Part 4 (1/2)

Locke's proviso that there be ”enough and as good left in common for others” (sect. 27) is meant to ensure that the situation of others is not worsened. (If this proviso is met is there any motivation for his further condition of nonwaste?) It is often said that this proviso once held but now no longer does. But there appears to be an argument for the conclusion that if the proviso no longer holds, then it cannot ever have held so as to yield permanent and inheritable property rights. Consider the first person Z Z for whom there is not enough and as good left to appropriate. The last person Y to appropriate left for whom there is not enough and as good left to appropriate. The last person Y to appropriate left Z Z without his previous liberty to act on an object, and so worsened Z's situation. So Y's appropriation is not allowed under Locke's proviso. Therefore the next to last person without his previous liberty to act on an object, and so worsened Z's situation. So Y's appropriation is not allowed under Locke's proviso. Therefore the next to last person X X to appropriate left to appropriate left Y Y in a worse position, for in a worse position, for X X's act ended permissible appropriation. Therefore X's appropriation wasn't permissible. But then the appropriator two from last, W W, ended permissible appropriation and so, since it worsened X X's position, W W's appropriation wasn't permissible. And so on back to the first person A A to appropriate a permanent property right. to appropriate a permanent property right.

This argument, however, proceeds too quickly. Someone may be made worse off by another's appropriation in two ways: first, by losing the opportunity to improve his situation by a particular appropriation or any one; and second, by no longer being able to use freely (without appropriation) what he previously could. A stringent stringent requirement that another not be made worse off by an appropriation would exclude the first way if nothing else counterbalances the diminution in opportunity, as well as the second. A requirement that another not be made worse off by an appropriation would exclude the first way if nothing else counterbalances the diminution in opportunity, as well as the second. A weaker weaker requirement would exclude the second way, though not the first. With the weaker requirement, we cannot zip back so quickly from requirement would exclude the second way, though not the first. With the weaker requirement, we cannot zip back so quickly from Z Z to to A, A, as in the above argument; for though person as in the above argument; for though person Z Z can no longer can no longer appropriate, appropriate, there may remain some for him to there may remain some for him to use use as before. In this case as before. In this case Y Y's appropriation would not violate the weaker Lockean condition. (With less remaining that people are at liberty to use, users might face more inconvenience, crowding, and so on; in that way the situation of others might be worsened, unless appropriation stopped far short of such a point.) It is arguable that no one legitimately can complain if the weaker provision is satisfied. However, since this is less clear than in the case of the more stringent proviso, Locke may have intended this stringent proviso by ”enough and as good” remaining, and perhaps he meant the nonwaste condition to delay the end point from which the argument zips back.

Is the situation of persons who are unable to appropriate (there being no more accessible and useful unowned objects) worsened by a system allowing appropriation and permanent property? Here enter the various familiar social considerations favoring private property: it increases the social product by putting means of production in the hands of those who can use them most efficiently (profitably); experimentation is encouraged, because with separate persons controlling resources, there is no one person or small group whom someone with a new idea must convince to try it out; private property enables people to decide on the pattern and types of risks they wish to bear, leading to specialized types of risk bearing ; private property protects future persons by leading some to hold back resources from current consumption for future markets; it provides alternate sources of employment for unpopular persons who don't have to convince any one person or small group to hire them, and so on. These considerations enter a Lockean theory to support the claim that appropriation of private property satisfies the intent behind the ”enough and as good left over” proviso, not not as a utilitarian justification of property. They enter to rebut the claim that because the proviso is violated no natural right to private property can arise by a Lockean process. The difficulty in working such an argument to show that the proviso is satisfied is in fixing the appropriate base line for comparison. Lockean appropriation makes people no worse off than they would be as a utilitarian justification of property. They enter to rebut the claim that because the proviso is violated no natural right to private property can arise by a Lockean process. The difficulty in working such an argument to show that the proviso is satisfied is in fixing the appropriate base line for comparison. Lockean appropriation makes people no worse off than they would be how? how? 12 12 This question of fixing the baseline needs more detailed investigation than we are able to give it here. It would be desirable to have an estimate of the general economic importance of original appropriation in order to see how much leeway there is for differing theories of appropriation and of the location of the baseline. Perhaps this importance can be measured by the percentage of all income that is based upon untransformed raw materials and given resources (rather than upon human actions), mainly rental income representing the unimproved value of land, and the price of raw material This question of fixing the baseline needs more detailed investigation than we are able to give it here. It would be desirable to have an estimate of the general economic importance of original appropriation in order to see how much leeway there is for differing theories of appropriation and of the location of the baseline. Perhaps this importance can be measured by the percentage of all income that is based upon untransformed raw materials and given resources (rather than upon human actions), mainly rental income representing the unimproved value of land, and the price of raw material in situ, in situ, and by the percentage of current wealth which represents such income in the past. and by the percentage of current wealth which represents such income in the past.at We should note that it is not only persons favoring private private property who need a theory of how property rights legitimately originate. Those believing in collective property, for example those believing that a group of persons living in an area jointly own the territory, or its mineral resources, also must provide a theory of how such property rights arise; they must show why the persons living there have rights to determine what is done with the land and resources there that persons living elsewhere don't have (with regard to the same land and resources). property who need a theory of how property rights legitimately originate. Those believing in collective property, for example those believing that a group of persons living in an area jointly own the territory, or its mineral resources, also must provide a theory of how such property rights arise; they must show why the persons living there have rights to determine what is done with the land and resources there that persons living elsewhere don't have (with regard to the same land and resources).

THE PROVISO.

Whether or not Locke's particular theory of appropriation can be spelled out so as to handle various difficulties, I a.s.sume that any adequate theory of justice in acquisition will contain a proviso similar to the weaker of the ones we have attributed to Locke. A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened. It is important to specify this this particular mode of worsening the situation of others, for the proviso does not encompa.s.s other modes. It does not include the worsening due to more limited opportunities to appropriate (the first way above, corresponding to the more stringent condition), and it does not include how I ”worsen” a seller's position if I appropriate materials to make some of what he is selling, and then enter into compet.i.tion with him. Someone whose appropriation otherwise would violate the proviso still may appropriate provided he compensates the others so that their situation is not thereby worsened; unless he does compensate these others, his appropriation will violate the proviso of the principle of justice in acquisition and will be an illegitimate one. particular mode of worsening the situation of others, for the proviso does not encompa.s.s other modes. It does not include the worsening due to more limited opportunities to appropriate (the first way above, corresponding to the more stringent condition), and it does not include how I ”worsen” a seller's position if I appropriate materials to make some of what he is selling, and then enter into compet.i.tion with him. Someone whose appropriation otherwise would violate the proviso still may appropriate provided he compensates the others so that their situation is not thereby worsened; unless he does compensate these others, his appropriation will violate the proviso of the principle of justice in acquisition and will be an illegitimate one.au A theory of appropriation incorporating this Lockean proviso will handle correctly the cases (objections to the theory lacking the proviso) where someone appropriates the total supply of something necessary for life. A theory of appropriation incorporating this Lockean proviso will handle correctly the cases (objections to the theory lacking the proviso) where someone appropriates the total supply of something necessary for life.av A theory which includes this proviso in its principle of justice in acquisition must also contain a more complex principle of justice in transfer. Some reflection of the proviso about appropriation constrains later actions. If my appropriating all of a certain substance violates the Lockean proviso, then so does my appropriating some and purchasing all the rest from others who obtained it without otherwise violating the Lockean proviso. If the proviso excludes someone's appropriating all the drinkable water in the world, it also excludes his purchasing it all. (More weakly, and messily, it may exclude his charging certain prices for some of his supply.) This proviso (almost?) never will come into effect; the more someone acquires of a scarce substance which others want, the higher the price of the rest will go, and the more difficult it will become for him to acquire it all. But still, we can imagine, at least, that something like this occurs: someone makes simultaneous secret bids to the separate owners of a substance, each of whom sells a.s.suming he can easily purchase more from the other owners; or some natural catastrophe destroys all of the supply of something except that in one person's possession. The total supply could not be permissibly appropriated by one person at the beginning. His later acquisition of it all does not show that the original appropriation violated the proviso (even by a reverse argument similar to the one above that tried to zip back from Z Z to to A A). Rather, it is the combination of the original appropriation plus plus all the later transfers and actions that violates the Lockean proviso. all the later transfers and actions that violates the Lockean proviso.

Each owner's t.i.tle to his holding includes the historical shadow of the Lockean proviso on appropriation. This excludes his transferring it into an agglomeration that does violate the Lockean proviso and excludes his using it in a way, in coordination with others or independently of them, so as to violate the proviso by making the situation of others worse than their baseline situation. Once it is known that someone's owners.h.i.+p runs afoul of the Lockean proviso, there are stringent limits on what he may do with (what it is difficult any longer unreservedly to call) ”his property.” Thus a person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate circ.u.mstance, admittedly no fault of his, brings into operation the Lockean proviso and limits his property rights.aw Similarly, an owner's property right in the only island in an area does not allow him to order a castaway from a s.h.i.+pwreck off his island as a trespa.s.ser, for this would violate the Lockean proviso. Similarly, an owner's property right in the only island in an area does not allow him to order a castaway from a s.h.i.+pwreck off his island as a trespa.s.ser, for this would violate the Lockean proviso.

Notice that the theory does not say that owners do have these rights, but that the rights are overridden to avoid some catastrophe. (Overridden rights do not disappear; they leave a trace of a sort absent in the cases under discussion.)13 There is no such external (and There is no such external (and ad hoc? ad hoc?) overriding. Considerations internal to the theory of property itself, to its theory of acquisition and appropriation, provide the means for handling such cases. The results, however, may be coextensive with some condition about catastrophe, since the baseline for comparison is so low as compared to the productiveness of a society with private appropriation that the question of the Lockean proviso being violated arises only in the case of catastrophe (or a desert-island situation).

The fact that someone owns the total supply of something necessary for others to stay alive does not not entail that his (or anyone's) appropriation of anything left some people (immediately or later) in a situation worse than the baseline one. A medical researcher who synthesizes a new substance that effectively treats a certain disease and who refuses to sell except on his terms does not worsen the situation of others by depriving them of whatever he has appropriated. The others easily can possess the same materials he appropriated; the researcher's appropriation or purchase of chemicals didn't make those chemicals scarce in a way so as to violate the Lockean proviso. Nor would someone else's purchasing the total supply of the synthesized substance from the medical researcher. The fact that the medical researcher uses easily available chemicals to synthesize the drug no more violates the Lockean proviso than does the fact that the only surgeon able to perform a particular operation eats easily obtainable food in order to stay alive and to have the energy to work. This shows that the Lockean proviso is not an ”end-state principle”; it focuses on a particular way that appropriative actions affect others, and not on the structure of the situation that results. entail that his (or anyone's) appropriation of anything left some people (immediately or later) in a situation worse than the baseline one. A medical researcher who synthesizes a new substance that effectively treats a certain disease and who refuses to sell except on his terms does not worsen the situation of others by depriving them of whatever he has appropriated. The others easily can possess the same materials he appropriated; the researcher's appropriation or purchase of chemicals didn't make those chemicals scarce in a way so as to violate the Lockean proviso. Nor would someone else's purchasing the total supply of the synthesized substance from the medical researcher. The fact that the medical researcher uses easily available chemicals to synthesize the drug no more violates the Lockean proviso than does the fact that the only surgeon able to perform a particular operation eats easily obtainable food in order to stay alive and to have the energy to work. This shows that the Lockean proviso is not an ”end-state principle”; it focuses on a particular way that appropriative actions affect others, and not on the structure of the situation that results.14 Intermediate between someone who takes all of the public supply and someone who makes the total supply out of easily obtainable substances is someone who appropriates the total supply of something in a way that does not deprive the others of it. For example, someone finds a new substance in an out-of-the-way place. He discovers that it effectively treats a certain disease and appropriates the total supply. He does not worsen the situation of others; if he did not stumble upon the substance no one else would have, and the others would remain without it. However, as time pa.s.ses, the likelihood increases that others would have come across the substance; upon this fact might be based a limit to his property right in the substance so that others are not below their baseline position; for example, its bequest might be limited. The theme of someone worsening another's situation by depriving him of something he otherwise would possess may also illuminate the example of patents. An inventor's patent does not deprive others of an object which would not exist if not for the inventor. Yet patents would have this effect on others who independently invent the object. Therefore, these independent inventors, upon whom the burden of proving independent discovery may rest, should not be excluded from utilizing their own invention as they wish (including selling it to others). Furthermore, a known inventor drastically lessens the chances of actual independent invention. For persons who know of an invention usually will not try to reinvent it, and the notion of independent discovery here would be murky at best. Yet we may a.s.sume that in the absence of the original invention, sometime later someone else would have come up with it. This suggests placing a time limit on patents, as a rough rule of thumb to approximate how long it would have taken, in the absence of knowledge of the invention, for independent discovery.

I believe that the free operation of a market system will not actually run afoul of the Lockean proviso. (Recall that crucial to our story in Part I of how a protective agency becomes dominant and a de facto de facto monopoly is the fact that it wields force in situations of conflict, and is not merely in compet.i.tion, with other agencies. A similar tale cannot be told about other businesses.) If this is correct, the proviso will not play a very important role in the activities of protective agencies and will not provide a significant opportunity for future state action. Indeed, were it not for the effects of previous monopoly is the fact that it wields force in situations of conflict, and is not merely in compet.i.tion, with other agencies. A similar tale cannot be told about other businesses.) If this is correct, the proviso will not play a very important role in the activities of protective agencies and will not provide a significant opportunity for future state action. Indeed, were it not for the effects of previous illegitimate illegitimate state action, people would not think the possibility of the proviso's being violated as of more interest than any other logical possibility. (Here I make an empirical historical claim; as does someone who disagrees with this.) This completes our indication of the complication in the ent.i.tlement theory introduced by the Lockean proviso. state action, people would not think the possibility of the proviso's being violated as of more interest than any other logical possibility. (Here I make an empirical historical claim; as does someone who disagrees with this.) This completes our indication of the complication in the ent.i.tlement theory introduced by the Lockean proviso.

SECTION II.

RAWLS' THEORY We can bring our discussion of distributive justice into sharper focus by considering in some detail John Rawls' recent contribution to the subject. A Theory of Justice Theory of Justice 15 15 is a powerful, deep, subtle, wide-ranging, systematic work in political and moral philosophy which has not seen its like since the writings of John Stuart Mill, if then. It is a fountain of illuminating ideas, integrated together into a lovely whole. Political philosophers now must either work within Rawls' theory or explain why not. The considerations and distinctions we have developed are illuminated by, and help illuminate, Rawls' masterful presentation of an alternative conception. Even those who remain unconvinced after wrestling with Rawls' systematic vision will learn much from closely studying it. I do not speak only of the Millian sharpening of one's views in combating (what one takes to be) error. It is impossible to read Rawls' book without incorporating much, perhaps trans.m.u.ted, into one's own deepened view. And it is impossible to finish his book without a new and inspiring vision of what a moral theory may attempt to do and unite; of how is a powerful, deep, subtle, wide-ranging, systematic work in political and moral philosophy which has not seen its like since the writings of John Stuart Mill, if then. It is a fountain of illuminating ideas, integrated together into a lovely whole. Political philosophers now must either work within Rawls' theory or explain why not. The considerations and distinctions we have developed are illuminated by, and help illuminate, Rawls' masterful presentation of an alternative conception. Even those who remain unconvinced after wrestling with Rawls' systematic vision will learn much from closely studying it. I do not speak only of the Millian sharpening of one's views in combating (what one takes to be) error. It is impossible to read Rawls' book without incorporating much, perhaps trans.m.u.ted, into one's own deepened view. And it is impossible to finish his book without a new and inspiring vision of what a moral theory may attempt to do and unite; of how beautiful beautiful a whole theory can be. I permit myself to concentrate here on disagreements with Rawls only because I am confident that my readers will have discovered for themselves its many virtues. a whole theory can be. I permit myself to concentrate here on disagreements with Rawls only because I am confident that my readers will have discovered for themselves its many virtues.

SOCIAL COOPERATION.

I shall begin by considering the role of the principles of justice. Let us a.s.sume, to fix ideas, that a society is a more or less self-sufficient a.s.sociation of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them. Suppose further that these rules specify a system of cooperation designed to advance the good of those taking part in it. Then, although a society is a cooperative venture for mutual advantage, it is typically marked by a conflict as well as by an ident.i.ty of interests. There is an ident.i.ty of interests since social cooperation makes possible a better life for all than any would have if each were to live solely by his own efforts. There is a conflict of interests since persons are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share. A set of principles is required for choosing among the various social arrangements which determine this division of advantages and for underwriting an agreement on the proper distributive shares. These principles are the principles of social justice: they provide a way of a.s.signing rights and duties in the basic inst.i.tutions of society and they define the appropriate distribution of the benefits and burdens of social cooperation.16

Let us imagine n individuals who do not cooperate together and who each live solely by their own efforts. Each person i i receives a payoff, return, income, and so forth, receives a payoff, return, income, and so forth, S St; the sum total of what each individual gets acting separately is the sum total of what each individual gets acting separately is [image]

By cooperating together they can obtain a larger sum total T. The problem of distributive social justice, according to Rawls, is how these benefits of cooperation are to be distributed or allocated. This problem might be conceived of in two ways: how is the total T to be allocated? Or, how is the incremental amount due to social cooperation, that is the benefits of social cooperation T-S, to be allocated? The latter formulation a.s.sumes that each individual i receives from the subtotal S of T, T, his share his share S St. The two statements of the problem differ. When combined with the noncooperative distribution of S (each i getting Si), a ”fair-looking” distribution of T-S under the second version may not yield a ”fair-looking” distribution of T (the first version). Alternatively, a fair-looking distribution of T T may give a particular individual i less than his share may give a particular individual i less than his share S St. (The constraint T Ti S Si on the answer to the first formulation of the problem, where T, is the share in T of the on the answer to the first formulation of the problem, where T, is the share in T of the i ith individual, would exclude this possibility.) Rawls, without distinguis.h.i.+ng these two formulations of the problem, writes as though his concern is the first one, that is, how the total sum individual, would exclude this possibility.) Rawls, without distinguis.h.i.+ng these two formulations of the problem, writes as though his concern is the first one, that is, how the total sum T T is to be distributed. One might claim, to support a focus on the first issue, that due to the enormous benefits of social cooperation, the noncooperative shares S, are so small in comparison to any cooperative ones is to be distributed. One might claim, to support a focus on the first issue, that due to the enormous benefits of social cooperation, the noncooperative shares S, are so small in comparison to any cooperative ones T, T, that they may be ignored in setting up the problem of social justice. Though we should note that this certainly is not how people entering into cooperation with one another would agree to conceive of the problem of dividing up cooperation's benefits. that they may be ignored in setting up the problem of social justice. Though we should note that this certainly is not how people entering into cooperation with one another would agree to conceive of the problem of dividing up cooperation's benefits.

Why does social cooperation create the problem of distributive justice? Would there be no problem of justice and no need for a theory of justice, if there was no social cooperation at all, if each person got his share solely by his own efforts? If we suppose, as Rawls seems to, that this situation does not not raise questions of distributive justice, then in virtue of what facts about social cooperation do these questions of justice emerge? What is it about social cooperation that gives rise to issues of justice? It cannot be said that there will be conflicting claims only where there is social cooperation ; that individuals who produce independently and (initially) fend for themselves will not make claims of justice on each other. If there were ten Robinson Crusoes, each working alone for two years on separate islands, who discovered each other and the facts of their different allotments by radio communication via transmitters left twenty years earlier, could they not make claims on each other, supposing it were possible to transfer goods from one island to the next? raise questions of distributive justice, then in virtue of what facts about social cooperation do these questions of justice emerge? What is it about social cooperation that gives rise to issues of justice? It cannot be said that there will be conflicting claims only where there is social cooperation ; that individuals who produce independently and (initially) fend for themselves will not make claims of justice on each other. If there were ten Robinson Crusoes, each working alone for two years on separate islands, who discovered each other and the facts of their different allotments by radio communication via transmitters left twenty years earlier, could they not make claims on each other, supposing it were possible to transfer goods from one island to the next?17 Wouldn't the one with least make a claim on ground of need, or on the ground that his island was naturally poorest, or on the ground that he was naturally least capable of fending for himself? Mightn't he say that justice demanded he be given some more by the others, claiming it unfair that he should receive so much less and perhaps be dest.i.tute, perhaps starving? He might go on to say that the different individual noncooperative shares stem from differential natural endowments, which are not deserved, and that the task of justice is to rectify these arbitrary facts and inequities. Rather than its being the case that no one Wouldn't the one with least make a claim on ground of need, or on the ground that his island was naturally poorest, or on the ground that he was naturally least capable of fending for himself? Mightn't he say that justice demanded he be given some more by the others, claiming it unfair that he should receive so much less and perhaps be dest.i.tute, perhaps starving? He might go on to say that the different individual noncooperative shares stem from differential natural endowments, which are not deserved, and that the task of justice is to rectify these arbitrary facts and inequities. Rather than its being the case that no one will will make such claims in the situation lacking social cooperation, perhaps the point is that such claims clearly would be without merit. Why would they clearly be without merit? In the social noncooperation situation, it might be said, each individual deserves what he gets unaided by his own efforts; or rather, no one else can make a claim make such claims in the situation lacking social cooperation, perhaps the point is that such claims clearly would be without merit. Why would they clearly be without merit? In the social noncooperation situation, it might be said, each individual deserves what he gets unaided by his own efforts; or rather, no one else can make a claim of justice of justice against this holding. It is pellucidly clear in this situation who is ent.i.tled to what, so no theory of justice is needed. On this view social cooperation introduces a muddying of the waters that makes it unclear or indeterminate who is ent.i.tled to what. Rather than saying that no theory of justice applies to this noncooperative case, (wouldn't it be unjust if someone stole another's products in the noncooperative situation?), I would say that it is a clear case of application of the correct theory of justice: the ent.i.tlement theory. against this holding. It is pellucidly clear in this situation who is ent.i.tled to what, so no theory of justice is needed. On this view social cooperation introduces a muddying of the waters that makes it unclear or indeterminate who is ent.i.tled to what. Rather than saying that no theory of justice applies to this noncooperative case, (wouldn't it be unjust if someone stole another's products in the noncooperative situation?), I would say that it is a clear case of application of the correct theory of justice: the ent.i.tlement theory.