The value or worth of a man is, as of all other things, his price; that is to say, so much as would be given for the use of his power, and therefore is not absolute, but a thing dependent on the need and judgement of another.

–Hobbes, Leviathan, I.10.16

Sher’s account of desert and merit raises many questions, so let me double back to consider some of these, some addressed in his chapter, some not. I’d originally thought I’d leave the criticisms of Sher’s chapter at a single post, but it turns out that my criticisms have eaten up more space than I’ve thought they would. So this series on “Desert and Merit” is going to be longer than the promised or predicted two installments. Frankly, at this point, I couldn’t tell you how long it will be. As Michelangelo said (or is reported to me by Roderick Long to have said) about the Sistine Chapel, “It will be done when it is done.” I follow Michelangelo in such matters.

A basic problem with Sher’s account, briefly alluded to in his chapter but not discussed in any sustained way, is the possibility that we ought to be more skeptical about conventional norms of merit than Sher entertains or considers plausible. Sher takes for granted that enough of our conventional norms of merit are fixed, determinate, and rationally justifiable to justify a large portion of our beliefs about merit-based desert. But that strikes me as far from clear. Many such norms seem highly malleable, set by one group of powerful standard-setters for essentially opportunistic reasons, only to be upset by a second or third or nth group of standard-setters when the latter come to power. And of course, standards of merit are set by power-wielding “influencers” with motives and reasons of their own. They don’t just happen to happen. 

Sher doesn’t exactly deny this possibility, and his thesis isn’t decisively refuted even if it happens to be true. His claim, recall, is disjunctive: either merit-based desert is accounted for by conventional norms, or by appeal to non-convention-based Kantian ones. To the extent that the first disjunct lacks application, the argument is thrown entirely on the resources of the second. Since that isn’t Sher’s intent, and the second disjunct has its own problems (which I’ll discuss in a later post), skepticism about convention-based merit does ultimately weaken Sher’s argument.  

Consider a laundry list of reasons for skepticism about conventional norms of merit.

1. The aims of a conventional activity can be unjustifiable, of questionable justification, or simply very controversial, putting the norms of merit connected with it into question. Take, for instance, the norms of merit associated with a porn film (an example inspired by Sher’s own example of beauty pageants [Desert, p. 7, example 7]). Clearly, some would argue that these norms identify genuine merit; some would contest that. How do we decide? It’s possible that what appear to be genuine norms aren’t, or what appear not to be genuine norms are. The problem seems generalizable beyond this particular example.
2.  The aims of a conventional activity may be justifiable, but the justifiability of the norms of merit themselves unclear. Example: everyone agrees in the abstract that “surgery” is a justifiable activity. But what exactly makes for a meritorious surgeon? One who pumps out a lot of cases? One who brings in a lot of revenue? One whose cases have the fewest complications? One who goes out of his way to take complication-conducive cases? One who uses or discovers the most innovative surgical techniques? For all that Sher says, there may be satisfying answers to these questions, or none. Once again, the problem seems generalizable.

The “unclarity” mentioned in (2) may itself arise for several different reasons.

2a. The conception of merit involved may be indeterminate. For instance: how, exactly, do we determine the “merit” of a            candidate for college admissions? What is the exact criterion involved, and how is it derived? Reflection on this case (and cases like it) leads to a series of difficult conundrums.

2b. There may be competing conceptions of merit involved. For instance: do we judge merit based on a candidate’s current ability to perform a task as it’s currently done in a given context, or we do we judge based on a candidate’s future potential to perform a modified version of the task in a re-conceived context?  Is it wrong to fit the task to the candidate, rather than judge the candidate in terms of some task with pre-conceived parameters?

2c. There may be competing desert bases involved, some connected with merit, some not (e.g., rectificatory justice). For instance: if one group has suffered systematic disadvantage in college admissions, and another’s merits are explained by advantages enjoyed by the preceding fact, can the demands of rectificatory justice take precedence to those of merit? Both, after all, are considerations of justice. So the question is a matter of the normative force of different aspects of justice: does rectificatory justice override merit, or vice versa?

With respect to (2c), it’s worth noting that in the context of say, criminal or tort law, we generally take it as obvious that considerations of rectificatory justice override those of merit. If a good driver steals the car of a bad driver (or damages it in an accident), it’s taken for granted that the good driver is both morally and legally obliged to return the car to the bad driver, or is to be held liable (through his insurance) for the damage done to the bad driver’s car. The merits of the two drivers as drivers is thought irrelevant to the disposition of such cases. What governs theft and torts are norms of rectificatory justice, not merit.

By contrast, in the context of college admissions or hiring, something like the reverse belief prevails: even in the immediate wake of slavery and Jim Crow, it was thought by many that admissions and hiring ought strictly to be governed by merit, not by rectificatory considerations. Since black students or job applicants often lacked the ability-to-perform possessed by their white counterparts, they were thought to lack merit. Lacking merit, they were thought not to deserve to be admitted or hired over more able white candidates. In these latter contexts, it was (and still is) taken for granted that merit (conceived a certain way) overrode (and overrides) rectificatory considerations, even when the relative merits of the meritorious can be explained in large part through the systematic disadvantages suffered by the non-meritorious.

Granted, the issue is also somewhat complicated by the issue of individual vs. collective liability, and by the fact that, in the US at least, affirmative action policies are not always conceptualized in rectificatory terms. But there still seems to be a tension at the heart of conventional thought on this issue: merit confers desert except where it doesn’t; no clear principle dictates when it does, and when it doesn’t.   

A nearly constant source of tension with respect to all of the preceding considerations is the conflict or trade-off between goods internal to and external to a practice. Health care is a commonly-cited example, but obviously, not the only possible one. On the one hand, health care is a practice that aims at the health of the patient by norms set by medical practice. The norms that govern here are the norms internal to “the practice of medicine.” On the other hand, even in countries that have nationalized health care systems, health care is in some sense an economic enterprise intended to remunerate its practitioners. The norms that govern in these latter cases are, in some sense, external to medicine/health care in the preceding sense (though the distinction is itself a matter of dispute).* 

Should merit in this context be driven by norms internal to a practice, external to it, or by some attempt to balance both considerations? It’s not clear. Even the phrase “in this context” is a matter of dispute. There are many different contexts involved in the practice of health care. There’s a contrast to be drawn between clinical and non-clinical contexts, and then between varieties of clinical and non-clinical context. Given this proliferation of contexts, it’s unclear whether there is any such thing as the “architectonic” context of health care qua health care from which to adjudicate conflicts between more specific institutional roles or perspectives. 

All three positions have their partisans in both theory and practice, and all three have reasonable arguments in their favor. So the applicability of Sher’s conception of desert-based-on-merit raises more questions than it answers as far as health care is concerned. If health care is paradigmatic of a large set of similar cases (and I think it is), the same could be said of Sher’s account with respect to the entire set. Many have argued (and I would agree) that this is a particular problem in market-oriented societies (whether we call them “capitalist” or not). Markets are driven, fundamentally, by preference-satisfaction. But it’s an understatement to say that desert-based-on-merit is not always among the strongest of consumer preferences in any given market. At best, merit-based desert competes with a host of other preferences; more often than not, it loses out to at least one of them.**

If so, Nozick’s argument that “liberty upsets patterns” will apply systematically to the free market, no matter how free it is (indeed, insofar as it is free): merit-based desert is a pattern that only survives in a free market if it (always or often) has a substantial consumer base with a (very) counterfactually stable set of preferences in its favor. If not, desert will be overriden by non-desert, merit by non-merit (on any conception of these things). But a merit-based preference structure is exogenous to the free market. Even if advocates of the market advocate a “thick” moral conception (and most do not), such advocates cannot guarantee, or even necessarily influence, such exogenous factors.

To some degree, consumer preference has to be taken as a given in judging or predicting the performance of the market. In any society where preferences are (for contingent cultural reasons) structured by the pure expression of preference, merit will either itself by conceived accordingly, or driven out as a normative consideration. Arguably, much of American society conceives of preference this way, as many a philosophy instructor learns to her chagrin on Day 1 of Philosophy 101 or Ethics 101. In a society like this, conceptions of merit will be thoroughly corrupted (or more neutrally, “shaped”) by Hobbesian (or at best Humean) conceptions of merit or worth. But such conceptions will fall short of what, say, Aristotelians, Thomists, or Kantians regard as genuine norms of merit or desert.

In my view, the preceding considerations explain why both Rawls and Nozick go out of their way to reject the idea that desert plays any important role in determining the distribution of goods in market-based societies. Rawls seems to suggest that moral desert is an impossible or incoherent ideal as such, Nozick argues that desert-based-on-merit is impossible to realize in a market-based society in a way that’s compatible with respect for individual rights. Rawls leaves a place for institutional desert, but fails to deal with any of the complexities discussed above. To the best of my knowledge, Nozick leaves the issue of institutional desert essentially undiscussed. In the one place where Nozick alludes to institutional desert, at least indirectly, he seems to be casting doubt on (even pouring some derision on) the idea that norms of institutional desert have widespread applicability beyond a few highly specialized contexts, like the classroom.***

I take this quasi-consensus to suggest that theoreticians of capitalism (as opposed to its polemicists) grasp the tension that arises between the demands of capitalism and those of merit-based desert. In other words, the theoreticians see that desert has at best a marginal role to play in a market-based society. The polemicists, by contrast, seem to think the reverse. Capitalism, they insist, is “an aristocracy of talent,” one unique to the market, and subverted by non-capitalist or anti-capitalist conceptions of political economy. I’ll discuss that tension in a forthcoming post.    

*As Bernard Williams puts it: “Leaving aside preventive medicine, the proper ground of distribution of medical care is ill health: this is a necessary truth” (“The Idea of Equality,” discussed in Nozick’s Anarchy, State, and Utopia, pp. 233-35). Neither Nozick nor Williams discusses the ad hoc quality of the exception that Williams makes for preventive medicine. Neither discusses diagnostic medicine, either; yet for obvious reasons, diagnostic medicine (which consumes a huge portion of health care resources) cannot be distributed on grounds of ill health. (Williams may well have been subsuming diagnostic care under preventive care, but they’re generally distinguished in contemporary health care parlance. Either way, the distinction he draws between “preventive medicine” and “medicine” strikes me as ad hoc.) 

On goods internal to practices, the locus classicus is (or at least was) Alasdair MacIntyre’s After Virtue. Much of the argument I make here bears an obvious debt to MacIntyre’s critique of liberalism.     

**For an argument of this sort, see Stephen Nathanson, Economic Justice (Prentice Hall, 1998), pp. 52-60.

***On Rawls, see “Legitimate Expectations and Moral Desert,” A Theory of Justice, pp. 273-77 (section 48). On Nozick, see Anarchy, pp. 150-83 on distributive justice generally, but pp. 153-64 on patterned distributions. What I call the “indirect” discussion of institutional desert is discussed in “Why Do Intellectuals Oppose Capitalism?” reprinted as as chapter 15 of Socratic Puzzles. The answer to Nozick’s question turns out to be that they oppose it because it doesn’t allocate goods according to any objective conception of desert.