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Rescuing Basic Equality
“We hold these Truths to be self-evident, that all Men are created
equal” – Thomas Jefferson.
“All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood” – Article 1 of the Universal
Declaration of Human Rights.
1. Introduction
Some papers on the basis of equality begin with inspirational quotes, such as those
above, in order to emphasise the importance of the issue. We begin with these
quotes in order to emphasise its vagueness. But despite its vagueness, as the quotes
suggest (and notwithstanding the gender exclusive language), the belief that
persons are equal is central to our contemporary political and legal culture.
Politicians appropriate the rhetoric of equality for strategic purposes, attesting to
its cache with electorates in liberal democracies, and the concept underpins some
of the most important legal developments in the 20th century, such as the
emergence of an international human rights culture. It is also foundational to
much normative philosophy, with many theories championing some set of rights
or entitlements possessed equally by all citizens or all human beings.
Philosophical debate has focused on what moral property or consideration
grounds the equality of persons. John Rawls provides one influential view. He
claims that equality is grounded in the possession of two moral powers: the
capacity for a sense of justice (the first moral power) and the capacity to form,
revise, and pursue a conception of the good (the second moral power).1 Whilst
individuals presumably have varying capacities with respect to both moral powers,
only a minimum is required for an individual to have entitlements grounded in
equality. In other words, Rawls relies on a range property. A range property is a
binary property that one possesses in virtue of having a scalar property or set of
scalar properties that fall within a specified range.2 Only those who possess the
John Rawls, Justice as Fairness: A Restatement, Erin Kelly (ed.), (Cambridge, MA: Harvard
University Press, 2001), 19.
2 See Ian Carter, ‘Respect and the Basis of Equality’, Ethics, 121 (2011), 538-71, 548.
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two moral powers fall within the required range, regardless of variations above or
below this threshold. Although the underlying properties on which the range
property depends are scalar, the range property itself is binary since individuals
possessing the relevant scalar properties either will or will not fall within the
specified range.
As with all philosophical debates, the literature on equality is riddled with
disagreement. But surprisingly there is one conclusion that has achieved near
consensus: that Rawls was wrong. Indeed, Richard Arneson concludes that views
relying on range properties are not even ‘remotely credible’.3 This consensus
crystallises around three objections, each of which is often taken to be fatal. The
first objection is that the threshold at which the possession of the relevant scalar
properties places an individual within the range that qualifies her for equality is
arbitrary. This is the Arbitrariness Objection.4 The second objection is that there is
rational pressure to acknowledge that the scalar properties on which the range
property depends are also relevant. In other words, it is unclear why variations in
individuals’ moral powers both above and below the threshold do not undermine
the relation of equality. This is the Variations Objection.5 The third is that Rawls’
view has unpalatable, perhaps even offensive, implications for our treatment of
humans who do not possess both moral powers, such as children or adults with
severe cognitive disabilities. This is the No Rational Agency Objection.6
These objections are forceful in so far as Rawls neither offers arguments in favour
of his view nor anticipates and responds to these objections. His view is laid out
briefly and is rightly criticised as under-motivated. Nevertheless, the three
objections are not as compelling as they first appear and our aim is to rescue
Rawls’ account from the popular view that it is irretrievably misguided in its
attempt to justify equality. We hope not only to cast doubt on the objections but
also to develop a more substantive positive argument for Rawls’ conclusions than
Rawls himself offered. Whilst defending the Rawlsian view, therefore, we also
recognise the need for a deeper analysis of the two moral powers and the role they
play in his account of equality.
Richard Arneson, ‘Basic Equality: Neither Acceptable nor Rejectable’, in Uwe Steinhoff
(ed.), Do All Persons Have Equal Moral Worth? On “Basic Equality” and Equal Concern and
Respect (Oxford: Oxford University Press, 2015), 30-52, 36.
4 Arneson, ‘Basic Equality’, 36-7.
5 Carter, ‘Respect and the Basis of Equality’, 549-50; George Sher, ‘Why We Are Moral
Equals’, in Steinhoff (ed.), Do All Persons Have Equal Moral Worth?, 17-29, 19; and Arneson,
‘Basic Equality’, 36-7.
6 Jeff McMahan, ‘Challenges to Human Equality’, Journal of Ethics, 12 (2008), 81-104.
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One complication with this task is that the precise meaning of the assertion of
equality is unclear. We can parse this claim in a number of ways: all persons are
equally valuable from an impartial perspective; all persons possess the same set of
rights; all persons are due equal treatment of some form, and so on.7 A number of
philosophers have distinguished between substantive and formal equality.8
Substantive equality entails a commitment to equal claims to goods or resources of
the kind endorsed by egalitarians.9 This form of equality is controversial and is
rejected by theorists on both sides of the political spectrum.10 We can contrast this
with formal equality, according to which all members of a particular group should
equally possess some set of rights. This is a more limited requirement since it is
silent about the content of the rights that individuals possess equally. Unlike the
former, this belief is shared by views across the political spectrum. For example,
both Nozickian libertarians and Rawlsian liberals believe that persons share a set
of rights, even though they disagree sharply about the content of those rights.11
It is not obvious that Rawls’ view provides a general basis for either substantive or
formal equality. His view claims that the two moral powers give rise to a
corresponding set of rights and duties that are possessed equally by all individuals
who have such powers. We will call the equal possession of these rights and duties
basic equality, though we acknowledge that our use of this phrase may differ from
others’. As we have defined it, basic equality differs from both formal and
substantive equality. It differs from substantive equality because the rights and
duties of basic equality may fall short of the full set of egalitarian entitlements. We
Throughout the paper, we put aside a related but separate claim regarding the equal
wrongness of killing. For discussion of this topic, see Jeff McMahan, The Ethics of Killing:
Problems at the Margins of Life (Oxford: Oxford University Press, 2002), 233-48.
8 Similar distinctions are drawn by other commentators. See Kasper Lippert-Rasmussen,
Luck Egalitarianism (London: Bloomsbury, 2015), ch. 2; John Rawls, A Theory of Justice:
Revised Edition (Cambridge, MA: Harvard University Press, 1999), 441-2; and Joseph Raz,
‘Principles of Equality’, Mind, 87 (1978), 321-42.
9 Egalitarians disagree about what goods or resources to which people have an equal
claim. Some distributive egalitarians focus on resources whilst social egalitarians
emphasise equal respect. See Ronald Dworkin, Sovereign Virtue: The Theory and Practice of
Equality (Cambridge, MA: Harvard University Press, 2000); and Elizabeth Anderson,
‘What’s the Point of Equality?’, Ethics, 109 (1999), 287-337 respectively.
10 Critics on the right include libertarians such as Robert Nozick. See his Anarchy, State, and
Utopia (New York: Basic Books, 1974). Critics on the left include prioritarians and
sufficientarians. See Derek Parfit, ‘Equality and Priority’, Ratio, 10 (1997), 202-21; and
Harry Frankfurt, ‘Equality as a Moral Ideal’, Ethics, 98 (1987), 21-43.
11 Nozick, Anarchy, State, and Utopia, 49-51; and Rawls, A Theory of Justice, 441-9.
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leave open the possibility, favoured by Rawls, that basic equality is consistent with
some degree of socio-economic inequality.12 It also differs from formal equality
because there are some rights and duties – such as the right against suffering
certain kinds of pain and the duty not to inflict it on others – that are not plausibly
grounded in the two moral powers. Whilst the equal possession of such rights and
duties would be a version of formal equality, it would not fall within the ambit of
basic equality, since this refers to the rights and duties grounded in the two moral
powers. To put the point another way, basic equality does not entail substantive
equality and is not entailed by formal equality.
Our aim in this paper is to defend basic equality, by referring to a distinctive set of
interests that possession of the two moral powers generates. We call these basic
interests. It is the common and equal possession of these interests that justifies basic
equality. We defend this view against the Arbitrariness Objection, the Variations
Objection, and the No Rational Agency Objection.
2. Basic Equality, Basic Interests, and the Two Moral Powers
It is first necessary to examine in greater detail what is importantly and distinctively
valuable about the possession of the two moral powers. Let us begin with the
second moral power, since this is the most commonly discussed. What is it to have
the capacity to form, revise, and pursue a conception of the good and why do we
have an interest in it? Generally speaking, conceptions of the good refer to the
beliefs and attitudes people hold about what their aims and ends in life ought to
be. These conceptions manifest in our career decisions, how we spend our leisure
time, what associations we belong to, and so on. They can encompass
metaphysical beliefs, since such beliefs often have implications about how we
ought to live. For example, Christians who believe in the divinity of Jesus Christ
often take this as grounds to follow his teachings. Perhaps the core beliefs that
constitute a person’s conception of the good are about values, such as the belief
that it is good to live a life of generosity, bravery, patriotism or spirituality. Taken
together and over the course of a lifetime, these beliefs form an overall vision of
what it is to live well and to live a good life.
For Rawls, basic equality is consistent with socio-economic inequality for at least two
reasons. First, possession of the two moral powers is not sufficient to ground principles of
distributive justice, since those who possess the two moral powers must also satisfy other
criteria, such as be participants within a scheme of social cooperation. Second, even when
this is the case, the two moral powers may ground principles of distributive justice, such
as the difference principles, that themselves permit socio-economic inequality under
certain conditions.
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It is worth making a number of clarifications about this analysis in order to preempt the common criticism that it is unduly individualist or rationalistic. First, I
may conceive of my good as relative to me or as something that would be good
for anyone to pursue. I need not believe that anyone would flourish if they
pursued a spiritual life, or I could believe that others can flourish only if they live
such a life – both of these attitudes would qualify as part of my conception of the
good. Second, my conception of the good can aim at either personal or impersonal
value and may be either self or other-regarding. I may think that I ought to
dedicate my life to achieving impersonal value, such as the protection of
endangered species, or by furthering the interests of others. My beliefs about the
good need not strictly relate to my personal good. Finally, my conception of the
good need not be fully precise, systematic, or consistent.13 Of course, no one lives
their life as if they are building a house: in a stage by stage execution of a
comprehensively pre-conceived plan. Our conceptions of the good are constantly
evolving, contain many inconsistencies, and are often unfulfilled due to weakness
of will or external impediments.
What is it, then, to have a capacity to form, revise and pursue a conception of the
good? Here is a rough account:
The Second Moral Power: An individual has the capacity for a conception
of the good if and only if she can form, revise and pursue beliefs
about the good on the basis of critical deliberation.
According to this definition, an individual must be able to form beliefs about the
good, which encompass both beliefs about what one’s good is and how one can
pursue it. They need not, however, track objective reasons. Though we do not
here commit to an objective account of human flourishing, if such an account is
correct, it is possible for a person to have a wrongheaded conception of the good.
Here we can make an important distinction between two versions of the second
moral power. According to the first, the second moral power is entirely contentindependent. We have an interest in this capacity regardless of the content of our
conception of the good – even if, for example, it involves serious wrongdoing. On
this view, even a person whose conception of the good aims at harming others has
an interest in the second moral power. On the second, our interest in this moral
For further discussion see John Rawls, Political Liberalism (Columbia: Columbia
University Press, 1996), 13; and Jonathan Quong, Liberalism Without Perfection (Oxford:
Oxford University Press, 2011), 13-14.
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power depends upon our conception of the good meeting a minimum threshold of
moral acceptability. Although we subscribe to a version of the latter view, it is not
necessary for us to commit to it here, and we prefer not to alienate those who
favour the former view.
It is also important that agents form beliefs about the good at least partly on the
basis of critical deliberation. Consider two individuals, Costanza and Hwa.
Costanza carefully considers multiple options in determining her own good. She
seeks out information about a diverse range of mutually exclusive conceptions and
extensively compares them. She also reflects upon the value of these various
options and the way they might contribute to her good. She makes her choices for
the reasons she identifies through this critical process. Her resulting conception of
the good is comprehensive and consistent in the sense that it influences a wide
range of her beliefs and choices and does not contain any contradictions. She
frequently reflects on her choices and occasionally revises them in the light of this.
Finally, she has a high degree of self-awareness about the deliberative process in
which she engages. Hwa differs from Costanza in all of these respects. He rarely
considers his options or their value and has a deeply fragmented and inconsistent
set of beliefs about his good. He is also so impulsive that his beliefs about the
good often fail to guide his action. Although Costanza represents the ideal
deliberator about her conception of the good, Hwa still possesses the relevant
capacity. This comparison clarifies that the threshold of critical deliberation we are
suggesting is relatively undemanding.
Let us now elaborate upon the first moral power, which is the capacity for a sense
of justice. We can summarise this power as follows:
The First Moral Power: An individual has the capacity for a sense of
justice if and only if she can understand, endorse and apply principles
of justice.
There are three key elements to this definition. First, an individual must be able to
understand principles of justice. She must appreciate the concepts that feature in
the principles and have some knowledge of how the principles recommend
particular actions or institutional arrangements. This is also intended as a minimal
requirement. For example, as long as a person is able to draw some link between
the principles and their implications, this suffices for understanding the principles,
even if they are incorrect in their beliefs about the specific implications of the
principles. Second, it is also important that an agent has the capacity to endorse
the principles. She must possess a positive and supportive attitude towards them;
an agent who is able only grudgingly to conform lacks this capacity. Third, an
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agent must be able to apply principles of justice. This may involve acting in
accordance with them or administering them in relevant institutional settings. Both
of these requirements are content-dependent, in that an agent must exercise them
in respect of principles of justice falling within an acceptable range. If an agent is
able only to endorse and apply overtly oppressive or discriminatory principles,
then she lacks the first moral power. It is important to emphasise again that an
agent need only have the capacity for a sense of justice, and therefore the
requirement is also minimal. On this view, an agent who in fact holds offensive
political views may still possess the capacity for a sense of justice – as long as she
is able to understand, endorse and apply appropriate principles – and thus also the
first moral power.
We should make two general observations about the two moral powers at this
point, which are important to the ensuing discussion. First, both powers are
complex in the sense that they are composed of a cluster of other psychological
capacities. For example, the second moral power requires, among other things,
memory, rationality and the use of critical faculties. This means that there may be
two kinds of indeterminacy regarding the moral powers. First, there may be
multiple sets of capacities that are sufficient for one or both of the moral powers.
In addition to this, even if we could identify a specific set of necessary capacities,
each of these will be scalar, and thus it is possible that different combinations of
quantities of these capacities are also sufficient for one or both of the moral
powers.
The second observation is that second order judgments play an important role in
both moral powers. A second order judgment is a belief or attitude towards one’s
beliefs or attitudes about the good. For example, suppose that two Christians take
very different second order attitudes towards their commitment to Christianity.
The first endorses his Christian beliefs and practices as part of a noble and
enlightened life. The second views her Christian beliefs and practices as the
product of misguided fear and wishes she could be rid of them. Both take very
different second order attitudes, but the point is that only those with second order
awareness and judgment can either endorse their conception of the good as
distinctively theirs or reject it as an unwelcome compulsion.14 Similar claims apply
to the first moral power, as an agent must not possess a second order attitude of
disapproval towards her own first order adherence of the principles of justice. For
example, acting on principles of justice as a result of habituation or indoctrination,
For a discussion of the ethical importance of (the capacity for) endorsement, see
Dworkin, Sovereign Virtue, ch. 6.
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which are rejected by the agent as unwanted compulsions, does not satisfy this
requirement.
What makes the possession of the two moral powers valuable? And what are the
contours of the interests that the powers make possible? Again, let us begin with
the second moral power. Part of what makes this capacity valuable is that it
facilitates the achievement of one’s good. But this is not what makes it distinctively
valuable, since instinctual or acquired behaviours may perform a similar role. It
helps therefore to distinguish between having an interest in one’s good and having
a basic interest in the capacity to form, revise and pursue a conception of the
good. The former interest can be facilitated by a number of abilities, whilst the
latter requires the second moral power.
One feature that makes the second moral power distinctively valuable is that it
enables its possessor to see the decisions, beliefs, and practices that contribute to
her good as rationally justifiable. Given that agents critically deliberate about their
reasons in order to make decision about their good, and have second order
awareness of this process, they can see the outcome as supported by reasons. This
is valuable because agents can thereby recognise the pattern of justificatory
relationships between practical reasons and decisions about the good. Intuitively,
this recognition has distinctive value beyond the mere facilitation of one’s good.
To help illustrate this, consider the following example.
Maths Problem: Costanza and Hwa are both set a maths problem and
both reach the correct answer. Hwa reaches this answer by applying a
heuristic that he has memorised but does not understand. Costanza
solves the problem by displaying a higher level of understanding. She
determines the calculations she must execute and appreciates how
those calculations will reach a mathematically valid answer.
Although both reach the correct answer, Hwa does so as a product of habituation:
he recognises that the heuristic he has learned is applicable in the present case,
without understanding why. He is therefore unable to see his answer as justified by
appropriate reasons, even though it is correct. Costanza achieves a deeper level of
enlightenment about the justificatory relationship between her mathematical
reasoning and the correct answer. Moreover, we maintain that this value would not
be lost if Costanza’s reasoning were faulty and resulted in an incorrect answer
(though we note that there is independent value in arriving at the correct answer).
This is because, even when Costanza reaches the wrong answer through an error
in her reasoning, she is still able to see her answer as supported by appropriate
reasons, even if in the particular case this perception is inaccurate. Similarly, an
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agent with the capacity critically to evaluate practical reasons regarding her good is
able to perceive the pattern of justificatory relationships between practical reasons
and decisions about the good, even if some errors result in misguided conclusions.
The second reason why the second moral power is valuable has been well
described by others and we have little to add: it is valuable to be the author of
one’s own life. Of course, different philosophers take this to entail different things.
For some, an individual enjoys self-authorship simply when she is not wrongfully
coerced. For others, self-authorship is much more demanding – perhaps it requires
that she have an adequate range of options from which to pick, and also that
others refrain from shaping either her values or the character of the options that
are available to her.15 What unites these views is their sympathy for the idea that
every individual has a basic interest in determining the goals that she will pursue,
and that others can frustrate this interest by treating her in certain ways. This is a
widely-shared conviction and is at the heart of liberal political philosophy.
Let us now turn to the first moral power. Unlike the second moral power, we must
commit to the idea that the first moral power is content-dependent. Having a
sense of justice means that views that are in some sense inconsistent with seeing
others as free and equal citizens are excluded from consideration. We have a
weighty basic interest in responding aptly to the moral demands that others make
on us.16 This also partly explains why committing serious wrongs is not in our
interest. To see this, consider the following example:
Hospital Bed: Hwa wakes up in a hospital bed and is informed that he
was involved in an incident of abuse that descended into violence.
However, it is unclear whether he was the perpetrator or the victim of
this abuse.17
Does Hwa have reason to hope that he was the perpetrator or the victim? It is
uncontroversial that Hwa has an interest in not being the victim of abuse.
Therefore if he lacked an interest in not being the perpetrator, it would be
straightforward that he should hope he is the perpetrator. But this is not obviously
true. Would you prefer to be the victim or the perpetrator? What preference would
you have for your children? The mere fact that the answer is not straightforward
For a defence of a more demanding account of self-authorship, see Ronald Dworkin,
Justice for Hedgehogs (Cambridge, MA.: Harvard University Press, 2011) 209-14.
16 T. M. Scanlon, What We Owe to Each Other (Cambridge, MA.: Harvard University Press,
1998) Ch.5.
17 This is a variation of a case devised by Victor Tadros.
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suggests that Hwa has some basic interest in not possessing seriously wrongful
attitudes towards others. It may be tempting to suppose that the answer is not
straightforward for other reasons, such as the possibility of facing criminal
sanctions. In response, we doubt that many people would be comfortable
discovering that they are the perpetrator even without the possibility of
punishment. Here we maintain this claim only in respect of seriously wrongful
attitudes, and we leave open the possibility that there is no interest in avoiding
views that are less wrongful.
With respect to basic equality, it may be thought that, whilst the second power is
the source of our rights, the first power is the source of our duties to others to
secure those rights. We cannot owe duties of justice to others if we lack the
capacity for a sense of justice as this violates at least some versions of the ‘ought
implies can’ principle. As the above reflections show, however, this division of
justificatory labour is simplistic, since we also plausibly have an interest in the first
moral power.
In fact, there may be another distinctive basic interest in the combination of the
two moral powers. Only individuals who possess both are able to establish and
participate in a just society, understood as a co-operative enterprise in which free
and equal individuals pursue their conceptions of the good on fair terms. The
combination of the moral powers enables the co-operative realisation of individual
autonomy. It is this co-operative vision of society that allows us sensibly to speak
of a liberal community, whilst maintaining the rights of individual autonomy that
liberals traditionally support. In this vein, Rawls writes,
For whenever there is a shared final end, an end that requires the
cooperation of many to achieve it, the good realized is social: it is
realized through citizens’ joint activity in mutual dependence on the
appropriate actions being taken by others. Thus, establishing and
successfully conducting reasonably just (though of course always
imperfect) democratic institutions over a long period of time, perhaps
gradually reforming them over generations, though not, to be sure,
without lapses, is a great social good and appreciated as such. This is
shown by the fact that people refer to it as one of the significant
achievements of their history.18
Rawls, Political Liberalism, 204. See also Ronald Dworkin, ‘Liberal Community’, California
Law Review, 77 (1989), 479-504, 499.
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Of course, there is a great deal more to say about the basic interests grounded in
the possession of the two moral powers. But we hope that the four we have briefly
described – the interests in seeing one’s decisions about the good as supported by
appropriate practical reasons, living a self-authored life, taking morally appropriate
attitudes towards others, and establishing and participating in the co-operative
realisation of individual autonomy – help to clarify the kind of interests that we
think justify basic equality.
3. The Arbitrariness Objection
Let us revisit the first objection to the Rawlsian defence of basic equality. This is
the worry that the threshold at which the possession of the relevant scalar
properties places an individual within the range that grants her basic equality seems
arbitrary. Since the underlying properties that comprise the moral powers are
scalar, there is no obvious point to place the threshold. If individuals can possess,
say, rational agency in greater or lesser quantities, why is the threshold placed just
where Rawls say it is? If there is no justification for the favoured position, this
raises the suspicion that the threshold is placed simply to meet pre-established
conclusions, such as the almost universal belief that human beings fall above the
threshold and that non-human animals fall below it. Not only is such an argument
circular, since it assumes a particular placement for the threshold in order to
‘show’ that human beings lie above it, it also smacks of speciesism.19
To help evaluate this objection, consider the following example:
Prison Orchestra: A prison has the resources to allow its inmates to
participate in only one creative activity: the prison orchestra. Some of
the inmates permanently lack the capacity to understand music, how
the instruments work, or are unable to implement this knowledge by
playing them. Of those who do not fall into this group, some are just
about competent whilst others are musically excellent. The prison
manager can recognise inmates as members of the orchestra and also
has the task of allocating limited playing time amongst members.
Before we discuss how this case helps us respond to the Arbitrariness Objection, it
will be useful to clarify the importance of this example for basic equality. Here are
Very roughly, we can follow Peter Singer in defining speciesism as ‘a prejudice or
attitude of bias in favour of the interests of members of one’s own species and against
those of members of other species’. See his Animal Liberation (New York: Harper, 2009),
6.
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three respects in which Prison Orchestra helps to illuminate basic interests.20 First,
the interests in both cases are non-exhaustive, in the sense that they exist alongside
other interests. Just as inmates have interests aside from becoming members of the
orchestra, so too individuals have interests aside from possession of the two moral
powers. Second, although they are non-exhaustive, the interests in both cases are
members of a set of the most valuable interests that an individual has.
Notwithstanding the differences between various theories of human flourishing,
both creative expression and autonomous living feature heavily in most. Third, the
interests are distinctive and are connected with a set of opportunities that are
uniquely capable of realising them – in other words, these interests are ones that
cannot be realised through any alternative means. Taken together, these features of
the interests in question are capable of justifying certain rights and, in particular,
the rights that we can justify by appeal to a concern for basic equality. In this
respect, we can therefore situate our account of basic equality within an interest
theory of rights.21
The first decision the prison manager must make is to decide who to recognise as
members of the orchestra. Clearly only those inmates who are at least competent
musicians can be appointed as members. Though this may seem like a harsh
decision based on differences in ability, it is really because those who permanently
lack the capacity to understand music or play an instrument do not have an
interest in being members and it would not benefit them to be recognised as
participants in an activity in which they have no interest. So it is the capacities that
the inmates have that determine the position of the threshold.
Here it may be objected that those inmates excluded from the orchestra have an
interest in acquiring the capacities that would make them eligible for inclusion. We
are happy to accept this, but maintain simply that this is a different interest.
Having an interest in acquiring some ability may justify allocating resources that
We pick this slightly eccentric example because it fits with, and provides the opportunity
for us to defend further, Rawls’s own remarks about the way in which members of a wellordered political society – or, in our case, agents who are owed basic equality – are like
members of an orchestra. The example embraces the sense in which individual citizens,
like members of an orchestra, are pursuing their own ends, but in a way that contributes
to a collective activity. In this example, individual players represent citizens pursuing their
own good, whilst the ensemble represents the collective realisation of individual
autonomy. See Rawls, Political Liberalism, 204.
21 See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), ch. 7.
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can be utilised to acquire that ability, but it cannot justify allocating resources that
can be utilised only by those who already possess the ability.22
Returning to basic equality, we similarly claim that the possession of the two moral
powers determines where the threshold lies. The Arbitrariness Objection is too
quick to assume that the range property must be arbitrary simply because it
attaches to a set of properties that, taken individually, are scalar. The source of the
confusion, we suggest, is a failure to appreciate the difference between the
complex capacities represented by the moral powers and the underlying properties
that constitute them. Though the underlying properties are scalar, possession of
the moral powers is not. The question about whether a being possesses the moral
powers must, in most cases, be met with one of two answers. On the account that
we defend, therefore, we have principled reasons for placing the threshold at a
particular level – just as the prison manager has principled reasons to appoint only
some inmates as member of the orchestra – as that is the level at which possession
of the two moral powers emerges from the underlying capacities.
This is not to deny that the threshold is subject to vagueness. Specifically, there
may be two forms of vagueness. First, the threshold may be vague in the sense
that it is indeterminate. As we describe above, there may be no precise increment
at which possession of some scalar property establishes the moral powers.
Additionally, there may be multiple sets of underlying capacities that are sufficient
to establish the moral powers. Secondly, the threshold may be subject to epistemic
vagueness, such that it is difficult or impossible to ascertain whether borderline
cases fall above or below the threshold.
Do these admissions of vagueness threaten the previous judgment that possession
of the moral powers is binary? No. This is because binariness is not itself a binary
property. Instead, binariness exists on a spectrum with fully scalar properties at
one end and fully binary properties at the other. The kind of binariness that our
argument requires is not absolute: it can tolerate a sizable number of cases that
cannot be said either to possess or not possess the property. Such cases are
indeterminate but do not threaten the discreteness of the two categories in
question. This is distinct from the idea that there are continuous gradations
between the two categories. Our view permits indeterminate cases but not cases
that can be placed on specific gradations between possessing and not possessing
the moral powers.
There are difficulties in determining how strong such interests are and who possesses
them. For a discussion of the standard for assessing fortune for an outline of similar
problems, see McMahan, The Ethics of Killing, 145-59.
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14
Strictly speaking, only a threshold based on the possession of fully scalar
properties would be arbitrary. As long as there are some cases falling above and
below the threshold, we can identify some criteria for determining where to place
the threshold. Of course, if this were true of the possession of the moral powers,
the view would be implausible for others reasons, as it would be overwhelmed
with indeterminacy. But this is not the case and, when compared with the full
range of the scalar properties that constitute the moral powers, the area of
indeterminacy is relatively small.
To return to the Arbitrariness Objection, conceding that the threshold is vague in
one or more of these senses is not to concede that it is arbitrary. We retain criteria
by which to judge where the threshold lies, even if their application is sometimes
indeterminate and/or difficult. Of course, vagueness carries its own problems,
particularly when we face borderline cases that must be classified. But this is a
substantially less significant problem than arbitrariness. Whereas arbitrariness is
fatal to the entire view since it suggests circularity and lack of justification,
vagueness is problematic only for borderline cases.
4. The Variations Objection
The second objection is that there is rational pressure to acknowledge that the
scalar properties on which the range property depends are also relevant. It will be
helpful to distinguish two versions of this objection. One focuses on variations
above the threshold and the other on variations below it. It is unclear why
variations in individuals’ moral powers both above and below the threshold do not
undermine the relation of basic equality. Although we have clarified that the
possession of the moral powers is a binary property, albeit one that is subject to
vagueness, our ability to exercise these powers well is scalar and varies
significantly. Recall the contrast between Costanza, who is able to exercise the
second moral power exceptionally, and Hwa, who barely possesses it at all.
Though they equally share the property of possessing the powers, they are not
equal in terms of how effectively they can operate them. Similarly, compare
Costanza* with Hwa*. Costanza* falls just short of the threshold, whilst Hwa* is
well below it. Why shouldn’t these differences affect the moral concern to which
they are entitled? The Variations Objection challenges us to explain why these
differences do not matter.
Let us return to Prison Orchestra. Should the prison manager allocate playing time
according to musical talent or apportion it equally amongst inmates? All else being
equal, we intuitively hold that the manager should allocate playing time equally
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amongst members, irrespective of variations in musical talent above the threshold.
A barely competent musician is entitled to the same amount of playing time as an
excellent musician. This means that resources are allocated to inmates on the basis
of a range property: those who fall within the range are entitled to certain goods
whilst those outside of it are not, and variations within the range do not affect the
size of the entitlement. We can contrast this with how we ought to allocate
resources in a professional orchestra. Since the overarching aim in the professional
orchestra is to foster excellence, it is perhaps appropriate to allocate resources
according to ability. But given the unique creative role that the orchestra plays in
the inmates’ lives, it would be objectionable for the manager to aim at fostering
musical excellence. In other words, she ought to give considerable priority to the
interest in exercising musical capacities over the interest in attaining musical
excellence.
The same kind of reasoning shows how we can respond to the Variations Objection.
We explained before why the interest in exercising the moral powers is both
weighty and distinct. In these respects, it is analogous to the inmates’ interest in
musical expression. Accordingly, we ought similarly to give considerable priority to
this basic interest over the interest of a few individuals in exercising their moral
powers to a much higher degree.
At this point, one may object that this reasoning justifies only the weighted priority of
this basic interest rather than absolute priority. Perhaps there are beings capable of
such sublime autonomy that their achievement can deprive others of the chance to
take part. This would be analogous to a version of Prison Orchestra in which one
inmate enjoys almost super-human musical abilities but needs a greater-than-equal
share of playing time in order to realise these. In response, we stress that there is
no need for us to exclude this theoretical possibility. Our claim is the more
pertinent one that no human deliberators in fact meet this condition.
For distinct reasons, variations below the threshold also do not threaten our
defence of basic equality. In Prison Orchestra, a person who just about lacks the
capacity to play music is in one sense equivalent to a person who is nowhere near
it: both lack the capacity to participate in a valuable activity. This is not to deny
that the first person may enjoy some interests that the second does not, and that
these interests are similar to those possessed by individuals above the threshold.
For example, some inmates may be able to produce sounds from their
instruments, thus achieving some creative output, without engaging in the practice
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of playing music.23 These individuals have some interest in this creative outlet that
those who are completely unable to engage creatively with the instruments lack.
We accept, therefore, that variations between the first and second person may be
morally relevant, and thus variations below the threshold matter whilst variations
above it do not. In this respect, the view we defend is asymmetrical and follows
from the fact that there may be important interests that depend on the same
underlying capacities as the moral powers below the threshold but not above it.
The more modest point is simply that the interest in the creative production of
sound is not as distinctively valuable as fully participating in playing music, and we
therefore have principled reasons to maintain a specific and important threshold.
The plausibility of this analogy depends upon us being able to distinguish between
the great value of the activities that are made possible by an agent’s possession of
the two moral powers and the much lesser value of activities whose possibility
does not depend upon an agent’s possession of the two moral powers. This, of
course, was our aim in section 2.
Similarly, some have pressed the Variations Objection to basic equality on the
grounds that variations in psychological capacities below the threshold seem to
make a moral difference.24 Many people believe that a chimpanzee, for instance,
has higher moral status than a mouse, and that it would therefore be wrong to
perform the kind of experimentation on a chimpanzee that it might be permissible
to perform on a mouse. This difference is explicable in terms of the more
developed psychological capacities that the chimpanzee possesses. Why, then,
should variations above the threshold not make a moral difference when variations
below the threshold do? The answer is that there are other complex capacities and
corresponding interests (besides the moral powers) that occur below the threshold
of basic equality but not above it. One of these is the ability to experience
emotional distress, which is possessed by some living things and not others. Those
with this capacity are due moral treatment that those without it are not. This is one
capacity that may distinguish the mouse from the chimpanzee and explain why
certain kinds of experimentation, which tend to cause emotional distress in some
animals, cannot permissibly be performed on chimpanzees. We leave open the
possibility that there are other morally relevant complex capacities, with
corresponding interests, that occur above the threshold. We are unsure what these
For obvious reasons, we put aside the conceptual question ‘what is music?’ Our point is
just that there is some activity – which we call music – that has distinctively valuable
features and that these individuals are not able to engage in, though they are able to
engage in an alternative activity that is structurally similar.
24 For a forceful version of this objection, see McMahan, ‘Challenges to Human Equality’,
83.
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may be, but if they exist they do not negate the point that the rights and duties
grounded in the moral powers should be equally distributed.
5. The No Rational Agency Objection
The third objection to Rawls’ view is that it has unpalatable, perhaps even
offensive, implications for our treatment of those humans who do not possess
both moral powers, such as children or adults with severe cognitive disabilities.
This is the No Rational Agency Objection. Individuals who do not possess the moral
powers are not entitled to basic equality, and this seems to be an offensive
abandonment and degradation of these members of the human family.
It is true that, on our view, the possession of the moral powers grounds the equal
possession of a set of rights, and agents who lack the moral powers do not possess
these rights. In this sense, they are not equal to those persons who do enjoy these
rights. But this is not an offensive implication. There is nothing offensive about
the claim that agents do not have rights when those rights are grounded in
interests that they lack. It is obviously acceptable that a young child lacks some of
the rights, such as the right to vote, enjoyed by adults who possess the two moral
powers: this ‘inequality’ is readily justified. Moreover, young children may enjoy a
number of rights based on the interests that they do have. Similarly, adult humans
who lack the moral powers may also possess an array of rights grounded in their
other interests. Consequently, those who do not possess the two moral powers,
such as infants, those with severe dementia or congenital disabilities, may be equal
to those who do in a variety of other ways.
Part of the problem here is the language in which these debates are traditionally
couched. The relation of basic equality in popular rhetoric has great import and
any denial of it is perceived to legitimate serious wrongdoing and inhumane
treatment to the excluded group. To avoid this, one thing philosophy can do is to
demystify basic equality. When basic equality is understood as the equal
distribution of rights based on a particular interest, it becomes clear that there are
many relations of equality, distinct from what we have called basic equality, each
obtaining between different but overlapping groups of individuals, depending on
who possesses the relevant interest. It is not problematic to deny opportunities
and resources to those who have no interest in them, as the example about the
right to vote indicates. More difficult cases occur when there are resources that
could be based on multiple interests. For example, medical care may be necessary
for living an autonomous life, but may also be needed to avoid pain and suffering,
or to be included within the human community, and so on. Although a severely
cognitively disabled human would have no claim to medical care on the basis of
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her interest in exercising the moral powers, she may have a claim based on other
interests. Our view is therefore consistent with most other attempts to show why
such individuals should have access to the same resources as other humans. We do
not presume to solve the problem of distinguishing between the moral claims of
severely cognitively disabled humans and non-human animals, but it is important
to note that our claims are consistent with any such attempt.
6. Conclusion
To be written.25
25
For helpful comments, we thank James Christensen and Zoltan Miklosi.