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KEEPING JUSTICE (LARGELY) OUT OF CHARITY: PLURALISM AND THE DIVISION OF LABOR BETWEEN CHARITABLE ORGANIZATIONS AND THE STATE

Published online by Cambridge University Press:  26 January 2021

Daniel Halliday
Affiliation:
University of Melbourne, Melbourne, Australia
Matthew Harding
Affiliation:
University of Melbourne, Melbourne, Australia

Abstract

Justice can be pursued by the state, or through voluntary charity. This paper seeks to contribute to the debate about the appropriate division of labor between government and charitable agencies by developing a positive account of the charity sector's moral foundations. The account given here is grounded in a legal conception of charity, as a set of subsidies and privileges designed to cultivate a wide variety of activities aimed at enhancing civic virtue and autonomy. Among other things, this implies that a charity sector oriented largely around the pursuit of justice will come at a moral cost to a liberal society, at least when the state is in a position to take the greater share of the responsibility. So, a positive account of charity provides at least a pro tanto reason for preferring a division of labor in which the state takes a greater share of the responsibility for pursuing justice. As well as developing and defending this conception in its own right, we apply it in offering some criticisms and enhancements of existing views about the division of labor.

Type
Research Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

Our sincere thanks to Jill McFadyean for her invaluable assistance. Thanks are due to audiences at the Julius Stone Institute, University of Sydney Law School, and an applied ethics seminar at University of Melbourne. We also thank Peter Singer for comments on an earlier draft, and two anonymous referees for Legal Theory.

References

1. These figures represent survival rates at five years post-diagnosis. Up-to-date and detailed figures can be found at Cancer Research UK's website, https://www.cancerresearchuk.org/health-professional/cancer-statistics/survival.

2. A quick internet search will take the reader to plenty of news coverage, in spite of the campaign having closed some years ago. Particularly detailed is Advertising Health, Massive Debate over ‘I Wish I Had Breast Cancer’ Campaign (Feb. 6, 2014), https://advertising-health.com/massive-debate-wish-breast-cancer-campaign/.

3. In using this terminology we follow Cordelli, Chiara, The Institutional Division of Labor and the Egalitarian Obligations of Nonprofits, 20 J. Pol. Phil. 131 (2012)Google Scholar.

4. Here we have in mind (especially) the “effective altruism” movement, at least as it is represented in philosophical work. This project builds on the earlier work of Singer, Peter, Famine, Affluence and Morality, 1 Phil. & Pub. Affs. 229 (1972)Google Scholar. A contemporary philosophical proponent is William MacAskill, Doing Good Better: Effective Altruism and a Radical New Way to Make a Difference (2015).

5. Effective altruists have been accused of naïveté about the effectiveness of charitable organizations at addressing goals such as global poverty relief. Wenar, Leif, Poverty Is No Pond: Challenges for the Affluent, in Giving Well: The Ethics of Philanthropy 104 (Illingworth, Patricia, Pogge, Thomas & Wenar, Leif eds., 2011)Google Scholar. Other critics are skeptical about the methodology of focusing on what individual agents can do in isolation from efficacious macro-level forces. Schmidtz, David, Islands in a Sea of Obligation: Limits of the Duty to Rescue, 19 Law & Phil. 683 (2000)Google Scholar. Others worry that such a focus ends up being an implicit apology for the status quo injustices that have created the problems that the movement aims to solve. Amia Srinivasan, Stop the Robot Apocalypse, London Rev. Books, Sept. 24, 2015, http://www.lrb.co.uk/v37/n18/amia-srinivasan/stop-the-robot-apocalypse. Since these objections neither affirm nor deny any account of the foundations of charity, we do not take a stand on them here. For a general overview, though, see Gabriel, Jason, Effective Altruism and Its Critics, 34 J. Applied Phil. 457 (2017)CrossRefGoogle Scholar.

6. An outstanding conspectus of such literature may be found in Steinberg, Richard, Economic Theories of Nonprofit Organizations, in The Nonprofit Sector: A Research Handbook 117 (Powell, Walter W. & Steinberg, Richard eds., 2d ed. 2006)Google Scholar, and Steinberg, Richard & Galle, Brian, A Law and Economics Perspective on Nonprofit Organizations, in Research Handbook on Not-for-Profit Law 16 (Harding, Matthew ed., 2018)Google Scholar.

7. See, e.g., Weisbrod, Burton, Toward a Theory of the Voluntary Nonprofit Sector in a Three-Sector Economy, in Altruism, Morality, and Economic Theory 171 (Phelps, Edmund S. ed., 1975)Google Scholar.

8. See, e.g., Hansmann, Henry, The Role of Nonprofit Enterprise, 89 Yale L.J. 835 (1980)CrossRefGoogle Scholar.

9. For two recent examples: Matthew Harding, Charity Law and the Liberal State (2014); Atkinson, Rob, A Primer on the Neo-Classical Republican Theory of the Nonprofit Sector (and the Other Three Sectors Too), in Research Handbook on Not-for-Profit Law 48 (Harding, Matthew ed., 2018)Google Scholar.

10. Robert Reich, Just Giving: Why Philanthropy Is Failing Democracy and How It Can Do Better (2018); for the bulk of Reich's discussion of pluralism see 128–133; 153–155.

11. See id. at 12 on the difference between political and nonpolitical approaches in philosophy. A similar point is made by Saunders-Hastings, Emma, Plutocratic Philanthropy, 18 J. Pol. 149 (2018)Google Scholar.

12. Reich makes two key arguments that we do not seek to discuss. These include the idea that charitable foundations decentralize decision-making in ways that provide an alternative to “government orthodoxy” in the provision of goods (Reich, supra note 10, at 130), and that charities benefit from a long time horizon not shared by governments of the democratic sort whose policies are constrained by a need to get reelected (id. at 152). Reich's arguments rely on a substantive view about the limits of government agency. While we find his position plausible and have learned from it in developing our own, we note that it differs in that his case for a charity sector does not draw wholly on noncomparative considerations about what charitable organizations are for, whereas ours does.

13. We think that this approximates the idea of distributive justice that emerged in the nineteenth century, where justice is some set of requirements associated with distributing scarce resources, and where disagreement is largely about the precise details as to the reasons why, and as to whether the requirements of justice are any stronger. See Samuel Fleischacker, A Short History of Distributive Justice (2004).

14. We leave it open whether such border-crossing requirements differ in some respects from the requirements of traditional domestic justice. On this, compare Nagel, Thomas, The Problem of Global Justice, 33 Phil. & Pub. Affs. 113 (2005)Google Scholar with Cohen, Joshua & Sabel, Charles, Extra Republicam Nulla Justitia?, 34 Phil. & Publ. Affs. 147 (2006)Google Scholar.

15. Indeed, in some circumstances, this may be the surest way to achieve justice. See Gardner, John, The Virtue of Charity and Its Foils, in Foundations of Charity 1, 2–3 (Mitchell, Charles & Moody, Susan R. eds., 2000)Google Scholar.

16. John Rawls, A Theory of Justice (rev. ed. 1999), at ch. 8.

17. Kymlicka develops this point at considerable length. His main claim is that secularizing the theological contention that charity improves one's character would be to turn moral foundations into prudential foundations. Kymlicka, Will, Altruism in Philosophical and Ethical Traditions: Two Views, in Between State and Market: Essays on Charities Law and Policies in Canada 87, 112–113 (Philips, Jim, Chapman, Bruce & Stevens, David eds., 2001)Google Scholar. This claim might be resisted, we think, if engaging in charity is about stimulating the virtues (see main text below).

18. Here we follow Kymlicka, id. at 113. For a longer discussion of the history of the justice/charity distinction, see Fleischacker, supra note 13.

19. For a helpful summary of the legal requirements in a range of countries: Charity Law: Jurisdictional Comparisons (Anne-Marie Piper ed., 2012). And for a more philosophical look at the concept of “public benefit” in charity law: Charity Law: Exploring the Concept of Public Benefit (Daniel Halliday & Matthew Harding eds., 2021).

20. The value of these aspects of the charity sector can also ground opposition to public-private partnerships between state agencies and charitable organizations. See Cordelli, Chiara, How Privatization Threatens the Private, 16 Critical Rev. Int'l Soc. & Pol. Phil. 65 (2013)Google Scholar.

21. Not all modes of social interaction bound up with voluntary charity are valuable. See Simone Chambers & Jeffry Kopstein, Bad Civil Society, 29 Pol. Theory 837 (2001). Our arguments apply only to valuable modes of social interaction.

22. This assumes that justice is to be done. In some cases, an agent properly acts from virtues other than justice precisely because she has correctly determined that, all things considered, justice is not to be done. The judge who exercises mercy is an example. On mercy, see Tasioulas, John, Mercy, 103 Proc. Aristotelian Soc'y 101 (2003)Google Scholar.

23. See for example the remark that “the distinctive role of conceptions of justice is to specify basic rights and duties and to determine the appropriate distributive shares.” Rawls, supra note 16, at 6.

24. The example of the independent school with a specialist music program was discussed by the Upper Tribunal for England and Wales in the case of R (Independent Schools Council) v Charity Commission for England and Wales [2012] 2 WLR 100. There, the Tribunal stated that as a matter of English law a charity cannot exclude the poor, and then sought to work out the implications of this rule for independent schools that charge high fees. The Tribunal considered that a school with a specialist music program might be justified in providing less bursary assistance to poor children than a school without such a program. Id. at 258.

25. We thank an anonymous reviewer for helping us to appreciate the importance of this point.

26. See Morris, Debra, Paying the Piper: The “Contract Culture” as Dependency Culture for Charities?, in The Voluntary Sector, the State and the Law 123 (Dunn, Alison ed., 2000)Google Scholar; Morgan, Gareth et al. , The Public Benefit Requirement for Charities in England and Wales: A Qualitative Study of Its Impact, 15 Charity L. & Prac. Rev. 107 (2013)Google Scholar.

27. We borrow this observation from Thomas Christiano, who makes a similar point about political campaigning in Money in Politics, in The Oxford Handbook of Political Philosophy 241 (David Estlund ed., 2012).

28. The possibility of simultaneous exercise is associated with an idea sometimes called the “unity of the virtues.” We can't engage fully with the debate about this idea here, except to point to influential discussions laying out reasons to reject it. See Wolf, Susan, Moral Psychology and the Unity of the Virtues, 20 Ratio 145 (2007)CrossRefGoogle Scholar; Sreenivasan, Gopal, Disunity of Virtue, 13 J. Ethics 195 (2009)CrossRefGoogle Scholar.

29. This point can be reinforced by noting that taxation need not be a very intrusive form of coercion. See Waldron, Jeremy, Welfare and the Images of Charity, 36 Phil. Q. 463 (1986)CrossRefGoogle Scholar. Indeed, we find it implausible that the intuitive idea of authoritarianism has much to do with whether taxes are especially high. Instead, authoritarianism is more a matter of an absence of rule of law, poor separation of powers, draconian punishments, and suppression of political liberties. While these factors are all about ways in which states can coerce citizens, they are not specifically related to the sort of coercion associated with fiscal policy (including charity law).

30. John Rawls, Political Liberalism (1993), at 48–54.

31. Rawls, supra note 16, at 311.

32. Rawls argues that a sense of justice will become more stable when the “principles [of justice] are embodied in the basic structure of society.” Id. at 119. The pursuit of justice through institutional and legal forms helps reinforce the acquisition of a sense of justice, partly because of the assurance that each citizen is given as to the impact of these principles on other people's lives. For more on the role of institutions in promoting a shared sense (or “ethos”) of justice among citizens, see Joshua Cohen, Taking People as They Are?, 30 Phil. & Pub. Affs. (2001). Compare G.A. Cohen, Rescuing Justice and Equality (2008), at 377–381.

33. Cohen, Joshua, Money, Politics, and Political Equality, in Fact and Value: Essays in Metaphysics and Ethics for Judith Jarvis Thomson 47 (Byrne, Alex, Stalnaker, Robert & Wedgwood, Ralph eds., 2001)Google Scholar.

34. Fleischer, Miranda Perry, Libertarianism and the Charitable Tax Subsidies, 56 B.C. L. Rev. 1345, 1349–1352 (2015)Google Scholar.

35. Gardner, supra note 15.

36. Id.

37. Joseph Raz, The Morality of Freedom (1986).

38. Michael J. Sandel, Liberalism and the Limits of Justice (2d ed. 1998), at ch. 1.

39. If delivering justice through the charity sector generated better outcomes than pursuing other goals through other virtues, then matters would be different. But even then, a diminution in the modes of social interaction pursued via the charity sector would appropriately be counted as a moral loss.

40. Kymlicka, supra note 17, at 94.

41. Though it is notable that libertarian views, so long as they rely mainly on an opposition to coercion as an infringement of property rights, may struggle to avoid rejecting all state coercion and collapse into anarchism. On this, see Fried, Barbara, Does Nozick Have a Theory of Property Rights?, in The Cambridge Companion to Nozick's Anarchy, State and Utopia 230 (Bader, Ralf M. & Meadowcroft, John eds., 2011)Google Scholar.

42. This point is made more fully by Cordelli, supra note 3, at 136.

43. Clement Attlee, The Social Worker (1920).

44. Munoz-Dardé, Véronique & Martin, M.G.F., Beggar Your Neighbour (Or Why You Do Want to Pay Your Taxes), in Taxation: Philosophical Perspectives 124, 127 (O'Neill, Martin & Orr, Shepley eds., 2018)Google Scholar.

45. In this way, the classic objection falls squarely within what has more recently become known as “relational egalitarianism” in political philosophy. This view involves a conception of justice on which equality is construed in terms of the character of interpersonal (or intergroup) relationships and interactions, not fundamentally in terms of equal distributions of material things. For a summary see Anderson, Elizabeth, Equality, in The Oxford Handbook of Political Philosophy 40 (Estlund, David ed., 2012)Google Scholar.

46. Munoz-Dardé & Martin, supra note 44, at 134.

47. Although we will not push this point, there is a case for regarding coercive taxation as rather low in terms of the psychological (as opposed to sheer financial) burden it imposes. This is because, for many taxpayers, the act is not of surrendering property or wealth but rather what Jeremy Waldron (supra note 29) has described as “forbearance,” as taxes are simply withheld prior to the receipt of income.

48. This may be because the whole exercise of competing for grants is about presenting oneself as especially meritorious. As such, receiving a grant signals academic merit, at least relative to the criteria of the awarding organization. In addition, research grants are pursued in response to an explicit request for applications from donor organizations. So, there are at least two apparent disanalogies with street begging. This might further guide efforts to distinguish conditions under which charitable donation involves representations of inferiority in the recipient from cases where it is designed so as not to do so.

49. Sanghera, Balihar & Bradley, Kate, Social Justice, Liberalism, and Philanthropy: The Tensions and Limitations of British Foundations, in New Philanthropy and Social Justice 175 (Morvaridi, Behrooz ed., 2015)Google Scholar.

50. Here we draw on writings such as id.; Reich, supra note 10, at ch. 4; Saunders-Hastings, supra note 11.

51. McGovern v Attorney-General [1982] 1 Ch 321 (Slade J.). See also Bowman v Secular Society Limited [1917] AC 406, 442 (Lord Parker).

52. For an excellent example of the difficulties, see the decision of the Supreme Court of New Zealand in In re Greenpeace of New Zealand Incorporated [2015] I NZLR 169, and the subsequent decision of Simon France J. of the High Court of New Zealand in In re Family First New Zealand [2018] NZHC 2273, overturned on appeal by the New Zealand Court of Appeal in Family First New Zealand v Attorney-General [2020] NZCA 366.

53. See for example Reich's anecdotal evidence concerning the Open Society Foundation, set up by George Soros (Reich, supra note 10, at 148).

54. Here we are converging slightly with some of the efforts to push back against some views about merely evaluating charity according to how much good it can do. See supra note 5.

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