Theories of distributive justice

Allegory or The Triumph of Justice by Hans von Aachen.

Theories of distributive justice need to answer three questions:

1. What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
2. Between what entities are they to be distributed? Humans (dead, living, future), sentient beings, the members of a single society, nations?
3. What is the proper distribution? Equal, meritocratic, according to social status, according to need, based on property rights and non-aggression?

Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution. On the other hand, property rights theorists argue that there is no “favored distribution.” Rather, distribution should be based simply on whatever distribution results from non-coerced interactions or transactions (that is, transactions not based upon force or fraud).

This section describes some widely held theories of distributive justice, and their attempts to answer these questions.

Egalitarianism

According to the egalitarian, justice can only exist within the coordinates of equality. This basic view can be elaborated in many different ways, according to what goods are to be distributed—wealth, respect, opportunity—and what they are to be distributed equally between—individuals, families, nations, races, species. Commonly held egalitarian positions include demands for equality of opportunity and for equality of outcome. It affirms that freedom and justice without equality are hollow and that equality itself is the highest justice.

At a cultural level, egalitarian theories have developed in sophistication and acceptance during the past two hundred years. Among the notable broadly egalitarian philosophies are socialism, communism, anarchism, left-libertarianism, and progressivism, all of which propound economic, political, and legal egalitarianism, respectively. Several egalitarian ideas enjoy wide support among intellectuals and in the general populations of many countries. Whether any of these ideas have been significantly implemented in practice, however, remains a controversial question. One argument is that liberalism provides democracy with the experience of civic reformism. Without it, democracy loses any tie─argumentative or practical─to a coherent design of public policy endeavoring to provide the resources for the realization of democratic citizenship.

Giving people what they deserve

In one sense, all theories of distributive justice claim that everyone should get what they deserve. Theories disagree on the basis for deserving. The main distinction is between theories that argue the basis of just deserts is held equally by everyone, and therefore derive egalitarian accounts of distributive justice—and theories that argue the basis of just deserts is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice by which some should have more than others. This section deals with some popular theories of the second type.

According to meritocratic theories, goods, especially wealth and social status, should be distributed to match individual merit, which is usually understood as some combination of talent and hard work. According to needs-based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals’ basic needs for them. Marxism can be regarded as a needs-based theory on some readings of Marx’s slogan “from each according to his ability, to each according to his need“.^[16] According to contribution-based theories, goods should be distributed to match an individual’s contribution to the overall social good.

Fairness

J. L. Urban, statue of Lady Justice at court building in Olomouc, Czech Republic.

In his A Theory of Justice, John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We don’t know who in particular we are, and therefore can’t bias the decision in our own favour. So, the decision-in-ignorance models fairness, because it excludes selfish bias. Rawls argues that each of us would reject the utilitarian theory of justice that we should maximize welfare (see below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls’s two principles of justice:

• Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
• Social and economic inequalities are to be arranged so that they are both
  • to the greatest benefit of the least advantaged, consistent with the just savings principle, and
  • attached to offices and positions open to all under conditions of fair equality of opportunity.^[17]

This imagined choice justifies these principles as the principles of justice for us, because we would agree to them in a fair decision procedure. Rawls’s theory distinguishes two kinds of goods – (1) liberties and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2).

Property rights (non-coercion); having the right history

Robert Nozick‘s influential critique of Rawls argues that distributive justice is not a matter of the whole distribution matching an ideal pattern, but of each individual entitlement having the right kind of history. It is just that a person has some good (especially, some property right) if and only if they came to have it by a history made up entirely of events of two kinds:

1. Just acquisition, especially by working on unowned things; and

2. Just transfer, that is free gift, sale or other agreement, but not theft (i.e. by force or fraud).

If the chain of events leading up to the person having something meets this criterion, they are entitled to it: that they possess it is just, and what anyone else does or doesn’t have or need is irrelevant.

On the basis of this theory of distributive justice, Nozick argues that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft.

Some property rights theorists also take a consequentialist view of distributive justice and argue that property rights based justice also has the effect of maximizing the overall wealth of an economic system. They explain that voluntary (non-coerced) transactions always have a property called pareto efficiency. A pareto efficient transaction is one where at least one party ends up better off and neither party ends up worse off. The result is that the world is better off in an absolute sense and no one is worse off. Such consequentialist property rights theorists argue that respecting property rights maximizes the number of pareto efficient transactions in the world and minimized the number of non-pareto efficient transactions in the world (i.e. transactions where someone is made worse off). The result is that the world will have generated the greatest total benefit from the limited, scarce resources available in the world. Further, this will have been accomplished without taking anything away from anyone by coercion.

Welfare-maximization

According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require sacrifice of some for the good of others, so long as everyone’s good is taken impartially into account. Utilitarianism, in general, argues that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism, and only indirectly, if at all, to do with rights, property, need, or any other non-utilitarian criterion. These other criteria might be indirectly important, to the extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action.

Theories of sentencing

In criminal law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. Laws may specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given a certain set of offense and offender characteristics. The most common purposes of sentencing in legal theory are:

In civil cases the decision is usually known as a verdict, or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done (“damages“) and orders intended to prevent future harm (for example injunctions). Under some legal systems an award of damages involves some scope for retribution, denunciation and deterrence, by means of additional categories of damages beyond simple compensation, covering a punitive effect, social disapprobation, and potentially, deterrence, and occasionally disgorgement (forfeit of any gain, even if no loss was caused to the other party).