20th WCP: A Humean Theory of Distributive Justice for a New Century

Introduction

I claim that an attractive theory of distributive justice can be constructed by blending David Hume's ideas about the origins and purposes of justice with Ronald Dworkin's insurance-based justification for his equality of resources model of distributive justice. The resulting theory—less egalitarian than Dworkin's and more liberal than Hume's—recommends adopting an entrepreneurial welfare state..

Hume on the Human Situation

Hume begins his account of the origins of justice by observing that animals tend to fit into two categories: either they are lion-like, having substantial needs and great resources with which to satisfy those needs, or they are sheep-like, having little in the way of abilities to satisfy their needs but also having correspondingly few needs. All animals have abilities and capacities sufficient to fulfill their needs. Both lions, with their prodigious appetites and means of satisfying those appetites, and sheep, with their modest appetites and modest means of satisfying those appetites, could survive on their own in the wild.

But humans, Hume claims, are quite different. Like lions, we have substantial needs. But like sheep, we have little in the way of natural attributes upon which to draw in fulfilling those needs. Now, give the lion with its voracious carnivorous appetite the body of a sheep and one would not expect it to survive. But humans have survived. How so? Here is what Hume says:

'Tis by society alone he is able to supply his defects and raise himself up to an equality with his fellow-creatures, and even acquire a superiority above them. By society all his infirmities are compensated . . . and . . . leave him in every respect more satisfied and happy, than 'tis possible for him, in his savage and solitary condition, ever to become. When every individual person labours a-part, and only for himself, his force is too small to execute any considerable work; his labour being employ'd in supplying all his different necessities, he never attains a perfection in any particular art; and as his force and success are not at all times equal, the least failure in either of these particulars must be attended with inevitable ruin and misery. Society provides a remedy for these three inconveniences. By the conjunction of forces, our power is augmented: By the partition of employments, our ability encreases; And by mutual succour we are less expos'd to fortune and accidents. 'Tis by this additional force, ability, and security, that society becomes advantageous.(1)

Wild Uncultivated Sex, or How Society Arises

"[I]n order to form society, 'tis requisite not only that it be advantageous, but also that men be sensible of these advantages" yet "'tis impossible, in their wild uncultivated state, that by study and reflexion alone, they should ever be able to attain this knowledge."(2) We lack the capacity to survive without society and we don't know that only by society can we get what it will take for us to survive. We are in the situation of a visually impaired person who can survive only if she puts on a pair of glasses but now has no way of knowing that putting on a pair of glasses will enhance her vision and hence her chances of survival. So, how did it come to pass that we formed societies which enable a naturally inferior species to come to dominate the rest?

Hume's answer, which he calls the "more obvious remedy, [which] may justly be regarded as the first and original principle of human society", is "no other than the natural appetite betwixt the sexes, which unites them together, and preserves their union".(3)

Pre-societal humans first start forming liaisons for sex, and these liaisons endure so that they may have more sex. This in turn leads to children and, since people perceive that raising their children—something each parent wants—is more easily accomplished by two parents than by one, they stay together.(4) In the end, children are raised by parents (who like them) and the children (having tender minds) see the benefits they may reap from society. Furthermore, growing up in a family rubs "off those rough corners and untoward affections" which children might have.(5) Consequently, by the time they become adults they both can see the benefits of society and are more sociable adults. Such people form rudimentary societies (perhaps they play with other kids) and then (hormones kicking in) they start to be attracted to one another and, the next thing you know, they are having and raising their own kids. Thus far Hume's story seems to be that "the circumstances of human nature render an union necessary," and that "the passions of lust and natural affection may seem to render it unavoidable".(6) So, society is, for humans, both necessary and unavoidable.

But, alas, that is not the whole story, for at this point Hume claims that there are other characteristics of both "our natural temper, and our outward circumstances which are very incommodious, and are even contrary to the requisite conjunction" needed to form society. First, most of us care only for ourselves, our relatives and our good friends. Others mean little to us. The narrow range or our benevolence would not matter very much "did it not concur with a peculiarity in our outward circumstances, which affords it an opportunity of exerting itself".(7) This peculiarity consists of the fact that we possess only three species of goods, these being

"the internal satisfaction of our minds, the external advantages of our body, and the enjoyment of such possessions as we have acquir'd by our industry and good fortune. . . . The last only are both expos'd to the violence of others and may be transferr'd without suffering any loss or alteration; while at the same time, there is not a sufficient quantity of them to supply every one's desires and necessities. As the improvement, therefore, of these goods is the chief advantage of society, so the instability of their possession, along with the scarcity, is the chief impediment.

In vain shou'd we expect to find in uncultivated nature, a remedy to this inconvenience; or hope for any inartificial principle of the human mind, which might controul these partial affections and make us overcome the temptations arising from our circumstances . . . ."(8)

Hume goes on to observe that,

"The remedy, then, is not deriv'd from nature, but from artifice; or more properly speaking, nature provides a remedy in the judgement and understanding for what is irregular and incommodious in the affections. . . . This can be done after no other manner, than by a convention, enter'd into by all members of society to bestow stability on the possession of these external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry".(9)

Hume's Principles of Justice

Hume holds that the principles of law and justice appropriate to a society of humans, animals with lionly appetites and sheepish powers are: "the stability of possession . . . its transference by consent, and . . . the performance of promises. 'Tis on the strict observance of these three laws, that the peace and security of human society entirely depend". Hume further states that these "laws, however necessary, are entirely artificial, and of human invention; and consequently that justice is an artificial, and not a natural virtue".(10) Beyond that Hume has very little to say about what principles of justice would best serve to overcome the three inconveniences which afflict us in our savage and uncultivated condition.

Returning to this actual world

Every theory of justice holds that society should enhance our efficiency, permit our talents to flourish, and make us more secure. And most credible theories of justice hold that property, the market, and promising are valuable institutions for securing these ends. This much everyone accepts from Hume. The question remains, what system of property, what market arrangements, and what support for promising are the best for securing the ends Hume has identified.

Grant arguendo that market economies best enhance productivity and nurture talents and focus on security. Absent society the costs of failure are so severe people must be unduly cautious.(11) Entrepreneurial ventures which, except for the fact that their failure leads to disaster, would otherwise be rational gambles must be forgone. Society acts as insurance against such failures, both by reducing the likelihood of failure and by reducing the costs associated with failure. In society ventures which would otherwise be too risky become rational gambles and the associated positive externalities are reaped by other members of society. It would make sense then that the better a society provided for such security, the better the society.

Grant that whichever principles will best serve to overcome the inconveniences Hume has identified are the principles that we should adopt. Consider how we might deal with people who fail to keep their promises, particularly promises concerning property. What should we do with people who cannot pay their debts? You transfer some property to me now and I promise to transfer to you some property of mine later. But later I have nothing to transfer to you. What is society to do with me? Society must penalize me to preserve the conventions of buying and selling. But what penalty? One possibility is that we allow you to seize my property. But what if I have none, or an insufficient amount to cover my debt to you? Well we could put me in the Poor House. Or we could allow me to declare bankruptcy. Clearly, a Humean must choose one of these alternatives (or some related option), for otherwise the whole point of having society is lost. But which alternative? Hume seems to have thought that this choice just like choosing which side of the road to drive on: it does not matter which we choose as long as we all coordinate to drive on the same side. But in fact this choice is not like that at all, for some of the coordination solutions are much better than others.(12) For instance, almost every economist will tell you that, in terms of enhancing our security, the introduction of bankruptcy laws to replace the Poor Laws which preceded them was a substantial improvement from the point of view of the law-abiding citizen.(13)

How should we choose social arrangements which best serve to enhance our "force, ability, and security"? Obviously, only those arrangements which meet Hume's "three fundamental laws of nature, that of the stability of possession, of its transference by consent, and of the performance of promises", are going to be acceptable for "'Tis on the strict observance of these three laws, that the peace and security of human society entirely depend; nor is there any possibility of establishing a good correspondence among men, where these are neglected." But among the many alternatives which include these three fundamental laws we ought to make educated decisions about which will best serve to enhance our "force, ability, and security".

Hume and Equality of Resources

Adam Smith held that we enhance our force (in the sense Hume is using that term to mean productive capacities) in the same way that Hume held we enhance our ability, by specialization. Markets, through a division of labor, work (via their invisible hands) to maximize the productive efficiency of each individual. Yet, alas, free market societies are not the most secure places for, (what might otherwise be) relatively minor failures can still lead to misery and ruin. Ideally, then, we would find a system that would strike a better balance between enhancement of our force, our ability, and our security—an arrangement that would increase our security without threatening the enhancements to our force and ability. I suggest that a modified version of the hypothetical insurance scheme used by Ronald Dworkin in his equality of resources account of distributive justice best serves this purpose.

Dworkin's argument for equality of resources begins with the idea that each person is worthy of being treated by her government with equal concern and respect.(14) In non-economic areas, he argues, this requires both democracy (as the best means of ensuring that each has a roughly equal say in policies adopted by her government) and constitutionally enshrined civil rights protecting citizens (from those democratic actions which are most likely to involve not treating each with equal concern and respect).(15) Dworkin's argument for social welfare provisions—we might say rights against the market—is analogous to his argument for civil rights protecting us from the excesses of democratic majoritarianism. First, he argues that the market is a good way to treat people as equals. Then he argues that because it is nevertheless not perfect in this regard, people need rights to welfare in order to protect them in those cases where the market treats some with less than equal concern and respect.

The market is a good device for showing people equal concern and respect because it prices goods and services according to how much others have to give up, in terms of their values in order to permit others to consume those resources. Equality of resources provides "that people should pay the price of the life they have decided to lead, measured in what others give up in order that they can do so" and the best device for doing this is the market.(16) But despite its virtues, the market (like democracy) does not always treat people with equal concern and respect. Even if we (magically) had an equal or fair distribution to begin with, the market would soon generate inequalities. Now, some of these inequalities are perfectly compatible with equality of concern and respect. I prefer immediate consumption while you make your resources available for others who pay you for using them and soon you have more than me. This inequality is quite proper. But others are not. If I lose all my resources—not because I made bad gambles in the stock market but because chance has hit me with a debilitating and expensive disease—then, in a pure market economy I will soon be suffering from misery and ruin. Because allowing those who are struck by brute bad luck to bear the costs of that luck alone would be to treat them as less worthy than those who were more fortunate, and because this is the way the market treats such individuals, governments concerned with equality will, according to Dworkin, grant people welfare rights against such bad luck.(17)

But to what level should people have welfare rights against brute bad luck which might damage them in the marketplace? We must be careful not to set the level of welfare rights too high, for the fortunate are those who must pay the costs of providing for such rights—and we don't want them to be unfortunate because they were so fortunate. But at the same time we must not set the level too low, for the unfortunate do need assistance to overcome their misfortunes. The device Dworkin uses for setting the appropriate level of welfare rights is a hypothetical insurance market. He tells us to ask what risks would a rational person buy insurance against, given the real costs of such insurance. It is to that level of support that people should be granted welfare rights.

It is difficult to ascertain how much insurance rational agents would purchase prior to entering a free market society and how the presence of the welfare rights thus purchased would diminish or enhance the productive capacity of free markets. Even supposing that social welfare provisions reduce the capacity of markets to produce great wealth does not show that an entrepreneurial welfare state—one which fosters a robust market economy through the protection of private property rights and which encourages its citizens to make entrepreneurial ventures into that market secure in the knowledge that, should they experience "the least failure", they will not be met with complete "misery and ruin"—is not the best option. On a Humean view of things there are competing values here—the desire to enhance our power (best attained by a market economy) and the desire to increase our security (best provided for by welfare rights). The entrepreneurial welfare state recognizes these competing values and balances them by organizing its economy to both enhance our productive capacities and increase our security. Things Hume (should have?) held were the point of society.

For these reasons that contemporary liberal Humeans should favor the sort of entrepreneurial welfare state advocated and defended (albeit along non-Humean lines) by Ronald Dworkin's equality of resources. (18)

NOTES

1. Treatise, page 485.

2. Treatise, page 486.

3. Treatise, page 486.

4. Indeed, absent a lot of societal support—which in the circumstances we are discussing is out of the question—raising a child by oneself is impossible. Having sex and raising children are both activities which Hume thinks it takes two adults, one male and one female, to do well.

5. Treatise, page 486.

6. Treatise, page 486.

7. Treatise, page 487.

8. Treatise, page 487-8. Hume claims that "We are perfectly secure in the enjoyment of the first. The second may be ravish'd from us, but can be of no advantage to him who deprives us of them." He is obviously wrong about how secure we are in the first species of good. Anyone who has been psychologically tormented knows that we are not "perfectly secure" in the "internal satisfaction of our minds". Hume is just as obviously wrong about the second species of good. The institution of slavery—which Hume knew about—puts the lie to Hume's claim that our bodies cannot be taken from us in a way that is of value to others.. For an interesting account of Hume on slavery, see Clarence Johnson, "Teaching the Canons of Western Philosophy in HBCUs: The Spelman College Experience", Metaphilosophy, Volume 26, # 4, October 1995, pages 413-423.

9. Treatise, page 486. Hume goes on to observe that "This convention is not of the nature of a promise: For even promises themselves . . . arise from human conventions"(490). Hume then discusses the famous case of two people coordinating on the rowing of a boat and points out that conventions to behave in a coordinated and productive way can arise without any agreement or contract. For Hume to show that a feature of society had a rational source—that it serves some purpose other than religion—is to justify that feature. Thus Hume writes that "the rules of equity or justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance." Enquiry, page 188 (italics added). Hume does not say that what justifies the rules of justice is utility. He says that utility is what accounts for their "origin and existence". Hume's remarks on justice, his insightful observations and careful analysis, amount to a description of what we call justice, not a prescription for social arrangements which ought to be instituted. See Nathan Brett, "Hume: Justice as Property", Man and Nature, Volume VI, 1987.

10. Treatise, page 526. Hume calls these the "three fundamental laws of nature".

11. They might not be inclined to maximize their expected utility but to maximin. Indeed, Rawls's maximin rule or Gregory Kavka's disaster avoidance principle might well be recommended as a personal decision rule—or rule of thumb—by the maximize expected utility principle. That is to say, someone in Hume's wild and uncultivated state of nature who was fortunate enough to have a moment's leisure might well decide that in order to survive in a world where "the least failure" "must be attended with inevitable ruin and misery" might well find it rational to be exceedingly cautious.

12. Suppose that we all want to play on the frozen lake. It will be better if we all play the same sport than if some play one sport, others another. And it will be better if all of us play soccer than some play soccer and others play hockey. But, given that it is a frozen lake, surely it will be better if all of us play hockey than if all of us play (ice) soccer. Just as the frozen-lake players want to adopt the best of the minimally acceptable coordinated strategies, we want to adopt those social conventions which best serve the very purposes society is there to serve. As it is by increasing our "force, ability, and security, that society becomes advantageous", we should choose those social conventions which best accomplish this.

13. Of course, having the Poor Laws is better than no coordinated solution. For evidence supporting the claim that some economic arrangements which protect property are better than others examine the accounts of why the United States of America has recently done so well compared with its competitors in new high-tech industries, particularly biomedical technology and software production. Every study I know of points to America's superior bankruptcy laws along with other related factors, such as the ease of raising venture capital in a secure way. Note that other legal devices such as limited partnerships and limited liability joint stock companies serve to make entrepreneurial ventures more attractive primarily by making the failure of such ventures less unattractive.

14. Dworkin's liberal conception of equality states that "Government must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived. Government must not only treat people with concern and respect, but with equal concern and respect. It must not distribute goods or opportunities unequally on the ground that some citizens are entitled to more because they are worthy of more concern. It must not constrain liberty on the ground that one citizen's conception of the good life of one group is nobler or superior to another's". Taking Rights Seriously, pages 272-3.

15. "I wish now to compose the following general theory of rights. The concept of an individual political right, in the strong anti-utilitarian sense I distinguished earlier, is a response to the philosophical defects of a utilitarianism that counts external preferences and the practical impossibility of a utilitarianism that does not. It allows us to enjoy the institutions of political democracy, which enforce overall or unrefined utilitarianism, and yet protect the fundamental right of citizens to equal concern and respect by prohibiting decisions that seem, antecedently, likely to have been reached by virtue of the external components of the preferences democracy reveals." Taking Rights Seriously, page 277.

16. Sovereign Virtue: The Theory and Practice of Equality, page 72, (italics added).

17. We can distinguish between two kinds of luck: option luck and brute luck." Option luck is a matter of how deliberate and calculated gambles turn out—whether someone gains or loses through accepting an isolated risk he or she should have anticipated and might have declined... Brute luck is a matter of how risks fall out that are not in that sense deliberate gambles." Dworkin, Sovereign Virtue: The Theory and Practice of Equality, page 73.

18. The ideas in this paper benefited from comments by audiences at the Atlantic Regional Philosophical Association meetings at Acadia University, the Canadian Philosophical Association meetings at Memorial University, and at the Philosophy Department at Dalhousie University. For extended discussion I thank Nathan Brett, Susan Dimock, Duncan MacIntosh, and Thea E. Smith.