Chapter 2: Making the Unjust Provide for the Disabled

In Chapter 1 the author argues the following:

- distribute unowned worldly resources across disabled so as to achieve equality of
opportunity for welfare
- disabled should invest, rent, or sale those resources to the same degree as able-
bodied individuals
- disabled would be able to support themselves through voluntary exchanges with the
able-bodied that do not involve forced assistance
- that´s how to achieve equality of opportunity without encroachments upon anyone's
robust-libertarian right of selfownership

In the absence of voluntary charitable contributions, ¿what should be done when it´s
possible to provide for basic needs (food, clothing, shelter, and medicine) of those who
lack the ability to engage in productive labour only through a distribution of resources
which encroaches upon the libertarian rights of self-ownership of others?

Author says we shall assume that the rest of people lack the desire to engage in
productive labour for others beyond that which is necessary for their own subsistence, no
matter how wealthy they are (lack of motivation).

Author proposes a common ground between liberal egalitarians who endorse the welfare
state and libertarians who endorse the minimal state: support an unfamiliar means of
forcing able-bodied individuals to come to the assistance of the disabled in order to
provide for their basic needs. Assistance would be provided by coercive taxation of those
able-bodied individuals convicted of performing criminalized acts (“the unjust”).

Author considers 4 methods of raising revenue, sufficient to sustain the disabled:

1. Universal taxation: involuntary, inescapable, and coercively enforced taxation,
ensuring them to be making a roughly equal sacrifice on behalf of the disabled.
2. Universal giving: voluntary contributions by each one, identical to the amount they
would have been taxed under method 1.
3. Non-universal giving: voluntary contributions exclusively from a generous but
relatively small portion.
4. Taxation of the unjust: coercive taxation of those who have been convicted of
performing criminalized acts that it was reasonable to expect them to avoid, even
knowing they would be subject to such taxation

SECTION I
Main argument: Liberal egalitarians will discover that taxation of the unjust would mitigate
the objectionable nature of the coercion even if this case is ultimately less strong than the
case that can be made for the coercive taxation of all able-bodied individuals. Liberal
egalitarians should regard the following premises:

P1: Non-universal giving is strong as universal taxation.

- Universal giving might be the best method. Voluntariness and its universal and
egalitarian nature is approved (vs. non-universal giving)
- Universal giving might be preferred over universal taxation and taxation of the
unjust (both involves coercion)
- Universal taxation won’t have objections if it were the only way
- Non-universal giving, however, is preferred because does not implies coercion
 - They place more weight on the avoidance of coercion than the realization of
an egalitarian distribution of the cost of providing for the disabled
- They already prefer voluntary schemes in the case of national defense
- Non-universal giving does not preclude the state from offering to the disabled
the guarantee that coercive taxes would be imposed to raise the necessary
revenue to meet their needs if voluntary contributions are insufficient
(analogy to illustrate: volunteer army is backed up by the certainty of a draft in
the event that there are not enough volunteers to meet vital defense needs).
- Under a scheme of non-universal giving the generous minority would already
have provided for the disabled
- The redistribution is a non-public good that is exclusively directed toward
the disabled rather than a good that is enjoyed by the non-generous majority
- The benefit that each able-bodied person receives from the creation of a
welfare state would not be likely to outweigh the cost to him of contribution
toward the welfare state under universal taxation
- Possible objection to non-universal giving: able-bodied stand in the same
relation to the disabled: being members of the same society leads to an equal
obligation on the part of each of the able-bodied to provide for disabled.
- However, unlike the analogy of relation between siblings towards making an
equal sacrifice in order to ensure that their parents are provided for in their old
age, relation between the able-bodied and the disabled in a society is almost
entirely a relation amongst strangers

P2: Taxation of the unjust, not as good as non-universal giving, shares its virtues
- In taxation of the unjust revenue is coercively extracted via threat of
imprisonment rather than voluntarily contributed for the sake of the disabled
- From an egalitarian point of view, universal taxation is superior to taxation of
the unjust, as well as non-universal giving
- However, in taxation of the unjust, forced contribution is consequence of
an unforced choice to do wrong (illegal act voluntarily performed)
- Remarks of H. L. A. Hart Give a fair opportunity to choose between keeping
the law required for society's protection or paying the penalty is a method of
social control which maximizes individual freedom within the coercive
framework of law.
- Method 4 takes most of the sting out of state coercion by exempting all who
refrain from doing that which they have no right to do from such coercion.
- Liberal egalitarians might well prefer this to universal taxation when sufficient
revenue could be raised by method 4, even though they won’t reject universal
taxation when sufficient revenues could not be raised through method 4

SECTION II
Main argument: Libertarians who reject standard schemes of coercive redistribution
taxation won´t be able to resist the case for taxation of the unjust

Libertarians such as Nozick consider standard schemes of redistributive universal taxation

to be unjustified because they regard its inescapable coercion as a great evil. They should
be able to endorse taxation of the unjust when purely voluntary contributions are not
forthcoming.
Libertarianism, unlike anarchism, affirms the justice of punishing those who violate
the rights of others. Nozick himself adheres to a retributivist theory of punishment that
would condemn excess punitive taxation of the unjust since his retributivism places upper
limits on the severity of the punishments and fines that may be visited upon a criminal.
Nevertheless, he acknowledges the possibility that contemporary governments might
make penalties to be monetary, and use them to finance various government
activities. A protective association would use remaining funds to reduce the price of its
services.

In Hart's writings is the basis for a theory of punishment congenial to the tenets of
libertarianism and supportive of punitive taxation of the unjust. Each person is to be
protected against the claim of the rest for the highest possible measure of security,
happiness or welfare which could be got at his expense by condemning him for a
breach of the rules and punishing him. Justice happens when humans treat all alike by
attaching special significance to human voluntary actions and forbid the use of one human
being for the benefit of others, except in return for his voluntary actions against them.

SECTION III
Main argument: Taxation of the unjust is preferred over a punishment in excess of what
justice permits.

It is likely that in order to raise the necessary for the disabled one would have to impose
very stiff fines on those who commit crimes. Many liberal egalitarians and libertarians may
argue that there are strict upper limits to the amount of punishment that one can justifiably
inflict in response to a given crime; however, one could not raise enough money unless
one punished criminals more severely than their crimes warrant. Most do not object to
the harsh punishment of hard-to-detect but relatively minor crimes, if such harsh
punishment is the only economically feasible means of deterring that crime.

The value of punishment as a means of communicating the appropriate level of society's

condemnation of a crime might be used as a rationale for strict upper limits. Within lower
and upper bounds, there is a fair amount of room for raising the magnitude of penalties
across the board without sending the wrong message. The punishment of severe crimes
harshly than less severe ones might be necessary to communicate the relative
moral seriousness of the various crimes.

Liberal egalitarians and libertarians will not have any compelling objection to the
assistance of the disabled through the taxation of the unjust within these limits. Any
partial replacement of universal taxation with the taxation of the unjust would be a
move in the direction of a more voluntary welfare state than the welfare state of
traditional liberal-egalitarian theory: a welfare state that approaches that point at which
it is sufficiently voluntary that even a libertarian could not object to its realization