Rights Theory, Social Justice

More on Bleeding Hearts and Social Justice

As Andrew mentioned, both of us were on a panel about Bleeding Heart Libertarianism this week. Since he has posted his comments, and the blog has recently been buzzing with discussions about social justice, I thought I would post my comments as well. Here are some remarks about what motivated me to think of myself as a Bleeding Heart Libertarian.

Libertarians have Bleeding Hearts when they accept a certain necessary condition for justice. This is the condition that the least well off in society live on terms that are morally equivalent to the terms on which the better off live. That is, for a Bleeding Heart Libertarian, a society is just only if it treats the least well off morally the same as it treats the better off. Thus, like Matt writes, if it really were true that a free society worked to the detriment of the least well off, I would cease to be a libertarian.

This condition gives content to the way Bleeding Heart Libertarians care about social justice. So let’s call this the BHL-condition. How precisely to spell out the details of this condition is subject to disagreement. But the main idea, I believe, is one all Bleeding Hearts share.

So far so familiar, I guess. Yet the reasons for my endorsement of the BHL-condition are somewhat different from some of my co-bloggers. I am a Bleeding Heart Libertarian because of the importance I ascribe to treating people as right-holders. In my view, we cannot fully respect people as morally equal, free, and autonomous human beings unless we respect them as right-holders.

This is because the central function of rights is that they endow their possessors with the ability to say “no” to proposed interactions. If this is your house, I cannot enter it without your permission. If you have a right over your body, I cannot use it without your permission. And so on. (Whether the ability to say “no” is a necessary condition of being a right-holder is a different question, one on which I do not take a stance here.)

Rights, as I see it, are a direct implication of our moral equality. They ensure that, among equals, no one has the authority to tell others how to live. They ensure that, among equals, there are no natural bosses. Rights are also a direct implication of our moral freedom. As right-holders, we have decision-making authority over parts of the social world. And the possession of rights ensures that our decisions, and not those of others, will be determinative within these protected parts of the world. You get to decide what happens in your house. I get to decide what happens to my body.

The BHL-condition, as I see it, is a consequence of the demand that everyone in society is respected in the way right-holders ought to be respected. There are two ways in which this link can be made.


(1) The BHL-condition as a heuristic

This first motivation for the BHL-condition is as an evidentiary condition. If people are in fact respected as right-holders, we can expect that, as a rule (although not always), they will interact with others in ways that they consider beneficial. As a rule, then, a society in which people are respected as rights-holders will be one in which our interactions are positive-sum interactions. They foster win-win relationships. If such a society works the way it should, it will be one in which all of us can flourish together, living side by side. It will be a place in which everyone benefits from cooperation.

So when we observe the world we live in and see (when we do) that certain groups in society are not benefiting from social cooperation, this should give us pause. It is good evidence that they are not being treated in the way rights-holders ought to be treated. It is evidence that they are not able to enter into mutually beneficial interactions. In such a society we might look around to see if, say, resources are coercively extracted or withheld from people at the bottom to pay the bills of those with better political connections.


(2) The possibility-proof of social justice

The other motivation is more philosophical. If one is going to be a libertarian, I think one should be a Bleeding Heart Libertarian because (contrary to what Mark LeBar seems to think) a society that is purely rights-based could lead to unjust results even if no rights-violations occur. But a just society cannot contain injustices. So a just society cannot be purely rights-based.

The idea is this: suppose the world is exhaustively owned by private owners. And suppose that someone (let’s call him Dave) grows up and, upon becoming adult, has no property at all. Now Dave has to exist somewhere in the world. And because it’s exhaustively owned, this means Dave has to ask the owners for permission to enter their property. Suppose that every owner denies Dave access. In that case, Dave cannot but act in a way that violates someone’s property right.

The example is familiar,* but its implications are often overlooked by libertarians. The example constitutes a possibility-proof of a social injustice. For an injustice exists even though no one committed a wrong. The owners did Dave no wrong because, as right-holders, they were entitled to say “no” to Dave’s requests. And Dave did no wrong either, for Dave was a child until now. Nevertheless, Dave must violate someone’s property rights.

What is more, in this situation Dave is respected as neither a morally equal or morally free person. Dave is not a morally equal person because the other right-holders can effectively demand that Dave do as they wish. And he is not a morally free person because, lacking rights, Dave cannot exercise any control over a part of the social world.

Given that this is an injustice that arises through no individual wrongdoing, we may call this a social injustice. (Perhaps it is why Kevin calls it an emergent property of social interaction.) And it offers a fundamental motivation for the BHL-condition. As I said, it is a necessary condition of a just society that those on the bottom are treated on the same moral terms as the rest of society. They must be able to enjoy the same kind of rights as the rest. In the case of Dave this means he must own property in the external world. Without it, he is not fully respected as morally free and equal. Other people’s property rights, therefore, cannot protect them against takings that serve to give to Dave.

So if you think, with me, that individual rights matter. And if you think, with me, that respecting individuals means respecting them as rights-holders. Then you had better have a Bleeding Heart.


* The argument here should be familiar to anyone who has read the work of G.A. Cohen, or Hillel Steiner, or Eric Mack (and again). It also appears in Locke’s famous discussion of the “charity proviso” in the First Treatise.

  • Jason Sorens

    An alternative way of thinking about the problem is that a rights holder
    denying access to someone requiring access for survival commits an
    injustice. Nozick, for instance, seems to think this. Holding some of
    the sticks in a bundle of rights to X doesn’t imply that one holds all
    the sticks.

    • Basvandervossen

      Hi Jason,
      I do not think the individual right-holder commits an injustice. After all, if one person denies Dave access, there are plenty of others who might grant him access. Plus the point of their rights is to enable them to do just this: say no. The point is simply that at least some of their rights are impotent against Dave.

      • Jason Sorens

        I think A. John Simmons’ discussion (In Lockean Theory of Rights) of how people can be “specially placed” to offer assistance might be helpful here. If I am the one Dave comes to, then I am not within my rights to deny him; I commit an injustice even if there are others he could equally well have come to. It does seem odd to assert that X can have a right against Y, but that Y commits no injustice in denying X that right.

  • marklebar

    Bas, for this to be the objection, two things must be the case. First, Dave must be the subject of injustice. But you have not shown that that is the case, or at least it is not clear to me what injustice you think he suffers (at least without begging the question).. Second, it must be the case that nobody wronged him. But you have not shown that either. (Where was Dave the moment before the moment you are worried about? What space was he in then? If he was not the victim of injustice then, why is he now? And if he was, what was he doing before that?) I think this case gets all of its force by being abstracted from the real world in which individuals have obligations to others and the standing to hold others accountable for what they do. I think the more the case is fleshed out, the more difficult it will be to sustain the claim that both (1) and (2) occur together.

    I should also say that the example doesn’t work without stipulating some account of what rights we have that may or may not make sense. I don’t claim ex ante that we know what our obligations are to each other, and in what ways we can claim each other to be accountable. For example, it may well make sense to think of something like easements as holding with respect to our claims on one another. My only claim is that where we want to find a problem, we look to the responsibilities we owe each other. That is where the moral equality lies. And in fact I don’t know of any way to “socialize” our concern for justice without sacrificing that very same equality.

    • marklebar

      That said, I do think this is a better kind of case for thinking of social injustice as emergent, along the lines Kevin was suggesting. In fact, I think this is probably the most likely form such an argument could take. But I think it has no legs.

      • Basvandervossen

        Hi Mark.

        Thanks for the comments. However, I don’t see why Dave has to suffer the injustice for the social injustice to arise. All that needs to be the case is that (a) Dave would violate someone’s rights and (b) Dave would not do wrong. Both are true in the example.

        (If you don’t think so, consider this as “more flesh”: Suppose Dave is an orphan and Emily decided, out of the goodness of her heart, to raise him in her home. When Dave turns 18, Emily tells him it’s time for him to leave. Clearly Emily does not wrong Dave. She has been very good to him!)

        If (a) and (b) are true, then an injustice exists without individual wrongdoing. Which is all the possibility-proof needs.

        That said, I don’t think it’s far fetched at all to say that Dave is the subject of injustice. After all, in the example Dave is under duties that in the aggregate entail he cannot exist. I agree with Eric Mack that this is contrary to a robust understanding of the right to self-ownership. (I also agree with Eric that people have a right to own property, which right too is violated for Dave.)

        • marklebar

          Bas, your (a) clearly requires there to be a particular system of property rights (one that excludes real-world limitations on the obligations we can impose on either other through our claims to property). It’s not a general-purposes demonstration of the possibility of “social” injustice at all; if anything it is a warning against certain kinds of understandings of rights to property. And you haven’t shown why, if (a) is true, (b) is not true. (There is also an ambiguity between “doing wrong” and “wronging someone” here. That is not an innocent ambiguity. but I’m not sure how it affects the case.)

          Second, I don’t see any violation of any right to own property, at least construed plausibly (as Eric does), as the right to participate in a system of property ownership. That is a matter of moral standing. It’s not negated if you do not own property (apart from your own body and labor, which Dave owns).

          Finally, I think the case – even with Emily’s intervention – gets you to something that is bad, but it is question-begging to claim that bads are injustices. If nobody is treating Dave in ways that are incompatible with justice — incompatible with the obligations individuals bear to one another — that clearly is bad for Dave. What, on your view, is added by calling it “unjust”? On my view, a bad of this sort is an indicator that something has gone wrong in the way we understand ourselves to be obligated to others — as individuals. (I would think it would indicate some sort of easement, as I said, in those obligations.)

        • marklebar

          The other element I am suspicious of with this account is precisely its Cohen-like nature. Cohen’s moral arguments (e.g. those built on Able and Infirm) are bad moral philosophy. They are lifeboat cases, which are problematic for two reasons: (i) ordinary human life is not a lifeboat case, and we want to keep it that way, and (ii) they make the basic moral context one of direct engagement of wills. That in turn invites *exactly* the conditions that are hardest to resolve, where the object of one person’s will is precisely the domination of others’. Your case doesn’t work quite like that, but in its abstraction it accomplishes the same thing. It works by assuming that each person would exercise his or her will in such a way as to exclude Dave. Logically, that is possible. Logically, it is possible that our world could be a lifeboat case. But neither is actually the case, and that really matters for the ethical theorizing we do about it.

          • Basvandervossen

            Well, you deny (I think) that social justice is an impossibility. (More precisely, that it either reduces to individual injustices or is mysterious.) The example is supposed to be a possibility-proof: it shows that on a perfectly understandable view of justice social justice can arise. Of course you may disagree with that view of justice – as do I – but that’s besides the point. Social justice is a perfectly coherent concept.

            As to (b), I take it to be self-evident that Dave’s merely existing cannot mean Dave does wrong. I would not want to hang my hat on a view that denies this.

          • marklebar

            Bas, I did not deny that ‘social justice’ is a coherent concept. What I have challenged is that the idea that it has any normative force – that we can give any account of what it might be that has normative force. There might be differences in our expectations of moral theory here, but I take it that examples that work in a possible world of creatures who are not very much like us, in ways that are contingent but important, do not and ought not get much of a grip on our normative theorizing. Put another way, I’d think justice for them may or may not have any significance for understanding justice among us.

            As to (b), the point isn’t that it isn’t plausible. It’s that you need to show that it holds *even when Dave is violating sombody’s rights.* I doubt that by existing he *is* violating somebody’s rights, but that means there is something else about the example that is not right. You can stipulate that he is violating somebody’s rights, but that is simply to stipulate that there is *some* solution to the normative problem I’ve said ‘social justice’ faces.

          • Basvandervossen

            I’m starting to have the feeling we’re talking past each other. In any case, Dave is supposed to be exactly like you and I, living in a world exactly like ours, with property rights exactly like the ones we know. The only difference is that more of the earth is privately owned. I don’t see why thinking about such a case would not be informative.

            About (b): well, the example shows that Dave has to violate someone’s rights given a certain conception and extension of individual rights. You might say: that just shows there is a problem with such rights. And I agree. But the problem is not (indeed cannot be) that it allows individuals to wrong others. The problem is that it leads to what is best conceived as a social injustice,

          • marklebar

            Bas, the world is quite different than ours in important respects. Its inhabitants are not like us. There, *none* of them are interested in exchanging with Dave, and *none* of them are willing to voluntarily give space to someone in need of it. My claim is that, if human beings were like that, our moral norms (including our norms of property ownership) would be very different from what they are like. Our norms are developed for people like us — those of whom many (if not most) will willingly exchange, and where exchange is impossible due to handicap, will voluntarily provide aid. The example fails except under the assumption that its inhabitants are different in these ways. So while I grant that it is not only logically possible, but possible in a nearby-ish possible world, I claim that the normative facts in that world are different precisely because the non-normative facts are different. Given the degree to which our sociality is important to the kind of being we are, that is not a minor difference.

          • Basvandervossen

            I am fine with that. But note: you now accept that that certain moral facts depend on people like Dave not ending up in the situation I have described. This is simply to accept the BHL-condition.

          • Kevin

            Yes, but if Dave’s situation never actually exists, then the fact that it is theoretically possible is irrelevant.

            You might say, “well then there is no harm in having rules that apply just in case Dave’s situation ever arises”, but again that is only theoretical. In practice, people misidentify conditions and misapply rules, and I would argue that historical misapplication of “Dave’s entitlement rule” has caused more injustice than not having it.

            There is also something fundamentally contradictory about hypotheticals which use the premise that “no one will voluntarily help” in order to convince people to voluntarily vote to democratically coerce others. If a majority of people would vote to help, then someone or some group would help.

          • marklebar

            Bas, we may agree here. I think individuals *do* have obligations to render aid when they see others in Dave’s condition. But I’m not sure that is a requirement of justice (much less that it is a juridical or coercively-enforceable duty), and I think it *is* a matter of relations between individuals. If that is the BHL condition, then I accept it, as a matter of the moral relationships between individuals. In practice, that may address many of the conditions “social justice” is supposed to deal with. But the moral analysis of what the demands are, and how to understand them, is different than on the social justice perspective. I certainly don’t deny that people in Dave’s position give us compelling reason to relieve their distress, if exchange is not possible.

          • Basvandervossen

            Well, the point of the example above was to show that there could be cases in which injustices might arise without any particular individual failing to fulfill an obligation. That was supposed to show that social (in)justice is possible, and that we should therefore accept a necessary condition of no-social-injustice for libertarian theory. Frankly, I fail to see how your assertion that people should not fall into situations like Dave’s helps diffuse that argument, since it essentially expresses agreement with the conclusion. But I guess we’re not going to see eye to eye on that one.

          • marklebar

            True! I differentiate between situations that are bad and those that are unjust. (And actually situations that represent moral problems that don’t amount to injustice in between.) I think any plausible moral theory should do so. Dave’s situation is certainly one we as moral agents have reason to change if we can, but that is also true of deaths by tsunami or hurricane or what have you. But those deaths are not injustices. I think what we want by way of moral theory is one that is attentive to these distinctions. I don’t see that it is possible to do so while making a case for ‘social injustice’ that is somehow distinct from plain old individual injustice. Identifying cases in which there are conditions that decent moral agents would have reason to change doesn’t seem to me to do so. You can if you like call such conditions “unjust,” but only by losing the basic grip on what injustice is, in distinction from other forms of moral wrong, or bads (perhaps “setbacks to interests”). I think we would be unwise to incur that theoretical cost.

          • Damien S.

            But the world clearly is a lifeboat in this particular sense: lots of people are born without property rights in the world.

  • Bruno Mynthi Showers

    with regards to Dave: I have mixed feelings. On the one hand, I see no reason to disagree that a property rights regime could theoretically act in such a way that Dave would be denied access to even the barest subsistence through no fault of his own. But the proviso is that it seems very unlikely to actually occur in a system of free market transactions. And if in such a system Dave was still incapable of leveraging his labor to some use productive enough to induce property owners to want to pay him for it, it’s not clear to me that it would be unjust to deny him access to previously owned goods.

    • Basvandervossen

      Hi Bruno,

      You may be right. Perhaps Dave’s problem will take care of itself. And perhaps that is good enough to satisfy the BHL-condition. My point, though, was a more modest one: that a society better do this, lest if be unjust.

      • martinbrock

        He may be right except for that last statement. You seem clearly to say that denying Dave access to previously owned goods is unjust if Dave may not achieve even the barest subsistence without these goods.

      • Bruno Mynthi Showers

        Well, I don’t think that’s what I would say exactly (I think the various human actors involved would take care of the problem, including and primarily Dave himself).

        With regards to Nozick’s solution to this, I don’t conflate justice and morality. I think you can have/make moral claims that are not enforceable but are still meaningful. So while I might say, for example, that it would be immoral to deny Dave access to goods he needs for his survival, I might not agree that doing so is unjust – it could just be morally reprehensible, depending on the context.

        • Bruno Mynthi Showers

          I think I follow Roderick Long on this matter, unless I’ve badly misconceived his arguments

  • Devon Sanchez

    ” And because it’s exhaustively owned, this means Dave has to ask the owners for permission to enter their property. Suppose that every owner denies Dave access.”

    It’s a good thing that if this scenario were to exist, this would NEVER take place.

  • Hi Bas,

    Here’s a few thoughts. You say:

    “a society is just only if it treats the least well off morally the same as it treats the better off.”

    Isn’t that just empty? It is a version of Kant’s universalisation principle, which is notoriously empty. For example, ‘in this society everyone is treated the same in that each acquires the full set of rights and liberties as soon as he starts earning $40k a year.’ What about those who earn less? The same applies to them. You need a more substantive principle.

    You say:

    “if it really were true that a free society worked to the detriment of the least well off, I would cease to be a libertarian.”

    Isn’t that going to commit you to a fully egalitarian society? For, if there is any inequality at all, then some people will be worse off than others; but then society has worked to their detriment in that they are worse off; so, society has worked to the detriment of (those among them who are) the least well off.

    You say:

    “I am a Bleeding Heart Libertarian because of the importance I ascribe to treating people as right-holders.”

    People may be right-holders even in a highly stratified society. Second-class citzens have rights, just not so many as some other people do.

    You say:

    “…the central function of rights is that they endow their possessors with the ability to say “no” to proposed interactions…(Whether the ability to say “no” is a necessary condition of being a right-holder is a different question, one on which I do not take a stance here.)”

    I am puzzled. If the central function of rights is to endow a right-holder with the ability to say ‘no,’ why doesn’t that make the ability to say ‘no’ a necessary condition of being a right-holder? Incidentally, it should be the entitlement to say ‘no,’ not the ability (anyone who can talk has the ability).

    You say:

    “Rights, as I see it, are a direct implication of our moral equality.”

    That seems to be false. Surely the act-utilitarian who dismisses rights as nonsense still holds (or may hold, and typically does) that all people are morally equal – each counts for one in the utilitarian calculation.

    You say:

    “[Rights] ensure that, among equals, there are no natural bosses.”

    Again, that is false. People may have unequal rights.

    You say:

    “And the possession of rights ensures that our decisions, and not those of others, will be determinative within these protected parts of the world.”

    Only if rights are respected/enforced.

    You say:

    “a society in which people are respected as rights-holders will be one in which our interactions are positive-sum interactions.”

    Now that is plain false. If people have welfare rights (as, it seems, you desire), then many interactions will be zero-sum.

    You say:

    “So when we observe the world we live in and see (when we do) that certain groups in society are not benefiting from social cooperation…”

    How could one see that a person is not benefitting from social co-operation? Benefitting as compared with what? If the social co-operation is voluntary (would it even be co-operation if it were not?), then one might presume that people are engaging in it because they benefit from it (or, at least, they think that they do).

    You say:

    “Dave must violate someone’s property rights.”

    It does not follow. As Jason (above) points out, Nozick, e.g., builds the proviso into the theory of rights, so the right-holder does not have the right to say ‘no’ to Dave in those sorts of circumstances.

    • Basvandervossen

      Hi Danny,
      There’s a lot there. Let me just say three things.

      (1) You are right that the BHL-condition needs specifying. That formulation was purposely vague to cover all or at least most of the (different) specifications that people might give. The devil is in the details of course, but I would spell it out with a robust account of individual natural rights as types of rights that all persons must enjoy. (Because they need not enjoy identical tokens of rights, this does not entail egalitarianism.)

      (2) I deny that life in an unequal society is necessarily to the detriment of the least well off. It depends what is the comparison. I take the (sketch of the) rights-based story I give above to be the relevant base-line.

      (3) About Nozick, I agree. But that’s part of the point: unless Nozick had built in something like that, his view would entail potential injustice. Whether or not Nozick’s proviso is sufficient to satisfy an acceptable BHL-condition is a different question.

  • Fernando Teson

    Nice post, Bas. I have a simple question, however: why can’t Dave, observing that some of the land owners’ front yards are unkempt, offer his services as a gardener? Because, you may say, the owners may refuse the offer. Yet we all know people (my grandparents, for example) born in poverty who worked their way up as laborers and one day acquired their land and prospered. Was this process (essential to the libertarian vision) somehow tainted, since these folks could only get there through the contingent acceptance of their services and were therefore not treated as equals? I find this counterintuitive. Maybe Locke is right here: since we own our bodies, there are no Daves in the world. It will never be true that some people have no property. “Propertyless persons” is an empty set. We can always exchange our labor, which we own, for money, just as we can exchange any other object.

    • Basvandervossen

      Thanks Fernando. You are right of course: Dave can do this. But the problem is that all the land owners might choose not to hire Dave. Which gets us back in the problem.

      I also agree that Dave is not entirely propertyless because he owns his body. (I should emphasize though that I’m using an elliptical sense of “own” here. I don’t think Dave literally owns himself as a piece of property.) However, that still does not do away with the problem. For Dave’s “owned” body must exist somewhere in physical space, yet all physical space is owned by others.

      • Why are we getting hung up on the way in which some abstract hypothetical purely libertarian society might produce injustices against certain individuals in certain hypothetical situations, when there are so many actual injustices produced by the non-libertarian aspects of society right now?

        • Sean II

          Answer: because getting hung up on the way in which some abstract hypothetical purely libertarian society might produce injustices against certain individuals in certain hypothetical situations is what this place is for.

    • RIght. But conversely, let’s not presume the authors are saying that what your grandparents did isn’t *exactly* what ought to happen in a socially just society. It could be that the “social insitutions” that best advance the interests of those born into poverty are markets where they are maximally free to engage in any useful trade. And it could be that the argument of the BHLs is that we need to make sure that people on the lowest rung have the ability to engage in the market in a way that advances their interests.
      For instance, it seems blatantly obvious to me that occupational licensing and situations like the NY taxi medallion system directly work against the interests of the poorest people in society. That would count as a “social instutution” that promotes injustices.

  • j_m_h

    Overall I like the post though have not done more than a quick read so may have missed something more.

    I do notice that in this post and other recent posts the terminology seems to have shifted to “social injustice” rather than “social justice”. Are these two sides to the same coin or is it possible that the situation is asymmetric and we could have situations of social injustice without being able to show (and perhaps even rejecting) the existence of social justice?

    • Basvandervossen

      It’s a great question. And I’m not sure. My intuition is that the absence of social injustice entails social justice. But it’s a deep question and I need to think about it more.

  • tracycoyle

    I have this question about Dave. If a storekeeper has a supply of apples and over the course of the day people purchase them such that before closing the store runs out of apples, is a customer seeking apples being treated unjustly if there are none to be had? In the world exhaustively owned privately, did the owners obtain their property in some unjust manner? The fact that most physical things have an exhaustable supply does not mean once exhausted all future desirers of such are being treated unjustly. Dave’s position is not one of injustice, but the result of finite resources. You can suggest that in situations of finite resources everyone should be limited as to how much they can have, but even that would eventually reach the limit of use: everyone limited to a square meter of space. Then what?

    It appears that ‘justice’ means equality of outcome. In a universe of infinite variability, such natural outcomes would be rare and attempts to force them ‘unnatural’. In a golf match between myself and Tiger Woods, the outcome would likely be unequal, but it would not be an injustice. For each of us ‘rights-keepers’, the results of the use of our rights is not likely to be equality, nor should it be.

    • j_m_h

      I don’t see why you’re concluding justice = equal outcome. I don’t even think on could make the case for justice = equal opportunity from this post.

      • tracycoyle

        Why? Dave can’t express his rights as others can so the environment is unjust, he can’t have the same result others do – despite no action or impediment on their part. Dave lacks the opportunity to express his rights, and lacks the consequences of his ability to express his rights. Injustice is the lack of ability to express rights and the ability to enjoy the fruits of those actions. You may believe that only ‘consequence’ is the component of ‘equal outcome’, but it is also the ability to act.

        If justice is Dave being able to act as others do and injustice is the inability to act as others do then justice is the ability to act and reap the consequences of those acts.

        • j_m_h

          Got it, a bit different that what I thought you meant.

  • Lamont

    Thanks for writing this. I have two questions. First, would the acceptance of the self-ownership proviso, which you find in the Mack piece you cite, then be sufficient for being a BHL? Second, does belief in the idea of emergent injustice undermine the doctrine of historical entitlement? Or, do you want to say that rights weaken under certain circumstances?

    • Basvandervossen

      Hi Lamont. These are great questions. And I can’t fully answer them here. But in brief: (1) I am unsure whether Mack’s proviso is sufficient to satisfy (what I call) the BHL-condition. But it’s definitely at least part of what the condition requires. Whether more is required depends, in my view, whether there are other ways in which people like Dave can become unable to enjoy the full set of their natural rights.

      As to your question (2), it depends (of course) how you understand the historical entitlement theory. On what I have called a “pure” version of that theory (i.e. a version where the principles of acquisition, transfer, and rectification exhaust the scope of justice) the answer is yes. However, as some other commenters have pointed out, Nozick himself did not think Dave’s situation was consistent with justice. So his version of the historical entitlement is not pure in this sense either.

      I hope that helps.

  • j_m_h

    While it’s possible that others don’t owe Dave any obligation to grant access to their property, either from charity or via some market trade it seem that we should be asking if parents don’t incur some obligation with respect to their children in the world postulated.

    • shemsky

      My thoughts as well. I would like to know exactly how Dave came to find himself in the situation posed by this example.

      • Basvandervossen

        As I said above: suppose Dave’s an orphan. Emily has been taking care of him until he turns 18 and now tells him he has to find his own way in the world.

        • shemsky

          Sorry, I missed that.

  • Les Kyle Nearhood

    the possibility proof of social justice you give the hypothetical of
    the man who lives where every property is subsumed. Then you say that
    libertarians ignore the implications of this hypothetical. You are
    correct, because it is an absurd one. In the real world there is
    never going to exist such a total libertarian state, there is never
    going to exist such a wide ranging existence of “exhaustive
    property ownership”. And especially the two could not coexist
    since a dynamic market based economy would tend to less wealth
    stratification, not more.

    • Les Kyle Nearhood

      PS. Your hypothetical also ignores the actions of philanthropy and private charity.

  • Kevin

    Bas, Dave’s hypothetical is too abstract to properly judge because it fails to consider other essential moral factors:

    (1) The only plausible circumstances for Dave’s situation is when resources are so constrained that everyone is fighting for survival. But this significantly changes the justice of the scenario, doesn’t it?

    (2) Yes, Dave must violate someone’s rights simply by existing, but you are ignoring that violations of rights require _just_ punishment. What are the just consequences for Dave in this case?

  • mickey

    First, Dave is not without property as he has his body. Second, Dave probably has family and friends so why subject near or distant strangers to his demands? Third, the people forced to help Dave suffer injustice and are treated less morally free and equal. I do find Dave being universally denied horrible but it is unlikely and he is not more equal than the rest.

  • Sean II

    “…if it really were true that a free society worked to the detriment of the least well off, I would cease to be a libertarian.”

    This is what finally convinces me that I’m just a fan of the BHL blog, and not really a fan of the BHL project.

    It’s one thing to say “we should make some provision for those miserable buggers known as ‘the least well off’, even at the expense of some liberty, but let’s be stingy about that, and give up the least amount of liberty possible, and only on the strongest evidence that what we give up is really advancing that purpose and no other”.

    That I could get behind. But to make libertarianism itself stand or fall on the condition of humanity’s rump…that’s seems crazy to me. I’ll take your statement as your wrote it, Bas, to suggest that if the bottom 5% would do better under some static type of Franco-socialism, then you’d be all for it.

    Can you really mean that? Can you really mean you’d accept everything that entails, with no further worry for what such a system would do to humanity’s leading edge – to the most talented, most productive, most dynamic, etc?

    What if it turns out the least well off do 50% better under statism, but everyone else does 50% worse. That’s a lot of suffering, since the second category is much larger than the first. Do you still pull the trigger then? According to your statement, you’d have to.

    • Basvandervossen

      Sean, you are usually a thoughtful poster, but this is too much. Not-libertarian does not entail Franco, impoverishing 50% of the population or whatever other odious scenario you might cook up.

      • matt b

        Since I’ve been causing Sean so much grief, I think I’ll uncharacteristically agree with him in so far is I do think it’s important to address questions along the lines of “What if the bottom 20 did less well under system X than system Y but the top 80 did a lot better.” In other words, how much weight to do we attach to the state of the worst well off. It seems quite wrong to say that if we could improve the lot of the bottom 20 by 10000 and reduce the lot of the top 80 by 1 that it would not be justified. But reducing the lot of the top 80 by 100 to improve the lot of the bottom 20 by 1 seems clearly unjustified. So at what point do we say that enough weight has been accorded to the least well off in our moral considerations. How do we draw that line without being too stingy while also avoiding making the welfare of the least well off the be all and end all?

        • j_m_h

          Didn’t we already play this game in this blog?

        • good_in_theory

          But Bas didn’t convey anything like strict adherence to the MaxiMin principle…

          • Sean II

            As I pointed out five minutes ago, his phrasing could hardly have been any stricter. The only thing he didn’t do was name the principle.

          • matt b

            True, true. I was just wondering what he would put in place of the difference principle as well as in place of hard libertarianism.

        • Sean II

          Yes, and thank you. One thing that’s always bothered me about this least well-off business is the way any sense of proportion gets beaten down and thrown out the window. Overstatement rules the day: inequalities can only be tolerated if they work to the advantage of the least well-off, or I would cease to be a libertarian if I thought liberty would fail to serve the dregs of humanity, etc.

          Speaking as someone who once derived part of his income from gambling, that’s not how you should bet.

          If your standing in the original position with a 7% chance of being born into a trailer park, the correct amount of your liberty to trade away is 7%, tops. Not fucking all of it. No one spends his entire income on insurance. It’s rational to say: “Okay, 7% chance of being a born loser = a 7% hedge, in the form of a minimally decent safety net for born losers. When it comes to the other 93% of my social institutions, I want them designed to maximize my prospects in the very likely event that I won’t completely lose the birth lottery.”

          But hey, I guess Rawls must not have played poker with actual money.

          • matt b

            Sean, Sean, Sean. You should be writing comedy. So many writers try to be breezy and badass in their prose and you pull it off effortlessly every time. And I do agree that some clarification is in order regarding the moral weight accorded to the least well off. Straight answers here would be very much appreciated.

      • Sean II

        Hey, you’re the guy who said this: “”…if it really were true that a free society worked to the detriment of the least well off, I would cease to be a libertarian.”

        I’m just confronting you with one of the implications. You could respond by rephrasing: “If a free society worked to the detriment of the least well-off, I would start to have some serious questions …like how much detriment are we talking about, and how much liberty would it cost to ameliorate that, and is trading off liberty really the only or even the best way to do it, etc.”

        But you didn’t say that. Even after I gave you a second chance, you didn’t say that. You said that you would “cease to be a libertarian.” As in period, case closed, that label would no longer apply to you. I’m simply giving you the credit of assuming you chose such strong phrasing for a reason.

        (Also, I meant Franco- the prefix, not Franco the man. France is, I think, a very good example of what a country becomes when it says “to hell with the talented, the industrious, the dynamic, and the young, let’s design our institutions to work for the betterment of the giftless, the shiftless, the static, and the old.”)

  • Kevin

    Bas wrote: “I get to decide what happens to my body.”

    Abortion is actually a good practical analogy to Dave’s situation and it highlights some essential moral issues that your abstract scenario elides.

    So, we have the same Dave and he has just crossed the point of viability and his mother now wishes to expel him. Moral factors include:

    (1) The mother and father are directly responsible for his existence. Like 18yo Dave, baby Dave doesn’t just spring into existence, violating rights.

    (2) Nevertheless, Dave is now violating his mother’s property rights.

    (3) Nevertheless, killing Dave is now an unjust punishment for violating his mother’s property rights.

  • There is a fair argument to be made that the practice of inheritance can by unjust to people born into poverty. That’s about the only “emergent” injustice that I think you can really argue is actually unjust and not covered already by some form of conventional justice. Almost everyone recognizes that there is something basically unfair about the fact that one child born to a rich family inevitably has a vastly better chance of material well being than a poor child, starting from better childhood nutrition and early childhood education, and continuing right up through adulthood via the effects of social connections to other wealthy families.

    If everyone really started off with equal levels of wealth then we would have a hard time arguing that unequal outcomes were unjust if there were no rights violations. But people aren’t born with an equal distribution of advantages and disadvantages.

    I would be content with an arguemnt that said that we ought to have social institutions that would minimize the effect of initial conditions on later well-being. But I’d also suggest that an even more dynamic capitalist marketplace would do that better than any kind of wealth redistribution or any type of coercion. If we stopped bailing out businesses that are “too big to fail”, if we could stop government from propping up aging industries and protecting established interests, then we might get a market with sufficient “churn” that people on top don’t stay on top for long, and that would make how much money you start with less relevant than your ability to innovate and adapt to a changing market.

    • TracyW

      Actually, once you control for genes, the range of incomes that you see in rich countries don’t make much of a difference to children’s adult incomes. See for example http://www.marginalrevolution.com/marginalrevolution/2004/11/nature_nurture_html
      (These studies don’t look at really bad parenting, parents who bash their kids about the head, or starve them, or lock them in the basement for years are pretty obviously going to damage their kids’ adult lives, but then that sort of bad parenting is not confined to the poor).

      • Theresa Klein

        Even if that’s accurate those are statistical averages. There are plenty of individual smart children (outliers) who are unjustly disadvantaged by the fact that they are born in poverty. I don’t think anyone can argue with the fact that being born wealthy means you’re ultimately more likely to get into Harvard. And if you’re more likely to get into Harvard, you’re more likely to be a high earner.
        Plus the difference wouldn’t account for pre-natal care. Adopted children are more likely to be from mothers with alcohol or drug abuse problems, and who are less likely to be getting appropriate pre-natal nutrition. That would have a significant effect on the child’s IQ, through no fault of his/her own.

        • Michael Philip

          being more wealthy than others isn’t an injustice and doesn’t necessarily mean you will end up in Harvard or end up successful in your life either. I don’t think its inherently fair or unfair

        • TracyW

          There are plenty of individual smart children (outliers) who are unjustly disadvantaged by the fact that they are born in poverty

          Perhaps, but for the statistical average to be the same regardless of income, then those “plenty of individual smart children … unjustly disadvantaged by the fact that they are born in poverty” have to be offset somewhere.

          So, if you are right and there are these outliers, then there also are a bunch of individual children (of any intelligence) unjustly advantaged by being born in poverty. Perhaps there’s plenty of individual people (outliers) who do better in life because they had to fight for things rather than be handed them on a plate. Noticeably many people who changed the world came from relatively modest backgrounds, eg Napolean, Margaret Thatcher, Attaturk.

          So if being brought up by poor parents disadvantages some individual kids and advantages some other individual kids, and the disadvantages and advantages cancel out, then how is this unjust or unfair overall?

          I don’t think anyone can argue with the fact that being born wealthy means you’re ultimately more likely to get into Harvard. And if you’re more likely to get into Harvard, you’re more likely to be a high earner.

          But the adoption studies imply that if the only reason you got into Harvard is because your rich parents bought you in, it’s quite plausible that you’re going to be one of those exceptions who went to Harvard but didn’t earn a high income in the end. Or at least, not a high income based on your own efforts as opposed to being a trust-fund baby.

          Plus the difference wouldn’t account for pre-natal care.

          That would explain at least some of why adopted kids would on average had a lower income than biological kids. But it doesn’t explain why there was no relationship between adoptive parents’ incomes and adopted kids’ incomes. (Note, in the study in question, if adopted parents were accepted into the programme then they were randomly assigned to kids).

          • TracyW

            Note, if Theresa’s speculation is right, and there are bunches of outliers, some of whom are disadvantaged and some of whom are advantaged by being born to poor/rich parents, and if we could identify which of those outliers are which, then there would be a fairness-based case for intervening. But without any way of knowing which kids are unjustly advantaged and which are unjustly disadvantaged, the case is rather weaker.



    Your possibility proof of social injustice assumes away the existence of our charitable impulse and ignores the nature of markets. Dave is apparently screwed because he owns no external property, but why is the necessary property not available for purchase or rent? I am like Dave to a large extent. Like him, I don’t own a salt mine or an orange grove, but I can purchase all the salt and OJ I need at pretty reasonable prices.

    But I think there is a deeper problem. You say: “But a just society cannot contain injustices.” But if you were to build similar unfavorable empirical assumptions into any theory of justice, you will be forced to conclude that they all produce unjust societies. For example, any theory that incudes some central redistributive mechanism might be subject to abuse and inefficiency, such that everyone has a guaranteed-by-law right to property that doesn’t actually exist. So despite their guaranteed rights, people are actually starving in the street. It appears to me that by your standard there is no theory of justice that is superior to one based solely on rights.

    • Basvandervossen

      You seem to misunderstand my argument. The point is not that if people abused the system, Dave would be subject to injustice. (That, I agree, would be a trivial point – something true of any moral outlook.) Instead, the point is that no one in Dave’s world acts in a way that wrongs Dave, yet Dave ends up being wronged nonetheless. All property owners have the right, qua right-holders, to tell Dave that he is not welcome on their land. The aggregate of these innocent decisions is unjust. Hence, social justice.


        Right, but under any alternative theory of justice Dave might also be harmed without anyone acting unjustly, hence my comment that a right-based system is no worse than any other. Under an egalitarian system nobody acts wrongly in not working hard enough to produce goods, and thus people starve, etc.

  • Michael Philip

    “This is the condition that the least well off in society live on terms that are morally equivalent to the terms on which the better off live”

    is this the essence of social justice?

    • Basvandervossen

      I’d say so, yes.

  • TracyW

    Can any society be a just society, under your definition?

    • Basvandervossen


      • TracyW

        I find myself doubtful, I think it would be quite possible to always come up with an example where given a set of rights there’s some Dave subject to injustice.
        Most obviously, say the world is exhaustively owned by nations, and Dave happens to be born a stateless person.

  • Progressives infiltrated the Femocratic Party, the Republican Party, the Churches, the governmental institutions, and now are infiltrating The Libertarian Party. Why am I not surprised? These are NOT Libertarians!

  • Jeff S Turner

    Sounds like Dave needs to get a job, save some money, and buy some property……

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