Egalitarian Liberalism,

Distributive Justice and the

New Constitutionalism
David Bilchitz

Abstract: These modern constitutions that have been adopted largely in the
Global South enshrine a set of divergent values and rights that embrace both
political philosophical concerns relating to liberty as well as distributive equality. This article seeks to grapple with the approach to distributive justice that
can best give expression to the multiple normative commitments of these constitutions as well as key institutional features thereof. I argue for these societies
to adopt what I term a two-tier theory of distributive justice: these theories
require a set pattern or threshold to be achieved in a certain domain but also
allow for a tolerable variation in resource distribution in another domain. I
seek 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 argue
that a two-tier structure of a theory of distributive justice can help explain and
reconcile key features of these modern constitutions. In particular, I shall seek
to show the manner in which such theories conform to understandings of the
role of a constitution, and the importance of preserving space for democratic
decision-making. At the same time, two-tier theories assist in delineating the
appropriate role constitutional courts should play in addressing the distribution
of economic resources in society. These theories also have important implications 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 so
manages 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: in
Eastern Europe, in Latin America and Africa. The original ground-breaking
constitutions of France and the United States included a list of fundamental
rights 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)

48

David Bilchitz

(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 of
entitlements governing the distribution of socio-economic goods in society.
These constitutions thus set themselves up not only as a shield against the
exercise of state power but also contain core normative commitments that state
institutions have obligations to address questions relating to the distribution
of economic resources and opportunities (Bilchitz 2013: 50).
These twin goals of new constitutions suggest that they wish to embrace
both the set of concerns traditionally associated in political philosophy with
the advocates of liberty as well as those embraced by advocates of distributive equality.1 Many questions, however, arise in this regard: are the projects
of protecting civil rights and a concern for a just social resource distribution
compatible? Are there inevitable trade-offs between the two? The normative
goals of the new constitutions suggest that both are realisable together or, at
least, a fair balance can be achieved between these concerns. Yet, is this true?
The constitutionalism that has recently emerged has not answered many of
these burning questions. Instead, constitutions have enshrined divergent values
and rights without providing a normative guide as to how they are to be reconciled. Inevitably, the legislature and executive must adopt policies that seek to
realise both sets of values. The judicial branch which, in these modern constitutions, is usually given the power of judicial review over legislation and policies emanating from the other branches, is required to interpret these values
and rights in a manner that renders them congruent and meaningful. This article seeks to grapple with the political philosophical approach to distributive
justice that can best give expression to the multiple normative commitments
of these constitutions as well as key institutional features thereof.
The first part of the article commences by arguing that distributive justice
theories may have differing structures. I focus on outlining what I term twotier theories of distributive justice which I contend offer the best possibility of
reconciling liberty and equality. At the level of structure, however, already a
number of concerns and difficulties with such theories can be anticipated
including achieving a determinate understanding of the first tier, and ensuring
that the different tiers remain distinct. The second part of the article than
attempts to show in what way the theories of two famous egalitarian liberals
John Rawls and Ronald Dworkin exhibit the two-tier structure. I also investigate the manner in which the problems relating to that structure affect their
respective 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 modern
democratic constitutions of the Global South. In particular, I shall seek to
show the manner in which such theories conform to understandings of the
role of a constitution, and the importance of preserving space for democratic
decision-making. At the same time, two-tier theories assist in delineating the
appropriate role constitutional courts should play in addressing the distribution

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

49

of economic resources in society. These theories also have important implications for the role of the state as involved but not unconstrained and preserve a
limited role for market-based distributions. Having considered the relationship
between the two-tier structure and modern constitutions, I conclude by considering the manner in which such a structure gives effect to a particular conception of equality as well as liberty and so manages to reconcile these two
normative values. The ultimate goal of this article is to provide an understanding of the broad contours of an egalitarian liberalism and the challenges that
face it - that is consonant with the recent developments in modern constitutionalism 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 values
is the tendency to give primacy to one set over another. I would like to suggest
in this article that, when considering the design of a constitution, it is important to pay attention to the structure of a theory of distributive justice, which
varies according to the values which are regarded as primary.2 An attempt to
harmonise equality and liberty will thus have particular implications for the
structure of a theory of distributive justice. In turn, this will affect the particular manner in which the values and rights are expressed in a constitution and
the design of the institutions that are developed to give effect to these substantive features of the constitution.
I have spoken about the structure of a theory. To understand this notion, it is
useful to employ a distinction drawn by Robert Nozick (1974: 15560) between
what he terms patterned and unpatterned theories of justice. A patterned theory, Nozick (1974: 156) contends, specifies that a distribution is to vary along
with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions. In simpler language, it is possible to
capture 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 a
particular criterion. There is only one all-encompassing view of how resources
should be distributed, which I shall refer to as a one-tier structure. Consider a
simple view, for instance, that a just distribution of resources in society is one
where everyone is to be provided with an equal amount of resources. In order to
make 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 advocating that the total annual gross domestic product (GDP) of a particular country is to be divided into equal shares amongst the citizens in a particular state.
Historically, certain communist states could be regarded as having sought to
impose a one-tier structure of distributive justice on their societies, and sought
to regulate the portion of resources each citizen could hold.

50

David Bilchitz

There are many difficulties that may arise with one-tier theories, only two
of which I mention here.3 First, Nozick contends that any attempt to maintain
a particular pattern would require continual interference to stop people transferring resources to others or to correct for such transfers, in other words to
forbid capitalist acts between consenting adults (Nozick 1974: 163). Onetier theories may indeed seek to achieve their conception of equality, but
they cannot do so without a serious invasion of individual liberty. Secondly,
such a structure of distributive justice avoids holding people responsible for
their spending decisions. No matter how much they spend or save, and no
matter what decisions they make, they will always be returned to a particular
level of resource holding. This would those with expensive tastes to impose
costs 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 individuals to transfer resources between themselves, from an initially equal baseline, in the manner in which they choose. They must also bear the costs of
their choices as an incident of this freedom. A just distribution is simply one
that flows from a process whereby initial acquisition was just and the process
of transfer is voluntary (Nozick 1974: 151).4 Whether a distribution is just or
not is dependent on the conformity of the history of transactions engaged in
by the parties in question with the principles of the entitlement theory. There
is no particular pattern or distribution that must be achieved and, so, Nozicks
theory 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 theory, it is likely though that there would be a large variation in the distribution
of resources in such a society. Equality only really matters for Nozick so long
as individuals are equally guaranteed the basic negative liberties he values
(Sen 2009: 291) and have strong protections for their ability to hold property
and transact. This view has the consequence that some individuals in society
may land up in positions in which they suffer severe hardship and, in extreme
cases, may even face severe threats to their survival. If the process that led to
their impoverishment was fair, there is nothing unjust about their predicament and no requirement that the state intervene in any way to address the
needs of these individuals. The theory thus privileges a particular account of
liberty at the expense of ensuring even a basic level of equality.
Furthermore, property relations in the Global South are so infected with
the history of injustice that it is difficult to hold that any distribution of
resources that exists today is unaffected by such an unjust history. A purely
process-based historical entitlement theory thus becomes impossible to sustain in this context. Nozick himself admits that under actual conditions of
historical injustice, it might be best to view some patterned principles of

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

51

distributive justice as rough rules of thumb meant to approximate the general

results of applying the principle of rectification of injustice (Nozick 1974:
231). That is a damaging admission for Nozick to make and renders his theory of severely restricted relevance when being applied to the modern context
of the Global South.
Two-tier Theories
Nozick only distinguishes between two types of theories: those that are patterned and those that are not patterned. I wish to contend that there is a set
of theories which falls into a third category which is of great importance and
which we may term as being imperfectly patterned theories. These theories
require a set pattern to be achieved in a certain domain but also allow for a tolerable variation in resource distribution in another domain. They may also be
referred to as a two-tier theory of distributive justice: they hold that there is
a certain distribution of resources that must be achieved and guaranteed
(which can be referred to as the first tier). The threshold or pattern of distribution required diverges between different theories. However, this distribution
only addresses certain minimum conditions for distributive justice and does
not exhaust the distribution of resources in the society. Beyond this threshold
or pattern, there are still numerous possibilities for how resources may be distributed and, in this second tier, there are various forms of distribution that are
consonant with distributive justice. A two-tier distribution is thus not allencompassing: it does not seek to specify the exact pattern of distribution of
resources that is just in a society and there is a tolerable variation of resource
distribution in the society. The role of the state is concomitant with this: the
state 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 second
tier, 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 required
to determine the exact distribution of resources in the society.
Several difficulties may also, however, be anticipated to arise in relation to
these theories. First, there is the problem of determining the threshold of distribution that must be guaranteed to all as the first tier. That threshold must be
sufficiently 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 determinate pattern of resource distribution in the society. There is always the danger that the requirements involved in reaching the first tier threshold may leave
very little room for the second tier and a tolerable variation of resource distribution. For instance, if the first tier requires all individuals to be guaranteed a
minimum level of functioning, the resources of the second tier can be spent on
disproportionately ensuring a very small group of individuals who are severely
health-impaired achieve a small improvement in their level of functioning.

52

David Bilchitz

The resources that were meant to vary in the second tier will, however, have
been 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 (see
also Liebenberg forthcoming). There are some recent studies, for instance,
which demonstrate that there is a relationship between income inequality and
health outcomes such as life expectancy (Daniels et al. 1999). Wilkinson
(1996: 53), for instance, quotes a study in Northern England which found that
death rates were four times as high in the poorest 10 per cent of wards as they
were 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 an
average income (measured in terms of purchasing power parity) of only
U.S.$6,410, yet they had a life expectancy of 75 years. Despite having four
times the real income, black American males had nine years less life
expectancy than males in Costa Rica (Marmot and Wilkinson 2001). This
seems 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 life
expectancy (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 second 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 harmonising a concern for equality and liberty. Whilst it provides no all-encompassing
account 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 full
description of how all the resources in the society are to be used. There is thus
a tolerable variation that may shift according to the exercise of individual
choice and responsibility. The state also has the power, albeit limited, to interfere with individual choice. I now wish to consider two of the most famous
theories of distributive justice and the sense in which they exhibit the structure
of two-tier theories. Understanding this structure, I will suggest, helps to highlight a number of important features about these theories. I shall also consider
the manner and extent to which they address the concerns raised above in connection with such theories.
John Rawls Theory of Justice
John Rawls (1999a) famously constructs a procedure (known as the original
position) to determine the principles of justice. The procedure is set up so as
to include individuals conceived as free, equal, rational and self-interested and

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

53

to enable them to make choices about the principles of justice that will govern
their society. Individuals are conceived of as being behind a veil of ignorance:
they lack knowledge about their own talents and preferences or social positions in the society. The information they have is that they require certain primary goods for whatever conceptions of the good they might have: these
include certain basic needs (natural primary goods) as well as social primary
goods, 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 of
equal 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 [difference
principle] and (ii) attached to positions and offices open to all [equal
opportunities principle].
Rawls (1999a: 53) places a strong emphasis on the equal basic liberties
principle, 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 rights
and from taking advantage of these openings. He claims thus that we must
distinguish between liberty and the worth of liberty (1993: 326). A society in
which individuals have nominal liberty but are starving is not one in which
liberty has much worth.
The main principle governing social and economic resource distribution is
the difference principle. The justification for the difference principle essentially involves recognising that, behind the veil of ignorance, individuals would
generally have reason to prefer an equal distribution of resources as they would
not know where they would land up in society. However, Rawls contends, people would accept that everyone might be able to do better for themselves by
accepting some level of inequality. Thus, if incentives are necessary to encourage productivity, efficiency and innovation, all individuals would be better off
by allowing some inequality to provide incentives and thus gain the benefits
created thereby (Rawls 1999a: 1301). The difference principle thus enables
inequality 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, yet
without any resources such liberty may be purely formal. It is unlikely that
people in the original position would agree to any level of inequality that did
not in fact guarantee that their liberties would be worth exercising. Rawls
considers the possibility that the worth of liberty requires guaranteeing every
individual a fixed bundle of primary goods: he, however, finds that such a

54

David Bilchitz

suggestion is superfluous in light of the difference principle as any fraction

of the index of primary goods enjoyed by the least advantaged can already be
regarded 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 be
necessary to make the liberties (guaranteed in the first principle of justice)
meaningful. The difference principle too would ensure that the least advantaged be entitled to a certain level of primary goods. Rawls (1999a: 244)
indeed contends that one of the institutions necessary for a society that gives
effect to the difference principle is a transfer branch which ensures the establishment of a social minimum. This level of distribution could thus be regarded
as 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 is
a clear constraint placed on the inequality that may develop but, nevertheless,
the resources each individual holds may vary. Given these equal liberties
and certain other conditions secured by institutions in particular, equality
of opportunity and a social minimum any one of a wide range of distributions of good things taking place as a consequence of legitimate inequalities
of the second part of the social structure is acceptable to justice (Rawls
1999b: 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 applying Rawls theory is the attempt to achieve some level of certainty as to the
threshold of resources that a society must guarantee. He states that [o]nce the
difference principle is accepted, however, it follows that the minimum is to be
set at that point which, taking wages into account, maximizes the expectations
of the least advantaged group (1999a: 252). Setting these expectations, however, involves considering the long-term prospects of the least favored extending over future generations (ibid.). Setting a social minimum for Rawls thus
involves establishing somehow what would maximise the expectations of the
least advantaged group; it also involves understanding when too high a minimum would reduce efficiency and innovation in the society; and, further,
requires taking into account some kind of saving for future generations and
the 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 what
level or threshold of equality will be guaranteed in a just society.
The lack of clarity as to what Rawls theory entails renders it difficult to
respond to the challenge as to whether the social minimum in question would
usurp the second tier. The difference principle is meant to answer this problem
by holding that the least advantaged would realise that too high a minimum
would lead to serious losses in incentives which would impact upon efficiency
and 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 much
inequality and too limited a social minimum: if we accept a general justifica-

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

55

tion that incentives enhance productivity and innovation which all benefit the
least advantaged, the difference principle could be compatible with a high
level of inequality.
This leads us to the second problem: the difference principle allows for
inequality but, again, it is unclear exactly what level of inequality would be
allowed or not. If the second tier is too great in extent, it could well be argued
that too great a level of inequality would harm the least advantaged. Class and
power structures emerge that reduce the prospects for the least advantaged to
improve their lot. Some limitations would thus need to be placed on the level
of inequality that develops. In some sense, the difference principle thus contains a clear limitation on the amount of inequality that may develop in a just
society: 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 least
advantaged is going to be difficult to determine.
Rawls theory thus appears to include a high level of indeterminacy, which
does not render it particularly helpful for practically ascertaining the degree
of distribution that can be held to be fair in a constitutional democracy. It
instead perhaps can be seen to be particularly useful in this context for two
key elements: first, it appears to instantiate very strongly the structure of a
two-tier theory of distributional equality, though it lacks specificity as to how
to specify the tiers in question; secondly, it appears to articulate a point of
view from which justice can be ascertained: distributional fairness is determined from the perspective of those who are least advantaged. Once again, as
many critics have noted, the composition of the latter class is not entirely clear
but it places a requirement on how we evaluate social systems, recognising
that both dimensions of basic liberties and resource distribution must factor in
how to improve their lot. In the face of these criticisms, I now wish to consider
an alternative theory of justice that of Ronald Dworkin which developed
out of an attempt to respond to some of the difficulties in the theory of Rawls
and consider how it addresses the problems identified above.
Ronald Dworkins Equality of Resources
There are two principles that form the foundation of Dworkins theory of
equality. 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 successful
rather than wasted, and this is equally important, from the objective point of
view, for each human life (2000: 5). Dworkins second principle is what he
terms the principle of special responsibility: one person has a special and final
responsibility 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 equality he articulates he terms this equality of resources which has three central components. First, this theory involves the claim that, generally, each
person should receive an equal share of a communitys resources. The next

56

David Bilchitz

two components specify when departures from equality of resources may be

allowed. The second component involves the idea that inequalities in the holding 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 of
resources over time. The third component involves the claim that inequalities
in the holding of resources are justified when they reflect choices people make
for which they should be held responsible. I now turn to consider the various
components of his theory in more detail.
Equality of Resources
Dworkin commences his account of equality with a thought experiment. He
imagines a group of shipwrecked survivors who arrive on an island which has
abundant resources and is not populated. These immigrants must decide how
the islands resources are to be divided amongst them. They accept the principle that no one is antecedently entitled to any of these resources, but that they
shall be divided equally among them (ibid.: 667).
What is an equal share of resources? Dworkin claims that an equal share of
resources does not involve each person receiving an identical bundle of
resources. This is partly because certain resources are non-divisible such as
milking cows and those that are divisible vary in quality the fertility of
tracts of land. It would also be undesirable, he claims, as identical bundles of
resources would favour those with preferences that were satisfied by these
bundles over those with preferences that were not satisfied by them. To achieve
a more equitable distribution of resources, peoples bundles must be allowed
to 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 elses
bundle of resources to his own bundle (ibid.: 67). In order to attain a situation
that is envy free, the immigrants adopt a market mechanism. Each person is
initially given an equal number of clamshells (an item that is not valued in
itself and can be used as a form of currency). All the items on the island are
divided in such a way that they can be acquired if people desire them. People
then 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 test
would be satisfied. Equality of resources aims, in Dworkins view, to
equalise 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, that
resource is for others (ibid.: 70).
Choice and Circumstance
Having specified in what sense equality is to be attained, Dworkin then
addresses the circumstances under which inequality may enter his theory. At

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

57

the centre of his account, is a distinction between peoples choices and their
circumstances (ibid.: 3223). Peoples choices are said to reflect their personalities, 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 or
motives for making one choice over another (tastes, preferences and convictions, for instance). The second aspect of the personality is character, which
refers 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 resources
involve ones health and abilities (general fitness, talents and other capacities);
impersonal resources are those resources that can be reassigned from one person to another (wealth, opportunities, property).6
Dworkin claims that we take responsibility for our personalities and attempt
to modify our ambitions and character where we find them lacking. Our circumstances, however, cannot be changed by individual effort and they are not
the result of individual choice. We must distinguish between what we must
take responsibility for, because we chose it, and what we cannot take responsibility for because it was beyond our control (ibid.: 323). This distinction leads
to a particular theory of distributive justice which recognises two circumstances
in 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 resources
gained in an equal auction (ibid.: 89). The farmer who produces more crops
due to her choice to work harder than the farmer next door (who enjoys watching television) should be entitled to the extra income she gains.
However, inequalities must reflect only the differential choices people
make, and not their differing abilities. Thus, the distribution of resources must
be endowment-insensitive: it must not be affected by differences between people for which they cannot take responsibility. If two farmers wish to produce
the same amount of produce and are willing to put in the same effort, yet the
one has a natural talent at raising crops whilst the other does not, then the talented farmer is not entitled to a greater share of resources. It is unfair, Dworkin
claims, that one person should have greater resources than another due to the
effects 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 who
turn out to be better off to those who turn out to be worse off, Dworkin proposes that an insurance market should be added to the initial auction of
resources. Insurance allows us to estimate how much people would have chosen to spend at an initial auction to cover the risk of brute uncertainties affecting their lives. The contributions people would have made in such a situation
can be collected as a tax7 and would then constitute a fund from which compensation can be paid to people who are badly off as a result of their disabilities or lack of talents.8

58

David Bilchitz

In this way, Dworkins theory of equality allows some to have an unequal

share of material resources to compensate them for significant differences in
their personal abilities. This circumstance, together with inequalities that result
from peoples choices for which they are responsible, would be the two situations 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 certain 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 distribution
in a society. Yet, when we look a little closer, I would contend that it contains
several 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 the
choices they make in life for which they may be held responsible. This principle exemplifies a core element of a two-tier view: whilst there is some baseline
of equality, there is a tolerable level of inequality that exists beyond that baseline 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 would
look very much like that of Robert Nozick where the history and voluntariness
of particular transactions would determine individual holdings. Without a clear
baseline, variation would rule the day.
The hypothetical insurance device, however, is central in mitigating the
effects of choice and in setting a minimum standard of distribution that all can
expect 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 the
negative effects of brute luck on their lives. A clear problem of course is that
it is not possible to determine what and how much individuals would have
chosen to insure against through such a notional device. Nevertheless, though
no such judgement admits of any exactitude, Dworkin is clear through his discussion of the practical applications of this view that it would support setting
up a guaranteed minimum standard of healthcare for all (ibid.: 30719) as
well as a basic social welfare system (ibid.: 32050). On plausible assumptions, it is likely that people would ensure against the worst harms befalling
them. There remains, however, a lack of clarity as to the threshold of provision
the hypothetical insurance device would justify in the first tier and how extensive it would be. Nevertheless, in attempting to compensate for the effects of
brute luck, Dworkin requires the articulation of a threshold of resources that
is guaranteed to all. That threshold does not exhaust a fair distribution in society, 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 thus
Dworkins view is an exemplar of this structure.
As we have seen, though Dworkin articulates a mechanism for determining
the threshold represented by the first tier, there remains some indeterminacy
in this regard. How does Dworkins theory fare in relation to the other two

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

59

problems identified above that can arise with two-tier theories? First, would
the first tier require so many resources that little is left over for the space of
choice? Dworkins theory, however, includes two important and related ideas
that help to address this problem in a fairly convincing manner. The first is the
hypothetical insurance market, which places a limit on the resources devoted
to the first tier. Individuals would presumably not insure for every conceivable
risk and thus the device itself places a limitation on what would be devoted to
the first tier.9 The second related idea is that of opportunity cost. Dworkins
theory is constructed strongly on the basis that equality of resources must take
into 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 the
original auction. Thus, for instance, traditional worries about utility monsters
who require a large number of resources for a small increase in their welfare/preferences are addressed as such people would not be able to afford
that level of resources in any auction. The interests of others thus place a limit
on 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 leaving
a space for resource variation in the second tier.
The final problem raised above concerns whether inequality in the second
tier may affect the ability to realise the first tier. This is a more serious problem
for Dworkins view. The view itself is based, as we have seen, on a strong distinction between choice and circumstance: people must receive the benefits
and bear the costs of their choices but should not have their resources vary for
reasons attributable to circumstances beyond their control. Cohen has
famously criticised Dworkin and sought to show that the environment people
grow up in often, for instance, affects their tastes and preferences, some of
which will be more expensive to satisfy than others (Cohen 2011: 205).
Dworkin denies that one should be compensated for such tastes, but Cohen
attempts to show that his refusal appears to be unfair. The underlying principle
which should be the basis of distribution would be one that compensates individuals 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 the
nature and range of choices people face. Our background also influences the
extent to which we value the ability to choose: in traditional Islamic or Chinese
societies, for instance, less emphasis is placed on individual choice than in
Western 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 New
York or into a poor family in Ghana. The fact is that people identify with and
cannot help identifying with aspects of the self that, when analysed, can be said
to arise as a result of brute luck. Ones bodily features, talents and preferences
are 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

60

David Bilchitz

luck has partly constituted who we are and we cannot escape the effects thereof.
Thus, attempting to distinguish between chosen and unchosen features of the
self seems to be like attempting to divide what is fundamentally intertwined.
This line of thought challenges our ability neatly to separate the two tiers
on Dworkins view. If there is no sharp distinction between choice and circumstance, then it is difficult to determine the scope of a second tier and how
much variation should be allowed therein. The lack of complete separability
between choice and circumstance also leads us to recognise that the inequalities which develop in the second tier would create the environment and circumstances which have an influence on the choices individuals will be able to
make in the future. Since individuals are not neatly separated from one
another, the choices of some may create an environment which others face
that they have not chosen. The most obvious example of this is newborn children whose range of choice to realise their preferences may be restricted by
the decisions others have made and the distribution of resources that results
from 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 responses
they provide to the problems that attach to this structure. In this section, I wish
to defend the view that the two-tier structure is best placed to help address and
reconcile various features of the modern constitutions that are emerging in the
Global South. These abstract philosophical theories discussed above offer a
normative conception of how to develop a defensible two-tier theory for the
modern constitutions with which we are concerned. The concrete project of
giving effect to a constitution will no doubt require further specification of
the 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 theories
face 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 not
avoid questions of distributive justice: usually, these issues are enshrined
through a series of provisions granting individuals entitlements to certain
socio-economic resources often known as socio-economic rights. There are
also usually many provisions in these constitutions that protect civil liberties
and participation in the political community known as civil and political rights.
These dimensions of modern constitutions broadly correspond to the entitlements which flow from a concern for equality and liberty.
A constitution is, however, a document that regulates the basic interactions
in society: it is not meant to determine all questions in advance for that society

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

61

but rather, in Rawls conception, to set the terms of social co-operation in a

fair manner (Rawls 1993: 22730). The civil rights protect a space of freedom
within which individuals are entitled to live out their own conceptions of the
good. They do not determine exactly the manner in which individuals should
live nor should those rights do so. Socio-economic rights are similar: they are
not meant to be exhaustive commitments that fully determine the manner in
which resources are distributed in a society. Instead, they ensure that individuals are guaranteed a certain threshold of provisioning, which places constraints on the permissible range of distributions that may result. Thus, the
South African Constitution, for instance, guarantees that everyone is entitled
to have access to adequate housing and everyone is entitled to have access to
sufficient food and water.11 Individuals must be guaranteed the threshold of
resources relating to housing that is adequate and relating to food and water
that is sufficient. The Constitution is silent about what distribution is fair
beyond the realm where all meet this threshold. These provisions seek to
ensure that all people are equally guaranteed enough to live decent lives.
Constitutions thus are not by their very nature designed to create a fully allencompassing answer to the question as to how resources are to be distributed
from that time onwards. Their very goal is to regulate the basic structure of
society (Rawls 1993: 258). That structure, it has been recognised in the modern constitutions of the Global South, must include certain constraints placed
upon the distribution of resources (and requirements for government action)
such that every individuals socio-economic entitlements are met. That level
of distribution is not meant to exhaust the full distribution of resources in society. As such, the two-tier structure articulated above gives expression to the
very role that constitutions are designed to play in these societies.
Democracy and Two Tiers
Two-tier structures are also strongly defensible for reasons flowing from
democratic values. A constitution is passed at one particular point in history
for a variety of historical and other reasons. The recent constitutional commitments represent a historical consensus that certain minimum conditions for
distributive justice must be attained in these societies. Yet, to fix the exact distribution of resources in a society for all time in a constitution would be
severely to restrict the realm of democratic politics and the preferences of people in a specific polity. Ultimately, one of the most important decisions which
a society should be entitled to make concerns which particular distribution of
resources 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 decisionmaking is severely narrowed. What the modern constitutions seek to do, I contend, is to place constraints upon the distributions that can result from
democratic decision-making but not fully determine those distributions.
The new modern constitutions essentially recognise entitlements to certain
resources that protect the very integrity and well-being of individuals and are

62

David Bilchitz

general necessary conditions for the realisation of their purposes (Bilchitz

2007: 645). Without such protections, democracy cannot function properly
as individuals who lack these resources are constrained in their ability fully
and equally to participate in such a democracy (Liebenberg 2010: 32). These
constitutions, through regulating the distribution of resources and setting a
threshold of adequacy that must be met, thus protect the very preconditions
for meaningful political participation whilst not determining fully the outcomes of that participation. They also protect the general necessary conditions for individuals to realise their conceptions of the good whilst leaving
room 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-tier
structure 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 for
variation according to the political forces and ideologies that gain majority
support at a particular point in time. There is a certain modesty to a two-tier
structure, a recognition that there is strong disagreement about the ultimate
questions of distribution. As we have seen in the context of Dworkins theory,
this modesty is also required by our inability to specify rigidly what features
of an individuals life flow directly from their own choices or circumstances
beyond their control. No-one can fairly or reasonably refuse guarantees that
everyone be adequately nourished in a society; however, whether ultimately
equality of welfare or resources is to be achieved and which conception
thereof is better is a matter for determination through democratic debate in
the 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 structure
also preserves the democratic space in another way relating to the separation
of powers. Most modern constitutions contain provisions to avoid the concentration of power in one particular branch of government and divide such powers between, at least, legislative, executive and judicial branches. Judges, in
most of these modern constitutional systems, have the power of judicial review
and thus have the final say over the interpretation of the constitution and the
fundamental rights provisions contained therein. Were constitutions to
enshrine 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 would
have virtually no space in which to vary the distributive scheme that was
already laid down in the constitution. A two-tier view provides judges with a
role in ensuring that the first tier is met and that the socio-economic rights
contained therein are realised. At this point, however, judges must withdraw
and leave further decisions surrounding distribution to the legislature and

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

63

executive (provided they conform with other constitutional doctrines such as

non-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 socioeconomic rights has, for instance, been that they grant judges too much power
in relation to the distribution of resources and that it is not legitimate for them
to interfere with elected branches in this domain (see, for instance, Pieterse
2004). A two-tier view helps to respond to these concerns restricting the realm
of judicial involvement to the first tier and maintaining a space for democratic
organs to hold sway in the second.
Yet, it may be argued that the first tier (as we have seen in the theories of
distributive justice discussed above) is not entirely determinate and that twotier theories struggle to maintain the distinctness of both tiers. If this is the
case, it would seem that representative institutions such as parliament should
have some say in the determination of the threshold of provision that is guaranteed by the first tier. Moreover, there are often difficult controversies as to
the policies that are required to ensure that the first tier is met: do minimum
wage laws, for instance, guarantee individuals an ability to have an adequate
standard 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 institutional division of labour required by a separation of powers doctrine neatly
tracks the two tiers of a theory of distributive justice: namely, that the first tier
is for constitutional courts and the second tier is for democratic institutions.
Nothing I have said, however, implies this result: the modern constitutions that
enshrine socio-economic rights do not suggest that the realisation of the first
tier is the responsibility of constitutional courts alone. Indeed, the South
African Constitution clearly provides in section 26(2), for instance, that the
state must take reasonable legislative and other measure, within its available
resources, to achieve the progressive realization of this right. All branches of
government must be involved in ensuring the first tier is reached: the role of
constitutional courts is one of review, that is to ensure that the policies and
programmes adopted by other branches of government meet the adequacy
standards required by the constitution.
Courts thus have a specific role in interpreting the standards or thresholds
required by the constitution. They may, in doing so, have regard to the specifications provided by other branches of government though these can never be determinative given that these thresholds are constitutional standards binding on these
other organs. Broad normative and empirical considerations concerning the minimum conditions of distributive justice for a particular society must inform the
standards that are developed and the insights gleaned from the leading philosophical theories discussed above can be drawn on in such interpretations.

64

David Bilchitz

Within the first tier, courts would have a clear and pressing role in developing harder standards rooted in the most urgent interests of individuals in being
free 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 less
room for reasonable disagreement about the need for ensuring that individuals
do not starve, sleep on the streets or lack life-saving healthcare where, in
Rawls terms, the worth of liberty is completely diminished. Where such needs
are not adequately being attended to by representative branches of government, judicial intervention would be most clearly warranted. Courts would
thus have a role to play in ensuring that individuals most urgent need for
resources is prioritised. Beyond this, they would need to develop with the
allowance for input by representative institutions the more expansive standards 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 provide for a fully specified theory of distributive justice: instead, they require
courts to have a central role in ensuring a prioritarian concern for those who
face threats to their survival and to engage in a determination of the standard
of adequacy required by the first tier. Since there is a need for some fixed
standards in determining the sufficiency and priority levels, these cannot
simply be left to the space of democratic debate and it is here where the
expertise of judges can assist in providing more determinate standards for
the society in question.
However, there is also a need for specific methods and policies for realising
the constitutional standards that are developed. These, it seems, would best be
developed by representative institutions which have the expertise in policy
construction. These methods would naturally be capable of review by the constitutional court against the constitutional standards that are developed: if a
government abolished minimum wage legislation, for instance, the court may
be required to consider the expert evidence provided to it about whether such
a measure would in all likelihood result in individuals being unable to meet
the standards of adequacy for housing, food and social security required by
the constitution. In this way, representative institutions are provided with the
freedom to develop policy to realise the first tier within the constraints set by
the 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 not
required to regulate and determine the entire distribution of resources in the
society. Instead, the state is responsible for guaranteeing that the first tier of
distribution 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 be
wholly determinate on the philosophical theories examined; at the same time,

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

65

it is clear that in modern constitutions these theories do not confine it to a

very minimal level of protection.13 The state is required to guarantee adequate housing and sufficient food and water. Achieving these levels of distribution equally for all involves a large role for the state: there will need to be
expansive programmes to ensure quality healthcare, education, housing and
welfare schemes are in place. This is far-removed from Nozicks minimal conception of the state. Yet, at the same time, the state is required to make space
for individual liberty: it is not required to engage in (and in fact could be prohibited from) tracking every transaction of individuals and to redistribute
goods according to a desired curve or model.
In the context of the distribution of resources, two-tier views thus maintain
and respect a variant of the liberal distinction between the private and the public. This distinction has often been employed in relation to the realm of freedom: the liberal state is one in which the public sphere must be restricted so as
to allow for exercises of private autonomy. It is fascinating the manner in
which a two-tier theory of distribution also embodies a conception of the role
of the public and private. There is indeed a strong role for the public sphere in
conditioning the distribution that exists; yet, there must be a space for individuals to exercise their own choice within a private sphere. Rawlsian theory may
see such a choice as emanating from the need for incentives to help improve
the lot of all; Dworkinan theory would rather root such a private space in
notions of responsibility underlying his theory. Conversely, private power may
also be restricted to the extent that it interferes with the achievement of the
standard of equality of sufficiency guaranteed by the first tier.
These ideas have clear implications for the role of free markets within twotier theories. In some sense, the importance of maintaining the second tier
requires that markets be provided with a domain in which they can operate,
yet such theories do not allow markets unrestricted free reign. Market mechanisms may be an efficient manner of giving expression to individual preferences: 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 the
choices for which they may be responsible (Dworkin) and provides incentives
for activities that are highly valued in society (Rawls). The second tier allows
for these insights to have some force, though differing societies around the
world will be able to determine democratically how much variation in individual holdings they consider acceptable.
At the same time, the constitutional requirement that the first tier be realised
indicates that markets may only operate within a limited sphere. Apart from
good economic arguments about market failure, the first tier is supported by
strong normative claims that all individuals must be guaranteed a certain level
of 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 not
anti-market: yet, they justify restricting the effects of market distributions. They
thus represent a balance between unrestricted capitalism and outright socialism.

66

David Bilchitz

Conclusion: The Contours of Egalitarian Liberalism

and Distributive Justice
At present, many developing societies, despite strong normative commitments in their constitutions, are essentially operating with a no-tier view of
distribution, allowing market forces to hold sway with very limited restrictions. In this article, I have sought to outline a structure of distributive justice
for constitutions that embrace both equality and liberty as central values.
Such constitutions should not, I argue, develop a fully all-encompassing
vision of distributive justice: it is for democratic politics to determine what
any such distribution should be. Such constitutions should also leave a space
in which individual life chances will vary with their own choices and responsibility. At the same time, such constitutions require ensuring that everyone
is equally guaranteed a certain level of resource distribution. The difficulties,
I have argued, arise in arriving at some level of determinacy around the first
tier as well as ensuring that both remain distinct and separate. I have sought
to show the manner in which two of the leading theories of distributive justice
exhibit a two-tier structure and have attempted to address the difficulties with
such theories.
The inclusion of both values and rights connected with liberty and equality
in modern constitutions may lead some to argue that there is an unresolved
tension at the heart of this modern constitutionalism. Clearly, in order to make
this argument, one needs to develop conceptions of equality and liberty which
are in tension with one another. Two-tier views of distributive justice can, in
my view, offer a hope of showing the manner in which equality and liberty in
these constitutions can be reconciled. The domain of distributional equality in
such views, as has been argued, is restricted to a particular tier; beyond that
tier, distributions may vary in accordance with individual autonomy and
responsibility. Liberty, conceived of as unconstrained negative freedom, is
restricted to some extent through attempting to realise the first tier, which will
no doubt require progressive taxation and limitations on private property
rights. At the same time, equal liberty, in another more positive sense, is protected by such a first tier since the very preconditions for every person to
exercise their autonomy (as well as to participate in politics) are guaranteed.
The restriction on the negative liberty of some serves to expand the effective
exercise of liberty for all in the society. Moreover, that restriction on negative
liberty is not complete and leaves space for a variation of distribution in accordance with individual preference and responsibility.
I have also sought to show how a two-tier conception of distributive justice
coheres well and helps develop institutional features of these modern constitutions such as democracy, the separation of powers and the nature of the state.
Constitutional courts have a particular role to play in developing the constitutional standards required by the first tier and representative institutions too
must deliberate on both the methods to ensure the first-tier threshold is

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

67

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 concrete expression to them in policies and court judgements, the contours of a
viable and exciting form of egalitarian liberalism that addresses the severe
inequalities facing societies in the Global South will begin to take shape.
DAVID BILCHITZ is a Professor of Human Rights and Constitutional Law at
the University of Johannesburg. He is also Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law
(SAIFAC) and Secretary-General of the International Association of Constitutional Law. He has a B.A. (Hons) LL.B. from the University of the Witwatersrand and an M.Phil. in Philosophy and Ph.D. in Law from the University
of Cambridge. His monograph Poverty and Fundamental Rights was published
by Oxford University Press in 2007, an edited collection titled the Human
Rights Obligations of Business: Beyond the Corporate Responsibility to
Respect? was published by Cambridge University Press in 2013, and he publishes widely in the intersection between political philosophy and constitutional 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 the
constitutions 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 stimulating comments which have played an important role in its revision. I would
also like to thank Prof. Daryl Glaser for his collaboration in holding the conference 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 developments and social change means that it is desirable to enshrine provisions that provide a particular 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.

68

David Bilchitz

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 rectification.
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 impersonal 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 importance 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 University
Press.
Bilchitz, D. 2013. Constitutionalism, the Global South and Economic Justice, in D.
Bonilla Maldonado (ed.), Constitutionalism of the Global South: The Activist
Tribunals of India, South Africa and Colombia. Cambridge: Cambridge
University Press, 41-94.
Cohen, G. A. 2011. On the Currency of Egalitarian Justice and Other Essays in
Political 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 Liberal
Tradition, South African Law Journal.

Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

69

Marmot, M and Wilkinson, R. 2001. Psychosocial and Material Pathways in the

Relation between Income and Health: a Response to Lynch et al, British Medical
Journal 322: 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 Socioeconomic 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, 7395.
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 as
Foundations of South Africas Basic Law. Cape Town: Juta.

Copyright of Theoria: A Journal of Social & Political Theory is the property of Berghahn
Books and its content may not be copied or emailed to multiple sites or posted to a listserv
without the copyright holder's express written permission. However, users may print,
download, or email articles for individual use.