Equality Under Law

Nagel: Equality And Partiality Chapter Seven

The question is how far to extend equality before the law into social and economic questions. Nagel wants more egalitarianism (even) than is available under modern welfare states but wonders to what extent this is utopian in that it requires people much better than we are. Impartiality is the driver for this; otherwise there would be no need for more equality than is required for stability. [Currently, it seems that quite significant levels of inequality can produce stable systems. Nagel assumes wrongly that all inequality is the result of partiality which is false across the board but especially so in the case of income distributions. Some people do deserve to earn more.]

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It is `appalling’ that substantial inequalities exist, if every human life matters equally. [Once again, this has not been argued for and without this assumption, Nagel does not even claim to be saying anything. He is merely talking about what would be the case were that assumption to be true.]

The impartial attitude comes from our ability to abstract from who we are. [Again, it is assumed that this is possible in some format more arresting than a theoretical arena, and Nagel engages the hypothetical mode once more thus not even pretending to make claims if the unsupported antecedent is not true. If we have this standpoint, we will be egalitarian. The error here mirrors that of Rawls who assumes that everyone will be infinitely risk-averse, presumably because he was. This impartiality is what is held to support the view that every life is of equal value. The conflations here are between any of `I can imagine being other people’ and `I should worry about other people because I could be them’ and further `My circumstances could change/could have been such that I would be in the position of those other people’. The first is questionable, the second clearly false and the third may be true in some modal sense — but the point is that Nagel thinks all of these are the same statements which seems unlikely given they are arrayed all over the spectrum of truth-values.]

The value we assign to everyone’s values starts from what that person values. [Nagel employs the term `preliminary’ here so that he has some way later to avoid wanting his system to avoid producing the result that we harm serial killers by not allowing them to indulge in their proclivities. We could imagine such a case where someone gains such enormous pleasure from such activities that the utilitarian calculus indicated allowing them to proceed as the best course of action. We await the restrictions Nagel will place on his system to prevent this.]

Egalitarianism now means that everyone has an equal weight in the system of values now produced by summing over all values of everyone in the system. Diminishing marginal utility — the value of $1,000 to someone with $500 is greater than that to someone with $50,000 — is enlisted to show that the system would be inherently egalitarian. [The usual error made again here is that wealth is handed out by governments as opposed to created by use of capital, labor and innovation. As the FT reports today on UK taxpayers, the `Top 1% poised to pay 25% of income tax’ which should be in line with what Nagel wants. It’s only fair, and egalitarian. Because no-one with that money can possibly deserve it. We know that from first principles, even though they may be unstated ones.]

If everyone counts the same, we should equalize all resources. [We now face Nozick’s objection to Rawls’s wish for a similarly flat-patterned distribution. How would we police it? No-one would be allowed to pay for services from someone who was better off than them, because that would result in a new inequality. And why would anyone bother to do anything? This outcome though is held to be so wonderful that it is worth pursuing even if the poor benefit by less than the rich are punished.]

Having started with this claim which Nagel modestly thinks is uncontroversial, he will now turn to something more challenging. Impartiality should mean favoring the poor more than the rich, even though some weight should be given to improving the position of everyone. [Is this because some of the rich have clearly been able to help themselves, and do not thus need the benefits of Nagel’s leveling largesse?] Both the number of people to be benefited and the amount by which they are benefited will feature, with the emphasis on the former. Priority will be given to the worst off. [There is no discussion of the moral hazard problem, whereby I am encouraged by such a system to squander any resources given me such that I remain a member of the worst-off group and can rely on future transfers for an indefinite period.]

The combination of values will be such that the worse-off person ranks in front of every person who is better off. [Impecunious serial killers are to be assisted in fulfilling their dreams in front of better-off serial killers, who can be left to their own resources. If anyone has any of their own resources left. We are now in the position where we can presumably imagine expending unlimited resource stolen from everyone less one person in a society to benefit that one person who is the very worst off. That benighted person will be in such poor conditions that it will be a difficult enough task merely to keep them alive, let alone bring them up to the average position in society. But are we to do that? There will be someone who is 0.001% better off than them who will this become the new `worst-off’ person once we have improved marginally the position of the previous incumbent — who is thus disqualified from further support, unless they cleverly take advantage of the moral hazard escape route previously mentioned.]

These worst-off people are to be helped despite the fact that they may be inefficient users of resources because they have other problems than poverty. [They may in fact be poor because they are for example drug addicts, but we are to take money from people who are not drug addicts to support the habits of the worst-off drug addict. That individual may continue to expend unlimited resources taken from others providing he always spends all of his loot. All of these types of difficulty are grouped under the generic term `evils’ so it is clear that no-one can be blamed for such issues — they are exogenous, we are to assume. No one deserves to any extent their poverty in the same way that no-one deserves to any extent their wealth.]

We are to assume the impersonal standpoint by imagining that we are all one of the 6.898 bn people on the planet and that that life is the only one we have. [Nagel surely employs understatement when he characterizes this as a `tall order’. This is supposed to belong to the same `moral outlook’ as the one requiring unanimity but we are not told what a moral outlook is, why its has parts that go together and why it is correct as an approach or meaningful as a term.]

Advantages to the better off are conceded on the generous terms that they do not harm the worse-off. [That of course is impossible and contradicted by Nagel’s previous statement that self-respect is partially driven by material prosperity. If that is true, the better off harm the worse off merely by existing in public and that would suffice to limit their allowable advantages to anything beyond the level of the worst-off. Unless they live in secret somewhere else. We are told that revolutions are started by TV pictures of lifestyles of the rich and famous…]

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Economic inequality is wrong because it leads to class oppression, and the world is a terrible place on these grounds, we are told. [So at least now we know we are in fact working on a global basis, and so the worst-off person to whose upkeep we must all spend all our resources until everyone is in the same place is the worst-off person in the world. This one imagines is a baby born to a family of 12 in a famine zone under armed conflict with no food or prospects of obtaining any and several terminal diseases. This is our destination.]

There are two ways of privileging the worst off. One way would be to set an absolute minimum and prevent anyone falling below. But Nagel wishes to support the stronger claim that the worst-off should always have priority irrespective of the amount by which their position has improved. They have a `basic need for self respect’ which otherwise we would harm [ — because after all, we are all responsible for everyone else’s self-respect.]

Nagel’s argument for this claim has several parts, of which the magisterial first is that it seems to him to be intuitively correct. [This is a contender for the most stupid remark in the book so far, but there is competition.] We are to be helped to see this by considering the order of priority in which we should help the working class, the middle class and the upper class. [Nagel has clearly forgotten he has introduced the global scope. In a famine, few people even get as far as working class.]

The absolutely needy are a smaller group than say the working class, so we should help the larger group. [Why?] The unskilled are to be helped before the skilled. [No success no matter how limited can remain unpunished.] Nagel’s intuitions fortunately give out along with his imagination when he considers whether the position of a multimillionaire and a middle manager are different in terms of whether we should help the latter before the former. [They are both sources of cash who can be safely ignored for him from the impersonal standpoint. Why doesn’t the middle manager stop working and become worse off in order to benefit more?]

The second argument is that general egalitarianism is favored by impartiality, because comparisons do not stop at some minimal level. [This argument is invalid because it assumes that inequalities can only result from partialities.]

Nagel accepts that unequal distribution of advantages is not bad per se but only when the unequal distribution results from factors beyond their control. [Thus the stupid should command more resources in order to support their gaining admission to UCL and the resources to be supplied should be directly proportional to their stupidity and the hopelessness of their pre-intervention case. People with no hands should be supported in their choice to become surgeons. The blind should fly planes — surely we can afford these things.]

This leads to the large question as to the extent to which someone deserves their abilities. [It seems difficult to argue that anyone deserves to be intelligent, for example. And so that would suggest that we should not allow anyone to benefit from their undeserved, random intelligence. We are told that this problem will be solved later.]

Since it is acknowledged that even those people who can miraculously occupy the impersonal standpoints are not saintly [really?] — the system will have to be better than they are, it will have to impose egalitarianism on them [ — why would anyone accept this?]

A further form of super-egalitarianism is mentioned, whereby inequality is to be reduced even if it harms the position of the worst-off. [Nagel does not support this extreme version fortunately, but that does leave us to wonder how and why his alternative is different and better.] Rawls’s Difference Principle gives absolute priority to the worst-off. [But Nagel’s threat is clear — he wants much more egalitarianism than currently exists in democracies.]

Chapter Eight

We are to imagine a more egalitarian form of life than we currently have, which might for example embody very progressive taxation regimes. [In the UK in the 1960s, the top rate of tax was 95% with investment income being taxed at the remarkable rate of 136% in 1967\footnote{}] — you really were better off without it.] The question is whether anyone would accept this. It is not to be an empirical question — [fortunately, for then we would have a very quick answer before we even consider the points that such a Draconian regime would have to apply everywhere in the world and that there would really be no point in engaging in high-income generating activities.] Instead, it is to be the Kantian question as to whether everyone \emph{could not reasonably reject} such a system.

Nagel believes that a strongly egalitarian system would not be rejected by the worst-off [ — he forgets that some of those people will have some sense of belief in themselves and what they can achieve and would therefore not like the fruits of their endeavors to be confiscated and given to their less dynamic class compatriots.] But the question of acceptability must turn on the inevitable winners and losers that emerge from any proposal. The better off will be the predominant losers under a more egalitarian system [ – assuming it does not permit any further inequalities to arise — ] and so this is the group to be considered in order to form an overall view of acceptability. This group can complain that the system is not in fact impartial since they have to give up opportunities and others do not. [Apparently the claim that a system is not legitimate because `it does not do enough for me‘ unless it is put forward as a more general argument.]

The alternatives to general egalitarianism to be considered include some common elements as given: freedom of conscience for example. [This allows me to believe anything I like, and so would include religious views. The Taliban’s views on education of females would be protected presumably. Nothing is said on conflicts of rights, such as are inevitable when one promiscuously applies that term to a large array of putative `rights’.] The egalitarian system will also include these elements.

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The first alternative is utilitarianism, involving maximizing benefits across individuals. The second is restricted egalitarianism which applies only to some goods termed `basic’. [Once again, this basic set includes the infamous right to self-respect at public expense. Why do these people not look to themselves to find some self-respect? Does not the very act of attempting to give it to them undermine itself?]

The utilitarian challenge is met by claiming that egalitarianism is superior in terms of the motivational burdens imposed; i.e. the better off should be happier paying for egalitarianism than utilitarianism. This derives from impartiality concerns. [But is the slogan `everyone must be the same’ more correct than `everyone must benefit as much as possible and how would we know what correctness looked like anyway? We are in any case to accept impartiality in the interests of supporting the principle that everyone counts the same, so we can quickly dispense with both.]

[It has been noted previously that the worst-off are inefficient users of resource in that they may be hard to benefit because they suffer from manifold non-poverty disadvantages. We have also learned that the justification for punishing the better off is that of diminishing marginal utility. Does not Nagel also owe us an argument that the latter is outweighed by the former? What type of economics would show that?]

Even though only some people are making sacrifices, `each person is being treated the same’ and cannot therefore complain. The problem with utilitarianism for Nagel is that it might increase utility to benefit the better off — if there are enough of them and they benefit to a sufficient extent. Yet this seems psychologically unappealing since it is easier to make sacrifices for those worst off than oneself. [This again assumes that one will never become one of the better off. And is it really easier? Is it not just as annoying to give up one’s college place for a poor person as for a rich person? And would it not be more so if the poor person would not even have been applying had they not benefited from resources taken from you?]

Rawls’s Difference Principle requires only the top-down sacrifice transfers and so is asymmetric in comparison with utilitarianism. Nagel notes Rawls’s objection to utilitarianism and cites him as follows: `it seems quite incredible that some citizens should be expected, on the basis of political principles, to accept lower prospects of life for the sake of others’. This is all Rawls writes, but Nagel quite tendentiously takes him to be saying that it would be incredible only if the others who benefit gained advantages greater than oneself. [This of course he needs to say to be consistent with his own position, but is it not more plausible to read Rawls as meaning exactly what he says — how can mere politics and theory persuade anyone to give up anything for someone else, when the things being given up are life chances over the whole of one’s life?]

The perspective from the guaranteed minimum alternative is stated to be that both utilitarianism and egalitarianism are `extravagant’. It is claimed that there is a mistake in holding that the worst off cannot object to a system which gives them a guaranteed minimum, because they would be forgoing benefits they could have above the minimum in order to avoid taking those benefits from the better off above the minimum. So if the better off can object, so can the worst off: both parties can object to the sacrifice of benefits above the minimum level in order to provide the better off with those benefits. The problem is to equate the guaranteed minimum with some level of normality as a baseline for comparisons. [The mistake in the mistake is once again the false assumption that the better off have only become so because the system has made them that way. It has illegitimately given them all their resources and they have not earned them at all. Since they have not earned them, they can legitimately expropriated. Should not the worst off object to this because a system which allows expropriation harms everyone?]

The upshot could be that both utilitarianism and egalitarianism fail the universal acceptance test. [Nagel needs to defeat that possibility — and will attempt do so by arguing that all systems would fail such a harsh test if they differentially benefited different parties above the minimum. Is that not an argument for laisser faire?]

Once again, the mythical impersonal standpoint rides to the rescue. It is supposed to provide us with a desire to see more done for others than the provision of a basic minimum. [But even that basic minimum can scarcely be provided globally. And if it were, would not the resulting increases in population in poor countries bring larger difficulties?]

[One can see the envy inherent in Nagel’s position when he suggests that the solution available to the better off when reflecting on the position of the worst-off is to `drown their fellow feeling in claret’. Has he not drowned his claret in fellow feeling? Who is right? Why can we not just enjoy ourselves, or must everyone in the world be happy before anyone is?]

Next Section: Are We Allowed To Follow Our Personal Aims? Nagel says Maybe

By Tim Short

I am a former investment banking and securitisation specialist, having spent nearly a decade on the trading floor of several international investment banks. Throughout my career, I worked closely with syndicate/traders in order to establish the types of paper which would trade well and gained significant and broad experience in financial markets.
Many people have trading experience similar to the above. What marks me out is what I did next. I decided to pursue my interest in philosophy at Doctoral level, specialising in the psychology of how we predict and explain the behaviour of others, and in particular, the errors or biases we are prone to in that process. I have used my experience to write The Psychology of Successful Trading. In this book, I combine the above experience and knowledge to show how biases can lead to inaccurate predictions of the behaviour of other market participants, and how remedying those biases can lead to better predictions and major profits. Learn more on the About Me page.

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