Libertarian vs. Utilitarian Justice

Libertarian and utilitarian theories of justice are, in many respects, diametrically opposed. Libertarians hold that the free market is inherently just, and redistributive taxation violates people’s property rights.[1] Utilitarians, by contrast, are fundamentally concerned with the promotion of human welfare. They hold that society ought to be organized in whatever fashion would best achieve this end – potentially justifying massive redistribution of wealth to the needy. The two theories also differ significantly in their temporal perspectives. Libertarian ‘entitlement theory’ understands justice to be a purely historical matter: “whether a distribution is just depends on how it came about.”[2] Utilitarianism, on the other hand, is purely forward-looking: justice is determined by what would have the best consequences for all concerned.

In determining how people ought to be treated, utilitarianism holds history to be strictly irrelevant. But we usually feel that justice must be responsive to past facts, as past actions might influence what people deserve or are rightly entitled to. At best, the utilitarian can take on board how perceptions of the past will affect people’s future (re)actions. But there is a moral difference between really making a promise, and merely having everyone believe you did. Even if the consequences are identical, we think the past matters. Granted, a rule in favour of treating people as if they had special entitlements and obligations might, in general, tend to promote utility. Nevertheless, historical facts are not considered by the utilitarian to have any intrinsic relevance, and their influence upon the verdicts of justice derives purely from concerns about the future. As such, we might think that even if utilitarianism gets the right results, it does so for the wrong reasons.[3]

Such complaints can serve to motivate the libertarian ‘entitlement theory’, which comprises three principles of justice.[4] The first concerns initial acquisition, or how one becomes entitled to previously unowned things. Then comes the principle of transfer, specifying how titles may pass from one person to another. The idea is that repeated application of these two principles will yield a distribution in which everyone is entitled to their holdings. As Nozick puts it: “Whatever arises from a just situation by just steps is itself just”.[5] Lastly, a principle of rectification governs the treatment of injustice, that is, violations of the first two principles. Note that whereas utilitarian justice aims at a particular ‘end-state’ without regard for how it got there, libertarianism is concerned exclusively with the operation of just procedures, without regard for what ‘pattern’ of distribution results from them.[6]

The principle of transfer enjoys much intuitive appeal when explicated in terms of voluntary exchange. This is seen in Nozick’s famous ‘Wilt Chamberlain’ thought experiment, where we begin with a just distribution D1, and a million basketball fans each choose to pay Wilt to see him play, thus giving rise to an inegalitarian distribution D2. Nozick asks, “If D1 was a just distribution, and people voluntarily moved from it to D2, transferring parts of their shares they were given under D1 (what was it for if not doing something with?), isn’t D2 also just?”[7]

Nozick claims that third parties to the exchange are not affected – “their shares have not changed”[8] – but this is not entirely accurate. What someone can achieve with their resources will depend, in part, on what others have and how this is distributed.[9] Moreover, concentrations of wealth may lead some people to have an unacceptable amount of power over others.[10] This is not to deny that the fans should be allowed to spend their allocated resources. But their right to do so need not imply that Wilt has a right to receive the payment. As an extreme example, even Nozick concedes that an individual cannot justly purchase all the drinkable water in the world.[11] Justice may require interference in voluntary exchanges so as to prevent accumulations of power that risk making many subservient to a privileged few.

An alternative line of attack is to highlight the rival intuition that arises from considering the ongoing needs of the disadvantaged. Thus Kymlicka suggests it is unjust that, at the end of the year, Wilt is rich whilst a disabled man with no earning power has exhausted his resources and is starving on the streets.[12] But the problem here lies not in the transfer per se. If the fans had all stayed at home and held on to their money, the disabled man’s needs – and thus his claims on those resources – would be no less. So we should object, not to the transfer, but to the initial distribution which was insufficient to provide for the ongoing needs of the disadvantaged.

Discussing the transfer of property rights begs the question of how one could acquire title over unowned resources in the first place. Consistency should commit the libertarian to denouncing unilateral appropriation of common resources as a form of theft, since it peremptorily deprives others of their liberty to use the appropriated resources. Autonomy recommends that individuals “have a veto over appropriations which exclude [them] from the commons.”[13] But Nozick denies this, claiming that “[t]he crucial point is whether appropriation of an unowned object worsens the situation of others.”[14] This seems inconsistent with the core libertarian value of autonomy, but we might charitably interpret it as appealing to a general principle of ‘natural liberty’, whereby an action is permissible if it does not harm others.[15]

This raises two issues: what sort of harm, and relative to what baseline?[16] Libertarians typically restrict themselves to considering material well-being relative to a baseline of persisting common unownership, and this allows the proviso to be easily met.[17] But both these restrictions are unacceptable. Libertarians, of all people, should recognize the importance of autonomy and independence to the well-lived life.[18] But once these values are taken into account, it is not so clear that unilateral appropriations make no-one worse off, even compared to continued unownership.

Moreover, our comparisons should also take into account the alternative systems of appropriation that could have resulted instead – anything less amounts to an “arbitrary narrowing of the options”.[19] Once these are considered, it seems most likely that disproportionate appropriations of natural resources will not be allowed, for they disadvantage excluded people relative to more egalitarian alternatives. Suppose that continued unownership of a pasture would be so unproductive as to cause several locals to starve to death. Nozick thus allows an individual to appropriate the land for himself, employ the able-bodied locals, and leave the disabled or talentless to starve just as they would have before.[20] But if the land were distributed equally, the less able could rent out use of their land in return for a share of the products. This way everyone would survive. Unilateral appropriation would lead some to starve who otherwise need not have – it is absurd to say that they are not harmed by this.[21]

However, broadened consideration may prevent the proviso from ever being met, since there will always be an alternative that is better for someone. Thus we may need to abandon this approach to initial acquisition, and adopt some alternative such as utilitarian or egalitarian shares instead.[22] But these too become problematic once the rights of future generations are taken into account. Their inclusion would require natural resources to be divided into indefinitely many shares, precluding each individual from receiving any. Yet it seems unjust to exclude newcomers from initial acquisition, so this may necessitate periodic compensatory redistribution.[23] Further, an absolute property right entitles the owner to dispose of their property however they wish – even destroying it, if they so desire. But surely it would be a gross injustice for the present generation to destroy the world’s natural resources. So we must not have any such absolute right after all.

Thus we find that, if utilitarianism neglects the past, libertarianism is mired in it. Entitlement theory suffers from a lack of foresight. Absolute property rights are not responsive to people’s changing needs, so – insofar as we hold that justice ought to be – we must reject absolute entitlements, replacing them with a more flexible system which allows for re-allocation in response to newcomers to the system and the changing needs of those within it.

Such flexibility is provided by utilitarianism, which gives equal weight to everyone’s interests, so that burdens may be imposed on one if it is to the greater benefit of another. To shy away from this is to take the lesser change as outweighing the greater, which is to treat the former person’s interests as more important than the latter’s. Justice requires equal concern for all, which in turn demands the sort of weighing and balancing between lives that the prudent person applies within his life in accepting a present cost for the sake of a later, greater, benefit.[24]

Nozick objects to this sort of reasoning. “To use a person [for another’s benefit] does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice”.[25] But this is foolishness. No-one is claiming that the demanded sacrifice is for his own good. Rather, it is to benefit someone else in greater need, another person for whom theirs is the only life they have. Nozick's egoistic objection is thus patently question-begging. Further criticisms might derive from a belief that interpersonal welfare is incommensurable. But that is not plausible. If I get a papercut and you get beheaded, it is absurd to deny that you have suffered a greater harm. And it is similarly absurd to deny the moral counterpart, that it is more important to save your head than my finger. The utilitarian may grant that saving your head will not compensate me for my papercut, but it can still be of greater moral weight.[26]

Moreover, the force of the objection to utilitarian sacrifice in fact has nothing to do with the ‘separateness of persons’. We can see this by imagining an analogous case involving but a single person. Suppose that I am an ‘aprudentialist’[27] and so care only about my present well-being, having decided upon reflection that I care nothing for my future self. Faced with a prudential sacrifice, we can ask, “why should I-now be forced to suffer for the sake of my future self? (I will not now receive some overbalancing good from my present sacrifice)”. In this case, to impose the burden on me seems no more legitimate merely because I am also the (eventual) beneficiary. The separateness of persons thus seems irrelevant to the issue of utilitarian sacrifice. What it really comes down to is autonomy and self-ownership.

Libertarians hold that each person owns themselves, and others may not make use of their property (i.e. them) without their consent.[28] Just as others have no right to shelter a homeless man in my house, so they have no right to tax the products of my labour and redistribute to the needy. But the free market requires ownership rights over both self and external resources,[29] and we have seen that the latter is problematic. Moreover, self-ownership is a merely ‘formal’ notion that does not guarantee substantive freedom or power over one’s own life. For suppose that natural resources are initially owned by everyone rather than no-one. On this view, a self-owning individual may not make use of the material world without others’ consent. But, as Kymlicka asks, “how can I be said to own myself if I may do nothing without the permission of others?”[30] Such merely formal freedom has no worth. Yet this is the position of the poor and disadvantaged within a libertarian capitalist society.

Once we recognize the importance of substantive rather than merely formal freedom, our aim becomes to enable people to live the lives they want to live. This commits us to ensuring access to education, healthcare, and basic human needs like food and shelter, since all of these are essential prerequisites to any form of freedom worth having. If provision of these goods requires us to compromise self-ownership, so be it. The latter has no value in the absence of the former in any case. We are thus led back in the direction of utilitarianism.

The appeal of utilitarianism lies in its claim to treating all people with equal concern, as seems required by justice. But it might be objected that the theory is too open to influence from external or selfish preferences that serve to undermine equal concern in a more substantive sense.[31] If others want me to get less than my fair share, then, by giving weight to their preference for inequality, the theory might condone my unequal treatment.[32] The utilitarian’s commitment to formal equality of consideration thus threatens to undermine substantive equal concern, when it’s surely the latter that matters. Granted, there are good utilitarian reasons for discouraging rather than rewarding envy and selfishness, so perhaps counterintuitive results can be avoided.[33] But again, this seems to yield the right result for the wrong reasons. If equal concern is genuinely fundamental to justice then we have reason to reject utilitarianism.[34]

Utilitarians deny that there are any independent facts about ‘fair shares’ or ‘just deserts’ prior to the utility calculations which give equal weight to the interests of all. But if we find this response implausible, we may feel some pressure to reform the theory so as to take justice as prior to – and part of – the utility calculations, rather than a consequence thereof.[35] However, this would yield a just theory of utilitarianism, rather than a utilitarian theory of justice. We would thus require some independent account of justice. We have seen that the libertarian ‘entitlement theory’ is not a plausible candidate. Although the principle of transfer enjoys much intuitive appeal, it cannot get off the ground without a principle of initial acquisition, and the problems there appear to be insurmountable.

Libertarianism ignores the future; utilitarianism, the past. Perhaps what we need is a theory of justice that looks both ways before trafficking in the present.

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[1] W. Kymlicka, Contemporary Political Philosophy, pp.102-103.

[2] R. Nozick, Anarchy, State, and Utopia, p.153.

[3] Kymlicka, p.24.

[4] The remainder of this paragraph summarizes Nozick, pp. 150-153

[5] Nozick, p.151

[6] See Nozick, pp.153-160, for more on ‘end-state’ vs. historical principles, and ‘patterned’ distributions.

[7] Ibid, p.161.

[8] Ibid.

[9] G.A. Cohen, Self-Ownership, Freedom, and Equality, pp.26-27.

[10] Ibid, p.25.

[11] Nozick, p.179.

[12] Kymlicka, p.106.

[13] Ibid, p.117. Cf. Cohen, p.73.

[14] Nozick, p.175.

[15] Cohen, p.114. But one might still think the libertarian is being inconsistent here, in allowing others’ autonomy to be overruled whenever it does not harm them. That seems a clear invite to paternalism!

[16] Kymlicka, p.115.

[17] Cf. Nozick, p.181: “the baseline for comparison is so low as compared to the productiveness of a society with private appropriation that the question of the Lockean proviso being violated arises only in the case of catastrophe (or a desert-island situation).”

[18] Cohen, p.80.

[19] Kymlicka, p.117.

[20] Cf. Cohen, p.86.

[21] Kymlicka, p.119.

[22] Cohen, p.87. Kymlicka, pp. 119-120, suggests we need a “middle ground” between Nozick’s overly weak proviso and our overly strong one, but he concedes that it’s “difficult to say what that middle ground is”, and hints that it might merely amount to egalitarianism in any case.

[23] H. Steiner, ‘Justice and Entitlement’, p.382.

[24] R.M. Hare, ‘Rights, Utility, and Universalization: Reply to J.L. Mackie’, p.107.

[25] Nozick, p.33. Cf. J. Rawls, A Theory of Justice, p.24.

[26] D Parfit, ‘Personal Identity and the Separateness of Persons’, pp.99-101.

[27] This is intended to be the (non-)prudential analogue of an ‘amoralist’. My thoughts here are indebted to Derek Parfit’s objection to egoistic theories of practical reasoning as being “incompletely relative”. Practical decisions are made relative to both an agent and a time (I am deciding how to act now), so, given the close formal analogy between the indexicals ‘I’ and ‘now’, it seems arbitrary to treat only one of the variables as having rational significance. (The analogy is especially potent if one accepts Parfit’s reductionism about personal identity.) See Parfit, Reasons and Persons, pp.140, 163-164.

[28] J. Hospers, ‘Libertarianism’, p.213.

[29] Kymlicka, p.121.

[30] Ibid, p.122.

[31] R. Dworkin, ‘The “Double Counting” Objection’, p.104, contrasts ‘personal’ preferences about what one would like for oneself, with ‘external’ preferences about what one would like others to have. Note that the following discussion is heavily influenced by Kymlicka, pp.37-45.

[32] But cf. H.L.A. Hart, ‘Comments on the “Double Counting” Objection’, p.109: “the message need not be…‘You and your views are inferior, not entitled to equal consideration, concern or respect,’ but ‘You and your supporters are too few. You, like everyone else, are counted as one but no more than one. Increase your numbers and then your views may win out.’ ”

[33] R. M. Hare, ‘Utilitarianism and the Vicarious Affects’, p.243.

[34] Kymlicka, p.43.

[35] Thus N. Rescher, Distributive Justice, p.51, distinguishes the goodness in a distribution from the goodness of it.

Bibliography

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Dworkin, R., ‘The “Double Counting” Objection’ in J. Glover (ed.), Utilitarianism and Its Critics. New York : Macmillan, 1990.

Hare, R.M., ‘Rights, Utility, and Universalization: Reply to J.L. Mackie’ in R. Frey (ed.) Utility and Rights. Oxford : Blackwell, 1985.

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