kenta tsuda, an empty community, nlr 86, march-april 2014

7/25/2019 Kenta Tsuda, An Empty Community, NLR 86, March-April 2014

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private charitable dispensations to the needful. For Bull as for Babeuf,any inequality necessarily entails a ‘crime’—an injustice that the politicalcollectivity must expunge. A politics of equality must universalize itself,seeking ‘a shared deprivation for all’. That is, to be a fully self-consciousegalitarian is to be a negative communitarian, who, turning Nietzsche’swords of warning into a positive commitment, ‘makes revolutions andwill continue to make them’. 3

Bull’s discussion of political equality, with its reasoning by way ofNietzsche, allows a very clear delineation of the contrast between the‘equality’ of ‘permanent revolution’ and that embedded in a system ofprivate rights and the liberal state that realizes it. Indeed, he claims thatthe difference is fundamentally one of kind, and not merely of degree.However, at two points he seems to mischaracterize the conceptual bor-ders that separate his negative communitarianism from existing liberalpolitical theory. First, he denes his position against theories of ‘distribu-tive justice’ in general, overriding the thought that negative communitymight best be treated as one variant of that general category. Second, heclaims that negative communitarianism is not a theory of rights—eventhough, however greatly it may differ in substantive terms from other

such theories, it shares their conceptual structure. These moves repayclose attention, leading to important—and unresolved—issues in Bull’snegative communitarianism.

Extra-egalitarianism as rights theory

Unlike Marx, Bull does not postpone the realization of negative com-munity to a period of post-revolutionary superabundance; and prior to

the days of Edenic bounty, society necessarily confronts the ‘economicquestion’: what individual claims to goods will society recognize andenforce? Negative communitarianism directly answers this question:

1 See, for example, Laurent Aynès, ‘Property Law’, in George Bermann and EtiennePicard, eds, Introduction to French Law , Frederick, md 2008, pp. 147–8. (‘The mostimportant break in the history of property law was the French Revolution, leadingto Napoleon’s Civil Code . . . Portalis describes individual property as “the univer-sal soul of all legislation”. This vision culminated in the denition of property in

Article 544 of the French Civil Code: “Property is the right to enjoy and dispose ofthings in the most absolute way, as long as the use made of it is not prohibited bylaw or regulation.”’)2 Malcolm Bull, Anti-Nietzsche, London and New York 2011 (hereafter an ), p. 157.3 an , pp. 155–6.



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society will enable each individual to access goods when and as theyare needed. 4 Bull’s doctrine proposes a standard by which transactionswill be deemed just or unjust, and then, presumably, enforced or pro-hibited by some institution—if not by a state, then by the spontaneousacts of citizen-vigilantes. This theory is at root an account of how indi-viduals can make claims, and of the duties of others to recognize theseclaims: ‘negative community and permanent revolution offer to the une-qual (unproductive individuals, undeveloped classes and peoples alike)access to that on which they might otherwise have no claim.’ 5 In Bull’snegative community, under pervasive, collectively enforced norms, allmembers of society observe the duty to honour claims by the needful intheir moments of apprehension and consumption of a good. Thus, thetheory is centrally concerned with distributive justice.

It seems strange that Bull should oppose his theory to that of ‘distributivejustice’ in general. 6 It is not, as Bull claims, the absence of ‘exclusivity’that distinguishes his theory from more conventional egalitarian theo-ries of distributive justice. 7 As philosophers have pointed out, the veryact of negating a good by consumption necessarily involves making anexclusive claim on it. 8 For example, even if a foodstuff can be divided to

accommodate the caloric needs of several people, each consumed por-tion will have been rendered exclusively the use-thing of its consumeronce it has been chewed, digested and excreted. Use negates it as a food-stuff, and thus as a good to be shared, claimed or used. Use is exclusive,and insofar as use is sanctioned under a shared system of norms—asone would expect to be the case in any community—the consumer’scollectively sanctioned use is necessarily an exclusive claim made upon

4 Bull does not specify whether the use of goods over and above the threshold ofneed will be prevented, remain tolerated but unprotected by societal guarantee,or remain protected but by a guarantee weaker than that provided in existingproperty regimes.5 an , p. 159 (emphasis added).6 ‘If everyone can just take what they need, the ideal of egalitarian inclusiveness isextended to the point where it dissolves the concept of property, and with it the pos-sibility of equality, or any form of distributive justice.’ an , p. 159.7 an , p. 157.8 G. W. F. Hegel, Hegel’s Philosophy of Right , trans. T. M. Knox, London 1967,§§ 59–62. In the Remark to § 62 Hegel uses the example of feudal tenure in whichtitle and use-rights are vested in different persons, nding such an arrangementfundamentally irrational, going so far as to describe it as generating an ‘insanity of[legal] personality’.



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a good. Rather than saying that negative community sanctions no exclu-sive claims on goods, Bull more correctly could have stated that unlikein other regimes of distributive justice—for example, regimes of bour-geois private law—exclusive claims on goods are sanctioned only wheneffected by the act of negating the good in needful consumption.

The existence of such exclusive claims contradicts Bull’s statement thatnegative community acknowledges ‘equal access to property but noproperty rights . . . because property as such will not exist.’ 9 There is a

prima facie contradiction in this pronouncement: how can there be ‘equalaccess to property’ when ‘property as such’ does not exist? The statementturns on the contrast of ‘property’ and ‘property as such’, the formerreferring to goods that an active and social human being apprehends,uses or consumes, the latter referring to the institution that enforcesexclusionary claims of an individual to the ownership of a good, underthe aegis of which individuals in bourgeois societies appropriate, use orconsume, and alienate ‘their’ goods. With the abolition of the institutionof property, Bull seems to imply, individuals will be universally unableto appropriate goods. The negative community will recognize no propri-etary claim to use or exclude others from a good on the basis of anything

other than need.

But while negative community is vastly different from the propertyregimes with which we might be familiar, it is a property regime none-theless. The banishment of ‘property rights’ and ‘property as such’ fromthe negative community is conceptually suspect. According to the canon-ical theorization of legal conceptual categories, where one individual isencumbered with a duty to observe the claim of a second, the second’s

claim is by denition a claim of right: the second is said to bear a ‘right’correlative to the duty on the rst. 10 Bull’s doctrine of ‘equal access’ or‘each according to need’ differs radically from the classical doctrines ofproperty right—whether in common law in England and America, or asdeveloped in the post-Enlightenment codes in continental Europe—in

9 an , p. 157.10 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in JudicialReasoning and Other Legal Essays, New Haven 1919. On the seminal and founda-tional status of Hohfeld’s conceptual analysis in Fundamental Legal Conceptions,see Joseph W. Singer, ‘The Legal Rights Debate in Analytical Jurisprudence fromBentham to Hohfeld’, Wisconsin Law Review , 6, 1982, pp. 984–9.




the way it locates rightful claims and duties. But for all his resistance tothe label, it is a theory of rights, and insofar as it concerns claims to theuse of inanimate goods, like land and chattels, it is an alternative theoryof property rights.

What is ‘need’?

Negative communitarianism should perhaps be understood as anattempt dialectically to overcome the inadequacy of formal rights: ratherthan embracing their antithesis 11—the substantively ‘equal shares’ ofBabeuf—Bull synthesizes the two in a higher-order formal provision,such that it is an equal right to the satisfaction of needthat serves as theunit of commensurability and, ultimately, founds the complete equalityobtaining among the citizens of the negative community.

While conceptual formality is certainly no vice, the category of ‘need’requires further interrogation. Suppose that by a twist of fate and his-tory, the philosopher were to become king and, after arduous politicalstruggle, Bull were to establish negative community. Disputants andfunctionaries in the Bullian courts would initially thank the philosopher-

king for drastically simplifying the adjudication of disputes over goods:every disagreement would call for a doctrinally identical determination ofwhich of two parties needed the good. And where need was equal, usuallycases would be easily resolved by dividing the good in question.

The Bullian courts would have their hard cases too, however. For exam-ple, they might occasionally preside over disputes in which the goodis exclusive and indivisible, where division would qualitatively change

the good, rendering it no longer ‘needed’ by either of the litigants—theproverbial ‘splitting of the baby’. Since negative communitarians prior-itize equality foremost, and have no inhibitions about Pareto-inferior

11 Bull describes the regime of ‘private property’ as articulated by Pufendorf asrealizing a form of equality in which ‘individuals will have whatever they havein equal shares to the exclusion of every other proprietor’ ( an , p. 157). He thusseems to locate the ‘equality’ inherent in the bourgeois property regime—of whichPufendorf was an early herald—in its allocations of ‘equal shares’. On the contrary,

this regime’s equality is purely formal, and made without reference to substantiveallocations of goods; under liberal property regimes equality is located only in theformal equality of every proprietary relation between an individual and the goodsover which he has a claim, regardless of the magnitude of these shares.



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outcomes, 12 even where opposing needs are equal, a ‘splitting the baby’situation would be easily solved—the good in question would be negated(destroyed or changed qualitatively into another good) so that equalneeds are realized equally (that is, not at all).

But what of a situation in which the litigants’ very conceptions of‘need’ are qualitatively different? In his fuller essay treatment of extra-egalitarianism in these pages, Bull inadvertently gestures at just such asituation. Invoking and criticizing a thought experiment by the philoso-pher Jonathan Wolff, he imagines

a small town in a southern state in the United States. Your town has oneswimming pool and no funds to build another one. The state legislaturepasses a law on the racial segregation of swimming pools. You are opposedto racial segregation, so you close the town pool. 13

The situation, for both Wolff and Bull, is one of a desirable privativeoutcome. 14 However, Wolff reects on the possibility of viewing the poolstory at the same time as involving distributions of multiple goods—each presumably satisfying different needs—for example, pool use andsocial solidarity. 15 Such a case poses a serious problem for Bull’s negative

communitarianism: the theory faces a second-order question of how torank the needs themselves.

The problem of ranking needs can be better considered by modifyingthe hypothetical. Wolff’s exemplary case, with an enlightened-reformermayor negating an exclusionary state of affairs, is a neat instance ofextra-egalitarian levelling down. But we might also invoke a structur-ally similar situation from the history of the us state of Virginia in

the 1960s, the ‘Stanley Plan’ designed to resist the federally imposed

12 More precisely, Bull and Jonathan Wolff advocate a strong version of Pareto-inferiority: a ‘Pareto-inferior’ change refers to any change in which at least oneplayer experiences a fall in utility; the changes in the southern town and StanleyPlan examples which follow are ones in which not only does at least one playerexperience a fall in utility, but also no player experiences an increase in utility.13 Malcolm Bull, ‘Levelling Out’, nlr 70, July–Aug 2011, p. 14.14 Bull argues that Wolff is correct to consider this a situation of desirable ‘levelling

down’. However, he adds that in limiting the example to a situation in which theextent of the levelling is narrowly circumscribed, Wolff avoids confronting the pos-sibility of ‘levelling out’.15 Jonathan Wolff, ‘Levelling Down’, in Keith Dowding, James Hughes and HelenMargetts, eds, Challenges to Democracy , Basingstoke 2001, pp. 26–7.




racial integration schedules by closing the public schools rather thanimplementing reforms. 16 The closures could be said to have maintainedthe segregationist majority’s enjoyment of ‘Dixie’ tradition, but reducedthe net distribution of public education.

Like Wolff’s hypothetical, the Stanley Plan closures involved Pareto-inferior levelling down, but one imagines that Bull would not havefound them desirable. Negative communitarianism cannot explain whynot. Just as Wolff’s enlightened mayor has to rank the entirely differ-ent goods being simultaneously distributed in his pool transaction, aBullian adjudicator presiding over disputants citing wholly differentneeds would have to evaluate these needs relatively. The adjudicatormight have to consider the extent to which the good in dispute wouldtruly contribute to the needs cited: a rich man’s claim that ‘he could notlive’ without his pet rabbit would fare poorly against a starving man’sclaim to the rabbit as a life-sustaining foodstuff. But the adjudicatorwould face a much trickier problem of rank ordering the proposed endsfor which the goods were ‘needed’ in the rst place. After all, each ‘need’is logically dependent upon the state for which an entity or endowmentis ‘needed’—for lack of a better term, a ‘need-specifying telos’. To say

one ‘needs X’ is merely shorthand for the complete statement that one‘needs X in order to Y’. To take an example, consider the concept ofneed in Marx’s works. Reference to need runs throughout, including inCapital , where it is conceptually central to the critique. 17 Here Marx dis-tinguishes at least three different categories of ‘needs’, each dened bythe telos to which it refers: an individual’s ‘natural needs’, or the meansof biotic survival; social needs, or the means to an existence that is ‘ful-lled’ in some ethical sense; and economic needs, the means required

for the individual to serve the logic of capital.

The contrast of telic ends in the examples of the swimming pool andStanley Plan—social solidarity versus Dixie apartheid—is useful for pur-poses of demonstration. It is highly schematic, however, and the Bulliancourt would face far more difcult cases of prioritization, which thesubstantively empty concept of equality cannot address. To invoke theNietzschean theme, for example, how would Bull prioritize a physically

16 A later local version of this plan was the subject of a famous 1964 case at theUnited States Supreme Court, Grifn v. County School Board of Prince Edward County .17 See Agnes Heller, The Theory of Need in Marx , London 1974, pp. 23–40.



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weaker litigant’s demand for the forced labour of a stronger citizen?Here the court would have to weigh the relative importance of, say, theneed for bodily autonomy against the need for biotic heath. Bull providesthe negative communitarian no criterion by which to rank such needsor the telic ends to which they make reference. Without a substantivelyfuller account of something like ‘the good life’, the Bullian court musteither remain silent or impose an arbitrary judgment based on some-thing other than his extra-egalitarian theory.

Bull recognizes that the concept of equality logically requires a cate-gory in terms of which the ‘equal shares’ are to be commensurable.An equality dened without any such referential category is meaning-less, and will only be adopted as the basis of political arrangementsby irrationalists and mystics. 18 Negative communitarianism denes itsequal shares formally in reference to ‘need’. Far from a nihilist irra-tionalism or mysticism of pure equality, this is a novel form of a rightstheory of distributive justice. However, the concept of ‘need’ is similarlymeaningless unless dened in reference to another category. Avoidingthe commensurability problem in his formalist denition of ‘equal-ity’, Bull has merely displaced it to the category of ‘need’. The result

is that the account of negative community is left open-ended. Withoutan account of the good life, or the collective ends of the community, orsome other ends to which negative community would be subordinated,the concept of need remains substantively empty, and the theory lackscoherent integrity. I hope that in a future project Bull will make goodthis omission and in this way add the capstone to his engaging theoryof distributive justice.

18 Hegel’s Philosophy of Right , § 5 Remark.

kenta tsuda, an empty community, nlr 86, march-april 2014

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