The Ethics of Human Rights (42): What’s the Best Approach to Distributive Justice?

What is distributive justice?

Distributive justice is a set of normative principles designed to guide the allocation of the benefits and burdens of economic activity. These benefits and burdens can be material goods and services, income, welfare or something else. Whatever they are, a theory of distributive justice will claim that they should be distributed or allocated to people according to some morally justified and morally just set of rules.

The assumption is that all government activity in some way affects the distribution of those benefits and burdens, whatever we do or believe, and that it’s important to guarantee that this distribution is done in a just way. So a theory of justice will propose rules for taking some benefits and burdens from people and giving them to others in a way that corresponds to ideals of justice.

Different types of distributive justice

Unfortunately, there isn’t one commonly accepted theory of justice. Different people have proposed different theories that describe different ideal methods of distributing different types of benefits and burdens. Some theories propose a more or less equal distribution of income; other theories focus on a more general understanding of benefits and talk about “welfare”. And some theories do not accept equal distributions and focus on desert. Etc. There are even some schools of thought that deny the justice of any sort of redistribution and argue that justice is about respecting property rights (libertarianism for instance). However, I’ll focus in this post on those who think that some kind of distributive justice is an important concern (which doesn’t imply that I believe that libertarianism is completely wrong about everything).

Let’s look at some of the more common theories and try to assess – superficially, I admit – what their respective merits are.

Strict egalitarianism

This theory of justice claims that all people should have the same level of material goods.

  • Advantages. This does seem to correspond to the basic moral rule that all people are owed equal respect.
  • Disadvantages. Different people have different needs, and so they need different and different amounts of goods. There’s also the problem of economic efficiency: strict equality removes incentives for economic productivity. Hence, it may result in overall wellbeing at a rather low level, making things worse for everyone. Conversely, everyone, even the worst off, can be made better off if goods/income/whatever are not distributed equally.

The Difference Principle

That last point was probably the origin of the so-called Difference Principle. This principle is part of John Rawls’ theory of justice. It does not demand strict equality as long as unequal distributions make the least advantaged in society better off than they would have been under strict equality. More precisely formulated: inequalities are to be to the greatest benefit of the least advantaged members of society. This principle is also called the maximin rule: an unequal distribution can be just when it maximizes the benefit to those who have the most minuscule allocation.

The justification of this principle is that higher incomes for more productive members of society provide those people with an incentive to be productive. And if they are productive, they produce more wealth, which can be used to benefit the least advantaged.

(Similar ideas can be found in sufficientarianism and prioritarianism).

  • Advantages. Contrary to egalitarianism, the focus is on the absolute wellbeing of the least advantaged, rather than their relative wellbeing, i.e. their (un)equal position. Hence, we avoid the egalitarian destruction of incentives and the resulting risk of leveling down.
  • Disadvantages. People’s relative positions are to some extent morally important. See this older post for a list of reasons why this is the case. Rawls does have a partial response to that concern because he argues that the inequalities permitted by the difference principle should be consistent with another rule of justice, namely the equality of rights and liberties. For example, high income inequality may make it impossible for people at the wrong end of this inequality to participate in democracy, to have their views represented and to get elected. Hence, Rawls argues for some corrections of inequality when inequality of resources negatively affects equal liberty. However, other disadvantages of inequality receive less attention. Another disadvantage of the Difference Principle is that it ignores desert.

Desert-based principles

It’s plausible to claim that a just distribution of goods should give people what they deserve, at least partially. We intuitively believe that at least some of the inequalities in life are deserved. People who work hard or contribute a lot to society deserve a higher level of wealth/income/welfare etc., even if such inequalities do not improve the position of the least advantaged. The hard working should not be forced to subsidize the lazy. They don’t deserve to be forced in this way, and the lazy don’t deserve to benefit in this way. (Many desert-based theories of justice are based on Locke’s theory of property).

Desert-based theories of justice claim that distributive systems are just insofar as they distribute benefits and burdens according to desert, at least partially. (This goes back to Aristotle).

  • Advantages. Desert is a strong moral intuition and it is therefore important to incorporate it in a theory of distributive justice. Theories that fail to do so will always seem unjust.
  • Disadvantages. We can make mistakes when deciding that some or other activity is deserving or meritorious. Distributions based on such mistakes will only be just by chance. But even when we don’t make these mistakes, it’s hard to measure and compare desert (is art more meritorious than science?). In addition, we can fail to identify real desert. Apparent desert may in fact be based on undeserved endowments. And that’s where luck egalitarianism comes in. (More problems with desert are described here).

Luck egalitarianism

Luck egalitarianism can be viewed as a desert-based type of justice. It proposes to redistribute the benefits and burdens that people don’t deserve and that result from bad luck, for example the bad luck of being born poor, in a poor country, without talents etc. Bad luck in the initial distribution of natural or social endowments should not affect one’s life prospects or distributions of income/wealth/etc. People don’t deserve those endowments and hence don’t deserve the distributions that result from it. These distributions therefore need to be corrected and equalized. After having equalized people’s starting positions in life, we have to let people free to decide what to do with their lives. Those decisions are their responsibility and hence they deserve the outcomes of their decisions. After corrections for endowments, people who work deserve the benefits of their work, and people who are lazy or careless deserve the results of their laziness or carelessness.

  • Advantages. Luck egalitarianism avoids the pitfalls of both crude desert-based justice and strict egalitarianism.
  • Disadvantages. There may be cases in which people who bring bad luck or suffering on themselves still have a claim to assistance. Also, luck egalitarianism produces some bad incentives and can be seen as demeaning (go here for more detail).

International distributive justice, or cosmopolitan justice

A small detail in the theory of luck egalitarianism has far-reaching consequences. Among other things, people don’t deserve the places in which they are born. And yet, those places can determine whether you are rich or poor, free or persecuted etc. To some extent, poverty and persecution are just bad luck, the bad luck of being born in the wrong country. Residency and citizenship are as morally arbitrary as race, gender, natural endowments etc. No theory of justice that takes the equality of human beings serious can ignore the unequal distributions caused by the place of birth, and has to correct these distributions. Arbitrary facts about places of birth, border, residency or citizenship – just like genetic defects, race, gender etc. – cannot be allowed to determine people’s lives. Limiting the principles of justice to citizens or residents is unacceptable.

That means that redistribution should be international and not just between citizens of a particular country. Of course, it’s plausible that people have more responsibilities to those closer to them: parents have more responsibilities towards their children than towards the rest of humanity; friends should help each other etc. Closeness is morally relevant because it means more power: the closer you are to someone, the easier it is to help. But equal dignity and equal respect for all human beings is also morally relevant, and closeness therefore doesn’t mean that people who are far away and who are unknown to you and unrelated to you can’t legitimately demand assistance.

Preference to people close to you – and those people can perhaps include fellow nationals rather than just family and friends – shouldn’t be the only or overriding concern. We want to avoid chauvinism, parochialism and egoism. The metaphor of the family can turn nationalism into something very nasty. And anyway, the salience of closeness has been substantially reduced by technology: nowadays, it’s easy to send money abroad for example.

Still, in some plausible conception of international justice there can be room for some form of differentiation of duties towards fellow citizens and foreigners. International or cosmopolitan justice is therefore possibly coherent with the Difference Principle: international inequalities are acceptable if they improve the position of those who are globally worst off (although Rawls himself did not believe this because he correctly pointed to the absence of global institutions, and institutions are crucial to his theory).

  • Advantages. International (or cosmopolitan) justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities and people burdened with bad luck should be treated equally, why not foreigners? Borders are indeed just as arbitrary from a moral point of view as gender, race or talent and they can’t, therefore, determine distributions. International justice assumes all the consequences of the theory of human equality and makes the theory of justice more coherent compared to theories that focus on domestic distribution only.
  • Disadvantages. International justice can burden the citizens of wealthy countries with extreme and unbearable responsibilities. After all, we want a coherent system of justice that treats people equally regardless of their place of birth. So it’s not just that rich countries have to prevent starvation and genocide abroad. That seems to be difficult enough already, but international justice makes things even more difficult because it gives people abroad the same benefits and burdens as citizens. That can imply, for example, completely open borders or far-reaching redistribution leading to substantially reduced welfare levels in rich countries. Another problem is more practical: it’s not clear how international redistribution should take place. In the case of national distribution there is a state taking care of it. Not so on the global level.

Distributive justice across generations

The same reasons that argue against the moral salience of closeness in space argue against the moral salience of closeness in time. The fact that some people will be born after our death isn’t a good reason to impose burdens on them. Hence, our distributive principles should take into account the interests of future generations. It wouldn’t be just to design a system of distributive justice that takes care of the least advantaged among us, that removes the influence of bad luck suffered by the living, that preserves a place for desert, that is insensitive to borders, and that at the same harms the interests of future generations (for example because it fails to provide a good system for the management of natural resources). More here on transgenerational justice.

  • Advantages. Like international justice, transgenerational justice points to the ultimate consequences of liberal egalitarianism. If women, racial or religious minorities, people burdened with bad luck and foreigners should be treated equally, why not future generations? Time is indeed just as arbitrary from a moral point of view as borders, gender, race or talent and can’t, therefore, determine distributions.
  • Disadvantages. Again, like in the case of international justice, we run the risk of imposing enormous burdens on the present generations. Moreover, there’s the so-called repugnant conclusion: if we multiply the number of future people – which is potentially a very large number of people – then we run the risk of drowning the interests of present generations. A small benefit for a very large number of future people will then justify a very heavy burden on the limited number of people currently alive. However, this doesn’t mean that we should neglect the interests of future people.

Welfare-based principles

Theories of justice can also focus on welfare. According to welfare-based theories of distributive justice, the only value of goods, resources, desert-claims, equal freedom and even equality is their positive effect on welfare. Distributive principles should then be designed so that they enhance welfare. Welfare maximization is the only criterion to decide distributive rules.

Utilitarianism is the main welfare-based theory of justice. “Utility” can be understood as more or less identical to “welfare”. It can be defined as pleasure, preference satisfaction, happiness etc. According to utilitarianism, distributing benefits and burdens means distributing them in such a way that we maximize overall utility (i.e. overall preference satisfaction, happiness etc.). We have to choose the pattern of distribution that maximizes the sum of all satisfied preferences, of all instances of happiness etc. (unsatisfied preferences or unhappiness count as negatives, and some “higher” or more intense preferences may be weighted higher, depending on the type of utilitarianism we are talking about).

  • Advantages. Utilitarianism’s main advantage is its compatibility with freedom: it doesn’t prefer particular types of preferences, pleasure, happiness etc., and it therefore allows people to realize their own visions of the good life.
  • Disadvantages. What about evil preferences, such as hate and racism? If those kinds of preferences are widespread and the individual targets of those preferences are a minority, then the latter will suffer because overall wellbeing will be increased by allowing the realization of evil preferences. Also, it’s not because it’s rational for an individual to sacrifice some present preferences for a larger future gain, that it’s moral for a society to sacrifice individuals for the gain of the whole, as utilitarianism often requires. That is why some utilitarians have added rights or rules to their equations: preferences can only be satisfied when they don’t violate the rights of others.

Feminist approaches

Feminism has convincingly argued that the traditional theories of justice described above tend to ignore how distributive principles affect the fate of women, especially given the fact that women still have primary responsibility for child-rearing. Distributions within the family are usually not discussed in theories of justice. Therefore, these theories can be criticized as paternalistic or at least unwittingly supportive of paternalism. Many theories of justice include specific rules about the protection of the private sphere as an area that is off-limits for the government and hence for distributive efforts. So theories of justice have made themselves powerless to address gender inequality.

Conclusion: What’s the best approach to distributive justice?

So, after all this and if you’re still with me, what do we take away? Strict equality and simple utilitarianism seem the least appealing. And any coherent approach has to include rules that apply both nationally and globally, has to be gender sensitive and has to reserve some attention to desert. Intergenerational concerns are also hard to avoid if we want to maintain coherence, although perhaps we could limit the impact of the demands of future generations by claiming that actual suffering is more urgent than possible suffering.

This brings back the concern of the burden justice imposes on people. If we want to take the best of all the previously described approaches to distributive justice, we necessarily end up with a “thick” conception of justice, imposing a heavy burden. We have to take into account all people currently living, not just our fellow citizens, as well as people not yet born. And we have to give special attention to gender. But at the same time we don’t want to have a theory of justice that’s so burdensome that people will say: thank you but no thanks. It’s fine to have a coherent theory of justice but if this coherence leads to impossible demands on people or demands they are not (yet) willing to accept, then the practical use of that theory is nil.

One possible reaction to this concern about the burden of justice is the adoption of a prioritarian approach, and more specifically a global gender sensitive prioritarianism with a time preference: the worst off should get the most attention. For example, poor women currently living in a patriarchal society should be the first beneficiaries of redistribution. The disadvantage of this is that it will force us to abandon, temporarily, a lot of people we don’t want to abandon, for example welfare beneficiaries in rich countries. Or we could bite the bullet and say with Peter Singer that the burden is what it is and we should carry it. Morality may be more demanding than we had initially thought. Rather than adapting morality in order to diminish its burden, we just accept the burden.

More posts in this series are here.

Discrimination (4): Private Discrimination, Freedom of Association and Property Rights

To what extent should anti-discrimination laws apply to private associations, to voluntary employment contracts and in private property? Let’s have a look at a number of recent news stories:

  • There was the controversy over Rand Paul’s opposition (shared by many other libertarians) to the application of the Civil Rights Act to private enterprises, which implies that a restaurant owner for example should be able to segregate his restaurant or even refuse black customers for example. (This view is based on the libertarian opposition to government regulation of the private sector).
  • Then there was the case of the Christian student’s union refusing gay members.
  • A teacher in a Christian school got herself fired because of premarital sex.
  • There’s the famous case of the Boy Scouts’ refusal to allow gay members (Boy Scouts of America v. Dale).
  • The D.C. police department recently decided to no longer intervene in an ongoing protest by Muslim women over their place in area mosques. These women have provoked confrontations in mosques by claiming the right to worship next to men, a right refused by conservative Muslim men. The police initially escorted the women out of the mosques, as requested by the men, but won’t do that anymore. The men claim that the mosques are private institutions, and private property rights should prevail. The women, they say, are trespassers.
  • And some time ago the British BNP, a racist political party, was forced to accept black members.

A similar but different case – because not based on prejudice or discrimination (except if you count PC as discriminating between views) – was the firing/quitting of journalist Helen Thomas following a politically incorrect and possibly antisemitic comment on Israel.

We can, of course, imagine an infinite number of similar cases:

  • Can a gym be held liable for dismissing a fat fitness trainer?
  • Should a business be able to offer a gays-only retirement home?
  • Can a landlord invoke religious objections to renting to an unmarried or gay couple?
  • Etc.

What all such real and imaginary cases have in common (even the Thomas case, which I’ll exclude from the current discussion because it’s slightly different and doesn’t – necessarily – involve discrimination) is that different values clash. Equality, equal treatment and the absence of discrimination on the one hand clashes with the freedom of association, the right to property and the freedom of contract on the other hand. (In the Thomas case, free speech clashes with freedom of employment contract).

If you’re a value pluralist – as I am – then these are hard cases. Property rights, freedom of association, freedom of contract (including in employment), equality and non-discrimination are all important values. It’s a right to hire or fire employees, accept or reject members of associations and serve or fail to serve customers on whatever basis you wish, even if this means discriminating certain employees, members or customers. But it’s also a right not to suffer discrimination. None of these values is by definition or a priori more important than the others. (If you think only freedom and property count, then you can wrap this up in a minute. Likewise if you think equality does count but is the automatic result of freedom. Don’t laugh, some actually think like that. Remember trickle down and the invisible hand).

All those rights are important, and when they clash, as in our examples, we’ll have to make a hard choice: which right in which case will receive priority? That will be, by definition, a case by case trade-off. You can’t use a general rule, since all these rights are – in the abstract – equally important. You can’t use a rule that says, for example, “property rights are equally important as equal treatment, except for bigots”. It’s not because you’re a bigot that you lose your property rights, your freedom of association or your freedom of contract. Those rights are human rights and intrinsically valuable.

So let’s assume that we will find many cases in which equal treatment is more important than property, contract or association rights. Pre-Civil-Rights-Act-America would be such a case. We will then engage in some justified anti-discrimination efforts that limit these other rights. And we will acknowledge that there is a limitation of rights going on. That there is a trade-off between rights and that the limitations of certain rights don’t mean that those rights are no longer important. It’s a necessary evil and an unfortunate consequence of clashing rights.

We’ll also find numerous cases in which property, contract or association rights will outweigh discrimination concerns. The example of the fitness teacher given above (who doesn’t have a right to employment in the business of his choice), or the gay retirement home (non-gay pensioners have ample opportunities elsewhere) would be cases like this. The same goes for the case of the guy protesting ladies’ night. Not all consequences of discrimination are equally harmful.

Consequently, anti-discrimination efforts can’t be an absolute concern and can’t become the only preoccupation. Otherwise, other rights would suffer needlessly. A balance has to be found. We have to decide how far our anti-discrimination measures can go without weighing too heavily on other rights, and how far bigots can be allowed to use their rights without harming the targets of their bigotry. (Or how far non-bigots can discriminate for non-bigoted reasons).

And when attempting to make this balance, we have to look at the specific circumstances and the relative harm that we can do on both sides. Small scale bigotry against a single individual who has numerous outside options – another employer, another restaurant, another organization etc. – won’t initiate anti-discrimination action, certainly not by the government. Jim Crow, on the other hand, inflicted enormous harm on large groups of people during many decades. And it would not have been abolished by a few activists, boycotts or sit-ins. Nor, for that matter, by the government ending its own discrimination. Active government action against private – and public – discrimination was required. And did happen in the Civil Rights Act of 1964 and later decisions which banned private actors from withholding services or denying employment on the basis of race (or of religion, sex, or national origin). Those anti-discrimination efforts did harm property and other rights but it’s clear that a failure to intervene would have meant perpetuating the greater harm of Jim Crow. I’ll come back to the topic of government vs private intervention against discrimination in a moment.

A parenthesis: some cases fall outside the current discussion. Government mandated discrimination in public places – trains, buses, public schools etc. – is completely and utterly unacceptable in all cases since the government can never be allowed to discriminate. Government discrimination also doesn’t cause a conflict of rights. The topic here is strictly private discrimination.

Take a look at this quote:

Wasn’t racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn’t it a private wrong? (source)

In fairness to the author, he doesn’t seem to answer completely in the affirmative. And yet, why would you even ask those questions? Well, you should if you’re a libertarian and if liberty – including the liberty to do with your private property as you like and to freely engage in contracts and associations as you please without limitations – is the supreme value in life. However, if we accept the logic of this quote, then domestic violence and a whole bunch of other crimes are “private affairs” that shouldn’t be governed by “problematic” laws. And yet they are governed by laws, and hence we have laws “dictating how people run their associations”, and that’s a “problematic restriction”. We may think domestic violence or marital rape is wrong, but it’s a “private wrong” and hence none of our business. Domestic violence or marital rape take place within “private property” and can be seen, with a stretch of the imagination, as part of the freedom of contract (if a wife doesn’t want to be beaten or raped she should cancel the marriage contract, just like a pre-1964 African American who didn’t want to be discriminated by a restaurant owner should have gone elsewhere).

Of course, no one in his right mind would view domestic violence or marital rape like this, and no libertarian does. But the fact that libertarians – as well as many conservatives for that matter – never spill a drop of ink defending these crimes and yet fill libraries with defenses of private discrimination (and have even run a presidential campaign on the basis of this defense) just goes to show that equality and non-discrimination aren’t very important concerns for them, or at least not as important as violence and rape.

Do we really need government intervention to harmonize the two legitimate concerns? The concern for private freedom to discriminate within your property or associations, and the fight against discrimination? Some say that the fight against discrimination shouldn’t necessarily entail government coercion against private discrimination and should focus on private activism. That’s possible of course. Boycotts may help, just as minority organization, lobbying, education etc. (Another proof that free association is an important right. Minorities often depend on freedom of association and on strong property rights for their activism, and free commerce and freedom of contract tend to lower prejudice). There are also market mechanisms that counteract discrimination and fostering those mechanism might reduce discrimination without government coercion.

But that effort is certainly naive in many settings, especially when discrimination is widespread and group conformity counteracts market incentives (for example when customers are willing to pay a premium to visit segregated businesses, in which case the business owners will not be pressured by the profit motive to accept all customers; or when businesses are threatened into respect for segregation). Likewise when discrimination is government mandated. Hence the need, in many cases, for government coercion to break widespread patterns of discrimination that seriously reduce the options and opportunities of those who are discriminated against.

Why specifically state intervention? Racist business restaurant owners or bigoted employers or organizations can perhaps, sometimes, be persuaded to accept non-whites customers, employees or members through boycotts, social ostracism or the pressures of the market, but state intervention is often necessary in order to force them to do so. And they should be forced when the targets of their discrimination are seriously harmed by this discrimination, don’t have options elsewhere and can’t wait for the slow process of the market and of mentality changes. For example, a black person failing to get hired because of his or her race, after many attempts, suffers more harm than a black person failing to get served in a restaurant but having many more restaurant options close by.

It can be, in some settings, immoral to say that government shouldn’t intervene and that only social activists should struggle against racism and discrimination. In many cases, such as the southern parts of the US under Jim Crow, a struggle that isn’t backed by government often means risking life and limb. Discrimination in the US was underpinned by private terrorism (KKK) and actively supported or condoned by government law enforcement officers. Insisting that discrimination should be combated solely by private actors means exposing them to serious risks.

A final consideration: what if property is the direct result of discrimination? Can the descendants of slave owners really claim that their property rights should be a justification of their discriminatory actions? Or is their property illegitimate given the fact that it wouldn’t have existed without slavery? That would be an additional reason to favor equal treatment over property rights, when these two values clash.

The Ethics of Human Rights (33): Different Types of Justice and the Link to Equality

What I want to do here is list some of the types of justice that are commonly identified, and see how they are connected to the concept of equality in order to find out if the traditional link between justice and equality holds up to scrutiny. So let’s first have a look at some possible meanings of the word “justice”.

1. Distributive justice

Distributive justice (often called social justice) is about the allocation of resources and burdens. Justice may require that this allocation is done in accordance with certain rights (e.g. an equal right to a basic standard of living), merit or other criteria. This type of justice is about the fairness of what people get (e.g. basic goods, recognition, rewards etc.).

2. Contributive justice

Contributive justice is the opposite: it’s about what people are expected or able, not to get, but to contribute to society. It’s mainly about work: should people be required to be productive members of society, and if they are, should they have a right to organize their contribution in a fair and just way (for example, is it fair or just that some people are bound to menial tasks while others have much more interesting work?).

3. Criminal justice

Criminal justice is about rectification of interpersonal harm, about the restoration (when possible) of an initial position disturbed by harmful behavior, about retribution and punishment, and about restitutions or reparations of previous harm. Criminal justice is therefore often called corrective justice, rectificatory justice or punitive justice. And sometimes these words are supposed to refer to entirely different (sub)types of justice because there can indeed be substantial differences: criminal punishment may be intended to correct or rectify a wrong (e.g. theft), but it can also be used as plain retribution or even vengeance when the wrong is such that it can’t be corrected (e.g. murder).

Some argue that criminal justice is a type of distributive justice. One interpretation of distributive justice sees it as the distribution or allocation of rewards and punishments according to merit or desert. Punishment for a crime is then distributive justice. But that seems to be stretching the meaning of the word “distribution”. A judge in some case does not distribute anything from the offender to the victim and the victim recovers nothing (e.g. in the case of murder). Those are precisely the cases in which criminal justice is not corrective. I think it’s preferable to keep these concepts separated.

Criminal justice includes the work of the Courts, but also less formal corrective or reparative models, such as truth commissions, apologies etc. Transitional justice, some forms of transgenerational justice, mob justice or vigilante justice also fall under this header.

4. Procedural justice

Procedural justice, unlike the previous types, isn’t about certain just or fair outcomes (just distributions, contributions or punishments), but about fair procedures. The focus is on the processes of arriving at a certain decision (judicial, political etc.). The rules governing the fairness of trials are an example of procedural justice, as are the rules governing legislation in a democracy. People will differ over the fairness or correctness of the legal or political decisions, but they can agree on the fairness of the process. In many cases, defendants in criminal trials or losers in democratic elections may be disappointed in the outcomes but accept them nonetheless because they see that there was fairness in the process; for example, they were allowed to make their case in public with equal resources, there was an impartial judge who weighed the different arguments and so on.

5. Other types

Other types of justice include divine justice (usually a mix of distributive justice for the poor and criminal justice for the sinful), poetic justice (the fateful infliction of harm upon the harm-doer), instrumental justice (doing justice in order to achieve something else, e.g. deterrence) etc.

The link to equality

How are these different types of justice linked to equality?

Distributive justice is often seen as the most egalitarian type of justice, because most interpretations of distributive justice see it as a kind of equalizer of basic goods. Everyone needs a fair share of basic goods, and that means an equal share. Poverty reduction is typically seen as an exercise in distributive justice. However, distributive justice doesn’t need to be egalitarian. Aristotle for example claimed that justice wasn’t merely equality for the equal but also inequality for the unequal: we usually sense that there is an injustice when a teacher gives the same grades to everyone, the meritorious as well as the lazy. However, you could say that even this merit-based type of distributive justice implies equality, namely equality between reward and merit.

Contributive justice as well focuses on an equal contribution in life’s pleasant and unpleasant tasks. Regarding criminal justice the picture is more blurred. Originally, criminal justice focused heavily on equality. The biblical lex talionis – an eye for an eye – was an explicitly – and horrendously – egalitarian form of punishment. The wrongdoer should suffer the same injury as his victim. That’s not fashionable anymore, but still we see that criminal justice strives towards some degree of equality or at least proportionality or correlation between the type of harm inflicted and the nature or weight of the punishment. It’s unfair to impose a life sentence for the crime of not paying your debts, or a fine for murder. Strict equality is, of course, often impossible: you can’t execute Hitler 6 million times. But sometimes it’s possible – i.e. in the case of theft or property damages – and we can demand full correction or rectification from the criminal. Most of the time, some kind of proportionality is more appropriate, not only because we want to avoid cruel punishments but also because we don’t have any other choice.

Procedural justice as well relies heavily on equality: an equal right to call witnesses, equal weight given to testimony, equal duration of arguments, equal access to courts and media etc. Even poetic justice is a form of equality because the wrongdoer suffers the same harm as he inflicted on or intended for someone else. In the story of Esther, for example, Haman is executed on the gallows he prepared for someone else. Something similar can be seen in all examples of poetic justice.

So, whereas justice is not the same as equality, the links between these two concepts are quite strong.

The Ethics of Human Rights (32): Human Rights and the Chain of Causation

Who causes human rights violations? Causation is a key factor in the attribution of moral and legal responsibility, so it’s an important topic in human rights talk. The problem is that there is often not one single cause of rights violations, and hence not one single violator. Rights violations can be the collective responsibility of an entire group or a government for instance, but the issue I want to focus on here is another type of collective responsibility. It’s possible that there is a chain of causation: a series of events taking place over a period of time, and one event causes the next one until a rights violation occurs. The question is then: is it only the last moral agent, the last one in the chain of causation that results in a rights violation, who is the violator and the morally and legally responsible party? Or do some of the agents earlier in the chain of causation also carry some responsibility?

Let me give an example. Take the case of a drunk driver causing a fatal accident and thereby violating the right to life of his victim. Just before the accident, a pub-owner willingly sold the visibly intoxicated man more alcohol. You could argue that both persons caused the accident: the drunk because of his drunk driving, and the pub-owner because he sold the drinks. Both could have taken action to avoid the accident (assuming that the driver wasn’t sufficiently intoxicated before he bought the extra drinks from the pub-owner). And because they both could have acted otherwise, they are both responsible – morally and legally – for what happened. Both have violated the rights of the victim.

Causing something isn’t a sufficient condition for responsibility. You could go further down the chain of causation and claim that the pub-owner’s parents also caused the accident, because they had the choice of having or no having a child. By having the child, they initiated a chain of causation that led to the accident. They could have taken action to avoid the accident. However, no one would claim that they are thereby responsible for the accident. The difference between the parents on the one hand and the pub-owner and the driver on the other hand, is that the parents could not have foreseen the possible consequences of their actions. Hence, responsibility requires causation plus foresight rather than simply causation (some would say that intent should be added as well). (Of course, in some legal contexts, cause is sufficient for liability: if I drive my car into another one, I may be liable for the damages even if I didn’t intend what happened and could not have foreseen it. Product liability is another example. In other legal contexts, cause is not necessary: if my dog bites you, I’m liable, even though I didn’t cause the harm. But those aren’t the cases I’m interested in).

The pub-owner and the driver could have and should have foreseen the possible consequences of their actions, and probably did foresee them in some part of their brain. We all learn that some consequences flow from some actions, with high degrees of probability. And yet they still went ahead with their actions. Hence both are responsible for what happened because they caused it, because they could have acted otherwise, and because they could have foreseen the consequences. The chain of causation leading up to the rights violation goes back many steps (and many years if not centuries), but the chain of responsibility stops somewhere along the road. It stops with the first person in the chain of causation able to foresee the ultimate result of the chain and able to act otherwise. In our example, the pub-owner.

But, of course, this example is too simple. Often we have to go back more than two steps in the chain of causation to find the first point of responsibility. Suppose the pub-owner bought his pub from some other guy who knew at the time about the reckless way in which the pub-owner serves his customers. (Suppose the pub-owner did something similar before he bought his current pub). How far back in time and in the chain of causation should we be allowed to go in order to attribute responsibility? And do all responsible parties share the same “amount” of responsibility? Probably not; that would violate our moral intuitions, which tell us that the driver carries the heaviest burden. He had many alternative options: he could have decided not to drink so much, not to go to the pub in the first place, or take a taxi home etc. The pub-owner could of course have decided to stop selling booze, but maybe he didn’t know that the drunk was intending to drive back home. And if he knew, how could he have stopped him driving back home? The person selling the pub also could have decided to sell it to someone else, but perhaps there wasn’t another possible buyer, and perhaps he believed in redemption and didn’t want to judge a person’s future on the basis of past mistakes.

But if not all responsible parties share the same “amount” of responsibility, how do we differentiate between the levels of responsibility of the different parties and calculate each party’s share? Does time play a role? Does responsibility diminish as time passes? Those are terribly difficult questions and most of the time we just forget about them and simply punish the last link in the chain and accord him or her the full weight of responsibility, whether this is just or not. One example in which we do try to answer these questions is when a judge or a jury takes attenuating circumstances into account when sentencing: for instance, a criminal may receive a more lenient sentence when it is clear that childhood neglect or abuse contributed to his actions. However, we rarely give the parents their part of the punishment in such cases.

These questions are relevant is a huge number of human rights cases. Take the more important example of world poverty. To some degree, one can argue that the West shares some of the responsibility for poverty in the Third World (Thomas Pogge is famous for this argument). It imposes trade restrictions, it supports corrupt dictators and deficient institutions, and it inflicted colonial rule. Some of these actions go back some steps in the chain of causation. For example, a corrupt dictator may be the last cause in the chain leading to poverty, but support for this dictator by the West is an earlier cause. In the case of colonialism, the chain of causation is complicated by the transgenerational aspect: to what extent are the people in the West who are currently alive responsible for the actions of their forefathers? More on this question here.