2. Entitlement, desert, and distributive justice

Before beginning, it will be helpful to disambiguate two distinct but closely related notions: entitlement and desert. Following convention, I will say that a person’s entitlements are generated by the institutional rules that govern her actions. If we have a race-running institution that is governed by a rule requiring the distribution of a gold medal to the first person across the finish line, the person who crosses the finish line first is entitled to a gold medal. That is not yet to say that such a person deserves the gold. To see this, consider two types of desert (institutional and non-institutional) and notice that entitlement is distinct from each.Footnote ⁶

Institutional desert is generated by the goals that an institution is designed to serve. Suppose that the goal of our race institution is to recognize the fastest runners. The rule that whoever crosses the finish line first shall be awarded a prize is a reasonably good way of advancing that goal. Still, from this angle, we can see why entitlements generated by such a rule are not necessarily institutionally deserved. Suppose that the fastest runner in our race slips on some wet grass just before the finish line. As a result, she loses. By virtue of her having been the fastest runner, she institutionally deserves the prize. That distribution fits best with the underlying goal of the institution. But, since someone else crossed the finish line first, she is not entitled to it. The actual race-winner does not institutionally deserve the prize to which she is entitled. Therefore, entitlement and institutional desert come apart.

By contrast, non- or pre-institutional desert does not derive from extant institutions or their goals. A person deserves in the pre-institutional sense when some feature of her character or past actions simply makes her worthy of a certain kind of treatment. Now change our example so that the fastest runner really does win the race. She institutionally deserves the gold, and is entitled to it. This is compatible with her not being a very non-institutionally deserving person. The idea here is that, whereas institutional goals can make any behavior, characteristic, etc. a ground of (institutional) desert, there is a pre-institutional notion that constrains and shapes the institutional goals we ought to adopt (provided deservingness is something we care about). Perhaps the runner in our example is vicious or lazy, and so it is not very fitting after all that she has the prize. Other things equal, it would be better to have institutions that did not reward people like that. Noticing this allows us to see that entitlement, institutional desert, and non-institutional desert are distinct notions (cf. Feinberg Reference Feinberg1970, 57; compare Olsaretti Reference Olsaretti2004, 16–19).

Nobody denies that a just institutional scheme will distribute according to a person’s entitlements, Footnote ⁷ and it is fairly uncontroversial that institutional desert is relevant for considerations of justice.Footnote ⁸ To distribute according to entitlements is a requirement of justice because it makes our institutions credible. It would be hard to take institutions seriously that generated legitimate expectations in people without distributing in line with those expectations. To distribute according to institutional desert is to require that our institutional rules be well formed relative to their goals. More controversial is whether justice requires distribution according to non-institutional desert. And it is philosophical liberalism’s apparent lack of concern with non-institutional desert that motivates Scheffler’s worries that it is out of touch with commonsense political morality.

For a person to have a non-institutional desert claim is for it to be fitting for her to enjoy some treatment or resource even when there is no existing institution even aimed at securing it for her. Non-institutional desert claims have the general form: S deserves X in virtue of F, where F is not some institutional rule or goal, but some past performance or possessed characteristic (Feinberg Reference Feinberg1970, 57).Footnote ⁹ In the context of distributive justice, the relevant X’s – the things to be distributed – are economic benefits, offices or positions. The relevant F’s have largely been taken to include things like effort, contribution to cooperative ventures, excellence in performance, moral character, etc.Footnote ¹⁰ With these basic distinctions out of the way, I turn now to considering the question of non-institutional desert in the context of distributive justice.

There is a widespread intuition according to which a world is better, the more closely its benefits and burdens are distributed according to desert (Kagan Reference Kagan, Pojman and McLeod1999). The good should prosper and the wicked should suffer; the hardworking should flourish and the lazy should languish. There is something fitting about such states of affairs. Call this the desert requirement of ‘cosmic justice.’Footnote ¹¹ This requirement generates two questions.

• (1) Should (or does) desert play a central role in our thinking about justice as it pertains, not just to cosmic justice (which tends to have axiological implications only), but also distributive justice (which has deontic implications as well)?

• (2) Does justice demand of our institutions, specifically, that they distribute to according to desert (as far as is possible)?Footnote ¹²

As we have seen, theorists disagree about whether or not we should offer an affirmative answer to (1). Those who argue for a negative answer tend to agree with Rawls that there are good normative and epistemic reasons to ignore desert when considering distributive justice. On the other hand, those who give an affirmative answer tend to argue that doing so reverses an unfortunate trend in much contemporary thinking on the topic of distributive justice. In reserving a place for desert in a theory of distributive justice, we ensure that human beings are treated as active shapers of their own fates, rather than passive recipients of goods. I set this dispute to the side. What is important for my purposes is the agreement among theorists that if (1) is answered affirmatively, (2) should be answered affirmatively as well. Call this the standard view.

According to the standard view, if desert should play a fundamental role in distributive justice, then economic benefits and prized positions ought to be distributed according to their relevant desert bases insofar as this is possible (within the confines of justice and efficiency). If economic goods are to be distributed according to one’s contribution to the creation of economic wealth, for example, then there is pro tanto reason to favor institutional arrangements that achieve a match between a person’s contribution and her economic goods. Later, I argue that the inference from the fact that desert matters for the deontic aspects of distributive justice to the requirement that institutions guarantee that people get what they deserve is invalid. But, first, I distinguish between two competing views about the bases of desert (contribution, and conscientious striving, respectively) and observe that defenders of both accept the standard view.

David Miller is a leading proponent of the first view, and argues that desert-based meritocracy ‘implies that people should be rewarded in proportion to their productive contribution’ (Reference Miller1999, 197; see also ibid., 163). Moreover, Miller sees the market as an approximately meritocratic arrangement: ‘Provided that markets remain competitive, ’ he writes, ‘and provided that enterprise managers make a conscientious effort to assess the respective contributions of the people they employ, there is no reason [market] rewards should not correspond to desert in the form of productive achievement’ (ibid., 193).Footnote ¹³

Yet some wonder why we should be meritocrats in Miller’s sense. If the motivation is to render our distributive principles sensitive to persons as responsible, rational agents, don’t we need to know to what extent people are responsible for their contributions before we agree that the latter underwrite desert claims?

This question motivates the second view. Sometimes, perhaps even often, as a result of factors beyond her control, one person’s contribution will be lower than another’s. Due to John’s upbringing (and perhaps some unfortunate genetics), the only job he can find is as a janitor. He works hard but, despite his hard work, cannot contribute at as high a level as he would like. His contribution is accordingly meager; so too is his pay. Jane on the other hand had a good upbringing and went to Yale; she coasted by with good marks despite being a somewhat lazy student. Eventually, she secures a job managing accounts for a major corporation and makes millions over her lifetime despite never exerting herself to the degree that John exerts himself. Miller’s meritocracy seems to suggest that both John and Jane get what they deserve. Isn’t this counterintuitive? Richard Arneson says yes.

To deserve something, according to Arneson, one must be responsible for bringing it about. Arneson and Miller agree on that point, and also that, to be responsible for bringing something about requires that it lie within your control to do so. But whereas Miller thinks that certain kinds of luck (e.g. the luck involved with having a particular genetic makeup or set of natural talents) do not interfere with your having control over an outcome, Arneson argues that these types of luck do undermine the relevant kind of control.Footnote ¹⁴

Both authors agree that accounts that deny that one can deserve on the basis of natural talents are corrosive with respect to our ordinary judgments concerning what people deserve (Arneson Reference Arneson, Holtug and Lippert-Rasmussen2006, 269; Miller Reference Miller1999, 146). We might initially identify some agent’s performance as deserving of some treatment. But after reflecting on the dependence of such performance on the individual’s natural talents and the degree to which these lie outside her control, we are left wondering: Is she deserving after all? For Arneson, answer is No. An individual deserves, on his account, as long as she conscientiously strives to do what is right by her own lights, whatever her contribution. But for Miller, the strength of our initial judgments implies that luck in the distribution of natural talents is irrelevant for control and desert – one’s contribution really is what matters after all.

Despite their differences, what Miller’s account and Arneson’s account have in common is the standard view: institutions should be designed to approximate what people deserve, whatever that consists in. Thus, Miller proposes to regulate markets in order to approximate deservingness when market outcomes are expected to fail to track desert, and Arneson claims that something similar would be required to take desert seriously in matters of justice. Miller’s coarse-grained notion of what it is to deserve implies only that satisfying a desert-based distributive principle will be less costly than satisfying such a principle will be on Arneson’s fine-grained account.Footnote ¹⁵ Theorists who accept desert as an important component of justice say that we should absorb the costs. To do so is to (rightly) trade utility against justice (e.g. Moriarty Reference Moriarty2005, 214–215).

However, as I shall argue, there are reasons – reasons pertaining to the structure of desert itself – to think that taking desert seriously in a theory of distributive justice does not make such institutional demands. Instead, I will argue that what it means for a theory of justice to take desert seriously is twofold: (1) institutions must be designed so as to allow individuals to treat one another as they deserve to be treated; and (2) part of the ethos promoted by accepting a theory of justice should encourage in citizens’ personal sense of justice a substantial concern for what people deserve. Many of our intuitions about deservingness are intuitions not about how society as a whole should be ordered, but instead about how it should not be ordered, and what kinds of things people in charge of distributing various goods ought to be sensitive to in their distributive roles. Intuitions that desert matters do not commit us to judging that it would be desirable if society were arranged so that individuals always got what they deserved, on whatever understanding of what it takes to deserve economic benefits and burdens.

3. Against patterns: the interpersonal nature of desert

Proponents of desert are moved by the following kind of case:Footnote ¹⁶

Best Candidate: A restaurant is hiring a new delivery person. The manager, Bob, interviews two applicants. Candidate A is late for the interview, and has no relevant experience. A’s previous employers claim that she is lazy, and she comes across in the interview as being generally rude. Candidate B arrives on time, and has held many relevant jobs. B’s former employers praise her work ethic and kind demeanor and B is polite and respectful. Despite judging that B is better qualified, Bob finds candidate A physically more attractive, and awards the job to A.

Bob acted unjustly, we judge, and neither just because his hiring A will harm his customers by subjecting them to miserable service, nor because hiring A was inefficient.Footnote ¹⁷ Instead, he wronged B by failing to give her the opportunity she deserves. Moreover, Bob’s wrong does not consist merely in upsetting one of B’s legitimate expectations. To see this, consider a second case:

Despite the fact that B did not have any expectations of securing the job based upon her qualifications, it is plausible to think that Bob still wrongs B. Bob wronged B because he deprived B of something that, morally speaking, B deserved, something that it was fitting for B to have.

Suppose we agree that Bob acts unjustly: does that entail that the institutional setting that tolerates his behavior is thereby unjust? I suggest that the answer is No. And if the answer is no, a theory of justice can take desert seriously without being committed to implementing desert-based distributive principles at the institutional level. To see why the answer is in fact no, let me relay a story.

When I was 16, I applied for a job at a local restaurant known for its ice cream. I was to get my license later that year, and I needed to save money for a car. I worked as a cashier for several months, twice a week after school, and took my responsibilities seriously. I was proud of the paychecks I earned, and my manager appeared pleased with my work, regularly asking me to log additional hours. As summer drew near, management hired another cashier – call him Alex. He was a few years older than me. Still, he could not seem to do anything right. Six-gallon tubs of ice cream were left outside the freezer to melt; customers were given the wrong change; customer orders were consistently messed up; inventory was mis-recorded resulting in shortages; and the servers complained that they could not rely on his help during the dinner rush. On top of all this, he was lazy, and seemed uninterested in learning how he could do better.

One night Alex and I were closing together, and he started to complain about his pay. He asked what I was making. I told him: $7.00 an hour. Eventually, I learned that he was complaining because he had been denied a raise from $9.50. I didn’t resent him for that. But I did resent my manager. The next day, I went to his office and demanded to make at least what Alex was making. I’d had no problem with my wage before I learned of his.Footnote ¹⁸ It wasn’t as if I thought I was being exploited. It was that, in light of new information, I judged that I wasn’t getting what I deserved for the work I did.

What I thought I was owed was recognition (in the form of a higher wage) that I was (at least!) as valuable to the company’s success as Alex. It is crucial that I wanted recognition from the institution itself. Had a third party stepped in, e.g. to adjust our pay, this would not have been an appropriate response. Justice would have been done only if management had agreed to give me a raise in recognition of my work.Footnote ¹⁹ When I opened my next check and saw that the raise I had been given was $.07, I walked. When they called me every week for the next month asking if I would return to work (promising me more money) I refused. I did not want to work for a company that treated its employees like that. The problem wasn’t the institutional scheme that allowed that restaurant to exist. The problem was how the restaurant’s management had chosen to exercise its agency within that framework.

Suppose that the above case reflects a failure on the part of my employer to respect norms of deservingness. Suppose further that I am correct in locating the problem where I have: the injustice was committed by the restaurant, rather than the broader framework within which it operated. What does this case tell us? I suggest that it reminds us that there is something irreducibly interpersonal about desert claims, both what it is to make them, and what it is to have them fulfilled.Footnote ²⁰ Desert claims are asserted by one responsible agent against another. A person who asserts such a claim against a person or institution makes a demand for a certain kind of treatment – not against society, not against its basic coercive structure – but against that institution, that employer, or that individual. And I suggest that this feature of desert claims matters when considering the practical implications of taking desert seriously as a matter of distributive justice.

My employer did not distribute according to desert. In so failing, those involved acted unjustly. Granted. But notice: were they forced to distribute according to desert in the way many desert-friendly theorists suggest, I would have missed the opportunity to exercise agency in getting what I deserve. And I suspect that, for those interested in theories of distributive justice that pay greater heed to the active, responsible individual, this opportunity matters at least as much as the relevant patterned outcome. I cannot be sure of that, of course. But now notice some striking features of the case.

First: the restaurant was not prevented from distributing according to desert. It opted not to. Had it been prevented from treating me in accord with principles of desert, then a desert-sensitive theory of distributive justice must condemn the responsible institutions. But as long as individuals and businesses are not so prevented, it seems that a desert-sensitive theory need not say anything at all about the basic structure of the relevant society.

Second: I learned something from the way the restaurant handled the choice it was given. I learned how to take responsibility for getting what I deserved, and I was given the opportunity to express resentment where it was due. I don’t know if the expression of resentment made a difference, but the fact remains that I was glad to know for whom I was working. I do not think, then, that the fact that I was treated unjustly condemns the institutional atmosphere within which the unjust treatment occurred.

Indeed – and this is a further claim – sometimes it seems that by virtue of considerations like those raised above, an institutional scheme fits better with our intuitions about desert if it does not attempt to pattern outcomes in the way the standard view implies it should. Recall that friends of desert begin by arguing that other theories of distributive justice treat human beings as passive recipients of goods, rather than as beings responsible for shaping their own fate.Footnote ²¹ To distribute according to desert is allegedly to reverse this unfortunate trend. Respecting and allowing for the development of responsible agency is thus at least one value underlying desert-based theories. But were we committed to affording desert a role in distributive justice in the way that the standard view suggests, we would focus on the wrong features of the case relative to this value. We might consider punitive measures against the restaurant itself, or we might propose that the store manager himself ought to lose his distributive privileges. But it’s hard to see how these proposed measures comes any closer to treating individuals as responsible agents. Whatever one thinks, such proposals appear to be optional for a theory of distributive justice that recognizes significant injustice in failures to treat individuals as they deserve to be treated.

One naturally wonders what the upshot is for institutions. I said above that taking desert seriously requires that people be given a genuine opportunity to treat one another as they deserve to be treated (and perhaps the opportunity to fail to do so). This condition might seem thin, but it does restrict the range of permissible institutions considerably. The requirement that the people in charge of distributing resources not be prevented from distributing according to desert requires, e.g. that we reject any arrangement that requires individuals in distributional roles to maximize efficiency.Footnote ²² Treating people as they deserve to be treated does not promise to be efficient (though given plausible assumptions about human psychology, it often will be).Footnote ²³ Moreover, if individuals are to be allowed to be sensitive to desert in their distributional decisions, then they will not be required to deploy their resources or to make other distributive decisions solely on the basis of some narrowly construed and morally irrelevant factors like race, sex, or religion. Such arrangements require that decisions concerning the distribution of goods be made on the basis of factors other than desert, and so they are sensibly ruled out by theories that champion the importance of desert in distributive matters.

If leaving individuals free to assert and respect desert claims as they see fit is part of what taking desert seriously requires, perhaps it makes sense that many desert-theorists are drawn to market institutions (despite the well-known fact that market distributions are not guaranteed to track desert). Perhaps such theorists never meant to say exactly that, in a market setting, everyone gets what they economically deserve. Perhaps they meant instead that distributing positions and incomes via market mechanisms allows people to strive to make themselves deserving in ways that respect responsible agency and the interpersonal nature of desert. But if they let on that a theory of justice sanctions market-based societies as such, such theorists are mistaken. Nothing about a market-based society rules out that it might be comprised of individuals who are wholly unconcerned with desert. (Imagine a society of utility-maximizers where individuals’ utility functions include no preference to see deservingness rewarded.) A theory that requires institutions that allow individuals the chance to treat one another as they deserve therefore satisfies a mere necessary condition for taking desert seriously as a component of justice. This brings us to our second requirement. A theory of justice that affords desert and responsibility a place will require cultivating what I have called a desert ethos, and condemn as less-than-fully just any society that does not instantiate such an ethos.

A society is characterized by a desert ethos when people in their interpersonal lives, and especially in their capacity as distributors of scarce resources, are sensitive to, inter alia, what candidates, friends, family members, strangers deserve. To be sensitive to what others deserve is part of what it means to treat them as responsible agents, as persons. As persons, we have obligations of justice to be sensitive to considerations of desert when interacting with one another, even if such sensitivity is not coerced or otherwise institutionally mandated. A theory of justice takes desert seriously by refusing to recognize as fully just any society where citizens routinely flout such obligations.

Sometimes it will be the case that those who are guided by such an ethos judge that a person who does not contribute much deserves a second or a third or a fourth chance. On what basis? Perhaps such a person deserves further chances because she conscientiously strives to do the best that she can. Her contribution is not relevant, at least not always. Other times, we may have doubts that a person deserves a second chance, or we might judge (taking into account all of the evidence available to us) that she positively does not deserve a second chance. Trusting these judgments and acting accordingly is part of respecting people as responsible agents. This does not rely on our being infallible judges. Sometimes we will get things wrong. When we do, it will matter. Such mistakes form an ineradicable and deeply regrettable part of our lives as moral agents.

I have been arguing that it is no necessary part of a desert-sensitive theory of justice to require that its basic institutions distribute (as far as possible) according to desert. I have also suggested that there may be reasons stemming from the notion of desert itself to resist such institutions. For all that has been said, this account of what it is for a theory of justice to take desert seriously is underspecified. Certainly not everyone will be sympathetic. In the hope of attaining greater specificity (and gaining additional sympathizers), I turn in the next section to considering some objections.

4. Objections

The basic claim defended in Section 3, recall, was that we can maintain a place for desert in our theories of justice without recommending top–down, patterned distribution according to desert. To motivate this possibility, I suggested a further claim, namely that some of the very reasons why desert seems to morally matter also indicate that the standard view is misguided in recommending such patterned distribution.Footnote ²⁴ But one might worry that I have thereby proven too much. Consider that most take anti-discrimination laws to be required by justice, and further that, on a plausible interpretation of those laws, they are geared at ensuring that individuals get what they deserve. To be sure, the account sketched above condemns any society characterized by widespread discrimination. Such societies lack, among other things, a desert ethos, and so at best satisfy a necessary condition of the account sketched above. But this seems to offer little comfort: We want to say that coercive institutions really are permissible or required here.Footnote ²⁵ A number of responses to this serious concern seem plausible.

First: although there is a plausible desert-based interpretation of anti-discrimination law, that interpretation is not obviously the best interpretation. Indeed, it strikes me as more plausible to say that such laws are aimed at ensuring a kind of equal treatment for individuals regardless of sex, gender, race, religion, etc.Footnote ²⁶ Whether individuals get what they ultimately deserve is beside the point. If so, then anti-discrimination laws would mark out a class of claims about what people ought to have that are not genuine desert claims (on this point, see Note 9). Thus, we might simply observe that desert and the values underlying it are not the only values. The values appealed to in the account sketched here do imply that, to the degree that anti-discrimination law compromises individuals’ abilities to exercise and develop responsible agency, there is a pro tanto reason against it. But nothing here implies that such law must be all-things-considered unjustified.

Additionally, we might observe that a society with strong anti-discrimination laws can still reserve plenty of room for individuals to develop responsible agency. After all, the case involving my employer above takes place in an institutional context in which anti-discrimination law operates in the background, and the lesson of the example was precisely that the institutional scheme was not the problem.

Further, it is (I think) important that anti-discrimination laws are plausibly understood as requirements that derive their urgency from unjust but historically contingent circumstances. Consider for example that there is (in the United States) no federal law prohibiting discrimination on the basis of eye color (except insofar as that characteristic is correlated with membership in a protected class).Footnote ²⁷ Yet this omission appears unproblematic. This is in part because no particular eye color has been associated with historical acts of oppression, and there is no reason to believe that benefits and burdens break down primarily along the lines of this characteristic. If denied service (or some opportunity) on the basis of eye color in ordinary circumstances, one would recognize a bizarre kind of injustice in the act of denial. But one would also likely think that the problem could be addressed via informal means (boycott, blame, etc.). These considerations suggest to me two things.

First, a truly just society might not have anti-discrimination laws, because individuals living in such a society would be opposed to discrimination, and would voluntarily undertake means of combating any implicit biases they exhibit. Second, the legal requirements that appeal to us in our circumstances may derive more from those circumstances, than from considerations of justice in isolation.

For the above reasons, I think that the first objection fails, and that a theory of justice sensitive to desert in the way I have described can recommend anti-discrimination laws when the circumstances require them. An additional attractive feature of the account (brought out by the objection) is that it suggests good grounds for opposing such laws when they appear unnecessary. In so doing, my account sheds light on still very active debates concerning the value and limits of the freedom of association.

Still, anti-discrimination laws aside, doesn’t the picture offered doubly privilege those with greater natural talents, negotiating skills, etc., by not only taking desert into account, but also holding individuals accountable for getting what they deserve? No. Because it is the responsibility of everyone to be concerned about what each deserves, it is the responsibility of everyone not to take advantage of persons who undervalue their own talents.Footnote ²⁸ Moreover, were people suffering as a result of not being able to get what they deserved in recompense for their labor, for example, there may be significant obligations on the part of others (and the state) to step in and ensure that they were nevertheless capable of leading decent lives. The grounds of these obligations would not be desert, but perhaps welfare, and discharging them is compatible with the account proffered here.

Turn now to the second objection. I argued above that the interpersonal nature of desert suggests that ensuring that people get what they deserve through third-party mechanisms is inappropriate. One might resist this by claiming that the interpersonal character of desert is consistent with coercive attempts to guarantee distribution according to desert. The objector might note that institutions have an expressive character, and draw an analogy with retributive justice to support her case: Surely when person A trespasses against person B’s property, A fails to show respect for B. It would be appropriate for B to resent A. Still, A deserves punishment, and the objector astutely observes that we would deny that it should be B who carries out the punishment. Instead, justice is done when a third-party (i.e. the state) punishes A, and part of the state’s obligation to do so is grounded in its appropriately expressing A’s interests.Footnote ²⁹ So why not say something similar in the case of rewarding desert in distributive justice?

Ultimately, I think that the analogy between retributive and distributive justice fails. In matters of retributive justice, there are both pragmatic reasons and reasons of procedural justice for which B cannot personally punish A. On the pragmatic side, we might worry that leaving punishment to individuals is likely to issue in on-going, costly disputes, and that leaving it to a neutral third party avoids this inconvenience.Footnote ³⁰ On the procedural side, we might be concerned that people are owed a fair trial before they endure punishment for a crime, and that individuals left on their own are likely to strike first and ask questions later. But I think neither of these conditions (nor any close analog) obtains in the case of distributive justice. Instead, when a private party fails to give us what we deserve in an economic setting, the best response is not to get someone else to force her to comply, but to express resentment and take our goods and services elsewhere in the hopes that the responsible party makes amends. Similarly, when we learn that business owners do not treat their employees as they deserve to be treated, the appropriate response is to withhold our patronage from such businesses, to express blame, and to attempt to get others to do the same. When we do so, this is often (rightly) the end of the story. The issue of a fair procedure also seems far less weighty here. After all, we tend not to think that individuals need to defer to a neutral third party when evaluating whether it is the case that their contribution has been adequately recognized.

A third objection presses a sociological point: suppose it is true that a just society requires a desert ethos. Still, proponents of such an ethos ought to recognize and embrace the ethos-shaping character of coercive institutions, for a basic structure that evinces a concern with desert is likely to instill in its citizens a like concern. Though this objection rests on an empirical claim about the relationship between institutions and the dispositions of those that live under institutions, the empirical claim appears plausible.Footnote ³¹ Still, we should distinguish between two claims of differing strengths. According to the first, it is impossible to cultivate a desert ethos without the influence of desert-oriented institutions. According to the second, it is simply more difficult to realize an ethos in the absence of desert-sensitive institutions.

It seems to me that the first claim is simply false. There are all kinds of justice-related concerns that precede the existence of institutions to back them. The objection then must rest on the second claim. Yet the second claim does not pose significant problems for my account. First, much turns on how much more difficult it is to cultivate a desert ethos without the backing of the appropriate institutions. Depending upon how important it is to develop citizens’ senses of responsible agency, it might turn out that it is better to forego the help of coercive institutions than to enlist it. Second, even if coercive institutions turn out to be desirable in the short term, the theory developed here has clear transitional implications: Such institutions ought not to survive past their optimal level of effectiveness in terms of the relevant values. Even if it turns out for the purposes of maintaining the desert ethos that part of the basic structure must remain sensitive to desert in perpetuity, my account develops resources for understanding the moral costs that are incurred by relying on such institutions. Such costs might be worth bearing, but they are costs nonetheless.Footnote ³²

This leaves us with our final objection, namely that this picture of what it is to take desert seriously has relied on intuitions drawn from examples that presuppose generally market-based institutions for distribution. Accordingly, the conclusions drawn are of no importance if the market is unjustified. The objector is right that I have largely assumed a market framework where it is largely individuals in charge of distributing benefits and burdens, rather than the state. But I think there are two things to say. First, I think the intuitions elicited here track something pre-institutional concerning how our interactions ought to be structured, rather than something that itself relies on an independent justification of the market. Therefore, if the ideal described here is attractive in its own right, then it can be part of a fuller moral defense of the market (pace Olsaretti Reference Olsaretti2004). Second, the account outlined above does not really presuppose full ownership rights over productive property (although it may suggest a picture of the person that confers upon such rights a certain measure of attractiveness). The account is instead consistent with any system of property that affords individuals significant rights in hiring and determining the salaries of other individuals.

5. Final remarks

For some, philosophical liberalism’s recent failure to represent human beings as responsible agents is deeply unfortunate. In response, philosophers have attempted to incorporate desert-based principles into their theories of distributive justice. Such principles require institutional measures assuring that distribution will track desert (so far as is possible). I have argued that a liberal theory can leave room for desert without such institutional requirements. My further claim has been that rejecting those requirements may sit better with our intuitive sense of what it is to show respect for morally responsible, active agents. In closing, I want to acknowledge several questions concerning which further work is desirable.

First, I have presupposed here that justice upholds a plurality of values (e.g. equality, liberty, efficiency, etc.). A fully worked out account in this spirit must specify and set the tradeoff rate between these values (desert against equality, against liberty, against responsible agency, etc.). Until further normative work is undertaken in this regard, it is difficult to know precisely what institutional changes are desirable based on the framework sketched here. Second, there is important work to be done in articulating the steps necessary to foster an ethos in a society characterized by widespread disagreement. Such work will need to rely on current empirical research concerning the relationship between institutions and norms, and may need to extend this research in various directions. Moreover, but in the same vein, there is work to be done in specifying the ethics of informal sanctions, upon which any account that stresses the importance of ethos justice must rely. Finally, there is very important work to be done in adjudicating the debate between Rawls and others on the question of the place of desert in distributive justice. For this paper has left open the possibility that Rawls and his followers have been right all along.

Though, therefore, more needs to be said on these and other questions, it is my hope that the arguments offered here press us in the direction of taking them up. There is a trend in much thinking about distributive justice that infers from the importance of some value in distributive contexts to a claim about constraints on the configuration of society’s basic structure. The literature on desert exemplifies this trend, but it is not the only such literature. To the extent that the trend rests on a mistake, I hope that this paper inspires further research into alternative means of setting things straight. As for the arguments offered here, I eagerly await their criticism.