SEANA VALENTINE SHIFFRIN Incentives, Motives, and Talentsshaslang/mprg/ShiffrinIMT.pdf · 2010. 6. 16. · Incentives, Motives, and Talents papa_1180 111..142 SEANA VALENTINE SHIFFRIN

Incentives, Motives,and Talentspapa_1180 111..142

SEANA VALENTINE SHIFFRIN

For most of the last two decades, the dominant discussion about thesubstantive principles advanced in John Rawls’s A Theory of Justice hasfocused on the relationship between the Difference Principle and citi-zens’ behavior in economic markets. A major axis of that debate con-cerns whether the Difference Principle directly applies to citizens1 oronly to the social institutions of the Basic Structure. G. A. Cohen hasargued vociferously that despite Rawls’s own resistance to the idea,under a consistently worked-out version of Justice as Fairness, the Dif-ference Principle would range, mutatis mutandis, over citizens as well asinstitutions. If so, citizens would act to further the interest of the leastwell off in their employment decisions.2 Consequently, Justice as

I am grateful to Richard Arneson, Jonathan Garthoff, A. J. Julius, Andrew Lister, SamuelScheffler, T. M. Scanlon, Stephen White, and the Editors of Philosophy & Public Affairs forhelpful conversations and insightful feedback. This article was originally written for aconference at Oxford University in January 2009, celebrating the work of G. A. Cohen. It stillseems both incredible and painful that Jerry unexpectedly died the summer after and that hewill not be with us for years to come, ready with his sharp mind, warm heart, quick andmischievous wit, and a steady supply of apposite songs. I am especially grateful to Jerry foryears of guidance, criticism, and advice. He offered all of us a model of how to vindicate someof philosophy’s most central ambitions: facing hard and elusive questions with a combina-tion of foreground confidence tempered by compassion, humility, humor, high standards,intellectual honesty, creativity, and precision.

1. I use this term to refer to all of those cooperating members of a well-ordered society.“Citizens” strikes me as the best inadequate term to capture this meaning, although Iintend to include permanent and other nontransient residents even if they are ineligible tovote and lack other accoutrements of full-blown citizenship; further, I do not mean here todiscuss those citizens who are not cooperating members.

2. Of course, employment decisions are not the only economic decisions citizens makewithin our system of joint social cooperation, although they have been central to thisliterature. See note 39 for a brief discussion of the issues associated with economic invest-ment and entrepreneurs. The further issue of what obligations, if any, citizens have in theirconsumption behavior (to the only rough extent these categories are separable) is complex

© 2010 Wiley Periodicals, Inc. Philosophy & Public Affairs 38, no. 2

Fairness would yield a more egalitarian economic structure than Rawlsand many commentators supposed. In particular, Justice as Fairnesswould rarely tolerate salary incentives and the economic inequalitiesthey produce because individuals who applied the Difference Principleto themselves would not ask for or accept such salary incentives merelyto perform more productive work; they would, instead, labor in ways thatwould be to the greatest advantage of the least well off without demand-ing special incentives for so doing.3

Cohen’s intervention has spawned a wide range of critical reactions,most of which revolve around the question of whether the DifferencePrinciple directly applies only to the social institutions of the Basic Struc-ture. In this article, I argue that it is a misconception that the issues aboutthe relationship between labor and economic inequality hinge upon theresolution of the larger issues about the distinctiveness of the BasicStructure. Even if we allow that the Difference Principle applies directlyonly to the Basic Structure, the same central issues about the justice ofsalary incentives will nevertheless arise as a consequence of tracing outthe implications of the publicity requirement, namely citizens’ accep-tance of the justifications for the Difference Principle.

In this article, I will articulate a different version of the egalitariancritique of labor incentives, a critique inspired by Cohen but differingsubstantially in form and somewhat in extension. Its articulationrequires a preliminary development of some methodological ground(what I call substantive virtue theory) that Cohen tilled early on, but didnot fully exploit. As I develop the alternative approach, I will argue that itavoids much of the controversy about the Basic Structure and it handlesthe demandingness objection in a better way. I’ll finish by discussing ahard but central case for my view.

Although the article works within the Rawlsian framework, the issuesit considers are not technical ones and have a broader range outside ofthe framework, reaching beyond the particular question of labor

and quite interesting, given the connection between consumption and pursuit of one’sconception of the good, but rather neglected.

3. Although Cohen has written many important works on the subject over the last twodecades, the central views and most important papers appear in Rescuing Justice andEquality (Cambridge, Mass.: Harvard University Press, 2008), hereinafter abbreviated asRJE. For convenience and brevity, I will mostly confine my attention and citations to thiswork of his.

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incentives. The larger question the article considers is how and in whatway, if at all, our convictions about a just social and economic structureshould influence our daily lives and individual decisions. My basic pointwill be that, whether inside or outside a Rawlsian structure, althoughdifferent principles may apply to social institutions and structure than toindividual conduct, the underlying justifications behind these principlesmay have broader range and so may have implications for what otherprinciples one should accept and what conduct is appropriate in otherdomains. In this way, the principles governing the Basic Structure maynot directly apply to individuals and vice versa, but they may nonethe-less exert mutual influence on one another.

i. common prefatory ground: substantive virtue theory

The argument I will develop draws upon what I label the “substantivevirtue theory” of political philosophy,4 which I take to be an account ofthe ramifications for citizens and their characters of the Publicity Con-dition, namely the condition that in a well-ordered society, citizensaccept the principles of justice as well as their major justifications.5 I takesubstantive virtue theory to involve an investigation of the beliefs, habits,dispositions, motives, attitudes, and sometimes behaviors individualsshould develop, foster, and express given the ethical and political prin-ciples that govern them and given their commitments to these prin-ciples. Specifically, substantive virtue theory investigates those beliefs,habits, dispositions, motives, attitudes, and behaviors that follow fromthese principles and their acceptance, but that, at least on their surface,are not specifically or explicitly spelled out by or demanded by theseprinciples. This description and the term “substantive virtue theory”should make it clear that I do not mean to refer to a political analog of

4. This methodology is not identified as such but plays a powerful role in Cohen’sTanner Lectures, at least as I read them. See G. A. Cohen, “Incentives, Inequality, andCommunity,” in Tanner Lectures on Human Values, Vol. 13, ed. Grethe B. Peterson (SaltLake City: University of Utah Press, 1992), reprinted in RJE as chapter 1. It later receded fromhis development of his argument against salary incentives but is the inspiration for theapproach I sketch here.

5. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press,1971), pp. 9–10, 13, 133, 453–54 (citations will be to the original, ‘classic’ edition); John Rawls,Political Liberalism (New York: Columbia University Press, 1993), pp. 63–64; John Rawls,Justice as Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001), p. 89.

113 Incentives, Motives, and Talents

what is often labeled the “virtue ethics” approach to moral philosophy.6

Substantive virtue theory, whether in ethics or in politics, need not sub-scribe to the more robust metaethical commitments of the sort oftenassociated with virtue ethics.

To elaborate on its positive content, substantive virtue theory beginswith certain principles (taken to be correct) and then investigates theirpenumbral power. Assuming these principles are correct, it asks whatimplications they have—beyond their direct and explicit regulations anddirectives—for those individuals who may be expected to comply with,accept, and support the implementation of these principles. In addition,it investigates what further ramifications these entailments would havefor the social institutions in which individuals operate and the claimsthey could make of and on them. Substantive virtue theory is especiallyattentive to the institutional, social, and psychological contexts and rela-tionships in which such principles are to be implemented, as well as thehazards humans often encounter when implementing these principles.

Identifying these implications of these principles in such contextsinvolves asking questions such as:

(1) If principle P holds, what behaviors and what character traits,e.g., beliefs, habits, dispositions, attitudes, and motives otherthan those explicitly specified by P will be necessary for thereliable realization of P’s directives? What behaviors andtraits must citizens therefore manifest, develop, cultivate,and/or implement?

For instance, if there is a moral principle against using violence toexpress and exorcise one’s irritation, the conditions for its reliable real-ization may imply that agents have duties not simply to refrain fromviolent outbursts but also should cultivate dispositions of restraint,

6. Nor do I attribute such a position to Cohen’s Tanner Lectures. Although Cohen doesclaim that some elements of the ethos cannot be codified, I do not take him as endorsinganything like the view that justice is that which the just person would do or that which justpeople would elect; indeed, Cohen’s criticism of constructivism leads him far from posi-tions of this kind. See, e.g., G. A. Cohen, RJE, pp. 22, 352–54. For exemplars of (metaethical)virtue ethics, see, e.g., Philippa Foot, Natural Goodness (Oxford: Oxford University Press,2003); Marcia Baron, Philip Pettit, and Michael Slote, Three Methods of Ethics (Oxford:Wiley-Blackwell, 1997); Roger Crisp and Michael Slote, eds., Virtue Ethics (New York: OxfordUniversity Press, 1997); Margaret Olivia Little, “Virtue as Knowledge: Objections from thePhilosophy of Mind,” Noûs 31 (1997): 59–79.


techniques of anger management, and habits of conflict avoidance toavoid succumbing to predictable temptations to engage in violence.7

(2) If principle P holds and publicity conditions apply (i.e., condi-tions in which the principles and their justifications are known,accepted, and known to be known and accepted by citizens),does the acceptance of principle P and its justifications haveimplications for any other principles agents (and institutions)should accept? Further, are there other character traits, e.g.,beliefs, habits, dispositions, attitudes, motives, or behaviors thatagents should develop to implement the foundational principleand its progeny under publicity conditions? Are there sometraits, beliefs, attitudes, motives, et alia, or behaviors that areinconsistent with these principles and therefore cannot groundclaims, rights, or duties?

This second methodological move, investigating the implications ofthe publicity condition and of the acceptance of the justifications behindthe principles, may be somewhat less familiar.8 To clarify, I will offer asomewhat extended example of its use, albeit in a different context thanlabor incentives, my main topic.

As I have argued elsewhere, the acceptance of a free speech principleand its justifications implies that citizens should not make claims for theexercise of state authority that are based upon a desire that others shouldnot evince (nonlibelous) criticism of them, their views, or their speech.9

A citizen’s acceptance of a free speech principle is inconsistent with herendorsement of the idea that state authority should be exerted to sup-press criticism or, for that matter, to suppress expressions of agreementand consensus. The acceptance of a free speech principle does not entailthat citizens should not hope that others do not criticize them, just as it

7. See Barbara Herman, Moral Literacy (Cambridge, Mass.: Harvard University Press,2007), pp. 97–104.

8. A more familiar, related move holds that the underlying justification of a principlealso infuses its correct interpretation. I endorse this view as well, but I will largely put issuesof interpretation and interpretative methodology aside here.

9. I explore these arguments in “Intellectual Property,” in Companion to ContemporaryPolitical Philosophy, 2nd ed., ed. Robert Goodin et al. (Oxford: Blackwell, 2007), pp. 653–68,and in “The Incentives Argument for Intellectual Property Protection,” in IntellectualProperty and Theories of Justice, ed. Axel Gosseries et al. (New York: Palgrave MacMillan,2008), pp. 94–105.


does not preclude their belief that it is morally wrong for their fellowcitizens to burn the flag or condemn the president. It does, however,entail that citizens not regard such hopes or other private desires asgiving rise to reasons or preferences that should have public weight, i.e.,they should not figure in the motives citizens act upon (whether explic-itly or covertly), or in the reasons they give or act upon, when advocatingor implementing state action toward such criticism. They should work toensure that such desires do not infuse or influence their dispositions toapprove or disapprove of state policy, their relevant moral-politicalintuitions, and their relevant social and political judgments. Withrespect to many justifications for the free speech principle that do notfocus solely on the special hazards of state action but instead on theimportance of individual expression and dialogue or on the flushing outof the truth, those justifications will also entail that the virtuous citizenwill not regard her hopes that others not criticize her as a reason tosupport social but nonlegal forms of suppression of sincere criticism;neither will she allow such hopes to influence her pertinent judgments inless conscious, more inchoate ways.

The justifications behind the free speech principle may have yetfurther ramifications. Suppose the source of the demand for certainintellectual property protections, such as the power to suppress deriva-tive works or sampling, is that creators do not wish to create unlessthey will have the legal power to suppress a particular, highly effective,but unwanted form of criticism involving sampling and quotation.That motive would be inconsistent with their internalization of thefree speech principle. Their desire not to be criticized could not rea-sonably be seen by them as justifiably grounding the provision of alegal power to suppress. Likewise, if creators do not wish to createunless they will have the legal power to suppress expressions of agree-ment because creators want to be the (legally recognized) exclusivearticulators of a position or because they do not want competitors,those motives would also be inconsistent with their internalization ofthe free speech principle. If the free speech principle and its justifica-tions are public, then in a well-ordered society, those motives (if at allpresent) would not be seen to ground reasonable claims for the exer-cise of state authority and, therefore, would not be made or recognizedas reasonable claims by other citizens. Whatever case for intellectualproperty is to be made, it cannot rest directly or implicitly on claims


that it is appropriate to suppress or censor speech because its contentis unwelcome.

This preliminary detour about freedom of speech is meant to illustratehow the substantive virtue methodology to which I subscribe mayoperate and, in particular, how a principle applying to social institutionsmay have implications for individual conduct even if it does not directlyapply to individuals.10 I now turn to apply that methodology to the

10. One may object that this methodology is less one about the substantive virtuescitizens would have in a just society and more an extended analysis of whether thearguments and reasons they respond to are consistent with the other intellectualcommitments they have, such as their adoption and acceptance of the two principlesand their justifications.

In reply: Nothing crucial hangs on the label ‘virtue’. Most of my argument does involvean extended foray into what, in all consistency, commitment to the two principles entails.I find it helpful to regard it as an investigation into the virtues of the just citizen because itaddresses the inner life of the just citizen and how that inner life is properly manifested inhuman relations, e.g., how the just citizen would regard and manage a variety of self- andother-regarding desires, beliefs, and personal traits, which ones she would take to generatepublic reasons for action, and which she would take to have a merely private status.

A more extensive discussion of the political virtues might also explore what charactertraits and individual behaviors are not required by consistency per se but are socially orpsychologically necessary or, to a lesser degree, facilitate compliance with the require-ments of justice. For instance, widespread compliance with a particular rule of justice maynot be a justificatory precondition of any one citizen’s compliance with that rule, but livingamongst others who make similar sacrifices and undertake similar burdens may makecompliance feel easier and more normal; if so, public manifestations of individualcompliance—showing one has complied—may not be required by justice, but may be avirtue because they help to create a social climate that facilitates others’ compliance andmakes it more comfortable. Such a view should, however, be distinguished from the strongversion of transparency defended by Andrew Williams. See note 22.

An even broader investigation into the conditions under which principles are well real-ized in social contexts would ask not only what positive, facilitative features of citizens’personalities (broadly speaking) principle P and its realization require. We might also askwhat needs human agents will have if they are to satisfy P and if they are to engagewholeheartedly, meaningfully, and successfully in the activities P celebrates or protects;this may then lead us to ask how, socially and politically, these needs may be fulfilled. Ananalysis of this form underlies many arguments for free speech and substantive dueprocess protections. For example, a speech-protective standard of defamation may arisewhen considering our collective interests in criticism coupled with the reasonable fearsand anxieties that beset critics about whether their criticism will provoke hostile retalia-tion. Or, to take another example, an argument for freedom of association may flow fromconsidering the value of free speech as residing in part in the development of free thoughtwithin the sort of social contexts in which people are enabled and feel safe to engage insophisticated, complex, and safe reflection and inquiry. This may in turn give rise to specialprotections for intimate relations: we must provide for safe, productive havens for thought,


context of labor incentives to generate an alternative formulation of thecritique of labor incentives.

ii. an alternative formulation of the problem withlabor incentives

For ease of presentation, I will contrast my alternative formulation withthe common “canonical” formulation of Cohen’s, but I should note myconcern that I may exaggerate the degree to which Cohen is committedto the “canonical” formulation. Cohen’s early articulation of his ownargument suggested the formulation I will present. His later articulationssometimes took a form friendly to my formulation. Whether or not thecanonical version is indeed Cohen’s official position, it is a commonlydiscussed version of the argument and the contrast between it and myformulation is illuminating.

In the canonical version of his argument, Cohen argues that the Dif-ference Principle, in some sense, applies directly to individuals.11 There-fore, in a well-ordered society, talented citizens could not coherentlydemand higher salaries to perform more productive work on thegrounds that such higher salaries would benefit the least well off. For, thetalented could instead perform that more productive work for an equalsalary and thereby free up a greater degree of their additional productionto benefit the least well off. If a citizen internalizes the Difference Prin-ciple and applies it to her own economic activity, then she will demandonly an equal salary to others and perform as productively as possible (inas productive an occupation as possible) in order to maximize the posi-tion of the least well off. Cohen allows for the possibility of just highercompensation for more burdensome employment but attributes theresultant permissible inequalities in social primary goods to inadequa-cies in Rawls’s account of the contents of the social primary goods metricrather than to the justice of inequality produced by incentives.12 A prop-erly constructed primary goods metric would include some measure of

expression, confidence sharing, and mutual influence; given what we are like, these willhave to include the ability to select with whom and in what ways one will share fundamen-tal forms of intimacy. I develop this line of analysis in more depth in “What Is Really Wrongwith Compelled Association?” Northwestern University Law Review 99 (2005): 839–88.

11. See, e.g., Cohen, RJE, pp. 8, 11, 71, 74–75, 198.12. See, e.g., id., at pp. 16, 98–100.


sensitivity to labor burden. Absent greater labor burden, individuals in ajust society would not demand higher remuneration to perform moreproductive work. Once the social primary goods metric is appropriatelyfilled out, differential labor burden would not provide a justification forinequalities in primary goods allocations.

This strategy has generated a great deal of resistance, revolvingaround the question whether, understood in one way, the DifferencePrinciple applies exclusively to the Basic Structure (taken to consistsolely of social institutions) or has the wider, direct application to indi-viduals outside the Basic Structure that Cohen asserts; sometimes thisdispute takes another form in which all parties agree the DifferencePrinciple applies exclusively to the Basic Structure but disagree aboutwhether the Basic Structure only includes institutions or whether it alsospans individual economic choices and their effects (to which the Dif-ference Principle would apply as part of the Basic Structure).13 Withrespect to the specific question about labor incentives for talent, I takethese different formulations to cover roughly identical substantiveground and will focus on the former articulation.14

13. Helpful articulations, refinements, and responses to this objection (both sympa-thetic and critical) may be found in G. A. Cohen, RJE, chap. 3 and passim. Joshua Cohen,“Taking People As They Are,” Philosophy & Public Affairs 30 (2002): 363–86; A. J. Julius,“Basic Structure and the Value of Equality,” Philosophy & Public Affairs 31 (2003): 321–55;Liam Murphy, “Institutions and the Demands of Justice,” Philosophy & Public Affairs 27

(1999): 251–91; Thomas Pogge, “On the Site of Distributive Justice,” Philosophy & PublicAffairs 29 (2000): 137–69; John Rawls, Political Liberalism, pp. 282–83; Samuel Scheffler, “Isthe Basic Structure Basic?” in The Egalitarian Conscience, ed. Christine Sypnowich (Oxford:Oxford University Press, 2006), pp. 102–30; Kok-Chor Tan, “Justice and Personal Pursuits,”Journal of Philosophy 101 (2004): 331–62; Michael Titelbaum, “What Would a RawlsianEthos of Justice Look Like?” Philosophy & Public Affairs 36 (2008): 289–322; AndrewWilliams, “Incentives, Inequality and Publicity,” Philosophy & Public Affairs 27 (1998):225–47, at pp. 228ff.

14. I will not address the concerns of those who contend that individual choices andbehavior are entirely irrelevant to the justice of a society and that only the configurationand operation of social institutions in the Basic Structure matter. That view goes beyondRawls’s and is not what is primarily at issue between Rawls and Cohen, namely whether thetwo principles of justice apply to individuals and whether widespread labor incentives fortalent would be consistent with a society that implemented Justice as Fairness. My princi-pal claim is that a negative answer to the latter does not require a positive answer to theformer. As I argue in the text, on Rawls’s view, the just society is a well-ordered society andwell-ordered societies involve acceptance of and compliance with the principles of justice,in addition to the execution of other individual duties of justice by individual citizens. Tothe extent individual citizens fail to meet these requirements and the society is, therefore,


Cohen’s canonical argument has also given rise to demandingnessobjections, including that it is overly demanding for each citizen to sub-ordinate her personal interests in occupational preference, work-style,and her personal projects and relationships, in order to, at every junc-ture, maximize the position of the least well off.15 Further, it may beoverly demanding to expect individuals to initiate these sacrifices them-selves (as opposed to expecting them to comply with a Basic Structurethat offers them a more limited set of options but does not demand thatthey initiate sacrifices of this kind themselves).16 In response to thesecriticisms, Cohen has embarked on an ambitious project to show theprinciples applying to the Basic Structure have continuous applicationto individual citizens, tempered by an orthogonal, crosscutting personalprerogative.17

I submit that the Basic Structure controversy renders some of thecriticism of salary incentives more controversial than need be and dis-tracts from some central issues over our individual behavior in themarket. Here I will present the critique in another way that sidesteps theBasic Structure debate. I also attempt to frame the argument withoutincorporating individually measured welfarist elements into the metric.I do, however, agree with Cohen that sensitivity to (in my case—objectivemeasures of) labor burden should be incorporated into the metric.

Instead of arguing that the Difference Principle (or some closely con-figured cognate) directly regulates citizens and thereby precludes most

not well ordered, the society fails to be fully just. This strikes me as an eminently plausibleview, but its extended defense against those who disagree would require more argumentthan room allows here.

15. See Titelbaum, “What Would a Rawlsian Ethos of Justice Look Like?” pp. 307–20;Philippe Van Parijs, “Rawlsians, Christians and Patriots,” European Journal of Philosophy 1

(1993): 309–42, at pp. 320–25; Tan, “Justice and Personal Pursuits,” pp. 335, 347–52. See alsoDavid Estlund’s argument that to avoid this difficulty, Cohen must endorse broad agent-centered prerogatives that narrow the gap between Cohen’s and Rawls’s interpretation ofthe Difference Principle’s implications. David Estlund, “Liberalism, Equality, and Frater-nity in Cohen’s Critique of Rawls,” The Journal of Political Philosophy 6 (1998): 99–112.

16. Famously, Thomas Nagel makes the thematically related point against the libertar-ian, to wit, that the libertarian’s expectations that wealthy individual citizens will contrib-ute large portions of their income to charity voluntarily and without coordination areoverdemanding of the individual, even if a system that yielded the same resultant incomewould not be unreasonable. See Thomas Nagel, “Libertarianism without Foundations,”Yale Law Journal 85 (1975): 136–49, at p. 145.

17. Cohen, RJE, pp. 10–11, 61–62, 70–72, 387–94.


uses of incentives in employment markets, my version of the argumentrelies upon public acceptance of a major underpinning of the DifferencePrinciple: the claim that talents are arbitrary from a moral point of view.The acceptance of this justificatory underpinning of the Difference Prin-ciple itself precludes most standard uses of incentives that yieldinequalities.18 My formulation yields Cohen’s main (though not all) con-clusions about equality but without engendering the controversies thathave exercised his critics. Hence, it would allow Cohen, et alia, to ‘rescue’equality while traveling rather lighter. Further, it offers a more unifiedpicture of the relation between the fundamental critique of talentincentives and the accommodation of concerns about demandingnessthan is accomplished through Cohen’s recognition of a crosscuttingpersonal prerogative.19

Let me elaborate. In the Rawlsian well-ordered society, membersaccept the two principles and their justifications.20 Although it is lessfrequently discussed, the acceptance of the justifications for the prin-ciples is an important component of the publicity condition.21 The major

18. Titelbaum and Nagel both note the tension between acceptance of the grounds ofthe Difference Principle and purely self-interested, maximizing market behavior. See Titel-baum, “What Would a Rawlsian Ethos of Justice Look Like?” pp. 298–99, 302; ThomasNagel, Equality and Partiality (New York: Oxford University Press, 1991), pp. 117–18. I amsympathetic to their positions, but the tension they highlight is a psychological one thatgoes to the issue of the stability of the well-ordered society. My claim is a stronger one inone respect, since I argue the publicity requirement requires acceptance of the justificationof the Difference Principle, which in turn would rule out standard motives for marketmaximizing behavior, on pain of inconsistency (rather than mere psychological implausi-bility). It is weaker, though, in another respect, because it does not rest on empiricalpsychological claims (although I find theirs highly plausible ones); more important, theargument does not yield any claims that acceptance of the justificatory underpinning of theDifference Principle yields a ‘matching ethos’ or an isomorphic ‘correlate’ as Titelbaumsuggests, pp. 299, 306.

19. See, e.g., Cohen, RJE, pp. 10–11, 61–62, 68 n. 37, 70–72, 81, 387–94.20. See Rawls, A Theory of Justice, pp. 9–10, 13, 133, 453–54, and Political Liberalism,

pp. 63–64.21. These features of the publicity requirement cast doubt upon Andrew Williams’s

interpretation of it. See Williams, “Incentives, Inequality, and Publicity,” pp. 233–35, 238–41.Williams argues, inter alia, the publicity requirement demands that justice must not merelybe done but must be seen to be done and, in his discussion, subjects ‘norms’ as well asinstitutional structures to this requirement, pp. 234, 246. He criticizes Cohen’s canonicalargument on the grounds that compliance with an ethos cannot be observed or verifiedand so it advances a conception of justice that cannot be seen to be done. Moreover, thisopacity, in turn, may fray morale that depends on observable practices of reciprocity. But,


justification of the Difference Principle is that distributions of socialprimary goods should not reflect factors that are arbitrary from a moralpoint of view.22 Among a group of well-motivated cooperators, the abilityto demand a higher wage on the market because one has a unique skill isarbitrary from a moral point of view. Because I understand this justifi-cation in a different way than many commentators,23 I will spell out insomewhat greater detail what I take this partial justification for the Dif-ference Principle to involve.

First, as I understand it, the idea that our talents are arbitrary from amoral point of view is not to say simply or mainly that their possession isa matter of luck or chance. For one thing, our talents are not arbitraryfrom a moral point of view full stop. They are arbitrary from a moralpoint of view with respect to income and wealth (and with respect to thebasic liberties as well).

Williams’s reasoning that if compliance with a purported directive of justice is unobserv-able, the directive is therefore suspect, exaggerates the importance of observability in theRawlsian scheme. Rawls’s own understanding of the publicity requirement requires thatcitizens have mental states—that they accept the principles and accept the reasons forthem—but these mental states are not themselves observable. (A weaker version of Will-iams’s view might be plausible, to wit that the institutions comprising the Basic Structuremust operate on public rules whose implementation is observable.)

Although stability may require that citizens do not have persistent reason to fear thatconditions of reciprocity are being abused, I believe that level of mutual confidence andmorale may generally be sustained by a less strictly verifiable ethos, one made manifestthrough the practices of socialization parents engage in, the reasons citizens generally giveto one another for what they do and how they discuss what they do, and those aspects ofbehavior from which inferences about why citizens act the way they do may reasonably bedrawn. Absent evidence to the contrary, that level of semi-transparency seems sufficient tosustain the morale necessary for stability and the good-faith participation of all. See alsoCohen’s critique of Williams in chap. 8 of RJE.

22. Rawls, A Theory of Justice, pp. 14, 72–75. Of course, there are other justifications forthe Difference Principle, as others have stressed. See, e.g., Norman Daniels, “DemocraticEquality,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cam-bridge University Press, 2003), pp. 241–76. I mean here only to sketch out the implicationsof accepting this particular justification. Although Daniels rightly stresses the multifacetednature of the Rawlsian justificatory structure, the interpretation I advance is consistentwith the other justifications of the Difference Principle.

23. See, e.g., the influential interpretation of, and associated criticism by, RobertNozick, that what it is to be arbitrary from a moral point of view is for it to be an accidentor a matter of luck. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books,1974), pp. 227–28.


They are not arbitrary from a moral point of view (at least in Rawls’sjudgment) with respect to occupations and other positions of power,although the very same talents (whether chosen or unchosen) are atissue. This distinction can be inferred from the structure of the fairequality of opportunity principle.24 That principle ensures not that occu-pations and positions of power are equally available to all or that we eachhave equal opportunities to gain access to them, as one might expect iftalents were arbitrary with respect to occupation. Instead, the fair equal-ity of opportunity principle guarantees similar opportunity to those withlike talents and like willingness to make an effort, thereby making whattalents one has relevant to what opportunities should be in reach.25 Withrespect to occupation, what is arbitrary from a moral point of view aresuch things as class origin, race, gender, ethnicity, and religion. But,what talents I have are not arbitrary with respect to the distribution ofoccupations in part because what occupation I am well suited to performand therefore how I may usefully contribute to the joint product of socialcooperation depends, in part, on what I am able to do. Further, thedegree to which a particular occupation allows me to realize my poten-tial (and thereby to satisfy the Aristotelian Principle), and thereforeserves as a good for me, depends upon what my talents are; in thatrespect, my talents are germane. Someone with acute vision may growand be challenged as an art critic, an architect, or a landscape designer,but these occupations may not further the development of aperson with strong social skills as would a position as a teacher, socialworker, or counselor.

But, although my talents are germane to what occupations I shouldperform (and should have fair access to performing), they are arbitrarywith respect to what claims I have on the joint social product to which Icontribute. Each of us has an interest in income and wealth because they

24. Rawls, A Theory of Justice, p. 302.25. Rawls, A Theory of Justice, pp. 83–90. For what it is worth, I find it less difficult than

does Cohen, RJE, at p. 160, to understand why people in the original position would selectfair equality of opportunity even if they are mutually indifferent. The context of opportu-nity provision, Rawls imagines, is a competitive one. Where we are playing a zero-sumgame, if I am to protect my own opportunity and if I deploy a maximin strategy, then I mustopt for fair equality for all. Otherwise, more opportunity for some may, in a competitiveenvironment, mean less for me given that I could be anyone. Like reasoning about com-petitive contexts lies behind Rawls’s other fair equality principle, namely the fair value ofthe political liberties.


allow us access to those resources and opportunities that may promotethe exercise of our higher-order capacity to develop and pursue a con-ception of the good. We each possess this capacity and it is partly invirtue of our mutual possession of this capacity we are to regard our-selves as equal. That capacity does not vary in strength or importance invirtue of what talents we happen to possess or whether these talentshappen to be in market demand. So the ability of this capacity to gener-ate claims for shares of our joint social product does not increase ordiminish depending upon what talents I happen to possess. This capac-ity grounds the initial presumption of equality of distribution ofincome and wealth.

Moreover, the development of my abilities into socially valued talentshas socially determined components in two ways that contribute to thearbitrariness (in the context of income and wealth distribution) of mypossession of my talent. First, what abilities, skills, and qualities can serveour project of social cooperation is largely a product of our circum-stances and methods of social organization: in some social and geo-graphical settings, tall stature serves social purposes and may commandsocial interest (whether because of tall trees from which to gather fruit oran interest in basketball); in other contexts, short stature may be a socialvirtue (perhaps because we need to stoop to pick low crops or becausewe must spelunk for minerals). In some contexts, digital agility maymatter a great deal (whether because we need close-knit textiles or fasttypists), but in others, brute strength is prized over nimbleness. In somecontexts, mental agility may be quite salient but in others, fleetness offoot takes pride of place, et cetera.26

Second, the development of native potential into the particular real-ized ability that garners social interest usually depends mightily uponsocial investments of cultivation, teaching, nurturing, encouragement,and so forth, in addition to the requisite personal investments of timeand effort. Indeed, whether these social investments are made may alsomake a difference to whether persons come to possess the will and opti-mism necessary to make the personal investments of time and effort alsonecessary for the realization of native potential.27 That I happened to be

26. See Rawls, A Theory of Justice, p. 311; Rawls, “Basic Structure As Subject,” in PoliticalLiberalism, §5.

27. Rawls, A Theory of Justice, p. 74.


(or was not fortunate enough to be) the object of these social invest-ments is also arbitrary from a moral point of view; my immediate pos-session of the products of these social investments does not give me anyspecial claim to their fruits. It does not render my interest in pursuing myconception of the good any more important than others.

On this account, our equal interest in pursuing a conception of thegood motivates the initial presumption of an equal distribution ofincome and wealth and explains why talent is arbitrary with respect toincome and wealth. Because possession of a talent is arbitrary, it cannotserve as a reason for an unequal distribution. But, accepting that viewdoes not entail that there could not be other reasons for deviatingfrom the presumption.

Notice that this grounding of the presumption of equality is not rela-tional in nature. That is, it does not advocate distributive equality on thegrounds that equal distributions make for better relations, or prevent thedevelopment of insidious relations, between citizens—whether becausematerial inequalities generally breed distance, alienation, and envy orbecause they may do so when such inequalities benefit those alreadyfortunate in the natural and social lotteries. Nor is it an argument thatequal distributions, as such, are intrinsically valuable. Rather, the ‘arbi-trariness’ argument is nonrelational. Other things being equal, I have aclaim to as much of our social product as is compatible with your claim.Because my claim is no stronger or weaker than yours, our claims turnout to be the same, but not for reasons grounded in a concern about howincome distribution will affect the nature of our relations to one another.Although Rawls makes some important relational arguments for roughlyegalitarian distributions, those arguments turn upon the ways that sig-nificant inequalities and class differentials may create social divisionsthat interfere with well-functioning communities and politics and thatprovide grounds for inescapable envy.28 The relational arguments do notprovide the basis to object to less significant resource inequalities.

This nonrelational grounding of equality is more open to argumentsfor deviations from equal distributions than strict relational argumentsare, because the nonrelational grounding does not locate intrinsic valuein equal distributions as such. For example, it is compatible with anargument that an inequality constituting a Pareto-improvement would

28. See Rawls, A Theory of Justice, §§80, 81.


allow some of us to pursue our conceptions of the good more effectivelywithout diminishing others’ abilities to do so. So long as the distributionmethod was not designed to be directly or indirectly sensitive to talent(or, in other words, to permit talent to operate as a reason driving thedistribution), it would not be inconsistent with the internalization of thearbitrariness point or the consequent motivation for grounding equality.It would not be inconsistent even if it turned out that, e.g., the operationof a random allocation procedure yielding a Pareto-superior inequalityhappened, on a particular occasion, to favor the talented.

Nonetheless, even though the arbitrariness argument is compatiblewith some arguments for Pareto-improvements that yield distributiveinequalities, the arbitrariness argument places important limits uponthe arguments and mechanisms by which a Pareto-improvement may bemade. If I accept that my talents are, in these respects, morally arbitrarywith respect to the products of our joint social cooperation, then that factalone should influence how I bargain for salary in an employment con-text.29 This will be true even if I reject the idea that it is my direct personalresponsibility to ensure the least well off are as well off as possible and ifI instead accept the claim that that particular responsibility should bedischarged through the intelligent design of the Basic Structure.

I will illustrate with an analogous example concerning race. My racialclassification is entirely arbitrary with respect to my interest in and claimupon (all the) social primary goods.30 One’s legitimate expectations forprimary goods surely do not vary depending upon one’s race. Supposethe Basic Structure bans racial discrimination entirely31 and aims tosecure fair equality of opportunity for all citizens, partly in order to

29. The argument I give here provides one (different) ground for the very plausibleclaims Joshua Cohen makes, and that Kok-Chor Tan elaborates upon, about how justinstitutions will influence the culture and individuals’ motives and aspirations and therebyreduce the distance between Cohen’s position and Rawls’s self-understanding. See JoshuaCohen, “Taking People As They Are,” pp. 363–86; and Tan, “Justice and Personal Pursuits,”pp. 342–45.

30. Of course where there has been a history of racism, race may not be entirely irrel-evant to those primary goods whose distribution is intended to affect recognition andremedy for the past wrong. I put this aside because I take this case and the topic ofremedies generally (though not the hazard of racism) to be a component of nonidealtheory, albeit a very important one.

31. See my discussion of the ways in which the Two Principles, as written, do not fullyaccomplish this in “Race, Labor, and the Fair Equality of Opportunity Principle,” FordhamLaw Review 72 (2004): 1643–75.


eradicate the influence of race on citizens’ social prospects. Still, asCohen points out,32 the collective’s ability to eradicate the influence ofarbitrary factors through the direct and indirect effects of legislation andinstitutional and cultural design may be limited; racism may persist andexert influence in ways that are difficult to police.

If I am a citizen who believes in the distinction between the principlesgoverning the Basic Structure and the principles governing individualcitizens, I might then take it that the Basic Structure must be designed toeradicate racism and to provide fair equality of opportunity. I mightrecognize my obligation to support and comply with such institutions,but consistently believe that I need not make it among my personal ends(or one of the constraints regulating my pursuit of my ends) that, wherepossible, all of my actions actively work to eradicate racism or to advancefair equality of opportunity. Nor need the eradication of racism takelexical priority over my other ends. Nonetheless, if I accept the justifica-tions behind the two principles, I cannot attempt to leverage race to gainadvantage in economic relations (et alia).

Suppose I am offered a job in a workplace that, predominately, tradi-tionally has had people of my ethnicity or racial background, although itis now integrated. Even if I do not regard myself as governed directly bythe exact same anti-discrimination and fair opportunity principles thatgovern the Basic Structure, nonetheless I could not consistently requestthat my salary be 10 percent higher than all other workers at my positionif my (secret) reason for the request is that those workers have a differentracial identification. Such a request would be inconsistent with myacceptance of the principle that race is a morally arbitrary factor withrespect to income, wealth, and the general methods of divvying up ourjoint social product. I would be treating my race as a reason that I shouldbe paid more; that stance is inconsistent with my acknowledgment thatrace cannot function as a reason of that sort. For similar reasons, I wouldbe precluded from requesting a higher salary if I gathered, in the courseof interviewing, that the employer has a special fondness for me becauseof our shared racial identity and if, consequently, I believed my requestwould be granted because of this special affection. Even if the employerwere unaware of his implicit racism, I could not ask for a higher salary ifI believed it would be granted, intentionally or not, because the

32. Cohen, RJE, p. 355.


employer valued what I (correctly) regard as an irrelevant feature thatshould not influence people’s economic prospects.33 This request wouldbe inappropriate because I would be attempting to leverage a featurethat I regard as morally arbitrary and that I regard as irrelevant to theproper ordering of a social distribution. I would be involved in a flatinconsistency in these circumstances even if I rejected the idea that I hadmarching orders to promote fair equality of opportunity wheneverI was able.

If we are to treat possession of talents as arbitrary factors with respectto one’s claim on the joint social product, just as we are to treat race, thensimilarly I should not ask for, nor take advantage of, higher salariesoffered on account of my possession of a favored talent. Given equallabor burden (and whatever other adjustments we believe appropriate tothe social primary good metric), I should not demand more than anequal distribution principle would deliver merely because I know I haveleverage due to my unique talent or productivity. And, importantly,employers should not offer such higher salaries, for they would then betreating my talents as though they offered reasons for compensationwhen in fact they do not.

This articulation of the critique of incentives differs in two relatedways from Cohen’s strategy calling for direct internalization of the Dif-ference Principle: first, in the form of reasoning deployed, and second, in

33. Here, I assume that one is asking for the higher salary merely as a bargainingmaneuver to get more resources because they are useful. It is, obviously, a more complexsituation (one belonging to nonideal theory) if one believes that a higher salary is positivelywarranted, e.g., because of a higher labor burden, but that one’s employer would notrecognize the warrant, but would instead grant the higher salary from a poor motive. Inthat case, one would not be manipulating racism for advantage but rather gaining what oneis entitled to through nonideal means. It may still be a serious matter, especially if others ofa different race are not getting that to which they are entitled because they are not subjectto the employer’s (unjust) favor. Whether one should accept that to which one is entitledwhen given for poor reasons when others are unfairly denied the same entitlementsengages issues of solidarity; whether one ought to refuse may depend in part upon howcrucial the benefit to which one is entitled is, what the most effective strategy for politicalchange is, and what other communicative messages may be transmitted by one’s partakingor one’s refusal. These issues arise, for instance, around the question of whether different-sex couples should marry in jurisdictions where marriage is denied to same-sex couples.My interest in this example was provoked by William Rubenstein’s talk, “Why Do StraightCouples Invite Their Gay Friends to Their Weddings? And Why Do We Go? Research intothe Politics of Resistance,” Faculty Research Colloquium, LGBT Studies Program andCenter for the Study of Women, UCLA (November 1998).


its extension. Acceptance that talents are morally arbitrary limits whatreasons a citizen may act upon, as opposed to requiring that the citizenpositively advance a particular end, namely the maximal benefit of theleast well off. This limitation on the reasons a citizen in a well-orderedsociety may act upon may, in turn, benefit the least well off, but theconnection to the position of the least well off is indirect. Acceptance ofthis idea does not independently supply a duty personally to advance theposition of the least well off.

The difference in scope may also be brought out by a further variationon the case. If I decline a position because I prefer another, though myperforming the former would maximize the position of the least well off,my occupational choice need not run afoul of my internalization of thearbitrariness argument. Suppose I have the same range of occupationalchoices as others do, i.e., the same number of choices and a similarvariety of types of occupation, where this measure is sensitive to rela-tively objective measures of labor burden, e.g., difficulty, physical andmental challenge, monotony, labor schedule, degree of personal inter-action, and transparent effectiveness. In my set of choices, however, is anoccupation whose performance would improve the position of the leastwell off more than other options. If I turn it down because anotherposition subjectively appeals to me more, I have not—directly orindirectly—acted in a way that takes advantage of a relevant power oropportunity that I arbitrarily possess because of my talent. For, as Istipulated, everyone has the same range of choice as I do and, as I earlierargued, which jobs are available to us is not a morally arbitrary matter.

Suppose, having turned it down, I am reoffered the position for moremoney. The renewed, sweetened offer is motivated by the social desire toelicit the relevant work for the least well off in light of my refusal. May Ipermissibly take the incentive to do the job? No. I may permissibly takethe job; I may permissibly decline it. Neither choice would amount to orbe motivated by an illicit use of a power I possess by virtue of what, forpurposes of income and wealth, I should regard as happenstance. Butmy ability to garner more income and wealth than others is a pureproduct of my arbitrary possession and it would be impermissible for meto treat my possession of this talent as though it provided a warrant forhigher income.

This example may bring out some differences between my approachand Cohen’s. On Cohen’s account, there is a prima facie problem with


declining the job that better serves the least well off because it is incon-sistent with the internalization of the Difference Principle. On myview, there is no such problem—declining in itself does not involvetreating one’s talents as though they were personal assets to generateincome. Cohen’s view is then tempered by the invocation of a personalprerogative; mine is not (more on this later). On Cohen’s view, this pre-rogative may—in some circumstances, depending on the size of the pre-rogative and the degree of subjective burden—justify turning down thejob or justify accepting the enhanced salary for performing it. On myview, declining (in the situation described) violates no commitment ofjustice but accepting the enhanced salary does.

So, on my account, inequality generated by talent incentives shouldnot occur in a well-ordered society (at least so long as the incentiveswould be consciously offered and accepted as such). But, then, work thatcould benefit all of us and the least well off may not be performed. Theremay be a higher ratio of gardeners to doctors than is optimal and salaryincentives will not be a viable option to address the problem (althoughpresumably there is a limit to the number of gardening positions themarket will bear). Cohen addresses the problem by applying the Differ-ence Principle to individuals who would then influence their occupa-tional choice through the ethos (not through enforcement). I accept thatour hands may be tied in this way, although the effect is mitigated byother considerations, including that the principles of justice may requirea certain level of contribution to the joint enterprise. Further, motiva-tions of justice are not the only reasons citizens in a well-orderedsociety recognize. Other moral principles and motives, e.g., that ofbeneficence, may motivate citizens to pursue careers that serveimportant social needs.34

Still, it might be objected that it is overly rigid to accept that our handsare tied and, as a consequence, to forgo the opportunity to elicit sociallyuseful work through labor incentives. Where the work is of vital signifi-cance, perhaps it would be overly rigid. On the other hand, perhaps insuch circumstances, the citizenry’s motives of mutual care and concern

34. The degree of the problem may be contained by the phenomenon Joshua Cohenpoints to, namely that the social institutions of the Basic Structure will themselvesproduce some ethos of mutual concern. In this way, the Right may support the Good.Cohen, “Taking People As They Are,” pp. 375–80. See also Tan, “Justice and PersonalPursuits,” pp. 342–45.


would obviate the need for special incentives.35 In any case, it is worthunderscoring that the refusal to offer and the refusal to take suchincentives are not sacrifices borne in the name of an empty formality. Ifit is a cornerstone of our conception of equality that we regard ourselvesas equal in virtue of our mutual possession of our higher-order capaci-ties, that our lives are equally worth living, and that our claims to thesocial resources emanate from the qualities in virtue of which we aresocial and political equals, then it is rather a big deal consciously topermit an irrelevant quality to be the basis for a claim to social resources.To do so is to affirm one conception of equality but through our actionsto subvert that conception, and, in addition, to deliver a rather differentsymbolic message about our mutual relations to each other.

As Cohen points out in his discussion of freedom of occupation, thesituation resembles the current approach to organ donation in theUnited States. One may choose to donate. One may choose not todonate. Having the choice furthers significant values of personal integ-rity and bodily autonomy, although many people die as a consequenceof our affording this choice.36 Nonetheless, we do not require organdonation even where it would pose little risk to the donor (as with manycases of blood donation). Through state mechanisms, we also forbidsales of organs, even though sales might induce more organ transfer.Further, we also think, i.e., it is part of our ethos, that it is inappropriateto offer or to take money for organ transfers (other than that which woulddefray medical expenses).37 Part of the rationale for the rule against

35. Could the extra incentives be offered on the ground that the work is of vital impor-tance, rather than to reward talent? I take it that, on the Rawlsian view, that questionsuggests a distinction without a real difference. What it is for something to be a talent in thiscontext is for it to be a quality that is socially valued.

36. The main cause of deaths from lack of organs in the United States, however, isattributable to affording a choice to individuals (and their families) not to donate after theirdeaths. It is estimated that thousands of people die in the United States alone each yearbecause of this rule. Rather than adopt the market solutions that some scholars propose, Itake the view that while donation by the living should be voluntary, posthumous donationshould be mandatory, subject to an opt-out provision to accommodate religious and otherforms of conscientious objection.

37. Sociologically, this prohibition still holds in the United States for most majororgans, with the exception of reproductive material. Compensation for sperm transferpretty clearly exceeds the costs of transfer; with egg transfers, it is less clear and, interest-ingly, in some jurisdictions, the payment is framed as pure compensation for costsincurred and, in others, it is framed as a way young women may make money.


organ sales may be that allowing payment (either legally or morally)might lead to coercion or less severe forms of pressure that would bedifficult to police, but I take it (as does Cohen) that that is not the onlyreason against permitting sales. To wit, our organs are so intimatelyconnected to our bodily dignity that it would be inappropriate to com-modify our bodies this way. Money should be irrelevant to whether onekeeps or receives an organ. To introduce a market is to treat an irrelevantconsideration that we recognize as such as, nonetheless, relevant. Thatis flatly inconsistent.

Further, even if both parties to a sale consent, the introduction of amarket affects the environment everyone operates in, eliminating thespace in which money appropriately bears no role in one’s decisionsabout the fundamentals of one’s bodily integrity. Where markets springup, the social meaning of donation and retention changes—sometimes inways that are unhealthy.38 In the case of labor incentives, incentivizing thedeployment of talent symbolically undercuts the public commitment tothe foundation of equality and, in particular, the public denial that indi-vidual differences in properties and qualities that may have market valuehave any significance to one’s standing as a political and social equal.39

Although this version of the objection to labor incentives toes a ratherstrict line even against incentives offered to trump permissible decisionsto pursue occupations that do not best serve the least well off, the argu-ment does not condemn all Pareto-improvements that result in incomeinequality. Suppose we work within an equal distribution scheme (cali-brated to include labor burden) and produce a net product of X. We live

38. Of course, where practices of noncommodification have been exploited or workedto a discrete group’s disadvantage, marketizing may be socially beneficial. This, I take it, issome of the point of the wages-for-housework movement.

39. For that reason, the consent of the least well off would not be forthcoming (becauseit is inconsistent with their own internalization of the justification of the Difference Prin-ciple); even if it were, it would be insufficient to justify talent-based labor incentives giventhat the subversive effect on the foundations of equality affects everyone and hence thefinancially least well off are not the only relevant parties. Should the least well off (or othercitizens) choose, voluntarily, as individuals to give extra resources to talented people whodo more productive work that they would rather not (i.e., who choose to doctor rather thanto garden), that might be a different matter (assuming their accumulated effect does notgenerate significant relational inequalities). It may be argued that gifts represent exercisesof the capacity for a conception of the good by individuals as such (or, in other words,operate as consumption, not as aspects of production and the system of economic coop-eration) and that their provision and acceptance operate in the more private domain.


perfectly fine, comfortable, fulfilling lives. We are aware that we could allwork harder or more productively without strain, and, after compensat-ing for increased labor costs and burdens, we would produce X + Y, butthat X + Y is near the upper boundary of what we are capable of withoutstrain. Y, however, spread equally would give each of us little benefit andwould not motivate us to alter our way of life. But, Y, enjoyed by a subsetof us, would allow for a satisfying splurge, e.g., a lovely vacation; it wouldnot create overt, ongoing differences in our qualities of life of the sort thatcontribute to tensions and other sorts of relational defects. We’d all bewilling to put in the extra effort to produce X + Y if Y were distributed to asubset chosen randomly, whether because each of us wanted the chanceat the vacation or because we liked the idea that some of us would enjoythis rare good. Such a case does not satisfy the non-leximaximin interpre-tation of the Difference Principle, but it would satisfy leximaximin, andseems, prima facie, acceptable. Because the provision of the additionalreward does not hinge upon the exercise of any particular party’s talentbut rather is distributed randomly, it does not seem to conflict with theinternalization of the arbitrariness of talents argument.40

40. What about inequalities associated with entrepreneurial and other forms of invest-ment risk? See also Van Parijs, “Rawlsians, Christians and Patriots,” p. 315. Cohen seems toleave this possibility open. See Cohen, RJE, p. 34. It might be argued that if entrepreneursmade savvier decisions about socially beneficial investments if they personally absorbedsome of the upside and downside risks of their investment, then the Difference Principlewould allow the inequalities that might result. A case might be made that these inequalitiesdiffer from those ruled out by the Difference Principle and its presuppositions, to wit thatthe entrepreneurial incentive connects not to talent but to a general psychological propen-sity to pay sharper attention if one has a personal investment. Further, if entrepreneursshould (partially) absorb losses of poor risks, it is only fair for them to (partially) benefitfrom risks that pay off. A related feature that may distinguish the entrepreneurial case fromthe labor incentives Cohen focuses on is that the latter incentives are always to the benefitof the recipients and to the detriment of the least well off compared with the same laborunder conditions of equality. By contrast, permitting entrepreneurs to share some of therisk in their investments does not necessarily redound to the entrepreneurs’ ultimatebenefit. The entrepreneurs could be the least well off, if their investments bottom out, or inthe upper classes, if their investments pay off.

On the other hand, one might be inclined to argue that entrepreneurs should, as a matterof justice, already be inclined to pay great attention and make savvy decisions whether ornot they have anything extra at stake; to offer them incentives is to compensate them forsomething they have no legitimate claim to withhold. Further, those with good decision-making skills would be more likely to thrive, rendering the incentives a reward for talent.

On Cohen’s view, this issue might be partly resolved by asking how much is psychologi-cally possible given the full internalization of the Difference Principle and the goal of


Why doesn’t this scheme violate a general stricture on inequalitiesattributable to arbitrary causes? What could be more arbitrary thanwinning a lottery? My diffident suggestion, which partly reinforces myearlier intimation that ‘arbitrary’ does not directly refer to that caused byluck, is as follows: Suppose we all have an interest in the extra income,but only delivered in lumps; so, we cannot all enjoy the extra income wehave an interest in. An equal distribution would serve no purpose,assuming the inequality generated is insufficiently large to create rela-tional tensions. Given that we all have an equal interest in this scarcegood, by giving each of us an equal chance, a randomizing procedureresponds to our equal interest in a way that choosing on the basis of aquality (e.g., talent, contribution level, productivity) would not. Choos-ing on the basis of such a quality would suggest that there is somethingabout some of us that merits or justifies our receipt of the good in par-ticular; a randomizing procedure makes no suggestion.

iii. the distinct challenges the accounts face

Let me turn to a case about which Cohen’s canonical account offers aclear answer, whereas mine may not. It will allow us to explore how thedemandingness concern interacts with these different accounts and thelarger issues associated with the labor incentives problem.

I argued above that it does not necessarily violate the Difference Prin-ciple or its suppositions to decline a position that would maximize theposition of the least well off, assuming one’s range of options were com-parable to others. However, as I suggested above, in my own view, whattalents one possesses may not be arbitrary with respect to any particularposition of employment, but one’s interest in having a range of occupa-tions from which to choose may well be a good with respect to whichone’s talents would be arbitrary. (I realize others may disagree, but I willdevelop the example with this supposition in mind.) At any particulartime, one’s talents are often dispositive of the quality and diversity of

maximizing the position of the least well off, subject to a prerogative that might be directedat spacing out a bit (or not). One could adopt my view and think that although some degreeof work and attention is a precondition of participation in the joint social endeavor butbeyond that, the level of attention paid and risk one is willing to tolerate may be more amatter of the sort of choices for which one bears some responsibility and may not be wellregarded as entirely a manifestation of talent.


choices that are in fact available. Even if we try to ensure everyone has arange of diverse work choices over a lifetime, it may be difficult to ascer-tain at particular life stages and particular moments whether that prin-ciple is being generally satisfied or whether, in virtue of an arbitraryquality, one is being offered a wider range of satisfying choices thanothers have access to.

So, suppose I initiate an employment search and am offered a numberof jobs, one of which best serves the least well off and is adequatelysatisfying, but another of which is of greater interest to me. Suppose thenumber and qualitative range are greater than those available to manyothers competing at that time in the job market. For Cohen, it seems,justice requires taking the adequately satisfying position (subject towhatever the appropriate qualification is concerning the personal pre-rogative). On my account, matters are less clear. It might be said that if Iturn down an adequately satisfying position that better serves the leastwell off in order to take another, more personally rewarding position forwhich others do not have comparable opportunities, then I act contraryto my acceptance that talents are arbitrary from a moral point of view.For, in this case I might be thought to be taking advantage of an oppor-tunity that others do not have and gaining advantage because of afeature that is arbitrary from a moral point of view.

This case is not simple and in what follows I want to discuss why it ishard. First, it depends upon the expansion of the primary goods metricto include sensitivity to the range of choice of occupations and this inturn may depend on assessments about how that range is measured. Iam sympathetic to some such expansion, albeit using objective mea-sures, in part because justice cannot only be concerned with the outputsbut not the process of work. Further, I think its inclusion resonates withthe themes sounded in Rawls’s discussion of the Aristotelian Principle.On the other hand, its inclusion adds complexity to the primary goodsmetric that partly cuts against the motivation for the primary goodsmetric. I want to acknowledge these concerns as serious, but put themaside for my current purposes.

Second, this case raises a question about the way in which acceptanceof the idea that talents are arbitrary from a moral point of view shouldconstrain one’s behavior. In this case, unlike the other cases I have dis-cussed so far, the good to which one has special access is not one thatone has sought or accepted on insupportable grounds. One has not


made a claim to a good relying upon grounds that one agrees are arbi-trary or attempted to gain advantage over others actively using toolswhose possession is arbitrary from a moral point of view. Rather, one hasbeen offered something (a wider range of options than are available toothers that includes more personally rewarding employment). What isoffered, intrinsically, is not inconsistent with the internalization of thearbitrariness point by any particular agent. Rather, in this case thecontext in which the various offers from diverse origins have been madehas only arisen in light of a quality that is arbitrary from a moral point ofview. This raises the following question. Does internalization of the arbi-trariness point require that one not only abstain from seeking to gain byactively leveraging factors that are arbitrary, but also that one be vigilantto uncover and refuse all benefits that come one’s way because of factorsthat are arbitrary from a moral point of view?

This question brings us to one of the issues about demandingness thatarises when thinking about the incentives argument. I suspect at leasttwo demandingness issues lurk behind Cohen’s position on labor incen-tives: one shared with consequentialism and the second arising in virtueof the often hidden and nested operation of illicit factors.

The first demandingness problem emerges because Cohen’s positionapplies maximin to individuals and thereby confronts difficulties andobjections similar to that faced by consequentialism. It, like consequen-tialism, is fully directive.41 That is, for any decision one could make,assuming there are no ties, it yields a specific requirement about howone is to act. If among the actions I could take, one has a better effect onthe position of the least well off, it is what I am to take, no matter howgreat the cost to me or how small the impact on the least well off. Thismay be thought to be overly demanding on the individual because theubiquity of opportunities to advance an end that may never be satisfied(the least well off may always be better off) precludes the developmentand pursuit of other significant ends for compliant citizens. The interestin creating an environment in which compliant citizens may pursuetheir own independent ends may in part contribute, on the one hand, tothe Basic Structure objection or, on the other, to Cohen’s alternativestrategy of acknowledging a personal prerogative.

41. I introduce this term and develop this point in “Moral Autonomy and Agent-Centered Options,” Analysis 51 (1991): 44–54.


The account I have offered does not evoke the Basic Structure objec-tion. It does not rely on the claim that the Difference Principle itselfdirectly applies to individuals. At the same time, it coheres with a funda-mental insight of Cohen’s, namely that the endorsement of the DifferencePrinciple has implications for the behavior of individual citizens. But, it isnot because the Difference Principle (or a close cognate) directly appliesto them but because the acceptance of the justifications for the DifferencePrinciple restricts what motives may drive individual action. The arbi-trariness justification does not itself take a fully directive form; that is, thejustification for the Difference Principle is not that, morally, the least welloff should be as well off as possible, but rather that talents are arbitraryfrom a moral point of view. Thus, deviations from equality cannot bejustified by direct or indirect appeal to the possession and use of valuabletalents. Therefore, this version of the demandingness problem dissipates.There is no need to invoke a personal prerogative or to tackle its difficul-ties, including how large it should be, whether it may be invoked to serveany end or only some ends, and so on. Instead, although citizens may notact on the motive to leverage talents and may have to ensure that whatappear to be innocuous motives on their part (e.g., sheer preference) arenot in fact illicit motives in disguise, they may act on a variety of othermotives that are compatible with the arbitrariness argument. Freedomfrom a fully directive principle, as well as the permissibility of acting on apanoply of other motives and ends, answers the demandingness concernwithout lending the appearance of granting a holiday from moral require-ments or the moral equivalent of the occasional ‘get out of jail free’ card.

A second variation of the demandingness problem attaches to bothmy account and Cohen’s account, however, regarding the scope of indi-vidual responsibility for policing the influence of morally arbitraryfactors on one’s income and wealth. I’ve made the argument that onemay not actively accept or present possession of a talent as a reason forincome (or similar social primary goods whose good for us is unrelatedto the level of our talent). Moreover, for like reasons, one may not acqui-esce in another person’s evidently taking one’s talent to operate as areason for income. But that does not settle the question whether one isconstrained from accepting benefits that one has not illicitly solicitedmerely when one suspects their availability is due to the causal influenceof one’s talents, but they do not wear their provenance openly, and thereare no ready alternatives.


The situation may be the one more commonly faced than the per-sonal negotiations Cohen initially focused upon. Incentive paymentsoften are not the products of direct demands in face-to-face bargainingsituations. They often arise indirectly and through the operation ofgross structural mechanisms rather than fine-grained reactions. Assome have celebrated and others have lamented, the individualizedcontract has, by and large, been replaced by standard-form terms. Sothis raises the question of whether internalization of the arbitrarinessargument requires that one police the causal history of all offersand benefits and that one refuse all offers and benefits withsuspect credentials. Such a requirement raises a different sort ofdemandingness issue, one that may motivate the Basic Structure movein a different way.

Let me illustrate by returning to the example about race. It is notespecially or unreasonably burdensome to require citizens not to act onracist motives, not to present racist reasons for claims, not to seek to takeadvantage of others’ racism, and to develop sufficient self-knowledge touncover and police one’s true motives, even if they are not transparenton the surface. It may present more of a burden on individuals todemand they investigate and discern why various opportunities areavailable to them; to refuse those opportunities even when the alterna-tives are noticeably worse; to disentangle themselves from all structuresthat provide standard, reasonable goods but contingently have racistorigins or racist effects; and to do so on one’s own in an uncoordinatedfashion in the face of uncertainty produced by the epistemic unclarity ofwhat and how much to do and what others are doing. The burdens arepartly that such efforts are extremely attention-, energy-, and time-consuming, partly that a citizen whose actions and motives themselveshave been innocent must bear this responsibility, and partly that it mayrequire constant creativity when there are no clearly satisfactory options.Similar burdens present themselves if we ask individuals to try to assesswhether their salary levels reflect appropriate compensation for (rela-tive) labor burden, appropriate compensation for a more limited rangeof labor opportunities or labor satisfaction, early adjustments forpending cost of living increases and inflation, or unreasonable compen-sation for talent. Even assuming we agree it is unreasonable to expectindividuals to devote indefinite amounts of energy to the investigatorytask, there are still burdens associated with attempting to assess what the


appropriate balance is, other things equal, and whether that balanceshould be altered depending on others’ actions.

One response to these concerns is to take the view that the BasicStructure should handle these problems. The Basic Structure shouldattempt to control the effects of the unintentional, causal effect of talentson markets, and individuals should be spared the task of sorting outthese issues and bearing overwhelming and possibly inequitableburdens themselves.42 That response may seem unsatisfying, however,especially if this case really is the common case (and negotiation theexception) and if we are aware that the government cannot tackle theseburdens well on its own. If we agree that talents are arbitrary with respectto income distributions and hence people or structures who directly orindirectly, consciously or unconsciously, treat them as nonarbitrary areunjust, then we may be pushed to thinking that the Basic Structuresolution plus a bar on actively taking talents to supply a reason leavesgaps of injustice; individual citizens who internalize the arbitrarinessargument will confront potentially overwhelming demands to ensurethat they do not intentionally or unintentionally participate in takingadvantage of an arbitrary characteristic. It may seem, therefore, thateither my reconfigured critique of labor incentives again faces thedemandingness objection or it must incorporate something likethe device of the personal prerogative and confront the difficultiesassociated with it.

This situation, of course, is not new or unique. We face such difficul-ties all the time, in nonideal circumstances: vegans wonder whethertheir food or wine depended on animal products (was the wine filteredthrough egg whites or the sugar refined using bone-derived charcoal?);vegetarians wonder whether the pans and grills are also used for meat;everyone has reason to wonder whether their consumer productsemerged from pathways of fair labor and sustainable living or not.

42. Thus, I share some of Andrew Williams’s concerns about epistemic demanding-ness. See Williams, pp. 239–45. But, I do not think the problem is well conceptualized as oneof the violations of the publicity principle because I disagree that all requirements of justicemust be mutually verifiable. See above note 22. When failures of transparency exacerbatethe burdens of investigation and make it extremely difficult for citizens to know what theirduties are, however, it may be overly demanding to locate the implementation responsi-bility in individuals.


But, it is not evident to me that the choices are as dichotomous asoutlined above: namely, that either we, as individuals, must labor underoverwhelming demands to investigate the provenance of everything weare offered or consume and must personally invent new jobs and prod-ucts when no satisfactory ones emerge, or that our freedom from thesedemands lies in a personal prerogative to ignore, in part, what otherwisewould be legitimate moral demands. We might instead ask whetherthe form of our duties not to benefit from opaque mechanisms thatprivilege talent takes the same form as our duty not to take advantageof talent directly.43

I tentatively suggest not. We should not actively treat something as areason that we accept is not a reason. That duty seems not to admit ofexception or to be subject to a prerogative. So if we are indeed requirednot to kill animals for food, we cannot order meat or order food knowingthat it will be infused with meat products; this would be to treat aproduct as choice-worthy that we know is not. Likewise, I cannot engagein just a little racism or conscious collaboration with racists because Ineed the money for a really important personal project. I cannot takeadvantage of my possession of my talent directly because that would beto treat it as offering a reason where it does not. But where our relationsto illicit factors are complex, indirect, and opaque or where there are notclear alternatives on the surface, it is less clear to me that accepting abenefit whose causal history may be infused by the influence of illicitfactors violates the stricture not to treat something as a reason that is nota reason. I am not in such cases choosing to take advantage of factors Ishould not; it is more that I am overwhelmed by them.

The structure of the problem seems to demand a more collective,coordinated response. If one knows that illicit factors work in the back-ground and do so for everyone, then one has reason to support coordi-nated efforts to control the influence of these factors. Notably, thegovernment isn’t the only collective organization that may do so. Orga-nized boycotts, for example, may make certain hidden factors salientand exert pressure that provides a more uniform response and moreuniform burdens on citizens. Boycotts of certain products may thenplace pressure on the supply lines of others, initiating reform throughthe power of suggestion and precedent.

43. Cf. A. J. Julius, “Basic Structure and the Value of Equality,” p. 337ff.


In labor markets, the elements of the Basic Structure may not be assimple as employers responding to market pressures and market regu-lations. Unions, for example, may play a role in establishing practicesthat constrain the illicit influence of talent on salary (and race andgender) by, for instance, establishing standard pay scales (thus eliminat-ing opportunities and temptations for individual bargaining or foremployer initiative to offering inequality-inducing incentives). Althoughunions are mostly associated with efforts to garner greater benefits forworkers, which they do, they also counter pressure from markets andemployers to treat workers differentially and they may serve as inlets ofinformation, closer to workers’ own experience, to help distinguish whatclaims rest upon higher labor burden and what claims originate frommarket pressures reflecting talent distributions.

I will end by reframing the fledgling point I have been pursuing in thelast few pages. I have, in essence, been arguing that, in the Rawlsianwell-ordered society, there is a perfect duty to refrain from actively treat-ing talents as though they provided reasons for higher or lesser income.I have suggested the matter is more difficult with respect to how weshould conceive of what additional obligations we have to avoid merelybenefiting from the pressure arbitrary factors may exert, when this exer-tion is without design and operates in ways that may be opaque, nearlyubiquitous, or otherwise very difficult to avoid. If we do conceive of theduty not to benefit from practices that reflect arbitrary factors as aperfect one like the duty not to actively treat talents as though theysupplied reasons, then we will encounter a hefty version of the demand-ingness problem, and alongside it, the difficult question of whetherand how a personal prerogative really could temper the demands ofa perfect duty.

However, the concerns that underlie both the arbitrariness argumentand the demandingness problem—the interests in ensuring that themoral and political structure make sufficient room for each of us topursue our own conception of the good and to live the life of a free andequal person—give us some reason to think that the relevant dutycouldn’t be a perfect duty and rather, it must take something like theshape of an imperfect duty.

This lands us in familiar, albeit still murky, territory. We always havesome reason to promote the value underwriting an imperfect duty,but we need not, and could not, always promote it on every possible


occasion. But, as individuals, we cannot ignore it entirely. As with benefi-cence, our imperfect duties may be specifically triggered on discreteoccasions when the values at stake are especially evident or salient. Aswith beneficence, our constant interest in the underlying value gives usreason to try to promote social, collective structures that will attend tothis value where we as individuals will fall short of promoting itadequately, whether for good reasons or poor reasons. And as withbeneficence, these social, collective structures may take a multiplicity offorms, both governmental and nongovernmental.

On this understanding of the problem, the issues we confront within aRawlsian well-ordered society are more continuous with the issues weconfront in nonideal theory—a rather welcome result. It suggests thatwhat we learn in thinking about labor incentives within a society gov-erned by the two principles may cross-fertilize how we now confrontmore contemporary problems in which we benefit from structures that,unfortunately, bear little resemblance to those we’d encounter in a morejust society, and vice versa.44

44. Indeed, Cohen’s intervention was initially introduced as a criticism not only of aparticular suggestion by Rawls but also of Thatcherite tax cuts and contemporary interper-sonal manifestations of class dynamics. See Cohen, RJE, p. 34ff.


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SEANA VALENTINE SHIFFRIN Incentives, Motives, and Talentsshaslang/mprg/ShiffrinIMT.pdf · 2010. 6. 16. · Incentives, Motives, and Talents papa_1180 111..142 SEANA VALENTINE SHIFFRIN