Legal Theory Lexicon

This is a collection of the Legal Theory Lexicon posts from Legal Theory Blog. A new entry appears each week on Sunday. The most recent posts appear on this page. To access older posts use the "Table of Contents" below. (Many of the Legal Theory Lexicon posts have benefitted from comments by Ken Simons of the Boston University School of Law.)

Sunday, July 10, 2005

Legal Theory Lexicon 049: Distributive Justice
    Introduction Distributive justice is one of the central topics of political philosophy and plays a key role in contemporary debates about normative legal theory. Should contract law take distributive consequences into account? Should tort law aim at "risk spreading"? Should the Equal Protection Clause of the United States Constitution be read as guarantee of the equal distribution of rights or resources? In order to answer these and similar questions, we need to have some account of distributive justice? What makes the distribution of liberties, income, and wealth fair? Should the law aim at equality? And if it should, what sort of equality?
    This entry in the Legal Theory Lexicon will provide a brief introduction to distributive justice. As always, the Lexicon is aimed at law students (especially first-year law students) with an interest in legal theory.
    Context A prior entry in the Lexicon provided a brief overview of the idea of Justice. (Legal Theory Lexicon 018: Justice) In that entry, we divided the general topic of justice into four parts: (1) distributive justice, (2) corrective justice, (3) political justice, and (4) procedural justice. Corrective justice is concerned with the righting of wrongs: so, in criminal law, we might be concerned with punishing crimes, and in tort law, we could focus on the rectification of wrongfully inflicted harms. Political justice is concerned with issues such as voting rights, democracy, legitimacy, and authority. Procedural justice addresses questions about the fairness of civil and criminal proceedings. Our topic today is distributive justice. As a rough and ready starting point, let's say that distributive justice addresses questions about the distribution or allocation of liberties, wealth, and income. As we shall see, one of the major debates about distributive justice will call this rough and ready starting point into question, because "liberties, wealth, and income" may be the wrong target for theories of distributive justce. But let's put that concern aside for now.
    Rawls's Theory of Distributive Justice: Justice as Fairness Discussions of distributive justice usually start with the work of John Rawls--the most influential political philosopher of the 20th century. It really isn't possible to do justice to Rawls's theory in a paragraph or two, but I'm going to try.
    Let's start with the historical roots of Rawls's theory. Rawls saw his theory as an extension of the social contract tradition--associated with Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Traditional social contract theory posits a state of nature--in which there is no government--and then asks what would be the content of a social contract--an agreement to enter civil society. If we assume that the state of nature and the social contract are hypothetical (not actual), we can then ask the question: is an agreement reached in the state of nature fair? The answer to this question might be, "No, a social contract reached in the state of nature would not be fair, because it would favor those who are advantaged by the conditions of the state of nature, e.g. the strong, the smart, and the powerful." Rawls attempted to correct that problem with classical social contract theory by positing what he called the "original position." In the original position, the parties are to agree on principles of justice to govern the basic structure of society. Unlike the state of nature, however, the original position includes a "veil of ignorance," which prevents the parties from knowing the specific characteristics of those whom they represent.
    Rawls argues that the parties to the original position would choose two principles of distributive justice:
      1. The Equal Liberty Principle: Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value.
      2. The Difference Principle: Social and economic inequalities are to satisfy two conditions: (a) They are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and (b), they are to be to the greatest benefit of the least advantaged members of society.
    The first principle has priority over the second in cases of conflict.
    In this very short introduction, we won't try to recreate the reasoning that would lead the parties to the original position to adopt the two principles. The basic idea of Rawls's argument is that the parties behind the veil of ignorance would have to take into account the possibility that they represent the least fortunate members of society. To protect the interest of those who are worst off, they would first make sure that everyone's basic rights--liberty of conscience, freedom of speech, due process--were protected: that is the role of the equal liberty principle. Then, the parties in the original position would attempt to make sure that wealth and income (and other basic goods) were were distributed so as to make the worst-off members of society as well off as they could be made: that is the role of the difference principle.

    Rival Approaches to Distributive Justice What are the alternatives to justice as fairness? Let's take a quick look at four rivals to Justice as Fairness: (1) utilitarianism, (2) egalitarianism (or "strict equality"), (3) desert, and (4) libertarianism.
      Utilitarianism Classical utilitarianism suggests that we should maximize the sum total of utility--Jeremy Bentham's slogan was "the greatest good for the greatest number." For classical utilitarians, the distribution of goods and resources doesn't matter in and of itself. What matters is how much good can be produced, not how it is distributed. This does not mean, however, that utilitarians do not care about the distribution of wealth and income. For example, a utilitarian might argue that wealth and income have "diminishing marginal utility." That is, the first $1000 of income is very important--it allows you to buy essentials like food and shelter. But the difference between $100,000 and $101,000 may be very minor--it allows you to buy a nicer car. Therefore, the utilitarian might argue that egalitarian distributions of resources will tend to increase total welfare--unless there is some countervailing reason such as increased incentives to produce useful goods and services that might result from unequal distributions of wealth and income.
      Utilitarians are frequently criticized on the ground that they lack a princpled objection to gross inequalities. Suppose, for example, that the total welfare of society could be improved by enslaving a small group. If this were the case, then utilitarians would be committed to the consequence that such slavery is "just" or "good," but this seems counter intuitive. Utilitarians can reply to this point in many ways, but one argument is that, in fact, slavery does not increase total utility, but actually is quite harmful. Critics are likely to say that this may usually be the case, but that utilitarianism falters on the exceptional cases where gross inequalities lead to net welfare gains. Of course, the argument can be extended by both sides, but you get the general idea.
      Utilitarians are likely to object to Rawls's second principle--the difference principle--on the ground that it requires that we pay a huge penalty in total welfare to produce a small benefit for those who are least advantaged. For example, suppose that the average income could be increased by $10,000 per year if the income of the worst-off group were decreased by $10 per year. Utilitarians argue that it is wrong to deprive a large group of a very substantial amount of income in order to preserve a small amount of income for a small group. Once again, the arguments will go back and forth, but you can see how the issue is framed.
      Egalitarianism Another rival of justice as fairness is "strict egalitarianism." The difference principle permits inequalities of wealth and income if those inequalities benefit the worst-off group in society. For example, it it could be shown that private ownership of capital was required to produced economic growth that benefits even the poorest members of society, the difference principle might allow Bill Gates to accumulate billions of dollars while the poorest members of society subsisted on a tiny fraction of that. Strict egalitarians maintain that distributive justice requires that each person recieve the same share--even if the consequence is that everyone (including the worst-off) gets less than they could if inequalities were permitted.
      Desert Yet another view of distributive justice would link distributive shares with desert or deservingness. In a very broad sense, one might say that all theories of distributive justice are desert-based. Egalitarian theories simply say that everyone deserves the same share. Fair enough! But I want to focus on a special kind of desert-based theory--one that focuses on merit or effort or some other quality as the basis for desert. For example, one might believe that wealth and income ought to be distributed in proportion to social contribution. If I work hard and create valuable goods or services, then I deserve a greater share of wealth and income, as compared with someone who makes a lessor contribution.
      This kind of desert-based theory is quite different from justice as fairness, utilitarianism, or egalitarianism. This difference could be expressed in one of two ways. We might say that these other theories have a different conception of desert: for example, egalitarians may believe that each person is equally deserve of resources. Or we might say that the other theories deny the relevance of deserve; for example, egalitarians may believe that contribution-based desert is morally irrelevant.
      Libertarianism Libertarianism represents another approach to distributive justice. On the one hand, libertarians are likely to endorse some version of what Rawls called the equal liberty principle. That is, libertarians are likely to believe that each individual should have an equal right to basic liberties (or autonomy). On the other hand, most libertarians reject that the idea that there should be any principles that govern the distribution of resources. For libertarians, the distribution of wealth and income flows from the free choices made by individuals. That might result in relatively equal distribution of wealth and income, or it might result in massive inequalities. For the libertarian what matters is whether the transactions or transfers are themselves just. If I freely choose to sell you Whiteacre, and I gamble away the proceeds while you grow rich, then the resulting inequality is just because it result from voluntary transactions.
      In a sense, then, libertarians reject the idea of "distributive justice" as applied to the distribution of wealth and income. At the same time, however, libertarians tend to be strict egalitarians when it comes to the distribution of basic liberty rights, because most libertarians believe that the basic liberties (freedom of conscience, self-ownership) cannot themselves be alienated.
    The Equality-of-What Debate One of the most interesting debates in contemporary political philosphy has been a debate among egalitarians about the proper subject of equality. Suppose you are an egalitarian. You believe that each person should recieve an equal share of whatever is truly valuable. The question is: what is it that should be divided equally?
    One possibility is "wealth and income." That is, we might believe that each person should be entitled to the same annual income. That answer becomes problematic, however, because different persons have different needs. Suppose that strict equality of income would produce a share of $20,000 per person per year. You are young and in good health, and can do quite well on that sum. I am elderly and in poor health; $20,000 per year will not even pay for the medical care necessary to sustain my life.
    Here is another possibility. We might aim for equality of "welfare." Of course, we would need to define welfare, and that's a tough job. Let's assume that welfare is a subjective state, produced by the satisfaction of preferences. Equality of welfare might require substantial disparities in the distribution of resources. Those who are ill or developmentally disable might require a larger share of resources to produce an equal share of welfare. Even that might be problematic. For example, those with really severe needs might require enormous resources--the possibility of very expensive high technology medicine has hightlighted this possibility.
    There is, however, another problem with equality of welfare. Suppose that you have simple tastes, and I have expensive tastes. You are happy with a modest house, simple food, and vacationing in the countryside. For me to achieve the same welfare level, I need a personal Gourmet chef, the finest wines and caviar, a mansion, and vacations at the Ritz in Paris. It seems quite odd to say that distributive justice requires that I get more resources than you, simply because my tastes are more expensive than yours.
    I think you can alreay see how interesting and exciting the equality-of-what debate can be. Let me just mention some additional moves, and then stop. Another step would be to introduce the idea of equal opportunity. Thus, we might decide that it is not "equality of welfare" but "equality of opportunity for welfare" that should be the criterion for distributive justice. Another important theory, associated with the economist Amartya Sen focuses on the "capacities for valuable functionings" as the subject of equality.
    Conclusion This is another Lexicon entry that is both too long and too short. Too long because it is a bit much to swallow in one quick read, but too short because the topic of distributive justice requires many multiples of the words devoted to it here--for even a short treatment. Nonetheless, I hope I have provided enough of an introduction to get you thinking!
    I've included a short bibliography and some links to other resources on the Internet! Bibliography
      Ackerman, Bruce, Social Justice in the Liberal State (1980)
      Joh Locke, Two Treatises of Government Student edition (Cambridge Texts in the History of Political Thought) (1988)
      Robert Nozick, Anarchy, State, & Utopia (1974)
      John Rawls, Justice as Fairness: A Restatemetn (2001)
      John Rawls, A Theory of Justice (1971)
      Jean-Jacques Rousseau,'The Social Contract' and Other Later Political Writings (Cambridge Texts in the History of Political Thought) (1997)