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Introduction - Anthony de Jasay, Justice and Its Surroundings [2002]

Edition used:

Justice and Its Surroundings (Indianapolis: Liberty Fund, 2002).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Introduction

If “a thing is what it is, and not something else”—a safe enough proposition—we ought not to call it by something else’s name or describe it by something else’s defining characteristics. Wealth is wealth, and not freedom. One is a relation between persons and things; the other a relation between persons and acts. A freedom is a freedom, and not a right. The two denote fundamentally different relations between persons and acts. They need two different words to denote them, and the words are not interchangeable. Moreover, to assert a right to some freedom is to confuse a freedom with a privilege. If you needed a right to a freedom, it would not be a freedom. Rights are almost invariably represented solely in their beneficent aspect, their burdensome corollary passed over in silence. This falsifies the concept, failing to express in some way that no right can be conferred on someone without imposing an obligation on someone else; a right owing to somebody is owed by somebody else. Justice is justice, and not fairness or equality of some kind. Nor is it an all-embracing scheme of mutual insurance, and still less the terms of an agreement that might be reached under certain circumstances in an imaginary world. It is one thing to illuminate an idea by drawing parallels between it and related ones, but quite another to construct false identities that, helped by the law of adverse selection that governs much intellectual intercourse, will crowd out less-fanciful ones.

The carefree ease with which the word denoting one concept is borrowed and passed off as if it denoted another attracts little notice. Yet its gratuitousness and incongruity ought to raise eyebrows. It serves no good purpose, and it makes a curiously ill-fitting pair with the parallel tendency to dissect these concepts with the tiniest of scalpels and analyze them at painstaking, and all too often painful, length. It seems to me that by promoting clear thought, however, one would be doing a greater service to the good society than by promoting good principles. If the reader of what follows feels that too much effort is going into the first of these objectives and not enough into the second, he now knows the reason why. I cannot prove, but am prepared to affirm, that if you take care of clarity in reasoning, most good causes will take care of themselves, while some bad ones are taken care of as a matter of course.

The title of this book tells the literal truth: the central essays, which all deal with justice, are surrounded on either side by treatments of subjects that are emphatically separate from justice, but that are never far from it, and with which it is much of the time mistakenly commingled. The state, the redistribution of income and wealth, the benefits and burdens between those who make collective choices and those who submit to them, the shaping of economic and social institutions so as to make them fit a unified ideology, and the problem of individual liberty occupy most of the areas that surround justice and sometimes encroach upon it. The essays arranged in parts 1, 2, 4, and 5 range over these fields without, of course, treating them anywhere near fully.

Although it is from these surrounding areas that claims are addressed to justice, it is by no means the case that all, or even most, of them are for justice to resolve. It is one of the most pervasive fallacies of contemporary political theory that, one way or another, normatively if not positively, every unfilled need, every blow of ill luck, every disparity of endowments, every case of conspicuous success or failure, and every curtailment of liberties, is a question of justice. If this were so, justice would have swallowed up the entire universe of social interactions and would have destroyed itself in the process. Called upon to set the world to rights, and to make it nice and cozy, too, justice would either act outside recognized rules or expand them indefinitely and make their system inconsistent, mutually irreconcilable. It is essential for the understanding of justice that many questions, however important to human coexistence, are irrelevant to it. Justice, to stay within a consistent set of rules laid down by just rule making, must dismiss them. If they are to be dealt with at all, it must be by principles other than the principles of justice. Securing full employment is most desirable, but that does not make it a question of justice. Lack of charity and consideration for others is reprehensible, but it is not a question of justice either.

Rival Concepts of Justice: No-Fault and Responsibility

In all reflection about what justice does and does not mean, the parting of the ways that sets the direction of all further thought comes at a very early point. One way to go, which I shall call, for want of a better word, the “no-fault” concept of injustice, is to consider states of affairs in relation to a norm, an ideal state of the world.

Actual states may be found unjust if they diverge from the ideal in certain ways. The principles guiding these findings will be the principles of justice. They can be violated without any human agency causing the violation (though it may be incumbent upon human agency to redress them if it is feasible to do so). Injustice, in short, can arise without an unjust act of man bringing it about. It is, in this essential sense, “nobody’s fault.”

The other way pursues fault. It is guided by an older, rival concept, where justice is inseparably united with responsibility. Redress is not called for if blame or guilt is not shown. Rules are not intended to help achieve a particular state of the world but more modestly to ensure compliance with important conventions. Chapter 10 seeks to clarify this concept, capturing its spirit in the two maxims “to each, his own” and “to each, according to . . . .” The concept, contrary to its more recent rival, does not admit that a state of affairs can be found to be unjust unless the putative injustice can be clearly imputed to an unjust act or acts. The principles of justice are those that help us tell just acts from unjust ones. If every act is ultimately the act of some person or persons rather than of such conveniently nebulous entities as history, society, or the market, personal responsibility must be pivotal to this concept of justice and decisive in distinguishing between the rival concepts and the ways their principles are derived.

Going down the no-fault way, it is perfectly consistent with the resulting principles to find that a state of affairs is unjust without attributing this to wrongdoing or unjust dealings on anyone’s part. Blaming “the system” or the lack of suitable institutions is characteristic of this holistic way to justice. Obviously, a system or an institution is not responsible, or at least not in the sense relevant to acts by persons, unless, as a last resort, responsibility is traced to the acts of the persons who brought into being the system or institution in question in the first place. Thus, for instance, it could be argued that taking first possession of property was an unjust act responsible for the injustice of the capitalist system that grew out of the initial appropriation of what was previously unowned. The room that this line of reasoning secures for responsibility is likely to be made exiguous by the vagueness of the putative injustice and its remoteness in history. However, even this exiguous place is a contingent, incidental one and not an integral part of the concept. For an unjust state of the world—unjust, that is, by the yardsticks the concept generates—can come about without any man-made institution being at fault. The caprice of Nature in endowing men with different capacities and their habitat with resources is a sufficient cause and indeed the major operative one.

Perhaps the most potent force driving apart the two concepts of justice is the weight exerted on each by moral intuition. In the no-fault concept, moral intuition, and particularly the widespread, deeply felt, but inchoate feeling that most people could not and do not try to define, supports the idea that equality is essential to justice and injustice begins where equality ends. Its heavy reliance on the instinctive attraction of equality lends this concept great appeal. At the same time, the inherent woolliness of the notion of equality, and the great difficulty of clarifying it, is one source of its weakness. Its rival, the justice of responsibility, is almost leaning over backwards to allow the least-possible room for moral intuitions. Evoking our “disorderly minds” and the irredeemable inconsistencies of our moral intuitions, chapter 10 argues that a proper and solid concept of justice is composed of elements of a different and more orderly kind.

It is, in fact, the compulsive need to formulate the requirements of justice on a foundation of some, however ill-defined, ideal of equality that turns the no-fault concept into what it is. It becomes a logical necessity that it should be designed to judge states of the world rather than acts. It is morally undeserved that some people’s lands should be more fertile, their climate more temperate, and their neighbors more peaceful than those of others. It is morally undeserved that one person should be born with greater (or indeed lesser) talents than another, or have more energy, application, and whatever else it takes to make himself a better life than another. Any advantage or disadvantage in achievement, welfare, or position is always imputable to differential endowments, both material and human, including the human resources of self-discipline and application. If the inventory of resource endowments is truly complete, no residual advantage remains that could be imputed to the person’s own doing. He is not responsible for being ahead or behind, above or below any other person. It is not his fault or that of the other person. Nature does it all. Human injustice, reprehensible acts by individuals or groups against one another, are clearly not excluded by the no-fault scheme of things, but they are ad hoc, not integrated. Unjust states of the world would be generated by Nature even if only earthly angels inhabited it.

It is perhaps mildly amusing to find that, when each is pressed to yield its ultimate implications, both rival concepts have a strong feature in common: both have a chief culprit. For the one, the inexhaustible and principal source of injustice is Nature; for the other it is the state, or more precisely the power of collective choice to which individuals are exposed with scant ability to defend themselves. Much, if not most, such choices transgress both “to each, his own” and “to each, according to. . . .” Moreover, both of the major culprits generate injustice with complete impunity. No retribution is meted out to Nature for endowing one person with kinder and wiser parents, keener wits, and more stamina than another, and the river demons are not flogged for conjuring up the flood that spoils crops and makes thousands homeless. Nor are compensations and punitive damages exacted from the state for subjecting an individual to taxes and transfers for the benefit of other individuals favored by the majority of voters.

In a broad sense, parts 2 and 4 approach this theme from various angles, and part 1 is also relevant to it. One might continue in the same weirdly humorous, but in fact quite enlightening, vein by observing that if it were not for the complete impunity, the two major sources of injustice would perhaps not flow as copiously as they do. Failing retribution, all that is left is attempted redress. Part 2 on redistribution and part 4 on socialism, flanking the central part on justice, adumbrate some aspects of the problem of redressing the doings of Nature, arriving along diverse ways to the conclusion that these attempts are on the whole ill-advised. Part 1 poses the perhaps more radical question of whether there is really any good purpose that makes the state necessary. The received wisdom, of course, is unanimous that the state is needed for the orderly and efficient functioning of society, principally by virtue of the enforcement-dependent nature of promises and contracts. Chapters 1, 2, and particularly 3 seek to refute this, arguing that the underlying reasoning is both facile and confused. Less unanimously, much of received wisdom also holds that the state is a necessary condition of a just society. It is fairly obvious that the answer to this contention must be yes if the no-fault concept of justice is adopted and will overwhelmingly tend to no if the justice of responsibility is taken as the proper concept. On the latter basis, it is intellectually only just possible to consider the state as one of life’s lesser evils, needed to ward off greater ones. More straightforward and robust arguments, though, lead one to its outright rejection.

At the beginning of this introduction, I lamented the persistent misuse of words in political philosophy, the misnaming and misidentification of concepts and the false ideas that are thus produced. The two rival concepts of justice seem more and more to be caught in this type of trap. It is facile and tempting to identify the no-fault concept with distributive justice, with the ordinary, common-and-garden name being reserved for the justice of responsibility. Such a division may make the job of intellectual map-reading easier, but it is the reading of a fairly naïve map, reminiscent of those early navigators used to draw. In fact, “distributive justice” is a pleonasm, for there is no other kind. It is of the essence of all justice that it distributes. Indeed, it does nothing else—and this is not mere verbal cleverness.

All existing distributions of benefits and burdens, rights and obligations, rewards and punishments, and all changes in these distributions are either consistent with the rules of justice, or they violate them. In the latter case, it is for justice to correct the injustice; in the former, it is for it to uphold the just distribution. Two frequently cited fallacies interfere with the understanding of this elementary truth. One is that there can be no distributive justice where nobody distributes, i.e., in a “market” economy. For here, the distribution of incomes (or other exchangeable benefits or burdens) is the wholly unintended, emergent result of countless bilateral transactions determined, in turn, by individual wants and capacities. Such exchanges are neither just nor unjust, nor are their aggregate. Where this reasoning goes astray is in overlooking that individual exchanges either are exercises of liberties (in the use of assets and the deployment of efforts and skills) and of rights—hence the overall distribution they generate is just—or are violations of these liberties and rights—which will make the distribution unjust.

The other popular fallacy is that some overall distributions are “patterned” and others are not, with “patterned” distributions being generated by “distributive” justice and others by common-and-garden variety (or, as it is even more confusingly also called, “entitlements”-based) justice. Once again, however, it is not hard to grasp that every distribution is “patterned” by something unless it is simply random. In a socialist society, the pattern may resemble some egalitarian model, though it is a safe conjecture that the resemblance will not be very convincing. In a capitalist society, the pattern will approximate what economists would predict from the pattern of factor ownership and marginal factor productivities. The capitalist “pattern” would probably differ from the socialist one; it might be more intricate and perhaps also more unequal. Each would differ from the typical hybrid that prevails in most majoritarian democracies, but all these would be equally “patterned” and equally the product of “distributive” justice.

Unsurprisingly, each of the two concepts of justice I seek to delineate and identify in this introduction has logical entailments that go beyond it and affect the way society functions; putting this another way, each concept is consistent with its own type of social surroundings. Opting for the concept that reposes on responsibility and where injustices must be imputable to unjust acts of actual persons has the stark consequence that many claims of persons or groups against one another, and many serious problems of society, are excluded from consideration within the context of justice. They are relegated to its surroundings, not because they are unimportant or invalid questions, but because they do not qualify as questions of justice.

Opting for the opposed concept, where states of affairs can be unjust without any human agency bringing about the departure from the ideal, entails that a society aspiring to be just finds itself locked in perpetual combat with the caprice of chance, blind luck, fate, the Almighty—in short, in combat against what game theory calls moves by Nature. Calamities hit innocent people, and they hit them unequally hard, with those who escape having no moral desert or claim to ending up better off. Perhaps more frustratingly to the believer in no-fault justice, Nature also treats some people better than others in giving them different genes, different abilities, and different characters. Arguably, if there were no differences between them in these respects nor in their upbringing and inherited wealth (differences they cannot be said morally to deserve), they could not expect to have either better or worse lives than any of their fellow humans. It is incumbent upon the just society either to iron out Nature’s uneven work by making every life as good as every other or at least to iron out those differences that do not have, as their by-product, an improvement of the life of the least advantaged. A mutual insurance scheme, a hypothetical social contract to this effect is nothing more than the bells and whistles on the social engine that must perform this work and meet Nature’s every move with the right counter-move.

Theories of justice inspired by the idea that its function is to rectify the way of the world by redistributing the good and bad things that happen to make up people’s lots tend to be intellectually weak and vulnerable to the weapons of logic. For much the same reasons, however, they are emotionally attractive and appealing. They have very nearly swept the board in the latter part of the twentieth century. Chapter 9, dealing with “justice as something else,” alludes to their proliferation.

Anyone who can overlook the intellectual weakness, whether knowingly or by faulty perception, finds a heroic perspective opening before him. Nature keeps shaping our social habitat, and ourselves within it, in an endless series of random moves. How inspiring it is to refuse such randomness, to keep undoing what it keeps doing, putting in the place of the accidental and morally arbitrary an order in which the principles of justice can prevail! Alas, Nature will not learn and will not mend its ways. For all its heroic ambition, this justice cannot prevail. At best, it must settle for a perpetual losing battle, effacing the work of blind chance here and there, but like in all losing battles, transforming the battleground into a depressing, messy, and sorry scene not all will greet as the scene of justice’s courageous rearguard stand. No doubt the defensive struggle of no-fault justice against inequality-generating Nature will affect the distribution of welfare and indeed of all good and bad things. It may even do so massively along a broad front. Much more doubtfully, the distribution thus modified may be more egalitarian than it would otherwise have been. But unless it were hedged with implausible assumptions, a finding that the modified distribution was in fact more just would be a stand-alone, perfectly arbitrary value judgment wholly independent of any theory of justice purporting to underpin it.

Can one work wood against the grain? No doubt one can, but the result is unlikely to repay the pain. Can one make water flow upward? The proper agnostic answer is that we do not know, at least not yet. There have been examples of overcoming gravity, man has learnt to fly, and water may yet be taught to flow uphill. Most probably it will be very costly to make it do so, with much of the cost being temporarily concealed from view and surfacing in unexpected places as time passes. Attempts are continually being made to change the way societies function, to make them more predictable, impervious to chance, less subjected to the force of individual incentives and ambitions, and at least in some ways more like the ideal the no-fault idea of justice has in view. The most serious and ruthless of these attempts have already led to thoroughly shameful catastrophes for the countries concerned and have for the time being been given up. Less radical attempts, claiming to reconcile the exigency of universal welfare provision with tolerance for human nature and self-interest, continue. Some observers believe that these attempts are slowly and insidiously wrecking the societies concerned. The self-healing, self-regulating capacities, the ability to maintain useful conventions, and (let us not over-fastidiously shy away from the word) the “moral fiber” of these societies may be in danger of shriveling away. Time will tell—perhaps it is already telling it.

Collective Choice: Necessity, Convenience, and Legitimacy of the State

Individuals, groups, and classes seek to promote their conflicting interests and their competing ideals of the good life in the good society by whatever means it is prima facie rational for them to employ, given the expected benefits and the costs, material and moral, of securing them. It is natural enough that one of the means employed should be the appeal to justice. In the narrow sense, the appeal is merely a demand for adjudication, in the expectation that the recognized rules applicable to one’s case will be found to be favoring one’s cause. There is, however, a broader and more portentous sense of the appeal to justice. The appeal, in this broad sense, does not stop at claiming that under the rules in force, one’s cause is just. It may, indeed, not try to make this claim at all and ignore the rules altogether. Instead, its appeal reverses the order of the argument altogether. It starts from the premise that one’s cause is just. The rules of justice ought to be such as to bear out the truth of the premise and uphold one’s just cause. Should the actual rules fail to do this, or fail to do it in an incontestable and secure enough manner, they are not proper rules of justice. They contradict the principles of justice and must be reshaped, expanded, and elaborated until the contradiction vanishes.

The ceaseless stream of attempts to shape, reshape, and bend justice and transform it into a servant of one’s cause is the stuff of politics. Its effect is felt in both legislation and the execution of policies. Its instrument is collective choice (whether in its currently ascendant form of majority rule or in any other form that secures the submission of all to the choice of some). Opposed to the force of politics is the force of convention. Conventions emerge without any conscious choice on anyone’s part and entail no rule of submission of minority to majority, losing coalition to winning coalition. To the extent that they are enforcement-dependent, their enforcement tends to be provided by secondary, “satellite” conventions. Obviously, we are dealing here with a notion that is far broader than the strict definition of a convention as a self-enforcing, nonconflictual coordination solution, or social norm. Important primary conventions, notably those against torts, used to be backed by secondary conventions, for example the ostracism of serious offenders against the primary convention.

These convention-enforcing conventions have lost much of their vitality as their functions have been often forcibly taken over by more formalized law enforcement by government in order to consolidate the state’s monopoly of administering justice.

The basic conventions themselves, however, have very deep roots in prehistory and seem to be largely intact: their influence can be detected in the remarkable uniformity, across ages and cultures, of what most men consider acceptable conduct in their dealings with each other. It is also reflected in the broadly common understanding in most societies of what are freedoms and what are violations of rights. If people had orderly minds, never holding mutually inconsistent opinions and never being swayed by the direct day-to-day interests that proximity makes loom large, such common understanding would entail that there was only one concept of justice. Although this is only too obviously not the case, it is the case that without the foundations provided by conventions, the concept of justice would be too indeterminate to merit much attention. It would be a hollow form, capable of being filled with any content, depending on changing majorities, passing interests, and the fashions of the intellectual demimonde.

The surroundings of justice are largely dominated by two extraordinarily pervasive, and mostly opposing, forces: convention and collective choice. The former emerges spontaneously and is not embodied in any specialized institution, whereas the latter is, at least putatively, the deliberate product of a rule providing for nonunanimous rule making and is typically embodied in the state. Convention furnishes the stuffing for the justice of responsibility, whose firm but hollow forms would lack content without it. Collective choice, which imposes acquiescence by virtue of its rule of submission, is the instrument of no-fault justice. It is meant to settle the score between those who receive Nature’s gifts and those who suffer from its indifference, let alone from its cruel blows. Collective choice is indispensable for evening out the inequalities that keep springing up irrepressibly from these “naturally” ordained (and perhaps also from other) causes. It would be fanciful to try and fight the battle against inequality under conditions of universal and voluntary cooperation, for on that basis the fortunate would not be willing to fight against their good fortune. A prior and irrevocable commitment to fight would be required from everyone, and such a commitment would be doubly unfeasible. It might well not be given by at least some self-interested persons who had already had some good fortune and were ahead of the game. And it might well be revoked if it were voluntary, for any self-interested person could refuse to live up to his commitment if, subsequent to making it, Nature started to favor him and he would have to fight against his own good fortune. A scheme of cooperation to combat chance, then, could not remain voluntary but would require an enforcer. The no-fault ideal, in other words, entails that a state possessing the monopoly of rule-enforcement is a necessary condition of such justice. If this justice is legitimate, the state is also legitimate.

Which of two different sets of principles of justice is really “just” is a question that, once stripped of rhetoric and ambiguity, is one of ethics. By contrast, whether the state is necessary for the very existence of a society (in the ordinary meaning of that term) is, on the face of it, an empirical question. I say “on the face of it” because it is not always evident which is the particular piece of empirical evidence that really answers the empirical question. Chapter 5, no doubt the most readable in this book, alludes to this problem. If all countries are states, does this constitute empirical evidence that countries must be states? The relevance of empirical evidence needs to be assessed in the light of the theory or theories that offer some explanation of why some observed fact should be held to support, or alternatively to falsify, a generalization. The role played here by an explanatory theory can be well illustrated by the way game theory is used to clarify the theory of the state. Such an attempt is made in chapter 3. If society is defined as requiring for its existence widespread reliance on reciprocal promises, i.e., contracts, and if contract has the incentive structure of a prisoners’ dilemma, then society cannot exist because contracts would not be fulfilled. Default is rational and performance irrational for each individual. Performance would be rational for the players taken together, if there were such a thing as two parties “taken together.” The problem of a collective entity, its “mind” and its “choice,” is posed here and is further pursued in chapters 3 and 4. Individually irrational choice must be suppressed by collective choice. The state is necessary for society’s survival.

Whether this formally correct deduction is derived from valid premises, i.e., whether it in effect is true, can be resolved empirically by investigating whether the proposition “contract is a prisoners’ dilemma” is a descriptive statement of sufficiently high probability. Its probability falls drastically if there is enough evidence that performance is more and default less advantageous to each party than would appear from the face values shown in the contract. This, in turn, would be so if many or most single contracts were loosely but perceptibly tied together in a web of other contracts, present and prospective, between the same parties as well as others who are actual or potential partners of these parties. Any single contract acts as a link in a chain of contracts stretching into an uncertain future—a future, however, that will be shaped by the successive actions and reactions of the parties themselves. The rational individual seeks to maximize the present value of his gains over the whole chain. By performing as he promised in a given contract, he can expect to prolong the chain, make it sprout branches, and increase the probability that the prospective future contracts will in fact be concluded and the gains he would reap from them will in fact be realized; for by performing as he promised, he shows himself to be an acceptable contract partner. By defaulting, he would expect to produce the opposite effect, namely to shorten the chain and lose opportunities for profitable contracts. An individual contract party, by performing first, is signaling to the second performer that he is bent on “prolonging the chain” and proposes to go on performing unless stopped by the other party’s default. Default, then, is no longer the dominant strategy for the latter. Contract without a contract-enforcer to whom the parties are subjected becomes credible, and all forms of social cooperation become feasible if contracts are credible. The state, then, is not necessary, whatever else it may be.

Necessity and convenience are seldom properly distinguished from one another in political theory. To say that the state is necessary for maintaining public order or reducing transactions costs, usually means that the speaker thinks it can do so more conveniently, at a lesser cost all told, than decentralized private arrangements relying on conventions could do. While something is either necessary or it is not, it may yet be convenient to some degree. Thus, the “needless state” may be convenient for some purposes for some people and not for everyone and every purpose. A case where a state is more convenient for some but less convenient for others than a stateless, ordered anarchy is, in technical jargon, a pair of Pareto-noncomparable alternatives. Objectively, there is no telling which is better. The legitimacy of sovereign authority in this case cannot be founded either on necessity or on convenience.

Redistribution: Inherent in Choosing Collectively

On examination, redistribution turns out to be the standard case, where collective choices are made by some and imposed on others, the submission of the latter being enforced by the state, which is controlled by the former. Here, the state is an instrument, not of contract enforcement to overcome the purported dominance of default over performance, but rather of the division of society into gainers and losers, free riders, and suckers by the use of taxation and the targeting of the production of unpriced, “public” goods and services to the greater benefit of some parts of society than of others. Chapter 2, discussing how taxation and the provision of “public” goods creates suckers and free riders, is placed in part 1, dealing as it does with what is the essential activity of the state. However, it already points to the intrinsic nature of redistribution, the subject of part 2. The two are hardly distinct, for neither is really conceivable without the other. The state is intrinsically redistributive. It has obvious reasons for this, but even if it did not, it would be hard to see how it could possibly contrive not to redistribute in the course of taking resources from members of society selected one way and returning goods and services to members of society selected in other ways. Whether the asymmetry is deliberate or not, redistribution occurs.

One can maintain that in this role, the state, though not necessary for social survival and not a convenience in the Pareto-superior sense that everyone would rather have it than not, is still a convenience, for without it, contested collective choices, designed to favor the winners, might be resisted by the losers. If we take it that redistribution is an ineluctable fact of social life, with stronger coalitions repeatedly exploiting weaker ones, it may be convenient to have a choice mechanism, a rule of submission enforced by the state, which ensures that the losers will submit to their fate without attempting resistance that would be futile but nevertheless require the costly use of violence by both sides before it was overcome. What the state does here might very well not be a Pareto-improvement, and we cannot really tell whether it serves the no-fault and egalitarian ideal of justice. But it does seem to be efficient in the rather simple sense that to arrive at a given result peacefully is better than arriving at it over the dead body of the losing party.

Where this argument assumes a little too much is in taking it that a given redistributive event, be it a taking, extortion, or taxation, will happen anyway, regardless of the means required to bring it about. This is mistaken reasoning, which fails to grasp the difference between a society with a rule of submission and one without. The incentive to take, extort, or tax must normally vary inversely with the probability of resistance and the cost the weaker coalition can thus impose on the stronger one, notwithstanding that by doing so it imposes a cost on itself, too. These are deep waters, and this is not the place for exploring their depths, though the moral monster they harbor can be glimpsed without much further search.

Redistribution, as its name betrays, cannot be understood without reference to some distribution that would have prevailed had it not been for some redistributive collective choice. The distribution that can serve as the reference is one on which collective choice has not impinged and that is consistent with broad compliance with conventions against torts. It is one brought about, at least ideally, by the sole exercise of individual freedoms and rights. These exercises take the form of the original appropriation of unowned property, of voluntary exchanges of goods and services produced, and the accumulation of property that results when producers abstain from consumption. This description is laborious and also inaccurate, but not markedly so. It points straight at the state of affairs that would obtain if no person involved in this distribution committed an injustice without its being redressed. By the argument of chapter 10, it is the distribution where each gets his own, the one that the individualist, responsibility-based justice requires. By the same argument, redistribution is unjust. If it is to be defended, the defense must stand on some ground other than that of justice.

The chapters in part 2 consider some such grounds. Two may merit mention in this introduction. One is the desirability of providing social insurance, protection against ill health, unemployment, disability, and old age, and doing so on a compulsory basis, covering both those who wish to be so insured and those who do not; given the cost they have to bear. The effect is redistributive, both for this subjective reason and for the objective one that some people are made to pay higher premiums than actuarially required and others lower ones. Despite some obvious perverse effects, the argument against this scheme is not simple and probably not conclusive, but it may help to see a little more clearly what is going on within compulsory insurance. The other ground, peculiar to the mature welfare state, is that a redistributive pattern, if it is time-honored, generates stable expectations of benefits that the beneficiaries come to regard as acquired “rights.” What might justify continuing redistribution under these circumstances is the moral problem and the practical difficulty of discontinuing it. Chapter 8 sketches a conceivable way out that may look somewhat opportunistic or even cynical, but that at least lays bare what is perhaps the most awkward side of the problem.

Socialism: An Agent Without a Principal, a Market in Unowned Goods

Several institutions vie for the role of the Achilles heel of socialism. Ownership seems to be where socialism is most vulnerable, where the ties that some socialists, though not the classical, “scientific” ones, claim unite their doctrine to justice are the most frayed. The essence of ownership is exclusion; the owner, relying on the force of the ancient social conventions against torts, on some specialized enforcer such as the state, or on both, excludes all from the enjoyment of the good he owns, except those who obtain from him, by purchase, gift, or lease, some right of access to it. The right of the purchaser obliges the owner either to transfer to him the ownership as a whole or to allow him the use of some part or aspect of it, retaining the residuary ownership. Socialism denies that any person has the liberty to exclude another from the enjoyment of a particular good. For practical purposes, an exception is made of goods belonging to an (undefined) “private sphere.” As a socialist writer on justice put it, let everybody own his toothbrush. The exception may be extended to all personal chattels, or indeed to every good that cannot directly serve as an input for the production of other goods. However far these exceptions, made in various versions of socialist theory, may extend, they remain exceptions; the general rule is nonexclusion. All good things, according to the general rule, are owned by everybody in common.

All distributions of a finite quantity of goods, just or unjust, are impossible without exclusion of some kind that rations access. The control of access may be chaotic and produce a random, unpredictable distribution, such as when a herd of hungry pigs throw themselves at a heap of maize, with some trampling down and jostling aside the others, some getting their fill and others hardly a grain. Or else it may be systematic, with orderly queuing and predetermined, if not necessarily equal, rations. Scarcity, nonexclusion, and distribution, however, are an incompatible threesome. No sooner does it abolish exclusion in the form of decentralized, personal ownership than socialism must reestablish it in some other configuration. Only in conditions of abundance, where distribution ceases to require constraint, could nonexclusion, i.e., the abolition of any form of property ownership, be achieved.

By expropriating at least the “means of production” and vesting their ownership in the state, socialism seeks, with a certain amount of tentative groping and fumbling, to accomplish two objectives. One is, broadly speaking, to assure the primacy of politics. This means a collectively chosen allocation of capital resources to various productive uses and a collectively chosen distribution of the product; the collectively chosen pattern replacing the pattern that would emerge from the interplay of voluntary exchanges under private ownership. As one socialist writer put it, the forum decides, not the market. (It is interesting to note that socialists tend to speak of the “market” as if it were a person, and a rather difficult if not downright dangerous character at that, inclined to malignant deeds. They make accusations against the “market” that they would never make against the “set of voluntary exchanges,” overlooking that these two are synonyms of each other.)

A by-product of the change of ownership is that political and economic power are merged into one, vastly increasing the field over which collective choice holds sway. Many, though not all, socialists consider this, and the corollary shrinkage of the residual field left over for individual choices, as part of the objective to be accomplished.

The second, and probably less important, socialist objective is to reconcile these arrangements with the conception of justice closest to the main socialist tenets. This conception is not very well defined, in part because justice is not the primary interest of socialism. However, it never quite abandons the claim, and usually makes it quite strongly, that a socialist society is also a just society, with justice lending socialism added legitimacy, on top of the legitimacy it claims on other grounds (such as the laws of historical development and of rationality of social design). Socialism is in a delicate position with regard to exploitation and the opportunity of claiming credit for ending it; for while it can safely argue that it has stopped surplus value created by the workers being expropriated by the capitalists, it cannot easily argue that it has returned it to the workers to whom it in justice belongs. It is by emphasizing its respect for all human beings and its general humanitarian agenda that socialism makes its main claim of being a just doctrine or, more ambitiously, the doctrine of justice.

Having saddled itself with the functions of ownership, the socialist state at this point runs into one of its most unpleasant “internal contradictions.” Relying as it does for allocation and distribution on a command system, it finds itself obliged to combat and if possible to suppress the ordinary incentives that induce people to evade and disobey its commands. These are the very incentives that drive a system of voluntary exchanges and generate allocations and distributions by letting everyone do the best they can for themselves. Relying willy-nilly on commands instead and finding that these are incentive-antagonistic, often positively inviting disobedience, cheating, and corrupt practices, the state must back up its planned-economy command system with a very powerful and intrusive enforcement mechanism. Plainly the harsher and more feared the enforcement, the greater the chance that commands will not be ignored or met by simulated obedience, but also the greater the contrast between it and the humanitarian face socialism wishes to wear.

In practice, despite temporary lurches into tightening followed by headlong rushes of relaxation, “real, existing” socialism tended over time toward ever weaker enforcement of ever more futile commands, until the spreading habits of sloth, theft, fraud, shirking, and pointless waste left it poised at the edge of the absurd. However, the discussion of the agency problem in chapter 13 suggests that even the best and most ruthlessly applied enforcement would have been impotent in the face of another fundamental systemic “contradiction” that must forever condemn socialism to inefficiency. In what is fondly called “social ownership,” the state assumes the owner’s functions in its rather poorly defined capacity of agent. It is the agent of the working class, of society, of the people, or—more disarmingly still—of historical evolution. In the capitalist system, except in the borderline case of the sole owner who is his own manager, there is a ubiquitous principal-agent problem that increases with, among other things, the remoteness and the security of tenure of the agents. Arguably, the principal-agent problem should grow to colossal dimensions under social ownership. However, the chapter in question makes the case that the problem is in fact more awesome still, because socialism effectively removes the principal from the principal-agent relation. The agent can behave as a loose cannon, a headless chicken, or a monomaniac, and all pretence to efficiency becomes a bitter joke.

Efficiency, of course, is merely one of many possible values (and only an instrumental one at that). There is no reason why it should be maximized if people are content to trade off some of it in exchange for other values. Socialism, however, lays itself bare to severe attack when it claims that there is no need to accept such trade-offs, for its system of social ownership enables efficiency to be maximized without sacrificing other values. Once experience had made this pretension untenable, there was a relatively brief flare-up of a modified doctrine that called itself market socialism. Its aspiration was to devise a system that preserved some kind of “social ownership,” but made it incentive-compatible so that it would deliver efficiency like the capitalist “market” without becoming capitalistic. Chapter 14 reviews a work that sets out this aspiration. In its own right, it does not warrant attention. However, the market-socialist dream is for obvious reasons a sweet one, and it is predictable that one day soon small bands of academics and larger bands of political militants will start dreaming it again. Since the chapter is aimed not only at the book it reviews, but at some of the intrinsic features of the underlying dream that is liable to be dreamt again, it has been included in this collection. Any imaginable version of market socialism that may be proposed in the future must, to command a modicum of respect, clarify what it means by “social ownership.” How does it propose to have a self-equilibrating market for consumer goods while abolishing the market in the “means of production” by abolishing their multiple ownership, and why anyone would bother to own or rent them? In addition, it must explain how it intends to secure equality of opportunity without continually sweeping away inequalities of outcomes that would arise in its system—for the opportunities within a person’s reach are what they are today mostly because the outcomes he has reached yesterday were what they were.

Freedoms, Rights, and the Freedom to Trade Them

The last part of the book is devoted to some aspects of the idea of freedom. Trying to apply the maxim that each thing is what it is and not something else, there is some insistence that economic efficiency is not moral rectitude, that wealth is not liberty, and that liberties are different from rights—and that these differences have consequences which we ignore at the peril of getting mired in muddled thought. Beyond questions of clarity, however, there are others bearing on differences of conception, notably as regards the relation of liberty to justice.

If it is accepted that there is a presumption of liberty that, like certain other presumptions, can be derived mainly from epistemological considerations rather than from the intrinsic requirements of justice itself, a certain conception of liberty is discovered as a corollary. Every feasible act is deemed to be free unless a sufficient reason speaks against it. Justice has the main, if not the sole, say in deciding what are sufficient reasons. In this role, it is guided by conventions. Freedoms under this conception are a residual; they are what remains of the feasible set after unfreedoms have been identified as such by confronting them with the rules of justice and “blotted out” as inadmissible. Not all infringements of freedoms are ipso facto unjust; some, indeed perhaps the most, are really externalities reflecting facts of life. Because not all exercises of freedoms by different persons are perfectly compatible, some externalities are, so to speak, nobody’s fault, and calls for their elimination are not calls of justice but of civility, mutual convenience, or norms of good taste. Conversely, infringements of freedoms by acts that are wrongful are unjust, not because they infringe a freedom, but because they violate some strong convention, most likely one against some tort. It is not that we have a “right” to freedom; it is that they (and we) have no “right” to commit wrong acts.

Opposed to this conception of liberty, which one might call “residual” if the word were a little less uninspiring and lacking in noble overtones, is one where instead of unfreedoms, it is freedoms that are specified. They add up to an itemized list that usually includes the freedom of worship, speech, and thought; the freedom to participate in collective choices; the freedom from arbitrary arrest and political and economic intimidation; as well as some vaguer “freedoms from,” such as the freedom from want. Occasionally, they are called “rights” or “rights to freedoms,” and are inventoried in bills of rights. Acts and types of acts not included in the itemized list have an uncertain status. Perhaps they are lesser freedoms. One authority, for instance, relegates what he calls “economic freedoms” explicitly to this lesser category. That, at least, is a recognition of their place, however lowly, in the inventory of freedoms. Perhaps acts not listed nor otherwise ranked are not freedoms at all. The suggestion is merely implicit and probably unintended, but the omission is characteristic. An itemized list of what we must be free to do will inevitably leave the major part of the universe of our feasible acts to an unspecified fate. Perhaps we will find that we are free to perform them, and perhaps we will not. One popular theory whose treatment of liberty falls within this conception affirms that liberty is actually an integral part of justice; it is nothing less than the first of its two principles. Liberty in fact means a system of “basic” liberties figuring on the itemized list. This system must be maximized for each individual, subject to the constraint that it must also be equalized as between individuals. Every application of this first principle, down to the least important, ranks ahead of every application of the second principle, up to the most important. Justice allows no trade-off between liberties and other values, no matter how little of one can be traded in exchange for how much of the other. Only a lesser liberty may be traded off against a greater one.

The principle and the instruction relating to permissible trade-offs reveal two points of great interest. The first one tells us that there is a hierarchy within the list of freedoms, since it speaks of lesser and greater ones. In the literature, this hierarchy is often illustrated by comparing the freedom of speech, a great freedom, with that of the choice between different flavors of ice cream, a superfluous frivolity. Now someone, paraphrasing a justly famous eighteenth-century author on moral sentiments, may say that man is seldom so innocently employed as when he is choosing between flavors of ice cream, whereas the same cannot be said of him when he uses his freedom of speech. But the heart of the matter is that it is nobody’s business to say which freedom is greater and which lesser, nor to say that the suppression of one would be less objectionable than that of the other. The establishment of a hierarchy implies that it was established by somebody. But why was he entitled to do it and do it with an authority that bound everyone else to obey the hierarchy? One should have thought that it was up to each individual how he valued free speech and the free choice of ice cream, but the theory teaches that this is not so.

The second revelation flows from the first, but it goes further. It turns out that certain trades, notably those of “greater” for “lesser” liberties and of liberties for other things, violate the principles of justice, one of which enthrones liberty. Thus, freedom and free trade are incompatible.

A version of this thesis has been formulated in a rigorous form in a well-known “impossibility” theorem showing that under certain assumptions even minimal liberty is inconsistent with the freedom to exchange whatever one values less for whatever one values more. Minimum freedom is taken to mean that each individual is sovereign over the choice of at least one pair of free acts that are harmless to others.

He can, for instance, alone decide whether he will sleep on his back or on his belly. He would prefer to sleep on his belly, but if someone else were perversely willing to offer a pot of gold to make him sleep on his back, he would like even better to take the pot of gold. If he took the gold, he will have traded off his freedom, and if he refused it, he would have stopped both the other individual and himself from ascending to a more preferred position where he has the gold and the other fellow gets his way. The whys and wherefores of the issue are treated at some length in chapter 16.

Under “minimum liberty,” the would-be sleeper is said to have at least the mastery over how to sleep. “How to sleep” is a proxy for all the freedoms that together constitute what is rather confusingly called the “private sphere” of an individual. I say confusingly, for what line, what moral, conventional, or legal border separates his freedoms that are “private” from those that are not? And if those in the private sphere have a special status and must not be violated if liberty is to prevail, what of those that fall outside the private sphere? May they be violated? The idea of two spheres, where the private one conjures up the sleeping on one’s belly and the owning of one’s toothbrush, is a source of muddle, mischief, or both. However, let that pass for the moment and continue talking of the freedom of choosing how to sleep, while bearing in mind that the words stand for a larger but undefined subset of the set of all freedoms.

If retaining your mastery over how you will sleep means that at least a minimal liberty is safeguarded (and selling your mastery means that it is forsaken), it becomes trivially true that minimal liberty and “Pareto-improvement” (where at least one party is made better off and no one is made worse off) cannot both be realized if the preferences of the parties are what the story says they are (which they could very well be). This is no more astonishing than to say that two mutually exclusive alternatives exclude each other. Going beyond the triviality, one must ask why safeguarding liberty entails refusing the pot of gold?

The would-be sleeper in the story has not one freedom, but two. One is to sleep on his belly or on his back. The other is to sell or not to sell to someone else his freedom to choose how to sleep. “To sell a freedom” is colloquial language for an operation where the would-be sleeper, in exchange for the pot of gold, assumes an obligation to sleep as he is told and at the same time creates a right for another to tell him how to sleep, i.e., to fulfill the obligation. A freedom is the relation of one person and one act. A right/obligation is the relation of two (or more) persons and one act. The transformation of a freedom into an obligation for oneself and a right for another is itself a freedom. In plain English, it is called the freedom of contract.

Equating a state of at least minimal liberty with a state where no individual may take a pot of gold for one of the freedoms in his “private sphere” is tantamount to subordinating the freedom of contract to any of the freedoms that fall within this sphere—a sphere, we must remember, that has no agreed or ascertainable bounds. There is no good reason why this equation should be taken as read. There is a strong reason for rejecting it, not merely as arbitrary, but as antiliberal, inimical to freedom. It purports, in the name of freedom, not only to impose a ranking among freedoms, permitting trade-offs only between lesser and greater ones, but actually to mandate a particular trade-off. If the liberty condition is not to be violated, the freedom of contract must be given up. The option of a general trade-off (any freedom against any other if they are mutually exclusive) is first replaced by a one-way option (lesser freedoms may be given up for greater ones) and then abolished altogether (the lesser freedom, that of trading, must not be exercised).

This is on the whole a harmless, albeit outlandish, pretension. As it and vaguely similar pretensions about what it takes to secure liberty trickle down to the intellectually less demanding regions of student essays and political programs, they become fuel and fodder for rhetoric against the tyranny of “the market,” against which “society” must defend liberty and justice. “Society,” due to the very nature of “its” choices, has at the best of times trouble enough in deciding which way is up. It is a poor outlook when those who make it their business to know better keep telling it that up is down and down is up.