7 For example, we might suppose that each person"s net a.s.sets are recorded in some central computer, and that each has a cash balance sufficient to pay off any claim against him. (We shall see later how interesting problems arise when we relax this latter a.s.sumption. ) Purchases involve adding the price to the seller"s balance while subtracting it from the purchaser"s A judgment is upheld against a person by transferring an amount from his account to his victim"s; there is no possibility of refusing to pay. We mention this to sharpen our question, not to recommend the computerized system. For example, we might suppose that each person"s net a.s.sets are recorded in some central computer, and that each has a cash balance sufficient to pay off any claim against him. (We shall see later how interesting problems arise when we relax this latter a.s.sumption. ) Purchases involve adding the price to the seller"s balance while subtracting it from the purchaser"s A judgment is upheld against a person by transferring an amount from his account to his victim"s; there is no possibility of refusing to pay. We mention this to sharpen our question, not to recommend the computerized system.
8 See Peter Newman, See Peter Newman, The Theory of Exchange The Theory of Exchange (Englewood Cliffs, N.J.: Pren tice-Hall, 1965), chap. 3. (Englewood Cliffs, N.J.: Pren tice-Hall, 1965), chap. 3.
9 On the more usual role of middlemen see Armen Alchian and W. R. Allen, On the more usual role of middlemen see Armen Alchian and W. R. Allen, University Economics, University Economics, 2nd ed (Belmont, Calif.: Wadsworth, 1967), pp. 29-37, 40. 2nd ed (Belmont, Calif.: Wadsworth, 1967), pp. 29-37, 40.
10 As intensified by the uncertain occurrence of the event? See Martin Seligman et al., "Unpredictable and Uncontrollable Aversive Events," in Robert Brush, ed. , As intensified by the uncertain occurrence of the event? See Martin Seligman et al., "Unpredictable and Uncontrollable Aversive Events," in Robert Brush, ed. , Aversive Conditioning and Learning, Aversive Conditioning and Learning, Academic Press, 1971, pp. 347-400, especially Section IV. Academic Press, 1971, pp. 347-400, especially Section IV.
11 A rationale of intermediate depth would be provided by the intermediate possibility that any A rationale of intermediate depth would be provided by the intermediate possibility that any particular particular fear is removable in some social environment or other, though not all fears together. We should note that someone who grants that some specific fears are not removable by a change of the social environment fear is removable in some social environment or other, though not all fears together. We should note that someone who grants that some specific fears are not removable by a change of the social environment might might still wonder whether these fears weren"t too irrational to be catered to by social policy, though this would be hard to defend in the case of something like fear of bodily harm. still wonder whether these fears weren"t too irrational to be catered to by social policy, though this would be hard to defend in the case of something like fear of bodily harm.
12 See H. L. A. Hart"s essay, "Legal Responsibility and Excuses," in See H. L. A. Hart"s essay, "Legal Responsibility and Excuses," in Punishment and Responsibility, Punishment and Responsibility, (New York: Oxford University Press, 1968), chap 2. The argument cannot be extended from punishment to compensation, for these costs must fall somewhere On such questions, see the discussion in Walter Blum and Harry Kalven, Jr., Public (New York: Oxford University Press, 1968), chap 2. The argument cannot be extended from punishment to compensation, for these costs must fall somewhere On such questions, see the discussion in Walter Blum and Harry Kalven, Jr., Public Law Perrpeitzzrc on a Private Law Problem: Auto Compensation Plans Law Perrpeitzzrc on a Private Law Problem: Auto Compensation Plans (Boston: Little, Brown, 1965). (Boston: Little, Brown, 1965).
13 A very wide net indeed would be cast by a prohibition on any act whose risked consequence would produce fear if certainly expected, which could be part of a totality of similar acts that produces fear, where whether or not the totality produces fear depends upon how many similar acts it contains. A very wide net indeed would be cast by a prohibition on any act whose risked consequence would produce fear if certainly expected, which could be part of a totality of similar acts that produces fear, where whether or not the totality produces fear depends upon how many similar acts it contains.
14 An Anatomy of Values An Anatomy of Values (Cambridge, Ma.s.s.: Harvard University Press, 1970), chap. 9. (Cambridge, Ma.s.s.: Harvard University Press, 1970), chap. 9.
15 The economically most sophisticated discussion of criteria for determining the amount of compensation for loss of life is E. J Mishan, "Evaluation of Life and Limb: A Theoretical Approach," The economically most sophisticated discussion of criteria for determining the amount of compensation for loss of life is E. J Mishan, "Evaluation of Life and Limb: A Theoretical Approach," Journal of Political Economy. Journal of Political Economy. 1971, pp. 687-705. Unfortunately, Mishan"s procedure involves double counting, for the "indirect or derivative risks" (pp. 699-705) of a person"s death, including the financial or psychic loss to the others, already will be Included. via his own concern for them, in the direct involuntary risk as Mishan explains this. For compensation is to be paid for the direct involuntary risk in an amount sufficient to make the person in question willing to bear that risk of death On the a.s.sumption that people have a right to commit suicide, quit their jobs, and so forth, if the victim himself isn"t concerned about these indirect or derivative risks, they don"t seem a cost that may properly be imposed upon another who risks his life or causes his death. After all, could these costs be imposed against the person himself or his estate if 1971, pp. 687-705. Unfortunately, Mishan"s procedure involves double counting, for the "indirect or derivative risks" (pp. 699-705) of a person"s death, including the financial or psychic loss to the others, already will be Included. via his own concern for them, in the direct involuntary risk as Mishan explains this. For compensation is to be paid for the direct involuntary risk in an amount sufficient to make the person in question willing to bear that risk of death On the a.s.sumption that people have a right to commit suicide, quit their jobs, and so forth, if the victim himself isn"t concerned about these indirect or derivative risks, they don"t seem a cost that may properly be imposed upon another who risks his life or causes his death. After all, could these costs be imposed against the person himself or his estate if he he committed suicide or quit his job? If, on the other hand, he is concerned about these indirect or derivative risks, they (as much as is proper of them) will be included, via committed suicide or quit his job? If, on the other hand, he is concerned about these indirect or derivative risks, they (as much as is proper of them) will be included, via his his concern for them, in the compensation of the direct risk. To this criticism must be added, however, the additional complication that a victim may have concern for them, in the compensation of the direct risk. To this criticism must be added, however, the additional complication that a victim may have obligations obligations to others, which he doesn"t care about but which he would carry out if he were alive, perhaps due to social or to others, which he doesn"t care about but which he would carry out if he were alive, perhaps due to social or legal legal pressure. The theoretical determination of appropriate compensation pressure. The theoretical determination of appropriate compensation would would have to include the indirect risks that fall upon persons to whom the victim is obligated though indifferent. have to include the indirect risks that fall upon persons to whom the victim is obligated though indifferent.
16 I owe this objection to viewing the condition as sufficient to Ronald Hamowy. I owe this objection to viewing the condition as sufficient to Ronald Hamowy.
CHAPTER 5 / The State.
1 Herbert Hart, "Are There Any Natural Rights?" Herbert Hart, "Are There Any Natural Rights?" Philosophical Review, Philosophical Review, 1955; John Rawls, 1955; John Rawls, A Theory of Justice A Theory of Justice (Cambridge, Ma.s.s.: Harvard University Press, 1971), sect. 18. My statement of the principle stays close to Rawls". The argument Rawls offers for this principle const.i.tutes an argument only for the narrower principle of fidelity (bona fide promises are to be kept). Though if there were no way to avoid (Cambridge, Ma.s.s.: Harvard University Press, 1971), sect. 18. My statement of the principle stays close to Rawls". The argument Rawls offers for this principle const.i.tutes an argument only for the narrower principle of fidelity (bona fide promises are to be kept). Though if there were no way to avoid "can"t get started" "can"t get started" difficulties about the principle of fidelity (p. 349) other than by appealing to the principle of fairness, it difficulties about the principle of fidelity (p. 349) other than by appealing to the principle of fairness, it would would be an argument for the principle of fairness. be an argument for the principle of fairness.
2 Hart, "Are There Any Natural Rights?" Hart, "Are There Any Natural Rights?"
3 I have formulated my remarks in terms of the admittedly vague notion of there being a "point" to certain kinds of rights because this, I think, gives Hart"s argument its most plausible construction. I have formulated my remarks in terms of the admittedly vague notion of there being a "point" to certain kinds of rights because this, I think, gives Hart"s argument its most plausible construction.
4 I have skirted making the inst.i.tution one that you didn"t get a fair say in setting up or deciding its nature, for here Rawls would object that it doesn"t satisfy his two principles of justice. Though Rawls does not require that every microinst.i.tution satisfy his two principles of justice, but only the basic structuture of the society, he seems to hold that a microinst.i.tution must satisfy these two principles if it is to give rise to obligations under the principle of fairness. I have skirted making the inst.i.tution one that you didn"t get a fair say in setting up or deciding its nature, for here Rawls would object that it doesn"t satisfy his two principles of justice. Though Rawls does not require that every microinst.i.tution satisfy his two principles of justice, but only the basic structuture of the society, he seems to hold that a microinst.i.tution must satisfy these two principles if it is to give rise to obligations under the principle of fairness.
5 The acceptability of our procedures to us may depend on our not knowing this information. See Lawrence Tribe, "Trial by Mathematics," The acceptability of our procedures to us may depend on our not knowing this information. See Lawrence Tribe, "Trial by Mathematics," Harvard Law Review. Harvard Law Review. 1971. 1971.
6 It is a consequence of Locke"s view that each citizen is in a state of nature with respect to the highest appeal procedure of the state, since there is no further appeal. Hence he is in a state of nature with respect to the state as a whole. Also, citizens have "a liberty to appeal to Heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have by the const.i.tution of that society any superior power, to determine and give effective sentence in the case; yet they have, by a Law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves, which belongs to all mankind, where there lies no appeal on earth, viz. to judge whether they have just cause to make their appeal to Heaven. And this judgment they cannot part with..." It is a consequence of Locke"s view that each citizen is in a state of nature with respect to the highest appeal procedure of the state, since there is no further appeal. Hence he is in a state of nature with respect to the state as a whole. Also, citizens have "a liberty to appeal to Heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have by the const.i.tution of that society any superior power, to determine and give effective sentence in the case; yet they have, by a Law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves, which belongs to all mankind, where there lies no appeal on earth, viz. to judge whether they have just cause to make their appeal to Heaven. And this judgment they cannot part with..." Two Treatises of Government, Two Treatises of Government, ed. Peter Laslett (New York: Cambridge University Press, 1967), II, sect. 168; see also sects. 20, 21, 90-93, 176, 207, 241, 242. ed. Peter Laslett (New York: Cambridge University Press, 1967), II, sect. 168; see also sects. 20, 21, 90-93, 176, 207, 241, 242.
7 The considerations of this paragraph, though I find them powerful, do not completely remove my uneasiness about the position argued in the text. The reader who wishes to claim, against this book, that special moral principles emerge with regard to the The considerations of this paragraph, though I find them powerful, do not completely remove my uneasiness about the position argued in the text. The reader who wishes to claim, against this book, that special moral principles emerge with regard to the state state might find this issue a fruitful one to press. Though if I do make a mistake here, it may be one concerning responsibility rather than concerning the state. might find this issue a fruitful one to press. Though if I do make a mistake here, it may be one concerning responsibility rather than concerning the state.
8 May someone in a position to know say that he hasn"t gotten around to examining the information, and so he will defend himself against anyone"s now coming to apply the procedure to him? Presumably not, if the procedure is well known and not of recent origin. But even here, perhaps, a May someone in a position to know say that he hasn"t gotten around to examining the information, and so he will defend himself against anyone"s now coming to apply the procedure to him? Presumably not, if the procedure is well known and not of recent origin. But even here, perhaps, a gift gift of some extra time may be made to this person. of some extra time may be made to this person.
9 The category of feared exaction of compensation will be small but nonempty. Exacting compensation may involve activities people fear because it involves compelling them to do compensatory forced labor; might it even be the direct imposition of a feared consequence, because only this can raise the victim to his previous indifference curve? The category of feared exaction of compensation will be small but nonempty. Exacting compensation may involve activities people fear because it involves compelling them to do compensatory forced labor; might it even be the direct imposition of a feared consequence, because only this can raise the victim to his previous indifference curve?
10 Gilbert Harman proposes simple intertranslatability as a criterion of merely verbal difference in "Quine on Meaning and Existence," Gilbert Harman proposes simple intertranslatability as a criterion of merely verbal difference in "Quine on Meaning and Existence," Review of Metaphysics, Review of Metaphysics, 21, no. I (September 1967). 21, no. I (September 1967). If If we wish to say that two persons with the same beliefs who speak different languages differ only verbally, then Harman"s criterion will include as "simple," translations as complex as those between languages. Whatever is to be decided about such cases, the criterion serves in the present instance. we wish to say that two persons with the same beliefs who speak different languages differ only verbally, then Harman"s criterion will include as "simple," translations as complex as those between languages. Whatever is to be decided about such cases, the criterion serves in the present instance.
11 May the prohibitors charge the prohibited party for the other costs to him of performing the activity were it unprohibited, such as time, energy, and so on? May the prohibitors charge the prohibited party for the other costs to him of performing the activity were it unprohibited, such as time, energy, and so on?
12 Here, as at all other places in this essay, "harm" refers only to border crossings. Here, as at all other places in this essay, "harm" refers only to border crossings.
13 Lawrence Krader, Lawrence Krader, Formation of the State Formation of the State (Englewood Cliffs, N.J.: Prentice-Hall, 1968), pp. 21-22. (Englewood Cliffs, N.J.: Prentice-Hall, 1968), pp. 21-22.
CHAPTER 6 / Further Considerations on the Argument for the State 1 Locke holds that men may put themselves in a civil society or protective a.s.sociation for, among other things, "a greater security against any that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature." Locke holds that men may put themselves in a civil society or protective a.s.sociation for, among other things, "a greater security against any that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature." Two Treatises of Government, Two Treatises of Government, ed. Peter Laslett (New York: Cambridge University Press, 1967), II, sect. 95. (All further references in this chapter are to the ed. Peter Laslett (New York: Cambridge University Press, 1967), II, sect. 95. (All further references in this chapter are to the Second Treatise, Second Treatise, unless otherwise noted.) But though it does not injure their freedom by reducing the rights which they have, it does injure their security by making it more likely that they will suffer injustice because they will be unable effectively to defend their own rights. Elsewhere Locke recognizes this point, discussing it in the context of arbitrary acts, though it applies as well to persons acting according to fixed and publicly specified rules: "He being in a much worse condition who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men" (sect. 137). unless otherwise noted.) But though it does not injure their freedom by reducing the rights which they have, it does injure their security by making it more likely that they will suffer injustice because they will be unable effectively to defend their own rights. Elsewhere Locke recognizes this point, discussing it in the context of arbitrary acts, though it applies as well to persons acting according to fixed and publicly specified rules: "He being in a much worse condition who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men" (sect. 137).
2 For a discussion of the applicability of dominance principles to some puzzling cases, see my "Newcomb"s Problem and Two Principles of Choice," in For a discussion of the applicability of dominance principles to some puzzling cases, see my "Newcomb"s Problem and Two Principles of Choice," in Essays in Honor of C. G Essays in Honor of C. G. Hempel, Hempel, ed. N. Rescher et al. (Holland: Reidel, 1969), pp. 114-146; also Martin Gardner"s "Mathematical Games" column, ed. N. Rescher et al. (Holland: Reidel, 1969), pp. 114-146; also Martin Gardner"s "Mathematical Games" column, Scientific American, Scientific American, July 1973, pp. 104-109, and my guest mathematical games column, July 1973, pp. 104-109, and my guest mathematical games column, Scientific American, Scientific American, March 1974, pp. 102-108. March 1974, pp. 102-108.
3 On the "prisoners" dilemma," see R. D. Luce and H. Raiffa, On the "prisoners" dilemma," see R. D. Luce and H. Raiffa, Games and Decisions Games and Decisions (New York: Wiley, 1957), pp. 94-102. (New York: Wiley, 1957), pp. 94-102.
4 On related issues see Thomas Sch.e.l.ling"s essay, "The Reciprocal Fear of Surprise Attack," On related issues see Thomas Sch.e.l.ling"s essay, "The Reciprocal Fear of Surprise Attack," The Strategy of Conflict The Strategy of Conflict (Cambridge, Ma.s.s.: Harvard University Press, 1960), chap. 9. (Cambridge, Ma.s.s.: Harvard University Press, 1960), chap. 9.
5 Since nothing is beyond the leaders of states, it would not be surprising if a nation A prohibited nation B from arming and incorporated B into A. claimed that Since nothing is beyond the leaders of states, it would not be surprising if a nation A prohibited nation B from arming and incorporated B into A. claimed that this this provided B"s citizens with protection, and thus const.i.tuted a recognition and fulfillment of A"s obligations to compensate them for the disadvantages the prohibition had imposed upon them. A would claim to be acting permissibly. It is left as an exercise for the reader to state why this cloak won"t cover such aggression. provided B"s citizens with protection, and thus const.i.tuted a recognition and fulfillment of A"s obligations to compensate them for the disadvantages the prohibition had imposed upon them. A would claim to be acting permissibly. It is left as an exercise for the reader to state why this cloak won"t cover such aggression.
6 This is This is not not to say that the const.i.tutional limits on free speech should be narrower than they are. But since responsibility can continue through the choices of others, perhaps universities properly may impose more stringent limitations on their faculty, occupying a position of special aura and prestige (do they still?), in their dealings with the students at their own universities. (It might also be held, in support of an inst.i.tutional standard more stringent than the const.i.tutional guarantee in this area, that the vocation of faculty members requires them to take ideas and words with especially great seriousness.) So to say that the const.i.tutional limits on free speech should be narrower than they are. But since responsibility can continue through the choices of others, perhaps universities properly may impose more stringent limitations on their faculty, occupying a position of special aura and prestige (do they still?), in their dealings with the students at their own universities. (It might also be held, in support of an inst.i.tutional standard more stringent than the const.i.tutional guarantee in this area, that the vocation of faculty members requires them to take ideas and words with especially great seriousness.) So perhaps perhaps something like the following something like the following narrow narrow principle is defensible: If there are actions which it would be legitimate for a university to punish or discipline students for doing, and which it would be legitimate for a university to punish or discipline faculty members for doing, then if a faculty member attempts to and intends to get students at his university to perform these actions and succeeds (as he had intended), then it would be legitimate for the university to discipline or punish the faculty member for this. I ignore here questions about what would be appropriate if the faculty member tries but through no fault or virtue of his own fails. I also ignore the messy questions about what channels of persuasion are covered by the principle: for example, speeches on campus outside cla.s.s, but not a column written in a local town or city newspaper. principle is defensible: If there are actions which it would be legitimate for a university to punish or discipline students for doing, and which it would be legitimate for a university to punish or discipline faculty members for doing, then if a faculty member attempts to and intends to get students at his university to perform these actions and succeeds (as he had intended), then it would be legitimate for the university to discipline or punish the faculty member for this. I ignore here questions about what would be appropriate if the faculty member tries but through no fault or virtue of his own fails. I also ignore the messy questions about what channels of persuasion are covered by the principle: for example, speeches on campus outside cla.s.s, but not a column written in a local town or city newspaper.
7 I owe these questions to Jerrold Katz. I owe these questions to Jerrold Katz.
8 "But because no political society can be, nor subsist, without having in itself the power to preserve the property and, in order thereunto, punish the offenses of all those of that society, there and there only is political society where "But because no political society can be, nor subsist, without having in itself the power to preserve the property and, in order thereunto, punish the offenses of all those of that society, there and there only is political society where everyone everyone of the members has quitted his natural power to judge of and punish breaches of the law of nature, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it" (sect. 87, italics mine). Does Locke mean that the existence of independents prevents there from being political society in the area, or that the independents are not of the members has quitted his natural power to judge of and punish breaches of the law of nature, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it" (sect. 87, italics mine). Does Locke mean that the existence of independents prevents there from being political society in the area, or that the independents are not members members of a political society which does exist in the area? (Compare also sect. 89, which does not resolve the issue.) Locke holds that "absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil government at all" (which seems to use the requirements that of a political society which does exist in the area? (Compare also sect. 89, which does not resolve the issue.) Locke holds that "absolute monarchy, which by some men is counted the only government in the world, is indeed inconsistent with civil society, and so can be no form of civil government at all" (which seems to use the requirements that all all be included) and goes on to say, "Wherever any persons are who have not such an authority to appeal to for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion" (sect. 90). be included) and goes on to say, "Wherever any persons are who have not such an authority to appeal to for the decision of any difference between them, there those persons are still in the state of nature; and so is every absolute prince, in respect of those who are under his dominion" (sect. 90).
9 Sections 74-76, 105-106, and 112 of the Sections 74-76, 105-106, and 112 of the Second Treatise Second Treatise might incline one to think that our situation does contain a compact, though note that Locke uses "consent" in these sections rather than "compact." Other sections, and the main thrust of the work, incline one in the opposite direction and have so inclined Locke"s commentators. One might also, in considering Locke"s discussion of money (sects. 36, 37, 47, 48, 50, 184), play down phrases like "invention of money," "agreed that a little piece of yellow metal ... should be worth," "by mutual consent," "phantastical imaginary value," and so on, and instead emphasize "tacit agreement," so as to try to get Locke"s description to fit the story we have told in Chapter 2. might incline one to think that our situation does contain a compact, though note that Locke uses "consent" in these sections rather than "compact." Other sections, and the main thrust of the work, incline one in the opposite direction and have so inclined Locke"s commentators. One might also, in considering Locke"s discussion of money (sects. 36, 37, 47, 48, 50, 184), play down phrases like "invention of money," "agreed that a little piece of yellow metal ... should be worth," "by mutual consent," "phantastical imaginary value," and so on, and instead emphasize "tacit agreement," so as to try to get Locke"s description to fit the story we have told in Chapter 2.
10 The distinction between "ent.i.tlement" and "desert" is discussed by Joel Feinberg in his essay, "Justice and Personal Desert," reprinted in his The distinction between "ent.i.tlement" and "desert" is discussed by Joel Feinberg in his essay, "Justice and Personal Desert," reprinted in his Doing and Deserving Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970), pp. 55-87. If legitimacy were tied to desert and merit rather than to ent.i.tlement (which it isn"t), then a dominant protective agency might have it by meriting its dominant market position. (Princeton, N.J.: Princeton University Press, 1970), pp. 55-87. If legitimacy were tied to desert and merit rather than to ent.i.tlement (which it isn"t), then a dominant protective agency might have it by meriting its dominant market position.
11 Statement I below expresses Statement I below expresses a"s a"s being ent.i.tled to wield the power, whereas being ent.i.tled to wield the power, whereas a" a"s being ent.i.tled to be the one that wields that power is expressed by statement 2 or 3.
1. . a is . a is the individual x such that the individual x such that x x wields power wields power P P and and x x is ent.i.tled to wield is ent.i.tled to wield P P. and P P is (almost) all the power there is. is (almost) all the power there is.2. a is ent.i.tled to be a is ent.i.tled to be the individual the individual x x such that such that x x wields power wields power P P and and x x is ent.i.tled to wield is ent.i.tled to wield P P, and P P is (almost) all the power there is. is (almost) all the power there is.3. a is ent.i.tled to be a is ent.i.tled to be the individual the individual x x such that such that x x wields power wields power P P and and x x is ent.i.tled to wield is ent.i.tled to wield P P and and x is ent.i.tled that P x is ent.i.tled that P be (almost) all the power there is. be (almost) all the power there is.
12 Rothbard imagines that somehow, in a free society, "the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty." Rothbard imagines that somehow, in a free society, "the decision of any two courts will be considered binding, i.e., will be the point at which the court will be able to take action against the party adjudged guilty." Power and Market Power and Market (Menlo Park, Calif.: Inst.i.tute for Humane Studies, 1970), p. 5. (Menlo Park, Calif.: Inst.i.tute for Humane Studies, 1970), p. 5. Who Who will consider it binding? Is the person against whom the judgment goes morally bound to go along with it? (Even if he knows that it is unjust, or that it rests on a factual mistake?) Why is anyone who has not in advance agreed to such a two-court principle bound by it? Does Rothbard mean anything other than that he expects agencies won"t act until two independent courts (the second being an appeals court) have agreed? Why should it be thought that this fact tells us anything about what it is morally permissible for anyone to do, or tells us anything about the authoritative settling of disputes? will consider it binding? Is the person against whom the judgment goes morally bound to go along with it? (Even if he knows that it is unjust, or that it rests on a factual mistake?) Why is anyone who has not in advance agreed to such a two-court principle bound by it? Does Rothbard mean anything other than that he expects agencies won"t act until two independent courts (the second being an appeals court) have agreed? Why should it be thought that this fact tells us anything about what it is morally permissible for anyone to do, or tells us anything about the authoritative settling of disputes?
13 The contract-like view would have to be stated carefully, so as not to allow unfairly finding a corrupt judge guilty of crimes. The contract-like view would have to be stated carefully, so as not to allow unfairly finding a corrupt judge guilty of crimes.
14 See David Lewis, See David Lewis, Convention Convention (Cambridge, Ma.s.s.: Harvard University Press, 1969), for a philosophical elaboration of Sch.e.l.ling"s notion of a coordination game: note especially Lewis" discussion of social contracts in Chapter 3. Our account of the state involves less intentional coordination of action with some other individuals than does Mises" account of a medium of exchange described above in Chapter 2. (Cambridge, Ma.s.s.: Harvard University Press, 1969), for a philosophical elaboration of Sch.e.l.ling"s notion of a coordination game: note especially Lewis" discussion of social contracts in Chapter 3. Our account of the state involves less intentional coordination of action with some other individuals than does Mises" account of a medium of exchange described above in Chapter 2.
Interesting and important questions we cannot pursue here are the extent to which, and under what conditions, clients who give a protective agency whatsoever special legitimacy it possesses bear responsibility for its violations of others" rights, which they did not "authorize" it to do; and what they must do to avoid being responsible for this, (See Hugo Bedau, "Civil Disobedience and Personal Responsibility for Injustice," The Monist, The Monist, 54 (October 1970), 517-535. 54 (October 1970), 517-535.
15 For the first view see Rothbard, For the first view see Rothbard, Man. Economy, and State. Man. Economy, and State. vol. 2 (Los Angeles: Nash, 1971), p. 654; for the second see, for example, Ayn Rand, "Patents and Copyrights," vol. 2 (Los Angeles: Nash, 1971), p. 654; for the second see, for example, Ayn Rand, "Patents and Copyrights," in Capitalism: the Unknown Ideal in Capitalism: the Unknown Ideal (New York: New American Library, 1966), pp. 125-129. (New York: New American Library, 1966), pp. 125-129.
16 As we have construed the rationale underlying such systems, at any rate. Alan Dershowitz has reminded me that it is possible that some alternative nonpreventive reasons for prohibiting private enforcement of justice might be produced. Were such reasons to survive scrutiny, it would be incorrect to make the strong claim that all legal systems that prohibit private enforcement of justice As we have construed the rationale underlying such systems, at any rate. Alan Dershowitz has reminded me that it is possible that some alternative nonpreventive reasons for prohibiting private enforcement of justice might be produced. Were such reasons to survive scrutiny, it would be incorrect to make the strong claim that all legal systems that prohibit private enforcement of justice presuppose presuppose the legitimacy of the legitimacy of some some preventive considerations. preventive considerations.
CHAPTER 7 / Distributive Justice.
1 The reader who has looked ahead and seen that the second part of this chapter discusses Rawls" theory mistakenly may think that every remark or argument in the first part against alternative theories of justice is meant to apply to, or antic.i.p.ate, a criticism of Rawls" theory. This is not so; there are other theories also worth criticizing. The reader who has looked ahead and seen that the second part of this chapter discusses Rawls" theory mistakenly may think that every remark or argument in the first part against alternative theories of justice is meant to apply to, or antic.i.p.ate, a criticism of Rawls" theory. This is not so; there are other theories also worth criticizing.
2 See, however, the useful book by Boris Bittker, See, however, the useful book by Boris Bittker, The Case for Black Reparations The Case for Black Reparations (New York: Random House, 1973). (New York: Random House, 1973).
3 F. A. Hayek, F. A. Hayek, The Const.i.tution of Liberty The Const.i.tution of Liberty (Chicago: University of Chicago Press, 1960), p. 87 (Chicago: University of Chicago Press, 1960), p. 87 4 This question does not imply that they will tolerate any and every patterned distribution. In discussing Hayek"s views, Irving Kristol has recently speculated that people will not long tolerate a system that yields distributions patterned in accordance with value rather than merit. (" "When Virtue Loses All Her Loveliness"-Some Reflections on Capitalism and "The Free Society," " This question does not imply that they will tolerate any and every patterned distribution. In discussing Hayek"s views, Irving Kristol has recently speculated that people will not long tolerate a system that yields distributions patterned in accordance with value rather than merit. (" "When Virtue Loses All Her Loveliness"-Some Reflections on Capitalism and "The Free Society," " The Public Interest, The Public Interest, Fall 1970, pp. 3-15.) Kristol, following some remarks of Hayek"s, equates the merit system with justice. Since some case can be made for the external standard of distribution in accordance with benefit to others, we ask about a weaker (and therefore more plausible) hypothesis. Fall 1970, pp. 3-15.) Kristol, following some remarks of Hayek"s, equates the merit system with justice. Since some case can be made for the external standard of distribution in accordance with benefit to others, we ask about a weaker (and therefore more plausible) hypothesis.
5 Varying situations continuously from that limit situation to our own would force us to make explicit the underlying rationale of ent.i.tlements and to consider whether ent.i.tlement considerations lexicographically precede the considerations of the usual theories of distributive justice, so that the Varying situations continuously from that limit situation to our own would force us to make explicit the underlying rationale of ent.i.tlements and to consider whether ent.i.tlement considerations lexicographically precede the considerations of the usual theories of distributive justice, so that the slightest slightest strand of ent.i.tlement outweighs the considerations of the usual theories of distributive justice. strand of ent.i.tlement outweighs the considerations of the usual theories of distributive justice.
6 See the selection from John Henry MacKay"s novel, See the selection from John Henry MacKay"s novel, The Anarchists. The Anarchists. reprinted in Leonard Krimmerman and Lewis Perry, eds., reprinted in Leonard Krimmerman and Lewis Perry, eds., Patterns Patterns of of Anarchy Anarchy (New York: Doubleday Anchor Books, 1966), in which an individualist anarchist presses upon a communist anarchist the following question: "Would you, in the system of society which you call "free Communism" prevent individuals from exchanging their labor among themselves by means of their own medium of exchange? And further: Would you prevent them from occupying land for the purpose of personal use?" The novel continues: "[the] question was not to be escaped. If he answered "Yes!" he admitted that society had the right of control over the individual and threw overboard the autonomy of the individual which he had always zealously defended; if on the other hand, he answered "No!" he admitted the right of private property which he had just denied so emphatically.... Then he answered "In Anarchy any number of men must have the right of forming a voluntary a.s.sociation, and so realizing their ideas in practice. Nor can I understand how any one could justly be driven from the land and house which he uses and occupies ... every serious man must declare himself: for Socialism, and thereby for force and against liberty, or for Anarchism, and thereby for liberty and against force." " In contrast, we find Noam Chomsky writing, "Any consistent anarchist must oppose private ownership of the means of production," "the consistent anarchist then ... will be a socialist ... of a particular sort." Introduction to Daniel Guerin, (New York: Doubleday Anchor Books, 1966), in which an individualist anarchist presses upon a communist anarchist the following question: "Would you, in the system of society which you call "free Communism" prevent individuals from exchanging their labor among themselves by means of their own medium of exchange? And further: Would you prevent them from occupying land for the purpose of personal use?" The novel continues: "[the] question was not to be escaped. If he answered "Yes!" he admitted that society had the right of control over the individual and threw overboard the autonomy of the individual which he had always zealously defended; if on the other hand, he answered "No!" he admitted the right of private property which he had just denied so emphatically.... Then he answered "In Anarchy any number of men must have the right of forming a voluntary a.s.sociation, and so realizing their ideas in practice. Nor can I understand how any one could justly be driven from the land and house which he uses and occupies ... every serious man must declare himself: for Socialism, and thereby for force and against liberty, or for Anarchism, and thereby for liberty and against force." " In contrast, we find Noam Chomsky writing, "Any consistent anarchist must oppose private ownership of the means of production," "the consistent anarchist then ... will be a socialist ... of a particular sort." Introduction to Daniel Guerin, Anarchism: From Theory to Practice Anarchism: From Theory to Practice (New York: Monthly Review Press, 1970), pages xiii, xv. (New York: Monthly Review Press, 1970), pages xiii, xv.
7 Collective Choice and Social Welfare, Collective Choice and Social Welfare, Holden-Day, Inc., 1970, chaps. 6 and 6 *. Holden-Day, Inc., 1970, chaps. 6 and 6 *.
8 Oppression will be less noticeable if the background inst.i.tutions do not prohibit certain actions that upset the patterning (various exchanges or transfers of ent.i.tlement), but rather prevent them from being done, by nullifying them. Oppression will be less noticeable if the background inst.i.tutions do not prohibit certain actions that upset the patterning (various exchanges or transfers of ent.i.tlement), but rather prevent them from being done, by nullifying them.
9 See Gregory Vlastos, "The Individual as an Object of Love in Plato" in his See Gregory Vlastos, "The Individual as an Object of Love in Plato" in his Platonic Studies Platonic Studies (Princeton: Princeton University Press, 1973), pp. 3-34. (Princeton: Princeton University Press, 1973), pp. 3-34.
10 Further details which this statement should include are contained in my essay "Coercion," in Further details which this statement should include are contained in my essay "Coercion," in Philosophy, Science, and Method, Philosophy, Science, and Method, ed. S. Morgenbesser, P. Suppes, and M. White (New York: St. Martin, 1969). ed. S. Morgenbesser, P. Suppes, and M. White (New York: St. Martin, 1969).
11 On the themes in this and the next paragraph, see the writings of Armen Alchian On the themes in this and the next paragraph, see the writings of Armen Alchian 12 Compare this with Robert Paul Wolff"s "A Refutation of Rawls" Theorem on Justice," Compare this with Robert Paul Wolff"s "A Refutation of Rawls" Theorem on Justice," Journal of Philosophy, Journal of Philosophy, March 31, 1966, sect. 2. Wolff"s criticism does not apply to Rawls" conception under which the baseline is fixed by the difference principle. March 31, 1966, sect. 2. Wolff"s criticism does not apply to Rawls" conception under which the baseline is fixed by the difference principle.
13 I discuss overriding and its moral traces in "Moral Complications and Moral Structures," I discuss overriding and its moral traces in "Moral Complications and Moral Structures," Natural Law Forum, Natural Law Forum, 1968, pp. 1-50. 1968, pp. 1-50.
14 Does the principle of compensation (Chapter 4) introduce patterning considerations? Though it requires compensation for the disadvantages imposed by those seeking security from risks, it is not a patterned principle. For it seeks to remove only those disadvantages which prohibitions inflict or. those who might present risks to others, not all disadvantages. It specifies an obligation on those who impose the prohibition, which stems from their own particular acts, to remove a particular complaint those prohibited may make against them. Does the principle of compensation (Chapter 4) introduce patterning considerations? Though it requires compensation for the disadvantages imposed by those seeking security from risks, it is not a patterned principle. For it seeks to remove only those disadvantages which prohibitions inflict or. those who might present risks to others, not all disadvantages. It specifies an obligation on those who impose the prohibition, which stems from their own particular acts, to remove a particular complaint those prohibited may make against them.
15 Cambridge, Ma.s.s.: Harvard University Press, 1971. Cambridge, Ma.s.s.: Harvard University Press, 1971.
16 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 4. p. 4.
17 See Milton Friedman, See Milton Friedman, Capitalism and Freedom Capitalism and Freedom (Chicago: University of Chicago Press, 1962), p. 165. (Chicago: University of Chicago Press, 1962), p. 165.
18 On the question of why the economy contains firms (of more than one person), and why each individual does not contract and recontract with others, see Ronald H. Coase, "The Nature of the Firm," in On the question of why the economy contains firms (of more than one person), and why each individual does not contract and recontract with others, see Ronald H. Coase, "The Nature of the Firm," in Readings in Price Theory. Readings in Price Theory. ed. George Stigler and Kenneth Boulding (Homewood, III.: Irwin, 1952); and Armen A. Alchian and Harold Demsetz, "Production, Information Costs and Economic Organization," ed. George Stigler and Kenneth Boulding (Homewood, III.: Irwin, 1952); and Armen A. Alchian and Harold Demsetz, "Production, Information Costs and Economic Organization," American Economic Review, American Economic Review, 1972, 777-795. 1972, 777-795.
19 We do not, however, a.s.sume here or elsewhere the satisfaction of those conditions specified in economists" artificial model of so-called "perfect compet.i.tion." One appropriate mode of a.n.a.lysis is presented in Israel M. Kirzner, We do not, however, a.s.sume here or elsewhere the satisfaction of those conditions specified in economists" artificial model of so-called "perfect compet.i.tion." One appropriate mode of a.n.a.lysis is presented in Israel M. Kirzner, Market Theory and the Price System Market Theory and the Price System (Princeton, N.J.: Van Nostrand, 1963); see also his (Princeton, N.J.: Van Nostrand, 1963); see also his Compet.i.tion and Entrepreneurship Compet.i.tion and Entrepreneurship (Chicago: University of Chicago Press, 1973). (Chicago: University of Chicago Press, 1973).
20 See Marc Blaug, See Marc Blaug, Economic Theory in Retrospect Economic Theory in Retrospect (Homewood, III.: Irwin, 1968), chap. II, and the references cited therein. For a recent survey of issues about the marginal productivity of capital, see G. C. Harcourt, "Some Cambridge Controversies in the Theory of Capital," (Homewood, III.: Irwin, 1968), chap. II, and the references cited therein. For a recent survey of issues about the marginal productivity of capital, see G. C. Harcourt, "Some Cambridge Controversies in the Theory of Capital," Journal of Economic Literature, Journal of Economic Literature, 7, no. 2 (June 1969), 369-405 7, no. 2 (June 1969), 369-405 21 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 12. p. 12.
22 Rawls, Rawls, Theory of Justice, Theory of Justice, pp. 14-15. pp. 14-15.
23 Rawls, Rawls, Theory of Justice, Theory of Justice, sect. 16, especially p. 98. sect. 16, especially p. 98.
24 Here we simplify the content of 5, but not to the detriment of our present discussion. Also, of course, beliefs other than 5, when conjoined with 3 would justify the inference to 4; for example belief in the material conditional "If 3, then 4." It is something like 5, though, that is relevant to our discussion here. Here we simplify the content of 5, but not to the detriment of our present discussion. Also, of course, beliefs other than 5, when conjoined with 3 would justify the inference to 4; for example belief in the material conditional "If 3, then 4." It is something like 5, though, that is relevant to our discussion here.
25 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 15. p. 15.
26 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 103. p. 103.
27 But recall the reasons why using magnitudes of ent.i.tlement does not capture accurately the ent.i.tlement principle (note on p. 157, this chapter). But recall the reasons why using magnitudes of ent.i.tlement does not capture accurately the ent.i.tlement principle (note on p. 157, this chapter).
28 Some years ago, Hayek argued Some years ago, Hayek argued (The Const.i.tution of Liberty, (The Const.i.tution of Liberty, chap. 3) that a free capitalist society, over time, raises the position of those worst off more than any alternative inst.i.tutional structure; to use present terminology, he argued that chap. 3) that a free capitalist society, over time, raises the position of those worst off more than any alternative inst.i.tutional structure; to use present terminology, he argued that it it best satisfies the end-state principle of justice formulated by the difference principle. best satisfies the end-state principle of justice formulated by the difference principle.
29 This is especially serious in view of the weakness of Rawls" reasons (sect. 82) for placing the liberty principle prior to the difference principle in a lexicographic ordering. This is especially serious in view of the weakness of Rawls" reasons (sect. 82) for placing the liberty principle prior to the difference principle in a lexicographic ordering.
30 "The idea of the original position is to set up a fair procedure so that any principle agreed to will be just. The aim is to use the notion of pure procedural justice as a basis for theory." Rawls, "The idea of the original position is to set up a fair procedure so that any principle agreed to will be just. The aim is to use the notion of pure procedural justice as a basis for theory." Rawls, Theory of Justice, Theory of Justice, p. 136. p. 136.
31 Thomas Scanlon, Jr. , "Rawls" Theory of Justice," Thomas Scanlon, Jr. , "Rawls" Theory of Justice," University of Pennsylvania Law Review, University of Pennsylvania Law Review, 121, No. 5, May 1973, p. 1064. 121, No. 5, May 1973, p. 1064.
32 See my "Moral Complications and Moral Structures," See my "Moral Complications and Moral Structures," Natural Law Forum, Natural Law Forum, 13, 1968, especially pp. 11-21. 13, 1968, especially pp. 11-21.
33 Rawls, Rawls, Theory of Justice, Theory of Justice, p, 72. Rawls goes on to discuss what he calls a liberal interpretation of his two principles of justice, which is designed to eliminate the influence of social contingencies, but which "intuitively, still appears defective ... [for] it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents ... distributive shares are decided by the outcome of the natural lottery; and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural a.s.sets than by historical and social fortune" (pp 73-74). p, 72. Rawls goes on to discuss what he calls a liberal interpretation of his two principles of justice, which is designed to eliminate the influence of social contingencies, but which "intuitively, still appears defective ... [for] it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents ... distributive shares are decided by the outcome of the natural lottery; and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural a.s.sets than by historical and social fortune" (pp 73-74).
34 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 104. p. 104.
35 Rawls. Rawls. Theory of Justice, Theory of Justice, pp. 311-312. pp. 311-312.
36 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 15. p. 15.
37 Rawls, Rawls, Theory of Justice. Theory of Justice. pp. 538-541. pp. 538-541.
38 "In order to show that the principles of justice are based in part on envy it would have to be established that one or more of the conditions of the original position arose from this propensity "In order to show that the principles of justice are based in part on envy it would have to be established that one or more of the conditions of the original position arose from this propensity "Theory of Justice "Theory of Justice. p. 538.
39 For example: For example: 1. Differences between any two persons" holdings should be morally deserved; morally undeserved differences should not exist.2. Differences between persons in natural a.s.sets are morally undeserved.3. Differences between persons partially determined by other differences that are undeserved are themselves undeserved.Therefore,4. Differences between persons" holdings shouldn"t be partially determined by differences in their natural a.s.sets.
40 Rawls, Rawls, Theory of Justice. Theory of Justice. p. 310. In the remainder of this section, Rawls goes on to criticize the conception of distribution according to moral desert. p. 310. In the remainder of this section, Rawls goes on to criticize the conception of distribution according to moral desert.
41 "No reason need be given for ... an equal distribution of benefits-for that is natural"-self-evidently right and just, and needs no justification, since it is in some sense conceived as being self-justified.... The a.s.sumption is that equality needs no reasons, only inequality does so; that uniformity, regularity, similarity, symmetry, ... need not be specially accounted for, whereas differences, unsystematic behavior, changes in conduct, need explanation and, as a rule, justification. If I have a cake and there are ten persons among whom I wish to divide it, then if I give exactly one-tenth to each, this will not, at any rate automatically, call for justification; whereas if I depart from this principle of equal division I am expected to produce a special reason. It is some sense of this, however latent, that makes equality an idea which has never seemed intrinsically eccentric..." Isaiah Berlin, "Equality," reprinted in Frederick A. Olafson, ed. "No reason need be given for ... an equal distribution of benefits-for that is natural"-self-evidently right and just, and needs no justification, since it is in some sense conceived as being self-justified.... The a.s.sumption is that equality needs no reasons, only inequality does so; that uniformity, regularity, similarity, symmetry, ... need not be specially accounted for, whereas differences, unsystematic behavior, changes in conduct, need explanation and, as a rule, justification. If I have a cake and there are ten persons among whom I wish to divide it, then if I give exactly one-tenth to each, this will not, at any rate automatically, call for justification; whereas if I depart from this principle of equal division I am expected to produce a special reason. It is some sense of this, however latent, that makes equality an idea which has never seemed intrinsically eccentric..." Isaiah Berlin, "Equality," reprinted in Frederick A. Olafson, ed. Justice and Social Policy Justice and Social Policy (Englewood Cliffs, N.J.: Prenuce-Hall, 1961). p. 131. To pursue the a.n.a.logy with mechanics further, note that it is a substantive theoretical position which specifies a particular state or situation as one which requires no explanation whereas deviations from it are to be explained in terms of external forces. See Ernest Nagel"s discussion of D"Alembert"s attempt to provide an (Englewood Cliffs, N.J.: Prenuce-Hall, 1961). p. 131. To pursue the a.n.a.logy with mechanics further, note that it is a substantive theoretical position which specifies a particular state or situation as one which requires no explanation whereas deviations from it are to be explained in terms of external forces. See Ernest Nagel"s discussion of D"Alembert"s attempt to provide an a priori a priori argument for Newton"s first law of motion. argument for Newton"s first law of motion. [The Structure of Science. [The Structure of Science. (New York: Harcourt, Brace, and World, 1961), pp. 175-177.] (New York: Harcourt, Brace, and World, 1961), pp. 175-177.]
42 But see also our discussion below of Rawls" view of natural abilities as a collective a.s.set. But see also our discussion below of Rawls" view of natural abilities as a collective a.s.set.
43 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 179. p. 179.
44 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 102. p. 102.
45 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 27. p. 27.
46 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 183. p. 183.
47 Rawls, Rawls, Theory of Justice, Theory of Justice, p. 102. p. 102.
48 "But isn"t justice to be tempered with compa.s.sion?" Not by the guns of the state. When private persons choose to transfer resources to help others, this fits within the ent.i.tlement conception of justice. "But isn"t justice to be tempered with compa.s.sion?" Not by the guns of the state. When private persons choose to transfer resources to help others, this fits within the ent.i.tlement conception of justice.
CHAPTER 8 / Equality, Envy, Exploitation, Etc.
1 For a useful consideration of various arguments for equality which are not at the most fundamental level, see Walter J. Blum and Harry Kalven, Jr., For a useful consideration of various arguments for equality which are not at the most fundamental level, see Walter J. Blum and Harry Kalven, Jr., The Uneasy Case for Progressive Taxation, The Uneasy Case for Progressive Taxation, 2nd ed. (Chicago: University of Chicago Press, 1963). 2nd ed. (Chicago: University of Chicago Press, 1963).
2 Bernard Williams, "The Idea of Equality," in Bernard Williams, "The Idea of Equality," in Philosophy, Politics, and Society, Philosophy, Politics, and Society, 2nd ser., ed. Peter Laslett and W. G. Runciman (Oxford: Blackwell, 1962), pp. 110-131; reprinted in Joel Feinberg, ed., 2nd ser., ed. Peter Laslett and W. G. Runciman (Oxford: Blackwell, 1962), pp. 110-131; reprinted in Joel Feinberg, ed., Moral Concepts Moral Concepts (New York: Oxford University Press, 1969). (New York: Oxford University Press, 1969).