Distributive justice is primitive justice

Distributive justice according to Aristotle

It is agreed that it was Aristotle who introduced the notion of distributive justice. In his Nicomachean Ethics, and at the side of the general notion of justice, he mentioned special kinds of justice, which he called corrective justice and distributive justice.

The idea of corrective justice does not seem to have inspired much interest, as it is only the reversal of injustice done in the past. Therefore, it is entirely dependent on the more general or plain notion of justice. It can hardly be justified as a special concept, as it cannot “correct” anything that wasn’t unjust according to the general notion of justice, and it cannot (must not) provide reasons or criteria for acting in a way that is different from that recommended by plain justice.

In contrast, the other special justice mentioned by Aristotle seems to have aroused much interest –even passion. It is distributive justice.

What is it according to Aristotle? In a few words, it is the kind of justice that pertains to the distribution of things shared in common among a number of people. Aristotle introduces the concept of distributive justice in chapter 2 of book V of his Nicomachean Ethics. He writes (I cite the well known translation by W. D. Ross): “one kind [of justice] is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another)”

In chapter 3 of the same book, Aristotle adds that there are quarrels “when either equals have and are awarded unequal shares, or unequals equal shares. Further, this is plain from the fact that awards should be 'according to merit'; for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters of aristocracy with excellence.”

Later, when in chapter 4 he introduces the other kind of special justice –corrective justice– Aristotle points out that it is different from distributive justice “For the justice which distributes common possessions is always in accordance with the kind of proportion mentioned above (for in the case also in which the distribution is made from the common funds of a partnership it will be according to the same ratio which the funds put into the business by the partners bear to one another); and the injustice opposed to this kind of justice is that which violates the proportion. But the justice in transactions between man and man is a sort of equality indeed, and the injustice a sort of inequality; not according to that kind of proportion, however, but according to arithmetical proportion. For it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it”.

From all this, we can draw two conclusions. First, that the concept of distributive justice presupposes that a number of people have a share in some goods. If they don’t have a share, the concept does not apply to them. Distribution in that case would be another name for robbery. Secondly, that distribution may not be equal, it must be proportionate to the share one has in the common goods –the “common goods of a partnership” as Aristotle calls them in the paragraph just cited.

So far, everything is very abstract and (perhaps for the same reason) unobjectionable. Now, one can ask, how is that some people come to get a common share in goods? We may think of partners that contribute funds to a common enterprise. That seems unproblematic too. More difficult questions arise when we consider Aristotle’s assertion that distribution should be made according to merit and to the part each one has in the common goods (and honors) according to the constitution. In modern societies, constitutions do not assign goods to anyone. And it would look odd (to say the least) that honors were to be assigned to any man or group of men by the constitution in proportion to ideas about their merit.

Of course, all that made more sense more than 2000 of years ago. Social ranks were important and stable, wealth and honors were determined mostly by a man’s position, by the fact that he belonged to a family of patricians, or of slaves. Land was the main source of wealth. Its cultivation and the use of the profits were largely determined by ancient customs and laws.

Primitive justice

Hunting large animals involves a concerted effort, especially if one has only primitive weapons. The distribution of meat, skins and the like must have been regulated by very stable customs. Effort was probably taken into account, but also position and prestige. In this way, primitive societies provided opportunities for applying distributive justice that make no sense in the modern world. Of course we have partnerships, but distribution in them is regulated by contract. If you don’t think that the deal is fair you don’t sign. There is no need to argue about justice in the distribution.

Primitive societies confronted yet another and very common situation that demanded the application of the concept of distributive justice. It was another kind of hunting: the hunting of human beings and the pillage of their belongings. That was a source of profits very highly regarded in primitive tribes, as well and in ancient civilizations.

At the beginning of the Iliad we have an example of a quarrel about distributive justice that conveys to us, modern men, the atmosphere and the assumptions that must have underlined the application of the concept by the ancients.

Agamemnon, the most powerful military leader of the Greeks who siege Troy is asked to give up a girl he had received as part of the booty. He must do that in order to placate the gods –the enslaved girl is the daughter of a priest. Agamemnon acquiesces, but says that then he will take another girl from the ones given to other chieftains. He takes Briseis, who had been given to Achilles.

Achilles protests that this amounts “to rob me of the prize for which I have toiled, and which the sons of the Achaeans have given me. Never when the Achaeans sack any rich city of the Trojans do I receive so good a prize as you do, though it is my hands that do the better part of the fighting”. Here we see a dilemma: should distributive justice be made according to the part which Achilles took in the common effort, or according to the undisputed higher status of Agamemnon?

Of course, today it shocks us to read that men would engage in a dispute about the ownership of a slave and the shares that belong to those who sacked a city, and that they would have the effrontery of talking of justice. However, distribution of land and prisoners taken in war was a common practice in antiquity. It was practiced in the West by Greeks, Romans, Vikings, Normans, etc. It was very well known in the East too and in America before the arrival of Europeans. Moreover, as a source of wealth the sword was generally much more highly esteemed than the plow. Its profits fell in the realm of distributive justice, and certainly not as a minor issue.

The famous jurist Rudolf von Ihering tells us in his book Prehistory of the Indo-Europeans that conquest was one of the main sources of the right to property among the nomadic peoples that populated Europe in ancient times. Perhaps some of his conclusions might be disputed today, but the testimony of the Iliad shows that Ihering’s conclusion wasn’t far off the mark.

Again, none of that applies to modern societies. Two thousand years ago there was a major issue that provided an occasion for the application of the notion of distributive justice –distribution of booty. It doesn’t exist today. Modern wars are seldom profitable. But even if they were, few people would think that it makes sense to use the concept of justice in a discussion about the distribution of the spoils of war.

The French historian Fustel de Coulagnes says in the introduction to his book The Ancient City that we have a natural but misguided tendency to think that the ancients meant for liberty something similar to our own notion. He writes that in ancient Greece and in primitive Rome: “The human person counted for very little against that holy and almost divine authority which was called country or the state. The state had not only, as we have in our modern societies, a right to administer justice to the citizens; it could strike when one was not guilty, and simply for its own interest”. He added that “There was nothing independent in man…His fortune was always at the disposal of the state. If the city had need of money, it could order the women to deliver up their jewels, the creditors to give up their claims and the owners of olive trees to turn over gratuitously the oil which they had made”.

In the introduction to the book Fustel de Coulagnes says that the infatuation of many thinkers with the collective liberties of the ancients has created confusion and an obstacle to the progress of individual liberties among modern men: “Having imperfectly observed the institutions of the ancient city, men have dreamed of reviving them among us. They have deceived themselves about the liberty of the ancients, and on this very account liberty among the moderns has been put in peril.”

The French historian died in 1889. Had he lived to see Communists, Fascists (“everything within the state, nothing outside the state, nothing against the state”), Nazis, Peronists, and the myriad of “modern” collectivistic parties, he would have said: I warned you about that!

By the way, if for a moment we do not take into account the slave’s wishes, which did not count at the time, we modern people tend to think that Achilles case was better, that he was unfairly treated. But we must not forget that Achilles himself recognizes that Agamemnon has a point. Achilles says: “I shall fight neither you nor any man about this girl, for those that take were those also that gave”. In our own modern times, many a receiver of government’s handouts must often see the truth in Achilles words.

The justice of the ancients compared with that of the moderns

Modern people do not depend for their subsistence on any distribution made of common property or of the spoils of war. Of course there is the exception of welfare recipients; nevertheless we can say that contracts for business or for work–and not distribution by some authority– is the characteristically modern way of earning a living.

In modern nations wealth does not come –as it did thousands of years ago– mainly from the possession of land. And even land is no longer possessed according to rank or military services paid to some chief. Land changes hands as any other good: by mutual agreement (Hitler found that very objectionable in Mein Kampf). Moreover, although commerce and industry have always played a role, today they are the main sources of wealth (Hitler regretted that too). Transactions are regulated by contracts so there is no room for anyone to place himself in the role of a distributor of the profits.

I doubt whether we modern people have fully realized what these changes mean for our notion of justice.

I think that there is a parallel between the historic changes that took place more than two centuries ago concerning the notions of liberty and of justice. In his remarkable essay The liberty of the Ancients compared with that of the Moderns, Benjamin Constant said that many of his contemporaries had not realized that liberty meant something different in ancient city states and in the XIXth century. For the modern man liberty means the right to follow his own way of life, to choose his own line of work, to use and dispose of his property, to choose his religion (or choose none), to travel within and outside the country, to speak his mind –to do all that without having to depend on the opinion of any authority.

The ancients knew a very different kind of liberty. Constant wrote: the ancients carried out collectively but directly many of the functions of government. They debated and made decisions about war and peace; common citizens passed judgments, and imposed even capital punishment; they voted laws. On the other hand, all of them were subject to the collective will. In Greece, anyone could be expelled from the community by ostracism. In Rome, the censors had a right (and a duty) to intrude in anyone’s personal life. Thus, the ancients combined collective freedom with the complete subjection of the individual to the authority of the group.

Constant traced these differences back to the conditions of life that prevailed in ancient city-states and in modern nations. Here I must direct the reader to his enlightening analysis. What I want to point out now is this: much as liberty changed, so did justice. Nations that no longer live from the products of a land possessed according to rank and tilled by slaves, men who earn their own living without ever dreaming of the part they might receive as property taken from enemies, must have a notion of justice that is different from that which belonged to an age when these conditions prevailed.

Constant wrote that many of the misfortunes and horrors of the French revolution came from a misguided attempt to force upon people the liberty of the ancients, when in fact they wanted and needed the liberty of the moderns. The French ideologues had been inspired by their reading of Greek and Roman authors. They made vehement speeches about the collective will of the citizens without giving a thought to the differences between ancient Greece and modern nations.

Aren’t we doing the same with the notion of justice? Aren’t we still using notions of justice that no longer make sense? Aren’t we merely repeating opinions received from the ancients but without confronting them with the conditions of our own age?

Let’s distribute your property among us

We read all the time alarming statistics: the upper 10 per cent of the country’s population gets a disproportionate share of the “national product”. Worse still: we are told that a few developed nations in Europe together with the United States, Canada, and Japan get a disproportionate share of the world’s production of iron, energy, computers, mobile phones, everything! Isn’t that unfair? In view of it, is it not plain that the government should step in and distribute the product of the whole nation more fairly among its inhabitants? Does it not apply also to the entire world’s population? Is it not a scandal that a Swiss receives a bigger slice than a Somali?

Certainly, all that would make sense if we were talking of the distribution of things held in common according to ancient custom, or land taken from an enemy we have defeated. But it is entirely wrong that we modern people go on reasoning as if it were a natural thought that there is a common pool of “wealth” out there that simply has to be seized and distributed. That made some sense with land and slaves, but not with industry and commerce. By the way, this difference also explains why modern revolutionaries so often see that the wealth they have taken from their class enemies melts away in their hands. You can conquer land; you cannot conquer a modern enterprise. Many ideologues still don’t understand the difference.

After the roman legions had conquered a city, the land around it still produced crops. The gold and the slaves taken to Rome as booty from war actually increased the wealth of the Roman citizen. But modern revolutionaries have found time and again that when they confiscate finance and commerce, they destroy it. Popular tribunals can in a couple of hours send thousands of entrepreneurs to prison, but then they will find that the thousands of companies they seize do not increase the wealth of anyone (except perhaps a dozen commissars). They will have nothing to distribute to the millions of followers who still wait eagerly for the spoils. In the end, they will receive their fair share of poverty.

When Margaret Thatcher remarked that “the problem with Socialism is that eventually you ran out of other people’s money” she showed, not only her wit, but also that she understood the consequences of the changes in the way modern people produce wealth –something that has yet to penetrate the head of many an Oxford’s professor.

Justifications for distribution

I have said that too many ideologues and their followers eager for a share of other people’s money have not considered sufficiently the differences between ancient times and modern times. They pretend to be modern when in fact they have yet to understand the modern world. And that is confirmed, not only by the poverty they have brought about wherever they have been allowed to govern, but by the contempt these ideologues have shown for history and experience in formulating theories that justify distribution of other people’s wealth.

In all cases, the trick consists in presenting the wealth they want to distribute as an undifferentiated common pool. Marx tried it in the XIXth century with his elaborate theory of the work-value –that was perhaps the best attempt ever made, although it had been thoroughly refuted by Böhm-Bawerk before the XIXth century came to a close.

John Rawls tried a different justification in the XXth century but he mostly rested on ex cathedra assertions to convince his readers that skills and ingenuity must be treated as a common pool unfairly distributed among human beings. Skilled and clever people must be made to atone for that.

In the XXIth century, Barak Obama justifies higher taxes by telling Americans “you didn’t build that”. The infamous phrase is a good summary of the main argument in the book The Myth of Ownership by professors Murphy and Nagel. I have criticized that book in seven articles.

Though presented as philosophical advances over older ideas, these theories still rest on primitive notions that are out of touch with the modern world. None of those who promote a greater distribution by the coercive apparatus of the government seem to have grasped the differences between the justice of the ancient and the justice of the moderns