Justice as Desert in David Schmidtz’s Elements of Justice

This year marks the twentieth anniversary of philosopher David Schmidtz’s masterful Elements of Justice. The occasion marks an apt opportunity to reflect on the efforts of a philosopher who has given more thought to freedom and well-being than many. Classical liberals and libertarians are sometimes accused of a myopic focus on liberty, as if it alone stands free of potential conflicts with other values or moral claims. Leave everyone with maximal negative freedom, and few major controversies will arise, or any purported controversies will be defined out of existence if no force is initiated. Skeptics doubt that a case can be won so quickly without considering questions of justice. They are correct. Frankly, if conclusive philosophic defenses of libertarianism were so easy, we could have put down our pens long ago.

Schmidtz confronts justice head-on. His observations may be informed by many commonly held classical liberal tenets, but the book is not a defense of the latter. His text is accessible to a general audience if marked at times with some technical precision that rewards careful re-readings.

A Fruitful Way to Think About Justice

For Schmidtz, what we call justice is a constellation of related elements. Justice is like a neighborhood, not a building. A good neighborhood is functional, a place where people can live well. But unlike a good building, a good neighborhood isn’t designed. We don’t construct a theory of justice and then profess it to the world in the hopes of it being followed like a religious text. If we seek a theory of justice, we should also realize that theories are maps, not arguments. A theory of justice is a map of its component neighborhoods. And no map is compelling because no map represents the only reasonable way of seeing the terrain. Other people can and will propose different maps of justice, and that’s fine. It’s up to the user to decide which maps work best in which contexts. I won’t be able to include every nugget of Schmidtz’s insights, so this essay is only a set of pins highlighting landmarks on his map.

One may be tempted to think that we must first define justice to give an account of it. But why think there’s a definition of justice that settles the matter? We don’t need to define “dog” to know what a dog is. Why think that justice is different? Theorists disagree about justice, and many other concepts, because theorizing doesn’t lead to consensus. (Theorizing about theories doesn’t lead to consensus either—some meta-theories disagree and claim we can reach consensus.) We then have two ways to proceed: we agree on what is correct or on who has jurisdiction. The latter approach worked for freedom of religion and speech, so why not justice? Schmidtz observes that the greatest successes in learning how to live together stem not from agreeing on what is correct but from agreeing to let people decide for themselves. We have different, perhaps overlapping, maps of the justice neighborhood. Maybe it’s better for each of us to use our favored maps, and compare them, rather than insisting that we each have the single correct one and that those using different maps are wrong (or evil).

We can observe some formal conditions about justice as a concept despite the plurality of its conceptions. Justice concerns treating like cases alike about what people are due, though we can’t identify what people are due by conceptual analysis alone. Punishing all shoplifters by amputating their left hands treats like cases alike, but it’s a barbaric form of justice. Punishing all innocent people treats like cases alike, but then such a practice wouldn’t even be about justice. These considerations at least reveal how we know the concept of justice begins with giving people what they are due, whatever that means.

Schmidtz views justice as refracting into four key elements about what people are due, none of which are reducible to the other elements or definable in terms of them. This is messier than some may hope. They may have been looking for ways justice reduces to a single essence covering all its instances, or wondering whether it’s primarily a virtue of institutions or of persons, or hoping it can give each of us the same answer when others are demanding we act justly. Schmidtz’s response may not satisfy these queries because he is not pretending to offer the one true map of justice. Other people will have different maps. His is an invitation to explore neighborhoods that other maps may not highlight, but we won’t know everything about justice any more than the periodic table tells us everything about chemical elements.

These essays will form a five-part series on each of Schmidtz’s four elements: desert, reciprocity, equality, and need, with a final discussion on the right to distribute.

Justice as Desert

Much has been written about what we are due when we are said to deserve this or that. “Skeptics insist that, to be deserving, working hard is not enough; we must also deserve credit for being destined to work hard. While this skeptical theory is not incoherent, neither is there any reason to believe it.”¹

The standard bases on which persons are commonly said to be deserving include character, effort, and achievements.

The skeptics’ theory, in its most sweeping form, depicts desert in such a way that to deserve X, we must supply not only inputs standardly thought to ground a desert claim; we must also be deserving of everything about the world, including its history, that put us in a position to supply that input. In effect, the possibility of our being deserving ended with the Big Bang.²

That is, the possibility of our being deserving is a non-starter because we didn’t cause all the events that led to our existence. So, by definition, we deserve nothing by virtue of our subsequent actions.

Having the good character to put forth effort and make wise decisions is not itself something we earned, according to theorists of justice like John Rawls. A good character is due to genetics or fortunate family circumstances. It is arbitrary whether a given person was lucky enough to have this good fortune in life’s lottery while others didn’t. Someone whose parents encouraged her to read from an early age likely turns out differently than someone whose parents smoked meth instead of doing story time. Thus, subsequent effort and prudent choices aren’t sources for us or anyone else claiming that we deserve the relevant good outcomes. To this, Schmidtz asks whether the supposition that some of an outcome’s causal inputs are arbitrary entails that all of them must be. “Of course not. Everyone is lucky to some degree, but the more a person supplies in terms of effort or excellence, the less weight we put on the inevitable element of luck. In any case, there is a big difference between being lucky and being merely lucky.”³

We are not forced to believe in desert merely because moral philosophers like to talk about (and often deny) it. But “neither are we forced to be skeptics. We decide. We can ask whether we treat people more respectfully when we give them credit for what they do or when we deny them credit.”⁴ Desert is not a transcendent ideal detached from the everyday functioning of a human community. The concept is normally treated as backward-looking, and often employed as a kind of moral scorekeeping, but “there is more than one way to be deserving, and in particular, more than one way to deserve an opportunity. We sometimes deserve X on the basis of what we do after receiving X rather than what we do before.”⁵

In other words, we deserve a chance to make the most of the chances nature and nurture give us. Of course, “we do not deserve our natural gifts at the moment of our birth, but that need not matter. What matters, if anything at all matters, is what we do after the fact.”⁶ Philosophers focus on desert as a compensatory notion, but in ordinary use desert is sometimes a promissory notion. “Even when a windfall is sheer luck, it is not only sheer luck. It is also a challenge, and as with most challenges there is a right way of responding.”⁷ A person trapped at the bottom of a well, without hope of rescue, faces no challenges except perhaps how to confront his mortality. Challenges arise when one has the opportunity to overcome them. More resources often mean more opportunities and thus more challenges.

These observations hold whatever one’s starting point in life. Inheritors of great fortunes are often dismissed as being purely the beneficiaries of luck. While it’s true that some “rich kids” squander their fortune and produce little value, quite a few make the most of their starting point by solving problems and meeting challenges. “The most valuable things we are given in life are opportunities, and the main thing we do to deserve them is to do justice to them after the fact.” People can deserve a chance “not because of what they have done but because of what they can and will do, if only we give them a chance.”⁸

The forward-looking orientation that Schmidtz emphasizes can show why desert is not merely about backward-looking evaluation or respect, but also about incentives and motivation. “One justification for giving people credit for using their opportunities well is that doing so empowers people to use their opportunities well, thereby helping them to live well together.”⁹ Praising people for their efforts and excellences, their successes, and even for their courageous failures can inspire everyone to more effort and excellence, more success, and more opportunities to learn.

Compare the morale of this community with one where, no matter how hard you tried or how much you achieved, the reaction was “you’re just lucky to have a good character.” Worse, imagine being told you are a victim, and your grievances matter more than your agency. Your weaknesses deserve a hearing, but your strengths are irrelevant or arbitrary at best.

Theories of justice, such as Rawls’s Difference Principle, emphasize that we prioritize the well-being of the worst-off class. There are several nonexclusive ways to do this. One way may involve giving them resources like financial income. Another way is to support institutions allowing economic growth that helps the tide rise for everyone. Yet another way is to inspire them, although Rawls’ skepticism of desert works at cross purposes with his theory’s concern for the worst-off. “The least advantaged can least afford the self-stifling cynicism that goes with believing no one deserves anything.” If rich beneficiaries don’t deserve what they do with their inheritances, neither do the producers who become rich by doing well with their talents or from good parenting. Nor can the least advantaged “afford the license for repression that goes with the more advantaged believing no one deserves anything.”¹⁰

Rawls’s Difference Principle should support principles of desert if we are correct to think “the least advantaged want and need the chance to prosper by their own merit.” The difference principle should also support principles of desert “if it is historically true that the least advantaged tend to flourish within, and only within, systems in which honest hard work is respected and rewarded.”¹¹ I take Schmidtz to imply that we don’t calculate our way into desert practices because they are effective; rather, they are effective because we practice them. Still, we can reflect on these practices to see what makes sense. We can “choose among rules such as ‘try to give people what they deserve’ and ‘try to give the least advantaged everything’ by asking which is best for the least advantaged in actual empirical practice.”¹² Some may be surprised if the result is that giving people what they deserve helps the least advantaged more by creating new wealth rather than redistributing current wealth.

Desert as normally understood “is part of the glue that holds society together as a productive venture.” Respecting the inputs people supply “makes people in general better off.”¹³ Telling them their efforts and excellences are at best luck and not praiseworthy will hardly inspire the work needed to make the world better. We give generous tips for excellent service, not to say, “Here is a winning lotto scratcher—good luck” but to say, “Keep at it—the world needs people like you.”

Still, why should we care about desert? Maybe because most of us already do, and the onus is on the skeptic to argue why we shouldn’t. “If we ask why we care whether Bob supplied inputs that make a person deserving, one answer would be: Supplying those inputs makes Bob the kind of person we want our neighbors, our children, and ourselves to be, and makes us all better off to boot.”¹⁴ Elements of justice, such as desert, serve as a function in our interactions. One reason to give people what they deserve “is that it renders people willing and able to act in ways that help them (and the people around them) to get what they need. Welfare considerations are not desert bases, but they can still provide reasons for taking a given desert maker seriously (for example, for respecting people who work hard).”¹⁵

Schmidtz adds “sometimes, simply giving people credit is the essence of treating them as persons rather than as mere confluences of historical forces.”¹⁶ Some philosophers reduce the world to states of affairs or mere congeries of effects. Maybe they are correct in some ultimate metaphysical sense, although skepticism about desert assumes a universe where everything is determined by necessity, which even our current theories of physics deny. Regardless, the “confluence” view is not how we think about matters when we’re going about our daily lives or trying to make ourselves and the world better. Talk of agents or loci of control are absent on the confluence view, but why? Conceptions of desert respond to people as active agents, not as epiphenomena, not as foam riding historical waves. “It is people, not their characters, that work hard. Thus, if we say exemplary character is morally arbitrary, it is people, not merely character, that we are refusing to take seriously.”¹⁷

Not everything involves desert claims, of course. “Conceptions of entitlement respond to people as separate agents.”¹⁸ Rawls and others are correct to fault many collectivist and utilitarian accounts for failing to take seriously how persons are separate beings, not cogs in a societal machine or bits of data to be aggregated. We are entitled to be treated in certain ways by virtue of what we are, not only by what we do, though we want to avoid situations where what we are and what we deserve come apart. “A just system works to minimize the extent to which people’s entitlements fly in the face of what they deserve, but not at a cost of compromising people’s ability to form stable expectations regarding their entitlements, and thus to get on with their lives in peaceful and productive ways.”¹⁹

These have been a few words about Schmidtz’s insights on justice as desert, but of course they’re not the complete or final word. Next, we will explore the neighborhood of reciprocity, a second element of justice.