Justice: What's The Right Thing To Do? Episode 08: WHATS A FAIR START?

https://www.youtube.com/watch?v=VcL66zx_6No

PART ONE: John Rawls -- WHATS A FAIR START?
Is it just to tax the rich to help the poor? John Rawls says we should answer this question by asking what principles you would choose to govern the distribution of income and wealth if you did not know who you were, whether you grew up in privilege or in poverty. Wouldn’t you want an equal distribution of wealth, or one that maximally benefits whoever happens to be the least advantaged? After all, that might be you. Rawls argues that even meritocracy—a distributive system that rewards effort—doesn’t go far enough in leveling the playing field because those who are naturally gifted will always get ahead. Furthermore, says Rawls, the naturally gifted can’t claim much credit because their success often depends on factors as arbitrary as birth order. Sandel makes Rawls’ point when he asks the students who were first born in their family to raise their hands.

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Today we turn to the question of distributive justice. How should wealth, income, power and opportunity be distributed – according to what principles? John Rawls offers a detailed answer to this question. We have been trying to make sense of why he thinks the principles of justice are best derived from a hypothetical contract – and what matters is that he thinks a hypothetical contract should be carried out in an original position of equality, behind what Rawls calls “the veil of ignorance.”

Let’s turn now to the principles that Rawls says would be chosen behind the veil of ignorance. First, he considers some of the major alternatives.

What about utilitarianism? Would the people in the original position choose to govern their collective lives by utilitarian principles –the greatest good for the greatest number? No. The reason is that behind the veil of ignorance everyone knows that once the veil goes up and real life begins, we will each want to be respected with dignity even if we turn out to be a member of a minority. We don’t want to be oppressed, and so we would agree to reject utilitarianism, and instead to adopt as our first principle: equal basic liberties – fundamental rights to freedom of speech, freedom of assembly, religious liberty, freedom of conscience and the like. We wouldn’t want to take the chance that we would wind up as members of an oppressed, or a despised minority, with the majority tyrannizing over us.

And so Rawls says utilitarianism would be rejected. Utilitarianism makes the mistake, Rawls writes, of forgetting, or at least not taking seriously, the distinction between persons. And in the original position behind the veil of ignorance we would recognize that and reject utilitarianism. We wouldn’t trade our fundamental rights and liberties for any economic advantages - that’s the First Principle.

The Second Principle has to do with social and economic inequalities – what would we agree to? Remember we don’t know whether we’re going to wind up being rich or poor, healthy or unhealthy; we don’t know what kind of family we’re going to come from: whether we’re going to inherit millions, or whether we’ll come from an impoverished. So, we might at first thought.. say, well let’s require an equal distribution of income and wealth – just to be on the safe side. But then we would realize that we could do better than that, even if we’re unlucky and wind up at the bottom. We could do better if we agreed to a qualified principle of equality – Rawls calls it the Difference Principle – a principle that says: only those social and economic inequalities will be permitted, that work to the benefit of the least well-off. So, we wouldn’t reject all inequality of income and wealth, we would allow some. But the test would be: do they work to the benefit of everyone, including those, or as he specifies the principle, ESPECIALLY those at the bottom. Only those inequalities would be accepted behind a veil of ignorance, and so, Rawls argues, only those inequalities that work to the benefit of the least well-off are just.

We talked about the examples of Michael Jordan making $31,000,000 per year; Bill Gates having a fortune in the tens of billions, would those inequalities be permitted under the Difference Principle? Only if they were part of a system – those wage differentials – that actually worked to the advantage of the least well-off.

Well, what would that system be? Maybe it turns out that as a practical matter you have to provide incentives to attract the right people to certain jobs. And when you do, having those people in those jobs will actually help those at the bottom. Strictly speaking, Rawls’ argument for the Difference Principle is that it would be chosen behind the veil of ignorance. Let me hear what you think about Rawls’ claim that these two principles would be chosen behind a veil of ignorance. Is there anyone who disagrees that they would be chosen?

Mike : OK, your argument depends upon us believing that we would argue from a said policy, or justice, from the bottom – for the disadvantaged – and I just don’t see from a proved standpoint where we’ve proven that. Why not the top?

Sandel: Put yourself behind a veil of ignorance, enter into the thought experiment: What principles would you choose? How would you think it through?

M: Well, I would say things like, even Harvard’s existence is an example of preaching toward the top, because Harvard takes the top academics; and I didn’t know when I was born how smart I would be, but I worked my life to get to a place of this caliber. Now, if you’d said Harvard was going to take 1600 people, with absolutely no qualification, we’d all be saying, “Well, there’s not much to work for.”

Sandel: And, so what principle would you choose?

M: In that situation, I would say, a merit-based one – where I don’t necessarily know - but I’d rather have a system that rewards me, based on my efforts.

S: So you, Mike, behind the veil of ignorance, would choose a merit-based system where people are rewarded according to their efforts?

M: Yes.

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Kate: My question is if a merit-based argument is based on when everyone is at a level of equality, where, from that position, you’re rewarded to where you get? Or is it regardless of what advantages you may have - when you began your education to get where you are, here?

Mike: I think what Kate is asking is that, if you want to look at whatever utilitarian policy, whatever it is, you want to maximize world wealth, and I think a system that rewards merit is the one that we’ve pretty much all established, is what is best for all of us, despite the fact that some of us may be in the 2^nd percentile and some may be in the 98^th percentile, at the end of the day it lifts that lowest based level… a community that rewards effort as opposed to innate differences.

Kate: I don’t understand how you’re rewarding someone’s effort who clearly has advantages throughout to get where I am here. I mean, I can’t say that somebody else who maybe worked as hard as I did would have had the same opportunity to come to a school like this…

S: Ok, let’s look at that point. Kate, you suspect that the ability to get into top schools may largely depend on coming from an affluent family, having a favorable family background, socio-cultural advantages, and so on?

Kate: I mean economic, but yes, social, cultural, all of those advantages, for sure.

S: Someone did a study… of the 146 selective colleges and universities in the US, and they looked at the students in those colleges and universities to try to find out what their background was, their economic background, what percentage do you think come from the bottom quarter of the income scale? You know what the figure is? Only 3% have students at the most selective colleges and universities come from poor backgrounds. Over 70% come from affluent families. Let’s go one step further then and try to address Mike’s challenge.

Rawls actually has two arguments, not one, in favor of his principles of justice – and in particular – of the Difference Principle. One argument is the official argument, i.e., what would be chosen behind a veil of ignorance. Some people challenge that argument saying: maybe people would want to take their chances… Maybe people would be gamblers behind the veil of ignorance hoping that they would wind up on top. That’s one challenge that has been put to Rawls.

But backing up the argument from the original position is a second argument, a straightforwardly moral argument, which goes like this: It says, the distribution of income, wealth and opportunities should not be based on factors for which people can claim no credit. It shouldn’t be based on factors that are arbitrary from a moral point of view. Rawls illustrates this by considering several rival theories of justice. He begins with a theory of justice that most everyone these days would reject – a feudal aristocracy.

What’s wrong with the allocation of life prospects in a feudal aristocracy?

Rawls says, well, the thing that’s obviously wrong about it, is that people’s life aspects are determined by the accident of birth – i.e., born to a noble family or to peasants and serfs --- and that’s it – you can’t rise out of it –it’s not your doing where you wind up or what opportunities you may have. But that is arbitrary from a moral point of view. And that objection to feudal aristocracy has led people to say: careers should be open to talents, there should be formal equality of opportunity – regardless of the accident of birth; every person should be free to strive to work, to apply for any job in the society. And then, if you open up jobs and you allow people to apply to work as hard as they can, then the results are just. So, it’s more or less the libertarian system that we’ve discussed earlier.

What does Rawls think about this? He says it’s an improvement because it doesn’t take as fixed – the accident of birth. But even the formal equality of opportunity – the libertarian conception – doesn’t extend it’s incite far enough. Because if you let everybody run the race, everyone can enter the race, but if some people start from different starting points, that race isn’t going to be fair. Intuitively, he says, the most obvious injustice of this system is that it permits distributive shares to be improperly influenced by factors, arbitrary from the moral point of view, such as whether you got a good education, or not… whether you grew up in a family that supported you in your development of your work ethic, and gave you the opportunities. So that suggests moving to a system of fair equality of opportunity – what Mike was suggesting earlier… what we might call a “merit based” system, a meritocratic system. In a fair meritocracy the society sets up institutions to bring everyone to the same starting point before the race begins… equal education opportunities, Head Start Programs, support for schools in impoverished neighborhoods, so that everyone, regardless of their background, has a generally fair opportunity – everyone starts from the same starting line.

Well, what does Rawls think about the meritocratic system? Even that doesn’t go far enough in remedying or addressing the oral arbitrariness of the “natural lottery.” Because if you bring everybody to the same starting point and begin the race, who’s going to win the race? The fastest runners would win – but is it their doing that they happen to be blessed with the athletic prowess to run fast?

So, Rawls says, even the principle of meritocracy, where you bring everyone to the same starting point, may eliminate the influence of social contingencies and upbringing “… but it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents.” And so he thinks that the principle of eliminating morally arbitrary influences in the distribution of income and wealth requires going beyond the meritocratic system. Now, how do you go beyond?

You bring everybody to the same starting point and you’re still bothered by the fact that some are fast runners and some are not, what can you do? Well, some critics of a more egalitarian conception say the only thing you can do is handicap fast runners – make them wear lead shoes… But who wants to do that (that would defeat the whole point of running the race!)?

But Rawls says you don’t have to have a kind of leveling equality if you want to go beyond a meritocratic conception. Rather, you commit, you may even encourage, those who may be gifted to exercise their talents, but what you do is change the terms on which people are entitled to the fruits of the exercise and those talents. And that really is what the Difference Principle is – you establish a principle that says, people may benefit from their good fortune – from their luck in the genetic lottery, but only on terms that work to the advantage of the least well-off. And so, for example, Michael Jordan can make 31 million dollars, only under a system that taxes away a chunk of that to help those who lack the basketball skills that he’s blessed with. Likewise Bill Gates can make his billions, but he can’t think that he’s somehow morally deserves those billions. “Those who’ve been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out.” That’s the Difference Principle; and it’s an argument from moral arbitrariness.

Rawls claims that if you’re bothered by basing distributive shares on factors arbitrary from a moral point of view, then you don’t just reject a feudal aristocracy for a free market, you don’t even rest content with a meritocratic system that brings everyone to the same starting point, rather, you set up a system where everyone, including those at the bottom, benefit from the exercise and the talents held by those who happen to be lucky.

Who finds that argument unpersuasive – the argument from moral arbitrariness?

In an egalitarian system, would the more talented people still want to work hard, if they know that they will have to give away a part of what they’ve made? Would not the best system to exercise their talents be a meritocracy?

Does it bother you that in a meritocratic system, even with fair equality of opportunity, people get ahead, get rewards, that they don’t deserve… simply because they happen to be naturally gifted?

Would not correcting for this arbitrariness be detrimental – because it would reduce incentives?

We all have some sort of “undeserved glory” of some sort, so should you be satisfied with the process of your life – because you have not created any of this? From a societal standpoint, should we not have some kind of a gut reaction to the “minority” (well-endowed, wealthy) being oppressed by the majority? Why even put in the effort?

Effort? Rawls says that even the effort that some people expend: conscientious driving, he work ethic,… even effort depends on fortunate family circumstances – for which you, we, can claim no credit. … Psychologists say that work ethic striving is related to the order of one’s birth. If the case for the meritocratic conception is that effort should be rewarded, doesn’t Rawls have a point that even effort, striving, work ethic, is largely shaped – even by birth order? Is it your doing that you were first in the birth order? [NO…] So, why should income and wealth and opportunities in life be based on factors arbitrary from a moral point of view? That’s a challenge that he puts to market societies, but also to those of us at places like “this,” i.e., Harvard U. A question to think about for next time…

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PART TWO: Rawls: WHAT DO WE DESERVE?

Professor Sandel recaps how income, wealth, and opportunities in life should be distributed, according to the three different theories raised so far in class. He summarizes libertarianism, the meritocratic system, and John Rawls’ egalitarian theory. Sandel then launches a discussion of the fairness of pay differentials in modern society. He compares the salary of former Supreme Court Justice Sandra Day O’Connor ($200,000) with the salary of televisions Judge Judy ($25 million). Sandel asks, is this fair? According to John Rawls, it is not. Rawls argues that an individual’s personal success is often a function of morally arbitrary facts—luck, genes, and family circumstances—for which he or she cannot claim any credit. Those at the bottom are no less worthy simply because they weren’t born with the talents a particular society rewards, Rawls argues, and the only just way to deal with society’s inequalities is for the naturally advantaged to share their wealth with those less fortunate.

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We ended last time with the poll about birth order. 75-80 % were first born in Harvard Law School – how relate this to distributive justice? – three different theories of distributive justice (i.e., How should income, wealth and opportunities – “the good things in life” be distributed):

1. Libertarian answer: the just system of distribution is a system of “free exchange” (“free market” economy) – against a background of formal equality – which simply means that the jobs and careers are open to everyone. Rawls says this represents an improvement over Aristicratic and caste systems – because everyone can compete for every job – career is open to talents. And beyond that, the just distribution is the one that results from free exchange, … voluntary transactions… no more, no less. Then, Rawls argues, if all you have is formal equality - jobs open to everyone - the result is not going to be fair. Rather, it will be biased in favor of those who happen to be born into affluent families – who happen to have the benefit of good educational opportunities. And that “accident of birth” is not a just basis for distributing life chances. And so many people who notice this unfairness are led to embrace a system of “fair equality of opportunity.” That leads to the Meritocratic system.

2. Meritocratic – fair equality of opportunity… But Rawls says, even if you bring everyone to the same starting point in the race, what’s going to happen? Who’s going to win? The fastest runners. So once you’re troubled by basing distributive shares on morally arbitrary contingencies, you should, if you reason it through, be carried all the way to, what Rawls calls, the Democratic Conception.

3. Egalitarian Conception – a more egalitarian conception of distributive justice that he defines by the Difference Principle. Now, he doesn’t say that the only way to remedy or to compensate for differences in talents and abilities is to have a kind of “leveling equality” – a guaranteed equality of outcome – but he does say that there’s another way to deal with these contingencies. People may gain, benefit from their good fortune, but only in terms of what works to the advantage of the least well-off. And so we can test how this theory actually works by thinking about some pay differentials that arise in our society.

What does the average school teacher make? In the US roughly $42,000/year. What about David Letterman, how much do you think he makes? $31 million. Is that fair??? Well, Rawls’ answer would be, it depends on whether the basic structure of society is designed in such a way that Letterman’s $31 million is subject to taxation – so that some of his earnings are taken for the advantage of the least well-off.

One other example of a pay differential – a justice of the US Supreme Court, what do they make? Around $200,000. But there’s another judge who makes much more – Judge Judy (of TV fame): $25 million. Now, is that just? Is it fair? Well, again, the answer depends whether this is against a background system, in line with the Difference Principle, where those who come out on top in terms of income and wealth are taxed in a way that benefits the least well-off members of society.

Let’s examine now some objections to Rawls’ Egalitarian theory… the Difference Principle. There are at least three objections:

1. Incentives… risk that if taxes reach 70-90% marginal rate, that Michael Jordan won’t play basketball; that Letterman won’t do late-night comedy; or that CEOs will go into some other line of work. Now, among those who are defenders of Rawls, who has an answer about the “need for incentives”?

a. Rawls’ answer is that there should only be so much difference that it helps the least well-off the most. So if there’s too much equality, then the least well-off might not be able to watch late-night TV, or might not have a job because their CEO doesn’t want to work. So, you need to find the correct balance where taxation still leaves enough incentive for the least well-off to benefit from the talents.

“The naturally advantaged are not to gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help the less fortunate as well.

2. Meritocratic position: Effort and moral dessert: What about effort? What about people working hard, having a right to what they earn because they deserve it, they’ve worked hard for it?

a. Now, his reply to the defender of a Meritocratic conception – who invokes effort as the basis of moral dessert. People who work hard to develop their talents, deserve the benefits that come from the exercise of those talents. The beginning of Rawls’ answer goes back to that poll we took about birth order: Even the work ethic, even the willingness to strive conscientiously, depends on all sorts of family circumstances and social and cultural contingencies for which we can claim no credit. You can’t claim credit for the fact that you, most of you/us, happen to be first in birth order (42.24) and that, for some complex, psychological and social reasons, that seems to be associated with striving, achieving, effort… that’s one answer.

b. Those who invoke effort do not really believe that moral dessert attaches to effort. Take two construction workers, one is strong and can raise four walls in an hour without even breaking a sweat, and another worker is small and scrawny and has to spend three days to do the same amount of work. No defender of meritocracy is going to look at the effort of that weak and scrawny worker and say he deserves to make more. So, it isn’t really effort. This is the second reply: It isn’t really effort that the defender of meritocracy believes is the moral basis of distributive shares; it’s contribution: How much do you contribute? But contribution takes us straight back to our natural talents and abilities, not just effort. And it’s not our doing how we came into the possession of those talents in the first place.

3. The idea of Self-ownership: Another objection from the libertarian perspective: Doesn’t the Difference Principle, by treating our natural talents and endowments and income as “common assets” – doesn’t that violate the idea that we own ourselves?

a. 1^st Libertarian position: Friedman writes in his book “Free to Choose”: “Life is not fair. It is tempting to believe that government can rectify what nature has spawned.” The only way to rectify that is to have a leveling equivalent of outcome – everyone finishing the race at the same point – and that would be a disaster. i.e., lassez-faire economists: life is unfair – get over it!

This is an easy argument to answer, and Rawls addresses it (Theory of Justice, sec. 17): “The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.”

b. 2^nd Libertarian position: The most powerful argument against the Difference Principle is from the argument about self-ownership – developed by Nozick. And from that point of view it might be ok to set up HeadStart programs and public schools – so that everyone can go to a decent school and start the race at the same starting line. That might be good. But if you tax people to create public schools – against their will – you coerce them – it’s a form of THEFT. If you take some of Letterman’s $31 million – tax it away to support public schools – against his will, the State is really doing no better than stealing from him – it’s coercion. And the reason is, we have to think of ourselves as owning our talents and endowments, because, otherwise, we’re back to just using people, and coercing people – that’s the Libertarian reply.

Rawls’ answer to that objection: He doesn’t address the idea of self-ownership directly, but the effect – the moral weight – of this argument for the Difference Principle is – maybe we don’t own ourselves in that thoroughgoing sense, after all. This doesn’t mean that the State is an “owner” in me, in the sense that it can simply commandeer my life – because, remember, the First Principle we would agree to behind the Veil of Ignorance is the Principle of Equal Basic Liberties: Freedom of Speech, Religious Liberty, Freedom of Conscience and the like. So the only respect in which the idea of Self-ownership must give way comes when we’re thinking about whether I own myself, in the sense that, I have a privileged claim on the benefits that come from the exercise of my talents in a market economy -- and Rawls says, on reflection, WE DON’T. We can defend rights; we can respect the individual; we can uphold human dignity without embracing the idea of self-possession. This is Rawls’ reply to Libertarians.

Alright, suppose you accepted these arguments: that effort isn’t everything, that contribution matters – from the standpoint of the meritocratic position – that effort even isn’t our own doing – does that mean that the objection continues? Does that mean that, according to Rawls, moral dessert has nothing to do with distributive justice?

Sendal: Well, YES. Distributive justice is not about moral dessert. Now, here, Rawls introduces an important and a tricky distinction: between moral dessert, on the one hand, and entitlements to legitimate expectations, on the other. What is the difference between moral desserts and entitlements? Consider two different games: a game of chance and a game of skill. Take a game of pure chance, e.g., the Massachusetts State Lottery, my number comes up – I’m entitled to my winnings… But because it’s just a game of luck, even though I’m entitled to them, there’s no sense in which I morally deserve to win in the first place: that’s an entitlement. Now, contrast the lottery with a different kind of game, a game of skill, e.g., the Boston Red Sox winning the World Series – when they win, they’re entitled to the trophy. But it can be always asked of a game of skill: Did they deserve to win? It’s always possible, in principle, to distinguish what someone’s entitled to under the rules and whether they deserve to win in the first place. That’s an antecedent standard: moral dessert.

Now, Rawls says distributive justice is not a matter of moral dessert, though it is a matter of entitlements to legitimate expectations. Here’s where he explains it: “A just scheme answers to what men are entitled to; it satisfies their legitimate expectations as founded upon social institutions. But what they are entitled to is not proportional to or dependent upon their intrinsic worth.”The principles of justice that regulate the basic structure do not mention moral dessert, and there is no tendency for distributive shares to correspond to it. Why does Rawls make this distinction? What morally is at stake?

One thing morally at stake is the whole question about effort - that we’ve already discussed. But there’s a second contingency, a second source of moral arbitrariness, that goes beyond the question of whether it’s to my credit that I have the talents that enable me to get ahead. And that has to do with the contingency that I live in a society that happens to prize my talents. The fact that D. Letterman lives in a society that puts a great premium/ value on a certain type of “smurky joke” – that’s not his doing! It’s lucky that he happens to live in such a society, but this is the second contingency – this isn’t something that we can claim credit for! 48.27

Even if I had sole, unproblematic claim to my talents and to my effort, it would still be the case that the benefits I get from exercising those talents depend on factors that are arbitrary from a moral point of view. What my talents will reap in the American economy: what does that depend on? – What other people happen to want, or like, in this society – it depends on the Law of Supply and Demand – that’s not my doing. It’s certainly not the basis for moral dessert. What counts as contributing depends on the qualities that this or that society happens to prize. Most of us are fortunate to possess in large measure, for whatever reason, the qualities that our society happens to prize – the qualities that enable us to provide what society wants. In a capitalist society it helps to have entrepreneurial drive; in a bureaucratic society it helps to get on easily and smoothly with superiors; in a mass democratic society it helps to look good on TV and to speak in short, superficial sound bites; in a litigious society it helps to go to law school and to have the talents to do well on the LSAT’s … But none of this is our doing.

Suppose that we, with our talent, inhabited not our society – technologically advanced, highly litigious one – but a hunting society or a warrior society: what would become of our talents then? They wouldn’t get us very far. No doubt some of us would develop others. But would we be less worthy, or less virtuous? Would we be less meritorious if we lived in that kind of society, rather than in ours? Rawls’ answer is: No. We might make less money and properly so. But while we would be entitled to less, we would be no less worthy, no less deserving than we are now. And here’s the point: the same could be said of those in our society who happen to hold less prestigious positions – who happen to have fewer of the talents that our society happens to reward. So here’s the moral import of the distinction between moral dessert and entitlements to legitimate expectations – we are entitled to the benefit that the rules of the game promise for the exercise of our talents. But it’s a mistake and a conceit to suppose that we deserve, in the first place, a society that values the qualities we happen to have in abundance.

Now, we have been talking here about income and wealth, but what about opportunities and honors? What about the distribution of access, of seats in elite colleges and universities? It’s true, all of you – most of you first born – worked hard, strived, and developed your talents to get here, but Rawls asks, in effect: What is the moral status of your claim to the benefits that attach to the opportunities that you have? Are seats in colleges and universities a kind of reward, an honor, for those who deserve them because they’ve worked so hard? Or are those opportunities and honors entitlements to legitimate expectations that depend for their justification on those of us who enjoy them – doing so in a way that works to the benefit of those at the bottom of society? That’s the question that Rawls’ Difference Principle poses. It’s a question that can be asked regarding the earnings of Michael Jordan and David Letterman and Judge Judy; but it’s also a question that can be asked of opportunities to go to the top colleges and universities. And that’s the debate that comes out when we deal with the question of Affirmative Action, next time.