Incentives and the Natural Duties of Justice

Politics (2000) 20(1) pp. 19 24 Incentives and the Natural Duties of Justice Colin Farrelly 1 In this paper I explore a possible response to G.A. Cohen s critique of the Rawlsian defence of inequality-generating incentives. Much of the debate on this topic has neglected the importance Rawls places on the principles that apply to individuals. I explore two possible strategies. First, to argue that self-seeking high-fliers fail to fulfil the natural duty to uphold justice; secondly, to argue that such individuals fail to fulfil the natural duty of mutual respect. These two strategies allow Rawlsians to argue that justice as fairness does require an ethos that is violated by the market behaviour of self-seeking high-fliers. Introduction John Rawls s difference principle allows for departures from equality provided that such socio-economic inequalities are to the greatest benefit of the least advantaged and attached to offices and positions open to all under conditions of fair equality of opportunity (see Rawls, 1971 and 1996). Such inequalities can benefit the least advantaged if they motivate the talented to be more productive than they would be if such incentives did not exist. G.A. Cohen s critique of the Rawlsian defence of inequalitygenerating incentives 2 has sparked much debate among defenders and critics of Rawls s theory of justice as fairness (see Cohen, 1992, 1995 and 1997; Bertram, 1993; Estlund, 1998; Williams, 1998). Cohen argues that the principles of distributive justice, principles, that is, about the just distribution of benefits and burdens in society, apply, whatever else they do, to people s legally unconstrained choices (Cohen, 1997, p. 3). In particular, Cohen claims that the demands of social justice apply to the legally unconstrained choices of self-seeking high-fliers. Such an ethos is undermined, claims Cohen, by Rawls s claim that the two principles of justice only apply to the basic structure of society that is, to society s main political, social and economic institutions. In this paper I shall explore a possible Rawlsian response to Cohen s critique that much of the recent literature has ignored. By focusing on the principles that apply to social systems and institutions, Cohen and other commentators have neglected Rawls s discussion of the principles that apply to individuals (see Rawls, 1971, pp. 108 117 and ch. VI). The principles of natural duty and obligation, claims Rawls, are an essential part of a conception of right: they define our institutional ties and how we become bound to one another. The conception of justice as fairness is incomplete until these principles have been accounted for (1971, p. 333). Once we consider what Rawls has to say about the principles that apply to individuals we see that these Colin Farrelly, University of Aberdeen Political Studies Association 2000. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA. 19

Incentives and Justice Farrelly Politics (2000) 20(1) pp. 19 24 principles require an ethos that is violated by the market behaviour of self-seeking high-fliers. In the next section I briefly outline Rawls s account of the principles for individuals. I then consider two possible strategies one could take to argue that the market behaviour of self-seeking high-fliers fails to fulfil the moral requirements of these principles. These strategies are: (1) To argue that self-seeking high-fliers fail to fulfil the natural duty to uphold justice. (2) To argue that self-seeking high-fliers fail to fulfil the natural duty of mutual respect. I subject these two proposals to the objection that they inspire an ethos that is too demanding on reasonable people. While each of the two strategies do face potential problems, I hope to show that they represent a viable avenue that Rawlsians should further explore. The principles for individuals After his defence of the principles that apply to institutions in A Theory of Justice (1971), Rawls claims that the parties in the original position must choose principles that are to apply to individuals. This aspect of Rawls s theory, which I feel is often overlooked both by Rawls and his critics, is an important part of justice as fairness. It is important to note that the claim that Justice is the first virtue of social institutions (Rawls, 1971, p. 3) does not mean that justice is only predicated of institutions and not of individuals. Consider the following assertion: Infancy is the first stage of human development. This claim could give rise to at least two possible interpretations, depending on which part of the sentence we emphasise. If we say that Infancy is the first stage of human development then we mean that it is infancy, and not, for example, adolescence or adulthood, which is the first stage of human development. But if we say that Infancy is the first stage of human development we mean that infancy is the first stage of human development and not the first stage in the development of something else, such as pop music or an allergy. I believe that this point is worth stressing because Rawls s emphasis on the justice of social institutions might lead one to conclude that he does not believe that it is the first virtue of other things (i.e. individuals). But this is mistaken. Just as the claim Infancy is the first stage of human development does not mean that one cannot also be committed to the claim that infancy is also the first stage of other things, Rawls s claim that justice is the first virtue of social institutions does not mean that he believes it is not the first virtue of individuals. I think Thomas Pogge makes this mistake in Realizing Rawls when he claims that Rawls has praised justice as the first virtue of social institutions and not as the most noble personal virtue or human sentiment. He is concerned with such issues as the organization of the economy, of government and political participation, and of legal and penal systems (Pogge, 1989, p. 93). While I agree with Pogge that Rawls is concerned with these various institutions, I believe Rawls is also concerned with, for example, civic virtues and the practical reasoning of citizens. 3 And for this reason, Rawls s egalitarian theory rests on the assumption that justice is also the first virtue of individuals. No matter how pious or prudent an individual is, for example, if they are not just then they lack the most important virtue of all. A just society could not exist, let alone be stable, if the practical reasoning of its citizens were not governed by the dictates of justice. As Rawls recently remarks in the Introduction to the Paperback Edition of Political Liberalism: We must start with the assumption that a reasonably just political society is possible, and for it to be possible, human beings 20 Political Studies Association 2000

Politics (2000) 20(1) pp. 19 24 Incentives and Justice Farrelly must have a moral nature, not of course a perfect nature, yet one that can understand, act on, and be sufficiently moved by a reasonable political conception of right and justice to support a society guided by its ideals and principles (Rawls, 1996, p. lxii). In A Theory of Justice Rawls makes a distinction between natural duties and obligations. The parties in the original position must first choose the principles that apply to institutions for these determine, to a large extent, what the natural duties and obligations of individuals are. Let us first consider Rawls s discussion of obligations. Obligations are distinct from other moral requirements. Rawls emphasises three characteristic features of obligations: (1) how they arise, (2) how their content is defined, and (3) who they are owed to. For one thing, they arise as a result of our voluntary acts; these acts may be the giving of express or tacit undertakings, such as promises and agreements, but they need not be, as in the case of accepting benefits. Furthermore, the content of obligations is always defined by an institution or practice the rules of which specify what it is that one is required to do. And finally, obligations are normally owed to definite individuals, namely, those who are cooperating together to maintain the arrangement in question (Rawls, 1971, p. 113). All of the obligations that apply to persons, claims Rawls, can be derived from the principle of fairness. The principle of fairness imposes on us an obligation to do one s fair share in a system we benefit from. Free-riders are the obvious example of people who fail to fulfil this obligation. By accepting the benefits of co-operation but failing to fulfil the burdens of co-operation, free-riders lack a sense of fair play. Rawls claims that the notion of obligations, as distinct from natural duties, helps us with the case of political officers. Members of political office, for example, must fulfil a number of moral requirements beyond those expected of the average citizen. Judges, members of parliament, etc., have voluntarily taken on their roles and thus are bound even more tightly to the scheme of just institutions. 4 Natural duties differ from obligations in that they do not have the three characteristics noted above. Natural duties apply to individuals without regard to our voluntary acts. Their content is not, in general, defined by the rules of these arrangements; natural duties hold between all as equal moral persons, irrespective of their institutional relationships. Natural duties include both positive and negative duties. The former include the duty to uphold justice, the duty of mutual aid and the duty of mutual respect. The negative duties include the duty not to injure and the duty not to harm the innocent. These are, claims Rawls, the principles (for individuals) that would be chosen in the original position. Let us briefly consider the two natural duties I am most concerned with in this paper the duty to uphold justice and the duty of mutual respect. The duty to uphold justice has two parts. First, we are to support and to comply with just institutions that exist and apply to us; and secondly, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves. The duty of mutual respect is another important element in Rawls s account of the ideals of democratic citizenship. We have a duty to show a person the respect which is due to him as a moral being, that is, as a being with a sense of justice and a conception of the good (Rawls, 1971, p. 337). This mutual respect for others can be expressed in different ways for example, when we are willing to see the situation of others from their point of view, or when we are prepared to give reasons for our actions whenever the interests of others are materially affected. The parties in the Political Studies Association 2000 21

Incentives and Justice Farrelly Politics (2000) 20(1) pp. 19 24 original position would choose this duty because it is essential for the most important primary good self-respect. Now the reason why this duty would be acknowledged is that although the parties in the original position take no interest in each other s interests, they know that in society they need to be assured by the esteem of their associates. Their selfrespect and their confidence in the value of their own system of ends cannot withstand the indifference much less the contempt of others. Everyone benefits then from living in a society where the duty of mutual respect is honored. The cost to self-interest is minor in comparison with the support for the sense of one s own worth (Rawls, 1971, p. 338). Do self-seeking high-fliers fulfil the natural duties of justice? Having outlined Rawls s account of the principles that apply to individuals we can now consider the question of whether or not self-seeking high-fliers fulfil the natural duties of justice. Let us consider, in turn, the duty to uphold justice and the duty of mutual respect. I believe one could make the case that self-seeking high-fliers fail both of these duties and I shall briefly outline what I think are the potential strengths and weaknesses of these two strategies. The duty to uphold justice requires us to assist in the establishment of just arrangements when they do not exist, at least when this can be done with little cost to ourselves. Do self-seeking high-fliers assist in the establishment of just institutions? One might argue that they do not when they demand excessively high post-tax wages before they will be more productive. While I think this strategy has potential, one must be cautious about pursuing this line of argument too far, as it runs the risk of failing Rawls s stipulation that one assist in the establishment of just arrangements when this can be done with little cost to ourselves. This condition is violated if one pushes the argument to the point where this duty requires the talented to choose jobs best suited to their talents so that more will be produced. This type of wide ethos 5 is incompatible with the value of autonomy, which requires individuals be free to choose, for example, which training and jobs they wish to pursue. Rawls explicitly claims that the principles of individual duty and obligation do not make the demands of justice all controlling (see Rawls, 1971, p. 565). The least the natural duty to uphold justice could reasonably demand in this respect is, I think, that self-seeking high-fliers should support a political party that would implement a redistributive plan that would come closest to meeting the demands of the difference principle. 6 Yet such a minimal requirement, by itself, posits incompatible motivations. It allows citizens to be egoists in their market behaviour but requires them to be fairminded in the voting box. Such a scenario is implausible. If self-seeking high-fliers demand a higher post-tax income before they will be more productive then they would either (a) not endorse a redistributive policy that would result in taking a large part of their high income, or (b) endorse such a policy but, assuming it actually went through, would refuse to be more productive as the only incentive (i.e. a higher income) would be taxed away. So the duty to uphold justice must also apply, at least to some extent, to the market behaviour of self-seeking highfliers. Another strategy is to argue that selfseeking high-fliers fail to fulfil the duty of mutual respect. When the talented choose not to work as productively as they would if given an excessively higher post-tax wage, do they show the least advantaged in society the respect which is due to them? That is, are these talented people willing to see the situation from the least advantaged s point of view? I think it is reasonable to say they are 22 Political Studies Association 2000

Politics (2000) 20(1) pp. 19 24 Incentives and Justice Farrelly not. If they did, then they would see that refusing to work productively without a greater post-tax income can have devastating consequences for the least advantaged in a society. By withholding their talents, the talented could threaten the high level of productivity needed to meet the basic needs of the worst-off members in society. Or, even in a society that has a minimum safety net in place, the action of self-seeking high-fliers could threaten real political equality if there are no institutional mechanisms in place to ensure a decent distribution of income and wealth. If the gap between the best-off and the worst-off members of society is too extensive this threatens to undermine the first principle of justice. As Estlund points out, the first principle of justice may place its own limits on economic inequality, and they may be more severe than the Difference Principle s limits (Estlund, 1998, p. 110). Let us now consider an objection to this second strategy. Like the first strategy, one could argue that the ethos of mutual respect gives rise to a form of moral rigorism which people could reasonably reject. It fails to recognise that many inequality-producing incentives will still be required by many conscientious citizens who exercise prerogatives we feel are reasonable, such as the pursuit of the interests of one s family, loved ones and friends. To reply to this criticism I think we should turn to the second way Rawls claims one could show respect for others; that is, by requiring the talented to be prepared to give reasons for their actions when the interests of others are materially affected. This will allow the reasonable prerogatives that Cohen and Estlund acknowledge to be permitted while rejecting those prerogatives that are excessively egoistic. The (moral) requirement that the talented give reasons to the least advantaged would reveal that the motives of self-seeking high-fliers are not publicly justifiable. But this strategy also runs into further complications. Consider the following example. 7 Beth is a high-flier and would be more productive if the extra income she earned would allow her to provide a certain kind of life for her family. Without the incentive of a higher post-tax wage, Beth would prefer to be less productive and spend the extra time and resources with her family. Is Beth being reasonable? Is her appeal to such reasons publicly justifiable? Much depends on the level of incentives Beth requires, as well as the kind of life she wants for her family. Beth might want a higher post-tax wage so she can afford to send her children to college. Such a reason could be justified to others. But if Beth s reason for wanting a very high post-tax income is that it would allow her family to live in the best house, drive the most expensive car, eat at the most expensive restaurants and pursue the most expensive hobbies, and that if she cannot give her family these goods she will not be more productive, then the worst-off in society could argue that such reasons are not valid. Despite the fact that there is no precise formula for figuring out exactly when such prerogatives are permissible, there clearly are cases where the motive of affection is reasonable and others where the demands of social justice should take precedence. Conclusion Rawls s emphasis on the duty to uphold justice and the duty of mutual respect shows that his theory of justice does require the market behaviour of individuals to respect a fraternal ethos. The personal is, for Rawls, also political. The debate concerning the difference principle has tended to neglect the role the principles for individuals play in Rawls s theory. This, I believe, is unfortunate. One prominent communitarian critic shows his failure to see the importance and scope of these principles when he claims that, according to Rawls s liberalism, the average citizen is without any special obligations to his or her fellow citizens, apart from the universal, natural duty not to commit injustice Political Studies Association 2000 23

Incentives and Justice Farrelly Politics (2000) 20(1) pp. 19 24 (Sandel, 1996, p. 14). I hope this paper has shown that this claim is false, and that the spirit of fraternity is alive and well in Rawlsian justice. Rawls s theory invokes a robust account of the responsibilities of citizenship, responsibilities that self-seeking high-fliers fail to fulfil. Notes 1 I am grateful to two anonymous referees for their helpful comments. 2 The incentives Cohen criticises are those that are necessary only in an intentionrelative sense, that is, incentives the talented choose not to work as productively without. The incentives I discuss in this paper are these types of incentives and not incentives that the talented would be incapable of working more productively without, nor those that a person might require as a result of pursing self-interest to some reasonable extent. Cohen does affirm what Samuel Scheffler (1982) calls agentcentered prerogatives. See Cohen, 1992, pp. 302 303. 3 I have tried to emphasise these points in my other defences of Rawlsian justice. See Farrelly, 1999a, 1999b and 1999c. 4 Rawls seems to have merged the notions of obligation and natural duty under the idea of public reason in his later writings. See Rawls, 1996 Lecture VI and Rawls, 1997. 5 I follow Williams s (1998) distinction between a narrow and wide ethos. The former comprises only distributive requirements that place limits upon the talented individuals receiving unequally large rewards. A wide ethos contains additional productive requirements, which are relevant when deciding which training or jobs to pursue. A wide ethos therefore governs career choice as well as wage negotiation (Williams, 1998, p. 235). 6 Rawls claims that the idea of public reason requires citizens, when deliberating and voting on constitutional essentials and questions of basic justice, to vote in a way that could be justified to free and equal moral persons. The liberal principle of legitimacy imposes a moral duty of civility on us so that our exercise of political power is proper only when we sincerely believe that the reason we offer for our political actions may reasonably be accepted by other citizens as a justification for those actions (Rawls, 1996, p. xlvi). The duty of civility also involves a willingness to listen to others and a fairmindedness in deciding when accommodations to their views should be reasonably made (Rawls, 1996, p. 217). 7 This example was raised by an anonymous referee. References Bertram, C. (1993), Principles of Distributive Justice, Counterfactuals and History, Journal of Political Philosophy 1(3), pp. 213 228. Cohen, G.A. (1992), Incentives, Inequality, and Community in G. Peterson (ed.), The Tanner Lectures on Human Values, Vol. 13., Salt Lake City: University of Utah Press. Cohen, G.A. (1995), The Pareto Argument for Inequality, Social Philosophy and Policy 12(1), pp. 160 185. Cohen, G.A. (1997), Where the Action Is: On the Site of Distributive Justice, Philosophy and Public Affairs 26(1), pp. 3 30. Estlund, D. (1998), Liberalism, Equality, and Fraternity in Cohen s Critique of Rawls, Journal of Political Philosophy 6(1), pp. 99 112. Farrelly, C. (1999a), Justice and a Citizens Basic Income, Journal of Applied Philosophy 16(3), pp. 283 296. Farrelly, C. (1999b), Public Reason, Neutrality and Civic Virtues, Ratio Juris 12(1), pp. 11 25. Farrelly, C. (1999c), Does Rawls Support the Procedural Republic?, Politics 19(1), pp. 29 35. Pogge, T. (1989), Realizing Rawls, Ithaca: Cornell University Press. Rawls, J. (1971), A Theory of Justice, Cambridge, Mass.: The Belknap Press of Harvard University Press. Rawls, J. (1996), Political Liberalism (paperback edition), New York: Columbia University Press. Rawls, J. (1997), The Idea of Public Reason Revisited, University of Chicago Law Review 64(3), pp. 765 807. Sandel, M. (1996), Democracy s Discontent, Cambridge, Mass.: The Belknap Press of Harvard University Press. Scheffler, S. (1982), Rejection of Consequentialism, Oxford: Clarendon Press. Williams, A. (1998), Incentives, Inequality, and Publicity, Philosophy and Public Affairs 27(3), pp. 225 247. 24 Political Studies Association 2000