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DOES JUSTICE DEMAND A CHANGE IN

HOW ECONOMIC LIFE IS ORGANISED?
Man has no property in man, neither has any generation
a property in the generations which are to follow.
- Thomas Paine1
INTRODUCTION:
MARKETS, INEQUALITY

AND

JUSTICE

In September of 2013, Forbes Magazine listed Microsoft founder Bill Gates as being
the second wealthiest person in the world, with a net worth of $67 billion. 2 In fact, in
2013 the top 10 wealthiest individuals in the world had a combined net worth of
around $450 billion; of these 10 individuals, 6 are Americans. Economic inequality is
particularly extreme in the United States, as Sandel writes:
The richest 1 percent of Americans can possess over a third of the countrys
wealth, more than the combined wealth of the bottom 90 percent of American
families. The top 10 percent of American households take in 42 percent of all income
and hold 71 percent of all wealth.3
Indeed, given the trends illustrated by these statistics, we might well question whether
or not such inequality is justified. The primary subject of justice, said Rawls, is the
basic structure of society, or more exactly, the way in which the major social
institutions distribute fundamental rights and duties and determine the division of
advantages from social cooperation.4 The ancient Greeks sought to divide the
concept of justice into two halves: correction and distribution. The former proposition
seeks to do justice inter partes without consideration to the wider questions of
distribution in society as a whole. 5 For instance, one of the objectives of the law of
restitution is to make redress for unjust enrichment between the parties by subtracting
1Rights of Man, in Mark Philp (ed), Thomas Paine: Rights of Man, Common Sense, and Other
Political Writings (OUP 2008) 92
2 (Anon) Forbes, Bill Gates < http://www.forbes.com/profile/bill-gates/> accessed 12th December
2013
3 Michael Sandel, Justice: Whats the Right Thing to Do? (1st edn, Penguin Books 2009) 58
4 John Rawls, A Theory of Justice (Revised edn, Harvard University Press 1999) 6
5 M.D.A. Freeman (ed), Lloyds Introduction to Jurisprudence (8th edn, Sweet & Maxwell 2008) 583

the profit accrued by the defendant and awarding it to the claimant; 6 it does not take
into account the relative positions of the parties, nor does it reflect a need for the
redistribution of wealth within society, it is merely corrective.
The second proposition questions whether the distribution of goods and wealth within
society is just. Societies may achieve the zenith of culture, wealth and scientific
advancement but, as Waldron writes, this is not enough to save it from a crushing
moral indictment. We may want our just society to be powerful and prosperous too
but we should not want power and prosperity at the expense of justice. 7 At its most
fundamental, distributive justice simply asks the question who deserves what, and in
what proportions? Although it was Aristotle who first put forward the suggestion that
honour or money or other such assets should be divided between a community on
the basis of their comparative merits, 8 various permutations of this thesis have been
proffered by theorists and politicians throughout the centuries.
This paper will consider the ordering of economic life through the lens of distributive
justice. In doing so, we shall explore a variety of facets to the question. Firstly, we
shall examine the origins of distributive justice. This will help us articulate a response
to contemporary theories. Secondly, we shall examine the concept of distributive
justice in light of the Rawls-Nozick exchange, a seminal debate in jurisprudence,
which will allow us to critically evaluate the legitimacy of two opposing theories, viz.
justice as fairness, and justice as entitlement. Thirdly, and finally, we will offer a
critique of contemporary economic life in light of the Rawls-Nozick exchange, in
order to fundamentally answer the question of whether a re-ordering is necessary for
the attainment of justice. It will be argued that market inequalities, such as those
which arise through a purely laissez-faire structure, and that are arbitrary from a moral
perspective, cannot be considered just since markets have a degrading factor when
applied to certain transactions; a fair market system will take account of the relative
positions of the actors within it so as to mitigate unfairness or unconscionable
bargains through the intervention of a redistributive tax regime, or through operation
of law.
6 Alastair Hudson, Equity and Trusts (6th edn, Routledge-Cavendish 2010) 1169
7 Jeremy Waldron, The Primacy of Justice (2003) 9 Legal Theory 269
8 Allan Beever, Aristotle on Equity, Law and Justice (2004) 10 Legal Theory 33, 34

THE JURISPRUDENTIAL ORIGINS OF DISTRIBUTIVE JUSTICE

Modern theories of distributive justice are rooted in the concept of the social contract,
itself derived from the higher principles of natural law, which is primarily concerned
with the intersection of law and moral precepts. The fundamental premise of natural
law suggests that what naturally is, ought to be. 9 For instance, it was Aquinas who
famously declared, lex iniusta non est lex.10 The principles of natural law informed
much of the writing of Hobbes, who famously described the life of man antecedent to
the formation of the social contract as being, solitary, poor, nasty, brutish and short.
In Hobbesian philosophy, those persons in a state of nature live in a condition of
perpetual war with one another, for without the coercive application of the law, every
person had total freedom and a right to everything, including the bodies of each
other.11 However, Hobbes reasoned that man was inclined to seek peace through,
fear of death, desire of such things as are necessary to commodious living; and a
hope by their industry to obtain them. 12 By applying our ability to reason, we may
determine, articles of peace terms of a social contract that allows individuals to
live in safety and harmony.13 Thus, it is our own self-interest that prevents Hobbes
visions of the apocalypse from occurring.
Locke advances a slightly different conceptualization of the social contract to Hobbes.
Our duty of fidelity to the law arises vis--vis our tacit consent. Any individual who
benefits from the state, however remotely, implicitly gives his consent to be bound by
the law.14 For Locke, the state exists in order to preserve the fundamental rights of its
citizens and he, acknowledges the right of oppressed citizens to resist tyranny and
overthrow an unjust government.15 Lockes theory ascribes particular importance to
the concept of private property. In his view, the Earth is Gods gift to man, there can
9 Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (2nd edn, OUP) 13
10 Literally translated, an unjust law is not law. Suri Ratnapala, Jurisprudence (1st edn, Cambridge
University Press 2009) 119
11 ibid at 147
12 Thomas Hobbes, Leviathan (first published 1651, OUP 1947) 84
13 Ratnapala (n 10)
14 John Locke, Second Treatise of Government (First published 1690), quoted in Peter Laslett, Lockes
Two Treatises of Government (2nd edn, Cambridge University Press, 1967) 119
15 Wacks (n 9) at 23

therefore be no a priori right to property. Proprietary rights are created through the
mixing of our labour with inanimate objects, thus creating a right in the new thing we
have created.16 Such a view clearly exerted a great influence on the original drafters of
the US Declaration of Independence, which declares in its opening lines,
We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent
of the governed.17
However, Finnis qualifies such a view of proprietary acquisition, noting that a
regime of private ownership will be a requirement of justice, provided that the
increased stock of goods yielded by such a regime is not hoarded by a class of
successful private owners but is made available by appropriate mechanisms. 18 The
concepts of institutions and consent play a central role in the writings of Rousseau,
whose work bares a striking degree of semblance to that of contemporary
philosophers such as Rawls and Nozick. Rousseaus formulation of the social contract
depicts it as an agreement between the will of the individual citizen and the will of the
community in general. Individually, we may decide that our ego should override the
popular interest of the community at large but, collectively, we as individuals cede our
selfishness to create popular sovereignty: 19 each of us puts his person and all his will
power in common under the supreme direction of the general will; and in a body we
receive each member as an indivisible part of the whole.20
Most contemporary societies today are driven through the capitalist market system. As
Sandel highlights, a key feature of such an economic system is the notion that
markets, and not government, family, or happiness, hold the key to freedom and

16 ibid
17 US Declaration of Independence (1776) (emphasis added), available at <http://www.archives.gov/>
18 John Finnis, Natural Law & Natural Rights (2nd edn OUP 2011) 171
19 Wacks (n 9) at pp. 24-5
20 Jean-Jacques Rousseau, The Social Contract in C. Kelley and R. Masters (trs), The Collected
Writings of Rousseau (Hannover Publishing 1990) 139

prosperity.21 This freedom, as Smith famously described, does not appeal to higher
principles of morality, such Kantianism but, rather, self-interest:
Itisnotfromthebenevolenceofthebutcher,thebrewer,orthebakerthatwe
expect our dinner, but from their regard to their own selfinterest. We address
ourselvesnottotheirhumanitybuttotheirselflove,andnevertalktothemofour
ownnecessities,butoftheiradvantages.22
To this end, argues Paine, it is the function of the government to remain passive in
such transactions, since every man, wishes to enjoy the fruits of his labours, and the
produce of his property in peace and safety, and with the least possible expense. When
these are accomplished the objects for which government ought to be established
are answered.23 What Paine is arguing for is a laissez-faire economic system, where
the state plays a minimal role in the market, other than to protect its security and
enforce contracts. However, writers such as Marx and Hegel, object to such a state of
affairs, for the reason that the market has a dehumanizing effect on the actors who
interrelate within it:
The bourgeoisie,24 wherever it has got the upper hand has pitilessly torn asunder
the motley feudal ties that bound man to his natural superiors, and has left remaining
no other nexus between man and man than self-interest, than callous cash
payment.25
THE RAWLS-NOZICK EXCHANGE
How, then, should we organise economic life in such a way that we may call it just?
We might decide to introduce a system of taxation whereby the needs of the many are
weighed against the needs of a wealthy few this is, in essence, a utilitarian system of
21 Michael Sandel, What Money Cant Buy: The Moral Limits of Markets (1st edn, Farrar, Straus and
Giroux 2012) 6
22 R.H. Campbell and A.S. Skinner (eds), Adam Smith, An Inquiry into the Nature and Causes of the
Wealth of Nations (Glasgow edn, OUP 1976) 17
23 Paine (n 1) at 251
24 In Marxist theory, the term bourgeoisie refers to the capitalist class that controls the majority of the
factors of production.
25 Karl Marx and Friedrich Engels, The Communist Manifesto (Gareth Stedman tr) (First Published
1848; Penguin Books 2004) 6

taxation. As Bentham writes, Nature has placed mankind under the governance of
two sovereign masters, pain and pleasure. It is for them alone to point out what we
ought to do, as well as determine what we shall do. 26 In other words, no action is
moral or immoral, per se: the moral worth of any individual action is determined by
the net pleasure that society may derive through the calculus of felicity. But, how does
this work in practice?
Consider again the example of Bill Gates $67 billion fortune: it is a truly substantial
sum of money that could provide enormous benefit to a great many people.
Anthropocentric27 utilitarianism would tend to suggest that the moral thing to do in
such a situation would be to tax Mr. Gates to the point where it hurts him as much as
it benefits the recipients of his money,28 but this is quite clearly unworkable, for at
least two reasons. Firstly, this suggestion may be critiqued along the lines of utilitarian
logic itself if we tax Mr. Gates in this may, he may become disinterested in making
so much money, thereby lowering aggregate welfare for the community in the long
term. Secondly, theorists such as Rawls and Nozick would argue, in a similar vein to
the social contractarians, that,
Individuals have rights, and there are things no person or group may do to
them (without violating their rights). So strong and far-reaching are these rights that
they raise the question of what, if anything, the state and its officials may do.29
Taxing Mr. Gates in a utilitarian manner would, therefore, constitute an, illegitimate
infringement on individual freedom.30 Such a regime would be morally
impermissible in the eyes of both Rawls and Nozick, who reject utilitarianism as a
means of achieving distributive justice, since it fails to give proper recognition to the
distinctiveness between individual persons.31 Yet, despite their promulgating different
viewpoints, they share much in common as regards their political philosophy.
Notwithstanding the fact that Nozick was Rawls protg at Harvard University, both
26 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation in Alan Ryan (ed),
Utilitarianism and Other Essays (First published 1984, Penguin Books 2004) 65
27 Human-centered
28 Sandel (n 3) at 59
29 Robert Nozick, Anarchy, State and Utopia (1st Edn 1974, Reprinted 2010 Blackwell Publishing) ix
30 Sandel (n 3) at 61
31 Michael Sandel, Liberalism and the Limits of Justice (2nd edn, Cambridge University Press) 66

philosophers appeal to Kants powerful injunction contained in his second formulation

of the categorical imperative to, act that you use humanity, whether in your own
person or in the person of any other, always at the same time as an end, never merely
as a means.32 Their theories of justice therefore look to the motive, and not the
consequence, of actions to determine their moral worth. Rawls theory perceives
justice as fairness, and it invites us to answer as is grounded in two fundamental
principles of justice, the first of which takes logical priority over the second:
First: each person is to have an equal right to the most extensive scheme of equal
basic liberties compatible with a similar scheme of liberties for others. Second: social
and economic inequalities are to be arranged so that they are both (a) reasonably
expected to be to everyones advantage and (b) attached to positions and offices open
to all.33
Why should these moral precepts constitute the two fundamental principles of justice?
Rawls invites us to participate in a thought experiment, by assuming ourselves to be in
an orginal position where we are allowed to select what principles should be used to
govern our society. Before we are allowed to select our principles, a metaphorical veil
of ignorance is placed over our heads, thus preventing us from knowing what time
period we will live in, our position in the social hierarchy, our race, our luck in the
distribution of natural assets or abilities, nor our strength or intelligence. 34
Consequently, we choose our principles of justice knowing that whatever maxims we
promulgate will be universalized to all of society, in a similar vein to Kants first
formulation of the categorical imperative, act only in accordance with that maxim
through which at the same time will that it become a universal maxim.35
As Ratnapala notes, Rawls first principle of justice, is a straightforward
endorsement of the classical liberal ideal that an individual should have the greatest
idea of freedom that is compatible with the equal freedom of others. 36 For instance,
32 Immanuel Kant, Groundwork of the Metaphysics of Morals (First published 1785 bk. IV at 429) in
Mary Gregor (tr, ed), Cambridge Texts in the History of Philosophy: Groundwork of the Metaphysics of
Morals (First published 1998, 18th printing, Cambridge Univeristy Press 2012) 38
33 Rawls (n 4) 53
34 ibid at 118
35 Kant (n 32) Bk. IV: 421 at 31
36 Ratnapala (n 10) at 339

As freedom to swing his fist may be said to end where Bs nose begins. The second
principle of justice, however, is slightly more complex, and has come to be known as
the maximin, or difference principle. Essentially, the difference principle cedes the
fact that certain economic inequalities will naturally arise in the course of events, but
they may be mitigated by, guaranteeing that the worst conditions one might find
oneself in is the least desirable of the alternatives.37
Indeed, it is possible to model the maximin theorem mathematically. Consider the
table below; it illustrates the gain (g) that a person, who after having made a decision
(d), may realise after having the veil of ignorance removed, when a circumstance (c)
occurs. Thus, gain may be expressed as a function of both decision and circumstance:
g = f (d, c).38 Supposing one were asked to make a decision as to what maxims of
justice you would universalize; one cannot possible know ones ultimate position in
society, so it is likely one would universalize those maxims that have the least
detrimental effect on those persons who are worst off in society. The only logical
option in this case is to universalize decision D3, since the worst one stands to gain is a
positive net value of 500. D3 therefore represents the most economically efficient and
morally sensible solution: this is what underpins the maximin principle.

Gain (G)

C1

C2

C3

D1

-700

800

1,200

D2

-800

700

1,400

D3

500

600

800

For an egalitarian such as Rawls, the maximin principle represents an ideal

mechanism for redressing social and economic inequalities since, even in a
meritocratic society (whereby resources and civic roles are distributed on the basis of
individual merit) economic inequality is created vis--vis moral arbitrariness. For
instance, the children of affluent and well educated parents are more likely to be
37 Freeman (n 5) at 586
38 Rawls (n 4) at 133 (Exaggerated figures of Pound Sterling have been substituted for Rawls original
units for illustration)

well educated than are children of poor working class families. 39 The function of the
original position is to, provide a means of deriving principles of justice that abstracts
from contingent and therefore morally irrelevant social and natural influences.40
However, as tempting as Rawls theorem may sound as a method to equitably
distribute resources and civic roles within society, it is not without faults. Suppose that
the person in the original position had a disposition towards gambling, or was
particularly feeble-minded, or both. Would he still choose the same two principles of
justice? For one, the orginal position is a highly artificial concept, thus it raises the
question of whether or not it is possible to reduce many features of human
psychological and moral reasoning into a bland exercise in philosophy.41
Consequently, Dworkin proposes that the irreducible core of Rawls theorem is:
the natural right of all men and women to equality of concern and respect, a right
they possess not by virtue of birth or characteristic or merit or excellence but simply
as human beings with the capacity to make plans and give justice.42
Similarly, from a Marxist perspective, Rawls appears to have a made a fundamental
bourgeois assumption, as he regards persons as naturally being free, when they are in
fact a product of their social class.43 Justice as fairness also abandons the idea of just
deserts why should we study or work hard if all we are doing is ensuring that those
who are perhaps not as productive are doing as best they can in the circumstances? It
stands to reason that if we are entitled to the fruits of our labour, then certain
individuals will naturally rise to the top, whilst others fall to the bottom. Nozicks
objection to justice as fairness is rooted in the notion that Rawls theorem fails to
appreciate that we own ourselves, and ipso facto, our natural abilities and talents too.
In response to Rawls, Nozick submits a theory of justice as entitlement in his seminal
text, Anarchy, State and Utopia, in which he conceives justice as being correlative
39 Ratnapala (n 10) at 341
40 Sandel (n 31) at 38
41 Wacks (n 9) at 271
42 Ronald Dworkin, Taking Rights Seriously (First published 1977, 2011 impression, Bloomsbury
Publishing) 182
43 M. Fisk, History and Reason in Rawls Moral Theory in Norman Daniels (ed), Reading Rawls:
Critical Studies on Rawls A Theory of Justice (Oxford: Basil Blackwell, 1975) 53

with entitlement. Building on the work of theorists such as Friedman and Hayek,
Nozick argues for the creation of an ultra-minimal night-watchman state, one that is
compliant with the classical principles of libertarianism. In the Constitution of Liberty,
Hayek puts forward the thesis that, any attempt to bring about greater economic
equality was bound to be coercive and destructive of a free society. 44 Comparably,
Friedman questions whether forcing an individual to contribute to a state operated
social security scheme would be in violation of that individuals personal liberty to not
contribute to such a scheme.45
As a libertarian, Nozick submits that only a state that exists for the enforcement of
contracts and the protection of its citizens from fraud and theft can be morally
justified.46 This requires great degree of deference on the part of the state to abstain
from activities that may be perceived to be paternal, such as interfering in the private
morality of its citizens. For example, in R v Brown, the defendants - a group of
homosexual sadomasochists - were convicted of assault occasioning actual bodily
harm contrary to s. 47 of the Offences Against the Person Act 1861. The House of
Lords upheld the original conviction, with Lord Templeman noting that,
Itisnotcleartomethattheactivitiesoftheappellants wereexercisesofrightsin
respectofprivateandfamilylife.Butassumingthattheappellantsareclaimingto
exercisethoserightsIdonotconsiderthatArticle8[oftheEuropeanConventionon
Human Rights] invalidates a law which forbids violence which is intentionally
harmfultobodyandmind.Societyisentitledandboundtoprotectitselfagainstacult
ofviolence.Pleasurederivedfromtheinflictionofpainisanevilthing.Crueltyis
uncivilised. I would answer the certified question in the negative and dismissthe
appealsoftheappellantsagainstconviction.47
Such a decision would have likely been quashed in Nozicks ultra-minimal state since
the court here was seeking to enforce public morality against that of the defendants.
Similarly, the ultra-minimal state would also be prevented from passing moral
44 See generally Friedrich Hayek, The Constitution of Liberty (Chicago: University of Chicago Press,
1960). Also, Sandel (n 3) at 61, and (n 31) at 186.
45 Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962) 188
46 Nozick (n 29) at ix
47 R v Brown [1992] 1 AC 212 at 215 per Templeman LJ (emphasis added)

legislation, such as statutes proscribing prostitution. Although prostitution maybe

immoral, the libertarian response would suggest that there is nothing reprehensible
about it, provided it is solely concerned with a transaction between two consenting
adults.48 Most importantly, the minimal state would be prevented from taxing
individuals in order to redistribute wealth, which Nozick equates to forced labour
since, taking the earnings of n hours of labour is like taking n hours from the person;
it is like forcing the person to work n hours for anothers purpose.49 Instead, Nozick
suggests that the well off should be allowed to decide for themselves whether or not to
help the poor.
What, then, would Nozick have to say about Bill Gates tax affairs? It is quite likely
that after deductions for the funding of state security and a highly contractarian
judiciary, Nozick would have very little to say about Mr. Gates wealth, providing that
it was obtained in accordance with Nozicks principles of justice, viz.:
1. A person who acquires a holding in accordance with principle of
justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of
justice in transfer, from someone else entitled to the holding, is entitled
to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1
and 2.50
Thus, the fact that Mr. Gates is an incredibly wealth individual in one of the most
economically unequal societies in the world is irrelevant, it is merely a reason to
encourage altruism of his own free will. Consider the table below. It illustrates a
society in which each person has been allocated 200 to do with as they please; we
might argue that this society is represents significant economic inequality, since B
holds the vast majority of the wealth. However, suppose Bs wealth was acquired in
accordance with Nozicks principles of justice, that he freely entered into transactions
whereby he extracted economic rents or was given the money as a gift, it surely

48 Sandel (n 3) at
49 Nozick (n 29) at 169
50 ibid at 151

cannot be said that his holding of the majority of the wealth is unjust.51

Persons

Wealth ()

100

600

100

100

100

Nevertheless, Nozicks thesis may be attacked on a variety of facets. For a start, a

chief criticism of justice as entitlements is that the wealth American families and
companies can be traced back transactions that are not in accordance with Nozicks
principles of justice, for instance, wealth obtained under slavery. It is bitterly ironic,
therefore, that the best mode of compensation available to those identifiable classes of
persons who are economically worse off due to historical reasons (quite often African
Americans in the case of the USA) comes in the form of a state social security
system.52 We ought to question whether or not by acquiring something in accordance
with the principle of justice in acquisition entitles to the thing or merely the value we
add to it.53 In the same vein, if Nozick conceives property as a fundamental liberty,
this could potentially provide justification for contracts for slavery or hard-labour.
Indeed, when we question how such a minimal state is to be controlled, or how the
wealthy are to be prevented from dominating the executive branch or government,
Nozick responds with reference to, free operation of the market, voluntary
associations and private philanthropy.54 As Stiglitz notes, Nozicks theory of trickledown economics has not worked in practice the US experience indicates that wealth
and altruism are not correlative and, the riches accruing to the top have come at the
expense of those down below.55
51 Table modeled on Nigel Simmonds, Central Issues in Jurisprudence (3rd edn, Sweet & Maxwell
2010) 105
52 John Stick, Turning Rawls into Nozick and Back Again (1987) 81(3) Nw. U. L. Rev. 363, 389-91
53 Simmonds (n 51) at pp. 99-100
54 Freeman (n 5) at 600
55 Joseph Stiglitz, The Price of Inequality (1st edn, Penguin Books 2013) at pp. 8-9

THE (IM)MORALS OF THE MARKET

Given the extent to which it has been demonstrated that market economics can
produce arbitrary economic inequality, we shall now briefly consider the moral
constraints of such systems. According to Sandel, there are certain civic goods,
chattels and services that money simply cannot buy because, in doing so, these entities
are, in themselves, degraded by the moral of the market, reduced to mere
commodities; when everything is for sale, we move from a market economy to a
market society, thereby crowding out the paradigmatic non-market norms associated
with those goods or services.56 Duxbury, on the other hand, contends that such an
argument is trite; that it is merely an emotive response, and that such feelings are not
sufficiently serious to justify the limitation on the commodification of those goods or
services.57
Take for instance, the market in human kidneys. It is certainly true that you could buy
(or sell) one, without actually ruining its value. Indeed, in a recent case, a teenager in
China purportedly managed to sell one of his kidneys for 22,000, apparently so that
he could purchase the latest generation of iPad.58 Supposing we apply Nozickian
theory to this transaction. The teenager freely contracted to sell his own kidney
(thereby meet the criterion for justice in acquisition) to another party in return for
monetary acquisition (thereby meeting the criteria for justice in transfer). Ostensibly,
then, under Nozickian principles, there is nothing wrong with this transaction. In fact,
an economist would argue that the transaction was Pareto efficient, in the sense that
both parties to the contract were (arguably) made better off, and no-one worse off.59
But should the teenager have been allowed to sell his kidney? There are two
arguments that suggest not. Firstly, we could argue that the contract was not fair to
begin with such a transaction acts against the teenagers poverty and relative
inability to negotiate the terms of the contract. His acceptance of the contract was,
56 Sandel (n 21) at pp. 8-15
57 Nigel Duxbury, Do Markets Degrade? (1996) 59 Modern Law Review 331, 332
58 See BBC, China Arrests After Kidney Sold for iPad (BBC News, 6th April 2012)
<http://www.bbc.co.uk/news/world-asia-china-17640209> accessed 3rd January 2014
59 Wacks (n 9) at pp. 261-2

therefore, entirely voluntary, and ought to be set aside on grounds of unconscionable

bargain. This would tend to suggest that, market exchanges are not always as
voluntary as market enthusiasts suggest.60 Rawlsian theory implies that such
inequality could be met by establishing fair trading conditions under the maximin
principle. However, as Trebilcock notes the weakness is of the coercion argument is
that,
The concept of individual autonomy or liberty, standing alone, provides little
purchase on this problem. If consent is defined as a decision that is the product of a
rational, deliberate choice almost every exchange can be viewed as voluntary. Only
in the extreme limiting case of somebodys seizing my hand and forcing me to sign a
contract, or torturing me would their be an absence of rational deliberate choice.61
The alternative argument suggests that markets reflect a, degrading, objectifying
view of the human person, such that, certain moral and civic goods are diminished
or corrupted if bought sold.62 Interestingly, Duxbury notes that the general norm that
we cannot alienate our body parts only applies whenever this is done for a price (as
opposed to being donated),63 contending that, there are plenty of things which are
integral to ourselves our natural abilities and talents, athletes, musicians and artists
and so on which we readily commodify without suffering degradation. 64 However,
it is suggested that the glaring weakness of Duxburys argument is this: whereas the
musician and the artist display talent for the arts, and the athlete a talent for sport, they
do not solely treat these talents as a mere means to and end but, rather, means in
themselves. In the case of the Chinese teenager, this was not so he sold his kidney
for the end of purchasing an iPad. Consequently, the degradation objection transcends
both Rawls maximin theorem and Nozicks principles of justice, regardless of the
relative (in)equality of the situation.
The same principles can be applied to the debate around prostitution. Economic
analysis would suggest that such transactions are perfectly acceptable as long as both
60 Sandel (n 21) at pp. 110-1
61 Michael Trebilcock, The Limits of Freedom of Contract (2nd edn, Harvard University Press 1997) 79
62 ibid
63 Duxbury (n 57) at 339
64 ibid at 342

parties are made better off, and none others worse off (or the those made worse off
can be theoretically compensated).65 However, the law has been keen to ensure that
contracts contra bonos mores (contrary to good morals), remain illegal at common
law; the illegal act serves to act as a vitiating factor for the contract, thus rendering it
void ab initio.66 In particular, the Courts are keen to avoid contracts that promote
sexual immorality such as in Girardy v Richardson, where it was that the clamaint
could not recover rents for premises that were knowingly leased for the purposes of
prostitution.67 Similarly, in Pearce v Brooks, it was held that the plaintiff was unable
to recover the consideration for the hire of an ornamental coach that was let for the
furtherance of a prostitutes trade.68 It would appear, therefore, that the law is prepared
to set aside the principle of sanctity of contract when it appears that the subject matter
of the contract is capable of being degraded by market transactions.
In conclusion, we have seen how markets can create profound economic inequality, in
the way that they displace the conventional non-market norms of certain goods and
services. We have also seen how theorists such as Rawls attempted to bring equity to
an economic system lacking fairness, and how Nozick sought to invigorate the same
system lacking incentive. In attempting to answer the question of whether justice
demands a change in economic life it is suggested that Rawls maximin principle,
whilst flawed in some aspects, is perhaps much more palatable than Nozicks
libertarian conception of justice in the current economic climate, and would be betterequipped to realise the underlying premise within it, to promote a state whereby,
each rational being acts as if he were through his maxim always a legislating
member of the Kingdom of Ends.69

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66 Sir Jack Beatson et al. (eds), Ansons Law of Contract (29th edn, OUP 2010) 393.
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68 (1866) LR 1 Ex 213
69 Kant (n 32) at 41

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