The fact that people are, or are not, treated as they deserve to be treated is one kind of reason why an action or social policy may be just or unjust. I say “one kind of reason” because there are also other sorts of reasons relevant to supporting claims of justice. Besides requiring that people be treated as they deserve, justice may also require that people’s rights be respected, which is different....
The term “distributive justice” is commonly used by philosophers, but as Nozick points out, it can be misleading. It suggests that there is a central supply of things which some authority has to dole out; but for most goods, there is no such supply and no such authority. Goods are produced by diverse individuals and groups who then have rights with respect to them, and the “distribution” of holdings at any particular time will depend, at least in part, on the voluntary exchanges and agreements those people have made. Jobs, for example, do not come from some great stockpile, to be handed out by a master “distributor” who may or may not follow principles of “justice.” Jobs are created by the independent decisions of countless business people, who are entitled, within some limits of course, to operate their own businesses according to their own judgments. In a free society those people get to choose with whom they will make what sorts of agreements, and this means, among other things, that they get to choose who is hired from among the various job applicants.
These observations suggest an argument in defense of reverse discrimination: if private business people have a right to hire whomever they please, don’t they have a right to hire blacks and women in preference to others? In her paper on “Preferential Hiring”
Judith Jarvis Thomson2 advances an argument based on exactly this idea. The argument begins with this principle:
No perfect stranger has a right to be given a benefit which is yours to dispose of; no perfect stranger even has a right to be given an equal chance at getting a benefit which is yours to dispose of.3
Since many jobs are benefits which private employers have a right to dispose of, those employers violate no one’s rights in hiring whomever they wish. If they choose to hire blacks, or women, rather than other applicants, they have a perfect right to do so. Therefore, she concludes, “there is no problem about preferential hiring,” at least in the case of private business.
Thomson’s principle is plausible. If something is yours, then no one else has a right to it—at least, no perfect stranger who walks in off the street wanting it. Suppose you have a book which you don’t need and decide to give away as a gift. Smith and Jones both want it, and you decide to give it to Smith. Is Jones entitled to complain? Apparently not, since he had no claim on it in the first place. If it was your book, you were entitled to give it to whomever you chose; you violated no right of Jones in giving it to Smith. Why shouldn’t the same be true of jobs? If you start a business, on your own, why shouldn’t you be free to hire whomever you please to work with you? You violate no one’s rights in hiring whomever you please, since no one had a right to be hired by you in the first place.
This is an important and powerful argument because it calls attention to a fact that is often overlooked, that people do not naturally have claims of right to jobs and other benefits which are privately produced. However, the argument also depends on another assumption which is false, namely, the assumption that people are treated unjustly only if their rights are violated. In fact, a person may be treated unjustly even though no right of his is violated, because he is not treated as he deserves to be treated. Suppose one applicant for a job has worked very hard to qualify himself for it; he has gone to night-school, at great personal sacrifice, to learn the business, and so on. Another applicant could have done all that, but chose not to; instead, he has frittered away his time and done nothing to prepare himself. In addition, the first applicant has worked hard at every previous job he has held, making a good record for himself, whereas the second is a notorious loafer—and it’s his own fault; he has no good excuse. Now it may be true that neither applicant has a right to the job, in the sense that the employer has the right to give the job to whomever he pleases. However, the first man is clearly more deserving, and if the employer is concerned to treat job applicants fairly he will not hire the second man over the first.
Now let me return to Nozick.4 In Part II of Anarchy, State and Utopia he defends capitalism, not merely as efficient or workable, but as the only moral economic system, because it is the only such system which respects individual rights. Under capitalism people’s holdings are determined by the voluntary exchanges (of services and work as well as goods) they make with others. Their right to liberty requires that they be allowed to make such exchanges, providing that they violate no one else’s rights in doing so. Having acquired their holdings by such exchanges, they have a right to them; so it violates their rights for the government (or anyone else) to seize their property and give it to others. It is impermissible, therefore, for governments to tax some citizens in order to provide benefits for others.
The obvious objection is that such an arrangement could produce a disastrously unfair distribution of goods. Some lucky entrepreneurs could become enormously rich, while other equally deserving people are poor, and orphans starve. In reply Nozick contends that even if unmodified capitalism did lead to such a distribution, that would not necessarily be unjust. The justice of a distribution, he says, can be determined only by considering the historical process which led to it. We cannot tell whether a distribution is just simply by checking whether it conforms to some nonhistorical pattern, for example the pattern of everyone having equal shares, or everyone having what he or she needs. To show this Nozick gives a now-famous argument starring the basketball player Wilt Chamberlain. First, he says, suppose the goods in a society are distributed according to some pattern which you think just. Call this distribution Dl. Since you regard Dlas a just distribution, you will agree that under it each person has a right to the holdings in his or her possession. Now suppose a million of these people each decide to give Wilt Chamberlain twenty-five cents to watch him play basketball. Chamberlain becomes rich, and the original pattern is upset. But if the original distribution was just, mustn’t we admit that the new distribution (D2) is also just? ...
Each of these persons chose to give twenty-five cents of their money to Chamberlain. They could have spent it on going to the movies, or on candy bars, or on copies of Dissent magazine, or of Monthly Review. But they all, at least one million of them, converged on giving it to Wilt Chamberlain in exchange for watching him play basketball. If Dlwas a just distribution, and people voluntarily moved from it to D2, transferring parts of their shares they were given under Dl(what was it for if not to do something with?), isn’t D2also just? ... Can anyone else complain on grounds of justice? ... After someone transfers something to Wilt Chamberlain, third parties still have their legitimate shares; their shares are not changed.5 The main argument here seems to depend on the principle that If DI is a just distribution, and D2 arises from DI by a process in which no one’s rights are violated, then D2 is also just. Now Nozick is surely right that the historical process which produces a situation is one of the things that must be taken into account in deciding whether it is just. But that need not be the only relevant consideration. The historical process and other considerations, such as desert, must be weighed together to determine what is just. Therefore, it would not follow that a distribution is just simply because it is the result of a certain process, even a process in which no one’s rights are violated. So this argument cannot answer adequately the complaint against unmodified capitalism.
To make the point less abstract, consider the justice of inherited wealth. A common complaint about inherited wealth is that some people gain fortunes which they have done nothing to deserve, while others, of equal merit, have nothing. This seems unjust on the face of it. Nozick points out that if the testators legitimately own their property—if it is theirs—then they have a right to give it to others as a gift. (The holdings of third parties will not be changed, etc.) Bequests are gifts; therefore property owners have a right to pass on their property to their heirs. This is fair enough, but at most it shows only that there is more than one consideration to be taken into account here. That some people have more than others, without deserving it, counts against the justice of the distribution. That they came by their holdings in a certain way may count in favor of the justice of the same distribution. It should come as no surprise that in deciding questions of justice competing claims must often be weighed against one another, for that is the way it usually is in ethics.
2. DESERT AND PAST ACTIONS
Deserts may be positive or negative, that is, a person may deserve to be treated well or badly; and they may be general or specific, that is, a person may deserve to be treated in a generally good or bad way, or he may deserve some specific kind of good or bad treatment. An example may make the latter distinction clear. Suppose a woman has always been kind and generous with others. As a general way of dealing with her, she deserves that others be kind and generous in return. Here we need not specify any particular act of kindness to say what she deserves, although of course treating her kindly will involve some particular act or other. What she deserves is that people treat her decently in whatever situation might arise. By way of contrast, think of someone who has worked hard to earn promotion in his job. He may deserve, specifically, to be promoted.
I wish to argue that the basis of all desert is a person’s own past actions. In the case of negative desert, this is generally conceded. In order for a person to deserve punishment, for example, he must have done something to deserve it. Moreover, he must have done it “voluntarily,” in Aristotle’s sense, without any excuse such as ignorance, mistake, or coercion. In allowing these excuses and others like them, the law attempts to restrict punishment to cases in which it is deserved.
But not every negative desert involves punishment, strictly speaking. They may involve more informal responses to other people’s misconduct. Suppose Adams and Brown work at the same factory. One morning Adams’ car breaks down and he calls Brown to ask for a ride to work. Brown refuses, not for any good reason, but simply because he won’t be bothered. Later, Brown finds himself in the same fix: his car won’t start, and he can’t get to work; so he calls Adams to ask for a lift. Now if Adams is a kind and forgiving person, he may grant Brown’s request. And perhaps we all ought to be kind and forgiving. However, if Adams does choose to help Brown, he will be treating Brown better than Brown deserves. Brown deserves to be left in the lurch. Here I am not arguing that we ought to treat people as they deserve—although I do think there are reasons for so treating people, which I will mention presently—here I am only describing what the concept of desert involves. What Brown deserves, as opposed to what kindness or any other value might decree, is to be treated as well, or as badly, as he himself chooses to treat others.
If I am right, then the familiar lament “What did I do to deserve this?,” asked by a victim of misfortune, is more than a mournful cliche. If there is no satisfactory answer, then in fact one does not deserve the misfortune. And since there is always a presumption against treating people badly, if a person does not deserve bad treatment it is likely to be wrong to treat him in that way. On the other side, in the case of positive deserts, we may notice a corresponding connection between the concept of desert and the idea of earning one’s way, which also supports my thesis.
To elaborate an example I used earlier, think of an employer who has to decide which of two employees to give a promotion. One has worked very hard for the company for several years. He has always been willing to do more than his share of work; he has put in a lot of overtime when no one else would; and so on. The other has always done the least he could get by with, never taking on any extra work or otherwise exerting himself beyond the necessary minimum. Clearly, if the choice is between these two candidates, it is the first who deserves the promotion. It is important to notice that this conclusion does not depend on any estimate of how the two candidates are likely to perform in the future. Even if the second candidate were to reform, so that he would work just as hard (and well) in the new position as the first candidate, the first is still more deserving. What one deserves depends on what one has done, not on what one will do.
Of course there may be any number of reasons for not giving the promotion to the most deserving candidate: perhaps it is a family business, and the second candidate is the boss’s son, and he will be advanced simply because of who he is. But that does not make him the most deserving candidate; it only means that the promotion is to be awarded on grounds other than desert. Again, the boss might decide to give the position to the second candidate because he is extraordinarily smart and talented, and the boss thinks for that reason he will do a better job (he has promised to work harder in the future). This is again to award the job on grounds other than desert, for no one deserves anything simply in virtue of superior intelligence and natural abilities. As Rawls emphasizes, a person no more deserves to be intelligent or talented than he deserves to be the boss’s son—or, than he deserves to be born white in a society prejudiced against nonwhites. These things are all matters of chance, at least as far as the lucky individual himself is concerned.
Three questions naturally arise concerning this view. First, aren’t there bases of desert other than a person’s past actions, and if not, why not? Second, if a person may not deserve things in virtue of being naturally talented or intelligent or fortunate in some other way, how can he deserve things by working for them? After all, isn’t it merely a matter of luck that one person grows up to be industrious—perhaps as the result of a rigorous upbringing by his parents—while another person is not encouraged, and ends up lazy for reasons beyond his control? And finally, even if I am right about the basis of desert, what reason is there actually to treat people according to their deserts? Why should desert matter? I will take up these questions in order. The answers, as we shall see, are interrelated.
(a) . . . Does the most skillful player deserve to win an athletic competition? It seems a natural enough thing to say. But suppose the less skilled player has worked very hard, for weeks, to prepare himself for the match. He has practiced nine hours a day, left off drinking, and kept to a strict regimen. Meanwhile, his opponent, who is a “natural athlete,” has partied, stayed drunk, and done nothing in the way of training. But he is still the most skilled, and as a result can probably beat the other guy anyway. Does he deserve to win the game, simply because he is better endowed by nature? Does he deserve the acclaim and benefits which go with winning? Of course, skills are themselves usually the product of past efforts. People must work to sharpen and develop their natural abilities; therefore, when we think of the most skillful as the most deserving, it may be because we think of them as having worked hardest. (Ted Williams practiced hitting more than anyone else on the Red Sox.) But sometimes that assumption is not true.
Do the prettiest and most handsome deserve to win beauty contests? Again, it seems a natural enough thing to say. There is no doubt that the correct decision for the judges of such a competition to make is to award the prize to the best-looking. But this may have little to do with the contestants’ deserts. Suppose a judge were to base his decision on desert; we might imagine him reasoning like this: “Miss Montana isn’t the prettiest, but after all, she’d done her best with what nature provided. She’s studied the use of make-up, had her teeth and nose fixed, and spent hours practicing walking down runways in high-heeled shoes. That smile didn’t just happen; she had to learn it by spending hours before a mirror. Miss Alabama, on the other hand, is prettier, but she just entered the contest on a lark—walked in, put on a bathing suit, and here she is. Her make-up isn’t even very good.” If all this seems ridiculous, it is because the point of such contests is not to separate the more deserving from the less (and maybe because beauty contests are themselves a little ridiculous, too). The criterion is beauty, not desert, and the two have little to do with one another. The same goes for athletic games: the purpose is to see who is the best player, or at least who is able to defeat all the others, and not to discover who is the most deserving competitor.
There is a reason why past actions are the only bases of desert. A fair amount of our dealings with other people involves holding them responsible, formally or informally, for one thing or another. It is unfair to hold people responsible for things over which they have no control. People have no control over their native endowments—over how smart, or athletic, or beautiful they naturally are—and so we may not hold them responsible for those things. They are, however, in control of (at least some of) their own actions, and so they may rightly be held responsible for the situations they create, or allow to exist, by their voluntary behavior. But those are the only things for which they may rightly be held responsible. The concept of desert serves to signify the ways of treating people that are appropriate responses to them, given that they are responsible for those actions or states of affairs. That is the role played by desert in our moral vocabulary. And, as ordinary-language philosophers used to like to say, if there weren’t such a term, we’d have to invent one. Thus the explanation of why past actions are the only bases of desert connects with the fact that if people were never responsible for their own conduct—if hard determinism were true—no one would ever deserve anything, good or bad.
(b) According to the view I am defending, we may deserve things by working for them, but not simply by being naturally intelligent or talented or lucky in some other way. Now it may be thought that this view is inconsistent, because whether someone is willing to work is just another matter of luck, in much the same way that intelligence and talent are matters of luck. Rawls takes this position when he says:
Perhaps some will think that the person with greater natural endowments deserves those assets and the superior character that made their development possible. Because he is more worthy in this sense, he deserves the greater advantages that he could achieve with them. This view, however, is surely incorrect. It seems to be one of the fixed points of our considered judgments that no one deserves his place in the distribution of native endowments, any more than one deserves one’s initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. The notion of desert seems not to apply to these cases.6
So if a person does not deserve anything on account of his intelligence or natural abilities, how can he deserve anything on account of his industriousness? Isn’t willingness to work just another matter of luck?
The first thing to notice here is that people do not deserve things on account of their willingness to work, but only on account of their actually having worked. The candidate for promotion does not deserve it because he has been willing to work hard in his old job, or because he is willing to work hard in the new job. Rather he deserves the promotion because he actually has worked hard. Therefore it is no objection to the view I am defending to say that willingness to work is a character trait that one does not merit. For, on this view, the basis of desert is not a character trait of any kind, not even industriousness. The basis of desert is a person’s past actions.
Now it may be that some people have been so psychologically devastated by a combination of poor native endowment and unfortunate family and social circumstances that they no longer have the capacity for making anything of their lives. If one of these people has a job, for example, and doesn’t work very hard at it, it’s no use blaming him because, as we would say, he just hasn’t got it in him to do any better. On the other hand, there are those in whom the capacity for effort has not been extinguished. Among these, some choose to work hard, and others, who could so choose, do not. It is true of everyone in this latter class that he is able, as Rawls puts it, “to strive conscientiously.” The explanation of why some strive, while others don’t, has to do with their own choices. When I say that those who work hard are more deserving of success, promotions, etc., than those who don’t, I have in mind comparisons made among people in this latter class, in whom the capacity for effort has not been extinguished.7
There is an important formal difference between industriousness, considered as a lucky asset, and other lucky assets such as intelligence. For only by exercising this asset-i.e., by working—can one utilize his other assets, and achieve anything with them. Intelligence alone produces nothing; intelligence plus work can produce something. And the same relation holds between industriousness and every other natural talent or asset. Thus “willingness to work,” if it is a lucky asset, is a sort of superasset which enables one’s other assets to be utilized. Working is simply the way one uses whatever else one has. This point may help to explain why the concept of desert is tied to work in a way in which it is not tied to intelligence or talents. And at the same time it may also provide a rationale for the following distinction: if a person displays intelligence and talent in his work, and earns a certain benefit by it, then he deserves the benefit not because of the intelligence or talent shown, but only on account of the work done.
(c) Finally, we must ask why people ought to be treated according to their deserts. Why should desert matter? In one way, it is an odd question. The reason why the conscientious employee ought to be promoted is precisely that he has earned the promotion by working for it. That is a full and sufficient justification for promoting him, which does not require supplementation of any sort. If we want to know why he should be treated in that way, that is the answer. It is not easy to see what else, by way of justification, is required.
Nevertheless, something more may be said. Treating people as they deserve is one way of treating them as autonomous beings, responsible for their own conduct. A person who is punished for his misdeeds is held responsible for them in a concrete way. He is not treated as a mindless automaton, whose defective performance must be “corrected,” or whose good performance promoted, but as a responsible agent whose actions merit approval or resentment. The recognition of deserts is bound up with this way of regarding people. Moreover, treating people as they deserve increases their control over their own lives and fortunes, for it allows people to determine, through their own actions, how others will respond to them. It can be argued on grounds of kindness that people should not always be treated as they deserve, when they deserve ill. But this should not be taken to imply that deserts count for nothing. They can count for something, and still be overridden in some cases. To deny categorically that desert matters would not only excuse the malefactors; it would leave all of us impotent to earn the good treatment and other benefits which others have to bestow, and thus would deprive us of the ability to control our own destinies as social beings.
1 “What People Deserve,” from John Arthur and William H. Shaw, Justice and Economic Distribution (Englewood Cliffs, NJ: Prentice Hall, 1978).
2 Judith Jarvis Thomson, "Preferential Hiring," Philosophy and Public Affairs, 2, no. 4 (Summer 1973), pp. 364-384.
3 Ibid., p. 369.
4 The following is from my review of Anarchy, State and Utopia in Philosophia, 7 (1977).
5 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 161.
6 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 103-104.
7 What I am resisting—and what I think Rawls' view leads us towards—is a kind of determinism that would make all moral evaluation of persons meaningless. On this tendency in Rawls, see Nozick, pp. 213-214.