Desert? You Can't Handle Desert!(John Rawls on fairness and justice)

• Author: Munger, Michael C.

"It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

"That is no excuse," replied Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass--a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience--by experience."

--Charles Dickens, Oliver Twist, emphasis in original

I've always thought desert is a ass. I don't mean the dry places or the verb that involves fleeing comrades in the face of the enemy. I mean the requirement that things, good or bad, must be deserved. John Rawls (1971, 1997) made desert a centerpiece of this theory of "fairness as justice." The "man of system" often imagines he can design a society where desert rules all; I hope that his eyes will be "opened by experience--by experience." (1) The most a society can hope for, in my view, is a set of convention-based entitlements that create expectations that coordinate the activities of individuals without oppressing their liberties.

But then I'm a Humean being, and ideal theories of all stripes leave me cold. F. A. Hayek, in some ways David Hume's disciple, celebrated the potential for emergent conventions that respected property rights and a presumption in favor of liberty as the best means of assuring the prosperity and flourishing of all. This flourishing included, perhaps more than most, the poor. My own version of the emergent selection of political systems is based on "rule utilitarianism" (Harsanyi 1977), which "says that we can produce more beneficial results by following rules than by always performing individual actions whose results are as beneficial as possible" (Nathanson n.d.). (2)

The (excessive) privileging of concerns about desert and justice over utility can have unintended effects that lead to Pareto-inferior outcomes, meaning that literally everyone is worse off, perhaps substantially so. The best of intentions focusing on fairness to the exclusion of all else harms the entire society, even those who are least well-off. Consider David Schmidtz's celebrated parable "Desert Town," in which he tells of a driver passing through a small town:

I pulled over. The cop pulled in behind. Walked to my window, peered inside, asked for my license and registration.

New in town?

Yes, I said. Got in five minutes ago.

Know what you did wrong?

"Sorry. There was no stop sign or stop light. The cars on the cross street were stopped, so I kept going."

The cop shook his head. "In this town, sir, we distribute according to desert. Therefore, when motorists meet at an intersection, they stop to compare destinations and ascertain which of them is more worthy of having the right of way. If you attend our high school track meet tomorrow night, you'll see it's the same thing. Instead of awarding gold medals for running the fastest, we award them for giving the greatest effort. Anyway, that's why the other cars honked, because you didn't stop to compare destinations." The cop paused, stared, silently.

"I'm sorry, Officer" I said at last. "I know you must be joking, but I'm afraid I don't get it."

"Justice isn't a joke, sir. I was going to let you off with a warning. Until you said that." (2006, 31)

In terms of ideal theory, the "system" of Desert Town makes sense: Why should one driver, for no good reason, be allowed to go while others wait? What if someone else is in a hurry? It's not fair. The problem is that deciding what justice dictates is costly; in a way, it's like R. H. Coase's (1937) famous observation about markets and firms. Coase asked, "If markets are so great, why are there firms?" The answer was transaction costs: although markets do generate information about relative scarcity through the price mechanism, using that mechanism is costly. It is often much cheaper and better all-around to rely on a dumb system like a boss's orders, at least in local settings.

Well, "justice" and "fairness" are pretty great. A political theorist version of Coase might ask, If social justice is so great, why is there so much unfairness? The answer is a version of transaction costs: figuring out what is just in every instance and to the third decimal point is actually unfair. The traffic system in Desert Town is Pareto inferior--that is, literally everyone is strictly worse off--to a dumb system such as traffic signals, in which lanes take turns based on red and green lights. That's an example of rule utilitarianism: with traffic lights, the longest anyone must wait is one minute. With the "stop and justify" system, the shortest anyone must wait is five minutes. Everyone is better off under the fair-but-unjust system...