Major Contentions

• Dissatisfaction with present economies is expressed as either technical or moral; the technical manipulations that result invalidate appeals to pure capitalism, but that also allows moral questions the means to be considered in economics.
• Market libertarians operate from a moral stance advocating freedom; interventionists may advocate for purely technical tweaks, but these are guided also by moral intentions that empirical science cannot have access to, and a separate set of interventionists argue directly for moral standards to direct economic policies.
• Economists ignore these moral frameworks not because they are unimportant but because they are unquantifiable and concern goods that remain invisible to true science, yet the procurement of these goods is an important moral goal that economics cannot input into its calculations.
• When reformers seek to enlarge economic concerns to the moral realm, they are functionally limited by the principle of ought implies can; this limitation confronts advocates of laissez faire who desire a purity of economic behavior that can never be, but it also confronts egalitarians who desire an absolute equality of degree in distributions or contributions.
• Either side is likely to claim that it takes ought implies can into account, but both are likely to think the other side doesn’t, thereby distorting the debate.
• Without regard to either side’s actual position, a disinterested observer will see the liberty/equality argument in economics as a single spectrum of possible positions and then will have to defend choosing a point on that spectrum that serves her moral intention; and since economics affects public morality, that point must advance the interests of justice.
• Defending that point often begins with arguments for fairness, but when libertarians use the term, they are appealing to their sense of relative merit and when egalitarians use it, they are appealing to an equality of degree, and so the debate falls into irreconcilable confusion.
• Libertarians have every reason to prolong the debate, for our natural preferential freedom favors enlarging everyone’s theoretical freedom of choice so that extant privilege may continue.
• Egalitarians face far greater obstacles; though their argument for social justice and against privilege has gained them some traction, it cannot arbitrate economic rewards so long as relative privilege remains the measure of the offense.
• Historical deprivations, which were founded on group bias, are relatively easy to calculate, but any appeal to fairness today must rely on individual compensation rather than a gross reversal of the original bias, and individual fairness can never be calculated according to relative merit as a moral argument.
• Five factors affect the fairness of reparations: systemic structures, personal deprivations, deterministic deprivations, and moral failures, but these cannot be calculated so as to determine what compensation is fairly deserved by individuals.
• Appeals to human science to arbitrate a solution will fail for both sides: egalitarianism seeks to subject preferential freedom to an empirical determinism it can never determine based on sociology, anthropology, and psychology; libertarians appeal to a preferred paradigm of economics to argue for less government intervention, but because human sciences are inherently faulty, no resolution will result.
• Because fairness always measures comparisons between persons, and since no decisive resolution of such comparisons is possible, it must be abandoned as a moral desideratum in favor of a calculation to a standard of absolute value based upon judging individuals against a standard, rather than comparing individuals to each other.
• That standard must be justice, what individuals are due, and this standard is not compensatory based on past offense but founded upon universal human dignity, which past deprivations have denied.
• Some practical examples follow: the driver who was singled out from other speeders, not in fairness but because he violated the standard; students in an underperforming district sue, not because they lag behind their peers but because the entire district lags behind grade level achievement standards.
• Standards of justice are based on positive law’s applicability to particular experience, but more foundationally on positive law’s coherence with justice itself, for whose sake positive laws are sometimes violated.
• The definitive term in the phrase “equal justice under the law” is not “equal,” for that would establish an equality of degree dependent on fairness, but rather on “justice,” for which a standard must be articulated.
• The same standard applies to the marketplace that applies to the courtroom.
• The tension between equality and equity must be addressed; the standard is enough for a full human life, and when abundance is adequate, then an equality of kind is just, but when economic hardship is widespread, then equity must dominate so that every citizen shares in the deprivation.
• But this tension is moderated by jurisdictional limitations; human rights are universal, but wealthy countries cannot repair institutional deficiencies in poorer countries from the outside, and though haves recognize the equity involved, their reach is limited by the principle of ought implies can.
• A final limitation involves the nature of persons’ inherent human dignity: their preferential freedom allows them to make their own choices, so though government owes persons justice as a human right, citizens still have a moral duty to value it.

Is anyone satisfied with current economic realities?  Criticism takes two forms: technical and moral. Technical objections view the economies of advanced Western countries as machinery that requires tending for proper operation, and they seek to push the right levers in the right order at the right moments to keep the economy running smoothly. Regulating or deregulating monetary supply, interest rates, financial regulation, tax and trade policy, and other quantitative manipulations of fiscal activity can all serve as technical adjustment to increase overall efficiency. Two meta-issues are often overlooked in debates over these tinkerings. The first is that all such manipulations are slaps at the invisible hand of capitalism, invalidating by their scope and ubiquity any notion of a “pure” economy, meaning one governed strictly by market forces. Only a willful refusal to confront the manifold kinds of economic manipulations all post-industrial economies commit could allow anyone to argue for laissez faire. The second framing issue is suggested by the undeniable truth that many persons nonetheless do argue for it, ignoring the facts before their eyes. We may ask why they make that case at all or why governments choose to reconfigure the engine of capitalist enterprise in so very many ways. The answer to both questions will be the same. Economics, like all human sciences, cannot escape the moral intentionality that governs human preference (see “The Calamity of the Human Sciences”). Both intruding and abstaining stem from the same impulse: both sides seek to sway economies to meet what they see as greater goods. Libertarians argue that free markets both further and reflect the circumstantial freedom they prize (see “Our Freedom Fetish”). Advocates of regulated economies disagree and wish to control economic activity in pursuit of social improvement. That goal is not only a healthy economy but an equalizing one that produces a bigger pie and also divides it more evenly. Let us call this moral position an egalitarian one (see “The Riddle of Equality”).

The issue thus shifts to the means of moral judgment that the two sides bring to their dispute. In economics as in all prudential considerations of morality, the first principle must be that of “ought implies can.” Since morality inevitably proposes some end goal worthy of our pursuit, it must choose one that is attainable (see “What Do We Mean by ‘Morality’?”). It does no good to say, for instance, that the economies of agrarian societies ought to outlaw child labor unless some other source of labor or some other economic model can be employed. But this basic rule of moral judgment assaults libertarian and egalitarian ambitions almost immediately.

The first to fail the test must be economic libertarianism. A pure capitalist economy has never existed and never can because economic activity cannot be separated from the laws that must regulate it or from the government that lays claims to and generates some of its productivity . For example, the nineteenth century was a circus of private bank notes worth less than the proverbial continental damn. Sustaining a reliable money supply is but one of the state’s many interventions. Nor can government exist without the financial resources to provide its services, so its existence necessarily distorts economic models while it protects them and produces wealth by its contributive activities. Governments in the United States account for 37% of all economic activity; in most other post-industrial countries, the percentage is higher. Libertarians argue an extreme position in hopes of achieving a modest one: they prefer less interference, but they ought not ask for none because they cannot have it. The question this must pose to them now changes to this one: how much liberty in economies ought to exist?

Pure egalitarians should not take too much encouragement from this setback for their opponents, for they are hoisted with the same petard. Their dilemma revolves around the impossibility of producing their own economic goal: an absolute equality of degree. Even the most casual knowledge of history must demonstrate that all the power of totalitarian states has proved insufficient to impose and maintain such a strict equality. Whether in the early U.S.S.R., the Bavarian Republic of 1919, the Maoist debacle of 1968, or the thousands of utopian communities in the Western hemisphere throughout the nineteenth century, all attempts to equalize outcomes have met with abysmal failure. It seems the natural and cultivated inequalities of persons will not be denied even when cultures insist upon an even starting line. Every gradation of heredity and environment will make itself manifest if freedom  allows it. Egalitarians ought not set an equality of outcomes as their moral goal, for it cannot be achieved. The question that must be posed to them thus changes to this one: how much equality in economies ought to exist?

Both sides are likely to scoff at this appeal to “ought implies can” and say that they certainly realize this truth and simply want to move policy toward their own end of the spectrum. Perhaps. But beyond narrowing the scope of each side’s moral ambitions, clarifying them is important for a second reason: it deconstructs the stalking horses each side sets up to distort its opponent’s position while it necessarily defines its own moral goals. For example, the current debate in the U.S. over socialism is nonsensical since neither side cares to define the economic model it argues for or against. Libertarians portray socialism’s goal as Stalinism on steroids, the first swoop of the slide down the slippery slope to totalitarianism. Egalitarians argue for varying degrees of government control of resources without unanimity and paint current forms of distributive assistance as trivial.  Moving the argument toward the possible and arguing for the morally desirable within the possible seems worth the effort.

With the extremes now cut off from consideration, the debate must move toward some means to arbitrate the moral ought of the issue and to acknowledge governments as the guarantor of its achievement. Consider freedom and equality in the economic sphere as a single continuum. What is the most defensible moral position? How would that point be determined and what would reaching it require? We may assume that each side will argue its position is the right one. How will do they do that?

They will first resort to arguments based upon fairness because what is fair is synonymous with what is just in most persons’ thinking. So let us see how far that argument can carry us.

“Fairness” as an everyday idea implies a simple equality among persons. Every kid at the birthday party gets the same sized slice of cake. So fairness is always comparative among persons. Indeed, it cannot be calculated without such a comparison of one to the other. This would seem to favor the egalitarian who wishes to divide the economic pie like that birthday cake, and if all persons were anonymous kids of equal value, we would not have to recount the many failures of radically egalitarian economies. So thinking of fairness as simply an equality of degree, of the same from one to another, doesn’t seem to survive the test of “ought implies can.” It seems a more nuanced understanding is required. We may attempt a different comparative factor between persons to test the concept of fairness: relative merit. The birthday boy gets the bigger slice of cake. Why is this called fair? Because he is not like the other children. This is his day, and so he “deserves” a larger piece than the other kids at the party. Let us call this the “fairness of deserts” (and in this example, also of desserts). Libertarians smile at this thought, for it confirms their own view that some persons deserve bigger economic rewards than others by virtue of their merits. But this clearly implies that what is fair is anything but what is equal, disputing an equality of degree. So it seems both sides have reason to appeal to fairness to justify their preferred moral point on the economic continuum, but they are using entirely different meanings of “fairness.”  This explains why the argument devolves into an endless dispute over which position is “more fair.”

Before explaining why that argument will never end, allow me to observe that its interminability favors one side, which therefore has every reason to see it continue. In the seemingly endless game of liberty versus equality, liberty has all the cards. An equality of degree is a goal made impossible by human preferential freedom. So long as persons can choose, which means so long as persons are persons, some will rise above others by virtue of their choices. Privilege has every reason to prolong the dispute between equality and liberty, for it can enjoy its advantages while sparring with the opposition and changing nothing. Liberty is always favored in the argument, for persons are always engaging their preferences, always seeking relative advantage. So long as the argument centering on an undefined fairness continues, libertarians will continue winning it simply by delaying its resolution.

Egalitarians have recently begun fighting back under the banner of “social justice.” They argue, correctly, that libertarians were unconcerned with earned rewards when they deprived whole groups of persons of economic opportunity in the name of some bias that was grossly unequal. They seek restitution and restructuring of social capital and rewards, arguing with complete accuracy that what disadvantaged their fathers continues to disadvantage them and their own children, just as unearned privilege continues to benefit the scions of wealth in ways big and small. That argument may move the needle, but it will fail no matter which meaning of fairness it relies upon. While a social justice appeal calibrates the offense perfectly— something it can do because of the gross offense of group deprivation — it can never calculate a fair remediation.

Here is why. In a democracy, group remedies like the group prejudices that seem to require them must be unfair because they ignore what is due to the individuals involved. The attempt to calculate deserts at that granular level must fail. The problem always comes from seeking the phantom of fairness because both sides equivocate on whether they think of fairness as equality of deserts or degree. In protesting past prejudice, egalitarians appeal to equality of degree, which is clearly one conception of fairness and it perfectly captures the wholesale group bias that hurt one side to advantage the other. What could be fairer than to rebalance the scales by reversing the same measures? But in seeking remediation, they also veer into the deserts meaning of the term to argue that deprivations to persons ought be remediated in the same way. This provides an opening for those who oppose them, who argue — by the same logic of earned rewards — that any group rebalancing must be unfair to the individuals involved since past, present, and future economic disparities vary so drastically that any attempt at an equality of degree will fail to balance the scales for the groups.  Further, such an attempt will impose gross violations of earned rewards upon the individuals involved. It is important to note that the comparative nature of fairness requires us first to estimate parity among those being compared before possibly calculating the mitigating factors of earned rewards, particularly in issues that can be as finely quantified as economics. That calculation might be possible in technical adjustments, but it can never be true of the moral ones that seek to locate that point on the economic continuum between economic liberty and equality that is most fair. Five factors necessary to calculating it simply cannot be known.

Let us call the first and broadest factor systemic. Egalitarians cite the unfairness of the social, legal, and cultural institutions and societal structures for those who are or were deprived or advantaged or who inherit the warped frameworks that perpetuate unfair economic rewards. These kinds of calculations are both historical and contemporary and their implications monstrous. Redress might be thought possible because the discriminations that produced them were also systemic and so may be thought amenable to a similar group response in remediation. This is the argument of slavery reparations and racial affirmative action efforts as well as of minimum wage laws and economic assistance to the poor.

But when we start adding and subtracting so as to determine systemic exploitation and deprivation, we find other considerations quickly rear their heads, and these have to be factored in if a fair outcome for the members of the group is to be achieved. The effects of Jim Crow laws on persons of color are accessible because they targeted groups, but what about the rippling effects to the familial circles of the moral bullseye for those deprived and those advantaged (see “The Moral Bullseye“)? A simple example should suffice to make the point. Consider the relative wealth of white families versus families of color based purely on equity in their homes. Before World War II, New Deal efforts at urban renewal were achieved in part through public housing, pushing second generation descendants of slaves who were already discriminated against and suffering the legacy of slavery into urban renewal projects. After the war, the VA and FHA mortgage financing agencies monitored by the U.S. government allowed white veterans to build in the burgeoning suburbs while loans to black citizens were actively discouraged or denied. Their homes became a stable source of modest wealth for white families to meet their families’ needs that history, prejudice, and government policy denied to black families.  Racist governmental policies were furthered in the private sector by hundreds of thousands of homeowners who violated equal housing laws well into the 1970’s to avoid selling to persons of color. These actively racist behaviors continue to this day in the re-segregation of schools and neighborhoods, and their effects linger in the differences in total family wealth for whites and persons of color. Calculating an equality of degree would compel us to ask how we must factor in the tangential and generational effects equally disparative. But this calculation must also consider the degree to which advantaged persons in these groups contributed to their own advantage just as we must consider disparative effects on those denied. All those privileged veterans paid their mortgages and cared for their property. Aren’t these also to be considered systemic effects of fairness calculations that must affect what groups are due? How can systemic factors be balanced on the scales of comparison of one side to the other at the level of group privilege and disparity unless these are factored into considerations for each group? And if we cannot calculate the degree of harm or benefits to groups even at this scale of magnitude, how could we ever calculate systemic disparities for the individuals within the groups under examination and the earned rewards they are entitled to?

Once we begin looking at even the most blatant institutional prejudice against groups, individual factors like these are seen as clearly affective. We’d have to work in the crippling effects of illness, age, infirmity, and simple fortune, some percentage of which result from the disparity producing advantage or deprivation, for these factors surely influence the degree of harm or advantage from systemic factors and are hardly distributed equally. But these then must introduce even more individual attributes that collectively affect preference that surely cannot be tabulated. Call all of these personal issues that variously affect all members of each group under consideration in incalculable but real ways. These are the slings and arrows of personal circumstance.

But when we start calculating such individual and personal factors, we have to consider how they influence the defining quality of the human person: her preferential freedom (see “The Essential Transcendental Argument“). What effect does systemic economic inequality have upon persons’ view of the world and its possibilities, her view of the dominant culture, of legality, the value of education and work in an environment in which her success either would not be recognized or would be overcompensated ? Wouldn’t this compel us to figure in the total X factor of deterministic causation so beloved of the human sciences whose theories try to explain motivation and mental processing?  We ought not reward or punish persons for behaviors they are not responsible for. While nature and nurture work their influence on preferential freedom, no one now living can calculate it or correlate it with other causal factors, yet no one can deny that it exerts an influence. It is presently unknowable, though that truth is obscured by the pretensions of sociology and psychology. No human science can explain individual human preference or the factors that influence it and without that sum, no one can calculate equalities of either degree or desert.

Then add that some persons suffer the kind of preferential failures that used to be called sin, the domination of virtue by vice. Contemporary moralists are unclear on the relation of preferential features to determinist ones, though any identity politics must favor determinism and deny personal self-creation. They are correct to charge privilege with thinking itself virtuous for unearned advantage, but how is the effect of that on preference to be fairly calculated? Isn’t a sense of privilege as cultural determinant in their schema as deprivation? Call these moral issues, but remember to relate them to the deterministic, systemic, and personal factors that may affect, cause, or be distinct from them.

If the effects of systemic, personal, deterministic, and moral factors are individually unknowable, then surely the final factor produced by their interactive effects must be beyond not only our calculations but even our imagining.

These five factors limiting the calculation of fairness of degree or deserts are hardly exotic. We all see them playing out in our own lives, so why do egalitarians seek an equality of degree that can never be achieved nor even calculated by means of an appeal to fairness? And why would libertarians seek a balance of earned rewards when they can no more fairly calculate the extent to which they have been earned than their opponents can calculate the degree to which they have been deprived.  No one can do that. Libertarians sense the moral maze that appeal puts us all in. Economic fairness can never be found by even the most careful consideration of individual merit, and while egalitarians attempt the impossible task of calculating it — or of ignoring it for the illusory simplicity of an impossible equality of degree — privilege continues its traditional exploitations, resisting reform in defense of a moral standard no expert can conceive and no government can achieve.

The human sciences have tightened this Gordian knot by pulling on both ends of the line. Egalitarianism as a moral position is deeply indebted to the pretensions and fallacies of the social sciences that seek to subject preferential freedom to an empirical determinism it can never accept (see “The Determinism Problem“) in the name of science. Egalitarians are deeply invested in the sociological and psychological sciences for their dreams of an absolute equality in the tradition of St. Simon and Marx, seeking the empirical key to unlock the mysteries of human motivation and behavior conducing to a perfectible — which is to say directable — human nature. This is a chimera gradually dispelled over the twentieth century, yet still an active possibility in the popular cultures (see “The Limits of Empirical Science”). Libertarians turn to a different social science for their moral preference: Adam Smith’s invisible hand which works best when allowed to wave its magic wand freely. This illusion is likely conjoined in the libertarian mind with naked self-interest that benefits from it. It moves libertarians to return to arguing that morality ought to play no part in economics, that it is moved by unseen forces beyond human preference and knowledge and therefore beyond human control. This position is bolstered by the pretensions of economics as a putative science, one tenet of which is that it must be blind to anything beyond quantitative judgment, which conveniently shuts off considerations of morality. But this view, like nearly all of twentieth century social science, reflects an intentional myopia. It is not that moral issues do not affect quantitative economics but rather that their effects cannot be measured by the limited capacity of the economist’s metrics. It is not surprising that the combined pretensions of deterministic sociologists’ theories opposing deterministic economists’ ones have deceived us into imagining that a comparative calculus of fairness is empirically determinable. And given the broad failures of the human sciences, perhaps less surprising still that the issue has now fallen into endless dispute.

We can untie this knot by clearly seeing how government handles its less contentious moral duties (see “Justice Is Almost Everything”). In its retributive function, government theoretically does give persons what they are due: equal protection before the law. Every person is entitled to the same degree of justice, so why cannot this same goal apply to government’s duty to distributive justice? Persons at trial are supposed to receive what they deserve in court.  Other than to stipulate that some of the same failures to gauge comparative fairness plague retributive justice, producing doubts about the impartiality of the justice system in toto, we can agree that an equality before the law is indeed the ideal of retributive justice, an aspect of government that willingly accepts the inescapable moral nature of its pursuit, even though that acceptance must emphasize its depressing failures to deliver consistently what it promises. Still, I hope it is clear that in retributive as opposed to distributive justice, the moral goal is quite clear.

To this point, I have made no real distinction between fairness as an equality of degree or deserts and justice, defined as “granting to each person what she is due.” Allow me to establish that crucial distinction now, one that will break the impasse that resorting to fairness has created. Whereas fairness can be said to seek a comparative balance between persons or groups of persons relative to initial status or earned rewards, justice seeks only to deliver some earned entitlement irrespective of what other persons receive (“Toward a Public Morality“)_. When we say the birthday boy deserves an extra large piece of cake, we are appealing to justice even if no other children are sitting at the table. It is his due, a product of some quality or accomplishment that grants the entitlement. Fairness places persons on the scales, whereas justice places a standard on one scale and an individual on the other. In this way, justice somewhat resembles the “earned deserts” meaning of fairness but with a crucial difference in where one seeks the deserts one is entitled to. In fairness, it is inevitably other persons, a perceptual and necessarily relativist standard. If everyone at the party gets a half slice of cake or two slices, the allocation will be considered fair. If the birthday boy’s share is set at twice what other kids get, then he’ll get one slice or four. But justice looks at what is due by a standard that is clearly enunciated and explicable. We say, “In our family, the birthday boy always gets a huge slice of cake.” Everyone understands why and no one at the table can complain, for they all accede to the standard.

What difference does this distinction make in real life? Consider some examples to illustrate it.

The driver protests to the judge that his ticket is unfair, that many others were also speeding. The judge agrees, but rules that the speeder violated justice anyway, whether everyone was speeding or whether no other drivers were on the road. Clearly, not every driver in this example receives the same degree of justice, for the driver’s ticket is manifestly unfair when compared to other drivers. So are egalitarians incorrect when they say everyone is entitled to an equal degree of justice under the law, or is the judge correct in claiming the driver’s ticket to be just?

Parents of underfunded schools sue their district because their children are barely literate when they graduate. The opposing lawyer argues that all schools in the district perform at the same level, so no comparative injustice can be demonstrated since economic support is distributed to all students to the same degree.  So are libertarians incorrect in arguing that an equally bad education cannot be considered unjust, or are the parents correct in insisting that the district is unjust to their children?

These examples appeal to the standard of the courtroom for a very good reason. Retributive laws publicly claim to deliver not fairness but justice. Courts must consider every permutation of ordinary life and somehow find what is just for each person’s undistilled experience, must provide what they are due. The standard that defines it has two components. Each case, of course, aims to distribute to each party what the law establishes, putting the legal standard on one scale and the persons’ actions on the other. But beneath the enormous complexity of statutory law, we may seek a more global entitlement in the courtroom as well. Citizens are not only entitled to civil justice but to moral justice in itself, not justice in this one case but justice per se. In saying that, are we merely saying each citizen is due what she is due, that the second entitlement is no different from the first? Clearly not, for we may observe that persons may be judged correctly according to positive law and still not receive the justice they are entitled to, as was the case in the Nuremburg Decrees of 1935 or the Jim Crow laws of the South after the Civil War. So some difference attaches to the two standards, some obscurely moral standard of what is due that may tilt even the scales of civil rule (see “Civil Disobedience”). Whatever it is, it seems due to each citizen not relative to circumstance but as a universal entitlement. It is their due. But since it is not their birthday and since retributive law requires nothing of citizens for them to seek recourse to the justice it provides, we ought to ask what entitles them to demand it accommodate them.

It might seem that the goal is fairness relative to what other persons receive in the spirit of an equality of degree before the law. Certainly, each citizen is entitled to equal justice. But can we say with the School Board that the standard for that justice is relative to what other citizens receive, that appeals courts issue rulings based on polling lower courts’ decisions for majority opinions? It seems rather that appeals are based on comparisons to standards set by statute and if by precedent by the fidelity of precedent to statute. Only after that task is completed can mitigating factors such as comparative treatment be considered as secondary elements of each case. Though far from adequate in its present application, this ideal is worth the pursuit, for it is not based on an impossible equality of degree that binds law to context in calculations of fairness, with judgments of one defendant inevitably affected by treatment of every other one, each knotted into unique circumstance and inextricable from the five factors affecting fairness mentioned earlier. Retributive justice instead relies on an equality of kind, seeking categorical distinctions into which to place the individual’s experience: civil law, criminal law, felony, misdemeanor, tort, assault, battery. These distinctions dictate the kind of law applicable to situation and limit the options by which to judge it. They are employed prior to examinations of the details of the case that might affect case law pertinent to them. The person is placed on one scale and the standard upon the other. Defendants are not compared to others but to the law relevant to her own supposed offense, all in a moral quest to grant them their due. Fairness is not a primary factor at all.

How are these standards developed? To what do they appeal? What qualifies them as just? The standard by which they are or in the ideal ought to be measured against is simple: they define what persons involved in retributive justice are due. The defendant is entitled to face her accuser, to have expert representation so as to navigate all the standards of conduct and proof pertinent to the courtroom (see “Expertise”). Charges against her are admissible by standards of evidence that are strictly enforced, as is the testimony of witnesses and her own mode of defense against the charge. All standards of law are or ought to be based upon what is due: to victims, perpetrators, and to the citizenry that endow the entire apparatus. On what grounds can the individual claim to be entitled to this very rigorous, very complex, and very expensive standard of treatment? Of course, we may say it is the law, but this is a dodge, for laws themselves must be judged against a prior standard of morality that permits them. Otherwise, we would have no cause to change them or defend them beyond ink and paper, and this point applies as clearly to constitutions as it does to the most trivial misdemeanor (see “Foundations of the Law: An Appetizer”). If we concede that something in the individual merits that entitlement, again without comparison to others, we come closer to the truth of the matter (see “Natural and Political Rights”). But that truth takes us further away from comparative calculations of fairness.

When we turn from retributive to distributive justice, the same requirements attach to the issue. What equality of kind do individuals merit without regard to other citizens? Does it matter that distributive justice concerns goods that others may procure for themselves, introducing an inequality of degree and perhaps a violation of fairness, into the issue? I hope it is clear that the nature and extent of that claimed violation is simply unknowable.

What is knowable is that the same equality of kind is necessary for citizens in economic life as it is in their legal lives. The second and categorical standard of justice in the courtroom operative without regard to other persons or context is inextricably tied to what persons are entitled to as persons. The standard defines a human right. A government produces justice when that human right is encoded as a civil right and made into law (see “Preliminary Thoughts on Civil Disobedience: Natural Rights Issues”). This recognition has economic costs. It is worth noting that the judicial system is taxpayer supported, though a minority of citizens will ever make use of it. What justifies the expense to those taxpayers who do not seek the justice retributive and distributive services provide?  Both are tied to what persons require to live the fully human lives they are due (see “Needs Anchor Morality“). Civil justice is required for strangers to interact in the public sphere, for them to flourish in their private pursuits. The same ought to be said for economic justice, defined as the delivery of the equality of kind necessary for persons to meet their economic needs. It is certainly true that fairness cannot be defended in this procurement. Some citizens need no distributions of economic goods beyond the retributive and contributive justice they are entitled to. With the assistance of those they love, they can provide for their own economic needs, yet they still need a just retributive and contributive system to assist them. Others need much more assistance, some nearly all. But while admittedly fairness cannot be defended in these cases, it also cannot be defined, so it is always a useless comparative standard. What is constant and eminently useful is the existence and extent of citizens’ economic needs, for human needs are both identifiable and limited, defined by the minimal baseline required for persons to live fully human lives. An equality of kind in retributive justice entitles all persons everywhere to a judicial system that protects their civil rights. Every person deserves this justice equally, but the entitlement derives from the human dignity and responsibility that requires it, not from its quality of its delivery to other citizens. An equality of kind in contributive justice entitles persons to engage in cooperative projects with strangers that allow them to fulfill their needs: to acquire skill and knowledge, to maintain health for themselves and those depending on them, and, not incidentally, to produce wealth. Libertarians rather wish to ignore all that. Seen in this light, it is accurate to say that all justice is distributive: government’s sole job is to distribute justice in three arenas: contributive, retributive, and distributive. That requires it to distribute to citizens their contributive goods, those cooperative projects that allow them to function fully, and also to distribute retributive goods that dissuade or punish those who would interfere with that full function. Finally, it requires it to distribute economic justice as an equality of kind to all citizens.

Perhaps because of a mistaken conception of fairness as the metric of distributive justice, libertarians complain of having to pay for others to procure what they procure for themselves. But the same is true of the other two duties of civil government. Not everyone uses the interstate highways or the court system, calls the fire department or visits the national parks, yet we all pay for them. Libertarians will object to a progressive income tax or estate tax as a form of theft, arguing that they have no duties to those outside their circles of love. That is a clear error, unless they wish also to relinquish all the retributive protections and contributive projects that they take advantage of from their first breath to their last. Government can provide only a small number of these goods, but for that small number, nothing else can, and everyone is entitled in justice to their adequate delivery. Egalitarians will ask for more than the equality of kind, the minimal baseline necessary for flourishing and conducive to human dignity. They will argue that obscene wealth is inherently unjust because it is unfair, but so long as everyone in a polity has enough, a sufficiency, on what grounds can they argue for a fairness of allocations they could never determine? This economic baseline might be considered a moving target of ever increasing entitlements, but since human needs are inherent and invariable, such an inflation would reflect an excessive focus on a comparative equality of degree, on fairness, just as surely as would the complaints of the super-rich, a return to the endless and futile round of degree versus deserts.

Two obvious objections must be addressed. The first is the tension between equality and equity. Extreme wealth is only defensible to justice if everyone has the equality of kind that distributive justice requires. Wealth then can be framed as libertarians always wish to frame it: as fair reward for superior accomplishment. It is a meaningless argument like the kind children have about their size of their slice of cake, but if libertarians wish to make it, let it be made only when a sufficiency of resources allows an equality of kind. In advanced economies, that is generally the case, but when economies falter as they did in the U.S. in 1929, then deprivations ought to be shared according to the equal dignity founded in persons’ preferential agency and its accompanying responsibility. No justice is possible in such a situation because individuals lack the equality of kind that delivers it. This is clearly an unsatisfactory response, but less of one than the present situation in which some wallow in wealth while their fellow citizens lack the resources to live at all. This description pertains also to the half of the world living in poverty and in disparity today, with an important exception. The principle of “ought implies can” reminds us that civil justice requires civil institutions and the sanction of citizens to support them. Advanced economies can do a great deal to assist struggling ones, but they cannot eliminate the injustices that an inequality of kind produces in poor countries, nor can they do more than work at a distance to model and support justice indirectly.

This limitation grates on the conscience of persons of good will as it does on persons whose religious morality moves them to expressions of universal love and the duties it implies. This compassion or empathy is too often proposed as correct but empty sentimentalism (see “Empathy: A Moral Hazard”). It is an obvious violation of morality because it fails to meet the standard of “ought implies can.” It is comparable to giving a homeless person a few dollars, a comfort to conscience but hardly a satisfaction to justice. The homeless in advanced economies, like the homeless in impoverished ones, deserve far better, are entitled to far more, an equality of kind that produces economic justice. We can repair that injustice only for our fellow citizens, not for the rest of the world, and because we ought to do what we can, justice moves us to act. Serious interventions beyond our borders are possible and worthy of praise as gestures and a nod to justice if not the real thing, given the limitations of what context allows.

And this introduces the final word on economic justice. What entitles persons to its procurement is their human dignity, their felt preferential freedom to pursue truly moral goods, meaning those that meet the moral end of human flourishing. Irrespective of economics, it should be obvious that this moral duty is neglected by persons nearly as often as it is pursued. The natural freedom that opens choice to moral preference is the seal of our humanity, and it cannot be denied without damaging it. Calculations of fairness based upon systemic, deterministic, personal, and moral factors cannot be successful and will violate justice. The universal needs that define human rights are non-negotiable, but most of them are not the provenance of government, and even those that are must respect the preferential freedom that creates the dignity, the entitlement, and the moral responsibility that accompanies it (see “Functional Natural Law and the Legality of Human Rights”). Justice requires that persons have what they need as a human right, but no government or social entity can guarantee that persons will choose what they ought. Justice owes persons what they are due, but citizens still have the moral duty to accept it.