Opacity respect,bureaucracy and philanthropy: A response to Nathan

Opacity of what?

In the article ‘Respect and the basis of equality’ (Carter, 2011), I suggested that opacity respect was the appropriate attitude to show to persons considered simply as moral agents, where a moral agent is a being that possesses certain capacities for reason, planning and action. I left open exactly what the relevant agential capacities were, but specified that the term ‘internal endowments’ should be understood as singling out precisely those capacities upon which egalitarians say the relevant range property supervenes (Carter, 2011: 552). ¹ Thus, for example, luck egalitarianism fails my proposed ‘opacity test’ to the extent (and only to the extent) that its application requires assessments of precisely those properties that are supervened upon by the range property that in turn grounds the luck-egalitarian’s commitment to distributive equality.

I also left open exactly when – that is, in which kinds of relation – it is appropriate to treat persons simply as moral agents and therefore to show opacity respect towards them. It is plausible to suppose that there are some relations in which opacity respect, at least concerning certain specific capacities, is not an appropriate attitude: in some kinds of relation we appropriately treat each other as equals on the basis of a shared range property; in others, we appropriately treat each other as unequals on the basis of scalar properties underlying that same range property. ² Opacity respect serves to ground those relations in which we appropriately treat each other as equals. I further suggested that, from the point of view of the political liberal, opacity respect is a plausible requirement of the relation between political institutions and citizens and that this requirement explains the importance, for the political liberal, of equality in the public sphere.

Notice that, up to this point, the idea that citizens are equals in the eyes of the state depends only on the state’s viewing individual citizens as being in possession of the range property of moral personality. Following Rawls, we have so far identified only one range property, moral personality, which supervenes on certain basic agential capacities. On the Rawlsian account, this single range property serves to ground a political conception of egalitarian justice.

In the article ‘Basic equality and the site of egalitarian justice’ (Carter, 2013), I presented an alternative view according to which a full account of equality in the public sphere depends on something more than the range property of moral personality. According to this alternative view – which is, again, a liberal view – the state owes citizens a stronger form of opacity respect as a way of conferring dignity on citizens in the face of the extensive powers accorded to the state through the social contract. In light of this stronger form of opacity respect, an additional range property of citizens gains moral salience in the eyes of those acting on behalf of the state. Such a range property might be that of ‘being a potential contributor to society’, or ‘being a political agent’. The resultant ‘twofold’ account of basic equality depends on our identifying a set of basic agential capacities supervened upon by the range property of moral personality and a set of non-basic agential capacities, including various talents, skills or political competences, supervened upon by some further range property such as ‘being a potential contributor to society’ or ‘being a political agent’.

The purpose of this alternative analysis was to contribute to the discussion between ‘dualists’ such as Rawls and ‘monists’ such as GA Cohen (2008) regarding the ‘site’ of egalitarian justice. I suggested that the force of Cohen’s challenge depends, at least in part, on Rawls’s having identified only one range property in order to ground both the less demanding duties of individuals and the more demanding duties of political institutions. If, instead, we identify two kinds of opacity respect – the first required in interpersonal relations and the second required in relations between the state and citizens – we would seem to have a more solid basis on which to say that individuals have more limited egalitarian duties whereas the state has stronger egalitarian duties in virtue of its required recognition of further range properties. One might say, for example, that citizens considered as potential contributors to society are entitled to the highest sustainable basic income, or that citizens considered as political agents are entitled to equal voting power.

In order for the twofold account to work, it must be possible to distinguish clearly between basic and non-basic agential capacities, and the two kinds of capacities must be sufficiently independent of one another to warrant the claim that the assessment of one does not necessarily imply the assessment of the other. I cannot justify these presuppositions here, but they are not implausible. Consider, for example, the view that the range property of moral personality supervenes on the following set of basic capacities: the cognitive capacity to identify ends and to discriminate between them when they conflict; the cognitive capacity to identify adequate means to given ends; and the volitional capacity to pursue ends, including strength of will and the ability to manage one’s emotions (Cholbi, 2017; Quong, 2011). These capacities are distinct from, and do not necessarily correlate with, the ability to engage in sophisticated mathematical reasoning, to play the piano, to understand and construct mechanical devices, to understand or formulate a coherent foreign policy or to lead others – to name just a few of the non-basic capacities that might, on this twofold account, qualify as capacities grounding the range property of ‘being a potential contributor to society’ or ‘being a political agent’. High levels of the above-mentioned basic capacities obviously do not entail high levels of the non-basic ones; and the converse, though less obvious, also seems to be true in light of the fact that people can excel in terms of one or more of the above non-basic capacities and yet make a mess of their own personal lives.

Dualism does not have to take the specific form I defended in my 2013 article. Opacity respect for basic agential capacities might be understood as a requirement only for the state and not for citizens. There would then be no need for another kind of opacity respect to differentiate between the respect owed by the state to citizens and the respect owed by citizens to each other, since citizens would not owe opacity respect to each other. Call this account of basic equality the ‘state-only’ dualist account, in contrast to the ‘twofold’ account I defended in the 2013 article, where the state must show opacity respect to citizens in virtue of some non-basic agential capacities while citizens are required to show opacity respect to other citizens only in virtue of their basic agential capacities. On the state-only account, individuals have no egalitarian duties at all. On the twofold account, individuals have more limited egalitarian duties whereas states have additional or stronger egalitarian duties. For reasons I have already discussed elsewhere (Carter, 2013: 38–39), I consider the state-only view to be implausible, but I shall leave that worry aside here. In the next two sections I will consider each of Nathan’s two challenges, assuming first one and then the other of the two dualist accounts. ³

Which equalizanda are ruled out?

I turn now to the first of Nathan’s challenges. According to this challenge, the requirement of opacity respect does not filter out nearly as many candidate equalizanda as I had supposed. The main reason for this is that the ‘opacity test’, which I suggested must be applied to any candidate equalizandum, is an empirical test. A practice that aims to realize an egalitarian principle, such as the principle of equality of opportunity for welfare, 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, 2011: 561). Egalitarian principles are not ruled out logically, but they are only as plausible as the various practices that allow us to implement them without violating the requirement of opacity respect. If there are no such practices then the relevant principle is incoherent, inasmuch as it prescribes an equal distribution that cannot be implemented without negating the basic equality on which the justification of that equal distribution depends.

Nathan suggests that many of the principles I supposed would fail the opacity test might in practice turn out not to do so. Consider the luck-egalitarian principle of equality of opportunity for welfare, the implementation of which, I claimed, requires assessing certain ‘internal’ capacities, either directly or as a presupposition of certain assessments of degrees of responsibility. Nathan points out that my objection depends on the assumption that equality of opportunity for welfare can only be achieved by means of the state’s assessment of such capacities, and he suggests that this assumption may be false. For example, an egalitarian ethos could lead to the more productive being more generous with their labour power and taking only ‘more or less … what they are due’, so that equality of opportunity for welfare is achieved ‘without … coercion from the state, and in particular without the internal judgements that may be involved in state coercion’ (Nathan, 2019: 534).

I have two main points in response to this challenge. First, the ‘opacity test’ is indeed an empirical test, but it might still have more teeth than Nathan’s counterexample suggests. Second, the filter provided by the ‘opacity test’ is not the only way in which my respect-based account of basic equality can and should constrain the choice of equalizandum.

Does the opacity test rule out too much?

Nathan’s second challenge poses a dilemma. Consider a society that implements distributive equality via the workings of a state bureaucracy that assesses individuals’ internal capacities in ways that are only just intrusive enough to violate the requirement of opacity respect. Compare this society with a philanthropic society that implements the same kind of equality through private initiatives that make a great number of very intrusive assessments of the internal capacities of the potential recipients of aid. According to Nathan, on a dualist version of my account of basic equality we ought to prefer the philanthropic society to the bureaucratic one. Yet this judgement seems ‘extreme’ (Nathan, 2019: 537). If, on the other hand, one criticizes the intrusiveness of the philanthropic society – calling the philanthropists ‘agents of the state’, in line with Nathan’s ‘functional’ model of state action – one is inevitably led to the equally extreme view that most economic interaction involves unacceptable violations of opacity respect. The opacity test then rules out far too many kinds of individual behaviour as morally unacceptable.

Must an egalitarian who accepts my account of basic equality also affirm that the very intrusive philanthropic society is better than the only-slightly-intrusive bureaucratic society, other things being equal in terms of the resultant degree of distributive equality? The answer is not at all obvious, for my account did not include any non-ideal-theoretic claims about how to measure degrees of opacity-disrespect or how to rank various groundless forms of egalitarianism. The purpose of my argument was to show that one’s egalitarianism is groundless if the things that one is seeking to equalize are supervened upon by the relevant range property. Thus, my argument had the more limited purpose of examining the internal consistency of various answers to the so-called currency question.

It is interesting, nevertheless, to ask how different cases of opacity-disrespect might be comparatively measured and evaluated. Presumably opacity-disrespect will have several dimensions, including the number of capacities evaluated, how basic those capacities are and the period of time over which the assessments are made. ⁴ A further possibility, from the dualist perspective, is to say that, other dimensions being equal, a case of opacity-disrespect is greater (or worse in some other sense) if the disrespectful agent is the state rather than an individual or a private association. Finally, concerning all of these dimensions it will matter which individuals or groups are subject to opacity-disrespect: we might be just as concerned about the distribution of opacity-disrespect as about its overall amount. We can nevertheless abstract from this last issue as long as the victims of opacity-disrespect are the same in each of the examples being compared.

Clearly there will be less opacity-disrespect in the philanthropic society than in the bureaucratic society if the state in the bureaucratic society is violating the requirement of opacity-respect whereas individuals or associations in the philanthropic society are not. This is not how Nathan sets up the example – he speaks instead of opacity-disrespect occurring in both kinds of society – but it is a possible scenario on the state-only account of basic equality, according to which the private philanthropists necessarily avoid any form of opacity-disrespect whatever the nature or degree of the internal assessments they make. Neither would the philanthropists be violating the requirement of opacity respect on the twofold account of basic equality, if the assessments they are making are not assessments of the relevant basic agential capacities but are instead examples of the kinds of assessments that are barred only for the state. In the latter case, at least, it does not seem obviously mistaken to prefer the philanthropic society.

It does seem mistaken, however, to favour the philanthropic society over the bureaucratic society if (i) the assessments referred to in the two cases are of the same kinds of basic agential capacities, and (ii) we assume the twofold account of basic equality, according to which neither the state nor individuals may take into account the degrees of such basic agential capacities above the threshold. In this case, according to my theory, the agents promoting distributive equality, whether bureaucratic or philanthropic, violate opacity respect and thereby undermine their own egalitarianism. May we add to this judgement the claim that the philanthropic society is the least bad of these two disrespectful societies? On the one hand, the opacity-disrespect occurring in the philanthropic society is admittedly not perpetrated by the state, and in this sense it might be considered less bad even assuming the twofold account. On the other hand, ex hypothesi the disrespect in the philanthropic society is of a greater degree in terms of at least one of the other above-mentioned dimensions. As the example stands, then, it is simply unclear which society is the least bad.

As Nathan notes in the final section of his article, there is another way to avoid the judgement in favour of the very intrusive philanthropic society: one can hold that the stronger kind of opacity respect owed only by the state on the twofold account – a kind of respect that rules out the assessment also of non-basic capacities – ought in fact to apply no less to private individuals than to the state. We ought, that is, to abandon dualism and adopt a form of monism that is very demanding in terms of opacity respect. If we do so, the more intrusive philanthropic society will turn out to be worse, ceteris paribus, than the less intrusive bureaucratic egalitarian society. Unfortunately, Nathan adds, this move would throw out the baby with the bath water: it avoids the counterintuitive conclusion that the more intrusive philanthropic society is less bad, but at the cost of absurdity, for it extends the requirement of opacity respect to the point of outlawing many of the everyday market transactions that liberal egalitarians rightly consider perfectly innocuous. Hence Nathan’s second challenge: the requirement of opacity respect might rule out too much.

It is difficult to see why an egalitarian who accepts my account of basic equality need feel compelled to extend the stronger requirement of opacity respect in this way. After all, my discussion so far has shown that a counterintuitive preference for the more intrusive philanthropic society is avoided by the dualist without making such a move: on the twofold account, at least, such a preference is either plausible rather than extreme and counterintuitive, or else unwarranted because underdetermined. But let us consider Nathan’s suggested move on its own merits. Are there positive reasons to extend the stronger requirement of opacity respect from the state to civil society? The reason Nathan offers to the advocate of opacity respect is that the distinction between the state and private economic actors is undermined by the fact that individual economic actors are implicated as participants in state-enforced power structures. The state exercises coercive power in enforcing the property rights on which individual market transactions depend. And, while individual economic actors do not normally act in ways that are directly coercive, Nathan says, ‘they nonetheless are properly construed as acting as agents of a power structure that itself is unchosen and therefore coercive in the relevant sense’ (Nathan, 2019: 537). Thus, all law-abiding citizens are, in a sense, themselves agents of the state, and therefore ought to be subject to the same requirements of opacity respect as the state.

What, exactly, does it mean to say that there is a power structure of which private economic actors are ‘agents’? In the case of the state, the relevant power structure consists of a set of stably applied coercive measures incentivizing respect for property rights and market transactions, while the latter involve the exercise of social power through market offers. The state exercises normative powers of enforcement; private economic actors exercise the normative claims, liberties and powers of exchange that are thereby enforced. Presumably what Nathan has in mind is that the structure of coercive social power that incentivizes respect for those normative claims, liberties and powers of exchange would not exist were it not for the collaboration of the many economic actors who make voluntary choices conforming to that structure of social power rather than challenging it. But this much is true of any agent who is subject to social power: no power relation can exist without the collaboration of the agent who is subject to it. It is true even of a person who acts at gun-point: if Smith threatens Jones with a gun, Jones could at any time refuse to comply and instead accept to be shot, thus thwarting Smith’s attempt to force her to act as desired. By conforming to Smith’s will rather than refusing to do so, Jones collaborates with Smith in the realization of a power relation. A similar collaborative relation exists between the state as exerciser of coercive social power and the individuals or groups that are subject to that power. The existence of such a collaborative relation seems a meagre basis on which to extend the state’s requirement of opacity respect to the individuals or groups engaged in private market transactions.

This said, an interesting case might be made for extending the stronger requirement of opacity respect from the state to very powerful non-state economic actors on the grounds that the latter are indeed engaging in coercive activities. This hypothesis would take us back into the complex territory of non-ideal theory, given that most egalitarian theories prescribe distributions of economic power that would rule out, or severely restrict, such coercive power on the part of non-state actors. Whatever one might think of such a hypothesis, however, it is neither extreme nor absurd.