A New Theory of Comparative and Noncomparative Justice

A New Theory of Comparative and Noncomparative JusticeAuthor(s): Joshua HoffmanSource: Philosophical Studies: An International Journal for Philosophy in the AnalyticTradition, Vol. 70, No. 2 (May, 1993), pp. 165-183Published by: SpringerStable URL: http://www.jstor.org/stable/4320402 .

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JOSHUA HOFFMAN

A NEW THEORY OF COMPARATIVE AND

NONCOMPARATIVE JUSTICE

(Received in revised form 16 July, 1992)

Joel Feinberg has distinguished between what he has called comparative and noncomparative justice.' He has also made the following claims about comparative and noncomparative justice.

(1) The two forms of justice are wholly distinct.

(2) There are distinct basic principles of justice corresponding to each form of justice.

(3) "The basic principle of comparative justice is that like cases are to be treated alike and different cases to be treated differently."2

(4) The basic principle of noncomparative justice is that each person should be treated according to his rights and deserts.3

(5) A given treatment of a person can be both comparatively and noncomparatively just, or both comparatively and noncomparatively unjust, or both comparatively just and noncomparatively unjust, or both comparatively unjust and non-comparatively just.

(6) The making of judgments about persons is a paradigm case of the treatment of persons which is noncomparatively just- or-unjust, and even the making of comparative judgments about persons is an occasion for noncomparative justice.

Feinberg's discussions of comparative and noncomparative justice are typically suggestive and thorough, and have been widely influential. Nevertheless, I have found much to quarrel with in the claims outlined above. The first part of my paper is devoted to critically examining those claims.4 Ultimately, I reject (3)-(4), and argue that Feinberg has

Philosophical Studies 70: 165-183,1993. ? 1993 Kluwer Academic Publishers. Printed in the Netherlands.



166 JOSHUA HOFFMAN

not provided us with any reason to accept (2). With respect to thesis (5), I argue that even if it is possible for comparative and noncomparative justice to come into conflict, such cases are much rarer than Feinberg thinks. I also contend that (6) is mistaken in implying that just or unjust judgments are always instances of noncomparative justice. Finally, I defend an alternative theory of comparative and noncomparative justice.

In characterizing the two forms of justice, Feinberg says that (a) ...

[comparative] principles of justice ... [are] those which essentially involve comparisons between various persons", while noncomparative principles of justice are "those which do not". He continues, (b) "In all cases, of course, justice consists in giving a person his due, but in some cases one's due is determined independently of that of other people, while in other cases, a person's due is determinable only by reference to his relations to other persons."5

It seems to me that as a characterization of comparative justice and noncomparative justice, quotation (b) is correct. As for quotation (a), as we shall see, it is dangerously equivocal. Crucial for a reading of (a) that results in a correct characterization of the two kinds of justice is a proper interpretation of the somewhat ambiguous phrase about a principle's "essentially involving comparisons."6 I shall have more to say about the two readings of (a) below.

Feinberg also claims in (2) that to each form of justice there corre- sponds a basic principle. He thinks as well that the basic or most general principle of comparative justice is the one stated in (3). Let us call this principle P1. P1 is a principle which Feinberg thinks "essentially involves comparisons between persons," i.e., between equals and/ or unequals. Feinberg also distinguishes between what he calls formal principles of justice and material principles of justice, with the basic principles of justice being formal ones.7 A formal principle of justice is one to which all true judgments and lesser principles of justice must conform, but is one which must be supplemented by less general material principles of justice in order to ascertain what actions are just in concrete cases. The formal principles of justice are therefore the most general and the most basic principles of justice.

Thus, Feinberg characterizes comparative justice in terms of the nature of the principles of comparative justice. Sometimes he correctly



COMPARATIVE AND NON-COMPARATIVE JUSTICE 167

characterizes the principles of comparative justice in terms of their determining what a person is due wholly in virtue of his relations to other people. But at other times he seems to characterize principles of comparative justice in syntactical terms, in terms of their being statements which are comparative in form. As we shall see, it is with this slide into a syntactical approach that Feinberg goes wrong, leading him to think mistakenly that P1 is a principle of comparative justice.

Let us look more closely at the error which Feinberg makes in understanding what makes a principle of justice a comparative one in terms of its syntactical form, as in the case of P1. P1 states that equals should be treated equally, and unequals unequally (in direct proportion to the differences between them). Persons are "equal" or "unequal" in the context of P1 just when they possess characteristics which determine that they ought to receive the same treatment or ought to receive different treatments. Thus, P1 states that people who ought to receive the same treatment should be treated equally, and people who ought to receive different treatments should be treated differently. Similarly, the principle stated in (4) (call it P2) says merely that each person should receive the treatment he deserves or the treatment to which he has a right. To say that a person deserves a certain treatment or that he has a right to a certain treatment is just to say that he should (as a matter of justice) receive it, and vice-versa.8 Suppose, for example, that Jones deserves or has a right to treatment t because of characteristic c. This implies that Jones should receive treatment t. Suppose, too, that Smith deserves or has a right to treatment t because Smith has characteristic c. Then Smith should receive treatment t. Both of these facts are subsumed by P2. Because Jones and Smith have characteristic c in common, they are equal in the relevant sense. This fact implies that Jones and Smith should be treated equally, i.e., because each deserves or has a right to the same treatment. And this is the sort of fact that is subsumed by P1. P2 pertains to how a given individual ought to be treated in order for justice to be done: its logical form contains but one individual variable. The logical form of P1 contains two variables for individuals: it states how individuals x and y ought to be treated in order for justice to be done. As we shall see, this does not imply that P1 and P2 are principles of justice which pertain to different kinds of justice. As I shall argue, each principle we have been discussing, P1



168 JOSHUA HOFFMAN

and P2, is a basic or formal principle of justice which pertains to both types of justice, comparative and noncomparative.

Let me reinforce this last point. It is true that whenever a comparative injustice is done, P1 is violated. But it is also true that if there are two or more persons who are due a certain treatment under a principle of noncomparative justice, and one of them is treated unjustly, then P1 is violated. And while it is true that whenever a noncomparative injustice is done to someone, P2 is violated, it is also true that whenever a comparative injustice is done to someone, P2 is violated.

Hence, whenever justice is done to more than one person in accordance with the same material principle of justice, whether comparative or noncomparative, the prescriptions made by P1 and P2 are obeyed, and whenever injustice is done to some but not all persons with respect to the treatments which are owed them based on the same material principle of justice, the prescriptions made by P1 and P2 are dis- obeyed.

Alternatively, one might say that whenever justice or injustice is done, both P1 and P2 apply. We have already seen that if justice is done to two or more persons as determined by the same material principle of justice, then both P1 and P2 sanction what has been done, for each has received the treatment that he deserves or to which he has a right, and equals have been treated equally. Suppose that justice is done to Jones in accordance with a material principle of noncomparative justice. It follows that P2 sanctions the treatment of Jones, for he has received what he deserves or that to which he has a right. Does PI sanction this treatment? There are two good reasons for saying that it does. First, since it is extremely plausible that Jones is equal to himself in desert and with respect to rights, equals, viz., Jones and himself, have been treated equally, and P1 sanctions the treatment of Jones. This would be a limiting case of P1 (a case where the two individual variables of P1 have the same value). Alternatively, it can be plausibly argued that principles P1 and P2 are necessarily true or true across possible worlds. After all, we want to say not only that given the actual situation, Jones deserves or has a right to a certain treatment, but also that were Jones to do such-and-such, he would deserve or have a right to a certain treatment. Given the status of P1 and P2 as necessary




truths, then whether or not it is the case in the actual world, there are persons in other possible worlds equal in desert and rights to Jones and who receive treatment equal to that of Jones. In this case, too, P1 sanctions the treatment of Jones, and of his equals in other possible worlds. Now suppose that an injustice is done to Jones (in violation of a material principle of noncomparative justice). In this case, P2 is violated, since Jones does not receive the treatment he deserves or to which he has a right. But is P1 violated as well? If we assume, as above, that P1 is true across possible worlds, then there is a person, s, in another possible world who is equal in merit and rights to Jones (under the same material principle of noncomparative justice) who is treated justly. But then equals, viz., Jones and s, are treated unequally, and P1 is violated as well. Since it is very plausible that P1 and P2 are true across possible worlds, it is plausible that P1 and P2 apply in every case of justice or injustice. In the discussion which follows, I will make the simplifying assumption that P1 and P2 apply in all cases of justice and injustice. However, if someone rejects my claim that P1 and P2 apply across possible worlds, then he can still accept the more limited and complicated claims I make about the applications of P1 and P2 in the text preceding this paragraph. In either case, each of P1 and P2 applies to cases of both comparative and noncomparative justice, and that is my main point. For then Feinberg is mistaken in thinking that P1 applies only in cases of comparative justice and P2 only in cases of noncomparative justice.

In order to illustrate this conclusion further, let us look at additional examples. Suppose that Smith deserves a particular legal punishment because he has broken a certain (just) law. Presumably, this is a case of noncomparative justice,9 and Smith's desert is sanctioned by the principle that each person should receive the treatment he deserves. Now suppose that Jones deserves the same legal punishment because he, too, has broken the law in question. Again he should be punished in that way because each person should get what he deserves. But it also follows from the foregoing suppositions that Smith and Jones should receive the same punishment. This is simply a logical consequence of their each deserving that punishment, i.e., of their being equal in desert. Since the fact that they should be treated equally is just a logical



170 JOSHUA HOFFMAN

consequence of the more basic facts of their individual deserts, no new kind of justice is introduced when we draw this conclusion from the facts of their individual deserts.

Now let us look at a different sort of case, one where students in the top 10% of the class deserve to receive an A for the class. Presumably this is a case of comparative justice, since what a student deserves depends not only on what he does, but also on what others in the class do: we cannot determine any one student's desert without determining the desert of the others.'0 Still, it is true that if Jones is in the top 10% of the class, he deserves an A, and if Smith is in the top 10% of the class, he also deserves an A. These statements of individual desert are subsumed by P2. Furthermore, since Jones and Smith are equals in this context of desert, they should be treated equally, a judgment subsumed by Pl. So both principles PI and P2 apply in contexts of comparative justice as well as in contexts of noncomparative justice: the two principles are context-neutral with respect to the type of justice involved.

I conclude that the basic or formal principles of justice which Feinberg identifies do not delineate different types or forms of justice, and that Feinberg's theses (3) and (4) are false. P1 and P2 are not basic, formal principles which serve to distinguish comparative and noncomparative justice, respectively.

What, then, of (1)? I have said from the start that there is a legiti- mate distinction to be drawn between comparative and noncomparative justice, but as we have seen this distinction cannot be characterized in terms of the formal or basic principles of justice, P1 and P2. However, I shall argue that it can be drawn in terms of more specific material principles of justice. I offer the following theory of comparative and noncomparative justice.

Let us say that an occasion for comparative justice or injustice arises when the material principles which determine desert on that occasion do so only by comparing the characteristics of two or more persons. When in quotation (a) Feinberg asserts that such principles "essentially involve comparisons between various persons", this must be read along the lines of quotation (b), i.e., to mean not only that the principles are comparative in form, but also that their determinations of desert cannot be logically derived from noncomparative determinations of desert. There is a crucial difference between a judgment which makes assign-




ments of comparative desert and a judgment which makes a determina- tion or assignment of desert on irreducibly comparative grounds. In the latter case, no set of noncomparative facts of any kind" about persons, and no set of such facts combined with any set of comparative facts which do not determine deserts, logically implies the comparative deserts of persons. In this sense the assignment of deserts is irreducibly comparative.

Suppose that Smith scores a 90 on his exam, where that grade is determined noncomparatively (it is not the result of any curve). Suppose our material principle of justice is the comparative one that those in the class who are in the top 10% deserve an A. From just the fact that Smith scored a 90 we cannot deduce that he deserves an A. Moreover, without our principle of comparative justice, we cannot deduce that Smith deserves an A from the fact that he scored a 90, together with any set of facts about what he noncomparatively deserves (nor even from any set of those facts together with the comparative fact that Smith is in the top 10% of his class). Thus, the letter grade Smith deserves cannot be derived from any set of noncomparative facts about him, whether those facts are desert-determining or not, nor from any such set of facts combined with any set of comparative facts which do not determine desert.

Now let us take another case. Suppose that what grade a student deserves is determined by his score on an exam, where that score is not the result of a curve, i.e., what his grade should be is determined in part by a material principle of noncomparative justice. Suppose that Smith scores a 90, and that since the principle in question states that anyone scoring 90 or above deserves an A, Smith deserves an A. Suppose, also, that Jones scores a 95 on the exam, and that consequently, he deserves an A as well. It follows from these facts that Smith and Jones are equals, that they both deserve an A, that they are equal in desert when it comes to how they should be graded. These facts, though comparative in form, are nevertheless derivable from other facts which determine the individual deserts of Smith and Jones noncomparatively. Hence, the comparative fact about the deserts of Smith and Jones in this case does not introduce any kind of comparative justice.

The foregoing should explain the sense in which we must understand Feinberg's statement that comparative principles of justice essentially



172 JOSHUA HOFFMAN

involve comparisons between persons. As we have noted, it is com- patible with this understanding of comparative principles of justice that a principle of justice or fact about what people deserve or to what treatment they have a right be comparative in form without being a principle of comparative justice or a fact which is explained by a principle of comparative justice.

There is a corollary of the foregoing theory of comparative justice. It is that it is impossible for there to be an act or situation of a person which calls for a certain treatment on the grounds of a principle of comparative justice, without there being at least one other act or situation of a person which calls for a certain treatment on the same grounds. Suppose, for example, that in a situation where a student deserves an A for being in the top 10% of the class, a B for being in the next 10% of the class, and so forth, Jones deservedly receives an A. Then there must be other students who merit certain grades on the grounds of the same comparative principle. Otherwise, there could not have been any way to determine that Jones deserved his A.12

We may now characterize a noncomparative material principle of justice as one which is not comparative. And we can observe that it is possible for there to be an act or situation of a person which calls for a certain treatment on the grounds of a principle of noncomparative justice, without there being any other act or situation of a person which calls for a certain treatment on the same grounds. This is because noncomparative principles of justice determine desert or call for a certain treatment on the basis of noncomparative characteristics of persons, so that it is always accidental whether or not the principle applies to the act or situation of one person or of more than one person. For example, suppose that the principle for determining what grade a student deserves is the percentage of correct answers he provides on an exam. It is possible for just one student to deserve a certain grade (he might be the only one in the class, or the only one who took the exam).

Thus far, I have argued that Feinberg's (1) is true, that his (3) and (4) are false, and that he has not provided any support for his thesis (2).13 Let us continue with a look at his thesis (5). According to (5), the same treatments of persons can be both noncomparatively just and compara-




tively just, or noncomparatively just and comparatively unjust, or noncomparatively unjust and comparatively just, or noncomparatively unjust and comparatively unjust. He says:

Applying the distinction between comparative and noncomparative justice to the real world is not easily done. The distinction between concepts may be clear enough, but instances of each are rarely pure, any given example of one being likely also to have elements of the other . .. On many occasions for justice, both comparative and noncomparative principles apply ... When principles of both kinds apply to a particular case, often enough the duplication is benign, and what is just according to one principle is also the treatment prescribed by the other. On other occasions, the relevant comparative and noncomparative principles cut in opposite ways to the stupefaction of 'the sense of justice.' 4

Feinberg offers some examples to back up this claim. As an example of a treatment of persons which is noncomparatively unjust, but comparatively just, Feinberg offers the case (call it Case 1) of a society that punishes illegal parking by disembowelment and beheading, but which applies this punishment "uniformly and without discrimination to all offenders".15 I agree with Feinberg that rules which prescribe certain punishments for certain acts are typically rules of noncomparative justice, and (of course) a society which punishes parking offenders by disembowelment and beheading is a society which practices noncomparative injustice.

However, Feinberg's assertion that in Case 1 comparative justice is done to parking offenders seems incorrect. There does not seem to be any material principle of comparative justice which applies in that example. Since no such principle applies, no comparative injustice is done to parking offenders, but it does not follow that comparative justice is done to them. Rather, it seems (at least from the description of the example Feinberg gives) that no treatment of parking offenders is called for based on a principle of comparative justice. Feinberg thinks that because equals are treated equally, etc., in his example, that comparative justice is done, but as we have seen, P1 is not specifically a principle of comparative justice. That all parking offenders who are apprehended are disemboweled and beheaded implies that the same noncomparative injustice is done to each of those offenders. Of course, consistency in the cause of injustice is no virtue, and is certainly not a form of (comparative) justice. Feinberg's reading of his example implies



174 JOSHUA HOFFMAN

that a principle of justice (P1 ) requires us, other things being equal, to prefer treating all unjustly to treating some unjustly, a conclusion which is, I think, highly unintuitive.16

What does P1 require of us in Feinberg's example? It requires that we treat all of those who are equal in desert equally with respect to their deserts. Hence, it requires that we not disembowel and behead any of the parking offenders, since they are all equal in not deserving that treatment. It certainly does not require that if we unjustly disembowel and behead some of the offenders, then we should go ahead and do that to the others! I conclude that Case 1, and others like it, are not in fact cases of treatments of persons which are condemned by principles of noncomparative justice and sanctioned by principles of comparative justice.

As an example (call it Case 2) of a treatment which is "condoned by noncomparative principles but condemned as unjust by comparative ones," Feinberg offers the Augustinian theory of salvation.17 On this theory, no human being deserves (noncomparatively speaking) to be saved. God, out of mercy, nevertheless chooses to grant salvation to a few, while the rest are consigned to hell. Here, Feinberg says, we have a case where no one is done a noncomparative injustice (assuming the lack of noncomparative injustice in the damnation of any given human), but where the treatment handed out is unjust on comparative grounds. But the claim that a comparative injustice is done in this case is again mistaken. Once again, no comparative material principle of justice applies to the case as described. Nor does P1 condemn the treatment of humans by the Augustinian God. On the Augustinian theory, remember, no human deserves to be saved, but justice does not forbid the salvation of such a being; the divine salvation of a human soul is therefore a supererogatory act. Those humans who are damned cannot claim that they deserve to be saved, while those who are saved have much to be grateful for, just as a stranger cannot say that you have treated him unjustly if you fail to benefit him through extraordinary charity when you do benefit someone else no more deserving than he through such an action. Pl says only that we must treat people as justice requires, and that those of whom justice requires the same treatment should be treated equally. It says nothing about how we should treat people when that treatment is not a matter of justice. In




particular, it doesn't say that we cannot do more for some people than justice requires unless we do the same for every person. In cases of supererogation, doing more for someone than justice requires is not doing something for him which justice requires not to be done for him.18 I conclude that Case 2 and similar cases do not describe treatments which are comparatively unjust. Nor do they describe cases which are noncomparatively just. Feinberg concedes that in Case 2 people do not noncomparatively deserve or have a right to be to be saved. Hence, in Case 2 (and in others like it) no noncomparative principle of justice applies either. In fact, far from being a case where noncomparative justice is done and comparative injustice is done, Case 2 is a case where neither sort of justice applies (given Augustinian assumptions about the deserts and rights of humans).

Some may argue that while Feinberg's examples do not succeed as cases of conflict between principles of noncomparative and comparative justice, there may nevertheless be such cases. Consider the following (call it Case 3).19 Suppose Jones is hired by an employer to do certain work at a certain wage, and that Smith is hired by the same employer to do the same work at a higher wage. There are no features of Smith and Jones apart from their contracts (e.g., seniority) which justify their different wages. It might be argued that (1) the wage a person noncomparatively deserves or has a right to is determined by the contract between an employer and employee, and (2) people who do the same work for the same employer deserve or have a right to, other things being equal, the same wage. If (1) and (2) were true, then (3) there could be situations like the one described where noncomparative justice was done but comparative injustice done, and by the same treatments.

I have the following observations about Case 3. First, conclusion (3) can be avoided in two ways. It can be avoided by rejecting premise (1), and it can be avoided by rejecting premise (2). One might reject premise (1) on the grounds that a contract with an employer is not just if others who do the same work and are otherwise no more deserving are paid more by that employer. This would be to hold that a material principle of comparative justice "takes precedence" in these circumstances over one of noncomparative justice. Or one might reject premise (2) on the grounds that material principles of noncomparative



176 JOSHUA HOFFMAN

justice (having to do with contracts) take precedence over those of comparative justice (having to do with equal pay for equal work). It is not obvious to me what to say about this kind of case, what to say about whether or not there is a conflict here between comparative and noncomparative justice. The whole issue of what wages workers deserve and why is highly controversial, and its resolution would take us far afield into problems of political philosophy and economics.20 A final observation is that whatever we say about it, Case 3 does not support Feinberg's assertion that it is the applicability of Pl and P2 to Case 3 which gives rise to a conflict between comparative and noncomparative justice. All of Feinberg's own examples of conflict are based on this assumption. By showing that Feinberg's assertion is mistaken, one eliminates an otherwise huge source of conflict between principles of comparative and noncomparative justice. Such conflicts would arise (on Feinberg's view) whenever some, but not all (of a set of persons) receive noncomparative justice, and whenever all receive noncomparative injustice. My own conclusion is that even if conflicts between principles of noncomparative and comparative justice can arise, they would do so in a very limited range of cases, and only in virtue of the applicability to each of those cases of material principles of both kinds of justice.

From what Feinberg says about Case 1 and Case 2, we can infer that on his view, any situation in which two or more persons are treated with noncomparative justice is a situation in which they are treated with comparative justice. Thus, consider the following situation (Case 4). Several drivers exceed the speed limit by 15 miles per hour, all are apprehended, and each receives the same punishment in accordance with the law. Feinberg would say of Case 4 that noncomparative justice is done to the speeders and that comparative justice is done as well, since equals are treated equally. I agree that P1 and P2 apply in Case 4; but this is only because P1 and P2 apply in all cases where justice is done or not done. Actually, though, Case 4 is one to which only noncomparative principles of justice apply. Moreover, the fact that those who are equal in desert are treated equally is just a logical consequence of the facts about the just treatment of each individual, where the justice of that treatment is determined noncomparatively.




Hence, it is false (or a mistake to think) that both principles of noncomparative and comparative justice apply to situations like Case 4.

On the other hand, consider the following type of case (Case 5). A teacher lays down the principle that a student will receive an A if his average is above 90%, or if the student has an average which is in the top 10% of the class. This principle appears to be a mixed principle of justice, i.e., it combines noncomparative and comparative elements. Similarly (Case 6), the principle governing the awarding of prizes for a footrace is that a runner will receive a gold medal if either he comes in first place or runs the race under a certain time. Here, too, noncomparative and comparative elements determine desert. If a student who both has an average above 90% and is in the top 10% of the class receives an A, then it seems that we should say that both noncomparative and comparative justice is done. And if a runner who both finishes first and runs the race under the designated time is awarded a gold medal, then here, too, it appears that both noncomparative and comparative justice are done. In conclusion, although situations like Feinberg's Case 4 are not occasions for both noncomparative and comparative justice, it appears that such occasions are possible.

Finally, Feinberg countenances situations in which both noncomparative and comparative injustice are done. It appears that he would make that claim about the following (Case 7). Each of a group of persons is punished unjustly (suppose that all are innocent), but some are punished more severely than others. However, while Case 7 does involve noncomparative injustice, it does not involve comparative injustice. The inequality in the treatment of the various innocent persons is just a logical consequence of the differing degrees of noncomparative injustice that are done to them. But as we have already seen, it is possible to describe circumstances in which both kinds of injustice are done. Case 6 provides us with an example. Suppose a runner both finishes first in a race and also runs the race in less time than is required to deserve the gold medal. If that runner is then denied the gold medal, he suffers a double injustice, one noncomparative and one comparative. Thus, our conclusion here is that while situations like Feinberg's Case 7 are not occasions for both noncomparative and comparative injustice, such occasions are possible.



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Our examination of Feinberg's thesis (5) has resulted in the following conclusions. First, he has not provided examples of treatments which are either noncomparatively just and comparatively unjust, or noncomparatively unjust and comparatively just. Nevertheless, such cases may be possible, although it is not clear that they are. Even if they are, conflicts between principles of comparative and noncomparative justice are much rarer than Feinberg would lead us to believe.21 Secondly, although it is possible for the same treatment either to be both noncomparatively and comparatively just, or to be both noncomparatively and comparatively unjust, Feinberg has not provided examples of this sort either. And cases of double justice or injustice are also much rarer than Feinberg thinks.

"When judgments (as distinct from actions) are said to be unfair to the person judged," Feinberg observes, "the injustice alleged is typically of the noncomparative kind."22 Hence, Feinberg's thesis (6). As examples, he offers occasions when an innocent person is judged guilty, when a witty book is judged dull, when a thorough discussion is judged superficial, or when a valid argument is judged invalid.23 These examples are not implausible. But a more difficult case for Feinberg is the case of judgments which are comparative in form. He mentions the example of a judgment of the form, 'A has more merit than B. '24

Feinberg has great difficulty assessing this sort of judgment in the light of his theory of comparative justice, but after a rather convoluted and implausible argument, concludes that the sort of judgment in question is noncomparatively unjust when invidiously false.25

This conclusion is mistaken. Whether or not a judgment of the form 'A has more merit than B' is, when invidiously false, noncomparatively or comparatively unjust depends, I think, on what sort of merit is being compared. If the merit is noncomparative, then the corresponding judgment is noncomparatively unjust, and if the merit is comparative, then the judgment is comparatively unjust. For example, if Jones has an average of 95 in a class where grades are awarded according to one's average in the class, and Smith has an average of 85, then if I judge that Smith deserves a higher grade than Jones, I have falsely assessed the relative noncomparative deserts of the two students. The facts which make my judgment about Smith and Jones false are noncomparative characteristics of Smith and Jones which determine their respective




noncomparative deserts. In falsely assessing those deserts, I therefore do a noncomparative injustice. The same false judgment, made in circumstances where grades are awarded by comparative performance, would be comparatively unjust for reasons paralleling those just spelled out. Thus, not all judgments of the form, 'A has more merit than B' involve noncomparative justice, and Feinberg's thesis (6) is mistaken.

A final claim of Feinberg deserves critical comment. He remarks at several points that comparative injustice is always a matter of "arbitrary and invidious discrimination of one kind or another."26 The idea that comparative injustice involves arbitrary discrimination is related, of course, to his belief that P1 is the basic principle of comparative justice. From what I have said about the actual status of P1, however, it follows that arbitrary discrimination is not necessarily a matter of comparative injustice rather than noncomparative injustice. If Jones deserves an A in the class because he has a 95 average (when grades are determined noncomparatively by the average of one's scores), and if Smith also deserves an A because he has a 95 average, and if Jones receives an A but Smith does not, then (other things being equal) one may conclude that there has been arbitrary discrimination against Smith. Yet the injustice done here is of the noncomparative sort, and the existence of invidious discrimination is just a logical consequence of facts about how each student was treated in the light of his noncomparative deserts.

Moreover, some cases of noncomparative injustice and some of comparative injustice are characterized not by invidious arbitrary discrimination, but by invidious arbitrary nondiscrimination. When we treat persons alike who should be treated differently, we act in violation of P1 as much as when we treat people differently who should be treated alike.27 Hence, invidious discrimination is neither a feature of all cases of comparative injustice nor exclusively a feature of cases of comparative injustice.28

NOTES

I In "Non-comparative Justice," The Philosophical Review, 83 (1974), pp. 297-338, reprinted in Rights, Justice, and the Bounds of Liberty (Princeton, Princeton University Press, 1980), pp. 265-306, and in Social Justice (Englewood Cliffs, N.J., 1973), p. 98ff. All page references to the former work are from the reprinted version.



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2 SocialJustice, p. 99. Ibid. Feinberg doesn't actually state this principle as formulated, but he suggests it by

his remarks. Phillip Montague, in his "Comparative and Non-comparative Justice," Philosophical Quarterly, April, 1980, p. 132, also understands Feinberg to be saying that something very much like the principle stated in (4) is the basic principle of noncomparative justice. Feinberg emphasizes that "there is a great variety of kinds of human activity in which questions of justice can arise . . ." ("Noncomparative Justice", p. 265), and he mentions "allocations, punishments, and exchanges" (Ibid.) as three general kinds of such activities. I am not sure that I have succeeded in expressing the principle stated in (4) in such a way that it covers all of the kinds of activities "in which questions of justice can arise", but that is my intent. 4 Phillip Montague (op. cit.) has also criticized some of Feinberg's theses. As I will explain below, my criticisms of Feinberg are not always the same as those of Montague, and in the end, I have some fundamental disagreements with Montague as well about the true nature of the distinction between comparative and non-comparative justice.

"Noncomparative Justice," p. 266. 6 Montague has said that "only Joel Feinberg among contemporary philosophers has explicitly distinguished between cases in which the justice of an individual's treatment depends on how his treatment compares with that received by others, and cases in which questions of justice can be answered without such comparisons." (op. cit., page 132) Note, however, that in least at one place just cited (quotation (a)) Feinberg doesn't characterize comparative justice as a matter of how an individual's treatment compares with that of others. Instead, Feinberg more accurately characterizes a principle of comparative justice as one which determines a person's due only by reference to his relations to other people. These characterizations are very different. Montague appears to have unwittingly fallen into the error of confusing a mistaken characterization loosely associated with Aristotle's dictum about treating equals equally, etc., with the correct characterization. This isn't surprising, for, as I shall argue below, Feinberg is guilty of the same confusion. 7 Social Justice, p. 100. Feinberg says that he borrowed the terminology of "formal" and "informal" principles of justice from Louis Katzner (see note 4 on the same page).

See note 3, above. "The clearest cases of noncomparative injustices," Feinberg says, "are cases of unfair

punishments and rewards, merit grading, and derogatory judgments." He also mentions as possible cases of noncomparative justice "when agreements, transactions, and transfers between free and equal bargainers are unfair, or when promises are wrongfully broken . . ." ("Noncomparative Justice," p. 268.) Some of these claims will be discussed below, but for now we can certainly agree with Feinberg that punishment and reward typically fall under principles of noncomparative justice. "' Remember Feinberg's own words: ". . . in other cases, a person's due is determined only by reference to his relations to other persons." (See note 5, above.) A principle which asserts that a student deserves an A just when he is in the top 10% of the class, etc., is clearly a principle which determines a person's due only by reference to his relations to other persons, namely, by his test scores relative to the scores of other students. Feinberg says that typical occasions for comparative justice are "(i) when competitive prizes are to be awarded, (ii) when burdens and benefits are to be distributed, (iii) when general rules are to be made, administered, or enforced." ("Noncomparative Justice," p. 267.) This list is questionable. (i) seems unchallengeable, but as for (ii), the distribution of burdens and benefits may or may not involve comparative justice, depending on whether or not such burdens and benefits are distributed on the basis of comparative or noncomparative characteristics. Suppose a




principle of justice were to require that a parent provide in his will that each offspring receive 10% of his estate (obviously this would not work if there were more than ten children, so this is not a realistic principle, but let us overlook this problem for the sake of the argument). This would be a principle of noncomparative justice, for what a child would be due in that case would not depend on anything but his being an offspring of that parent, and would not depend, for example, on what the child's siblings deserve. On the other hand, suppose that our principle of justice were to require that the parent provide in his will that each offspring divide 50% of the parent's estate equally with his siblings. This would be a principle of comparative justice, since we cannot determine what a child is due just by looking at him; rather, we must relate him to others in order to judge what he is owed. (iii) is implausible as well, for whether or not the making, administering, or enforcing of general rules involves comparative or noncomparative justice depends on whether or not the rules themselves are rules of comparative or noncomparative justice. If one enforces a law against robbery unjustly (by punishing the innocent or by letting the guilty go free), then one does noncomparative injustice. If one distributes competitive prizes unfairly, then one does comparative injustice. Feinberg's list of the occasions for comparative justice indicates his confusion of a comparison of the deserts of persons with the comparative deserts of persons. l By a 'fact' here I mean either a non-evaluative or an evaluative fact. Thus, I am not using the term in such a way that there is a contrast to be drawn between facts and values. 12 Michael Zimmerman has suggested a possible counterexample to the claim made here. Suppose that Jones is graded comparatively, by his rank in a class of students, which is determined by his overall test scores compared to that of others, but that all of the other students are not graded (they might be auditors who take the exams but receive no grade). Isn't this a case of a situation of a person which calls for a certain treatment (i.e., giving a certain grade to Jones) on the ground of a principle of comparative justice, but where there is no other person for whom a certain treatment is called for on the same ground? In reply, I would say that in this example, the desert- determining characteristic of Jones and of the other students is rank in the class, and the desert which is determined by this characteristic is not that the student should receive a certain grade, but that the student should receive a certain grade if graded. In virtue of their respective performances on the exams, Jones and all the other students deserve to receive a certain grade if graded. In the example I gave in the text, I was assuming that all of the students in the class were to receive grades. Consequently, there was no need to distinguish between their deserving to receive certain grades, and their deserving to receive certain grades if graded. 13 Even though Feinberg has not provided any support for (2), the thesis that there are formal principles distinctive of comparative and noncomparative justice, respectively, the preceding discussion shows that there are material principles of comparative justice, and different material principles of noncomparative justice. 14 "Noncomparative Justice", p. 278. 15 Ibid.,p.279. 16 Montague comes to a similar conclusion about this sort of example. He observes that according to Feinberg, ". .. principles of comparative justice purportedly require that every member of a comparison class be deprived of his due if any member of that class is deprived of his due. And this surely cannot be right. Suppose, for example, that A, B, and C, comprise a comparison class, that each deserves some benefit, and that D deprives A but not B and C of that benefit. If we accept what Feinberg says about comparative justice, D would then have a reason, arising from a principle of justice, for depriving B and C of their just deserts. This result strikes me as quite plainly unaccept-



182 JOSHUA HOFFMAN

able, and it remains unacceptable even if, as Feinberg suggests, non-comparative principles routinely override comparative ones when conflicts occur." (Op. cit., p. 133). The only difference between the type of case that Montague is discussing and Case 1 is that in the former certain persons are deprived of benefits they noncomparatively deserve, while in the latter persons are punished in ways that they do not deserve. This does not effect the point that Montague is making, which applies to both sorts of cases. 17 "Noncomparative Justice", p. 281. 18 If no case can be made on the Augustinian view of man and God that God is unjust in comparative terms, nevertheless the case can possibly be made that on this view God is arbitrary. This arbitrariness may be incompatible with divine perfection. It certainly is incompatible with the principle of sufficient reason. 19 I thank Terrance McConnell and Michael Zimmerman for emphasizing the impor- tance of this example. 20 For a good discussion of some of the issues involved, see Feinberg's Social Philosophy, pp. 107-117. 21 Feinberg says of those cases which he believes to involve conflicts between the two sorts of justice that "the oppositions between comparative and noncomparative principles illustrated by these examples are not radical conflicts originating in the concept of justice itself of the kind that would render the very coherence of that concept suspect. I have given no examples where it is conceptually impossible to have justice both ways, cases in which satisfaction of a noncomparative principle requires violation of a comparative one, or vice versa" ("Noncomparative Justice", p. 284). What Feinberg says here of his cases of purported conflict, I say of situations like Case 3: if they do involve genuine conflicts between comparative and noncomparative justice, then such conflicts are always avoidable in principle. There is no implication of a genuine moral dilemma. 22 Although Feinberg says here that the injustice of judgments is "typically" of the noncomparative kind, he offers no examples of the injustice of judgments which are of the comparative kind. I am therefore puzzled by the inclusion of the qualifier.

Feinberg remarks that he is "concerned throughout [his] essay with the 'effect' and not the 'quality' of injustice." He quotes Josef Pieper approvingly: "in the realm of justice, good and evil are judged purely on the basis of the deed itself, regardless of the inner disposition of the doer; the point is not how the deed accords with the doer, but rather, how it affects 'the other person."' ("Noncomparative Justice", p. 284, n. 14). In other words, the justice or injustice of a treatment is determined by how the person treated is affected by that treatment, and not by what motives lie behind the treatment. I have shared Feinberg's assumption in this paper. It is worth noting that given this assumption, Feinberg should be thinking of judgments as acts, and not as mere unexpressed beliefs (though it is by no means clear that Feinberg consistently thinks this way). A belief which is not expressed in some fashion would not, on Feinberg's assumption, be an occasion for justice or injustice. If we can speak of unexpressed beliefs as "just" or "unjust" at all, then they are just or unjust in some nonbasic or derivative way, in virtue of their tendency to motivate just or unjust actions or treatments. 23 "Noncomparative Justice", p. 270. 24 Ibid. 25 Ibid., pp. 270-271. 26 Ibid., p. 267. 27 Montague, op. cit., pp. 135-6, appreciates this point. Curiously, Feinberg appears to as well in Social Justice, pp. 100-101. But in "Noncomparative Justice", his insistence that comparative injustice always involves arbitrary discrimination seems to indicate that he has overlooked his own point from that earlier work.




28 I would like to thank Michael Zimmerman, Terrance McConnell, Gary Rosenkrantz, and an anonymous referee for Philosophical Studies for helpful comments on earlier drafts of this paper. I would also like to thank the University of North Carolina at Greensboro for supporting work on this paper with a Summer Excellence Fund Research Fellowship.

Department of Philosophy 216 Foust Building University of North Carolina at Greensboro Greensboro, NC 27412 USA



A New Theory of Comparative and Noncomparative Justice

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