Without Guilt & Justice – An Attack on Distributive Justice

« The Death of Retributive Justice | The Birth of Guilt and Justice »

22

IT REMAINS TO BE SHOWN that distributive justice cannot long survive the death of her Siamese twin. The purpose of this chapter is to hasten her demise. This is no trifling undertaking. Justice has been the heart of traditional morality. Even after the notion that she was the sum of the virtues had been given up, justice did not become merely one of the virtues or nothing but a quality of punishments and distributions. She never lost her old charisma and was still regarded as personifying the objectivity and timelessness of the old morality. In the turbulent flood of human preferences, emotions, and desires, justice was still held to be a rock with precise outlines that defied the ebb and flow of history.

The frightening freedom to choose could be held in bounds as long as there were stable and precise norms. Confronted with a flood of claims, by our fellow men and by our own desires, one could turn to justice and ask her precisely what one owed to each. The death of justice marks the end of the old morality. But it also creates an opening for a new, autonomous morality.

To mount a fatal attack on distributive justice is certainly much harder than to give reasons for clinging to her. Because such an attack ought not to be undertaken lightly, three such reasons should be considered.

The appeal to justice is rhetorically powerful and therefore useful for social reformers. Distributive justice, unlike charity, does not hurt the self-respect of those whom she benefits. And justice seems to be an irreducible principle that cannot be given up without inviting inhumanity.

The last claim is false, as I shall show, and the first two reasons are obviously inconclusive. Many myths and confused notions have their uses, but the question of whether they are true and stand up under critical examination cannot be settled by an appeal to expediency. On the contrary, contentment with confused ideas and misleading myths has bad social consequences that are relevant to the expediency of continued appeals to them. That receiving something good does not hurt one’s self-respect if one is told that justice was done and everybody got what he deserved is true and important. But the very same claim adds further humiliation to the plight of those who received little or nothing. Thus it is precisely the claim that justice has been done that is inhumane – especially if it can be shown that this claim is false.

In the last chapter I defended three theses: (1) punishments can never be just; (2) even if a punishment could be proportionate, it would not follow that it ought to be imposed; (3) the preoccupation with retributive justice is inhumane. The present chapter will be devoted largely to a single thesis: (1.a) except for simplistic cases, distributions can never be just. The counterparts of the other two theses about punishment will be touched on briefly.

This concentration on a single thesis should make it possible to offer a tighter argument that will not only dispatch distributive justice but also drive the last nail into the coffin of retributive justice. Justice, I have said, consists of giving each what he deserves. My aim now is to show that desert is incalculable.

Let me dispose of simplistic cases at the start. Suppose you were grading a true-or-false test. There are a hundred questions, and it is understood that one receives one point for every correct answer. It seems easy to give each the mark that he deserves. On reflection, however, the task of scoring this test does not raise any problems of justice; what it calls for is honesty. If you give a student an eighty even though he got half the answers wrong, you are dishonest. You are saying in effect that he got eighty answers right. Here the appeal to justice can be replaced with an appeal to honesty. We can dispense with justice.

Moreover, there is no scarcity in this case; if nobody made any mistake, everybody would score one hundred. For this reason also, no problem of distributive justice is involved.

Now take a slightly more complicated case. Somebody has provided prize money: $100 for the best score, the money to be divided evenly between all who tie for first place. Now there is an element of scarcity: the money available is limited. Still, no problem of distributive justice or desert arises; what is required is honesty, precisely as in the original example. You determine the scores, and everything follows – as long as you do not stop to ask about desert. Here is a rich, lazy, and rather stupid troublemaker, who announces as the test starts: “This test stinks; I’ll just alternate ‘true,’ ‘false,’ ‘true,’ ‘false,’ all the way down.” And he scores one hundred and gets the first prize, provided you do not ask whether he deserves it and whether this is just.

These two examples are simplistic because the reward and the criteria for winning it are clearly stipulated, and there is only one relevant variable: the number of right answers. Consider the parallel case regarding punishment: if all that is required to get the death penalty is a petty theft, then the child who steals two-pence worth of paint may be said to deserve capital punishment; and when the child is executed, justice is done. But in that case we object that the law is inhumane and the child did not deserve the punishment. It makes good sense to say this even though we cannot say what it did deserve.

If the judge has discretion to fix the penalty, we ask whether what he does in this case accords with custom and precedent. If it does, it does not follow that the punishment is just. As we move away from simplistic cases and face up to choices to which many variables may be relevant, we have to decide which are relevant and how much weight to give to each.

In sum, problems of distributive justice arise when scarce resources are to be distributed among several people in accordance with their deserts. As long as there is water enough for all, no problem of justice arises about water. And if desert is out of the picture, so is justice. But we can never say that justice has been done when a person is punished or when a distribution has been made.

Those who feel very attached to distributive justice may protest that she is not at all the Siamese twin of retributive justice – they may even hold that the two are only distantly related. One such rescue attempt has won a good deal of attention among philosophers, and will be considered a little more fully later: John Rawls’s conception of “Justice as Fairness.” As I mentioned earlier, retributive justice has no place in his A Theory of Justice. In effect, he does not offer a theory of justice; he develops a theory of fairness, and justice and fairness are not the same thing. Fair procedures do not guarantee a just outcome.

In some cases “fair” and “just” are almost synonymous; but each word also has some meanings quite remote from this common area. It is revealing that one of the most characteristic uses of “fair” is in the phrase “fair play”; but it would be such a solecism to speak of “just play” that the sentence “this is just play” can only mean “this is merely play.” Why can play be “fair” but not “just”? Because fairness is pre-eminently a quality of procedures and not of results (if a result is called “fair,” one may wonder whether what is meant is that it is middling), while “just” is pre-eminently a predicate ascribed to results and specifically to what is meted out. “Just,” unlike “fair,” has a note of finality. Thus a trial can be fair but not just. Even if it is fair, the punishment that is imposed may be unjust. The way we proceed to make a distribution can be fair but not just. Even if it is fair, it does not follow that everybody gets his just deserts.

23

It might seem that distributive justice is really unlike retributive justice because the former always involves several people in addition to the distributor, while punishment need involve only one person besides the judge. But an individual might claim a reward simply because it was promised to him, or to anyone at all, solely for fulfilling one condition that he had in fact fulfilled. This case would be strictly parallel to a situation in which a punishment had been promised to a person, or to anyone at all, provided only that he did a certain thing that he had in fact done.

If it should be said in the former case that this situation is somewhat elliptical and that distributive justice in the full-fledged sense does not come into play until more people enter into the picture and the distributor is forced to compare them, exactly the same is true of retributive justice: as soon as there is a dispute, both sides make comparisons with other cases, past and present.

One difference that is genuine is that problems of retributive justice do not depend on scarcity. But this does not seriously affect my claims. That there are differences, we know. Punishments are predicated on the assumption that they are not desired but nevertheless required for some reason; distributions are predicated on the assumption that something is desired but nevertheless in insufficient supply for some reason. In both cases I make the same claim: the good and the evil men receive cannot be said to be deserved.

We can criticize punishments and distributions on moral grounds without invoking the fiction of just punishments and distributions. What matters is that punishments as well as distributions can be cruel and unusual, capricious, utterly at odds with rules announced beforehand, and defended with dishonest claims and arguments. It does not follow that when none of these strictures applies justice has been done. It is easy to imagine specific cases in which many different punishments or distributions would not be open to any such charge, but it would be absurd to call all of them just. If one did call all of them just, a criminal who received any of these “tenable” punishments would be told that justice had been done. But suppose that he received one of the harsher punishments when a lighter one would have been tenable, too. Surely, it would be absurd to claim that justice required it. In precisely the same way, a person who received less than he would have received in another distribution that was also tenable could hardly be told that he had received what he deserved, no more and no less.

The fact that many solutions are untenable is not disturbing because what is untenable can be rejected. But that many mutually incompatible solutions are tenable is felt to be profoundly disturbing because this plurality calls for excruciating choices and engenders decidophobia. Having found a tenable position, people like to rest on their laurels and think of themselves as the children of light. But even if their solution should be superior to past solutions, this does not mean that all who oppose it are either wrong or downright wicked. The opponents’ solutions may be tenable, too, and possibly even superior. How much easier life would be if we could claim that justice demands what we favor!

My concern here is with moral rationalism, but my analysis can be extended beyond ethics. Decidophobes assume that if their position is tenable it must also be true. But it is not enough to go out of one’s way to consider objections to one’s own position; one must also consider alternatives.

It would be simple to make a list of offenses and to defy anyone to say what was the just punishment for each of them: rape, seduction of children, torture, mass murder, espionage, blackmail, embezzlement, fraud. There is really no stopping point because there is no crime at all of which it could be said that those committing it clearly deserve a particular punishment. Similarly, it is quite impossible to say how much income surgeons, lawyers, executives, or miners deserve; or what kind of housing each deserves, or how much free time per day, per week, or per year. It makes no sense to call any particular distribution of such goods among them “just.”

The basic problem regarding both retributive and distributive justice concerns the code: the decisions about how punishments or scarce resources are to be allotted generally. Once these fateful decisions have been made, it is quite possible that some individual cases present no difficult problems at all – if only the code is simple-minded, rigorous, and insensitive. But in such cases it would be obtuse to claim that justice has been done.

Suppose a college can admit only one-fifth of the students applying for admission. (Many Americans believe that this kind of unpleasant competition is a specifically American evil. In fact, this problem is international, and the competition for admission to the University of Tokyo or to the medical school at the University of Teheran is much keener.) It would be preposterous to claim that, say, a thousand, and only a thousand, deserved to be admitted, and that the decision to admit these students, while turning down the rest, was just.

Of course, an objective test, approximating the true-or-false test considered previously, could be made to do the job. The prize would be not $100 but admission: the top thousand would get in. A system rather like that was used in Japan – until the students rebelled against it. The system was certainly neat, but could it be said that justice was done and that everybody got what he deserved?

The problem is clearly what variables are relevant to desert in such cases, and how many of them are measured how accurately by a test like this. Hence scrupulous adherence to the results of an entrance test does not insure that justice is done.

Incidentally, it is revealing that in the case of rewards, too, there are “judges.” The parallel between retributive and distributive justice is very close.

24

What is wrong with the concept of desert? The obvious answer is that it is not clear whether desert should be determined in accordance with ability, need, or merit, or whether all men ought to be treated equally. Instead of immediately examining these traditional notions, I shall first consider seven categories that do not smack of philosophy. The point is not that there are only seven, but seven should suffice to show why one cannot tell in practice what a person deserves.

In many cases some of these seven categories, or at least some of the subheads, would be clearly irrelevant, but it is impossible to restrict desert to only one or two of these categories and to rule out all the others as generally irrelevant. One can say, of course: we choose to disregard them; we concern ourselves with only one. We shall see shortly that even doing that may not enable us at all to say what various members of a group deserve. But in any case, as soon as we do this, others may protest with reason that we have decided, in effect, to ignore what people actually deserve, and that our distribution is therefore unjust.

The first category is what one is. Here one might distinguish what one is by birth and what one is at the time of the distribution. Within each of these subcategories one could then distinguish many subheads. Admittedly, this makes for a rather complex picture, but then the whole point is to bring out how exceedingly and even hopelessly complex the matter is.

Under what one is by birth, it may suffice to mention a few subheads: sex, ethnic group, place of birth, and relationship to the distributor. Treating people differently on account of their sex or ethnic group provides some obvious examples of injustice, but for all that it is far from obvious that these two characteristics are always irrelevant. Some people may feel that they should be; but this is precisely the sort of question that needs to be discussed in specific cases.

Discrimination against outcastes in India and Blacks in the United States provides clear instances of social injustice, but it does not follow that ethnic group is always irrelevant. On the contrary, in India members of the so-called depressed classes are held to deserve preferred treatment in some cases, such as university admissions, and in the sixties the same practice developed in the United States with regard to Blacks. It is sometimes claimed that this is done merely to offset prior disadvantages, but if that were the case, then it would make little sense to apply it only, or almost only, to untouchables in India and to Blacks in the United States. Why not to Poles, dwarfs, and homosexuals? But this is a big and intricate problem, and it should suffice to note that the main reason for offering preferred treatment to one group is surely that a society is desired in which such a large and readily identifiable class should have something like proportional representation in the higher occupations. Hence members of some ethnic groups are admitted even if they do less well in various ways than students with fairer skins who are rejected. It should be obvious how impossible it is to say, no matter what we do, that justice has been done. As a rule, wrong clashes with greater wrong.

Whether a man is a native Londoner should make no difference in any distribution, one might think. But this accident of birth usually determines one’s citizenship and thus also whether one is entitled to the many advantages that accrue to citizens. Relationship to the distributor, finally, is relevant when it comes to inheritances, but not only then. It is generally assumed that a man owes his wife and children something while he is alive, too. The case of the wife brings us to the second subcategory: what one is at the time of distribution. Here one might include – to give a few examples – age, health, and residence. The second category is what one has. Here one might include property, family, and abilities. All three are often relevant when distributions are made.

The third category is what one does – not only at work but also in public life, in one’s family, and on one’s own.

The fourth category, what one needs, has two subcategories: what one needs for oneself; and what one needs for one’s dependents. Both have the same four subheads: for subsistence, for comfort, for a particular project, and for one’s optimal development. The great vagueness of these notions will be considered soon.

The fifth category, what one desires, is ignored in most discussions. This category is clearly relevant in many cases, however, unless we assume that a person often deserves something as a reward although he does not desire it at all.

The sixth category is what one has contracted. If one has received a formal contract or a promise, or even if there is room for debate as to whether there was an implicit promise, this category is clearly relevant. If an employee took a job with the understanding that he would receive a certain salary, or annual raises of $1,000, such commitments cannot be ignored when the money is actually allocated.

Finally, there is the seventh category: what one has done. At least one of the seven should be considered in more detail, and I shall concentrate on this one. Without much trouble, one can subdivide it into seven subcategories, e.g., education, military service, civilian jobs (kinds, length of time, achievements), public services and offices, extracurricular accomplishments (including lives saved or publications and prizes that do not fall under the heading of achievements in one’s job), sufferings (since one may deserve compensation for them), and crimes.

25

Suppose you had to decide about salary raises for five assistant professors, and the sum available were only $3,000. Chances are that in one or two cases a decision must simultaneously be made as to whether to reappoint, promote, or offer a terminal appointment. Some of the points considered above under various categories are clearly irrelevant, while age, abilities, and need might be judged relevant, and promises would certainly have to be taken into account. One might debate which of the seven subcategories under what one has done ought to be considered in this case and how they should be weighted, but the decision is difficult enough even if you confine your attention to a single subhead under one of them: achievements in civilian jobs. To make things still simpler, disregard all jobs except that of being a faculty member and proceed as if it made no difference whatsoever that one is thirty and another fifty; one is a bachelor, while another has nine children; one is a millionaire, another total1y dependent on his salary; one has served the government with rare distinction; another has heroical1y saved twenty lives. If you took all that into account, how could you possibly say in the end that each had got what he deserved?

Even if you try only to assess their achievements in their present profession, a further breakdown is needed. There is (a) teaching; and here you must further distinguish (i) levels and (ii) techniques. Somebody may be very popular at the introductory level but poor in more advanced courses, and impossible as a teacher of graduate students. Another professor may be highly respected by a few graduate students who share his interests, but an almost total loss with underclassmen. Under techniques one might profitably distinguish lecturing, conducting discussions, and supervising independent work.

Then there are (b) publications. It would be naïve to suppose that here we have to deal with only two variables: quantity and quality. In a letter of recommendation for a Fulbright professorship, a dean once wrote about a candidate: “during the past year he has published five times.” This is ridiculous even as a purely quantitative measure. Five short book reviews, each about a page in length, would constitute five items; and a book of seven hundred pages, one. Even so, quantity is one variable that has to be considered, but it is not easy to measure. Counting pages or words would be rather crude. Still, it is possible to distinguish between people who have published nothing, very little, and a lot.

From (i) quantity, you proceed to (ii) levels, meaning much the same as under teaching. That leaves the question of quality. Here you might distinguish (iii) initial reception, such as printed reviews, (iv) actual impact, and (v) probable long-range importance. A book might have met with a glowing reception without ever having had any perceptible impact, not to speak of lasting significance. Other books have entered the world “with doves’ feet,” like some of Nietzsche’s books, or fallen “dead-born from the press,” like David Hume’s Treatise, and eventually have changed our way of thinking.

Teaching and publications are the most obviously relevant achievements in deciding about the five assistant professors. But in the absence of important publications, especially when the question is one of reappointing or promoting an assistant professor or letting him go, one might also consider (c) unpublished research. A book review may get published relatively fast, while a major work may be slow to appear in print; it may be years in the writing; then a publisher may send it to referees who take their time before making recommendations; and after accepting the book, the publisher may still take a year to bring it out. Moreover, it might be better if fewer schools made a fetish of publications; after all, a teacher can write something and show it to his colleagues without adding to the ever growing tidal wave of printed ephemera.

Some journalists who make a living by contributing to this flood complain when a teacher is not reappointed because he has not published anything, that by that criterion Socrates would not have been promoted either, and that teaching is what ought to count. Actually, it is not clear at all how Socrates would have fared if judged as a teacher. After all, he insisted that he could not lecture, and he stubbornly refused to do it. He liked discussion, but one may doubt that he was at his best with students. Other less distinguished cases come to mind and lead us to consider (d) discussion with colleagues. Being very good at that is not a sufficient reason for promotion, but it has to be considered.

Finally, there is (e) administrative work. Such work is often overestimated but not altogether irrelevant.

Enough has been said to show how impossible it is to tell what people deserve, and it is absurd to say when one individual gets $1,000; two, $750; one, $500; and one gets nothing, that justice has been done. Of course, if one thinks in black and white and reduces an essentially pluralistic situation to a dualistic model, stripping away a multitude of possibilities and eliminating all but one candidate, one can ask imperiously: does this man deserve a $1,000 raise or not? It is all or nothing, and the need for a yes or no answer may then seem plausible, depending on the facts of the case.

My illustration involves five candidates, but actually many prior decisions are required. How much money should be made available for salary raises throughout the university, at the expense of scholarships for needy students, new academic programs, library acquisitions, and all sorts of other purposes? How much of that money should be allocated to the department in which the five professors are teaching? And how much of that sum should be set aside for assistant professors? Nobody who is aware of all these complexities will be tempted to say that any distribution that one could imagine could lay claim to being just. In practice, there are strategies for usually reaching agreement without much debate. Rule I: submit a specific proposal to those who have to vote on the decision. This is essential. Rule 2: discourage the consideration of alternatives. There are many ways of doing this, but old hands realize that such consideration could be endless and therefore tend to go along with the initial proposal, provided that it is not blatantly capricious. Rule 3: discourage general discussion of norms. It is far easier to reach agreement on five candidates than it is to agree in principle on the weight that should be given to various factors. Let nobody suppose that the case considered here is so difficult because it concerns a specific distribution rather than the code. On the contrary, the question of agreement on a code is much more important and intractable.

26

My scheme of seven categories with a great many subcategories may seem to be needlessly complex. Might it not be sufficient to invoke only needs and merits?

The case of the assistant professors shows how, even if one confined oneself to merits, one would still be quite unable to determine how much each person deserves. Thus my thesis is not reducible to the claim, however true, that merits and needs often conflict. Moreover, my scheme brings out many points that cannot be reduced to needs or merits but that are quite often crucial for decisions about distribution.

Another illustration may help. When it comes to the right to vote, no community could possibly consider merit alone relevant. Age and citizenship and often also place of residence are considered crucial in almost all societies, and membership in the community – that is, citizenship or residence or both – must be required because otherwise the system could not be made to work.

Second, even if one considered merit all-important within these restrictions, there is such a crisscross of merits that one might well despair of the possibility of devising any workable system based on merit. It might be the lesser evil to give the vote to every citizen who is, say, at least eighteen.

The objection to giving no vote to those who had not graduated from primary school, one vote to those who had, two votes to high-school graduates, three votes to college graduates, and four to those with a Ph.D., an M.D., or a law degree, is not so much that this would be making too much of merit; it is rather that it would come nowhere near an accurate reflection of men’s merits. Vast numbers of people who have not graduated from college are incomparably more intelligent and better informed, not to speak of other merits, than millions who have. It is fatuous to assume that all members of one group – say, all college graduates without a doctorate – are equal. It might be more to the point to require all who want to vote to take a public-affairs test. But a high score on such a test would be another highly dubious way of measuring merit.

Finally, the vote is not a reward for merit but a means of preventing various evils. The crucial question about various requirements for the vote is not how these requirements are related to the past of the potential voters but rather what their effects will be and what kind of a society we are likely to get as a result.

It is also impossible to measure need. I have already distinguished eight points that would have to be considered: what one needs for subsistence, for comfort, for some project, and for one’s optimal development – for oneself and then also for one’s dependents. Some people, of course, have no dependents, but others have a great many dependents, leading to many additional complications.

On reflection, the four key terms are utterly unclear. What is literally needed for subsistence is so pitifully little that it is generally understood that this is not what is meant, but what is meant is not understood.

Comfort involves a crucial subjective component. Once one. is used to certain things – cigarettes, television, so many meals a day, such and such furniture, a car or perhaps several cars in” the family, plumbing, possibly even three full bathrooms, two-day weekends, a month where it is warm in the winter, a three-months’ summer vacation, or a forty-hour work week – one is more than apt to be uncomfortable without these things. It is therefore quite possible to make every member of a large group comfortable while the distribution of goods is quite unequal, and people with fewer needs and goods may be more comfortable than some who have far more goods but “needs” that outstrip their possessions. Needs are not fixed data but can be created, cultivated, and – though this is much more difficult – diminished and even eliminated.

What is “needed” for a project is often far from clear; foundations are frequently persuaded that extremely questionable needs are authentic, and often they assume that the significance of a project is proportionate to the claimed need for money. This widespread assumption is obviously silly. Moreover, does not justice require a weighing of the needs for the completion of various projects and a comparative ranking of how much each project is needed? No matter how a large sum is divided between cancer research, pollution control, aid to the poor, various projects in the arts, scholarship funds, and aid to people starving abroad, it would be obtuse to claim that justice had been done.

If you want to give each enough for his optimal development, how do you determine what he needs for that? To answer this question and to decide how much various projects are needed requires a decision about goals – an idea or vision of man and society as one should like them to be.

Ultimately, every attempt to spell out a material conception of justice involves a decision about the kind of society we want. It requires a decision about goals and standards. But the moral rationalist takes his standards for granted and refuses to consider alternatives.

27

It may seem as if one conception of justice did not involve difficult value judgments. Some people would disregard differences in merit and need, insisting that justice demands absolute equality.

Does this mean that one should give each the same, regardless not only of his needs and desires, his merits, and his ability to make use of what he is given, but also of what he already has? (Call this notion of equality E 1). If food is distributed, for example, is it just to give equal amounts to those who have plenty and those who have nothing? If this suggestion were rejected as palpably unjust, need would be introduced. But it might still be argued that absolute equality really means that all should be equal after the distribution has been made, or at least as nearly equal as the distribution can make them. In that case, those who have would receive nothing till all have-nots had received as much as they have (E 2).

Although this system is not followed in any civilized country anywhere, it has some plausibility when the goods at stake are food or vaccinations, but hardly any when the goods are books, violins, canvas boards, insulin, offices, or honors. Different criteria are appropriate for different kinds of goods. Some things may reasonably be distributed in accordance with people’s merits, others with their abilities, still others with their needs, without being open to the charge that the distribution has been unjust in principle.

In short, E 1 is so absurd that one can understand it only as a counsel of despair, a way of saying that no better system can be made to work. E 2 is also absurd if it is applied to all things that are to be distributed. To mention only one further objection to E 2: in that case no incentives would remain.

If food, lodging, and money were to be distributed in accordance with this plan, sufficient nonmaterial incentives might remain. It would not be too difficult to imbue a society with an ethos in which rank and honors would provide enough incentives for performance, while material goods were distributed almost equally. But in a highly merit-conscious society, like that pictured in the Iliad, nonmaterial inequalities are felt so deeply that they might make for more unhappiness than most material inequalities in our society. In any case, inequalities in the distribution of some goods, material or otherwise, are necessary as an incentive. Without it, some jobs will not get done, unless we abolish a great deal of personal freedom.

It is only in a situation in which no relevant differences exist among the individuals concerned that an equal distribution could reasonably be called just. Dividing eight apples among eight children at the end of a party at which all have had plenty to eat might be a case in point. But suppose that some of the children are much too full by now to eat the apple right away and will take it home to a house in which apples and other kinds of food are plentiful, while other children are about to return to their hungry brothers and sisters: then even this case supports the thesis that distributions can never be just.

This example does not depend on some prior social injustice. All that is required is some relevant inequality, say, that some children need to eat more than others, or that some are allergic to apples, or that some are allergic to other foods but not to apples. An equal distribution is no guarantee of justice.

When the appeal to equality fails, it is customary to fall back on equality of opportunity. But equality of opportunity is unobtainable. People are born with radically unequal opportunities. Their health, constitution, talents, and capacities are widely different.

We could come closer to equality of opportunity by outlawing random breeding. Allowing only the most favored specimens to beget children would, paradoxically, give them a vital opportunity denied to the vast majority. One could permit sexual intercourse as now, while restricting impregnation to artificial insemination, and people would not have to be told who were the fathers of the children born under this system. Even then some women would have the opportunity – or perhaps the duty – to give birth again and again, while most women would be denied this opportunity or excused from this obligation. In such a society millions could have a single father. But brothers and sisters, and even more so half-brothers and half-sisters, often differ widely in health, constitutions, talents, and capacities. Only cloning could really produce equality of opportunity at birth – if one made all people almost literally equal; but presumably, one would prefer at least two models: one female, one male.

If all these schemes strike you as so many nightmares, you do not really favor equality of opportunity. Such schemes would involve an incalculable loss in genes; a vast fund of potential talents and capacities would be lost to mankind forever. And family life as we know it would cease.

The abolition of the family has to be countenanced by anyone who seriously favors equality of opportunity. The schemes considered here would be rather pointless if the inequalities of being brought up in different families were continued as now. But even if one opposes these schemes, the abolition of the family is certainly a minimal prerequisite for equality of opportunity.

Environment during the preschool years remains decisive for one’s character, intelligence, and whole development. This is not only a Freudian tenet, but recent work by child psychologists confirms conclusively how much intelligence depends on the mother’s attitude toward the infant, on her encouragement or detachment. Children from utterly different backgrounds plainly do not have equality of opportunity.

The notion that integrated schools provide equality of opportunity for all is untenable as long as children live in widely different homes. And it is downright ridiculous as long as teachers do little real teaching, assign a great deal of homework, and expect the parents to help with the homework and explain what is not clear.

The abolition of the family structure is wholly feasible, and the communal nurseries of some Israeli kibbutzim have proven beyond any doubt that such a system can be made to work well and need not at all be lacking in human warmth. Some of the kibbutzim have gone far toward equality of opportunity, but no more than about 4 percent of Israelis choose to live in kibbutzim, and the figure remains remarkably constant.

Equality of opportunity also involves some reduction in opportunities. Wherever equality is held to be crucial, some leveling is inevitable. It is told that Alexander the Great was offered a drink of water on a hot day when he and his army had gone without any water for a long time, and that, seeing that there was not enough water for all, he refused the offer and spilled the water into the sand. If every opportunity that cannot be offered to all is refused and goes to waste, few opportunities can be accepted.

People neither desire nor are able to make use of the same opportunities. To deny a man opportunities that he desires and could put to use simply because many others do not wish for the same opportunities would be pernicious.

In any case, what is equality of opportunity? At what stage in their lives are people supposed to have it? If they are to have it always, we must rigidly control their lives from birth to death, in order to make sure that they do not make choices that will deprive them of various opportunities. Granted freedom, people make different choices, learn different things, acquire different skills and habits, run different risks and sometimes pay the price, tie themselves down in various ways, and before long have very different opportunities. There is thus a tension between freedom and equality of opportunity, and we should not do everything we can to bring about the latter.

Those who claim to be for equality of opportunity do not advocate measures that would really promote less inequality of opportunity at birth than we now have. They are not mainly concerned about the time of birth. If equality of opportunity is wanted, but neither at birth, or not only at birth, nor always, some time when people are supposed to have it must be specified. This might be the age when children first attend school, say, at five. If so, it would be indispensable to provide the same controlled environment for all youngsters, giving a centralized authority the power and the means to bring up all children communally in just the same way. Extreme egalitarians might even wish to stifle all expressions of originality and individuality.

If one then gave each child the green light at the age of five, it could be claimed that at that point all children had equal opportunities. But even this would be no guarantee against gross inequalities a few years later.

Equality of opportunity is a slogan, and those who employ it are not really in favor of the means required to bring it about. Men are not equal. Men should not be made equal. And equality of opportunity is either a hollow cliché or a pernicious goal.

(In the Far East the phrase is associated with the open-door policy in China and considered odious. The French phrase la carriere ouverte aux talents is unobjectionable – and does not invoke the myth of equality.)

My claim that men are not equal and that equality is a myth does not entail any bigotry. On the contrary, bigots assume that all Jews are equal – or all Negroes, Germans, or women. My point is that no two men or women are alike. Some statistical generalizations about these groups are well founded, but they do not indicate that all members of the group are alike, and I am far from suggesting that distributions, any more than punishments, should be guided by such generalizations. All men and women are brothers and sisters, and each should be considered as an individual. Giving the same to all is not particularly reasonable, seeing that they are not alike, do not have the same desires, and cannot all use the same things or opportunities.

28

When the appeal to merit, needs, equality, and even equality of opportunity breaks down, the champions of distributive justice abandon material conceptions of justice that specify what should be given to each, and fall back on a formal conception of justice: they say that justice consists of treating like cases alike.

This popular claim is actually false. Treating like cases alike is merely a necessary but not a sufficient condition of what is meant by justice. When this condition is not fulfilled, one speaks of injustice, whether it is a case of punishment or distribution. But when this condition is fulfilled one may still speak of injustice, as, for example, when all nine-year-old children are put to death if they steal two-pence-worth of paint.

Moreover, no two cases are alike. No two students applying for admission are alike any more than two candidates for an increase in salary. To avoid “injustice,” one must ignore irrelevant differences and base decisions on relevant likenesses and unlikenesses, and even then one still needs a sense of proportion.

The demand for justice has three parts. It is, first, the demand for reasons for unequal treatment. If one person is treated better than several others, one wants to be shown how his case is different from the others, and one desires a rational account – meaning an explanation and defense – of the relevance of the differences. If no relevant differences can be pointed out, one feels that wrong has been done. This part of the demand for justice is closely related to the demand for honesty, assuming that honesty involves being scrupulous and not merely telling no lies.

The second part of the demand for justice poses more serious difficulties. Having discovered a vast crisscross of more or less relevant differences between people, one has to decide on the weight to be assigned to each factor. Here both the precision and the objectivity that are widely associated with justice come to grief. Even where reasonable people can agree that one difference should be weighed more heavily than another, any precise assignment of weights is bound to be more or less arbitrary. (If this should seem unduly abstract, recall the case of the assistant professors, in section 25.) Moreover, reasonable people will differ frequently even about the relative weight of various factors (for example, what weights should be given to popularity with freshmen, to an interesting but difficult article in a journal, and to efficiency in an administrative job). Here personal preferences enter into the picture – preferences that need not be at all selfish. The best one can do – but if one wants to reach speedy agreement with others on a practical decision (say, about the distribution of a sum of money among five candidates), the worst one can do – is to bring these preferences out into the open, to state them honestly, and to consider objections and alternatives. This is the last thing a decidophobe would want to do, and the notion that justice is objective and precise is reassuring because it suggests that nothing of the sort is called for.

The third part of the demand for justice is the demand that what is meted out, whether penalties or rewards, should be proportioned to the relevant differences between individuals. I have shown that this is impossible in the case of punishments, notwithstanding valiant attempts by brilliant men, like Kant and Jefferson. It is also impossible to proportion rewards, whether financial or not, to the relevant differences among people. This becomes obvious as soon as one tries to construct a code.

The nature of rationality and the extent to which honesty can replace justice will be discussed in the chapter on “The New Integrity.” For the present, it is sufficient to note that what is felt to be outrageous in cases of palpable “injustice” is usually dishonesty. The Scottsboro trial as well as any number of other trials in which it is notorious that injustice was done involved obvious perjury: the court accepted testimony that was plainly dishonest. But unlike some partisans of justice, I am far from considering one virtue the be-all and end-all of morality. Later, I shall argue for several virtues.

This explains the counterpart of my second thesis about retributive justice: Even if a distribution could be proportionate, it would not follow that it ought to be imposed. This is obvious if justice is not the only cardinal virtue. If there are other virtues besides justice, then this thesis is clearly true, unless it is assumed that injustice takes precedence over all other evils. Some decidophobes prefer the tyranny of one virtue that relieves them of the necessity to weigh conflicting considerations. If there are several norms, it is clear that a higher score according to one of them does not automatically settle disputed questions; it might be offset by a much lower score on several other standards. In my code, moreover, not only are there several virtues but justice is not even one of them.

This is also the place for the counterpart of my third and last thesis about retributive justice: the preoccupation with distributive justice is misguided and unfruitful. There are at least two reasons for this. First, if there are other standards we might well be better advised to pay more heed to them. Secondly, the concern with desert looks to the past, but it is more fruitful to consider the future. This is true not only of the right to vote but also – to refer to just one other example – of the distribution of college admissions. The counsel to be just and admit those who deserve admission is not only unhelpful because it is unclear how desert should be computed, it is also misguided because admissions, like the vote, are not mainly a reward for past performance but an opportunity to do something in the future. But as soon as promise is taken into account – and it would be foolish indeed to ignore it – one transcends the preoccupation with desert and justice. Now the question becomes rather: how should one determine promise? And then also: promise of what? The first of these questions is difficult to answer, but at least different answers can be tested by observing the results. If it is claimed, for example, that a student’s score on a particular test or his grades in science courses at some secondary school show promise in scientific work, one can study the correlation between these indicators and work actually done after admission. The second question – promise of what? – poses the problem of goals. How much weight should be given to promise of this rather than of that? What kind of men and women do we want to accept, to educate, to graduate? What kind of a society is desirable? The decidophobe would rather avoid such questions of goals, and he often does it by concentrating on justice.

Many cases of “injustice” are reducible to the simple fact that one set of criteria was announced while another was used when the distribution was actually made. Thus color or sex may not have been among the criteria proclaimed publicly but nevertheless crucial when the decision was made. In such cases, injustice consists of dishonesty. But even when the decision-makers adhere to the standards announced in the first place, they may still be inhumane or capricious because the standards themselves are objectionable. This is like the case in which the penal law is “unjust.”

The norms invoked in distributions can be morally objectionable in two ways. First, they may be arbitrary, being irrelevant to one’s stated goals. The standards applied openly to justify favored treatment for certain groups may bear no rational relation to the avowed purpose of the institution to which they are admitted. In that case the appeal to justice can once again be replaced by an appeal to honesty.

Second, standards may be well designed to implement social goals, but the goals themselves may be objectionable. They may, for example, include male supremacy. Many disputes about justice, including some of the more troublesome questions about college admissions, are ultimately disputes about different visions of society and the future one desires for humanity. Since it is so difficult to weigh the pros and cons of different goals and visions, decidophobes prefer moral rationalism or moral irrationalism. The strategies used by the irrationalists have been considered at length in chapter 1. Typically, reason is ruled out of court and one appeals to some authority, or one begins as an extreme subjectivist but then ends up with exegetical thinking. Moral rationalists, on the other hand, usually appeal to justice. If only one way of proportioning punishments to crimes, or one way of distributing resources, or one vision of society could be shown to be just, then a thousand complexities would vanish at one blow, and the decision that needs to be made would become so simple that it would practically make itself.

29

When all the traditional interpretations of the appeal to justice fail, it is time to develop an autonomous morality. But as a last resort, some people would rather reinterpret justice. One such attempt has been so widely discussed among philosophers in recent years that no extended critique of justice can simply ignore it: the theory presented by John Rawls, first in some articles and eventually in his book A Theory of Justice. In the present context I cannot hope to “do justice” to these articles or to a six-hundred-page book. Still, something needs to be said here about this last resort to moral rationalism.

I have already pointed out that the omission of retributive justice is a serious flaw, that Rawls really offers a theory of fairness, and that justice and fairness are not identical. My remaining comments will be equally macroscopic: this is not the place for microscopic criticism.

Rawls stands in the tradition, pioneered by David Hume, that considers it the main problem of justice to neutralize what I shall call “grabbiness” and to achieve impartiality. But this Humean conception of justice as more or less the antonym of grabbiness is misguided. Not only does it keep Hume as well as Rawls from dealing adequately with punishment; it also entails Hume’s false claim: “If every one had the same affection and tender regard for everyone as for himself, justice and injustice would be equally unknown among mankind.” This is false even in regard to distributive justice. “Encrease to a sufficient degree the benevolence of man,” says Hume, “and you render justice useless.” For Hume the problem of justice is to neutralize “the selfishness and confin’d generosity of men.” In effect, Rawls accepts this view. But if it were tenable, all we should need would be impartial judges; and I have tried to show in the examples of college admissions and salary raises how such judges would not find that one solution was the right and rational one. And if all of the candidates were utterly unselfish, that still would not solve the problem.

Consider a simpler illustration. Imagine a father with several children. His benevolence and generosity are boundless, and his children are no less benevolent. Each says: Never mind me; think only of the others! He would still confront problems of distributive justice. Rawls would pass the buck to the children, asking them to place themselves in what he calls “the original position,” meaning a position in which a “veil of ignorance” keeps one from knowing his own talents and position in society. The principles people would choose then, assuming that each sought the maximum advantage for himself, would be “fair” and “just.” This basic idea is worked out in Gothic-scholastic detail, and it is easy to lose sight of the moral rationalism of the whole theory: “rational prudence” can determine what ought to be done and what would constitute a just society; some knowledge of mathematics is required, perhaps even a course in game theory, but no tragic choices. “We should strive for a kind of moral geometry.”

The untenable optimism with which this whole theory of justice stands or falls finds expression in the frequently reiterated claim that if one is rational one can find a distribution that will be “to everyone’s advantage,” while “Injustice, then, is simply inequalities that are not to the benefit of all.”

Mo-tze, a Chinese contemporary of Socrates, argued that “confin’d generosity” or “partiality” was the cause of the world’s “major calamities,” and attacked the arts from this point of view. “To have music is wrong,” said he, because the money spent for music could be used instead to help the poor. In our time, Sartre has often said that writing philosophy while children are starving is wrong. This has not kept him from writing a vast critical study of Flaubert, a novelist whom he dislikes. But the problem is very urgent and transcends Sartre and Mo-tze. How could we possibly decide by transposing ourselves into “the original position” what policy regarding the arts and humanities would be “to everyone’s advantage”? Rawls ignores concrete problem of this kind, but I should say: If having music involved “inequalities that are not to the benefit of all” and thus an injustice according to Rawls’s definition, we ought to have music anyway. My position requires no more than at least one other norm besides justice, and it allows for a possible conflict of norms or goals, which is anathema to the moral rationalist.

The whole third and last part of Rawls’s book is called “Ends,” but he does not consider alternative goals and possible conflicts. He discusses at great length what is involved in developing a “rational life plan,” and makes this terse but telling concession in a footnote:

For simplicity I assume that there is one and only one plan that would be chosen, and not several (or many) between which the agent would be indifferent, or whatever. Thus I speak throughout of the plan that would be adopted with deliberative rationality.

Here “simplicity” and “whatever” trivialize the crucial refusal to consider alternatives.

In making a life plan, the aim is again to satisfy all claims.

Suppose that we are planning a trip and have to decide whether to go to Rome or Paris. It seems impossible to visit both. If on reflection it is clear that we can do everything in Paris that we want to do in Rome, and some other things as well, then we should go to Paris.

Obviously. But as a matter of fact we cannot do everything in Paris that we want to do in Rome. We cannot satisfy all claims.

Anyone who is not afraid of facing up to alternatives must decide between conflicting goals. A student cannot do with mathematics what he could do with law or medicine or French. Nor is there any just distribution of time, energies, or money between fighting cancer, fighting hunger, fighting bigotry, or studying music or anthropology. Nor can the allotment of space to the critique of a book be correct. My comments are bound to seem skimpy to some who have read A Theory of Justice and lengthy to some who have not. One simply cannot satisfy all claims.

One final criticism: Rawls says, “To say that a certain conception of justice would be chosen in the original position is equivalent to saying that rational deliberation satisfying certain conditions and restrictions would reach a certain conclusion.” But three pages later he says, “We want to define the original position so that we can get the desired solution.” (This passage does not stand alone.) Here the strategy of moral rationalism parallels that of exegetical thinking. Reason is considered authoritative, but the cards are stacked to make sure that reason will deliver the desired verdict. The moral rationalist reveres justice as transcending preferences – but makes sure that her verdicts accord with his preferences. Thus he sees to it that his own moral ideas come back to him endowed with authority.

30

One of the central fallacies in the liberal faith is the sweet assumption that distributive justice involves only rewards, and that there is no reason why society should not be able to make everybody happy. The same conceit underlies most talk of a “just peace.” In fact, problems of distributive justice do not arise unless something that is desired by many is too scarce to satisfy all. This means in practice that it is possible to disappoint all, but usually impossible to please all. Even if everybody should be pleased, it would not follow that each got what he deserved; it might mean merely that the selfish were rewarded while the unselfish, who take delight in the good fortune of others, were not.

Even when the decision about distribution is the same, it makes a difference whether we tell those who are not admitted or promoted that justice has been done, or whether we realize how absurd such a claim would be. In the latter case we might say: “These were our criteria, which are obviously debatable. In time we shall probably revise them. Meanwhile we have done our best, first to make them known in advance and then to stick by them without being swayed by considerations of very doubtful relevance. We know from experience that even so we make mistakes at that level, too, but we tried hard to avoid them.” To speak that way instead of claiming that justice was done is more honest and loving, more humane, and more mindful of the self-respect of those whom we disappoint.

It should be clear that what I object to is not so much the continued use of the words ”’just” and “justice” as it is a way of thinking that affects the way people behave. One can always redefine old words in such ways that the new concepts are no longer open to the old objections. In my books on religion I have shown how many theologians are virtuosos in this art. But the result, if not the purpose, of this practice is that the new concept carries the emotional charge and something of the moral authority of the old term, and does this illicitly. Invocations of justice help to blind a moral agent to the full range of his choices. Thus they keep people from realizing the extent of their autonomy.

Some individuals can manage to use the old words while realizing very clearly how precisely they are using them, and their autonomy may not suffer. But for every person who brings off this feat, there are likely to be a hundred who are kept from understanding their autonomy. Hence it is far better to make a clean break.

The following consideration may help to support this suggestion. We can point to examples of love and honesty, courage and humanity. We do not know in the same way what justice is, as a quality of punishments and distributions. We cannot point to concrete examples. Solomon’s celebrated judgment illustrates his legendary wisdom rather than his justice. What made his judgment so remarkable was that he managed to get at the facts; he found out which woman was the mother of the child that two women had claimed was theirs. Still, this may seem to be a clear instance of a just distribution. But if that were really so, then it would not take a Solomon to make just distributions in cases where the facts are easier to come by. When something is mine and you take it away, anyone who is called in to arbitrate and gives it back to me might then be said to have made a just distribution: I deserved it because it was mine.

In the last chapter I noted that restoration – giving back what one has taken illegally – is not an instance of punishment. It is not an instance of distribution either. I have concentrated on: punishment and distribution and see no need now to go on to discuss restitution; cases of that sort provide no guidance for the many more important cases considered here.

Indeed, Bertolt Brecht’s version of Solomon’s case, in The Caucasian Chalk Circle, which is based on a Chinese play, suggests that the mechanical application of the view that restitution is right simply ignores the problem of desert, and hence of justice. In the Bible the real mother is also more loving. In Brecht’s play she is merely possessive and has no deep affection for the child, while the other woman does, and Brecht argues that the child should be given to the woman who will take good care of it – and the land to those who will make it flower and bear fruit.

Is that a model of a just distribution? Again it would be more accurate to call the judgment of Brecht’s judge wise and humane. It is future oriented and considers the past solely as a harbinger of the future.

In great international disputes there is ample disagreement among nations not only about facts, including events of the recent past, but also about principles. They may be in favor of restitution but cannot agree about the time – the day, month, and year – of the status quo ante that is to be restored. Nor are nations that favor restitution in one case likely to agree to it, even in principle, in several others. They may favor Brecht’s principle where it would favor them, but reject it where it would not.

Continual talk of a “just peace” is not merely unproductive but positively harmful. Just solutions are unattainable and cannot even be imagined. Hence one can go on talking about justice and a just peace without committing oneself to anything; and while holding out for a “just peace” one usually feels that until one gets what one demands one is entitled to go on waging a “just war” – or to keep threatening another war soon.

The popular notion that we need to cling to justice because it is definite, clear, and objective, is false. Humanity would gain if we declared a moratorium on the use of “just” and “justice” while giving a high priority to the fight against brutality and dishonesty.

When the United Nations was founded after World War II, it was widely felt to be the last best hope on earth. But it has failed to live up to its promise. If it should perish, it might well be of too much talk about justice, too much indifference to brutality, and too little concern with high standards of honesty.

The moralistic cant of so many politicians has persuaded growing numbers of people that moral principles simply have no application in international politics. In fact, the preoccupation with justice is as ill advised here as it is elsewhere, but the concern to minimize brutality and dishonesty is as relevant as it is in other areas.

We know neither God nor the devil; we are beset by an endless number of devils – “No worst, there is none.” To fight evil without the illusion that it is the greatest ever, to choose the lesser evil without the faith that it is surely the least evil, to endure darkness without the boast that none could be blacker, and to create more light without the comfort of excessive hopes – that requires courage and autonomy.

« The Death of Retributive Justice | The Birth of Guilt and Justice »

Advertisements