Robert C. Hockett (Cornell University - School of Law) has posted Taking Distribution Seriously on SSRN. Here is the abstract:
It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as "counting" for purposes of socially aggregating and maximizing.
To attend systematically to the inter-translatability of maximization language on the one hand, equalization and identification language on the other, is to "take distribution seriously." It is to recognize explicitly, and to trace the important normative consequences that stem from, the fact that all law and policy are as distributive and citizen-defining as they are aggregative. It is also to recognize therefore that all law and policy treat us as equals in some respects - respects in terms of which they identify and "count" us as politically relevant - and as non-equals in other respects. Attending explicitly to these "respects" brings transparency about the degrees to which our laws and policies identify, "count," and treat us as equals in the right respects.
This Article accordingly seeks to lay out with care how to take distribution seriously in legal and policy analysis. It does so by two means, keyed to the principal guises in which distribution is typically implicated in legal and policy analysis: First, by careful attention to the internal structures of the social welfare functions favored by most present-day legal theorists and policy analysts. And second, by systematic reference to what linguists call the "cognitive grammar" of non-formal distributive language, a structure that mirrors the structure of distribution itself. The payoffs include both a workable method by which systematically to test proposed maximization norms for their normative propriety, and an attractive distributive ethic that can serve as an ethically intelligible normative touchstone for legal and policy analysis.
Lot's of interesting stuff in this paper, which is recommended. Because this paper covers so much ground, I have a number of questions that Hockett may intend to address in subsequent work. For example, Hockett moves quickly through the major options for answering the "equality of what?" question, and leaves some positions off the table: especially noteworthy is his omission of the Sen-Nussbaum capacities approach--which is, in my opinion, the most promising theoretical line on the fundamental question of the proper shape of political equality.
Here is another passage to which I reacted. Hockett is discussing Rawls's theory, justice as fairness, and he argues:
Rawls allows even the matter of “first bests” to remain undetectedly underspecified. We are left wondering whether there’s any “here” here. The theory so underdetermines its own implementation that we don’t know what to make of the theory itself – or, perhaps better put, what to make with it. How much is it actually telling us if it is equally realizable in any number of possible polities with radically divergent property, tort, contract, and other legal arrangements? Put differently, how do we recognize a Rawlsian society upon seeing one?
There is a lot of hand waving going on in this passage. If Hockett means to assert that there are no criteria by which compliance with the two principles could be judged, then his claim is surely false. It is indisputable that a wide variety of actual historical socities and imaginable forms of social organization would not comply with the two principles. Perhaps what Hockett means to claim is that the two principles do not determine even the details of private and public law: if that were his claim it would be true of Rawls's theory, but it would also surely be true of Hockett's own view and every other general theory of distributive justice.
My own understanding of how Rawls stands with respect to private law is as follows. The two principles of justice apply to the basic structure--to the constitutional essentials and other institutions such as the choice of the basic economic structure (socialism, welfare-capitalism, etc.). So long as the basic structure satisfies the two principles, the details of these institutions can vary within broad limits. For example, the institution of tort law would have to be designed so that they were consistent with the two principles. Tort systems that would result in violations of the basic liberties or that would undermine the ability of the basic structure to satisfy the difference principle would be out of bounds, but this would allow for a wide range of variation on matters of detail. The reason such variations are permitted is that the society has satisfied the requirements of justice as fairness: this means that other values, including decisions made through democratic processes and choices made by individuals and communities of voluntary association, take the stage.
So, "how do we recognize a Rawlsian society upon seeing one?" The answer is that we would examine the operation of the basic structure in light of the two principles. Our specific inquiries would include questions like: (1) does the constitution contain all of the consitutional essentials such as procedural due process, liberty of conscience, and an equal franchise? (2) does the basic form of economic organization satisfy the difference principle? If we are satisfied on this score, then the work of justice as fairness has been done. Of course, many important moral and political questions remain, but if Rawls's arguments for the basic structure as subject is correct, then these questions are not questions of distributive justice. Or to put it different, the society is distributively justice however it answers the additional questions.