# Equality in David Schmidtz’s Elements of Justice **URL:** **By** Bill Glod **Published:** November 5, 2026 --- David Schmidtz argues that justice requires equal moral and political treatment—not equal shares—because property rights, investment, production, and first possession foster freedom, cooperation, and prosperity. > **Editor’s Note** > > This essay is the third in a series on David Schmidtz’s _Elements of Justice_. Read the second essay [here](https://www.libertarianism.org/article/reciprocity-david-schmidtzs-elements-justice). The third element in [David Schmidtz](https://business.wvu.edu/faculty-and-staff/directory/profile?pid=3546)’s [_Elements of Justice_](https://www.amazon.com/dp/B001APYVU4?lv=shuf&channelId=500&plpRedirect=mhFallback), as contrasted with prior discussions of [desert](https://www.libertarianism.org/article/justice-desert-david-schmidtzs-elements-justice) and [reciprocity](https://www.libertarianism.org/article/reciprocity-david-schmidtzs-elements-justice), is the multifaceted element of _equality_. Conceptions of equality are complex in that defenses of one dimension of equality call for inequality along other dimensions. Schmidtz observes how even egalitarian views like [John Rawls](https://www.libertarianism.org/topics/rawls-john-1921-2002)’s can defend inequality of holdings: having designed an original position that sets aside _everything_ that makes people unequal, the door remains wide open for unequal shares. That is, people are allowed to possess differing amounts of income and wealth if this arrangement better protects the equality that matters most—the worth of individuals’ equal basic liberties—than other arrangements. One way to protect the sort of equality that matters most may be to allow unequal resources rather than demand equal shares. Recognition of this “may prove to be Rawls’s lasting contribution.”[1](#_edn1) An egalitarian is someone who must embrace one kind of unequal treatment as the price of securing equality of (what he or she considers) a more important kind.[2](#_edn2) Conversely, non-egalitarian theories can support some types of equality, such as the insight that we are _not_ born with inherently different natural statuses. Even the most “neoliberal” of such theories can agree that, however different we are, we’re all equal before the law. The whole point of contracts is to honor parties as morally equal, even if some parties to the contract get more stuff than others. Today we greet each other with handshakes, not prostrate ring-kissing, regardless of what economic class we’re in. That we don’t find this a mind-blowing feature of our current practices only speaks to the fact that enough history has passed for it no longer to be mind-blowing. “Our differences, when they do matter, will not matter in the sense of being a basis for hierarchical class structure.”[3](#_edn3) According to Schmidtz, “there is a deep connection between equal treatment and justice, but not between equal treatment and equal shares.”[4](#_edn4) If we all came to the world at the same time, with no prior claims, then equal shares may be the default moral position. We happen upon two apples, and I grab both and eat them without offering you one. That seems at least rude because, even if you don’t _need_ the apple, I’m still not respecting you as an equal claimant. However, in our world “we do not begin life by dividing a sack of apples that somehow, on its own, made its way to the bargaining table.” We start with goods that some people have helped produce, and others have not. Many philosophical thought experiments depict everyone as getting to the table at the same time, but it’s of central moral importance that the world is not like that.[5](#_edn5) As adults, we don’t typically confront a world where shares are manna from heaven or given to us by a benefactor. Maybe it was different when we were growing up in a family. Schmidtz observes that children often are jealous when comparing their shares to those of siblings because getting a lesser share from their parents signals that they are held in lower esteem. As a young child, I once got upset that my mom served my older sister dinner before me, and a larger amount at that. I protested it wasn’t fair because my sister had been around longer and so had eaten far more food than I’d ever received to date. I hadn’t yet grasped the concept of proportionality, nor why it mattered that my sister was running late for an appointment. Most people outgrow such egocentric distortions; alas, some purported adults don’t. Moral attitudes don’t always track well in youth, but sometimes they do. Children “are not so upset about getting less than their rich neighbor, because so long as no one is _deliberately assigning_ lesser shares, no one is sending a signal of lesser esteem.” As children grow up, however, we expect them to resent siblings less rather than to resent neighbors more. “Resenting siblings less is a sign of maturity; resenting neighbors more is not.”[6](#_edn6) Having less than your neighbor isn’t unjust because not everything that matters is a matter of justice. We might like a society where there were no billionaires, yet everyone had a good shot at becoming a millionaire. However, shouldn’t we prefer a society where there were billionaires and, _partly because of this_, the rest of us had an even better shot at becoming millionaires? Either way, preferences about distributional patterns are not principles of justice any more than are preferences about the yearly winning percentages of teams comprising one’s favorite sports league. [Elizabeth Anderson](https://lsa.umich.edu/philosophy/people/faculty/eandersn.html) contends that “the proper negative aim of egalitarian justice is not to eliminate the impact of brute luck from human affairs, but to end oppression” so that we may live together in a democratic community, as opposed to a hierarchical one. When redistribution’s purpose is to make up for bad luck, including the misfortune of being less capable than others, the result in practice is disrespect. Anderson observes then that people lay claim to the resources of egalitarian redistribution “in virtue of their inferiority to others, not in virtue of their equality to others.” _Political_ equality has no such consequence. Schmidtz notes that when women began to present themselves as having a [right to vote](https://www.archives.gov/education/lessons/woman-suffrage), “they were presenting themselves not as needy inferiors but as autonomous equals.”[7](#_edn7) Defenders of political equality can recognize that good institutions are far more important than distributions for helping us fare well. Distributions are often two-dimensional graphs, snapshots that don’t reveal longitudinal trend lines. Unlike distributions, institutions highlight the role of _agency_. Millions of people in the top income quintile today were in the bottom quintile not long ago. These people didn’t all move up by winning the lottery, getting an inheritance, or robbing others. Most got there because they offered something members of their society valued. Many also saved and made wise investments. As Robert Nozick observed, constant interventions to maintain a distributional pattern would not only interfere with liberty, they would also wreck our ability to engage in the long-term economic coordination that creates the wealth that increases well-being and reduces both suffering and some forms of inequality. Critics point to concentrations of wealth as pathological. The one percent, or the billionaire donor class, can use their money to control political decisions. This diagnosis may be correct, but their proposed solutions against wealth often aren’t: “Realistically, if power is being bought and sold, then turned against us, the solution is not to make sure no one is rich enough to buy power but instead to learn how to stop politicians from creating and selling it.” Leveling economic shares would not address the real problem because if “selling X for a dollar is bad, we go after people who sell X, not after people who have a dollar.”[8](#_edn8) Equality that matters is partly about reducing undeserved and non-reciprocal interest group political interference with what should be free exchanges. Leveling economic shares would only replace elite interest group influence with democratic interest group influence, a dynamic Aristotle anticipated in his _Politics_ when he identified oligarchy and democracy as non-ideal regimes. It might also create a new set of elites deciding who gets the dollars. Maybe the latter is less bad, maybe not; regardless, the answer to oligarchic tyranny isn’t a democratic tyranny. Both are premised on the notion that some authority should oversee a fixed pot of resources. However, isn’t it unfair that poorer people often can’t keep up with richer people? On this point, Schmidtz observes that society is not a race. In a race, people need to start on an equal footing because “a race’s purpose is to measure relative performance. By contrast, a _society_’s purpose is not to measure relative performance but to be a good place to live.”[9](#_edn9) We hear talk of “leveling the playing field” or compensating the losers at life’s lottery. But as a matter of observable fact, societies that are good places to live don’t offer fixed pots of wealth to be distributed by a central planner. What kind of society would it be if we catered to the desire of everyone to be tied with others on income or wealth scores, or to take turns being first in these matters? A sports league that tried would be rife with corruption—imagine matters extended to a polity. A good place to live rewards those who have something to offer. Consuming is vital, but it’s not a race either. Schmidtz is worth quoting at length here: > Critics of capitalism once scoffed at the cliché suburban goal of ‘keeping up with the Joneses.’ Critics now treat evidence that some group is failing to get ahead of the Joneses as a basis for deeming capitalism a failure . . . If I sought to conceal the extent to which society is mutually advantageous, I would equate ‘getting ahead’ not with increasing one’s _income_ but with increasing one’s income _share_. This change in the dialectic is embarrassing. The old critique of capitalism was thoughtful. It was right to scoff at the goal of keeping up with the Joneses. Elevating that goal to the status of a principle of justice is mindless.[10](#_edn10) ### Equality and Diminishing Marginal Utility [Diminishing marginal utility](https://www.investopedia.com/terms/l/lawofdiminishingutility.asp) of consumption (DMU) may suggest a [utilitarian](https://www.libertarianism.org/topics/utilitarianism) defense for redistribution toward greater equality. A rich person gets less utility from consuming their one millionth dollar than a poor person gets from consuming their first dollar. Maximizing utility of consumption in light of DMU calls for redistributing in a more equal direction. Poor people gain more utility from the dollars given to them than rich people lose from the equivalent dollars taken from them. Schmidtz says, “not so fast.” He leaves aside whether it’s indeed true that rich consumers always have DMU, or whether we can make interpersonal comparisons of utility. Instead, he asks us to imagine the situation of Joe Rich and Jane Poor. Rich has two ears of corn and Poor has zero. One ear of corn is sufficient for each person’s consumption, and the returns of eating a second ear diminish steeply. The egalitarian who appeals to DMU might argue that what to do is simple: promote equal shares. Rich should consume one ear of corn and give the other ear to Poor because this allows the most overall utility possible. Equality is the most efficient distribution here. However, this proposal assumes that _consumption is the only relevant activity_. What if, instead of giving the second ear to Poor, Rich plants it to produce many more ears of corn for the future? Equality aside, planting it generates a lot more utility over time than just consuming it. Defenders of redistribution confuse urgency with _importance_. Consuming or planting the second ear is far less _urgent_ a matter for Rich, but using it as a tool of production is important to him (and perhaps also to Poor) regardless of urgency. If a community lacks people with “nothing better to do with the marginal units of corn than to plant them, the community faces economic stagnation at best.”[11](#_edn11) This is because wealth grows by productive investment, not by consumption. The rich typically don’t sit on their wealth like [Scrooge McDuck](https://en.wikipedia.org/wiki/Scrooge_McDuck) hoarding a mountain of gold coins. Today’s wealthy aren’t typically [mercantilists,](https://www.libertarianism.org/topics/mercantilism) who believe the world is zero-sum and that nations should hoard gold gained from exports. They (and many of the less wealthy) invest in capital, labor, equities, and bonds that aim to produce goods and services, which tend to further increase overall wealth while averaging 7–10 percent annual returns on investor portfolios. But a society that takes Joe Rich’s second unit and gives it to Jane Poor “takes seed corn out of production and diverts it to current consumption, thereby cannibalizing itself.”[12](#_edn12) Schmidtz observes “the implications of consumption’s DMU are consistently egalitarian only in a model with no production.”[13](#_edn13) But in a world of production, the DMU of consumption only implies less reason to consume and “more reason to invest in long-range production . . . utility may instead be maximized by transferring resources to those who will use them in the most productive way.” Ignoring production for the sake of a simplified model ignores “_the_ prerequisite for meeting needs in the real world.”[14](#_edn14) ### Why We Need First Possession and Not Equal Shares Many defenses of equal shares treat goods as if they were unclaimed items on a table we all come to at the same time. But are goods on Earth, like manna, found on an _uninhabited_ planet? Or are the real goods “typically goods that have already been discovered, created, possessed, and put to use by someone else?”[15](#_edn15) We have histories, and history matters. “The point is not that the past must be respected no matter what, but that there are ways of respecting the past that enable people to have mutually respectful, mutually beneficial futures.”[16](#_edn16) Schmidtz notes that rules of [first possession](https://oll.libertyfund.org/quotes/david-hume-on-property-as-a-convention-which-gradually-emerges-from-society-1739) induce discovery. “By inducing discovery, such rules induce productive activity. Such rules also help to minimize disputes.”[17](#_edn17) Many animals (including humans) respect territorial claims as ways to reduce conflicts over scarce resources. Humans have the unique ability, not only to create wealth and thus more resources than occur in nature, but to claim territory over these resources without reliance on dominance or raw power. Claims of first possession secure “ownership even for those who are not dominant, and even for those who lack the raw power to defend their claims.”[18](#_edn18) Humans don’t need sharp teeth or claws—they need moral norms such as mutual respect for first possession. The history of civilizational progress involves the widening of this respect not just to members of one’s clan but to trading partners beyond the clan. Even today, such respect is not always granted, certainly not on a global scale. That doesn’t make it any less imperative. Schmidtz observes that, nonetheless, many egalitarian theories “continue to talk as if justice is about how to _divide_ what people contribute, rather than how to _respect_ what people contribute.” Theorists may want to avoid privileging the status quo, “but a theory needs to privilege the status quo in some ways so as to be relevant to it.” Property regimes around the world and throughout history operate according to norms of first possession, not equal shares, because in our world people arrive at different times.[19](#_edn19) When someone gets there first and is peacefully putting her discovery to use, then someone else “trying to grab a piece of the action, even if only an equal piece, is not a peaceful act.”[20](#_edn20) Newcomers would be a threat if we were to regard them as having a claim to an equal share of our holdings. “Even now in our world, people who see the world in zero-sum terms tend to despise immigrants.” But the human world needn’t be zero-sum: “a viable culture is a web of positive sum games, but a game is positive sum only if players are willing to take what they have as their starting point and carry on from there.”[21](#_edn21) Some egalitarians object that it’s arbitrary that someone gets something first—why should latecomers be punished for being born later? Again, this treats resources not only as scarce manna but manna that human activity doesn’t improve. However, in any developed country, “latecomers are better off than the first generation of appropriators.” We have unprecedented wealth today precisely because “our ancestors got here first and began the laborious process of turning society into a vast network of cooperative ventures for mutual advantage.” In the “race” to appropriate, “the chance to be a first appropriator is not the prize. The prize is prosperity, and latecomers win big, courtesy of the toil of those who got there first.”[22](#_edn22) Schmidtz concludes that “first possession may not itself be a principle of justice, but not every question is a question of what people are due.” Sometimes the question is how to resolve disputes over what people are due, but sometimes we resolve disputes “by settling who gets to make the call . . . In considering the point of justice, we have to grasp that sometimes what we mainly need to establish is who has the right of way.” He adds that we can question first possession in theory, and in theory it is easier to attack than to defend, “but we do not and cannot question it in our daily practice. We would be lost without it.”[23](#_edn23) A world of people who treat each other equally would be far superior to a disastrous world of attempting to give people equal shares. We turn next to Schmidtz’s meditations on _need_ as an element of justice. ## Endnotes [1.](#_ednref1) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 108. [2.](#_ednref2) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 110 [3.](#_ednref3) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 107 [4.](#_ednref4) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 109 [5.](#_ednref5) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 111–12 [6.](#_ednref6) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 111 [7.](#_ednref7) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 115 [8.](#_ednref8) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 117 [9.](#_ednref9) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 117 [10.](#_ednref10) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 118 [11.](#_ednref11) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 144 [12.](#_ednref12) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 145–6 [13.](#_ednref13) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 148 [14.](#_ednref14) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 149 [15.](#_ednref15) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 152 [16.](#_ednref16) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 153 [17.](#_ednref17) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 153 [18.](#_ednref18) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 154 [19.](#_ednref19) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 154 [20.](#_ednref20) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 154–5 [21.](#_ednref21) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 155 [22.](#_ednref22) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 156 [23.](#_ednref23) David Schmidtz, _The Elements of Justice_ (Cambridge University Press, 2006), p. 157