The Egalitarian Conscience: Essays in Honour of G. A. Cohen

THE EGALITARIAN CONSCIENCE

G. A. Cohen Photograph by Christine Sypnowich

The Egalitarian Conscience Essays in Honour of G. A. Cohen

Edited by CHRISTINE SYPNOWICH

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Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York ß The several contributors 2006 The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2006 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by SPI Publisher Services, Pondicherry, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn, Norfolk ISBN 0-19-928168-8

978-0-19-928168-8

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Contents Acknowledgements Notes on Contributors Introduction: G. A. Cohen’s Egalitarian Conscience Christine Sypnowich 1. Left-Liberalism Revisited Will Kymlicka 2. Throwing a Veil Over Equality: Equality and Hypocrisy in the Revolutionary Era Jon Elster 3. Kant’s Arguments for His Formula of Universal Law Derek Parfit 4. Justice, Responsibility, and the Demands of Equality T. M. Scanlon 5. Self-Ownership and Conscription Hillel Steiner 6. Is the Basic Structure Basic? Samuel Scheffler 7. Choice and Incentive Inequality Susan Hurley 8. Mr. Morgan’s Yacht Jeremy Waldron 9. Begging Christine Sypnowich 10. Impartiality, Solidarity, and Distributive Justice John E. Roemer 11. Is there a Human Right to Democracy? Joshua Cohen Thanks G. A. Cohen Index

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Acknowledgements I am very grateful to the following people for their help in the preparation of this volume: David Bakhurst, Walter Bossert, Rahul Kumar, Alistair Macleod and G. A. Cohen. C.S.

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Notes on Contributors Joshua Cohen is Leon and Anne Goldberg Professor of the Humanities at MIT, and co-editor of Boston Review. Jon Elster is Professor of Political Science at Columbia University in New York. Susan Hurley is Professor of Philosophy at the University of Bristol and a Fellow of All Souls College, Oxford. Will Kymlicka is the Canada Research Chair in Political Philosophy at Queen’s University, Kingston, Ontario. Derek ParWt is a Senior Research Fellow at All Souls College, Oxford. John E. Roemer is Elizabeth S. and A. Varick Stout Professor of Political Science and Economics in the Department of Political Science at Yale University. T. M. Scanlon is Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity at Harvard University. Samuel ScheZer is the Class of 1941 World War II Memorial Professor of Philosophy and Law at the University of California, Berkeley. Hillel Steiner is Professor of Political Philosophy at the University of Manchester. Christine Sypnowich is Professor of Philosophy at Queen’s University, Kingston, Ontario. Jeremy Waldron is University Professor in the School of Law at Columbia University in New York.

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Introduction: G. A. Cohen’s Egalitarian Conscience Christine Sypnowich

Twenty years ago, on a crisp morning in the Wrst week of Hilary term at Oxford University, undergraduates, graduate students and dons Wlled a large lecture hall in the elegant Examination Schools on the High Street in Oxford. There was a palpable excitement in the room as everyone waited for the arrival of G. A. Cohen, the Marxist philosopher now at the summit of Anglo-American political philosophy as the newly appointed Chichele Professor of Social and Political Theory. The room hushed as a short, lively, sharp-eyed man with a shock of grey hair entered the room. His lecture was the Wrst of a series on ‘SelfOwnership, World-Ownership, and Equality,’ which explored a Marxist account of individual freedom, a topic not normally at the centre of Oxford philosophical debate. The audience contained leftists, hungry for some fodder for their radical beliefs, and analytical philosophers, uncertain whether socialist thought could be more than dogma. Both camps were disabused of their prejudices. The leftists learned how their deepest held convictions had to be subjected to rigorous scrutiny, whilst the analytical philosophers witnessed the defence of radical egalitarian argument by means of the techniques of analytical philosophy. That brilliant and witty lecture (and those that came after it) was a tour de force. It exempliWed Cohen’s passion for equality conjoined with a strong sense of intellectual responsibility. This volume celebrates the twentieth anniversary of Cohen’s tenure in the Chichele Chair. In his early days in the position, Cohen often confessed to a feeling of incongruity at All Souls College, an institution that represents not only what many take to be the ultimate success as a scholar but also the rareWed world of a kind of nineteenth-century gentlemen’s club, with Wne clarets, silver, and servants. Indeed Cohen had come a long way from his modest beginnings as the son of factory workers in Montreal. Gerald (Jerry) Cohen was born in 1941 to a Jewish Communist family. His parents had met in the course of struggles to build trade unions in the

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garment industry, facing brutal repression by the police. In the radical community of the Cohens, politics pervaded all: at the age of four Jerry was sent to a Jewish Communist school, Morris Winchewsky School. He stayed there until the age of eleven, when the school closed after raids by the ‘Red Squad’ of the Que´bec police at the height of Que´be´cois anti-communism in the McCarthy era. After his high school education at Strathcona Academy, Cohen received his BA from McGill University. In 1961 Cohen’s British life began when he went to New College, Oxford, to do his B.Phil. There, under the inXuence of philosophers such as Gilbert Ryle, Cohen acquired the techniques of analytical philosophy. Whereas most leftwing students were hostile to Oxford philosophy, seeing it as empty of political import, Cohen greeted this school of thought with enthusiasm. His Marxist background was so fundamental, so invulnerable to attack, that he inevitably viewed the techniques of analytical philosophy not as objects of suspicion, but as complementary to his radical beliefs. He recalls: ‘I came to Oxford already steeped in Marxism, and so, unlike most of my politically congenial contemporaries, I did not look to university philosophy to furnish me with ideas that mattered’ (Cohen 1988: xi). Accordingly, Cohen initially kept his politics and philosophical pursuits separate. His Wrst published paper (1966) dealt with a topic whose relationship to Marxism was remote. In 1963 Cohen was appointed Assistant Lecturer in Philosophy at University College, London; he was later made Lecturer and then Reader in Philosophy, and remained there until 1984. In this period Cohen began to integrate his political views with his philosophical research. He wrote a number of articles on Marxist themes, deploying his Oxford training to defend central tenets of historical materialism. His work of greatest distinction in this period was Karl Marx’s Theory of History: A Defence (1978), winner of the Issac Deutscher Memorial Prize. Cohen subsequently described the volume as ‘homage to the milieu in which I learned the plain Marxism which the book defended.’ It ‘reXected gratitude to my parents, to the school which had taught me, to the political community in which I was raised’ (Cohen 1988: xi). But this was no work of dogma or apologetics; it was an incisive, hard-headed argument for the plausibility of economic determinism. For Cohen, the project of defending Marx’s argument that society, politics, and the course of history are somehow determined by economic relations presented a clear challenge, which was to avoid a blithe conWdence that the realm of the non-economic must necessarily be serving the economy’s purposes. Such claims about the inevitability of functionalism needed a lot more in the way of careful defence than had been oVered to date. Cohen’s disciplined approach to Marxism in that celebrated book became the basis for a new school of thought that sought to apply the virtues of

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analytic philosophy, of coherence, rigour, and clarity, to the tenets of Marxism. Cohen modestly remarks that his book ‘received more attention than would otherwise have been bestowed on it by virtue of the coincidence that it appeared just when a number of other Marxist scholars were beginning to devote themselves to work of a kind that is now called ‘‘analytical Marxist’’ ’ (2000a: i). But I think it is fair to say that analytical Marxism would not have come to exist had it not been for Cohen’s work. This school of analytical Marxism included philosophers, sociologists, political scientists, and economists. They drew on the logical analysis of philosophy, the techniques of neoclassical economics, and the rational choice theory of contemporary political science. Four of them have contributed to this book—Jon Elster, John Roemer, and Hillel Steiner, among the original members, and Joshua Cohen, who joined the group in 1990. Throughout the 1980s Cohen, spurred on no doubt by this creative and stimulating circle of intellectual and political soulmates, published a number of articles on questions of exploitation, class and historical materialism in an analytical vein.1 The analytical or ‘no-bullshit’ Marxist approach continues, of course, to inform Cohen’s work (indeed the phenomenon of ‘bullshit’ so fascinated him that it became a subject in its own right in one of his published papers (Cohen 2002)). Cohen has also continued to consider the future of the left in his writings, contributing interesting and important philosophical ruminations on the future of both socialism and Marxism in a post-Soviet era. In the mid-1970s, however, a new theme emerged in Cohen’s scholarship, as he began to shift from a focus on Marxism per se to a critique of liberal political philosophy. Cohen’s Wrst target was the theory of a once-leftist libertarian, Robert Nozick, and his idea of the inviolability of the individual’s property holdings. It might be thought curious for a Marxist to bother even to consider such a view, that Marxists and libertarians are so far apart that fruitful debate is not even possible. However, Cohen noted a surprising commonality: both positions uphold a form of self-ownership—the idea that an individual is owner of his or her person and powers. However, for Cohen, in the libertarian case, the commitment to private property takes precedence over the ideal of the person as a free, self-determining being; in Cohen’s compelling argument, Marxism emerges as the philosophy with the more principled stance on liberty. One of Cohen’s papers (1990) in this period had the subtitle ‘Why Nozick Exercises some Marxists more than he does any Egalitarian Liberals,’ to communicate the irony that thinkers at some distance on the political spectrum have more in common with libertarians than their politically more 1 See Cohen (1988) for a collection of some of these writings.

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proximate liberal bedfellows. But the allusion to egalitarian liberals also presaged another focus in contemporary political philosophy that was to emerge in Cohen’s writings. By the 1980s, the era of glasnost and Thatcher, Cohen was investigating the principles and arguments of contemporary liberal egalitarianism. For him, the most important arguments for redistributing wealth were coming from liberals, and it was paramount that these arguments be critically scrutinized. And so he did, with characteristic aplomb. Cohen thus took up questions such as ‘equality of what?,’ whether the equal society should satisfy expensive tastes, and the scope or site of egalitarian obligation. The latter question—how much equality might demand of us—emerged in particular in Cohen’s investigation of Rawls. Cohen was dissatisWed with Rawls’s concession that the just society, premised on the idea that unequal wealth has no moral basis, might ascribe a role to incentives in order to increase its wherewithal to ameliorate disadvantage. The matter of personal enrichment and egalitarian justice prompted further ruminations. ‘If You’re an Egalitarian, How Come You’re So Rich?’2 was the humorous title that Cohen formulated to pinpoint his misgivings about how little Rawlsian justice can demand of people’s personal commitments. The title is, of course, irresistible, prompting wry grins among students at its very mention. That essay and the book that followed were stimulating, original, and peppered with Cohen’s usual evocative and humorous recollections and anecdotes (and even his penchant for show tunes!). They have been very inXuential and much cited. I well remember Cohen presenting an early version of the original paper to a group of moral and political philosophers; the penetrating argument must have been close to the bone for his audience, a number of whom engaged in some rather disgraceful special pleading as to why one should not be obligated to make personal contributions to the redistribution of wealth. The experience conWrmed the need for such an ‘egalitarian conscience’ to be applied, not just to philosophical argument about public justice, but also to both the argument and practice of private justice. Cohen’s concern about the scope of justice in egalitarian liberal argument, where egalitarian principle is curtailed by facts about human motivation, has broadened into an ongoing inquiry into the role of facts in normative theory. In this, Cohen is both expounding central diYculties of egalitarianism and delving into meta-ethics and foundational questions about moral and political theory. What has been published thus far promises to take his work to further, interesting new directions. Thus, this book, whilst it seeks to honour

2 See Cohen (2000b, 2000c).

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Jerry and his wonderful intellectual career, cannot be said to be providing anything like a Wnal comment on it. All the chapters draw on themes from Cohen’s work in fascinating and novel ways. Chapter 1, ‘Left-Liberalism Revisited,’ by Will Kymlicka, a former student of Cohen, considers how the left’s traditionally uneasy relationship with liberalism has been challenged by recent left-wing engagements with liberal conceptions of equality, of which Cohen’s work, of course, is the pre-eminent example. Kymlicka argues that the liberal concern for individual responsibility has proved a necessary corrective to traditional left-wing ideas of egalitarianism that endorse the unconditional redistribution of wealth. Jon Elster, one of Cohen’s original analytical Marxist colleagues, takes up the problem of personal integrity so central to Cohen’s work in Chapter 2, ‘Throwing a Veil Over Equality: Equality and Hypocrisy in the Revolutionary Era’. Elster considers how the American and French revolutionaries, famous defenders of the ideal of equality, contrived to evade the implications of that ideal when it came to slaves or workers. Elster contends that the hypocrisy of the revolutionaries is particularly egregious given that they stood to proWt personally from the reduced scope of their egalitarianism. The problem of duty is an ongoing theme in Cohen’s work. In Chapter 3, ‘Kant’s Arguments for His Formula of Universal Law’, Derek ParWt, one of Cohen’s colleagues at All Souls College, considers the structure of the argument for duty in the Kantian context in which it was most inXuentially formed. Kant notoriously argues that the supreme principle of morality must be purely formal, by which he means that it does not direct us to act in order to achieve certain ends. Thus any principle directed to the realization of certain ends must be merely hypothetical in character, and its motivational grounds subjective. But, ParWt points out, Kant overlooks a third possibility: namely, that there can be substantive categorical principles that objectively require us to realize certain ends regardless of our inclinations. ParWt also claims that Kant’s arguments make some other mistakes. In Chapter 4, ‘Justice, Responsibility, and the Demands of Equality,’ Thomas Scanlon considers the disagreement between Cohen and Rawls on the question of whether individuals should be held responsible for their tastes and preferences. Scanlon notes the diVerence in principle, since the primary goods measure of Rawls holds individuals responsible for their choices as to how to deploy these goods, whereas Cohen’s aim is to equalize access to advantage, and thereby the satisfaction of persons, however costly. Nonetheless, Scanlon argues that since Cohen concedes that practical matters of application might compromise egalitarian principle, the two thinkers might be, in practice, not that dissimilar.

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In Chapter 5, ‘Self-Ownership and Conscription’, Hillel Steiner, one of Cohen’s analytical Marxist colleagues and a left-libertarian, argues that an exception to Cohen’s understanding of the right of self-ownership might be warranted in some cases of conscription. Steiner considers cases where one is legitimately compelled to perform uncontracted services for others by being forced to rescue them from violations of moral rights. For Steiner, compensation for such conscription renders it consistent with the right of selfownership. In Chapter 6, ‘Is the Basic Structure Basic?’, Samuel ScheZer’s contribution focuses on Cohen’s recent arguments for extending the scope of justice beyond Rawls’s formulation. ScheZer argues for the merits of Rawls’s argument that the primary subject of justice should be restricted to social institutions. ScheZer contends that, whether or not one agrees with Rawls’s view of what should count as the subject of justice, Cohen is wrong to understand the upshot of this to be either a paltry measure of redistribution or the accommodation of the untrammelled pursuit of selWsh interests. In Chapter 7, ‘Choice and Incentive Inequality’, Susan Hurley, another colleague from All Souls, considers the implications of self-interest for equality in the context of the ‘luck egalitarian’ view that an individual’s wealth is justly owned only if it is the result of a responsible choice. A possible response to Cohen’s argument against incentives might be that since individuals can choose to work harder on behalf of the disadvantaged, they are also partly responsible for, and entitled to, the extra wealth they produce. Hurley rejects this view, noting that were the tax rate adjusted to accommodate responsibility for being productive, it would whittle away the beneWts of productivity for redistributive purposes. In Chapter 8, ‘Mr. Morgan’s Yacht’, Jeremy Waldron takes up Cohen’s inquiry into freedom and property. Waldron celebrates Cohen’s evocative example for its illustration of how, despite the claims made by libertarians, property restricts the freedom of the majority for the sake of the freedom of the propertied. However, although Cohen’s insistence on a view of liberty that is not moralized is salutary in this debate, Waldron notes that there is also some loss. There remains some moral appeal to the idea of possession even if freedom, suitably demoralized, is not at issue. Moreover, there is some risk that Cohen’s ‘denuded’ conception of liberty will fail to capture the signiWcance of liberty and why we should care about it. In Chapter 9, ‘Begging’, Christine Sypnowich considers the moral dilemma confronting pedestrians who encounter beggars in well-oV societies governed by social welfare systems. If Cohen’s call for extending the scope of justice to the domain of the personal is taken seriously, it would seem to call for generosity towards people who ask for money on city streets. Sypnowich

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argues that principles of justice, in fact, tell against giving alms. Nonetheless, she concludes that the phenomenology of begging rightly produces ambivalence among advantaged persons who are asked to contribute to the disadvantaged, in however an ad hoc and unsystematic way. In Chapter 10, ‘Impartiality, Solidarity, and Distributive Justice’, John Roemer, one of the original analytical Marxists, considers the role of impartiality in theories of distributive justice. Impartiality is modelled by Rawls in his famous thought experiment of a veil of ignorance, where individuals reason about principles of justice without knowing fundamental aspects of themselves—such as talent or family background. Roemer argues that the veil of ignorance delivers recommendations that are inconsistent with prioritarianism, that is, the view that priority should be given to ameliorating the disadvantage of the worst oV. Hence prioritarianism, which is after all far weaker than strict egalitarianism, cannot be justiWed by appeal to a veil of ignorance. For Roemer, the veil of ignorance achieves impartiality, but impartiality needs to be conjoined with a principle of solidarity in order to justify the redistribution of wealth. Roemer describes the resource allocation rules that jointly satisfy impartiality, priority, and solidarity. Chapter 11, ‘Is there a Human Right to Democracy?’, is contributed by Joshua Cohen, one of the members of the analytical Marxist group. Joshua Cohen answers ‘no’ to the question. He aYrms that democracy is a political order that produces all kinds of important beneWts and that justice requires democracy. However, in contrast to G. A. Cohen’s insistence that facts not infect principles, Joshua Cohen calls for taking account of context in this case at least: democracy is a demanding political ideal that would be inappropriate as an object of global responsibility. A society might fall short of being fully democratic without violating human rights. Moreover, if we insist that there is a human right to democracy, a strategy designed to elevate democracy by giving it some kind of universal status might in fact end up diluting its substance. Sadly, one of Jerry’s interlocutors is notable for her absence. Susan Moller Okin was originally to honour this book with a contribution. Cohen’s study of the role of personal obligations in the realization of egalitarian ideals paid tribute to the pioneering feminist insight that ‘the personal is political’ and to Okin’s original and important work on justice and the family. Her tragic death means that we do not have her thoughts in the pages that follow, nor in future debates about justice and equality. This is a great loss. Jerry Cohen has the last word in the volume in a short ‘thanks’ of charm and humour. His words demonstrate how the contributors were moved to pen their opinions not just to express their scholarly admiration but also out of aVection and warm regard.

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Cohen, G. A. (1966). ‘Beliefs and Roles’. Proceedings of the Aristotelian Society, 67. —— (1978). Karl Marx’s Theory of History: A Defence. Oxford: Oxford University Press. —— (1988). History, Labour and Freedom: Themes from Marx. Oxford: Oxford University Press. —— (1990). ‘Why Nozick Exercises Some Marxists More than He Does any Egalitarian Liberals’, Canadian Journal of Philosophy, 6 (Suppl.). —— (2000a). Karl Marx’s Theory of History: A Defence, rev. edn. Oxford: Oxford University Press. —— (2000b). ‘If You’re an Egalitarian, How Come You’re So Rich?’, Ethics, 4. —— (2000c). If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Harvard University Press. —— (2002). ‘Deeper into Bullshit’, in S. Buss and L. Overton (eds.), Contours of Agency. Cambridge, MA: MIT Press.

1 Left-Liberalism Revisited Will Kymlicka

In recent publications, G. A. Cohen has engagingly described his upbringing in the Jewish Communist community of Montreal, with its Party schools, summer camps, and anthems (Cohen 2000). I was raised in a more moderate left-wing family, supporters of Canada’s social democratic party, without much ideological or partisan fervour. But we too had our protest songs. And I suspect that, in both repertoires, the word ‘liberal’ was a term of abuse. One of our favourite family songs was Phil Ochs’s ‘Love Me, I’m A Liberal’, a caustic attack on the moral vacuity of many self-declared liberals: I cried when they shot Medgar Evers Tears ran down my spine I cried when they shot Mr. Kennedy As though I’d lost a father of mine But Malcolm X got what was coming He got what he asked for this time So love me, love me, love me, I’m a liberal I go to civil rights rallies And I put down the old D.A.R. I love Harry and Sidney and Sammy I hope every colored boy becomes a star But don’t talk about revolution That’s going a little bit too far So love me, love me, love me, I’m a liberal I cheered when Humphrey was chosen My faith in the system restored I’m glad the commies were thrown out Of the A.F.L. C.I.O. board I love Puerto Ricans and Negroes As long as they don’t move next door So love me, love me, love me, I’m a liberal

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Will Kymlicka The people of old Mississippi Should all hang their heads in shame I can’t understand how their minds work What’s the matter don’t they watch Les Crain? But if you ask me to bus my children I hope the cops take down your name So love me, love me, love me, I’m a liberal I read New Republic and Nation I’ve learned to take every view You know, I’ve memorized Lerner and Golden I feel like I’m almost a Jew But when it comes to times like Korea There’s no one more red, white and blue So love me, love me, love me, I’m a liberal I vote for the Democratic Party They want the U.N. to be strong I go to all the Pete Seeger concerts He sure gets me singing those songs I’ll send all the money you ask for But don’t ask me to come on along So love me, love me, love me, I’m a liberal Once I was young and impulsive I wore every conceivable pin Even went to the socialist meetings Learned all the old union hymns But I’ve grown older and wiser And that’s why I’m turning you in So love me, love me, love me, I’m a liberal

It still packs a punch forty years after it was written. We all recognize the type (and perhaps the tendencies within ourselves), even if the incidental details have changed. The lyrics could easily be updated to cover today’s generation of self-declared liberals (replace Harry and Sidney with Denzel; Humphrey with Clinton; Korea with Iraq). Indeed, the Internet is full of such updated versions. For those of us raised on such songs, the term ‘liberal’sticks in the throat. And yet today it often seems that there is no way of thinking and talking outside the framework of liberalism. This is partly a result of its sheer dominance in public culture and academic debate. The hegemony of liberal political theory is so complete that it provides ‘the only political language that can sound a convincing moral note in our public realms’ (Grant 1974: 5). If that were true in 1974, it is even more true today, post 1989. Anyone on the left who wants to be heard, or at least to be taken seriously, has to use the language of liberalism.

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But the left’s embrace of liberal discourse is not just strategic or instrumental. Liberalism has proven to have surprising intellectual power and depth. One could have anticipated liberals developing reWned theories of property rights, or of the virtues of a constitutional bill of rights, that is, of bourgeois freedoms. What was more surprising is the intellectual power of liberal writings on the issues of central concern to the left: namely, distributive justice, and egalitarian distribution in particular. From 1970 to 1985, liberal authors developed a level of theoretical sophistication in discussing ideas of egalitarianism and distributive justice that was embarrassingly absent in both the social democratic and communist traditions. And, as a result, many (though not all) recent left theorists of justice, including Cohen himself, have situated their own work within a broadly liberal framework. In this Chapter, I discuss how liberal conceptions of equality have been embraced by the left, and some of the objections this has raised.1 I begin by exploring why the traditional left approach to justice was inadequate, and how recent liberal theories of justice helped to Wll the gap. I then discuss some powerful critiques of this marriage between the left and liberalism, and proposed alternatives to it, before concluding with a (qualiWed) defence of left-liberalism.

W HY T HE LE FT NEE DED A NEW THEORY OF JUSTICE Left-wing defenders of egalitarianism have always provoked a range of objections, to which they have developed a variety of responses. One of the most familiar and important critiques is that state policies to achieve (or impose) equality would lead to a kind of drab uniformity. Everyone would be allocated an identical package of goods and services, regardless of their individual preferences or projects. In response, social democrats have long argued that they seek to reduce social inequality precisely in order to allow genuinely individual diversity to Xower. The great British socialists like Crosland or Tawney argued that the depth and omnipresence of class stratiWcation artiWcially limited people’s contacts and cultural repertoires, socializing people into a constraining set of class identities, expectations, and prejudices (Crosland 1964: 77). In class-divided societies, people’s preferences and projects are heavily class-determined: people of diVerent classes attend diVerent sporting events, listen to diVerent music, read diVerent magazines, wear diVerent styles 1 See Sypnowich (2003) for a related discussion of liberalism’s contribution to the left’s theorizing about equality.

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of clothes, and so on.2 In an egalitarian society, these variations would no longer reXect one’s unchosen and inherited social position, but rather genuine diVerences in individual talents and temperament. In that sense, a socialist society would be a more truly individualized society than our current society. I have always found this argument a powerful and compelling one. At any rate, it temporarily stumped my right-wing friends at school. But it raises more questions than it answers. It is Wne to say that reducing inequalities due to inherited social positions does not require erasing the diversity of individual talents and temperament. But how do we deal with the distributive implications of these individual variations? In what ways, if any, should the allocation of resources be inXuenced by these diVerences in individual talents and temperaments? This is not an easy question for the left. There are really two separate questions here. First, how should society deal with the fact that people are born into diVerent locations in the ‘natural lottery’? People are born with diVerent sets of natural capacities and disabilities. Some have natural talents that, with training, are in high demand, and for which others would happily pay a great deal of money to watch or to hire. Others are born with natural disabilities that make it diYcult for them to engage in economically productive work, and which may require expensive medicine or care. Even if they start with the same class background and the same initial bundle of goods or money, people with such diVerent natural endowments will quickly come to have vastly unequal holdings, and the latter group may indeed be unable to meet their own needs. Second, how should society deal with the fact that people have diVerent preferences about when and how to engage in economic activity? Some people prefer part-time work (or no work at all) so as to have more time for hobbies, travel, or spiritual pursuits, while others are workaholics, and are willing to sacriWce their leisure for extra income. Some prefer to spend their income immediately, while others defer consumption and put aside money in long-term savings. Some are willing to take chances with their money, engaging in high-risk investments or gambles, whereas others are more cautious. Here again, even if they start with the same class background and the same initial bundle of goods or money, people with such diVering preferences will quickly come to have unequal holdings. In short, diVerences in natural talents and in preferences regarding work and consumption can generate inequalities in resources that are every bit as large, and as signiWcant for people’s lives, as those due to class position. These inequalities are the predictable result of diversity in individual talents and temperaments, at least if individuals are free to decide when and where to 2 See Bourdieu (1987) for the persistence of these class distinctions.

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spend their money. If we say that an egalitarian society will not attempt to suppress or erase these sorts of individual variations, how then should society respond to the economic inequalities that they predictably generate? Neither Marxists nor social democrats have addressed these questions adequately. As Cohen has noted, many Marxists have avoided both questions by invoking the fantasy of abundance. Under communism, the forces of production will develop to such a point that there will be no scarcity: people can simply take what they like from the pool of resources, even if they have contributed little to it (Cohen 1990). The social democratic left has had a more indirect way of avoiding these questions. There has been a tendency to assume that variations in talents and preferences are not as large as commonly supposed, and/or that these variations would be smaller under socialism. Social democrats have typically assumed that diVerences in income are not primarily due to diVerential natural endowments or diVerences in people’s preferences and choices, but rather due to inequalities in people’s upbringing and opportunities. It may seem that some high-income earners are more ‘talented’ than others, or that some poor people show less ‘prudence’ or ‘initiative’ than others, but if we look carefully, we will discover that these diVerences in marketable skills and economic behaviour are the result of some prior social inequality. In a world where class stratiWcation has been removed, so that everyone has the same access to decent education and health care, and the same opportunity and encouragement to develop their talents and ambitions, diVerences in people’s marketable skills and work-related choices will diminish. In short, social democrats have typically assumed that the economic inequalities generated by variations in individual talents and choices are simply not a major issue, at least in comparison with the overriding concern to reduce the pernicious eVects of class stratiWcation. As Crosland put it, the goal of social justice is to ‘weaken the existing deep-seated stratiWcation, with its concomitant feelings of envy and inferiority, and its barriers to uninhibited mingling between the classes’ (1964: 77). Even more explicitly, Tawney argued: What is repulsive is not that one man should earn more than others, for where community of environment, and a common education and habit of life, have bred a common tradition of respect and consideration, these details of the countinghouse are forgotten or ignored. It is that some classes should be excluded from the heritage of civilization which others enjoy, and that the fact of human fellowship, which is ultimate and profound, should be obscured by economic contrasts, which are trivial and superWcial. (1964: 113)

On this view, once we have abolished inherited class stratiWcation, any inequalities that result from individual talents or choices are simply ‘details of the countinghouse’ to be ‘forgotten or ignored’.

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Thus, the social democratic left has combined a passionate commitment to Wghting the injustice of inherited social inequalities with an indiVerence to questions of the justice or injustice of individual inequalities. It is worth noting that Tawney does not say that inequalities rooted in individual talents or choices are to be considered ‘fair’ or ‘just’; that once class stratiWcation has been ended, those who earn more than others deserve their extra income, in virtue of their special talents, higher productivity, wise choices, or lucky gambles; that people ought to be rewarded for their talents, or held responsible for their choices. He just says that such individual inequalities are not ‘repulsive’. They may or may not be fair, they may or may not be deserved, but this is not a matter that we need to worry about, at least not until we have tackled the more serious issues of class stratiWcation. At one level, this strategy—highlighting the injustice of social inequalities while leaving the injustice of individualized inequalities unexamined—makes political sense. After all, the left has a clear argument for reducing social inequality, and a powerful working-class constituency for this issue. By contrast, there is no clear agreement, even within the working class, on the fairness of inequalities due to individual choices and talents. Studies suggest that citizens generally, including the working class, have ambivalent views about the fairness of rewarding natural talents, or the extent to which people should be held responsible for the costs of their choices (Miller 1992; Swift et al. 1995). Unfortunately, this strategy seems to have failed. The obvious problem is that virtually any real-world political programme for reducing social inequalities will inevitably become entangled with issues of the fairness of individualized inequalities. This is true at both ends of the welfare state—in terms of who pays for redistributive programmes, and who beneWts from them. There are some redistributive taxes that exclusively target the intergenerational transmission of class privileges: an inheritance tax or estate tax is an example. But a modern welfare state cannot be funded solely by such measures. Instead, the funding of redistributive policies typically relies on schemes of progressive income taxation. However, some high-Xyers believe that their extra income is an individualized inequality, that is, the result of their special talents and/or their hard work, not their inherited class position. They may have attended the same state schools, played in the same public parks, and watched the same television shows as other kids. If they now earn more money, it is because they were simply more talented (and/or made better decisions about how to develop their talents and deploy their resources). And so they may think that their unequal income should fall under Tawney’s ‘forgotten or ignored’ category, since it is not the result of invidious class stratiWcation. They may feel that they deserve their extra income, and have rightfully earned it, and

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that the government has provided no valid justiWcation for taking away ‘their’ money. A similar issue arises in terms of the beneWciaries of redistribution. Some welfare state policies focus exclusively on people born into disadvantaged social circumstances—the US ‘Head Start’ programme for children in innercity neighbourhoods is an example. These policies are targeted speciWcally at groups that lack Tawney’s ‘community of environment, and a common education’, and who have been ‘excluded from the heritage of civilization’. But many other welfare state policies—income assistance; unemployment insurance; public housing—provide beneWts to people based on their current economic status rather than inherited social position. And in some cases, this current economic status may be the result, at least in part, of their own lack of marketable skills or previous choices. Imagine that someone drops out of college, takes on a series of temporary jobs as he or she travels across the country, has minimal savings, and now can only get seasonal employment. Should the others in the class, who stayed in school, have full-time employment, and growing savings, be expected to fund a generous unemployment scheme or income supplement plan that would reduce the income inequality between them? Why shouldn’t this inequality too fall under the ‘forgotten or ignored’ category, since it is not rooted in some prior class stratiWcation? Indeed, insofar as the inequality is the result of the person’s own voluntary choice to drop out of school and travel, can we not say that this inequality is deserved, and that it would be unfair to force more diligent students and workers to subsidize his or her way of life? The sustainability of the welfare state depends on providing plausible answers to these questions. The social democratic strategy of defending the welfare state as a tool for reducing social inequality while remaining agnostic on the fairness of individualized inequalities has simply failed in this regard. This might have been a suYcient approach in the nineteenth century, when resources were being redistributed from a rich but non-working capitalist rentier class, which inherited its lands or stocks, to a poor but full-time employed working class. But in today’s economy, redistribution is often perceived to Xow from hard-working and talented high earners to unemployed or underemployed people with fewer marketable skills, some of whom are assumed to prefer public beneWts to job training or full-time work.3 And in this context, there is no way to avoid issues of the fairness 3 Note that this perception is likely to grow, not diminish, as the basic framework of the welfare state is established. For example, as universal free and compulsory education is established, and as non-discrimination laws are enforced, it becomes more plausible to think that economic inequalities are due to individual talents or choices rather than inherited social position.

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of individualized inequalities. We need to tackle head on whether the talented high earners really are entitled to all their market earnings, and when it is appropriate (or not) to assist those whose lack of marketable talents or previous lifestyle choices have put them in a position of economic inequality. Without any clear answer to these questions, the social democratic left was ill-prepared to defend the welfare state against the New Right backlash. Social democrats argued that the complex normative issues relating to the fairness of individualized inequalities can be set aside, in order to focus on the more urgent and unambiguous injustices of class stratiWcation. This was a humane sentiment, but it has come to be seen by many people as a sign of moral Xabbiness, an unwillingness to take a stand on fundamental questions of fairness and responsibility. Even worse, in practice, it was seen as institutionalizing a fundamental unfairness, that is, as penalizing ‘decent’ hard-working and productive citizens in order to reward and subsidize lazy or irresponsible citizens who are unable or unwilling to do an honest day’s work. Nor was it simply New Right ideologues who were making this objection. Evidence shows that large numbers of the working class were also distressed at what they perceived as the tendency of the welfare state to penalize hard-working citizens and to reward indolent or irresponsible citizens (Bowles and Gintis 1998; 1999; Gilens 1999).4 This of course was not Tawney’s intention. He did not aYrm that the talented are entitled to their extra rewards, or that the indolent or imprudent have a claim to public subsidies. He simply avoided these ‘details of the countinghouse’. But citizens look to their public institutions and policies to announce and enact appropriate moral norms, including norms of individual responsibility and fairness. And the social democratic welfare state was found wanting in this respect. It was perceived as vague, and perhaps even perverse, in the moral messages it was sending and enacting with respect to the fair treatment of the diversity of individual choices and talents. The social democratic strategy was not only politically weak but it was also philosophically suspect. After all, how can we be so conWdent that social inequalities are unjust if we are so uncertain about the fairness of individualized inequalities? What is it about social inequalities that puts them on a diVerent moral plane from individualized inequalities? If individualized inequalities should be ‘ignored or forgotten’, even where they are large and unchosen, why shouldn’t large and unchosen social inequalities similarly be ignored? Without further argument, the left’s preoccupation with reducing a particular kind of social inequality became perceived as a form of ‘special 4 Much of this evidence is American, and may not be as prevalent in the European context.

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interest’ or ‘special pleading’, serving the self-interest of a particular constituency, disconnected from any deeper account of the principles of justice. Given these deWciencies of the traditional social democratic strategy, it became clear that the left needed a new account of distributive justice, one that tackled, rather than evaded, issues of individualized fairness and responsibility.

THE LIBERAL CONTRIBUTION This is where liberal theory came to the left’s rescue. Starting in the 1970s, liberal egalitarians developed a new theory of distributive justice that integrated issues of social inequality and individualized inequality. More speciWcally, liberal egalitarians subsumed both types of inequality under the broader distinction between ‘choices’ and ‘circumstances’. For liberal egalitarians, the fundamental question to be asked of any inequality is not whether it is due to class position or more individualized factors, but whether it is due to people’s choices or their circumstances. The underlying idea here is that people’s fate should be determined by their choices—by the decisions they make about how to lead their lives—not by the circumstances that they happen to Wnd themselves in. In more technical language, a distributive scheme should be ‘endowment-insensitive’ and ‘ambition-sensitive’ (Dworkin 1981: 311). People’s fate should depend on their ambitions (in the broad sense of goals and projects about life), but should not depend on their natural and social endowment (the circumstances in which they pursue their ambitions). As Dworkin puts it, a just distribution must identify ‘which aspects of any person’s economic position Xow from his choices and which from advantages and disadvantages that were not matters of choice’ (1985: 208). These ‘circumstances’ include the class inequality that social democrats have always emphasized, and so this liberal commitment to neutralize the eVects of unequal circumstances supports the traditional left commitment to reduce class stratiWcation. But ‘circumstances’ also include people’s natural endowments, that is, their place in the natural lottery. These too are unchosen and undeserved: no one chooses or deserves to be born with a particularly high IQ, or with particular physical or mental inWrmities. On the liberal egalitarian model, inequalities in resources that are the result of one’s place in the natural lottery are as undeserved as inequalities in resources that are the result of one’s place in the class structure. As a result, this model provides a justiWcation for taxing the talented high-Xyers, even if they were not born into a privileged class position.

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Conversely, inequalities that are the result of people’s own choices about how to lead their lives—such as the choice to save rather than consume, or to give up leisure for higher income—are legitimate. People should be free to make diVerent choices about how to lead their lives—including diVerent choices about the trade-oV between work and leisure, or caution and risk, or consumption and savings—and people should accept responsibility for the costs of these choices. If someone chooses to work fewer hours in order to pursue his or her passion for surWng, he or she should not expect those who work longer hours to subsidize the same lifestyle. As a result, this model provides a justiWcation for expecting people to exercise a degree of prudence and self-discipline in their individual behaviour. This is the view that Dworkin calls ‘equality of resources’, and which others call ‘luck egalitarianism’ (Anderson 1999), ‘choice egalitarianism’ (Smilansky 2003), or ‘equality of fortune’ (Rakowski 1992). These are all diVerent ways of highlighting the central role of the distinction between choices and circumstances. This is just the briefest outline of the approach, and a fuller presentation would require addressing many complications.5 But enough has been said, I hope, to show why many people on the left have seen this approach as a helpful addition to the egalitarian tool kit. It not only supports the original social democratic commitment to redressing class stratiWcation but also grounds this commitment in a broader moral principle of remedying unequal circumstances, while providing normative guidance for dealing with the hard issues of individualized inequalities. It avoids, in particular, the unintended and perverse consequence of penalizing prudent behaviour and rewarding irresponsible behaviour. As Cohen puts it: ‘Dworkin has, in eVect, performed for egalitarianism the considerable service of incorporating within it the most powerful idea in the arsenal of the anti-egalitarian right: the idea of choice and responsibility’ (1989: 933). As a result, many theorists on the left have accepted that this sort of liberal egalitarianism provides the most promising starting point for socialist theorizing about distributive justice, including Arneson (1993), Van Parijs (1995), Roemer (1994), and Cohen himself.6 For all these theorists, a central virtue of this sort of liberal egalitarianism is that it adds substance to the familiar socialist claim that an egalitarian society would respect the diversity of individual projects and preferences. Socialists had long argued that an egalitarian society would enable genuine diVerences in individual temperament 5 Kymlicka (2002: ch. 3) gives a fuller presentation. 6 ‘My root belief is that there is injustice in distribution when inequality of goods reXects not such things as diVerences in the arduousness of diVerent people’s labors, or people’s diVerent preferences and choices with respect to income and leisure, but myriad forms of lucky and unlucky circumstance’ (Cohen 1997: 12).

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and ambitions to Xourish, but had never addressed the distributive consequences of these individual variations. This gap exposed the left to the charge that it was either insincere in its commitment to individual diversity, and/or unable to respond in a morally responsible way to it. Liberal egalitarianism helps Wll this gap. Of course, this marriage of the social democratic left and liberal egalitarianism is not without cost. While liberal egalitarianism provides a principled basis for responding to individualized inequalities, some people on the left are likely to see that these principles are unduly rigid, even simplistic. The principle that distribution should be endowment-insensitive, for example, contradicts at least some strands of traditional socialist thought. As Miller has shown, the socialist tradition has often accepted that those who contribute more should earn more, even if this greater contribution is due solely to inherited natural talents, rather than any extra eVort or training. (Indeed, they have supported higher rewards for the more productive even when the most productive people actually make less eVort, because their natural talents make it so easy for them to produce more.) Of course, few social democrats would accept that the talented are entitled to all of their extra income, but they may feel uncomfortable with the idea that no extra income is justiWed in virtue of greater natural talents. Similarly, many social democrats may feel that the principle that distribution should be ambition-sensitive is too harsh in its insistence that people pay for the costs of their sometimes ill-advised choices. Many people on the left are more forgiving of people’s choices, more willing to give people a second chance. They are more attracted to some version of the prodigal son principle—that even if people squander their initially equal share of resources, they should be able to return and get their share topped up, at least once (or twice, or . . . ). Of course, few social democrats would accept that the indolent or imprudent should have all of the costs of their choices covered by society, no matter how often they squander their opportunities and resources, but they may feel uncomfortable with the idea that no subsidy should be available to oVset the costs of people’s expensive tastes or imprudent choices. In short, many people on the left would like more wiggle room for rewarding talents and subsidizing costly lifestyles than the liberal egalitarian framework seems to allow. This can be seen as a sensible recognition of the moral complexity of the issues, and a wise refusal to draw sharp lines where none exist. On the other hand, it’s precisely this desire for wiggle room that gave social democrats a reputation for moral Xabbiness. Rightly or wrongly, this hesitation to endorse clear standards of responsibility has been interpreted as evidence of a lack of moral compass, or even of moral perversity. While social democrats are always happy to tax the prudent and hard-working, they

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seem unwilling or unable to judge or criticize the behaviour of anyone who receives public beneWts. This perception of a moral vacuum has been ruthlessly exploited by the New Right to delegitimize the very idea of egalitarianism and the welfare state. In one sense, this debate about whether liberal egalitarian principles are too rigid is quite misleading. There is no way in practice to implement these principles in a rigorous way. Public institutions cannot eVectively track the choices/circumstances distinction, and it would be a gross violation of privacy even to try. As Arneson puts it, it would be ‘preposterous’ to try to measure the extent to which inequalities are due to choices or circumstances: The idea that we might adjust our distributive justice system based on our estimation of persons’ overall deservingness or responsibility seems entirely chimerical. Individuals do not display responsibility scores on their foreheads, and the attempt by institutions or individuals to guess at the scores of people they are dealing with would surely dissolve in practice into giving vent to one’s prejudices and piques. (2000b: 97)

Hence any real-world policies of (re)distribution will inevitably end up allowing the talented to keep some of their undeserved high income, while also subsidizing some expensive tastes and voluntary inequalities (Dworkin 1981: 312–14, 327–8, 333–4). In this sense, a certain amount of wiggle room is institutionally inevitable.7 The real-world eVect of these principles is further diluted when we understand that justice is not the only factor to be considered when designing public policies. For example, there may be reasons of eYciency to provide 7 The question of which institutions would best implement liberal egalitarianism is contested. Dworkin’s own proposal involves a complex mixture of markets and insurance schemes, which he describes as a ‘third way’ between traditional socialist equality and free-market libertarianism (Dworkin 2000: 7). For example, he argues that his theory explains why we need both a system of public health care and also the option to buy private health insurance: the former is needed to equalize circumstances and the latter to be choice-sensitive. Similarly, he says that his theory shows the necessity of combining generous welfare provisions (to equalize circumstances for those with lesser natural talents) with certain workfare requirements (to ensure that talented but lazy people pay for the costs of their choices) (ibid., chs. 8–9). Critics, however, have described these institutional proposals as ‘surprisingly conservative’ (Macleod 1998: 151). They are primarily focused on ex post corrections to the inequalities generated by the market—that is, they take the existing level of inequality in market income as a given, and ask how best to tax some of the unequal income of the advantaged and transfer it to the disadvantaged. But these proposals leave unaddressed an important plank in his theory—namely, that people should have equal ex ante endowments when they enter the market. Others have attempted to develop more thorough-going proposals for achieving equality of resources. Indeed, many of the most creative suggestions for reWning and implementing such a theory have come from erstwhile Marxists and socialists like Van Parijs (1991, 1995, 2000); Roemer (1993, 1994, 1995, 1999); and of course Cohen himself. I discuss some of these proposals in Kymlicka (2002: ch. 3).

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Wnancial incentives to those with scarce natural talents, if they would not otherwise agree to exercise those talents. It may be rational for society to provide such incentives, even if the talented have no claim of justice to them. There may also be paternalistic reasons to limit the extent to which individuals can squander their resources. For example, before the prodigal son risks his inheritance, society may insist that he set aside some of his share for mandatory health and social insurance plans, so that he can land on his feet if things go wrong. We may also provide support to the voluntarily disadvantaged for reasons of public order and the common good (to reduce the likelihood of crime, disease, social conXict, etc.), or simply as an expression of mercy and compassion. It may be rational for society to provide such support, even if the indolent or imprudent have no claim of justice to it. All of this means that there will be considerable room within public institutions for some people to extract Wnancial advantages from their scarce talents, and for others to gain public subsidies for their expensive tastes. Liberal egalitarianism, in practice, will not be nearly as rigid as its abstract principles might suggest. Yet it may nonetheless be important for institutions to assert and defend these principles, no matter how imperfect their implementation. Where public institutions articulate these principles, they convey an important message to citizens about what they can rightfully claim from society. For example, these principles tell the talented that they have no claim of justice to any extra income that they can extract based on their natural talents, and that they should not object to the taxing of this income. There may be no feasible way, institutionally, to prevent the talented from extracting such extra income. Where certain socially valuable talents are in scarce supply, those who possess these talents can eVectively blackmail society into paying them more, or taxing them less. But institutions can make clear that these inequalities are not fair, and that any citizen with a sense of justice would not attempt to extract extra beneWts from the accident of their natural talents. Similarly, liberal egalitarian principles tell citizens that they have no claim of justice to subsidies for their expensive tastes, and that they should not ask others to pay for the costs of their choices. There may be no feasible way, institutionally, to prevent people from extracting such subsidies, since we often cannot distinguish the voluntarily and involuntarily disadvantaged. But institutions can make clear that such subsidies are unfair, and that any citizen with a sense of justice should not attempt to externalize the costs of their choices on others. In these ways, as Cohen (1997, 2000) has emphasized in his recent work, institutions can and should promote a certain ethos of justice, encouraging citizens to critically examine their own claims on society, whether it is to

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higher income or subsidized lifestyles. Institutions inevitably shape citizens’ sense of what it is to which they are rightfully entitled. Where institutions are explicitly grounded on liberal egalitarian principles, people are told they are entitled to remedies for unequal circumstances, but not to rewards for undeserved natural talents or to subsidies for expensive ways of life. Inevitably some selWsh people will violate these principles, and will try to work the system to gain more than their rightful entitlement. But those with a sense of justice will operate within these norms, and will forego any opportunities that arise to exploit their scarce natural talents or externalize the costs of their choices on others. Viewed this way, liberal egalitarianism is Wrst and foremost a theory about how people understand and formulate their moral claims, not about institutional design.8 It is a theory about what sorts of claims individuals can rightfully make against the state, not a proposal about how public institutions should seek to test the validity of these claims. In fact, institutions will often be unable to test the moral validity of these claims, since they cannot identify the respective roles of choices and circumstances. In this sense, liberal egalitarianism depends heavily on people internalizing its principles, which in turn depends on the development of a social ethos of justice, based in part on the articulation of these principles by public institutions. We might even say that liberal egalitarianism is fundamentally a theory of civic virtue: it is a theory about what a morally serious citizen would consider when judging his or her rightful entitlements, and when framing his or her claims against the state. While public institutions are often unable to prevent selWsh citizens from claiming more than their rightful entitlement, they can promote a social ethos that encourages citizens to internalize and act upon a sense of justice.

8 As Cohen notes, the centrality of social ethos to the liberal egalitarian project has been occluded by Rawls’s famous claim that principles of justice apply to the ‘basic structure of society’. On one reading of this claim, Rawls is saying that while public institutions must operate on the basis of principles of justice, individuals in their own economic decisions need not, and may instead act solely on the basis of their individual self-interest. Cohen has carefully dissected the multiple ambiguities in this position, and shown why a consistent reading of Rawls’s underlying moral premises requires that individuals as well as public institutions act from a sense of justice (Cohen 1992, 1997; Murphy 1999). I won’t repeat his argument here, or the debate it has generated (Estlund 1998; Smith 1998; Williams 1998; Pogge 2000). The debate is complicated by the fact that certain features of Rawls’s theory of justice, particularly his ‘diVerence principle’, have informational and publicity conditions that can only be satisWed by institutions. But in a more general sense, the idea that Rawls’s and Dworkin’s arguments have implications for how individuals conceptualize and formulate their rightful claims is surely undeniable. Several of their central premises concern how individuals should understand the moral basis of their claims to resources.

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DO U BT S A B O U T T H E L E F T- L I B E R A L M A R R I AGE This, then, is the broad outline of the new left-liberal position, in which the original social democratic commitment to reduce social inequality has been integrated into a broader liberal egalitarian commitment to a choice-sensitive, circumstance-insensitive distribution. However, this marriage between the left and liberalism has recently come under strong attack. Critics argue that it is a betrayal, rather than a broadening, of the left’s true mission. According to these critics, the liberal conception of equality, with its preoccupation with the choices/circumstances distinction, is actually antithetical to certain basic left values, such as fraternity, respect, or democratic citizenship. Interestingly, these critics often suggest that the problem lies precisely in the social ethos that liberal egalitarianism engenders. I have just stated that the ethos of liberal egalitarian is one that teaches each of us to look critically at the claims for resources we make, and to ask ourselves whether we are trying to gain economic privileges from our undeserved natural talents, and/or to externalize the costs of our choices on others. Stated this way—as a guide for reXecting on the moral defensibility of our own claims to resources—I think the ethos of liberal egalitarianism is an attractive one. But of course it can also be turned outward, and invoked as a way of critically evaluating the claims to resources by our co-citizens—and viewed this way, the ethos of liberal egalitarianism is less attractive. As WolV notes, the ethos of liberal egalitarianism, once it is turned outward, encourages people to view disadvantaged citizens with distrust, as potential cheaters. In order to overcome this distrust, the disadvantaged must engage in what WolV calls ‘shameful revelation’, that is, they have to prove they do indeed suVer from some involuntary disadvantage, whether in their natural talents or childhood upbringing. The inevitable result, he argues, is to erode, rather than to strengthen, the bonds of solidarity and mutual concern between citizens. WolV (1998) suggests that this creates a tension between fairness and respect. He argues that while liberal egalitarianism may indeed be the best theory of justice, from a purely philosophical point of view, it promotes the wrong ethos of equality. Philosophically, it may be true that the fairest scheme of distribution would distinguish voluntary from involuntary inequalities, but any attempt to implement this distinction in practice creates distrust, shame, and stigmatization. It may identify who has the fairest claims, but only through a process that undermines the civility and solidarity that leads people to care about justice in the Wrst place.

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Anderson has raised a similar objection to liberal egalitarians (or what she calls ‘luck egalitarians’). She argues that liberal egalitarianism’s emphasis on distinguishing voluntary from involuntary inequality leads to a disrespectful pity towards the ‘deserving’ poor, and paternalistic hectoring of the ‘undeserving’ poor (Anderson 1999). These are powerful objections, further elaborated in a recent article by ScheZer (2003). However, they all depend on the assumption that the ethos of liberal egalitarianism cannot be solely self-directed, but will inevitably turn outward, and lead to disrespectful scrutiny of our co-citizens. This is quite explicit in ScheZer’s summary: For this reason, luck egalitarianism encourages her to look inward in deciding whether she has a legitimate claim on fellow citizens, and, as Anderson and WolV have emphasized, it encourages those fellow citizens to scrutinize the deepest aspects of her self and to arrive at heavily moralized judgements about the degree of responsibility she bears for her own misfortune. (ibid. 21; italics added)

The question is whether the latter part of the sentence follows from the former. If liberal egalitarianism encourages individuals to scrutinize their own claims to resources, does it follow that it must also encourage individuals to demand shameful revelation of others, or to engage in paternalistic hectoring of them? Is it possible for us to engage in serious moral scrutiny of our own claims, while trusting that other citizens will do the same for themselves without the need for our oversight or veriWcation? Can we develop a model of good citizenship in which people make a conscientious attempt to apply the choices/circumstances distinction to their own claims, while not prying into the (ir)responsibility of others? It seems to me that such a model is a plausible and indeed logical way of interpreting our underlying norms of equal respect. Part of what it means to respect others involves not exploiting our undeserved natural talents for Wnancial advantage, and not externalizing the costs of our choices on others. Refusing to apply these considerations to our own claims would be disrespectful to others. Another part of what it means to respect others is not to insist that they engage in shameful or demeaning activities as a condition of claiming their fair share of resources. Norms of equal respect underlie both the inward application of liberal egalitarian principles and the restraint in their other-directed application. If we interpret the liberal egalitarian model in this way, I think that some of the concerns raised by WolV, Anderson, and ScheZer can be assuaged. Of course, our trust may be abused by some of our less scrupulous co-citizens. But if we are successful in inculcating an ethos of good citizenship that emphasizes the importance of voluntarily accepting personal responsibility

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for our own choices, there may be few such abuses. This may seem naive or inconsistent, and I will return to this question later. But let me Wrst consider what is the alternative for the left.

WHAT I S THE ALTERNATIVE? Some commentators insist that social democrats should embrace a more ‘social’ conception of justice, unlike the ‘individualistic’ conception found in Rawls or Dworkin. Miller, for example, distinguishes ‘distributive equality’, which he describes as individualistic and rooted in the liberal tradition, from ‘social equality’, which is more holistic or communitarian and rooted in the socialist tradition. The former is concerned with the claims of individuals to their equal share of resources; the latter with constructing the right sort of egalitarian social relationships. The former deals with ensuring greater equality in people’s private share of resources, the latter with ensuring people’s equal standing in public life (Miller 1993, 1997). Similar distinctions have been made by other recent left-wing critics of liberal egalitarianism. In place of the liberal focus on individual distributive equality, Anderson suggests we focus on social relations of ‘democratic equality’; ScheZer suggests we focus on a ‘social and political ideal of equality’ (2003: 22); and Hinton suggests we focus on ‘equality of status’ (2001). All these authors seek to shift our focus from fairness in the distribution of individual holdings to the quality and texture of social relations. Michael Walzer captures this ‘social’ aspect of equality with his image of a ‘society of misters’. In a social democracy, people meet and greet each other on equal terms. We address each other as ‘Mr’ or ‘Ms’, rather than addressing upper-class people as ‘sir’ or ‘madam’, and lower-class people as ‘Jones’. This has also historically been phrased as the ideal of a ‘classless’ society, not in the Marxist sense of abolishing wage labour, but rather in the sense that class position should not determine one’s social relationships. As Miller puts it, a society of social equals is ‘a community in which people’s dealings with and emotional attachment to others are not inhibited by the barriers of class’ (1993: 302). This idea of a more social conception of equality is often connected to the idea that there are diVerent ‘spheres’ of justice. According to Walzer, for example, one sphere of justice concerns money and commodities, exchanged in the market. Goods and services available in the market should be distributed according to people’s ability to pay, and Walzer thinks it is both impossible and unnecessary to try to eliminate involuntary inequalities in

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people’s ability to pay for such goods. What matters is that these inevitable market-based inequalities do not cross the boundary and contaminate other spheres of justice, such as democratic citizenship, education, health care, or public honour, whose goods should be distributed without reference to one’s ability to pay. Involuntary inequalities in people’s ability to earn money and to buy private commodities, like boats or fancy stereos, are permissible, but these market inequalities must not enable people to buy political inXuence, basic public services, or public recognition, and thereby undermine equality in the public sphere (Walzer 1983). These conceptions of social equality have obvious resonances with the views of Tawney and Crosland discussed in the Wrst section of this chapter, with their strong emphasis on the evils of class stratiWcation and their comparative indiVerence to the ‘details of the countinghouse’. In fact, several recent authors explicitly describe themselves as reviving this earlier social democratic tradition, which they believe has been wrongly displaced by contemporary liberal egalitarian dogma. This idea of developing a more social conception of equality, focused on the texture of people’s social relationships rather than the ‘details of the counting house’, has obvious attractions.9 Defenders of social equality rightly stress the importance of people’s social status or public standing. It is surely correct that the harm of poverty is not just the shortage of particular goods or services but also the shame, pity, condescension, or invisibility that poisons relations between the poor and other members of society. For many readers, these recent re-articulations of the social democratic ideal will come as a healthy antidote to the seemingly sterile and arcane debates within the liberal egalitarian camp. Since Rawls’s 1971 book, liberal egalitarians have engaged in increasingly reWned (and rareWed) discussions of how best to conceptualize the distinction between choices and circumstances, including debates about the proper classiWcation of diVerent types of handicaps, medical needs, talents, social positions, risks and gambles, gifts, tastes, obsessions and addictions, mental dispositions and temperaments, religious 9 Its attractiveness is reXected in the fact that we Wnd similar attempts to develop a more social model of equality, not only in the social democratic tradition but also within utilitarianism (Broome 1991: ch. 9; Temkin 1993: chs. 9 and 10), communitarianism (Sandel 1996), and feminism (Young 1990; Tronto 1993). Even some liberals and Marxists have argued for a more ‘social’ conception of justice. For example, Kaus argues that liberals should abandon what he calls ‘money liberalism’ (or distributive equality) for what he calls ‘civic liberalism’ (or social equality) (1992). Similarly, Reiman believes that Marxism should ‘take as its ideal not some distribution of things but a certain social relation among persons’ (1989). ScheZer (2003) feels that Rawls himself is best seen as advancing such a social conception of equality. On all of these views, we should abandon the attempt to distinguish voluntary from involuntary inequalities, and instead focus on the question of which material inequalities undermine social equality.

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commitments, and so on.10 These debates may have their intellectual interest for fans of a particular sort of analytic philosophy. But for many people on the left they are a distraction from the real task—which is to contest the more basic injustices of oppression, exploitation, and ‘heritable hierarchies of social status’ (ScheZer 2003: 22)—and they regret the fact that so many erstwhile socialists have been sucked into this liberal vortex. Viewed in this light, the social democratic critique of liberal egalitarianism’s preoccupation with individual distributive equality can be seen as a timely reminder of the left’s true moral priorities. On the other hand, one could argue that defenders of social equality are remarkably blase´ about the importance of material resources in people’s personal or private lives. There is a tendency to suggest that the ‘details of the countinghouse’ are of no real consequence for people’s lives, so long as they do not erode people’s public standing in the ‘society of misters’. But is it really unimportant that some people live in spacious houses while others are in cramped apartments; or that some people can aVord month-long vacations overseas while others cannot aVord to eat out at a local restaurant; or that some people have rewarding and fulWlling ‘careers’ while others have mindnumbing ‘jobs’, if they have a job at all? Why should we accept such large disparities in people’s life chances and standards of living when they are unchosen and undeserved? Why should people’s ability to pursue their conception of the good life depend on such morally arbitrary factors? In this sense, the social conception of equality is arguably a stunted idea of justice, compared with the broader attack on involuntary disadvantage implicit in the liberal egalitarian model. But why should these be viewed as competing, rather than complementary, views of justice? One might think that the pernicious social consequences of material inequalities simply give us a further strong reason for wanting to achieve distributive justice. After all, one way to ensure that social relationships are egalitarian is to ensure that individuals have roughly equal shares of resources, and hence enter society on a roughly equal footing. If so, then liberal egalitarianism will help achieve both a just distribution to individuals and egalitarian social relations between individuals. Why then do some people think that social equality is an alternative, rather than a supplement, to liberal equality? Why think that the only or best way to achieve social equality is to abandon individual distributive equality? There are at least three diVerent views, I think, about the relationship between social equality and liberal egalitarian distributive justice. 10 In this sense, as Ian Shapiro once noted, much contemporary writing on justice is arguing within three decimal points of Rawls.

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First, some social democrats, like Miller and Walzer, simply do not accept the liberal egalitarian argument that undeserved inequalities are unfair. In their view, it is not unjust that the gifted have substantially more resources than the less talented. The fact that natural talents are morally arbitrary is not, for Miller (1999: ch. 7) and Walzer (1983: ch. 4), a reason to say that people do not deserve their market income. So we cannot justify redistributing resources on the grounds that the talented aZuent have more than their fair share, or that the less well oV have less than their fair share. In Miller’s view, inequalities in market income may well be fair if they are broadly proportionate to people’s contributions. However, these inequalities, while fair in and of themselves, may undermine the desired sense of ‘fellowship’ underlying a society of equals if they become excessive, and so must be limited and contained. A classless society is not necessarily more just, in the sense of distributing resources more fairly, but is attractive for reasons other than distributive justice, such as community. Second, there are other social democrats who agree with liberal egalitarians that undeserved inequalities are unfair, but do not believe that the state is capable of identifying or remedying the growing inequalities in market income. Trying to Wght these inequalities directly is a futile exercise. What the state can do, however, is to try to minimize the social consequences of these unjust inequalities. It can try to ensure that these unjust inequalities only aVect people’s private lives—that is, people’s private consumption or leisure—without undermining social equality (Kaus 1992). According to this view, social democratic equality is a kind of fallback position. If we cannot achieve distributive justice, we should at least protect social equality.11 Third, most defenders of social equality are simply agnostic on the fairness of individualized inequalities. Theorists like Anderson, ScheZer, and Hinton reject the liberal egalitarian principle that distribution should be endowmentinsensitive. But they oVer no guidelines on how variations in natural talents should aVect distribution. Unlike Miller and Walzer, they do not assert that people who produce more in virtue of their talents are thereby entitled to greater rewards. They are simply silent on the moral legitimacy of rewards to talents. Similarly, they reject the liberal egalitarian principle that distributions should be ambition-sensitive, and that people should pay for the costs of their choices. But they give no suggestions on how to allocate responsibility for the costs of people’s choices. Unlike some welfare egalitarians and utilitarians, they do not assert that expensive tastes should be accorded the same weight in public decision-making as all other preferences. They are simply 11 This raises questions about whether or how the limited capacity of the state should inXuence our theorizing about justice (Rothstein 1992).

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silent on the criteria for morally assigning responsibility for the costs of people’s choices. In short, they provide no criteria for evaluating individualized inequalities—that is, no criteria for deciding which inequalities rooted in individuals’ varying talents and preferences should be accepted and which reduced— except where these inequalities threaten to erode equal public standing of citizens. This equal social standing is typically interpreted to require on the one hand, a minimum social safety net to meet ‘basic needs’ and on the other, an upper limit on the size of inequalities to prevent the emergence of class stratiWcation (e.g. ScheZer 2003: 23). However, they oVer no instructions for assessing the fairness of inequalities in the distribution of resources that fall in between this ceiling and Xoor; for judging when or whether it is appropriate for the talented to extract higher income as a condition of using their natural gifts; and for deciding when or whether it is appropriate for those with expensive tastes to seek public subsidies for their lifestyle. So long as people’s shares of resources do not fall below the minimum Xoor or rise above the ceiling, it seems that struggles over distribution and redistribution are a moral free-for-all. A conscientious citizen who wants to know what criteria he or she should apply when evaluating his or her own claims on resources would be at a loss. It is clear that, for Anderson and the others in this camp, citizens should not assess the fairness of their own claims by asking whether they are endowment-insensitive or ambition-sensitive. They should not think they have a rightful claim to compensation for involuntary disadvantage, or that they have a rightful obligation to pay for the costs of their choices. But it is not clear what alternative criteria, if any, citizens should use in judging the justice of their claims. In a sense, this third group is being quite faithful to the earlier social democratic tradition, which manifested the same agnosticism. They share Tawney’s hope that where social hierarchies have been dismantled, inequalities due to individual talents or preferences will simply be ‘forgotten or ignored’. They also share his strategy of defending the welfare state solely by focusing on the evils of social hierarchy, without having to grapple with the complexities of the moral evaluation of individualized inequalities. The problem, of course, is that this strategy did not work for the earlier social democrats, and it is diYcult to see why it would work today. As I discussed earlier, any real-world welfare state will inevitably impinge on issues of individualized inequality, both in terms of who pays and who beneWts. Citizens will want to know the principles underlying these policy choices, and will want to see that their institutions articulate defensible moral norms of fairness and responsibility. In the absence of such clearly articulated principles, citizens may come to see the tax/transfer patterns of the welfare state as,

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at best, simply a pay-oV to whatever special interests happen to be in power, and at worst, as a morally perverse way of penalizing hard-working contributors to subsidize the indolent or imprudent. This is the problem that the earlier social democratic project ran into, and this is the reason why the left turned to liberal egalitarianism in the Wrst place. Recent authors oVer the social conception of equality as an alternative to the perceived deWciencies of the liberal egalitarian model that now dominates the left, but they ignore the fact that liberal egalitarianism became dominant because it helped rescue the left from the deWciencies of the previously dominant social conception of equality. Defences of the welfare state that are agnostic or indiVerent to issues of individualized inequality have proven unsustainable. So I am not persuaded that the social conception of equality oVers a viable alternative to the liberal egalitarian project, for both philosophical and strategic reasons. From a philosophical point of view, the social conception of equality is too narrow in its focus on public status, ignoring the importance of material inequalities for people’s capacities to pursue their personal projects and conceptions of the good. Of course, given today’s inhospitable climate, we might well accept such a limited goal as the best we can realistically achieve. But even this narrow goal may be strategically unattainable if it is divorced from a broader account of individual fairness and responsibility. Even if our aim is simply to protect social equality, we may still need to integrate considerations of individual fairness and responsibility in order to sustain public support for the sorts of taxes and transfers that any welfare state requires.

C O NC LU S I O N One of the most striking intellectual developments over the past thirty years is the extent to which the left has made its peace with liberalism. In my view, this has generally been a positive development, for both sides. Leftists have made important contributions to the development of liberal theories of justice, of which Cohen’s own writings on the ‘currency’ and ‘site’ of egalitarian justice are a prime example. And liberalism has provided important intellectual support to the social democratic welfare state at a time when the latter was under a powerful attack.12 12 The rapprochement with liberalism has also had the beneWt of delegitimizing leftist tendencies towards vanguardist politics, in which party cadres and intellectuals view themselves as the vanguard of ‘the people’, and seize power in their name, regardless of their actual level of popular support. See Lilla (2003) for a discussion on the European left’s tendency to indulge in such illiberal and undemocratic fantasies.

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However, not everyone is happy with this marriage of the left and liberalism. There are lingering worries that adopting liberal concepts has had a distorting eVect on the left. In particular, the liberal egalitarian conception of distributive justice is said to distract us away from urgent issues of social hierarchy and oppression into metaphysically obscure and politically marginal issues about the distinction between choices and circumstances. Moreover, this liberal discourse is said to generate an ethos of disrespect and distrust, by requiring shameful revelation, pity, and paternalistic moralizing. In this chapter, I have oVered a qualiWed defence of the left–liberal marriage. I have suggested that liberal egalitarianism, far from distracting us from the social democratic project, actually helped rescue it by remedying deWciencies in the traditional social democratic conception of equality. The vulnerability of the welfare state to the New Right’s critique showed clearly that any viable project of social equality must be integrated into a larger framework of justice that includes principles for assessing individualized inequalities. This larger liberal framework does pose the risk of creating an ethos of disrespect and distrust. But I have suggested that we can reduce this risk by viewing liberal egalitarian principles as primarily self-directed rather than other-directed. According to this view, morally conscientious citizens apply these principles to the evaluation of their own claims on resources—and institutions nurture a public ethos in which citizens accept a civic duty to engage in this sort of self-reXection and self-moderation—but we refrain from trying to intrusively scrutinize or verify whether other people’s claims are consistent with these norms. Needless to say, this may be sociologically naive. Perhaps the more institutions encourage citizens to critically reXect on the moral legitimacy of their own claims, the more this will incite citizens to engage in invasive scrutiny and heavily moralized judgements of others’ claims, thereby eroding the feelings of solidarity and trust that sustained the practice of justice in the Wrst place. I confess that I am unsure how to judge the plausibility of these diVerent predictions about how an ethos of liberal egalitarianism would function. However, if the liberal egalitarian view I have described is naive, I think the social democratic alternative is even more unrealistic. Critics of liberal egalitarianism suggest that if we reverted to a more traditional social democratic conception of equality, in which issues of individual responsibility are less central, citizens would be less likely to engage in invasive and moralized judgements of other people’s claims. I think this is almost certainly false. I suspect that citizens are more likely to engage in such judgements if they think that public institutions are not encouraging people to make these judgements

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on their own. If public institutions do not instruct individuals critically to reXect on the legitimacy of their own claims, fellow citizens may feel compelled to make these judgements for them. Indeed, it seems to me that this is precisely what occurred in response to the perceived Xaws of the original social democratic welfare state. This suggests that left-wing critics of liberal egalitarianism have misread recent history. There has undoubtedly been a pronounced tendency in recent years for citizens to make invasive and moralized judgements about the deservingness of other people. Critics argue that this distressing phenomenon is the result of the rise of liberal egalitarianism, and its preoccupation with distinguishing voluntary from involuntary disadvantages, which they view as encouraging a distrustful and disrespectful attitude to our co-citizens. They suggest that reverting to a more traditional social democratic conception that focuses solely on social inequalities, rather than responsibility for individualized inequalities, would reverse this unattractive trend in our public culture. I would argue, however, that it was precisely the perceived moral Xabbiness of the traditional social democratic welfare state, with its indiVerence to individual responsibility, that helped generate the trend towards a public culture of distrust and disrespect. Citizens took it upon themselves to aggressively assert norms of individual responsibility because social democratic institutions were seen as indiVerent to these norms.13 If this analysis is correct, reverting to a traditional social democratic conception of equality that is agnostic or indiVerent to questions of individual responsibility is likely to exacerbate rather than ameliorate the public culture of disrespect and distrust. Put another way, reverting to the traditional social democratic conception of equality cannot be the solution to a public culture of distrust, since that public culture arose (in part) as a response to the perceived Xaws of that very conception. In this sense, I think that the left has no choice but to take on board liberal concerns about individual responsibility. The diYcult question is how leftliberals can promote norms of individual responsibility in a way that is eVective but non-intrusive and non-demeaning. I have no clear answer to that question, but I suspect that the long-term prospects of both liberal egalitarianism and social democracy depend on Wnding an answer. I also believe that, as Cohen has argued, the answer requires greater attention to questions of public culture and social ethos than either liberals or socialists have typically paid. 13 This sentiment was obviously fanned by right-wing politicians and journalists, often in reckless and dishonest ways, but the strategy worked because it resonated with pre-existing popular worries about the welfare state.

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REFERENCES Anderson, E. (1999). ‘What is the Point of Equality?’, Ethics, 99(2). Arneson, R. (1993). ‘Market Socialism and Egalitarian Ethics’, in P. Bardhan and J. Roemer (eds.), Market Socialism: The Current Debate. Oxford: Oxford University Press. —— (2000a). ‘Luck Egalitarianism and Prioritarianism’, Ethics, 110(2). —— (2000b). ‘Egalitarian Justice Versus the Right to Privacy’, Social Philosophy & Policy, 17(2). Bourdieu, P. (1987). Distinction: A Social Critique of the Judgement of Taste. Cambridge, MA: Harvard University Press. Bowles, S. and Gintis, H. (1998). ‘Is Equality Passe´? Home Reciprocans and the Future of Egalitarian Politics’, Boston Review, 23(6). —— (1999). Recasting Egalitarianism: New Rules for Markets, States, and Communities. London: Verso. Broome, J. (1991). Weighing Goods. Oxford: Blackwell. Cohen, G. A. (1989). ‘On the Currency of Egalitarian Justice’, Ethics, 99(4). —— (1990). ‘Self-Ownership, Communism and Equality’, Proceedings of the Aristotelian Society, 64(Suppl.). —— (1992). ‘Incentives, Inequality and Community’, in G. B. Peterson (ed.), The Tanner Lectures on Human Values, vol. 13. Salt Lake City, UT: University of Utah Press. —— (1997). ‘Where the Action Is: On the Site of Distributive Justice’, Philosophy and Public AVairs, 26(1). —— (2000). If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Harvard University Press. Crosland, C. A. R. (1964). The Future of Socialism. London: Cape. Dworkin, R. (1981). ‘What is Equality? Part I: Equality of Welfare; Part II: Equality of Resources’, Philosophy and Public AVairs, 10 3(4). —— (1985). A Matter of Principle. London: Harvard University Press. —— (2000). Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Estlund, D. (1998). ‘Liberalism, Equality and Fraternity in Cohen’s Critique of Rawls’, Journal of Political Philosophy, 6(1). Gilens, M. (1999). Why Americans Hate Welfare. Chicago: University of Chicago Press. Grant, G. (1974). English-Speaking Justice. Sackville, NB: Mount Allison University Press. Hinton, T. (2001). ‘Must Egalitarians Choose Between Fairness and Respect?’, Philosophy and Public AVairs, 30. Kaus, M. (1992). The End of Equality. New York: Basic Books. Kymlicka, W. (2002). Contemporary Political Philosophy, 2nd edn. Oxford: Oxford University Press.

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Lilla, M. (2003). The Reckless Mind: Intellectuals in Politics. New York: New York Review of Books. Macleod, C. (1998). Liberalism, Justice and Markets: A Critique of Liberal Equality. Oxford: Oxford University Press. Miller, D. (1992). ‘Distributive Justice: What the People Think’, Ethics, 102(3). —— (1993). ‘Equality and Market Socialism’, in P. Bardhan and J. Roemer (eds.), Market Socialism: The Current Debate. New York: Oxford University Press. —— (1997). ‘What Kind of Equality Should the Left Pursue’, in J. Franklin (ed.), Equality. London: Institute for Public Policy Research. —— (1999). Principles of Social Justice. Cambridge, MA: Harvard University Press. Murphy, L. (1999). ‘Institutions and the Demands of Justice’, Philosophy and Public AVairs, 27(4). Pogge, T. (2000). ‘On the Site of Distributive Justice: ReXections on Cohen and Murphy’, Philosophy and Public AVairs, 29(2). Rakowski, E. (1992). Equal Justice. Oxford: Oxford University Press. Reiman, J. (1989). ‘An Alternative to ‘‘Distributive’’ Marxism’, Canadian Journal of Philosophy, 15(Suppl.). Roemer, J. (1993). ‘A Pragmatic Theory of Responsibility for the Egalitarian Planner’, Philosophy and Public AVairs, 22. —— (1994). A Future for Socialism. London: Verso. —— (1995). ‘Equality and Responsibility’, Boston Review, 20(2). —— (1999). ‘Egalitarian Strategies’, Dissent. Rothstein, B. (1992). ‘Social Justice and State Capacity’, Politics and Society, 20(1). Sandel, M. (1996). Democracy’s Discontent. Cambridge, MA: Harvard University Press. ScheZer, S. (2003). ‘What is Egalitarianism?’, Philosophy and Public AVairs, 31(1). Smilansky, S. (2003). ‘Choice-egalitarianism and the paradox of the baseline’, Analysis, 63(2). Smith, P. (1998). ‘Incentives and Justice: Cohen’s Egalitarian Critique of Rawls’, Social Theory and Practice, 24(2). Swift, A. et al. (1995). ‘Distributive Justice: Does it Matter What the People Think’, in J. R. Kluegel, D. S. Mason, and B. Wegener (eds.), Social Justice and Political Change: Public Opinion in Capitalist and Post-Communist States. New York: Aldine de Gruyter. Sypnowich, C. (2003). ‘Equality: From Marxism to Liberalism (and Back Again)’, Political Studies Review, 1. Tawney, R. H. (1964). Equality, 4th edn. London: Allen and Unwin. Temkin, L. (1993). Inequality. Oxford: Oxford University Press. Tronto, J. (1993). Moral Boundaries. New York: Routledge. Van Parijs, P. (1991). ‘Why Surfers Should Be Fed: The Liberal Case for an Unconditional Basic Income’, Philosophy and Public AVairs, 20(2). —— (1995). Real Freedom for All. Oxford: Oxford University Press. —— (2000). ‘A Basic Income for All’, Boston Review, 25(5).

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Walzer, M. (1983). Spheres of Justice: A Defence of Pluralism and Equality. Oxford: Blackwell. Williams, A. (1998). ‘Incentives, Inequality, and Publicity’, Philosophy and Public AVairs, 27(3). WolV, J. (1998). ‘Fairness, Respect, and the Egalitarian Ethos’, Philosophy and Public AVairs, 27(2). Young, I. M. (1990). Justice and the Politics of DiVerence. Princeton, NJ: Princeton University Press.

2 Throwing a Veil Over Equality: Equality and Hypocrisy in the Revolutionary Era Jon Elster

We hold these truths to be self-evident: That all men are created equal. (Declaration of Independence) Men are born and remain equal and free in rights. (Declaration of the Rights of Man and of the Citizen)

INTRODUCTION In If You’re an Egalitarian, How Come You’re so Rich?, G. A. Cohen cites George Eliot’s characterization of Bulstrode as ‘a man whose desires had been stronger than his theoretical beliefs, and who had gradually explained the gratiWcation of his desires into satisfactory agreement with those beliefs. If this be hypocrisy, it is a process which shows itself occasionally in all of us, to whatever confession we belong’. In his own work, Cohen has considered the tension between the ‘theoretical belief ’ in equality and the ‘desire’ for material well-being. In this chapter, I consider the tension between the ideal of equality that is expressed in the two declarations and the desires that led both the French and the American revolutionaries to deny political equality to various categories of persons. The tension is in one way more complicated than the one Cohen writes about, because in several cases the ideals conXict not only with group interest but also with prejudice. The reason women did not get the right to vote, for instance, was not that female suVrage was perceived as harmful to any speciWc I am grateful for comments by G. A. Cohen and Michel Troper on an earlier draft of this chapter.

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interest, but rather that, like minors, women were thought to be deWcient in rationality. Denying them the right to vote could, therefore, appear to be justiWed by the general interest. When the Declaration of Rights (Art. I) asserts that ‘[s]ocial distinctions can be based only on common utility’ (italics mine), we must read it as saying that such distinctions can be based on public utility. Prejudice does not, however, induce bad faith. The revolutionaries had no qualms about expressing their misogynous views in public. But when the denial of equality to one group by another stems from the particular interest of the latter, defence of the ideal of equality requires conscious hypocrisy or perhaps, as suggested by George Eliot, unconscious self-deception.1

T H E U N I T E D S TAT E S In the USA in 1787, the most obvious violation of the ‘self-evident’ equality among ‘men’ was the existence of slavery. Although political equality was far from the only right denied by slavery, it was certainly one of them. In the constitution that was adopted in Philadelphia in 1787, there are Wve clauses that obliquely but unambiguously refer to slavery.2 In addition, there are ten other clauses indirectly or de facto supporting slavery (Finkelman 1987: 191– 2). The striking fact is that the words ‘slave’ or ‘slavery’ are never employed. Instead, we Wnd the euphemisms ‘other persons’ or ‘a person held to Service or Labour’. In the Federalist Papers, there are less than half a dozen occurrences of the explicit terms. By contrast, we Wnd more than a hundred references to the institution in Madison’s notes from the Federal Convention. The explanation is, of course, that the Convention was held behind closed doors, whereas the constitution and the Federalist Papers were oVered to the public. One of the framers, Luther Martin, said afterwards that his codelegates at the Convention ‘anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans, although they were willing to admit into their system those things which the expressions signiWed’ (Farrand 1966: vol. 3, 210). The delegates from the northern states, 1 Henceforth I shall ignore this fragile distinction, which I discuss in Elster (1999: ch. 5). 2 Art. I, Sec. 2, Par. 3: Slaves count for 3/5 for representation in Congress and for taxation of the states. Art. I, Sec. 9, Par. 1: The slave trade cannot be banned before 1808. Art. I, Sec. 9, Par. 4: The 3/5 rule for head taxes. Art. IV, Sec. 2: Fugitive slave clause. Art. V: No amendment of slave importation or head tax clauses before 1808.

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in particular, would have been embarrassed to be seen condoning slavery in so many words. A striking example of hypocrisy at work was the debate at the Convention over the linked issues of representation in the lower house of Congress and taxation. Many delegates from non-slave-holding states objected to the idea of counting slaves for the purpose of determining the number of representatives a state should have in Congress. Paterson (New Jersey) oVered a conceptual objection: ‘What is the true Principle of Representation? It is an expedient by which an assembly of certain individls. chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? they would not. Why then shd. they be represented?’ (ibid., vol. 1, 561). Gouverneur Morris (Pennsylvania) stated a practical objection: ‘Another objection with him agst admitting the blacks into the census, was that the people of Pena. would revolt at the idea of being put on a footing with slaves’ (ibid., vol. 1, 583).3 James Wilson (Pennsylvania) then suggested that one could do in two steps, without causing oVence, what would be oVensive if done in one step. He ‘observed that less umbrage would perhaps be taken agst. an admission of slaves into the Rule of representation, if it should be so expressed to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation: and as representation would be by taxation, the end would be equally attained’ (ibid. 595). Although this objection to a direct reference to slaves stemmed from anti-slave sentiments, not from anti-slavery feelings, it betrays a similar reluctance to call things by their real name. The idea had originated with Gouverneur Morris a few days earlier, when he proposed the scheme in Panel A of the Wgure (ibid. 591–2). A

Whites + 3/5 of slaves

Representation B

Taxation

Whites + 3/5 of slaves

Taxation

Representaion

3 Lest this somewhat ambiguous remark be misunderstood, I should add that Morris was the strongest opponent of slavery at the Convention.

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His ingenious argument was that the link between the number of slaves and taxation would create a disincentive to importation of slaves that would counterbalance the incentive to importation created by the link between the number of slaves and representation. Although the Convention Wrst adopted Wilson’s version of the scheme, shown in Panel B of the Wgure, the Wnal document reverted to Gouverneur Morris’s proposal. The diVerence between the schemes is purely cosmetic, but appearances can matter. As Wilson said, the absence of a direct link between the number of slaves and representation would cause less umbrage. For an analogy, consider workers in ailing industries who feel oVended by the idea of a wage subsidy but accept energy subsidies to the Wrm that employs them, even when the sole purpose of the latter is to preserve their jobs (Schlicht 1984). Gouverneur Morris was also a central actor in organizing another important deal involving slavery. Hypocritically, he Wrst denied the legitimacy of striking a bargain and then proceeded to organize one. At one stage (5 July), he said: He wished gentlemen to extend their views beyond the present moment of time; beyond the narrow limits of place from which they derive their political origin. If he were to believe some things which he had heard, he should suppose that we were assembled to truck and bargain for our particular States. He cannot descend to think that any gentlemen are really actuated by these views (Farrand 1966: vol. 1, 529).

Seven weeks later, when the Convention was debating the importation of slaves, he ‘wished the whole subject to be committed [sent to a committee] including the clauses relating to taxes on exports & to a navigation act. These things may form a bargain among the Northern & Southern States’ (ibid., vol. 2, 374). Ideally, the Southern States wanted to write both guarantees for the slave trade and a supermajority for Navigation Acts into the constitution, thus making it less likely that such Acts, which harmed their economic interests, would be passed. The northern states had the opposite interests: they feared that importation of slaves would give the southern states a greater representation in Congress, and they wanted to be able to reserve foreign trade to ships that they built and operated. The result was a compromise: the slave trade was allowed to continue until 1808 but there would be no supermajority required to pass Navigation Acts. The Americans of the revolutionary period also debated questions of suVrage. The elite, as most elites in the era before universal suVrage, feared that if the poor got to vote they would soak the rich. At the Convention, Dickinson saw ‘the restriction [of the right to vote to freeholders] as a necessary defence agst. the dangerous inXuence of those multitudes without property & without principle with which our Country like all others, will in

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time abound’ (ibid. 202).4 Others took an indirect route to the same conclusion, arguing that only the rich would beneWt from giving the poor the right to vote. Gouverneur Morris, for instance, argued: ‘Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not conWne our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty? Will they be the impregnable barrier agst. aristocracy?’ (ibid.)5

In the same breath, Gouverneur Morris also pointed to the pressure that the wealthy could exercise on the votes of their dependants. No carrot would be necessary to make them vote the right way; the stick would do it (ibid. 203). In either version, the argument was that extending suVrage to the propertyless would de facto amount to greater representation of property. It was, therefore, in the interest of the poor themselves that they should not get the vote. The last argument is also an old one. In the Roman Republic, some voting restrictions may have been motivated by ‘the desire to limit the inXuence of patrons over their former slaves’ (Lintott 1999: 204). The Romans also used the secret ballot for the same end (ibid. 205). If the American framers had been seriously concerned with vote-buying or with the inXuence the wealthy could exercise on their clients, they too could have adopted the secret ballot.6 The debates at the Convention are full of references to the institutional arrangements of antiquity, so I assume that ignorance of the secret ballot was not the reason nobody proposed it. I agree, therefore, with Keyssar when he writes that the American elite ‘were performing an impressive feast of ideological alchemy: providing an ostensibly egalitarian defense of an overtly anti-egalitarian policy’ (2000: 11). The most eloquent along these lines is perhaps Madison’s argument at the Convention to the eVect that an upper house serves Wrst to protect the people against their rulers: secondly to protect the people agst. the transient impressions into which they themselves might be led. A people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of Govt, most likely to secure their happiness, would Wrst be aware, that those chargd. with the public happiness, might betray their trust. An obvious precaution agst. this danger wd. be to divide the trust between diVerent bodies of men, who might watch & check each other. . . . It would next occur to such a people, that they 4 The equally common view that the uneducated judgement of the poor would make for bad choices across the board was partly based on prejudice, not on interest pure and simple. 5 Farrand (ibid. 203–4) combined both arguments. 6 See GueniVey (1993: 286–7) for comments on the secret ballot in Rome as a remedy in some respects as bad as the disease.

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themselves were liable to temporary errors, thro’ want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public aVairs, might err from the same cause. . . . Another reXection equally becoming a people on such an occasion, wd. be that they themselves, as well as a numerous body of Representatives, were liable to err also, from Wckleness and passion. . . . It ought Wnally to occur to a people deliberating on a Govt. for themselves, that as diVerent interests necessarily result from the liberty meant to be secured, the major interests might under sudden impulses be tempted to commit injustice on the minority. (Farrand 1966: vol. 1, 421)

Gouverneur Morris argued that by denying full political participation to the propertyless one was in fact protecting them from the propertied. Madison took the further step of claiming that by denying them full political rights one was protecting them from themselves. But what he presents as an act of (hypothetical) self-binding by the people is perhaps more plausibly seen as an act by the elite to bind the people.7 In the words of Anderson: ‘[T]he Founding Fathers [ . . . ] in defending property against anticipated majorities of the propertyless, entailed upon their posterity a system insuYciently Xexible to adapt’ (1993: 15). One and the same arrangement could be seen, then, as protecting A against B (Morris), A against A (Madison), and B against A (Anderson). No doubt Madison would have said that because it protected A and B against A, the arrangement would be in the general interest of society rather than in the service of class interests. The argument is still well and alive. In a Nobel prize–winning article, Kydland and Prescott write: ‘A majority group, say, the workers, who control the policy might rationally choose to have a constitution which limits their power, say, to expropriate the capitalist class’ (1977: 486). In general, of course, arguments of this kind can be true. A disinterested argument does not have to be counterinterested. Many scientists argue that having a large science budget and few policy constraints on scientists is in the interest of scientists and of everyone else, and I happen to think they are right. But, as Marx knew, when people claim that their special interests coincide with the general interest of society, they are often subject to ‘ideological alchemy’. At the Convention the detail that gives the game away was that nobody suggested the secret ballot as the remedy to excessive inXuence.8 7 In Elster (2000: ch. 2) I argue that many alleged acts of self-binding have this character. An interesting example that has since come to my attention is the Peerage Bill of 1719. 8 In the debates there were many references to secret ballot in Congress, but only a brief mention in passing of secret ballot in elections: ‘Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd. all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures, and might materially aVect the appointments’ (Madison in Farrand 1966: vol. 2, 240–1).

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It has been suggested that ‘the equality boast in the Declaration of Independence—‘all men are created equal’—meant not that individuals were equal, but that the American people were entitled to an equality of rights with the British’ (Reid 1986: 84; also Pole 1978: 55). If this were all the phrase meant, there would have been no need for the hypocritical subterfuges I have discussed. The argument for equality between American and English subjects of Parliament led irresistibly to arguments for the equality of all Americans. In many of the US colonies, conservatives discovered that they had been playing the sorcerer’s apprentice. In New York, the elite realized that ‘those who had no property [and] were without political privilege [ . . . ] might not cease their shouting when purely British restrictions were removed. The ruling classes were in fact beginning to see that ‘‘liberty and no taxation’’ was an argument that might be used against themselves as well as against the home government’ (Becker 1968: 31–2). In Pennsylvania, too, ‘the arguments [the propertied classes] advanced in support of their rights were a double-edged weapon that cut in favor of the unrepresented classes as well as colonial self-government. By 1775 the oligarchy began to realize that it was caught between the hammer and the anvil’ (Jensen 1968: 19). Below, we shall see the perverse eVects of a similar ‘transatlantic consistency argument’ in the French assembly.

FRANCE In the Assemble´e Constituante, the denial of political equality targeted some of the same groups as in the USA, took some of the same forms, and had some of the same motivations. But there were also substantial diVerences. The political rights of women, a marginal issue in France, was non-existent in the USA. The vicissitudes of the emancipation of Jews had no American parallel.9 There is a complex analogy between the US debates over how to count slaves for purposes of representation and the French debates over representation of and in the slave-holding colonies. There is also a more straightforward parallel concerning the property requirements for suVrage. I limit myself to these two issues, which are closely interrelated. Hypocrisy about slavery was present from the very beginning of the estatesgeneral, even before their transformation into a constituent assembly. In his long opening speech, Necker, the director-general of Wnance, referred to slavery twice: (a) he expressed the hope that the subventions of the slave 9 See Singham (1994) for these two issues.

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trade might be cut to half of its current (considerable) size, ‘a measure that humanity by itself would recommend’; (b) he delivered two paragraphs of maudlin prose detailing the brutality of the slave trade and of slavery itself. As the Socie´te´ des Amis des Noirs was quick to point out, this was nothing but doublespeak.10 Later, the Finance Committee of the assembly tried to abolish the subvention completely, but the aVair was buried. In fact, the colonists and merchants succeeded in blocking any discussion of the slave trade and the subventions during the whole tenure of the assembly (Benot 2004: 92). The reason for this silence was that, with one or two exceptions, the constituants saw the maintenance of slavery as a necessary evil. Because it was necessary, it could not be criticized; because it was evil, it could not be defended (Laclos 1979: 754). They believed that the income from the Caribbean colonies, notably from Santo Domingo, was so vital that if it were lost, the revolution itself would be in danger. The British abolitionist, Thomas Clarkson, who was in Paris during the summer and fall of 1789, discussed the abolition of slavery with members of La Socie´te´ des Amis des Noirs, and reported that in their opinion: ‘The revolution was of greater importance than the abolition of the slave trade. To secure this was their Wrst object, and more particularly because the other would Xow from it, but the revolution might be injured by the immediate determination of the question.’11 In the assembly, the main defender of the colonial cause, Barnave, argued that the result of the loss of the income from slavery would be mass unemployment, a tax crisis, and loss of credit. ‘I ask you whether [ . . . ] with millions of men out of work, oVering their weapons and their tools to anyone who would employ them, it would not be easy, or at least possible, to change the established constitution, to destroy the monarchic system or to give it an unlimited extension?’ (AM 9: 760). If the colonies were lost, the constitutional monarchy he defended would be transformed either into a republic or into unconstrained absolutism. Although he, and others who used the same argument, always took care to deplore the existence of slavery and the slave trade, they equally carefully refrained from pointing to the obvious fact that it was inconsistent with the Declaration of Rights. One of his colleagues on the Committee of the Colonies, the slave-owning deputy Begoue¨n from Rouen, wrote to his constituents that ‘the almost general intention of the Assembly is to Wnd a turn of phrase which does not put the Assembly into obvious contradiction with its principles’.12 Paraphrasing Montesquieu, we might

10 The exchange between Necker and the Socie´te´ is reproduced in RF (1968: vol. 7). 11 Cited after Quinney (1970: 121). 12 Cited after Quinney (1970: 125).

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say that they were ‘drawing a veil over equality’.13 In fact, as we shall see, Robespierre used very similar language. In his journal, Le Courrier de Provence, Mirabeau drew attention to this inconsistency from the very beginning. In vol. 30, dated 20–21 August (Art. I of the Declaration was voted on August 20), he ridicules the idea that slaves born in the colonies are ‘born free’, that those taken by force from their homeland ‘remain free’, that they are ‘equal in rights’ with those who purchase them, mistreat them, and exploit them, and that ‘the anti-social distinction which exists between them is grounded in the common utility’. In an ironic message to the ‘amis des noirs’, he assures them that none of the planters in the assembly had proposed amendments to the eVect that ‘Only white men are born and remain free’ or ‘Black men are born and remain slaves’. On the contrary, he states, there is no doubt that the deputies from Santo Domingo hurried to send oV the decree to be posted everywhere on the island. At the same time, Mirabeau argued that the abolition of slavery and of the slave trade would stimulate production for the internal French market (Benot 2004: ch. 5). Another less developed exception was an intervention by the Duc de la Rochefoucauld on the night of 4 August, asking whether the abolition of slavery should not follow upon that of serfdom. (Le Courrier de Provence 1789: No. 23, 19). There is a famous phrase often attributed to Robespierre that might also seem to express a principled objection to slavery: ‘Let the colonies perish rather than a principle!’ In the Wrst place, however, he did not quite say this, although the conservative Dupont de Nemours said something very like it (AM 8: 391). In the second place, the context in which Robespierre did say something similar reveals a near-hysterical hypocrisy rather than attachment to principle. At the time (May 1791) the Assembly was debating a proposed decree to the eVect that ‘The National Assembly declares, as a constitutional article, that the [future] legislative body can make no laws about the state of persons [e´tat des personnes] except on the precise and formal request by the colonial assemblies’. After one deputy proposed to add ‘non libres’ after ‘personnes’, a deputy from the colonies proposed to replace ‘personnes non libres’ by ‘esclaves’, to make things absolutely clear. The second amendment was the occasion for an outburst by Robespierre:

13 In De l’esprit des lois (1950: bk. 12, ch. 19), Montesquieu refers to the occasional need to ‘mettre [ . . . ] un voile sur la liberte´’. Manin (2004) has demonstrated the importance of this idea for the period of the Terror. Even earlier, however, some measures were justiWed by the need to throw a veil over equality. Although political equality, which is what concerns me here, might be said to be part of liberty, the liberty Montesquieu and Manin have in mind is the freedom from arbitrary coercive measures rather than the right to vote.

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Le plus grand inte´reˆt dans cette discussion est de rendre un de´cret qui n’attaque pas d’une manie`re trop re´voltante les principes et l’honneur de l’Assemble´e. De`s le moment ou` dans un de vos de´crets vous aurez prononce´ le mot esclave, vous aurez prononce´ votre propre de´shonneur. Je me plains, au nom de l’Assemble´e elle-meˆme, de ce que, non content d’obtenir d’elle ce qu’on de´sire, on veut la forcer a` l’accorder d’une manie`re de´shonorante pour elle, et qui de´mente tous ses principes. Lorsqu’on voulut vous forcer a` lever vous-meˆmes le voile sacre´ et terrible que la pudeur meˆme du le´gislateur a e´te´ force´e de jeter, je crois que l’on aurait voulu se me´langer un moyen pour attaquer toujours avec succe`s vos de´crets, pour aVaiblir vos principes, aWn qu’on puˆt toujours vous dire: vous alle´guez sans cesse les droits de l’homme, les principes de la liberte´; et vous y avez si peu cru, vous-meˆmes, que vous avec de´cre´te´ constamment l’esclavage. C’est un grand inte´reˆt la conservation de vos colonies; mais cet inte´reˆt meˆme est relatif a` votre constitution; et l’inteˆreˆt supreˆme de la nation, et des colonies ellesmeˆmes, est que vous conserviez votre liberte´, et que vous ne renversiez pas, de vos propres mains, les bases de cette liberte´. Eh! pe´rissent vos colonies; si vous les conservez a` ce prix. Oui, s’il fallait, ou perdre vos colonies, ou perdre votre bonheur, votre gloire, votre liberte´, je re´pe´terais: pe´rissent vos colonies. (1952: 363)14

Upon which the proposer of the second amendment withdrew it, with the words: ‘There is no point in Wghting about the words, as long as the things themselves are as I understand them’ (AM 8: 396). As in the US debates, slave owners and their representatives were perfectly happy calling a spade a spade, 14 Translation (italics mine): The greatest concern in this discussion is to adopt a decree that does not attack in too revolting a manner the principles and the honour of the Assembly. The moment you pronounce the word slave in one of your decrees, you will have announced your own dishonour. I complain, in the name of the Assembly itself, that not content with obtaining from it what one desires, one also wants to force it to grant it in a manner that would dishonour it and give the lie to all its principles. When one wanted to force you to lift yourselves the terrible and sacred veil that the pudicity of the legislator had been forced to draw, I believe it was to concoct a means to attack successfully all your decrees and to weaken your principles, so that one could always say to you: you are all the time invoking the rights of man and the principles of liberty, and you believe so little in them yourself that you have consistently decreed slavery. The conservation of your colonies is an important interest, but this interest itself is subordinated to your constitution; and the supreme interest of the nation, and of the colonies themselves, is that you preserve your liberty and that you do not yourself overturn the bases of this liberty. Well—let the colonies perish, if this is the price for maintaining them. Yes—if there were a choice between losing your colonies or losing your happiness, your glory and your liberty, then I repeat: let the colonies perish. This was not the Wrst appearance of the ‘veil’ in the debates. Earlier, the clever right-wing debater, Abbe´ Maury, diagnosed the position of the opposing parties as follows. Those who pretend to argue for political rights to the mulattos do so only as a Wrst step towards freeing the slaves. The defenders of slavery, who understand this perfectly well, hesitate to deny political rights to free men who qualify as active citizens. Maury was ‘going to lift the veil’ to stop this game of hide and seek (AM 8: 391).

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but also did not mind accepting a euphemism as a cheap price for achieving consensus. The Wrst amendment, containing the phrase ‘personnes non libres’, was adopted. Gaining a half-full glass was so important to Robespierre that he was willing to give up the colonies rather than accepting one that was half empty. These debates, which occurred towards the end of the Constituante, reXect a concern for the ‘home rule’ of the colonies that was present from the very beginning. The aYnity of many constituants for the planters was due to a perception that they were the common victims of ‘ministerial despotism’. The deputies from Santo Domingo (discussed further below) had shown their solidarity by joining the third estate and taking the oath of the Jeu de Paume on 20 June. Brissot claimed that the Exclusif was a ‘slavery contract’ (Benot 2004: 45).15 In the eyes of enlightened revolutionary opinion, ‘the colonial demands were presented as democratic demands, as demands for self-government’; hence there was a ‘convergence contrary to nature between reactionary colonists and revolutionaries’ (ibid. 49–50). The despotic nature of the colonial regime itself somehow became a secondary matter. Yet there was a delicate balance to be maintained. Full self-government would lead to the abandonment of the Exclusif and the ruin of the bourgeoisie of the great trading ports, Bordeaux and Nantes. It was easier to grant the planters their demands in matters of representation (ibid. 71, 74). There were two such matters. Although Santo Domingo had not been authorized to elect deputies to the assembly, twelve of them showed up and were accepted on a provisional basis. Later they asked to be accepted on a permanent basis and, moreover, for their number to be increased to twenty. The number of white people (who alone could vote in the electoral assemblies) on the island would, on a proportional basis with the French mainland, have entitled them to two deputies. Their demand was supported by those who were impressed by their early solidarity (AM 1: 120, 123) and presumably by the trading bourgeoisie. The assembly must have been more impressed by those who, like Mirabeau, ridiculed their claim that representation should be based on the total number of inhabitants, slaves and free, black and white (ibid. 118–19).16 In a brilliant speech17 Garat (the younger) demolished the 15 Pole (1978: 25) cites a similar statement about British rule in America, adding that ‘this somewhat hyperbolic language had its repercussions: Americans had only to look around them to take their own black slaves as their point of comparison’ (see also ibid. 34–5). The obvious diVerence is that whereas in Britain itself the colonial criticism of British despotism had only a few echoes, such as Burke, the French colonies and the French assembly joined forces against ministerial despotism. 16 Condorcet, a leading member of the Socie´te´ des Amis de Noirs, had argued that any attempt by the Society to lobby for less than twelve would be counterproductive (Dorigny and Gainot 1998: 235). 17 Reproduced in Le Courrier de Provence, No. 16.

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claims of the planters, concluding that he would reserve judgement as to the number of deputies they were entitled to until they had declared that they would abstain from voting on all issues related to slavery. In the end they nevertheless obtained six deputies, three times more than their share. The other, more consequential issue was whether ‘hommes de couleur’ in the colonies, meaning (free) mulattos, should have the right to vote in the electoral assemblies if they satisWed the criteria for being an ‘active citizen’. The mulattos, who had full civil rights, were often slave owners themselves. The question of awarding them political rights created a head-on collision between the left and the center-right of the assembly. The planters and their spokesman in the assembly, notably Barnave, argued that granting mulattos full political rights would trigger a mass uprising of the slaves (AM 9: 759). In objection, the left oVered several considerations; for example that mulattos would always be the best bulwark against slave uprisings. Robespierre, for instance, claimed that the franchise of the mulattos would, by uniting the interest of all categories of slave owners, ‘cement the subordination’ of slaves more strongly than ever.18 He also argued that there was no danger that slaves would demand political rights for themselves, since the enjoyment of civil rights by the mulattos had not triggered a demand for the same rights by the slaves (ibid. 768).19 As Luther Martin said about some of his fellow delegates, Robespierre anxiously sought to avoid the admission of expressions that might be odious in the ears of the French, although willing to admit into his system those things that the expressions signiWed. Let me turn to the issue of voting rights in the French mainland itself. The Declaration of 1789 explicitly says that all men are equal in rights, including, minimally, rights of voting and eligibility.20 Yet during 20–9 October 1789, the Assembly adopted a system of weak tax-paying requirements for voting and strong tax-paying requirements for eligibility.21 To overcome this Xagrant contradiction, the constitution of 1791 established a two-level system of voting that was intended to reduce the political power of the propertyless without appearing to do so. 18 Numerous reports of this speech are found in Robespierre (1952: 348–57). In their presentation to the assembly, a deputation of mulattos argued that they were indispensable for policing the slaves (AM 8: 399–400). 19 Inconsistently, he then goes on to say (AM 9: 770) that civil rights without political rights are worthless. 20 I shall ignore a third component of political equality, namely the right of equally populated electoral districts to elect the same number of deputies. Awarding six deputies to Santo Domingo was a violation of this right. 21 I simplify. Note the signiWcance of the dates: the anti-popular measures must have been inXuenced to some degree by the popular violence of 5–6 October (Rosanvallon 1992: 185). The French bourgeoisie was beginning to distance itself from the forces that had brought it to power.

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In the October 1789 decrees, as in all later schemes, voting was reserved for (male) active citizens, deWned by a number of criteria, of which the most relevant for my purposes were those of not being a domestic servant and of paying taxes equivalent to three days’ wages. These criteria enfranchised roughly 60% of the adult population (Guennifey 1993: 78; Crook 1996: 39). By contrast, in the elections to the Estates-General, all taxpayers had been able to vote. Although no overall Wgures are available, regional studies suggest that if this principle had been incorporated in the October re`glement, the number of active citizens might have increased by 15–30 per cent (Crook 1996: 43–4). If servants had been admitted, another 8 per cent might have been able to vote (Rosanvallon 1992: 120). An indeterminate number were also excluded because they did not satisfy the residency requirement, which in the October re`glement was set to one year and in the Constitution was to be ‘determined by the law’. Robespierre denounced the contradiction between the limited suVrage and the Declaration in violent terms. In the October debates he stated that neither suVrage nor eligibility should be subject to any economic qualiWcations (AM 2: 81–2). Without explicit reference to the Declaration, Abbe´ Gre´goire objected that the tax-paying requirement would create an ‘aristocracy of the rich’ (ibid. 82).22 At that time, these objections do not seem to have made much of an impact. Instead, Desmeuniers, speaking for the Constitutional Committee, referred brieXy to the danger of corruption if the poor got to vote, thus echoing Gouverneur Morris’s idea that the aristocracy of the rich was more likely to arise by giving the vote to the poor than by denying it (ibid.). When the issues were debated again in the spring and summer of 1791, opinions were more polarized. In a speech from March–April 1791, mainly devoted to eligibility, Robespierre also criticizes the idea of ‘passive citizens’: Les partisans du syste`me que j’attaque [ . . . ], n’osant contester la qualite´ de citoyens a` ceux qu’ils condamnaient a` l’exhe´re´dation politique [ . . . ], se sont borne´s a` e´luder le principe de l’e´galite´ qu’elle pre´suppose ne´cessairement, par la distinction de citoyens actifs et de citoyens passifs. Comptant sur la facilite´ avec laquelle on gouverne les hommes par les mots, ils ont essaye´ de nous donner le change en publiant, par cette expression nouvelle, la violation la plus manifeste des droits de l’homme. Mais qui peut eˆtre assez stupide pour ne pas apercevoir que ce mot ne peut changer les principes, ni re´soudre la diYculte´; puisque de´clarer que tels citoyens ne seront point actifs, ou dire qu’ils n’exerceront plus les droits politiques attache´s au titre de 22 Although the speech was made in the debate over suVrage requirement, it is likely that he had in mind the much more rigorous eligibility requirements.

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citoyen, c’est exactement la meˆme chose dans l’idiome de ces subtils politiques. (1952: 162–3; my italics)23

Robespierre here is as adept at unmasking hypocrisy as he would later be at perpetrating it. If the status of a passive citizen and of a non-citizen is one and the same thing, so is that of an unfree man and a slave.24 In this case, however, he was not prepared to draw a veil over equality. Robespierre also makes the closely related charge of inconsistency against those who had imposed speciWc levels of tax contributions as conditions for the right to vote. He tells his opponents in the assembly that ‘those who chose you, those by virtue of whom you exist, were not [subject to these tax-paying qualiWcations]; they were all the French [ . . . ] who paid some taxes. [ . . . ] How can you deprive a part of those men [ . . . ] of those very political rights which they exercised in sending you to this assembly?’ (ibid. 172).25 This is a powerful argument. In Frankfurt in 1848, the unease of the framers at the prospect of discarding the mode of election by which they themselves had been chosen caused them to retain universal male suVrage in the constitution (Eyck 1968: 44–5, 367–8, 382). A similar unease may be at the root of an anonymous notice inserted in Le Moniteur as a response to a claim that ‘France now has citizens that are passive or subject’. The author claims that in contradistinction to countries where some individuals are condemned to lifelong subjection, ‘there is no French citizen who by a few years of work and saving cannot make himself competent to Wll all public functions’ (AM 8: 514). In other words, rights can be universal and yet conditional if all can satisfy the conditions by their own eVorts. There are no passive citizens, merely ‘potential active citizens’. Crook compares the argument with Guizot’s famous injunction, ‘Enrichissez-vous’, often seen as an encouragement to work and save in order to be able to vote (1996: 32). In the Wrst place, however, Guizot’s statement was made in a totally diVerent 23 Translation (italics mine): The advocates of the system I am attacking [ . . . ], not daring to contest the quality of citizens whom they condemned to disenfranchisement, restricted themselves to eluding the principle of equality inherent in citizenship by the distinction between active and passive citizens. Counting on the facility with which one can govern men through words, they tried to lead us astray by announcing, through this novel expression, the most manifest violation of the rights of man. But who can be so stupid as not to see that the word cannot change the principles, or resolve the diYculty, since to declare that some citizens will not be active, or to say that they will not exercise the political rights attached to citizenship, is one and the same thing. 24 In fact, the former distinction has more substance than the latter, since passive citizens enjoyed full civil rights. 25 See also AM 9: 374.

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context;26 in the second place, the property qualiWcations at his time were so high that nobody could expect to satisfy them merely by hard work (Jaure`s 1969: 586). In 1789, though, the idea was more plausible. Needless to say, however, women could not turn themselves into men, or mulattos into whites; nor could disabilities aVecting wage-earning capacities be overcome by hard work. The main argument, in 1791, was that unrestricted suVrage would create an unholy alliance between the very rich and the very poor, the former using their wealth to buy the votes of the latter. This point was clearly made by Prugnon (AM 9: 372), and more obscurely but also more eloquently, by Barnave (ibid. 376–7).27 According to GueniVey, this was actually a progressive argument: ‘Excluding the poor was a revolutionary act by the Constituante’ (1993: 48).28 It seems to me, however, that one can make the same objection that I made to Gouverneur Morris: if the constituants had really been concerned with preventing vote-buying and ensuring the real independence of the vote, they could have adopted the secret ballot. In fact, as Guennifey (ibid. 281–4) himself shows, they did adopt it, and for precisely that reason. To extend the suVrage to the poorest among the taxpayers would not, therefore, have presented a danger. The relatively weak restrictions on suVrage were, however, a less contested issue than the more rigorous restrictions on eligibility. In October 1789 the Constituante adopted the requirement that deputies had to pay at least a ‘marc d’argent’ in taxes and own some real estate. It has been estimated that ‘at best, no more than one active citizen in ten’ satisWed this criterion (Crook 1996: 46). As Robespierre pointed out, it contradicted not only Art. I of the Declaration but also Art. VI: ‘All citizens, being equal in the eyes of the law, are equally admissible to all public dignities, positions, and employments, according to their ability, and on the basis of no other distinction than that of their virtues and talents’ (1952: 161). The hostility to this measure induced a largely cosmetic reform in 1791, when the assembly decided on low taxpaying requirements for primary voters and for deputies, while very stringent economic qualiWcations were required for the electors who were to be chosen by the primary voters to appoint the deputies. In this way, one could assert with the appearance of truth that all or most taxpayers could vote and be 26 Le Moniteur (1843: 345). 27 It is not quite clear whether Barnave here is referring to the Wrst or to the second tier of the voting system. 28 Guennifey cities Michelet and Jaure`s in his support; see also Fitzsimmons (1994: 190). Although Michelet did in fact oVer this argument, he was criticized by Jaure`s (1969: 593); see also Rosanvallon (1992: 80).

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deputies, while at the same time making it very likely that those eVectively chosen as deputies would belong to the wealthy group that chose them. As Crook writes: ‘Some historians have regarded this as a victory for democracy, yet it came in August 1791 when radicals had been forced on the defensive’ (1996: 47). More perceptive than the view of those historians was that of Brissot, who saw the project as a ‘hidden translation’ of the marc d’argent (Guennifey 1993: 61). Along similar lines, one might cite the journalist Loustalot, who wanted to ensure that workers were free to vote de jure but not de facto, ‘by a clever choice’ of the polling place (Jaure`s 1969: 613). The aim was to produce the appearance of equality and the reality of inequality. One is reminded of Aristotle’s cynical observation: If oYce brought no proWt, then and only then could democracy and aristocracy be combined; for both notables and people might have their wishes gratiWed. All would be able to hold oYce, which is the aim of democracy, and the notables would be magistrates, which is the aim of aristocracy. (1990: 1308b–1309a)

In an attempt to justify the interposition of an elite body between the primary voters and the deputies, Barnave produced another distinction without a diVerence. He claimed that while being an active citizen or primary voter was a right, being an elector was a function to which no one could claim a right (AM 9: 376). The argument is specious, since in a two-tiered system it goes without saying that not everybody can actually serve at the second tier nor a fortiori have a right to do so. What matters in (what we today would call) a democracy is that everybody has a right to present himself or herself as a second-tier candidate. In the language of quantiWed modal logic, the fact that it is not possible that for all x, x is an elector, is consistent with the claim that for all x, it is possible that x is an elector.

STRATEGIES AND VARIETIES OF HYPOCRISY For the propertied classes, the rhetoric of equality can be useful as well as dangerous—useful to undermine formal privilege, but dangerous when used to redress real disadvantage. Often, it has proved diYcult to tune it so Wnely as to achieve the Wrst end without spillovers to the second. In this article I have surveyed some of the strategies of hypocrisy that were deployed in revolutionary USA and France to prevent this spillover. The simplest strategy was to redescribe the inequality to make it appear in a more favourable light. Among the examples I have noted are the descriptions of slaves as ‘other persons’ or ‘unfree persons’, of passive citizens as potentially

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active citizens, and of second-tier electors as exercising a function rather than a right. Except for the disingenuous circumlocutions used to disguise slavery, these are not merely euphemisms. The claim that the status of a passive citizen could be overcome by the individual’s own eVort resonates with general ideas about ‘careers open to talent’. The attempt to distinguish between functions and rights could also, although less plausibly, be viewed in the same light, since anyone could in principle acquire the qualiWcations for being an elector. A more ambitious strategy is to try to justify inequality. The French Declaration itself accepts social distinctions if based on ‘common utility’. What that phrase means, however, is unclear. In the case of slavery, nobody in either country defended the institution by claiming that it promoted the sum total of utility in society, counting that of slaves as well as of free men. A fortiori, nobody claimed that slavery made everybody better oV, slaves as well as free men. When Mirabeau ridiculed the idea that slavery could be defended by the common utility, he presumably had in mind that slavery was inimical to the utility of the slaves. More or less half-hearted arguments were made, to be sure, that immediate freeing of the slaves would make them worse oV, so that the ground had to be prepared Wrst. Needless to say, slave owners were just as opposed to preparing the ground as they were to immediate freedom. In both countries, denying the poor the right to vote was justiWed as being in the interest of the poor—as preventing rather than creating an aristocracy of the rich. The idea, which goes back to the Roman Republic, might seem quite plausible. If the rich can buy the votes of the poor or use their inXuence on their clients to make them vote the right way, it might be better to block their access to this resource. What this often means in practice, however, is that each fraction within the elite will be prevented from mobilizing the votes of their clients against other fractions. Although avoidance of intra-elite conXict may be in the interest of the elite as a whole, it may not be in the general interest. As Marx said, quoting an English proverb, ‘When thieves fall out, honest men come into their own’. Athenian politics in the Wfth century bc may provide an example (Ostwald 1986: 179–80; Ober 1989: 85). As I have noted, the argument rests on the crucial premise of public voting. The reason why the secret ballot did not have a more central place as a remedy to vote-buying and inXuence in these debates is presumably because the elite feared that if the propertyless could vote unsupervised by their betters, they would vote in their own interest. Some, like Madison, added that because of their myopia the poor were likely to kill the goose laying the golden eggs, thus undermining their long-term interest as well as that of everyone else. His mind was shaped by what he saw as conWscatory legislation in the various states, through the issuing of paper money and debtor relief legislation. He also noted, however, that one reason for these measures was that under the

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Articles of Confederation, any given state had no incentive to internalize the eVect of its actions on other states. ‘Paper money, installments of debts, occlusion of Courts, making property legal tender, may [ . . . ] be deemed to be aggression on the rights of other States’ and not merely on the rights of citizens in the state itself (Madison 1787: 70). To some extent, therefore, free riding on other states rather than myopia may have been the culprit.29 The remedy to this problem is not to limit the suVrage, but to create a strong national government. To the extent that the culprit was indeed myopia, the proper remedy would be a constitutional ban on paper money and debtor relief.30 It is tempting to conclude, then, that the limitation of the suVrage was intended to prevent redistributive measures that would be against the interest of the rich rather than conWscatory measures that would be against the interest of all. On a concluding note let me observe that hypocrisy can be either aggressive or defensive. In aggressive hypocrisy, self-interest is transmuted into a cause. In defensive hypocrisy, self-interest uses the obfuscating strategies I have been concerned to describe. In the revolutionary era, those concerned with perpetuating American slavery deployed the defensive variety. In the decades before the Civil War, slave owners went on the oVensive. In contemporary USA, the National RiXe Association oVers an example of aggressive hypocrisy when it presents the economic interest of gun manufacturers under the guise of the Second Amendment. The practices of tobacco companies mostly belong to the defensive variety, as when they subsidize campaigns against smoking by the young to distract attention from the harm they are causing. The mode of hypocrisy Cohen has exposed in his recent work is mainly of the defensive variety. He is attacking the arguments for inequality made by liberals rather than those oVered by libertarians. In his earlier work, notably in his engagement with libertarianism, he also took on (what I consider, although perhaps Cohen does not) aggressively hypocritical arguments for inequality. His strategies in dealing with these two opponents are interestingly diVerent. Whereas he attacked the libertarians exclusively on intellectual grounds, he is prepared to make ad hominem objections to the liberals. Some defenders of liberal inequality, he claims, refer to themselves in the third person singular rather than taking the more appropriate Wrst person perspective. Rawls argued that even in a perfectly just society some inequality of income may be necessary in order to provide the more skilled members of society with incentives to perform socially valuable work. But, Cohen objects, the skilled themselves cannot say that the inequalities are necessary, since they make them necessary. 29 See Hardin (1999: ch. 3) and Dougherty (2001) for arguments along this line. 30 The constitution of 1787 embodied both remedies.

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The restrictions on the suVrage with which I have been mainly concerned may be seen in a somewhat similar perspective. The privileged cannot coherently assert that these restrictions are necessary if, in fact, it is the social and economic policies they adopt that make them necessary.

REFERENCES AM ¼ Re´impression de l’Ancien Moniteur, Paris, 1840 V. Anderson, T. (1993). Creating the Constitution: The Convention of 1787 and the First Congress. University Park, PA: Pennsylvania State University Press. Aristotle (1990). The Politics, P. Everson (ed.). Cambridge: Cambridge University Press. Becker, C. 1968). A History of the Political Parties in the Province of New York, 1760– 1776. Madison, WI: University of Wisconsin Press. Benot, Y. (2004). La Re´volution franc¸aise et la Wn des colonies 1789–1794. Paris: Editions de la De´couverte. Courrier de Provence, Le (1789). Paris. Crook, M. (1996). Elections in the French Revolution. Cambridge: Cambridge University Press. Dorigny, M. and Gainot, B. (eds.) (1998). La Socie´te´ des amis des noirs. Paris: Editions Unesco. Dougherty, K. (2001). Collective Action under the Articles of Confederation. Cambridge: Cambridge University Press. Elster, J. (1999). Alchemies of the Mind. Cambridge: Cambridge University Press. —— (2000). Ulysses Unbound. Cambridge: Cambridge University Press. Eyck, F. (1968). The Frankfurt Parliament 1848–49. London: Macmillan. Farrand, M. (ed.) (1966). Records of the Federal Convention. New Haven, CT: Yale University Press. Finkelman, P. (1987). ‘Slavery and the Constitutional Convention: Making a Covenant with Death’, in R. Beeman, S. Botein, and E. C. Carter II (eds.), Beyond Confederation: Origins of the Constitution and American National Identity. Chapel Hill, NC: University of North Carolina Press. Fitzsimmons, M. (1994). The Remaking of France. Cambridge: Cambridge University Press. GueniVey, P. (1993). Le nombre et la raison: La Re´volution franc¸aise et les e´lections. Paris: Editions de l’EHESS. Hardin, R. (1999). Liberalism, Constitutionalism, and Democracy. Oxford: Oxford University Press. Jaure`s, J. (1969). Histoire socialiste de la Re´volution franc¸aise, vol. 1. Paris: Editions Sociales.

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Jensen, M. (1968). The Articles of Confederation. Madison, WI: University of Wisconsin Press. Keyssar, A. (2000). The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books. Kydland, F. and Prescott, E. (1977). ‘Rules Rather than Discretion: The Inconsistency of Optimal Plans’, Journal of Political Economy, 85. Laclos, C. de (1979). Œuvres Comple`tes. Paris: Gallimard (e´ditions de la Ple´iade). Lintott, A. (1999). The Constitution of the Roman Republic. Oxford: Oxford University Press. Madison, J. (1787 [1999]). ‘Vices of the political system of the United States’, in J. Rakove (ed.), Madison: Writings. New York: Library of America. Manin, B. (2004). ‘Drawing a Veil over Liberty: The Language of Public Safety During the French Revolution’, Department of Political Science, New York University (unpublished manuscript). Moniteur, Le (1843). 2 March. Accessed from http://www.dicoperso.com/term/ adaeaea-d5e60a25a52, xhtml. Montesquieu, Charles de Secondat, baron de (1950). De l’esprit des lois, Paris: Belles Lettres. Ober, J. (1989). Mass and Elite in Democratic Athens. Princeton, NJ: Princeton University Press. Ostwald, M. (1986). From Popular Sovereignty to the Sovereignty of Law. Berkeley, CA: University of California Press. Pole, J. R. (1978). The Pursuit of Equality in American History, Berkeley, CA: University of California Press. Quinney, V. (1970). ‘Decisions on Slavery, the Slave-Trade and Civil Rights for Negroes in the Early French Revolution’, Journal of Negro History, 55. RF ¼ La Re´volution Franc¸aise et l’abolition de l’esclavage, vols. 1–12. Paris: Editions d’Histoire Sociale, 1968. Reid, J. (1986). Constitutional History of the American Revolution: The Authority of Rights. Madison, WI: University of Wisconsin Press. Robespierre, M. (1952). Discours Janvier–Septembre 1791. Paris: Presses Universitaires de France. Rosanvallon, P. (1992). Le sacre du citoyen: Histoire du suVrage universel en France. Paris: Gallimard. Schlicht, E. (1984). ‘Cognitive dissonance in economics’ Schriften des Vereins fu¨r Sozialpolitik, Gesellschaft fu¨r Wirtschafts-und Sozialwissenschaften, Neue Folge 141. Singham, S. (1994). ‘Betwixt Cattle and Men: Jews, Blacks, and Women, and the Declaration of the Rights of Man’, in D. van Kley (ed.), The French Idea of Freedom: The Old Regime and the Declaration of Rights of 1789. Stanford, CA: Stanford University Press.

3 Kant’s Arguments for His Formula of Universal Law Derek ParWt

I am delighted to discuss some of Kant’s arguments in a volume that celebrates the writer of some brilliant unpublished lectures on Kant, and the most acute critic of arguments I know.

1 While deWning his two kinds of imperative, Kant writes: (A) All imperatives command either hypothetically or categorically. The former represent the practical necessity of a possible action as a means for attaining something else that one wills (or might will). The categorical imperative would be one which represented an action as objectively necessary of itself, without reference to another end. (1797: 414)

In this passage, Kant declares that there are only two kinds of claim about what is practically necessary, or what we ought to do. Imperatives are hypothetical if they claim that we ought to do something as a means of achieving one of our ends. Imperatives are categorical if they claim that we ought to do something not as a means of achieving any end, but, as we can say, for its own sake only. These are not, as Kant declares, the only two kinds of imperative. Kant’s remarks involve, not one, but two distinctions, which combine to give us four possibilities. An imperative might tell us to act in some way wholly or partly as a means to achieving some end

not even partly as a means, but for its own sake only

if we want or will to act in this way or to achieve this end

(1)

(2)

whatever we want or will

(3)

(4)

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Kant claims that all imperatives are of types (1) or (4). He ignores (2) and (3). There is little harm in ignoring imperatives of type (2), which tell us to do something for its own sake if and because that is what we want to do. It is a serious mistake, however, to ignore imperatives of type (3). Kant’s categorical imperatives are unconditional, in the sense that they apply to us whatever we want or will. All such imperatives, Kant’s remarks imply, tell us to act in some way for its own sake only, not as a means of achieving any other end. That is not true. Of the imperatives that apply to us whatever we want or will, some might require us to act in some way, not for its own sake only, but partly or wholly as a means of achieving some unconditionally required end. At one point, Kant comes close to recognizing that there might be such imperatives. He writes: What serves the will as the objective ground of its self-determination is an end, and this, if it is given by reason alone, must hold equally for all rational beings. . . . The subjective ground of desire is an incentive, the objective ground of volition is a motive; hence the distinction between subjective ends, which rest on incentives, and objective ends, which depend on motives, which hold for every rational being. (ibid. 427–8)

Kant here allows that, while some ends are merely subjective, there may also be objective ends, which reason gives to all rational beings. Since Kant draws this distinction, we would expect that, after describing imperatives which are hypothetical, because they appeal to our subjective ends, Kant would describe a corresponding class of categorical imperatives that give us objective ends. But Kant claims instead that all categorical imperatives declare some act to be necessary of itself, without reference to another end. This claim implies that there are no objective ends given by reason to all rational beings. More exactly, Kant’s claim implies that there are no such ends in the ordinary sense of ‘end’, which refers to anything that we might try to achieve. Kant does claim that there are objective ends-in-themselves, which are not ends to be achieved, but ends only in Kant’s wider sense of being ‘grounds of self-determination’. But, in the Groundwork, Kant assumes that there are no objective ends to be achieved. Since Kant mentions the category of objective ends to be achieved, his assumption might be that this category is empty. And he writes: All objects of the inclinations have only a conditional worth; for, if there were no inclinations . . . their object would be without worth . . . the worth of any object to be acquired by our action is always conditional. (ibid. 428)

These remarks imply that all achievable ends must derive their value from our desires. Such a claim would apply even to our own perfection and the happiness of others. These remarks may, however, be misleading. Rather than

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denying that there are any such objective ends, Kant may have failed to remember this possibility. That is suggested by Kant’s claim, in passage (A), that all imperatives either represent some act as a necessary means to some subjective end, or represent some act as necessary in itself. This claim is about the content of possible imperatives. (A) cannot be read as claiming that, though some imperatives represent some end as objective, or categorically required, no such imperatives are true, or valid. So it seems that, in this passage and in his later arguments, Kant overlooks this kind of imperative. Given Kant’s love of taxonomies, which are exhaustive, in the sense of covering every possibility, Kant’s overlooking of these imperatives is a mystery. To help us both to address this mystery and to assess Kant’s arguments, we can next distinguish various senses in which Kant uses two of his most important terms: ‘material’ and ‘formal’. These senses partly overlap with Kant’s uses of ‘hypothetical’ and ‘categorical’. In his most explicit deWnition, Kant writes: Practical principles are formal when they abstract from all subjective ends; they are material when they are founded upon subjective ends, and hence on certain incentives. (ibid. 427–8)

Principles that ‘abstract’ from our ‘subjective ends’, in the sense of applying to us whatever we want or will, we can call normatively formal in sense 1. Other principles apply to us only if we have certain desires, or subjective ends. We can call such principles normatively material in sense 1. If principles are in this sense normatively material, we are moved to act upon them, Kant assumes, by our desires to achieve our ends. We can call such principles motivationally material. Kant similarly assumes that, if some principle is normatively formal in sense 1, because it applies to us whatever our desires, our acceptance of this principle can move us to act without the help of any desire. We can call such principles motivationally formal. Principles are teleological if they tell us to act in certain ways either partly or wholly as a means of achieving some end. Kant sometimes uses the word ‘matter’ to refer, not only to subjective ends, but to any end. Thus he deWnes the ‘matter’ of an action as ‘what is to result from it’ (ibid. 428). Since teleological principles have a ‘matter’ in this wider sense, we can call them normatively material in sense 2. Of such imperatives, some are also normatively material in sense 1, since they tell us to do what is needed to achieve some desired or subjective end. But teleological imperatives may instead be normatively formal in sense 1, requiring us, whatever our desires, to try to achieve some end. Such imperatives give us an objective end. Consider next principles that are not teleological. Since these principles are not normatively material in sense 2, we can call them normatively formal in sense 2. These principles are deontological if they require us to act in some way

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for its own sake only, rather than as a means of achieving some end. Two examples are requirements to tell the truth and to keep our promises, without regard to the eVects of these acts. The phrase ‘for its own sake’ can have, we should note, a diVerent use. Our acts have moral worth, Kant claims, only when we act ‘from duty’, or for the sake of duty. When we act on some deontological principle, such as a requirement not to lie, we may be both acting in some way for its own sake, rather than as a means of producing some eVect, and be doing our duty for its own sake. We might also act from duty on some teleological principle, such as one requiring us to beneWt others. We would then do our duty for its own sake, though we believe our duty to be to act in this way, not for its own sake, but as a means of beneWtting others. There is another kind of non-teleological principle. These principles impose some formal constraint on our decisions and our acts. One example is Kant’s Formula of Universal Law, which requires that we act only on universalizable maxims. We can call such principles normatively formal in sense 3. Kant uses ‘formal’ in this sense when he writes: Those who, in the conception of duty, are not satisWed with the merely formal determining ground as such (conformity to law). (1793)1

Principles that are not, in this sense, normatively formal we can call substantive, or normatively material in sense 3. Deontological principles, we should note, are in this sense material, since they require us to act in certain ways. Kant claims that his formula requires ‘mere conformity to law as such, without having as its basis some law determined for certain actions’ (1797: 402). Deontological principles are, precisely, laws that are ‘determined for certain actions’. We have, then, three normative senses of ‘formal’ and ‘material’, and one motivational sense. These senses can be shown as follows: motivationally material motivates us only with the help of some desire

motivationally formal motivates us all by itself

normatively material-1 or hypothetical applies to us only if and because there is something that we want or will

normatively formal-1 or categorical applies to us whatever we want or will

normatively material-2 or teleological tells us to act in certain ways as a means of achieving some end

normatively formal-2 not teleological

normatively material-3 or substantive tells us to act in certain ways

normatively formal-3 imposes only a formal constraint on our maxims or our acts

1 First note in the Preface to the First Edition.

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Kant uses ‘categorical’ to mean both ‘motivationally formal’ and ‘normatively formal’ in both senses 1 and 2. I shall use ‘categorical’ more narrowly, to mean only ‘normatively formal in sense 1’. On my use, imperatives are categorical if they are unconditional in the sense of applying to us whatever we want or will. Kant uses ‘hypothetical’ to mean both ‘motivationally material’ and ‘normatively material’ in both senses 1 and 2. I shall use ‘hypothetical’ to mean only ‘normatively material in sense 1’. Imperatives are in this sense hypothetical when they appeal to something that we want or will. Return now to the question of why Kant overlooked the possibility of categorical teleological imperatives. One explanation may be this. Kant may have had in mind three of the distinctions I have just drawn. When considering imperatives that require us to act in some way, Kant may have seen that any such imperative must either motivate us only with the help of some desire

or

motivate us all by itself,

and must either apply to us only if we have some desire

or

apply to us whatever our desires,

or

tell us to act in some way for its own sake only.

and must either tell us to act in some way as a means of achieving some end

If Kant did not distinguish clearly between these distinctions—as is suggested by the fact that he uses ‘formal’ and ‘material’ to express all three distinctions—this may explain why he misdescribes the third distinction, claiming that all imperatives tell us to act in some way either for its own sake only, or as a means of achieving some desired end. By importing the reference to desire from the left-hand side of the other two exhaustive distinctions, Kant may have thereby drawn a distinction which is not exhaustive, since it overlooks those imperatives that tell us to act in some way as a means of achieving some categorically required end.

2 We can now turn to Kant’s arguments for what he calls his ‘formal supreme principle of morality’, or what I shall call his Formal Principle. This principle can be taken to include all of Kant’s formulae, except for the Formula of Humanity, which will need a separate discussion.

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One of Kant’s arguments, in Groundwork 2, is astonishingly brief. This argument assumes the claim that we have just been discussing: [A]ll imperatives command either hypothetically or categorically. The former represent the practical necessity of a possible action as a means for attaining something else that one wills (or might will). The categorical imperative would be one which represented an action as objectively necessary of itself, without reference to another end. (ibid. 414)

Kant writes: We want Wrst to enquire whether the mere concept of a categorical imperative may not also provide its formula containing the proposition which alone can be a categorical imperative. . . . When I think of a hypothetical imperative in general I do not know before hand what it will contain. . . . But when I think of a categorical imperative, I know at once what it contains. For since the imperative contains, beyond the law, only the necessity that the maxim be in conformity with this law, while the law contains no condition to which it would be limited, nothing is left with which the maxim of the action should conform but the universality of a law as such, and this conformity alone is what the imperative properly represents as necessary. Hence there is only one categorical imperative, and it is this: Act only in accordance with that maxim through which you can at the same time will that it become a universal law. (ibid. 420–1)

In these passages, Kant argues: 1. All imperatives are either hypothetical, telling us to take the means to some end that we have willed, or categorical, telling us to act in some way for its own sake only, not as a means of achieving any end. 2. Categorical imperatives impose only a formal constraint on our maxims and our acts, since they require only conformity with the universality of a law. Therefore 3. There is only one categorical imperative, which requires us to act only on maxims that we could will to be universal laws. This argument is both invalid and unsound. Kant’s premises are false, and, even if they were true, Kant’s conclusion would not follow. Kant’s Wrst premise, as we have seen, overlooks those categorical imperatives that are teleological, since they require us to try to achieve some end. Kant’s second premise makes two mistakes. Kant has deWned imperatives as categorical when they ‘represent some act as necessary of itself, without reference to another end’. That description Wts deontological principles, such as requirements to tell the truth or to keep our promises. But Kant’s Formal Principle does not claim certain acts to be necessary in themselves,

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since it imposes only a formal constraint. So, on Kant’s deWnition, Kant’s Principle—which he calls ‘the Categorical Imperative’—is not a categorical imperative. Kant might revise his deWnition, so that it covered his principle. But Kant’s second premise would still be false, since deontological principles do not impose only a formal constraint. As several writers note, Kant’s conclusion involves another mistake. Kant assumes that, if some imperative imposes only a formal constraint, this imperative must be his Formal Principle, which requires us to act only on maxims that we could rationally will to be universal laws. That is not true, since there are other possible formal constraints. One example is a requirement to act only in ways in which we believe that it would be rational for everyone to act. This requirement is quite diVerent from Kant’s Principle. We might believe, for example, that it would be rational for everyone to do whatever would be best for themselves, though we could not rationally will it to be true that everyone acts in this way. This mistake might be reparable. Kant might argue that, of the possible formal constraints, only his principle meets some further requirement. But this argument’s premises cannot be repaired. There is no hope of showing that, if some imperative is categorical, it must impose only a formal constraint. Why did Kant make these mistakes? He may have had in mind, but failed to distinguish, the three senses in which imperatives can be normatively formal. If Kant had distinguished these senses, he would have seen that his argument assumes that being formal in sense 1 implies being formal in sense 2, which implies being formal in sense 3. Kant could not have believed that these inferences were valid. The Wrst inference assumes that, if some imperative applies to us whatever we want or will, it cannot tell us to act in some way as a means of achieving some required end. That is obviously false. The second inference assumes that, if some imperative does not tell us to try to achieve some end, it cannot tell us to act in certain ways, but must impose only a formal constraint. That is also obviously false. Kant’s failure to notice these points may again be due to his preference for thinking at the most abstract level. Only that could explain how, in giving this argument, Kant overlooks the possibility of both teleological and deontological categorical imperatives. Kant thereby overlooks most of the moral principles that other people accept. It may be objected that Kant himself accepted some of these other principles. Kant believed that we should keep our promises, and that we should not lie; and in his later Metaphysics of Morals, Kant claimed that there are two categorically required ends: our own perfection and the happiness of others. Since Kant himself accepted these other principles, it may seem not to matter

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that, in the argument we have been discussing, Kant overlooks such principles. This mistake does, I believe, matter. Kant’s overlooking of these other principles undermines some of his arguments. And, when he appeals to some of these other principles, he derives them from his Formal Principle. That greatly aVects both the content of Kant’s view, and his inXuence on later thinkers.

3 We can turn next to Groundwork 1. Consider Wrst these remarks: [A]n action from duty has its moral worth . . . in the principle of volition in accordance with which the act is done without regard for any object of the faculty of desire. . . . For the will stands between its a priori principle, which is formal, and its a posteriori incentive, which is material, as at a crossroads; and since it must still be determined by something, it must be determined by the formal principle of volition if it does an action from duty, since every material principle has been withdrawn from it. . . . [Hence] mere conformity to law as such, without having as its basis some law determined for certain actions, is what serves the will as its principle, and must so serve it if duty is not to be everywhere an empty delusion. (ibid. 399–400)

Kant’s argument here is this: 1. An act has moral worth only when the agent’s motive is to do her duty. 2. Such an agent acts on a principle that is not material, since it does not appeal to any of her desires. 3. Such a principle must be formal, requiring mere conformity to law as such. Therefore 4. This requirement is the only moral law. In explaining his Wrst premise, Kant compares two philanthropists. The Wrst helps other people out of sympathy, or because he wants to make them happy. The second helps others only because he believes that to be his duty. Of these people, Kant claims, the Wrst is lovable, and deserves praise, but only the acts of the second have moral worth. This may be Kant’s least popular claim, damaging his reputation even more than his claim that we should not lie to prevent a murder. Kant’s view about moral worth has also been well defended. But we need not consider this

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defence, since Kant’s argument need not appeal to his view about moral worth. His Wrst two premises can become: 5. When we believe some act to be our duty, we believe we should act in this way whether or not this act would fulWl any of our desires. With some qualiWcations, that is true. According to this argument’s third premise, if some principle does not appeal to our desires, it must require mere conformity to law. That is not true. Such a principle might require us either to try to achieve some end, or to act in certain ways. Kant’s argument again overlooks all of the substantive principles that are the main alternatives to his view. Why did Kant assume that, if some principle does not appeal to our desires, it must require mere conformity to law? He may again have been misled by his failure to distinguish between his diVerent uses of the words ‘material’ and ‘formal’. The will, Kant writes, must be determined by the formal principle of volition if it does an action from duty, since every material principle has been withdrawn from it.

Kant here assumes that, if some principle is not normatively material in sense 1, because it does not appeal to our desires, this principle must be normatively formal in sense 3, imposing only a formal constraint on our acts. That is not true. Although such a principle is normatively formal in sense 1, it might not be normatively formal in either sense 3 or sense 2. Kant’s use of the word ‘formal’ blurs these distinctions. There is another way in which Kant may have gone astray. In the same passage, Kant writes: [T]he purposes we may have for our actions, and their eVects as ends and incentives of the will, can give no actions unconditional and moral worth. . . . In what, then, can this worth lie . . . ? It can lie nowhere else than in the principle of the will without regard for the ends that can be brought about by such an action. For the will stands between its . . . principle, which is formal, and its . . . incentive, which is material. (ibid.)

In the Wrst sentence here, Kant’s use of the word ‘ends’ must refer to our subjective ends, or what we are trying to achieve. His point is that an act’s moral worth lies, not in the achievement of a subjective end, but in the agent’s motive. But, when Kant later writes ‘without regard for the ends that can be brought about by such an action’, he may be shifting, without noticing this, to the wider use of ‘end’ that covers all possible ends, including those that are objective, or categorically required. This may be why Kant wrongly concludes

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that the moral law must be formal in the sense of having no ‘regard for the ends’ that our acts might bring about. Groundwork 1 suggests another argument. Kant writes: [A]n action from duty is to put aside entirely the inXuence of inclination and with it every object of the will; hence there is left for the will nothing that could determine it except objectively the law and subjectively pure respect for this practical law. . . . But what kind of law can that be, the representation of which must determine the will, even without regard for the eVect expected from it . . . ? Since I have deprived the will of every impulse that could arise for it from obeying some law, nothing is left but the conformity of actions as such with universal law, which alone is to serve the will as its principle, that is: I ought never to act except in such a way that I could also will that my maxim should become a universal law. (ibid. 400–2)

Kant’s argument here is this: 1. When our motive in acting is to do our duty, we must be acting on some principle whose acceptance motivates us without the help of any desire for our act’s eVects. 2. For some principle to have such motivating force, it must be purely formal, requiring only that our acts conform with universal law. 3. Such a principle must require that we act only on maxims that we could will to be universal laws. Therefore 4. This requirement is the only moral law. Kant might have accepted a stronger form of premise 1, since he might have claimed that, when we act from duty, we cannot be acting to fulWl any desire. Humeans would object that, to act from duty, we must be moved by a desire to do our duty. Kant might have answered that this motive is not really a desire. But we can ignore this disagreement. Kant’s Wrst premise claims only that, when we act from duty, we are not moved by a desire for our act’s eVects. That is true even if we are moved by a desire to do our duty. Kant’s second premise, though, is false. Return to Kant’s philanthropist who promotes the happiness of others, not because he wants to make them happy, but from duty. Kant’s argument implies that, since this person is not moved by a desire for his act’s eVects, he must be acting on a principle that is purely formal in sense 3, since it imposes only on a formal constraint. That is not so. This person might be acting on a principle that requires us to promote the happiness of others. Kant’s third premise, as we have seen, is also false, since a principle could be purely formal without requiring that we act on universalizable maxims.

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Though this premise might be repaired, nothing can be done with premise 2. There is no hope of showing that, when our motive is to do our duty, we must be acting on some principle that is purely formal in sense 3. Why did Kant make this assumption? When our motive is to do our duty, this motive is formal in the sense that it does not involve, or abstracts from, the content of our duty. This feature of our motive Kant may have mistakenly transferred to the principle on which we act. Jerome Schneewind writes that, on Kant’s view, a moral agent acts on principle, and that the only principle available, because she is not moved by the content of her action, must be formal. The agent of good will must therefore be moved by the bare lawfulness of the act. (1992: 325–6)

Though such a person may be, in one sense, moved by ‘the bare lawfulness’ of her act, that sense is only that her motive is duty. That leaves it open what she believes her duty to be. She may be acting on some principle that is not formal, since it requires her either to try to achieve some end, or to act in certain ways. Kant may also again be misled by the ambiguity in his use of the word ‘end’. In another summary of Kant’s argument, Potter writes: All action to which we are determined by some subjective end . . . is action whose maxim is without ‘moral content’. . . . So the maxim of action from duty must be a maxim which is determined by no such end. . . . The only other thing which could determine us to action would be some ‘formal’ principle, i.e. a principle containing no reference to any end. (1998: 40)

As Potter fails to note, there is here a fatal slide from the claim that acts from duty must not be determined by subjective ends, to the claim that such acts must be determined by a principle that does not refer to any end, not even an objectively required end. Schneewind similarly writes: Given Kant’s claim that means–ends necessity is inadequate for morality, it is plain that he must think there is another law of rational willing, and so another kind of ‘ought’ or ‘imperative’. The kind of ‘ought’ that does not depend on the agent’s ends arises from the moral law. . . . [This law,] Kant holds, can only be the form of lawfulness itself, because nothing else is left once all content has been rejected. (1992: 318)

There is here the same unnoticed slide. If some law does not depend on the agent’s ends, it may still have content, requiring more than the mere form of lawfulness. This law may require the agent to pursue some end. Mary Gregor similarly writes:

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[If] principles of reason based on a desire for some end are all conditioned principles, the unconditioned necessity of duty implies that the principle prescribing duty must be a merely formal principle . . . it follows . . . that this principle says nothing at all about our ends. It neither commands nor forbids the adoption of any end, but merely sets a limiting condition on our actions. (1963: 78–9)

These remarks assume that, if some principle does not appeal to our desire for some subjective end, it cannot say anything about our ends, and can neither command nor forbid the adoption of any end. That does not follow. Gregor follows Kant in ignoring the category of objective ends. It may again be suggested that, in making these remarks, I have misinterpreted Kant’s text. When Kant claims that moral principles must be purely formal, he may not mean that these principles cannot have content, or be material, in the sense of requiring us to try to achieve certain ends, or to act in certain ways. He may be making some other point. Consider, for example, these remarks in the Second Critique : Since the matter of a practical law . . . can never be given otherwise than empirically . . . a free will must Wnd a determining ground in the law but independently of the matter of the law. But, besides the matter of the law, nothing further is contained in it than the lawgiving form. (Kant 1788: 29)

Kant here assumes that a practical law has matter, by which he seems to mean what this law tells us to try to achieve. His point may seem to be that, though such a law is, in this sense, ‘material’, our motive in following this law—or the determining ground of our will—should be provided not by this law’s matter, but by the fact that it has the form of a moral law. And this may seem to be Kant’s point when he discusses his unsympathetic philanthropist. When Kant claims that, to act out of duty, we must be moved by a principle’s law-giving form, he may mean only that we must be moved by our belief that our act is a duty. That could be true of Kant’s philanthropist even if this person accepts a principle that has ‘matter’, in the sense of requiring her to promote the happiness of others. This reading is not, I think, correct. But, even if it were correct, Kant’s arguments would not support his view. Kant often claims that, since the will must be determined by law-giving form, the supreme principle of morality must be his Formal Principle, which requires us to act only on maxims that we could will to be universal laws. Such claims would be obviously false if Kant’s phrase ‘law-giving form’ meant only ‘having the form of a moral law.’ Consider, for example, another passage in the Second Critique : The matter of a practical principle is the object of the will. This is either the determining ground of the will or it is not. If it is the determining ground of the

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will, then the rule of the will is subject to an empirical condition (to the relation of the determining representation to the feeling of pleasure or displeasure), and so is not a practical law. Now if we abstract from the law everything material, that is, every object of the will (as its determining ground), all that remains is the mere form of giving universal law. Therefore, either a rational being cannot think of his subjectively practical principles, that is, his maxims, as being at the same time universal laws, or he must assume that their mere form, by which they are Wt for a giving of universal law, of itself and alone makes them practical laws. (ibid. 27)

When Kant refers here to ‘the mere form of giving universal law’, he cannot mean ‘the mere form of a moral law’. His point cannot be that, if principles have the form of a moral law, that alone makes them practical laws. Kant takes this argument to show that, since we must ‘abstract from the law everything material’, his Formal Principle must be the supreme moral law. We ought to act only on maxims that we could will to be universal, because ‘they are Wt for a giving of universal law’.2 In the paragraph just quoted, Kant comes close to seeing that his argument is invalid. The Second Critique was the fastest written of Kant’s major works, and this paragraph shows the speed with which Kant wrote. What Kant calls the ‘matter’ of a principle, or the ‘object of the will’, is the object or aim which this principle tells us to try to achieve. This object would be the will’s ‘determining ground’ if we were moved to act upon this principle by a desire to achieve this object. After saying that this object either is or is not the will’s determining ground, Kant claims that, if we abstract from the law every object of the will, as its determining ground, we are left only with the mere form of giving universal law. That is not so. We may be left with some object of the will which is not the will’s determining ground. One such object might be the happiness of others. We might be moved to try to achieve this object, not because we want to make others happy, but out of duty and a belief that the happiness of others is a categorically required end. We would not then be acting on a principle that was purely formal. So Kant’s argument again fails to support his view. Consider next Kant’s summary of his view: The sole principle of morality consists in independence from all matter of the law (i.e. a desired object) and in the accompanying determination of choice by the mere form of giving universal law which a maxim must be capable of having. (ibid. 33) 2 Thus, after writing that only ‘lawgiving form . . . can constitute a determining ground of the will’, and commenting on that claim, Kant concludes that ‘the fundamental law’ is: ‘So act that the maxim of your will could always hold at the same time as a principle in a giving of universal law’ (1788: 29–30).

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Kant here forgets the diVerence between his two uses of the phrase ‘the matter of the law’. On Kant’s narrower use, this ‘matter’ is a desired object. On Kant’s wider use, a law’s ‘matter’ is whatever this law tells us to try to achieve, which might be some categorically required end. Kant assumes that, if some moral principle does not have ‘matter’ in his narrower sense, it cannot have ‘matter’ in his wider sense. This leads him to conclude that, if some moral principle does not appeal to a desired object, it must require the mere form of giving universal law. That is not true. As before, Kant overlooks all substantive categorical principles. In his other writings, Kant gives some other arguments for his Formula of Universal Law. These arguments, I believe, do not succeed. But Kant’s Formula is in itself plausible. And, when revised in certain ways, this formula can provide what seems to me one of the two best versions of contractualism.3

REFERENCES Gregor, M. (1963). Laws of Freedom. Oxford: Oxford University Press. Kant, I. (1788 [1999]). The Critique of Practical Reason, in A. Wood (ed.), M. Gregor (trans.), Practical Philosophy, Works of Immanuel Kant. Cambridge: Cambridge University Press. —— (1793 [1996]). Religion within the Boundaries of Mere Reason, (A. Wood (ed.), G. di Giovanni (trans), Religion and Rational Theology, Works of Immanuel Kant. Cambridge: Cambridge University Press. —— (1797 [1999]). Groundwork of the Metaphysics of Morals, in A. Wood (ed.), M. Gregor (trans.), Practical Philosophy, Works of Immanuel Kant. Cambridge: Cambridge University Press. Potter, N. (1998). ‘The Argument of Kant’s Groundwork’, in P. Guyer (ed.), Kant’s Groundwork of the Metaphysics of Ethics: Critical Essays. Lanham, MD: Rowman & LittleWeld. Schneewind, J. (1992). ‘Autonomy, Obligation, and Virtue: An Overview of Kant’s Moral Philosophy’, in P. Guyer (ed.), The Cambridge Companion to Kant. Cambridge: Cambridge University Press.

3 I defend this claim in Climbing the Mountain (in preparation), S. ScheZer (ed.), Oxford: Oxford University Press. This paper is an extract from a much longer draft, ‘Kant’s Arguments and Assumptions’. As such an extract, this paper cannot avoid being what Wagnerians call ‘a bleeding chunk’.

4 Justice, Responsibility, and the Demands of Equality T. M. Scanlon

INTRODUCTION Jerry Cohen’s important and trenchantly argued papers on equality and equal access to advantage have played a major role in shaping contemporary debates about equality and justice (Cohen 1989, 1993).1 A central issue in his disagreements with John Rawls and Ronald Dworkin is the question of when individuals are properly held responsible for their choices, tastes, and preferences. In this chapter I will examine the ideas of responsibility that Wgure in the debate between Cohen and Rawls. My aim will be to determine how far Cohen disagrees with Rawls and what it is that they disagree about. Three questions can be at issue in this debate: 1. When and why does justice demand some form of equality? 2. What kind of equality does justice require in various situations? 3. How can the demands of equality be modiWed by the choices individuals have made, or the opportunities to choose that they have had? The third question can be subsumed within an answer to the second, and to a degree this is what happens in Cohen’s discussion: what individuals are entitled to, in his view, is equal access to advantage. For purposes of analysis, however, it will be helpful to distinguish the two questions. Two theories might oVer the same answer to the third question while disagreeing about the second. Or they might agree about what people should have access to equal amounts of, but disagree about what constitutes such access—about the kind of opportunities for choice that can render unequal shares legitimate. 1 I will be discussing mainly these two articles, referring occasionally to Cohen’s more recent writings on these topics, in particular to Cohen (2004).

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It is particularly helpful to keep in mind the independence of these three questions when one is arguing from examples. Faced with a case in which it seems just for people to have unequal shares of some good X, one can explain this by appealing to one’s answer to any of the three questions. One can say that this is not a case in which justice requires equality, or that what is required is not equality of X, or that the particular inequality in question is permitted because it results from a choice by the individual who has less. In regard to the Wrst question, Cohen is not, in these articles, a strict egalitarian. He is making what he calls only a ‘weak equalisandum claim’ about what is to be equalized in so far as equalization is defensible (Cohen 1989: 908). And he allows that equality may have to be balanced against other values (even, it seems, in determining what is just). In regard to the second question (taken as distinct from the third), Cohen is not a welfarist—he does not hold that welfare, understood either as happiness or as preference satisfaction, is the thing that should (leaving choice aside) be equalized to the extent that anything should be equalized. Advantage, as he understands it, is ‘a heterogeneous collection of desirable states of the person reducible neither to his resources bundle nor to his welfare level’ (Cohen 1993: 28). And he says that ‘in deciding both what qualiWes as an advantage and the relative sizes of advantages, it is necessary to engage in objective assessment’ rather than merely to take the answer given by the preferences of the individual in question (Cohen 1989: 935). Cohen takes equality of welfare as the starting point of his inquiry in both of these articles, but he is not wedded to this position. Faced with some cases in which justice does not seem to require equal levels of preference satisfaction, he responds in the second way described above, by moving away from pure welfarism and invoking a constraint on the preferences whose satisfaction is relevant to equality. Thus, for example, he (ibid. 912) agrees with Rawls’s observation that ‘oVensive tastes’, such as a preference that other people should suVer, have no claim to satisfaction. Cohen takes a diVerent line, however, in response to examples of ‘expensive tastes’ raised by Rawls and Dworkin. Rawls invites us to ‘[i]magine two persons, one satisWed with a diet of milk, bread and beans, while the other is distraught without expensive wines and exotic dishes. In short, one has expensive tastes, the other does not’ (1982: 168). Equality of welfare would require that the latter person be given a larger income, or share of resources. Rawls holds that this is mistaken, and that justice is achieved if the two have the same primary social goods. It is then up to them to decide whether to spend their income on luxuries. Given the pluralistic character of Cohen’s notion of ‘advantage’, it would be open to him to take a similar line. He might say that even though primary

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social goods are too restrictive a metric for distributive shares, a proper metric would not go so far as to include the degree to which a person’s taste for luxurious and expensive food is fulWlled. Cohen, however, does not take this line. He says instead that a person who has expensive tastes should be compensated for the expense of satisfying them (or for the welfare loss of their not being satisWed) as long as these tastes ‘are not in some way traceable to the individual’s choices’. The proper response to cases of ‘expensive tastes’, he says (1989: 914), is not to move away from welfare to a more objective metric but to replace welfare with equality of opportunity for welfare.2 There seem to be two reasons for this. The Wrst, and more fundamental, is that, although Cohen’s notion of advantage is not purely welfarist, preference satisfaction and states such as contentment and frustration play a signiWcant role in this notion—certainly more signiWcant than in Rawls’s theory, where they have no role at all. This is an important point of disagreement, which I will return to later. The second is that Cohen is unhappy with the way that Rawls and Dworkin invoke ideas of choice and responsibility, and he wants to explore this issue. I will begin by taking up this question.

RAWLS AND COHEN ON RESPONSIBILITY FOR ONE’S ENDS AND PREFERENCES Cohen quotes Rawls as follows on the subject of expensive tastes. As moral persons citizens have some part in forming and cultivating their Wnal ends and preferences. It is not by itself an objection to the use of primary goods that it does not accommodate those with expensive tastes. One must argue in addition that it is unreasonable, if not unjust, to hold such persons responsible for their preferences and to require them to make out as best they can. But to argue this seems to presuppose that citizens’ preferences are beyond their control as propensities or cravings which simply happen. Citizens seem to be regarded as passive carriers of desires. The use of primary goods . . . relies on a capacity to assume responsibility for our ends. (1982: 168–9)

Cohen has two objections to what Rawls says here. First, he takes Rawls to be arguing that for purposes of answering questions of justice we need not take into account diVerences in the cost or diYculty of satisfying various preferences, because individuals can always avoid these costs by adopting diVerent 2 To be precise, the position he suggests we move to is equality of opportunity for advantage. But in the cases at hand it is opportunity for welfare, in either its hedonistic or preference satisfaction version, that is at issue.

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preferences. Cohen claims that this argument is invalid in many cases, because an individual’s preferences are not always under his or her control. Second, Cohen considers Nozick’s claim that what Rawls assumes here about individuals’ control over their preferences is inconsistent with what he claims elsewhere about their lack of control over their dispositions to exert eVort and strive to get ahead. I will consider each of these objections in turn. As regards the question of control, it should be noted that the class of ‘tastes and preferences’ that are under consideration in this discussion is extremely diverse. In the Wrst passage I quoted, Rawls considers a matter of taste in the most literal sense—tendency to derive pleasure from certain foods. But he goes on to speak of the control that agents have over their ‘ends’ or their ‘Wnal ends’. These cases diVer in important respects, in particular in the kind of control that agents may be thought to have. Consider the diVerences between the following: 1. what a person Wnds pleasant or unpleasant; 2. what a person sees as a reason for acting, thinking, or feeling a certain way: and 3. the aims a person adopts and the actions he or she takes. States of the kind in group 1, such as tastes in food, are not chosen in any straightforward sense. They are, to a degree, subject to modiWcation over time. One can acquire a taste for something one does not like at Wrst, and become accustomed to doing without other things that one has enjoyed and craved. Such changes often take place without our intending them, or even being aware that they are occurring. We can sometimes also bring them about by choosing to undergo a process that has this result. Group 2 includes both what seems to a person, spontaneously and unreXectively, to be a reason, and also what he or she judges on reXection to be one. Ideally, an agent’s states of these two kinds will not conXict—what seems to a person to be a reason will conform to his or her reXective judgement. However, this does not always happen. For example, the fact that something would cause my rival acute discomfort can strike me as a reason to do it even though I Wrmly judge this to be a groundless, vindictive thought. In cases of this kind it is the unreXective response that strikes us as ‘recalcitrant’, because it is unresponsive to the agent’s judgement. But none of the states in this group—neither the spontaneous nor the reXective ones— are directly subject to an agent’s will. It is up to an agent to judge what is or is not a reason, but not up to him or her to choose when this is so. Nonetheless, since all these states either reXect an agent’s judgement or should be responsive to it, they are all things that the agent is ‘responsible for’ in one sense of that phrase: they are things he or she can be asked to defend and to modify in

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the light of criticism. In addition, what an agent sees, or does not see, as reasons is a central component of his or her moral character. So the states in group 2 are ones that an agent can be ‘held responsible for’ in a further sense: they are characteristics on the basis of which he or she is subject to moral appraisal and moral criticism. The sense of responsibility at issue here is what I call responsibility as attributability. Although what seems to one to be a reason is not directly subject to one’s choice or will, such states are, like those in group 1, subject to a degree of modiWcation by training and habituation. In addition to whatever psychological limits there may be to self-manipulation of this kind, however, it is also subject to normative constraints in this case. Because what seems to one to be a reason should, ideally, agree with what one judges to be a reason, there is something deviant about undertaking to modify these states except to bring them into line with one’s judgement. This is a further sense in which these attitudes are not ‘up to us’ even though we are responsible (answerable) for them in the two ways I have mentioned. These states are an appropriate basis for moral appraisal simply because of the kind of states they are, not because they are under one’s control.3 In contrast to those in groups 1 and 2, items in group 3 (ends a person has adopted and actions he or she has decided to take) are objects of choice. We do not always choose the ends or actions that we judge to be supported by the best reasons, but in so far as we choose these things for reasons at all, the range of our choices is limited by facts about what strikes us as reasons—that is, by factors of the kinds in groups 1 and 2 that are not themselves chosen (except perhaps in those limited cases of self-manipulation). Nonetheless, there sometimes remains a range of ends or courses of action each of which there is suYcient reason to adopt. (Perhaps these reasons are even equally good.) In such cases we may properly be said to choose among these eligible options. In addition to being responsible (answerable, and liable to criticism) for our ends in the senses so far discussed, it is also true that we could have avoided having them, by choosing diVerently. But this is so only in this special class of cases. The term ‘preference’ is sometimes used so broadly as to cover items in all the three groups I have described: matters of taste, desires that involve seeing things as reasons (such as a desire for revenge), and ends that we have chosen. These things vary widely both in their objective importance and in the kinds of control we have over them. Cohen recognizes this diversity, but his examples tend to be concentrated near the ‘taste’ end of this continuum. He considers, for example, someone who hates eggs, which are common, but 3 The claims made in this and the preceding paragraphs are explained and defended more fully in Scanlon (1998: ch. 6; 2002).

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loves Wsh, which is rarer and more expensive. He (2004: 14–16) also discusses an example of Dworkin’s in which someone cannot stand the taste of ordinary water, and therefore wants bottled water, which is more expensive. In each case, Cohen holds that these people should be compensated so that they will not suVer loss of welfare. Rawls might say here (or at least it would be reasonable for him to say) that, quite apart from the question of whether these tastes have been acquired voluntarily or could have been avoided, compensation is not in order because individuals’ relative levels of gustatory enjoyment are not part of the standard by which social institutions should be judged. Similarly, in response to Cohen’s example of ‘grumpy’ people who get less enjoyment out of a given level of resources than others do, it could be said, correctly in my view, that making people cheerful is not one of the state’s jobs, and that the grumpy are entitled to special help only if they suVer from some medical condition. One response here would be for Cohen to agree that it is not the role of the state to promote equality in these experiential qualities, but then to say that his concern is not with what the role of the state should be, but with a more speciWc idea of what equality requires, which is only one of the many factors that go into determining what the state should do.4 However, even if it were agreed that what we are concerned with is the assessment of political institutions, and that equality in hedonic states is not the responsibility of such institutions, this would not solve the problem Cohen raises for Rawls, which can be restated as a problem of expensive ends. One aspect that basic institutions surely should be judged on is their contribution to individuals’ ability to pursue their ends. Some ends are much more expensive (require much more in the way of resources) than others. So why does equality not demand that those with expensive ends be given a larger share of resources than others receive, so that they can attain a similar level of success in fulWlling their life projects? It seems clear to me that equality does not require this. But how can this claim be defended? One thing that might be said is that, within the limits mentioned above, individuals have a choice about which ends to pursue. So they cannot complain if the ends they choose are more expensive than those of others. As Cohen correctly notes, however, it is not suYcient simply to appeal to the fact that individuals have a choice about which ends to adopt. One must also defend the more complicated proposition that individuals can reasonably be asked to accept the consequences of these choices. This depends on many factors, including the severity of these consequences, the acceptability of the alternatives that the agent could have chosen, the meaning and importance 4 I will return to this question in the Wnal section of this chapter.

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for an agent of being able to make choices of this kind for himself or herself, the conditions under which the choice was made, and the cost to others of providing individuals with better conditions for choosing or protecting agents against the adverse consequences of the choices they make. As Cohen writes, [T]he mere fact that you made a choice, and could have chosen otherwise (for example, not to buy that steak), no more shows that subsidy is out of order than does the mere fact that you could have chosen not to buy that wheelchair shows that subsidy is out of order. In each case, facts in the background to the choice, facts about degrees of control, and about the cost of alternatives, aVect the proper allocation of responsibility for the consequences of the choice. (2004: 42)

I would put this point by saying that the claim that the state is not responsible for the extra expense of realizing a person’s ends is a judgement of substantive responsibility. This is distinct from the sense of responsibility I discussed above (responsibility as attributability), in which to claim that a person is responsible for a certain action is merely to claim that this action is attributable to him in the sense required for it to be a basis of moral assessment. The conclusion that a person is responsible, in this sense, for what he or she did leaves open what kind of appraisal, if any, is therefore in order—whether what the person did was praiseworthy, blameworthy, or morally neutral. In particular, the conclusion that a person is responsible, in this sense, for some action, does not make any claim about the duties or obligations of that person or others. By contrast, judgements of substantive responsibility are explicitly claims of this latter sort. For example, when we say that it is the responsibility of parents to see to it that their six-year-old children attend school, we mean that it is the parents who have a duty to do this, rather than the children themselves, or some third party. And when we say that the cost of servicing and maintaining a car is the responsibility of the person who leases it, we mean that this person, rather than the actual owner of the car, is obligated to provide that maintenance. Such a judgement leaves open whether, if a person fails to do what he or she is substantively responsible for doing, he or she is responsible for this failure in the Wrst sense of ‘responsible’ that I distinguished. If, for example, parents fail to get their child to school because they are in a coma, they are not responsible (open to moral criticism) for this failure even though it remains true that getting the child to school was their (substantive) responsibility. The fact that an action resulted from a person’s conscious choice may be suYcient to establish that that action can be attributed to him or her in the sense that is presupposed by moral appraisal. But a judgement of substantive responsibility depends on more than this. To justify the claim that a person

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who has done A has a certain obligation, or that someone who has done A has to bear the consequences (and that others are not obligated to share this burden), it is not enough to point out that this person chose to do A. One must also consider the costs that this assignment of responsibility imposes on a person who does A, the alternatives to A that are available to a person in this situation, and the implications, for this person and others, of assigning responsibility in some other way. Whether individuals are responsible for their ends in a sense that they have no claim to special aid if these ends are particularly expensive to pursue is thus a question of substantive responsibility. The point being made earlier was just that this question cannot be answered by merely appealing to the fact that agents are responsible for their ends in the sense of being properly asked to defend them or properly subject to criticism (moral or other) for them, or even by merely appealing to the fact (when it is a fact) that agents choose their ends. Further argument is required to establish a claim of substantive responsibility. Cohen appears to be making this same point when he writes: [I]t is false, on my view, that a person’s (unrepudiated) tastes are not the state’s business because it is reasonable to expect her to take responsibility for them, no matter how she came to have them, and no matter what she can do about them now. Instead, she must perforce pick up the tab for them because they cannot reasonably be the state’s business. (ibid. 36)

What I take Cohen to be saying here is that the claim that individuals are substantively responsible for (i.e. not entitled to compensation for) their tastes cannot be derived from a claim that they are responsible for their tastes in some prior sense of responsibility (such as responsibility as attributability). I agree that such an argument is invalid. But I do not believe that Rawls is oVering an argument of this kind when he says that the conception of justice he proposes includes what we may call a social division of responsibility: society, the citizens as a collective body, accepts responsibility for maintaining equal basic liberties and fair equality of opportunity, and for providing a fair share of other primary social goods for everyone within this framework, while citizens (as individuals) and associations accept the responsibility for revising and adjusting their ends and aspirations in view of the all-purpose means they can expect. (1982: 170)

In the terms I have been using, what Rawls is saying here is that his conception of justice includes a certain judgement of substantive responsibility. This judgement, which assigns individuals responsibility for their own ends, ‘is plausible only on certain assumptions’, the Wrst of which is that individuals can regulate and revise their ends (ibid. 169). This is not an assumption that

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individuals are responsible for their ends in some prior sense, from which the propriety of the social division of responsibility that they propose can be derived. It is merely an assumption about the capacities that individuals have. Moreover, Rawls says that ‘[b]y itself this assumption does not suYce’. The social division of responsibility that the use of primary social goods entails must be shown to be part of a workable and defensible conception of justice, and this involves taking into account other factors of the kind that Cohen and I have listed. So there is no disagreement between Cohen and Rawls about the kind of argument that needs to be oVered for the relevant claims of responsibility. They do, however, appear to have substantive disagreements about which claims of this kind are correct. Rawls holds that individuals are responsible for (need not be compensated for) expensive tastes, whether or not these are chosen, and for expensive ends, which are under their control only to a degree. Cohen seems to disagree with these claims, or at least with the Wrst of them. One advantage of the kind of argument that Cohen rightly rejects is that it might oVer a way of settling this disagreement. If we could establish, on some independent ground, that individuals are responsible for their preferences (perhaps simply because they have chosen them), using an argument of this form, we could conclude that justice does not require the state to compensate those with expensive tastes. But if such arguments are not valid, because judgements of substantive responsibility of the kind that form their conclusion depend on many factors of which choice or control is only one, it is more diYcult to see how one can construct a decisive and nonquestion-begging argument in support of a conclusion about the proper social division of responsibility. This is an extensive topic, but I will survey some of the possibilities. One might appeal to practical considerations, such as the diYculty and intrusiveness of having governments determine individuals’ levels of satisfaction, or to the (potentially unlimited?) costs of providing for the pursuit of ends that require expensive equipment, travel, and other opportunities. Given these considerations, and the facts about choice mentioned above, would not our obligations to each other, and the demands of equality, be best fulWlled by providing each individual with the same set of goods and opportunities to use in pursuing whatever ends he or she may choose? Rawls (ibid.) seems to appeal to such considerations when he speaks of the need to Wnd ‘workable criteria for interpersonal comparisons’. And Cohen seems to endorse this kind of argument when he writes: The right argument says: it is extremely diYcult and/or unacceptably intrusive to determine whether a person’s tastes are expensive and how much she is responsible for

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them; therefore the state cannot and/or should not seek to make determinations of that sort; therefore people must (on the whole) take responsibility for the costs of their tastes. (2004: 46)

So there is general agreement on the relevance of this line of argument, but it remains somewhat inclusive. How much practical diYculty or ‘intrusiveness’ is enough to justify the conclusion that compensation for expensive tastes is ‘not the state’s business’? An alternative would be to argue from examples using the method of reXective equilibrium. Since there is disagreement about the examples, an important part of this strategy, on Rawls’s side, would consist in trying to undermine the force of examples that are cited in support of the claim that people whose ends are expensive should receive compensation. Three examples that Cohen cites are: (a) a person who Wnds the taste of ordinary water ‘gagging’; (b) a person who cannot stand eggs but lives in a place where Wsh and eggs are the only available nutrients and Wsh is much more expensive; and (c) a person who cannot perform ordinary physical movements without pain. In each case, Cohen believes that equality requires that people be ‘compensated’ for these special diYculties. It seems to me that special treatment may be called for in some of these cases. The question is why this is so, and what general conclusion is to be drawn. Although these cases literally involve tastes, or receptivity to pleasant and unpleasant feelings, it is somewhat misleading to describe them as cases of ‘expensive tastes’. The people in these examples do not have unusual tastes. They want the same things that everyone wants: nourishment, hydration, and the ability to move freely. The normative force of the examples derives from the objective importance of these interests, rather than from the value of satisfying special tastes or preferences. The problem these people have is that they cannot pursue these quite ordinary aims without pain, or gagging, or feelings of disgust. What they need is help in overcoming these obstacles. This help might be provided by giving them water or food that they like better, or money to buy it. But it could just as well be given by providing access to medical treatment. ‘Compensation’ is therefore a somewhat misleading term for what is required, since the point is to enable the people to have these essential things without diYculty, not simply to raise their level of welfare (understood hedonistically or in terms of preference satisfaction). Understood in this way, these cases are analogous to those of individuals who live far from the available supply of drinkable water, or who cannot get it themselves because of chronic weakness. What these people are entitled to is transportation, or special water supplies, not compensation. These examples may show that equality is not always attained by giving people the same shares of primary social goods, and therefore that primary

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social goods are too narrow a standard. They may thus support some form of what Cohen (1993: 18V.) calls ‘midfare’, rather than primary social goods, as a basis for making judgements of justice. But they do not provide intuitive support for the idea that people who have expensive tastes should receive compensation to raise their level of hedonic tone or preference satisfaction. At least the Wrst two examples could be understood in a somewhat diVerent way, as cases in which what is at issue is simply gustatory pleasure. (We might alter them in order to support this interpretation, for example, by supposing that, rather than having diYculty gagging down eggs, the person just Wnds them boring.) Understood in this way the examples would, if accepted, support the idea of compensation for expensive tastes, but would then seem to me to lose their force. They retain their force while leading to the desired conclusion only by exploiting an ambiguity between these two readings. Another example that Cohen discusses involves a person who enjoys photography but not Wshing, and Wnds that, because Wshing is so much more popular, photography equipment is vastly more expensive. He believes that compensation is called for to cover this extra expense. This case involves what is properly called an expensive end. But I have to say that I do not Wnd the case for compensation compelling. What we have here are two versions of the same interest: having an agreeable leisure activity. As long as each person is provided with the same resources (e.g. money and time) to pursue this interest, it seems to me that the demands of equality are fulWlled. Things would be diVerent if support for leisure pursuits were provided in kind, and the government provided only Wshing poles (or golf clubs). This would be objectionably unequal treatment. But as long as the rest of us are making the same sacriWce to provide the same malleable resources to others, the fact that these go farther to support some pursuits than they do to support others does not make them objectionably unequal.

ARE RAWL S’S CLAIMS AB OUT R ESPONSIBILITY INCONSISTENT? Cohen observes that the claim Rawls makes about individuals’ responsibility for their tastes and their Wnal ends seems inconsistent with what he says about holding individuals responsible for their willingness to exert themselves in order to develop their talents and succeed in a competitive society. Cohen writes:

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The problem is that the picture of the individual as responsibly guiding his own taste formation is hard to reconcile with claims Rawls elsewhere uses in a fundamental way to support his egalitarianism. I have in mind the skepticism which he expresses about extra reward for extra eVort: ‘The eVort a person is willing to make is inXuenced by his natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no way to discount for their greater good fortune. The idea of rewarding desert is impracticable.’ (1989: 914)5

As Cohen notes, Robert Nozick levelled a similar charge of inconsistency against Rawls. Referring to the passage from Rawls quoted by Cohen, Nozick says: Denigrating a person’s autonomy and prime responsibility for his actions is a risky line to take for a theory that otherwise wishes to buttress the dignity and self-respect of autonomous beings. . . . One doubts that the unexalted picture of human beings Rawls’ theory presupposes and rests upon can be made to Wt together with the view of human dignity it is designed to lead to and embody. (1974: 214)

Nozick’s remark has considerable rhetorical force. But in referring to ‘the dignity and respect of autonomous beings’, he is painting with a rather broad brush. Rawls’s theory seeks to ‘buttress’ autonomy mainly by arguing for the importance of the basic liberties and other background institutions that provide the conditions necessary for individuals to form and pursue their own conceptions of the good. Urging the importance of maintaining these conditions is scarcely inconsistent with recognizing that there are other conditions under which individuals are less able to make meaningful choices.6 Cohen’s criticism of Rawls on this point is much more carefully drawn than Nozick’s. What he takes Rawls’s claims about eVort to be in tension with is not a general ideal of dignity and autonomy but rather Rawls’s speciWc claims about responsibility for one’s tastes. He points out that Nozick overstates the claim Rawls is making in the passage about desert to which Cohen and Nozick both refer. In that passage, Rawls is not stating that individuals can claim no credit for their decisions about whether to exert themselves to develop their 5 The passage quoted is from Rawls (1971: 312; rev. edn., 274). 6 Nozick is here relying on a distinctively libertarian view according to which respect for individual autonomy (or ‘liberty’) requires two things: (a) not interfering with individual’s choices in certain speciWed ways (by force or fraud); and (b) treating all choices that individuals make in the absence of these interferences as morally binding. Given this view, it may appear that Rawls is claiming to be a defender of autonomy while at some points failing to respect it, by violating (b). But this is not inconsistency on Rawls’s part, since he rejects this libertarian premise. One of his main points is that individual autonomy is respected by providing conditions under which it can be meaningfully exercised, not by holding individuals responsible for the choices they make under unfavourable conditions.

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talents because these decisions are inXuenced by their abilities and their family circumstances. Rather, Cohen says, Rawls’s claim is only that, to the degree that individuals’ choices are due to these factors, they do not constitute moral desert, and that it is impracticable to determine the degree to which this is so. But, Cohen asks, if individuals’ responsibility for exerting themselves is in this way a matter of degree, why isn’t their responsibility for the tastes they develop also a matter of degree, depending on the degree to which this is a matter of choice and the degree to which it reXects outside constraints and inXuences? However, even this more carefully drawn charge of inconsistency misses the mark. Both Cohen and Nozick seem to assume that, in the passage about desert and eVort that they both quote, Rawls is arguing against the idea of rewarding people in proportion to the eVort they put forth. Elsewhere, Rawls (1971) does argue against this idea (although he also oVers a qualiWed defence), and I will return to this argument shortly. But what Rawls is arguing against in the passage quoted by Cohen and Nozick is a diVerent idea—that economic reward should be proportional to desert, or moral worth. This argument is part of Rawls’s larger strategy of showing that his two principles of justice Wt with our considered judgements about justice in reXective equilibrium. Although these principles are supported by the argument from the original position, if they were in direct conXict with our considered judgements about justice, we would need to consider whether to modify or abandon these judgements or to modify or abandon the principles and the original position construction that yields them. Large parts of Rawls’s A Theory of Justice are thus devoted to the task of showing that various conXicts of this kind should be resolved in favour of the two principles of justice—that is, to arguing that various judgements that have some intuitive appeal but conXict with Rawls’s two principles of justice do not stand the test of reXection and should be modiWed or abandoned. In §12, for example, Rawls considers the idea that individuals are entitled to whatever they would receive in a free market (a ‘system of natural liberty’), and argues that this should not, on reXection, be counted as a considered judgement. In §47 Rawls considers various ‘common-sense precepts of justice’ such as the ideas that justice requires reward in accord with contribution (marginal productivity), or in proportion to eVort, or in proportion to need. These familiar precepts are not fundamental principles of justice in Rawls’s view, but in §47 he tries to account for them by explaining how they can properly play a role in our thinking about justice at a more derivative level, as responses to questions about distribution that arise under special, but not uncommon, conditions within a just society. So, for example, the idea of reward according to eVort has a role in a society governed by Rawls’s diVer-

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ence principle in the form of the argument that extra compensation should be oVered to defray costs of training and to compensate people for performing particularly onerous and unpleasant tasks. In §48 Rawls takes a Wrmer line with regard to the idea that economic reward should be distributed according to moral desert. This idea, he argues in the last part of this section, does not stand up under reXection, and should be rejected. Earlier in §48, however, he points out that none of the commonsense precepts of justice discussed in §47 would require economic reward to track moral desert. His aim here is to show how the idea of reward according to desert diVers from these common-sense precepts, thus depriving the idea of the support it might derive from them. The common-sense precept that might seem to come closest to requiring reward in proportion to moral worth, Rawls says, is the precept of distribution according to eVort. It is in this context that we encounter the passage Cohen and Nozick discuss, in which Rawls says: ‘[T]he eVort a person is willing to make is inXuenced by his natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no way to discount for their greater good fortune’ (ibid. 312; rev. edn., 274). Therefore, he concludes, ‘the idea of rewarding desert is impracticable’ (ibid.). Rawls’s point here is not that reward should not be proportioned to eVort because diVerences in the degree of eVort that people put forth is due in part to diVerences in ability and in family circumstances, but rather that because eVort is inXuenced by these factors, diVerences in eVort do not correspond to diVerences in moral worth. So in proportioning reward to eVort we would not be rewarding moral worth, and it would be ‘impracticable’ to design institutions that would identify and reward those diVerences in eVort that do reXect diVerences in moral worth. I do not see any inconsistency between what Rawls says in this passage and what he says about the capacity to modify one’s ends. Earlier in the book, however, Rawls makes another remark about eVort that may seem to be in tension with the idea of responsibility for one’s ends. This remark occurs in §12 in the context of an argument against what Rawls calls the liberal conception of justice. This conception holds that a distribution is just if it is produced by a free market under conditions of ‘fair equality of opportunity’. Fair equality of opportunity, as Rawls deWnes it, is the strong requirement that ‘those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system, that is, irrespective of the income class into which they are born’ (ibid. 73; rev. edn., 63). Rawls oVers two objections to the liberal conception, the second of which is that, given the background of an unregulated free market, fair equality of

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opportunity ‘can be only imperfectly carried out, at least as long as the institution of the family exists’, because The extent to which natural capacities develop and reach fruition is aVected by all kinds of social conditions and class attitudes. Even the willingness to make an eVort, to try, and so to be deserving in the ordinary sense is itself dependent upon happy family and social circumstances. It is impossible in practice to secure equal chances of achievement and culture for those similarly endowed, and therefore we may want to adopt a principle which recognizes this fact and also mitigates the arbitrary eVects of the natural lottery. (ibid. 74; rev. edn., 64)

The general point that Rawls is making here is that the liberal conception purports to combine elements that are in fact incompatible with one another. Fair equality of opportunity cannot be achieved simply by adding onto a market system something like a legal requirement of non-discrimination, because the inequality in family wealth and income that an unregulated market will produce guarantees inequality in the opportunity to develop one’s talents. The requirement of fair equality of opportunity speciWes that individuals with (a) the same level of talent and ability, and (b) the same willingness to use these should have the same chances of success whatever the income class into which they are born. These two clauses correspond to two justiWcations that might be oVered to an individual who complains about having a smaller share of income of wealth than some others do. One response to such a person, corresponding to clause (a), is that the others have been given more because they have a talent or ability which he or she lacks. (If this is to be a good response, the relevant ‘talent or ability’ must be one for which there is a good justiWcation for rewarding with special opportunities or beneWts. I will take this to be understood.) A second response, corresponding to clause (b), is that although the individual in question has the same talent or ability, he or she has not been willing to develop and use it in the way that justiWes reward. The force of this response is: ‘You can’t complain, because you were put in as good a position as you could ask for to develop talents that would have qualiWed for reward and you failed to do so.’ But, Rawls argues, whether people have been put in such a position depends on whether they have been provided with the ‘happy family and social circumstances’ that are required in order to stimulate the development of talent in early childhood. His remark about being ‘deserving in the ordinary sense’ can be understood in this same way. If an individual’s family and social circumstances were very unfavourable, we cannot say that his or her failure to develop talents shows the person to be undeserving of reward ‘in the ordinary sense’. That is to say, it does not show that the person

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failed to take advantage of a fair opportunity to succeed. Moral worth is not at issue here. This argument is quite consistent with what Rawls says about responsibility for one’s ends. Both arguments involve the idea that if an outcome results from a choice that an individual has made under conditions for making that choice that are as good as he or she could ask for, the individual cannot complain about that outcome—it is ‘his or her responsibility’. Everything depends on the conditions mentioned in the crucial italicized phrase. What Rawls is saying in the passage I have been discussing is that under the ‘liberal conception’ there is no assurance that the conditions under which individuals decide whether to exert themselves, or to develop their talents, will be good enough to give these decisions legitimating force. What he is saying in his defence of primary social goods is that in a well-ordered society governed by his two principles of justice, these conditions will be good enough, and that individuals can therefore reasonably be asked to accept responsibility for the ends they adopt. One can dispute this latter claim, but it is not inconsistent with the former one.

W H E R E D O C O H E N A N D R AWLS D I S AG R E E ? I have said several times that Cohen and Rawls appear to disagree about whether people should be compensated if their tastes are particularly diYcult to satisfy. They certainly disagree insofar as they are talking about the same thing. There is, however, some reason to think that they are not always talking about the same thing. This makes it more diYcult than one might have expected to be clear about the exact nature of their disagreement. Rawls proposes the notion of primary social goods as what I will call a ‘metric’: a measure of distributive shares for use within a conception of justice. The role of a conception of justice as Rawls understands it is to serve as a shared standard that the members of a society can use to assess the basic institutions of their society and to adjudicate claims that individuals make about the way they should be treated by those institutions. A metric is one component of such a shared standard: a workable basis for comparing distributive shares. To claim that primary social goods, or any other measure, is the appropriate metric for a conception of justice is therefore not necessarily to defend it as a conception of well-being.7 The choice of a metric depends on claims about 7 As Rawls (1982: 169V.) makes clear.

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the proper role of the state (of ‘basic institutions’) and about what can serve as a workable public standard for comparing the circumstances of diVerent individuals. Claims about individual well-being depend on neither of these things. The pleasure that a person gets from eating and the enjoyment he or she derives from leisure activities are among the components of that person’s well-being. But it is quite coherent to accept that this is so while claiming that the proper metric for purposes of justice should ignore these things, because these elements of well-being are not directly the concern of the state, and perhaps also because these pleasures are so diYcult to assess and compare that they could not form part of a workable public standard. Consider now the following remark by Cohen: A word about what will be meant by the sentence-form ‘x represents an injustice’ here. It will not mean ‘x represents an injustice that ought to be rectiWed by the state’. (No one should in any case think that that’s what ‘x represents an injustice’ ordinarily means: the words ‘that ought to be rectiWed by the state’ surely add meaning to the phrase that they expand.) It will mean, more elementarily, that the world is less than fully just by virtue of the presence of x in it. So, to be as clear as possible, if, in the sequel, I say such things as ‘compensation is required by egalitarian justice’, I mean: for there to be egalitarian justice, there must be compensation; and not: there must (unconditionally) be compensation, because of the (unoverridable and always implementable) requirements of egalitarian distributive justice. (2004: 5)

The Wrst four sentences of this passage seem to suggest that ‘egalitarian justice’ as Cohen understands it is concerned with how the world should be rather than what social institutions should be like. If this is correct, it signiWcantly reduces the disagreement between him and Rawls, for whom the question of justice is a question about the basic institutions of society. If the intuitive judgements about when compensation is due that Cohen’s examples are meant to elicit are not judgements about when a just state should pay compensation, it is not clear that they are relevant to the question that Rawls is addressing. The Wnal sentence of the passage, however, suggests a diVerent interpretation. On this reading, egalitarian justice, as Cohen understands it, is about what a just state should do, other things being equal. But, since other things than egalitarian justice go into determining what a state (even a just one?) should do, it does not follow from the fact that egalitarian justice demands compensation in a given kind of case that a state ought to provide it. On this interpretation, both Rawls and Cohen are talking about the state, but the metrics they are proposing are intended for diVerent uses. Primary social goods are intended by Rawls to be used in principles that describe what justice requires institutions to be like, all things considered. The equalisandum that

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Cohen is looking for, however, is only intended for use in answering the more restricted question of what egalitarian justice requires. I imagine that Cohen also disagrees with Rawls about some all-thingsconsidered claims—that he believes that a just state should actually provide compensation in some cases in which Rawls believes it is not required. But the primary focus of his argument is on the narrower question of what egalitarian justice requires. This makes it somewhat diYcult to assess the force of examples in this argument, since in interpreting them one must ask what kind of judgement they are meant to support: one concerning Rawls’s idea of justice as the very inclusive ‘Wrst virtue of social institutions’, or one dealing only with Cohen’s narrower, and to my mind at least, more elusive idea of what egalitarian justice requires. To summarize, Rawls and Cohen agree about the kind of case that needs to be made to support the conclusion that individuals are appropriately held responsible for certain choices, ends, or preferences. In this respect there is more agreement between them than might at Wrst appear. They may, of course, disagree in particular cases about whether an adequate case of this kind can be made. But it is sometimes diYcult to determine how far they disagree because they are addressing slightly diVerent questions, Rawls being concerned with the overall justice of social institutions, Cohen with an idea of egalitarian justice, which is not the only consideration bearing on what the state should do.

REFERENCES Cohen, G. A. (1989). ‘On the Currency of Egalitarian Justice’, Ethics, 99. —— (1993). ‘Equality of What?’, in M. Nussbaum and A. Sen (eds.), The Quality of Life. Oxford: Oxford University Press. —— (2004). ‘Expensive Taste Rides Again’, in J. Burley (ed.), Dworkin and His Critics. Oxford: Blackwell. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press. —— (1982). ‘Social Unity and Primary Goods’, in A. Sen and B. Williams (eds.), Utilitarianism and Beyond. Cambridge: Cambridge University Press. Scanlon, T. M. (1998). What We Owe to Each Other. Cambridge, MA: Harvard University Press. —— (2002). ‘Reasons and Passions’, in S. Buss and L. Overton (eds.), Contours of Agency: Essays on Themes from Harry Frankfurt. Cambridge, MA: MIT Press.

5 Self-Ownership and Conscription Hillel Steiner

In Self-Ownership, Freedom and Equality, Jerry Cohen advances the following statement as being, uncontroversially, a principal implication of the concept of moral self-ownership: [I]f I am the moral owner of myself, and, therefore, of this right arm, then, while others are entitled, because of their self-ownership, to prevent it from hitting them, no one is entitled, without my consent, to press it into their own or anybody else’s service, even when my failure to extend service voluntarily to others would be morally wrong. (1995: 68)

I want to argue that this claim is too sweeping: that there are some servicings of others such that the impressment of my right arm into those servicings, without my consent, is consistent with my moral self-ownership. These servicings are ones of preventing or redressing violations of those others’ moral rights. Such an argument—for the possible compatibility of conscription with selfownership—must strike many as intuitively implausible. While not, perhaps, wishing to endorse Milo Minderbinder’s famous observation, in Catch 22, ‘[f]rankly, I’d like to see government get out of war altogether and leave the whole Weld to private industry’ (Heller 1994: 298), they would certainly balk at the suggestion that even those engaged in prosecuting a just war1 could, consistently, be morally empowered to conscript the services of self-owners for that purpose. While it is perfectly consistent with self-ownership that its bearers voluntarily donate their services to uphold the moral rights of others—and even that they have a moral duty to do so—the idea that those others might have an enforceable right that they do so seems to many to be a bridge too far. If self-ownership rules out anything, one might say, it surely rules out conscription. Before considering why this may not be true, we need to examine the generic problem besetting the very idea of just conscription. Having done so, we shall Several lines of argument advanced in this chapter have beneWted considerably from discussions with Antony DuV, Diane Elson, Carl Knight, William Lucy, Mike Otsuka, Jonathan Quong, Mark Sachs, Christine Sypnowich, Peter Vallentyne, Leif Wenar, and Steve de Wijze. 1 I take a just war to be one waged in behalf of upholding the moral rights of others.

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be better placed to reXect on whether it can cohere with self-ownership. Let us begin by brieXy reviewing some conceptual features of rights and duties.

THE PROBLEM Rights, in the strict sense of Hohfeldian claims, correlatively entail duties.2 One of the properties standardly and distinctively attributed to correlative duties is that they are enforceable: that is, that someone’s use of force to prevent or redress breaches of them is authorized.3 It is this property that is widely presumed to distinguish correlative moral duties from other moral duties and that forms the basis for regarding them, or respecting the rights they entail, as constituting the primary—even exclusive—standard by which legal duties are to be morally appraised.4 For rights and their correlative moral duties are the progeny of principles of justice, whereas non-correlative moral duties are those enjoined by other moral principles, such as charity or decency. The latter do not entail rights and, as Kant suggests, are generally thought to be unsuitable for, or even incapable of, enforcement. Charitable and decent acts have moral value, or indeed can be denominated as charitable and decent only if done voluntarily and not under compulsion, legal or otherwise.5 Let us call these non-correlative duties general moral duties, in order to distinguish them from those moral duties that are enjoined by the requirements speciWcally of justice.6 A salient feature of rights is the fact that any coherent set of rules implying the enforceablity of a duty thereby further implies the existence of not only a Hohfeldian power (or authority) to enforce it but also the liberty—absence of an enforceable duty not—to exercise that power.7 But the existence of the 2 Various objections to Hohfeld’s correlativity thesis are answered in Kramer (1998: 24–49) and Simmonds (1998: 148–52, 158–65). 3 Whether the authorizer must be the claim-holder or can be someone else is a long-standing issue between the rival Will and Interest theories of rights. This chapter’s argument is neutral between the two theories. See Kramer, Simmonds, and Steiner (1998) for a discussion. 4 Inasmuch as what is held to distinguish legal duties from other social duties is their enforcement or, more precisely, the dominance of their permissible enforcement over that of other social duties, in circumstances where they are in mutual conXict. 5 Thus Kant distinguishes duties of justice from other moral duties on the basis that the latter pertain only to the content of the will—to what is willed or intended in acting—whereas the former pertain solely to the relation between persons’ wills in so far as their actions (regardless of what they will) aVect the distribution of external freedom between them (cf. Kant 1991: 45ff.). 6 That is, duties of justice form a subset of all moral duties. 7 The presence of such an enforceable duty (not to enforce) would imply a Hohfeldian disability in its bearer, that is, his or her lack of that enforcement power. The reasons why powers exist only in conjunction with the liberties to exercise them are presented in Steiner (1994: 60, 68–9; 1998: 242–3).

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liberty to do an action does not imply the existence of the counterpart liberty to forbear doing it: the possessor of the liberty to do X may also be vested with an enforceable duty to do X and, hence, would lack the liberty to forbear doing X. It is this fact that serves to point us more precisely in the direction of the problem we face in thinking about our duties to enforce moral rights. Suppose I have a moral right—a just right—not to be assaulted. Then you, along with many others, have a just duty not to assault me. Can you also have a just duty to enforce, against those others, my right not to be assaulted? That is, can you have what amounts to a second-order just duty to enforce their Wrst-order just duties not to assault me? As noted previously, most people would be willing to grant that you may well have a general moral duty to enforce others’ non-assault duties. But they would resist the suggestion that this second-order enforcement duty of yours can itself be a requirement of justice. Why? For your enforcement duty to be itself a just one, it would have to be a correlative one: that is, correlatively entailing a right (claim) to your performance of that enforcing action. As such, it would imply the presence in someone of a power or liberty to enforce your performance of that enforcing action: it would imply your just liability to conscription. The problem here is that, whatever might be the detailed speciWcation of your Wrst-order just rights, it is essentially unclear that such conscription would not be a violation of them. Here are you, innocently walking along the street, and you come upon some others who are assaulting me. Assuming that you, like myself, have a just right against being assaulted, can it really be true that someone is justly at liberty to force you to interfere with my assailants or to forcibly impose some penalty upon you for not doing so? Would not that someone be thereby violating your right, by assaulting you? Indeed, wouldn’t that someone be thereby violating your rights even if what they forcibly conscripted—expropriated—for that purpose was only your justly acquired belongings, rather than your services? More generally, would we not be correct to suspect that the set of principles generating these various rights, duties, liberties, and powers contains inconsistencies, that it has vested us with incompossible rights?8 Not necessarily. For you might have a contract, with me or even with Milo Minderbinder, that vests you with that duty to interfere with my assailants. So if we assume that duties created by contracts are, or at least can be, just ones, then, by contractually undertaking that duty, you may have placed yourself under a just conscription liability.9 And if you have, your just right against being assaulted is not violated by your being forced to interfere with my 8 On incompossible rights, see Steiner (1994: 2–3, 74–101; 1998: 262–74). 9 May have placed, in so far as the justness of contractual duties and of their bearers’ liability to their enforcement, is thought to require certain cognitive and volitional conditions to be satisWed for a contract to be a just one.

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assailants. It is not violated because that anti-assault right of yours has been contractually modiWed—reduced—by you, so as to empower and permit your co-contractor to force you to perform your contractually incurred enforcement duty. Your co-contractor has been exempted from that antiassault duty in those circumstances. Hence, no incompossibility is thereby implied. That what contracts do is to modify the pre-contractual rights of one or more of the contracting parties is, indeed, little more than a tautology. Our problem is plain. What if your enforcement duty has no such contractual basis? Can there nonetheless be a just right to its performance and, hence, a just liability in you to be conscripted? Indeed, if there could, would this not make any such contract normatively superXuous, so far as your being vested with that enforceable enforcement duty is concerned? After all, what contracts are presumed to do is, precisely, to create just duties: that is, they are presumed to render acts justly obligatory that, in the absence of those contracts, would not be justly obligatory.10 And if they are not justly obligatory, if we remain at liberty to forbear them, would not others (including governments) be under a duty not—lack the liberty and hence the power—to compel us to perform them, inasmuch as such compulsion would violate our unmodiWed rights? So is not Milo Minderbinder therefore correct, insofar as what he is saying implies that enforceable duties to enforce the rights of others are best assigned to the private domain of contracts—including, of course, his favoured domain of commerce?11 In short, how can (non-contractual) conscription be just?

SEN’S PRO POSAL A possible solution to this kind of problem is the consequentialist one advanced by Amartya Sen. This application of consequentialism can be characterized as a proposal that we conceive of the justice principles that generate and shape a set of moral rights as implicitly including an injunction to minimize justice deWcits (MJD). A justice deWcit seems to be in prospect here inasmuch as, regardless of whether performance of enforcement duties is or is not enforced, some innocent person’s rights—yours or mine—look like being diminished: no matter what is done, that deWcit will not be zero. To minimize that deWcit, then, is to minimize the non-zero disvalue that attaches 10 Which is not to deny that, in the absence of those contracts, those acts might nonetheless be obligatory as general moral duties. It is to deny only that their being obligatory is a requirement of justice. 11 Minderbinder himself, of course, is not much concerned with whether these contractual duties, or the rights their performance may be enforcing, are just ones.

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to states of aVairs by virtue of their having the property that some innocent persons’ just rights are not intact in them. In order to lay the meta-ethical foundation for this injunction, Sen argues persuasively for a disengagement of consequentialism from what he calls ‘welfarism’. Welfarism is the view 1. that the appropriate objects of moral appraisal are states of aVairs; and 2. that what matters morally about states of aVairs is to be discovered solely in their utility features—information about pleasures and pains and overall desire-satisfaction. Quite clearly, these two propositions are in no way logically inseparable. It is therefore perfectly open to us to accept the Wrst—consequentialism—while shrugging oV the second as a prejudice fostered by standard utilitarianism and reinforced by its opponents. The morally relevant features of states of aVairs may be multi-dimensional, including utility information but also many other considerations. Welfarism or, more generally, uni-dimensional appraisal is thus one variant of consequentialism, but not the only one (cf. Sen 1987: 40–7, 74). One morally relevant feature of states of aVairs can thus be the presence, in them, of impaired rights. The application of that aforesaid minimizing injunction thence proceeds to an examination of cases exhibiting multilateral interdependences (cf. Sen 1982: 4–19, 1985: 15). These are cases involving persons occupying the four distinct roles, which are implicit in the previous example of my being assaulted. We can thus label these persons generically as Perpetrator, Victim, Conscript, and Conscriptor. In these cases, Conscriptor is in a position to stop Perpetrator from committing a serious violation of Victim’s rights, but the only way she can do this involves her committing a less serious violation of Conscript’s rights. Thus, for instance, Conscriptor knows that Perpetrator has planted a bomb in Victim’s car, but can warn Victim in time to avert injury only by breaking open the locked door to the absent Conscript’s room in order to use the telephone there. Sen makes three claims about this sort of case: 1. that a deontological (constraint-based) view of rights prohibits Conscriptor from breaking into Conscript’s room; 2. that any moral theory that regards respect for rights as being of fundamental and not merely instrumental value—such as the deontological view purports to do and as welfarism avowedly does not do—must license Conscriptor’s breaking into Conscript’s room; and 3. that a consequentialist account of rights can license Conscriptor’s breaking into Conscript’s room.

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The collateral conclusion arrived at on the basis of this reasoning is that a moral theory that regards respect for rights as being of fundamental value is going to be structured so as to license trade-oVs of some rights against others. The compossibility of Conscript’s and Victim’s rights is sustained by MJD, only in the sense that Conscript’s Wrst-order just rights are, post-perpetration, less than they were, pre-perpetration.

NOZICK’S OBJECTION Anticipating such consequentialist constructions of rights, Robert Nozick likens their salient features to those of standard utilitarianism: [A] theory may include in a primary way the non-violation of rights, yet include it in the wrong place and the wrong manner. For suppose some condition about minimizing the total (weighted) amount of violations of rights is built into the desirable end state to be achieved. We then would have something like a ‘utilitarianism of rights’; violations of rights (to be minimized) merely would replace the total happiness as the relevant end state in the utilitarian structure. . . . This still would require us to violate someone’s rights when doing so minimizes the total (weighted) amount of the violation of rights in society. . . . The side-constraint [i.e. Nozick’s] view [of rights] forbids you to violate these moral constraints in the pursuit of your goals; whereas the view whose objective is to minimize the violation of these rights allows you to violate the rights (the constraints) in order to lessen their total violation in society. (1974: 28–9)

And the superiority of the side-constraint view of rights is held to lie in the fact that [side] constraints upon action reXect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacriWced or used for the achieving of other ends without their consent. . . . Side constraints express the inviolability of others, in the ways they specify. These modes of inviolability are expressed by the following injunction: ‘Don’t use people in speciWed ways.’ An end-state view, on the other hand, would express the view that people are ends . . . by a diVerent injunction: ‘Minimize the use in speciWed ways of persons as means.’ Following this precept itself may involve using someone as a means in one of the ways speciWed. Had Kant held this view, he would have given the second formula of the categorical imperative as, ‘So act as to minimize the use of humanity simply as means’, rather than the one he actually used: ‘Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.’ (ibid. 30–2)

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For Nozick, then, any set of rights-generating principles that licenses and empowers Conscriptor lacks conformity with the Kantian precept. The fact that her treatment of Conscript is a response to Perpetrator’s treatment of Victim and that the former treatment is less adverse than the latter does not preclude it from being, like Perpetrator’s, a contravention of the injunction ‘Don’t use people in speciWed ways’—the speciWed way in question here being the violation of another’s rights. On the side-constraint view of rights, the rights respectively imputed to Victim and Conscript by MJD are indeed incompossible. Hence, Nozick would agree with Milo Minderbinder: enforceable duties to enforce the rights of others are best assigned to the private domain of contracts.12

A R EC ON CIL I AT IO N ? Can these two views of just rights be brought into closer alignment? I believe they can. And, somewhat ironically, the argument that this can be done is based on a critical scrutiny of the one proposition on which both Sen and Nozick are agreed: that, in a post-perpetration world, Conscript’s pre-perpetration rights have necessarily been reduced and, hence, that his or her postperpetration rights are only a subset of them. How does this argument work? Two preliminary clariWcations are needed. First, we need brieXy to establish one signiWcant aspect of the meaning of the term ‘use’, in relation to Nozick’s invocation of the Kantian injunction of the second formula against using other persons only as means. Nozick, as we have seen, takes that injunction to entail that one person may not use another without the latter’s consent. However, he oVers little defence of this inference, and Cohen has argued, quite persuasively, that it is illicit: that, indeed, the Kantian injunction neither entails nor is entailed by Nozick’s consent requirement (cf. Cohen 1995: 238– 42). But even if we put that issue to one side, there appears to be some fundamental ambivalence in the very idea of what using a person amounts to.13 I shall simply take it, as a feature of uses in general, that—however diverse these may be—no use occurs if an attempted use fails, just as no murder occurs if an attempted murder fails. What is it for an attempted use to fail? 12 Cf. Nozick (1974: ch. 2) on ‘protective associations’. This does not imply that Minderbinder is a Kantian! 13 I also leave aside—due to my uncertainty about its relevance here—the consideration that the ends in behalf of which Conscriptor conscripts Conscript are her ends in only a very attenuated sense.

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The idea of using something, X, presupposes the presence of a purpose on the part of the user. SpeciWcally, it presupposes that there are some features of a state of aVairs, Y, which can be brought about by a disposition of X,14 and which the disposer of X intends to bring about. An attempted, but failed, use of X would thus imply the non-occurrence of those Y-features. Now, it seems clear that, among the several conditions disjunctively suYcient for the nonoccurrence of those features, two are (a) that the causally required disposition of X is outrightly prevented; and (b) that, even though the required disposition is not prevented, the bringing about of those features is. That is, a piece of conduct disposing of X fails to amount to a use of X, either if that conduct is rendered incapable of occurring or if, despite its occurrence, those intended Y-features of the post-disposition state of aVairs do not eventuate. In the latter case, we say that the conduct disposing of X is nulliWed. Of course, it is reasonable to assume that Kant’s second formula is to be understood as an injunction also against attempted uses of persons. But, when read in the light of Kant’s aforementioned distinction between duties of justice and other moral duties—whereby only the latter pertain to our intentions in acting15—the second formula implies that failed attempts to use others cannot count as breaches of just duties, even if they may well count as breaches of other moral duties. The second clariWcation begins from the trivial observation that our just rights entitle us to many diverse things. Exactly what these things are evidently varies from one theory of justice to another. But what is common to all of them is that they consist in what Bentham referred to as the services of others: that is, all the duties correlatively entailed by our rights consist in the forbearances or performances of other persons. Those obligatory forbearances and performances are important and each possesses a value. And although these values obviously vary enormously, it seems fair to say that any account of just rights—and certainly Sen’s and Nozick’s—presupposes their comparability. How else could Sen determine that Perpetrator’s failure to forbear from his or her act against Victim is a more serious violation of rights than is Conscriptor’s act against Conscript? How else could Nozick advance a principle of rectiWcation—that ‘performers of injustice have [obligations] toward those whose position is worse than it would have been had the injustice not been done’—as one of the three constitutive principles of his theory of distributive justice? (Nozick 1974: 152). Precisely which value-metric is presupposed by Sen’s and Nozick’s shared assumption of rights-comparability is 14 Or, at least which the would-be disposer believes can be brought about by a disposition of X. 15 See fn. 5.

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evidently a matter of profound importance, but as it does not immediately concern our present enquiry, I shall not pursue it here. Consider, then, how our understanding of the enforcement issue before us would be aVected by our treating each just right as an entitlement to a certain amount of that value. If, in a post-perpetration world, Victim’s and Conscript’s respective sets of rights were each to be of the same value magnitude as they had been pre-perpetration, would there be any grounds left for claiming that the rights of either of them were not intact? If not, would that postperpetration world not be describable as at once satisfying both Sen’s and Nozick’s injunctions? That is, would it not constitute a state of aVairs in which the justice deWcit had been minimized,16 and one in which persons’ attempted uses of others had been nulliWed? The answer to the latter question is ‘not necessarily’. For what we are evidently considering here is the possibility of compensation. And, for those descriptions to be true, that compensation has to have been extracted from certain speciWc persons rather than just anyone. For instance, extracting compensation from Wfth parties—from persons other than any of the four we’ve been discussing—would amount to a violation of their rights, inasmuch as it would entail an uncompensated post-perpetration reduction of their preperpetration holdings of value: it would itself be another perpetration. The resulting justice deWcit, being non-zero, would thus fail to be minimized. And persons—the compensators—would certainly have been used by others—the extractors—in the speciWc way of violating their rights. Whom compensation is extracted from matters, so far as justice is concerned. So who should (justly) be paid compensation, and who should (justly) be compelled to pay it? Well, if, as we have so far been assuming, the intervention by Conscriptor and Conscript has actually succeeded in preventing Perpetrator from violating Victim’s rights, then, trivially, the latter’s pre- and post-perpetration holdings of value are identical: he has suVered no justice deWcit; nor has he been used in that speciWc forbidden way. If, conversely, the intervention has not succeeded, Victim is evidently owed enforceable compensation by Perpetrator to restore the parity of his pre- and postperpetration rights. That such enforceable payment will leave Perpetrator’s post-perpetration rights below the level of their pre-perpetration counterparts does not signify a violation of his rights, since—like the act of contracting— voluntarily perpetrating is tantamount to Perpetrator’s modifying (reducing) his rights by the amount of that owed compensation. This enforceable

16 Inasmuch as the extent of innocent persons’ non-intact pre-perpetration rights in it would be zero.

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reduction is one which justice requires Perpetrator to bear and one which does not require nulliWcation. It does not leave him or her with a justice deWcit. Whether or not the intervention has succeeded in preventing Perpetrator’s violation, Conscript’s rights have been violated—and by Conscriptor. So the latter clearly owes Conscript compensation. The payment of this compensation nulliWes that violation by ensuring the parity of Conscript’s pre- and post-perpetration rights. But here a problem arises: Conscriptor’s enforceable payment to Conscript would—as Perpetrator’s payment to Victim does—leave the former’s own post-perpetration holdings reduced below their pre-perpetration level. Is this reduction, which justice similarly requires her to bear, unnulliWed? I think the answer is ‘no’. It would be otherwise—that is ‘yes’—if that act of conscription had been unnecessary to prevent Perpetrator’s violation. But, ex hypothesi, it was necessary. That being so, there is a decisive reason to claim that her conscripting of Conscript was, indeed, an act required of Conscriptor by an enforceable duty. To see this, we need to remind ourselves about the source of Conscript’s conscription liability. Again, ex hypothesi, it is not one grounded in a contract: that liability was not one created by either Conscript or Conscriptor. So it must be one directly enjoined by whatever justice principles are generating the set of just rights in question—the set that includes Victim’s right against Perpetrator. These principles themselves are such as to imply that Conscript—an innocent third party, with respect to Perpetrator and Victim—is subject to a conscription liability. In this case, since Conscriptor herself occupies the same innocent third-party position with respect to Perpetrator and Victim, she is presumably subject to the same injunction. Of course, the Hohfeldian logic of this line of thought immediately implies the existence of a second-order Conscriptor—one who is in turn empowered to impose Conscriptor’s conscription duty upon her. But that is no obstacle to Wnding an enforceable duty in Conscriptor to do what she did—to conscript Conscript—and it probably describes the structure of the jural relations that obtain in many real-world conscription practices. If, then, the non-parity between Conscriptor’s pre- and post-perpetration holdings does warrant her compensation, by whom and how much is the compensation owed to her? The loss of rights Conscriptor would otherwise stand to incur, by virtue of her intervention in behalf of Victim’s rights, evidently has two component elements. There is, Wrst, whatever of her own pre-perpetration holdings have had to be directly sacriWced in that intervening eVort; and second, the amount she has had to pay in compensation to Conscript to nullify the former’s violation of the latter’s rights. Who owes these amounts to Conscriptor? Perhaps, and in the interests of precision, we should say that, since her intervention was the fulWlment of an enforceable

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duty, compensation for the losses thereby incurred is owed by whoever enforced that duty on her, that is by second-order Conscriptor. But if, by parity of reasoning, we regard second-order Conscriptor’s action as similarly required by an enforceable duty, and if we thus proceed to trace this extended compensation chain to its terminus, it is reasonably clear that—however long that chain may be—its terminal point must be Perpetrator. For if, and only if, it is Perpetrator will it be true that any post-perpetration reduction of preperpetration holdings was incurred voluntarily. Only if it is Perpetrator will it be true that the post-perpetration settlement lacks any justice deWcit, and that persons will have been prevented from using others by unnulliWed violations of their rights. The appropriate analogy for this compensation chain might, I suppose, be a row of stood-up dominoes which are so arranged that, when the Wrst one falls, each following one is pushed, and falls, in succession. Because each domino is the immediate cause of its successor’s falling, it both owes its successor compensation and is, in turn, owed at least that amount of compensation by its predecessor. So the ultimate ower—the only domino who is left out-of-pocket—is the Wrst domino to have pushed (or whoever pushed it). Two points of wider relevance emerge from this argument for the possibility of just conscription. The Wrst simply notes that the property of rights that sustains this construction, of enforceable duties to enforce rights, is their fungibility. It is this property that is implicitly attributed to them by, for instance, the provisions of civil or private law, whereby perpetrators of rights-violations are held liable for payment of damages to their victims (and for payment of ancillary legal costs). It is also this property that forms the basis for rejecting the Sen–Nozick shared assumption that Conscript’s post-perpetration rights are bound to be only a subset of his pre-perpetration rights. More generally, what this analysis of just conscription suggests is that the diVerence between consequentialist views of rights and the view of them as deontological side constraints may be less than is often assumed. A pluralist consequentialism of the sort advanced by Sen, in aYrming (as welfarism does not) a multiplicity of primary values, need not be committed to mandating trade-oVs between those several values, even if (like all consequentialisms) it does mandate trade-oVs between competing instances of the same value.17 It can immunize any of those values against the former kind of trade-oV by 17 A trade-oV between two diVerent primary values occurs when duties respectively instancing each of them are disjunctively but not conjunctively fulWllable (i.e. conXict), and when a suYciently large instance of the lower-ranked/weighted value overrides an insuYciently large instance of the higher-ranked/weighted one.

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according it a lexically prior status in relation to the others. It can consistently hold, as Nozick does,18 that any duty of justice lexically outranks or trumps— or side-constrains—the pursuit of other values and the performance of whatever duties that pursuit entails. Nor is this side-constraining property lost in the case of just conscription. For, unlike trade-oVs between competing instances of the same value—where that value is not rights—the trade-oV between the victim’s right and the conscript’s right does not entail that one overrides the other. Rather, and due to the aforesaid fungibility, it entails only that the conscript’s rights can be upheld by other means.19

SELF-OWNERSHIP AND CONSCRIPTION So, can self-ownership bear the weight of such an uncontracted conscription liability? Even if it can be borne by other justice theories of moral rights, is it not bound to be one of those uncontracted services to others that are anathematized by any theory assigning foundational status to our moral ownership of ourselves? Cohen’s view, as we have seen, suggests that the answer to the latter question is ‘yes’. For, if the requirement of consent is, indeed, ‘an immediate entailment of self-ownership’ (Cohen 1995: 243), it would necessarily follow that the impressment of Conscript’s services, into the project of upholding of Victim’s rights, is inconsistent with Conscript’s selfownership. However, this entailment claim is open to doubt. Of fairly immediate relevance here is Cohen’s response to the following objection mounted by Ronald Dworkin against the determinacy of self-ownership: To own something is to enjoy some or other set of rights with respect to that thing. But one might envisage a number of importantly diVerent sets of rights over themselves and their powers in virtue of which we could say of people that they are self-owners. The principle of self-ownership therefore lacks determinate content. (ibid. 213)

To this, Cohen replies at some length: The premises of this sceptical argument do not appear to me to sustain its conclusion. They do not show that the principle of self-ownership legislates indeterminately. For one thing, they do not refute the hypothesis, which I hereby propose, that the principle achieves determinacy through its requirement that everyone enjoys full 18 And Rawls too (cf. Rawls (1971: 3ff.). 19 It is perhaps worth noting that this construction applies equally to cases in which—unlike Sen’s—the value of Conscript’s rights exceeds that of Victim’s. It is thereby even further removed from what Nozick refers to as a ‘utilitarianism of rights’.

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self-ownership. It might indeed make no determinate sense to say, in the abstract, that Jones owns himself. But when one stipulates that each person has full private property in himself, then the constraints of universality and fullness combine to disqualify some sets of rights as possible denotations of ‘self-ownership’. . . . [Even if some indeterminacy still remains] the requirements of universality and maximality will generate core rights that are indisputable. . . . The polemically crucial right of selfownership is the right not to (be forced to) supply product or service to anyone. (ibid. 213–15)

An uncontracted conscription liability of the sort we have been considering would appear to authorize a straightforward violation of that polemically crucial right. The reason why that appearance is misleading emerges most clearly, I believe, from a consideration of Nozick’s own brief discussion of ‘innocent threats’: [A] principle that prohibits physical aggression [i.e. violations of self-ownership] . . . does not prohibit the use of force in defence against another party who is a threat, even though he is innocent and deserves no retribution. An innocent threat is someone who innocently is a causal agent in a process such that he would be an aggressor had he chosen to become such an agent. If someone picks up a third party and throws him at you down at the bottom of a deep well, the third party is innocent and a threat; had he chosen to launch himself at you in that trajectory he would be an aggressor. (1974: 34)

Setting aside the obvious disanalogies between this case and our previous one, it is not diYcult to see that Conscript occupies a morally similar position to that of Innocent Threat. Crucially, Conscript’s being forced by Conscriptor to render service in upholding Victim’s rights is unchosen by him. But the same is true of Conscriptor. For Conscriptor does what she does by virtue of a conscripting duty enforcibly imposable upon her either by second-order Conscriptor or, perhaps, by Victim himself. Indeed, Victim and either Conscriptor or second-order Conscriptor may be one and the same person. But that fact is insuYcient grounds to identify his position as morally similar to Perpetrator’s or Aggressor’s. As Nozick suggests, that conscripting use of force is a permissible one, inasmuch as it is directed at preventing20 the rightsviolation initiated by Perpetrator (Aggressor). The more general point here is that, although Cohen is undoubtedly correct in insisting that the requirements of universal full self-ownership are determinate over a wide range of issues concerning the forced supply of one’s services to others, it is mistaken to deny that they are indeterminate in cases where those services are ones of upholding those others’ rights. Full ownership entails (a) a right against others’ incursions on what one owns; (b) a 20 Or, for that matter, redressing.

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liberty and power to do what is necessary to prevent such incursions; and, in the event of such incursions occurring, (c) a right to full compensation for them. To deny that Victim is vested with that liberty and power is to deny his full self-ownership. In cases like the two discussed above, it is of course true that his exercise of that liberty and power amounts to a violation of Conscript’s/Innocent Threat’s self-ownership right against others’ incursions. My claim is simply that full compensation for that violation nulliWes it.21 If that claim is true, self-ownership can, indeed, bear the weight of an uncontracted just conscription liability. Hence, not all impressed servicings of others are ones prohibited by self-ownership.

REFERENCES Cohen, G. A. (1995). Self-Ownership, Freedom and Equality. Cambridge: Cambridge University Press. Heller, J. (1961 [1994]). Catch-22. London: Vintage. Kant, I. (1991). The Metaphysics of Morals, trans. M. Gregor. Cambridge: Cambridge University Press. Kramer, M. (1998). ‘Rights Without Trimmings’, in M. Kramer, N. Simmonds, and H. Steiner, A Debate Over Rights: Philosophical Enquiries. Oxford: Oxford University Press. —— Simmonds, N., and Steiner, H. (1998). A Debate Over Rights: Philosophical Enquiries. Oxford: Oxford University Press. Nozick, R. (1974). Anarchy, State, and Utopia. Oxford: Basil Blackwell. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press. Sen, A. (1982). ‘Rights and Agency’, Philosophy & Public AVairs, 11. —— (1985). ‘Rights As Goals’ (Austin Lecture 1984), in S. Guest and A. Milne (eds.), Equality and Discrimination: Essays in Freedom and Justice. Stuttgart, Germany: Franz Steiner. —— (1987). On Ethics and Economics. Oxford: Blackwell. Simmonds, N. (1998). ‘Rights at the Cutting Edge’, in M. Kramer, N. Simmonds, and H. Steiner, A Debate Over Rights: Philosophical Enquiries. Oxford: Oxford University Press. Steiner, H. (1994). An Essay on Rights. Oxford: Blackwell. —— (1998). ‘Working Rights’, in M. Kramer, N. Simmonds, and H. Steiner, A Debate Over Rights: Philosophical Enquiries. Oxford: Oxford University Press. 21 Thus, for example, full compensation of persons conscripted for military service nulliWes what would otherwise be a violation of their self-ownership.

6 Is the Basic Structure Basic? Samuel ScheZer

Rawls says in A Theory of Justice that, for him, ‘the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation’ (1971 [1999]: 7[6]).1 In the course of his sustained and wide-ranging critique of Rawls’s political philosophy, G. A. Cohen subjects this aspect of Rawls’s view to withering critical scrutiny. In this chapter, I want to assess the force of Cohen’s objections. I will begin by considering what Rawls means when he says that the basic structure is the primary subject of justice, and by examining the motivations for his view. I will then summarize Cohen’s arguments and ask whether those arguments succeed in undermining Rawls’s position. My ultimate aim is not to interpret or defend Rawls, but rather to consider the merits of focusing on the basic structure as the primary subject of justice. As I have noted, Rawls takes the ‘basic structure’ to comprise a society’s ‘major social institutions’. These institutions are understood to include ‘the political constitution and the principal economic and social arrangements’ (ibid.). Rawls emphasizes that his inquiry is a limited one and that the justice of the basic structure is only ‘a special case of the problem of justice’ (ibid. 7[7]). The principles of justice that apply to the basic structure may not be the appropriate principles of justice for regulating private groups or associations, the customs and conventions of everyday life, the law of nations, or voluntary cooperative agreements in general. Thus, for example, his defence of ‘justice as fairness’ should not be taken to imply that churches and scholarly organizations must seek to implement the diVerence principle or that the conventions of etiquette must incorporate the principle of fair equality of opportunity. I am grateful to Jerry Cohen, Samuel Freeman, Niko Kolodny, and Michael Titelbaum for valuable written comments on an earlier version of this chapter. I have also beneWted from discussions with Meir Dan-Cohen, Kerstin Haase, Thomas Nagel, and Eric Rakowski. 1 Cited hereafter with page references to both editions (1971 [1999]).

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Nor should we assume that the principles of justice that are appropriate for the basic structure can also serve to regulate individual conduct in general. ‘The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances. These two kinds of principles apply to diVerent subjects and must be discussed separately’ (ibid. 54–5[47]). The principles of individual conduct must address the full range of moral requirements and permissions that apply to us as individuals. They must clarify the nature of our obligations and natural duties, and they must address a wide variety of topics including supererogation, mutual aid, and personal virtues such as beneWcence, courage, and mercy (ibid., sect. 18). In contrast to utilitarianism, as it is usually interpreted, Rawls does not suppose that his theory is a completely general moral outlook that ‘applies equally to all social forms and to the actions of individuals’ (Rawls 1993: 260). Indeed, he says that ‘[t]he Wrst principles of justice as fairness are plainly not suitable for a general theory’ (ibid. 261). He is, in this sense, a pluralist about moral principles, and his claim that the basic structure is the primary subject of justice is in part an expression of methodological modesty. Rawls presents his principles as having limited scope; they are framed so as to apply to major social institutions and do not constitute principles for the general regulation of groups, associations, and individuals. To be sure, he believes that certain principles for individuals ‘are an essential part of any theory of justice’ (1971[1999]: 108[93]), because they specify how individuals are to conduct themselves in relation to just institutions. He includes as part of his theory two such principles: the principle of fairness, which accounts for all of our voluntarily incurred obligations, and the principle governing the natural duty of justice. ‘This duty’, Rawls says, ‘requires us to support and to comply with just institutions that exist and apply to us’, and ‘to further just arrangements not yet established, at least when this can be done without too much cost to ourselves’ (ibid. 115[99]). He also emphasizes that, in order for a society to be ‘well ordered’, its major institutions ‘must be not only just but framed so as to encourage the virtue of justice in those who take part in them’ (ibid. 261[231]). Citizens must have a ‘strong and normally eVective’ (ibid. 454[398]) sense of justice. They must be motivated to ‘accept the just institutions that apply to’ them, to do their ‘part in maintaining these arrangements’, and to ‘work for (or at least not to oppose) the setting up of just institutions, and for the reform of existing ones when justice requires it’ (ibid. 474[415]). Despite the fact that the principles of justice for the basic structure are framed so as to apply to institutions and do not constitute principles for the general regulation of individual conduct, then, Rawls takes them to have an important bearing

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both on individuals’ responsibilities and on their motives. At the same time, this formulation itself reveals another aspect of the claim that the basic structure is the primary subject of justice: the principles for the basic structure are primary in the sense that the principles for individuals depend on them. We cannot know how considerations of distributive justice should aVect individual conduct until the principles for the basic structure are in hand. Appealing to ‘the social nature of the virtue of justice’, Rawls asserts ‘that a person’s obligations and duties presuppose a moral conception of institutions and therefore that the content of just institutions must be deWned before the requirements for individuals can be set out’ (ibid. 110[95]). In A Theory of Justice and in subsequent writings, Rawls gives a number of diVerent reasons, beyond those that are implicit in what has already been said, for treating the basic structure as primary. His various discussions of this topic diVer in emphasis, organization, and detail, but I want to highlight three considerations he mentions that seem to me particularly signiWcant. In summarizing these considerations, I will quote extensively from Rawls’s texts, because I think that his views have been frequently misunderstood and I want to convey some of the substance and Xavour of his own formulations. First, he says that the ‘basic structure is the primary subject of justice because its eVects are so profound and present from the start’ (ibid. 7[7]). People born into diVerent social positions have diVerent expectations in life, and their more or less favourable prospects cannot possibly be justiWed by an appeal to their prior merit or desert. Because one’s initial social position has such a profound eVect on one’s chances in life, and because any inequalities resulting from diVerences in people’s starting places are ‘especially deep’ and ‘pervasive’, it is essential that a society’s major institutions, and the social positions they determine, should be regulated by norms of justice (ibid.). Second, the basic structure ‘shapes the wants and aspirations that its citizens come to have. It determines in part the sort of persons they want to be as well as the sort of persons they are. Thus an economic system is not only an institutional device for satisfying wants and needs but a way of creating and fashioning wants in the future’ (ibid. 259[229]). Because of this, the choice of social institutions ‘involves some view of human good and of the design of institutions to realize it’ (ibid. 259–60[229]). This is a choice that must ‘be made on moral and political as well as on economic grounds’ (ibid. 260[229]). After all, people’s wants and interests ‘are not Wxed or given’ (Rawls 1993: 269). The desires and aspirations that individuals happen to have at any given moment enjoy no default moral authority. Antecedently, there is no more reason to endorse the status quo with respect to the distribution of desires and interests than there is to endorse the existing distribution of property. A ‘theory of justice must take into account how the aims and aspirations of people are formed’ (ibid.), and it cannot remain ‘at the mercy, so to speak, of existing

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wants and desires’ (Rawls 1971[1999]: 261[231]). It must instead consider how ‘the basic structure shapes the way the social system produces and reproduces over time a certain form of culture shared by persons with certain conceptions of their good’ (Rawls 1993: 269). Just institutions must be designed so as ‘to foster the virtue of justice and discourage desires and aspirations incompatible with it’ (Rawls 1971[1999]: 261[231]). Third, we cannot tell whether agreements and transactions among individuals are just simply by looking to the local contexts of those agreements and transactions. Instead, ‘certain background conditions are necessary if transactions between individuals are to be fair’ (Rawls 1993: 269). Moreover, even if fair background conditions exist at a particular time, that does not suYce to ensure the fairness of all subsequent transactions among individuals. ‘Even though the initial state may have been just, and subsequent social conditions may also have been just for some time, the accumulated results of many separate and seemingly fair agreements entered into by individuals and associations are likely over an extended period to undermine the background conditions required for free and fair agreements’ (Rawls 2001: 53). In order for agreements and transactions among individuals to be just, it is necessary both to secure and to preserve just background conditions. This task cannot be accomplished by individuals, for ‘there are no feasible and practicable rules that it is sensible to impose on individuals that can prevent the erosion of background justice’ (Rawls 1993: 267). The rules applying to individual transactions and agreements are ‘practical and public directives’ (ibid. 268). As such, they ‘cannot be too complex, or require too much information to be correctly applied’ (ibid. 267). They cannot ‘exceed the capacity of individuals to grasp and follow them with suYcient ease’, nor can they ‘burden citizens with requirements of knowledge and foresight that they cannot normally meet’ (ibid. 268). Rawls argues that there simply are no feasible rules of individual conduct that are capable of preserving background justice and that do not violate these conditions. He writes: Individuals and associations cannot comprehend the ramiWcations of their particular actions viewed collectively, nor can they be expected to foresee future circumstances that shape and transform present tendencies. All of this is evident enough if we consider the cumulative eVects of the purchase and sale of landed property and its transmission by bequest over generations. It is obviously not sensible to impose on parents (as heads of families) the duty to adjust their own bequests to what they estimate the eVects of the totality of actual bequests will be on the next generation, much less beyond. (ibid.)

Rawls believes that the task of ensuring background justice can only be performed by the institutions that make up the basic structure: The role of the institutions that belong to the basic structure is to secure just background conditions against which the actions of individuals and associations

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take place. Unless this structure is appropriately regulated and adjusted, an initially just social process will eventually cease to be just, however free and fair particular transactions may look when viewed by themselves. (ibid. 266)

He concludes that we should seek ‘an institutional division of labor between the basic structure and the rules applying directly to individuals and associations and to be followed by them in particular transactions’ (ibid. 268–9). The basic structure includes ‘those operations that continually adjust and compensate for the inevitable tendencies away from background fairness, for example, such operations as income and inheritance taxation designed to even out the ownership of property’ (ibid. 268). The rules applying to individuals and associations include such things as ‘rules relating to fraud and duress’, which ‘satisfy the requirements of simplicity and practicality’ (ibid.). Rawls says that if ‘this division of labor can be established, individuals and associations are then left free to advance their ends more eVectively within the framework of the basic structure, secure in the knowledge that elsewhere in the social system the necessary corrections to preserve background justice are being made’ (ibid. 269). Before turning to a consideration of Cohen’s criticisms of Rawls, let me make three observations about Rawls’s account. First, Rawls actually draws two diVerent contrasts between the norms that govern the basic structure and norms of other kinds. As we have seen, he draws a general distinction between the principles of justice that apply to the basic structure and the principles that apply to individual conduct and to groups and associations. The point of this contrast is to allow for the plurality of values and principles and to clarify the limited scope of Rawls’s project. His two principles of justice are not proposed as a codiWcation of the entire content of morality, nor are they meant to pre-empt or supersede the many other norms that also apply to individuals and associations. In addition, however, Rawls also speaks more narrowly of an ‘institutional division of labor’ between ‘two kinds of social rules, and the diVerent institutional forms in which these rules are realized’ (ibid. 268). The idea is that the basic structure includes one set of operations (such as income and inheritance taxation) that is designed to preserve background justice over time, and that it ‘also enforces through the legal system another set of rules that govern the transactions and agreements between individuals and associations’ (ibid.). This other set of rules includes the law of contract, and its function is to provide individuals with a set of clear and practical guidelines that they can use to guide their economic transactions within a background framework whose fairness will be monitored and preserved by the Wrst set of institutional mechanisms and arrangements. The point here is not about pluralism or methodological modesty, but rather that, given the feasibility constraints that apply to the rules regulating individual conduct, the institutional forms required to ensure background justice will

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have to go beyond and help Wx the content of those rules. At the risk of causing confusion rather than dispelling it, I will refer to the Wrst contrast as ‘the division of moral labor’ between the principles of justice that apply to the basic structure of society and the values and principles that apply to other areas of life; and to the second contrast, following Rawls, as the ‘institutional division of labor’ between those social forms that are required to ensure background justice and those that directly regulate individual economic transactions. The second observation is that neither of these contrasts implies that the principles of justice for the basic structure have no bearing on individuals’ duties and responsibilities. Nor do they imply that individuals’ motives and attitudes can properly remain unaVected by those principles. As we have already seen, Rawls insists, to the contrary, that individuals have a natural duty to support just arrangements, and that a just and stable society will be impossible unless the members of society have a strong and normally eVective sense of justice. Moreover, he says that just institutions must have the aim of encouraging the virtue of justice among citizens and ‘discouraging desires that conXict with the principles of justice’ (Rawls 1971[1999]: 261 [230–1]). These claims are entirely consistent with the pluralism about value to which the division of moral labour is responsive. They are also consistent with Rawls’s notion of an institutional division of labour, since his idea is merely that rules of individual conduct are insuYcient to preserve background justice, not that individual conduct can properly remain uninformed by considerations of justice. Finally, in drawing the two contrasts I have mentioned, Rawls’s aim is not to explain how individuals can be freed from the burdensome responsibility of securing social justice. Nor is he attempting to demonstrate that a just set of social institutions would make it possible for individuals as economic actors to behave as unrestrained self-interested maximizers. The division of moral labour, as we have seen, responds to a form of pluralism about moral values and principles. The idea is not that there are no moral principles that regulate individual conduct, so that the Weld is clear for the unrestricted pursuit of self-interest, but rather that the principles for the basic structure do not supersede the complex and varied principles and values that apply to individuals. The institutional division of labour, meanwhile, responds to a problem about how background justice can be secured and preserved. The idea here is not to relieve individuals of a burdensome but feasible task, but rather that the task in question is one that individuals are incapable of discharging. Admittedly, Rawls courts misunderstanding of this point when he says: ‘If this division of labor can be established, individuals and associations are then left free to

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advance their ends more eVectively within the framework of the basic structure, secure in the knowledge that elsewhere in the social system the necessary corrections to preserve background justice are being made’ (1993: 269). This can easily be taken to mean that the division of labour is intended to leave individuals ‘free to advance their ends’ rather than requiring them to preserve background justice. In this spirit, Murphy interprets Rawls as wanting ‘to take the business of securing justice oV people’s plate’ so that they can ‘devote most of their concerns to their own aVairs’, thus leading ‘freer and better lives’ (1999: 258).2 However, Rawls’s point is very diVerent, and it is clear enough in context. If the division of labour were not established, individuals would have no basis for conWdence in the justice of their economic arrangements, even if each individual transaction were conducted in conformity with the fairest set of rules that it was feasible for individuals to abide by. The implication of Rawls’s argument is not that, in the absence of a just basic structure, individuals would have to pick up the slack, which would be very burdensome for them, but rather that they would have no choice but to concede the 2 Murphy gives what I regard as a misleading account of the relation between the institutional division of labour and the division of moral labour. He thinks that the former is motivated by a desire to limit the burdens on individuals and that, as such, it is meant to provide an argument for what he calls ‘dualism’, which corresponds (roughly) to the division of moral labour. I have argued, by contrast, that the division of moral labour is a response to a general pluralism about value, whereas the institutional division of labour is responsive to an independent concern about the need to ensure background justice. Murphy equates Rawls’s account of the institutional division of labour with the idea of a ‘moral division of labor’ described by Nagel (1991: ch. 6 in particular). Although Murphy’s characterization seems fair enough as a description of Nagel’s view, Rawls’s view is very diVerent. There is nothing in Rawls that corresponds to Nagel’s distinction between the personal and impersonal standpoints within each individual, still less is the institutional division of labour proposed as a way of integrating those two standpoints. Julius (2003) also equates (one strand of) Rawls’s position with Nagel’s. He describes what he calls the ‘separation view’, according to which the ‘separation of institutional and personal spaces of decision aVords a division of labor whose function is to externalize the burdens of attention to justice’ (ibid. 326–7), so that it is possible, compatibly with equality, for people ‘to pursue good lives for themselves, with every person attaching special importance to her own success’ (ibid. 326). Although Julius says that ‘[t]he key to this outlook is Rawls’s image of a moral division of labor’ (ibid.), both the italicized phrase itself and the view to which it refers are drawn from Nagel rather than Rawls. More generally, I believe that it is anachronistic to interpret Rawls, as both Murphy and Julius do in the passages I have cited (see also Murphy 1999: 288–91), as preoccupied with questions about the burdensomeness of justice or the demandingness of morality. Such questions began to attract widespread philosophical scrutiny with the publication of Williams’s essay, ‘A Critique of Utilitarianism’ (1973). But although, as I (ScheZer 1982: ch. 1) have argued, there are connections between Williams’s and Rawls’s criticisms of utilitarianism, questions about the relative demandingness of diVerent moral norms did not loom large in A Theory of Justice, which was published two years before Williams’s essay. I believe it is a mistake to read those preoccupations back into Rawls’s text and treat them as supplying the motivation for his emphasis on the basic structure.

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injustice of their economic arrangements, at least until they were able to establish just institutions.3 Before turning to Cohen, let me address one question raised by the observations that I have made. I have emphasized that, despite Rawls’s insistence that the basic structure is the primary subject of justice, he also thinks that just institutions must shape individuals’ characters and regulate their conduct. A just social system must encourage the development within citizens of the virtue of justice, and it must discourage the formation of desires that conXict with the principles of justice. In addition, the basic structure must enforce through the legal system a set of rules that governs individual economic transactions. How, then, can Rawls continue to say that his principles of justice apply to the basic structure rather than to individual actions? This question will seem troubling, I believe, only if we suppose that Rawls’s distinction between the principles that apply to institutions and those that apply to individuals is intended to place individuals beyond the reach of justice and to insulate them from its inXuence. However, Rawls’s point is merely that his principles of justice are not framed as direct or general 3 I am indebted here to an unpublished presentation given by Jake Bassett in a graduate seminar I taught in 2000. Murphy criticizes the suggestion Rawls (1993: 268) makes, when illustrating the idea of an institutional division of labour, that devices like income and inheritance taxation belong to the basic structure whereas the law of contract belongs to the rules that apply to individuals. Murphy argues that the institution of taxation is not intrinsically ‘less intrusive on people’ (1999: 260) than the law of contract, so that the distinction Rawls draws ‘does not correspond to any principled doctrinal or structural division in legal systems’ (ibid. 261). As I have argued, however, the point of the institutional division of labour is not to ensure that justice is achieved in a way that individuals do not Wnd intrusive. Nor is it essential for Rawls that this division of labour should correspond to a deep or principled distinction in the law. His point is that the basic structure will need to include some institutional mechanisms that serve to adjust and compensate for deviations from background justice. Suitably designed institutions will be capable of gathering the extensive information and performing the complex calculations on which background justice depends, but which individuals could not reasonably be expected to have available to them for use in personal decision-making. There is no reason why the speciWc institutional mechanisms that are used to ensure background justice must be Wxed or invariant, or why the distinction between those mechanisms and the rules applying to individual transactions must correspond to a deep, doctrinal division. The distinction between tax and contract is illustrative, not deWnitional or essential. All that is necessary is that the basic structure should include some mechanisms that go beyond the rules for individuals and that are designed to ensure background justice. Murphy protests that the rules applying to individuals cannot plausibly be thought to lie ‘entirely outside the purview of justice’ (ibid.). But, as Murphy indirectly acknowledges, Rawls is clear about the fact that the rules applying to individual transactions are themselves rules that the basic structure ‘enforces through the legal system’ (Rawls 1993: 268), so that they are not outside the purview of justice. Nor, as I will argue, does this undermine Rawls’s claim that his principles of justice are framed so as to apply to institutions rather than individuals. On the one hand, the fact that just institutions will establish and enforce legal rules that apply to individuals does not imply that the principles of justice themselves apply directly to individual conduct; on the other hand, the fact that the principles will indirectly aVect individuals, through the operation of just institutions, is not something that Rawls has any wish to deny.

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guidelines for individual conduct. On the one hand, the principles are framed in such a way as to guide institutions in securing the background justice and fairness of the social system, a task that individual agents cannot feasibly accomplish by themselves. On the other hand, the principles do not purport to codify or supersede the many other values and norms that appropriately apply to individual conduct. So individuals should not, in general, treat them as guides to personal decision-making. But that is not to say that the principles of justice should have no impact on individuals’ motives or that the basic structure cannot in turn enforce rules that apply to individuals. On the contrary, one of the most important tasks of the basic structure is to inXuence people’s wants and aspirations, and another of its tasks is to regulate individual conduct in such a way as to preserve background justice. Yet we cannot know how considerations of justice should aVect individuals until the principles for the basic structure are in hand. As we will see, these points bear directly on the objections raised by Cohen. Cohen’s critique of Rawls’s focus on the basic structure begins with the observation that Rawls’s diVerence principle is ambiguous as between a ‘strict’ reading and a ‘lax’ reading. The diVerence principle says ‘that inequalities are just if and only if they are necessary to make the worst-oV people in society better oV than they would otherwise be’ (Cohen 1997: 5). The ambiguity to which Cohen calls attention concerns the interpretation that is given to the idea of a ‘necessary inequality’. Suppose that, in order to maximize the position of the worst-oV group, talented people are oVered economic incentives to induce them to work more productively. Assuming that the talented would be unwilling to do this work unless they were given these incentives, are we to suppose that the diVerence principle treats the resulting inequalities as necessary in order to maximize the position of the worst-oV people, and hence as just? According to the strict reading, the answer is no. Inequalities are necessary, in the relevant sense, only when, without them, the better paid would be unable to work as productively as they could have with extra income. In the case just described, the talented are not unable to work as productively without extra income, they are merely unwilling to do so. According to the lax reading, however, the answer is yes. Given that the talented will not in fact work as productively unless they are given extra income, the inequalities that result from giving them that income are indeed necessary in order to maximize the position of those who have least. Cohen believes that there are strands in Rawls’s work that support each of these incompatible interpretations, but he thinks that Rawls is suYciently committed to the justice of economic incentives that the lax reading must be taken to represent his oYcial position. Yet Cohen argues that the lax diVerence principle is not a principle of justice at all, as opposed to a principle

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of expediency, and that it is in any case incompatible with Rawls’s own aspiration to provide a conception of justice for a well-ordered society in which all citizens have a strong and normally eVective sense of justice that leads them willingly and wholeheartedly to support the conception of justice that regulates their social institutions. The talented members of a wellordered Rawlsian society could not claim with a straight face that it was necessary to pay them extra to induce them to work more productively, since the only thing that could make this necessary would be a decision on their part not to work productively for less money, and that is not a decision they could defend compatibly with a wholehearted commitment to the diVerence principle itself. Cohen concludes from this that, assuming the diVerence principle is meant to regulate ‘the aVairs of a society whose members themselves accept that principle’ (ibid. 6), it must be given a strict, rather than a lax, reading. Moreover, he thinks that the principle so construed justiWes ‘hardly any serious inequality’ (ibid.), for it is almost never true that the talented could not work just as productively without extra remuneration as they do with such remuneration. He also thinks it follows from his argument that ‘the justice of a society is not exclusively a function of its legislative structure, of its legally imperative rules, but also of the choices people make within those rules’ (ibid. 9). These choices must be ‘appropriately informed by the diVerence principle’ (ibid.). Or, as he says elsewhere, a ‘government cannot by itself implement’ (1992: 315) the strict diVerence principle. In order for ‘the strict diVerence principle to prevail, there needs to be an ethos informed by the principle in society at large’ (ibid.). Cohen (1997) imagines that Rawlsians would reply to his argument by insisting that the diVerence principle is meant to apply only to the basic structure, and not to choices made by individuals within that structure. Although individuals must uphold the distributive principles governing the basic structure, this means only that they must willingly abide by the economic rules established by the structure. The principles need not, in addition, inform the choices that people make within the basic structure, from among those options not prohibited by the rules. Within the basic structure, the principles simply do not apply, and so they do not exclude purely selfinterested economic decisions by individuals. Indeed, the principles are compatible with ‘unlimited self-seekingness in the economic choices of well-placed people’ (ibid. 16). Cohen labels this the ‘basic structure objection’ (BSO) to his argument, and he oVers two rejoinders. First, he says that the objection is inconsistent with a variety of comments Rawls makes about the role of principles of justice within the lives of citizens in a well-ordered society. Second, he asserts that there is

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another ambiguity in Rawls’s position, an ambiguity in the concept of the basic structure itself. Sometimes Rawls seems to imply that the basic structure comprises only legally coercive social institutions, while at other times he says that institutions like the family, which, according to Cohen, depend less on law than on ‘convention, usage, and expectation’ (ibid. 19), are also included within it. Cohen argues that if non-coercive practices and institutions are included, the BSO fails, because the behaviour of individuals is constitutive of such practices and institutions. This implies that individual conduct cannot be excluded from the ambit of the principles of justice that apply to noncoercive structures. But if, on the other hand, Rawls limits the basic structure to legally coercive institutions, he contradicts his own rationale for treating the basic structure as the primary subject of justice, which has to do with the profound and far-reaching eVects of that structure. Non-coercive practices and institutions have eVects that are just as profound as the eVects produced by coercive institutions, Cohen argues, so Rawls has no non-arbitrary grounds for excluding them. Cohen concludes that there is no way of disambiguating the concept of the basic structure that can vindicate the BSO. Furthermore, he says, the ‘fatal ambiguity’ of that concept constitutes ‘a major fault line in the Rawlsian architectonic [which] not only wrecks the basic structure objection but also produces a dilemma for Rawls’s view of the basic structure from which I can imagine no way out’ (ibid. 18). Cohen’s masterful arguments expose two highly signiWcant areas of unclarity in Rawls’s theory. It is indeed unclear whether the diVerence principle should be given a strict or a lax interpretation, or perhaps some other interpretation altogether. It is also unclear how exactly Rawls understands the basic structure. These are issues of great importance for the interpretation of Rawls’s theory and, in both cases, there are conXicting tendencies in his writing. Nevertheless, I do not believe that Cohen’s arguments suYce to undermine Rawls’s view of the basic structure as the primary subject of justice, nor do I believe that they undermine the two distinctions I have labelled ‘the division of moral labor’ and ‘the institutional division of labor.’ Let me say, to begin with, that I very much doubt whether the BSO, as Cohen formulates it, is an objection that Rawls himself would have oVered in response to Cohen’s arguments against the legitimacy of incentive inequalities. This may seem a surprising thing to say, given Rawls’s undoubted insistence on the primacy of the basic structure. However, the BSO, as Cohen develops it, goes beyond the claim that Rawls’s principles of justice apply primarily to the basic structure. It includes, in addition, the idea that a just society is compatible with ‘unlimited self-seekingness in the economic choices of well-placed people’ (ibid. 16). I doubt that Rawls would have taken

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this position. This is partly because, as we have seen and as Cohen himself emphasizes, there are many passages in Rawls’s writing that are inconsistent with it. For example, it is very diYcult to square the BSO, as Cohen formulates it, with Rawls’s emphasis on the importance of the sense of justice and with the elaborate moral psychology that he develops in Part III of Theory. But there is also a deeper point lying behind the textual counter-evidence. When Cohen rejects the claim that the basic structure is the primary subject of justice, he does so because he associates it with a failure to condemn ‘the selfinterested motivation of market maximizers’ (Cohen 1997: 16). The alternative view with which he contrasts it, and which he himself recommends, is that individual behaviour must be ‘appropriately informed by’ (ibid. 9) the principles that regulate the basic structure. But when Rawls himself proposes the basic structure as subject, he does not say that individuals should be motivated purely by economic self-interest, nor does he contrast his position with the view that the principles of social justice should ‘appropriately inform’ individual conduct. Instead, he contrasts it, in the case of the division of moral labour, with the view—exempliWed by utilitarianism—that a single master principle or theory suYces to regulate both social institutions and individual conduct. He also contrasts it, in the case of the institutional division of labour, with the view that there are feasible principles of individual conduct that do not themselves presuppose principles for the basic structure and that are capable of preserving background justice. Neither of these contrasts implies any endorsement of ‘unlimited self-seekingness’, or any hostility to the idea that individual conduct should be ‘appropriately informed’ by the principles for the basic structure. Rawls does not claim that individual motivation should be entirely unaVected by the principles of social justice, nor do I believe he thinks any such thing. Indeed, as we have seen, one of his explicit reasons for giving primacy to the basic structure has to do with the role of social institutions in ‘creating and fashioning’ (Rawls 1971[1999]: 259[229]) citizens’ wants and aspirations. Just institutions cannot treat existing desires as ‘Wxed or given’ (Rawls 1993: 269); they must instead ‘shape’ those desires in accordance with ‘some view of human good’ (Rawls 1971[1999]: 259[229]) and they must have the aim ‘of discouraging desires that conXict with the principles of justice’ or are ‘incompatible’ with ‘the virtue of justice’ (ibid. 261[230–1]). Of course, as Cohen makes clear, Rawls never squarely confronts the question of how exactly individual economic choices should be informed by the principles of justice, and that is a signiWcant omission. Yet, it is one thing to recognize the signiWcance of the omission, and quite another to conclude that Rawls endorses unlimited self-seekingness or that he wishes to insulate individual motivation from any inXuence by the principles of justice. Neither of these things seems to me to be true. For this reason, I doubt whether Rawls

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would have oVered the BSO, as Cohen has formulated it, in reply to Cohen’s argument against incentive inequalities. In view of these doubts, and in view of the fact that Cohen himself thinks that the BSO fails, it is worth asking whether there are other replies to the incentives argument that might be available to Rawls, and whether those replies would undermine Rawls’s view that the basic structure is the primary subject of justice. To avoid misunderstanding, let me clarify the dialectical position as I understand it and the theoretical option that I wish to investigate. Cohen’s original incentives argument confronts Rawls with the need to disambiguate the diVerence principle in light of the divergent interpretations provided by the lax and strict readings of that principle. Cohen imagines Rawls oVering the BSO as a reply to the incentives argument, but Cohen argues that the ambiguity of the concept of the basic structure not only ‘wrecks the basic structure objection’ but also poses an insuperable diYculty for the claim that the basic structure is the primary subject of justice. Cohen thus implies that Rawls would have to give up that claim even if he did not oVer the BSO in reply to the incentives argument. It is the truth of this last contention that I wish to explore. Suppose, then, that Rawls declined to oVer the BSO in reply to Cohen. What other response to the incentives argument might be available to him? Recall, to begin with, that in Cohen’s view, the correct interpretation of the diVerence principle, given Rawls’s characterization of his enterprise, is the strict version, which, according to Cohen, licenses little or no inequality. As we have seen, however, Cohen believes that, while there is support for both interpretations of the principle in Rawls’s texts, Rawls’s commitment to incentives is suYciently fundamental that he must be assumed to endorse the lax version. Now let me observe, parenthetically, that I am not convinced that Rawls’s endorsement of incentives is as clear and unqualiWed as Cohen takes it to be, nor do I fully understand the basis on which Cohen, when confronted with what he sees as a conXict between passages in Rawls that support a lax reading and those that support a strict reading, decides that Rawls’s actual position should be identiWed with the pro-lax passages. A similar point—or perhaps it is exactly the same point—applies to Cohen’s handling of the conXict he perceives between passages in Rawls that support the BSO and those that are inconsistent with it. However, I will not pursue this issue. Instead, I want to call attention to a feature of Cohen’s presentation that seems to me even more puzzling. Suppose that Rawls—inXuenced by Cohen’s arguments, perhaps—were to endorse the strict diVerence principle as the correct principle of justice to regulate the basic structure of society, which we may here take, counterfactually, to include only the coercive structure of its economic institutions. It

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follows that, in a well-ordered Rawlsian society, just economic institutions would permit only those inequalities that were necessary, independently of people’s choices, to maximize the position of the worst-oV group. The choicedependent incentive inequalities that the lax principle allows would not be provided to the talented in such a society and, if Cohen is correct, this means that there would be little or no inequality in that society. And this would be the result of the conWguration of the coercive basic structure alone. Why, then, does Cohen conclude that ‘the government cannot by itself implement’ the strict diVerence principle, or that in order for that principle ‘to prevail, there needs to be an ethos informed by the principle in society at large’ (Cohen 1992: 315)? The answer, it seems to me, is obscure. It may well be true that, if the coercive structure were regulated by the lax principle, then economic equality would be achieved only if talented citizens had an egalitarian ethos, in consequence of which they did not demand special incentives to work productively. But it does not follow that, if the coercive structure were regulated by the strict principle, the achievement of equality would depend on such an ethos. Nor, so far as I can see, does Cohen ever argue for this conclusion. Indeed, he never seriously considers what it would mean for the coercive structure to be regulated by the strict principle. Instead, what he says is the following: if we begin with an uninterpreted statement of the [diVerence] principle, where it is ambiguous across strict and lax interpretations, and we suppose that all of the people in the society it governs comply wholeheartedly with it, by which I mean that they are concerned to ensure that their own conduct is just in the sense deWned by the principle, then what they comply with is the principle in its strict interpretation. In such a society, the diVerence principle aVects the motivation of citizens in economic life. It controls their expectations about remuneration, that is, what they will regard as acceptable pay for the posts they are invited to Wll. It is generally thought that the diVerence principle would be used by government to modify the eVect of choices which are not themselves inXuenced by the principle, but, so I claim, in a society of wholehearted commitment to the principle, there cannot be so stark a contrast between public and private choice. Instead, citizens want their own economic behavior to satisfy the principle, and they help to sustain a moral climate in which others want the same. . . . [M]uch of what Rawls says commits him to such an understanding of the diVerence principle, even though his approval of incentives embodies a rejection of that understanding, since approving of incentives means accepting the diVerence principle in its lax form, and in that form it can be satisWed in a society where it has no direct inXuence on economic motivation. (ibid. 312)

Now, leaving aside any worries one might have about what exactly is involved in wholehearted compliance with an ambiguous principle, we may grant the point made in the Wrst paragraph: that if everyone were motivated by an ethos of justice to comply wholeheartedly with the uninterpreted

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diVerence principle, they would not demand incentive inequalities, and in that sense what they would comply with is the strict version. We may also grant that, in a society in which an ethos of justice prevailed, people would want their own behaviour to satisfy the diVerence principle, and in that sense there would not be a stark contrast between public and private choice. Still, it does not follow from either of these points singly, or from both of them taken together, that a government could not implement the strict diVerence principle by itself. In fact, it is not at all obvious why a government could not implement that principle, by simply prohibiting incentive payments, or taxing them at 100% (absent compelling evidence that the recipients could not work as productively in the absence of such payments).4 Of course, if the society in which the government did this were well ordered, citizens would also have a sense of justice leading them wholeheartedly to comply with the strict principle. If, on the other hand, citizens lacked such motivation, then some of the talented might refuse to work as productively as they could.5 But it does not follow from the Wrst of these points that a government could not implement the strict principle by itself. And, notwithstanding the second point, equality would prevail in the society in question, even if some of the talented refused to work as productively as they could. Cohen is therefore mistaken when he says that, in the absence of an ethos of justice, ‘inequalities will obtain that are not necessary to enhance the condition of the worst oV’ (1997: 10). Nor does he establish that the strict principle requires all citizens to be as productive as they could possibly be.6 It is important to be clear about what I take these considerations to show. The main conclusion I am trying to establish is that there is nothing in 4 Cohen mentions the possibility of eliminating all inequality through ‘income taxation which redistributes to fully egalitarian eVect’ (1997: 9), but he does not consider how this bears on the question of whether a government by itself could implement the strict diVerence principle. 5 Indeed, as suggested in the Wnal sentence of this paragraph of text and argued in note 6, even citizens in a well-ordered society who were wholeheartedly motivated to comply with the strict principle might decline to work as productively as they could. 6 It may be suggested that, in order to sustain his conclusion that the government alone could not implement the strict principle, Cohen needs only to show that the principle requires all people to be as productive as they would have been had the incentives allowable under the lax principle been in place. The strict principle so understood would still need an ethos of justice in order to be implemented fully, albeit a (morally if not epistemically) less demanding one than the ethos described earlier in the text. Pogge (2000: 149–52) suggests something like this as an interpretation of Cohen, citing Cohen’s discussion (1995: 171–5). (See also Julius 2003: 349–55.) Although I remain agnostic on this interpretive question, let us suppose for the sake of argument that this is indeed what Cohen believes. What exactly is supposed to support the conclusion that implementation of the strict principle requires such an ethos? As far as I can see, the only argument Cohen gives is that, absent the ethos, inequalities will prevail that are not

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Cohen’s challenge to the legitimacy of incentive inequalities per se that undermines Rawls’s claim that the basic structure is the primary subject of justice. Cohen imagines Rawls responding to his challenge by oVering the ‘basic structure objection’, and in reply Cohen argues that that objection cannot survive the attempt to disambiguate the concept of the basic structure. But if, instead of oVering the BSO in response to Cohen’s original challenge, Rawls were to aYrm the strict version as the correct interpretation of the diVerence principle, nothing in Cohen’s argument about the implications of the strict principle establishes that Rawls’s emphasis on the basic structure would then be unsustainable. Cohen thinks otherwise because he never actually considers the implications of having the (coercive) basic structure regulated by the strict principle. He only considers the implications of people having a wholehearted commitment to the diVerence principle in circumstances where the coercive structure is regulated by either (a) the lax principle; or (b) the uninterpreted, ambiguous principle. There are two possible misunderstandings that I particularly want to forestall. First, I am not denying that, in a society that was just and wellordered by Rawls’s lights, and whose coercive economic institutions were regulated by the strict principle, people would have a strong sense of justice, in consequence of which they would be strongly and wholeheartedly motivated to comply with the strict principle. In this sense, they would have an ethos of justice. What I am denying is that this fact undermines Rawls’s claim that the basic structure is the primary subject of justice. I deny this for two necessary to enhance the position of the worst oV and that cannot, therefore, be produced compatibly with a wholehearted commitment to the diVerence principle. As we have seen, however, this simply is not true of a society whose coercive structure is regulated by the strict principle. Nor is it clear why the content of the productive ethos that is required by the strict principle should be determined by the choices that people would make under a regime regulated by the (discredited) lax principle. Why shouldn’t people living under a strict regime instead regard those counterfactual choices as being symptomatic of the distorting eVects of incentive payments, and decide that they were unwilling to sacriWce other goals and values to achieve greater productivity, even though greater productivity would increase the size of each person’s (equal) share of primary goods? More generally, the diVerence principle says that inequalities must maximize the position of the worst-oV group. It does not specify any particular level of equality as the one that justice requires in circumstances where there are no justiWed inequalities. To be sure, the parties in the original position are said to be motivated in choosing principles of justice by a desire to secure the largest possible shares of primary goods for themselves. Yet the diVerence principle as Rawls formulates it does not require that equal shares be maximized, and he emphasizes that citizens in real life may well lack the maximizing motivation that he ascribes to the parties. Indeed, he asks: ‘[W]hy wouldn’t it turn out that a society that follows the principles of justice allows, and even encourages, associations in which individuals abjure the desire for wealth beyond some amount appropriate for their common purposes?’ (1999: 273). In any case, it would fundamentally transform the thrust of Cohen’s critique if he were to argue that an egalitarian ethos is needed not to avoid unjust inequalities but rather to ensure that equal shares are as high as they could possibly be.

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reasons: (a) an ethos of justice would not actually be necessary to produce an economic distribution satisfying the strict principle—such a distribution could be achieved by the coercive structure alone; and (b) Rawls’s claim that the basic structure is primary was never meant to exclude an ethos of justice— even if he is not clear about the precise content and contours of such an ethos—nor is it incompatible with the idea that the diVerence principle should inXuence people’s motivations. Second, I am not claiming that Rawls would or should endorse the strict diVerence principle. There are other possible replies Rawls might make to the incentives argument. For example, Joshua Cohen has suggested that rather than ‘introducing qualiWcations or limiting conditions in the statement of the principles [of justice] themselves’ (2002: 372), Rawls’s ‘alternative strategy is to argue in eVect that the objectionable incentive inequalities will not arise and therefore do not command separate treatment in an account of justice’ (ibid.). Such inequalities will not arise, according to this interpretation, because the diVerence principle as stated—understood non-strictly—requires institutions to maximize the position of the worst-oV group, and one thing that institutions may need to do in order to achieve this aim is precisely to generate a social ethos that limits the incentive demands that people make. This reply too preserves Rawls’s view that the basic structure is the primary subject of justice while denying that justice condones unlimited self-seekingness in the economic choices of individual agents.7 Moreover, as I will soon explain, G. A. Cohen himself provides reasons for doubting whether the strict principle is acceptable, and his doubts point to still another possible reply to the incentives argument. Since my aim is not to evaluate the incentives argument per se, but rather to assess its implications for Rawls’s claim about the primacy of the basic structure, I can aVord to remain agnostic about what Rawls’s best reply to that argument is. The point of my discussion has simply been this: since one of the options with which the incentives argument presents Rawls is to endorse the strict principle, and since doing this would not require him to abandon the claim that the basic structure is the 7 One aspect of Joshua Cohen’s position strikes me as less clear than it might be. On the one hand, he says that what he calls the ‘ultralax’ diVerence principle, which countenances all incentives that are necessary in an intention-relative sense, ‘is not at all plausible as a requirement of justice’ (Cohen 2002: 371), and that Rawlsian justice does not condone it. Yet he also says that ‘there is nothing in the formulation of the principles of justice as fairness that directly condemns the inequalities’ (ibid. 372) that the ultralax principle permits. As I have noted in the text, he thinks that Rawls hopes to exclude such inequalities without modifying the principles of justice themselves. But this seems to imply that the diVerence principle, as Rawls formulates it, just is the ultralax principle. This sits uneasily with the judgement that the ultralax principle is not at all plausible as a requirement of justice, even if we suppose that ‘the objectionable inequalities will not arise’ in a Rawlsian society.

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primary subject of justice, it follows that the incentives argument does not by itself undermine that claim. Thus, to repeat, there is nothing in Cohen’s challenge to the legitimacy of incentive inequalities per se that undermines Rawls’s claim that the basic structure is the primary subject of justice.8 Nor is it apparent that Rawls needs to rely on the BSO in order to respond to Cohen’s challenge. So even if, as Cohen argues, the ambiguity of the concept of the basic structure is fatal to that objection, this may not by itself pose a diYculty for Rawls. Still, it may seem that, whether or not Rawls relies on the BSO, any ambiguity in the concept of the basic structure cannot help but jeopardize his claim that the basic structure is the primary subject of justice. Cohen goes even further when he says that, in addition to undermining the BSO, the ambiguity of the concept ‘produces a dilemma for Rawls’s view of the basic structure from which I can imagine no way out’ (1997: 18). Clearly, then, it is important to consider the implications for Rawls’s project of the ambiguity that Cohen alleges. Before doing that, however, let me digress brieXy to explain why I said in the previous paragraph that Cohen himself provides reasons for doubting the acceptability of the strict diVerence principle. As we have seen, Cohen’s conWdence that Rawls should reject the lax interpretation of the principle derives from his conviction that people who were genuinely committed to the diVerence principle would have no justiWcation for demanding special incentives to work productively. Yet it is a curiosity of Cohen’s ‘Incentives’ paper (1992) that he himself suggests the basis for such a justiWcation. For he agrees with the view, which, as it happens, he attributes to me, that ‘every person has a right to pursue self-interest to some reasonable extent ’ (ibid. 302, emphasis in original; see also Cohen 2000: 206, n. 24). He denies, rightly in my view, that such a prerogative could ‘justify the range of inequality, the extremes of wealth and poverty that actually obtain’ (1992: 303) in western societies. But he seems to allow that a prerogative of the sort he endorses might justify some more modest degree of inequality. Within limits, in other words, one might justify one’s demand for incentives by invoking one’s prerogative to advance one’s own interest. When Cohen considers the implications of this point for the interpretation of the diVerence principle, what he says is that the legitimacy of a prerogative justiWcation for modest incentives does not vindicate the lax diVerence principle, since the lax principle might justify incentive payments that were either more or less generous than what a reasonable prerogative would allow. Granting this point, however, the natural next question is whether the endorsement of prerogatives suggests still another interpretation of the diVerence principle, 8 Thus, I disagree with the argument developed by Murphy (1999), at 267–9.

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one that does not coincide with either the lax version or the strict version. Cohen comes closest to addressing this question when he says, in a footnote, that the strict version is the only alternative to the lax version: ‘there is no third way of playing the diVerence principle game’. He then adds: ‘A further alternative would be the strict diVerence principle constrained by an agentcentered prerogative. But the added constraint modiWes—it does not interpret—the diVerence principle’ (ibid. 315n.). I Wnd this reply unpersuasive. As we have seen, the strict and lax readings of the diVerence principle are distinguished by their diVering interpretations of the word ‘necessary’, as it occurs in that principle. The lax reading allows that inequalities can be justiWed by what Cohen calls ‘intention-relative’ necessities, whereas the strict reading countenances only ‘intention-independent necessities’ (ibid. 311). But why should the notions of intention-relativity and intention-independence exhaust the Weld of possible interpretations of ‘necessary’? Why couldn’t a supporter of the diVerence principle who was impressed by Cohen’s endorsement of an agent-centred prerogative say that inequality-generating incentives should be deemed necessary, in the relevant sense, if and only if either (a) the talented are unable to work as productively without them; or (b) the insistence of the talented on such incentives falls within the scope of their ‘right to pursue self-interest to some reasonable extent’? On this reading, the diVerence principle countenances both intention-independent necessities and those intention-relative necessities that are morally justiWable. Whether this reading is best described as a ‘modiWcation’ or an ‘interpretation’ of the diVerence principle, the fact remains that it is another possible version of that principle: more tolerant of incentives than the strict reading, but less tolerant of them than the lax reading. We might call it the moderate reading. I do not claim that Rawls himself had this reading in mind. But I do think that the availability of the moderate reading casts doubt on the idea that, in light of Cohen’s arguments, Rawls should have accepted the strict reading. Indeed, if one agrees both with Cohen’s criticism of the lax principle and with his endorsement of an agent-centred prerogative, then it would seem to be the moderate reading, rather than the strict reading, that one has most reason to recommend. Given that Cohen himself satisWes the conditions set out in the antecedent of the previous sentence, I do not understand why he fails to take this reading seriously.9 9 David Estlund has also emphasized the signiWcance of Cohen’s endorsement of agentcentred prerogatives, pointing out that such prerogatives must be understood to legitimate more than just the pursuit of self-interest narrowly understood. Estlund argues that ‘inequality producing incentives will still be required by many conscientious citizens exercising certain prerogatives that Cohen must allow’ (1998: 101). Andrew Williams (1998: sect. 6) suggests that an agent-centred prerogative cannot be incorporated into a theory of justice for the basic structure because it violates the ‘publicity

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Let me now return to the alleged ambiguity of the concept of the basic structure and its implications for Rawls’s argument. As we have seen, Cohen claims both that this ambiguity ‘wrecks’ the BSO and that it poses an insuperable diYculty for Rawls’s view of the subject matter of justice. It is the second of these claims that we are now considering. Cohen argues that Rawls faces a dilemma. If the basic structure is limited to coercive institutions, then the focus on that structure is arbitrary, given that Rawls’s stated reason for this focus has to do with the profound eVects of the basic structure, and non-coercive institutions have eVects that are just as profound as coercive institutions. If, on the other hand, the basic structure includes non-coercive practices and institutions, then it becomes untenable to exclude individual conduct from the ambit of justice, for individual behaviour is constitutive of non-coercive institutional structure. Before attempting directly to assess the force of this argument, let me mention three respects in which Cohen’s presentation of the argument is either incomplete or unclear. First, when formulating the Wrst horn of his dilemma, Cohen acknowledges only one of Rawls’s stated reasons for treating the basic structure as the primary subject of justice: namely, the profound eVects of that structure on people’s life prospects. ‘[W]hat other rationale’, he asks, ‘could there be for calling it the primary subject of justice?’ (1997: 21). This rhetorical question overlooks the two other reasons Rawls cites: (a) the fact that the basic structure shapes people’s wants and aspirations, which should not be treated as Wxed or given; and (b) the fact that a just basic structure is necessary to ensure the background justice of economic transactions, since no feasible rules of individual conduct are adequate for that task. Since Cohen neglects these considerations, his claim that a focus on coercive structure would be arbitrary is, at best, premature. To defend it fully, he would need to establish that all three of Rawls’s reasons apply to non-coercive structure as well.10 Second, Cohen’s allegation that Rawls’s concept of the basic structure is ambiguous relies on the distinction Cohen draws between coercive and noncoercive institutions. In the case of coercive institutional structure, Cohen says, we can distinguish between the structure itself and individual actions that occur within it. In contrast, no such distinction can be drawn in the case of non-coercive structure, for ‘behavior is constitutive of non-coercive structure’ (ibid. 20). But the coercive/non-coercive distinction is itself not altogether clear, for implicit in Cohen’s argument (and in the account I have condition’ on which Rawls insists. However, this cannot be Cohen’s view because he rejects the publicity condition that Rawls and Williams favour (see Cohen 2000: 212–13, n. 36). 10 This point also bears on the eVectiveness of Cohen’s argument against the basic structure objection.

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so far given of it) are two diVerent ways of drawing the distinction.11 On one interpretation, it is a distinction between two kinds of institution: an institution is to be classiWed as coercive if its structure is legally coercive, and it is to be classiWed as non-coercive if its structure depends ‘far less on law than on convention, usage, and expectation’ (ibid. 19). Cohen says that the family is ‘a signal example’ of a non-coercive institution in this sense. On the second interpretation, the distinction is not between two kinds of institution but rather between two kinds of ‘structure’, and one and the same institution may comprise both coercive and non-coercive structure. This second formulation creates no presumption, as the Wrst one does, that each institution will be classiWable either as coercive or as non-coercive. Cohen suggests both interpretations when he says, in characterizing the supposed ambiguity of Rawls’s account of the basic structure: ‘Sometimes it appears that coercive (in the legal sense) institutions exhaust it, or, better, that institutions belong to it only insofar as they are (legally) coercive’ (ibid. 18; emphasis added). The diVerence between the two interpretations is relevant for the following reason. On the Wrst interpretation, it is debatable whether Cohen is correct in saying that the family counts as a non-coercive institution. After all, there is a large body of family law, and all societies engage in the legal regulation of marriage, adoption, divorce, child custody, child support, alimony, parental responsibility, and the like. There is, for example, nothing non-coercive about the practice of restricting marriage to a pair of adults consisting of one man and one woman. To be sure, the structure of the family may also be taken to include uncoerced patterns of individual conduct and ‘socially constructed expectations’ (ibid. 20), but the same is true of putatively coercive institutions, so the grounds for classifying the family as non-coercive remain unclear on this interpretation. Perhaps, then, Cohen’s argument is best understood as relying on the second interpretation. On this interpretation, the distinction between coercive and non-coercive structure is not a distinction between two diVerent kinds of institution: those that are coercive and those that are not. Instead, the idea is that many institutions, of which both the family and the market economy are important examples, have frameworks that are partly coercive but are also partly constituted by non-mandatory conventions and practices. Cohen may be interpreted as arguing that, inasmuch as some of these non-mandatory practices seem to fall clearly within the purview of

11 Cohen himself concedes that it may not be a sharp one, because coercive structures may also not be fully separable from individual behaviour. In other words, the characterization he gives of non-coercive structure may apply equally to putatively coercive structure. Cohen says that he can contemplate this idea with equanimity because, if true, it only reinforces his claim that justice cannot plausibly be thought to apply exclusively to structures and not to individual actions. However, the unclarity to which I call attention in the text is independent of this point.

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justice, Rawls cannot without arbitrariness exclude them from the basic structure or limit that structure solely to the coercive elements of an institution’s framework. This may indeed be the more plausible interpretation of Cohen’s argument, and it certainly presents a challenge to a purely coercive understanding of the basic structure. At the same time, however, it also implies that such an understanding need not exclude the family from the basic structure. In other words, if Rawls wants to say that institutions belong to the basic structure ‘only insofar as they are (legally) coercive’, then he can say that of the family as well as any other institution, for much of family structure is legally coercive. Although Cohen does not explicitly deny this point, he does not explicitly acknowledge it either.12 As I will explain below, I think it is a point of some importance. For now, suYce it to say that, although Cohen may still argue that it is arbitrary to include only coercive structure within the basic structure, his argument cannot legitimately derive any support from the thought that a purely coercive speciWcation Xatly excludes the family from the basic structure, for that simply is not true. Finally, the members of any human society will inevitably have developed many informal practices and shared expectations, and it will be possible to discern patterns of many kinds in the choices they make. These practices and patterns will diVer considerably in their social visibility, internal uniformity, invariance across diVerent societies, and robustness in the face of various forms of change, and the individual choices they subsume will diVer in their degrees of self-consciousness, perceived dependence on social values and norms, and amenability to modiWcation through incentives and pressures of various kinds. In pressing his ad hominem case for the inclusion of ‘informal 12 Furthermore, the following passage, in which Cohen describes what he sees as Rawls’s noncoercive speciWcation of the basic structure, encourages us to overlook the point: Rawls often says that the basic structure consists of the major social institutions, and he does not put a particular accent on coercion when he announces that speciWcation of the basic structure. In this second reading of what it is, institutions belong to the basic structure whose structuring can depend far less on law than on convention, usage, and expectation: a signal example is the family, which Rawls sometimes includes in the basic structure and sometimes does not. But once the line is crossed, from coercive ordering to the non-coercive ordering of society by rules and conventions of accepted practice, then the ambit of justice can no longer exclude chosen behavior, since the usages which constitute informal structure (think, again, of the family) are bound up with the customary actions of people. (1997: 19–20) In eVect, this passage equivocates between the two interpretations of the coercive/non-coercive distinction. It begins by classifying the family as a non-coercive institution because it depends ‘less on law than on convention, usage, and expectation’, and concludes that the non-coercive elements of family structure must be included within the basic structure if the institution of the family is included at all. This overlooks the fact that the family might be included within the basic structure only ‘insofar as it is legally coercive’. It is not true that the coercive elements of family structure can be included only if the non-coercive elements are included as well.

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structure’ within the scope of Rawls’s principles of justice, Cohen does not distinguish among the many important respects in which informal practices and patterns may diVer from one another. Some of Cohen’s critics have pointed out that the two examples of informal structure that he considers— namely, patterns of individual choice within the market economy and the family—diVer from each other in ways that may well aVect the relative strength of the arguments for including each of them respectively within the ambit of Rawlsian principles (see Murphy 1999: 269; Williams 1998: 242–3). Whether or not this is so, there is clearly a great deal more that needs to be said about the varieties of informal structure and about the character of the norms that are appropriate to patterns and practices of various kinds. Having mentioned these respects in which Cohen’s argument seems to me in need of further development, I will now set them aside. I will assume for the sake of argument that, as Cohen says, Rawls’s concept of the basic structure is ambiguous as between an interpretation that limits it to coercive structure and one that includes non-coercive structure as well. The question I want to consider now is whether this ambiguity undermines Rawls’s claim that the basic structure is the primary subject of justice. The ambiguity will have this undermining eVect if—but only if—Rawls’s claim fails however the concept is disambiguated. Of course, it would in any case be desirable to resolve any ambiguity the concept may display. But unless there is no way of disambiguating it that is compatible with Rawls’s claim about the primacy of the basic structure, the ambiguity of the concept will not undermine that claim. So suppose, to begin with, that Rawls were to insist on a purely coercive speciWcation of the basic structure. As we have seen, Cohen thinks that this would be arbitrarily narrow, because it is not only the coercive structure that has profound eVects on people’s life prospects. However, although I am not sure that Rawls would or should construe the basic structure in purely coercive terms, there is one obvious reason for doing so that does not seem arbitrary, namely, that the coercive structure is coercive. Coercion always requires justiWcation, and this requirement is particularly urgent with respect to the coercive political power of the state. In Rawls’s view, a society is to be conceived of as a fair system of cooperation among free and equal people. Any such system will require the coercive enforcement of the fundamental terms of cooperation. But given the status of individuals as free and equal, the establishment of coercive institutions poses a special justiWcatory problem. The role of principles of justice, as Rawls understands it, is to specify fair terms of cooperation, terms that free and equal persons themselves could endorse. On this view, the justice of coercive institutions, if it can be secured, provides a solution to the justiWcatory problem posed by the coercive

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character of those institutions. The importance of achieving such a solution cannot be underestimated, for the use of the coercive power of the state to impose unjust social arrangements is a great evil, greatly to be feared. However unjust or otherwise unacceptable a social arrangement may be, the coercive enforcement of such arrangements is even worse. Ironically, one reason why this is so emerges from Cohen’s arguments against a purely coercive speciWcation of the basic structure. In the case of non-coercive practices, Cohen writes, ‘people do have choices: it is, indeed, only their choices that reproduce [non-coercive] social practices; and some, moreover, choose against the grain of nurture, habit, and self-interest’ (1997: 25). Thus, if a non-coercive practice is unjust, there is room for an ‘incremental process’ in which a small number of ‘moral pioneers’ initiate a virtuous cycle: they revise their own unjust behaviour, and this aVects the expectations of others, who in turn change their behaviour, which leads to still more widespread changes in expectation, and so on. Eventually the unjust practice simply disappears through the uncoerced, everyday choices of individuals (ibid. 26). But in the case of coercive structure, no such process is available because, Cohen says, ‘coercive structure arises independently of people’s quotidian choices’ (ibid. 20). This reveals one respect in which the eVects of coercive structure are, pace Cohen, more ‘profound’ than those of non-coercive structure: they are more insulated against the possibility of change through ordinary individual choices. For this reason among others, it does not seem entirely arbitrary to suggest that the basic structure is limited to ‘the broad coercive outline of society’ (ibid. 19). It is worth noting, moreover, that a purely coercive speciWcation of the basic structure need not be nearly as tolerant as Cohen suggests of sexist patterns within the family. First, as we have seen, much of family structure is legally coercive. It would therefore be included within the basic structure under a purely coercive speciWcation and directly regulated by the principles of justice. Second, as we have also seen, one of the functions of just social institutions is to shape individuals’ characters in such a way as to discourage desires and motivations that are incompatible with justice. Assuming that the principles of justice that apply to the coercive structure of the family are egalitarian in their content, it follows that just coercive institutions will also seek to discourage wants and aspirations that are inconsistent with gender equality. Nor does it seem implausible that they should have this eVect. Cohen says that ‘sexist family structure is consistent with sex-neutral family law’ (ibid. 22). As a logical matter, perhaps. But the extent to which the two can in fact coexist is an empirical issue, which Cohen does not investigate. Moreover, the relevant question for our purposes concerns the extent to which sexist family structure can coexist with genuinely egalitarian family law (which may

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or may not be sex-neutral). If family law were thoroughly egalitarian, and if norms of gender equality pervaded other areas of the law that have served to enforce gender diVerences, it is far from obvious to me that the egregious sexist patterns that Cohen cites could indeed survive and Xourish. Just as Cohen underestimates the degree of economic equality that could be achieved if the coercive basic structure were regulated by the strict, rather than the lax, diVerence principle, so too he may underestimate the degree of gender equality that could be achieved if the coercive structure were regulated by genuinely egalitarian norms. Despite Cohen’s arguments, then, I am not persuaded that a purely coercive speciWcation would be arbitrarily narrow or, a fortiori, that the arbitrariness of such a speciWcation would undermine Rawls’s claim that the basic structure is the primary subject of justice. But let us suppose, for the sake of argument, that Cohen is right about this. Let us suppose that, in order to avoid arbitrariness, the basic structure must be interpreted expansively to include not only coercive institutions but also some non-coercive institutions and practices.13 Assuming that this is correct, does it undermine Rawls’s claim about the subject matter of justice? Note that it does not follow from this assumption that there is no distinction to be drawn between the expanded basic structure and individual choices made within that structure. Even if the non-coercive institutions that are part of the expanded structure are constituted by individual choices, the structure also comprises coercive institutions that are not so constituted.14 Furthermore, there are, presumably, many individual actions that are not constitutive of any of the non-coercive institutions that are candidates for inclusion in the basic structure. So even if the basic structure, properly understood, includes some non-coercive institutions, it does not comprise all or only individual conduct, and it is still possible to distinguish between the basic structure and choices made within that structure. Moreover, there may still be good reasons for treating the (expanded) basic structure as the primary subject of justice. For it may still be true that: 1. the basic structure so understood has profound eVects on people and their prospects; 2. the background justice of individuals’ economic transactions can be preserved only if the basic structure is regulated by a special set of principles; 13 Here, for ease of exposition, I treat the coercive/non-coercive distinction as a distinction between two types of institution, rather than between two types of structural element within a single institution. Nothing substantive turns on this. 14 This will be true, at any rate, so long as we set aside, as Cohen himself does for most of his discussion, the concession mentioned in fn. 11.

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3. the inXuence of the basic structure on human wants and aspirations is acceptable only if the structure satisWes those principles; 4. the principles do not constitute appropriate guides to every type of individual decision; 5. there are other values and norms that should properly inXuence individual conduct in certain areas; and 6. the correct principles of justice for individuals depend on the correct principles of justice for the basic structure. In short, the inclusion of non-coercive institutions within the basic structure would perhaps be fatal to the idea, which I take Rawls in any case to reject, that the principles of justice should have no inXuence on individual motivation or conduct; however, it would not undermine the Rawlsian claim that, given the distinctive functions of the basic structure, the principles for regulating that structure (including those individual choices and actions that may be constitutive of parts of it) are of primary importance from the standpoint of justice. I have been examining Cohen’s charge that the ambiguity of the concept of the basic structure undermines Rawls’s claim about the subject matter of justice. I have argued that, in so far as the distinction between coercive and non-coercive institutions is clear, there are at least some considerations that count in favour of a purely coercive speciWcation of the basic structure, so the claim that such a speciWcation would be arbitrarily narrow has not been established. If that claim proves to be compelling, however, then non-coercive practices and institutions can be included within the basic structure, where appropriate, without jeopardizing the view that the basic structure is the primary subject of justice. Let me conclude with a brief summary of the overall argument of this chapter. Cohen’s challenge to the legitimacy of economic incentives exposes an indeterminacy in the diVerence principle, an indeterminacy whose resolution is crucial if the content and implications of that principle are to be clear. Yet there are a number of diVerent ways in which Rawls might respond to the incentives challenge. I doubt whether he would respond by oVering what Cohen calls the ‘basic structure objection’ , and the other responses available to him are all compatible with his claim that the basic structure is the primary subject of justice. Thus, the incentives challenge does not by itself suYce to undermine that claim. It is true that Rawls does not demarcate precisely the contours of the basic structure, but this fact also does not undermine his claim that the basic structure is the primary subject of justice. Although it is clearly desirable to clarify the scope of the basic structure, there is no reason to think that this cannot be done consistently with Rawls’s claim about the subject matter of justice.

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As I indicated at the outset, my ultimate aim in this chapter has not been to interpret or defend Rawls, but rather to consider the merits of an emphasis on the basic structure. Although I have not established that the basic structure is the primary subject of justice, I have tried to show that Cohen’s arguments do not defeat this view. Indeed, once one appreciates Rawls’s reasons for emphasizing the basic structure, and once one recognizes that such an emphasis does not require one to endorse the lax diVerence principle or to condone ‘unlimited self-seekingness in the economic choices of well-placed people’, it is not clear to me what residual reason Cohen himself has for resisting this emphasis. I do not believe that he would reject the pluralism about value to which ‘the division of moral labor’ is responsive. His endorsement of an agent-centred prerogative seems to involve a tacit acknowledgement of the plurality of values, and elsewhere he (2003: 244–5) has directly embraced a form of pluralism.15 Similarly, I would be surprised if he were to dispute the importance of securing background justice, which is what motivates Rawls’s call for an ‘institutional division of labor’. Nor do I imagine that Cohen would disagree with Rawls about the role of the basic structure in shaping people’s wants and aspirations. At the very least, we can say this: once the claim that the basic structure is the primary subject of justice is decoupled from the idea that justice condones unlimited self-seeking behaviour, the considerations that count in its favour need to be evaluated in their own right. As far as I can see, the arguments of Cohen that I have discussed in this chapter do little to diminish the force of those considerations.

REFERENCES Cohen, G. A. (1992). ‘Incentives, Inequality, and Community’, in G. B. Peterson (ed.), The Tanner Lectures on Human Values, vol. 13. Salt Lake City, UT: University of Utah Press. —— (1995). ‘The Pareto Argument for Inequality’, Social Philosophy and Policy, 12.

15 ‘Justice is not the only value that calls for (appropriately balanced) implementation: other principles, sometimes competing with justice, must also be variously pursued and honored’ (Cohen 2003: 244–5). Julius (2003: 344–5) says that ‘monists’ can accept an agent-centred prerogative. But this is because monism, as he understands it, is compatible with the existence of multiple values; it insists only that individuals have some reason to promote distributive justice. But this is as much as to say that ‘monism’ in his sense is compatible with the pluralism about value to which the division of moral labour is responsive.

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—— (1997). ‘Where the Action Is: On the Site of Distributive Justice’, Philosophy & Public AVairs, 26. —— (2000). If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Harvard University Press. —— (2003). ‘Facts and Principles’, Philosophy & Public AVairs, 31. Cohen, J. (2002). ‘Taking People As They Are?’, Philosophy & Public AVairs, 30. Estlund, D. (1998). ‘Liberty, Equality, and Fraternity in Cohen’s Critique of Rawls’, Journal of Political Philosophy, 6. Julius, A. J. (2003). ‘Basic Structure and the Value of Equality’, Philosophy & Public AVairs, 31. Murphy, L. (1999). ‘Institutions and the Demands of Justice’, Philosophy & Public AVairs, 27. Nagel, T. (1991). Equality and Partiality. New York: Oxford University Press. Pogge, T. (2000). ‘On the Site of Distributive Justice: ReXections on Cohen and Murphy’, Philosophy & Public AVairs, 29. Rawls, J. (1971). A Theory of Justice (rev. edn. 1999). Cambridge, MA: Harvard University Press. —— (1993). Political Liberalism. New York: Columbia University Press. —— (1999). Collected Papers, S. Freeman (ed.). Cambridge, MA: Harvard University Press. —— (2001). Justice As Fairness: A Restatement, E. Kelly (ed.). Cambridge, MA: Harvard University Press. ScheZer, S. (1982). The Rejection of Consequentialism (rev. edn. 1994). Oxford: Clarendon Press. Williams, A. (1998). ‘Incentives, Inequality, and Publicity’, Philosophy & Public AVairs, 27. Williams, B. (1973). ‘A Critique of Utilitarianism’, in J. J. C. Smart and B. Williams (eds.), Utilitarianism For and Against. Cambridge: Cambridge University Press.

7 Choice and Incentive Inequality Susan Hurley

BACKGROUND A ND CONTEXT: THE TALENTED CHOICE DILEMMA According to the familiar incentive inequality argument, inequalities are justiWed if they provide incentives to talented and productive people to work harder in ways that make the worse oV better oV than they would be in the absence of such incentives. Gerald Cohen’s brilliant critique (1992) of the incentive inequality argument responds to it by claiming that the talented do not strictly need incentives to work harder and produce more in ways that beneWt the worst oV. Rather, the talented could choose to work harder for less, that is, without incentives (e.g. in the form of lower marginal tax rates). This would beneWt the worst oV still more. If the talented are genuinely committed to maximizing the position of the worst oV as a matter of justice, they should choose to work harder for less, rather than only when given incentives. The demands of justice thus extend to personal choice. This is the choice-based reply to the incentive inequality argument. However, the claim that the talented should as a matter of justice choose to work harder for less implies that they are responsible for their choice not to work harder for less, and hence that they would also be responsible for a choice to work harder for less. These implications appear to interact with the roles of choice and responsibility in luck egalitarianism, which has been

For helpful comments and discussion, I am indebted to David Bakhurst, Matthew Clayton, Gerald Cohen, Rahul Kumar, Andres Moles, Fabienne Peter, Richard Reeves, Christine Sypnowich, Peter Vallentyne, Gary Watson, Andrew Williams, Jo WolV, and members of audiences on various occasions when I have presented this material. This chapter expands on arguments made in my book Justice, Luck and Knowledge (Hurley 2003).

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formulated and argued for in various ways by Gerald Cohen, John Roemer, Richard Arneson, and others. Of course, exactly how the choice-based reply to the incentive inequality argument interacts with the role of choice in luck egalitarianism depends on just how luck egalitarianism is interpreted. On what I call the choice exemption interpretation, luck egalitarianism develops a distinctive type of answer to the ‘equality of what’ question about which goods are the object of redistributive concern and so are subject to redistribution in order to achieve a certain pattern of distribution thereof. For example, in Cohen’s version of luck egalitarianism, justice should be concerned with the distribution neither of welfare nor of resources tout court, but only of goods that are a matter of luck, for which people are not responsible; egalitarians should ‘allow deviations from equality . . . which reXect people’s choices’ (Cohen 1989: 907).1 The choice exemption interpretation understands this view to imply that, in principle, goods2 for which people are wholly responsible are not subject to redistributive justice: do not

1 Cohen writes: The right way for the erstwhile welfare egalitarian to respond to the [expensive tastes] object seems to me to be the following: ‘To the extent that people are indeed responsible for their tastes, the relevant welfare deWcits do not command the attention of justice. We should therefore compensate only for those welfare deWcits which are not in some way traceable to the individual’s choices. We should replace equality of welfare by equality of opportunity for welfare.’ (1989: 913–14) Cohen extends this strategy to advantage, which includes, but is broader than, welfare: Equality of opportunity for advantage . . . is not as good [a reading of egalitarianism] as what currently strikes me as the right reading of egalitarianism, namely, that its purpose is to eliminate involuntary disadvantage, by which I (stipulatively) mean disadvantage for which the suVerer cannot be held responsible, since it does not appropriately reXect choices that he has made or is making or would make . . . advantage is a broader notion than welfare. (ibid. 916) On my understanding of egalitarianism, it does not enjoin redress of or compensation for disadvantage as such. It attends, rather, to ‘involuntary’ disadvantage, which is the sort that does not reXect the subject’s choice. . . . When deciding whether or not justice (as opposed to charity) requires redistribution, the egalitarian asks if someone with a disadvantage could have avoided it or could now overcome it. If he could have avoided it, he has no claim to compensation, from an egalitarian point of view. (ibid. 920) [E]galitarianism . . . [judges] certain inequalities of advantage as acceptable and others as not, its touchstone being a set of questions about the responsibility or lack therefore of the disadvantaged agent. (ibid. 921) 2 I use ‘goods’ here and throughout as a generic term for results or products of choices, and in the way that Cohen uses ‘advantage’ and ‘disadvantage’, to include both welfare and resources.

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‘command the attention of justice’, to generalize a phrase from Cohen (ibid. 914). Of course, it is often diYcult to say that people are wholly responsible for goods. But we can at least say that goods for which people are partly responsible are partly exempt from redistributive justice. Then goods for which people are not responsible, those that result from luck, should be used to eliminate diVerences that are due to luck. On this interpretation, luck egalitarianism is only concerned to distribute goods that are a matter of luck, for which people are not responsible. Whether the choice exemption interpretation is the right interpretation of luck egalitarianism, or whether it can be reformulated explicitly to avoid any commitment to a choice exemption, are questions I return to later (141 ff.). Indeed, since I do not myself accept the choice exemption, I think that luck egalitarianism would be better oV dissociated from it. My focus here is not whether this is the correct interpretation of luck egalitarianism, but rather the relationship between the choice exemption view and the choice-based reply to the incentive inequality argument. Can the choice-based reply to the incentive inequality argument be maintained while also maintaining a choice exemption, where both are presented as matters of justice? What interests me in particular is whether justice can ask the talented to choose to work harder for less in order to beneWt the worst oV while also partially exempting from taxation the results of such choice. (Of course, the talented could work harder for less out of benevolent concern for the worst oV, even though justice partially exempts from taxation the results of such choice. That is, the talented could choose to give the worst oV the results of their harder work in order to beneWt them, without justice requiring them to do so.) These questions suggest the talented choice dilemma, one horn of which is provided by the incentive inequality argument and the other by the choice exemption argument. The challenge presented by the talented choice dilemma is to respond to the incentive inequality argument and the choice exemption argument simultaneously: On the one hand, if the talented cannot choose to work harder for less but need additional incentives in the form of lower marginal tax rates to enable them to choose to work harder, then such incentives may be required in order to maximize the position of the worst oV, even though they yield inequality (the incentive inequality argument). On the other hand, if the talented can and do choose to work harder for less (at high marginal tax rates), then the additional product resulting from such choice is partly exempt from redistributive taxation, resulting in a lower eVective marginal tax rate (the choice exemption argument). (Hurley 2003: 213)

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Two important points of clariWcation are needed (see ibid. 214–15). First, note that the choice exemption argument is not an incentive-based argument for inequality. Rather, it is a choice-based argument. It is not relevant to the choice-exemption argument to point out that it is not an incentive-based argument. The talented choice dilemma is a dilemma between an incentivebased argument for inequality and a choice-based argument, not between two incentive-based arguments. Second, note that incentives nevertheless operate by inXuencing people’s choices. Hence, incentives inXuence what people are responsible for in virtue of their choices. These two points are fully compatible. The fact that incentives operate by inXuencing choices does not make the choice-exemption argument an incentive-based argument. In this chapter, I assess the choice exemption argument in the context of a choice-based reply to the incentive inequality argument, such as Cohen’s. I will argue that maintaining a choice-based reply to the incentive inequality argument provides a reason to abandon the choice exemption, along with any version of luck egalitarianism from which the choice exemption can be derived, and for luck egalitarians to formulate luck egalitarianism in a way that explicitly avoids any such implication.

THE C HOICE EX EMP TION A RGUME NT The choice exemption argument is laid out more formally in this section, and an illustration is provided. In later sections I go on to claim that the argument is valid, that premises 1 and 3 are acceptable, that premise 2 expresses a commitment of one reasonable interpretation of luck egalitarianism, that premise 2 should nonetheless be rejected, and that the choice exemption argument has unattractive consequences when combined with a choicebased reply to the incentive inequality argument.

Choice exemption argument 1. Holding luck constant, an individual is partly responsible for goods that result from choices for which she is responsible.3 That is, if the individual’s choice between A and B meets the requirements for responsible choice,4 and if more goods result if she makes choice A rather than choice B 3 Responsibility here is moral responsibility, in the sense that Scanlon (1998) has called ‘attributive’; it says what we are responsible for, but not how good or bad it is, or what we deserve as a result. 4 My own views about these conditions are given in Hurley (2003: pt. I). Roughly, I subscribe to a non-regressive, actual sequence, reason-responsiveness conception of responsibility.

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(holding luck constant), then she is partly responsible for the additional goods that result if she chooses A. Whether what the individual is responsible for is a good thing, or what she deserves as a result, are further questions. Some portion of the goods for which an individual is partly responsible is thereby exempt from schemes of redistributive taxation. At a given level of taxation (as well as of luck), an individual can responsibly choose whether to produce more or fewer goods. Therefore, at a given level of taxation and holding luck constant, an individual who chooses to produce more goods is partly responsible for those additional goods. Therefore, some part of those additional goods are exempt from schemes of redistributive taxation.

Illustration 1’. Tiare has a certain level of luck, including in her talents. She can make a responsible choice between working less hard as a travel agent and working harder as a medical researcher. Working harder probably involves making more eVort in some way. The important point is that if she chooses to work ‘harder’, as a medical researcher, more goods will result—that is, the value of the resulting goods will be greater—and she will be partly responsible for the additional goods that result from her choice. Suppose the value of the additional goods for which she is partly responsible is $1,000. Alternatively, we can think of the luck-twins Tiare and Tabitha, where Tabitha chooses to work as a travel agent and Tiare as a medical researcher, and Tiare’s choice produces additional goods valued at $1,000.5 Whether Tiare’s choice is a good one, or what she deserves or is entitled to as a result, are further questions; nothing is implied at this point about the answers. 2’. Some portion of those additional goods, hence of the $1,000, for which Tiare is partly responsible is thereby exempt from schemes of redistributive taxation. Note that the exemption is only assumed to apply here when luck is held constant, and then only to part of the diVerential product of diVerent choices. Even when luck is held constant, the product of diVerent 5 The idea of a luck-twin is a generalization of Roemer’s framework (1996, 1998), in which all factors for which people are not responsible are used to allocate people to types. Luck-twins are supposedly identical in matters of luck, and diVer only in matters for which they are responsible, such as in the diVerent choices they make. Since Tiare is her own luck-twin, the intrapersonal and interpersonal comparisons are equivalent for present purposes. In fact, I am very skeptical of the idea of luck-twins and its complement, choice-twins, since I (Hurley 2003: chs 6 and 7) do not believe that choice and luck are separable. However, I go along with these assumptions here for the sake of argument.

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choices may be partly due to the level of luck that is held constant. For example, the untalented luck-twins Ursula and Ulrica may make the same choices about whether to work harder, respectively, as the talented lucktwins Tiare and Tabitha; but the diVerential product of Ursula’s choice to work harder may not be as great as that of Tiare’s choice, since Tiare is more talented than Ursula. That is why, holding luck constant between Tiare and her luck-twin, only part of Tiare’s diVerential product is exempt, not all of it. 3’. At a marginal tax rate of 60 per cent on her earnings, Tiare can make a responsible choice between working as a travel agent and working as a medical researcher. Equivalently (for present purposes), holding both luck and a marginal rate of 60 per cent constant across Tiare and Tabitha, Tiare makes a responsible choice to be a medical researcher while Tabitha makes a responsible choice to be a travel agent. 4’. Therefore, if at 60 per cent marginal tax rate and holding luck constant, Tiare chooses to work as a medical researcher, she is partly responsible for the additional goods valued at $1,000 that result from her choice. 5’. Therefore, some part of the additional goods valued at $1,000 that result from Tiare’s choice are exempt from the 60 per cent marginal tax rate. Suppose one-third of the additional $1,000 product for which she is partly responsible is exempt from the 60 per cent rate, so that $333 of the additional product will be retained by Tiare outside the tax scheme. Then $667 will be subject to redistributive taxation at 60 per cent, producing $400 in tax, with the remainder $267 also retained by Tiare. Of the additional $1,000 product for which Tiare is partly responsible, a total of $400 will go to tax and $600 will be retained by Tiare. The eVective marginal tax rate on the total additional $1,000 product, including the portion exempted from taxation, is 40 per cent, not 60 per cent. This is the choice exemption argument, which is my critical focus here.6 My primary interest here is to assess the choice exemption argument as a philosophical and logical argument, in the abstract, not as a political position or an interpretation or criticism of someone else’s position. However, I suspect that the choice exemption argument may have a certain resonance at the level of policymaking.7 To put my cards on the table in advance, while I think the argument is valid, I reject the conclusion of the choice exemption argument 6 See also Hurley (2003: chs 8 and 9) where my overall position is not anti-egalitarian. In particular, I do not base my own position on anything like a choice exemption argument for inequality, and I develop an argument for a maximin principle of distributive justice without a choice exemption. 7 Here I am inXuenced by discussion with Richard Reeves.

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because I reject premise 2. I do not think the results of responsible choice should be thereby exempt from redistributive justice and taxation for purposes of distributive justice (though they might be exempt on other grounds). Notice the structure of my illustration of the argument.8 Tiare and Tabitha are talented luck-twins, while Ursula and Ulrica are untalented luck-twins. Tiare and Ursula work harder, and Tabitha and Ulrica work less hard. LUCK AND CHOICE

Choose to work less hard

Choose to work harder

Talented luck-twins

Tabitha

Tiare

Untalented luck-twins

Ulrica

Ursula

I will now discuss each of the premises of the choice exemption argument in the following sections.

PA RTIAL RESPONSIBILITY FOR THE DIFFERENTIAL RESULTS OF RESPONSIBLE CHOICES, HOLDING LUCK CONSTANT Premise 1 says: Holding luck constant, an individual is partly responsible for goods that result from choices for which she is responsible. That is, if her choice between A and B that meets the conditions for responsible choice, and if more goods result if she makes choice A than if she makes choice B (holding luck constant), then she is partly responsible for those additional goods that result if she chooses A. To illustrate, again: Tiare has a certain level of luck, including in her talents. She can make a responsible choice between working less hard as a travel agent and working harder as a medical researcher. If she chooses to work as a medical researcher, more goods will result, and she will be partly responsible for the additional goods that result from her choice. Suppose the value of the additional goods for which she is partly responsible is $1,000. I accept premise 1, so long as what someone is responsible for is distinguished from what he or she deserves. While my purpose here is not interpretation or exegesis, and I am interested in this argument regardless of the identity of its proponents, as far as I can see, premise 1 is implied by various familiar expressions of luck egalitarianism, including those of Cohen and Roemer.9 8 It derives from Roemer’s framework (1996) for what he calls ‘equality of opportunity’, a version of luck egalitarianism. 9 These views go on to say more than premise 1, of course. I have criticized some of the further claims and arguments made by luck egalitarians; for example, I criticize Roemer’s position (Hurley 2003: ch. 7) for failing to distinguish between what people are responsible

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What objections might be raised to this premise? First, it expresses a choice-based conception of responsibility, and someone might reject this in favour of other conceptions of responsibility. For example, someone might prefer to account for responsibility in terms of control rather than choice, since these can come apart; or in terms of hypothetical choice rather than actual choice. However, I will not defend here the role of choice in responsibility that premise 1 assumes, since it is widely shared. The choice exemption argument only applies if one accepts a choice-based conception of responsibility. Several clariWcations are needed here. Intentional choice and action typically have an instrumental structure that relates the more immediate results of our acts to their further results as means to ends: we do what we intend by doing something else, we accomplish our goals by certain means. For example, I frighten away a burglar by turning on the light by Xipping a switch by moving my Wnger. The question arises whether we are morally responsible not just for the actions we choose to do but also for their results. While I cannot develop this view here, in my view, adequate answers to this question must appeal to the concepts of control and of responding to reasons, as well as to choice. When a choice controls a result, certain counterfactuals are true, so that appropriate choices would have been made in order to maintain the intended result or goal under a variety of external disturbances. When a choice responds to reasons, it is at least the case that the intended goal provides part of a subjective reason for action and that the choice controls the result by reference to that goal. A stronger sense of responding to reasons also requires that there are objective reasons to bring about the goal.10 Note that moral responsibility for the results of choice does not tell us whether our choices were praiseworthy or blameworthy, whether their results are good or bad, what we deserve as a result of making such choices, or what our rights, duties, or liabilities are as a result of making such choices. Moral responsibility for the results of choice implies that the morally responsible agent is in principle accountable for those results, but it does not tell us for and what they deserve. People can be responsible for results that they do not deserve, or deserve goods (or bads) that they are not responsible for. For example, as a matter of serendipity, an unsung hero may receive a windfall that he richly deserves, or a blackguard may get his come-uppance; conversely, a saint may reasonably and deliberately take a calculated risk and lose, while a sinner does the same and wins (ibid. 198). I strongly disagree with the view that distributive justice should aim to give people what they deserve. But I do not actually disagree with the element of luck egalitarianism that is represented by premise 1, if responsibility is distinguished from desert. 10 See Hurley (2003: 42V., 57V., and passim). An excellent discussion of responsibility for the results of choices in terms of reason-responsiveness can be found in Fischer and Ravizza (1998: ch. 4).

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whether there is good reason to hold him accountable in practice, and if so whether the accounting will be positive or negative, whether he deserves praise or blame, reward or penalty. Responsibility for a result of one’s choice is one thing, and the social accounting of it is another. For example, Tiare may be responsible for the diVerential results of her choice, but not deserve or have a right to them under a substantive scheme of just entitlement. Such further issues are not settled by moral responsibility for the results of a choice— though in my view, moral responsibility does mean that we are, at least in principle if not in practice, accountable in such further ways (cf. Scanlon 1998: ch. 6). For example, suppose someone is morally responsible for a terminal patient’s death as a result of a particular choice of treatment with morphine to relieve pain. It is a further question, requiring further argument, how this choice and its results should be evaluated. Any acceptable choice-based conception of responsibility must include some qualiWcation relating to the foreseeability or intendedness or proximateness of the results of choices. This is needed to rule out responsibility for unpredictable, unintended, and/or very distant eVects of choices. However, it should also allow (at least in many views) that people can be responsible for the unpredictable results of responsible choices to gamble.11 I do not know what the right qualiWcation is, but premise 1 should be read to include some such suitable qualiWcation. This is a general issue for choice-based conceptions of responsibility, which I will not take on here. Second, someone might adhere to a regression requirement for responsibility, according to which responsibility for anything requires responsibility for its causes. Since this requirement applies recursively, when combined with an understanding of responsibility that requires choice (or control), it makes responsibility impossible: it is impossible to choose (or control) the causes of the causes . . . of the causes of one’s choices that occurred before one existed. If regressive choice is required for responsibility, responsible choice is impossible. This is not actually an objection to premise 1, however, since premise 1 does not assert that responsible choice is possible, but only that if it is possible, the chooser is partly responsible for the results of his or her responsible choice. Rather, it would be an objection to premise 3, so I will return to it below (145V.). Third, the inclusion of ‘partly’ to qualify ‘responsible’ might be rejected. Someone might hold that someone is fully, not merely partly, responsible for the diVerential results of his or her responsible choices, holding luck constant. 11 By ‘unpredictable’, I do not mean that they had no idea, and could not reasonably have known, that the result was even possible or was causally connected to their choice, but rather that the results of their choice are risky or uncertain, which the agent recognizes. Thanks here to Peter Vallentyne.

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However, since full responsibility is stronger and more controversial than partial responsibility, for present purposes this is irrelevant. The argument will go through with full as well as partial responsibility. To register this, all occurrences of ‘partly responsible’ in the choice exemption argument can be replaced with ‘(at least) partly responsible’. For simplicity, I will omit this qualiWcation. Fourth, it might be objected that premise 1 does not take proper account of the contribution of luck to the results of choices, even if those choices are responsible choices. For example, suppose Tiare is lucky to be talented, but Ursula is unlucky to be untalented. Tiare makes a responsible choice to be a very hard-working medical researcher rather than a laid-back travel agent, and Ursula makes a responsible choice to be a very hard-working waitress rather than a laid-back surfer. By contrast, Tabitha, who is equally lucky and talented as Tiare, chooses to be a laid-back travel agent rather than a very hard-working medical researcher, and Ulrica, who is equally unlucky and untalented as Ursula, chooses to be a laid-back surfer rather than a very hardworking waitress. Tiara produces more goods than does her luck-twin, Tabitha, and Ursula produces more goods than does her luck-twin, Ulrica. Premise 1 says that since luck is held constant between Tiare and Tabitha, Tiare is partly responsible for the diVerential between her product and Tabitha’s. It also says that since luck is held constant between Ursula and Ulrica, Ursula is partly responsible for the diVerential between her product and Ulrica’s. It does not say that any of these people are responsible for the whole of what they produce, or even for the whole of the diVerential between what they and their luck-twin produce. Holding luck constant, only part of the diVerential product of choice is exempt, since part of it may be attributable to luck level (e.g. to the higher talent level of Tiare and Tabitha compared with Ursula and Ulrica) rather than to choice. Fifth, it might be objected that premise 1 fails to distinguish between attributive and substantive responsibility (see Watson 1996; Scanlon 1998: 249V.).12 Attributive responsibility is supposed to reXect the fact that an act or its results reXect a person’s agency and hence that reactive attitudes are appropriate, but not to tell us the moral valence of the act or its results, or the appropriate reactive attitudes. That is, attributive responsibility tells us what a person is morally responsible for, but not whether what the person is morally responsible for was (relatively) good or bad, or right or wrong, and whether praise or blame is warranted. Attributive responsibility (in my view, at least) tells us that a person is accountable in principle for her action and/or its results, but not whether she is accountable in practice or what particular 12 Here I am indebted to remarks by Peter Vallentyne, Gary Watson, and Andrew Williams.

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accounting is appropriate: not what the person speciWcally deserves, owes, or has a right to, in light of her action. Substantive responsibility, by contrast, reXects the moral rights and duties the individual has as a result of an action, such as owing compensation or an apology, being entitled to beneWts, or being liable to punishment. I drew a very similar distinction above, between responsibility for choices and their results, and the evaluation of such choices and results. Premise 1 clearly concerns attributive responsibility for choices and their results, not substantive responsibility. I am not sure I quite understand why substantive ‘responsibility’ should be regarded as a kind of responsibility; at least in some cases, it seems to be closer to deservingness, or to some other form of evaluation of, or response to, what one is responsible for.13 Perhaps we do, in ordinary language, use responsibility in these diVerent ways, but I think it would be terminologically wise to avoid this dual usage in philosophical argument. To call both responsibility and deservingness ‘responsibility’ invites equivocation.14 At any rate, substantive ‘responsibility’ is not implicated by premise 1, which is rather concerned with people’s attributive responsibility for the ‘goods’ that result from the choices for which they are attributively responsible. Speaking of moral responsibility for ‘goods’ might suggest a substantive evaluation of the choice and its results as good, hence implying praiseworthiness, deservingness, entitlement, or something of the sort. However, this implication should not be read into premise 1. ‘Goods’ is just a neutral term for products that result from choices; ‘goods’ could be replaced by ‘products’ throughout the choice exemption argument. Such products may be valued monetarily, as in my illustration, but this should not be taken to imply a moral valuation, desert, or entitlement. For example, suppose the diVerential product of Tiare’s choice to work as a medical researcher compared to her luck-twin Tabitha’s choice to work as a travel agent is $1,000. Premise 1 says that Tiare is partly attributively responsible for this diVerential product, not that Tiare’s choice is better than Tabitha’s, or that as a result of it Tiare is more deserving than Tabitha or has certain rights. It concerns her moral responsibility for the choices and their results, not the moral (or other) evaluation of these choices or results. Perhaps I have missed an important objection to premise 1. But, modulo general worries about choice-based conceptions of responsibility, it seems to be acceptable. 13 If so, my criticism (2003) of Roemer’s view could be expressed by saying that he fails to distinguish between attributive and substantive responsibility. 14 I believe that Roemer’s view involves just this equivocation (see Hurley 2003: ch. 7).

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PA RTIAL EXEMPTION OF GOODS FOR WHICH PEOPLE ARE PA RTLY R E S P O N S I B L E F RO M R E D I S T R I B U T I V E TA X AT I O N Premise 2 says that some portion of the goods for which an individual is partly responsible is exempt from schemes of redistributive taxation. For example, some portion of the additional $1,000 for which Tiare is partly responsible in virtue of her choice to work as a medical researcher rather than a travel agent is exempt from schemes of redistributive taxation. Premise 2 may be interpreted as introducing substantive responsibility in the form of entitlement to, or desert of, a part of the diVerential product of one’s responsible choices; it does not strictly say that, but merely speaks of exemption. However, it is natural to interpret an exemption as conveying at least a limited or defeasible right to use without interference. In this section I make two main points about premise 2: (a) I reject it; and (b) I argue that luck egalitarianism is committed to it, at least on a reasonable interpretation of it that I call the choice exemption interpretation. If luck egalitarians wish to avoid this commitment, it would be helpful to have formulations of luck egalitarianism that clarify this. First, I suggest that premise 2 should not be accepted. Even if people are partly responsible for certain results of their choices, this should not in principle exempt any part of the diVerential product for which they are responsible from redistribution. That is, we should not Wlter out of the pool of goods that are in principle subject to redistribution some part of those goods for which people are partly responsible. We may have good grounds, including those of distributive justice, for including goods for which people are responsible in the pool of goods that is in principle subject to redistribution. Responsibility for goods should not be given the role of telling us what to redistribute by exempting goods from redistribution.15 Second, why should we consider premise 2 to begin with? Is it a straw man in this context? What might motivate it? Are there established views from which it can be derived? Why is it worth spelling out its consequences and in particular its relationship to the incentive inequality argument? Premise 2 is an implication of luck egalitarianism—at least on one possible, and not unnatural or perverse, interpretation of it. On this choice exemption interpretation, luck egalitarianism develops a distinctive type of answer to the 15 My reasons have to do with the way this ‘what’ role becomes problematic in relation to other important roles that I believe responsibility should play in distributive justice, in contributing to well-being and as a parameter on possible levels of incentive seeking (Hurley 2003: ch. 9; I will not summarize my arguments here, as this would require a lengthy digression).

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‘equality of what’ question about which goods are the object of redistributive concern and thus subject to redistribution in order to achieve a certain pattern of distribution thereof. For example (as I indicated earlier), according to Cohen’s version of luck egalitarianism, justice should be concerned with the distribution neither of welfare nor of resources tout court, but only of goods that are a matter of luck, for which people are not responsible; egalitarians should ‘allow deviations from equality . . . which reXect people’s choices’ (Cohen 1989: 90; see fn. 2). The choice exemption interpretation understands this view to imply that, in principle, goods for which people are wholly responsible are not subject to redistributive justice: do not ‘command the attention of justice’, to generalize a phrase of Cohen (ibid. 914). While it is often diYcult to say that people are wholly responsible for goods, we can at least say that goods for which people are partly responsible are partly exempt from redistributive justice. Then goods for which people are not responsible, which result from luck, should be used to eliminate diVerences that are due to luck. On this interpretation, luck egalitarianism is only concerned to distribute goods that are a matter of luck, for which people are not responsible. In support of this second claim, I will spell out three general reasons for thinking that luck egalitarianism is (at least implicitly) committed to premise 2. These are not exegetical reasons, but reasons of principle, deriving from a reading of the central point of luck egalitarianism. I have no strong stake in textual exegesis here, since my concern is with assessing the argument thus interpreted, not with its attribution. If this is the wrong interpretation of luck egalitarianism, it is worth making it explicit, and clarifying exactly how, on an alternative interpretation, luck egalitarianism avoids this implication. My Wrst argument distinguishes the ends of luck egalitarianism from the means it adopts to those ends. Suppose the end of luck egalitarianism is equality of goods (i.e. resources at market value and/or welfare) for which people are not responsible; only inequalities of goods for which people are not responsible command the attention of justice (again, see ibid. 914, 916, 920–1, quoted in fn. 1). The question then arises: what means are appropriate to the pursuit of this end? I suggest that this end is properly pursued by means of redistributing goods for which people are not responsible until they are equal. It is not properly pursued by means of redistributing goods for which people are responsible. Redistributing goods for which people are responsible is not relevant to the distribution of goods for which people are not responsible. In Roemer’s scheme, this answer is elaborated in terms of partial responsibility. People like Tiare are partly responsible for the diVerence that results from their choices, compared with the choices of their luck-twins, such as Tabitha. But they are not responsible for diVerences between their own

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positions and the positions of those who are not luck-twins, such as Ulrica and Ursula. Part of the diVerential results of Tiare’s choice can be applied to equalizing the positions of choice-twins who are not luck-twins, but part of it is exempt from redistribution, in order to respect the diVerent responsible choices made by luck-twins Tiare and Tabitha. Roemer’s framework is thus one expression of the choice exemption. While I do not share the assumed end, I claim that the end of equalizing goods for which people are not responsible is not properly pursued by means of equalizing goods for which people are responsible. This claim is not rebutted by the idea of compensating someone who has a deWcit in goods for which she is not responsible by redistributing to her goods for which someone else is responsible. If goods for which people are not responsible are distributed equally, there is no need to redistribute goods for which people are responsible. Perhaps goods for which people are not responsible cannot be distributed equally; if so, it does not help to achieve this end by distributing instead goods for which people are responsible. However, it is hard to see why the relevant goods for which people are not responsible cannot be distributed equally. The aim is not to redistribute native talents themselves, but to redistribute resources at market value and/or welfare for which people are not responsible. For example, if Tiare is so talented that her market income is ten times that of her untalented choice-twin Ursula, as well as $1,000 more than that of her luck-twin Tabitha, part of the $1,000 is exempt from redistribution. This is compatible with redistributing a great deal of the rest of Tiare’s market income to Ursula in order to equalize them. A second argument for my interpretation of luck egalitarianism as committed to premise 2 is in eVect a reply to an objection. It might be objected that the preceding paragraphs attribute the wrong end to luck egalitarianism. Perhaps the end of luck egalitarianism is not equality of goods for which people are not responsible, but rather equality of opportunity for goods. However, if these are equivalent, the above argument from ends to means still holds. Are they equivalent? I suggest that they are, and my argument for this suggestion is my reply to this objection. Roemer calls his interpretation of luck egalitarianism ‘equality of opportunity’, which is one expression of the choice exemption, in the way I have just explained.16 However, let us consider the relationship between equality of goods for which people are not responsible and equality of opportunity for goods in more general terms, to see why they are equivalent. Suppose A and B have equal opportunity. Does this entail that A and B are luck-twins, equal in respect of goods for which they are not responsible? That 16 Some of Cohen’s formulations (e.g. 1989: 914, 916) also suggest this equivalence.

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is, does it entail that any diVerences between A and B are in goods for which they are, respectively, responsible? It would seem so. If A were better oV than B but they were not each responsible for her goods, this would itself amount to a diVerence in opportunity. In virtue of having more goods for which she is not responsible than B does, A would have greater opportunities than B. Now consider the converse entailment. Suppose A and B are luck-twins, equal in respect of goods for which they are not responsible; that is, any diVerences between them are in goods for which they are, respectively, responsible. Does this entail that A and B have equal opportunity? Tiare and Tabitha are luck-twins, who make diVerent responsible choices, with diVerent results. Could Tiare not have more opportunity than Tabitha just in virtue of having more goods, though they are equally responsible for the goods they have? Or does a diVerence in opportunity in the relevant sense have to reXect some diVerence in goods for which they are not responsible, such as the diVerence between Tiare and Ursula? Here, I suggest, we are entering the realm of partial responsibility that Roemer’s framework was designed to address. The framework explicates a clear sense of equal opportunity in which luck-twins who are equal in respect of goods for which they are not responsible do have equal opportunity. I have defended the equivalence of equality of opportunity and equality in goods for which people are not responsible. While this defence is certainly not exhaustive, it suggests that my interpretation of luck egalitarianism, as taking for its end equality of goods for which people are not responsible, is not unreasonable. And the view is certainly worth assessing on the merits. A third argument for the choice exemption interpretation is in eVect an argument against a diVerent interpretation of luck egalitarianism.17 On this diVerent interpretation, whether producers are entitled to any exemptions at all as a result of choices for which they are responsible depends on how luck is distributed. Tiare may not be entitled to even a partial exemption for the diVerential product of her choice to work hard in comparison with her luck-twin Tabitha’s choice to work less hard. Whether she is depends not on the comparison with her luck-twin, Tabitha, but on what is needed to ensure that Tiare’s unlucky choice-twin, Ursula, is no worse oV than is Tiare. In other words, luck egalitarianism does not use responsibility to tell us what resources to redistribute, to answer the ‘equality of what’ question, as I assume it does. All resources are up for redistribution. Rather, it tells us how to redistribute them: so as to make unlucky choice-twins equally well

17 Here I am indebted to discussions with Andrew Williams, who disputes my interpretation of luck egalitarianism. I have replied to his diVerent interpretation, as I understand it, in the text.

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oV; though we are allowed, in doing so, to leave luck-twins who make diVerent choices diVerently well oV. However, I (2003: chs 6 and 7) have argued elsewhere that responsibility and luck cannot play the role of telling us how to distribute. Perhaps deservingness can play this role, but what someone deserves is not at all the same thing as what she is responsible for; moreover the idea that distributive justice should aim to give everyone what she deserves is in my view deeply illiberal and thus unattractive. For present purposes, the relevant points are: (a) if luck-egalitarianism gives responsibility (as opposed to deservingness) the role of telling us how to distribute, it is in trouble, since responsibility cannot do this work; and (b) if instead luck egalitarianism gives responsibility the role of telling us what to distribute, it involves the choice exemption, which is how I am interpreting it here. As already indicated, I myself reject premise 2: (partial) responsibility for goods should not be used as a basis for (partial) entitlement to such goods via their (partial) exemption from taxation. Nevertheless, I am interested in what follows from premise 2, since I think that it is an implicit commitment of one reasonable interpretation of luck egalitarianism.

RESPONSIBLE CHOICE OF WORK AND RESULTING PRODUCT LEVEL, HOLDING LU CK AND TAXATION LEVEL S FIXED Premise 3 says that an individual with a given level of talent who faces a given level of marginal taxation, can make a responsible choice of whether to work harder and produce more goods, or less hard and produce fewer goods. For example, at a marginal tax rate of 60 per cent on her earnings, Tiare can make a responsible choice between working as a laid back travel agent and working harder and more productively as a medical researcher. In this section I put forward two points as regards premise 3.18 First, let us return to an objection based on a regression requirement for responsibility, according to which responsibility for anything requires responsibility for its causes. Recall that, since this requirement applies recursively, when combined with an understanding of responsibility that requires choice (or control), it makes responsibility impossible: it is impossible to choose (or control) the causes of the causes . . . of the causes of one’s choices that 18 Cohen (1992) discusses whether such choices are possible in his critique of the incentive inequality argument.

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occurred before one existed. If regressive choice is required for responsibility, responsible choice is impossible. Therefore, Tiare would not be responsible for her work choice or its consequences. I (ibid., ch. 3) argue elsewhere that the regression requirement should be rejected, so I don’t think this objection succeeds. Whether we regard the requirements for responsibility as primarily determined by conceptual theorizing about responsibility or by our actual applications of responsibility to actions and their results (or both), a requirement that makes responsibility impossible cannot be defended. From the impossibility of regressive responsibility we should conclude not that responsibility is impossibility, but that responsibility is not regressive. Second, an objection can be based on the distinction between individual and collective or systemic possibility. For any given individual, it may be possible, holding other background and systemic factors constant, for that individual to choose to work harder for less. But it does not follow that it would be possible for all (or most) individuals to choose to work harder for less, since if all (or most) individuals were to do so, it might not be possible to hold other background and systemic factors constant. In other words, the possibility of an individual’s choice may depend on background or systemic factors that in turn depend on what most people choose. Choices may be possible for individuals at the margin of a system that are not possible to generalize throughout the system (see ibid., ch. 9 for elaboration of this point). If justice is concerned with how well oV the worst-oV group in society is, the collective possibility may matter much more than the individual possibility, but also be more diYcult to assess, as it may depend on complex social interactions, dynamics, prevalent concepts, and psychological and other expectations and norms. However, the choice exemption argument is stated in terms of individual choice and possibility, so for present purposes I will assume premise 3 on its own terms, that is, in terms of individual possibility.

I N F E R E N C E S F RO M P R E M I S E S 1 , 2 , A N D 3 : PA RT I A L R E S P O N S I B I L I T Y F O R , A N D PA RT I A L E X E M P T I O N F RO M TAXATION OF, DIFFERENTIAL PRODUCT OF WORK CHOICE So far, I have accepted premises 1 and 3 for present purposes, but have rejected premise 2. Now consider what follows if we accept all three. Premise 1 gives partial responsibility for the diVerential results of work choices, holding luck constant, and premise 3 says that such choices are possible

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holding taxation constant also; thus we have claim 4: partial responsibility for the diVerential results of work choices, holding luck and taxation constant. Applying the choice exemption speciWed by premise 2, we get claim 5: part of the diVerential product is exempt from taxation. For example, at 60 per cent marginal tax rate and holding luck constant, by 3, Tiare can choose to work as a medical researcher. If she does so, then, by 1, she is partly responsible for the additional goods valued at $1,000 that result from her choice. Therefore, by 2, some part of the additional goods valued at $1,000 that result from her choice are exempt from the 60 per cent marginal tax rate. The result is a lower eVective marginal tax rate on the diVerential product of $1,000. To make this concrete, suppose one third of the additional $1,000 product for which she is partly responsible is exempt from the 60 per cent rate, so that $333 of the additional product will be retained by Tiare outside the tax scheme. Then $667 will be subject to redistributive taxation at 60 per cent, producing $400 in tax, with the remainder $267 also retained by Tiare. Of the additional $1,000 product for which Tiare is partly responsible, a total of $400 will go to tax and $600 will be retained by Tiare. The eVective marginal tax rate on the total additional $1,000 product, including the portion exempted from taxation, is 40 per cent, not 60 per cent. It might be objected that if the results of choice are partly exempt from redistribution, marginal tax rates should Xow from this exemption, rather than be applied to what remains post exemption.19 However, people’s actual choices are made in the context of expectations about marginal rates. So those very marginal rates cannot be determined by actual choices that already assume these rates. What people would choose in the absence of taxation is hard to know and may be indeterminate. It is not a feasible or theoretically sound basis for choice of tax rates. Therefore, I have assumed that there are factors other than what people would choose in the absence of taxation that inXuence policy choices of tax rates, and that the choice exemption operates against that background. I do not see anything wrong with the inference to claim 5, given the other premises, though again I would reject premise 2.

INCENTIVE INEQUALITY AND CHOICE EXEMPTION Let me now return to the context of the choice exemption argument I sketched in the Wrst section. As indicated, what interests me is whether justice 19 Here I am indebted to Peter Vallentyne.

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can ask the talented to choose to work harder for less in order to beneWt the worst oV while also partially exempting from taxation the results of such choice. I will investigate this question by means of my illustration, in which the Wgures have been rigged to illustrate a general possibility. Tiare, I agree, can choose to work harder and more productively when she faces a 60 per cent tax rate. So it cannot be argued that she needs the incentive of, say, a 40 per cent tax rate in order to do so. If it were true that she could only work harder at 40 per cent, then the additional $1,000 she would produce would yield an additional $400 in tax, available to beneWt the worst oV. If justice aims to maximize the resource position of the worst oV, it would then favour a 40 per cent marginal rate in this case over a 60 per cent marginal rate. But if Tiare can work harder at 60 per cent, as we have supposed, the additional $1,000 she would produce would yield an additional $600 in tax, which would be of even more beneWt to the worst oV. If justice aims to maximize the resource position of the worst oV, it should favour 60 per cent marginal tax rate and should direct Tiare to choose to do the harder work at 60 per cent marginal tax rate. (I am here deliberately setting aside a diVerent set of issues about the site of justice, and assuming that justice can make demands on individuals.) However, if justice also partially exempts from taxation the results of choice for which individuals are partially responsible, this directive must be reconsidered. On this assumption, responsibility contributes to answering the ‘equality of what’ question: justice is not concerned with the distribution of all resources, but only with those for which people are not responsible. In the above example, suppose Tiare does follow the directive and so chooses to do the harder work at 60 per cent. She is partly responsible for the additional $1,000, and as a result one-third of it is exempt from taxation at 60 per cent, yielding only $400 in tax. Of course, the amount yielded should be still less if Tiare chose instead to work less hard. However, if she does choose to work hard (perhaps in order to beneWt the worst oV!), no additional tax or beneWt to the worst oV accrues from the 60 per cent versus the 40 per cent marginal rate, given the operation of the choice exemption. Therefore, if justice includes the choice exemption, it will not favour the application of a 60 per cent marginal rate in this case. Given the operation of the choice exemption, the same beneWt to the worst oV will accrue whether Tiare works harder at 60 per cent or works harder at 40 per cent. Admittedly, the Wgures in this example have been rigged, so that the onethird exemption of the results of choice renders the 60 per cent rate just equivalent to a 40 per cent rate. But this exact equivalent just makes the point easy to see, and is not important. The point is that the choice exemption gives rise to a general possibility: that taxing the result of choices to work harder at

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a higher rate may not actually beneWt the worse oV, because of the choice exemption. This is not an incentive-based argument for inequality; rather, it is part of an argument against the choice exemption, which shows how it can diminish society’s capacity to beneWt the worst oV. There are two ways to draw comparisons here. First, we can hold the tax rate constant, and look at the eVects of choice. At 60 per cent, Tiare beneWts the worst oV more by choosing to work harder rather than less hard. That is also true at 40 per cent. These points hold regardless of the choice exemption. If Tiare aims to beneWt the worst oV as much as possible, she should choose to work harder, whichever tax rate is in eVect. Second, we can hold the choice to work harder constant, and look at the eVects of the tax rate. If Tiare chooses to work harder and there is a choice exemption, the worst oV beneWt no more from the 60 per cent rate than from the 40 per cent rate (given my rigging of the Wgures). Choosing to work harder beneWts the worst oV, at any given tax rate. But given a choice exemption, working harder at 60 per cent may not beneWt the worst oV any more than working harder at 40 per cent would. It is not true that Tiare would beneWt the worst oV even more by working harder at 60 per cent than by working harder at 40 per cent. She does not, of course, have the choice of which marginal rates she does her hard work under. But if she did, on these Wgures and given the operation of the choice exemption, she would have no reason of justice to choose to work harder under the higher rate rather than under the lower rate in order to beneWt the worst oV. Although, of course, nothing would stop her from making donations to the worst oV, under either rate. Consider now the policymaker who does choose the marginal rates that apply to choices like those described here, made by people like Tiare and Tabitha. If the person knows that people like Tiare and Tabitha are going to choose to work harder and produce more, so that my rigged Wgures hold more generally, and she is concerned to beneWt the worst oV, does she have any reason to choose the higher rate? Perhaps, but the higher rates will not beneWt the worst oV, given the choice exemption. So, given a choice exemption, a maximin principle will not give the policymaker a reason to choose the higher rate. Now suppose the policymaker does not know whether people like Tiare and Tabitha will choose to work harder or not. Whichever marginal rate she chooses, the policymaker would prefer them to work harder, since that will beneWt the worst oV the most. Can she inXuence them to choose to work harder by the marginal rate she chooses? No, since neither they nor the worst oV will beneWt more if they chose to work harder, under either rate; the choice exemption limits the eVects and inXuence of the marginal tax rate (obviously,

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since it exempts product from it). Under my rigged Wgures, the exemption exactly cancels out the diVerence in marginal rate. This argument may be counterintuitive, so let us make it more concrete. If Tabitha or Tiare choose to work less hard, they earn $10,000 and fall under a 30 per cent overall rate. If they choose to work harder, they earn an additional $1,000, and the question is: should it be taxed at 40 per cent or at 60 per cent? At 40 per cent, Tabitha, who chooses to work less hard, pays $3,000 in tax and is unaVected by the marginal rate; Tiare, who chooses to work harder, pays $3,000 on her Wrst $10,000 of income and another $400 on the extra $1,000 she produces, or $3,400 total tax. At 60 per cent, Tabitha again chooses to work less hard, is unaVected by the marginal rate, and pays $3,000 in tax. At 60 per cent, Tiare again pays $3,000 on her Wrst $10,000 of income, and pays 60 per cent on two-thirds of the extra $1,000, or another $400 tax, again for a total of $3,400 tax. On these assumptions, the diVerent tax rates do not aVect net result of diVerent work choices, either for the worker’s earnings net of tax or for the amount available to beneWt the worst oV. Generalizing, while my tidy numerical assumptions of course are artiWcial, we can nevertheless say that the choice exemption would limit the eVectiveness of marginal tax rates as a policy tool (even if it were practical, which it is not).

CONCLUDING REMARKS This chapter has considered the implications of a focus on responsibility in egalitarianism. Luck egalitarians seek to hold people responsible for their choices, refusing to redistribute to mitigate the impoverishing eVects of bad choices. This position can have the consequence that the enriching eVects of good choices are also, at least partially, exempt from redistribution. This is partly revealed by Cohen’s discussion of the incentive inequality argument, in which he contends that incentives to productivity are not justiWed by the aim of making the worst oV as well oV as possible, since the talented should, as a matter of justice, choose to work harder without the incentive of extra Wnancial compensation. The combined eVect of Cohen’s arguments about incentives and the choice exemption is the talented choice dilemma: if people are not responsible for their choices on whether to produce more, the argument justifying incentive inequality may hold; but if they are responsible for their choices on whether to produce more, a choice exemption leaves some of the extra goods they choose to produce untaxed. The choice exemption looks particularly worrying in Wnancial terms if we aim to do better for the worst oV than to accept incentive inequality, since it means that

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an adjustment to the tax rate to accommodate responsibility for being productive can whittle away the beneWts of productivity for redistributive purposes. It is not clear that the result would make the worst oV better oV than an incentive system. In my view, the choice exemption is not the right way to give responsibility a role in justice. That is, we should not use responsible choice as a way of answering the question of what goods distributive justice is concerned with the distribution of. Moreover, I think it is only when we set aside the choice exemption that we can get issues about the relationships among choice, incentives, and inequality into clear focus. However, responsibility still has important roles to play in justice, in the absence of a choice exemption. In particular, responsibility for results, or lack thereof, generates expectations that are psychologically and evaluatively more basic than conclusions about desert, entitlement, or social accountability. Such expectations function among other things as parameters on possible collective levels of incentive seeking against which a maximin principle of justice operates (see ibid., chs 8– 10 for elaboration). I will conclude with a simple statement of my own positive views. On the ‘what’ question, I support a form of perfectionism. Justice is concerned with a list of objective goods, including health and education, and also autonomy, which presupposes responsibility (although responsibility is not suYcient for autonomy). Since autonomy has a central role as a good,20 my perfectionism is a liberal perfectionism. On the ‘how’ question: I have argued for a maximin principle, and speculated about the close formal relationships between priority and suYciency principles (ibid., ch. 10). My preferred position lies in the space between priority and suYciency views. However, I am also increasingly coming to believe that further detailed pursuit of the correct answers to the ‘what’ and ‘how’ questions in specifying ideas of justice will not be fruitful. I am coming to this belief in the course of being increasingly puzzled by the disconnection of most theorizing about distributive justice from investigation of the causes of abject poverty and from empirical explanations of inequality (there are notable exceptions, such as the work of Thomas Pogge 2002). Theorists who disagree vigorously and cleverly in their answers to the ‘what’ and ‘how’ questions, and in their detailed speciWcations of ideals of justice, nevertheless can all agree that abject poverty is a very bad thing. It seems to me somewhat beside the point to argue further from the armchair over the exact conditions under which abject poverty amounts to severe injustice, or indeed about how much harder talented individuals could and should in principle work without receiving higher 20 In the way I (1989: ch. 15) explain elsewhere.

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rewards. What is urgently needed is a better understanding of the systemic causes of poverty and poverty-involving inequality, in order to better understand what the most eVective handles are for manipulating these causes (rather than simply for counteracting their eVects). The answers to this question about causes—for there may not be a single, satisfyingly simple answer—may be surprising, and may cut across many theoretical and ideological grains. Complex dynamic systems, of which the global society that generates and sustains poverty is an example, are full of surprises, unexpected discontinuities and bifurcations, within which causation often does not Xow intuitively, in linear or even separable channels of inXuence. The heuristic intuitions that inform our ideologies and guide our search for justice may be the creatures of evolution in a rather diVerent, less complex, hunter-gatherer environment, and are not necessarily reliable guides to achieving our ends in the world we now have. Moreover, such intuitions may vary widely (see Henrich et al. 2004). Past decades have surely deepened our normative theoretical understanding of justice dramatically. Nevertheless, I suggest that what would best serve justice at present is to become a bit less sophisticated about our ends, our ideals of justice, and just make do with agreement on the goal of dramatically reducing abject poverty in the world, while becoming much more instrumentally sophisticated and pragmatic about the means by which we pursue that goal, including deeper empirical understanding of the systemic causes of poverty and how they can be most eVectively manipulated. At this point, compared with further Wne-tuning of the demands of ideal justice and of the distinction between poverty for which individuals are and are not responsible, a deeper grasp of the systemic causes of poverty may better empower us to eliminate it, and may even help motivate and increase the concern to do so.

REFERENCES Cohen, G. A. (1989). ‘On the Currency of Egalitarian Justice’, Ethics, 99(4). —— (1992). ‘Incentives, Inequality, and Community’, in G. Petersen (ed.), The Tanner Lectures on Human Values, vol. 13. Salt Lake City, UT: University of Utah Press. Fischer, J. M. and Ravizza, M. (1998). Responsibility and Control. Cambridge: Cambridge University Press. Henrich, J., Boyd, R., Bowles, S., Camerer, C., Fehr, E., and Gintis, H. (2004). Foundations of Human Sociality: Economic Experiments and Ethnographic Evidence from Fifteen Small-Scale Societies. Oxford: Oxford University Press.

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Hurley, S. (1989). Natural Reasons: Personality and Polity. New York: Oxford University Press. —— (2003). Justice, Luck, and Knowledge. Cambridge, MA: Harvard University Press. Pogge, T. (2002). World Poverty and Human Rights. Cambridge: Polity Press. Roemer, J. (1996). Theories of Distributive Justice. Cambridge, MA: Harvard University Press. —— (1998). Equality of Opportunity. Cambridge, MA: Harvard University Press. Scanlon, T. (1998). What We Owe to Each Other. Cambridge, MA: Harvard University Press. Watson, G. (1996). ‘Two faces of responsibility’, Philosophical Topics, 24.

8 Mr. Morgan’s Yacht Jeremy Waldron

A S TRIKING EXAMPLE Sometimes in political philosophy the use of an example enables a point to be stated so clearly and its implications drawn out so unXinchingly that the example lingers as a sort of mnemonic for all future discussion of that point. Nozick’s ‘Wilt Chamberlain’ (1974: 161) is one such case; Van Parijs’s surfer (1991) is another; a third involves the expensive tastes of ‘Louis’ (for prephylloxera claret and plovers’ eggs) in Dworkin’s discussion of welfare (1981: 229); and a fourth example—the one that I want to talk about—is G. A. Cohen’s example of Mr. Morgan’s yacht. The example was used by Cohen to point to the confusion in many people’s thinking about the relation between private property and freedom. Many who favour a privatized economy do so in the name of freedom. Libertarians think that a system of private property is a system of freedom and that state interference with property (the regulation of its use or its redistribution) is a restriction on freedom. The assumption seems to be that private property rights do not themselves restrict freedom (for if they did, state interference might be a way of diminishing a restriction rather than imposing a new one). But that assumption, though common, says Cohen, is manifestly wrong: Let us suppose that I wish to take Mr. Morgan’s yacht, and go for a spin. If I try to, then it is probable that its owner, aided by law-enforcing others, will stop me. I cannot do this thing that I wish to do, because others will interfere. But liberty . . . is ‘doing what we wish without the interference of others.’ It follows that I lack a liberty here. (1979: 11–12)

Of course, Mr. Morgan is free to use his own yacht. And because the law prevents the rest of us from struggling with him for the use of it, he is free

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by virtue of the very laws that make us unfree. From this we can infer a conclusion probably uncongenial to libertarians: while state interference might restrict the freedom of owners like Mr. Morgan, it might also diminish some of the restrictions on freedom that are required if Mr. Morgan’s freedom as an owner is to be upheld. Cohen’s point is also important for the way non-libertarians argue about property. Some people—‘left-liberals’—favour the redistribution of property and favour measures that restrict what owners can do with their property and even measures that give the common people free access to privately owned resources (like ramblers’ access in England). They agree (with their libertarian opponents) that these measures diminish freedom but they think the tradeoV between freedom and other values, such as equality, social justice, or economic security, is justiWed.1 Cohen thinks it is clear from the case of Mr. Morgan’s yacht that both sides are wrong. If Mr. Morgan’s yacht is one of the things redistributed or made available for common use, what results, says Cohen, is a reallocation but not necessarily a diminution of freedom. Mr. Morgan’s freedom is restricted (compared with what it would be under the system of pure ownership) and the freedom of others is expanded: they are now free to use the yacht in a way that they were not free to use it before. It is a case of freedom having been redistributed, rather than a case of freedom having been traded oV against other values in the course of redistribution. I think Cohen is right about this—obviously. All property restricts freedom. That is why we have systems of property. In the case of private property, we want to restrict the freedom of the many in regard to each given resource in order to reserve that resource for the use of one individual (its owner). We do this partly out of our concern for that individual, to guarantee a sphere of freedom where he or she can pursue his or her own projects and bend resources to his or her own will. (Mr. Morgan gets to pursue his own odyssey in his own yacht.) And we do it partly to encourage the eYcient use of resources. It will not be possible for vegetables to be cultivated in a given Weld, if everyone who passes by is free to trample the plants. So we place restrictions on people’s freedom in this regard: we set up ‘No Trespassing’ signs to stop them coming onto the Weld and camping there. Even common property involves restrictions on freedom. A Weld cannot be made available to everyone as a park unless people are prohibited from fencing or cultivating or mining it. The whole point of property arrangements is to sort among the various demands for action that people make upon a Wnite stock of resources,

1 Cohen cites Nagel (1982: 191–205) as representative of this sort of left-liberalism (see Cohen 1995).

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and to determine a basis on which some of those actions will be permitted and others prohibited (cf. Waldron 1988: 31–7). In what follows, I shall argue that even though Cohen’s point was obvious, it was well worth making anyway. We are so accustomed to think of a connection between property and the liberty of owners that we are inclined to neglect the relation between property and the liberty of non-owners (see Waldron 1993). Moreover, the obviousness of the point has not prevented its denial by otherwise competent philosophers. I think it is worth exploring— more fully than Cohen was able to—what motivates these denials and what their implications are for arguments about property, liberty, and justice. I shall argue that there is one objection that Cohen’s point is vulnerable to: it seems to rely on a denuded conception of liberty, which may not actually match up with the conception that is emblazoned on the banners we wave when we proclaim ourselves a free society. But I shall argue that this objection, while important, is not conclusive. Indeed it is part of the merit of Cohen’s insight that it focuses on mundane issues of liberty that pervade everyday life, rather than the grand issues of liberty that are at the forefront of the civil libertarian tradition.

2 . NE G AT I VE FREEDO M A ND N O N - D O M INAT IO N A striking feature of Cohen’s point about Mr. Morgan’s yacht is that one does not need to abandon a negative conception of freedom in order to show that property restricts freedom.2 Freedom-based critiques of private property are often thought to be based on positive conceptions of freedom. And some of them are. When Green criticized the capitalist institutions of his day, he did so on the basis of a conception of freedom that referred to a positive power or capacity of doing or enjoying something worth doing or enjoying, and that, too, something that we do or enjoy in common with others. We mean by it a power which each man exercises through the help or security given him by his fellowmen, and which he in turn helps to secure for them. (1991: 21–2)

2 What we refer to as ‘negative liberty’ is an approach that deWnes freedom as the absence of external interference with a person’s actions (see Berlin 1969: 122). Strictly speaking, ‘negative freedom’ is not the name of one conception but the name of a family of conceptions, distinguished from one another by (among other things) what they recognize as interference. What all such conceptions have in common is that they treat freedom as a concept connoting the absence of something and as a concept that is noncommittal on what is aYrmatively supposed to exist in the space left when interference is cleared away.

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It would not be hard to argue that Mr. Morgan’s property rights aVect freedom in Green’s sense. Mr. Morgan’s property rights guarantee him a purely private enjoyment, unrelated and perhaps damaging to the development of powers of contributing to the social good in the community generally. If Mr. Morgan’s yacht were conWscated by a commissar for social justice, the result might well be an increase in freedom on account of the yacht’s being made available for the enjoyment and education of all and on account of Mr. Morgan’s learning not to deWne his own well-being in such a selWsh way. However, Cohen’s point depends on no such view. He invokes only oldfashioned negative liberty: ‘doing what we wish without the interference of others’. If I try to act on my wish to take Mr. Morgan’s yacht out for a spin (without his permission), Mr. Morgan will see to it that I am restrained and punished. His entitlement to call on the power of the state to help restrain me is the essence of his property right. Property rights aVect freedom in the most negative sense of freedom imaginable. Cohen’s argument has been criticized by Reeve (1986: 105–11), who observes that the connection between property and freedom is a purely contingent one: Mr. Morgan’s property rights may aVect my freedom, but only if the following two things are true: (a) I actually have the desire to take Mr. Morgan’s yacht out for a spin; and (b) when I do so, Mr. Morgan chooses to invoke his property rights to stop me or to have me stopped by the police. With regard to condition (a), Reeve (ibid. 109) notes Cohen’s use of the following deWnition of negative liberty: ‘when a man cannot do as he wishes, because others will interfere, he is unfree’ (Cohen 1979: 11; emphasis mine). Reeve observes that this corresponds to an early formulation of Berlin’s, which Berlin (1969: xxxviii) subsequently repudiated, because it implied that one could expand one’s freedom by limiting one’s wishes. (If I rid myself of the desire to take Mr. Morgan’s yacht out for a spin, on this deWnition, his ownership of it no longer aVects my freedom.) This is a picky and unhelpful point. The deWnition of liberty that Cohen (1979: 11) uses is adapted from the rhetoric of a libertarian he is attacking.3 Cohen could easily rephrase his point in terms of Berlin’s revised deWnition: Mr. Morgan’s property rights in the yacht prevent me (in Berlin’s phrase (1969: 122)) ‘from doing what I could otherwise do’ (i.e. taking his yacht out for a spin) whether I actually want to do so or not. Since anyone who tries to use Mr. Morgan’s yacht will be stopped (condition (b) apart, which we will discuss in a moment), whether they actually conceive the desire to use Mr. Morgan’s yacht may well be conditioned by that fact.

3 It is adapted from Narveson (1976).

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Reeve’s second source of contingency is Mr. Morgan’s discretion as to whether to enforce his property rights. Reeve says: [E]ven if I am entitled to use my property to prevent you from taking some action, I will not necessarily do so. For example, I may be allowed to build a wall round my land to exclude you, to prevent you from walking across it. I may, however, choose to allow you to take a short-cut. (1986: 107)

There are certain purposes in political philosophy for which the existence of the sort of discretion that Reeve emphasizes here is undoubtedly important (Waldron 1986), but this is not one of them. After all, there is similar contingency in any legal restriction. A repressive state may have laws entitling oYcials to crush dissent. In theory, they might choose to refrain from doing so, and in that sense the connection between the existence of the laws and the actual oppression is contingent. But we still describe such laws as restricting freedom, since dissidents have to take into account the likelihood of the laws being enforced. Indeed we often say that the oYcials’ discretion ‘chills’ whatever freedom remains in the interstices of its enforcement. The same is true of the laws governing Mr. Morgan’s yacht: exactly in the sense in which we call repressive political laws restrictions on freedom, we can call property rights restrictions on freedom. In response, it may be said that this shows we have moved away from a purely negative conception of freedom to a conception of freedom revolving around non-domination in relation to potential restrictions. I have in mind Philip Pettit’s republican conception of freedom. Freedom, says Pettit (1997: 4–5), is not having to live ‘at the mercy of another. . . in a manner that leaves you vulnerable to some ill that the other is in a position arbitrarily to impose’, like a wife at the mercy of a brutal husband or a worker cowed by his or her employer. I may well defer to what I take to be another’s wishes or interests simply because I perceive that he or she can coerce me; I do not need to wait until he or she actually does. If I defer to him or her in this way, I am surely as much a slave to that person, Pettit argues, as I would be if I were responding directly to his or her force or threats. This is exactly the way that Mr. Morgan dominates me through his ownership of the yacht, and from this we can say more generally that a system of private property is a system of such domination (in Pettit’s sense). However, I do not think this is a move away from negative freedom at all, and I have argued elsewhere that it is a mistake for Pettit to characterize it as such (Waldron forthcoming). Negative freedom is deWned as the absence of interference; and non-domination is deWned by Pettit as the absence of the potential for arbitrary interference. The formulations are diVerent, but it is hard to resist the impression that the second is just a more complicated version of the Wrst. Certainly, it would be wrong to say that the negative

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freedom tradition has no interest in any probability of interference, short of its actual occurrence. In fact, negative libertarians have characteristically been concerned about concentrations of, for example, power in society, even in advance of its exercise. Negative freedom is what such concentrations of power or property have the potential to threaten; ultimately it is still negative liberty that is at stake here.4

LIBERTY AND BASIC LIBERTIES The claim about the connection between property and freedom is not original to Cohen’s discussion of Mr. Morgan’s yacht.5 A few years before Cohen’s piece was published, H. L. A. Hart took John Rawls to task for failing to see the implications of the connection. Hart (1973: 536–42) said there was possibly some incompatibility between Rawls’s use (1971: 250, 302) of the Kantian principle that liberty might be restricted only for the sake of liberty and Rawls’s insistence (ibid. 265–75) that decisions about property institutions should turn on the application of principles of justice governing the distribution of primary goods other than liberty. In response, Hart insisted (as Cohen does) that property aVects liberty. He inferred that if the choice of property institutions is made on the basis of the application of Rawls’s diVerence principle to the conditions of a particular society, the diVerence principle will be determining a large part of the distribution of liberty in apparent contradiction to Rawls’s strictures about the priority of the Wrst principle governing liberty. Moreover, in any such determination it will not be the case that liberty is only restricted for the sake of liberty. The liberty implicated in questions of property will also be restricted to secure a just distribution of primary goods like health and well-being. Hart argued that to avoid this diYculty, Rawls needed to be more unequivocal in insisting that his various doctrines about liberty apply only to speciWed basic liberties, and that in particular the proposition that liberty might be restricted only for the sake of liberty was to be interpreted narrowly as meaning that these basic liberties were to be restricted only for the sake of promoting other instances of these basic liberties, not liberty generally. 4 Pettit (1997: 55) also argues that a capacity for interference aVects freedom only if it is a capacity for arbitrary interference. This raise a separate issue, a version of which we will consider later. 5 I should add that Cohen has never asserted the originality of the point—only its importance—and my saying that others have been this way before is emphatically not intended as a criticism of Cohen’s contribution.

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Rawls has said that he accepts Hart’s suggestion, and he has made it clear in a subsequent essay that ‘liberties not on the list [of basic liberties], for example, the right to own certain kinds of property (e.g. means of production), and freedom of contract as understood by the doctrine of laissez-faire, are not basic; and so they are not protected by the priority of the Wrst principle’ (Rawls 1999: 259–60). Actually, this only gets at half of Hart’s point. Certainly Hart was interested in the question of whether freedom of contract and the right to own property would be treated as distinct liberties covered by Rawls’s Wrst principle.6 But the more forceful implication of Hart’s criticism was not that would-be owners have a liberty stake in the establishment of private property in the means of production that should not be prejudged by Rawls’s Wrst principle. Hart’s point (like Cohen’s) was rather that any property rights set up as a result of decisions made about a just economic structure will inevitably aVect the liberty of those bound by those property rights. This was why he thought that assigning all issues of liberty to the Wrst principle would leave the diVerence principle with no work to do so far as the design of social institutions was concerned. In other words, Hart’s point was about the impact of property rights on liberty generally, not on speciWc economic rights like the liberty to own.7 This is not just a technical issue of Rawls’s exegesis. In following Hart’s suggestion, Rawls is accepting that there is no general right to liberty as such. All laws aVect liberty in an undiVerentiated sense: the law that designates Lexington Avenue as a one-way street restricts my liberty to drive uptown, but it would be ridiculous to say that the City of New York needs anything other than a routine justiWcation for this restriction; there is no grand issue of liberty here, in any super-charged sense (Dworkin 1977: 269). This is true too of the freedom at stake in the example of Mr. Morgan’s yacht. What Cohen has established is just that Mr. Morgan’s property rights aVect my liberty in exactly the sense that the one-way restriction on Lexington Avenue aVects my liberty: no less, but no more. Is it a criticism of Cohen’s argument that it concerns only freedom in this very routine undiVerentiated sense, and not any of the grand issues of freedom that one would expect to see covered in a list of basic liberties or a Bill of Rights? Cohen (1979: 15) himself clearly separates the issues when he observes that it is a further question whether certain important freedoms— like ‘freedom of speech, assembly, worship, publication, movement, political participation, and so on’—are better protected in a society with private 6 In developing his criticism of Rawls, Hart drew on a nineteenth-century controversy between Henry Sidgwick (1981: 277–8) and Herbert Spencer (1865: 93) on exactly this point. 7 A subsequent formulation, of Rawls (1996: 291–2) is more accurate: ‘No priority is assigned to liberty as such, as if the exercise of something called ‘‘liberty’’ has a preeminent value.’

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property than in a socialist society. But I do not think he should concede that issues of ordinary liberty are unimportant. Many of the issues at stake in the perennial debate about economic institutions are issues of routine liberty in everyday life. Defenders of laissez-faire do protest restrictions on ordinary activity, like one-way street restrictions and other incidents of regulation in the modern state. They say they are worried about being obstructed by coercive laws no matter which way they turn in social and economic life, and there is no reason to think this worry is disingenuous. Against that background, what Cohen wants to show is that such pervasive restriction on ordinary action would be endemic in a pure capitalist society as well. The defender of laissez-faire says that everywhere he or she turns in the modern state, he or she runs into regulative restrictions, and Cohen says that everywhere he turns in a capitalist society he runs into restrictions imposed by private property rights. Admittedly, the restriction on taking Mr. Morgan’s yacht out for a spin may not be the best example of this. A better example may be the predicament of the homeless (see Waldron 1991: 295; 2000). A homeless person is one who has no property rights with respect to land: he or she is unfree to use or to be on any privately owned land (without permission). But the land that constitutes the territory of our society is mostly privately owned land. So almost everywhere the homeless person turns, every step he or she takes, in everything he or she tries to do, that person faces a restriction on freedom. Of course as an embodied being, he or she has to be somewhere. He or she exists and lives on the streets and in the parks—which, as state-owned or commonly owned, are the only patches of land whose property rules are not organized to obstruct their use by people like him or her. Some advocates (e.g. Millich 1994: 255) for the homeless are worried about the deprivation of constitutional rights and basic liberties that go with homelessness. But the concerns I have just mentioned are not about that. They are about routine ordinary freedom—freedom to step this way or linger in this spot—rather than grand liberties like freedom of worship or freedom of speech. And they are important, not because any particular action he or she is restrained from performing is important but because the cumulative impact of these property restrictions on one who owns no property is comprehensive.8 Homelessness is an extreme case. What about ordinary poverty? The poor person is not as badly oV as the homeless person because the poor person has a home: he or she may own a house or may have the limited property rights of a tenant. In his or her home, the poor person is not unfree to 8 But see also Waldron (1991: 310V.) for the signiWcance of all this in regard to mundane but necessary life activities like washing, sleeping, urinating, etc.

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perform ordinary actions, but of course is unfree to perform them on other people’s property. In this respect, however, he or she is no diVerent from anyone—even Mr. Morgan. Mr. Morgan is not free to use the poor man’s hovel or anyone’s house except his own; he is not even free to take the poor man’s dinghy out for a spin. So it might be thought that—apart from the extreme case of homelessness—the fact that property rights aVect freedom is not a very interesting point about property. Most people including the poor person and Mr. Morgan are unfree to perform most actions in most places. They have a certain amount of freedom in the parks and the streets; that aside, the poor person is free only in his or her hovel and Mr. Morgan is free only in his mansion. Even if things were juggled around a bit and redistributed, the situation would not be much diVerent: Mr. Morgan and the poor person would still be free in the streets and the parks, and now it would be the poor person who would be free to act in a collectivized mansion and Mr. Morgan—the class enemy—whose freedom would be conWned to a hovel. Apart from the grand issues about basic liberties that we have deliberately put aside, it may not seem worthwhile essaying any extensive comparison of the extent of people’s ordinary freedom under various distributive regimes. I do not think Cohen should accept this verdict about the interest of his argument. He believes it may actually be possible to make some politically signiWcant comparisons between the extent of people’s ordinary freedom in capitalist societies and the extent of people’s ordinary freedom in socialist societies. He oVers what he calls ‘[a] homespun example’, whose homespunness I take as a tribute to the importance of freedom in ordinary life: Neighbours A and B own sets of household tools. Each has some tools which the other lacks. If A needs a tool of a kind that only B has, then, private property being what it is, he is not free to take B’s one for a while, even if B does not need it during that while. Now imagine that the following rule is imposed, bringing the tools into partly common ownership: each may take and use a tool belonging to the other without permission provided that the other is not using it and that he returns it when he no longer needs it, or when the other needs it, whichever comes Wrst. Things being what they are . . . the communising rule would, I contend, increase tool-using freedom. (Cohen 1979: 16–17)

Defenders of private property will complain that some freedoms are taken away by this rule, and Cohen (ibid. 17) sees their point: ‘Neither neighbor is as assured of the same easy access as before to the tools that were wholly his.’ But that complaint about the communizing rule, which has often seemed devastating in the abstract, is put in perspective by an acknowledgement of Cohen’s main point about private property. Private property also

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restricted freedom: it restricted A’s freedom to use B’s screwdriver and it restricted B’s freedom to use A’s chisel. At least now the rival schemes can be evaluated on their merits, and I think it is part of Cohen’s argument that the appropriate currency for this evaluation is the currency of negative freedom.9 I emphasize again that it is ordinary negative freedom, not just freedom represented by the grand rights that Wgure on a list of basic liberties. Cohen does not denigrate the basic liberties, but I think he recognizes that, in the end, the core issue between defenders of private property and their opponents is the texture of property restrictions in the dailiness of ordinary life.

B E N TH A M ’ S V E R S I O N Let me return now to the provenance of Cohen’s point about Mr. Morgan’s yacht. We saw a version of it in Hart’s critique of Rawls and that is what led us into a discussion of the diVerence between evaluating social institutions by reference to basic liberties and evaluating them by reference to ordinary negative freedom. An even more distinguished pathWnder is the utilitarian writer Jeremy Bentham. For Bentham, a proper grasp of the relation between property and freedom was important for understanding property law: To understand the nature of the laws of property, . . . [it] will be necessary to recollect that an oVence and the law whereby that oVence is created are a sort of correlatives. . . . Now in the list of oVences against property the radical one seems to be that which we have styled wrongful occupation of property: it is to that oVence that the law, by which the most simple and elementary species of proprietary right is created, corresponds. (Bentham 1970: 176)

A law—any law—according to Bentham is, at root (that is what he means by ‘radical’), a command that something should be done or not done, associated with a second command (to some oYcial) that the subject of the Wrst command should suVer a sanction if he or she does what the Wrst command prohibits or fails to do what the Wrst command mandates (ibid. 1–2, 133–40). To understand the law, then, is to understand the oVence that it speciWes, and in the case of a property law that is the oVence of using a resource (e.g. Mr. Morgan’s yacht) in a way that the law prohibits. The primary impact, therefore, of property law is not on the owner but on the person who is threatened with sanctions in regard to the use of the thing that is said to be owned. If the 9 I do not mean that Cohen thinks liberty is the only currency for social and political evaluation. He (2000: 136–42) denies this in If You’re an Egalitarian, How Come You’re So Rich?

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owner is mentioned at all in the law that creates property, he or she is mentioned only as the exception to the general prohibition: Let the proprietary subject then be a certain piece of land, a Weld, the oVence which consists in the wrongful occupation of this property will be any act in virtue of which the agent may be said to meddle with the Weld. . . . [T]he act which is the object of the law, the act commanded is the negative act of not meddling with the Weld. Annexing then the expression of will to the act thus expressed, we have the whole substance of the law; which amounts to this, ‘let no one, Rusticus excepted’, (so we will call the proprietor) ‘and those whom he allows meddle with such and such a Weld’. (ibid. 176–7)

Notice what Bentham does not say. The basic form of property law is not ‘let no one wrongfully meddle with such and such Weld’ but ‘let no one meddle with the Weld’. The element of legal wrongfulness is understood, Wrst, by reference to this general prohibition and, second, by reference to the exception built into it (ibid. 182). What makes my meddling with Mr. Morgan’s yacht wrongful as a matter of law is that there is a general prohibition on all meddling with this yacht. What makes Mr. Morgan’s meddling not wrongful is that he is, for the time being, exempt from the general prohibition. That is what his being the owner means. Given all this, it just follows that the primary function of property law is to place restrictions on liberty (by deWning certain exercises of liberty as oVences). In fact the point is trivial for Bentham and quite general. Every law restricts liberty: ‘It converts into oVences acts which would otherwise be permitted and unpunishable’ (Bentham 1931: 94). And since Bentham believes that every restriction on liberty is painful or (in his words) ‘is subject to be followed by a natural sentiment of pain, greater or less’ (ibid.). [i]t follows . . . that no restriction ought to be imposed, . . . no coercive law sanctioned, without a suYcient and speciWc reason. There is always a reason against every coercive law—a reason which, in default of any opposing reason, will always be suYcient in itself: and that reason is, that such a law is an attack upon liberty. He who proposes a coercive law ought to be ready to prove, not only that there is a speciWc reason in favour of it, but that this reason is of more weight than the general reason against every such law. (ibid.)

This point, if accepted, applies to property laws as well. There is always this to be said against property—that since it deWnes an oVence (of meddling with a resource), it encroaches upon liberty. Indeed it encroaches upon the liberty of everyone—apart from the individual whose speciWcation as the owner counts as his or her exception from the general prohibition. Everyone (except Mr. Morgan) is likely to suVer from the pain associated with the restriction on liberty implied in the yacht’s being designated as Mr. Morgan’s. Conscious of

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this array of reasons against the law, we had better be sure that there are reasons in favour of property that make this massive displacement of liberty and the concomitant incidence of pain worthwhile.

P OV E RT Y A N D INA B I L I T Y I said at the outset that Cohen’s point about Mr. Morgan’s yacht, though obvious, is often denied. Some who deny it do so because they think property or lack of property is a matter of people’s ability, not a matter of freedom. They are inclined to say that poor people have the same freedom as rich people, only they have fewer means within their power to take advantage of their freedom. Berlin seems to adopt this position, though his acceptance of it is complicated. He says: Mere incapacity to attain a goal is not lack of political freedom. . . . It is argued very plausibly, that if a man is too poor to aVord something on which there is no legal ban—a loaf of bread, a journey round the world, recourse to the law courts—he is as little free to have it as he would be if it were forbidden him by law. (1969: 122)

But Berlin (ibid. 123) thinks the plausibility of this ‘depends on a particular social and economic theory about the causes of poverty.’ He says: If my poverty were a kind of disease, which prevented me from buying bread . . . as lameness prevents me from running, this inability would not naturally be described as a lack of freedom. . . . It is only because I believe that my inability to get a given thing is due to the fact that other human beings have made arrangements whereby I am, whereas others are not, prevented from having enough money with which to pay for it, that I think myself a victim of coercion or slavery. (ibid. 122–3)

What Berlin says here may be right or wrong, but it is not the same as the point Cohen is making with the example of Mr. Morgan’s yacht. I may be yachtless by accident or through my own fault and nobody may have contrived to keep me yachtless; still Mr. Morgan’s property rights restrict my freedom. The yachtless person may be physically Wt and a superb sailor. The only thing that stops him or her from taking the yacht for a spin is the (prospect) of deliberate interference by Mr. Morgan and the police. Cohen’s point has nothing to do with disability or theories of the causes of disability. It is a point about what propertylessness is, not about what propertylessness is caused by. Why do people make the mistake of assimilating poverty to lack of ability rather than lack of freedom? It is possible that the distinction between basic

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liberties and ordinary liberty plays a role here. Consider this passage from Rawls (1971: 204): The inability to take advantage of one’s rights and opportunities as a result of poverty and ignorance, and a lack of means generally, is sometimes counted among the constraints deWnitive of liberty. I shall not, however, say this, but rather I shall think of these things as aVecting the worth of liberty, the value to individuals of the rights that the Wrst principle deWnes.

This looks like an assimilation of poverty to inability, as though the poor lacked the physical capacity to use the things they are forbidden to use. But it need not be read that way. Even if he accepted Cohen’s point and deWned poverty as a lack of ordinary freedom, Rawls might still want to say that this does not necessarily aVect the distribution of the grand freedoms on his list of basic liberties. After all, Rawls’s describing poverty as inability is not a prelude to dismissing it from consideration;10 as we saw earlier, ordinary freedoms connoted by property relations are governed by the diVerence principle. It is the diVerence principle that determines the distribution of ordinary freedom, and by doing that it determines in large part the worth of the equal distribution of basic liberties commanded by the Wrst principle of his theory of justice. Relative to that division of labour, it is understandable that Rawls would not want to treat poverty as a matter of ability rather than as a matter of freedom in his discussion of Wrst principle issues. But this hardly mitigates the assimilation of poverty to inability when it is undertaken by libertarians, who (unlike Rawls) are entirely unconcerned with the distribution of ordinary liberty. For their case there is a diVerent explanation. They are guilty of a sort of fetishism, which leads them to regard the laws of property as though they were laws of nature, with individuals’ poverty or prosperity being like the personal abilities that enable us to achieve certain things given the laws of nature. Against a background deWned by gravity, my physique does not enable me to jump higher than a couple of feet; and against a background deWned by property, my economic ‘ability’ does not extend so far as to allow me to go sailing. Cohen’s point (1979: 16–17) about the neighbourhood tool kits is supposed to help dispel the Wrst part of this fetishism. No doubt there is ‘a tendency to take as part of the structure of human existence in general any structure around which, merely as things are, much of our activity is organized’ (Cohen 1979: 14) But the fact is that we can imagine other structures of property rules in which our existing abilities would enable us to do other 10 See ibid. 204–5: ‘[T]he basic structure is to be arranged to maximize the worth to the least advantaged of the complete scheme of equal liberty shared by all.’

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things. And imagining these possibilities is not science Wction. All we have to do is vote for them. What about the tendency to deWne our own wealth or lack of it as part of ourselves, and not as a fact about freedom? Hobbes observed that ‘when the impediment of motion is in the constitution of the thing itself, we use not to say it wants the liberty, but the power, to move; as when a stone lieth still, or a man is fastened to his bed by sickness’ (1996: ch. 21, 146). Is there any reason to regard one’s property as part of the constitution of oneself? Well, some philosophers argue for private property on the neo-Hegelian ground that individuals tend to identify with the resources they own and use: I think of my farm as part of myself (see Hegel 1967: 40–57; Radin 1993). But, even at its best, such neo-Hegelian argument—drawing attention to the ethical signiWcance of this sense of identiWcation—can hardly be regarded as a good ground for neglecting the freedom-dimension of the property rights that it is used to argue for. After all what is said in such arguments is that one identiWes with a piece of land and therefore others should be stopped from using it. The liberty issue is inescapable, and it is a virtue of Cohen’s account that it encourages us to focus steadfastly on that. I suppose if one takes for granted that others will be stopped from using the farm that one identiWes with, one’s ability to use it (unencumbered by their encroachments) may seem like a personal attribute, like one’s Wtness or whatever. But again, the whole point of Cohen’s argument is to stop us taking such things for granted.

MO R A L I Z E D A ND ‘ FL AT ’ CO NCEP T IO N S O F LIB E RT Y Cohen has noticed that many who deny the connection between property and liberty illustrated by the example of Mr. Morgan’s yacht do so because they use, not a straightforward negative notion of liberty (by which liberty is said to be aVected whenever any action is blocked), but a ‘moralized’ deWnition of liberty (by which liberty is said to be aVected whenever any action is unjustiWably blocked). This alters the equation signiWcantly. On this account of liberty, if the enforcement of Mr. Morgan’s property rights against me is justiWable, that enforcement does not prejudice my liberty (Cohen 1979: 12). I am as free as I was before Mr. Morgan enforced his property rights. To be sure, I am not free to do whatever takes my fancy; but I am free to do anything to which there is not already a conclusive moral objection. Liberty, after all, is not licence, and calculations of the extent of liberty should not pander to the wishes of those who intend to abuse it. That is one of the

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standard responses to Cohen’s line.11 (For convenience, I will attribute this response to Mr. Morgan himself.) Bentham noticed a similar tactic used by ‘those among the friends of liberty who . . . make it a duty of conscience to combat this truth [that all laws restrict liberty]’: They pervert language; they refuse to employ the word liberty in its common acceptation; they speak a tongue peculiar to themselves. This is the deWnition they give of liberty: Liberty consists in the right of doing every thing which is not injurious to another. But is this the ordinary sense of the word? Is not the liberty to do evil liberty? If not, what is it? What word can we use in speaking of it? Do we not say that liberty should be taken away from idiots, and bad men, because they abuse it? (1931: 94–5)

Of course people are free to deWne words however they like. But Bentham’s worry about the moralization of the concept of liberty is that it screws up the basis for rational evaluation of social institutions. ‘According to this deWnition, I can never know whether I have the liberty to do an action, until I have examined all its consequences’ (ibid. 95). Statements of liberty, on this approach, represent conclusions about social justiWcation, not inputs into justiWcatory calculations. That may not be much of a problem for someone who cares little about liberty as such: but it is a problem for anyone who thinks that the fact that something restricts liberty is or marks a reason (even if a far from conclusive reason) for not doing it. Bentham, indeed, is not at base a libertarian. But as we have seen he does believe that restrictions on liberty (in the non-moralized sense) are painful, and that this constitutes a reason to be factored into the negative side of the utilitarian calculus. Cohen’s opposition to the moralization of the concept of liberty is a strong as Bentham’s. He opposes it on several grounds: 1. Cohen (1995: 59–61) like Bentham, believes that Mr. Morgan’s response violates ordinary usage. 2. Cohen (1979: 13) thinks that Mr. Morgan’s manoeuvre begs the question in favour of private property, a tactic that can be turned against him by his opponents, who will deny (on analogous grounds) that the imposition of a luxury tax on yachts to pay for social services is an interference with liberty. 3. Cohen, like Bentham, believes that the moralization of liberty screws up the process of evaluating and justifying social arrangements. If the application of a moralized deWnition of liberty to the case of Mr. Morgan’s yacht presupposes that private property is justiWed, libertarians will not be able to use the concept of liberty in favour of private property 11 Cohen (ibid. 12n.) attributes it to Nozick (1974: 262).

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without establishing the moral legitimacy of private property, and will thus be arguing in a circle. Actually Cohen senses that the libertarians want to have it both ways.12 For the purposes of a non-question-begging liberty-based justiWcation of private property, they know they have to use a non-moralized deWnition of freedom; but libertarians like Mr. Morgan also want to use a moralized deWnition of freedom to resist Cohen’s point that private property restricts freedom. As a result, their political philosophy is a mess. I used to think these were knock-down arguments, and I have used versions of them elsewhere (cf. Waldron 1991: 307–8). Now I am a little less sure. 1. Cohen’s Wrst argument, I think, is weak: ordinary language vacillates between a liberty/licence distinction and the proposition that being unrestrained in wrongdoing is liberty. On the one hand, we are inclined to say, with Bentham, that the liberty to do evil is liberty, and with Cohen that ‘[a] properly convicted murderer is rendered unfree when he is justly imprisoned’ (1995: 60). On the other hand, we feel uneasy saying that there is a prima facie objection based on liberty to stopping people from rape and murder.13 If in our stiVer Benthamite moments we do say such things, we are using liberty in a sense that Dworkin has described as a ‘Xat description that carries, in itself, no suggestion of endorsement or complaint’ (2000: 125). Liberty, in this Xat sense, carries little or no weight, and it is to be distinguished from the sense in which it is used ‘normatively to identify a political virtue or ideal that we endorse’ (ibid.). (At best it connotes the undesirability of the slight pain of irritation that, as we saw earlier, Bentham associated with the irksomeness of any restriction.) We might say that the libertarian needs to have the Xat unmoralized sense of liberty available for the times when he or she wants to construct a liberty-based argument for property, but in fact it will do him or her little good on those occasions. What the libertarian needs when he or she is arguing for private property is a sense of liberty as something important, something worth Wghting for, and it is not at all clear that the Benthamite notion gives that. I am not saying that the only non-Xat normative sense of liberty is the sort of moralized sense that Mr. Morgan invokes. Several other alternatives are possible. Rawls’s list of basic liberties provides one alternative: these 12 This argument is clearest in Cohen (1995: 60): Libertarians, says Cohen, ‘go back and forth, between inconsistent deWnitions of freedom, not because they cannot make up their minds which one they like better, but under the propulsion of their desire to occupy what is in fact an untenable position’. 13 For a possible manoeuvre here using the distinction, such as it is, between ‘liberty’ and ‘freedom,’ see Cohen (1995: 61–2).

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are liberties that are thought worth Wghting for even on the assumption that they will sometimes be used to do wrong. Or we might associate the stronger normative sense of ‘liberty’ with some of the mundane liberties: we might attach normative signiWcance in Kantian fashion only to assignments of liberty that are compatible with the assignment of equal liberty (even equal mundane liberty) to everyone else, and denigrate as licence claims to freedom that are not universalizable in this way. I mention this possibility because I think it is wrong to assume that the liberty/licence distinction always works in favour of Cohen’s opponent. Although Cohen may oppose it on ordinary language grounds, it is not in principle incompatible with the kinds of honest liberty-based assessment of property systems that he has in mind. 2. My misgivings about Cohen’s second argument are convoluted, and it will take a little time to explain them. Cohen’s argument is that Mr. Morgan’s manoeuvre begs the question of the justiWcation of private property: those who oppose private property will not use a moralized conception of liberty to block Cohen’s point about the yacht. The same thing works the other way too: those who think luxury taxes or restrictions on owners’ use are justiWed will use a moralized deWnition of liberty to block Mr. Morgan’s complaint that these measures restrict his freedom. How we assess these arguments depends on the relation between general claims and particular claims in regard to social institutions. Let me explain. It is sometimes said about social institutions that they give rise to two sorts of justiWcatory questions (Hart 1968: 4): (a) those about the general justifying aim of the institution—why we have private property or a system of punishment; and (b) those about distribution and application—why this yacht should belong to Mr. Morgan or why this criminal should be given Wve years. The answer to the Wrst question does not always generate the answer to the second. Sometimes, however, it does: if our general theory of punishment is retributivist, for example, this theory will also provide a basis for saying who in particular should receive what punishments. Many utilitarians, however, believe that the considerations that determine the overall desirability of punishment as an institution—for example, general deterrence—should not necessarily be used to determine whom to punish and how much. In the case of property, separating questions about the general justifying aim from those about distribution and application can occur in another way as well. Elsewhere I have discussed a phenomenon which I term ‘the normative resilience of property’ (Waldron 2001). The normative resilience of property involves a discontinuity between judgements concerning the moral justiWcation of the institution and judgements concerning the morality or honesty of individual conduct in relation to the institution. Resilience is the

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phenomenon whereby judgements of the second kind are unaVected by judgements of the Wrst kind, which are adverse to the institution of property. Thus an institution of property that everyone regards as unfair may still support judgements of honesty and dishonesty. For example, we may say that someone is stealing Mr. Morgan’s yacht and condemn the thief as dishonest even when we do not believe that the system that gives Mr. Morgan his property rights is justiWed. This phenomenon is not just a matter of the separation of moral and legal judgement: we may condemn A morally as dishonest, even though we doubt that there is any good moral justiWcation for B’s property rights, which A’s dishonesty violated. It is not hard to give a psychological explanation for normative resilience: people become attached to what the law assigns them whether they think the law is justiWed in doing so or not; they experience pain when others encroach on these rights; and observers may sympathize with this and condemn the encroachment even when they are hard put to come up with a justiWcation for the system of property.14 There is material here to justify as well as explain the resilience: perhaps it really is wrong to disrupt, by theft or trespass, an established set of property relations and the expectations based on it, even when the justice of those property relations is problematic and even when the theft or trespass is motivated by a desire to correct an injustice.15 (Partly it is a matter of means and ends: we do not believe that injustice is properly addressed by such unilateral, not to mention coercive, measures.16) So Mr. Morgan may reasonably expect us to agree with him about the wrongness of people taking his yacht out for a spin, and about the justiWability of preventing it, even though we may disagree with him about the merits of private property. Moreover, he may reasonably expect us to accept that such disruptive encroachments should count as an abuse of liberty, on a moralized conception of liberty, and that acting to prevent them should not count as a restriction. If there is anything to this, Cohen’s claim that the moralization manoeuvre presupposes the justiWcation of private property is incorrect. The moralization manoeuvre does not presuppose anything as strong as that. The issue may not even be symmetrical. Cohen’s argument envisaged Mr. Morgan complaining that the imposition of a luxury tax on his yacht is a restriction on his (Mr. Morgan’s) freedom even while he denies that having yacht-nappers dragged oV his yacht is a restriction on their freedom. The point about the normative resilience of property might support the latter denial, but will the same point (or something similar) undermine Mr. Morgan’s own complaint? Not necessarily. Perhaps if Mr. Morgan were to fail to 14 See Waldron (2001: 35–6), citing Hume (1978: bk. III, pt. 2, sect. ii, 499). 15 See Bentham (1931: 109–13) for a vigorous and extended defence of this view. 16 I am grateful to Christine Sypnowich for this point.

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pay the luxury tax, his action might be condemned as tax evasion even among those who disagreed about whether the tax is justiWed; that is a form of normative resilience. But Mr. Morgan’s complaint that the tax is wrong because it is an aVront to freedom may not be undermined by this manoeuvre (in the way that the equivalent manoeuvre undermines the yacht-napper’s complaint that his or her freedom is restricted when he or she is dragged oV Mr. Morgan’s yacht). I guess some people believe that of course luxuries like yachts should be taxed so that it will seem to them unthinkable that such impositions should be opposed in the name of liberty. But this view is intensely controversial and in consequence the taxes it supports are imposed some times and in some places and not in others. They have little chance of becoming the sort of well-established institution whose application has normative resilience relative to the reasons at stake in the controversy about its justiWcation. 3. Cohen’s third argument against the moralization manoeuvre concerns the way we make a general case for institutions like private property. The argument is that if Mr. Morgan uses a deWnition of liberty that is moralized in the way we have been imagining, he cannot make a libertarian case in favour of private property without arguing in a circle. There is something to this, but it depends on what we mean by ‘libertarian argument’. Suppose the libertarian’s argument for private property is broadly Lockean (Locke 1988: II, sect. 27, 287–8). It will begin from the moral intuition that taking something that someone else has found or made is wrong and it will build up its justiWcation of private property on that basis. In this sort of theory, my use without Mr. Morgan’s permission of the yacht that he has built will be regarded as wrongful from the beginning of the argument all the way through to its completion. The proposition that it is wrong to use something that another person has mixed his or her labour with will operate as a premise of this libertarian approach. It may be regarded as self-evident or it may be defended on metaphysical grounds, but it is not the sort of proposition that needs to be defended—in the context of a Lockean theory—on the grounds that accepting it promotes liberty. Accordingly, this intuition is available for incorporation into whatever moralized deWnition of liberty the libertarian case for property requires (perhaps at its later stages). There is no element of circularity involved. Cohen may protest of course that this is not really a libertarian case for property, for it is based on the last analysis on moral intuitions about taking things that others have made and so on, and not really about the promotion of liberty as such. That is a fair point as far as it goes, and it is certainly worth pointing out that the claim that an argument like this really centers around

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liberty is disingenuous. The argument based on the example of Mr. Morgan’s yacht helps make that clear. All I am saying is that it is, nevertheless, a common argument among libertarians, and it does show that the costs to them of the moralization manoeuvre are not as great as Cohen thinks. What Cohen has in mind when he makes his third argument is, I think, a diVerent and somewhat less reWned form of libertarianism, one that eschews Lockean moral intuitions and simply asks: which regime for governing resource use will maximize liberty? I do not know how common this sort of libertarian argument for private property is, but Cohen is surely right that such an argument is hopeless if the concept of liberty that it uses prejudges the question at issue. To run such an argument, we will have to be able to specify the freedoms that are at stake in our calculation about the maximization of liberty. That is, we will need to have a list for each resource (like a given yacht, Y) of possible persons and possible uses of the yacht, such as 1. Mr. Morgan’s use of Y at time t1 2. G. A. Cohen’s use of Y at time t1 3. Jeremy Waldron’s use of Y at time t1 . . . and so on for all individuals and all times and all resources. We will then specify several diVerent property regimes, and run them over this matrix to see which one leaves the greatest number (of these liberties) intact. (This is more or less exactly what Cohen (1979: 16–17) imagined with the homespun example of the neighbours and their tool kits). For the purposes of this exercise it is probably important that yacht Y simply be regarded as a yacht, rather than as Mr. Morgan’s yacht. If it is described as the yacht that Mr. Morgan made or found or has been using, it will be important that these be regarded as purely matter-of-fact descriptions, accepted initially without prejudice to the argument about property regimes. If we eventually accept a property regime that allows people like Mr. Morgan to have rights in vessels like Y, we will do so either because we think the freedoms permitted by such a system outweigh the loss of, for example, freedom 2 and freedom 3 listed above, or because we do not really care about freedoms like 2 and 3. Either way it will not be because we are entitled on philosophical grounds to say that they are not real freedoms. By driving this point home, Cohen has done us signal service in regard to our understanding of what is at stake in this sort of libertarian argument. Some might say, in the light of all this, that the way Cohen formulated his original example was unfortunate. It is not just any yacht he proposes to take out for a spin, but Mr. Morgan’s yacht; the example is set up with an assurance that the boat already belongs to Mr. Morgan. That apparently non-neutral characterization distracts us from the possibility of the sort of libertarian

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argument I have just sketched. Fair enough. But Cohen’s formulation also serves the purpose of reminding us that arguments for and against property are not actually considered in the state of nature. We entertain them here and now and use them to deWne our attitude towards actually existing systems of property. No doubt it is a bit of a wrench to imagine how a good faith argument about property can apply to this yacht without begging the question in favour of its being Mr. Morgan’s. But it is a virtue of Cohen’s analysis that it invites us to try.

C O NC LU S I O N This article has consisted mostly of applause for G. A. Cohen’s insistence on the connection between property and liberty illustrated in the example of Mr. Morgan’s yacht. Over many years—decades in fact—of studying theories of property, I have become convinced that the standard of philosophical argument is lower in this area than in many other areas of political philosophy. Both defenders and opponents of private property tend to be evasive about the true character of their premises and they argue in a questionbegging fashion as long as they can get away with it.17 I suspect Cohen has reached the same conclusion. I doubt that his argument will in the end make much diVerence to the way libertarians argue (their fault, not his), which may be one of the reasons he directed most of his reproaches to left-liberals. As much as the libertarians, we left-liberals too tend to get caught up in our identiWcation with what is legally our property and also in our anxiety not to be regarded as dishonest or envious in our attitude to the property of others. So we hedge our bets about arguments for redistribution or other restrictive measures in a market economy, assuring those of our fellow citizens whose good opinion we court that we are not class warriors, we are not really seeking to take away from anyone anything that is rightfully theirs, and that we do understand that there may be trade-oVs of liberty in the limited measures we have in mind. The example of Mr. Morgan’s yacht is therapy for this sort of anxiety, and it oVers an instructive proving ground for the conceptions of liberty that we use in our arguments about property, putting them to the test, exposing their presuppositions, and forcing us to state clearly and without equivocation what we have in mind when we say (or concede) that a society with private property is for that reason alone a free society. 17 Nozick’s Anarchy, State and Utopia (1974) is an honourable exception; see Waldron (2002: 278–80) for a discussion.

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REFERENCES Bentham, J. (1931). ‘Principles of the Civil Code’, in C. K. Ogden (ed.), The Theory of Legislation. London: Kegan Paul, Trench, Trubner & Co. —— (1970). Of Laws in General, H. L. A. Hart (ed.). London: Athlone Press. Berlin, I. (1969). Four Essays on Liberty. Oxford: Oxford University Press. Cohen, G. A. (1979). ‘Capitalism, Freedom and the Proletariat’, in A. Ryan (ed.), The Idea of Freedom: Essays in Honor of Isaiah Berlin. Oxford: Oxford University Press. —— (1995). Self-Ownership, Freedom, and Equality. Cambridge: Cambridge University Press. —— (2000). If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Harvard University Press. Dworkin, R. (1977). Taking Rights Seriously, rev. edn. London: Duckworth. —— (1981). ‘What Is Equality? Part 1: Equality of Welfare’, Philosophy & Public AVairs, 10. —— (2000). Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University Press. Green, T. H. (1881 [1991]). ‘Liberal Legislation and Freedom of Contract’, reprinted in D. Miller (ed.), Liberty. Oxford: Oxford University Press. Hart, H. L. A. (1968). Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press. —— (1973). ‘Rawls on Liberty and Its Priority’, University of Chicago Law Review, 40. Hegel, G. W. F. (1967). The Philosophy of Right, trans. T. M. Knox. Cambridge: Cambridge University Press. Hobbes, T. (1996). Leviathan, R. Tuck (ed.). Cambridge: Cambridge University Press. Hume, D. (1978). A Treatise of Human Nature, 2nd edn. L. A. Selby-Bigge and P. H. Nidditch (eds.). Oxford: Clarendon Press. Locke, J. (1988). Two Treatises of Government, P. Laslett (ed.). Cambridge: Cambridge University Press. Millich, N. A. (1994). Compassion, Fatigue and the First Amendment: Are the Homeless Constitutional Castaways?’, U. C. Davis Law Review, 27. Nagel, T. (1982). ‘Libertarianism Without Foundations’, in J. Paul (ed.), Reading Nozick. Oxford: Basil Blackwell. Narveson, J. (1976). ‘A Puzzle About Economic Justice in Rawls’ Theory’, Social Theory and Practice. Nozick, R. (1974). Anarchy, State, and Utopia. Oxford: Basil Blackwell. Pettit, P. (1997). Republicanism. Oxford: Oxford University Press. Radin, M. J. (1993). ‘Property and Personhood’, reprinted in Reinterpreting Property. Chicago: University of Chicago Press. Rawls, J. (1971). A Theory of Justice. Oxford: Oxford University Press. —— (1996). Political Liberalism. New York: Columbia University Press. —— (1999). ‘A Kantian Conception Conception of Equality’ [1975], reprinted in S. Freeman (ed.), Collected Papers. Cambridge, MA: Harvard University Press.

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Reeve, A. (1986). Property. London: Macmillan. Sidgwick, H. (1981). The Methods of Ethics, 7th edn. Indianapolis, IN: Hackett Publishing Company. Spencer, H. (1865). Social Statics or the Conditions Essential to Human Happiness SpeciWed, and the First of Them Developed. New York: Appleton. Van Parijs, P. (1991). ‘Why Surfers Should Be Fed: The Liberal Case for an Unconditioned Basic Income’, Philosophy & Public AVairs, 20. Waldron, J. (1986). ‘Welfare and the Images of Charity’, Philosophical Quarterly, 36. —— (1988). The Right to Private Property. Oxford: Clarendon Press. —— (1991). ‘Homelessness and the Issue of Freedom’, UCLA Law Review, 39. —— (1993). ‘Property, JustiWcation and Need’, Canadian Journal of Law and Jurisprudence, 6. —— (2000). ‘Homelessness and Community’, University of Toronto Law Journal. —— (2001). ‘Property, Honesty, and Normative Resilience’, in S. Munzer (ed.), New Essays in the Legal and Political Theory of Property. Cambridge: Cambridge University Press. —— (2002). ‘Justice’, in I. Katznelson and H. Milner (eds.), Political Science: State of the Discipline. New York: W. W. Norton. —— (forthcoming). ‘Pettit’s Molecule’, in G. Brennan, R. Goodin, and M. Smith (eds.), Common Minds: Essays in Honour of Philip Pettit. Oxford: Oxford University Press.

9 Begging Christine Sypnowich

Should we give to beggars? Certainly most of us have many opportunities to do so. It is increasingly common to encounter people begging in the city streets of relatively aZuent societies, even in societies that have social welfare programmes designed to ameliorate economic disadvantage. Young people, people with children and pets, old people, disabled and mentally ill people, people who come from foreign lands, people with hard-luck stories, people who oVer token performances—contemporary beggars are diverse as well as pervasive. In a single city block one might encounter half a dozen people asking for money. One of the many original and important contributions to political philosophy made by G. A. Cohen is his inquiry into how egalitarian theories of social structures should aVect personal obligations. This paper takes up Cohen’s concern and applies it to the problem of whether people should give money to beggars. People committed to social equality would prefer to live in a world in which there were no beggars and social services provided suYcient resources for everyone to live a digniWed life. Begging raises an interesting question because it illustrates the tension between the claims of equality and compassion. After all, being asked for money is unsettling. It brings forth clear evidence of inequality, of the lopsidedness of advantage and luck. Yet we are unlikely to welcome the invitation to remedy inequality in these confrontations. When a beggar approaches us, the usual expectations of distance and Jerry Cohen looms large in this chapter, as a prominent Wgure in Oxford, the context in which this argument was Wrst developed; as an advocate of personal obligations of egalitarianism; and as an inspiring teacher and scholar of political philosophy. I am very grateful for his example and his friendship. This chapter was conceived whilst I was a Visiting Fellow at Corpus Christi College, the generous conditions of which were in stark contrast to the lot of the beggars in Oxford’s streets. I am grateful to the Fellows of Corpus for making room for me at their table. Thank you also to members of the Political Philosophy Reading Group and the Philosophy Colloquium at Queen’s University for helpful discussions and to David Bakhurst, Jerry Cohen, Alistair Macleod, Margaret Moore, and Arthur Ripstein for valuable comments on earlier drafts.

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respect among strangers are Xouted. We are compelled to witness hardship and suVering and to become complicit in relations of servility and degradation. The experience can prompt pity, irritation, anguish, and discomfort. We are uncertain where our moral duties lie. Thus it might be said that most of us who live and work in Western cities confront, almost daily, a small-scale ethical dilemma, the resolution of which is far from perspicuous. Whilst widely discussed in the media and everyday conversations, begging is an ethical question about which philosophers have had little to say (in their professional capacity at least). The idea of charity has had some philosophical attention, largely within a Christian framework. But getting clear about charity will not necessarily resolve the dilemmas of begging; the speciWcities of begging might override one’s principles about charitable donations. Begging has particular features: in the beggar, the subject of the potential charitable donation is on the one hand immediate and compelling, and on the other, contingent and intrusive. Thus, whether or not one is motivated to be charitable in the abstract, one might be particularly inclined—or particularly disinclined—to give to the beggar. Giving and not giving to beggars occupies ambivalent moral territory. Here are some examples I have witnessed: 1. Bill, a shabbily dressed man of about 35, begs on a street corner in Oxford. He looks disturbed, and huddles under a blanket with a young dog—the last of a litter of puppies (the rest were sold to passers-by). 2. Anna is a fashionable-looking young woman of about 25, who stops tourists in Paris to talk to them in broken English about having lost her passport and money and needing to get back to Bosnia to look after her ill mother. 3. In Kingston, Ontario, Susan is an unhappy-looking woman of about 25, who begs on her own or sometimes with who seems to be a boyfriend, with whom there are noisy quarrels about money and drinking. 4. Patrick is a cheerful, nicely dressed man, who looks 70 years old. He stands and holds an upturned baseball cap in front of a bank machine in Kingston. At Christmastime he wears a Santa hat. 5. Pierre is a thin, stooped man with one leg, who looks 70 years old. He begs in front of Notre Dame Cathedral in Paris. 6. Maria is a middle-aged woman wearing a headscarf, who begs in the Paris metro. In her lap sits a child aged about Wve years, whose lifeless body and vacant expression suggest he is drugged. 7. Tony appears to be in his late teens. He is a ‘squeegee kid’, who solicits drivers by cleaning their windshields at a busy intersection of Toronto. When not begging, he often appears to be engaged in transactions for drugs.

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8. Claude is a poorly dressed but able-bodied man of about 40. He gets on a Paris metro train and then gets down on his knees and shuZes from seat to seat to ask for money. 9. ‘Tutankhamen’ performs in front of the Muse´e d’Orsay. He or she is a small person entirely covered in gold lame´ fabric with an Egyptian mask who stands motionless on a stool. When a queuing museum patron drops money into the bowl before the stool, Tutankhamen suddenly comes to life and bows in thanks. This is very popular with children. Is there a duty to give money in any or all of these cases? How much does context aVect the moral issues of begging, or can one adduce general principles in favour of or against giving to beggars? In this chapter, I examine the phenomenon of begging and the nature and power of its moral demands to determine whether one ought to give to beggars.1 I conclude that although there are strong arguments based on principles of distributive justice and equal citizenship against acceding to the requests of beggars, there remains a humanitarian claim in favour of giving, a claim that must be addressed case by case. This complex answer is important, not only for the issue at hand but also for contemporary debates about the scope of egalitarian justice and the extent to which the personal domain must be answerable to the criteria of egalitarian distribution.

J US T I CE A ND CHA RIT Y The question of whether to give to beggars is philosophically uninteresting if there is no general duty on the part of the wealthy to give to the disadvantaged. If property ought not to be redistributed by coercive institutions such as the state, as libertarians such as Robert Nozick argue, giving to beggars is a matter of personal predilection, always in the realm of the supererogatory, the above-the-call-of-duty moral act.2 There is no point investigating the particularities of begging and their impact on egalitarian obligations if there are 1 My focus is modern industrial societies in the West—‘begging at home’ as it were—where most citizens are not poor and where poor people have the protection of social welfare institutions. The phenomenon of begging is of course a commonplace in underdeveloped countries without state-provided systems of recourse; in those instances the dilemma is rather diVerent, since on the one hand, the beggar’s case is a particularly strong one, yet on the other hand, amid swarms of needy persons, the passer-by is at greater risk when seeking to make a generous response. 2 According to Nozick (1974), after all, it is tantamount to ‘forced labour’ for individuals to be required to provide economic resources to others. Redistribution is a voluntary matter.

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no egalitarian obligations in the Wrst place. My interest in the question of begging therefore takes as its premise the validity of some idea of an obligation to contribute to social arrangements that help disadvantaged persons. Thus we must begin by stipulating, however generally, that those with insuYcient resources are entitled to assistance in some form. The very aYrmation of principles of social justice, however, might undermine the duty to give to beggars for two reasons. One is the important diVerences between duties of justice and duties of charity. Duties of justice are standardly described as ‘perfect duties’, speciWc ‘both with regard to the content of what is required and with regard to the identity of the individual who is the object of the duty’. Duties of charity, in contrast, are indeterminate in the type and amount of aid and to whom the aid is given. It is unclear, however, what status such a distinction might have (Buchanan 1987: 558, 570). Imperfect duties such as duties of charity could be rendered perfect by developing institutions that specify and enforce duties of generosity to others (ibid.). Yet, even if we are moved to render determinate duties of charity, it would be diYcult to apply such determinacy to the duty to give to beggars. Giving to beggars will be inevitably subject to vagaries of context. In any case, it is unclear whether giving to beggars can qualify even as an imperfect duty. This is in part due to the second reason why social justice is in tension with alms-giving. A commitment to the establishment and maintenance of social arrangements and institutions that help disadvantaged persons may in fact militate against the idea of a commitment to giving to beggars. If justice requires that wealth be redistributed from the well oV to the less well oV, this is properly a social responsibility to be administered by the state. The state can do a better job of ensuring that all citizens have a minimum set of resources; charity, particularly giving to beggars, is bound to be too ad hoc to be able to mitigate the deep-rooted problems of poverty. Moreover, charity, it is argued, is too contingent a means of eVecting greater equality because it relies on the unpredictable and perhaps misdirected sympathies of individuals. Unlike socialized redistribution, charity involves a paternalistic relation between those who give and those who receive that seems alien to relations of justice. If it is just that there be greater equality, the badly oV are entitled to resources; they should not have to supplicate for it. Thus, egalitarians like Rawls (1972: 7) insist that policies of justice such as his diVerence principle are public in scope, applying to the ‘basic structure of society’, applying to institutional arrangements rather than personal interactions. However, the argument for socialized redistribution is an argument against leaving redistribution solely to the vicissitudes of private charity, as

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libertarians tend to recommend. It does not show that socialized redistribution can never be ‘topped up’ by private charity. If socialized redistribution as currently organized falls short of our egalitarian goals, it may be that justice indeed requires that we supplement the provisions of the welfare state with our own charitable eVorts, if we have the means to do so. Thus Cohen argues: ‘[H]ow can one deny, without ado, that one is obligated to forgo the beneWts one enjoys as a result of what one regards as injustice, when one can forgo them in a fashion that beneWts suVerers of that injustice?’ (2000: 161). The Cohen argument for personalizing social justice indicates that giving to beggars is an obvious way of meeting our egalitarian obligations. Call this the redistribution thesis. If remedying inequality, in some general sense, is prima facie required by justice, it might follow that we should remedy inequality by giving money to people who ask for it. Many of the above examples of beggars present clear-cut situations of the less fortunate calling upon a share of the wealth of the more fortunate. Many passers-by have more income than the person begging. Susan, the unhappy woman with the drunkard boyfriend; Bill, the shabby dog-owner; or Pierre, the lame man by Notre Dame: who could deny that all these people are worse oV than the author or readers of this essay? There thus seem to be straightforward egalitarian grounds for giving money to a beggar. If we deploy Rawls’s criterion of the diVerence principle, the current unequal distribution does not advantage the manifest worse-oV person, and could be bettered by a more equal distribution, however rough and piecemeal the eVorts at equalizing by means of giving alms is bound to be. This suggests that we ought to give to beggars, all things being equal. The redistribution thesis thus produces an aYrmative answer to the problem of begging: in an unequal society, one has an obligation to remedy inequality, and giving to beggars enables wealth to be redistributed from the aZuent to the needy. There is little doubt that giving to beggars is, even if laudable as a matter of principle, a Xawed method of wealth redistribution. It suVers from an inevitable arbitrariness. Why give to this person in particular? How needy is this person and how will my donation mitigate need? Why reward this person for what is after all, at a minimum, some kind of violation of the norms of the streetscape? Why give now and in eVect withhold resources to others who may be more needy? Nonetheless, even if person A before us is less needy than persons B and C whom we do not encounter, although this encounter is unwelcome, if person A appears to be less well oV than oneself, a case for redistribution, however attenuated, remains. Thus, the redistribution thesis still holds.

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The redistribution thesis is, however, not invulnerable. Egalitarian debate is divided on the question of whether wealth redistribution is a ‘no strings attached’ obligation. What has been dubbed ‘luck egalitarianism’ stipulates inequalities merit amelioration only if they are the result of bad luck, as opposed to bad choices. The ne’er do well, the sponger, the shiftless: they are not entitled to the resources of the responsible, thrifty, and industrious.3 Many of those begging on the street have dubious claims, on this criterion. Commentators on the phenomenon of street begging allege that a large proportion of beggars are drug addicts, whose poverty is the result of their drug habits and who will use any income they get to buy more drugs. At the time of writing, the Blair government in Britain has passed some controversial legislation that makes it illegal to beg, with the argument that many beggars seek funds to support their habit. An editorial in The Observer (2003) lambasted the move as ‘an utterly disproportionate response to the needs of a vulnerable group’, violating rights to freedom of expression and association.4 But even if people have a right to beg, it does not establish that we have a duty to give money to them. Indeed, the arguments adduced for making begging illegal, however dubious for their purported conclusion, might in fact have some power in considering our duties to beggars. Thus, the Blair argument about merit counts against giving to beggars, if not in favour of banning them. Our example of Tony (the drug-taking squeegee kid, not Mr. Blair) could then be distinguished as a non-meritorious case. Of course, one can make the plausible argument that drug addiction involves compulsion, rather than choice, and thus in this case the bad luck/ bad choice distinction does not hold. Nonetheless, the motivation of this distinction, that wealth redistribution must meet criteria other than mere need, still seems relevant. The problem is not just that political philosophers are divided on the question of whether distributive justice should attend to merit or desert. This is not to open up the question of the general plausibility of luck egalitarianism. Rather, we must consider whether the case of begging in particular raises merit issues of a certain kind. In our encounters with beggars we are interested in the merit of the supplicant, not principally in 3 The best-known example of this kind of argument is Dworkin’s Sovereign Virtue (2000). See also my critique ‘The Use and Abuse of Equality’ (Sypnowich 2001). 4 In the American context, HershkoV and Cohen contend that begging is free speech that should be protected by the First Amendment of the Bill of Rights: ‘Begging is speech that attempts to engage mainstream listeners with the reality of life on the margins of society’ (1991: 896).

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terms of how they came to be begging. We might also be interested in how they beg. Thus, a merit thesis emerges, not as a species of luck egalitarianism, but as a criterion speciWc to the phenomenon of begging. The merit thesis qualiWes the egalitarian thesis by stipulating that the egalitarian consider the nature of the beggar, and whether giving money in some cases would mean giving support to wrongdoing of some kind, be it a wrong inXicted on dependants, those whom they supplicate, or themselves, if they are living in a self-destructive way. Doubtless the merit thesis will be diYcult to verify, but some of our cases provide relevant evidence. Beggars who carry their possibly doped children with them, as in the Maria case, invoke moral outrage as much as pity, and it seems fair to heed that outrage and not give money. In the Paris metro with my privileged children, I felt a particular horror observing the miserable childhood of Maria’s oVspring that actually militated against my giving money. The same can be said about beggars who are aggressive or unpleasant. Beggars who practice deception would also be excluded from giving, but of course the problem with deception is that it is diYcult to determine whether it exists or not. Thus I recall being torn in the case of Anna, the beggar with the hard-luck tale of a lost passport. I thought I should give to her if her story was true, but that I should not give to her if her story was false. I suspected the latter, but I had no real way of telling (I did not give her any money). It seems fair to adduce the merit thesis in an instance where one suspects deception, even if one cannot conWrm it; after all, if there is an obligation to give to beggars, it cannot be an obligation to give to all beggars one encounters, and thus egalitarians must deploy some rough criterion for discriminating among diVerent candidates. But is the criterion of desert marred only by diYculties of evidence? This still seems too neat a picture, where we determine the moral obligations dictated by the redistribution thesis by sorting beggars into categories of deserving and non-deserving, worthwhile and hopeless. The merit thesis suVers from a preoccupation with desert that might override considerations of need. After all, the morally dubious practices of the examples above do not disprove that the individuals involved need assistance. Perhaps the retrospective criterion of luck egalitarianism is best countered, not with a moralizing attitude to the present and the manner of begging, but, instead, with a prospective criterion. Call this the eYcacy thesis, which stipulates that the redistribution thesis must be qualiWed by considerations of how the alms will be used. One need not have a moralizing criterion that excludes beggars who do wrong, as if it is the job of the pedestrian to sort out the moral merit of diverse supplicants. Better perhaps to apply criteria that involve the ideals of social

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justice itself, where one does not give to beggars if it appears that giving resources will not have the egalitarian eVect one intends; thus the beggar’s self-destructive habits might indicate that wealth redistribution is futile. On this criterion it can be argued that the person who lives for drugs is ill deserving, even if this way of life is not exactly the province of choice and even if it renders him or her particularly needy. Thus the criterion is prospective and concerned not with moral merit, but with eYcient use of resources. This is a simple matter of eYcacy, where the presence of drugs means that need is exacerbated by the beggar himself or herself. Giving money to drug addicts will not provide them with food or shelter, but will rather fund precisely what is bad for them: more drugs. The eYcacy thesis thus produces a compelling argument against giving to beggars where one has reason to believe the money will not enable well-being. Deceivers, too, would be poor candidates on the eYcacy thesis: giving money to people with false hard-luck stories might mean giving to people who are not genuinely needy, and thus will not serve the aims of egalitarian redistribution. If you are the well-oV person who confronts the destitute person in a city street, you might think that both the merit and eYcacy theses are poor guides. The demand that redistribution meet conditions of blamelessness or eYcacy is very well in the abstract. Even if countered by the merit or eYcacy theses, the redistribution thesis might still have weight of some kind. Let us rename it the need thesis. The person in need nonetheless stands before you, no less needy, however complicit he or she is in the disadvantage faced, however suspect his or her account of the origins of the need, and however poor use the person might make of any funds available to him or her. To refuse to give to such a person seems to miss some other features that are speciWc to what we might call the phenomenology of begging. Let us look at a few such features.

DEGRADATION A ND SERVILITY, CITIZENSHIP AND SOLIDA RITY Avishai Margalit argues that a decent society ‘Wghts conditions which constitute a justiWcation for its dependants to consider themselves humiliated’. Humiliation is an injury to a person’s self-respect that results from the behaviour of others (Margalit 1996: 9–11). Poverty is a kind of humiliation, Margalit claims, which is caused by the human action of third parties, even if not intended by human beings; institutions and policies can cause poverty

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(ibid. 226).5 HershkoV and Cohen thus hold up begging as a way of countering humiliation: ‘Begging is a reassertion of the human being who lies beneath . . . dehumanising thoughts and images’ (1991: 896). Perhaps begging is a way of mustering self-respect in contrast to the mere state of poverty, or in particular homelessness, where as Waldron (1993a) notes one does not even have the liberty to perform basic human functions, since one has no access to property to do so. Giving to beggars is thus a way of expressing the social solidarity of citizens. Begging is inevitably an inadequate means for mustering dignity, however, since it involves precisely drawing attention to one’s degradation. The very fact that a person is begging indicates that he or she is less fortunate than those from whom the person begs. The misfortune is not just the material disadvantage that triggers liberal principles of distributive justice discussed above. Begging is a feature of a lesser life if only because it involves self-humiliation of some kind. Tutankhamen, shabby dog-owner Bill, Patrick with or without his Santa hat, unhappy Susan with the drunkard boyfriend—all make their supplications in a posture of self-degradation. And the spectacle of degradation seems to demand a humanitarian response that sits ill with the luck egalitarian case, with its insistence on the criteria of entitlement. How can we simply put aside the brute fact of human suVering in order to specify the merit of a particular beggar? Even if we suspect the supplicant’s story, or Wnd him or her the author of his or her own misfortunes, or are sceptical about the purposes to which money might be put, he or she remains needy nonetheless. We may well brush aside the story of a beggar like Filch in Brecht’s Threepenny Opera who cynically recites: I’ve been down on my luck since a boy. Mother drank, father gambled. Left to my own resources at an early age, without a mother’s tender hand, I sank deeper and deeper into the quicksands of the big city. I’ve never known a father’s care or the blessings of a happy home. So now you see me . . . bereft of all support, a prey to my baser instincts. (Brecht 1979: 6)

Filch is something of a hustler, who opportunistically seeks out the wares of Peacham’s outWtting shop for beggars to secure the trappings of what Peacham cynically dubs ‘the basic types of misery, those most likely to touch the human heart’ (ibid. 8). It remains true, however, that Filch begs because he is without resources or opportunities. He is needy all the same, and the presence or absence of moral rectitude seems beside the point. ‘What 5 See Orwell (1949) for an evocative description of the humiliations of poverty (though marred by anti-Semitism). There is some controversy as to whether Orwell himself experienced what he presents as an autobiographical account.

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keeps mankind alive?’ Brecht answers: ‘[F]ood is the Wrst thing, morals follow on.’ Thus: Make sure that those who now are starving Get proper helpings when we do the carving. (ibid. 55–6)

The example of Claude, the prostrate beggar on the Paris metro, highlights the problem of humiliation. Claude’s self-abnegating posture on the metro was oVensive. Indeed, a metro passenger implored Claude to get oV his knees (in the spirit, I like to think, of the French Republic and its insistence on the equal citizenship of all French citizens). Begging of this sort involves some kind of violation of the norms of equal citizenship, which presupposes each citizen’s claim to self-respect and human dignity.6 Of course Claude, once upright, was more insistent in his supplications. It was as if the passenger was called upon to oVer proof of their social equality by equalizing, in some small measure, her resources—which she did, and rather generously. Having secured the rectiWcation of Claude’s servility she owed him generosity, perhaps, now on the terms of solidarity among citizens, rather than feeling an obligation to give alms because his need was so forcefully manifest that he was prepared to ‘stoop’ to such a form of begging. The fact that the practice of begging involves self-denigration thus emerges as a reason for refusing to accede to the beggar’s requests; the passenger made a posture of self-respect a condition for her giving to Claude. Tutankhamen also prompts this reaction. For the performance, though impressive, involves a person pretending to be a thing, entertaining onlookers with sudden evidence of animation. That the children who are so amused are much better oV than the supplicating adult within the uncomfortable costume, seems to underline the distorted relationship among fellow human beings. As Tutankhamen bows over and over and over again each time a coin is tossed into his hat, the crowd’s mood changes from delight to embarrassment, conscious of their guilt in inXicting some kind of humiliation. This is a spectacle of which the advocate of equality should want no part. Yet, as Claude must have calculated, the more ‘upright’ he appears to be, the less compelling is his case. Thus beggars who profess that begging is a kind of job they do ‘nine-to-Wve’, which is more rewarding than many others, might mitigate the problem of humiliation but at the cost of undermining their claim of abject need. Of course, the relationship between beggar and passer-by is complex. It may be that it is the latter, not the former, who risks humiliation in these encounters. That is, beggars can prey on the vulnerability of pedestrians and 6 Anderson (1999) makes self-respect the measure of equality in ‘What is the Point of Equality?’.

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seek to humiliate them in order to compel donations; begging can be a kind of extortion. Certainly one can feel victimized by beggars, if they are aggressive, or if they hustle with false stories or persistent appeals. Brecht’s depiction of Filch illustrates the humiliation of the rich, who must be ‘taken in’ before they are charitable. The beggar thus sometimes seeks to ‘score’ oV the unsuspecting and gullible. The prospect of this kind of relationship is no less attractive than the stereotypical one of pitiful beggar and benefactor. ‘Humiliate or be humiliated’ is hardly an ideal form of human interaction among citizens. Ultimately, then, what we might call the humiliation thesis, that begging involves humiliating relations among people, undermines the case for almsgiving rather than strengthens it. In this context it is worth considering what has been called the ‘charity paradox’. The charity paradox arises because ideally charity is bestowed merely out of altruistic motives of doing good for others without the expectation of reward. As such, however, it suVers from an asymmetry where the giver gets no beneWt from giving and the principle of mutuality in gift-giving is broken. The recipient’s position is conWrmed as inferior (Margalit 1996: 244–6).7 The idea of the charity paradox overlooks how many gifts are reciprocated with a mere thank you, without incurring any humiliation on the part of the recipient. Perhaps what is really at issue is not reciprocity, but the capacity to reciprocate. Thus very expensive gifts often do cause embarrassment partly because the recipient could not match such generosity. Buskers, street performers who entertain on street corners before an upturned cap, might seem to get around the charity paradox by oVering something in exchange for alms. Tutankhamen is thus an example of a busker, rather than a beggar. But the performance is, after all, essentially an expression of gratitude for alms-giving. And it thus conWrms the humiliation of the recipient of charity rather than corrects it. The servility of begging is underscored in such a performance and thus makes for a justiWed ambivalence about the morality of participating in such a relationship. Moreover, some commentators have complained that what we might call pseudo-symmetry, where what is on oVer from the beggar is not worth having or explicitly unwanted, is worse than good old-fashioned begging. We have all encountered beggars with no musical talent who nonetheless scrape violins or bumble on drums. The supplications of Tony the squeegee kid who insistently cleans my windshield are probably worse than a more asymmetrical bald request for money. The same might be said of people who peddle homeless publications like the British Big Issue. Public opinion is divided on 7 Margalit notes that this consideration undermines the idea of the welfare state as socialized charity, proposed by Titmuss (1950), who held up blood donations as a model for the redistribution of wealth.

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whether giving money in such cases is better or worse than giving money unconditionally. In The Guardian, Liddle fulminates: ‘The notion that we will be happier handing over our one pound because at least the poor dosser has done a good day’s hard work, even if it is distributing something almost entirely useless . . . smacks of the workhouse . . . give him the money anyway’ (2002).8 Ditto the case of Claude. He might have hoped that the extreme servility of his begging was some kind of evidence of merit. This just shows how ludicrous the idea of earning alms can be, as though the beggar is ‘working’ for his or her money by self-abnegation (and thus meets the luck egalitarian’s criterion of industrious choices marred by bad brute luck!). One feels humiliation before others, if not because of them. One can contribute to one’s own humiliation, as the decision to beg illustrates. Indeed, Margalit also contends that the individual suVers humiliation in precisely the circumstance of begging: ‘Begging for alms is humiliating.’ What is crucial for our purposes here, though, is the reaction of others to the self-humiliation. Should we ignore it, or participate in it? Giving money in some sense aggravates the humiliation: ‘the attempt to mitigate the humiliation does not succeed even when the alms-giver acts with a willing heart’ (Margalit 1996: 231–2). And it thus seems that those who believe in the importance of a ‘decent society’ might, on the one hand, exhibit sympathy and generosity to beggars in order to mitigate the humiliation of poverty; but the humiliation thesis suggests they might, on the other hand, just as reasonably refuse to participate in the humiliation of begging, whether it is the humiliation of the beggar or of themselves that is at issue.

B EYON D B E G G I N G Begging is a social blight, and it is reasonable that the egalitarian is unwilling to support or encourage it. As Frederick Engels noted, the beggar is a ‘pariah’ cast out of society, deprived of his or her last shred of self-respect. And when the wealthy person gives to the beggar, he or she conWrms the beggar’s status as a lesser being: ‘[T]he recipient is trodden even deeper into the mud than he was before.’ In The Condition of the Working Class in England, Engels lambasted the bourgeoisie for their attitude towards beggars, citing a letter to the editor signed ‘A Lady’ that deplored ‘such disgusting and revolting sights’. 8 Walzer notes how hunger is a need that should constitute its own criterion of distribution: ‘Hungry men and women don’t have to stage a performance, or pass an exam, or win an election’ (1983: 75).

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Engels’s own socialist ideal, however, involves some sense of abhorrence for this particular method of ameliorating poverty. Much though he might mock that the bourgeois insists to beggars ‘You must promise to stay in your dark dens and not disturb my delicate nervous system by displaying your misery in public’ (1845: 313–15), Engels certainly sought a society where begging would no longer be manifest. One of the arguments for the welfare state is that it eliminates the need for unwelcome kinds of welfare redistribution, be they begging or, for that matter, theft. As Waldron puts it: ‘[T]he welfare state is a way of ensuring that no one should ever be in such abject need that he would be driven to violate otherwise enforceable rules of property’. Social welfare or ‘compulsory charity’ is the ‘enforcement of passive forbearance in the face of a needy person helping himself to resources’ (1993b: 245–6). Thus the egalitarian aims for a society with a just system of resource distribution, not only to ensure that individuals’ needs are eVectively met but also so that individuals need not be called upon to forfeit their own interests, pursuits, and privacy in order to perform ‘mini redistributions’ themselves. The welfare state also has the advantage of eYcacy. In making charitable donations, one always has the nagging concern about how much diVerence one’s contribution will make. This might entail a worry about free riders, where others renege on their obligations of charity leaving one to provide what will inevitably be insuYcient aid (Buchanan 1987: 565).9 Even if others do contribute, contributions may be insuYcient or poorly targeted. These worries are compounded in the case of giving to beggars, where one’s contribution of ‘$1 for a cup of coVee’, for example, is not going to radically alter the recipient’s prospects. It is a drop in the bucket, as it were. Better to have a state-provided system of welfare that ensures assistance is at satisfactory levels, and where this is not the case, institutions of charity that citizens can collectively support with some conWdence in their eYcacy. However, the welfare state as it is currently organized does not remove the need for begging. Many beggars are unable to work and beg in order to supplement inadequate social payments (Chiang 2003). Others are mentally ill, discharged ‘into the community’ where they are incapable of fending for themselves or even availing themselves of available public services. Some needy people—like Anna stranded in Paris if her story is true—‘fall through the cracks’ of the system and are not able to get assistance. It turns out that the duties of justice, as speciWed by the welfare state at least, are imperfect after all, unable to properly specify the beneWciaries of amelioration. Such considerations indicate that justice requires extra duties on the part of egalitarians. 9 See Heath’s appeal (2001) to the ‘eYciency’ of the welfare state in The EYcient Society.

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These duties may be to devote resources and energy towards eVorts to improve the system of welfare provision, or they may involve supplementing our contributions to the welfare state with charitable donations (soup kitchens, food banks). Or perhaps we should give money to a speciWc category of individuals who have no other recourse; for example, stranded foreigners, like Anna, if she is to be believed. Ultimately, however, the egalitarian pedestrian, happy to write a generous cheque for charity, is justiWed in wanting no part of the social interaction occasioned by beggars. Giving to beggars is a social blight: it involves complicity in a relationship of humiliation; it cannot accurately target need and is thus of doubtful eYcacy.

BEGGING AND SUPEREROGATION My argument thus far has oVered grounds for repudiating the principle that one should give to beggars as a matter of justice. This is not to impose a rigid distinction between justice and charity. Duties of justice might in fact involve duties of charity.10 Egalitarians admit that personal prerogative can limit the demands of social justice, arguing that one might withhold charitable contributions in order to enable expenditures on oneself or those one loves.11 If this is so, it is certainly legitimate for the person who abhors encounters with beggars to exercise a personal prerogative and avoid giving money, particularly if the person is in fact a generous donor of charitable aid in other contexts. But if the personal prerogative cannot ‘trump’ duties of social justice,12 it remains that we have adduced a number of reasons why individuals do not have a duty to give to beggars. One is entitled to exercise a personal prerogative and fulWl one’s charitable duties in other ways. Even if we are convinced that advantaged individuals are obligated to ‘top up’ the inadequate egalitarian provisions of the welfare state, this does not indicate that we are obligated to give to beggars. There are too many factors that weigh against giving to beggars as a method of wealth redistribution. The redistribution thesis is outweighed by three theses: merit, eYcacy, and humiliation. In sum, egalitarian principle is at odds with the practice of begging, both on grounds 10 See Buchanan’s illuminating argument (1987) against such a distinction in ‘Justice and Charity’. 11 Rawls argues that principles of justice should not be ‘all controlling’. (1972: 565). Cohen (1992: 303) grants a ‘self-interest prerogative’, which he claims is too limited to permit great inequality. See Estlund (1998) for a defence of Rawls against Cohen. 12 I maintain that the prerogative lacks a trumping aspect only under narrowly speciWed conditions, where the institutions of social justice are severely inadequate. I discuss this further in my forthcoming book ‘Equality Renewed’.

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of the requirements of social justice and on grounds of the non-humiliating relations appropriate for citizens. Is that all there is to be said? Surely there remains a case for giving to beggars that we need to capture philosophically. Let us return to the idea of supererogation. Supererogation is a way of describing moral acts that are not obligatory: supererogatory acts are praiseworthy to perform but not blameworthy to omit. Thus according to the idea of supererogation, we do good when we give to beggars, even if we are not morally required to do so. Supererogation, however, misdescribes the dilemma we confront with the question of begging. It is not that giving to beggars is, however mundanely, ‘supergood’ in contrast to the merely good. It is not an act that is simply above and beyond the call of duty. Rather, giving to beggars is ambivalent as a good per se. We have seen reasons to think that giving to beggars is a basic act of human kindness that is obligatory. Yet we have also seen reasons to think that giving to beggars is a potentially misplaced form of kindness, a bad; indeed, giving to beggars may be positively blameworthy in some sense. Moreover, supererogation has been deployed to draw a line between justice and moral ‘extras’ resulting in a rather parsimonious understanding of our duties of justice. Thomson’s argument (1974: 13) in favour of abortion, where helping others in life and death situations is a matter of mere personal choice, is a good example of such moral parsimony.13 It would be contrary to our robust understanding of egalitarian principle, where if we live in an unequal society we are in fact obligated to be generous, to describe giving to beggars in that way. Yet we face the problem that a policy of generosity may not be best realized by giving to beggars. We could leave our inquiry there, and conclude that one should not give to beggars. Yet it is hard to deny that what we have termed the phenomenology of begging conXicts with such a conclusion. The manifestation of a person in need who asks for help indicates a moral claim of some kind. The spectacle of human suVering occasioned by the beggar is famously illustrated in Shakespeare’s King Lear (1975) where Lear’s Xight to the heath enables him to encounter, and participate in, the misery of his most unfortunate subjects. The characters in the play are moved to both pity and generosity. The blinded Gloucester proclaims to the beggar who turns out to be his son: Here, take this purse, thou whom the heaven’s plagues Have humbled to all strokes. That I am wretched Makes thee the happier. Heavens, deal so still! 13 See Sypnowich (1993) for a critique of Thomson.

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Let the superXuous and lust-dieted man That slaves your ordinance, that will not see Because he does not feel, feel your power quickly; So distribution should undo excess, And each man have enough. (King Lear, ibid. IV, i, 547, ll. 64–71)

Thus redistribution is demanded in particular in the case of the beggar, whose manifest lack of well-being dictates a sympathetic response. IgnatieV ponders the play’s lessons and concludes that Lear instructs us that ‘the test of human respect is in life’s hardest cases: not in one’s neighbour, friend or relation, but the babbling stranger’ (1984: 42). The appeal to a basic humanity remains in the confrontation with people who beg on city streets. To dismiss this appeal is cruel, even if grounded in sound egalitarian principle. Moreover, being impervious to the appeals of beggars is a way of injuring ourselves. Egalitarianism requires not just adherence to just principles, the formulation of good policy, and the development of sound arguments but also that we cultivate an egalitarian sensibility. This is not only a concern or care for others that grounds and nurtures egalitarian institutions but is also a posture that enables self-development, or what is commonly called, after Aristotle, the cultivation of the virtues.14 Who would want to Wnd oneself displaying a callous indiVerence in repeated encounters with beggars so well described by Brecht: Man has the abominable gift of being able to deaden his feelings at will, so to speak. Suppose, for instance, a man sees another man standing on the corner with a stump for an arm; the Wrst time he may be shocked enough to give him tenpence, but the second time it will only be Wvepence, and if he sees him a third time he’ll hand him over to the police without batting an eyelash. (1979: 5)

How to eVect a responsiveness to those in need will depend very much, of course, on context. Perhaps one should suspend disbelief in hearing the hardluck story of an Anna, at least on occasion. From time to time egalitarians should show compassion to those who manifest human misery, be they Bill with his dog, Susan with her drunkard boyfriend, or lame Pierre. A particularist approach is unavoidable; there are no hard and fast rules.15 Contextual factors include one’s assessment of the beggar and the merits of his or her appeal, as well as the mundane personal prerogatives of the passer-by, of inclination, time, or energy. The duty to give to beggars remains tenuous, and it is one that need not be met on any consistent or routine basis. 14 The most articulate revival of this theory is that of MacIntyre (1981). 15 See Hooker and Little (2000) for an interesting set of discussions about the role of context and the particular in moral reasoning.

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CONCLUSION The problem of begging sheds light on a number of issues in egalitarian debate. The increase in begging in the streets of aZuent societies with social welfare systems raises acutely the demand to personalize justice. We live in societies with persisting forms of disadvantage, and thus charity has an important role to play in the policies and principles of egalitarianism. Actual human experiences of encounters with beggars cast doubt on the practical plausibility of a preoccupation with merit in luck egalitarianism; poor choices seem beside the point when confronting palpable need. The problem of begging also shows there are diYculties in deploying supererogation in an egalitarian framework. Giving to beggars has aspects of moral duty and moral fault ill served by the concept of the non-obligatory moral act. The issue of begging highlights the importance not just of resource distribution but also the non-humiliating social relationships of equal citizens in the arsenal of egalitarian principles. Finally, the phenomenology of begging demonstrates the importance of developing an egalitarian sensitivity in one’s dealings with the worse oV, even when abstract principle dictates a diVerent course. Whether or not to give to beggars remains a moral dilemma. There is much the egalitarian can do, besides pay taxes to the welfare state, to render his or her society more equal. Donations to charity are an important supplement to the inadequate egalitarian policies of welfare states in contemporary societies characterized by both aZuence and hardship. One can also volunteer one’s time to public service groups and egalitarian political organizations. Giving to beggars, however, is a Xawed form of egalitarian rectiWcation. The arguments of social justice and the dignity of citizenship both tell against a policy of generosity to beggars. Yet we are left with the persisting doubt that it would be a violation of a fundamental norm of humanity to simply forswear beggars, to always refuse the shabbily dressed person so manifestly worse oV than oneself who asks: ‘Spare any change?’

REFERENCES Anderson, E. (1999). ‘What Is the Point of Equality?’, Ethics, 109. Brecht, B. (1979). The Threepenny Opera: Bertolt Brecht Collected Plays, vol. 2. London: Methuen. Buchanan, A. (1987). ‘Justice and Charity’, Ethics, 97.

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Chiang, J. (2003). ‘The Life of a Panhandler: One Man Gives Us a Glimpse’, Kingston Whig Standard, 27 December. Cohen, G. A. (1992). ‘Incentives, Inequality and Community’, in G. B. Peterson (ed.), The Tanner Lectures on Human Values, vol. 13. Salt Lake City, UT: University of Utah Press. —— (2000). If You’re an Egalitarian, How Come You’re So Rich? Cambridge, MA: Cambridge University Press. Dworkin, R. (2000). Sovereign Virtue. Cambridge, MA: Harvard University Press. Engels, F. (1845). The Condition of the Working Class in England. Estlund, D. (1998). ‘Liberalism, Equality, and Fraternity in Cohen’s Critique of Rawls’, Journal of Political Philosophy, 6(1). Heath, J. (2001). The EYcient Society. Toronto, Canada: Viking. HershkoV, H. and Cohen, G. A. (1991). ‘Begging to DiVer: The First Amendment and the Right to Beg’, Harvard Law Review, 104. Hooker, B. and Little, M. (eds.) (2000). Moral Particularism. Oxford: Clarendon Press. IgnatieV, M. (1984). The Needs of Strangers. London: Chatto & Windus. Liddle, R. (2002). ‘Who Reads the Big Issue?’, The Guardian, 3 July. MacIntyre, A. (1981). After Virtue. London: Duckworth. Margalit, A. (1996). The Decent Society. Cambridge, MA: Harvard University Press. Nozick, R. (1974). Anarchy, State, and Utopia. New York: Basic Books. Observer, The (2003). ‘It Beggars Belief—Support, not Arrest, is the Answer,’ 9 March. Orwell, G. (1949). Down and Out in Paris and London. London: Secker & Warburg. Rawls, J. (1972). A Theory of Justice. Cambridge, MA: Harvard University Press. Shakespeare, William (1975). King Lear, in M. H. Abrams (ed.), The Norton Anthology of English Literature. New York: W. W. Norton. Sypnowich, C. (1993). ‘Justice, Community and the Antimonies of Feminist Theory’, Political Theory, 21(3). —— (2001). ‘The Use and Abuse of Equality’, Literary Review of Canada, November. Thomson, J. J. (1974). ‘A Defence of Abortion’, in M. Cohen, T. Nagel, and T. Scanlon (eds.), The Rights and Wrongs of Abortion. Princeton, NJ: Princeton University Press. Titmuss, R. (1950). Essays on the Welfare State. London: Unwin. Waldron, J. (ed.) (1993a). ‘Homelessness and the Issue of Freedom’, in Liberal Rights: Collected Papers 1981–1991. Cambridge: Cambridge University Press. —— (1993b). ‘Welfare and Images of Charity’, in Liberal Rights: Collected Papers 1981–1991. Cambridge: Cambridge University Press. Walzer, M. (1983). Spheres of Justice. New York: Basic Books.

10 Impartiality, Solidarity, and Distributive Justice John E. Roemer

INTRODUCTION The construct of the veil of ignorance (VI) has been of signiWcant import in political philosophy during the last half century; three prominent writers— John Harsanyi, John Rawls, and Ronald Dworkin—have employed it in diVerent forms. Although these three disagree on exactly how thick the veil should be, each uses it as a tool to enforce impartiality in the procedure that deduces what the worldly distribution of resources or wealth should be. The VI thought-experiment model is putatively impartial because the ‘soul’ or ‘souls’ or ‘parties’ or ‘observer’ who contemplate(s) behind the veil are (is) deprived of precisely that information that the author deems to be morally arbitrary. There are four important terms regarding VI thought experiments, whose roles I wish to disentangle: impartiality, self-interest, rationality, and representation. For the VI constructions that I study below of Harsanyi and Dworkin, I use the following terminology: there are persons in the real world, represented by a soul or souls behind the veil. The persons are modelled as selfWritten for G. A. Cohen’s festschrift. For almost twenty-Wve years, Jerry Cohen has tutored me in political philosophy, conducting his lessons, in part, by scribbling marginalia in my working papers. Although I am still not a philosopher, my vision and life plan have been immeasurably expanded and redirected, respectively, by what I have learned from him. For this, my gratitude is likewise immeasurable. I thank Shelly Kagan for ruminations about impartiality, Klaus Nehring and Ariel Rubinstein for mathematical insights that advanced the work reported upon here, Juan Moreno-Ternero for our collaboration on a paper that proves the results stated in this chapter, Marc Fleurbaey for a variety of comments, and Robert Hockett for tenaciously challenging my inadequately defended claims.

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interested: each is concerned with only his own welfare, which is a function of only his own wealth. (Thus, the economic environment is classical.) A soul is representative and rational: representative in being a perfect agent of the person for whom it stands, and rational in the sense of recommending that wealth distribution which is in the best interest of its person, given the information it possesses. An allocation rule is impartial if it makes use only of information about persons that is morally relevant. (The term ‘morally arbitrary’ is not precisely deWned, which means that impartiality will remain a vague concept.) It is not, however, intended to be the antonym of ‘morally arbitrary’. Its antonym is ‘morally irrelevant’. For example, it may be morally arbitrary that a person is born rich. That information is also morally relevant—it can be taken into account by a theory of justice. (A person’s eye colour, for example, is morally irrelevant: it should not be taken into account by a theory of justice.) The VI is an allocation rule : it is a procedure that takes data about the real world as an input and produces a recommended allocation of resources as its output. Thus self-interestedness is a property of worldly persons, rationality and representation (or, better perhaps, loyal agency) are properties of souls, and impartiality is a property of allocation rules. I prefer this terminology to saying that souls are impartial behind the VI. A soul cares only about its person: in this sense, it is not impartial—it is, indeed, very partial. Impartiality, I believe, is better construed as a property of rules or institutions. From quite a diVerent vantage point, another group of political philosophers (which has a non-empty intersection with the Wrst group) has been concerned to argue that justice requires that priority be given to the worse oV. The most extreme form of priority is advocated by Rawls, for whom diVerences in amounts of primary goods accruing to people are only morally permissible if they maximize the level of primary goods accruing to the worst oV (i.e. he or she who is least endowed with primary goods). Rawls (1971) attempts, unsuccessfully in my view, to argue for this principle using his VI (original position) construction.1 Many have viewed the diVerence principle as too extreme, and ParWt (1997) has coined the term prioritarianism for the view that the worse oV should be given priority over the better oV with respect to resource allocation, but that they need not necessarily receive the extreme priority that characterizes maximin (the diVerence principle). Other philosophers who would identify themselves with either a prioritarian or egalitarian or diVerence-principle view include Brian Barry (1995), G. A. Cohen, 1 See Roemer (1996) for some aspects of my view of the inadequacy of Rawls’s argument from the original position.

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Thomas Scanlon (1998), and Larry Temkin (1993). There are surely many more. I include together the three views just mentioned because prioritarianism is a weakening of egalitarianism and the diVerence principle: if a rule is egalitarian or maximin, it is surely prioritarian.2 Those who advocate priority short of maximin do so usually because they consider the costs of implementing the diVerence principle too great—costs borne by the better oV. In this chapter, I summarize recent research in which I show that the VI, when formulated in a rigorous way, is inconsistent with prioritarianism: to be precise, it will often recommend distributions of wealth that give priority to the better oV.3 If one insists that justice requires impartiality (or, more formally, that an allocation rule that implements justice must be impartial), which I and almost all others do, it seems one must conclude from this demonstration that either justice is not prioritarian or the VI improperly captures the kind of impartiality required of justice. I adhere to the view that justice is at least prioritarian, by which I mean not to exclude the diVerence principle, and in particular, the radical variant of it formulated by Cohen (1992).4 If the VI is impartial in the sense that justice requires, and it is antiprioritarian, must one conclude that justice is not prioritarian? One approach to resolving the problem would be to argue that the VI experiment does not model the kind of impartiality that justice requires. Pursuing this approach would require a careful conceptualization of impartiality, allowing one to delineate its several species. I, at least, do not see how to do this. I believe that, qua impartiality, the VI thought experiment is just Wne. The alternative route, which I describe here, is to argue that any allocation rule that delivers distributive justice must satisfy some principle in addition to impartiality, and then to show that the conjunction of that new principle and impartiality excludes the VI—more strongly, that their conjunction (intersection) implies prioritarianism. Indeed, my proposal is that the additional principle be one of solidarity. I will delineate a formal model of wealth allocation, in an environment that poses the problem of distributive justice in a stark way. I will then propose, formally, what impartiality, solidarity, and priority require, and will show that the conjunction of impartiality and solidarity implies priority. Moreover, I 2 One could argue that egalitarianism does not imply priority, in the sense that (2,2) is more egalitarian than (3,4), but the worse-oV person is better oV in the second allocation than in the Wrst. Thus priority could recommend (3,4) but equality (2,2). One could, however, also argue that in (2,2) the Wrst person is given greater priority than in (3,4). I pursue this no further. 3 An early form of this work is available in Roemer (2002); that article has an error, to which I shall alert the reader below. 4 In Cohen’s view, an allocation is not truly maximin if those who are better oV could transfer wealth to those worse oV, while still remaining better oV than the latter after the transfer. That they selWshly may wish not to do so is not germane.

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will deduce precisely which wealth-allocation rules satisfy the axioms of impartiality and solidarity. These rules will all be prioritarian, and will be further characterized as a precise class of prioritarian rules. A caveat is in order. I provide no argument that solidarity must be an axiom of justice, although there is a long history to the idea of solidarity, and perhaps to the view that justice requires it.5 My study of the VI, and its antiprioritarian consequences, leads me to suggest that some other basic principle besides impartiality is needed to characterize justice. As I said, I do not reject the view that the VI is an impartial procedure for deciding upon the distribution of wealth: my method for excluding it, as the determinant of justice, is that it fails to satisfy another principle of justice. I want the other principle that it fails to satisfy to be something more fundamental than priority. I suggest here that solidarity, as I shall model it, is indeed more basic than priority (as I shall model it). Other principles that one might want to consider to append to impartiality, in lieu of solidarity, are fraternity or reciprocity. I discuss this brieXy below. My stance places me in disagreement with the implication of the title of Barry’s book Justice as Impartiality (1995). I do not believe that the kind of justice Barry wishes to derive can be shown to follow from impartiality alone, as his title suggests. I believe that, if Barry deduces justice of the prioritarian variety—I take him to be a prioritarian and perhaps even a maximinner—he must be smuggling in some assumption, like solidarity, to do the work. Perhaps I am at odds with the Kantian tradition as well, for arguably Kant believed that justice was characterized by impartiality and rationality. (The Kantian imperative is a statement of impartiality of a kind.) Similarly, if Scanlon (1998) deduces a prioritarian kind of justice, the ‘reasonableness’ of proposals that plays the key role in his theory must, I claim, have embedded within it a conception of solidarity—or something like it. I do not prove that prioritarianism can be deduced only by appending an axiom of solidarity to impartiality. I prove that solidarity and impartiality suYce to deduce it, and indeed, to deduce something narrower than priority, tout court. My conjecture is that any argument that deduces prioritarianism (or something stronger, like maximin) must take as an axiom something like solidarity or fraternity. This is a statement that is undesirably vague, but I hope my meaning is nevertheless fairly clear. The hope of demonstrating that justice requires distributions that are moderate in inequality from principles that appear to be neutral, or not biased towards equality (in the sense that 5 I say ‘perhaps’ because, in the labour movement, solidarity has certainly been a strategy, if not obviously an ethical canon. But the strategy has appeal, arguably, not only because it produces strength but also because it is morally right.

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impartiality, rationality, and self-interest are not, but solidarity is), cannot, I believe, be realized. This may be a disappointment for the Left. For it has been a seductive goal to show that left-wing desiderata (prioritarianism or egalitarianism) can be deduced from premises that will attract almost universal assent.6 I believe this goal is unachievable. To derive the principles of distributive justice advocated by left-liberal political philosophers, one must, I now believe, postulate quite egalitarian premises. Cohen (1995: 229–30) argues similarly, when he writes that the Nozickian thesis of self-ownership cannot be denied as an inference from premises that are more fundamental than it, and universally appealing.

THE HARSANYI VEIL OF IGNORANCE Harsanyi (1953) proposed the Wrst precise model of the VI. Suppose there are N individuals, each of whom possesses von Neumann–Morgenstern (vNM) preferences over wealth lotteries. Denote vNM utility functions on wealth for these people by u1 , u2 , . . . , uN . There is an amount of wealth W to be divided among them. What is the just division? Harsanyi proposes to conceptualize a single impartial observer (IO) who will become one of these people, with equal probability of becoming each one. How would such an observer allocate the wealth? The IO’s data consist in the set {u1 ,u2 , . . . ,uN ,W }. Denote by (W,i) the extended prospect that means ‘becoming person i with wealth W ’. Harsanyi proposes that the IO, to solve his problem, must himself or herself possess a vNM utility function U deWned on extended prospects (i.e. he or she must be able to evaluate lotteries on extended prospects). We can then represent the ‘birth lottery’ through which the IO becomes a particular person, and in which the distribution of wealth among the individuals is (W 1 ,W 2 , . . . ,W N ) by: ‘¼[

1 1 1
(W 1 ,1),
(W 2 ,2), . . . ,
(W N ,N )]: N N N

This is to be read: ‘With probability 1/N, the extended prospect (W 1 ,1) is realized (and the IO becomes person 1 with wealth W 1 ), with probability 1/N the extended prospect (W 1 ,2) is realized, and so on.’ Now the utility the IO receives from this lottery is, by the expected utility property, equal to:

6 My father often argued that if one granted him the premise that life is better than death, he could prove that socialism is superior to capitalism.

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(2:1)

So the IO need only Wnd the distribution wealth that maximizes expression P of (2.1) subject to the constraint that W i ¼ W . That distribution is the one he or she would choose, and therefore, the one that justice recommends. The problem, then, is to deduce what the function U is. Harsanyi takes an axiomatic approach to this problem. He assumes what he calls The Principle of Acceptance. When contemplating wealth lotteries in which the individual i is Wxed, the IO should accept the vNM preferences of individual i. Formally, this says: .

for each Wxed i, the function U (  ,i) represents the same vNM preferences on wealth lotteries as ui (  ) represents.

Now the vNM theorem tells us that any two vNM utility functions that represent the same preferences must be positive aYne transformations of each other. Therefore: .

for all W and i, there exist ai > 0 and bi such that U (W ,i) ¼ ai ui (W ) þ bi :

Substituting formulae (2.2) into (2.1), we have: X 1 X 1 U (W i ,i) ¼ (ai ui (W i ) þ bi ) N N i i 1 X i i i 1 X i a u (W ) þ b: ¼ N i N i

(2:2)

(2:3)

Maximizing the right-hand side of equation P (2.3) is equivalent to choosing the distribution of wealth that maximizes ai ui (W i ), because the Wnal term is just a constant. That is the end of Harsanyi’s argument: the IO must maximize some positive weighted sum of the vNM utilities of the individual persons. But the argument is unWnished, for Harsanyi has provided no way of determining the values of the positive numbers {ai ji ¼ 1,2, . . . ,N }, so he has not determined the vNM preferences of the IO. Furthermore, there is no way to derive these values from the information that Harsanyi has provided to the IO. A moment’s thought will show why this is so. The only information the IO has consists in the proWle of risk preferences of the individuals, and the total wealth to be allocated. But to decide whether he or she would rather become

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Alan with $1,000 or Barbara with $3,000, the IO must be able to compare how well oV Alan is with $1,000 with how well oV Barbara is with $3,000. (Or the IO must have some independent reason to prefer to be, e.g., Alan.) There is no way to avoid such comparisons, and there is no way the IO can make them with the information he or she has. There is, in Harsanyi’s speciWcation of the problem, absolutely no information permitting interpersonal welfare comparisons. The vNM preferences of the individuals are purely ordinal preferences that measure ‘utility’ in a non-comparable way across persons.7 I propose what now appears to be the obvious move: to amend Harsanyi’s model by providing the IO with additional information, allowing him or her to perform interpersonal welfare comparisons. To this end, I assume that there is a complete order on extended prospects, denoted . The statement (W 1 ,1)  (W 2 ,2) means ‘person 1 with wealth W 1 is at least as well oV as person 2 with wealth W 2’. The strict preference is denoted  and welfare indiVerence is denoted . This order is to be thought of as a fact, a statement about how the persons in the world experience life: it is not the subjective view of the IO. I now append what I name the Principle of Neutrality (PN): U (W i ,i)$U (W j ,j) , (W i ,i)  (W i ,j): In other words, the IO prefers one extended prospect to another if and only if the person in the Wrst extended prospect experiences well-being at least as high as the person in the second extended prospect. I call this ‘neutrality’ because it asserts that the IO brings no external considerations to bear concerning what person he or she would like to become: he or she only follows the dictates of the interpersonally comparable attribute called welfare or well-being, ignoring all other traits these individuals have (such as sex, race, nationality, religious preference, or political views). Thus, the data available to the IO are now {u1 , . . . , uN , W ,  }. It turns out that the two principles of Acceptance and Neutrality enable us completely to solve the problem of the IO’s vNM preferences. To describe the result, I must Wrst introduce another concept. Let {Wa1 , Wa2 , . . . , WaN } be an equal-welfare distribution of wealth: a distribution such that for every pair i,j (Wai , i)  (Waj , j): 7 Many people are confused about this claim. The vNM preferences are ordinal preferences on lotteries. There happens to be a very useful cardinal representation of those preferences that allows us to calculate the utility of a lottery in a very simple way (by factoring out the probabilities). But the preferences are purely ordinal and non-comparable across persons. See Roemer (1996: ch. 4) for further clariWcation.

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Let there be two more equal-welfare distributions of wealth denoted {Wbi }and{Wci }, and suppose that these three distributions of wealth represent three welfare levels in increasing order of welfare. It follows that for each i, Wai < Wbi < Wci , because we assume that welfare is strictly increasing in wealth. We again invoke the vNM theorem, which tells us that for each person i there is a unique probability pi such that: ui (Wbi ) ¼ pi ui (Wai ) þ (1  pi )ui (Wci ):

(2:4)

In other words, i is indiVerent between receiving the middle wealth level for sure and facing a lottery where the prizes are the lowest and highest wealth levels, with associated probabilities pi and (1  pi ), respectively. A unique such number pi always exists—a property of vNM preferences. In general, of course, the probabilities pi will diVer across individuals. The more risk-averse an individual is, the lower will pi be. I will say that the individuals in the world are risk-isomorphic if, for any choice of the three equal-welfare distributions, the numbers {pi ji ¼ 1, 2, . . . , N } are identical for all i. What this says is that, when viewing lotteries in terms of the welfare they provide to the individual in question, all individuals have identical risk preferences. The experiment, so to say, transforms wealth levels for diVerent persons into the common welfare currency. Risk isomorphism is clearly a singular case, which will rarely if ever hold in ‘real worlds’. We have the following theorem: Theorem 1 (A) If the individuals in the world {u1 , . . . , uN , W ,  } are risk-isomorphic, there is a unique vNM preference order (for the IO) that satisWes the principles of acceptance and neutrality. This order is represented by the vNM utility function on extended prospects: U (W , i) ¼

ui (W )  ui (Wai ) : ui (Wbi )  ui (Wai )

These preferences are independent of the particular choice of {Wai } and {Wbi }. (B) If the individuals are not risk-isomorphic, there is no vNM preference order on extended prospects that satisWes acceptance and neutrality.8 Part B of the theorem is an impossibility theorem. It says that, in what is the usual case (of risk non-isomorphism), the Harsanyi VI, amended by the 8 In my paper, (Roemer 2002), I incorrectly assumed something that implied that all environments were risk-isomorphic, and so I claimed that the principles of neutrality and acceptance always characterized unique vNM preferences for the IO. Fortunately, the examples of that paper are all correct, as they are all examples where risk isomorphism holds.

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principle of neutrality, is an incoherent thought experiment. In the singular case of risk isomorphism, we uniquely determine the preferences of the IO (i.e. we solve for the coeYcients {ai } of equation (2.3)). Theorem 1 is proved in Moreno-Ternero and Roemer (2004); let me here remark upon its implications. Suppose, Wrst, we are in the situation of part (A). Because under risk isomorphism the IO’s preferences are determined, we can compute the distribution of wealth he would recommend in any riskisomorphic world. Let us take a very simple such world. There are two individuals, Andrea and Bob. They are each risk-neutral. We may therefore take them to have the same linear vNM utility function, namely: uA (W ) ¼ uB (W ) ¼ W : Let us suppose that the interpersonal welfare order is given by (W,Andrea)(2W, Bob); that is, Bob always needs twice the wealth of Andrea to achieve the same welfare level as hers. It is easy to see that this environment is risk-isomorphic. (I leave this to the reader to check.) Now let us see what the IO recommends under the preferences of part A of the theorem. Suppose W ¼ 1, so a distribution of wealth is represented by (W , 1  W ) where the Wrst component goes to Andrea and the second to Bob. The IO must choose W. We know that U (W , A) ¼ U (2W , B) by the principle of neutrality. Now the IO must choose W to 1 1 maximize U (W , A) þ U (1  W , B): 2 2 By the formula just given we can write this as: 1 1 1W , A): max U (W , A) þ U ( 2 2 2 But by the principle of acceptance, this is equivalent to maximizing: 1 1 (1  W ) 1 W Wþ ¼ þ : 2 2 2 4 4

(2:5)

Maximizing this quantity is achieved at W ¼ 1: the IO would give all the wealth to Andrea! In this environment, I consider Bob to be disabled with respect to Andrea: he requires more wealth than she does to receive any given level of welfare. Thus, the Harsanyi VI gives all the wealth to the able person (in this case). The general result is: If all individuals are risk-neutral, and they can be ordered with respect to ‘ability’, the talent of converting wealth into welfare, then the Harsanyi VI assigns all the wealth to the most able individual(s).

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Of course, the interpretation matters here. A situation where Bob requires twice Andrea’s wealth to reach her level of welfare could also be due to Bob’s having expensive tastes for which we hold him responsible, and in that case, we might not be so disturbed by the conclusion. But I insist that this is not the problem I am here studying. I am discussing worlds where people diVer in their ability to convert wealth into well-being, through no fault of their own. I say that priority requires that disabled individuals receive at least as much wealth as able ones. That is my deWnition of priority for these worlds. In the environments under discussion, we have a clear way of deciding what ‘being worse oV’ means: it means ‘requiring more wealth than another to reach any given welfare level’. I formally deWne: DeWnition 1. An individual j is disabled with respect to an individual i when it is always the case that (W i , i)  (W j , j) ) W j $W i and there is some value of W i for which the above inequality is strict. DeWnition 2. A distribution rule is prioritarian if and only if whenever i is disabled with respect to j, it assigns to i at least as much wealth as to j. Prioritarianism, so deWned, is limited: it does not require that we raise the minimum level of welfare to the highest possible level—only that disabled persons receive at least as much of the resource as able ones. (Notice that there is a sense in which prioritarianism, as deWned here, is diVerent from its deWnition in a welfarist framework. In the latter, one often thinks of priority as meaning the following: that if person A has much higher welfare than person B, then a transfer of some amount of resource from A to B is ethically mandated. There is no reference to the underlying characteristics of A and B—one knows only how they are doing at a particular allocation or social state. Here, however, I have an ex ante characterization of ability and disability, and priority is stated as a requirement regarding that ex ante feature of persons. In the general social-choice framework, this move is unavailable, as we have no way of ascribing ‘ability’, or indeed characteristics of any kind, to persons. [Indeed, in the general framework, we do not even have ‘resources’, only abstract social alternatives.]) What happens if we alter the risk preferences in the above example so that the individuals are risk-averse? For small degrees of risk aversion, it continues to be the case that the Harsanyi-cum-Roemer veil delivers more wealth to the able agent, although it will deliver some wealth to both agents. Only for large degrees of risk aversion does the VI assign more wealth to the disabled person. Now consider part B of the theorem. We have no vNM preferences for the IO in the case of risk non-isomorphism. However, I propose the following procedure. Denote the individuals by 1,2, . . . ,N. The IO Wrst takes on the

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vNM preferences of any person i, and chooses the wealth distribution i would choose, if he or she always converts wealth given to other people into the welfare-equivalent wealth for himself or herself (i). We deWne this precisely as follows. For any pair (W j , j) and any agent i deWne i W j by (W j , j)  (i W j , i). That is, i W j is the wealth that i would have to have to reach the same level of welfare as j achieves with wealth W j . We assume that it is always possible to Wnd such a wealth level—that is, welfares can always be equalized across persons, were suYcient wealth available.9 If the distribution of wealth being contemplated is (W 1 , W 2 , . . . , W N ), the IO, placing herself in i’s shoes, would evaluate the birth lottery as having expected utility N X 1 i i j u ( W ): N j¼1

(2:6)

Thus the IO, using i’s risk preferences, asks how he or she would feel as any person j, given the wealth j gets in the distribution: to do so, the IO must convert j’s wealth to the welfare-equivalent wealth for i, since the IO is evaluating everything from i’s perspective. Harsanyi used the phrase extended sympathy for the compassion the IO feels as he or she contemplates being diVerent people. But, since Harsanyi did not deal with interpersonal comparisons of welfare, his extended sympathy was not truly extended. The expression (2.6) is one of truly extended sympathy. The IO, when stepping into the shoes of person i, imagines how i would feel if he or she were to be realized as any person j with a given wealth level W j . He or she would experience j’s wealth level W j , which is equivalent to i’s having the wealth level i W j . Call the distribution of wealth that maximizes expression (2.6) vi . Sequentially, the IO now performs this computation, taking on every person’s viewpoint. This produces N wealth distributions v1 , P . . . , vN . I propose 1 that the IO take the average of these distributions, N vi , as his or her i recommended distribution. This procedure can be performed for any environment, risk-isomorphic or not. It is, furthermore, a generalization of the procedure of part (A) of theorem 1: that is, if the environment is risk-isomorphic, the procedure just described coincides in its recommendation with maximizing the IO’s vNM utility function. This follows from the fact that in the case of risk isomorphism, the N wealth distributions vi are all identical, and each is the distribution recommended by maximizing the utility function in part (A) of the theorem. 9 So I exclude from consideration hard cases, where the upper bounds of welfare achievable by persons diVer.

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It therefore follows that the general procedure is also anti-prioritarian, since in the special case of risk isomorphism, we know it is anti-prioritarian. I have now provided the argument that the VI, properly completed from Harsanyi’s important Wrst step, is anti-prioritarian, in the sense that it fails in general to assign at least as much wealth to disabled agents as to able ones. Although Harsanyi’s assumption that the IO must possess vNM preferences is too strong—in the sense that no such preferences exist that satisfy the very reasonable axioms of acceptance and neutrality except in a singular case—we have produced an attractive proposal for what the IO should do in the general case, and it also is anti-prioritarian.10

THE RAWL S AND DWORKIN VEILS OF IGNORANCE Rawls deprives the souls (whom he calls ‘parties’) in the original position of knowledge of the preferences of those persons they represent, and even of how preferences are distributed. I believe there is no way of solving the problem for the Rawlsian soul (for, as many have remarked, there really is only one soul). That soul faces virtually complete ignorance. Certainly Rawls provides no coherent argument. I do not accept Rawls’s argument for why souls behind the veil should not know the distribution of preferences. Rawls wishes the parties to think only in terms of primary goods: but if Rawls wants justice to concern itself with primary goods, and if he wants a VI to produce justice, then a concern with primary goods is what souls behind his veil should end up with, when they are concerned with their own welfare maximization. Presumably, the argument should be that bargaining behind the veil, among persons with disparate preferences, will produce an agreement to focus upon primary goods. Rawls stacks the deck for his view, however, by depriving souls of knowledge of preferences. If preferences are morally arbitrary, souls should at least know the distribution of preferences. This Rawls denies them because, I believe, he fears that a soul would be partial to a preference order that has a high frequency. But this, I think, is an incorrect invocation of impartiality. First, I have pointed out that 10 One might try to defend Harsanyi’s VI and prioritarianism by saying that, when such monumental issues are at stake as one’s wealth for a lifetime, rational individuals would be highly risk-averse, thus excluding from the domain of possible worlds proWles of risk preferences that generate the conXict with priority. I am skeptical. Real people frequently take life-threatening risks, which indicates that they do not have excessively high degrees of risk aversion. It is unappealing to say that the only rational persons are ones who are extremely risk-averse.

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there is no inconsistency in souls being partial and the VI being an impartial allocation rule. Second, there is an automatic mechanism that prevents a decision-maker from giving too much wealth to those with preference orders (or utility functions) that appear with a high frequency: horizontal equity requires that he or she give the same amount to all people with that utility function, and since there are many such people, by hypothesis, he or she cannot give too much wealth to each of them. I believe this suYces to control the decision-maker who might be ‘partial’ to those with common preferences. On the other hand, if preferences are not morally arbitrary (if, for instance, persons are to be held responsible for their plans of life, as Rawls sometimes says), the souls behind the veil should know those preferences. The original position is only meant to shield souls from knowledge of attributes that are morally arbitrary. Dworkin (1981), in contrast to Rawls, has outlined a conception of the VI that is coherent and can be modelled formally. Here, I present a fairly simple two-person version. Unfortunately, the concept is inherently subtle, as it is an application of the theory of general equilibrium with markets for contingent claims—hence, the adverb ‘fairly’ in the previous sentence. Suppose we again have our two people, Andrea and Bob, and Bob is disabled with respect to Andrea—to wit, he requires 2W in wealth to reach the same welfare level as Andrea reaches with W.11 To make the example interesting, I will now suppose that Andrea and Bob have the same risk preferences over wealth—their vNM utility function is given by: pffiffiffiffiffi u(W ) ¼ W : Thus Andrea and Bob are risk-averse, because their vNM utility function is strictly concave. Behind the VI, there are two souls—call them a and b—who represent Andrea and Bob, respectively. The talent, which is the innate Dworkinian resource, is the ability to convert wealth into welfare. Each soul knows the welfare-producing capacities of Andrea and Bob, and each believes that it will become Andrea or Bob with equal probability. (By ‘becoming Andrea’ I mean ‘having the talent of Andrea’.) Thus there are two states of the world, from the viewpoint behind the veil, as follows: State 1 2

a becomes: Andrea Bob

b becomes: Bob Andrea

11 I thus continue to assume interpersonal comparability of welfare, which Dworkin eschews. I will comment upon this below.

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In state 1, soul a becomes Andrea and soul b becomes Bob; in state 2, the assignments of souls to persons are the other way around. We know that state 1 will occur, but the souls behind the veil assign a probability of one-half to each state’s occurring. We assume that, in the real world, Andrea has an endowment W A of wealth and Bob has an endowment of W B . Behind the veil, the souls purchase insurance against bad luck in the birth lottery. Bad luck, of course, means becoming Bob, who is disabled with respect to Andrea. This is modelled as follows. We assume (after Dworkin) that the souls have equal purchasing power for insurance. It does not matter how much purchasing power they each have: we shall, cleverly, say each has zero. This means that the only way to purchase insurance for indemnity in one state is to sell insurance for the other’s indemnity in the other state. We model the insurance market as follows. There are two commodities: the Wrst is a contract that will deliver $1 to the holder should state 1 occur, and the second is a contract that will deliver $1 to the holder should state 2 occur. Let us denote the prices (behind the veil) for these two commodities by p1 and p2 . Note that these commodities are purchased behind the VI, using the currency that exists behind the veil (clamshells, to follow Dworkin), not worldly money. Denote by x 1a and x 2a the amount of commodity 1 and commodity 2, respectively, that soul a purchases. If x is positive, it means he or she purchases contracts that will deliver to him or her x dollars if the state of the subscript occurs; if x is negative, it means he or she will deliver x dollars to someone else should that state occur. The budget constraint for soul a is: p1 x 1a þ p 2 x 2a ¼ 0 which means that the amount of commodity 1 he or she can purchase must cost exactly the income he or she generates by selling commodity 2 (or, the other way around). This constraint derives from the fact that his or her endowment of ‘clamshells’ behind the veil is zero. If the soul faces prices (p1 ,p2 ) his or her optimization problem is as follows: sffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffi p ffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffi 1 1 W B þ x 2b choose x 1a and x 2a to maximize W A þ x1a þ (3:1) 2 2 2 subject to p1 x 1a þ p2 x 2a ¼ 0: The objective the soul maximizes is his or her expected utility. The expression under the Wrst radical is clear: this is what his or her wealth will be if he or she becomes Andrea (state 1). The expression under the second radical is

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trickier. In state 2, the soul becomes Bob; the wealth he or she would then have is W B þ x2a . However, he or she must evaluate this wealth from Andrea’s viewpoint—and by hypothesis, the welfare this amount of wealth generates for Bob is exactly the welfare that one-half this amount generates for Andrea. So truly extended sympathy gives us the objective in formula (3.1). In like manner, the optimization problem for soul b is qffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffi qffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffiffi 1 1 b b b B W þ x1 þ 2(W A þ x 2b ) to choose (x1 ,x2 ) to maximize 2 2

subject to p1 x1b þ p2 x2b ¼ 0:

(3:2)

Note that, if soul b becomes Andrea, it must evaluate his or her wealth in terms of the welfare-equivalent wealth for Bob. An equilibrium in the insurance market consists in: 1. a pair of prices p1 and p2 ; and 2. commodity demands (x1a ,x2a ,x1b ,x2b ) such that the markets for both commodities clear, that is: x1a þ x1b ¼ 0 ¼ x2a þ x2b . There is a unique equilibrium12 in this market. It is (I spare the reader the calculation that veriWes this): p1 ¼ p2 ¼ 1 2W B  W A , 3 W A  2W B , x1b ¼ 3 x1a ¼

x2a ¼ x1a x2b ¼ x1b :

As I said, we know that, in the event, state 1 occurs; this means that the Wnal wealth levels (under the Dworkinian tax scheme) must be: 2 W A,Wnal ¼ W A þ x1a ¼ (W A þ W B ) 3 1 b B ,Wnal B ¼ W þ x 1 ¼ (W A þ W B ): W 3 Thus, disabled Bob ends up with one-third of the total wealth, and able Andrea ends up with two-thirds of the total wealth!

12 To be precise, the demands and supplies are uniquely determined. The prices can be any pair of equal positive numbers.

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In other words, the Dworkinian insurance market is in general antiprioritarian. It does not (in general) assign at least as much wealth to the disabled person as to the able person. The reader will notice that the souls make interpersonal welfare comparisons in the above formulation. This appears to contradict Dworkin’s assertion that equality of resources is a desirable ethic, inter alia, because interpersonal welfare comparisons are impossible to perform. To this, I have two responses. First, even if Dworkin would disown the model I have presented, it is, independently, and for many of the reasons Dworkin gives, an attractive model of the VI. Second, I have formulated the problem as one in which the ‘talent’ that is diVerentially distributed in the society in question is a talent for converting wealth into welfare. In other versions of the model, I have represented the diVerence between Andrea and Bob as one of a diVerential resource endowment—which I have often called the resource endorphins (see, e.g., Roemer 2002). In that version, we may interpret welfare as non-comparable. The present version, however, has the virtue of being directly comparable to the Harsanyi problem. Dworkin has never responded in print to this critique of his insurance mechanism, although he has, in conversation, said that, were there a case in which the insurance mechanism produced this kind of outcome—transferring resources from the disabled to the able—he would not apply it. It is not completely clear how that statement can be made precise. One way could be as follows. Suppose there is, for each soul behind the veil, a clear speciWcation of the states in which he or she becomes disabled. In the simple problem above, that speciWcation is ‘state 1 for soul b and state 2 for soul a’. In general, people have bundles of attributes, and it may not be well deWned exactly when a person is disabled. If, however, this could be done, we could restrict souls to purchasing indemnity only for those states in which they materialize as disabled. In other words, we would forbid soul a from purchasing contracts to deliver dollars to him or her in state 1 and forbid soul b from purchasing insurance against state 2’s occurring. The upshot in the above example is that there would be no insurance contracted for. This does not solve the problem of compensating the disabled Bob, which, I presume, Dworkin would like to do, but at least it prevents his discompensation, as the Dworkin mechanism, as here interpreted, implements. It is not, here, my task to present an alternative allocation rule to Dworkin’s that implements his vision: Fleurbaey (2002) has a proposal along these lines. My concern, here, is only to observe that both the Harsanyi and Dworkin VIs fail to be prioritarian. This means that, on a reasonable domain of possible worlds, they do not always deliver at least as much wealth to disabled agents as to able ones.

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SOLIDARITY AND PRIORITY: A N A XIOMATIC APPROACH I proceed to describe how I inject solidarity into the argument, in hopes of preventing the pathology that I have described above. I begin with a set of individuals, I, which is large. There is an order  on extended prospects (W,i) so that it makes sense to say ‘Andrea has higher welfare with wealth $1,000 than Bob has with $3,000’. Thus disability can be deWned. I assume that of any pair of agents (i,j), either i and j are identical or one is disabled with respect to the other. To be precise, we are given the interpersonal welfare ordering deWned in the second section on extended prospects. Using this ordering, it is easy to deWne a class of interpersonally comparable utility functions, as follows. Let us Wx an arbitrary individual, call him i0 . We deWne this agent’s utility function as equal to his wealth, whatever it may be, that is: ui0 (W ) ¼ W : We next deWne the utility function for any agent j. For any W there is a unique wealth W  such that: (W ,j)  (W  ,i0 ): We deWne uj (W ) ¼ W  . Thus, uj (W ) ¼ ui0 (W  ), by deWnition. It is easy to see that this procedure deWnes utility functions for every individual that measure utility in an interpersonally comparable way; that is to say: uj (W )$uk (W 0 ) , (W ,j)  (W 0 ,k): There is, however, no cardinal meaning to these utility functions: we could have chosen an arbitrary, increasing utility function for i0 and that would have generated a diVerent family of utility functions for the whole population that would do just as well. We can now state the assumption on our population: Domain assumption DE . There is an inWnite population, I, of individuals whose welfares are interpersonally comparable. For any two individuals i and j either for allW , ui (W )#uj (W ) or for allW , uj (W )#ui (W ): The fundamental mathematical object is the ordered pair (I,  ). The domain assumption asserts a condition on that pair. It would be desirable to eliminate the assumption that every pair of persons is ordered by ability. However, doing so considerably complicates the result

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that I will report, and so, for the presentation here, I maintain the assumption. (But see Moreno-Ternero and Roemer (2004) for the full story, where the domain assumption is weakened to allow for pairs of individuals who are incomparable with respect to ‘ability’.) I now deWne: the set of environments consists of objects e ¼ {n,(i,j,k, . . . ),W }. This is to be read: the environment has n people, they are the individuals i,j,k . . . taken from the set I in the ordered pair (I,  ), and the wealth to be distributed among them is W. We allow n to be any positive integer, the collection of individuals to be any collection of n persons from I, and W to be any positive real number. Denote the class of such environments by E. These are our ‘possible worlds’. Impartiality has already in large part been modelled by the speciWcation of the information available in an environment. An allocation rule is partial if it uses information that is morally irrelevant (such as a person having blue eyes, or being John’s brother). The object e contains no information about the races or religions or ethnicities of persons. Thus much information that most of us would deem morally irrelevant has been excluded from discussion a priori. The only information e does contain is of the capacities that individuals have for transforming wealth into welfare, and the amount of wealth available. In particular, e does not contain information of the risk preferences of the individuals. So it is impossible, given the information therein, to carry out either the Harsanyi or the Dworkin VI experiment. Perhaps it would be desirable to include such information in the description of the environment—for not to do so excludes by Wat those allocation rules. One view is that risk preferences are irrelevant for the distribution problem, and so there is no need to include them in the description of environments. (For instance, Fleurbaey (2002), in his discussion of the Dworkin insurance mechanism, writes: ‘It makes the transfers between individuals depend on a hypothetical, and morally irrelevant, risk aversion.’) I do not agree with that view in general. However, I do think it is arguable that for the problem at hand, which is to distribute an amount of wealth that nobody has produced, but has appeared as manna from heaven, we need not consider risk preferences. After all, risk preferences are salient when individuals must make decisions that will impact upon their future welfare—and, I would say, only when that condition holds. In the very simple worlds under present discussion, there are no such decisions, and so arguably, we may exclude information on risk preferences. We are, in other words, dealing here with very simple problems: how to distribute wealth justly among persons, where the wealth is a natural resource (in the sense that it has not been produced by the labour of individuals), and the only issue is the diVerential capacities of individuals to transform that resource into welfare. This does not preclude our having to include risk

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preferences in the description of environments when we attempt to generalize our theory of justice to worlds where production and uncertainty exist. We deWne an allocation rule as a mapping F that associates to each environment e in E an allocation of its wealth W to its population. Domain assumption (D). For an allocation rule F to be admissible, it must be deWned on the domain D E . We denote by F (e) the vector of wealth levels that F assigns to the individuals in e, and by F i (e) the wealth that F assigns to the ith individual listed in e. Our procedure will be the axiomatic characterization of allocation rules. We will postulate axioms on the behaviour of F that describe what it means for F to be impartial, solidaristic, and prioritarian. We will study what allocation rules satisfy these axioms. The axiom D is one of impartiality, as I discussed earlier. The allocation rule can make no use of information about persons that is not described in the environments in D E . A second axiom of impartiality is: Horizontal equity (HE). Let e be any environment and let i and j be members of e who have identical utility functions. Then F i (e) ¼ F j (e). In other words, individuals who, as far as the available information tells us, are identical, must receive an equal amount of wealth. This implements impartiality, because it tells us that nothing but a person’s welfare-producing capacity matters for the distribution of wealth. Of course this would not be true were uncertainty, education, and production to exist, but in our environments, they do not. HE is a weak version of the familiar anonymity axiom, which is usually justiWed as an axiom of impartiality. It turns out we will not need the full strength of anonymity. We formally introduce priority: Priority (P).13 An allocation rule F is prioritarian if, whenever e is an environment and i and j are in e and j is disabled with respect to i, then F j (e)$F i (e). We next introduce the concept of solidarity. How should it be formalized? Here, there is a literature to consult. A number of writers (Roemer 1986; Thomson and Lensberg 1989; Sprumont 1996; Fleurbaey and Maniquet 1999; Moulin 2003) have modelled solidarity; its relationship to egalitarianism appears frequently in this literature (see Fleurbaey and Maniquet, in press, for a general survey). The basic idea is as follows. Suppose there is a bad shock to the world we live in: either there is a loss of our natural resource, or someone becomes ill, or penniless immigrants arrive; what do we do? Solidarity requires 13 Sen (1973) called this the weak equity axiom. He wrote before the term ‘priority’ had been formulated in distributive-justice theory.

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that everyone chip in to deal with the bad shock—or, more generally, that everyone be aVected in the same way by the shock. Here are two ways of formulating this solidaristic ethic on our domain: Strong Solidarity (SSOL). Let e ¼ (n,I1 ,W )ande 0 ¼ (n þ m,I1 [ I2 ,W 0 ) be two environments, where the set of individuals in the second environment (weakly) includes the set in the Wrst. (The set I2 may be empty.) Then it is the case that for all i in I1 F i (e) > 0 ) F i (e 0 ) < F i (e) or for all i in I1 F i (e 0 ) > F i (e) or for all i in I1 F i (e) ¼ F i (e 0 ): Here, in e 0 , ‘new persons’ have arrived on the scene—those in the set I2 —and perhaps they bring wealth with them, perhaps wealth does not change, or perhaps wealth is destroyed. The axiom states that either everyone in the initial society chips in to contribute to the support of the immigrants, or everyone beneWts from the wealth they bring, or there is no change in what the original settlers receive. In other words, it is not the case that some of the original group have an increase in welfare and some a decrease, after the immigrants arrive. The special case where I2 is empty and W 0 > W is of interest. Since all the wealth must be used up, we know that at least one agent receives more wealth in e 0 than in e. Therefore, SSOL implies that every agent must receive more wealth in e 0 than in e. This is what I called resource monotonicity in my earlier work (Roemer 1986, 1996). It is important to note that solidarity, as formulated in SSOL, is not necessarily an ‘egalitarian’ axiom. For instance, it does not require the original population to contribute to the maintenance of penniless immigrants: they could give the new folks nothing. And if the immigrants are not penniless, but bring wealth with them, it does not preclude the natives’ grabbing that wealth and distributing it among themselves (as long as each of the natives receives something). So it is really a statement of solidarity among natives, not solidarity across the board. Agent Monotonicity (AM). Let two environments be given by: e 1 ¼ {n,J [ {i},W } and e 2 ¼ {n,J [ {k},W } where k is disabled with respect to i. Then either for all j in J, F j (e 1 ) ¼ F j (e 2 ) or F j (e 2 ) < F j (e 1 ) if F j (e 1 ) > 0:

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Here, we can think of the episode as one where agent i in the Wrst environment becomes ill; his capacity for transforming wealth into welfare has deteriorated (and so he has become the new agent k). The axiom says: either nothing changes in the resource allocation, or everyone in the rest of society (the individuals in J) chips in to increase the resource allocated to the sick person. (Of course, we cannot require someone who is already receiving zero to chip in.) We next propose an axiom of limited priority. There are, in fact, two sentiments uttered in the discussion of prioritarianism by those who advocate it: Wrst, that we owe priority to the worse oV, and second, that we do not owe them too much. As I said earlier, society (in this view) is not obligated to increase the well-being of the worse oV to the extent that ‘excessive’ contributions from others are required. The motivation of the formulation of prioritarianism was to propose an ethical view that, although not as radical as maximin, did redistribute at least to some extent from the better to the worse oV. We capture this ‘limiting’ sentiment with the following axiom: Limited Priority (LP). Let j be disabled with respect to i in an environment e. Then uj (F j (e))  ui (F i (e)): In other words, the allocation rule should never give the disabled agent so much wealth that he or she has greater welfare than an agent who is more able than he or she is.14 We next deWne the concept of a general index of wealth and welfare. Let w be any weakly monotone increasing function that associates, continuously, pairs of non-negative real numbers with non-negative real numbers, and is strictly increasing along diagonals. Mathematically:15 w: R2þ ! Rþ and(x,y) > (w,z) ) w(x,y) > w(w,z): Examples are w(x,y) ¼ x 2 þ y 2 , w(x,y) ¼ x þ y, w(x,y) ¼ y, or w(x,y) ¼ p ffiffiffipffiffiffi x y . Denote the class of such functions by F. Clearly there are an inWnite number of such functions. Let us Wx such a function. We can view this function as an index of wealth and welfare, by substituting for x the wealth value allocated to a person, and for y the welfare he receives from that wealth. For any environment and any allocation rule F, we can compute the vector of w-indices enjoyed by the members of e 14 The axioms of P and LP are together equivalent on the domain DE to the following axiom: New Priority: No person should dominate another in both resources and welfare. See Moreno-Ternero and Roemer (2004) for further discussion. 15 Convention on vector orderings: (x,y) > (w,z) means x > w and y > z.

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under the action of F: that is, the vector {w[F 1 (e),u1 (F 1 (e) )],w [F 2 (e),u2 (F 2 (e) )], . . . ,w[F n (e),un (F n (e) )]}. Now for any such function w we can deWne an allocation rule as follows: .

the rule Lw acting on e assigns that distribution of the total wealth in e that equalizes the w-indices of all its members.

Call this the w-egalitarian index. It can be shown that, on our domain E, for any e, and for any w, such an allocation is uniquely deWned. It is not hard to show that: .

the Lw rules obey the axioms D, HE, C, SSOL, AM, P, and LP.

What is more remarkable is the following converse: Theorem 2 An allocation rule F satisWes the axioms D, HE, SSOL, AM, and LP if and only if it is an Lw rule, for some w 2 F. In other words, a rule that satisWes impartiality (D, HE), solidarity (SSOL, AM), and limited priority (LP) must be a general index of wealth and welfare, and hence must be prioritarian, because all such indices (Lw rules) satisfy P. Theorem 2 thus deduces prioritarianism from axioms of impartiality and solidarity, plus limited prioritarianism, but it does much more than that: it characterizes all allocation rules satisfying those axioms as ones that are egalitarian with respect to some index of wealth and welfare. It is useful to discuss two particular Lw rules: 1. Let w(x,y) ¼ x. Now the index is just a person’s wealth. The associated Lw rule equalizes wealth among all individuals. This is, then, the equal-resource rule, which we denote by F ER. 2. Let w(x,y) ¼ y. Now the index is just a person’s welfare. The associated Lw rule, in like manner, equalizes utility among all individuals. This is, then, the equal-welfare rule, which we denote by F EW . In a sense made clear by the next result, these two Lw rules are extreme in the class of rules satisfying the axioms of theorem 2. Theorem 3 (A) The equal-resource rule is the best rule, among all those satisfying the axioms of theorem 2, for the most able agent in the environment, and the equalwelfare rule is the worst rule for that agent. That is, if i is the most able individual in e, then for all rules F satisfying the axioms: F ER,i (e)$F i (e)$F EW ,i (e):

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(B) The equal-welfare rule is the best rule, among all those satisfying the axioms of theorem 2, for the most disabled agent in an environment, and the equal-resource rule is the worst rule for that agent. If j is the most disabled agent in e, then for all rules F satisfying the axioms: F EW ,j (e)$F j (e)$F ER,j (e): Consequently, these two classical rules are acceptable according to our axioms, and moreover, they are important polar cases in the class of acceptable rules. Those most concerned with the disabled will advocate equal welfare, and those most concerned with the most able will advocate equal wealth. It is worth remarking that, despite the caveats I provided above, to the eVect that SSOL only guaranteed solidarity ‘among the natives’, we see that, in conjunction with the other axioms, we indeed have ‘solidarity among all residents’. That is, if penniless immigrants come into a society, any w-egalitarian rule will, indeed, take wealth away from all the natives and give it to the immigrants, so that the w indices of all are equalized. We get ‘solidarity across the board’ for free. Note that theorems 2 and 3 are instances of non-welfarist ethics. Both welfarist and resourcist intuitions have motivated our axioms. Indeed, our concept of priority is resourcist: disabled agents should get at least as much resource as able agents. What motivates such an axiom? A view that, somehow, it is relevant to compare amounts of resources going to two persons, with equality of resource allocation having a special normative signiWcance. A welfarist ethic states everything in terms of utility or welfare: it can never give special normative signiWcance to an equal division of resources. But here, we evidently have an intuition about what society owes people, in terms of resources. We characterize a set of allocation rules that make use of both resource and welfare information. Indeed the set of rules characterized in theorem 1 is symmetric with respect to its treatment of wealth and welfare. To be precise, if w p 2ffiffiF, ffi then w 2 F, where w (x,y) ¼ w(y,x). For example, both w(x,y) ¼ x y 3 and pffiffiffi w (x,y) ¼ y x 3 are acceptable indices. We say that the indices w and w are dual to each other. Note that the equal-welfare rule and the equal-resource rule are dual to each other. In this sense, our theory is unbiased in its treatment of welfare and wealth. I remark upon the inclusion of the axiom LP in the premise of theorem 2. It would be interesting to characterize the set of allocation rules that obey all the axioms stated there except LP. This is an open question at this time.

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Indeed, there is a much simpler result concerning the relationship between the axioms: Theorem 4 D, SSOL, AM, and HE imply P. Thus, priority can be deduced from solidarity and impartiality, as we initially set out to do. The proof of theorem 4 is very easy, so the idea there is not deep. Theorem 2, however, requires a substantial argument, and so I have focused upon it. Further discussion of the distinction between solidarity and priority is perhaps in order. I have characterized solidarity as a property of allocation rules that is deWned by comparing the action of a rule on pairs of environments. (Check the deWnitions of SSOL and AM.) Both P and LP compare how diVerent agents fare in a single environment. To this extent solidarity and priority, as here formulated, are qualitatively diVerent concepts. The strategy of comparing how allocation rules behave on diVerent possible worlds, and restricting their behaviour according to such comparisons, is one that has been used productively in axiomatic resource allocation theory of the last twenty-Wve years. (Indeed, we can go back further: Arrow’s impossibility theorem uses this technique.) It is worth remarking that the idea of indices of ‘goods’ has emerged from time to time in the theory of distributive justice. Rawls has discussed creating an index of primary goods. Sen has discussed creating an index of functionings as a measure of capability; indeed, the United Nations Development Programme (UNDP) does use such a Sen-inspired index in measuring human development across countries. Our analysis is particularly simple—there are only two concerns, wealth and welfare—and our axioms require us to equalize an index, with no further restriction, of those two ‘goods’. This suggests a line of research in which one would attempt to increase the number of goods, and attempt to characterize axiomatically equalization of a multidimensional index. A Wnal, and I think important, remark. The approach of the analysis described here is essentially static. The axioms SSOL and AM compare the action of the allocation rule on pairs of environments. But the story we tell to justify these axioms actually relates the members of the pair across time: in one case, as I said, we think of penniless immigrants arriving on the scene, in the other, we think of someone becoming ill. Thus the motivating stories involve a time dimension and a history. If our intuitions (for justifying SSOL and AM) are intrinsically dynamic ones, involving changes that occur in societies, and how their members should respond to them, we should construct a theory of a single society developing dynamically (over time).

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We could then represent the idea of penniless immigrants arriving, for example, in a way more faithful to our intuitions than we do here. We could incorporate history, and develop a theory of path-dependent resource allocation, following prescribed ethical mandates. As far as I know, ‘dynamic axiomatic ethics’ is virgin territory (doctoral students, take note!).

RECIPROCITY AND FRATERNITY The word solidarity does not appear in the indices of Rawls’s Theory of Justice (1971) or Justice as Fairness (2001). Rawls (1971: 105) does use the word, however, in his discussion of fraternity. Reciprocity, however, appears in both volumes and their indices, and one might ask whether reciprocity could be performing the role, for Rawls, that solidarity performs here—that of excluding impartial allocation rules that are nasty to the disabled. Unfortunately, Rawls does not oVer a clear deWnition of reciprocity. He writes: ‘A further point is that the diVerence principle expresses a conception of reciprocity. It is a principle of mutual beneWt’ (ibid. 102). In the paragraph following these sentences, Rawls explains, as follows. Consider two ‘men’, A and B where A is better oV than B under the diVerence principle. B, he writes, beneWts from the diVerence principle because under any other allocation, he would be worse oV. (This is in fact incorrect, unless B is the worst oV person in society.) A beneWts because there is a scheme of social cooperation that makes possible A’s consumption, and there would be no basis for B’s approval of that scheme were he not doing as well as possible. Thus, mutual beneWt is demonstrated, and presumably, what Rawls means by reciprocity. The idea here that A beneWts from the diVerence principle (because implementing it garners social cooperation from B) is, it would seem, not robust, in the sense that B might well assent to many schemes of distribution that were worse for him, depending on his bargaining power. Be that as it may, the Rawlsian principle of reciprocity seems quite distant from solidarity. Serge-Christophe Kolm, however, who has written voluminously on reciprocity, has quite a diVerent conception from Rawls’s. For Kolm (2004), reciprocity involves explicit mutual gifts. This might be closer to solidarity—I will give to you when you are in trouble, and expect that you will return the favour when I have bad luck. Kolm’s concept of reciprocity, then, could be argued to imply at least the solidarity axiom AM, and perhaps the axiom SSOL as well. It is worth saying, however, that Kolm does not develop the idea in this way, but rather takes a game-theoretic approach, asking whether reciprocal

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behaviour is stable in a society of strategic individuals who are, at bottom, self-interested. Kolm views reciprocity as social glue. ‘Life in society can be seen as, Wrst of all, a dense network of reciprocities of various kinds. At least, it would and could not exist otherwise’ (ibid. 11). His task is to explain its role, rather than to connect it to justice. Rawls’s invocation of fraternity is perhaps much closer to my use of solidarity. He writes that the diVerence principle ‘provides an interpretation of the principle of fraternity’, and continues that ‘we have yet to Wnd a principle of justice that matches the underlying idea [of fraternity]’ (1971: 105). But then he says: ‘The diVerence principle, however, does seem to correspond to a natural meaning of fraternity: namely, to the idea of not wanting to have greater advantages unless this is to the beneWt of others who are less well oV.’ Fraternity, so construed, is stronger than our axiom SSOL. It implies SSOL, for if penniless immigrants arrive, fraternity requires us to contribute to their upkeep, one of the options under SSOL. However, SSOL does not imply fraternity, since it permits us to do nothing for penniless immigrants,16 while fraternity, at least in the last sentence quoted, requires us to do quite a lot for them. AM likewise does not imply fraternity, but fraternity does not imply AM either. Fraternity, in the Rawlsian formulation, is a much more egalitarian assumption than our solidarity axioms—and hence our theorem 2, with its egalitarian content, is all the more interesting. Perhaps an axiom of fraternity, appended to the axioms in theorem 2, would restrict us to a small class of indices—perhaps to the equal-welfare rule.

ON THE MODELLING P ROBLE M Harsanyi’s environments are of the form {v 1 ,v 2 , . . . ,v n ,W } where the functions v i represent vNM preferences of individuals over wealth lotteries. I argued that Harsanyi’s problem is unsolvable with only this information, and appended interpersonal welfare information to his environments: thus {v 1 , . . . ,v n ,u1 , . . . ,un ,W } where the proWle u provides interpersonal welfare comparisons. I used similar environments to model Dworkin’s VI. To be precise, the information in the example I worked out was of the form {(v 1 ,u1 ,W 1 ), 16 Indeed, SSOL permits us to take the wealth of incoming immigrants and distribute it among ourselves!

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. . . ,(v n ,un ,W n )}: thus, each individual is equipped with vNM preferences over wealth lotteries, an interpersonally comparable utility function on wealth, and a private wealth endowment. Then, in the third section, I passed to consideration of environments of the form {u1 , . . . ,un ,W }, which contain only information permitting interpersonal welfare comparisons, and nothing about risk preferences. On these environments, I oVered a characterization theorem. Would it be desirable to oVer a characterization theorem involving the more complex environments {v 1 , . . . ,v n ,u1 , . . . ,un ,W }? Working axiomatically on such environments is diYcult, which (to paraphrase for those who dislike mathematics) is only a way of saying that rigorous arguments that take into account all this information, and attempt to characterize distributive justice, are hard to provide. (The reason is that, with all the information provided in these environments, there are zillions of possible allocation rules, and so it becomes harder to characterize a small class of them with a small set of axioms.) But working on such a class is still quite inadequate. For, as I wrote earlier, the reason that risk preferences are morally salient is because, in reality, persons must make risky decisions whose consequences will aVect their welfare (or the outcome of their life plans). There is no scope, however, for this kind of decision in worlds that are described merely by the information in {v 1 , . . . ,v n ,u1 , . . . ,un ,W }. The resource endowment is already there— the only problem is how to distribute it. What we need, I think, for risk preferences to be salient, is a representation of worlds in which the wealth is not already there—it must be created by people who make decisions under uncertainty about how to pursue their lives. These people come from diVerent social backgrounds, make choices about education and employment inXuenced by their backgrounds, talents, and experiences, and reap consequent rewards and suVerings. These choices must be represented in the formal model for the problem of distributive justice to be attacked in all its proper complexity. Thus, it is superXuous to include risk preferences in a model where only the distribution of an existing natural resource is at issue: we are mixing levels of abstraction in an unappealing way. Models in which the amount of wealth to be distributed exists prior to social activity must be viewed as vast simpliWcations, which may give us some intuition about where we should be going. But perhaps they will give us the wrong intuitions—we will not know until we have constructed more highly articulated models, and can see whether the results from the simpler approach carry over in some way. A prudent approach would be to construct a sequence of nested models, introducing at each stage another element of realism, and making use of what is known about what comprises justice at the earlier levels, at each successive stage.

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With regard, then, to the moral salience of preferences for risk: I believe that they are not salient in the environments with which theorem 2 is concerned, because risk only becomes morally relevant for real-world ethics when wealth must be produced. Working on a domain where education, production, diVerential social backgrounds, uncertainty and risk preferences, and interpersonal welfare comparisons are all represented is an ultimate goal. What priority and solidarity require in such worlds is itself an interesting and non-trivial question, not to speak of characterizing allocation rules that display those properties. Thus, the present chapter is only an introduction to the topic.

R E C A P I TU L AT IO N To review, I have been concerned with the following syllogism: A. Justice requires impartiality. B. Impartiality, as far as justice is concerned, is properly modelled by VI thought experiments. C. VI thought experiments in general recommend anti-prioritarian allocations. Therefore, D. Justice is not prioritarian. I reject D. A has a long intellectual history, and I do not reject it. C is, so far as I can tell, a fact. Those who reject D can avail themselves of at least the following possible strategies: 1. To construct a model of the VI that does not conXict with prioritarianism, thus negating C. I have not shown that this cannot be done. My approach has been to formalize two of the best models of the VI oVered in the last half century,17 and to show they are anti-prioritarian. But this is not a proof that C is true. 2. To reWne the deWnition of impartiality to exclude the VI. Perhaps this can be done. I do not see how to do it. I take this to be the strategy of Barry— how else could he claim that justice is (or as) impartiality, and also believe that justice is prioritarian or more? Perhaps this is also Scanlon’s strategy (1998): I leave this for others to judge. 17 I have not studied Binmore’s model (1994) of the VI.

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3. To admit that a second principle (after impartiality) is required to characterize justice. I have chosen solidarity—de gustibus non disputandum est. One might also proWtably use fraternity or reciprocity. Strategy 3 appears to succeed, at least in very simple environments, although I do not claim it is the uniquely successful strategy. Indeed, we get something more:18 solidarity and impartiality imply a kind of egalitarianism, where the index of wealth and welfare that is equalized according to justice is not determined without further assumptions. Two classical distribution rules are polar (and even ‘dual’) in the class of index-egalitarian rules—the equal-resource and equal-welfare allocation rules. Qualitatively, I suggest, but do not prove, that principles of distributive justice advocated by left-liberal political philosophers cannot be deduced without supposing leftish axioms. The hope of deducing, from universally appealing axioms, the kind of equality prized by those on the liberal left is, I think, empty. Those of us who wish to deduce that equality or priority is required by justice must, I conjecture, nail our colours to the mast,19 in the sense of axiomatizing quite leftish views. To be speciWc, I have here taken solidarity as an axiom, from which, in conjunction with other axioms, priority is deduced. Solidarity, as I have modelled it, is in conXict with self-interest. A selfinterested person has no reason to donate to a fellow citizen who has become ill. In a dynamic model, however, where persons’ lives extend over many periods, one might hope to show that solidarity is not in conXict with selfinterest: I contribute to your support when you become ill today, and you (or your descendent) return(s) the favour when I (or my descendent) become(s) ill in the future. This is reciprocity, a` la Kolm. Solidarity, therefore, would be a form of insurance. It could therefore be the case, in a dynamic model, when we construct a VI in which worldly persons remain self-interested, that their representative souls adopt solidarity as a principle governing wealth allocation. It could transpire, were that the case, that the conXict between the veil and prioritarianism would vanish, and this chapter would become obsolete— its focus being upon a pathology that only occurs because of the overly simple (static) nature of the model. I do not conjecture, however, that this happy ending will occur. For, were it to occur, it would be because selWsh agents viewed solidaristic trade as a good 18 A lagniappe, to use a favourite word of Jerry Cohen’s. 19 One might construe this belief as conXicting with my enunciated view that the theory of equality of opportunity (Roemer 1998) derives recommendations for signiWcant equality from premises that gain wide assent in advanced democracies. It is beyond my scope here to treat this apparent inconsistency.

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form of insurance. We know, however, from the static case, that self-interested agents do not always insure fully against bad outcomes—that is a lesson of the earlier part of this chapter. I think that, likewise, in a dynamic setting, if agents are not too risk-averse, they will not see solidaristic behaviour as to their advantage. Therefore, I conjecture that, simple as the models of this chapter are, the lessons they produce may well endure in the dynamic setting.

REFERENCES Barry, B. (1995). Justice as Impartiality, Oxford: Clarendon Press. Binmore, K. (1994). Playing Fair, Cambridge, MA: MIT Press. Cohen, G. A. (1992). ‘Incentives, Inequality, and Community,’ in G. Peterson (ed.) The Tanner Lectures on Human Values, Salt Lake City, UT: University of Utah Press. —— (1995). Self-ownership, Freedom, and Equality, New York: Cambridge University Press. Dworkin, R. (1981). ‘What is Equality? Part 2: Equality of Resources,’ Philosophy & Public AVairs, 10. Fleurbaey, M. (2002). ‘Equality of Resources Revisited,’ Ethics, 113. —— and Maniquet, F. (1999). ‘Cooperative Production with Unequal Skills: The Solidarity Approach to Compensation,’ Social Choice and Welfare, 16. —— (in press). ‘Compensation and Responsibility,’ in K. Arrow, K. Suzumura, and A. Sen (eds.), Handbook of Social Choice Theory. Harsanyi, J. (1953). ‘Cardinal Utility In Welfare Economics and the Theory of Risk Taking,’ Journal of Political Economy, 61. Kolm, S.-C. (2004). Reciprocity: its Scope, Rationale, and Consequences. http://aran.univpau.fr/ee/ Moreno-Ternero, J. and Roemer, J. (2004). ‘Impartiality, Solidarity, and Priority In the Theory of Justice’, Cowles Foundation Discussion Papers 1477, Cowles Foundation, Yale University. Moulin, H. (2003). Fair Division and Collective Welfare. Cambridge, MA: MIT Press. ParWt, D. (1997). ‘Equality and Priority,’ Ratio: New Series, 10. Rawls, J. (1971). A Theory of Justice. Cambridge, MA: Harvard University Press. —— (2001). Justice as Fairness: A Restatement. Cambridge, MA: Harvard University Press. Roemer, J. (1986). ‘Equality of Resources Implies Equality of Welfare,’ Quarterly Journal of Economics, 101. —— (1996). Theories of Distributive Justice. Cambridge, MA: Harvard University Press. —— (1998). Equality of Opportunity. Cambridge, MA: Harvard University Press. —— (2002). ‘Egalitarianism Against the Veil of Ignorance,’ Journal of Philosophy, 99.

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Scanlon, T. (1998). What We Owe to Each Other. Cambridge, MA: Harvard University Press. Sen, A. (1973). On Economic Inequality. Oxford: Clarendon Press. Sprumont, Y. (1996). ‘Axiomatizing Ordinal Welfare Egalitarianism When Preferences May Vary,’ Journal of Economic Theory, 68. Temkin, L. S. (1993). Inequality, New York: Oxford University Press. Thomson, W. and Lensberg, T. (1989). Axiomatic Theory of Bargaining with a Variable Number of Agents. New York: Cambridge University Press.

11 Is there a Human Right to Democracy? Joshua Cohen

Is there a human right to democracy? My answer, in brief, is ‘no’. Five interconnected claims will play a role in my argument for this conclusion: 1. Justice requires democracy. 2. Human rights are a proper subset of the rights founded on justice: so a society that fully protects human rights is not ipso facto just. 3. A conception of human rights is part of an ideal of global public reason: a shared basis for political argument that expresses a common reason that adherents of conXicting religious, philosophical, and ethical traditions can reasonably be expected to share. 4. That conception includes an account of membership, and human rights are entitlements that serve to ensure the bases of membership. 5. The democracy that justice requires is associated with a demanding conception of equality, more demanding than the idea of membership associated with human rights. An underlying thought that runs through the argument is that democracy is a demanding political ideal. The thesis that there is a human right to democracy—while it may seem to elevate democracy—threatens to strip away its demanding substance.

THE QUESTION I will start with some comments aimed at clarifying my question about whether democracy is a matter of human right. A variety of things are commonly said on behalf of democracy: I presented earlier versions of this chapter to the Harvard-MIT Joint Seminar on Political Development (JOSPOD), the University of Connecticut Philosophy Department, the Stanford University Political Science Department, and my political philosophy seminar in spring 2004. I am grateful to audiences on all three occasions for their comments and criticisms. I also wish to

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Democracy is good for peace, at least to the extent that countries with democratic political regimes do not Wght each other.1 Democracy, joined with a free press, prevents famines (Sen 1999: ch. 7). Democracy helps to protect such basic personal liberties as liberty of conscience and speech.

These claims each have some plausibility, and each, if true, would be reason enough for welcoming democracy’s wider reach.2 But none of these arguments for democracy on grounds of their very desirable consequences depend on the premise that—or imply the conclusion that—democracy is the object of a human right. It is sometimes also said that democracy is a demand of justice: that justice comprises a right to democracy—more particularly, an equal right of individuals to political participation, including equal rights of suVrage, oYce-holding, association, assembly, and expression. But the thesis that democracy is an aspect of justice does not settle the human rights issue, except on the view— not widely shared—that all rights required by justice are also human rights. Consider—as an illustration of the distinction between a right founded on justice and a human right—John Rawls’s account of justice as fairness thank Alyssa Bernstein, Annabelle Lever, Frank Michelman, and Christine Sypnowich for comments. Although Jerry Cohen has not read this chapter, and I have not discussed its contents with him, I wish to express my gratitude for his intellectual presence in everything I write. 1 The thesis in the text is one of a family of claims about the relevance of regime type to war: that democracies do not Wght wars against other democracies (either because democratic institutions empower those who bear the costs of war or because of the regnant norms in a democracy), that democracies win their wars more frequently than non-democracies (either because they are better at mobilizing the population or better at picking their Wghts), and that democracies are less likely to use unacceptable methods in Wghting wars. Moreover, claims about democracy and war are part of a larger family of anti-realist theses about the importance of factors other than the distribution of power—for example, economic and institutional cooperation—in shaping international politics. All these claims are disputed by realists, who see the conduct of states under conditions of anarchy and associated insecurity as driven by the underlying distribution of power, which is assumed to be more fundamental than (‘second image’) diVerences in regime type (see Brown, Lynn-Jones, and Miller 1996; Desch 2002). See Waltz (1979) and Mearsheimer (2001) for general statements of realist skepticism about the relevance of regime type to the conduct of international politics. See Russett, Oneal, and Berbaum (2003) for a recent defence of the democratic peace theory, along with allied ideas about the relevance of trade and international institutions to peace. 2 Although reasons for caution would remain. As Edward MansWeld and Jack Snyder argue, even if democracy is good for peace, democratization may not be. They argue that democratization, absent strong political institutions (rule of law, executive authority), often generates belligerently nationalist mobilization and conXict (see MansWeld and Snyder’s Electing to Fight, 2005). If this view is right, the case for outside intervention in the name of a human right to democracy (assuming there is such a right) would be extremely tenuous. Democracy-promoting intervention would require that outside agents help to establish the strong institutional preconditions—and there are many reasons for skepticism about that ability, not the least being the limited staying power of outside agents.

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and of the law of peoples. Justice as fairness includes, as part of its Wrst principle, an equal right to participate in the processes of authoritative collective decisionmaking. According to this principle of participation, ‘all citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply’ (Rawls 1999a: 194). Here we have a right to democracy—more particularly, a collection of individual rights that require democratic processes of collective decision-making—founded on justice. Rawls’s proposed law of peoples (1999b: 78–81), in contrast, has a relatively short list of human rights that does not include either an equal right of participation or an equal liberty of conscience. This distinction between the rights that must be assured in a just political society and human rights is associated with Rawls’s distinction between liberal and decent but non-liberal peoples (ibid. 64–72). A liberal people endorses some form of political liberalism, all forms of which assign priority to a set of equal basic liberties, including equal rights of participation. A decent but non-liberal people has a legal system founded on a ‘common good’ conception of justice that includes protection of human rights and imposes genuine obligations on everyone in the territory. Associated with this common good conception of justice—and helping to ensure that its conditions are met—is a ‘consultative’ scheme of political decision-making that permits the expression of a range of opinions (including political dissent) and ensures representation of the fundamental interests of all. But consultation—joined with human rights, a rule of law, and arrangements that serve the common good—does not suYce for democracy. Thus a political society with an oYcial religion, as well as religious restrictions on oYce-holding and positions of inXuence, could in principle be decent and protect human rights, including liberty of conscience. And its decency would qualify it as a member in good standing in the global society of peoples—an equal member, beyond reproach by reference to the standards suited to cooperation across peoples and to which diVerent peoples may reasonably hold one another accountable (the law of peoples), and owed justiWcations by reference to reasons that we can expect both liberal and decent peoples to reasonably accept (ibid. 59). But while beyond reproach (in the sense just speciWed), the decent society would nevertheless be unjust in virtue of the inequalities of rights that violate (among other things) the principle of participation. Details aside, the essential idea—that a society might protect human rights (and be in other respects decent) while falling short of justice because it fails to ensure all the rights that justice demands3—is, I think, widely shared: it is, 3 Without the clause that begins with ‘because’, the claim would be fairly trivial: a society might protect all the human rights and yet fail to be just because justice requires more than protection of rights.

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for example, rare to see an argument for an account of human rights that proceeds simply by providing an account of the rights ingredient in a just society.4 I will not say more about Rawls’s view, though I will return later to the distinction between rights founded on justice and human rights. I mention the diVerence between his conception of the requirements of justice as fairness—and other politically liberal views—and of the law of peoples because it crisply illustrates my initial point: that the thesis that there is a human right to democracy represents a distinctive normative case for democracy, diVerent on its face from (although of course consistent with) both consequentialist arguments about the merits of democracy as a way to forestall great evils such as war, famine, and tyranny, and arguments for democracy that appeal to rights required in a just society. I want to consider whether there is a compelling case of this kind. To be clear: I am not asking whether, when all the relevant considerations are in, there is a compelling case for democracy, but instead what kind of case there might be, and, more speciWcally, whether a case of a particular type—a human rights case—is available. Investigations of this kind, characteristic of philosophy, often provoke an impatient response, because they are not about, bottom line, all-things-considered political judgements, but about the force and implications of particular lines of argument. I do not share this impatience because I think that normative-political argument is itself an important feature of political life. What matters is not simply the conclusions we arrive at, but how we arrive at them.

HUMAN RIGHTS: NEITHER MAXIMAL NOR MINIMAL 5 I have not yet explained how I understand ‘human rights’ as a distinct normative category. As a preliminary, then, I will say that human rights have three features: .

They are universal in being owed by every political society, and owed to all individuals.

4 The idea that human rights are a special subset of rights—not simply to be identiWed with rights founded on justice—is endorsed by theorists who embrace expansive sets of human social and economic rights, and is not conWned to human rights minimalists, who believe that human rights are conWned to rights of bodily security. See, for example, Sen (2004), in which he emphasizes that human rights are associated with freedoms of a particular importance. 5 This section draws on and extends Cohen (2004). That companion essay also contains a range of references that I have not included here, for reasons of space.

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They are requirements of political morality whose force as such does not depend on their expression in enforceable law.6 They are especially urgent requirements of political morality.

These features are suggested by the remark in the Universal Declaration of Human Rights, that human rights are ‘a common standard of achievement for all peoples and all nations’.7 I also make two methodological assumptions. First, I assume that an account of human rights must meet a condition of Wdelity : if there are human rights, then at least some substantial range of the rights identiWed by the principal human rights instruments—especially the Universal Declaration—are among them. The rights identiWed in those instruments represent ‘provisional Wxed points’ in our reXection on the nature and content of human rights. Second, I assume a condition of open-endedness. Thus, any proposed enumeration of human rights—as in the Declaration or the Covenants on Civil and Political Rights and on Economic and Social Rights8—is open-ended in at least two ways that parallel the open-endedness of rights embodied in law: (a) we can, through normative reasoning, argue in support of human rights that were not previously identiWed or enumerated; and (b) moreover, such rights that are identiWed are expressed in abstract language whose application requires interpretation. I will say more later about these Wve general features—universality, nonjuridiWcation, urgency, Wdelity, and open-endedness. With these as background, I want to now expand on my earlier comments about the nature and distinctiveness of a human rights case for democracy. To clarify the point, I will distinguish two stylized views about human rights: maximalist and minimalist. Maximalism holds that human rights are coextensive with rights founded on justice, and that the case for a human right to democracy is correspondingly straightforward—assuming (as I do) that an equal right to participation is a matter of justice. Minimalism conWnes human rights to protections of bodily security, and thus denies a human right to democracy (except derivatively, if democracy turns out to be the unique way to ensure the right to bodily security). If we reject both minimalism and maximalism about human rights, the issue is correspondingly less straightforward. A popular case for minimalism is founded on an interpretation of the value of toleration.9 This case presents a minimal set of human rights as 6 See Sen (2004) for discussion of this point. 7 The Universal Declaration, as well as other human rights conventions and charters, are printed in the Annex on Documents in Steiner and Alston (2000). 8 See the Annex to Steiner and Alston (2000). 9 I discuss this argument in some detail in Cohen (2004).

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the lowest common denominator of distinct ethical and religious traditions—as their ethical intersection. As IgnatieV summarizes it: ‘Human rights can command universal assent [emphasis added] only as a decidedly ‘thin’ theory of what is right, a deWnition of the minimal conditions for any life at all’ (2001: 56). But this rationale for minimalism misconceives toleration. Toleration, in this domain, requires that a conception of human rights be formulated and defended independently of particular ethical and religious traditions, and that the autonomously formulated conception be capable of eliciting support from adherents of diVerent and conXicting ethical and religious traditions, reasoning within the terms of their tradition. However, such support may require a reformulation of the tradition—some form of doctrinal evolution. Toleration does not require, as IgnatieV suggests, ‘universal assent’ or acceptance, but a certain kind of broad acceptability. Once we reject the lowest-common-denominator conception, the case for a minimalist account of human rights based on toleration is no longer so clear. Five other considerations are commonly oVered against more demanding lists of human rights, including a richer class of civil and political rights as well as some social and economic rights: . .

.

.

.

They threaten to overtax the resources and disperse the attention required for monitoring and enforcing human rights. More expansive lists cannot be fully realized because their realization is simply too costly or burdensome, and for that reason are not genuinely speaking lists of rights. Because rights correspond to obligations, and we cannot give determinate content to the obligations associated with an expansive class of rights in advance of their legal institutionalization, rights are limited in scope. Expansive lists threaten to substitute legal principles for political judgements—often uncompromising rights claims for informed and more supple political deliberation and judgement. Expansive lists threaten to subordinate legitimate political self-determination to the decisions of outside agents, who justify their interventions in the language of human rights.

For reasons that I will discuss later, the fifth consideration—collective selfdetermination—is not at all plausible as a basis for minimalism. As for the others, suYce to say that each has some force, but none presents a robust case for the minimalist’s narrow circumscription of human rights. You might, Wnally, arrive at minimalist conclusions if you begin with the premise that human rights are Lockean natural rights, understood as moral

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rights that individuals would have even in a pre-institutional state of nature.10 Because of the non-institutional setting, the content of natural rights is necessarily relatively restricted, and on a conception that identiWes natural and human rights, the latter would inherit that limitation. So it would be diYcult, for example, to explain the human right to fair legal process—a right that presupposes an institutional context—on the theory that a human right is a Lockean natural right.11 But the concepts of natural right and human right are fundamentally diVerent, as is evident from the institutional presuppositions of many of the rights enumerated in the Universal Declaration and the 1966 Covenants— including rights to a fair hearing, to equality before the law, and to take part in government, none of which could obtain in a pre-institutional state of nature. Unless the authors of the Declaration were conceptually confused in their enumeration of human rights, or believed that the institutionally speciWed human rights in the Declaration can be derived by applying non-institutional natural rights to institutional conditions, the argument for minimalism premised on an identiWcation of human and natural rights is deWcient. The idea that they were conceptually confused is implausible and defeated by considerations of Wdelity; and the idea that all the institutionally speciWed human rights—for example, the right to fair legal protections—are simply instruments for protecting pre-institutional natural rights is nowhere suggested in the arguments for the declared rights that seem to be answerable to considerations of a diVerent kind. Human rights are not rights that people are endowed with independent of the conditions of social and political life, but rights that are owed by all political societies in light of basic human interests and the characteristic threats and opportunities that political societies present to those interests. They are, in ways I will explain later, conditions of membership or inclusion in such societies. Shifting attention from minimalism to maximalism: I said earlier that human rights are not as expansive as rights founded on justice, that they are only a ‘proper subset’ of the rights required by justice. Minimalism—with rights limited to bodily security—is an extreme version of the proper subset view. Other versions embrace more expansive sets of rights than minimalism—say, rights to an adequate standard of living, to adequate levels of 10 In A Theory of Justice, Rawls (1999a: 442–3n.) mentions a diVerent, non-Lockean conception of natural rights, freed from the idea that natural rights are rights that individuals would have in a pre-institutional state of nature. According to this conception, natural rights are fundamental rights of persons, founded on justice, rather than on law or custom. The point in the text applies only to the Lockean idea. I am grateful to Valentina Urbanek for emphasizing the importance of this alternative conception. 11 I draw here on Beitz (2001, 2003, unpublished).

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health, education, and housing, and to forms of political representation and accountability that suYce for collective self-determination, though not a full complement of democratic rights, including full equality of political rights. While we should resist the pressure to the minimalist extreme, the proper subset view has much to be said for it. I want to present three considerations that recommend it: arguments based on self-determination, obligation, and toleration. To make the discussion a little less abstract, it will help to have a speciWc norm of justice at hand. So I will assume that justice requires, inter alia, rights to equal liberties of conscience, expression, association, and participation. Even if you embrace this principle as a requirement of justice, however, you might still resist its extension to the whole world as a human rights principle. Intuitively, the reason for such resistance is that human rights have, as I have said, a particular urgency, which transcends the urgency that surrounds considerations of justice generally. The three considerations here represent diVerent ways of articulating that urgency. First, a plausible element of any conception of human rights is a requirement of collective self-determination, which I understand to be a normative requirement, but less demanding than a requirement of democracy, which is one form of collective self-determination. In particular, let us say that collective self-determination requires that: (i) binding collective decisions result from, and are accountable to, a political process that represents the diverse interests and opinions of those who are subject to the society’s laws and regulations and expected to comply with them. The representation may, for example, be organized territorially, functionally, or ascriptively; but however it is organized, it may—consistent with collective self-determination—assign special weight to the interests of some social groups; (ii) rights to dissent from, and appeal, those collective decisions are assured for all; and (iii) government normally provides public explanations for its decisions, and those explanations—intended to show why the decisions are justiWed—are founded on a conception of the common good of the whole society. These three conditions of collective self-determination are politically important, and commonly violated, but they can be satisWed by an undemocratic political arrangement. Thus a society that meets the conditions of collective self-determination may still have an oYcial religion endorsed by a preponderance of the population. Moreover, it may be that only adherents of that religion are permitted to hold oYcial positions, that special privileges and assignments of resources are associated with the organizations of the oYcial religion (though other religious groups are politically represented), and that the selection of representatives is made through separate social groups and not through competitive party elections.

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Suppose now that the three conditions of collective self-determination are satisWed, and, in part for that reason, the political process does not result in gross infringements of other fundamental interests. But suppose, too, that democratic ideas lack substantial resonance in the political culture, or the history and traditions of the country. Then the value of collective selfdetermination itself recommends resistance to the idea that the political society should be required to meet the standard expressed in a principle of equal basic liberties, even if we think that that standard represents the truth about justice. I want to emphasize, though, that the case for this conclusion is stronger to the extent that the political society does accommodate and advance the good of all those subject to its laws and regulations, by providing, say, assurances of decent levels of health, education, and economic security, and some form of political accountability, as well as protections of personal security: assurances that extend well beyond a minimalist programme of human rights. That is, the argument from self-determination to the proper subset view is stronger to the extent that the political society can—by embracing a more than minimal class of human rights—meet the charge that, in the name of collective self-determination, it establishes and enforces a form of group domination. So the value of self-determination is important, and provides a basis for more than minimalist rights, but does not imply maximalism. A second consideration turns on the distinction between justice and political obligation. It is widely agreed that the members of a society have obligations to obey regulations even when those regulations are not fully just and/or do not emerge from just institutions: something less normatively demanding than justice is suYcient for an obligation to obey.12 Now suppose the members of a society have an obligation to obey—that is, the institutions meet the normative standards, whatever they are, that suYce for political obligation but fall short of the more demanding standards of justice. Then outsiders ought to show some reluctance to pressure for changes, and certainly a reluctance to intervene more forcefully or forcibly in the name of justice. Surely it is impermissible for outsiders to forcibly intervene to change arrangements with which members themselves are obliged to comply. So if human rights standards are urgent standards of political morality whose violation warrants external reproach (and in extreme cases sanctions and intervention), the distinction between norms of justice and norms of political obligation exerts some downward pressure, away from maximalism, on the content of those human rights standards. 12 See Simmons (1979), Dworkin (1986: ch. 6, especially 202–6) for discussion on obligations within unjust arrangements.

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A third point concerns toleration. If you accept a principle of equal public and private liberties as one requirement of justice, you think that non-liberal political arrangements—arrangements that are undemocratic but that nevertheless meet the three conditions for collective self-determination—are unjust. But you also endorse the idea that, on complex normative issues, reasonable people disagree: a commitment to toleration is another part of your political outlook. The idea of tolerating reasonable diVerences strongly suggests that the standards to which all political societies are to be held accountable—the appropriate common standards of achievement—will need to be less demanding than the standards of justice one endorses. In making this point—to underscore what should by now be clear—I am not endorsing a relativist view of justice, which has the fundamental requirements of justice varying with circumstance.13 Instead, the point is that a political society can, within limits, be unjust but beyond reproach, from the point of view of a global public reason (an idea I will explain soon). Of course the requirements of toleration are not obvious. Later, I will be connecting human rights, as standards of global public reason in judging organized political societies, to conditions of membership or inclusion in an organized political society. In eVect, I propose—as a substantive normative thesis, not as an analysis of the concept of reasonableness—that political conceptions and doctrines count as reasonable within global public reason (as distinct from what counts as reasonable within other settings) only if they accept the norms of membership, and that they need not endorse the democratic idea of society as an association of equals. To be sure, the value of toleration is not absolute. But it is a profoundly important value, and its importance in the current setting owes in part to the connections between the respect shown to a political society and the respect shown to members of that society, who ordinarily will have some identiWcation with that political society and its way of life, even if they are critical of the society, its ethos, and its practices. Not extending toleration has serious costs, and those costs must sometimes be paid. But the costs are real: in Rawls’s forceful words: ‘[L]apsing into contempt on the one side, and bitterness and resentment on the other, can only cause damage’ (1999b: 62). ‘Only’ puts the point too strongly. But the point remains: the presence of these costs operates to create some distance between the requirements of justice and the rights that are part of a doctrine of human rights.

13 Walzer embraces a form of relativism about justice when he says that a society is just when it is ‘faithful to the shared understandings of the members’ (1983: 313).

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If the human right to democracy is neither excluded (as with minimalism) nor demanded (as with maximalism) we need to determine whether the right to democracy—that is, an equal individual right to political participation— lies in the range of rights comprised by a reasonable conception of human rights, where the range includes more than a minimalist guarantee of bodily security but not everything required by justice. To address this issue, I will need to say more about the bases of human rights—building on the earlier points about how human rights norms are universal, urgent standards of political morality that need not be legally expressed and that are open-ended though their content must broadly Wt with settled understandings—and then about democracy. First, then, a conception of human rights—as I said earlier—presents a set of especially important, urgent standards that are universal in that all political societies are to be held accountable to them in their treatment of members. As a way to interpret this idea, I suggest that we think of the conception as a partial statement of the content of an ideal of what I will call global public reason. Generally speaking, global public reason comprises a set of political values, principles, and norms for assessing political societies, both separately and in their relations, that can be widely shared. Global public reason is global in its reach, inasmuch as it applies to all political societies, and global in its agent, inasmuch as it is presented as the common reason of all peoples, who share responsibility for interpreting its principles, and monitoring and enforcing them. Because it is presented as the common reason of all peoples in a deeply pluralistic world, as a reason whose content can be shared, it needs to be formulated autonomously from diVerent and conXicting religious, philosophical, and ethical traditions—as a conception of reasons that adherents of diVerent traditions can reasonably be expected to share. It is public in its use, in that it provides terms of argument and justiWcation used in discussing the conduct of diVerent political societies. The precise ways of exercising the responsibility of interpretation, monitoring, and enforcement—who exercises it (international courts and other institutions, regional bodies, individual states, non-governmental organizations) and with what instruments (ranging from monitoring, to naming and shaming, to sanctions, to force)—vary widely. Although the agent and reach of the reason are global, often acting on the principles of global public reason may consist principally in observing the implementation of its principles by separate political societies, or perhaps in assisting in their implementation.

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The more immediate responsibility for interpreting and implementing the principles will—as the Declaration and Covenants emphasize—typically fall to separate political societies themselves, in part, though not only, because of the value of collective self-determination aYrmed in Article 1 of the Covenant on Civil and Political Rights. Second, part of a conception of human rights is an account (a normative theory) of why the rights have the content that they have, and how the content of the conception may be extended, interpreted, and revised: the openendedness that I mentioned earlier requires such an account. Thus, while a conception of human rights needs to be expressed, at least provisionally, in a deWnite statement of rights, it is not given simply by an enumeration of rights, much less an enumeration of highly speciWc rights—a kind of rule book of enumerated rights—but also includes an account about what rights belong on the list and how to interpret the rights when their content needs application to an issue. Global public reason is better understood as a terrain of reXection and argument than as a list of determinate rules: that is part of the force of the term ‘reason’. At the same time, because the conception of human rights belongs to global public reason, the rationale for human rights needs to be formulated in terms that can plausibly be shared, which means that it cannot be formulated by reference to a particular religious or secular moral outlook.14 So we should not present, as the underlying rationale, the theory that, for example, human rights are preconditions for the autonomous moral agency prized by Kantians and the special dignity owing to the capacity for such agency; or that they are necessary for fulWlling divinely imposed obligations, whether the preferred statement of the obligations is found in Thomistic or Lockean natural law theory, or some formulation of Shariah; or that they are required for the full expression of human powers associated with Aristotelian ethical views. Instead, I propose that human rights norms are best thought of as norms founded on an idea of membership or inclusion in an organized political society, and not on a deeper outlook about the proper conduct of a good or righteous life. The relevant notion of membership is a normative idea— distinct, for example, from living in a territory. The central feature of the normative notion of membership is that a person’s good is to be taken into account by the political society’s basic institutions: to be treated as a member is to have one’s good given due consideration, both in the processes of arriving at authoritative collective decisions and in the content of those 14 See Bull (2002: especially 41–3) for a suggestive discussion of related ideas. Thus Bull distinguishes cases in which a power has its own moral rationale for its conduct from cases in which that rationale is founded on ideas that provide a common terrain. Only in the latter case do we have, in Bull’s special sense, an international society.

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decisions. For this reason, an idea of collective self-determination of a kind that I mentioned earlier is a natural correlate of the requirement of treating all as members (especially because of the Wrst two features of collective selfdetermination). And while human rights are not conWned to matters of process, the prerequisites of a process of collective self-determination—including rights of dissent, expression, and conscience—are among the human rights. Correspondingly, disagreements about the scope of human rights may be seen as proceeding on a shared terrain of political argument—the terrain of global public reason—and not (or not only) as disputes among diVerent moral and political traditions themselves. They can be understood, in contrast with disputes about the content of natural rights, as disagreements about what is required to ensure membership—about what consideration is due to each person in a political society, and how to ensure that consideration under particular circumstances. In emphasizing the connection between human rights and membership, I mean to aYrm a view more or less precisely opposite to the classical Bentham–Marx critique of rights. Rights are not excluding, dividing, atomizing, and community-defeating, but instead a partial expression of norms of social and political inclusion. I referred earlier to a condition of Wdelity on a conception of human rights: it must be broadly faithful to the content of the rights as laid out in the standard statements, in particular the Universal Declaration. The membership theory, I believe, meets this test of Wt. The importance of the notion of membership in an account of human rights is suggested by the breadth and substance of the rights in the Universal Declaration and the Covenants— including rights to education, work, and cultural inclusion, as well as assembly, expression, and participation. To be sure, some human rights (e.g. to life and to personal security) are not tied only to membership but are also more plausibly associated with demands of basic humanity, irrespective of membership in an organized political society. But the guiding thought behind the more capacious lists in the principal human rights instruments seems to be that an acceptable political society—one that is above reproach in its treatment of individuals—must attend to the common good of those who are subject to its regulations, on some reasonable conception of that good, and ensure the goods and opportunities that people in the territory and those subject to political rule need in order to take part in the political society. Human rights claims, then, identify goods and opportunities that are socially important because they are requirements of membership (and that are not provided as a matter of course, if they are provided at all). Failing to give due consideration to the good of members by ensuring access to such goods and

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opportunities is tantamount to treating them as outsiders, persons whose good can simply be dismissed in making laws and policies: no-counts, with no part to play in the political society. One reason for emphasizing membership in this way—apart from considerations of Wdelity—is suggested by the idea of political obligation. Thus, on a plausible account of political obligation, attending to the common good, on some interpretation of that good, is necessary if the requirements that a political society imposes on people under its rule are to have the status of genuine obligations and not mere forcible impositions. Regulations cannot impose obligations of compliance on those who are subject to them unless the regulations reXect a concern with their good. If an account of political obligation along these lines is correct—and it is more plausible than a theory of obligation that makes the justness of processes and outcomes a necessary condition for political obligations—the rights that are required if individuals are to be treated as members would be identical to those that are required if the requirements imposed by law and other regulations are to be genuine obligations.

EQUALITY AND DEMOCRACY Having said some things about a conception of human rights, I now need to introduce a conception of democracy. Simplifying a vast terrain: the essential point for addressing the question about human rights and democracy is that an idea of equality plays a central role in any reasonable normative conception of democracy. In fact, disagreements in normative democratic theory are typically disagreements about what is required in treating those subject to the rules (laws and regulations) as equals under the rules that apply to all and with which all are expected to comply. One way to bring out the special importance of an idea of equality in any plausible conception of democracy is to note that the term ‘democratic’ is sometimes used to characterize a form of politics, and also used more broadly to describe a type of society, characterized, broadly speaking, by conditions of equality—a society of equals, with equal rights and equal status, whose members relate to one another as equals. When de Tocqueville (2000) discusses the democratic revolution in his Democracy in America, and the replacement of an aristocratic by a democratic society, he has in mind a transformation of the social hierarchy characteristic of feudalism into equality of condition, and not the emergence of electoral competition or widespread suVrage rights.

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Similarly, Rawls says that his two principles of justice as fairness express the underlying ‘democratic conception of society as a system of cooperation among equal persons’, and the idea of ‘democracy in judging each other’s aims’, meaning that members of a just society do not—‘for the purposes of justice’—assess the ‘relative value of one another’s way of life’. He also describes his conception of equal opportunity and fair distribution—his diVerence principle—as a conception of democratic equality.15 Two ideas are essential in the characterization of a society as democratic, as a society of equals. First, each member is understood as entitled to be treated with equal respect, and therefore as entitled to the same basic rights, regardless of social position. An aristocratic or caste society or some other society with Wxed social orders requires equal respect (and equal rights) within social ranks, but diVerential respect (and rights) across ranks. Second, the basis of equality lies, in particular, in what I will refer to as political capacity: we owe equal respect to those who have suYcient capacity to understand the requirements of mutually beneWcial and fair cooperation, grasp their rationale, and follow them in their conduct. So the basis of equality in a society of equals lies in the capacity to understand and follow the requirements that provide the fundamental standards of public life—a capacity that appears to be more or less universally characteristic of human beings (though its basis, either in a particular mental module or in more generalized powers of reXective thought, is not well understood). The fact that ‘democracy’ has these two applications—to a form of society and a form of political regime—expresses an insight, not an equivocation: the insight that a democratic political arrangement expresses in the design of its institutions, in particular at the supreme level of political authority, the conception of the members as equal persons owed equal respect. Moreover, the connections between a democratic society and democratic political arrangement run in both directions. Thus, once the institutions of political democracy are in place, it is natural to regard the members of society as equals, with a broader claim to equal concern and respect in the arrangements of society: that is, natural to endorse the democratic conception of society. It is natural inasmuch as the conception of members as equal persons is itself suggested by the practices associated with democratic politics. For those practices entitle individuals—irrespective of class position or place in the distribution of natural assets—to bring their interests and their judgements of what is politically right to bear on supremely authoritative collective decisions. They provide that entitlement in the form of rights of participation, association, and expression: not just any rights, but 15 This paragraph and the next three draw on Cohen (2002).

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equal rights to participate in making fundamental judgements about society’s future course. ‘The instant the people is legitimately assembled as a sovereign body’, Rousseau says, ‘all jurisdiction of the government ceases, the executive power is suspended, and the person of the humblest citizen is as sacred and inviolable as that of the Wrst magistrate’ (1997: ch. 14). At the same time, once the members of society are regarded as free and equal individuals—once we reject the idea of a Wxed aristocratic hierarchy of unequal worth and entitlement, and accept the idea of a suYcient equality of political capacity—it is natural to conclude that there ought to be widespread suVrage and elected government under conditions of political contestation, with protections of the relevant liberties (of participation, expression, and association). For the extension of political (and other) liberties expresses the respect owed to persons as equals, with political capacity: Dahl calls this extension of the idea of a society of equals to political arrangements ‘the logic of equality’ (2000: 10). The thought is that once a democratic society is in place, with its ideas of equal standing and equal respect, a political democracy is a natural concomitant, inasmuch as its gives public expression—manifest and crystallized in institutions—to the idea of equality and equal respect, and provides that expression in the basic design of the essential arrangements of collective decision-making. Martin Luther King, Jr. said that the ‘great glory of American democracy is the right to protest for right’—that citizens have a right to bring not only their interests but also their sense of justice to bear on matters of common concern: a right to exercise what I have called their political capacity. So the emergence of a democratic society fosters the emergence of a political democracy, with the basic liberties of citizenship secured for all adult members—fosters, at least in the sense that it provides a forceful rationale for a democratic political society. Three dimensions of a right to participate are suggested by an account of democracy founded on this conception of persons as equals: 1. equal rights of participation, including rights of voting, association, and oYce-holding, as well as rights of political expression; 2. a strong presumption in favour of equally weighted votes; and 3. equal opportunities for eVective political inXuence. I want to make a brief comment on the third element, because it helps to bring out the underlying rationale of the right to participate in a conception of free and equal persons.16 Thus democracy’s right to participate demands equal

16 See Cohen (2001) for further discussion on the idea of equal opportunity for political inXuence.

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opportunity for eVective political inXuence rather than equality of inXuence. The simple demand for inXuence—irrespective of one’s own actions or of the considered convictions of others—is unreasonable. That is because a compelling interpretation of the idea of political equality, in a society of equals who are endowed with political capacity, must ensure a place for individual responsibility. Members of a democratic society are represented as free and equal. As free, they are to be treated as responsible for the exercise of their political capacity, and that must be reXected in the content of the equal right to participate. If I demand inXuence irrespective of my conduct or the judgements of others, I deny the importance of such responsibility. The importance of equal opportunity for political inXuence is obscured by the fact that much democratic theory in the ‘elite’ tradition, which endorses a more minimalist conception of democracy and the associated political rights, casts persons principally in the role of audience, with a fundamental interest in listening to debates, acquiring information through both formal political communications and more informal processes of discussion, arriving at judgements about policies and candidates, and acting as political agents when they express those judgements at the polls, making informed judgements among competing candidates. But as the conception of persons as free and equal in virtue of possessing political capacities suggests, citizens are also agents, participants, speakers, who may aim to reshape both the terms of political debate and its results, by running for oYce and seeking to inXuence the views of candidates, the outcomes of elections, and the interelection conduct of politics. A requirement of equal opportunity for political inXuence aims to ensure that they are in a position to play that role, should they wish to take it on.

A HU M A N R I G H T TO D E M O C R AC Y ? In asking whether there is a human right to democracy, then, I am asking two related questions: Is the equal right to participate that I have associated with democracy a human right? And is the democratic conception of persons as free and equal—the conception that underlies the equal right—a plausible component of a conception of human rights comprised within global public reason?17 We know that the conception of persons as free and equal is not 17 It might be objected that I have loaded the dice against a human right to democracy by presenting a conception of democracy more demanding than the minimalist idea of democracy as a system in which regular, competitive elections decide who runs the government. The objection would say that, on a less demanding view, there is a human right to democracy.

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universally accepted by diVerent ethical and religious outlooks, but that is not the relevant question: as I indicated in my earlier remarks about toleration, some conceptions may need to be adjusted to the terms of an acceptable global public reason. I want to discuss three considerations that might be advanced in support of the thesis that there is a human right to democracy, and respond critically to each. I am unconvinced that there is a human right to democracy, because I do not Wnd these considerations compelling. 1. Truth. In support of the claim that the conception of persons as free and equal—and the associated equal right to participation—is a plausible element of a conception of human rights, it might be argued that it represents the truth about human beings and our moral standing: not a truth acknowledged by all, but one that has, like virtually all interesting truths, come to be understood over the course of history. But I have proposed that we think of a conception of human rights as part of a conception of global public reason. The aim of a conception of global public reason is to present standards that one can reasonably expect others to accept: to present reasons that can be shared, and that provide a common standard of achievement and a basis for common responsibility. What is true and what is reasonable to believe are distinct: the former is singular and the latter is plural; incompatible views can each be reasonable to believe, though they cannot both be true. Now it is objectionably intolerant to hold that everyone must acknowledge the normative truth and that a conception qualiWes as an element of public reason simply in virtue of its truth. I am not here denying the truth of the view that persons are free and equal, and entitled to be treated as such as a matter of justice. To the contrary, I believe that individuals are free and equal and that they have an equal right to participate, from which it follows—since believing is believing true—that I believe that these propositions are true. Nor am I suggesting that political argument should exhibit the indiVerence to truth and falsity that Frankfurt (2005: 34) claims is the essence of bullshit. Instead I am aYrming the distinction between what is true and what it is reasonable to expect people to believe in the setting of global public reason, and emphasizing that the truth of a proposition does not suYce to win it a place as an element in global public reason. A conception of persons as equals is true, and it may have such a place, but it does not gain entry simply in virtue of being I am not convinced that the assertion in the previous sentence is true. But even if it were, the point would remain that the democracy and associated rights required by justice are more demanding than the democracy and rights required by a conception of human rights.

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true—any more than claims about divine creation gain entry in virtue of being true (if they are true). 2. Bootstrapping. It might be said instead that this conception of persons is not only true but also implicit in global public reason because some (openended) account of human rights is part of global public reason and—here is the controversial claim—all human rights depend for their justiWcation on the conception of persons as free and equal. If this latter claim were true, the equal right to participation would not be in any way normatively distinctive: it could not be cabined oV from other rights, but would be best understood as part of a single normative structure with a common rationale. Assume that there are some human rights, that, as I have suggested, human rights are not simply given by a list, but have a rationale that is itself part of the terrain of global public reason, and that the rationale includes a conception of persons as free and equal. Then there would be a right to democracy. The right to democracy could not, on the best account of human rights, be separated oV, because the democratic conception of a society of equals, and the political norms associated with it, would be implicit in all human rights discourse and an appropriate guide to its interpretation, and thus to the extension of human rights beyond those that are already settled. But this argument does not seem right. I cannot explore the issues in detail here, but in a companion piece, I sketch interpretations of arguments within Confucianism and Islam that accept the importance of membership, and support a more-than-minimalist conception of human rights, but neither of which depends on the democratic conception of society or the idea of persons as free and equal. The Islamic conception is founded on obligations given by law, and interprets rights as preconditions for fulWlling the obligations. But it may not extend to the idea of an equal political capacity. Similarly, the Confucian view illustrates the idea that rights may be founded on responsibilities associated with positions in social and political relations: in this case, the rights are extended as preconditions for fulWlling those responsibilities, which are diVerentiated across individuals. But there is no conception of persons as free and equal, and of a moral-political capacity possessed in suYcient degree by all to provide the basis of equal political standing and equal political opportunity. More generally, I proposed earlier that we think of human rights as partial assurances of membership or inclusion, rather than as founded on an idea of persons as free and equal. The latter conception is associated with membership speciWcally in a democratic society, understood as a society of equals, and not with membership and the possession of rights as such.

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3. Unacceptable Conditions. A third argument—which shades back into the instrumental conceptions that I mentioned at the outset—points to unacceptable conditions commonly associated with the absence of democracy: unacceptable consequences (war, famine, and tyranny) and the unacceptable subordination associated with an absence of equal political standing. The claim, then, is that these conditions—quite apart from any independent force of the idea of persons as free and equal—provide the case for including an equal right to participate as a human right and thus for including the idea of persons as free and equal, which is associated with that right. I have two responses. First, if democracy is a requirement for avoiding unacceptable circumstances, we do have a case for it, though it may also be hard to achieve democracy when the political culture is deeply at odds with the underlying rationale for it, in a conception of persons as free and equal. We may hope, with Zakaria (2003: especially 150), that if people practice it long enough they will start preaching it, but there may be large hurdles to establishing and consolidating the practice. Second, it is not clear how strong a case we have for the claim that a society that ensured a relatively rich set of human rights, including conditions of collective self-determination short of democracy, would nevertheless be so clearly unacceptable as to bear so much argumentative weight in the case for a human right to democracy. Terrible evils are correlated with the absence of democracy, including expansionist foreign policy, famine, tyranny, and cruel subordination. But the same cases are also typically associated with an absence of collective self-determination, which is less demanding than democracy; with a weak or absent rule of law; and with weak protections for speech, press, and association. Isolating and assessing the grossly objectionable implications that Xow speciWcally from an absence of democracy as distinct from these other conditions is diYcult. Thus, Sen (1999: ch. 7) famously observes that democracies do not have famines, and points out the terrible Chinese famine after the Great Leap Forward. But in the period after the Great Leap Forward, China also lacked collective self-determination, the rule of law, and (as Sen emphasizes) protections of speech, press, and assembly. It is hard to know whether to lay the responsibility speciWcally on the doorstep of democracy.

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I have argued that there is no human right to democracy. But is this view not deeply patronizing? Does it not suggest, in the name of tolerance, that democracy is good for ‘us’ but not for ‘them’—that benighted peoples, who have not yet received full illumination from enlightenment’s bright candle and fully understood human moral powers, do not have the right to be treated as equals in their political arrangements? Surely toleration has its limits. Surely it does. And an essential point of a conception of human rights is to describe those limits. But this blunt observation about toleration carries no argumentative weight. The issue is not whether to tolerate genocide, slavery, torture, group starvation, enforced illiteracy, or imprisonment without trial or persecution for religious or political convictions. The question is whether a system with unequal political rights should be tolerated—on the assumption that it ensures collective self-determination and protects a reasonably wide range of other human rights, and thus provides the bases of membership. The answer to that question is not aided by sweeping platitudes about the limits of toleration. More fundamentally, the objection on grounds of patronizing insult is entirely misconceived. The position I have presented implies no asymmetry in rights to democracy. Justice requires democracy: that is true for everyone, for us—so to speak—as well as them. Democracy is not required as a matter of human rights: that too is true for us and them. A world with more democracy would be a more just world, because it gives people the treatment as equals to which all are entitled. But democracy, with its equal right to participate, is not part of the common standard of achievement, defensible on the terrain of global public reason, to which global public responsibility extends. Protecting human rights is then a less demanding standard than assuring justice and the democracy it requires. Less demanding, but let us not forget that the world would be unimaginably diVerent—many hundreds of millions of lives would be immeasurably better—if this less demanding but exacting standard were ever achieved.

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REFERENCES Beitz, C. (2001). ‘Human Rights as a Common Concern’, American Political Science Review, 95(2). —— (2003). ‘What Human Rights Mean?’, Daedalus, Winter. —— (unpublished). ‘Human Rights and the Law of Peoples.’ Brown, M. E., Lynn-Jones, S. M., and Miller, S. E. (eds.) (1996). Debating the Democratic Peace. Cambridge, MA: MIT Press. Bull, H. (2002). The Anarchical Society: A Study in World Order, 3rd edn. New York: Columbia University Press. Cohen, J. (2001). ‘Money, Politics, Political Equality’, in A. Byrne, R. Stalnaker, and R. Wedgwood (eds.), Facts and Values. Cambridge, MA: MIT Press. —— (2002). ‘For a Democratic Society’, in S. Freeman (ed.), Cambridge Companion to Rawls. Cambridge: Cambridge University Press. —— (2004). ‘Minimalism About Human Rights: The Most We Can Hope For?’, Journal of Political Philosophy, 12(3). Dahl, R. (2000). On Democracy. New Haven, CT: Yale University Press. Desch, M. (2002). ‘Democracy and Victory: Why Regime Type Hardly Matters’, International Security, 27(2). de Tocqueville, A. (2000). Democracy in America, trans. and ed. H. C. MansWeld and D. Winthrop. Chicago: University of Chicago Press. Dworkin, R. (1986). Law’s Empire. Cambridge, MA: Harvard University Press. Frankfurt, H. G. (2005). On Bullshit. Princeton, NJ: Princeton University Press. IgnatieV, M. (2001). Human Rights as Politics and as Idolatry. Princeton, NJ: Princeton University Press. MansWeld, E. and Snyder, J. (2005). Electing to Fight. Cambridge, MA: MIT Press. Mearsheimer, J. (2001). The Tragedy of Great Power Politics. New York: W. W. Norton. Rawls, J. (1999a). A Theory of Justice, rev. edn. Cambridge, MA: Harvard University Press. —— (1999b). The Law of Peoples. Cambridge, MA: Harvard University Press. Rousseau, J.-J. (1997). Social Contract, Book III, trans. V. Gourevitch. Cambridge: Cambridge University Press. Russett, B., Oneal, J., and Berbaum, M. (2003). ‘Causes of Peace: Democracy, Interdependence, and International Organizations, 1886–1992’, International Studies Quarterly, 47(3). Sen, A. (1999). Development as Freedom. New York: Knopf. —— (2004). ‘Elements of a Theory of Human Rights’, Philosophy & Public AVairs 32(4). Simmons, A. J. (1979). Moral Principles and Political Obligations. Princeton, NJ: Princeton University Press. Steiner, H. J. and Alston, P. (2000). International Human Rights in Context: Law, Politics, Morals, 2nd edn. Oxford: Oxford University Press.

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Waltz, K. (1979). A Theory of International Politics. Reading, MA: Addison-Wesley. Walzer, M. (1983). Spheres of Justice. New York: Basic Books. Zakaria, F. (2003). The Future of Freedom: Liberal Democracy at Home and Abroad. New York: W. W. Norton.

Thanks G. A. Cohen

I want to express my gratitude to Christine and to the loyal friends who responded to her invitation to contribute to this book. Their generosity, and their aVection, are a source of great happiness to me. They have honoured me beyond all reasonable measure and they have provided me, and you, with a great deal of good thought to think about. When Christine told me that the projected title of this volume was The Egalitarian Conscience, I recoiled a little. I resisted the title because I thought that I did not deserve it, on two counts. My Wrst reason for thinking that I didn’t deserve to be called ‘the egalitarian conscience’ is that the phrase represents me as holier than I am. I am certainly not holier than I am: indeed, it’s a good bet that I am not even holier than thou. I disavowed all claims to holiness in my If You’re an Egalitarian, How Come You’re So Rich? The book contains a footnote in which I say that someone might ask me: ‘If you’re the egalitarian who wrote, If You’re an Egalitarian, How Come You’re So Rich?, how come you’re so rich?’, and I did not regard the question as out of place. I might have called the book If I’m an Egalitarian, How Come I’m So Rich?, but that title would have exposed to public view my vice of self-preoccupation. (I am, of course, indulging the vice here, but this is a special place.) But, second, and equally strongly, I thought I didn’t deserve the mooted designation because it makes me seem so grim, so inspecting, so admonishing, so unremittingly judging.1 A friend who had, over the years, built for himself an opulent life, asked me, when he was about to acquire some further expensive accoutrement, whether I thought that he would be wrong to do so. I was taken aback, for at least two 1 My response to the title was therefore like Elizabeth Bennet’s, who responded as follows to a remark of Miss Bingley’s: ‘I deserve neither such praise nor such censure’. [Jane Austen, Pride and Prejudice (Oxford: Oxford University Press, 2003), p. 27]. I claim no further resemblance between me and Bennet.

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reasons. One was that I had this Yiddish reaction where one says (in this case I said it only in my head) ‘Shpet dermont!’, which means2 ‘Isn’t it a little late in the day to begin to consider that now?’ But I was also taken aback because my friend was asking me to judge him, and I didn’t want to. I am not the judge that the title of this book might suggest that I am. My motto is: ‘Judge not, lest me be judged’. (And anyway, some of my best friends live opulently.) I nevertheless accepted the title, because I couldn’t think of anything better, and because, in a way, I could see what Christine meant. I admit to deserving the title in one sense. It is true that I seek to press my conviction, and all the intellect at my command, against liberals who profess a certain egalitarianism and then end up (as I believe) retreating from it. Hence the title of my forthcoming book, Rescuing Justice and Equality: I try to rescue them from Rawlsian liberalism, but the liberals, the Rawlsians, that I consequently criticize, aren’t being criticized personally. (And it should be clear from the content of this book that some of my best friends are liberals.) 2 Because of the contrasting pungencies of words in Yiddish and English, it takes many more words to say it in English. The (totally) literal translation is ‘late remembered’, and that doesn’t cut it.

Index abortion 191 acceptance, principle of 200, 201, 202, 203, 206 accountability 137–8, 139–40, 233, 234, 235 actions 137, 140, 161–2 address, forms of 25 admission of expressions 37, 47 advantage 71, 72, 131 n., 177 equal access to 70 agent monotonicity (AM) 214–15, 216, 218, 219, 220 aggressive hypocrisy 53 aid 180, 189, 190 All Souls College 1, 5, 6 allocation rules 196, 197, 210, 215, 216, 217 admissible 213 axiomatic characterization of 213 impartial 207, 218, 219 partial 212 possible, zillions of 221 prioritarian 213 solidarity characterized as a property of 218 wealth 198 alms-giving 7, 181, 183, 186, 188 expression of gratitude for 187 humiliation undermines the case for 187 social justice in tension with 180 Alston, P. 230 n. altruistic motives 187 ambitions 13, 17, 19 ambivalence 187, 191 American Declaration of Independence (1776) 36, 42 analytical Marxists 3, 5, 6, 7

analytical philosophers 1, 3 Anderson, E. 24, 25, 28, 29, 186 n. Anderson, T. 41 anguish 178 anonymity axiom 213 anti-prioritarianism 198, 206, 210 anti-Semitism 185 n. aristocracy 51, 239, 240, 241 ‘aristocracy of the rich’ 48 Aristotle 51, 192, 237 Arneson, R. 18, 20, 131 Arrow, K. J. 218 aspirations 104, 105, 110, 113 wants and 113, 121, 125, 127, 128 assault 90–1, 92 Athenian politics 52 attributability 74, 76, 77 Austen, Jane 249 n. autonomous moral agency 237 autonomy 81, 151 axioms 213–19, 220, 221 background justice 105, 106 deviations from 109 n. preserving 107, 110, 113 securing 107, 110 bads, deserved 137 n. Barnave, Antoine 43, 47, 50, 51 Barry, Brian 196, 198 basic liberties 160, 161, 162, 163, 165, 241 democracy helps to protect 227 equal 166, 228, 234 Rawls’s list of 166, 169 specified 159 basic needs 29 basic structure 6, 102–29, 180 basic structure objection (BSO) 111–14, 117, 119, 121, 127

252 Bassett, Jake 109 n. Becker, C. 42 begging 6–7, 177–94 see also alms-giving Begoue¨n (slave-owning French deputy) 43 Beitz, C. 232 n. benefits 15, 20, 140, 181 Benot, Y. 43, 44, 46 Bentham, Jeremy 95, 163–5, 168, 169, 171 n., 238 Berbaum, M. 227 n. Berlin, I. 156 n., 157, 165 Big Issue 187 Binmore, K. 222 n. Blair, Tony 182 blame 137, 138, 139, 191 blamelessness 184 bodily security 229 n., 230, 232, 236 bootstrapping 244 Bordeaux 46 Bosnia 178 Bourdieu, P. 12 n. bourgeoisie 11, 47 n. attitude towards beggars 188–9 ruin of 46 Brecht, Bertolt 185–6, 187, 192 Brissot, Jacques Pierre 46, 51 Broome, J. 26 n. Brown, M. E. 227 n. Buchanan, A. 180, 189, 190 n. Bull, H. 237 n. bullshit 3, 243 Burke, Edmund 46 n. buskers 187 Caribbean colonies 43 caste society 240 categorical imperative 5, 56, 57, 58, 61, 93 deontological 62 teleological 60, 62

Index causes 151, 152 characterization theorem 221 charity 89, 178, 190 compulsory 189 justice and 179–81, 190 charity paradox 187 Chichele Chair of Political and Social Theory 1 China 245 choice exemption 131–2, 133–6, 137, 140–5 inequality and 147–50 set aside 151 choice-twins 134 n. choices 70, 72, 75, 82, 221 circumstances and 17, 26 determination of 68 differences in 13 economic 104, 111, 128 egalitarianism 18 fate should be determined by 17 imprudent/ill-advised 19 incentives influence 133 inequalities due to 14, 18, 20, 130–52 lifestyle 16 moral 104 patterns of 123 political 104 protecting agents against adverse consequences of 76 voluntary 15 work-related 13 see also choice exemption; costs of choices; individual choices; responsible choices circumstances 17 disadvantaged 15 distinction between choices and 18, 26 family 84 inequalities and 20 social 84 unequal, remedying 18, 22 citizenship 241 democratic 23

Index citizenship (cont.) equal 179, 186 good 24 civic liberalism 26 n. civic virtue 22 civil rights 47, 231 claims 25, 56, 58, 170 endowment-insensitive or ambitionsensitive 29 evaluating one’s own 29 fairest 23 individual well-being 86 interconnected 226 judging the justice of 29 justifying 76–7 legitimate 24 moral 22, 23, 191 plausible 227 responsibility 78, 80–5 shared standard to adjudicate 85 ‘weak equalisandum’ 71 Clarkson, Thomas 43 class: attitudes 84 background 12 barriers of 25 divided societies 11 position 25 privileged 14, 17 class stratification 14, 15 commitment to reduce/redress 17, 18 depth and omnipresence of 11 ended 14 evils of 26 inherited 13 injustices of 16 pernicious effects of 13 preventing the emergence of 29 removed 13 classless society 25, 28 coercion 165 coercive institutions 114, 118 basic structure limited to 121

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distinction between non-coercive and 121–2, 127 justice of 124–5 legally 112, 122, 123 redistribution and 179 regulated by the strict principle 115, 117, 126 Cohen, G. A. 1–7, 9, 11, 13, 18, 20 n., 21, 22 n., 30, 36, 53, 70–82, 83, 85–7, 88, 94, 99–100, 102, 110–28, 130, 131, 136, 142, 143 n., 150, 145 n., 177, 181, 182, 185, 190 n., 196, 197 n., 199, 223 Mr. Morgan’s yacht 6, 154–76 Cohen, Joshua 7, 118, 229 n., 230 n., 240 n., 241 n. collective self-determination 231, 235, 237 conditions of 233–4, 245 evils in absence of 245 prerequisites of 238 commodities 25, 26 common good 228, 233 communism 9, 11, 13 communitarianism 26 n. community 28 ‘community of environment’ 15 compassion 192, 205 compensation 29, 97, 143, 210 costs of training 83 egalitarian justice demands 86 enforceable 96 expensive tastes 72, 75, 77, 78, 79, 80 extended chain 98 financial 150 full, right to 101 just state should provide 87 particularly onerous and unpleasant tasks 83 possibility of 96 condescension 26 Condorcet, M. J. A., Marquis de 46 n. conformity to law 59, 61, 63, 64, 65

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Confucianism 244 conscription 6, 88–101 consequentialism 91, 93, 98 disengagement of 92 pluralist 98 consumption: deferred 12 private 28 contentment 72 contracts 91, 94, 208 contractualism 69 control 137, 138, 145 cooperation 124 economic and institutional 227 n. social 219 correlativity 89 corruption 48 costs of choices 21, 22, 24 externalizing on others 23 responsibility for 14, 18, 28 rightful obligation to pay for 29 counterfactuals 137 Covenants (Civil and Political Rights, and Economic and Social Rights 1966) 230, 232, 237, 238 Crook, M. 48, 49, 50, 51 Crosland, C. A. R. 11, 13, 26 cultivation of the virtues 192 current economic status 15 Dahl, R. 241 decency 89, 228 deception 183 decision-making: collective 228, 241 political consultative scheme of 228 Declaration of the Rights of Man (France 1789) 36, 37, 43, 44, 47, 48, 50, 52 defensive hypocrisy 53 degradation 178, 185 demands and supplies 209 democracy: human rights and 7, 226–48 victory for 51

deontological principles 58–9, 62 Desch, M. 227 n. desert 104, 141 economic reward should be proportional to 82 goods and bads for 137 n. illiberal aim 145 moral 82, 83 merit or 182 preoccupation with 183 responsibility distinguished from 137 n. rewarding 81, 83 ‘deserving’ poor 24 deservingness 140, 145 desire(s) 57, 58, 59, 60, 63, 64, 65, 67, 74 discouraged 105, 113, 125 distribution of 104 gratification of 36 passive carriers of 72 satisfaction of 92 Desmeuniers (French deputy) 48 despotism 46 ‘details of the countinghouse’ 13, 16, 26, 27 Dickinson, John 39 difference principle 22 n., 82–3, 102, 159, 166, 180, 181, 196, 219, 240 costs of implementing 197 lax 110, 112, 116 n., 117, 119, 120, 128 strict 110–20 passim, 126 ultralax 118 weakening of 197 differential resource endowment 210 dignity 81, 185, 186 disabilities/disabled persons 12, 165, 203, 204, 206, 210, 211, 213, 215, 217, 219 disadvantaged citizens 7, 179, 185 distrust of 23 social arrangements that help 180 see also involuntary disadvantage; voluntary disadvantage discomfort 73, 178

Index dishonesty 171 displeasure 68 disposition 94, 95 n. dissidents 158 distribution 131 ability to pay and 25–6 ambition-sensitive 17, 19, 28, 29 choice-sensitive, circumstanceinsensitive 23 egalitarian 179 endowment-insensitive 17, 19, 28 equal 181 fair(est) 23, 240 fairness of inequalities in 29 just 83, 159, 189 struggles over 29 unequal 181 variations in natural talents affect 28 see also wealth distribution distributive justice 20, 27, 28, 95, 104, 137 n., 179 attempt to characterize 221 complexity of 221 disadvantage that triggers 185 goods and 151 egalitarian 11, 27, 86 environment for 197 impartiality and 7, 195–225 indices of goods in theory of 218 left-liberal principles 199 maximin principle of 135 n. merit or desert and 182 new theory of 17 responsibility and 141 n. socialist theorizing about 18 solitdarity and 195–225 distributive shares 85 diversity 16, 18 commitment to 19 individual 11 inequalities and 12 division of labor 166 institutional 106, 107–8, 109 n., 113, 128

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moral 107, 108 n., 113, 128 domain assumption 211–12, 213, 215 n., 216, 218 Dorigny, M. 46 n. Dougherty, K. 53 n. drug addicts 182, 184 dualism 108 n. Dupont de Nemours, Pierre Samuel 44 duties 59, 63, 64, 68, 179, 182 charitable 190 desire to do 65 enforceable 89, 90, 91, 94, 97–8, 100 imperfect 180 just 90, 91, 95 justice 189–90, 191 legal 89 maxim of action from 66 moral 88, 89, 91 n., 95, 140, 178 natural 103, 107 perfect 180 unconditioned necessity of 67 Dworkin, R. 17, 18, 20, 22 n., 25, 70, 71, 99, 154, 160, 182, 195, 207–10, 212, 220 education 13, 15, 213 choices about 221 efficacy 183, 184, 189, 190 effort 81, 82, 84, 97 egalitarian conscience 1–7, 249–50 egalitarianism 4, 12, 13, 180 choice 18 delegitimized 20 left-wing defenders of 11 personal obligations of 177 n. personal prerogative and 190 relationship of solidarity to 213 sensibility of 192 weakening of 197 welfare 131 n. see also liberal egalitarianism; luck egalitarianism

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Eliot, George 36, 37 elites 36, 40, 42 Elster, J. 3, 5, 37 n., 41 emancipation of Jews 42 embarrassment 186, 187 emotional attachment 25 ends 65, 142 assumed 143 capacity to modify 83 costs of providing for pursuit of 78 expensive 75, 78, 80 freedom to advance 108 objective 57, 58, 64, 67 responsibility for own 72–80, 85, 87 subjective 57, 58, 64, 66, 67 Engels, Frederick 188–9 enjoyment 75, 86 entitlements 16, 19, 96, 140, 141, 240 insistence on 185 just 138 partial 145 rightful 22 unequal 241 envy 13 equal-resource rule 216, 217 equal rights 227, 228, 230, 236, 241 equal-welfare rule 217 equality: achievement of 115 argument for 42 democratic 25, 239–42 deviations from 142 distributive 25, 26 n., 27 gender 125, 126 liberal conception of 11, 23, 27 logic of 241 responsibility and 70–87 throwing a veil over 5, 44, 49 wrong ethos of 23 see also political equality; social equality equality of fortune 18 equality of opportunity 72, 77, 136 n., 241–2, 244 advantage 131 n.

fair 83–4, 102 goods 143–4 equality of resources 18 ‘equality of what’ question 4, 131, 142, 144, 148, 151 estate tax 14 Estlund, David 120 n., 190 n. ethics 178, 222 Aristotelian views 237 dynamic axiomatic 219 non-welfarist 217 welfarist 217 ethos: egalitarian 22, 23, 24, 115 justice 21, 22, 116, 117, 118 social 22, 23, 118 European left 30 evils 169, 245 expectations 11, 104 more widespread changes in 125 psychological 146 remuneration 115 shared 123 socially constructed 122 expected utility 199, 208 expensive tastes 4, 131, 154, 204 compensation for 72, 75, 77, 78, 79, 80 exploitation 27 extortion 187 extra income 110 based on natural talents 21 deserved 14 entitlement to 19 leisure sacrificed for 12 Eyck, F. 49 fair agreements 105 fairness 14, 15 assessing 29 background 106 individualized 17, 28, 30 justice as 102, 103, 118 n., 227, 228, 229, 240 monitored and preserved 106

Index fairness (cont. ) norms of 16 securing 110 tension between respect and 23 family 84, 123, 124 sexist patterns within 125 family law 122, 125–6 Farrand, M. 37, 39, 40 n., 41 Federal Convention 37–42 female suffrage 36 feminism 7, 26 n. fetishism 166 Finkelman, P. 37 first principle of justice 160, 166, 228 Fischer, J. M. 137 n. Fitzsimmons, M. 50 n. Fleurbaey, M. 210, 212, 213 formal constraint 59, 61, 62, 64, 65 Formal Principle (Kant) 60, 62, 63, 67, 68 France 42–51 Frankfurt, H. G. 243 Frankfurt (city) 49 fraternity 23, 198 reciprocity and 219–20 free market 82, 83 free riders 189 freedom(s) 161 confined 162 grand 166 important 160 negative 156–9, 163 non-moralized definition of 169 not real 173 property and 6, 163 redistributed 155 restriction of 154, 155, 158, 163, 165, 169, 171 tool-using 162 violating 182 frustration 72 fungibility 98, 99 Gainot, B. 46 n. Garat, Dominique Joseph 46–7

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gender equality 125, 126 generosity 179 n., 180, 186, 187, 188, 191 gift-giving 187, 219 glasnost 4 global public reason 236, 237, 238, 243, 244 goals 137 egalitarian 181 unachievable 199 good 104, 113, 237 ambivalent 191 conceptions of 81, 105 goods 25–6 additional 134, 135, 136, 147 deserved 137 n. equality of opportunity for 143–4 indices of 218 objective 151 partial exemption from redistributive taxation 141–5 responsibility for 131, 132, 134, 135, 136, 140, 142 see also primary (social) goods Grant, G. 10 gratification 36 Great Leap Forward (China 1958–9) 245 Green, T. H. 156 Gre´goire, Abbe´ 48 Gregor, Mary 66–7 grumpy people 75 Guardian, The 188 Gueniffey, P. 40 n., 48, 50, 51 guilt 186 Guizot, Franc¸ois P. G. 49–50 happiness 71, 93 of others 57, 65, 67, 68 Hardin, R. 53 n. hard-luck stories 177, 184, 191 hardship 178 Harsanyi, John 195, 199–206, 210, 212, 220 Hart, H. L. 159, 160, 163, 170 Head Start program (US 1964) 15

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Index

health care 13, 20 n. Heath, J. 189 n. hedonic states 75 hedonistic satisfaction 72 Hegel, G. W. F. 167 Heller, J. 88 heroes and blackguards 137 n. Hershkoff, H. 182, 185 Hinton, T. 25, 28 Hobbes, Thomas 167 Hohfeld, W. N. 89 homelessness 161, 162, 185, 187 homespunness 162, 173 honesty 170, 171 horizontal equity 213, 216 ‘how’ question 151 human development index 218 human rights 7, 226–48 humanity, appeal to 192 Hume, David 171 n. humiliation 184–5, 187 complicity in a relationship of 190 guilt in inflicting 186 self- 185, 188 Hurley, S. L. 6, 132, 133, 134 n., 135 n., 136–7 nn., 140 n., 141 n., 142, 143, 144 hypocrisy 5, 36, 37, 39, 42 near-hysterical 44 strategies and varieties of 51–4 striking example of 38 unmasking and perpetrating 49 hypothetical imperative 56, 57, 58, 60, 61–2 ideological alchemy 40, 41 Ignatieff, M. 192, 231 ignorance 166 impartial observer (IO) 199–201, 204–5, 206 unique preferences for 202 n., 203 impartiality 7, 195, 196, 199, 212, 213 incorrect invocation of 206 justice requires 197, 198

prioritarianism/priority deduced from 216, 218 rule that satisfies 216 impossibility theorem 202, 218 imprudent people 16, 19, 21, 30 incentive inequalities 114, 116, 130–52 choice-dependent 115 legitimacy of 112, 117, 119 objectionable 118 incentive seeking 141 n. incentives 4, 21, 53, 58, 64, 123 a posteriori 63 economic 127 inequality-generating 120 prohibiting payments 116 Rawls’s commitment to 114, 115 special 119 talented people 110, 130 incentives argument 114, 118, 119 inclusion 237, 238, 244 income 12, 150, 208 differences in 13 high(er) 20, 22, 29 inequality of 53 luxuries and 71 market 28 share of 84 undeserved 20 unequal 14, 20 n. see also extra income income assistance 15 income taxation 14, 21, 106, 109 n., 116 n. individual choices 87, 113, 123, 124, 127, 146 diversity of 16 expanded basic structure and 126 fairness of inequalities due to 14 meaningful 81 uncoerced, everyday 125 individual conduct 103–4, 107, 121, 127 judgements concerning the honesty of 170–1 regulated 109, 110, 113

Index individual conduct (cont. ) rules of 105, 107 uncoerced patterns of 122 individualized inequalities 17 criteria for evaluating 29 fairness of 14, 15, 16, 28 criteria for evaluating 29 normative guidance for 18 principled basis for response to 19 welfare state and 30 indolent people 16, 19, 21, 30 inequalities 51 choice-based reply to 130 choices and 18 class 17 clear evidence of 177 deep and pervasive 104 economic 13, 16 empirical explanations of 151 fairness of 21, 29 family wealth 84 income 28, 53, 84 involuntary 23, 24, 25–6 just 110 justified 52, 120, 130 market-based 26, 28 material 27 necessary 110 poverty-involving 152 reducing 12 remedying 181 resources 17 undeserved 28 unjust 28 upbringing and opportunities 13 voluntary 20, 23, 24, 26 n. see also incentive inequalities; individualized inequalities; social inequalities inference(s) 62, 94, 146–7, 199 inferiority 13 inheritance 12, 14, 15 injustice 86, 109, 181 basic 27

259

class stratification 16 fighting 14, 171 performers of 95 severe 151 innocent threats 100, 101 institutions: basic 75, 85, 86, 237 egalitarian 118, 192 just 103, 104, 105, 109, 110, 113 non-coercive 112, 121, 122, 126, 127 political 227 n. property 159 public 16, 20, 21, 22 see also coercive institutions; social institutions insurance 208, 209, 210, 212 private health 20 n. unemployment 15 intellectual power 11 intention-independence 120 intention-relativity 120 interference 156 n., 157, 159, 165 state 154, 155 intrusiveness 78, 79 intuitions 152, 219 moral 172, 173 welfarist and resourcist 217 wrong 221 inviolability 93 invisibility 26 involuntary disadvantage 21, 23, 27, 131n. rightful claim to compensation for 29 irritation 178 Islam 244 Issac Deutscher Memorial Prize 2 Jaure`s, J. 50 Jensen, M. 42 Jeu de Paume oath 46 judgement(s) 73, 74, 242 heavily moralized 24 honesty, about 170–1 intuitive 86 justice 80, 82

260

Index

judgement(s) (cont.) political 231 substantive responsibility 76, 77, 78 Julius, A. J. 108 n., 116 n. just war 88 justice 4, 71, 77, 89, 95, 96, 97, 147–8, 235 acting on 22 allocation rule that implements 197 charity and 179–81, 190 claims to 21 common good conception of 228 common-sense precepts of 82 competing views of 27 demands of 130, 227, 228 desires and 125 determinant of 198 duties of 189–90, 191 egalitarian 4, 86, 87, 179 equality and 70 ethos of 21, 22, 113, 116, 117, 118 impartiality and rationality of 198 individualistic conception of 25 judgements about 80, 82 luck and 131, 142 liberal conception of 83 maximin principle of 151 normative theoretical understanding of 152 objective goods and 142 political obligation and 234 primary subject of, see basic structure prioritarian 198 rights founded on 226, 229, 230, 232 social conception of 25, 26 n. spheres of 25, 26 stunted idea of 27 taxation and 132 workable and defensible conception of 78 see also background justice; distributive justice; fairness; principles of justice; redistributive justice; social justice; theory of justice

justice deficit 91, 93, 94, 96 justification 18, 84, 170, 171, 172 coercion and 124 non-question-begging, libertybased 169 prerogative 119 Kant, Immanuel 5, 56–69, 89, 93, 94, 95, 159, 170, 198, 237 Kaus, M. 26 n. Keyssar, A. 40 Kingston, Ontario 178 King, Martin Luther 241 Kolm, Serge-Christophe 219–20, 223 Kramer, M. 5, 89 n. Kydland, F. 41 Kymlicka, W. 5, 18 n., 20 n. Laclos, C. de 43 laissez-faire doctrine 160, 161 law of contract 106, 109 n. law of peoples 228, 229 lawfulness 66 laws 155, 160, 228, 234 coercive 161, 164 property 163, 164, 166 repressive 158 laws of nature 166 left-liberalism 9–36, 155, 199 leisure activities 28, 86 agreeable 80 sacrificed for extra income 12 trade-off between work and 18 liability 90, 97, 99, 100, 101 liberal egalitarianism 3–4, 18, 21, 26, 27, 28 ethos of 22, 23, 24 institutions of 22 left and 19, 25, 30 objection to 24 liberals/liberalism 3–4, 26 n., 228, 250 arguments for inequality 53 self-declared 9, 10

Index libertarianism 3, 6, 53, 81 n., 154, 155, 156, 157, 159, 166, 169, 172, 173 liberty 44, 81 n., 101, 154, 159–63 denuded conception of 6, 156 licence and 169, 170 massive displacement of 165 moralized and ‘flat’ conceptions of 6, 167–74 natural 82 negative 156 n., 157, 159, 167 restricted 159, 160, 164, 168 see also basic liberties Liddle, R. 188 life chances 27 lifestyles 16, 18 subsidized 19, 22, 29 Lilla, M. 30 limited priority axiom (LP) 215, 216, 217, 218 Lintott, A. 40 Locke, John 172, 231–2, 237 lottery/lotteries 202 birth 199, 205, 208 natural 12, 17, 84 ordinal preferences on 201 wealth 199, 200, 220, 221 Loustalot (journalist) 51 lower-class people 25 luck: advantage and 177 bad 182, 188, 208, 219 differences due to 132 fixed levels 145–6 held constant 134–5, 136–40, 146, 147 justice and 131, 142 luck egalitarianism 6, 18, 24, 137 n., 141 choice exemption interpretation 131, 133–6 Cohen’s version 136, 142 end of 143 general plausibility of 182 humanitarian response that sits ill with 185

261

Hurley’s interpretation 132, 133, 142, 143, 144 implicit commitment of 145 industrious choices 188 retrospective and prospective criterions of 183 Roemer’s version 136, 142, 143 luck-twins 140, 144, 145 choices of 142–3 talented 134 n., 135, 136, 139, 143 untalented 135, 136, 139, 143 lucky gambles 14 luxuries 172 Lynn-Jones, S. M. 227 n. MacIntyre, A. 192 n. Macleod, C. 20 n. Madison, James 37, 40–1, 52–3 Manin, B. 44 n. Maniquet, F. 213 Mansfield, Edward 227 n. Margalit, Avishai 184, 187, 188 marginal taxation 132, 135, 145, 147, 148, 149–50 market economy 122, 124 market value 142, 143 marketable skills 13, 15 marriage 122 Martin, Luther 37, 47 Marx, Karl 2, 41, 52, 238 Marxism 2–3 Marxists 13, 25, 26 n. erstwhile 20 n. mass unemployment 43 matter 58, 67, 68, 69 Maury, Abbe´ 45 n. maximalism 230, 232, 234, 236 maximality 100 maximin principle 135 n., 149, 151, 197, 215 McCarthy era 2 means 66, 142, 143, 143 lack of 166 Mearsheimer, J. 227 n.

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Index

membership 236–9 importance of 244 mentally ill beggars 189 merit 104, 190 and need 182–4 servility as 188 metric component 85, 86, 95 McGill University 2 Michelet, Jules 50 n. ‘midfare’ 80 Miller, D. 19, 25, 28 Miller, S. E. 227 n. Millich, N. A. 161 minimalism 230, 231, 232, 233, 234, 236 minimized justice deficits (MJD) 91, 93, 94, 96 ‘ministerial despotism’ 46 Mirabeau, Honore´ 44, 46 misery 185, 189, 191, 192 misfortune 24, 185 misogynous views 37 money 14, 25, 26 government taking away 15 taking chances with 12 money-giving to beggars 177, 179, 181, 182 public opinion on 187–8 recipient’s prospects 189 stranded foreigners 178, 183, 189, 190, 192 unconditional 188 well-being and 184 see also alms-giving Montesquieu, Charles L. de Secondat 43–4 Montreal 9 moral appraisal 74, 76, 92 moral compass 19 moral demands 179 moral law 65, 66, 67, 68 moral outrage 183 moral parsimony 191 moral psychology 113 moral worth 59, 63–4, 85

rewarding 82, 83 morality 67, 68, 170, 187 means-ends and 66 political 230, 234 moralization 167–74 Moreno-Ternero, J. 203, 212, 215 n. Morris, Gouverneur 38–9, 40, 41, 48, 50 Morris Wincheswsky School 2 motives 57, 63, 64, 66, 104, 110 altruistic 187 mulattos 45 n., 47 multilateral interdependences 92 murder 169 Murphy, L. 108, 109 n., 119 n., 124 mutual benefit 219 mutuality 187 Nagel, T. 108 n., 155 n. Nantes 46 Narveson, J. 157 n. National Rifle Association (USA) 53 natural endowments 12, 13, 17 natural lottery 12, 17, 84 natural rights 231–2, 238 natural talents 12 extra income based on 21 morally arbitrary 28 no extra income justified in virtue of 19 rewarding 14, 19, 22, 28 scarce, financial incentives and 20–1 undeserved 22, 23, 24 Navigation Acts 39 Necker, Jacques 42–3 need thesis 184 neutrality, principle of 201, 202, 203, 206 New College, Oxford 2 New Right 16, 20, 31 New York 42 norms 22, 110, 123, 127 basic structure 106 equal respect 24

Index norms (cont. ) fairness 16 gender equality 126 genuinely egalitarian 126 human rights 237 individual responsibility 16 justice 104, 233, 234 moral 16, 29, 108 n. political 234, 236, 244 psychological 146 violation of 181, 186 Nozick, Robert 3, 53, 73, 81, 82, 83, 93–4, 95, 96, 98, 99, 100, 154, 168 n., 174 n., 179, 199 Ober, J. 52 obligations 76, 77, 78, 231, 237 egalitarian 179–80, 181 egalitarian theories and 177 genuine 228, 239 given by law 244 giving to beggars 183 moral 183 performers of injustice have 95 political 234, 239 reneging on 189 rights as preconditions for fulfilling 244 voluntarily incurred 103 Observer, The 182 Ochs, Phil 9–10 Okin, Susan Moller 7 oligarchy 42 Oneal, J. 227 n. opinions 228 oppression 27, 158 Orwell, G. 185 n. Ostwald, M. 52 Oxford 1, 2, 178 pain 164, 165 Parfit, D. 5, 196 Paris 178, 179, 183, 186, 189 participation 227 equal right to 228, 230, 236, 241

263

paternalism 21, 24, 180 Paterson, William 38 peace 227 Peerage Bill (1719) 41 penniless immigrants 214, 217, 218–19, 220 Pennsylvania 42 perfection(ism) 57, 151 perpetrators 92, 94, 95, 96, 97, 98 Pettit, Philip 158, 159 n. pity 24, 26, 178 pleasure 68, 73, 86 gustatory 80 Pogge, T. 116 n., 151 Pole, J. R. 42, 46 n. political dissent 228 political equality 25, 44, 47 n., 242 denial of 37, 42 political rights 41, 49, 231, 233 mulattos 45 n., 47 women 42 political standing 244, 245 Potter, N. 66 poverty 26, 119, 161–2, 189 abject 151, 152 deep-rooted problems of 180 drug addicts, and 182 humiliation of 184–5, 188 inability and 165–7 systemic causes of 152 practical law 65, 67, 68 praise 137, 138, 139, 191 preference satisfaction 71, 72, 79, 80 preferences 28, 203 class-determined 11 common 207 differing 12 distribution of 206 inequalities due to 29 responsibility for 72–80, 87 variations in talents and 13 see also risk preferences; von Neumann-Morgenstern preferences

264

Index

prejudices 11, 20 utilitarianism and 92 prerogatives 119, 190, 192 agent-centered 120 self-interest 190 n. Prescott, E. 41 primary goods 5, 206 differences in amounts of 196 index of 218 primary social goods 71–2, 78, 80, 86 defence of 85 just distribution of 159 providing a fair share of 77 same shares of 79 principles 65–6 categorical 69 conditioned 67 deontological 58–9, 62 distributive 111 material 58, 63, 64 moral 67, 89, 103, 107 priority 151 rights-generating 94 subjectively practical 68 teleological 58, 59 principles of justice 82, 85, 106, 107, 109–10, 112, 113, 127, 159 egalitarian 125 first 160, 166, 228 institutions and individuals 102–3 role of 111, 124 see also fraternity; impartiality; reciprocity prioritarianism 196, 198, 199, 206, 210, 213, 215, 222 conflict between veil of ignorance and 223 implied 197 limited 204, 216 priority 196, 197, 198, 204, 206 n., 213 limited 215, 216, 217, 218 owed to the worse off 215 resourcist 217 private property 3, 158, 162, 167, 171, 172

defenders of 162, 176 freedom and 154 justified 168, 169, 170 libertarian argument for 173 liberty and 160 privileges 14, 17 economic 23 rhetoric of equality and 51 prodigal son principle 19 production 213 productivity 14, 150 marginal 82 taxes and 151 property rights 11, 154, 165 enforcement of 158 freedom and 157, 162, 167 justified 171 liberty and 160 limited 161 restrictions imposed by 160 see also private property propertylessness 165 voting and 40, 41, 47, 52 protest songs 9–10 prudence 18 Prugnon, L.-P.-G. 50 pseudo-symmetry 187 public standing 26, 27, 29 public utility 37 publicity condition 121 n. punishment 140 retributivist 170 purchasing power 208 Quinney, V. 43 n. Radin, M. J. 167 rape 169 rationality 195, 196, 199 justice characterized by 198 women and 36–7 Ravizza, M. 137 n. Rawls, J. 4, 5, 25, 26 n., 27 n., 53, 70–87, 99 n., 102–28, 163,

Index Rawls (cont. ) 190 n., 195, 196, 206–7, 218, 220, 227, 232 n., 235 see also difference principle; principles of justice; theory of justice reactive attitudes 139 reason 57, 67 common 236 global public 236, 237, 238, 243, 244 reason-responsiveness 133 n., 137 n. reasonableness 198, 235 reciprocity 187, 198 and fraternity 219–20 redistribution 14, 116 n., 154 beneficiaries of 15 demanded 192 egalitarian 184 goods subject to 131 justifying 28 property 155 socialized 180–1 struggles over 29 voluntary matter 179 n. welfare 189 see also wealth redistribution redistributive justice: exemption from 136 responsibility and 131, 132, 142 redistributive taxation 14, 132, 134, 135, 147 exemption from 141–5 Reeve, A. 157, 158 reflective equilibrium 79, 82 regime type 227 n. Reid, J. 42 Reiman, J. 26 n. religion 231 official 228, 233 rentier class 15 representation 195, 196, 233 resilience 170–1, 172 resource allocation 12, 215 axiomatic theory 218 equality of 217

265

path-dependent 219 worse off and 196 respect 92, 93, 178 differential 240 equal 24, 240, 241 fairness and 23 see also self-respect responsibility 5, 236 assumptions about 77–8 attributability as 74, 76, 77 attributive 133 n., 139, 140 claims about 80–5 common 243 costs of choices 5, 14, 18, 28 ends and preferences 72–80 hesitation to endorse clear standards of 19 individual 16, 30, 242 misfortune and 24 moral 29, 133 n., 137, 138, 139, 140 non-regressive, actual sequence, reason-responsiveness conception of 133 n. partial 132, 133, 134, 135, 136–45, 142, 144, 146–7 regressive 145, 146 social 180 social division of 77, 78 substantive 139, 140, 141 responsible choices 6, 134, 135, 144 differential results and 136–41 impossible 146 work and 145–6 reward(s) 152 altruistic motives and 187 effort and 81, 82 greater, talents entitled to 28 indolent or irresponsible citizens 16 moral desert 83 moral legitimacy of 28 productive people 19 undeserved 22, 84 rights 47, 89, 166, 226–48 constitutional 161

266

Index

rights (cont.) deontological view of 92 fundamental 102 just 90, 92, 93, 94, 95 loss of 97 membership and 236–9 moral 88, 90, 91, 99, 140, 231–2 post-perpetration 93, 94, 96, 97, 98 pre-contractual 91 pre-perpetration 93, 94, 96, 97, 98 proprietary 163 respect for 92, 93 responsibilities and 244 side-constraint view of 93, 94 social and economic 231 utilitarianism of 99 n. see also political rights; property rights; violation of rights; voting rights rights-comparability 95–6 risk aversion 202, 204, 206 n., 207, 212 risk isomorphism 202, 203, 205, 206 risk neutrality 203 risk non-isomorphism 204 risk preferences 200, 202, 204–7, 212–13, 221, 222 Robespierre, Maximilien de 44–5, 46, 47, 48–9, 50 Roemer, J. E. 3, 7, 18, 20 n., 131, 134 n., 136–7 nn., 140 n., 142, 143, 144, 196 n., 197 n., 201 n., 202, 203, 204, 210, 212, 215 n., 223 Roman Republic 40, 52 Rosanvallon, P. 47 n., 48, 50 n. Rousseau, J.-J. 241 rule of law 227 n., 228, 245 rules 105, 106, 107 economic 111 egalitarian 197 equal-resource 216, 217 equal-welfare 217 legal 109 n. legally imperative 111 maximin 197

prioritarian 198, 204 property 166 see also allocation rules Russett, B. 227 n. Ryle, Gilbert 2 saints and sinners 137 n. Santo Domingo 43, 44, 46, 46, 47 n. satisfaction: desire 92 governments determine levels of 78 hedonistic 72 preference 71, 72, 79, 80 savings 12, 15 Scanlon, T. M. 5, 74 n., 133 n., 138, 139, 197, 198 Scheffler, S. 6, 24, 25, 26 n., 27, 28, 29, 108 n. Schneewind, Jerome 66 seasonal employment 15 secret ballots 40, 41, 52 self-abnegation 188 self-denigration 186 self-determination 57 see also collective self-determination self-development 192 self-discipline 18 self-interest 6, 17, 53, 125, 119, 120, 195–6, 199, 220 market maximizers 113 unrestricted pursuit of 107 self-manipulation 74 self-ownership 3, 6, 88–101, 199 self-respect 81, 186, 188 begging and 185 injury to 184 Sen, Amartya 91–3, 94, 95, 96, 98, 99 n., 213 n., 218, 227, 229 n., 230 n., 245 ‘separation view’ 108 n. servility 178, 186, 187, 188 sexist family structure 125 Shakespeare, William 191–2

Index shame 23, 26 shameful revelation 23, 24 Shapiro, Ian 27 n. shared standards 85 Shariah 237 sick persons 215 side constraints 93, 94, 99 deontological 98 Sidgwick, Henry 160 n. Simmonds, N. 89 n. Simmons, A. J. 234 n. Singham, S. 42 n. single master principle/theory 113 skepticism 81, 227 n. slavery 5, 37, 38, 39, 40, 47, 165 abolition of 43, 44 brutality of 43 disguised 52 hypocrisy about 42 income from 43 perpetuating 53 principled objection to 44 Snyder, Jack 227 n. social conditions 84 social democrats/social democracy 11, 13, 14, 16, 19, 23, 25, 28 reputation for moral flabbiness 19 ‘social’ conception of justice and 25 strategy and the welfare state 15 social endowment 17 social equality 25, 30, 177, 186 alternative to liberal equality 27 defenders of 26, 27, 28 social hierarchies 29 social inequalities: moral plane from individualized inequalities 16 inherited 13, 14 large and unchosen 16 reducing 11, 14, 15, 16–17, 23 unjust 16 social institutions: aspirations and 113 choice of 104

267

evaluating 163 general and particular claims in regard to 170 just 6, 125 major 102, 103, 104 welfare 179 n. social interactions 146, 190 social justice 107, 191 affirmation of principles of 180 alms-giving and 180 argument for personalizing 181 criteria that involve the ideals of 183–4 goal of 13 individual conduct and 113 personal prerogative and 190 social position 104 social ranks 240 social relationships: egalitarian 27 texture of 25, 26 social status/standing: equal 29 heritable hierarchies of 27 importance of 26 socialism/socialists 12, 13, 18, 161, 162 erstwhile 20 n., 27 great British 11 ideals 189 tradition 19 Socie´te´ des Amis des Noirs 43, 46 n. ‘society of misters’ 25 solidarity 7, 27, 46, 185, 186, 197, 198, 199, 212, 213, 216, 218, 219; see also strong solidarity souls 206–10 Spencer, Herbert 160 n. standards of living 27 status: beggar 188 economic, current 15 equality of 25 public 30 see also social status

268

Index

Steiner, H. 3, 6, 89 n., 90 n. Steiner, H. J. 230 n. stigmatization 23 Strathcona Academy 2 street performers 187 strong solidarity (SSOL) 214, 216, 217, 218, 219, 220 subsidies 16, 29, 30 expensive ways of life 19, 20, 22 justice and 21 lazy or irresponsible citizens 16 no claim of justice to 21 unfair 21 substantive responsibility 76, 77, 78 suffering 178, 185, 191 sufficiency principle 151 suffrage 39, 49 equal rights of 227 female 36 limited 48, 53 property requirements for 40, 42 unrestricted 50 widespread 239, 241 supererogation 190–2 sympathy 188, 205 Sypnowich, C. 6, 11 n., 171 n., 182, 190 n., 191 n., 249 talented choice dilemma 130–3 talents 80, 83, 145, 207 converting wealth into welfare 203 developing 13, 14, 81–2, 84, 85 differentially distributed 28, 210 fair treatment of diversity of 16 inequalities and 12, 14, 16, 29, 84 justification for taxing high-flyers 17 luck and 134 rewarding 14, 19 socially valuable 21 special 14 see also natural talents tastes 74, 77 individuals’ responsibility for 80 offensive 71

preferences and 73 responsibility for 82 see also expensive tastes tautology 91 Tawney, R. H. 11, 13, 14, 15, 16, 26, 29 taxation 38, 39, 50 exemption from 132, 136, 141–7, 148 fixed levels 145–6 inheritance 14, 106, 109 n. luxury 168, 170, 171, 172 public support for 30 see also income taxation; marginal taxation; redistributive taxation taxonomies 58 teleological principles 58, 59 Temkin, L. 26 n., 197 temperaments 12 Thatcher, Margaret 4 theoretical beliefs 36 theory of justice 102, 103, 104, 120, 166, 196, 213 best 23 left 11–17 see also first principle of justice Thomistic natural law theory 237 Thomson, J. J. 191 Titmuss, R. 187 n. tobacco companies 53 Tocqueville, Alexis de 239 toleration 230, 231, 243 commitment to 235 Toronto 178 trust 24 truth 243–4 unacceptable conditions 245 uncertainty 213, 221 underdeveloped countries 179 n. ‘undeserving’ poor 24 unfairness 15, 21, 28 institutionalizing 16 United Nations Development Program (UNDP) 218

Index United States 37–42 Universal Declaration of Human Rights (1948) 230, 232, 237, 238 universal law 56–69 universal suffrage 39, 49 universality 100 unjust practice 125 ‘unlimited self-seekingness’ 111, 112, 113, 118, 128 University College, London 2 untalented people 135, 136, 139, 143, 187 upbringing 9, 13, 23 upper-class people 25 Urbanek, Valentina 232 n. utilitarianism 26 n., 92, 93, 103, 108 n., 113, 170 see also Bentham utility functions 213 interpersonally comparable 211, 221 maximizing 205 von Neumann-Morgenstern preferences (vNM) 199, 200, 203, 207 Vallentyne, Peter 138 n., 139 n., 147 n. values 110, 127 left 23 moral 107 political 236 plurality of 128 primary 98 social 123 trade-offs 155 Van Parijs, P. 18, 20 n., 154 veil of ignorance (VI) 7, 195, 196, 197, 199–210, 220, 222 anti-prioritarian consequences 198 prioritarianism and 223 victimization 187 victims 92, 94, 95, 96, 97, 99, 100, 101 violation of rights 90, 92, 93, 94, 182, 228 preventing 88, 96, 97, 100

269

redressing 88 serious 92, 95 unnullified 98 visibility 123 von Neumann-Morgenstern preferences (vNM) 199, 200, 201, 202, 204, 205, 206, 207, 220 voluntary disadvantage 21 vote-buying 52 voting rights 36, 37, 39, 40, 47, 241 Waldron, Jeremy 6, 156, 161, 169, 171 n., 173, 185, 189 Waltz, K. 227 n. Walzer, Michael 25, 28, 188 n., 235 n. wants 104, 113, 121, 125, 127, 128 Watson, G. 139 weak equity axiom 213 n. wealth 167, 196, 209 allocation of 197, 198, 213 converting/transforming into welfare 21, 203, 204, 207, 212, 215 disabled individuals and 204, 206, 210, 211, 215, 217 equalized 216, 217 extremes of 119 general index of 215, 216 private endowment of 221 share of 84 welfare-equivalent 205 wealth distribution 196, 197, 199–200, 203, 205, 216, 221 equal 201–2 impartial procedure for deciding upon 198 just 212 welfare-producing capacity and 213 worldly 195 wealth redistribution 4, 7, 180, 181, 182, 183, 184, 190 blood donations as a model for 187 n. welfare 75, 143, 154, 202, 209 converting/transforming wealth into 21, 203, 207, 212, 215

270

Index

welfare (cont.) deficits of 131 n. disabled persons and 204, 215, 217 equality of/opportunity for 71, 72 equalized across persons 205 general index of 215, 216 interpersonal comparisons 201, 203, 210, 211, 220, 221 maximization 206 social 177, 179 n., 189 welfare state 14 defending 16, 29, 30 delegitimized 20 disadvantaged and 15 inadequate 190 supplementing 181, 190 sustainability of 15, 16 welfarism 71, 92, 98, 204, 217

well-being 85, 86, 141 n., 184, 192, 201, 204, 215 will 64, 65, 66, 67, 68, 164 Williams, Andrew 120 n., 121 n., 124, 139 n., 144 n. Williams, B. 108 n. Wilson, James 38, 39 Wolff, J. 23, 24 women 36–7, 42 work choice 145–7 workfare 20 n. working class 14, 15, 16 worst-off people 110, 115, 116, 117 n., 197 n. benefiting 118, 130, 132, 146, 148, 149, 150 Zakaria, F. 245