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Published online by Cambridge University Press: 26 July 2016
One of the central arguments against redistribution through private law is its inefficiency due to the double-distortion phenomenon that accompanies it. I argue that in a subset of cases—in which there is uncertainty regarding the fairness principle that should be accepted in the realm of private law—it may be required to take into account redistributive considerations even if one generally accepts the double-distortion argument. I assert that while side-constraints may apply to direct redistribution, they do not apply to the role of redistributive considerations in determining which of the fairness principles should be accepted in the realm of private law. As a consequence, some distributive patterns could be achieved only by taking into account redistributive considerations in the realm of private law. I argue that redistributive considerations may tilt the scales toward accepting the fairness principle with the lower credence of being true.
I thank Yitzchak Benbaji, Tsilly Dagan, David Enoch, Alon Harel, Amnon Lehavi, Gideon Parchomovsky, Oren Perez and participants in the Private Law Consortium at Oslo University and the IDC Junior Legal Scholars’ Workshop for their most helpful comments.
1. See Weinrib, Ernest, Corrective Justice (Oxford: Oxford University Press, 2012) at 15–21.CrossRefGoogle Scholar There are a few versions for corrective justice besides Weinrib’s version, such as Jules Coleman’s “mixed conception of corrective justice”. In contrast to Weinrib’s conception, Coleman’s “mixed conception” does not require a causal link between the victim’s loss and the wrongness of the injurer’s actions if order for corrective justice measures to apply. See Coleman, Jules, Risks and Wrongs (New York: Cambridge University Press, 1992) at 340.Google Scholar John Gardner suggests an additional version of corrective justice, based on his “continuity thesis” according to which the justification for corrective justice is correcting one’s wrongs. In contrast to Weinrib’s assertion regarding the normative autonomy of corrective justice, according to the continuity thesis corrective justice is based on reasons beyond those of the morality of corrective justice. See John Gardner, “What is Tort Law For? Part 1: The Place of Corrective Justice” (2011) 30:1 Law & Phil 1.
2. Most prominent among them is Robert Nozick. See Nozick, Robert, State, Anarchy and Utopia (New York: Basic Books, 1974) at 167–73.Google Scholar
3. See for example: Moore, GE, Principia Ethica (Cambridge: Cambridge University Press, 1903);Google Scholar Mackie, JL, Ethics: Inventing Right and Wrong (New York: Penguin, 1977);Google Scholar Peter Railton, “Moral Realism” (1986) 95 Philosophical Rev 163; David Wiggins, “A Sensible Subjectivism?” in Needs, Values and Truth: Essays in the Philosophy of Value (Oxford: Basil Blackwell, 1987) 185; Enoch, David, Taking Morality Seriously: A Defense of Robust Realism (Oxford: Oxford University Press, 2011).CrossRefGoogle Scholar
4. See Gibbard, Alan, Thinking How to Live (Cambridge: Harvard University Press, 2003);Google Scholar Mark Schroeder, “Expression for Expressivists” (2008) 76:1 Philosophy and Phenomenological Research 86.
5. Supra note 3.
6. See Philippa Foot, “Moral Beliefs” (1958) 5 Proceedings of the Aristotelian Society 83; Harman, Gilbert, Change in View: Principles of Reasoning (Cambridge: MIT Press, 1986) at 21–22;Google Scholar RM Adams, “Moral Faith” (1995) 92:2 J Philosophy 75.
7. Ibid at 9.
8. Ibid at 205-06.
9. Isaac Levi, “On Intermediate Probabilities” (1974) 71:13 J Philosophy 391; Isaac Levi, “Ignorance Probability and the Rational Choice” (1982) 53:3 Synthese 387; Peter Gärdenfors & Nils-Eric Sahlin, “Unreliable Probabilities, Risk Taking and Decision Making” (1982) 53:3 Synthese 361.
10. See Lockhart, Ted, Moral Uncertainty and its Consequences (Oxford: Oxford University Press, 2000);Google Scholar Jacob Ross, “Rejecting Ethical Deflationism” (2006) 116:4 Ethics 732 (2006); Andrew Sepielli, “What to Do When You Don’t Know What to Do” in Russ Shafer-Landau, ed, Oxford Studies in Metaethics, vol 4 (Oxford: Oxford University Press, 2009) 5 [Sepielli, “What to Do”].
11. Louis Kaplow & Steven Shavell, “Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income” (1994) 23:2 J Leg Stud 667. It should be noted that in this paper I do not address the discussion regarding Kaplow & Shavell’s more general argument against fairness considerations that are detached from welfare considerations. See Kaplow, Louis & Shavell, Steven, Fairness versus Welfare (Cambridge: Harvard University Press, 2002) at xvii-xx.Google Scholar
12. Zachary Liscow, “Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency” (2014) 123:7 Yale L Rev 2478. This is in contrast to redistributive considerations in the contexts such as damages—that relative income affects the damages awarded. In this context, Liscow admits that the double distortion persists. See ibid at 2483.
13. Christine Jolls, “Behavioral Economic Analysis of Redistributive Legal Rules” (1998) 51:6 Vand L Rev 1653.
14. David Gamage, “A Framework for Analyzing the Optimal Choice of Tax Instruments” (2014) 68:1 Tax L Rev 1.
15. Tsilly Dagan, Pay as You Wish: Globalization, Forum Shopping and Distributive Justice (2014) [unpublished], SSRN, online: http://ssrn.com/abstract=2457212.
16. Ronen Avraham, David Fortus & Kyle D Logue, “Revisiting the Roles of Legal Rules and Tax Rules in Income Redistribution: A Response to Kaplow & Shavell” (2004) 89:4 Iowa L Rev 1125.
17. Daphna Lewinsohn-Zamir, “In Defense of Redistribution through Private Law” (2006) 91:2 Minn L Rev 326.
18. Howard F Chang, “The Possibility of a Fair Paretian” (2000) 110:2 Yale L J 251.
19. Chris Sanchirico, “Taxes versus Legal Rules as Instruments for Equity: A More Equitable View” (2000) 29:2 J Leg Stud 797. Equitable distribution may be based on an individual’s ability to pay, which is not necessarily reflected by their income. There is no reason to believe that the tax system is categorically more efficient in rating signals of ability to pay relatively to private law redistributive mechanisms. See ibid at 802-03.
20. Although Kaplow and Shavell, in a consequent study, reject outright the possibility of any other forms of reasons that might be relevant to legal policy besides welfarist-consequentialist reasons, their double distortion argument is independent of their argument against fairness considerations and applies even to views that accept other forms of deontological reasons such as fairness. See Kaplow & Shavell, Fairness versus Welfare, supra note 11. The argument above exposes how there may be an interconnection between these two arguments to a certain extent. For scholars that reject Kaplow and Shavell’s argument regarding the irrelevance of any non-welfarist consideration to legal policy, see Jeremy Waldron, “Locating Distribution”, Book Review of Fairness versus Welfare by Louis Kaplow & Steven Shavell, (2003) 32:1 J Leg Stud 277; Lewis Kornhauser, “Preference, Well-being and Morality in Social Decision”, Book Review of Fairness versus Welfare by Louis Kaplow & Steven Shavell, (2003) 32:1 J Leg Stud 303; See also Jules Coleman, “The Grounds of Welfare”, Book Review of Fairness versus Welfare by Louis Kaplow & Steven Shavell, (2003) 112:6 Yale L J 1511.
21. Sepielli, “What to Do”, supra note 10.
22. Ross, supra note 10 at 743-47.
23. Ibid 752-55. In order to demonstrate the distinction between the theory one attributes the highest credence to and the theory one believes, consider the following example: an individual is facing 12 possible moral theories. To two of them they attribute each a 5% chance of being true; to five of them they attribute a 7% chance of being true, to an additional seven they attribute an 8% chance of being true and to one they attribute a 9% chance of being true. In such a case one does not necessarily believe that the moral theory they attribute the highest credence to—i.e., the one they attribute 9%—is the true moral theory. For an example of a distinction between highest credence and belief, see Gilbert, supra note 6.
24. Regarding the general distinction between belief and acceptance, see L Jonathan Cohen, “Belief and Acceptance” (1989) 98:391 Mind 367 at 368.
25. Ross, supra note 10 at 744-47.
26. While the framework of this article is of epistemological uncertainty, a similar model could have been applied to a fuzzy logic framework which admits intermediate degrees of truth on the ontological level. Similarly, each of the moral theories could have been graded on a range between 0 to 1, but not based on the subjective credence an agent attributes them being true, but on their objective degree of truth. On the implications of fuzzy logic on the legal context, see Oren Perez, “Fuzzy Law: A Theory of Quasi-Legal Systems” (2015) 28:2 Can JL & Jur 343.
27. For justification of “softer” distributive frameworks with side constraints than the one suggested by Nozick, see Peter Vallentyne, “Nozick’s Libertarian Theory of Justice” in Ralf M Bader & John Meadowcroft, eds, The Cambridge Companion to Nozick’s Anarchy, State and Utopia (New York: Cambridge University Press, 2012) 145 (claiming that Nozick’s arguments are not sufficient for justifying absolute libertarian rights; they merely justify libertarian rights which are not absolute and could be overrun by other considerations). See also: Thomas Scanlon, “Nozick on Rights, Liberty and Property” (1976) 6:1 Philosophy & Public Affairs 3 at 8-9 (arguing that even if one accepts the premises of the Nozickian position that there is continuum of interferences extended between taxation and force labor it does not necessitate that one should be indifferent between any two points along it).
28. Regarding the pre-institutional prima-facie moral right for property, see Kevin Kordana & David H Tabachnik, “Tax and the Philosopher’s Stone” (2003) 89:3 Va L Rev 647.
29. This is the average between the optimal redistributive pattern—15 units to both David and John—and the fairly allocated resources, that in this example is assumed to be equal to the initial allocation of resources, i.e., 10 units to David and 10 to John.
30. This is the average of the optimal redistributive pattern—15 units to David and John—and the initial allocation, which is presumed to be fair—five units to David and 25 to John.
31. Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002) at 37–38.CrossRefGoogle Scholar
32. Kordana & Tabachnik, supra note 28. For more general views that argue for adopting non-absolutist side-constraints, see Vallentyne & Scanlon, supra note 27.