ARTIFICIALITY, EVASION AND ABUSE

There are various related motivations for adopting an institutional focus when theorizing about distributive justice. It has often been said that anything other than a publicly accessible system of rules would impose unacceptably high epistemic demands on citizens who need to decide whether their personal choices are violating the requirements of justice. Regulating certain institutions, or what Rawls called ‘the basic structure of society’, makes it clear to citizens what the requirements of justice actually are. Being constrained by institutional regulations also allows individuals to be assured that, by and large, their fellow citizens are abiding by the same requirements. Whilst being aware of the range of justifications for the institutional focus (p. 24), Tan places greatest emphasis on the need to respect what he calls ‘value pluralism’. Here Tan develops a version of a familiar story. In his words, a citizen's personal projects need not be derived from his or her commitment to principles of justice. Individual life plans instead stem from values ‘independent’ of justice. Citizens will typically pursue a variety of diverse ends, and what one individual regards as a meaningful way of life need not be justifiable to those holding rival conceptions of the good life. The regulation of institutions allows background justice to be secured in the first place. This gives the value of justice its proper primacy when it conflicts with personal ends. While institutional regulation causally constrains personal conduct, it leaves enough latitude for citizens to pursue their diverse plans that ‘give value and point to their individual lives’ (p. 26), without compromising their commitment to justice manifest in their obedience to the rules.

A common objection to the institutional approach, particularly when it is offered on something like Tan's rationale, is that dividing the moral labour allows individuals to evade what justice really demands of them. Critics of liberalism (and of Rawls in particular), have often urged that one's personal choices should be directly guided by a heartfelt commitment to egalitarian justice, rather than indirectly guided by rules that impose only limited constraints on such choices. The institutional focus, critics say, allows too much scope for the pursuit of non-egalitarian personal ends. The liberal division of labour can thus look like a concession to non-egalitarian conduct rather than a means of securing the primacy of egalitarian justice.

I shall provide a more detailed examination of this evasiveness objection – and Tan's response to it – shortly. First, I want to point out that evasiveness is not the only shortcoming of the institutional approach that its opponents perceive. Critics have also said that the institutional focus appears arbitrary or stipulative when faced with certain examples of intuitive injustices. This objection is commonly illustrated by cases involving the internal workings of the family. A parent believes that boys should be encouraged to work towards attending university and gaining a subsequent career in the professions, while girls should prepare for adult life as a housewife. Guided by this belief, the parent helps his son with school homework in the evenings whilst setting his daughter some domestic tasks. Intuitively, such discriminatory parenting is unjust. Proponents of the institutional focus must apparently maintain that the injustice here is reducible to the way in which the family is arranged as an institution. However, it appears arbitrary to diagnose the injustice as institutional when it seems traceable to the behaviour of one single individual, namely the parent who seeks to promote his son's academic future but not his daughter's. Why is it not more plausible to say of such a parent that his actions are unjust? If a parent acts on some sexist principle when deciding not to promote her child's intellectual development, this might be less objectionable than (say) subjecting a child to physical beatings, but it's not obvious what the qualitative distinction is. That is to say, there's still some pressure to accept that the problem is really one of the parent's own treatment of her child, rather than with the way in which some institution is being organized. Influenced by examples like the above, critics have argued that the structure of certain institutions is not fully independent of the behaviour of persons who have some role within them. G. A. Cohen has claimed that ‘the noncoercive structure of the family has the character it does only because of the choices that its members routinely make’ (see Rescuing Justice and Equality (2008), p. 136). The general point is that institutional structures are to some extent fixed by personal choices. If Cohen is right, any attempt to restrict justice wholly to such structures rather than their members’ choices is hard to make sense of.

Tan makes some interesting points regarding justice and the family. He plausibly suggests that it is a mistake to ask, in the first place, whether or not the family is wholly inside or outside of the basic structure of society. Tan proposes that ‘the family is both a part of the basic structure and not a part of [it]’ (p. 37), in so far as certain aspects of family life might be subsumed under forms of institutional regulation while others are not. My sense is that Tan is probably right about this. After all, as Tan says, we do have marriage law that clearly has some implications for family life, along with certain other laws pertaining to the raising of children. And Tan is probably also right to suggest that these important distinctions are overlooked in critics’ accusations that Rawls had a ‘wobbly’ view on justice and the family. But it's unclear, nevertheless, to what extent Tan is aiming to respond to the arbitrariness objection precisely as it occurs in the writings of Rawls's critics, on which the above summary is based. As I understand it, the objection doesn't require that it's all-or-nothing whether the family is part of the basic structure, even if critics like Cohen happen to have assumed so. The issue is really about whether all intuitive injustices that can occur within families can be identified with those ‘parts’ of family life that fit into the basic structure. I agree with Tan's claim that ‘there are practices and aspects of the family that fall directly under state regulation and hence are aspects of the basic structure of the family’. But it's not obvious that all intuitive injustices within the family can fall under such regulation without it looking artificial to deny that personal behaviour is what's being regulated. Noting that some family practices overlap with those of larger institutions is plausible enough, but there remain intuitively unjust practices that are hard to relocate in this way. Certain forms of bad parenting aren't institutional malfunctions, they're just bad (and intuitively unjust) ways for parents to behave. Tan is persuasive when identifying some shortcomings of Cohen's criticism of Rawls, but readers sympathetic to Cohen may still doubt whether personal choice and institutional design can really be distinguished in the way that the institutional focus requires.

Let me now turn to the evasiveness objection. Tan concedes that the institutional focus permits allegedly egalitarian principles, such as Rawls's difference principle, to be abused by acquisitive exploiters (p. 59). I shall assume that readers are familiar with the story here: in so far as the difference principle permits inequalities that benefit the least advantaged, it thereby grants inequalities that are not strictly necessary for such benefits to be secured. Such inequalities are only necessary in a weak sense, due to the contingent fact that certain talented individuals would withdraw their productive labour if not granted the incentive that results in the relevant inequality. This means that although the labour of the talented does benefit the worse-off to some degree, the benefit is smaller than it would be if talented citizens had the sort of egalitarian conscience that would lead them to share the products of their labour more equally.

Tan responds that an egalitarian principle does not lose its plausibility just because it is vulnerable to abuse from those who lack an egalitarian conscience. (Rawlsians often like to point out that the difference principle is certainly not designed to be exploited. Tan is rightly aware, I sense, that more needs to be said than this.) Tan argues that a principle's vulnerability to exploitation is not in general a reason to doubt the plausibility of that principle. In support of this claim, Tan draws a parallel with freedom of speech (pp. 59–60):

These remarks call for some closer scrutiny. Tan is right that, for principles like those granting freedom of speech, their vulnerability to exploitation is compatible with such principles being nevertheless plausible. What Tan doesn't ask, however, is what the explanation is for why his remarks about free speech are plausible. As such, he doesn't get round to asking whether this explanation extends to any other exploitable principles, such as the difference principle.

One explanation of why we should tolerate exploitation with respect to freedom of expression appeals to the negative consequences of censorship. A classic defence of freedom of speech asserts, roughly, that permitting ‘exploitation’ of the principle is in fact to society's advantage (see J. S. Mill, On Liberty, ch. 2). Granting an airing to implausible or even offensive views forces everybody else to work harder to justify their more plausible alternatives, thereby advancing the intellectual development of society. Censorship, on the other hand, assumes an infallibility that might lead to an undesirable suppression of speech on another occasion, and risks allowing plausible views to become dogmatically held, with the force of their motivations forgotten. On this sort of view, those who indulge in hate speech aren't really ‘taking advantage’ of anything. Even if the actions of racists and bigots are motivated by views incompatible with the motivations for the principle in question, what motivates granting bigots their freedom is some view about society's ability to respond to such speech in ways that are ultimately to society's advantage, rather than to the advantage of bigots. Of course, we might disagree with Mill's assessment of why free speech should be protected. In that case, however, we might begin to doubt whether the right to free speech is really unrestricted in the first place. Tan's comparison is weakened if significant restrictions are built into any principle granting freedom of expression.

Things are arguably very different with respect to the sort of acquisitive exploitation that might take place in a society whose basic structure is regulated by the difference principle. Whilst a decent society might be relied upon to condemn racist hate speech even when it is tolerated by law, people tend to respond differently when living under a set of rules that confer material reward on talented acquisitive persons. Rather than arousing disapproval, acquisitive behaviour tends to arouse feelings of inferiority among those who aren't in a position to exploit the rules that allow the talented acquisitive to gain the rewards in question. This concern is evident in older strains of egalitarian thought. Early in the twentieth century, R. H. Tawney worried that conferring special rewards on the economically productive would lead to a society in which ‘wealth becomes the foundation of public esteem, and the mass of men who labor, but do not acquire wealth, are thought to be vulgar and meaningless’ (see The Acquisitive Society (1920), p. 35). Tawney's claim has arguably been vindicated by recent studies. Sociologists now speak of the insatiable ‘consumption motive’ that has taken hold in developed nations, where people increasingly treat material reward as a measure of social standing and (arguably) a source of self-respect (see for example Juliet Schor, The Overspent American (1998)). If society were less ready to permit incentive-related inequality, then we might avoid the sense of inferiority and need to compete that one might regard as signs of an anti-egalitarian society.

Crudely, the point is something like this: When faced with racists and bigots, the decent majority condemns such individuals, and the results are perhaps better than what would be gained by relying on censorship instead. On the other hand, acquisitive exploiters of principles such as the difference principle may get away with things more easily. Here, the consequences might be particularly objectionable from an egalitarian point of view. Granted, I have not made a proper case here for why egalitarians might express the exploitation objection in precisely this sort of way, and Tan is not in any case attempting to respond to this sort of argument. The criticism of incentive-related inequality with which readers will be most familiar is the one put forward by G. A. Cohen. This well-known criticism makes more of the way in which incentive-granting policies treat acquisitive choices as ‘objective data’ in ways that violate some standard of community on which citizens recognize a need to justify their choices to one another (for example, Rescuing Justice & Equality, p. 60). The core of Cohen's critique of incentives is arguably not a diagnosis of what is objectionable about acquisitive choices, but rather a diagnosis of what's unjust about allowing such choices an exemption from any burden of justification. What I'm suggesting is that a defence of the institutional approach might need to deal with more than this core aspect of Cohen's criticism, namely, that the exploitation of distributive principles leads to a society that is inegalitarian in ways that go beyond what Cohen identified as the violation of justificatory community. I should again stress that Tan should not be expected to take on any egalitarian opposition to acquisitive behaviour before that opposition has been properly formulated. And I haven't had the space here to develop anything approaching a proper philosophical articulation of the point alluded to by Tawney, or what its proper connection might be with the difference principle. That said, I think that there is reason to hesitate before accepting that the exploitability (if it can be called that) of other defensible principles in political philosophy is one that can assuage egalitarian worries about the exploitability of the difference principle. I have merely suggested how Tan's appeal to principles of free speech, when examined more closely, offers some opportunity for seeing why the case for such hesitation might emerge.

CAN INJUSTICE BE IDENTIFIED WITH THE CAUSAL POWER OF INSTITUTIONS?

Tan distinguishes three familiar objections to luck egalitarianism. First, it is often said that luck egalitarians are embarrassed by certain harsh implications that follow from their basing distributive entitlements on facts about persons’ choices. Second, it has also been suggested that the distinction between luck and choice is unacceptably mysterious or implausible in the first place. Third, there is the complaint that luck egalitarians have missed the true ground of equality. According to this line, the ‘point’ of equality has an importantly relational and democratic character (p. 4), which can't be reduced to a need to regulate distribution according to the sort of choice/circumstance distinction that luck egalitarians favour. Tan has interesting responses to all of these objections. I shall concentrate mainly on the arguments he develops regarding the third objection, which is where he makes use of his earlier work on the institutional focus.

Let me quickly say how Tan handles the first of the three objections, since this is something he recalls in his response to the third. As most readers will be aware, complaints about the harshness of luck egalitarianism are typically made by highlighting any of the various ways in which an individual can become very badly off without being the victim of especially bad brute luck. The reckless motorcyclist who lies injured by the roadside, for example, apparently lacks any entitlement to assistance – her accident occurred as a result of risky behaviour in which she could easily have not engaged. Tan's response is to suggest that such cases lie outside the domain of egalitarianism construed as a source of principles of distributive justice. For Tan, the domain of distributive egalitarianism is restricted to matters of ‘how persons fare in relation to each other in relation to a principle of sufficiency . . . operational on the presumption that basic needs (however defined) are being met’ (p. 100). Since the alleged counterexamples to luck egalitarianism depict individuals whose basic needs are under threat, they turn out not to be counterexamples to a luck egalitarian theory of Tan's sort. What these cases show is only that we need some non-comparative humanitarian principle that operates prior to our comparative egalitarian one (p. 120).

The third objection, as Tan understands it, holds that luck egalitarianism is ‘asocial’ in so far as it is blind to the relational motivations of egalitarian theorizing. This objection can be sharpened somewhat. To link persons’ entitlements to facts about their circumstances requires highlighting aspects of a person's life in ways incompatible with proper respect for these persons. Critics from the democratic egalitarian camp have said that ‘when luck egalitarians come to the aid of the unfortunate, the motivating premise is that the victim is living a life that is less worthwhile’ (p. 129). In other words, linking a person's entitlements to unfortunate aspects of their circumstances requires us to take a perspective towards the ‘victims’ of brute luck that is condescending, patronizing or otherwise disrespectful.

An interesting aspect of Tan's response to this objection is his suggestion that the institutional focus can help luck egalitarians escape this worry about disrespect. Specifically, it possible to use this idea to modify the familiar luck egalitarian claim that injustice consists in uncompensated involuntary (i.e. brute luck) disadvantage. Tan maintains that ‘distributive egalitarian commitments arise only in the context of systematic social practices that turn arbitrary matters into differential advantages for persons’ (p. 187). Tan tells us that ‘what luck egalitarianism is concerned with, on my account, is how institutions deal with luck, not luck per se’ (p. 127). Importantly, this modification is supposed to inject a relational character into the luck egalitarian idea. As Tan reminds us, oppression is partly a matter of institutional design. By adopting the institutional focus, then, luck egalitarians need not focus on individuals’ respective fortune as if these are wholly independent determinants of entitlements: ‘[I]n as far as oppressive social relationships are supported by norms of the basic structure of society which distribute goods and resources on the basis of arbitrary factors . . . luck egalitarians can directly criticize such oppressive relationships’ (p. 132).

In this way, Tan demonstrates how a luck egalitarian can honestly claim to be motivated by a concern about human relationships. At the very least, Tan's version of luck egalitarianism does count as a view on which disrespectful judgement about a person's life seems to have been replaced with a judgement about institutional failings instead. Tan's union of luck egalitarianism with a focus on institutions has the added advantage of not requiring luck egalitarians to compensate for bad brute luck wherever it arises. As critics have maintained, luck egalitarians appear committed to quite odd instances of entitlements, such as providing ugly people with assistance in order to improve their appearance (p. 127). Now, the worry generated by such cases may just be a repeat of the one earlier. That is, identifying certain persons as ugly might be to make a humiliating or condescending judgment that is incompatible with proper respect for the person in question. Tan is prepared to grant that the force of such examples also stems from a more simple worry about a proliferation of entitlements, but he is able to explain why these cases need not embarrass a luck egalitarian prepared to adopt the institutional focus. The fact is that whilst being ugly might make an individual unhappy, any disadvantage isn't one that can be traced to facts about institutions. Tan is thus in a position to deny that the state must provide (say) plastic surgery for the ugly.

This is certainly an interesting way of developing the luck egalitarian position. But I would like to raise a few concerns. First, the appeal to humanitarian concerns might be more complex than Tan seems to suspect, at least to the extent that some further clarification may have helped. Tan relies on the view that egalitarian principles are comparative in a sense that humanitarian principles aren't – at any rate, Tan chooses this difference to secure the contrast between the two categories of requirement (p. 120). This understanding of egalitarianism's comparative character is laid out very early in the book (pp. 8–10) and goes somewhat quickly. Evidently Tan feels that any principle for regulating a distribution doesn't count as egalitarian unless it is ‘formally comparative’, which is to say that its ‘default comparative baseline is one of equal shares’ and that it ‘remains operational as long as there are economic inequalities to regulate’. Tan thus places ‘sufficientist’ and ‘prioritarian’ principles outside the range of egalitarian principles, but inside the range of principles that might be modified for use in making a distribution meet humanitarian requirements. Granted, there is a clear formal distinction between principles that can create an ordering of distributions by taking relations between persons’ respective positions as among their inputs, and prioritarian principles that treat information about persons’ absolute positions as the sole input. What's less clear is why the correctness (within the domain of distributive justice) of calling a principle ‘egalitarian’ depends on the formal properties of that principle rather than the motivations one has for adopting it in the first place. I make this point partly because there are some luck egalitarians who claim that a prioritarian principle may in fact be the most plausible principle for giving content to egalitarian concerns, even if that principle is formally focused on absolute levels instead (G. A. Cohen seems to be of this view; see for example the previously unpublished afterwords in On The Currency of Egalitarian Justice and Other Essays in Political Philosophy (2011), p. 70). Of course, it might prove controversial whether a principle can be regarded as ‘egalitarian’ in virtue of some claims about some more fundamental motivation and in spite of its formal properties. But such controversy might impede Tan's claim that humanitarian principles can be clearly separated from egalitarian ones in the way he wants. Indeed, such separation might even be undesirable, in so far as egalitarians are often motivated by the thought that severe material deprivation counts as a distributive injustice, not some failure to adhere to a moral principle of some other sort (I shall come back to this point shortly).

Second, there's the matter of disadvantages that are derived from brute luck but clearly don't require institutional mediation in order to obtain. Tan is well aware that natural contingencies can make someone badly off without her disadvantage being traceable to bad institutional design. Examples of ‘pre-institutional’ disadvantage are quite easy to think of – any sort of innate physiological condition with painful symptoms would suffice. (Of course, disadvantage will often not be wholly pre-institutional in such cases – institutional design might add to the disadvantage already caused by some innate condition. Whilst this is strictly beside the point, it may remind us that it's sometimes hard to identify the extent to which disadvantage occurs through institutional design rather than independently.) Tan suggests that these pre-institutional cases will tend to involve the frustration of basic needs. Recalling his response to the objection that luck egalitarianism is harsh, Tan maintains that severe pre-institutional disadvantage can be covered by whatever humanitarian principles we should adopt. Recognizing that some pre-institutional disadvantage does not threaten basic needs, Tan suggests that these cases will typically not be severe enough really to move egalitarians. Here he gives the example of marginally poor eyesight: ‘I don't think it is immediately counter-intuitive from the perspective of distributive justice to say that a society has no obligation of justice to provide corrective eyeglasses for people’ (pp. 142–3). Generalizing, Tan cautiously concludes:

Is this right? Well, one might think that the appeal to humanitarianism just makes the domain of distributive justice rather narrow. It's plausible (I feel) to think that questions about distributive entitlements can endure even once everyone has ‘enough’. But Tan's view seems implicitly to depend on some important differences between institutional and pre-institutional disadvantages. He suggests that pre-institutional inequalities that obtain above a sufficiency threshold are too marginal for egalitarians to be moved by. But, then, we might ask, why isn't the same thing true of relevantly institutional inequalities? For his luck egalitarianism to have substantial application, Tan needs institutional inequalities to exist above the threshold and be severe enough to be of concern. Without this, his sort of egalitarian principle has little to regulate. But if substantial supra-threshold institutional disadvantage exists, then one would expect the same of pre-institutional disadvantage. As such, either Tan's approach faces counterexamples (because of the presence of large pre-institutional inequalities that it tolerates), or suffers a lack of application (because of the absence of large institutional inequalities that would give it something to regulate).

So, one feels that Tan needs to secure a more meaningful distinction between institutional and pre-institutional inequality. Various options present themselves. Perhaps there is some non-contingent tendency for institutional inequalities to be larger than pre-institutional ones within the domain that Tan assigns to egalitarianism. If that can be established, then Tan could retain his confidence that his view has work to do in regulating institutional inequality whilst being free from undesirable tolerance of pre-institutional inequality. Or perhaps there are reasons to set the sufficiency threshold somewhat lower for institutional disadvantage than for pre-institutional disadvantage. If so, the work done by humanitarian requirements may leave more by way of institutional inequality that calls for regulation. Alternatively, one might think that there is some reason to be more concerned with institutional inequality even when it is marginal, whilst sharing Tan's intuition that the tolerance of equally marginal pre-institutional inequality (such as those between persons with different qualities of eyesight) is compatible with distributive justice. I have little sense of how easily any of these positions could be defended, or which (if any) would be most attractive to Tan given the other claims he wants to make. But it seems to me that Tan's commitments require him to say something more about this.

Overall, Tan succeeds in demonstrating how the institutional focus can help luck egalitarians meet certain influential criticisms. Readers familiar with G. A. Cohen's work, which I have mentioned several times in this essay, will be particularly impressed with the way in which Tan is able to respond to many of Cohen's powerfully presented arguments. It's possible that those with luck egalitarian sympathies might think that Tan has been a bit too concessive to his democratic egalitarian opponents: There's a case for resisting claims that there's anything disrespectful about identifying a person as unfortunate in order to establish an entitlement to some sort of state-provided help. And others might be prepared to bite the harshness bullet. These points aside, Tan's union of luck egalitarianism and the institutional approach secures some definite advantages. Whether it might also be vulnerable to particular problems depends, I suspect, on how it might be further developed beyond the arguments ventured in this fine book.

Tan's book should be taken as a powerful demonstration of what gives the institutional focus its appeal, as well as an imaginative account of how it can be extensively employed to advance other dimensions of egalitarian theorizing. One comes away from reading this book with a strong feeling that the case for the institutional focus has been enhanced, and that Tan has unlocked new potential for its further study. Tan has done much to advance the institutional focus in egalitarian distributive justice. He may have also helped highlight some ways in which it yet has questions to answer.Footnote ¹