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John Stick:TURNING RAWLS INTO NOZICK AND BACK AGAIN(二)

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3. The Proper Measure of Compensation. -- The proper measure of compensation is, however, a more difficult problem. There are two general approaches. We can ask what hypothetical bargain the appropriators [*414] and nonappropriators would have struck. n206 Another approach is to search for some hypothetical society, in which the property is appropriated in such a way as to give all people a fair share in the economic development of the society. n207 For example, the value of the lost opportunity to develop the society's assets communally could be measured by treating a hypothetical fair communal society as the baseline. If the group can exploit the resource while still owning it in common, the extra value attributable to private ownership is only the difference between its value in private exploitation and its value in group exploitation, not the difference between its value in private exploitation and its value lying fallow.
Our immediate problem with this insight is that it does not describe an individual hypothetical society, it describes a whole group of hypothetical societies. Even if we can determine a unique starting point -- the point in our past when acquisition of natural resources triggered the Proviso -- there are still innumerable ways a society could develop from that point without allowing total acquisition of private property in natural resources. Centrally managed command economies, decentralized market socialist economies, tribal economies, feudal economies, and mixtures of any of these with limited forms of private property in natural resources are among the innumerable forms of economic organization possible, even though total division of natural resources into private property is ruled out. Which should be selected as the baseline?
Two principles can be used to pick out the baseline. First, Nozick believes in a set of rights aside from the property rights subject to the Proviso. n208 Since these rights are not subject to the Proviso, they form a restraint on any just society. Our baseline society must embody these rights and any economic arrangements that are not compatible with these rights need not be considered in constructing the baseline. Second, we need a principle that selects, from the hypothetical societies remaining, the hypothetical society that will constitute the baseline.
Certainly we can rule out some basic structures. If any structure is unjust, even if productive, the propertiless would have no right to adopt such a structure, and so their compensation right could not take any potential income from it into account. If the number of just societies were limited to a very few, or if they all had similar characteristics relevant to selecting a baseline, our compensation right might be determined by application of the proper theory of justice for cooperative social enterprises.
[*415] It should now have become apparent that we are very close to Rawls' starting point. If there are principles of justice that determine the basic structure of institutions in a cooperative endeavor, the propertiless are due whatever compensation is necessary to raise them to the level of the least well off in such a just, cooperative endeavor based on the resources of the current society. If Rawls' arguments are correct, the measure of the propertiless people's claims is the difference principle. If Rawls is incorrect, some other principle, such as a hedged utilitarianism, would set the baseline.
Note that we are not now in the same place as we started, nor even in the exact same place Rawls started. We began, with Nozick, with a partial theory of justice that concerned only property rights, which are a part of the set of principles needed to determine the basic structure of society. n209 We assumed, with Nozick, that these property rights were individualistic except to the extent of the Lockean Proviso, and that the rights were to be established by appeal to intuition. n210 We are now at a point where we see that the full interpretation of the Proviso requires a theory of the just use of shared assets in a cooperative venture. We are no longer at Nozick's starting point because we are looking for principles of just cooperation rather than principles of maximum individual freedom. We are not quite at Rawls' starting point because we are looking for the principle of justice for a group involved in a cooperative venture, and not for principles of justice for society per se. Also, we are constricted by a theory of nonproperty rights which is prior to our account of the fair ground rules of a cooperative venture.
The choice of the baseline society is in several ways similar to the choice of the second principle of justice from the original position. The choice is not easy and plausible arguments can be made for alternative distributional principles -- such as utilitarianism. The decision would be determined if the least advantaged in a society that collectively owned property had a moral right to have property managed to their advantage. Another plausible interpretation would be that the property managers had a utilitarian duty to maximize wealth from the commonly owned assets. The argument for the selection of the proper principle of distribution of wealth flowing from collectively held property could be as involved as (indeed could be identical to) the argument in Rawls' A Theory of Justice. In one way, the argument for the difference principle is easier to make from Locke's Proviso than from the original position. The special position of the least advantaged is not as easily established in the original position, but under Locke's Proviso the least advantaged are naturally the focus of attention, since they were harmed by appropriation of property.
[*416] IV. CONCLUSION
Several morals may be drawn from this demonstration. I hope that I have convincingly demonstrated that Rawls and Nozick do not advance incommensurable theories. Each can advance his own position using the resources of the other's starting point. The success of either is dependent on the strength of their arguments as they would be evaluated in political discourse generally. There is no magic to either's method of argument that excludes the concerns of the other.
More precisely, criticizing Rawls for choosing a methodology that ignores personal desert, personal history, or the absolute nature of individual rights misses the mark. The point has been made that Rawls gives an account of each of these: personal desert and history are reflected in the job that one achieves only in fair competition and the income that the job provides; individual rights take precedence over distribution of wealth through the lexical nature of the two principles of justice. Rawls may not give the best account of any of these, but he does not ignore them. This Article demonstrates that the features of Rawls' theory that Nozick criticizes must also be faced by Nozick within his own theory.
Moreover, Nozick's typology of historical principles of justice and end-state principles of justice is clearly inadequate: a full theory of justice has both, and so do the theories of Nozick and Rawls. The more the end-result portion of Nozick's theory -- the Lockean Proviso -- is examined, the more its great significance for his theory is apparent, and the more it seems that a proper interpretation of Nozick's theory looks much like Rawls' theory.
The most illuminating feature of the argument from Nozick's theory of property is how quickly such a seemingly small equitable exception to a simple scheme of individual property rights embroils one in so many of the issues at the heart of Rawls' theory of justice. Even if my particular resolution of the issues is not followed, Nozick's theory of property cannot be fully explained without addressing such issues. Although the argument concerning the proper interpretation of Nozick's theory of property is not a separate and full argument for Rawls' theory, I think that the argument helps one appreciate the extraordinary depth of Rawls' accomplishment. Many parts of his theory, from the use of primary goods, to his denial of the importance of individual desert, to his emphasis on the plight of the disadvantaged, are at least partially vindicated by their emergence in this very different derivation of principles of justice similar to Rawls' two principles of justice.



FOOTNOTES:





n1 See generally A. MacINTYRE, AFTER VIRTUE 244-52 (2d ed. 1984); R. NOZICK, ANARCHY, STATE, AND UTOPIA (1974); J. RAWLS, A THEORY OF JUSTICE (1971).





n2 Rawls argues for his theory of justice using a hypothetical situation of equality where individuals would jointly choose the principles which will regulate society. This hypothetical situation, which Rawls calls the original position, is the counterpart to the state of nature in social contract theory. Rawls designs the original position to embody our common sense notions of unbiased moral reasoning. He attempts to demonstrate that in the original position, only his theory of justice could be chosen. See J. RAWLS, supra note 1, at 11-12, 17-22; see also infra text accompanying notes 17-23.





n3 As Nozick describes it, Rawls has designed the original position so that end-result principles of justice are fundamental, and entitlement theories like Nozick's cannot be selected. R. NOZICK, supra note 1, at 198-204.





n4 A. MacINTYRE, supra note 1, at 244-52.





n5 The only previous attempt in the legal literature to systematically compare and assess Rawls' and Nozick's theories of property and redistribution of wealth is Grey, Property and Need: The Welfare State and Theories of Distributive Justice, 28 STAN. L. REV. 877 (1976).





n6 Rawls' influence on liberal constitutional theory has never been doubted. See, e.g., D. RICHARDS, THE MORAL CRITICISM OF LAW (1977); Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933 (1983); Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 4 n.18, 6, 28 n.153, 61 n.342 (1977); Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 14-16 (1969).





n7 Okun, Further Thoughts on Equality and Efficiency, excerpted in M. McINTYRE, F. SANDER & D. WESTFALL, READINGS IN FEDERAL TAXATION 77, 81-82 (2d ed. 1983); see also Feldstein, On the Theory of Tax Reform, 6 J. PUB. ECON. 77 (1976). For a discussion of Rawls' impact on tax legislation in the 1970s, see Comment, Implementing Policy Objectives in the Taxation of Deferred Compensation Arrangements, 1978 DUKE L.J. 1460. For a use of Rawls in tax analysis, see Graetz, Legal Transactions: The Case of Retroactivity in Income Tax Revision, 126 U. PA. L. REV. 47 (1977); see also Graetz, To Praise the Estate Tax, Not to Bury It, 93 YALE L.J. 259 (1983) (criticizing Nozick on taxation).





n8 See Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659; Radin, Property and Personhood, 34 STAN. L. REV. 957, 989 n.110 (1982).





n9 Van Alstyne's account of Locke's theory of strong property rights follows Nozick's libertarian misreading of Locke. See Van Alstyne, The Recrudescence of Property Rights as the Foremost Principle of Civil Liberties: The First Decade of the Burger Court, 43 LAW & CONTEMP. PROBS. 66, 79-82 (Summer 1980) (analysis of the "re-emergence" of Locke in the allocation of civil liberties); infra note 125; see also Radin, supra note 8, at 988-89 n.109.





n10 Richard Epstein admits that the theory of property that underlies his approach to the takings clause has many similarties to Nozick's theory of property. R. EPSTEIN, TAKINGS 334 (1985); accord Paul, Searching for the Status Quo, 7 CARDOZO L. REV. 743, 748 n.25 (1986) ("Epstein in large part adopts Robert Nozick's natural rights scheme."). Epstein's theory, as he describes it, is more Lockean than Nozickian, R. EPSTEIN, supra, at 10, but Epstein clearly misreads Locke as a possession theorist rather than a labor theorist. See Note, Richard Epstein on the Foundations of Takings Jurisprudence, 99 HARV. L. REV. 791, 797-808 (1986); see also infra note 129.





n11 See Epstein, Possession as the Root of Title, 13 GA. L. REV. 1221 (1979) (attempting to develop a variant of Locke's theory even more libertarian than Nozick's); Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73 (1985).





n12 Rawls gives a short introduction to his theory in the first few sections of his book. See J. RAWLS, supra note 1, at 3-22. Two monographs by prominent political philosophers that attempt, in part, to explicate Rawls for the general reader are B. BARRY, THE LIBERAL THEORY OF JUSTICE (1973); R. WOLFF, UNDERSTANDING RAWLS (1977). The best short summary of Rawls I know is given by Allen Buchanan. See A. BUCHANAN, MARX AND JUSTICE 103-21 (1982). Also useful are two collections of articles, JOHN RAWLS'S THEORY OF SOCIAL JUSTICE (H. Blacker & E. Smith eds. 1980); READING RAWLS (N. Daniels ed. 1975). Of particular interest for the topic of this article is R. MARTIN, RAWLS AND RIGHTS (1985).





n13 J. RAWLS, supra note 1, at 7. Illustrative major economic and social institutions include "competitive markets, private property in the means of production, and the monogamous family." Id. Illustrative social goods include wealth and income, self-respect, food and property, power and social position. The duties distributed by the basic structure include the legal restraints on free activity usual to a complex society, including a duty to pay partially redistributive taxes. See A. BUCHANAN, supra note 12, at 105.





n14 Rawls, The Basic Liberties and Their Priority, in 3 THE TANNER LECTURES ON HUMAN VALUES 1, 5 (S. McMurrin ed. 1982). In Rawls' book A Theory of Justice, the first principle read slightly differently: "Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all." J. RAWLS, supra note 1, at 250, 302.





n15 J. RAWLS, supra note 1, at 302.





n16 Id. at 61-63.





n17 Considered judgments are not mere intuitions, but judgments of which we are most certain, and seem under the circumstances to be least swayed by bias, prejudice, or excessive concern for our own interests. Id. at 47-48.





n18 See infra note 21 and accompanying text.





n19 Some philosophers praise Rawls' theory for its beauty and elegance as a theory. For example, Nozick states "it is impossible to finish [Rawls'] book without a new and inspiring vision of what a moral theory may attempt to do and unite; of how beautiful a whole theory can be." R. NOZICK, supra note 1, at 183 (emphasis in original). Others find Rawls' description of the just society more noble and attractive than competing accounts.
The tripartite explanation of Rawls' work in the text is similar to that used by A. BUCHANAN, supra note 12, at 111-20.





n20 The original position should be contrasted with the first method of justification, which uses our considered judgments about what substantive outcomes are just: Does justice require freedom of speech or an equal division of wealth? The original position embodies considered judgments of a different kind, concerning the proper methods of moral choice.





n21 J. RAWLS, supra note 1, at 115. The first element, the rational motivation of the parties, specifies the motive for the choice of principles in the original position. The parties are assumed to be rationally self-interested, and unmoved by envy or pity. Rawls also assumes each party represents a family rather than an individual, so that the interests of the succeeding generation are taken into account. Id. at 142-50.
The second element, the veil of ignorance, is meant to ensure that the principles chosen are not colored by bias or prejudice for or against particular individuals or groups. Rawls assumes individuals in the original position do not remember their own personal histories or characteristics. Otherwise, the parties would bargain self-interestedly for principles that favored them personally. Id at 136-42.
The third element, the formal constraints of the concept of right, ensures that the principles chosen can fulfill their role. The principles must be general, universal, public, able to decide all competing claims, and final. Id. at 130-35.
The fourth element, a list of competing principles of justice, is necessary to keep the argument in the original position from becoming interminable. Rawls presents a list of traditional theories of justice, including varieties of utilitarianism, perfectionism, and intuitionism, and compares them to his own two principles. Id. at 122-26.





n22 Id. at 195-201. For a general explanation in the legal literature, see Flynn & Ruffinengo, Distributive Justice: Some Institutional Implication[s] of Rawls' A Theory of Justice, 1975 UTAH L. REV. 123, 140-46.





n23 J. RAWLS, supra note 1, at 199.





n24 See R. NOZICK, supra note 1, at 167-73.





n25 Nozick could challenge Rawls at an even more fundamental level and claim that any use of the original position violates Rawls' fundamental methodology of reflective equilibrium. Nozick indeed does raise such an issue when he argues that our intuitions about what is just are much more clear in simple interpersonal situations than when looking at society as a whole. R. NOZICK, supra note 1, at 204-05; see also T. BENDITT, RIGHTS 67 (1982). But most of Nozick's arguments against Rawls do not proceed at so basic a level. I argue below that Nozick can advance his theory of property rights while accepting much more of Rawls' theory.





n26 According to Nozick, a principle for the distribution of some good is a "patterned" principle if it determines a person's share on the basis of some set of characteristics of that person, such as moral merit, need, usefulness to society, talent, or effort. R. NOZICK, supra note 1, at 156. The alternative to patterned principles of justice are entitlement principles. Id. at 157. Under an entitlement theory, a person's share is determined by her history: what she has done to create entitlements to particular pieces of property. Nozick believes that the participants in the original position have forgotten their personal histories in accordance with the veil of ignorance and therefore will distribute all property according to some pattern, as if the property were previously unowned.





n27 The principle of average utility would require society to maximize the average utility per person, not the total amount of utility. See J. RAWLS, supra note 1, at 161-75.





n28 Id. at 61.





n29 Rawls does discuss at some length later in the book a few particular liberties, such as an equal liberty of conscience. Id. at 205-11. What Rawls refers to as liberty of conscience is protected in the United States Constitution by the freedom of speech and freedom of religion clauses of the first amendment.





n30 Id. at 197, 201.





n31 Rawls believes that the institution of the market is necessary for a just society. The employment market allows "for the free choice of occupation and of one's place of work," id. at 271, and is thus consistent with fair equality of opportunity and equal liberties, id. at 272. Both capitalist and market socialist economies fulfill this condition. Rawls believes that the political traditions of each particular country are likely to determine which of these arrangements will best fulfill the requirements of justice for that society. Id. at 270-74.





n32 See Hart, Rawls on Liberty and Its Priority, 40 U. CHI. L. REV. 534, 542-55 (1973), reprinted in READING RAWLS, supra note 12, at 230, 239-52.





n33 Rawls, supra note 14, at 13-87.





n34 Id. at 12. Rawls' complete statement is as follows:
For example, among the basic liberties of a person is the right to hold and to have the exclusive use of personal property. The role of this liberty is 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. Two wider conceptions of the right of property as a basic liberty are to be avoided. One conception extends this right to include certain rights of acquisition and bequest, as well as the right to own means of production and natural resources. On the other conception, the right of property includes the equal right to participate in the control of means of production and natural resources, which are to be socially owned. These wider conceptions are not used because they cannot, I think, be accounted for as necessary for the development and exercise of the moral powers. The merits of these and other conceptions of the right of property are decided at later stages when much more information about a society's circumstances and historical traditions is available.





Id. (citation omitted).





n35 See id. at 13-39; see also infra notes 44-59 and accompanying text.





n36 See Rawls, supra note 14, at 53-54.





n37 "Justice as fairness" is the name Rawls assigns to this theory of justice. See J. RAWLS, supra note 1, at 11.





n38 Id.





n39 Id. at 270-74, 280-82. Recall that the veil of ignorance protecting the participants in the original position is partially lifted at each stage of the deliberations.





n40 Id.





n41 Rawls, supra note 14, at 53-54.





n42 Id. at 54.





n43 Rawls would not agree with the statement in the text. He believes that "in a constitutional democracy the public conception of justice should be, so far as possible, independent of controversial philosophical and religious doctrines." Rawls, Justice as Fairness, Political Not Metaphysical, 14 PHIL. & PUB. AFF. 223, 223 (1985). Rawls' theory is deeply liberal in its attempt to find a common ground of relatively uncontroversial principles to which everyone can agree, a common ground that includes a toleration of others' more particular political and religious beliefs. But the existence of such a common ground must be demonstrated; it cannot be assumed a priori. If Nozick on the one side, or socialists on the other, can make strongly persuasive arguments from the original position that their theory of property is required in a just society, then the common ground Rawls desires might not exist. Surely such arguments cannot just be ruled out of order if the original position is to provide justification to the principles of justice it selects. The controversial nature of the theories can be weighed against the principles, but that is all.





n44 For a general account of these arguments similar to that given in the text, see R. MARTIN, supra note 12, at 46-52.





n45 J. Rawls, supra note 14, at 14.





n46 Id. at 15.





n47 Rawls discusses historical antecedents to his theory in id. at 11.





n48 Id. at 16. "[T]he capacity for a sense of justice is the capacity to understand, to apply and normally be moved by an effective desire to act from (and not merely in accordance with) the principles of justice as the fair terms of social cooperation." Id.





n49 Id.
The capacity for a conception of the good is the capacity to form, to revise, and rationally to pursue such a conception, that is, a conception of what we regard for us as a worthwhile human life. A conception of the good normally consists of a determinate scheme of final ends and aims, and of desires that certain persons and associations, as objects of attachments and loyalties, should flourish. Also included in such a conception is a view of our relation to the world -- religious, philosophical or moral -- by reference to which these ends and attachments are understood.
Id.





n50 Id.





n51 Id. at 17.





n52 See supra text accomanying note 28.





n53 Rawls, supra note 14, at 22-23.





n54 Id. at 24.





n55 Id. at 24-25. Without liberty of conscience as a basic right, a participant in the original position could not be sure of her freedom to hold her most basic religious or moral beliefs. Id. Also, the ability to fully and deliberately examine our own way of life requires the constant exercise of our powers of reason and moral judgment that is possible only in a culture where there is liberty of conscience. Id. at 27-28.





n56 R. MARTIN, supra note 12, at 50-51.





n57 Rawls, supra note 14, at 32-34.





n58 R. MARTIN, supra note 12, at 58-59.





n59 Rawls, supra note 14, at 12.





n60 For a complete argument that property is necessary for the full development of the human personality, see Radin, supra note 8. Radin would not think that this argument for property supports the full Nozickian theory of property rights, but Nozick would be free to try to extend the argument.





n61 But remember those hoary old stories of workers commenting on someone else rising through the ranks to become a tycoon and saying, "It makes me proud to be an American." The prospect of possible future advancement can be just as strong a basis for self-respect as present equality, or so Nozick could argue.





n62 For example, Nozick argues that patterned principles of justice may require the prohibition of gifts, even among family members, R. NOZICK, supra note 1, at 167, as well as the prohibition of emigration, id. at 173.





n63 Nozick imagines a country with a pre-determined distribution of wealth where Wilt Chamberlain, being much in demand as a basketball player, signs a contract with a basketball team to receive twenty-five cents for each spectator who comes to see him play. Wilt's play is spectacular, a million fans attend, Wilt earns $ 250,000, and the patterned distribution of wealth is destroyed. Nozick asks whether the transfer of wealth is unjust, and whether any attempt by the state to prevent such transfers does not infringe on the liberty of Wilt and the spectators. R. NOZICK, supra note 1, at 161-64.





n64 Charles Lindbloom very ably gives the empirical basis for this argument. See C. LINDBLOM, POLITICS AND MARKETS 161-233 (1977). For more recent discussions, see the work of Joel Rogers and his collaborators, especially J. COHEN & J. ROGERS, ON DEMOCRACY (1983); T. FERGUSON & J. ROGERS, RIGHT TURN (1986). Also of great interest is T. EDSALL, THE NEW POLITICS OF INEQUALITY (1984).





n65 Perhaps the distribution of power, like the distribution of income, should be subject to the difference principle. Rawls suggests as much at various places. See, e.g., J. RAWLS, supra note 1, at 92 (listing powers and opportunities among the primary goods). However, he does not elaborate the idea when discussing the social structure.





n66 Nozick can even make classical republican arguments that distributions of wealth by the government corrupts those who receive it, creates dependence on certain parties and governmental officials, and thus subverts the political system. See J. POCOCK, POLITICS, LANGUAGE AND TIME 90-93 (1971).





n67 Rawls, supra note 14, at 40-43.





n68 Id. at 42.





n69 Id. at 42-43; see R. MARTIN, supra note 12, at 58-59.





n70 For discussions of the United States government's huge impact on the marketplace of ideas, see M. YUDOF, WHEN GOVERNMENT SPEAKS (1983); Shiffrin, Government Speech, 27 UCLA L. REV. 565 (1980).





n71 For an extended discussion of the protection of property rights under the Constitution, see Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U. PA. L. REV. 741 (1986).





n72 See Scanlon, Nozick on Rights, Liberty, and Property, 6 PHIL. & PUB. AFF. 3 (1976), reprinted in READING NOZICK (J. Paul ed. 1981) at 107; Thomson, Some Ruminations on Rights, 19 ARIZ. L. REV. 45 (1977), reprinted in READING NOZICK, supra, at 130.





n73 Accord Nagel, Libertarianism Without Foundations, in READING NOZICK, supra note 72, at 191-93.





n74 I follow Thomas Grey in believing that the intuitive appeal of strong property rights has dissipated with the change in our conception of property from thing-ownership to bundle-of-rights. See Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 76-82 (1980). This belief generally supports Rawls' remarks on property. See id. at 85 n.41.





n75 R. NOZICK, supra note 1, at 198-99.





n76 Id. at 153-55.





n77 Id. at 155.





n78 Id. at 198.





n79 Id. at 198-203.





n80 Id. at 153.





n81 The only other means to preserving patterns that Nozick discusses are inalienability rules, which are even more restrictive of liberty. See id. at 160-64. The seminal article discussing the relationship between inalienability rules and other property rules is Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).





n82 R. NOZICK, supra note 1, at 198-205.





n83 Eric Mack interprets Hillel Steiner as holding the "view that any coherent historical conception must employ an end-state principle for specifying initial titles." Mack, Distributive Justice and the Tensions of Lockeanism, SOC. PHIL. & POL'Y, Autumn 1983, at 132, 140-41 (emphasis in original). This Article expands the necessary role of ahistorical (if not end-state) principles.





n84 See Rawls, The Basic Structure as Subject, in VALUES AND MORALS 47, 64-65 (A. Goldman & J. Kim eds. 1978).





n85 R. NOZICK, supra note 1, at 198-99 (emphasis in original).





n86 Id. at 199. A pure act-utilitarian cannot legislate if the legislative product is a true rule rather than a bill of attainder. Thus an act-utilitarian theory of justice must be embarrassingly silent about legislation, although an act-utilitarian theory of adjudication (which would be reminiscent of realism) is possible.





n87 Id.





n88 This assumes we are designing the social system afresh, and are not discussing the equity of making changes in an existing institution. Rawls explicitly states he is discussing ideal theory and not questions of transition and implementation, which are part of what he calls partial compliance theory. See J. RAWLS, supra note 1, at 8-9.





n89 For a more complete discussion showing that Nozick cannot maintain any interpretation of "end-result" under which the difference principle is an end-result principle while Nozick's version of the Lockean Proviso is not an end-result principle, see Kuflick, Process and End-State in the Theory of Economic Justice, 8 SOC. THEORY & PRAC. 73 (1982).





n90 See Bogart, Lockean Provisos and State of Nature Theories, 95 ETHICS 828, 833 (1985).





n91 R. NOZICK, supra note 1, at 160-64. For an excellent critique of Nozick on this point, see Cohen, Robert Nozick and Wilt Chamberlain, in JUSTICE AND ECONOMIC DISTRIBUTION 246-60 (J. Arthur & W. Shaw eds. 1978).





n92 R. NOZICK, supra note 1, at 167-74.





n93 Even when the tax rules are changed, their effect is always prospective, and transition rules are used to minimize the effect on the previously made long-term plans of taxpayers. However, major tax reforms do inevitably impose costs on some taxpayers who formed long-term plans in reliance on the previous rules. But Nozick is not basing his argument on these reliance costs.





n94 Nozick's critique is ahistorical because it is based on his objections to redistribution, and the very notion of redistribution appeals to an ideal scheme of distribution (or of a set of property rules different from the presently existing ones) which is ahistorical. To say a tax is redistributive is to appeal to some prior distribution. But the tax rules, like the other property rules, are just part of the whole legal system. The amount paid in taxes never historically belonged to the individual, it belonged to the government from the time the individual made the income that gave rise to the liability. The situation is the same as exists in a partnership with an active partner and passive partner: a portion of the profits belongs to the passive partner from the moment it is earned, even though the profits may be in the possession of the active partner. The quarterly payment of the passive partner's share of the profits is not a redistribution, but a distribution of the passive partner's own property. To label the tax a redistribution is to appeal to some prior rightful distribution -- and the rightfulness of this prior distribution (all income belongs to the earner) must be justified not on grounds of history but on grounds of moral principles of distribution, or of moral rules of property.





n95 Many commentators follow Nozick in making this mistake. See, e.g., R. DWORKIN, LAW'S EMPIRE 298 (1986).





n96 See R. NOZICK, supra note 1, at 163.





n97 Such an ad hoc system of property rights is just barely possible. Suppose all decisions involving property law were made by judges based on some end-result notion, such as wealth maximization, rather than on the basis of social rules. Let us call such a theory an act-end-result theory instead of a rule-end-result theory. Act-end-result schemes of law are theoretically possible, but rarely advocated. Yet the standard criticism of end-result theories by Nozick and others, such as Eric Mack, always seem to hold act-end-result theories as primary. See Mack, supra note 83, at 147.





n98 See Nagel, supra note 73, at 192-93.





n99 See R. NOZICK, supra note 1, at 213 (citing J. RAWLS, supra note 1, at 72).





n100 J. RAWLS, supra note 1, at 72.





n101 See id.





n102 J. RAWLS, supra note 1, at 72, quoted in R. NOZICK, supra note 1, at 213.





n103 See J. RAWLS, supra note 1, at 74.





n104 Id. at 104.





n105 Id.





n106 See R. POSNER, THE ECONOMICS OF JUSTICE 76 (1983); Grey, Property and Need: The Welfare State and Theories of Distributive Justice, 28 STAN. L. REV. 877, 883-85 (1976); Kronman, Talent Pooling, in NOMOS XXIII: HUMAN RIGHTS 58-79 (1981). A more general discussion of Rawls' attempt to nullify the accidents of natural endowment is Gorr, Rawls on Natural Endowment, 33 PHIL. Q. 1 (1983). Gorr concludes that Rawls' position on natural inequality is among the most fundamental principles in Rawls' theory, id. at 2, and yet it is a "strongly counter-intuitive" principle for which Rawls provides no clear and convincing argument, id. at 13-14. The analysis that follows in the text attempts to show how Rawls could avoid this entire controversy at no cost to his theory. A general discussion of this aspect of Rawls' theory that is closer to the account given by this Article is R. MARTIN, supra note 12, at 76-81, 162-69. For a more detailed discussion of Martin's analysis, see notes 110 & 114 infra.





n107 R. NOZICK, supra note 1, at 214.





n108 Id. at 215.





n109 Id. at 216-27.





n110 Id. at 228. Rex Martin argues that Rawls treats the distribution of natural talents, and not the talents themselves, as the collective asset. R. MARTIN, supra note 12, at 77. I think the argument made below better develops the insight behind Nozick's remark. See infra text accompanying notes 112-120. Martin also believes Rawls' collective asset discussion is derivative of his views on equality of opportunity, instead of being the central inspiration of his theory of distribution, as suggested by Gorr, supra note 106. My argument on this point is similar to Martin's.





n111 R. NOZICK, supra note 1, at 228. Rawls criticizes utilitarianism for treating all satisfaction as fungible, so that each person's satisfaction can offset someone else's dissatisfaction. Utilitarians never consider the separateness of individuals. They add up pleasure and pain as if the sensations were all felt by just one person making a rational choice. See J. RAWLS, supra note 1, at 26-27. This allows society to use some people solely as the means to others' satisfaction. Nozick suggests that the notion of a pool of collective assets falls prey to the same criticism: society treats each talent as a resource to be exploited independently of the will of the person who possesses it. But when stated in this bold fashion, the argument overreaches. Rawls never suggests in his description of the application of his two principles of justice that anyone will be forced to use her talents in particular jobs. People are guided to use their talents in the service of society only by incentives, just as in Nozick's free market model.





n112 The best general exploration of the talent pooling argument is Kronman, supra note 106; see also R. MARTIN, supra note 12, at 76-81.





n113 Kronman provides arguments in defense of Rawls that assume a person deserves the natural endowment or asset itself, and not just the reward socially assigned to that asset. See Kronman, supra note 106. I suggest that this focus on the personal characteristics themselves by both Rawls' critics and defenders is misguided. Kronman generates an argument for talent pooling by attributing to Rawls an Aristotelian theory that happiness is an intrinsic good, and so any principle of distribution of possibilities for happiness among individuals must point to "some morally relevant characteristic of the individuals involved" to justify the precise distribution. Id. at 63. Kronman's explanation unnecessarily complicates Rawls' theory. It requires appeals to an intrinsic good beyond Rawls' explanation of his thin theory of the good. J. RAWLS, supra note 1, at 395-99. It also requires attention to the distribution of happiness, as well as the distribution of primary goods, even though Rawls adopted the notion of primary goods to avoid the difficulties of interpersonal comparisons of happiness or pleasure. Id. at 90-95.





n114 The distinction made in the text between entitlement and desert is similar to the analysis of Joel Feinberg, who associates entitlement with a claim of right according to rules and desert with a general sense of moral worthiness that is not bound by specific rules. See J. FEINBERG, DOING AND DESERVING 56-57 (1970). Rex Martin also uses the desert-entitlement distinction in discussing the talent pooling argument, although he uses the distinction somewhat differently. See R. MARTIN, supra note 12, at 166-67.





n115 More precisely, entitlements can be used to criticize some social rules only from the standpoint of other social rules. Because Rawls attempts to explicate the moral origin of all social rules, criticisms based on entitlements cannot arise.





n116 The closest Rawls comes to giving the argument in the text is when he points out that the design of the basic structure "determines in large part the kind of persons" members of society become. Rawls, supra note 84, at 55. The point of this observation is that an individual's claims to that which flows from her talents can at most be claims of entitlement, not desert. But Rawls does not take the further step of pointing out that the reward for any particular talent is also dependent upon the choice of the basic structure. Rex Martin also comes close to making the argument in the text, but does not fully set it out. See R. MARTIN, supra note 12, at 164-66. Finally, Michael Sandel recognizes the issue, see M. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 76 (1982), but does not see how it enables a Rawlsian to counter Nozick's criticism.





n117 The argument in the text assumes that whether a personal characteristic is deserving of social reward is relative to the choice of the basic structure of society. A partial exception should probably be made for personal disabilities: physical and mental handicaps seem disadvantageous in almost all societies. The talent pooling argument thus seems most relevant in a Rawlsian framework to a question Rawls does not address at length -- what are societies' duties to the handicapped and those unable to work? Kronman points out that talent pooling applies to disabilities as well as abilities, Kronman, supra note 106, at 59, 67, but the most complete discussion of this area from a Rawlsian perspective can be found in Michelman, Constitutional Welfare Rights and A Theory of Justice, in READING RAWLS, supra note 12, at 319; Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REV. 962 (1973) [hereinafter Michelman, One View].





n118 Much of the confusion over talent pooling stems from the practice by both critics and defenders of Rawls to identify talent pooling with taxation. See C. FRIED, RIGHT AND WRONG 134, 143-47 (1978) (critic); Kronman, supra note 106, at 66 (defender). Rawls is partially responsible for the confusion, since he identifies the system of taxation as the primary means of protecting the social minimum. See J. RAWLS, supra note 1, at 276-80. But the genius behind Rawls' central insight -- that justice is a matter of designing the basic structure of society -- is that the basic structure set by property law, contract law, and corporate law, determines a general pattern of distribution and so it must be evaluated on its distributive effects. The basic structure, aside from taxation, sets the general pattern of what talent the society rewards and in what degree. Taxation only has a secondary effect.
Rawls does not fully grasp the consequences of this insight. Among the various rules that set the basic structure of society, he makes a significant distinction between the social rules that "define the social background" and those "that continually adjust and compensate for the inevitable tendencies away from background fairness." Rawls, supra note 84, at 54. Rawls emphasizes the "division of labor" between these two types of rules, instead of down-playing it, because he does not fully realize the strong interrelationship between the rules defining the social background and the distribution of wealth. For an illustrative discussion of the interrelationship of distributional factors and one part of the social background, the law of contract, see Kronman, Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980).





n119 G.A. Cohen incisively explores the use of arguments concerning ownership of one's talents in the context of state of nature theories. See Cohen, Self-Ownership, World Ownership and Equality: Part II, SOC. PHIL. & POL'Y, Spring 1986, at 77.





n120 G.A. Cohen makes this point. See Cohen, Self-Ownership, World Ownership and Equality [Part I], in JUSTICE AND EQUALITY HERE AND NOW 108, 133-34 & n.37 (F. Lucash ed. 1986). This confuses many critics of Rawls who construe the original position as a two-party bargaining situation where the talented and untalented dicker over their respective shares of the social product. The notion of talent is relative to the basic structure of society, and so the identity of the most and least talented will change, depending on which principles of justice are selected.





n121 Many critics of Rawls metaphorically compare talent pooling with slavery or forced labor. See, e.g., C. FRIED, supra note 118, at 144-47. The naturally advantaged are supposedly forced to use their greater talents for society: the image is a great concert pianist chained to her piano although she would rather be farming. It should be apparent that this is a misinterpretation of Rawls, who uses incentives such as higher pay only to draw the well-endowed into jobs where their talents will be the greatest use to society. If a talented person does not want to develop or use her talent, she is free to waste it. The metaphor of talent pooling is thus misleading, and might better be put to rest.





n122 The analysis in the text might seem contrary to the spirit of Rawls' Kantian world views. Rawls, in describing his theory as a Kantian theory, stresses that "there is no place for the idea of an individual's contribution to society," because the "worth [of citizens] in a just and well-ordered society is always equal." Rawls, supra note 84, at 62. But the moral worth of citizens as persons can be differentiated from the moral worth of their actions as judged by the effect of their actions on the least advantaged. And differential income tied to positions, allowed by Rawls under the difference principle, can be justified on moral grounds without violating Rawls' Kantianism.





n123 See supra text accompanying notes 22-23.





n124 Richard Posner believes that the moral basis for law and economics is a modification of utilitarianism that substitutes wealth for utility. See R. POSNER, supra note 106, at 60-87. Posner's theory of wealth-maximization would be more attractive to Rawls than the standard interpretation of average utility because the notion of wealth is much closer to the notion of primary goods, the basis for choice in the original position, than is happiness. For a discussion of how the theory of wealth maximization would lead to absolute property rights, see id. at 70-71. Posner believes that people in the original position would choose the wealth-maximizing principle over the difference principle. See id. at 99-102. For a skeptical assessment of the use of utilitarian theories to ground strong theories of property, see L. BECKER, PROPERTY RIGHTS 57-74 (1977).





n125 In the text, I will discuss Nozick's own theory and not Locke's. There is much controversy concerning the fidelity of Nozick's use of Locke. For arguments that Nozick has generally misinterpreted Locke, see Drury, Robert Nozick and the Right to Property, in THEORIES OF PROPERTY 361 (A. Parel & T. Flanagan eds. 1979); Held, John Locke on Robert Nozick, 43 SOC. RESEARCH 169 (1976). For particular problems with Nozick's account, see J. TULLY, A DISCOURSE ON PROPERTY: JOHN LOCKE AND HIS ADVERSARIES 96, 116, 126 (1980). The commentator whose interpretation of Locke's theory of property is probably the closest to Nozick's theory is C. B. MacPherson. See C. MacPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM 197-221 (1962). This is not surprising, even though MacPherson's own political allegiance to democratic socialism is light years away from Nozick's brand of libertarianism, because MacPherson argues that Locke was an early apologist for unrestrained accumulative capitalism. MacPherson's account, although renowned for its brilliance and power, has been severely and convincingly criticized for its interpretation of the historical Locke. See J. DUNN, THE POLITICAL THOUGHT OF JOHN LOCKE 203-41 (1969); J. TULLY, supra, at 131-32, 136-38, 142-43, 149, 170-76.
The reader seeking to learn about Locke's theory should begin with the admirable edition by Peter Laslett of J. LOCKE, TWO TREATISES OF GOVERNMENT (P. Laslett ed. 1963) (hereinafter cited as First Treatise or Second Treatise). Laslett's long introduction gives an excellent background to Locke. Id. at 15-135. For a general account of Locke's political theory, see J. DUNN, supra. For a reconstruction of Locke's theory of property, see J. TULLY, supra.





n126 In the midst of editing, I found a magisterial article by G. A. Cohen which reaches some of the same conclusions as my analysis of Nozick, including the possibility of using the difference principle to measure compensation. Cohen's discussion of Nozick focuses on the measurement problem discussed in section III-B of this Article. See infra text accompanying notes 177-210. He mentions the relationship between Rawls and Nozick only as a side issue. His article also contains a wealth of comparisons of Nozick's theory with Marxist and liberal theories. Anyone interested in the use of Lockean theories to justify various schemes of private property should read Cohen's article. See Cohen, supra note 120.





n127 Discussions of Nozick's theory of property often give little attention to the transfer principle, as if it were not an important part of a social institution of property. But for lawyers, it is much more natural to see the transfer principle as central, and the acquisition principle as merely of historical interest. In a modern society, the transfer principle will cover the entire realm of contract, that part of torts that deals with conversion of or damage to property, much of the law of property (conveyancing and the recording system), much of the law of secured transactions, and much of the law of debtors' and creditors' rights. The leading discussion of the theories of Rawls and Nozick as applied to contract is Kronman, supra note 118; see also J. MURPHY & J. COLEMAN, THE PHILOSOPHY OF LAW 193-209 (1984) (criticizing Kronman's analysis). For an exploration of principles of property transfer in the areas of real property, bankruptcy, and secured transactions, see Baird & Jackson, Information, Uncertainty, and the Transfer of Property, 13 J. LEGAL STUD. 299 (1984).





n128 R. NOZICK, supra note 1, at 150-53.





n129 Nozick develops his theory of property rights as part of his own attempt to justify a minimal state, in the light of libertarian and anarchist criticisms of states in general, while still remaining critical of the more grandiose welfare state. Nozick's justification of the minimal state involves demonstrating that a minimal state could arise from a state of nature by means of consensual transactions. R. NOZICK, supra note 1, at 3-146.
Richard Epstein has criticized Nozick's developmental argument for the minimal state. He believes that because of free-rider and holdout problems, Nozick cannot make the jump from voluntary associations to a true state without resort to some justified coercive power. See R. EPSTEIN, supra note 10, at 332. Epstein adopts his "eminent domain approach" to explain this coercive power of the state. Id. This difference between Epstein and Nozick does not create significant differences in their theories of private property. Epstein, like Nozick, claims to be greatly influenced by Locke. Id. at 7-18. Epstein believes that both the common law and the United States Constitution are based on a Lockean theory of the proper relationship between property and the state. Id. at 15-18. One commentator, Jeremy Paul, believes that Epstein's Lockean theory is largely influenced by Nozick. Paul, supra note 10, at 748 n.25 ("Epstein in large part adopts Robert Nozick's natural rights scheme.").





n130 Nozick's exposition of his theory of just acquisition is very sloppy. For an excellent criticism, see Cohen, supra note 120, at 120-26 & n.17. Rather than attending to the various inconsistencies in Nozick's account, I will in the text attempt to reconstruct the most plausible line of analysis that Nozick could take.





n131 R. NOZICK, supra note 1, at 174-78. Locke's theory of property is often distinguished from other theories of property as being a labor-desert theory, as opposed to the Hegelian personality-will theory or the utilitarian theory of Bentham. See J. BENTHAM, THEORY OF LEGISLATION (R. Hildreth trans. 1931); G. HEGEL, PHILOSOPHY OF RIGHT (T. Knox trans. 1821); J. LOCKE, supra note 125; Radin, supra note 8, at 958 & n.3. For the purposes of understanding Nozick's dispute with Rawls, however, the role of the concept of labor in the theory is insignificant. For Locke, labor is the means by which property is appropriated. For Nozick's dispute with Rawls, it is important that there be a method of appropriation, but the exact nature of the method of appropriation is not important. What is important is the individualist nature of appropriation for Nozick and Locke, as opposed to Rawls' attempt to explain property as a set of rules adopted by political society.
The emphasis on desert in Locke's theory is more central to Nozick's concerns. One of Nozick's main criticisms of Rawls is that Rawls' theory ignores desert. For a discussion demonstrating why Nozick's criticism is ill-founded, see supra notes 112-22 and accompanying text. Nozick's theory itself is not based on desert, but rather on entitlement. The relationship between desert and entitlement is not simple. For a natural law account, see Weinreb, The Complete Idea of Justice, 51 U. CHI. L. REV. 752 (1984).





n132 Second Treatise, supra note 125, § 27.





n133 R. NOZICK, supra note 1, at 178. Locke announces two limitations on the acquisition of property by mixing labor: the sufficiency limitation described in the text, Second Treatise, supra note 125, § 27, and a spoilage limitation, id. § 31. The spoilage limitation provides that the amount of property a person can appropriate is bounded by the person's capacity to use it before it spoils. Id. "Nothing was made by God for Man to spoil or destroy." Id.





n134 R. NOZICK, supra note 1, at 179.





n135 Nozick's theory of property, and his political philosophy generally, have not lacked energetic critics. Many are discussed throughout the notes of this Article. For a particularly inclusive discussion of various critics and criticisms of Nozick, see K. NIELSEN, EQUALITY AND LIBERTY 191-227 (1985).





n136 See id. at 212; Lyons, The New Indian and Original Rights to Land, in READING NOZICK, supra note 72, at 355.





n137 R. NOZICK, supra note 1, at 153. A rectification principle could not merely rely on historical desert: trying to determine the appropriate shares of current citizens from the just shares of their ancestors before any misappropriations would be administratively impossible and philosophically questionable. Therefore, one might suggest an equal division of existing wealth and propose the difference principle as an improvement over equality for the same reasons that the difference principle is preferred over equality in the original position.





n138 Such an argument relies upon the accidents of history in a way I would like to avoid. Further, the use of the difference principle for rectification would be a one-shot affair. Presumably, after historical injustice was rectified by any method, including the difference principle, and property was redistributed fairly, just acquisition and just transfer would again become the dominant principles of justice and the role of the difference principle would end. The principle of just acquisition would apply to intellectual property and any physical property that remained to be acquired.





n139 I will discuss this problem only briefly. Nozick's key notion is entitlement: current just owners are entitled to absolute property rights. But Nozick has no easy answer to explain why they are so entitled. A first time appropriator mixes labor with unowned things and creates value. If she then trades this property for something else, her original labor may still justify her current holding. But people alive today have never made original appropriations. Their entitlements must come from justified expectations formed while working within the rules to amass their current holdings of property. But an attempt to give a determinate theory of property based on entitlements that are merely justified expectations is circular. Nozick's entitlements presuppose rules of property by which people form settled expectations and in accordance with which people act in reliance. But Nozick has given no independent justification for absolute property rights. He purposely avoids giving a utilitarian justification. Neither can he claim that reliance is historically based: redistributive taxation to favor one group over another has been in existence throughout all of our lifetimes, so none of us have acquired property in reliance on absolute property rights. For further discussion of the weaknesses of Nozick's justification from a generally sympathetic critic, see R. EPSTEIN, supra note 10, at 335-37.





n140 Locke never fully discussed this problem, as well as the later problems Nozick faces in applying his theory to a modern economy, because Locke believed his natural law theory of property applied only in the state of nature. Once people form a government and civil society by means of a social contract, the rules of property become whatever rules are fixed by the social contract or the legitimate government thereby created. See J. TULLY, supra note 125, at 98-99, 157-70; see also Christman, Can Ownership Be Justified by Natural Rights? 15 PHIL. & PUB. AFF. 156, 161-64 (1986) (agreeing with Tully, at least to extent of rights to property that involve use of money, such as rights to income from property). Thus, Nozick departs from Locke insofar as he seeks a theory of property rights that restricts what rules of property civil society may justly adopt. This is one of the reasons Nozick has been criticized for claiming to be a descendent of Locke, since this aspect of Nozick's theory has more in common with Locke's intellectual adversaries such as Sir Robert Filmer. See Held, supra note 125, at 169. For Locke, the only natural right to property that transcends the formation of civil society is a right to the means of subsistence. See C. MacPHERSON, supra note 125, at 213-14; J. TULLY, supra note 125, at 166. Commentators disagree whether Locke's provision of means of subsistence could be conditioned on a person's willingness to work, see C. MacPHERSON, supra note 125, at 213-14, or whether the propertiless have a right to charity without being forced to work, see J. TULLY, supra note 125, at 131-39.
Locke never discussed the results of appropriation of all property in the state of nature because he believed it would not occur. Locke believed appropriation of land would so increase productivity that a group of people would cultivate less land if each appropriated and tilled a plot separately than if the entire group cultivated the land in common. Thus, if land is appropriated, less is used and some will be left for others. See J. TULLY, supra note 125, at 149. Nozick follows C. B. MacPherson in misreading this passage of Locke, see Second Treatise, supra note 125, § 37, by interpreting Locke to say that appropriation is justified not by the greater availability of common land, but merely by the increased standard of living that would be made available by the stimulation to the economy caused by appropriation. See C. MacPHERSON, supra note 125, at 211-13; R. NOZICK, supra note 1, at 177. Tully has convincingly argued that Locke did not have Nozick's version of the trickle-down theory in mind.
For Locke, the full appropriation of all property becomes possible only after the development of a monetary economy. But this is at the point when civil society is created under the social contract, and property rules become conventional, adopted only with the consent of all. See J. TULLY, supra note 125, at 152-53.





n141 R. NOZICK, supra note 1, at 176.





n142 Indeed, J. H. Bogart argues that the Lockean Proviso is inconsistent with Nozick's fundamental premise that "no person is a resource for any other person" and with Nozick's preference for nonpatterned theories of justice. Bogart, supra note 90, at 832-33. Bogart goes on to argue that the Proviso is necessary to make Nozick's theory plausible, but that the Proviso so constrains Nozick's root ideas as to make them subordinate to the Proviso's concerns with distributive patterns. Id. at 833. Bogart does not specifically address the primary modification that Nozick makes to the Proviso, whereby Nozick allows compensation as a remedy for violating the Proviso. See infra text accompanying notes 146-48. The remainder of this Article demonstrates in detail that Nozick's compensation scheme will subordinate his theory even more abjectly to redistributive principles.





n143 R NOZICK, supra note 1, at 176.





n144 Nozick's response also overlooks problems of comparative disadvantage and envy. See Christman, supra note 140, at 175.





n145 Nozick's general objective, and challenge, is to give an intuitively attractive account of private property. A more attractive interpretation of the Proviso would be to interpret it as a "no-loss" principle: Appropriation is allowed only if there is no loss to others. However, any appropriation restricts others' liberty with regard to the thing appropriated and thus would violate such a no-loss principle. See L. BECKER, supra note 124, at 40. A pure entitlement approach does not work either. Proudhon's challenge to someone who would seek to appropriate by labor -- "Who set you the tasks?" -- points out that the entitlement argument works only with a set of background rules or expectations. See P. PROUDHON, WHAT IS PROPERTY? 84 (1966). The best response to Proudhon, as Becker points out, was given by John Stuart Mill: If there is no loss, and the action by which a person seeks to appropriate is not part of the person's moral obligations to anyone else, then no one else deserves the improved property, and so it is not wrong for the laborer to get it. See L. BECKER, supra note 124, at 42-43; J. S. MILL, Principles of Political Economy, in 2 COLLECTED WORKS OF JOHN STUART MILL 230 (1965). But the no-loss requirement in Mill's argument is very strong -- any competitive disadvantage or lost opportunity is enough. That is why Becker comments about this interpretation of Locke's theory of property: "In competitive situations, the restrictions on ownership must be extended to at least the major means of production. Locke's argument then becomes a foundation for socialism rather than 'possessive individualism.'" L. BECKER, supra note 124, at 43.





n146 R. NOZICK, supra note 1, at 178. This solution threatens Nozick's attempt to show that the minimal state can be reached by a voluntary process. If the appropriator pays compensation, then she does not need the consent of the propertiless. The idea of compensation makes Nozick much more of a predecessor to Epstein than a follower of Locke. See supra note 129. Epstein does not explicitly adopt Nozick's idea of compensation. He instead takes the more radical step of claiming that the Proviso is unnecessary. Epstein suggests that Locke's theory assumes that in the state of nature all things are owned in common. Thus, for Locke, appropriation of property by an individual is a transfer from common ownership to individual ownership, and the other owners' rights must be respected. Epstein suggests that a better view is that before individual appropriation, things are totally ownerless. R. EPSTEIN, supra note 10, at 11. Similarly, Eric Mack suggests that a consistent Lockean theory might best be constructed by rejecting the Proviso and its underlying "egalitarian-communitarian" account of the rights of persons concerning the natural world. See Mack, supra note 83, at 137.





n147 R. NOZICK, supra note 1, at 179. I am prepared to let Nozick go even further and say that the monopolist need not keep prices low for everyone, but only for those whose lack of wealth makes it impossible to purchase the necessary amount of the monopolized good and maintain the baseline standard of living. In other words, the monopolist need not compensate everyone by keeping a lower price, but may charge a high price and directly compensate those driven below the baseline. Thus, the Proviso for both principles can be treated as merely giving rise to a compensation right rather than anything stronger and the amount of compensation is measured in terms of the baseline situation. See also infra note 158 and accompanying text.





n148 It may be doubted whether the Proviso will often come into play. In a society like ours, where all natural goods are already appropriated, one might think that the Proviso to the principle of just acquisition would be of little relevance. Additionally, Nozick asserts that monopoly will rarely occur. Therefore, the Proviso to the principle of just transfer might also be unimportant.





n149 Nozick argues, and I will not dispute the argument here, that creation of new intellectual property does not give rise to compensation rights because no one's situation is worsened by the invention of, for example, a new miracle cure for a disease. R. NOZICK, supra note 1, at 181-82.





n150 Accord Steiner, Slavery, Socialism, and Private Property, in NOMOS XXII: PROPERTY 244, 252-53 (1980). Steiner thinks that the difficulties of compensating newcomers after property is appropriated are so severe that Nozick's whole theory is unworkable. Id; see also infra note 159. The theory I sketch avoids Steiner's objections in principle, see infra notes 162-63, 182, although calculations of actual compensation will admittedly be extraordinarily difficult in practice.





n151 See R. NOZICK, supra note 1, at 180.





n152 Locke would take this approach. For Locke, the standard form of property is not an individual right, but a common right enjoyed by the entire family, or whole kinship unit. See First Treatise, supra note 125, § 90; J. TULLY, supra note 125, at 133.





n153 One line of my rebuttal could be to point out that not all children have parents or families fit to fulfill this duty. Indeed, not all children have surviving parents or families at all. Surely these children can claim compensation rights. But I want to establish compensation rights for everyone.





n154 Nozick does not directly discuss such duties for parents, family, or society, but I assume that he will go so far, if only for the sake of building an objection to my main point. For Nozick on related points, see R. NOZICK, supra note 1, at 36-37, 167-68, 287-91, 330.





n155 Here Locke also disclaims anything like Nozick's theory of absolute property rights. Locke's discussion of inheritance is primarily aimed at undercutting primogeniture. For Locke, in the state of nature, inheritance belongs to all children in common, and is a use right for "maintenance, support and comfort . . . and nothing else." First Treatise, supra note 125, § 93; see J. TULLY, supra note 125, at 134.





n156 It might seem that the new adult gets to double dip. The new adult is likely to get great advantage from the family's property, while still retaining compensation rights under the Proviso. One must remember, however, that the right to compensation merely serves to raise a person's situation to the baseline. See supra text accompanying note 146. Compensation is not a fixed amount, but a floor that no one is allowed to fall below. (The appropriate amount of compensation is discussed infra at text accompanying notes 206-08.) Thus, any new adult who did reap the advantages of her family's property would most likely be in a situation above the baseline and thus, while potentially eligible for compensation, would in fact be due nothing. Any new adult who fell below the baseline for any reason except that she gave her own property away -- whether her poverty is due to the lack of family, the poverty of her family, or the refusal of her family to provide for her -- would be due compensation to raise her to the baseline.





n157 Nozick discusses this argument in the context of a single newcomer and characterizes prohibition of appropriation as a remedy rather than as compensation. He attempts to stop the prohibition of appropriation from "zipping back" from the last appropriator through each preceding appropriator to the first one, by claiming that a successor is made worse off only if foreclosed from using property and not merely from appropriating property, even though at every point preceding appropriators seem to have harmed their successors by taking the (provisionally) last available property. R. NOZICK, supra note 1, at 176. Nozick's counterargument will not work if there are many newcomers and compensation is being paid, rather than appropriation being forbidden. Otherwise, the last appropriator owes all the compensation due to newcomers. Yet all preceding appropriators share the benefit of appropriation. And the "zipping back" of duties to compensate does not have the effect Nozick was careful to avoid -- that private property could not be instituted in the first place. Instead, it is merely a question of who bears the cost.





n158 Id. at 179.





n159 Hillel Steiner, in a cryptic comment regarding Nozick's use of market prices in computing compensation, points out that market prices are distribution relative, and since the proper distribution of the good is precisely what is at issue, no determinate market price can be computed. Steiner, supra note 150, at 252.





n160 On this account, the legal counterpart to the Proviso is antitrust law.





n161 For a discussion of the difficulties of comparing the price of commodities in two very different societies, see infra notes 163-64 and accompanying text.





n162 I do not claim that anyone who falls below the baseline is due compensation. If a person falls below the baseline due to her own lack of effort or waste of opportunities, no compensation under the Proviso is due her. But anyone who falls below the baseline for causes not of her own making is due compensation. See infra note 176.





n163 Apartment rents in the Soviet Union are one-tenth or less as much as apartment rents in this country, using the prevailing rates for exchange of currency, but income in the Soviet Union is much less, the apartments are not physically the same, the ownership or rental rights are not the same, and even the importance of the apartment to the owner's life is subtly different.
Another problem that the baseline interpretation does not address at this point in the analysis is the indeterminacy that arises from using the efficient market price, see supra note 159 and accompanying text, even though market prices in the baseline society are used to fix the amount of compensation. Market prices are distribution relative, but the distribution in the baseline society can in principle be determined.





n164 For a discussion of the difficulties arising from a Lockean suggestion of giving people rights in all the various types of unappropriated natural objects, which parallels the difficulties of compensation rights tied to different types of commodities, see Mack, supra note 83, at 144-45.





n165 The main possible exception might be raw land.





n166 The correct characterization of the baseline situation is discussed infra at text accompanying notes 206-08.





n167 If the acquisition Proviso operates on broad categories of natural resources or on the person's life situation, the need for compensation under the acquisition Proviso would be rare as well, for the same reason.





n168 See R. NOZICK, supra note 1, at 179; supra text accompanying note 158.





n169 The efficient prices interpretation has one point of similarity to the baseline price interpretation. The efficient market economic model appeals to a hypothetical market with many independent sellers. This one feature, dispersed ownership, is analogous to the situation before appropriation. Otherwise, the calculation of an efficient market price is based upon the current economic status of society, not on the economic system of the baseline society.





n170 By definition, she was not present during the appropriation that disadvantaged her. She has had no contact with or possession of the appropriated property, and so has no opportunity to prevent the violation of her rights.





n171 The analogy to stolen property is apt. Both situations involve the taking of property to which the injured party had a right of access. Both situations thus involve infringement of a type of property right. For further discussion of whether persons within the state of nature have limited property rights, held in common, in the unappropriated property, see infra text accompanying notes 193-97.





n172 See R. BROWN, THE LAW OF PERSONAL PROPERTY 193-94 (W. Raushenbush 3d ed. 1975).





n173 See W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS 102-06 (5th ed. 1984). The liability derives from the tort of conversion.





n174 The purchaser would have a cause of action for rescission and restitution.





n175 Nozick seems to agree. See R. NOZICK, supra note 1, at 180.





n176 One may also object that the argument given so far ignores desert in the following way. No account is taken of the reason why a person falls below the baseline. Yet a person who is voluntarily impoverished can hardly blame his poverty on the prior acquisition of all available property. Moreover, if all land were still held in common, a person would have to work a little to collect food, if not work a lot to cultivate it. Compensation would make a person better off than he would have been if the land had not been appropriated, because one need not work to receive compensation.
This objection falls short because, like Rawls, I do not seek to defend welfare for the ablebodied. For Rawls, the social minimum, like all income, is tied to a job. Welfare is a separate subject he does not address at length. See Michelman, One View, supra note 117, at 967-97. Similarly, because I seek to put people in the position where they would be if land and other property had not been appropriated, I am willing to stipulate for the sake of the current argument that compensation be paid in the form of a state-insured right to a job at a guaranteed minimum wage. The ablebodied poor are thus made whole. In the state of nature, they would also presumably have had to work in order to obtain food and shelter, thus the right to a job with a minimum wage duplicates the situation they would have been in had appropriation not occurred. Moreover, in working, they individually deserve their compensation. Welfare for children, the aged, the ill, and the disabled is a question I will not address here.





n177 See supra note 132 and accompanying text.





n178 See supra text accompanying notes 140-42.





n179 See supra note 147 and accompanying text.





n180 See supra notes 163-64 and accompanying text.





n181 This point is interesting because it raises the question of personal desert, which Nozick stresses in his criticism of Rawls. See supra text accompanying notes 114-22.





n182 Some of these difficulties can be worked around. We can measure traits in terms of standard deviations from the mean for the society instead of in absolute terms. We can look at traits that are broader than the ability to play the electric guitar or the ability to ride a horse. Still, some of these traits cannot be neutrally translated from one society to another. For example, her life situation in the old society would be influenced by her sex much more than it is currently.





n183 This solution also avoids the difficulty raised by Hillel Steiner that the use of market prices to measure compensation to individual persons is illegitimate because market prices do not correspond with each individual's own personal valuation of particular commodities. Steiner, supra note 150, at 252. The text proposes looking at representative persons, and entire standards of living, to avoid the problem of individual variations. Rawls uses the notion of primary goods and representative persons for the same reason.





n184 See supra note 176.





n185 R. NOZICK, supra note 1, at 181. For another discussion criticizing this contention of Nozick's, see Cohen, supra note 120, at 124-34. For a brief discussion agreeing that the baseline is not just the standard of living in the state of nature, see T. BENDITT, supra note 25, at 117. Benditt does not, however, propose an alternative measure.





n186 Thus, scientific discoveries which have improved the general standard of living should be counted towards the standard of living of the least advantaged so long as those discoveries would have been made in a society without the same institution of private property in natural resources. If economic systems naturally become more developed and produce more over time, then a person should get the advantage of that greater production in determining the baseline. That requires determining how far the economy would have developed if the natural resources had not been appropriated as private property.





n187 Accord Christman, supra note 140, at 175. Gregory Kavka argues that even if we locate the baseline society in history, Nozick undervalues the compensation due according to his own principles. In discussing compensation for violations of rights in other contexts, Nozick distinguishes between mere full compensation and market compensation. Full compensation compensates for the rights violation by reviving the status quo; market compensation is measured by the price the parties would have bargained to prior to the violation. See Kavka, An Internal Critique of Nozick's Entitlement Theory, 63 PAC. PHIL. Q. 371, 373 (1982); cf. R. NOZICK, supra note 1, at 63-65. Nozick agrees that market compensation generally exceeds full compensation and is a fairer measure of adequate compensation of a right. R. NOZICK, supra note 1, at 65, 68. Kavka argues persuasively that the same arguments apply to the situation arising from the acquisition of property. Kavka, supra, at 374.





n188 Besides, what Nozickian argument would be complete without a desert island example? See, e.g., R. NOZICK, supra note 1, at 185. For a different example that is used to explore the various ways a newcomer is hurt by appropriation, see Cohen, supra note 120, at 126-30.





n189 One explanation not discussed in the text is the loss of security, noted in the example of the village that alters its use of subsistence grazing on land held in common. See supra text accompanying note 176. But the harm of the loss of security is remedied by the provision that compensation may be owed at any time, rather than by setting the level of compensation higher or lower.





n190 R. NOZICK, supra note 1, at 178.





n191 See Cohen, supra note 120, at 123.





n192 This alternative is suggested by Gregory Kavka. See Kavka, supra note 187, at 373. Kavka points out that Nozick himself, in other parts of his theory, endorses this principle. Id.





n193 See Brody, Redistribution Without Egalitarianism, SOC. PHIL. & POL'Y, Autumn 1983, at 71, 83-84. These four explanations of the worsening of the situation of nonappropriators can be put into two categories: lost opportunities and violations of rights.





n194 Richard Epstein and Eric Mack have suggested that this is one consistent way to reformulate a Lockean theory of property. See supra note 146.





n195 One criticism that Nozick might make against the proposition that in the state of nature all property is commonly owned is that such common ownership is incompatible with people's ownership of their own bodies. If someone needed to get permission from all the common owners before one could move anywhere, stand anywhere, or touch anything, one could seem to have the liberty only to stand in one place until one died, if even that. Yet Nozick's first premise is that people own their own bodies and have the freedom to use them as they will. This argument is pointed out by G.A. Cohen, who also gives a conclusive response. See Cohen, supra note 119, at 77, 82-86. Nozick himself is committed to a merely formal theory of self-ownership rather than a theory that provides the substance of freedom of action. For example, once land has been appropriated and has come into the ownership of Capitalist, Nozick sees nothing wrong with Capitalist refusing to let Worker have freedom of movement over Capitalist's land unless Worker agrees to sell his labor power to Capitalist. If Worker's self-ownership is merely formal after all property is appropriated, Nozick has no argument based on self-ownership against joint ownership of land in the state of nature.





n196 I am unsure of the force of this "can." It appears to be historical. Certainly we can conceive of property rights in a state of plenitude. And there is no normative reason why property rights in a state of plenitude would be inappropriate. But if the argument is merely historical, it does not work. We are not asking what property rights persons in a state of plenitude would be psychologically disposed to adopt, but what notion strikes us and our contemporaries as most fitting for that situation.





n197 See R. NOZICK, supra note 1, at 176.





n198 Moreover, the irrelevance of the talent-pooling argument in the context of drawing up the basic structure of society was demonstrated earlier. See supra text accompanying notes 112-22.





n199 For a brief summary of the evolution of the theory of value as it relates to labor in Adam Smith, David Ricardo, and Karl Marx, see Wolff, A Critique and Reinterpretation of Marx's Labor Theory of Value, 10 PHIL. & PUB. AFFAIRS 89, 89-98 (1981).





n200 That is, the labor theory of value is no longer accepted as an adequate explanation of exchange value. Roemer, Property Relations vs. Surplus Value in Marxian Exploitation, 11 PHIL. & PUB. AFFAIRS 281, 312 & n.22 (1982). The usefulness of the labor theory of value in other contexts, such as defining exploitation, is more hotly debated. Id. at 313.





n201 See R. NOZICK, supra note 1, at 253-62.





n202 See supra note 159.





n203 See Fischel, Efficient Capital Market Theory, The Market for Corporate Control, and the Regulation of Cash Tender Offers, 57 TEX. L. REV. 1-5 (1978). Efficient capital market theory focuses on the securities market, but the principle is the same in any market.





n204 See supra notes 189-93 and accompanying text.





n205 Even developing the property communally is an appropriation by the entire group. It is a departure from the state of nature; the use rights of individuals are superseded, and so compensation rights should arise.





n206 For suggestions of this approach, see T. BENDITT, supra note 25, at 117-18; Kavka, supra note 187.





n207 See supra text accompanying note 204.





n208 Nozick never gives an illustrative list of rights, let alone a complete list. Some of the rights Nozick assumes include the right to life, R. NOZICK, supra note 1, at 179 n.*, 268, the right to bodily integrity, id. at 268, and the right to punish those that violate your other rights, id. at 137-40.





n209 See supra notes 126-34 and accompanying text.





n210 See id.

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