Since the most essential benefits of state accrue to everyone the goods are public and non-exclusive the

e state may extract from everyone their indiv fair share of taxes as well as obedience

The belief in the basic fairness of the system does not require one to endorse the resulting distribution at any given time as fair on its own, only to hold that overall the system rewards (and penalizes) its participants according to fair rules that apply equally to all. Neither does the belief in the system's basic fairness preclude the adoption of a system of redistribution

Robert Nozick uses Locke as a foundation for his explicitly capitalist theory of property rights (Nozick, 1974). Nozick specifies two principles: justice in acquisition and justice in transfer, and claims that if these principles are not violated, whatever property distribution that results is legitimate (1974:150 153). How is property justly acquired? Nozick draws on Locke's account, but with a subtle change. Nozick interprets Locke's first proviso to mean that initial property acquisition is legitimate if no one else's position is worsened by the acquired property's being removed from common access (1974:178182). Nozick's proviso can thus be satisfied by most capitalist accumulation, which increases the basket of goods available to the whole population, even as it concentrates the ownership of property, and the power that property confers on its owners, in the hands of a few. Once property is legitimately acquired, it can be exchanged or transferred freely, as long as there is no force or fraud, even if this further concentrates property in the hands of a few.

Nevertheless, Locke and Nozick articulate two powerful intuitions about property rights that the acquisition of property rights, because it inevitably affects the position of others in society, must take place according to fair rules, but that once property has legitimately been acquired, its owner should be protected in its enjoyment. And while capitalism cannot help but reward (or punish) certain kinds of luck, we certainly cannot be said to deserve our luck. But the entitlement theory of justice cannot distinguish between these different kinds of inputs to the distribution of rewards. Justice as fairness rejects the purely formal equality of the entitlement theory of property. In a society governed by the entitlement theory of justice, individuals have formal equality to appropriate and

accumulate, but inequalities arise in the first generation from differential efforts, inclinations, talents, and luck, and in subsequent generations from these factors and from differential inheritance as well. Justice as fairness views all these factors as morally arbitrary and undeserved, and therefore subject to the redistributive effect of the difference principle. By ensuring that the inequalities that result from these factors benefit the least advantaged, Rawls attempts to establish a more substantive equality.

While very different, they Nozick and Dworkins both provide individuals with a sense of entitlement to determine how much of what is legitimately their own they are willing to redistribute to those less fortunate (and therefore, on the basis of their theories, less deserving), and under what conditions. individuals in subsequent generations begin their lives advantaged or disadvantaged for morally arbitrary reasons of birth, not for being industrious. (This effect is more pronounced under Nozick, but exists as well under Dworkin's scheme.) In round one, property goes to the industrious; in round two it goes, at least in part, to those who are chosen by the industrious.

For Nozick, this poses no problem, because he is in fact less interested in justifying initial property acquisition than in defending the owner's right to do as he or she pleases once legitimate property acquisition has somehow occurred what he memorably calls capitalist acts between consenting adults (1974:163). His concern for the liberty of property owners to dispose of their property as they see fit prompts him to propose a one-time redistribution according to any theory of distributive justice one wishes. After that, he claims, individuals voluntary actions will upset the pattern that has been imposed, and maintaining the pattern will require preventing certain mutually advantageous exchanges between individuals or repeated redistribution of assets, both violations of liberty (1974:160164). Of course, redistribution of assets is only a violation of liberty if property rights confer absolute rights on the owners of property, and it is here that Nozick's argument fails. The benefits of capitalism, not liberty alone, justify the initial appropriation of property, but when capitalism's negative effects emerge, a narrowly defined liberty is somehow the only thing that matters.6 A man with much property has great bargaining strength and a great sense of security, independence, and freedom; and he enjoys these things not only vis-a-vis his propertyless fellow citizens but also vis-avis the public authorities. He can snap his fingers at those on whom he must rely for an income; for he

can always live for a time on his capital. The propertyless man must continuously and without interruption acquire his income by working for an employer or by qualifying to receive it from a public authority. An unequal distribution of property means an unequal distribution of power and status even if it is prevented from causing too unequal a distribution of income (Meade, 1993:41). For Nozick, liberty in the initial state is constrained by utilitarian arguments about how private appropriation, in violation of the liberty of others, improves, or at least does not worsen, the position of others. But in subsequent generations, the liberty of some trumps not only the liberty of others but utilitarian concerns as well.

suggests a way for capitalist societies to emulate the state of natural equality on a continually renewable basis.

We should certainly encourage people to hone and exercise their aptitudes, he says, but we should be clear that they do not morally deserve the rewards their aptitudes earn from the market. Since their natural gifts aren't their own doing, and are moreover profitable only in light ofthe value a community places on them, they must share the rewards with the community.

Only if society is better off as a whole does favoring inequality seem fair. Does this approach diminish the role of human agency and free will when it comes to moral desert? Some say it does, yet the claim seems modest enough, that our achievements have many ingredients, and the contributions from agency or free will are intertwined with the contributions from social and random factors to the point that it seems unreasonable to give by default all credit to agency or free will, which libertarians try to do in order to justify the rewards ofthe market.

Isaiah Berlin wrote, "people who want to govern themselves must

choose how much liberty, equality, and justice they seek and how much they can let go. The price ofa free society is that sometimes, perhaps often, we make bad choices." Thereafter, when the rules are in place, "we are entitled to the benefits the rules of the game promise for the exercise of our talents." It is the rules, says Sandel, and not anything outside them, that create "entitlements to legitimate expectations." Entitlements only arise after we have chosen the rules of the competition. spell that sees social outcomes as moral desert simple terms, moral desert is a condition by which we are deserving of something, whether good or bad), ..

Private property rights are said to follow from a natural endowment in one's labor; 6 from the moral desert that arises from labor;37 from the relation of property to personal identity; 8 or from the requirements of individual liberty and autonomy.39 Alternatively, rules establishing property rights are said to be justified by the instrumental contributions they make to utility or human welfare,40 or, more narrowly, to economic and political liberty within a society.4
40. See BECKER, supra note 1, at 57-74; JEREMY BENTHAM, THE THEORY OF LEGISLATION 109-13 (C.K. Ogden ed., Richard Hildreth trans., Harcourt, Brace & Co. 1931) (1802); MUNZER, supra note 1, at 191-226. 41. See BECKER, supra note 1, at 75-80; see also MILTON FRIEDMAN, CAPITALISM AND FREEDOM 7-21 (1962) (emphasizing the freedom-promoting principles of a free market society).

Finally, property rights expose fundamental conflicts among the different conceptions of justice-distributive, corrective, and retributive--that guide law.44 The dilemma of rules, therefore, is this: a well-crafted rule, if generally followed, may cause a net gain in welfare; at the same time, the rule will produce results that are imperfect by the same standard of welfare. Thus, from the point of view of the rule-making authority, or of anyone taking an overview of prior appropriation, it is morally correct to grant property rights to prior appropriators and require all others to respect the prior appropriators' rights. Yet, from the point of view of any actor who judges prior appropriation rights to be inefficient in a particular case, respecting the right will appear morally incorrect.57 This effect of rules is easiest to see when the governing moral principle is a consequentialist principle such as welfare maximization. Yet the point applies to deontological moral principles as well.5" Suppose that the property right granted to prior appropriators

of water is based on the appropriator's moral entitlement to the fruits of his or her labor, or is judged to be a fitting reward for the labor of appropriation. As long as there is room for disagreement over the scope of any appropriator's entitlement, the appropriate reward for appropriative labor, or the moral implications of others' interests in appropriating water, rules will be necessary to settle

They put resources to personally important uses and are proud of what they do with them. In other words, legal property rights become integrated into people's lives in ways that may be morally significant. Accordingly, loss of property, or even the threat of loss, has a significant impact on happiness, objective welfare, liberty, and maybe even personal identity." Of course, those who lack resources have an interest in property ownership as well.6" Reliance aside, resources are likely to generate more welfare when placed in the hands of those who formerly had few.7 Moreover, the arguments for redistribution are not limited to welfare: redistribution from those who have plenty to those who do not may provide transferees with a wider range of choice and greater breadth for personal development. 71 A more equal distribution of goods may also be more just in and of itself. Yet, if we take into account the effects of reliance and endowment, the costs of abrupt and significant redistribution are enormous.72

People are personally attached to their rights over things for prudential reasons that carry no moral weight.77 reflect a conflict between impartial morality and self-interest Existing property rights may be morally unjust, as measured by a patterned standard of distributive justice or by historical standards of justice in acquisition and justice in transfer. At the same time, disruption of established legal property rights may be a moral wrong to those who have arranged their lives around them. If this is the case, the question becomes which of two wrongs-the wrong of distributive injustice or the wrong of expropriation-is graver. Other theories of distributive justice are historical rather than patterned.' Nonpatterned historical theories of entitlement hold that current holdings are just if they were fairly acquired.97 In other words, justice in acquisition and transfer, rather than the justice of any current pattern of holdings, is the focus of moral concern.

A similar point can be made in connection with criminal sanctions. Criminal penalties for intentional taking or destruction of

property may be necessary to make historical entitlements meaningful: the threat of penalties gives the owner effective control by discouraging others from using the resources in question without the owner's consent.' 2' In exigent circumstances, however, appropriation may not be morally wrong. It follows that criminal penalties for the appropriation are not supportable on retributive grounds. Larry Alexander provides this example: A, a mean-spirited person, has an entitlement (through inheritance, say) to a rowboat. B, a child, is drowning. C takes A's rowboat over A's protest to rescue B, thus violating A's rights. C's act is "wrong," but what is Cs culpability? C deserves praise and reward, not blame and punishment, although C violated a right. 122