Distributive justice (equity)
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Definition
And distributive justice, the justice of an arbitrator; that is to say, the act of defining what is just. Wherein, being trusted by them that make him arbitrator, if he perform his trust, he is said to distribute to every man his own: and this is indeed just distribution, and may be called, though improperly, distributive justice, but more properly equity, which also is a law of nature, as shall be shown in due place.
Hobbes, Lev XV 16
Description and arguments
The requirements of equity: it is a law that we do not take more than our fair share, and to deal fairly when distributing things.
22. On this law dependeth another: that at the entrance into conditions of peace, no man require to reserve to himself any right which he is not content should he reserved to every one of the rest. As it is necessary for all men that seek peace to lay down certain rights of nature; that is to say, not to have liberty to do all they list, so is it necessary for man's life to retain some: as right to govern their own bodies; enjoy air, water, motion, ways to go from place to place; and all things else without which a man cannot live, or not live well. If in this case, at the making of peace, men require for themselves that which they would not have to be granted to others, they do contrary to the precedent law that commandeth the acknowledgement of natural equality, and therefore also against the law of nature. The observers of this law are those we call modest, and the breakers arrogant men. The Greeks call the violation of this law pleonexia; that is, a desire of more than their share.
23. Also, if a man he trusted to judge between man and man, it is a precept of the law of nature that he deal equally between them. For without that, the controversies of men cannot be determined but by war. He therefore that is partial in judgement, doth what in him lies to deter men from the use of judges and arbitrators, and consequently, against the fundamental law of nature, is the cause of war.
24. The observance of this law, from the equal distribution to each man of that which in reason belonged to him, is called equity, and (as I have said before) distributive justice: the violation, acception of persons, prosopolepsia.
25. And from this followeth another law: that such things as cannot he divided be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right. For otherwise the distribution is unequal, and contrary to equity.
26. But some things there be that can neither be divided nor enjoyed in common. Then, the law of nature which prescribeth equity requireth: that the entire right, or else (making the use alternate) the first possession, be determined by lot. For equal distribution is of the law of nature; and other means of equal distribution cannot be imagined.
27. Of lots there be two sorts, arbitrary and natural. Arbitrary is that which is agreed on by the competitors; natural is either primogeniture (which the Greek calls kleronomia, which signifies, given by lot), or first seizure.
28. And therefore those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.
Hobbes, Lev XV 22-28
Argument
As justice consists of fair distribution of property, there is no property without a State to guarantee this justice (?).
...Seeing therefore the introduction of propriety [property] is an effect of Commonwealth, which can do nothing but by the person that represents it, it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power. And this they well knew of old, who called that Nomos (that is to say, distribution), which we call law; and defined justice by distributing to every man his own.
Hobbes, Lev XXIV 5
Proposition
Even the sovereign may be mistaken about a judgment concerning equity.
But because there is no judge subordinate, nor sovereign, but may err in a judgement equity; if afterward in another like case he find it more consonant to equity to give a contrary sentence, he is obliged to do it. No man's error becomes his own law, nor obliges him to persist in it. Neither, for the same reason, becomes it a law to other judges, though sworn to follow it. For though a wrong sentence given by authority of the sovereign, if he know and allow it, in such laws as are mutable, be a constitution of a new law in cases in which every little circumstance is the same; yet in laws immutable, such as are the laws of nature, they are no laws to the same or other judges in the like cases for ever after. Princes succeed one another; and one judge passeth, another cometh; nay, heaven and earth shall pass; but not one tittle of the law of nature shall pass; for it is the eternal law of God. …
Hobbes, Lev XXVI 24
