T. M. (“Tim”) Scanlon is best known for his advocacy, especially in his book What We Owe to Each Other (1998), of the moral theory of contractualism. Contractualism is broadly the idea that morality is based on a social agreement or “contract.” It can in principle refer to any contract-based moral theory, within a certain range to be described in a moment, but in practice it refers to Scanlon’s theory unless the context makes clear that something else is meant. The Stanford Encyclopedia of Philosophy (SEP) article on “Contractualism” by Elizabeth Ashford and Tim Mulgan says that contractualism is distinguished from contractarianism by being grounded in the equal moral status of persons. Contractarianism, especially of the sort identified with Hobbes and Gauthier and Buchanan, tries to derive morality from an agreement that individuals make based on their own self-interest. A contractarian theory imagines people forming an agreement which each sees as maximizing his own personal self-interest and nothing else, and in particular without regard to the interests of anyone else. By contrast, contractualism imagines that people are deciding mutually agreed-upon principles from a position in which each person accepts every other person as a rational autonomous agent of equal moral importance with himself. Scanlon claims (5) that this conception of the social contract can be traced back to Rousseau.
The key concept of contractualism seems to be justifiability to others. In what follows, I shall explain what “justifiability to others” means in Scanlon’s contractualism and why I think it lies at the root of a serious deficiency of the theory.
In a concluding section near the end of his chapter on desert and merit, George Sher makes a final, and to my mind puzzling claim, or set of them. Here’s the relevant passage, at length:
When someone satisfies criteria of performance established by fixed sets of conventions, he ought to receive whatever prizes, recognition, or grades those conventions dictate; and when an applicant is best-qualified for a job or educational opportunity, he ought to receive that opportunity. Yet these desert-bases, however important, do not exhaust the forms of merit that are said to create desert. We also say that persons with interesting ideas deserve to be heard, that superior political candidates deserve to be elected, that authors of outstanding books deserve recognition, and that scientists who discover vaccines or generals who lead victorious armies deserve honors and awards. We cannot plausibly ground these desert-claims in either the principles of veracity or fidelity or the requirement that pesons be treated as rational agents.…Thus, barring further developments, our working assumption–that all major desert-claims have real normative force–must here be abandoned; here, we must settle for a non-justificatory account (Sher, Desert, p. 129).
The non-justificatory account turns out to be a Humean error theory: Continue reading
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.
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.
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.
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.
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.
The expected consequence conception of desert says that, pro tanto, we deserve the expected consequences of our actions. A recent line of argument inspired by the Taliban seizure of Afghanistan both employs this conception, and unwittingly illustrates the problems with it.
Chapter 3 of George Sher’s Desert offers what might be described as a dialectical exploration of the strengths and weaknesses of an expected-consequence account of desert (“dialectical” is my term, “exploration” is Sher’s). An expected consequence account of desert says that, properly understood and specified, we deserve the expected consequences of our actions.
Before I describe the account proper, however, I think it’s worth saying a word or two about the overall aim and structure of the chapter. Sher’s claims in this chapter are easily misread and misunderstood, and I think that the other members of our Zoom discussion did in fact misread the chapter, giving it a stronger (hence less charitable) reading than it deserved. As far as I can see, though Sher gets some of the details wrong, his overall assessment of the expected consequence conception of desert is just right. So I’m a little puzzled at my fellow discussion partners’ criticisms of the chapter as a whole, and challenge them to “bring it,” as the youngsters nowadays say.
It’s been raining a lot where I live, and that’s given me both the impetus and the material for reflecting on one of the examples Sher gives in chapter 3 of Desert—a case of desert meant to illustrate what he calls “the expected consequence” model. I’ll have more to say about chapter 3, and the model itself, in a later post I’m planning to write. But for now, I just want to hash through one of the deepest and most profound of Sher’s examples, what might be called the rainfall example*:
The expected consequence account is the sort of account we want. But does it mesh with our intuitions about specific cases? In many instances it does. It coincides, for example, with the intuition that Wilson, who knowingly submitted his application late, now deserves to be disqualified. If this desert-claim is to have normative force, it is surely because one ought to suffer the predictable consequences of one’s earlier carelessness. And the most straightforward way of explaining this is precisely to say that such predictable consequences inherit the value of the free choices that led to them. For similar reasons, the account correctly accommodates claims of this type: Harris, who didn’t bring his raincoat, now deserves to get wet….
Just as the man who leaves his umbrella home when it rain deserves to get wet, so too does the man who brings his umbrella deserve to reach his destination dry (pp. 41-42).