Giving Desert its Due1

T. M. Scanlon

Joel Feinberg wrote, “In respect to modes of treatment which persons can be said

to deserve, then, we can distinguish three kinds of conditions. There are those whose

satisfaction confers eligibility (“eligibility conditions”), those whose satisfaction confers

entitlement (“qualification conditions”), and those conditions not specified in any

regulatory or procedural rules whose satisfaction confers worthiness or desert (“desert

bases”) (Feinberg 1970, 58). Feinberg goes on to say that desert bases must be “some

possessed characteristic or prior activity” of the person in question.

Similarly, Derk Pereboom, describing the idea of “basic desert” that he takes to be

presupposed by the variety of moral responsibility that has been at issue in debates about

free will, writes, “The desert at issue here is basic in the sense that the agent, to be

morally responsible, would deserve to be the recipient of the expression of such an

attitude just because she has performed the action, given sensitivity to its moral status;

not, for example, by virtue of consequentialist or contractualist considerations”

(Pereboom 2012, 189; Sher 1987, 7).

Following Feinberg and Pereboom, I will say that what is distinctive about a

desert-based justification for treating a person in a certain way is that it claims that that

treatment is made appropriate simply by certain facts about that person, or what he or she

has done. The ‘simply’ in this formulation is intended to exclude justifications by appeal

to the effects of treating the person in that way and justifications that appeal to the fact

1 I am grateful to Erin Kelly and to two anonymous readers for Philosophical Explorations for helpful comments on an earlier draft.

2

that this treatment is called for by some institution (that is itself justified on some basis

other than an appeal to desert.) So, for example, to discipline a child by depriving him of

a treat “because he deserves it” is a different thing from doing this because this will

improve his character or make him likely to behave better in future. Claiming that people

who have worked hard all their lives deserve a good pension is also different from

claiming that they are entitled to pension benefits according to the regulations of the

Social Security System, or the pension scheme of their employer.

My aims in this paper will be to examine this idea of desert-based justification

and to consider the role of such justifications in answering questions about legal

punishment, moral blame, and economic justice.

In defending some desert-based justifications, I will be departing from positions I

have taken in earlier work, in which I expressed skepticism about justifications of this

kind (Scanlon 1988, 149-216; Scanlon 1998, chapter 6). There were two reasons for this

skepticism. First, because I identified moral desert with the idea, which I regard as

morally repugnant, that it is good that people who have done wrong should suffer, I was

inclined to reject the idea of desert altogether. Second, interpreting and commenting on

Rawls’ views on distributive justice, I endorsed the idea that the only sense of desert

relevant to questions of distributive is what I called institutional desert—the sense in

which a person deserves a form of treatment if a justified institution specifies that he or

she should be treated in that way. I expressed skepticism about desert in a “pre-

institutional” sense that is independent of what particular institutions require and can

serve as a basis for assessing whether institutions are just. Each of these skeptical views

3

now seems to me to require some modification, which I will discuss in the course of this

paper.

Even though there is a difference, as Feinberg noted, between claims of desert and

claims of institutional entitlement, institutions can have a role in determining desert bases.

For example, a person who has achieved a certain score on a test is entitled to the grade

that this makes appropriate. But, as Feinberg also recognizes, it makes sense to say that a

person who did less well on the test deserved a higher grade than he received. This can be

explained by the fact that the point of an institution of grading may be “to make as

accurate as possible an appraisal of the degree to which [the person or thing graded]

possesses some skill or quality” (Feinberg 1970, 65). And it may be, in a given case, that

a person’s performance on a test is not an accurate indication of the degree to which that

person possesses the relevant skill. She may have just “had a bad day.” She therefore

deserved a higher grade (the purposes of the system of grading would be better served if

she had a higher grade) even though she is not entitled to this grade. This desert claim

depends on the institution of grading (that is to say, on what the purposes of that

institution are) even though it is not a claim of institutional entitlement. It is quite

different from a claim that a person deserved to do better on the test because he tried so

hard. Trying hard does not entail having a higher level of the skill that the test is intended

to measure and that grades are intended to represent.

The example of grading illustrates one way in which certain forms of treatment

can be made appropriate simply by what a person is like or what he or she has done.

Awarding a grade or a prize is an act of expression. As Feinberg says, it is intended to

communicate that the subject has a particularly high level of some skill or other quality.

4

Awarding such a grade or prize is therefore inappropriate if the subject does not possess

this quality. So the possession of this quality is at least part of the justification for such an

act of expression.

It need not be a full justification, however.2 There are many ways of expressing

facts about a person’s level of skill, and these modes of expression have costs. Awarding

grades and prizes in certain ways, with certain kinds of fanfare or ceremony makes some

people feel good but makes others feel sad and disappointed. Inflicting these costs on

people is not justified simply by the fact that the message thereby conveyed is accurate. If

the distinctions marked by the system of grading are pointless, then the costs of publicly

awarding them with great fanfare may be unjustifiable. Similarly, expressing moral

blame often involves psychological pain for those who are blamed, even if inflicting this

pain is not the purpose of that expression (as the infliction of pain is part of the purpose

of acts of punishment) (Feinberg 1970, 67; compare Pereboom 2012, 193). So something

needs to be said about when and why such costs are justified.

Broadly speaking, these costs might be justified in two ways. The first is by

appeal to the beneficial consequences of the policy that has these costs. The second is by

arguing that, for one reason or another, the individuals who bear these costs cannot object

to them. Desert may play a further role in arguments of the latter kind. These two forms

of justification are not simply alternatives: they can be employed in tandem and in many

cases an adequate justification will involve both in some form. This is illustrated by the

case of legal punishment.

Legal Punishment

2 The limitations of “veracity” as a justification for responding to merit with good treatment are noted by (Sher 1987, 113-122).

5

Legal punishment has two aspects: it condemns certain actions as wrongful and it

involves some form of hard treatment, such as a fine or loss of liberty (von Hirsch 1992,

55-98 & 73-74). Both elements figure in the positive case for having an institution of

punishment. Governments owe it to their citizens is to affirm their rights by condemning

serious rights violations (whether or not this makes those violations less likely to occur)

and they also owe it to their citizens to discourage violations by condemnation and,

insofar as this is necessary, by threatening wrongdoers with forms of hard treatment

(Scanlon 2003, 219-233). But these two elements are separable: a public response to

wrong doing could express condemnation without involving any form of “hard

treatment,” so a justification for the former need not also justify any particular form of

the latter.

Both of these aspects of punishment have costs: individuals have good reasons to

want not to be condemned as well as reasons to want not to be subjected to fines or

imprisonment. These costs play different roles in the two arguments for punishment that I

just mentioned. Threats of condemnation or of hard treatment deter because they are

things most individuals want to avoid. But condemnation of wrong doers is owed to

victims simply because of its expressive content, not because those who are condemned

have reason to dislike it. The question we are concerned with, however, is how these

costs can be justified.

Fines, imprisonment and other forms of hard treatment are not justifiable unless

they are necessary and effective means to protect citizens against serious wrongs. But an

appeal to consequences alone is not sufficient justification. Policies of vicarious

punishment of the members of criminals’ families, or exemplary punishment of innocent

6

people chosen at random and framed, might deter, but would not thereby be justified.

This might be explained by appeal to the expressive content of punishment: those who

would be subjected to hard treatment under such policies would not be properly

condemned, since they have done no wrong. But this does not seem to me to be the whole

story. There is also the important fact that these individuals would have no opportunity to

avoid being treated in this way by choosing appropriately. Insofar as a policy of inflicting

hard treatment on wrong doers is justified this must be not only because it is an effective

way to protect others from being wronged but also because this policy inflicts this

treatment only on individuals who have had a fair opportunity to avoid being subject to it

(Hart 1968, 1-27).

This dual justification of the costs of punishment involves both of the forms of

argument I mentioned above: an appeal to consequences and appeal to factors that

undermine the objections of those who are punished. An idea of desert might, however,

be invoked to play the latter role. It might be said that wrongdoers cannot complain of the

hard treatment involved in punishment because these forms of treatment are deserved:

given what a wrongdoer has done, these forms of treatment are appropriate, and even

good things to occur, in part because wrongdoers have reason to dislike them. And, it

might be added, this is so only if only if these wrongdoers could have avoided doing what

they did. Such a claim seem to me quite false. It is never a good thing, morally speaking,

for anyone to suffer, no matter what they have done, and this is so quite independent of

whether those who might be made to suffer have free will or not.

I was earlier led to reject desert altogether because I identified desert with the

thesis that it is a good thing for people who have done wrong to suffer, or at least that this

7

is less bad than the comparable suffering of people who have done no wrong.3 It now

seems to me a mistake to identify desert with these retributivist ideas. But even if

retributivism is properly rejected, desert-based arguments still have a role in the

justification of moral blame and the condemnatory aspect of punishment. It is reasonable

to dislike having one’s moral faults publicly acknowledged. But those who have done

wrong cannot object to bearing this cost. They have no moral claim that their faults

should be ignored in order to spare them this psychological discomfort, because this

public acknowledgement is an appropriate response to what they have done. This does

not mean that just any form of public condemnation is justified. Some practices of

shaming may involve unjustifiable levels of humiliation. The point is just that official

public acknowledgement of the faults of wrong doers is made appropriate by these faults

themselves (it is deserved on this basis alone), and they therefore have no moral claim

against it. (By “the costs of the condemnatory aspect of punishment” I will henceforth

mean just the costs of such official acknowledgment.)

Earlier, I distinguished between two kinds of arguments in support of punishment:

arguments appealing the consequences of a policy of punishing wrong doers and

arguments that undermine the objections that individuals may have to bearing the costs of

being punished. The latter category includes both appeals to desert and appeals to the fact

3 George Sher defends this idea, on the ground that (1) those who seek value are therefore of greater value themselves; (2) the wicked are of lesser value than those who are morally good; and (3) the value of the happiness of an individual varies with the value of that individual (Sher 1987, chapter 8). I have doubts about the idea of value in terms of which this argument is stated (On this see: Scanlon 1998, chapter 2). So I am somewhat unclear about claims (1) and (2). There might be a way of understanding value in terms of which these claims would be correct. Claim (1) might be, for example, that those who seek value are therefore more to be admired and emulated. But claim (3) would not follow.

8

that individuals have a fair opportunity to avoid being punished, but these two forms of

argument are distinct and independent.

The fact that those who suffer a harm will have had a fair opportunity to avoid it,

by choosing appropriately, may make a policy that allows such harms to occur more

defensible.4 But it does not presuppose, or do anything to show, that it is in any way good

that people who have taken the risk of such harms should suffer them. By contrast,

desert-based arguments of the kind I am considering maintain that certain kinds of

response are made appropriate by what a wrong doer has done: that others are justified in

responding in these ways simply by the faults displayed in the wrong doers conduct.

It might, however, be said that the faults in question—the features of the agent

and what he or she has done that make blame appropriate—intrinsically involve doing

certain things, or having certain attitudes, freely; so a version of “opportunity to avoid” is

built into the relevant desert bases. Whether this is so depends on the kind of freedom

that is supposed to be in question. Here Hume seems to me to have been basically right

(Hume, Book II, Part III, Sections I & II).5 If someone did wrong only because he was

4 This is not true only of punishment but holds quite generally of policies that allow harm to occur. See (Hart 1968, 28-53; Scanlon 1988, Lecture 2; Scanlon 1998, chapter 6). 5 I say that Hume was only “basically” right because it seems to me that lack of liberty is a misleading way of describing the cases in which, as he puts it, an agent lacks “the liberty of spontaneity.” A lack of liberty may seem to be the crucial element in cases like that of a person who reveals a secret but does so only because she was threatened with serious harm. It may seem that such a person is not blameworthy for revealing the secret because she did so unwillingly. But this is misleading. The threat may undermine blameworthiness because it makes it the case that revealing the secret was justified, and therefore not blameworthy. And even if it does not justify revealing the secret, the threat changes the meaning of the agent’s action, by altering the reasons she had, or believed herself to have. The general phenomenon at work in such cases is that blameworthiness depends on a full picture of an agent’s reasons. Saying that an agent acted “willingly” or “unwillingly” is a way of referring to facts about these reasons, but it is misleading

9

forced to do this by threats or by the lack of acceptable alternatives (if he lacked what

Hume called the liberty of spontaneity), then this can change the kind of response that is

appropriate because it changes facts about the attitudes reflected in the agent’s action. It

is one thing to harm another person out of carelessness or spite and something different

(even if perhaps still wrong) to do so only because one believed this was necessary in

order to avoid a greater harm to oneself. But the fact that an agent lacked what Hume

called the liberty of indifference, that is to say, the fact that his psychological make up

was determined by conditions in the past, over which he has no control, and that, given

this make up, it was inevitable that he would act the way he or did, does not change the

attitudes he in fact has. Purely condemnatory responses (as distinct from “hard

treatment”) are justified simply by what an agent is in fact like, psychologically, as

revealed in his or her actions.6 This justification does not require that the agent had

control over (was responsible for) becoming such a person. If an agent does have some

control over this, then he or she may be open to additional criticism for failing to exercise

it properly—failing to take due care in regard to his or her own moral development. But

such control is not required in order for their present dispositions to be ones that are

appropriately condemned. In Feinberg’s terms, a desert basis need not itself be deserved.

To sum up this discussion of legal punishment: the hard treatment aspect of

punishment requires justification that appeals both to beneficial consequences and to fair

opportunity to avoid, but the cost of the condemnatory aspect of legal punishment (at

because it suggests that what is crucial is the agent’s “will,” or “liberty,” rather than the reasons the agent had and those he or she acted upon. For a similar point see Kelly, 2012. 6 For discussion of how this applies in the case of young children and the mentally ill, see (Scanlon 2008, chapter 4, esp. 156ff, 178-179, 197-198).

10

least the costs of its basic content) does not require justification of either kind. The cost

simply of being (properly) condemned can be justified simply on the ground that this

condemnation is deserved.

If, however, it is claimed that a certain form of treatment is appropriate simply

because of what a person in question is like, or what he or she has done, then some

explanation of the relevant idea of appropriateness is called for. Earlier, I offered one

explanation of this kind in terms of the expressive content of the treatment in question. If

the point or purpose of a system of grading, for example, is to represent the degree to

which various people possess a certain skill, then what makes a certain grade appropriate

is that is an accurate representation of this kind. As I noted, however, this falls short of a

full justification for an act or policy of assigning grades, since these assignments have

costs, such as embarrassment of those who get low grades. It is natural to find further

justification for these costs in the beneficial consequences of a system of grading, as a

source of information or a way of providing incentives. The condemnatory aspect of legal

punishment might be justified in a similar way. But I have suggested that this is not the

case, or at least not the whole story. The costs of the condemnatory aspect of legal

punishment can be justified purely on the basis of desert—they are made appropriate by

what a wrong doer has done—and this is even more obviously true of the costs of moral

blame. So I need to provide an account of the idea of appropriateness that is being

appealed to here that goes beyond the “expressive” account I sketched above, and to do

this I will turn to the case of moral blame.

Moral Reactive Attitudes

11

Suppose a person in your neighborhood has treated his wife very badly—abused

her physically, treated her in humiliating ways, and gambled away her inheritance. What

responses by his wife, or by you and other neighbors, does this make appropriate? To

begin with, it is appropriate to conclude that he is a morally bad person. In addition,

according to the most widely held accounts of blame and moral responsibility, it would

be appropriate to suspend, at least temporarily, friendly feelings toward the person,

replacing them by angry feelings of resentment and indignation.7 I would not deny that

these emotional responses are common and appropriate, but I believe that other responses

are also called for, including such things as:

1. Withdrawal of trust

2. Decreased readiness to enter into special relations such as friendship with the

person

3. Decreased willingness to help the person with his projects

4. Decreased tendency to take pleasure in things going well for the person and to

feel sad or regretful when they do not

I count all of these responses as forms of blame (Scanlon 2008, chapter 4). This

thesis is controversial, but I need not argue for it here. The claim that is relevant for

present purposes is that, whether or not they are forms of blame, they are all responses

that are made appropriate simply by what the person is like and what he or she has done.

The point of listing them here is to see whether, by focusing on this range of responses,

we can understand more about the relevant idea of appropriateness.

7 (Strawson 2003) is the classical statement of this view, which has later been developed by many others. See, especially: (Wallace 1993).

12

All of these responses are “reactive attitudes” in Strawson’s sense: attitudes

toward a person that are reactions to that person’s attitudes toward others, including the

modification or withdrawal of attitudes toward the person that one would normally have

held. To say that these are “reactions” to the attitudes of this person is not merely to say

that they are caused by his or her attitudes but also that they are seen by those who hold

them as made appropriate by those attitudes. More specifically, they are seen as made

appropriate by the fact that that person’s attitudes are deficient as measured by to the

standards of morality or some relevant interpersonal relationship.8 Two aspects of this

claim of “appropriateness” need to be explained: why the person toward whom they are

directed cannot object to this modification or withdrawal of normal attitudes, and what

positive reason others have for modifying or withdrawing their attitudes in these ways.

Withdrawal of trust might be justified prudentially, since trusting such a person

puts one at risk. Although this withdrawal has a cost to the person who is not trusted, the

cost of continued trust is more than the rest of us can reasonably be asked to bear. We do

not owe trust unconditionally, but only to the trustworthy. This explanation seems right

as far as it goes, but does not seem to capture all that is going on. Its prudential character

seems too limited.

Prudential considerations aside, the attitudes that are withdrawn in these

responses are not owed unconditionally, but only given the presence of attitudes that this

person’s actions show him not to hold. So the cost to him of our changed attitudes

consists only in the loss of something that we are not obligated to provide. It is thus a cost

8 The importance of such relationships was emphasized by (Strawson 2003). For fuller discussion see: (Scanlon 2008, chapter 4; Scanlon 2012, 84-99).

13

to which he has no valid objection. Moreover, we have good non-prudential reasons to

withdraw trust and the other normal attitudes that I have listed.

Consider first the reasons that the victim of the subject’s wrongdoing has. For her

simply to ignore the indifference to her interests that his actions indicate would show a

failure to take seriously her own moral status as someone entitled not to be treated in that

way. This would be inappropriate, servile and demeaning. And for us, as third parties,

simply to ignore the attitudes toward the victim (and perhaps others) that are indicated by

the agent’s actions would show a lack of regard on our part for the moral standing of

these people.9

It might be said in response that not resenting those who have wronged one, and

not reacting to them in any of the other ways I have listed, would not be inappropriate but

in fact particularly saintly: it would be good to respond to wrongs in this way if we could

manage it, even though most of us cannot. But reacting in this fashion seems saintly only

because it is more than is owed to the agent, and involves overcoming strong contrary

reasons. So on further examination the objection confirms, rather than undermines, the

points I have been making about our reasons for reacting to wrongs in the ways I have

described and about wrongdoers’ lack of standing to object to these reactions.

Moreover, simply overlooking the agent’s wrongs and faults would not be saintly.

This is clearest in the case of third parties. A saintly person cannot simply ignore the

wrong done to victims and the objectionable attitudes toward them manifested in an

agent’s actions. A saintly response must acknowledge these factors while somehow

moving beyond them. This may be less obvious when the saintly person is the victim,

9 For fuller discussion of the impermissibility, and blameworthiness, of failures to blame wrongdoers see: (Scanlon 2008, 166-179).

14

since she is in a position to forgive the wrong. But forgiving serious wrongs cannot be

simply ignoring them, lest it be self-demeaning (Hieronymi 2001, 529-555).

According to this account of appropriateness, what is appropriate is in the first

instance some attitude.10 In the examples I have listed, these attitudes are mainly

described negatively, as the withdrawal or diminution of other attitudes. My claims thus

have the following form: normally, a person would be open to moral criticism for failing

to have certain attitudes, such as a disposition to trust others, to help them, and to be

pleased when good things happen to them. But when others have themselves behaved in

ways that evince certain kinds of morally faulty attitudes, this makes it no longer

inappropriate to fail to have the attitudes just listed toward them, and one has good reason

not to have these attitudes.

These negative responses have positive analogs, for example in forms of gratitude.

If a person has gone out of her way to help us (in ways not morally required) then we are

open to moral criticism for not being more disposed to help her in return (in ways that we

would not be morally required to help someone who had not helped us.)

Many, although not all, of the responses I have been discussing involve intentions

that are appropriate only if the actions that flow from them would be appropriate. So the

ideas of appropriateness and desert that I am defending apply to these actions as well. We

can say, for example, that people who have behaved in certain ways do not deserve to be

trusted, or even that they deserve not to be trusted, where being trusted involves both

intention and, under the relevant conditions, certain actions. It is worth noticing, since it

10 As Feinberg says, “Responsive attitudes are the basic things persons deserve and … ‘modes of treatment’ are deserved only in a derivative way, insofar perhaps as they are the natural or conventional means of expressing the morally fitting attitudes” (Feinberg 1970, 82).

15

will be important is further discussion, that my fifth example—a reduced tendency to take

pleasure in good things happening to a person, and to be sorry when they do not—is an

exception to the point just made. The response in this case is centrally a matter of attitude

and affect, rather than action. I will return to this point in the next section.

Earlier, I explained the appropriateness of grades in terms of their expressive

content. Because grades are intended to represent the degree to which a person has some

skill or quality, the appropriateness or inappropriateness of a grade depends on the

presence or absence of this property. The explanation I have just been offering of the

appropriateness of various reactive attitudes goes beyond this simple expressive model.

Unlike grades, the reactive attitudes I listed are not primarily expressive in intent. But

part of their content—their reactive character—involves the idea that they are responses

to attitudes of others that are deficient, relative to the standards of relevant interpersonal

relationships.11 They would thus be inappropriate if the person toward whom they are

directed did not have attitudes that were deficient in this way. But a judgment that a

reactive attitude is not inappropriate in this way does not carry us all the way to the

conclusion that that reaction is appropriate. For that to be the case it has to be positively

justified, rather than merely not being based on faulty assumptions. It is therefore

important that victims and others have reasons of the kind I have mentioned for reacting

in these ways.

As the frequent occurrence of the phrase “subject to moral criticism” in the

preceding discussion indicates, the claims of appropriateness which underlie the idea of

desert I am defending are first order moral claims, about the kinds of consideration and

11 As Feinberg points out, these responses “have ostensible desert logically built into them” (Feinberg 1970, 70-71).

16

concern, and the degree of consideration and concern, that we owe to others. A

divergence between my view and Strawson’s similar view illustrates this point.

The responses I listed above might all be described as instances of what Strawson

called “withdrawals of good will” toward an agent in response to that agent’s attitudes

toward oneself or others. This is particularly true of the fifth entry on my list, a decreased

tendency to hope that things go well for a person and to be sad or regretful if they do not.

Strawson says, however, that withdrawal of good will can involve “modification of the

general demand that another should, if possible, be spared suffering” and a “preparedness

to acquiesce in that infliction of suffering on the offender which is an essential part of

punishment” (Strawson 2003, 90).

It makes a big difference what kind of suffering is envisaged here. Decreased

sympathetic concern of the kind I have just described, as well as other reactions such as

withdrawal of trust, withdrawal of affection and concern, and refusal of some kinds of aid

and association, all involve willingness to acquiesce in forms of loss for the person

toward whom they are directed, since they all involve withholding things that person has

reason to want. In my view, as I have said, willingness to “acquiesce” in such losses is

made appropriate simply by a person’s deficient attitudes toward others. But readiness to

inflict the kind of suffering typically involved in the hard treatment aspect of punishment

is an entirely different matter. It can be justified only on some basis other than pure

desert, such as the beneficial consequences of a policy of threatening and inflicting

treatment of this kind. This divergence between my view and Strawson’s is a first order

moral disagreement about which kinds of concern are owed to others unconditionally and

with are conditional upon their having the relevant moral attitudes toward others.

17

It is also a first order moral question whether responses of the kind I have been

discussing are appropriate responses to an agent’s attitude toward others only if that

attitude is under the agent’s control. It seems to me clear that this is not the case. We do

not owe it to others to trust them, to enter in to relations of friendship and cooperation

with them, or to help them with their projects, no matter what their attitudes toward us

and toward others may be. If they are prepared to manipulate and mistreat others

whenever this is to their advantage, this fact alone about what they are like makes it

appropriate for us to suspend or modify our normal attitudes toward them. How they

came to be that way, and whether they had any control over this, is another matter.

(Again: a desert basis need not itself be deserved.) We may owe them help in overcoming

their deficiencies of character. But this is different from owing them the continuation of

normal interpersonal relations.

I realize that this claim is controversial. When I focus clearly on the particular

responses that are in question, it seems to me an obvious moral truth. But its obviousness

depends heavily on what these responses are. As I just indicated in discussing Strawson, I

believe that desert-based justification alone can justify some responses, but only so much.

Beyond that, an appeal to beneficial consequences and perhaps to fair opportunity to

avoid is be required.12

12 When “fair opportunity to avoid” is required in order for a form of treatment to be justified—as in the case of legal punishment and of some other forms of legal and economic treatment—it is a question whether this involves an ability to do otherwise that is incompatible with agents’ actions being caused by forces outside them over which they have no control. I argue that it does not, but that this answer is more difficult to defend than the corresponding negative answer about the preconditions for moral blame. For further discussion, see: (Scanlon 1998, Chapter 6; Scanlon 2008, Chapter 4, esp. pp. 204-214).

18

Whether such appeal is required is a moral question about what conditions must

be satisfied in order for a particular form of moral response to be justified. In order to

arrive at a considered judgment about such a question about the conditions of moral

responsibility it is essential to first be clear exactly what response is in question. But

discussions of moral responsibility are often not very clear about this. As the quote from

Strawson illustrates, there is often a failure to distinguish clearly between responses of

the kind I have been discussing, on the one hand, and punishment (involving forms of

hard treatment) on the other. The term ‘blame’ is often used, unhelpfully, to encompass

both, or to cover a slide from the one to the other. So I conjecture that part of the

disagreement between compatibilists and incompatibilists about moral responsibility may

arise from unclarity of this kind—from the fact that various participants in debates about

moral responsibility may be thinking about the preconditions for different moral

responses to wrong doing.

Unclarity of this kind is particularly likely in regard to the fifth type of reaction I

listed above: a decreased tendency to take pleasure in something good happening to a

person, and a decreased tendency to feel sadness or regret when something bad happens

to them. A person is generally open to moral criticism if he is not pleased, or is even

displeased, when he hears of good things happening to others, and open to criticism if he

does not react with regret at bad things happening to them. But when someone has treated

others very badly it can cease to be morally criticizable to fail to be pleased when good

things happen to him or to regret it when he suffers some misfortune. To change one’s

attitudes toward a person in these ways might be called, in Strawson’s phrase, withdrawal

of goodwill.

19

But not being sad or regretful when something bad happens to a person is not the

same thing as thinking it to be a good thing, or justified, that the person should suffer this

fate, or even thinking that it is less bad that he should suffer in this way than that the

same thing should happen to some innocent person. Attitudes such as hoping and being

pleased, or regretting or being sad, need not involve or presuppose judgments about what

is good or justified.

The difference between these sets of attitudes is illustrated by our appropriate

responses to what happens to our friends. It is entirely appropriate to hope that one’s

friend wins the lottery, and to regret it when she does not win. But it this need not involve

believing that it would be a better thing if she wins rather than some other equally needy

person. The latter attitude would reflect the implausible view that what happens to one’s

friends is, morally speaking, more important than what happens to others.

Failing to draw this distinction can lead one to think that blaming a person

involves not only feeling less sad when something bad happens to her but also holding

the retributivist attitude that it is a good thing that she should suffer this loss, given what

she has done. But the idea that it can be a good thing that something bad should happen

to a person who has done wrong, even if she could not have avoided being the kind of

person who would act in that way, is very implausible. Given the assumption that blame

involves this retributivist attitude, this implausibility can then lead one to the conclusion

that it can be appropriate to blame people for evil actions only if they have free will. The

error in this line of thought lies at the beginning: in a failure to distinguish between not

regretting it when bad things happen to a person who has done wrong and the retributivist

attitude of taking this to be a good thing. The forms of blame that can be justified on a

20

pure desert basis involve only the former attitude. Forms of blame that involve the latter,

retributivist, attitude are morally inappropriate, whether those who would be the subjects

of these attitudes have free will or not.

Desert and Distributive Justice

In earlier writing, I distinguished between pre-institutional desert and institutional

desert, by which I meant what Rawls calls legitimate expectations (Rawls 1971, section

48). This is the idea that if justified institutions specify that those who do certain things,

or have certain qualifications, should be given certain forms of treatment, then those who

meet these conditions should have the specified forms of treatment.

The term ‘desert’ is often used to express claims of the latter kind, but I would

now reserve that name for claims to certain treatment that are justified simply by what the

person in question is like, or has done, without need for further justification. My reason

for doing this is just to isolate a particular form of justification, which needs to be

explained and distinguished from other forms. Claims of institutional entitlement need

not be justified in this particular way. That is, they will not be justified in this way unless

the justification for these features of the institution are in turn based on desert. When this

is not so, these entitlements will not be desert-based in the sense in which I am now using

the term.

In earlier writings I also expressed skepticism (and interpreted Rawls as

expressing skepticism) about the idea that there is a pre-institutional notion of desert

relevant to questions of distributive justice. Samuel Scheffler has raised reasonable

objections to this interpretation of Rawls, and he also interprets me as expressing

skepticism about a pre-institutional notion of desert relevant to the justification of

21

punishment.13 As I hope is clear from what I have said, I do believe that a pre-

institutional idea of desert is relevant to the justification of an institution of punishment,

even though it does not provide a full justification for such institutions. In this final

section of my paper I want to re-examine the idea of pre-institutional desert and, consider

drawing on the positive account of desert that I have outlined, whether such a notion is

relevant to questions of distributive justice.

First I need to say something about the sense in which the idea of desert that is

relevant to the justification of punishment is “pre-institutional.” I have said that because

punishment expresses a condemnation of certain actions, it is appropriate only when

those on whom it is inflicted have done something condemnable. In many cases, such as

murder, this idea of what is condemnable is pre-institutional in an obvious sense: the

actions in question are wrong quite independent of any institution that forbids them. But

this does not seem to be true of the condemnatory content of all instances of justified

legal punishment. People are properly condemned for tax evasion, for example. But there

is no such thing as taxes, or tax evasion, in the absence of institutions of a particular kind.

This is even true of some cases of theft, since property is a purely institutional notion. (I

say “in some cases” since some instances of theft interfere with the victim’s life in a way

that is wrong quite apart from any institution of property.)

Is there a pre-institutional wrong that is condemned by punishment for crimes of

the latter kind? The natural candidate is a failure to abide by the requirements of just legal

institutions. This general wrong is pre-institutional in one sense: it is not wrong because

13 (Scheffler 2001, 173-190). This is a fair criticism of what I said in my 1986 Tanner Lectures (Scanlon 1988). I corrected this error in later writing. See: (Scanlon 1998, 266-267; Scanlon 2003, 219-233).

22

forbidden by such an institution. On the other hand, its content (which things are wrongs

of this kind) depends on such institutions. Moreover, whether or not this wrong (and the

appropriateness of condemning it) is pre-institutional, it is not pre-justicial, in Scheffler’s

phrase (Scheffler 2001, 185). Refusing to obey the requirements of some institution is

properly condemned for the reason I described only if that institution is just (or

sufficiently close to being just.) So the wrong that is said to deserve punishment depends

on a prior conception of justice. The same is true in cases of what Rawls called

institutional entitlement, where the property on the basis of which a person is said to

deserve a certain form of treatment is the property of being entitled to this treatment

according to a just institution. So desert is not is not a basic determinate of justice in these

cases, not because it depends on some institution but because it depends on some

independent conception of justice.

If, then, desert is to have a fundamental role with regard to distributive justice this

will be because, as a matter of justice, certain forms of economic advantage are made

appropriate simply by facts about what individuals are like, or what they have done,

where these facts (what Feinberg called the desert basis) do not themselves depend on a

conception of justice. Such claims about justice would be individualistic in the sense

distinguished by Scheffler: their desert basis is “some characteristic of or fact about the

deserving person” (Scheffler 2001, 189).

This is not yet enough to distinguish a desert-based view, however. It might be

claimed that everyone who has a certain need should, as a matter of justice, be provided

with certain kind of benefit (for example, that every child should have access to a certain

level of education.) These claims seem individualistic, and they might be put in terms of

23

desert (that all citizens deserve to be treated equally and that all children deserve an

education.) But they do not seem to me to be based on desert in any distinctive sense.

So, narrowing this account, we might say that according to a desert-based view of

distributive justice the appropriateness of some economic benefits depends on the degree

to which individuals themselves, or their actions, meet certain standards of merit (in a

broad sense of “merit.”)14 The relevant standards could be moral or non-moral, specifying

as desert bases such things as:

1. Moral character

2. Degree of effort expended in productive or other labor

3. Special talents

4. The contribution that a person has made to society, in the form of economic

productivity or in some other form.

This seems to fit better with the ordinary idea of desert. If we say, for example,

that a child deserves a scholarship because of her distinctive academic talent this claim

seems to use the notion of desert in a more substantial way than the general claim that all

children deserve an education.

How might one argue against the idea that distributive justice is, at least in part,

based on desert in this sense? Scheffler suggests that what he calls Liberal Theorists

reject claims of desert in distributive justice on the basis of “the conviction that whereas

desert is individualistic, distributive justice is holistic in the sense that the justice of any

assignment of economic benefits to a particular individual always depends—directly or

14 These would be claims of what Michael Rosen calls “desert as merit.” See: (Rosen 2003, 118-124).

24

indirectly—on the justice of the larger distribution of benefits in society” (Scheffler 2001,

190).

This seems to me correct as a description of theories of distributive justice of the

kind that Scheffler, Rawls, and I myself hold. But as a reason for rejecting desert-based

claims of justice the thesis that distributive justice is holistic may seem question begging,

since it simply rules out desert-based views. Scheffler goes on, however, to offer three

more specific reasons for taking distributive justice to be holistic.

First, people’s productive contributions are mutually dependent in the sense that

each person’s capacity to contribute depends on the contributions of others.

Second, the economic value of people’s talents is socially determined in the sense

that it depends both on the number of people with similar talents and on the needs,

preferences, and choices of others. Third, people’s expectations of material gain

are linked in the sense that virtually any decision to assign economic benefits to

one person or class has economic implications for other persons and classes”

(Scheffler 2001, 191).

A satisfying argument against desert-based accounts of distributive justice needs

to consider and respond to the reasons for thinking that justice depends on desert. The

general idea that justice consists in giving people what they deserve may seem initially

plausible. But this plausibility is undermined from two directions: first by the recognition

that much of what people are due is determined by institutional entitlements, and second

by the recognition that (as discussed above) there are many forms of desert that it is not

the function of basic economic institutions to recognize (such as desert based on various

forms of excellence in games and contests.)

25

This leads me to conclude that the appeal of desert-based ideas of justice is more

piecemeal. It derives from the plausibility of claims that economic distribution should be

sensitive to particular forms of merit such as the four I have listed, rather than on the

general idea that justice depends on desert. If this is correct, then a satisfying argument

against desert-based views will also be piecemeal, consisting of arguments that

undermine claims of desert of these particular forms. So in the remainder of this section I

will examine why these properties of individuals and their actions might be thought to

make differences in economic benefits appropriate. Drawing on the account of desert

presented earlier in this paper and on the three points highlighted by Scheffler, I will

argue that the appeal of these claims of desert is largely illusory. I will be concerned only

with claims that desert has a fundamental role in the justification of significant

differences in economic benefit (leaving aside the role it may have, for example, in

making small monetary prizes appropriate.)

Consider first the idea that economic advantages should be distributed in

accordance with moral merit. Rawls argued that such a distributive norm was

“impracticable,” because there is no way to determine whether what seems to be

meritorious conduct really reflects greater moral merit or is due to other factors (Rawls

1971, 312). The difficulty might be that the moral merit of a person’s action depends on

the motives with which he or she acted, which are often difficult to discern. But Rawls

goes beyond this, and appeals also to the fact that a person’s “superior character” may

“depend in large part on fortunate family and social circumstances for which he can claim

no credit.” (Rawls 1971, 103-104)

26

This objection may seem to depend on the idea, which I have rejected above in

discussing moral blame, that a desert basis must itself be deserved. But there is another

way of understanding Rawls’ point. Suppose that one person’s good character is indeed

due to her “fortunate family and social circumstances” and that another person’s bad

character is similarly due to the unfortunate circumstances in which he grew up. Each of

these individuals would have had a different character, I am supposing, if they had been

placed in different circumstances as children. I believe, as I have said, that this does not

mean that they cannot be blamed (or praised) for actions expressing the character that

they in fact have. Leaving the question of blame aside, however, there is a further

question whether this difference in their character is an appropriate basis for assigning

them different levels of economic benefits. If the unfortunate circumstances in which one

of these people grew up were in fact unjust, this would undermine the degree to which

the effects of this injustice on the person’s character can then be taken to justify the

state’s denying him benefits that he otherwise would have been entitled to.15 So the case

for economic rewards based on individuals’ moral character, if there is such a case,

would not be independent of the justice of the background institutions that lead people to

develop such characters.

A more direct argument against distributing economic reward in accord with

moral merit even in a fully just society is that rewarding moral merit is not the function of

economic institutions. But this claim about “function” needs to be backed up in some

way. One argument in support of this idea begins from the third way in which Scheffler

15 For a fuller discussion of the parallel case of how wrongful treatment of a person can undermine someone’s standing to blame that person for what he does, see: (Scanlon 2008,175-179).

27

says that distributive justice is holistic. A justification for a claim that it is just for some

to have more than others needs to provide some reason why those who have less should

accept this distribution. But there is no reason for other individuals to accept less than

others simply because these others are morally more meritorious. Moral merit calls for

respect, admiration, and other responses, but not obviously for economic sacrifice.

This connects with a point I made earlier in discussing moral blame and legal

punishment. According to the idea of appropriateness discussed there, what is made

appropriate by a desert base, and hence deserved, is always in the first instance some

attitude. So we need to distinguish between the attitude (of respect, admiration, or

whatever) that is made appropriate by a given form of merit and the justification for a

specific means by which this attitude is expressed. In the case of blame and punishment

the need for further justification was raised by the further costs for those who are blamed

or punished. In the case of distributive justice what requires justification is the cost to

those who would have less as a result of a distribution accord with merit. The moral merit

of those who are given more does not, by itself, provide such a justification for

significant differences in economic reward.

Consider next the idea of effort as a ground for special economic reward. There

are a number of ways in which the reasons for rewarding effort might be understood. One

rationale might be that willingness to exert oneself (for the public good) is morally

meritorious, and therefore should be rewarded. This rationale for rewarding effort is open

to the objections I have just discussed. In addition, it is limited to cases in which effort is

exerted for non-self-interested reasons, and so would not apply to many cases of

economic interaction.

28

Another possible rationale is that exerting effort involves a sacrifice for which

someone should be compensated. This presupposes some background just distribution

(egalitarian or not), which is disrupted by the welfare lost due to exertion and therefore

needs to be restored by compensating for this loss. So it is this background standard that

is doing the justificatory work rather than an idea that effort intrinsically deserves

reward.16

A third rationale is that a person who has exerted greater effort has done this for

some reason, presumably in the expectation of some gain. It is therefore appropriate that

the person be rewarded with this gain, for the sake of which he or she has sacrificed. But

this is just the idea that it is wrong to disappoint legitimate expectations, rather than an

idea that effort, in itself, deserves special reward. So none of these reasons for holding

that effort deserves special economic reward supports a compelling desert-based claim.

Consider now the idea that those who have special talent deserve economic

reward for these talents, or for using them. I will assume, for purposes of this discussion,

that a person’s talents belong to that person, in the sense that it is up to him or her to

decide whether to develop these talents and whether or not to use them in a particular

way. There may be cases in which a person is obligated to develop a talent or to use it for

some particular purpose. But I will set this question aside since it does not seem to

involve claims of desert. Given that a person is free to decide not to develop or use his or

her talent, if a person is willing to use a talents only if offered a certain reward for doing

so, and if such a reward is offered, then the person is entitled to keep the results of this

transaction to whatever degree this is allowed by the applicable (just) laws governing

16 As Feinberg pointed out in the appendix to “Justice and Personal Desert” (Feinberg 1970).

29

employment, contract, taxes and so on. This argument depends, however, on the justice

of those laws. The question presently at issue is what role the idea that a talent deserves

special reward should play in determining what a legal framework of this kind would

have to be like in order to be just.

Some forms of talent, such as artistic and intellectual abilities, are distinctive

forms of valuable human excellence. This makes certain attitudes—such as admiration—

appropriate responses to their exercise. But it does not follow that these attitudes are

appropriately expressed by making those who have them significantly better off

economically, or that those who do not have these talents should accept this excellence as

a justification for their having less. This, again, is just the distinction between the

appropriateness of an attitude and the justifiability of a particular mode of expressing it.

In any event, the talents that receive special reward in a market economy are not

necessarily excellences but rather those abilities that are in demand and in short supply.

So insofar as a claim that talents deserve special reward is thought to justify rewards of

this kind, the relevant desert base is scarcity, which determines which abilities, among

those that are in some demand, will receive greater reward. As Scheffler put it, “the

economic value of people’s talents is socially determined in the sense that it depends both

on the number of people with similar talents and on the needs, preferences, and choices

of others” (Scheffler 2001, 191).

Here the relevant critical point was made by Rawls, in his remark that “no one

deserves his place in the distribution of native endowments” (Rawls 1971, 104, emphasis

added). This remark is often read as presupposing the idea that a desert basis must itself

be deserved. But this is not the correct interpretation. Rawls’ point is not that no one

30

deserves to have endowments that are scarce (although that may be true), but rather that

no one deserves any special reward simply because his abilities are scarce—that mere

scarcity is not a desert basis at all. This is not to deny that institutions that assign

premium prices to scarce talents and resources may not be justifiable, perhaps on grounds

of greater efficiency. If such an institution is justified in this way, and is just, then

individuals with scarce talents are entitled to the rewards that this institution provides.

This, however, is not a desert-based argument but rather an argument for institutional

entitlement, based on a prior conception of justice.

The last claim of desert that I will consider is the claim that individuals deserve to

be rewarded in proportion to their contributions to society. Contributions to the public

good can deserve gratitude. But this is so only if those contributions are made for the

right kind of reasons—roughly, reasons that are not self-interested. Moreover, the

appropriateness of gratitude does not entail the appropriateness of significant economic

reward, or justify the cost of such reward to those who would as a consequence have less.

It may be claimed that, quite apart from gratitude, individuals are entitled to a

reward proportional to their marginal contribution. But as Rawls and Scheffler point out,

an individual’s marginal productivity depends on the demand for what he or she can do

and on the contributions others are making, or could make, to the process of production

(Rawls 1971, 271; Scheffler 2001, 191). It depends on the overall productive system and,

I would add, on the justifiability of the form of cooperation that this system involves.

Contribution in this sense is therefore not a distinct property of the individual that is a

basis for a claim of desert.

Conclusion

31

I have identified desert with a particular form of justification: a claim that treating

a person in a certain way is made appropriate simply by what that person is like or has

done, without reference to the good consequences of this treatment, or to the fact that this

treatment is licensed or required by justifiable institutions. After examining some ways in

which the idea of appropriateness can be understood, I have maintained that a certain

(limited) range of attitudes in response to moral wrongdoing can be deserved in the sense

I describe. This idea of desert also plays a role, although not a conclusive role, in the

justification of legal punishment. But, I have argued, a pre-justicial concept of desert has

no role to play in the justification of significant differences in economic benefits.

My claim here is not just that the particular conception of desert that I have

examined earlier in the paper, based on the ideas of “appropriateness” that I have

explored, plays no role in distributive justice. It is rather that initially plausible claims

that individuals deserve certain economic benefits turn out, on closer examination, either

to be invalid or to reduce to claims of justice of some other identifiable sort.

Literature

Feinberg, J. 1970. “Justice and Personal Desert.” In Doing and Deserving. Princeton: Princeton University Press. Hart, H.L.A. 1968. “Legal Responsibility and Excuses.” In Punishment and Responsibility, 28-53. Oxford: Oxford University Press. Hart, H.L.A. 1968. “Prolegomenon to the Principles of Punishment.” In Punishment and Responsibility, 1-27. Oxford: Oxford University Press. Hieronymi. P. 2001. “Articulating an Uncompromising Forgiveness.” Philosophy and Phenomenological Research 62: 529-555. Hirsch von, A. 1992. “Proportionality in the Philosophy of Punishment.” Crime and Justice 16: 55-98.

32

Hirsch von, A. 1993. Censure and Sanctions. Oxford: Oxford University Press. Hume. A Treatise of Human Nature. Gutenberg Project. http://www.gutenberg.org/files/4705/4705-h/4705-h.htm.

Kelly, E. 2012 “What Is an Excuse?” In Blame: Its Nature and Norms, eds. N. Tognazzini, & J. Coates. New York: Oxford University Press.

Pereboom, D. 2012. “Free Will Skepticism, Blame, and Obligation.” In Blame: Its Nature and Norms, eds. N. Tognazzini, & J. Coates. New York: Oxford University Press. Rawls, J. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Rosen, M. 2003. “Liberalism, Desert and Responsibility: A Response to Samuel Scheffler.” Philosophical Books 44: 118-124. Scanlon, T. 1988. “The Significance of Choice.” In Tanner Lectures on Human Values, Volume VIII, ed. Sterling & McMurrin. Salt Lake City: University of Utah Press. Scanlon, T. 1998. What We Owe to Each Other. Cambridge, MA: Harvard University Press. Scanlon, T. 2003. “Punishment and the Rule of Law.” In The Difficulty of Tolerance, 219-233. Cambridge: Cambridge University Press.

Scanlon, T. 2008. Moral Dimensions. Harvard: Harvard University Press.

Scanlon, T. 2012. “Interpreting Blame.” In Blame: Its Nature and Norms, eds. N. Tognazzini, & J. Coates, 84-99. New York: Oxford University Press. Scheffler. 2001. ‘Justice and Desert in Liberal Theory.” In Boundaries and Allegiances. Oxford: Oxford University Press.

Sher, G. 1987. Desert. Princeton: Princeton University Press. Strawson, P.F. 2003. “Freedom and Resentment.” In Free Will, ed. G. Watson. Oxford: Oxford University Press. Wallace, J.R. 1993. Responsibility and the Moral Sentiments. Cambridge MA: Harvard University Press.

33