Justice and Fairness – Part Two

Justice as Respect for Rights
Justice as Fairness is not the only game in town. There are other ways to view distributive justice; there are other answers to the question as to who gets what. I now review some alternative approaches to justice. Before we can proceed, I feel obliged, because of contemporary problems with terminology, to discuss and define what constitutes for my purposes the concept of “rights”. In popular discourse, there are two generally accepted interpretations of a right: one is a concept that defines a domain within which persons ought to be at liberty or free to do as they please free of interference by others; this is the so-called ‘negative right’ or ‘liberty right’. The rights recognized in the U.S. Constitution’s first ten amendments (Bill of Rights) are of this type–right to free speech, bear arms, etc. The other major interpretation of a right involves the assertion of a “valid” or “justified” claim. The first type is constrained by the need to describe a domain and actions to be protected, while the latter type, I submit, is practically open-ended, allowing for most anything at all to be made into a justified claim, and in fact this is by far the more common type of right discussed by modern philosophers. Such claims also go under the term “positive rights”, “welfare rights”, or with respect to certain government programs, “entitlements”. These latter rights include such things as: the right to an education, the right to a ‘living wage’, the right to unemployment benefits, the right to income security at retirement, etc. Suffice to say, the type of rights that I will be discussing with respect to the Classical Liberal concept of justice focuses primarily, if not exclusively, on liberty rights. One question I feel needs to be answered from the outset is “where do rights come from?” Some assert that rights are granted by government. I reject that notion, and instead assert that explicitly defined rights are simply a recognition of conditions which must exist for human beings to survive and prosper, (or to function in a political context, as with the right to free speech and expression) and, moreover that their recognition is calculated to solve the numerous social problems which can arise when people come into conflict over the use of scarce resources. ( Note that such conflict is characteristic of what I have called the State of Nature.) I reject the notion of government granting rights because it is the antithesis of the recognition concept just elucidated—what the government gives, it can take away just as easily. Granted rights are arbitrary rights, bearing no relationship to human nature. I also reject the notion of granting rights because I believe that, in addition to, and augmented by, the various legal rights implemented in a system of justice, there is an underlying set of natural or background rights upon which both justice and its resulting rule of law rely. Another issue which is fundamental with respect to rights of the type I am discussing is that of conflicting rights. For each right in a set of rights to be valid, it is necessary that it not conflict with some other right in that set. Such a set of rights is said, according to the eminent rights theorist Hillel Steiner, to be compossible. According to Steiner:

The elementary particles of justice are rights…. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same way as architectural precepts must be informed by the properties of the construction materials they orchestrate…. Any justice principle that delivers a set of rights yielding contradictory judgements about the permissibility of a particular action either is unrealizable or ( what comes to the same thing) must be modified to be realizable. Particular applications of such a principle would drive us to say “Leave it to the judge / legislator / heaven to sort this one out.” And they, after all, seem sufficiently busy already.”[1]

What I mean by a conflict between rights is that by respecting one right I am at risk of violating, or actually violate another right. For example, one may claim that has a right to freely express one’s opinion; another may claim that one has a right not to be discriminated against. If the opinion expressed in the first instance involves discriminating against one person or thing as opposed to another, there is clearly a potential for conflict between these alleged rights. I maintain, that, as described above, one of them has got to go, or be severely modified, if they are to be part of a compossible set. I would also like to suggest at this point that all acceptable conceptions of justice should utilize only compossible sets of rights as the basis for legal precepts and the resulting rule of law. Basing justice on respect for rights is first and foremost a practical matter—it is designed to prevent serious and pervasive social problems that arise from human action: whenever human beings act, they are risk of interfering with the actions of other human beings. This is because most problematic actions involve scarce physical resources and their use and disposition. The purpose of justice is to provide principles and rules to allow humans to avoid in advance these social problems, what Randy Barnett calls the problems of knowledge, interest, and power in his comprehensive and rigorous exposition of the classical liberal conception of justice The Structure of Liberty.[2] Barnett summarizes his formulation of this concept as follows:

Justice is respect for rights of individuals and associations. (1) The right of several property[3] specifies a right to acquire, possess, use, and dispose of scarce physical resources—including their own bodies. Resources may be used in any way that does not physically interfere with other persons’ use and enjoyment of their resources. While most property rights are freely alienable, the right to one’s person is inalienable. (2) The right of first possession specifies that property rights to unowned resources are acquired by being first to establish control over them and to stake a claim. (3) The right of freedom of contract specifies that the rightholder’s consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights —both during one’s life, and, by using a “will”, upon one’s death. A manifestation of intent is ordinarily necessary unless one party somehow has access to the other’s subjective intent. (4) Violating these rights by force or fraud is unjust. (5) The right of restitution requires that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice, and such compensation may be collected by force, if necessary. (6) The right of self-defense permits the use of force against those who threaten to violate the rights of another. Normal self-defense is permissible when the commission of a rights violation is imminent. Extended self-defense is permissible when a person has communicated, by prior rights violations or some other prior conduct proven to a high degree of certainty, [to be] a threat to violate rights in the future. Self-defense should be proportionate to the risk posed by the threat.

Clearly, this formulation was intended to address the entire range of justice issues, not just the issue of “distributive” justice which is the focus of the Utilitarian and Rawlsian conceptions; I shall focus on the first three of the rights enumerated above: the right of several property, the right of first possession, and the right of freedom of contract. These comprise what Barnett ( and many other rights theorists) have called a set of ‘natural’ or ‘background’ rights. As I understand it, these fundamental rights are natural because they reflect the nature of both the world and the human beings living in it. Humans are self-interested and legitimately so, and most human interests revolve around some sort of property, so the rules of justice must be derived from principles which specify rights and obligations we have with respect to property. Regarding human nature, the seventeenth century natural rights theorist Samuel Pufendorf had this to say:

[I]n investigating the condition of man we have assigned the first place to self-love, not because one should under all circumstances prefer only himself before all others or measure everything by his own advantage, distinguishing this from the interests of others, and setting forth as his highest goal, but because man is so framed that he thinks of his own advantage before the welfare of others for the reason that it is his nature to think of his own life before the lives of others. [Emphasis added.][4]

The problem of knowledge mentioned above becomes a social problem when individuals (or associations) are (a) not able to utilize their personal and local knowledge of how to use resources, or (b) do not have adequate advance knowledge of what justice requires, or (c) those who are responsible for translating the abstractions inherent in a set of rights into legal precepts and rules do not have sufficient local and/or personal knowledge. The rights in Barnett’s formulation solve the problem of knowledge in (a) by giving jurisdiction over physical resources to those who are in the best position to use their own personal and/or local information; this is in opposition to having all property owned and controlled by a central authority, e.g. the state. These rights also deal with the problem in (b) by forming the basis from which a set of legal precepts and rules can be developed which will tell people in advance what the requirements of justice are. This assumes that most people are interested in adhering to its requirements, if only they can be made explicit— there is, of course, some subset of us who are intent on ignoring any such requirements. The notion of jurisdiction as used here is similar, but not identical to that used with respect to the administration of justice. Here I mean that we recognize the need for individuals (or associations) to have defined domains in which they are free to act on their own personal and/or local knowledge. Another way of saying this is that individuals (or associations) are in the best position to make decisions about resource use. This brings us to the allied concept of an “order of actions”, or the creation of a social order, a regime which brings orderliness to social interaction. Societies can be ordered in either a centralized or decentralized manner; examples of centralized ordering include families, companies, and the military, in which persons at the top are charged with ordering and controlling lower levels of the hierarchy. On the other hand, a decentralized order features an atomistic situation in which decision making occurs at the very lowest level, usually that of the individual. In societies where the order is centralized, attempts are made to control actions with elaborate sets of rules, even though the personal and local knowledge needed to develop the rules is nowhere available to the rule-makers. In societies that respect decentralized jurisdiction over resources, the rules evolve over time in a natural and self-correcting way. Readers familiar with F.A. Hayek will immediately recognize the parallel between a centralized order and a decentralized order and Hayek’s “made” order versus his concept of a “spontaneous” order. The most well-known spontaneous order is the free market economy. The problem of interest is broken down by Barnett into three parts: the problem of partiality, the problem of incentive, and the problem of compliance. As noted above, humans have a natural predilection to act in their own self-interest, which sometimes can lead to conflicts and to unjust actions. The problem of partiality occurs when parties who are empowered to make judgements that affect others favor ( or are “partial” to) their own interests or to those who are close to them at the expense of the others involved. The decentralized jurisdiction concept inherent in the rights of several property, freedom of contract, etc. restricts the harm that partiality can cause to a narrow jurisdiction; centralized orders make mistaken or unjust decisions which can apply to as much of society as its entirety. The problem of incentive occurs when individuals ( or associations ) are required to make choices regarding resources, which choices incur costs to the decider, and cannot be passed on to others. If justice and the rule of law do not provide incentives for incurring these costs, decisions to develop or invest will not be made. The right of first possession, for instance, provides that the costs to develop unowned property will not be in jeopardy from a subsequent claim to the same property by another. Also, according to Barnett, “the principle of freedom from contract helps insure that changes in control of the resource reflect the interests of the original rights-holder. Only if the rights-holder consents to a transfer will it be recognized as valid.” Similarly, the right of freedom to contract “provides positive incentives for beneficial transactions by enforcing agreements motivated by the prospect of receiving a benefit or ’profit’ ”. Additionally, the right of restitution (see item 5 in the formulation of justice), which compels compensation for unjust (i.e. non-consensual) takings (of property) supports the incentives needed to make decisions subject to the costs mentioned above. The problem of compliance is the need to close the gap between the conduct that justice and the rule of law require and what people perceive to be in their interest to do. Some people, especially those with very high time preferences[5], will frequently perceive a gap between their needs and the requirements of justice. When, for either pecuniary or psychological gain, these people act unjustly, we consider them criminals. The existence of items 5 and 6 in Barnett’s formulation of justice provides a means to deal with them. Finally, the problem of power. Since the liberal concept of justice includes the use of force to deal with rights violations, there is a problem of enforcement error—the inevitable cost to the occasional innocent who is the subject of an erroneous enforcement. “Because the use of power imposes costs on the innocent, and rights legitimate the use of power, we need to limit the number and kind of rights we recognize to those which address pervasive social problems that cannot be dealt with by any other means.” The preceding discussion of ideas from The Structure of Liberty does not adequately reflect the rigorous arguments and elegant construction found in that book. Barnett makes a strong case for a conception of justice which involves moral constraints yet is highly practical in that it conforms to human nature with its concept of natural or background rights. One of the most important take-home observations by Barnett is that the validity of the rights in his formulation, especially the property rights found in items 1-3, is greatly reinforced by the fact that they address, and have the potential to prevent, multiple pervasive social problems.

Nozick—Bringing Justice Back Down to Earth

An alternate view of the Liberal Conception of Justice can be gleaned from the award-winning 1974 book , Anarchy, State and Utopia by Harvard philosopher Robert Nozick. It shares some of the same conceptual ground as Barnett, but with a much stronger emphasis on the moral basis for its strongly libertarian point of view. Nozick, like most political theorists, including those mentioned here, deals first with the state of nature issues and endeavors to show how the concept of the state might have evolved from a simpler structure of private protective agencies, whose only charge was to provide protection for the rights of those in the state of nature. The model for the state of nature used by Nozick is from one of the prime originators of natural rights theory, John Locke. Locke’s state of nature is neither the nasty and brutish one of Hobbes or the idyllic one of Rousseau, but rather a place where natural rights are recognized by many, there is reciprocity and co-operation, but there are virtually no institutions for resolving the inevitable conflicts between the various actors, particularly those conflicts arising over the use and control of physical resources. Men are free to act in whatever way their conscience ( or lack thereof ) dictates; the flip side is that they may look to no else to defend themselves against whoever may violate their rights. In a series of steps that resemble the “invisible hand” type of process mentioned earlier, Nozick speculates as to how what he calls the “minimal state” might have evolved from the pure state of nature, with various associations offering to provide protective services to various sets of clients in a given geographical area. Also, Nozick dares to raise the question of whether or not the anarchic situation in the state of nature is not better than the minimal state inasmuch as even this minimal state, due to its monopoly on the use of force and its mission to provide universal protective services for its citizens, might be construed by some ( e.g. individualist anarchists[6]) as redistributive, in that some will wind up paying more than others for the same level of protection. In answer, Nozick shows how what might look redistributive is actually devoid of such moral objections (Yes, Virginia, there really are some people who object to redistribution on moral grounds!!) . Based on a prior discussion of the need to compensate those whose rights are violated, Nozick has constructed an elegant explanation of how, in a state of nature, independent actors who did not choose to sign up with the dominant protective agency could, instead of being accused of “free riding”, are actually the subjects of just compensation:

If the protective agency deems the independents’ procedures for enforcing their own rights insufficiently reliable or fair when applied to its clients, it will prohibit the independents from such self-help enforcement. The grounds for this prohibition are that self-help enforcement imposes risks of danger on its clients. Since the prohibition makes it impossible for the independents credibly to threaten to punish clients who violate their rights, it makes them unable to protect themselves form harm and seriously disadvantages the independents in their daily activities and life. Yet it is perfectly possible that the independents’ activities including self-help enforcement could proceed without anyone’s rights being violated…. According to our principle of compensation…,in these circumstances those persons promulgating and benefiting from the prohibition must compensate those disadvantaged by it. The clients of the protective agency, then, must compensate the independents for the disadvantages imposed upon them by being prohibited self-help enforcement of their own rights against the agency’s clients. Undoubtedly, the least expensive way to compensate the independents would be to supply them with protective services to cover those situations of conflict with the paying customers of the protective agency. This will be less expensive than leaving them unprotected against violations of their rights… and then attempting to pay them afterwards to cover their losses through having (and being in a position in which they were exposed to having) their rights violated.[7]

Whew, that was a mouthful. So, the bottom line of this argument is that the minimal state, in the form of a monopoly protective agency in a region, is not, after all, redistributive, since the provision of universal protective services including the independents ( i.e. those who don’t sign up) is seen in the light of the principle of compensation, not as a free ride. As you have seen, Nozick’s book is not exactly a light read, but it is thought-provoking, especially for those whose only exposure to political philosophy has been to statist-oriented authors. Where Barnett endeavors to create a structure that can be translated into legal precepts and thence to the rule of law, Nozick deals primarily with the aforementioned justification for a compact, virtually single-purpose state, and with the notion of ‘distributive justice’, which others, mostly having a statist orientation, call ‘social justice’, or ‘economic justice’. Nevertheless, the principles espoused by Nozick seem to be clearly related to the property rights in Barnett’s formulation. The three major topics in what Nozick calls his “entitlement theory of justice” are (1) original acquisition of holdings, (2) transfer of holdings, and (3) rectification of justice in holdings. Definitional notes: First, the use of the word entitlement here has absolutely no relation to its use in reference to what we have called ‘welfare rights’; rather it is to put emphasis on principles to justify why one might be entitled to a particular holding. Second, Nozick uses the word ‘holding’ in much the same way as Barnett uses ‘several property’. Nozick’s entitlement theory of justice consists entirely of principles, which would then be elaborated by specific implementations; he makes no pretense to a complete theory. Nozick asserts as follows:

If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.

2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.

3. No one is entitled to a holding except by (repeated) applications of 1 and 2. The complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution.[8]

When we examine the formulation of Barnett, we see essentially the same conceptual framework, but the issues have been dealt with explicitly. For example, the right of first possession is generated from the principle of acquisition of holdings in that it states that the rule for how entitlement is to be recognized uses the concept of “first in time is first in right”. One must identify the property and then stake a claim to it. So persons who do that have a first right of possession over a previously unowned property.[9] We should stop right here and proclaim that the justification given by Barnett saying, in effect, that the criterion for deciding on a claim over unowned property between someone who first found it and staked a claim and someone else who later comes across it is not necessarily the only criterion that could have been used. Alternatively, one could have used the rule that the property should go to the one who needs it the most, or some other rule. There is nothing in the principle of justice in acquisition which would necessarily prevent this from being the case, and the “inductive definition” given above would still be valid. A distribution made according to those rules would be considered just. The problem with many of the possible options is that the rule used may violate moral side constraints about how people may be treated, violate other rights, or create still other unintended consequences. Likewise the Nozickian principle of justice in transfer is implemented in Barnett’s right to freedom of contract, which specifies that all transfers of property (holdings) must be consensual to be valid, i.e. freedom from contract specifies that the right-holder’s consent is necessary to make the transfer, and freedom to contract specifies that consent is sufficient.[10] Moreover, the fundamental right of several ( i.e private) property, “the right to acquire, possess, use and dispose of scarce physical resources—including their own bodies”[11] follows immediately from the set of distributive justice principles developed by Nozick. Additionally, the principle of rectification of injustice in holdings spawns the right of restitution in the Barnett formulation. If the two principles of distributive justice given above are violated with respect to ( the entire history giving rise to) any given holding, then the holding is subject to Nozick’s principle of rectification, or literally, “making it right”. Barnett’s implementation is:

The right of restitution specifies that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice.[12]

Before leaving the discussion based on Anarchy, State and Utopia, we need to discuss one more extremely relevant issue of political philosophy, and that is the notion of moral side constraints. This is the idea that, when considering a theory of justice and the concomitant societal arrangements to be made, any constraints upon actions done to realize one’s goal cannot simply be incorporated by reference into the goal itself. For example, if there is to be a societal arrangement that provides that every person should receive monetary income at such a level as to insure certain existential conditions ( re: food, shelter, health, etc.) are satisfied, subject to the constraint of minimizing violations of certain liberties, e.g. property rights, this would be an example of building the constraint into the goal itself. If, on the other hand, one would propose a societal arrangement such that every person should receive a minimum monetary income as described above, provided only that in doing so, no violation of anyone’s liberties or rights should be allowed at all, that would be an example of a moral side constraint. As Nozick explains:

Side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent.[13] [Emphasis added.]

Additionally, “The moral constraints on what we may do, I claim, reflect the fact of our separate existences . They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good. There is no justified sacrifice of some of us for others. This root idea, namely, that there are different individuals with separate lives and so no one may be sacrificed for others, underlies the existence of moral side constraints, but it also, I believe, leads to a libertarian side constraint that prohibits aggression against another.”[14] In addition to the matter of a lack of attention to side constraints, which I feel is a deal killer for any one who is not a thorough-going Consequentialist[15], Nozick has a multitude of other well-argued objections to the theory as propounded by Rawls ( and which would apply to a whole host of Utilitarian, egalitarian, Marxist, or socialist theories about “social justice” as well). One could classify his objections as follows: (1) Issues relating to a lack of context, to a narrow focus on the subject of distribution; (2) The fact that the distributions which result from Rawlsian principles are of the patterned, or “end-state” or “end-result” type; (3) Questions about Rawls’s attitude toward what he calls the “morally arbitrary” characteristics of individuals which might be used to explain and/or justify the existence of inequalities in distribution; (4) Issues about legitimacy of the holdings of individuals.

Context, or the Lack of It

Arguments in favor of egalitarian types of distributions are frequently, if not exclusively, isolated from any context about how the initial set of conditions ( e.g. goods to be distributed) came to exist. To reiterate an earlier quote from The Notion of Fair Distribution:

Distributive justice is concerned with the fair allocation of resources among members of a community. Fair allocation typically takes into account the total amount of goods to be distributed, the distributing procedure, and the pattern of distribution that results.

It seems that the only problem that exists here is how to make the distributions. It is assumed that they need to be made, and that some unspecified agent will be in charge. Nozick has it right when he says:

Hearing the term “distribution,” most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things. Into this process of distributing shares some error may have crept. So it is an open question, at least, whether we should do again what has already been done once, though poorly. However, we are not in the position of children who have been given portions of pie by someone who now makes last minute adjustments to rectify careless cutting. There is no central distribution, no person or group entitled to control all the resources, jointly deciding how they are to be doled out. What each person gets, he gets from others who give to him in exchange for something, or as a gift. In a free society, diverse persons control different resources and new holdings arise out of the voluntary exchanges and actions of persons. There is no more a distributing or a distribution of shares than there is a distributing of mates in a society in which persons choose whom to marry…[16]

Another failure in the realm of context with respect to this view of distributive justice is that it ignores anything historical about how the holdings of various persons came about. For Rawls and his ilk, these questions are totally irrelevant, and for Nozick they are crucial:

To think that the task of a theory of distributive justice is to fill in the blank in “to each according to his _________  ” is  to be predisposed to search for a pattern, and the separate treatment of “ from each accord to his ________”  treats production and distribution as two separate and independent issues. On an entitlement view these are not two separate questions. Whoever makes something, having bought or contracted for all other held resources used in the process…, is entitled to it. The situation is not one of something’s getting made, and there being an open question of who is to get it. Things come into the world already attached to people having entitlements over them. From the point of view of the historical entitlement conception of justice in holdings, those who start afresh to complete “to each according to his _______” treat objects as if they appeared from nowhere, out of nothing….[17]

I strongly suggest that anyone who treats objects as if they appeared from nowhere, and out of nothing is not thoroughly grounded in reality, and furthermore, that we should not put any stock whatsoever in his arguments, moral or otherwise.

Patterned or End-Result Distributions

The type of distributions which justice as fairness dictates are called patterned distributions. They are calculated by some rule to achieve some particular end-result, i.e. at some particular point in time a certain distribution is to exist, the characteristics of which are defined in advance. For example, absolutely equal shares is a patterned distribution. Distribution of goods based on hours worked up to a specified maximum ( hours or goods) is another.

There are numerous problems, both moral and practical, with the concept of patterned distributions. Allowing for the moment that one may wish to divorce production from distribution, the most fundamental problem with distributions designed to achieve a particular end-result is that the implementation of such distributions inevitably interferes with liberty, which Rawls has supposedly enshrined as his First Principle of justice. Supposing that one receives some distributive share in accordance with some acceptable societal arrangement under justice as fairness. If one then takes one’s share and does any of a number of different things with it other than simply using or consuming it, then this is likely to upset the desired end result. Under a patterned distribution, it is undesirable that people should give away portions of their distributions, or alternatively, save them up, convert them to some form which assists in the production of goods, the private sale of which augments one’s share over time, etc., etc. In order for the pattern to be protected, it becomes necessary to, in essence, outlaw acts of capitalism or even of gift-giving. If such things are allowed, then unless they are “rectified” by a redistribution, then things tend only to get more and more out of shape compared to the originally desired end-result. So, clearly, any kind of reasonable economic liberty must be ruled out in Rawls conception. And, in fact, it is[18].

This brings us to the necessity, in most cases, of constantly re-evaluating and re-making the distributions on an ongoing basis, a policy which, one can easily imagine, undermines any kind of market based economy[19]. An additional problem with end-result principles is that when they are instilled in the legal matrix, they give each citizen an enforceable claim to some portion of what must be construed as the social product, the sum total of goods and services as of some point in time. According to Nozick:

Whether it is done through taxation on wages or on wages over a certain amount, or through seizure of profits, or through there being a big social pot so that it’s not clear what’s coming from where and what’s going where, patterned principles of distributive justice involve appropriating the actions of other persons. Seizing the results of someone’s labor is equivalent to seizing hours from him and directing him to carry on various activities. If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions. This process whereby they take this decision from you makes them a part-owner of you; it gives them a property right in you. Just as having such partial control and power of decision over an animal or inanimate object would be to have a property right in it. End-state and most patterned principles of distributive justice institute (partial) ownership by others of people and their actions and labor. These principles involve a shift from the classical liberals’ notion of self-ownership to a notion of (partial) property rights in other people. Considerations such as these confront end-state and other patterned conceptions of justice with the question of whether the actions necessary to achieve the selected pattern don’t themselves violate moral side constraints. Any view holding that there are moral side constraints on actions, that not all moral considerations can be built into the end states that are to be achieved, must face the possibility that some of its goals are not achievable by any morally permissible means….[20]

The more one reflects on patterning, the more difficulties and improprieties one can think of. The last one I shall focus on is the fact that the conditions of the Original Position virtually dictate that the only type of distributive justice that the bargainers will consider are patterned distributions.

If things fell from heaven like manna, and no one had any special entitlement to any portion of it, and no manna would fall unless all agreed to a particular distribution, and somehow the quantity varied depending on the distribution, then it is plausible to claim that persons placed so that they couldn’t make threats or hold out for specially large shares, would agree to [Rawls’s] difference principle rule of distribution. But is this the appropriate model for thinking about how the things people produce are to be distributed? Why think the same results should obtain for situations where there are differential entitlements as for situations where there are not? A procedure that founds principles of distributive justice on what rational persons who know nothing about themselves or their histories would agree to [the Original Position] guarantees that end-state principles of justice will be taken as fundamental….For people meeting together behind a veil of ignorance to decide who gets what, knowing nothing about any special entitlements people may have, will treat anything to be distributed as manna from heaven.[21]

So the two conceptions of distributive justice cannot be easily reconciled—one allows for historical entitlements, the other is blind to them. Rawls theory presumes that no historical theory, however constructed, can be the correct one.

Moral Arbitrariness

One of the greatest objections that Rawls and his sympathizers express is their antipathy to the individual’s natural assets, talents, and abilities insofar as these are construed to result from factors not under the person’s control, such as initial distribution of income and wealth, family situation, supposedly innate abilities, etc. because they are presumed to be “morally arbitrary”, which I believe is another way of saying “undeserved.” This why Rawls goes on at length about the need for societal institutions that guarantee access to social and political positions, and educational opportunities. On the surface, such concerns may seem worthy, and perhaps even quintessentially fair. Yet this need to nullify the results of a person’s character and ignore his accomplishments while ascribing his success to uncontrollable outside factors is indicative of an attitude that is not congruent with the theory’s supposed end results. By insisting, as Rawls does, that even the more conscientious behavior of the more advantaged individuals is itself morally arbitrary[22] is going one step too far. Nozick observes that “this line of argument can succeed in blocking the introduction of a person’s autonomous choices and actions (and their results) only by attributing everything noteworthy about the person completely to certain sorts of “external” factors. So denigrating a person’s autonomy and prime responsibility for his actions is a risky line to take for a theory that otherwise wishes to buttress the dignity and self-respect of autonomous beings….” One should never forget that final results always involve intermediate steps, and those who have native abilities may either develop them or ignore them. Those who start life with pecuniary advantages may frequently experience poverty at life’s end. Is it reasonable twenty or thirty years downstream to insist that one’s situation at that point in time is all predicated on inherited characteristics? The only reason that this kind of thinking could be tolerated is that no one (specifically the moral theorist) is looking at the individual, only at the aggregate, the collective. In fact, it is Rawls’s position that one’s talents and abilities actually belong to the collective, to wit:

We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out….No one deserves his greater natural capacity nor merits a more favorable starting place in society. But that does not mean one should eliminate these distinctions. There is another way to deal with them. The basic structure [of society] can be arranged so that these contingencies work for the good of the least fortunate.[23] [Emphasis added.]

Having noted the above Rawlsian predilection, one should recall the previous assertion by Nozick that the ability to tax away a significant fraction of your income is tantamount to having a partial property right in you. It seems to me that the common asset idea dovetails nicely with the partial property right notion. Now I can hear some of you saying “How can you attack taxation in such a way? After all, there has to be some way to fund the government.” Let’s look at this in yet another, perhaps deeper, way. Let’s say that you find it legitimate to seize a progressively larger portion of the wages of a person who elects to work more than the minimum required hours so that he can enjoy some extra goods or services because he prefers to have these more than to have some certain number of hours of leisure time. Take then, the case of the man who elects to work only the minimum number of hours at his job because he values his hours of leisure more highly than any extra goods or services. Would it then also be legitimate to force this second man to work some extra hours (equivalent to the extra increment of wages withheld from the first man) without compensation so that the work product may be distributed to others? I maintain that those would say the first case is legitimate and the second is illegitimate are fooling themselves. It should be abundantly clear that these two cases fundamentally equivalent. Yet, I can guarantee you that most advocates of progressive taxation would be up in arms over any suggestion that the second alternative has any legitimacy at all!

Additional remarks on Justice and Fairness are to be found in Part Three

Notes for Part Two


[1]. Hillel Steiner, Essay on Rights.
[2]. Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law, Oxford University Press, 1998.
[3]. The use of the phrase ‘several property’ is similar to the phrase ‘private property’ but is favored by Barnett in that it emphasizes its widespread and decentralized character, as opposed to situations where property is concentrated in the hands of the state.
[4]. Samuel Pufendorf, De Jure Naturae.
[5]. People have varying time horizons as to their value for either current or future consumption. Those with limited horizons (i.e. can’t or won’t see into the future) are said to have high time preferences, and frequently demand immediate gratification; converse-ly, those with low time preferences can see the value of postponing gratification.
[6].Individualist anarchism refers to several traditions of thought within the anarchist movement that emphasize the individual and his/her will over any kinds of external determinants such as groups, society, traditions, and ideological systems. Individualist anarchism is not a single philosophy but refers to a group of individualistic philosophies that sometimes are in conflict. Early influences in individualist anarchism were the thought of William Godwin, Henry David Thoreau (transcendentalism), Josiah Warren (“sovereignty of the individual”), Lysander Spooner (“natural law”), Pierre Joseph Proudhon (mutualism), Herbert Spencer (“law of equal liberty”) and Max Stirner (egoism). From there it expanded through Europe and the United States. Benjamin R. Tucker, a famous 19th century individualist anarchist, held that “if the individual has the right to govern himself, all external government is tyranny.”
[7]. Robert Nozick, Anarchy, State and Utopia, Basic Books, 1974, P.110.
[8]. Ibid. P. 151.
[9]. The reader may be objecting at this point that there is precious little in the way of unowned property to which this right would apply; that might be true if one were thinking only of real property, i.e. land. But in the modern world, there is abundant new property created both as a pure product of the human mind ( e.g. music, art, computer programs, other “intellectual property”), and manufactured items, all of which fits naturally, I suggest, into both the principle of justice in acquisition (from Nozick) and its explicit formulation as the right of first possession (from Barnett). It is worth noting that this is one of the great strengths of the natural rights approach that it addresses potential problems or issues (like new kinds of property) that had not yet arisen when the concepts were first put forward, by Locke et al.
[10]. “In logic, the words necessity and sufficiency refer to the implicational relationships between statements. The assertion that one statement is a necessary and sufficient condition of another means that the former statement is true if and only if the latter is true. A necessary condition of a statement must be satisfied for the statement to be true. Formally, a statement P is a necessary condition of a statement Q if Q implies P. For example, the ability to breathe is necessary to a human’s survival. Likewise, for the whole numbers greater than two, being odd is necessary to being prime, since two is the only whole number that is both even and prime. ‚ A sufficient condition is one that, if satisfied, assures the statement’s truth. Formally, a statement P is a sufficient condition of a statement Q if P implies Q. Thus, jumping is sufficient to leave the ground, since an intrinsic element of the concept jumping is leaving the ground. A number’s being divisible by 4 is sufficient for its being even. A condition can be either necessary or sufficient without being the other. For instance, being a mammal (P) is necessary but not sufficient to being human (Q), and that a number q is rational (P) is sufficient but not necessary to q‘s being a real number (Q). A condition can be both necessary and sufficient. For example, at present, “today is the Fourth of July” is a necessary and sufficient condition for “today is Independence Day in the United States.” Similarly, a necessary and sufficient condition for invertibility of a matrix M is that M have a nonzero determinant.” —-Wikipedia, Internet Free Encyclopedia
[11]. Randy E. Barnett, The Structure of Liberty, P.65.
[12]. Ibid. P. 159. Students of the law will recognize this right as the fundamental basis for tort law.
[13]. Nozick, Anarchy, State and Utopia, P. 31. Nozick is here referring to Kant’s famous categorical imperative which states “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”
[14]. Ibid. P. 33.
[15]. Ibid. P. 149.
[16]. Ibid. P. 159.
[17]. At the risk of going over old ground, we should recall that the First Principle of Justice as stated by Rawls himself is: “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” He also states: “The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.” [Emphasis added.] So, the First Principle, of maximum liberty, which is supposed to take precedence over the distributive mandates of the Second (Difference) Principle clearly does not include a general concept of liberty, namely action without external interference, but a highly qualified “basic” kind of liberty in which only the right to personal property is to be protected—never you mind about your real property, or your productive machinery, or any other kind of “capital asset”, as that cannot be construed as sufficiently “basic.” You can keep your kit bag, however, and everything in it, and society will defend your right to do so. For an extremely germane discussion of the role economic liberty fails to play in Rawls’s theory, please see A Puzzle about Economic Justice in Rawls’s Theory” in Respecting Persons in Theory and Practice by Jan Narveson. Narveson clearly shows that, with respect to reconciling the Difference Principle with the Liberty Principle, (1) “Either it goes the whole hog one way, leaving no socially reinforced tendency toward equality in the distribution of wealth…” ..or (2) “it goes all the way the other way, giving us Christ’s injunction [“…sell all that you have and give it to the poor…”] as a requirement of justice—out and out communism in one understanding of the word.”
[18]. The reason it undermines a free-market economy is that at its heart is the accumulation of capital through having a surplus of production over consumption. Taxing away the profits of an enterprise militates against storing up capital for increased production.
[19]. Ibid. P.172.
[20]. Ibid. P.198.
[21]. Rawls, Theory of Justice, p. 311-12.
[23]. Rawls, Theory of Justice, p. 102.
[24}. Later on we will be discussing at some length various formal theories of “tax justice”; the core idea involved in most such discussions is that of “equal sacrifice”; taxes are to be engineered so that everyone is hurt equally. By this standard, the forced labor example given is, I submit, beyond criticism.

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