We argue that for theorists with a post-institutional conception of property, e.g., Rawlsians, there is no principled reason to limit the domain of distributive justice to tax and transfer-both tax policy and the rules of the private law are constructed in service to distributive aims. Such theorists cannot maintain a commitment to a normative conception of private law independent of their overarching distributive principles. In contrast, theorists with a pre-institutional conception of property can derive the private law from sectors of morality independent of distributive justice. Nevertheless, we argue, this does not entail that the private law, for pre-institutional theorists, must be sanitized of equity-oriented values. Non-libertarian pre-institutional theorists holding principled commitments to equity-oriented values are free to invoke either tax and transfer or the rules of the private law to attain them.

An ongoing tension exists within the Lockean tradition in political philosophy between the claim that each individual is the “Proprietor of his own Person” and the claim that nature is “that which God gave to Mankind in common.” The former claim points to a realm of discrete individual entitlements only formally equal in the sense of each individual having jurisdiction over his own person and not over any other person, while the latter points either to a collective entitlement to nature or to individual entitlements to substantively equal shares of nature. Were the two realms, that of persons and that of extra-personal nature, separate and independent, no tension would arise from the union of these two claims. But the realms are manifestly interconnected. Individuals acquire, use, labor upon, invest their time and energy on, and transform, more or less in accordance with their purposes, elements of extra-personal nature. And Locke and his followers believe that at least certain of these interactions with segments of nature give rise to individual property rights to the segments thereby appropriated, labored upon, transformed, or whatever. The traditional bridging notion is each person's right to his own labor which is seen as part of each person's proprietorship over himself. According to this tradition, if the right of each individual over his own person is to be respected, individual titles to appropriated, labored upon, or transformed nature must also be respected.

The task for anyone seeking to embrace all the strands within this Lockean heritage is to reconcile, a) this right to one's own labor and the (or some) system of private property rights tied to it (which system will include historical entitlement principles for legitimating later property configurations) plus the right of self-ownership (or some equivalent) which lies behind the right to one's own labor, with b) some distributionist ideal, at least with regard to natural resources.

The inequalities of wealth and fortune form a central part of the human condition, and these over time have been a constant source of social unease. Whether they should be praised and preserved or endured or corrected is an issue that produces uniform discord. One source of this difficulty in analysis stems from the possible ways in which these persistent inequalities arise. It is easy to condemn any differences in wealth created by the victor's expropriation of the vanquished's honest toil. It is far more difficult to condemn those identical differences when they are attributable to the thrift and foresight of the successful relative to the laziness or self-destructiveness of the impoverished. Furthermore, most find it morally ambiguous how best to respond to differences between persons that are the result of luck or chance, such that they do not reflect positively or negatively on either the character of those who have done well or those who have done poorly.

The question I wish to take up in this paper is whether competitive markets, as mechanisms that initiate the distribution of scarce goods, allocate those goods in accordance with what participants in those markets deserve. I want to argue that in general people do not in fact deserve what they get from market interactions, when “what they get” is determined by the competitive forces coming to bear on the market (the laws of supply and demand). This more general claim is meant to apply to all participants in the market (workers and their wages as well as capitalists and their profits). However, my strategy here is to focus on the particular case of the role of entrepreneurs, as I will define them, and whether they deserve the profits they reap in a competitive capitalist market. In particular, I will argue that the claim that entrepreneurs deserve their profits, when spelled out precisely, is indeed not plausible. Generalizing from this claim, I want to suggest how moral desert is inappropriate as a justification of market shares whenever competition determines the magnitude of those shares.

I should stress, though, the particularity of my central claim: it is that “(strictly speaking) entrepreneurs do not (strictly speaking) deserve their (strictly speaking) profits.” This is not to say that, for other reasons (for example, reasons of entitlement or utility), people should not receive the rewards doled out by a market. My claim is only that desert has nothing directly to do with it.

I am deviating significantly here from the usual strategy for denying the relevance of desert claims to principles of distributive justice.

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III.

Events in both Eastern Europe and the former USSR illustrate the intimate connection between economic and political processes. Those events also remind us that political and economic institutions are human creations, and that when those institutions are poorly designed, political-economic failure is a direct consequence. It is axiomatic, then, that the transition to stable and prosperous societies in those former Communist states requires careful attention to the design and implementation of democratic institutions.

A variety of arguments have been advanced that deliberation should be at the center of any good political regime in which there is popular self-government. Deliberation is to be the basis for lawmaking, that is, for the making of the collectivity's binding decisions. Thus, John Rawls says, “[O]f course, actual constitutions should be designed as far as possible to make the same determinations as the ideal legislative procedure.” This procedure, in turn, is defined as having laws that result from “rational legislators … who are conscientious, trying to follow the principles of justice as their standard.” These legislators “are not to take a narrow or group-interested standpoint.” Joshua Cohen broadly agrees with Rawls and characterizes Rawls's view as one that argues for a democratic politics that is built around public deliberation. Cohen says (agreeing with Rawls) that “an ideal pluralist scheme, in which democratic politics consists of fair bargaining among groups each of which pursues its particular or sectional interest, is unsuited to a just society.” John Dryzek shares these views and comments that the “essence of democratic legitimacy should be sought … in the ability of all individuals subject to a collective decision to engage in authentic deliberation about that decision.” Others have argued along similar lines, including James Bohman, Amy Gutmann and Dennis Thompson, David Gauthier, and Jurgen Habermas.

The article argues that free trade is required by any plausible conception of justice. Free trade is supported by a host of consequentialist and deontological reasons. Empirically, trade increases global and national wealth, and in particular helps the poor. Morally, those who benefit from protectionist laws are not deserving beneficiaries of wealth redistribution. Both economic theory and evidence amply warrant the view that trade is beneficial. Protectionism by rich countries is harmful, not only to those countries' consumers, but to producers in poor countries. Given this, and given the fact that protectionism is almost always the result of political pressure by inefficient producers, there is no plausible moral reason to support it. Protectionism by poor countries is equally harmful. Relying on the institutionalist literature, the article shows that protectionism is yet another bad institution that contributes to economic stagnation in those countries. The article considers and rejects two criticisms of free trade: the problem of stolen goods, and the pauper-labor argument.

This essay explains the inescapability of moral demands. I deny that the individual has genuine reason to comply with these demands only if she has desires that would be served by doing so. Rather, the learning of moral reasons helps to shape and channel self- and other-interested motivations so as to facilitate and promote social cooperation. This shaping happens through the “embedding” of reasons in the intentional objects of motivational propensities. The dominance of the instrumental conception of reason, according to which reasons must be based in desires of the individual, has made it harder to recognize that reasons shape desires. I attempt to undermine this dominance by arguing that the concept of a self that extends over time is constructed to meet the demands of social cooperation. Prudential reasons to act on behalf of the persisting self's desires are often taken to constitute the paradigm of reasons based on desires of the individual. But such reasons, along with the very concept of the persisting self, are constructed to promote human cooperation and to shape the individual's desires.

I could not write the essay I hoped to write. I hoped to write about cultural pluralism and moral epistemology by assuming that the first is the case and exploring what implications this may have for the second. But I soon realized that I do not know what cultural pluralism is. I do not mean that I have just belatedly discovered that the phrase “cultural pluralism” is used in different ways on different occasions. I mean that I realized that I myself did not know in what sense the phrase may be used which makes it relevant to the inquiry suggested by the general topic of this volume. So the following reflections are based on one assumption: The fact of multiculturalism cannot have much bearing on moral epistemology unless it bears on moral truths.

Suppose you are on a commercial airplane that is flying at 35,000 feet. Next to you sits a man who appears to be sleeping. In fact, this man has been drugged and put upon the plane without his knowledge or consent. He has never flown on a plane before and, indeed, has no idea what an airplane is. Suddenly the man awakes and looks around him. Terrified by the alien environment in which he finds himself, he searches for a door or window from which to make an escape. As luck would have it, he is seated right next to a window exit and he begins to pull the handle that will open the window. You are aware that opening the window exit at this altitude will cause the cabin to quickly depressurize and that this man, you, and probably several other passengers will be sucked out the window to your deaths. You desperately want to stop him from opening the window. Now assume that for some reason it is impossible to prevent him physically from performing the deadly act. Your only option is to rationally persuade him to leave the window exit alone. You cry out to him and, with both hands on the handles, he turns to face you and waits to hear what you have to say. What sort of argument would you make?

In 1992, the city of Boulder, Colorado, passed an ordinance forbidding discrimination against homosexuals in employment and housing. Two years later, voters in the state of Colorado passed a constitutional amendment forbidding the passage of local ordinances prohibiting this form of discrimination. The constitutional amendment did not mandate discrimination against homosexuals; it merely nullified ordinances such as Boulder's. The amendment was later struck down by the U.S. Supreme Court as unconstitutional.

I shall assume that a well-ordered state is one that promotes the freedom of its subjects. My question is what is the kind of freedom that the state ought to promote? This question is different from the question of what freedom is. It might be thought, for example, that freedom consists in the autonomous pursuit of valuable goals and projects, but that the state cannot directly promote this freedom. On this view, the state would not be able to make its citizens free. However, it might be able to do things that make it easier or more likely for them to be free. The freedom that the state promotes might be merely an aspect of or a condition for the freedom that really matters.

1. The question “Why do we have the rights we do?” obviously presupposes that we do have some rights; that is, that propositions of the form ‘We have the right to x,’ or of the form ‘We have the right to do (or to have) x,’ are true for certain values of x. The same issues would arise if the original question had been formulated, or were to be reformulated, as it sometimes is, in a purely existential manner, viz., “Why are there the rights there are?” I believe there is no difference between the two questions except a verbal one; at least, both of them share the same existential presupposition to the effect that there are certain rights. I mention this point for two reasons. One is merely to acknowledge the trivial but true point that the question in my title does have an existential presupposition. The second and more important point is that since I shall have very little to say about any actual rights, I would not want anyone to infer from my silence that I do not think we have any rights. I accept the presupposition of my original question, but I shall not dwell upon it.

2. One might ask my original question and mean by rights, legal rights, that is, rights identified through the legal provisions of some legal system. That is not the sense in which I pose the question. It is true that a legal positivist would be able to give no intelligible meaning to my question except by treating it as equivalent to asking, “Why do we have the legal rights we do?” However, since I am not a legal positivist, I want my question understood in another way.

INTRODUCTION

We look to rights for protection. The hope of advocates of “human rights” has been that certain protections might be accorded to allof humanity. Even in a world only a minority of whose inhabitants live under liberal democratic regimes, the hope is, certain standards accepted in the liberal democracies will gain universal recognition and respect. These include liberty of persons as opposed to enslavement, freedom from cruelty, freedom from arbitrary execution, from arbitrary imprisonment, and from arbitrary deprivation of property or livelihood, freedom of religion, and freedom of inquiry and expression.

Philosophers, of course, concern themselves with the theory of rights, and that is partly because of the ways questions of rights bear on fundamental normative theory. By far the most highly developed general normative theory has been utilitarianism. Now many opponents of utilitarianism argue that considerations of rights discredit utilitarianism, that utilitarianism yields conclusions about rights that we would normally regard as faulty, and that moreover, the reasons for regarding those conclusions as faulty turn out, upon examination, to be stronger than the reasons forregarding utilitarianism as valid. A valid theory cannot have faulty conclusions, and so thinkingabout rights shows utilitarianism not to be a valid normative theory.

Jeremy Bentham, the founder of the utilitarian movement in nineteenth century England, accepted the incompatibility of utilitarianism and “the rights of man, ” and rejected talkof the latter as “anarchical fallacies”. His great successor John Stuart Mill, however, argued that a perceptive and far–sighted utilitarianism supports strong rights both of democratic participation and of individual freedom of action.

For the students, while the numbers are up,… the problem that minorities face – and it is persistent – is that there is still too much of a patronizing air in the professional schools. And there's still too much of the notion that if you're here it must be because someone gave you a break and you're different and you really don't belong here. And indeed when my son went off to school four years ago… I really wanted to warn him about the atmosphere that you see on all too many campuses, diat if you're black and walking on campus, that all too many people look at you and say, “You must be an affirmative action product,” whatever that means to them. “You're here only at our good grace.” And no one's looking at the individual. Thinking about it in retrospect, I guess, in some ways I enjoyed an advantage in being [the only black in my law school class]. It was a terrible disadvantage in a lot of ways, but, because I was the only black, the one thing I never faced was anyone ever challenging my intellectual capability. The way they brought this off was to say, “Well, you're different. You're black but you're not really black.” I think it's a lot worse now…. Professional schools are hard enough as it is, and to constantly have the pressure of what others are thinking about you and wondering whether you really belong, that really is a difficult burden.

On the extreme wing of libertarian ideology are the individualist anarchists, who wish to dispense with government altogether. The quasi-legitimate functions now performed by government, such as the administration of justice, can, the anarchists claim, be provided in the marketplace.

George H. Smith

Moral grandstanding, or the use of moral talk for self-promotion, is a threat to free expression. When grandstanding is introduced in a public forum, several ideals of free expression are less likely to be realized. Popular views are less likely to be challenged, people are less free to entertain heterodox ideas, and the cost of changing one’s mind goes up.

Advocates of cosmopolitan ideals, to the extent that they engage with questions of institutional design, typically imagine replicating or refining existing, nation-state models of governance but on an international scale. This essay argues that cosmopolitan ethics need not go hand in hand with international government, and may be better served by a different approach. I explore the concept of degeneracy as a principle of institutional evaluation and design in international politics. Degeneracy is a characteristic of complex systems in which multiple components of the system offer overlapping (but not identical) functions, and is a key component in the robustness of such systems. Non-degenerate systems, by contrast, exhibit fragility in the face of adverse conditions. When applied to systems of governance, degeneracy commends polycentricity and allows for some evaluation of the robustness of different mechanisms and forms of polycentric governance. Cosmopolitan ideals are better served by providing alternatives to existing forms of governance than by building on them. I consider some concrete policy applications of this idea, focusing on immigration and intellectual property.

It is extraordinary, when one thinks about it, how little attention has been paid by theorists of the nature and justification of punishment to the idea that punishment is essentially a matter of self-defense. H. L. A. Hart, for example, in his famous “Prolegomenon to the Principles of Punishment,” is clearly committed to the view that, at bottom, there are just three directions in which a plausible theory of punishment can go: we can try to justify punishment on purely consequentialist grounds, which for Hart, I think, would be to try to construct a purely utilitarian justification of punishment; we can try to justify punishment on purely retributive grounds; or we can try to justify punishment on grounds that are some sort of shrewd combination of consequentialist and retributive considerations. Entirely absent from Hart's discussion is any consideration of the possibility that punishment might be neither a matter of maximizing the good, nor of exacting retribution for a wrongful act, nor of some imaginative combination of these things, but, rather, of something altogether different from either of them: namely, the exercise of a fundamental right of self-protection. Similarly, but much more recently, R. A. Duff, despite the fact that he himself introduces and defends an extremely interesting fourth possibility, begins his discussion by writing as though, apart from his contribution, there are available to us essentially just the options previously sketched by Hart. Again, there is no mention here, any more than in Hart's or any number of other recent discussions, of the possibility that we might be able to justify the institution of punishment on grounds that are indeed forward-looking, to use Hart's famous term, but that are not at all consequentialist in any ordinary sense of the word.