One of Rawls’s best papers is “Two Concepts of Rules”. I’m going to discuss one aspect of it here. I’m assuming you’ve read the paper, or at least read a good summary of it. If not, this post will seem obtuse.

Rawls points out that there is a distinction between justifying a particular move within a game and justifying the game itself.

Inside the game, what justifies players’ and referees’ decisions is adherence to the rules. But we can step outside the game and ask why we should have those rules and not others, or why we should even play that game at all.


So, for instance, we play basketball for fun, entertainment, and profit. But when referees decide whether a particular player was traveling or committed a foul, the referees should not decide by asking which result would be the most fun, entertaining, or profitable. Even if it would be fun for referees to give a player an extra free throw in this one game, it would really mess up the game to imbue referees with that much discretionary power. Indeed, if referees could make such decisions on the spot, it’s not clear we’d be playing basketball at all anymore. We’d be playing something more like Calvinball instead.

Now, we can and do change some of the rules of basketball, but this is a slower process, not something done during the game on a case by case basis. Rather, we ask what the long-term expected consequences of rule changes will be. We ask whether a rule forbidding body checks in basketball enhances or harms the game. We ask whether reducing or extended the shot clock enhances or harms the game. And so on. We don’t want referees to decide to extend the shot clock on a case-by-base basis, but we do want to have some procedure for modifying the rules about the shot clock.

We can extend that kind of reasoning to thinking about property rights. Suppose you find a wallet. Nozick asks, what should you do with it? Give it to the neediest person? Distribute it according to the Difference Principle? Hand it to the most meritorious individual? Of course not. Instead, you should return it to its rightful owner. Similarly, when we ask what makes my car mine, we just point to that fact that, according to the rules of transfer, I acquired the car the right way and am entitled to it. But these are all valid moves, following the rules, inside the game of private property.

However, philosophers, political scientists, and economists can step back from the game and ask, “Why those rules and not others? Why not have  a slightly different system of private property rules? Or, why bother play the game of private property at all? Why not play by an entirely different set of rules?”

1. According to our current rules of the private property game, when a plane flies a mile over my house, it doesn’t trespass.
2. However, we could easily have a different set of rules for the private property game. Had Hinman vs. Pacific Air Transport been decided differently, we might instead have a convention in which landowners such as I could forbid planes from flying overhead.
3. Or, we could dispense with private property altogether, or have much weaker property rights than we in fact have.

Some libertarians without much background in political philosophy like to challenge Rawlsians with an argument like this: “If my neighbor’s house burns down, it would be nice for me to help him out. But we can’t just come over to my house and force me to give him 33% of my income. So, if not, then why can the government force me to pay 33% of my income to help people on the other side of the country?”

This misunderstands Rawls’s position. Rawls does not claim that on a case-by-case basis other people’s need trumps your property rights. (In the same way, he rejects the view that fun trumps the rules of basketball on a case-by-case basis.) Rather, Rawls claims that, in the circumstances of justice and when there is a high enough level of economic development, a prioritarian principle of social justice must be satisfied in order to justify the game of private property. (It’s a bit more nuanced than that, but it’s a good first pass.) We should play the version of the private property game that satisfies that principle of justice. Rawls thinks that a game called “property-owning democracy,” a game that allows a welfare state, is the best way to play the private property game. I think he’s wrong about that, though. In fact, just people people would play anarcho-capitalism; property-owning democracy is a game for culpably unjust people. However, my disagreement with Rawls here is not over the standards by which we judge the private property game, but rather over what version of the game best satisfies those standards.

Anyways, let’s be clear about just where a conventional hard libertarian and Rawls disagree. Both the hard libertarian and Rawls agree that just because other people need your stuff more, you don’t thereby lose your property rights. However, the hard libertarian and Rawls disagree about what it takes to justify private property rights in the first place, and what sort of private property rights regime is justifiable. Rothbard favors a private property game in which people can acquire nearly absolute property rights through homesteading and transfer. Rawls favors a private property game in which people can acquire less than absolute property rights through various means (including homesteading and transfer), subject to the proviso that the entire system needs to benefit the least advantaged workers sufficiently. If Rothbard is right about what game we’re supposed to play, then all taxation is theft. If Rawls is right about what game we should play, then some taxation is not theft.


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It usually begins with Ayn Rand, wrote Jerome Tuccille back in 1972, and so it did with me. My first exposure to libertarianism was Rand’s novel, The Fountainhead, and it didn’t take long before I adopted her strong rights-based view of libertarianism as my own. Heck, I even started my own student club, with the appropriately deferential, Rand-sanctioned title and everything.

I grimace a bit on reading that interview again now. I still think The Fountainhead is a terrific book. And I still think there is a lot to admire in Rand’s fiction and (somewhat less so) in her explicit philosophy. But as one might surmise from the title of this blog, I’ve moved quite some distance from Objectivism in terms of political philosophy.

Up until now, I hadn’t taken the time to write up any of my reasons for disagreeing with Objectivists. Partly, that’s because I thought that several of the critiques that had already been published did a very good job of expressing my concerns. Like this paper by Eric Mack, for instance. And thisthis, and this by Michael Huemer. Still, it was always something I wanted to get around to, eventually.

So when the Ayn Rand Society asked me to comment on a paper by Fred Miller and Adam Mossoff on “Ayn Rand’s Theory of Rights” at the upcoming Pacific Division Meeting of the American Philosophical Association (right here in sunny San Diego!), I gladly accepted.

You can read the full version of my comments here. My critique focuses on what I see as three problematic elements of the Randian theory of rights.

First, the relationship between Rand’s egoism and support for individual rights. The fact that your life is a value to you gives you a reason to preserve and promote your life. What is less clear is how it gives you a claim on anybody else not to be interfered with in certain kinds of ways. But such a claim is precisely what’s involved in the right to life.

Second, the nature of value and its connection to the Objectivist support for property rights. Rand famously held that man’s mind is the ultimate source of all value. And Adam and Fred make the even stronger claim that natural resources like land are, in themselves, no value at all. This makes the Randian justification of property rights easier, I think, than it ought to be. Whether natural resources are valuable in themselves, they are at the very least necessary preconditions for value. And this, again, raises the question of why others should respect your claim to exclusive ownership over those resources.

Finally, I raise some questions about the role of the Non-Aggression Principle in Ayn Rand’s theory. Rand opposed the initiation of physical force because she thought that force prevents individuals from acting according to the dictates of their own reason. But whether this is true – and whether force is the only way in which individuals can thus be hindered – depends on whether we understand the concept of “force” in a moralized or a non-moralized way. Unfortunately, either approach raises difficulty for the Randian argument.

After I present them this Friday, I’ll be revising these comments for publication in the proceedings of the ARS. So comments and feedback are more than welcome.

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With my first post as an official member of BHL, I’ll take a big picture approach and briefly explain why I think utilitarianism should be attractive to bleeding heart libertarians. There have already been several excellent discussions of utilitarianism on BHL (see here, here, and here for instance) and I’d like to contribute my two cents.

As most of you probably know, utilitarianism is the moral theory that tells us that maximizing utility is the right thing to do. There are different ways of understanding what exactly “utility” is, but I’ll go with preference satisfaction. I should say up front that I don’t have settled convictions about whether utilitarianism is the correct moral theory, but I’d say I’m less persuaded than most by the standard objections to utilitarianism.

So, why utilitarianism? One standard way of determining whether you should accept a moral principle is by seeing whether it can make sense of the particular moral judgments that you accept. Utilitarianism fits quite nicely with many of the judgments that bleeding heart libertarians endorse:

1.     Consequences Are What Ultimately Matter, Not Intentions. Utilitarianism cares only about the consequences of institutions, not the intentions of their designers and participants. If a law intended to help the poor actually harms them, utilitarianism would oppose it. On the other hand, if self-interested activity serves the public interest via the invisible hand of the market, utilitarianism would support it.

2.     (Anti) Paternalism. Utilitarianism explains why the state has no business interfering with the private acts of informed and consenting adults. It doesn’t recognize any perfectionist standard that would justify prohibiting acts that satisfy the preferences of those involved.

 3.     Social Justice. The distinctive feature of bleeding heart libertarianism is its claim that economic institutions should prioritize the alleviation of poverty. Utilitarianism agrees: utilitarian institutions will prioritize gains to the poor because of the diminishing marginal utility of wealth. An extra dollar is worth more to the person who earns $1 a day than to the person who earns $1,000 dollars a day. (Which institutions do the best job of alleviating poverty is an empirical question on which utilitarianism takes no stand.)

4.     Basic Income: The sort of redistribution that best satisfies utilitarian standards is probably something like a guaranteed minimum income or a negative income tax rather than the in-kind provision of goods like healthcare or education. Information problems are going to make it very hard for governments to determine the utility-maximizing allocation of resources. What if I prefer $5000 worth of healthcare and $3000 worth of education, whereas you prefer $3000 worth of healthcare and $5000 worth of education? It’s better to just allocate $8000 worth of cash to each of us and let us buy the goods we want on the market.

5.     Open Borders. Utilitarianism gives equal weight to the happiness of all persons, so the happiness of people living outside of our borders matters just as much as the happiness of people living inside of our borders. Utilitarianism would therefore reject nationalist arguments for immigration restriction and recommend opening America’s borders to immigrants.

Why, then, do so many libertarian philosophers (and philosophers in general) reject utilitarianism? There are plenty of objections, but I’ll focus on what’s probably the most common one: the separateness of persons.

Matt and Kevin have each explained the separateness of persons objection to utilitarianism  before (here and here). The basic idea is that utilitarianism only cares about maximizing welfare; it doesn’t matter how it’s distributed. But it should: you have goals and projects that shouldn’t be sacrificed simply because your sacrifice provides even greater gains to others. Maybe you’re justified in cutting off your gangrenous arm to save your life, but society isn’t one big body such that we can dispose of one part to benefit the rest. We aren’t morally permitted to harvest Bob’s organs to save the lives of Catherine and Daniel.

Rawls is probably the most famous proponent of the separateness objection to utilitarianism and he thinks the solution is to endorse something like a mutual acceptability condition: coercive institutions have to be justifiable to everyone. And since those people made worse off by the state are the people who have the least reason to accept it, the state should make the worst off as well off as possible. Thus, we arrive at the difference principle which tells us to maximize the income of society’s poorest.

The problem is, the difference principle can violate the separateness of persons too. As Rawls himself notes, the difference principle implies that a single penny ought to be distributed to the poorest person or class even if everyone else in society (including people who might be very poor in absolute terms) must forgo billions of dollars to provide that penny. Not only is this implication extremely counterintuitive, it violates the separateness of all persons outside of the poorest class: they are required to make enormous sacrifices to their own life projects to provide that penny, the very projects that the separateness of persons is meant to prize and protect.

A Rawlsian could of course depart from Rawls and reject the difference principle. Maybe we should privilege, but not maximize, the well-being of the worst off. At some point, gains to the worse off can be outweighed by gains to the better off. But now we’re back to utilitarianism, which, as we’ve seen, preferentially allocates income to the poor because of the diminishing marginal utility of wealth. So despite their differences in principle, utilitarianism and Rawlsianism could be very similar in practice.

For the record, Rawls’s own reply to the counterexample is that it’s unrealistic. He’s right, but what’s good for the goose is good for the gander. If we’re discussing what is realistic rather that what is possible, then the utilitarian is back on solid ground. While it is possible for utilitarianism to recommend organ harvesting, hospitals that expropriate organs would not contribute to a happy and peaceful society in the real world.

Utilitarianism has much to recommend it to bleeding heart libertarians. Worries about the separateness of persons shouldn’t convince you otherwise.

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