priority of fair equality of opportunity over the difference principle

Someone may object:
"What you say here is absurd! It makes no sense to say "A society that does not violate the principle of fair equality of opportunity can hardly manage to discriminate people in relation to their skin color (that is, treat skin color as a relevant qualification for a social position) if it is also, at the same time, a society that satisfies the difference principle", as you do. For the principle of fair equality of opportunity already rules out the possibility of discrimination on the basis of skin color and one does not need to consider distributive consequences at all. In Rawls, fair equality of opportunity has lexical priority over the difference principle."

This appears correct. But there are some logical difficulties. Rawls's explanation of the principle is the following:

Those with similar abilities and skills should have similar life chances. More specifically, assuming that there is a distribution of natural assets, those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system.

The problem is how one defines what counts as an ability or as a skill in the first place. According to Rawls, the fact that someone has a valuable talent or ability is not a mere "natural" fact: whether something counts as a talent depends from what a society values; and what a society values depends from the kind of institutions that govern it. In a society that is governed by just institution different things would count as talents, than in a society governed by unjust ones.

It might be claimed that it makes no sense to call skin color an "ability" or a "skill". But what counts as "ability" or "skill" depends very much on the sort of interactions people have. Consider beauty for example: is beauty a "skill"? Well, for certain jobs it certainly counts as one. Now consider a society of white racists where black people are a tiny minority: people in this society might consider blacks not to be beautiful. In a racist society there might be jobs for which beauty is a skill, and since black people are considered ugly (that is, are ugly, relative to that society), black people will not be qualified for positions where beauty is considered a qualification. In this society, black and white people do not have equal chances to occupy the same social positions. This is certainly a bad thing. But is it a violation of fair equality of opportunity, as Rawls defines it? Can one move an objection against it solely by considering the principle of fair equality of opportunity?

If one takes into account imaginary psychologies, the point becomes even clearer. Imagine creatures for whom a strong reactions of fear and disgust against people with a different color of skin is hard-wired, so that it is always more difficult for them to cooperate with a person of a different skin. It follows that in a firm where black people are the majority, the hiring of a white person would be ceteribus paribus less productive than the hiring of a black one. If a majority of black people works in the the majority of firms (just because they are the majority of the population, let us suppose), then a white person would have less chances than a black person to occupy the same social position. In such a society, would this fact constitute a violation of fair equality of opportunity? Would it not be more appropriate to say, for that society, that blackness counts as a skill or as an ability, namely, the ability to cooperate without creating disgust or fear?

The point can be made in a different way: Rawls says that the principle of fair equality of opportunity has lexical priority over the difference principle. What does this means? By lexical priority is usually meant that the principle that has lexical priority has to be satisfied before the other one. Now consider the principle of fair equality of opportunity: what can it mean that it must be satisfied before the difference principle? Perhaps it means that institutions should be designed, first, in such a way that those with similar talents and willingness to apply them will have an equal chance to occupy the same (or similar) social positions; and that one must make sure that this is the case before one considers whether the basic institutional structure of society satisfies the difference principle. The problem with this interpretation is that, in a Rawlsian perspective, it is impossible to say who are people that have similar talents before institutions are in place so that freely interacting people bounded by these institutions can define what they can value as talents in the first place. This is because whether a characteristic counts as a talent or not depends from the decisions taken freely by people legitimately interacting within the boundaries set by just institutions. So there is no way to identify talents prior to the design of a just basic structure. And a just basic structure is one that, among other things, satisfies the difference principle. So, what can count as a talent or as an ability in a JUST society is determined also by the overall shape of its institutions: a talent or an ability in a just society is whatever people end up valuing as a talent or as an ability if they live in a society where individual freedoms are respected, where people with equal talents have equal chances to obtain similar positions, and where cooperation works to the advantage of the worst off members of society (the difference principle).

Since one cannot know what is a talent or an ability before one has designed institutions, the satisfaction of the principle of fair equality of opportunity must be understood as the satisfaction of a formal condition: for anything that counts as an ability or a talent in a given society, people who are born with the same ability or talent and manifest the same willingness to use them should have equal chance to obtain similar social positions, no matter their starting place in society. What I am pointing out is that it is impossible to determine whether the principle of fair equality of opportunity is satisfied by a given institutional arrangement independently from considering whether the difference principle is satisfied.

Let us come back to discrimination against black people. I made an example of a society where black people are considered ugly. In this society it is not clear that a black man's reduced opportunity to occupy places where beautiful people are sought constitutes a violation of fair equality of opportunity. However, it is quite unlikely that a just society can ever be like this. The color of the skin is not correlated to other trait that lead to high marginal productivity, such as organization skills, fantasy, determination, intelligence etc. A productive society is one where people who have such skills occupy places of responsibility and power. It must be a society that treats organization skills, intelligence, determination, etc as talents and abilities. In a regime of fair equality of opportunity, if the population is equally divided into black and whites, this society will have as many black as white people in positions of responsibility and power (since fair equality guarantees that people that have the same talents and will will occupy similar positions, and skin color is not correlated to these talents and will). In such a society it is very psychologically unlikely that people can develop the racist attitudes that bring them to find black people ugly.

What the example shows is that we can discover violations of fair equality of opportunity only after what counts as a talent is defined. But what counts as a talent in a society depends from what will be treated as a valid qualification for a place of responsibility and power in a society where equal liberties and both fair equality of opportunity and the difference people are respected. Only certain combinations of attitudes towards what counts as a talent or as an ability are compatible with all these conditions simultaneously. This ensures for example that discrimination on the basis of skin color will never be legitimate in a just society.

Does that mean that the principle of fair equality of opportunity cannot be lexically prior to the difference principle? I do not agree. I believe that the lexical priority of the principle of fair equality of opportunity over the difference principle must be understood as the priority of a formal "side-constrain". What it tells us is that among all the basic structures of society that satisfy the difference principle (and the equal liberties) the only legitimate ones are those where people that have similar talents (whatever talents are, in those society) have the same chances to occupy similar positions. If people of equal talents and will do not have the same chances of getting to similar positions, despite the class in which they are born and develop until the age of reasons, than that society is unjust, no matter whether cooperation goes to the advantage of the worst off individuals. Notice that to test whether this condition is satisfied one begins by checking whether cooperation satisfies the difference principle (and the equal freedoms) and then rules out as illegitimate all those societies where people that are similar in what counts as a talent or as a qualification in those societies do not have equal chances to occupy similar positions. This is the sense in which fair equality of opportunity has lexical priority.

Rawls and talents: third reflection

The third reflection concerns whether a just society (just, that is, according to Justice as Fairness) can be a society in which disabled people, or better people with certain deviations from standard human functioning can all be among the worst off (in terms of expectations of primary goods).


Consider deviations from standard human functioning such as deafness or a particularly short height (notice that such deviations do not impair a person's capacity human functioning necessariy, or at least it would be controversial to say so). Let us imagine a society that treats a good hear or tallness as qualifications for many jobs, systematically. (It should not be a society so difficult from ours.) In other words, it would discriminate against short and deaf people (in the morally neutral sense of "discriminate", meaning "distinguish from the rest and reject", not "illegitimately or immorally distinguish from the rest and reject"). This society may:
1. fulfill the clause of fair equality of opportunity: people with similar talents/abilities and willingness to use them would have similar life chances. In a society characterized by the total lack of attention for the special needs deriving from deviations from standard human functioning, deaf and short people will lack an important talent or ability (for that society) and all end up with little life opportunities; [remember that Rawlsian talents are society-relative]
2. contain institutions that are not improvable from the standpoint of the difference principle: it might be that no change in its institutions can reduce inequality without worsening the position of the worst off members of society, measured in terms of income and wealth.

Notice the opposition with the case of racial discrimination. A society that does not violate the principle of fair equality of opportunity can hardly manage to discriminate people in relation to their skin color (that is, treat skin color as a relevant qualification for a social position) if it is also, at the same time, a society that satisfies the difference principle. For, as far as our knowledge of production and exchange tells us, it might be possible to either reduce inequality or to raise the life-prospects of the worst off members by simply allowing people with the usual productive talents (productivity, organization skill, fantasy, will, etc) discriminated because of their skin color to take position where they "fit", according to their marginal productivity. To put it in another way, a productive society must select people according to qualities connected to marginal product, and skin color is not one of those: hence skin color cannot be treated systematically as a qualification for a job, if a society wants to be productive. Since fair equality of opportunity is in place, and this forbids the arbitrary exclusions of people meeting (what in a given social arrangement counts as) the relevant qualifications for position (whatever these happen to be, in a society), a just society cannot simply afford treating skin color as a qualification. The same reasoning cannot probably be done for a property such as deafness and shortness. A society can probably systematically discriminate people that have such traits, place them in the least rewarding social roles, and justify this via increased productivity to the very people it discriminate against, as there could be no way to reduce this discrimination without worsening deaf and short people's expectations of wealth and income.


Two conclusion follow:
A. being not-deaf and being not-short may both qualify as Rawlsian talents
B. a society in which the worst off members of society are all deaf and short might be just according to Rawls's criteria.

The only way from escaping this conclusion, it might seem, is to introduce the social basis of self-respect in the index we use to measure who is the worst off in society. Self-respect is indeed a primary good according to Rawls, but Rawls uses only income and wealth to evaluate social positions. And for good reasons: it is very difficult to measure trade-offs between a good such as self-respect and goods such as income and wealth. So the way out of the difficulty seems very difficult one to take.

the dilemma of political philosophy

It just occurred to me by reading discussions regarding distributive justice and luck-egalitarianism, that a big source of problems for political philosophy is that devising rules for the organization of political societies requires to regard human beings in two different perspectives.

Think about Rawls' argument against equality and for the difference principle (which has been famously attacked by G. Cohen). Rawls argues that differences in income are required to make people willing to work more. They are treated as incentives, and when the effect of the existence of incentives on production goes to the advantage of the worst off class in society (which might happen through a suitably revised redistribution scheme) income differences are justified.

Cohen's famous remark is that people are responsible for their choices, and therefore they don't have to expect an incentive. People should work more for moral reasons.

Now it is striking that Rawls and Cohen place human beings in two radically different perspectives. When Rawls thinks of incentives he treats human psychology as a given. One might express this by saying that his view of people's psychology is (in that respect) instrumental. The incentive argument treats individuals as means not as ends, in so far as they are provided incentives in order to elicit a behavior which will be used for a goal - the good of the worst off class in society - which is not their goal in that behavior. And why can we say that it is not their goal? Because if the good of the worst off class in society were the goal for which they were doing the extra hours of work, they would not need an incentive to do that in the first place. But what is most important is that here Rawls is looking at social realities as formed by individuals regarded in a "third-person" perspective, as if they are natural objects, whose behavior is (partly) explained by certain natural (psychological) laws.

In Cohen's reply, on the contrary, human beings are regarded as free wills. Cohen's expects people to work extra hours for an egalitarian ethos. Cohens thus treats people as free will, as agents which are responsible for the choices they make and the reasons they have.

So maybe this indicates why political philosophy is so difficult and there are so many different schools, methodologies, and ways to understand and explaining them. Because political philosophy wants to address us simultaneously as moral agents and as agents who are victims of their own psychology. It has to do the former if it wants to be taken seriously at the normative level (the normative level requires criticism of existing customs and moral psychology), and it has to do the latter if its prescriptions want to apply to the social world (which is, after all, made by humans in flesh and bones, not by pure rational, noumenal actors).