Social Evolution Forum
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Peter A. Corning. The Fair Society, The Right to Life, and the Public Trust

In my 2011 book, The Fair Society: The Science of Human Nature and the Pursuit of Social Justice (University of Chicago Press), I proposed a new vision of social justice based on three biologically-grounded fairness principles that must be combined and balanced in order to achieve a society that is fair to everyone. These fairness principles are equality, equity, and reciprocity. Among other things, the book calls for a new “biosocial contract” that includes a “basic needs guarantee” as an equal right and a societal responsibility, along with full recognition for personal “merit” (equity) and a strong obligation for reciprocity to balance the scales and repay the benefits that we receive.

The justification for a basic needs guarantee is based on four important social realities: (1) our basic needs are increasingly well-understood and documented (14 categories of needs were identified in the book); (2) our individual needs vary somewhat, but in general they are equally shared; (3) we are (almost all of us) dependent upon many others, and our economy as a whole, for the satisfaction of these needs; and (4) significant harm will result if any of these needs are not satisfied. An organized human society is, first and foremost, a “collective survival enterprise.”

The idea of providing a “basic needs guarantee” may seem radically new – a utopian moral aspiration, or perhaps warmed-over Marxism. However, it is important to stress that a basic needs guarantee is not about providing an equal share of the wealth, nor does it involve an open-ended social commitment. It involves a specific and ultimately limited set of criteria for social action, with measurable indicators for assessing the outcomes.

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The argument for a basic needs guarantee also accords with the “right to life” principle. The philosopher John Locke in his Two Treatises of Government (1690) was the first “modern” theorist to assert the idea of self-evident natural rights, including “life, liberty and estate [i.e., property].”[1] However, our rights are not absolute, according to Locke. They must not interfere with the rights of others. Furthermore, Locke insisted, governments exist to protect these rights.

In the same vein, the pioneer economist Adam Smith (famed for his classic book The Wealth of Nations), in an earlier work, The Theory of Moral Sentiments, stressed the importance of doing justice, which he defined as not causing “injury” to others. “There can be no proper motive for hurting our neighbor.”[2] The prominent utilitarian philosopher Jeremy Bentham also qualified his signature “pain-pleasure” ethical principle by conceding that our freedom must be constrained by the rule that it “affects the interests of no other persons” besides the actor.[3] Modern-day libertarians, likewise, generally acknowledge that the exercise of our rights must not cause “harm” to anyone else (for example, see Robert Nozick’s much-cited 1974 book, Anarchy, State and Utopia).

The first public, political assertion of a “right to life” was, of course, in the American Declaration of Independence (1776), and it has been invoked in many other contexts since, including the United Nations’ Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1950), the U.N.’s International Covenant on Civil and Political Rights (1966) and the Convention on the Rights of the Child (1989), as well as the Basic Law for the Federal Republic of Germany (1949), the Indian Constitution (1950), and the Catholic Church’s Charter of the Rights of the Family (1983). The right to life is also frequently asserted in public debates over such issues as capital punishment, euthanasia, and (in the U.S.) anti-abortion advocacy.[4]

But if the right to life is widely-recognized as a “self-evident” moral principle, it certainly does not end at birth; it extends throughout our lives. Moreover, it is a prerequisite for other rights, including liberty and “the pursuit of happiness” (or property rights, for that matter). The right to life necessarily implies the right to the “means” for life. Otherwise this right is meaningless. And because (to repeat) almost all of us are dependent upon the “collective survival enterprise” to obtain the means for our personal needs, the right to life therefore imposes on society and its members a life-long mutual obligation to provide for one another’s basic needs. This is the fundamental purpose of the “biosocial contract.”

This collective societal obligation, I believe, has its legal foundation in the public trust doctrine. The concept of a public trust can be traced back to Roman times. The Jus publicum (public law) referred to a category of Roman laws that pertained to, among other things, resources that were “by the law of nature” the common property of all mankind, including the air, water, the seas and sea shores (according to the Institutes of Justinian). In Medieval times, the idea of common ownership also came to be associated with such things as common pastures for grazing domestic animals. The view that government has a responsibility and a role in protecting the commons is also embedded in English and American common law.

In modern times, the public trust doctrine has had many different applications in different countries. In the U.S., a number of states have utilized it to protect various resources. The state of Washington, for instance, has mandated that all the fresh waters of the state are owned by the state as a common resource, and conditional “water rights” permits are needed to make use of them.

Both federal and state courts in the U.S. have also recognized the public trust in various rulings. Especially significant are the several landmark U.S. Supreme Court cases over the years in which the Court supported the doctrine. In Georgia vs. Tennessee Copper Company (1907), for instance, the Court held that states have an interest beyond that of any individual in “all the earth and air” within its domain. In Illinois Central Railroad vs. Illinois, the Court ruled that a state legislature cannot ignore its obligation to defend common public property. And in Geer vs. Connecticut, the Court concluded that a state legislature has a duty to enact laws to protect the public trust.[5] Indeed, between 1997 and May of 2008 the public trust doctrine was used in a total of 284 judicial decisions, including 34 federal cases and 250 in the states.[6]

There have also been many legislative applications of the public trust doctrine. In the U.S., important examples include the landmark National Environmental Policy Act (NEPA) in 1970 and the many federal laws that, over the years, have established our 59 national parks encompassing more than 51 million acres. Currently the public trust doctrine is being used as a legal tool in advancing the cause of climate change legislation, as well as other environmental policy initiatives in the U.S. and elsewhere. For instance, in a bellwether case in 2013, the Pennsylvania Supreme Court found elements of that state’s hydraulic fracturing legislation to be unconstitutional. Another important application of the doctrine can be found in the so-called sovereign trust funds (with Norway’s fund as a premier example), which invest discretionary state revenues, such as royalties from the sale of crude oil, in ways that are intended to benefit the common good.

However, there is a deeper and broader interpretation of the public trust, championed by a number of legal scholars and some courts, which offers an opportunity for expanding its scope and application. The basic argument is that the public trust is a fundamental attribute of sovereignty in a democratic society, a “constitutive principle.” It represents an inherent power to serve the public interest, and it has supremacy over contrary laws or individual property rights. As the University of Oregon law professor and public trust specialist Mary Christina Wood observes in her 2014 book, Nature’s Trust, “characterizing the trust as an attribute of sovereignty bores down to legal bedrock.”[7]

In this interpretation, the public trust power and the ability to act in the public interest does not need to be backed by specific constitutional language or statutes. Indeed, it no more needs to be spelled out than the police power, which is assumed to be a necessary element of sovereignty. The common good has a similar character as a basic responsibility of democratic government. Prof. Wood notes that, when government derives its power from the people, it necessarily imposes a fiduciary duty on the government to act as a trustee for the people.[8] Australian justice Paul Finn refers to it as the “inexorable logic of popular sovereignty.”[9] Even the patron saint of private property rights, John Locke, observed that the “Fundamental, Sacred, and unalterable Law of Self-Preservation” forms the very basis of society and creates a responsibility for government to protect this right.[10]

A number of legal scholars also contend that this responsibility is not limited to the needs of the present generation. As Prof. Wood puts it: “The core purpose of the public trust lies in protecting the citizens’ unyielding interest in their own survival (and that of their children).”[11] Similarly, Peter Brown in Restoring the Public Trust (1994) asserts that “the trustees’ fundamental duty is to preserve humanity.”[12] Prof. John Davidson points out that the “welfare” of “posterity” was a core concern of America’s founding fathers and that their intention when they wrote the Constitution was to create a social contract for the long term.[13]

It is, therefore, both logical and appropriate to assert that the public trust also encompasses the conditions required for satisfying our basic needs. Undergirding and supporting the collective survival enterprise is a “fiduciary responsibility” on the part of any democratic government to provide for the survival and well being of its citizens. Accordingly, the “right to life” must be backed by a “basic needs guarantee.”

What would this look like in practice? In fact, it would not look very different from an advanced society like Norway, with full employment at decent wages, a relatively flat distribution of income, an array of supportive social services, extensive investment in infrastructure, a strong commitment to democracy, a government that is sensitive to the common good, high social trust, and more. Unfortunately, many societies, including the U.S., fall short in various ways, but there are many well-tested and practicable reform measures that are possible (see The Fair Society, Chapter 8). So, a “basic needs guarantee” is an attainable goal, with the obvious caveat that climate change and other unknown future conditions could threaten the sustainability of this commitment.

Plato, in his great dialogue “concerning justice” (the Republic), defined social justice as “giving every man his due.” In the Fair Society model, this objective has three specific aspects: equality, equity, and reciprocity. But first among these is equality with respect to the right to life and a basic needs guarantee, including the reproduction and nurturing of the next generation.[14] This, as the saying goes, is our “prime directive.” In an age when millions of American children go to bed hungry, or go to school hungry, and when poor homeowners in Detroit have had their water supplies cut off, this is not a hypothetical problem. Advancing the public trust will be the greatest political challenge for democracy, and for all of humankind, in this century.

Peter A. Corning is the Director of the Institute for the Study of Complex Systems.

Endnotes

[1] John l. Locke (1970/1690). Two Treatises of Government. Ed., P. Laslett. Cambridge, MA: Harvard University Press.

[2]   http://www.adamsmith.org/smith/tms/tms-p2-s2-c2.htm

[3] http://www.utm.edu/research/iep/b/bentham.htm

[4]   It should also be noted that societies have long qualified this right, or hedged it in various ways, including the killing associated with war (or Jihad), capital punishment, euthanasia, killing in self-defense, etc.

[5] Cited in Mary Christina Wood (2014). Nature’s Trust: Environmental Law for a New Ecological Age. New York: Cambridge University Press, pp. 125-127.

[6]   David C. Slade, “The Public trust Doctrine I n Motion, State and Federal Cases 1997-2008.” International Submerged Lands Conference, The Evolving Public Trust Doctrine (September 24, 2009). www.gulfalliancetraining.com/…/Public%20Trust%20Doctrine%20In%2

[7]   Wood, op. cit., p. 132.

[8]   Ibid., p. 128.

[9]   Quoted in Wood, op cit., p. 128.

[10]   Locke, op. cit.

[11] Wood, op. cit., p. 126.

[12]   Peter G. Brown (1994). Restoring the Public Trust: A Fresh Vision for Progressive Government in America. Boston: Beacon Press, p. 78.

[13]   Cited in Wood, op. cit., pp. 129-130.

[14]   From a biological perspective, the purpose of life is to make more life. Reproduction is a basic need – a primary function in all living organisms. Of course, reproduction is also a strong human desire. As a practical matter, moreover, reproduction is essential to the continuity of society over time. If reproducing the next generation is ultimately a societal objective, the question then becomes, who shall contribute? There are only a finite number of options: everyone ad libitum, an equal number for everyone, a lottery, a “means test,” genetic and physiological qualities, “good behavior,” some form of social competition, or some other social qualification. In any case, producing the next generation is a basic need and a prime responsibility of the public trust although currently overpopulation is a global problem.

11 Comments

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11 Comments

  1. Looks good to me! I look forward to more on this.

  2. Ross David H says:

    Looks good to me, too, but I think any comparison with Norway will beg the questions:
    1) does the much larger size of the U.S. make it harder to achieve the levels of trust necessary for the “Nordic model” to work? Or would it need to be instituted at the state level in the U.S. in order to get a more Norway-sized grouping?
    2) does the level of immigration (i.e. people from a different cultural background) impact the viability of this? There are cases (e.g. Turkey right now with Syrian refugees) where the number of incoming immigrants is too great for the receiving society to treat them well. Do we know what the upper limit is?
    3) what is the mechanism used to deal with the least cooperative 1%? Much of the resistance to such a scheme (in the U.S. anyway) is based on the fear that more and more people with “freeload” over time. This could conceivably be more of a problem in a society with weaker bonds of culture (i.e. less influenced by the disapproval of others if it’s not backed up by governmental force).

    Do we have any empirical evidence to address those three points?

    • These are important and complex questions. They deserve extended answers, and more expertise than I possess. But here are a few brief responses.

      (1) Norway’s “model” encompasses an array of programs and policies that will work just fine in other rich society’s like our own, if we apply Ronald Reagan’s “trust but verify” mantra. They don’t depend on trust. Indeed, even the U.S. does some things well. Overall administrative costs for Social Security are 3-5%, compared to 25-30 percent (including advertising and profits) for private health insurers.

      (2) Immigration — It all depends. When this country was growing rapidly a century ago, we welcomed immigrants by the millions (including perhaps your ancestors), and we were able to absorb them without great stress. But when a country is growing slowly and has limited employment opportunities, immigration become more closely aligned with altruism. This can quickly become a burden and a source of social conflict. The Norwegians, too, face this problem going forward, but they at least are thinking about it constructively. We prefer to bury our heads in the sand.

      (3) Ahh, the 1%. Of course, there will always be a 1 percent. The question is, how are the other 99 percent doing? Mahatma Gandhi summed up the problem: “The rich need to live more simply so that the poor can simply live.” Our own history is instructive. In the 1950s (some of us can remember), our income distribution was the most egalitarian in the industrialized world, and CEO salaries at Fortune 500 companies averaged 20-40 times those of their workers, versus 300-plus times today. The top marginal tax rate was 91 percent. Social trust was also high. Can we regain some of that lost luster? Read my book. (Ditto about the overrated problem of “free-loading.” “Reciprocity” is the all-important third fairness principle in the Fair Society paradigm. Again, read the book!)

      • Oops, In the Ghandi quote, make that “Gandhi” (!) and change “merely live” to “simply live.”

      • Peter Turchin says:

        On (2) Immigration: actually, massive immigration inflows during the nineteenth century depressed living standards of the common Americans, including biological quality of life. Heights declined by 5 cm and life expectancy (for 10 years old) declined by 8 years. Immigration has also contributed to the current slump of real wages for American workers, although it is not the most important contributing factor. For details, see here:

        link to socialevolutionforum.com

        • Good points. However, immigration per se was not responsible for these biological impacts. Rather it was unfettered, unregulated, exploitative “robber baron” capitalism and “handmaiden” politics. And for some of those immigrants, like the irish, poverty in America was better than starving in Ireland. Nowadays, of course, outsourcing and the underground economy of exploited illegal immigrants has played a significant role. In Walmart’s case, our delusional minimum wage has been very helpful. Walmart pays more where it is required to do so. In a book-length comparative study of welfare capitalism, Esping-Andersen concludes that, in all cases, it’s the politics that have been decisive in determining the outcomes.

          • Senator Bernie Sanders is circulating the following item: “My friends at Social Security Works commissioned a poll, which shows that 79% of likely voters — Democrats, Republicans, and Independents — favor increasing Social Security benefits and paying for it by asking millionaires and billionaires to pay their fair share.” it’s not about trust! It’s about politics.

          • Peter Turchin says:

            I agree about the importance of social norms (what I called ‘culture’ in my analysis of why real wages stopped growing). But the oversupply of labor works together with social norms. If there is no labor oversupply, capitalists are forced to raise wages, because they compete for scarce labor.

            Social norms can mitigate the pressure on wages from labor oversupply, as we see in Denmark, for example.

  3. O.Voron says:

    Ross David H, these are the exact questions I have myself.
    It’s so hard to believe that Nordic model will ever work in the U.S.

    Moreover, there are signs that it is unraveling slowly but surely, I agree with Turchin in that.

    • Peter Turchin says:

      During the 1950s the USA was essentially following the Nordic model. The trend towards increasingly more equitable society was reversed during the late 1970s. But there are no laws of nature (or society) that forbid us to have another trend reversal, and I hope Peter Corning’s book will contribute to it.