There’s a common argument that libertarians make against the idea of social or distributive justice.  The argument, made by both Robert Nozick and Friedrich Hayek, purports to show not merely that the idea of distributive justice advocated by left-liberals like John Rawls is immoral, but that it is conceptually confused.  Asking whether the distribution of wealth in a society is just is like asking whether the color blue is heavy, or whether a stone is moral.

I don’t think this argument is entirely without merit, but I also don’t think it shows that libertarians should reject the idea of social justice.  In this post, I’ll set out the argument and explain how it succeeds, and how it falls short.

Here’s what Nozick has to say about the concept of distributive justice:

The term ‘distributive justice’ is not a neutral one.  Hearing the term ‘distribution,’ most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things.  Into this process of distributing shares some error may have crept… [But] [t]here is no central distribution, no person or group entitled to control all the resources, jointly deciding how they are to be doled out.  What each person gets, he gets from others who give to him in exchange for something, or as a gift…There is no more a distributing or distribution of shares than there is a distribution of mates in a society in which persons choose whom they shall marry.

Anarchy, State, and Utopia, pp. 149-150.

Friedrich Hayek is even harder on the idea:

I must turn now against an abuse of the word [justice] which threatens to destroy the conception of law which made it the safeguard of individual freedom…‘Social’ justice (or sometimes ‘economic’ justice) came to be regarded as an attribute by which the ‘actions’ of society, or the ‘treatment’ of individuals and groups by society, ought to possess.  As primitive thinking usually does when first noticing some regular processes, the results of the spontaneous ordering of the market were interpreted as if some thinking being deliberately directed them, or as if the particular benefits or harm different persons derived from them were determined by deliberate acts of will, and could therefore be guided by moral rules…It is a sign of the immaturity of our minds…

Law, Legislation, and Liberty, volume 2: The Mirage of Social Justice, pp. 62-63.

See the respective texts for the full argument.  Basically, though, I think it can be reconstructed as follows:

  1. A distribution of holdings is only unjust if it results from the unjust (deliberate) actions of individuals.
  2. There is no central distributor responsible for the distribution of holdings in a free society.
  3. Therefore, the distribution of holdings in society cannot be unjust.
Of course, stated this way, the argument doesn’t quite work.  After all, the distribution oh holdings in a society might be the result of the unjust actions of someone other than a central distributor.  Nozick, as I read him, fills in this gap with a secondary argument.
  1. The distribution of holdings in a society arises from the aggregation of all our ordinary decisions about what talents to develop, where to live, what to purchase, and so on.
  2. Except for special cases specifically identified as unjust by a theory of justice in transfer (e.g. theft, fraud), these ordinary decisions are obviously not unjust.
  3. Therefore, the distribution that arises from them cannot be unjust.

To summarize, for the distribution of holdings to be unjust it would have to be the result either of (a) the unjust distribution of a central distributor, or (b) the unjust actions of dispersed individuals.  (a) won’t work because the central distributor doesn’t exist, and (b) won’t work because the ordinary actions of individuals that generate the overall distribution of holdings are obviously not unjust.1  Hence the distribution of holdings cannot possibly be unjust.

There is, I think, an important insight in this reasoning.  Inequalities that are the product of spontaneous orders are different, morally speaking, from inequalities that are produced deliberately by a central distributor.  If our government assigned mates to everyone in the country except 10% of people, those among the unfortunate 10% would have reason to feel that they were not treated with equal respect as citizens.  The same would not be true, I take it, if mates were selected as they are now – by mutual consent.  Someone who can’t find anyone else who wants to marry them might feel justly disappointed, and perhaps even disrespected by particular other persons.  But even if there is a kind of disrespect involved, it is a disrespect that is qualitatively different from the kind of insult to public standing involved in the first scenario.2

There is, nevertheless, a flaw in the argument.  That flaw appears in the first premise of the second argument.  Yes, the distribution of holdings in a free society is determined partly by the countless ordinary decisions of innumerable individuals.  But it is also a product of the social and legal rules that govern and structure those decisions: rules that determine the contours of property rights and contracts, that determine whether there will be a social safety net and what form it will take, that determine the extent, limit, and uses of taxation, and so on.  These rules might be just or they might be unjust.  If they are unjust, we could (as Judith Shklar pointed out) intervene to change them, even if we did not deliberately create them.

Now, one way – not the only way – of determining which rules are just is to think about the effects that different sets of rules will likely have on the pattern of distributions within a society.  We might not know how any particular individual will fare under regime X vs. regime Y, but we can be reasonably confident about certain “pattern predictions”: that low-skilled workers will suffer under a regime that includes robust minimum wages, that fewer people will receive medical care if it is not subsided by tax revenue, and so on.  And we can use this information in constructing a theory of social justice.  We can have a theory of social justice, in other words, that holds that a given set of legal rules is just only if its expected effects on certain social groups meets a certain standard.  We could say, like Rawls, that the legal rules (or basic structure more generally) must work to the maximum advantage of the least well-off.  Or we could say something else – that it must make everyone better off than they would be in the state of nature, or than they would be under a situation in which all resources were distributed equally, etc.

Which of these standards is the right one to apply to the evaluation of social and legal rules is a question that can be resolved only by substantive philosophical debate.  My point here is not to defend any particular standard, though I suspect that any reasonable standard will have at least a prioritarian or sufficientarian element to it.  I do not even claim to have given an argument here that any such standard ought, in the final analysis, to play a role in evaluating the justice of legal and social rules.  My goal here is a more limited one: to show that such a standard can capture much of what is good about the idea of social justice without falling into the errors that Hayek and Nozick rightly criticize.  What I am arguing is that we needn’t suppose that stuff is doled out by a central distributor to believe that justice has something to say about the rules we set up to govern how stuff is doled out by dispersed economic agents.  And we needn’t denigrate the importance of individual liberty and spontaneous order to believe that justice requires that legal and social rules be designed so that they can be reasonably expected to work to the advantage of certain social groups – perhaps especially the poor and vulnerable.

Understood in this way, there is nothing inherently un-libertarian in the idea of social justice.  What I have defended here is a moral standard that tells us when a set of legal rules is morally justified and when it is not, on the basis of the effects that set of legal rules can be expected to have on various social groups.  But even if the standard says “a set of legal rules is just only if it maximizes the well-being of the least well-off,” this doesn’t directly entail that government has to engage in redistributive taxation, finance public education, or any of that.  Whether it should do so depends on whether doing so actually, in fact, maximizes the position of the least well-off.  A theory of social justice, as I’ve described it, tells us only what ends a set of legal rules ought to try to achieve.  It is therefore dependent on the insights of economics and other social sciences to tell us how to go about achieving those ends.

And, actually, if you read them closely, it looks an awful lot like both Hayek and Nozick do endorse a theory of social justice of the sort I have described.  Remember, Nozick’s endorsement of free markets and private property is not only qualified by a modified version of the Lockean Proviso, it partially depends for its justification on that Proviso.  For Nozick, roughly, a libertarian legal system that allows for permanent bequeathable property is justified only to the extent that that system makes no one worse off than they would have been in the state of nature.3  If private property and free markets really did lead to the oppression of the poor and vulnerable, then private property and free markets would not, for Nozick, be morally justifiable.  This is why he finds it necessary (on page 177) to appeal to standard free-market economic reasoning to show that they do not.

Hayek’s case is more complicated, and I fear that I will not be able to do it justice here.  But readers who believe that Hayek completely dismissed the idea of social justice (and they have ample textual support for this belief!), should remember Hayek’s remark about Rawls’ Theory of Justice that the difference between Rawls’ account of justice and his own are “more verbal than substantive” and that he and Rawls “agree on what is to me the essential point.”  Perhaps, as Jeremy Waldron suggests, Hayek was simply confused in his reading of Rawls.  But I think we should not be so quick to write off Hayek as a sloppy reader, especially when a more charitable interpretation is readily available.John Tomasi has done on this topic.  You can get a glimpse of it here.  But you’ll have to wait for the much fuller version presented in chapter 5 of his Free Market Fairness, due out in 2012 from Princeton University Press.

 

Footnotes:

  1. This is an undefended intuition in Nozick, but it is a pretty unproblematic one in my opinion.  It is also an intuition that plays a key role in the recently-much-discussed Wilt Chamberlain argument.  That argument draws much of its force from the idea that it is obviously not unjust for individuals to give Wilt Chamberlain a little bit of their (justly held) money to watch him play.  In the same way, there would be something odd about a theory of justice that condemned ordinary cases of giving money to one’s children, receiving wages from one’s labor, and so on.
  2. David Schmidtz draws out the connection between inequality and respect in his “Equal Respect and Equal Shares,” a modified version of which appears in his Elements of Justice.
  3. Nozick alternates between applying the Lockean Proviso to particular acts of appropriation and applying it to the general system that licenses particular acts of appropriation.  For an example of the latter use, see p. 177 of ASU.
  4. Some illuminating comments, and a bit of backpeddling on Hayek’s part, can be found in this excerpt from a conversation between Hayek and James Buchanan.  Gosh I wish this clip was longer!
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  • Kevin Vallier

    A great post, and I agree with a lot of it. Here’s how a Nozickian or Hayekian could reply, though. Yes, it is true that the set of rules regulating the basic structure of society (say, the rules of property) are the object of social evaluation and social change. They’re not “natural” or automatic and their justification rests on normative criteria. But typically a claim of justice is supposed to ground indignation, responsibility and blame. The problem with the idea of social justice as a complaint against our background rules is that there is no identifiable agent who enforces those rules. Now some philosophers will argue that that agent is the state, but Nozick and Hayek will argue that many of these rules are not only outside the state’s purview but are required for concentrated political authority to exist at all. Thus, even the rules themselves are partly the result of an emergent, unintentional order. And you can’t have a complaint of indignation against such a process. You cannot blame such a process. You can argue that it should be changed, to be sure, but to call such complaints  complaints of justice is to abuse the term.

    In the end, the interesting point of the disagreement may have been lost, as we are talking about the applicability of a particular word (justice), but I still think something is at stake. Anyone can argue that the background rules should be changed due to evaluative criteria. Those criteria provide reasons. But an additional criteria is the alleviation or dissipation of our reactive attitudes, like our resentment. Alleviating those attitudes may be crucial for social stability, stability for the right reasons, etc. Thus, if there is a valid claim of injustice, it may provide further and perhaps more pressing reasons to alter the basic structure.

    In the end, I think we can hold those who are publicly recognized as charged with enforcing the rules and shepherding their evolution responsible for social injustice. It is the agents of the moral and political order whose action must change when the background rules fail to meet the relevant evaluative criteria. So I agree with your basic assessment. But I hope to have sketched a plausible next step of exchanges in the argument.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Thanks, Kevin, that’s a really interesting line of thought.  I wonder, do you think it counts specifically against claims of “social justice” as those are made by people on the left?  Or does it count against any claim about the injustice of legal institutions?  

      I assume that even philosophers who are hostile to the idea of social justice will nevertheless be open to the idea that certain policies and institutions can be unjust: e.g. the institution of slavery or a specific policy like the fugitive slave act.  Do you think claims of this sort are more compatible with the link between justice and reactive attitudes than claims about social justice?  If so, why?

      • Kevin Vallier

        I think claims of that sort are compatible with the link between justice and the reactive attitudes because the attitudes can be sustained when people recognize the harm or bad caused by the law of institution in question if those who created or at least enforce the rules decline to alter it. I do not think that an injustice has been committed by a spontaneous order formation of a rule, but rather by the quasi-deliberate social recognition and enforcement of the rules. Agency lies behind injustice. Rules are unjust derivatively. Consider an analogy: I trespass onto your property without realizing that it is yours and I could not have known better. Then suppose I burn down part of your forest to clear it for livestock. If I later discover that the forest was yours according to our shared social morality I presumably owe you compensation. I have accidentally violated your rights but committed no injustice, despite having caused you harm. It seems strange to say that an injustice has occurred. Instead, an injustice would occur if I refused to compensate you appropriately. Do your intuitions diverge here?

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          I’m not sure I have a strong intuition regarding the proper usage of “injustice” in that case.  I agree about the substance: you ought not feel resentment at me for my accidental (non-negligent) trespass, but you ought if I refuse to compensate you.  But I often think of the term justice as referring in a Millian way to enforceable claims, so I don’t feel odd about calling your trespass itself an injustice, since it generates an enforceable claim on my part against you.  
          So, I think I agree with the important stuff you’ve said here.  But aren’t the cases of “social injustice” and “plain vanilla injustice” still parallel?  If we have social institutions predictably generate unacceptable inequalities,  isn’t this just like social institutions that allow humans to own other humans in that both might have their origins in spontaneous practice, but are “quasi-deliberately” socially recognized and enforced?  So either the reactive attitudes condemn both, or they condemn neither, right?

    • http://francisfrog.tumblr.com/ Francis Frog

      I never been a big fan of the “justice” part of that term as it carries a strong whiff of victimhood. If social justice is something to be attained then social injustice must be the norm. Which implies someone is getting screwed. And as you say, if economic distribution is spontaneous then who can you really blame? Although I still think the focus on state and institutional actors is problematic. I tend to view economic ordering as spontaneous the way all social ordering is spontaneous. Politics was invented to support  this spontaneous social ordering, but it doesn’t create it, does it?

  • Anonymous

    If the current distribution of wealth has resulted, at least in part, from the unjust schemes of the past (Anglo-american property law descends in a fairly direct line from feudal arrangements after all), then the current distribution is unjust.  Altering the rules to make them just would not change this unjust distribution of goods (or would render this distribution just, but would require an extended period of adjustment as things sifted out).   So, assuming redistribution is inevitably unjust, it seems like we are compelled to choose between the lesser of two evils;  to either acquiesce to unjust distribution for some period of time or to engage in unjust redistribution.

    • Anonymous

      Excellent point. 

    • Shivank

      Bullshit point. Both the perpetrators and the victims of those crimes are no longer alive. The fortunes most people have today were built by their own labor. Wealth redistribution as a system is obviously unjust. There is a principle in law: innocent until proven guilty. You cannot start recklessly assaulting people because you were drunk last night and you don’t know who assaulted you. That wouldn’t be justice.

  • Fernando Teson

    Nice post.
    I think it might help to know what someone means when he says that a distribution X is unjust. Does he mean that the gap between the rich and the poor is too wide? Does he mean that the poor don’t have enough (regardless of the gap)? Does he mean (obscurely) that the distribution infringes upon some other principle of justice, such as equal respect of persons?  
    If I understand you correctly, Matt, it makes sense to criticize the rules under which people make transfers, on the basis of the outcomes that, given what we know, those transfers would yield. But there are difficulties to notice here, though. The first is that the social justice critic can no longer criticize a distribution as unjust, only the rules under which those distributions emerged. The second is the empirical uncertainty about the causal connection between the rules R and the (just or unjust) outcomes.  We can confidently say that a rule that prohibits political dissent is unjust. It is much harder to say, based on predicted outcomes, that the rules of property and contract are unjust, given that the outcomes under those rules are virtually impossible to predict (if I recall correctly, both Nozick and Hayek make this point.)

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Hey Fernando, thanks for your comments.
      I think a defender of social justice could many any of those three things, though I think that some of them are more defensible on their merits than others.I’m not entirely sure what to say about your first point.  It seems that the critic could say that a distribution is unjust by virtue of its having been produced by an unjust set of rules.  And, of course, the critic could also call a distribution unjust when it is produced by a deviation from a just set of rules.  But I’m not totally sure that I’m seeing the force of your objection.  Are these responses sufficient to allay your concern?
      Your second point is well taken, though I suspect we libertarians ought to be careful not to cherry-pick our appeals to ignorance.  We’re generally happy to say that we know that increases in the minimum wage will lead to unemployment.  If pattern predictions are OK there, they’re going to be OK elsewhere too, and sometimes in ways that cut against our preferred ideology.

      • Fernando Teson

        Let’s see. You write:

        But
        [a distribution] is also a product of the social and legal rules that govern
        and structure those decisions: rules that determine the contours of property
        rights and contracts, that determine whether there will be a social safety net
        and what form it will take, that determine the extent, limit, and uses of
        taxation, and so on.  These rules might
        be just or they might be unjust.  If they
        are unjust, we could intervene to change them, even if we did not deliberately
        create them.

        The question that I clumsily tried to
        ask is this: is a distribution unjust because the rules are unjust? Or are the
        rules unjust because they yield an unjust distribution?  For Nozick, the justified rules are the rules
        in acquisition.  These rules, however,
        must be “pure”; by this I mean that they should be free from irrelevant
        additions or qualifications.  The rule
        “everyone may acquire property except persons of Asian descent” (once in force
        in CA and WA) is unjust, and for that reason the resulting outcomes will be
        unjust.  So a lot of obvious injustice is
        weeded out by the purity of the Nozickian formulation. What is then the social
        justice critic’s complaint against the “pure” rules of acquisition? In what
        sense are they unjust? Something like this, I think. We know that under the Nozickian rules of acquisition many folks will
        end up with a level of resources that infringes a threshold established by an
        external principle of justice, and that is
        unjust. But, as Nozick notes, all the work here is done by the external
        principle of justice, by the distributional pattern (whatever it is) that the
        critic considers just. The Nozickian rules of acquisition are unjust because
        they will necessarily yield an unjust outcome. Here I think that the libertarian
        reply to this line of argument must rest on the moral value of liberty. Since
        the rules of acquisition are pure, that is, free from congenital blight, the resulting
        outcomes reflect free and voluntary transactions; therefore, any coercive intervention
        will upset freedom. The social justice critic thinks that patterned justice
        trumps freedom and justifies coercion; the libertarian does not.

        On the question of prediction. Of
        course we shouldn’t claim ignorance selectively.  But there is an interesting perplexity here.  We are more empirically certain about certain
        rules than about others. To go back to my example: we can confidently predict
        that the rule that prohibits Asians from acquiring property will result in
        property-less Asians. Similarly, we can predict more or less confidently that a
        protectionist measure of agricultural products will result in the enrichment of
        local farmers at the expense of everyone else. But consider the rules of acquisition,
        that is, the “pure” rules of acquisition and transmission of property. I think
        it is much harder to predict distributional outcomes  just from these rules. Why
        is that? I’m not sure, but I suspect it has to do with the neutrality of these
        rules, the fact that they do not mention individuals or groups. They are
        distributionally indifferent. Again, the social justice critic will say that we
        can predict that some (whoever they
        are) will end up below an unacceptable threshold, and for that reason we should
        amend the rules.

        Finally, the social justice critic
        has a familiar objection to the rules of acquisition. He can claim that the
        starting point of persons in society is arbitrary: some folks started with no
        property, were born in poverty, etc., so it is unfair to adhere to the
        “pure” rules of property because folks with little or nothing to
        trade will be disadvantaged through no fault of their own, even if the
        resulting outcome was the result of their voluntary decisions. Let’s concede
        the point.  It only supports a
        one-time distribution of resources, for example in equal shares. After that, we must return
        to the pure rules of acquisition, and then the
        resulting distribution will be just, because this objection does not ground
        intervention on an external pattern of justice but on the fact that the initial
        conditions were unfair.

      • Fernando Teson

        Let’s
        see. You write:

        But
        [a distribution] is also a product of the social and legal rules that govern
        and structure those decisions: rules that determine the contours of property
        rights and contracts, that determine whether there will be a social safety net
        and what form it will take, that determine the extent, limit, and uses of
        taxation, and so on.  These rules might
        be just or they might be unjust.  If they
        are unjust, we could intervene to change them, even if we did not deliberately
        create them.

        The
        question that I clumsily tried to ask is this: is a distribution unjust because
        the rules are unjust? Or are the rules unjust because they yield an unjust
        distribution?  For Nozick, the justified
        rules are the rules in acquisition. 
        These rules, however, must be “pure”; by this I mean that they should be
        free from irrelevant additions or qualifications.  The rule “everyone may acquire property
        except persons of Asian descent” (once in force in CA and WA) is unjust, and
        for that reason the resulting outcomes will be unjust.  So a lot of obvious injustice is weeded out
        by the purity of the Nozickian formulation. What is then the social justice
        critic’s complaint against the “pure” rules of acquisition? In what sense are
        they unjust? Something like this, I think. We know that under the Nozickian
        rules of acquisition many folks will end up with a level of resources that
        infringes a threshold established by an external principle of justice, and that
        is unjust. But, as Nozick notes, all the work here is done by the external
        principle of justice, by the distributional pattern (whatever it is) that the
        critic considers just. The Nozickian rules of acquisition are unjust because
        they will necessarily yield an unjust outcome. Here I think that the
        libertarian reply to this line of argument must rest on the moral value of
        liberty. Since the rules of acquisition are pure, that is, free from congenital
        blight, the resulting outcomes reflect free and voluntary transactions;
        therefore, any coercive intervention will upset freedom. The social justice
        critic thinks that patterned justice trumps freedom and justifies coercion; the
        libertarian does not.

        On
        the question of prediction. Of course we shouldn’t claim ignorance
        selectively.  But there is an interesting
        perplexity here.  We are more empirically
        certain about some rules than about others. To go back to my example: we can
        confidently predict that the rule that prohibits Asians from acquiring property
        will result in property-less Asians. Similarly, we can predict more or less
        confidently that a protectionist measure of agricultural products will result
        in the enrichment of local farmers at the expense of everyone else. But
        consider the rules of acquisition, that is, the “pure” rules of acquisition and
        transmission of property. I think it is much harder to predict distributional
        outcomes  just from these rules. The reason is that the rules are neutral; they do not mention individuals or groups. They are
        distributionally indifferent. Again, the social justice critic will say that we
        can predict that some (whoever they are) will end up below an unacceptable
        threshold, and for that reason we should amend the rules.

        Finally,
        the social justice critic has a familiar objection to the rules of acquisition.
        He can claim that the starting point of persons in society is arbitrary: some
        folks started with no property, were born in poverty, etc., so it is unfair to
        adhere to the “pure” rules of property because folks with little or
        nothing to trade will be disadvantaged through no fault of their own, even if
        the resulting outcome was the result of their voluntary decisions. Let’s
        concede the point.  It only supports a
        one-time distribution of resources, for example in equal shares; it does not support the standing power of the government to redistribute resources. After the one-time coercive redistribution we
        must return to the pure rules of acquisition, and then the resulting
        distribution will be just, because this objection does not ground intervention
        on an external pattern of justice but on the fact that the initial conditions
        were unfair.

        • http://profiles.google.com/entelechy77 Kurt Horner

          A few points about this discussion:

          If we assume that outcomes are “just” because the rules are, we can easily construct a counterexample. If property is permanent and theft impermissible and a person lost in the wilderness comes across a remote (but currently unoccupied) shelter, the rules state that the person should continue to suffer despite the fact that all sane human beings would go ahead and use the shelter anyway. In other words, we clearly don’t evaluate rules solely on the basis of their internal fairness and consistency.

          On the other hand, if the rules are “just” because of their outcomes, the view that pure rules would lead to injustice contradicts the concept of pure rules. If we’re evaluating rules based on their outcomes, then the pure rules by definition shouldn’t lead to unjust outcomes. If they do, then those aren’t the pure rules.

          Since social justice advocates clearly subject a set of economic rules to an external standard of justice, they have to concede that the possible existence of a set of rules that conforms to that standard. The typical attitude from many on the left that coercive intervention is a permanent and unavoidable aspect of an economic system seems deeply pessimistic. 

          OTOH, libertarians seem to have a problem with being overly certain about what the pure rules of acquisition are. That seems to be where all the trouble starts.

          • Kevin

            @Kurt: I seem to be a year late, but I think your counterexample is an inaccurate abstraction of justice. Yes, it is wrong of you to use someone else’s property without permission, but permission might be reasonably obtained retroactively. If that occurs, is any rule broken by using their shelter?

            Moreover, just laws are not simply a prescription of right action but of consequences, and if you are willing to accept the consequences, then justice is still served.

            In fact, you then make an excellent argument for why a counterexample cannot exist, namely because even if we both agree that an outcome is unjust, we would simply conclude that the rules were actually unjust.

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          Fernando,

          Thanks for your elaboration.  You raise a lot of good issues here, more than I’m probably capable of dealing with adequately.  But let me take a stab.

          First, you write:

          In what sense are they unjust? Something like this, I think. We know that under the Nozickian rules of acquisition many folks will end up with a level of resources that infringes a threshold established by an external principle of justice, and that is unjust. But, as Nozick notes, all the work here is done by the external principle of justice, by the distributional pattern (whatever it is) that the critic considers just. The Nozickian rules of acquisition are unjust because they will necessarily yield an unjust outcome. Here I think that the libertarian reply to this line of argument must rest on the moral value of liberty. Since the rules of acquisition are pure, that is, free from congenital blight, the resulting outcomes reflect free and voluntary transactions; therefore, any coercive intervention will upset freedom.

          I’m inclined to think that the dichotomy between “freedom” and “coercion” here is a bit of red herring.  Sure, taking someone’s property for redistributive purposes is coercive.  But so are the legal rules that enforce Nozickian property rights.  It’s not obvious that a regime of Nozickian property rights plus some redistribution is more coercive, in any important sense, than a regime of Nozickian property rights simpliciter.
          I think your first statement is basically right.  The idea is, as you say, “that under the Nozickian rules of acquisition many folks will end up with a level of resources that infringes a threshold established by an external principle of justice, and that is unjust.”  The only word at which I might balk here is “external.”  If Nozickian property rights had a rock-solid fully sufficient independent justification, then you’re right that we’d have to look at the claims of the advocate of social justice as external considerations that must be weighed against those rights.  But I don’t think that’s how most people think about Nozickian rights, or how they are best justified.  I think that in order to know whether such rights are justified, we have to know something about the kind of outcomes they are likely to produce, and that this is an important part of the reasoning that leads us to a kind of reflective equilibrium regarding what rights we should socially and legally recognize.
          You say that ” the rules are neutral; they do not mention individuals or groups. They are distributionally indifferent.”  And I agree that there’s an important point here.  But the mere fact that rules don’t mention individuals or groups doesn’t meant that those rules are distributionally indifferent in their effects.  And we might have perfectly sound social scientific reasons to believe quite confidently that certain rules will not be – as, for instance, with the effect of minimum wage on unskilled workers.
          Finally, I think your last point is good as far as it goes in responding to that particular line of argument.  I suspect, though, that advocates of social justice will point to other forms of arbitrariness as well, and that some of these might not be dealt with well by a one-time redistribution.  But that would need much more fleshing out, of course.

  • Anonymous

    Hi Matt,
    Thanks for the excellent post, which accurately
    identifies one of the central issues in the debate regarding the proper
    interpretation of natural rights libertarianism. I do want, however, to push
    back a little bit on your claim that on your reading of Nozick, “there is nothing
    inherently un-libertarian in the idea of social justice.” The problem is that I
    am not sure that I subscribe to your interpretation (if I understand you correctly).

    I think Nozick would say that the moral considerations he identifies that justify the original acquisition of external resources are at a “deeper” level of morality than any rules society
    may impose to regulate such claims, and to the extent of any conflict, the
    community’s laws should be seen as unjust. So, I understand Nozick to say that
    if a person risks his/her time and labor in developing a natural asset, AND in
    doing so does not worsen the position of others, then the appropriator has earned
    full capitalist property rights in this asset. Accordingly, any societal rules
    that ignore this entitlement are unjust.

    I agree with you that Nozick’s line of thinking does ultimately rest on empirical claims
    about the general superiority of an economic system that guarantees secure property
    rights relative to all competitors.  Of course, I think he is on pretty solid ground here.
    And, beyond this, I think he is concerned to exonerate his entitlement theory of justice
    against the charge that it would imply that widows and orphans should be allowed to starve in the streets.

    I have in mind here his notion of a “historical shadow” on property rights
    that precludes anyone from justly acquiring “all the water in the desert.”
    Moreover, he goes on to say (p. 180 of ASU) that “Similarly an owner’s property right in the only
    island in an area does not allow him to order a castaway from a shipwreck off
    the island…” However, he is careful to state (p.181) that
    “Considerations internal to the theory of property itself, to its theory
    of acquisition and appropriation, provide the means for handling such cases.”

    I develop the idea that the Lockean proviso might be used to justify a social safety net in
    my book, and won’t repeat it here. But, the point is that I think he does not
    wish to rely on notions of social justice in shaping property rights, but tries
    to build  intuitively attractive notions of fairness into the
    foundation of his emtitlement theory. I am not sure from your post whether your
    understanding of Nozick is inconsistent with what I have said above, but I am
    sure you will set me straight.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Hi Mark,
      I read your comment a bit quickly, and with the happy sound of my screaming child in the background, but I don’t think I disagree with any of the interpretive claims you’ve made about Nozick here.  One could think of social justice as a moral consideration external to considerations about the justifiability of property and exchange, one that shapes and limits the scope of their justification.  Or one could think of social justice as a set of moral considerations that get built into the justification of property and exchange itself.  Nozick, as I read him, is doing the latter.  But I suspect it doesn’t matter much which of the two routes one takes.  They strike me as simply two different ways of conceptually carving up the same landscape.

      • Anonymous

        They may be, as you say, “two different ways of conceptually carving up the same landscape,” but I think it highly unlikely that the substantive content of any positive right to assistance that emerges from Nozick’s principle of “justice in acquisition” will be nearly as expansive as your typical proponent of “social justice” would like .     

  • Anonymous

    Hi Matt,
    Thanks for the excellent post, which accurately
    identifies one of the central issues in the debate regarding the proper
    interpretation of natural rights libertarianism. I do want, however, to push
    back a little bit on your claim that on your reading of Nozick, “there is nothing
    inherently un-libertarian in the idea of social justice.” The problem is that I
    am not sure that I subscribe to your interpretation (if I understand you correctly).

    I think Nozick would say that the moral considerations he identifies that justify the original acquisition of external resources are at a “deeper” level of morality than any rules society
    may impose to regulate such claims, and to the extent of any conflict, the
    community’s laws should be seen as unjust. So, I understand Nozick to say that
    if a person risks his/her time and labor in developing a natural asset, AND in
    doing so does not worsen the position of others, then the appropriator has earned
    full capitalist property rights in this asset. Accordingly, any societal rules
    that ignore this entitlement are unjust.

    I agree with you that Nozick’s line of thinking does ultimately rest on empirical claims
    about the general superiority of an economic system that guarantees secure property
    rights relative to all competitors.  Of course, I think he is on pretty solid ground here.
    And, beyond this, I think he is concerned to exonerate his entitlement theory of justice
    against the charge that it would imply that widows and orphans should be allowed to starve in the streets.

    I have in mind here his notion of a “historical shadow” on property rights
    that precludes anyone from justly acquiring “all the water in the desert.”
    Moreover, he goes on to say (p. 180 of ASU) that “Similarly an owner’s property right in the only
    island in an area does not allow him to order a castaway from a shipwreck off
    the island…” However, he is careful to state (p.181) that
    “Considerations internal to the theory of property itself, to its theory
    of acquisition and appropriation, provide the means for handling such cases.”

    I develop the idea that the Lockean proviso might be used to justify a social safety net in
    my book, and won’t repeat it here. But, the point is that I think he does not
    wish to rely on notions of social justice in shaping property rights, but tries
    to build  intuitively attractive notions of fairness into the
    foundation of his emtitlement theory. I am not sure from your post whether your
    understanding of Nozick is inconsistent with what I have said above, but I am
    sure you will set me straight.

  • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

    Very thought-provoking post.   Just a few considerations:

    W.V.O. Quine once asked, “What is convention when there can be no thought of convening?”  That is, how can there be such a thing as a convention in the absence of a convening body that establishes the convention?   David Lewis then wrote an entire book explaining how there can be such conventions, and most accounts of convention since then have gone broadly along Lewisean lines.   So the first thing to suggest is that it is very plausible to think that distribution is like convention.  To speak of the existence of a distribution of goods does not entail that there is any agent or agents who have performed the distribution, either individually or collectively.

    The second issue then is how such a distribution can be just or unjust if it is not deliberately determined by human actions.  There is a long tradition according to which justice is a virtue pertaining to the way we treat others, and so only human actions can be just or unjust.  But there is an alternative tradition that treats justice from the patient side rather than the agent side.   In this tradition, we can ask even of a world which contains only a single individual whether that individual receives justice or not.   Justice, on this account, presumably has something to do with concepts such as merit or desert, and we would say a person receives justice to the extent that the goods and evils that flow to them are in some way commensurate with their own degree of goodness.

    I don’t share Kevin’s intuitions – or rather the Nozickian or Hayekian intuitions as formulated by Kevin – that a claim of injustice must ground indignation, responsibility and blame.   Imagine the King and the vizier are diligent and just individuals, and work carefully to craft the wisest and most just laws.  They undertake years of careful and time-consuming study,  put in a great deal of thought, do the best they can, codify the best set of laws they can formulate and enact them into law.   Then the vizier comes to the king and says, “Majesty, we must change the laws we enacted.  It turns out they are quite unjust.”  And the vizier then proceeds to outline a variety of cases in which, despite their best efforts earlier to foresee all contingencies and account for them in the law, the law as enacted treats various people horribly in various unforeseen circumstances.  I don’t think the just king would respond, “You must be wrong vizier.  The laws can’t be unjust, because we exerted our best possible efforts to make them just, and therefore we are not blameworthy.  No one who understands the efforts we put in has any cause to feel indignant.”

    Instead, I think the just king would probably respond, “You are right vizier.  Although we are not blameworthy, the evidence you have given me shows that these laws are unjust indeed, and must be changed.”

    • Kevin Vallier

      In response to your concern about my case, I think the vizier’s response to the king is a little peculiar. He would be right to say that the rule caused unforeseen harm or failed to be efficient or failed to meet some other evaluative criteria. But would the rule be unjust merely in virtue of the fact that the law as enacted treats various people horribly? Isn’t the injustice the result of those who maintain the law despite recognizing its failure to meet the relevant evaluative criteria?

      Here’s an intuition one of my teachers, Thomas Christiano, uses in response. Imagine a jury trial where the jury had the best available evidence and deliberated based on the most sound norms of inference. They nonetheless get the verdict wrong and find the defendant guilty when he was innocent. In this case, we want to say that an injustice has been done. But my intuitions aren’t so objectivist as that. A bad outcome occurred, but if in fact the facts exonerating him were so completely inaccessible to reasonable and rational individuals our intuition about the injustice would change. I’m inclined to say that an injustice is committed when the counterevidence comes to light and his the defendant’s punishment isn’t altered and/or compensated. What do you think?

      • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

        In the latter case, I’m more inclined to think that an injustice has occurred, because the defendant didn’t receive justice; and that to say an injustice has occurred does not entail that anyone has committed an injustice or acted unjustly.

        In the case of the king and the vizier, suppose every family in the city is officially classed and registered as either an artisan family or a merchant family, and that these two classes of people are housed in different parts of the city.   The kindly king has playgrounds built for all of his subjects’ children, and in order to allocate the play spaces effectively, and after consultation with his vizier, he enacts two laws:

        The children of merchant families must not play in the artisan families’ playground
        The children of  artisan families must not play in the merchant families’ playground.

        But suppose, unbeknownst to the king and the vizier, there are a very small number of families in the kingdom who are classed as both artisan families and merchant families, by special act of the previous king.  As a result, the children of those families are not permitted by the current laws to play in any playground.

        In that case, wouldn’t you want to say that the laws themselves are unjust, and not just that the laws caused an unforeseen harm?

      • Damien S.

        Justice as used here seems similar if not identical to ‘equity’.  England grew a whole separate system of courts of equity which evaluated the outcomes of legal decisions based on their perceived justice.  The laws weren’t immediately changed; the laws might have been fine under ordinary circumstances; but sometimes led to situations where people said “mmmm NO”.

        And people will often look at a situation and say “that’s not fair”, even if no one specific did something identifiably wrong.  You may not like it, but this is how the words are often used.  Consequentialism, not deontology.

    • http://www.facebook.com/profile.php?id=543699856 Matt White

      This is an interesting view on social justice, but to me it appears as though it is simply another form of central planning, or a reaction to it by
      counter planning. Who are these angels that are going to take up the task of:
      “determining which rules are just is to think about the effects that
      different sets of rules will likely have on the pattern of distributions within a society.”?
      There is no way to figure this out with any reasonable degree of
      accuracy and the execution of any equalizing policy is likely to result
      in further ‘injustice’. In the case where the State is assigning mates,
      it is obvious to whom the State is not assigning them. However, where
      the State is granting privilege to wealth or other means, it is
      impossible to determine to what degree others are being ‘unfairly’
      treated in this way. That is because the direct beneficiary is not the
      only one benefiting from the privilege. The answer is not to try to
      level the distribution by the State, but to simply end it. I know that
      is not easy to do, and your response may be something along the lines
      of pragmatism, but this will put us in the same place from where we began. I would submit that many central planners have the best of
      intentions, but good intentions do not wipe away the inherent problems
      with the system of central planning in the first place. I would love
      to see perfect justice administered, where every single person who was a
      beneficiary of legalized plunder had to ‘pay back’ their share of that
      which was taken from someone else through government, but that is
      impossible to determine. And again, any attempt to do so will likely
      result in committing further injustice.

  • Anonymous

    Great Post.  It seems that libertarians often oppose the idea of distributive justice because the specific form that it has tended to take is egalitarian.  (more equal is more just).
     
    But perhaps a different form is more compatible with libertarianism.  Perhaps something like: greater rewards for greater productivity. 
     
    Interestingly, this reminds me of the Randian argument for free markets.  She went through some pains to justify the unequal material rewards in a free market, probably because she realized that the distributive justice question cannot be ignored.

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  • http://twitter.com/VelizCF CFV

    I believe the first part of the post can be aptly summed up as follows: both Hayek and Nozick are categorically mistaken about a category mistake!

  • Anonymous

    I do not understand your argument.  Nozick says a distribution is unjust only if  it arises  from violations of principles of justice in acquisition or justice in transfer.   You say the  problem with this is:

    “… the distribution of holdings in a free society is determined partly by the countless ordinary decisions of innumerable individuals.  But it is also a product of the social and legal rules that govern and structure those decisions: rules that determine the contours of property rights and contracts, that determine whether there will be a social safety net and what form it will take, that determine the extent, limit, and uses of taxation, and so on.  These rules might be just or they might be unjust. ”

    Could you give an example of what such an unjust rule   — i.e. one that Nozick would not regard as violating principles of justice in acquisition or transfer– might be like?

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Well, just to be clear, the problem I’m pointing out in this post is not with Nozick’s claim that a distribution is unjust only if it arises from violati0ns of the principles of justice in acquisition or transfer.  That claim might be problematic too, but I’m not taking issue with it here.  The claim I’m taking issue with is Nozick’s claim about the concept of distributive justice being based on the false assumption that distributions are produced by a central distributor.  Nozick thinks that distributions result from the decisions of separate individuals.  That’s true, but only part of the story.  They’re also a product of social and legal rules.

      So, what would an example of an unjust rule be?  A lot’s going to depend, of course, on what your theory of justice is.  But it would not be unreasonable, I think, for a theory of justice to hold what John Tomasi refers to as a “distributional adequacy condition,” such that in order for institutions to be just, they must be likely to bring about some desired distribution of material goods.  What counts as a “desired distribution” can be cashed out in a variety of ways – egalitarian, sufficientarian, etc.  

      So to come up with an example of the sort you’re looking for, we’d need to find a legal/social rule that did not violate strict Nozickian rules on justice in acquisition and transfer, but failed to meet some plausibly spelled out version of a distributional adequacy condition.  And determining which rules do that is a little difficult, both because of the complex empirical issues involved, and because of how little Nozick actually says about the substance of his principles.  But good places to look for such rules might include the rules governing bequests, rules governing externalities, rules governing property usage and rights of exclusion and easement, and rules governing remedies available to the poor.  Like I said though, a lot depends on the details.

      • Anonymous

        But

        11N1) Nozick’s arguments are offered against any “patterned”
        conception of justice  not just against ones “… based on the false
        assumption that there is a central distributor” . 
        w)

        2)      2) Where do “social and legal rules”  come from if not,
        ultimately, the separate decisions of individuals?

        3)       3) I don’t see there is any “empirical” question here.
         Calling a distribution unjust because it violates Tomasi’s strictures –
        or any other pattern principle—just begs the question against Nozick. 
         For your argument to succeed you need to  describe a *possible*
        mechanism  that does not involve unjust acquisition or transfer but which
        resulted in  distribution that everyone – including Nozick—would
         agree was unjust.   Absent such an example it doesn’t
         seem to me that you have an argument. 

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          1) Nozick does argue against that, but not in the argument I’m looking at here.  The point I’m trying to make is a pretty limited one.
          2) Sure, I’m willing to grant that.  Indeed, if social and legal rules didn’t come from the actions of individuals, if they were brute facts of nature for instance, I don’t think it’d make much sense to call them just or unjust.  But even if they arise out of the separate decisions of individuals, we can still draw a distinction between the actions of individuals within a set of rules and the set of rules itself.
          3) I don’t claim to have provided an argument that we should adopt any particular theory of social justice.  Doing that would require, as you say, much more substantive argument than I’ve given.  All I’ve tried to do is show that it is possible for some such argument to be affirmed without running into the particular problem that Nozick takes himself to be pointing out in the passage I’ve quoted.  He has other arguments for other claims elsewhere in the book, but I’m not engaging with those here. 

  • David Gordon

    I think that Nozick isn’t making the argument you attribute to him in the passage that you quote.  He doesn’t claim that it is conceptually confused to ask whether the results of people’s ordinary actions could be unjust. Rather, he is merely pointing out that the term “distributive justice” is unneutral because it leads people  to think that this question must be asked and that it doesn’t arise on his own theory. He isn’t arguing for his theory here and against theories held by left-liberals; he is calling attention to a way in which his account differs from theirs.

    • Anonymous

      Yes, I think this is correct. See my comments above.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Hi David,

      You’re right, of course, to point to a difference between Nozick’s and Hayek’s arguments here.  Hayek  is, at the very least, much more explicit in arguing that the concept of distributive justice involves a conceptual confusion.  Nozick doesn’t spend much time on this issue at all, so it’s hard to know exactly what he thinks, but he does come pretty close to echoing Hayek’s view.  Nozick says that
      1) Most people presume that the concept of distributive justice implies some distributor using a principle to dole things out.
      2) No such distributor exists.

      If we drop the “most people presume” bit in 1) and hence change it to read:

      1′) The concept of distributive justice implies some distributor using a principle to dole things out

      then I think you get the same conclusion that Hayek draws out explicitly: it’s a confused concept, because based on a false claim about the existence of a distributor.

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  • David Gordon

    Hi Matt,

    Thanks a lot for your very helpful reply.  My difficulty
    is that in order for your conclusion to follow that for Nozick,
    distributive justice is a confused concept, your premise 2) above must
    be taken as a conceptually true claim. But 2) is not a conceptual claim:
    many consistent theories of justice do have as a feature a central
    distributor. ( As Nozick is using the term, this can be either a person
    or a mechanism.)  Premise 2) comes out true if it is taken to refer to
    his own theory: if everyone holds property in accord with his rules of
    acquisition and transfer, there are no further questions to be asked
    about whether persons’ holdings are just.  In your passage, he is making
    a point about his own theory, and he doesn’t take his own theory to be a
    conceptual truth: it suffices for him that it’s true. He of course
    rejects patterned theories, but I don’t think he regards them as by
    their nature conceptually confused.

  • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

    Interesting, David.  I certainly agree that we shouldn’t read 2) as a conceptual claim.  But I didn’t read it as a claim about his own theory, either.  I took it to be a kind of empirical claim.  So, someone might ask whether holdings in a particular society are in accordance with distributive justice.  I see Nozick as pointing out that in most circumstances, such a person would be making a basic conceptual confusion – committing a category mistake.  (Though I guess that’s importantly different from saying that the *concept* itself is confused).  It’s a mistake because (empirical claim:) for most complex societies, holdings are not determined by a distributor.  This is true not just of societies that operate purely in accordance with Nozickian principles of justice, but for all but the most perfectly managed socialist utopias.
    How’s that sound?

  • David Gordon

    Matt, thanks again! If you take Nozick in the way you suggest, he would be open to an easy counter. Theories of justice are claims about what ought to be the case, not empirical claims about what is the case. A supporter of distributive justice of the sort you have in mind could respond to your way of taking Nozick, “Of course, I’m not suggesting that societies today have a central distributor. But they ought to.”

    If one were to respond to this that there is good reason to think centrally directed societies don’t work, this would show only that  theories of centrally directed distributive justice can’t be put into effect. Advocates of these views would not be guilty of any conceptual confusion.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Hi David. This is helpful.  And yet, somehow, you’ve jiu-jitsued me into defending Nozick.  OK, I can play that role.

      Anyway, I agree of course about the normativity of theories of justice.  But I don’t think that gives Nozick’s hypothetical interlocutor as easy a response as you suggest.  

      What Nozick would be saying, on the reading I’ve been toying with here, is this.  “Look, you claim that our present society fails to meet the standards of distributive justice.  But that claim would only make sense if there was some person or mechanism distributing stuff in accordance with some principle.  There isn’t.  Maybe there should be – that’s another argument for another day.  But to believe that the concept of distributive justice applies to a society like ours as it actually exists is to make a kind of conceptual error.”

  • Vlad Tarko

    “a conversation between Hayek and James Buchanan. Gosh I wish this clip was longer!”

    you can view the whole thing here: http://hayek.ufm.edu/index.php?title=James_Buchanan

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Oh, excellent! Thanks!

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  • Anonymous

    Echoing others who posted before me, I am only beginning my consideration
    of libertarianism, and likewise, am out of my depth.  I am not a bleeding heart; but I am progressive
    in terms of civil rights and I have been encouraged to see how my philosophy jives
    with libertarianism.  Personal Liberty (1.1 through 1.6) and Securing
    Liberty (3.1 through 3.7) express my beliefs.

    Because the rights and responsibilities of personal choice are
    the essence of libertarianism, everyone, ideally, benefits from it.  Social justice, when defined as supporting the
    vulnerable, would not be an issue.  I
    feel that addressing social justice as ‘the issue’ is viewing the problem from
    an unhelpful perspective.  The
    concentration of great wealth and the “privilege” of power would be (and is)
    the problem.

    My perception
    is that the true enemies of libertarianism – of society – are the
    powerful.  As Ronald Reagan pointed out, “[c]oncentrated power has always
    been the enemy of liberty”.  “Not
    necessity, not desire – no, the love of power is the demon of men. Let them
    have everything – health, food, a place to live, entertainment – they are and
    remain unhappy and low-spirited: for the demon waits and waits and will be
    satisfied (Friedrich Nietzsche).”

    Only those who do not accept the consequences of their
    choices are the problem, and the powerful and criminal (too often combined in the
    same individual) excel in this area.  Power-mongering
    mows through justice and leaves many in the society bereft, and the rest of us
    making a mess of trying to help them. 

    The powerful consistently and historically misuse the
    principals of Economic Liberty (2.1 through 2.10) to their own advantage –
    to the great disadvantage of numerous others. 
    Our government has grown directly in response in order to counter
    balance the menace of power and avarice. 
    A statement such as “…advocates and social pressure are the most
    effective means of changing public behavior” is simply naïve! 

    I suspect libertarians,
    like republicans and democrats, are unable to deal with the powerful elements that
    interfere with personal freedom.  In
    fact, by tearing down the only protection society has (the huge, unwieldy,
    expensive government), perhaps libertarianism will be throwing us completely to
    the dogs. 

    “The measure of a man is what he does with power (Plato).”

     

     

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  • Kevin

    “Of course, stated this way, the argument doesn’t quite work. After all, the distribution [of] holdings in a society might be the result of the unjust actions of someone other than a central distributor.”

    That would be unjust under Rule #1, wouldn’t it? Which “someone” are you considering?

    Your later argument that laws may be shifted to benefit one group (e.g. the least well-off) over another while still remaining just is intriguing, but do you have any examples where that is the case?

    I also question whether there even exists a standard for social justice that is moral. e.g. “maximizing the well-being of the least well-off” suggests that there is something inherently immoral about a differential in well-being or simply being less well-off. Moreover, the standard is itself immoral if the least well-off are rightly so.

    Even if you do find a moral standard for social justice, the negative outcome without that standard must be so severe and unserved by voluntary charity as to warrant violent compulsion under law. This is unlikely in a democracy where voting to compel help for the least well-off would correlate with voluntarily helping them.

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