The Moral Rights Argument for Just Prices and the Architecture of Justice Arne Moritz Martin-Luther-University Halle-Wittenberg, Institute of Philosophy, D-06099 Halle, Germany [email protected]

Draft. Please, do not circulate or cite without prior consent of the author! The moral rights argument for just prices comes in two versions, a negative and an affirmative version. Negative version: If Jean has a moral right to P, and the price for P (or for something else, instrumental for P) works as an impediment for Jean to achieve P, that price is not just. Affirmative version: Justice of a price for P (or for something else, instrumental for P) requires (at least) that the price does not work as an impediment for Jean to achieve P, if Jean has a moral right to P. I should probably start with an explanation of the term moral right. To make a long story short, a moral right is not a legal right, i.e. it cannot be enacted by legislation and it cannot be identified by studying and interpreting codes of law. Rather a moral right is a right that is derived from morality, it can thus be conceived by moral reasoning. It is commonly believed, however, that only that part of morality to which the concept of justice refers consists of moral rights. The reason is that in the domain of justice we do not simply find moral duties. Rather we find moral duties that are related to claims of assignable individuals that those under such moral duties perform according to these duties. A standard way to explain this distinction of the domain of justice as the domain of moral rights against other domains of morality is the comparison of justice and beneficence. B’s general moral duty to be beneficent is an imperfect (or undirected) moral duty, since it does not entail that A as an assignable individual has a claim against B that B performs a beneficent act, that makes A or anyone else better off. The moral duty to keep a given promise, usually understood as falling into the domain of justice, works in a different way. Where B has promised A to perform a particular act, A as an assignable individual has a claim against B that B performs according to the promise given. That claim of an assignable individual, corresponding to a perfect (or directed) moral duty, is a moral right. I’ll confine myself to this identification of the domain of moral rights with the domain of justice and thus the domain of directed moral duties, i.e. duties coming with corresponding claims from assignable individuals against those under a moral duty.

Now, let us turn to an application of the moral rights argument for just prices: Say, Jean has the human right to be well-nourished. Jean’s right is a moral right, i.e. what we have in mind is not a legal right, derived from one of the relevant international conventions. The moral rights argument for just prices then claims that food prices may not work as an impediment for Jean to achieve his being well-nourished. The reason is that food is instrumental for Jean’s being well-nourished and being well-nourished is to what Jean has a moral right. There are moral rights at play on various stages of this argument. There is first the moral right to being well-nourished, which we could call a foundational right. The reason is that this right is the foundation of a second order moral right which is not explicitly called a moral right in the argument. That second order right is the moral right that prices do not work as an impediment for the achievement of what is the object of the first order moral right. It follows from the identification of the domain of justice with the domain of moral rights that the latter is a right as well. If justice requires that prices do not work as an impediment for Jean in the achievement of the object of his right to being well-nourished, there is a right in Jean besides his right to being well-nourished. I shall call that right to a price that allows for the achievement of the object of Jean’s first order right his right to a just price in what follows. But how does that derivative right come about? It is obviously not derived from the foundational right in the sense of logical implication. Here is a justification (inspired by Thomas Pogge): Suppose moral rights imply a claim against the community. According to that claim social institutions may not deprive individuals of the object of their moral rights. That claim justifies Jean’s derivative moral right to a just price, or at least it does so, if prices can be understood as a social institution. I would argue that such an understanding is plausible. The necessity to make payments for the achievement of goods is created by the community, by defining, allocating, securing and enforcing legal property rights, which include the legal right to transfer such rights in mutual consensual agreements. Jean’s moral right to being well-nourished taken together with Pogge’s more general constraint on the functioning of social institutions creates a claim in Jean to not being priced out when trying to achieve the object of this moral right. It follows from this justification that it is the community against which Jean’s claim is directed and not, or at least not immediately, Jean’s partners in exchange. The reason is that the community is responsible for the social institution and is thus under the duty to ensure the coherence of this institution with Jean’s foundational moral rights. Moreover, the suggested justification solves an obvious puzzle connected to the moral rights argument for just prices: That puzzle is, if Jean has a moral right to being well-nourished in the first place, why should he be required to pay a price for food at all? A possible answer, based on the justification provided for Jean’s derivative right, goes 2

Arne Moritz, The Moral Rights Argument for Just Prices and the Architecture of Justice Toulouse, 17 June 2011

as follows: The price system is introduced for the sake of incentives under division of labor and for the sake of economic efficiency more generally. As a social institution, though, it may have the effect of excluding people from the objects of their moral rights. That Jean is typically required to pay for food is thus justified by welfarist reasons, while his right to a just price ensures that the necessity to pay does not conflict with Jean’s moral rights. I will present a competing explanation for the existence of legal property rights in a minute. The moral rights argument for just prices is enticing in its simplicity. Still, I will now raise a few objections that put the validity of the argument, under certain circumstances, into question. I do not claim that these objections are extremely original, though. Rather they will be familiar to many of you from discussions about justice in other contexts. At the end of the paper I would like to suggest, however, that these objections should be interpreted in a different way than they usually are. As a first objection, assume that Jean himself is responsible for the fact that he cannot purchase food at the price at which it is offered. Say, Jean has voluntarily been less ambitious than he could have been during his professional career. His being unable to buy food is a consequence of Jean’s income that reflects his previous choices during his professional life. It could be argued that there is thus no injustice in the fact that food prices work as an impediment for Jean to achieve his being well-nourished, since he is the one who is responsible for that fact. A different objection relates not to Jean’s but to other people’s responsibility. Assume the reason for Jean’s disability to buy food is an exploitative wage. Jean’s employer denies giving Jean what would be a fair share of the product of his work. I do not want to spell out the different type of argument for just prices that is at work here. (Let us call it the fair share argument for just prices). It is important to note, though, that I do not call Jean’s wage exploitative, here, for the reasons supplied by the moral rights argument, but for independent reasons. What happens is that Jean’s (violated) claim to a fair wage shifts the focus of our moral reasoning from a perceived injustice of food prices that Jean cannot afford to the more fundamental injustice of his wage as the reason for his disability to afford the food to which he has a moral right. A different objection relates to the character of the property right in those who offer food for sale. The objection claims that they have not only a legal property right, bestowed upon them for the welfarist considerations outlined above, but a moral right to property. Given that moral property right that might be based on the claim to own the fruits of our labor, there is no point in condemning prices as unjust, since whatever price food seller’s claim, they are acting within the latitude coming with their moral right to property. The best one could then say with regard to the moral rights argument for just prices is that there seems to occur a conflict, or as Hillel Steiner has termed it in a 3

different context, an incompossibility of two rights: Jean’s derivative right to a just price clashes with food owner’s right to determine the rate of exchange at which they are ready to exchange what they own. I will come back on this perspective of two irreconcilable rights at the end of the paper. A last possible objection relates to the incentive function of prices already mentioned. Suppose that a recent rise in food prices is the reason why Jean can not afford to buy food. This rise in prices, so the objection, is no threat to Jean’s moral rights all things considered. Higher prices will encourage food producers to expand production. Supply will then become larger. Prices will fall, and Jean and others will eventually be able to afford food in the future. To the contrary, if public authorities fix prices to enable Jean to buy food now, this will have the effect that there is rather less food at higher prices in the future, since food producers will opt out of the market. Supposed that these are the alternatives, it seems that the force of Jean’s justice complaint against prices, based on his moral right at present is diminished by the concern for Jean’s respective right in the future. I will now briefly turn to the variety of conclusions that can be drawn from the moral rights argument for just prices. I have just mentioned price controls by public authorities as one such possible conclusion. The incentive based objection, though, has shown that one might be worried about drawing that conclusion. Moreover, one might be worried about the fact that price controls distribute the burdens that correspond to Jean’s right to a just price on those alone who offer on the market what is the object of Jean’s moral right, while we have said above that Jean’s claim is a claim against the whole community. Luckily, there is a different conclusion available. Jean could be provided with sufficient means to buy food by the public, whenever, he himself cannot afford to do so, or the public could likewise buy food and then offer assistance in kind to Jean. While that would avoid the worries just raised against price controls, it may cause other worries. It could be argued for instance that it is not just that the public pays the bill under the circumstances assumed by the first or the second objection where Jean himself or his employer are responsible for Jeans disability to pay. In these cases, if someone is required to pay the bill, then it should be either Jean, by bearing the hardship of his situation, or his boss by paying compensation according to a fair wage. The property right based objection could cause a worry in the following way. Providing Jean with money from public funds is clearly a practical solution to the apparent conflict of rights mentioned above. Still, this provides no satisfying solution in theory, i.e. no reasoning that explains why the consequences of the assumed moral property rights in food sellers should here be neutralized in a way that allows Jean to have access to what these food sellers offer and why the public should carry the burdens of doing so.

4

Arne Moritz, The Moral Rights Argument for Just Prices and the Architecture of Justice Toulouse, 17 June 2011

As I have said before, I have raised the objections discussed so far in order to suggest a particular interpretation what they are about. This interpretation is concerned with the broader issue of the structure or architecture of justice and with the more general question of what a theory of justice is about. According to standard views, what we have seen at work so far, were competing principles of justice: a principle of need or minimal flourishing bestowing upon Jean the right to being wellnourished from which his right to a just price is derived, Pogge’s principle that social institutions may not deprive people from the objects of their moral rights, the principle to take into account individuals’ choices and responsibilities, the libertarian’s principle to respect moral rights to property based on labor invested, the principle to take into account the consequences that actions concerned with present rights have for future right holders etc. The standard way to deal with this well-known pluralism of principles of justice is to reduce them to a more simple structure. There are various theoretical devices to derive this more simple structure of principles. All these devices, however, eventually come down to justify doing one or more of the following: to dismiss certain principles, to reduce a plurality of principles to a smaller number of principles, to constrain principles to particular domains of application, to establish a principled hierarchy between principles, and, if all that does not help yet, leaving the resolution of remaining conflicts to intuitive judgment that gives principles more or less weight when applied to particular cases. My alternative view on justice is inspired by Jonathan Dancy’s moral particularism, a particular position in metaethics which I cannot introduce here in general terms. I hope, though, that Dancy’s more general ideas which he applies on justice only very rarely will still become clear from the following suggestions. In my view a theory of justice should explore how reasons relevant for justice interact and how this knowledge applies in particular practical contexts. The interaction of reasons relevant for justice is what I call the architecture of justice. Exploring this architecture will evolve on three distinct stages, according to my view, which I will briefly illustrate regarding the moral rights argument for just prices discussed so far. According to what I have said initially about the identification of the domain of justice and the domain of moral rights, reasons relevant for justice should be reasons that are relevant for the distribution of moral rights across agents. We can call such reasons right-makers accordingly. Admittedly, this leaves open the question of how reasons qualify for exactly that function. So far in this paper, I have relied on conventional wisdom or common intuitions on that matter. The first stage of a theory of justice does however involve identifying and justifying reasons for rights. If we

5

do not simply want to rely on intuitions, this task will come down to finding reasons which explain why available reasons for rights are in fact to be considered as such reasons. To provide an outlook on that process let me remind my previous explanation for Jean’s derivative right to a just price. I suggest that the right maker here is: Jean has a right against the community to be protected against exclusions from the objects of his moral rights that are caused by social institutions. So, the reason for a right is here itself a right, and that is why we have called the right to a just price a derivative right. Accordingly, a justification for the right maker in this case requires providing a reason for the foundational right that the right maker expresses Rights are not always derivative, though, and thus right makers will sometimes not involve other rights. This for instance is the case when I say that the distribution of overall utility in the community justifies Jean’s right. My justification of a right maker, which is the task on this first stage of a theory of justice, will then not consist in justifying a different right, but in explaining why the right maker justifies a right which is itself foundational, i.e. not dependent on other rights. Having identified right-makers on the first stage of the theory, which will occasionally involve identifying no-right makers as well, on the second stage a theory of justice should explore the holism of reasons for rights, i.e. the way such reasons interact with each other and with other reasons. We have already seen various such interactions across the paper. Without excluding other possibilities, I would like to suggest that on this second stage a classification derived from Dancy’s work on moral particularism might be useful. According to that classification, apart from rightmakers and no right makers, there may sometimes be reasons that enable or disable, intensify or attenuate other right makers, but are not themselves right makers. Here are two examples for such relations from the previous discussion. We have presented the fact that Jean’s choices related to his career make him responsible for his disability to pay as a disabling reason, having the effect that the reason for a right to a just price, i.e. for his claim against others to assist him, may not work anymore. Moreover, we have presented the reason that price controls by public authorities may deprive Jean of the object of his moral right in the future as an attenuator of his claim against authorities to control prices at present. Going beyond the mere statement of such relations, a theory of justice on this second stage should provide reasons for the fact that reasons for rights and other reasons may stand in such relations as enabling, disabling, attenuating, and intensifying. So far, my suggestions may appear quite similar to how theorists about justice generally conceive their business, i.e. as identifying principles of justice and establishing a logical order between these principles. The identification of the third stage of a theory of justice, however, will make clear where the distinction lies. According to moral particularism, moral reasoning does not depend on 6

Arne Moritz, The Moral Rights Argument for Just Prices and the Architecture of Justice Toulouse, 17 June 2011

the supply of moral principles, i.e. the supply of reasons that are supposed to be reasons all the time, as it is assumed by the particularist’s opponent, the generalist. Rather moral particularists believe that a reason may work as a reason in some contexts, while not in others, and may still be a reason. The holism of reasons explains, why reasons do behave in such variability, but holism itself is not sufficient for a justification of the particularist’s claim that moral reasoning may work without principles. Leaving that lack of justification aside, it follows from the particularist’s perspective that the identification of reasons for rights and of their general interaction with each other and with other reasons provides only a partial view of the whole picture. Eventually the holism of reasons has to be explored in particular contexts on which such reasons come to bear, where they may or may not be disabled or enabled, intensified or attenuated by other reasons that simply do not occur on the more general level. Applied justice is thus the third part of which a theory of justice should necessarily consist. Let me illustrate this by the following examples: From a WFO report we can learn that price elasticity is so low in food crops that a response of the market to rising food prices in form of larger supply may take up to decade. This reason may work as a disabler of the attenuator that we have identified previously. In a similar way, we may find that disablers are disabled by other reasons. Suppose we find that the consequences of Jean’s choices on the labor market cannot generally be ascribed to his responsibility, at least not when they are unforeseeable or consist in the expression of other’s unconstrained preferences. Providing a contribution to exploring such interactions of reasons in particular cases should thus be the ultimate aim of a theory of justice. Let me conclude with two remarks on what all this means for apparently irreconcilable conflict of rights that we have noticed when discussing the relation of moral property rights to the moral right to a just price. The first remark is that obviously the approach to the architecture of justice that I have suggested cannot exclude apriori that irreconcilable conflicts between rights, supported by conflicting reasons, may occur. To put it in a bold way, I do not think that theories of justice can be more simple than morality is itself – although such theories should certainly neither be more complex than morality. The second remark is that the framework presented here provides various opportunities to avoid such irreconcilable conflicts. One such opportunity is to find a disabler for one of two conflicting rightmakers, either on the second or the third stage of the theory. A familiar example from the second stage is that invested labor, as a reason for a property right in the person who invested the labor may be disabled to work as such a reason when the labor was invested in stolen goods.

7

A second way in which apparent conflicts of rights can be dealt with according to the framework presented here, is by revising the justification of the right makers for two or more apparently conflicting rights. This resolution of conflict will happen on the first stage of a theory of justice. We could for instance try to show that there are reasons supporting that invested labor works as a right maker regarding a right to control and use the object into which the labor was invested, while at the same time there are no reasons why invested labor should create a right to the full exchange value of the object in which the labor was invested. If this works out, we do not resolve the conflict between rights by presenting a disabler regarding a right maker as in the former case. Rather we resolve the apparent conflict by revising the content of rights in the light of the reasons that can be provided in support for the right making reasons from which they are derived.

Appendices/Take-outs Negative and affirmative version Many of you may recognize these two forms of the argument from political discourse. In political discussions the negative version is normally more prominent. It is not hard to see why. By referring to one necessary condition for justice of prices only, the affirmative version does not definitely express justice of prices, since there may be other necessary conditions for justice of prices that are or are not met. The negative version instead provides a definite condemnation of prices as being unjust, since for such a condemnation it is sufficient that one necessary condition is not met. The negative version is thus naturally a more powerful, since a more definite, argument in political discourse – and that is probably why it is more often used. More on moral rights in general The first of these remarks (on moral rights) is that today the bipolar normative relationships entailed by moral rights are usually understood along the lines of the now classical analysis of the structure of legal rights given by the American legal theorist Wesley Hohfeld at the beginning of the 20th century. For the discourse about moral rights this means basically that the claim/duty relationship just considered is not the only bipolar normative relationship that can be entailed by a moral right. There is, however, an ongoing controversy about the question how many more of the four relationships identified by Hohfeld should strictly be seen as rights and thus be considered as possible forms of moral rights. Without going in the details of this controversy it can however be said that there is at least one more normative relationship which can be entailed by a moral right. This relationship can be called a second-order relationship, since it assumes that there already are claim/duty relationships, i.e. first order rights. The relevant second order relationship refers to the 8

Arne Moritz, The Moral Rights Argument for Just Prices and the Architecture of Justice Toulouse, 17 June 2011

power to alter or extinguish such first order rights (claim/duty relations). It is thus considered as a right if someone’s duty or claim related to a first order right can not be altered, extinguished or created by others. The respective position has been termed immunity and the position of those who lack the power to alter or extinguish first order moral rights is called disability. Unalienable human rights, if there are any, are an obvious example for this sort of relationship. Such rights entail claims against others that can not be alienated i.e. that entail a disability of the claimant to alter the first order duties corresponding to his claim. According to this view, I can not give up my human right to food by waiving other’s corresponding duties, for instance in a contract in which I waive those duties for the future, in exchange for certain goods or services now. (I have a disability to change the duties of those who are under a corresponding immunity.) Having said that, it is important to note that not all moral rights are unalienable, i.e. not all of them are backed by the structure of disabilities and immunities just described. For instance, many who think that there is such a thing as a moral right to property do also think that such a right can not come with a disability of the property holder to alter partly or extinguish fully the first order position entailed in his property right, i.e. other’s correlative duties, for instance by transferring his property right to someone else by gift or exchange. My second remark on moral rights in general is that there are rivaling theories about additional necessary features of moral rights and of rights in general. These rivaling theories are the so called benefit (or interest) theory of rights and the so called choice (or will) theory of rights. The former theory claims that it is a necessary condition for a right, moral or legal, that its existence benefits someone, if not the right holder himself, then at least someone else. The latter theory claims that it is a necessary condition for a right, moral or legal, that it opens up a domain in which the will or choice of right holders may exert control over other’s liberty, i.e. by providing the right holder the choice of enforcing ore waiving the duties under which others are in relation to his claim. It is commonly admitted that rights may have both functions at the same time. The real controversy is about the question whether there can still be a right, if one of this functions or both are not given. I will come back on my rather moderate answer to this complex issue later in the paper.

Other versions of objections in Jean’s case The consideration about Jean’s income may raise another, more general worry about the argument considered here. This worry is that the argument is actually a bottomless pit. As we have just seen, 9

not only food is instrumental for Jean’s being well-nourished, but also his income, i.e. the price for Jean’s work or for whatever he offers to others in the market to make an income. Moreover, we may easily think of other things being equally instrumental to Jean’s being well-nourished. Think of all the factors that could affect Jean’s being well-nourished negatively even if he can afford decent food, like lack of control over means of transport, bad housing or hygienic conditions, lack of cooking facilities, lack of knowledge about appropriate food preparation etc. Suppose, not only food and Jean’s income come at a certain price, but also all these and other factors related to Jean’s being well-nourished. It seems that the moral rights argument for just prices should claim that also the prices for those and other factors should not work as an impediment for Jean’s being well-nourished. But does the sheer number of such possible factors, at some point, not spoil the simplicity of the argument and its initial appeal? Moreover, the worry about the role of Jean’s choices and the bottomless pit worry can of course be combined. Think of the following case: Food is perfectly affordable for Jean, living in a small French village, given local food prices and Jean’s endowments, among which is a small monthly pension and an old bike to transport the food to Jean’s home. But now Jean chooses to move to a small house in the mountains above the village. He can still afford to buy the food, but he can not afford the expenses for transporting the food into the mountains for which his bike is of no use. The moral rights argument for just prices, it seems, then forces us to claim a car for Jean at a price that he can afford, even though Jean could have chosen to stay where he was, using his bike to transport the food he could afford to the house in the village. The argument, as it stands, thus seems to be vulnerable to what is often termed the expensive taste objection, i.e. the view that is not just to impose on others the cost of mere preferences. What if Jean’s right to a just price is irreconcilable with the same right of his partner in exchange, i.e. Jean has to buy cheap to achieve the objects of his moral right and his partner in exchange has to sell expensive to do so? Again, the problem is probably solved when it is taken into account that they both do not have a right against each other, but against the community – which can respect both rights by providing Jean with the means to pay the price that can be derived from the moral rights of his partner in exchange.

What does impediment mean?

10

Arne Moritz, The Moral Rights Argument for Just Prices and the Architecture of Justice Toulouse, 17 June 2011

A related question the moral rights argument may raise is, what it may reasonably mean that prices can work as an impediment for someone to achieve a particular good. At least two interpretations could be offered, here. The first is based on an individual’s disability to pay that I have just mentioned, the second interpretation is based on his/or her unwillingness to pay. I take it that the moral rights argument is not concerned with the latter factor, but with an individual’s lack of resources that works as an impediment for him/her to achieve the object of his moral right even if he/she would be willing to pay the price. Why is the partial or total unwillingness of an individual to pay the price, according to the Augustinian proverb that everyone wants to buy cheap, rather than expensive, not sufficient for a justice complaint along the lines of the argument discussed here? The reason is that, assuming that we all want rather to buy cheap than expensive, prices work as impediments in this sense all the time, at least until they go down to zero. The inflation of justice complaints that could be derived from the moral rights argument, if it were concerned with this sort of impediment based on unwillingness to pay, would undermine the very possibility for a price system to exist. The moral rights argument obviously relies on the existence of a price system, though, and so it seems necessary to assume that unwillingness to pay is not its object. The particularist’s belief goes beyond holism Holism implies that reasons may disable each other such that a reason may be a right maker in one context, but not in another. The particularist believes in holism of reasons, while admitting that this does not exclude in principle that a reason may work in the same way in all contexts. This could happen for the simple reason that there is no disabler for that reason in any context. The particularist denies, however, that moral reasoning is dependent upon the existence of such invariant reasons. Thus, he denies the generalist’s view that moral reasoning always rests on the provision of at least one universal sentence, like in the familiar case of a practical syllogism, where universal principles are applied on particular cases. It suffices for moral reasoning, according to the particularist, to provide reasons that do not involve universal claims, like when we say: This creates a right in Jean against B, since what B does, is promising. It is not necessary for valid moral reasoning according to the particularist’s view to add the universal premise here that promising always creates a right. Exploring the holism of reasons will show anyway that such a premise were wrong. Suppose the following disabler applies: B was under duress when promising.

11