Justice: Realized or Guaranteed?

By On August 16, 2012 · 77 Comments · In Academic Philosophy, Libertarianism, Rights Theory, Social Justice

We have discussed at length the differences between bleeding-heart libertarians and liberal egalitarians. Let us assume that both camps agree that political institutions must take centrally into account the plight of the poor and vulnerable. The difference between the two camps is sometimes cast in empirical terms: libertarians think that free markets will help the poor more than any alternatives; liberal egalitarian, in contrast, believe that strong regulation of markets and extensive transfer payments will help the poor more than any alternatives.

However, I wish to suggest another way of identifying the disagreement between both camps. To the libertarian who claims that free markets will help the poor, the liberal egalitarian responds that, even if this is true, the rules that govern the market do not guarantee to the poor what is justly due them.  Free markets happen to benefit the poor, and in this sense the market rules fail to fulfill an essential function of the state: to guarantee justice. This may be what Rawls has in mind when he criticizes laissez faire (Justice as Fairness, A Restatement, p. 137), and is certainly a centerpiece of Kant’s conception of the state. For Kant, the state’s job is to secure the rightful condition. If the rightful condition includes, say, a minimal income that lifts people from poverty (or secures meaningful positive liberty, or whatever), then the state must provide that minimal income.

We can see the point clearly when we think about a less controversial function of the state: to promulgate and enforce the criminal law. Here the state cannot allow the “market” (meaning self-help and private enforcement characteristic of the state of nature) to protect the rights of persons, because, as Hobbes, Locke, and Kant say, in that situation we are hostage to the contingent alignment of social forces and differential strength. Our rights are insecure. The state emerges precisely to guarantee our rights, to make them secure, determinate, and impartially enforceable.

The liberal egalitarian, following a similar line of reasoning, may argue that the claims of justice that the poor and vulnerable have cannot be left to the vagaries of the market. Just as our rights against aggression must be secured, so our claims to distributive justice must be secured. The market may well realize just outcomes, but does not guarantee them.

There are several ways in which the libertarian can respond. One is to say that there are no redistributive claims founded on justice, á la Lomasky. Another is to say that guarantees have costs that often make them counterproductive, á la Schmidtz. But these are matters for another post.

 
  • http://www.facebook.com/profile.php?id=1702318862 Jason Brennan

    Another response is to say that legal guarantees are no guarantee.

    • Fernando Teson

      Yes.

  • Marcus_V

    My non-philosopher’s response is, “Well, what kind of guarantee do you want?” I think history has shown pretty conclusively that the mere existence of state structures also fails to guarantee justice. And I’d rather like to hear why we think that justice *can* be guaranteed in the first place.

    Is there a term-of-art subtlety that I’m missing, as a non-philosopher?

    • Fernando Teson

      Agreed, but it’s a different point. Egalitarians are typically optimistic about what government can do.

      • Marcus_V

        If it’s a different point, that’s only because it is a more fundamental and important point. Any time anyone offers or demands a guarantee, the first question must be, “Is such a guarantee possible?”

  • http://www.facebook.com/people/Michael-Wiebe/1440756026 Michael Wiebe

    My response is to say that there are no guarantees in real life. There are ends, and there are means for achieving them. Some means are better than others at achieving a given end, and this is as close as we’ll get to an actual guarantee. Even government, with its power of legal coercion, cannot guarantee anything.

    Instead of searching for some mythical guarantee, the proper task is to engage in comparative analysis and select those means that most reliably and effectively achieve our ends.

    • Sean II

      On the contrary, government can always guarantee that its power of legal coercion will be misused.

      • Fernando Teson

        I agree. It’s a different argument, though.

        • Sean II

          Is it, though? If any action the state can take to guarantee something actually produces opposite or otherwise harmful results, I think that is very much a part of the argument.

          Take the extreme example: if we guaranteed everyone a passive income of $150,000 a year, we’d end up with a total economic collapse. GDP would = whatever was produced by accident and nothing more.

          But how can this be irrelevant? If the egalitarian attempt to guarantee something by decree has the effect of guaranteeing it WON’T actually happen in reality, then shouldn’t the whole question be reframed. Shouldn’t the argument be:

          “Justice: Realized Without Being Guaranteed, or Guaranteed and Thereby Not Realized (as a Probable and Foreseable Consequence of the Guarantee Itself.)” I realize that doesn’t fit on the marquee, but…

  • http://frankhecker.com/ Frank Hecker

    I’m sympathetic to Marcus_V and Jason Brennan’s comments. Maybe it’s just me, but I find the “guaranteed” vs. “realized” distinction somewhat fuzzy and not necessarily useful. Certainly there is no “guarantee” possible in the sense of ensuring that something will happen with absolute certainty no matter what; the most one can offer is an “intent to ensure”. And just because some state of affairs (like capitalism producing broad-based prosperity) has been realized up to the present-day does not in and of itself justify our believing it will continue to be the case if/when circumstances change. (“Past performance is no indication of future returns”, as they saying goes.) So there are no real certainties either way.

    I think a more useful distinction in many cases is to what extent we should rely on the workings of a spontaneous order vs. taking active measures to address perceived injustices. (Although I don’t think spontaneous orders just drop from the sky; they’re the result of many cumulative decisions over time, and we could certainly try tweaking some of the underlying structures if things aren’t working out as we like.)

    • Fernando Teson

      Well, surely you believe that guarantee is important in the criminal law, that is, that the state has an obligation to try to vindicate your rights against malfeasors. My point is that the idea of the state as guarantor of justice may be used by critics of the view (prominent in people like Milton Friegman, for example) that the market generally helps the poor. They will say that, regardless of market outcomes, the state must guarantee what justice requires, and this well may be mandatory redistribution. I’m not agreeing or disagreeing with this, it’s just a conceptual point.

      • http://frankhecker.com/ Frank Hecker

        Thanks for the reply. Between your and Zack Dergen’s comments I do now understand the distinction you’re trying to make. I still have general concerns about where this is always a useful distinction, and what implications it has in practice, but that’s something I need to think more about.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    I am a bit rusty on Kant, but it seems to me that you are reading Kant through Rawlsian distorting spectacles. For Kant, it is true, the government should secure what is right; but for Kant this means securing people’s rights. It does not mean being a nanny to the poor, redistributing wealth, or securing people their just deserts. Kant does not think the government can secure people their just deserts. He argues that God and life after death are necessary to ensure that we each get our just deserts in the next world, because we cannot get them in this one.

    Excuse me not rummaging through the ‘Metaphysics of Morals,’ ‘Critique of Practical Reason’ and ‘Fundamental Principles of the Metaphysics of Ethics.’ Someone more au fait with this stuff may be able to improve upon or correct my comment.

    • Fernando Teson

      Danny, thank you for your comment. A quick point in clarification. I didn’t say that Kant requires wide redistribution of wealth –in fact, I’m arguing the opposite in an article I’m writing with Bas van der Vossen. I said that IF a liberal egalitarian thinks that justice requires a minimal income, THEN they may say that the state ought to guarantee it, and oppose for that reason the libertarian proposal to leave it to the market, because the marjet doesn’t guarantee anything. Put differently: if people are owed X, then X is morally required, mandatory. It is not enough (for liberal egalitarians, of which I’m not one) that we can predict that markets will help the poor.

  • http://www.facebook.com/avery.kolers Avery Kolers

    My sense is that this is either backwards or applies to
    both sides. It is Nozick who draws the baseline at how well-off we
    would be in the State of Nature, and says everyone is entitled to a guaranteed minimum (income, or well-being, or something) at that level. He doubts the baseline would be very high, and thinks
    everyone is almost certain to be above it in a market economy, but those are empirical questions; the fact is, he is for a guaranteed minimum. If anything, Rawls’s emphasis on designing institutions that *realize* (pure procedural) justice seems less about a guaranteed minimum than Nozick’s. The difference has to do with whether the state cares about the background institutions and aims to reduce the entropy or stratification that occurs when initially just background conditions are left to themselves, and justice devolves into (what Rawls would view as) injustice. Whether just upshots can come from just starting points via just steps is a genuine normative disagreement between the two, but I don’t see that it has to do with guarantees.

    • Fernando Teson

      I was trying to identify the uneasiness that liberal egalitarians have with the predictions of libertarians about the beneficial outcomes of free markets. The Kantian idea here is that whatever is required by justice (for example, the protection of human rights) must be guaranteed by the state. IF (and it’s a big if) redistribution of wealth is required by justice, then it must likewise be guaranteed by the state, and not left to the market. I do not endorse or reject the argument in the post; I just identify the move.

  • http://www.facebook.com/zack.dergen Zack Dergen

    To those who are getting caught up on the realized/guaranteed distinction, perhaps it is simply this: an institution that merely realizes a particular outcome cannot be said to have malfunctioned when it fails to realize that outcome; an institution that guarantees a particular outcome, however, can be said to have malfunctioned when it fails to realize that outcome. The guarantee is a promise that the institution is blameworthy for breaking.

    This is the point of the comparison with criminal law. The state cannot make it the case that our rights are never violated in the first place, but that is immaterial. The guarantee is a promise to minimize such violations and to allow those violations that do occur to be redressed (this being what it means to call a right “enforceable”). Moreover, the state is blameworthy when it fails to offer such redress or erroneously grants it to those who do not deserve it.

    So long as we do not equivocate on “guarantee,” then, it seems that the distinction can be made in a sensible way.

    • Sean II

      I’m trying to think of anything the market does that’s even half as bad as the state’s criminal justice system.

      Here we have a mechanism that prevents only non-criminals from committing crimes, because its deterrent totally lacks the required ingredients of celerity, certainty, and severity. Sure, I can figure out that it’s a bad idea to rob and kill you, but the guy you have to worry about is 6’3″ with an 8th grade education and a 79 IQ. The state sends no message clear enough for him to understand.
      And when crimes do occur, it provides no compensation to victims. It doesn’t pay you back for the property you lost, nor does it indemnify the wounded or the survivors of the dead. In short, it doesn’t do the things which an insurer or a guarantor would be minimally expected to do, in any other area of life. It merely promises to go out and ruin someone else’s life by way of revenge.
      In that service, it makes surprisingly frequent and catastrophic mistakes, for which it unsurprisingly fails either to apologize or to pay. Inside its prisons, it has created a grotesque experiment whose most notable result is a continual advancement in the science of racism, rape, violence, and terror.

      So remind me again…what is the comparison with criminal law supposed to show here?

      • Fernando Teson

        I sympathize with what you say. I was making a conceptual point: for some people, the role of the state is to guarantee justice. Many people agree with this point with regard to the criminal law and other areas of social life. But libertarians tend to think that this notion does not carry over to economic matters, where we should the market determine outcomes. The liberal egalitarian may dispute this, and say that, just as the state ought to guarantee our basic human rights, so it ought to guarantee the resources that (supposedly) we are owed in justice. In the post I do not endorse or reject this argument; I just identify it. Now, of course all this is pointless if, as you say, the state cannot really guarantee anything.

        • Sean II

          I (and I think many other commenters) do understand the point you were trying to make. Probably that is what a lot of egalitarians think, and you have gone a long way to explaining why they so often remain totally unmoved by evidence of the market’s success in promoting even their own alleged goals.

          I’m sorry that I (and some others) immediately skipped on to the next step, and started trying to argue with those pesky egalitarians who weren’t actually in the room to defend their demand for guarantees. That’s certainly what I was doing, but I promise it’s not because I was deaf to the meaning of your post.

  • Mark Pennington

    Isn’t the key distinction between the justice involved in securing person and property as opposed to the requirements of Rawlsian justice, that in the former case it is relatively easy to see whether justice has been done to the victim of a mugging. By contrast, it is next to impossible for agents of the state (or anyone else) to calculate which distribution of income secures the difference principle. There is no way for the state to know whether it is acting justly or otherwise, in which case to speak of the state guaranteeing justice is meaningless.

    • Fernando Teson

      Agreed. But that is a different issue. The precise disagreement I tried to identify is whether institutions that facilitate an outcome are acceptable enough for those who say that such outcome is required by justice.

  • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

    It seem to me that most of the folks who write for this blog live in an intellectual world in which there are only two species of political philosophers: libertarians and Rawlsian liberals. What about all of the Humeans, Marxists, Aristotelians, Hobbesians, Thomists, Benthamites and other characters?

    To grind my own Humean axe, couldn’t it be that to the extent that you and the high liberals both seem to believe in some sorts of natural claims, rights, moral laws or whatnot that exist prior to human conventions and positive law, then you are both wrong? Perhaps there are just human desires and affections, and the very human and historically contingent institutions that have been forged in the struggle for satisfaction and order?

    • Fernando Teson

      Yes, it is possible.

      • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

        And yet you never deign to discuss these critical views. What entitles you to your faith in natural rights?

        • Fernando Teson

          I just think there are certain things that are part of the moral fabric of the universe, and that that includes some rules about how to treat each other. If someone says that the prohibition on deliberately inflicting pain on innocent children is a mere matter of convention, I think he has the problem, not me. But I agree with you: that belief is not susceptible of further proof.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Well, that makes me think that what you guys are doing is more like revealed theology than philosophy Fernando.

            Since human beings are obviously rule-making and requirement-imposing animals, the hypothesis that attributions of rule-generation or rule-inherence to non-human aspects of the universe are a kind of projective anthropomorphism naturally suggests itself, and should be taken more seriously than you seem willing to do. Shouldn’t we be skeptical by now of notions like “the moral fabric of the universe”, “categorical imperatives”, “the law of nature” and the like? They seem analogous to notions like “unmoved movers” and “the divine architect” – inherently misguided and muddled superstitions that improperly transpose aspects of human existence onto non-human entities.

            We almost all have a natural aversion of the infliction of pain in children, which is part of the reason we establish and enforce rules against it. So the rule here is not just some sort of capricious convention, but an outgrowth of our deepest levels of affect and desire. I don’t see what is added by positing some non-human legitimizer in this area. We don’t need a warrant or directive from “the universe” to dignify or legitimize our hatred of harming children. Reasoning is necessary to connect the contingent phenomena of human life with our fundamental loves and hates, drives and aversions. But those fundamental drives are the measure against which everything else is evaluated. There is no meaningful possibility of them being unconditionally “bad” or “wrong”.

            Human nature doesn’t need a non-human authority to validate human nature.

          • MARK_D_FRIEDMAN

            So, then, if someone actually does enjoy torturing children you would not say he/she is doing something objectively evil, i.e. something contrary to the moral laws of the universe? Rather, you would say that that person simply fails, unlike the rest of us, “to connect the contingent phenomena of human life with our fundamental loves and hates, drives and aversions.” If not this, what are you saying in such cases?

          • good_in_theory

            Why does it matter if what he is doing is “objectively” evil? What’s inadequate with being subjectively evil?

          • MARK_D_FRIEDMAN

            If torturing children or not is like emjoying Scotch whiskey or not, then there is not much basis for condemning and punishing those who enjoy torturing.

          • good_in_theory

            Well, it is like enjoying scotch whiskey, and it is also not like enjoying scotch whiskey.

            But that it is in some ways like enjoying scotch doesn’t really tell me whether there is little or lots of foundation for condemning and punishing others.

            I mean, schools are like prisons, in a lot of ways. And yet…

          • MARK_D_FRIEDMAN

            In my view, a person who willfully violates the moral law in some fundamental way, such as torturing children, simply deserves severe punishment. Just like the person who does something superogatory deserves a reward (at least praise). I think its just that simple. On the other hand, given your views, I don’t know how you could justify punishment in any coherent way.

          • good_in_theory

            Well, I’m with Dan.

            The notion that people “deserve” anything because the moral fabric of the universe says so strikes me as absurd. Desert is a convention.

          • MARK_D_FRIEDMAN

            You are welcome to your opinion about desert. Nevertheless it is an explanation that justifies punishment, and is thought sound by many academic philosophers. Do you deny that punishment is justified under some circumstances?
            So now, let me repeat my challenge, which you just ignored: “On the other hand, given your views, I don’t know how you could justify punishment in any coherent way.”

          • good_in_theory

            Asking me to justify punishment in a coherent way strikes me as a rather loaded question. There are various intersubjective agreement based models of justification, in the vein of Habermas. Those could work.

          • MARK_D_FRIEDMAN

            Gee, and I thought you were “good in theory.” If this strikes you as a “loaded question,” than I guess not.

          • good_in_theory

            It’s a question that’s much too large for a blog comment.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            If enjoying Scotch whiskey were as important and urgent a need for most of us as caring for our loved ones and preventing the suffering of children, then we would have all the justification we need for taking action against those who thwart that need. But since it’s not, the example is frivolous.

          • MARK_D_FRIEDMAN

            Please see my example about arguing over slavery in the antebellum South. What is your justification there?

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            No. Our hatred of torturing children is not based primarily on instrumental reasoning – on the recognition that torturing children is instrumentally destructive or counterproductive in of other things we value. The suffering of children is something most us hate directly and non-instrumentally. If some deviant human being takes pleasure in torturing children, then the existence and liberty of such a person threatens our values. If we hate the suffering of children we are naturally going to hate things that cause the suffering of children, and seek to prevent their successful operation.

            But if someone tells me that the main reason they seek to thwart the torturing of children is not because they non-instrumentally hate the suffering of children, and hate the things and people that cause it, but because they have concluded that the suffering of children is “objectively bad” – or that that there is an uncreated law according to which the torturing of children is “objectively wrong” – then I would find their motivational system almost as repellent as worrisome as the motivational system of the torturer.

          • MARK_D_FRIEDMAN

            Sorry, your answer begs the qustion. You say, “If some deviant human being takes pleasure in torturing children, then the existence and liberty of such a person threatens our values.” But why should we enforce our values, if they are just some random values among many. If people like vanillia ice cream and I like chocolate–then no big deal, right?

          • good_in_theory

            I don’t really understand why you think non-objective immediately reduces to ‘purely aesthetic taste.’

          • MARK_D_FRIEDMAN

            You should re-read what I actually wrote. I did NOT say that “non-objective imediately reduces to aesthetics,” because some schools of thought consider aesthetics to also be an objective matter. I said that Dan’s views seem to reduce to “like/not like scotch,” because there clearly is no right or wrong there, i.e. no basis on which to criticize one position or the other..

          • good_in_theory

            I didn’t say that either.

            So, let’s put it another way.

            Why does non-objective reduce to “no basis on which to criticize one position or the other.”

            The false dilemma seems to be “objective” or “individual whimsy.”

          • MARK_D_FRIEDMAN

            Is this a serious question? If moral judgments are analogous to “like/not like scotch whiskey,” how can we criticize a person for not sharing our (purely subjective) preferences?

          • good_in_theory

            Rather, if one takes the analogy between moral judgments and judgments of taste in the way which you do, then there is no possibility for cirticism and moral judgments are simply preferences.

            If we only take the analogy so far as to mean that both are subjective, but not that both are “tastes” or “whimsies” or “preferences,” because “subjective” also contains “rules” and “norms” and “conventions” &etc, then there really isn’t a problem in establishing grounds for criticism.

          • MARK_D_FRIEDMAN

            And, what pray tell, gives these subjective rules and norms and conventions teeth? Why should I care about other people’s norms? You, like Dan, simply beg the question.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            What kind of teeth are you looking for? What teeth are to be found in the obscure and unconformable claim that your preferred norms are part of the moral fabric of the universe.

          • MARK_D_FRIEDMAN

            Perhaps “obscure an uncomfortable” to you, but not to me and, I daresay, your typical adult, and not to many if not most moral philosophers.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Mark, we desire some things instrumentally and other things non-instrumentally. If you and I are substantially identical in our most enduring desires and aversions, which are grounded in non-instrumental desires, then we have a strong basis on which to stand together and argue about subsidiary and instrumental aims.

            If human life were a menagerie of different species each with very different fundamental desires, then our social lives would be chaotic and impossible. But we are all fairly similar at bottom.

            But it’s true that if some unusual human individual is radically different from the rest of us in affect, then there is no basis for reasoning with him. Our only tool then for preventing his disruption of our preferred social norms and our achievement of the kind of world the rest of us are agreed in pursuing consists in various coercive methods of prevention and deterrence.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Your fundamental values, loves and hates aren’t random. They are part of your nature, and are shared with the majority of other human beings. And the non-suffering of children is obviously more important to you than your ice cream selections, as it is to most of us. You are suggesting you need to find some sort of unconditional, preference-independent “should” or reason to justify you or vindicate you in the pursuit of what is most important to you. But there can’t be such a transcendent motivator. No matter what sort of “should” claim anyone offers you, and no matter what sort of metaphysical status someone claims it possesses, it can’t have motivational force for you unless you are already disposed to respond to things that have that status. It seems strange to me that people would find such alleged and perennially obscure items of metaphysical baggage more motivating than their deepest natural loves and hates, or think that they do not have a proper license for action until the god of moral metaphysics throws down a message from Olympus giving them the authoritative directive they need not to harm children.

          • MARK_D_FRIEDMAN

            You say: “No matter what sort of “should” claim anyone offers you, and no matter what sort of metaphysical status someone claims it possesses, it can’t have motivational force for you unless you are already disposed to respond to things that have that status.” But this doesn’t address the objective/subjective argument. What you just said is equally true about the laws of math and science. I could theoretically go through life not caring a whit about either. I simply do not recognize their authority. But this attitude of mine doesn’t imply that the laws of math and science are not objective, i.e. that their truth is independent of my recognition.

            Let’s make this concrete. Suppose that we each, with our respective normative theories, live in the antebellum South. Everyone in our community, except us, thinks that slavery is just peachy keen. We wish to persuade them otherwise. My argument: “You like to think of yourself as a moral person, but you are not because what you are doing violates the moral law of the universe.” Your argument….?

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            My argument would be to try to demonstrate various kinds of causal connections between the slaveholders’ current practices and other aims the slaveholders are already committed to pursuing, norms the slaveholders are already committed to enforcing, or other deep loves and hates the slaveholders already possess. The primary appeal would be to the evident suffering and misery caused by enslavement, and to their humane opposition to human suffering. But if no such arguments are available, and if their affections can’t be reached, then there is no other way of altering their behavior but to employ coercive means.

            I doubt appeals to the moral law of the universe would be any more availing than appeals to the dictates of Ba’al or appeals to the hidden prophecies of the Oracle of Delphi. My antagonists would naturally wonder where I came by this prophetic knowledge of these laws, and would also wonder why it is that they should find the laws of Ba’al, the Oracle or “the universe” motivating. I doubt any claims I made about my supposed “intuitions” would impress them, although making such claims might make me feel good about myself..

          • MARK_D_FRIEDMAN

            Nice try, but I don’t accept your “argument” as an argument. Rather, it is simply an appeal to the slaveholders to pay attention to certain facts that you hope they overlooked the first time around. I think the slaveholder already knows that he is the cause of his slaves’ suffering. He simply doesn’t care…he likes living large on his plantation. Why is this attitude wrong? Do you accept that his values are as valid as yours? Why not, since his values are accepted by the vast majority of the population?

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            What’s motivation got to do with it? We are talking about what people ought to do, not about whether they are motivated to do it.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            We all recognise a distinction between what we ought to do and what we want to do. Whether or not you ought to do something does not (except in special cases) depend upon what you want to do or what you feel or desire. If you ought to do a particular action, it does not matter that you want, feel or desire to do something different; you still ought to do that action. If you ought not to torture that child, the facts that you would enjoy it, feel great about, derive satisfaction from it do not change the fact that you ought not to do it. An all-things-considered-ought is a categorical imperative.

            Sure, human beings are rule-making and requirement-imposing animals. But they are also rule-seeking, rule-recognising and requirement-fulfilling animals. There are even evolutionary explanations for why we seek for rules within our social environments and seek to conform with them (more or less) even when we don’t want to.

            Do moral rules exist objectively, independent of human beings? Yes and no. If there were no humans, there would be no rules for humans to comply with. But the rules that humans ought to comply with are not dependent on what any particular human feels about it.

            I think that the true, objective bunch of moral rules are those that contribute most to human flourishing. It is a matter of objective fact that some rules do this and others do not (which is not to claim that we know what the objective fact about this is). Since human flourishing involves the satisfaction of human desires in some ways, there is therefore a connection with subjective states. But the connection is indirect and complex (it could not be spelt out in terms of utility maximisation, for example).

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            We all recognise a distinction between what we ought to do and what we want to do. Whether or not you ought to do something does not (except in special cases) depend upon what you want to do or what you feel or desire.

            Perhaps not what I occurrently desire. But I would say that all oughts are conditioned, that whether we ought do do something or ought not do something depends on aims and affections we already possess, and that the hierarchy of reasons and motivations terminates with motivations or aims that are not themselves subject to further appraisal, that motivate unconditionally, and that are not even properly classified as “reasons”. I need reasons for some proposed actions because I need to connect those actions with aims I already have. But my most fundamental aims are not susceptible to further connections of this kind, and so it is misguided to seek reasons for them.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            And while it might be the case that there is some ideally optimal set of rules that are more conducive to human flourishing than any other possible set of rules, that hypothesis seems iffy to say the least. Nor would identifying such rules help us much in our present circumstances. The rules might recommend courses of action that only make sense in the moral utopia in which all of the rules in in the ideal set have been established as prevailing social norms, but that would be wildly inappropriate in the circumstances we find ourselves in now.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            I agree that there may be equally optimal sets of rules, or even incommensurable sets. In either of those cases, the moral truth is a disjunction of all the equal or incommensurable sets.

            Whether or not identifying the rules would help us much in our present circumstances is not necessarily relevant. Knowing the truth often does not help us in our present circumstances; but it is still the truth. (A trivial example: the truth is that there is nothing we can do.)

            It may well be the case that doing what we ought to do ‘does not make sense’ from a self-interested point of view. But the moral rules I am speaking of are not utopian: by definition they are the ones (whatever they are) that contribute most to human flourishing, i.e., actual human flourishing in the real world. Further, what we ought to do depends upon circumstances: all moral rules have exceptions, some often conflict with others, and we often have to seek out a new rule to resolve the conflict (recall Hayek on judge-made law). This is opening up a big topic, so I will stop there.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            I’m not talking just about what makes sense from a self-interested point of view, but from the point of view of our most expansive concerns. The ideal system of human flourishing might involve a way of life in which everyone acts in accordance with some rule R. But it could be that if you tried to act in accordance with rule R in the current circumstances, you would cause tremendous harm.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            I think I already answered this. I am not talking about an ideal, I am talking about what set of rules would be best for real people in the real world. Further, as I indicated but did not spell out enough, we can never have knowledge of the complete set of rules, because of our cognitive limitations. We cannot know in advance every sort of unusual circumstance that may arise to pose an exception to the rules we have already articulated. So we have to be prepared to formulate new rules to cope with unexpected situations which show that the existing set of rules is not adequate. This is like the judge-made law that Hayek discusses (L, L &L, Vol. 1). It is the moral analogue of Godel’s theorem (though Hayek does not point that out): the full set of rules is not finitely axiomatisable.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            It’s the same issue. The total set of rules that would be best for real people in the real world might be such that individual acts in accordance with one of those rules would be ludicrous if other people are not already obeying all of the other rules most of the time.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            This is a good point. I don’t think it is quite the point you were making before (which I think I answered), but it is a development of it (so my answer is an extension of my earlier answer). Let me put it this way.

            There is a (single, let us suppose) set of moral rules which are objectively true. Those rules state, for any agent in any situation, how that agent ought to act. Our knowledge of this set of rules is always incomplete (even when it is not mistaken), just as our knowledge of the theorems of arithmetic is always incomplete. But we can always discover additional moral rules that govern unusual situations when such situations arise. Suppose that we know what we ought to do in most situations and can find out what we ought to do in others.

            But suppose, now, that very few people are doing what they ought to do. What ought we do under those circumstances? Surely, you say, it would be ludicrous to do what the rules say we ought to do.

            I have to say that we ought to do what the rules say we ought to do. Why? Because I say that the rules are objectively true, so it is a matter of fact that we ought to do what the rules say. I cannot (consistently) say that we ought not to do as the rules say.

            But what would the rules say under those circumstances? Surely, those circumstances are unusual. In which case we may need to discover an additional rule to the ones we have already discovered, a new rule that overrides the old ones in these unusual circumstances. Just as the rules for war are different to the rules for peace, but arguably all part of the same moral system, so the rules for the lawless situation may be different from the rules for a more civilised one, but still part of the same system of objectively true moral rules.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            It seems to me that there are two errors in what you say.

            First, consider the devil (if you like, take this as a metaphor for what is bad in us). His most fundamental aims and desires are to produce suffering in people (and other animals), especially innocent people, and the more excruciating the suffering the more exquisite he finds it. We point out to him: ‘You ought not to do that!’ He says: ‘I know: that’s what makes me most want to do it!’ Even he recognises the distinction between what he ought to do and what he most desires to do.

            Second, consider Fred. He spends all his money and all his leisure time getting drunk, and not just drunk, but disgustingly drunk, passing out, throwing up, talking incoherent nonsense, forgetting everything, crapping himself (add some more if you can think of some). We point out to him: ‘You ought not to do that!’ He says: ‘Don’t be ridiculous. I am doing what I want to do, indeed, what I most want to do, and I’m not harming anyone, so how can you say I ought not to do it?’ We reply, correctly I think: ‘You are wasting your life; you get one life and you are throwing yours away; you are forsaking your fulfilment for…for what exactly? You are not even enjoying yourself because you are too drunk to appreciate anything. You are failing yourself.’ It is quite possible that Fred eventually sobers up, takes an interest in more demanding projects of various kinds and starts to flourish. Then, when he looks back on his drunken years he will say: ‘I ought not to have done that!’

            Both drunken Fred and the devil are doing what they most want. But what Fred wants is bad for him; and what the devil wants is bad for others. Neither ought to do what he wants.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            In both cases, you are assuming that the present wants people have and act on represent their most fundamental aims, loves and hates. But that is rarely the case. In most cases, the drunk can quite easily be made to see that reckless behavior that seems immediately appealing is in fact destructive of ends the drunk already possesses, and that he himself finds more important than they immediate pleasures of drunkenness. You can sometimes motivate him to change his ways by reminding him of those other more abiding and important aims and using reason to help him see the negative connection between those aims and his present behavior.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            It is false that the drunk can quite be easily made to see that he is acting in conflict with ends he already possesses. Try talking to one!

            Your response is just ad hoc. You just posit whatever wants you need to avoid the refutation of your view, even when the people to whom you attribute those wants deny having them, argue that they would be silly wants to have, and show by their behaviour that they do not have them. This is not a serious way to theorise, though it is typical of contemporary philosophy.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Most drunks I have known cry in their beer a lot and believe that someday they ought to quit drinking. And whether or not they think about this a lot, they are easily persuaded that excessive drinking is bad for their health. But yes, if people lack all of these further motivations, then it will not be possible to make much progress in reasoning them out of their present behavior. Nor, of course, will it help much to tell them that you have special knowledge that they ought to stop drinking in some unconditional, transcendent meaning of the term “ought” that is independent of their actual motivations, aims, goals, desires, commitments etc.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            There is a confusion there, a commonly occurring confusion. The claim that morality is objective, that some moral statements are objectively true, does not entail the claim that someone has knowledge of what the objective moral facts are. It always surprises me that people pass seamlessly from the first claim to the second, when it seems to me obvious that the first may be true while the second is false. Exactly 10,000 years ago there was a definite number of humans in the world. Whatever number it was is a definite fact. But no one knows what that number is, and no one will ever know. I have never said that I, or anyone else, has special knowledge of moral truths. What I said is that there are moral truths.

            The following is my statement of what I take the truth to be, but I am fallible, I have no special knowledge, the following statemment may well be false, The drunk ought not to be living as he does. It is bad for him even if it is not bad for anyone else. He ought not to be living like that even though that is how he most wants to live.

          • good_in_theory

            What is an “objective moral fact” and what makes it “objective”? I have an idea of what makes “how many people are alive right now” objective. I don’t have an idea of what would make “thou shalt not kill” objective.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            It is difficult to give a substantive answer to your question. As Aristotle put it, a statement is true if and only if things are as the statement says they are. Or Tarski: ‘snow is white’ is true if and only if snow is white. Similarly, something is an objective moral fact if and only if the statement that states it is true.

            People can be seen and touched..We tend to find that persuasive when considering whether the existence of people is an objective fact. Moral facts, like mathematical facts, are abstract.So we lack the persuasive sensory indicators. But why should sensory seemings be given more weight than intellectual seemings? And even if they should, why should intellectual seemings be discounted altogether?

  • Hume22

    I think we need to distinguish Rawlsian moral/political philosophy characteristic of liberal egalitarians from the attempt to apply it to current issues of public policy (an amusing line of Posner “When Rawls, for example, descends from the abstractions of political philosophy to concrete issues of law and public policy, he becomes a superficial dispenser of current ‘liberal’ dogmas . . .” [I'm not a fan of Posner but this made me laugh]). In the former case, the philosopher is engaging in abstract political philosophy, concerned with presenting an ideal theory of justice, legitimacy, etc. In the latter case, the philosopher offers pragmatic policy proposals that he/she believes are somehow required by the ideal and/or necessary to reach the ideal. The problem, as I see it, is that many of these “High Liberals” slide back-and-forth from one level to the other in making arguments against classical liberalism, incorporating ideal assumptions into their preferred theory of justice without allowing for such in criticizing their opponents. So the ‘guarantee’ they are looking for is obtained through ideal assumptions at an abstract level, while it is claimed to be lacking when applied to classical liberals without affording the benefit of such assumptions to those they are criticizing.

    For example, Samuel Freeman writes “what would reasonably justify such expansive individual rights to make economic contracts and accumulate, use, and dispose of property without regard to the adverse consequences they have for those who are worse off? Of course libertarians and classical liberals have their arguments (ranging from appropriation of property in a semi-Lockean state of nature to social utility). Robert Nozick and other libertarians have suggested, without much visible argument, that individual autonomy underlies extensive libertarian property rights. But what is the conception of autonomy that would allow, as libertarianism does, for conditions in which a small minority might monopolize the means of production while large numbers of people are either destitute and unemployed, or have lost economic independence since they have no alternative to a wage relationship with those who own and control the means of production? . . . Unregulated economic liberties then render impossible many persons’ adequate development of their moral powers, and therewith freedom and equality and their having fair opportunities to pursue a reasonable conception of the good.” Freeman, RAWLS (2007), at 58. It seems to me that Freeman straddles back and forth between ideal assumptions and social contingencies. He never once mentions the consequences to his theory of the findings in public choice, nor does he consider the inherent problems associated with the concentration of political power and authority in offices occupied by human beings (recall the Stanford study re” authority).

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    Perhaps the contrast here is simply this. Libertarians think that ‘fairness,’ or material equality, is not a matter of rights and thus not a matter of justice. Egalitarians think that it is a matter of rights and thus of justice. On the assumption that government should attempt to prevent and rectify violations of rights, i.e., that government should try to ensure justice, libertarians and egalitarians draw different conclusions about the role of the state.

    The next question is why libertarians and egalitarians differ about whether material equality is a matter of justice. Some libertarians don’t give two hoots about material equality and find the concern with it despicable. BHLs, on the other hand, share the egalitarians’ concern with it (though perhaps in an attenuated form) but think that the best way to secure it in practice is by letting markets rip. Egalitarians, in contrast, think that the best way of securing it is by making it a responsibility of government; and one way of doing this is to declare material equality to be a matter of justice (it is not the only way). Do they think that governments can guarantee material equality? Some might do; others might just think that governments can do better than the market.

    So there are two questions:

    (1) What do people have a right to (what is the scope of justice)?
    (2) What is the best way of securing (an acceptable degree of) material equality?

    I think the two questions are, or ought to be, quite separate, because I do not give two hoots for material equality. But BHLs and egalitarians may argue for a connection between the two questions. For it seem plausible that the correct answer to the first question, depends upon facts about what promotes human flourishing. In which case, people who think that human flourishing depends upon, or involves, material equality can argue that an answer to the first question depends upon an answer to the second.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      Here’s an additional thought that harks back to my earlier comment. We can distinguish justice as a matter of rights and justice as a matter of moral desert.

      This is, effectively, what Kant does. Even if governments could guarantee no rights violations without restitution and punishment, they still could not guarantee that everyone gets what, morally, he deserves. For, according to Kant, what we morally deserve depends upon the motivation with which we act, not simply on whether we violate rights or not, and a person’s motivation is hidden from the rest of us (and perhaps often even from himself).

      But we can broaden this point to encompass other accounts of moral desert (such as, what you’ve earned, what you need, what you are responsible for, or whatever). There is a distinction between what people have a right to and what, morally, they deserve. This ought to be obvious to libertarians. since what people have a right to depends upon the unpredictable vicissitudes of the market, so people often have a right to undeserved, ‘windfall,’ gains and losses. But other theorists either do not make the distinction or find the distinction objectionable. The line of thought is, perhaps, that people ought to get what they morally deserve; therefore people have the moral right to what they morally deserve; therefore, it is a matter of justice that people get what they morally deserve; therefore, the government is responsible for ensuring that people get what they morally deserve, because government is responsible for securing justice.

      It should be obvious that I think that line of thought is thoroughly mistaken. But explaining all the errors in it may be a big job.

    • Hume22

      “(1) What do people have a right to (what is the scope of justice)?”
      The question of scope is usually posed in a different manner, referring not to the set of rights but to the “who” that is in question (cosmopolitan vs institutionists). Most egalitarians are institutionists and deny global justice (see Nagel’s article, Dworkin, Rawls, etc). I think this is why most libertarians have a real hard time taking these egalitarians seriously. First, libertarians are typically skeptical of the state and state boundaries. The history of political society is dominated by immoral imperialism and aggressive war. Second, libertarians are skeptical of state-enforcement. Thus, they are skeptical of redistribution schemes. When you combine these two, it is easy to see why standard liberal egalitarianism seems silly and implausible. How can you seriously maintain that “social justice” is circumscribed by the morally arbitrary boundaries of the international state system? Rawls, you make so much of the claim that natural talents are morally arbitrary, how can you nevertheless provide such a fundamental role to the historically contingent boundaries of political societies?
      What is needed, before we can properly answer the question “what do people have a right to?” is a prior answer to the question “which people are within the scope of social justice?” Everyone? “Societies” (which society? “western society”?) Hemispheres? Continents? States? Localities? Voluntary associations? Families? When we know who we are dealing with, then we can get a better sense of “what” these people have a right to.

  • http://www.facebook.com/people/Roderick-Tracy-Long/1037941173 Roderick Tracy Long

    Another thing to say is that states don’t guarantee anything either.

    • Fernando Teson

      Quite.

  • http://twitter.com/ptrstonge Peter St. Onge

    Fernando, my sense is that egalitarians disbelieve the empiricals. Implying, to me anyway, that the issue isn’t guarantees vs tendencies, rather something bigger is moving under the surface to motivate bias. Perhaps that something bigger is a Sowellian difference in vision, or perhaps a Hegelian yearning for centralization.