I’ve often argued against John Rawls’s theory of justice, and readers who see my title might be thinking to themselves, “Not another post on Rawls!” These readers can rest easy; this is not another post attacking Rawls. (It isn’t, of course, a post that says Rawls was right.)

Instead, I want to use an argument someone directed against Rawls to illustrate a basic principle of how we should read texts. I believe the author of the comment, who is an excellent pro–free market philosopher, violated this basic principle, and what I’d like to do in this week’s article is show how he did this. I won’t say who he is, as his comment was made on a private forum.

To understand the situation, we need some background. Robert Nozick claims that Rawls’s theory is an example of what he called a patterned theory of justice, and he uses his famous Wilt Chamberlain example against theories of this type. In this example, each person receives the amount of money that the patterned theory prescribes. As an example, let’s assume that each person starts off with an equal amount of money, though this isn’t Rawls’s own theory. Wilt Chamberlain sets up a basketball court in his free time after work and charges twenty-five cents for people to watch him shoot baskets. Many people pay to watch him, and as a result Wilt’s equal share of money at the start has become a much larger amount of money than most other people have. (I say “most” rather than “all” because there might be other voluntary transfers of money going on at the same time that leave some other people besides Wilt better off than most.)

One more bit of background is needed. Although the most famous part of Rawls’s theory is the “difference principle,” which mandates that inequalities be to the advantage of the least well-off class in society, this is only part of the second principle of justice. There is also a first principle, which requires equal liberty for all. The first principle has “lexical priority” over the second, which means it can’t be sacrificed to enable the second principle to be satisfied better. You can’t, for example, restrict someone’s freedom of speech even if doing so would make it easier to fulfill the difference principle. Imagine, say, that shutting down mises.org would decisively weaken opposition to redistribution of income. Rawls wouldn’t allow this.

After Nozick presented the Wilt Chamberlain example in Anarchy, State, and Utopia (1974), the philosopher Thomas Nagel criticized the example, and many other things in the book as well, in a review called “Libertarianism without Foundations.”

This is where the new criticism of Rawls, and Nagel along with him, enters the scene. The critic says this:

Nagel’s “Libertarianism Without Foundations” offers some pretty weak criticisms of Nozick. Consider Nagel’s take on the Wilt Chamberlain argument, an argument that alleges enforcing a patterned principle of distributive justice violates liberty:

“It only seems a problem to Nozick, and a further violation of liberty, because he erroneously interprets the notion of a patterned principle as specifying a distribution of absolute entitlements (like those he believes in) to the wealth or property distributed. But absolute entitlement to property is not what would be allocated to people under a partially egalitarian distribution. Possession would confer the kind of qualified entitlement that exists in a system under which taxes and other conditions are arranged to preserve certain features of the distribution, while permitting choice, use, and exchange of property compatible with it.”

But Nagel’s criticism misses Nozick’s point. Rawls himself recognizes that ownership of personal property is a basic liberty on a moral par with freedom of speech and bodily autonomy. Thus, your right to transfer your personal income to watch Wilt play is protected as an exercise of a basic liberty, by Rawls’s own standards.

To make this point clearer, look at how implausible Nagel’s response to Nozick is when applied to other basic liberties. Imagine that Twin Rawls endorsed a patterned principle of blood distribution: “Distribute blood in the way that maximizes the welfare of the worst off.” Twin Nozick objects that this patterned principle violates bodily autonomy because it will require compelled blood donations. Twin Nagel replies that Nozick misinterprets bodily autonomy—you only have the right to decide what happens to and in your body insofar as those decisions align with the patterned principle of blood distribution. Clearly Twin Nagel is the one who has the implausible interpretation of the right of bodily autonomy, understood as a basic liberty. Similarly, it’s Nagel, not Nozick, who has the mistaken interpretation of personal property ownership.

Let’s look at the critic’s argument. He is saying that Rawls made a stupid blunder. Rawls goes on at enormous length about the difference principle, but he fails to recognize something that is staring him in the face. Once he recognizes that the right to hold personal property is a basic liberty, it can’t be given up for the sake of the difference principle. The first principle has lexical priority.

It doesn’t seem credible that Rawls would have overlooked an obvious point that disables his entire enterprise, and if we look more closely, we see that Rawls’s acceptance of the right to hold personal property as a basic liberty is much more qualified than the critic thinks it is. Rawls does not mean that you are free to use all your personal property and income as you wish. In Political Liberalism (1993), Rawls says:

[A]mong the basic rights and liberties of the person is the right to hold and have the exclusive use of personal property. The role of this liberty is to allow a sufficient material base for a sense of personal independence and self-respect…. Two wider conceptions of the right of property as a basic liberty are to be avoided. Once conception extends this right to include certain rights of acquisition and bequest, as well as the right to own means of production and natural resources.

I am sure that, if asked, Rawls would have added “and transfer” after “bequest.”

Nozick’s criticism of Rawls isn’t that Rawls has violated his own acknowledgement that the right to hold personal property is a basic liberty. Nozick is saying to Rawls and other supporters of patterned principles: “According to your own theory, people have the right to a specified allocation of resources. But if they have this right, they can reallocate their shares in a way that will upset the pattern you want. You can’t deny them the right to do this, because you yourself specified that they have the right to this allocation of resources.” Nagel’s response is that we don’t have to take the right in question to be one to do whatever one wishes with the allocation. Note the crucial difference between Nozick and Nagel, on the one hand, and the critic on the other. Nozick and Nagel are arguing about what the right to an allocation specified by a patterned theory entails, not about what the right to hold personal property as a basic liberty involves.

Also, the critic is mistaken in thinking that it follows from taking the right to hold personal property to be a basic liberty that Rawls cannot consistently favor more limits to property ownership than to bodily integrity or free speech.

The fundamental principle of reading that I want to emphasize is that, unless there is very strong evidence, we should avoid attributing to someone an error it would be hard to overlook. The critic ignored this principle and thus thought he had an easy refutation of Rawls. Refuting him isn’t that easy.

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