Desert and Diachronic Fairness

Chapter 5 of George Sher’s Desert offers an account of retributivism according to which wrongdoing generates an unfair balance of benefits and burdens that requires redress. Because this imbalance exists at a given time, but is redressed across time, Sher thinks of retributivism so conceived as exemplifying a conception of diachronic fairness, that is, of fairness exemplified in an act of balancing across time. Chapter 6, “Desert and Diachronic Fairness,” seeks to articulate the principle involved, conceived generally enough to cover both punishments and rewards. 

After a bit of backing and forthing, Sher arrives at this candidate principle of diachronic fairness: 

DF3: For every good G, every person M, and every period of time P, if M has less (more) of G than he should during P, then M should have correspondingly more (less) of G or some related good than he otherwise should during some later period P’ (Sher, Desert, p. 94).

The “should” here is in effect outsourced to norms independent of desert. Desert functions to rectify past violations of these independent norms rather than to supply the content of norms on its own. Thus, if M steals G and holds G across duration P, then M’s having G at all is having “more G” than he should during P, and means that M should have “less G” (i.e., be deprived altogether of G) at some later time P’. The point, though, is that property rights in this example are the independent principle whose violation desert seeks to rectify. But desert does not, in itself, independently supply the content of a theory of property rights. Or so Sher suggests. So desert (as diachronic fairness) is in effect relegated to a sort of second-order role.

Though Sher argues arguments of sorts for DF3, I think it’s safe to say that he simply takes it as intuitively obvious. Barring Parfitian complications about personal identity (which would segment individual lives into temporal parts rather than treating them as single, temporally extended wholes) DF3 has an initial plausibility, covers the cases Sher wants it to cover, and is not susceptible of obvious counterexamples. The question then becomes how it relates to desert. We’ve already (in chapter 5) seen how DF3 relates to retributive desert: it rectifies the imbalance of burdens and benefits brought about by wrongdoing. But how does it relate to cases of deserved reward, e.g., deserved monetary compensation for work done? 

Brueghel and Rubens, “The Garden of Eden.” (Wikipedia Commons) No labor, no compensation required. But then they fucked it all up with that apple.

A basic problem Sher faces is that DF3 seems much better suited to describing rectificatory than allocative, distributive, or economic justice. In other words, it seems better suited to describing the rectification of wrongdoing than the compensation for work performed. DF3 is designed, explicitly, to respond to violations of pre-existing norms. But compensation for labor performed seems not to fit this pattern. Jokes and exaggerations aside, we don’t tend to think of the sheer existence of remunerative work as a violation of some norm requiring compensation that rectifies that violation. But Sher’s adoption to DF3 seems to commit him to just that. 

Before we get to that problem, we confront three initial problems. One is that Sher’s account of retributive desert seems to collapse the distinction between retributive punishment and compensation. Retributive punishment on Sher’s view is the correction of an imbalance in the burdens and benefits that obtain between claimants. It’s tempting to reduce this supposedly punitive correction to compensation as such: if you steal from me, you owe me compensation for having stolen from me, full stop. What better “correction of the imbalance” could there be?

But like many retributivists, Sher wants two distinct irreducible responses to the same wrongdoing. If I steal from Sher, he wants to be able to punish me and be compensated for the theft, even as he conceives of the punishment as the correction of an imbalance between us. He makes the relevant distinction by suggesting that wrongdoing produces two different imbalances requiring two different sorts of correction: an imbalance in the burdens of moral restraint, and an imbalance in the burdens of pain and loss (Sher, p. 97). When I steal from you, I unburden myself of a burden you bear (the burden of observing property rights), and I take something of value to you and thus deprive you or harm you. The first imbalance is rectified by retributive punishment, the second by compensation

It strikes me as systematically unclear how punishment so conceived actually rectifies anything. So the distinction Sher that seems so anxious to preserve strikes me as an unwarranted commitment to a form of double jeopardy. But as I’ve already made this criticism in a previous post, I mention it now to set it aside. 

A second initial problem is that a “correction” can offset a harm already incurred or forestall a harm yet to occur. It seems more natural to think of corrections as offsettings than forestallings. One offsets an existing imbalance, but one can’t “correct” an imbalance yet to take place. Sher argues plausibly enough that the concept of “correction” can (in some cases, at least) apply to both.  If you steal my car, and I need to drive it to work tomorrow, giving it back to me would both offset today’s violation and forestall tomorrow’s violation. In any case, your current possession of the car demands rectification now even if I don’t need it until tomorrow.* (As I suggest below, this strategy works better on some cases than on others.)

The explanation here lies less with DF3 per se than with the independent principle whose violation DF3 is called on to rectify–in this case, property rights. If I own my car, and you steal it, the fundamental imbalance requiring correction is your wrongful possession of the car via the violation of my property right in it, whether or not I need it right now. It’s not reducible to the inconvenience and anxiety I feel tomorrow when I look for my car, can’t find it, and can’t drive it. Sher correctly says that while DF3 doesn’t entail this, it’s consistent with it, and presents no obstacle to recognizing it. 

A third problem is that DF3 is supposed to rectify not just injustices but misfortune. We do feel it somehow unfair that a person should suffer enormous misfortune, and intuitively feel that such persons deserve a “break” from their misfortune in the form of compensation. DF3 would entail this result but only if we could conceive of misfortune as a violation of some norm. Though apparent misfortune often turns out to be explained by the violation of some moral norm, it is both conceptually and nomologically possible for systematic misfortune to exist without doing so. It’s hard to see what norm is violated in cases of pure misfortune apart from the “norm” generated by our empathetic sense that misfortune is a bad thing and should not prevail. But an expectation or a wish, however benevolent, is not a genuine moral norm. So it makes no sense to describe the disappointment of this expectation or wish as the violation of such a norm. It therefore makes no sense to say that misfortune as such triggers DF3

This brings us back to the main topic of the chapter, DF3’s application to compensation for work performed. A first point worth noting is that our question is what workers deserve in the way of compensation, something not addressed by what they agree to, or by what the market (or a planning commission) generates by the way of outcomes. Exploited workers can agree to unfairly low wages in a free market; slick con artists can induce agreement to unfairly high wages under the same conditions. So the task is to determine, to the extent possible, what people deserve independently of the bargains they strike, or (relatedly) what the market would bear by way of compensation. 

The most promising point of departure for Sher’s account (though not an unproblematic claim on its own merits) is to think of labor as a burden violating some norm set independently of desert, so that workers deserve compensation in virtue of the violation of this norm. If we think for instance of Adam and Eve as blameless and expelled unjustly from the Garden of Eden without good reason, we find them assuming the burdens of labor outside of the Garden of Eden. If life in the Garden was the norm, and labor-intensive life outside of it a burden assumed in violation of this norm, then we might think of wages, benefits, and the rest as compensation for the violation of this norm. 

Masaccio's “Expulsion from the Garden of Eden” Changed My Life - Artsy
Massacio’s “Expulsion from the Garden of Eden” (Wikipedia Commons). Compensation now required. Good job. Expected consequences? Hello?

This quasi-Biblical account has the merit of accounting for why so many of us experience work life as an onerous chore, but flouts conceptions of life–Marxian, Freudian, Randian–that take self-sustaining labor as an essential constituent of a flourishing life. On these latter views, Sher’s starting point is unjustified, and his account makes no overall sense. The Garden of Eden is the wrong baseline; labor is not a burden, but instead, as Marx put it, the “prime want” of a flourishing life; and the need to labor is not intelligibly construed as an imbalance requiring compensation, but an inalterable fact of nature. 

In any case, Sher borrows from David Miller three features of work life (apart from the fact of mutual agreement to labor, and the imperatives of supply and demand in the market) that underlie the thought that workers deserve compensation (from Miller’s Principles of Social Justice, pp. 102-21):

  1. Work can be difficult, unpleasant, and dangerous; those who confront these conditions seem to deserve compensation for doing so.
  2. Work requires the expenditure of effort; as we’ve seen from chapter 4, diligent effort is a basis of desert claims.
  3. Work requires the subordination of one’s purposes to those of another. This seems to require compensation on the Kantian grounds Sher had invoked in earlier chapters.

Though it would be nice to have a lexical ordering of these three considerations, Sher regards that as impossible, at least a priori. We can’t, sitting in an armchair, pronounce confidently on any particular lexical ordering of (1)-(3). The ordering is a contextual matter. 

Of the three considerations, (3) seems best to cohere with Sher’s overall account. The idea here is that as a fundamental moral matter, we are (on Kantian grounds) ends-in-ourselves with purposes of our own. The imperatives of survival require us to hire our labor out to others, subordinating our purposes to theirs. This fact by itself requires compensation apart from the fact that we agree to a compensation package. Hence the compensation we receive for work is over-determined. In one sense, it involves an employer’s promise to pay. In another sense, it involves compensation for our willingness to subordinate our purposes to that of the employer. In cases where the compensation due to the worker on the compensatory basis exceeds the amount due on the promissory basis, it is the compensatory benefits package that is deserved. 

Consideration (2) fits Sher’s account on the basis of the reasons given in chapter 4, in defense of diligent effort. Since diligent effort is a basis for giving the effort-expending person what she’s aiming at, then if she is aiming at wages, she deserves them, consistently with the account given in chapter 4. 

Consideration (1), though plausible, involves a somewhat uneasy fit with Sher’s account. When jobs are difficult, unpleasant, or dangerous, these features (Sher claims) vitiate workers’ desire to pursue their own aims without job-generated friction or interference. To this extent, workers who face these conditions are owed extra for doing so. It’s worth noting that occupational danger is a clear case in which compensation is owed in advance, not to offset but to forestall a burden. If I work in a dangerous occupation, the extra compensation I get can often be given in advance of the effects of this danger, assuming they ever materialize. If I’m a  hospital worker, for instance, I face the dangers of hospital-based infection. If I’m owed extra compensation for facing this danger, I may get the compensation before I ever contract an infection, and get it even if I never contract an infection. 

It’s not clear to me that Sher’s account of compensation-to-forestall-an-undue-burden adequately handles the hospital-worker case (as it does the case of the stolen car, given above). For one thing, though I agree that the hospital worker deserves extra compensation for facing danger, it’s not clear to me how the burden of facing that danger is undue in a sense that calls for redress. In agreeing to take the job, and (ex hypothesi) being informed of the dangers involved, the worker appears to assume the risks of doing so. The expected-consequence account likewise says that a hospital worker who knows that she will face infection on the job ought to expect infection as an occupational hazard. I don’t know whether Sher wants to say that when such a worker contracts a hospital-based infection, she deserves it or not. But whether he does or doesn’t, he does not contest the claim that worker assumes the relevant risks. 

So it’s not clear to me how compensation (in the sense of redress or rectification) can be owed for facing dangers that might materialize but never do. I worked for eight months in a hospital operating room during the height of the COVID pandemic. I was not vaccinated until the fourth month on the job. For those four months, I experienced a much higher than average exposure to COVID. Yet I didn’t get COVID (or at least a symptomatic version of it). If I had been paid “hazard pay” for facing this danger, would I now owe it back, given that the danger never materialized? 

I suppose Sher could argue that the danger I faced produced a certain anxiety that requires compensation. There’s some truth to that, but I don’t know how far it goes. I did feel some anxiety, particularly before I got vaccinated, but truth to be told, the anxiety wasn’t particularly intense. I suppose part of this was that I was wearing hospital-grade PPE, and was exercising extreme caution. Part of it was that the operating room, though subject to higher exposure than one would experience outside of a hospital, is still one of the least COVID-prone parts of the hospital (as compared with, say, the ER, the ICU, or a dedicated COVID ward).** But part of it was that I was just too tired to be anxious. The work was physically exhausting. There simply wasn’t the time or energy to feel anxiety (beyond the anxiety of finishing our assigned tasks before the shift ended, or facing a high-pressure situation requiring work done on an exigent, expedited basis). This supports compensation via (2), but doesn’t really help with compensation via (1). 

Yet another problem with considerations (1) and (2) is that apart from relatively extreme cases (particularly dangerous, unpleasant, difficult, or effort-requiring jobs), they seem inapplicable to a wide range of jobs. This is, of course, a debatable proposition, but there is some plausibility in saying that (1) does not really apply at all to white collar jobs, and (2) applies only in an equivocal way. So the real work in Sher’s account ends up being done by (3). We deserve wages, at root, because working for someone is effectively living for them, but if we are ends-in-ourselves in the Kantian sense, our lives exist for their own sake, not for others’. When they come to exist for others, as they do in the typical employment situation, the preceding Kantian stricture is violated. When it’s violated, it requires compensation. Salaries and benefits are that compensation, deserved by workers because they redress the imbalance produced by employment at another’s behest.

At this point, we have to deal with some “what abouts?”–obvious queries or objections arising from reflection on particular cases. 

What about productive output? Why don’t more workers deserve more in virtue of their productivity, and deserve less in terms of their lesser productivity? That’s the way compensation tends to work (or pretends to work) in the actual workplace. Sher handles this query by subsuming productivity under subordination. The more productive worker subordinates more of her life to her employer’s purposes, hence deserves more via consideration (3). 

What about people with special needs? When Sher was writing, in 1987, it was far less common than it is now to make workplace accommodations for people with special needs. Sher doesn’t address the question of whether a person with, say, some ADA-type disability deserves a job-with-special-accommodations ab initio. He instead addresses the issue of whether a job-holder with special needs deserves to have those needs accommodated. Sher doesn’t directly answer this question (so that his views express the pre-ADA consensus). He simply says that the demands of work cannot be so arduous “as to imply disrespect for a worker’s status as a purposive agent” (p. 104). 

This may sound vacuous, but I don’t think it is. It doesn’t settle the question of what does or doesn’t imply disrespect for a worker’s status as a purposive agent, but it presupposes that there is some such question to be asked, and answer to be given. Once we have the answer in hand, workers deserve what the answer says they deserve. This is to say that workers deserve a basic minimum of all of those workplace goods that bear on the respect they’re owed as purposive agents. They cannot be overworked. They cannot be subjected to undue risk or danger. They cannot be treated with contempt. They cannot be saddled with sub-standard equipment with which to do their jobs. They cannot be lied to or misled. Promises made to them have to be kept. One can’t demand the nomologically impossible or the physically or emotionally unfeasible of them. These may seem like minimal moral demands, but they are violated, en masse, at the vast majority of non-salaried, entry-level jobs, at least in the United States–even when it is instrumentally irrational for employers to do so. So while Sher’s view may sound conservative or reactionary to some ears, I’m inclined to think that it has far-reaching (and welcome) moral implications.  

What about people who love their jobs? A person who loves her job will not experience what she does as involving a subordination of her purposes to those of her employer. She will want to put forth the effort involved, and even welcome the difficulty, unpleasantness and danger involved in doing a tough job. Indeed, most of the nurses I know fit this description, some to the point of caricature (right, Lindsay?). There seems less to compensate in these cases, so Sher’s account seems to imply that such people deserve less by way of compensation. Where there is no sense of burden, there seems nothing to compensate. 

I can’t adequately summarize Sher’s response to this, so I’ll just quote it: 

For reasons yet to be considered, we believe that merit itself is a source of desert. Anticipating our later discussion, let us say that the meritorious deserve the recognition that a high salary implies. If they do, then the intuition that committed workers deserve to be well paid may also reflect this belief. Another possibility is that we expect even persons who love their work to have a second-level purpose not to be exploited. Or more simply, we may believe that exploitation is wrong regardless of a worker’s attitudes (Sher, p. 107). 

Well, then, what about people who hate their jobs? Do they deserve more because they experience their jobs as more difficult to do, because it takes them more effort to do those jobs, and because they feel a greater-than-ordinary sense of subordination to their employers’ purposes? 

Once again, I have to quote Sher rather than summarize him:

Just as a very willing worker is apt to perform well, a very unwilling one is apt to perform badly. The dissatisfied worker’s labor is likely to be relatively unproductive. This means that he is apt to be less deserving than others by one measure even if more deserving by another. In addition, it means that paying him more than others will give him undeserved recognition, and so will blur our recognition of genuine merit (Sher, p. 108).

That seems a very unKantian response. Imagine a worker who thoroughly hates her job, but does excellent work from the motive of duty, discharging an imperfect duty to herself to maintain her talents and a perfect duty to others to keep her contractual promises. Sher’s response does not handle this case at all. There is no reason to think that such a worker will perform her job badly. And contrary to Sher’s claim, we might think she deserves more credit rather than less, at least where moral credit is concerned: a person who puts forth enormous effort while hating a job seems to deserve more moral credit than someone who does well at the job because she has a special aptitude and inclination for the job, especially so if good fortune has simply handed the job to her. So it seems to me that this part of Sher’s account falls flat. 

Sher admits candidly that his defense of desert as diachronic fairness presupposes a specific conception of work. It presupposes a sort of Lockean individualism, and a sort of Rousseauan conception of work. DF3 presupposes (in somewhat Rousseauan vein) that work imposes burdens that require compensation. Consideration (3) above presupposes (in somewhat Lockean vein) that work involves a subordination of one’s purposes to those of one’s employer, a subordination that, in turn, requires compensation.*** But one needn’t conceive work that way. Marx didn’t, Freud didn’t, and Ayn Rand didn’t. For Marx, in an ideal communist society at any rate (though admittedly not before that), labor is “not only a means of life but life’s prime want.” Freud famously regarded love and work as the two essential constituents of a happy life. And Rand regarded productive work as “the central purpose of a rational man’s life, the central value that integrates and determines the hierarchy of all his other values.”**** 

On views like this, Sher’s account of just compensation will seem problematic–at best an account of what people deserve in the workplace in a fundamentally defective socio-economic system where work is widely misconceived and its institutional bases ill-arranged. His account of just compensation, then, is less a successful theory of what we deserve as compensation for work and more what we deserve when the world of work has gone badly awry. That will strike many readers as unsatisfying, which is how it struck me. 

That said, Sher implicitly raises many important questions about work, at least in passing. Here’s a laundry list: 

  1. Should deserved compensation be regarded as the “mirror image” of retribution for wrongdoing? Sher thinks so, but others (e.g., Rawls and less explicitly, Nozick) have thought not.
  2. Does Sher’s conception of work as requiring compensation presuppose a kind of Garden of Eden baseline of the sort I’ve used to explicate his account? If so, is that problematic or is it uncontroversial?
  3. Sher presupposes without argument that what workers deserve cannot be reduced to market-based wages they get as a result of bargains struck with employers under conditions of informed consent. Many libertarians would disagree. On many free market views, what workers deserve is simply reducible to what the market gives them (see, e.g., Leonard Peikoff, Objectivism, p. 395-406, esp. P. 400, and relatedly, Nozick, Anarchy, pp. 183-89). Does Sher have an answer to that objection?
  4. Does Sher’s account of compensation-as-forestalling work? Can we be compensated for harms that have not befallen us, and may never do so?
  5. Does Sher adequately handle the case of the person who loves her job? Relatedly, is his account significantly undermined by Marxian-Freudian-Randian conceptions of work? Do such M-F-R-type accounts have a rival theory of deserved compensation? (Ironically, the answer seems to be “no.”)
  6. Do women deserve compensation for childbirth? Sher’s account would seem to entail that they do, but he doesn’t address the issue. All three Miller-criteria are met in this case to a very high degree.
  7. Oddly, Sher doesn’t discuss what employers deserve by way of compensation. It’s hard to see how DF3 could account for high-dollar compensation in such cases.

Bottom line: I found Sher’s argument unconvincing, but found the chapter well worth reading.

*Sher invokes Nozick’s conception of offsettings from Anarchy, State, and Utopia to explicate the concept: 

Something fully compensates…person X for person Y’s action A if X is no worse off receiving it, Y having done A, than X would have been without receiving it if Y had not done A (Sher, p. 98, quoting Nozick, Anarchy, p. 57).

Though he doesn’t mention it, I wonder whether anything ever satisfies that description, at least in the case of a person of self-esteem who would never want to be wronged. Such a person would only be fully compensated if the wrongful act could literally be erased. Since wrongdoing can’t literally be erased, and some compensation is better than none, such a person would accept partial compensation, but be disinclined to call it “full compensation.” Full compensation in the sense Nozick describes only seems possible in very trivial cases of wrongdoing, or on theological assumptions where an infinite compensation (ordered by God) compensates for some finitely temporal harm. There may be some wrongdoings so trivial that a huge payout would fully compensate for their having taken place. Similarly, if the harm in question is finite in quantity, but (on theological grounds) the compensation infinite, perhaps the compensation thereby gotten is “full.” But however one slices it, there seems a magical component to Nozick’s principle. 

**Hospital operating rooms typically test candidate patients for COVID before surgery, excluding COVID positive patients from elective surgery. But urgent or emergency surgeries are done regardless of COVID-positive status, at considerable risk to the OR staff.

***There’s a sense in which Locke’s famous proviso on initial appropriation is the ur-instance of Sher’s DF3. In appropriating a resource, I have to leave “enough and as good” of it for others, a proviso met (on standard interpretations) if I appropriate it and employ them. The wage I pay them then becomes compensation for their inability to appropriate the resource, and their having to subordinate their purposes to mine. For a standard account see David Schmidtz’s “The Institution of Property” and “When Is Original Appropriation Required?”

****For Marx, see the Critique of the Gotha Programme, Part I (about three-quarters of the way through). It’s worth noting, however, that Marx’s dictum only applies within “a higher phase of communist society,” so that Sher’s account might well be consistent with Marx’s view in phases prior to that. On Freud, see Reuben Fine, Love and Work: The Value System of Psychoanalysis. On Rand, see “The Objectivist Ethics,” in The Virtue of Selfishness. The quotation comes from p. 27 of one of the many Signet paperback editions.

Thanks to the many nurses I know for sharing their workplace stories with me, but especially Lindsay Elliker, Jennifer Erickson, Nicole Morley, and Lisa Scheier, who’ve doubled or tripled my knowledge of the field. Thanks also to my buddies in OR EVS/Surgical Tech at HMC–Samantha, Brett, Seth, Ibrahim, Kojo, Holly, Steve, George, Jesus, Anita, and Lee–who taught me some philosophical lessons without meaning to.

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