The division of moral labour and the basic structure restriction

Politics, Philosophy and Economics

Volumn 8, Issue 2, 2009, Pages 173-199

  Porter, Thomas ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

Cohen; Distributive justice; Egalitarian ethos; Equality; Rawls

Indexed keywords

EID: 64149129083     PISSN: 1470594X     EISSN: 17413060     Source Type: Journal    
DOI: 10.1177/1470594X09102236     Document Type: Article

References (89)

1. Samuel Scheffler, 'Egalitarian Liberalism as Moral Pluralism', Proceedings of the Aristotelian Society Supplementary Volume 79 (2005): 233.
2. The precise phrase 'division of moral labour' is due to Scheffler. See ibid. Nagel calls the same idea the 'moral division of labour'. I follow Scheffler's wording in this article.
3. For Rawls, an institution is a 'public system of rules which defines offices and positions with their rights and duties, powers and immunities, and the like. These rules specify certain forms of action as permissible, others as forbidden; and they provide for certain penalties and defenses, and so on, when violations occur.' See John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 55 (John Rawls, A Theory of Justice, revised edn. (Cambridge, MA: Harvard University Press, 1999), pp. 48-9). Hereafter, citations from the revised edition of A Theory of Justice appear within parentheses and following those from the original edition.
4. Scheffler explicitly invokes it in Samuel Scheffler, 'Is the Basic Structure Basic?', in The Egalitarian Conscience, edited by Christine Sypnowich (Oxford: Oxford University Press, 2006), pp. 102-29.
5. To quote Scheffler: 'Notwithstanding their internalization of [one class of 'local'] limiting norms... many people also affirm other values and principles - ideas of justice and equality, perhaps, or conceptions of the value of human life - about which they feel strongly, and whose compatibility or incompatibility with the limiting norms is a matter of at least sporadic concern to them. There are a number of possible responses to the perceived tension between these two sets of values ... One way of interpreting egalitarian liberalism is as attempting to provide a response that does justice to both sets of values... the egalitarian liberal proposes what amounts to a division of moral labor ... Both sets of values will be accommodated without either being reduced to or derived from the other.' See Scheffler, 'Egalitarian Liberalism as Moral Pluralism', pp. 234-6.
6. I mean this formulation to be neutral between consequentialist and non-consequentialist understandings of the demands made of us by our values. I shall also talk of 'realizing' values. But if at this point or any other my phrasing seems to bias things objectionably in favour of one or the other, the reader should feel free to substitute unobjectionable phrasing instead. I believe that my argument holds regardless of which is correct.
7. Scheffler, 'Egalitarian Liberalism as Moral Pluralism', p. 236. The division of moral labour is distinct from what Scheffler calls 'the institutional division of labour'. We effect an institutional division of labour when we formulate, on the one hand, principles for one set of institutions and, on the other hand, different principles for a different set of institutions (see ibid., p. 240). The principles on either side of the division may serve the same or different values. Since Rawls thinks that his principles of justice are principles for the institutions of the basic structure restriction and not for other institutions or individuals, he effects an institutional division of labour. My question here, however, concerns whether the basic structure restriction, conceived as restricting the pursuit of distributive justice to the basic structure, can be justified by appeal to the division of moral labour.
8. Ibid., p. 251.
9. See ibid., pp. 248-9: 'Egalitarian liberalism insists on the autonomy of the values and norms governing human interpersonal relations, and it refuses to treat them, in the consequentialist manner, as having only derivative significance ... They do not need to be justified by reference to some putati vely more fundamental level of value ... Yet, at the same time, it denies that our normative repertoire is exhausted by the values that govern our personal lives and small-scale interpersonal relations.'
10. Thomas Nagel, Equality and Partiality (New York: Columbia University Press, 1991), p. 54.
11. So, for example, in reply to Liam Murphy, who argues that the demands of justice under a division of moral labour between it and other values are likely to be no less great, Scheffler insists that Rawls (whom Scheffler takes to be a proponent of the division of moral labour) is not concerned with reducing the demands of justice. See Liam Murphy, 'Institutions and the Demands of Justice', Philosophy and Public Affairs 27 (1999): 289;
12. Scheffler, 'Egalitarian Liberalism as Moral Pluralism', pp. 244-5.
13. This, at least, is what is required if the division of moral labour is to justify Rawls's basic structure restriction, which is the question I want to focus on in this article.
14. I am grateful to two anonymous referees for Politics, Philosophy and Economics for making me see the need to make this explicit.
15. Rawls, A Theory of Justice, p. 6 (revised edn., p. 6).
16. Compare John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 258
17. and John Rawls, Justice as Fairness: A Restatement, edited by Erin Kelly (Cambridge, MA: Harvard University Press, 2001), pp. 8-10.
18. Rawls, Justice as Fairness, p. 10.
19. Rawls, A Theory of Justice, pp. 54-5 (revised edn., p. 47).
20. Rawls, Political Liberalism, pp. 257-8.
21. See Rawls, A Theory of Justice, p. 7 (revised edn., p. 7),
22. where Rawls writes that the justice of the basic structure is only 'a special case of the problem of justice'. Compare Rawls, Justice as Fairness, p. 11.
23. Obviously, this greatly oversimplifies the demands of the difference principle, even allowing for changes that might be necessary for its application in this context. But I take it that the point is clear.
24. Cohen has advanced and refined the critique over a series of lectures, books, and articles. See G.A. Cohen, 'Incentives, Inequality, and Community', The Tanner Lectures on Human Values 13 (Salt Lake City: University of Utah Press, 1992);
25. G.A. Cohen, 'The Pareto Argument for Inequality', Social Philosophy and Policy 12 (1995): 160-85;
26. G.A. Cohen, 'Where the Action Is: On the Site of Distributive Justice', Philosophy and Public Affairs 26 (1997): 3-30;
27. G.A. Cohen, If You're an Egalitarian, How Come You're So Rich? (Cambridge, MA: Harvard University Press, 2000);
28. G.A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008).
29. Rawls, A Theory of Justice, p. 83 (revised edn., p. 72).
30. Ibid., p. 78 (revised edn., p. 68). This is only one of a number of possible interpretations of the difference principle's requirements. (It may be conditional upon what Rawls calls 'close-knitness'.
31. See ibid., pp. 80-2 (revised edn., pp. 70-2). I discuss other interpretations below.) Compare Cohen, 'Incentives, Inequality, and Community', p. 266 n. 6 and Philippe van Parijs, 'Difference Principles', in The Cambridge Companion to Rawls, edited by Samuel Freeman (Cambridge: Cambridge University Press, 2003), pp. 200-40.
32. See, for example, Rawls, A Theory of Justice, p. 78 (revised edn., p. 68).
33. See ibid., p. 454 (revised edn., p. 398) for the requirement on a just society that its members have and act from a sense of justice.
34. See ibid., p. 516 (revised edn., p. 452) for Rawls's expectation that an understanding of the reasoning for the principles of justice will be involved in having and acting from a sense of justice.
35. Scheffler, 'Is the Basic Structure Basic?', p. 116.
36. The quotation attributed to Cohen is from Cohen, 'Where the Action Is', p. 10.
37. See Rawls, A Theory of Justice, p. 83 (revised edn., p. 72).
38. Cohen stresses the point at, for example, Cohen, Rescuing Justice and Equality, pp. 157-61. Compare Van Parijs, 'Difference Principles', pp. 205-10.
39. Cohen also thinks that the difference principle itself fails to serve the values of distributive justice to which Rawls is really committed (see Cohen, Rescuing Justice and Equality, Ch. 4), but I ignore that point here.
40. Michael Titelbaum argues that the priority of Rawls's liberty principle over the difference principle will engender an ethos which does not maximize the position of the worst off, since even those with a strong ethos will see its egalitarianism as subordinate to their freedom to choose work of any productivity. See Michael Titelbaum, 'What Would a Rawlsian Ethos of Justice Look Like?', Philosophy and Public Affairs 36 (2008): 289-322. But as others have pointed out, the egalitarian duties that the egalitarianism of the ethos imposes do not violate any basic liberty, so the subordinate status of the difference principle is consistent with the existence of such duties.
41. See, for example, Andrew Williams, 'Incentives, Inequality, and Publicity', Philosophy and Public Affairs 27 (1998): 228.
42. See Rawls, A Theory of Justice, p. 83 (revised edn., p. 72).
43. Rawls stipulates that the parties are not moved by envy.
44. See ibid., pp. 143-4 (revised edn., pp. 124-5). Envy is defined ibid., p. 532 (revised edn., p. 466).
45. Rawls, Justice as Fairness, pp. 63-4.
46. Rawls, A Theory of Justice, pp. 78-9 (revised edn., p. 68).
47. See Rawls, Justice as Fairness, pp. 61-3.
48. It might be argued that the need for adequate development of individuals' moral powers that I discuss below creates a requirement not for equality of expectations, but for a guaranteed social minimum (compare Rawls, Political Liberalism, pp. 228-9, although see also note 39 below). In that case, Scheffler's point would not require that distributive justice be realized by an equal distribution regardless of absolute levels of wealth. But if I am right (see note 37 below and accompanying text) that in some cases the social minimum could not be guaranteed in the absence of an ethos (not necessarily an egalitarian ethos, to be sure, but an. ethos nonetheless), then this modification of Scheffler's position will not save this form of the institutional capacity defence. I am grateful to an anonymous referee for pointing out the need for clarification on this point.
49. Rawls, Justice as Fairness, p. 84.
50. Ibid., p. 85.
51. Ibid., p. 88.
52. I take it that these cases are not excluded by the fact that we are assuming 'reasonably favorable circumstances' (see, for example, Rawls, Political Liberalism, p. 325), since such circumstances would presumably include the fact that members of society had sufficient productive talents that the conditions for the development and exercise of the two moral powers and effective pursuit of conceptions of the good could be secured (given, say, some encouragement of the productively talented to employ their talents).
53. Rawls does say that 'it is assumed the members of society are rational persons able to adjust their conceptions of the good to their situation' (Rawls, A Theory of Justice, p. 94 (revised edn., p. 81)), which might be thought to undermine my argument here. But this is a reply to a welfarist objection to the primary goods metric rather than to the objection that too few primary goods might make the effective pursuit of one's conception of the good impossible. Rawls goes on, in the same passage, to claim that 'Everyone is assured an equal liberty to pursue whatever plan of life he pleases as long as it does not violate what justice demands.' When, in his later work, he turns to the question whether this liberty is not merely formal, his answer makes it clear that the maximizing aspect of the difference principle (the fact that as a result the least well, off have sufficient primary goods even if they have less than others) is an important part of the reason why it is not.
54. See Rawls, Political Liberalism, p. 326.
55. Compare Rawls's objections to the social minimum as compared to the difference principle's 'minimum that. .. maximizes the life-prospects of the least advantaged over time' at Rawls, Justice as Fairness, p. 129. Rawls claims that the fact that the social minimum covers 'only the needs essential for a decent life' counts against it. The difference principle is presumed (all other things being equal) to guarantee more than this.
56. Scheffler, 'Is the Basic Structure Basic?', p. 117 n. 6. Scheffler also points out there that in Rawls's view 'citizens in real life may well lack the maximising motivation that he ascribes to the parties'. This is true, but irrelevant. The question is whether the principle which serves the values of distributive justice requires the maximization, or at least the increase in cases such as the one I described, of the position of the worst off. Rawls's argument from the original position appears to justify a principle which does require such increases. Citizens' acquisitiveness regarding primary goods for themselves does not bear on what justice requires of them except in so far as it shapes the thin theory of the good which determines the parties' motivation in the original position. Since Rawls thinks that this motivation is a maximizing one despite the possibility, which he explicitly notes, of low acquisitiveness in citizens, clearly that low acquisitiveness cannot exempt them from the maximizing or wealth-increasing demands of justice.
57. This is also how Cohen responds to those critics who appeal to the Cohenian ethos's high degree of demandingness in charging his view with implausibility. For that criticism, see, for example, Thomas Pogge, 'On the Site of Distributive Justice: Reflections on Cohen and Murphy', Philosophy and Public Affairs 29 (2000): 152-3 and Jonathan Quong, 'Contractualism, Reciprocity, and Egalitarian Justice', Politics, Philosophy and Economics 6 (2007): 85-7.
58. For Cohen's response, see Cohen, Rescuing Justice and Equality, p. 402.
59. Cohen, 'Where the Action Is', p. 13.
60. Ibid., p. 13.
61. Joshua Cohen suggests that this is indeed what we should suppose. He thinks that doing so is justified by 'a set of substantive assumptions about how social arrangements work, assumptions about the pervasive influence of social institutions on political-economic outcomes and on culture and identity', that he reads Rawls as making. See Joshua Cohen, 'Taking People As They Are?', Philosophy and Public Affairs 30 (2001): 384.
62. This form of the institutional capacity defence is suggested by some of the things that Scheffler says in 'Is the Basic Structure Basic?', although he never explicitly offers it. He countenances the inclusion of non-coercive practices and institutions within the basic structure in response to Cohen's charge that there is a 'fatal' ambiguity in Rawls's specification thereof. Since the ethos is a non-coercive institution and including it within the basic structure would, on the surface of it, permit the basic structure restriction to stand in the face of Cohen's arguments, the third form of the institutional capacity defence is naturally suggested.
63. Scheffler, 'Is the Basic Structure Basic?', p. 126.
64. See Cohen, 'Where the Action Is', pp. 19-20.
65. Note that it is consistent with the demand for further support to suppose that the value of distributive justice has a place only in certain circumstances, such as the Humean 'circumstances of justice' which Rawls appeals to at Rawls, A Theory of Justice, pp. 126 ff. (revised edn., pp. 109 ff.).
66. Of course, we might, for whatever reason, take a particular interest in the specification of principles for institutions. The duties implied by any such principles would be such that they could be fulfilled only by support for the relevant institutions. But the fact that the principles in question are inherently institutional does not entail that the duties imposed upon us by the values served by those principles are fully discharged by support for the relevant institutions. This remains to be shown. So our special interest in the specification of principles for institutions cannot justify an individual incapacity defence.
67. See Rawls, Justice as Fairness, p. 53.
68. Rawls, Political Liberalism, p. 267. This is because 'any sensible scheme of rules [must] not exceed the capacity of individuals to grasp and follow them with sufficient ease [or] burden citizens with requirements of knowledge and foresight that they cannot normally meet'.
69. See ibid., p. 268. Rules for individuals which when implemented would ensure background justice would fail to meet these requirements.
70. Rawls, Justice as Fairness, p. 51.
71. Which should not be thought of as including the egalitarian ethos. Otherwise my objection against the third form of die institutional capacity defence of the putative Rawlsian division of moral labour applies here also.
72. At Rawls, Justice as Fairness, p. 51: 'The word "background" in the phrase "background procedural justice" ... is intended to indicate that certain rules must be included in the basic structure' (emphasis added). (Recall that institutions are to be understood as public systems of rules. See note 3 above.)
73. Scheffler also seems to assume that the discussion of background justice can be adduced in favour of a restriction in the applicability of principles of distributive justice to the basic structure. See Scheffler, 'Is the Basic Structure Basic?', pp. 103-7.
74. I do not mean to imply that Rawls supposed that they do. But defenders of the basic structure restriction by appeal to the division of moral labour might be tempted to.
75. Note that the content of that ethos need not be 'too complex, or require too much information to be correctly applied'; indeed, its content may be very simple, if extremely demanding. See Pogge, 'On the Site of Distributive Justice', p. 152 for a short, clear specification of the duty that those with the ethos take themselves to have.
76. One conclusion that is licensed is that we need an institutional division of labour (see note 7 above): at least some of the work required to realize the value of distributive justice must be assigned to institutions and not to individuals. Scheffler reads Rawls as drawing this conclusion.
77. See Scheffler, 'Egalitarian Liberalism as Moral Pluralism', pp. 239 ff.
78. It might be tempting at this point to revert to institutional capacity defences of the basic structure restriction. I take it that if the arguments of the preceding section were sound, this will not work.
79. I am grateful to an anonymous referee for Politics, Philosophy and Economics for making me see the need to address this defence.
80. Rawls, A Theory of Justice, p. 537 (revised edn., p. 471).
81. In 'Kantian Constructivism in Moral Theory', Rawls writes: 'in a constructivist view first principles are to satisfy the requirements of publicity. The moral conception is to have a wide social role as part of a public culture ... if it is to play this wide role, a conception's first principles cannot be so complex that they cannot be generally understood and followed in the more important cases'. See John Rawls, 'Kantian Constructivism in Moral Theory', in Collected Papers (Cambridge, MA: Harvard University Press, 1999), p. 347. This is one example of the general approach which underpins the line of argument I am considering.
82. See Rawls, A. Theory of Justice, pp. 133-5 (revised edn., pp. 115-7). Rawls emphasizes the publicity condition especially in Political Liberalism.
83. See, in particular, Rawls, Political Liberalism, pp. 66-71.
84. See Rawls, Political Liberalism, pp. 15-22.
85. For the distinction between the institutional division of labour and the division of moral labour, see note 7 above.
86. See note 57 above.
87. For which see, for example, Rawls, A Theory of Justice, pp. 102-6 (revised edn., pp. 87-91);
88. Rawls, Political Liberalism, pp. 16-17;
89. and Rawls, Justice as Fairness, pp. 64, 76-7.