Abstract
Whereas right-libertarians do not think that it is a requirement of justice that we raise revenues for persons with disabilities, both left-libertarians and liberal egalitarians think that there is such a requirement. An issue remains for the latter two theorists—how ought we to raise this revenue? Liberal egalitarians typically endorse either universal taxation or taxation of the wealthy. Left-libertarians, on the other hand, cannot so easily appeal to the methods of universal taxation and taxation of the wealthy, as they are illegitimately coercive. One such method left open to the left-libertarian is one proposed by Michael Otsuka. He argues that both left-libertarians and liberal egalitarians should find the method of taxation of the unjust to be a reasonably strong way of raising revenue. In this paper, I point out problems with Otsuka’s argument, as well as directly criticize the method of taxation of the unjust.
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Notes
All of the preceding quotations, characterizing the four methods, are from Otsuka. See Otsuka (2003, p. 43).
This argument is taken word-for-word from Otsuka. See Otsuka (2003, p. 43).
I would like to thank a reviewer from this journal for pointing something like this out to me.
There is one further thing that should be said here. Although P1* and P1 are distinct claims, I should point out that P1 can be interpreted really in one of two ways. P1 can be interpreted under the assumption that non-universal giving is sufficient for providing for the disabled. In that case, its meaning would collapse to P1*. Or P1 can be interpreted under the assumption that non-universal giving is not sufficient for providing for the disabled. But if non-universal giving were not sufficient for providing for the disabled, then how could P1 be true at all? That is, if non-universal giving is not sufficient in certain cases, then how could it be preferred by anyone in those cases?
There is, though, one way in which we could say that ‘Unjust’ has genuinely chosen to provide for the disabled. In choosing to perform criminal act A, ‘Unjust’ has been motivated to do so for two main reasons: (i) whatever reason for performing criminal act A—e.g., getting money, and (ii) knowing that if she got caught, at least she would be doing something which benefited the disabled. Thus, her choice is something like this: ‘I choose to perform act A, and I choose to provide for the disabled, were I to get caught doing act A.’
The results which follow are probably counterintuitive to most, yet for me, they very much align with my intuitions. Nevertheless, my intuitions are not the measure of the intuitions of others.
If someone has acted unjustly to cause a disability or has taken advantage of someone with a disability, then that is a separate matter. There is nothing within the concept of ‘acting unjustly’ which includes the concept of ‘causing disability.’ Now, if someone causes a disability, then, of course, they must compensate and perhaps be punished, as well. Additionally, anything that they acquired through their injustice, they must give up. We could say that they are entitled to their gains. But Otsuka’s proposal is that we tax/punish the unjust over and above such that they provide for those that they did no injustice to.
Recall the debate between Nozick, a paradigm libertarian, and Rawls, a paradigm liberal egalitarian, over holdings and earnings based on our natural assets. According to Rawls, since we do not deserve our natural assets, we do not deserve our holdings and earning which are based on them. Nozick counters by saying that there is a difference between desert and entitlement. Although we may not deserve out natural assets, we are entitled to them, and to our holdings and earnings based on them. I cannot settle this debate here. I can only point to one possible idea. Nozick may be right to talk about our being entitled to our natural assets, in that no one else has a right to use them without our consent. But even if he is right about this, it might still be the case that we are not entitled to everything that we acquire by our using them. That is, others may not use them without our consent, but if we use them to acquire goods, then we may have to pay taxes on these goods. Note that my suggestion still allows for an error-theory of entitlement. When we say that we are entitled to our natural assets, what we are referring to is not an entitlement, but instead to a fact concerning rights; others do not have a right to use our natural assets, but they do have a right to collect taxes on goods that we acquire by our using our natural assets. See (Rawls 1971, pp. 310–315). And see (Nozick 1974, pp. 174–182, 224–231.
Note that I mean ‘complain’ not in the sense of ‘being capable of complaining’ but instead ‘worthy of complaining sense.’ That is, there some kind of moral basis to the complaint being made.
Rawls’ work can be seen as one of the classic works which distinguishes between distributive and punitive justice. Furthermore, in reminding us of the distinction between the two, he discusses the possibility of there being no need for punitive justice. For example, Rawls writes:
In a well-ordered society there would be no need for the penal law except insofar as the assurance problem made it necessary. The question of criminal justice belongs for the most part to partial compliance theory whereas the account of distributive shares belongs to strict compliance theory and so to the consideration of the ideal scheme. To think of distributive and retributive justice as converses of one another is completely misleading and suggests a moral basis of distributive shares where none exists. (Rawls 1971, p. 315)
Actually, I’ve already mentioned another possible world in which taxation of the unjust would be preferable. This is a world in which we must replace non-universal giving with some other method, even though non-universal giving is sufficient. A replacement that required taxation would be illegitimately coercive, and so to minimize illegitimate coercion, we (including liberal egalitarians) would choose taxation of the unjust.
I apologize to the reader for the ‘Kantian length’ of this sentence. This, though, is the best way I could describe the first horn of the dilemma.
Note importantly, though, that even if his arguments for his premises are good under the assumption that non-universal giving is sufficient, Otsuka nevertheless must be able to counter some of the arguments I presented against taxation of the unjust in its own right. For example, recall the odd implications of his rejection of upper limits to punishment, and the fact that one’s punishment could vary based on arbitrary factors like number of criminals and the cost of providing for the disabled.
References
Feinberg, Joel. 1965. The expressive function of punishment. Monist 49: 397–423.
Kymlicka, Will. 2000. Property rights and the self-ownership argument. In Left-libertarianism and its critics, ed. Peter. Vallentyne, and Hillel. Steiner, 295–321. New York: Palgrave.
Nozick, Robert. 1974. Anarchy, state, and utopia. New York: Basic Books.
Otsuka, Michael. 2003. Libertarianism without inequality. Oxford: Oxford University Press.
Quinn, Warren. 1985. The right to threaten and the right to punish. Philosophy and Public Affairs 14: 327–373.
Rawls, John. 1971. A theory of justice. Cambridge, MA: Harvard University Press.
Acknowledgements
I would like to thank Peter Vallentyne for first introducing me to the topic of this paper. I would like to thank Brian Kierland for his many helpful comments on an earlier version of this paper, as well as Kathryn Robinson for her organizational and stylistic comments on a later version. And I would also like to thank Alan Tomhave for helping me to figure out what I was trying to say with the earliest version of this paper.
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Dittmer, J. Raising Revenue for Persons with Disabilities. Res Publica 15, 33–51 (2009). https://doi.org/10.1007/s11158-008-9061-3
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DOI: https://doi.org/10.1007/s11158-008-9061-3