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12: Slicing the Cake Nobody Baked * - Anthony de Jasay, Justice and Its Surroundings 
Justice and Its Surroundings (Indianapolis: Liberty Fund, 2002).
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Slicing the Cake Nobody Baked*
Explanatory theories of distribution can get along, after a fashion, without recourse to the notion of rights. Normative theories of distributive justice, on the other hand, presuppose matching theories of distributive rights. Outlining a set of principles of distributive justice without accounting for the rights, or their absence, that such justice would presuppose strikes me as incomplete. It amounts to laying down rules for sharing out manna, a windfall, a cake that nobody baked, a pool of goods that have no prior owners. Consequently, the problem of conflict between prior and posterior claimants to goods need not be dealt with: all claimants reach out from the same baseline for what they think they ought to have.
This very incompleteness speaks loudly about the nature of the principles in question. Revealingly, Barry proposes principles, provides some (I think precarious) underpinnings for them, and draws out quite awesome policy implications, without any reference to property, except at the end of his argument, as an afterthought.
Of Barry’s six proposed principles, the key one is the “presumption of equality.” It is the hardest to underpin and the most in need of underpinning. It is also the only one that tells society what shall happen in cases where the distribution of resources and opportunities is in dispute, since it gives rise to a “reasonably” clear collective decision rule. (On the power of the word “reasonably,” more must be said presently.) The other five principles are either subsumed by it in the sense that application of the decision rule implicit in the first principle would, all by itself, produce the results the other principles are intended to bring about, or are so vague and so open to interpretation as to be vacuous.
Barry interprets his “presumption of equality” to mean that only the departures from equality must be justified. Once this is granted, it remains to choose the criterion, substantive or procedural, that makes the justification adequate, conclusive. How to tell that an inequality is “really” justified? There is no recognized adjudicator, only interested parties to the dispute. However, if even those who are least favored by it find an unequal distribution acceptable, it is justified. This criterion directly gives rise to a social choice rule for bringing about distributive justice.
By the rule, any distribution can be vetoed by those, but presumably only by those (a class? a group? a single individual?) who get the least under it. Consequently, the only distribution immune to veto is an equal distribution, under which nobody gets less than anybody else, hence nobody is entitled to a veto.
Barry qualifies this somewhat forbidding result by adding an adverb to a double negative (“cannot reasonably [emphasis added] be rejected”); but it is surely unworldly, in philosophy as in practical politics, to rely on the low-powered word “reasonably” to guarantee a reasonable result.
The “anti-aggregation principle” merely specifies, using a triple negative, that a change in distribution need not be accepted by those who lose by it if and only if it is those who get the least who lose. But by the first principle, they can veto it anyway and need no extra authority to do so. This is so because, prior to the change, the distribution was equal subject to a Paretian proviso, for otherwise it would have been vetoed. As the result of the change, the losers would automatically become less well off than anybody else, and the first principle would allow them to veto the changed distribution. Hence the “anti-aggregation” principle is redundant. The same is true, for analogous reasons, of the “compensation” principle. The victims of misfortune can veto a distribution that leaves them worse off than the nonvictims. Prior to the misfortune, all are equally well off. After the misfortune, the victims can insist on being compensated in whichever way will restore their condition to equality with the nonvictims, simply by virtue of the principle of equality. No principle of compensation is needed. The “vital interests” principle, if it means anything, is also redundant because it is already taken care of by the first or equality principle: a situation where some people can satisfy their nonvital interests while others cannot even meet their vital ones could be vetoed by the latter without benefit of a new principle to that effect.
The remaining two principles add little of substance. The “principle of personal responsibility” leaves it indeterminate what must, and what need not, be recognized as a consequence of one’s own choice.1 Failing its restatement in far sterner language, it is no guide to distributive justice. At best, it is inconclusive. At worst, it becomes the “it is not my fault” principle. Finally, the “principle of mutual advantage” or strong Pareto improvement merely lays down that if the least-favored prefer an (albeit unequal) distribution, they do not have to veto it. However, this is not worth stating, and nor is it a “principle.” By the first principle, inequalities are subject to veto rather than to interdiction. Hence, it is clearly optional, and equally clearly not mandatory, to suppress an inequality that is to everybody’s advantage, making even the worst-off better off than they would be under a more equal distribution.
Barry alternates between three stratagems for underpinning his key, nonredundant principle of “the presumption of equality.” Without prejudice to logical priority, I take “hypothetical agreement” to be the first, “equality as the basic normative idea” to be the second, and “equal treatment of equal subjects” to be the third stratagem.
Barry employs a variant of the contractarian device: principles of justice are those that people in a “negotiating situation” would unanimously accept. All such variants are beset by a common dilemma.
Either the “negotiating situation” is defined in such a way that people are required to ignore the particular features (notably talents, skills, endowments) that distinguish them from other people, and would in prudence cause them to prefer principles different from those preferred by others who are characterized by other features. This is logically equivalent to all participating “featureless” individuals being reducible, for the relevant purpose, to one and the same individual. He, of course, unanimously agrees with himself about principles of justice, as about everything else. But the hypothesis of agreement is then trivial and carries no weight with real people.
Or, as Barry at one point claims for his version, the people in the precontract negotiating situation are real people, in which case they are aware of their capacities and circumstances, strengths and weaknesses. Consequently, they can by and large assess the likelihood that one set of “principles of justice” will serve their prudential interest better than another. (Indeed, the same is true more generally of one non-Paretian social choice rule rather than another.) A procedural rule giving veto power over distribution to the worst-off would prima facie damage the interests of the rich, the able, the industrious, and the thrifty. The converse would be true if dictatorial power were ceded to the best-off instead. Stipulating that “nobody’s interests count [for] less than those of anybody else” (whatever that may mean) clearly does not help: if anything, by awarding equal weight and influence to everyone, it makes it more difficult to reach this kind of agreed solution. Among real people it is unworldly to look for a bargaining equilibrium that could pretend to the Kantian universalizability that Barry, taking Scanlon’s formulation of it as the standard, claims for his “hypothetical agreement.”
Equality as the Basic Norm
We are asked to accept that “the equal claim to consideration of all human beings” is “at the root of justice.” This is not hard to do, since accepting it as it stands does not commit us to anything. To create a specific commitment, “equal consideration” must be amplified. It cannot, for instance, mean that we must accord Donald Trump the same veneration, approval, and respect as Mother Teresa, nor that we should extend the same protection to the liberties of a multiple rapist as to those of his potential victims, for strong arguments can be found against doing so. Barry’s notion, however, must be held to be beyond argument, for or against; he tells us that it cannot be derived from anything more basic than itself.
Barry’s idea must, in other words, function as a final, noninstrumental value neither requiring nor admitting justification. At the same time, it must commit us to an identifiable course of action so that, in the present context, all of us can tell whether the norm it lays down is or is not actually being met. Reading Barry, his only idea that both functions like this and involves this kind of commitment seems to be equality of well-being. Alternatives and complements, such as equality of the range of each person’s available options, are too indefinite.
Declaring this idea to be a final value makes it invulnerable to arguments except those appealing to other, rival, “noncompossible” final values. Thus, it becomes a matter of (if we may put it so) “moral tastes.” It ceases to be a matter of agreement, unless it be the agreement to differ, to non est disputandum. This is a feasible stratagem, and a very safe one. But it fails in underpinning principles of distributive justice; for stating that equality is an ultimate value is one thing, to establish that it is just is another. The two are neither coextensive nor even commensurate.
The third stratagem one can detect in Barry’s argument avoids the dead-end appeal to a final value that it is as rational to embrace as to reject. It relies instead on the generally compelling nature of certain moral precepts. It attempts to derive the proposition that equal well-being is a requirement of justice from the maxim of equal treatment that commands moral beings to treat like cases alike. This is the command of impartiality in justice which no just man can, on pain of self-contradiction, reject.
Impartiality in commutative justice is trivial. It goes without saying in the sense that it is simply a corollary of the meaning of law. Equality before the law is a pleonasm. It insists that “a law is a law”; that it treats equal cases equally, without condoning arbitrary exceptions, is one of its defining features. In distributive justice, however, while impartiality is still a constitutive requirement, not every distribution must be impartial, for not every question of distribution is a question of justice requiring impartial treatment.
It is a question of distribution, but not of distributive justice, that a passer-by gives his small change to the first beggar, leaving nothing for the second; that a woman bestows her favors on one man and not on another; that a patron of the arts accords his patronage only to some artists, and the housewife her business only to some shops, rather than spreading it “impartially.” Cutting closer to the bone, “finders, keepers” denies any place to impartiality between finders and nonfinders in recognizing title to what is found. Bequests are left only to the legatees, to the total neglect of impartiality.
Why do these apparent violations of “equal treatment” fail to strike us as morally repugnant? One reason is no doubt our belief that being the owner of something confers at least some discretion over its disposal. Denial of this would empty ownership of all meaning, and though some would be ready to take this step, it is far from clear that taking it is, and ought to be accepted as, a compelling moral imperative.
In Barry’s scheme, ownership apparently never justifies a distribution. Hence for him ownership could not preempt the requirement of equal treatment. Provisionally, let us take him at his word and argue on his own terms. A second reason is still left then for explaining why apparent violations of impartiality are not always perceived as apparent injustices.
It has often been pointed out (notably by Leoni 1961, 64–66; Berlin 1978, 82–83; Raz 1986, 218 ff.), that equal treatment applies to all cases or all subjects who are members of the same class. It does not apply to nonmembers. Subjects can, of course, be classified in indefinitely many ways. Two subjects are entitled to the same treatment if classified one way, to different treatment if classified another way. In “finders, keepers” each finder gets title to what he found, and no nonfinder gets title to what the finders found. Likewise, the class “workers” is, under “equal treatment,” treated unequally from the class of “nonworkers,” the former justly being and the latter justly not being paid wages. Needless to say, it is all too easy to classify in bad faith: it is equal treatment to concede all power to members of the Politburo and no power to nonmembers, and it is likewise equal treatment to concede a veto over the distribution of goods to the class of the least favored and refuse it to the more favored.
Since equal treatment leaves the justice of a treatment indeterminate, it cannot possibly underpin a particular set of “principles of justice” better than any other set. Finding distributive justice at the end of an argument for equal treatment depends on finding the just division of cases and subjects into classes, and only then on treating the members of each class equally.
The Irrelevance of Distinctions
Salvaging egalitarian principles from the debacle of the equal treatment stratagem involves maximizing the size (minimizing the number) of classes into which we order people for purposes of treatment in distribution. Owner or nonowner, worker or nonworker, clever or dull, sucker or free rider must, for the egalitarian result to come out, all become irrelevant distinctions.2 There are to be only the “adult residents” of the country or indeed, when Barry generalizes the argument, which he finds can be done with “surprising ease,” of the whole world. All must be guaranteed a locally adequate basic income, “adequacy” being presumably judged by the least favored. (They must also all have the same freedom. It is not evident why Barry feels he must separately stipulate this, for in his treatment well-being and freedom seem to merge into one inchoate whole. It is as if for him being free were, to put it unkindly, what our uncles and aunts used to call having “independent means.”)
One need not pursue this argument much further. That equal treatment of such a megaclass as “all adult residents” or “all human beings” should imply a distribution assuring equal well-being to each (subject only to local variations and to a proviso for Pareto-superior, agreed-to deviations) runs counter to many moral intuitions. It is also a repudiation of the most important conventions that have, at least so far, enabled civil society to function. That the quasi-infinity of obvious differences between them should all be irrelevant in judging what each human being should be getting is a demand that has cropped up sporadically throughout history on the fringes of political discourse. It has never gained the status of a moral axiom generally agreed to be compelling. It seems safe to say that, luckily for mankind, it never will.
Maybe justice should never be judged instrumentally; maybe fiat justitia, pereat mundus is the right position to take. Barry would probably do well to take it, so as further to immunize his principles of justice against temptingly easy consequentialist criticism. He does not take it, and he does not believe that his just principles would cause the world to perish. On the contrary, he supposes their policy implications to be highly beneficent.
Why he is confident of this is not obvious, for, as he cautiously puts it, “we can only imagine in outline what a society would be like in which this reform had worked its way through.” Other, perhaps more pedestrian, imaginations would readily conjure up much less reassuring consequences from his proposals. Mine certainly would. But it is not within the proper scope of this paper to match utopian against dystopian imaginations. Once the logic of the principles is taken care of, the policy implications can probably take care of themselves without their having to be tested by rival flights of imagination.
Other principles than Barry’s have for long implicitly guided the Humean conventions at the base of civilized societies and productive economies. They have not served too badly, and except on the fringes of society, they have not passed for unjust. Suum cuique: that each is entitled to what is his by virtue of finding it, making it, or acquiring it by agreement with those similarly entitled; that value received for value given in valid contracts is justly acquired; that freedom of contract must not be denied, and exchanges must not be imposed—these and related conventional beliefs have at least as good a claim to the rank of moral axioms as Barry’s presumption of equality. They are consecrated by long practice.3 They belong among the building blocks of any theory of distributive justice. They are conspicuously missing from the egalitarian one. Their absence, if not their outright repudiation, is the most striking feature of Barry’s attempted construction.
He takes a peculiar position with regard to contract, property, and more generally rights arising from voluntary exchanges. He accepts them as first principles. He notes that they (conjointly with certain others) entail a ban on redistribution. He sees no objection to them, provided they are subordinated to some other “basis on which to establish an economic system.” This other basis is redistributive, and for that purpose overrides the first principles alluded to. But first principles cannot be overridden and subordinated as the occasion demands. They can either be accepted, or are repudiated.
The repudiation is of course entailed in Barry’s notion of justice. Nobody owns the cake to be distributed, nobody has baked it, nobody provided the wherewithal for baking it. If anyone did, they were jolly foolish and imprudent, for they get no thanks for it under the new “principles of justice.” In fact, the world as we know it cannot stand under them. It need not necessarily perish, but it must be totally transformed, to borrow Barry’s phrase, in ways “we can only imagine in outline.”
Property, Usufruct, Income as Public Goods
In this new world, there is no place for property. Barry does not choose to recognize this, and allots a rather squeezed place for it under the proviso that such property as is in private hands has a relatively equal distribution. In strict logic, this proviso cannot be met over time without continuous and unrequited redistribution of property, requiring the administrator of distributive justice ceaselessly to violate with his left hand the remaining property rights that his right hand is meant to uphold. This inconsistency can only be removed by going all the way to full-blooded socialism, a move Barry, for freely avowed reasons, shies away from.
Worse, however, is to come. Putting his principles into practice supposes that “the link between earning and income has to be weakened” by a high marginal rate of tax and, as regards “basic income,” cut altogether. Benefits must be tendentially dissociated from contributions; they must become increasingly non-contingent.4 Both the usufruct of property, and nonproperty income, are to be, to use a technical term, “nonexcludable,” for egalitarian justice would not allow their benefit to be reserved for contributors, i.e., owners and workers, only.
Nonexcludability is generally taken to be the critical feature that makes public goods “public,” and necessitates coercion in calling forth contributions to their cost. In ordinary parlance, the state must tax incomes to pay for public goods. What, however, if the incomes themselves are made to converge towards the status of public goods? Do we then coerce some to make them produce incomes for all? After rejecting “productivism,” how do we get enough production to allow mankind to enjoy the income it is “entitled” to without working for it? Can a society, or the whole world, “be helped out from accumulated savings, contributions from other people”?
The questions are not rhetorical. They are implied in Barry’s theory of distributive justice, and mutatis mutandis in all egalitarian schemes. They require some answer. None is forthcoming that I can see.
[* ]Originally published as “Comment on Brian Barry, ‘Justice, Freedom, and Basic Income’: Slicing the Cake Nobody Baked”; reprinted with permission from The Ethical Foundations of the Market Economy, edited by Horst Siebert (Tübingen: J. C. B. Mohr, 1994), 90–98.
[1. ]In an earlier essay on “Chance, Choice and Justice,” Barry (1991) suggests that the question of personal responsibility, reducible as it is to the question of free will, is an open invitation to endless and inconclusive argument.
[2. ]Seeing society either as one large homogeneous class (or two: the “least favored” and the rest), or as a heterogenous association of many interacting, interlocking, and overlapping groupings, are the marks of two opposing political philosophies. The distinguished previous holder of Barry’s chair ascribes the former view to the “anti-individual,” who is “intolerant not only of superiority but of difference . . . seek[ing] his release in a state from which the last vestiges of civil association have been removed, a solidarité commune . . . from which no one was to be exempt” (Oakeshott 1962, 278).
[3. ]It seems true that the practice is declining. Barry is no doubt right in pointing out that some existing trends in our society suggest “a bleak future.” His detailed diagnosis is, of course, controversial. At least two of the prevalent symptoms of social dysfunction, chronic unemployment and dependency, that Barry treats as arguments for radical reform, seem to me, on the contrary, to be the effects of our progressive abandonment of the old conventions that, in the present text, are loosely associated with suum cuique.
[4. ]Barry suggests not only that income ought not to be dependent on work but—puzzlingly—that it is not. His analysis is said to yield the point that “incomes derived from work are less and less reliable and adequate as a means of supporting the population.” What other, let alone more reliable and adequate, means are there?