Schmidtz’s Pluralist and Indirect Consequentialist Theory of Justice

David Schmidtz’s freedom- and property-friendly work in political philosophy28 differs in character in a number of striking ways from the work of Steiner, Lomasky, and Rasmussen and Den Uyl. These other authors emphasize the contrasting value judgments that individuals make or the contrast between the ends that different individuals have reason to pursue. Yet they each think that reflection upon this pluralism leads to a doctrine of individual rights, which then is the most salient source of further political philosophical conclusions.

In his Elements of Justice, Schmidtz offers a theory of justice according to which there are (at least) four distinct, non-reducible elements of justice – desert, reciprocity, equality, and need (2006: 4). Each of these elements is the source of certain of the demands of justice. Moreover, a demand that devolves from one of these elements may conflict with a demand that devolves from another. Furthermore, any demand of justice that devolves from any of these elements does so with the assistance of empirical information about human psychology and the conditions for social, economic, and political progression or regression. Due to the important role that this information plays in determining the demands of the various elements of justice – and not just in determining how already established decrees of justice ought to be applied – Schmidtz sees himself as a practitioner of non-ideal theory. Non-ideal theory contrasts with ideal theory which, at least in its extreme form, seeks to derive principles of justice or doctrines of human rights or ends that all rational creatures should promote through purely abstract reasoning (Schmidtz 2011).29

Schmidtz sees his theory as less driven by a single, dominant normative theme than ideal theories are. Since there are more apparently independent, moving parts within Schmidtz’s system, he sees that system as less of a conceptually tightly knit doctrine than those offered by, e.g., Nozick, Steiner, Lomasky, and R&DU (and myself). In addition, by including the elements of equality and need within his overall account of justice, Schmidtz offers a more ecumenical vision than theorists who more readily accept the “libertarian” label than he does. (However, he does not reject the label.) Nevertheless, I believe that the account of Schmidtz’s overall stance that I shall be providing knits its elements together more tightly than may seem to be the case, shows the continuity of his stance with crucial strands within the libertarian position, and indicates that the elements of equality and need play a lesser role than Schmidtz’s language may lead one to expect.

According to Schmidtz, the concept of justice calls for giving people their due (2006: 7). This concept will allow us to say that punishment of the innocent is unjust because punishment can never be due to the innocent. However, most of the questions that we have about justice – e.g., whether people are due an equal income – cannot be determined by means of some finer explication of the concept of justice. According to Schmidtz, to arrive at answers to most of our questions about justice, we need an external standard. We cannot turn to the foundation of justice (whatever this may be) or the essence of justice. Rather, we must consult the function of justice, i.e., that for which justice is the foundation. Since questions about justice usually confront us at a more substantive level as questions about desert, reciprocity, equality, or need, most of our questions about justice have to be answered by determining what conceptions of desert, reciprocity, equality, and need best serve the external standard – that which justice is to foster.

What, then, is the good which is the end or function of, if not the essence of, justice? Schmidtz’s consistent answer is: cooperation to mutual benefit. We want to arrive at conceptions of the elements of justice that will lead society “to become and remain a cooperative venture for mutual advantage” (2006: 79). Schmidtz also speaks of this end as our living well together. And it is clear that, for Schmidtz, living well itself involves many factors – such as giving and receiving earned respect. We want to arrive at conceptions of just desert, just reciprocity, just equality, and just need that enable “people to live together in mutually respectful peace”30 (2006: 79). An important feature of Schmidtz’s position here is his pragmatic understanding of what makes for a good articulation of an element of justice – say, desert. A good articulation is not so much an articulation that accurately describes desert as an articulation, the expression, practice, or institutionalization of which fosters the end of desert, viz., cooperation to mutual advantage. A conception of an element of justice will pass muster to the extent that “institutionalizing, endorsing, acting on it” will be conducive to our living well (2006: 9–10).31

A great deal of EJ is devoted to highly nuanced discussions of the plausibility and consequences of adopting diverse conceptions of desert, reciprocity, equality, and need. Many of these discussions have no partisan political import. One example is Schmidtz’s discussion of “transitive reciprocity,” which calls upon recipients of favors to pass on similar favors to third parties who subsequently are in need of such favors. Think of a teacher who, as a student, received a particular type of attentive advice from a teacher and now passes on the favor by providing similar advice to one of her students. Still, most of Schmidtz’s explorations of different conceptions of desert, reciprocity, equality, and need do have political import; and, on one level or another, the import of these explorations is always libertarian friendly.

In the very first chapter of EJ, Schmidtz points to the general problem that people disagree about what actions should be performed and what ends should be promoted. However,

If we are to live in peace, we need a high level of consensus  on a long and mostly inarticulate list of “dos” and “don’ts”  that constitute the ordinary sense of justice with which we  navigate in our social world.

(2006: 6)

And we quite quickly arrive at the common libertarian theme that the solution is not to overcome our substantive disagreements but, rather, to devolve decision-making authority.

In effect, there are two ways to agree: We agree on what is  correct, or on who has jurisdiction – who gets to decide. …  Isn’t it odd that our greatest successes in learning how to live  together stem not from agreeing on what is correct but from  agreeing to let people decide for themselves?

(2006: 6)

The first topic that Schmidtz takes up with respect to desert is whether one should accept Rawls’ apparently general skepticism about desert. This skepticism relieves people who may be deliberating about what distributional norms ought to be adopted from worrying about whether those norms clash with independent claims of individual desert. Rawls’ skepticism turns on the view that someone deserves to gain from her productive activity only if: (1) she deserves the features of herself – e.g., her talents, energy, insight, perseverance – that issue in that productivity; and (2) no one does deserve such features because anyone’s possession of such features is a matter of her good luck in the natural and social lotteries. Schmidtz’s response is to deny (1).

We distinguish outcomes that owe something to a person’s  character from outcomes that do not. Desert makers, if  there are any, are relations between outcomes and internal  features of person. We need not (and normally do not) assume  anything about what caused those features.

(2006: 36)
[W]hen a person’s internal features support desert claims,  the support comes from appreciating what those features  are, not from evidence that they are uncaused. … [It is an  option] to say we deserve credit for working hard not because  we deserve to have been destined to work hard, but simply  because we did, after all, work hard.32

(2006: 37)

We are not, according to Schmidtz, compelled to adopt these claims rather than (1). However, if we adopt these claims, we will be more respectful of people and we will be more likely to have the kind of life we prefer. We will have “a theory that lets the concept of desert be what it needs to be in human affairs” – “a theory that acknowledges the existence of persons: beings who make choices and who are accountable for the choices they make” (2006: 38).

Of course, sometimes an individual will be merely lucky. Some benefit will come to her independent of any desert- making features she has at the time that the benefit arrives. However, even in these cases, this individual can make herself deserving of the benefit on the basis of what she does afterwards. “[W]hat once was morally arbitrary need not remain so. The most valuable things we are given in life are opportunities, and the main thing we do to deserve them is to do justice to them after the fact” (2006: 53). Why should we favor a conception of desert that gives people credit for taking advantage of even their undeserved opportunities? “One justification for giving people credit for using their opportunities well is that doing so empowers people to use their opportunities well, thereby helping them to live well together” (2006: 55).

Schmidtz begins his discussion of the equality element of justice with Bruce Ackerman’s tale about your arriving immediately before him at a garden containing two yummy apples which you quickly consume with one gulp (Ackerman 1983). Schmidtz accepts Ackerman’s condemnation of your behavior but argues that this involves no general presumption on behalf of equal shares. Rather, what is morally offensive about your conduct is its unequal treatment of Ackerman and, more fundamentally, its lack of equal respect for him. Indeed, equality of treatment and equal respect will yield unequal outcomes when there is some relevant inequality among recipients – e.g., inequality in contribution. The judgment that you should have left that second apple for Ackerman results from the application of equality of treatment to an extraordinarily artificial scenario (2006: 109–13).33 When persons do not arrive simultaneously, Schmidtz endorses the initial acquisition of unowned material on the basis of first possession. First possession gets the ball of human productivity and innovation rolling – in part because it allows early arrivers to invest their time and effort without fear of having to redistribute their products or their increasingly valuable land to later arrivers. Nor are later arrivers disadvantaged by the entitlements of the first possessors because the prospect of those entitlements is crucial to getting the ball of productivity and innovation rolling. “First appropriators pay the price of converting resources to productive use. Latecomers reap the benefits” (2006: 156). First possession also gets rolling the ball of secure possession that enables individuals – singly or jointly – to pursue their ends as they choose. “We cannot live together without rules that secure our possessions, thereby enabling us to plan our separate lives” (2006: 157). Furthermore, just as one should not mistake a demand for equal treatment with a demand for equal shares, one should not mistake a demand that no one (without fault) be badly off – which Schmidtz dubs “humanitarianism” – with a demand that everyone be equally well (or badly) off (2006: 114–19).

Schmidtz says, “I think need-claims are among justice’s irreducible primary elements” (2006: 161). However, Schmidtz worries about people focusing too much on momentary and static needs when they think about distribution according to need.

Need-based distribution can fail the test of self-inspection [i.e., does expressing or institutionalizing the demand for need-based distribution foster the meeting of those needs?] because alternative principles frequently are more conducive to people meeting their needs.

In many contexts, distributing according to need does not  result in people getting what they need. It induces people to  do what manifests need rather than what meets need.

In the long-run, large scale need-based distribution has  never been the key to making people in general less needy.  Even if meeting needs were all that mattered, we still would  not want to detach the awarding of paychecks, for example,  from what actually meets needs, namely productivity. We  still would want resources substantially to be distributed  according to productivity.

(2006: 167)

Schmidtz believes that a social world of cooperation to mutual benefit requires committed compliance to rules that are protective of individual liberty, property, and contract. In his focus on mutual benefit and on the crucial role that expectations of such compliance play in creating and maintaining such cooperation to mutual advantage, Schmidtz is heir to the classical liberalism of Hume and Hayek. Like Hume and Hayek, he recognizes the very broad sense in which his position is consequentialist. In addition, he recognizes that compliance may be undermined by defending it on consequentialist grounds. For, if the ground for compliance with certain rules is our living better with one another, shouldn’t one violate those rules if doing so would yield better or more extensive living together?

Schmidtz addresses such questions in his chapter, “Beyond the Numbers,” which begins with the TROLLEY case and the HOSPITAL case. In TROLLEY,

A trolley is rolling down the tracks on its way to killing five  people. If you switch the trolley to another track on which  there is only one person, you will save the five and kill one.  

(2006: 170)


Five patients are dying for lack of suitable organ donors. A  UPS delivery person walks into the hospital. You know she is a suitable donor for all five patients. If you kidnap her and harvest her organs, you save five and kill one.  

(2006: 170)

Many people will assert the permissibility of your turning the trolley toward the one and deny the permissibility of turning the scalpel toward the delivery person; and these people will seek to identify a morally significant difference between the cases. In contrast, Schmidtz concentrates on explaining the impermissibility of turning the scalpel and, perhaps, also takes that explanation to show the impermissibility of turning the trolley.

According to Schmidtz,

A broadly consequentialist theory needs to treat some topics as  beyond the reach of utilitarian calculation. … Why? Because,  from a consequentialist perspective, consequences matter and  because, as an empirical matter there is enormous utility in  being able to treat certain parameters as settled, as not even  permitting case by case utilitarian reasoning.

(2006: 171)

To get good results in the real world … we need to be surrounded  not by unconstrained maximizers but by people who respect  rights, thereby enabling us to have a system of expectations  and trust, which allows us together to transform our world into  a world with greater potential. … When we cannot count on  others to treat us as rights-bearers with separate lives, we are  living in a world of lesser potential.

(2006: 171)

If other people can count on us not to murder them,  new possibilities open up – opportunities people would not  otherwise have. In contrast, if people cannot rely on us not  to murder them, then our murderous act may be as good  as possible under the circumstances – it may hit the utility  ceiling, but the ceiling itself will be lower than it would have  been had murder been ruled out.

(2006: 172)

When doctors embrace a prohibition against harvesting  organs of healthy patients [or delivery persons] without  consent, doctors give up opportunities to optimize – to hit  the ceiling – but patients gain opportunities to visit doctors  safely. They gain a world with a higher ceiling. Such utility  comes from doctors refusing even to ask whether murdering  a patient would be optimal.

(2006: 173)

Schmidtz distinguishes between: (1) actions that hit local utility ceilings by departing from constraints that enable us to have a system of expectations and trust; and (2) actions that conform to such constraints and, thereby, make or maintain the prospect of hitting a higher systemic ceiling. And his claim here seems to be the Humean and Hayekian indirect consequentialist claim that strict compliance is to be favored because in the long run it raises us (or is likely to raise us) to that higher ceiling.

Nevertheless, there are hints of two alternative stances. The first of these is that strict compliance is better than case- by-case pursuit of best consequences because the potential upshot of strict compliance is better than the actual upshot of case-by-case decision-making; it is better to have a higher ceiling (which may be hit) than a lower ceiling that will be hit. The objection here, of course, is that actually hitting a lower utility ceiling can easily be better than possibly hitting a higher ceiling. The second of the alternative stances is the rule consequentialist claim that morality is about acting in accordance with the set of rules that has better (expected) consequences than acting in accordance with any competing set of rules. Such a rule consequentialist need not argue that eviscerating the delivery person will have worse consequences than abiding by a rule against unprovoked killing. For the rule utilitarian already maintains that rightness in action is a matter of complying with the best set of rules.

Schmidtz seems to be leaning toward the rule consequentialist claim when he aligns himself with “‘rule of practice’ utilitarians [who] decline even to ask about the utility of particular actions in particular cases” (2006: 173). However, if Schmidtz was advancing the rule consequentialist claim, he would condemn a secret evisceration in HOSPITAL simply because this act contravenes one of the rules within the best set of rules. However, Schmidtz instead offers the standard indirect consequentialist suggestion that the evisceration will not remain secret. Surely “UPS Inc. [will] wonder what is happening to all the delivery personnel they keep sending to our hospital” (2006: 173–4). Hence, the evisceration is to be condemned because of that act’s negative expected consequences. The difficulty for the indirect consequentialist strategy is that it is tied to our hope that violation of the rules that we favor will – sooner or later – have bad consequences.

Schmidtz provides a moving report about his discussion of TROLLEY and HOSPITAL cases with post-Soviet professors who refuse to concede the need to sacrifice the one to save the five. The professors say to him,

We have heard this before. All our lives we were told that the  few must be sacrificed for the sake of many. We were told  there is no other way. But what we were told was a lie. There  is always another way.

(2006: 176)

And Schmidtz writes that he more and more sees the wisdom of this response. For, “The real world does not stipulate that there is no other way” (2006: 176). However, I think Schmidtz needs to and can do better than this. For one thing, he could point to the fact that his consequentialism is a consequentialism of mutual advantage. Therefore, it precludes greatly benefiting the five by greatly harming the one – even if there is no other way to save the five. For another thing, Schmidtz could appeal to the concept of justice with which he began, viz., justice calls for giving people their due. Schmidtz tells us that, on the basis of this concept, we can conclude that not being punished is due to the innocent. Isn’t it equally plausible that not being killed is due to the innocent while being saved through the killing of an innocent is not due to the innocent? Indeed, in his penultimate sentence on the topic, Schmidtz aligns himself with the Rawlsian–Nozickian contention that “justice is about respecting the separateness of persons” (2006: 176). However, the justice invoked here does not merely require that one search for another way, but also that one refuse to sacrifice the one if no other way to save the five is found.

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