A Short History of Distributive Justice

A SHORT HISTORY OF DISTRIBUTIVE JUSTICE

A Short History of Distributive Justice

Samuel Fleischacker

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts

London, England • 2004

Copyright © 2004 by the President and Fellows of Harvard College

All rights reserved

Printed in the United States of America

First Harvard University Press paperback edition, 2005

Library of Congress Cataloging-in-Publication Data

Fleischacker, Samuel.

A short history of distributive justice / Samuel Fleischacker.

   p. cm.

Includes bibliographical references and index.

ISBN 0-674-01340-9 (cloth)

ISBN 0-674-01831-1 (paper)

1. Distributive justice. I. Title.

HB523.F58 2004

340'.115—dc22         2004040517

In memory of Jerry F. De Witt

SINE QUO NON

Contents

Acknowledgments

Abbreviations

Introduction

1 From Aristotle to Adam Smith

1. Two Kinds of Justice

2. The Right of Necessity

3. Property Rights

4. Communal Experiments and Utopian Writings

5. Poor Laws

2 The Eighteenth Century

1. Citizen Equality: Rousseau

2. Changing Our Picture of the Poor: Smith

3. The Equal Worth of Human Beings: Kant

4. To the Vendôme Palais de Justice: Babeuf

3 From Babeuf to Rawls

1. Reaction

2. Positivists

3. Marx

4. Utilitarians

5. Rawls

6. After Rawls

Epilogue

Notes

Bibliography

Index

Acknowledgments

It was in the course of a review of Charles Griswold’s book on Adam Smith that I started to think about changes in the meaning of the phrase distributive justice, and Charles’s response to my comments was not only a model of scholarly generosity, but an extremely helpful prod to further reflection. Our exchange on this subject then led to a chapter titled Distributive Justice in my On Adam Smith’s Wealth of Nations: A Philosophical Companion (Princeton University Press, 2003), which I draw on in parts of Chapters 1 and 2 of this book; I am grateful to my editor at Princeton, Ian Malcolm, and Princeton University Press for permission to do that.

David Waldman and Leon Kojen, in their extremely well-informed and thoughtful way, raised a number of objections to the arguments in my chapter on distributive justice, and in answering their objections—at which point the original chapter began to balloon to more than seventy pages—I began to think I had a book here. I started work on the book during a year’s leave at the Institute for the Humanities at the University of Illinois, Chicago; I thank Mary Beth Rose and Linda Vavra for making the Institute such a welcoming place and fostering an atmosphere that encourages scholarship. I also want to thank my colleagues at the Institute that year and the audience at the Institute lecture where I first presented this material for their comments. Sonia Michel and Deirdre McCloskey were particularly helpful, and they directed me to some useful sources on the history of welfare policies. I then learned a great deal from the experience of teaching this material as a graduate class in the Philosophy Department at the University of Illinois, Chicago—many thanks to Andy Blom, Tina Gibson, Barbara Martin, Chris Martin, and Ben Haines, whose enthusiasm and rich insights were extremely valuable.

I owe a similar debt of thanks to those who responded to presentations of this material at the 2001 meeting of the Eighteenth Century Scottish Studies Society in Richmond, Virginia, and at the Eighteenth Century Seminar at Northwestern University in 2003. I thank Richard Sher and Jerry Muller for their role in setting up the former and Judith Schwartz Karp and Bernadette Fort for their invitation to the latter. Richard Kraut gave me especially rich suggestions at Northwestern. A lively Chicago Political Theory workshop with Ike Balbus, Stephen Engelmann, Paul Gomberg, Michael Green, Charles Mills, and Justin Schwartz contributed significantly to my revisions of Chapter 3. Others whose comments have been helpful include Eric Schliesser, Leonidas Montes, Jeff Weintraub, Tony Laden, Ciaran Cronin, and especially Dan Brudney. Andy Blom has done a terrific job as a research assistant, and Tina Gibson efficiently and cheerfully prepared the index. My thanks go to all of these people, but my even greater thanks go to my wonderful family—Amy, Noa, and Benji—who make life worth living every day.

Abbreviations

The following works are referred to in the text by the abbreviations listed here; full publication details for them can be found in the bibliography. If I cite a text several times in a row, in a single paragraph, I use its abbreviation the first time but just give a page number for subsequent citations.

Introduction

Distributive justice, also called social justice or economic justice, is a phrase on many people’s lips these days. Demonstrators against globalization invoke it when they decry the evils they associate with multinational corporations; people who oppose capitalism altogether have used it for much longer than that. Many assume that the phrase, and the complex of ideas it represents, is an ancient one, one with which human beings have for time immemorial evaluated their societies. But this is a misimpression, albeit a misimpression that circulates widely, even among scholars. Consider the following:

The theory of distributive justice—how a society or group should allocate its scarce resources or product among individuals with competing needs or claims—goes back at least two millennia. Aristotle and Plato wrote on the question, and the Talmud recommends solutions to the distribution of an estate among the deceased’s creditors.1

This little summary is not precisely false. Aristotle did write about something he called distributive justice, Plato did write on how property should be allocated in an ideal society, and the Talmud, like other ancient legal texts, contains discussions of competing claims to property. But we are getting a misleading picture here, as we can see when we recall the following additional facts:

  1. Aristotle never put the problem of how to allocate scarce resources under the heading of distributive justice, nor did he regard need as the basis of any claim to property;

  2. Plato did not recommend his communal property arrangements for an entire society, nor did he see them as demanded by justice; and

3. The problem of how to distribute an estate among competing creditors is not normally a question that depends on the principles a society or group uses to allocate its collective resources or product.

So while it is true that people have long seen conflicting property claims as a matter for justice, and while it is also true that philosophers have long been concerned with societal principles of resource allocation, it does not follow that these two kinds of issues have long been brought together. And, in fact, they have not been. Until quite recently, people have not seen the basic structure of resource allocation across their societies as a matter of justice, let alone regarded justice as requiring a distribution of resources that meets everyone’s needs.

It is this last object to which distributive justice in its modern sense is directed, and in this sense the notion is little more than two centuries old. In its original, Aristotelian sense, distributive justice referred to the principles ensuring that deserving people are rewarded in accordance with their merits, especially regarding their political status. To get from the Aristotelian to the modern notion, we need minimally to explain why everyone might merit a life free from need. But it was widely believed for a long time that certain kinds of people ought to live in need, that they would not work otherwise, or that their poverty was part of a divine order: God could have made all men rich, but He wanted there to be poor people in this world, that the rich might be able to redeem their sins.2

In this book, I want to begin telling the story of how we got from the Aristotelian to the modern sense of distributive justice. One reason for telling this story is simply that it is interesting, and there is no booklength treatment of it. But the fact that there is no such book suggests another reason for one. It is very possible that there is no such book because people do not generally realize that the meaning of distributive justice has changed, or that for most of human history practically no one held, even as an ideal, the view that everyone should have their basic needs satisfied. Socialist historians used to teach that some such ideal has been around for all human history, at least in the West. Books with titles such as From Moses to Lenin (a real volume) can be found in any library that retains its holdings from the 1940s and ’50s. The just-so story in such books goes like this:

Once upon a time, decent but religiously befuddled leaders such as Amos, Isaiah, and Jesus taught the equality of all people and the right of all people, consequently, to life without suffering. Their teachings were distorted and suppressed by oppressive powers in a variety of class struggles, but they were at least held up as an ideal until the eighteenth century. Then came modern economics, with its healthy purging of religious and other superstitious notions about how economies work, but with, as well, an amoral valorization of selfishness that drove out the old respect for the poor. The bourgeoisie now threw off the cloak of morality that had hidden the class struggle in feudal times, which was an advantage in that workers came to understand their true situation but a disadvantage in that the suffering of workers increased enormously. Finally, scientific socialism appeared, which provided a synthesis between the prophetic and the modern attitudes, uniting the norms of premodern religious teachings with a science stripped of the confusions and fatalism that had made it impossible to translate concern for the poor into practice.

This story satisfies the dialectical inclinations of many socialists, as well as their dislike of the cautiousness and hard-boiled realism of eighteenth-century social science. It also fits the facts about Christian teachings, on the one hand, and the harshness of the Industrial Revolution, on the other, well enough to appear convincing. But it is radically mistaken in many ways, and especially in its nostalgic fondness for premodern attitudes toward the poor. The nostalgia derives, I believe, from a wish to see modern capitalism as a wrong turn in human history, to maintain that a kinder, gentler human nature, and view of human nature, existed before capitalism and may, therefore, return. Coupled with this hope is an unwillingness to accept the possibility that the very modest reforms held out by David Hume, Adam Smith, James Madison, and the like are really the most that can be expected from the political realm. If one can show that a set of corrupt moral views—about, for instance, the role of selfishness in human life—and not merely an astute grasp of the way economies work, lies behind the much-vaunted realism of the classical political economists, then one may be able to remove the scientific mantle from their policy proposals. If the eighteenth-century social scientists were led only by class prejudices to their view of human nature, then perhaps their low expectations of politics were also just prejudices. Perhaps it is possible, contrary to their teachings, that the political realm can transform the economic one.

So socialists have ideological reasons to project the history of distributive justice backward into the distant past. But laissez-faire ideologues often endorse much the same account of that history, for opposite ideological reasons. Promoters of free markets often like to see themselves as proud modernists, separated by the advent of science from the superstitions and muddy thinking of the past. It goes well with that view of oneself to embrace the supposed cold realism of eighteenth-century science even as socialists reject it. Hume and Smith, one can say, made modern economics possible by freeing themselves from the foolish just price notions of the Middle Ages. The laissez-faire ideologues are then happy to agree that these thinkers did something new in rejecting an ancient notion of distributive justice. The ideologues simply welcome that rejection instead of condemning it.

My point is that the history going into both these views is confused. Eighteenth-century social scientists did not reject distributive justice in the way we today use that phrase because that notion did not yet exist. Once we recognize that fact, we will be able to see that, far from being cold amoralists who delighted in a realism that ruled out state aid to the poor, they helped lay the groundwork for such aid. The history of distributive justice should thereby help us understand the eighteenth century better, but it should also help us better understand ourselves and our own debates over aid to the poor. Only when we disentangle the modern from the premodern notion of distributive justice can we see precisely what the modern one involves, what new—often, but not always, admirable—shifts in human thought have enabled it to arise.

Distributive justice in its modern sense calls on the state to guarantee that property is distributed throughout society so that everyone is supplied with a certain level of material means. Debates about distributive justice tend to center on the amount of means to be guaranteed and on the degree to which state intervention is necessary for those means to be distributed. These are related issues. If the level of goods everyone ought to have is low enough, it may be that the market can guarantee an adequate distribution; if everyone ought to have an ample basket of welfare protections, the state may need to redistribute goods to correct for market imperfections; if what everyone ought to have is an equal share of all goods, private property and the market will probably have to be replaced altogether by a state system for distributing goods. Distributive justice is thus understood to be necessary for any justification of property rights, and such that it may even entail a rejection of private property. A small but influential minority of citizens and theorists, believing that protecting property rights is the central job of justice, question whether distributive demands belong to justice at all. Robert Nozick’s Anarchy, State, and Utopia is the primary philosophical source for this dissenting view.

But even Nozick does not doubt that the phrase distributive justice has always been understood to apply to the distribution of property, by the state, and for the needy. In its Aristotelian sense, however, distributive justice called for deserving people to be rewarded in accordance with their merits, was seen as bearing primarily on the distribution of political status, and was not seen as relevant at all to property rights. At least at first glance, then, the ancient and the modern meanings of the phrase are very different. Above all, the ancient principle has to do with distribution according to merit while the modern principle demands a distribution independent of merit. Everyone is supposed to deserve certain goods regardless of merit on the modern view; merit making is not supposed to begin until some basic goods (housing, health care, education) have been distributed to everyone. We can be quite sure that this is not what Aristotle had in mind when he wrote about political status being distributed in accordance with social or moral status.

How, if at all, can we get from the Aristotelian to the modern notion of distributive justice? Perhaps we should retreat from this to a more primitive question: how does distributive justice, in either of its senses, come to fit under the general heading of justice? Well, what is justice, generally speaking? As a formal matter, justice has usually been understood to be a particularly rational, enforceable, and practicable virtue. Unlike, say, wisdom or charity, justice has been understood across cultures and historical periods to be a secular and a rational virtue, whose demands can be explained and justified without appeal to religious beliefs; to be a virtue that governments can and should enforce, and that indeed ought to be the prime norm guiding political activity; and to be a virtue that, if only because politicians need to organize their plans around it, ought to take as its object practicable, readily achievable goals. Thus promoting belief in Christ or enlightenment via the Buddha has never been held to be a project for justice because the goodness of these projects, if they are good, cannot be explained in purely secular and rational terms. Thus warmth in friendship, while a good thing according to almost everyone, is not considered an object of justice because it depends on the uncoerced feelings of individuals. And thus guaranteeing to everyone freedom from illness has never been included among the objects of justice because, so far at least, it seems to be impossible.

Moving from formal to substantial features, justice in general is usually understood to be a virtue that protects individuals against violence or dishonesty at the hands of other individuals, and against demands by the wider society wantonly to sacrifice their lives, their freedom, or their property. Wanton is a vague term, of course. It is hard to say for what causes, and when, individual interests might legitimately be sacrificed. Perhaps individuals can be asked to sacrifice themselves for any cause they share; perhaps they can be asked to sacrifice themselves only when the survival of their society is at stake; perhaps they should never be asked to sacrifice themselves. Some religious and political figures have argued that individual interests should never be allowed to get in the way of the greater human good. But those who hold the latter view have also tended to have little regard for justice, or to redefine it in virtually unrecognizable ways; people who respect justice (or ius or recht or haqq or tzedek)3 tend correspondingly to take the importance of the individual very seriously.

Again, what constitutes respect for individuals can be a difficult and controversial matter, but some kinds of acts are universally held to violate such respect. Physically harming our neighbors or defrauding them is supposed to be something that everyone, regardless of religious or cultural beliefs, recognizes as wrong; and preventing such harm is generally recognized as something governments must do, whatever else they do. So the prevention of harm clearly belongs to justice. Some call this negative or commutative justice and say that that is all there is to the virtue. But justice has also long been considered to have some bearing on the distribution of goods and status. Justinian famously opens his Digest by declaring that [j]ustice is giving to each person what is due to each. This formulation is supposed to cover both commutative and distributive justice. What is due to our neighbors is that we not kill, beat, or otherwise physically harm them and that we not take things that belong to them. What is due to people who violate these minimal standards of justice—to criminals—is a punishment fitting to their crimes. What is due to people with whom we have a contractual relationship is that we deliver on our promises or make good for our failure to do so. And what is due to people who make great contributions to society is some sort of reward—something that fits their achievement. Thus distributive justice is just one case of giving to each person what is due to each. Note, however, that this suits only the Aristotelian concept of distributive justice, where goods are distributed in accordance with merit. To get to the modern concept, we need to explain why it might be fitting to the poor that they receive housing, health care, education, and so on. Perhaps such goods are due to every human being, just by virtue of being human. But where then would the merit lie, to which such a distribution would be fitting? In any case, as we will see, it takes a very long time before anyone suggests that any distribution of goods is due to all human beings, just in virtue of being human.

In summary, then, given the general meaning of justice, we need at least the following premises to arrive at the modern concept of distributive justice:

  1. Each individual, and not just societies or the human species as a whole, has a good that deserves respect, and individuals are due certain rights and protections in their pursuit of that good;

  2. Some share of material goods is part of every individual’s due, part of the rights and protections that everyone deserves;

  3. The fact that every individual deserves this can be justified rationally, in purely secular terms;

  4. The distribution of this share of goods is practicable: attempting consciously to achieve it is neither a fool’s project nor, like the attempt to enforce friendship, something that would undermine the very goal one seeks to achieve; and

  5. The state, and not merely private individuals or organizations, ought to be guaranteeing the distribution.

These five premises are closely linked, but it is particularly important, and particularly difficult, to get from Aristotle’s distributive justice to my premise 2.4 To say that a person merits a certain thing suggests that he or she has some excellent quality or has performed some excellent action to which that thing is fitting, while to distribute a thing to all people implies precisely that they deserve that thing independently of any special character trait or special action they have performed. From the point of view of the Aristotelian tradition, this makes no sense. Moreover, to most premodern moral and political thinkers the poor appeared to be a particularly vicious class of people, a class of people who deserved nothing. Even those who believed strongly in helping the poor regarded such help as undeserved: it was to be bestowed as a matter of grace, an expression of the benevolence of the giver.

I use the word grace advisedly. Most premodern proponents of charity, or of the communal sharing of wealth, based their views on religious grounds that violate premise 3. The apostles’ community in the New Testament, in which distribution was made unto every man according as he had need (Acts 4:35), was a sort of priestly order, keeping the faithful from being too involved with material goods, rather than a solution to political or social problems. It had descendants in the monastic order established by Francis of Assisi, in the Anabaptist kingdom in Münster in 1534–35, and in the Diggers’ community of 1649, all of which were premised on a belief in radical self-effacement in the presence of God rather than on any secular, purely rational belief in the equality of human beings.

Nor were the other premises