Nagel’s “Equality”, a Defense of Rawls

There are two major developments which Thomas Nagel made in his chapter “Equality” in his book Mortal Questions. The first is the way he develops the debate around egalitarianism as a debate consisting of (at least) three competing values. The second major aim of this chapter is to develop a criticism of John Rawls’s A Theory of Justice which Nagel takes as an argument for a form of egalitarianism.

The three competing values which Nagel says are in conflict are the values of equal rights, equal consideration and substantive equality. People who support the first type of equality tend to frame rights as predominantly negative rights, which Nagel described in terms of a right to non-interference, or as a limited veto right against the actions of other people. The type of state which would be defended by people concerned with equal rights would be a libertarian state, in its purest form. With such a state, no amount of public opinion will be sufficient to impose a popular egalitarian law since such a law would impose unjustified restrictions on the freedom of some people.

The second value, the value of equal consideration, he identifies with utilitarian theory. This type of right is a right to have one’s experiences counted as equal to all other people. It basically states that when determining the structure for society, the best possible outcome is the society which leads to the highest overall utility. Due to the doctrine of diminishing marginal utility, such a principle should tend towards what I am calling substantive equality, meaning that in most circumstances the society which has the highest overall utility will also tend to be the society with the greatest (or at least a high degree of) equality. However, since the value is itself equal consideration and not substantive equality, it is possible that the theory would support an outcome which is very unequal if that arrangement would lead to the best outcome for aggregated utility.

His discussion of the third value, equality, starts with a discussion of John Rawls’s theory of justice, a theory which Nagel takes to be egalitarian. Nagel says that there are two arguments in normal moral theory, and a third which is theoretical, which he wants to discuss from Rawls’s theory. The first argument is that Rawls claims that inequalities that are the result of luck (e.g. from the unequal distribution of talents and abilities) are not themselves deserved, and can only lead to inequalities if they are to the greatest benefit of the worst-off in society, which is usually outlined in terms of the difference principle. Nagel thinks that this argument is not conclusive since it presumes that undeserved inequalities are morally arbitrary without justification.

The second argument Nagel considers is the argument Rawls made against utilitarianism that utilitarianism, while acceptable for a single person to use to guide their own action, is inapplicable at the state-level of action because, whereas I may be compensated for a loss I sustain at one point in my life, e.g. I can trade the tastiness of buttery popcorn for greater health later in life, it is unreasonable to expect one person to accept a similar trade-off at the society-level, e.g. I agree to give you ten thousand dollars because you will derive greater utility from that money than I will. Nagel’s response to this argument is simply that Rawls, as with the previous argument, does not provide reasons for us to accept his position. Nagel is not siding with the utilitarian, he is merely pointing out that Rawls has failed to give us any reason for accepting his position instead of the position supported by utilitarians. A trade-off like the one I gave above could be acceptable or required of us.

The third argument of Rawls’s which Nagel considers is his original position argument, which he uses to justify the difference principle, in addition to his other principles. According to Nagel the original position has two details which are of importance for his chapter. First, the decision made behind the veil of ignorance (in the original position) must be unanimous, second, it must be done without knowledge of the probabilities of being in any particular position in society, i.e. we do not know whether we will be one of the best-off or worst-off members of society.

Nagel’s chief complaint with Rawls’s version of egalitarianism is that it (seemingly) gives absolute priority to the worst-off in society. This, even though Rawls has given us no reason for thinking that the decision we made behind the veil of ignorance should be compelling to us once we have removed the veil. In other words, even if Rawls is correct in thinking that his principles of justice are the principles we would choose behind the veil, he still needs to prove that we should find this reasoning convincing in the real world.

In order to show why he thinks that Rawls’s principles of justice are too strongly egalitarian in nature, Nagel presents the following example. Suppose that I have two children, one which is normal and healthy, and the other which has a painful disability. We are given the choice between moving to an expensive city which is close to a treatment centre and special education facility for the second child, or moving to a semi-rural suburb which is not near either of the two facilities. If we take the first option, the entire family will be worse off since the city is very expensive, meaning that the first child will be much worse-off than she would be in the suburb. Furthermore, even if we move to the city, the first child will still have a very poor life, although somewhat improved over the life he would have in the suburbs.

While Rawls would seemingly defend the first option, moving to the city, Nagel thinks that the correct answer will depend on how we balance equality with the other two values of overall utility and rights. So while Nagel might agree with Rawls in the above scenario, he thinks that small changes to the scenario could lead him (Nagel) to change his position. For instance, there were two normal children instead of one, the disutility to the two children from moving to the city might be enough to outweigh the small benefit that would be received by the one child. More convincingly, Nagel believes that at some point we must acknowledge the value of overall utility. At some point the number of children on the one side ought to tip the scale away from the value of equality.

Having outlined Nagel’s argument I believe that Rawls could respond in a number of ways. First, the above argument is problematic because of its scope. Nagel has assumed that his argument is scaleable to the state-level of justice. My criticism here is that the type of problem which Nagel has described would never arise in discussions of justice since we never really face situations where we must do one of two options. We would not, for instance, be given the choice to either fund schools for the disabled or fund parks (which, for our purposes here, would benefit the rest of society more than the disabled). We do not have to choose between providing treatment for disabled people and having a good life, for Rawls, we can have both so long as that inequality leads to greater benefits for the worst-off.

My second criticism of Nagel’s argument is that the type of problem described above simply would not arise for Rawls because Rawls did not treat the severely disabled as subject to the principles of justice. The problem that Nagel has described is one where a group of people, i.e. the disabled, would require vast number of resources in order to improve their lives, effectively leveling down everyone else in society. Rawls has defined these people out of his theory in order to avoid this kind of objection, ensuring that the people at the bottom will be relatively easy to make well-off. The conflict between the values of equality and utility should not arise, except perhaps minor disagreements, since in most cases the poorly-off will be easy to make well-off.

This does not mean that Rawls’s theory is without flaw, as we may decide to push him on his unwillingness to include the disabled in the principles of justice (he does say that should be subject to our consideration at a second level of justice, just not to the principles themselves), but I do not think that Nagel’s criticism succeeds here.

Canada General Election – Part 1

Today I’m going to take some time to write about the electoral system in Canada. We have an election coming up at some point this year, most likely in October, and one of the issues that at least two parties are supporting is proportional representation. Both the New Democratic Party and the Green Party support electoral reform, with the NDP favouring what is called Mixed Member Proportional or MMP.

In later posts I’ll go into detail about MMP, but for now it will suffice to show what I think the problems are with the existing system. Our system as it stands is called First Past the Post or FPP. Our country is divided into 308 (which will change to 338 this year), with each of these ridings being represented by a single Member of Parliament (MP). In a general election eligible voters cast a ballot in the riding in which they live for the candidate of their choice. At the end of the night the candidate with the most votes wins, regardless of the margin or of the actual proportion of the vote they received.

In a country with only two parties, such as the United States, this will usually lead to the ‘winner’ in the riding with at least half of the vote. The problems only become pronounced when a country has more than two parties, with the problems becoming more pronounced the more parties we have. In Canada we have three main, national parties, each with support greater than 20% of the electorate, but less than 40%. The Conservative Party is right of centre, the Liberal party is roughly centrist, and the NDP is slightly left of centre. In addition to the main three, we also have one main regional party, the Bloc Quebecois which only operates in Québec, and the Green party, which has support of around 5% of the electorate. Both parties are roughly centrist, with the Bloc a bit further left than the Liberals.

To illustrate the main issue with the FPP system I’ll take the example of a recent poll released by OKOS Research. In the province of Ontario they have the Conservatives at 37%, the Liberals at 35%, the NDP at 18%, and the Greens at 6%. If we were to treat the province as a single riding with one representative there would be no clear winner, but the Conservative candidate would still ‘win’ because her or she has a plurality of the vote.

This gets even more pronounced with Québec where, in the same poll, the Conservatives have 22%, the Liberals have 23%, the NDP have 24%, the Bloc have 23%, and the Greens have 6%. If we treated this province as a single riding the NDP candidate would ‘win’ with less than a quarter of the vote.

Of course, nothing I have written here is novel, especially to people who follow politics on a regular basis. There is an organization called Fair Vote Canada which has as its goal to reform the electoral system and replace it with MMP. A couple years ago they released the following video where they illustrate FPP with pizza (in their example two people vote for meat lovers, with the remaining four people splitting their vote):

What I would like to do for the rest of this post is build on their example because I think that it falls short in demonstrating just how unintuitive FPP can be. When FPP goes from a single riding and is expanded to the results of multiple ridings the results can look very different from what the popular vote was. Further, this isn’t a mere theoretical possibility, the unintuitive results are actually projected.

At threehundredeight.com they compile and combine the polling data from different sources and use their expertise to project a seat count. They project that 33.4% of people would vote Liberal, 32.6% Conservative, 20.8% NDP, 5.9% Green, and 4.8% for the Bloc. From those figures they project that the Liberals would get 124 seats, the Conservatives would get 142, the NDP would get 66, two for the Greens, and four for the Bloc. This translates into the following proportion of seats for the following parties, 32% for the Liberals, 37% for the Conservatives, 17% for the NDP, 0.5% for the Greens, and 1% for the Bloc (mind the rounding).

What is stunning about the forecasted results is that it would give the Conservatives more seats than any other party even though they are forecasted to come in second place in terms of the popular vote.

To illustrate just how wrong this could turn out, let’s expand on the pizza example from Fair Vote Canada. Let’s imagine that we are students in a school with eleven classes. Each class has thirty students, giving us 330 students. In order to decide what types of pizza to order for an upcoming school-wide pizza party the principal has asked each class to elect one representative from their class to come to a meeting. At this meeting the students must vote on what type of pizza will be ordered.

Now, to make this manageable let’s assume that there are only three kinds of pizza which they can vote for. These are: vegetarian, meat lovers, and cheese (represented by V, M, and C).

Here is one way in which the vote could turn out. In classes 1-6 V receives 9 votes, M receives 10, and C receives 11 (adding up to a total of 54 for V, 60 for M, and 66 for C). If we were using FPP the voters for cheese would elect six representatives (out of 11). As for the remaining five classes, let’s assume that there is unanimous support for V, giving a total of 150 votes for V (but only five representatives.

Our tally is now at 204 for V, 60 for M, and 66 for C. But since the students don’t vote for the type of pizza directly, and since the principal only asks for a majority vote in this meeting to decide which pizza to order, the cheese party will win even though they represent only 20% of the students, whereas the vegetarians, with 62% of the votes get effectively no say.

The chief issue with FPP is not the first step where a plurality of votes is sufficient to ‘win’ a vote, although this is a problem as well, it is the second level where a majority of representatives have absolute control over the agenda of parliament, even though there is no guarantee that, at this second level, they even have a plurality of the original vote. Under FPP obscure results like the one I have described become more likely as the number of parties increases. It also accentuates regional differences and under-represents parties with even support over the entire country.

Rights of Future Generations and Resource Depletion

Richard De George defends the position that future people cannot be said to have rights due to the various issues that would arise if we treated them as if they did. He defends this position in “The Environment, Rights, and Future Generations” which was reprinted in Responsibilities to Future Generations, a volume edited by Ernest Partridge. De George’s focus is on resource depletion and whether future generations can properly be said to have rights to resources which are in limited supply. Before getting into the details of his arguments against the position that future people cannot have rights, I want to quickly go over what he thinks are the limits of his argument.

The first point to note about his position is that he sees the rights of future generations as a topic which has risen out of the increasingly complex world in which we live, at least in part because of technology. Although he does not put it like this, our increasing power to impact future generations of people, even in the distant future, requires us to re-evaluate our intuitions. We hold the power to destroy our way of life in a way which past generations could not. In light of these changes, people have conflicting intuitions about how we should deal with generations of the distant future, and it is here where he seemingly wants to focus (I say ‘seemingly’ for the reason that his claim about the novelty of the debate only makes sense when considering distant generations since, presumably, past generations have had the ability to influence near generations since the beginnings of human society and hence would not count as a novel debate).

The second point to note is that De George only takes his argument to show that rights claims cannot work in the narrow circumstance he is here describing. He says at both the beginning and end of his paper that a more comprehensive argument is needed in order to fully determine what, if any, rights are held by future people. We should not, therefore, take his argument as a definitive attack on rights qua rights for future generations.

The third point to note is that he makes what has become the definitive argument for the claim that future people cannot have rights. The argument says that future people cannot be said to have anything since the present tense verb ‘to have’ does not make sense within the context of future people. Although I do not want to get into the debate here, it should be noted that De George makes a much subtler point than the debate would have us think. What he says is that future people cannot have rights in the same sense as presently existing people have rights (159). This leaves open the possibility that future people can have rights in a different sense, whatever that sense may be, but as he argues at both the beginning and the end of his paper, determining the nature of these rights must be done at length somewhere else.

The position he attempts to defend in this paper is that future generations of people do not have a right to limited resources such as oil. If we use all of the available oil in the next twenty years, so long as we don’t waste it, then future generations will have no right to the use of oil. For this claim he gives three arguments.

First, people can only have a right to something which exists. As an example, if two parents conceive a child who happens, through bad lack, to inherit sickle cell anemia, then that child simply cannot have a right to have been born without the disease. Since the child’s identity is determined by her genetics, and since sickle cell anemia is in inherited trait, she would not exist and could not exist without the disease. She, therefore, cannot have a right to have been born without the disease. Similarly, at least according to De George, if oil is consumed prior to the birth of some future person, that person cannot have a right to use oil.

An argument given by another author, which I find easier to work with, is that current people cannot have a right to see a live Dodo bird since the Dodo is currently extinct and we cannot have a right to see something which does not exist. The problem with arguments of this kind is that they have the consequence that present people can do anything with a resource (or with the Dodo) so long as they are careful to us all of the resource (or hunt the Dodo well). Let’s say that we want to determine whether future people have a right to see a Black Rhino in the wild, of which there are only about 4000 left. If the above argument is correct that future people only have a right to something which actually exists, then we can fulfill our duty by either conserving the Black Rhino or by hunting it to extinction. In the first case we will discharge our duty by ensuring that future people have the opportunity to see something which they have a right to, and in the second we ‘discharge’ our duty by ensuring that future generations do not have a right to see the Black Rhino.

While De George, and others who have made this argument, might be correct in saying that future people will have no right to see a Black Rhino if they no longer exist at some point in the future, their argument contributes nothing to the real issue. The real issue being whether we have duties to future generations. If we still have a duty to preserve the Black Rhino, or oil for future people, then it is useless to ask whether future people have a right to the Rhino or the oil, our actions are already constrained.

The second argument he makes is that if we assume that all future generations have a right to oil, but we also know that the supply of oil is finite, then there must be some generation in the future which uses the last of the oil and therefore violates the rights of the next generation (161). We would have to perpetually save oil, which would undermine the point of the right of future generations to have oil. Before addressing this point I would like to outline De George’s third argument which makes a similar point.

The third argument he makes is that we (present generations) would face impossible demands. We would have to determine how much oil each person has a right to which would give us each very little oil to use, perhaps a thimble full. Given the problems with ascribing rights to future generations for oil, he thinks that it is best to leave them out of consideration altogether. Future people do not have a right to use oil. (161)

The reason why I treated the first argument separately from the second and third is because I agree with De George that future people do not have a right to oil. And I think that the two reasons above give us good reasons not to treat oil as something which future people can have a right to. My point of departure is that I think no generation has a right to use oil to any extent they desire. Resources aren’t the kind of thing which people have a right to. While it makes sense to say that we have a right to clean air or to a stable environment because those things aren’t limited, any limited resource cannot be the kind of thing we have a right in. It is useful to help us fulfill our needs, but it is not the only means to our ends. Without oil to burn I can still heat my house with wind power or solar power. I can power my car with electricity, and with some adaptation, I can do practically anything I can currently do without oil.

There is nothing necessary about oil which gives future people a right in it unlike something like clean air. While I think it is plausible to deny that future people have a right to oil, it is a lot less plausible to claim that they do not have a right to clean air. If in the next hundred years we do something to the atmosphere to make the air unbreathable, or at least damaging to one’s health, it would be hard to defend a position which claims that at the time when the damage was done to the atmosphere, future people had no rights to a clean atmosphere. Or to use a more realistic example, if in the 80s and 90s when science started to show that CFCs were damaging the ozone layer people decided to continue using CFCs knowing that their actions would harm future people, it would be hard to say that the people of that era did not violate the rights of future people.

What my criticism of this paper comes down to, or more correctly, my criticism of the way in which De George’s argument has been interpreted, is that while De George may have present some good reasons for us to assume that future people do not have a right to finite resources, that group of rights was dubious to begin with. The focus on his semantic argument about how we use the verb ‘to have’ has taken on a stronger usage than De George intended, and still needs to be defended with greater rigour if people want to use it to defend the much stronger claim that future people cannot have rights.

De George, Richard T.. “The Environment, Rights, and Future Generations.” In Responsibilities to Future Generations: Environmental Ethics, edited by Ernest Partridge, 157-165. Buffalo, New York: Prometheus Books, 1981.