Are Rawls and Hayek compatible?

No way. That would be the answer to such question at first glance –and as you will see, that will be my final answer too. Nevertheless, Jinzhou Ye, a kind reader of my blog, has written to me and rightly pointed out that Hayek seems to have thought that his ideas weren’t so radically different from Rawls’s.

In the preface to the second volume of Law, Legislation and Liberty Hayek wrote that his differences with Rawls

 “seemed more verbal than substantial. Though the first impression of readers may be different, Rawls’s statement which I quote later in this volume (p. 100) seems to me to show that we agree on what is to me the essential point. Indeed, as I indicate in a note to that passage, it appears to me that Rawls has been widely misunderstood on this central issue”

Then in p. 100 Hayek writes that the problem of justice is relevant not only as the basis of the rules that judges apply but also for the “deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book. The fact which I regret and regard as confusing is merely that in this connection he employs the term ‘social justice’. But I have no basic quarrel with an author who, before he proceeds to that problem, acknowledges that the task of selecting specific systems or distributions of desired things as just must be ‘ abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer. Rather, the principles of justice define the crucial constraints which institutions and joint activities must satisfy if persons engaging in them are to have no complaints against them. If these constraints are satisfied, the resulting distribution, whatever it is, may be accepted as just (or at least not unjust)’. This is more or less what I have been trying to argue in this chapter.”[1]

Though I admire him greatly, I think that here Hayek deluded himself. He wanted to hear a faint echo of his own ideas in Rawls’ book, and he overlooked the crucial differences.

An apparent agreement

Hayek wrote that the notion of social justice was a mirage, and a dangerous one. A few paragraphs before that quoted above, he wrote that it tends to destroy genuine moral feelings. It comes “into constant conflict with some of the basic principles on which any community of free men must rest”. Hayek defended the classic system in which rules have no other purpose than to allow each one to follow his own road without colliding with others. Such rules are –Hayek said– like road signs that tell people how to reach their own destination but without commanding any collective destiny. I have described that system in more detail in a previous article.

Of course, laws that comply with that requirement don’t establish who owns what. Distribution comes from the play of the market, that is, from the judicious, injudicious, lucky, or unlucky decisions of millions of people. The price mechanism makes it possible for them to collaborate without a general agreement about collective purposes. The men who make bolts do not have to agree –or have any idea– about the usefulness of the simple door, or of the complex machine in which bolts might be used. They agree with the maker of the door and the machine about the price. Nothing more is needed, and to require agreements about further and general goals is not only inefficient, but immoral. A system requiring more agreement than is possible, moral, and efficient can only attempt to work under the command of a bigger, more powerful, and ultimately uncontrollable government.

Rawls’s system might look similar at first glance. So it is when one reads the paragraph quoted by Hayek. Rawls too relies on general principles and says that whatever distribution of goods that results from a system that complies with those principles must be considered just. The difference, the enormous difference, is that Rawls’s system includes equalization by redistribution as a fundamental “principle”. In other words, Rawls made a goal into a principle. After that, one might think that his system relies only on general rules, not on collective goals. Wrong: what happens is that a collective goal about the distribution of goods has been adopted as if it were a rule like any other. But it is one of Hayek’s fundamental insights that rules and goals are different. And if one uses the name of “rule” for collective goals, that difference does not disappear. It is blurred only.

Oceans of discretion

One must remember that Rawls does not include property among the fundamental rights protected by the first principle of his community. Property is regulated by the difference principle which states that differences in wealth are allowed only if they improve the situation of the least fortunate members of the community (least favoured by nature, luck, or anything else). For instance, medical researchers might be allowed  (mind the passive voice) to buy and own expensive equipment, and perhaps be permitted to retain a considerable part of the profits that comes from their discoveries, if it is considered that such level of inequality works for the benefit of the least fortunate. The passive voice should alert us that some government official or authority is implied. The passive voice allows one to overlook the agent that performs the action, therefore its frequent use in bad political philosophy.

The difference principle is made both more stringent and more uncertain by two further requirements. First, the improvement of the least fortunate must be the maximum possible. That means that it is not enough to say of an inequality of distribution that it improves the situation of the least fortunate in some degree, if another distribution would make it even better.[2] Secondly, Rawls tells us that what must be improved are the “expectations” of the least fortunate, which some personal traits may make different from actual improvement of their wealth or situation. Government must care about classes or categories, not about individuals.

Now the two systems –Hayek’s and Rawls’s– look absolutely different –as indeed they really are. We must also be aware that Rawls’s system requires momentous decisions “on the merits”, a kind of decision that proper rules (in Hayek’s sense) must not put in the hands of governments. For instance, on what basis do authorities select the least favoured group? There are none, as Rawls openly admits “it seems impossible to avoid a certain arbitrariness in actually identifying the least favoured group”[3]. As to the reasons that would justify the taxes that will be used to nip off the inequalities that are not justified (in the view of the rulers) Rawls tells us with commendable frankness that “naturally, where this limit lies is a mater of political judgement guided by theory, good sense, and plain hunch, at least within a wide range”.[4] As another tool for equalization Rawls mentions “redefinition of property rights”.

Same conclusions reached from different paths?

Rawls said that his system was compatible both with socialism and with free markets –free markets with a considerable degree of intervention. In contrast, one would say that Hayek’s ideas aren’t compatible with socialism, and that they run against strong intervention.

Moreover, while Rawls rejected that property were to be considered a fundamental right, one would say that Hayek adhered to Edmund Burke’s definition: we all have equal rights, but not to the same things. And among such rights Burke (and Hayek) surely included property. Rights can be equal only if they are unrelated to the condition of the person or the amount of wealth. Rawls’s system pursues a redistribution of property: that is why property cannot be a fundamental right in it.

All that said about the differences, there is an element in Rawls’s system that makes its implications very vague (even more vague than they already are without it). And because of the haziness that this element adds, because of the fog that it suspends on the oceans of vagueness already opened by Rawls, one might say that his system could well provide a justification for capitalism. The trouble is that it could well justify almost anything else. Let’s see how Rawls introduces this new element.

Rawls tells us that there must be justice between generations too. Some amount of saving, for instance, is necessary for the well being of people not yet born. This new element must also be balanced (again mind the passive voice). Rawls uses it to show that perhaps considerable differences of wealth might be admitted as fair.[5] For, while they might not seem justified according to Rawlsian principles when applied to people living today, it might be argued that such inequalities are necessary for the well being of people in some future generation.

Rawls says that his difference principle cannot be applied between generations because economic benefits go only in one direction, that is, to the future.[6] Just for the record I would say that debts for loans taken today are often passed to future generations, and that will affect distribution in the future. But, leaving that aside, now Rawls has a new element that may justify the wide differences of wealth that are to be found in any place where the means of production are possessed by individuals or private companies. In this way, one could say that Rawls’s notion of justice may be presented as a justification for capitalism and free markets.

Nevertheless, it would be difficult to find a shakier basis. With its exclusion of property as a fundamental right, with equalization as a goal-principle, with its need of a myriad of momentous collective decisions for which it recommends a good “hunch”, it is the worst defence of freedom one may devise.

Hayek described and defended clear principles that build a stronghold for liberty. It is solid because it is rooted in history. In The Road to Serfdom he dealt with, among others, the British and German experiences. Rawls built a castle in the air with no reference to history. Anyone who plans to use that castle for the defence of liberty must be aware that it offers all its gates open for an easy access of attackers. Its basis could be used for as well as against freedom and personal independence. The question about the needs of future generations as against those of the present one will be argued, the selection of the least fortunate group and the proper transfer of wealth will give rise to many different hunches. The redefinition of property rights will provide room for ingenious but controversial schemes. But don’t you worry, in the end, some authority will settle everything down.

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[1] Law, legislation and liberty, The University of Chicago Press.

[2] “In other words, however much a scheme improves the expectations of the less fortunate relative to full equality, it cannot be just if a more egalitarian scheme could sustainably do better for the less fortunate” Philippe van Parijs: Difference Principles, in The Cambridge Companion to Rawls. Cambridge University Press 2002.

[3] A Theory of Justice. Belknap Harvard University Press, Revised Edition p. 84

[4] A Theory of Justice p. 246.

[5] A Theory of Justice p. 252.

[6] A Theory of Justice p. 254.

John Rawls: blind bias as impartiality

Before John Rawls (1921-2002), Socialists and Marxists had justified redistribution saying that workers were the ones who had produced the goods unfairly distributed by the capitalist system. In short: it was fair to plunder the rich because the rich had first robbed the workers. Expropriate the expropriators !!! they shouted. In spite of all the complexities of surplus value and exploitation theories, they rested on the very convincing idea of redress.
          That traditional basis had collapsed intellectually long before it ceased to dominate half of the World. Somewhat late, and with a readership composed mostly by academics and scholars, John Rawls provided a new rationalization for a redistribution of goods.

The most that Marxists could do about the thorough refutation that thinkers like Böhm-Bawerk (link to his book on the mistakes of the theory of the surplus value) made of the Marxian system was to avoid mentioning it. But if Marx was wrong and if it wasn't true that value comes from labor alone, then plundering the rich wasn't so clearly fair. The seizure of all productive goods was no longer redress of previous injustice..

By the ‘30s, though some academics still called themselves “Marxists” they no longer used Marx’s economic concepts. They contented themselves and their public with a repetition of some words and gestures. But a new basis was urgently needed.

What justification did Rawls offer in substitution of the Marxian apparatus? In a word, nothing: no justification at all. As to goals, his theory of justice proposed an ideal of egalitarian redistribution where even skill and intelligence were rejected as justifications for a higher income. That first rule was tempered only by a second rule or proviso by which differences would be allowed only if they worked for the benefit of the unskilled and the dumb – whom Rawls called “the less favored by the lottery of nature”. But, how did Rawls argument succeed where Marx failed?

Rawls's strategy

Rawls provided no moral, economic, or historical reasoning –and that was the cleverest part of his theory.  Instead, Rawls asserted that every person would agree to his egalitarian proposals if every person were impartial and had no convictions about what is right and what is wrong.

His justification is similar to what anyone says to an adult who has signed a contract. You don’t need to argue that the deal is good for him. You just point out that without being forced or misled in any way, he signed the contract. Well, Rawls’s justification is pretty much the same. He skips all other considerations, and defeats everyone saying that they would have signed a contract for the making of an egalitarian society. We must bear in mind that, as any contract, Rawls’s agreement would be enforceable –that is, the State would use its force on those recalcitrant. The justification for that use of force comes from the contract: you signed it. Or rather, you would have signed it. So Rawls has to convince you about that and has no need to bother himself with all the issues that have for ages occupied the minds of statesmen, moralists, and philosophers.

Rawls imagined rational people with no moral conviction and no knowledge about their individual characteristics. He prescribed that they should know the laws of physics, economics, psychology, etc. but all knowledge about what makes them individuals has to be excluded. Rawls called it “the original position” and he assumed that it would make people impartial about this agreement. Impartiality is a key requisite in the Rawlsian system, indeed, the only requisite.

Therefore, a fair scheme of rules is not defined by any reference o argument about its content; it is fair because impartial people would agree to it.

Rawls asserted that the agreement would establish “a purely procedural” notion of justice -one that has no independent criterion for justice, except that it is the result of a procedure. This assertion is disputable, but it should be the subject of another article.
         However, we may ask: What about the original position itself? People situated in that imaginary position would agree to a a system of rules where justice is purely procedural. But is the device of the original position in turn purely procedural? I think it isn't. The original position is designed so as to produce a definite contract -a contract that Rawls thinks would establish a just society. 
         Rawls himself acknowledges that he designs the conditions of the original position and the veil of ignorance so as to achieve of a definite outcome, a certain contract he sees as fair (A Theory of Justice, p. 122). 
         As a smaller example of the design of a procedure that must yield a preconceived result, Rawls mentions a procedure for dividing the portions of a cake. Assuming that it is fair to divide it in equal portions, “the obvious solution –says Rawls- is to have the man who divides the cake take the last piece. He will divide it equally, since in this way he assures for himself as large a share as he can”[1]. This is “procedural” but not purely procedural (the looked-for outcome defines the procedure, and not the other way). It excludes any question about justice and takes as indisputable from the beginning that everyone deserves equal pieces (e.g. who made the cake? does not count). Certainly that initial assumption and goal for the system may be wrong. I think that is the case with Rawl's original position.

A new name for bias: impartiality

But we may leave that objection for a future article in order to come to grips with another very odd characteristic of the path to justice that Rawls has designed. People in the “original position” should not ponder about the justice of leaving products in the hands of those who produce them, or about the merits of skill or perseverance. All that is excluded. Otherwise these considerations could lead people to dangerous thoughts about desert and merit and maybe to refuse the Rawlsian contract. After all, even people who ignore their personal qualities may decide that the products of skill belong to the skillful, the results of perseverance to the perseverant, whoever they might be. 
         That is why Rawls must introduce a second condition: people should have no convictions about right and wrong. Each man in the original position should only try to maximize his share of all the goods (like the man dividing the cake). Rawls says that his way of reasoning about justice (or of avoiding reasoning) has the advantage that it is simpler and therefore may command wider assent.

Rawls postulates that in deciding what belongs to whom, people in the “original position” should not apply any conception of justice.[2] Everyone should try to get the largest portion he can get, and if no one is forced to give up his share to others, then the only possible arrangement is that everyone receives an equal part of income and wealth. Nobody can argue higher merit because that is excluded by the “veil of ignorance” (meant to guarantee impartiality). And given the conditions postulated by Rawls, the outcome is evident: he has excluded individual merit, convictions about what is right and wrong, and left only a desire to get the largest piece one can get for oneself.

We must realize that Rawls adopts a very objectionable notion of impartiality. His impartial man should adopt general rules (enforceable on everyone) considering his own advantage and nothing else. In evaluating the portions that would be allocated to skilled and unskilled people he must have in mind that he might come to be one of the most able as well as one of the most incompetent of men. Only that calculation matters, with no consideration to desert. Understood in this way, impartiality requires absolute personal bias. Impartial people are those who seek their own advantage by means of rules and force –not by means of skill and intelligence. Rawls notion of impartiality would fit well in the Ingsoc’s Newspeak.

I have found that an expounder of the Rawlsian system writes that we shouldn’t think that people in the original position “are purely self-interested, like rational egoists”.[3] Professor Freeman claims that “they are not egoists any more than chess players who play to win or buyers who shop for the lowest price are egoists. Just as chess players and ordinary consumers usually have all sort of moral convictions and motives a well, so parties in the original position are assumed to have them too. Indeed, their moral interests and benevolent concerns are among the interests they aim to protect in their choice among principles of justice.”[4] (link to his article)

Certainly, this is such a complete misrepresentation of Rawls’s requirements for the “original position” that professor Freeman must add that “But for the purposes of this particular decision –namely, deciding on principles of justice for the basic structure of society– the parties do not act from their benevolent affections and moral sentiments. They ‘take no interest in one another’s interest’ as contracting agents but are concerned only with promoting their own interests”.[5]

Professor Freeman’s assertion that signatories to Rawls’s agreement have moral convictions, except that they are suspended for the purposes of judging the agreement reminds me of a personal anecdote. It was a very hot summer in La Plata (Argentina) where I live. I was walking at noon in the city’s center; the rather short buildings provided no shade at all. Then I glimpsed a Restaurant with a billboard saying “Air conditioned inside”. I entered and ordered some meal. Then I realized that the restaurant was as hot as the street. When the waiter returned with the meal I asked about the “air conditioned” advertised outside. Unmoved, he answered that they had air conditioned indeed, except that it was turned off and they had no intention of turning it on.

Professor Freeman’s explanation would seem perfectly natural in Argentina, but perhaps attitudes and standards are different in other nations. Certainly, people in the original position have all sorts of moral convictions and benevolent sentiments. But they turn them off for the purpose of judging the general arrangement of their society.
              Rawls himself tries a similar argument in a later book, Political Liberalism p. 310. He says that people would have all sorts of convictions, but the contract will be signed in the original position by representatives (not by themselves) and he postulates that these representatives must not know what moral convictions the people they represent have (only that they have moral convictions of an unknown nature).

Let’s see: why is Rawls so sure that rational people would unanimously mandate that higher skills don’t justify higher earnings? Because each one of them knows that there is the risk that they might be among the unskilled or the stupid –and they have no moral standard, only the wish to take the most they can get. In the original position they still defend their own interest, they aren’t really impartial. Rawls lets them know only the chances and the risk. If they are rational but have no moral convictions whatsoever, each will try to get the largest part they can get from the others. They will settle for an equal division. Rawlsian justice has been made.

Blind bias is no impartiality. Suppose a judge must decide a case concerning the ownership of some property. In the non-Rawlsian world, the fact that one of the parties is a friend, an enemy, a gorgeous girl, or a repulsive man must have no weight in his mind. It would be wrong for him to make it a factor; it would be immoral, partial, and illegal (indeed, he might have to leave the case if there is a risk of bias).

However, we might adopt the Rawlsian inversion of the notion of impartiality: we might postulate that in order to be impartial and fair, the judge should consider only his bias. He must have in mind only that there is a chance that his friend, or his enemy, or the gorgeous girl, or the repulsive man, is one of the parties in the case. Well then, if the chances are even, he will decide the case according to justice, isn’t it? No, no, he shouldn’t bother about titles and proof. That would make him partial towards truth and justice. No, no, we must eliminate also his moral convictions and any standard of what is right and wrong. To be impartial, the judge must consider his own propensities and aversions and nothing else. He will divide the property in two. That is the new name for impartiality.

I would say that old Karl Marx’s attempt was much better than this. At least he tried hard with arguments about plus value, interest, variable capital, and exploitation. He was wrong of course, but he didn’t start by assuming that his egalitarian proposals were right –as Rawls did. Why should it be seen as fair that I try to establish rules that will force others to improve my own living conditions, just in case I happen to be unskilled or dumb? Rawls confuses two things

1) that in adopting general rules I shouldn’t try to improve my own situation (or that of friends, relatives, etc.) over that of other people

2) that I may try to get rules that work to my advantage, but I must calculate without knowing my own situation, only the chances.

Only the first is right. Rawls actually argues for the second as if it were the embodiment of impartiality, but whatever looks convincing in his reasoning comes from the appearance that he is arguing for the first.

Rawls’s sole formula for justice is impartiality, and his sole formula for impartiality is blind bias. After that, the egalitarian outcome is guaranteed.

A new justification for coercion

I have no objection against those who seek their own advantage. What I find objectionable is that they would use force for that purpose.

Let’s see: Why shouldn’t I try to get advantages for myself when adopting rules? Because they imply coercion; rules are meant to be enforced. The exploits of robber barons and the gain from predatory incursions have not been celebrated by the bards for quite a long time. We think that gain may come from free agreements among the parties concerned, but it is not to be mandated in any way. We may have special provisions for children, the elderly, and the sick, but they are exceptions, not the basic arrangement of society.

Then Rawls comes and says: what if we had an agreement about forced advantages for some people at the expense of others? If everyone agrees to it, even those to be exploited, we can remove the objection against advantages taken by force. But how would it be possible? Rawls answers: make people blind about what makes them individuals, and make them blind about moral convictions. That is the only way in which they may sign to a contract that would justify the use of violence for personal gain. Rawls chose to call it “the original position”.

You will be forced to work for the advantage of other people simply because you would have agreed to it. In the actual world, you don’t sign because you know yourself and what your work has produced, but that is what makes you partial. You would be impartial if you sought gain for yourself without knowing or caring about whether there was any justification for it.

Philosopher’s blind spot

That inversion brings to mind Orwell’s Newspeak. Besides, the name “original position” seems to me very misleading because there was never such an origin.

But we must return to the justifications for coercion, and realize that this has been the blind spot of XXth century political and moral philosophers. That was a complete reversal in the direction of Western thought. Since at least the XVII century, the main concern of political and moral philosophers was the limit of power. How power could be controlled, how its excesses avoided, how its bad tendencies could be spotted before they become dangerous to liberty? Locke, Montesquieu, Burke, Constant, Humboldt and many others that followed their path dedicated their efforts to the task of taming power.

The XXth century seems to have felt that the dangers counted for nothing when compared with the good things that might come from the use of the State’s power. Marx was ahead of his time in that respect –he never seemed to be worried about the dangers of a dictatorship of the proletariat. What if the dictators decide to send millions to labor camps? Well, that was excluded by the theory, wasn’t it? Rawls too wasn’t much interested about the limits of power and the connection between economic liberty and all other liberties. Against all historical evidence, against the examples of his own time, he joined -or led- the large number of thinkers blind to the dangers of a State that would dictate who owns what.

Note: I have modified the first paragraphs of this article after it was posted, without change in the meaning.

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[1] Distributive justice. Included in Collected Papers, 2001 p. 148).

[2] A theory of justice p. 125.

[3] Samuel Freeman: Introduction, p. 13. In Samuel Freeman and others. The Cambridge Companion to Rawls, 2003

[4] Op. cit. p. 14.

[5] Op. cit. loc. cit.

Who needs a replacement for Marxism?

This is the last article on the theories defended by Murphy and Nagel in the book The Myth of Ownership

At the end of The Myth of Ownership, Murphy and Nagel put their own ideas in historical context: “In the aftermath of the century during which the Marxist conception of equality played itself out, at enormous cost, the question is whether a different kind of egalitarian social ideal, one no intrinsically incompatible with capitalist economic institutions, can take hold in the Western democracies”.[1] Certainly Marxism has lost a considerable part of the luster it enjoyed for too long. But there is hardly a need for a replacement.

Actually, Marxism played itself out as a theory long before it was tried on people. Its many mistakes had been clearly demonstrated by the Austrian economist Eugene Böhm-Bawerk before the XIX century had come to an end (link to his article on the Marxist system). It was not necessary to try the poison on people. But it was tried. Then again, once it had produced the famines, the massacres, the show trials, the Gulag system of forced labor, it was not necessary to wait for decades till it finally crumbled in a pile of shame, to reach the conclusion that it was dead wrong. It was so from the start to those who suffered under it.

To many of those educated in the universities of the West, at long last, Marxism starts to look slightly less convincing; a bit less obviously true –though a poll conducted in Britain by BBC 4 in 2005, on its audience, gave Marx as the most important philosopher in history, well ahead of the rest. In other countries, large numbers of people adhere to Marx’s theories about exploitation and class struggle, but without caring about the origins of their ideas. In the US, however, the results of a poll similar to the one conducted by the BBC would have been different.

Marx thought that he had found a fundamental economic objection against capitalism. Against a system that was creating wealth and increasing population as never before in history, Marx did not use altruism and moral arguments (as, for instance, John Ruskin did). Marx thought that socialist production would be more efficient and avoid the contradictions he thought he had discovered in capitalism. Since Bohm-Bawerk’s article on the Marxian system, every informed economist knows that Marx had deluded himself –and misguided millions of people. Nevertheless, many economists and philosophers try to succeed where Marx failed: they try to show that capitalism is inefficient and must be corrected by the exercise of political power. They write theses that would prove that they have unearthed inefficiencies in the form of services wanted but not provided, public goods, free riders, natural monopolies, and a host of justifications for increasing intervention. It has become the surest path to a Nobel Prize in economics.

Murphy and Nagel think that their proposals could be accepted even in the US. They say that their theory is compatible with capitalism, or at least with some sort of capitalism. After all, they write “there is no natural or ideal market. There are many different kinds of market system, all equally free, and the choice among them will turn on a range of independent policy judgments”. Here, “independent” means: the decision should be taken independently of the value one may see in having a market system.

But what are the different free markets they have in mind? We must remember that highly praised thinkers would allow considerable latitude in the choice of the different kinds of market system: as said, John Rawls thought it natural to assume that free markets may or may not have private ownership of the means of production.[2] We do not know whether Murphy and Nagel would share Rawls’s view: their words about what must be left in private hands for the system to qualify as free market are vaguer than that of the master. But vagueness about “hindrances” and “conditions” is not a way to reconcile their theory with capitalism. At the very least, we must remember that Murphy and Nagel admit the morality of private property only in the form of a Hegelian minimum.

When we consider compatibilities and contradictions, we must understand that we are not assessing whether capitalism would survive a single day after theories like those of Murphy and Nagel are adopted, or would fall immediately. Of course, if all means of production are taken by the government, the market is killed –and Rawls’s assertion to the contrary will not keep it alive a single second. But there is also a slow death caused by “conditions” and “hindrances” incompatible with freedom. When we say, for instance, that heavy drinking is incompatible with a career in sports, we do not say that a successful sportsman will fail the day after he starts drinking too much. A very gifted individual may overcome some of the worst consequences for some time. But there is nevertheless a contradiction, something that drags him down, and it would be better for the drinker to recognize it as such. To be sure, a mangled market would work, some capital would be accumulated under the worst conditions, and inventiveness would fight bureaucracies for a long time. But, as with the sportsman, things would never be what they could have been.

It is worth noticing that Hegel himself did not suggest that property should be divided between a minimum that deserves full legal protection as a right, and another larger portion that lacks it. There is nothing in Hegel’s justification of property rights that restricts it to some portion of goods. Anyway, it would be of historical interest to discuss whether it is fair to attribute to him that distinction but, of course, it would not settle the question whether it makes sense.

For their part, Murphy and Nagel assume that the distinction is quite obvious, and tell us that the right to do whatever we want with a minimum of personal belongings does not cover “the freedom to engage with minimal hindrance or conditions in significant economic activity of the sort that drives a market economy”.[3] Now, what is capitalism if we take from it the freedom related to the significant activity that drives it? Steve Jobs would have been allowed to drive his car, but not Apple; Cornelius Vanderbilt would have been allowed to do what he wanted with a small boat, but not with his ship company.

Murphy and Nagel trace a line: any encroachment upon the Hegelian minimum would need exceptionally strong justification from the government, but not if it applies to property that is larger than that: “Some forms of personal discretion –including the basic Hegelian right to hold personal property– are at the core of the self, but unimpeded economic freedom is not one of them”.[4] They repeat it: “While the protection of some form of private property is an essential part of human freedom, the overall structure of the system of property rights should be determined largely on other grounds”.[5] That is to say, they are not part of human freedom.

Again we recognize that lack of perspective that we encountered in the discussion about incentives for work. It may be true that personal property like a comfortable house, a good salary paid by a prestigious university, a car, a personal library, and a few other things may be enough to allow a philosopher to pursue happiness. But Henry Bessemer –the inventor of mild steel– needed smelters; and Henry Ford needed production lines; and Robert Noyce –of INTEL– needed semiconductors. A Hegelian minimum would have not been enough for them, and the rest of us is no worse for that.

Certainly, what the debunkers of ownership have in store for capitalism is described in very general words: what is the kind of “hindrance” in the economic decisions of entrepreneurs that the government can impose without need of any strong justification (which would be needed if it affected an undefined Hegelian minimum)? We would not know until it has been imposed. In fact, we cannot expect anything more precise because the decisions that may be necessary to adopt cannot be known in advance, as proper legal rules are and must be. Friedrich Hayek explained long ago that a government that sets about deliberately distributing wealth, taking from some and giving to others, cannot tie itself to rules known in advance.[6] A government that directs its action mostly to the enforcement of general rules leaves to individuals the responsibility of deciding what is best for them according to present and future conditions, as they judge them.  But a government that tries to redistribute wealth must treat people differently, and in order to be effective it must take into account their changing needs. It must decide questions “on the merits”, that is, taking into consideration individual circumstances. It must watch the evolution of the economy, decide who is to get what now, and decide it again next year.

Nothing of that can be asserted in advance. Unless, of course, it is framed in vague words like “fair allocation”, and “reasonable payment” (and “hindrance”), with the usual provisions that “exceptional circumstances” (as judged when they present themselves) may justify distinctions. So, in a way it is not always true that collectivistic politicians and thinkers hide their plans from us in order to avoid resistance. Even if they wanted to be precise about what they will do to us (which is seldom the case) they could not do it.

Capitalism –even of the kind we have, which includes considerable government intervention– will be seriously affected if the theory that guides its course states, like Murphy and Nagel do, that “Evaluation must decide how 'mine' and 'yours' ought to be determined; it cannot start with a set of assumptions about what is mine and what is yours. The right answer will depend on what system best serves the legitimate aims of society with legitimate means an without imposing illegitimate costs”.[7] That evaluation, inevitably, will be left to the government –the legitimate means will be determined in the same way. What is crucial is that to justify or reject the decision –the authors declare– we “cannot appeal, at the fundamental level, to property rights.”[8]

However, we must realize that property rights that are secured against the changes in the “evaluation of what is mine and yours” are a fundamental requisite for capitalism. Murphy and Nagel’s theory is not really compatible with it. Indeed, if such redefinitions of mine and yours were possible, the rule that protects private property in the 5th Amendment of the US Constitution would mean nothing. Nevertheless, professor Waldron writes “The slogan that property is a human right can be deployed only disingenuously to legitimize the massive inequality that we find in modern capitalist countries”.[9]

Murphy and Nagel call the basic tenets of capitalism, “extreme libertarian”,[10] and sometimes, “everyday libertarianism”.[11] This is highly inaccurate. Libertarian-anarchism has never been implemented in the US, and it is not against the remote chance that it would ever be adopted that Murphy and Nagel argue. They reject the usual and general notion of ownership, they call for redistribution of wealth through cash transfers, and they claim that governmental “hindrances” on entrepreneurship do not need strong justification. Their objections apply really to capitalism.

 The tenets of collectivism

As Marxists and Socialists before them, Murphy and Nagel do not see any relevant difference between general rules under which individuals follow different roads (some successfully, some not), and a system that treats individuals differently in order to reduce a gap between their incomes or to achieve some other social goal.

At the end of the day, we are told, both systems are no more than different ways of allocating resources. One of them generates differences of wealth among individuals, the other generates more equality. The main difference lies in the effects. That these effects are the result of free competition or of government’s coercion is an irrelevant detail of no moral significance. After all, if it is true that taxes are imposed on individuals and that they cannot resist them, it is also true that success is imposed on them by luck, social factors, and even genetics. All of that is, in one way or another, external to people.[12]

Moreover, is it not true that coercion is used to prevent and punish robbery? Certainly, welfare payments put money in the pockets of some people after taking it from others –by force if necessary. But policing the streets and punishing criminals makes it possible for money to remain in the pockets of people, who would have been robbed otherwise. It is argued that these are just two ways of using the force of the state. We cannot say that one is substantially different from the other in any respect, apart from the different distribution of wealth that results from them.

Using this strategy, Cass Sunstein rejects the distinction between negative and positive rights. Just to remind the reader: classic rights like ownership and freedom of trade are often called “negative rights” because people exercise them by themselves; laws may protect them against violence and fraud but no law is necessary to exercise them. In contrast, positive rights consist in help that people are entitled to get from the government. Why are they called “positive”? Because their exercise requires, not merely the absence of harm, but a positive transfer of goods and services.

Now we return to Sunstein. There is no essential difference, says he: welfare payments cost money, but so does the justice system. In both cases the government has to spend money.[13] Someone receives help from the government in the form a cash transfer, and another by being defended against robbers and murderers. Of course, the comparison obscures the fact that those who receive cash transfers are also protected against criminals. But if one forgets it, one may be led to think that we just have two different ways of helping different people.

These arguments are seriously presented as a proof that our common understanding of the issues involved rests on mere prejudice. However, even a child recognizes that there is a big difference between begging his mother to carry him in her arms, and walking on his own legs. You may try to convince the child that there is no essential difference, and point out that when he struggled with uncertain steps trying to reach the other side of the room for the first time, mommy was there ready to stop an unruly brother from tripping his legs. You see, there is no real difference, there was help in both cases –there was a condition anyway. If you abandon your childish myths you would realize that being carried or walking yourself are just two different means of locomotion.

A child would not be convinced of that, but an adult might think that he cannot rationally reject the suggestion that ownership is a myth, as it is claimed in books hailed by experts as masterpieces; books brimming with references and lengthy examinations of what people would decide if they were not themselves. The reader of these books might have the vague feeling that there was something wrong somewhere in the arguments, that big and important things have disappeared from his eyes without him knowing how. I have tried to show by what means they disappear.

What Murphy and Nagel dismiss as mere myth, as entirely imaginary, as “morally irrelevant”[14] are some of the basic principles of capitalism. In the past, collectivism used to be forced upon us with the claim that it was historically inevitable. If you wanted to avoid being looked as a hick, you had to acknowledge that property rights and such were myths, part of a superstructure made for the defense of capitalism –which was a contradictory system. Only thick-headed people could delude themselves into thinking that they could answer these arguments.

Today you are told that your attachment to your property is merely a foggy notion that would not resist a thorough philosophical examination. Your resistance is proof of your lack of understanding. Your must avoid to be caught being –in Cass Sunstein words– “comically implausible”. However, again and again, we find that the theories that are hailed as fundamental contributions to our knowledge are really based on reasoning that is shockingly weak. And we find that the “myths” that are to be destroyed are the most fundamental principles that define the modern world. They are those that explain the difference between the age of the Pharaohs and our age.

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[1] Pages 188-189.

[2] A Theory of Justice, pages 57 and 137. Harvard University Press. Revised Edition 1999. Also in Distributive Justice: Some Addenda, in Collected Papers, page 159. Harvard University Press. Paperback edition 2001.

[3] P. 64.

[4] P. 66.

[5] P. 45.

[6] The Road to Serfdom, Chapter 6.

[7] P. 75.

[8] Same page.

[9] The Right to Private Property, p. 5.

[10] P. 65.

[11] P. 36.

[12] At the base of many justifications of redistribution lies the odd idea –assumed but never discussed– that individuals must not be considered as individuals (defined as such by their qualities and defects and judged according to them), but as ghosts that later on will receive their own personal characteristics. These are not essential or defining of anything, but accidents that ghosts –the true object of political theory– suffer in their transit to this world. Ghosts must be protected from the morally irrelevant accident that makes them individuals.

[13] The Second Bill of Rights, p. 197. In Argentina, Roberto Gargarella, a law scholar who blends Marxism with constitutional law, repeats Sunstein’s arguments to reject the distinction between negative and positive rights: Carta Abierta sobre la Intolerancia, 51 Siglo XXI Editores 2006.

[14] P. 99.