Bureaucratic respectful equality

Introduction

Ian Carter’s (2011b) article does three things. It lays out a problem, which has not yet been solved. It offers a solution. And then it discusses some of the implications of this solution. ¹ I am going to focus on the third of these things, though I shall begin by sketching the first two.

The problem that the article discusses arises because, while egalitarian theories prescribe equality, people vary on almost any measure. We need to find a feature in virtue of which persons are to be treated equally. If we can’t find such a feature, then our theories about equality seem more arbitrary and less justified. The feature we are seeking is one that persons possess equally: if people possess the feature differently, then they ought to be treated differently. But it seems that there isn’t a relevant feature that we all possess equally.

Perhaps we can say that we all possess some important feature, such as rationality, to some sufficient degree. We may vary in how far we pass the threshold, but we equally possess the property of at least meeting it. However, justifying any one level is problematic, for two reasons. First, there are difficulties in justifying the selection of any particular level. It would not do to justify some level simply because we want to reach an egalitarian conclusion. That would be circular. It also wouldn’t do to justify some level on the grounds that what matters is the possession of the variable property on which the threshold sits. This would not tell us what is special about the threshold, as opposed to the variable property. Second, even if that problem can be avoided, we would need to explain why all the other features of individuals do not count in our assessment. Even if we do possess something important equally, we possess many other important things unequally. An explanation of our basic equality must explain why we should ignore many features of individuals that do seem to have moral significance.

The solution Carter offers is compelling. The basis of a certain sort of respect is also the basis of equality. We show opacity-respect to X when, once X has reached a certain level of capacities, we refuse to consider further his or her capacities or internal endowments. There can be value in deliberately ignoring what would otherwise seem pertinent. A commitment to equality reveals a commitment to the value of displaying this form of respect in the relevant sphere. For instance, if one believes in the value of more equal distributions of goods, then one can justify this belief by appeal to the idea that, in matters of distributing goods, we ought, for reasons of respect, to abstain from making judgements about persons, but rather should treat them in this matter just as persons.

This insight supplies an independently justified threshold, and so it avoids the first problem I described, that of circularity. This is because the threshold is justified by the independent requirement of respect. And the insight also gives a reason not to take account of other properties of individuals, since it explicitly demands that features of a person that might otherwise be relevant are ignored. So it avoids the second problem, that of excluding other features.

Next, Carter draws some striking practical conclusions. Egalitarianism, properly construed, must not imply that we take direct account of people’s internal capacities. All sorts of egalitarian theories do require that we consider people’s internal capacities. These views should be rejected, since they fail the ‘opacity test’: ‘a practice passes the opacity test if and only if the carrying out of that practice neither constitutes nor presupposes any violation of the requirement of opacity respect’ (Carter, 2011b: 561). For instance, the view that autonomy ought to be equalised is ruled out. This is because ‘it seems inevitable that autonomy will qualify as one of the scalar properties on which the range property of moral personality supervenes, or will at least be partly constituted by one or more of such scalar properties’, and a demand that we equalise autonomy would therefore involve both a commitment to ignoring differences in autonomy, and a commitment to variations in people’s autonomy (Carter, 2011b: 563). The goal of equality of people’s overall endowments falls to similar reasoning, as does the capability approach, and luck egalitarianism (Carter, 2011b: 563–570). Thus, the requirement of opacity respect is a ‘surprisingly powerful filter’ on what conception of equality we should select as the correct one (Carter, 2011b: 570).

The idea of opacity respect has independent force. We can see and feel opacity disrespect in practice. When an authority arranges its rules so that they respond to our specific abilities, we feel invaded. We ask, ‘who are they to judge us?’ Arguably, workfare requirements have met with especially stiff opposition due to a sense that it is disrespectful to require persons who are entitled to state benefits to prove personal and sometimes shameful facts about themselves, such as the fact that they are clinically depressed according to a predetermined points scale, or are ‘virtually unable to walk’ for reasons of physical and not psychological disability (for example, Gentleman, 2011). They may be required to repeat demonstrations of these facts, under scrutiny, at public tribunals. These processes force public revelations about matters that respectfulness would leave for the private sphere.

Despite this force, I will present a challenge for Carter’s position. I will argue that his position must (a) abandon the dual role of the opacity test as both foundational and as providing an active filter on principles (sections 2, 4 and 5); (b) restrict the scope of the opacity test in a way that seems arbitrary and also understates the disvalue of widespread private disrespect (sections 3 and 6); or (c) commit to an eccentric egalitarianism that avoids an economic life that is ever at the same time social (section 7).

The disrespect-charge

Carter is not the only author to have deployed the value of respect in order to argue against certain proposed principles of equality (for example, Wolff, 1998). The disrespect-charge, as I shall call it, argues that certain principles of equality violate the requirement that we show respect to one another. The relevant principles of equality are those that, in determining what to equalise, take direct account of people’s exercise of agency or central capacities. Such principles are exemplified by, but not limited to, those referred to as ‘luck egalitarian’. For instance, take a principle that demands equality in our levels of opportunity for welfare. To implement that principle, it seems that we would require a complicated state apparatus that could make accurate judgements about individuals’ own welfare levels, and about individuals’ degrees of responsibility for their own welfare levels, incorporating judgements about people’s capacities to advance their own wellbeing. Call these judgements internal judgements. Such judgements strike us as intrusive, patronising and disrespectful. So, it is argued, we ought to reject equality of opportunity for welfare, and other similarly invasive principles, as illegitimate descriptions of our egalitarian concerns. The principles demand institutional structures that are unacceptable to egalitarians.

For Carter (2011b), the force of the disrespect-charge arises from the fact that it is internal to egalitarianism. It is a charge of ‘conceptual incoherence’ (564). If the point was merely that equality and respect can come into conflict, then the luck egalitarian could legitimately respond by saying, as G.A. Cohen does, that the demonstration of a conflict between two values does not, by itself, undermine one’s conception of any one of those values. ² However, according to the disrespect-charge, the very same egalitarian impulse that tells us that it is fairer if people have more equal prospects, also tells us that it is unacceptable to foster demeaning judgements of people.

‘Through the eyes of the state’

There are contexts in which individuals as private persons should treat one another with opacity respect, and there are contexts in which they positively ought not to do so. It is not difficult to think of examples: compare the way one behaves towards strangers on a bus, to the way one behaves towards one’s close friends. There are, similarly, contexts in which the state should be blind to a person’s specific attributes, and contexts in which it would be wrong for the state to take that attitude. For Carter, the contexts in which opacity respect is appropriate are those in which agents should be treated just as agents. One such context is pertinent: ‘the relation between political institutions (in their role as guarantors of basic political entitlements) and citizens (considered as bearers of those entitlements)’ (Carter, 2011b: 560). Thus, Carter also argues that the state is a special case: ‘the state owes citizens a stronger form of opacity respect than that which individuals owe to each other’ (Carter, 2013b: 33). Call this the ‘strong opacity test’. Carter explains with reference to several core contractualist liberal ideas:

that society is a system of social cooperation, that justice concerns the proper distribution of the benefits and burdens of that social cooperation, and that the tasks of the state include the coercive enforcement of that distribution … the ‘fact of pluralism’ and the consequent view that the state should abstain from evaluating citizens’ capacities, conduct or situation in terms of any but the thinnest conception of the good. (Carter, 2013b: 33, italics added)

A key issue now is, when does the state look at you? What is the referent of the metaphor of the state’s eyes? In applying respect as a filter on our practices, this is a question about who or what is expressing the relevant kind of respect or disrespect: what would count as a state evaluating an individual’s basic agential capacities? There are two kinds of answer. One kind of answer is formal or bureaucratic. It says that the relevant sort of expresser of disrespect is any formally designated representative of the state, acting in his or her capacity as such. A state shows opacity disrespect when and insofar as official state-agents show attitudes of opacity disrespect. The other kind of answer is functional. It designates the relevant kind of expressers of disrespect as those agents acting in capacities that are associated, in some given way, with state activities. ³

There are serious objections to limiting the strict version of the opacity test only to official state employees. Representatives or agents of the state do not always have formal state employment contracts. Government may outsource elements of its functions to contractors. We would baulk at the possibility that the employees of the contractor can legitimately make and act upon private judgements where civil servants cannot: objections to the practices of an outsourced benefits agency are never met with the response that the demeaning judgements involved are only private judgements, and are therefore not (unacceptably) disrespectful. Similarly, it does not seem worse, holding treatment equal, to be personally insulted by a Police Community Support Officer than by an agent of a private security firm that is acting on behalf of the police force.

The second, functional, account is the natural one. It is not deferent to states’ self-designations. That account draws within its scope agents who, in function if not in name, are state actors. That account also raises more questions. What exactly is the given function? I return to this issue shortly. First, let us consider more closely the workings of the disrespect charge, with the purpose of better understanding the force of the claim that opacity respect is the grounds of equality, and in particular, how Carter can answer the question of where the state’s eyes are located.

The disrespect-charge and empirical claims

Recall, the disrespect-charge says that no principle should be endorsed as egalitarian whose implementation would be disrespectful. In its crude form, the line of reasoning followed by the disrespect-charge is too quick. The conclusion turns around the idea that putting in place a principle involves certain outcomes. But whether or not the implementation of a principle involves some given policy must partly be a practical issue. Here is an example. Suppose we are considering the specific principle of ‘equal opportunity for welfare’. Does this principle demand intrusive and disrespectful judgements? It does if the following empirical claim is true:

Equality of opportunity for welfare would be most effectively implemented by putting in place an institution whose representatives make many internal judgements about persons.

This may be of little interest if the empirical claim is obviously true, as some have insinuated. ⁴ However, there are several sorts of reason to think that the claim could be false. I will mention two. First, anyone very sceptical about the efficacy of large bureaucracies might argue that the creation of a body devoted to assessing and then equalising each individual’s responsibility for his or her own welfare levels would in practice undermine its own goals. Perhaps the bureaucracy would inevitably become self-serving and inegalitarian – and perhaps its desired outcome would in fact be better approximated by a simpler, less involved redistributive taxation scheme based only on earnings. Or perhaps the information and coordination problems faced by any centralised bureaucracy are so great that, even if the bureaucracy’s constituents are fully cognisant of its rules and willing to act upon them, the goal of equal opportunity would still be poorly served, and a better job would be done by an organisation that does not directly attempt to measure people and their characteristics. The disrespect-charge denies these possible facts.

Second, perhaps there is a possible scheme that responds to people’s internal states through an impersonal mechanism. There may be feasible institutional schemes that are effective at collating and aggregating information without a grand central brain. Some socialist literature provides examples (Cohen, 2009; Wilkinson, 2000). We may picture a society organised along the lines of G.A. Cohen’s camping trip, a society that achieves equality in a respectful manner using, where appropriate, systems that do not reveal facts about people that should remain private. Where people are motivated in the way that Cohen supposes, such systems are easy to imagine. If people will generally provide, more or less, for free, the level of labour time that they would provide under a selfish scheme of incentives, then they can also be expected to take, more or less, what they are due, without coercion from the state, and in particular, without the internal judgements that may be involved in state coercion.

There are, then, broadly, two (compatible) ways in which one might proceed in denying the empirical claim at work:

One can claim that we have reason to be sceptical about the relative capacity of bureaucratic mechanisms to achieve sensitivity to persons’ internal states. This may be for reasons of (i) structure (such as insurmountable coordination and informational problems) or (ii) inevitable non-compliance.

These two possibilities are consistent with each other, and one sometimes hears versions of both together. To deny the implicit empirical claim that I have identified, one may hold a strong version of either (a) or (b); that is, a forceful scepticism about bureaucracies or a forceful optimism about non-personal mechanisms. Alternatively, one may hold a moderate version of each of (a) and (b) together, with the cumulative effect that one is left with a forceful reason to deny the empirical claim at stake.

We should note that bureaucracies are not the only systems that make intrusive personal judgements. Public cultures of making such judgements can exist. One sort of decentralised socialist dystopia imagines neighbours and workers closely spying upon one another on behalf of the state. A centralised government is not necessary for such intrusions. We can conceive of a close-knit idealistic community, where each member knows all the others’ behaviours, abilities and inclinations, and where goods are shared among the members. ⁵ Perhaps the disrespect-charge could proceed by defending the claim that this latter kind of society would be the most effective way to implement equality of opportunity, and that such a society would manifest a great deal of disrespectful judgements. ⁶ I return to this point below, in section 6.

In general, it is at least conceivable that the implementation of some scheme that is very concerned with people’s internal states would involve fewer internal judgements than some scheme that is little concerned with people’s internal states. A claim that the respect requirement itself undermines principles of equality would smuggle in a claim about institutional design. ⁷ Put another way, the goal of equality of opportunity for welfare does not by itself imply, a priori, that the state ought to assess each person’s level of opportunity welfare, any more than utilitarianism implies, a priori, that the state ought to assess persons’ utility levels. The implementation is one thing, and the principle another.

Disrespect in principle

How does Carter deal with such possibilities, while retaining critical bite? One approach would be to deny them. Rather than taking that route, Carter narrows his scope, covering in the first instance ‘egalitarian practices’ and not, necessarily, ultimate principles. However, he intimates a connection between the two. In this section, I emphasise the deontological nature of the opacity test, and thereby the way the connection between the principle and its practice will function.

In explaining the relation of his view to ultimate principles, Carter writes:

The commitment to opacity respect does not rule out any egalitarian principles in a logical sense, considered in isolation from egalitarian practices. However, it does affect the plausibility of certain egalitarian principles indirectly, in its implications for the justifiability of given egalitarian practices. (Carter, 2011b: 561)

Note that the respect-requirement does not play a mere minimising role. If the test says only, ‘show no opacity-disrespect, beyond what is strictly necessary for the implementation of the principle’, or ‘minimise opacity disrespect, subject to other values’, then no principle is ever rendered unimplementable by the test. The test rules out principles and not just practices. Recall: ‘An egalitarian principle will lack a justificatory basis if, as a matter of contingent fact, there is no way of acting on it that passes the opacity test’ (Carter, 2011b: 561, italics in original). If the minimisation view is true, then the antecedent of that conditional is never met. The opacity test rules out some principles in its application to the actions or policies of an agent or institution. It says: Justified egalitarian principles do not, when one acts upon them, lead one to show opacity disrespect. Contrast this with the obvious alternative: In being enacted, justified egalitarian principles bring about states of affairs in which there is less opacity disrespect. That latter view may be intuitive for some. It posits a value – respectfulness – and demands that it is given its due. If some amount of disrespect would, other things being equal, bring about less disrespect overall, the ‘minimising’ view would countenance disrespect. ⁹ But that latter view is not Carter’s position. He holds that respect grounds other values – in particular, equality – and that it rules out some practices. The test has a deontological character.

In the next section, I set out an objection to Carter’s view that depends upon the deontological character of the opacity test. In the subsequent section, I show how his position has the resources to meet this objection, but that in doing so, it threatens absurdity.

An objection that the functional approach can meet

Given the extra limits placed upon states by the Carter’s position, it is possible that it will imply that a state of affairs would be improved were there more internal judgements, if their existence is a way of eliminating inappropriate state opacity disrespect. We may have a society with a culture of petty judgement; so long as it is not a culture of state petty judgement, or in any case is not a culture of petty judgements that are attached to a legitimate coercive practices, then the especially problematic kind of judgement that exercises Carter would be avoided. This is no merely theoretical supposition. Compare the following two attitudes:

the invasive internal judgements that might flourish in the widespread private philanthropy of a political economy that has a flat tax and a low universal basic income;

the invasive internal judgements that might flourish under a complex system of bureaucratic tax credits.

I will outline a problem with this implication. Suppose that we can choose between two kinds of polity. In the first, there is just enough state-originated disrespect such that the opacity test cannot be met, but citizens themselves are generally opacity-respectful towards one another. In the second scenario, if there is any state-originated disrespect, it is not attributable to state-agents in a way that violates the opacity test. But also in this second case, there is also a vast amount of private opacity disrespect. It seems that the second polity is preferable on Carter’s view. But that is extreme. Alongside the powerful institutional philanthropist, consider the judgemental community that privately ensures an ethos of equality of opportunity for welfare. In its practices its members say, daily, ‘we recognise that you are capable but have made irresponsible choices, and so you shall receive less’. Is that to be preferred to some comparatively trivially invasive bureaucratic process? This seems contrary to the spirit of the test, which on the present interpretation allows one’s fate to be determined with little outward dignity. Internal judgements might flourish in non-state apparatus. The problem for the opacity test is not merely that it holds that the disrespect of bureaucratic tax credits is inherently worse, but that there are cases in which a very small amount of the disrespect of bureaucratic tax credits is deemed worse than a very large amount of the disrespect of widespread private philanthropy.

How might we account for the problem of non-state disrespect? As we saw earlier, legitimate coercion is a function that motivates the stronger opacity test. ¹⁰ It might therefore be replied, in defence of the opacity test as the basis for equality, that the distributive practices of the judgemental philanthropic community are in effect coercive, and so are subject to the same strong test of opacity respect that is faced by state practices. I now turn to that idea.

The asocial economy

There are resources within his position that may allow Carter to dodge the extreme implication that state disrespect is heavily dispreferred, but at the cost of a surprisingly dramatic expansion of the territory of the opacity test. The proper reach of the strong opacity test may go beyond just (as I have argued it does) those with employment contracts with the state, or those acting as employees of state agencies, and also extend to actors within the economy itself, acting with no immediate state involvement.

How far are people acting merely as private citizens when they engage in economic activity? Perhaps those making exchanges of goods or labour are not engaging in direct acts of coercion – a status that would place them within the remit of the opacity test – but they nonetheless are properly construed as acting as agents of a power structure that itself is unchosen and therefore coercive in the relevant sense. This structure may be constituted by the backings of the market, including the institutions of property and contract law. If so, then the same reasons against disrespectful judgements in the case of the state may also apply in the case of trade. On this reading, the market is part of the sphere to which the opacity test applies, and agents qua economic actors can be agents of this sphere; individuals making economic transactions also fall under the opacity test. Moreover, in selecting an economic structure, states ought to select systems that eliminate personal judgements that would be made by actors within that system.

This would be a dramatic expansion of the implications of Carter’s view. It would imply that, just as we ought not to have a system in which who those distribute unemployment benefits make their decisions depend upon intrusive personal judgements of claimants, neither should employers make such judgements towards their employees, and nor should car salesmen, estate agents, bank managers, lawyers, retailers, or bar staff make such judgements about their clients. Transactions between people who recognise one another seem to be all but prohibited. In extremis, one would expect an economy that functions only through a series of anonymisation techniques: actuarial calculations, online transactions, decentralised currencies, collection boxes, and laws against data fusion. The point does not apply only to markets: if the structure of distribution is an element of the state, then on this expansive understanding of the opacity test, any version of that structure that involves internal judgements is prohibited.

To be sure, Carter resists this extreme implication. There are certain human relationships that are not the appropriate subjects of opacity respect and do not have equality as an appropriate feature: student–teacher relationships are one such kind of relationship; and interviewer–interviewee relationships may be another (Carter, 2011b: 556–557; Carter, 2013b: 31). Similarly, as we have seen, Carter is keen to argue that states face a stronger test of opacity respect. It seems, however, that because of the way distributive schemes must be selected, created and sustained, individuals view each other, in the relevant functional sense, through the eyes of the state, in their day-to-day lives, wherever they take part in economic activity. This threatens absurdity because it rules out a large portion of the internal judgements that make up our social lives. ¹¹ The alternative is to commit to a bureaucratic or formalistic reading of the scope of the opacity test – and we have seen that this brings its own problems.