3. THEORIZING EQUITY IN INTERNATIONAL LAW
3.2 Equity as distributive justice
3.2.1 Definition and justification
Distributive justice is the organization and distribution of resources within a state in a manner that ensures that the basic needs of every member of that society is met.89 This principle favours the redistribution of rights and responsibilities within a society in a manner that ensures that the condition of the disadvantaged is improved. This redistribution is necessary even if it means that those who are well-off bear a disproportionate level of responsibility.
89 John Roemer Theories of Distributive Justice (1998) 1.
35 Although the term ‘distributive justice’ has often been credited to Aristotle, he employed the term in a separate sense from that which it is commonly used today.90 According to him, distributive justice was the distribution of resources in accordance with what each person had merited.91 It was a system which allowed for equality by ensuring that everyone is rewarded in proportion to their merits.92 He differentiates between distributive justice and corrective justice;
a principle which states that a victim of a criminal act must receive some form of damages from the perpetuator of such acts and such compensation must be proportionate to the injury inflicted.93
Aristotle did not view the reallocation of wealth by the state to correct socio-economic inequality as an important part of justice.94 Cicero, on his own part, referred to distributive justice as beneficence. While justice was fundamental and an entitlement of everyone within the society, beneficence, which Cicero referred to as ‘distributive justice’, only applied to relationships between friends, relatives, and fellow citizens, and not to the relationship between the state and its citizens.95 Distributive justice was regarded as a synonym for charity.96 Cicero, like Aristotle, did not view the redistribution of state resources as an integral part of justice or as a duty of the state. Other scholars like Aquinas and Grotius had similar views with Cicero. These scholars differentiated between justice and benevolence or like Grotius called it, the ‘law of love’, and regarded the latter as having a wider scope than justice.97
Adam Smith was the first scholar to popularize the notion that the state had a duty of beneficence.98 Like most scholars before him, Smith differentiates between perfect rights and imperfect rights.99 While perfect rights are generally enforceable, imperfect rights are not.
Imperfect rights are connected to distributive justice, and they refer to the claims made on us by the needs of others.100 However, these imperfect rights vary in their strength and some of
90 Samuel Fleishacker A Short History of Distributive Justice (2004) 19.
91 David Ross & James O Urmson ‘Nicomachean ethics’ in Jonathan Barnes (ed) The Complete Works of Aristotle (1984) 3833.
92 Ibid at 3835; Nikolas Kirby ‘Two concepts of basic equality’ (2018) 24 Res Publica 303; Fleishacker (n90 above) 19.
93 Fleishacker (n90 above) 19.
94 Ibid at 21.
95 Cicero, De Officiis I.20–59, III. 21–28 in Fleishacker (n90 above) 20.
96 Fleishacker (n90 above) 21.
97 Thomas Aquinas Summa Theologiae, II-II, Q 61, A2 in Fleishacker (n90 above) 22.
98 Adam Smith Theory of Moral Sentiments (1976) 277.
99 Adam Smith Of Jurisprudence in R Meek, D Raphael and P Stein (eds) Lectures on Jurisprudence (1982) 9.
100 Ibid.
36 them may become a ‘perfect and complete obligation.’101 It would, therefore, be expected that government would enforce the strongest of these imperfect rights.102
Smith maintains the position that distributive justice is beneficence but proceeds to argue that certain acts of beneficence should be enforceable under the law. With this argument, Smith had taken the idea of distributive justice beyond the general notion of the time.103 His conception of beneficence was, however, limited to certain kinds of relationships, such as the obligation of guardians to their wards, or the obligations shared between neighbours, families and friends, but not shared with a stranger.104
The prevalent thinking became modified by the middle of the eighteenth century. More scholars began to take the position that the state not only had the capability but also had a duty to assist its indigent members; the state was responsible for the redistribution of resources in a way that bridged the space between the wealthy and the impoverished.105 The political groups of that period also began to demand for the need to eradicate poverty and other forms of socio- economic injustice.106 These dominant thoughts and political movements contributed immensely to the birth of the notion of distributive justice, as currently known.
Jean-Jacques Rousseau was one of the scholars whose work made the notion of distributive justice popular. He argued that the problem of inequality should be a legitimate concern within the political system.107 Prior to this time, inequality was restricted to a matter for religious or moral considerations. Rousseau argued that the government had a responsibility to address extreme wealth inequality.108 Rousseau’s contribution in the evolution of the concept of distributive justice was, therefore, in querying the prevalent inequality and insisting that it was an issue not just for the moral and religious sphere but also for the political sphere.109
Like Rousseau, Adam Smith also questioned the idea of poverty. Smith was, however, more concerned with the impact which the difference between the wealthy and the impoverished had
101 Smith (n99 above) 110.
102 Ibid at 112.
103 Fleishacker (n90 above) 27.
104 Smith (n98 above) 277.
105 Fleishacker (n90 above) 53.
106 Ibid at 54.
107 Ibid at 57.
108 Jean-Jacques Rousseau Discourse on Political Economy and the Social Contract (Christopher Betts transl 2009) 21; Fleishacker (n90 above) 56.
109 Fleishacker (n90 above) 57-58.
37 on the quality of life led by the poor.110 Smith queried the social classification which existed within the society and regarded the poor as worthy of the same dignity with others in the society; the poor equally deserved the basic necessities of life.111 Fleischacker refers to Smith’s view of the poor as, ‘a dignified picture of the poor’.112 This view paved the way for the further evolution of the notion of distributive justice and the duty of the state to ensure socio-economic equality.113
Another scholar that contributed significantly to the transformation of distributive justice, as currently known, is Immanuel Kant. Kant argued expressly that the state, and not private citizens, had the duty to cater for the poor in the society.114 Kant starts his argument by emphasizing that all humans were equal and deserving of a good quality of life. Poverty, he argues, is a consequence of human injustice and it would be absent in a just society.115 Kant regards the natural propensity to help the needy or perform ‘benevolence’ as an urge, which nature has put into humans as a means of restitution for societal injustice.116 Kant incriminates the generality of humans in this injustice, even when an individual has not directly perpetuated injustice.117 Therefore, a gift to the poor is not gratuity, it is a reparation or return to the poor of what had been stolen through societal injustice.118 Kant equates a society without distributive justice with one in the state of nature.119
Explaining the principle of distributive justice further, Kant points out that private charity generates a feeling of gratitude from the beneficiary to the benefactor.120 The act of benevolence may never be sufficiently reciprocated and this leaves the receiver in an endless feeling of indebtedness to their giver.121 This arrangement reinforces the prevalent inequality and classism between the wealthy and the impoverished, the regular recipients of benevolence.
To avoid this indebtedness, Kant contends that assistance for the poor must be carried out by the state and should not be placed on the private citizen. This averts the feeling of indebtedness
110 Smith (n99 above) 340-342.
111 Ibid.
112 Fleishacker (n90 above) 66.
113 Ibid at 62-66.
114 Ibid at 68.
115 Immanuel Kant Lectures on Ethics (Peter Heath transl. 1997) 178-179.
116 Ibid at 179.
117 Ibid.
118 Ibid.
119 Immanuel Kant The Metaphysics of Morals (Mary Gregor transl. 1991) 121.
120 Kant (n115) 179.
121 Ibid 199.
38 that is created through private benevolence and also helps to preserve the self-worth of the beneficiaries.122
However, Gracchus Babeuf was the first to argue clearly that the reallocation of resources by the state was a necessity for justice.123 In other words, redistributive justice was not only desirable or a duty of the state, but it was also a necessity for justice within the society. Babeuf argued that everyone had an equal right to wealth and each individual within the society should have the same access to the utilisation of the society’s resources. It was, therefore, a prerequisite of justice to equalize the wealth distribution where there is a gap in the distribution of wealth.124 For Babeuf, there was a direct relationship between reallocation of state resources and the social contract, and the goal of the social contract was to enhance equality by defending the weak against the strong members of the state.125 Babeuf’s thinking was thus reliant on Locke’s social contract in explaining the concept of redistributive justice and the duty of the state. This idea was later developed by John Rawls.
In his treatise, A Theory of Justice, Rawls describes distributive justice, using what he calls ‘the difference principle.’126 Rawls founds his position upon the idea of equality of opportunity.127 In other words, every individual within the state should have similar access to opportunities and the realisation of their full potentials. Fairness would be deemed present in the society if every individual’s fate is dictated by the choices they make, and not by circumstances, such as birth family, over which they have no control.128
In this society, success or failure, wealth or poverty are a product of a person’s actions and thus the result will be judged as fair and just against another individual with a different result.
Success (or failure) must be deserved, and not endowed upon individuals.129 Where this is not the case, Rawls argues that it would be just and fair to have a set of distributive rules which seeks to ensure equality among the members of the state.130 Distributive justice does not merely connote a moral relationship but an entitlement; a right for those who have been deprived.131
122 Fleishacker (n90 above) 71-72.
123 Ibid 75.
124 Ibid 78.
125 Ibid.
126 John Rawls A Theory of Justice revised ed (1999) 65-66.
127 Ibid at 68, 73.
128 Will Kymlicka Contemporary Political Philosophy: An Introduction 2 ed (2001) 58.
129 Ibid.
130 Rawls (n126 above) 67-68.
131 Simon Caney Justice Beyond Borders: A Global Political Theory (2005) 104.
39 The principle does seek to remedy inequality occasioned by the differences in natural circumstances.
Similar to Babeuf, Rawls asserts that differential treatment is a prerequisite, which the signatories to the social contract would have added as an operating clause of the contract.132 This clause is added at a point where there is a veil of ignorance, and each party is oblivious of their capabilities and of each other’s capabilities. They are unaware of the extent of their own abilities and are in essence unable to make selfish choices.133 This innocence compels them to make rules that are impartial and fair to everyone. In doing this, these parties will frame principles of justice in a manner that ensures that the ‘arbitrariness of the world must be corrected.’134
Rawls proceeds to argue that the difference principle would be included in the social contract as a tool for addressing any inequality, which may exist between members of the society.135 This egalitarian conception gives room for the redistribution of state resources in a way that guarantees that every individual is in a better position.136 Even if such redistribution leads to an uneven allocation of means among otherwise equal members of the society, it is a necessary social cooperation that benefits the society as a whole.137
Rawls explains that ‘undeserved inequalities’ exist within the state and must be rectified by compensating those who are disadvantaged.138 An example of rectifying may include allocating more resources to schools of the poor.139 Distributive justice allows an unequal distribution of obligations as a way to ameliorate existing injustice. It must be noted that the goal is not to create a society of totally equal individuals. To satisfy the ideals of distributive justice, it is enough that every member has sufficient ‘means to make intelligent and effect use of their freedoms and to lead reasonable and worthwhile lives.’140 Beyond that, there is no need for redistributive justice.141
132 Rawls (n126 above) 121.
133 Ibid at 118, 120-121.
134 Ibid at 122.
135 Ibid at 65-66.
136 Ibid.
137 Ibid at 66.
138 Ibid at 86.
139 Ibid.
140 John Rawls (1999) The Law of Peoples (1999) 114.
141 Ibid.
40 From the foregoing, it is clear that distributive justice is that conception of equity which maintains that there is a need for the redistribution of resources in a manner that seeks to improve the conditions of those who are less advantaged. This principle has developed from the notion of benevolence to a sense of duty and a requirement of justice. Distributive justice is regarded as a core aspect of the social contract and embodies the duty of the state to ensure equality among its members.
The question then becomes whether the principle of distributive justice applies within international law. Scholars have argued both for and against the applicability of distributive justice within international law. The following subsection will outline some of these arguments and how it fits into the current research on the conception of equity and justice within the international law on climate change.
3.2.2 A critique of the applicability of distributive justice within the international