Turtles in Veils: Justice as Fairness
And today the great Yertle, that Marvelous he,
Is King of the Mud. That is all he can see.
And the turtles, of course . . . all the turtles are free
As turtles, and, maybe, all creatures should be. (Yertle)
So back to Mack. Given the requirement for some sort of sovereign in order to escape the state of nature, how might Mack know he is getting what the sovereign was created to give him? That is, how might Mack figure out if the kingdom of Sala-ma-Sond is a just social arrangement? And, if it isn’t, what can he do about it?
While a contractarian, John Rawls (1921–2002) doesn’t share the traditional task of determining the conditions necessary to bring people together into a legitimate civil society; rather, his is an effort to specify conditions necessary for any government to be just (and so legitimate). For Rawls, essentially justice is fairness—and Mack, like the rest of King Yertle’s subjects, is not being treated fairly.
Consider Mack, a smallish turtle with a blue-black checkered shell, and Desmond, a large turtle with a hawkish beak. Left to create any sort of social relations they might desire, Mack might create a society in which turtles with solid colored shells are required to carry their checked fellow citizens piggyback style and in which smallish turtles are always given first grazing rights in the nearby clover field. Desmond, on the other hand, might create a civil society in which the large and hawk-beaked are given preferential treatment in hiring or housing. Obviously there is an advantage to selecting principles that favor oneself and those like you. As often, these same principles disadvantage those with attributes, tastes, or characteristics unlike yours. Since it is nigh impossible to call a society just that distributes advantages and disadvantages in such an arbitrary manner as nose shape, Rawls reasons that ignorance of things like our own size and shell color will keep us from selecting the principles of justice in a biased manner.
Rawls does this with a thought experiment called the “original position,” an abstracted state of nature that is used to establish the parameters of a just social contract. In this original position, individuals operate under what Rawls calls a “veil of ignorance.” This veil provides an epistemological limit such that each individual is not aware of many of those traits that we often take as essential to our individual identities: are you a male or female? Healthy or sickly? Smart or not so much? Individuals behind the veil lack knowledge of their gender, race, disability, age, economic class, etc. That is, the individual does not know if she will be “advantaged or disadvantaged by natural fortune or social circumstances.”15 This ignorance keeps the person from being able to “tailor principles to the circumstances of one’s own case.”16 That is, self-interest—stripped of the self’s particulars—will generate rules that would justly govern civil society.
Recall Hobbes’s claim that we cannot help but pursue our own interests and are disinterested in the welfare of others except in relation to ourselves. By removing any knowledge necessary to pick out one’s own interests, Rawls argues that we will select just and fair principles for our society. Moreover, as self-interested “generic human beings” we would each select the same principles: none of us would prefer a principle that enslaved persons under 5'4" since no rational being would choose enslavement and none of us is aware of what our own height will be revealed to be.
Similarly, we can determine if our existing society is or is not just by asking if we would be willing to swap places with any one of our fellow citizens. Consider the gender gap in wages in the United States. On average, women make about seventy-seven cents for each dollar received by a man.17 While of course a complicated set of social conditions underlie this disparity, all other things being equal, it is difficult to imagine a rational being opting for what is effectively the lesser wage. Under a Rawlsian scheme, this gendered unfairness is a sign that at least this aspect of current American civil society is unjust.
So, for Rawls, justice proceeds out of fairness. That is, we—as disembodied, rational persons—will recognize the inherent unfairness of certain principles of social organization and so not agree to them from under the veil of ignorance. In the original position, we will only accept principles that would be, if not to our advantage, at least not to our disadvantage were we to turn out to be at the bottom of the social hierarchy. If only the Sneetches had been so prescient.
Rawls generates two principles of justice from his thought experiment, “[That] each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others . . . [and that] social and economic inequalities are to be arranged so that they are both reasonably expected to be to everyone’s advantage.”18 The just society for Rawls will include a social contract under which there are what we think of broadly as “civil liberties” held equally by all with the equal distribution among the citizens, and if there is any inequality in the socioeconomic standing, it must maximize the benefit to those least well off in the society. For Rawls, the social contract is not a matter of legitimacy of government gained by consent of the governed but instead what sketches out the necessary conditions for a just society of self-interested individuals.
A good society will promote justice among its citizens, but as philosopher Iris Marion Young (1949–2006) points out, justice is not “merely” a matter of fairness in the distribution of resources, rights, opportunities, and so forth, as laid out by Rawls. Rather, “Justice should refer . . . also to the institutional conditions necessary for the development and exercise of individual capacities and collective communication and cooperation.”19 This “enabling concept of justice” requires that the law must act as a guarantor that Mack, Desmond, and, yes, even Yertle have the ability “to develop and exercise their capacities and express their needs, thoughts, and feelings.”20 If Young is correct, a civil society that fails in this role is not just and must be made so.
King and the Law
[All persons] are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.21
Are we ever justified in defying unjust rule? To answer this, it would be helpful to explain just why we are obliged to obey society’s laws at all. Recall that the social contract is a complex set of rules and arrangements to which we agree to be bound in order to gain some set of benefits. Essentially, we gain the benefits of living in a community. We escape from the state of nature and receive a guarantee of certain rights enforced by society’s laws. To gain these benefits we agree to follow the laws of the society that makes these benefits possible. In this way we are obliged to follow rules ranging from the speed at which we can drive to not stealing from one another, from how much we pay in taxes to not dumping sewage into the water supply. In this way, under social contract theory there is a strong prima facie duty to play according to society’s rules.
Now, what if those rules are stacked so that one group of persons within the society is denied the rights enjoyed by all of the rest? Locke argued that by failing to provide for its citizens as required, the state has placed itself in a state of war with them and so must be replaced with a new social contract. Prominent leader of the American civil rights movement, Martin Luther King Jr. (1929–1968), took a slightly different approach—not arguing for a new contract but for the fulfillment of the existing one.
In the Jim Crow South, segregation by race was not merely a despicable social practice, it was also written into the law—laws that the African American population had no voice in forming. The objection was not to the law in general; if it had been, King and his followers would find themselves following the path sketched by Locke. Rather, the objection was to particular laws and practices unjustly targeting African Americans. As King puts it in his “Letter from the Birmingham Jail,” the objection was t
o a culture in which “vicious mobs lynch your mothers and fathers at will,” where “hate-filled policemen curse, kick, brutalize and even kill with impunity,” and where the color of one’s skin systematically limited opportunities for education and employment, leaving some citizens “smothered in an air-tight cage of poverty.”22 The social contract was simply not being honored. Essentially, King’s objection is to society’s demand that the disadvantaged group accept the same burdens as all other citizens while they are at the same time being denied society’s benefits. Resistance to these unjust laws took the form of civil disobedience (sit-ins, marches, boycotts, and the like)—activities that directly violated the unjust law and which would minimally result in the arrest of the lawbreaker. As King claims it, “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”23 This “respect for the law” is another way of saying respect for the social contract—a respect that demands it be fully honored by all and for all citizens.
King of the Mud
The laws to which King objected came to be for many reasons, but one of the more obvious is that these laws were formed without the consent of all of those to whom they would apply. The less representative the government, the more likely that unjust laws will be made. It is difficult to imagine oppressive racial segregation would be a legal fact in a society in which African Americans had their interests represented in government. While a representative government doesn’t guarantee perfect laws, it seems much more likely to avoid gross inequity and unfairness.
Could any form of government be less representative of the interests of the citizens of Sala-ma-Sond than a monarchy—a government by, for, and about the whims of one person? The turtles are hungry, they are tired, and they risk cracking their shells; still King Yertle lifts his hand to command more turtles for his throne. And a smallish turtle at the bottom of the stack, named Mack
Decided he’d had enough. And he had.
And that plain little lad got a little bit mad
And that plain little Mack did a plain little thing.
He burped!
And his burp shook the throne of the king! (Yertle)
With that great shake, Yertle the turtle king plummeted down into the mud of Sala-ma-Sond pond and his fellow turtles laughed, never to be oppressed again.
CHAPTER FIFTEEN
Whose Egg Is It, Really? Property Rights and Distributive Justice
Henry Cribbs
Horton the Elephant: “My egg! My egg! Why, it’s hatching!”
Mayzie the Lazy Bird: “But it’s mine! It’s my egg! You stole it from me!
Get off of my nest and get out of my tree!” (Hatches)
In Dr. Seuss’s Horton Hatches the Egg, the issue of whose egg it is seems settled when the shell finally cracks and an elephant-bird emerges. The spectators appear satisfied by this, even shouting “it SHOULD be like that!” (Hatches). They promptly send Horton the Elephant and the hatchling “home / Happy / One hundred per cent!” (Hatches). However, the issue is not as readily soluble as Seuss makes it out. The story could, and should, continue . . .
The hatchling’s half-elephant, but that’s not the last word.
It could still be half Mayzie’s. It’s also half-bird!
We can’t cut it in half, because that would be silly,
So we still should be asking, “Whose egg is it, really?”
One might take the case of Horton the Elephant versus Mayzie the Lazy Bird to be a simple legal custody battle. Well, perhaps not so simple. “Completely unprecedented” might be a better way to describe it. However, treating this case as a parental rights question would lead us far afield into tricky metaphysical discussions concerning when a yolk becomes a bird and whether “a person’s a person, no matter how small” (Horton) (a question Horton is forced to answer in a separate court appearance). Arguments over ova indeed arise outside the pages of Dr. Seuss, as modern-day divorced couples fight over rights to frozen embryos. However, I would rather avoid such difficulties by thinking of the egg, at least for the moment, as mere property rather than as a potential partridge, for even Mayzie herself uses the term stole rather than birdnapped, indicating that for her it’s a question of property rights, not parental rights. Taken this way, Horton Hatches the Egg raises a fundamental question of property rights: How should we decide who owns what?
How would you like for your eggs to be fixed?
Scrambled with labor, please! Really well-mixed!
Both petitioners claim property rights to the egg in question. Mayzie, lazy though she is, certainly has a strong claim insofar as she laid the egg in the first place, but Horton has since provided the elephant’s share of the work in terms of actual incubation. But how in the world could the egg become Horton’s property? One highly influential theory might say it has to do precisely with the work that Horton has done to care for it. In “Of Property,” John Locke (1632–1704) explains that if there is anything that an individual owns outright, it’s his or her own labor. “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.”1 Indeed, we would have to say that Horton has certainly put a mastodonian effort into incubating the egg, sitting on it for three complete seasons—even enduring a mountain-climbing expedition and an ocean voyage while persevering on his precarious perch.
Locke takes this metaphor of putting a lot of work into something quite literally. “Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”2 By putting work, which is undeniably yours, into something, you make that something yours. But of course one can’t just take any old thing and mix a little labor with it to make it yours. Locke explains that this labor-mixing idea does not work for things that are already some other individual’s property. It does work for things that nature provides. The earth provides certain resources to us all in common, free to any who would take them and make use of them. “[A]ll the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state.”3
And so the question now becomes whether or not the egg was in its “natural state,” in common to everyone, or whether it was already someone’s property. Mayzie clearly thinks the egg was already her property before Horton “stole” it. Yet elsewhere in Dr. Seuss eggs seem to be quite easily appropriated as if they were in a state of nature. In Scrambled Eggs Super!, Peter T. Hooper travels the world gathering eggs left and right (and even north-east, in the case of the South-West-Facing Cranes) from various fowls to make his famous “Scrambled Eggs Super-dee-Dooper, Special de luxe a-la-Peter T. Hooper” (Scrambled). Some of the birds do seem to mind his taking them, so that he has to rely on sneaky tricks and fleet-footed beasts to get away with the goods, but he never seems concerned that he might be doing anything wrong. Hooper considers the eggs he takes to be in their natural state.
By mixing his own labor (along with fifty-five cans of beans, ginger, nine prunes, three figs, parsley, cinnamon, and a clove) with the eggs he has found, Hooper has made them his to enjoy. But when exactly did the eggs become his? When he ate them? When he cooked them? When he raced away with them on his Jill-ikka-Jast? Or when he first picked them up? Locke has an answer, although he speaks of acorns and apples, but his principle applies as well to eggs. “[I]t is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so the
y became his private right.”4 So it seems that as soon as Peter picked up one of those eggs, it became his property.
But Mayzie seems still to have some kind of claim on the egg before Horton comes along and mixes his labor with it. To sort this out, we may first need to look at some important limitations that Locke places on his labor-mixing theory of property.
How much may I have of this wonderful stuff?
As long as you leave just as good, and enough.
One of these limits Locke mentions is that no one may take more than his fair share. He explains, “[F]or this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.”5 Peter T. Hooper cannot lay claim to every single egg in the world, even if he were to go to all the trouble to collect them. He must leave enough for others. And he cannot simply take the world’s sweetest Kweet eggs and leave only the eggs of the Twiddler Owl (which taste “sort of like dust from inside a bass fiddle” [Scrambled]), for everyone else. He must leave not only enough eggs for everyone else but also enough eggs that are as good as what he takes for himself.
The Lorax makes this point quite clear. When the Once-ler chops down one lone Truffula Tree, the Lorax simply wants to know what’s going to be done with it, but when the Once-ler starts chopping down four trees at a time, the Lorax explains that the Once-ler’s rate of labor mixing has gotten out of hand.
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