Anarchy, State and Utopia Part 4

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

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

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

THE PROVISO.

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

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

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

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

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

SECTION II.

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

SOCIAL COOPERATION.

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

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

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

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

How does social cooperation change things so that the same ent.i.tlement principles that apply to the noncooperative cases become inapplicable or inappropriate to cooperative ones? It might be said that one cannot disentangle the contributions of distinct one cannot disentangle the contributions of distinct individuals who cooperate; everything is everyone's joint product. On this joint product, or on any portion of it, each person plausibly will make claims of equal strength; all have an equally good claim, or at any rate no person has a distinctly better claim than any other. Somehow (this line of thought continues), it must be decided how this total product of joint social cooperation (to which individual ent.i.tlements do not apply differentially) is to be divided up: this is the problem of distributive justice. individuals who cooperate; everything is everyone's joint product. On this joint product, or on any portion of it, each person plausibly will make claims of equal strength; all have an equally good claim, or at any rate no person has a distinctly better claim than any other. Somehow (this line of thought continues), it must be decided how this total product of joint social cooperation (to which individual ent.i.tlements do not apply differentially) is to be divided up: this is the problem of distributive justice.

Don't individual ent.i.tlements apply to parts of the cooperatively produced product? First, suppose that social cooperation is based upon division of labor, specialization, comparative advantage, and exchange; each person works singly to transform some input he receives, contracting with others who further transform or transport his product until it reaches its ultimate consumer. People cooperate in making things but they work separately; each person is a miniature firm.18 The products of each person are easily identifiable, and exchanges are made in open markets with prices set compet.i.tively, given informational constraints, and so forth. In such a system of social cooperation, what is the task of a theory of justice? It might be said that whatever holdings result will depend upon the exchange ratios or prices at which exchanges are made, and therefore that the task of a theory of justice is to set criteria for "fair prices." This is hardly the place to trace the serpentine windings of theories of a just price. It is difficult to see why these issues should even arise here. People are choosing to make exchanges with other people and to transfer ent.i.tlements, with no restrictions on their freedom to trade with any other party at any mutually acceptable ratio. The products of each person are easily identifiable, and exchanges are made in open markets with prices set compet.i.tively, given informational constraints, and so forth. In such a system of social cooperation, what is the task of a theory of justice? It might be said that whatever holdings result will depend upon the exchange ratios or prices at which exchanges are made, and therefore that the task of a theory of justice is to set criteria for "fair prices." This is hardly the place to trace the serpentine windings of theories of a just price. It is difficult to see why these issues should even arise here. People are choosing to make exchanges with other people and to transfer ent.i.tlements, with no restrictions on their freedom to trade with any other party at any mutually acceptable ratio.19 Why does such sequential social cooperation, linked together by people's voluntary exchanges, raise any special problems about how things are to be distributed? Why isn't the appropriate (a not inappropriate) set of holdings just the one which Why does such sequential social cooperation, linked together by people's voluntary exchanges, raise any special problems about how things are to be distributed? Why isn't the appropriate (a not inappropriate) set of holdings just the one which actually occurs actually occurs via this process of mutually-agreed-to exchanges whereby people choose to give to others what they are ent.i.tled to give or hold? via this process of mutually-agreed-to exchanges whereby people choose to give to others what they are ent.i.tled to give or hold?

Let us now drop our a.s.sumption that people work independently, cooperating only in sequence via voluntary exchanges, and instead consider people who work together jointly to produce something. Is it now impossible to disentangle people's respective contributions? The question here is not whether marginal productivity theory is an appropriate theory of fair or just shares, but whether there is some coherent notion of identifiable marginal product. It seems unlikely that Rawls' theory rests on the strong claim that there is no such reasonably serviceable notion. Anyway, once again we have a situation of a large number of bilateral exchanges: owners of resources reaching separate agreements with entrepreneurs about the use of their resources, entrepreneurs reaching agreements with individual workers, or groups of workers first reaching some joint agreement and then presenting a package to an entrepreneur, and so forth. People transfer their holdings or labor in free markets, with the exchange ratios (prices) determined in the usual manner. If marginal productivity theory is reasonably adequate, people will be receiving, in these voluntary transfers of holdings, roughly their marginal products.ax But if the notion of marginal product were so ineffective that factors' marginal products in actual situations of joint production could not be identified by hirers or purchasers of the factors, then the resulting distribution to factors would not be patterned in accordance with marginal product. Someone who viewed marginal productivity theory, where it was applicable, as a patterned theory of justice, as a patterned theory of justice, might think that such situations of joint production and indeterminate marginal product provided an opportunity for some theory of justice to enter to determine appropriate exchange ratios. But an ent.i.tlement theorist would find acceptable whatever distribution resulted from the party's voluntary exchanges. might think that such situations of joint production and indeterminate marginal product provided an opportunity for some theory of justice to enter to determine appropriate exchange ratios. But an ent.i.tlement theorist would find acceptable whatever distribution resulted from the party's voluntary exchanges. ay ay The questions about the workability of marginal productivity theory are intricate ones. The questions about the workability of marginal productivity theory are intricate ones.20 Let us merely note here the strong personal incentive for owners of resources to converge to the marginal product, and the strong market pressures tending to produce this result. Employers of factors of productions are not all dolts who don't know what they're doing, transferring holdings they value to others on an irrational and arbitrary basis. Indeed, Rawls' position on inequalities requires that separate contributions to joint products be isolable, to some extent at least. For Rawls goes out of his way to argue that inequalities are justified if they serve to raise the position of the worst-off group in the society, if without the inequalities the worst-off group would be even more worse off. These serviceable inequalities stem, at least in part, from the necessity to provide incentives to certain people to perform various activities or fill various roles that not everyone can do equally well. (Rawls is Let us merely note here the strong personal incentive for owners of resources to converge to the marginal product, and the strong market pressures tending to produce this result. Employers of factors of productions are not all dolts who don't know what they're doing, transferring holdings they value to others on an irrational and arbitrary basis. Indeed, Rawls' position on inequalities requires that separate contributions to joint products be isolable, to some extent at least. For Rawls goes out of his way to argue that inequalities are justified if they serve to raise the position of the worst-off group in the society, if without the inequalities the worst-off group would be even more worse off. These serviceable inequalities stem, at least in part, from the necessity to provide incentives to certain people to perform various activities or fill various roles that not everyone can do equally well. (Rawls is not not imagining that inequalities are needed to fill positions that everyone can do equally well, or that the most drudgery-filled positions that require the least skill will command the highest income.) But imagining that inequalities are needed to fill positions that everyone can do equally well, or that the most drudgery-filled positions that require the least skill will command the highest income.) But to whom to whom are the incentives to be paid? To which performers of what activities? When it is necessary to provide incentives to some to perform their productive activities, there is no talk of a joint social product from which no individual's contribution can be disentangled. If the product was all that are the incentives to be paid? To which performers of what activities? When it is necessary to provide incentives to some to perform their productive activities, there is no talk of a joint social product from which no individual's contribution can be disentangled. If the product was all that inextricably joint, it couldn't be known that the extra incentives were going to the crucial persons; and it couldn't be known that the additional product produced by these now motivated people is greater than the expenditure to them in incentives. So it couldn't be known whether the provision of incentives was efficient or not, whether it involved a net gain or a net loss. But Rawls' discussion of justifiable inequalities presupposes that these things can be known. And so the claim we have imagined about the indivisible, nonpart.i.tionable nature of the joint product is seen to dissolve, leaving the reasons for the view that social cooperation creates special problems of distributive justice otherwise not present, unclear if not mysterious.

TERMS OF COOPERATION AND THE DIFFERENCE PRINCIPLE.

Another entry into the issue of the connection of social cooperation with distributive shares brings us to grips with Rawls' actual discussion. Rawls imagines rational, mutually disinterested individuals meeting in a certain situation, or abstracted from their other features not provided for in this situation. In this hypothetical situation of choice, which Rawls calls "the original position," they choose the first principles of a conception of justice that is to regulate all subsequent criticism and reform of their inst.i.tutions. While making this choice, no one knows his place in society, his cla.s.s position or social status, or his natural a.s.sets and abilities, his strength, intelligence, and so forth.

The principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circ.u.mstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.21

What would persons in the original position agree to?

Persons in the initial situation would choose two ... principles: the first requires equality in the a.s.signment of basic rights and duties, while the second holds that social and economic inequalities, for example, inequalities of wealth and authority are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society. These principles rule out justifying inst.i.tutions on the grounds that the hards.h.i.+ps of some are offset by a greater good in the aggregate. It may be expedient but it is not just that some should have less in order that others may prosper. But there is no injustice in the greater benefits earned by a few provided that the situation of persons not so fortunate is thereby improved. The intuitive idea is that since everyone's well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated. Yet this can be expected only if reasonable terms are proposed. The two principles mentioned seem to be a fair agreement on the basis of which those better endowed, or more fortunate in their social position, neither of which we can be said to deserve, could expect the willing cooperation of others when some workable scheme is a necessary condition of the welfare of all.22

This second principle, which Rawls specifies as the difference principle, holds that the inst.i.tutional structure is to be so designed that the worst-off group under it is at least as well off as the worst-off group (not necessarily the same group) would be under any alternative inst.i.tutional structure. If persons in the original position follow the minimax policy in making the significant choice of principles of justice, Rawls argues, they will choose the difference principle. Our concern here is not whether persons in the position Rawls describes actually would minimax and actually would choose the particular principles Rawls specifies. Still, we should question why individuals in the original position would choose a principle that focuses upon groups, rather than individuals. Won't application of the minimax principle lead each person in the original position to favor maximizing the position of the worst-off individual? individual? To be sure, this principle would reduce questions of evaluating social inst.i.tutions to the issue of how the unhappiest depressive fares. Yet avoiding this by moving the focus to groups (or representative individuals) seems To be sure, this principle would reduce questions of evaluating social inst.i.tutions to the issue of how the unhappiest depressive fares. Yet avoiding this by moving the focus to groups (or representative individuals) seems ad hoc, ad hoc, and is inadequately motivated for those in the individual position. and is inadequately motivated for those in the individual position.23 Nor is it clear which groups are appropriately considered; why exclude the group of depressives or alcoholics or the representative paraplegic? Nor is it clear which groups are appropriately considered; why exclude the group of depressives or alcoholics or the representative paraplegic?

If the difference principle is not satisfied by some inst.i.tutional structure J, then under J J some group some group G G is worse off than it would be under another inst.i.tutional structure is worse off than it would be under another inst.i.tutional structure I I that satisfies the principle. If another group F is better off under that satisfies the principle. If another group F is better off under J J than it would be under the than it would be under the I I favored by the difference principle, is this sufficient to say that under favored by the difference principle, is this sufficient to say that under J J "some ... have less in order that others may prosper"? (Here one would have in mind that "some ... have less in order that others may prosper"? (Here one would have in mind that G G has less in order that has less in order that F F prosper. Could one also make the same statement about prosper. Could one also make the same statement about I? I? Does Does F F have less under have less under I I in order that in order that G G may prosper?) Suppose that in a society the following situation prevailed: may prosper?) Suppose that in a society the following situation prevailed: 1. Group G G has amount has amount A A and group and group F F has amount has amount B, B, with with B B greater than greater than A. A. Also things could be arranged differently so that Also things could be arranged differently so that G G would have more than A, and would have more than A, and F F would have less than B. (The different arrangement might involve a mechanism to transfer some holdings from F to G.) would have less than B. (The different arrangement might involve a mechanism to transfer some holdings from F to G.)Is this sufficient to say2. . G is badly off because F because F is well off; is well off; G G is badly off is badly off in order that F in order that F be well off; be well off; F's F's being well off makes being well off makes G G badly off; G is badly badly off; G is badly off on account of F's off on account of F's being well off; G is not better off being well off; G is not better off because of how because of how well off F is. well off F is.If so, does the truth of statement 2 depend on G's being in a worse position than F? There is yet another possible inst.i.tutional structure K that transfers holdings from the worse-off group G to F, F, making G even more worse off. Does the possibility making G even more worse off. Does the possibility of K of K make it true to say that, under make it true to say that, under J J, F F is not (even) better off because of how well off is not (even) better off because of how well off G G is? is?We do not normally hold that the truth of a subjunctive (as in 1) is alone sufficient for the truth of some indicative causal statement (as in 2). It would improve my life in various ways if you were to choose to become my devoted slave, supposing I could get over the initial discomfort. Is the cause of my present state your not becoming my slave? Because your enslaving yourself to a poorer person would improve his lot and worsen yours, are we to say that the poor person is badly off because you are as well off as you are; has he less in order that you may prosper? From3. . If P P were to do act A then Q would not be in situation S. were to do act A then Q would not be in situation S.we will conclude4. P's not doing A is responsible for Q's being in situation S; P's not doing A causes Q to be in S.only if we also also believe that believe that5. P ought to do act A, or P has a duty to do act A, or P has an obligation to do act A, and so forth.24 Thus the inference from 3 to 4, in this case, Thus the inference from 3 to 4, in this case, presupposes presupposes 5. One cannot argue from 3 to 4 as one step in order to get to 5. The statement that in a particular situation some have less in order that others may prosper is often based upon the very evaluation of a situation or an inst.i.tutional framework that it is introduced to support. Since this evaluation does not follow merely from the subjunctive (for example, 1 or 3) an independent argument must be produced for it. 5. One cannot argue from 3 to 4 as one step in order to get to 5. The statement that in a particular situation some have less in order that others may prosper is often based upon the very evaluation of a situation or an inst.i.tutional framework that it is introduced to support. Since this evaluation does not follow merely from the subjunctive (for example, 1 or 3) an independent argument must be produced for it. az azRawls holds, as we have seen, thatsince everyone's well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing coooperation of everyone taking part in it, including those less well situated. Yet this can be expected only if reasonable terms are proposed. The two principles mentioned seem to be a fair agreement on the basis of which those better endowed or more fortunate in their social position ... could expect the willing cooperation of others when some workable scheme is a necessary condition of the welfare of all.25 No doubt, the difference principle presents terms on the basis of which those less well endowed would be willing to cooperate. (What better better terms could they propose for themselves?) But is this a fair agreement on the basis of which those terms could they propose for themselves?) But is this a fair agreement on the basis of which those worse worse endowed could expect the endowed could expect the willing willing cooperation of others? With regard to the existence of gains from social cooperation, the situation is symmetrical. The better endowed gain by cooperating with the worse endowed, cooperation of others? With regard to the existence of gains from social cooperation, the situation is symmetrical. The better endowed gain by cooperating with the worse endowed, and and the worse endowed gain by cooperating with the better endowed. Yet the difference principle is not neutral between the better and the worse endowed. Whence the asymmetry? the worse endowed gain by cooperating with the better endowed. Yet the difference principle is not neutral between the better and the worse endowed. Whence the asymmetry?

Perhaps the symmetry is upset if one asks how much how much each gains from the social cooperation. This question might be understood in two ways. How much do people benefit from social cooperation, as compared to their individual holdings in a each gains from the social cooperation. This question might be understood in two ways. How much do people benefit from social cooperation, as compared to their individual holdings in a non noncooperative scheme? That is, how much is T Tt-St, for each individual i? Or, alternatively, how much does each individual gain from general social cooperation, as compared, not with no no cooperation, but with more limited cooperation? The latter is the more appropriate question with regard to general social cooperation. For failing general agreement on the principles to govern how the benefits of general social cooperation are to be held, not everyone will remain in a noncooperative situation if there is some other beneficial cooperative arrangement involving some, but not all, people, whose partic.i.p.ants can agree. These people will partic.i.p.ate in this more narrow cooperative arrangement. To focus upon the benefits of the better and the worse endowed cooperating together, we must try to imagine less extensive schemes of part.i.tioned social cooperation in which the better endowed cooperate only among themselves and the worse endowed cooperate only among themselves, with no cross-cooperation. The members of both groups gain from the internal cooperation within their respective groups and have larger shares than they would if there were no social cooperation at all. An individual benefits from the wider system of extensive cooperation between the better and the worse endowed to the extent of his incremental gain from this wider cooperation; namely, the amount by which his share under a scheme of general cooperation is greater than it would be under one of limited intragroup (but not cross-group) cooperation. General cooperation will be of more benefit to the better or to the worse endowed if (to pick a simple criterion) the mean incremental gain from general cooperation (when compared with limited intragroup cooperation) is greater in one group than it is in the other. cooperation, but with more limited cooperation? The latter is the more appropriate question with regard to general social cooperation. For failing general agreement on the principles to govern how the benefits of general social cooperation are to be held, not everyone will remain in a noncooperative situation if there is some other beneficial cooperative arrangement involving some, but not all, people, whose partic.i.p.ants can agree. These people will partic.i.p.ate in this more narrow cooperative arrangement. To focus upon the benefits of the better and the worse endowed cooperating together, we must try to imagine less extensive schemes of part.i.tioned social cooperation in which the better endowed cooperate only among themselves and the worse endowed cooperate only among themselves, with no cross-cooperation. The members of both groups gain from the internal cooperation within their respective groups and have larger shares than they would if there were no social cooperation at all. An individual benefits from the wider system of extensive cooperation between the better and the worse endowed to the extent of his incremental gain from this wider cooperation; namely, the amount by which his share under a scheme of general cooperation is greater than it would be under one of limited intragroup (but not cross-group) cooperation. General cooperation will be of more benefit to the better or to the worse endowed if (to pick a simple criterion) the mean incremental gain from general cooperation (when compared with limited intragroup cooperation) is greater in one group than it is in the other.

One might speculate about whether there is an inequality between the groups' mean incremental gains and, if so, which way it goes. If the better-endowed group includes those who manage to accomplish something of great economic advantage to others, such as new inventions, new ideas about production or ways of doing things, skill at economic tasks, and so on,ba it is difficult to avoid concluding that the it is difficult to avoid concluding that the less less well endowed gain more than the better endowed do from the scheme of general cooperation. What follows from this conclusion? I do not mean to imply that the better endowed should get even more than they get under the ent.i.tlement system of general social cooperation. well endowed gain more than the better endowed do from the scheme of general cooperation. What follows from this conclusion? I do not mean to imply that the better endowed should get even more than they get under the ent.i.tlement system of general social cooperation.bb What does follow from the conclusion is a deep suspicion of imposing, in the name of fairness, constraints upon voluntary social cooperation (and the set of holdings that arises from it) so that those already benefiting most from this general cooperation benefit even more! What does follow from the conclusion is a deep suspicion of imposing, in the name of fairness, constraints upon voluntary social cooperation (and the set of holdings that arises from it) so that those already benefiting most from this general cooperation benefit even more!

Rawls would have us imagine the worse-endowed persons say something like the following: "Look, better endowed: you gain by cooperating with us. If you want our cooperation you'll have to accept reasonable terms. We suggest these terms: We'll cooperate with you only if we get as much as possible. as much as possible. That is, the terms of our cooperation should give us that maximal share such that, if it was tried to give us more, we'd end up with less." How generous these proposed terms are might be seen by imagining that the better endowed make the almost symmetrical opposite proposal: "Look, worse endowed: you gain by cooperating with That is, the terms of our cooperation should give us that maximal share such that, if it was tried to give us more, we'd end up with less." How generous these proposed terms are might be seen by imagining that the better endowed make the almost symmetrical opposite proposal: "Look, worse endowed: you gain by cooperating with us. us. If you want our cooperation you'll have to accept reasonable terms. We propose these terms: We'll cooperate with you so long as If you want our cooperation you'll have to accept reasonable terms. We propose these terms: We'll cooperate with you so long as we we get as much as possible. That is, the terms of our cooperation should give us the maximal share such that, if it was tried to give us more, we'd end up with less." If these terms seem outrageous, as they are, why don't the terms proposed by those worse endowed seem the same? Why shouldn't the better endowed treat this latter proposal as beneath consideration, supposing someone to have the nerve explicitly to state it? get as much as possible. That is, the terms of our cooperation should give us the maximal share such that, if it was tried to give us more, we'd end up with less." If these terms seem outrageous, as they are, why don't the terms proposed by those worse endowed seem the same? Why shouldn't the better endowed treat this latter proposal as beneath consideration, supposing someone to have the nerve explicitly to state it?

Rawls devotes much attention to explaining why those less well favored should not complain at receiving less. His explanation, simply put, is that because the inequality works for his advantage, someone less well favored shouldn't complain about it; he receives more more in the unequal system than he would in an equal one. (Though he might receive still more in another unequal system that placed someone else below him.) But Rawls discusses the question of whether those in the unequal system than he would in an equal one. (Though he might receive still more in another unequal system that placed someone else below him.) But Rawls discusses the question of whether those more more favored will or should find the terms satisfactory favored will or should find the terms satisfactory only only in the following pa.s.sage, where A and in the following pa.s.sage, where A and B B are any two representative men with A being the more favored: are any two representative men with A being the more favored: The difficulty is to show that A has no grounds for complaint. Perhaps he is required to have less than he might since his having more would result in some loss to B. B. Now what can be said to the more favored man? To begin with, it is clear that the well-being of each depends on a scheme of social cooperation without which no one could have a satisfactory life. Secondly, we can ask for the willing cooperation of everyone only if the terms of the scheme are reasonable. The difference principle, then, seems to be a fair basis on which those better endowed, or more fortunate in their social circ.u.mstances, could expect others to collaborate with them when some workable arrangement is a necessary condition of the good of all. Now what can be said to the more favored man? To begin with, it is clear that the well-being of each depends on a scheme of social cooperation without which no one could have a satisfactory life. Secondly, we can ask for the willing cooperation of everyone only if the terms of the scheme are reasonable. The difference principle, then, seems to be a fair basis on which those better endowed, or more fortunate in their social circ.u.mstances, could expect others to collaborate with them when some workable arrangement is a necessary condition of the good of all.26 What Rawls imagines being said to the more favored men does not show that these men have no grounds for complaint, nor does it at all diminish the weight of whatever complaints they have. That the well-being of all depends on social cooperation without which no one could have a satisfactory life could also be said to the less well endowed by someone proposing any other principle, including that of maximizing the position of the best endowed. Similarly for the fact that we can ask for the willing cooperation of everyone only if the terms of the scheme are reasonable. The question is: What terms would be would be reasonable? What Rawls imagines being said thus far merely sets up his problem; it doesn't distinguish his proposed difference principle from the almost symmetrical counterproposal that we imagined the better endowed making, or from any other proposal. Thus, when Rawls continues, "The difference principle, then, seems to be a fair basis on which those best endowed, or more fortunate in their social circ.u.mstances, could expect others to collaborate with them when some workable arrangment is a necessary condition of the good of all," the presence of the "then" in his sentence is puzzling. Since the sentences which precede it are neutral between his proposal and any other proposal, the conclusion that the difference principle presents a fair basis for cooperation reasonable? What Rawls imagines being said thus far merely sets up his problem; it doesn't distinguish his proposed difference principle from the almost symmetrical counterproposal that we imagined the better endowed making, or from any other proposal. Thus, when Rawls continues, "The difference principle, then, seems to be a fair basis on which those best endowed, or more fortunate in their social circ.u.mstances, could expect others to collaborate with them when some workable arrangment is a necessary condition of the good of all," the presence of the "then" in his sentence is puzzling. Since the sentences which precede it are neutral between his proposal and any other proposal, the conclusion that the difference principle presents a fair basis for cooperation cannot cannot follow from what precedes it in this pa.s.sage. Rawls is merely repeating that it seems reasonable; hardly a convincing reply to anyone to whom it doesn't