When students first learn about Rawls’s difference principle, they often assume Rawls intends the principle to be applied directly to every transaction. I can’t accept a pay raise unless this somehow indirectly benefits full-time janitors. But Rawls doesn’t intend for the principle to work that way. Rawls thinks that rules–when they are properly internalized and when people mostly comply with them–have systematic utility or disutility. For Rawls, the difference principle is a standard not for individual transactions, but for entire systems of property right rules along with the bigger political structures in which they are embedded.

So, by analogy, we might say that the point of the game of football is ultimately to have fun. But referees are not supposed to judge individual moves on the field according to whether they maximize fun–if referees did that, the game wouldn’t work. It wouldn’t be much fun. If referees just changed the game on the fly with the goal of maximizing fun, it would mess up the game. Part of what produces the fun is the tension and challenge created by having set rules. The rules can be changed for various reasons (to make the game more fun, safer, faster, or whatnot), but not on the fly.

So it goes for Rawls. The difference principle isn’t itself meant to be a rule that governs individual property exchanges, but rather a rule of recognition by which we determine which property (and other) legal rules are best.

Something like this is going in Locke and Nozick, too. Locke and Nozick ask what could possibly justify the institution of property. In a world in which nothing is owned, everyone has a permission right to use anything and go anywhere she pleases. When someone first encloses a field and says, “This is mine!,” he seems in the first instance to just limit and reduce everyone else’s freedom. As Rousseau would ask, why should anyone play along with that?

Locke’s answer (and Nozick toys with a similar answer) is that appropriating stuff as one’s own is permissible provided one leaves enough and as good for others. Exactly what the rules are for original appropriation is a complicated question, and neither gives us a full theory. Still, Locke and Nozick both add that the “enough and has good” standard is easily met: A bit of land might be 10,000 times more productive when owned and farmed then when unowned, and under the right conditions, people other than the owner end up sharing in the surplus. Sure, privatization in the first place reduces others’ liberty, but they are more than compensated for it by becoming much richer. (In a sense, privatization reduces people’s negative liberty to just go wherever they please, but increases their positive liberty by imbuing them with more power to achieve their ends.)

As David Schmidtz points out, most contemporary Americans didn’t appropriate any land for themselves, but they are vastly better off that the people who first got here and did the original appropriating. I’d have to be misinformed or masochistic to want to trade my lot with that any of the first human settlers of the Americas, or even any of the first white settlers. Schmidtz adds: because of the problem of the tragic commons, it might even be that the imperative to leave enough and as good for others requires us to parcel and privatize.

The Lockean Proviso is itself most plausible when seen as part of a systematic justification of private property. It’s not plausible if it’s meant to govern every individual transaction. It doesn’t seem plausible that I am allowed to homestead some land in Montana only if everyone else benefits from my homesteading. That’s probably an impossibly strict standard. Rather, I’m justified in appropriating the land provided I play by the proper appropriation rules in the game “private property,” and the game of “private property” is itself justified because it systematically leads to certain results.

But then the questions are: Which private property game is best? Why? What count as good enough results to justify the game? Rawls, Locke, and Nozick think that some sort of private property game will be justifiable, and they have both deontological and consequentialist arguments on behalf of the game. But Nozick and Locke have less strict consequentialist standards than Rawls; Rawls thinks that to be justified, a private property system has to perform better (in one particular way) than Nozick or Locke do.

By analogy, if Nozick and Rawls were debating the best rules for football, they might make different trade-offs between safety and speed. They both agree we should play football, but they disagree about the standards for judging the best set of rules for football. They disagree about some of the empirical facts. As a result, they disagree about what’s the optimal set of on-the-ground rules.

Crude libertarians often say that advocates of social justice believe the government can steal your stuff to feed people. Well, perhaps all government taxes do turn out to be theft. But it’s worth noting the Rawls doesn’t see himself as advocating theft. Rather, see the debate between Nozick and him as this: They disagree on what the proper standards are for judging the game of private property. In part, because of that (but also because of empirical disagreements about how institutions work), they disagree about what set of private property rules ends up being justified. If Nozick is right, then the entitlement theory is right. In a just world, where people always followed the entitlement theory, government that taxed me to feed the homeless would be stealing from me. If Rawls is right, then some other account of property rights is correct, and when the government taxes me to feed the homeless, that doesn’t count as theft, because the government is entitled to the money and I am not.

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Call for Abstracts

for the Molinari Society’s next Eastern Symposium, to be held in conjunction with the American Philosophical Association Eastern Division meeting, January 6-9, 2016, in Washington DC. (Note that this meeting is the week after New Year’s, rather than, as in past years, just before New Year’s. This later time is expected to be the new normal for the Eastern APA henceforth.)

Symposium Topic:
Police Abuse: Solutions Beyond the State

Submission Deadline:
18 May 2015


Abuses of power by police officers, especially abuses motivated by racial bias, are at last beginning to receive increased public scrutiny. Anarchists have long regarded police misconduct as a deep-rooted and systemic problem, one requiring radical rather than reformist solutions, but have not always agreed about what a radical solution should look like. Some anarchists have advocated a system of private security firms held in check by market competition; others have looked to volunteer and mutual-aid watch groups responsible to the communities they patrol; still others have rejected both models as insufficiently different from the government police system they’re supposed to replace.

Would/should there be police, or something like police, in an anarchist society? If so, how might they be restrained from abuses? If not, what institutions or practices might secure protection from invasive behaviour instead?

Abstracts should be submitted for the 2016 Eastern Symposium by 18 May, 2015. Submissions from any point of view (anarchist or otherwise) are welcome. Please submit an abstract only if you expect to be able to present the paper in person at the Symposium. (Final papers should be of appropriate scope and length to be presented within 15-30 minutes.) Submitting authors will be notified of the acceptance or rejection of their papers by 31 May, 2015.

Submit abstracts as e-mail attachments, in Word .doc or .docx format, PDF, or ODT, to longrob@auburn.edu.

For any questions or information, contact Roderick T. Long at the above email address.

(In other news, the Molinari Symposium originally scheduled for this year’s Pacific APA in Vancouver has been postponed to next year in San Francisco; details to follow in due course.)

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Setting politics aside to start with:

I’m unsurprisingly a strong supporter of the original Religious Freedom Restoration Act and its state-level counterparts that sought to protect religious believers against state interference of the sort that was legalized by Smith v Oregon.

I’m much more uneasy about RFRA defenses in civil lawsuits between two private parties. There is a lot to be said for having a general, impersonal private law, such that I don’t have to know the identity of the other party in order to know the law that will govern our transaction. I’ve quoted this before in a related context; recall Voltaire’s classic statement of the doux commerce thesis:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

That’s a major, valuable civil accomplishment, and not to be thrown away lightly. If I can’t transact with people on the same terms because each of us is potentially carrying around a religiously-specific contract or tort law, that’s a real loss. I don’t say that a unified private law is required by justice or abstract principle; I’m too much of a pluralist and a multiculturalist for that. But I think we have reason to be very nervous about abandoning it, and reason to treat lightly and deliberately. I do not get the feeling that the trend toward super-RFRAs that extend to private transactions has been adopted with due care.

As to private-sector discrimination, I’m of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake.

But just because I think that the florist and the wedding-cake baker ought to be free to refuse customers in general doesn’t mean that I think “antidiscrimination statute governing sexual orientation plus highly particular religious exemption” is a good second-best. Sometimes a legal kludge can make for a tolerable compromise. Sometimes when one area of law is broken, bending another can get you roughly where you should be. I’m not at all convinced that that’s the case here. Writing an exemption to antidiscrimination law specifically for Christians who don’t approve of homosexuality is ugly; and the generalized version we see in RFRAs like Indiana’s does damage (the scale of which we can’t yet guess) to the generality of the private law.

Now unbracketing the politics:
A pox on both your houses. There’s a tremendous amount of deliberate and inflammatory misinformation flying around– on one side, as if the IRFRA were nothing but a license to discriminate on the basis of sexual orientation, and on the other as if there were no relevant differences between IRFRA and other RFRAs. (Most state RFRas don’t apply to horizontal suits between private parties; there’s a circuit split on whether to interpret the federal RFRA as so applying, but the statute doesn’t say that it does.)

George Stephanopolous yesterday went after Mike Pence with what he clearly thought was the very clever demand to get a yes or no answer to the question of whether it’s now legal to discriminate against gays and lesbians in Indiana, when
a) It already was; Indiana doesn’t have a statewide ban on private sector discrimination on the basis of sexual orientation (there are city- and county-level laws), and
b) the right answer is not to know the answer, as all RFRAs prescribe a standard for judicial review rather than predetermining answers. It’s up to a competent court to adjudicate whether there is a compelling state interest in preventing discrimination against a particular gay person by a particular conservative religious believer in a particular transaction.

On the other hand, Pence and the bill’s legislative supporters are obviously being disingenuous as hell about the motivation for passing a RFRA with this particular shape at this particular time. It is no secret that, politically, in Indiana, right now, this RFRA is centrally about same-sex marriage. People who have, in the last two years, unsuccessfully defended a ban on same-sex marriage in federal court and unsuccessfully tried to constitutionalize that ban make unconvincing defenders of liberty; they’re just switching legal strategies.

By the same token, and as I’ve said before, the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.

Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.[…] Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights.

The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist. Imagine the different history of America if conservatives in the late 1990s had energetically supported civil unions provided that they not use the word “marriage,” instead of pursuing the most aggressive and restrictionist DOMAs they could get away with in each context, such that where conservative majorities were strongest even ordinary contractual rights that might seem too much like marriage were prohibited, instead of mobilizing boycotts of firms that offered same-sex couples employment benefits! As it is, their defense of private sector liberty and the pluralism it makes possible is many days late and many dollars short. It kicked in only when, starting in the mid-2000s, the political tide turned.

That shouldn’t change our view of the right outcome; some particular cake baker shouldn’t lose his religious liberty because the movement that’s defending him now makes hypocritical arguments. But it does mean that the violin I hear playing when conservatives complain about the supposedly totalizing and compromise-rejecting agenda of same-sex-marriage supporters is very very small indeed.

Update: Michael Tanner offers some thoughts in a very similar spirit.

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