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. 

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impartial moral anger and deserving not to be wronged

Each of us deserves not to be wronged. Plausibly, the basis for this (the “desert-basis” in the lingo) is something like each of us being a human person (maybe the relevant feature is a bit different from this, but let’s suppose it is this). But what is the deserving here — what does it come to?

One candidate is this: each of us ought (or is normatively required) to refrain from wronging others. But this idea seems to conflate two different things: (1) deserving not to be wronged (this being the case: it ought not to be the case that one is wronged) and (2) it being the case that each person ought not to wrong one. Another way of putting this problem: there is a mismatch between the two sorts of normative features, making the second the wrong sort of thing for analyzing or explaining the first. (Yet another decent, if less precise, way of making this point: M deserving X more comes to M getting X being valuable in a particular important sort of way than it comes to it being the case that each of us ought to provide M with X.) 

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Desert and Diligent Paranoia

Suppose that a person is diligently paranoid. In other words, imagine a person who, by conventional standards, worries excessively about risks that involve low probabilities but high stakes. Imagine this person’s applying the precautionary principle in ways most people find problematically risk-averse. And imagine her actively planning for exigencies or emergencies in ways that consume emotional and material resources, thereby undercutting her capacity for ordinary enjoyment. Where most people would simply overlook these remote but apparently scary risks, the diligent paranoid expects them, planning and drilling for them, rehearsing what she would do when (not if) they come to pass. Indeed, diligent paranoids seem to feel a certain gratification when disaster occurs, since it confirms their irrational belief that life is a series of disasters. They appear to lead a problematically joyless existence, focused on mere survival rather than on a richer conception of human flourishing–the classic case of the person who lives her life by fear rather than some more wholesome motivation.

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Desert and Self-Defense

George Sher’s version of the expected-consequence account of desert says that properly understood and specified, we deserve the expected consequences of our actions. His version of retributivism says that wrongdoing involves the taking of more than one’s share of liberty, such that the wrongdoer deserves punishment by way of redressing the imbalance caused by that act. One thing that falls between the cracks of both accounts is an aggressor’s deserving the harmful consequences of a justified act of self-defense against his aggression.

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Retributivism, Its Discontents, and Some Malcontents

Chapter 5 of Sher’s Desert, “Deserved Punishment,” is a desert-based defense of retributive punishment intended to defend the claim that “persons who have acted wrongly…deserve to be punished.”

All of the participants in our Zoom discussion agreed that this was the weakest of the five chapters we’ve read so far, and all of us (I think) agreed that Sher’s argument failed to establish its intended conclusion.  But as half of the group consisted of retributivists, and the other half of anti-retributivists, we ended up disagreeing about the exact nature of the failure, and then ended up disagreeing with one another about punishment itself. The retributivist-friendly participants were apt to say that Sher failed to establish a claim that happens to be true, or at least plausible; the anti-retributivists were apt to say that it was no surprise that he failed to establish a claim that happens to be unmotivated and false. We then ended up disagreeing about how to define retributivism, and about the plausibility of the motivation behind retributivism, however understood. The two camps divided in predictable ways.

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how there might be no “problem of punishment”

Should we think that punishment, because it involves intentionally inflicting harm without consent, is defeasibly impermissible (much like it is defeasibly impermissible, at least in private life, to initiate coercion against other people)? I suspect not, for a very simple reason: not intentionally inflicting harm on others (without their consent) might well not be the relevant sort of basic, defeasible duty that would play this role. Here, then, is another, better candidate: people having a basic moral right not to be gratuitously harmed by others. Why is this candidate better? That is a complicated question, but I’ll say two things. First, for me — and maybe for you — it is more intuitive (brutely, but also because it covers more ground, more cases). Second, it better comports with the following principle (based loosely on what Thomas Scanlon says in the first two or three chapters of his MORAL DIMENSIONS): the essential basis for the moral-permissibility-status of actions does not include the intentions or motivations of the agent (though in special cases such features are included).

If my suggestion here is right, then the Boonin-style sweeping argument against punishment does not work. One would have to argue something like this: the harms of punishment are — or perhaps usually are and should be presumed to be — gratuitous. That is a tall order. My conclusion is that there is no “problem of punishment” (or, if there is, it is really not much of a problem, at least not until someone demonstrates either a strong-enough thesis about punishment and gratuitous harm or that the fundamental duty here is definitely one of not intentionally harming others without their consent).

DESERT ALL AROUND: DOPEY BEHAVIOR, ASSAULTS, CLEVELAND, AND THE FIERCE LIONESS

When someone (or something) deserves something, what sort of normative fact (property, condition) is this? Is this sort of normative fact determined by other sorts of normative facts (and, if so, which ones)? Is this sort of normative fact something that determines other sorts of normative facts (and, if so, which ones)? Here is something of a live issue in political philosophy to provide motivation (beyond mere curiosity) for asking and answering these questions: if I deserve more money or prestige than you do, this might be considered the basis for it being fair or just that I get more (or for my having normative claim or right to have more). Alternatively: it might be that standards of fairness or justice (or for relevant normative claims or rights) come first, the facts about who deserves what in society being merely a result of this. (This is the issue of whether desert of the relevant sort is “pre-justicial,” not whether it is “pre-institutional.” The former feature seems more important to me.) However we answer my questions in the distributive justice case, the answers might be different in other cases: perhaps in some cases desert-facts “come first” and in others they “come last” (or maybe things are more complicated and they “come in the middle” in some or all cases).  

I want to try to make some progress on these issues (at the general level) by examining a particular sort of case of desert: the case of a person deserving not to be wronged. Though we might or might not be able to generalize from this sort of desert to other cases, my inkling is that aspects of the order or structure of the different normative features here is pretty clear with this particular sort of desert, making it a good (or at least easier) case to start with.

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Desert and Diligence

Chapter 4 of Sher’s Desert, “Desert and Diligence,” explores the thesis that diligence, or conscientious effort, is a fundamental basis of desert claims:

Whatever else we think, most of us agree that persons deserve things for sheer hard work. We believe that conscientious students deserve to get good grades, that athletes who practice regularly deserve to do well, and that businessmen who work long hours deserve to make money (Sher, Desert, p. 53).

That seems plausible enough, at least at first glance, but on reflection it raises two difficult questions:

            (1) What determines what specific hard workers in fact deserve?  and

            (2) What does it mean say that they ought to have those things?

Question (1) seems difficult to answer precisely because effort is common to such a variety of activities with such a variety of aims. Why does the effortful student deserve grades rather than money, or the industrious businessperson deserve money rather than grades?  A default answer might be that “what any hard worker deserves is just the outcome he has striven to produce” (Sher, p. 54). The (prototypical) student is striving after a grade, the (prototypical) businessperson, after money. So our provisional answer to (1) is that the deserving person deserves what she aims at in virtue of the diligent or conscientious effort she puts forth to that end.

That leads us to question (2), at least in a somewhat weak sense of “ought.” As noted in an earlier post, Sher’s inquiry into desert acknowledges that there is a gap between some claims of desert claims and the obligations assumed by any particular person. Smith can deserve something, X, without its being the case that any individual person is obligated to give Smith X. But there has to be some normative connection between what we deserve and what is desirable. Claims to desert can’t plausibly be entirely inert, normatively speaking. They have to be embody some (at least weak) claim to value.

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on desert and value

I’ve been playing around with this analysis or account of a certain central sort of desert, one form of which is covered in Sher’s Desert, chapter 4 (concerning one deserving success due to diligent effort, hard work, etc.; other sorts of desert in the same family would include deserving credit — admiration or honors perhaps — for achievement):

Desert (Earning)  M deserves (in the earning sense) X for having feature F = it is appropriate for anyone to have (the relevant sort of) positive-attitude response to M getting benefit X as reward for M having feature F, where M (or anyone similarly situated) having F is desirable in a particular sort of way (mutatis mutandis for X being harmful to A, this constituting sanction for M, and M failing to have desirable feature F).

One question that came up in our discussion last night was whether, on this sort of approach — still of course too schematic and unspecific in important ways — this kind of desert-property comes to (or is in some way closely-associated with) a kind of value property. Sher seems to have a view like this (though his precise view, even at this sort of schematic level, is hard to pin down).

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