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?”

Consider:
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.