Goals, constraints and what is fair
I enjoy a public good, but I don't pay for it. I accept a benefit, but I let others carry the burden for me. By benefitting without providing am I not taking an unfair advantage of others? Don't others have an equal claim to sit back and ride free? My not sharing the burden, but complacently enjoying the fruits of other people's labor and investment seems unfair. Should I contribute voluntarily to the public goods in order to treat others fairly and avoid treating them unfairly? If so, then fairness seems to provide the solid grounds of justification we are seeking.
I will consider two ways to appeal to fairness as a strategy for opposing the free rider. The first considers fairness as a goal to be achieved. By free riding one is making the world a more unfair place. If one wishes to maximize fairness then one will avoid free riding. The second considers fairness as a constraint on permissible actions, a "side constraint", as Nozick puts it. If fairness is a side constraint, then one ought to perform only those actions that are fair, even if it makes the world more unfair. The agent has a duty to threat others fairly. The free rider, according to this argument, treats at least some people unfairly.
Arguments from fairness are most applicable to situations which meet certain conditions, such as when an ongoing scheme of voluntary provision has been established, the benefits outweigh the costs, and exclusionary provision of the good is not feasible. In these situations, fairness arguments seem more persuasive than any of the theories of voluntary provision that we have previously considered. However, even under these favorable conditions, arguments from fairness still fail to justify voluntary provision. I will attempt to demonstrate this for both ways of accusing the free rider of unfairness. I should note, however, that one version of the fairness argument does succeed when the rate of voluntary provision is high (more than half of the population is contributing). So the fairness argument is more than just initially plausible, but its appeal is limited.
Apart from whether one views fairness as a constraint or as condition to be maximized, one should note two additional issues that have been surprisingly neglected by philosophers: "What is fair?" and "Why be fair?". These two questions deserve to be distinguished, just as the analogous questions, "What is equality?" and "Why threat people equally?" deserve separate consideration when thinking about equality, a notion closely related to the concept of fairness. Naturally, while these two questions are distinct, how we answer one will have considerable bearing on how we answer the other. In particular, by answering the question, "What is fair?" we are really saying what kind of unfairness we ought to avoid. Identifying those features that make a situation unfair has strong implications for why we ought to avoid such situations.
I will not attempt a full analysis of the concept of fairness here. In particular, I will not say much about why unfair situations or unfair actions are bad. Instead, I will briefly outline four possible answers to the first question, "What is fair (or unfair)?", as it applies to free riding. That is, exactly what is unfair about free riding?
One answer is that there is an inequality in the distribution of benefits and burdens. Not everyone that enjoys the benefit shares the burden. Their advantage seems unfair. Of course, it can't be just the inequality that is unfair. If I win and you lose a lottery, my benefit is greater than yours, although we both paid the same price for a ticket. But at least our chances at winning the prize were the same. If we redescribe the package of benefits and burdens to include expected outcome and exclude actual outcome then the notion of fairness as equality seems more plausible. When everyone contributes to a public good each person's basket of benefits and burdens (suitably described) is the same. When someone fails to contribute, her basket contains a more desirable mix of goods and bads than any contributor's basket. This seems unfair.
A second proposal considers a situation to be fair if each person's claim to a good is satisfied in proportion to its strength. A person has a claim to a good if others have a duty to provide the person with that good. If each person has an equal claim to a particular good then a fair situation will satisfy each person's claim equally. One particular good is the advantage of benefitting from a public good without contributing to its production. If there are free riders among providers, each person's claim to this good is not satisfied equally. The free-rider, who has no more of a claim to the advantages of a free-ride than the providers, takes more of this good for herself.
A third proposal explicates the unfairness of free riding in terms of non-coercive exploitation. People who provide a good for themselves are vulnerable to exploitation. Because of practical limitations, they cannot feasibly exclude others from enjoying these goods. If the contributors could provide the good privately, there would be no need for voluntary arrangements. Because they can't provide the good privately, the providers are vulnerable to those who want to exploit their weakness. Not all exploitation involves positive harm or coercion and free riding is a good example of how exploitation is possible without coercion.
Finally, a fourth suggestion is that where there is free riding some people envy the position of others. Fair situations are without envy and the more envy people experience, the more unfair a situation is. One could render this position less dependent on human psychology by focusing on the legitimate grounds for envy, rather than actual preferences or emotions.
Each of these four interpretations is compatible with either of the first two approaches that I outlined earlier. The distinction between fairness as equality in benefits and burdens, as equality in the satisfaction of equal claims, as freedom from exploitation, or as freedom from envy, cuts across the distinction between fairness as a goal and fairness as a constraint.
One's morality might require that one always accept a burden equal to the benefit one enjoys, even if this somehow encourages others to act differently. A concern for balancing burdens and benefits might thus take the form of a side constraint. Obviously, it can also be a maximizing conception.
Likewise, one can interpret the condition of satisfying equal claims also in either maximizing or side-constraint terms. One might want to allow that satisfying some claims unequally is permissible if it improves the overall equality of claims satisfaction, say by preventing a greater imbalance in the future. Such an interpretation would be a maximizing one. On the other hand, one might wish to say that each person has a duty to satisfy equal claims equally. What is important is that one not be an agent that satisfies his own claims while ignoring others', even if one knows that this will lead more people not to fulfil the same duty towards others.
One's moral theory might require one to minimize exploitation. According to such a theory, one ought to minimize expected exploitation, even at the price of doing a little exploiting oneself. The concern to avoid exploitation need not be taken as a side constraint. Exploiting the vulnerable might be wrong because it is a bad state of affairs for people to be exploited, or even a bad state of affairs for people to be exploiters. One ought to avoid actions that increase exploitation and favor actions that minimize exploitation (or, more accurately, the expectation of exploitation). Here the wrongness of free riding resides in objectively describable states of the world.
Alternatively, it might be wrong because being an exploiter or engaging in an act of exploitation is an impermissible act for an agent. One ought to avoid exploiting others, whatever the cost, even in terms of other acts of exploitation. Arguing in this way, the wrongfulness of free riding is agent relative, what is wrong is my being an exploiter, not causing the world to be such that someone is an exploiter.
Finally, one may be especially concerned to reduce the amount of envy in the world, or to not accept benefits oneself that would provoke envy. So one can mix and match theories of what is fair with theories about whether moral injunctions take a maximizing form or the form of a constraint on what is permissible for that agent to do.
I need not evaluate the comparative merits of taking the fairness of voluntary provision to be equality in the distribution of burdens and benefits, proportionality in the satisfaction of claims, the avoidance of exploitation, or the reduction of envy, in order to conduct my attack on the two versions of the argument. The reader is free to substitute the reader's own preferred understanding of what is unfair about free riding. Perhaps free riding violates our respect for others as free and equal persons, and this violation turns out to be different from any of the above interpretations of unfairness. Whatever our understanding, I think the view can be subsumed under either the maximizing or side-constraint approach.
Let's consider the maximizing alternative first.
Even in favorable situations of voluntary provision, a significant number of people fail to contribute to the cost of provision. Cooperation is not total, but only partial. In fact, in many actual situations of voluntary provision, only a minority of all beneficiaries contribute. For example, less than 15% of all listeners to public radio support the radio stations that provide the listeners with their signal. If I contribute in such a situation, I stop exploiting one group of people, but become exploited by another group. Which leads to more exploitation, contributing or not contributing?
I suggest that we cannot answer this question unless we rely on some metric to calibrate degrees of unfairness. Our reliance may not be explicit, but it is nonetheless present and inescapable. Once we try to explicitly formulate a few possible measures of unfairness, we'll see that for many common public good situations, as measured by a quantitative metric, contributing is not necessarily more fair than not contributing. In many situations, perhaps in the most common ones, taking advantage of others will be more fair than allowing others to take advantage of oneself. Whether giving or free riding produces more unfairness will depend on the metric used and the ratio of contributors to free riders. Only in the very rare circumstances in which no one else is free riding can one avoid the unfortunate choice between being a rogue and a patsy.
Or is there a third alternative? Can we avoid both treating others unfairly and allowing others to treat us unfairly by choosing a third way, one which appears to obviate the need to introduce a rigorous metric? Rather than suffer exploitation by contributing to a public radio station, say, or exploit others by not contributing, I might sidestep the whole issue by simply not listening. There are other public goods besides public radio which people have the freedom not to consume, i.e., goods whose consumption is voluntary. I can avoid visiting natural areas that have been protected by the generosity of others. When in the hospital, I can refuse donated blood and only accept purchased blood. Rather than pay the firm that copyrights a computer program and distributes it as shareware, I can simply refrain from using these programs and only use commercial software (though even here one is still exploited by those who copy these privately sold programs illegally--do doubt the price of commercial software is significantly higher as a result of this illegal activity).
By not enjoying the good and not contributing to it, one avoids both types of unfairness, the unfairness associated with contributing and the unfairness associated with not contributing. In such situations, does one do the most to reduce unfairness by not consuming the public good? If so, this would not provide an argument in favor of contributing to a public good. Rather, it would suggest that a concern for fairness would counsel against contributing. This would simplify matters considerably, but as it happens, rejecting the fairness argument is not quite so easy.
The option of not consuming a public good does not actually allow us to avoid comparing the relative unfairness of different states. Someone who avoids enjoying a public good, in order to avoid being exploited, suffers as a result of the behavior of free riders. This itself is unfair. While it is true that no one is entitled to the benefits of voluntarily provided public goods, still the abstemious person's opportunities are restricted by the free riding of others. The free rider prevents her from contributing towards, and enjoying, a public good without exploitation. This seems unfair, but just how unfair depends on how we measure unfairness. We need a metric for unfairness.
Further, even if the abstaining by some because of the free riding by others were itself not significantly unfair, not all voluntarily provided public goods allow for voluntary consumption. Clean air serves as an obvious example. I may choose to drive my car more or less, but I cannot choose to forgo the benefit of breathing the clean air provided by the restraint of others. We especially need a method for comparing levels of unfairness for situations in which it is not possible to avoid enjoying the benefits of a public good.
Fairness and equality are closely linked. One way to measure fairness is to use the techniques that already exist for measuring equality. One of these techniques is to add up all the differences between each person and everyone else who is better off than that person. The bigger the number the more inequality and hence the more unfairness a situation contains.
For example, suppose three people contribute $10 each to a public good and two contribute nothing. First we sum the differences for each contributor. There are two free riders, each $10 better off than the contributor, so adding together these difference, we get $20 for each contributor. There are three contributors, so adding together the differences for each, we get $60. Hence, $60 is the total measure of unfairness of this situation.
If two people contribute and three free ride, the unfairness is the same amount, 2x(3x$10)=$60. Hence, for someone who knows that two people will contribute to a public good and two others will not, it makes no difference whether that person does or does not contributes, at least with respect to fairness as measured in this way.
Where contributors are in the minority, contributing actually reduces the level of fairness, while contributing improves the level of fairness when contributors are in the majority. How we view this result depends on whether we see the pitcher as half full or half empty. We will return to this point later.
If we consider heterogeneous groups, we find that this approach faces a minor difficulty. I might be more willing to pay for a public good than you would be. If I contribute the full value of the good for me, this measure of fairness would require you to give an equal amount. One may avoid this objection by stipulating that we measure fairness by considering the whole package of benefits and burdens. If care less about the good than me, you would maximize fairness were you to give only as much as would make our combined packages equal. This would direct you to give fewer dollars than me because otherwise your total position, considering both benefits and burdens, would be worse than mine. This still complicates the task somewhat, but the weighing of benefits and burdens is at least possible in principle and concepts such as the Lindahl equilibrium provide a theoretical technique for measuring relative benefits in heterogeneous populations.
Measuring the level of envy in a group is a second possible procedure, which produces practically the same results. Many economists favor using envy to measure unfairness, perhaps in part, because it allows them to handle differences in tastes while avoiding interpersonal comparisons of utility. I envy you if I prefer your bundle of goods to my own. No interpersonal comparisons there, just ordinary, noncontroversial, individual preference. But if we interpret envy so that it depends on people's actual psychological states, we run into serious problems.
First, we may leave aside the distracting connotations of the word, "envy". A person does not envy everyone whose circumstances he would prefer to his own. A peasant is unlikely to envy a king, but more likely to envy another peasant slightly more prosperous than himself. We will follow the formal definition of the word in terms of preferences over goods.
If my tastes differ from yours, then a division of apples and oranges which leaves me with 99 apples and you with one orange may not provoke any envy. You may still prefer one orange to my 99 apples. But such a division is hardly fair.
One way to get around this objection is to couple the measurement of envy with a measurement of efficiency. If one allows for free trade, you will likely prefer my 99 apples in order to be able to trade them for more than a single orange. One could say that fair allocations are those without envy after free trade. This is still inadequate, however, if the number and variety of people in a market are limited. If there are only a dozen other people and they are all like you and me, then you will still prefer receiving one orange to 99 apples. So we might restrict this test to large, diverse populations.
Problems remain. Introducing considerations of efficiency and population diversity saves the envy test at the price of incorporating features that seem extraneous to fairness. Intuitively, fair allocations have little to do with efficiency and naturally apply to many diverse situations, including small homogeneous populations. We still need an analysis that shows us why the example of 99 apples, while perfectly efficient, is not fair. This example survives as an instance of an efficient, envy-free allocation that is not fair. A fair allocation may also not be efficient. Suppose a flip of a coin gives me an orange and you an apple, I prefer apples to oranges, and there is no trading after the coin toss. The result is fair, but not efficient.
Finally, preferences are often poor guides to welfare. Suppose an allocation leaves me with an apple and you with an orange. I may perversely prefer whatever the allocation gives to you. After the allocation, I prefer your orange to my apple, but would have preferred an apple to an orange if you had been given an apple. If that is the case, then the allocation is fair although I envy your allotment.
Envy need not be interpreted in a way that accepts people's preferences uncritically. One may reinterpret envy along more objective lines by supposing that one person envies another if and only if she ought to prefer the other person's bundle. Then one may say as much as one likes about the conditions under which one person ought to prefer another's bundle. One might stipulate, for example, that one person ought to prefer another person's bundle if that bundle would make the person better off according to some list of attributes which make a life go well.
However we interpret the concept of envy, an intuitive way of measuring unfairness in terms of envy yields the same results as our previous method which measures unfairness in terms of inequality. This method instructs us to add together for each person the utility differences between that person's allocation and that of each person whose allocation she prefers. If we follow these instructions we will judge contributing to be more fair than not contributing when the majority of others are contributing and less fair when the majority of others are not contributing.
This result has a certain appeal. It agrees with our intuition that when there is wide participation, the duty of fairness compels us to perform our share, while we are free from this obligation when participation is rarer. While we must look elsewhere to justify contributing when the free riders constitute a majority, this remains one successful method of justification in some circumstances. As we will find another robust form of justification in the next chapter, our final picture will assume a slightly complex form.
So far we have considered measuring fairness in terms of equality, or the related method based on the concept of envy. We should consider a third possibility.
The method is simple. Sum the difference between what each person contributes to a public good (whether it is zero or some positive amount) and either the most generous contribution offered or the amount the public good is worth to that person, which ever is smaller. The higher the sum, the greater the unfairness.
If one were to maximize fairness according to this measure, one would contribute even when less than half of the population was not contributing. In fact, this method would lead one to contribute even if there is only one other contributor. Suppose I favor the idea of everyone donating $1,000 each to reduce the federal deficit. Were one other person in a country of more than 250 million to actually make such a voluntary donation while filing her federal tax form, then to conform to this theory, I should also contribute. Only by contributing do I minimize the amount of unfairness in the world. But this seems at odds with the intuition that it would be more unfair for two people to make a personal sacrifice than just one person, when no one else is participating. Indeed, some people really do give to reduce the federal deficit, but few of us who favor higher taxes to reduce the deficit believe that this thereby requires us to give as well.
One might object that all of the above proposals ignore an important possibility: people may care more about the unfairness others suffer than the unfairness they themselves suffer. One might even try to model each person's attitude formally, using a constant to represent the particular weight a person assigns to the unfairness others suffer, distinct from the weight she assigns to the unfairness she herself suffers. One way to do this would be to divide differences between one person's bundle and the bundles of others into two classes: those with positive and negative values. Thus a person might give more weight to differences in which her bundle is greater than another person's and less weight to differences in which her bundle is less than another person's. Each person would thus have her own theory of fairness: a weighted sum of the differences between herself and others.
This relativized theory of fairness has the advantage that it avoids the shortcomings of two extremes: not caring enough about the participation of others (as does the third theory which regards free riding as unacceptable even if one and only one donor participates) and caring too much (as does either of the first two theories, which regard giving as unfair without a majority of fellow participants). As one attaches greater weight to the differences between oneself and those who are less well off, the threshold point at which one will be inclined to switch from free riding to contributing will be lower, leading one to contribute when participation is less popular. As one attaches greater weight to the differences between oneself and those who are better off, the threshold will be higher, leading one to contribute only when participation is more popular.
The above suggestion is intriguing, but suffers from a couple of faults. First, as a matter of fact, people seem to care more about their own circumstances and the unfairness they themselves suffer than about the unfairness that others suffer. Second, whatever preferences people actually have, they should care equally about all forms of unfairness and not neglect the circumstances of anyone, including themselves. Otherwise, some people may be tempted into an excessive repudiation of their own needs and moral importance.
Measuring unfairness may seem an odd procedure. If measuring unfairness is absurd, this is no comfort to those who want to defeat free riding by appealing to fairness, for there is no action which leaves the fairness of the situation unchanged in every respect. If we abandon trying to measure unfairness, we must abandon the attempt to maximize fairness.
This concludes our discussion of methods for measuring relative unfairness. In the remainder of this section we will consider psychological effects of unfairness and a different way for a consequentialist to maximize fairness.
The proposals just considered are meant to measure objective unfairness. They do not depend on people knowing how much or even that they are being treated unfairly. Some harms, such as these, do not require that the victim be aware of the harm done to her. By exploiting someone, we harm her, make her worse off and treat her unfairly, in spite of her ignorance of the effect of our action.
In addition to the objective harm of exploitation, there is the subjective or psychological harm of knowing that one is being treated unfairly. We might try to supplement one of the methods mentioned above with considerations of psychological harm. I will argue that not giving in common public good situations actually produces less of the psychological harm associated with unfair treatment than giving. So consideration of the psychological harm of unfair treatment does not encourage us to give.
It is reasonable to suppose that the psychological harm of exploitation depends, to a large extent, on two properties: the perceptible difference an exploitative act makes to someone and that person knowing that the difference is the result of someone's exploitative action. It is debatable whether free riding in situations where the contributing population is large and the value of the public good is moderate makes any noticeable difference to the lives of the contributors. The difference may be imperceptible. When effects fall at or below the threshold of perception, one should consider the principles of psychophysics and signal detection theory.
Some effects may be "imperceptible" and still increase the probability of a psychological response. My contributing $50 to my public radio station may seem to make an imperceptible difference to the listening pleasure of my fellow listeners. However, it may increase the probability that a fellow listener will take pleasure in what he hears. To measure the psychological harm of unfairness, one ought to consider this increased probability of an effect, as well as the large number of people whose probability of increased pleasure one might affect. The harm of not contributing, measured in this way, is certainly more than no effect at all, which is the estimate one would make if one ignored these near threshold effects. But regard for fairness, on the grounds of its psychological effect, still favors not contributing. One must still compare the psychological harm to others of not contributing with the psychological cost to oneself of contributing. The psychological cost of contributing is above perceptual threshold levels and quite palpable. Give to public radio and one may not be able to afford to buy a new shirt. The same arguments about comparative fairness which apply to objective harms also apply to subjective harms.
Further, we said there were two components to psychological harm: the effect on what one directly experiences (such as the quality of the programming one hears on the radio) and the effect of knowing that others are treating one unfairly. The cognitive consequences of contributing are asymmetric. If one knows that a few others are free riding, then by contributing one dramatically changes one's cognitive state. One goes from believing with great confidence that one is not being exploited to believing with great confidence that one is being exploited. On the other hand, one does not dramatically alter the cognitive states of many others if one free rides. Where there is general knowledge of vague truths about the proportion of free riders to beneficiaries, but considerable privacy with regard to individual actions, free riding will be unlikely to make a difference to the cognitive states of the contributors. By not contributing one does slightly increase the probability that a few other contributors will believe that they are being exploited. Perhaps free riding will make an impression on a few close friends who happen to learn about one's choice. Or the supplier of a public good might interview one for a survey which will be widely published. However, these effects are either limited in scope or minute in the probability of their occurrence.
Hence not contributing will lead to fewer of the psychological harms (experiential or cognitive) often associated with unfairness.
So far I have considered the fairness effects of a single act of contributing or not contributing to a public good. An alternative approach would be to compare the fairness of everyone following a certain principle, such as, "Contribute if you benefit". Under this approach, if everyone following a certain principle leads to the most fair outcome, then each person has an obligation to follow the principle, for example, to contribute if she benefits. Let us call such an approach "fairness maximizing rule consequentialism".
Note that using this method for evaluating rules or principles does not necessarily lead to rules that ignore levels of compliance. The rule just mentioned above ignores compliance, but the rule, "Contribute, unless someone else is not contributing" considers compliance. If everyone follows the latter rule, then either all will contribute or all will not. The result is fair. In fact, there are bound to be many principles which satisfy the meta-requirement of fairness maximizing rule consequentialism, since many principles lead to unanimous cooperation or unanimous defection if followed by all. Some of these principles will also contain prescriptions about what to do in situations of partial compliance. But containing such clauses does not impair their success in populations of people who all follow the rule.
Since many principles will tie for the award of leading to the most fair outcome, perhaps the fairness maximizing rule consequentialist will want to add a further condition. One possibility is to require that the scheme have a realistic chance of success. But there are probably many such schemes, some of which require us to contribute different amounts. We cannot logically adhere to them all. Another possibility is to require that following the scheme result in a fair outcome, when there is only partial compliance. But now we have a method of evaluation that is nearly indistinguishable from fairness maximizing act consequentialism, the sort of view we were considering earlier, where the rule evaluates an act based on the fairness of a single person performing the act.
Finally, it is worth pointing out that people do not have duty to achieve many attractive goals. Some ideals, such as beauty or wisdom, are worth pursuing, but no one is required to pursue them. If one views fairness as a goal, even as something to be maximized, one may still regard the promotion of fairness as a worthwhile option one has no duty to perform. Hence, even in those favorable circumstances in which most people are cooperating in the voluntary provision of a public good, one may have a reason for acting fairly without having a duty to do so. This is not to say that we are only interested in arguments which justify a duty to contribute, but only that this distinction is worth bearing in mind.
I conclude that except for situations in which the majority of beneficiaries contribute, we have failed to find any justification for contributing on the basis of the desire to maximize fairness.
Fairness as a Constraint
What if we consider fairness as a constraint on permissible action? Our duty is not to maximize the amount of fairness a pattern exhibits, but to obey certain key constraints. A principle of fairness serves as one of these constraints on what one may do. One may not treat others unfairly, even if it prevents greater unfairness, even if one is thereby treated even more unfairly. This is a forceful, but not ultimately persuasive, objection.
Such a position can take one of two forms, depending on whether the constraint is absolute or just strong. The standard interpretation of deontological theories takes them to constrain permissible action absolutely. Never treat another person unfairly, no matter what. But the defenders of absolute deontological moral theories admit two important exceptions. A person may act in apparent violation of the prohibition when the context is especially grave or especially trivial. In catastrophic circumstances, say, when only a lie can save a country from subjugation by a ruthless enemy, the duty to observe absolute moral constraints simply does not apply. The defenders of absolute constraints suggest that in these circumstances standard morality is held in abeyance. On the other hand, there are de minimis circumstances in which the violation of the constraint is too trivial to constitute a real violation. Morality does not concern itself with such trivial questions, according to this account.
The second exception, the one more commonly ignored, is central to our topic. If the deontological absolutist accounts for de minimis exceptions in the suggested way, then she will have no grounds for admonishing the free rider. For it is another tenet of the deontological position to respect the "separateness of persons". The deontologist asks us to consider how an action impinges on the rights or claims of each individual separately. With respect to public goods serving large populations, she must admit that the unfairness a free rider imposes on each contributor, individually, is minute and trivial. So the free rider's action must be too inconsequential to be worthy of moral consideration and too minor to be prohibited. Hence, interpreting the fairness argument as an absolute constraint turns out to be quite disappointing.
Not all constraints, however, need be absolute. We can see how this is possible if we distinguish agent-relative theories from a very encompassing value-based framework. Perhaps deontologists really wish to recommend certain agent-relative values. Deontologists recommend that each person be an agent who acts fairly, which is different from promoting fairness. Since this is just another value (although an agent-relative one), the recommendation need not be absolute. Promoting fairness might count as well. So a moral theory might give more weight to being an agent who acts fairly than to bringing about fair actions.
Suppose by acting fairly I miss an opportunity to prevent others from acting unfairly and so make the world a bit more unfair. A weighted agent-relative theory (with the right weights) would recommend acting fairly in these circumstances, although this would make the world a bit more unfair. The weight given to being fair (as opposed to promoting fairness) need not be infinite, however. If I can prevent many grave and disturbing unfair acts, only by performing a minor and barely significant unfair act myself, then a balanced moral theory that generally recommends acting fairly will still correctly recommend performing this minor unfair action. Such a theory gives greater weight to acting fairly, but not infinite weight. In fact, we can view an absolute requirement to act fairly as a special case of a weighted theory: it attaches lexical priority or infinite weight to the agent acting fairly. With more moderate deontological theories, the attached weight is less extreme.
Such a view of the duty to treat others fairly is reasonable, but does free-riding really involve treating others unfairly? First, there is still a de minimis problem. The unfairness perpetrated against each individual contributor seems too small and petty to acknowledge. Assuming this difficulty can be surmounted, there is a second objection. Are the free-riders imposing an unfairness on the contributors or are the contributors imposing it on themselves? By enjoying a public good without contributing, a free-rider is not treating the contributors unfairly, but rather, allowing the contributors to suffer their unfair treatment without additional relief. In fact, it is probably improper to even speak of unfair "treatment", since the free-riders reject that the contributors are being treated in any particular way by anyone. If they suffer a disadvantage, an unfairness perhaps, it is one that is self-imposed.
We may illustrate this point with an example in which the value of the public good is much greater than usual and the sacrifice on the part of the contributors is of heroic proportions. Consider the situation of an oppressed African American living in the south in the 1950's. He knows some people will attend a civil rights demonstration in his town and that the police and white bigots will try to suppress the demonstration, possibly injuring or killing some of the demonstrators. He also knows that the larger the crowd, the more successful the demonstration will be, the more it will improve the conditions of his life, and the less likely it will be for any person in the crowd to be injured or murdered. The expected rewards of demonstrating, let us suppose, are worth the risks, but the risks are grave. In this instance it seems he is not required to join the demonstrators, nor is he treating the demonstrators unfairly if he benefits from their actions without sharing their burden.
What difference does it make whether the sacrifice of a contributor to a public good is moderate or heroic? In either instance, the free-rider may argue that whatever unfairness exists it is self-imposed and not an unfairness to which the free-rider subjects the contributor.
If we return to our three interpretations of fairness, this point is confirmed. If fairness is a matter of balancing benefits and burdens, it matters whether the burdens which make the benefits possible are self-imposed or externally imposed. Otherwise, gift giving without reciprocity would be an instance of the recipient treating the giver unfairly.
If fairness is satisfying claims proportionally, it matters what duties are owed what persons. A claim to a good is a duty owed to a person which says the person should have the good. With respect to public goods, the relevant good may be either enjoying a benefit without making a sacrifice (as I suggested earlier in this chapter) or enjoying a benefit without others free-riding. The free-rider has no greater claim to the former good than does the contributor. This would suggest that the free-rider should contribute to avoid disproportionally satisfying an equal claim. But the free-rider may argue that while she has no greater claim to this good (benefiting, but not paying) than the contributor, this is because she has no claim at all. No one has such a claim. Likewise, the contributor does not have any claim to the good of enjoying the benefits of what she helps produce without any free-riders. Both types of goods (benefiting and not paying, paying without benefiting those who don't pay) are produced and consumed without engendering these restrictive claims. To suggest otherwise would be question begging.
Finally, if fairness is not exploiting the vulnerable, even without coercion, it matters whether the free-riders are as vulnerable as the contributors before the decision to contribute (or not). If contributors make themselves vulnerable through their free actions, while the free-riders choose not to, then the free-riders have no obligation to suffer the fate of the vulnerable contributors.
Under all of these interpretations, the free-rider may claim not that he imposes an unfairness on the contributors, but that he is simply avoiding imposing a similar unfairness on himself. Further, he avoids the inefficiency and waste that would result if he were to not only refrain from contributing to a public good, but also refrain from enjoying it.
Hence, I conclude that we cannot justify voluntary provision to a public good by appealing to considerations of fairness, except in those special circumstances in which a majority of beneficiaries are cooperating, and then only if we make certain assumptions about how best to measure unfairness.
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