BILCHITZ - Egalitarian Liberalism, Distributive Justice and New Constitucionalism

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Egalitarian Liberalism,

Distributive Justice and theNew Constitutionalism

David Bilchitz

Abstract: These modern constitutions that have been adopted largely in theGlobal South enshrine a set of divergent values and rights that embrace both

political philosophical concerns relating to liberty as well as distributive equal-ity. This article seeks to grapple with the approach to distributive justice thatcan best give expression to the multiple normative commitments of these con-stitutions as well as key institutional features thereof. I argue for these societiesto adopt what I term a two-tier theory of distributive justice: these theoriesrequire a set pattern or threshold to be achieved in a certain domain but alsoallow for a tolerable variation in resource distribution in another domain. Iseek to show how two of the foremost egalitarian liberal theories of distributive

justice that of Ronald Dworkin and John Rawls exemplify this structure as

well as the resources they have to address the problems thereof. I then arguethat a two-tier structure of a theory of distributive justice can help explain andreconcile key features of these modern constitutions. In particular, I shall seekto show the manner in which such theories conform to understandings of therole of a constitution, and the importance of preserving space for democraticdecision-making. At the same time, two-tier theories assist in delineating theappropriate role constitutional courts should play in addressing the distributionof economic resources in society. These theories also have important implica-tions for the role of the state and markets. Such a structure, I shall conclude,

gives effect to a particular conception of equality as well as liberty and somanages to reconcile these two normative values.

Keywords: constitutional courts, constitutions, democracy, distributive justice,equality, judicial review, liberty, markets, socio-economic rights, two-tier

Introduction

In the last twenty years, several countries have adopted new constitutions: inEastern Europe, in Latin America and Africa. The original ground-breakingconstitutions of France and the United States included a list of fundamentalrights but limited these to civil and political liberties. The modern constitutions

Theoria, Issue 140, Vol. 61, No. 3 (September 2014): 47-69

doi:10.3167/th.2014.6114004 ISSN 0040-5817 (Print) ISSN 1558-5816 (Online)


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(in parts of the world often referred to as being in the Global South), however,invariably contain similar provisions in their bill of rights but also a set ofentitlements governing the distribution of socio-economic goods in society.

These constitutions thus set themselves up not only as a shield against theexercise of state power but also contain core normative commitments that stateinstitutions have obligations to address questions relating to the distributionof economic resources and opportunities (Bilchitz 2013: 50).

These twin goals of new constitutions suggest that they wish to embraceboth the set of concerns traditionally associated in political philosophy withthe advocates of liberty as well as those embraced by advocates of distribu-tive equality.1 Many questions, however, arise in this regard: are the projectsof protecting civil rights and a concern for a just social resource distribution

compatible? Are there inevitable trade-offs between the two? The normativegoals of the new constitutions suggest that both are realisable together or, atleast, a fair balance can be achieved between these concerns. Yet, is this true?

The constitutionalism that has recently emerged has not answered many ofthese burning questions. Instead, constitutions have enshrined divergent valuesand rights without providing a normative guide as to how they are to be recon-ciled. Inevitably, the legislature and executive must adopt policies that seek torealise both sets of values. The judicial branch which, in these modern consti-tutions, is usually given the power of judicial review over legislation and poli-

cies emanating from the other branches, is required to interpret these valuesand rights in a manner that renders them congruent and meaningful. This arti-cle seeks to grapple with the political philosophical approach to distributive

justice that can best give expression to the multiple normative commitmentsof these constitutions as well as key institutional features thereof.

The first part of the article commences by arguing that distributive justicetheories may have differing structures. I focus on outlining what I term two-tier theories of distributive justice which I contend offer the best possibility ofreconciling liberty and equality. At the level of structure, however, already anumber of concerns and difficulties with such theories can be anticipatedincluding achieving a determinate understanding of the f irst tier, and ensuringthat the different tiers remain distinct. The second part of the article thanattempts to show in what way the theories of two famous egalitarian liberals John Rawls and Ronald Dworkin exhibit the two-tier structure. I also inves-tigate the manner in which the problems relating to that structure affect theirrespective theories and the resources they have to address these problems.

The final part of the article contends that a two-tier structure of a theory of

distributive justice can help explain and reconcile key features of the moderndemocratic constitutions of the Global South. In particular, I shall seek toshow the manner in which such theories conform to understandings of therole of a constitution, and the importance of preserving space for democraticdecision-making. At the same time, two-tier theories assist in delineating theappropriate role constitutional courts should play in addressing the distribution

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of economic resources in society. These theories also have important implica-tions for the role of the state as involved but not unconstrained and preserve alimited role for market-based distributions. Having considered the relationship

between the two-tier structure and modern constitutions, I conclude by con-sidering the manner in which such a structure gives effect to a particular con-ception of equality as well as liberty and so manages to reconcile these twonormative values. The ultimate goal of this article is to provide an understand-ing of the broad contours of an egalitarian liberalism and the challenges thatface it - that is consonant with the recent developments in modern constitu-tionalism of the Global South.

Two-tier Distributive Justice Theories

The Structure of Distributive Justice Theories

One of the difficulties with bringing together two quite different sets of valuesis the tendency to give primacy to one set over another. I would like to suggestin this article that, when considering the design of a constitution, it is impor-tant to pay attention to the structure of a theory of distributive justice, whichvaries according to the values which are regarded as primary.2 An attempt toharmonise equality and liberty will thus have particular implications for the

structure of a theory of distributive justice. In turn, this will affect the partic-ular manner in which the values and rights are expressed in a constitution andthe design of the institutions that are developed to give effect to these substan-tive features of the constitution.

I have spoken about the structure of a theory. To understand this notion, it isuseful to employ a distinction drawn by Robert Nozick (1974: 15560) betweenwhat he terms patterned and unpatterned theories of justice. A patterned the-ory, Nozick (1974: 156) contends, specifies that a distribution is to vary alongwith some natural dimension, weighted sum of natural dimensions, or lexico-graphic ordering of natural dimensions. In simpler language, it is possible tocapture this idea by saying that a patterned theory seeks to specify a particular

pattern of distribution that resources should have in society which is linked to aparticular criterion. There is only one all-encompassing view of how resourcesshould be distributed, which I shall refer to as a one-tier structure. Consider asimple view, for instance, that a just distribution of resources in society is onewhere everyone is to be provided with an equal amount of resources. In order tomake sense of such a view, it is necessary of course to quantify what constitutes

an equality of resources. One could imagine, in modern times, someone advo-cating that the total annual gross domestic product (GDP) of a particular coun-try is to be divided into equal shares amongst the citizens in a particular state.Historically, certain communist states could be regarded as having sought toimpose a one-tier structure of distributive justice on their societies, and soughtto regulate the portion of resources each citizen could hold.

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There are many difficulties that may arise with one-tier theories, only twoof which I mention here.3 First, Nozick contends that any attempt to maintaina particular pattern would require continual interference to stop people trans-

ferring resources to others or to correct for such transfers, in other words toforbid capitalist acts between consenting adults (Nozick 1974: 163). One-tier theories may indeed seek to achieve their conception of equality, butthey cannot do so without a serious invasion of individual liberty. Secondly,such a structure of distributive justice avoids holding people responsible fortheir spending decisions. No matter how much they spend or save, and nomatter what decisions they make, they will always be returned to a particularlevel of resource holding. This would those with expensive tastes to imposecosts on others who are more prudent and penalise the latter for their frugal

preferences (Dworkin, 2000: 48-49).In the face of these (and other) objections, Nozick argues that any view

which values the liberty of individuals (as he conceives of it) must allow indi-viduals to transfer resources between themselves, from an initially equal base-line, in the manner in which they choose. They must also bear the costs oftheir choices as an incident of this freedom. A just distribution is simply onethat flows from a process whereby initial acquisition was just and the processof transfer is voluntary (Nozick 1974: 151).4 Whether a distribution is just ornot is dependent on the conformity of the history of transactions engaged in

by the parties in question with the principles of the entitlement theory. Thereis no particular pattern or distribution that must be achieved and, so, Nozickstheory exemplifies what I term a no-tier structure of distributive justice.

Such a theory may lead to a society, for instance, with all having very little,some being very poor and others very rich, or one in which everyone leads a

broadly middle-class lifestyle. Given the process-orientated nature of the the-ory, it is likely though that there would be a large variation in the distributionof resources in such a society. Equality only really matters for Nozick so longas individuals are equally guaranteed the basic negative liberties he values(Sen 2009: 291) and have strong protections for their ability to hold propertyand transact. This view has the consequence that some individuals in societymay land up in positions in which they suffer severe hardship and, in extremecases, may even face severe threats to their survival. If the process that led totheir impoverishment was fair, there is nothing unjust about their predica-ment and no requirement that the state intervene in any way to address theneeds of these individuals. The theory thus privileges a particular account ofliberty at the expense of ensuring even a basic level of equality.

Furthermore, property relations in the Global South are so infected withthe history of injustice that it is difficult to hold that any distribution ofresources that exists today is unaffected by such an unjust history. A purely

process-based historical entitlement theory thus becomes impossible to sus-tain in this context. Nozick himself admits that under actual conditions ofhistorical injustice, it might be best to view some patterned principles of

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distributive justice as rough rules of thumb meant to approximate the generalresults of applying the principle of rectification of injustice (Nozick 1974:231). That is a damaging admission for Nozick to make and renders his the-

ory of severely restricted relevance when being applied to the modern contextof the Global South.

Two-tier Theories

Nozick only distinguishes between two types of theories: those that are pat-terned and those that are not patterned. I wish to contend that there is a setof theories which falls into a third category which is of great importance andwhich we may term as being imperfectly patterned theories. These theoriesrequire a set pattern to be achieved in a certain domain but also allow for a tol-

erable variation in resource distribution in another domain. They may also bereferred to as a two-tier theory of distributive justice: they hold that there isa certain distribution of resources that must be achieved and guaranteed(which can be referred to as the first tier). The threshold or pattern of distrib-ution required diverges between different theories. However, this distributiononly addresses certain minimum conditions for distributive justice and doesnot exhaust the distribution of resources in the society. Beyond this thresholdor pattern, there are still numerous possibilities for how resources may be dis-tributed and, in this second tier, there are various forms of distribution that are

consonant with distributive justice. A two-tier distribution is thus not all-encompassing: it does not seek to specify the exact pattern of distribution ofresources that is just in a society and there is a tolerable variation of resourcedistribution in the society. The role of the state is concomitant with this: thestate must generally be involved in ensuring the first tier is met. It need not,though it might, be involved in the particular form of distribution in the secondtier, though in doing so it must not intrude extensively on individual liberties.The state is thus involved in distributive justice questions but it is not requiredto determine the exact distribution of resources in the society.

Several difficulties may also, however, be anticipated to arise in relation tothese theories. First, there is the problem of determining the threshold of dis-tribution that must be guaranteed to all as the first tier. That threshold must besufficiently determinative to be meaningful such that it can guide state action.There may also be a need to prioritise the distribution of particular resources(and the achievement of a certain level of functioning) within this threshold.Second, the first tier must not be all-encompassing and lead to a fully deter-minate pattern of resource distribution in the society. There is always the dan-

ger that the requirements involved in reaching the f irst tier threshold may leavevery little room for the second tier and a tolerable variation of resource distri-bution. For instance, if the first tier requires all individuals to be guaranteed aminimum level of functioning, the resources of the second tier can be spent ondisproportionately ensuring a very small group of individuals who are severelyhealth-impaired achieve a small improvement in their level of functioning.



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The resources that were meant to vary in the second tier will, however, havebeen exhausted by seeking to meet the requirements of the first tier.

Third, there is the converse problem that too great a resource variation (or

inequality) in the second tier may imperil the realisation of the first tier (seealso Liebenberg forthcoming). There are some recent studies, for instance,which demonstrate that there is a relationship between income inequality andhealth outcomes such as life expectancy (Daniels et al. 1999). Wilkinson(1996: 53), for instance, quotes a study in Northern England which found thatdeath rates were four times as high in the poorest 10 per cent of wards as theywere in the richest 10 per cent. Interestingly, this correlation is, in many cases,independent of the absolute material position of the worst-off in society.For example, in 1996, black American males had an average income of

U.S.$26,552 and a life expectancy of 66.1 years. Males in Costa Rica had anaverage income (measured in terms of purchasing power parity) of onlyU.S.$6,410, yet they had a life expectancy of 75 years. Despite having fourtimes the real income, black American males had nine years less lifeexpectancy than males in Costa Rica (Marmot and Wilkinson 2001). Thisseems to suggest that income inequality (which may on two-tier theories be

permissible in the second tier) can play a part in contributing to decreased lifeexpectancy (which would likely be a matter to be guaranteed in the first tier).5

It will be unacceptable for the variation in the resource distribution of the sec-ond tier to prevent the realisation of outcomes required by the first tier.

The Two-tier Structure in the Egalitarian Liberal Tradition

A two-tier theory appears to be most consonant with the project of harmonis-ing a concern for equality and liberty. Whilst it provides no all-encompassingaccount of equality, it provides for a domain in which all in a society are equal.The domain involves specifying a threshold which is not, however, a fulldescription of how all the resources in the society are to be used. There is thusa tolerable variation that may shift according to the exercise of individualchoice and responsibility. The state also has the power, albeit limited, to inter-fere with individual choice. I now wish to consider two of the most famoustheories of distributive justice and the sense in which they exhibit the structureof two-tier theories. Understanding this structure, I will suggest, helps to high-light a number of important features about these theories. I shall also considerthe manner and extent to which they address the concerns raised above in con-

nection with such theories.John Rawls Theory of Justice

John Rawls (1999a) famously constructs a procedure (known as the originalposition) to determine the principles of justice. The procedure is set up so asto include individuals conceived as free, equal, rational and self-interested and

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to enable them to make choices about the principles of justice that will governtheir society. Individuals are conceived of as being behind a veil of ignorance:they lack knowledge about their own talents and preferences or social posi-

tions in the society. The information they have is that they require certain pri-mary goods for whatever conceptions of the good they might have: theseinclude certain basic needs (natural primary goods) as well as social primarygoods, which include liberties, income and wealth and self-respect. Rawls(1999a: 53) identifies the following principles which individuals, he claims,would choose behind the original position:

(a) Each person is to have an equal right to the most extensive scheme ofequal basic liberties compatible with a similar scheme of liberties for

others; [equal basic liberties principle](b) Social and economic inequalities are to be arranged so that they are

both (i) reasonably expected to be to everyones advantage [differenceprinciple] and (ii) attached to positions and offices open to all [equalopportunities principle].

Rawls (1999a: 53) places a strong emphasis on the equal basic libertiesprinciple, which he claims takes priority over the other principles. Rawls(1993: 3256) also recognises, however, that ignorance and poverty, and the

lack of material means generally, prevent people from exercising their rightsand from taking advantage of these openings. He claims thus that we mustdistinguish between liberty and the worth of liberty (1993: 326). A society inwhich individuals have nominal liberty but are starving is not one in whichliberty has much worth.

The main principle governing social and economic resource distribution isthe difference principle. The justification for the difference principle essen-tially involves recognising that, behind the veil of ignorance, individuals wouldgenerally have reason to prefer an equal distribution of resources as they wouldnot know where they would land up in society. However, Rawls contends, peo-

ple would accept that everyone might be able to do better for themselves byaccepting some level of inequality. Thus, if incentives are necessary to encour-age productivity, efficiency and innovation, all individuals would be better off

by allowing some inequality to provide incentives and thus gain the benefitscreated thereby (Rawls 1999a: 1301). The difference principle thus enablesinequality to exist provided it is to the greatest benefit of the least advantaged.

In what sense could Rawls theory be regarded as a two-tier theory? As has

been mentioned, Rawls recognises that the liberty principle has priority, yetwithout any resources such liberty may be purely formal. It is unlikely thatpeople in the original position would agree to any level of inequality that didnot in fact guarantee that their liberties would be worth exercising. Rawlsconsiders the possibility that the worth of liberty requires guaranteeing everyindividual a fixed bundle of primary goods: he, however, finds that such a



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suggestion is superfluous in light of the difference principle as any fractionof the index of primary goods enjoyed by the least advantaged can already beregarded in this manner (1993: 329). Rawls thus is of the view that all would

be guaranteed a certain level of goods by virtue of considering what would benecessary to make the liberties (guaranteed in the first principle of justice)meaningful. The difference principle too would ensure that the least advan-taged be entitled to a certain level of primary goods. Rawls (1999a: 244)indeed contends that one of the institutions necessary for a society that giveseffect to the difference principle is a transfer branch which ensures the estab-lishment of a social minimum. This level of distribution could thus be regardedas representing the first tier (according to the structures outlined above).

The difference principle, however, also allows for inequality beyond the

minimum provided it is to the greatest benefit of the least advantage. There isa clear constraint placed on the inequality that may develop but, nevertheless,the resources each individual holds may vary. Given these equal libertiesand certain other conditions secured by institutions in particular, equalityof opportunity and a social minimum any one of a wide range of distribu-tions of good things taking place as a consequence of legitimate inequalitiesof the second part of the social structure is acceptable to justice (Rawls1999b: 889).

Rawls theory, however, also can be seen only to offer partial solutions to

some of the difficulties facing two-tier views. Part of the problem with apply-ing Rawls theory is the attempt to achieve some level of certainty as to thethreshold of resources that a society must guarantee. He states that [o]nce thedifference principle is accepted, however, it follows that the minimum is to beset at that point which, taking wages into account, maximizes the expectationsof the least advantaged group (1999a: 252). Setting these expectations, how-ever, involves considering the long-term prospects of the least favored extend-ing over future generations (ibid.). Setting a social minimum for Rawls thusinvolves establishing somehow what would maximise the expectations of theleast advantaged group; it also involves understanding when too high a mini-mum would reduce efficiency and innovation in the society; and, further,requires taking into account some kind of saving for future generations andthe maintenance of just institutions. Whilst these factors may all be sensible,they are very complex and do not readily allow for a clear answer as to whatlevel or threshold of equality will be guaranteed in a just society.

The lack of clarity as to what Rawls theory entails renders it difficult torespond to the challenge as to whether the social minimum in question would

usurp the second tier. The difference principle is meant to answer this problemby holding that the least advantaged would realise that too high a minimumwould lead to serious losses in incentives which would impact upon efficiencyand innovation in the society. This in turn would harm the least well-off. The

problem with this justification is that it can go too far and allow too muchinequality and too limited a social minimum: if we accept a general justifica-

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tion that incentives enhance productivity and innovation which all benefit theleast advantaged, the difference principle could be compatible with a highlevel of inequality.

This leads us to the second problem: the difference principle allows forinequality but, again, it is unclear exactly what level of inequality would beallowed or not. If the second tier is too great in extent, it could well be arguedthat too great a level of inequality would harm the least advantaged. Class and

power structures emerge that reduce the prospects for the least advantaged toimprove their lot. Some limitations would thus need to be placed on the levelof inequality that develops. In some sense, the difference principle thus con-tains a clear limitation on the amount of inequality that may develop in a justsociety: the extent of the second tier (the realm of inequality) is dependent

upon whether it advances the interests of the least well-off. It is, however,clear that determining when inequality is to the greatest benefit of the leastadvantaged is going to be difficult to determine.

Rawls theory thus appears to include a high level of indeterminacy, whichdoes not render it particularly helpful for practically ascertaining the degreeof distribution that can be held to be fair in a constitutional democracy. Itinstead perhaps can be seen to be particularly useful in this context for twokey elements: first, it appears to instantiate very strongly the structure of atwo-tier theory of distributional equality, though it lacks specificity as to howto specify the tiers in question; secondly, it appears to articulate a point ofview from which justice can be ascertained: distributional fairness is deter-mined from the perspective of those who are least advantaged. Once again, asmany critics have noted, the composition of the latter class is not entirely clear

but it places a requirement on how we evaluate social systems, recognisingthat both dimensions of basic liberties and resource distribution must factor inhow to improve their lot. In the face of these criticisms, I now wish to consideran alternative theory of justice that of Ronald Dworkin which developedout of an attempt to respond to some of the difficulties in the theory of Rawlsand consider how it addresses the problems identified above.

Ronald Dworkins Equality of Resources

There are two principles that form the foundation of Dworkins theory ofequality. The first principle is what he terms the principle of equal importance:it is important, from an objective point of view, that human lives be successfulrather than wasted, and this is equally important, from the objective point ofview, for each human life (2000: 5). Dworkins second principle is what he

terms the principle of special responsibility: one person has a special and finalresponsibility for the success of his life the person whose life it is (ibid.: 5).These two principles are best given effect to by the particular theory of equal-ity he articulates he terms this equality of resources which has three cen-tral components. First, this theory involves the claim that, generally, each

person should receive an equal share of a communitys resources. The next



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two components specify when departures from equality of resources may beallowed. The second component involves the idea that inequalities in the hold-ing of material resources may be necessary to compensate people for personal

traits that arise as a matter of brute luck and that would reduce their holding ofresources over time. The third component involves the claim that inequalitiesin the holding of resources are justified when they reflect choices people makefor which they should be held responsible. I now turn to consider the variouscomponents of his theory in more detail.

Equality of Resources

Dworkin commences his account of equality with a thought experiment. Heimagines a group of shipwrecked survivors who arrive on an island which has

abundant resources and is not populated. These immigrants must decide howthe islands resources are to be divided amongst them. They accept the princi-

ple that no one is antecedently entitled to any of these resources, but that theyshall be divided equally among them (ibid.: 667).

What is an equal share of resources? Dworkin claims that an equal share ofresources does not involve each person receiving an identical bundle ofresources. This is partly because certain resources are non-divisible such asmilking cows and those that are divisible vary in quality the fertility oftracts of land. It would also be undesirable, he claims, as identical bundles of

resources would favour those with preferences that were satisfied by thesebundles over those with preferences that were not satisfied by them. To achievea more equitable distribution of resources, peoples bundles must be allowedto differ. In order to judge when different bundles of resources can be said to

be equal, the envy test is applied.The envy test states that no division of resources is an equal division if,

once the division is complete, any immigrant would prefer someone elsesbundle of resources to his own bundle (ibid.: 67). In order to attain a situationthat is envy free, the immigrants adopt a market mechanism. Each person isinitially given an equal number of clamshells (an item that is not valued initself and can be used as a form of currency). All the items on the island aredivided in such a way that they can be acquired if people desire them. Peoplethen bargain until a situation is reached where there is only one purchaser at a

particular price for each item. Once this point has been reached, the envy testwould be satisfied. Equality of resources aims, in Dworkins view, toequalise the resources devoted to each persons life as measured by a market

process. The auction provides the true measure of the social resources devoted

to the life of one person and fixes it by asking how important, in fact, thatresource is for others (ibid.: 70).

Choice and Circumstance

Having specified in what sense equality is to be attained, Dworkin thenaddresses the circumstances under which inequality may enter his theory. At

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the centre of his account, is a distinction between peoples choices and theircircumstances (ibid.: 3223). Peoples choices are said to reflect their person-alities, which are made up of two parts: the first is ambition, which Dworkin

defines to include all those features of the self that furnish the reasons ormotives for making one choice over another (tastes, preferences and convic-tions, for instance). The second aspect of the personality is character, whichrefers to those traits of the personality that affect the pursuit of ones ambitions(energy, industry, doggedness). A persons circumstances, on the other hand,are made up of their personal and impersonal resources. Personal resourcesinvolve ones health and abilities (general fitness, talents and other capacities);impersonal resources are those resources that can be reassigned from one per-son to another (wealth, opportunities, property).6

Dworkin claims that we take responsibility for our personalities and attemptto modify our ambitions and character where we find them lacking. Our cir-cumstances, however, cannot be changed by individual effort and they are notthe result of individual choice. We must distinguish between what we musttake responsibility for, because we chose it, and what we cannot take responsi-

bility for because it was beyond our control (ibid.: 323). This distinction leadsto a particular theory of distributive justice which recognises two circumstancesin which inequalities in the holding of impersonal resources may be justified.A distribution of resources must be ambition-sensitive: it must reflect the cost

or benefit to others of the choices people make regarding the use of resourcesgained in an equal auction (ibid.: 89). The farmer who produces more cropsdue to her choice to work harder than the farmer next door (who enjoys watch-ing television) should be entitled to the extra income she gains.

However, inequalities must reflect only the differential choices peoplemake, and not their differing abilities. Thus, the distribution of resources must

be endowment-insensitive: it must not be affected by differences between peo-ple for which they cannot take responsibility. If two farmers wish to producethe same amount of produce and are willing to put in the same effort, yet theone has a natural talent at raising crops whilst the other does not, then the tal-ented farmer is not entitled to a greater share of resources. It is unfair, Dworkinclaims, that one person should have greater resources than another due to theeffects of brute luck (ibid.: 92). This principle also applies to disabilities,which generally affect peoples share of resources.

In order to determine the amount that must be redistributed from those whoturn out to be better off to those who turn out to be worse off, Dworkin pro-

poses that an insurance market should be added to the initial auction of

resources. Insurance allows us to estimate how much people would have cho-sen to spend at an initial auction to cover the risk of brute uncertainties affect-ing their lives. The contributions people would have made in such a situationcan be collected as a tax7 and would then constitute a fund from which com-

pensation can be paid to people who are badly off as a result of their disabili-ties or lack of talents.8



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In this way, Dworkins theory of equality allows some to have an unequalshare of material resources to compensate them for significant differences intheir personal abilities. This circumstance, together with inequalities that result

from peoples choices for which they are responsible, would be the two situa-tions in which a departure from equality of resources would be justified.

Does Dworkins Theory Have Two Tiers?

Dworkins theory, as outlined above, appears to be all-encompassing in a cer-tain sense: it appears to give us a particular theory of distributive justice which

provides a full set of principles to determine what constitutes a just distributionin a society. Yet, when we look a little closer, I would contend that it containsseveral features that give it a two-tier structure. As we have seen, after the

original auction, the resources a person holds will need to be sensitive to thechoices they make in life for which they may be held responsible. This princi-

ple exemplifies a core element of a two-tier view: whilst there is some baselineof equality, there is a tolerable level of inequality that exists beyond that base-line which is sensitive to the choices people make. Given the lack of a clear

baseline threshold, in the real world, if Dworkin stopped here, his theory wouldlook very much like that of Robert Nozick where the history and voluntarinessof particular transactions would determine individual holdings. Without a clear

baseline, variation would rule the day.

The hypothetical insurance device, however, is central in mitigating theeffects of choice and in setting a minimum standard of distribution that all canexpect in the real world. This element requires an estimation of the amount

people would have insured for (at the original auction) in order to avoid thenegative effects of brute luck on their lives. A clear problem of course is thatit is not possible to determine what and how much individuals would havechosen to insure against through such a notional device. Nevertheless, thoughno such judgement admits of any exactitude, Dworkin is clear through his dis-cussion of the practical applications of this view that it would support settingup a guaranteed minimum standard of healthcare for all (ibid.: 30719) aswell as a basic social welfare system (ibid.: 32050). On plausible assump-tions, it is likely that people would ensure against the worst harms befallingthem. There remains, however, a lack of clarity as to the threshold of provisionthe hypothetical insurance device would justify in the first tier and how exten-sive it would be. Nevertheless, in attempting to compensate for the effects of

brute luck, Dworkin requires the articulation of a threshold of resources thatis guaranteed to all. That threshold does not exhaust a fair distribution in soci-

ety, which also must be allowed to fluctuate in relation to peoples choices.These are core features of a two-tier view of distributive justice and thusDworkins view is an exemplar of this structure.

As we have seen, though Dworkin articulates a mechanism for determiningthe threshold represented by the first tier, there remains some indeterminacyin this regard. How does Dworkins theory fare in relation to the other two

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problems identified above that can arise with two-tier theories? First, wouldthe first tier require so many resources that little is left over for the space ofchoice? Dworkins theory, however, includes two important and related ideas

that help to address this problem in a fairly convincing manner. The first is thehypothetical insurance market, which places a limit on the resources devotedto the first tier. Individuals would presumably not insure for every conceivablerisk and thus the device itself places a limitation on what would be devoted tothe first tier.9 The second related idea is that of opportunity cost. Dworkinstheory is constructed strongly on the basis that equality of resources must takeinto account the impact ones own holding of resources has on others (ibid.:140). If the impact is too large, one could not have afforded that holding in theoriginal auction. Thus, for instance, traditional worries about utility monsters

who require a large number of resources for a small increase in their wel-fare/preferences are addressed as such people would not be able to affordthat level of resources in any auction. The interests of others thus place a limiton the amount of resources which can be devoted to the lives of any particular

person. This assists in placing limits on the extent of the first tier and leavinga space for resource variation in the second tier.

The final problem raised above concerns whether inequality in the secondtier may affect the ability to realise the f irst tier. This is a more serious problemfor Dworkins view. The view itself is based, as we have seen, on a strong dis-

tinction between choice and circumstance: people must receive the benefitsand bear the costs of their choices but should not have their resources vary forreasons attributable to circumstances beyond their control. Cohen hasfamously criticised Dworkin and sought to show that the environment peoplegrow up in often, for instance, affects their tastes and preferences, some ofwhich will be more expensive to satisfy than others (Cohen 2011: 205).Dworkin denies that one should be compensated for such tastes, but Cohenattempts to show that his refusal appears to be unfair. The underlying principlewhich should be the basis of distribution would be one that compensates indi-viduals for any disadvantage suffered by a person that arises from a source

beyond their control (Cohen 2011: 2932).However, even our capacity to choose itself is in some sense a consequence

of brute luck: the kind of environment we grow up in affects very much thenature and range of choices people face. Our background also influences theextent to which we value the ability to choose: in traditional Islamic or Chinesesocieties, for instance, less emphasis is placed on individual choice than inWestern societies today. The range and nature of the choices that people face

also differ depending on whether they were born into a wealthy family in NewYork or into a poor family in Ghana. The fact is that people identify with andcannot help identifying with aspects of the self that, when analysed, can be saidto arise as a result of brute luck. Ones bodily features, talents and preferencesare all central to the constitution of the self. But, they initially develop naturally,or through social processes, which are in large part just a matter of luck.10 Brute



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luck has partly constituted who we are and we cannot escape the effects thereof.Thus, attempting to distinguish between chosen and unchosen features of theself seems to be like attempting to divide what is fundamentally intertwined.

This line of thought challenges our ability neatly to separate the two tierson Dworkins view. If there is no sharp distinction between choice and cir-cumstance, then it is difficult to determine the scope of a second tier and howmuch variation should be allowed therein. The lack of complete separability

between choice and circumstance also leads us to recognise that the inequali-ties which develop in the second tier would create the environment and cir-cumstances which have an influence on the choices individuals will be able tomake in the future. Since individuals are not neatly separated from oneanother, the choices of some may create an environment which others face

that they have not chosen. The most obvious example of this is newborn chil-dren whose range of choice to realise their preferences may be restricted bythe decisions others have made and the distribution of resources that resultsfrom the variation in the second tier.

Two-tier Theories and Constitutionalism

In the previous section, I considered the manner in which two of the foremost

theories of distributive justice exhibit a two-tier structure and the responsesthey provide to the problems that attach to this structure. In this section, I wishto defend the view that the two-tier structure is best placed to help address andreconcile various features of the modern constitutions that are emerging in theGlobal South. These abstract philosophical theories discussed above offer anormative conception of how to develop a defensible two-tier theory for themodern constitutions with which we are concerned. The concrete project ofgiving effect to a constitution will no doubt require further specification ofthe distributive goals to be achieved within the context of a particular society.It will also require that attention be paid to the problems each of these theoriesface and develop the possible solutions that have been identified above.

Constitutions and the Basic Structure

The modern constitutions of the Global South, as has been mentioned, do notavoid questions of distributive justice: usually, these issues are enshrinedthrough a series of provisions granting individuals entitlements to certainsocio-economic resources often known as socio-economic rights. There are

also usually many provisions in these constitutions that protect civil libertiesand participation in the political community known as civil and political rights.These dimensions of modern constitutions broadly correspond to the entitle-ments which flow from a concern for equality and liberty.

A constitution is, however, a document that regulates the basic interactionsin society: it is not meant to determine all questions in advance for that society

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but rather, in Rawls conception, to set the terms of social co-operation in afair manner (Rawls 1993: 22730). The civil rights protect a space of freedomwithin which individuals are entitled to live out their own conceptions of the

good. They do not determine exactly the manner in which individuals shouldlive nor should those rights do so. Socio-economic rights are similar: they arenot meant to be exhaustive commitments that fully determine the manner inwhich resources are distributed in a society. Instead, they ensure that individ-uals are guaranteed a certain threshold of provisioning, which places con-straints on the permissible range of distributions that may result. Thus, theSouth African Constitution, for instance, guarantees that everyone is entitledto have access to adequate housing and everyone is entitled to have access tosufficient food and water.11 Individuals must be guaranteed the threshold of

resources relating to housing that is adequate and relating to food and waterthat is sufficient. The Constitution is silent about what distribution is fair

beyond the realm where all meet this threshold. These provisions seek toensure that all people are equally guaranteed enough to live decent lives.Constitutions thus are not by their very nature designed to create a fully all-encompassing answer to the question as to how resources are to be distributedfrom that time onwards. Their very goal is to regulate the basic structure ofsociety (Rawls 1993: 258). That structure, it has been recognised in the mod-ern constitutions of the Global South, must include certain constraints placedupon the distribution of resources (and requirements for government action)such that every individuals socio-economic entitlements are met. That levelof distribution is not meant to exhaust the full distribution of resources in soci-ety. As such, the two-tier structure articulated above gives expression to thevery role that constitutions are designed to play in these societies.

Democracy and Two Tiers

Two-tier structures are also strongly defensible for reasons flowing fromdemocratic values. A constitution is passed at one particular point in historyfor a variety of historical and other reasons. The recent constitutional commit-ments represent a historical consensus that certain minimum conditions fordistributive justice must be attained in these societies. Yet, to fix the exact dis-tribution of resources in a society for all time in a constitution would beseverely to restrict the realm of democratic politics and the preferences of peo-

ple in a specific polity. Ultimately, one of the most important decisions whicha society should be entitled to make concerns which particular distribution ofresources it deems to be desirable and the projects it wishes to advance. If this

is fixed for all time at one particular point, the realm of democratic decision-making is severely narrowed. What the modern constitutions seek to do, I con-tend, is to place constraints upon the distributions that can result fromdemocratic decision-making but not fully determine those distributions.

The new modern constitutions essentially recognise entitlements to certainresources that protect the very integrity and well-being of individuals and are



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general necessary conditions for the realisation of their purposes (Bilchitz2007: 645). Without such protections, democracy cannot function properlyas individuals who lack these resources are constrained in their ability fully

and equally to participate in such a democracy (Liebenberg 2010: 32). Theseconstitutions, through regulating the distribution of resources and setting athreshold of adequacy that must be met, thus protect the very preconditionsfor meaningful political participation whilst not determining fully the out-comes of that participation. They also protect the general necessary condi-tions for individuals to realise their conceptions of the good whilst leavingroom for democratic decision-making to advance particular substantive goals.Furthermore, if a constitution were to fix a set, all-encompassing distributive

justice ideal once and for all, it would land up imposing the consensus at one

point in history upon a society for all time in the future. What a two-tierstructure allows is again for a certain threshold to be fixed for all time that

protects the very integrity and well-being of individuals but then to allow forvariation according to the political forces and ideologies that gain majoritysupport at a particular point in time. There is a certain modesty to a two-tierstructure, a recognition that there is strong disagreement about the ultimatequestions of distribution. As we have seen in the context of Dworkins theory,this modesty is also required by our inability to specify rigidly what featuresof an individuals life flow directly from their own choices or circumstances

beyond their control. No-one can fairly or reasonably refuse guarantees thateveryone be adequately nourished in a society; however, whether ultimatelyequality of welfare or resources is to be achieved and which conceptionthereof is better is a matter for determination through democratic debate inthe public political space.

Separation of Powers and the Role of Constitutional Courts

This point draws our attention to the manner in which the two-tier structurealso preserves the democratic space in another way relating to the separationof powers. Most modern constitutions contain provisions to avoid the concen-tration of power in one particular branch of government and divide such pow-ers between, at least, legislative, executive and judicial branches. Judges, inmost of these modern constitutional systems, have the power of judicial reviewand thus have the final say over the interpretation of the constitution and thefundamental rights provisions contained therein. Were constitutions toenshrine a fully all-encompassing vision of distributive justice, ultimately,

judges would be responsible for ruling on such issues. The power of judges

would be greatly expanded at the expense of democratic organs who wouldhave virtually no space in which to vary the distributive scheme that wasalready laid down in the constitution. A two-tier view provides judges with arole in ensuring that the first tier is met and that the socio-economic rightscontained therein are realised. At this point, however, judges must withdrawand leave further decisions surrounding distribution to the legislature and

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executive (provided they conform with other constitutional doctrines such asnon-discrimination and rationality). A two-tier view stresses the need for

judges to leave a space within which decisions surrounding budgets and

resources can be made by elected political organs.One of the difficulties that arises, however, concerns the relative space for

judicial action as opposed to legislative action: one of the critiques of socio-economic rights has, for instance, been that they grant judges too much powerin relation to the distribution of resources and that it is not legitimate for themto interfere with elected branches in this domain (see, for instance, Pieterse2004). A two-tier view helps to respond to these concerns restricting the realmof judicial involvement to the first tier and maintaining a space for democraticorgans to hold sway in the second.

Yet, it may be argued that the first tier (as we have seen in the theories ofdistributive justice discussed above) is not entirely determinate and that two-tier theories struggle to maintain the distinctness of both tiers. If this is thecase, it would seem that representative institutions such as parliament shouldhave some say in the determination of the threshold of provision that is guar-anteed by the first tier. Moreover, there are often difficult controversies as tothe policies that are required to ensure that the first tier is met: do minimumwage laws, for instance, guarantee individuals an ability to have an adequatestandard of living or do they increase unemployment and thus the ability of

some in society to meet their basic needs?12

These objections suggest that it is too simplistic to suggest that the institu-tional division of labour required by a separation of powers doctrine neatlytracks the two tiers of a theory of distributive justice: namely, that the first tieris for constitutional courts and the second tier is for democratic institutions.

Nothing I have said, however, implies this result: the modern constitutions thatenshrine socio-economic rights do not suggest that the realisation of the firsttier is the responsibility of constitutional courts alone. Indeed, the SouthAfrican Constitution clearly provides in section 26(2), for instance, that thestate must take reasonable legislative and other measure, within its availableresources, to achieve the progressive realization of this right. All branches ofgovernment must be involved in ensuring the first tier is reached: the role ofconstitutional courts is one of review, that is to ensure that the policies and

programmes adopted by other branches of government meet the adequacystandards required by the constitution.

Courts thus have a specific role in interpreting the standards or thresholdsrequired by the constitution. They may, in doing so, have regard to the specifica-

tions provided by other branches of government though these can never be deter-minative given that these thresholds are constitutional standards binding on theseother organs. Broad normative and empirical considerations concerning the min-imum conditions of distributive justice for a particular society must inform thestandards that are developed and the insights gleaned from the leading philo-sophical theories discussed above can be drawn on in such interpretations.



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Within the first tier, courts would have a clear and pressing role in develop-ing harder standards rooted in the most urgent interests of individuals in beingfree from threats to their survival, which other branches of government must

be required to realise as a matter of priority (Bilchitz 2007: 208). There is lessroom for reasonable disagreement about the need for ensuring that individualsdo not starve, sleep on the streets or lack life-saving healthcare where, inRawls terms, the worth of liberty is completely diminished. Where such needsare not adequately being attended to by representative branches of govern-ment, judicial intervention would be most clearly warranted. Courts wouldthus have a role to play in ensuring that individuals most urgent need forresources is prioritised. Beyond this, they would need to develop with theallowance for input by representative institutions the more expansive stan-

dards of sufficiency required by the first tier.The tiers thus help us to conceptualise the relative role of the courts and

democratic branches. Socio-economic rights, it is thus suggested, do not pro-vide for a fully specified theory of distributive justice: instead, they requirecourts to have a central role in ensuring a prioritarian concern for those whoface threats to their survival and to engage in a determination of the standardof adequacy required by the first tier. Since there is a need for some fixedstandards in determining the sufficiency and priority levels, these cannotsimply be left to the space of democratic debate and it is here where theexpertise of judges can assist in providing more determinate standards forthe society in question.

However, there is also a need for specific methods and policies for realisingthe constitutional standards that are developed. These, it seems, would best bedeveloped by representative institutions which have the expertise in policyconstruction. These methods would naturally be capable of review by the con-stitutional court against the constitutional standards that are developed: if agovernment abolished minimum wage legislation, for instance, the court may

be required to consider the expert evidence provided to it about whether sucha measure would in all likelihood result in individuals being unable to meetthe standards of adequacy for housing, food and social security required bythe constitution. In this way, representative institutions are provided with thefreedom to develop policy to realise the f irst tier within the constraints set bythe constitution itself (as interpreted by the constitutional court).

The Role of the State and Markets

These considerations suggest that two-tier theories also connect well with a

conception of an involved but not an over-reaching state. The state is notrequired to regulate and determine the entire distribution of resources in thesociety. Instead, the state is responsible for guaranteeing that the first tier ofdistribution is met: beyond that, there is a tolerable variation of distribution.The first tier of distribution, as has been mentioned, has not been seen to bewholly determinate on the philosophical theories examined; at the same time,

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it is clear that in modern constitutions these theories do not confine it to avery minimal level of protection.13 The state is required to guarantee ade-quate housing and sufficient food and water. Achieving these levels of dis-

tribution equally for all involves a large role for the state: there will need to beexpansive programmes to ensure quality healthcare, education, housing andwelfare schemes are in place. This is far-removed from Nozicks minimal con-ception of the state. Yet, at the same time, the state is required to make spacefor individual liberty: it is not required to engage in (and in fact could be pro-hibited from) tracking every transaction of individuals and to redistributegoods according to a desired curve or model.

In the context of the distribution of resources, two-tier views thus maintainand respect a variant of the liberal distinction between the private and the pub-

lic. This distinction has often been employed in relation to the realm of free-dom: the liberal state is one in which the public sphere must be restricted so asto allow for exercises of private autonomy. It is fascinating the manner inwhich a two-tier theory of distribution also embodies a conception of the roleof the public and private. There is indeed a strong role for the public sphere inconditioning the distribution that exists; yet, there must be a space for individ-uals to exercise their own choice within a private sphere. Rawlsian theory maysee such a choice as emanating from the need for incentives to help improvethe lot of all; Dworkinan theory would rather root such a private space in

notions of responsibility underlying his theory. Conversely, private power mayalso be restricted to the extent that it interferes with the achievement of thestandard of equality of sufficiency guaranteed by the first tier.

These ideas have clear implications for the role of free markets within two-tier theories. In some sense, the importance of maintaining the second tierrequires that markets be provided with a domain in which they can operate,yet such theories do not allow markets unrestricted free reign. Market mecha-nisms may be an efficient manner of giving expression to individual prefer-ences: there thus needs to be a variation in what people may have and acquire.Such variation serves the purpose of ensuring that peoples holdings track thechoices for which they may be responsible (Dworkin) and provides incentivesfor activities that are highly valued in society (Rawls). The second tier allowsfor these insights to have some force, though differing societies around theworld will be able to determine democratically how much variation in individ-ual holdings they consider acceptable.

At the same time, the constitutional requirement that the first tier be realisedindicates that markets may only operate within a limited sphere. Apart from

good economic arguments about market failure, the first tier is supported bystrong normative claims that all individuals must be guaranteed a certain levelof resources deriving from their equal importance in the society and the need to

protect their participation in the democratic sphere. Two-tier views are thus notanti-market: yet, they justify restricting the effects of market distributions. Theythus represent a balance between unrestricted capitalism and outright socialism.



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Conclusion: The Contours of Egalitarian Liberalismand Distributive Justice

At present, many developing societies, despite strong normative commit-ments in their constitutions, are essentially operating with a no-tier view ofdistribution, allowing market forces to hold sway with very limited restric-tions. In this article, I have sought to outline a structure of distributive justicefor constitutions that embrace both equality and liberty as central values.Such constitutions should not, I argue, develop a fully all-encompassingvision of distributive justice: it is for democratic politics to determine whatany such distribution should be. Such constitutions should also leave a spacein which individual life chances will vary with their own choices and respon-

sibility. At the same time, such constitutions require ensuring that everyoneis equally guaranteed a certain level of resource distribution. The difficulties,I have argued, arise in arriving at some level of determinacy around the firsttier as well as ensuring that both remain distinct and separate. I have soughtto show the manner in which two of the leading theories of distributive justiceexhibit a two-tier structure and have attempted to address the difficulties withsuch theories.

The inclusion of both values and rights connected with liberty and equalityin modern constitutions may lead some to argue that there is an unresolvedtension at the heart of this modern constitutionalism. Clearly, in order to makethis argument, one needs to develop conceptions of equality and liberty whichare in tension with one another. Two-tier views of distributive justice can, inmy view, offer a hope of showing the manner in which equality and liberty inthese constitutions can be reconciled. The domain of distributional equality insuch views, as has been argued, is restricted to a particular tier; beyond thattier, distributions may vary in accordance with individual autonomy andresponsibility. Liberty, conceived of as unconstrained negative freedom, isrestricted to some extent through attempting to realise the first tier, which willno doubt require progressive taxation and limitations on private propertyrights. At the same time, equal liberty, in another more positive sense, is pro-tected by such a first tier since the very preconditions for every person toexercise their autonomy (as well as to participate in politics) are guaranteed.The restriction on the negative liberty of some serves to expand the effectiveexercise of liberty for all in the society. Moreover, that restriction on negativeliberty is not complete and leaves space for a variation of distribution in accor-dance with individual preference and responsibility.

I have also sought to show how a two-tier conception of distributive justicecoheres well and helps develop institutional features of these modern consti-tutions such as democracy, the separation of powers and the nature of the state.Constitutional courts have a particular role to play in developing the constitu-tional standards required by the first tier and representative institutions toomust deliberate on both the methods to ensure the first-tier threshold is

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realised and on the extent of acceptable resource variation in the second tier.In developing a more detailed conception of these two tiers, and giving con-crete expression to them in policies and court judgements, the contours of a

viable and exciting form of egalitarian liberalism that addresses the severeinequalities facing societies in the Global South will begin to take shape.

DAVID BILCHITZ is a Professor of Human Rights and Constitutional Law atthe University of Johannesburg. He is also Director of the South African Insti-tute for Advanced Constitutional, Public, Human Rights and International Law(SAIFAC) and Secretary-General of the International Association of Consti-tutional Law. He has a B.A. (Hons) LL.B. from the University of the Witwa-tersrand and an M.Phil. in Philosophy and Ph.D. in Law from the University

of Cambridge. His monographPoverty and Fundamental Rights was publishedby Oxford University Press in 2007, an edited collection titled the HumanRights Obligations of Business: Beyond the Corporate Responsibility toRespect? was published by Cambridge University Press in 2013, and he pub-lishes widely in the intersection between political philosophy and constitu-tional law with a particular focus on fundamental rights. The current article is

part of a wider project to develop the conception of distributive justice in theconstitutions of the Global South, which in turn, it is hoped, can contribute

practically to the realisation of these ideals.

Acknowledgements

I would like to thank the referees of this article for their extensive and stimu-lating comments which have played an important role in its revision. I wouldalso like to thank Prof. Daryl Glaser for his collaboration in holding the con-ference on Egalitarian Liberalism for which this article was written and for,consequently, providing the catalyst for my thinking in this area.

Notes

1. I realise of course that there are many different conceptions of liberty and equality and the

issues that arise will differ in relation to the different understandings of these ideas.2. At the level of constitutional design, it is rarely appropriate to instantiate a particular theory

of distributive justice. The importance of leaving space and flexibility for future develop-

ments and social change means that it is desirable to enshrine provisions that provide a par-

ticular structure of how justice is conceived in that community: the exact manner to realise

that structure may vary according to political debate and discussion within that society.



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3. Since the focus of this article is on two-tier theories, I cannot engage in much detail with

the criticisms and responses in relation to one-tier and no-tier theories.

4. Nozick outlines what he terms an entitlement theory of distributive justice which has

three principles: a principle of acquisition, a principle of transfer and a principle of rectifi-

cation.

5. No doubt, there are a number of factors other than income inequalities that play a part in

generating these correlations. These studies do not provide strong support for the idea that

income inequalities are the sole cause of health-care inequalities; but, Wilkinson (1996)

presents a strong case for the claim that income inequalities are a contributing factor to ill

health and attempts to explain this correlation.

6. Unless the context suggests otherwise, I use the term resources generally to refer to imper-

sonal resources such as land, food and income.

7. The compulsory tax would be charged at a progressive rate (Dworkin 2000: 101).

8. Talents and disabilities are treated slightly differently, but the difference is of little impor-

tance for the critical analysis that follows.9. Dworkin (2000: 31417) uses the device to illustrate that people would place some limits

on the expenses devoted to healthcare.

10. Woolman (2013: 44) states that [w]e as a species tend to overemphasize dramatically the

actual space for self-defining choices.

11. Section 26(1) and 27(1) of the South African Constitution.

12. I am indebted to an anonymous referee for this suggestion and example.

13. As we have seen, such a state may prioritise a more minimal threshold of prioritisation or

minimum core that falls short of what is required by the first tier as an interim measure

on the path to realising the level of equality required by that tier.

References

Bilchitz, D. 2007.Poverty and Fundamental Rights. Oxford: Oxford UniversityPress.

Bilchitz, D. 2013. Constitutionalism, the Global South and Economic Justice, in D.Bonilla Maldonado (ed.), Constitutionalism of the Global South: The ActivistTribunals of India, South Africa and Colombia. Cambridge: CambridgeUniversity Press, 41-94.

Cohen, G. A. 2011. On the Currency of Egalitarian Justice and Other Essays inPolitical Philosophy. Princeton: Princeton University Press.

Daniels, N., B. Kennedy and I. Kawachi. 1999. Why Justice Is Good for Our Health:The Social Determinants of Health Inequalities,Daedulus 128(4): 215-251.

Dworkin, R. 2000. Sovereign Virtue. Cambridge: Harvard University Press.Liebenberg, S. 2010. Socio-economic Rights: Adjudication under a Transformative

Constitution. Cape Town: Juta.Liebenberg, S. Forthcoming. Towards an Equality Promoting Interpretation of

Socio-economic Rights in South Africa: Insights from the Egalitarian LiberalTradition, South African Law Journal.

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Marmot, M and Wilkinson, R. 2001. Psychosocial and Material Pathways in theRelation between Income and Health: a Response to Lynch et al,British Medical

Journal322: 1233-1236.

Nozick, R. 1974.Anarchy State and Utopia. United States of America: Basic Books.Pieterse, M. 2004. Coming to Terms with the Judicial Enforcement of Socio-

economic Rights, South African Journal on Human Rights 20: 383417.Rawls, J. 1993.Political Liberalism. New York: Columbia University Press.Rawls, J. 1999a.A Theory of Justice (Revised Edition). Cambridge: Harvard

University Press.Rawls, J. 1999b. Constitutional Liberty and the Concept of Justice, in S. Freeman

(ed.),John Rawls: Collected Papers. Cambridge: Harvard University Press, 73-95.

Sen, A. 2009. The Idea of Justice. London: Allen Lane.

Wilkinson, R. G. 1996. Unhealthy Societies: The Afflictions of Inequality. London:Routledge.

Woolman, S. 2013. The Selfless Constitution: Experimentalism and Flourishing asFoundations of South Africas Basic Law. Cape Town: Juta.



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C o p y r i g h t o f T h e o r i a : A J o u r n a l o f S o c i a l & P o l i t i c a l T h e o r y i s t h e p r o p e r t y o f B e r g h a h n

B o o k s a n d i t s c o n t e n t m a y n o t b e c o p i e d o r e m a i l e d t o m u l t i p l e s i t e s o r p o s t e d t o a l i s t s e r v

w i t h o u t t h e c o p y r i g h t h o l d e r ' s e x p r e s s w r i t t e n p e r m i s s i o n . H o w e v e r , u s e r s m a y p r i n t ,

d o w n l o a d , o r e m a i l a r t i c l e s f o r i n d i v i d u a l u s e .

BILCHITZ - Egalitarian Liberalism, Distributive Justice and New Constitucionalism

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