Not all radishes are Red…is code for Not all radicals are Leftists!

 For well over a century, the Left has generally been conceded to have morality, justice, and “idealism” on its side; the Conservative opposition to the Left has largely been confined to the “impracticality” of its ideals. A common view, for example, is that socialism is splendid “in theory,” but that it cannot “work” in practical life. What the Conservatives failed to see is that while short-run gains can indeed be made by appealing to the impracticality of radical departures from the status quo, that by conceding the ethical and the“ideal” to the Left they were doomed to long-run defeat. For if one side is granted ethics and the “ideal” from the start, then that side will be able to effect gradual but sure changes in its own direction; and as these changes accumulate, the stigma of “impracticality” becomes less and less directly relevant.

—Murray N. Rothbard in Egalitarianism as a Revolt Against Nature

While you are reading this blog, you should begin to formulate your own answers to two of the main questions which this work poses: first, under what circumstances can the use of force in human relationships be justified? And second, what is the proper role of government? Note the use of the words justified and proper.  Both of them relate to the way things “ought” to be. This is the realm of what political philosophers call “norms” or “normative behavior”; ordinary people call it morality. The grist of this work will be how various commonly accepted misconceptions (the “conventional wisdom”) have distorted the moral positions which underlie our political decisions.

Most of us understand morality to be a set of rules or principles which one accepts as governing one’s behavior, and, in particular, one’s behavior toward others. There would also be little dispute, I suspect, that some portion of this morality is personal and applies only to the individual, and can vary from one person to the next, and that some other fraction consists of rules, principles, and institutions which are intended to govern society as a whole, by which I mean that each and every individual is expected to adhere to this set of rules, once adopted. In the first instance, one might include personal decisions of a religious or personal conduct nature, e.g. should one eat meat, or should one abstain from sexual activity under certain circumstances, etc.; the list of such personal morality issues is large indeed. There exists another moral realm, however, which is our core subject matter, and that is the set of rules and institutional arrangements which are intended to apply equally to everyone in society: these would include, of course, proscriptions against murder, mayhem, fraud, extortion, and theft which I call crimes, together with assorted other behavioral proscriptions and/or imperatives which are considered serious enough to deserve legislative treatment. It is with this second, and, I believe considerably smaller, realm that political philosophy and, in particular, discussions of justice and the related concept of fairness, are concerned. While for personal morality, it is between us and the bedpost whether we adhere to our own rules, for the second realm, the crucial questions to be answered concern enforcement of the rules. The locus of enforcement is, of course, government, and the means is coercion, in one form or another.

In the second realm there is again a bifurcation: first, we have a body of law to deal with crimes, which I define as forms of aggression, i.e. the use of force, violence, threats, or deception to achieve one’s ends, and second, we have a body of law which deals with everything else. While it is the case that many people do not object to calling any violation of a law a crime, I refuse to do so; I would merely call it illegal. Because crimes involve aggression against persons or property, it is not difficult to enlist people in defining crimes as immoral and, consequently, deserving of the legal use of force to prevent and/or punish. It is in the subset of things which are illegal but not crimes that one must be morally clear about whether the use of force is appropriate, or indeed, even acceptable.

While there are an almost unlimited number of possible “moral” issues which this special subset of illegality can be made to cover, the most important, from the standpoint of each individual vis-a-vis his government are matters of justice, excluding, however, the previously discussed criminal justice realm, sometimes also called procedural justice. At this point I am mostly speaking of the desire of individuals and groups within society to enforce certain norms of behavior which they believe will benefit society, and which they believe are necessary for a just society. Chief among these norms is “social justice”, or “economic justice”, or more descriptively, “distributive justice”; they all point to the same concept, the notion that society must have rules for determining who gets what.

This brings us to our first instance of a misconception masquerading as a reasonable and widely held proposition. Conventional Wisdom Re: Justice and Fairness: A society can only be considered just if its societal arrangements result in an equal distribution of income and wealth, goods and services, and opportunities,  or if not equal, then arrangements that result in minimal inequality of these, consistent with the collective welfare of the society.

Consider the following brief ( and totally typical) discussion regarding the concept:

Distributive justice is concerned with the fair allocation of resources among members of a community. Fair allocation typically takes into account the total amount of goods to be distributed, the distributing procedure, and the pattern of distribution that results.
Because societies have a limited amount of wealth and resources, a question arises as to how those benefits ought to be distributed. The common answer is that public assets should be distributed in a reasonable manner so that each individual receives a “fair share”. But this leaves open the question of what constitutes a “fair share”.[1]

Or perhaps this one:

The basic thought behind my talk is this: when political philosophers discuss social justice, they almost always think about the distributive principle or principles that define justice. What constitutes a fair distribution of rights, resources and opportunities? Is it an equal distribution, in which case an equal distribution of what, precisely – resources, opportunities, welfare etc? This question has caused much ink to be spilled. Or is it a distribution that gives each person what they deserve, or what they need? Or a distribution that gives everyone an adequate minimum of whatever it is that matters, or one that raises the minimum to the highest possible level? There are more candidate principles of justice than there are for a Conservative party leadership election… [2]

Please notice that both of these discussions share the common idea that justice equates to fairness, i.e. that these concepts are either essentially equivalent, or perhaps that one is wholly contained in the other. Those who do not specifically equate distributive justice with fairness often equate it with equality, which in turn is identified with an outcome considered to be fair. Still others link justice with that which is “due” to one, or alternatively, that which is deserved. But isn’t not giving someone his due or what is deserved tantamount to unfairness? Isn’t it also unjust? If yes, then the discussion once again revolves around justice as fairness.

Most discussions like those cited above take the idea that justice is based on fairness as a given, and then go on to discuss how justice principles and institutions can be made to be fair. This is what I call the “argument from assertion”: one simply takes the premise in question to be an axiom  for all subsequent discussion. This, unfortunately, is true of many of the arguments made by statists [please see my Methodology page] and their sympathizers: they begin with an assertion that they consider self-evident, or “intuitively obvious”, etc. —I contend that there is no room in our discussions about vital issues like justice or fairness for this kind of sloppy thinking. Because the resulting moral position inevitably leads to “societal arrangements” that involve the use of force, there is an overwhelming obligation, it seems to me, to give reasons and to make arguments.

In dealing with justice and fairness, one must define terms. First let’s look at the concept of ‘fair’ and/or ‘fairness’. Leaving aside the usage that is related to aesthetics ( “fair weather”, a “fair lass”) and the notion that it describes something that is less than good, as in the spectrum “good-fair-poor”, we begin to approach a notion of fairness in that “the term fair is employed for the most part…to express approval between a consequence and the cause to which it is imputed.” Examples of this would be: (1) jobs that are demanding pay more than jobs which are not, (2) all the runners in a foot-race start from the same position, i.e. no gets a head start, (3) an accused person may not be punished without an opportunity to present a defense. The consequences in these examples are a fair wage, a fair race, and a fair trial. A more colloquial set of fairness examples would include:

“A fair statement”- one that is even-handed, taking all sides or points of view into account.

“Fair Play” – action that does not involve one party taking advantage of others.

“A fair deal” – a transaction in which neither party got the better of the other.

“Fair shares for all” – in the absence of any reasons to the contrary, the presumption for many people is that a fair share is an equal share.( Much more about this one as we go forward.)

The above examples illustrate quite a range of interpretations of the concepts of “fair” and “fairness”. Additionally, one may say that fairness involves “treating like cases alike”, which includes making discriminations about what makes them alike.

Now let’s examine the concepts of “just” and “justice”. There is a definition that I like: “The theory of justice is the theory of what society may do ‘in the way of compulsion and control’, as Mill puts it. To say that a person’s action is unjust is to say that those actions are of a kind that society should, or at least may, coercively intervene to prevent or punish, that is, to override the individual’s own preferences in that instance.”[3]

If one is concerned about criminal matters, certainly the perpetration of a crime ( as I have defined it, i.e. a form of aggression ) would qualify as unjust by the above definition, but basically it would appear to have little or nothing to do with aspects of fairness. That the victim of a crime did not “deserve” it, or that it was not his due, or that it was unfair seems not to apply, except to the extent that all people should be protected from all forms of aggression at all times.

So justice has its rules, which are in turn based on principles of justice, as will be seen shortly.

The above suggests that we have the situation that, at times, some things are fair but not just, and some things are just but not fair. The principles of justice must take this into account. As an example of the latter, consider the biblical parable of the vineyard workers[4]: some workers, hired for a penny a day at the outset, work all day; some others, approached throughout the day and told only that they will by “duly paid”, work only a few hours. At day’s end everyone gets the same penny, regardless of time worked. The resulting grousing by those initially hired about the manner of payment is met with the admonishment that the first group was under a specific contract, while the pay for the others was a product of the owner’s grace. Clearly, the manner of payment was unfair, but it was not unjust.

As an example of the former, consider the principle expressed by the rule “first come, first served”. Suppose that a soup kitchen for the homeless has a finite amount of food on a certain occasion, and they have limited the seating to whatever their dining hall will hold before doling out the servings. The tables are filled in the order of arrival, and the tables with those coming first are served first. In the instant case, there turns out not to be quite enough to go around, with the result that a woman with three children, having come dead last, should not get served, while many able-bodied young men would be able to eat. Someone in charge intervenes, noticing the woman and her kids, and moving them up in the priority before serving. Four young men at the first table are turned away. In this instance fairness trumps justice, for the principle here is a justice principle, and was established in the manner of a convention and not through any notions about fairness.

Which brings us to a discussion about conventions. Most of what is called the common law is the result, not of specific rules handed down at discrete intervals by certain personages (e.g. monarchs and rulers) over time, but rather of concepts for handling social problems which arose spontaneously over a long period and gained gradual acceptance until such time that the informal rule graduated into a law.[5] Most conventions are supported by the populace at large as much as by specific parties to which they  may apply because it is perceived that they provide protection and resolution of disputes to which anyone may be subject at some future time. It may even be said that such conventions, like property and contract, are “antecedent to government.” Moreover, conventions are largely independent of fairness notions, with only the occasional case where the fair outcome and the outcome dictated by a justice convention are identical. It should also be noted that the social order is determined largely by conventions of one sort or another, as opposed to bargaining amongst various parties—conventions are adhered to without anybody necessarily agreeing with anybody else, but simply deciding to follow the convention as they understand it, and because it has an empirical history of providing good solutions.

Justice As Fairness

Although discussions of distributive justice more often than not rely on the mere unsupported assertion that fairness should be the standard by which societal arrangements should be judged, there are a few formal, even academic, attempts to argue for fairness as a standard. The most well-known of these is the famous 1971 book by Harvard professor John Rawls: A Theory of Justice. The theory embodied in the book has become known simply as “Justice as Fairness”, after the title of an individual essay by Rawls which pre-dates the book. A huge volume of both criticism and support for this theory has been written, and most modern supporters of the statist persuasion have adopted it in whole or in part. For that reason, it is worth examining the main concepts and their implications in some detail.

It is said that Rawls devised his theory as an improvement on the distributive justice principles, if such there be, of Utilitarianism, the philosophy that relies on one main concept, namely that the moral value of societal arrangements is based whether or not they maximize happiness (or welfare, or ‘utilities’) across the entire society. This idea is also expressed by the maxim “the greatest good for the greatest number”. Utilitarianism is vulnerable to criticism, according to Rawls and many others, because it ignores or fails to deal with certain problems. The nature of these problems concerns the collective focus of the Utilitarians—if the algebraic sum of all utilities experienced by individuals is at a maximum, the principal (and only) criterion for Utilitarian justice is met. This permits individuals ( who are, after all, part of the collective) to enjoy a high level of gains or suffer a high level of losses of utility even as the society viewed as a whole is experiencing a good average amount of utility. More specifically, Rawls and others are concerned about the existence or evolution of arrangements that are patently exploitative of certain individuals, which are allowed to persist because they are thought to contribute to the maximization of utility or welfare overall. One such institution is slavery; there are certainly moral objections to slavery, but since the Utilitarian has only one moral principle, relating to maximizing utility, such objections can be dismissed as irrelevant under their theory. Rawls himself expresses this as follows:

The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time. The correct distribution in either case is that which yields the maximum fulfillment. Society must allocate its means of satisfaction whatever these are, rights and duties, opportunities and privileges, and various forms of wealth, so as to achieve this maximum if it can….Thus there is no reason in principle why the greater gains of some should not compensate for the lesser losses of others or more importantly, why the violation of the liberty of a few might not be made right by the greater good shared by many….For just as it is rational for one man to maximize the fulfillment of his system of desires, it is right for a society to maximize the net balance of satisfaction taken over all its members.[6]

The notion of “the violation of the liberty of a few might not be made right by the greater good shared by many…” is illustrative of the fundamental objection that many critics of Utilitarianism make. A provocative moral dilemma known as The Trolley Problem, formulated by Philippa Foot, is a generalization of the Utilitarian principle in action, to wit:

A trolley is running out of control down a track. In its path are five people who have been tied to the track by a mad philosopher. Fortunately, you could flip a switch, which will lead the trolley down a different track to safety. Unfortunately, there is a single person tied to that track. Should you flip the switch or do nothing?

The answer for strict Utilitarians, is, of course, to kill one to save five, giving the maximum overall utility. A similar made-up dilemma involves a more likely real-life situation with possible future ramifications relating to “health care policy”:

A brilliant transplant surgeon has five patients, each in need of a different organ, each of whom will die without that organ. Unfortunately, there are no organs available to perform any of these five transplant operations. A healthy young traveler, just passing through the city the doctor works in, comes in for a routine checkup. In the course of doing the checkup, the doctor discovers that his organs are compatible with all five of his dying patients. Suppose further that if the young man were to disappear, no one would suspect the doctor.

What should be done? Should one be sacrificed for the sake of the five? Three guesses as to the Utilitarian choice.[7]

So it could be said that Rawls has sought to modify the Utilitarian principle in such a way that inequalities ( in the things that have utility) for individuals are permitted as long as certain restrictions are observed.

The philosophical school to which Rawls belongs is Contractarian, that is, it deals with developing principles of justice based on some sort of social contract. Other important  figures of this persuasion are Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau (1712 – 1778).

All three of these thinkers set out frame their ideas about justice based on the notion that people in the State of Nature  would agree to surrender certain rights to act on their own behalf to some higher authority in exchange for protection of their life, liberty and property by the authority in question. Hobbes described five “circumstances of justice”, all of which obtained in the State of Nature:

(1) Human Vulnerability: we are all vulnerable to attack by others at some stage of our lives.

(2) Approximate Equality: No one is so strong as to be immune from attack.

(3) Limited Altruism: altruism is intermittent and unreliable.

(4) Limited Resources: resource scarcity creates inevitable conflicts between people and reasons for people to initiate attacks on others.

(5) Limited Understanding and Strength of Will: people will succumb to temptation to pursue what they construe to be their own best interests at the expense of others in the absence of some agency which can detect and punish such transgressions.

So, it was Hobbes’ assertion that rational persons would therefore be willing to forbear the use of violence, fraud and theft on the assumption that others would do the same. They would therefore be willing to form a pact with one another to continue in this forbearance. The rub is, however, that some few would subscribe to the pact, yet when the opportunity arose, attempt to gain an advantage by violating it, i.e. by “cheating”. The remedy for this is the creation of the state as the enforcer of rules. The essence of the social contract then is that it is a kind of bargain—the people will subordinate themselves to the state, but only in exchange for its protections.

The State of Nature envisioned by Hobbes was somewhat lawless and brutal, with everyone at everyone else’s throat, and so he was willing to accept almost any kind of authority as the enforcer, including monarchs and other types of absolute rulers. Another, perhaps even better known Contractarian, was John Locke, whose social contract was based on the concept of natural rights. Locke had a different and less stark view of the State of Nature:

According to Locke, the State of Nature, the natural condition of mankind, is a state of perfect and complete liberty to conduct one’s life as one best sees fit, free from the interference of others. This does not mean, however, that it is a state of license: one is not free to do anything at all one pleases, or even anything that one judges to be in one’s interest. The State of Nature, although a state wherein there is no civil authority or government to punish people for transgressions against laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral. Persons are assumed to be equal to one another in such a state, and therefore equally capable of discovering and being bound by the Law of Nature. The Law of Nature, which is in Locke’s view the basis of all morality, and given to us by God, commands that we not harm others with regards to their “life, health, liberty, or possessions”. Because we all belong equally to God, and because we cannot take away that which is rightfully His, we are prohibited from harming one another. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference, and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.[8]

What most social contract theorists have in common is that regardless of how the state of nature is described, it nevertheless is necessary to introduce some entity, call it the state or government, that exists primarily to make it unattractive for the inevitable minority of those who would say they accepted the concept of forbearance, accepted the pact, but yet refuse to honor it when the opportunity to renege presents itself. The state exists to provide for  consequences or sanctions if the agreed-upon rules are not followed. It has been suggested that the type of bargain represented by the social contract is similar to that which is implied by a thought experiment known as the Prisoner’s Dilemma.[9]  In short, this problem, an artifact of modern game theory, is constructed to show that, even where it would appear to be to everyone’s advantage, it is difficult to consistently get people to co-operate. When the scenario of the Prisoner’s Dilemma is augmented by adding punishment as an incentive to co-operate, the results with respect to compliance are greatly improved. Thus, enters the state into the equation.

So, we have the evolution of a state-like entity from the propensity to co-operate as set forth by the various early Social Contract theorists. The resulting state, which some have called the “minimal state” is dedicated to the protection of life, liberty, and property from those who would “cheat” on the established rules of conduct ( no violence, threats, or fraud). Even though it is obvious that the Social Contract probably never existed in any specific form, nor if it was, did all those affected agree to be bound by it, and certainly, later generations cannot be considered to be bound by to something to which they never explicitly agreed. It is a purely artificial device, meant to suggest the way in which people might have adopted a pact between themselves and the incipient state.

A central question of this treatise is, if most people accept the concept of forbearance implied by most versions of the Social Contract, then to what extent should the existence of the state go beyond the rudimentary protections of the minimal state and be used as the agent to enforce a whole panoply of rules, most of which have little or nothing to do with protection of the individual against various crimes or violations of rights? We are surrendering our right to personally counter aggression against us in exchange for protection against that aggression. Should we also agree to the state’s use of the same level of force against those who do not agree with a set of principles about who is to get what, i.e. to enforce certain notions of social, or economic, or distributive justice?

For egalitarians, utilitarians, and those like John Rawls, the answer would appear to be a resounding yes! For Rawls, the Social Contract includes, indeed is principally constituted by, the setting up societal institutions to facilitate justice as he understands it.

As I have already noted, most discussions of distributive justice jump immediately to the details of how to implement a mostly egalitarian distribution of goods, without even any attempt at arguing as to why such patterned distributions should be mandated. For those who feel uncomfortable with the argument by assertion, Rawls is the gold standard for justification of their plan.

Rawls has attracted the interest of intellectuals who support this brand of distributive justice because of his use of a novel device, a way of imagining how people might have arrived at what he considers the correct principles of justice as fairness. The device is called the Original Position, which some have called a highly abstracted version of the State of Nature.

People in the Original Position are assumed to be motivated by rational self-interest, but have the unusual characteristic of only having partial self-knowledge, the particular circumstances of age, sex, race, talents and abilities, etc. are concealed from the bargainers by what Rawls calls the Veil of Ignorance. This scenario is required to guarantee a lack of bias on each person’s part—it is said to put everyone on the same footing, this being necessary for justice to proceed out of fairness. Others have described this situation as follows:

In such a position, behind such a veil, everyone is in the same situation, and everyone is presumed to be equally rational. Since everyone adopts the same method for choosing the basic principles for society, everyone will occupy the same standpoint: that of the disembodied, rational, universal human. Therefore all who consider justice from the point of view of the original position would agree upon the same principles of justice generated out of such a thought experiment. Any one person would reach the same conclusion as any other person concerning the most basic principles that must regulate a just society.[10]

There are two  principles of justice which Rawls contends would be discovered by people in the Original Position operating under the Veil of Ignorance:

First Principle of Justice: …each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others (the Equal Liberty Principle).

Second Principle of Justice: Social and economic inequalities are to be arranged so that:

a) they are to be of the greatest benefit to the least-advantaged members of society (the Difference Principle);

b) offices and positions must be open to everyone under conditions of fair equality of opportunity.[11]

It is interesting to note that Rawls maintains that just these principles would be the ones thought up and selected. Not one principle, not four principles, but just these two. I may be missing something, but this seems unsupportable to my way of thinking. Here is one argument for why the Equal Liberty Principle might be chosen.

There are certain liberties or rights that everyone would want to be respected by the forms of social organization or institutions of their society…regardless of who he or she turned out to be or whatever specific interests and abilities he or she turned out to have [ and these are]  referred to collectively as civil liberties or personal liberties, [including] freedom of speech, worship and assembly, plus freedom from physical and psychological coercion, freedom of movement. Everyone, whatever his interests or desires would want the maximum of these liberties to pursue his interests; he would want this whatever else he wanted. Everyone in the OP would see this point; hence, everyone in the OP would choose to have the maximum of these liberties granted to everyone.[12]

This argument, if one could dignify it as such, is largely just an assertion that the writer thinks or feels that “everyone” would think or feel as he does about some specific set of liberties. Why? Because everyone would value liberty for himself? Perhaps, but it is the specific set of liberties or rights that are set forth which, I maintain, do not pass muster as some irreducible minimum body of rights which must be protected. They are, in fact, a subset, by and large, of those rights comprising the Bill of Rights in the U.S. Constitution, with certain important exceptions. If these are the civil liberties selected by people in the OP, why is it necessary to operate from behind the Veil of Ignorance? Is not a maximum of liberty valuable even to those with full self-knowledge? Moreover, without half trying, one could come up with any number of rights or liberties which could be included under the same justification of being wanted regardless of what else was wanted. For example:

(1) The right of free association;

(2) The right to possess the means to physically protect oneself against aggression; also,the right to possess the means to resist the state when it exceeds its constitutional powers.

(3) The right to determine the final disposition of one’s physical body at death (i.e. not to be compelled to be an involuntary organ donor). [Recall the above discussion re: Utilitarianism and The Transplant Problem.]

(4) Various other self-ownership rights with respect to one’s own body, in particular decisions about what to ingest, including alcohol, psychoactive substances, and even types of food ( animal vs. vegetable protein, etc.); rights to privacy in one’s activities may be included in this category.

(5) Economic Rights. A close reading of Rawls reveals that the “basic liberties” envisioned by him in the First Principle do not include property rights beyond the simple possession of personal property—ownership of real property and capital items ( property used in the production of goods) are most emphatically not included as basic liberties; neither is the right to bequeath property to one’s heirs. Some of the above property rights may be allowed ( I would say tolerated), but they would not have the same level of protection as the “basic” rights.

With the possible exception of economic rights in (5) above, none of the additional rights or liberties mentioned above would, I submit, be influenced by having or not having knowledge of one’s own station in life, one’s talents and abilities, one’s family situation, etc. So, I would suggest that one need only look to the “distributive” part of distributive justice to discover why they are not included—despite the superficial appearance of an orientation toward liberty and personal freedom, the Rawlsian Liberal-Egalitarian institutions are only one step removed from the collectivist Utilitarian principles of justice previously mentioned. The economic arrangements implied by these institutions do not co-exist easily with individuals who can band together in groups, who have the means to resist a police state, and are the exclusive agents in making decisions concerning their own bodies and are free from constant surveillance. The existence of all these liberties makes it too difficult for the state to realize its august goals. Most importantly, the entire notion of property and ownership as fundamental must be ruled out as much as possible. The best one can hope for in the world according to statists is that private property is optional.

The world of Rawlsian distributive justice is a top-down command-and-control type of society. One admirer describes it thus:

The Basic Structure of Society

Rawls has persuasively shown that social justice is of crucial importance to social life and that it should inform constitutions, laws, policies, legal processes, etc. In fact, according to him, the primary subject of justice is the basic structure of society. His principle of social justice justifies, and is justified by, liberal democracy, a regulated market economy and the liberal-egalitarian welfare state. He states that for translating his Difference Principle into practice, the government should have four branches, viz., (1) an allocation branch “to keep the price system workably competitive and to prevent the formation of unreasonable market power”; (2) a stabilization branch to bring about “reasonably full employment” and, jointly with the allocation branch, to maintain the efficiency of the market economy; (3) a transfer branch to attend to “the claims of need and an appropriate standard of life”; and (4) a distribution branch “to preserve an appropriate justice in distributive shares” by taxation measures and adjustments in property-rights.” [ Emphasis added.][13]

One should note that the popularity of Rawls’s ideas among statists is at least partially because its tolerance for inequality under some circumstances permits it philosophically to co-exist with a limited version of capitalism, i.e. that private ownership of the means of production is permitted. The Difference Principle states “All social primary goods – liberty and opportunity, income and wealth and the bases of self-respect – are to be distributed equally, unless an unequal distribution of any or all of these goods is to the advantage of the least favoured.” Under such a restriction the higher than average compensation of a highly trained or skilled person ( including managers) can be justified on the basis of the higher output of goods and services that may result. Statists of all stripes have long since realized that full-blown socialism is a failed system, and they need the production which a “regulated market economy” can provide. So the state must allow limited entrepreneurship and private capital investment, while exercising as much control as possible over the owners and managers of enterprise.

With respect to economic rights, I can see no reason why people in the OP would not want, nay, insist on the right to own more than just personal property. Yes, the Veil of Ignorance keeps them from knowing whether they have any existing property interests to protect, but all persons, it seems to me, would wish to be able accumulate property over time and to have the ultimate disposition and control over it, whether or not they had any property in the beginning. If there are to be any entrepreneurs in this brave new world, how could they function without the full protection of property rights over the capital equipment needed for production? Rawls, and all those allied with him, are ignoring the most fundamental economic fact of life, namely that all economic progress stems from the gradual accumulation of the surplus that results when production exceeds consumption in a given period of time. The name of this surplus is anathema to statists—it is called profit. Economic progress and rising standards of living are impossible without profits.

I submit to you that there is nothing about the OP or the Veil of Ignorance that should prevent the people there from knowing about and acting on economic fundamentals and insisting on rights to protect the accumulation of wealth. This is because all people stand to benefit from a thriving economy, whether or not some are more adept at accumulation than others. There is, however, something in the Second Principle of Justice that does actively militate against property rights and that is the notion that economic inequalities are to be arranged so that “they are to be of the greatest benefit to the least-advantaged members of society.”

As with the Equal Liberty Principle, I fail once again to see how this particular restriction on inequalities would be the unique focus of people in the OP. I can see how someone who does not know whether he is in a favored or disfavored position in life might opt for an absolutely equal distribution of goods ( i.e. strict egalitarianism) because that would tend to guarantee that he would be no worse off than anyone else. But to add the bit about allowing inequalities under certain circumstances suggests to me, once again, that Rawls is being a realist about economics and knows that free markets and capitalism produce the greatest overall stock of benefits to be divided up, and that some concession from the strict egalitarian regime is therefore justified. Perhaps Rawls is saying that people in the OP also perceive this inasmuch as he declares them to be rational, self-interested  beings.

The type of society that would likely result from Rawls’s Two Principles of Justice is a heavily regulated mixed economy.

Before moving on from the issue of property rights in Rawls’s conception of justice, one needs to consider that, if individuals are only to have a strongly defensible property right in personal property, then it seems that one of two situations would obtain: (1) real property and property used for the production of goods ( capital property) would belong to the state, and the state would have a collective right to said property, or (2) in a mixed economy, individuals and associations of individuals ( i.e. corporations) would be allowed to own land and the means of production, but the ownership would be a qualified one, where a great amount of control over the use and disposition of that property would be exercised by the state through taxation, regulation, and other legislatively generated means. In case you didn’t recognize it, when carried to its logical conclusions theoretically, the first option is called socialism, the second option is very similar to fascism. Both are philosophically forms of collectivism.

In the case of option (1), one needs to deal with the problem of why, if the basic rights of  individuals do not include full property rights, then is it not incumbent upon this theory of justice which excludes individuals to explain why and how the collective has acquired the right to the subject property? No such justification is forthcoming from either Rawls himself or the followers of Rawls, save perhaps such tired nostrums as “We’re all in this together”, or the idea, which has great moral force for collectivists, that we absolutely must “share and share alike”. These are not well-articulated arguments, they are simply unjustified re-statements of some particular parties’ moral intuitions.

As a matter of fact, a close reading of Rawls’s Theory, reveals at best a very equivocal attitude toward capitalism and the free market. He admits that “private property in the means of production” is a “major social institution”, yet we have already seen that Rawls does not include this as a basic liberty, only the right to personal possessions. Quentin P. Taylor is moved to ask “ If such rights are not basic to liberty, what is their relation to liberty, if any? Is there any right to property beyond personal holdings? If so, what is the basis for this right, and how may it be justified? If no such right exists, does this lack imply that justice requires the public ownership of the means of production?”[14] In my opinion, Rawls does not provide satisfactory answers, even by implication, to these questions.

Rawls also refuses to endorse either socialism (a liberal socialist democracy) or a free market capitalistic system, implying that either one can be made to work for justice’s sake by suitable modifications that do not do violence to his justice principles. His statement that “the economy [he envisions] is roughly a free market system, although the means of production may or may not be privately owned” displays what I regard as a profound ignorance of economics, at least the kind of economics which relies on a priori reasoning for its conclusions. There is such an animal as “market socialism”[15], and it really sounds as if Rawls is drinking this Kool-Aid. When capital is not owned privately and as such cannot be priced, capitalism as we know it cannot be practiced; more about this later.

Aside from the refusal to endorse a specific type of economic system or organization, perhaps the greatest criticism of Rawls that Taylor asserts is that his Theory does not qualify as comprehensive because of his failure to deal with property relations. Taylor notes as follows:

Reference to the history of political thought provides a second standard for assessing the status of Rawls’s political philosophy. Those familiar with the canon of political classics (and with the history of political theory generally) know that questions of property relations have figured importantly (and sometimes prominently)in the works of nearly all the major political philosophers. Plato, Aristotle, Cicero, Aquinas, Machiavelli, Hobbes, Locke, Montesquieu, Hume, Rousseau, Publius, Kant, Burke, Hegel, Marx, and Mill had something significant (and often something definite) to say about property in one form or another. As Howard Williams, a Kant scholar, writes: “That the concept of property has been a central concern of political philosophy from classical times onward is not surprising in view of the fact that the way in which wealth and goods are held determines a great deal of the structure and make-up of a community. Property relations go to the root of any social system.”[16] [Empasis added]

Please see Justice and Fairness – Part Two for a continuation of this discussion.

 

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Justice as Fairness is not the only game in town. There are other ways to view distributive justice; there are other answers to the question as to who gets what. I now review some alternative approaches to justice. Before we can proceed, I feel obliged, because of contemporary problems with terminology, to discuss and define what constitutes for my purposes the concept of “rights”. In popular discourse, there are two generally accepted interpretations of a right: one is a concept that defines a domain within which persons ought to be at liberty or free to do as they please free of interference by others; this is the so-called ‘negative right’ or ‘liberty right’. The rights recognized in the U.S. Constitution’s first ten amendments (Bill of Rights) are of this type–right to free speech, bear arms, etc. The other major interpretation of a right involves the assertion of a “valid” or “justified” claim. The first type is constrained by the need to describe a domain and actions to be protected, while the latter type, I submit, is practically open-ended, allowing for most anything at all to be made into a justified claim, and in fact this is by far the more common type of right discussed by modern philosophers. Such claims also go under the term “positive rights”, “welfare rights”, or with respect to certain government programs, “entitlements”. These latter rights include such things as: the right to an education, the right to a ‘living wage’, the right to unemployment benefits, the right to income security at retirement, etc. Suffice to say, the type of rights that I will be discussing with respect to the Classical Liberal concept of justice focuses primarily, if not exclusively, on liberty rights. One question I feel needs to be answered from the outset is “where do rights come from?” Some assert that rights are granted by government. I reject that notion, and instead assert that explicitly defined rights are simply a recognition of conditions which must exist for human beings to survive and prosper, (or to function in a political context, as with the right to free speech and expression) and, moreover that their recognition is calculated to solve the numerous social problems which can arise when people come into conflict over the use of scarce resources. ( Note that such conflict is characteristic of what I have called the State of Nature.) I reject the notion of government granting rights because it is the antithesis of the recognition concept just elucidated—what the government gives, it can take away just as easily. Granted rights are arbitrary rights, bearing no relationship to human nature. I also reject the notion of granting rights because I believe that, in addition to, and augmented by, the various legal rights implemented in a system of justice, there is an underlying set of natural or background rights upon which both justice and its resulting rule of law rely. Another issue which is fundamental with respect to rights of the type I am discussing is that of conflicting rights. For each right in a set of rights to be valid, it is necessary that it not conflict with some other right in that set. Such a set of rights is said, according to the eminent rights theorist Hillel Steiner, to be compossible. According to Steiner:

The elementary particles of justice are rights…. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same way as architectural precepts must be informed by the properties of the construction materials they orchestrate…. Any justice principle that delivers a set of rights yielding contradictory judgements about the permissibility of a particular action either is unrealizable or ( what comes to the same thing) must be modified to be realizable. Particular applications of such a principle would drive us to say “Leave it to the judge / legislator / heaven to sort this one out.” And they, after all, seem sufficiently busy already.”[1]

What I mean by a conflict between rights is that by respecting one right I am at risk of violating, or actually violate another right. For example, one may claim that has a right to freely express one’s opinion; another may claim that one has a right not to be discriminated against. If the opinion expressed in the first instance involves discriminating against one person or thing as opposed to another, there is clearly a potential for conflict between these alleged rights. I maintain, that, as described above, one of them has got to go, or be severely modified, if they are to be part of a compossible set. I would also like to suggest at this point that all acceptable conceptions of justice should utilize only compossible sets of rights as the basis for legal precepts and the resulting rule of law. Basing justice on respect for rights is first and foremost a practical matter—it is designed to prevent serious and pervasive social problems that arise from human action: whenever human beings act, they are risk of interfering with the actions of other human beings. This is because most problematic actions involve scarce physical resources and their use and disposition. The purpose of justice is to provide principles and rules to allow humans to avoid in advance these social problems, what Randy Barnett calls the problems of knowledge, interest, and power in his comprehensive and rigorous exposition of the classical liberal conception of justice The Structure of Liberty.[2] Barnett summarizes his formulation of this concept as follows:

Justice is respect for rights of individuals and associations. (1) The right of several property[3] specifies a right to acquire, possess, use, and dispose of scarce physical resources—including their own bodies. Resources may be used in any way that does not physically interfere with other persons’ use and enjoyment of their resources. While most property rights are freely alienable, the right to one’s person is inalienable. (2) The right of first possession specifies that property rights to unowned resources are acquired by being first to establish control over them and to stake a claim. (3) The right of freedom of contract specifies that the rightholder’s consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights —both during one’s life, and, by using a “will”, upon one’s death. A manifestation of intent is ordinarily necessary unless one party somehow has access to the other’s subjective intent. (4) Violating these rights by force or fraud is unjust. (5) The right of restitution requires that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice, and such compensation may be collected by force, if necessary. (6) The right of self-defense permits the use of force against those who threaten to violate the rights of another. Normal self-defense is permissible when the commission of a rights violation is imminent. Extended self-defense is permissible when a person has communicated, by prior rights violations or some other prior conduct proven to a high degree of certainty, [to be] a threat to violate rights in the future. Self-defense should be proportionate to the risk posed by the threat.

Clearly, this formulation was intended to address the entire range of justice issues, not just the issue of “distributive” justice which is the focus of the Utilitarian and Rawlsian conceptions; I shall focus on the first three of the rights enumerated above: the right of several property, the right of first possession, and the right of freedom of contract. These comprise what Barnett ( and many other rights theorists) have called a set of ‘natural’ or ‘background’ rights. As I understand it, these fundamental rights are natural because they reflect the nature of both the world and the human beings living in it. Humans are self-interested and legitimately so, and most human interests revolve around some sort of property, so the rules of justice must be derived from principles which specify rights and obligations we have with respect to property. Regarding human nature, the seventeenth century natural rights theorist Samuel Pufendorf had this to say:

[I]n investigating the condition of man we have assigned the first place to self-love, not because one should under all circumstances prefer only himself before all others or measure everything by his own advantage, distinguishing this from the interests of others, and setting forth as his highest goal, but because man is so framed that he thinks of his own advantage before the welfare of others for the reason that it is his nature to think of his own life before the lives of others. [Emphasis added.][4]

The problem of knowledge mentioned above becomes a social problem when individuals (or associations) are (a) not able to utilize their personal and local knowledge of how to use resources, or (b) do not have adequate advance knowledge of what justice requires, or (c) those who are responsible for translating the abstractions inherent in a set of rights into legal precepts and rules do not have sufficient local and/or personal knowledge. The rights in Barnett’s formulation solve the problem of knowledge in (a) by giving jurisdiction over physical resources to those who are in the best position to use their own personal and/or local information; this is in opposition to having all property owned and controlled by a central authority, e.g. the state. These rights also deal with the problem in (b) by forming the basis from which a set of legal precepts and rules can be developed which will tell people in advance what the requirements of justice are. This assumes that most people are interested in adhering to its requirements, if only they can be made explicit— there is, of course, some subset of us who are intent on ignoring any such requirements. The notion of jurisdiction as used here is similar, but not identical to that used with respect to the administration of justice. Here I mean that we recognize the need for individuals (or associations) to have defined domains in which they are free to act on their own personal and/or local knowledge. Another way of saying this is that individuals (or associations) are in the best position to make decisions about resource use. This brings us to the allied concept of an “order of actions”, or the creation of a social order, a regime which brings orderliness to social interaction. Societies can be ordered in either a centralized or decentralized manner; examples of centralized ordering include families, companies, and the military, in which persons at the top are charged with ordering and controlling lower levels of the hierarchy. On the other hand, a decentralized order features an atomistic situation in which decision making occurs at the very lowest level, usually that of the individual. In societies where the order is centralized, attempts are made to control actions with elaborate sets of rules, even though the personal and local knowledge needed to develop the rules is nowhere available to the rule-makers. In societies that respect decentralized jurisdiction over resources, the rules evolve over time in a natural and self-correcting way. Readers familiar with F.A. Hayek will immediately recognize the parallel between a centralized order and a decentralized order and Hayek’s “made” order versus his concept of a “spontaneous” order. The most well-known spontaneous order is the free market economy. The problem of interest is broken down by Barnett into three parts: the problem of partiality, the problem of incentive, and the problem of compliance. As noted above, humans have a natural predilection to act in their own self-interest, which sometimes can lead to conflicts and to unjust actions. The problem of partiality occurs when parties who are empowered to make judgements that affect others favor ( or are “partial” to) their own interests or to those who are close to them at the expense of the others involved. The decentralized jurisdiction concept inherent in the rights of several property, freedom of contract, etc. restricts the harm that partiality can cause to a narrow jurisdiction; centralized orders make mistaken or unjust decisions which can apply to as much of society as its entirety. The problem of incentive occurs when individuals ( or associations ) are required to make choices regarding resources, which choices incur costs to the decider, and cannot be passed on to others. If justice and the rule of law do not provide incentives for incurring these costs, decisions to develop or invest will not be made. The right of first possession, for instance, provides that the costs to develop unowned property will not be in jeopardy from a subsequent claim to the same property by another. Also, according to Barnett, “the principle of freedom from contract helps insure that changes in control of the resource reflect the interests of the original rights-holder. Only if the rights-holder consents to a transfer will it be recognized as valid.” Similarly, the right of freedom to contract “provides positive incentives for beneficial transactions by enforcing agreements motivated by the prospect of receiving a benefit or ’profit’ ”. Additionally, the right of restitution (see item 5 in the formulation of justice), which compels compensation for unjust (i.e. non-consensual) takings (of property) supports the incentives needed to make decisions subject to the costs mentioned above. The problem of compliance is the need to close the gap between the conduct that justice and the rule of law require and what people perceive to be in their interest to do. Some people, especially those with very high time preferences[5], will frequently perceive a gap between their needs and the requirements of justice. When, for either pecuniary or psychological gain, these people act unjustly, we consider them criminals. The existence of items 5 and 6 in Barnett’s formulation of justice provides a means to deal with them. Finally, the problem of power. Since the liberal concept of justice includes the use of force to deal with rights violations, there is a problem of enforcement error—the inevitable cost to the occasional innocent who is the subject of an erroneous enforcement. “Because the use of power imposes costs on the innocent, and rights legitimate the use of power, we need to limit the number and kind of rights we recognize to those which address pervasive social problems that cannot be dealt with by any other means.” The preceding discussion of ideas from The Structure of Liberty does not adequately reflect the rigorous arguments and elegant construction found in that book. Barnett makes a strong case for a conception of justice which involves moral constraints yet is highly practical in that it conforms to human nature with its concept of natural or background rights. One of the most important take-home observations by Barnett is that the validity of the rights in his formulation, especially the property rights found in items 1-3, is greatly reinforced by the fact that they address, and have the potential to prevent, multiple pervasive social problems.

Nozick—Bringing Justice Back Down to Earth

An alternate view of the Liberal Conception of Justice can be gleaned from the award-winning 1974 book , Anarchy, State and Utopia by Harvard philosopher Robert Nozick. It shares some of the same conceptual ground as Barnett, but with a much stronger emphasis on the moral basis for its strongly libertarian point of view. Nozick, like most political theorists, including those mentioned here, deals first with the state of nature issues and endeavors to show how the concept of the state might have evolved from a simpler structure of private protective agencies, whose only charge was to provide protection for the rights of those in the state of nature. The model for the state of nature used by Nozick is from one of the prime originators of natural rights theory, John Locke. Locke’s state of nature is neither the nasty and brutish one of Hobbes or the idyllic one of Rousseau, but rather a place where natural rights are recognized by many, there is reciprocity and co-operation, but there are virtually no institutions for resolving the inevitable conflicts between the various actors, particularly those conflicts arising over the use and control of physical resources. Men are free to act in whatever way their conscience ( or lack thereof ) dictates; the flip side is that they may look to no else to defend themselves against whoever may violate their rights. In a series of steps that resemble the “invisible hand” type of process mentioned earlier, Nozick speculates as to how what he calls the “minimal state” might have evolved from the pure state of nature, with various associations offering to provide protective services to various sets of clients in a given geographical area. Also, Nozick dares to raise the question of whether or not the anarchic situation in the state of nature is not better than the minimal state inasmuch as even this minimal state, due to its monopoly on the use of force and its mission to provide universal protective services for its citizens, might be construed by some ( e.g. individualist anarchists[6]) as redistributive, in that some will wind up paying more than others for the same level of protection. In answer, Nozick shows how what might look redistributive is actually devoid of such moral objections (Yes, Virginia, there really are some people who object to redistribution on moral grounds!!) . Based on a prior discussion of the need to compensate those whose rights are violated, Nozick has constructed an elegant explanation of how, in a state of nature, independent actors who did not choose to sign up with the dominant protective agency could, instead of being accused of “free riding”, are actually the subjects of just compensation:

If the protective agency deems the independents’ procedures for enforcing their own rights insufficiently reliable or fair when applied to its clients, it will prohibit the independents from such self-help enforcement. The grounds for this prohibition are that self-help enforcement imposes risks of danger on its clients. Since the prohibition makes it impossible for the independents credibly to threaten to punish clients who violate their rights, it makes them unable to protect themselves form harm and seriously disadvantages the independents in their daily activities and life. Yet it is perfectly possible that the independents’ activities including self-help enforcement could proceed without anyone’s rights being violated…. According to our principle of compensation…,in these circumstances those persons promulgating and benefiting from the prohibition must compensate those disadvantaged by it. The clients of the protective agency, then, must compensate the independents for the disadvantages imposed upon them by being prohibited self-help enforcement of their own rights against the agency’s clients. Undoubtedly, the least expensive way to compensate the independents would be to supply them with protective services to cover those situations of conflict with the paying customers of the protective agency. This will be less expensive than leaving them unprotected against violations of their rights… and then attempting to pay them afterwards to cover their losses through having (and being in a position in which they were exposed to having) their rights violated.[7]

Whew, that was a mouthful. So, the bottom line of this argument is that the minimal state, in the form of a monopoly protective agency in a region, is not, after all, redistributive, since the provision of universal protective services including the independents ( i.e. those who don’t sign up) is seen in the light of the principle of compensation, not as a free ride. As you have seen, Nozick’s book is not exactly a light read, but it is thought-provoking, especially for those whose only exposure to political philosophy has been to statist-oriented authors. Where Barnett endeavors to create a structure that can be translated into legal precepts and thence to the rule of law, Nozick deals primarily with the aforementioned justification for a compact, virtually single-purpose state, and with the notion of ‘distributive justice’, which others, mostly having a statist orientation, call ‘social justice’, or ‘economic justice’. Nevertheless, the principles espoused by Nozick seem to be clearly related to the property rights in Barnett’s formulation. The three major topics in what Nozick calls his “entitlement theory of justice” are (1) original acquisition of holdings, (2) transfer of holdings, and (3) rectification of justice in holdings. Definitional notes: First, the use of the word entitlement here has absolutely no relation to its use in reference to what we have called ‘welfare rights’; rather it is to put emphasis on principles to justify why one might be entitled to a particular holding. Second, Nozick uses the word ‘holding’ in much the same way as Barnett uses ‘several property’. Nozick’s entitlement theory of justice consists entirely of principles, which would then be elaborated by specific implementations; he makes no pretense to a complete theory. Nozick asserts as follows:

If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings.

1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.

2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.

3. No one is entitled to a holding except by (repeated) applications of 1 and 2. The complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution.[8]

When we examine the formulation of Barnett, we see essentially the same conceptual framework, but the issues have been dealt with explicitly. For example, the right of first possession is generated from the principle of acquisition of holdings in that it states that the rule for how entitlement is to be recognized uses the concept of “first in time is first in right”. One must identify the property and then stake a claim to it. So persons who do that have a first right of possession over a previously unowned property.[9] We should stop right here and proclaim that the justification given by Barnett saying, in effect, that the criterion for deciding on a claim over unowned property between someone who first found it and staked a claim and someone else who later comes across it is not necessarily the only criterion that could have been used. Alternatively, one could have used the rule that the property should go to the one who needs it the most, or some other rule. There is nothing in the principle of justice in acquisition which would necessarily prevent this from being the case, and the “inductive definition” given above would still be valid. A distribution made according to those rules would be considered just. The problem with many of the possible options is that the rule used may violate moral side constraints about how people may be treated, violate other rights, or create still other unintended consequences. Likewise the Nozickian principle of justice in transfer is implemented in Barnett’s right to freedom of contract, which specifies that all transfers of property (holdings) must be consensual to be valid, i.e. freedom from contract specifies that the right-holder’s consent is necessary to make the transfer, and freedom to contract specifies that consent is sufficient.[10] Moreover, the fundamental right of several ( i.e private) property, “the right to acquire, possess, use and dispose of scarce physical resources—including their own bodies”[11] follows immediately from the set of distributive justice principles developed by Nozick. Additionally, the principle of rectification of injustice in holdings spawns the right of restitution in the Barnett formulation. If the two principles of distributive justice given above are violated with respect to ( the entire history giving rise to) any given holding, then the holding is subject to Nozick’s principle of rectification, or literally, “making it right”. Barnett’s implementation is:

The right of restitution specifies that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice.[12]

Before leaving the discussion based on Anarchy, State and Utopia, we need to discuss one more extremely relevant issue of political philosophy, and that is the notion of moral side constraints. This is the idea that, when considering a theory of justice and the concomitant societal arrangements to be made, any constraints upon actions done to realize one’s goal cannot simply be incorporated by reference into the goal itself. For example, if there is to be a societal arrangement that provides that every person should receive monetary income at such a level as to insure certain existential conditions ( re: food, shelter, health, etc.) are satisfied, subject to the constraint of minimizing violations of certain liberties, e.g. property rights, this would be an example of building the constraint into the goal itself. If, on the other hand, one would propose a societal arrangement such that every person should receive a minimum monetary income as described above, provided only that in doing so, no violation of anyone’s liberties or rights should be allowed at all, that would be an example of a moral side constraint. As Nozick explains:

Side constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent.[13] [Emphasis added.]

Additionally, “The moral constraints on what we may do, I claim, reflect the fact of our separate existences . They reflect the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good. There is no justified sacrifice of some of us for others. This root idea, namely, that there are different individuals with separate lives and so no one may be sacrificed for others, underlies the existence of moral side constraints, but it also, I believe, leads to a libertarian side constraint that prohibits aggression against another.”[14] In addition to the matter of a lack of attention to side constraints, which I feel is a deal killer for any one who is not a thorough-going Consequentialist[15], Nozick has a multitude of other well-argued objections to the theory as propounded by Rawls ( and which would apply to a whole host of Utilitarian, egalitarian, Marxist, or socialist theories about “social justice” as well). One could classify his objections as follows: (1) Issues relating to a lack of context, to a narrow focus on the subject of distribution; (2) The fact that the distributions which result from Rawlsian principles are of the patterned, or “end-state” or “end-result” type; (3) Questions about Rawls’s attitude toward what he calls the “morally arbitrary” characteristics of individuals which might be used to explain and/or justify the existence of inequalities in distribution; (4) Issues about legitimacy of the holdings of individuals.

Context, or the Lack of It

Arguments in favor of egalitarian types of distributions are frequently, if not exclusively, isolated from any context about how the initial set of conditions ( e.g. goods to be distributed) came to exist. To reiterate an earlier quote from The Notion of Fair Distribution:

Distributive justice is concerned with the fair allocation of resources among members of a community. Fair allocation typically takes into account the total amount of goods to be distributed, the distributing procedure, and the pattern of distribution that results.

It seems that the only problem that exists here is how to make the distributions. It is assumed that they need to be made, and that some unspecified agent will be in charge. Nozick has it right when he says:

Hearing the term “distribution,” most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things. Into this process of distributing shares some error may have crept. So it is an open question, at least, whether we should do again what has already been done once, though poorly. However, we are not in the position of children who have been given portions of pie by someone who now makes last minute adjustments to rectify careless cutting. There is no central distribution, no person or group entitled to control all the resources, jointly deciding how they are to be doled out. What each person gets, he gets from others who give to him in exchange for something, or as a gift. In a free society, diverse persons control different resources and new holdings arise out of the voluntary exchanges and actions of persons. There is no more a distributing or a distribution of shares than there is a distributing of mates in a society in which persons choose whom to marry…[16]

Another failure in the realm of context with respect to this view of distributive justice is that it ignores anything historical about how the holdings of various persons came about. For Rawls and his ilk, these questions are totally irrelevant, and for Nozick they are crucial:

To think that the task of a theory of distributive justice is to fill in the blank in “to each according to his _________  ” is  to be predisposed to search for a pattern, and the separate treatment of “ from each accord to his ________”  treats production and distribution as two separate and independent issues. On an entitlement view these are not two separate questions. Whoever makes something, having bought or contracted for all other held resources used in the process…, is entitled to it. The situation is not one of something’s getting made, and there being an open question of who is to get it. Things come into the world already attached to people having entitlements over them. From the point of view of the historical entitlement conception of justice in holdings, those who start afresh to complete “to each according to his _______” treat objects as if they appeared from nowhere, out of nothing….[17]

I strongly suggest that anyone who treats objects as if they appeared from nowhere, and out of nothing is not thoroughly grounded in reality, and furthermore, that we should not put any stock whatsoever in his arguments, moral or otherwise.

Patterned or End-Result Distributions

The type of distributions which justice as fairness dictates are called patterned distributions. They are calculated by some rule to achieve some particular end-result, i.e. at some particular point in time a certain distribution is to exist, the characteristics of which are defined in advance. For example, absolutely equal shares is a patterned distribution. Distribution of goods based on hours worked up to a specified maximum ( hours or goods) is another.

There are numerous problems, both moral and practical, with the concept of patterned distributions. Allowing for the moment that one may wish to divorce production from distribution, the most fundamental problem with distributions designed to achieve a particular end-result is that the implementation of such distributions inevitably interferes with liberty, which Rawls has supposedly enshrined as his First Principle of justice. Supposing that one receives some distributive share in accordance with some acceptable societal arrangement under justice as fairness. If one then takes one’s share and does any of a number of different things with it other than simply using or consuming it, then this is likely to upset the desired end result. Under a patterned distribution, it is undesirable that people should give away portions of their distributions, or alternatively, save them up, convert them to some form which assists in the production of goods, the private sale of which augments one’s share over time, etc., etc. In order for the pattern to be protected, it becomes necessary to, in essence, outlaw acts of capitalism or even of gift-giving. If such things are allowed, then unless they are “rectified” by a redistribution, then things tend only to get more and more out of shape compared to the originally desired end-result. So, clearly, any kind of reasonable economic liberty must be ruled out in Rawls conception. And, in fact, it is[18].

This brings us to the necessity, in most cases, of constantly re-evaluating and re-making the distributions on an ongoing basis, a policy which, one can easily imagine, undermines any kind of market based economy[19]. An additional problem with end-result principles is that when they are instilled in the legal matrix, they give each citizen an enforceable claim to some portion of what must be construed as the social product, the sum total of goods and services as of some point in time. According to Nozick:

Whether it is done through taxation on wages or on wages over a certain amount, or through seizure of profits, or through there being a big social pot so that it’s not clear what’s coming from where and what’s going where, patterned principles of distributive justice involve appropriating the actions of other persons. Seizing the results of someone’s labor is equivalent to seizing hours from him and directing him to carry on various activities. If people force you to do certain work, or unrewarded work, for a certain period of time, they decide what you are to do and what purposes your work is to serve apart from your decisions. This process whereby they take this decision from you makes them a part-owner of you; it gives them a property right in you. Just as having such partial control and power of decision over an animal or inanimate object would be to have a property right in it. End-state and most patterned principles of distributive justice institute (partial) ownership by others of people and their actions and labor. These principles involve a shift from the classical liberals’ notion of self-ownership to a notion of (partial) property rights in other people. Considerations such as these confront end-state and other patterned conceptions of justice with the question of whether the actions necessary to achieve the selected pattern don’t themselves violate moral side constraints. Any view holding that there are moral side constraints on actions, that not all moral considerations can be built into the end states that are to be achieved, must face the possibility that some of its goals are not achievable by any morally permissible means….[20]

The more one reflects on patterning, the more difficulties and improprieties one can think of. The last one I shall focus on is the fact that the conditions of the Original Position virtually dictate that the only type of distributive justice that the bargainers will consider are patterned distributions.

If things fell from heaven like manna, and no one had any special entitlement to any portion of it, and no manna would fall unless all agreed to a particular distribution, and somehow the quantity varied depending on the distribution, then it is plausible to claim that persons placed so that they couldn’t make threats or hold out for specially large shares, would agree to [Rawls’s] difference principle rule of distribution. But is this the appropriate model for thinking about how the things people produce are to be distributed? Why think the same results should obtain for situations where there are differential entitlements as for situations where there are not? A procedure that founds principles of distributive justice on what rational persons who know nothing about themselves or their histories would agree to [the Original Position] guarantees that end-state principles of justice will be taken as fundamental….For people meeting together behind a veil of ignorance to decide who gets what, knowing nothing about any special entitlements people may have, will treat anything to be distributed as manna from heaven.[21]

So the two conceptions of distributive justice cannot be easily reconciled—one allows for historical entitlements, the other is blind to them. Rawls theory presumes that no historical theory, however constructed, can be the correct one.

Moral Arbitrariness

One of the greatest objections that Rawls and his sympathizers express is their antipathy to the individual’s natural assets, talents, and abilities insofar as these are construed to result from factors not under the person’s control, such as initial distribution of income and wealth, family situation, supposedly innate abilities, etc. because they are presumed to be “morally arbitrary”, which I believe is another way of saying “undeserved.” This why Rawls goes on at length about the need for societal institutions that guarantee access to social and political positions, and educational opportunities. On the surface, such concerns may seem worthy, and perhaps even quintessentially fair. Yet this need to nullify the results of a person’s character and ignore his accomplishments while ascribing his success to uncontrollable outside factors is indicative of an attitude that is not congruent with the theory’s supposed end results. By insisting, as Rawls does, that even the more conscientious behavior of the more advantaged individuals is itself morally arbitrary[22] is going one step too far. Nozick observes that “this line of argument can succeed in blocking the introduction of a person’s autonomous choices and actions (and their results) only by attributing everything noteworthy about the person completely to certain sorts of “external” factors. So denigrating a person’s autonomy and prime responsibility for his actions is a risky line to take for a theory that otherwise wishes to buttress the dignity and self-respect of autonomous beings….” One should never forget that final results always involve intermediate steps, and those who have native abilities may either develop them or ignore them. Those who start life with pecuniary advantages may frequently experience poverty at life’s end. Is it reasonable twenty or thirty years downstream to insist that one’s situation at that point in time is all predicated on inherited characteristics? The only reason that this kind of thinking could be tolerated is that no one (specifically the moral theorist) is looking at the individual, only at the aggregate, the collective. In fact, it is Rawls’s position that one’s talents and abilities actually belong to the collective, to wit:

We see then that the difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out….No one deserves his greater natural capacity nor merits a more favorable starting place in society. But that does not mean one should eliminate these distinctions. There is another way to deal with them. The basic structure [of society] can be arranged so that these contingencies work for the good of the least fortunate.[23] [Emphasis added.]

Having noted the above Rawlsian predilection, one should recall the previous assertion by Nozick that the ability to tax away a significant fraction of your income is tantamount to having a partial property right in you. It seems to me that the common asset idea dovetails nicely with the partial property right notion. Now I can hear some of you saying “How can you attack taxation in such a way? After all, there has to be some way to fund the government.” Let’s look at this in yet another, perhaps deeper, way. Let’s say that you find it legitimate to seize a progressively larger portion of the wages of a person who elects to work more than the minimum required hours so that he can enjoy some extra goods or services because he prefers to have these more than to have some certain number of hours of leisure time. Take then, the case of the man who elects to work only the minimum number of hours at his job because he values his hours of leisure more highly than any extra goods or services. Would it then also be legitimate to force this second man to work some extra hours (equivalent to the extra increment of wages withheld from the first man) without compensation so that the work product may be distributed to others? I maintain that those would say the first case is legitimate and the second is illegitimate are fooling themselves. It should be abundantly clear that these two cases fundamentally equivalent. Yet, I can guarantee you that most advocates of progressive taxation would be up in arms over any suggestion that the second alternative has any legitimacy at all!

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Notes for Part Two

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