Law in Contemporary Society
Is inequality inherently unjust? If so, what can be done to reconcile justice with a world defined by scarcity of resources and the continual creation of unequal relationships? This twiki entry has the goal of providing various perspectives on the question of inequality and its link to justice.

First entry:

This Land is Their Land by Barbara Ehrenreich.

For the Future: John Rawls on Inequality

-- RonMazor - 03 Feb 2010

First I will argue for why inequality is inherently unjust, investigating hypothetical worlds and then investigating our own world. Then I will suggest the two paths lawyers in the real world can take to minimize the injustice of inequality.

First Part: Arguments for Why Inequality Is Unjust

I would argue that inequality is almost always inherently unjust. Imagine a hypothetical world in which a group of individuals begin on a perfectly equal footing, and in which some individuals, by their own skill, are able to gain a better position relative to the others. One might argue that in this situation, the resulting inequality would not be unjust. I would answer that the inequality is still unjust. It is inherently unjust in that some individuals were endowed - by nothing more than sheer chance - with greater facilities than other individuals. Now let me pose a more audacious hypothetical in which a group of individuals begin not only on a perfectly equal footing in regards to resource distribution, but also on an equal footing in regard to skill distribution. That is, in this new hypothetical, all individuals possess the same resources and the same skills and abilities. Nevertheless, some individuals choose to put in more work, to exercise their abilities to a higher degree, and through this voluntary exertion, they are able to achieve a better position relative to the others in their group. But imagine that, in this world, in order to achieve a better position relative to another individual, one must take something away from another individual. This hypothetical world would then be unjust. Taking something from someone in order to improve oneself, if the taker does not need that something in any way, is unjust.

There is only one possible hypothetical in which inequality is just. Imagine a strange world in which everybody has an equal ability, starts on an equal footing, and in which one can get more things without taking them from others. Then I would argue that if an individual happens to get more things than anyone else, but this individual does not get these things by taking anything from anyone else, but merely by harvesting something from a common pool, then the resulting inequality would not be unjust. If, however, after having hoarded these extra resources, the individual leverages his greater resource share to create further inequality, then this would be unjust.

So except for one extremely unusual hypothetical world which bears no resemblance to reality, inequality is inherently unjust.

Second Part: Our Own World

Now look at our own world. Our own world is nothing like the above hypotheticals. If equality was unjust there, how much more unjust is the inequality found in our own world! The rich are not rich because they work hard but because by chance they happened to be born into a pathway that would channel them into the elite. Likewise, the poor were born in conditions that largely serve to perpetuate poverty. Moreover, even if you think the rich are rich because of merit, there must be a limit to how large a share of the world's resources merit justifies one in having. Surely, even assuming great disparities in merit, there is no way to justify a situation in which 1% of the world's population owns such a vastly disproportionate share of its resources.

Third Part: Implications

But inequality cannot be eliminated. It is entirely unfeasible. There are two things for a lawyer to focus on then:

1) Preventing individuals from leveraging their superior position to inflict harm on those in inferior positions. This can be done through the judiciary.

2) Imposing legal barriers that prevent an individual from gaining too much power and resources. This would need to be done primarily through the legislature. For example, I think it would be a good idea to impose a 100% tax on all personal incomes greater than $2 million. Nobody needs more than $2 million a year, and one would need no more incentive beyond $2 million a year to do any job currently done in society. For example, cutting executive salaries to $2 million per year would not result in a dearth of quality executives.

-- ChristopherCrismanCox - 03 Feb 2010

  • Chris, I enjoyed reading your thoughts. Two quick points. 1. My distillation of your hypotheticals: The only world in which there would be no injustice due to inequality is in world of infinite resources. If a resource is finite, then any hoarding of the resource will result in less of that resource being available to others. If this is an accurate description of your point, it could be made clearer in your writing. 2. "Taking something from someone in order to improve oneself, if the taker does not need that something in any way, is unjust. " This sentence seems logically inconsistent. The taker is taking something to improve himself. Therefore, he needs it in some way. Do you mean that the person is taking it out of greed alone rather than to "improve" oneself.
-- JohnAlbanese - 04 Feb 2010

  • John, here is how I would distill my hypotheticals: The only world in which there would be no injustice due to inequality is in a world of infinite resources where it takes no work to harvest those resources. This is slightly different from a world that has infinite resources in which it does take work to harvest those resources. In regard to the word "improve" I used it to mean: to get something one does not need. This is why I distinguished between taking something one needs and taking something to improve oneself. Essentially, yes, I was using "improve" to refer to a taking motivated by greed.

  • Regardless, the venture into hypotheticals that diverge wildly from our world does not really serve to illuminate much. I thought it interesting to contemplate whether inequality could ever not be unjust. But I think one would be hard-pressed to argue, absent an argument based on the pillar of callousness, that the inequality found in our world is inherently unjust.
-- ChristopherCrismanCox - 04 Feb 2010

Yes, but why is inequality inherently unjust? The hypotheticals are nice, but they just don't correspond to the real world. The fact is, people are born in different positions to succeed (both skill set and resource wise). Thus, I don't think this form of inequality is unjust. It just is. I'm going to amend this thought because I don't think its complete. But, suffice to say, I don't think we can use just/unjust to evaluate something that has no alternatives. Hypos are nice, but they aren't hypos grounded in any reality and they never will be. This, the real world, is all there is. It can't be "unjust" because if it is, there is no "just" alternative.

  • I understand what you are saying. But I would argue that the very composition of the world in which we live is unjust. It is unjust for a human soul, without any form of consent, to suddenly find itself in a world of scarce resources. Regardless of how our universe came to be, it was created in a fundamentally unjust way. You might argue that in order for something to be unjust, an actor must have perpetrated it. I disagree. I think something is unjust when it is not in accordance with the principles of justice, regardless of whether no actor caused it to come into being or if there is no alternative.
-- ChristopherCrismanCox - 05 Feb 2010

Now, what we as a society choose to do from this inherently unequal position is I think where an assessment of justice comes in. Being rich is not inherently unjust (from any initial position). Having social policies which funnel more wealth to the rich (those who need it least) from the poor (those who need it most) is unjust. Or more accurately, this is more unjust than many other alternative arrangements.

edit 1:

"I think it would be a good idea to impose a 100% tax on all personal incomes greater than $2 million."

I think this would be a terrible idea. Forget the fact that it deincentivizes anyone to make more than 2 million dollars a year (of course, if we fix inflation then perhaps this seems more reasonable, however, I'd contend that there are people who create value in excess of 2 million dollars). But now, you'll have high earners moving to other countries and finding more ways to skirt the tax code. Instead of getting whatever tax revenue we were going to get in the first place, now we get bupkis.

Of course, this happens right now so maybe it isn't such a bad idea...

This conversation is not addressing the issue, any more than a discussion about why it is or is not important to achieve justice in individual cases if injustice as a whole can never be eliminated. Both are as silly as a discussion about the ethics of tax policy that takes up no question more difficult than whether confiscatory taxation is a good idea. You can't demonstrate commitment to having a discussion by trivializing it.

I also have two points in reference to the initial thoughts on what lawyers can do to battle unjust inequality:

1. How can a lawyer, whose job is to service a client, use the judiciary to prevent “individuals from leveraging their superior position to inflict harm on those in inferior positions”? I am assuming that the individual doing the leveraging is Party A to the case and our client is the lesser-positioned Party B. In that situation, successfully arguing B’s case (and perhaps winning a hefty damage award) could maybe lead to a little less inequality. But what happens if you find yourself on the wrong side of the courtroom, and you’re defending Party A? You’re obligated to “use the judiciary” to proffer the determination that you have won your case, and nothing more. Perhaps you are suggesting that before using the judiciary, a lawyer should take care to select clients whose causes, if won, will contribute to lessening that inequality divide?

2. Agreed on Mr. Zorn’s point about the income tax suggestion. There are a host of reasons why that idea, while admirable on paper, is problematic in practice, the first of which is that many of the nation’s great cultural institutions, public educational programs and charitable organizations would cease to function, their being largely dependent on large private donations. Another big problem is that the nation’s one percent might declare a civil war (joking, sort of).

In Regards to the Cap on Yearly Income

I heartily defend the notion that there should be a cap on yearly income. To clarify, this cap would be on yearly income, not on total wealth. I do not think it would be disastrous. Here is how I would summarize the argument I will make below: Even with a $2 million cap on yearly income, there would still be people to do all the jobs that are being done now, even if a bunch of rich people left. Our economy would not be hurt.

To explain why, let us start by discussing Communism. Why has Communism shown itself to be disastrous? The answer is that there are no incentives for people to work to uphold the economy. People have no incentives to work: there are no incentives to be a CEO and no incentives to be a street sweeper. If everybody gets paid the same no matter what they do or even if they willfully choose not to work (which I take to be the true definition of Communism), then there are no incentives to really do anything. In another version of Communism, the government will decide what job you do. This is disastrous because the government does not calculate supply and demand in the appropriate ways to ensure a maximally functioning economy.

If a range of incomes are possible ($0 per year to $2 million per year), then different jobs can still be priced differentially, in accordance with supply and demand. This provides a mechanism for the same economy we have today. Let us suppose that someone who makes $50 million a year decides to leave the country after we impose this income cap and moves to another country where he can make his $50 million in peace. Good riddance, then. I would argue that enough people exist in this industrious country that have the intelligence and skill level to do that person's job. And there are enough people in this country with the necessary skill level who would be perfectly happy with a $1.5 or $2 million a year job.

Even with a $2 million cap then, the economy would still function. The same jobs would be performed as are now. The same transactions would exist. Note that corporations are still allowed under the income cap to possess and manipulate larger amounts of money per year than $2 million; the cap only applies to income that is annexed to one's own personal control.

In addition to not destroying the economy, we would succeed in establishing a more equitable distribution of wealth. If companies were limited in what share of profits they could give to any one individual, the result is that people farther down the chain of command would start making more money.

What about the taxes? I would argue that the total national income would still be the same under this plan. But there is a valid point to be made against this plan. That is, we would still lose money in tax revenues because we would not have the benefit of extreme tax rates that affect the ultra rich. (Consider two situations in which the national income is $100. In situation A, 100 people have $1. In situation B, 1 person has all $100. We might get a dime from each of the $1 earners, totaling $10 in taxes, but we would get $40 from the $100 earner.) Two responses: 1) The more equal distribution of money is itself a benefit to society, and I would accept that the government gets less tax revenues if a more equal distribution of money took place. 2) In addition, the more equally distributed money is, the less we need tax revenues to fund social welfare programs that seek to remedy this very thing.

But regardless, I return to my main point, which is that even with a $2 million cap on yearly income, there would still be people to do all the jobs that are being done now, even if a bunch of rich people left. Our economy would not be hurt.

-- MatthewZorn - 05 Feb 2010

Morality and Injustice

The discussion here of inequality and injustice would be incomplete without a discussion of the moral basis of law. After all, how can inequality be unjust unless we assume that all men are "endowed by their Creator with certain unalienable Rights"?

William Blackstone, in his Commentaries on the Laws of England, described this inherent, natural law in the following way:

"When [God] created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws"

It was only after establishing this basis for law that Blackstone asserted the following about inequality:

"The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with everything necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of several statutes enacted for the relief of the poor." (

Unfortunately, the prevalent theory about law in most law schools today is the Instrumentalist Theory advocated by Oliver Wendell Holmes. This theory views law as just a tool, an instrument used to achieve the evolving goals of modern society. Holmes claimed:

"Men make their own laws... these laws do not flow from some mysterious omnipresence in the sky, and... judges are not independent mouthpieces of the infinite." (Francis Biddle, Justice Holmes, Natural Law and the Supreme Court, (1960) p. 49)

Not surprisingly, Holmes' attitude towards humanity is one of indifference:

"I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or to a grain of sand" (Holmes-Pollock Letters, ed. Mark Dewolfe Howe, vol. 2).

With such a view of humanity, there is no reason to find inequality unjust. It is only by establishing the inherent dignity of human beings that we can begin to discuss the relationship between inequality and injustice.

-- JeffreyPan - 08 Feb 2010

Jeff, I like your points. I think you're right that any notion of inequality being unjust has to stem from a sense that people are entitled to some basic level of fairness.

When I'm less tired, I'll take a stab at posting on Rawls.

P.S. I'll give Holmes the benefit of doubt, and assume he was taking an avant-garde position in favor of evolution.

-- RonMazor - 08 Feb 2010

"I think you're right that any notion of inequality being unjust has to stem from a sense that people are entitled to some basic level of fairness." It really couldn't be otherwise. To deny this is to deny that justice exists. But how to define that fairness is a question that is strikingly individualistic. And nevertheless, there does tend to be a vague consensus that emerges when large groups of people submit their views on the subject, though any attempt to write down that consensus in great detail tends to falter. The dissent is in the details.

-- ChristopherCrismanCox - 08 Feb 2010

A question for all involved (perhaps to satisfy my own curiosity, perhaps to offer another perspective from which to structure discussion): If it were possible, would you want to live in a world without inequality, without injustice?

I don't know about you, but I wouldn't want to live in such a world any more than I would want to live in a world without death, because as Wallace Stevens so succinctly put it, "Death is the mother of Beauty."

-- JohnJeffcott - 08 Feb 2010



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