[VOL. 48: 773, 2011]
Socioeconomic Rights and Theories ofJustice
SAN DIEGO LAW REVIEW
Nozick's own substantive position is that "[w]hoever makes something ...
is entitled to it."4 2 But we need not accept this in order to accept his
critique of the allocative approach. His view is one way of linking
productive and distributive issues together; there may be others. The
more abstract point is that they ought to be linked and that justice ought
to deal with both of them together. We need principles of justice to
apply not to distribution considered apart from production or vice versa
but to the structure of production enmeshed with distribution that we are
likely to see in a real working economy.
The holistic emphasis on structure, as opposed to distributive questions
posed in isolation, is typical of Rawls's approach as well. Rawls too is
anxious that the task of a theory of justice not be understood simply as
an allocation of distributive shares: who gets what when and how? "We
must not assume," he says, "that there is much similarity from the
standpoint of justice between an administrative allotment of goods to
specific persons and the appropriate design of society."A' He also says
that "[i]f it is asked in the abstract whether one distribution of a given
stock of things to definite individuals . . . is better than another, then
there is simply no answer to this question."44 Thus, for example, Rawls's
Difference Principle is not to be interpreted as dictating that the worstoff group be given a certain share of resources.4 5 Instead, the effect of
the principle is that when we are designing or, more likely, evaluating
and reforming the network of rules and procedures that constitute the
institutional structure of society, we should do so in a way that is oriented
towards the advantage of the worst-off group. The institutions should be
designed to operate on the assumption that when the system is working,
outcomes are evaluated purely procedurally. We are not to meddle with
the outcomes of a just institutional structure even if we think that by
42.
Id. at 160.
43.
RAWLS, supra note 4, at 56.
44. Id at 76.
45. The Difference Principle certainly reveals a spirit congenial to something like
welfare provision inasmuch as it requires particular attention to the plight of the worstoff members of society. On the other hand, it also suggests that it is possible to justify
great inequalities, which on some accounts it is the task of socioeconomic rights to
mitigate. In general, the Difference Principle is too abstract to generate, by itself, any
particular case for welfare provision. It is a principle governing the most abstract
distributive implications of the basic structure, and it deals with them holistically,
without regard to particular institutional arrangements or sources of advantage or
disadvantage. If the Difference Principle provides the basis of a case for socioeconomic
rights, it does so in the context of its detailed elaboration.
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