Comparative Desert Vs. Fairness

In the recent book The Geometry of Desert, Shelly Kagan explores, with a rare degree of precision, how best to cash out two fundamental and widely shared intuitions. The first intuition says that virtuous people deserve to be doing well, and that less virtuous (or vicious) people deserve to be doing less well – and thus, that it’s good (other things equal) if virtuous people are doing well and if less virtuous (or vicious) people are doing less well (or even badly). The second intuition says that the distribution of the satisfaction of people’s desert claims across persons matters: that it’s good (other things equal) if people’s desert claims are satisfied in accordance with the demands of interpersonal fairness. The former intuition states the basis of what Kagan calls ‘absolute desert’. The latter articulates the basis of what he calls ‘comparative desert’. I advance an internal critique of Kagan’s conception of comparative desert; I argue that it contravenes the demands of interpersonal fairness in the domain of desert, and so fails on its own terms.     

Expertise, Counterfactual Thinking, and Fairness Perceptions: A Test of Fairness Theory

While fairness theory (Folger & Cropanzano, 1998, 2001) suggests perceptions of injustice are due to accountability judgments and counterfactual thinking, few studies have examined the influence of contextual variables on counterfactual thinking and the mediating role of counterfactual thought. Further, the few studies that have examined this have resulted in mixed findings, which may be attributable to the methodology used. The present research utilized a unique approach to examine fairness theory: the double-randomized design. Study 1 showed that agent expertise is related to would and should counterfactual strength and the generation of other-attributed counterfactuals (X → M). Study 2 showed that would and should counterfactuals are related to fairness perceptions (M → Y). This study integrates previous research examining fairness theory and highlights the importance of counterfactual thoughts on fairness perceptions when a person’s level of expertise is made salient. Additional implications for research and practice are discussed.     

Justice,Fairness, and World Ownership

It is a central tenet of most contemporarytheories of justice that the badly-off have aright to some of the resources of the well-off.In this paper, I take as my starting point twoprinciples of justice, to wit, the principle ofsufficiency, whereby individuals have a rightto the material resources they need in order tolead a decent life, and the principle ofautonomy, whereby once everybody has such alife, individuals should be allowed to pursuetheir conception of the good, and to enjoy thefruits of their labour in pursuit of suchconception. I also endorse the value offairness, whereby the right person orinstitution makes the decision as to whether tobring about justice.I show that justice and fairness can besatisfied only if we all enjoy a combination ofprivate and collective rights over the world.In making that case, I shall argue that the setof ownership rights I advocate differs fromreadily available conceptions of restrictedprivate ownership in two important respects.First, it is such that in some circumstances,two individuals or more can have control rightsover the same property at the same time, not,as is standardly the case in legal systems, bycontracting with one another (through gifts andjoint purchase), but simply on grounds ofjustice. Second, it allows that, if necessary,property-owners be expropriated from theirproperty without compensation.     

Resource Priority,Fairness, and Equality-Efficiency Compromises

A central issue in theories of social justice is the potential conflict between equality and efficiency in the distribution of resources. We suggest here that resource priority is a key factor that moderates the perceived fairness of equality/efficiency compromises in resource allocation. Participants were presented with scenarios involving a policy change that pitted equality against economic efficiency in the allocation of a variety of resources that differed in their importance levels (basic versus non-basic). We found that participants gave more weight to efficiency considerations at the expense of equality in distributing non-basic (higher-level) resources than in distributing basic resources. We discuss the priority hypothesis in connection with norms of justice, human motives, the need hierarchy (deficiency versus growth needs), the consumption of basic versus non-basic resources, and the legitimacy of allocation policies. The paper is based on portions of doctoral research conducted by Eviathar Matania under the supervision of Ilan Yaniv.     

Progressive Taxation,Fairness, and Compliance*

This paper examines the preferences for income tax progressivity, other tax fairness issues, and tax compliance of a national sample of nearly six hundred heads of U.S. households. The results reveal that mean public preferences for fair tax burdens are close to actual effective tax rates; however, the similarity between average preferred and actual effective tax rates masks an underlying schism between three groups: (I) those who believe tax rates should be higher for upper income persons (steep progressives), (2) those who prefer mildly progressive tax rates (mild progressives), and (3) those who believe tax rates should be flat (“flatraters). The analysis includes demographic and fairness profiles associated with tax rate preferences. Attitudes about the overall fairness of the income tax, exchange equity with the federal government, government spending, tax complexity, and tax compliance behavior are examined. In general, respondents' stated preferences for vertical equity approximate the current distribution of the income tax burden, yet there is a relatively high consensus that the income tax is unfair, especially with regard to the ability of wealthy taxpayers to exploit loopholes to avoid paying their fair share, and that respondents regard their own tax burdens as unfair. These results suggest that providing information to the public about the relative amount of income taxes paid by upper income individuals and the effects of recent limitations on “loopholes” could improve public attitudes about the fairness of the income tax and tax compliance.     

Procedural Fairness,Blame Attributions,and Presidential Leadership

The removal of the President of the United States from office is a rare and significant event. This study investigated the influence of procedural fairness and blame attributions on punishment and support attitudes during the 1998 impeachment of President Clinton. This study assessed the influence of the procedural fairness of Clinton's behavior, procedural fairness of the Kenneth Starr/Congress investigation, satisfaction with Clinton policies, and blame attributions on punishment attitudes (i.e., whether Clinton should be removed from office) and support attitudes (i.e., whether individuals would vote for Clinton if an election were held today). Both the procedural fairness of Starr/Congress and procedural fairness of Clinton' behavior significantly influenced punishment and support attitudes. Procedural fairness of Clinton had indirect effects on punishment attitudes (through perceived blame of Clinton) and direct effects on support attitudes. Procedural fairness of Starr/Congress had direct effects on both punishment and support attitudes.     

Desert,retribution, and corporate criminality

The role of commensurate deserts in the punishment of corporations and their agents has received little attention to date. Those who have written on desert and corporate crime dismiss it on the grounds that retributive rationales, which incorporate notions of desert, are not applicable to corporate offenses and because desert, with its focus on the moral opprobrium attached to criminal conduct, is not fitting for offenses which are regulatory and thus “morally neutral.” This essay argues that although retribution is a viable justification for corporate punishments, it need not be the only or even the primary justification for punishment for desert to be applicable in the distribution of corporate sanctions. It also questions the position of moral neutrality, citing empirical evidence of the public's perceptions of the seriousness of corporate criminal activity.     

Desert, Justice and Capital Punishment

Our purpose in this paper is to consider a procedural objection to the death penalty. According to this objection, even if the death penalty is deemed, substantively speaking, a morally acceptable punishment for at least some murderers, since only a small proportion of those guilty of aggravated murder are sentenced to death and executed, while the majority of murderers escape capital punishment as a result of arbitrariness and discrimination, capital punishment should be abolished. Our targets in this paper are two recent attempts, by Thomas Hurka and Michael Cholbi respectively, to defend the view that ‘levelling down’ (that is, reducing the punishment imposed on a criminal from the punishment he absolutely deserves to a less severe punishment in order to achieve proportionality relative to the criminals who have escaped the punishment they absolutely deserve) is, in the context of capital punishment, morally permissible. We argue that both Hurka and Cholbi fail to show why the arbitrariness and discrimination objection impugns the death penalty.

Kant on Wrongdoing,Desert, and Punishment

Law and Philosophy -     

On Fairness and Efficiency

Vanessa Finch, Corporate Insolvency Law – Principles and Perspectives, Cambridge: Cambridge University Press, xxxix + 616 pp, pb £35.00.     

The Interplay Between Greed,Efficiency, and Fairness in Public-Goods Dilemmas

The Greed–Efficiency–Fairness hypothesis (H. A. M. Wilke, In European Review of Social Psychology, Wiley, New York, Vol. 2, pp. 165–187, 1991) states that people in resource dilemmas are greedy and wish to defect, but that greed is constrained by preferences for efficient resource use and fair distributions. This paper reviews research where the GEF hypothesis was generalized to public-goods dilemmas. Results from both surveys and experiments on people's willingness to contribute to resources for social services were interpreted in light of the GEF hypothesis. Whereas earlier research on social dilemmas and fairness considerations have focused on the correlation between estimated fair and actual cooperation rates, the present results provide an extension where cooperation rates are influenced by perceived fairness of how a resource is distributed. Two experiments contribute further insights into the interplay, in terms of effects on cooperation, between greed, efficiency, and fairness. The collective consequences of individual choices were either highlighted or not (Experiment 1) and the outcome structure in prior social dilemma tasks was either collectively or individually framed (Experiment 2). These manipulations influenced (a) cooperation rates and (b) the extent to which decisions were based on greed, efficiency, or fairness.     

Uncertainty,Fairness Perceptions,and Job Satisfaction: A Field Study

Following uncertainty management theory, we argue that when people face increased uncertainty, fairness becomes more important to them and judgments of fairness affect their reactions more strongly. The organizational field study reported here examines the effects of uncertainty about performance standards and appropriate behaviors on the relationship between fairness and job satisfaction. Results reveal that uncertainty moderates the positive relationship between fairness perceptions and job satisfaction such that the more uncertain people are about performance standards and appropriate behaviors, the stronger the relationship between fairness and job satisfaction. Further results reveal a significant moderating effect of uncertainty specifically for procedural fairness and interactional fairness. We discuss the implications of our findings for the uncertainty management model.     

法律认知和法律原则：情感、效率与公平

情感、效率、公平是人们认知活动中惯常的三个进程。对应这三个进程,人们对法律的认知有一些基本的原则。这些认知互动既可能形成社会自发秩序,也可能为法学提供一个基于认知背景的分析框架,有助于法学应对实践问题。“公平主导”的一个简单回答是,面对不同场合,情感、效率、公平三种进程被激活的程度不同。大体上,家庭场合激活情感,工程场合激活效率,市场和法律则更激活公平。在实践中,公平主导的法律原则由于比较接近主流社会认知,所以法律规范在社会中往往可能“自执行”,无需全靠外界监督或者激励。公平原则也有其自身的局限。虽然规范和原则很重要,是社会秩序的母体。但是,公平原则并不能解决所有问题。缺乏制度上的法治,光靠情理法是不足的。所以现代社会形成了规则化解决纠纷的机制,这就是二阶意义上的法律。     

论刑事诉讼中实体公正与程序公正之关系

程序公正近年来在我国法学理论界引起很大争论与探讨,就刑事诉讼中实体公正与程序公正之关系,各种观点百家争鸣,而该问题不仅为诉讼理论问题,且关系到诉讼中人权保障、诉讼模式等一系列实质内容,但有些提法抛开法律文化背景与法制现状,一味强调程序优先或过分坚持实体优先,有失偏颇。     

Affect and Fairness in Economics

A strained relationship exists between mainstream economics and ethics. Over the last decade, behavioral economists have strongly argued for the importance of fairness in motivating behavior, based on substantial experimental evidence. Two main approaches to the modeling of fairness have been proposed: the outcome-based inequity aversion approach, and the intention-based reciprocity approach. Both approaches have been quite successful in explaining the experimental evidence. Nonetheless, this paper questions the role that is assigned to fairness in these models and the way fairness is incorporated, using recent experimental findings concerning emotions and fairness perceptions. The analysis supports the view that feelings are important for justice, also from a policy perspective, and pleads for closer attention being paid to the functioning of emotional brain systems.

Fairness in Context

This article is a contribution to the occasional series dealing with a major book that influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, and André-Jean Arnaud.
It describes the author's original encounter and subsequent dialogue with Bureaucratic Justice , by Jerry L. Mashaw which transformed his thinking about administrative justice and shaped the research he conducted over the next 25 years. The article assesses the strengths and weaknesses of Mashaw's approach to administrative justice, describes the author's attempts to modify and extend Mashaw's approach, outlines four case studies conducted by the author, and describes how the United Kingdom government has recently adopted an approach to administrative justice that is very similar to Mashaw's. The article concludes by considering the implications of Mashaw's approach for researchers and policy makers who wish to promote the idea that governments should attempt to treat people fairly.     

Fairness in Bargaining

This paper uses historical and contemporary philosophical discussions of fairness to present a structural approach to the definition of fairness. After establishing a set of standards (not a specific definition), we assess the impact of fairness in negotiations and bargaining. Our analysis concludes that truly fair behavior is absent in bargaining and negotiations. Instead, behaviors that have been called just can also be characterized as self-interested. Our review suggests that the term fairness has been used rather loosely, as a convenient label or as a more palatable alternative to self-interested explanations for an individual's choices. For reasons of both parsimony and accuracy, we recommend that the self-interest of the actors be carefully considered before calling their bargaining behavior fair.     

既然当了和尚,那就撞好自己的钟

作为第一届“钱端升法学研究成果奖”的获奖者之一,我感谢各位评委;感谢多年来一直以各种方式———包括批评———支持我的学界朋友和同志,首先是但不仅仅是法学界的;还要感谢广大的读者。我会继续努力,坚持对中国社会和法学的忠诚、自信、好奇和敏感,深入地研究中国问题,总结     

Revisionism and Desert

Revisionists claim that the retributive intuitions informing our responsibility-attributing practices are unwarranted under determinism, not only because they are false, but because if we are all “victims of causal luck”, it is unfair to treat one another as if we are deserving of moral and legal sanctions. One (moderate) revisionist strategy recommends a deflationary concept of moral responsibility, and that we justify punishment in consequentialist rather than retributive terms. Another (strong) revisionist strategy recommends that we eliminate all concepts of guilt, blame and punishment, and treat dangerous criminals as we treat people with contagious diseases. I argue against both strong and moderate revisionism that (1) it is not unfair to hold persons desert-entailingly responsible (in a weaker sense of ‘desert’) insofar as they take an interest in being treated as appraisable, and (2) that it is unfair to persons not to treat them as desert-entailingly responsible (in this weaker sense) contrary to their interests in being treated as such. The interest-based argument, I conclude, give us a justification for communicating retributive attitudes, but may still require a weak revision of our retributive practices, in the direction of a communicative theory of punishment.