¹ See especially Barry, Brian, Theories of Justice, vol. 1 of A Treatise on Social Justice (Berkeley: University of California Press, 1989).Google Scholar

² Rousseau, Jean-Jacques, The Social Contract, ed. Cranston, Maurice (Harmondsworth: Penguin Books, 1968), Bk. 1, chs. 6–9Google Scholar. This is Rousseau's normative position; for his account of the actual emergence of property rights, see Section VII below.

³ Rawls, John, A Theory of Justice (Oxford: Clarendon Press, 1971).Google Scholar

⁴ Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar, Second Treatise, ch. 5, sections 27ff. I say “in large part,” because Locke acknowledges the possibility that some resources will become private property after civil society is set up, and intimates that, in these cases, the appropriate procedure is (what I have called) Rousseauian: see ibid., sections 28, 38, 45, and 50. For an attempt, on the basis of these passages, to interpret Locke, 's theory as a wholeGoogle Scholar in Rousseauian terms, see Tully, James, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980)CrossRefGoogle Scholar. For a refutation of Tully's interpretation, see Waldron, Jeremy, The Right to Private Property (Oxford Clarendon Press, 1988), pp. 232–41.Google Scholar

⁵ The provisos most often mentioned are, first, that a unilateral acquisition of resources must leave “enough, and as good” for others (Locke, , Second Treatise, section 27)Google Scholar and, second, that appropriated resources must not be allowed to spoil (ibid., section 31). For doubts about the former proviso, see Waldron, Jeremy, “Enough and as Good Left for Others,” Philosophical Quarterly, vol. 29 (1979), pp. 319–28.CrossRefGoogle Scholar

⁶ Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), chs. 7–8.Google Scholar

⁷ Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A. (Oxford: Clarendon Press, 1888)Google Scholar, Bk. III, Part II, section iv, p. 514.

⁸ Ibid., Bk. III, Part II, section ii, p. 489.

⁹ Buchanan, James M., The Limits of Liberty Between Anarchy and Leviathan. (Chicago: University of Chigago Press, 1975), esp. chs. 1–4.Google Scholar

¹⁰ For a discussion of the relation between the economists' “market paradigm” and the broader “rational-choice paradigm,” see Coleman, Jules, Risks and Wrongs (Cambridge: Cambridge University Press, 1992).Google Scholar

¹¹ See Gauthier, David, Morals by Agreement (Oxford: Clarendon Press, 1986), pp. 94–95:Google Scholar

The operation of the market is to convert an initial situation specified in terms of individual factor endowments into a final outcome specified in terms of a distribution of goods or products among the same individuals. Since the market outcome is both in equilibrium and optimal, its operation is shown to be rational, and since it proceeds through the free activity of individuals, we claim that its rationality leaves no place for moral assessment. Given the initial situation of the market, its outcome cannot but be fully justified. But neither the operation of the market nor its outcome can show, or even tend to show, that its initial situation is also either rational or morally acceptable…. Market outcomes are fair if, but of course only if, they result from fair initial conditions.

¹² Throughout this essay I shall use “Pareto-superior,” “Pareto-improvement,” and “Pareto-optimal” in the following way: one situation S is Pareto-superior to another situation R if and only if at least one person is better off in S than he or she is in R and nobody is worse off in S than he or she is in R; a change is a Pareto-improvement if and only if it is a change from one situation R to another that is Pareto-superior to R; a situation R is Pareto-optimal if there is no situation Pareto-superior to R.

¹³ This paragraph and the previous one are adapted from my review essay “Criticizing the Economic Analysis of Law,” devoted to Coleman, Jules's Markets, Morals, and the Law (Cambridge: Cambridge University Press, 1988)Google Scholar; the review essay was published in Yale Law Journal, vol. 99 (1990), pp. 1441–71Google Scholar; see esp. p. 1461.

¹⁴ “To each his own.”

¹⁵ Hume, , Treatise, Bk. III, Part II, section ii, p. 489.Google Scholar

¹⁶ Rawls, , A Theory of Justice, p. 497.Google Scholar

¹⁷ Barry, , Theories of Justice, pp. 71–74 and 241–54Google Scholar. Cf, Rawls, , A Theory of Justice, pp. 134–35.Google Scholar

¹⁸ Rawls, , A Theory of Justice, p. 103Google Scholar. (The difference principle requires that social and economic inequalities be arranged so as to maximize the prospects of members of the leastadvantaged group in society.)

¹⁹ See Gauthier, , Morals by Agreement, pp. 190–200Google Scholar; and Coleman, , Risks and Wrongs, pp. 49–57.Google Scholar

²⁰ See Waldron, , The Right to Private PropertyGoogle Scholar, chs. 6–7.

²¹ See Dworkin, Ronald, “Liberalism,” in his A Matter of Principle (Cambridge: Harvard University Press, 1985), pp. 198–200.Google Scholar

²² See Nozick, , Anarchy, State, and Utopia, pp. 150, 202–3, and 230.Google Scholar

²³ Ibid., pp. 174–82.

²⁴ Though perhaps, in the end, Pareto principles, with their overtones of voluntarism, require such a grounding also. See Coleman, , Markets, Morals, and the Law (supra note 13), pp. 122–29.Google Scholar

²⁵ See Waldron, Jeremy, “Superseding Historic Injustice,” Ethics, vol. 103 (1992), pp. 4–28.CrossRefGoogle Scholar

²⁶ Ibid., pp. 11–12. Cf. Nozick, , Anarchy, State, and Utopia, p. 152.Google Scholar

²⁷ For this argument (against what he calls “starting-gate theories”), see Dworkin, Ronald, “What is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs, vol. 10 (1981), pp. 308–11.Google Scholar

²⁸ Nozick, , Anarchy, State, and Utopia, pp. 160–64.Google Scholar

²⁹ See also Hume, David, An Enquiry concerning the Principles of Morals, Section III, Part II, in Hume, Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. Selby-Bigge, L. A., 2d ed. (Oxford: Clarendon Press, 1902), p. 194:Google Scholar

Render possessions ever so equal, men's different degrees of art, care, and industry will immediately break that equality. Or if you check these virtues, you reduce society to the most extreme indigence; and instead of preventing want and beggary in a few, render it unavoidable to the whole community.

³⁰ Locke, , Second Treatise, section 27.Google Scholar

³¹ This and the following paragraphs are adapted from Waldron, , The Right to Private Property, pp. 259–62.Google Scholar

³² Locke faces the following issue. People sell things because they have more resources than they themselves can personally use. But perhaps if one finds oneself with more resources than one can use, one should simply abandon the surplus goods and make them available for others to appropriate. That proposition must be refuted if exchange is to be possible in a Lockean world: P can be entitled to sell something to Q only if P is entitled to possess and exercise jurisdiction (e.g., powers of sale) over more goods than he can personally use. Locke attempts to establish this by arguing that the main moral objection to a person's possession of more goods than he can use is that surplus goods may rot or spoil in his possession without being used at all, by anyone. The force of that objection is avoided if P exchanges his surplus perishables for more durable items or for money from Q, which he can later exchange for other things he needs. (Seeing that the surplus perishables do not rot now becomes Q's responsibility.) P is then in a position to “heap up as much of these durable things as he pleased; the exceeding of the bounds of his just Property not lying in the largeness of his Possession, but the perishing of any thing uselessly in it” (Locke, , Second Treatise, section 46).Google Scholar

³³ Hume, , Treatise (supra note 7). Dk. III. Part II, section iv, p. 514.Google Scholar

³⁴ Ibid.

³⁵ Buchanan suggests (Limits of Liberty, p. 30)Google Scholar that there may be some tendency to nonarbitrariness, even at this stage: “In the natural state, individuals will devote more effort to securing and protecting those final goods that stand relatively high in their own preference rankings.” But, he goes on, there is no reason to believe that relative abilities to secure and defend goods will correspond closely with relative values placed on those goods by the respective participants.

³⁶ Though see also Epstein, RichardTakings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), chs. 1–2, for a discussion of similar topics.Google Scholar

³⁷ A lot of material in this section is adapted from Part IV of my review essay “Criticizing the Economic Analysis of Law” (supra note 13), pp. 1463–67.Google Scholar

³⁸ I shall draw attention to some differences toward the end of this section; as we shall see, the position that Coleman considers is somewhat more Hobbesian than Humean.

³⁹ Coleman, , Markets, Morals, and the Law (supra note 13), p. 264.Google Scholar

⁴⁰ Ibid.

⁴¹ Ibid., p. 274.

⁴² By “Pareto-frontier” I mean the ordered set of Pareto-optimal situations (represented, for example, as a curve on a diagram such as Figure 1 below).

⁴³ In the usual diagramming of utilities in a two-party case, the initial distribution determines a point such that all gains from bargaining must be northeast of that point; and the bargaining itself determines the slope of the northeasterly line from that point to the bargaining outcome. (The flatter the line, the more the bargaining favors the party whose utility is measured on the abscissa).

⁴⁴ Coleman, , Markets, Morals, and the Law, p. 274.Google Scholar

⁴⁵ For discussion of the emergence of a monopoly protection agency and its transformation into a Weberian state, see Nozick, , Anarchy, State, and Utopia, pp. 54–146.Google Scholar

⁴⁶ Coleman, , Markets, Morals, and the Law, pp. 268–71.Google Scholar

⁴⁷ This is a little unclear. Coleman's technical account of the arithmetic of the Paretoimprovement (ibid., p. 264) suggests that the savings include the costs to oneself of attacking others' holdings.

⁴⁸ Hume, , Treatise, Bk. III, Part II, section ii, p. 490 (emphasis in original).Google Scholar

⁴⁹ Ibid.

⁵⁰ Ibid., pp. 491 and 495–501. For an account of the internal aspect of obligations that similarly does not rely on the existence of a coercive state mechanism, see Hart, H. L. A., The Concept of law (Oxford: Clarendon Press, 1961). pp. 55–56, 82–88.Google Scholar

⁵¹ Hobbes, Thomas, Leviathan, ed. Tuck, Richard (Cambridge: Cambridge University Press, 1991), ch. 18, p. 125.Google Scholar

⁵² Hume, , Treatise, p. 490.Google Scholar

⁵³ Coleman, , Markets, Morals, and the Law. pp. 265–66.Google Scholar

⁵⁴ Hobbes makes similar assumptions in his argument against the “Foole,” in Leviathan, ch. 15, pp. 101–3.Google Scholar

⁵⁵ Buchanan, , Limits of Liberty (supra note 9), p, 24.Google Scholar

⁵⁶ Coleman, , Risks and Wrongs (supra note 10), p. 57.Google Scholar

⁵⁷ Actually, determining whether the two possibilities stand or fall together would require detailed analysis that I cannot undertake here. For the conditions favoring Hobbesian cooperation, see the discussion in Hampton, Jean, Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986), ch. 5.Google Scholar

⁵⁸ Hume, , Treatise, Bk. III, Part II, section vii, p. 537.Google Scholar

⁵⁹ Ibid., p. 538.

⁶⁰ Rousseau, Jean-Jacques, A Discourse on the Origin of Inequality, Part II, in The Social Contract and Discourses, ed. Cole, G. D. H. (London: J. M. Dent & Sons, 1973), p. 88.Google Scholar

⁶¹ Ibid., p. 89.

⁶² Ibid.

⁶³ Buchanan, , Limits of liberty, pp. 25–26.Google Scholar

⁶⁴ See note 12 above for definitions of “Pareto-superior,” “Pareto-improvement,” and “Pareto-optimal.”

⁶⁵ For an excellent discussion, see Lukes, Steven, Power: A Radical View (London: Macmillan, 1974).CrossRefGoogle Scholar

⁶⁶ I shall say a little more about the difficulties of applying the Humean model to the real world in Section X below.

⁶⁷ See Coleman, , Riste and Wrongs, pp. 57–59.Google Scholar

⁶⁸ Ibid., p. 54.

⁶⁹ Ibid.

⁷⁰ Ibid.; emphasis in original.

⁷¹ Gauthier, , Morals by Agreement (supra note 11), p. 200.Google Scholar

⁷² This reply is adapted from ibid., pp. 196–97.

⁷³ This is exactly the shape of Gauthier's Figure 9 in ibid., p. 228, where X = Gauthier's I_n, Y = B_n, and Z = B_c.

⁷⁴ See also the critique of Gauthier's argument in Kraus, Jody S. and Coleman, Jules L., “Morality and the Theory of Rational Choice,” Ethics, vol. 97 (1987), esp. pp. 725–31.CrossRefGoogle Scholar

⁷⁵ Locke, , Second Treatise, section 11.Google Scholar

⁷⁶ Thus, people who disagree about what counts as a fair share will of course disagree about whether to describe a given individual as a predator in this third sense. See also the discussion in the last paragraph of this section (in the text accompanying note 88 below).

⁷⁷ These four senses of “predator” are mine, not Coleman's.

⁷⁸ Coleman, , Risks and Wrongs, p. 52.Google Scholar

⁷⁹ Ibid.

⁸⁰ There is an excellent discussion in Barry, , Theories of Justice (supra note 1), pp. 68–76.Google Scholar

⁸¹ Hobbes, , Leviathan, ch. 14, p. 92.Google Scholar

⁸² Ibid., ch. 15, p. 110.

⁸³ See Buchanan, , Limits of Liberty, pp. 60–64.Google Scholar

⁸⁴ Gauthier, , Morals by Agreement, p. 195.Google Scholar

⁸⁵ Kraus, and Coleman, , “Morality and the Theory of Rational Choice,” pp. 732 ff.Google Scholar

⁸⁶ An advantaged person (i.e., one with more than his fair share), of course, stands to benefit from complying with at least some unfair arrangements, viz., those that entrench his advantaged position.

⁸⁷ Kraus, and Coleman, , “Morality and the Theory of Rational Choice,” p. 745.Google Scholar

⁸⁸ This applies, for example, to any argument turning on the notion of predations. See note 76 above.

⁸⁹ I have benefited from many conversations with Jules Coleman on these issues.

⁹⁰ Hume, , Enquiry, Appendix III, p. 309n.Google Scholar

⁹¹ Hume, , Treatise, Bk. III, Part II, section ii, pp. 490–91:Google Scholar

After this convention, concerning abstinence from the possessions of others, is enter'd into, and everyone has acquir'd a stability in his possessions, there immediately arise the ideas of justice and injustice; as also those of property, right, and obligation. The latter are altogether unintelligible without first understanding the former.

⁹² Ibid., Bk. III, Part II, section iii, p. 505.

⁹³ “[T]his affords us an easy reason, why we annex the idea of property to the first possession, or to occupation. Men are unwilling to leave property in suspence, even for the shortest time, or open the least door to violence and disorder” (ibid.).

⁹⁴ Buchanan, , Limits of Liberty, pp. 26–27.Google Scholar

⁹⁵ Ibid., pp. 82–90. Actually, since (as we shall see) Buchanan does not countenance an entirely static post-convention world, any subsequent reallocation of holdings can take place only on the basis of unanimous agreement.

⁹⁶ The Fifth Amendment to the United States Constitution provides, among other things, that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

⁹⁷ See Hume's discussion of whether property and rights admit of degrees, in Treatise, Bk. III, Part II, section vi, pp. 530–31Google Scholar. See also the attempt to drive a wedge between Hume, and Buchanan, in Barry, , Theories of Justice, pp. 173–75.Google Scholar

⁹⁸ “Let justice be done though the heavens fall.”

⁹⁹ The tale of this transaction is the starting point of the discussion in Buchanan, , Limits of Liberty, p. 17.Google Scholar

¹⁰⁰ Rawls, , A Theory of Justice (supra note 3), p. 3.Google Scholar

¹⁰¹ See Hume, , Treatise, Bk. III, Part II, section ii, p. 490Google Scholar; Hume, , Enquiry, Appendix III, pp. 306–7.Google Scholar

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¹⁰³ Ibid., pp. 78–79.

¹⁰⁴ Ibid., p. 85.

¹⁰⁵ Hume, , Treatise, Bk. III, Part II, section ii, p. 490.Google Scholar

¹⁰⁶ Buchanan, , limits of Liberty, p. 80.Google Scholar

¹⁰⁷ Buchanan, James, Freedom in Constitutional Contract (College Station: Texas A&M Press, 1977), pp. 82–83.Google Scholar

¹⁰⁸ Barry, , Theories of Justice, pp. 174–75.Google Scholar

¹⁰⁹ Sen, Amartya, “Rational Fools: A Critique of the Behavioral Foundations of Economic Theory,” Philosophy and Public Affairs, vol. 6 (1977), pp. 317–44.Google Scholar

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