Wednesday, July 10, 2013

The Sublation of Distributive and Restorative Justice

published on state of nature

While political and social theorists largely agree that a given society’s legitimacy and worth can be measured by the degree to which justice is achieved, few agree on what justice actually means. Indeed, it is an understatement to remark that efforts at articulating a lucid conception of justice have resulted in many overlapping, and at times conflicting, notions. These range from little more than justifications for revenge – referred to as retributive justice – to theories of justice that concentrate on preventing injustices from arising in the first place – creating the conditions which justice requires in order to be realized. An example of this latter notion of justice is distributive justice. Popularized by the American philosopher John Rawls, distributive justice seeks to distribute society’s resources in a fair manner. Somewhere between retributive justice theories and distributive justice theories rests restorative justice, which more or less sees justice arising from the restoration of a wronged party’s pre-wronged position.

While distributive and restorative justice tend to be viewed as more or less distinct, a critical look at the former reveals that in at least one crucial respect theories of distributive justice are highly flawed; to the degree that they neglect considering a restorative justice dimension, distributive justice theories fail to recognize how society’s resources and wealth became so unjustly distributed in the first place.

Advocates of distributive justice argue that a society’s resources ought to be distributed in an equitable manner. In addition to taking the position that people have an ethical duty to help one another, there is a human rights aspect to this argument as well: all people have a right to a certain basic level of welfare. As such, resources need to be distributed in such a way as to allow all people to benefit. At first blush this seems hardly objectionable. However, there is considerably more to this injustice-demanding-correction than the moral issue of inequitable resource distribution. Beyond the wrong inhering in a situation which finds some having so much food that, for example, it rots before they can even use it – or they destroy it intentionally to keep up its exchange-value while people are starving to death the world over – lies the wrong of how they acquired control of so many resources in the first place, and how the rest of the people of the world lost control of these resources.

Despite the ideological dogma to the contrary, the wealthy did not come into possession of the majority of the world’s resources by virtue of a more successful cultivation of the land, greater assiduousness, divine selection, etc. Rather, the historical fact is that this acquisition was carried out by means of a conquest that itself constitutes a monumental series of harms. As Balzac remarked in his Pere Goriot, behind every great fortune there lies a great crime. And the great fortunes deriving from the enclosure, privatization, and sale of what was formerly commonly owned land in Britain and Europe, among other places, not to mention the genocidal conquests of the Americas, Africa, and parts of Asia – among other former colonial possessions – are not excepted from Balzac’s observation. Indeed, the persuasiveness of distributive justice theories lies not so much in the recognition that the great majority of the resources of the world are held in a very few hands and that an equitable distribution of these would contribute to a just world. This is only part of the persuasiveness of these theories. The other part rests in the recognition that these very resources were once – and not very long ago, either – more or less held in common by most people in the world, and were only concentrated into extreme wealth by way of a series of murderous expropriations, and assembled into their valuable forms by mass enslavement, coerced labor, and other harms. As such, the redistribution of the world’s wealth is not simply a matter of distributive justice; it is a matter of restorative justice as well.

Elliot Sperber is a writer, attorney, and contributor to He lives in Brooklyn and can be reached at

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