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Title: Left-wing libertarianism
Author: Jean-Fabien Spitz
Date: 2006
Language: en
Topics: left-libertarianism, self-ownership, equality, distribution
Source: Retrieved on 15th July 2022 from https://www.cairn-int.info/journal-raisons-politiques-2006-3-page-23.htm
Notes: Published in Raisons politiques Volume 23, Issue 3, 2006, pages 23 to 46.

Jean-Fabien Spitz

Left-wing libertarianism

The libertarian objection to redistribution policies is well-known:

Insofar as there is no distinction between self-ownership and the

ownership of things in which I have mixed myself in the form of my

labor, any attempt to redistribute part of what belongs to me to meet

the needs of third parties or to promote an equality policy amounts to

forced labor or slavery [1]. This attitude is intuitively attractive

because, unlike the Rawlsian approach, it takes into account the idea

that individuals own themselves and that they have a primitive and

exclusive right over their own person and their own abilities and

talents. It therefore takes as its starting point a principle of fair

acquisition, which allows us to say who owns what before entering into

the cooperation process, and independently of it, and thus helps

overcome a problem that seems to haunt a number of egalitarian theories

of fairness today, in particular Rawlsian theory. In fact this does not

seem to take into account the question of individual contributions to

the process of social cooperation, and seems to consider only material

and personal resources (talents and abilities) as components of the

total inventory created by cooperation; so it focuses only on how we

should distribute total resources so that the societal structure can be

considered fair. [2] But this approach seems counterintuitive, as common

sense sees social cooperation as a process in which individuals enter

with the resources that they own—in particular their own person,

including their personal qualities—and that it is unfair that social

redistribution principles do not take account of these initial

contributions.

But if, in the Rawlsian world, the structural viewpoint—the requirement

for reciprocity in distributing the benefits of social cooperation—seems

ready to overwhelm the personal viewpoint of libertarian theory,

conversely it is the prescriptive viewpoint of the person which seems to

exclude structural considerations. In other words, abstract respect for

the individual’s rights trumps structural considerations; in particular

it excludes fairness considerations that ask whether people are really

placed in relation to each other in a way which permits cooperation by

free and equal agents.

Recently, the school of thought known as “left-wing libertarianism” has

looked for ways to combine the recognition of a person’s ownership

rights over himself (and possibly over things, without which this right

is devoid of substance) with the possibility of legitimizing a

structural requirement for equality [3].

The thinkers who created this movement started from an initial intuition

which is basically very simple: People are not equal, and it seems

obvious that if the only purpose of the theory of social justice is to

guarantee the principle of self-ownership, this principle simply

transposes inequality between individuals into social inequality . This

can only happen, however, if, as Nozick would want, every individual’s

rights over himself are also extended to rights over the things that he

acquires and is mixed in with, which together constitute his own person.

If we assume that an individual’s rights over himself do not necessarily

extend to rights over what he acquires by using his person, this

fundamentally unequal outcome does not necessarily ensue, or not

necessarily to the same extent. Of course, this means that the

appropriation of things by individuals is subject to a structural

condition of sharing but, after all, Nozick himself accepts that the

legitimacy of the acquisition of external resources is subordinate to a

structural respect for prior rights, and thus that the right over

external things is essentially different from the individual’s

unconditional right over his own person (and over his labor, assuming

that he uses no external resource to perform his labor). Certainly

Nozick interprets this conditional clause so weakly that any exclusive

appropriation of a share of external resources inevitably satisfies it.

Indeed, he maintains that the appropriation is legitimate if it does not

result in putting third parties in a worse position than they would have

found themselves in, had there never been any private appropriation [4].

Thus it is enough to establish that all members of society are better

off in an economy based on private property than in a state of nature in

which there is no private property, to prove that private property is

legitimate and that it can have no limits. For Nozick, any egalitarian

interpretation of the structural condition of the legitimacy of private

appropriation (i.e., any condition which would demand that the act of

exclusive appropriation not give the person who does so, an advantage in

relation to those who are not able to do so to the same extent and

quality) would subject the appropriation of external resources to the

unanimous approval of all members of society and would destroy the

reality of the principle of self-ownership, which can only be effective

if there is a right to appropriate the means to give it substance which

is, thus, not subordinate to the unanimous approval of third parties.

This, then, is the challenge that “left-wing” libertarians try to

resolve by asserting that it is possible to give egalitarian substance

to the structural legitimacy of exclusive appropriation, without voiding

the principle of self-ownership. They thus try to capitalize on the

benefits of the libertarian position without accepting its unequal

consequences, which, in terms of justice theory, inevitably follow the

idea that the rights of the individual come first before any structural

precept governing the nature of relationships between individuals. For

this reason they propose a form of synthesis between the individual

principle and the collective principle, between an ethics based on

rights and a form of structural theory that takes this structure of

individual relationships into account and demands that it conform to a

principle of equality in the sharing of natural resources.

This school of thought thus borrows from libertarianism the idea that

each person owns himself, and allocates limits to what others can do to

a person without that person’s consent. In particular, it assigns

inviolable limitations on what an equality policy can do, and it

emphasizes that the ethical requirement to respect self-ownership is a

source of independent moral imperatives for the structural requirement

for equality. Conversely, authors who claim to adhere to this view want

to show that the right that we each have over our own person cannot

extend to the things that we appropriate, since any appropriation of

external resources transforms the conditions under which individuals can

exert the right that they have over their own person. In other words,

the right over oneself does not confer a right over external things and,

unlike the assertion of classic libertarianism, the two rights have

different foundations: Each person has an exclusive and unconditional

right over himself, but the right over things is conditional and

subordinate to a structural requirement for equality. The central idea

of left-wing libertarianism is therefore that the two considerations are

compatible, that the unconditional right over oneself is not destroyed

by the conditional nature of the right over external things, and that,

conversely, the egalitarian right over external resources is not

annulled by the unconditional and exclusive right over oneself.

This theory therefore intends to put forward the idea that, as external

resources are common, no-one can appropriate these except on condition

of respecting a structural imperative which confirms that the rights of

all humans are neither contravened nor annulled by the act of

appropriation. We will see that the content of this structural

imperative can vary, but that the idea remains the same: Although each

person can freely use his person without respecting any condition linked

to the rights of others, this does not extend to external resources, and

thus we have a theory of justice which claims to combine a

non-structural principle in the first person and a structural principle

of the appropriation of material objects.

In conclusion, we will suggest that this attempt at synthesis fails and

that it either moves towards an assertion of self-ownership, extending

unconditionally to things (this is the theory of classic liberalism), or

to an assertion of the conditional nature of the appropriation of

things, which ends up voiding the principle of self-ownership in any

practical sense (returning us closer to the Rawlsian theory). It is

therefore essentially unstable [5].

1 – The principle of self-ownership

Let us start by trying to define the principle of self-ownership. This

can be summarized in the following two characteristics:

A full right of control over the use of my own person (which includes

the full right to transfer my right over myself to others, most

left-wing libertarians acknowledging the shameful consequence that it

legitimizes voluntary slavery).

My right over myself is unconditional, and in particular immune against

any attachment or taxation: I have the right to freely use my own person

without having to pay anything to anyone.

It should be emphasized that, expressed in this way, the self-ownership

principle does not confer a right to external resources, or to use or

appropriate them; nor does it guarantee that I can freely dispose of the

results of my work since, in most cases, including intellectual work,

the expression of this work requires the use of external resources [6].

Therefore, on its own, the principle of self-ownership does not provide

any basis for the actual expression of freedom, as it does not involve a

guarantee that I can have the use of my person; it only involves a

negative guarantee that others cannot have use of my person without my

permission.

One consequence of this principle of self-ownership—apart from the

possibility of voluntary slavery —seems to be that I am never obligated

to put my person at the disposal of others, should they need it. We must

highlight this idea of a possible obligation to place my material

resources at the disposal of others, as it is possible (and we see

left-wing libertarians adopting a variant of this position) that I only

possess these material resources subject to the implicit condition that

I place them at the disposal of others when they are in extreme need of

them (and I do not vitally need them to give effective substance to my

own self-ownership right). These material resources are therefore owed

to those who need them, because their need merely reflects their right

to a share of external resources equal to that which I have myself

appropriated. But, by definition, this does not apply to my person,

which I possess unconditionally. This stance may seem outrageous, but

although there may be many people whom I could help by placing my person

at their disposal, the conclusion here is that there can be no

obligation to act in this way [7].

2 – Equal distribution of external resources

As regards external resources, the assumption is, on the other hand,

that these are common and that each individual has the right to an equal

share. [8] This common arrangement can take two very different forms:

One solution is to say that things are necessarily held in common, so

that I can never use common stock without the unanimous consent of

others. We immediately see that this solution is not very realistic

since it makes the principle of self-ownership meaningless: having

accepted that it is impossible to act without using external resources,

the fact that any use of external resources requires the agreement of

the community places my person at its discretion and destroys the

personal element that we had thought had been protected by setting out

the principle of self-ownership. It is therefore necessarily the second

solution that should prevail—if we do not want the egalitarian component

of the theory to overwhelm the autonomous normativity of an individual’s

right over himself—i.e., that each person has the right to use external

resources provided that he does not stand in the way of others’ rights

to use them to the same extent. In a way this is a principle of

egalitarian sharing. A good example would be a bench or a seat in a

public garden: I have the right to sit there without asking anyone’s

permission, but I cannot prevent others from sitting there when I am not

[9].

Obviously, this usage solution is imperfect, since the right of others

to sit on the bench is void if the bench is already occupied. Therefore,

it is necessary, in some way or other, for the occupant of the bench to

pay compensation to those who are not able to sit there in the form of a

fee which reflects the ownership right that they possess over this

bench, but that they cannot exercise because it is occupied. We

therefore agree with the idea that each person can exclusively

appropriate part of the common external resources on condition that they

respect a structural rule which recognizes that each person has an equal

right to carry out such an appropriation; this structural rule

prescribes the payment of financial compensation to a common fund,

determined by the market value of what the act of exclusive

appropriation removes from the community. To the extent that the problem

of future generations is always present, this fee can only take the form

of income which transforms the ownership into rental, into a right to

use in exchange for compensation [10]. This income is paid into a fund,

and it is this fund—publicly managed—which should be used to give every

individual who arrives on the scene when the world is already fully

occupied, a sum of initial benefits, the value of which is equal to the

equal share of natural resources to which he was entitled. The

legitimacy of exclusive appropriation is therefore subordinate to the

obligation to pay financial compensation, which is determined by the

market value of what is removed from the community; this obligation

fulfils the requirement that each person has a right to an equal share

of external resources, to the extent that what I take should not nor

cannot jeopardize the ability of others to take a share of the same

value. Contrary to Nozick’s position, it is not enough that third

parties are not made worse off by my action, and if I improve my

position by becoming a private owner I cannot justify my action by

claiming that I have not made anyone worse off; I also have to show that

they had/have the same opportunity before and after to improve their own

situation by using a share of the common resources which has the same

value as that which I myself have removed from the community. The common

fund, maintained by the fees paid by owners, is used for this.

As the privatization of an (equal) share of common resources is

justified, it determines what we can call equality at the starting line:

Each person, including members of future generations, really does have

the right to an equal share of external resources (but not more than

this, which certainly limits the right to pass it on and to donate)

[11]. Using this common rights theory we have a range of possibilities.

Strict egalitarians maintain that what I produce with privatized

resources is 100% taxable, as my qualities and talents, including the

results or “product” of applying my natural abilities to external

resources, represent a social resource [12]. As it goes without saying

that taxation at 100% (followed by an egalitarian redistribution via a

common fund) would have the effect of discouraging productive effort,

the tax rate is lowered for pragmatic reasons. But strict egalitarians

maintain that the product is fully taxable because third parties can

rightly claim that it would not be produced at all without using common

resources. They also maintain that this position is compatible with the

principle of self-ownership insofar as this ownership over self does not

give any right over external resources without the agreement of third

parties. But again, this position is not very realistic and is a good

illustration of the instability of the system: If the whole of what I

produce by applying my personal qualities to external resources is

taxed, the principle of self-ownership is as empty as where the rule is

the common ownership of external things, with the consequence that I

cannot so much as use them without the agreement of others.

Even if we abandon the idea that it would be legitimate (but not

sensible) to tax the revenue from the use of 100%-appropriated

resources, the most egalitarian version of the left-wing libertarian

theory finds it difficult to accept that equality of initial shares

immediately translates into obvious inequality as a result of the

unequal distribution of personal qualities and talents. It therefore

maintains that, at the starting line, equal distribution of natural

resources should mean real equality, and not merely a nominal equality.

For that, however, we have to consider it not as equality of resources,

but as equal possibility of accessing well-being or benefits. As, of

course, individuals have unequal abilities to convert resources into

well-being or benefits, we need to take into account differences in

talents and skills and stop such differences translating into initial

inequalities, and it is therefore legitimate to give more resources to

those who have a lower ability to convert them into well-being or into

real benefits [13].

On the other hand, there is no obstacle in principle to the idea that,

having moved on from the starting point, individuals will bear the

consequences of life’s vicissitudes alone and that, under the impact of

differences in circumstances, considerable inequalities can develop from

a starting point that was identical for all. In other words, if we

accept that the requirements of egalitarianism can only be exercised

under the constraint of respecting self-ownership, we also accept that

equality is not the only moral imperative and that respecting

individuality is also a source of legitimate demands that should be

combined with the other demand, which derives from equality. From this

we will conclude that there is no opposition in principle to the fact

that individuals who initially benefited from equal conditions in terms

of possibilities for access to well-being can consequently benefit from

the advantages that they procure through the game of chance [14]. The

imperative is not in fact to neutralize chance, but to equalize the

initial set of possibilities for individuals to access benefits. As has

been said, this can allow additional initial benefits to be given to

those who have a lower ability to transform external resources into

well-being (which in fact means considering people’s natural qualities

as a resource which should be equalized), while at the same time

opposing the idea of systematically compensating the effects of the

arbitrary. The rule here will always be pragmatic: If compensating for

the effects of pure chance results in reducing the value of equal

initial access to well-being, we should not do this. What is contestable

is not the fact of compensating the effects of pure chance, but the fact

of giving this form of compensation an absolute value regardless of its

consequences, because, on this hypothesis, the equality requirement

would unconditionally dominate the self-ownership requirement [15]. As

for the advantages of chance, each person can therefore claim to keep

for himself a quantity as large as is compatible with everyone else also

having equal opportunities for access to as much well-being as possible.

But it is clear that if the consequence of not protecting individuals

against the negative effects of chance were that society as a whole

would have fewer resources (and that the equal share granted to each

person would therefore be reduced), the refusal to compensate the

disadvantages due to chance would become counterproductive.

The same kind of pragmatic consideration will be applied to the question

of responsibility. The objective of this kind of left-wing

libertarianism is not to ensure that individuals morally accept

responsibility for their choice, but to maximize the value of the

initial stock of possibilities for access to advantages that each person

can at first enjoy equally. But if we claim that the effects of choices

will never be compensated and that the effects of pure chance (brute

luck) will only be compensated to the exclusion of any option luck, we

are likely to completely discourage risky choices. But in fact such

choices generate resources which help to compensate the effects of pure

chance and to increase the value of the initial stock of opportunities

to access benefits; the idea of never compensating the negative effects

of some choices is therefore a bad idea, because never protecting

individuals against the negative effects of their choices risks leading

to a situation where there are fewer resources to protect these

individuals against the effects of pure chance, and fewer resources in

general to allow them to access well-being. It would therefore be unfair

to claim that there should be no transfer that is motivated by

individual choices; on the contrary, we see here that those who have

made choices, the consequences of which are that they are more exposed

to some risks, are entitled to benefit from some transfers from those

who chose comfortable inaction and who refused to take the least risk.

The choice not to take risks is taxed, and it is fair that the person

who has not taken any risk should contribute towards funding the

insurance which organizes transfers to some people who have taken risks

and failed. The fact that there are people who take risks is in fact an

advantage for everyone because, in this instance, if everyone chose not

to take any risk, all would be penalized, compared with a society in

which some agree to take risks and thus generate additional resources

which increase the equal share of opportunities to access well-being

that all can enjoy at the starting line. Therefore there is no reason to

claim that as soon as individuals have been equalized, in a relevant

way, each person has to agree to bear the consequences of his choices

alone, because it is very possible that by diverging from this rule, we

can better guarantee the equality of individuals in a pertinent way,

because risky activities would have been encouraged and this would

therefore have released more resources to raise the level at which

individuals are guaranteed equality, from this pertinent viewpoint.

However, the refusal to allow each individual to bear the consequences

of these choices alone is only motivated by pragmatic considerations and

not by a position of principle on the question of individual

responsibility. The issue is simply that if each person has to bear the

negative consequences of all his choices alone, some choices that are

socially very advantageous will be discouraged.

3 – Is self-ownership compatible with equal sharing of external

resources?

The assertion that society owes each person an equally beneficial share

of external resources (i.e., a share of external resources which gives

each person, with his mix of external and internal resources, an equal

possibility of achieving the same level of benefits or well-being) seems

to be the most attractive version of the left-wing libertarian position,

insofar as it subjects the distribution of personal qualities to the

egalitarian requirement. Is it compatible with an assertion of

self-ownership that is sufficiently substantial for it not to be drained

of its content?

First we should recall that in the initial assumption itself there is

the idea that self-ownership does not confer rights over any share of

external resources. Generally speaking, self-ownership is compatible

with the absence of the possibility of using anything, even if, in this

kind of case, the right of self-ownership becomes meaningless.

Then we observe that the right of self-ownership guarantees that if I

have produced something solely by the use of my person (assuming that

this is possible) I have the right to the product of my work; but it

says nothing about the things that I have produced with the essential

support of external resources and it does not automatically give me

ownership except to establish that I had the right to those resources

and that I paid others the necessary compensation for making them

unavailable for use by anyone else.

Therefore the only question is not whether the egalitarian distribution

of external resources is compatible with the right of self-ownership,

(as this follows from the assumptions), but what form of egalitarian

distribution is compatible with this right in practice. It is therefore

a question of determining the point at which an egalitarian policy

ceases to be legitimate because it challenges the actual reality of the

right of self-ownership. It should be noted that it is not a question of

redistribution since, a priori, individuals do not possess anything;

contrary to appearances it is therefore not a question of taking from

some to give to others, but of distributing equally what belongs to

everyone (to which everyone has an equal right). The difficulty of

course is to understand how this is possible over time, and when things

have already been appropriated. The solution involves showing, as we

have seen, that appropriations are only conditional and are subordinate

to the right of each individual to have a suitable share of external

resources, which involves each appropriator paying into a common fund a

fee for his use of common things, and that it is from this common fund

that the equal shares of those who are not direct appropriators and the

members of subsequent generations are formed.

It should not be forgotten, however, that assigning to each person a

quantity of resources that allows everyone equal possibilities to access

advantages is an egalitarian objective which cannot be tempered or

balanced by the self-ownership requirement. To better understand the

consequences of this idea, let us imagine a desert island inhabited by

two individuals, one of whom (Incapable) is severely disabled and has a

very low ability to convert material resources into well-being, whereas

the other (Capable) has on the contrary a very strong ability to carry

out this kind of conversion. The theory of left-wing libertarianism

demands that Incapable is assigned many more resources than Capable, but

it recognizes a limit: If Capable cannot survive with the resources

assigned to him in his own right and if he is forced to work for

Incapable on the latter’s terms, his self-ownership remains in principle

but it loses its reality. The limit of equal sharing (and not of

redistribution) is therefore the possibility for each person to

reproduce his existence in an independent way [16]. And yet, in a real

society, especially in a rich society, the equalization process (the

fees owed by appropriators to the common fund that is intended to

provide equal shares for non-appropriators and members of new

generations) never goes so far that the appropriators who pay the fee

become slaves [17].

The idea here, then, is that we can allow a right of self-ownership to

remain while at the same time cancelling any unequal consequences it has

or may have. This right is not questioned as long as each person can

avoid forced labor and has sufficient resources to continue to live by

voluntary exchanges with others. It is therefore not true that if one

allows the principle of self-ownership to remain, its inevitable

consequence is an inequality and finally a dependency on each other; the

reason for this is that these consequences can be avoided without

affecting the right itself, which remains real as long as no-one is

forced to work for others. Conversely, neither is it true that

introducing a structural requirement inevitably results in the person

himself being subjected to the collective viewpoint of equality.

So it appears possible, with a group of individuals who vary greatly in

terms of talents and ability to convert resources into well-being, to

annul the tendency of the principle of self-ownership to produce

inequality coupled with dependence. This annulment could occur by

distributing the ownership of external resources, which would be in line

with the egalitarian premise. In a society in which resources are

distributed according to this principle, those least able to convert

resources into well-being would be very generously equipped with

resources, and they would have the possibility to achieve a level of

well-being equal to those who have fewer resources but more ability to

convert them into well-being. But that does not mean that the most able

would be obligated to assist the least able or forced to work for

others, thereby calling the principle of self-ownership into question.

We would be satisfied with organizing a resource distribution which

compensates the lack of ability to convert these resources into

well-being through an increase in resources. Therefore for the less able

it is not a question of demanding that the more able should give them

part of their work (which would indeed contradict the self-ownership

principle). Quite the contrary, those who are less able to convert

resources into well-being do not say that they have the right to be

helped by others, but that they have the right to an equal amount of

possibilities to access well-being, and that they therefore have the

right to a share of resources (given their ability to convert these into

well-being) which they need to be able to access an equal quantity of

well-being compared with those whose ability, from this point of view,

is greater. Those less talented (in converting resources into

well-being) are not parasites; they simply claim the share of external

resources that they are entitled to.

Nozick claims to legitimize considerable inequalities based on each

person’s right to own himself and not to be forced to work for others

(i.e., the separate and inviolable nature of the individual), but the

left-wing libertarian theory also seems to satisfy this principle of

self-ownership, and even in a much better way, since it guarantees

everyone a right of self-ownership which is more than theoretical. In

fact, with Nozick the principle of self-ownership is only partially

satisfied since those who have nothing are owners of their own person,

but they cannot exercise this right because they are forced to work for

others. Nozick’s theory gives them no guarantee against this

possibility. On the other hand, the version of the left-wing libertarian

theory that we have mentioned includes such a guarantee for all: The

best equipped will not be forced to work for others because the

egalitarian pressure is contained by the personal imperative, which does

not want anyone to ever be deprived of the resources needed to reproduce

his existence in an independent way, but those who are less well

equipped have the assurance that they will not be refused access to an

equal share of external resources.

The objection is of course that this is all impractical because the

world is not a stock of unowned resources. But this is irrelevant,

because the members of each generation have an enduring right (and we do

not see on what grounds they could be deprived of it) to own a quantity

of external resources which allows them to achieve equal well-being. The

egalitarian premise as it is understood here should therefore be

extended to members of all generations: each person should retain

sufficient resources to procure an equal quantity of well-being. Each

generation should therefore make sure that, when it dies and the

following generation arrives, the same quantity of unowned resources is

accessible to the new generation. Each generation would therefore find

the same quantity of unowned resources in the world that the previous

generation had found there.

Left-wing libertarians note that to uphold such a solution it is

necessary to prohibit significant gifts from one person to another

within a given generation, when those gifts change the level of

well-being which individuals are able to achieve, to such a degree that

it offends equality, unless this disruption can be justified by the

self-ownership requirement and the independence resulting from it. But

we do not see why this ban on giving what we have produced by

interacting with external things would violate our right of ownership

over ourselves; it is at most a restriction on our use of external

things (we have the right to use them during our lifetime but not to

bequeath them to our descendants, or to pass them on for free to a third

party).

So the conclusion is indeed that, whatever the practical problems, there

is no contradiction in principle between asserting the validity of the

principle of self-ownership and asserting a principle of equality in

distributing external resources. But this equality does not result from

redistribution, since the fees paid by the owners are not a payment for

what they own by right, but a payment required to respect the condition

of the legitimacy of their appropriation. Why, then, should it be

surprising that those who have gained more than their share of external

resources should pay a substantial tax to allow others to appropriate a

suitable share of those same resources [18]?

4 — Cohen and the fundamental instability of left-wing

libertarianism

The analyses proposed by Gerry Cohen in his book Self Ownership, Freedom

and Equality show that any attempt to combine the principle of

self-ownership with equality ownership over external things is doomed to

fail [19]. The main objection to the left-wing libertarian theory is

identical to that made against any “non-structural” theory which settles

for defining fairness through a theory of initial acquisition, without

agreeing to submit the product of individual interactions to a

structural criterion of fairness; it defines a fair situation (each

person owns his own self and each person has an equal quantity of

possibilities to access benefits), and it supposes that the fairness of

this situation is preserved for as long as the parties act fairly. But

this premise is not sustainable because it contains a circular argument

that Cohen explains clearly: We cannot define a fair situation as a

situation which only contains fair actions, because the very definition

of a fair action implies the concept of fairness that it serves to

define. We therefore need a concept of fairness which allows us to

define a fair society other than as a society which only contains fair

actions; in other words, we need a concept of fairness which is not

historical but structural.

The famous example of Wilt Chamberlain helps us to understand this [20]:

Chamberlain is an exceptional basketball player and, every year, there

are a million people who agree to voluntarily pay a quarter of a dollar

to see him play. Whatever the initial distribution of resources that is

defined at the beginning of the year and is considered to be fair, it

has been significantly changed at the end of the year, because now

Chamberlain has a quarter of a million dollars more than at the start of

the year. We have therefore moved from distribution D1 to distribution

D2, and the libertarians’ argument consists of saying that if D1 is fair

and if no-one, when moving from D1 to D2, behaved in an unfair way, D2

cannot be unfair; neither basketball fans who each gave 25 cents, nor

Chamberlain, behaved unfairly because they only did what they had the

right to do; therefore D2 cannot be unfair.

Cohen shows that this conclusion is not valid, thus agreeing with the

Rawlsian position, which states that the structural requirement is

essential for the consideration of fairness. The main reason is the

circularity of the argument that defines a fair action as an action

which does not constrain anyone, and a non-constraining action as an

action which does not prevent others from doing what they have the right

to do. The idea of constraint is used in defining the idea of

entitlement and, conversely, the idea of entitlement is used in defining

the idea of constraint. If we apply this comment to the Chamberlain

case, it produces the following result: It is not possible to say that

an equalizing tax which takes a share of Chamberlain’s profits is an

infringement of his freedom, without introducing the idea that Wilt

Chamberlain and the spectators have a perfect right to act as they do.

Indeed, without this idea of entitlement, it is the simple fact of

preventing Chamberlain from acting as he intends which represents a

restriction on freedom, but this assertion would mean, for example, that

the fact of preventing the poor from moving onto the land or into the

gardens of the rich is also a restriction on their freedom. And yet if

we want to prevent this absurd consequence and highlight the difference

between Chamberlain’s behavior and that of the squatters who move onto

your lawn without your permission, we have to introduce the idea that

Chamberlain has the right to act as he does and that the squatters, on

the contrary, do not have the right to act like they do. Taxation cannot

limit X’s freedom unless X has the right to act as he does. And yet,

when Nozick begins to explain what is meant by the fact that Chamberlain

has the right to act as he does (and that therefore we do not have the

right to prevent him from doing so or to tax his profits more than is

needed to maintain the minimal State), his only response is to say that

he is not forcing anyone and that he is not harming anyone by acting as

he does. The circularity of the argument is therefore obvious. We cannot

define a fair situation simply as one that only contains fair actions,

and fair actions as actions that do not constrain anyone, because the

very idea of an action that does not constrain anyone must necessarily

contain the idea of entitlement and, consequently, of fairness.

The construction proposed by left-wing libertarianism cannot avoid this

criticism insofar as it remains a “historical” theory of the fairness of

initial acquisitions. It defines a fair situation as one in which each

person owns himself (criterion A) and each person owns an equal share of

external resources (criterion B). It then supposes that if, in this kind

of situation, only actions which are themselves fair occur, i.e.,

actions which do not directly harm self-ownership and equality in

sharing external resources, the result is necessarily fair. But this is

not true because the fairness of the initial situation can disappear

without anyone behaving in a way that is deliberately unfair, i.e.,

without anyone behaving in a way that questions each person’s

self-ownership, and without anyone trying to appropriate more than an

equal share of external resources. And we cannot reply that this is

impossible on the grounds that a fair situation is defined as one which

only contains fair actions, because this is a circular argument. The

definition of the fairness of a society cannot lie in the fact that it

only historically contains actions which people had the right to carry

out.

To understand the importance of this point let us imagine a form of

left-wing libertarianism which would not allow the quantities of

resources allocated to each person to be compensated by their ability to

convert those resources into well-being and benefits; such a theory

would be open to serious objection because differences in talent or

ability will inevitably lead to inequalities which destroy the reality

of self-ownership for some members of society by depriving them of the

means to exercise this independently. Similarly, if we imagine a version

of the theory which allows the quantities of resources to be compensated

by the ability to convert them into benefits, it is still more open to

objection here, because the effects of pure chance will again create

inequalities incompatible with the reality of the principle of

self-ownership for all. But we have seen that the left-wing libertarians

who are committed to initial compensation for differences in talents

reject the principle as being a form of permanent regulation and they

impose a condition on the neutralization of chance, which is that this

neutralization must maximize the initial equal stock of possibilities

for access to benefits that each person receives at the start. But,

obviously, maximizing the initial stock with which each person starts,

protects no-one against the possibility of becoming dependent on others

and being deprived of the means of independence. The left-wing

libertarian option therefore allows a series of actions which comply

both with the principle of self-ownership and the principle of an equal

share of external resources (including the principle of compensation for

initial inequality of talent), while allowing chance to distort the

relationships of equality and non-dependence, resulting in non-respect

of the principle of self-ownership. In this approach, nothing allows us

to identify the result of interactions as unfair if the result is the

product of a series of unfair actions. The dependency into which some

members of society can fall (either due to inability or bad luck) cannot

be considered unfair because it is the result of a series of actions

that individuals have the right to carry out. But as the definition of

fair actions is tainted by an obvious circularity, the conclusion cannot

be maintained. Actions which unintendedly cause some members of society

to fall into dependency, are defined as fair because they do not

directly constrain anyone and they do not constrain anyone because they

do not prevent any individual from doing what he has the right to do.

But if an action is defined as fair because it does not prevent anyone

from doing what he has the right to do, it is not possible to define a

fair society as a society which only contains fair actions. Again we

need an independent criterion of social justice and we should say that

if the effect of a series of actions is that some members of society

fall into dependency and can no longer give concrete meaning to the

principle of self-ownership, it is unfair and the actions which lead to

this are in turn potentially unfair and likely to be curbed or

controlled [21].

Again, the most important question is not who has acquired what and how,

but whether all individuals have the means to be free and to function as

free and equal citizens. A structural consideration clearly helps to

escape the circularity which defines legitimate actions by the lack of

constraint and defines non-constraining actions by their legitimacy. The

structural consideration claims that an action is fair if it does not

have the effect of depriving any individual of the means to be free and

to function as a citizen of equal value. If the principle of

self-ownership and the principle of fairness in acquiring external

things prohibit or do not guarantee access for all to autonomy (as is

inevitably possible), we are faced with a dilemma: We must either accept

unequal freedom, so an unequal valuation of individuals, or we must

abandon the unconditional nature of self-ownership which, combined with

an initial egalitarian distribution of external resources, does not

allow us to guarantee everyone the reality of freedom by actually

possessing the means of autonomy [22]. The left-wing libertarian theory

either moves towards a classic libertarianism (if it accepts that the

initial principles can legitimately result in a situation where the

reality of self-ownership is no longer guaranteed for some), or towards

an unconditional egalitarianism (if it accepts the idea that considering

the reality of the principle of self-ownership for all is an

unconditional value). Cohen himself opts for this second solution:

Fairness cannot recognize unconditional privilege focused on the

individual because in circumstances where respecting this privilege is

an obstacle to the freedom of all, privilege must give way, and we come

back to the idea that the individual’s right over his own person and his

talents is subordinate to the legitimate (therefore mutually

advantageous and reciprocal) nature of the structure of relations

between people.

The solution proposed by Cohen is of course based on the idea that work

is pointless and uneconomic unless it is combined with external

resources or, at least, with productive elements—such as

training—whereby individuals cannot say that they are the only authors.

But these resources are common and they imply that the person who

appropriates them, and which are the basis of his freedom and autonomy,

is answerable to others who have not been able to appropriate those

resources under the same conditions, which they need in order to

exercise their own freedom and autonomy. It is not a question of whether

and how the initial equal sharing of external resources is compatible

with the exercise of freedom, but a matter of showing that those who

achieve autonomy by using external resources are constantly operating

under equivalent condition (in terms of value) as those who are not able

to achieve it. This is merely another way of saying that freedom cannot

be legitimately effective for some if it is not effective for all, or

that freedom implies a form of equality.

The existence of this accountability and the contribution which

consequently weighs on those who are the best equipped is by no means

similar to forced labor, or to some people being placed at the disposal

of others. It is true that these obligations do not have to be

contractual to be legal, but they cannot be reduced to a form of

slavery, not only because they are compatible with freedom, defined as

having the legal and material conditions to exercise autonomy, but

because they are indeed implied by freedom as, without them, some

members of society would be deprived of these conditions and the

equality of status which allows them to function as full members of this

society.

It is precisely this position that libertarians of the right, like

Nozick, contest, by arguing that we actually face an all-or-nothing

logic: Either we own ourselves, our own person, and we do what we want

without ever being obligated to give others the help that we have not

contractually agreed to give them; or the reverse is true, that we can

be legally obligated to give help to others that we have not

contractually agreed to give them, in which case we cannot really be

autonomous. But, Cohen says, it is wrong that, in a society, autonomy

(which presumes access to material resources, something which is

recognized by right-wing libertarians) is necessarily always maximized

by the principle of unconditional self-ownership (without any

redistribution). There are very good reasons to believe that in a world

of chance, where individuals are equipped with very different talents,

the principle of unconditional self-ownership will lead to situations

where some will be deprived of access to the means of production and

that, consequently, they will not have the conditions needed to exert

the form of control over their own existence that we associate with the

idea of autonomy, and this remains true even if we combine the

self-ownership principle with the principle of equal division of

external resources. From this we conclude that if we want all members of

society to benefit equally from a certain degree of autonomy, the

self-ownership principle must be limited, because implementing this

unconditionally or conditionally may very well not have the effect of

maximizing autonomy; in any case, it may in fact not succeed in

maximizing the autonomy of those who have the least. It should also be

noted that an individual’s autonomy does of course vary depending on the

rights that he can exert over himself, but also on the rights that

others have over themselves; thus if another person has full rights over

his own talents, he may manage to reduce me to proletarian status,

thereby reducing my autonomy. Therefore it is quite simply not true that

autonomy is maximized when each person has an absolute right over

himself. The theory may be paradoxical but it is sustainable and we are

therefore entitled to put forward the following idea: Restricting the

ownership right that each person has over himself could indeed have the

effect of creating autonomy, and it is not self-ownership as such that

creates autonomy but a certain restrictive use of this self-ownership.

If we have to choose between the free exercise of self-ownership (which

would harm autonomy) and the imposition of restrictions on this

self-ownership (which would favor autonomy), we should choose the second

solution.

[1] Robert Nozick, Anarchie, État, Utopie, trans. from English by

Evelyne d’Auzac de Lamartine, Paris, PUF, 1988

[2] Peter Vallentyne, Hillel Steiner et Michael Otsuka, “Why

Left-libertarianism Is Not Incoherent, Indeterminate, or Irrelevant: A

Reply to Fried”, Philosophy and Public Affairs, 33, n° 2, 2005, 201–215.

[3] Peter Vallentyne, “Left-Libertarianism, a Primer”, in P. Vallentyne

and H. Steiner (dirs.), Left-Libertarianism and its Critics, New York,

Palgrave Macmillan, 2000, 1–20.

[4] Michael Otsuka, Libertarianism without Inequality, Oxford, Oxford

University Press, 2003, p. 23; Peter Vallentyne, “Robert Nozick”, in

John Shand (dir.), Central Works of Philosophy, vol. 5, The XXth

century, Quine and after, London, Acumen, 2006.

[5] Mathias Risse, “Can there be ‘Libertarianism without inequality’?

Some worries about the coherence of left libertarianism”, Kennedy School

of Government, Harvard University, working paper RWP 03–044, November

2003, available on the Social Science Research Network (SSRN):

ssrn.com

[6]

M. Otsuka, Libertarianism without Inequality, op. cit., 31.

[7] Peter Vallentyne, “Left-Libertarianism, a Primer”, op. cit.

[8]

M. Otsuka, Libertarianism without Inequality, op. cit., 24; Hillel

Steiner, “How Equality Matters”, Social philosophy and policy, n°

19, 2002, 342–356.

[9]

P. Vallentyne, “Left-Libertarianism, a Primer”, opt. cit, 10–11

[10] Henry George, “The Injustice of Private property in Land”, in P.

Vallentyne and H. Steiner, The Origins of Left-Libertarianism: An

Anthology of Historical Writings, New York, Palgrave, 2000, 193–216.

[11]

P. Vallentyne, “Left-Libertarianism, a Primer”, op. cit., p. 19; M.

Otsuka, Libertarianism without Inequality, op. cit., p. 37–38;

François Huet, Le règne social du christianisme, Paris, F. Didot,

1853, 266–275.

[12]

P. Vallentyne, “Self Ownership and Equality: Brute Luck, Gifts,

Universal Domination and Leximin”, Ethics, 107, n° 2, 1997, 321–343;

Hillel Steiner, “How Equality Matters”, op. cit.

[13]

M. Otsuka, Libertarianism without Inequality, op. cit., p. 25;

Richard J. Arneson, “Equality and Equality of Opportunity for

Welfare”, Philosophical Studies, vol. 56, n° 1, 1989, p. 77- 93.

[14]

P. Vallentyne, “Brute Luck, Option Luck, and Equality of Initial

Opportunities”, Ethics, vol. 112, 2002, p. 529–557; P. Vallentyne,

“Brute Luck, Equality and Desert”, in Serena Olsaretti (dir.),

Desert and Justice, Oxford, Oxford University Press, 2003.

[15] Peter Vallentyne, “Self Ownership and Equality…”, op. cit.

[16]

M. Otsuka, Libertarianism without Inequality, op. cit., p. 32.

[17] Ibid.

[18] Ibid., p. 35.

[19] Gerald A. Cohen, Self-Ownership, Freedom and Equality, Cambridge,

Cambridge University Press, 1995, p. 102–111.

[20] Ibid., chap. 1.

[21] Ibid., chap. 9–10.

[22] Ibid., chap. 9–10.