Feinberg and the Libertarians on Desert

In his landmark essay “Justice and Personal Desert,” Joel Feinberg explores what it means for a person to deserve a certain type of treatment by others. Though not himself a libertarian, Feinberg’s work is firmly in the liberal tradition—his best known and most influential work, the four-​volume The Moral Limits of the Criminal Law, engages extensively with John Stuart Mill and his “harm principle”—and his work on desert is part of a conversation involving several important liberal and libertarian philosophers.

Feinberg is the pivotal figure in a discussion on desert spanning at least four decades and involving multiple key figures in libertarian political thought—figures like John Hospers, Robert Nozick, and David Schmidtz—but perhaps because he himself was not a libertarian, Feinberg’s work is less well understood and appreciated by libertarians than it probably should be.

I will first lay out what Feinberg has to say about desert, and then explain how “Justice and Personal Desert” fits into that broader, decades-​long discussion.

Feinberg claims that “[t]o say that a person deserves something is to say that there is a certain sort of propriety in his having it.” (Feinberg 1970, p. 56) What kind of propriety? “If a person is deserving of some sort of treatment, he must, necessarily, be so in virtue of some possessed characteristic or prior activity” (p. 58) that makes that person satisfy “certain conditions of worthiness” (p. 57). “It is impossible, however, to list the necessary and sufficient conditions for personal desert in the abstract, for the bases of desert vary with the mode of deserved treatment.”

In the subsequent section of his essay, Fienberg lays out an incomplete typology of treatments one might deserve, and explores the types of necessary and sufficient conditions associated with those treatments.

The first category involves “polar” desert, i.e. situations where a person “can be said to deserve good or to deserve ill” (p. 62). Feinberg says this category, which includes “rewards and punishments,” “praise, blame, and other informal responses,” and “reparation, liability, and other modes of compensation” (p. 62) is central to discussions of retributive justice

The second category involves “non-​polar” desert. With this category, “we divide persons not into those who deserve good and those who deserve ill, but rather into those who deserve and those who do not.” (p. 62). Feinberg says this category, which includes “awards of prizes” and “assignments of grades,” is central to discussions of distributive justice.

“[A] person’s desert of X is always a reason for giving X to him,” writes Feinberg, “but not always a conclusive reason” (p. 60). Other types of claims need to be considered before producing a final judgment.

Feinberg contrasts two other concepts against desert. These are eligibility (“a kind of minimal qualification, a state of not being disqualified,” [p. 57] a necessary but not sufficient condition someone must satisfy) and entitlement (the “satisfaction of a sufficient condition for, say, an office or prize” [p. 57]).

Take the case of a presidential election in the United States: to be eligible to win, “one must be thirty-​five or older and a ‘natural-​born’ citizen” (p. 57); to be deserving of winning, a candidate “must be intelligent, honest, and fair-​minded; he must have a program which is really good for the country and the tact and guile to make it effective” (pp. 57-8); but one becomes entitled to the office of President of the United States “by winning a majority of the electoral votes” (p. 57).

Throughout the piece, Feinberg identifies entitlement with having a right to something, and points out the ways in which desert and entitlement can conflict, usually with entitlement claims trumping desert claims.

Therefore, on Feinberg’s account, it is not the case that justice demands everyone “gets what they deserve,” as the saying goes. In the case of a footrace, for example, the runner who crosses the finish line first is entitled to the first place trophy, even if another runner was more “deserving” in the sense of being faster, only failing to win due to a stroke of bad luck, like a mid-​race injury. In such a case, justice would demand that the faster but unlucky runner not get what they deserve.

Feinberg offers an appendix to his essay with the heading “Economic Income as Deserved.” Here, Feinberg dismisses the possibility that one’s economic income can be said to be deserved as one deserves a prize or a reward, and concludes that it makes more sense to think of income as being (“in part”) deserved in the sense of deserving compensation:

Feinberg continues:

This conclusion leaves libertarians, to the extent that they find differences in income not morally problematic per se, with their hands somewhat tied. Either they must refute Feinberg on the question of whether people can deserve unequal incomes for reasons other than being compensated for the hardships inherent in the work they do, or they must defend income differences on grounds unrelated to desert. Neither approach strikes me as necessarily futile—though the latter strikes me as much more promising than the former—but Feinberg has, I think, nonetheless successfully established the terms of the debate.

Feinberg’s essay is in part a rebuttal to libertarian philosopher (and 1976 Libertarian Party presidential candidate) John Hospers’s discussion of desert in Human Conduct: An Introduction to the Problems of Ethics (Feinberg 1970, p. 56 fn. 2). Feinberg thought that Hospers erred in restricting his discussion of desert to deserving punishments or rewards. Feinberg also disagreed with Hospers on the centrality and importance of desert to the concept of justice. Whereas Hospers thought “Justice is getting what one deserves; what could be simpler?” (quoted in Feinberg 1970, p. 56 fn. 3), Feinberg thought that desert “represents only a part, and not necessarily the most important part, of the domain of justice” (Feinberg 1970, p. 56). Feinberg also criticizes the way Hospers employs the concept of desert when discussing wages and salaries (pp. 59-60, fn. 8). This criticism motivates Feinberg’s positive argument about distributive justice in the appendix to “Justice and Personal Desert” as discussed above.

The distinction between “entitlement” and “desert” is important to the political philosophy of Robert Nozick, and in making that distinction he explicitly employs Feinberg’s senses of the words “desert” and “entitlement” as outlined in “Justice and Personal Desert” (see endnote 10 to chapter 6 of Anarchy, State, and Utopia). Nozick makes entitlement claims the center of his theory of justice-​in-​holdings in Anarchy, State, and Utopia, which makes sense given Feinberg’s linking of entitlement claims with rights and the centrality of individual rights to Nozick’s political thought. Feinberg’s appendix sets the stage for the Rawls-​Nozick debate on distributive justice.

Libertarian philosopher David Schmidtz replied to and built on Nozick and Feinberg’s discussion of desert and justice-​in-​holdings in “How to Deserve.” The essay is especially concerned with whether people can properly be said to deserve their endowments (their inborn talents, resources and opportunities afforded them by chance, etc.), and, if they can, how they can. While agreeing with Nozick that “it would be a mistake to assume” that a person “needs to deserve his natural assets in order to be entitled to them,” (Schmidtz 2002, p. 792), Schmidz splits with Nozick (and Feinberg) over the question of whether people can deserve their natural assets. Nozick and Feinberg think they cannot, since a (non-​arbitrary) basis for desert must both logically and chronologically precede the deserved treatment, whereas Schmidtz defends “a non-​skeptical conception of desert” (p. 791) by which we can come to deserve natural assets and opportunities after the fact by how we use them, how we live our lives having received them. For Schmidtz, when we ask if someone deserves their endowments and opportunities, we often should answer that it is too soon to tell.

Schmidtz references Feinberg’s typology of “desert bases” (approvingly, while noting that it is incomplete and, Schmidtz thinks, unlikely in principle to ever be made exhaustive) (Schmidtz 2002, p. 775 and endnote 5) as well as Feinberg’s discussion of the concept of deservingness as applied to nonpersons (Schmidtz 2002, p. 777). Schmidtz also incorporates Feinberg’s work into his discussion of the morality of rewarding people for the contributions they make to projects we find useful (contributions of their efforts and talents, say). Following Feinberg, Schmidtz argues that we have good moral reasons of a consequentialist, though not utilitarian, type for approving of such rewards (Schmidtz 2002, pp. 787-8).

It would be a mistake to think that each of the subsequent works I’ve discussed here necessarily represents progress on the question of desert in some absolute sense. For example, Feinberg or Nozick could, in reply to Schmidtz, stipulate that the kind of deservingness they care about has to be established ex ante, and this sort of reply might be a good one; it depends on the work they want their conception of desert to do, and on whether such a stipulation would amount to conceptual gerrymandering. It is likely, furthermore, that while subsequent contributions to the conversation can and do correct old errors, they will also introduce new ones.

On the other hand, it is clear that each subsequent author has benefitted from engaging with the prior work in the field. They disagree in mutually clarifying ways, which leaves the resulting arguments more refined, more nuanced than they otherwise would have been—better at least on certain margins. This limited kind of progress is one reason why Nozick is right that “[t]here is room for words on subjects other than last words” (Nozick 1974, p. xii).

Surveying the debate is a good reminder, furthermore, that while libertarians can plausibly call ourselves the “true” heirs of classical liberalism, libertarianism is nevertheless part of a broader liberal tradition with many modern exponents—Feinberg being a prime example. Amidst a rising tide of illiberalism, libertarians would do well to remember that we have friends.