Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Saturday, April 2, 2011

Natural Law's Modern Cousin Germain: Distributive Justice, Part 1

JUSTICE MAY BE SAID TO BE PART of the requirements of practical reasonableness arising from life within community. It is intricately related to the notion of the common good. Indeed, Finnis defines justice as:

An ensemble of requirements of practical reasonableness that hold [sic] because the human person must seek to realize and respect human goods not merely in himself and for his own sake but also in common, in community.

NLNR, 161. Finnis identifies three elements always found in justice: (i) other-directedness; (ii) duty; and (iii) equality. Each of these elements deserves a little elaboration.

"Other-directedness" identifies the fact that justice involves relationships with other persons, and thus involves inter-subjective or inter-personal relationships. Strictly speaking, one cannot be just to himself; there must be at least two persons and a practical situation or some interaction between them for justice to enter into the scene. (The expression "doing justice to oneself" is "justice" only loosely, and involves a sort of artificial division of self. Indeed, this is what Plato does in comparing the justice among men with the "justice" within man. In his famous description, Plato divides man into three "selves" or component of self: reasonableness, desire, and spiritidness: justice within the state is nothing other than justice within the soul write large: "καὶ δίκαιον δή," he tells Glaucon in his Republic, οἶμαι φήσομεν ἄνδρα εἶναι τῷ αὐτῷ τρόπῳ ᾧπερ καὶ πόλις ἦν δικαία." “Just too . . . I presume we shall say a man is in the same way in which a city was just.” Rep. IV, 441d.)

From William Blake's "Marriage of Heaven and Hell"

The question of duty is intrinsic to nature: it involves the notion of "debt" or debitum, and "owing" of something to someone. Famously, justice is defined as suum cuique, to give to each his own, which implies debt or obligation. Duty has another face: right. Where there is right there is duty; where there is duty there is right. Justice implies right; injustice implies wrong.

Equality is a third element in justice. However, the term equality must not be taken in a strict sense, but in an analogical sense. The equality is a fitting equality, and includes a sense of proportion or fittingness, or of equilibrium or balance. The equality here is not a Procrustean equality: the equality here is encapsulated in the Blakean insight: "One law for the lion and ox is oppression."

In a sense, any failure of practical reasonableness by an individual who is living in community will affect relations in the community. Accordingly, this is why "justice" as a virtue is frequently seen to comprehend or include all other virtues. This justice, which is more a quality of character (habitus) might be defined as "in its general sense," as an "always a practical willingness to favour and foster the common good of one's communities." NLNR, 165.

Finnis adopts the traditional classifications of justice: distributive justice and commutative justice. This traditional division reaches as far back as Aristotle, who himself divided his treatment of justice into distributive justice (διανεμητικὸν δίκαιον or dianemētikon dikaion) (Nicomachean Ethics, 1132b28; 1132b 24, 32) and "corrective" justice (διορθωτικόν δίκαιον or diorthōtikon dikaion) (e.g., Nicomachean Ethics, 1131a1, 1131b25, 1132b25) which dealt with the relationships between individuals, the synallagmata (συναλλάγματα) or contractual arrangements between citizens. We shall discuss distributive justice in this posting and the next, and commutative justice following that.

Justice in the abstract is not really justice; there must be justice in the concrete circumstances of life in the community. Justice is not a vague internal disposition alone; it is an active virtue that is found within the concrete circumstances of life in common and therefore is intrinsically tied with the common good. As one particularizes from general justice, one may identify two broad classes of problems that arise in co-ordinating the "ensemble of conditions for individual well-being in community" which give rise to the classical division of general justice into two basic prongs of particularized justice: distributive justice and commutative justice.

First, there are issues arising from the distribution of resources and burdens of communal life. How do we distribute educational resources among the population? How do we distribute the taxes among the people? These and similar questions relating to the distribution of resources and burdens of the common stock among the community are the questions of distributive justice. The proper allocation of resources and burdens of communal life through application of the requirements of practical reasonableness is known as distributive justice. The issues that relate to the individual well-being in a community with respect to his individual relations with other individuals or groups involves questions of commutative justice. Distributive justice is thus more public in focus, whereas commutative justice is more private in focus, though both involve life in common.

Within the context of distributive justice, justice may be defined in this manner:
A disposition [of common or public resources or burdens] is distributively just, then, if it is a reasonable resolution of a problem of allocating some subject-matter that is essentially common but that needs (for the sake of the common good) to be appropriated to individuals.
NLNR, 166-67.

Finnis categorizes the "subject-matters" that may come within the scope of distributive justice into three: (i) natural common resource or common stock; (ii) produced common resources or common stock; and (iii) the incidents of communal enterprise (the tasks, labor, expense of life in common). The first involves matters like the natural resources within the boundaries of a community: its energy resources, its lands, forests, rivers, etc. The second involves products of common life: weapons, sea-walls, dikes, roads, public buildings, public enterprises, public treasury, etc. The third involves things like public offices (policemen, judges, etc.) and financing the public fisc (taxes, borrowing).

The issue of "common enterprises" or "public enterprises" is given further treatment by Finnis since these features of life in common can become overweening or unbalanced as a result of wrong perceptions or emphases of the common good. The "common good" ought not to be understood in a purely communal or communistic sense. The "common good" comprehends within it notions of individual good:

The common good which is the object of all justice and which all reasonable life in community must respect and favour, is not to be confused with the common stock, or the common enterprises, that are among the means of realizing the common good. Common enterprises and the exploitation and creation of the common stock of assets are alike for the common good because they are for the benefit of individual members of the community. . . . An attempt, for the sake of the common good, to absorb the individual altogether into common enterprises would thus be disastrous for the common good, however much the common enterprise might prosper.

NLNR, 168. In short, the "common enterprise" or "common stock" was made for man, not man for the "common enterprise" or "common stock."
It is therefore a fundamental aspect of general justice that common enterprises should be regarded, and practically conducted, not as ends in themselves but as means of assistance, as ways of helping individuals to 'help themselves' or, more precisely, to constitute themselves.
NLNR, 169. The Finnisian notion of the common good is not an advocacy of communism or socialism, but is one biased in favor or the individual and private initiative since it is grounded upon the "principle of subsidiarity," which for Finnis is itself a "principle of justice." NLNR, 169. The principle of subsidiarity sets itself against such an absorption of individual man into a monolithic state.

Thus, even if there are inefficiencies to the "common enterprise" as a result,* the common good and its ordering to individual good and self-direction, prevents the "common enterprise" from overcoming the individual. This is one reason why private ownership of property is, in justice, mandated.

The good of personal autonomy in community . . . suggests that the opportunity of exercising some form of private ownership, including means of production, is in most times and places a requirement of justice. . . . [A] regime of private ownership will be a requirement of justice, provided that the increased stock of goods yielded by such a regime is not hoarded by a class of successful private owners but is made available by appropriate mechanisms (e.g., profit sharing; trade under competitive market conditions; redistributive taxation; full employment through productive investment; etc.) to all members of the community, in due measure.

NLNR, 169. Yet private ownership is not an absolute right, since it must be understood within the context within which such right arises (the common good). There is no justification to be found in the right to private property for hoarding, for negligent administration of one's wealth, for unreasonable use of one's wealth in inordinate luxuries, in failure to put excess wealth to productive use, for the formation of oligopolistic or monopolistic ventures, for the exploitation of others. Finnis has a balanced view of the matter which, although lengthy, deserves full mention:
The point, in justice, of private property is to give the owner first use and enjoyment of it and its fruits (including rents and profits), for it is this availability that enhances his reasonably autonomy and stimulates his productivity and care. but beyond a reasonable measure and degree of such use for his and his dependants' or co-owners' needs, he holds the remainder of his property and its fruits as part (in justice if not in law) of the common stock. In other words, beyond a certain point, what was commonly available but was justly made private, for the common good, becomes again, in justice, part of the common stock; though appropriated to his management and control, it is now not for his private benefit but is held by him immediately for the common benefit . . . . From this point, the owner has, in justice, duties not altogether unlike those of a trustee in English law. He may fulfil them in various ways--by investing his surplus in production of more goods for later distribution and consumption; by providing gainful employment to people looking for work; by grants or loans to hospitals, schools, cultural centres, orphanages, etc., or directly for the relief of the poor. Where owners will not perform these duties, or cannot effectively co-ordinate their respective efforts to perform them, then public authority may rightly help them to perform them by devising and implementing schemes of distribution, e.g., by 'redistributive' taxation for purposes of 'social welfare', or by a measure of expropriation.

NLNR, 173.

*This is conceded arguendo. In point of fact, as Finnis notes, the opposite is probably the case. Private ownership is, in most cases, more efficient than public ownership. As a "'rule of human experience," Finnis notes that natural and capital resources are more efficiently exploited and preserved and managed by private ownership than by public enterprises. Along with the benefits of private ownership, however, arises the danger of unjust hoarding by successful private owners and forgetfulness of the essential public role of private ownership. Ultimately private ownership is not for self-aggrandizement, but for the good of others, including "one's own," first, those most close, but also "one's own" in the sense of the broader community in which one finds oneself. Private ownership is one thing when the owner is greedy, exploitative, selfish, and not other-regarding, than when the owner is not greedy, is charitable, altruistic, and is other regarding. In the former instance, private ownership may become unjust, whereas in the latter instance, it may be just. Thus, one cannot say that private ownership is just irrespective of the intent or disposition of the owner. Therefore, private ownership implies the common good and must be understood within it. That is why Aristotle, for example, states that "property ought to be common in a sense, but private speaking generally . . . possession should be privately-owned, but common in use." Pol. II, 2:1263a26, 38-9; NLNR, 171. That is also why an appropriate view of private property will understand that "private ownership . . . is unconditionally just." NLNR, 172. Private ownership is conditionally just. There are "conditions which private owners must conform to if their ownership is to be distributively just." NLNR, 172. It is an error to be an absolutist in the right to private property. The Catechism of the Catholic Church (citations omitted) presents a balanced-natural law view on the matter:
2403 The right to private property, acquired by work or received from others by inheritance or gift, does not do away with the original gift of the earth to the whole of mankind. The universal destination of goods remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise.

2404 "In his use of things man should regard the external goods he legitimately owns not merely as exclusive to himself but common to others also, in the sense that they can benefit others as well as himself." The ownership of any property makes its holder a steward of Providence, with the task of making it fruitful and communicating its benefits to others, first of all his family.

2405 Goods of production - material or immaterial - such as land, factories, practical or artistic skills, oblige their possessors to employ them in ways that will benefit the greatest number. Those who hold goods for use and consumption should use them with moderation, reserving the better part for guests, for the sick and the poor.

2406 Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good.

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