Steiner’s Left-Libertarian Principles of Justice

Left-libertarianism is a doctrine that is “libertarian” in virtue of its endorsement of the rights of self-ownership and (or some would say “but”) is “left” due to its endorsement of an egalitarian distributionist principle with respect to the division of natural resources.3 One can view such a left-libertarianism as an attempt to reconcile the demands of liberty and the demands of equality by ascribing to each individual a right of self-ownership and an equal right to natural resources. (We have already encountered such a left-libertarianism in Chapter 2’s discussion of Herbert Spencer’s SocialStatics.) Through his writings from the mid-1970s to his An Essay on Rights and beyond, Hillel Steiner has revived, extended, and defended an elegant version of left-libertarianism.4 According to Steiner, the two key components of his doctrine – the self- ownership of all persons and the equal rights of all persons to raw natural objects – each derive from the right to equal liberty. Steiner’s doctrine is of great intrinsic interest and also serves as a crucial test for the possibility of successfully combining self-ownership with some egalitarian distributionist perspective.5

Steiner’s rights-oriented doctrine shares a number of key features with Nozick’s position – including an insistence on the strongly deontic character of moral rights.6 Steiner takes the function of rights (or claims of justice) to be the resolution of disputes about which of two (or more) incompatible actions is morally permissible without having to establish which of the contending actions is more valuable or morally preferable (1994: 215). Rights are taken to be strongly deontic precisely because they needto be if they are to resolve such disputes without determining which contending action is more choice- worthy. Ben favors the use of the thumb that is part of his left hand to press the space bar on his laptop; but Jen favors the use of that thumb to season the stew that she is preparing for the Druid Day Festival. Like Nozick and Hayek, Steiner denies that we can resolve the dispute about which of these actions should or may be performed by engaging in a moral balancing act, i.e., by weighing the commensurable value or moral importance of these actions or their consequences against one another. In order to settle disputes about which of two incompatible actions may be performed, we have to turn away from consid- erations about the value or merit of those actions and focus on a different dimension of morality, the dimension of justice or rights. We can resolve the dispute between Ben and Jen only by identifying who has a right to that thumb and, thus, who has a right to decided what will be done with that thumb.

If Ben and Jen both have rights over the thumb in question so that each party’s exercise of his or her right violates the other party’s rights, no appeal to their rights will resolve their dispute. Dispute resolution by way of determining who owns the physical component the use of which is in dispute will be systematically available only if all rights over human bodies and extra-personal objects are compossible, i.e., no one’s exercise of his rights over objects precludes anyone else’s exercise of her rights over objects.

Any rights rule worthy of the name has to be one that … ensures that one and only one party to any deadlock is holding a trump card. … The inviolability of each right doesn’t rest precariously on some contestible weighting or ranking, nor therefore is it contingent upon the varying calculational outcomes of what has aptly been called a “utilitarianism of
rights”.

(1994: 202)

This requires that each person’s (or association’s) rights with respect to any object that may be deployed in action must be exclusive; a set of compossible rights will be a set of exclusive rights.

Suppose that the dispute is resolved by recognizing that Ben has a right to the thumb in question. The thumb is within the domain over which Ben has moral authority and whatever he chooses to do with it – other than sticking it in Jen’s eye – is morally permissible. Jen can acknowledge Ben’s right over the thumb as a reason for her desisting from using that thumb to season her stew without reversing her stance on which deployment of the thumb would be best or most valuable. Recall Locke’s claim in LCT that the way to resolve a dispute between A, who favors sacrificing a calf to please God, and B, who disfavors the sacrifice because B thinks it will displease God, is to circumvent the apparent need to determine whether the sacrifice of the calf will or will not please God. For Locke’s resolution turns on who owns the calf. Thus, to use Steiner’s language, the party who has to “stand down” because the other party has a right to the calf does not have to “reverse” her judgment. If A is the owner of the calf, B has reason to allow A to sacrifice the calf that does not at all require that B affirm the greater value or wisdom of this action. Rather, B has reason to be “tolerant” (1994: 194, 195) of A’s conduct while continuing to condemn it as displeasing to God. Such rights-based resolutions of disputes make peaceful pluralist society possible.

For Steiner, liberty is a matter of being in position to deploy mental and physical components of action as one chooses. The extent of one’s liberty is a matter of the extent of the components of action one can deploy as one chooses. Rightful liberty – which must be equal liberty – will obtain among us if and only if there is equality among the components of action that each of us is in a position to deploy as we respectively see fit. There are two subsets of the components of action that need to be divided equally in order for equal liberty to obtain. There are parts (or aspects) of persons and there are raw extra-personal objects, e.g., raw land, raw chunks of ore, raw fruits of nature and so on. (We shall see shortly why, at least to begin with, only raw extra- personal material is subject to equal division.)

One would expect Steiner to say that, for the principle of equal liberty to be satisfied, each individual must have rights over a total bundle of personal and raw extra-personal components of action that is equal to the total bundle ascribed to each other individual. There is a single pie made up of personal and raw extra-personal components of action and each person has a right to an equal slice – although some slices may have more crust and others more filling. Instead, Steiner envisions two separate equal divisions – one division of personal components and another division of raw extra-personal components. The principle of equal liberty requires an equal division of each sort of component of action. However, Steiner also maintains that the equal division of personal components of action consists in each person having title over all the personal components that constitute his or her person, i.e., in each person being a full self-owner. This, however, seems to fly in the face of the unequal natural endowments of people. Jen may have larger and more toned muscles, a larger and more acute brain, and more physical and mental energy than Ben. If that is the case, then the ascription to each of them of full ownership over their respective natural endowments is an ascription to them of unequal shares of personal components of action. And, if the extent of anyone’s liberty is the extent of the components of action under her control, Steiner’s ascription of full self- ownership to Jen and Ben amounts to an ascription to them of unequal liberty. The distributionist tilt within the right to equal liberty clashes with universal self-ownership among individuals whose personal resources are unequal.

In ER, Steiner provides a somewhat different argument for universal self-ownership. It turns on the ideas that self- ownership is the polar opposite of slavery and that slavery is paradigmatic of inequality of freedom. To fully reject slavery, we have to affirm that “our respective bundles of original property rights must include at least ourselves” (1994: 231). However, there is no reason to think that, when we arrive at universal self-ownership, we have arrived at equality in the division of personal components of action and, therefore, have arrived at the division of personal components that is required by Steiner’s understanding of the right to equal liberty. Indeed, equality in the division of personal compo- nents for action may well obtain when some of the personal resources of strong, acute, and energetic Jen are within the domain of weak, dull, and slothful Ben. If our rights with respect to personal resources are supposed to be rights to equal shares of those resources, some of us should be part owners of others. The lessons for libertarianism are that the wrongness of slavery is not a matter of the enslaver having control over a more extensive domain of personal resources than the enslaved, and universal self-ownership is not a matter of persons enjoying equally extensive domains of personal resources.7

I have argued that, on Steiner’s understanding of liberty, equal liberty among individuals requires that those individuals have discretionary control over equal resources. However, given the inequality among people’s original natural endow- ments, universal original self-ownership entails an inequality among the personal resources over which individuals have rightful discretionary control. Hence, Steiner cannot derive original self-ownership from his principle of equal liberty. One response to this criticism would be for Steiner to contend that original self-ownership doesinvolve each individual beginningherlife asaself-owner with rightful discre- tionary control over personal resources that are equal to the personal resources with which all other individuals rightfully begintheirlivesasself-owners. I understand Steiner to be advancing this contention by means of his “genes argument.” For, according to Steiner, this argument “implies that when minors cross the threshold into moral agency (and hence, self-ownership), their respective personal resources will be approximately equal.”8

This approximate equality of personal resources is to be engendered by redress payments that are made from the parents of genetically better endowed children to the parents of genetically less well-endowed children (1994: 277). Parents who make these payments will invest less in the development of their children’s personal resources than they otherwise would, while parents who receive these payments will invest more in the development of their children’s personal resources than they otherwise would – to the point of (approximately) equalizing the personal resources of all children when they cross the threshold to self-ownership (1994: 280). On Steiner’s view, this demand for redress is not based upon child A being better naturally endowed than child B. Rather, it is based on the parents of child A making use of more than an equal share of a certain natural resource in the production of A, while the parents of B make use of less than an equal share of that natural resource (1994: 277). That natural resource is the germ-line genetic information that these parents employ in their respective procreative endeavors. Since all persons have equal rights to natural resources, each may permissibly make use of up to an equal share of germ-line information without any need to make redress to other persons. But anyone who makes use of more than an equal share must make rectification payments for his or her overstepping.

Steiner speaks of these payments going to “under-appro- priators,” i.e., parents who use less than equal germ-line information. He says that the upshot of his genes argument is “to redistribute wealth, via the global fund, from those adults who own children with superior genetic endowments to those who don’t” (1994: 277). However, this seems to be a misstep. For, within Steiner’s system, the redress payments should go into a “global fund” (1994: 270); and the admin- istrators of that fund should cut checks to all people who have used less than an equal share of this global information. Indeed, those who have not at all used this resource – those who simply don’t have children – would seem to have a more extensive claim to compensation from the “over-appropri- ators” than the “under-appropriators,” who make use of germ-line information that is, say, 80 percent as good as the average germ-line information (1994: 268). If a significant percentage of people do not procreate and yet have valid claims to redress payments from the “over-appropriators,” little funds may be left for the “under-appropriators” to use to enhance the personal resources of their children. On the other hand, if couples whose procreation involves inferior germ-line genetic information procreate markedly more times than those whose procreation utilizes superior germ-line information, who counts as the “over-appropriators” of this natural resource? Who then owes redress to whom?

Here is one other and deeper difficulty with the genes argument. If germ-line genetic information is considered a natural resource to which each has an equal claim, it seems that one should count all genetic information that is embodied in persons as natural resources to which each person has an equal claim. This would include, of course, the genetic information that contributes to certain individuals being economically more productive than others and, within systems that reward productivity, having higher earnings than others. If parents should make redress payments for their use of superior germ-line information in their production of their children, naturally talented individuals should make redress payments for their use of their more than equal genetic endowment. Most obviously, those naturally talented people should make redress payments for the higher earnings that are due to their superior genetic endowments. While not all of high earners’ talents need be due to their superior genetic resources (1994: 277), everyone has a right to an equal share of those genetic resources and, hence, a right to an equal share of all the talent that is due to those natural resources. So, although Steiner’s claim that genetic information is a natural resource need not support full-fledged “talent pooling” (1994: 277), it does support partial talent pooling and, hence, seems to institute some people’s partial ownership of others in contravention of universal self-ownership.

Let’s turn to Steiner’s other primary contention: Persons have natural rights to equal shares of raw extra-personal stuff. At least to begin with, Steiner limits the equal division of extra-personal material to raw natural stuff because he endorses Nozick’s argument against pattern theories in “How Liberty Upsets Patterns.” Indeed, he provides a superb one-line summation of that argument. Pattern theories “create rights to interfere with the exercise of the rights they create” (1976: 43). However, Steiner points out that this argument only shows that the ongoing application of a favored distributional formula comes into conflict with that formula’s initial application. It does not rule out there being a sound distributional formula, e.g., equality in holdings, which tells us what the starting-point distribution of raw extra-personal material should be. Nor does advocacy of an initial, equal distribution of raw bits of nature collide with Nozick’s manna from heaven argument that extra-personal objects are themselves the products of the labor, talent, time, and energy of particular individuals (1974: 159–60, 219). For, raw bits of nature are manna from heaven. Thus, Nozick’s telling arguments against pattern doctrines do not rule out there being a distributional principle that is limited to specifying the just initial distribution of raw extra-personal material.

Nevertheless, the burden is on Steiner to produce a positive argument for his view that individuals have natural rights to equal shares of nature rather than raw material simply being unowned. The key premise of Steiner’s positive argument is that no action is permissible unless the agent of that action already has title to all the physical components of the action. Thus, no initial appropriations can be permissible unless the agent already has title to the appropriated material. Since some initial appropriations are permissible, there must be natural titles to raw stuff; and, since we are moral equals, those must be titles to equal shares. Unfortunately, Steiner’s key premise is highly problematic. The permissibility of an action requires only that the components of the action are not already owned by others. Everything else being equal, an initial acquisition of raw material will be permissible as long as that material is unowned.

For Steiner, once individuals are accorded their “original property rights,” i.e., their natural self-ownership rights and their natural equal shares of raw material, the game of voluntary, rights-respecting, chosen actions and interactions is on; and whatever array of holdings arises among the players will be just. For “… justice requires only the former [our original property rights] but not the latter [our non-original property rights] be equal” (1994: 229). Still, whether Steiner’s largely historical conception of justice in holdings gets off the ground depends upon his providing a satisfactory account of the crucial original equal right to nature. In the course of his extensive writings, Steiner construes the right to equal shares of raw material in two distinct ways. According to the joint- ownership (JO) construal, the original ownership of raw material is joint-ownership. For Steiner, this joint-ownership is global; each individual on the earth is an equal joint share- holder of all global raw material and is to receive an equal share of the revenue from leases of that material. According to Steiner’s early version of the equal division (ED) construal, each individual has title to a specific equal share of global raw material. It follows that each may appropriate only the specific share to which he has antecedent title. Steiner’s later version of ED is designed to avoid this implication. According to this version, “… no specific person originally holds a title to any specific [raw materials]. Nevertheless, each is entitled to an equal portion of them” (1994: 268).

ED is the alternative that best fits the spirit of Steiner’s enterprise, viz., to specify original individual domains within which each individual may do as she sees fit without being subject to the will of others. One obvious problem with ED is that it requires an account of what makes one batch of raw material equal to another. For instance, what would make A’s batch of iron ore equal to B’s patch of raw fertile land? The best answer seems to be that a batch is equal to a patch if they have the same market value. But what happens when relative market values change? Suppose B invents a much more efficient way of raising crops on the sort of raw land to which he has title and this doubles the market value of that raw land. Must we re-establish equality in market value among shares of raw land by requiring B to transfer one fourth of his acreage to C whose raw land has not increased in value? Isn’t that uncomfortably like the ongoing enforcement of a pattern that Steiner joins Nozick in rejecting?

One obvious problem with JO – which we have already seen in Spencer’s doctrine – is that it vests enormous monopoly power in society. Under JO, there needs to be a global authority that has jurisdiction over all of the earth. Such a global monopolistic owner would be in a position to extract enormous economic and non-economic conces- sions from anyone who seeks to lease any portion of the earth. It might be said that such onerous concessions will not be demanded because the global owner of the earth may only act in ways to which all the joint-shareholders agree. However, if unanimous consent is necessary for any decision by global society, no one will ever get a lease – or permission to do anything with or on the earth – because there will never be unanimous agreement on anything. (Recall Locke’s argument against the original joint-ownership of the earth.) In response to these difficulties, Steiner moves to the view that each individual may utilize up to an equal share of raw material without the consent of others and without making redress to others. But any use of more than an equal share of natural material that has not been consented to requires a redress payment into a global fund that compensates those who make use of less than equal shares.

Two facts about human existence greatly complicate Steiner’s program. The first fact is that human beings do not merely lease or have titles to portions of raw extra-personal stuff; people consume raw stuff – often in the process of creating nifty, life-enhancing goods or services. Human ingenuity is continually converting noisome natural material into useful natural resources. Human progress involves an increasing percentage of wealth existing in the form of made objects. The second fact is that human beings are always dying and other human beings are always gradu- ating to personhood. And – because of material progress – more persons are graduating than are dying. If natural materials are becoming increasingly scarce and the number of claimants to equal shares is pretty consistently growing, then size of equal shares of raw stuff will be constantly dimin- ishing.9 Thus, on Steiner’s view, members of later generations will correctly claim that earlier generations have cheated them out of their just shares of natural stuff – or their just shares of the revenue from leases that allow the consumption of leased raw material.

Steiner offers a solution to this difficulty. It is to count the entire estate that any individual justly possesses as abandoned by that person at death. This includes both raw and made extra-personal objects. Since, according to Steiner, dead people have no rights, they have no rights to property or to having their wills honored. Furthermore, “the [former] property of the dead thereby joins raw natural resources in the category of initially unowned things: things to an equal portion of which, as we have seen, each [living] person has an original right” (1994: 258). To be clear, when Steiner says that the deceased’s “property” becomes “unowned,” he only means that it does not remain or become the property of any specific living person. Nevertheless, the deceased’s property does become part of the pie of extra-personal objects to which all living persons are equally entitled. Thus, through the death of property owners, the pie that is morally destined for equal division or for generating rental income that is to be equally divided is replenished. Even the individual’s corpse goes into the pie that must be equally sliced or rented out (1994: 273).

Will this solution to the increasing per capita scarcity of raw material withstand scrutiny? Is an individual allowed while she is still alive to transfer all of her just holdings to another party immediately with the condition that she retains the right to use those holdings as she pleases for the rest of her life? If any such contract is allowed, persons can easily contract around Steiner’s nullification of wills and thereby defeat Steiner’s scheme for replenishment of the social pot. Can Steiner disallow such contracts? To disallow such contracts seems to deny people the innocuous use of what Steiner’s doctrine has assigned to them as a matter of justice for the sake of ongoing adherence to an enshrined distributional principle. If Steiner’s principles disallow such contracts, those principles “… create rights to interfere with the exercise of the rights they create” (1977: 43).

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