Sources & Extracts

 Review this excerpt and then go back to the main thread.

Jeremy Waldron argues that a contractarian approach to justice (including property rights) would never produce a strong principle of justice in acquisition (PJA) as found in Robert Nozick's work because it would never be agreed to by those whom it affects.
So imagine now that the parties in a hypothetical 'original position' of the Rawlsian sort were asked to consider whether they accept a PJA. It does not matter whether it is a particular specified PJA or just the idea of a PJA, as I have outlined it. Presumably in the course of their deliberations the parties would consider the way in which PJAs operate. They would be aware of the points made in the previous section: that a PJA puts individuals in a position unilaterally to impose far-reaching, dangerous, and morally embarrassing obligations on other people -- obligations whose discharge would diminish the latter's life-chances and may imperil their survival. They would be aware that the resources over which a PJA was to operate would be scarce relative to human demand (otherwise why have rules of property at all?) so that the effect of its operation would be to secure the satisfaction of some demands at the expense of others. They would be aware that the unilateral character of acquisition would mean that duties might be imposed on them without regard to their social distribution. If a PJA were to operate, everyone would have a motive to perform the acquisitive act A with respect to some useful resource; but not everyone who was so motivated would succeed in doing so because there would soon come a point at which there were few resources left. Their awareness of all this would lead them to look closely at the suggested acquisitive action A. In the nature of things, the specification of A would be the specification of an action which some people were more adept at performing than others. Some would be very good at A-ing -- they could do A quickly and easily -- whereas others (handicapped in this regard) might be altogether incapable of A-ing or be capable of it only with the greatest difficulty. These advantages and handicaps would not all be intrinsic to the people concerned. Even if A were an action that everyone could perform more or less equally well, still it would be only the first person to perform A with regard to a given resource who got to be its owner. (His ownership then would impose a duty on others to refrain from A-ing with regard to his resource.) So those who turned out to be closest in time and space to unappropriated resources would benefit unequally from the operation of such a principle.....

The effect of all this is that the parties would know that by agreeing to a PJA at least some of them would be committing themselves to refrain from using resources to satisfy their pressing physical needs in circumstances where it would otherwise be open and perhaps sensible for them to do so. It seems to me that this is not a commitment that anyone can enter into in good faith. [Jeremy Waldron, The Right to Private Property, p. 274-276]