Abstract
In this critical review, I address two themes from Shelly Kagan’s path-breaking The Geometry of Desert. First I explain the so-called “bell motion” of desert mountains—a notion reflecting that, ceteris paribus, as people get more virtuous it becomes more important not to give them too little of whatever they deserve than not to give them too much. Having argued that Kagan’s defense of it is unsatisfactory, I offer two objections to the existence of the bell motion. Second, I take up an unrelated issue—the relation between comparative and non-comparative desert. I argue that, given a certain disaggregationist view of comparative desert, it is possible that comparative desert is not satisfied, even if non-comparative desert is perfectly so. Unlike my objections to the bell motion, this possibility adds further complexity to an already complex Kaganian account of desert.
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Notes
I suspect, however, that people’s graphical intuitions also differ. See the discussion in below in relation to Figure 5.15.
For some misgivings, among praise, in this direction, see Smilansky (2013).
One could also express the person’s desert peak by referring to the y-value of S.
Again, Kagan considers many alternatives to the assumption—the standard skyline—made here, but these can be ignored for present purposes.
Of course, of both of them it is true that it is best if they receive the exact amount of well-being that they deserve. Assuming that this is not possible, however, we can still assign a (lower) value to various levels of well-being below and above their peaks.
In Figure 3.33, the peak of the Sym mountain is on the y-axis. It could be located elsewhere, as Kagan argues, but its location is irrelevant for my purposes below.
Kagan (1999, 308) appeals to the bell motion in a critique of egalitarianism.
All of the examples I give relate to non-comparative desert. He thinks that comparative bell motion is implausible (Kagan 2012, 490–492).
The reverse point presumably applies to the very vicious, i.e., that in their cases, the gentler western slope is earned. Hence, mercy cannot explain why it is better to make the very vicious suffer more rather than less. Note also that it is not entirely clear how seriously Kagan takes his own reply. After all, he calls his reply a “potential reply” and places “earned” in square quotes.
The example reflects a disaggregationist view of value from the point of view of desert (though “disaggregationist” in a way different from the one Kagan (2012, 332–345) employs) in that the factors that determine the desert peak are not identical to the factors that determine the value deriving from a person’s being below his peak. I will return to such a view below.
This alternative explanans comes in two versions. First, it might be said that the relevant intuition is explained by considerations about responsibility not desert. (A similar observation might apply to my remarks above concerning “earning a gentler slope”). Second, the explanans might appeal to considerations about disaggregated desert, i.e., what Amos and Boris specifically deserve with respect to the particular problem they face, as opposed to aggregate concern. Nonetheless, neither version supports the bell motion.
One noteworthy difference between the present example and Kagan’s is that the present one involves an intrapersonal setting—i.e., the issue is how far from his desert peak one particular individual ends up—whereas Kagan’s involves an interpersonal setting—i.e., the issue involves two different individuals, one less deserving than the other.
Some might think that the very idea that there is something good about the fact that a wrongdoer suffers is unappealing or even repugnant. Rationally speaking, however, nothing prevents people who hold this view from sharing the comparative intuition to which I appeal in the present argument against the bell motion. Indeed, the view that −121 is definitely worse than 0.5 risk of −120, and 0.5 risk of −80 seems congenial to the rejection of the present retributivist view.
Perhaps we are influenced by the thought that the sinner has wronged others and that we wrong them by under-punishing him.
For a critical discussion of this view, see (Lippke 2010). Strictly speaking, for Blackstone’s quote to support my claim that many hold the view I attribute to them, punishing an innocent would have to be thought of as an extreme case of over-punishment. This might seem a bit strained but is actually quite realistic. Most people who are innocent of a crime of which they are accused but ultimately not punished for are not innocent as such; e.g., they might have committed speeding offenses for which they have received no punishment. Thanks to Victor Tadros for objecting to my appeal to Blackstone’s slogan.
We should, of course, worry a lot about punishing virtuous criminals in general. I set this aside in part because in order to explore it, I would have to discuss whether deserved punishment depends on the overall level of desert or on the particular criminal act; see (Tadros 2011, 66–73) for an insightful discussion. While important in itself, this matter is different from the one I draw attention to here.
One implication of some versions of the bell motion which Kagan does not mention and which might strike some readers as damaging is the possibility of a “virtue monster;” that is, a person who is so virtuous that her eastern slope is so steep that just a tiny drop in her level of welfare results in a worsening of the situation even if that tiny drop were instrumental in bringing about a very large number of not very virtuous people, who are below their peak, significantly closer to it. To the extent that we find such a virtue monster implausible, this is a reason for believing that the bell motion is restrained, not that it is non-existent.
Here, one should make sure to discount any influence from intuitions pertaining to comparative desert, which, in this case, would favor the first option.
The slightly more virtuous person is not needed for its being better to increase this person’s level of virtuousness. The former is included for presentational purposes.
One wonders why Kagan does not find desert mountains problematic due to the discontinuity they involve. After all, peaks imply that a small change in the level of well-being can result in a discontinuous change in the slope of the desert line, e.g., slope changes discontinuously from being positive to negative. Presumably, Kagan could say that while this is prima facie implausible, there is a rationale for such a discontinuity, namely, that the peak expresses the exact level of well-being a person deserves and that any deviation therefrom, positive or negative, is bad. This seems fine, but it raises the question of whether a rationale can be provided for some of the other cases of discontinuity that Kagan dismisses as implausible.
In fact, there are such discontinuities, e.g., when a substance changes from solid to liquid form, and from a liquid to a gas.
I might be misreading Kagan here. Perhaps he simply dismisses the “ever increasing divergence” objection because it applies to the proposal he makes to accommodate the discontinuity objection too, and not because he dismisses the objection as such. Elsewhere, Kagan writes: “Trivial differences in the level of virtue or vice should make only trivial differences in the Y coordinate” (Kagan 2012, 156). However, this passage need not be read as an expression of the same view that I have been espousing here. The reason is that this passage is followed the claim that trivial differences in the level of virtue or vice “should never result in abrupt changes” (Kagan 2012, 156) and if the meaning of the previous sentence is determined by the meaning of this ensuing sentence, Kagan’s point here is the same as the one I have been taking him to make in the passage quoted in the main text.
Kagan appeals to (2) in his critique of the virtue interpretation of the ratio view (Kagan 2012, 373). My present objection does not undermine this particular critique.
For the related view that a distribution is fair if no one believes that he is worse off than anyone else and, thus, no one can, by his or her own lights, complain about being worse off than others, see (Clayton 2000, 75–81; Dworkin 2000, 294; Hansen and Midtgaard 2011, 344–347; Williams 2002a, 386–389; Williams 2002b, 34–37).
Cf. such a first-person perspective on justice: “from the point of view of justice, an individual can plausibly claim that she is less advantaged than another in virtue of having a physical impairment or taste only if she would prefer to have the other’s physical resources or taste” (Clayton 2000, 76).
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Acknowledgments
I am grateful to Thomas Søbirk Petersen, Massimo Renzo and Victor Tadros for insightful comments on an earlier draft of this article.
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Lippert-Rasmussen, K. Desert, Bell Motion, and Fairness. Criminal Law, Philosophy 10, 639–655 (2016). https://doi.org/10.1007/s11572-014-9338-x
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DOI: https://doi.org/10.1007/s11572-014-9338-x