The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Preface
• The Reason of Rules
• 1.: The Constitutional Imperative
• I.: Introduction
• II.: Reasons For Rules
• III.: Rules of Games
• IV.: Rules of the Road
• V.: Rules of the Market Order
• VI.: Rules of Political Order
• VII.: The Importance of Rules
• 2.: The Contractarian Vision
• I.: Introduction
• II.: Noncontractarian Constitutionalism
• III.: Individuals As Sources of Value
• IV.: Contract and Exchange
• V.: Politics In the Exchange Perspective
• VI.: Unanimity As the Contractual Ideal
• VII.: Agreement On Rules and the Veils of Ignorance and Uncertainty
• VIII.: Conclusions
• 3.: The Myth of Benevolence *
• I.: Introduction
• II.: Private Good and Public Good
• III.: Science, Truth, and Politics
• IV.: The Authoritarian Imperative
• V.: Majoritarian Democracy In the Noncontractarian Paradigm
• VI.: The Aim of Politics
• 4.: Modeling the Individual For Constitutional Analysis
• I.: Introduction
• II.: Homo Economicus In Politics: the Argument For Symmetry
• III.: Science and the Empiricist Defense
• IV.: A Methodological Defense of the Differential Interest Model of Behavior
• V.: Social Evaluation and Quasi-risk Aversion
• VI.: Gresham’s Law In Politics
• VII.: Summary
• 5.: Time, Temptation, and the Constrained Future *
• Preface
• Part 1.: Individual Private Choice
• I.: Introduction
• II.: The Ultimate Z ’s
• III.: Preferences For Preferences
• IV.: Past, Present, and Future
• Part 2.: Individual Public Choice
• I.: Introduction
• II.: Society With a History
• III.: Temporal Interdependence
• IV.: An Illustration
• V.: Moral Rules And/or Constitutional Commitment
• 6.: Politics Without Rules, I: Time and Nonconstrained Collective Action
• I.: Introduction
• II.: The Social Discount Rate
• III.: The High-tax Trap
• IV.: The Inflation Trap
• V.: The Public-debt Trap
• VI.: Other Examples
• VII.: Conclusions
• 7.: Rules and Justice
• I.: Introduction
• II.: Just Conduct and the Notion of Desert
• III.: Justice and Promise Keeping
• IV.: Justice Among Rules
• V.: Just Rules, Agreed-on Rules, and Just Conduct
• VI.: Conclusions
• 8.: Politics Without Rules, II: Distributive Justice and Distributive Politics
• I.: Introduction
• II.: Distributive Justice: the Conventional View
• III.: The Constitutional Perspective and Institutional Incidence
• IV.: The Incidence of Unrestricted Majoritarianism
• V.: Tax Rules and Distribution Under Majority Rule
• VI.: Direct Constitutionalism and Distributive Justice
• VII.: Summary
• 9.: Is Constitutional Revolution Possible In Democracy?
• I.: Introduction
• II.: Pareto-superior Change and Wicksellian Unanimity
• III.: Distributional Limits and Prospective Rules
• IV.: Status Quo Entitlements and Distributional Envy
• V.: Constitutional Change and Free Riders
• VI.: The Role of Norms
• VII.: Toward a Civic Religion

II.

Just Conduct and the Notion of Desert

What does just conduct entail? A common response to this question is that justice consists in persons’ being given their “due”: It is just that each receives whatever he deserves. At first sight, this response seems to beg all the relevant questions; to say that justice is a matter of persons’ being given their deserts can be meaningful only to the extent that their deserts can be independently determined. What exactly, one may ask, does desert entail? How does it arise?

To pose such questions is, however, to begin inquiry in the wrong place—with the most difficult and most general aspects of the problem. Let us begin, instead, with the opposite end of the issue—namely, with cases of manifest injustice in which persons are treated in ways they do not deserve. An obvious example is that of a person punished for a crime he clearly did not commit; in this case, the punishment is deemed “unjust” because the person did not deserve to be punished. Now consider a running race in which the judges, for reasons of pure caprice, decided to award the first prize to the runner who came in fourth. We would say that the runner did not deserve the prize, whereas the fastest runner did. In the absence of any action by the other runners that would lead to their disqualification, the runner who finished the race first could be said to deserve the first prize; any allocation of prizes inconsistent with this would be unjust. The injustice would remain, whether the judges’ decision to reallocate the prize was based on mere caprice or on a systematic preference for some irrelevant characteristic of the participants (such as beauty or racial origin).

What seems characteristic of all such cases is that the injustice springs from a violation of rules—rules that are legitimately expected to be applied by participants or affected parties. Such rules isolate certain considerations that are relevant to the outcome of the event and to the determination of rewards; such rules isolate other considerations that are either explicitly or presumptively irrelevant.

The concept of “desert” is violated when an irrelevant consideration is brought into the reckoning (for example, the plaintiff’s preparedness to have sexual relations with the judge or the color of the runner’s skin) or, no less important, when a relevant consideration is ignored (for example, who actually crossed the finish line first).

There is then a connection between the notion of justice and the existence of prevailing rules. The mere presence of rules is sufficient to establish the relevance of desert, and hence the possibility of just and unjust conduct by participants.

What seems crucial here is the legitimacy of the participants’ expectations that the rules will be followed, whether those expectations are related to the behavior of officials and administrators within the system or to that of other participants. If these expectations truly are legitimate, then individuals who base their conduct on them do not deserve to have them disappointed. The basis of this argument is the observation that rules provide information as to how others, on whose actions one’s well-being depends, will act. One commits oneself to particular actions on the basis of one’s understanding of what others may or may not do. In doing so, one renders oneself vulnerable if others do not behave in the required way, and one will not deserve to be harmed, provided that one’s expectations about others’ conduct are legitimate. The crucial question, then, is, What makes expectations “legitimate”? We shall turn to this matter in the next section.

At this point, we should note simply that when rules do give rise to legitimate expectations, questions of justice necessarily obtrude. In this sense, rules imply the relevance of justice; and just conduct is, at least presumptively, conduct obedient to prevailing rules.

One implication of this argument is worth noting. Suppose, as we argued in Chapter 1, that rules have value because they provide information to each actor about the behavior of others and because they thereby allow each actor to pursue his goals in the light of reasonable expectations about what others will do. On this basis, if rules are administered unjustly or if individuals do not behave in accordance with rules (that is, if individuals behave unjustly in the sense outlined earlier), then rules no longer provide this information. Rules cease to accomplish that function for which they are valued. This argument provides an instrumental defense of justice. The ancient admonition, Let justice be done though the heavens fall, can be construed in this context as the demand that the rules be adhered to, come what may. Justice is valued because it involves independently valued adherence to rules. This rule-following interpretation of justice is quite different from the notion that particular rules are valued because they meet external standards of justice.