A shorter version of this paper was presented to the Conference Group on Jurisprudence and Public Law at the meetings of the American Political Science Association in Washington D.C. in August 1991. I am grateful to the participants on that occasion, particularly Stephen Macedo and Jeremy Shearmur, for their comments and criticisms.

1. This paper is thus a generalization of some of the themes I developed in “Homelessness and the Issue of Freedom” (1991) 39 UCLA Law Rev. 295, and also in Waldron, Jeremy, Liberal Rights: Collected Papers 1981–91 (New York: Cambridge University Press, 1993).Google Scholar

2. George, Henry, Progress and Poverty (London: Kegan, Paul Trench & Co., 1883).Google Scholar

3. Rawls, John, Justice as Fairness: A Briefer Restatement (typescript at Harvard University, dated 1989) at 2–3.Google Scholar

4. Hegel, G.W.F., Elements of the Philosophy of Right, trans. Nisbet, H.B. ed., Wood, Allen (Cambridge: Cambridge University Press, 1991) at 21.Google Scholar

5. Ibid, at 22.

6. I have discussed this issue further in Waldron, Jeremy, “What Plato Would Allow” in Shapiro, Ian & Decew-Wagner, Judith, eds, Nomos: Theory and Practice (New York: New York University Press,forthcoming 1993.)Google Scholar

7. Hegel, supra, note 4 at 22. The last quoted passage from Hegel is preceded by the phrase “To recognize reason as the rose in the cross of the present and thereby to delight in the present....”

8. See Grey, Thomas, “The Disintegration of Property” in Pennock, J.R. & Chapman, J.W. eds., Nomos XXII: Property (New York: New York University Press, 1980).Google Scholar

9. Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988) at 37–53.Google Scholar I have been greatly indebted to , Ackerman’s, Bruce book Private Property and the Constitution (New Haven: Yale University Press, 1977) in my thinking on this.Google ScholarPubMed

10. See Waldron, , The Right to Private Property, supra, note 9 at chs. 8–10.Google Scholar There is a better (because more critical) discussion of the supposed ethical advantages of private property in Munzer, Stephen, A Theory of Property (Cambridge: Cambridge University Press, 1990) at ch. 6.CrossRefGoogle Scholar

11. The response of well-off communities in the United States to the problem of homelessness is a striking example of what happens when these elementary lessons are not learned. See Davis, Mike, City of Quartz: Excavating the Future in Los Angeles (New York: Verso Books, 1991).Google Scholar See also Waldron, “Homelessness and the Issue of Freedom,” supra, note 1.

12. For philosophical discussions of these new methods of moral thinking, see Regan, Don, Utilitarianism and Co-operation (Oxford: Clarendon Press, 1980);CrossRefGoogle Scholar Parfit, Derek, “Five Mistakes in Moral Mathematics” in his book Reasons and Persons (Oxford: Clarendon Press, 1984) at ch. 3;Google Scholar Hardin, Russell, Morality Within the Limits of Reason (Chicago: University of Chicago Press, 1988) at ch. 2.Google Scholar

13. Modern philosophical discussions of property include: Nozick, Robert, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974);Google Scholar Becker, Lawrence, Property Rights: Philosophic Foundations (London: Routledge and Kegan Paul, 1977);Google Scholar Macpherson, C.B., ed., Property: Mainstream and Critical Positions (Oxford: Basil Blackwell, 1978);Google Scholar Ryan, Alan, ed., Property and Political Theory (Oxford: Basil Blackwell, 1984);Google Scholar Reeve, Andrew, Property (London: Macmillan, 1986);CrossRefGoogle Scholar Ryan, Alan, Property (Milton Keynes: Open University Press, 1987);CrossRefGoogle ScholarPubMed Waldron, The Right to Private Property, supra, note 9; Munzer, A Theory of Property, supra, note 10.

14. Ryan, , Property and Political Theory, supra, note 13 at 177.Google Scholar

15. Becker’s book, Property Rights: Philosophic Foundations, supra, note 13, is a good example. The one chapter he devotes to “Anti-Property Arguments” (Chapter 8) divides the objections to private property into four general types: “arguments to the effect property rights have an overall social disutility; arguments to the effect that the institution of property rights is self-defeating; arguments to the effect that private ownership produces vicious character traits…; and arguments to the effect that systems of property rights produce and perpetuate socio-economic inequality.” Ibid, at 88.

16. See Waldron, “Homelessness and the Issue of Freedom,” supra, note 1.

17. Cf. Dworkin, Ronald, Taking Rights Seriously, rev’d. ed. (London: Duckworth, 1977).Google Scholar

18. See Waldron, , The Right to Private Property, supra, note 9 at 17–19.Google Scholar

19. Of course, as we have already noted, private property is really much more complicated than this; but this will do for the purposes of the present discussion. For fuller accounts, see Honoré, A.M. “Ownership” in Guest, A.G., ed., Oxford Essays in Jurisprudence, (Oxford: Oxford University Press, 1961)Google Scholar and Waldron, The Right to Private Property, supra, note 9 at ch. 2.

20. Hohfeld, W.N., Fundamental Legal Conceptions (New Haven: Yale University Press, 1920);Google Scholar Hart, H.L.A., Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982).CrossRefGoogle Scholar

21. See Hart, H.L.A., on ‘liberty-rights and their protective perimeter’ in “Bentham on Legal Rights,” in Simpson, A.W.B., ed., Oxford Essays in Jurisprudence, Second Series (Oxford: Clarendon Press, 1973) at 179–83.Google Scholar

22. Rawls, John, A Theory of Justice (Oxford: Oxford University Press, 1971) at 75–83.Google Scholar

23. See Locke, John, Two Treatises of Government, ed., Laslet, P. (Cambridge: Cambridge University Press, 1988) at 330–31.CrossRefGoogle Scholar

24. Rawls, supra, note 22 at 13. See also Immanuel Kant, “Theory and Practice,” Part II, in Reiss, H., ed., Kant’s Political Writings, enlarged edition (Cambridge: Cambridge University Press, 1991) at 79.Google Scholar

25. See the discussion in Scheppele, Kim & Waldron, Jeremy, “Contractarian Methods in Political and Legal Evaluation” (1991) 3 Yale J. of Law and Hum. 195.Google Scholar

26. Waldron, Jeremy, “Theoretical Foundations of Liberalism” (1987) 37 Phil. Quarterly 127 and also in Waldron, Liberal Rights, supra, note 1.Google Scholar

27. See Popper, Karl R., The Logic of Scientific Discovery (London: Harper & Row, 1959).Google Scholar The relevance of Popper’s methodology in moral argument is discussed in Hare, R.M., Freedom and Reason (Oxford: Clarendon Press, 1963) esp. at 87–93.Google Scholar

28. Locke, supra, note 23 at 301–02.

29. Ibid. at 290.

30. Ibid. at 300–01. According to C.B. Macpherson, what has happened here is that the spoliation condition is ‘transcended,’ ‘rendered ineffective’ and that because of the invention of money it ‘ceases to apply.’ (See Macpherson, C.B., The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962) at 203–11.Google Scholar But these characterizations are inappropriate. Barter, exchange and money enable men to accumulate larger possessions while still observing the requirement that nothing is to perish uselessly in their possession. That requirement is fundamental for Locke, and cannot simply be cast aside by some human invention. (See Locke, supra, note 23 at 170, 204–05, 285–86 and 288.)

31. Locke, , Two Treatises, supra, note 23 at 291.Google Scholar

32. Ibid. at 292 (my emphasis).

33. Ibid. at 288.

34. Ibid. at 205.

35. Ibid. at 301.

36. See ibid, at 271,284, and 357.

37. See especially ibid. at 376–77.

38. Perhaps this is where Locke’s claim about the universal benefits of appropriation becomes important. Maybe each is better off if all the land in a territory is privately appropriated, even though none of it is appropriated by him, for its appropriation may stimulate the economy and provide the basis for a better subsistence (as an employee) than he would have as a natural commoner. If it is true, as Locke claims, that “a King of a large and fruitful territory” in an unappropriated part of the Americas “feeds, lodges, and is clad worse than a day Labourer in England” (ibid, at 297), then consent to enlarged appropriation may be rational as offering the best economic prospect for those who have nothing.

39. See Hobbes, Thomas, Leviathan, ed., Macpherson, C.B. (Harmondsworth: Penguin Books, 1981) at 271–28.Google Scholar See also Waldron, supra, note 26 at 136–40 for the different uses of consent in political theory.

40. Hume, David, A Treatise of Human Nature, ed., Selby-Bigge, L.A. (Oxford: Clarendon Press, 1896) at 490.Google Scholar (Hume applies this model explicitly to the invention of money in An Enquiry Concerning the Principles of Morals in Selby-Bigge, L.A. ed., Hume’s Enquiries (Oxford: Clarendon Press, 1902) at 306–07.Google Scholar

41. The process of the valorization of currency is described as “a tacit and voluntary consent” in Locke, supra, note 23 at 302

42. The best account is that of Nozick, Robert, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) at 18,Google Scholar adapted from von Mises, L., The Theory of Money and Credit, trans. Batson, H.E. (New Haven: Yale University Press, 1954) at 30–34.Google Scholar

43. Locke, Considerations of the Lowering of Interest and Raising the Value of Money, cited by Laslett in his edition of the Two Treatises, supra, note 23 at 300n.

44. Locke, supra, note 23 at 299.

45. Ibid. at 391.

46. But see the argument in Marx, Karl, Capital, trans. Fowkes, Ben(Harmondsworth: Penguin Books, 1976) at 781–94,Google ScholarPubMed that the viability of capital depends on the existence of a vast industrial reserve of unemployed and immiserated workers.

47. For explanations of this phrase, Meade, J.E., Efficiency, Equality and the Ownership of Property (London: George Allen & Unwin, 1964);Google Scholar Rawls, A Theory of Justice, supra, note 22 at 274;Google Scholar Rawls, Justice as Fairness, supra, note 3 at 100ff.;Google Scholar Waldron, The Right to Private Property, supra, note 9 at ch. 12;Google Scholar Krouse, Richard, & McPherson, Michael, “Capitalism, ‘Property-Owning Democracy,’ and the Welfare State,” in Gutmann, Amy, ed., Democracy and the Welfare State (Princeton: Princeton University Press, 1988).Google Scholar

48. Another example might be the British ‘poll tax’ imposed under Margaret Thatcher’s administration. That institution did not appear to be normatively resilient. Opponents of the tax were able to muster a robust sense of rightfulness in their evasion or avoidance of it.

49. See Hume, , Treatise of Human Nature, supra, note 40 at 484–513.Google Scholar

50. Ibid, at 509.

51. Cf. Hume: “What has long lain under our eye, and has often been employ’d to our advantage, that we are always the most unwilling to part with; but can easily live without possessions, which we never have enjoy’d, and are not accustom’d to.” Ibid. at 503.

52. See Flew, Antony, The Politics of Procrustes: Contradictions of Enforced Equality (London: Temple Smith, 1981) at 117–37.Google Scholar

53. Wiggins, David, “Claims of Need” in Honderich, Ted, ed., Morality and Objectivity: A Tribute to J.L. Mackie (London: Routledge & Kegan Paul, 1985) at 163.Google Scholar

54. It is sometimes maintained that the concept of need is out of place unless one is talking about biological causality and life-threatening deprivations. But the task of a theory of need is not so narrowly circumscribed: the task is to examine, not assume, the proposition that only life-threatening deprivations should be of interest.

55. Rawls, , A Theory of Justice, supra, note 22 at 92.Google Scholar

56. Schwartz, Adina, “Moral Neutrality and Primary Goods” (1973) 83 Ethics 294.Google Scholar

57. Sen, Amartya, “Equality of What?” in McMurrin, S. ed., The Tanner Lectures on Human Values, Vol. 1 (Cambridge: Cambridge University Press, 1980) at 216.Google Scholar

58. Walzer, Michael, for example, made it one of the leading motifs of his book Spheres of Justice (Oxford: Martin Robertson, 1983).Google Scholar

59. Rawls, , A Theory of Justice, supra, note 22 at 544.Google Scholar

60. He makes an exception, however, for rights to political power, where the importance of the liberties is itself intrinsically competitive. Ibid, at 201–05, 221–28 and 541–48.

61. This is the subject of a book I am currently working on: Poverty and Freedom.

62. See Waldron, The Right to Private Property, supra, note 9 at ch. 9. This argument is due to Pierre-Joseph Proudhon and I refer to it in the book as “The Proudhon Strategy.”

63. Locke, , Two Treatises, supra, note 23 at 288.Google Scholar

64. Ibid, at 204–05 and 285–86.

65. Ibid, at 170.

66. See Miller, David, Social Justice (Oxford: Clarendon Press, 1976) at ch. 4 and Raymond Plant,Google ScholarPubMed “Needs and Welfare” in Timms, Noel, ed., Social Welfare: Why and How? (London: Routledge and Kegan Paul, 1980).Google Scholar

67. Certainly needs do not have the same intentionality as wants: “A wants X” does not entail “A wants Y” even given that X = Y, and that entailment does seem to go through in the case of some statements of need. But a different intentionality is not the same as no intentionality.

68. Rawls, , A Theory of Justice, supra, note 22 at 176.Google Scholar

69. Elsewhere I have criticized Rawls's view that only the 'Difference Principle' could pass this test: see Waldron, Jeremy, “John Rawls and the Social Minimum” (1986) 3 J. of Applied Phil. 21,Google Scholar also in Waldron, Liberal Rights, supra, note 1.

70. For the way this changes our perspective on the obligation apt help others, see Waldron, Jeremy, “Welfare and the Images of Charity” (1986) 36 Phil. Quarterly. 463,Google Scholar also in Waldron, Liberal Rights, supra, note 1.

71. Hayek, F.A., The Mirage of Social Justice, vol. 2 of Law, Legislation and Liberty (London: Routledge and Kegan Paul, 1976) at 64.Google Scholar

72. See, for example, the discussion in Strawson, P.F., “Freedom and Resentment” (1962) 48 Proceedings of the British Academy, and in his collection Freedom and Resentment and Other Essays (London: Methuen, 1974).Google Scholar Something similar may be true of punishment: maybe a deliberately inflicted harm feels different to the extent that it is viewed as deserved.

73. Mill, J.S., Principles of Political Economy with Some of their Applications to Social Philosophy, Book II, Ch. 2, sect. 6Google Scholar, excerpted in Macpherson, C.B., ed., Property: Mainstream and Critical Positions (Oxford: Basil Blackwell, 1978) at 96.Google Scholar

74. See Nozick, supra, note 13 at 174–82, and Gauthier, David, Morals By Agreement (Oxford: Clarendon Press, 1986) at ch. 7.Google Scholar