Justice and Egalitarianism

Formal and Substantive Equality in Some Recent Theories of Justice

Michael Quinn

• Publisher: Taylor & Francis
• Year: 2019
• eBook ISBN: 9781000704877
• Edition: 1
• Topic: Historia
• Subtopic: Historia del mundo

First published in 1991. This study is a critical survey of substantive egalitarian theories of justice, that is to say, various theories containing principles for the distribution of social resources which, it is argued, base themselves on a fundamental principle of equality. This title will be of interest to students of politics and philosophy.

PART ONE : JUSTICE AND EQUALITY

Chapter One : Formal Justice and Formal Equality

(1) Introduction

The subject of this thesis is not justice per se, but egalitarian conceptions of justice. ‘Doctrines of egalitarian justice hold that all men have certain basic equal rights’.¹ By this yardstick, by no means all conceptions of justice are egalitarian, yet there exists a widespread belief that justice and equality are connected concepts. The same belief existed in Athens in the fourth century B.C., and the coincidence is not unconnected with the fact that Athens, like present day Britain, was in its particular manner a democracy. When basic political rights are distributed equally, the connection between justice and equality becomes a natural one to make, as a critic of democracy like Aristotle is only too aware.² The contention of the immediately ensuing argument is that no substantive connection between justice and equality is implied in the structure of justice itself, and that further, there does exist a necessary and logical connection between the structure of justice and equality, but that the equality spoken of, arising as it does directly out of a formal structure, is itself equally formal, and cannot act as a bridge between formal justice and substantive egalitarianism.

(2) Justice: Form and Substance

Justice is done when no individual has legitimate cause for complaint. Such a construction looks, indeed is, tautological, averring only that justice is done whenever justice is done. However, the idea of complaint on grounds of injustice may serve to illustrate the distinction between formal and substantive justice.

When an individual or a group complains of the injustice of a situation or a form of treatment, the injustice alleged is traceable to one of two sources. In the first place it may be alleged that the rules of justice, while unimpeachable in themselves, have been broken, ignored or administered in a biased or inconsistent manner. Given that the nature and content of the rules of justice are wholly accepted, justice consists precisely in the consistent administration of those rules. Unjust treatment involves the arbitrary or partial administration of accepted rules. For instance, in the United States after the civil war, the law guaranteed the equal rights of all adult male citizens to the exercise of the franchise. In the administration of the ballot in the States of the reconstructed South, various measures, ranging from the introduction of literacy tests, the difficulty of which was related to the would-be voter’s skin colour, to physical intimidation and violence, were employed to prevent negroes from voting. The injustice involved here concerns the procedural departure from an established rule. Certainly, the motive for such departure lay in the Southern whites’ opposition to the rule itself, but once the rule was established the injustice lay in its perverse administration.

In the second place, injustice is alleged despite the fact that the existing rules are applied without favour and in the strictest accordance with the letter of the law. The object of criticism in this case is the content of the rule itself. Towards the close of the last century the principle of universal adult male suffrage was attacked by movements agitating for the extension of the franchise to women. The situation of the suffragettes differed from that of negroes in the reconstructed South in that, according to the law, the latter possessed what the former desired. For the women’s movement, the injustice lay not in the unfair administration of the rule, but rested on the assertion that the rule itself was a bad rule.

If the elements which make up a theory of justice are rules, the persons whose relations are governed by the rules, and the arguments and principles which ground the rules, the structure of formal justice is blind as to the last of the three elements. Formal justice consists in the consistent application of existing rules. Substantive theories of justice are concerned precisely with the reasons which ground the rules.

(3) Formal Justice and Equality

It is the substantive content of a rule itself which defines the categories of persons between whom the rule differentiates. It is the substantive content of the rule which defines relevant difference, and thereby establishes categories of equals and unequals under the rule. As Oppenheim writes:

… every conceivable rule of distribution turns out to be egalitarian in this sense, since every one allocates the same benefit or burden to all who have the same specified characteristic, but not to those who are unequal in that respect.³

The application of any rule to persons requires differentiation between persons according to the instructions contained in the rule. In Conan Doyle’s ‘The Red Headed League’, a well paid job is advertised, the position being open to the possessors of naturally red hair. In this case there exists a rule: Only people with red hair are eligible for the position; and a criterion of differentiation: The possession of red hair. These enable the administrator of the rule to judge applicants. Applicants are divided by the rule into two classes, redheaded and non-red-headed; while within each class, applicants are defined by the rule as equals. Red-headed men are, according to the basic rule, equally eligible, while all others are excluded from consideration without favour. Between the two classes is created an inequality, in that red-heads may apply for the job, while non-redheads are disbarred from consideration.

Any discernible difference between persons may be elevated, by its embodiment in a rule, into an inequality of entitlement. It is the nature of rules to identify similar cases and non-similar cases. Once the criterion of similarity is established, the rule itself creates categories of equals according to the criterion, and an inequality between different categories in the same manner. Persons falling in different categories are to be treated differentially, while within any one category, treatment is to be ‘equal’, which means here ‘ the same’, because cases defined by the rule as falling within the same category are defined as equal by the rule itself. It is the content of the rule which defines equalities by reference to whatever information the rule contains. Rules pick out certain characteristics of persons and situations and direct the attention of actors under the rule to precisely those characteristics, regardless of other differences or similarities. Rules delineate which similarities or differences are relevant, and in identifying relevantly similar cases, the rule establishes an equality between similar cases, and an inequality between disparate cases. Similarity is identified by the descriptive content of the rule, and relevance by the fact that the rule exists as a prescription. The function of rules is to elucidate what similarities or differences are important, having regard to whatever purposes for which the rule was made. Since relevant similarities when enshrined in rules define equalities and inequalities, rules of necessity produce equalities and inequalities.

To borrow an example from Benn, there is in force in the United Kingdom a rule which demarcates every person over the age of eighteen (with certain exceptions: Peers of the realm, the registered insane, convicted felons) as being members of a single category for the purposes of electing public representative bodies.⁴ The rule makes no claim that all U.K. citizens over the age of eighteen are identical; it certainly does not claim that they are equal, in the sense that they will cast their vote with equal percipience, after equally deep reflection upon the issues involved. The rule advances a criterion for allowing persons to vote, a criterion which differentiates between persons largely according to whether they have attained an arbitrarily decided majority. All persons who attain that majority, barring the exceptions mentioned above, are regarded as equals by the rule. The rule simply states that with regard to voting rights, only age matters. It has nothing to say about myriad differences between adults, because, by reference to the rule itself, such differences are held to be irrelevant.

Rules themselves make explicit and relevant differences between persons which without the rule may never have been important, or even consciously recognised. A rule can transform any difference into a normative inequality, because every conceivable rule creates an intra group equality, while simultaneously creating an inter group inequality. And, to sum up, equality here is nothing substantive, but merely a logical function of rules, which equalise as they differentiate. Equality and inequality in this sense are the product of the structure of rules, not the reasons for the adoption of certain rules, rather than certain others. All theories of justice are formally egalitarian none necessarily substantively so.

(4) Formal Equality and Substantive Justice

Now all men believe that justice means equality in some sense … they hold that justice is some entity which is relative to persons, and that equality must be equal for equals. The question we must keep in mind is, equality or inequality in what sort of thing? For this is a problem, and one for which we need political philosophy.⁵

The hallmark of a substantive egalitarian conception of justice is its ascription of an equal value to human agents. The implications of such equal valuing are neither obvious nor necessarily determinate, but without some such ascription, there is no substantive egalitarianism. The necessary connection between formal justice and formal equality outlined above has contributed to a considerable muddying of the waters with regard to discussion of substantive conceptions of justice. Since rules produce equalities, by reference to their content, the terminology of equality and inequality has pervaded discussions of justice, not always in a manner which facilitates understanding, Aristotle’s discussion is something of a case in point.

The imperative of justice, for Aristotle, is to treat equals equally, and unequals unequally. Since every rule of necessity achieves exactly that end in its own terms, in so far as every rule defines who are to be treated as equals, and who as unequals, such an approach appears formal and vacuous. Kelsen indeed finds little to Aristotelian justice beyond a formal statement of a highly formal criterion. Since the content of the rule instructs persons in what constitutes equality, Aristotle seems merely to advocate uncritical rule-following, or adherence to ‘…the logical law of contradiction with reference to the application of a general norm of positive law to particular cases. ’⁶. However, Aristotle is plainly aware that ‘ the question we must keep in mind is, equality or inequality in what sort of thing. ‘ It is clear that for Aristotle the important task is the substantive one of establishing which particular inequalities are to count as relevant to a discussion of justice; or rather, which differences between persons are to be defined as inequalities by the rules of justice. Indeed, in his theory of the ideal state, Aristotle has a very clear cut view of what constitutes a morally relevant difference. Far from presenting simply a model of formal justice, Aristotle goes so far as to ridicule the bare formula ‘Equal for equals’ for its total indeterminacy:

It is possible to argue that superiority in any good whatever justifies unequal distribution of offices …. But surely, if that be granted, we shall have to allow that superiority in height of complexion or any other good thing will confer an advantage in political rights. Is not the fallacy here pretty obvious?⁷

Aristotelian justice is far from vacuous, and rests upon a substantive theory which is hardly agnostic about what justice demands in action. It will be argued that that theory itself rests upon a premise which is certainly inegalitarian, which asserts that human agents are by nature of unequal value. Aristotle is indeed at pains to attack the substantive democratic connection between justice and equality: ‘Thus it is thought that justice is equality; and so it is, but not for all persons, only for those that are equal. ’⁸ Far from contenting himself with a statement of formal justice, Aristotle advances a substantive theory which conflicts directly with the received opinions prevailing in the society in which he was writing.

‘Now all men believe that justice means equality in some sense. ’ It is characteristic of Aristotle to begin a discussion with a statement of the prevailing received opinion, and to retain some aspect of that opinion in his final conclusion. In the discussion of justice such an approach is particularly helpful in view of the context in which Aristotle was writing. The good which forms the distribuendum in discussion of political justice for Aristotle, as for Plato and the Sophists, is the right of citizenship, with its concomitant access to political office. In Athens, Aristotle is faced with a democratic audience, who believe that this right should be distributed equally, at least within the category of free men. Aristotle is thus confronted with a prevailing attitude about justice which is substantively egalitarian in nature, and wishes to argue that democracy, a substantively egalitarian principle, is a bad thing. Aristotle, democrats and oligarchs alike perceive a connection between justice and equality, while drawing conflicting substantive conclusions according to the particular criterion of differentiation which they uphold. Aristotle rejects both the democratic criterion, ‘ free birth’, and the oligarchic criterion, ‘ wealth’, and proposes his own, ‘ virtue’. The equals in Aristotle’s theory are those endowed with virtue, the unequals are those lacking in virtue. In terms of ideal theory, the virtuous are entitled to political honours since only they can direct the state in accordance with the end for which it exists, namely the living of the good life by virtuous men.

For Aristotle, the crucial differentiating factor between persons was the capacity to partake in the good life, to acquire the intellectual and ethical virtues, and thereby qualify to quit the realm of economic necessity for the political arena of self-determined action. The acquisition of intellectual virtues depended upon the possession of, and the leisure to cultivate, uncommon intelligence. The practice of ethical virtues required, in certain cases, such as liberality, the possession for disposal of a surplus of material goods. Finally, the whole possibility of freedom depended upon the liberation from manual labour. Given these parameters, it should come as no surprise to discover that Aristotelian justice rested upon a massive natural inequality between those born to a life of virtue, and those almost sub-human thousands, not properly citizens, but necessary elements of the good state, who were simply not fated to share in human perfection. Leaving aside his defence of ‘natural’ slavery, it remains the case that Aristotle asserts a natural inequality between free men: ‘ It so happens that some can get a share of happiness, while others can get little or none.’⁹

The difference between persons which justifies unequal access to the centrally important realm of political life is an inequality in the natural capacity to acquire virtue, a natural inequality in the capacity which marks men out from animals. The purpose of men is to live the good life, filled with virtue. Only a minority of men can aspire to this end. Only the rule of the virtuous can fulfil the end of the state. In the best state such men will be secured political power, and protected from interference in their endeavours by those not endowed with the love of virtue, those not informed as to the proper end of human life, and the proper priority between possible ends of human action.

A democratic, egalitar...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Dedication
• Preface
• Original Half Title
• Table of Contents
• Part One: Justice and Equality
• Part Two: Substantive Egalitarianism
• Conclusion Equality of Value and Equality in Distribution
• Bibliography