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John Stick:TURNING RAWLS INTO NOZICK AND BACK AGAIN(一).

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Copyright (c) 1987 Northwestern University Law Review
Northwestern University Law Review


SPRING, 1987


81 Nw. U.L. Rev. 363




LENGTH: 25909 words


ARTICLE: TURNING RAWLS INTO NOZICK AND BACK AGAIN.


NAME: John Stick *


BIO:


* Visiting Associate Professor of Law, University of Southern California Law Center; Associate Professor of Law, Tulane University School of Law. B.A., B.S., Michigan State University (1975); M.A. (1977), J.D. (1980), University of California at Los Angeles. I would like to thank Lawrence Alexander, John Dzienkowski, Richard Epstein, Sheldon Leader, Sanford Levinson, and Carol Rose for reading a draft and offering comments and suggestions.


SUMMARY:
... The differences in the political philosophies of John Rawls and Robert Nozick are often attributed to differences in their initial assumptions and methods of argument. ... What arguments could Nozick make for the inclusion of a theory of absolute property rights in the original position''s liberty principle? Rawls devotes much less attention to this principle than to the difference principle. ... Most important, Nozick''s principle of just acquisition contains Locke''s Proviso, which allows appropriation of previously unowned property only if "there is enough, and as good left in common for others." As Nozick restates the Proviso, "[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." ... I will concentrate, however, directly on Nozick''s explanations of the principles of acquisition and transfer as he describes how they would work in the state of nature. ... -- The Proviso, as we have seen, gives rise to compensation rights in those who are driven under the baseline by acts of appropriation or transfer. ... The baseline interpretation also has the great advantage of tying together the interpretations of the Proviso for the acquisition and transfer principles, since the acquisition Proviso also appeals to the baseline society in measuring compensation. ...


TEXT:
[*363] I. INTRODUCTION
The differences in the political philosophies of John Rawls and Robert Nozick are often attributed to differences in their initial assumptions and methods of argument. n1 Nozick himself criticizes Rawls for constructing the "original position" n2 in such a way that one cannot seriously consider Nozick''s theory. n3 Alasdair MacIntyre has stated that Rawls'' and Nozick''s theories are incommensurable. n4 In this Article I will attempt to demonstrate that Rawls and Nozick are not incommensurable, and that their disagreements are not attributable to their starting points or methodologies.
To show how Rawls and Nozick are commensurable, I will demonstrate how each can argue as convincingly for his own theory from the [*364] starting point of the other as he can from his own starting point. Accordingly, I will first elaborate the argument for Nozick''s theory of property from Rawls'' original position, and then show how in a modern industrial economy, Nozick''s version of Locke''s theory of property is best interpreted as subordinating property rights to Rawls'' two principles of justice. I will not attempt a global evaluation or a direct comparison of both theories. Instead, I will concentrate upon their theories of property rights and the distribution of wealth because it is these issues on which Rawls and Nozick most vividly conflict. Moreover, I will not try to conclusively establish which theorist is correct. I merely will show where the arguments of Rawls and Nozick meet when pressed from either''s starting point. However, my greater sympathy for Rawls will be evident, and if my analysis is convincing, Rawls'' theory can only seem more impressive.
The relationship between Rawls and Nozick is not a matter of interest for philosophers only. n5 Although the first burst of discussion that greeted their work in the early 1970s has passed, many of the present legal policy debates between liberals and conservatives over the distribution of wealth, the nature of property rights, and the proper role of government in regulating the market are strongly influenced by Nozick and Rawls. n6 Most contemporary theorists that oppose progressive taxation because it interferes with the functioning of the market rely on Nozick''s political arguments. n7 Rawls and Nozick are central to the contemporary debate over welfare rights, n8 the strength of property rights, n9 the interpretation [*365] of the takings clause, n10 and general theoretical discussions on the nature of property law. n11
The analysis in this Article has both methodological and substantive implications for the legal policy debate influenced by Rawls and Nozick. With regard to the method of argument, this Article will suggest that the choice of method does not determine the result of the argument. Thus, arguments about employing historical versus end-result principles, or whether political theories are suitably epistemologically grounded, miss the point. The political questions of redistribution of wealth and the degree of governmental control of the economy must be resolved by discussion of the political merits. Methodological issues do not give rise to a critique which can rule out serious political theories.
With regard to substance, this Article will suggest that Lockean theories of property cannot be used convincingly to oppose the redistribution of wealth or the activist state. Even Nozick''s substantive revision of Locke''s theory, in particular Nozick''s account of Locke''s Proviso, when fully explicated, leads to duties to redistribute wealth surprisingly similar to Rawls'' difference principle.
II. THE ARGUMENT FROM THE ORIGINAL POSITION FOR NOZICK''S THEORY OF PROPERTY
To evaluate Nozick''s ability to argue for his theory of property beginning at Rawls'' starting point, one must begin with a short survey of Rawls'' theory. n12 Rawls'' theory of justice is primarily concerned with evaluating the basic structure of society: how the political constitution and major social and economic institutions distribute fundamental rights, duties, and social goods. n13 Rawls advances two principles with which to [*366] evaluate whether a basic structure is just. The first principle, called the "liberty principle," states: "Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all." n14 The second principle states: "Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged . . . , and (b) attached to offices and positions open to all under conditions of fair equality of opportunity." n15 Part (a) of the second principle is called the "difference principle" and part (b) is called the "fair equality of opportunity principle." The first and second principles are lexically ordered. In other words, a society must satisfy the first principle as completely as possible before considering the second principle. n16
Rawls gives a complex group of justifications for his two principles of justice. He argues that the two principles best explain our considered judgments about what is just and unjust. n17 Elaborating a second justification, he argues that the liberty and difference principles would be chosen in the original position. n18 Third, Rawls presents his theory of justice in such a way that the theory itself is so attractive that it seems worthy of adoption for its own sake. n19 For our present purposes, Rawls'' second justification is most important, for it gives the structure in which Nozick must frame his argument for absolute property rights if he is to challenge Rawls on Rawls'' own turf.
Rawls calls the set of conditions under which the principles of justice are chosen the "original position." This ideal situation is hypothetical, not actual. It is meant to embody our considered judgments about what constitutes rational moral choice, and to exclude influences that are [*367] illegitimate because they are conducive to bias, prejudice, or excessive self-interest. n20 "The original position includes four main elements: (a) the rational motivation of the parties, (b) the veil of ignorance, (c) the formal constraints of the concept of right, and (d) the list of competing principles of justice." n21 Rawls attempts to demonstrate that given these background conditions and constraints, his two principles of justice would be the only rational collective choice.
The principles of justice are expanded into a full system of public and private law through a four-stage process. n22 The parties to the original position first adopt the two principles of justice lexically ordered, with the liberty principle taking precedence over the difference principle. Then, with the veil of ignorance partially lifted to reveal the material conditions of the society, they adopt a constitution which implements the two principles. In a third, legislative stage, statutes are adopted establishing the full system of public and private law. The fourth stage consists of the execution of the law by administrators and judges. A division of labor concerning application of the two principles forms between stages two and three. In the second stage, the liberty principle primarily guides the design of the constitution. At the legislative stage, the difference principle dictates that the long-term expectations of the disadvantaged are maximized under conditions of fair equality of opportunity. n23
Neither Nozick nor Rawls sets forth a theory of property rights in any detail. The main distinguishing feature, for the purposes of Nozick''s [*368] criticism of Rawls, is that Rawls believes that holdings of property can be taxed for purposes of redistribution, and Nozick does not. n24
One could argue for Nozick''s theory of property at two stages of Rawls'' theory: at the constitutional stage, where the principle of liberty is elaborated, or at the legislative stage, where the economic system is created in conformity with the difference principle. Nozick assumes that, for Rawls, the right to property is not fully protected by the liberty principle. Instead, the law of property is subject to the difference principle, and thus is established in the legislative phase with few constitutional protections. Accordingly, property rights are subject to claims for redistribution through taxation or other invasions by the state in the name of the disadvantaged. If there were no other point in Rawls'' theory at which the system of property rights could be determined, Nozick''s criticisms of Rawls'' methodology would have some force, because there would be no point where Nozick could frame the argument for his theory of absolute property rights. Nozick would be forced to demonstrate that Rawls was totally wrong about the type of theory that would be rationally chosen in the original position. n25
Even here Nozick is inordinately pessimistic about his ability to argue for his theory in the original position. He criticizes Rawls for constructing the original position in such a manner that only "patterned" n26 principles of justice, such as the difference principle, could be selected rather than his own theory of absolute property rights. But Nozick''s criticism is misguided: the relationship between patterned and nonpatterned theories is not one of opposition. First, Rawls discusses a scheme of property rights much like Nozick''s -- the system of natural liberty -- that could be adopted in the original position if Nozick''s arguments were sufficiently strong. Second, Nozick''s theory of absolute property rights could arise from principles of justice adopted in the original position that [*369] substituted an average utility principle n27 for the difference principle, if at the legislative stage social facts indicated that a scheme of absolute property rights was most efficient. Both of these strategies would entail modification of Rawls'' difference principle.
Nozick neglects, moreover, the possibility that in the original position, the system of property might be established in the constitutional stage of deliberations. The essence of Nozick''s scheme can be obtained if the system of property rights is made part of the first principle of equal liberties, because then the property rights Nozick champions would be lexically prior to the difference principle. Therefore, the property rights would not be subject to redistributive taxation. This Article will explore first the argument for protecting property rights by means of the first principle of justice, and then the arguments for modifying the second principle.
A. Protecting Absolute Property Rights Under the Equal Liberties Principle
What arguments could Nozick make for the inclusion of a theory of absolute property rights in the original position''s liberty principle? Rawls devotes much less attention to this principle than to the difference principle. In part one of A Theory of Justice, where Rawls gives the argument from the original position, he lists the rights encompassed by the liberty principle several times.
The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law. n28
However, Rawls never argues for these rights as a group or suggests that there would be any controversy in their adoption -- a great contrast to the care taken in delineating alternatives to the second principle of justice and elaborating arguments on its behalf. n29
Rawls discusses the liberty principle at greater length in part two of A Theory of Justice, but never specifically discusses the right to hold property. Indeed, when Rawls again lists the liberties protected by the first principle, he does not mention the right to hold property. n30 Rawls'' [*370] subsequent discussion of the economic systems compatible with the difference principle -- welfare capitalism and market socialism n31 -- suggests that for Rawls the right to hold personal property does not necessarily include the right to hold property in the means of production.
Rawls'' relative inattention to the explanation and justification of his account of the basic liberties protected by the first principle and their priority over the difference principle received prompt criticism. n32 Rawls responded with his most extended discussion on the topic in his Tanner Lecture, The Basic Liberties and Their Priority. n33 The basic liberties are set out there in more detail, and Rawls elaborates the basis for their selection and their priority. He clearly states that "the right to hold and have the exclusive use of personal property" is a basic liberty, but the right to own natural resources or the means of production is not. n34
Rawls does not give a full argument for this particular position. He gives a general account of the types of reasons that make some liberties basic, but he does not give an argument applying these reasons to the right to hold property. n35 He then gives one special, strategic argument why the question of property rights in the means of production should be handled at the third, legislative stage under the difference principle instead of in the second, constitutional stage under the liberty principle. n36 This Article first will discuss the strategic argument, and then try to reconstruct what arguments can be made in applying Rawls'' more general considerations to property.
[*371] Rawls wants to duck the question whether "justice as fairness" n37 requires a welfare-capitalist or a socialist economic system. In A Theory of Justice, he argues that either system can be consistent with justice as fairness. n38 The choice between the two systems requires empirical knowledge about the material base of the society, its traditions, and its social and political institutions, which is not known in the original position, but only at the legislative stage. n39 Therefore, the question could be appropriately resolved only under the second principle. n40 In the Tanner Lectures, Rawls states that the goal of his political theory of justice is "to resolve the impasse in the democratic tradition as to the way in which social institutions are to be arranged." n41 Since "philosophical argument alone" is unlikely to persuade either the capitalist or the socialist that the other is correct, Rawls thinks it is more "fruitful" to seek a more general basis for agreement. n42 He hopes to gain general agreement on the two principles of justice, and postpone the fundamental disagreement over property to the legislative stage where it can become an argument over facts and not over principles.
This strategic postponement of the issue of private property is not likely to be persuasive to partisans of either position. In particular, Nozick can easily argue that his defense of private property rights in the means of production is based on principles, not empirical facts about particular societies. Thus, his theory is appropriately considered in the original position. Furthermore, Nozick can argue that Rawls is wrong about this particular argument without being forced to dispute any other part of Rawls'' theory. Nozick can argue for his own theory of property from within Rawls'' larger theory of justice. Rawls'' prudential argument stands alone; because it is merely prudential, it provides no reason of principle why Rawls could not be convinced that Nozick is correct. n43
[*372] The general arguments for the priority of basic liberties are not so easily swept aside. To establish which liberties are basic, Rawls develops an account of two fundamental powers of moral personality that are necessary for citizens to participate in a just society. n44 Rawls begins by considering citizens'' involvement in schemes of social cooperation. Social cooperation for mutual benefit always involves two elements: first, a shared set of norms concerning the enterprise -- fair terms of cooperation that all participants accept; second, the private goals that each participant seeks in her wider life outside the cooperative activity. The other participants do not necessarily share these private goals. Each participant, therefore, must consider whether it is to her rational advantage to enter into the cooperative practice. Rawls calls the first element, the shared goals, the Reasonable, and the second element, the private goals, the Rational. n45
Justice as fairness treats society as a cooperative venture. n46 Participants have private goals, but have no choice but to cooperate with one another. Thus, to some extent, they must adopt shared standards and goals. This bifurcation of individual and collective goals, with each considered essential and primary in its own right, is emblematic of Rawlsian liberalism. It contrasts with communitarian theories that favor community standards over individual standards, and libertarian theories that favor individual standards and make community standards suspect and derivative. n47
To protect this dualistic scheme of social cooperation, society must be structured so that it will raise citizens who have two powers of moral personality that parallel the two elements of social cooperation. The citizens must have the capacity for a sense of right and justice, that is, "the capacity to honor fair terms of cooperation and thus to be reasonable." n48 The citizens must also have the capacity for a private conception of the good, "and thus [be] rational." n49 Possession of these two moral powers is the necessary and sufficient condition for being a full citizen of the [*373] society. n50
The basic liberties, with their priority, are to be seen as the "appropriate fair terms of cooperation on the basis of mutual respect." n51 A participant in the original position, since she does not know her own conception of the good, seeks to ensure that she will have sufficient means to pursue her conception of the good, whatever it may be. Rawls calls these means "primary goods," and they include the basic liberties, n52 as well as powers of offices and positions of responsibility, income, and wealth, and the social bases of self-respect. n53 Of all the primary goods, only basic liberties are protected by the first principle of justice; all the others are protected by the second principle. Liberties are basic and deserving of priority if they are necessary to protect the development in citizens of the two essential moral powers described above. Additionally, liberties are basic if they are necessary to regulate the basic structure of society (such as equal political liberties), or if they are "indispensable" institutional conditions for guaranteeing other basic liberties (such as the right to free speech). n54
Rawls gives some examples. Liberty of conscience is basic because it is required for the moral capacity to determine one''s conception of the good. n55 Freedoms of speech and assembly are necessary to develop and express one''s moral capacity to act according to a sense of justice. n56 The moral capacity to act according to a sense of justice also requires self-respect, and the basic liberties Rawls lists support self-respect more than alternative arrangements. n57 The political liberties must have priority in order to keep them equal, because a political system in which there is inequality of influence is unlikely to maintain just institutions. n58
According to Rawls, the right to hold and to have the exclusive use of personal property is justified because some personal property is necessary "to allow a sufficient material basis for a sense of personal independence and self-respect, both of which are essential for the development and exercise of the moral powers." n59 Rawls denies that any more extended right to property can be justified as a basic liberty.
[*374] Nozick need not take Rawls'' dismissal of a full theory of property as the last word, however. He can argue that full property rights should have priority over the difference principle for the same reasons that other basic liberties have priority.
Rawls puts clear emphasis on liberty of conscience and of the person over material concerns, but there remains some room for Nozick to argue that certain aspects of the liberty to hold property are similarly crucial to our personality and thus prior to our interest in our general level of material well-being. n60 Nozick could argue that Rawls, who mentions a limited right to hold personal property, allows for this argument and merely underestimates the extent of the necessary property rights.
Nozick can first argue that absolute property rights, even in the means of production, are necessary for self-respect. This argument follows Rawls'' argument for more limited property rights, but claims that the requirements of self-respect are greater than Rawls acknowledges. If taken as an argument that one must be able to own a factory to have self-respect, this argument may seem implausible. n61 Nozick could argue more subtly that absolute rights to use and dispose of property yield much more self-respect than limited rights. To have total control in a limited sphere can lead to more responsibility than to have a wider sphere of influence but more limited control. Constant interference by others is a constant affront to our dignity -- and constant interference by the state is worst of all, since its relationship to us is necessarily paternalistic, given the differences in power and status between any citizen and the state. Moreover, Nozick can point to the difficulties of drawing lines and claim that if interference with private property rights is allowed at all, it is likely to be very extensive. n62 This is one of the points of his infamous Wilt Chamberlain hypothetical. n63
An argument with more similarities to Rawls'' justification of other [*375] basic liberties would consider the relationship between various schemes of property and fair political institutions. Although Rawls wants to put off the debate between capitalism and socialism until the legislative stage, both capitalists and socialists are likely to make arguments that only their scheme of property allows fair political procedures. The socialist can argue that private ownership of the means of production will create an imbalance in the political process even if individuals'' holdings are submitted to the difference principle, because the concentrations of wealth in private business concerns will give those concerns great political clout. n64 The capitalist will claim that a concentration of power in the hands of state officials is similarly a danger to fair political institutions: the imbalance of political influence between state officials and those outside the government will be even greater than the imbalance between workers and capitalists in a capitalist state. n65 Nozick would want to give a libertarian twist to the capitalist argument made above, and claim that even in a welfare capitalist state, the government''s ability to regulate markets and to impose redistributive taxes gives the state too much power -- tipping the balance in the political system. The power of bureaucrats detracts from the political influence of individual citizens. n66
The first response a Rawlsian might make to such arguments is that they confuse the liberty of political participation with the worth of that liberty. The worth of a liberty is determined by the other resources a citizen possesses that enable her to make use of the liberty. Rawls acknowledges that mere formal protection of liberties would be insufficient. n67 For most liberties Rawls believes that the difference principle equalizes, as much as is desirable, the resources available for utilizing liberties. Rawls admits, however, that the political liberties are a special case: "[U]nless the fair-value of these liberties is approximately preserved, just background institutions are unlikely to be either established or maintained." n68
One essential means of preserving the fair value of political liberties is "to keep political parties independent of large concentrations of private [*376] economic and social powers in a private-property democracy, and of government control and bureaucratic power in a liberal socialist regime." n69 Rawls thus endorses public financing of elections and political campaigns, without government strings. Nozick can adapt this argument to his own uses. He merely needs to argue that the regulatory state exercises too much power over the political process and the marketplace of ideas. n70 Partial measures such as public financing of elections cannot maintain a fair political process. Only the bulwark of absolute property rights can keep the bureaucratic state from dominating the political process.
I do not suggest that Nozick will win the argument that full property rights should be constitutionally protected, but I do suggest that he can make his argument from the original position as cogently as he can make it on his own terms. n71 The criticisms that would be levelled at Nozick by a Rawlsian from within the original position are the same as those made by Thomas Scanlon and Judith Jarvis Thomson responding directly to Nozick''s theory. n72 Nozick does not argue that his theory of property rights is the correct one; he rather seems to assume he is describing the intuitive theory we all hold already. n73 If the intuition is sound, it can be recognized in the original position, as the argument in the following section makes clear. n74
B. Protecting Absolute Property Rights by Modifying the Second Principle of Justice
1. Nozick''s Arguments That the Original Position Cannot Yield Historical Principles Are Deeply Confused. -- Before examining the two ways that Nozick could argue for his theory of property rights by modifying the second principle of justice, it is necessary to examine Nozick''s charge that the original position is inherently biased against theories like his. Nozick asserts that the structure of the original position leads the [*377] participants to choose what he calls an end-result theory of justice. n75 An end-result principle evaluates the justice of a social institution by looking at the overall distribution of benefits and burdens in the institution. n76 An historical principle ignores the shape of the overall distribution: it only asks whether the holding of each individual is justified on the basis of the individual''s history. n77 In the original position, the participants, because of the veil of ignorance, do not know their own histories. Nozick claims that they therefore have an incentive to approach distributional questions on the basis of egalitarian divisions, as if goods dropped like manna from heaven. n78
This opposition between end-result principles and historical principles is important to Nozick because he claims that Rawls'' difference principle is an end-result principle, n79 while his own absolute theory of property is an historical (also called an entitlement) principle. n80 According to Nozick, the end-result theory achieves its specified pattern through redistributive taxation, which Nozick abhors. n81 Nozick believes that Rawls, by the way in which he constructs the original position, stacks the deck in favor of end-result theories and against historical theories. n82
Nozick''s pessimism about convincing the participants in the original position that historical principles are superior to end-result principles is puzzling. Suppose that every participant in the original position were given a copy of Nozick''s book; why could they not appreciate its merits? The participants are ignorant of their own history, and are choosing on the basis of rational self-interest rather than on moral grounds, but they know basic human nature. Nozick argues for his theory on the basis of the intuitive attractiveness of liberty and general facts about our social life, such as the tendency of liberty to upset patterns. If his argument works at all, it should work in the original position.
Nozick''s argument that the original position favors end-result principles over historical principles is unsound because end-result principles do not stand in opposition to historical principles in the way that Nozick describes. A complete theory of justice always includes both ahistorical principles (such as end-result principles) and historical principles, which complement each other. Nozick can frame the argument between himself and Rawls as he does only by ignoring the historical principles built [*378] into Rawls'' theory and the end-result principles implicit in his own theory. n83
To grasp the dual nature of all complete theories of justice, it is necessary to recall exactly what Rawls'' theory attempts to accomplish. The theory of justice is meant to give shape to the basic structure of society. Central to this basic structure are the laws of property, contract, tort, partnership, corporations, constitutional law, and administrative law, among others. These ground rules not only give shape to the society, but also establish the means by which citizens acquire and transfer wealth. Nozick writes as if his theory of the acquisition and transfer of property (which would encompass the laws of property and contract, among others) gives people historically based holdings, while Rawls'' theory of justice gives people only a numerically specified share in the total wealth of society. But Rawls clearly intends for his theory to give birth to the laws of property, contract, and tort, just like Nozick''s theory. Any complete theory of justice generates these basic rules of society. The justice of a particular person''s holdings will be determined by whether she acquired these holdings according to the rules, as well as by whether the rules themselves are just. Rawls uses end-result considerations to determine what the rules should be, not to assign particular shares to particular individuals. n84
Nozick admits that it is possible to use end-result considerations to frame a set of historical rules, but in such a situation he believes that the end-result principle "will be taken as fundamental." n85 While Nozick admits that a rule-utilitarian could derive principles concerning individual rights, he claims that this is a special case. n86 Historical principles, he claims, could not be chosen in the original position "in the first instance." n87
The notion of "fundamental" is puzzling here. Historical principles are principles that identify individual entitlements. An entitlement is always dependent upon some set of rules which sets its terms. Under Nozick''s theory of property, I am entitled to my property if I acquired it according to the rules of just acquisition and just transfer -- which are rudimentary rules of property and contract. The question remains how [*379] to draft the rules that establish the entitlements. The standards governing the drafting of these rules will always be fundamental in Nozick''s sense.
Perhaps Nozick is claiming that the standards used for drafting the rules that set up the scheme of entitlements need not be end-result standards. But given the dichotomy he has set up, he is forced to define a theory that is fundamentally historical. And whatever else they may be, the standards used for drafting the property rules cannot be historical in Nozick''s sense. The standards used to design the regime of property and contract may be based on individual autonomy rather than equality, or on an argument of principle rather than policy, but they will not be based on individual histories. n88 They will make use of individual histories to establish individual shares.
Another inconsistency in Nozick''s theory is that it contains a large end-result component, in the shape of the Lockean Proviso. I will discuss this aspect of Nozick''s theory at greater length in the last half of the Article. n89 Some theorists maintain that the distributive concerns of the Lockean Proviso swallow up the antiredistributive aspects of Nozick''s theory. n90
Nozick could acknowledge that the theories of justice that define the basic structure always give rise to historical elements, such as the basic rules of property and contract, but argue that end-result principles will always require some additional tampering with historically produced holdings in order to meet the end-result goals. His argument that liberty disrupts patterns attempts to show that reliance on historical principles and the market will transform the society''s distributional pattern and thus defeat end-result principles. n91 Nozick similarly argues that redistributive taxation is a violation of historical entitlements based on the acquisition of property under a scheme of just rules of property and contract. n92
These arguments are misconceived. Taking the latter argument first, taxation, whether redistributive or not, is itself an historical, entitlement process. The tax rules are known in advance, and the individual [*380] can arrange his affairs to manipulate his tax liability. n93 The determination of the tax is historical: it looks to the history of the acquisition of all assets, income, and liabilities. Nozick may think his historical rules of property are just while the historical rules applied by the IRS are unjust -- but his reason for thinking the tax law is unjust is not an historical reason, it is an ahistorical critique of historical rules. n94
The more general argument that liberty disrupts patterns contains a similar mistake. n95 Nozick treats patterned principles as giving governments the power to act in an ad hoc manner to impose the desired distribution of wealth on society. He assumes that the government decides how much wealth an individual should possess and that it later steps in to deprive the individual of any additional wealth he has managed to accumulate. n96 But Rawls'' theory does not fit this picture.
Rawls assumes different schemes of the law of property, contract, business organization, and taxation will yield different patterns of distribution of wealth throughout the society. He contends that in selecting one scheme of law over another, one should take this distribution into account, subject to the protected basic liberties, fair and equal opportunity, and other factors. He does not suggest that the government, after establishing its scheme of laws, should ignore those laws to confiscate a given individual''s property if the individual threatens to break the pattern. Neither does he suggest that we establish the basic structure by assigning every individual his or her proper share, and then attempt to use the law to ensure that the exact distribution never changes. For Rawls, a person''s holdings flow from her own voluntary and historical activity taken in light of the laws enacted under the theory of justice -- including, of course, the laws of taxation. Regulation of the distribution [*381] of wealth is achieved by the operation of the scheme of laws, not by ad hoc governmental activity seeking to preserve the desired distribution. n97
Nozick may mean merely that a scheme of laws that attempts to preserve a partially egalitarian society will infringe upon liberty by restricting the use of property and by redistributively taxing. But if this is all that Nozick is claiming, his argument that liberty disrupts patterns dissolves into his very implausible argument that redistributive taxation is theft, plus his bare assertion that his theory of property rights is correct. Therefore, any theory of property which, like Rawls'', is different from Nozick''s must constrain liberty. Nozick has no argument against Rawls other than whatever argument he can make directly in justification of his own theory of property. However, Nozick gives no positive argument for his theory of property other than describing it and assuming its intuitive appeal. n98 His theory should be as intuitively attractive inside the original position as it is outside of it.
2. Strong Property Rights Could Be Protected by Adopting the System of Natural Liberty. -- Rawls does consider, in explaining his theory, a system of justice similar to Nozick''s entitlement theory, called the "system of natural liberty." n99 The system of natural liberty presupposes a background of equal liberty, as specified by the first principle, and a free market economy. All citizens must have formal equality of opportunity with "the same legal rights of access to all advantaged social positions." n100 But no effort is made to preserve even a relative equality of social conditions. The influence of natural talents and abilities, and of social status, is allowed to affect without interference the distribution of income and wealth in society. n101 Rawls rejects the system of natural liberty because it allows "distributive shares to be improperly influenced by factors that are . . . arbitrary from a moral point of view." n102 According to Rawls, it is morally arbitrary to permit the distribution of natural assets such as "historical and social fortune" to determine the distribution of income and wealth. n103 "[N]o one deserves his place in the distribution of native endowments, any more than one deserves one''s initial starting place in society." n104 Moreover, "[t]he assertion that a man deserves [*382] the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit." n105 Thus, the naturally advantaged person, according to Rawls, has no moral claim to more income or wealth than other members of society.
Quite a controversy has erupted over Rawls'' argument that people do not deserve their natural assets. n106 Nozick asserts that Rawls'' argument denigrates a person''s autonomy and responsibility for his own actions and thus cuts against much of the rest of Rawls'' theory. n107 Nozick also argues that Rawls builds this "quest" to nullify the effects of natural endowment into the original position in a way that prohibits the consideration of Nozick''s own theory. n108
Nozick provides several arguments attacking Rawls'' supposedly central premise that people do not deserve natural endowments. n109 He also argues that Rawls treats the distribution of natural assets as a collective asset, a pool of natural talents that the state can use and reward as it likes. n110 Nozick suggests that this concept, which "treats people''s abilities and talents as resources for others," does not respect the distinction between persons in the same sense that Rawls uses the distinctions to criticize the utilitarians. n111
[*383] Nozick is mistaken, although some imprecisions in Rawls'' account contribute to Nozick''s confusion. n112 All Rawls need contend, in order to defeat arguments for the system of natural liberty based on individual desert, is that people with particular natural assets do not deserve any particular reward. n113
It is helpful at this point to distinguish between desert and entitlement. n114 Entitlements are earned by acting under public rules of conduct that link a benefit with a particular action or status. The justification for protecting entitlements is based on claims of reliance and settled expectations. Thus, entitlement is an historical notion based on reliance upon public rules. Desert is a moral notion that depends upon standards of responsibility and rightness, but these standards are not necessarily as precise as rules. Desert appeals not to the letter of the social rules, but to the spirit of social values. Entitlements cannot be used to criticize social rules or principles of justice; entitlements only come into being as a result of people obeying particular social rules. n115 Claims of desert could be used to criticize principles of justice and social rules if the moral principles underlying the claims of desert were more fundamental than, or at least independent of, the moral principles underlying the principles of justice.
Once a basic structure is established, whether according to Rawls'' theory of justice or Nozick''s theory of property, a person will be entitled [*384] to the income and wealth that flow, according to the structure, from that person''s actions using and developing her natural assets. If she is naturally intelligent, and works hard in school, she is entitled to the high salary she gets for working in a professional job she fairly obtained. Nozick''s world would undoubtedly provide a higher salary than Rawls'' but that makes no difference. Whether she deserves exactly the salary she receives is a more complicated question. If we ask the question whether she deserves her high salary, we might have many different moral questions in mind. For the sake of the dispute between Rawls and Nozick -- for which we are trying to select principles of justice and, through these principles, rules of property which will establish the market for our professional''s services -- the big question is whether she deserves to live in a society that places a high value on her particular skills. n116
After all, different societies will place different values on different talents, skills, and characteristics. n117 Neither Bruce Springsteen nor Magic Johnson would have been so wealthy if he had been born in seventeenth-century Japan. Magic Johnson may partially deserve his ability to play basketball, given his efforts to acquire the skill. But he did not at all deserve to be born into a country where basketball is a popular sport, nor to be born in a country where the private broadcasting system greatly enhances the monetary value of his talents. (In a society with public, nonadvertiser-financed broadcasting, such as Great Britain a generation ago, Magic Johnson''s income would have been quite a bit lower.) He might now be entitled to the fruits of his labors, but that is all.
Nozick and Rawls differ on what constitutes the most just system of property. n118 For both, however, considerations of entitlement are irrelevant, [*385] because each system will generate its own entitlements. Desert is unlikely to have much effect, because we do not have sufficiently detailed notions of desert to guide the design of property rules. Who deserves the most income -- the most intelligent, the strongest, the hardest working, the most pious? Should we design our system of property to reward such qualities? Do we have any intuitions about the proper magnitude of the reward? The odd sound of such questions indicates the difficulty Nozick would have in contending the well-endowed deserve more than Rawls gives them. n119 Without a concrete social system in place, we do not know what talents to measure in order to determine who the well-endowed will be, let alone how much they deserve. n120
Furthermore, Rawls himself has available an appeal to desert that is as compelling as anything Nozick could construct. For Rawls, income over the social minimum is attached to jobs in such a way that the least well off are better off than they otherwise would be. Those who will earn the most money are selected for their jobs and paid more because they, with their talents, skills, and characters as utilized in their job, contribute more to the well-being of the worst off than anyone else. Greater income is tied to societal contribution in a well-defined way. If the most intelligent deserve relative wealth, it is because they most help others in society by applying their intelligence to their particular job. n121 This is as persuasive [*386] a notion of desert as Nozick could ever find. n122
3. Strong Property Rights Could Be Protected Under One Implementation of the Principle of Average Utility. -- Nozick could argue against the difference principle and for his theory of property in another way. Rawls believes that the strongest competitor to his difference principle is the principle of average utility. If the principle of average utility were selected as the second principle, the task of designing a system of property that implemented that principle would fall upon the legislature in the third stage of Rawls'' process. n123 Some theorists from the law and economics movement, a powerful movement in legal scholarship, would claim that a system of absolute property rights looking much like Nozick''s theory of property would be chosen under the best feasible implementation of the average utility principle. n124
4. Conclusion. -- Nozick has many resources in attempting to present his own position within the procedural constraints of Rawls'' theory. He can argue that absolute property rights are protected by the liberty principle, if that principle is properly understood. He can argue that the system of natural liberty is superior to Rawls'' favored system of democratic equality. Finally, someone who believed in Nozick''s theory of property, if not his underlying moral theory of rights, could argue in favor of replacing the difference principle with the principle of average utility in the original position, and a theory of absolute property rights in the legislature.
[*387] The existence of these argumentative resources suggests that the disagreements of Rawls and Nozick are founded upon the political content of their views, and not upon differences in method. Moreover, one can see the arguments of Rawls and Nozick as addressing each other''s core interests, rather than obliquely sliding by each other in the way suggested by those who claim that their theories are incommensurable. To complete the demonstration of this point, this Article will examine the resources available to Rawls that enable him to argue for his theory from the starting point of Nozick''s state of nature.
III. THE ARGUMENT THAT THE DIFFERENCE PRINCIPLE FOLLOWS FROM NOZICK''S THEORY OF PROPERTY
Deriving Rawls'' theory of justice from Nozick''s version of Locke''s theory of property may seem to be a magic trick on the order of pulling an elephant out of a top hat. n125 How can anything that big fit in something so small? Indeed, I will not attempt to show that Rawls'' entire theory follows from Nozick''s theory of property, only that under the most persuasive interpretation of Nozick''s theory, personal property is subject to other liberty interests and to the difference principle (and thus, to redistributive taxation). n126
Nozick calls his theory of property an entitlement theory. The core [*388] idea is that once people have justly acquired property, it rightfully can be taken from them only with their consent. A full entitlement theory of property, for Nozick, consists of a principle that describes how previously unowned property can be justly acquired, a principle that describes how property can be justly transferred (only by consensual transactions), n127 and a principle of rectification that describes how things are set right if either of the first two principles are violated. n128 Nozick does not assess the justice of the current distribution of property by looking at the pattern of its distribution, as Rawls does when he looks at the magnitude of the inequality between rich and poor. Instead, Nozick looks at the history of how each individual came to own his or her share. If the first two principles of just acquisition and transfer were not violated during this history, the ownership is just, no matter what distributional patterns arise. n129 Nozick never attempts to fully formulate the three principles of his theory of property, but he does delineate some of their features.
Nozick intends that his theory of property follow the theory of John Locke. Although he never works out the details of how just acquisition is achieved, n130 Nozick adopts Locke''s notion that acquisition involves [*389] altering a thing by one''s labor. n131 Most important, Nozick''s principle of just acquisition contains Locke''s Proviso, which allows appropriation of previously unowned property only if "there is enough, and as good left in common for others." n132 As Nozick restates the Proviso, "[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." n133 The Proviso also applies to the principle of transfer: "If the Proviso excludes someone''s appropriating all the drinkable water in the world, it also excludes his purchasing it all." n134
Nozick''s theory of property can be attacked from several directions. n135 Several commentators have noted that most of the economic resources of the industrialized nations were at some time acquired by unjust acts. n136 One could argue that for this reason Nozick''s first two principles are rendered nugatory, and that the rectification principle is the only principle still of relevance to our society. Nozick himself suggests that considerations of distributive justice might play a role in the principle of rectification, although he opposes their use in other contexts. n137 I will not, however, base my argument on the principle of rectification. n138 [*390] One could also argue that Nozick must give an argument why, in a society like ours, where all property (other than newly created intellectual property) has long been appropriated, current owners still deserve absolute property rights in their holdings. n139
I will concentrate, however, directly on Nozick''s explanations of the principles of acquisition and transfer as he describes how they would work in the state of nature. By means of Locke''s Proviso, the difference principle can be established from the principles of acquisition and transfer.
Locke''s Proviso is subject to a well-known problem: How can all of the property in an economy be appropriated justly under the Proviso if many people are left without property? n140 As Nozick has noted, this infirmity [*391] in the acquisition of the last few bits of unappropriated property tends to "zip back" to infect every prior acquisition of property. If there exists a last bit of property which can be acquired, its acquisition by anyone makes all other would-be acquirers worse off. n141 This problem threatens to make any acquisition of property unjust, thereby undermining the entire theory. n142
Nozick attempts to get around the difficulty by two means. First, he suggests that "worse off" be interpreted to include only the loss of use of the property appropriated (which directly harms a person''s well-being), but not to include the speculative harm of being foreclosed from appropriating property oneself. n143 Thus, Nozick''s "zip back" effect does not invalidate all appropriations of property, but instead stops at a point where there is a common stock of property sufficient to provide for the general welfare. Yet no such common stock of property still exists. n144 To justify a regime of property where there is no commons, Nozick needs another response. n145
[*392] Nozick''s second response is that people who would otherwise violate the Proviso may still appropriate property if they pay compensation. n146 The amount of compensation must equal the degree to which the situation of others is worsened from their situation before appropriation occurs (the "baseline"). Thus, appropriation of all the property in an economy can be justified. To parallel the possibility of compensation for appropriation, Nozick suggests that under the transfer principle, the monopolist may purchase the monopoly but may not charge an excessive price for the goods produced by the monopoly. n147
Much remains to be spelled out about Nozick''s theory of property and the Lockean Proviso before the amount of compensation can be determined. A complete theory must confront three key issues: Who has a right to compensation, when in her life is compensation due, and what measure of compensation is due? The remarks above might suggest that [*393] few people in a modern society would be due compensation, compensation would be due only once per person, and its measure would be so strict that even when calculated, the amount owed would ordinarily be zero. n148 I will argue that even in a modern society, everyone is potentially owed compensation because no one has had the chance to appropriate property. I will also argue that the functioning of the market will constantly bring the Proviso into play, thus requiring constant comparison to the baseline with respect to the principle of transfer. Furthermore, Nozick does not describe the baseline situation with any particularity, and so does not give the precise measure of compensation. I will attempt to establish that the most plausible interpretation of the baseline -- and thus of the measure of compensation -- is set by Rawls'' difference principle or something similar to it.
A. The Frequency of Applying the Proviso
1. The Acquisition Principle and the Number of People Potentially Due Compensation. -- The Proviso, as we have seen, gives rise to compensation rights in those who are driven under the baseline by acts of appropriation or transfer. One might think, however, that such acts rarely occur. Consider a society where all available property has been appropriated, by the government if by no one else, for at least a generation. I will call such a society a well-developed society. Once compensation is paid in a well-developed society for past unjust appropriations, how could any further rights to compensation from appropriation arise? n149 Compensation rights for acts of transfer are not similarly foreclosed since monopolization is still possible in our current economy, but Nozick claims monopolies will rarely arise. One can argue that acts which create claims to compensation will rarely occur in a well-developed society, and therefore a continuing compensation right like the difference principle could not plausibly arise from Nozick''s theory.
However, Nozick is mistaken in believing that no occasions for compensation will arise in a well-developed society as a result of the original acquisition of property. He falsely assumes that a compensation right can arise only at the time of the original acquisition. Nozick admits elsewhere that the compensation rights arise when a newcomer enters a situation where all the property has previously been appropriated. n150 Thus a [*394] sailor newly stranded on a desert island where another was stranded a year before cannot be kicked off the island by the first-comer for trespassing. n151
The most important newcomers to a well-developed society, for present purposes, are children. I contend that all children are due compensation if nothing is left to appropriate. In a well-developed society, everyone is due compensation, because everyone, as a child, entered the society without an opportunity to appropriate property.
The natural response to my claim is that the support of children is a duty of their parents (or more broadly their families) and not a duty of the society at large. n152 This objection has intuitive appeal: Because the family either acquired property or was compensated for being foreclosed from acquisition, a new member of the family has no grounds for complaint. n153 I grant that it is first the duty of the parents to support a child, then the duty of other relatives, and only as a last resort the duty of society at large. However, there is a distinction between the duty to support a growing child, and the child''s property rights upon becoming an adult. n154 The child''s right to support is not a property right. Parents have no duty to provide the child with property, only with shelter, food, drink, and clothing. n155 The duty of support is consistent with a regime that does not allow a child to own property.
The attribution to a child of her family''s property is inappropriate, because we have no cultural expectation that children must inherit the property of their parents. Some systems of property, for example the inheritance laws of Louisiana and France, have forced heirship provisions that require a proportion of a parent''s estate, often from one-third to two-thirds, to pass to the children. But Nozick and the Anglo-American common law do not agree to such a restraint on the parent''s property rights. If the parent is not forced to leave property to the children, it is [*395] difficult to argue that the parent''s property should be attributed to the children for purposes of applying the Proviso.
Moreover, even under conditions of forced heirship, it is appropriate to contend that the child is a newcomer. The tricky point is to determine when the right to compensation would accrue. I propose that a child who is a minor is due support; upon majority, the right to receive support ends, but the right to compensation under the Proviso ripens. This is appropriate because, until majority, the child cannot assert the full rights to enjoy and dispose of property. In addition, upon majority the new adult has no claim of right against anyone for compensation, property, or sustenance except, perhaps, for compensation under the Proviso. As parents do not ordinarily die at the exact time a child reaches majority, forced heirship statutes do not change the situation. It therefore seems best to conclude that a child is indeed a newcomer who cannot be charged automatically with the benefit of her family''s property, and that the child''s right to compensation accrues upon majority. n156
It is important to note at this point that just as the class of newcomers due compensation is large, so is the class of appropriators who owe compensation. The last person to appropriate is not the only appropriator who owes compensation: the actions of earlier appropriators also contributed to foreclosing the opportunities of newcomers. Therefore, all appropriators should pay compensation. n157 The cost should be spread pro rata over all appropriated property.
[*396] 2. The Transfer Principle and How Often a Person''s Well-Being Should Be Compared to the Baseline. -- Nozick contends that compensation due under the just transfer principle''s Proviso will be rare, because monopoly is rare. I will not dispute Nozick''s empirical judgment, although I admit my skepticism. Rather, I suggest that monopoly is not the only condition under which the Proviso to the just transfer principle will come into play.
Nozick discussed monopoly and the Proviso as follows:
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. n158
Thus, the harm done to those with rights under the Proviso is the increased price of a necessary commodity (in lieu of the more serious harm of deprivation of the commodity). What remains unclear is the measurement of compensation: What is the highest price that can be charged without violating the Proviso? I think there are two reasonable alternatives: the efficient market price, and the baseline price. I will examine each, showing that each gives rise to compensation much more often than Nozick believes, and I will conclude that it is more appropriate to use the baseline price.
Selecting the efficient market price has intuitive appeal, because the evil Nozick sees in the achievement of monopoly is the extraction of monopoly profits. n159 The monopolist, by virtue of control of the total supply, can charge a higher price and still sell a sufficient amount of the commodity to gain a larger-than-normal profit. The consumer is disadvantaged, according to this account, by a power that the monopolist would not be able to exercise if the raw materials used to manufacture the commodity were still left unappropriated and available to the consumer. Therefore, the Proviso comes into play. n160 If this account is correct, it is not necessary for the monopolist to be a single person. If a cartel formed and jointly agreed to charge monopoly prices, the wrong done to the consumer would be the same. Indeed, an explicit agreement is not necessary. Studies of oligopoly show that when ownership is concentrated, oligopolists can act in concert to maintain higher-than-efficient [*397] prices: each oligopolist is aware that if each maintains higher prices, all will reap higher profits, but if one cuts prices to increase sales volume, all will follow suit, and all will suffer. If an oligopoly charges higher-than-efficient prices, whether by explicit agreement or not, the wrong done to consumers is the same as monopoly, and thus the Proviso is implicated.
It is not clear whether Nozick would agree with this expansive interpretation of the transfer Proviso. Notice that Nozick claims that monopoly will be rare because as the prospective monopolist acquires more of the commodity, the price will rise. Nozick does not suggest that the Proviso requires compensation for this price increase. Nozick might try to distinguish an attempted monopoly (and thus also an oligopoly) from an achieved monopoly by appeal to the natural functioning of the market, as opposed to the unnatural state of monopoly. But it is difficult to make any sense of "natural" in this context. For purposes of the Proviso, we are looking for harm caused by the lack of unappropriated property that could be used by the consumer. An efficient market model assumes a large number of producers: the state that would be true if there were enough property leftover for all to use or to appropriate. Any move from the efficient price (because there is nothing left to appropriate and ownership is becoming concentrated) will implicate the Proviso. Thus, under the efficient price interpretation, the Proviso to the transfer principle will be implicated much more often than Nozick acknowledges.
The other plausible interpretation of the transfer Proviso is that the Proviso is implicated only when the price is higher than the baseline price. The rationale for this interpretation is the same as that for the use of the baseline for the acquisition Proviso. The relevant comparison is not between the current economic system with and without concentration, but instead between the current situation, which is after appropriation, and the situation that would have occurred had appropriation of the natural resources not been allowed. n161 The baseline interpretation also has the great advantage of tying together the interpretations of the Proviso for the acquisition and transfer principles, since the acquisition Proviso also appeals to the baseline society in measuring compensation.
The baseline interpretation will implicate the Proviso and require a comparison of a consumer''s current situation and the baseline even more often than the efficient price interpretation would implicate the Proviso. Under the baseline interpretation, there is no particular attribute of a transaction that triggers the Proviso, other than a consumer being disadvantaged by a price that is too high. Any transaction that affects market prices could do so. Since prices change constantly in any mature market economy, it is always and continually an open question whether compensation is due. n162
[*398] In an era of chronic inflation, this baseline interpretation might seem to weigh strongly and unfairly in favor of my ultimate position. Gas fifty years ago cost ten cents a gallon; now it costs at least eighty cents. Is the extra seventy cents, and more besides, a price over the baseline that requires compensation? A closer examination of the concept of price as used here is necessary to soothe this concern. When this is done, the baseline interpretation will seem much to Nozick''s advantage.
The comparison of price from one culture to another or one historical period to another is notoriously tricky. n163 Comparisons between distant historical periods are even more tenuous. The baseline situation, whether taken as a hypothetical or historical society, exhibits some of these difficulties. To make sense of the comparison, the following principles must be noted. The price of any commodity must be considered relative to net income and community lifestyle. Indeed, since particular commodities play different roles in different cultures (cotton has been a luxury good and wool a staple of clothing in some cultures, while in others, cotton has been a staple and wool a luxury), it is probably best to compare across large functional categories, such as housing, clothing, food, and transportation. I will suggest that given a well-developed society it is often best to make only one broad comparison between a person''s current lifestyle and her baseline situation. n164
But even if we are still dealing at the level of commodities, given the care we must use to take into account the level of income and cultural differences in the use of the commodity, Nozick will argue that compensation will rarely be due. The great expansion of an economy made possible by the institution of private property greatly increases the number and quality of commodities available. Thus, in a well-developed society, almost everyone will be well over the baseline in every broad category of commodity. If we take the average resident of colonial America as setting the baseline, for purposes of argument, anyone earning the minimum wage in our society is unlikely to be due compensation for any commodity. n165 [*399] Certainly if we compare entire lifestyles or ability to purchase (or acquire) basic goods, compensation will rarely be required.
Under the baseline interpretation of the transfer Proviso, the question of compensation is always open. No particular event, such as attempted monopolization or even deviation from an efficient market, triggers the compensation right. Instead, the situation of everyone must be constantly compared to the baseline situation. n166 However, if the baseline is at all similar to colonial America, there are empirical reasons for thinking that compensation will rarely be necessary. n167
The baseline interpretation is preferable to the efficient price interpretation. The efficient price interpretation was suggested by Nozick''s example of monopoly prices as a violation of the transfer Proviso. n168 But the basic notion behind the transfer Proviso is that one should not be able to do by transfer what one is not allowed to do by direct appropriation. The baseline interpretation of the transfer Proviso accordingly refers back to the standard for just appropriation. However, inefficient prices are not directly connected to the original intuition of wrongfulness (getting around the prohibitions of the just acquisitions principle). n169 Instead, inefficiency is the sin characteristically denounced by a utilitarian market theory. But Nozick is not a utilitarian and neither was Locke.
3. Objections to an Integrated Account of the Acquisition and Transfer Provisos. -- One might argue that these accounts of the acquisition and transfer Provisos do not fit together in the manner described above. One might deny that a duty to compensate for unjust appropriation survives transfer. If A originally appropriates some property and sells it to B, can B later have a duty under the Proviso to compensate new adult C, who is propertiless and has no opportunity to appropriate property? Or does A retain the duty to compensate C?
Whether A or B bears the primary duty to compensate is dependent upon the conventional understanding of the terms of the sale. If the purchaser, B, is understood to bear the primary duty, the purchase price of the property will be lowered accordingly to reflect that risk. The intuition that B should not have to pay because A got the benefit of the appropriation [*400] is only true if B paid a price that did not take the potential compensation duty into account.
In any event, each should be liable for the compensation should the other be unable to pay. Both have had use of the property in a form that would have been unavailable if appropriation had not taken place. C, the new adult, is totally innocent and has no way to protect her interests. n170 Compare this situation with the treatment of a purchaser of stolen property. n171 Even if the purchaser does not know that the property was stolen, generally the purchaser must give the property back to the true owner. n172 (The thief, of course, is liable to the true owner until the property is returned, n173 and thereafter to the purchaser for the purchase price. n174 ) Thus, the victim of the theft is owed a duty by both the thief and the innocent purchaser. Similarly, C, the new adult, should be able to obtain compensation from either A or B; whether the one who pays compensation has a right to contribution or indemnification from the other would depend upon the understanding of the terms of their contract.
In a complex economy, keeping track of such compensation rights will, of course, be extremely difficult. For any particular type of natural resource, there will be many appropriators, and even more subsequent purchasers. For many resources the transfers will not remain identifiable, but will be divided, combined, and mixed with other types of resources into new forms of property. Administratively, claims for compensation would have to be paid collectively by all property holders.
The objection might be raised that such an analysis confuses the acquisition and the transfer Provisos. My point is precisely that the two are not separate and distinct. Nozick originally conceived of the transfer Proviso as preventing the exploitation of a monopoly status gained by trading. We have seen that the same harm arises in any situation where factors such as concentration of ownership counterbalance the efficient working of the market and bring some newcomers below the baseline. Thus, for both the acquisition and transfer Provisos, the harm triggering compensation is the same: a newcomer is reduced to a situation below the baseline. In any situation where a newcomer is so reduced, the choice of whether to claim a violation of the acquisition or transfer Proviso [*401] will depend on a comparative causal judgment. Were the original acquisitions or later conveyances more directly responsible for the harm to the newcomer? In some situations such a causal comparison would be very difficult to make. However, there is no need to make this comparison since it makes no difference which Proviso is violated, once it has been decided that the entire community of property owners jointly are responsible for any compensation. n175
The transfer Proviso can be taken as a necessary corollary of the acquisition Proviso (and so deserving to be interpreted to have the same baseline) for the following reason: The common store of property provides security from the vagaries of the market; allowing acquisition of all property held in common harms those left without property by depriving them of this security. Consider a small village with a subsistence grazing economy and land held in common. The villagers decide to turn to cash crop farming to improve their income; the transition requires that land be held as private property by some and that others work as wage labor. One of the harms to the wage laborers in losing the use of the common property, even if their wages purchase a higher standard of living than they had before, is that the common land provided security. The price of the cash crop, dependent as it is on the world market, could plummet tomorrow. The wage laborers would be made destitute. If the village had remained in a subsistence economy, the laborers could have continued their subsistence living. The transfer Proviso can be used as a hedge against this harm. The acquisition and transfer Provisos can thus be seen as aspects of one larger principle: that no combination of acquisitions of property and subsequent transfers of property should allow the propertiless to fall below the baseline situation. n176
To sum up the argument so far, I have examined Nozick''s claim that Locke''s Proviso to the principles of just acquisition and transfer will [*402] be brought into play only very rarely. I have pointed out first that Nozick greatly underestimates the number of occasions when compensation is a live issue, and second, that in the measurement of compensation, comparison must be made to the baseline situation. However, the argument so far suggests that actual compensation may be as rare as Nozick believes, because of the unlikelihood that a person''s situation in a welldeveloped society will fall below the baseline.
B. The Measure of Compensation Under the Proviso
To determine how often compensation is likely to be due, it is necessary to more closely examine the baseline. Our previous analysis has established the following aspects of the baseline situation. We began with a simple situation. One person appropriates the last of a supply of a natural resource, leaving someone else unable to appropriate it. If the newcomer is made worse off by the appropriation and subsequent transfers of the natural resource than she would have been had the appropriation not occurred, compensation is due to the newcomer. n177 We soon discovered the situation had to be generalized. More persons were liable for compensation than just the acquirer of the last resource. Under the acquisition Proviso and the "zip back" principle, all previous acquirers of the resource must be partially liable. n178 Under the transfer principle, all subsequent owners of the resource (who purchased or received the resource from any of the acquirers) are also potentially liable. n179 Finally, we saw that it is very difficult to judge compensation on a commodity-by-commodity basis. The compensation price must be relative to income and to the role of the commodity in the person''s or community''s lifestyle. n180 It is thus preferable to judge compensation at the level of broad categories of commodities, rather than single commodities, and better yet to judge the entire style of life, or the general availability of basic goods. Compensation should be owing from the entire set of acquirers, transferors, or owners of any commodity in the broad category of commodities treated as equivalent. If all commodities are treated together as a style of life or set of basic goods, all property owners should be proportionately liable.
Even if we are comparing styles of life, or stores of basic goods available to a given income, we still have the problem of picking the baseline situation. To do this, two basic choices must be made. First, we must define the baseline society. Is it some point in the historical development of our own society? Or is it an abstraction, like the "perfect market" used in economics? Second, we must establish how to determine the baseline for any given individual. Is the baseline the same for every person [*403] in the United States reaching majority this week? Or do we take each newcomer and project her back into the baseline society and discover what her personal situation likely would have been?
1. How Are Particular Individuals Compared to the Baseline? -- Consider first the problem whether the baseline is the same for all contemporaneous newcomers. n181 There can be a different baseline for each contemporaneous newcomer only if we can identify traits in each newcomer that would have caused individuals to achieve different standards of living in a past society (or a hypothetical society). There will be many difficulties in such an account, such as identifying character traits that would make such a difference and justifying how variation in each trait corresponds with a variation of standards of living in the baseline society. It is also likely that random factors, such as luck and status at birth, would greatly influence standards of living in the baseline society.
There will also be problems of personal identity and constancy of traits. We want to compensate the newcomer for the difference between her present situation, and what her situation would have been without the appropriation (or transfer) that triggered the Proviso. Such a comparison is easy enough in examples like the appropriation of a water hole in the desert twenty-four hours before another traveler comes upon the water hole dying of thirst. Such a comparison is much more difficult when we ask of someone who has just reached majority what her life would have been like if land in Massachusetts had not been appropriated in previous centuries. If we try to project the current individual back into history, we do not know whether she is, in any relevant sense, the same person. Can conclusions about how a hypothetically projected person would fare in historic Massachusetts appropriately determine the current right to compensation of the existing contemporary person?
The same point can be appreciated, perhaps more easily, by examining the function of the character traits of the existing person. Suppose the Massachusetts youth approaching majority is utterly average by 1985 standards. Those traits will not necessarily be average for the Massachusetts of 200 years ago. Our contemporary person will be much taller and heavier than average, with a better education. She will have some skills that are irrelevant to the old society and will lack other skills that are necessary. Of course, we can never escape the fact that different societies prize different abilities or character traits. n182 The more we translate an [*404] existing person''s traits to try to find an equivalent for the baseline society, the more tenuous the claim that the existing person''s right to compensation should be measured by the putative success of a reconstructed person with the translated traits.
If a formula for individual rates of compensation cannot be found, an appropriate rate for all must be chosen. In fairness to property holders, it cannot be assumed that everyone would have done well. I propose to solve this problem in a way most congenial to Nozick, that is, in a way that will lead to the least compensation: A newcomer is compared to the average person of the least-favored class in the baseline society. n183 More precisely, the baseline for everyone becomes the life situation of the poorest of the able-bodied employed, including the self-employed. n184
2. The Baseline Society Is Not the State of Nature. -- We face the problem of describing the baseline society. I have been assuming in my examples, for simplicity''s sake, that the baseline society is some historical predecessor to our own. This historical predecessor is most often identified as the state of nature. Nozick is among those who make this assumption. n185 However, this assumption does not withstand examination. First, to present a minor problem, there is no one point in history at which it is most appropriate to locate the baseline. The appropriation of property was a process lasting centuries. This problem is exacerbated if compensation is figured for all natural resources collectively rather than figured separately for each type of resource.
More fundamentally, our intuition is not that the comparison should be made between a newcomer''s situation now and her situation some time ago when natural resources were acquired, but rather that the comparison should be made between her situation now and her situation as it would be now if those acquisitions had not been allowed. n186 The [*405] baseline society is thus not a point in our past, but a hypothetical contemporaneous society that has developed from some point in our past. n187 Before canvassing all the detailed arguments on this point, a concrete example -- a desert island -- may bring home the emotional force of the objection to the state of nature as the appropriate baseline. n188
Assume A and B are washed ashore on a desert island. There are six coconut trees on the island, each producing a coconut a day. A and B discover that the trees when cultivated produce more. They each appropriate three trees, claim them as private property, and cultivate them. A year later it is apparent A has a green thumb, and B does not: A''s trees each produce five coconuts a day; B''s trees each produce merely three coconuts a day. Enter C, washed ashore. C, with the skills of an average coconut farmer, could have cultivated trees to produce four coconuts a day. What compensation is due C?
If we assume that the baseline is a point in history, the only appropriate point would be before A and B appropriated the trees. With six trees and three people (adding C), each person would have had the fruit of two uncultivated trees, or two coconuts a day. This, however, greatly understates the harm done to C. C has lost the opportunity to appropriate and cultivate his own trees and enjoy the greater income. Additionally, C has lost the opportunity to join with others in collectively appropriating and cultivating the trees. Even if private property in coconut trees had not been established (suppose there were only two trees instead of six so that equal division into private property were impossible) some social arrangement quite possibly would have been made to cultivate the trees and to share, perhaps unevenly, the proceeds. A, B, and C could have formed the People''s Coconut Commune (or Amalgamated Coconut, Ltd.), taken possession of the trees in common, or as a group, and hired themselves to cultivate the trees. A, as the master farmer, is perhaps paid more and chosen to supervise. As a result, the trees all produce five coconuts each and the income is split: A gets twelve coconuts, B nine, and C nine. Or perhaps the inefficiency of collective [*406] ownership counterbalances the influence of A''s skills on all the trees and the total crop is just the same as if each person held two trees as private property.
In any event, C''s harm from the total appropriation of coconut trees before his arrival is more than the two coconuts a day that the historic interpretation of the baseline suggests. I suspect that the most common intuition about C''s situation is that he should be given two trees to cultivate. But that would be a redistribution of the means of production, not a mere paying of compensation. If we tried to frame this in terms of compensation, A and B should hire C to help cultivate the trees at a rate at least equal to what C would have made cultivating his own two trees.
At the least, this example should raise doubts that the state of nature is the appropriate baseline society. There are many ways, however, to explain the force of the desert island example, and more generally, the reasons why a baseline set in the state of nature does not adequately compensate those who are unable to appropriate property. n189 Recall that according to Nozick, appropriation is impermissible "if the position of others no longer at liberty to use the thing is thereby worsened." n190 We are attempting to discover what constitutes "worsening" the situation of another. n191
The following harms could be proposed as types of worsening that the measure of compensation should take into account. First, nonappropriators lose the opportunity to appropriate individually. Second, nonappropriators lose the opportunity to make joint decisions to develop assets cooperatively. Third, appropriation can be construed as a violation of the rights of nonappropriators, with the proper measure for compensation for the violation of a right being not merely the cost of replacement or repair, but instead the market price, or the price to which the parties would have bargained prior to the violation. n192 Fourth, appropriation can be construed as a violation of the rights of nonappropriators with compensation for infringement of these rights determined by reference to the reason for the violation. For example, Baruch Brody suggests that the proper compensation for a violation of rights caused by a serious threat of great harm only gives rise to compensation adequate to restore the status quo. For example, if you are sailing and a sudden storm threatens the lives of you and your passengers, you are allowed to dock at someone''s private dock, without permission, even [*407] if leaving your boat at the dock during the storm will injure the dock. The measure of compensation would merely be the cost to repair the dock. But where the right is violated in order to gain a large advance of well-being, the owner of the right must be given a fair share of the gains of the transaction. n193
Nozick could make the following objections to these reasons for compensating nonappropriators more generously than would be done if the baseline were determined by the state of nature. He could deny that appropriation violates any rights because property in the state of nature is unowned. He could assert that any measure of compensation greater than that provided by the state of nature abridges liberty, because it uses the talents of some people for the benefit of others. Furthermore, he could contend that a higher measure of compensation allows the current least advantaged to make use of the general economic development that has occurred since we grew out of the state of nature. Because that economic development is the result of the effort and talent of others, the current disadvantaged have no right to take account of it in determining the measure of their compensation. These potential objections will be discussed in turn.
a. The Objection That There Are No Property Rights in the State of Nature. -- Nozick''s first potential objection, that appropriation does not violate rights, might at first seem puzzling. After all, the hypothesized appropriations violate the Lockean Proviso; that is why Nozick adopts the notion of compensation in the first place. One line of defense that other libertarians have suggested when commenting on Nozick is that the Lockean Proviso should be abandoned and all appropriations allowed. n194 Under this theory, all property in the state of nature, before it was appropriated, would be strictly ownerless. People as a group would have neither common nor joint ownership. Anyone could appropriate any unowned property by taking the proper steps (mixing labor with it, possessing it, claiming it, or using whatever method the theory of property dictated), without worrying about what was left for others. This theory would, of course, do away with any compensation rights whatsoever.
A more moderate approach would be to claim that although appropriation gives rise to a right to compensation, it does not violate anyone''s right. Appropriating property would be like exercising an option such as a stock option or an option on a contract to purchase real estate. Undertaking the duty to pay compensation would thus become a condition to [*408] the exercise of one''s right to appropriate. In effect, the payment would become compensation like consideration in a contract, rather than compensation in the sense of redress of injury.
I will give three arguments why this objection is mistaken. First, I will argue that my theory of compensation can be based on a very limited notion of property rights that a state-of-nature theorist will be hard pressed to reject. Second, I will argue that even if there were no property rights in the state of nature, acquisition of property would violate other important personal rights. Finally, I will argue that even if no rights are violated, the harm of lost opportunities requires more generous compensation than would be provided using the state of nature as the measure of the baseline.
The degree of common ownership of property necessary in the state of nature to claim that appropriation contrary to the Proviso is a violation of property rights is not very great. An extensive form of common ownership would require the consent of all before any property could be disposed of by giving it to an individual. n195 But such common ownership is not required for my theory. The only property right that people need is a right to prevent others from barring access to the property. This right of personal use, which everyone would hold, is only one right from the bundle of rights that full ownership of the property would entail, but it is all that is needed to give rise to a robust right of compensation.
The critic will have a hard time arguing against the plausibility of such a right. One Lockean argument, suggested to me by Carol Rose, would claim that the original state of nature is a state of plenitude, where there are no property rights at all because there is no scarcity and hence no way to harm other people by possessing goods for one''s own use. Whatever one acquires, there is as much and as good left for others. Property rights can arise only when scarcity develops. n196 Appropriation causes harm only after scarcity develops. The state of plenitude enables [*409] us to locate a time when there are no property rights, according to the critic. When someone seeks compensation for an appropriation during scarcity, the critic will argue that the real harm was done not by this particular appropriator, but by the move from the state of plenitude to the state of scarcity, which was a precondition to setting up the property system of appropriation and compensation in the first place. Thus, whatever the reason for compensation, it is not that anyone''s right to property was violated. Any attempt to measure compensation in terms of a fair share of the proceeds or what hypothetical bargain the appropriator and nonappropriator would have struck is misguided, according to this argument. The harm to the nonappropriator is the drop in standard of living from the standard at the time of the appropriation, and that is all.
This type of critical argument does not withstand scrutiny. Its timing is off. On the one hand, if the first appropriation precedes scarcity, the theory is incoherent because appropriation itself is a process of creating property rights, and so it requires that a theory of property rights already be in existence. If the theory of property rights can exist for appropriation, so can property rights that block appropriation. On the other hand, if the first appropriation occurs only after scarcity develops, then there is time, after scarcity, to develop a full theory of property rights to block appropriation. The existence of a prior state of plenitude becomes irrelevant. Even if both scarcity and first appropriation occur together, any theory of property rights that can approve a method of appropriation also can include preexisting property rights that block improper appropriation. In other words, the state of plenitude is irrelevant. The critic should just directly argue that although a system of property rights exists which gives the requirements for appropriation and protects property once appropriated, people have no general property rights in land or goods that have not yet been appropriated.
Indeed, a true state of plenitude could never have existed. Scarcity is always with us, because we are limited beings, who have limited time, power, and ability to move, as well as the emotional propensity to form sentimental attachments. Even if Adam and Eve lived in a state of plenitude, there would still be only a limited number of apples so close within reach that they did not have to exert themselves to pick them, and limited space to possess and lie down upon within easy walking distance. Any sentimental attachment to any tree, animal, or plot of land would instantly create scarcity even though an infinite number of substitutes could be found elsewhere. So if Adam and Eve had a fight, and one wished to exclude the other from this plot of land or that orchard, then there would be scarcity and the psychological basis for property.
[*410] More generally, the argument against even minimal common ownership in the state of nature lacks any strong justification. Certainly it is contrary to Locke. The basic idea of the state of nature is that all human beings have a general right to the use of the fruits of the earth. This right can hardly be other than a property right of a limited sort; a right to prevent others from acting in ways that prevent you from enjoying the fruits of the earth -- drinking from a stream or picking an apple. Theorists who would deny such rights do not provide a detailed alternative explanation of the state of nature. When they say that all unappropriated land is unowned, they apparently are thinking of more substantial forms of ownership, because they are denying that some group of people owns the land in common and makes collective decisions about its use. But my theory of compensation does not require so substantial a bundle of property rights; any thin right which blocks appropriation will do.
My second answer to the critic who denies the existence of property rights is to claim that other rights in the state of nature would prevent appropriation. Suppose that the only right in the state of nature was freedom of movement. If A attempted to restrain B from walking in the apple orchard, that would be a violation of B''s right. A system of property rights is now proposed, and A contemplates appropriating the orchard. If A attempts to appropriate the orchard and keep B out, B''s liberty of movement is restricted. His right to freedom of movement is violated unless the appropriation process somehow alters B''s preexisting rights. Whether we talk of violating a right, or of altering the right without the party''s consent, the harm that gives rise to a need for compensation is apparent. The right involved need not be a property right.
The critic who denies that property rights exist in the state of nature also ignores the overlap of property rights and other rights that prevents firm distinctions from being drawn between them. A property right does not involve merely the relationship between one person and one thing, it involves the relationship between one person and everyone else with regard to some thing. But things are of instrumental use to all rights and relations between people, and so all rights have an aspect of property. My right to control my own body makes no sense if I have control over nothing with which my body may have contact. My right to free movement makes no sense if I have no place where I am allowed to move. My right to bodily integrity constricts your property right to use your knife as you see fit.
For Nozick, and similar state-of-nature theorists, the state of nature is predominantly a state of freedom and liberty. One''s fundamental rights in one''s own body and in its free use are morally protected; no one else may infringe them. That is, after all, what separates the Lockean state of nature from the Hobbesian state of nature. A modified Lockean state-of-nature theory without property rights might seem possible; a Lockean theory without any personal rights is absurd. But that is where [*411] the denial that any rights exist which would give rise to compensation upon appropriation must lead.
Finally, there is a third argument against the critic who denies that the harm that gives rise to compensation during appropriation is the violation of a right. The harm suffered upon appropriation also can be characterized as the loss of an opportunity. Indeed, Nozick at times talks of the harm in these terms. n197 In the absence of some further argument that a lost opportunity is not a harm, the rights criticism cannot succeed in confining compensation to the standard of living in the state of nature.
b. The Objections That Nonappropriators Should Not Share in the Benefits of Economic Development. -- Here the argument shifts to the second and third objections to my theory of the measure of compensation. The second objection is simply that a measure of compensation larger than that provided by setting the baseline in the state of nature amounts to "talent pooling." It violates liberty by using the talents of some people for the benefit of others. This objection, as stated, is clearly inadequate; it begs the question. The talents of some are illegitimately used for the benefit of others only if the measure of compensation is excessive. If the measure of compensation is correct, then owners of property are merely paying what is due. The critic must have an independent argument concerning the proper level of compensation. n198
The third objection to my theory of compensation is an elaboration of the second objection, but it merits further discussion. According to this objection, a measure of compensation set above the standard of living in the state of nature unfairly gives the current least advantaged the benefit of the general economic development that has occurred since property was appropriated. Economic development resulted from the talent and effort of many people, and the current disadvantaged have no claim on the extra value thereby created.
The impression that, unlike everyone else, the current least advantaged are free riders is misleading. Economic development is a public good; it is a positive externality of the everyday economic behavior of the community. It affects everyone: we are all free riders. The current holders of all property rely on these past efforts; even those who create new property -- poems, scientific discoveries -- do not do so solely on their own efforts. We rely on the tradition handed down to us. We all "stand on the shoulders of giants." The advantaged -- those with property -- reap the benefits of this public good much more than do the disadvantaged. Refusing to let the disadvantaged take account of economic development in measuring their compensation thus does not treat them the [*412] same as everyone else; it marks them off for special, negative treatment. It deprives them, and no one else, of the common heritage of humankind.
Furthermore, the objection based on general economic development tacitly assumes an unworkable theory of value. It attempts to attribute all the extra value in the economy that has arisen since we left the state of nature to the talent and effort of individuals. In other words, it assumes a labor theory of value. Each plot of land and each lump of gold ore had a value in the state of nature, and the subsequent rise in value can be attributed to the labor (the talent and effort) of others. Although the labor theory of value was once a staple of bourgeois, as well as Marxist, economics, n199 it is now widely disparaged. n200 Nozick, for one, treats it contemptuously. n201 Value is now widely thought to be determined by various social factors like consumer demand, and not by the amount of labor.
The idea that each thing has some inherent value in the state of nature before it is transformed by labor is also troubling. The basic problem is that value is dependent on, among other things, the basic structure of social relations, such as the existence of a private property system, the conditions on appropriation and transfer of property, and the measure of compensation that property owners must pay. Hillel Steiner''s observation that compensation cannot be measured by market prices because market prices are relative to a scheme of compensation is applicable to the notion of value used here. n202
The attribution of all the increase in value of a plot of land over the use value it had in the state of nature to subsequent efforts of others is an attempt to deny any value to the nonappropriator''s lost opportunities. But the value of any piece of productive property is determined not only by what it is producing now, but by what income it will generate in the future. Indeed, efficient market theorists believe that current market prices already take into account the best prediction of the stream of income that the property will generate in the future, discounted to present value. n203
In the transformation of the state of nature through appropriation, the nonappropriator loses numerous opportunities. She loses the opportunity [*413] to remain in the state of nature and live off the land. She loses the opportunity to appropriate, and thus loses the stream of income that appropriation would generate. She loses the opportunity to join with others and exploit the natural resources collectively, and share in whatever wealth is thereby generated. Measuring compensation by means of the standard of living in the state of nature only compensates her for the first lost opportunity. Compensation for the second or third lost opportunity involves payment out of the excess gained by the talents and efforts of others, because without depriving her of the opportunity to use her talents, others would not have had the opportunity to use their talents. Surely, the forgone opportunity (or the "rights violation") has some value, and so the state of nature measure cannot be correct. The theories of rights violations canvassed earlier n204 suggest that the level of compensation should be a "fair share" of economic advantage, or the hypothetical bargain the appropriators and nonappropriators would have reached.
Before attempting to specify the level of compensation more precisely, one last objection remains to be cleared away. A critic could argue that lost opportunities should not be taken into account because it is the possibility of appropriation itself which gives rise to the lost opportunity. If no one can appropriate, there is no lost opportunity. n205 The critic could argue that the nonappropriator lost no right or power that could have been exercised had the land remained in the state of nature other than the right to use the fruits of the land -- to pick fruit and drink water from the streams. Thus, compensation measured by the standard of living in the state of nature is all that is morally required.
The flaw in this argument is that it provides no reason why we should think that anyone has the right to be an appropriator without sharing the benefits of appropriation with those who could not appropriate. There can be no theory of consent on the part of nonappropriators; no one now living has had the chance to appropriate so there is nothing to relinquish. Even if you do not believe that the nonappropriators had property rights which were taken from them, their freedom of movement and action was circumscribed as a result of the appropriators. If someone, for his own gain, takes away part of another''s freedom, how can he not owe part of that gain as compensation?

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