SOME THOUGHTS ON INSTITUTIONAL DESERT

There is a point about desert that Fred Feldman and Brad Skow get wrong in their SEP entry on desert. They distinguish between desert and entitlement (their terms; other terms would be ‘pre-institutional desert’ and ‘institutional desert’). There should be a threefold distinction here, not a twofold distinction.

If a convention or institution specifies that, if someone makes a certain mark, then they are to be rewarded or honored in a certain way, Feldman and Skow say there is entitlement, not desert (they want to reserve the term ‘desert’ for pre-institutional desert). However, it is both true that the winner of the footrace deserves (or is entitled to) the specified prize for winning and that the person who is fastest (but failed to win due to happenstance) deserves to have won. The former is institution-dependent in an obvious way, but so is the latter. Neither makes sense except relative to the conventions of a contest (and similarly for other conventions or institutions). We might call the first procedural or specified-reward institutional desert and the second substantive institutional desert with respect to what is meant to be (but might not always accurately be) measured by the making of the mark. (The basic point here is not original to me: Scanlon makes a version of this point in his 2013 article, “Giving Desert Its Due.”)

Both procedural and substantive institutional desert should be contrasted with natural or genuinely convention- and institution-independent desert. Like Frankie deserving not to be wronged by Genu. Or Genu deserving to be condemned for his wrongdoing. (However, matters are less clear when it comes to things like punishment and rectification: at least arguably, these are “deep” cultural artifacts and hence count as institutional forms of desert, though perhaps forms of desert with very strong normative backing.)

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Institutional desert can have various degrees of positive or negative normative backing (or be neutral). Zippy wins the “murdering people” game by murdering the most people in the allotted time (thus deserving any specified prizes or honors), but perhaps Pinhead was the most murderous contestant and failed to win only because he had the bad luck of his favorite murder implement being broken. Each of these matters of persons having or getting something (of benefit to them) is valuable (impersonally valuable), I think, only in the specialized sense of “value in or relative to the practice or convention or institution.” This is independent of whether the institution itself is good, bad or neutral. Both Zippy getting the prize and Pinhead winning demand impersonal moral approval only from within the perspective of the practice (its procedures, its aims).

I take Sher’s implied explanation (of procedural institutional desert — he explains away rather than explaining substantive institutional desert) to appeal to the obligation of veracity (in that giving the prize includes expressing that the person has made the mark) and the obligation of fidelity (we have agreed to give you the prize or distinction if you make the specified mark). (See Sher, Ch. 7 Desert.) The step he does not make explicit is this: obligations being adhered to is an impersonally valuable thing. This, I think, is plausible (e.g., we should approve of and promote people not wronging each other).

On this interpretation of Sher, Zippy deserving his honors or rewards comes to it being genuinely valuable that he gets them (because his getting them is an instance of people meeting their veracity and fidelity obligations). In my view, by contrast, what matters for desert is that, for any arbitrary practice, relative to being seriously committing to it and participating in it (or the like), it is appropriate that one approve of the practice going as it is meant to. But this conditional appropriateness in approval is not of the right sort to generate things being genuinely valuable (only valuable relative to the practice, as indicated). 

There are three good reasons weighing against Sher’s view. First, even if relevant parties are prima facie (or in a respect) obligated to give Zippy his rewards or honors (due to veracity, fidelity), what they are actually obligated to do (or obligated to do, all-in) is put a stop to the murdering-people contest! If so, then what they are doing in giving Zippy the honors and rewards is wrong — and so impersonally, genuinely bad. Second, Zippy getting his reward would still be a good thing (in the relevant sense of ‘good’) if, due to some kind of chance event or execution error — but not due to anyone meeting their obligation — he ended up with the prize. This suggests that Zippy getting the rewards and honors is good (in some sense) but not due to obligations being met. Third, as mentioned, Sher’s account has to explain away, rather than explain and justify, Pinhead deserving to win the murder game. But he does. These are, I think, pretty good reasons to prefer my impersonal-value-based approach to institutional desert to Sher’s similar approach. 

11 thoughts on “SOME THOUGHTS ON INSTITUTIONAL DESERT

  1. So I’ve mulled your post over now (in a serious way). You definitely have a point: institutional considerations enter into what Feldman and Skow regard as claims of desert. So I agree that there are more than two concepts operating here. But the very idea of “substantive institutional desert” (like “substantive due process” in constitutional law) suggests that natural justice plays a role in generating desert claims when it comes to institutional rules and structures. How the two things–natural justice and institutional justice–connect is a hard issue I haven’t really figured out yet. So for now, I’m going to punt on offering a direct response to your comment. But I do want to nibble a bit at the edges, or at one edge.

    Both you and Sher agree on a “pre-theoretical” intuition that I find implausible: in competitive contexts where desert claims are fixed by institutional rules, one party can “deserve” the institutionally-defined reward even if he or she loses the contest. I wonder if some headway can be made by simply focusing on this one particular case.

    Take athletic contexts–a soccer match, a race, even a game of so-called “football.” The game is competitive, and structured by rules. The rules are fairly determinate. Practically speaking, the rules are designed to yield a single unique winner of any given contest. So imagine a case where the rules are followed, and of two parties, A and B, A wins. Both you and Sher are inclined to say that there are contexts in which B might lose, yet “deserve” to win. I don’t really understand what that means.

    The cases you have in mind are cases in which B plays at a higher level than A, but A is favored by luck, and thus wins without deserving to win. So B “deserves” to win in virtue of playing at a higher level than A; A doesn’t deserve the prize because it wasn’t genuinely merited.

    The first thing I’d say is that I don’t really see how this applies to, say, purely human-powered races (as opposed to races involving animals or vehicles). You win a race by running faster, or swimming faster, than the other person. In what sense can the loser of a race run “better” than the winner if the winner wins fair and square? We could even take a case where the deserving winner/de facto loser loses the competition through some chance misexecution. Why doesn’t that make him unfortunate rather than deserving?

    On p. 59 of Desert, Sher contrasts a violinist who practices for twenty years and one who would have done so but for suffering from arthritis. The first violinist might deserve recognition for her musicianship, but (Sher says) the second would not; hypothetical desert is not desert. In this case, it’s just plain old misfortune. You might deserve something in virtue of being unfortunate (like medical care), but you wouldn’t deserve recognition as a great violinist, because you weren’t one. If the arthritic would-be violinist doesn’t deserve recognition as a great violinist, why does the runner-who-gets-a-cramp-halfway-through-the-race deserve to win, or even deserve recognition for having run a “superior” race? A race seems like the kind of thing one can’t judge until the very end. But at the end, it’s precisely the winner who deserves the prize.

    The second thing I’d say is that putting myself aside, everyone in our discussion group (and most people generally) think that you can deserve the results of something that is itself the product of luck. For instance, you can deserve recognition/prizes (etc) as an Olympic marathoner even if you were born with (inherited) mere anatomical/physiological gifts that make you a better runner than 99.99% of the population (and indeed, in principle, better than all of your competitors). So clearly, on a standard view, one can deserve things that are the results of processes that are purely a matter of good luck. If that’s true when it comes to “the natural lottery,” why isn’t it true of the good luck that obtains during the competition itself? If my inheriting a runner’s physiology doesn’t defeat my claims to winning races, why would my competitor’s tripping and falling, or suffering a cramp, do so?

    This appears to change (in some people’s eyes) if we change the example from races to say, a game. So imagine two teams, West Orange and West Amwell, playing a match (soccer, obviously). West Orange plays a “better” game than West Amwell, but West Amwell wins, 3-2. To say that West Orange “deserved” to win, I think we have to be in a position to know that West Amwell’s victory was purely a matter of luck. But there are several problems here. One is that I find it difficult on epistemic grounds to see how one can ever know this. It seems impossible to disentangle the roles of luck and skill in any of the relevant cases so as to declare the more skillful party “the deserving winner.”

    Beyond the epistemic problem, there’s a normative one. I’ve set things up so that the match was close, 3-2. But if West Amwell scored 3 goals, West Amwell can’t be operating purely by luck. They have to have some skill–enough skill to score three goals against the supposedly deserving West Orange. Further, if West Amwell scored that third goal by luck, why doesn’t that entail that West Amwell didn’t deserve to win as opposed to saying that West Orange did? To say that West Amwell didn’t deserve to win entails that they both deserved to tie, not that West Orange deserved to win.

    I think the preceding argument will work in any case where the score is close (including 1-0). But I don’t see how it makes any sense at all to say that West Orange “deserved” to win in a case where West Amwell ends up winning 6-0. Take a case where West Amwell wins 6-0 but plays “dirty.” And let’s say that West Orange played “clean.” Suppose, further that West Amwell’s dirty playing was rule-adherent. In other words, they played “dirty” but didn’t commit any overt fouls. Even in that case, I don’t see the pressure to say that West Orange deserved to win. They deserve to be praised for playing clean, but they didn’t deserve to win. The person who thinks they do has failed to grasp that dirty playing is an instrumentally rational means of winning against a competitor that refuses to follow suit. And the strategic use of instrumental rationality is part of what it means to deserve victory in a competitive context.

    I won’t try to multiply cases, but I”ve thought through a bunch of other cases, and can’t seem to get my mind around the “played well, hence deserved to win” intuition in cases where the deserving player ends up losing.

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    • Well, the New England Patriots just won, but it is not clear that they deserved to win. I think everyone knows exactly what I mean, here (and have similar intuitions in similar cases). I’m at a bit of a loss if one denies such intuitions. An approach like mine can also explain such cases: it would be appropriate for one to have a certain impersonal, moral satisfaction at the Houston Texans winning (and one might have reason to promote this happening, if one is in a position to do this). Which is to say: the Texans winning would have been non-instrumentally, impersonally valuable in the justice-y way. (But also: it is valuable, in a similar way, that the Patriots be credited with the win in the standings.)

      That does not address your points about the effect of luck in other sorts of cases. One point relevant to some of your cases, though, is just that what is deserved (by the slower runner who wins due to good luck, by the faster runner who lost) is different: the winner (who did not deserve to win) deserves the recognition/rewards/prizes for winning, the person who lost (but deserved to win) does not deserve the recognition/rewards/prizes for winning. I think the structure there is different from the contrasting violinist cases.

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      • I’m not trying to be difficult, or to argue disingenously. I sincerely do not get this intuition, or put differently, don’t accept it.

        The thing is, I accept intuitions that are in the general moral vicinity. For instance, consider a work context in which the institutional rules are written in such a way as to favor the bringing-about-of-X, and systematically reward it. I can easily imagine cases in which, in justice, the rules ought not to be written that way, so that someone fails to bring about X, and yet deserves to get the reward gotten by those who do. In this case, the intuition isn’t basic; it’s mediated by the assumption that institutional rules can violate the demands of non-institutional justice.

        I can also accept the application of the preceding to sports. Imagine a version of soccer minus the offsides rule. The offsides rule in soccer prohibits players from “lurking” behind the defense of the opposing team, and then receiving a pass that is converted into an easy shot on goal. Without the offsides rule, it would be possible for a team to mount an offense by simply stationing most of its players around the goal-line of the other team, physically crowding out the defense, then receiving passes from midfield, and scoring without effort.

        Call this “Offside Soccer.” If a team won at Offside Soccer, there is a sense in which they don’t deserve to win because no one can deserve anything in a context of that sort. The game is too absurd to license judgments of desert. In general, I see the point in saying that a team that lost a competition might have deserved to win if it was playing by fundamentally irrational rules. Even here, I would have to grant, strictly speaking, if someone insisted that we take the rules for granted, I would end up saying that the losing team deserved to lose at the irrational game. But at a different level, if we deserve rational treatment, perhaps what they really deserve in a second-order sense is a revision of the rules of the game. And we can imagine cases in which the deserving team would definitely have won the game had the rules been revised.

        But neither you nor Sher have contexts like that in mind. You’re taking the justifiability of the rules for granted, and assuming adherence to them. You’re then saying that in a competition where two competitors compete, both of them in adherence to the rules (where the rules themselves are legitimate), and one competitor loses, the losing competitor can still deserve victory. It seems to me that this can only make sense in a case where one competitor plays at a higher level than than the other, but is somehow systematically cursed by bad luck throughout the whole competition, and the other party plays at a substantially lower level and is favored throughout by good luck. If we imagine luck as explaining the outcome, the losing party will have deserved to win. But that strikes me as an extremely implausible scenario, and still one where it’s more plausible to say that the losing party is an unfortunate loser, not that the losing party deserved to win.

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  2. Pingback: Desert and Merit (3) | Policy of Truth

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