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.

Sunday, April 3, 2011

Natural Law's Modern Cousin Germain: Distributive Justice, Part 2

WHAT ROLE IS IT THAT EQUALITY has with justice? For Finnis, equality is fundamental to the notion of justice generally and therefore of distributive justice as well. The equality at issue is one where "all members of a community equally have the right to respectful consideration when the problem of distribution arises." This stems from the notion that like cases ought to be treated alike, a fundamental aspect of the rule of law and equality under the law. For Finnis, however, equality is a "residual principle," one that takes effect only if other principles, more fundamental, "are inapplicable or fail to yield any conclusion." The residual nature of equality stems from the end of justice, which is not equality, but rather is the common good. The common good is not necessarily most promoted by "treating everyone identically when distributing roles, opportunities, and resources." NLNR, 174.

Naturally, the common good is an elusive concept, particularly one difficult to determine in actual practice. As Finnis notes, there are "no very precise yardsticks for assessing" the common good and when it demands intervention in the distribution of goods and when inequality becomes detrimental of the common good. There are many criteria, there are multiple vantage points, and so there is "no one criteria universally applicable for resolving questions of distribution." NLNR, 174.

The "primary criterion" for intervention appears to be need for a basic human good. Human need requires more urgent response than human want. But even need is not an absolute principle. It has its own attenuating factors:

[Need] is, however, subject to considerable discounting in the case of those whose indigence either results from their own unreasonable unwillingness to exert themselves for their own good, or is imposed upon them as lawful punishment for their culpable self-preference and harmful indifference to the good of others.

NLNR, 174.

A "second criterion" identified by Finnis relating to just distribution is function. Here, the focus is not on the need for a basic human good, but on the "roles and responsibilities in the community." NLNR, 175. Another criterion identified by Finnis include capacity, both to one's "roles in communal enterprises" and in terms of "opportunities for individual advancement. In distributing flutes, the principle ought to be "flutes to flute-players," not "flutes to everyone." Something frequently neglected is the question of distributive justice is deserts and contributions. Someone--whether as a result of self-sacrifice or as a result of meritorious application of effort or ability--ought to be recognized as having claim to something more than one who has not exerted himself similarly. The negative side of that criterion is that of distributing losses. It is fair to distribute burdens unequally, and to impose a greater share of those burdens on persons who have created or who have foreseen and accepted avoidable risks associated with certain behavior. These costs ought to be internalized to the ones who caused them. So, for example, the costs of cleaning up environmental damage arising from, say, the production of batteries should be borne not by the public generally, but should be borne to greater extent by those who have caused the environmental problem (which may be both the producer of batteries and the consumer of batteries).

In discussing distributive justice, however, we ought not forget that the focus is personalist in nature, not consequentialist. The focus is on what practical reasonableness requires of people in dealing with other people, not implementing or promoting a particular state of affairs.
And what is thus required of a particular person depends essentially on what responsibilities he has, whether by virtue of his own voluntary commitments (e.g. his assumption of rulership) or by virtue of his past or present receipt of benefits from another (e.g. as a child, in relation to his parents), or by virtue of the dependence of others upon him (e.g. as a parent, in relation to his children), or by virtue of a network of relationships of actual and potential interdependencies (such as exist strongly, for one set of reasons, amongst members of a family living unit, and strongly, for another set of reasons, amongst members of a sound political community, and to a lesser but increasing extent between the communities that together make up the whole community of mankind).
NLNR, 175.

In short, the problem is a complex one, and there are no ready, clear, and inarguable rights and wrong. The role of prudential decisions, with their breadth of choices and options, allows for many answers to the thorny questions of proper distribution of a community's goods within the greater demands of distributive justice. This is not an area where mathematical equations can be applied to yield--presto!--answers to questions of distributive justice. And yet the lack of "precise and unqualified directives of reason" in making decisions of distributive justice ought not to be used as an excuse for the irresponsible avoidance of these decisions, or for excessive tolerances of unfair distribution. Additionally, the lack of such precision of the personalist aspects of distributive justice ought not to tempt us to more facile consequentialist solutions to the problems.

Here the feeling that it is difficult or impossible to find norms for definitively apportioning one's efforts in differing degrees amongst different potential beneficiaries seems to link up with the assumption that justice is primarily a proper of states of affairs and only derivatively a property of particular decisions of ascertained person; and this combination of unformulated assumptions yields to a peculiarly utilitarian concept of justice.

NLNR, 176-77. When consequentialist or utilitarian concepts of distributive justice steal in, the principle of "treat like cases alike" becomes transformed into "each person counts for one and only one," and human justice is ripped out of its personalist, communitarian and organic character and forced into some individualist, mechanist, and mathematical mode.* Prudence is replaced by mathematics. Ultimately, these utilitarian or consequentialists versions of distributive justice are inhuman and unjust. They ought therefore be rejected:
[I]n thinking about justice, we should go further and reject the principle of [utilitarian or consequentialist justice], so plausible prima facie, that 'each person counts for one and only one'; for this principle is not reasonable as a principle for the practical deliberations of anyone. Of everyone it is true that, because of his promises, and/or his parenthood, and/or his debts of gratitude, and/or his relations of interdependence with or assumption of authority in relation to ascertained persons or communities, he cannot reasonably give equal 'weight', or equal concern, to the interests of every person anywhere whose interests he could ascertain and affect.
NLNR, 177.

*We are blinded by these facile "one-to-one" formulae. For example, the principle "one person" "one vote" seems to be a common formulation of the right of franchise, but it has its intrinsic viciousness. Why, for example, should the vote of a father who supports ten children through hard work and self-sacrifice have the same weight as a homosexual who lives a hedonistic, self-regarding life, spent in gay bars and self-indulgent materialism? It would seem that in distributing the right of franchise, distributive justice viewed from a personalist perspective would see that the sacrificial father's vote ought to be weighted 11 to 1 relative to the selfish homosexual.

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