Property, community, and the problem of distributive justice

Theoretical Inquiries in Law

Volumn 10, Issue 1, 2008, Pages

  Penner, J E ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 58149402213     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1213     Document Type: Article

References (46)

1. See HILLEL STEINER, AN ESSAY ON RIGHTS 237-49 (1994);
2. see also Hillel Steiner, Choice and Circumstance, 10 ratio 296 (1997). Contrast G.A. Cohen, Self-Ownership, World Ownership, and Equality: Part II, 3 SOC. PHIL. & POL'Y 77 (1986);
3. Alan Ryan, Self-Ownership, Autonomy, and Property Rights, 11 SOC. PHIL. & POL'Y 242 (1994);
4. J.W. HARRIS, PROPERTY AND JUSTICE (1996).
5. See, for example, the sources by Steiner cited supra note 1, on the ownership of one's children as the "products" of one's "labor."
6. See, e.g., RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 29-31 (3d ed. 1986).
7. ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 160-64 (1974). A moment's thought will reveal that the contract or arrangement under which people pay their extra to see Mr. Chamberlain play doesn't work in any legally recognizable fashion.
8. See Neil MacCormick, Jurisprudence After Hart, in THE LEGACY OF HLA HART: LEGAL, POLITICAL AND MORAL PHILOSOPHY eh. 3 (Matthew Kramer et al. eds., forthcoming);
9. Jeremy Waldron, Hart and the Rule of Law, in THE LEGACY OF HLA HART: LEGAL, POLITICAL AND MORAL PHILOSOPHY, supra, ch. 5.
10. The state here is defined to include the norms and institutions of the state and the law which heavily shape a society's economic organization, e.g., institutions like the London Stock Exchange, labor unions, and the Bank of England as much as Parliament or the law courts.
11. G.W.F. HEGEL, PHILOSOPHY OF RIGHT (T.M. Knox trans., Clarendon Press 1942) (1820).
12. JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999).
13. HEGEL, supra note 7, para. 153.
14. Id.
15. See RAWLS, supra note 8, at 72, for the first formulation of the difference principle in its final form.
16. Id. at 103.
17. Id.
18. Id. at 472.
19. Id. at 458-59 (emphasis added).
20. Id. at 460.
21. Id.
22. I believe this way of putting things has much in common with the perspective taken by Raimond Gaita in RAIMOND GAITA, A COMMON HUMANITY: THINKING ABOUT LOVE AND TRUTH AND JUSTICE (1999). I have only recently become aware of this work, and I have much to think about because of it.
23. In respect of which concern tribalism, nationalism, racism, fascism, totalitarianism, and so forth, are the well known perversions.
24. RAWLS, supra note 8, at 462.
25. Id. at 462-63 (emphases added).
26. Rawls's model for determining how much liberty citizens should have is one of distribution - roughly, as much liberty for you as is compatible with an identical share for me, which seems to draw on the homespun "your right to swing your fist ends where my nose begins" idea of liberty. Leaving aside the issue whether the largest share possible is really something we should be aiming for (on which point see H.L.A. hart, Rawls on Liberty and its Priority, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 223, 223-47 (1983), and for Rawls's textual alteration of his theory in response,
27. see JOHN RAWLS, POLITICAL LIBERALISM 289-368 (1993)), basic liberties, such as rights to life and bodily integrity, freedom of speech and of assembly and so on, cannot be distributed in any coherent sense. We do and can distribute things, and we do that for completely different reasons than we acknowledge that it is wrong to kill, maim, or break up your meetings. In the former case, it is clear that we can talk about a fair distribution. In the latter case, a "fair distribution" of the right to assemble is simply the property fetish getting in our way. And if its hold over us were complete, think of how our intuitions would change for the worse. To my mind, the very least you could say about the Holocaust was that it was unfair to the Jews. But, if I understand Rawls correctly, that is the most you could say, in the sense that that would be the most fundamental criticism there could be. That somehow the Jews were short-changed, albeit to a very great extent. But this is an atrocious way of thinking about the Holocaust, and could only be conceived when we have misconstrued liberty as some item of value or property which is to be dished out. (To cast the evil in terms proposed by GAITA, supra note 18, ch. 131, one might say that these genocidal acts depended upon the Nazis' disregard of the humanity of the Jews; in my terms, see supra text accompanying note 18, which may be essentially identical, the evil was not an offence against equality but an offence against universality; the Nazis' treatment of the Jews depended upon treating them as if our common nature, our humanity, was not itself a source of rights and duties; on either way of putting the matter, this was evil irrespective of the comparative treatment by the Nazis of others.) I hasten to distinguish this argument from the Marxian idea that, under capitalism, everything is commodified, and from the similar economic idea that from the perspective of the rational self-interested actor, any possible "good" of whatever kind is commensurable with all the rest, and the same cost/benefit reasoning applies to the exercise of choice. My argument, if I am correct, is that Rawls has mistakenly transposed the idea of distribution, and fairness in distribution, which only really applies to the case of things which we might hold as property, to the issue of what basic liberties we ought to recognize. I am not claiming that Rawls thinks of the basic liberties as on a par with property or other economic rights.
28. Yitzhak Benbaji has pointed out that participation in scientific achievements has its self-interested, voluntaristic aspect - scientific success brings money, honor, and prestige - and these can be distributed fairly or unfairly. While that is true, this self-interested, voluntary characterization is true only of this secondary aspect of the value of science, which is dependent upon science's primary value, the value of science per se, about which it is not true. It is this primary value as a shared social or cultural activity of discovery which makes sense of any material gains or prestige that attach to individual scientists. After all, if science itself had no value, who would pay scientists anything or accord them any honor for their scientific work?
29. Rawls, supra note 8, at 386.
30. Id. at 155.
31. Id. at 156.
32. The wisdom of teaching the idea of fairness or any other moral principle with rules like "one slices and the other chooses" has always escaped me. Surely one wants to instill in the child that cuts the cake the appreciation that having the power to slice the cake is not a license to act selfishly. Presumably, one would like a child to overcome any inclination to selfishness in the first place rather than regard as a manifestation of morality a procedure which only undermines the effectiveness of selfish action, and which leaves the selfish motivation otherwise untouched.
33. For a full elaboration of Hegel's theory of property and its situation within the total ethical framework set out in The Philosophy of Right, see J.E. PENNER, THE IDEA OF PROPERTY IN LAW ch. 8 (1997).
34. See id.
35. HEGEL, supra note 7, para. 244 (emphasis added).
36. Id. para. 248.
37. Id. para. 188.
38. Though God help us if we think the present government's thoughts about remedying it will do any good.
39. THE INT'L BANK FOR RECONSTRUCTION & DEV./THE WORLD BANK, WHERE IS THE WEALTH OF NATIONS? MEASURING CAPITAL FOR THE 21 ST CENTURY (2006).
40. RAWLS, supra note 8, at xvii.
41. Id. at 23-24.
42. Id. at 24.
43. Yitzhak Benbaji, Comment on James Penner (Jan. 2-3,2008) (unpublished comment, presented at the Cegla Center conference on Community and Property, on file with author).
44. Judith Jarvis Thomson, Self-Defense, 20 PHIL. & PUB. AFF. 283 (1991).
45. See supra text accompanying note 19.
46. See supra text accompanying note 26.