Gastón de los Reyes, Jr. WORKING PAPER draft of 8.2012

So, to conclude, we say: the ancients asked about the most rational way to true happiness, or the highest good, and they inquired about how virtuous conduct and the virtues as aspects of character—the virtues of courage and temperance, wisdom and justice, which are themselves good—are related to that highest good, whether as means, or as constituents, or both. Whereas the moderns asked primarily, or at least in the first instance, about what they saw as authoritative prescriptions of right reason, and the rights, duties, and obligations to which these prescriptions of reason gave rise. Only afterward did their attention turn to the goods these prescriptions permitted us to pursue and to cherish.

Now, to suppose that there is this difference between ancient and modern moral philosophy is not necessarily to suppose that it is deep. Indeed, this difference may be not deep at all but simply a matter of the vocabulary used to articulate and to order the moral domain. What determined this vocabulary may have been a matter of historical accident, with further examination showing that the two families of concepts expressed by these vocabularies are equivalent in the sense that whatever moral ideas we can express in one family, we can also express in the other, even if not as naturally.1

Natural and Political Goodness in the Virtue of Civility

Over the arc of her career, Philippa Foot moved beyond her rejection of Kantian

categorical imperatives2 to embrace “Aristotelian necessities.” These necessities are

described by Elizabeth Anscombe as “that which is necessary because and in so far as

good hangs on it.”3 This Aristotelian bedrock anchors Foot’s account of the moral virtues

in something that resides in society and nature, not solely, as in her early work, in the

hypothetical imperatives dictated by commitments actually held by a person.

Aristotle calls us animals “whose nature it is to live in a polis,”4 and this social

human nature is the ultimate source of value in Foot’s ethics. In her final book, Foot

articulates this perspective with appeal to the consonance between the way humans need

1 John Rawls, LECTURES ON THE HISTORY OF MORAL PHILOSOPHY at 2. 2 Morality as a System of Hypothetical Imperatives, in VIRTUES AND VICES (1978) (hereinafter “Hypothetical Imperatives”). 3 NATURAL GOODNESS (hereinafter “NG”) at 15 (citing Anscombe, On Promising and its Justice, COLLECTED PHILOSOPHICAL PAPERS, iii. 15, 18-19). 4 Aristotle, I.1253a2.

2

moral virtue and the way animals and plants need whatever traits constitute their “natural

goodness.” Wolves need to hunt in packs or else they won’t catch prey and feed, and

trees need to grow up high or else they can’t transform sunlight into chemical energy.

Among the moral virtues we need, justice takes center stage in Foot’s account. Justice is

peculiarly essential to social living because of “the facts about human life that make it

necessary for human beings to be able to bind each other to action through institutions

like promising, such as that there are so few other ways in which one person can reliably

get another to do what he wants.”5

The curious thing about Natural Goodness as an account of justice is that political

life registers not even a murmur.6 Foot’s moral virtues do play a constitutional function

in society, but she resorts only to civil society for illustration. Justice is glimpsed entirely

through private relations, as if there were no legal regulation (or lack of regulation) or

political ordering of any other kind that mattered. This effectively stakes out Foot’s

position to be that (i) we need justice as a corrective if we are to achieve virtue in social

dealings (“How could we get on without justice?”7) but (ii) this conclusion does not have

the state of political life as a premise or qualification. The problem is that the virtue of

justice in political society is left completely out of view, so much so that it calls into

question the plausibility of her civil society account of justice.

This lacuna presents the puzzle whether Foot’s virtue of justice is the same indeed

or only in name as the virtue of justice at the heart of John Rawls’s account of stable

political life. It does not seem far-fetched to think that Rawls’s virtue of justice follows

5 This is a summary of Anscombe’s view. NG at 15. 6 Cf. Andrea Sangiovanni, Justice and the Priority of Politics to Morality, 16 Journal of Political Philosophy 137, 137 (2008) (“It is uncontroversial that the limits imposed by existing institutions and practices are relevant in determining how best to implement a particular conception of justice.”). 7 NG at 32.

3

from a kind of Aristotelian necessity8: citizens’ just political institutions will not endure

for long unless those citizens personally and collectively bring the virtue of justice to

civic life. But the ground of that necessity would seem to be the historically determinate

political institutions chosen in a particular society pursuant to the two principles of justice

adopted in the original position9 rather than, as in Foot’s account, an ahistorical notion of

social human nature and cooperation.10

Compare Rosalind Hursthouse’s reading of Hume and Anscombe, according to

which Rawls’s approach

gets things the wrong way round. The logically prior concept [for Hume and Anscombe] is that of a properly functioning society; justice is then specified as the virtue or excellence of such a society, and the laws of justice as those which are in place in such a society; and rights come last, as those things which such laws establish as mine and thine (and ours and theirs).11

Hursthouse may be right, but what I want to emphasize here is that this would not

diminish the structural parallelism between Foot’s and Rawls’s accounts. It is not so

much that Rawls and Foot conceive of justice backwards from each other as that Rawls

places political institutions in between moral virtue and the social human nature that is its

ground for Foot. In metaphorical terms, one can say that in A Theory of Justice political

institutions seem to literally eclipse the apolitical sense of social human nature that is

Foot’s guide to the virtue of justice. A reasonable hypothesis thus might be that Foot’s

virtue of civil justice (as I will call it sometimes) is meaningfully but merely analogous to

Rawls’s virtue of justice which, it seems, draws its excellence, not by direct appeal to

8 See TJ at 294 (in adopting principles of obligation and natural duty for individuals, “the utilitarian principle would lead to an incoherent conception of right. The criteria for institutions and individuals do not fit properly.”). 9 See TJ at 294 (“[T]he choice of principles for individuals is greatly simplified by the fact that the principles for institutions have already been adopted.”). 10 See NG at 16 (referencing the “goods that hang on human cooperation”). 11 Rosalind Hursthouse, After Hume’s Justice, 91 Proceedings of the Aristotelian Society 229, 235 (1991).

4

social nature, but rather from historically-determinate institutions, yielding the virtue of

political justice (as I will call it sometimes). Whereas Foot’s virtue of civil justice reflects

natural goodness, this hypothesis says, Rawls’s virtue of political justice reflects the

political goodness justly constituted out of the original position.

This hypothesis, I will argue, is for the most part right, but due to the part that is

wrong an invaluable and necessary virtue of justice would be ignored or misconstrued. It

is clearly the case that for Rawls the virtue of justice is, at least generally, a function of

just social institutions (and not of social human nature independent of those institutions).

That principles for institutions are chosen first shows the social nature of the virtue of justice, its intimate connection with social practices so often noted by idealists. When Bradley says that the individual is a bare abstraction, he can be interpreted to say, without too much distortion, that a person’s obligations and duties presuppose a moral conception of institutions and therefore that the content of just institutions must be defined before the requirements for individuals can be set out.12

The content of our moral obligations, for Rawls (and Bradley) should build upon just

institutions. But there is an indispensable sliver of Rawls’s virtue of justice that, I will

claim, is cut from an additional cloth. What Rawls calls civility in A Theory of Justice is a

function of political institutions and also, as the name suggests, civil society in a sense

that transcends extant political institutions, reaching as Foot does to ahistorical social

human nature. This part of the virtue of justice reflects political and natural goodness. Its

distinctive grace, I will show, comes from direct appeal to the pre-institutional realm of

the original position.

My goal in this paper is, first of all, to show how Foot’s and Rawls’s accounts of

virtue diverge insomuch as the former is well-described as the virtue of civil justice and

the latter as the virtue of political justice. Though the source of content for these virtues 12 TJ at 110.

5

differs (supra-institutional human cooperation versus particular just political institutions),

Foot’s account of Aristotelian necessities provides an insightful perspective as to why

parties to the original position must choose the principles for individuals that they do.

Conversely, Rawls’s concept of the “sense of justice,” as I will describe, nicely

encapsulates Foot’s remarks on the foundation in an individual of the virtue of justice.

The foregoing remarks in this paragraph would be consistent with structurally parallel

accounts that share substance only coincidentally.13 What has not been adequately

appreciated is the vital, substantive overlap in Foot and Rawls’s accounts. In the

terminology that I will propose, this overlap is a part of moral virtue (see the figure at the

end of the paper) that rests on a sense of political justice and a sense of civil justice.

Foot’s neglect of political society leads her to ignore this dimension of justice—though

her framework naturally embraces its virtue and so it may, I argue, be reasonably read to

suggest what Foot would have said about political engagement. On the other hand, the

institutional orientation of A Theory of Justice leaves Rawls’s account of civility

undeveloped and, consequently, overlooked. Drawing upon Aristotle’s treatment of the

congruent virtue of epieikeia,14 my highest aim is to show why this aspect of the virtue of

justice, spanning political and civil justice and fitting in Foot’s and Rawls’s accounts, is

so important for the stability of justice, especially in societies that govern much of the

allocation of primary goods, as ours does, through market-oriented transactions.

I begin in section I with a summary of Foot’s natural goodness account of the

moral virtues. In section II, I present the virtue of justice in Foot’s work, focusing on

13 Cf. 1137a10 (“[P]eople think it takes no wisdom to know the things that are just and unjust, because it is not hard to comprehend what the laws speak of. But these are not the things that are just, except coincidentally.”) (emphasis added). 14 See infra note 97.

6

Natural Goodness. I analyze the structure of this virtue and demonstrate how it is limited

by its ahistorical innocence of political institutions, being rooted entirely in civil society.

In section III, I begin by accounting for Rawls’s treatment of his related concepts of the

virtue of justice and the sense of justice, relying on Foot as an interpretive guide. I show

that over much of the range of Rawls’s virtue of justice political institutions are properly

seen as the bedrock for the Aristotelian necessities that supply content for the virtue of

justice. For this reason, this range of Rawls’s virtue is well characterized as the virtue of

political justice.

In section IV, I introduce the constitutional limitations of lawmaking, according

to Aristotle and Rawls, which create a need for the virtues that they call epieikeia and

civility, respectively. I provide brief accounts of both virtues. In section V, I engage the

problem of stability presented by markets, discussing a labor market problem posed by

Seana Shiffrin. I demonstrate how civility, spanning the sense of civil justice and the

sense of political justice, enables citizens to retain a vibrant sense of justice even as the

market appears to reify critical allocative decisions. In section VI, I conclude.

I. Apolitical Natural Goodness in Foot

At first glance, it seems odd to build an account of moral virtue, as Foot does,

upon the life circumstances of animals and plants,15 neither of which have any need for

moral virtues. Foot does so based on her “general thesis . . . that moral judgment of

human actions and dispositions is one example of a genre of evaluation itself

characterized by the fact that its objects are living things . . . .”16 The analogy Foot draws

among the forms of life must be appreciated for its breadth and for its limitations, but

15 Her unpublished, but widely read, Romanell lecture began with the remark that, “In moral philosophy, it is useful, I believe, to think about plants.” Rosalind Hursthouse, ON VIRTUE ETHICS at 196 (1999). 16 NG at 4.

7

first of all for its structural consequences. Recanting from her formerly Humean view

that “reasons had to be based on an agent’s desires,”17 Foot, in Natural Goodness,

proceeds to explain the virtues, not from the “inside out”—starting from the desires—but

from the “outside in”—starting from the needs of humans as living beings.18

As already noted, what makes the keeping of promises a virtue for Foot are “the

facts about human life that make it necessary for human beings to be able to bind each

other to action through institutions like promising, such as that there are so few other

ways in which one person can reliably get another to do what he wants.”19 It is this same

sense of Aristotelian necessity that Foot regards as constitutive of other living beings’

good, whether in wolves’ need to hunt in a pack or in trees’ need to grow up high to get

light. All of these Aristotelian necessities are capable of grounding, according to Foot,

the sense in which a particular specimen—human, animal or plant—displays natural

goodness or is, instead, defective for want of the trait or virtue in question.20

An important disanalogy in the account, though, is that humans—unlike

animals—are naturally defective. Our unembellished instincts are not nearly up to the 17 NG at 10. 18 The distinction between “inside-out” and “outside-in” conceptions is Michael Slote’s. See Michael Slote, Virtue Ethics and Democratic Values, 24 Journal of Social Philosophy 1, 5 (1993). I am taking the liberty of broadening Slote’s usage somewhat. In this paper, he distinguishes accounts that build a political conception from the individual virtues (like he seeks to do in his article) from accounts that yield individual virtues from a political conception (as Rawls does). I assume, however, that Foot would have subscribed to an “inside out” account in her early work and that, despite her failure to address political institutions, her final account commits her, as I will further argue, to an “outside in” conception (at least to the extent I succeed in showing that some category of Aristotelian necessities emerge from the engagement with political institutions). 19 NG at 15 (emphasis added). 20 So long as we are concerned with the specimen as a living thing, and not as, e.g., sustenance for another living thing or firewood, and this is possible since “features of plants and animals have what one might call an ‘autonomous’, ‘intrinsic’, or as I shall say ‘natural’ goodness and defect that may have nothing to do with the needs and wants of the members of any other species of living thing, and in this they are notably different from what is found elsewhere in other things in the world outside, as for instance rivers or storms.” NG at 26. The much-emphasized distinction is between attributive and predicative adjectives, first drawn by Peter Geach in GOOD AND EVIL. Whereas the adjective “red” means the same thing whether describing a shirt or blood, “good” has a different meaning depending on the sense of the noun it is modifying. Its being cut is bad for the living plant, for example, but good for the plant as ornament.

8

task of social living. That is why we need the moral virtues as “corrective[s], each one

standing in some point at which there is some temptation to be resisted or deficiency of

motivation to be made good.”21 Animals are not born needing such correctives and,

accordingly, have no Aristotelian necessity for anything like the moral virtues. But we

do, and that’s why it seems appropriate to say we “need virtues as bees need stings.”22

There is a second and related disanalogy between humans and animals: we need

social (i.e., socially constructed) institutions—language, government and everything in

between—in ways that even social animals like bees and wolves do not. Karl Marx relies

on this point to address why we have history while animals do not:23 It is because humans

“must produce their life, and because they must produce it moreover in a certain way:

this is determined by their physical organization, their consciousness is determined in just

the same way.”24 Whereas animals can, in a suitable enough environment,25 get by with

their instincts to organize subsistence and manage their environment, humans require

forms of what Marx calls social “consciousness” to fill the gap between, on the one hand,

existing social organization and productive capabilities and, on the other, our natural

endowments and aspirations.26 In this historical dialectic, the political state of a society,

21 Foot, Virtues and Vices, in VIRTUES AND VICES at 8 (1978). 22 A point that Philippa Foot, citing Peter Geach, stresses in Natural Goodness. 23 See also THE GERMAN IDEOLOGY (in THE MARX-ENGELS READER, Richard Tucker, ed.) at 150 (“Men can be distinguished from animals by consciousness, by religion or anything else you like. They themselves begin to distinguish themselves from animals as soon as they begin to produce their means of subsistence, a step which is conditioned by their physical organisation. By producing their means of subsistence men are indirectly producing their actual material life.”). 24 THE GERMAN IDEOLOGY at 158 (emphasis in the original). 25 A theory about justice, ironically, requires the circumstances be unsuitable enough, with at least moderate scarcity in an environment where all persons in the society “are vulnerable to attack, and all are subject to having their life plans blocked by the united force of others.” TJ at 110. 26 Cf. Michael Thompson, Three Degrees of Natural Goodness at 3 (available at http://www.pitt.edu/~mthompso/) (“But it is one thing to say that human languages rise and fall in the course of human history; it is quite another to say that human language has arisen in the course of human history. The more reasonable view is surely that our human linguistic power is a product not of history

9

with all the institutions it embodies and that are embedded in it, emerges as an

indispensable piece of the natural goodness puzzle for human life.27

Of course, Foot recognizes that human communication and reasoning make us a

distinctive kind of creature.28 Echoing Marx, she observes that “[a]nimals are different

also from us in that to do what they should do—what is needed and is within their

capacity—they do not have to understand what is going on; whereas a human being can

and should understand that, and why, there is reason for, say, keeping a promise or

behaving fairly.”29 The capacity to understand the reason for keeping a promise fills in

for the deficiency of our genetic constitution in this environment of moderate scarcity

where we are so vulnerable to others.30 Naturally, then, it is this capacity (residing, in

Foot’s lexicon, in the will31) that becomes the focal subject of human goodness.

Foot does also acknowledge the vast “diversity in human beings and human

cultures.”32 But she makes no reference to any cultural differences that would matter for

moral virtue.33 And she does not acknowledge that one relevant form of diversity is

proper, but of Darwinian evolution; it is thus a part of our natural history, a feature characteristic of our peculiar life form.”). 27 Not so for anarchists. I assume that, even if not required, some kind of state is consistent with natural goodness for humans. 28 NG at 16. 29 Cf. Thompson at 4 (To have practical reason is to say “[i]t does things ‘because it thinks that P’ where its ‘thinking that P’ falls into a ‘space of reasons.’” 30 TJ at 110. 31 Interestingly, Rawls shows greater affinity to Aristotle than Foot in emphasizing not only the role of the will in virtue, but also those other features of the human psychology that elicit a “tendency,” TJ at 275, 313, to act upon the principles of justice. According to Aristotle, the person with the virtue of epieikeia is “one who by choice and habit does what is epieikēs, and who does not stand on his rights unduly, but is content to receive a smaller share although he has the law on his side.” 1138a1-2 (emphasis added). Foot’s emphasis on the will follows from her primary concern with practical rationality, as opposed to the stability or excellence of the polis. See NG at 12 (“I want to say, baldly, that there is no criterion for practical rationality that is not derived from that of goodness of the will.”). 32 NG at 43. 33 In an interview shortly before she died, Philippa Foot was asked point blank how she deals “with the great disagreements that exist over morality between individuals and between cultures.” Her reply was as follows:

10

among the different kinds of political institutions existing all around the world. Indeed, in

a striking omission, Foot fails to recognize any role for the political state—or any other

historically determinate social institution34—in the definition and ground of natural

goodness, and hence, the moral virtues, including justice.

To be fair, there is an affirmative justification for this omission. Foot is concerned

to give an account of how the moral virtues can hinge on “quite general facts about

human beings.”35 Moreover, she is after a kind of supra-historical conception of moral

virtue. “[F]or all the diversities of human life,” Foot thinks “it is possible to give some

quite general account of human necessities, that is, of what is quite generally needed for

human good, if only by starting from the negative idea of human deprivation.”36 There is

a consistent theme of deprivation, i.e., scarcity and difficulty, everywhere in history.

Foot’s project is to elucidate what we humans need—anywhere and anytime this

deprivation exists—to get on reasonably well with each other. We need the “larynx”37 to

speak; and we need certain fundamental moral virtues—Foot’s project is bounded thus.

The limitation presented for an account of morality is that the complications and

particularities of organized political life threaten to render the virtue of justice, as

What is right and wrong for different societies will often be different. Things will be justifiable in one situation and not in another. . . . [W]hat in a certain community is seen as pollution, or as a demeaning task, obviously determines what is for instance cruel or disrespectful. In that sense, a lot of what’s right and wrong will be relative to different cultures, of course. But that doesn’t mean there isn’t the same underlying basis for right and wrong.

PhilosophyNOW, March-April 2012 (available at http://www.philosophynow.org/issues/41/Philippa_Foot). 34 Foot recognizes the “institution of promising,” see supra note Error! Bookmark not defined., but the suggestion is that this institution is, like Marx says about language, “as old as consciousness.” THE GERMAN IDEOLOGY (available at http://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm). 35 By the same token, Foot observes that “it is only the relative stability of at least the most general features of the different species of living things that makes these propositions possible at all.” NG. 36 NG at 43. 37 Id.

11

accounted for, intractable without additional conceptual architecture sensitive to

institutional historicity. Consider a counterfactual recently posed by Seana Shiffrin:

suppose I initiate an employment search and am offered a number of jobs, one of which best serves the least well off and is adequately satisfying, but another of which is of greater interest to me. Suppose the number and qualitative range are greater than those available to many others competing at that time in the job market.38

How can we even know whether the virtue of justice is or is not prescribed as a corrective

in such a decisional context? And if it is needed, what is it rectifying and what does it aim

to correct to? It is implausible, I submit, to think that the answers to these questions do

not turn upon facts about the institutional organization of political society. One way to

characterize my objective is to elucidate criteria for the excellence with which the just

person of Foot’s account deals with the intersection of political institutions in day-to-day

life. What weight do those institutions get? And why? And how? I go looking for an

answer by juxtaposing Foot’s account of the virtue of justice with Rawls’s eponymous

account in sections II and III, respectively.

II. The Natural Goodness of Justice

Justice is, with temperance, courage and prudence, one of the four ancient

cardinal virtues, but it is unique because “while prudence, courage and temperance are

qualities which benefit the man who has them, justice seems rather to benefit others, and

to work to the disadvantage of the just man himself.”39 In an early paper (Moral Beliefs),

Foot wrestles with the question whether this quality of justice—the other-directedness of

its benefits—disqualifies it as a virtue, taking seriously the challenge from Thrasymychus

38 Shiffrin, Incentives, Motives and Talents (hereinafter “Incentives”) at 135. 39 Moral Beliefs, 59 Proceedings of the Aristotelian Society 83, 99 (1958).

12

in Plato’s Republic.40 Her analysis of this challenge in Moral Beliefs reveals the intuitions

behind her more considered, natural goodness approach.

Is it true, however, to say that justice is not something a man needs in his dealings with his fellows, supposing only that he be strong? Those who think that he can get on perfectly well without being just should be asked to say exactly how such a man is supposed to live. We know that he is to practise injustice whenever the unjust act would bring him advantage; but what is he to say? Does he admit that he does not recognise the rights of other people, or does he pretend? In the first case even those who combine with him will know that on a change of fortune, or a shift of affection, he may turn to plunder them, and he must be as wary of their treachery as they are of his. Presumably the happy unjust man is supposed, as in Book II of the Republic, to be a very cunning liar and actor, combining complete injustice with the appearance of justice: he is prepared to treat others ruthlessly, but pretends that nothing is further from his mind.

If the doubt about justice as a virtue is that it appears not to further one’s own good, then

one should query whether injustice with feigned justice, which by hypothesis does aim at

one’s own good, recommends itself as a virtue. But a virtue must be amenable to

sustained practice over a lifetime, not just in isolated instances. Injustice with feigned

justice fails this test: it is hardly sustainable. Humans are not cut out for the kind of

injustice preached by Thrasymychus; we do much better in fact, even as individuals,

living as justly as we can. In Natural Goodness, Foot simply extends the logic one step

further. It is not only the individual (who cares about her own good) who needs the virtue

of justice, but the society around her that needs individuals generally to live justly. So

instead of hanging the value of justice on one’s own good via a hypothetical imperative,

Foot hangs the value of justice, first and foremost, on society’s need for it. The decisive

rhetorical question is, “How could we get on without justice?”41 Because the answer, she

thinks self-evidently, is “we couldn’t,” the individual who lack this virtue is, in a tangible

social and natural sense, “defective.” 40 Moral Beliefs at 99-102. 41 NG at 16.

13

a. The Virtue of the Virtue of Justice

But what does it mean not to be defective with respect to justice? This virtue, Foot

says, “is primarily concerned with the following of certain rules of fairness and honest

dealing and with respecting prohibitions on interference with others rather with

attachment to any end.”42 In a paper that argued the limitations of utilitarian ethics, Foot

reflects on the durability of justice:

In our common moral code we find numerous examples of limitations which justice places on the pursuit of welfare. In the first place there are principles of distributive justice which forbid, on grounds of fairness, the kind of ‘doing good’ which increases the wealth of rich people at the cost of misery to the poor. Secondly, rules such as truth telling are not to be broken wherever and whenever welfare would thereby be increased. Thirdly, considerations about rights, both positive and negative, limit the action which can be taken for the sake of welfare.43

In Natural Goodness, Foot reinforces these paradigms for thinking about justice,

especially notions of fair and honest dealing. The just person, Foot says, “pay[s] debts,

keep[s] promises, [and] refrain[s] from taking the goods of others.”44

But though these generalizations in some way signal the scope and activities of

justice—fair-dealing, promise-keeping, honesty, respect for others’ goods, sensitivity to

relative deprivation, etc.—they cannot provide a litmus test for justice (or injustice). A

hallmark of a virtue account of morality is its sensitivity to the panoply of circumstances

known to the individual.45

42 Utilitarianism and the Virtues, 94 Mind 196, 205 (1985). 43 Utilitarianism and the Virtues at 205. 44 NG at 103. 45 “It may of course be questioned whether such analogies can really help us to understand what justice is 'in the soul'. After all, we can hardly think that people pay debts, keep promises, or refrain from taking the goods of others out of love! Of course not. Hume, who so much stressed the part played by sympathy in the moral life, had to admit the difficulty of cases like that of paying a debt to a profligate creditor. Nevertheless, it is one of the advantages of the recent interest in virtue theories of ethics that moral philosophers are thinking about virtues rather than bare acts. For Aristotle was surely right to distinguish doing what the just man does from doing it as the just man does it.” NG at 52.

14

What, for instance, distinguishes a just person from one who is unjust? The fact that he keeps his contracts? That cannot be right, because circumstances may make it impossible for him to do so. Nor is it that he saves life rather than kills innocent people, for by blameless mishap he may kill rather than save. 'Of course,' someone will say at this point. 'it is the just person's intention, not what he actually brings about, that counts.' But why not say, then, that it is the distinguishing characteristic of the just that for them certain considerations count as reasons for action, and as reasons of a given weight?46

Because the display of virtue depends on balancing multiple considerations, having a

virtue is not like knowing an algorithm but is something more fine, which, as Aristotle

says, requires wisdom,47 caring about the right things in the right proportion in making a

decision. Foot represents this capability in terms of the considerations for action present

in the just person.

Thus the description “just,” as applied to a man or a woman, speaks of how it is with him or her in respect of the acceptance of a certain group of considerations as reasons for action. If justice is a virtue, this is what the virtue of justice rectifies, that is, makes good. It is no part of the goodness that is goodness of the will that someone should be physically strong, should move well, talk well, or see well. But he must act well, in a sense that is given primarily at least by his recognition of the force of particular considerations as reasons for acting: that and the influence that this has on what he does. The just person aims at keeping promises, paying what is owed, and defending those whose rights are being violated, so far as such actions are required by the virtue of justice.48

What makes justice an especially fine virtue, compared to, say, charity,49 is that there are

multiple considerations in the well-proportioned mix that guides the just person.50

It is not difficult to comprehend the idea that justice requires one to consider the

right things. Much more challenging is the mysterious process of modulating these

46 NG at 13. 47 1137a10 (“[P]eople think it takes no wisdom to know the things that are just and unjust, because it is not hard to comprehend what the laws speak of. But these are not the things that are just, except coincidentally.”). 48 NG at 12. 49 With charity, the sole end involved is the good of others. Hypothetical Imperatives at 314. 50 From an Aristotelian point of view, this statement should be taken with a grain of salt. To truly have one virtue means having them all, being a phronimos, and so the problem of modulating considerations is ever present in the balancing of the virtues as against each other.

15

considerations with proper measure. To communicate intuitions for this aspect of virtue,

Foot appeals to the way a parent considers her own good and that of her children, without

seeming contradiction.

A loving parent would often be puzzled if told ‘You should just consider your own good’ if the good of the children were at stake. Naturally there can be consideration of advantages on one side or the other, having to do, for instance, with an interesting job for a parent in one country and better schooling for the children elsewhere. But there is a way in which a loving parent does not really separate his or her good from the good of the children.51

It may “be questioned,” Foot notes, “whether such analogies can really help us to

understand what justice is ‘in the soul’. After all, we can hardly think that people pay

debts, keep promises, or refrain from taking the goods of others out of love!”52 What

model, then, do we have for how the just person comes to show a virtuous handling of

these various considerations? From what do they draw their inspiration, sensibility and

commitment? Foot’s best approximation is to follow through with the parenting analogy

and emphasize love, not of people, but of justice itself.

Aristotle’s stress was mainly on the stability of the principle of true justice; but we might also think of it in terms of the underlying thoughts, feelings, and attitudes of one who recognizes the claim of any human being to a certain kind of respect. Here it is perhaps enough to point out that it makes sense to speak of those who are lovers of justice—as of those who love truth.53

To summarize, for Foot, the virtue of justice consists in acting on the right set of

considerations, notably fairness, honesty and the value of promises, in the right measure,

and it takes a sentimental devotion, which Foot likens to loving justice, to modulate these

considerations virtuously.54

51 NG at 102. 52 NG at 103. 53 NG at 103. 54 This account, we will see below, is remarkably consistent with Rawls’s account of where the virtue of justice comes from in an individual. Rawls, in fact, says that the “virtues are sentiments, that is, related

16

b. Political Society

Natural Goodness says nothing about governments or political institutions. Foot’s

account of the virtue of justice simply does not grapple with the historically determinate

state of the political institutions that give the central considerations about justice their

distinctive fiber and being in any political society. The missing link in the natural

goodness of justice is the place of these institutions, which Foot (without expressly

endorsing the need for political institutions) acknowledges it is in our nature to create.

For there is a ‘natural-history story’ about how human beings achieve this good as there is about how plants and animals achieve theirs. There are truths such as ‘Humans make clothes and build houses’ that are to be compared with ‘Birds grow feathers and build nests’; but also propositions such as ‘Humans establish rules of conduct and recognize rights’. To determine what is goodness and what defect of character, disposition, and choice, we must consider what human good is and how human beings live: in other words, what kind of a living thing a human being is.55

It is true that birds build nests and that humans establish rules of conduct and recognize

rights. The difference is that birds are naturals in their excellence at building nests.

Humans’ record in establishing rules of conduct and recognizing rights is checkered. We

really need the virtue of justice to achieve excellence in these endeavors. Foot seems to

be telling us that a natural goodness account of the moral virtues is incomplete without

understanding the actual circumstances shaping human life. The question is whether she

helps us understand how the virtue of justice rises to its challenge in political society.

families of dispositions and propensities regulated by a higher-order desire, in this case a desire to act from the corresponding moral principles.” TJ at 167. 55 NG at 51.

17

III. The Virtue of Justice in the Stability of a Well-Ordered Society

a. Methodology

To see how (or if) Foot’s account of the virtue of justice can extend to political

society, I propose to begin by looking for congruence and divergence between Foot’s and

Rawls’s accounts, given that Rawls’s account is predicated upon political society. As a

matter of methodology, I should clarify that I have not shown that justice according to

Foot—concerned as it is with promises, fairness and honesty—is not capable of

organizing or relating to political institutions. Rather, I have pointed out that Foot has not

told us anything directly about how justice deals with the special problems presented by

living in a society in the grips of “state” authority and laws backed by institutions of

enforcement. The project here is to see if Rawls can help complete Foot’s account or, in

the alternative, can help illuminate any deficiency with her account.

For analytical purposes, it is helpful to begin in Rawls’s theory with the limit case

in which human nature demands no corrective of this sort at all. In this ideal case, justice

is not one of the moral virtues because it is not an Aristotelian necessity. In Rawls’s view,

absent the conditions of moderate (or greater) scarcity and conflicts of interests among

persons,56 “there would be no occasion for the virtue of justice, just as in the absence of

56 Rawls seems to indicate that both of these conditions are required for justice to be needed. To test the intuition whether the absence of scarcity would obviate the circumstances of justice, consider the Cyclopes:

‘From there, grieving still at heart, we sailed on further along, and reached the country of the lawless outrageous Cyclopes who, putting all their trust in the immortal gods, neither plow with their hands nor plant anything, but all grows for them without seed for planting, without cultivation, wheat and barley and also the grapevines, which yield for them wine of strength, and it is Zeus’ rain that waters it for them. These people have no institutions, no meetings for counsels; rather they make their habitations in caverns hollowed among the peaks of the high mountains, and each one is the law for his own wives and children, and care nothing about the others.

Homer, ODYSSEY, Richmond Lattimore (trans.) at 140 (1991). Notwithstanding the absence of institutions, the Cyclopes do interact with each other from time to time. Assuming conflicts of interest, however petty, does justice have a role then in the Cyclopes realm?

18

threats of injury to life and limb there would be no occasion for physical courage.”57

Social settings that do not meet these idealized conditions feature “the circumstances of

justice” to some degree. Foot takes the circumstances of justice for granted in Natural

Goodness;58 Rawls does the same in A Theory of Justice.

Another polar case in Rawls’s account is the society that has faced up to the

circumstances of justice, enacting the two principles of justice with a set of conforming

institutions. [Justification for methodology should be to generality of Foot’s account, not

to specific need of virtue.] There is a world of possibility in between these two poles, and

that is, arguably, where the virtue of justice is needed most, guiding the establishment of

just institutions where they do not yet exist. In this paper, I do not take up the important

task of extending Foot’s account of justice directly to these cases. That said, three

features of Rawls’s account make my attempt to connect a natural goodness account with

Rawls’s virtue of justice in just or nearly just societies valuable also for less well-ordered

societies. First of all, Rawls recognizes that, with respect to the virtue of justice, a just

society has by no means surpassed the circumstances of justice (unlike the utopian

socialists or Marx’s vision of post-capitalistic communism). To the contrary, the stability

of even a well-ordered society is a contingent proposition, and the repository of hope for

the ongoing justice of the society’s institutions resides crucially in citizens’ own justice.

Second, addressing the problem of stability requires Rawls to introduce the category of “a

57 A Theory of Justice, Revised Edition (1999) (hereinafter “TJ”) at 110. 58 See supra text accompanying note 30. In Virtues and Vices, Foot makes a parallel argument to Rawls’s, in effect nullifying the subjective condition of conflicts of interest: “if people cared about the rights of others as they care about their own rights no virtue of justice would be needed to look after the matter, and rules about such things as contracts and promises would only need to be made public, like the rules of a game that everyone was eager to play.” Id. at 10. Foot and Rawls are both influenced by Hume who, addressing the objective and subjective conditions, said: “Encrease to a sufficient degree the benevolence of men, or the bounty of nature, and you render justice useless, by supplying its place with much nobler virtues, and more valuable blessings.”

19

nearly just society, one that is well-ordered for the most part but in which serious

violations of justice nevertheless do occur.”59 With respect to this scope for violations of

justice, the virtue of justice has work to do of parallel significance, presumably, to the

work before the virtue of justice in more challenged societies. Third, Rawls assumes that

societies may be well-ordered in a variety of ways; “either a private-property economy or

a socialist regime,”60 for example, can satisfy his conception of justice. The significant

divergences between these two models of society suggest that the virtue of justice, to

undergird sustainably just institutions, must be duly tailored to the institutional forms

actually in place.61 For these three reasons, an examination of the role of the virtue of

justice in a well-ordered society promises to bring some generalizable insight into the

imprint of institutional variability and suitability on a natural goodness account of justice.

b. Structure of the Conceptual Account

The justice of citizens is a social imperative, Rawls believes, if the institutions of

a society are to remain just.

the requirement of stability and the criterion of discouraging desires that conflict with the principles of justice put further constraints on institutions. They must be not only just but framed so as to encourage the virtue of justice in those who take part in them.62

This passage’s indication that the virtue of justice is an Aristotelian necessity in respect

of already existing institutions (rather than trans-historical notions of human cooperation)

recapitulates the order in which these concepts take hold in the original position.

That principles for institutions are chosen first shows the social nature of the virtue of justice, its intimate connection with social practices so often noted by idealists. When Bradley says that the individual is a bare abstraction, he can be

59 TJ at 319. 60 TJ at 272. 61 Recall Shiffrin’s example, supra text accompanying note 38. 62 TJ at 231.

20

interpreted to say, without too much distortion, that a person’s obligations and duties presuppose a moral conception of institutions and therefore that the content of just institutions must be defined before the requirements for individuals can be set out.63

As already anticipated, this feature of Rawls’s account suggests that his virtue of justice

concerns political goodness rather than natural goodness. I will challenge this

interpretation in the next section. Even assuming this divergence in their accounts,

however, there is still the question whether what Rawls means by the virtue of justice (so

qualified in terms of political rather than natural goodness) is congruent with Foot’s

account.

As a matter of terminology, Rawls refers to the “virtue of justice” only a few

times throughout A Theory of Justice (all quoted above).64 The term that provides the

theoretical heavy lifting is the “sense of justice.”65 A person with the virtue of justice

displays justice. What this virtuous person has that enables the display of virtue (and thus

what institutions need to foment) is a well-developed sense of justice. This sense of

justice is described by Rawls in terms of a “normally effective desire to comply with

[the] restrictions” set by the “the two principles of justice and the principles of obligation

and natural duty.”66 In more general terms, the sense of justice stands for “an effective

desire to comply with the existing rules and to give one another that to which they are

entitled.”67 These definitions resonate strongly with Foot’s account. Foot explained the

virtue of justice in terms of holding the right considerations in the right proportion but

63 TJ at 110. 64 See supra text accompanying notes 57, 62 and 63. 65 TJ at vii, x, xv, 5, 12, 19, 46, 47, 48, 49, 50, 51, 120, 138, 145, 148, 177, 191, 192, 219, 234, 240, 261, 263, 267, 268, 312, 313, 327, 329, 337, 360, 364, 366, 367, 372, 374, 382, 385, 387, 398, 436, 453, 455, 462, 476, 477, 479, 485, 489, 490, 497, 499, 500, 503, 506, 510, 511, 512, 513, 514, 515, 536, 539, 540, 569, 570, 571, 572, 574, 577, 608, 610. 66 TJ at 128. Accord TJ at 275 (sense of justice is “the desire to act in accordance with the principles that would be chosen in the original position”). 67 TJ at 274-75.

21

gave the fullest picture of how the virtue modulates among these considerations with

appeal to a sentiment: the love of justice. Rawls substitutes the less well-defined

considerations that get play in Foot’s account with their institutionalized counterparts: the

extant principles and rules in place in the society justly constituted, beginning with the

two principles of justice, followed by the principles of obligations and natural duty and

on to their more current and specific institutional manifestations, including positive law.

These principles of justice and rules of right provide the fiber of Rawls’s virtue of justice.

But like Foot, he does not leave the virtue resting on the intellect alone. The linchpin to

his argument for the stability of justice in Part III of A Theory of Justice68 is the

institutional foundation for citizens’ “desire or tendency to act upon the corresponding

principles”69 of justice. Stability presupposes citizens who, in Foot’s terms, love70

justice.71

An advantage to Rawls’s conceptual reliance on the sense of justice rather than

the virtue of justice is working with a concept that lends itself to variable, rather than

binary, treatment.72 Virtue is typically understood as a binary term: one either has a virtue

or one lacks it. This coincides with Aristotle’s definition of virtue as a praiseworthy state

68 See Samuel Freeman, Congruence and the Good of Justice, in THE CAMBRIDGE COMPANION TO RAWLS, Samuel Freeman (ed.) (2003). Whereas the congruence argument is meant to underpin an “assurance . . . that [members of a society] will consistently affirm and act upon this motive [the sense of justice] and regularly observe the requirements of justice,” p. 283, this paper is concerned with the necessity in the relation between the sense of justice and the justice of institutions (with Rawls) and healthy social living (with Foot). The necessity established, the congruence argument is meant to provide reasonable hope, given a set of psychological and institutional assumptions. 69 TJ at 275. See TJ at 420 (discussing use of “older term ‘sentiment’ for permanent ordered families of governing dispositions, such as the sense of justice and the love of mankind”). 70 Or perhaps “desire to love.” 71 Rawls says, more generally, that the “virtues are sentiments, that is, related families of dispositions and propensities regulated by a higher-order desire, in this case a desire to act from the corresponding moral principles.” TJ at 167. 72 See supra note 31.

22

of character.73 This is also why the action in Aristotle’s ethics is in the account of

character, stressing the need for proper habituation.74 Similarly, Rawls “assume[s] that

the sense of justice is acquired gradually by the younger members of society as they grow

up,”75 and his argument for stability starts by addressing the “the acquisition of the

sentiment of justice.”76

c. Summary

It turns out that, as per the working hypothesis set forth in the introduction,

Rawls’s virtue of justice is structured with essentially the same conceptual ingredients as

Foot’s. Both Foot and Rawls give a sentiment-based account of the foundation for justice

in the individual. What gives this sentiment the requisite goodness for virtue is drawing

on the right set of considerations. The difference is that those considerations in Foot’s

natural goodness account have their provenance in general features of social living,

whereas in Rawls’s political goodness account, those considerations follow from the

political institutions, starting with the two principles of justice.

Foot says justice is about following promises and acting fairly and honestly, and

Rawls says justice is about complying with and doing our fair share in just institutions

and following the law.77 Indeed, one is inclined to challenge Rawls the same way I

challenged Foot. Is it plausible to think that the virtue of justice is not made to care about

73 1103a10. One could argue that praiseworthiness is also variable, but I think that misses the point: praiseworthiness is a fine distinction, not one to be diluted with inferior gradations. The phronimos always strikes the target. Coming close to the target does not count as virtue. 74 “[N]one of the virtues of character arises in us by nature” but rather “nature gives us the capacity to acquire them, and completion comes through habituation.” 1103a20. 75 TJ at 405. 76 TJ at 347. 77 TJ at 293, 308.

23

promises and dealing that fall outside the realm of political institutions?78 If the question

means anything, does a person with Rawls’s virtue of justice deal fairly with a person

from another society? And as we saw with Foot, there are two possibilities: either this is

territory that Rawls leaves unexplored in A Theory of Justice or it is not encompassed by

his account. My goal in this paper is not to sort out these questions. Rather, I still want to

understand whether Foot’s just person is well equipped (from society’s point of view) to

engage with political institutions without an additional, political virtue like Rawls’s.

Though the general account of Rawls’s virtue of justice that I have provided has helped

demonstrate the strong analogy and similarity between Foot’s natural goodness account

of civil justice and Rawls’s political goodness account of political justice, we have made

little progress towards the goal.

IV. Approximating Justice Unqualified

One disanalogy between the two accounts, as I have characterized them, is that

only Foot’s seems equipped to induce in the members of a society a love for what

Aristotle calls justice unqualified (also translated as unconditional justice).79 To be clear,

it is not that Foot addresses this challenge in the context of political life where, as I will

now discuss, it becomes distinctively vexing. But whereas Foot provides resources that,

arguably anyway, are conceptually matched to the task, my sketch thus far of Rawls’s

account seems not to be. For what can unconditional justice mean to a just citizen in

78 Cf. Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007). Or to say that the care the virtue of justice gives to non-political dealings is incidental, merely a by-product of having an effective desire to comply with the principles of political justice? Cf. Stephen Jay Gould & Richard C. Lewontin, The spandrels of San Marco and the Panglossian paradigm: a critique of the adaptationist programme, 205 Proc. R. Soc. Lond. 581 (analogizing to the architectural rationale for spandrels and faulting the “adaptationist programme for its failure to distinguish current utility from reasons for origin” of particular genetic traits of species). 79 1137b25. Foot calls this “true justice.” See supra text accompanying note 53.

24

Rawls’s account other than the proper functioning of the extant institutions on their own

terms?

To require an account of the stability of just institutions, as Rawls does, is to

acknowledge extant institutions’ vulnerability to slippage in terms of justice (even

resulting in serious violations of justice), and yet since it is from the institutions

themselves that Rawls’s virtue of political justice, as sketched, is supplied with content,

the buck seems to stop with them. So even though “the constitution is regarded as a just

but imperfect procedure framed as far as the circumstances permit to insure a just

outcome,”80 the just citizen, with “a natural duty to uphold just institutions,” feels bound

“to comply with unjust laws and policies.”81 In seeking a virtue of justice that sustains

stability notwithstanding the finite quality of an institutional framework of justice, Rawls

seems to take on a quixotic mandate. How can a virtue that originates in institutions set

those institutions straight when the virtue takes its lead from those institutions? Is this not

a bootstrapper’s fool’s errand? Consider the criterion for stability: “[o]ne conception of

justice is more stable than another if the sense of justice that it tends to generate is

stronger and more likely to override disruptive inclinations and if the institutions it allows

foster weaker impulses and temptations to act unjustly.”82 In this endeavor, the virtue of

political justice seems hard-pressed to make the difference. In contrast, Foot’s natural

goodness account supplies justice with direction from a non-political realm, defined

normatively by the way social living really should be, where a concept like unqualified

justice make sense that is undiluted by the inherent limitations of institutional logics. The

80 Rawls clarifies that with respect to lawmaking by voting, “[t]here is nothing to the view that what the majority wills is right. . . . Although in given circumstances it is justified that the majority . . . has the constitutional right to make law, this does not imply that the laws enacted are just.” TJ at 313. 81 TJ at 311. 82 TJ at 398.

25

considerations underlying Rawls’s virtue of political justice, as sketched thus far, can be

decomposed neatly into a finite list.83 Defining the excellence of the virtue is not a finite

endeavor in Foot’s rendering of justice. That may represent a weakness in one sense,84

but at least her rendering does not have an Achilles heel for confusing for justice itself the

“disruptive inclinations” that emanate naturally from artificial institutions.

a. The Circumstances of Epieikeia and Civility

Now let me retreat from my simplification of Rawls’s account of the virtue of

justice. Aristotle sees as an essential ingredient in justice a virtue that better approximates

justice itself, i.e., unqualified justice, than can a society’s political institutions and laws,

with their disruptive inclinations. Notwithstanding the account given in the prior section,

I will now make the case that Rawls does as well. Just like Aristotle’s virtue of justice,

Rawls’s virtue of justice comprises a suite of considerations that can be thought of as

nested approximations towards justice unqualified. The first cut towards justice in a

political society involves presumptive85 legal compliance: following the rules.86 Aristotle

calls this legal justice.87 It is the next cut towards justice that promises to help close the

gap when legal justice proves inadequate and which, therefore, would seem to be so

important for Rawls’s commitment to stability.

The fundamental fault line in an institutional account of justice is the status of

positive lawmaking. Both Aristotle and Rawls consider legislation to be constitutionally

83 Michael Titelbaum proposes that the “full ethos of justice,” which, as manifested in the individual, is roughly equivalent in scope (but not content, see infra section V.b) to my account of Rawls’s sense of justice, also preserves the lexical ordering of the two principles of justice. What would a Rawlsian ethos of justice look like? 36 Phil. & Pub. Affairs 289, 296 (2008). 84 See supra note 20 (distinguishing attributive and predicative adjectives). 85 “Presumptive” here is meant to indicate the order of the inquiry: analytically speaking, it is appropriate to consider legal compliance first. Whether this is a weaker or a stronger presumption hinges, on a case-by-case basis, on the account that follows of epieikeia and civility. 86 TJ at 308. 87 1135b4.

26

handicapped at achieving justice. In their brief treatments of its inherent inadequacies,

however, they emphasize different concerns. For Aristotle, the basic limitation results

from the fact

that all law is universal, but in some areas no universal rule can be correct; and so where a universal rule has to be made, but cannot be correct, the law chooses the universal rule that is usually correct, well aware of the error being made. And the law is no less correct on this account; for the source of the error is not the law or the legislator, but the nature of the object itself, since that is what the subject matter of actions is bound to be like. Hence whenever the law makes a universal rule, but in this particular case what happens violates the intended scope of the universal rule, here the legislator falls short, and has made an error by making an unconditional rule. Then it is correct to rectify the deficiency; this is what the legislator would have said himself if he had been present there, and what he would have prescribed, had he known, in his legislation.88

It is an inevitable feature of laying down rules of general application in the face of a

future whose concrete circumstances can never be fully anticipated that these rules will

fumble specific cases. Legislation does not cease to be legitimate, in Aristotle’s view,

because of this natural defect.89 Rather, this deficiency calls for a corrective, which

Aristotle calls epieikeia.

Citing “inevitable loopholes,”90 Rawls acknowledges this natural defect of

general legislation, but in light of his contract approach, his discussion of the limits of

legislative justness focuses on procedure rather than substance. Rawls backs into the

problem, asking “how it is possible that when we are free and still without chains, we can

rationally accept a procedure[, legislation by majorities,] that may decide against our

opinion and give effect to that of others?”91 The answer parts from the Aristotelian

88 1137b20 (Irwin). 89 In effect, Aristotle presumes a legislative branch to constitute an “Aristotelian necessity”—at least for his intended audience. 90 TJ at 312. 91 TJ at 311.

27

necessity of legislation92: the absence of an agreement about procedures for lawmaking is

“surely” less preferable than consenting to some minimally acceptable procedure.93 At

the very least, among the cogent alternatives, none of the candidate procedures

systematically privilege anyone’s point of view.94 “In choosing a constitution, then, and

in adopting some form of majority rule,” Rawls holds, “the parties accept the defects of

one another’s knowledge and sense of justice in order to gain the advantages of an

effective legislative procedure.”95 “There is no other way to manage a democratic

regime.”96

These problems with lawmaking create the circumstances for the virtues that

Aristotle and Rawls call epieikeia and civility, respectively. Absent these natural defects

in lawmaking, there would be no need—no Aristotelian necessity—for the virtues I

describe next.

b. The Virtues of Epieikeia and Civility

i. Epieikeia

Epieikeia,97 according to Aristotle, is the virtue that rectifies the characteristic

deficiency of legal justice. In those instances when law gets a situation wrong due to its

92 See supra note 89. 93 Id. 94 Should this turn out to be the case for a permanent minority suffering injustice over years, their duty to comply with legislation becomes “problematic.” TJ at 312. 95 TJ at 312. 96 TJ at 312. 97 Epieikeia (pronounced eh-pee-ay-kay-ah) has its roots in “eikos” meaning the “plausible” or “appropriate,” M. C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Affairs 83, 86 (1993), and is “commonly translated ‘reasonableness’, ‘fairness’, ‘decency’, ‘propriety’, or somewhat more grandly, ‘equity’.” T. J. Saunders, Epieikeia: Plato and the Controversial Virtue of the Greeks, in PLATO’S LAWS AND ITS HISTORICAL SIGNIFICANCE, Academia Verlag Sankt Augustin (1998). Trevor Saunders, in his “archeology” into epieikeia, finds that in Homer “epieikēs has powerful implications of normalcy and rightness.” Id. at 67. That is not to say that Homer uses epieikeia in an uncontroversial way but rather as “a kind of persuasive evaluation.” Id. at 68. In an illustrative example, occurring after a five-contestant chariot race, Achilles proposes to the second-place winner, Antilochus, that the second prize be awarded not to him but to Eumelus who came in last, “as is epieikēs”. Id. The considerations at play include

28

overgenerality, “what is epieikēs98 is just, and better than a certain way of being just [i.e,

legal justice], not better than what is unconditionally just, but better than the error

resulting from the omission of any condition in the rule.”99 Aristotle recognizes the

unusual puzzle surrounding this feature of law: “when we reason about the matter, it

appears absurd for what is epieikēs to be something beyond what is just, and still

praiseworthy. For apparently either what is just is not excellent or what is epieikēs is not

excellent, or else, if they are both excellent, they are the same.”100

The solution to the puzzle is that “what is epieikēs is better than one way of being

just, but it is still just, and not better than what is just by being a different genus. Hence

the same thing is just and epieikēs, and while both are excellent, what is epieikēs is

superior.”101 Its superiority results from the deficiency of legislation with respect to

unqualified justice and the virtue of epieikeia to rectify this deficiency on an ad hoc basis.

What constitutes the “sense of justice” that rectifies the overgenerality of positive law in

this fashion? Anticipating Rawls, Aristotle appeals to a species of hypothetical contract:

Eumelus’s chariot accident and Antilochus’s cheating (known only to the poet but surmised by Achilles). It is noteworthy that this incident already exemplifies the Aristotelian notion of “taking a smaller share” than permitted at law, i.e., the second place winner is to forebear receipt of the second place prize. In Aristotle’s works, most occurrences of epieikeia are translated as “good”, i.e., “good man”, typically in a generic fashion that is contrasted with “bad” (e.g., 1157a17, 1270b35 and 1376a29). Aristotle himself articulates this scope of usage, explaining that “[s]ometimes we praise what is epieikeia and the person with that quality, so that when we are praising someone for other things we even transfer the term ‘epieikeia‘, as an equivalent of ‘good’, showing that what is more epieikēs is better” (1137b1-3). In the Politics, hoi epieikeis, referring to a class of persons, is translated by Carnes Lord, University of Chicago Press, 1984, as the “respectable” and by Jowett as the “wealthy” or the “virtuous”; these are cases in which Aristotle seems generally to be referring to persons of the upper and educated classes. In the two central discussions of epieikeia that describe an ethical virtue of justice, where epieikeia responds to the limitations of law, the term is usually translated as “equity” (W. D. Ross, H. Rackham, R. Crisp, Roberts) (deriving from the traditional Latin translation “equitas”), but also as “decency” (Terence Irwin, Hackett (1985)) or “fairness” (G. A. Kennedy, ON RHETORIC, Oxford (2006)). 98 Syntactically, the epieikēs (describing an act or a person) displays epieikeia. 99 1137b25. 100 1137b2 (Irwin). 101 1137b8 (Irwin).

29

the ad hoc correction of law involves discerning102 “what the legislator would have said

himself if he had been present there [in the situation of concern], and what he would have

prescribed, had he known, in his legislation.”103 In this way, epieikeia remains bound to

the justice inherent in the aim of legislators, and so “what is epieikēs is just, and better

than a certain way of being just—not better than what is unconditionally just, but better

than the error resulting from the omission of any condition in the rule.”104

This virtue comes to life with Aristotle’s description of the characteristic behavior

of the epieikēs person: “he is the one who decides for and does epieikēs actions, not an

exact stickler for justice in the bad way, but taking less than he might even though he has

the law on his side. This is the epieikēs person, and his state is epieikeia; it is a sort of

justice, and not some state different from it.”105 The way that the just person (with

epieikeia) characteristically deals with a shortcoming in law is by trying to make up for

the deficiency by giving something up if that will do, rather than leaning on his rights to

the disadvantage of other citizens or the polis. This by no means represents the only way

to act out epieikeia. The example, though, has the benefit of providing insight into the

sentiment motivating the epieikēs person, a generosity that includes love for justice and a

commitment to the principles sought by legislators. In summary, epieikeia can be said to

consist in communing in a human and forgiving way with the task of the legislator, with

102 “What is called discernment, in virtue of which we say that people are discerning and have discernment, is correct judgment of what is epieikēs. This is indicated by the fact that we say that the epieikēs person is especially discerning, and that it is epieikēs to be discerning in certain circumstances. Discernment is correctly discerning judgment of what is epieikēs; and correct discernment is that which judges what is true.” 1143a19-23. 103 1137b20 (Irwin). 104 1137b25 (Irwin). 105 1137b35 (Irwin). Joel Feinberg sees in the waiver of rights an essential element of moral thriving: “the person who never waives a right, never releases others from their correlative obligations, or never does another a favor when he has a right to refuse to do so is a bloodless moral automaton.” A Postscript to The Nature and Value of Rights. According to Feinberg, we can only define concepts like “admirable character” and the “supererogatory virtues” through a “contrast with the disposition always to claim one’s rights.”

30

willingness to take less than the law would allow, and with the advantage of full

knowledge of a problem case not well comprehended or addressed by legislators at the

time of their act.106

ii. Civility

Though Aristotle’s conception of epieikeia’s relation to justice represented an

innovation in Greek thought,107 he makes the fit between legal justice, epieikeia and

justice unqualified appear seamless enough, without introducing jarring tension in his

general account. For Foot to expound (in a way she does not) upon epieikeia as a

constitutive element of civil justice for persons confronted with a legislating state would

also appear conceptually unproblematic (so long as one can account for the prima facie

legitimacy of state authority to legislate). But, as I have shown, there is genuine

resistance in Rawls’s account for a sense of justice that transcends political institutions.

In the terminology I have proposed, it does not seem that anything like epieikeia fits

within the virtue of political justice. And yet Rawls does not shrink from acknowledging

the injustices inherent in majority legislation (and the loophole-generating generality of

legal norms).

His approach to the problem begins with a proverbial cookie trail back to the

original position. The majority principle is not accepted on unqualified terms by parties to

the original position: “when they adopt the majority principle, the parties agree to put up

106In the Rhetoric, where Aristotle is concerned with the epieikeia of citizens judging cases, he explains that:

Epieikeia bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions, nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been.1374b11.

107 See Saunders, supra note 97. This paper was a report of early work in progress of what was to be the complete history and analysis of epieikeia in Greek thought. Tragically he died before finishing the project.

31

with unjust laws only in certain conditions.”108 One of these conditions responds directly

to the problem of majoritarianism: at a certain point the duty to comply with law becomes

“problematic” for an oppressed minority. The other conditions respond to the procedural

weakness of majoritarianism but the check they impose on compliance is substantive.

“[W]e are not required to acquiesce in the denial of our own and others’ basic liberties,

since this requirement could not have been within the meaning of the duty of justice in

the original position.”109 Instead, Rawls explicates, our submission to democratic

authority, i.e., the scope of our duty to comply with the laws (what Aristotle calls legal

justice), is circumscribed by a sense of epieikeia, i.e., “to the extent necessary to share

equitably in the inevitable imperfections of a constitutional system.”110 Tracking the

notions of mercy and humanity that permeate epieikeia and relying upon the

characteristic of taking less than allotted under law, Rawls explains that “[a]ccepting

these hardships is simply recognizing and being willing to work within the limits

imposed by the circumstances of human life.”111

In view of this, we have a natural duty of civility112 not to invoke the faults of social arrangements as a too ready excuse for not complying with them, nor to exploit inevitable loopholes113 in the rules to advance our interests. The duty of

108 TJ at 312 (emphasis added). 109 Id. 110 Id. (emphasis added). 111 Id. 112 TJ at 312. The “duty of civility” takes on a different emphasis and role as part of the doctrine of public reason in Political Liberalism. One might speculate that the overshadowing of A Theory of Justice’s conception of civility results from Rawls’s later emphasis on addressing the instability that results from a plurality of comprehensive doctrines in a given society. The sense of civil justice is far harder to disentangle, one might think, from one’s comprehensive doctrine than is one’s sense of political justice. Seen this way, Political Liberalism relies upon a limited aspect of civility concerned with the choice of arguments one relies upon in a political forum. This is an effort to short-circuit the inherent defect with majoritarianism identified in A Theory of Justice, and thus deal in advance with the work civility does in the earlier account. Nevertheless, in sentiment Political Liberalism’s civility tracks the broader duty of civility in sentiment: the political player with civility does not lean on arguments that might advance her interests effectively given the parliamentary rules, but rather takes less, using only those arguments that are properly grounded in public, i.e., political, values and standards. 113 This is Rawls’s one reference to “loopholes” in the whole of A Theory of Justice.

32

civility imposes a due acceptance of the defects of institutions and a certain restraint in taking advantage of them.

Transmitted to the corresponding virtue of justice, the duty of civility tracks epieikeia

with a prohibition against exploiting inevitable loopholes in law. What it means not to

take advantage of a loophole is precisely to display the virtue of epieikeia by “taking less

than [one] might even though [one] has the law on [one’s] side.” One of the puzzles

presented by Aristotle’s account of epieikeia, suggested particularly by his illustration of

the characteristic of the epieikēs person to take less, is whether rectifying law might not

entail breaking the law and taking more in the right cases.114 Rawls heads off the

opportunism that feeds on this puzzle with the duty of civility’s prohibition against

“invok[ing] the faults of social arrangements as a too ready excuse for not complying

with them.”115

Especially juxtaposing the duty of civility with Aristotle’s account of epieikeia,

the value of civility for sustainable justice appears completely uncontroversial.

114 In another paper, I argue that breaking the law does fit within the account, though it would be exceptional, given the commitment of the epieikēs person to the polis. I infer that breaking the law in an epieikēs fashion would require notoriety and would generally be consonant with Rawls’s account of civil disobedience. Commentators, including Richard Kraut, ARISTOTLE at 109 Oxford (2002), who have argued for asymmetry (that epieikeia always requires taking a smaller and not a larger share), make an erroneous generalization, I argue, of the criminal judicial context featured in the Rhetoric where it is not open to the epieikēs person, as a representative of the polis, to take more from the accused by enforcing the law beyond its apparent reach. A structurally similar doctrine exists in Anglo-American law as the rule of lenity. See McBoyle v. United States, 283 US 25, 27 (1931) (Holmes, J.) (“When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used.”). In a civil dispute, on the other hand, the juror-judge sits differently, and what is to be taken or given is between the parties. Compare The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) (Hand, J.) (holding that the absence of legislation or custom requiring a radio on board a tugboat did not forestall defendant’s duty to take a valuable precaution against storms, a working radio, available at low cost). This symmetry, I claim, holds in private life as well, subject to requirements like those defended by Rawls with respect to civil disobedience. 115 TJ at 312. Rawls’s strategy is two decompose epieikeia to bring the inclination to break law out of the same or similar considerations under the head of civil disobedience.

33

Institutions have inherent “defects,”116 and those defects need to be contained so much as

possible. The institutional rubber hits the road at the moment the citizens engages around

law, and by agreeing to the duty of civility, the parties to the original position seek to

rectify the predictable defects of legislation. The problem is that civility makes for a

terribly imperfect duty. How can we say what is a “too ready excuse” when someone

invokes the faults of social arrangements as a reason not to comply with them? How can

we tell the difference between exploiting inevitable loopholes and not exploiting them?117

When compared to the other natural duties, these imperatives sound unusually

inscrutable. Recall that the duty of civility takes hold when parties to the original position

adopt principles for individuals that “constitute a coherent conception of duty and

obligation when taken together with the two principles of justice.”118 One could question

Rawls’s stipulation that parties to the original position agree to principles in the form of

duties,119 or instead, as I will do, embrace the idea that Rawls’s framework is built to

comprehend a sense of justice defined by the penumbral reach of, not only the two

principles of justice,120 but also the obligations and natural duties and the institutional

116 TJ at 312. 117 See Leo Katz, A Theory of Loopholes, 39 Journal of Legal Studies 1 (2010) (analogizing legal doctrines to voting rules and arguing that “the loophole-exploiting lawyer no more deserves to be criticized, sanctioned, or otherwise frustrated in his efforts than does the shrewd parliamentarian”). 118 TJ at 294. Query whether this criterion of coherence demands moral principles that take the form that Anscombe criticizes in Modern Moral Philosophy. See Anscombe, Modern Moral Philosophy at 5 (“The ordinary (and quite indispensable) terms "should," "needs," "ought," "must" acquired this special sense by being equated in the relevant contexts with "is obliged," or "is bound," or "is required to," in the sense in which one can be obliged or bound by law, or something can be required by law.”). If not, the inference would be that Rawls should argue for legalistic duties and obligations as against, e.g., the principle that certain virtues are to be honored in the society. One could point to Rawls’s “publicity” criterion to supply an argument in favor of duties and obligations, in the sense that discharge of duties and obligations is more readily verifiable from a public standpoint. In any event, my claim is that a virtue account is central to Rawls’s theory, especially for the stability argument, and that the natural duties and the obligations adopted in the original position are nurtured and stabilized by the sense of justice. 119 See supra note 118. 120 See Incentives at 114.

34

forms and laws that follow.121 This is important because, given the imperfections of the

duty, civility is much more susceptible to transmission as a sentiment (cum set of

considerations) than as a pure rule of conduct.

The question then becomes one of penetrating how the sense of justice achieves

the virtue of discharging the duty of civility with excellence. A sense of political justice

alone, I claim, is not enough foundation for this virtue.

c. The Sense of Civil Justice in the Virtue of Civility

Just political institutions may well be an Aristotelian necessity for human

cooperation. And certainly once political institutions take hold, justice is their primary

virtue.122 Political institutions, to reuse an earlier image, eclipse an abstract notion of

human cooperation as the bedrock upon which Rawls’s virtue of justice, in large part,

hangs as an Aristotelian necessity. But civility, like epieikeia, is different. Striking the

right balance takes a sight set beyond the defect-prone institutions that call the virtue into

action. But what exactly does civility aim for?

The cookie trail alluded to earlier leads back to the original position, and the sense

of justice that realizes the virtue of civility must, like epieikeia, re-enter the hypothetical

contract. Rectifying the defects in institutional justice virtuously leads the citizen to reach

back all the way to the pre-institutional perspective of the original position, where there

is, as of yet, no sense of political justice. It is the parties’ sense of civil justice, of a piece

with Foot’s account, that underwrites the fairness of their engagement. Civility’s good

hangs on human cooperation, and so with one foot planted in civil society, the other foot

steps through the political society whose institutions it rectifies. “As a rough rule,” Rawls

121 Cf. Titelbaum, supra note 83. 122 TJ at 3.

35

says, “a conception of justice is reasonable in proportion to the strength of the arguments

that can be made for it in the original position,”123 and it is only upon a shared

commitment to civility in the original position and forever more that the argument for

tolerating “a constitutional rule that would require [them] to comply with laws [they]

think are unjust”124 wins the day.

Civility thus acts like a lifeline back to the original position where the sense of

civil justice can rectify the institutional deficiencies that threaten to distort the sense of

political justice. The prophylactic role of the sense of civil justice at the margin of

political engagement in no way diminishes the sacredness of the political institutions that

the sense of political justice enshrines. Civility’s distinctive competence is piercing the

institutional layer so the sense of civil justice can lead the citizen to act upon political life

with a robust sense of political justice, emboldened by a sense of civil justice. The twin

senses of political and civil justice nourish each other as well as the political institutions

that give the latter meaning and the former important work to do.

V. The Virtue of Civility in Market Life

a. Markets and Civility

In Philippa Foot’s account, the virtue of justice thrives without mention of

political institutions. It is also, notably, innocent of the market. Rawls’s theory of justice,

on the other hand, sees both political institutions and markets as basic to any well-ordered

society.125 Indeed, I would hazard the hypothesis that the problem of stability that so

concerns Rawls is substantially the result of relying upon the market to produce and

distribute so many of the primary goods. In any event, this source of instability points to

123 TJ at 310. 124 TJ at 311. 125 TJ at 239-42.

36

the importance of those dimensions of the virtue of justice whose excellence it is to tame

the wildness of market life.

The logic that the market facilitates is the reification of the price system. Hayek

praises the capacity of this system to communicate information to buyers about the needs

of sellers.

It is more than a metaphor to describe the price system as a kind of machinery for registering change, or a system of telecommunications which enables individual producers to watch merely the movement of a few pointers, as an engineer might watch the hands of a few dials, in order to adjust their activities to changes of which they may never know more than is reflected in the price movement.126

And yet this information is systematically distorted. Among many defects, the price

system omits information about the needs of persons too poor to trade for the goods they

need.127 Another troubling weakness arises when the market is used to allocate peoples’

labor time to productive activities. Rawls is committed to the idea that deviations from

equal pay should have principled grounds, but the principle relied upon to do the work,

the difference principle of the second principle of justice, recedes into the institutional

background as the markets daily answer to supply and demand. It is a lot to expect of the

institutional controls required of the difference principle that it check the inequality

constantly engendered in an active labor market. As Foot might have asked, how can we

get on with such markets without the corrective influence of a virtue of justice that sees

through the weakness of the political128 institutions behind these arrangements?129

126 Friedrich von Hayek, The Use of Knowledge in Society, 35 American Economic Review 519, 527 (1945). 127 Unless the government or some other third party benefactor steps up to bid for the good in the market. 128 The market arises within the structure of political society rather than outside of it, like another society’s government, or in its interstices, like the family. 129 This quandary has led some philosophers to challenge the adequacy, for purposes of realizing justice (what might be termed principled inequality), of the institutional structure that emerges from the two principles of justice. G. A. Cohen, for example, argues that just citizens could not embrace discrepancies in pay not tied to differences in effort or time and that the inequalities brought on by the capitalist labor

37

The seriousness of the difficulty presented by markets is magnified by their

private transactions’ arguable status as “noninstitutional situations [in which] the

utilitarian view [is] compatible with the agreements [about justice] already made.”130

Even if this misreads A Theory of Justice, it is a matter of fact that utilitarianism has the

most legitimacy in a society like ours around the regulation of market activity by

governments. The form of utilitarianism that undergirds the regulation of markets is

necessarily a variety of rule utilitarianism, whose inherent instability has long been

recognized.131 Whether on account of aggregate-utility-seeking or hedonistic-rent-

seeking, the rights and protections erected to govern markets are continually at risk of

being trammeled. To make matters worse, the reification of the price system tends to

distance from view citizens’ sense of political justice, as the market comes to assume

freestanding allocative legitimacy. It is celebrated for operating according to a unique and

powerful logic, one which (however mistakenly132) deems the advantage of self-

interested trade, tout court, a cardinal virtue.

Civility has the potential to provide a much needed corrective in the market, and

before concluding, I will try to outline how the person with the virtue of civility engages

market defects, in what sense it is that taking less can enhance the cause of justice. The

model is based on the idea that civility has one foot in civil society and another in

market (not to mention private ownership of differing amounts of capital) require extra-institutional intervention by individuals acting under the influence of an ethos of justice. Cohen emphasizes the egalitarian aspect of this ethos, but Michael Titelbaum proposes instead to complement Rawls’s account with what he calls a “full ethos” that tracks the two principles of justice, leading individuals and the community at large in their day-to-day interactions to give effect to the principles of justice and their implications. Titelbaum, supra note 83 at 304. Titelbaum’s account is generally consistent with my own. 130 TJ at 295. 131 See David Lyons, Utility as a Possible Ground of Rights, 14 Noûs 17 (1980). 132 See Amartya Sen, The Economist Manifesto. New Statesman, 139 (2010) (criticizing a narrow reading of Adam Smith).

38

political society. This duality serves to sustain in aggregate a robust sense of justice that

conserves and reinforces itself across the civil and political domains.

b. Civility in Shiffrin’s Imperfect Duty

Let us revisit Shiffrin’s hypothetical:

suppose I initiate an employment search and am offered a number of jobs, one of which best serves the least well off and is adequately satisfying, but another of which is of greater interest to me. Suppose [that due to my talents] the number and qualitative range are greater than those available to many others competing at that time in the job market.133

We are now in a position to appreciate the stipulations in the case. On the one hand, the

market, with the legal architecture upon which it rests, dictates that it is my right to take

any of the positions available. Moreover, the justification for market exchange rides on

the assumption that economic actors make their selections according to their subjective

preferences; that is how economists can theorize social welfare from freely selected

transactions. On the other hand, the position that I (the protagonist in the example) prefer

from the standpoint of my own work experience is not the one that will do the most for

society insomuch as another better serves the least well off. What do I do if I have a

“strong and normally effective desire[] to act on the basic principles of right”?134

Note that the impersonality of many labor markets, bolstered by a pervasively

held sense of what could be labeled “market justice,”135 provides a challenging rejoinder

to Foot’s analysis of justice in Moral Beliefs.136 There she held, contra Thrasymychus,

that injustice with feigned justice is simply not a tenable tenet. But with the insulation of 133 Shiffrin, Incentives, Motives and Talents (hereinafter “Incentives”) at 135. 134 TJ at 436. 135 I would include notions like caveat emptor, caveat venditor and maxims that say one needs to look out for “number one” and that it is irrational to spend a penny more than necessary on anything in the precepts that color “market justice.” 136 See Incentives at 138 (“Incentive payments often are not the products of direct demands in face-to-face bargaining situations. They often arise indirectly and through the operation of gross structural mechanisms rather than fine-grained reactions.”).

39

impersonality and the cover of a widely held sense of “market justice,” injustice becomes

much more viable as a way of life. I still have not argued that it would be unjust to take

the preferred position over the one that, ex hypothesi, is better for society, but it is

important to see before proceeding that Foot has not prepared us with a ready framework

for this problem.

What about Rawls? It is one thing to love institutional justice, and another to

modulate its many principles of right into precepts for choice. This is why Aristotle says

justice requires wisdom.137 To attack the problem, Shiffrin proposes what she calls

“substantive virtue methodology” as a heuristic for identifying the specific considerations

and sentiments that must inform the sense of justice. According to this approach, one

starts with an institutional principle “P” and asks, “what behaviors and what character

traits, e.g., beliefs, habits, dispositions, attitudes, and motives other than those explicitly

specified by P will be necessary for the reliable realization of P’s directives?”138 The

most relevant institutional principle informing the labor market decision in the case is the

difference principle, disapproving of institutionalized inequalities that are not for the

benefit of a society’s least well off. Shiffrin translates this principle, in the context of

labor market incentives, through her methodology into “the claim that talents are

arbitrary from a moral point of view.”139 This is so because “the major justification of the

Difference Principle is that distributions of social primary goods should not reflect factors

that are arbitrary from a moral point of view.”140

137 Michael Titelbaum, supra note 83, proposes an algorithmic conception of the individual’s reception of institutional principles, including the lexical ordering of the two principles of justice. But it is not clear what insight that approach brings to our puzzle in the labor market. 138 Incentives at 114. 139 Incentives at 121. 140 Id. at 121-122.

40

Embracing this principle within the sense of justice, then, what do I (the

protagonist) do about choosing jobs? The puzzle that Shiffrin identifies with this case is

that,

What is offered, intrinsically, is not inconsistent with the internalization of the arbitrariness point by any particular agent. Rather, in this case the context in which the various offers from diverse origins have been made has only arisen in light of a quality that is arbitrary from a moral point of view. This raises the following question. Does internalization of the arbitrariness point require that one not only abstain from seeking to gain by actively leveraging factors that are arbitrary, but also that one be vigilant to uncover and refuse all benefits that come one’s way because of factors that are arbitrary from a moral point of view?141

The problem is thus one of interfacing with institutions that may be rewarding my

arbitrary talents. Does my commitment to the principles of justice and hence the

restriction of permissible motives in the labor market mean I must take pains to remain

untainted by, and battle against, the market’s tendency to create more jobs and pay more

to those with (arbitrary) talents? Shiffrin analogizes to the problem of racism in markets,

where

It is not especially or unreasonably burdensome to require citizens not to act on racist motives, not to present racist reasons for claims, not to seek to take advantage of others’ racism, and to develop sufficient self-knowledge to uncover and police one’s true motives, even if they are not transparent on the surface. It may present more of a burden on individuals to demand they investigate and discern why various opportunities are available to them; to refuse those opportunities even when the alternatives are noticeably worse; to disentangle themselves from all structures that provide standard, reasonable goods but contingently have racist origins or racist effects; and to do so on one’s own in an uncoordinated fashion in the face of uncertainty produced by the epistemic unclarity of what and how much to do and what others are doing. The burdens are partly that such efforts are extremely attention-, energy-, and time- consuming, partly that a citizen whose actions and motives themselves have been innocent must bear this responsibility, and partly that it may require constant creativity when there are no clearly satisfactory options.142

141 Id. at 136. 142 Incentives at 138.

41

Shiffrin concludes (tentatively) that the duty to do what is not unreasonably burdensome,

“not to take advantage of talent directly,” does not imply we have a duty to do what may

present more of a burden, “not to benefit from opaque mechanisms that privilege

talent.”143 Becoming aware of the operation of illicit factors like talents or race in the

markets underscores a “reason to support coordinated efforts to control the influence of

these factors” through governmental and non-governmental organizing.144 The duty to

engage in these sorts of activities, Shiffrin concludes, must be an imperfect one. So she

concludes that I can take the job I like (or the job that is better for society) but that I have

an imperfect duty to respond in some way to the underlying social problem. After all,

“[t]he structure of the problem seems to demand a more collective, coordinated

response.”145

The imperfection of this duty, not surprisingly, is the same imperfection that

afflicts Rawls’s duty of civility. What Shiffrin runs up against is the problem of the

overgenerality of law, here reflected in the liberty given by the constitution to the market

to allocate labor, notwithstanding its failure, in individual cases, to honor more

fundamental principles of justice, like the difference principle. The generality of this

market liberty may be justified in general by, for example, rule consequentialist

considerations that hew with the second principle of justice, and yet individual cases may

elude this justification, contravening the commitment of parties to the original position

not to advantage arbitrary talents. So what is the individual to do? Shiffrin distinguishes

between what would be clearly inconsistent with the justification for the difference

principle, namely to take advantage of one’s talents directly, and what is (merely) in

143 Id. 144 Id. 145 Id.

42

tension with the justification for the difference principle, to “benefit from opaque

mechanisms that privilege talent.” In the latter case, justice leaves the individual a lot

more latitude from the standpoint of duties. How could it be otherwise? Confined to the

logic of duties, what could members of the original position have stipulated to reliably

nip such defects in the bud?

What I would like to propose is that the perfect and imperfect duties distinguished

by Shiffrin are differentiated by their roots in the senses of political justice and civil

justice, respectively. The strict prohibition Shiffrin adduces against taking direct

advantage of one’s talents is fully baked into the institutional framework. Citizens do not

need to revisit the original position to ascertain the inconsistency between the difference

principle and talent-based rent seeking. All they need to do is read the writing on the

institutional wall. The kind of market-based scenarios that would flummox Foot’s case

(in Moral Beliefs) against Thrasymachus’s celebration of injustice are not so easy. There

is a communing with society and mercy for the inherent inadequacies of institutions that

needs to lead the way. Aristotle calls this epieikeia, and Rawls calls it civility. Either

way, the virtue conjures the original position where legislators adopted the law (Aristotle)

or agreed to the principles of justice (Rawls). And what can be said from that vantage

point? First off, that the injustice (in terms of the original position, i.e., Footean civil

society) presented by the case was not sought by those parties. Second, that there is an

implicit plea for an ambassador who can, one way or another, rectify the deficiency on

the ground.

Shiffrin recognizes the need for imaginative rectification of the injustice through

activism of some kind. This, I submit, is the distinctive virtue of civility in market life:

43

enabling the citizen to feel injustice even though the sense of political justice does not

clearly demand a response, and then preserving that injustice, a kind of moral

remainder,146 as fuel for a response driven by civil justice, which might engage with

political or civil society. This is how civility sustains what I called earlier the sense of

justice in aggregate. Injustices that do not generate (readily discernible) countervailing

perfect duties threaten to undermine the public sense of justice. The injustice at issue

becomes more and more taken for granted, as with the tolerated excesses of market life.

Civility is a bulwark against this erosion, and the first line of defense is guarding against

the dissipation of the sense of injustice that parties to the original position will hope

citizens feel around institutional inadequacies. Following through on the impetus drawn

from perceived injustice with some activity is also crucial, though inherently

unspecifiable as a matter of duties. Discharging the imperfect duty of civility with virtue,

therefore, benefits in great measure from the wisdom, courage and beneficence of

citizens.

VI. Conclusion Based on his extensive study of Plato’s Laws, Trevor Saunders concludes that

“Plato intends in effect to make [epieikeia], as traditionally understood, redundant in his

social, political, and legal scheme of things—or rather to actually expel it, as a practice

dangerous to the state.”147 Foot, who ignores the state, neither endorses nor disapproves

146 B. A. O. Williams, Ethical Consistency, 39 Proc. Aristotelian Soc. 103 (1965). 147 Saunders, supra note 97 at 81. Saunders defends this thesis based on four discussions in the Laws relating to economics, politics, heiresses and penology. Most interesting for our purposes is Saunders’s discussion of a passage (736d4-737a2) that “may seem at first blush to undermine [this] thesis.” Saunders concludes that in this passage, which he takes to be the only occurrence in all of Greek literature where epieikeia “is advanced by name as a tool for the cure of economic imbalance and discontent,” Plato is not talking about Magnesia, the state to be founded upon the proposed laws which will have proper distribution of goods at birth, but rather a long-established state that needs the redistribution. The project of working out Magnesia’s laws gives Plato the space to at once acknowledge the place for epieikeia in wealth

44

of epieikeia. The task of figuring out what she would have said about dealing with

problematic laws, for example, is left to the imagination and conceptual extrapolation. I

have given reason to think that, so long as the prima facie legitimacy of positive law and

other state-sanctioned institutions can be accounted for, Foot’s virtue of justice would

extend to include epieikeia. The bedrock of Foot’s account of civil justice is human

cooperation, and the institutions confronting the individual would simply describe the lay

of the land, the realm in which the individual makes choices. Foot might even approve of

Aristotle’s hypothetical contract out of some sense of comity with the legislators who

were concerned to enact a norm for the benefit of the polis.

Rawls is more realistic than Plato and recognizes that without civility (which, I

have shown, covers much of epieikeia’s scope) the justice of the state rests on too

precarious a foundation. Rawls, unlike Plato, intends to address real societies through a

hypothetical contract, rather than, as in Plato’s Laws, a hypothetical society through an

actual contract (his book of Laws). Plato’s fear, according to Saunders, is that epieikeia

would be destabilizing.148 And the destabilizing aspect of epieikeia is not to be

minimized. There is no guarantee that the virtue of civility will not undermine existing

institutions. The question is whether institutions undermined by epieikeia are worth

keeping. With his unalloyed praise for epieikeia, Aristotle seems to suggest the answer is

“no.”149 So long as the civility of citizens remains anchored in the circumstances of the

original position, Rawls would have to agree.

redistribution in actual society while eschewing its destabilizing influence in a new city where wealth is properly distributed from day one. 148 See supra note 147. 149 Rawls shows caution by decomposing epieikeia into multiple concepts, civility and civil disobedience, presumably to channel the imaginative, institution-correcting energy of epieikeia towards greater stability. For Rawls, civility rectifies legal justice, without contravening the laws. Civil disobedience, on the other

45

hand, breaks laws but, unlike Aristotle, Rawls sets forth detailed criteria in a way that might have begun to address some of Plato’s concerns with epieikeia.