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Published online by Cambridge University Press:  31 May 2011

Gerald Gaus
Philosophy, University of Arizona


The “welcome return” to “substantive political philosophy” that Rawls's A Theory of Justice was said to herald has resulted in forty years of proposals seeking to show that philosophical reflection leads to the demonstrable truth of almost every and any conceivable view of the justice of property rights. Select any view—from the justice of unregulated capitalist markets to the most extreme forms of egalitarianism—and one will find that some philosophers have proclaimed that rational reflection uniquely leads to its justice. This is, I believe, a sort of ideological thinking masquerading as philosophizing. In this paper, using some tools from game theory as well as experimental findings, I seek to sketch a non-ideological approach to the question of the justification of property rights. On this approach the aim of political philosophy is, first and foremost, to reflect on whether our social rules of property are within the “optimal eligible set” of rules acceptable to all.

Research Article
Copyright © Social Philosophy and Policy Foundation 2011

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1 Bell, Daniel, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties, rev. ed. (New York: The Free Press, 1962)Google Scholar; Fukuyama, Francis, The End of History and the Last Man (New York: The Free Press, 1992)Google Scholar.

2 As I have argued, given the prognoses for liberalism at the beginning of the twentieth century, and even nearly mid-way through it, this was indeed remarkable. See my Liberalism at the End of the Century,” Journal of Political Ideologies 5 (2000): 179–99CrossRefGoogle Scholar.

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5 For a litany of these incompatible truths about distributive justice, see my On Justifying the Moral Rights of the Moderns: A Case of Old Wine in New Bottles,” Social Philosophy and Policy 24, no. 1 (2007): 86ffGoogle Scholar.

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8 Another possibility, often advocated today, is that such a state would be unjust and without authority, but still could be “legitimate,” in the sense that its use of coercive power may be nonwrongful. See Christiano, Thomas, The Constitution of Equality (Oxford: Oxford University Press, 2008), 240ffCrossRefGoogle Scholar.

9 See Baier, Kurt, The Moral Point of View, abridged ed. (New York: Random House, 1965), xviiixixGoogle Scholar.

10 See Baier, Kurt, The Moral Point of View (Ithaca, NY: Cornell University Press, 1958), 1Google Scholar.

11 See further Darwall, Stephen, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006)Google Scholar.

12 Wall, Steven, Liberalism, Perfectionism, and Restraint (Cambridge: Cambridge University Press, 1998), 35CrossRefGoogle Scholar.

13 Ibid., 101.

14 I consider these matters in more detail in “Hobbes' Challenge to Public Reason Liberalism,” in Hobbes Today, ed. S. A. Lloyd (Cambridge: Cambridge University Press, forthcoming).

15 Locke, John, “A Letter Concerning Toleration,” in The Works of John Locke in Nine Volumes, 12th ed. (London: Rivington, 1824), vol. 5, 19Google Scholar.

16 On the last, see Dworkin, Sovereign Virtue, 236.

17 See Eberle, Christopher J., Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002), esp. chap. 8CrossRefGoogle Scholar.

18 Gauthier, David, “Why Contractarianism?” in Contractarianism and Rational Choice, ed. Vallentyne, Peter (Cambridge: Cambridge University Press, 1991), 21ffGoogle Scholar. But, it will be pressed, we argue for our moral beliefs and political positions; moral argument is part of a public, shared discourse. Religious beliefs, though, also are supported by argument (that is why there are schools of theology), and some hold that sustained rational reflection is itself sufficient to arrive at truth about God—that is the very point of natural theology. And much moral argument is, contrary to the proclamations of some philosophers, itself not fully public and shared. Arguments for controversial moral conclusions invoke as premises seemings or intuitions that are quite rationally not shared by others, or propose interpretations of very abstract moral platitudes (e.g., “Don't harm others”) that are not shared by others. Once these controversial seemings and interpretations are in play, there seems as little hope for progress in moral argument as there is in religious argument once the participants invoke different perceptions of the nature of God. To claim authority over the lives of others on the grounds of such seemings is quintessentially sectarian.

19 Hobbes, Thomas, Leviathan, ed. Curley, Edwin (Indianapolis, IN: Hackett, 1994), 180 (chap. 26, sec. 20)Google Scholar.

20 Locke, John, Second Treatise of Government, in Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), sec. 124Google Scholar.

21 Kant, Immanuel, Metaphysical Elements of Justice, 2d ed., ed. and trans. Ladd, John (Indianapolis, IN: Hackett, 1999), 116–19, 146Google Scholar.

22 Hobbes, Leviathan, 23 (chap. 5, sec. 3).

23 Ibid. See further Gauthier, David, “Public Reason,” in Public Reason, ed. D'Agostino, Fred and Gaus, Gerald F. (Brookeville, VT: Ashgate, 1988): 50ffGoogle Scholar; and Ewin, R. E., Virtues and Rights: The Moral Philosophy of Thomas Hobbes (Boulder, CO: Westview, 1991), chap. 2Google Scholar.

24 Locke, “A Letter Concerning Toleration,” 9–10.

25 Ibid., 43.

26 Locke, Second Treatise, sec. 88.

27 This is not to say that citizens must believe that the state is always correct about these matters. While Hobbes perhaps flirts with this view (and in some ways Rousseau did so as well), Locke and Kant are clear that the state can be wrong, and the citizen may conclude that it is. The core question is about the social authority of one's claims on others, not the truth of one's moral judgments.

28 For Locke, if the majority becomes convinced “in their consciences, that their laws, and with them their estates, liberties, and lives are in danger, and perhaps their religion too,” they may employ their private conscience and its authoritative claims to reject the government's claim to authority. See Locke, Second Treatise, secs. 208, 209, 225, and 230.

29 To remind readers, the Sanctity of Conscience thesis holds that an act of a political authority is morally acceptable to Alf only if it conforms to Alf's private conscience about the requirements of morality, while The Social Authority of Private Conscience thesis adds that the private judgment of a person about morality gives her standing to demand that the state enact legislation that she deems morally required.

30 Green, T. H., Lectures on the Principles of Political Obligation, in Green, Lectures on the Principles of Political Obligation and Other Writings, ed. Harris, Paul and Morrow, John (Cambridge: Cambridge University Press, 1986), sec. 113Google Scholar.

31 Ibid., sec. 134.

32 See Baier, Kurt, The Rational and the Moral Order: The Social Roots of Reason and Morality (LaSalle, IL: Open Court, 1995), 199ffGoogle Scholar.

33 See my “The Evolution of Society and Mind: Hayek's System of Ideas,” in The Cambridge Companion to Hayek, ed. Feser, Edward (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar.

34 Hayek, F. A., Rules and Order (Chicago: University of Chicago Press, 1973), 36Google Scholar. Compare Baier, The Rational and the Moral Order, 218.

35 I am drawing here on Gintis, Herbert's analysis in The Bounds of Reason: Game Theory and the Unification of the Behavioral Sciences (Princeton, NJ: Princeton University Press, 2009), 3940, 201ff.Google Scholar, and my presentation in On Philosophy, Politics, and Economics (Belmont, CA: Thomson-Wadsworth, 2008), 136–42Google Scholar. For the classic analysis, see Smith, John Maynard, “The Evolution of Behavior,” Scientific American 239 (1978): 176–92CrossRefGoogle ScholarPubMed.

36 See Skyrms, Brian, Evolution of the Social Contract (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar.

37 According to one way of formalizing this, S is an evolutionarily stable strategy (ESS) if and only if, with respect to a mutant strategy S* that might arise, either (1) the expected payoff of S against itself is higher than the expected payoff of the mutant S* against S, or (2) while the expected payoff of S against itself is equal to the expected payoff of S* against S, the expected payoff of S against S* is higher than the expected payoff of S* against itself. The idea is this. Suppose that we have an S population into which one or a few S* types are introduced. Because of the predominance of S types, both S and S* will play most of their games against S. According to the first rule, if S does better against itself than S* does against S, S* will not get a foothold in the population. Suppose instead that S* does just as well against S as S does against itself. Then S* will begin to grow in the population, until there are enough S* types so that both S and S* play against S* reasonably often. According to the second rule, once this happens, if S does better against S* than S* does against itself, S will again grow at a more rapid rate. To say, then, that S is an ESS is to say that an invading strategy will, over time, do less well than will S. There are other ways of formulating the basic idea of an evolutionarily stable strategy, but that need not detain us here.

38 In an evenly split Dove/Hawk population, a Dove will play half its games against other Doves, and in each game it receives 5 (so ½ × 5 = 2 ½), while it plays the other half of the time against Hawks, for an average payoff of 0 (½ × 0 = 0); thus, a Dove's overall expected payoff against the entire population is 2 ½. Hawks play Doves half of the time, and in each game receive 10 (so ½ × 10 = 5); the other half of the time a Hawk plays against other Hawks, with an expected payoff each time of −5 (so ½ × −5 = −2 ½); thus (5) + (−2 ½) = 2 ½.

39 See Gintis, The Bounds of Reason, 135.

40 As table 1 shows, the expected payoff of Doves against Lockeans is 2 ½ (half the time a Dove gets nothing, half the time 5); the expected payoff of Hawks against Lockeans is also 2 ½ (−5 half the time for −2 ½, and 10 half the time for an average of 5, so −2 ½ + 5 = 2 ½. Recall that the expected payoffs of Lockeans against themselves is 5, so they cannot be invaded. Lockeans can also invade the mixed population in equilibrium.

41 It constitutes what Robert Aumann called a “correlated equilibrium,” which is more efficient here than the Nash equilibrium characterizing our Hawk-Dove mixed population. Aumann, Robert, “Subjectivity and Correlation in Randomized Strategies,” Journal of Mathematical Economics 1 (1974): 6769CrossRefGoogle Scholar. See also Skyrms, , Evolution of the Social Contract, chap. 4Google Scholar; my On Philosophy, Politics, and Economics, 140–41, Gintis, The Bounds of Reason, 135; and Sugden, Robert, The Economics of Rights, Co-operation, and Welfare (Oxford: Basil Blackwell, 1986), chap. 4Google Scholar. For a sophisticated treatment, see Vanderschraaf, Peter, Learning and Coordination: Inductive Deliberation, Learning, and Convention (New York: Routledge, 2001)Google Scholar.

42 See, for example, Richerson, Peter J. and Boyd, Robert, “The Evolution of Free Enterprise Values,” in Moral Markets: The Critical Role of Values in the Economy, ed. Zak, Paul (Princeton, NJ: Princeton University Press, 2008), 114Google Scholar.

43 Gintis, The Bounds of Reason, 210ff.

44 Recall that, according to Locke, “though the Law of Nature be plain and intelligible to all rational Creatures; yet men being biassed by their Interest, as well as ignorant for want of studying it, are not apt to allow of it as a Law binding to them in the application of it to their particular Cases” (Second Treatise, sec. 124).

45 Bicchieri, Cristina, The Grammar of Society: The Nature and Dynamics of Norms (Cambridge: Cambridge University Press, 2006)Google Scholar. I explore the development of such norms in some depth in The Order of Public Reason (Cambridge: Cambridge University Press, 2011), chaps. 3 and 7Google Scholar. See also Friedman, Daniel, Morals and Markets: An Evolutionary Account of the Modern World (New York: Palgrave Macmillan, 2008), 18CrossRefGoogle Scholar.

46 Gintis, The Bounds of Reason, 204–7.

47 van Donselaar, Gijs, The Right to Exploit: Parasitism, Scarcity, Basic Income (Oxford: Oxford University Press, 2009), 54CrossRefGoogle Scholar.

48 A claim with which David Gauthier appears to concur in his endorsement on the back of van Donselaar's book. Gauthier, advocated a weak requirement of efficient use as necessary for rightful possession in his Morals by Agreement (New York: Oxford University Press, 1986), 293Google Scholar.

49 See Broome, John, Ethics Out of Economics (Oxford: Oxford University Press, 1991), chap. 2Google Scholar. See also my Philosophy, Politics, and Economics, 81–82.

50 For the conception's application to social policy, see Kaplow, Louis and Shavell, Steven, Fairness Versus Welfare (Cambridge, MA: Harvard University Press, 2002)Google Scholar.

51 See further my Philosophy, Politics, and Economics, chap. 2.

52 Van Donselaar's analysis is subtle; the possible counterfactuals he explores as to whether Alf would be better off if Betty did not exist, or did not claim a resource, are complex. See The Right to Exploit, 88ff.

53 It would at least have to be the case that he would be better off given Rand's existence and her appropriation than he would have been in a world without her. Van Donselaar, The Right to Exploit, chap. 2.

54 I have developed this case in some detail in Recognized Rights as Devices of Public Reason,” Philosophical Perspectives: Ethics 23 (2009): 111–36CrossRefGoogle Scholar.

55 David Schwab and Elinor Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies,” in Zak, ed., Moral Markets, 204–27.

56 Hobbes actually thinks that a person has some reason to perform second, but this is usually too weak to outweigh her selfish passions. See Hobbes, Leviathan, chap. 14.

57 On the game of snatch, see Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies,” 205ff.

58 Vanderschraaf, Peter, “Covenants and Reputations.Synthese 157 (2007): 184CrossRefGoogle Scholar.

59 Ibid., 185.

60 Henrich, Natalie and Henrich, Joseph, Why Humans Cooperate: A Cultural and Evolutionary Explanation (Oxford: Oxford University Press, 2007), 123Google Scholar.

62 Ibid., 124.

63 Ibid., 193–96.

64 See Boyd, Robert and Richerson, Peter J., “The Evolution of Indirect Reciprocity,” Social Networks 11 (1989): 213–36CrossRefGoogle Scholar.

65 See, for example, Richerson and Boyd, “The Evolution of Free Enterprise Values”; Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies”; and Friedman, Morals and Markets, esp. chap. 3.

66 See here Bicchieri, Cristina and Xiao, Erte, “Do the Right Thing: But Only If Others Do So,” Journal of Behavioral Decision Making (2008)Google Scholar, published online in Wiley InterScience (, doi: 10.1002/bdm.621. In their experimental work on public-goods games among the Machiguenga and the Mapuche, Joseph Henrich and Natalie Smith also found that “the primary indicator of what a subject will do is what the subject thinks the rest of the group will do.” Henrich, and Smith, , “Comparative Evidence from Machiguenga, Mapuche, and American Populations,” in Foundations of Human Sociality: Economic Experiments and Ethnographic Evidence from Fifteen Small-Scale Societies, ed. Henrich, J., Boyd, R., Bowles, S., et al. (Oxford: Oxford University Press, 2004), 125–67CrossRefGoogle Scholar. See also Richerson and Boyd, “The Evolution of Free Enterprise Values,” 114–15.

67 These results are partly based on the “ultimatum game,” which involves two subjects, Proposer and Responder, who have X amount of some good (say, money) to distribute between them. In the simplest version of the game, Proposer makes the first move, and gives an offer of the form: “I will take n percent of X, leaving you with 100 − n percent,” where n is not greater than 100 percent. If Responder accepts, each gets what Proposer offers; if Responder rejects, each receives nothing. If both parties were narrowly self-interested, Proposer would suggest, say 90:10 splits, and Responder would accept. In fact, in market societies, 60:40 splits tend to be the norm, though Henrich and Smith did find some differences among market societies: the outcomes of the experiments in the market societies of Israel and Indonesia show more low offers, and the Israeli data shows a lower mean offer. Henrich and Smith question the importance of means and modes in analyzing the results of ultimatum games. Heinrich and Smith, “Comparative Experimental Evidence from Machiguenga, Mapuche, and American Populations,” 133–34.

68 Henrich and Smith, “Comparative Evidence from Machiguenga, Mapuche, and American Populations,” 162–63.

69 Ibid., 159.

70 Ibid., 163–64; Shweder, R., Mahapatra, M., and Miller, J., “Culture in Moral Development,” in The Emergence of Morality in Young Children, ed. Kagan, Jerome and Lamb, Sharon (Chicago: University of Chicago Press, 1987), 47ffGoogle Scholar.

71 This may be happening with the Machiguenga. See Henrich and Smith, “Comparative Evidence from Machiguenga, Mapuche, and American Populations,” 141.

72 See Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies,” 126ff. I analyze these sorts of extended utility functions in some depth in Philosophy, Politics, and Economics, chap. 2.

73 I am simplifying here, of course. The set of persons must be further constrained, at least to those who are capable of forming extended utility functions, and so internalizing moral norms.

74 Baier, The Moral Point of View (unabridged edition), 181. See also Baier, The Rational and the Moral Order, 199. Peter Strawson agrees: “There is no reason why a system of moral demands characteristic of one community should, or even could, be found in every other. Strawson, , “Social Morality and Individual Ideal,” Philosophy 36 (2001): 11Google Scholar.

75 Richerson and Boyd, “The Evolution of Free Enterprise Values,” 114.

76 See ibid. See also Friedman, Morals and Markets, chap. 1.

77 On this important point, see Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies”; Boyd, Robert and Richerson, Peter J., The Origin and Evolution of Cultures (New York: Oxford University Press, 2005), chap. 9Google Scholar.

78 For a sophisticated account, see Bicchieri, The Grammar of Society, chap. 2.

79 For an overview of the psychological findings about these competencies, see Manktelow, K. I. and Over, D., “Deontic Reasoning,” in Perspectives on Thinking and Reasoning: Essays in Honor of Peter Wason, ed. Newstead, Stephen E. and Evans, Jonathan St. B. T. (East Sussex, UK: Lawrence Erlbaum Associates, 1995), 91114Google Scholar. See also Schwab and Ostrom, “The Vital Role of Norms and Rules in Maintaining Open Public and Private Economies,” 217; Cummins, Denise Dellarosa, “Evidence for the Innateness of Deontic Reasoning,” Mind and Language 11 (June 1996): 160–90CrossRefGoogle Scholar; and Harris, Paul L. and Núñez, María, “Children's Understanding of Permission Rules,” Child Development 67 (August 1996): 1572–91CrossRefGoogle Scholar. For an accessible overview, see Friedman, Morals and Markets, 19ff.

80 By far the most sophisticated contemporary statement of this view is Martin, Rex's A System of Rights (Oxford: Clarendon Press, 1993)Google Scholar.

81 This “everyday libertarian” view of ownership—that when the government taxes me it takes away my property—is criticized by Liam Murphy and Thomas Nagel as a “myth.” See Murphy, and Nagel, , The Myth of Ownership: Taxes and Justice (New York: Oxford University Press, 2002), 3233CrossRefGoogle Scholar.