Scheffler on Rawls, Justice, and Desert

Scheffler on Rawls, Justice, and DesertAuthor(s): Eugene MillsSource: Law and Philosophy, Vol. 23, No. 3 (May, 2004), pp. 261-272Published by: SpringerStable URL: http://www.jstor.org/stable/4150553 .

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EUGENE MILLS

SCHEFFLER ON RAWLS, JUSTICE, AND DESERT

(Accepted 10 October 2003)

INTRODUCTION

What determines the justice of distribution and of retribution? Most philosophers read John Rawls as holding, in A Theory of Justice,1 that distributive justice flows from just institutions, and hence that it cannot depend on any pre-institutional notion of moral desert (or of moral worth on which such desert would be based). The arguments that apparently underlie this Rawlsian claim seem gener- alizable to retributive justice as well, leading many philosophers to read Rawls as denying that there is any pre-institutional moral desert whatsoever.2

This reading sits uncomfortably with Rawls's brief remarks on retributive justice. For those remarks clearly express the view that retributive justice is constrained by pre-institutional moral worth. Rawls says:

[A] propensity to commit [acts proscribed by legal statutes] is a mark of bad character, and in a just society legal punishments will only fall upon those who display these faults.

It is clear that the distribution of economic and social advantages is entirely different. These arrangements are not the converse, so to speak, of the criminal law, so that just as the one punishes certain offenses, the other rewards moral worth.3

Samuel Scheffler offers a reinterpretation and a limited defense of Rawls's view that moral worth constrains retributive but not distributive justice.4 First, Scheffler argues that Rawls is best interpreted as holding not that there is no pre-institutional desert but

1 Rawls 1971. 2 See, for example, Sandel 1982, p. 88; Sher 1987, p. 20; Zaitchik 1977, p. 371.

3 Rawls 1971, p. 315. 4 Scheffler 2000.

Law and Philosophy 23: 261-272, 2004. 0 2004 Kluwer Academic Publishers. Printed in the Netherlands.



262 EUGENE MILLS

rather that there is no prejusticial desert - "no legitimate notion of desert that is prior to and independent of the principles of distributive justice themselves."5

I defer to Scheffler on this interpretive point, subject to a crucial qualification. Scheffler goes on to attribute to Rawls an embrace of "The Liberal Theory," which includes "a rejection of prejusticial desert in the context of distributive justice, and an acceptance of prejusticial desert in the retributive context."6 The acceptance is an allowance that the punishments wrongdoers should receive are constrained by what they prejusticially deserve. Hence the acceptance commits Liberal Theorists, trivially, to the existence of a prejusticial notion of desert: it is a notion that constrains retributive justice independently of principles of distributive justice. The "rejection of prejusticial desert" that completes the Liberal Theory thus cannot coherently be the claim that "no legitimate notion of desert that is prior to and independent of the principles of distributive justice themselves" exists. It must instead be the claim that while there is at least one such notion, no notion of this sort constrains distributive justice: people's proper shares of distributive goods are not constrained by what they prejusticially deserve. With this interpretive qualification, I accept for present purposes Scheffler's interpretation of Rawls. I am less interested here in whether the views that Scheffler attributes to Rawls are fairly attributed than in the merits of those views themselves. Henceforth, my attributions of positions "to Rawls" should be understood as shorthand for attributions "to Rawls, as interpreted by Scheffler."

The problem already mentioned remains a sore point for the Liberal Theory: views that seem commonly and naturally to support the idea that prejusticial desert does not constrain distributive justice seem to undermine the idea that it does constrain retributive justice, and vice versa. After explaining and disavowing some such views, Scheffler offers his own principled rationale for the Liberal Theory's splitting of the role played by prejusticial desert in a comprehensive theory of (both distributive and retributive) justice. That rationale is supposed to underwrite Rawls's own embrace of the Liberal Theory. My argument here is first that Rawls (again, as interpreted

5 Scheffler 2000, p. 978. 6 Scheffler 2000, p. 983.



SCHEFFLER ON RAWLS, JUSTICE, AND DESERT 263

by Scheffler) cannot consistently maintain the two theses at issue, and then that - Rawls aside - Scheffler's rationale for the contrasting roles of prejusticial desert fails.

THE RAWLSIAN ARGUMENT

I begin with a point that is decisive against Rawls and possibly decisive against Scheffler. Scheffler devotes most of "Justice and Desert in Liberal Theory" to a sympathetic, defensive exposition of Rawls, and it is occasionally hard to separate defense from mere exposition. Here is Scheffler on Rawls:

[T]he notion of moral desert or worth itself presupposes a prior conception of justice and cannot, accordingly, provide the basis for such a conception. [...] To be morally worthy, Rawls argues, is to have a strong sense of justice; thus "the concept of moral worth is secondary to those of right and justice, and it plays no role in the substantive definition of distributive shares".7

Call this "the Rawlsian argument." Scheffler does not explicitly avow this argument, but neither does he disavow it. Nor does he anywhere grumble at Rawls's apparent indifference between moral desert and moral worth, an indifference I will feign here.8

Taken at face value, the Rawlsian argument is clearly unsound. For if being morally worthy is having a strong sense of justice, then the two are identical, and it makes no sense to say that one is "secondary" to the other. Here, however, is a sympathetic and at least somewhat more plausible reconstrual:

(1) The concept of being morally deserving includes (but not exhaustively) the concept of having a strong sense of distributive justice.9

7 Scheffler 2000, p. 977. For the Rawlsian argument that Scheffler summarizes and partly quotes, see Rawls 1971, pp. 312-313.

8 Moral desert is supposed to have moral worth or virtue as its basis. So while desert and worth are not identical, we may take them to co-vary. See Scheffler's footnote 53 (2000, p. 978) for discussion about the relation in Rawls between moral desert and desert simpliciter.

9 The point just made about conceptual identity is the chief motivation for the parenthetical qualification. Minimal plausibility is another: it is bizarre to think that one's moral worth depends solely on the strength of one's sense of justice.



264 EUGENE MILLS

So

(2) the concept of moral desert includes (but not exhaustively) the concept of distributive justice.

Hence

(3) the concept of distributive justice is not analyzable (even partially) in terms of moral desert.

But since

(4) if the concept of distributive justice is not analyzable (even partially) in terms of moral desert, then moral desert does not constrain the justice of distribution,

it follows that

(5) moral desert does not constrain the justice of distribution.

The Rawlsian argument is supposed to support the Liberal Theory's rejection of desert as a constraint on distributive justice. I doubt this argument's cogency. I claim, however, that if it is cogent, then it undercuts the Liberal Theory's acceptance of desert as a constraint on retributive justice.

Here's why. Note first that it is not Rawls but I who charac- terize the crucial premise (1) as saying that being morally deserving properly subsumes having a strong sense of distributive justice. According to Rawls, being deserving requires (or less plausibly, is) having a strong sense of justice simpliciter. If this is right, then it seems that whatever plausibility attaches to (1) attaches as well to its analog for retributive justice,

(1R) The concept of being morally deserving includes (but not exhaustively) the concept of having a strong sense of retributive justice.

For no one can have a strong sense of justice without having a strong sense of retributive justice. Replace (1) with (1R), and replace all occurrences of "distributive," in the rest of the Rawlsian argument, with "retributive." What results is an argument whose premises and inferences have at least the same degree of plausibility as those of the original, whatever that degree may be. The new conclusion is at odds, however, with the Liberal Theory's allowance of desert as a constraint on retributive justice.




It is obvious that substituting "retributive" for "distributive" will affect neither the argument's validity nor the plausibility of premise (4). It may seem less obvious that (1R) is at least as plausible as (1). You might think, in fact, that (1R) is quite implausible.

You might be right, but my claim is not thereby undermined. For I have claimed for (1R) only plausibility at least equal to that of (1), not any absolute amount. (1) is, in fact, quite implausible. It is unclear why Rawls would think that being worthy requires having a strong sense of distributive justice. It is unclear, in fact, why he thinks it requires having any sense of distributive justice. Some people seem to lack such a sense - consistent maximizing act- utilitarians, extreme libertarians, or the merely selfish, for example. I don't see why such people don't deserve their fair share of the distributive pie, even if they mistakenly reject the idea that there is any such thing as a fair share and would, if they were in charge, divide the pie unfairly in some circumstances. Similarly, such people might well deserve punishment even if they reject the idea anyone deserves punishment and would, if they were in charge, know- ingly punish the innocent and forswear punishing the guilty in some circumstances. So while I concede - and in fact affirm - the

implausibility of (1R), I see no basis for judging it less plausible than (1).

On the other hand, we do refrain from punishing the harmful behavior of animals, psychopaths, and young children on the ground that they cannot tell right from wrong. It is natural to interpret their moral inability and consequent exculpation as stemming from a failure to grasp the idea of retributive desert: if they can't grasp that their behavior deserves punishment, then it doesn't. So perhaps (1R) does exert some intuitive pull, and if so, it probably exerts more than (1).

Nevertheless I can allow - and for argument's sake do so - that a sense of distributive justice is more important for moral worth than a sense of retributive justice. Replace (1) with

(1R*) The concept of being morally deserving includes (but not exhaustively) the concept of having at least a weak sense of retributive justice.

Then replace "distributive" with "retributive" in (2)-(4), and you have an argument whose premises are collectively weaker than, at



266 EUGENE MILLS

least as plausible as, and arguably much more plausible than that of the original Rawlsian argument, while the strength of its inferences is identical.

The only possible response on behalf of the Liberal Theorist who accepts the Rawlsian argument is to maintain that while being a morally worthy person requires having a strong sense of distributive justice, it requires no sense of retributive justice whatsoever. Neither Rawls nor Scheffler, however, makes any such claim. This omission is to their credit, for it is hard to see any principled basis for such a position.

Thus the Rawlsian argument underwrites the Liberal Theory's rejection of desert as a constraint on distributive justice only by undermining its allowance of desert as a constraint on retributive justice.

HOLISM AND INDIVIDUALISM

The Rawlsian argument is not the only rationale for the Liberal Theory's divided attitude towards desert. The rationale that is explicitly Scheffler's own appeals to a distinction between "holism" and "individualism." Distributive justice is holistic, says Scheffler, "in the sense that the justice of any assignment of economic benefits to a particular individual always depends - directly or indirectly - on the justice of the larger distribution of benefits in society."10 Retributive justice is individualistic, on the other hand, in taking individual wrongdoing as a necessary condition of justified punishment.

Keep necessities and sufficiencies separate. Scheffler seems to say that individual merit is necessary for determining the justice of retribution but not sufficient for determining the justice of distribution. No doubt. The holism just articulated for distributive justice is compatible, however, with the view that prejusticial desert imposes necessary (though not sufficient) conditions on just distribution - that prejusticial desert constrains distributive justice, contrary to the Liberal Theory. Less pertinent but equally noteworthy: the individualism of retributive justice is perfectly compatible with the view that the justice of any punishment meted out to a particular individual

o10 Scheffler 2000, p. 984.




always depends - directly or indirectly - on the justice of the larger patterns of punishment in society.

In a pair of footnotes, Scheffler acknowledges these points."1 He responds as follows:

[D]istributive justice is seen as holistic, not in the sense that holistic considerations may trump considerations of prejusticial desert, but rather in the sense that no considerations of prejusticial desert are thought to have any normative weight or standing at all.12

It is clear, then, that the alleged holism of distributive justice provides no argument for the claim that such justice is unconstrained by prejusticial desert. For holism, as Scheffler makes clear in the passage just quoted, simply is this claim.

Recall the problem Scheffler faces. It is not that there is any outright inconsistency in maintaining the twin theses of the Liberal Theory per se. No such inconsistency is alleged. It is rather that there is no principled and compelling motivation or argument for one thesis that does not undo the other. So merely to assert that distributive justice is holistic in this strong sense is not to answer the challenge before us but merely to restate it. The question remains: why should we think that prejusticial desert plays no role whatsoever in distributive justice (despite its playing a role in retributive)?13

11 See notes 72 and 73 in Scheffler 2000, pp. 986-987. Scheffler is responding to these points as made by Paul Butler (1995) and Douglas Husak (2000).

12 Scheffler 2000, p. 987. 13 An anonymous referee for this journal suggests that the following argument

underlies Rawl's denial that prejusticial desert contrains distributive justice:

[S]ince talents are arbitrary from a moral point of view, ... they do not themselves form the basis for any rationale for any amount of primary goods. There is nothing prior to the fair rules of distribution that could be the basis for distributive desert.

The second sentence is presumably supposed to follow from the first, but a saltus clearly separates them. As Rawls admits, there is such a thing as prejusticial moral worth, one understanding of which is suggested by Rawls's remarks about "bad character". Moral virtues and vices are not talents in the usual sense, and they are not morally arbitrary.

Some philosophers discount character as a basis for distributive justice on the grounds that my character is (at least initially) not subject to my control. This position is confused. My coming to possess a moral vice (for example) may be not be something for which I bear responsibility, but the virtues and vices themselves



268 EUGENE MILLS

Scheffler's answer is "partly moral and partly empirical."14 He says the case "derives in part from a strong sense of the equal worth of persons and from a firm conviction that in a just society all citizens must enjoy equal standing." If "equal worth" is not equal moral worth, I do not know what it is. And if it is not prejusticial moral worth, then it is hard to see how Scheffler's "strong sense of the equal worth of persons" could possibly support the claim that prejusticial desert plays no role in distributive justice. After all, if I say, "All persons are of equal justicial moral worth; therefore prejusticial moral worth plays no role in determining distributive justice," I either commit a gross non sequitur or else I beg the question. For this is equivalent to saying, "All persons have the same worth as dictated by correct principles of justice; therefore no notion of worth that is not so dictated plays any role in determining the correct principles of justice." If we construe the premise as asserting that only principles of justice can dictate worth, then it begs the question. If not, it is irrelevant to the conclusion.

On the other hand, if - as seems overwhelmingly plausible - Scheffler's "strong sense of equal worth" does involve equal, prejusticial moral worth, then ironically, Scheffler invokes prejusticial desert as a constraint on distributive justice: any adequate account of distributive justice must, apparently, respect the equal prejusticial moral worth of persons. It hardly needs adding that the argument's conclusion is in this case unsupported by the premise that contradicts it.

While most of us share a commitment to what we might ordinarily call "the equal worth of persons," this slogan is not a clear expression of that commitment. Scheffler wants to accommodate, even if not to endorse, the retributive idea that some people deserve

bear heavily on my moral worth. To put it another way: that I was born lazy is certainly not my fault, but being lazy is a fault, and if I have it, it is my fault. As such, and only as such, it counts against my moral worth (see Owens 2000, pp. 117-126).

So why must distributive justice be unconstrained by prejusticial moral worth, whether this is understood in terms of bad and good character - or in some other prejusticial terms, as I consider below in the text? As we have seen, Rawls and Scheffler assert that it is so unconstrained, but what we need and have not yet seen is an argument to back this assertion.

14 Scheffler 2000, pp. 984-985.




punishment and others do not because of differences in moral worth - some people are worse than others. But if people differ in worth, then not all people have equal worth. This seems anyhow a plain fact: some people are worse than others.15 To acknowledge this fact is not to abandon a commendable commitment to something we might misleadingly call "the equal worth of persons," but it is to call for careful thought about the content of this commitment.

However this commitment is cashed out, it seems unlikely that it will turn out not to involve a moral, prejusticial notion of worth - unless it turns out to involve an "equality" that is irrelevant to establishing holism. It might be cashed out as the thesis that all people's interests count equally, or as the thesis that everyone has the same initial basic moral rights. These claims, which make no appeal to overall moral worth, are at least modestly plausible. It is hard to see in them any basis, however, for the thesis that distributive justice is unconstrained by moral worth. In any case, if there is an argument to be made, Scheffler certainly has not made it.

What about the empirical part of Scheffler's argument? After invoking a strong sense of equal worth, Scheffler continues by pointing out that in typical human societies,

[C]itizens' material prospects are profoundly interconnected through their shared and effectively unavoidable participation in a set of fundamental practices and institutions ... that establish and enforce the ground rules ... [...] The holist concludes that, in light of these moral and empirical considerations, it makes no normative sense to suppose that there could be, at the level of fundamental principle, a standard for assigning [economic] benefits that appealed solely to characteristics of or facts about the proposed beneficiaries. Yet that is precisely what a prejusticial conception of desert would have to be.16

Remember, one who denies Scheffler's holism need maintain only that prejusticial desert constrains distributive justice non-vacuously, not that it wholly or even largely determines it. So the non-holist

15 I've heard the suggestion that people start out with equal moral worth, but that this equality changes with their choices. The plausibility of this suggestion does not survive reflection, if moral worth is supposed to capture moral virtue (as opposed to equality of interests or the like). Right from the start, some people are surely disposed to be (say) kinder than others, and it boggles the imagination to think that any such moral superiority of A over B will inevitably be exactly offset by some moral superiority of B over A.

16 Scheffler 2000, p. 985 (my italics).



270 EUGENE MILLS

need not say that the principles determining the final assignment of benefits appeal solely to (individualistic) "characteristics of or facts about the proposed beneficiaries." It would be uncharitable to read Scheffler as attacking, and the Liberal Theory as denying, merely the obviously inadequate view that distributive justice is determined entirely by individualistic considerations.

Are non-holists committed to the view that there is some principle, even if not a sufficient one, that is relevant to the assignment of benefits and that appeals solely to individualistic facts about proposed beneficiaries? Not obviously: perhaps determination needn't be principled, as philosophical discussions of supervenience suggest. Suppose, however, that non-holists accept such a commitment. Must they then articulate it? Not obviously: it is one thing to hold or argue that there must be a principle of a certain sort, quite another to articulate it.

Suppose non-holists are conveniently concessive: they articulate some relevant principle of determination. As long as they say nothing silly, they are probably invulnerable to Scheffler's obser- vations. They can perfectly well accept that empirical facts of economic intermingling vastly weaken the practical upshot of their principle. Such a principle might say, for example, that insofar as citizens' material prospects are not interconnected in the contingent but ubiquitous ways that Scheffler discusses, benefits should be distributed in proportion to prejusticial moral worth. This principle will then be qualified by conditions that accommodate economic interconnection, perhaps so far that its practical upshot is nil. The conceptual point, however, remains.

You might balk at such abstraction from actual conditions or think it beside the point. If so, consider that absent equally remote abstraction from gritty reality, no line separates distributive from retributive justice, and hence there is no hope of restricting the constraining influence of desert to the latter. If we think of principles of distributive justice as determining the just distribution of economic benefits in real societies all things considered, then they must accommodate the effects on such distribution of criminal wrongdoing and its punishment. Fines levied as punishment for criminal wrongdoing - to take only one obvious example among myriad available ones - alter the distribution of benefits in society.




Insofar as prejusticial desert constrains punishment, it ipso facto constrains distributive justice in this expansive sense, and the Liberal Theory's joint allowance of the first constraint and denial of the second would doom it to incoherence.

The Liberal Theory can resist this attack only by abstractively limiting the scope of distributive justice. Rawls's strategy takes principles of distributive justice as fixing the distribution of benefits in the ideal case in which there is no wrongdoing. We clearly must allow that principles of retributive justice alter the force of these ideal distributive principles and that the fact of wrongdoing may greatly reduce their practical upshot.

By the same token, someone who holds a non-holist conception of distributive justice might hold that in ideal conditions, from which certain common but contingent economic facts are abstracted away, just distribution is wholly fixed by prejusticial desert. (Non-holists are not committed to this. They could maintain the weaker view that even in ideal conditions, desert is only one of many factors that jointly constrain just distribution.) This view is compatible with the allowance that desert has little or no practical bearing on just distributions in actual societies, which are far from ideal.

I do not affirm a non-holistic conception of distributive justice. But Scheffler needs an argument against it. If he had one, he might have a principled rationale for the Liberal Theory's divided attitude towards desert - if that argument didn't also undermine a non-holistic conception of retributive justice. There is no such argument in view (except perhaps the self-undermining one from equal worth). Scheffler has mistaken an assertion of holism for a defense of it. And insofar as the Liberal Theory's attitude towards desert poses a problem, he has mistaken an articulation of the problem for a solution to it.17

17 After I submitted this paper to this journal, Jeffrey Moriarty's "Against the Asymmetry of Desert" (2003) appeared. Moriarty's main point closely approxi- mates mine, and our arguments overlap. The overlap is incomplete, though, and our papers are complementary rather than redundant.



272 EUGENE MILLS

ACKNOWLEDGEMENTS

Thanks to Daniel Attas, Anthony Ellis, Peter Vallentyne, Wai-hung Wong, and two anonymous referees for helpful comments and discussion.

REFERENCES

Butler, P., 'Racially Based Jury Nullification: Black Power in the Criminal Justice System', Yale Law Journal 105 (1995): 677-725.

Husak, D., 'Holistic Retributivism', California Law Review 88 (2000): 991-1000. Moriarty, J., 'Against the Asymmetry of Desert', Noais 37 (2003): 518-536. Owens, D., Reason Without Freedom: The Problem of Epistemic Normativity

(London: Routledge, 2000). Rawls, J., A Theory of Justice (Cambridge, Massachusetts: Harvard University

Press, 1971). Sandel, M., Liberalism and the Limits of Justice (Cambridge: Cambridge Univer-

sity Press, 1982). Scheffler, S., 'Justice and Desert in Liberal Theory', California Law Review

88 (2000): 965-990. Republished as ch. 10 of Scheffler's Boundaries and Allegiances (Oxford: Oxford University Press, 2001).

Sher, G., Desert (Princeton: Princeton University Press, 1987). Zaitchik, A., 'On Deserving to Deserve', Philosophy and Public Affairs 6 (1977):

370-388.

Department of Philosophy Virginia Commonwealth University Richmond, VA 23284-2025 USA E-mail: [email protected]



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Scheffler on Rawls, Justice, and Desert