David Schmidtz – Bleeding Heart Libertarians http://bleedingheartlibertarians.com Free Markets and Social Justice Wed, 15 Nov 2017 17:16:21 +0000 en-US hourly 1 https://wordpress.org/?v=4.8.3 http://bleedingheartlibertarians.com/wp-content/uploads/2016/09/cropped-site-icon-BHL-32x32.png David Schmidtz – Bleeding Heart Libertarians http://bleedingheartlibertarians.com 32 32 22756168 Land From The Ground Up http://bleedingheartlibertarians.com/2012/04/land-from-the-ground-up/ http://bleedingheartlibertarians.com/2012/04/land-from-the-ground-up/#comments Fri, 27 Apr 2012 12:00:54 +0000 http://bleedingheartlibertarians.com/?p=2549 Our days are a vast, intricate, evolving dance of mutual understandings.[1. I’m cobbling together threads of articles I’ve written on property. Please visit http://www.davidschmidtz.com/ for more.  I have never written...

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Our days are a vast, intricate, evolving dance of mutual understandings.[1. I’m cobbling together threads of articles I’ve written on property. Please visit http://www.davidschmidtz.com/ for more.  I have never written on libertarianism & land or, for that matter, on any “ism.”  I recognize that much of my work places me within a libertarian tradition, or at least, many others have recognized that, and I have no reason to disagree. But my aim is to see things in the most accurate and illuminating way.  Whether that is also the most libertarian way is not my concern.] We stop at a traffic light, offer a plastic card as payment for a meal, leave our weapons at home, or enter a voting booth. We live and work in close proximity, at high speed, with few collisions: on our roads and in our neighborhoods, places of worship, and places of business. Somehow, having all those people around is more liberating than stifling. The secret is that we know roughly what to expect from each other. Knowing what to expect enables us to adapt to each other.

Not being obliged to conform to expectations—being free to test the previously untested— is likewise a great benefit. The two benefits seem mutually exclusive, yet property rights, combined with freedom of contract, enable us to reap both at once. We can rely on being able to go to market and find someone selling cauliflower at an affordable price. We can also rely on being able to go to market and find someone rendering obsolete what a few years ago had been cutting-edge technology. We make progress by testing what has not previously been tested. We experiment.

One problem with experiments is: many of them don’t work.[2. What does it mean for an experiment to fail? Consider the reputed fact that eighty percent of restaurants in the USA close their doors within two years of opening. Some go bankrupt, but eighty percent of them were not losing money at the time they closed. Mainly, owners were learning that they did not want to work that hard, they wanted to be in a different location, or operate a different kind of restaurant. And so on.] Or, the ideas being tested turn out to be bad ideas. Thus a successful society encourages people not only to experiment, but also to shut down experiments whose inspiration proves unsound.

What kind of framework encourages experimentation without at the same time perpetuating bad ideas? Here is one hypothesis: in societies that sustain progress over long periods, people are free to experiment at their own expense and free from having to pay for other people’s bad ideas. This is the true test of a system of property.

It is natural to assume instead that the true test of a system of property is a question of whether the system is just. That is, philosophers should theorize about justice first, and only then begin to theorize about what can legitimately become a person’s property.  I have become skeptical about this. I now see justice as something that can and does evolve in a given society. Philosophizing from the armchair cannot tell us everything, and sometimes tells us little, about the historically contingent requirements of justice in a particular time and place. For example, imagine an airplane crossing over your land at high altitude, without permission. Has an injustice been done? (This is the only time I will theorize from the top down.) To answer, we need to know what expectations have been legitimated in that particular time and place, and we need to know something about the function of property institutions.

I. The Right To Exclude

Working within a Lockean tradition, William Blackstone (1765, 2) characterized property as the ‘sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’ In practice, though, property rights in the Anglo-American tradition have always been hedged with restrictions.  The dominion to which Blackstone refers is limited by easements, covenants, nuisance laws, zoning laws, regulatory statutes, and more generally by the public interest.

Wesley Hohfeld (1913) distinguished between rights and liberties.  I am at liberty to use P just in case my using P is not prohibited.  I have a right to P just in case my using P is not prohibited, plus I have the additional liberty of being able to prohibit others from using P. That is to say, the difference between a mere liberty and a full-blooded property right is that with the latter, there is an owner who holds a right to exclude other would-be users.

Today, the term ‘property rights’ generally is understood to refer to a bundle of rights that could include rights to sell, lend, bequeath, use as collateral, or even destroy. (John Lewis generally is regarded as the first person to use the ‘bundle of sticks’ metaphor, in 1888.) The fact remains, though, that at the heart of any property right is a right to say no: a right to exclude non-owners.  In other words, a right to exclude is not just one stick in a bundle.  Rather, property is a tree. Other sticks are branches; the right to exclude is the trunk.

This is not merely a stipulation, because unless an owner has a right to say no, the other sticks are reduced to mere liberties rather than genuine rights. Thus, I could be the owner of a bicycle in some meaningful sense even if for some reason I have no right to lend it to my friend.  By contrast, if I have no right to forbid you to lend it to your friend, then I am not the bicycle’s owner in any normal sense. The tree would be missing its trunk, not just one of its branches.

This does not settle what, if anything, can justify our claiming a right to exclude, but it does clarify the topic. When we ask asking about owning a bicycle as distinct from merely being at liberty to use it, we are asking first and foremost about a right to exclude.


II. The Point of Property

When are we justified in claiming a right to exclude?  There are legal questions, of course, but there also are moral questions about what the law ought to be. Claims about natural rights and natural law concern what legal rights ought to be, not what legal rights happen to be.

Dutch thinker Hugo Grotius (1625) secularized the idea of natural law.  In his hands, natural law theory became a naturalistic inquiry into the question of what social arrangements were most conducive to the betterment of humankind, given fundamental facts about human nature. Grotius argued that there would be laws of nature, dictated by requirements of human nature, even if (perish the thought) there were no deity. Human societies almost invariably create property as a legal category, so property rights are indeed artifacts in that sense, yet the very fact that humans create (and generally respect) property is part of our natures. Moreover, as Carol Rose puts it, ‘property is designed to do something, and what it is supposed to do is to tap individual energies in order to make us all more prosperous’ (Rose, 1994, 2). People create property rights for a purpose, and in a given time and place there always will be a fact of the matter about whether they work.

John Locke (1690), following Grotius, argued that God gave the world to humankind in common for the betterment of humankind, and therefore intended that people have the right to do what they need to do to put the earth to work. Individual persons own their own selves. To be sure, persons are God’s property, but as against other humans, no one but the individual alone holds the right to say yes or no regarding how his or her body is to be put to work. The premise of self-ownership is controversial, but no alternative is less controversial.  (It may be controversial to say a person has a right to say no to a proposal to use her body in a certain way, but it is more controversial to say she doesn’t.)

This right to choose how to put our bodies to work would be useless in that original state, and God would be leaving us to starve, unless we were at liberty to make a living by laboring upon otherwise unowned objects in the world. We normally are not at liberty to seize what already belongs to someone else—seizing what belongs to someone else normally does not contribute to the betterment of humankind—but when a resource is unowned, we can come to own it by mixing our labor with it in such a way as to make it more useful. Thus, we acquire a crop by virtue of being the ones who planted and harvested it, and we acquire the land underneath the crop by virtue of being the ones who made that land ten, a hundred, or a thousand times more productive than it had been in its unappropriated wild condition.

Locke was not envisioning a world where little or no wild land remained for latecomers, but implicitly he argued that latecomers could afford to respect the claims of those who arrived first. Indeed, what Locke would have seen today is how much better it is to arrive late, after all the appropriating is done. We latecomers benefit from generations of people already having done the hard work of making the land and the overall economy hundreds of times more productive than it was during the age of first appropriation, more than doubling life expectancy in the process. (Schmidtz, 2008.)

John Locke thus extended the idea of self-ownership to include the external resources that people could make part of themselves, in effect, by mixing their labor with them. The extension is controversial, but the subtle essence of it is not. The subtle idea is that there is a question about who has the least obstructed claim to a resource.  So, if we look at a piece of land that Bob alone worked on and improved (cleared, planted, etc.), then here is a fact that matters to anyone who cares about persons: only Bob can reap the fruits of the land that Bob improved without having to seize the fruits of another person’s labor.

The point is not that Bob has some metaphysically extraordinary connection to that piece of land.  The idea is that Bob has a bit of a connection, and no one else can establish a comparable connection without at the same time disregarding Bob’s prior claim. The first labor-mixing thus raises the bar on what it takes to justify subsequent acts of taking possession. (Inevitably, there will be a subsequent owner, but legitimizing transfer and subsequent ownership usually involves getting consent from the previous owner. The sort of labor-mixing that would help to justify first appropriation would be beside the point.)


Traffic Management

To Carol Rose (1994), a fence is a statement—announcing to the world that you will defend what is inside, and asking people to curb themselves so you won’t need to, thereby saving everyone a lot of trouble.

The whole point of a fence is to get in the way, which sounds hard to justify. But here is another way to conceive of property: property rights are like traffic lights.  Traffic lights move traffic not so much by turning green as by turning red. Without traffic lights, we all in effect have a green light, and the result is gridlock. By contrast, a system where we in turn face red and green lights is a system that keeps us moving. It forces us to stop from time to time, but we all gain in terms of our ability to get where we want to go, because we develop mutual expectations that enable us to get where we want to go, uneventfully. Red lights can frustrate, but the game they create for us is positive-sum. We all get where we are going more quickly, more safely, and more predictably, in virtue of knowing what to expect from each other. (As Locke might have argued, even ‘pedestrians’ are better off in an effective system of commercial traffic, because the trucking and bartering that constitutes commercial traffic is what enables twenty-year-old have-nots eventually to become forty-year-old haves.)

We don’t want lots of rights for the same reason that we wouldn’t want to face red lights every fifty feet.  Getting our traffic management system right is a matter of getting the most compact set of lights that does the job of enabling motorists to know what to expect from each other, and thereby get from point A to point B with minimal delay.

Traffic lights hardly do anything. They sit there, blinking (as Jason Brennan puts it in Schmidtz and Brennan, 2010). Yet, without them, we are not as good at knowing what to expect, and consequently not as good at getting where we need to go while staying out of each other’s way. The same could be said of property conventions.


III. How to Respect the Right to Exclude

Calabresi and Melamed (1972) distinguish three ways respecting property. In normal cases, property is protected by a property rule, meaning no one may use it without the owner’s permission.  In other circumstances, property is protected by a liability rule, meaning no one may use it without compensating the owner. In a third case, property is protected by an inalienability rule, meaning no one may use the property even with the owner’s permission.

The fundamental rationale for liability rules is that sometimes it costs too much, or is impossible, to get consent, and sometimes the contemplated use is compellingly important. Further, every time we pull out of a driveway, there is some risk that our plans will go awry and we will end up accidentally damaging someone’s property.  Where a property rule would require us to get advance permission from every property owner against whom we run the risk of accidental trespass, a liability rule requires instead that we compensate owners after the fact if we should accidentally damage their property.

The analogous rationale for an inalienability rule is that there are forms of property so fundamental that we would cease fully to be persons if we were to, for example, sell them.  We may, say, regard my kidney or my vote as my property, and yet deny that this gives me any right to sell such things.  In this respect, we would then be treating my right as inalienable.

The takings clause of the fifth amendment of the U.S. Constitution specifies that private property may not be taken for public use unless just compensation is paid.  The clause does not explicitly affirm the public’s right to seize private property for public use, although that is the implication. We can see the takings clause, then, as affirming that even when a compelling public interest precludes treating a private property right as protected by a property rule, the public must still respect the right to the extent of treating it as protected by a liability rule.

As a rule, the protection that liability rules afford is not good enough. Here is the problem. Suppose someone steals your car, then brings it back undamaged with the gas tank full. Lack of damages notwithstanding, the fact remains that your rights were violated in a serious way.  For property rights to do what they are supposed to do, the right to exclude needs to have ‘teeth’, which is to say it needs to be protected by property rules, not liability rules, and the penalty for intentional trespass must be real, not nominal. Thus, in 1997, Judge Bablitch of the Supreme Court of Wisconsin, in the case of Jacque vs. Steenberg Homes Inc., reaffirmed the centrality of property rule protection to a properly functioning system of property. In that case, Steenberg intentionally crossed Jacque’s property to deliver a motor home to Jacque’s neighbor, despite Jacque having denied Steenberg’s request for permission.  A lower court had awarded Jacque one dollar in compensatory damages (because there had not been any significant damage) and denied any punitive damages on the ground that merely nominal damages could not sustain substantial punitive damages. Judge Bablitch ruled that this would have been the correct ruling in a case of accidental trespass, but in a case of intentional trespass, punitive damages themselves must be substantial enough to deter.


Common Law

Philosophy is part of what drives the evolution of Anglo-American conceptions of property, but the history of property is not only a history of ideas.  Philosopher David Hume (in his History of England) wrote that so long as the property system was as precarious as it was in the Middle Ages, there could be little industry.  To Hume, the so-called Dark Ages were as dark as they were because people were not free. In particular, they were not free to choose how to make a living.  Moreover, they lacked secure title to the products of their labor.

What changed? Hume treats as of singular importance the rediscovery of Justinian’s Pandects in Amalfi, Italy, in 1130 (Hume, 1983, Book II, 520).  The Pandects were a digest of state of the art Roman civil law, commissioned by emperor Justinian, and produced by the day’s leading legal scholars (circa 530). Within ten years, lectures on this newly discovered civil law were being given at Oxford. As law and legal thinking evolved, there emerged a class of independent jurists whose job was to apply known and settled laws. This is common law, that is, evolving judge-made law. English King Henry II in the late 1100s extended this evolving body of judicial precedent, making its scope national rather than local. Much of the history of property law’s evolution in the Anglo-American world is thus a history of judge-made legal precedent. Jacque vs. Steenberg Homes is an example.

The remainder of this essay discusses several other legal cases illustrating the sorts of principles that drive the evolution of the common law of property.


IV. Externalities

Any given transaction has costs and benefits.  I sell you a widget for $1.50. The benefit of the transaction to me is $1.50, minus what it cost me to bring that widget to market. Presumably we’re both better off, because we traded by consent. I manufactured the widget for, let’s say, 79 cents, so I’m better off. You use your new widget to manufacture a gizmo that you can sell for a profit of  $3.14, so you too are better off.

What can go wrong? Suppose you use your new widget at 4AM in a way that makes an ear-splitting noise, and your neighbors lose sleep. Thus, a transaction can have costs or benefits to parties other than the buyer and seller.  An external cost is a cost imposed on bystanders. An external benefit is a benefit that falls on bystanders. When you make that horrible noise with the widget I sold you, neighbors are worse off. You and I are better off, but bystanders are worse off, which makes it unclear whether society as a whole is gaining or losing.

But now consider a different case.  Suppose you don’t make any noise with the widget, but you do make lots of gizmos, and offer them for sale at $1.99 rather than what had been their going rate of $3.14. As a result, people who had been selling gizmos for $3.14 are worse off. Both cases are cases in which innocent bystanders are made worse off, but the second case is legitimate somehow. Being awoken in the middle of the night by an ear-splitting widget noise is arguably a form of trespass, but in the second case, my customers are not my property, and your ‘stealing’ a customer from me is not stealing so much as simply outperforming me and thus taking business from me that never was mine by right.  From a social perspective, when a transaction affects the supply and demand for gizmos, and the price of gizmos changes in response, this is a good thing for the neighborhood, not a bad thing. Falling gizmo prices reflect the fact that supply increased relative to demand, and therefore from the community’s perspective there is less reason for any particular manufacturer to be making gizmos. So, falling price induces the appropriate response. Externalities that affect people’s welfare only by affecting prices are called pecuniary externalities, and from a social perspective they are beneficial because changing prices induce buyers and sellers to adjust their behavior in ways that benefit customers.

In 1707, the case of Keeble v. Hickeringill came before the Queen’s Bench of England.  Keeble was a farmer who had set up a system of decoys to lure waterfowl into traps. He would then sell the captured birds.  His neighbor, Hickeringill, began to fire guns into the air so as to frighten the birds away and interfere with Keeble’s business. Keeble filed suit. Judge Holt ruled in favor of Keeble. Holt reasoned that Keeble was minding his own legitimate business and Hickeringill had no right to interfere.  Holt refers to another case where a defendant interfered with a neighbor’s school by starting a better school. The defendant won in that case because the students were not the plaintiff’s property.  The plaintiff had no right to be protected against the defendant ‘stealing’ the students by offering the students a better alternative. Holt next considered a hypothetical where a defendant interferes with a neighbor’s school by firing guns into the air and frightening the students away. That would be an intentional trespass, because the defendant would be aiming to sabotage the plaintiff’s product, not to enhance the defendant’s product. Judge Holt drew a distinction between genuine and merely pecuniary externalities (centuries before the technical terms were coined), refining the property system so as to limit genuine externalities while leaving intact the liberty to compete in the marketplace, thereby making it easier for neighbors to live, and make a living, together.

Sometimes externalities are not worth eliminating. When people live miles apart, we don’t bother to develop laws regulating shooting of guns into air.  As population density rises, a cost becomes worth internalizing at some point. Likewise, there is an external cost to driving, but we don’t want people to stop driving. We just want to limit the cost to reasonable levels. Eliminating external costs is not the aim.  It will always be part of the idea of being a good neighbor that it is worth living among neighbors despite minor irritations, and good neighbors take reasonable steps to tread lightly on their neighbors’ normal sensibilities. There is no perfect substitute for being considerate. No system of law will enable us to be good neighbors just by obeying the law.


V. Possession

In the case of Armory v. Delamirie (1722), a chimney sweep discovers a ring, pockets it, then takes it to an appraiser. The appraiser pockets the jewel that had been in the ring. The chimney sweep sues the appraiser for the return of the ring. The court rules that the question is not who is the true rightful owner, but whether there has been a wrongful transfer from the plaintiff to the defendant.  The court determines that there has indeed been a wrongful transfer and rules that it must be undone. This was among the first cases to establish possession as marking presumptive ownership.  The chimney sweep was not the ring’s rightful owner, but his simply possessing the ring conferred a right to maintain possession against those who would take it without consent.

A person has to feel safe in going to the market and engaging the services of others in mutually beneficial commerce.  If a jeweler has a right to take your stuff—if the fact of your possessions being your possessions is not enough to ground a (rebuttable) presumption that you are the owner—then you won’t feel comfortable taking your stuff to a jeweler. One of the main purposes of law in general and property law in particular is to make people feel safe in going to market to truck and barter. If property rights are sufficiently secure, then one need not conceal one’s valuables; on the contrary, one can flaunt their value, openly advertising what one has for sale, thereby making it easier for the whole community to do business.


VI. Positive Sum Games

In 1880, in the case of Ghen v. Rich, the court learns that Ghen fired a bomb lance into a fin-back whale. The dead whale sank, then washed up on the coast of Massachusetts, where it was found by Ellis. Ellis sold the carcass to Rich, who extracted oil from the blubber. Hearing of this, Ghen filed a claim for the value of the oil extracted. Ghen’s case rested on the custom in the whaling community of treating the person who first harpooned a whale as establishing possession and thus ownership. In 1881, Judge Nelson of the Massachusetts District Court ruled in favor of Ghen, crediting whalers for developing norms that facilitate the whaling trade. Whaling ports were concentrated, close-knit communities. Norms were propagated there: simple, transparent norms that invested property rights in whalers who were good at producing what the larger community needed whalers to produce.

Judge Nelson acknowledged that whether an act counts as establishing possession and thus presumptive ownership is a matter of convention.  In some whaling communities, the ‘iron holds the whale’, meaning that fatally harpooning a whale is enough to establish possession. In whaling communities where the most commercially valuable whales are too dangerous or too difficult to attach to one’s boat, this is all that reasonably can be asked. (This was the rule applying to the fin-back, which is why the first possessor was Ghen, not Ellis.)  In other whaling communities, though, where the prized whales are slow and docile, the mark of first possession is more stringent. In those communities, the rule is ‘fast fish, loose fish’, meaning one has not established possession until the whale is fastened to the boat. (See Ellickson 1991.)

Carol Rose identifies two overarching principles for defining rules of possession. First, establishing possession should involve doing something unambiguous, something that notifies the world of what one is claiming. Second, establishing possession by the rules should involve useful labor, something that adds to the value of what one is claiming.


VII. Transaction Costs

In Hinman vs. Pacific Air Transport (1936), a landowner sues an airline for trespass, asserting a right to stop airlines from crossing over his property. The court’s predicament: on one hand, a right to say no is the backbone of a system of property that in turn is the backbone of cooperation among self-owners. On the other hand, much of property’s point is to facilitate commercial traffic. Ruling that landowners in effect can veto the air traffic industry is the kind of red light that would gridlock traffic, not facilitate it. The Hinman verdict is explainable in terms of transaction costs (costs incurred in concluding a transaction—commissions, time and money spent on transportation to and from the market, equipment and space rentals, time waiting in line, and so on). The cost of airlines transacting with every land owner for permission to pass over the owner’s land would render air traffic out of the question. The ruling was that the right to say no does not extend to the heavens but only so high as a landowner’s actual use. Navigation easements subsequently were recognized as allowing federal governments to allocate airspace above five hundred feet for transportation purposes.

The right to say no is an institutional structure that facilitates community by facilitating commerce in the broadest sense. The right to say no safeguards a right to come to the market and contribute to the community, thereby promoting trade, and thereby promoting progress. When people have a right to say no, and to withdraw, then they can afford not to withdraw. They can afford to trust each other. That is, they can afford to live in close proximity and to produce, trade, and prosper, without fear.

By the same token, the right to say no is not a weapon of mass destruction. It is a device whose purpose is to facilitate commerce, not prevent commerce, so it must not put people in a position to gridlock the system. The right to say no is meant to be a right to decline to be involved in a transaction, not a right to forbid people in general to transact. In Hinman, the plaintiff’s interpretation of his right to say no implied a right to gridlock airlines, so the edges of the right to say no had to be clarified.

That is to say, property’s purpose as a means of production (how the law has to evolve in order to continue to serve its purpose) has to condition the contours of justice, not the other way around. Therefore, taking justice seriously has to involve treating justice as something that comes second, not first, because taking justice seriously has to involve treating justice as something a society can afford to take seriously. In the Hinman case, for example, whether justice recognized a right to say no that extends to heaven had everything to do with whether such extension was a viable way of managing the commercial traffic of a peaceful and productive community of sovereign, individual equals. (See Schmidtz, 2010).



The case for zoning begins with a problem of internalizing externalities, combined with a conjecture that a given externality problem cannot be solved because the cost of transacting is too high. Neighborhood associations create covenants forbidding industrial development. Sometimes, though, there are holdouts whose interests lie in a different direction, and who want to retain the option of selling their land to industrial concerns.  Thus, neighborhoods often seek to reserve to themselves a right—as neighborhoods—to say no to such sales. Euclid vs. Ambler Realty (1926) is the basis of all subsequent zoning in the United States. In 1922, the village of Euclid, a suburb of Cleveland, adopted a comprehensive zoning plan. In the middle of this village, though, was a large tract of land owned by Ambler Realty. Ambler sued Euclid, alleging that the zoning plan robbed Ambler of the greatest value of its land because the parcel was in the immediate vicinity of a railroad that made it better suited for industrial than residential use.

A district judge found the zoning ordinance unconstitutional. The 14th Amendment says, in part, that ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’. The U.S. Supreme Court overturned this ruling. There was a concern that zoning had been used to create neighborhoods barring minorities, immigrants, and people with criminal records. Everyone knew that one of zoning’s uses was to protect residents from renters and low-income groups by creating single-family residential zones, minimum acreage lot requirements, and so on. Still, the court saw no such concerns in play in Euclid. So, the court decided (with three dissenting votes) that their job was to rule on the merits of the case rather than on the general principle, acknowledging that zoning could be used as a tool of oppression but holding that it was not being abused in the case at hand. If and when neighborhoods abused the option of zoning, they could and would be sued, and future courts would then define and refine zoning’s legitimate limits.


VIII. Equality Before the Law

In 1911, thirty of the thirty-nine property owners in a St. Louis neighborhood signed a covenant barring the sale of their parcels to non-whites. In 1945, the owner of one such parcel sold to Shelley, an African-American family. Neighbors sued to prevent Shelley from taking possession. Dodging the moral issue, the trial court dismissed the suit on technical grounds, ruling that the covenant was valid only on condition that all the neighborhood owners sign, and not all had. The Supreme Court of Missouri reversed this decision, arguing that the people who signed the agreement had a right to do so, and their exercising such right violated no provision of the Constitution.  Shelley, by now occupying the property, counter-sued, saying the covenant did indeed violate the U.S. Constitution’s 14th amendment, which guarantees to each citizen ‘equal protection of the laws’. The case went to the U.S. Supreme Court, which ruled that private racist covenants are constitutional, but public enforcement of such covenants is not. Private covenants do not involve or implicate the state, but public enforcement of private covenants does.

Shelley terminated half a century of effort to segregate via covenant. The idea of covenants is neutral in the abstract, but in practice overwhelmingly was used to exclude African Americans. Shelley signaled that courts would scrutinize actual patterns of discrimination, not merely formalities. The lawyer arguing Shelley’s case was Thurgood Marshall, an African American and future justice of the U.S. Supreme Court, who would go on to argue, in Brown v. Board of Education (1954) that ‘separate but equal’ is unconstitutional because there was precious little equality in segregation’s results as put into practice since Plessy v. Ferguson (1896).

What we are left with today is a right to enter covenants, exchange easements, and so on, so long as those changes aim at making the community a better place. One can enter into private agreements, but one cannot bind future generations by creating racist covenants that run with the land. Being a racist is one thing; binding future owners to participate in a racist covenant is another. Once a covenant is designed to run with land, the covenant isn’t just a contract issue anymore.  It has become a property issue. In property law, there are limiting doctrines that prevent idiosyncratic wishes of previous owners from running with the land.  Idiosyncratic contractors can agree to whatever idiosyncratic deal they want, but their agreement does not bind future buyers of their property. Restrictions on property that run with land have to be justified, when challenged, by argument that such restrictions are reasonably expected to be of value to subsequent owners. Which raises a question: could racially restrictive covenants reasonably be expected to be of value to subsequent white owners? Perhaps, but here is the crux. For a court to acknowledge that whites in general have an interest in excluding blacks that the State should protect would amount to treating enforced racism as legitimate State business. That is what the 14th amendment’s ‘equal protection’ clause forbids.


IX. Justice the Right Way

In Hinman, the nature and value of commercial traffic settled the question of where to locate the boundaries of rights and justice, not the other way around. Presiding Judge Haney was trying to take rights seriously. He succeeded. His verdict left us with a system of rights that we could afford to take seriously. Common law judges need to formulate simple rules, in the spirit of equality before the law, that enable litigants to get on with their lives, knowing how to avoid or minimize future conflict. Judge Haney, in the Hinman case, took a system that had come to be inadequately specified relative to newly emerging forms of commercial traffic, and in a predictable, targeted way, made the system a better solution to the particular problem confronting his court. That case, more than anything ever to come out of a philosophical treatise, captures the essence of what needs to be done to justify an infrastructure of property rights, and to modify it as needed so that it stays justified.

If principles of justice are to be compatible with people getting what they need, then they need to be compatible with people resolving conflicts as they occur. When courts are working well, they are fast, fair, flexible, and final. Their verdicts serve as food for thought for future courts and potential future litigants. They also leave the litigants in the case at hand able to get on with their lives feeling like they’ve been respected as the separate persons they are, not needing to be heavily policed. If an alleged principle of justice rules out what people need to do to coordinate expectations, internalize externalities, and secure their possessions well enough to make it safe for them to look for ways to make their customers better off, then people need to keep looking for principles of justice that they can afford to respect. By analogy, if an alleged principle of justice ruled out doing what people need to do to meet their dietary needs, then people would have to keep looking for principles they can live with.


Politicians As Plumbers

Stephen Holmes and Cass Sunstein suppose that “people cannot lead decent lives without certain minimal levels of food, shelter, and health care.  But calling the crying need for public assistance ‘basic’ may not get us very far. A just society would ensure that its citizens have food and shelter; it would try to guarantee adequate medical care; it would strive to offer good education, good jobs, and a clean environment.”[3. Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes, New York: W. W. Norton and Company (1999) 120. Emphasis added.]

Here are two responses. First, suppose we grant that the proper way to evaluate societies is by asking whether they empower and enable people to lead decent lives together.  How then would we evaluate plumbers?  We might ask the same sort of question, namely, do plumbers make us better off?  But we would not use that question as a template for a plumber’s job description.  A job description would be narrower and would have something to do with plumbing. So, suppose we call a plumber to fix a faucet, but decline to turn over to the plumber the jobs of providing us with food, shelter, and health care. Would we thereby be failing to take “crying needs for public assistance” seriously? No. We simply recognize that a plumber’s job description—that small facet of the overall job of making us better off that falls under the heading of plumbing—does not encompass everything. Nor should it.  Why not?  Because if plumbers had to take over the job of putting food on our tables, they would end up rationing out food of indifferent quality.  So, if we, the public, decline to turn over a given job to a plumber, or a politician, it may be because we fail to see how important the job is.  More likely, though, is that we decline precisely because we do see how important the job is.



My second response is that, as Holmes and Sunstein say, people need food, shelter, and occasionally medicine. However, they leap to the false conclusion that if food is required, then guaranteed government provision of food is similarly required.[4. Echoing Holmes and Sunstein, Liam Murphy and Thomas Nagel say “Few would deny that certain positive public goods, such as universal literacy and a protected environment, that cannot be guaranteed by private action, require government intervention” (The Myth of Ownership, New York: Oxford, 2002, 6, emphasis added). What a curiously old-fashioned approach this seems to be, as if there were no gap between finding a theoretical imperfection in private provision and clinching the case for public provision.] Justice does not require people to wait in line for government-provided food. Neither does justice require government to intervene in the process by which people figure out ever-better ways to feed themselves and their communities. Nor does justice involve guaranteeing that citizens will have to pay the price of meeting other people’s needs but not their own.[5. If there were one thing people need from a government, it would be to give some teeth to the right to say no. And the right to say no won’t have teeth except under a government that treats possessions as presumptively legitimate—defeasible of course but not in fact defeated in normal cases.]

People who clamor for guarantees should stop and ask whether the guarantees they envision, in the hands of ordinary government administrators, will actually make people better off. Are such guarantees guaranteed to make people better off?  Why don’t we need that to be guaranteed as a prerequisite of having any right to start issuing guarantees?

Better yet, why don’t we need at least to be guaranteed that issuing such guarantees won’t make poor people worse off? If guarantees are so important, we should clamor for that guarantee first, and clamor for additional guarantees only after getting that one.

Instead of looking at official guarantees, we must look at patterns of actual results, and once we see the pattern, we should take the hint. For a start, we can measure how much a society has achieved, along one uncontroversially important dimension, by looking at life expectancies. In 1900, life expectancy in the U.S. was 47 years for white males, and 33 years for black males.  By the year 2000, life expectancy was 75 years for white males and 68 years for black males.[6. See http://www.elderweb.com/home/node/2838, citing U.S. Census Bureau’s Current Population Reports.] This is an incredible achievement. Whether the U.S. government ever guaranteed that people would live that long is beside the point.  What it did guarantee, more or less, is that society would remain a scene of experimentation. The bravest and best would take risks. Often they would fail. Their assets would be liquidated. But they would survive, dust themselves off, lick their wounds, then try again.  Many eventually would succeed, carrying their country and their planet to the next level of aspiration and progress.

Prosperity’s foundation is productivity, and productive societies are always the ones that do not overdo the guarantees.


X. We Don’t Need a Common Destination

I have spoken about evaluating property institutions, and about sorting out alleged principles of justice, by asking whether they help us to live well together. Needless to say, a philosopher would want to know exactly what I mean when I speak of living well together. I resist the temptation to reflect at length on the issue here.[7. But see David Schmidtz, Rational Choice and Moral Agency (Princeton: Princeton Press, 1995), Chapter 7.] Let me simply observe that if we were asked whether plumbers help us live well together, we might say, “of course, so far as plumbing goes.”  The philosophical indeterminacy of what is to count as living well would not trouble us in that circumstance. Why not?  Partly because such a question sounds ordinary, signaling a context in which philosophical rigor is neither expected nor useful. We know what the words mean well enough to have no trouble with them in ordinary conversation.  Another part of the explanation is that what plumbers contribute to society is concrete. We know what they contribute, and we know that the contributions of honest plumbers are straightforwardly positive, even if limited.  If we ask whether traffic lights help us live well, that too has a straightforward answer. Lights that are well-placed and function reliably do indeed help motorists live well. We could say much the same of property rights.

What it means to prosper—to reach one’s destination—is underdetermined by theory, but communities work out the details. For one thing, people will not prosper together unless they come up with a system that does not require consensus on the details. To prosper, people need to agree on who has jurisdiction, that is, who gets to make the call.  The point of property rights is to settle who holds the right to make the call. That is part of the explanation of why liberal societies are places of rising prosperity (and also of why measures of prosperity tend to be controversial).

To theorize productively about justice, we must consider what it takes for people to prosper in communities. However, a judge need not know every facet of that genuine ideal to say something about justice in a given case. All a judge needs to know is that commercial traffic management is a prerequisite of achieving that ideal on any non-question-begging interpretation, and that some kinds of property rights are a prerequisite of effective commercial traffic management. A judge has to see that litigants come before the court with their own visions of the good life. Usually the visions are compatible, but the litigants have incompatible views about their right to pursue their vision in a given way. A judge’s job is to resolve the conflict.  A judge never needs to know the details of their visions of the good life. In hard cases, though, a judge does need to keep in mind that the job of the court is to clarify the rights of way so that these litigants will be able to get on with pursuing their own visions in peace, assisted by a verdict that clarifies what people like them reasonably can expect from one another. In metaphorical terms, we need to know that our system of traffic management is helping people get safely where they want to go. We do not need to know or to evaluate the details of where they want to go, and we are vastly better off living in societies where bureaucrats do not presume to micro-manage our choice of destination but instead erect a compact set of traffic lights and then leave well enough alone.

To summarize, in more concrete terms, when a system of property is working, it enables people to live good lives together by helping people to solve a cluster of key problems:

  1. It puts people in a position to produce.
  2. It puts producers in a position to trade.
  3. It fosters creative destruction by encouraging people to experiment, and to shut down experiments that are not working, and to acquire and transmit information about which experiments work and which do not.
  4. It limits externalities.  That is, it results in people having to pay the costs of their own experiments, and also in people being able to enjoy the benefits of their own experiments, thereby helping a society make progress. In most times and places, this will mean a mixed regime in which important bits of property are held by the public but in which the primary means of production are in private hands. That kind of mixed regime has been tested repeatedly in practice. Evidently, and for well-known reasons, it just works better.[8. Carol Rose, “Possession as the Origin of Property,” University of Chicago Law Review 52 (1985): 73-88. Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review 53 (1986): 711-87. Elinor Ostrom, Governing the Commons: the Evolution of Institutions for Collective Action (Cambridge: Cambridge Press, 1990).]
  5. It limits transaction cost.  A system must enable producers to take steps to minimize the cost of getting their product to their customers. The roads must be good. Tariffs must not prevent them from dealing with foreign suppliers, and so on.
  6. It enables producers to grow their business, setting up production processes that exploit opportunities for productivity-increasing division of labor and economies of scale.

A system of good property law and good government does these six things, then stops.  Property rights don’t do everything for people, any more than do traffic lights, or plumbers, but this much they can do: they can structure people’s opportunities and incentives such that the most profitable thing people can do is to be as useful as possible to the people around them. The key to explosive economic growth is simple: Secure our possessions well enough to make it safe for us to be a part of the community. Put us in a situation where the key to personal prosperity is to devise ever more effective ways of making the people around us better off. That isn’t everything, but it is a lot.

University of Arizona




• Blackstone, William. (1979) Commentaries on the Laws of England [1765] (Chicago: University of Chicago Press).

• Calabresi, Guido and Melamed, A. Douglas. (1972), ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’, Harvard Law Review 85: 1089-1128.

• Demsetz, Harold. (1967), ‘Toward a Theory of Property Rights’, American Economic Review (Papers & Proceedings) 57: 347-59.

• Ellickson, Robert C. (1991), Order Without Law : How Neighbors Settle Disputes (Cambridge : Harvard University Press).

• Ellickson. Robert C. (1993), ‘Property in Land’, Yale Law Journal 102: 1315-400.

• Grotius, Hugo. 2005. Rights of War and Peace [1625], (London: Elibron).

• Hardin, Garrett. (1968), ‘The Tragedy of the Commons’, Science 162: 1243-48 .

• Hohfeld, W. (1964), Fundamental Legal Conceptions [1913 and 1917] (New Haven: Yale University Press).

• Hume, David. (1983) History of England [1778] Indianapolis: Liberty Fund Press.

• Lewis, John. (1888), Law of Eminent Domain (Chicago: Callaghan and Co.).

• Locke, John. (1960), Second Treatise of Government [1690] P. Laslett (ed.), (Cambridge: Cambridge University Press).

• Rose, Carol. (1985), ‘Possession as the Origin of Property’, University of Chicago Law Review 52: 73-88.

• Rose, Carol. (1986), ‘The Comedy of the Commons: Custom, Commerce, and Inherently Public Property’, University of Chicago Law Review 53: 711-87.

• Rose, Carol. (1994), Property and Persuasion (Boulder: Westview).

• Schmidtz, David. (2008), Person, Polis, Planet: Essays In Applied Philosophy (New York: Oxford University Press).

• Schmidtz, David. (2010), “Property and Justice,” Social Philosophy and Policy 27: 79-100.

• Schmidtz, David, and Brennan, Jason. (2010), A Brief History of Liberty (Oxford: Blackwell).

• Schmidtz, David. (2011), “Property,” Oxford Handbook: History of Political Theory, ed. G. Klosko (New York: Oxford University Press): 599-610.

The post Land From The Ground Up appeared first on Bleeding Heart Libertarians.

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Comments on Hillel Steiner’s Essay on Rights http://bleedingheartlibertarians.com/2012/04/comments-on-hillel-steiners-essay-on-rights/ http://bleedingheartlibertarians.com/2012/04/comments-on-hillel-steiners-essay-on-rights/#comments Tue, 24 Apr 2012 20:34:46 +0000 http://bleedingheartlibertarians.com/?p=2659 Note: the following is a review of Hillel Steiner’s Essay on Rights that was originally published in the Canadian Journal of Philosophy, vol. 26, no. 2 (June, 1996), pp. 283-302....

The post Comments on Hillel Steiner’s Essay on Rights appeared first on Bleeding Heart Libertarians.


Note: the following is a review of Hillel Steiner’s Essay on Rights that was originally published in the Canadian Journal of Philosophy, vol. 26, no. 2 (June, 1996), pp. 283-302. The criticisms it presents appear to apply to Steiner’s current views, including those presented in his essay on this blog. I therefore post it here in its original, unedited form. Sections VI through IX are most directly relevant to the debate over libertarianism and land.


I  Introduction

What is justice? And what is it for? Hillel Steiner says that his Essay on Rights will answer  the first question, in the process showing  that the second has no answer  (1). The book ends  by saying, ‘I’ve  offered no reasons as to why we should be just. Nor do I think that any can be found’ (282). Is this brutally self-effacing conclusion warranted?  Are the pros­pects for motivating what Steiner calls justice as bleak as Steiner himself seems to think?

Yes and  no. The conception  of justice set out in the opening  pages seems eminently well-motivated. ‘We unavoidably restrict one another’s freedom. And  justice is about  how those restrictions  ought  to be ar­ranged.’  Steiner immediately  adds,  ‘What it’s not about  are the ends which might be achieved by that arrangement’ (1). Yet what Steiner calls justice is very much about the end of mediating conflicts that arise as we pursue our personal projects in a social world. More perspicuously, he says ‘Questions of justice arise precisely where the moral permissibility of one person’s  restricting another’s freedom is not determined by the comparative  merits of the ends to which they are respectively commit­ted’ (2).

If the book is about justice, it is also about rights insofar as, ‘the elementary particles of justice are rights. Rights are the items which arecreated and parcelled out by justice principles’ (2). Accordingly, rights, as the elementary  particles of justice, have to be capable of resolving disputes.  In effect, rights supply  a verdict about who has the right of way. Rights (literally and metaphorically) allow us to navigate through traffic with minimal risk and inconvenience, conceding the right of way to other motorists when required by the rules of the road, without in any way implying that other motorists’ destinations are more important than our own.

Why not settle cases on the merits of the ends at stake? One problem is that comparative  merits of different ends are sometimes  hotly con­tested. A second consideration, not mentioned  by Steiner, is that even when no one would contest the comparative merits of the ends at stake, we often don’t want to settle things that way. Instead, we want to settle things in advance so that questions of comparative merit never arise. We want to get home at a reasonable hour. Stopping at every intersection to put our ends up for public inspection would slow us down, and might be rather undignified  to boot. We are better off with pre-established rights of way.

If that is what rights are for, then what happens when rights come into conflict? The crux of Steiner’s essay is that they cannot (2). Genuine rights are compossible, which is to say they form a set, the members of which cannot yield conflicting verdicts about who has the right of way. Readers who are familiar with Steiner’s work will know that compossibility has far-reaching implications regarding the structure, content, and authority of rights. The book’s main purpose is to fully explore those implications, showing how much can be gotten from such a theoretically spare begin­ning.

II  Freedoms and Unfreedoms

The first substantial chapter is a lengthy analysis of freedom. (Freedoms, Steiner argues later, are what  rights distribute.) Steiner begins with a methodological stipulation. ‘It’s assuredly not the job of philosophers to legislate on which linguistic (much less, moral) intuitions we may hold nor, therefore, on what conception  of liberty  we may employ. They utterly lack the authority to do so. Rather, their brief is the more modest one of indicating which set of intuitions can be held consistently’ (7). Well, then, let us ask whether Steiner’s methodological  intuition can be held consistently. Evidently not, for in the very act of proclaiming that phi­losophers can do no more than indicate which set of intuitions can be held consistently, Steiner himself goes well beyond  merely indicating which intuitions can be held consistently. And not for the last time.

Steiner says ‘a person is unfree to do an act if, and only if, his doing that action is rendered  impossible by the act of another person’ (8). He offers the definition again a bit later (32), claiming at that point to have defended it. The ‘if’ part seems obvious; the ‘only if’ part does not, and the ‘if’ part is what Steiner defends. Regarding the ‘only if’ part, it would seem that if I am locked in a prison cell, I am unfree to go to the theater regardless of whether  my going has been ‘rendered  impossible by the action of another person.’ If I accidentally locked myself in, I am as unfree to go to the theater as I would have been had someone else locked me in. Of course, it is Steiner’s prerogative  to settle the issue by fiat, and I see no harm in stipulating that the term ‘unfree’ applies only to inabilities caused by other people’s interference. I just find it odd that considerable effort goes into defending  one side of the biconditional when the other side is simply stipulated.

Steiner insists that no freedom (to perform a particular fully specified act-token) can be possessed by more than one person at a given time.

Although it’s true that both Becker and McEnroe were free to compete in the 1990 Wimbledon Men’s Singles Tennis Championship, it cannot be true that they were both free to win it. Of course, it’s often difficult to predict which one of many possible worlds will become actual. But there’s no possible world in which two (or more) such attempters can both be unprevented.(41)

Is this true? Perhaps, if we lean hard enough on the word ‘attempters’, but that would  take us away from the real issue. A slightly different question  illustrates  the problem: are Becker and McEnroe both free to concede the match? The answer is that Becker and McEnroe are each free to concede the match even when it isn’t possible for both of them to concede. A world in which neither of them intends to concede (i.e., the real world)  is a world  in which each is free to concede. On Steiner’s definition of ‘unfree,’  Becker is unfree to concede only if his conceding is rendered  impossible by the act of another person. Now, Becker’s conceding was, as a matter of historical fact, not rendered impossible by the act of another person, and neither was McEnroe’s. Therefore, contra Steiner, there is a possible world (namely, the actual world) in which two people can each have the same fully specified freedom.

What, then, is the real issue? What motivates Steiner here, I think, is the idea that any fully specified freedom possessed by more than one person would  not be compossible. As I see it, there is a perfectly natural sense in which I can be free to do X (for example, take a certain seat on a certain bus at a certain time) not because no one else could possibly do X but simply because no one else will actually do X. But that sense of being free to do  X is not Steiner’s.  As Steiner conceives of freedom, compossibility is built in.

Steiner goes on to ask, ‘What counts as an increase in a person’s liberty?’ (42) One common-sense requirement  of any answer, Steiner believes, is that enlarging our repertoire of available actions must not count as an unequivocal increase in liberty, for such a view would fail to integrate unfreedoms into the rubric. In Steiner’s words,

 Residents of classical Athens could not perform the action (act-type) of going to the refrigerator to fetch a can of beer. Are we more free than they were? Possibly, but not for that reason. For as we’ve already seen, whether I’m free to do this act-type entirely depends upon whether I’m free to do at least one of its tokens. Suppose I am. Does this imply that I’m more free than the classical Athenian? No, because there are many of these tokens which I’m unfree to do. My cranky neighbor, for instance, would no more allow me to fetch a can of beer from his refrigerator than he would give me the time of day. Our  technologically enhanced repertoire  of act-types also increases our inventories of act-tokens which we’re  prevented by others from doing.(43-4)

At the same time, he says, ‘Another commonsensical requirement of any freedom-metric is that it implies that my total liberty increases whenever, ceteris paribus, I become free to do an act-token which I was previously  unfree  to do’ (44).[1. The ceteris paribus clause is meant to set aside cases in which I become free to fetch a can of beer but at the same time become unfree to fetch a can of my neighbor’s beer. We might add that there are cases where, in becoming free to do an act, I also become obligated to do it. When I suddenly acquire the option of helping to push my neighbor’s car out of a snow bank, I am less free in virtue of no longer having the option of permissibly spending my time in more pleasant ways. (Or  does my neighbor have to make me physically unable to spend my time in other ways in order to make me unfree?)] Steiner  then considers  how we might assign numbers to particular freedoms. The point is to arrive at a number that would  reflect the extent of our total freedom, once freedoms and unfreedoms are each factored in. However,

 Observe how this leads to very peculiar results. Suppose that Blue is free to do acts A and B, the significance of each of which is respectively valued as +10 and +8, and that she is unfree to do C which is valued as -9. On whatever formula these figures are combined to yield the extent of her total freedom with respect to these three actions, the implication of removing the restraint against her doing C – and thereby making her free to do it – is a reduction in that total. Blue’s acquisition of the added freedom  to do C would entail a decrease in her overall freedom! To avoid such contradictions, while still integrating valuational magnitudes into computations of personal liberty, it would  therefore be necessary to exclude the use of negative numbers from valuational assessments of actions. (47)

The contradiction is peculiar, for sure,but we hardly need to resort to the even stranger proposal, ‘simply and boldly, to delete all negatively valued actions from  the set of actions which  people  are describable as free or unfree  to do’ (47). Let C stand for the option of jumping  from Blue’s third-floor office window. Notice that the value of actually jumping is not the same as the value of having the option of jumping. The value of actually  jumping  is -9, but  the value of having  the option of jumping presumably is zero?[2. That is to say, the option  of jumping from Blue’s third-floor office window presum­ably is worthless. I am not saying this value necessarily is zero. (It could even have positive value in a case  where  threatening to  jump  would put  Blue  in a better bargaining position.) The point is only that it need not be -9.] (It should be obvious that  the two  values  are not likely to be identical. Actually  jumping  is painful; having the option of jumping  is not.) Since the calculation is about acquiring the option of jumping, and not about actually jumping,we add zero to the total rather than -9, which means that those who like to attach numbers to freedoms (or values thereof) can avoid Steiner’s peculiar result without having to deny what is  plainly true,  namely that jumping from Blue’s office window can have negative value.  Nor do we need to give up Steiner’s intuition that  my  total  liberty  increases, other  things  equal,  when  I acquire option C. The  additional liberty  may  be worthless, but  it is, nonetheless, an additional liberty.

A consequence of Steiner’s view is what he calls the Law of Conserva­tion of Liberty: ‘there can be no such thing as an absolute loss of (or gain in) individual liberty’ (52). The idea (I think) is that, if we all suddenly acquire the freedom to brew beer in our basements, bottle it, and  put it in our  refrigerators, then as fast  as I can  put  beer in my refrigerator, thereby  acquiring a freedom to fetch it from my refrigerator, my neigh­bor also acquires unfreedoms to fetch that same beer. The total gain in freedom thus  comes out to zero. Would  Steiner  say that  there can be a net change in the total number of options? Or would he say that, as people in general come to have more options than  they  once had, there is a corresponding increase in ‘unoptions’ such that the net change is always zero?[3. Steiner would say the latter (personal communication, cited by permission).] I find  the zero-sum conception of liberty uncompelling, but it is interesting insofar  as  it  directs all  of our  philosophical attention to questions about how liberty is distributed. If sum-total liberty  is con­stant, then Steiner  does not need to defend  his rights theory  against the consequentialist argument that  invading some  people’s liberty  can be justified  in  virtue  of increasing the  total  sum.  The  total  sum  cannot increase, on Steiner’s view.


III  Compossibility

The heart of the next chapter is a comparison of two accounts of the nature of rights. Benefit Theory maintains that to hold a right is to be the person who stands to benefit from its enforcement. Steiner opts for Choice Theory,which maintains that the true rights-holder is the person who has the power to waive the claim. Blue may appear to have an unwaivable right (i.e., a right that Blue is not at liberty to waive) not to be enslaved. Steiner finds it more accurate, though, to look at Blue as a third-party beneficiary (62). Blue cannot waive her right not to be en­slaved because Blue has no such right in the first place. By analogy, if your florist promised you to deliver flowers to me, then I am a third party beneficiary of a right held by you. I may appear to have an inalienable right to the flowers insofar as I could not release the florist from his duty to deliver flowers to me even if I wanted to. But that appearance is created by the fact that the right, and consequently the power of waiver, is held by someone else. Blue’s apparent right not to be enslaved, for example, is actually a right ultimately held by a state official!

As evidence that some state official has such a right, Steiner notes that it is within the power of certain state officials to pardon offenders, to accept plea-bargains, to decide not to prosecute, and so on (69). One might object that surely it is ordinary citizens who possess rights like the right not to be enslaved. Steiner’s reply is that this ‘relies on the unstated assumption that a necessary condition of being a right-holder is being the beneficiary of a duty’  (66). It doesn’t really, though. Steiner’s own unstated assumption is that Benefit Theory is the only alternative  to Choice Theory. Steiner argues (successfully) that being a beneficiary is not a necessary condition of being a right-holder, but he makes an equally vulnerable assumption himself, namely that a necessary condi­tion of being a right-holder is having (and being able to exercise) the power to waive the right. Neither condition seems necessary. What we call rights do not comprise so neat and tidy a category. Most but not all of them are waivable. For that matter, in most cases holding a right goes hand in hand with being its ostensible beneficiary.

In one of my favorite parts of the book,Steiner offers an illuminating distinction between vested and naked liberties (75). A vested liberty is surrounded by a protective perimeter formed by the duties of others, effectively prohibiting interference by others. A naked liberty, such as the liberty to use a public telephone, lacks such protection, though it’s rarely without any protection. ‘This liberty is surrounded by a rather  more penetrable perimeter which both allows me to make the calls and allows others to prevent me from doing so by using that phone themselves, though not by assaulting me, taking my coins and so forth’ (75).

Duties enter the picture when  we commit ourselves to exercising a particular liberty. One has a committed liberty when one is at liberty to do an action but not at liberty to refrain from doing it. Your florist can have a duty  to deliver flowers to the wedding.  At the same time, the florist can have a duty to return his van to the rental agency, even though that would make delivering the flowers impossible.

In that  case, your florist has taken on duties that turn out to be mutually exclusive. He has liberties that are both committed and naked. Your right that the flowers be delivered and the van owner’s right to the immediate return of the van are incompossible. Steiner says, ‘the salience of nakedness in the creation of incompossibilities is clear enough. Any duty which depends for its fulfillment on the exercise of a naked liberty stands  in danger of being  non-fulfillable’ (87). Moreover, committed naked liberties can come into conflict through entirely permissible or even obligatory actions. I may have a naked liberty to catch the only cab in town and may be committed to doing so in virtue of needing to make an appointment (88), but that is incompossible with your similarly naked but committed  liberty to take the cab for an appointment somewhere else.

The solution, in theory, is to not have liberties that are both committed and naked. Intensionally described liberties, though, inevitably are na­ked in some respects. Goal-based rights lack full extensional specifica­tion, thus leaving open possibilities for conflict. Their perimeters are not impenetrable (92). The trick is to contrive a way of describing domains of rights, i.e., sets of vested liberties (90), that avoid the potential for conflict inherent in intensionally described liberties. Accordingly, intensional descriptions of duties must be viewed as, at best, surrogates. They must be translatable  into extensional specifications. The duty to make one’s patient comfortable is not a duty to do whatever it happens to take. It is a surrogate  for an extensionally described duty to (upon request) help one’s patient sit up in bed, give him a pillow, and the like (100).

For any set of rights, ‘Extensional differentiability is the necessary and sufficient condition of their being compossible’ (99). The solution, then, lies in title-based domains, the elements of which are property rights­ time-indexed rights to physical objects -rather than rights to achieve goals (91). Because no two persons can simultaneously have rights to the same  physical  thing,  title-based  domains  effectively partition  action space  so that  no one’s  domain  overlaps  anyone  else’s  (93). In other words, ‘In a compossible set of rights, all rights are funded. The set of resources  respectively  required  for  the performance of each of their respective duties are specifiably distinct from one another’  (101). Any conflicts that do arise among time-indexed  rights to physical things can be adjudicated  by inspecting  their extensional specifications. Such in­spection will reveal who in fact has the right of way in any given case.

Steiner’s way of analyzing rights is lucid and useful. And we can see the point of wishing that our rights could admit of compossible exten­sional specification. Life would  be easier if such  specifications  were known and understood in advance. The practical problem is that exten­sional specifications generally are not the sort of thing one can simply look up. Instead, litigants, lawyers, and  judges often have to propose extensional  specifications. The essence of the conflict, when the time comes, often is about how the translation should go. Will there be an uncontroversial way of making the translation? Yes, if only the transla­ tion can be done in a principled way. Extensional specifications, though, are not principles. The  are the product rather than the producer of the resolution.[4. I thank Michael Nichols and Robert Hood for helpful discussion.]

The nightmare, as Steiner calls it, is that ‘if a set of rights is incompos­sible, then Adjudicator will have in effect to supply such specifications ex post’ (101). Is that so bad? Must a moral system be fully compossible (i.e., guaranteed never to yield conflicting  judgments) right from the start, or is it okay to start with principles that may or may not be compossible, refining them so as to render them compossible in particu­lar respects as the need arises?[5. As Steiner uses the term, if rights are compossible, it isn’t just that people can avoid having their rights get in each other’s way. Rather, they could not put their rights in each other’s way even if they tried (89).]

Consider  that, as children, we embrace simple and straightforward moral rules. As we grow up,we modify them when circumstances force us to modify them. For example, the commandment ‘Do not lie’ that we embraced as children eventually is replaced by a more nuanced commit­ ment to honesty, one that gives way in cases that invoke certain compet­ing commitments, such as to avoid indiscretions that might gratuitously hurt innocent people. Our principles are as complicated as they need to be in order for us to deal with our actual circumstances – no more, no less.

Incompossibility, as a theoretical potential for conflict, is unimportant. Actual conflict is what forces us to modify our principles, not theoretical potential for conflict. If our principles are compossible from the start, then by hypothesis conflict will never actually occur. Nevertheless, the process of internalizing principles is not guided by the issue of theoreti­cal compossibility. Nor should it be. It is guided,as it should be, by actual experience. Our principles of justice take shape as means of resolving actual disputes, not theoretically possible disputes. Thus we embrace, and have excellent reasons to embrace, principles that are not quite compossible.

Steiner wants an escape from retrospective legislating, but such an escape is precisely what  an evolving precedent-based  legal system is supposed to provide, albeit gradually and in piecemeal fashion. When conflicts occur, judges need to refine the contours of rights so as to create compossibility  in that particular  region of the rights landscape. Moral agents sometimes need to refine the contours of their internalized moral commitments in a similar way. That’s  how it works in the real world. That’s how we find out where the incompossibilities are, and that’s how we know which ones are worth fixing.


IV Moral Dilemmas

The next topic is moral dilemma, as exemplified by Sartre’s story of the student  in Nazi-occupied  France who  must  decide  between  staying home with his ailing mother or leaving home to join the French resis­tance. How to make a consistent judgment about what to do? How can a moral code be structured so that an agent will be able to comply with it? As Steiner notes,

 J.O. Urmson has usefully distinguished three broad types of theory concerning the structure of moral  judging. Mononomic theories (such as utilitarianism) hold  that there’s no plurality of first principles or primary rules, that  there’s only a single primary rule, and that all moral judgments are inferable from it. Hierarchical theories allow that there can be a plurality of primary rules, and assert that there are ordered by priority rules (which may include ones demanding decision  procedures). And intuitionist theories, following Rawls’s  description, also embrace the plurality of primary rules, but deny that these are ordered. (113)

 Intuitionism, Steiner claims, cannot be a correct account of coherent moral judgment (114). Why not? Steiner’s conjecture is that ‘what intui­tionists refer to as “weighing up the pros and cons” or “judging the case on its merits” can amount to nothing other than the identification of a priority rule which orders the conflicting primary ones’ (115). So sup­pose that Blue, having read Sartre, eventually  makes up her mind and decides that the student should leave his mother and travel to England where he can join the French resistance. Steiner claims that ‘Blue’s moral judgment in favor of Sartre’s student going to England trivially implies that it’s not the case that he ought to have remained in France’ (116).

To those who believe in the reality of moral dilemmas,  though, the whole point is that this is not trivial. The student’s deciding to join the resistance will of course be extensionally equivalent to his deciding that joining the resistance is his only obligation. That much is indeed trivial. His felt experience, though, will be that of having  two compelling obligations and not being able to meet both.

Steiner argues that all dilemmas can be precluded from occurring. How? The answer is simple. ‘A necessary condition  of a situation’s confronting someone with a dilemma is that the primary rules conflict­ing with it are ones which he already affirms’ (119). To avoid dilemmas, then, one need only be sure not to affirm primary  rules that can conflict with each other.

The surest way to do avoid conflicts among one’s primary moral rules, though, is to avoid affirming any moral rules at all. Just say no. No moral commitments; no moral dilemmas. Steiner’s stated reason for requiring sets of rights to be compossible is that incompossible sets are self-con­tradictory. Now,if that were the only reason, then rejecting moral com­mitments altogether would be the way to go. It is by far the surest and probably the only genuine guarantee against incompossibility.[6. After mentioning an analogous proposal (in the context of interpersonal conflict) to do away with rights altogether, Steiner says, ‘Since the reasons for rejecting such a reform can only be moral rather than philosophical, I shall leave aside any further consideration of it here’ (82).]

One huge problem with rejecting moral commitments altogether, though, is that having the kind of commitments we have may serve an important purpose in our lives, despite the fact that those commitments might some day come into conflict and leave us facing a dilemma. If we should  find ourselves in a dilemma, one way to deal with it is to meet one commitment, fail to meet the other, and get on with our lives, simply accepting that we have failed to meet a commitment. Another  way to deal with the dilemma is to tell ourselves that the commitment we failed to meet was conditional. We can tell ourselves that it was understood from the start that we had other priorities as well, and that some of them were more important. But the latter story often would be false. Sartre’s student may have had reasons to be committed to his family. Such purposes may not have been well-served by a commitment like this: ‘Mom, I swear I’ll always be here for you, unless, of course, something  more important comes up.’ On the contrary, an unconditional commitment was (or could have been) exactly the kind of commitment he had reason to embrace.

Nor is anything  built into the fabric of human  life to preclude our having good reasons to have more than one unconditional commitment. Suppose I want to be loyal – really loyal – to my country and  to my family. It would be a mistake to say I shouldn’t want to be both on the grounds that we can conceive of situations where I would have to choose between them.[7. Steiner replies: Surely the assignment of categorical status to a commitment implies that the assignor has already anticipated the possibility of its conflicting with other commitments (personal communication, cited by permission). Perhaps Steiner is right. (If anything is clear, it is that reasonable people can disagree on the subject of moral dilemmas.) My view, though, is that a person could with utmost sincerity make two unconditional promises, not noticing the extremely remote possibility of their coming into conflict. As I see it, the unnoticed and extremely remote possibility of conflict does not change the fact that the two commitments are unconditional.]

If we anticipate conflicts between  our  prospective  commitments  to country and family, then we cannot embrace both in a genuinely uncon­ditional form. If we do not anticipate conflict, we are entirely capable of embracing both. If conflict unexpectedly materializes, we will have a dilemma on our hands. Be that as it may, the price of insisting that our moral code be guaranteed never to leave us in a moral dilemma is that we fail to embrace the kind of commitments that human beings have reasons to embrace and we fail to be the kind of moral agents that human beings have reason to be. Or so a pluralist might argue. If we are in a dilemma, such that we are forced to act in a way that is extensionally equivalent  to having no more than one unconditional commitment, we will feel a sense of loss, and  rightly so. If we insist on having  no more than one unconditional  commitment in the first place, then we pay the price up front, perhaps  needlessly.


V Gridlock

Justice is about who ought  to stand  down in cases of moral deadlock. Rights supply a reason for one of the adversaries to yield, without implying that the adversaries have reached agreement about the sub­ stantiveissue. The Adjudicator in Steiner’s dialogue informs the disputing parties that,

 We get the rights rule solution by asking “Who should have the freedom here?” and not by asking “Which one of your respective opposing actions is the morally better one?” We know that there’s no agreed answer to the latter question. That’s why, even if you both accept the rights rule solution, you’re not going to leave the shop in perfect rapport with one another. But each of you can agree to the same answer to the former question despite, or consistently with,your disagreement on the latter. (210)

But how to guarantee that my reason to yield the right of way will trump all my reasons not to? Steiner answers that, on pain of inconsis­tency, I can have no primary rule specifically enjoining me to violate rights per se. Accepting an injunction to violate rights contradicts accept­ing rights as rights in the first place (198). This seems correct, as far as it goes. The problem is that it does not guarantee the primacy of rights. For one thing, it does not rule out having primary rules enjoining me to do things that incidentally violate rights, as Steiner admits (198).

What if the only way to avoid  catastrophe  is to do something  that incidentally would violate someone’s rights? Steiner’s answer, in effect, is that we have to get our story straight (199). Look at it from the point of view of people whose rights we want  to violate so as to avoid catastrophe. ‘For them, whatever  would occur as a result of their rights not being violated simply does not amount  to a moral catastrophe. Because if it did, they would thereby  have sufficient reason to stand down and waive the correlative duties owed to them’ (200).

For several reasons, this will not do. To mention just one, consider that people whose rights stand in the way of averting a catastrophe may not know it, and there may not be time to explain. I hasten to admit that Steiner has a point of practical significance. As a matter of fact, people typically do waive their rights in emergency situations, and go to great trouble and sometimes great risk to be of help. Certainly they avoid getting in the way. Regarding the theoretical issue, though, the fact that looming catastrophes give people reason to waive their rights is beside the point. The theoretical issue is about what  happens when, for any number of reasons, people have not waived their rights. The original question has been left untouched: What if the only way to avoid catas­ trophe is to violate rights?[8. Another way to duck the question would be to claim that, if Blue forgives us for breaking her arm  in the course  of preventing a train  wreck, then it retroactively becomes  the case that we did  not violate her rights. (Really? Suppose we steal her silverware and  she forgives us for that too.) In any case, however many ways there may be of ducking the question, we still need an answer to it.]

For that matter, what if all of our alternatives involve violating rights? Steiner’s answer is that this is impossible. ‘The rights rule has to be such that, in any conceivable deadlock, only one of the parties is within his/her rights’ (201, emphasis added). The only way to guarantee this is to insist that rights must be compossible (202). We guarantee that there can never be conflicting rights by stipulating that genuine rights never conflict. The things we think are our rights may, for all we know, be prone to all sorts of conflict, but genuine rights cannot be.

When Steiner takes up the topic of duties to enforce rights, though, he seems to accept the possibility of unresolved  deadlock. Certain rights­ violations cannot be redressed. The victims can never be made whole. Suppose I can stop one such impending  rights violation or another, but not both. (Perhaps I am a police officer and  have a duty to stop such things.) Steiner concedes that, in that kind  of double-duty case, ‘it’s correct to describe my choice as defaulting on one of my two enforcement duties. Can any theory of justice do better?’ (206) Steiner may be right; perhaps no theory  of justice can do better.  But then, in light of this concession, it is no longer open to Steiner to insist on compossibility as the only way to guarantee that rights cannot conflict, for it turns out that compossibility is no guarantee.


VI  Equal Shares

Any workable dispute resolution mechanism has to begin with the idea that other people, right or wrong, sometimes have the right of way. Everyone has the right to be wrong (208). ‘Justice is a rule investing each person with a right to equal freedom…. A rule that distributes freedoms equally is obviously untainted by tendentious instrumental considera­tions of what that freedom is going to be used for…. Its freedom-alloca­tions can be used for actions which are good, bad, or morally indifferent. So it can underwrite a right to do wrong’ (216).

Abruptly, the conversation turns to apples. Steiner asks us to imagine that we are called to a meeting to decide on a principle of distribution. ‘Suppose what’s to be distributed  is a bundle of apples. Apples are a lot like freedom, as will soon become evident’ (217). The ensuing argument, though, is not about distributing freedom. It is about distributing natural resources. What would count as a neutral, impartial, and principled resolution, in keeping with our right to equal freedom?

Since each person  is invested with the same  power  as everyone else, each person’s antecedent title must  be the same as everyone else’s. Now, unless I’ve missed something, there are only two possible interpretations of what those titles are title to. One is that each person has a title to the whole bundle of apples. And the other is that each has a title to an equal share of apples. (219)

The first possibility is ruled out because the set of duties it entails are not compossible (219). Hence, by elimination, ‘each person has an ante­cedent right to an equal share of the apples’ (219). This is not to say there is an end-state  principle of distributive  justice mandating  that we have equal numbers of apples. As Steiner points out, such a principle would be violated every time I ate an apple (224). The right  to equal shares cannot be a right to an ongoing relation of equality. Instead, it is a right to be given, at the age of majority, an equal share ofthe world’s unowned resources.

Steiner later explains what equal shares means (268-72). If there are two people and twelve acres, an equal share is six acres. If we add a third person, then an equal share is four acres. And so on. Now suppose  the third person is a latecomer, arriving after the twelve acres have long since been divided and cultivated. In that case, the third person is entitled to the value of four (undeveloped) acres.

But wait. The introduction of latecomers changes everything. Go back to the original meeting, where people are discussing how to distribute a bundle of apples. Steiner said there were only two alternatives, and of the two, only equal shares was credible. Now we learn that his actual proposal is that shares be perpetually  held  in suspense, pending  the arrival of latecomers. Meanwhile, back at the meeting, the folks are saying, ‘If that’s what  he means by equal shares, then I can think of a third alternative: equal shares for us. To hell with latecomers.’ Let the record  show that I’ve repeated  this thought experiment many times under strictly controlled conditions, and the third alternative  wins by acclamation every time.[9. Incidentally, latecomers get most of the benefits under this regime, despite having officially been left to fend for themselves. Under the regime implied by the third alternative, the later they show up, the luckier they are. People who show up really early get to forage for nuts and berries, in the snow, with their bare hands; whereas we know from our own experience, people who show up late enough get refrigera­ tors, hot running  water, and pizza delivery. See David Schmidtz, ‘The Institution of Property,’ Social Philosophy and Policy 11 (1994) 42-62.]


VII Self-Ownership

Steiner takes himself to have established  that assignments  of freedom take the form of property  rights, and  that property  rights consist  of original equal-share rights and created derivative rights – an important distinction given that it is only original rights that justice requires to be equal (229). How then do we create derivative rights? Steiner begins by saying  that  slaves have  no rights  (231). To have any  rights  at all, a person’s self must not be part of someone else’s bundle. Steiner imme­diately concludes, ‘It follows fairly readily from this that our respective bundles of original property  rights must include at least ourselves. We must each be self-owners’ (231).[10. Steiner would  not prohibit our selling ourselves into slavery, though. Our right to ourselves is no exception to the rule that all rights are waivable.] The argument is painfully thin, but the conclusion is plausible enough. Suppose  we accept it for argument’s sake. The next step is to explain how people could derive rights to things other than their selves. Ownership is, in general, transitive. That is, if I make X from things I own, then as a general rule, I thereby own X. Thus, self-ownership grounds title to things produced entirely from self­-owned things (235).

That suggests a problem. Steiner notes that ‘each of us is the fruit of other  persons’ labor. How  can we each own what  we produce if we ourselves are others’  products?’ (237) If people own what they beget, then how can members of the next generation be self-owners? Steiner argues his way out of this quandary by invoking an assumption  tradi­tionally viewed as an objection to the Lockean story, namely the idea that labor-mixing does not suffice to establish unencumbered title to things produced from unowned inputs (247). If our parents do not acquire unencumbered  title to things produced  from unowned  inputs, then we have a way out if only we can argue that we are not entirely the products of our parents’ labor. Next, note that we are products  of our parents mixing their labor with their germ-line genetic information, and suppose that germ-line genetic information is a natural resource and that natural resources are unowned. Given all that, it follows that mixing labor with germ-line genetic information does not generate unencumbered title to one’s children (248).

What  form does  the encumbrance take? Following Steiner, let us simply assume it takes the form of parents owning their children only until the children reach the age of majority, after which children become self-owners. Children, Steiner says, have no rights (245). Minors are ‘at the disposal’ of their parents (248). When we cease being minors, though, we become self-owners, and acquire rights in the process.[12. Another way to look at it is to say children are self-owners from the start but  their self-ownership is temporarily encumbered by legitimate interests of parents. I thank Cecilia Nalagon for this suggestion. In any case, parents are not owners of their children. They are not at liberty to dispose of their children. Perhaps they are stewards. Their mandate is to do what they think is best for the child. Part of what is involved in carrying out that mandate is relinquishing control to the child as the child becomes capable of making his or her own decisions. And if parents do not carry out that mandate in good faith, they lose it; other adults (and the child too, I would  say) acquire the right to remove the child from  the parents’ custody.]

If Steiner’s argument that parental title is encumbered  by the contri­butions of unowned germ lines goes anywhere, it may not go in a direction he intends. If our parents’ germ lines are an unowned resource, and if mixing their labor with such a resource does not generate unen­cumbered  title to the products (i.e., to us), then we seem to inherit a bigger problem. Presumably,  we don’t own our germ lines either. In which case, how do we get unencumbered title to anything  at all? Our ownership of our labor is in doubt, since our labor power is the outcome of a process that uses unowned  germ lines as inputs. For that matter, our bodies themselves are phenotypic expressions of those germ lines. On Steiner’s assumptions, it is unclear how there can be any such thing as unencumbered ownership – even  of our own bodies. In any case, Steiner has given the old  Lockean argument  a new  twist. If the new argument  is no less vulnerable than the original, working through  it is at very least an interesting exercise.

I am left with the following thought. Do we really need a tortuously complicated story about self-ownership?  Why not just say that if you make something  with materials to which no one else has a claim, it’s yours? Likewise, if you make something  with materials freely given to you (or given up) by someone else, then you are making something with materials to which no one else has a claim. In that case, it’s yours. Further, if your person constitutes something made of materials freely given to you (or given up) by your parents or anyone else, then you constitute something to which no one has any claim. And if and when you make something out of yourself, then that too is yours.


VIII  But Who Pays For the Funeral?

Recall that, after proposing a questionable dichotomy between Choice Theory and Benefit Theory, and eliminating the latter, Steiner concluded that the power of waiver is a necessary condition of having a right. At the time, the argument seemed unmotivated, but it later turns out to be pivotal. From it, Steiner infers that the dead lack rights, since they, being dead, lack powers of waiver. ‘In short, there can be no moral counterpart to the legal power of bequest. So the justification of bequest, if there is one, cannot lie in the demands of justice. And the property of the dead thereby joins raw natural resources in the category of initially unowned things: things to an equal portion of which, as we’ve seen, each person has an original right’ (258).

Suppose we lose our rights when we die. What happens to the duties that were once correlative to those rights? Suppose I mail a parcel to you, but I die before the parcel reaches you. Would that give Steiner the right to intercept  the parcel and reroute it to a global fund?[12. Steiner says it would  (personal communication, cited by permission).] Why can’t I sell or give my house to you while I am still living? Does any moral or legal obstacle arise if I direct that the actual transfer will take effect at some future date? Does any moral or legal obstacle arise if I name as the future date the occasion of my death? Steiner says a moral obstacle does arise. There ‘can be no moral counterpart to the legal power of bequest’ because the legal power is merely a legal fiction (258). Really? Suppose I have the legal and moral right to give my stereo to my brother. Given that supposition, if I do in fact direct that my stereo is to belong to my brother, such transfer to go into effect at the time of my death and to be revocable before then, the fact of my so directing  is legal and  moral reality, not fiction. Or so it seems to me.

What could Steiner’s  proposal  mean in practical  terms? In the real world, people would not wait for the government to put their resources into a global fund. One way or another, people typically make sure their resources are either exhausted or else are in the hands of people they care about  by the time they die. Steiner gives no indication  of thinking it should it be illegal to sell property to one’s children, or to set up college trust funds for one’s grandchildren, or to give money to one’s favorite charity. Yet, unless  prohibitions  of such transfers  were ruthlessly  en­forced, the estates that are supposed  to bankroll the global fund would be nonexistent.

This cannot be what Steiner intends, since he says his proposal ‘man­dates a far more extensive  redistribution, and one more globally di­rected, than anything contemplated by recent, much less earlier, classical liberals’ (282). How would it do that, though? Steiner says the theory doesn’t depend on premises about incentive structures (282). Perhaps the conclusion that his proposal mandates extensive redistribution does not depend on incentive structures. On the other hand, if we were to predict that repudiating rights of bequest would bring about extensive redistribution by freeing up large estates to feed the global fund, our prediction surely would very much depend on premises about incentive structures. Indeed, we would be counting on incentive structures being unlike anything ever seen in the real world.

Does Steiner think the world would be a better place if we gave up the right of bequest? If so, why not just say so, explain why, and give us a better alternative? Instead, Steiner argues that we have to adopt his equal shares proposal, and apply it equally to latecomers, not because it is a good proposal but rather because at the imagined town meeting there were only two alternatives and the other one, namely ‘everyone owns everything,’ was incompossible.


IX Redressing  Overappropriation

The epilogue defines two types of redress. Bilateral redress undoes unlawful transfers from specific owners. Multilateral redress takes from those who appropriate too much and gives to those who appropriate too little (268). ‘In a fully appropriated world, each person’s  original right to an equal portion of initially unowned  things amounts to a right to an equal share of their total value’ (271).[14. Suppose I own six acres of downtown Manhattan and the time comes for me to give up the value of two undeveloped acres. Do I have to give up the value that two acres would have now? Or do I give up the value that two undeveloped  acres had centuries ago before the area was settled? If the latter is what a pro-rata equal share of natural resources is supposed  to be about, then most of us get the equivalent of that by the time the doctor cuts our umbilical cords. If the former, then what the latecomer is really asking for is not a slice of natural resources, but rather a slice of an economy the overall value of which is more a function of other people’s labor inputs than of natural resources.] When he says each person, he means each person in the world. Money taken from overappropria­tors goes to a global fund for compensating  underappropriators (270).

Note that if, at the outset, there are two people and twelve acres, and we each take six acres, we are not overappropriators. Indeed, if we take five acres each, we are  underappropriators. Even so, when the third person shows up, we pay. Thus, Steiner is not proposing to take only from overappropriators. Underappropriators lose as well. Thus, it is misleading  to characterize  this redistribution as a form of redress, for resources  are  taken  from people whether or not they did anything wrong.

Would people be friendly to strangers in such a regime? Probably not. The mere existence of other people would be a constant  threat. Steiner might not feel that way. I might not either. But the average person would. To some extent, the average person  already does, even now. Imagine taking the amount of xenophobia  we already  have in the world and making it, say, a hundred times more intense. Imagine a world of one hundred people, each with a one hundred foot wide lot. Your lot shrinks by a foot or so whenever someone new shows up, and expands by a foot or so  whenever someone dies (or dies  unexpectedly, with  no time  to disperse their assets). It sounds like Hobbesian war to me. It is staggering to think  we got to this conclusion after beginning with a conception of justice as a mechanism for resolving disputes.

Some egalitarian theories are repugnant even in theory, attractive only to those who  resent other  people being free. Steiner’s book is a sympa­thetic reply to egalitarianism as much as anything else. Steiner is trying to define  an egalitarianism geared  to giving  people more opportunity rather than less. He envisions a society in which people get a leg up when they  reach  adulthood, and then are pretty much left to stand or fall according to their own  merit – until they die, when the fruits  of their labors become seed capital for the next generation.

Existing institutions of inheritance, though, are meant to do exactly that. And in terms of inducing people to set something aside for latecom­ers, they have been enormously successful, although they hardly result in a ‘level  playing field.’ I don’t blame egalitarians for considering them manifestly imperfect. On the other hand, if the proposed alternative is to pool our assets in a global fund, consider this: In the United States, existing  government schemes for pooling assets, whatever their intent may have been, have had the actual effect of bequeathing to future generations a debt that is now five trillion dollars, increasing at  the moment by roughly a billion dollars a day. This hardly counts as setting aside equal shares for latecomers, yet that is what government schemes for pooling assets tend to do. They go bankrupt, leaving  latecomers to pick up the pieces.

So I agree that a world in which everyone starts out at the age of twenty-one with a substantial equal bankroll (and eventually returns the favor by letting their estates  revert to the common fund) is an attractive world, perhaps even a just world. If I could push a button to realize that vision,  I would be seriously tempted to  do  it. However, repudiating inheritance and  establishing a global  fund  is not that  button. It would not begin to realize Steiner’s vision.

Nowhere in the book is there evidence of how Steiner thinks  his conception of rights could be put  into practice. There is no history, no empirical research, and  there are hardly any real examples. Instead, the argument is carried by imaginative but misleading thought experi­ments. On the back cover, Brian Barry is quoted as saying that ‘those who are  unpersuaded will learn a lot by being forced to figure out where the rabbit was introduced into  the hat.’ With this, I agree. It is not a persuasive book. That does not seem  to be its aim. It is, however, a creative and  provocative piece of philosophy. It is intricate and eccentric.  The arguments are unlike anything I’ve seen  before.  Realis­tically, no one can expect  to cover as much  ground as Steiner without false steps, but in this book even the false steps are  instructive.  For anyone seriously  interested  in moral and social philosophy,  An Essay on Rights is well worth reading.

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