9.2 |
TRADITIONAL PROPER AND IMPROPER ARGUMENTS |
9.2.1 |
GENERAL ASPECTS OF JUSTIFICATION |
The property rules for the acquisition and transference
(including alienation) of rights have been called "criteria of
title". Consistence, determinacy and completeness have been
mentioned as such criterions. 'Determinacy' is, then, the
theoretical possibility to unequivocally determine who owns
what; 'completeness' is the requirement that all ownables can be
allocated on the basis of one or more criterions given. Thus it
has been argued that a rule like To each according to
'er need
is incomplete and must be supplemented by a rule allocating
unneeded ownables. These conditions concern the scheme of
justification, independently of its content or conclusiveness.
When considering the justification of property rights, it is
necessary to distinguish three levels of justification. They
have been called "general", "specific" and "particular". A
general justification deals with the question whether there
are or ought to be property rights; a specific justification
with the question whether there are or ought to be specific
sorts of such rights (for example, individual rights in other
people, in sentient beings or in land); and a particular
justification with the question whether a particular person or
group of persons has or ought to have a specific right in a
particular thing. If we can justify or explain that there ought
to be property rights (in a cultural or legal sense) this is
tantamount to proving that there are property rights in the
normative sense. (Explanation and justification cannot be separated
within the normative sphere.) Given that there are
property rights in the normative sense, there ought to be
property rights in the cultural and legal sense coinciding with
them. This does not only concern individual property but also
communal property; not only private but also collective property.
It has been correctly pointed out that those believing in
the collective property of a community or state with its own
territory and natural resources are in the same need of
providing a justification for such property rights.
The subject of distributive justice is closely related to
that of the justification of property rights. As its major
topics have been mentioned: the original acquisition of property
(the appropriation of unowned things); the transfer of property
(exchange, gift, alienation); and the rectification of injustice
because of the existence of past injustice in holdings. The factors
governing these topics have been labeled "the principle of
justice in acquisition", "of justice in transfer" and "of
rectification", respectively. A just transfer of a justly
acquired holding would thus justify the new ownership of such a
holding. And formally this is correct, but, as we will see, this
proposition will not have the practical implications some think
(and hope) it has. It stands or falls with the relevance of the
description of the thing owned and the proviso that enough must
be left over for others.
To determine whether a society, a community, or rather a
situation, is just with respect to the distribution of goods, a
theory of distributive justice, or of property, may use principles
which are (also) past-regarding or not past-regarding at
all. Past-regarding-principles (which are, confusingly,
called "historical" too) hold that past circumstances or actions
of people can justify different entitlements at a later time,
whereas present-and-future-regarding (or 'unhistorical')
principles are structural, 'end-result' or 'end-state' principles
of justice which only look at the situation, and the people in
this situation, at one particular moment without taking into
consideration what preceded. Suppose, for example, that a
certain good is scarce, and that everyone has first to work a
number of years to make and get it. Suppose also that everyone
is equally healthy and able to do the work required to
eventually get the good in question. Then, the justice of the
situation could not be assessed from a strictly nontemporal or
non-past-regarding perspective, because looking at the situation
at one particular moment it could, then, only be concluded that
the situation is unjust, because some of the people have the
good and some don't, while there are 'no' other differences
between these people, let alone relevant ones. The relevant
difference can only be discovered when looking at the situation
from a past-regarding, temporal vantage point.
Past-regarding or temporal principles of distributive justice
have been described as 'patterned' and 'nonpatterned'. A
patterned distribution is, then, a distribution which varies
along with some dimension, weighted sum or lexicographic ordering
of a number of dimensions. As examples of such patterned
principles have been mentioned: To each according to 'er moral
merit or according to the weighted sum of moral merit,
usefulness to society and need. It has been argued that a
principle of entitlement would not be patterned, at least if
'obligatory transfers' are ruled out, but such reasoning proves
to be fallacious if, and insofar as, people are only entitled to
the share in something and the conditions of ownership are
themselves of a temporal nature. What may not be scarce today,
may be scarce tomorrow; and what may be scarce today, may be
scarcer tomorrow. It is amazing to see how the temporal concerns
of those who plead for a 'historical' principle of justice in
holdings may suddenly be spirited away to closed, unchanging
slices of space when it comes to the change of the empirical
conditions of ownership thru time.
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