Transforming unjust distributive structurespage 1
Transforming unjust distributive structures
1Introduction
There exists a myriad of ways to assess human flourishing, each beset with its own difficulties. Economists tend to stick to a rather blunt, but easily measurable instrument, namely income. One does not have to be an egalitarian to agree that the inequalities of income that prevail in our societies are to some extent unjust. However, there is reason to expect that efforts to mitigate this injustice will face an obstacle frequently ignored by theories of justice: From the point of view of those privileged by an unjust distribution in the real world, adjusting this distribution to the demands of justice will necessarily be disadvantageous. The transformation of unjust structures, in other words, is almost guaranteed to meet stiff resistance.
In this paper, I make two observations regarding the dynamics of such a transformation, both of which can be built upon to overcome the resistance mentioned. In doing so, my focus lies on the process of reducing income inequalities, rather than on the evaluation of distributions of income in the first place. Therefore, my considerations should be relevant independently of the choice of criterion to evaluate human flourishing – be it income, capabilities, or resources more generally speaking.
The first observation singles out distributive contexts as a case where the institutionalisation of justice in the letter of the law is indispensable. The point made here depends on a particular view of the relationship between morality, law, and politics, albeit one that I hope to show is fairly uncontroversial. The second observation contrasts the approach of retributive justice with one that is oriented towards the future dynamics of income distribution. The prospects of transforming unjust structures of income distribution better when focusing on the latter.
2Two preliminaries
2.1Equal respect
Moral theories put forward interpretations of what it means to treat people equally. Such interpretations become significantly harder when the circumstances of the people in question diverge. The status quo of an unjust structure is a paradigm case for diverging circumstances. To ensure that a transformation treats people equally instead of remedying one injustice with another, it is essential to spell out in advance what background moral theory we will use to assess the justice of the transformation.
So what does it mean to treat people equally? As a first but sufficiently accurate approximation, it requires balancing the values of impartiality and respect towards the individual. As far as impartiality is concerned, no one should be treated any better or worse than anybody else; as to the notion of respect, any treatment that fails to take into account the personal circumstances of the individual in question can be criticised for treating him or her as a means only. Pure consequentialist theories, which admit only agent-neutral reasons to morality, usually neglect the value of respect towards the individual. Pure individual rights theories, on the other hand, tend to score low on impartiality in their evaluation of conduct on the basis of its conformity to certain agent-relative reasons.[1]
One proposal to reconcile impartiality and human dignity and to thereby overcome the weaknesses just mentioned has been put forward by Thomas Nagel (cf. above all his monograph Equality and Partiality). His moral theory acknowledges both the personal and the impersonal viewpoints as constitutive parts of morality. One might already see how such a theory offers a more promising approach to the question of transforming unjust structures. Whereas a purely consequentialist approach would recommend a radical redistribution and ignore the individual circumstances of the better off in the process, a pure individual rights approach would imply a heavy bias towards the status quoand thereby over-protect the better off. Nagel’s moral theory, in contrast, allows us to ask the more sophisticated question to what extent imposing the disadvantages of transformation on the better off is compatible with equal respect.
The comprehensiveness of Nagel’s theory does come at a cost. As Nagel acknowledges, it may not always be possible to strike a balance between agent-neutral and agent-relative considerations. He gives the example of an extreme inequality between rich and poor, where it is conceivable that any proposal can be reasonably rejected either by the poor as insufficiently generous or by the rich as too demanding.[2] A parallel drawback holds for the transformation of unjust structures in general, but I will not address this issue here.
2.2Morality and the law
“What will progress towards the better yield for humanity? Not an ever increasing quantity of morality in attitude, but an augmentation of the products of its legality in acts of duty, independent of the motivations behind those acts,...” (Kant (1789), section 9, my translation[3])
Anticipating my first observation on the transformation of unjust structures, namely that its chances of success heighten when the demands of justice are encoded in the letter of the law, I need to clarify what I take the relationship between morality and the law to be. More particularly, we are interested in the relationship between justice, i.e. that part of morality concerned with the interactions of people, and the law. My intention in this section is limited to explicating my position on this relationship and putting it into the context of philosophy of law; a defence of the position lies beyond the scope of the paper.
The philosophy of law contains a spectrum of perspectives on the connection between morality and law, ranging from natural law theory on the one hand to legal positivism on the other. Whereas on the former conception, law should “seek to inculcate habits of good conduct”[4] or, differently phrased, set incentives to pursue actions that do not conflict with our moral standards, legal positivism claims that “law is to be identified solely by reference to the form it takes or the source from which it comes, with no built-in restrictions as to content or purpose.”[5] This emphasis on a formal rather than substantive account of law is, among other things, a response to the difficulties encountered by natural law theorists in trying to agree on one substantive morality.
Unsurprisingly, given that both doctrines bear advantages, reconciliation between them has been suggested before. The particular route of mediation I would like to pursue here reminds us to take seriously the distinction between law as it is and law as it should be. Whereas it seems vital for the latter to indeed be informed by considerations of morality, it is essential for the former to possess the formal force stipulated by legal positivism. Note that there will always be a gap between both morality and law as it should be, and between law as it should be and law as it is. First, the demands of even an ideal system of law will always fall short of the demands of morality or justice. This is due to the simple fact that, preferably, the demands of morality will be met through what is standardly called “inner commitment” rather than through legal, and hence external, enforcement. For some kinds of actions, like supererogatory ones, it would even defeat their nature if they were performed out of compliance to a law. As we shall see in the next section, however, it is unlikely that the demands of distributive justice fall into this category. Second, there will always be a gap between law as it should be and law as it is; in short, we simply do not live in an ideal world. The actual passing of legislation is subject to severe political pressures, which contribute to the suboptimal character of existing legislation in two ways. On the one hand, imagine a situation in which it would be desirable to have a law, but there is no majority for it. On the other hand, imagine a situation where again a legislative approach is desirable, but the political process has passed a law that in fact conflicts with the demands of morality.
When we talk about “unjust distributive structures”, this can refer to both of the two scenarios just sketched. The injustice can lie in a lack of legislation or in inadequate legislation from the perspective of justice. This distinction will play an important role later on. In both cases, transforming unjust distributive structures may be described as making law as it is more like law as it should be.
3Distributive justice and the law
Recall the problem we expect to encounter in the transformation of unjust distributive structures: The better off are unlikely to be prepared to give up their privileges and will therefore resist change. Our objective is to find out to what extent this resistance may be objectionable, and to identify ways to overcome resistance of this kind. Can the institutionalisation of the demands of distributive justice in the legal system provide such a way?
To answer this question, we need to examine the motivational structure of distributive problems. Suppose we are faced with a distributive problem to which we know the fair solution. Take for example the problem of dividing up a cake among a given number of people. Ceteris paribus, i.e. absent any special claims because someone has for instance baked the cake or is in a situation of need that justifies priority, we accept an equal division of the cake as the fair solution. However, in realising this outcome, the participants face a motivational hurdle with two distinct elements.[6] First, even if I am willing to comply with the principle of equal division, why should I do so as long as I do not have an assurance that others will do the same? After all, I risk putting myself at a disadvantage compared to one of the other participants who decides not to comply and gets a disproportionately large piece of the pie. Let us call this the collective action element of the motivational hurdle. Second, let us relax the assumption of my noble intentions in the first place. Even if I have an assurance that others are willing to comply with the equal division principle, why should I do so as well? It seems hard to resist the temptation to free-ride on the compliance of others. Let us call this the weakness of will element of the motivational hurdle.
The encoding of the demands of distributive justice in the law enjoys mixed success in overcoming these two elements of the motivational hurdle. Given that a collective action problem of the sort described above exists, I will presently claim that a legislative approach is not only successful in solving it, but there is reason to think that it is even necessary for solving it. Distributive problems are, by definition, marked by a conflict of interest. Everyone would like as big a piece of the cake as possible for himself. However, at least when we are concerned with the distribution of a particular cake, a bigger piece for me necessarily implies a smaller piece for someone else. This is why distributive problems are usually characterised as zero-sum. Note that this feature renders the collective action problem more significant. In a non-distributive context, I will be satisfied with an assurance that enough others comply with the moral principle in question in order to comply. Think, for example, of the institution of promise keeping in society. Its effectiveness is maintained as long as a sufficiently large majority of the people adhere to it. Unless one is unlucky and happens to encounter one of the few ‘promise breakers,’ one will not be negatively affected by the less-than-universal compliance. In contrast, the zero-sum character of distributive problems means that non-compliance by only one other member of society will be sufficient to automatically put everyone else at a relative disadvantage. The threshold of defectors required to undermine the effectiveness of distributive principles is significantly lower than in non-distributive contexts. Since the disadvantages of non-compliance by others are of this immediate tangibility in distributive contexts, I argue that individuals will ask for the most effective assurance on mutual compliance that exists, namely a legal one.
However, note the assumption at the beginning of the last paragraph. The existence of a collective action problem presupposes that everyone is willing in principle to comply with the distributive maxim in question. This might be a safe assumption in the neat case of dividing up a cake, but it certainly is not when there is an unequal initial distribution as in our case of unjust distributive structures.
In fact, the co-ordination aspect of collective action begs the question against the problem at the root of this paper, namely the resistance of the better off to a transformation of the unjust structure. The issue of assuring compliance in its pure form only arises when there is some kind of agreement on the object of compliance or, in other words, when the interests of the participants to the social arrangement overlap. Under the status quo of an unjust distributive structure, this overlap is not big enough. Instead, one might say that the prospect of losing out from the transformation creates a particularly strong form of the weakness of will problem for the better off. Why, indeed, should they be prepared to jump the motivational hurdle of cutting into their own flesh by accepting the transformation?
Under a benevolent dictatorship, legislation could be introduced that changes the pay-off structure for the privileged in ways that makes compliance with just distributive principles attractive, and the motivational hurdle would be taken by decree. By transforming the “active demands” of morality into “passive demands”[7] of the legal system, incentives would be set that favour moral behaviour – a process in the spirit of the Kantian quote in section 2.2. In a democratic society, however, the best we can do is to create the most favourable conditions for the better off to jump this hurdle themselves. You might think this is a pipe dream, but the final section of the paper will hopefully convince you that it is at least in part realistic.
Before turning to this last section though, let me take stock as well as point out one additional problem that the present investigation throws up. There is one conceptual and one practical lesson to be learnt from this section. First, the conflict of interest constitutive of distributive problems renders an assurance about other people’s compliance with the distributive maxim critical. A legal institutionalisation of the distributive maxim in question seems best placed to provide this assurance. The second, practical, lesson in effect throws us back to square one of this paper. Passing the legislation necessary to transform the unjust distributive structure of the status quo will run into precisely the kind of resistance to change we have observed all along. From this second perspective, this section has merely helped us to focus our objective in addressing the resistance of the better off: Can we reduce the tension between their interests and the proposed transformation – lower the motivational hurdle, in other words – without compromising on justice?
Apart from these insights, if not positive conclusions, our concern with a legislative approach to distributive justice in this section generates an additional problem. What if, as is quite conceivable, the unjust distributive structure of the status quo is itself already encoded in the law? What if, in the terminology of our preliminary section, there is a contradiction rather than a mere gap between law as it is and law as it should be? Of the two scenarios sketched at the end of that section, some philosophers think that an unjust distributive structure is less likely to result from a lack of legislation than from inadequate, i.e. unjust legislation. Thomas Pogge finds a poignant way to express this impression: “At least in the modern era, injustice appears in official clothing, under the name of justice, openly before the eyes of the world. It subverts not merely what is right, but the very idea of right, and leaves its victims without any recourse or appeal.” (Pogge (1989, p.276)
Recognising this problem amounts to acknowledging that the principal weakness of legal positivism is beginning to haunt us. We naturally resent the idea that the “official clothing” should protect injustices from the recourse of their victims. Consequently, when these injustices take the form of particular laws or even of the entire legal system, we start asking the question whether injustice does at some point begin to undermine legitimacy. In other words, are there content-based restrictions to the formal force of law as it is after all? We want to answer both yes and no. We want to answer no, because legal positivists have a point when they cite the procedural aspect of legislation as its prime source of force. We want to answer yes, because we have a strong intuition that civil disobedience is justified in extreme cases.
4A dynamic approach
So far, we seem to have failed to make any inroads into the resistance of the better off. Given that we stipulated the transformation of the unjust structure to be disadvantageous for them, this may not even come as a surprise. Perhaps we can make some progress by analysing these potential disadvantages more closely. One intuitively plausible metaphor for distributive problems is that of dividing up a cake. If one way of cutting up the cake is unjust, this seems to justify redistribution from those with larger pieces to those with smaller ones.
However, looking at distribution as a zero-sum problem in this way is an artefact of treating it in a static framework, i.e. a consequence of the fact that we are limiting the question of justice to the distribution of one given cake. Provided we take a snap-shot of the distribution of income in society and classify it as unjust, there is indeed no way of making this particular situation more just other than taking away from some and giving to others.