In one of the few detailed and explicit analyses of the relation between fairness and inequality, Cohen (2011), in some of his later work, asks whether option luck ever preserves justice and fairness in distribution. In general terms his enquiry is whether, despite the fact that choices generate inequalities, those choices can preserve the fairness of a nevertheless unequal distribution. Framed in terms of the language of the foregoing, Cohen argues that all inequalities justified under any proposed principle of stakes embody a pro tanto unfairness. In service of this claim he reflects on two cases. In the first case, Cohen considers a group of people amongst which there is whatever counts as the relevantly equal distribution who unanimously will that all members of the group give half of their assets to two of the members of the group – Sarah and Jane. In the second case, Cohen describes a situation in which persons A and B, again between which there is a perfectly equal distribution, decide to gamble half their total assets ($100,000 total) against one another in a 50–50 toss of a coin. As a result of the 50–50 gamble, one person ends up with $150,000 and the other person with $50,000. Though in each case the resulting distributions are, Cohen (2011, 133) allows, ‘legitimate’ in the sense that “no one has a right to complain about the outcome,” they are nevertheless unfair.Footnote 4 To put this in the ‘responsibility’ terms of the paper: whilst it is legitimate to hold individuals substantively responsible for the outcomes of their choices, their substantive responsibility is not, in at least one important sense, either permitted or required by fairness.Footnote 5
So, to be clear, Cohen holds that whilst inequalities that result from individuals’ responsible choices might be legitimate in the sense that “no-one can justifiably complain about it on the grounds that it wrongs her,” they nevertheless remain unfair in the sense that the distribution, by involving inequality, fails to be “appropriate to everything to which a distribution ought to be appropriate.” Legitimacy, therefore, regards the nature of the complaint that a wronged party can bring against others whereas fairness concerns whether there is an inequality which represents a bad-making feature of the distribution. For Cohen, then, the inequality between the person who ends up with $50,000 and the person who ends up with $150,000 is legitimate in the sense that the former has no ground for complaint at being worse off, however it remains a bad-making feature of the distribution, and in that sense unfair, for the former to be worse off than the latter, even though their being so is a result of their own responsible choices. On this view responsible choices confer legitimacy without fairness.
Cohen’s claim concerning fairness and legitimacy is relevant to the ambition of the paper in the following sense: it is an instance of the view that although inequalities can be justified (reasons can be offered that in some sense vindicate the inequalities; in Cohen’s argument by eliminating grounds for a complaint) they are not, merely in virtue of being so justified, rendered fair. From this perspective, a principle of stakes can provide an account of the justified character of inequality without necessarily offering reasons for thinking those inequalities are fair.
Cohen’s argument therefore offers a helpful backdrop to the chief contention of the paper inasmuch as it highlights the need to offer reasons in favour of the fairness of inequality specifically. To be clear, then, the intention is not to endorse Cohen’s position but to use it to illustrate the kind of account that is necessary to explain the fairness of inequality. In this way, I will suggest that only certain kind of reasons are of the right character to ground a response to the challenge presented by Cohen. Before I arrive at the positive case for this conclusion, let me first explain why I think Cohen’s doubts about the fairness of chosen inequalities should be taken seriously.
One quite understandable response to the Cohen position is to simply deny his claim and instead maintain that the resulting distributions in the gambling and Sarah-Jane cases are wholly fair rather than merely legitimate. That is, to deny that the inequality is a bad-making feature of the distribution in any respect.Footnote 6 So one might simply maintain, pace Cohen, that not only do the responsible choices relieve the worse off individuals of any grounds for complaint at their being worse off, but furthermore that the choices render wholly fair the inequalities consequent on them. Although I take it that this is indeed a plausible position, I suggest we can and should do better than to simply assert this conviction against the Cohen view, as opposed to explaining and justifying it. Cohen’s challenge itself is more than a simple intuitive denial of the fairness of chosen inequalities, so a mere appeal to competing intuition seems unsatisfactory if what we are looking for is a way of responding to his argument. Importantly, Cohen points out that the resulting distributions in his examples are no longer fair by the same criteria that made the initial distributions fair and asks why, if inequality is judged unfair by particular standard, choice makes a difference to the standard by which we judge the fairness of the subsequent distribution? Anchoring this analysis to the Sarah and Jane case, we can say the following: whilst members of a group unanimously will the redistribution of half of their assets to Sarah and Jane, creating inequality by way of making both Sarah and Jane better off than others, the initial distribution was a fair one because it was an equal one. Cohen rightly claims that this standard of fairness judges the resulting unequal distribution an unfair one. So Cohen does not merely motivate his position with these cases in a way that might provoke an intuitive stalemate against the adversary who embraces the fairness of inequality, but rather supports his move with a further argument: namely, if you judge something unfair because unequal, what is your story as to why some inequalities are fair and not others?
Now, there is a seemingly obvious response to Cohen’s argument here, namely that the criteria by which the initial distribution is judged fair may not be, strictly, that there is no inequality but that there is no unchosen inequality. So, in the Sarah-Jane case, if unfairness pertains to involuntary disadvantage specifically, rather than disadvantage per se, then that criterion of fairness judges both the initial distribution between the Sarah-Jane group members fair and the subsequent and unequal distribution fair, on the grounds that neither entails any involuntary disadvantage. Whilst sensible, and, as I will later suggest, correct, this response doesn’t so much offer a response to the Cohen position so much as it simply asserts what Cohen denies. After all, what are the grounds for saying that unchosen inequality is unfair whereas relevantly chosen inequality is not? We cannot appeal to the idea that choice legitimates otherwise unfair inequality for the obvious reason that Cohen’s position is precisely that such choices thereby legitimate but do not render fair those chosen inequalities. So to claim, without further explanation, that chosen inequalities are fair would appear to simply stipulate a criterion for fairness at the cost of failing to engage Cohen’s claim that choices only legitimate inequalities.
At this juncture an interlocutor might appeal to the notion of ‘moral arbitrariness’ to defend the position that the criterion for unfairness is unchosen inequality rather than inequality per se. Whereas unchosen inequalities are morally arbitrary in the sense that there is no justifying reason as to why they should obtain, chosen inequalities lack that quality of moral arbitrariness in the sense that there is a reason (choice) that justifies their obtaining. Again, I think this view is the right one, but it doesn’t seem that it can, alone, form the basis of a successful response to the Cohen view. For even if this appeal to moral arbitrariness can successfully avoid the earlier worry that it simply asserts what Cohen denies, it seems problematic for other reasons. Primarily, there are a wide-range of reasons that might justify inequalities without thereby wholly eliminating the respect in which they are morally arbitrary (and, in that respect, unfair). For instance, it might be the case that some inequalities are to everyone’s advantage in the sense that they enhance economic efficiency in ways that make everyone better off. That might well justify the inequalities in question but it will not, for most advocates of responsibility-sensitive egalitarianism, necessarily mean that those inequalities are through and through fair ones. To frame this in terms of the language of moral arbitrariness, one might say that all-things-considered the inequalities are not morally arbitrary, in the sense that there is a reason that justifies their obtaining, however this does not itself necessarily extinguish the sense in which they are, in one particular respect, morally arbitrary. So the idea that there is some reason that justifies inequality seems too capacious a criterion for inequalities being fair specifically. As will become clear, this very difficulty is precisely the problem that afflicts certain responsibility-sensitive egalitarian principles of stakes. Such accounts appeal to reasons that might justify the inequality on the basis of these further values to which they appeal but do not render fair in the relevant sense.