Left-Libertarianism

Left-libertarianism marries a very thin reading of Lockean self-ownership with an extraordinarily expansive reading of Locke’s famous proviso that those who appropriate common resources must leave “enough, and as good” for all others. Left-libertarians have argued that those twin commitments justify a redistributive system that is egalitarian in effect, without direct appeal to egalitarianism. To reach that conclusion, however, left-libertarians have had to give both self-ownership and the Proviso highly strained interpretations. The motivation for doing so clearly seems to be to get to the desired conclusion (some form of egalitarianism). At the end of the day, then, left-libertarianism is probably best viewed as egalitarianism in drag.

The Unwritten Theory of Justice

Rawls’s Theory of Justice has had two parallel lives in political theory. The first—the version Rawls wrote—is a response to utilitarianism’s failure to take seriously the separateness of persons. The second—the unwritten version “received” by its general audience—is a response to libertarianism’s failure to take seriously our moral obligations to the well-being of our fellow citizens. This chapter explores how, had he written the second version, Rawls might have dealt with libertarians’ critique of “justice as fairness” as fundamentally illiberal, and how his two principles might have been transformed in the process.

Rawls, Risk, and the Maximin Principle

In A Theory of Justice, Rawls acknowledged that rational choice behind the veil of ignorance would generally yield average utilitarianism—John Harsanyi’s conclusion fifteen years earlier. The question is, why would it yield a different conclusion in the Original Position? If, as Rawls assumed, the representative person would be infinitely risk averse in those unique circumstances, utility functions would reflect that preference in the relative weights assigned to different outcomes, yielding Rawls’s maximin solution. In short, Rawls’s disagreement with utilitarians is an empirical dispute about individual preferences and nothing more. Rawls believed the disagreement was more fundamental, because of two erroneous assumptions about standard utility functions: that they reflect peoples’ psychological attitudes toward risk-taking rather than their preferences over a range of outcomes, that they would ignore the transitory disutility of uncertainty aversion in calculating expected utilities.

Tortious Harms

This chapter examines the recent revival of a corrective justice approach to tort law. Seeking to reclaim tort theory from the now dominant welfarist perspective, corrective justice theorists like Ernest Weinib, Arthur Ripstein, Jules Coleman, and John Goldberg have stressed the corrective justice roots of the rules governing compensation for “wrongful” acts. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. The failure of corrective justice theorists to address the central regulatory question at issue in tort law—appropriate standards of conduct—results from their conflating prohibition and compensation; viewing the tort system in isolation from the larger regulatory regime; and treating the imposition of risk and imposition of harm as distinct forms of conduct, rather than the identical conduct viewed from different temporal perspectives.

Introduction

The introductory chapter sets forth the broad argument of the book, and its relevance to the more particular concerns explored in succeeding chapters. While most of the attention in this chapter and succeeding ones is devoted to an internalist critique of nonconsequentialism, the chapter touches briefly on the real world implications of nonconsequentialist intuitions in moral philosophy.

“If You Don’t Like It, Leave It”

The leverage the most fortunate possess to extract a favourable deal for themselves in hypothetical social contractarian bargains depends on what exit options they are endowed with. Social contractarian arguments typically enlarge their exit options by suppressing many of the social constraints on exit they would face in the real world. The result is to greatly increase the share of the joint surplus that the most fortunate can extract in the hypothetical bargain. Suppressing naturally arising social constraints on exit is inconsistent with the parsimonious view of our collective responsibility to the least fortunate that animates social contractarianism to begin with.

Can Contractualism Be Saved?

Over the past fifteen years, a number of scholars sympathetic to Scanlonian contractualism have sought to rescue it from the paradox created by Scanlon’s original ex post version: that the wrongness of an act depends on its consequences. Their proposed solution, “ex ante contractualism,” retains the most distinctive feature of Scanlonian contractualism, the maximin rule embedded in Scanlon’s Greater Burden Principle, but applies it to expected rather than actual outcomes. That change in epistemic perspective eliminates the paradox at the heart of ex post contractualism. But it introduces a number of equally serious problems that limit its application to a small set of stylized cases that have colonized the philosophical laboratory but are rarely encountered outside of it.

The Case for a Progressive Benefits Tax

Opponents of redistributive taxation have long supported a “benefits” tax, which would tax individuals in accordance with the market value of the benefits they receive from the government. The question is, what market? A perfectly competitive market in which goods and services are priced at their marginal cost of production? A quasi-monopolistic market in which the supplier (here, the state) can price-discriminate among customers based on their willingness to pay? Some third alternative? Depending upon the answer, a benefits tax could yield radically different distributions of the tax burden, from a regressive to a steeply progressive rate structure. Benefits tax proponents have opted for a perfectly competitive market, but their own laissez-faire precommitments support a different answer, with radically different implications for the “right” rate structure.

Wilt Chamberlain Revisited

In Anarchy, State, and Utopia, Nozick relies on his principle of Justice in Transfer to explain why the state may not tax income from labor or property. Applying Justice in Transfer to his famous Wilt Chamberlain example, he argues that Wilt owns the money he was paid to play basketball because it was voluntarily transferred to him by his fans, who owned it themselves. Nozick’s argument confuses two questions: whether someone owns the market value of his labor or property, and if so, whether he has a right to transfer that value to someone else, as a gift or exchange. Nozick’s argument goes only to the second question. But the state’s right to tax Wilt on his earnings turns on the first, and in particular on whether owners are entitled to the scarcity rents that accrue to their property or talent.

Is Nozick a Libertarian?

Nozick’s libertarian theory of property rights, laid out in Part II of Anarchy, State and Utopia, has been subject to innumerable internalist and external critiques. But the book read as a whole poses a deeper puzzle. Parts I, II, and III present at least three mutually inconsistent theories of property rights: utilitarian; libertarian; and anything goes, provided that citizens have some unspecified level of choice among legal regimes. If any of the three predominates, it is not libertarianism but utilitarianism. Nozick is hardly alone in this regard. Nozick’s inconstancy to libertarian principles is typical of the problems deontologists of all stripes encounter in translating vague, abstract rights into concrete rules. His de facto solution is typical as well: when the going gets tough, rights theorists usually turn utilitarian.