1.

1Inquiring into the demands of justice requires one to confront the issue of how diverse and sometimes conflicting political values relate to one another. The domain famously labeled "justice in holdings" by Robert Nozick is no exception. Indeed, egalitarian advocates of diverse conceptions of distributive justice and libertarian defenders of individuals' extensive rights of ownership usually take themselves to be arguing in favor of the relative priority one should assign to the presumably competing political values of equality and liberty. Perhaps more accurately, everyone strives to refute his theoretical opponents by showing that they don't properly make sense of what either liberty or equality truly demands. On the one hand, egalitarians contend that libertarian theories of justice tend to deny individuals the reality or "fair value" of the formal rights and liberties they ascribe to them. Libertarians' reluctance to restrict private owners' property rights for the sake of equality, the objection goes, testifies to their indifference to the fact that significant social and material inequalities leave the formal liberties and property rights of the worse off without content. On the other hand, libertarians claim that egalitarians' advocacy of a duty of redistribution on behalf of wealthy proprietors and innocent tax-payers, meant to benefit the worse off by reducing inequalities, contradicts the liberties and property rights of the former, in addition to being incompatible with the idea that they are the sovereign owners of their own person. [3]

2In this debate, liberal egalitarians are looking for a middle ground. One might either call this a virtue or believe that, to the extent that they insist on the importance of respecting both liberty and equality in spite of the tensions that pull them apart, their view faces an inextricable dilemma. The aim of this paper is to dissipate this dilemma by showing that we can reconcile the demands of liberty and equality by introducing moral limits on property rights. I will hence consider what moral constraints property rights must respect in order to protect our interests in liberty without leading to objectionable inequalities or allowing some owners to exercise an unjustifiable degree of control over the lives of others through inegalitarian relations of domination, subordination or exclusion.

3Liberal egalitarians disagree with the socialists who claim that justice cannot be realized in a private property regime. That is, they see no a priori incompatibility between private ownership and distributive justice. But, as Jeremy Waldron points out:

4

Even if we find that there are good moral grounds for preferring private property to collective property, we still face the question of what conception of private property to adopt. In other words, we still face the question of what detailed rights, powers, liberties, immunities, and so on should be accorded to owners at the level of concrete legal rules. [4]

5From a liberal egalitarian perspective, it is natural to read these remarks as an invitation to construct a theory of private property rights that would deliver the promise of reconciling these rights with liberal egalitarian principles of distributive justice. In this paper, however, the task I set myself is more modest. Instead of focusing on the issue of which theory of property rights is preferable to alternatives in virtue of its ability to define and justify property rights that would be suitable to the realization of liberal egalitarian principles of justice, I will ask myself what moral limits on property rights can be justified. [5]

6The introduction of moral limits on private property rights is motivated by the aim of preventing some of the most objectionable inegalitarian implications of people exercising property rights that would admit of no such limits. But in order to be valid, these limits must take account of the interpersonal significance of the fact that, as liberals traditionally claim, property rights protect individuals' interests in liberty in providing them with a sphere of privacy and autonomy within which they can exercise their particular liberties and pursue their own conception of the good. Hence, moral limits that would restrict owners' liberties to such an extent that the rights that would be conferred upon them would not be responsive anymore to the point of having property rights in the first place would not be valid.

2.

7I will ask what moral constraints on private property rights are justified within the framework of T. M. Scanlon's contractualist theory of "what we owe to each other," [6] mainly for three reasons. The first is that Scanlon has recently suggested that the conflict between liberty and equality with regard to property invites us to think about the justification of certain moral limits on property rights [7]: it is hence worthwhile to see what limits his own theory can justify, and whether these would be such that the property rights that would be made to respect them could efficiently protect our interests in liberty without leading to objectionable inequalities.

8Second, I believe it is important to distinguish two questions worth asking about property rights. One pertains to the fair distribution of property rights and treats these rights as akin to wealth and income. In this regard, moral limits on property rights—for instance limits on the manners in which properties can be acquired and on how much one can acquire or keep for oneself—can be justified by the fairness of the distribution that would result from people exercising property rights that would conform to these limits. So, for instance, luck egalitarians would want to justify moral limits on property rights that would have the effect of subjecting the best-off proprietors to taxation whenever this is necessary to reduce the degree to which others are worse off than them as a result of their own sheer misfortune.

9Another question worth asking about property rights bears on the moral justification of the ways in which these rights allow individuals to relate to and interact with one another—such as the degree of control over the lives of others some proprietors are allowed to exercise or the aspects of the lives of others over which they are allowed to exercise some control, deciding for instance "where and how others can work, what is available for them to buy, and in general what their lives will be like" (pp. 5-6). That these distinctively moral questions, about the kinds of relations between persons that investing individuals with certain property rights allows, are no less important than the question of the fair distribution of property rights becomes evident once we realize that, for example, not only brute luck but also certain ways in which owners might want to exercise their property rights can thwart the prospects of workers. [8]

10Since these questions of interpersonal morality are likely to be forgotten by most liberal egalitarian accounts of the moral limits of property rights [9]—due to their primary focus on the question of the fairness of distributions—it can only be to contractualism's advantage that it is a theory of interpersonal morality. Furthermore, as we will see below, many of the diverse objections to inequality analyzed by Scanlon in Why Does Inequality Matter? [10] target the ways in which certain social and material inequalities, the conditions of emergence of which lies in the lack of adequate moral limits on property rights, bring individuals to relate to one another. [11]

11Thirdly, even with regard to the question of the fair distribution of property rights, I believe a contractualist approach is preferable to its major liberal egalitarian alternatives, such as luck egalitarianism and telic egalitarianism. [12] An example will clarify why:

12

A small, fantastically prosperous, community is such that each and all of its members have more than enough to live extremely well, to meet not only their needs but to take advantage of opportunities open to them and to exercise talents they decide to develop. Still wealth varies within the community from these who have more than enough to those who have several times more than enough. This unequal distribution is the result of luck rather than individual choice or effort. [13]

13As Munoz-Dardé rightly notes, "the intuitive grip that fairness might have had on us in a world with some fundamental individual needs unmet does not seem nearly as pressing in these heavenly circumstances". [14] And yet, luck egalitarians would claim that fairness calls for limits on property rights such that those who have several times more than enough be submitted to a duty of redistribution so as to reduce the degree to which they are better off than those who merely have more than enough, since this unequal distribution is the result of luck. Likewise, telic egalitarians regard unequal distributions as intrinsically disvaluable—claiming that "[i]t is in itself bad if some people are worse off than others" [15]—and will hence want to deprive those who have several times more than enough of the surplus of wealth they possess in comparison to those who just have more than enough, at least so long as this does not contradict the demands of other values.

14But then libertarian defenders of unrestricted private property rights will rightly protest that such constraints would arbitrarily restrict owners' liberties since they would be meant to promote a distributional pattern the value or significance of which cannot even be accounted for by reference to the individual needs it is supposed to serve (since in the present example those who would benefit from these telic or luck egalitarian policies have already "more than enough"). By contrast, as we will see below, contractualism would call for limitations on property rights only when this is needed to prevent inequalities to which the worse off can object on behalf of serious personal interests. [16] Therefore, the normative framework offered by contractualism seems to me more promising when it comes to addressing the issue of the justification of moral limits on private property rights. [17]

15In focusing on the justification of the moral constraints that a system of property rights must respect, instead of taking up the more ambitious task of constructing a contractualist theory of property rights, I leave it open for my readers to decide how best to define rights in general, and property rights in particular. The reason for this is that, when it comes to addressing the conflict between liberty and equality, there is no need to complicate normative analysis with technical debates about whether ownership should be understood as a malleable bundle of rights, as a coherent and monolithic aggregate of entitlements, or as a tree whose trunk represent owners' entitlement to control the use of a resource and whose branches stand for different resource-specific bundles of entitlements. [18] Rather, it is enough for the purposes of addressing the conflict between liberty and equality to understand rights, pretty roughly and in a traditional fashion, as efficient means to protect people's interests in enjoying certain powers and liberties and in not being treated in various ways for the sake of some good (such as the maximization of aggregate utility or the promotion of strict equality in distributions). Hence, if we grant that the point of private property rights, however we define them, is to protect various individual interests in liberty, as liberals believe, then, as I said above, the moral limits we will want to introduce on these rights for the sake of preventing or reducing the most objectionable inequalities that may result from people exercising unrestricted property rights will be valid only if they do not threaten these rights' ability to efficiently protect the said interests in liberty. [19]

16In contractualist terms, what we are trying to justify are the moral constraints that private property rights must respect in order not to be reasonably rejectable. The notion of reasonable rejectability comes from the Contractualist Formula, according to which "an act is wrong if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behavior that no one could reasonably reject as a basis for informed, unforced general agreement". [20] Hence, private property rights that would not conform to moral constraints that could be justified on the grounds of preventing or reducing objectionable inequalities without threatening property rights' ability to protect owners' various interests in liberty would be the legitimate target of strong objections on the part of those who would suffer from the harmful inequalities that would result from people exercising such rights. The moral limits of property rights, when justifiable, will then have to be regarded as criteria for these rights' moral validity.

3.

17Liberals regard private property—or at least personal property [21]—as protecting some of our prominent interests in liberty by securing spheres of privacy and autonomy within which we can explore and develop our own conception of the good as well as pursue our freely chosen plan of life in relative independence from others and the state. Rawls, for instance, lists personal property among the basic personal liberties, on the grounds that it "allow[s] a sufficient material basis for a sense of personal independence and self-respect, both of which are essential for the development and exercise of the moral powers". [22] Likewise, Scanlon regards what he calls "our most basic personal interests in property" as "what makes rights of personal property so important". Those are our reasons "for wanting to have control over objects that are needed to provide for one's life, and in having the stable control over these possessions over time that is needed to plan, and to carry out one's projects" (p. 106).

18Property rights protect a great variety of resource-specific interests in liberty. Indeed, the nearly exclusive control proprietors enjoy over a given resource can usually serve diverse such interests. Owning a house, for instance, can serve one's interest in being part of a small, intimate, sedentary and relatively autonomous community (one's family) together with, say, one's interest in controlling the use of a private space in that home dedicated to the cultivation and exercise of one's artistic talents. These different resource-specific interests in liberty are not all of the same importance. It follows from this that the stronger these interests are, the less the introduction of moral limits on property rights will be allowed to threaten these rights' ability to protect the said resource-specific interests. Suppose that, due to a humanitarian crisis, some houses are momentarily requisitioned by the state so as to provide the most seriously injured with shelter. This might be morally right, depending on the urgency of the situation, even if it were to conflict with some owners' interest in exercising their creative talents in a private, domestic, space. But it may not be justifiable to owners if it did (durably) threaten some of their most important interests in owning a house, such as living in a family home.

19Since I do not aim to propose a full-blown contractualist theory of property rights, there is no need for me to discuss in detail the diverse resource-specific interests in liberty that property rights over different kinds of resources protect. For the purposes of this paper, I will simply distinguish two broad kinds of interests in liberty that we want property rights to protect. One is our interest in enjoying the opportunity to exercise particular liberties and powers over certain resources (for instance, not owning a piano involves lacking one valuable means to rigorously cultivate one's pianistic abilities). The other is our interest in being free from those taxation policies and treatments by others that can be described as coercive insofar as they would arbitrarily deprive owners of the opportunity to use certain resources for the sake of some freely chosen purpose. Morally justifiable taxation policies are not arbitrary. Taxation policies are arbitrary only when they serve an aim whose importance cannot justify depriving owners of some resources so as to advance that aim. Property rights thus protect our interest in exercising particular resource-specific liberties and powers and our interest in being free from arbitrary interference by others and the state with regard to the use of some resources.

20Although depriving owners of some resources diminishes their opportunity to exercise the corresponding resource-specific liberties, these two interests (in enjoying various resource-specific positive liberties and in being free from unjustifiable interference from others and the state) must be distinguished. Indeed, if the state were to deprive those who have "several times more than enough", in the case discussed in Section 2, so as to extinguish the differential effects of brute luck, this would hardly threaten these persons' opportunity to exercise the powers and liberties protected by their rights, since they would still have "more than enough", in the resulting distribution, to meet their needs and cultivate their talents. Rather, these people could object to these luck egalitarian redistributive policies on the ground that they involve arbitrary state interference with their plans and projects—again, not to the point that they would lack the means to carry through these plans and projects.

21To be valid, moral limits on property rights must therefore not be so restrictive that they would conflict with owners' interest in enjoying the positive liberties upon which the leading of a good and autonomous life most fundamentally depends. But they should also not be introduced for the sake of realizing an egalitarian ideal whose lack of interpersonal significance would render the said restrictions arbitrary.

22Let us now formulate a principle of unrestricted private property [23] the egalitarian objections to which will be analyzed in the next section:

23

Principle UPP: Provided that A didn't appropriate his holdings in violating B's property rights, and in the case where A is not bound by a promise or contract of employment to pay B, B is not entitled to have access to and make use of A's belongings without A's consent, or to interfere with A's free use of his belongings (consumption, donation, lending, exchange, investment, alienation, destruction, speculation, etc.).

4.

24Anyone in B's position can object to UPP that the exercise by people in A's position of the rights with which this principle invests them might occasion and sustain harmful inequalities. Indeed, many of the diverse objections to inequality discussed by Scanlon throughout his exercise in "moral anatomy" (p. 44) cast doubts about the moral validity of UPP.

25First, B could object to the existence of a material inequality between him and A on the humanitarian ground that, if he is living under conditions of severe deprivation and suffering while A is very well off, "then a transfer of resources from the better to the worse off, if it can be accomplished without other bad effects, is desirable as a way of alleviating suffering without creating new hardships of comparable severity". [24] Since UPP admits of no exception to A's right to exclude others from his properties, redistributive policies of this kind are ruled out by definition.

26Scanlon's second objection to economic inequalities is that they may lead to humiliating differences in status that would mark some people as more or less eligible for certain social roles and associational goods, which can in turn "interfere with [their] being able to do things one needs to do in order to function effectively in a society" (p. 31). Although this kind of status harm is an ill in itself and interferes with people's abilities in the way just described, it does not give rise to an objection to systems of property as such, since status harm would not exist in the absence of certain prevalent evaluative attitudes on the part of the better off who, for example, sometimes regard their wealth as a reason to feel superior to others. For that matter, what is required is changing those attitudes (pp. 31-32) rather than revising UPP.

27Thirdly, the free exercise of unrestricted property rights of the kind described by UPP could also have the effect of giving "some people an unacceptable degree of control over the lives of others", as when "a small number of people control almost all of the wealth in a society" (5-6). Making the rights of people in A's position less extensive so as to reduce inequalities when they have this effect might then be called for.

28Fourthly, the property rights people in A's position enjoy under UPP might enable these people to undermine equality of economic opportunity. Indeed, one consequence of the inequalities resulting from people in A's position exercising their unrestricted property rights will be that the positions of advantage that are part of certain inequality-generating economic institutions will not be open to all. Scanlon presents equality of economic opportunity as "part of a three-level response to an objection to inequality" (p. 40). If someone objects to an inequality, a satisfactory response should involve, first, the claim that the existence of institutions that generate inequalities of this kind is justified by the purpose they serve and the benefits they create. If this can be shown, then two further claims should be made: the selection of candidates for the positions of advantage must be sensitive only to their ability to advance the purpose that justifies having the institution in the first place, and the complainant must have been placed in sufficiently good background conditions in order to have both the means and the willingness to acquire the ability on the basis of which s/he could have been selected for this position. [25] Both procedural fairness and substantive opportunity are undermined by significant inequalities. On the one side, the more you have, the more extra training you can afford in order to be more competitive, and the more you will be able to ensure, for example through political influence, that the selection of talents for positions of advantage will be sensitive to extra training and skills in addition to the mere ability, which everyone can acquire through public education, to advance the aims of the institution. On the other, it is clear that a more egalitarian repartition of resources would contribute to establishing conditions of substantive opportunity for all.

29The next objection to UPP mirrors the previous one in containing both a procedural and a substantive element. The idea is that significant inequalities, the existence of which is facilitated by the absence of appropriate moral limits on property rights, undermine political fairness. If some people do not enjoy sufficiently good social conditions to afford efficient means of expression, to get a good education and to inform themselves about the political life of their country, their political rights and liberties (to vote, to publicly express their opinions, to run for office, and so on) will be of little worth to them. Furthermore, inequality "can interfere with the proper functioning of political institutions, as when richer citizens influence legislators or other officials to make decisions favoring their interests" (p. 93).

30The sixth objection to inequality discussed by Scanlon under the label "equal concern" (ch. 2) has little to do with the structure of property systems and does not amount to an objection to UPP. The idea is that it would be objectionable for some agency (a municipality, the government, or whatever) to provide some citizens with more than others of a public service that is owed to all, either because it fails to provide some (often marginalized) citizens with the minimum level all are entitled to, or because, when everyone's right to a certain minimum of provision is respected, some citizens receive an extra share, for example because they are the mayor's friends. Inequalities produced in this way do not result from the exercise of property rights, but from a failure on the part of institutions or agencies to comply with requirements of equal concern.

31The last objection B can raise against UPP is that this principle entitles A to properties he might have obtained through his commitment to unfair economic institutions, defined as institutions that produce "significant differences in income and wealth for which no sufficient reason can be given" (p. 140). This brings us back to the first part of the three-level response to an objection to inequality. If someone enjoys a high level of income for which no institutional justification can be offered, that is, no justification validly pointing out that the position of advantage for which he or she has been selected serves a justifiable purpose and creates benefits for all, then how could it be the case that he or she is entitled to it? This objection to inequalities generated by unfair institutions also captures the thought that it would be unfair for economic institutions to ignore the claim of "participants in a cooperative endeavour" to "an equal share of the goods which that endeavour produces". [26]

32To sum up, five of the seven objections to inequality discussed by Scanlon can be addressed to UPP—that is, all except those pertaining to status harm and violations of equal concern. According to contractualism, B's objections to UPP are morally valid: they are personal (they are made on behalf of B's interests), individual (they don't arise for the sake of some collectivity, but for B's interests only), generic (anyone in B's position could recognize their importance), and finally they are neither circular nor empty, since they respect what Derek Parfit calls the "moral beliefs restriction" [27] (e.g., none of these objections is grounded in the belief that, given that inequality is unjust, UPP can be reasonably rejected since it can lead to and maintain unequal relations between people). [28]

33Furthermore, unlike luck egalitarians' fairness-based objection against UPP, according to which it should be compulsory for A to give away part of his resources to people in B's position whenever the latter are worse off than him as a matter of luck—that is, even when it is not obvious that this would matter, as in the case discussed in Section 2—the objections to UPP discussed above have immediate interpersonal significance. It is clear, for instance, that UPP cannot be right given that it allows A not to alleviate B's deprivation when this could be done easily. What is more, these objections do not only target the unfairness of certain distributions of property rights. Indeed, UPP is also objected to because of the inegalitarian relations of control, of unequal political influence or power, and of exclusion from certain social roles and opportunities that it allows. Therefore, introducing moral limits on property rights so as to prevent the various inegalitarian implications of a free exercise by people in A's position of the rights with which UPP invests them cannot be said to be arbitrary, since these limits, instead of serving an egalitarian ideal the importance of which cannot be accounted for by reference to human needs, are meant to protect fundamental personal interests.

34What, then, are the right restrictions?

5.

35One possibility would be to regard the rights that UPP attributes to A as valid except when the relation between A and B is such that the latter suffers from any or some of the aforementioned objectionable inequalities and would benefit, in this regard, from a transfer of resources from A. This would amount to justifying internal exceptions to owners' rights such that property rights that did not incorporate these exceptions could be reasonably rejected by those finding themselves in B's position.

36This is a traditional contractualist strategy. Indeed, reflecting upon what we owe to each other does not only involve thinking about what rights and duties people have, since we should also consider what reasonable exceptions and qualifications these rights and duties must admit of in order to be defensible. Scanlon's account of our obligations to keep our promises and of the particular circumstances in which promises do not have to be kept provides a helpful illustration of how to conceive of exceptions of this kind.

37In opposition to Hume's conventional account of promises in A Treatise of Human Nature (Book III, Part II, Sect. V) and to Rawls' principle of fairness in A Theory of Justice (Part I, ch. 2, § 18), Scanlon refuses to understand promisers' duties towards promisees as grounded in social practices and institutions. [29] He gives instead an expectational account of these obligations, according to which they emerge from the moral relations we are engaged in with other people. In a moral relation, we refrain from manipulating others and from ignoring their legitimate expectations, especially when we have created them. For Scanlon, one of the reasons promisees have for wanting promisers to be compelled to keep their promises is that the assurance that the thing promised will actually happen is of great value to them, as they may count on this assurance in deciding what to do. Potential promisers therefore have reason to be able to provide this assurance, since their promises would otherwise not be taken seriously.

38Nevertheless, a principle according to which promisers had to fulfil every promise they have made would be too demanding. In order to be valid, Scanlon argues, a principle of fidelity requiring that one fulfils one's promises should incorporate a proviso specifying the kinds of situations in which the promise doesn't have to be kept: promises made under duress, a threat, in situations of urgency, or as part of a "role game" are like this. In sum, promisers must keep their promises except when, for instance, the fact that the promise was made under a threat provides them with a "special justification" for not keeping it. Scanlon's principle of fidelity reads as follows:

39

Principle F: If (1) A voluntarily and intentionally leads B to expect that A will do X (unless B consents to A's not doing so); (2) A knows that B wants to be assured of this; (3) A acts with the aim of providing this assurance, and has good reason to believe that he or she has done so; (4) B knows that A has the intentions and beliefs just described; (5) A intends for B to know this, and knows that B does know it; (6) B knows that A has this knowledge and intent, then, in the absence of special justification, A must do X unless B consents to X's not being done. [30]

40Just as this principle stating promisers' obligation to keep their promises would not be valid if it did not incorporate this proviso, the proposal under consideration maintains that the reason why B can reasonably reject UPP is that the property rights it confers upon A should incorporate, on pain of being indefensible, a restriction to the effect of subjecting proprietors to a duty of redistribution whenever this is needed to prevent those in B's position from enduring any of the objectionable inequalities discussed in Section 4. While exceptions to moral obligations are justified when they legitimately alleviate the burden of duty-bearers without threatening the interests of those who rely upon the obligations being generally fulfilled, exceptions to rights must be justified on the ground that they protect the interests of those who might be severely burdened by others' freedom to exercise their unrestricted rights as they wish without intolerably threatening the interests which the latter take in having these rights in the first place.

41Accordingly, I propose to build on B's five objections to UPP so as to define moral limits on property rights. In this way, the inclusion by property rights of a restrictive clause according to which people in A's position must transfer part of their wealth to those who suffer from the objectionable inequalities discussed earlier becomes a criterion for the moral validity of the former's property rights, just as Principle F would not be valid if it did not make any room for promisers' permission not to keep promises made under a threat. The principle of restricted private property we obtain is:

42

Principle RPP: Provided that A didn't appropriate his holdings in violating B's property rights, and in the case where A is not bound by a promise or contract of employment to pay B, it is permissible for A to make use of his belongings as he intends (consumption, donation, lending, exchange, investment, alienation, destruction, speculation, etc.), within certain general constraints on action, even if he is wealthier than B, and B isn't entitled to require that A redistributes part of his wealth to him, unless this is necessary to prevent B from being subject to (1) severe deprivation and suffering, (2) A's unacceptable power or domination, (3) insufficient (i.e. unequal) economic opportunity, (4) unfair political institutions, or (5) if the inequality in income between them results from unfair economic institutions.

43According to RPP, whenever any of the conditions 1 to 5 does not hold, A should redistribute some of his wealth to B. [31] A comparison between the excusing conditions that allow one to depart from the rules of etiquette and those that nullify an otherwise valid moral obligation will clarify in what sense the duty of redistribution defined by RPP works as an internal criterion for the moral validity of property rights. As Samuel Freeman writes:

44

the reasons morality provides subordinate all other practical demands in deliberation. Rules of etiquette are not like this. One may breach these rules for moral and other reasons (e.g., to save another, or oneself, from destruction). These excusing conditions are part of the rules of etiquette. Morality also contains excusing conditions (accident, mistake, duress, lack of capacity, etc.). But moral excuses are justifiable only on morality's own terms, i.e., on condition they could be accepted by others as a basis for reasonable agreement. [32]

45In other terms, excusing conditions nullifying a moral obligation are criteria for the moral validity of the very principle that states the conditions under which the obligation ought to be fulfilled in the sense that this principle would be unjustifiable if it did not incorporate these excusing conditions. So, the "special justifications" included in Principle F do not override or outweigh the obligation specified by the principle (moral obligations, unlike rules of etiquette, are not overridable): the principle rather incorporates them in order to accommodate the possibility that promisers end up finding themselves in situations in which the principle "does not apply because the reasons that support it in normal cases are modified in important respects". [33] Likewise, the duty of redistribution works as a criterion for the moral validity of the property rights that are conferred upon A by RPP. Indeed, it is meant to deal with the possibility that the inequalities between A and B become so objectionable that the reasons that support the protection of property rights, such as our interests in liberty referred to in Section 3, could not reasonably lead us to defend unrestricted property rights in the face of B's objections to UPP.

46But, one should ask, do people in A's position have valid objections to this principle?

6.

47The trouble here is that the duty of redistribution included by RPP might subject A to the arbitrary interference of others and the state. [34] This objection might be read in two ways. According to the first reading, it is the motivation behind using redistribution as a criterion for restricting A's property rights that is itself at fault, while the second reading focusses on the unfairness of various redistributive policies. As Nozick notoriously put it:

48

To maintain a [distributional, for example strict egalitarian] pattern one must either continually interfere to stop people from transferring resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them. [35]

49If RPP were designed for the sake of reducing any and all inequalities, the corresponding limitations of A's liberty to control the use of certain resources could hardly be justifiable to A because they would be motivated by the aim of realizing an abstract and arbitrary [36] ideal of justice. Scanlon would concede the point to Nozick, as when he says that "[o]pponents of equality seem most convincing when they can portray equality as a peculiarly abstract goal—conformity to a certain pattern—to which special moral value is attached". [37] But the duty of redistribution that RPP imposes on owners does not serve the realization of a goal whose value is hard to appreciate; it is grounded instead in B's personal reasons not to endure particularly harmful inequalities, and we have seen at the end of Section 4 that the interpersonal significance of B's objections to UPP prevents A from denouncing the introduction of moral limits on the property rights UPP confers upon him as arbitrary in cases where these limits would protect B's interests in not being, say, subject to A's unacceptable domination.

50This, I believe, deprives the libertarian objection against RPP of a great source of strength. But there is another sense in which RPP might subject A to the arbitrary interference of others and the state. Libertarians would condemn RPP as liberticidal, as "creat[ing] rights to interfere with the rights that [it has] created" [38]: according to them, imposing a duty of redistribution on A even in cases where his properties were acquired without violating any property rights would amount to allowing B to interfere with A's legitimate property rights—i.e., with rights over goods the acquisition of which did not involve rights violations at all. However, the absence of rights violations is not sufficient for economic transactions never to generate objectionable inequalities. The trouble with RPP must therefore lie elsewhere.

51The reason why RPP is unsatisfactory is that it incorporates the duty of redistribution as a criterion for the moral validity of property rights relatively irrespective [39] of how belongings were acquired, thus neglecting the fact that, as Nozick's Wilt Chamberlain example illustrates, disturbing inequalities might result from legitimate and illegitimate economic transactions alike. As a result, RPP will fail to distinguish inequalities that result from legitimate transactions from those that do not such that the assessment of the moral validity of A's property right over a certain resource will not be responsive to the fact that the background circumstances under which this resource was acquired by A might have been either objectionably unfavourable to B or perfectly fair to him. RPP thus treats all inequalities whose reduction is needed to alleviate B's deprivation in the same way, without considering who might be responsible for this state of affairs. This means that A might have the same duty of redistribution no matter whether his belongings were acquired illegitimately or not [40], which may encourage the "morally unprofitable exercise of depriving one innocent person to avert another innocent person's deprivation", to borrow a phrase from Hillel Steiner. [41]

52This is because RPP mistakenly assumes that individuals are entitled to certain outcomes, such as those in which B would not be burdened in any of the five ways that trigger A's duty of redistribution. This is explicitly rebutted by Scanlon on the ground that "there are limits to the conditions we must provide, and after that it is up to [people]—their responsibility—to make their own way" (p. 63). Surely, we have a right not to be made to suffer from worryingly harmful inequalities. But it would be unreasonable to demand that others bear the cost of choices we have made while enjoying sufficiently good background conditions—sufficiently good, that is, for our choices to be binding in the sense that we will be substantively responsible for their outcomes. [42] Taking the example of vaccination, Scanlon once said:

53

this is what we use to protect people from being sick, but it won't work for all. Reasonable complaints arise when the vaccination has not been administered, but those who fall sick despite having been vaccinated can't reasonably object that there has not been done enough to prevent their sickness (since it might not be reasonable to ask the society to do more than vaccination). In other words, there is a limit to what is reasonable to demand from one another. [43]

54That is, demanding that others be constantly forced to absorb the cost of our own choices would not be reasonable. But we can reasonably object to being disadvantaged by the outcomes of choices we have made under background circumstances significantly worse than those which we could reasonably expect others to provide us with so as to enable us to successfully carry out our plans and projects.

7.

55Reflecting upon the defects of RPP invites us to consider what kinds of economic transaction would generate justifiable inequalities only. It is plausible to suggest that transactions occurring between parties respecting each other's interests in not being deprived of relevant information and in not being deceived by others will generate morally acceptable inequalities if and only if all the parties to the transaction enjoy sufficiently good background conditions in order to be able to avoid both making unwise choices and having to make a choice between equally disvaluable alternatives.

56For example, one can object to inequalities that result from transactions that were such that one had no choice but to interact with the other parties in this way, not having the possibility to say "no", as the underemployed workers in Marx's example of the reserve army of labour: it is essential that people be effectively free, and not only formally, to choose where and to whom to sell their workforce (pp. 113-114). People will also have reason to denounce the differential effects of transactions in which the other party enjoyed an unfair degree of bargaining power, as well as inequalities that would result from transactions whose most likely outcomes they had no way to anticipate, either because they lack education or were deceived by the other party. These considerations lead to the following principle of justice in the acquisition of private property:

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Principle APP: Social and material inequalities are justifiable if and only if they result from economic transactions that were entered into and followed through with (1) none of the parties involved deceiving the other or corrupting the fair institutions within which the interactions take place, [44] and with the parties enjoying background conditions that are sufficiently good for them to afford (2) a fair opportunity to avoid interacting in such ways, (3) a reasonably comparable bargaining power, (4) sufficient access to relevant information, and (5) the ability to form reasonable expectations about the outcomes of the transaction.

58When these conditions are met, we have "done enough" and the parties may not complain about the outcomes that are produced in this way, which in turn implies that proprietors will be free to exclude others from and make whatever use of their belongings, within certain background constraints on action. [45] Furthermore, whenever these demanding conditions are met, it will be unlikely that anyone would end up so badly off as to be subject to the harmful effects of inequality discussed in Section 4. However, those who did not enjoy sufficiently good conditions in the way described, as a great many people in current markets, have a claim that resulting inequalities be reduced, for instance through redistributive policies. APP and RPP are thus complementary in the sense that, whenever inequalities that are harmful in the way described in Section 4 result from the winning party's taking advantage of the fact that any one of the five criteria for the moral validity of the outcomes of economic transactions stated by APP was unmet, this party will have to redistribute part of her wealth.

59APP sets the terms of a repartition of tasks between individuals, who are for instance forbidden to deceive one another, and the institutions of the basic structure, which must provide, inter alia, fair selection procedures and access to public education for all in order to place everyone in sufficiently good background circumstances. [46] The question of what level of public education is needed for realizing the ideal of a society in which all would be endowed with substantive opportunity is an empirical question that must be settled at the political level and whose answer depends upon the functioning of a given country's economic system and institutions.

60No doubt institutions will not be able, in the absence of taxation laws, to comply with the tasks APP assigns them. I will end by saying that predistributive [47] taxation of the kind that is needed in order for APP to be applied widely and effectively is not vulnerable to the objections against redistributive taxation discussed in Section 6: its purpose is not to reduce all harmful inequalities by taking away from proprietors, at the end of each period, what they might have legitimately acquired, but to ensure that the pre-tax income of every person will be justifiable to her as resulting from choices she will have made under sufficiently good conditions, the provision of which predistributive taxation is precisely meant to secure. [48] Thus, unlike RPP, APP cannot be objected to by tax-payers on the ground that it would subject them to the arbitrary interference of others and the state.