Final Draft. Forthcoming in Res Publica. Three Types of Sufficientarian Libertarianism Fabian Wendt Sufficientarian libertarianism is a theory of justice that combines libertarianism’s focus on property rights and non-interference with sufficientarianism’s concern for the poor and needy. Persons are conceived as having stringent rights to direct their lives as they see fit, provided that everyone has enough to live a self-guided life. This is the basic idea. I hope that many people see its initial appeal; I say a bit more on the motivation to develop a sufficientarian libertarianism in the first section. Yet there are different ways to combine libertarianism and sufficientarianism and hence different types of sufficientarian libertarianism. In the article I will present and discuss three types, and I will argue that the last one overcomes the problems of the other two. The first combines libertarianism with a sufficiency principle in what is sometimes called the ‘ethics of distribution’ (section 2). The second incorporates modest welfare rights into a libertarian theory of justice (section 3). The third endorses a sufficientarian Lockean proviso for practices of private property within a libertarian theory of justice (section 4). I will argue that it is superior to the others (sections 5 and 6) and that it does not face unsurmountable objections of its own (section 7). 1. The Idea of a Sufficientarian Libertarianism Libertarianism need not be conceived as a theory of justice. One can see its essence in (radical) advocacy of free markets. So understood, libertarianism would be compatible with many different theories of justice. Yet in this article, libertarianism is conceived as a distinct theory of justice. What is distinctive about it is that it regards property rights as the core notion for a theory of justice (and draws a close connection between property rights and liberty). This does not imply that a libertarian theory of justice has to dismiss all justice concerns beyond property issues. A theory of justice should count as ‘libertarian’ when it gives considerable weight to property rights, even when it combines the theory of property rights with some additional principles of justice. I will not assume or presuppose that there are no considerations of justice beyond property rights. A libertarian theory of justice endorses self-ownership, first of all. Every person is conceived as having stringent ownership rights over his or her body and mind. Self-ownership is conceived as a ‘natural right’. A natural right should simply be understood as a nonconventional and non-acquired moral right that all beings with certain properties have. Not all moral rights are natural rights. Some moral rights are acquired insofar as somebody has to do something in order to generate these moral rights, like, for example, make a promise or sign a contract. Other moral rights do not exist before they are conventionally (and maybe legally) 1 Wendt: Three Types of Sufficientarian Libertarianism established. Human rights – in contrast to natural rights – may fall into this class of convention-based moral rights. Second, a libertarian theory of justice allows for the acquisition of property rights in external resources. There are two ways to do this. Eric Mack speaks of ‘practice conceptions’ and ‘inherent-feature conceptions’ of private property (2010, pp. 54-55).1 The paradigmatic inherent-feature conception of private property grounds property rights in external resources in labor-mixing (Locke 1689, Second Treatise, §§27-30). The mixing of one’s labor is then regarded as the inherent feature of an action that confers property rights on the laborer. In Hohfeldian terms (see Hohfeld 1913), persons are thus conceived as having the moral power to acquire property rights in external resources by mixing their labor with them.2 On this account, self-ownership is the only natural right, while labor-mixing extends self-ownership rights to external resources. Property rights in external resources are grounded in selfownership. According to a practice conception, in contrast, people have a second natural right besides self-ownership. They have a natural right to the practice of private property. This natural right implies the Hohfeldian moral claim-right not to be excluded from a conventional practice of private property and the Hohfeldian moral power to appropriate objects in line with the conventions of a justifiable practice of private property. Labor-mixing is but one such convention; there are many other ways to let people acquire private property. Of course a practice should be suitable for its purpose: not all kinds of acts could plausibly serve as indicators of initial appropriation. In a practice conception of private property, it is not specific appropriative acts that do the moral work of justifying specific property claims, but the natural right to the practice of private property. Why should one endorse a libertarian theory of justice? One powerful (type of) argument for libertarianism as a theory of justice builds on the idea of project pursuit. Persons are purposive beings and have the capacity to pursue all kinds of projects. Trivially, all projects require the use of one’s body and mind, and so persons should be conceived as self-owners. But almost all such projects also require external resources, in one way or another, and they require being able to count on one’s resources. Hence persons as project-pursuers also need the opportunity to acquire private property in external resources. It is not important whether they can acquire private property from the state of nature, of course. It is fine when they can buy, rent or lease resources. The project pursuit rationale clearly speaks in favor of a practice conception of private property, not an inherent-feature conception, simply because the natural right to the practice of private property is more flexible and allows more ways to get the practice of private property going. Therefore, a libertarian theory of justice should combine selfownership with a second natural right, the right to the practice of private property. Now if one accepts the project pursuit rationale for a libertarian theory of justice, then one should also care that everyone actually has sufficient resources to live as a project pursuer. Without suffi1 2 Similarly, Waldron distinguishes general right arguments and special right arguments for private property (1988). In general, a Hohfeldian power is a second-order capacity to change one’s own or other people’s first-order moral status or, in other contexts, legal status. 2 Wendt: Three Types of Sufficientarian Libertarianism cient resources, one is simply unable to live a life as a project pursuer. That is why a libertarian theory of justice should somehow try to incorporate sufficientarian concerns. This argument is obviously a very rough sketch, but it is sufficient for our purposes. My aim in this article is not to defend the project pursuit rationale for sufficientarian libertarianism. It merely serves as a kick-off to motivate the idea of developing a sufficientarian libertarianism, i.e. a theory of justice that in some way combines self-ownership and the natural right to the practice of private property with sufficientarian ideas. I will now discuss three different ways of doing so. 2. Dualist Libertarianism and the Sufficiency Principle in the Ethics of Distribution In this section I discuss a first type of sufficientarian libertarianism, one that combines a libertarian theory of justice with a sufficiency principle in what is sometimes called the ‘ethics of distribution’. For lack of a better term, I will refer to it as dualist libertarianism. The ethics of distribution is designed to deal with cases where no party has any antecedent entitlements (including property rights) to the distribuenda (Parfit 1997, p. 203; Benbaji 2005, p. 310). It is about the just distribution of pies that are simply assumed to be there. Sufficientarians in the ethics of distribution may also want to apply their sufficiency principle to cases where entitlements are in play, but for the sake of simplicity these entitlements are usually set aside. In contrast, a libertarian theory of justice precisely justifies such entitlements in the form of property rights. As such, it says nothing about justice in distributing pies that are just assumed to be there. Libertarians can emphasize that there are not many such cases – or at least that there should not be many such cases (Nozick 1974, pp. 149-150, 159-160). Before I explain how dualist libertarianism is supposed to work, I should say a bit more about sufficientarianism in the ethics of distribution. Generally speaking, sufficientarianism advocates a threshold of sufficiency and claims that everyone living above that threshold is a moral desideratum that has high priority. This is of course a very imprecise formulation. It is supposed to encompass a variety of more precise interpretations of sufficientarianism. More precise interpretations have varied along at least three variables. First, different criteria of sufficiency have been proposed by sufficientarians: being content regarding money (Frankfurt 1987, p. 152), being content regarding one’s welfare or the quality of one’s life (Huseby 2010, p. 181), being content regarding resources (Freiman 2012, pp. 31-33), whether an impartial spectator would be compassionate (Crisp 2003, pp. 755-763), being free from significant pressure against succeeding in central aspects of human life (Axelsen and Nielsen 2015, p. 418), having effective access to levels of functioning sufficient to stand as an equal in society (Anderson 1999, p. 318), having sufficient capabilities for truly human functioning (Nussbaum 2006, pp. 71, 74-75), being sufficiently autonomous (Shields 2016, p. 53), needs being met (Benbaji 2005, pp. 324-326), or needs for subsistence being met (Huseby 2010, p. 180). Second, sufficientarians disagree how to justly distribute things among persons below the threshold: should all persons below the threshold count equally, should priority be given to those who are farther below the threshold than others (Crisp 2003, p. 758), or should we assume a plurality of thresholds (Huseby 2010, pp. 180-181; Benbaji 2005, pp. 320-321; 2006, pp. 338-342)? Third, sufficientarians disagree about what to say about distributions among 3 Wendt: Three Types of Sufficientarian Libertarianism persons above the threshold. Harry Frankfurt expresses the sufficientarian conviction as follows: ‘If everyone had enough, it would be of no moral consequence whether some had more than others’ (1987, pp. 134-135). Some, though, endorse prioritarian or egalitarian principles above the threshold (Brown 2005; Nussbaum 2006, pp. 71, 75; Casal 2007, pp. 318-323; Shields 2012, pp. 105-111; 2016, ch. 2). Such positions might be classified as hybrids. How could a libertarian theory of justice be combined with a sufficiency principle in the ethics of distribution? The idea is simple. A libertarian theory of justice grants persons natural self-ownership rights and a natural right to the practice of private property. That theory is then combined with a sufficiency principle that says that everyone living above a certain sufficiency threshold is a moral desideratum that has high priority (and gives a more precise interpretation of this basic idea). This sufficiency principle is hence conceived as a separate principle of justice, standing on its own feet. It is not an internal part of a libertarian theory of justice and in that sense it is independent. The result is a theory of justice with two ingredients (hence ‘dualist’): a libertarian theory (together with the property rights it justifies), and an independent sufficiency principle. Both have to be weighed against each other. If the libertarian part is given considerable weight, the overall theory could still appropriately be called ‘libertarian’. (Thus to endorse sufficientarianism in the ethics of distribution and to acknowledge the moral relevance of property rights is not sufficient for being a dualist libertarian. To count as a dualist libertarian, one also has to see a principled basis for property rights and give them considerable weight). I am not aware that anyone has actually advocated dualist libertarianism,3 but at first sight it may certainly look like a viable and attractive option. I will discuss the problems of dualist libertarianism later. For now I merely want to introduce the three types of sufficientarian libertarianism. 3. Welfare Rights Libertarianism A second type of sufficientarian libertarianism accepts modest welfare rights. It can thus be called welfare rights libertarianism. Loren Lomasky is a prominent advocate of such a view.4 Lomasky provides an elaborate project pursuit rationale for libertarian rights and modest welfare rights. His main argument is contractarian, although not of the purely Hobbesian variety. He imagines a state of nature with project pursuers who care a lot about their own projects, but are also empathetic with the concerns of others, have some disposition to behave altruistically, and are able to recognize impersonal value. He tries to show that from such a state of nature mutually acknowledged moral space will naturally emerge in the form of ‘basic rights’ (1987, pp. 69-83), a notion he prefers to ‘natural rights’ (1987, p. 101). This process can be 3 4 Simmons (1995, p. 224) has suggested to combine libertarianism with some patterned principle, Arneson (2010, pp. 192-193) has suggested to combine libertarianism with prioritarian consequentialism. These proposals are not dualist libertarian, but at least they come close. Fried (1978, ch. 5) and Maloberti (2009) also endorse some type of welfare rights libertarianism. Locke may count as a precursor (1689, First Treatise § 42). Waldron suggests an abstract general right to own property as an alternative to a Lockean right of appropriation (1988, pp. 130-132, 408-422); if combined with self-ownership and a right to the practice of private property, the emerging form of libertarianism would be a welfare rights libertarianism as well. 4 Wendt: Three Types of Sufficientarian Libertarianism understood as an invisible hand process; no intentional design is needed. Yet Lomasky concedes that the invisible hand might well result in unequal basic rights, where some groups get less rights than others. But he insists that there is a moral case to be made for equal rights for all project pursuers (1987, pp. 77-78).5 What is the content of people’s basic rights? From Lomasky’s contractarian viewpoint, one fairly abstract and general guideline is that basic rights should be modest enough to allow us to include even those persons into our moral community who would likely defect if basic rights had a greater scope (1987, pp. 82-83). More concretely, he argues that welfare rights (i.e. positive rights to be provided with some good) are very costly, generally speaking, while liberty rights (i.e. negative rights to non-interference) are not (1987, pp. 94-95). Moreover, what is unique about liberty and non-interference is that it ‘must be provided by others if it is to be enjoyed at all’ (1987, p. 97; see pp. 97-100; 2000, pp. 108-111). One cannot provide liberty and non-interference by oneself. This explains the primacy of liberty and noninterference, according to Lomasky. Property rights then specify what counts as interference. Lomasky argues that project pursuers will come to endorse self-ownership rights (or a ‘basic right to bodily integrity’, as he calls it) as well as a basic right to private property, basically similar to the above natural right to the practice of private property (1987, pp. 113-114, 120121). Conventional practices have to shape the more precise contours of private property rights in external resources. He accordingly distinguishes between abstract basic rights and more concrete moral rights and legal rights (1987, pp. 101-105). Yet although there is a primacy of liberty rights, Lomasky argues that some modest welfare rights can also be vindicated. I quote him at length: What each of us needs from all others is, first and foremost, noninterference, but for those who are unlucky this may not be enough. […] There is […] no assurance that liberty will universally guarantee to all persons the requisites for living as project pursuers. For one situated at the margin of exigency, adherence to an order of mutual noninterference can be extremely costly. […] If a regime of rights is to be robust, it cannot demand of individuals more than they can reasonably be expected to provide. […] Thus, reciprocity dictates that individuals precariously perched on the edge of exigency can be obligated to respect the liberties of others only if they are simultaneously ensured a sufficiency of material goods. So conceived, welfare rights are not at odds with the program of classical liberalism. Instead, they render it justifiable at the margin (1995, p. 47; see 1987, pp. 96-97, 125-129; 1995, pp. 47-49; 2000, pp. 112-113). Welfare rights are not supposed to replace the right to the practice of private property. They are an addition to the set of natural or basic rights, right next to self-ownership and the right to the practice of private property. Again, I will later discuss problems of welfare rights libertari5 Lomasky’s moral case for equal rights shows that his approach is not contractarian all the way down. Not all moral truths – including truths about basic rights – are constructed out of a contractarian procedure. More generally, it may be worth emphasizing that the project pursuit rationale for libertarianism need not be spelled out in contractarian terms. But space does not allow me to discuss the proper place of contractarian arguments. 5 Wendt: Three Types of Sufficientarian Libertarianism anism. At the moment, I merely introduce it as one of the three types of moderate libertarianism. 4. Moderate Libertarianism and the Sufficiency Proviso A third way to integrate sufficientarian concerns in a libertarian theory of justice is to endorse a ‘sufficiency proviso’ for practices of private property. Since John Locke’s famous ‘enough and as good’ proviso, the ‘Lockean proviso’ on property acquisition has been a central tenet in libertarian theory. ‘Left-libertarianism’ and ‘right-libertarianism’ are often distinguished according to their stance on the Lockean proviso. While left-libertarians endorse some egalitarian version of it, right-libertarians either completely reject Lockean provisos or accept very weak versions of it (like most prominently Robert Nozick). A libertarian theory that incorporates a sufficiency proviso covers the middle ground between left-libertarianism and rightlibertarianism, so understood: a sufficiency proviso is stronger than anything right-libertarians would accept, but it is weaker than an egalitarian proviso (as advocated by left-libertarians). For that reason I would like to call the position moderate libertarianism. Elsewhere I spell out why the sufficiency proviso of moderate libertarianism is superior to the provisos advocated by right-libertarians as well as left-libertarians (Wendt 2017). The sufficiency proviso can be regarded as an integral part of the natural right to the practice of private property. The natural right to the practice of private property, recall, includes the moral power to acquire property rights in external resources in accordance with the conventions of a justifiable practice of private property, and a moral claim-right not to be excluded from such practices. The sufficiency proviso co-determines what a ‘justifiable’ practice of private property is – namely a practice that satisfies the sufficiency proviso. A practice of private property that meets the sufficiency proviso is designed in a way that makes sure that everyone has sufficient resources to live as a project pursuer. It need not make sure that everyone has sufficient resources to succeed in the specific projects he or she actually pursues; these projects may be very expensive or risky, and justice cannot require that everyone succeeds in his or her projects. The sufficiency proviso only requires that everyone has enough resources to be able to live as a project pursuer. It requires that everyone has resources that allow him or her to pursue meaningful projects beyond struggling for survival. This certainly means that one’s basic human needs have to be met, i.e. the needs one shares with all other human beings. These are, quite obviously, needs for food, clothing, shelter etc. Some persons, e.g. severely disabled or sick persons, may need more resources than others in order to have their basic human needs satisfied. But having one’s basic human needs satisfied is arguably not sufficient for being able to live as a project pursuer. One also needs some knowledge, certain character traits and – at least in our societies – minimal financial security. What is needed to be able to live as a project pursuer will partly depend on the kind of society a person is living in. Educational needs will vary from time to time and from place to place, for example. Persons who benefit from a practice that does not satisfy the sufficiency proviso have to compensate those who suffered under that practice and had to live below the sufficiency 6 Wendt: Three Types of Sufficientarian Libertarianism threshold. Yet the main point of the sufficiency proviso is not to vindicate duties of compensation. It is to provide stringent reasons to reform an unjustifiable practice of private property. Libertarianism as a theory of justice is silent on the institutions that are most appropriate to meet the proviso. It seems natural to think that the proviso speaks for some welfare state institutions, maybe in the form of a guaranteed basic income. But the sufficiency proviso need not vindicate welfare state institutions. Maybe it is better to rely on private charity institutions. I here stay agnostic on what institutions best implement the sufficiency proviso. The sufficiency proviso applies to the practice of private property as a whole, not to specific acts of appropriation. It (co-)determines what a justifiable practice of private property is. The sufficiency proviso can therefore be conceived as a sort of libertarian ‘background justice’, to appropriate the notion from John Rawls (1993, p. 283). This is different from how Lockean provisos are usually conceived.6 There is one important qualification to the sufficiency proviso, though. It does not unconditionally require bringing everyone above the sufficiency threshold. Unfortunately, there are times and places where the economy is too weak to be able to bring everyone above the sufficiency threshold. The proviso can only prescribe that the practice of private property should be designed in a way that makes sure that everyone has sufficient resources to live as a project pursuer, if this is possible. But this is still too radical. There are also times and places where it would be possible to bring everyone above the sufficiency threshold, but only at a very high price. Bringing everyone above the threshold cannot require undermining the very point of having a practice of private property in the first place. The practice of private property should leave everyone generous space to pursue projects, and this sets limits to what the sufficiency proviso can require. So the proviso can only prescribe that the practice of private property should be designed in a way that makes sure that everyone has sufficient resources to live as a project pursuer, if this is possible without undermining the point of having a practice of private property in the first place. The point of having a practice of private property is undermined when a practice of private property sanctions significant infringements on people’s self-ownership rights, considerably limits people’s control over their property in external resources, or restricts people’s freedom to pursue projects (which includes entrepreneurial projects) to a considerable degree. This admittedly does leave quite some room for disagreement about when exactly the point of having a practice of private property is undermined, yet I think this is unavoidable. To ask for more precise boundaries is to ask too much from political philosophy. When the proviso cannot be met without undermining the point of having a practice of private property, then the proviso still applies as a future aspiration and as a goal a practice should at least try to approximate. Kasper Ossenblok has raised an objection against my ‘conditional’ formulation of the sufficiency proviso. He asks: ‘Why do we need […] a special protection for the purposive abilities of those agents who are well above the threshold?’ If one accepts the project pursuit ra6 Locke’s ‘enough and as good’ proviso as well as Nozick’s proviso arguably specify limits on individual acts of property acquisition (Locke 1689, Second Treatise §§27, 33, 36; Nozick 1974, pp. 175-179). Nozick seems to also apply his proviso to practices of private property as a whole (1974, p. 177). 7 Wendt: Three Types of Sufficientarian Libertarianism tionale, ‘what is of primary importance is to lift everyone above the threshold’ (2017, p. 200). In reply, the conditionality of the sufficiency proviso is not introduced as a ‘special protection’ for people above the threshold at the expense of people below the threshold. It is introduced in order to prioritize having a practice of private property with a point, i.e. a practice of private property that allows at least some persons to live as project pursuers. (This does not imply that there are no moral duties to help persons below the threshold). There are two reasons for making the sufficiency proviso conditional in that way. First, the project pursuit rationale for sufficientarian libertarianism seems to support it quite directly, since a practice of private property with a point allows at least some people to live as project pursuers, while a practice of private property that undermines the point of having a practice of private property does not. Second, practices of private property are dynamic in character, and a practice of private property that allows at least some people to live as project pursuers will eventually lift more boats and enable more persons to live as project pursuers. John Simmons has offered an interpretation of John Locke’s ‘enough and as good’ proviso that might be considered ‘moderate’ in the sense employed here (1992, pp. 292-298; see also Waldron 1988, p. 281). According to him, the proviso requires leaving a ‘fair share’ for others, which means to leave an ‘opportunity of a living – a condition of nondependence, in which one is free to better oneself, govern one’s own existence, and enjoy the goods God provided for all’ (1992, p. 293). Depending on how a ‘fair share’ and ‘opportunity of a living’ are spelled out in detail, this proviso may be quite similar to my sufficiency proviso. One difference is that Simmons’s proviso is apparently thought to apply to individual acts of acquisition (and thus better fits inherent feature conceptions of private property), another is that it refers to Locke’s theological background assumptions, which my sufficiency proviso does not. 5. Why Moderate Libertarianism Is Better than Dualist Libertarianism All three forms of sufficientarian libertarianism accept both self-ownership and the right to the practice of private property. They then introduce sufficientarian concerns in their own distinctive ways, namely via a sufficiency principle in the ethics of distribution, modest welfare rights, or a sufficientarian Lockean proviso. I will now argue that moderate libertarianism is superior to the other types of sufficientarian libertarianism because it avoids their problems. I start with some worries about dualist libertarianism and argue that moderate libertarianism does not face them (this section). I then do the same with welfare rights libertarianism and moderate libertarianism; again, moderate libertarianism turns out to be superior (section 6). In a final section, I argue that libertarian objections against moderate libertarianism are unconvincing. So let me start with dualist libertarianism. Dualist libertarianism combines a proviso-free libertarian theory of justice with a principle of sufficiency in the ethics of distribution (see section 2). The first problem with this way of combining libertarianism and sufficientarianism is a lack of coherence. Because a libertarian theory of justice is about property rights, it is a bit odd to combine it with a principle that ignores people’s property rights and regulates the distribution of pies that just happen to be there. Relatedly, in dualist libertarianism we get a con- 8 Wendt: Three Types of Sufficientarian Libertarianism stant conflict between property rights – as justified by the libertarian theory of justice – on the one hand, and a sufficiency principle that ignores these property rights on the other hand. Moderate libertarianism, in contrast, is highly coherent. By integrating a sufficiency proviso into a libertarian theory of justice, the sufficientarian element is not conceived as a principle that regulates the distribution of pies that just happen to be there, but as a principle that regulates the conventions regarding people’s entitlements in the production of a society’s pie of wealth. Relatedly, when integrating a sufficiency proviso into a moderate libertarian theory of justice, there is no constant conflict between property rights and sufficientarian concerns, because the sufficiency proviso determines the proper shape and boundaries of property rights right from the beginning. A proviso is a ‘consideration internal to the theory of property itself’, as Nozick puts it (1974, p. 180). There is no overriding of property rights by an external sufficientarian principle of justice, but a sufficientarian proviso in light of which the contours of property rights are specified. These contours, to be sure, might involve an attenuation of property rights to allow certain kinds of intrusions, and so moderate libertarianism and dualist libertarianism might look similar on a practical level. But the former is a more coherent theory of justice. The second problem of dualist libertarianism is that it imports all the objections sufficientarianism faces in the ethics of distribution. There are (at least) three such objections.7 First, it has been argued that a sufficiency principle implausibly requires us to never distribute something in favor of someone above the threshold, as long as there is someone below the threshold, even if the person above the threshold could get a much greater benefit from receiving the thing in question (Arneson 2000, pp. 58-59). This objection does not apply to moderate libertarianism, because a practice of private property is not about distributions of unowned pies among people, some below and some above the threshold. It is not concerned with the ethics of distribution at all. Instead, moderate libertarianism’s sufficiency proviso is concerned with the justification of the rules that determine people’s entitlements to a (hopefully) growing pie: it determines what a justifiable practice of private property is. The sufficiency principle in dualist libertarianism, on the other hand, is a general principle in the ethics of distribution, and so the objection applies to dualist libertarianism. Second, it is often objected that a sufficiency principle can implausibly require spending enormous resources on the severely disabled whose condition nonetheless improves only a tiny little bit (Arneson 2000, pp. 55-56; Casal 2007, pp. 298-299; Benbaji 2006, pp. 332-333; Widerquist 2010). This objection is no problem for moderate libertarianism, because the sufficiency proviso includes the clause that bringing everyone above the threshold must not undermine the point of having a practice of private property. Due to this clause, the proviso can7 Both dualist libertarians and moderate libertarians are well equipped to answer another common objection, namely the objection that the criterion for sufficiency has to be set arbitrarily (Arneson 2000, p. 56; Casal 2007, pp. 312-314). Both dualist and moderate libertarians can point to the project pursuit rationale for sufficientarian libertarianism when determining a non-arbitrary criterion for sufficiency: enabling people to live as project pursuers is the rationale for sufficientarian libertarianism, therefore sufficiency should be understood as ‘sufficiency for living one’s life as a project pursuer’. Admittedly, this is not a very precise threshold – but at least it does not look arbitrary. 9 Wendt: Three Types of Sufficientarian Libertarianism not require spending enormous resources on some persons. In reply, one could argue that dualist libertarianism escapes the objection as well, since it combines the sufficiency principle in the ethics of distribution with libertarian property rights, and the latter could prohibit said enormous spending (all things considered). This is true, but it is counterintuitive enough that the sufficiency principle can require such enormous spending and merely gets outweighed by a concern with libertarian property rights. No such outweighing is taking place in moderate libertarianism, and this makes moderate libertarianism more plausible than dualist libertarianism. Third, it has been objected that sufficientarianism cannot explain the wrongness of discrimination against people above the sufficiency threshold (Temkin 2003, pp. 65-66; Casal 2007, pp. 301-303). This objection does not apply to moderate libertarianism because moderate libertarianism need not explain the wrongness of discrimination. It is not designed as a theory that is to account for all types of distributional injustice. Moderate libertarianism merely rejects egalitarian standards for practices of private property. The sufficiency principle in dualist libertarianism, on the other hand, is a principle in the ethics of distribution, and so it has to face the challenge of explaining the wrongness of discrimination in sufficientarian terms. I do not want to suggest that there are no answers at all to these objections against the sufficiency principle in the ethics of distribution. As a solution to the first and second objections, some try to adjust the sufficiency principle (without renouncing sufficientarianism): Yitzhak Benbaji does not give absolute priority to those below the threshold (2006, pp. 334-337), Christopher Freiman applies the sufficiency principle only to the structure of cooperation, not to individual distributions (2012, pp. 34-37). Maybe sufficientarians can also explain the wrongness of discrimination in some non-egalitarian way (see Huseby 2010, pp. 190-191; Axelsen and Nielsen 2015, pp. 415-418). Space does not allow me to discuss and evaluate such attempts to overcome the objections. The point remains that dualist libertarianism imports three pressing objections, because it incorporates a full-blown sufficiency principle in the ethics of distribution. The advantage of moderate libertarianism is that it straightforwardly avoids them right from the start. 6. Why Moderate Libertarianism Is Better than Welfare Rights Libertarianism In this section I argue that moderate libertarianism also overcomes the main problem of welfare rights libertarianism. Welfare rights have to be understood as claim-rights, of course, not merely as liberty-rights, and claim-rights are conceptually correlated with duties of others. When some person has a claim-right that x, then some other person must have a corresponding duty that x. This holds for welfare rights as well. The main problem for Lomasky’s welfare rights libertarianism, then, is to specify someone who is to bear the duties that correspond to people’s welfare rights.8 8 One may think that there is a more straightforward objection against welfare rights libertarianism: self-ownership and welfare rights are incompatible. But when we do not understand property rights in external resources as an extension of self-ownership (see section 1), then (modest) welfare rights and self-ownership rights actually are compatible. Moreover, libertarians can (and 10 Wendt: Three Types of Sufficientarian Libertarianism One may think that it is the state (or some other professional institutions) that is to bear the duties which correspond to people’s welfare rights. But as the state and all other institutions are artifacts, they cannot be conceived as bearing the duties that correspond to natural rights (or basic rights). Natural rights are supposed to be natural – not conventional and not acquired via promises, contracts and the like – and thus people have them even in the absence of artificial institutions like the state. Because they are correlated with duties, we have to be able to point at some bearer of duties in pre-political settings. This is what distinguishes natural rights (or basic rights) from human rights, at least if human rights are understood as some kind of conventional rights (Beitz 2009; but see also Griffin 2008). Maybe, then, all individual persons bear the duties that correspond to people’s welfare rights. This would mean that every one of us owes everyone else to make sure that he or she has sufficient material goods to be able to live as a project pursuer. There are problems with this solution, too. Imagine a state of nature without a state (and without any private charity institutions) in which everyone is poor; nobody has sufficient resources. I hope you agree that it would be highly odd to claim that everyone is violating everyone else’s rights in that scenario. But maybe things change once the economy grows and some people are doing a little better and come to have sufficient resources? People may indeed have a natural duty to help others, when they can do so at reasonable costs for themselves, and so those who are doing better may have a duty to share some of their wealth with the needy. But while it is plausible to assume such loose (‘imperfect’) natural duties of beneficence or charity, it is implausible to assume that every individual has a duty to help every other individual as a matter of their rights. To assume otherwise would mean that person A violates B’s rights if she does not give resources to B, even when she has provided generous help to C and D. To claim that individual persons bear duties that correlate with natural welfare rights would therefore be grossly overdemanding. Arguably, then, welfare rights can only come into existence when they are institutionalized in one way or another (O’Neill 1996, ch. 5). They are conventional rights, not natural rights. This undermines the idea of a sufficientarian libertarianism that endorses natural (or basic) welfare rights. I see four possible replies a defender of welfare rights libertarianism could give. First, one may try to argue that the duty that correlates with welfare rights is not overdemanding, because it is limited to cases where it can be satisfied without great costs to the duty-bearer: it is a ‘conditional duty’. This will not do, though. Consider that I can only satisfy some people’s welfare rights, not everyone’s. Can anyone complain if I decide to satisfy other people’s welfare rights, but not his or hers? The plausible answer is ‘no’. But if nobody can complain, then it turns out that my conditional duty merely is an imperfect duty after all (i.e. a duty that is not owed to anyone in particular), not a duty that correlates with welfare rights. A second reply is to reject the claim that claim-rights necessarily correlate with duties. One could follow Joseph Raz in saying that rights are dynamic in character and often ground different duties in different circumstances (1986, pp. 170-171). Because they ground duties, rights could be seen as prior to duties and hence not necessarily correlated with duties. If that should) endorse stringent self-ownership rights, but not absolute self-ownership rights. For both reasons, I find this objection against welfare rights libertarianism unconvincing. 11 Wendt: Three Types of Sufficientarian Libertarianism makes sense, then we can assume that people have natural welfare rights without having to find a corresponding duty-bearer in the state of nature. But, in response, a justificatory priority of rights over duties, even if conceded, does not undermine their analytical correlativity (Kramer 1998, pp. 35-41). That rights ‘ground’ duties means that it sometimes makes sense to argue that somebody bears a duty by pointing at someone else’s rights and spelling out what these rights involve under given circumstances. Arguing in this way makes sense when we agree that someone has certain rights, but seem to disagree about what duties these rights correspond with. But that we can argue that way certainly does not show that rights do not correlate with duties. It just means that there sometimes is more agreement about people’s rights than about the corresponding duties. In a third, but related reply, a defender of welfare rights libertarianism may insist that we do not have to be able to specify who the bearer of the correlative duties is. It seems to make sense to speak of people’s rights when we do not have much of an idea who is to have the corresponding duty. To take an example from Jeremy Waldron, we may want to say that a child in Syria has a right to grow up in a peaceful community without knowing who has what duties in this regard (1988, p. 69; see also MacCormick 1977, p. 202). Indeed there are contexts where it does makes sense to speak of rights without being able to point at any corresponding duty-bearer. But these are special contexts in which we want to urge ourselves (or others) to try to determine the corresponding duty-bearer or duty-bearers, and where we are convinced that there is a duty-bearer somewhere. A theory of justice does not work in this kind of special context. In a pre-political state of nature like the one described above, we are not convinced that there is someone who bears duties that correlate with welfare rights. For that reason, a theory of justice that simply postulates rights without being able to identify the corresponding duty-bearer is unconvincing. In a fourth reply, a defender of welfare rights libertarianism may try to argue that basic rights are indeed to be understood as similar to human rights (in their conventionalist interpretation), not as natural rights. People do not have them before there are conventional institutions that bring them into existence. This would indeed circumvent the problem of having to identify the corresponding duty-bearers in the state of nature, but the obvious downside is that we would no longer be able to express sufficientarian worries when there are no conventional institutions that grant people such welfare rights. This seems to undermine the very point of a sufficientarian libertarianism. A sufficientarian libertarian thinks that it is a serious moral problem when people do not have sufficient resources to live as a project pursuers, no matter if there are conventional institutions that grant people certain welfare rights or not. In contrast to Lomasky’s welfare rights libertarianism, moderate libertarianism does not endorse welfare rights and thus avoids the problem of having to specify who the relative dutybearers are supposed to be. There is neither a ‘right to have sufficient resources’ nor a ‘right to a justifiable practice of private property’ in moderate libertarianism. There is just the right to the practice of private property, which, as explained above, encompasses a claim-right not to be excluded from a conventional practice of private property and a moral power to appropriate objects in line with the conventions of a justifiable practice of private property. The sufficiency proviso merely specifies how practices of private property have to work in order to be jus12 Wendt: Three Types of Sufficientarian Libertarianism tifiable. To be sure, justifiable practices of private property may in the end assign some kind of welfare rights to individuals in order to satisfy the sufficiency proviso. But, first, they need not do so, because practices of private property may well meet the sufficiency proviso without assigning welfare rights. Second, such welfare rights, even if they are assigned within a practice of private property, would obviously not be natural rights (or basic rights, as Lomasky prefers to say). They would not be on a par with self-ownership and the right to the practice of private property, but would be introduced on the institutional level, probably in the form of legal rights (or some other form of conventional rights). Still some may feel that moderate libertarianism faces a similar problem to welfare rights libertarianism: Who is to have the duty to bring about a justifiable practice of private property? Who is to have the duty to make sure that an existing practice of private property satisfies the sufficiency proviso? In response, since no person is said to have a right that a justifiable practice of private property is established or that an existing practice of private property meets the sufficiency proviso, there is no pressure to find someone who is to bear a corresponding duty. Moderate libertarianism with its sufficiency proviso does not presuppose any problematic and questionable natural duties. I concede though, that moderate libertarianism may fit well with the assumption of a natural duty of justice to support just institutions (see Rawls 1971, p. 99) that includes a duty to do one’s part in making sure that one’s practice of private property satisfies the sufficiency proviso. But, first of all, to fit well with the assumption of a natural duty to support just institutions does not mean that this assumption is required to make sense of moderate libertarianism. One can uphold moderate libertarianism without accepting that there is such a natural duty. (Conversely, one cannot uphold welfare rights libertarianism without assuming that people have natural duties that correlate with welfare rights). Second, a duty of justice to support just institutions would not be a duty that we owe to other people as a matter of their claim-rights. While all claim-rights correlate with duties, not all duties correlate with claim-rights. The duty to support just institutions would be an imperfect duty again, a duty that is highly contextsensitive in its content and is not owed to anyone in particular. As such, it looks much less problematic than a natural duty that is supposed to correlate with welfare rights. 7. Libertarian Objections against Moderate Libertarianism I argued that moderate libertarianism is superior to other forms of sufficientarian libertarianism because it avoids their problems. But does moderate libertarianism face problems of its own? Many libertarians reject Lockean provisos and so I would like to briefly discuss five of their arguments. A first objection to Lockean provisos is that the concept of justice does not even apply to initial acquisition, because the earth is initially unowned and hence no one has any original rights with regard to external resources (Feser 2005, p. 58). But, in reply, that the earth and its resources are initially unowned does not imply that people do not have any original rights with regard to them (Vallentyne 2007). This is something libertarians have to concede, since they all accept that people have a moral power to appropriate parts of the earth. Powers are (a special kind of) rights. Likewise, then, people could have a moral power to acquire external 13 Wendt: Three Types of Sufficientarian Libertarianism resources in line with justifiable conventional practices of private property that satisfy a sufficiency proviso. Relatedly, a proviso need not be based on the assumption of original common ownership of the earth, as some libertarian objectors have assumed (Narveson 1999, pp. 117118; Hoppe 2001, p. 129n; Long 2006, p. 89). Second, it has been argued that the same moral principles should guide property rights in one’s body and property rights in external resources, since there is no relevant moral difference between them. Both are undeserved and in that sense morally arbitrary. Therefore, a Lockean proviso would also have to place constraints on property rights in our bodies – which of course would be unacceptable (Miller 1982, pp. 275, 282; Machan 2009, p. 94). In reply one should point out that even libertarians who reject Lockean provisos do apply different moral principles in these realms: persons are equipped with natural property rights in their bodies, but the earth and its resources are treated as initially unowned. Accordingly, it also makes sense to apply the proviso to external resources, but not to our bodies. Third, John Sanders claims ‘that if the Proviso were dropped, there would effectively be more and better resources left for others’ (1987, p. 380), because the practice of private property has great economic benefits and precluding resources from becoming private property leads to less and worse goods being produced. Sanders thinks that this shows that the proviso is self-defeating (1987, p. 384). But it does not. His argument can simply be taken to show that a Lockean proviso can often quite easily be satisfied, basically because appropriation helps to overcome the ‘tragedy of the commons’ and makes people better off (Schmidtz 1994).9 For the same reason, a proviso will not prohibit all private acquisition of land, as Murray Rothbard has assumed (1982, p. 244). A fourth objection points out that a Lockean proviso is a ‘critical breach’ with a libertarian theory of justice because it introduces a non-historical element into the theory (Paul 1988, pp. 248, 252, 255). Since Nozick (1974, pp. 153-160), libertarian justice is conceived as ‘historical’ because the justice of property titles is supposed to completely depend on their history. They must be based on a just initial acquisition or a just transfer. In contrast, non-historical patterned principles of justice prescribe a certain pattern of distribution that the institutions of a just society should tend to realize. Nozick has denied that his proviso introduces a nonhistorical patterned element into his libertarian theory of justice because the proviso ‘focuses on a particular way that appropriative actions affect others, and not on the structure of the situation that results’ (1974, p. 181). Many have remained unconvinced by that response. Here I do not want to debate who is right about Nozick’s proviso. The sufficiency proviso, however, certainly is non-historical and patterned. But I do not see this as a worry. It is possible, and indeed plausible, to combine entitlement generating historical principles with non-historical principles that have the same rationale and do not undermine the working of the historical principles. This is especially so when both historical and non-historical principles can be seen as complementary parts within a practice of private property. 9 Schmidtz even claims that a Lockean proviso could require appropriation (1990). I would not go that far, because the function of a Lockean proviso is not to generate moral requirements or moral duties, but to specify what appropriations (or practices of private property) are justifiable. 14 Wendt: Three Types of Sufficientarian Libertarianism A fifth objection says that the very point of a libertarian theory of justice is lost once we introduce a proviso. Take Rawls’s theory of justice. In that theory, some personal property is granted by Rawls’s first principle of justice (1971, p. 61; 1993, p. 298), private property rights in the means of production are regarded as part of the institutionalization of the second principle of justice (1971, pp. 270-274, 280-281; 1993, p. 338). On this picture, social or distributive justice comes first, property rights are something derived from or granted by principles of justice. The point of a libertarian theory of justice is that it treats property rights as morally basic, not something derived from principles of social or distributive justice. But once we introduce a proviso, so the objection goes, property rights no longer seem to be basic. The reply simply is that property rights are not derived from the proviso, in a libertarian theory of justice, and hence they stay morally basic. But one could modify the objection and insist that once we introduce a proviso, the moral status of property rights looks as provisional as in theories that treat them as derivatively justified within a theory of social or distributive justice. There is certainly some truth to this. Let me give an answer from the specific perspective of moderate libertarianism with its sufficiency proviso. The sufficiency proviso is a proviso for the practice of private property as a whole. And a justifiable practice of private property does not in a first step grant stringent property rights just to let them be trumped by the proviso in a second step. There are no two steps. A justifiable practice of private property determines the shape and boundaries of private property rights in a way that satisfies the proviso right from the start. Once people have property rights, as determined by a justifiable conventional practice that satisfies the proviso, all kinds of distributional patterns can result from the free exchange and initial appropriation of property. In that sense, property rights are not only morally basic, but reasonably robust and not merely provisional, according to moderate libertarianism. Admittedly, though, a practice of private property might have to attenuate rights and allow certain kinds of intrusions, in order to satisfy the proviso. It may involve taxation, for example. In that sense, property titles may indeed be regarded as ‘provisional’ in moderate libertarianism. Property rights, probably including self-ownership rights, will thus not be ‘absolute’ or hold ‘unconditional’. On the other hand, every theory that allows for (e.g.) intrusions of rights in cases of emergency, self-defense or (minor forms of) pollution will have to attenuate rights (Mack 2011, pp. 111-114; Wendt 2016, pp. 101-109). If a libertarian theory of justice is to be plausible at all, property rights have to be regarded as ‘provisional’ in this specific sense. There is nothing worrisome about this. I should also admit that once a practice of private property violates the sufficiency proviso, property titles may become subject to duties of compensation (even though the main point of the sufficiency proviso is more forward-looking). This is another sense in which property titles may be regarded as ‘provisional’ in moderate libertarianism. But again this is not a worry, but something one should endorse. It is not even something particularly ‘anti-libertarian’ (if one cares about that). Even libertarians who reject all kinds of Lockean provisos accept that people can have claims of compensation when their rights have been violated. Moderate libertarians simply add that a sufficiency proviso should be regarded as an integral part of 15 Wendt: Three Types of Sufficientarian Libertarianism people’s natural right to the practice of private property and can therefore give rise to claims of compensation, too.10 References Anderson, Elizabeth. 1999. What is the Point of Equality? Ethics 109: 287-337. Arneson, Richard. 2000. Perfectionism and Politics. Ethics 111: 37-63. Arneson, Richard. 2010. Self-Ownership and World-Ownership: Against Left-Libertarianism. Social Philosophy and Policy 27: 168-94. Axelsen, David V. and Lasse Nielsen. 2015. Sufficiency as Freedom from Duress. Journal of Political Philosophy 23: 406-26. Beitz, Charles. 2009. The Idea of Human Rights. Oxford: Oxford University Press. Benbaji, Yitzhak. 2005. The Doctrine of Sufficiency: A Defense. Utilitas 17: 310-32. Benbaji, Yitzhak. 2006. Sufficiency or Priority? European Journal of Philosophy 14: 327-48. Brown, Campbell. 2005. Priority or Sufficiency …or both? Economics and Philosophy 21: 199-220. Casal, Paula. 2007. Why Sufficiency is not enough. Ethics 117: 296-326. Crisp, Roger. 2003. Equality, Priority, and Compassion. Ethics 113: 745-63. Feser, Edward. 2005. There is no such Thing as an Unjust Initial Acquisition. Social Philosophy and Policy 22: 56-80. Frankfurt, Harry. 1987/1988. Equality as a Moral Ideal. In The Importance of what We Care about, 134-58. Cambridge: Cambridge University Press. Freiman, Christopher. 2012. Why Poverty Matters most: Towards a Humanitarian Theory of Social Justice. Utilitas 24: 26-40. Fried, Charles. 1978. Right and Wrong. Cambridge, MA: Harvard University Press. Griffin, James. 2008. On Human Rights. Oxford: Oxford University Press. Hohfeld, Wesley N. 1913/2001. Fundamental Legal Conceptions as Applied in Judicial Reasoning. Burlington: Ashgate. Hoppe, Hans-Hermann. 2001. Democracy: The God that Failed. New Brunswick: Transaction. Huseby, Robert. 2010. Sufficiency: Restated and Defended. Journal of Political Philosophy 18: 178-97. Kramer, Matthew. 1998. Rights without Trimmings. In M. Kramer, N. Simmonds and H. Steiner: A Debate over Rights, pp. 7-112. Oxford: Clarendon Press. Locke, John. 1689/1960. Two Treatises of Government. Cambridge: Cambridge University Press. Lomasky, Loren. 1987. Persons, Rights, and the Moral Community. Oxford: Oxford University Press. Lomasky, Loren. 1995. Justice to Charity. Social Philosophy and Policy 12: 32-53. 10 I would like to thank Kasper Ossenblok and several anonymous reviewers for their helpful comments. 16 Wendt: Three Types of Sufficientarian Libertarianism Lomasky, Loren. 2000. Liberty and Welfare Goods: Reflections on Clashing Liberalisms. Journal of Ethics 4: 99-113. Long, Roderick. 2006. Land-Locked: A Critique of Carson on Property Rights. Journal of Libertarian Studies 20: 87-95. MacCormick, Neil. 1977. Rights in Legislation. In Law, Morality, and Society, eds. P. Hacker and J. Raz, 189-209. Oxford: Clarendon Press. Machan, Tibor. 2009. Self-Ownership and the Lockean Proviso. Philosophy of the Social Sciences 39: 93-8. Mack, Eric. 2010. The Natural Right of Property. Social Philosophy and Policy 27: 53-78. Mack, Eric. 2011. Nozickian Arguments for the More-than-Minimal State. In The Cambridge Companion to Anarchy, State, and Utopia, eds. R. Bader and J. Meadowcroft, 89-115. Cambridge: Cambridge University Press. Maloberti, Nicolás. 2009. Libertarianism and the Possibility of the Legitimate State. Libertarian Papers 1: Art. No. 5. Miller, Fred. 1982. The Natural Right to Private Property. In The Libertarian Reader, ed. T. Machan, 275-87. Totowa: Rowman & Littlefield. Narveson, Jan. 1999/2012. Property Rights: Initial Acquisition and Lockean Provisos. In Respecting Persons in Theory and Practice, 111-29. Lanham: Rowman and Littlefield. Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books. Nussbaum, Martha. 2006. Frontiers of Justice. Cambridge: Cambridge University Press. O’Neill, Onora. 1996. Towards Justice and Virtue. Cambridge: Cambridge University Press. Ossenblok, Kasper. 2017. Self-Ownership and World-Ownership: A Quest for Plausible Libertarianism. PhD thesis, Ghent University. Available at https://biblio.ugent.be/publication/8543979. Parfit, Derek. 1997. Equality and Priority. Ratio 10: 202-21. Paul, Jeffrey. 1988. Historical Entitlement and the Right to Natural Resources. In Man, Economy, and Liberty, eds. W. Block and L. Rockwell, 247-65. Auburn: Ludwig von Mises Institute. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press. Rawls, John. 1993. Political Liberalism. New York: Columbia University Press. Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Rothbard, Murray. 1982/1998. The Ethics of Liberty. New York: New York University Press. Sanders, John. 1987. Justice and the Initial Acquisition of Private Property. Harvard Journal of Law and Public Policy 10: 367-400. Schmidtz, David. 1990. When is Original Appropriation Required? The Monist 73: 504-18. Schmidtz, David. 1994. The Institution of Property. Social Philosophy and Policy 11: 42-62. Shields, Liam. 2012. The Prospects for Sufficientarianism. Utilitas 24: 101-17. Shields, Liam. 2016. Just Enough. Edinburgh: Edinburgh University Press. Simmons, A. John. 1992. The Lockean Theory of Rights. Princeton: Princeton University Press. Simmons, A. John. 1995/2001. Historical Rights and Fair Shares. In Justification and Legitimacy. Cambridge: Cambridge University Press, pp. 222-48. 17 Wendt: Three Types of Sufficientarian Libertarianism Temkin, Larry. 2003. Equality, Priority or what? Economics and Philosophy 19: 61-87. Vallentyne, Peter. 2007. On Original Appropriation. In Liberty, Games and Contracts, ed. M. Murray, 173-8. Aldershot: Ashgate. Waldron, Jeremy. 1988. The Right to Private Property. Oxford: Oxford University Press. Wendt, Fabian. 2016. Political Authority and the Minimal State. Social Theory and Practice 42: 97-122. Wendt, Fabian. 2017. The Sufficiency Proviso. In Routledge Handbook of Libertarianism, eds. J. Brennan, B. van der Vossen and D. Schmidtz, 169-83. London: Routledge. Widerquist, Karl. 2010. How the Sufficiency Minimum Becomes a Social Maximum. Utilitas 22: 474-80. 18