II. Following the increment principle, one should give the good to I if and only if (Y'I - YI ) > (Y'11 - Y11) . The former corresponds to the view that we should give priority to the worst-off, the latter to the idea that we should prefer those who can use the good best.5
Consider first the case of welfare or utility. For the sake of argument I shall make a number of questionable assumptions: utility allows for full (unit and level) comparison across individuals; the utility functions of different individuals are roughly similar; marginal utility is (decreasing. Under these assumptions, the level and increment principles always dictate the same solution. The worst off should receive the scarce good because they can use it more efficiently, i.e. derive a larger utility increment from it. Something like this idea underlies the traditional utilitarian argument for the redistributive welfare state.6
Consider next the increase of knowledge by educational resources. Williams does not say that the proper ground of distribution of education is lack of knowledge, nor that the proper ground is the assimilation of knowledge. Both ideas, however, are an important part of the educational philosophy. In this case, however, it is less clear that they point in the same direction. It might he the case - this was actually argued by Leibniz7 - that, even if individuals have identical intellectual capacities, the efficient assimilation of knowledge requires that educational resources be concentrated in a few (perhaps randomly selected) individuals, rather than spread thinly over many.
Consider finally the rehabilitation of prisoners. Here, again, the two principles might diverge, albeit for a different reason. Some of those who leave prison will have a spontaneous recidivism rate very close to 100 percent. At the other extreme are those who are certain
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to get and keep a regular job. The intermediate category is made up of those who may or may not manage to stay out trouble without any assistance. Clearly, the rehabilitation officer should not spend his time on those who will do well without his assistance, although doing so would make for an easier life. Nor, more controversially, should he concentrate on those in the first category. Enhardened criminals are unlikely to be swayed by efforts to keep them away from crime. Instead, the officer should concentrate on the intermediate category, where his work could actually make a difference.
In the allocation of medical resources the two principles sometimes coincide. Let us consider organ transplantation, and make the unrealistic assumption that we are comparing cases in which the graft is certain to succeed. We might then have two reasons for giving the organ to a young mart rather than to an old man: the young man has a shorter life behind him and he will, if treated, have a longer life before him. In a different set of choice situations, however, the level and increment principles point in opposite directions. When the candidates for transplantation differ in probability of spontaneous remission rather than in age, the dilemma is more similar to that facing the prison rehabilitation officer.8 The relationship looks roughly as in Figure 1.1.
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In these eases, the level principle will tell doctors to give priority to patients at A, whereas the increment principle tells them to prefer patients at B. (If, above all, they want a good record or a quiet life, they will prefer patients at C.) I understand Williams to be espousing the level principle, at least by implication. Many doctors do the same, because their professional training emphasizes norms of compassion and of thoroughness. Now, an unrestricted version of that principle is obviously indefensible. It would amount to giving priority to patients who are so ill that they are sure to die in any case. On grounds of fairness, one might, nevertheless, argue that even the severely ill should have some chance of being selected for transplantation. I return to that issue later. Here I simply want to note that Williams' unqualified emphasis on "ill health" is misplaced. Some account must be taken of the extent to which that ill health can he improved by medical care.
I am quite confident that Williams would agree. On a more charitable, if less literal, reading of his statement, the notion of ill health would include some degree of improvability. Let me, therefore, see whether the statement, thus interpreted, is more defensible. I believe it runs into at least three difficulties, which can be briefly summarized as incentive problems, paternalism, and envy.9
Sometimes, ill health is the predictable outcome of earlier behaviour. In such cases, one might want to limit the extent of free treatment provided. Such restrictions could be justified by backward-looking arguments, in terms of merit. They could also, and more convincingly, be justified on rule-utilitarian grounds. If people knew that society will not bail them out when their health fails as the predictable result of their own behaviour, they might abstain from behaving in that way. Or again, they might not. Not everybody is equally open to incentive arguments. More to the point, those who might be reached by such arguments are mainly the well educated and affluent.
At this point, we can draw on what Williams has to say about merit as a ground of access to educational resources. If access to merit is shaped in part by a "curable environment," the basic equality of persons demand that this access be itself equalized to that extent. Similarly, if medical need justifies treatment only if that need is not knowingly self-inflicted, one might impose the additional condition that the ability to be swayed by incentive arguments be itself equalized, to the extent that it can be affected by a curable
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environment. Before gross poverty has been eliminated, incentive arguments are inacceptable in health care. This seems right. Some might want to go further, and argue that incentive-effect arguments are never appropriate in this area. There will always be some persons, in all classes of education and income, who are too reckless or thoughtless to take proper account of the risks they are running. After all, most of the predictions one can make in this are statistical ones, which do not reach people as directly as do unqualified warnings. It would be callous to leave a car accident victim to die just because he has thoughtlessly failed to use a safety belt and to take out private insurance. This seems right too, but only because the example is so dramatic. Dental care provides a more instructive example. This treatment is reimbursed by social security in the UK and France, but not in Norway. The Norwegian practice might be justified on the grounds that most people will take care of their teeth when they know they will have to pay the dentist's bill themselves, and that it is more acceptable to say "you have made your bed, so you can lie in it" to those who do not, when the discomforts of the bed are minor and the costs of repairing it small. It goes against Williams' "necessary truth" if rich people who neglect their teeth get better dental care than other negligent people, but could not that inconsistency count against his assertion, rather than against the practice?10
Secondly, one might object that Williams' "necessary truth" is a form of disguised, and possibly misguided, paternalism To be sure, once an individual needs a kidney, heart, or liver transplantation, he would want to have one. He would not say "I'd rather take the money," since without the operation he would not be around to enjoy the money. It suffices to impose a thin veil of ignorance, however, to make it plausible that he might prefer the money. For "the poor lack a great many goods. Perhaps they would prefer to have some of their other needs met with the money that could be set aside for organ transplants."11 This looks like a knock-down argument, and perhaps it is. Let me try to show, nevertheless, how it could be met, somewhat (if I have understood him right) in the spirit of Williams' own argument.
One can imagine two sorts of replies to the objection. First, one might say that paternalism is justified under circumstances in which some people are so poor that they are tempted, against their real interest, to trade off their long-term health against immediate
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betterment. Their capacity for making autonomous decisions is so impaired by poverty that they have to be protected against themselves. Secondly, one might argue that in capitalist countries the only redistributive policies that work are in-kind guarantees like free access to education or medical goods, because cash transfers, even when intended to benefit the poor, are largely captured by the middle-class. 12 In short, they would not get their share of the money set aside for transplants; and if they did, they would use it unwisely..
These rebuttals are powerful, but insufficient. Empirical claims like this cannot be part of the argument for a necessary truth. Also, the claims themselves arc far from being obviously true. A decision to forego costly insurance against a highly improbable event need not he irrationally myopic. A system of largely compulsory health insurance might include some optional features that could be traded in for cash.13 Transplantation could probably not be one of these features. Anticipation of the public outcry when non-insurers are turned away from transplantation centers would prevent any such scheme from getting off the ground.14 But perhaps I could be allowed to forego my right to be operated for varicose veins and take the cash equivalent instead?
The third objection is that Williams' principle might partly be based on envy. In the provision of expensive life-saving health care, there is an "all or none" tendency, and a corresponding aversion to selective provision. If it is technically feasible to give the treatment to all who need it, one should do so; if not, no one should get it.15 In both cases, equality of medical care is realized. The American end-stage renal disease program is an example of the former. Eventually, dialysis was made freely available to virtually everybody who was medical indicted for it. The recent Oregon moratorium on heart arid liver transplantations is an example of the latter.16 A partially similar policy was followed in Massachusetts,17 where transplantations were allowed only within very tight budgetary constraints. The following comment on the report of the Massachusetts Task Force on Organ Transplantation should provide food for thought for those who still believe in the "necessary truth":
Suppose we then assume that there is no intrinsic merit to a fixed medical or hospital care budget. Suppose we also assume, as the Report itself suggests, that with feasible arrangements the supply of organs for trans-
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plantation will be adequate for all who desire transplants. Suppose that heart and liver transplant have passed the research stage, and are known to he effective, if expensive, ways of extending life, and that accurate information concerning the transplants is transmitted to patients and insurers. Finally, suppose that a financing method is developed in which someone who receives a transplant is charged the full resource costs of ''producing'' that transplant. The purchaser, in effect, causes no additional costs to be imposed on anyone except his household if he obtains a transplant. There could he insurance coverage of such expenses, but the premiums would apply only to those who had specifically elected transplant coverage; there would be no general spillover onto other insureds, either for transplant surgery, or for the follow-up care. My understanding of the Task Force's recommendations is that they would prohibit a person who lives in Massachusetts from buying a transplant under such circumstances. In effect, the Task Force finds objectionable a family's decision that it is willing to sacrifice other things it might consume in order to prolong the life of one of its members.
What can be said in favor of this sort of distribution? In a society shot through with envy, such a view might make sense, but the Task Force offered no empirical evidence for such envy (or, for that matter, for its assertions about citizens' belief about fairness). Its the absence of such evidence, I have serious difficulties about raising envy as a moral principle equal to altruism. In any case, envy would call for at most an excise (sumptuary) tax on purchased transplants, not a total prohibition.18
The second and third objections to Williams' argument may be combined as follows. Suppose that we are dealing with a scarce indivisible medical good in totally inelastic supply. The poor ill and the rich ill have the same chance of being drawn from the waiting list. Why should not a poor person be allowed - prior to the development of any illness - to sell his right to be placed on the waiting-list to a rich person, so that the latter would, in effect, have two tickets in the lottery? One might even impose the condition that the rich purchase the extra ticket or tickets prior to his development of the illness, so as to reduce the risk that he might rise his wealth to coerce others to give up their rights. In Nozick's phrase, this is a capitalistic act between consenting adults that imposes no harm on third parties. In forbidding it, we express paternalism towards the poor or envy towards the rich, or both. We may deplore inequalities of income. We may wish for a society in which there were no millionaires who could buy transplantations when the number of publicly financed operations was exhausted, and no poor who might prefer, however autonomously, the cash
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equivalent of some of their medical rights. Note, however, that the purchase and sale of medical options might also occur, if allowed, in a society of complete equality of income, as long as preferences differ. It is not just the poor who might prefer the cash equivalent of the right to be put on the waiting list for transplantation; a less than average degree of risk aversion might have the same effect. Others might be so risk-averse as to buy expensive assurance for very improbable events. In that case, would not "equality of persons" enjoin us to respect the desire to opt out of or buy into the medical system? Totally reckless behaviour, like extreme myopia, is a sign of irrationality. When we find it, as we often do in young children, it provides sufficient grounds for paternalism. Extreme risk-aversion can be assimilated to a phobia, which is also a sign of irrationality. Less extreme attitudes towards risk may, however, he part of the quiddity of individual character that, in other writings, Williams has urged us to respect. How can one respect a person if one treats his central character traits as grounds for protecting him against himself?
I am not quite sure where this medley of arguments leads me. One conclusion - or is it a premise? - is the following. Unlike Williams and Walzer, I do not believe in the inherent autonomy of spheres of justice. There are no necessary truths that regulate the distribution of sphere-specific goods, like medical care or exemption from military service.19 Unlike Walzer (and Williams?), I do believe that the distribution of income should be much more equal than it is in most Western societies today. For one thing, equality of income is a good thing in itself, as long as it does not interfere too much with efficiency. For another, income inequalities detract from the autonomy of choices, in two ways. If I am poor, I may not be able to recognize where my interest lies. And, even if I do, the rich may use their wealth to coerce me to act against it. Under these imperfect circumstances, the insistence on the autonomy of spheres may be justified, not as a first-best principle, but as a way of coping with weakness of will or understanding and with coercive power. Under a more equal distribution of income, the autonomy of spheres would be less important. It might, in fact, become a pointless obstacle to the free choice of life style and priorities.
I now turn to a different set of issues. I said earlier that, in Williams' view, the principle of the equality of persons might conflict doubly with the meritocratic allocation of education. The first
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conflict arises because "one is not really offering equality of opportunity to Smith and Jones if one contents oneself with applying the same criteria to Smith and Jones at, say, the age of 11; what one is doing there is to apply the same criteria to Smith as affected by favourable conditions and to Jones as affected by unfavourable but curable conditions." 20 Equality of persons as they are in themselves, in abstraction from the environment then demands that the curable environment be cured.
Assume that the cure has been effected, so that talents are allowed to develop unfettered by unfavorable environments. Williams argues21 that in this truly meritocratic world, people would be "overconcerned with success" and place far too much emphasis on abilities. The values of the community and mutual respect would wither. The ideal of eqality of persons would be undermined, as a result of reforms motivated by that very principle. I agree with Williams that this is a possible and undesirable side effect of otherwise desirable reforms. Let me also assume, for the sake of argument, that the side effect could outweigh the main intended effects. What, then, are the alternatives?
One answer might be that the present system is, all things considered, superior to the meritocratic nightmare. Because everybody knows that talent is often fettered by circumstances, less blame is attached to low achievements than if it was known that achievement and ability were perfectly correlated. Losers in the rat race can retain their self-respect and the respect of others as long as there is sufficient uncertainty about the relative importance of social and genetic causes of success and failure. If social causes were to be eliminated, so would the salutary uncertainty. Better let things be as they are.
I cannot believe that Williams would accept this proposal. It smacks too much of Evelyn Waugh. But it is not at all clear what he would say. In his concluding paragraph, he essentially throws up his hands to confess ignorance and advocate ad-hoc pragmatism. I shall attempt to carry the discussion somewhat further by discussing a proposal due to John Broome22 and already implemented, unbeknownst to him, in the Dutch educational system.
The issue before us is this. On the one hand, many of us share with Williams the belief that the equality of persons is an important, if vague, principle. On grounds of common humanity, people have a right to equal concern and respect. We would like, moreover, this
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principle to have implications for actual policy-making in allocative arenas. On the other hand, most of us also share his belief that there are differential grounds for admitting people to higher education, in terms of "the economic needs of society for certain skills." The more talented, presumably, are to be given priority by virtue of those needs. A similar point could be made with respect to the allocation of scarce medical resources. There are prima-facie grounds for preferential treatment of those who can benefit most from the scarce good.23
The Dutch solution is to admit students to medical school by a scheme of weighted lotteries, high school grades being used as the weights.24 Broome would generalize the principle. He stipulates that one can usually ascertain the strength of a person's claim to the scarce good in question. A person with high grades has a stronger claim to being admitted to medical school than a person with lower grades. The claim of the latter, however, is weaker rather than non-existent. Similarly, the claim of an old person to receive an organ for transplantation is weak, but not non-existent. Broome argues, therefore, that the appropriate compromise between the general equality of persons and specific grounds for preferential treatment is to have a weighted lottery, with the strength of the claims being used as the weights.
The proposal is attractive, if controversial.25 Let its try to see how it might work in the case of allocating organs for transplantation.26 It seems clear to me that the grounds for preferential treatment are expected probability of success of the transplantation multiplied by expected lifetime after a successful transplantation.27 Against the category of patients who best satisfy this criterion, there are two groups of patients who might press their claims. On the one hand there are those - notably the old - who can he expected (let us assume) to survive the operation as well as any other patient, but who are likely to die soon of other causes. On the other hand, there are the urgent cases who (let us assume) would live as long as any other patient if the operation succeeds, but for whom the very urgency of the illness makes success less likely. How do we measure the strength of the claims of these two patient categories?
For the first category, we would probably measure the strength of the claim by expected life extension. For the second category, we might measure it by expected increment in likelihood of survival.
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This, however, makes for a problem. If, on these grounds we allow transplantations of some patients at A in Figure 1.1, we would also have to allow some patents at C to get a ticket in the lottery. But this seems counter-intuitive. Fairness and compassion both suggest that the very ill get a chance, although it involves a near-certain waste of resources. But, in a situation of extreme scarcity, it is hard to see why' people who already have a good prognosis should get a chance to improve it. Nor do I see any non-ad-hoc way out of the dilemma that would allow us to acknowledge the claims of patients at A without also recognizing those of patients at C.
Regardless of this and other problems of implementation,28 I suspect that Williams might not want to go this way either. In a scheme of weighted lotteries he would hear "the rattle of machinery." It would represent a concern for the abstract human being, not for specific individuals. But I might be wrong here, mistakenly reading Williams through the lenses of the communitarian writers whom he has influenced and with whom he shares at least some enemies. Be this as it may, I do not think viable compromises between the equality of persons and grounds-based differential treatment can be reached otherwise than by some scheme of this general sort. For some purposes, weighted lotteries might serve; for other purposes different compromises might have to be found. This might seem to be fairly close to what I called Williams' "ad hoc pragmatism," and I suppose it is. The difference, if there is any, might lie in my greater willingness to accept mechanical schemes, and my emphasis on the virtues of publicity and predictability embodied in such schemes.
1 In the following I quote from the reprint in Problems of the Self, Cambridge University Press, 1973.
2 I also believe we must go beyond laboratory studies of perceptions of justice. The otherwise invaluable work by M. Yaari and M. Bar-Hillel (see notably their "On dividing justly," Social Choice and Welfare, I , 1-25) cannot provide a full empirical foundation for a theory of justice.
3 This is not the place to make this argument in greater detail; nor am I certain that, if challenged, I could make a strong and coherent case. My views on the matter are linked to work in progress on "local justice. For a rough overview, see my "local justice and interpersonal com-
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parisons," in J. Elster and J. Roemer (eds.), Interpersonal Comparisons of Well-Being, Cambridge University Press, 1991, pp. 98-126.
4 Bernard Williams, "The idea of equality," p. 240. Among those who have taken their lead from this statement one may notably cite M. Walzer, Spheres of Justice, New York: Basic Books, 1983.
5 This resembles the familiar distinction between maximin justice and utilitarianism, but the two distinctions also differ in many ways, as is easily seen.
6 In that argument the two principles do not coincide fully, even under the stated assumptions, since one must take account of the possibility of a negative impact of distribution on the distribuendum. Throughout this chapter, however, I assume that the total to be distributed is unaffected by the way it is distributed. Even in the case of organ transplantation, this need not be true. The argument has been made, for instance, that if organs are allocated to non-resident aliens, citizens might be less willing to donate organs for transplantation. These are, I believe, at most second-decimal phenomena.
7 "Si la pluralité des personnes à aider fait obstacle, il faut choisir celui dont résultera au total le plus grand bien; ainsi donc, en cas de compétition, toutes choses égales d'ailleurs, Ic meilleur, c'est-à-dire le mieux disposé pour le bien public. En effet ce qu'on lui apportera sera multiplié en étant repercuté sur beaucoup et de la sorte en l'aidant, on aidera plusieurs. Et même en général, toutes choses égales d'ailleurs, il faut choisir celui qui a déjà situation la meilleure. On montrera en effet que l'aide procède non pas comme une addition, mais comme une multiplication ... Aider, c'est multiplier et nuire diviser; la raison en est que celui qui est aidé est un esprit; or un esprit peut par sa démarche appliquer tout à tout, ce qui revient à faire un produit ou à multiplier. Prends quelqu'un dont la sagesse soit égale à 3, le pouvoir à 4, la valeur totale de cet homme-là sera égale à 12, et non à 7; en effet il peut user de la sagesse à n'importe quel degré de puissance. Et bien plus, dans le cas d'objets de même nature, celui qui posséde cent mille pièces d'or est plus riche que ne le sont cent personnes dont chacune possède mille pièces. En effet, l'union fait l'utilité: lui, il gagnera même en ne faisant rien, les autres perdront même en travaillant." (Leibniz, Philosophische Schriften, ed. C. I. Gerhardt, I, p. 74. Italics added.)
8 Support for the following statements is found in J. A. Robertson, "Supply and distribution of hearts for transplantation: legal, ethical, and policy issues," Circulation, 75 (1987), 77-87 and in a number of places in D. Mathieu (ed.), Organ Substitution Technology, Boulder and London: Westview Press, 1988, for example, pp. 44-5, 91-2, 98-9, 278-9. Many of these statements compare patients who have had an earlier graft rejected or are on an artificial heart with other categories of patients. The former have a more urgent need for transplantation, but also higher rates of failure.
9 There are other difficulties as well. Williams would have to exclude the
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number of family dependents as grounds for giving a scarce organ to one candidate rather than to another. I cannot see why this could not sometimes be a valid consideration.
10 As mentioned in note 8, patients often get several transplans. In itself, this may not be objectionable, even though the organs used in the later grafts could have been more effective if given to others. But what shall we say if the need for the later transplants is createn by the patient's resumption of the eating, drinking, or smoking habits that brought about the need for the first one?
11 Editorial comment in D. Mathieu (ed. ) , Organ Substitution, p. 146.
12 B. Page, Who gets What from Governmnet? Berkeley and Los Angeles: University of California Press, 1983.
13 Two issues are involved here: levels of' income and equality of income. We must imagine a society in which the minimal income is high enough to ensure that no one needs to be protected against their own irrational myopia, while thr income distribution is sufficiently unequal to ensure that some people might take the cash option because, at their level of income, they would rather spend the money on other things. The Scandinavian societies, in my opinion, approach this state of affairs.
14 Note, however, that this outcry could work against the ex ante interests of the group on belialfof which it is made.
15 This is apparently a central principle in Jewish ethics. See F. Rosner, Modern Medicine and Jewish Ethics, New York: Yeshiva University Press, 1986, pp.347-8.
16 H. Gilbert and E. B. Larson, "Dealing with limited resources: The Oregon decision to curtail funding for organ transplantation," New England Journal of Medicine (July 21, 1988), 171-3.
17 C. M. Havigurst and N. M. King, "Liver transplantation in Massachusetts: Public policymaking as a morality play," Indiana Law Review, 19 (1986), 955-87.
18 M. V. Pauly, "Equity and costs," in D. Mathieu (ed.), Organ Substitution, pp.172-3.
19 I enjoin the reader to go through the following thought experiment. Suppose that the good society has been reached. There is full equality of income. There are no wars, and no need for military service. There is, however, a need for "national service" to cope with frequently recurring natural disasters. A small number of young men are chosen each year by lot for this vital but risky task. Should one allow substitution, so that a man selected by lot could pay another to take his place? Should one allow commutation, so that he could go free by paying a fee to the state, set at a level sufficient to induce volunteers? If not, why not?
20 Williams, "The idea of equality," pp.245-6.
21 At least, I believe the following represents his views on the subject. What he actually says refers to a science-fiction example so removed from the real world that it is hard to know what to infer from it.
22 John Broome, "Fairness and the random distribution of goods"
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(unpublished manuscript 1987).
23 Unlike the reasons given for giving the talented preferential access to higher education, this argument does not rely on the economic benefits which the recipients of medical treatment will be able to provide for other people. People who have received transplants are, by and large, unable to do much productive work.
24 For a description of the system, see W. K. B. Hofstee, "The case for compromise in educational selection and grading,'' in S. B. Anderson and J. S. Helmick (eds.), On Educational Testing, San Francisco: Jossey Bass, pp 109-27
25 For some inconclusive comments, see my Solomonic Judgements, Cambridge University Press, 1989, pp. 114-15.
26 For one version of this idea, see D. Brock, "Ethical issues in recipient selection for organ transplantations" in D. Mathieu (ed.), Organ Substitution, pp. 86-90, at p. 97. His proposal is rather coarse-grained, as it does not distinguish between the two reasons why people might not benefit from an organ transplantation: low, probability of success of the operation and low expected lifetime following a successful operation.
27 For reasons briefly stated in my "Local justice and interpersonal comparisons," I do not think one should measure the life extension in "quality-adjusted life years."
28 Among the other problems, consider claims based on family dependents (note 8 above). If these are admitted, how should they be integrated with other claims into one overall claim?
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[Elster, Jon (1995), The idea of equality revisited, Chapter I in J. Altham and R. Harrison, eds., World, Mind, and Ethics: a Festschrift for Bernard Williams, Cambridge University Press, pp. 4-18]
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