OPR VIII, Sec. 24, Private Property and the Redistributive State

I apologize for my tardiness. I have fallen behind in my readings, but I was also ill this week and am only today rising (from bed). I expect there will be a number of corrections to be made in what I say. [Lesser points and asides are often bracketed.]

Sects 24 and 25 are likely to be as controversial as the others in this chapter. In 24, “Private Property and the Redistributive State”, Jerry defends a three basic propositions:

– Private property rights are justified in Jerry’s theory at a relatively early stage, and this constrains what is to follow.

– Socialism will not figure in the eligible set.

– A variety of redistributive frameworks will also be rejected.

I’ll start with the first (subsect. 24.1). Jerry starts by reminding us that in 18.3 he established private property when considering public justification in conditions of evaluative diversity. There, following a suggestion of an early John Gray, Jerry argues that a jurisdictional conception of private property rights are what “deeply pluralistic social order[s]” need to handle their disagreements. A jurisdictional conception of private property rights understands property as “a sphere in which one’s evaluative standards have great authority for others” (374). [Small point: The name of this account, used by Eric Mack in his interesting account of rights, can mislead if one comes to think that the authority of the property owner rivals the state’s jurisdictional rights. If one wanders onto the land of the US federal government, that is, the land it owns, then one is subject to its authority (in the sense above). But even on one’s own land in the US one is subject to the jurisdictional authority of American government (at different levels), or so the latter claim. US law is supposed to determine what counts as ownership, etc. The state’s authority is jurisdictional in a more elementary sense, I think, than the Mack-Gaus one.]

Jerry grants that property rights depend more on the state than other rights. “… the right to private property must be interpreted and developed, but to a far greater extent than other abstract rights, is definition depends on the state” (509). This is largely true, though Jerry could have used a less misleading word than ‘definition’. And it is always worth remembering that there was a great deal of property prior to the rise of modern states. [The political conditions of medieval life typically defy being categorized as either “states” or “states of nature”.] Again, on the next page: “Thus, far more than other basic rights, the political order determines our rights of property.”

Jerry argues rightly, I think, against the Murphy-Nagel view of property as completely conventional. They view is similar to Hobbes’ view of all rights, and he draws the conclusion they draw, that the state does not violate its subjects’ property rights when it redefines them or imposes taxes. Jerry attributes to Murphy and Nagel a view of the conventionality of property rights which I’m not sure they have: “they are purely conventional in the sense that any convention will do as well as any other.” This would be an odd view of conventional rights, which comes to mind quickly for game theorists. [Property could be conventional, but the conventions could be prior to and independent of the state in question – think of early common law. Hume understood this and provides an interesting analysis of how it could happen.]

Jerry concludes, “Once property rights have been justified, they form the background for further justification…”

In 242, Jerry argues that socialist systems will not be in the eligible set for choice. This claim is likely to shock contemporary academic ears, even if the number of genuine socialists is small. Jerry immediately notes Rawls’ condemnation of classical liberalism or the system of natural liberty, to use Smith’s term, as well as welfare state capitalism (in the Restatement). He mounts an argument against this which does not make use of the strong claim he discussed in the preceding section. Jerry thinks that if Members of the Public know enough about the effects of private property and of its absence that will settle the case against socialism. He argues, citing much evidence, that “There is compelling evidence that extensive private ownership – including capital goods and finance – is for all practical purposes a requisite for a social and political order that protects civil liberties… There has never been a political order characterized by deep respect for personal freedom that was not based on a marker order with widespread private ownership in the means of production” (513-4). There follows several pages of data and references to suppose this claim.

I think this is correct, and I too am a little shocked at Rawls’ views here. It’s not clear that our political rights are endangered, as Rawls thinks, by the inequalities found in property systems, at least if one looks at the systemic evidence. One is not surprised that someone who does not accord much if any priority to rights of the person and civil rights defends socialism. Much less stands in the way. But with the priority of these rights established, it is much harder to see socialism emerging, at least without engaging in utopian thinking (in a moderately disreputable sort). Of course, if one also thinks of private property rights as having a priority, then the case against socialism is strengthened.

24.1 makes the case against redistributive or “social justice” schemes. This may shock more than the preceding argument. Members of the Public who are classically liberal will oppose redistributive schemes. He makes reference to 17.5 which considered questions of stability and ruled against principles of social justice. He does not want to make much of this argument. Given that questions about justification of property and redistributive effects are not separate, classical liberals cannot insist that redistributive states are unreasonable. So Jerry returns to his argument earlier against especially coercive social arrangements. “… highly redistributive states and states with very high levels of taxation are more coercive than less redistributive states.”

The argument that follows in the next pages seems to me less well organized than it might be. It would be helpful to have a better understanding of what coercion is (and how it differs from force, another threat to liberty). The notion of coercion has been the subject of a lot of work, and there remain disagreements as to how best to understand it. So it is hard to deploy here. But I worried more about another aspect of Jerry’s case. As a state becomes more redistributive and increases the taxation burden on its subjects, there will be greater non-compliance (523). In many countries we know well we expect this. But consider societies that are more just and have people who act readily as they are supposed to.

Let me distinguish between two models of justification. The first is the Basic Principle of Justification (14.1). On this model a particular norm is “an authoritative requirement of social morality” only if agents internalize it and “generally conform to it”. The second is the same but strengthens the last condition: the norm “is one that all have sufficient reasons to internalize and follow” (both quotations on p. 263).

Suppose we have a society where agents satisfy the conditions of the second conception of justification. A norm requiring considerable sacrifice is justified and the members of this society, being persuaded of this, internalize and follow it. Taxes go up, but there is little need of sanctioning given the level of acceptance of the norm and the corresponding level of compliance. On the first model, however, there may be more non-compliance as agents only “generally conform to” norms like this one.

A critic of Jerry’s argument would try to argue that genuinely moral or just agents would not cease to comply with justified norms given a rise of the burdens they imposed. Another Jerry, our late friend G.A. Cohen, would presumably argue this way. But so might some of the revisionists on rationality who were tossed out in the earlier discussions of rationality.

I’m not saying that Jerry’s argument is wrong. I in fact think it is roughly right. But there are assumptions about rationality that are doing a lot of work and that he will be called on. (It is also misleading to argue that, say, “The criminal law seeks to make options ineligible” by the threat of sanctions. Yes, but it seeks to do much more, namely to affirm or to re-affirm the wrongness of the conduct under question. There are questions about authority here about which more needs to be said, esp. in sense 22.3c, but I’ve blabbed on long enough.)

One last point, and this may be my most interesting comment. I think many will reproach Jerry for not considering projects of redistribution that are meant to be insurance schemes. It may be stretching the point – to say the least – to claim that many of our familiar social protection plans, like US Social Security or Medicare, are essentially insurance plans. But redistributive schemes which are genuine forms of insurance, albeit non-voluntary, could be devised. These plans would be what I have elsewhere called “cooperative” forms of redistribution. Like normal insurance, everyone is ex ante better off with such a plan, even if they are not ex post better off (e.g., they paid a lot of taxes and did not draw many benefits). It’s not clear on the face of it that these forms of redistribution would fail the justification test. I don’t think our social institutions are capable of devising such plans, but that is another story. In principle it’s not clear Jerry can rule them out. He may not want to call them redistributive, and this will entail a long, boring discussion about how to understand the concept. (I once thought it could be characterized quite simply but now am sceptical.) I agree with Jerry’s insistence that we take heed of how current proposals and schemes work, and that this should guide our deliberations.

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3 Responses to OPR VIII, Sec. 24, Private Property and the Redistributive State

  1. Thanks for your post, Christopher. I agree that this section should be controversial, and that the argument in section 24.3 is not entirely clear in its structure. I would like to explore the issue of how the greater coerciveness of redistributive proposals introduces a classically liberal “tilt” into public justification. More specifically, I want to know what this tilt consists in. The answer, I think, is that the optimal eligible set includes more regimes of property rights / economic policies to the right than it does to the left. But I don’t see that there is any tilt towards the right within this set, and I think there is still a substantial range of possibilities within this set. Gaus may not mean to claim otherwise, but some of his comments on 526 seem to me to overstate his conclusion by suggesting that there is a “within-set” tilt. At least, that’s what I’m going to argue.

    Socialism is excluded from the “optimal eligible set” by the criterion of optimality, I take it; socialism might not necessarily be worse than no system of property rights at all, but members of the idealized Public agree that it is worse than some other option that is in the eligible set, e.g. welfare-state capitalism, because any realistic form of socialism allegedly threatens civil and political liberties (leaving aside whatever intrinsic threat to individual freedom socialism poses in a pluralistic society). The great importance of protecting civil and political liberties still leaves a lot of room for variation in policies regarding taxation, regulation, and, public spending, including even perhaps public ownership of some parts of the economy. The optimal eligible set does not include socialism, but it includes systems of property, taxation, etc. from the Right, Middle, and (responsible?) Left, I take it. The only asymmetry between the positions of Jack (who finds the enforcement of property rights without provision for the poor highly coercive) and the position of Larry the libertarian (who thinks high tax rates highly coercive) arises from the fact that property systems from the (far?) right still secure meaningful civil and political liberty, while those from the far left do not. If true, this claim about the relationship between property rights and civil liberty secures the boundaries of the optimal eligible set; it does not saying anything about democratic choice from within this set, and it does not suggest that there are only a few systems in this set.

    So I find Jerry’s concluding claim to be overstated:

    A liberalism based on a commitment to public justification – a justificatory liberalism – leads not to socialism, or a thoroughgoing egalitarian liberalism, or to libertarianism, but to the more nuanced approach to legislation we find in the fifth book of Mill’s Principles, allowing that there are a number of tasks that government justifiably performs, but having a strong overall inclination toward less rather than more “authoritative” (i.e., coercive) government.

    I am quibbling with the “strong overall inclination” language. At least so long as we are operating with a non-incremental version of the principle of public justification, the only requirements for inclusion in the OES are that a proposal be better than nothing (so that it passes the eligibility test), and that it not be agreed by all to be worse than some other element in the set (so that it does not fail the optimality test). Coercive proposals must be conclusively justified as against no common rule at all, but more coercive policies need not be conclusively justified as against less coercive policies; they simply need to be conclusively better than nothing at all (and not conclusively worse than some other proposal in the OES). From within the OES, we are each free to vote and advocate for whatever proposal we each think best.

    One way to get a more powerfully libertarian tilt would be to adopt an incremental version of the public justifiability principle. Such a move would raise the worry about the libertarian dictator Jerry mentions earlier, however.

    Another way to get a more libertarian tilt would be to require disaggregation of issues. However, on 522-23 Jerry uses his “justificatory dependency” criterion (495) to argue for aggregation wherever some member of the public can’t express a preference on one issue (e.g. private property) without knowing what other policies are in place (e.g. provision for the poor). That criterion is highly holistic, despite what Jerry says elsewhere against holism. And in this context, holism means (i) a non-coercive default that approaches the state of nature, and (ii) an ever larger OES, as the level of aggregation increases (since many different packages of policies, some highly coercive, will be better than not having any common rule in any of these areas of policy).

  2. Sorry to be so slow replying. (Famous Jack Benny joke: Thug: “Look, bud, I said ‘Your money or your life’.” [long pause] Thug:[repeating] “Look, bud, I said ‘Your money or your life’.” [long pause] Jack Benny: “I’m thinking it over.”)

    I think I don’t know what to think. I’m still inclined to think there’s a cl. liberal tilt, but the considerations Andrew cites in the last three paragraphs make me pause. The problem is that I am still not confident I understand the public reason framework (in part because I’ve read V and VI only once).

    So I’ll keep thinking a while longer.

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