Iowa Law Review

January, 1992

Symposium: Corrective Justice and Formalism

The Care One Owes One's Neighbors
*515 THE BASIS OF CORRECTIVE JUSTICE AND ITS RELATION TO DISTRIBUTIVE
JUSTICE
Peter Benson [FNa]

Table of
Contents

Introduction .............................................................. 515

I. The Aristotelian Conception of Corrective Justice ................... 529

A. A Contrasting View of Corrective Justice ......................... 529

B. The Difference Between Justice and Other Virtues ................. 533

C. The Difference Between Distributive and Corrective Justice ....... 535

1. Distributive Justice ......................................... 535

2. Corrective Justice ........................................... 538

3. A Concluding Remark on Equivalence in Exchange ............... 547

II. The Basis of Corrective Justice ..................................... 549

A. A Constructivist Interpretation of the Moral Point of View ....... 550

B. Specific Conceptions of the Persons and of Right for Corrective

Justice: Personality and Abstract Right ........................... 559

III. First Principles of Justice for Transactions ........................ 578

A. Bodily Integrity ................................................. 581

B. First Acquisition ................................................ 584

C. Derivative Acquisition ........................................... 591

IV. The Relation Between Corrective Justice and Distributive Justice .... 601
 Introduction
Over the centuries, writers have proposed different conceptions of corrective and distributive justice. Thus,
Aristotle and Thomas Aquinas understood them in one way, Hobbes and Grotius in another, and Kant and Hegel in
still another. And the same is true of contemporary legal and political theory. Despite such differences, however,
corrective justice has usually been thought of as comprising those principles that directly govern private transactions
between individuals. In developed legal systems, these principles are generally embodied in the law of contract,
torts, and unjust enrichment. By contrast, the concept of distributive justice has been viewed as including those
principles that ought to regulate the fair distribution of *516 common burdens and benefits among individuals or
groups of individuals. A system of income taxation is an example of a scheme coming under distributive justice.

The topic of this Essay is corrective justice and its relation to distributive justice. My aim is to present a conc
eption of corrective justice, to account for its nature and basis from a suitably specified moral point of view, and to
investigate its relation to distributive justice. I would like to explore two related questions. First, I want to determine
whether it is possible to understand and to justify corrective justice in terms that are wholly distinct from all
considerations of distributive justice; and if so, to see what this conception of corrective justice must entail. In this
connection, it will be necessary to investigate whether there are first principles of corrective justice that can be fully
analysed and validated in their own right, without referring in any way to first principles of distributive justice.
Answering this question is the primary task of the Essay. But there is, in addition, a second matter that I wish to
discuss, namely, how corrective and distributive justice are related to each other. The issue is this. If it can be shown
that corrective and distributive justice do in fact have irreducibly different characteristic requirements, are they
conflicting or even irreconcilable, as certain authors have argued? Or, on the contrary, can the two be fitted together
in a way that gives full expression to the distinctive features of each? In this regard, it is important to consider
whether, for instance, there is a relation of priority between corrective and distributive justice such that from a moral
point of view the requirements of one of them can properly be said to constrain the permissible content and
application of the other. [FN1] At stake here is the possibility of suitably uniting corrective and distributive justice.

There are several reasons why it is important to focus on these particular questions in a discussion about
corrective justice. Certainly we should do so if this might possibly help us clarify the basis and the content of what
Rawls calls our considered judgments of justice. If indeed it were to turn out upon investigation that corrective
justice has a form and a normative foundation of its own and that its requirements may legitimately constrain what is
to count as a permissible conception of distributive justice, this would be of the first importance for the way in
which we develop and organize those considered judgments. So this alone justifies a decision to focus on these
questions.

*517 In addition, there are other reasons which suggest this line of inquiry. For one, the history of the
philosophical treatment of justice stretching from at least Aristotle to Kant and Hegel may be viewed in large part as
a series of interconnected if different responses to these questions. Exploring these questions will thus permit us to
participate in this tradition of thought, and such participation is, in my view, essential to the achievement of real
depth of insight into these matters. Another reason is this. Among the most interesting and seemingly intractable
disagreements in the public legal cultures of developed legal systems are those over the appropriate way to
understand and to relate the different claims of liberty and equality as these bear on the basic principles, doctrines,
and institutions of private and public law. [FN2] On analysis, differences over how liberty and equality are to be
construed and balanced often seem to be rooted-whether implicitly or explicitly-in conflicting assessments of the
validity and the scope of nondistributive conceptions of entitlement. To take an example from private law, during
this century the most important disputed questions in the law of contract have been explicitly framed in terms of the
appropriate roles for corrective and distributive justice. [FN3] By focusing on the particular questions mentioned
above, the aim is to help resolve such disagreements.

Accounts of justice in recent political theory provide a final reason for the topic of this Essay. One of the most
interesting disagreements among writers is over the nature and the significance of the challenge posed by so-called
entitlement theories to egalitarian liberal conceptions of justice. [FN4] Nozick's libertarian theory is the most
influential example of the first, Rawls's account of justice as fairness the most important representative of *518 the
second. [FN5] Nozick's claim is that Rawls's account, and in particular its second principle of justice, [FN6] is
incompatible with and excluded by entitlement theory. Now while Nozick refers to his entitlement theory as a
version of distributive justice, its purely historical character [FN7] as well as its particular content (consisting of
principles of first acquisition and of transfer) mark it as the kind of theory that the philosophical tradition has in
general viewed as nondistributive in conception, at least whenever it has drawn a distinction between corrective and
distributive justice. The disagreement between Nozick and Rawls seems to raise then in a contemporary setting the
longstanding question of the relation between corrective and distributive justice. But it has not been adequately
settled. Let me elaborate.

For present purposes, I think Nozick's entitlement theory may fairly be interpreted as making the following
three claims with respect to the conditions that conceptions of justice must satisfy. First, it holds that, at least in ideal
theory, the subject of justice in holdings is to be framed in terms of entitlements to holdings, and that such
entitlements are exhaustively established in accordance with appropriate principles of justice in acquisition and in
transfer. [FN8]

Second, according to Nozick, considerations internal to the entitlement theory require that there be a proviso
that qualifies the operation of its principles. In his view, the required proviso will be similar to what he calls a weak
Lockean proviso. In his version, the proviso precludes individual appropriation and the establishment of an
entitlement if the position of those no longer at liberty (in Hohfeld's sense) to use the appropriated thing is thereby
worsened. This proviso constitutes at once a minimum and a maximum condition that constrains the processes of
*519 legitimate appropriation. [FN9]

The third and perhaps most important claim is this: The entitlement theory is to be taken as fundamental.
[FN10] This means that entitlements established by the operation of the principles of justice in holdings must be
given something like lexical priority vis-à-vis other normative considerations and interests in a conception of justice.
While Nozick does not explicitly say that such entitlements are to have lexical priority, his objection to patterned
theories of justice, [FN11] and in particular to Rawls's account, must ultimately rest on a claim of this sort. For the
existence of particular entitlements to particular things fixes, as he says, the external environment in which
individuals' needs and interests, however pressing or substantial, may legitimately be met: "no rights exist in conflict
with this substructure of particular rights." [FN12] Such rights are not displaced by general claims to be in a certain
material condition. On the contrary, conditions of what Rawls calls "background justice" [FN13] must be justified
consistently with this substructure. Nozick's view is that liberty requires that persons have the right to own things
and the right to do with them as they wish, subject only to the requirement to respect the equal rights of others and
the constraints of the Lockean proviso. But however large or small the extent of this sphere of liberty, the claim is
that considerations of distributive justice are to be satisfied within a context that is set by these entitlements. We
must, as it were, begin from the latter in framing a conception of justice. Thus any proposed procedures for
justifying alternative conceptions of justice (such as the original position procedure in Rawls's theory) must
incorporate the historical principles of acquisition in a way that both preserves their distinctive justification and
respects their lexical priority. The attempt to derive these principles from a nonentitlement theory will, Nozick
contends, result in a justification that is based on the wrong sort of reasons, yielding at best principles that happen to
coincide with or to approximate what an entitlement conception requires when it is treated as fundamental. The *520
requirements of the entitlement theory impose genuine constraints on the construction and the operation of
procedures of justification.

According to Nozick, Rawls's theory is ruled out as a legitimate conception of justice because its second
principle, in particular the difference principle, goes well beyond the weak Lockean proviso, thus infringing the
second condition, and because the original position procedure, in particular the veil of ignorance, does not respect
the historical principles of appropriation as fundamental, in violation of the third condition. Together these
objections come to this: The relatively strong constraints of the difference principle have not been justified on a
basis that takes the entitlement conception as fundamental. When Nozick objects that the original position procedure
treats anything to be distributed as manna from heaven, he is to be taken as saying, I believe, that this procedure
wrongly suggests that persons' claims to a fair distribution may be modelled independently of the fact that
individuals can have particular entitlements to things in virtue of the principles of acqusition and transfer and that
such entitlements determine the context in which distribution is to take place. [FN14] *521 Nozick's contention is
that since the original position procedure does not treat any historical conception of entitlement as effectively
constraining ab initio the parties' choice of distributive principles, it must be illegitimate, given that some such
historical entitlement theory must be supposed as fundamental. By making this limited supposition, Nozick thinks
that one can disqualify Rawls's account, and specifically the justification of the second principle, without having
positively to work out and to defend a definite substantive theory of entitlements. [FN15]

To prevent misunderstanding it should be emphasized that Nozick's objection goes mainly to the form of
justification that Rawls provides for the difference principle. For this reason, it does not rule out the possibility that
the difference principle, or something like it, might be derivatively justified on some other basis that respects the
entitlement conception as fundamental. [FN16] Nozick's claim, in sum, is that liberty requires the recognition of
purely historical, unpatterned principles of justice in holdings and that the entitlements engendered by these
principles impose antecedent constraints on the construction and application of any conception of distributive
justice.

Yet there are difficulties internal to the argument. A basic problem is that, contrary to Nozick's second claim,
there does not seem to be any intrinsic connection between the entitlement theory on the one hand and the weak
Lockean proviso on the other. Let me explain.

Recall that the proviso sets a baseline of well-being which must not be diminished by appropriation. What must
be maintained is the level of well-being that nonowners would actually enjoy if they were still at liberty to make use
of the appropriated thing as their individual powers and circumstances permitted. To determine whether, and on
what basis, the entitlement theory itself might require something like this proviso, we ask: Under what conditions
does this theory prescribe the maintenance of any level of well-being? Now if the principles of entitlement are to be
normatively regulative, as they are supposed to be on this conception, a loss in welfare cannot as such give rise to an
issue of justice. It is essential that the diminution in well-being be related to the loss of something which a person
can correctly claim to be his or her own in light of the conception of entitlement itself. But the kind of loss
envisaged by the proviso is one that relates only to a person's (Hohfeldian) liberty to use things. The liberty is not
*522 a (claim) right, and it is not conferred by, although it must be consistent with, the principles of appropriation.
A mere liberty to do something is a permission resulting from the fact that the action does not violate anyone's
(claim) rights. [FN17] Since, on Nozick's theory, a right to external objects (in contrast to one's body) can only be
established on the basis of the principles of appropriation, persons have a liberty to use objects prior to their being
acquired by others in accordance with those principles. Yet being merely a liberty, it must give way before another's
right, so that once acquisition has taken place the liberty necessarily ceases to exist. Far from constraining the
acquisition of rights, a liberty exists only in virtue of their absence. It fills, as it were, the space left unoccupied by
rights. Consequently, there is nothing in the entitlement conception to justify invoking a baseline, which represents
a level of well-being associated only with a mere liberty, to restrict the free operation of the principles of
appropriation, which establish rights. From the standpoint of the entitlement theory, a loss in present and future
well-being, which results from the extinction of a liberty in the face of a right, cannot by itself give rise to a claim in
justice. If, as Nozick says, the Lockean proviso casts its shadow over the processes of just appropriation, this must
rest on grounds that are external-and not, as he contends, internal-to the entitlement conception. [FN18]

Now offhand, reference to any such proviso seems to reflect a concern about the fairness of the initial situation
which sets the scene for the operation of the principles of appropriation. The thought is that people's starting points
ought to be fair in a way that is not reducible to, but in fact constrains, justice in acquisition and transfer. In short,
the concern here is over background justice. But if this is so, the weak Lockean proviso is inadequate because it
allows too many factors that seem prima facie arbitrary from a moral point of view to determine starting points.
Notice how the baseline is deeply and permanently affected by a variety of contingencies that decide whether and to
what extent persons are actually able to make use of things and thereby benefit themselves, assuming that they are at
liberty to do so. Individuals' baselines of well-being will vary in the light of their different native endowments, their
often unchosen personal, familial, and social circumstances, and their chance proximity to usable things, to mention
but a few factors that do not depend on individual choice or intention. The difficulty is, then, that in determining fair
starting points, the baseline directly incorporates the arbitrariness of nature and *523 circumstance. [FN19]

To avoid the arbitrariness in the Lockean proviso, a theory of justice might try to elaborate special principles to
secure adequately genuine background justice and then, in tandem with these principles, allow for a quite different
set of rules that apply directly to the acquisition and the transfer of holdings. This view envisages, then, a division of
labour between the two sorts of principles, with the principles of background justice determining the space within
which the principles of appropriation are permitted to operate. A division of labour of this kind would appear to take
seriously the requirements of background justice, while at the same time recognizing a significant if subordinate role
for the principles in the entitlement conception. In general, egalitarian liberal theories of justice, most notably
Rawls's, adopt this approach. [FN20]

Yet while this approach may do away with the arbitrariness of the Lockean proviso, it does not settle a basic
question that is central to the challenge posed by entitlement theory. For given the absence of an intrinsic connection
between the latter's first principles and the Lockean proviso, an entitlement theory might coherently respond by
dropping the proviso althogether and by attempting to work out a distinctive conception of justice that consists of
principles of appropriation unconstrained by any such proviso. Such a pure entitlement theory, as I shall call it,
would have to be justified from a moral point of view, but in a manner that need not refer at all to the sort of
considerations of background justice discussed above. In this way, the theory would not be vulnerable to the
difficulties raised against the Lockean proviso. A central contention of a pure entitlement theory would be that its
first principles, while not necessarily the whole of justice, [FN21] do impose significant antecedent constraints on
whatever else is to qualify as a part of justice. This is how the claim concerning the fundamental character of the
entitlement conception would now be presented. In this way, the question of the possible lexical priority of a purely
nondistributive conception of justice would be squarely posed.

Now characteristically, prevailing egalitarian liberal theories do not investigate this question. They begin from
the intuitively compelling idea *524 that a complete conception of justice must include definite requirements of
background justice that suitably answer legitimate human needs. While it seems entirely reasonable to hold that any
complete treatment of justice must at some point take these considerations into account, the difficulty for present
purposes is that most of these theories do not allow for the possibility of any other standpoint. [FN22] Unless one is
willing to set these considerations aside at least provisionally, one will not be in a position to determine whether,
after all, there might be a quite different part of justice that does not in any way refer to background fairness or to a
conception of human needs. Only if we try to take up this different standpoint will we be able to ascertain whether
there can be a pure entitlement conception of justice the character and the basis of which fit it to be the lexically first
part of a complete account of justice.

More specifically, the usual procedure of egalitarian liberal theories is to work out the requirements of
background justice independently of and without reference to appropriate first principles of acquisition and transfer.
On their face, such theories proceed as if the principles of appropriation are not to be viewed as lexically prior to the
principles of background justice. But while this may turn out to be case, it cannot, of course, simply be assumed.
Nothing short of investigating whether there can be a pure entitlement conception and whether this conception can
validly constrain the elaboration of principles for background justice will suffice. Similarly, it is not enough to
postulate a division of labour between principles on the basis that, standing alone, just principles of appropriation are
inadequate to preserve background fairness. A philosophical account of justice must attempt to explicate how such a
division of labour is possible and why it must assume one form rather than another. If, as is generally supposed, the
principles of appropriation rest on a moral basis that is distinct from, albeit related to, that of the principles of
background justice, then we must determine what that moral basis is, whether it allows for a domain to be regulated
by the requirements of background justice, and finally, what constraints, if any, it imposes on the specific content
and scope of background principles. Depending on the answers to these questions, certain conceptions of the
division of labour may be ruled out as being inconsistent with what the principles of appropriation entail. In sum,
unless we are able to explain the specific character and basis of each set of principles and to show the relation
between them, a complete account of justice or a proposed division of labour between principles must remain an
idea that is merely postulated rather than rationally established and elucidated. A philosophical treatment of justice
cannot avoid these questions.

To prevent misunderstanding, I should emphasize that my point here is simply that egalitarian liberal theories
do not settle from their own characteristic standpoints the question of the possibility and the scope of a *525 pure
entitlement conception; yet answering it is indispensable to the full explication of their claims and to the systematic
articulation of a complete account of justice. I am not suggesting that an egalitarian liberal theory cannot incorporate
or be consistent with a part of justice that has the features of a pure entitlement conception. On the contrary, there is
no basis for saying a priori that just principles of appropriation embodying an entitlement conception cannot be
fitted together with other principles securing background fairness as genuinely integrated parts of a whole.

Certainly Nozick does not show this is the case. It has often been noted that he does not account for the first
principles of acquisition. It should also be emphasized that he does not explain why they must be taken as
fundamental. [FN23] But absent this account, it does not seem possible to say *526 what constraints, if any, pure
entitlement principles must impose on other considerations in a conception of distributive justice. And even
supposing these principles to be fundamental, one cannot conclude, as Nozick does, that Rawls's derivation of the
principles of justice is wrong just because entitlement principles would not be chosen by the parties in the original
position as set up by Rawls. As Rawls has made clear, the original position is not framed to provide a standpoint for
the justification of all principles of justice, but only of those belonging to the basic structure of society and, in
particular, of those pertaining to background justice. Taken by itself, then, the fact that the original position
procedure does not yield first principles of acquisition in holdings does not make it necessarily incompatible with
entitlement theory. Indeed, on Rawls's approach, it is to be expected that the justification of principles of acquisition
that directly apply to transactions may have to be undertaken from a differently characterized standpoint. And when
this is done, it may turn out after all that the constraints imposed even by lexically prior entitlement principles are
considerably weaker than Nozick has assumed. To repeat, whether a fit is possible can be determined only by
carefully working out and justifying a substantive purely nondistributive entitlement theory, and by seeing how its
particular principles and normative foundation relate to those of a given egalitarian conception. There seems to be
no other way to settle this question. The needs of contemporary theory thus lead us to pose the very set of questions
which this Essay seeks to answer; namely, the possibility of a conception of corrective justice that is indifferent to
considerations of need and of background justice, and the relation of priority between this conception and a theory
of distributive justice.

The Essay is divided into four Parts.

In Part I, I want to present in a merely preliminary way a conception of corrective justice that seems on its face
to have features which mark it as truly distinct from and irreducible to distributive justice. This is the first step in
carrying out the primary task of the Essay which, to repeat, is to see whether we can explain the nature and basis of
corrective justice without referring in any way to distributive considerations. While there are a number of different
conceptions of corrective justice that might be considered here, I shall choose the one which historically has exerted
the most lasting influence in the philosophical tradition and legal scholarship and which was understood for almost
two millennia as representing a form of justice that is categorically different from distributive justice. I am referring
to Aristotle's seminal account of corrective justice in Book Five of the Nicomachean Ethics. Although history and
the very nature of Aristotle's claim recommend his discussion for the purposes of the present Essay, we certainly
could have chosen some other conception for our starting-point. In fact, by way of comparison, I do consider briefly
a contrasting view. What confirms the propriety of a given choice is that upon analysis the conception turns out to be
coherent and rational in its own terms as well as justifiable in the needed way. I hope to show that Aristotle's
conception of corrective justice satisfies these desiderata.

*527 In this first Part then, I elucidate what I call the "Aristotelian thesis." This thesis makes explicit certain
leading ideas in the Aristotelian tradition, as they were first set forth by Aristotle and further developed by Thomas
Aquinas. The thesis holds that corrective and distributive justice constitute two qualitatively distinct and mutually
irreducible forms of justice. While corrective and distributive justice share the normativity proper to justice, they
express it in two genuinely different ways. On this view, each is characterized by a set of normative features that
combine into a coherent and distinctive whole. In particular, each has, relative to the other, its own conception of the
person, of entitlement, of equality, and, finally, of the type of social relation to which it applies. My aim in Part I is
to establish that in virtue of its defining features corrective justice qualifies as a truly distinct and relatively self-
contained form of justice. The further tasks of grounding the proposed conception of corrective justice and of
indicating the nature of its relation to distributive justice are taken up in the remaining Parts of the Essay.

Parts II and III address the question of justification. My object here is to show that the conception of corrective
justice presented in Part I can be accounted for from a suitably characterized moral point of view. The argument is
developed in three steps. First, I sketch one plausible interpretation of the moral point of view which, following
Rawls, I term constructivist. The constructivist conception is not here defended as superior to other conceptions of
normativity. Rather, I shall simply present it, describe its essential features, and suggest that it embodies a normative
view of ourselves as responsible agents which on reflection we can readily endorse. On this conception, the moral
point of view is nothing other than that standpoint in virtue of which we can judge ourselves as accountable. In a
second step, I set forth a notion of obligation and entitlement that at once satisfies the requirements of a
constructivist interpretation of normativity and fits the conception of corrective justice presented in Part I. This
notion of obligation and entitlement I characterize as juridical, in contrast to ideas of obligation that are either
political or ethical in nature. Correspondingly, my formulation of the constructivist account is itself specific to the
juridical conception. This completes Part II. In Part III, I take up the final step which consists in the development of
first principles of right that embody the juridical conception of obligation. They are justified without reference to
any considerations of background justice or, more generally, of distributive justice. These principles articulate an
innate right to bodily integrity and the elementary forms of rightful acquisition. They are definite first principles for
a pure entitlement conception of justice.

It should be stated here at the outset that I do not claim any originality for the argument presented in Parts II and
III. Quite the contrary. It is found, for example, in the work of Kant and Hegel, where it is developed with
systematic rigour and much subtlety. This having been said, my aim is not to present an interpretation of these great
thinkers but to understand corrective justice in terms of its fundamental postulates. The goal throughout is to form an
argument that can stand on its own feet.

Having provided grounds for a conception of corrective justice and for first principles of right that are wholly
independent of distributive considerations, I turn in Part IV to the question of the relation between corrective *528
and distributive justice. First, I explain why, on the constructivist account I have presented, corrective justice must
be viewed as lexically prior to distributive justice. This settles, I believe, the question of whether there can be an
entitlement theory that is fundamental in the sense intended by Nozick. But, in contrast to Nozick's view, I then go
on to show why corrective justice, that is, the pure entitlement theory worked out in Parts II and III, cannot properly
claim to be the whole of justice. Necessarily, there must be a transition to a different conception that incorporates
requirements of background justice. This immediately gives rise to the issue of what content of corrective justice
must be retained in that transition if its lexical priority is to be complied with. Here, I underline the limited nature of
what its lexical priority implies, suggesting why, for example, Rawls's theory, in particular his second principle of
justice and his idea of a division of labour between principles, satisfy the requirements of corrective justice. My
conclusion here differs markedly from Nozick's. On the other hand, the lexical priority of corrective justice does, I
argue, impose significant constraints that rule out certain conceptions of distributive justice; for instance, a
conception that does not recognize the priority of a system of basic liberties relative to the claims of social and
economic well-being. In this fourth and final Part, the discussion is highly selective and presented in a manner that is
more suggestive than demonstrative. It is intended as a preliminary and necessarily limited contribution to the
following question: Can Rawls's political conception of justice, which is widely (and in my view correctly) regarded
as the most systematic contemporary theory of distributive justice, be united with a juridical conception of corrective
justice on the basis of a common, suitably characterized normative standpoint, yet in such a way that the distinctive
features of each are preserved and accounted for? Answering this question brings us closer to having a complete
theory of justice.

A final remark. The present Essay does not attempt to present a complete theory of corrective justice. It views
corrective justice solely as an ideal justificatory structure that regulates considered judgments of justice and it seeks
to identify and explicate fully the normativity specific to corrective justice, its internal morality as it were. There is a
second dimension which it does not investigate and which, if it did, might well require a discussion of a different
sort. I am referring to the question of how this ideal justificatory structure is authoritatively realized in a public
institutional setting. Under this other aspect, we would want to know whether there is an institutional form that is
proper to corrective justice, one that is legitimate just insofar as it actualizes corrective justice; and further, whether
application in an institutional context changes the content of corrective justice, as certain thinkers have suggested.
[FN24] A theory of private law or a full account of the role of corrective justice in the context *529 of the state
presupposes that both dimensions have been adequately elucidated. By contrast, the entire discussion in this Essay,
both of the nature and basis of corrective justice and of its relation to distributive justice, is limited to the pre-
institutionall analysis. Put in traditional terms, this Essay presents an account of corrective justice as it is in the state
of nature. Yet, as I hope to show, it constitutes the first essential step toward a complete theory of justice.

I. THE ARISTOTELIAN CONCEPTION OF CORRECTIVE JUSTICE

In this Part, I present the Aristotelian understanding of corrective justice. I begin by considering an alternative
and contrasting view which is widely presupposed in contemporary legal and political theory. I argue that this view
leads to an impasse, given that the aim is to find a conception of corrective justice that truly distinguishes it from
distributive justice. The rejection of this current view paves the way for the discussion of the more promising
Aristotelian approach. This discussion is organized around two sets of contrasts: That between justice and other
virtues, and that between distributive and corrective justice. The second contrast presupposes and gives further
specificity to the first. The overriding purpose of this Part is to make explicit the idea of entitlement that Aristotle,
and after him Aquinas, associate with corrective justice. For the Aristotelian view is that distributive and corrective
justice have categorially distinct notions of entitlement. To accomplish this end, I suggest an idea of entitlement that,
while consistent with and rooted in the relevant texts, is not expressly set forth by either thinker. I conclude by
noting certain lacunae in their discussions which I hope to remedy in Parts II and III: First, neither Aristotle nor
Thomas Aquinas provides the kind of normative justification which their conception of corrective justice seems to
require; and second, both thinkers fail to explain the principle of equivalence in exchange, even though its
explanation is crucial to the validation of their accounts of corrective justice.

A. A Contrasting View of Corrective Justice

To begin, and by way of comparison, I wish to consider an understanding of corrective justice that seems to be
widely presupposed in contemporary legal and political theory and that differs fundamentally from the Aristotelian
conception. [FN25] A discussion of this view will bring out *530 more clearly what we should look for in a
conception of corrective justice if it is to be distinct from distributive justice in the required way.

To simplify, this current understanding of corrective justice seems to rest on the following two premises: First,
it views corrective justice's distinctiveness in terms of a specific function rather than a particular structure, its
function being the rectification of violations of entitlements caused by persons in their interactions with each other;
and second, it takes the entitlements which corrective justice protects as given prior to and independent from
corrective justice. Since this view also commonly supposes that it is for distributive justice to determine
entitlements, it may be put this way: Entitlements are established in accordance with distributive justice; corrective
justice serves to ensure that these entitlements are respected by persons in their voluntary and involuntary
interactions with others. The difference between distributive and corrective justice consists then in their having these
distinctive functions. The crucial presupposition here is that there is no conception of entitlement that is specific to
corrective justice as such; rather, this view deems corrective and distributive justice to share the same fundamental
notion of entitlement and it holds that this notion is grounded in distributive justice.

On the current view, corrective justice entails a certain conception of equality, namely, formal equality of
treatment. Corrective justice treats persons as equals by disregarding all differences between interacting parties save
this, that an entitlement belongs to one of them and its violation has been caused by the other; and it requires the
correction of the violation (through compensation for the loss caused, for example), irrespective of the particularities
of the persons involved. But this conception of corrective justice supposes that the basis of entitlement is in
distributive justice and, therefore, that any given entitlement must ultimately refer to a criterion of distribution that
singles out some feature or set of features in terms of which persons can be different or unequal. Accordingly, this
view does not conceive equality in corrective justice as being, all the way down, in complete abstraction from all
differences that may be significant from a distributive standpoint. Corrective justice's indifference to the interacting
parties' particularities is merely a surface feature. It presupposes that certain differences have already been made
relevant by the underlying distributive considerations.

With these preliminary remarks in mind, we ask: On this current view, does corrective justice constitute a form
of justice that is genuinely distinct from distributive justice? Since distributive justice is postulated as the ground of
the entitlements which corrective justice is supposed to preserve, what is to preclude the injuring party from
claiming that the infringement should be viewed simply as a redistribution of holdings in accordance with the same
or a competing criterion of distribution? If the injuring party can coherently frame the dispute in this way, the
correction of the infringement *531 should also properly be characterized as an act of distributive justice, seeing that
it can be viewed as a decision made between two competing distributive claims. In short, once the initial entitlement
is grounded in distributive justice, there is no reason why the violation of the entitlement as well as its correction
should not be construed from the same distributive standpoint. It follows that there is no need to introduce, and
indeed no basis for referring to, a second, genuinely distinct form of justice such as corrective justice: the function
which the current view ascribes to the latter as its essential defining feature can be fully accounted for as an aspect
of distributive justice. The distinctiveness of corrective justice is not made out. By contrast, the Aristotelian
approach, we shall see, is not vulnerable to this difficulty. It postulates notions of entitlement and of equality that
abstract completely from the very considerations that can be relevant from the standpoint of any given criterion of
distribution. The ideas of entitlement and of equality are therefore purely non-distributive in conception. And there
is nothing in them that provides an opening for the injuring party to frame the violation in terms of a competing
distributive claim.

Because this difficulty threatens to undermine the distinctiveness of corrective justice, the current conception
must suppose, then, that the injured party's holding is a valid entitlement independent of its justification in
distributive terms. But how can it do so, when it holds that the sole ground of entitlement is in distributive justice?
The answer, it would seem, has to be of the following kind: Corrective justice must presume that the injured party's
initial holding was conferred as part of a valid and conclusively authoritative distribution, whether or not in fact the
holding resulted from the correct and consistent application of a criterion of distribution and whether or not the
criterion was adequate from a moral point of view. At the limit, it must be irrelevant to corrective justice that the
injured party's holding was in fact conferred as part of an actual distribution. These considerations would be matters
for distributive justice and not corrective justice to evaluate and determine. In other words, corrective justice must
treat the injured party's holding as presumptively just. Only on the basis of this presumption can corrective justice
bar the injuring party from framing the violation in terms of a competing distributive claim. [FN26]

To this extent at least, the current view can distinguish corrective from distributive justice. However, the
difficulty with this move is that it preserves the distinctiveness of corrective justice at the cost of its being a form of
justice. Why should the presumption of well-foundedness be applied to the injured party's holding rather than to the
new arrangement resulting from the injured party's action? Given that the presumption privileges the injured party's
holding whether or not it has in fact resulted from any distribution at all, this conferral of validity on it rather than on
the new arrangement seems to be arbitrary from a distributive standpoint. Nor can it be justified by invoking an
independent conception of entitlement *532 that is proper to corrective justice, for this is ruled out on the current
view. The difficulty with this current view may be summed up this way: corrective justice must be able to take the
injured party's holding at the start of interaction as the sole valid standard against which to ascertain the justice of
the interaction; yet, without its own distinct and adequate conception of entitlement, there is no basis for its doing
so. Corrective justice does not provide the needed justificatory structure. [FN27]

This conception of corrective justice leads then to an impasse. To avoid it and at the same time to preserve the
distinctiveness of corrective justice, corrective justice must be equated with a specific structure of entitlement and
equality that is not reducible to the structure of distributive justice, rather than with the function of correction as
such. Or put differently, corrective justice must consist in a specific mode of correcting violations of entitlements
that is wholly rooted in a distinctive yet self-sufficient nondistributive justificatory structure. On this view,
corrective justice would be a form of "correction" that is characterized by a set of definite featues and requirements,
for example, a notion of entitlement, of equality, of wrong, and of the kind and measure of correction, each of which
is specified so that it is inherently fitted to belong to a thoroughly non-distributive whole. There can be no such thing
as correction-in-the-air. For its part, distributive justice could also be said to postulate a mode of correction of its
own in that it requires interactions to be ordered and rectified in keeping with the principle that persons should
receive what is their due according to the distributive criterion. [FN28] Correction takes its "corrective" or
"distributive" character from the specific nature of the notions of entitlement and equality. [FN29]

I conclude then that this current view does not show corrective justice to be a form of justice that is genuinely
distinct from distributive justice. But the primary goal of this Essay is to see whether it can be such. I turn therefore
to the very different Aristotelian conception which does not seem to be subject to the same difficulties.

*533 B. The Difference Between Justice and Other Virtues

For Aristotle, justice, in contrast to the other virtues, has regard only to external relations among persons. Here,
the normative is analysed under and embodied in the form of relation to another. [FN30] This is so in two respects.
First, individuals are represented exclusively under the aspect of being purely "another" for each other. The mode of
relationship that justice postulates is not one of solidarity. In contrast to friendship, the good or interests of another
need not be here an end for oneself. [FN31] Instead, justice views individuals as mutually separate selves who can
have their own interests which they may pursue and promote. Since individuals need not identify with each other,
they count as "others" in their mutual relations. Second, justice abstracts from all normative considerations which
have to do merely with an individual's relation to him or herself and which thus are the concern of the other virtues,
those that order rectitude of character. Positively stated, and in keeping with its standpoint of other-directedness,
justice stipulates requirements with respect to actions and things under one aspect alone, namely, that one person can
be externally related to another through them. Thus, the prescriptions of justice do not have to do with inner
disposition or intention as such, since these, taken in themselves, are considerations that pertain to self-relation and
not to relation to another. Nor does justice concern itself with a person's interests, wants, purposes, and so forth,
except insofar as these are expressed in, or can be affected by, external operations between persons, to use Aquinas's
phrase. The fundamental unit of analysis here is relation to another, where the relation is viewed as exclusively
external or interactional in character and persons are represented as mutually separate in the sense just discussed.

This does not mean that justice is to be equated with the ensemble of factors that must be presupposed if human
interaction is to be possible. Certainly, there cannot be interaction unless there are agents who have wants and
interests and who are so constituted and situated that, in seeking to satisfy and to promote their interests, they can
externally impinge upon each other. But while justice may presuppose the existence of such an ensemble, it is not,
strictly speaking, identical with it. Rather, it consists in whatever makes this ensemble intelligible as interaction; in
other words, those things through which persons can affect and be affected by each other as externally related
agents. According to Aristotle, it is above all a person's external acts (that is, the aspect of action that has to do with
the direct or indirect impingement of one person on another) and holdings (that is, those things like honour, money,
bodily integrity, [FN32] and so forth, through which *534 persons are externally related) that qualify as the special
subject matter of justice. [FN33] They mark off the domain of what, in the Aristotelian tradition, is referred to as
"particular" justice. [FN34] External acts and holdings are thus the basic elements that are ordered or directed in
particular justice. The different ways in which these elements can be related constitute just so many different modes
of ordering. As we shall see, Aristotle holds that there are two such modes, namely, distributions and transactions.
The Aristotelian conception views these modes of ordering as ways of being other-related that are normatively
significant and not empirical in character. It understands them as embodying justificatory structures that specifically
pertain to interaction between mutually external agents. And, as I shall shortly explain, the justificatory structures
proper to distributions and transactions are distributive and corrective justice respectively.

Being a virtue, justice must, according to Aristotle, entail a mean. However, in contrast to the means of the
other virtues - which involve a comparison only within the virtuous individual himself or herself - the mean of
particular justice articulates a standard that is proper to an external relation between persons. It therefore applies to
persons' external actions and holdings, inasmuch as it is through these that they can affect and be affected by each
other in ways that are strictly interactional. Consistent with the other-directed character of justice, the mean here is
framed in terms of equality: for, as Aquinas notes, equality "denotes essentially relation to another ... a thing is
equal, not to itself, but to another." [FN35] Justice involves, then, at least four terms, namely, two holdings and two
persons, and it requires that persons interact in such a way that each has what is his or her "due" according to
equality with respect to holdings. [FN36] Note that whether a *535 person has rendered or received what is due in
terms of holdings can be determined without reference to the ends he or she may have, and thus independently of
such considerations as intention or character which are the defining concern of the other virtues. [FN37]

On the Aristotelian view, persons have "their own" when equality in holdings is respected, because "one's own"
is nothing other than one's due according to equality. [FN38] Entitlement is, in this way, an entailment of equality.
Moreover, Aristotle holds that the mean of justice consists in two distinct and mutually irreducible forms of equality
or fairness [FN39] with respect to holdings, which he calls geometric and arithmetic proportion. It follows that on
this conception, the idea of entitlement in justice is not univocal. On the contrary, it is differentiated in accordance
with these two forms of equality. There are thus two distinct modes of entitlement, one that is structured in terms of
geometric proportion, the other in accordance with arithmetic proportion. And these modes of entitlement
characterize in turn two forms of justice, namely, distributive and corrective justice respectively. The Aristotelian
thesis, as I have called it, postulates two distinct forms of justice which specify two different conceptions of
entitlement. I will now develop this contrast more fully, taking up briefly distributive justice and then at greater
length, corrective justice.

C. The Difference between Distributive and Corrective Justice

1. Distributive Justice
 In distributive justice, things are allocated to persons in accordance with a criterion of distribution. The criterion
will be chosen in the light of, and will be applied to promote, the purpose that a given distribution is intended to
realize. Further, a criterion refers to a feature or set of features which individuals may embody in different degrees
and which is not itself something that is distributed but rather is the basis of distribution. Now a feature may be an
internal quality of capacity, condition, character or achievement, or an external quality of circumstance, whether
natural or social. It may be limited in nature and significance; or it may be inclusive and fundamental, for example
when it consists in basic features and powers that define a normative conception of the person. Viewed in terms of
the particular features made relevant by the purpose, individuals can be unequal. They are treated equally, however,
if the allocation of things to each is made, first, in accordance with the same relevant criterion of distribution and
nothing else, and, second, to the extent of an individual's *536 fulfilment of the criterion in keeping with the
distribution's purpose. Each person's share will then be according to the extent of his or her qualification under the
criterion. If shares are different, this will reflect differences among persons that are relevant in light of the criterion.
Equality consists here in there being a proportion-which Aristotle calls "geometric"-between person and thing that is
identical for everyone in a given distribution. [FN40]

When persons receive what they should according to the purpose and the criterion of a given distribution, they
are said to have "their due" and therefore, we have seen, "their own." Like the form of geometrical proportion, the
conception of one's own in distributive justice must be characterized in a way that is specific to it and different from
the corresponding notion in corrective justice, at least if distributive justice is to be categorially distinct. Now
distributive and corrective justice are similar in this respect: each is a structure of justification with respect to the
propriety of interaction as this bears upon individual holdings. Both presuppose, then, a conception of private
individual ownership. For instance, a given distribution may confer benefits on persons who are entitled to hold and
to enjoy them in their individual capacities, to view them as their own to the exclusion of others. In this sense,
distributive justice, like corrective justice, may be thought of as being directed toward the private individual: the
latter is its ultimate terminus ad quem. [FN41] However, what is distinctive about distributive justice is that the
normative validity, indeed the conceptualization, of individual holdings is mediated by the idea of a distribution. So
we must determine how this central feature informs the characterization of one's own.

Briefly stated, the conception of one's own in distributive justice is specified in the following way. While
persons have holdings that are individual and exclusive in character, their entitlement to them belongs to distributive
justice only insofar as they receive these holdings in virtue of being members of a whole and in relation to their
standing within that whole. [FN42] In distributive justice, individuals are viewed as sharing in social community
in some specified sense. Accordingly, Aquinas characterizes the of distributive justice as being from a whole to its
parts, in contrast with corrective justice, which, he says, directs the order of one part to another. [FN43]

More specifically, distributive justice views persons only as members of a whole and as collectively related to a
subject matter of distribution which it treats as a common asset (or burden) to be shared by them. I have already
referred to the fact that in distributive justice a criterion of distribution singles out relevant features which
characterize individuals in different *537 degrees. This fact alone does not establish mutual relation among them.
Rather it is through their having a common claim (or liability) vis-à-vis a given subject matter that individuals are
related as members of a distribution. Distributive justice considers persons solely in this light.

This ordering of whole to parts specifies the kinds of acts that, normatively, are relevant from the standpoint of
distributive justice. There are two categories of acts. First, there are acts that confer benefits or impose burdens on
members of a distribution. This is, as it were, the active side. When individuals act in this way, they are necessarily
viewed as representing a whole. Second, there are acts of accepting benefits or burdens. This is the passive side.
When individuals do so, they are regarded as being parts of a whole and as having a determinate standing within that
whole. For an issue of distributive justice to arise, there must be interaction between persons, and more specifically
interaction in which one is active and another is passive in the ways just specified. Human interaction is brought
under distributive justice to the extent that it can reasonably be analysed in terms of these two categories of acts. A
distribution is nothing other than interaction viewed in this way. And such interaction is regulated in accordance
with geometric proportion.

This analysis is normative throughout. The characterization of persons and their acts, the idea of a distribution,
and the notion of entitlement are interconnected aspects of a single normative conception. When interaction is
construed in terms of a distribution, justice requires that it respect the form of equality that is immanent in it. Hence
Aristotle's statement that distributive justice is justice in distributions.

Note that this analysis of distributive justice concerns only its structure or form. It does not decide in virtue of
what individuals should be viewed as representing or belonging to a whole, and so does not specify what in
particular shall constitute the relevant whole. Nor does it determine whether or how a given subject matter should be
construed as in common, and therefore as something to be distributed. Thus, both a conception of distributive
justice, such as Rawls's, that regards the benefits and burdens of distribution as rooted in and resulting from social
cooperation as well as one that identifies the whole in terms of different considerations, such as an allocative
conception of justice, fully exemplify this structure of entitlement. [FN44] They both come under the Aristotelian
form of distributive justice.

Before leaving this topic, I wish to consider briefly why justice in distributions must entail an equality in
proportions. We have seen that the mean of particular justice-equality-involves at least four times, namely, two
persons and two things. As part of a distribution, individuals figure as persons who may possibly embody in varying
degrees the features made relevant by the distribution's purpose. Suppose now that the extent to which any
individual embodies the relevant feature can be represented in *538 quantitative terms; for example, as so many
units of such and such a feature. This sum must in turn be related to another sum, namely, the quantity or "share" of
things to be allocated to that individual in accordance with the criterion. Because these sums are qualitatively
distinct, they are mutually irreducible. The attribution of things to persons that justice entails must therefore be
expressed here in terms of a ratio between these sums. And since justice also postulates relationship between
persons, there must be at least two distinct persons and two distinct shares; in short, at least two distinct ratios each
consisting of two mutually irreducible quantities. Thus, where the attribution of things to persons is mediated by a
criterion, the comparison with respect to holdings that is entailed by justice can only be a comparison between
proportions, and the equality that is required by justice can only be an equality of proportions.

2. Corrective Justice
In contrast to distributive justice, corrective justice conceives interaction in terms of its being a voluntary or an
involuntary transaction and it requires that the transaction respect the form of equality that Aristotle calls "arithmetic
proportion."
[I]t does not matter if a decent person has taken from a base person, or a base person from a decent person
.... Rather, the law looks only at differences in the harm, and treats the people involved as equals, when one
does injustice while the other suffers it, and one has done the harm while the other has suffered it. [FN45]

Negatively, corrective justice completely disregards the "worthiness" of persons; that is, it does not include, as
one of its necessary elements, a criterion of distribution in the light of which a determination of worth can be made.
In corrective justice, interaction is ordered in accordance with a normative standpoint entailing a form of equality
that does not refer to such a criterion. Whereas distributive justice takes into account those-but only those-
determinate features selected by a particular criterion of distribution, corrective justice completely abstracts from all
such features. Individuals are viewed as abstractly identical and it is just in this that their equality consists. In this
respect, then, there is a categorial difference between corrective and distributive justice. [FN46]

*539 Now because a criterion of distribution is not an element of corrective justice and since particular features
of persons, which are normatively relevant in distributive justice, are here disregarded, individuals are not
represented in corrective justice as embodying these features in different degrees. In other words, individuals are not
assigned a distinct sum that represents the degree to which such features may be present in them. Accordingly,
although corrective justice, like distributive justice, involves at least four terms (two persons and two things),
"person" does not function in corrective justice as a distinct term representing a certain quantity that must then be
related to a second term, namely things. In corrective justice, "person" is, as it were, mathematically empty. It is
only the second term, things, that can give rise to quantitative comparisons. In corrective justice, persons and things
are thus related through a proportion between thing and thing and not through a proportion between things and
persons. Individuals are viewed merely as abstractly equal interacting agents and their equality is expressed solely in
and through a quantitative comparison between things. It is in this way that we should understand Aquina's striking
characterization of corrective justice as involving an equality between thing and thing.
 More specifically, corrective justice compares an individual's holdings at the start and at the end of interaction
with another. Here, interaction is analysed without reference to a common property or claim in the sense discussed
above, or to any criterion of distribution. This comparison is called "arithmetic" because it entails a simple
comparison between what initially belongs to a person and what belongs to him or her at the finish of interaction
with another. If the two quantities are the same, a person is said to have his or her due according to arithmetic
equality. [FN47] Notice that here, in corrective justice, persons can be externally related through the holdings of just
one of them; it is enough if only one of the interacting parties has something that can be affected by the other. The
comparison between things that particular justice enjoins figures specifically in corrective justice as a comparison
between two amounts of a single party's holdings. This contrasts with distributive justice, where an equality of ratios
must refer to at least two distinct shares owing to two different individuals.

Arithmetic equality is operative in transactions. Like "distribution," "transaction" denotes a normative and not
an empirical mode of interaction. Thus, interaction is transactional insofar as it is viewed, without recourse to a
criterion of distribution, as an external relation between two persons which both presupposes and can externally
affect the holdings of one of them. There are two different kinds of transaction that fall under corrective justice.
[FN48] A transaction is voluntary where one person willingly transfers his or her holding to another who thereby
acquires it in a limited or unlimited way; corrective justice requires that this transfer respect *540 arithmetic
equality. [FN49] It is involuntary where a person, without consenting, is in some way deprived of his or her holding
by another; corrective justice stipulates that this deprivation be consistent with arithmetic equality. [FN50] In both
kinds of transaction, a person's holding is presupposed at the start and is potentially affected in and through
interaction with another. The difference between them is that in a voluntary transaction one or both parties acquire
something whereas in an involuntary transaction they do not. [FN51] The two types of transaction specify the kinds
of external action that are ordered by corrective justice. Through these actions, persons are mutually related with
respect to their holdings in a manner that is intelligible in terms of arithmetic equality. Corrective justice consists
just in these two elements of actions and holdings being structured as aspects of a transaction. [FN52]

Now if, as Aristotle seems to hold, corrective justice requires that a person's holdings be preserved in voluntary
and involuntary transactions with others, it can do so only if the holding constitutes an entitlement that embodies a
nondistributive conception of equality in which the transacting parties share identically. Although a transaction may
involve the holding of only one of the parties, the protected holding must constitute an entitlement that expresses the
equality of both. The requirement that maintains what a person has at the start of a transaction can exemplify
arithmetic equality if and only if this initial holding represents a suitable baseline of equality against which to
measure the justice of the transaction. [FN53] Put negatively, for *541 a discrepancy between an initial and a
resulting holding to constitute arithmetic inequality, the difference must represent a violation of such an entitlement.
Arithmetic equality thus postulates a notion of entitlement the meaning of which is expressed in and through the
purely quantitative comparison between these holdings. The mean in corrective justice is nothing other than this
initial holding conceived and validated as an entitlement.

*542 But here arises a question of the first importance, one which, we shall see, Aristotle's account does not
fully answer. If corrective justice constitutes a form of justice genuinely different from distributive justice, this is
because, on the Aristotelian view, it has its own distinctive conception of entitlement. And if the initial holding is to
serve as the mean, it must be held in accordance with this conception of entitlement. What can this conception be
and how are we to account for its basis? In the light of the discussion up to this point, we can at least say what it
must not entail: the justificatory structure of the notion of entitlement in corrective justice must not, at any level,
directly refer to a criterion of distribution. The explication of the requirement of arithmetic equality must not be,
even in part, that it is needed to preserve distributive shares. Otherwise, on the Aristotelian interpretation, corrective
justice would not qualify as a distinctive form of justice; it would direct interaction in accordance with normative
features proper to distributions and would therefore be an instance of distributive justice. Moreover, we could not
avoid the impasse that results from the previously discussed contemporary conception of corrective justice.

What more can be said, positively, about the main features and basis of the needed conception of entitlement?
The answer is, at mot, implicit in the Aristotelian treatment of corrective justice. One can infer the following three
features that characterize the conception of entitlement entailed therein. At this point, I simply present them, without
attempting to establish their necessity or their unity.
 First, the entitlement is attributed to persons who are viewed as mutually distinct and external, and it is
conceived throughout in terms of individual ownership. As already noted, the conception of one's own is here
exclusively private or individual in character. The idea of a common asset plays no role. Second, the conception of
entitlement is transactional. It is framed wholly in terms of an external relation between two persons, the normative
significance of which is intelligible without reference to a mediating criterion of distribution. The ordering is
essentially between part and part, in contrast to the ordering from whole to parts in distributive justice. In particular,
corrective justice orders holdings and external actions as follows. One party's initial holding, we have seen, is treated
as the baseline of equality and the question is whether it has been disturbed or injured in some way through
interaction with another. The comparison between holdings, which is the hallmark of particular justice, figures here
as a purely quantitative comparison between what a party has before and after interaction. The other element,
external actions, is specified as those acts that make up a voluntary or an involuntary transaction. The conception of
entitlement thus postulates a specific structure of other-directedness that is distinct from that of distributive justice.
Corrective justice does not view persons as sharing in social community. Third, the conception of entitlement is
negative. Individuals do not have positive obligations to confer ownership upon others or to assist them in their
efforts to acquire it. They are only under a negative duty to refrain from depriving others of what is already theirs.
Although this feature is not explicitly referred to by Aristotle, it is nonetheless reflected in the fact that corrective
justice applies only where a person's external actions can affect something that is already *543 and independently
another's at the start of interaction. [FN54] That individuals only owe each other negative duties implies the further
proposition that their equality as persons is not violated just because they may not have equal holdings or even
because some do not have any holdings at all. This is reflected in the fact that the quantitative comparison stipulated
by corrective justice can be between the holdings of just one of the interacting parties.

Supposing this conception of entitlement, how is a party's initial holding to be validated as an entitlement so
that it can serve as a baseline of equality, without bringing to bear distributive considerations. I have already tried to
show why this question cannot be answered satisfactorily from within the understanding of corrective justice that is
widely held in current legal and political theory. Clearly, something more is needed to provide this validation than a
presumption which simply deems the holding to be an entitlement independent of whether it in fact resulted from a
distribution. For his part, Aristotle does not seem to have addressed the question. To fill this gap, we must see
whether it is possible to suggest a principle that fits with the basic premises of the Aristotelian account of justice
and, in particular, with its conception of entitlement in corrective justice. In this first Part, I present the principle in a
preliminary way. In those that follow, I will try to develop it more fully and show how it can be justified from a
moral point of view.

To begin, a point of clarification. In proposing a principle that can validate the initial holding consistently with
the conception of entitlement outlined above, I cannot assume that this holding itself resulted from a transaction (to
be precise, a voluntary transaction, since one does not acquire something through an involuntary transaction). In
addition to acquisition from others, acquisition independent of others must be possible. Otherwise, an infinite
regress cannot be avoided in trying to explain how initial holdings are acquired. Therefore, for now I will state the
principle in a way that applies directly to the case of acquisition that is independent of others. We will eventually
want to determine whether it covers the other kind of acquisition as well.

The proposed principle is this: A person who, through an external manifestation of will, has brought something
under his or her present and exclusive control prior to others is, relative to those others, entitled to it in corrective
justice. An exhibition of will of this kind would constitute a complete basis of rightful appropriation in corrective
justice. It would also be the exclusive basis. This principle goes beyond the mere presumption of validity discussed
in connection with the current view of corrective justice. Unlike the latter, it provides a definite ground for
distinguishing between holdings so far as the question of an entitlement in corrective justice is concerned.

While my aim in this Part is not to justify this principle, I have proposed it as a way of giving definiteness to the
nondistributive conception of entitlement described above. To what extent is there a fit between the *544 two? First,
by this principle a holding is acquired by someone through an individual act of appropriation (consistent with the
condition of temporal priority), not through a distribution. The only acts postulated are those of private persons and
the only kind of entitlement is exclusive and individual in character. There is here no common asset to be distributed
nor are individuals represented as, in some way, collectively related to the holding. Thus, as between, say, two
parties, the principle supposes that originally the thing is not yet owned by anyone (it constitutes a res nullius rather
than a common asset) and that subsequently it is acquired by an individual by his or her independent act of will.
Prior to an act of will, neither party has any claim whatsoever with respect to the thing. And the principle does not
refer to any determinate features which individuals can possibly share either identically or in different degrees. It
does not invoke a criterion of distribution.

Second, the principle is framed in terms that can relate one person to another: a party's entitlement is not
absolute but rather is determined in a way that is relative to others in virtue of the condition of temporal priority,
which is necessarily relative and comparative; and its requirement that there be an external manifestation of will also
reflects this relational standpoint. Yet, the basis of the entitlement is not necessarily transactional: it does not
presuppose that holdings are acquired through others and with their actual consent. Indeed, for this principle to
apply, it is not even essential to assume that there are two persons. One person, acting alone in the world, can
acquire a holding in accordance with this principle: he or she becomes "first" or "prior to another" only when others
come on the scene. Whether this principle is also suitable for holdings acquired from others must certainly be
explored. I shall do so in Part III, in connection with a discussion of acquisition through contract.

Third and lastly, the principle presupposes that individuals only owe each other negative duties to refrain from
depriving one another of what is already theirs. The only condition that constrains an individual's ability to acquire a
holding through his or her independent act of will is negative: the thing must not be already appropriated by
someone else. Other than for this one condition, individuals are free to appropriate things for themselves irrespective
of the impact that this may have on others. Considerations relating to a person's needs, preferences, interests, aims,
and so forth are a matter of indifference: the only relevant question is whether, relative to others, one has acted first.
This can be legitimate only on the premise that persons are not positively obliged to enable others to acquire
holdings or to confer holdings upon them.

What is more, this principle enables us to see how a holding that may have been acquired under a scheme of
distribution can nonetheless be treated as an entitlement in corrective justice, the justification of which does not
incorporate distributive considerations. Take the most straightforward case: the distribution and actual receipt of a
good in accordance with some criterion of distribution. How is this holding to be represented as an entitlement when
it is being considered from the standpoint of corrective justice? It can constitute an entitlement in corrective justice
if, and only insofar as, it is reasonable to view the beneficiary of the distribution as having appropriated the thing,
that is, as having brought it under his or her *545 exclusive control, prior to others who would challenge the claim.
The receipt of the good (which is ordered in accordance with distributive justice) is construed, then, as an external
manifestation of will that treats the thing as one's own. Further, the fact that in distributive justice the good to be
divided must initially be viewed as in some sense a collective asset to which the members of the distribution are
collectively related is quite consistent with this good being regarded for the purposes of corrective justice as
something that is initially not yet owned by any of the parties in his or her individual capacity. Thus, when an
individual receives something under the distribution, it can reasonably be regarded as an appropriation that satisfies
the condition of temporal priority, at least relative to the other parties to the distribution.

The central point is this. If it is possible to view a holding conferred by a distribution as also an entitlement in
corrective justice, the reason cannot be that it was due under a criterion of distribution or even that it was actually
received in fulfilment of a distribution. Rather, it must be because the person claiming the holding has performed an
action such that, in addition to being the sort of act that pertains to distributive justice, can also be construed as an
individual manifestation of control over the holding prior to others. [FN55] At most, a distribution provides an
occasion on which such prior appropriation can take place; the distributive basis as such does not form any part of
the justification of the corrective justice entitlement. In this way, persons can coherently be precluded from invoking
distributive claims to challenge the validity of an entitlement in corrective justice, even where the holding resulted
from a distribution.

It is not sufficient, however, merely to postulate a notion of entitlement and to suggest a principle for it that
seems to fit its nondistributive conception. Clearly, both must be justified from a suitably defined moral point of
view. This justification must establish the necessity and the unity of the three features of the conception of
entitlement discussed above. In addition, we need to show how the nondistributive notion of entitlement and its
principle express the kind of equality that is proper to corrective justice and how they reflect the distinctive, abstract
conception of the person that is presupposed by corrective justice.
 But this immediately raises two questions that go to the very possibility of a satisfactory justification of
corrective justice on the Aristotelian *546 interpretation. First, from a moral point of view, how can corrective
justice properly disregard persons' differentiating particular attributes and construe individuals who are different and
unequal as abstractly identical and equal? As an empirical matter, individuals are certainly distinguished by their
particular attributes, and, as a normative matter, distributive justice takes just these differences into account.
Inasmuch as particular justice views individuals solely in their external relations with one another and therefore as
interacting agents, the question can be restated this way: In virtue of what features might human agency entail a
normative dimension that is wholly indifferent to individuals' determinate characteristics? [FN56] Furthermore, it is
not enough to frame the conception of the equality of persons in these merely negative terms of indifference to
particularity. We have to show, positively, how this notion of equality and the nondistributive idea of entitlement are
inwardly connected. Consequently, the second question is this: Why is the abstract equality of persons expressed in
and through individuals being respected in accordance with this conception of entitlement and, in particular, as
subjects who can rightfully acquire holdings on the basis of the above-stated principle? In short, we must explain
how abstract equality implies at least a capacity for rights, where rights are framed in terms of the nondistributive
conception of entitlement and its principle.

To my knowledge, neither Aristotle nor Aquinas answers these questions. [FN57] Indeed, it is doubtful
whether they even pose them. Yet they *547 arise necessarily from, and must be addressed from within, their
conception of corrective justice. The full justification of this conception will require, then, that we provide answers
that are consistent with the Aristotelian thesis as I have presented it. This is what I shall try to do, at least in outline,
in Part II.

3. A Concluding Remark on Equivalence in Exchange

To conclude this part, I wish to consider briefly an aspect of Aristotle's treatment of corrective justice that has
often puzzled commentators. As I will explain, it bears importantly on the adequacy of his account. The problem is
this. Aristotle, and later Aquinas, suppose that arithmetic equality entails a requirement of equivalence in exchange.
[FN58] Yet when Aristotle tries to explain equivalence, he does so under the rubric of "reciprocity" rather than
corrective justice. Moreover, the discussion of equivalence ends in what seems to be a theoretical impasse that he is
unable to resolve.

Prima facie, a requirement of equivalence in exchange seems to exemplify the standard of arithmetic equality.
Recall that Aristotle conceives arithmetic equality in terms of a baseline that represents one party's rightful holding
and yet embraces both parties as equals. In an exchange of holdings that are equivalent in value, each party's "own"
is identically and equally maintained in accordance with a single value which, like the line, embraces them both. We
ask: Can a requirement of equivalence in exchange be explicated through corrective justice's specific conception of
equality and entitlement? Aristotle puts the theoretical issue in the following way. On the one hand, exchange
presupposes qualitatively different-and, in this sense, unequal-persons and things: "For it is not two doctors that
associate for exchange, but a doctor and a farmer, or in general people who are different and unequal ...." [FN59]
Yet, on the other hand, exchange cannot take place unless these different things are equated, and this presupposes
that they are in some way comparable: "exchange cannot take place without equality and equality not without
commensurability." [FN60] Arithmetic equality is possible if and only if there is a dimension in which qualitatively
different goods share, so that they can be represented in the purely quantitative terms of equivalence. Take
Aristotle's own example: a given proportion of beds is exchanged for another proportion of houses. The proportions
in which they are exchangeable can always be represented *548 by the following equation: X beds = Y houses. This
equation presupposes that in each of the qualitatively different proportions there exists in equal quantities something
common to both. Aristotle sets himself the task of identifying what this something common is.

Aristotle's analysis proceeds in three steps. [FN61] First, he suggests that commensurability can be explained by
identifying a common measure of goods, namely, money: "Money, then, acting as a measures, makes goods
commensurate and equates them." [FN62] But this is obviously inadequate as a solution. Unless there is a common
dimension shared by goods so that they are in truth commensurable, there can be no common measure which
represents them in purely quantitative terms. This inadequacy leads Aristotle, in a second step, to identify human
need as the common dimension which makes the commensurability of different goods possible: "That need holds
every thing together in a single unit is shown by the fact that when men do not need one another, that is, when
neither needs the other or one does not need the other, they do not exchange .... This equation therefore must be
established." [FN63] Money now functions as the conventional representative of need. However, this suggestion
must also be unsatisfactory. In connection with voluntary transactions, "need" figures necessarily as "different
needs"; for it is only in virtue of their having different needs and expectations of different satisfactions that two
persons decide to exchange. Aristotle is attempting to explicate the form of equality immanent in exchange in terms
of the different needs that propel individuals to enter into exchanges. But the different cannot, taken by itself,
account for the equal. In a third and final step, Aristotle seems to acknowledge that neither money nor need can
explain commensurability: "Now in truth it is impossible that things differing so much should become
commensurate, but with reference to need they may become so sufficiently for practical purposes ." [FN64] In short,
Aristotle is saying, on the one hand, that money cannot make unequal and, on the other hand, that the equalization of
goods by reference to need can, in Marx's words, "only be something foreign to their real nature, consequently only
'a makeshift for practical purposes."' [FN65] In short, Aristotle is acknowledging, it seems, that he cannot explain
equivalence as an aspect of corrective justice. And this may be the reason why the discussion of equivalence is not
integrated with the account of corrective justice but rather is pursued separately under the rubric of reciprocity.
[FN66]

The question of the basis of equivalence in exchange is fundamental to the vindication of Aristotle's thesis
concerning the distinctiveness of corrective *549 justice. Just as the conception of the person in corrective justice is
indifferent to the particularities of the transacting individuals, so equivalence in exchange is indifferent to the
particularities of the things transacted. With respect to both persons and things, a single, crucial question emerges
from but remains unanswered by the Aristotelian account of justice in transactions: how can interaction between
concretely different persons and things be ordered in accordance with a moral standpoint that postulates both
persons and things as abstractly equal and that grounds a nondistributive conception of entitlement of the sort
described above? The main task of Part II is to address this question in a reasonably systematic way. [FN67]

II. THE BASIS OF CORRECTIVE JUSTICE

In this Part, my aim is to develop a reasonably systematic justification of the nondistributive conception of
entitlement presented in Part I. This is, of necessity, the most abstract section of the Essay. In addition, precision
requires that I introduce here certain terms which, while they are rooted in the philosophical tradition, may not be
used at all or in the same sense by current political and legal theory. The following brief remarks are intended to fix
the meanings of certain terms and to indicate the overall direction of the argument.

I begin Part II by stating three main features which, on reflection, most would consider to be constitutive of the
moral point of view. These are, I believe, weak and widely accepted presuppositions that allow for a wide range of
different and even conflicting moral conceptions. I then distinguish one such conception which, following Rawls, I
call "constructivist." As I explain at greater length, the main idea of a constructivist approach is that normative
categories are themselves worked out from a standpoint that represents us as fully accountable choosing agents. The
moral principles that govern conduct are to express a certain conception of free agency. The normative is not given
prior to or independent from this conception. As I have already indicated, my aim in this Essay is not to show that a
constructivist view is to be preferred over alternative conceptions but simply to present and explain it in its own
terms. If on reflection constructivism seems plausible or even compelling, this will, I think, be because it rests on
premises that are in fact weak yet truly basic to our moral understanding. Unless we accept premises of this sort, we
cannot preserve the fact that we view ourselves as accountable and judge ourselves in that light.

The features of a constructivist approach to morals may be stated in general terms to contrast it with other moral
conceptions, and I do this briefly in the First Section of this Part. However, constructivism does not directly apply in
this form to the different matters of moral interest. The peculiar characteristic of constructivism in morals is that it
requires genuinely distinct formulations for what it deems to be different kinds of *550 subject matter. On a
constructivist interpretation, the moral point of view must be duly specified in relation to a particular part of the
moral domain. Thus a constructivist account of justice has different features than a constructivist treatment of ethics.
And I shall outline a constructivist account of corrective justice that turns out to rest on first premises that are quite
specific and, in particular, are distinct from those underlying a constructivist theory of distributive justice, such as
Rawls's.
 Part II is thus principally devoted to making clear the special features of a constructivist justification of the
nondistributive notion of entitlement presented in Part I. The two main parts in this justification are a specific
conception of the person and a corresponding notion of obligation and entitlement.

The conception of the person which, following Hegel, I call "personality," [FN68] represents a specific way of
understanding ourselves as fully accountable agents, in keeping with a constructivist interpretation of the moral
point of view. As I shall explain, it singles out only one characteristic ability from all of our features that may be
relevant from a moral viewpoint, even on a constructivist account. This ability is our moral capacity to act in
accordance with a standpoint that is not inevitably defined in terms of our particularities: our particular make-up,
inclinations, purposes, loyalties, circumstances, and so forth. To view ourselves as independent in this way is to
ascribe to ourselves personality. This bare and, as I argue, minimal conception of the person is different from, say,
the more complex notion of the person that underlies Rawls's constructivist account of distributive justice. One of
the purposes of this Essay is to bring out this contrast.

Constructivism views the second part, the notion of obligation and entitlement, as resting on the conception of
the person and as expressing it in the here and now. More precisely, it holds that a specific conception of the person
is the basis of a corresponding specific notion of obligation and entitlement. The idea of obligation that expresses
personality I call, again following Hegel, "abstract right." [FN69] The task here is to show what features abstract
right must have if it is to reflect adequately its basis in personality. I conclude the discussion of abstract right, and
with it Part II, by noting that abstract right is nondistributive in the same way as the conception of entitlement
presented in Part I. Moreover, it is recognizably juridical, not political or ethical, in character. This elucidation of a
purely nondistributive juridical conception of obligation sets the stage for the construction in Part III of first
principles that are suitable for corrective justice and for the kind of pure entitlement theory discussed in the
Introduction.

A. A Constructivist Interpretation of the Moral Point of View

On the Aristotelian conception, corrective justice consists in a mode of ordering that determines the propriety of
interaction in accordance with a specific normative conception of the person and a definite normative *551
requirement of arithmetic equality. In seeking a moral basis for this conception, we suppose for now that we must
invoke one or more of the basic notions of ethics, such as the right and the good. [FN70] The elucidation of
corrective justice in terms of these concepts presupposes, however, that we are already occupying a standpoint
which, taken by itself, can be authenticated as unqualifiedly normative. Implicit in our normative judgments is the
thought of this unified standpoint, without which we would not be able to conceive of them as possessing objectivity
or as being regulative-in short, as exemplifying the features that are implied in the very idea of judgment. At a more
fundamental level, then, the understanding of corrective justice must postulate what we may call "the standpoint of
the normative."

How should this standpoint be characterized? If the "ought" is to constitute a genuine and categorially distinct
point of view, it must, I think, fulfil at least the following three formal conditions. [FN71] First, the standpoint of the
normative addresses a self that has a capacity for agency, that is, for self-conscious and responsible choice, and that
as such a self, is necessarily subject to this standpoint. Second, it must be distinctive and self-sufficient: it must be
defined and explicated in its own terms and not through something else. So, most importantly, it must not be
elucidated or accounted for by deriving it from the representation of things as merely causally determined natural
happenings. [FN72] Third, it must entail a conception of objectivity that is proper to its distinctive, self-sufficient
character: the normative must articulate a standard of validity that identifies and excludes the morally arbitrary. In
itself, the standpoint of the normative must express a conception of objectivity that is the unique standpoint from
which choosing subjects are always to judge themselves and to be judged in their capacity as responsible agents. In
short, there must be no locus standi within the elucidation of responsible agency that entitles the subject to choose
independently from or to limit that conception of objectivity.

*552 Now prima facie, it seems possible to satisfy these three conditions in two fundamentally different ways,
yielding two different conceptions of the standpoint of the normative. [FN73] The latter may be conceived either as
a moral order that is, even in part, given prior to and independently from the free activity of the choosing self, or,
alternatively, as one that is wholly immanent in and expressive of its agency. Following Rawls, I shall call the
second conception "constructivist." [FN74]
 In a constructivist conception, the content of the normative is worked out or "constructed" from a standpoint
that is immanent in and constitutive of responsible agency: normative conceptions, such as the right or the good, are
not even partly viewed as objects that are fixed prior and given to the choosing self, independent of its activity;
rather, they are conceived exclusively as entailmates of that activity, as posited by and expressive of the choosing
self in its capacity for responsible agency. In this sense, constructivism holds that the contents of our normative
conceptions are what we would choose from a standpoint that represents us as responsible agents.

In Parts II and III, I wish to see whether the moral basis of corrective justice can be accounted for on a
constructivist interpretation of the normative. Recall that our task is to ground a conception of justice that articulates
distinctive notions of person and entitlement for a specific social relation, namely, transactions (in contrast to
distributions). In addition, we have seen that corrective justice views individuals solely as mutually external and
interacting agents. If we are to explain the basis of corrective justice in a way that vindicates its specific character
from a systematic standpoint, it will therefore be necessary to invoke an understanding of normativity that, at the
least, can sustain categorially distinct notions of the person and entitlement that are framed for different kinds of
social relations, all within a unified conception that is thoroughly rooted in an idea of responsible agency. In this
way, we may hope to explicate corrective justice and at the same time connect it up with an account of distributive
justice on a common basis.

The constructivist approach that I shall outline seems well suited to this task. For to begin, it conceives of
normativity as fully immanent in agency: the normative is elaborated wholly in terms of an idea of responsible *553
agency. Furthermore, constructivism views the normative idea of the person, with its defining moral powers, as
something complex. But it does not present the conception of the person as complete ab initio. On the contrary, it
holds that this conception must be elucidated through an ordered sequence in which the different moral powers that
characterize it are, step by step, specified completely and integrated adequately. The stages of this elaboration
constitute so many distinct and relatively autonomous, though interconnected, forms of a normative conception of
the person as responsible agent. Finally, constructivism attempts to show how these forms of the person are the basis
of different structures of obligation and entitlement. The latter, in turn, single out the particular kinds of social
relations for which appropriate principles are to be constructed. These relations range from the simple transaction
between two persons to complex modes of cooperation like the family, civil society, and the state. The constructivist
account consists, then, in a sequence of ordered pairs, each pair being a specification of the conception of the person
as free and accountable matched with a distinct notion of obligation that is based thereon.

Constructivism, I have said, postulates a certain conception of responsible agency as the standpoint of the
normative. In what, then, does this conception of responsible agency consist, and how does it satisfy the formal
conditions of the standpoint of the normative, while at the same time embodying the constructivist feature of
immanence? Before addressing these questions, I should make clear that in this Section (A) I consider
constructivism exclusively in general terms, so as to bring out its characteristic features as a moral theory. In
particular, the discussion of the two parts of a constructivist account, namely, the conception of the person and the
notion of obligation and entitlement resting thereon, is undertaken solely from this general standpoint. It is not until
the next Section (B) that I analyse a specific form of the constructivist conception of the person ("personality") and a
particular notion of obligation that is based on it ("abstract right"). One must keep in mind that, on a constructivist
approach, it is only such specific forms of the conceptions of the person and of obligation that give rise to first
principles for the different domains of the moral. It is through these specific forms that a constructivist justification
applies. This point of clarification having been made, let me now explain in general terms how constructivism
construes the idea of responsible agency.

Certainly, responsible agency is usually thought of as entailing a capacity for self-conscious purposive activity.
Taking this much for granted, how might it be further characterized so as to satisfy the fundamental idea of
constructivism, namely, that normative categories are to be conceived of as expressing the activity of choosing self
and not at all as given prior to and independent from it? We must begin with a conception of the choosing self which
in no way presupposes a prior or given object of choice. If the conception of the choosing self were itself to be
defined, even partly, in terms that referred to such a prior object, the object could not be thought of as something
that expresses the self's activity. The object would not be constructed. Consequently, constructivism postulates a
conception of agency in which the subject of action is viewed as wholly undetermined by any object of choice. It is
the self that determines the object in accordance *554 with its own inner premises. The self, as it were, gives itself
its object; in this way it is free. Constructivism postulates a self-conscious subject whose self-consciousness consists
in its viewing itself as wholly undetermined by everything given prior to or independent from its activity, a subject
that therefore has itself qua free for its object. And it is just in virtue of the capacity to think of itself as free that the
subject is self-determining.

The fact that the subject is free just insofar as it can think of itself as such is itself something which the subject
knows and which it seeks to make explicit. This is reflected in the fact that it can make the realization of this
conception of itself its essential aim and purpose. In constructivism, the subject is a thinking self that expresses its
conception of itself in the element of purposive activity. [FN75] Whereas thinking as mere cognition has an object
that, in relation to itself, must at least in part be taken as prior and independent, thinking here is practical in that it
gives itself an object that is wholly constituted through its own activity-an object that, far from being independent of
it, is the subject's very same conception of itself as free, only in the form of realized existence. [FN76] Thinking that
produces its object in this way is will and because what it produces is just itself, it is free will. Free will is itself a
form of thought, not merely the result of thought. [FN77]

As I have already indicated, the constructivist view of agency-the idea of free will-has two essential parts: First,
a conception of the person and second, a structure of obligation (and entitlement) that is based thereon.

The conception of the person is not itself be constructed. Rather, it is something that can be elicited from the
experience of ourselves as responsible agents capable of moral judgment, and it serves as the basis of construction,
as that from which construction begins. [FN78] It is essential that the conception of the person be articulated in a
way that is adequate to the idea of unqualified self-determination. The conception is not psychological or
sociological but normative. That is why its defining powers and capacities are referred to as moral.

The constructivist conception of the person must not be thought of as an abstraction that, somehow, has to be
brought down into and embodied in the world. On the contrary, it is a certain standpoint within the world through
which persons capable of moral judgment view themselves as accountable agents in their entanglements with the
here and now. The *555 conception of the person does not spurn the finite or the particular but incorporates it in a
way that expresses the fact of the subject's freedom. To see this, it may be helpful to analyse the conception of the
person in the following three steps. [FN79]

If persons are to have a capacity for unconditionally free choice, it must be possible for their choice of objects
to be justified in a way that refers only to their activity of choosing. The ground of justification, I have said, must not
be framed in terms of what is given independent of or prior to this activity. Accordingly, constructivism views
subjects as having a capacity to distinguish themselves from and to stand above any aspect of experience which, if
made any part of the basis of justification, would signify that, for these purposes, they must take something as given
to rather than as proceeding from their activity. For agents to be genuinely free, and therefore accountable, they must
not be limited to this form of justification, whether its content refers to something that is internal to them, such as
their inclinations, needs, or aims, or something that is external, such as their circumstances or relations with others.
Indeed, unconditional freedom implies that, when morally required, a subject can sacrifice its own life and thus can
even abstract from the desire to preserve itself. The free subject is not tied to anything save the pure activity of
choosing, and what this entails. A possibility of unlimited abstraction must be presupposed, then, if a subject is to
have an object that expresses its capacity for unconditioned free choice. Now what remains from this standpoint of
abstraction is just a consciousness of self that is necessarily without content or limitation, a conception of self that
entails, therefore, unqualified universality. This standpoint constitutes negative freedom: in virtue of it, subjects
view themselves as independent of everything that is extrinsic to their activity of choosing and are thus fitted to be
self-determining. Negative freedom is an essential condition of accountability, the first step in the analysis of the
constructivist conception of the person. [FN80]

I should emphasize that the independence spoken of here has been stated in general terms. Constructivism
holds, however, that each distinctive form of the conception of the person with its corresponding conception of
obligation and entitlement has its specific way of expressing the will's independence from the given. For example, in
the following section, I suggest that the conception of the person which I refer to as "personality" articulates the
will's independence from the given as independence from and indifference to particularity as such.
 *556 It should be noted, in addition, that this general claim concerning the will's independence does not imply
that the self is to be understood as "unencumbered," as somehow complete prior to and independent from, say,
ethical ties of family or community. Nor is it assumed that bonds and loyalties of this kind are only, or even mainly,
the result of deliberate decision and explicit acts of free acceptance. Rather, what is required to satisfy the demands
of negative freedom is merely that, upon reflection, it be possible to authenticate such ethical orders and bonds as
expressing our capacity for unconditional free agency; in justifying them, we do not regard them as simply given or
extrinsic to the choosing self. In other words, if prior attachments to family or to community are to express our
capacity for self-determination and thus are to have normative validity, it must be possible to think of them as forms
of participation for which individuals can, on reflection, view themselves as responsible, and which they can affirm
from this standpoint.

If, however, the conception of the person were defined only in terms of negative freedom, that is, from the
standpoint of abstraction and thus as independent of any content, the will would not be represented as having a
determinate content of its own-it would be simply undetermined. In this case, it would not be a will, for purposive
activity is in the here and now and it entails the willing of something: choice is directed toward the realization of this
or that. Thus negative freedom, taken by itself, articulates only a necessary but not a sufficient condition of free
agency. We must also refer to the subject's capacity to have a specific content. This is the second step in the analysis
of the conception of the person, in which the person is conceived as a determinate subject of choice that realizes
itself in a definite way.

But, further, if the free will is to be represented as self-determining, it cannot, in willing something specific,
have just any object. In willing something determinate, the subject must express its power to set ends for itself
independent of what is merely given and give objective reality to the universality that is entailed by its capacity for
negative freedom. This constitutes the will's positive freedom. [FN81] On a constructivist conception of the person,
freedom consists just in this integration of the two aspects of universality and specificity in agency.

This last point should be emphasized. On the view I am presenting, freedom does not consist in persons having
a capacity to will one object of inclination rather than another. Nor is it assured just by the fact that one's wanting to
have a particular purpose could have been otherwise. To be sure, this latter proviso is a necessary condition of free
choice and, at bottom, it presupposes that persons have a capacity to stand above and to withdraw themselves from
every object of desire. In other words, it implies a capacity for negative freedom, in the sense discussed above. What
is essential, however, is that the condition of "could have been otherwise" (the subject's negative freedom) be
expressed directly and positively in the choice of an object. Otherwise, willing, which involves directedness toward
an object, cannot be represented as free. Now if the only kind of object that can *557 be chosen is one in relation to
which agents, qua free, must be viewed as having a capacity to abstract, the choice of such an object cannot
positively and directly express their moral independence. On the contrary, their freedom is shown only in virtue of
the fact that they can withdraw from, hence not choose, the object. They can express their independence solely
through their capacity to remain undetermined toward anything. But willing that is without an object is not willing at
all. What is needed, then, is a kind of object that is not one from which persons can abstract-not something of which
it may be said they could have chosen otherwise-but one that must necessarily be willed if their freedom is to have
actuality. Only an object that is in no way given to the choosing self can meet this criterion. It would have to be,
therefore, an object that is itself constructed from the standpoint of the self's independence. In this way, the proviso
that a particular choice could have been otherwise can be expressed, not in the dissipation, but rather in the
realization of an object. This allows for an elucidation of willing as free. [FN82]

*558 The construction of this object constitutes the second part of the constructivist account. In this Essay, the
discussion of this second part is itself divided into two steps: the first presents a conception of obligation and
entitlement that is based on the constructivist notion of the person; the second works out first principles that reflect
this conception of obligation. Now following Hegel, I shall refer to the object of construction as "right" (Rechts). In
his words, right is "the realm of freedom made actual, the world of mind brought forth out of itself like a second
nature." [FN83] On this meaning, "right" signifies any and every kind of normative reality, understood in keeping
with constructivist premises. Thus, it is not limited merely to what contemporary writers call "the right" as
contrasted with "the good." Constructivism holds only that for something to belong to the domain of right it must fit
with, indeed it must express, the conception of the person just discussed. And there are different kinds of right (for
instance, juridical, political, or ethical) depending on which specific form of the person is expressed.

Seeing that persons are viewed here as having a capacity for unconditioned free choice, something is validated
as an aspect of right if, and only if, it would be chosen by persons so conceived. Right is the kind of object that can
be chosen by persons who, for the purposes of moral evaluation, have the power to view themselves as independent
from everything given. Hence the fundamental constructivist thesis that right is constructed on the basis of a certain
conception of the person. Further, right, and whatever embodies it, must always be respected as an end in itself. This
follows from the nature itself of right, as just defined. A subject that is able to conceive of itself as independent from
the given has itself for sole object and goal and is, in that respect, unqualifiedly self-relating. But on the
constructivist interpretation, this is what the person is and right is simply the mode in which this is expressed. To
treat whatever embodies right merely as a means to and as conditioned by something else is, on a constructivist
view, to act inconsistently with its character of self-relatedness and with the possibility of morality itself. It is
morally arbitrary.

To conclude this general discussion of the constructivist interpretation, I wish to indicate briefly how it satisfies
the three formal conditions of a moral point of view that were stated at the outset of this section. To begin, in virtue
of persons' negative freedom, that is, their capacity to view themselves as independent from everything given, the
power of choice is represented as unconditioned by natural causal determination and, more generally, by everything
that is not posited by its free activity. In this way, normativity is conceived as rooted in itself and as explicable
through itself, *559 this in keeping with the formal condition of self-sufficiency. Moreover, the form of abstract
universality that is necessarily entailed by negative freedom provides a standpoint for judgment that is unqualifiedly
general and shared, and in this way objective. [FN84] Everything merely given is disqualified ab initio as a
justifying ground for choice: a conception of the morally arbitrary is identified and excluded. In turn, the subject's
positive freedom implies that the sole perspective from which a responsible agent is to judge the propriety of its
actions must be framed in terms of this form of universality. This standpoint is conceived, not as an order that is
given independent of and prior to purposive activity, but as a form or structure that is wholly immanent in it. Lastly,
right simply expresses this conception of the person in a way that is consistent with the latter's own standpoint and
intrinsic premises. Right constitutes an object that can be chosen by a self that is itself undetermined by any given
object. In sum, right is nothing other than the moral point of view realized in the form of a freely constructed and
suitably objective realm.

B. Specific Conceptions of the Person and of Right for Corrective Justice:

Personality and Abstract Right
Constructivism, I have said, interprets the standpoint of the normative as entailing distinct forms of a conception
of the person as responsible agent; moreover, each such form is the basis of a specific mode of right that, in turn,
singles out a particular kind of social relation for which first principles are to be constructed. In this section, I shall
elucidate a specific form of the conception of the person-"personality"-and a particular notion of right-"abstract
right"-that can be the basis of first principles for transactions. Those principles will be worked out in Part III.

A natural way to begin might be along the following lines. In the discussion of corrective justice, we saw that its
underlying conception of the person is unqualifiedly abstract: it is framed without reference to any particular aspect
of the person through which individuals can be distinguished from each other. What we need, then, is a form of the
constructivist conception of the person that construes the subject's independence from everything given just as
independence from all particularity. Now for constructivism, independence from particularity must be in fact the
absolutely minimal condition of responsible agency. Let me explain why.

When we view persons as the free authors of their deeds and as unqualifiedly accountable for them, we do not
presuppose anything other than their capacity for choosing, and whatever this entails, as the justificatory basis and
reason for their actions. Reference to their endowments or personal features (both native and acquired), their
propensities and purposes, their upbringing and social circumstances, and so forth, does not as such provide a
ground of justification. As accountable, the self must view itself as having the unlimited capacity to stand above, to
distinguish itself *560 from, and to assess each and all of these factors, whether they be taken singly or all together.
Indeed, any and every thing that might be a possible object of choice or that might possibly affect choice must be
regarded in this way. Now free choice is always in relation to a specific situation that confronts the agent, and each
situation is itself constituted by particulars that can be understood or recognized and intelligently responded to by
the agent. However varied the contents of these particulars may be from one situation to the next, each is "this"
rather than "that," something specific and definite which can be an object of choice or can affect it. That is why
when we are considering the absolutely minimal condition of free agency, the subject's independence from the given
must first be understood to consist in independence from particularity simpliciter. Particularity as such is represented
as something that is to be categorially excluded as a possible justificatory ground of choice. [FN85]

On a constructivist account, the first condition of free agency is thus the capacity to think of oneself, not as
concretely determined in this or that way, but rather as "a completely abstract ego in which every concrete
restriction and value is negated and without validity." [FN86] In this manner, a subject is related to itself and
necessarily views itself as an end in itself. Herein lies its freedom. A subject that can have this abstract conception of
self is "personality." I should point out that, from the standpoint of personality, individuals need not have this
abstract conception of themselves explicitly before their minds. It suffices that they can, on reflection, recognize this
view of themselves as implicit in and presupposed by their moral experience of responsible agency. Otherwise, they
cannot reasonably be regarded or treated as accountable for their actions.

Personality entails, then, a form of self-consciousness in which the subject has itself for its object, an "I"
unqualified by anything particular or determinate and utterly without internal differentiation or complexity. More
precisely, the self that the subject has for its object is both formally and substantively simple: it is a formally simple
"I," being a sheer unity of self-consciousness and a single, self-relating locus of responsible agency *561 that is not
yet explicitly defined as in unity with other "I"s-its identity is not yet the more complex "we" that signifies a many-
in-one; and it is a substantively simple "I" that does not incorporate, but on the contrary abstracts from, the
multiplicity of concrete factors that constitute the particular aspect of purposive activity. As previously mentioned,
these factors may be internal (such as natural endowments and features, determinate needs or purposes) or external
(for example, ties of relationship with others, contingent natural or social circumstances in which an agent is
placed). The standpoint of personality is thus that of a simple unit inwardly aware of its sheer independence from
everything particular. And inasmuch as personality postulates a subject's unconditioned relation with itself,
personality-and all that it implies-must be respected as an end in itself. It must never be treated merely as a means to
something else.

Not only are persons free in virtue of their capacity to abstract from every particular determination. They are
also equal. This follows from the fact that their capacity for choice is characterized in terms of a standpoint which,
being independent from particularity, is necessarily devoid of any factors that might distinguish them. Hence they
must be simply and unqualifiedly identical insofar as they are viewed as bearers of personality. The "I" that is
independent from particularity must be the same as, and in this sense equal to, every other "I." I will call this
implication the "postulate of abstract equality." In accordance with this postulate, everything that is attributed to
subjects in virtue of their being personality must be ascribed equally and identically to each of them. Any inequality
in this regard would directly violate their status as ends in themselves. Being an implication of negative freedom, the
postulate of abstract equality constitutes an unconditional normative criterion that must be respected in all our
choices. It does not add to or alter in any way the utterly simple and contentless self-consciousness that characterizes
personality, but merely represents the universality that is inherent in this minimal formulation of negative freedom.
Like personality itself, universality here is simple and contentless-it is formal or absract universality. It articulates a
perfectly general and common standpoint, which everyone can adopt as an equal and which is wholly unqualified by
anything that is merely particular or contingent. It constitutes, then, a standpoint from which objective normative
judgments can be made. As we shall see, it is this abstract universality that must be preserved in the articulation of
the subject's positive freedom. It is also the basis of the general requirement of justice that persons be accorded-as a
matter of right-formal equality of treatment.

In the light of the preceding remarks, let us say that the only moral power that is specifically attributed to agents
just in virtue of their being personality is a capacity to choose from a standpoint that is wholly undetermined by
anything particular. [FN87] This power defines a definite normative conception of the person, at least in terms of the
idea of negative freedom. At this point, however, the following objection might be raised. *562 Given that
individuals are inescapably particular and that it is a question here of determining how one person should act toward
another, does not the attribution of independence from particularity as well as the view of agents as single "I"s
wrongly abstract from the reality of agency? Indeed, on this basis, how can one account for the existence of a
plurality of agents characterized by different features and circumstances? In reply, the elucidation of personality
does not deny that agents are differentiated by their particularities nor that there are in fact a plurality of agents. On
the contrary, it takes these as given possible facts that characterize human agency in the here and now. What is at
stake is not the existence of these things but only their significance from a moral point of view. The claim is that the
minimal condition of agents being genuinely responsible subjects is that they have the moral power to choose from a
standpoint that is not tied to anything particular. The justification of the choice of any object must reflect this first
premise of accountability.

But how does this justification apply? In other words, how do we give the moral power that defines personality,
namely, independence from particularity, scope and reality in the here and now of actual choosing? This, it will be
recalled, is the question of positive freedom, in virtue of which subjects are represented as actual, specific agents
choosing in the here and now, but consistently with their status as free. Here it is the formal self-relatedness and
independence of personality that must be preserved. Specifying an appropriate interpretation of positive freedom
completes the account of the person. The problem is then: How is the conception of the person to incorporate the
aspect of specificity without undermining personality's independence from everything particular?

It is clear that the particularity from which the subject abstracts is the only element in which the conception of
the person can have specificity and determinacy. Consequently, it must be with reference to those factors, both
internal and external, that the subject's freedom is to have reality in the here and now. But how is the moral power of
independence from particularity to be expressed in the medium of particularity in a way that properly reflects and
preserves the bare abstractness and independence of personality? Whatever else it involves, the analysis must be
undertaken from the standpoint of personality alone. When this is done, as I will now explain, particularity must be
viewed merely as something that persons can use as a thing. The claim is that the moral power to abstract from
particularity can be expressed in the here and now of actual choosing only as a moral capacity to use things.

Since the freedom of personality consists in the subject's capacity to distinguish itself from everything
particular, the latter must be what is immediately different from personality. Being distinguished from personality is
what, from the standpoint of the normative, the particular is. Whereas, we have seen, personality entails contentless
self-relatedness, what is distinguished from personality must be defined by contrast as what is not self-related or
free, what is merely relative to something else, and so on. Notwithstanding the rich concreteness of content
represented by these particulars, they share relative to personality the same form of being given. In relation to free
will, therefore, their only significance is that they do not have intrinsic validity: this is what they are, this is their
essence, from the *563 standpoint of the normative. Being without the form of self-relatedness, they can therefore,
consistent with this standpoint, be used merely as means to something else. The normative significance of the
particular in purposive activity, insofar as it counts as merely distinct from personality, is only that it is something
usable. In normative terms, it is a thing. From the standpoint of personality, the normative significance of the
satisfaction of particular interests or of the realization of particular ends (that is, of the particular in willing) is
framed solely in terms of the usability of things.

"Thing," like "personality," refers to a normative dimension rather than to an entity as such, whether physical or
otherwise, and more specifically to a dimension that contrasts with the self-relatedness of personality: a thing is
anything-whether a personal feature, an action or an object in the external world-that, because it is properly viewed
as immediately different from personality, is, normatively, something which can in principle be treated merely as a
means. Of course, the circumstances and modes of such use must respect the relevant principles of right, which I
discuss in Part III. The concrete features of purposive activity are considered solely in relation to the standpoint of
personality; they are represented, not in terms of their different particular contents, but formally, as abstractly
identical things. The characterization of their essence in these terms constitutes the first step in the conceptualization
of a specific aspect for the person that is not given to but rather by its free activity. At this stage in the constructivist
account, the contrast between personality and things is normatively exhaustive and regulative. [FN88]

The outcome of the preceding discussion is that it is morally possible, that is, it is permissible, for free agents to
use whatever has the status of a mere thing. Indeed, it must be morally possible for persons to do so. Stated in terms
of its opposite, there can be no prohibition that would place usable things beyond the purposes of persons. For there
to be such a prohibition, it would have to be required either by the nature of a thing or by the nature of personality.
But insofar as something falls under the category of thing, it contains nothing that can exclude subordination to
extrinsic purposes or that can limit the kinds of purposes to which it may be put. And, similarly, there is nothing in
personality that precludes such an object being used as a means. As already discussed, from the standpoint of
personality, particular determinations have only negative significance. The particular is what can be distinguished
from personality and so is not free. As such, viewing it as something to be used cannot possibly be inconsistent with
respect for personality. If respect for personality required that usable things be put beyond possible use by persons,
this would mean in effect that the self-determining nature of will deprives it of the possibility of having any object
and thus of being realized in the here and now. But this would be *564 self-contradictory. [FN89]

The moral possibility of using things implies a moral (as distinguished from a physical) capacity to use them.
Because it expresses the moral power of personality in the here and now, this capacity can be said to inhere in a
subject as personality. And consistent with the postulate of abstract equality, it belongs equally and identically to
every subject. Now, as previously discussed, personality involves a capacity to view oneself as an "I," simple in
form and contentless, and therefore as a single, self-relating locus of responsible agency. This conception of the
person is not constituted by a community of "I"s, where the appropriate standpoint would be that of a collective
"we." At this point in the constructivist analysis, subjects are represented as persons who are both identical to and
separate from one another. Since the capacity to use things is attributed to and exercised by subjects that are viewed
in this way, it must itself be individual and exclusive in nature. Thus, when I bring something under my will, I stamp
this subsumption with a character relation to it that is also individual and exclusive. In keeping with the basic
difference between persons and things, the thing does not count as another "I" but as "mine." To say this is simply to
make explicit the standpoint that invests the use of things with the admittedly limited moral significance of
reflecting the standpoint of personality alone.

In the last few paragraphs, I have suggested that the recognition of personality in the here and now-whereby it
has determinate reality-entails that persons must have a permission to use things. I have presented this permission as
a minimum requirement. But it also sets a maximum in the following way. While it must be morally possible for
persons to use things, it is in no way necessary that they do so. On the basis of personality alone, they cannot be
obliged to use or to acquire things. Nor is permission granted so that individuals can fulfill their various interests,
purposes, or needs. The justificatory basis of the permission does not lie either in the satisfaction of any particular
interest or need, however substantial, or in the promotion of individual or social well-being and development. These
and related considerations have no standing from the standpoint of abstract personality.

To see why, we must keep in mind that the freedom of personality (and therefore its constitutive moral power)
consists solely in the subject's capacity to distinguish itself and to think of itself as independent from every particular
determination, not in a capacity to form and pursue ends through which it can express its freedom. The hallmark of
personality-as well as of everything that is based on it-is indifference to and independence from particularity as
such, including the person's very life and existence. And it is just this standpoint of personality that must be given
*565 definite expression. Accordingly, the mode of giving specificity to personality must not be framed in terms of
anything particular to be realized, even where the latter is minimally necessary to maintain agents in existence. For
this would not give specificity to the standpoint of independence but, on the contrary, would directly annul it.
Neither the pursuit of particular ends, whether merely permissible or obligatory, nor the satisfaction of substantive
interests are modes through which the freedom of personality is to be expressed and given specificity.

This does not imply, of course, that individuals are in fact without particular ends or interests which they may
wish to realize. On the contrary, I have said that throughout this discussion we presuppose that individuals can in
fact engage in purposive activity and, consequently, that they may in fact have purposes. Such matters of fact are
taken for granted. Our question concerns rather the normative significance of these facts. It is always in relation to
the standpoint of the normative that such significance is to be determined. And when this standpoint is articulated in
terms of personality, the satisfaction of interests or ends of any kind (being determinate and having to do with what
is particular and thus given) cannot yet be postulated as part of freedom. The fact that individuals may have
determinate ends and interests does not mark them as personality. From the standpoint of personality, then, the
satisfaction of interest and directedness toward ends are features of agency that are not, in themselves, expressive of
freedom and contain no aspect of right of their own. They are considerations that do not yet have independent
normative significance and are not yet recognized on their own account. While a subject, as a choosing agent,
always chooses something (this rather than that) and therefore, we assume, has determinate ends in fact, the
normative significance of its choice, considered solely from the standpoint of abstract personality, lies neither in its
determinate content as such nor in the subject having an end, but only in the choice being compatible with the
subject's independence from every particular determination and with whatever such independence implies.

It follows, then, that the particular conception of the person called "personality" is not yet specified in terms of a
moral power to realize determinate conceptions of the good. In this respect, therefore, personality is unlike the
conception of the person that lies at the basis of, for example, Rawls's political conception of justice for the basic
structure. [FN90] While a moral power to have and to realize a conception of the good (the second moral power in
Rawls's account of the person) arguably presupposes the capacity to abstract from given particular determinations,
inasmuch as the latter is a necessary condition of being accountable in the choice of one's ends, [FN91] the capacity
to abstract is, taken by itself, neither identical with nor *566 sufficient to ground that moral power. The conception
of the person that is entailed by personality is, then, wholly independent of any reference to the good. This also
holds, as I shall try to show, for the derivation of the first principles of right that are based on personality alone and
that are specifically framed for transactions. The claim is that such principles can be accounted for without recourse
to any premises, whether motivational or otherwise, that invoke the concept of goodness, even in a limited way.
Their derivation does not even depend on what Rawls has called a thin theory of the good, which is an essential part
of the justification of the principles of distributive justice. The first principles of right that are based on personality
are not and indeed cannot be designed so as to advance persons' expectations with respect to things, such as primary
goods, which they may generally need in order to realize their ends. [FN92] Or so I shall argue.

If the capacity to use things is to express personality and nothing more, it must reflect indifference to ends and
to particular interests as such. Neither therefore the capacity itself nor even the requirement to respect it is to be
construed in terms of an end that the subject must adopt in order to be free. [FN93] While persons are permitted to
use things, this is not to enable them either to express and exercise a capacity to form and to pursue a conception of
their good, or to acquire the necessary means to achieve their chosen determinate ends. Accordingly the capacity to
use things does not seem to be either ethical or political in conception. A political or ethical conception must, at the
very least, specify certain ends as obligatory (if only the end of realizing justice), and must identify certain definite
needs and interests as deserving of fulfillment. [FN94] Such a conception must invoke, even in a limited way, the
concept of the good. But this is not the case with the moral capacity that is presently under consideration. Rather, it
is framed wholly in abstraction from any conception of ends as such. Indeed, this is its distinguishing feature. And in
view of this feature, although not because of it alone, I characterize the capacity to use things as juridical in
conception. The reasons for doing so will be brought out more fully when I discuss the conception of entitlement
and obligation and the first principles of right that are based on personality.

*567 Thus far, I have argued that abstract personality achieves specificity-and can only do so-in a moral
capacity to use things. I have also said that the capacity is individual and exclusive in character. Because it
represents the application of the moral power of personality in the here and now, it must be respected as an end in
itself. This capacity defines the minimal shape of positive freedom. But further, what is the kind of obligation or
entitlement that is implied by it? This is what I must now explain. The task is to work out the conception of
obligation and entitlement-the notion of right-that is based on personality. It is at this point that the moral capacity to
use things is formulated as a right to own them.

As a preliminary matter, it is important to determine whether the moral capacity to use things, which, I have
argued, is attributed without distinction to every individual qua personality, is in its very conception limited or
otherwise qualified by conditions of any kind. If it is, this would naturally affect the scope of the requirement to
respect the capacity and its exercise. For example, is the permission to use things limited to certain sorts of uses
only, such as the satisfaction of legitimate needs or the attainment of aims that have ethical worth? Or is the valid
exercise of the capacity restricted by a condition stipulating that there must be enough available for all to meet their
basic needs? Does the requirement of respect apply only when a person is actually using or is in physical possession
of an object? In keeping with the constructivist approach outlined in this Essay, answers to these and similar
questions are worked out in the light of what the relevant conception of the person-here, personality-implies.
Normative considerations that are not entailed by this standpoint play no role whatsoever.

What limitations, then, might be justified on this basis? Certainly, the capacity to use things must be framed
consistent with the kind of equality and freedom that are specific to personality. The freedom of personality, we saw,
consists entirely in the subject's capacity to be independent from everything particular and its equality is just the
pure identity that is implied by the abstractness of this standpoint. Moreover, I suggested that in relation to this
standpoint, particular purposes do not have intrinsic normative significance. The positive freedom that is
characteristic of personality is not as such constituted by the pursuit of particular ends, whether they be merely
permitted or obligatory. Given these conceptions of equality and of freedom, it is clear that the capacity to use things
is not restricted to only certain kinds of purposes or ways of using them. Nor do the needs of individuals constrain
the valid exercise of the capacity. It must be emphasized that a subject qualifies as personality just because it has the
capacity to choose independently of its needs, however pressing they may be. Further, since positive freedom
consists here merely in having a capacity to use things, the exercise of this capacity involves only the establishment
of a power over something, whereby it is effectively subordinated to the will of a person and thus made susceptible
to being used by him or her. From the standpoint of personality, the significance of putting something to actual use
or of being in physical possession of it is that these are possible ways of indicating that one has brought the object
under one's power, thereby instantiating one's general capacity to use things. But, of course, the existence of this
power need not depend on either actual use or continuous physical possession. Consequently, the requirement to
respect the capacity *568 and its exercise can apply in principle even where these are absent. And finally, a person's
assertion of power over a thing is not subject to inherent temporal constraints. On the contrary, it can endure as long
as the person wills it. For it is the moral power of abstraction that alone constitutes the standpoint of personality, and
this power manifests an unrestricted unity of self-consciousness over time, the possibility of which must be
presupposed in some form if there is to be genuine accountability as we ordinarily understand it. With respect to the
temporal dimension also, there is no basis for limiting the capacity to use things.

It seems, then, that all subjects qua personality have the same inherently unlimited capacity to use things. Given
that it is the completely abstract standpoint of personality that alone is regulative, how could there possibly be any
limitation placed on the capacity and its exercise? Any such limitation would have to refer to some determinate
consideration, but it is precisely these which personality transcends.

With this conclusion as background, let me now identify the kind of obligation and entitlement that is entailed
by the permission to use things. My aim here is to specify its structure and main features in the light of the
conception of the person. It is not until Part III that I propose first principles of appropriation that embody this
notion of obligation and entitlement.

The first feature of the conception of obligation and entitlement that rests on personality is that it is structured
relationally: the basic unit of analysis is always a relation of correlative right and duty between two mutually
independent yet abstractly equal persons. As I will now explain, this feature reflects the fundamental premise that
personality, and all that it entails, is fully respected as an end in itself if agents act consistently with their
independence from every particular determination. More specifically, it rests on the requirement that agents respect
everyone's equal and inherently unlimited capacity to use things.

To begin, consider first my choosing to do something with my things. Because the requirement pertaining to the
use of things is merely permissive, I am not positively obliged to acquire or retain anything for my use. Where I
alone am concerned, I need not view the subordination of a thing to my purposes as something that I must respect as
an end in itself and leave undisturbed. It counts merely as a particular determination from which I can withdraw at
will, this being consistent with my independence and freedom. Whatever I do in this regard cannot possibly be
incompatible with respect for my personality or for my capacity to use things.

However, the same is not true of my actions that may affect another's thing, that is, something which another
has subjected to his or her purposes. I cannot rightly view the subordination of a thing to another's will as nothing
more than a particular determination which I may choose to negate. This is because it represents the other's will and
decision, and if I interfere with it, my doing so is not, taken in itself, expressive of the other's independence. On the
contrary, from the other's standpoint, such interference counts as an external imposition that restricts his or her will.
By impinging on it without the other's consent, I can affect his or her capacity to use things.

*569 If we combine this point-that the requirement of respect only applies to the possible impingement by one
person on what has been subsumed under another's will-with our prior conclusions,-that the capacity to use things is
attributed to abstractly equal but separate persons and that each person's capacity must be respected as an end in its-
we arrive at the following idea: Whether personality has been respected is decided in the context of a two-person
interaction, where one has affected in some way what is another's. The existence of a relationship of this kind, taken
by itself, is not only a necessary but also a sufficient condition of the applicability of the normative criterion. Thus,
where interaction involves more than two individuals, it must be possible, for the purposes of normative evaluation,
to conceptualize it either as reducible in fact to a two-person relationship or as comprising a number of distinct two-
person relationships, each of which must satisfy the requirement of respect. The two-person relationship always
constitutes, normatively speaking, the relevant unit of analysis.

In relation to others, it must be possible to view the exercise of the capacity to use things as at least a liberty that
violates no one else's right. Unless this were so, the general requirement that it be morally possible for persons to use
things could not be fulfilled. But in addition, and more importantly, constructivism holds that it must be possible to
regard the exercise of this capacity as giving rise to a genuine right or claim which others have a corresponding duty
to respect. For the exercise of this capacity by an individual has, taken by itself, universal import. Given that
individuals are identical as persons, it signifies that the subject, as free will and thus as necessarily and unqualifiedly
representative of everyone, has chosen with respect to a determinate object. But this is nothing less than positive
freedom itself. If I have exercised my moral capacity to use things by rightfully bringing something under my
power, others must not subject the thing to their purposes without my prior consent-for to do so would be
incompatible with my power to use it however and whenever I wish. Unless it is possible to say that others must
respect my power in this way, how can there be any object of choice that must be treated as an end in itself, when
the relevant standpoint is that of personality? Accordingly, the requirement to respect another's capacity to use
thigns must be framed as a duty to respect the other's right. Note that I have not yet specified what moral conditions
must be satisfied if a manifestation of choice with respect to things is to count as a rightful exercise of the equal
capacity to use them. I shall do so later in Part III. My point here is that even prior to determining those conditions,
it is possible to conclude that the rightful exercise of this capacity must give rise to a relation of correlative right and
duty between two persons.

To this it might be objected that it would be expressive of positive freedom for a second person to displace the
first without his or her consent, because, in doing so, the second merely substitutes his or her identical will (to use
the thing) for the first's. The objection holds in effect that, in this circumstance, the second will can properly be
viewed as the equivalent of the first. But this is to ignore that the first person's will has already been expressed and
that it must therefore be respected as an end in itself, for which there can be no equivalent. The point can be made in
another way. *570 The second will can count as the equivalent of the first only insofar as it is identical to it.
However, the sameness of individuals consists here solely in their being abstractly equal ends in themselves. By
failing to accord the first respect, the second violates their identity as persons and so cannot be represented as
equivalent.

I conclude, then, that the fundamental unit of analysis here is a relation between two persons having correlative
rights and duties: a person's duty is always owed to another, who has a corresponding right. Put in negative terms,
persons do not have duties toward themselves, nor can they be constrained in relation to themselves. Personality is
thus given specificity through a conception of obligation and entitlement that necessarily has the form of relation to
another. Assuming, then, the existence in fact of two or more individuals who can interact with each other, they are
viewed as free just insofar as they are judged in terms of their interaction analysed as entailing a structure of
correlative right and duty.

The assumption that there are two or more potentially interacting individuals goes to a purely empirical fact.
Unless there actually exist at least two individuals who can interact with each other in this way, there is no occasion
for the obligation to apply. The existence of two or more potentially interacting individuals may thus be viewed as a
circumstance of justice, so far as the imperative to respect personality is concerned. This fact is singled out as a
circumstance of justice by the conception of obligation itself, given that one of its essential features is relation to
another. Showing the latter to be an essential feature of the obligation, then, does not (and is not intended to)
somehow generate the existence of interacting individuals; rather, it elucidates the normative significance of
interaction, if it happens to occur. Notice, finally, that, in contrast to teleological theories of rights, the derivation of
the structure of correlative rights and duties presented here is not grounded upon an ultimate duty to promote any
end whatsoever. [FN95] The structure simply makes explicit what is implied in the basic normative premise that it
must be possible for persons to use things. Indeed, this derivation may also be distinguished from the most important
contemporary deontological theories of rights, insofar as it makes no reference to the needs or purposes of
individuals and, more generally, to the concept of the good in any of its possible forms. [FN96]
 The second feature of the conception of obligation and entitlement that rests on personality is what I shall call
its "external" nature. [FN97] This feature builds on the first point-that the obligation is framed in terms of relation to
another. But it does so by developing the idea of an external relation in the light of the basic premise that the
freedom of personality does not consist in, and is not constituted by, the pursuit of purposes as such. From the
standpoint of personality, we have seen, the realization of purposes is in *571 itself devoid of normative
significance. Accordingly, the requirement to respect persons' equal capacity to use things in terms of individual
purposes does not construe the character of a relation between persons in terms of their individual purposes
(subjective understandings, intentions, and so on) as such. This feature has three implications that define the
requirement's external character and explicate more fully the idea of an external relation between persons.

First, the requirement applies only to acts that can affect another's capacity to use things: purposes which are not
manifested in actions of this kind are normatively irrelevant. There must be an external manifestation of will; in
addition, it must impinge, not just on another's purposes or intentions as such, but on that through which personality
has reality in the here and now, that is, on the individual's capacity to use things and whatever this entails. Persons
are mutually independent in the sense that unless they can impinge on each other in this way, they do not owe one
other any duties, so far as respect for personality is concerned. Second, the normative validity of an action is
decided, not by reference to its author's subjective intentions, purposes and understandings as such, but in terms of
conditions of respect that one ought reasonably to suscribe to when one's actions can impinge on another. The
standpoint of evaluation is public and relational. [FN98] Third, the applicability of the requirement to respect
another's capacity to use things does not depend upon an individual actually assenting to it. By choosing to act in the
world, one necessarily submits to this standpoint of judgment. Moreover, given personality's indifference to purpose
and intention as such, the vindication of the requirement does not presuppose that individuals ought to have either
the requirement or its vindication as one of their ends. The external character of the conception of obligation implies
that the vindication of the requirement can take the form of an act of external compulsion or coercion that is
exercised against the agent. In this respect, compulsion is consistent with the agent's freedom, because freedom is
still external at the standpoint of personality. By contrast, insofar as freedom is constituted by and consists in the
pursuit of ends, coercion is no longer morally possible. [FN99]

This brings me to the third and last feature of the conception of obligation and entitlement that rests on
personality. The coerceable duties that individuals owe each other in virtue of their having personality are *572
negative. In the final analysis, their duties consist of prohibitions only. Now because it is widely thought that all
requirements of strict justice, even those pertaining to distributive justice, are negative only, the question arises as to
the specific way this may be true of the requirement to respect personality. The answer draws on the purely
permissive nature of the right to use things, coupled with the fact that it reflects the special character of the freedom
of personality, which consists in the agent's independence from everything particular. I should add that my aim here
is not to work out the content of the prohibitions. That can be done only in the light of appropriately justified first
principles of right, a topic which I take up in Part III. Here, I wish to discuss why the conception of obligation that
rests on personality is framed in terms of prohibition and what kind of prohibition it involves. As I hope to make
clear, this conception of obligation exhibits the idea of negative duty in a particularly simple form.

The duties that individuals owe each other just in virtue of their being personality can be put this way: Do
nothing that can possibly constrain or otherwise interfere with another's rightful exercise of his or her capacity to use
things. What must be respected is each person's equal capacity, nothing less but also nothing more. This equal
capacity to use things is, I have said, a moral capacity. It expresses the moral fact that persons are permitted to
establish a physical power over things to use them for their own purposes.

It is crucial to keep in mind that the capacity to use things is conceived from the specific moral standpoint of
personality, the essential character of which is independence from everything particular. Given this standpoint, ends
or purposes, we have seen, have no intrinsic worth; they are not constitutive of freedom. The requirement to respect
personality does not therefore entail any obligatory ends. Accordingly, I am not under a positive duty to use things,
nor must I assist others to do so. For the same reason, I need not facilitate in any way the efforts of others or
sacrifice so that they can succeed. But further, given the freedom of personality does not even consist in the pursuit
of permissible ends, the permission to use things does not imply that freedom is more fully realized through
individuals choosing to do so. From the standpoint of personality, the use of things is not viewed as a good which is
to be supported or assured. Quite literally, it is not in any way necessary that the capacity to use things be realized; it
is only necessary that its realization be morally possible.

The right of personality requires then just that permitted to use things, on condition, of course, that the things
are morally available. Now something is morally available to me unless and until it has been already rightfully
brought under another's power. Stated in other terms, the purely negative and permissive character of the obligation
implies that things are to be conceived as res nullius or as ownerless unless and until they have been rightfully
brought under a person's power. My liberty to use it is extinguished in the face of the other's right. The prohibition
governing persons' external actions with respect to the use of things is limited to this one proviso. Clearly, the full
account of the prohibition requires an explanation as to how something is rightfully brought under someone's power.
This I try to do in Part III. Yet, even at this point in the discussion, it is possible to gather something of the character
of the proviso by noting the kinds of normative considerations that do not play a role in its *573 formulation. In this
way, we can see more clearly the nature of the negative duty that informs the requirement to respect personality.

Whether one may rightfully bring something under one's power-and thus exercise one's moral capacity to use
things-does not depend as such on whether other things remain that are morally available for use by the rest. To
start, the fact that persons may not actually have anything to use does not, taken by itself, infringe their right. A mere
permission to do something is not denied by the absence of circumstances in which the thing can be done. Further,
individuals are not constrained from appropriating something just because this makes it morally unavailable to
others. Such a prohibition would mean that no one could bring a thing under his or her individual and exclusive
power, in contradiction with the right of personality. Here it is important to note that because, with respect to their
personality, all individuals are identical, it makes no difference at all which person has brought a thing under his or
her power. Of each thing, the right of personality holds only that it not be treated as beyond possible possession by
someone. Given that personality is completely and identically embodied in each individual, there is no basis here for
a requirement that things be owned by different individuals. Consistent with respect for the abstract equality of
persons, the appropriation of everything by one has the same normative significance as the appropriation of
something by everyone. Nor, finally, are individuals barred from appropriating things for their own use just because
there do not remain enough other things for their own by the rest. Given the purely permissive nature of the right
here, no one is obliged to assure that others have things to use. Respect for personality does not impose any positive
duties. Thus, great inequality in holdings and even sheer propertylessness can, as such, be perfectly compatible with
respect for each person's equal capacity to use things. [FN100]

Now it might be objected that this interpretation of the requirement is unsatisfactory because it does not give
any independent significance to a person's interest in having things or to his or her needs and well-being, which may
certainly be frustrated if only one or a few are able to acquire rightful possession of everything. But this objection
presupposes that an interest of this kind or, more generally, needs and welfare are normatively relevant
considerations. And this is precisely what the standpoint of personality as well as the requirement to respect abstract
equality preclude. Given that the freedom of personality is framed independent of the whole sphere of particularity,
that is, of all considerations relating to wants, needs, or welfare, the conception of obligation that rests on it does not
include an *574 interpretation of needs as normatively valid. As previously discussed, the use of things is not
viewed as a good to be realized or supported. Given personality's complete indifference to ends as such, the moral
significance of using things cannot lie in its relevance to human purposes, whether as a part of a conception of the
good or as a means to its attainment. There is no place here for a doctrine of primary goods or for a conception of
the needs of free and equal persons that can provide a basis for legitimate claims to distributive shares. [FN101]
And, while differences in starting points, whether they be natural, social, or historical in origin, may fundamentally
and pervasively influence individuals' life expectations and prospects, they are-like everything else that is merely
given and particular-features of experience from which personality can abstract. This is their whole moral
significance. At this stage in the constructivist analysis, these inequalities do not, as such, give rise to any issue of
right or justice and therefore do not call for special principles to regulate them.

We can see now how a conception of property, or more exactly a right to have something as one's own, emerges
in a constructivist account. The right of ownership is arrived at simply by working out and making explicit the
significance of the moral capacity to use things. Nothing more is presupposed than the basic requirement to treat that
capacity as an end in itself. Its moral significance is developed from the standpoint of personality alone. To be sure,
a complete account of the right of ownership needs first principles that stipulate the moral conditions under which
something can be rightly acquired. So the discussion up until this point constitutes only a first step. Nevertheless,
there is already a definite conception of ownership at hand.

First, the permission to use things belongs to persons in their individual capacity. Recall that the moral
significance of the power to use things is that in this way the standpoint of personality has specific reality in the here
and now. As previously discussed, the subject of agency, minimally conceived, is the utterly simple unit of self-
consciousness, an "I" that transcends all internal or external differences. This is personality and it is this conception
of the person that is attributed the capacity to use things: at this point in the constructivist analysis, a manifestation
of will is construed then as its will. Further, once exercised, the capacity establishes an inherently unlimited right to
use something at will, and this right is correlative to a negative, coerceable duty on the part of others. The validity of
this right and duty is not conditional upon the nature of the needs and purposes as such either of the individual
exercising the right or of those who are under duty to respect it. Persons are not guaranteed something to own. It is
only their capacity and its exercise that are objects of respect. And to say that these are objects of respect means
simply that, once rightfully established, an individual's power over a thing (by means of which he or she is
physically able to use it at will) must be left undisturbed by others. They cannot use it *575 to further their purposes.
Given that the exercise of the permission to use things represents, morally speaking, the choice of a single self, it is
the latter's will-and it alone-that may rightly determine what may be done with the thing. In this way, personality is
treated as something that can have reality in the here and now. In this connection, it is worth repeating that the
reason a person's power over a thing must be respected is not because the use of things is held to be a good
constitutive of a person's freedom. Rather, respect is owing because personality must always be treated as an end in
itself, and personality implies a right to use things. The moral significance of using things is elucidated from the
standpoint of personality alone, which is not constituted by any end or anything particular.

Following Hegel, I call the conception of entitlement and obligation that rests on personality "abstract right."
The difference between personality and thing expresses in an utterly simple and minimal form the fundamental
distinction between what must always be treated as an end in itself and what may be used as a means only. Further,
the connection between personality and thing that is entailed by the moral capacity to use things supposes nothing
more than, and indeed is directly implied by, this difference. In a constructivist theory, the right to use things would
seem then to be the most elementary mode of expressing the notion of entitlement. More exactly, in abstract right
persons are attributed a capacity to have rights, where these rights represent the most elementary form of having a
coerceable claim against others. Given that other modes of entitlement in a constructivist account would have to rest
on a conception of the person that involves more than bare personality, they would not be elementary in the way that
abstract right is.

To conclude this discussion of personality and abstract right, I should like, briefly, to consider two further
points: First, the seeming insufficiency of abstract right as a justificatory basis for distributive justice, in contrast
with the fit between it and corrective justice; and second, the characterization of personality and abstract right as
conceptions of the person and of obligation that are juridical rather than, say, political or ethical in nature.

Abstract right entails a conception of obligation and entitlement that is not sufficient to ground distributive
justice. To begin, we have seen that a person's purposes, needs, and welfare are considerations that, in themselves,
are without intrinsic moral significance so far as abstract right is concerned. Conceptions of the good, even
considered in abstraction from their particular contents, play no role whatever here. Nor does abstract right require
that the means or conditions for the realization of ends be assured. There is no basis from which to formulate claims
that can be made as a matter of distributive justice. Distributive justice relates to a conception of the person that at
least makes reference to certain specified needs, such as a need for certain all-purpose means, or other features in the
light of which the justice of a distribution may be determined. It presupposes a conception of the person in which the
moral powers are not limited to the power to abstract from everything particular. An example is the political
conception of the person in Rawls's theory, which is characterized by two moral powers relating to a capacity for a
sense of justice and a capacity for *576 a conception of the good. Where the moral powers are framed solely in
terms of the capacity for abstraction from particularity, distributive justice has no application.

Further, we saw in Part I that while distributive justice may certainly result in entitlements that are individual
and exclusive, the members of a distribution must initially be viewed as mutually related through a social whole
with benefits and burdens being construed in some appropriate way as common or collective. Absent this form of
mutual relatedness, a basis for analysis in terms of distributive justice is lacking. But this is precisely the case in
abstract right. Simply put, there is no notion here of a social whole (whether viewed as a system of cooperation or
otherwise) in which persons are mutually related through common claims or burdens. What persons 'share' in
abstract right is simply an identical permission to use things to the exclusion of others. However, this general
permission does not by itself give persons claims with respect to the use of things, whether it be a right to use
something for one's own purposes or a power to constrain others from doing so in certain circumstances. A thing is
simply res nullius prior to its being brought under someone's will. Persons' claims to things are always acquired,
never innate. It is only the exercise of the capacity to use things that establishes rights to things. And this capacity
may be exercised unrestrictedly at will by any individual, without the prior consent of others, subject only to the one
condition that another's rightfully established power over things must not be interfered with. Unless one already and
rightfully has something as one's own, one cannot, consistently with abstract right, determine what another may do
with it. The latter may act without first securing the former's consent. This is in keeping with the purely negative
character of obligation in abstract right.

Abstract right does not provide then any basis for inferring an original community of ownership that might
possibly constrain individual appropriation. [FN102] Stated in other terms, an authority to distribute things can arise
in abstract right only through individuals exercising their equal capacity to use things, thereby acquiring rights to
things. As owners, they may then decide to distribute whatever belongs to them. At all points, their actions are
attributed to them as single selves, this in keeping with the standpoint of personality. If one wishes to speak of a
distribution in this context, then it is one that consists solely in transfers of ownership between two persons-from one
who initially has a right over a thing to another who obtains a right over it with the consent of the first. For abstract
right, "common ownership" signifies at most the possible association of individual owners through transfers of
rights between them.

Abstract right singles out a form of relationship which, on its face, does not exhibit certain essential features of
a distribution. By contrast, the *577 relation fits well with the structure of a transaction in the sense discussed in Part
I. A transaction, we saw, consists in an unmediated relation between two persons, where one has holdings that are
impinged on by the other. From the standpoint of a transaction, persons are not thought of as being members of a
social whole. Their relatedness supposes only that they can have exclusive ownership over things and that such
ownership can be affected in interaction with others. Indeed, they are viewed solely in this light, all other features or
considerations being discounted as normatively irrelevant. In abstract right, persons are represented as single,
mutually independent selves that have an equal capacity to use things. Since they are characterized in terms of an
equal capacity, they are treated as equals, and this constitutes the standard of normative evaluation. But, consistent
with the standpoint of personality, their equality is conceived in abstraction from their particularities, that is, from
the very factors that are irrelevant to the judgment of a transaction. Further, as the discussion of abstract right
showed, the requirement to respect the equal capacity to use things implies a negative duty to respect the rightfully
acquired holdings of others. The capacity to use things is thus accorded respect in and through a relation of
correlative right and duty between persons, a relation that is evaluated without reference to their needs, purposes, or
well-being as such. In short, abstract right postulates a relation between persons with respect to holdings that is
ordered in accordance with a completely abstract standard of equality. The fit between abstract right and corrective
justice seems evident.

This brings me to my final remark. Personality and abstract right, I wish to suggest, are notions of the person
and of obligation that may appropriately be characterized as juridical rather than political or ethical in nature. They
belong to a specific kind of normative conception.

In abstract right, the person is represented as having a bare capacity for rights, with the rights in question being
coerceable claims against others regarding the permissible use of things. This capacity for rights, which is framed
simply in terms of a capacity for exclusive individual ownership, is not something that is conferred on individuals.
Nor is it derived from what might be called an objective normative context, whether it be social, political, or more
generally institutional in nature. Rather, it belongs inherently to every subject just in virtue of its being personality,
and it expresses in the here and now the moral power of free agents to abstract absolutely from everything particular.
Moreover, abstract right represents the pure form of a conception of right and duty that is at once strictly relational,
external, and negative, in the senses discussed above. The complete indifference to ends, which is the foundation of
abstract right, guarantees that it contains no admixture of the ethical. The moral possibility of coercion is not
attached to the obligation as an addition that is justified on distinct grounds. On the contrary, it constitutes an
essential defining feature of the obligation itself. In Kant's words, "[strict] Right and authorization to use coercion
therefore mean one and the same thing." [FN103] *578 And this form of obligation and right is structured in terms
of a relation that is transactional, not distributive. It cannot belong to a political or social conception of justice in
which, at the very least, there must be a notion of shared benefits and burdens and a standard of evaluation that takes
into account the legitimate needs of citizens as free and equal persons.

In general, the juridical conceptions of the person and of obligation have been characterized in precisely these
terms. [FN104] The account presented in this Essay thus accords with the traditional view. What I have attempted to
do, in addition, is to show that these conceptions of person and obligation are mutually and necessarily connected,
once they are explicated on the basis of a certain understanding of the person as free and equal, namely, personality.
That they can be so explained is a central claim of the constructivist approach presented in this Essay. We should
expect, then, that notions of obligation which are not purely juridical in character will presuppose a different or more
complete form of the conception of the person as free and equal, one that involves something more than personality
as defined here, and thus more than a subject that is viewed just as a bearer of a capacity for rights.

III. FIRST PRINCIPLES OF JUSTICE FOR TRANSACTIONS

Having set forth a conception of the person together with a notion of obligation that are fitted for corrective
justice, I must now show that these can serve as a basis for developing first principles of right for transactions. Being
systematically interconnected, personality and abstract right combine to specify a definite point of view from which
a constructivist justification of first principles for corrective justice may be undertaken. For this reason, this
standpoint may be compared to the idea of the original position in Rawls's account, which also functions as an
appropriate moral point of view *579 for the purposes of selecting and justifying principles of justice. [FN105]

However, it is important to underline the fundamental ways in which these two standpoints differ. For each is
specifically framed for a particular and different part of the moral domain: personality and abstract right constitute
the relevant standpoint for justifying principles of justice for transactions whereas the original position is the
appropriate point of view for selecting principles to govern what Rawls calls "the basic structure of society." This
kind of differentiation is, as I have already noted, an important feature of constructivism in legal and political theory.
Before proceeding any further, therefore, it may be useful here to bring out clearly some of the more significant
differences between the two standpoints.

To start, individuals are regarded from the standpoint of personality as having just one moral power, the
capacity to abstract from everything particular, and not the two moral powers that characterize persons represented
in the original position. A second difference is this. The standpoint of personality entails the "thickest" possible veil
of ignorance, to use Rawls's term. The only thing the parties can know is that persons have a moral capacity to use
things and that this capacity can be affected by the actions of others. In contrast to the description of the veil of
ignorance in the original position, the parties do not even know that individuals have determinate conceptions of
their good. This models the fact that, from the standpoint of personality, having a conception of one's good is not as
such a morally relevant feature; it cannot function directly or indirectly as a basis for making claims against other
individuals or against the social order. Further, while the parties must assume that the circumstances of justice
obtain, they-unlike persons in the original position-do not suppose that there must be either moderate scarcity or a
pluralism of conceptions of the good for a question of justice to arise. There may be conflicting claims under
abstract right even if these circumstances do not exist. A question of abstract right justice is immediately raised
whenever it is a matter of determining whether a particular thing belongs to someone rather than to no one. But this
ca occur under circumstances of the most extreme scarcity or of unlimited abundance. Moreover, since in abstract
right persons' conceptions of their good play no role whatever in setting up or in determining their claims to things,
there is no reason to suppose a pluralism of ends as a circumstance of justice. It is not at all a question of
determining how the advantages produced by social cooperation should be fairly distributed among persons who
make conflicting claims on these goods in the light of their different individual aims. This being said, the
circumstances of justice as supposed by abstract right are not for that reason incompatible with an assumption of
pluralism. On the contrary, in abstract right also, there can be no dominant end or ends. However, in the case of
abstract right this is because all ideas of the good are irrelevant to its elucidation. Finally, a third difference between
the two standpoints is that no motivational premises, such as the desire for primary goods represented in the original
position, need or indeed can be supposed when working out *580 principles of justice for transactions. This follows
again from the fact that ends and purposes do not in any way constitute the freedom of personality. Persons' desires
and needs for usable things thus have in themselves absolutely no weight or significance from the point of view of
personality. Motivational assumptions of any kind cannot be built into this standpoint consistently with its special
character.

In this Part, I identify three principles of right that would be chosen from the standpoint of personality. In
proposing them, I now answer a question which I raised but did not address in Part II, namely: How is something
rightfully brought under a person's power, thereby imposing on all others a negative duty of respect that comes
under abstract right? As I shall explain, respect for the equal capacity to use things requires that there be a principle
of bodily integrity, a principle of first acquisition by occupancy, and finally, a principle of derivative acquisition on
the basis of equivalence in exchange. These are explained and justified from the standpoint of personality alone.
They represent the different ways in which persons can be entitled to holdings for the purposes of justice in
transactions. Since the basis of justification is strictly nondistributive throughout, the principles may be viewed as
constituting a content that is fitted for what I have called a pure entitlement theory. In contrast to Nozick's account,
no reference is made to a Lockean proviso or to any other distributive constraint. And if correct, the argument
establishes that the three principles all rest on the same moral basis, such that they stand or fall together. This
conclusion challenges a view, widely held by critics of entitlement theories, that while there may be a
nondistributive principle of respect for bodily integrity, a principle of first acquisition through occupancy does not
rest on the same basis and must be morally arbitrary. [FN106] It is also in disagreement with leading contemporary
entitlement theories which hold that a principle of equivalence in exchange should play no role in the determination
of rights. [FN107]

Our main question, then, is this: How can a person acquire exclusive ownership over a thing by his or her
independent act of will, consistent with respect for the equality of all persons? From the standpoint of personality,
we must now work out a conception of acquisition that entitles a single individual to impose on all others without
their prior consent a duty of respect which they would not otherwise have, namely, a duty to refrain from using
something which that individual has brought under his or her power. Although, as we shall see, ownership over a
thing is established by an act of will, the account of ownership begins with a mode of entitlement and obligation
which, while it must be presupposed as a necessary condition of acquisition, is not itself brought about by an act of
will. I am referring to a right to bodily integrity.

*581 A. Bodily Integrity

I take it as obvious that persons have corporeal existence and that a full description of their existence must refer
to this fact: I can have the capacity for self-determination and can exercise it only insofar as I am alive in this body
which, in Hegel's words, is "universal in content and undivided, the real pre-condition of every further determined
mode of existence." [FN108] It is as corporeal existence that free will has reality in the here and now. Hence it must
always be treated as an end in itself. This relation between persons and their bodies is taken as a possible natural
fact, in the light of which principles of right are elaborated. From the standpoint of abstract right it can be simply
assumed. [FN109]

Several preliminary points should be mentioned here. First, the relation between a person and his or her living,
bodily organism is one of identity, not a relation between owner and thing. Although individuals may distinguish
themselves from this or that particular aspect of their bodily existence, it is impossible for them to do so with respect
to their corporeal existence viewed as an undivided unity and living whole. For this would imply that subjects can
maintain themselves while at the same time abstracting from their real existence-a contradiction. Insofar as persons
cannot distinguish themselves from and stand over against their corporeal existence, the latter cannot be represented
as a thing which can be owned or disposed of at will. Not being a thing, it is inalienable. [FN110] Moreover, this
*582 identity is not brought about by willing. Rather, both the capacity for, and the exercise of, free choice
presuppose it. Note finally that the fact that subjects cannot abstract from this identity between themselves and their
corporeal existence does not make the identity an external constraint upon them, incompatible with their capacity for
self-determination-any more than the impossibility of abstracting from the activity of abstraction itself denies their
freedom.

In the light of this identity between person and body, abstract right imposes upon everyone a duty to respect the
bodily integrity of others. As indivisibly present and alive throughout this body, I am, as personality, distinct and
separate from everyone else. While, as just mentioned, I can certainly distinguish myself from this or that limited
aspect-as opposed to the whole-of my corporeal existence, this can only be accomplished through my own act and
decision, not by others. From the point of view of others, therefore, I must always be treated as simply and
unqualifiedly present throughout my entire body, in each and every part of it. If others touch my body at all, they
touch me, here and now, in my real singular existence. When others impinge upon me, their acts express only their
individual identities with their own bodies, not mine; in relation to me, their acts are merely something external.
Consequently, when others affect my body, they must do so in a way that treats it as an end in itself.

Now insofar as my body is not to be as a thing by others, it can be said to belong (but not qua thing) to me,
whose capacity for free choice has real existence in and through it. However, as already stated, the possession of
one's body cannot itself be acquired through any act of will, because it is already presupposed in every act of will
and, indeed, by the capacity for willing itself. There must be an ultimate precondition and means of one's ability to
acquire possession of anything, one which need not itself be acquired by an act of will-or else we have an infinite
regress. This precondition is one's corporeal existence. If the corporeal existence of a person's will could itself be
rightly treated by others as a thing and subordinated to their uses, individuals could not count as subjects who are
necessarily and universally endowed with a capacity for ownership, nor could the use of things have a moral
significance expressive of free will. This would mean that personality could not be given reality in the here and now
in accordance with the idea of positive freedom. Hence, as far as others are concerned, even prior to any act of will
on my part and thus, to use Kant's terms, as a matter of my innate or inborn right, I am already and necessarily in
rightful possession of my body. [FN111]

As part of abstract right, this requirement of respect is both relational and negative in conception. Thus, in
abstract right, one does not have a duty to respect one's own bodily integrity. This is just to say that one cannot
wrong oneself in this regard. Since my every act, viewed by itself, necessarily *583 presupposes the identity
between me and my body, I cannot possibly act in a way that contradicts this identity, which is the basis of the right.
[FN112] This, we have seen, is not the case so far as others' acts are concerned. Now against this, it might be
objected that one can indeed wrong oneself by treating one's own body or powers as a thing. For example, would I
not be wronging myself if I agreed to alienate permanently to another the whole use of my powers? An agreement of
this kind would certainly seem to entail an alienation of myself-for I am indistinguishable from the totality of my
powers-and this would be to treat myself as a thing. [FN113] But, analysed in terms of abstract right, that is from the
standpoint of personality alone, it does not follow that by consenting to this agreement I have wronged myself.
Rather, the correct analysis is just that the intended effect of my act is morally impossible and the agreement
absolutely void ab initio, conferring no manner of right on the other person. In other words, I would be at any point
free to disregard the agreement and to go back on my word. A different, stronger conclusion-for example, that I am
obliged to disregard the agreement or that I am prohibited from consenting to it in the first place-would presuppose
that in some way I must take my existence as personality, and with it the various conditions necessary for the
maintenance of that existence, as my obligatory end and goal. I would have to treat the existence of my personality
in the here and now as something that I ought to realize and preserve. It could then be said that by acting
inconsistently with this end I have wronged myself. But the supposition of any obligatory end is incompatible with
the standpoint of personality. The imperative to treat personality as an end in itself must be construed consistently
with this standpoint.

Further, the requirement to respect the bodily integrity of others does not stipulate a duty to assist them in any
way, whether to enhance their lives or even to preserve them from an immediate life-threatening danger; it only
requires that one not injure them. [FN114] The conception of duty is *584 negative, in keeping with the character of
obligation in abstract right. That bodily integrity is necessary for human flourishing or for the pursuit of ends is not a
consideration that can underlie the requirement to respect bodily integrity, given abstract right's complete
indifference to all ends whatever their content. Rather, the requirement obtains first, in light of the natural fact that a
person's real existence is corporeal existence, and second, because of the negative imperative against injuring
personality and whatever embodies personality. Persons are owed this duty of respect only insofar as the identity is
true of them, and just in virtue of it. And, to repeat, this identity can be true of persons even before they have
exercised their capacities for choice, that is, before they have acted.

The representation of the identity between persons and their bodies as an end in itself and, therefore, as
implying a right is the first step in giving specificity to freedom in the here and now in a way that is consistent with
the standpoint of personality. Now, since the entitlement to bodily integrity is explicated independent from and prior
to any act of will, we do not yet have here a conception of entitlement that has willing as part of its basis. However,
on a constructivist view, this is what we are looking for. Constructivism conceives the normative as immanent in
agency and therefore we must be able to show that personality can have specificity in the element of the activity of
choosing itself. We must therefore take a second step in the elaboration of the conception of acquisition-one that
explicitly makes choosing the basis of the entitlement.

B. First Acquisition
It is only with this second step that abstract right is properly characterized as property; that is, as entailing a
possible right of ownership over things. What we must now determine is the specific first principle which states how
a person can rightfully acquire exclusive ownership of something that presently belongs to no one, consistent with
the equal rights of all. At stake is the problem of first acquisition. This question arises in the first place because, we
have seen, abstract right does not confer an original or innate right to things. The innate right is that of bodily
integrity. At most, this right implies that if I am physically holding something, another cannot wrest it from me,
inasmuch as this would interfere with my bodily integrity. However, it does not entitle me to prevent another from
taking something that is not presently in my physical possession. On this basis alone, I cannot claim to have an
external thing for my own as a matter of right. But this is precisely what must be accounted for. Thus, prior to
persons bringing things rightfully under their power, things are simply res nullius; no one, whether an individual or a
community, has any claims with respect to them. In addition, it is clear that unless first acquisition can be accounted
for, we will not be able to explain derivative acquisition; that is, how one person can acquire something from
someone else who is already its owner. Derivative acquisition presupposes, then, the possibility of first acquisition.

As I shall now try to show, the principle of first acquisition may be formulated this way: Relative to someone
else, I can acquire an exclusive right over a thing through an external manifestation of will that signifies *585 that I
have effectively brought the thing under my power, so long as my act is prior in time to a similar act by the other.
Once established, my right to the thing continues as long as I am able to manifest my power over it. This principle of
first occupancy, as I shall refer to it, is strictly nondistributive in conception. It reflects the standpoint of personality
and nothing else. Indeed, the claim is that among possible principles of first acquisition, it alone is adequate to this
standpoint. And it embodies directly the principle of entitlement which I proposed in Part I as fitting the Aristotelian
conception of corrective justice. [FN115] Now the principle as stated may be usefully analysed in three steps: There
must be (1) an external act of will (2) whose manifest meaning is that something has been brought under an agent's
power (3) prior to a similar act by a competing claimant. I shall briefly discuss each step in turn.

First, there must be an external manifestation of will. The will to use something must not remain a merely
inward wish or intention. From the standpoint of abstract right, wishes, intentions, or more generally purposes do not
in themselves have normative significance and so cannot as such produce normative effects. There must be an act,
whose meaning is to be determined from a standpoint of relation to another. It has to be expressed in a way that may
be recognized by others. This also is in keeping with the external and relational character of the conception of
entitlement and obligation in abstract right, as discussed in Part II. Accordingly, the fundamental standpoint is public
throughout. Of course, what this standpoint entails is always to be interpreted and applied in the particular context of
a given two-person interaction, for it is here that a claim of right and duty arises.

Second, the externally manifested meaning of the agent's will must be that the agent has effectively brought
something under his or her power so that it can actually be made use of. Stated abstractly, one must show that one
has deprived the thing of its independence, making it something that can be used in accordance with one's purposes.
To establish one's power over a thing in this way is to occupy it. The requirement of occupancy carries through the
previous point that the will to use something must not remain merely inward. Prior to occupancy, the will to use
things can at most be a wish or intention, but, as already noted, these in themselves do not give rise to any claims
against others in abstract right. Absent occupancy, what has one done that externally distinguishes oneself from
everyone else who has the identical permission to use things? There is no basis to conclude that a particular thing
belongs to a particular person, to the exclusion of others. By bringing something under my power, I exercise my
capacity to use things in the here and now and in a way that expresses the distinctively relational *586 and external
character of abstract right: I set up a connection between a thing and myself that can be an object of respect falling
under abstract right.
 But nothing more than occupancy is required. The establishment of one's power over a thing constitutes the full
and complete exercise of one's moral capacity to use it. Thus there is no requirement that one actively do something
with it. Actual use of a specific sort is necessary only if, and to the extent that, this is required to make manifest to
others the establishment or the continuance of one's power over it. Once this power is established, whatever persons
choose to do with their things-including treating them as objects of beauty and contemplation or just doing nothing
with them-constitutes ipso facto use of them. It follows, then, that one's entitlement to something does not
necessarily depend on whether one is, at any given moment, actually using it or actually in physical possession of it.
Rightful possession cannot be equated with physical possession as such. It must therefore be possible to have
something as one's own even when one does not have it in one's physical possession. Following Kant, we may refer
to possession which can be distinct from physical possession as "intelligible" possession. [FN116]

What acts are necessary to establish occupancy in a given case will depend on a variety of factors, such as the
specific nature of the thing, external circumstances, and so forth. This is not a question for legal philosophy to
resolve. For present purposes, it is sufficient to note that where things and persons are physically external to and
independent of each other, some sort of physical occupancy will be required. In order to show others that I have
subordinated something to my power, it will normally be necessary for me to mark it, to alter its ordinary features,
or otherwise to use it in some way. The main point here is that it must be possible for others to conclude reasonably
that the thing is presently subordinated to someone else's purposes. This determines what acts of occupancy are
minimally required.

Third, I can claim something as my own to the exclusion of others only if I have occupied it before they have
been able to do so. My act of will must be temporally prior relative to theirs. This requirement is just another way of
stating the proviso that no one can rightfully bring something under his or her power if someone else has already
done so. Taken by itself, an act of will that actually and effectively subordinates something to one's power represents
the complete embodiment of one's personality in the here and now as well as the full exercise of one's moral
capacity to use things. Hence it must be treated as an end in itself. Suppose, then, that I wish to occupy something
which another has already brought under his or her power. Relative to me, the establishment of the other's power
over the thing is temporally prior to possible occupancy by me. If I must respect the other's power over the thing just
because it already exists, then we may say more generally that persons are excluded from using something that,
relative to *587 them, has been occupied first by someone else. Relative to others, the person who occupies a thing
first in time is deemed to be in rightful exclusive possession of it.

Note that it is not the mere fact of temporal priority (which in itself is just empirical and normatively
contingent) that is the basis of the principle of first occupancy. Indeed, temporal priority is a purely relative feature
that attaches to occupancy only with the arrival of and the possible interaction with a second person. First occupancy
must be respected because it is an act which in itself signifies that someone's will has been realized consistently with
the standpoint of personality and all that this implies. Still, it is important to underline the relativity of any claim of
ownership. The standpoint of analysis is relational throughout, and one's entitlement to something is always
established as against certain others in relation to whom one must be first in occupation. In principle, then, it is
possible to have a claim of ownership vis-à-vis one person but not another.

Now acquisition through first occupancy is, it seems, inextricably affected by a variety of factors which are
normatively arbitrary: whether and how easily one is able to take possession of an external object depends upon the
nature of the object, the resistance offered by it, one's own abilities, the various means available to bring the object
under one's power, chance circumstances, and so forth. The question is, then, whether this dependence makes the
principle of first occupancy even partly determined by factors that are arbitrary from a moral point of view. Here
again, we must address the question from the standpoint of personality and the specific character of its freedom.
Certainly, the factors just mentioned can decide whether occupancy is in fact achieved, and they may be regarded as
morally arbitrary, if by this is meant that they are simply natural facts and thus in themselves neither just or unjust.
The issue of justice is, however, whether the principle of first occupancy responds to these contingencies so as to
make them normatively determining or even directly relevant in a way that is inconsistent with the freedom and
equality of persons. [FN117] This is what decides its fairness and validity from a moral point of view.

To begin, we should recall that persons do not have an innate right to the possession of external things (as
distinguished from their bodies). No one can claim against others an entitlement to a thing prior to or independent of
actually and effectively subordinating it. Since none has a pre-existing claim to any thing, first occupancy cannot
violate anyone's rights with respect to things. Moreover, as I have tried to emphasize, the normative significance of
occupancy is simply this: That a particular individual has exercised his or her will in such a way that, from the
standpoint of others, it is reasonable to conclude that a thing has effectively been subsumed under the will of an
individual consistent with the freedom and equality of personality. The will of the particular individual counts here
as completely representative of the will of everyone, and so must be treated as an end in itself. It is not on account of
an individual's particular features or circumstances but, on the contrary, because abstraction can be made *588 from
them, that the first to establish occupancy is deemed, relatively speaking, to be the true owner. This expresses the
freedom specific to personality, which consists in the will's complete indifference to such factors. It is crucial to
keep in mind that the proposed justification of ownership is not in the least that property satisfies any particular
interest or need however pressing, but only that it carries through the idea that things can be used and persons (who
are viewed as utterly identical instances of personality) have an equal capacity for ownership.

The point can be made in another way. Suppose that persons were to try to assert a superior claim to something,
relative to the first in occupancy. Some factor, such as their needs, relatively less advantaged position, or particular
purposes and interests, would presumably have to be invoked; in other words, some consideration, over and above
the bare abstract equality shared by all persons, would have to be made the basis of the claim. But this would
contradict the freedom of personality, which is exclusively constituted by the self's complete indifference to these
very factors. In short, this would incorporate into the grounding of the entitlement something that, from the
standpoint of personality, is arbitrary. The principle of first occupancy responds, then, to contingencies in the only
way consistent with the moral point of view when the latter is framed in terms of personality alone.

There is a further objection which I should like to address. Unlike the previous one, it does not appear, at least
at first blush, to depend on considerations that are morally irrelevant from the standpoint of personality. Thus, might
it not be possible to assert from the standpoint of abstract right a superior claim against the first in occupancy by
invoking the idea of abstract equality itself, without referring in any way to particular, normatively contingent
factors? The objection is that inasmuch as individuals are identically persons, there ought to be, at least prima facie,
an equal distribution of entitlements to things. On this view, the principle of right that governs original acquisition
should judge holdings against an initial benchmark of equality. But this seems to presuppose that, in virtue of being
persons, individuals have in some sense an innate or common claim to the actual use of things. In short, the
argument postulates a positive, strong connection between personality and property which holds that all individuals
must be, at least prima facie, equal actual owners if the freedom of personality is to be realized and respected.
[FN118]

Now, first of all, even if this strong connection between personality and property is granted, it does not follow
that necessarily individuals must have equal amounts of property. Given that the capacity of each for ownership is
framed in abstraction from all differentiating features, it is fully respected if all just have some property: the equal
capacity for *589 ownership is realized irrespective of how much or what is owned. [FN119] But not even this
more limited requirement can be established in abstract right. [FN120] As I have tried to explain, respect for the
equal status of persons does not, at this point in the constructivist analysis, require that persons actually have
property in order to realize their freedom. The standard of abstract equality and the purely negative notion of
obligation in abstract right do not support the positive, strong connection between person and property which the
more limited requirement and, even more, a benchmark of equal distribution presuppose. The absence of a basis in
abstract right for an *590 innate or a common claim to things is just the other side of its negative conception of
obligation and entitlement. Personality is-and indeed can only be-realized through individuals' respecting each
other's capacity for ownership which, unless exercised through an act of occupancy, does not confer any rights of
ownership over things.

The idea of entitlement that informs acquisition through first occupancy is instantiated in three ways, namely, in
taking possession, in use, and in alienation: I am entitled to subordinate a thing to my purposive capacity by taking
possession of it through first occupancy, to actualize this subordination by using the thing for a particular purpose,
and, finally, to give it up either unconditionally (as something I choose to abandon and to make ownerless) or
conditionally (as something I choose to transfer to another in order that it may become his or hers). The exercise of
each of these powers represents nothing more than a single agent's permissible act of will with respect to a possible
object of ownership in accordance with the principle of first occupancy; nothing is presupposed here save the right
of personality to subordinate things to one's purposes. All three powers are included, therefore, under the right of
ownership.

Certain writers have contended, however, that the power to alienate is not part of the individual's inherent
capacity for ownership under abstract right. [FN121] In reply, abstract right places no limit on the power to
alienate as such, just as it does not qualify the capacity for ownership itself. To prevent misunderstanding, it must
be emphasized that the power to alienate, like the power to take possession, is considered here solely as part of
abstract right. Thus, alienation involves an act of will with respect to a thing that has already been rightfully brought
under one's power, the meaning of such an act of will being determined from the standpoint of relation to another.
[FN122] If abstract right were to limit the power to alienate, the limitation would have to be premised on either the
inconceivability or the impermissibility of disposing of things in this way, with both grounds being established on
the *591 basis of the requirement to respect persons' equal capacity to use things. Consider first the intelligibility of
the power to alienate. Alienation merely postulates a single person's externally manifested decision to dispose of a
thing in accordance with his or her purposes, and this is all that is presupposed by the analysis of acquisition through
first occupancy. Thus the intelligibility of the power to alienate must be the same as that of abstract right itself. Nor
can a power to alienate be impermissible. It would be impermissible if individuals were positively obliged to hold on
to their property or if the alienation of things, as such, constituted an injury to the equal capacity for ownership of
others. But abstract right's requirement is only negative, with individuals being under no duty to acquire or to keep
property, and, taken by itself, the right to abandon or to transfer something that was itself acquired through first
occupancy, that is, consistently with respect for abstract equality, cannot possibly constitute a violation of the equal
right of others. Being conceivable and permissible from the standpoint of abstract right, an inherently unrestricted
power to alienate is contained in the capacity for ownership.

I conclude, then, that the principle of first occupancy is consistent with respect for personality. It is justified
from a moral point of view. With this in mind, I now want to make explicit a certain implication of the requirement
to respect the abstract equality of persons. In this way, I hope to show why we need a third principle of right, one
that governs "derivative" acquisition or acquisition from another, to complete the account of how persons may
rightfully bring things under their power in keeping with the requirements of abstract right. Whereas the principle of
first occupancy represents the basis form of what Nozick calls "the principle of justice in acquisition," this third
principle defines what he refers to as "the principle of justice in transfer."

C. Derivative Acquisition
The abstract equality of persons, we saw, consists in the equal right of every person to subordinate things to
uses. My assertion of a right over a thing thus necessarily implies my acknowledging a duty to refrain from using
what others have themselves acquired through first occupancy. This reference to others is not something merely
added to the analysis of my right, but rather is contained in it, as essential to its fundamental normative meaning. For
I can have a right only insofar as my will is something inherently universal, and, when the free will is personality, its
universality is expressed in terms of abstract equality of all persons. However, although the principle of first
occupancy makes reference to others, it does so in a way that is merely negative and implicit. The principle holds
that as long as a thing is not yet owned by anyone else, I can acquire it through my act alone. Thus, this principle
does not display on its face, as it were, the recognition of another's right as an explicit and necessary condition of
acquisition itself. There is another way to express this same point. While the principle of first occupancy explains
how a person is entitled to impose a duty on others to respect his or her right to a thing and thus while it envisages a
normative effect that is framed in terms of relation to another, this requirement is not itself explicitly and necessarily
relational: it postulates *592 merely the act of will of a single person with respect to a presently unowned thing;
acquisition is not effected through and with the consent of another. But, as I have explained, abstract right entails a
conception of obligation and entitlement that is inherently relational.

Accordingly, we now take a third and final step in the construction of a conception of acquisition, one that
enshrines the acknowledgment of another's right as an explicit and necessary condition of acquiring something of
one's own. Since, in abstract right, the acknowledgment of another's right can only be in respect of something that is
already the other's, the third mode of acquisition is one in which I acquire something that is already another's and in
a manner that recognizes the latter's capacity for ownership; therefore, not merely by means of my will, but with the
latter's consent and through his or her act of will as well. This third mode is derivative acquisition. In contrast to first
acquisition, one person's entitlement here is derived from and presupposes another's.

The distinctive nature of derivative acquisition lies in its being a mode of acquisition that is established by, and
wholly consists in, a voluntary interaction between two persons. Since the conception of interaction we are seeking
to elucidate is normative, not empirical, and, at this stage, the moral point of view is framed in terms of abstract
right, the question is this: What features characterize voluntary interaction when it is represented as a mode of
acquisition that exhibits free will; that is, when it is analysed as a relation of right between persons who are
conceived solely in terms of an equal capacity for ownership? For the purposes of this Essay, I shall try to answer
this question at a fairly high level of abstraction and then only in part. [FN123] Simply stated, if voluntary
interaction is to constitute a mode of acquisition that reflects abstract right, it must be conceived as a transfer of
ownership between two persons that respects each party's equal capacity for ownership. The first task, then, is to
identify the principle that states the fundamental condition of the possibility of a transfer of ownership.

To begin, a transfer of ownership must comprise two acts of will, each externally manifested in relation to the
other: First, the will of one that alienates and thereby voluntarily relinquishes ownership over a thing; and second,
the will of another that appropriates and thereby acquires ownership over it. Without the first, there can only be
wrongful deprivation; without the second, there can merely be a relinquishment but not an acquisition of ownership.
And given that, in abstract right, ownership is necessarily individual in character, a transfer of ownership is, on
analysis, always between two-and only two-persons: this is the fundamental unit, and relations among persons must
be reducible to these terms if they are to be construed as transfers of ownership.

The powers of alienation and appropriation are, we have seen, contained in the right of first acquisition by first
occupancy. Viewed as aspects of the right of first acquisition and as apportioned between two persons, however,
these powers can be exercised only as separate and *593 temporally successive acts: by my single act of will and
consistently with the principle of first occupancy, I can only appropriate something that is already in a condition of
being ownerless and that, therefore, has already been abandoned by another. Correspondingly, alienation here
merely relinquishes ownership and does not transfer it from one person to another. If we are to elucidate a
conception of a transfer of ownership between persons that is irreducible to first acquisition, we will have to
conceive of the two acts of will as related in a different way.

The fundamental condition of the possibility of a transfer of ownership is this: the thing must be appropriated-
or, conversely, alienated-as already the property of another, that is, in a state of being owned by the other. For if, in
the conceptualization of a transfer of ownership, ownership of the object is interrupted in any way, the object must
instantly be represented as ownerless, and it can then only be appropriated in that condition. In other words, it can be
acquired through first occupancy but not derivatively, through another. And for the same reason, the parties' acts
must not be represented, as they are in the analysis of first acquisition, as separate and successive, but rather as
genuinely united so that they belong to a common will, to use Kant's term. It follows that my alienation and your
appropriation of the thing must be conceived as being at the same time. There must be continuity, in the sense that at
no point in the analysis of the interaction can the thing be something alienated by one without its being
simultaneously something appropriated by the other. The idea of a transfer of ownership thus postulates that the
thing transferred be represented as a property that is owned by both parties at the same time. The law of continuity
(lex continui), as Kant referred to it, states the fundamental condition of the conceivability of a transfer of ownership
as such. [FN124]

Because the law of continuity represents the parties as simultaneously alienating and appropriating an identical
property with the consent and as the individual property of both, the relation between them wholly consists in their
mutual recognition of one other as each having a capacity for ownership. Mutual recognition is thus necessarily and,
as it were, objectively entailed by the law of continuity. In this connection, it should be noted that, consistent with
the negative and external conception of obligation in abstract right, the parties are not obliged to adopt the
recognition of each other as a particular end. Whether or not they subjectively and conscientiously view one other in
this way is a matter of complete indifference, so far as abstract right is concerned. Here then, the question is simply
this: Have the parties publicly or externally acted in a manner that, reasonably, can be interpreted as being voluntary,
where "voluntary" means "externally manifesting the requisite wills to alienate and to appropriate in accordance
with the law of continuity"? If they have done so, then, necessarily, there has been mutual recognition, irrespective
of what either party actually and subjectively has willed with respect to both means and ends.
 The necessity of conceiving a transfer of ownership in terms of continuity raises, however, a basic difficulty.
For if we view the interaction *594 between the parties as a particular going-on in time and space (which it most
certainly is), it does not seem possible to characterize it in such terms. Let me explain. Conceived as a particular
going-on (that is, as involving particular acts of choice by particular individuals regarding particular objects), the
interaction has the following features. First, it consists of two acts of choice: one person gives up and another
obtains possession of a particular object. Neither act alone is sufficient to establish a voluntary interaction. Second,
these acts are intelligible as efforts to obtain wished-for substantive satisfactions of individual wants and purposes.
And unless persons' respective wants are in fact different, they will have no reason to transact. In an exchange, for
instance, each individual, in the light of his or her particular purposes, must want what the other has more than what
he or she already has, and each must assess the desirableness of possessing the particular object differently from the
other. Third, if acts of choice are to function as aspects of an interaction, they must be mutually related. So the
seeking of substantive satisfactions by one must be in response to another's conditional offer of satisfaction or
threatened refusal to meet a wished-for satisfaction. And therefore, as particular goings-on in time, such mutually-
related expressions of substantive wants necessarily happen in temporal succession, as separate "offers" and
"acceptances" of satisfactions obtainable through interaction with others: when one is, the other is thus either not yet
or no longer. [FN125] Similarly, possession of the particular objects transferred is also successive in time. One party
has the object only when the other is either not yet or no longer in possession of it; they cannot both have individual
exclusive ownership over the same particular thing at the same time.

Thus, interaction cannot be represented as embodying continuity when its interactional character is conceived
and framed, even in part, in terms of particularity. Viewed under this aspect, interaction must be characterized in a
way that is directly the opposite of what the law of continuity requires. Whereas continuity postulates unity and
simultaneity, the aspect of particularity implies temporally successive and qualitatively different acts of choice as
well as discontinuity in the parties' possession of the object(s) transferred.

It would seem to follow, then, that a condition of the possibility of continuity is that voluntary interaction be
conceived in complete abstraction from the aspects of particularity and temporalness as such. Accordingly, the
characterization of the parties' acts and possession as simultaneous should not be understood as referring to a
temporal dimension. On the contrary, conceiving them in terms of simultaneity is a mode of representing acts of will
(which as mutually-related particular goings-on are necessarily successive in time) as absolutely co-present in
complete abstraction from temporal conditions. In connection with the law of continuity, the phrase "at the *595
same time" is thus to be given a non-temporal sense. [FN126] And this does not mean, it should be emphasized, that
the elucidation of interaction in the light of continuity somehow denies the existence of interaction's particular
aspect. A transfer of ownership-like every mode of free will-cannot have real existence save in and through the
medium of particular acts of will. For there to be a transfer of ownership, interaction, and therefore particular acts of
will that are mutually-related and temporally successive, must always be presupposed. But this presupposition is
very different from, and does not necessarily imply, the further conclusion that a transfer of ownership, which is a
normative category, is itself constituted by, or consists in, acts of will as viewed under the aspect of particularity.
For this would be to attribute to the particular as such intrinsic normative validity, which it cannot have in abstract
right. In short, to say that voluntary interaction must be conceived in abstraction from its particular aspect if it is to
be intelligible as a transfer of ownership implies only this: That the normative significance of any aspect of
interaction in the elucidation of a transfer of ownership lies, not in its being this or that particular aspect as such, but
rather in its being a specific mode in which the law of continuity-and whatever it entails-can be expressed.

That voluntary interaction must be conceived in complete abstraction from the aspect of particularity states a
fundamental condition of the intelligibility of interaction as a transfer of ownership in accordance with continuity.
Here, therefore, is a mode of acquisition that displays on its face, as it were, abstract right's independence from
determination by particularity. The conceptualization of interaction in this way thus presupposes and embodies the
will's negative freedom at the standpoint of personality. What remains, then, is to determine how the two basic
elements of a transfer of ownership, namely, the acts of will and the thing(s) transferred, are to be construed in the
light of the law of continuity. In this Essay, I shall consider this question only with respect to the second element.

The law of continuity, I have said, implies that the thing transferred be represented as a property owned by both
parties at the same time. However, as previously discussed, insofar as the thing is taken in its particularity, that is, as
a particular useful object with distinctive particular features, the parties' possession of it must be successive.
Consistent with the idea of continuity, we must therefore conceive the property that is to be owned simultaneously
by both parties in abstraction from the thing's particular qualitative features, and not at all in terms of its specific
usefulness in relation to individual needs. Yet, we may ask, what property *596 can both parties own at the same
time when, as I have tried to show, the conception of ownership envisaged by abstract right is necessarily individual
and exclusive in character?

The property we are trying to identify is something that must be embodied in, and can only be expressed
through, a transfer of particular things between persons. Moreover, while it is something that can be the object of
exclusive individual ownership, it must not be identified with any single thing in respect of its particularity.

This property can only be value. In its elementary form, value is expressed through two qualitatively different
things being put in relation with each other, and they are put into such a relation through a transfer of ownership.
The value of a thing can be expressed, not through something identical to it, but only in terms of something
qualitatively different from it. Yet, at the same time, value is always stated by a proportion that is framed in purely
quantitative terms: a given quantity of one thing has the same (amount of) value as so much of another thing. Value
is expressed, then, in a relation that both presupposes qualitatively different things and yet represents them in
complete abstraction from their particularity. For example, irrespective of their qualitative differences, one horse is
the equivalent of and is replaceable by, say, two cows; in respect of their worth, there is no distinction between
them. [FN127]

Value is thus neither a natural nor a particular property that inheres in things as they are given to the will.
Rather, value expresses a common or, more exactly, an abstractly universal aspect in terms of which qualitatively
different things are conceived when they are represented as objects of free choice in a transfer of ownership between
persons. This common aspect is that things are identically "somethings" that can be appropriated by free will. They
count merely as instances of objectified free activity. [FN128] In other words, as values, objects are posited in
accordance with their essential normative meaning: they are just things, which, being different from personality, can
be used merely as means. Their significance as values does not lie in their being particular objects of a certain kind
that can satisfy particular needs but in their serving as modes of exhibiting in the here and now what the freedom of
personality entails.

Continuity requires that it be possible to represent the parties to a transfer of ownership as owners of value at
the same time. But further, we have seen that the law of continuity implies that the parties are conceptualized as
having ownership of the same property at the same time. Because, as value, a thing's qualitative features are
translated into purely quantitative terms, this aspect of continuity can only be met by representing the parties as
having quantitatively equal values throughout their relation. Each party, in alienating his or her thing, must remain
an owner of its quantitative equivalent. Continuity can be satisfied, then, if, but only if, a party's *597 capacity to
acquire from another consists in an equal right to have at the end of interaction the same amount of value that was
owned by him or her at its start. The requirement of equivalence belongs to the intelligibility of a transfer of
ownership as such; it articulates a fundamental condition of the possibility of derivative acquisition. [FN129] But
this is nothing less than the requirement of arithmetic equality itself, as first set forth by Aristotle. Abstract right has
yielded the sort of nondistributive account of equivalence in exchange which Aristotle's discussion needs but does
not itself provide.

To avoid misunderstanding the nature and the implications of the requirement of equivalence, one should keep
in mind that it has been derived as part of abstract right, and that therefore it presupposes nothing more than its
negative conception of obligation. There is accordingly no positive duty to transact, or to assist others to transact, on
terms of equivalence. One may always choose to give up or to risk giving up one's own for less than its value. In
keeping with the purely permissive character of the conception of entitlement in abstract right, what persons have is
only an equal right, in the sense of an equal (juridical) power or capacity, to obtain an equivalent, and they can
voluntarily waive or restrict this right in a particular or otherwise limited instance. [FN130] A decision to waive or
limit this right must be made by the owner and not by someone else, although, consistent with the external and
relational character of abstract right, the interpretation of the owner's will is always from a public standpoint. Absent
such a decision, a transaction that does not embody equivalence cannot qualify as a transfer of ownership, even
though physical possession of the things may have changed hands: the physical transfer will be set aside and the
parties will be returned to their positions prior to transacting. A rightful transfer of possession is distinguished from
a merely physical transfer of possession just insofar as it respects the parties' equal right to obtain an equivalent.

The right to equivalence is a supreme regulative principle, a benchmark against which the intelligibility and the
validity of voluntary interactions are to be assessed. Given that persons may voluntarily waive or restrict this right in
a particular instance, there are two basic categories of transfers of ownership: "exchange," in which there is a mutual
transfer of things of equal value; and "gift," where one party can be reasonably viewed as intending the enrichment
of the other at his or her own expense. Accordingly, unless a purported transfer of ownership can reasonably be
construed either as an exchange or as a gift, it is inconsistent with respect for the parties' abstract equality and does
not generate any entitlement or obligation. It should be mentioned in passing that I suppose here that both *598
exchange and gift exhibit the same basic structure that is implied by a transfer of ownership. Thus, both are transfers
of ownership constituted by mutually related acts of will (of alienation and appropriation) which are to be construed
in complete abstraction from particularity and as comprising a common will. Both must also satisfy the same
requirement of continuity with respect to the conceptualization of the property transferred. While, of course, a gift
does not embody equivalence in fact, it nevertheless completely accords with the principle of equivalence as
presented here. The parties to a gift fully respect each other's capacity to obtain an equivalent, as this right is
interpreted in abstract right. A gift may, therefore, be defined as a voluntary transaction in which two persons effect
through their combined wills a transfer of ownership that may reasonably and fairly be viewed as involving a
decision by one to waive or limit in some way his or her right to an equivalent. As with an exchange, the interaction
is assessed solely from the standpoint of the regulative principle of equivalence. Indeed, but for this standpoint, there
would be no intelligible juridical basis for making the distinction between gift and exchange in the first place.
[FN131]

The requirement of equivalence is framed in a way that reflects the merely negative conception of entitlement
and obligation in abstract right. In deriving it, we have not invoked any distributive considerations of background
justice. The principle of equivalence articulates a conception of fairness that is specifically and wholly transactional
in character. As a requirement of derivative acquisition, it stipulates only that individuals respect each other's equal
right to retain the value of what is already theirs, whether this property belongs to them in virtue of their innate right
to bodily integrity or by first acquisition through first occupancy. Thus, it does not aim redress differences in
bargaining power or inequalities in holding as such, nor does it seek to ensure the satisfaction of needs, however
basic. Factors such as these can be at most indirectly relevant. For instance, where an exchange of non-equivalents
can only be explained by reference to a party's ignorance, mistake, or necessity, it may not be reasonable to view his
or her relative impoverishment as an intended gift or as the materialization of an assumption of the risk of such a
loss, and so one might conclude that the transaction does not satisfy the requirement of equivalence. But, in
themselves, such factors do not raise a question of right which the principle of equivalence is framed to address. The
requirement of equivalence is purely juridical and nondistributive in conception. [FN132]

*599 Finally, as for the measure of equivalence, this much at least should be mentioned here. [FN133] The
determination of equivalence cannot be made by the parties' particular preferences or interests as such. First,
equivalence cannot be explicated on this basis. As previously discussed, if the focus is on the parties' preferences,
we must assume that they have transacted on the basis of different preferences and different perceptions of the
usefulness of the goods to be exchanged: unequal valuation rather than equivalence would be a presupposition of
transacting. Second, reference to the parties' particular preferences as the ground of value is categorially
incompatible with the law of continuity, which represents interaction in complete abstraction from particularity. By
invoking the aspect of particularity in this way, one can neither ground nor refute the requirement of equivalence:
one only introduces into the analysis of derivative acquisition a factor that has no standing in abstract right.
Accordingly, the mere fact that parties may have agreed to certain terms without duress, fraud or misrepresentation,
and thus may be said, in a certain sense, to have wanted a particular transaction, does not necessarily imply that the
terms of their agreement embody equivalence. [FN134]

With the derivation of equivalence as a principle of right that governs, and that is indeed intrinsic to, a transfer
of ownership, we arrive at a mode of acquisition that is relational in accordance with the conception of entitlement
in abstract right and that, as such, embodies a normative requirement of arithmetic equality. [FN135]
Notwithstanding their particular *600 aspect, individuals and things are now explicitly posited in the form of
abstract equality: in the value relation, individuals count simply and identically, and are necessarily recognized, as
persons having an equal capacity for ownership; things figure merely and indifferently as something that can be used
by persons. The free will is given specificity in the here and now in a manner that fully reflects the standpoint of
abstract equality.

For the purposes of this Essay, the discussion of equivalence in exchange brings to a close the elaboration of
first principles of right for transactions. The principles respecting bodily integrity, first acquisition, and derivative
acquisition together provide, I believe, an integrated and a complete answer to the question of how something can be
brought under one's power consistently with abstract right. From the standpoint of abstract right, bodily integrity
represents the most elementary mode of right and it alone is innate. As discussed, all other parts of abstract right
presuppose it. Given the absence of an innate right to things (as distinguished from one's own body), the problem
immediately arises as to how things can be rightfully acquired. Because things are res nullius prior to being
acquired, there must, to begin, be a principle governing acquisition of unowned things. That principle is first
occupancy. In virtue of it, one person acting alone can acquire exclusive ownership. But abstract is inherently
relational-the fundamental unit of analysis being a relation between two persons, each of whom has an equal
capacity for ownership. To be complete, the account of acquisition needs a principle that incorporates this
conception of relation into the very basis of acquisition. Derivative acquisition, which is effected by the combined
acts of two persons in accordance with the law of continuity, meets this requirement. And through the principle of
equivalence the form of arithmetic equality is enshrined. Since this conception of derivative acquisition is structured
directly and explicitly in the very terms of abstract right, it completes the account of the basic modes of acquisition
that can be constructed from the standpoint of personality.

*601 These three principles define, then, the different ways in which something can be one's own for the
purposes of corrective justice. They are rooted in and reflect nothing save bare personality and abstract right. Here
then is a conception of one's own explicated in terms that are specifically fitted for corrective justice. At no point in
the argument for these principles have distributive considerations of any kind been introduced. They simply have no
basis in abstract right. All other principles for transactions, both voluntary and involuntary, ultimately presuppose
and refer back to these elementary forms. The latter are thus highest order regulative principles, providing a basic
groundwork for the analysis of human relations in terms of arithmetic equality.

IV. THE RELATION BETWEEN CORRECTIVE JUSTICE AND DISTRIBUTIVE JUSTICE

Thus far, I have tried to suggest a plausible foundation for corrective justice and to explain how suitable first
principles may be worked out on this basis. In this Part, I wish to consider the relation between this conception of
corrective justice and distributive justice. Certainly a fully adequate treatment of this question presupposes that one
has elucidated theories of both of justice on their own terms-something that goes well beyond the aims and scope of
the present Essay. Nevertheless, as I hope to show, the constructivist account of corrective justice does shed light on
this issue. Indeed, it may help settle a basic question for contemporary political theory, one that has not yet been
satisfactorily resolved. I can afford to be briefer here, since for the most part I shall simply be trying to bring out
certain implications that seem to follow from the arguments already presented.

Entitlement theory, certain leading writers have contended, rules out egalitarian liberal conceptions of
distributive justice, such as Rawls's, because such conceptions, they argue, justify principles that are incompatible
with individual entitlements. It is important to see whether this is indeed the case, at least on the sort of
constructivist approach that I have taken in this Essay. Accordingly, I shall address the question of the relation
between corrective and distributive justice in the following terms: Do the notions of person and right that underlie
corrective justice exclude Rawls's political conception of justice (with its two principles) or, on the contrary, can
they be integrated as distinct parts of a whole? This particular comparison should prove especially illuminating. The
conception of corrective justice that I have presented here is strictly nondistributive throughout, unlike the
entitlement theory proposed by Nozick. That is why I have called this conception a pure entitlement theory. In this
respect, it is as uncompromisingly nondistributive as any. For its part, Rawls's theory is surely the most carefully
and systematically worked out contemporary account of distributive justice. It articulates a substantively egalitarian
conception of distributive justice that entails requirements of background justice going well beyond anything that
might possibly be justified on the basis of an entitlement theory. If, after all, it turns out that there is a pure
entitlement conception of justice that does not rule out Rawls's theory, especially the difference principle, this has
fundamental implications for the claims of entitlement theorists. Even more importantly, this conclusion *602 would
be significant in virtue of its bearing on the possibility of developing a unified account of corrective and distributive
justice. To my knowledge, this has not yet been undertaken, let alone achieved, by contemporary writers, although it
is found systematically developed in the work of certain great philosophers of the past, such as Hegel and Kant for
example. Because Rawls provides a constructivist justification of his theory, the possibility of a unified account
along constructivist lines naturally suggests itself. The present discussion is intended as a tentative and a necessarily
limited contribution to this much larger goal.

I begin Part IV by presenting Rawls's important claim about the primacy of what he calls the "basic structure of
society" in what he refers to as a Kantian conception of justice. This, we shall see, directly raises the question of the
relation between distributive and corrective justice. A chief aim of this Part is to determine whether this claim is
consistent with the constructivist account of corrective justice and whatever it implies. The answer is worked out in
three steps. First, I argue that on a constructivist approach the principles of abstract right must be given lexical
priority vis-à-vis other parts of justice, in particular distributive justice. The main question then becomes: Is a
substantively egalitarian theory of distributive justice such as Rawls's compatible with the lexical priority of abstract
right? In a second step, I try to show that notwithstanding its being lexically first, abstract right cannot lay claim to
the whole of the domain of justice. More specifically, abstract right gives rise to certain basic difficulties that
directly challenge the claim that, taken by itself, it is complete and self-sufficient. Beginning with abstract right-and
it alone-I explain why it is necessary to go beyond it; why, in other words, there must be other parts of justice. In the
third step, I investigate what constraints, if any, abstract right imposes on these other parts of justice in virtue of its
lexical priority. I conclude that while it does set up certain significant constraints, these do not rule out a requirement
such as Rawls's difference principle. In particular, the division of labour between principles of background justice
and principles for transactions proposed by Rawls is compatible with the priority of abstract right. This conclusion
settles, or at least helps to settle, the challenge raised by contemporary entitlement theorists. I also suggest that the
priority of abstract right positively requires that something like Rawls's first principle, enumerating a list of equal
basic liberties, be accorded lexical priority within a conception of distributive justice. In short, the claim is that given
the lexical priority of pure entitlement principles of justice, not only is a substantively egalitarian conception of
distributive justice possible, but, in addition, a liberal conception of distributive justice is necessary.

A final remark to prevent misunderstanding. It should be kept in mind that the following discussion about the
relation between corrective and distributive justice concerns the connection between abstract right and distributive
justice only; that is, corrective justice is treated throughout solely in pre-institutional terms. Thus it does not purport
to present the whole analysis. Nevertheless, as I hope to show, the conclusions reached constitute the first and
indispensable part of such an account, constraining whatever else is to be said about this question.

To begin, let me state what seems to be the main idea in Rawls's understanding of the primacy of the basic
structure and then summarize *603 the two principal kinds of reasons which he advances to support the claim.
[FN136]

The main idea seems to be this. The principles of right that are meant to govern social life are those which
would be chosen by persons as being expressive of their free and equal moral nature, and the principles chosen in
this way would consist of different sets of principles, each set being framed to apply to a distinct and corresponding
normative subject (for example, to the basic structure itself, to transactions between individuals, or to associations
within the basic structure). Thus, in contrast with utilitarian theory, the Kantian approach does not presuppose that
there must be a single, general principle that is meant to apply indifferently to all forms of social relation. Moreover,
the construction of these different sets of principles takes place sequentially: free and equal moral persons are to find
an appropriate sequence of kinds of normative subjects, and they are to proceed through this sequence with the
understanding that the principles of each later agreement are to be subordinate to those of all earlier agreements.
Principles that free and equal moral persons frame first have what Rawls calls "regulative primacy" relative to
whatever other principles they choose.

The basic thought here is that the sequence is to be established in the light of a certain conception of the person:
the sequence is both generated and understood from the standpoint of free and equal persons. Thus, the sequence is
not to be viewed as a temporal ordering; rather, it is one that is essentially conceptual and normative, consisting in a
hierarchy of regulative principles that is entailed by and rooted in this idea of the person. I take it that, on Rawls's
view, the fact that a set of principles for a particular normative subject would be chosen first means something more
definite than that it would be viewed simply as very important or urgent, given the interests of free and equal
persons; nor does it necessarily signify that the set is the most comprehensive in scope and application. Rather, the
primacy of, say, the basic structure implies that if persons are to express their free and equal nature, they must regard
the principles governing the basic structure as properly constraining whatever other principles can be chosen by
them for other normative subjects. More exactly, Rawls's claim concerning the primacy of the basic structure entails,
first, that the basic structure has a special role (relating to background justice) and, second, that it is reasonable to
seek special principles to regulate it. These principles are meant to establish just background conditions which set
the framework for, and constrain the operation of, the distinct principles that are supposed to apply to other subjects,
such as to voluntary associations and private transactions between individuals. This view is to be contrasted with
both utilitarianism and libertarian doctrine which have no place for a special theory of justice for the basic structure
or for a division labour between principles governing the basic structure and those regulating other subjects.

*604 Rawls's thesis must be supported, then, by reasons that explain why persons, who choose principles that
express a conception of themselves as free and equal, would agree to give supreme regulative primacy to principles
for the basic structure, in the sense just discussed. He suggests two main kinds of reasons.

First, Rawls considers an alternative and competing view of the appropriate first agreement, and suggests why it
cannot exclude reference to the very considerations that would lead persons to view the basic structure as the
primary subject of justice. This alternative conception, which informs libertarian theory for example, holds that
social relations should develop over time in accordance with free agreements fairly arrived at and fully honoured.
But if these agreements are to be indeed fairly arrived at and freely entered into, they must be made under certain
conditions. We need, then, criteria and standards for the determination of the fairness of these background
conditions. It is here that Rawls advances a claim which is crucial to his argument for the primacy of the basic
structure: from "a social point view," [FN137] he argues, we cannot say, by looking at transactions viewed in
abstraction from the features of the basic structure, whether the agreements reached are just and fair. Thus, we
cannot tell whether an agreement is fair without ascertaining the fairness of the antecedent distribution of income
and wealth, the structure of bargaining power, and so forth, where such considerations go beyond what is entailed by
the rules directly governing transactions, such as the rules relating to fraud, duress, and the like. The thought here is
that, taken by themselves, the rules that apply to transactions directly are not sufficient to establish and to support
the needed fair background conditions. Indeed, the tendency over time is for these background conditions to be
eroded, even when individuals respect the rules directly relating to transactions. Therefore we need special
institutions to establish and to maintain background justice as well as a special conception of justice to settle how
these institutions are to be set up. This is the role of institutions belonging to the basic structure and of the principles
of justice that are framed for it. In this way, we naturally arrive at a division of labour between two kinds of social
rules, those governing the basic structure and those applying directly to private transactions and other subjects
within the basic structure. Background justice is achieved through the operation of requirements that may be
complied with in a way that enables people to order their affairs and enter freely into transactions with each other on
a basis of individually determined mutual advantage, secure in the knowledge that background justice will be
preserved over time.

Rawls's first kind of reason for the primacy of the basic structure is, then, that if we begin with the idea that
persons' holdings should depend only on the results of individual transactions, we must invoke certain
considerations of fairness to justify those agreements; but these considerations ineluctably relate to the basic
structure and go beyond the principles directly governing transactions, viewed as a distinct sort of normative subject.

*605 The second kind of reason may be put in the following way. The basic structure establishes different
starting points for individuals, and these starting points are affected by social, natural, and accidental contingencies,
which, from a moral point of view, are certainly arbitrary. These different starting positions may certainly generate
pervasive and fundamental inequalities in the life-prospects of individuals if they are allowed to work themselves
out. A Kantian conception of justice focuses on these inequalities in the basic structure in the conviction that they
are the most fundamental ones. Hence the basic structure is taken as the primary subject of justice.

There are two ways one can view Rawls's claim concerning the primacy of the basic structure. On a first
interpretation, we understand Rawls's claim as made solely from the point of view of distributive justice itself and as
presupposing a conception of social relations as a fair system of cooperation between free and equal persons.
[FN138] It is intended to settle a question vis-à-vis other competing conceptions of distributive justice and, more
particularly, to challenge the claim that, consistent with respect for the rights of individuals, there cannot or need not
be special principles of justice for the basic structure. A second interpretation sees Rawls's claim as being made
from the standpoint of justice as such, and not merely from that of distributive justice. On this view, free and equal
persons would not, first of all, choose (unconstrained) first principles of right that do not take into account
considerations of background justice and that are wholly indifferent to the inequalities generated by different starting
positions in the basic structure. Most fundamentally, it would hold that ab initio free and equal persons must
evaluate their social relations in the light of the idea of society as a fair system of social cooperation. [FN139]

On either or both of these interpretations, is Rawls's thesis concerning the basic structure consistent with the
constructivist account of corrective justice set out in this Essay? It is here that we must address the issue of the
possible lexical priority of abstract right. For both interpretations of Rawls's claim raise this question. The second
claim, for instance, seems to imply that it is not abstract right with its principles for transactions but rather principles
of background justice that are to have lexical priority. And even on the more circumscribed first interpretation, it
could be that a theory which gives the basic structure primacy in the sense suggested by Rawls would not be the sort
of distributive conception that is most compatible with *606 the lexical priority of abstract right, should we conclude
that the latter ought to be viewed in this way. So we cannot avoid this question.

In Part II, I tried to explain why personality and abstract right are the minimally presupposed, the most
elementary conceptions of person and obligation in a constructivist account of normativity. Every form of
conceiving agents as having a capacity for unconditioned self-determination must, in the order of thinking, begin
with the condition sine qua non of their self-determination, which, I suggested, is that they are not inevitably tied to
anything particular as a moral ground for choosing. I said that personality and abstract right are utterly simple
because they do not involve anything but the bare capacity to be independent from everything in general, whereas
other forms of person and obligation incorporate this and, in addition, something else. This relation between
personality and abstract right on the one hand, and other forms of the conception of the person as free and equal with
their corresponding notions of right may now be further specified as one of lexical priority in an ordered sequence.
[FN140] The reason is this. Because both personality and abstract right are specifications of free will they cannot be
represented as mere means to something else. Whatever they essentially entail, namely certain principles of right,
must be respected as an end in itself. Supposing, then, that there are indeed other forms of the person as free and
equal with their corresponding notions of obligation, these must preserve whatever abstract right requires as a
condition of their own validity. Because, as I have argued, personality and abstract right must be minimally
presupposed in any representation of unconditionally free agency, all other sets of principles which are rooted in
more complex conceptions of person and right must be framed consistently with the requirements of abstract right.
They are to be worked out on the assumption that abstract right is fully satisfied. What these other principles can
entail is constrained by what abstract right requires. Hence its lexical priority in a constructivist account of the
moral.

*607 If correct, this argument establishes that the first conception of justice and the first principles of right
(where "first" mns unconstrained by any prior conceptions or principles of right, as the case may be) which persons
would adopt as expressive of their free and equal moral nature must be altogether independent of distributive
considerations. The justification of abstract right and of its principles of acquisition does not depend in the least on
the prior satisfaction of any distributive requirements of background justice; and when the basis of right is
personality alone, right's indifference to the morally arbitrary inequalities in starting positions-as reflected, say, in
abstract right's purely negative conception of obligation-is the only way of responding to these inequalities that does
not make them morally determining. Or, put in other terms, at this stage in the constructivist analysis, any other
response would fail to exhibit persons as independent from particularity and, therefore, as free and fully accountable.
Moreover, while in abstract right relation to another is postulated as the basic unit of analysis, social relations are not
viewed in terms of the normative idea of society as a fair system of cooperation. For, on a constructivist approach,
the normative relevance of this idea would seem to presuppose at least that the satisfaction of needs through
relations of social interdependence has been explicated as part of freedom; but this would take us far beyond the
standpoint of abstract right. [FN141] In abstract right, the idea of social relation signifies only a possible interaction
between two persons viewed merely as abstractly equal and mutually independent subjects with a bare capacity for
ownership. Relations among persons with respect to things (produced or otherwise) are analysed solely on the basis
of the first principles of acquisition and whatever these imply.
 On a constructivist view, therefore, corrective justice must be autonomous in the following sense: On the one
hand, the derivation as well as the validity of its conception of obligation and of its principles of right are absolutely
unconstrained or unconditioned by any other normative category; on the other hand, every other set of principles
must respect abstract right as a condition of its own validity. Abstract right, alone among normative categories, is
not only distinct but being first and unconstrained, it is also unqualifiedly autonomous. And, on this basis, we say
that the absolutely first subject of justice must be transactions that are governed by this purely nondistributive
conception of right.

If abstract right is lexically prior and autonomous in the way just discussed, Rawls's claim about the primacy of
the basic structure must be restricted to the domain of distributive or political justice. At least, it cannot constrain in
any way the elucidation and validation of abstract right from a moral point of view. On the contrary, the primacy of
the basic structure must be justified by reasons that are consistent with abstract right's priority. Viewed, then, as a
claim that is made within distributive justice, the thesis can be put in the following terms: Supposing the conception
of the free and equal person (as specified in terms of the two moral powers) [FN142] as well as the *608 idea of
society as a fair system of cooperation, the basic structure must be singled out as a subject of justice in its own right
and distinctive principles of justice, which set the terms of background justice, must be found for it, at least if we are
to exclude considerations that seem arbitrary from a moral point of view when elaborating governing principles for
social and political life. To validate this thesis, one must establish the following three things: First, that relative to
other views that deny the distinctive role and significance of the basic structure (such as libertarian theories which
hold that transactions are the ultimate and sole kind of social relation for the purposes of justice), a view which takes
the basic structure as primary reflects more adequately the particular conceptions of person and of society that are
presupposed; second, that these conceptions of person and of society can be shown to have a distinct but essential
place in the sequence of normative categories that embodies the underlying idea of responsible agency; and third,
that the distributive principles establishing background justice are fully compatible with both the requirements and
the basis of abstract right. Rawls has provided a systematic defense of the first two claims. To my knowledge, the
third has yet to be discussed. The following brief and less than systematic remarks will, I hope, contribute to settling
it.

Is the primacy of the basic structure compatible with the priority of abstract right? To answer this question, one
must first of all show that the priority of abstract right need not in general rule out other categories of right, such as a
conception of distributive justice. If other forms of right cannot be explicated consistently with this first premise,
even the restricted interpretation of Rawls's claim is precluded.

However, the autonomy of corrective justice does not necessarily require that abstract right be regarded either
as the sole conception of right or even as the most adequate, the fullest specification of freedom. Everything depends
on the character of abstract right: whether, viewed in its own terms, it is absolutely stable and complete; or whether,
on the contrary, it must be resolved into other, more adequate normative categories in order to overcome certain
limits in its conception which, from the standpoint of abstract right itself, must be regarded as normatively
unsatisfactory. In the present context, a judgment of adequacy is always to be understood as being made from the
standpoint of free agency, as interpreted on a constructivist approach. It applies to the different forms of the
conception of the person and the matching notions of obligation that are based thereon, and it refers to how self-
sufficiently and completely these exhibit the idea of free agency. A transition to a second category of right will be
not only possible but necessary if it can be shown that it is both needed and able to resolve certain fundamental
tensions that arise in abstract right and that challenge its self-sufficiency on its own terms. Thus the attribution of
autonomy to abstract right does not as such rule out other categories of right (such as a distributive conception of
justice for the basic structure); it simply requires that they be developed out of a thoroughly immanent analysis of
abstract right itself, one that is able to get beyond abstract right only because it preserves what is valid in it, in
keeping with its lexical priority.

Let me try to clarify what I mean by an "immanent" analysis by indicating, first, how abstract right may be
shown to be limited on its own *609 terms and how the resolution of this limit may require us to postulate a new
aspect of self-determination that is not already explicitly contained in abstract right. [FN143] As it turns out, this
new aspect is one that is fundamental to Rawl's own characterization of the moral powers of persons for the
purposes of a distributive conception of justice for the basic structure.
 Abstract right, we have seen, requires that it be permissible for individuals to have things as their own. It
presupposes, then, that it is possible to distinguish between what is mine and what is yours. Indeed, this distinction
must be made exactly and completely, leaving no room at all for something that is beyond the possible ownership of
either you or me or, more generally, of someone. Moreover, in keeping with the public and relational standpoint of
abstract right, a person's claim of entitlement to something ought to be made out and validated in a way that can be
suitably represented before others. The demand that others respect my right must make manifest to them that it
already contains my reciprocal recognition of their rights. But while abstract right requires that these conditions be
met, it alone cannot assure their realization. Let me explain why.

Acquisition can only be brought about by an individual's exercise of his or her particular will. After all, it is
because individuals have particular and differing needs as well as interest that they seek to appropriate and to
transact in the first place. In addition, as self-determining and mutually separate agents, persons have the right to
(and can only) judge things in accordance with what seems right and good to them, independently of the opinions of
each other. Yet, we have seen, in abstract right, the form of right is elucidated through the complete abstraction from
particularity. In accounting for this form of right, we do not show that it satisfies or integrates in any way the
particular standpoints of different agents. For this reason, there can be no assurance that what a person wills or
intends must be in conformity with the requirements and the standpoint of abstract right. The form of right is worked
out here on the basis that there are no obligatory ends, including right itself.

Now, given that the form of abstract right is strictly relational and external, how can I from my own particular
standpoint assert my claim to something in a way that can reasonably be imposed by coercion on you? In terms of
content, your judgment may be different from and indeed incompatible with my own. Such differences will
inevitably arise over questions like: Exactly what and how much must I do to manifest externally to others my
present decision to appropriate something? Exactly what and how much do I acquire when I have done something to
this or that external thing? (In marking this part of a particular tree, for example, do I acquire only this part, or in
fact the entire tree, or the entire tree and so much of the soil in which it is rooted, or something else?) These
questions must be *610 settled if individual ownership is to be possible. Unless this can be done, the distinction
between what is mine and what is yours cannot be established, let alone assured. And this can be done only through
a decision that is made from a standpoint that is manifestly public and relational as entailed by abstract right. But
given the specific presuppositions of abstract right, how can one individual claim to represent this standpoint vis-à-
vis others on the basis of his or her particular judgment, interests, and intentions? There is nothing in the account of
abstract right that supports the idea that the will in its particularity enshrines the requisite point of view. This
difficulty is not remedied by my basing my claim on the fact that I may have reasoned conscientiously and in
conformity with the principles of abstract right. The problem here is not that I may be mistaken. Even if my claim is
reasonably founded, it is always made from my standpoint. Others, with equal right, can represent their contrary
claims in the same way. The fact that I may have made abstract right my end does not therefore make it an end for
others. Addition, we should keep in mind here that in abstract right no one is obliged to pursue any ends, including
abstract right itself. My adopting abstract right as my end cannot provide the kind of common public standpoint to
which everyone, despite their different judgments and points of view, may rightly be made subject for the purposes
of determining and applying coerceable rights and duties.

The result is that from the standpoint of abstract right, I may conscientiously and reasonably assert that I have
acquired something, say, by occupying it first, while another can conscientiously and reasonably come to an
opposite conclusion. Abstract right is a condition in which inevitably the reasonable cannot be either common or
regulative. Accordingly, in making a claim of right against others, I cannot assure them of reciprocal recognition of
their rights as conscientiously claimed by them. This, to repeat, is not necessarily due to ill-will or duplicity on my
part. While abstract right articulates principles of right that are certainly qualified to establish valid entitlements, the
presuppositions of abstract right make the determination of entitlements-and thus the entitlements themselves-
impossible. In effect, while persons may reasonably present claims of entitlement which others ought to respect,
these claims cannot be vindicated in a way that reflects the public and coercive nature of abstract right, and so
abstract right is a condition in which there can be no finally established entitlements to anything whatsoever; a state
that is wrongful and unreasonable in the highest degree, to use Kant's phrase, and that contradicts the right of
personality.
 This contradiction can be resolved only if there is a form of judgment that can validly claim the authority to
determine what is mine and yours from a public and external standpoint. To derive this form of judgment on a
constructivist basis, the elucidation of responsible agency must, as a first step, go beyond abstract right's complete
indifference to particularity as such, while at the same time not allowing unconstrained particularity to be a
determining ground of choice. The meaning of freedom must at least be developed by incorporating the standpoint
of an agent's being directed toward determinate ends, consistently with the constraints of right. On the one hand,
agents will now rightly demand of the requirements of justice that they satisfy their permissible particular interests
and needs; on the *611 other hand, such agents will have the responsibility of adopting ends that are compatible
with justice and indeed with their being under an obligation to act for the sake of the principles of justice. Unless
these conditions are met, there cannot be a particular will that wills the reasonable as such. Yet without such a will, a
constructivist account cannot hope to get beyond the impasse in abstract right. We see then that the resolution of this
impasse calls at least for the further specification of the moral powers of free and equal persons to include a capacity
for a sense of justice and a capacity for a conception of the good. [FN144] The needed public form of judgment can
then be worked out on the basis of these moral powers, along, of course, with other related ideas. And note that the
justification for taking this further step has arisen through an analysis of abstract right itself. In this way, it
exemplifies what I have called an "immanent" analysis. [FN145]

*612 At this point, I have tried to suggest why abstract right cannot lay claim to the whole of the domain of the
moral, even supposing that it is lexically first. There can-and indeed must-be other, more developed or complex
conceptions of the person and other, more adequate categories of right, all this from a constructivist standpoint.
[FN146] On the other hand, unless its priority is to be just an empty word, abstract right must impose some
constraints on the elucidation of these other categories. What, then, are the requirements that it imposes and, in
particular, do these requirements allow for the primacy of the basic structure in the terms discussed above? Another
way of putting the question is to ask what a conception of distributive justice must incorporate to be consistent with
the priority of abstract right. In discussing what a conception of distributive justice must preserve, I shall draw
attention to the limited nature of what abstract right enjoins, for this brings out an important contrast between the
constructivist account of corrective justice and libertarian theory. I take up this question, first, in connection with the
basis of corrective justice (personality and abstract right), and then with the principles of corrective justice (the first
principles of acquisition). I conclude that Rawls's theory of justice, perhaps alone among leading distributive
conceptions, seems prima facie compatible with the priority of abstract right.

If respect for personality is to be a condition of the validity of all other normative categories, the latter must
never represent persons as being inevitably tied to any determination that is given independent from or prior to the
activity of choosing. Stated positively, for a principle, end, or institution to have moral validity, its justification must
be such that it could be chosen by persons who can view themselves as capable of abstracting from all
particularities. This has several implications.

To begin, it means that even if, from a psychological, sociological, or some other nonmoral point of view,
something like a language, culture, or religion may be construed as providing a context for choice (which
individuals participating in it take as given and as a presupposed condition of their making meaningful choices), it
cannot be validated in these terms from a moral standpoint. Whatever normative significance is ascribed to
particular cultures or religions must be determined from a point of view that takes the capacity of persons to
transcend all contexts as their first and most elementary moral power. For persons as conceived, there simply can be
no contexts that must be treated as irreducibly given (in the sense of being *613 independent of the capacity of
persons to abstract) for the purposes of justifying principles of right. [FN147]

A second implication is this. If normative categories other than abstract right are to refer to agents' needs or
ends as part of their freedom, the needs and ends must be of a kind that may be attributed to persons who can view
themselves as capable of abstracting from all particularities. In the light of this capacity, individuals will be regarded
as fully accountable for the ends they pursue as well as responsible for the way they satisfy their needs, rather than
as passive carriers of desires and preferences, to use Rawls's phrase. [FN148] Preferences as such have no weight.

In this connection, I would like to draw attention to the fact that the priority of the right over the good, which is
a central feature of Rawls's conception, is exhibited here in its most fundamental form. In abstract right, the right is
shown to frame the good and to subordinate it absolutely. This is because abstract right consists solely, to use
Rawls's terms, in the reasonable, the rational (or good) having yet to be integrated as a part of freedom. And when
the rational is integrated, this must be done consistently with the priority of the reasonable, as represented by the
unconditional requirements of abstract right. We see then that the priority of right is an essential aspect of a
constructivist account of the moral.

There is a further and related point. Abstract right, we have seen, represents the pure form of coerceable right. A
duty or moral requirement that may be enforced by coercive means must ultimately be based on a conception of
obligation that has this form. The reason for this is as follows. To begin, recall that abstract right expresses the self-
relatedness of personality in the here and now and this, I have shown, entails a notion of right that is external,
relational, and negative in character. The ground of obligation does not refer in any way to an agent's purposes or
ends or even to his or her consciousness of obligation as a basis and a vehicle of duty. It represents the pure form of
what Kant called strict right, unmixed with anything ethical. The point I wish to emphasize is that once the ground
of obligation is conceived in complete abstraction from ends, the resulting form of obligation must be external,
relational, and negative in the way discussed in Part II. This is a necessary implication. Now it is this form of
obligation-and it alone-that is inherently enforceable by coercion; this in virtue of the abstraction from all ends. In
other words, if the ground of obligation made reference to an end, that is, if it postulated something for the sake of
which an agent ought to act and made this part of the duty, coercion would necessarily be ruled out. For while I can
be constrained by another to do something that is a means toward the other's end, I cannot be *614 coerced to make
something my end. I cannot be constrained by others to pursue something as my end. But it is only in making
something my end that I, as free agent, can have an end. [FN149] Hence, if the basis of an agent being under a duty
lies in the agent having this or that as an end, the obligation cannot be enforced by coercion. It also follows that a
conception of the good cannot be coercively enforced if the justification for enforcement must refer to it as an end.
This, and not any alleged relativity of values, is the basis of the impermissibility of coercion in a constructivist
approach. [FN150]

Accordingly, if a conception of distributive justice is to have requirements that may be coercively enforced,
these must be ultimately rooted in a form of obligation that has the relational, external, and negative features which
are exhibited in abstract right. Of course, the notion of entitlement will be of a different sort and will have a different
content, given the distinct premises of distributive justice. Similarly, the fundamental unit of social relation may be
elucidated in terms of a system of social cooperation rather than transactions. Yet persons' claims with respect to
each other and the basis of their obligations will be framed consistent with the form of abstract right, at least if their
claims and obligations are to be enforceable as matters of strict justice. [FN151]

With these preliminary points in mind, I turn now to the question of the kind of constraints that the principles of
abstract right impose on the elaboration of other, in particular distributive, principles of justice. Simply put, other
principles must respect the equal capacity for ownership that the principles of acquisition articulate. This is a
necessary first condition of their validity, and it represents nothing other than the lexical priority of abstract right.
What I first wish to stress, however, in the following remarks is that it is only a capacity for ownership that must be
respected.

In the discussion of first principles of abstract right, I tried to show that the requirement to respect the equal
capacity for ownership entails an innate right to one's bodily integrity, a right whose validity does not depend on any
act of acquisition and which other persons are always under an obligation to respect. In virtue of this right, we are
entitled to exclude others from using our talents and powers without our consent. The priority of abstract right
requires that every other normative category give due recognition to this entitlement. Thus the state itself is also
constrained by this requirement of respect. [FN152] This does not mean, however, that no *615 limitations
whatsoever may be placed on it. Prima facie, if a limitation can be shown to vindicate abstract right itself [FN153]
or to maintain intact the very conditions in which abstract right can be effectively exercised and guaranteed,
[FN154] it will be compatible with, even required by, abstract right. The justification must be of the requisite sort,
reflecting the priority of abstract right.

With respect to external things (that is, not the bodies of persons), the implications of abstract right are
somewhat different. Here, it is crucial to keep in mind that the merely negative conception of entitlement in abstract
right does not as such confer an innate right on persons to any single thing or to any bundle of things.
 When subjects of right are viewed just as formally equal persons with a capacity for ownership, abstract right
entitles individuals, vis-à-vis one another, to retain whatever and however much they may have acquired through
first occupancy or by derivative acquisition. Thus, under these presuppositions, I may rightfully retain whatever I
can acquire through transactions with others when, for example, I treat my talents and powers as assets for the
purposes of mutually beneficial exchange. This entitlement necessarily obtains whenever normative evaluation has
for its subject interaction between individuals viewed in this way. No person can rightly prohibit anyone else from
acquiring any thing, whether originally or with the consent of its owner. And since, in abstract right, there are only
formally equal persons, the right of appropriating must be unlimited: in this setting, a person rightfully complains if
anything is placed beyond the possibility of individual acquisition through first occupancy or derivatively. As a
consequence, it so happens that, where the presuppositions of abstract right alone obtain, any and every thing must
be available for individual appropriation in accordance with its first principles, irrespective of all distributive
considerations. [FN155] The fact that persons' different starting points (their *616 native endowments, family
circumstances, the social class into which they are born and in which they are raised, and so forth) are contingent
and undeserved is, we have seen, a matter of indifference from the standpoint of abstract right, which presupposes
merely the bare capacity for abstraction as the sole moral power of free and equal persons.

But once individuals are no longer viewed just as formally equal persons in transactions with each other but are
regarded, say, as free and equal members of a social or political whole (as Rawls's idea of society as a fair system of
cooperation supposes), this conclusion need not hold. More exactly, if it can be shown that a complete constructivist
account of free agency can and must have a conception of the needs of free and equal persons (such a conception
being consistent with their independence from particularity), and moreover that it can and must view external things
as necessary means for the satisfaction of those needs as well as produced and distributed on a basis of fair social
cooperation, the just social conditions in which individuals can rightfully acquire things may have to be specified
further to reflect this more developed standpoint.

This might be justified in the following way. While undeserved differential starting points may be a matter of
indifference so far as abstract right is concerned, they should not be allowed to influence the determination of the
rules constituting the basic institutions through which the development and the satisfaction of persons' needs takes
place, save if this is in conformity with persons' equal right to the satisfaction of those needs independent of what is
morally arbitrary. For, given the features of this more developed standpoint, justice should not be indifferent, as it is
in abstract right, to the fact that circumstances which are morally arbitrary can nonetheless deeply affect the
development and the satisfaction of the needs appropriate to free and equal persons. To ensure that the conditions in
which individuals acquire are consistent with their equal right to the satisfaction of such needs, it may be necessary
to formulate special principles of right, distinct from those of abstract right, in order to establish and to maintain
background conditions which are suitably independent from the arbitrariness of starting points and from other
similarly contingent aspects of social life. Individual appropriation in accordance with the nondistributive principles
of abstract right would thus take place against fair background conditions set up on the basis of a conception of
distributive justice. Since what and how much each individual can acquire would in these circumstances depend on
the nature of the background conditions, the conception of distributive justice could properly be said, in this sense,
to constrain the operation of corrective justice. In this way, the primacy of the basic structure and its distributive
conception of justice would be shown.

A division of labour of this sort between these two sets of principles seems prima facie to be compatible with
the priority of abstract right. At *617 least, it can be conceived so as to be fully consistent with respect for each
person's equal capacity for ownership. In keeping with the right to bodily integrity, no one is treated as a possible
object of ownership, and individuals are prohibited from using the talents and powers of others without their
consent. Every person's legal capacity to acquire and to contract is recognized. Nor is any external thing placed
beyond the possible ownership of someone in violation of abstract right. The fact that what and how much persons
can acquire in accordance with the nondistributive principles of corrective justice will now depend on the
background conditions specified by a conception of distributive justice does not in itself infringe abstract right. Here
it is crucial to keep in mind that the merely negative conception of right in abstract right does not as such entitle
anyone to any thing or to any bundle of things. [FN156] There is no innate right to external things. As I have
discussed, abstract right does not require that there be any particular amount or quality of things for the principles of
acquisition to operate upon. Its only requirement is the prohibition against using what already belongs to another by
innate or acquired right. As long as it is possible for persons to exercise their capacity for ownership on a basis of
equal right, abstract right is itself satisfied. This requirement is met in principle by fair background conditions that
are appropriately chosen by the combined wills of everyone, viewed as free and equal members of a social whole
and as having normatively valid needs as well as an equal right to their satisfaction. In contrast to libertarian
theories, there is nothing in abstract right that compels one to view such a distributive conception and the suggested
division of labour between principles as in violation of individual rights. On this interpretation then, there is no
necessary incompatibility between the autonomy of corrective justice and the primacy of the basic structure.
[FN157]

Rawls's difference principle, which is meant to be framed and applied only within a setting of background
institutions that already satisfies the first principle of equal basic liberties as well as fair equality of opportunity,
*618 seems to be consistent with priority of abstract right. Rawls states that the difference principle represents an
agreement to view the distribution of people's native endowments as a common asset and to share in the benefits of
this distribution, however it turns out. It is sometimes objected that this takes persons' native endowments to be the
property of society as a whole, thereby violating the individual right to bodily integrity. But, as Rawls has explained
on more than one occasion, this is a fundamentally mistaken interpretation. If the question arises as to who owns my
native endowments, the answer is quite simply that I myself do, this being required by the first principle of justice.
And this is certainly in keeping with the priority of abstract right. The difference principle has for its sphere of
application the production and the distribution of certain primary goods that are generated through the voluntary use
of endowments (both native and acquired) in a fair scheme of social cooperation. It specifies just background
conditions in which this is to take place. The fact that inevitably there are undeserved starting positions in the
distribution of native endowments for example, need not constitute a misfortune for those who, given their place in
that distribution, may be less advantaged in their share of the relevant primary goods. On the contrary, such
differences in starting positions can work to the advantage of all. By setting up fair background institutions that treat
differences in this way, people in effect agree to view the distribution of native endowments-and not the
endowments themselves-as a "common asset." This is the meaning of Rawls's statement. [FN158]

While it is true that the difference principle may limit what and how much I can acquire in accordance with the
principles of abstract right alone, this does not by itself infringe the latter's priority. In light of what I have already
suggested, the difference principle can, consistently with abstract right, determine the space available for voluntary
individual acquisitions and transactions on the basis of a certain conception of fair background conditions. At the
risk of repeating myself, I think the following points should be emphasized. Abstract right is wholly indifferent to
individual purposes, interests, and needs as such. There is accordingly no innate right of ownership over things, in
contrast to one's body. No one can found on abstract right a claim that there must be a certain domain available for
the individual appropriation and use of things. Thus, while principles of acquisition give rise to entitlements through
their operation, they apply in whatever space is available, the only qualifying condition being that the latter not be
contracted or enlarged on a basis that is morally arbitrary. Besides this proviso, there is no baseline against which to
measure the domain that ought to be available for individual appropriation. Consequently, while abstract right has
lexical priority, its principles do not establish entitlements to external things that are conceptually or normatively
antecedent to distributive justice. If we may, with Kant, equate "the state of nature" with a condition in which
abstract right alone is operative, then the state of nature provides no determinate bench-march against which to
measure the fairness of a given set of external holdings that have been generated in accordance with principles of
distributive justice. On the *619 contrary, consistent with abstract right's priority, distributive justice can carve out,
in accordance with its own criteria, the realm in which the principles of appropriation apply and entitlements may be
acquired. Indeed, as I explained in Part II, even the complete absence of such a sphere does not in itself violate
abstract right. Thus, at the limit it might be possible for a distributive conception to leave no space for the operation
of the principles of acquisition without infringing the priority of abstract right.

Of course, as I have said, the determination of the available space must be morally nonarbitrary and for a
constructivist approach this means that it must be justified in the light of the requisite conception of the person and
related ideas. But Rawls's argument for the difference principle, for example, is made in precisely these terms. The
claim is that given a political conception of the citizen as free and equal and as having the two moral powers, given
the account of the primary goods and the underlying idea of society as a fair system of cooperation, and so forth, the
difference principle regulates background conditions in a way that helps ensure that morally arbitrary contingencies
will not improperly determine the terms on which persons are to cooperate and primary goods are to be distributed.
The justification, in short, is that these background conditions are necessary for the fair treatment of persons so
conceived. This, then, seems on its face to be the kind of non-arbitrary determination that the priority of abstract
right must allow. I should add that insofar as an egalitarian liberal conception of distributive justice incorporates an
idea of the needs of free and equal persons, it seems inconceivable that it would not hold at least that individuals
should be permitted to acquire and possess sufficient personal and real property to support their sense of personal
independence and self-respect. In other words, we may expect that such a distributve conception will recognize a
sphere in which individuals are entitled to enjoy exclusive ownership and to transact freely with each other to satisfy
their different wants. If this is so, there will be a domain (however limited) in which abstract right's principles of
acquisition and transfer apply. And Rawls's first principle of justice, for example, provides for just that.

The weakness of the constraints imposed by abstract right on this aspect of distributive justice may seem
surprising to some. Yet, this conclusion follows from the fact that abstract right is based simply on the minimal
moral power to abstract from particularities and that it is wholly indifferent to needs and purposes. Moreover,
because it is just in virtue of these features that it is strictly nondistributive and that its principles can articulate a
pure entitlement conception of justice, we may say that the weakness of the constraints is entailed by its
nondistributive character. Here we have a conception of justice that admits no distributive considerations and is the
basis of principles for corrective justice. Indeed, I know of no other conception that fulfils these criteria as
completely and unqualifiedly. And it is just this conception that leads to the weak constraint. For this reason, I
conclude that the challenge posed by entitlement theory to the legitimacy of egalitarian conceptions cannot be made
out, at least on a constructivist approach. Against this, it might be objected that a nondistributive conception must
minimally allow individuals the exclusive ownership of sufficient property to ensure them a material basis for their
personal independence and self-respect. But this constraint supposes an account of *620 the needs of free and equal
persons and so, it must be emphasized, cannot be justified under abstract right. On the other hand, once individual
needs have been made morally relevant for this purpose, there is no reason to think that these considerations must
stop short of providing support for fair background conditions such as those required by the difference principle.

This brings me to my final point. For a conception of justice to be liberal, it is generally thought that certain
basic rights and liberties, to use Rawls's term, must be accorded lexical priority relative to the other principles in the
conception. This requirement, or one like it, follows necessarily from the priority of abstract right, as I will now try
to explain.

While it may only be a capacity for ownership that must be respected as a condition of the validity of other
normative categories, this capacity, I have argued, is itself inalienable, in the sense that one cannot transfer it to
another (even with both parties' consent) and one cannot bind oneself to waive or to limit it. Note that what is
inalienable is the capacity as such. [FN159] The root of this inalienability is personality itself, which, being
unqualifiedly self-related, can never be treated as a thing and a possible object of ownership. Since, as we saw
earlier, it is only things that can be owned and therefore alienated, it follows that personality itself cannot be
alienated. The right in one's personality is both inalienable and imprescriptible: I cannot lose the right through the
passage of time, through my failure to assert it, or through my willingness to give it up. An undertaking to waive or
limit this right is void ab initio. And whatever capacities or powers inhere in personality are, for the same reason,
inalienable. Thus the capacity to acquire ownership, whether through first occupancy or derivatively, is inalienable
and imprescriptible.

The thought underlying the inalienability of personality is this: Whatever constitutes a person's self-relatedness,
in other words, whatever belongs to a person's inward, thinking relation to him or to herself, must be treated as
inalienable and as not subject to coercion. Now, as discussed in Part II, constructivism holds that if something is to
be normatively valid and binding upon responsible agents it must be capable of being validated from the standpoint
of the agent's negative freedom, that is, with reference to one's relation with oneself in which every given content is
dissipated-a relation which Hegel calls "the pure thought of oneself." [FN160] Translated into the categories of right
and duty, this requirement implies that, for the purposes of justice, I, as a responsible agent, have the right to assert
this standpoint vis-à-vis everything that would claim my recognition and that, correlatively, I will be treated as
accountable on this basis. Because this right is rooted in my self-consciousness and my personality, it is inalienable
and *621 imprescriptible. Moreover, since this "right of self-consciousness," as I shall call it, represents a literally
unrestricted standpoint that is independent from every determinate content and interest, it cannot be limited by
anything other than itself. Thus, there is no rate of exchange, as it were, between it and any human interest, in terms
of which it might be permissible to balance respect for the one against recognition of the other. This right is simply
not commensurable with anything else. In addition, because the right of self-consciousness is rooted in each agent's
capacity for abstraction from everything particular and therefore in his or her abstract equality as a person, it must be
conceived as an equal right that belongs identically to all who may be reasonably viewed as free agents. Finally, as
something that belongs to the inwardness of self-conscious freedom, the standpoint presupposed in this right is
beyond coercion: the assertion of this standpoint can never be deemed a wrong; nor can it be responded to with
coercion. [FN161]

Given the priority of abstract right, a distributive conception of justice must fully respect the right of self-
consciousness and the inalienability of all that it entails. But what, it may be asked, is the content of this right? What
sorts of things are to be viewed as constituent elements of my inward, thinking relation to myself? Here, I will only
sketch the beginning of an answer, without attempting a more systematic justification. [FN162] I should emphasize
that, from the start, the question is asked exclusively from the standpoint of justice, that is, with reference to those
requirements that may be rightly enforced by coercion.

In addition to personality itself and the capacity for ownership, one's religion, one's ethical life (namely,
membership and participation in institutional forms such as the family, civil society, and the state), and one's
individual moral responsibility are to be treated for the purposes of justice as substantive characteristics that
constitute the essence of one's self-consciousness. These are aspects of social life that embody and make normative
claims on individuals. Therefore, it must at least be possible for a person to validate and confirm them from the
standpoint of his or her independence from everything given. Persons must be able to make these substantive
characteristics unqualifiedly their own, and this implies that it must be possible for the characteristics to belong to
persons on the basis of judgments that express their conception of themselves as thinking, responsible agents. But, to
begin, this self-conception is framed in terms of the standpoint of independence from particularity.

In abstract right, where relations between individuals are judged solely in terms of the imperative to respect
each other's equal capacity for ownership, the implications of the inalienable right of self-consciousness are limited.
Basically, persons cannot contractually bind themselves to *622 transfer it, and others are not permitted to limit the
exercise of the right or to use coercion against individuals on account of their having exercised it. Beyond abstract
right but consistent with its lexical priority, the right of self-consciousness must be respected as a necessary
condition of the validity of all other normative categories. Thus, persons cannot vest it with any external authority
whatsoever-including the state; political legitimacy itself rests on the recognition of this constraint. For example,
with respect to religion, no external authority has the right to determine what shall constitute an individual's faith or
what qualifies as religious truth. Religious ideas are not forced upon persons; they contain only those determinations
that individuals can recognize as and make their own. In short, "since the content of a man's faith depends on his
private ideas, the state cannot interfere with it." [FN163] In this way, the right of self-consciousness, when specified
for example with respect to religion, will be recognized as an inalienable and equal basic right or liberty, to use
Rawl's term. Of course, this does not necessarily exhaust the meaning or the content of freedom of religion and of
conscience; but it does belong to its essence and it must be preserved in framing all normative requirements.

These basic rights or liberties will be, in the first instance, what Constant called "the liberties of the moderns,"
the so-called negative freedoms. [FN164] The first condition of the validity of a distributive conception of justice is
that the basic liberties be accorded lexical priority, as in Rawls's first principle. [FN165] Their priority follows from
the fact that they are just so many different ways of giving specificity to the right of self-consciousness which can
only be conceived as incommensurable with every interest, however important and valid, that is not already
contained in it. Accordingly, no external authority can restrict a basic liberty except for the sake of this or some
other basic liberty. There cannot be any trade-offs between the basic liberties and other interests or considerations.
So, for example, there can be no rate of exchange between a principle which enshrines the basic liberties and, say,
one that requires social and economic inequalities to be ordered and justified in accordance with definite criteria,
such as Rawls's difference principle. Nor can the latter principle provide a reason for limiting the former. Vis-à-vis
other principles of justice, the principle guaranteeing the basic liberties is in this way first and absolute. Of course,
the complete and systematic specification of the content of the equal basic *623 rights and liberties that come under
this principle is a task of the first importance, one that would take us far beyond abstract right and the limited scope
of the brief remarks presented here. [FN166] However, whatever their content turns out to be, we can know this
much in advance: The equal basic liberties must, in the first place, be rooted in the self's right to think of itself as
unqualifiedly independent from everything particular and in its right to constitute itself as an accountable self
through this inward, contentless self-relation.

On this account, then, the priority of the basic liberties is not justified by reason of their importance to our
ability to lead a good life, to pursue ends that are genuinely worth realizing, or to decide what is truly valuable in
life. I have not argued they should be accorded priority because they provide conditions that are essential to our
forming and revising conceptions of our good. Such reference to ends is precluded where, as I have suggested, it is
the capacity for abstraction that is the moral power which is the first and ultimate ground of the requirement to
respect the basic liberties. It is only because agents can view themselves initially in complete abstraction from all
ends that the equality, the incommensurability, and hence the priority of these liberties can be accounted for. This is
not to say that the basic liberties cannot be viewed as valuable in relation to our interest in leading a good life. On
the contrary. The point is simply that in the first instance their justification consists in establishing their significance
as requirements entailed by the moral power of personality, which is categorially indifferent to such considerations.
Accordingly, at this most fundamental level (which establishes their priority), we need not ask why or whether they
are valuable. More exactly, at this first stage in the constructivist account, there simply is no basis for asking this
question. Here, it must be recalled, the concept of the good is not yet a validated normative category. [FN167]

This, then, is what the autonomy of corrective justice requires of a conception of distributive justice. In contrast
to libertarian theories, the constructivist account of justice in transactions does not rule out the possibility of there
being distinct principles of distributive justice that are based on their own specific conception of the person as free
and equal and are informed by a notion of entitlement that is particular to them. A substantive egalitarian conception
of justice does not necessarily violate the rights of persons as established by a pure entitlement theory, even
supposing the latter's unqualified lexical priority. In addition, the priority of abstract right seems to require a liberal
conception of distributive justice, one that gives priority to a set of basic liberties relative to other parts of the
distributive conception. This is a feature of a constructivist interpretation of the moral point of view and so
represents a requirement that has been *624 justified at a fairly fundamental level. The claim is that these
conclusions follow once a basic conception of responsible agency is supposed. And since this conception of agency
is, I believe, active in the most ordinary moral consciousness, the supposition is, relatively speaking, a weak and
widely shared premise. Notice, finally, that these conclusions have only been reached through the elucidation of a
moral basis that is specific to corrective justice and by showing how this basis yields first principles of justice that
are purely nondistributive in character. These matters have not been, nor do I think they can be, decided a priori,
without specifying an appropriate moral point of view and working through the various ideas of person and
obligation that, at least on a constructivist approach, are indispensable to the intelligibility of a moral conception. It
is through understanding the distinctive moral basis of corrective justice that we discern its limits and hence its
relation to distributive justice.

[FNa]. Associate Professer of Law, McGill University, Montreal, Canada.

I presented an earlier version of this Essay at the annual meeting of the American Philosophical Association
(Eastern Division) in Boston, 1990, where I received instructive and helpful written remarks from Joshua Cohen. I
also wish to thank David Carlson and Allen Wood for their useful suggestions and Ann Benson for carefully reading
and thoroughly discussing all the drafts.

[FN1]. The notion of priority that I have in mind here is lexical priority, as defined by Rawls. "[A lexical] order ...
requires us to satisfy the first principle in the ordering before we can move on to the second, the second before we
consider the third, and so on.... A serial ordering avoids, then, having to balance principles at all; those earlier in the
ordering have an absolute weight, so to speak, with respect to later ones, and hold without exception." John Rawls,
A Theory of Justice 33 (1971) [herereinafter Rawls, Theory]. Most recently, Rawls explains "priority" to mean that
in applying a second principle or in checking it against test cases we assume that the prior principle is fully satisfied;
the second principle holds within a context that fully satisfies the first. John Rawls, Justice as Fairness: A Briefer
Restatement §13 (Jan. 1990) (unpublished draft, on file with the Iowa Law Review) [hereinafter Rawls,
Restatement].

[FN2]. Here, I am adopting Rawls's view that the resolution of these disagreements defines one of the basic aims of
political and legal philosophy as part of its practical role in a modern democratic state. See, e.g., Rawls,
Restatement, supra note 1, § 1.
[FN3]. Two instances taken from the law of contract are: First, why, in the absence of detrimental reliance on the
part of the promisee, a purely executory agreement is enforced in accordance with the expectation measure of
damages; and second, how the doctrine of contractual fairness (unconscionability) is to be reconciled with
contractual liberty as embodied in the well-established principles of contract formation. The most important
treatment of the first question is still L.L Fuller & William R. Perdue, Jr., The Reliance Interest in Contract
Damages, 46 Yale L.J. 52 (1936). The authors explicitly frame the issue in terms of corrective and distributive
justice. Id. at 56. Discussions of the second question that implicitly or explicitly employ these categories are in
Charles Fried, Contract as Promise: A Theory of Contractual Obligation (1981); Michael Sandel, Liberalism and the
Limits of Justice 109 (1982); Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986);
Richard A. Epstein, Unconscionability: A Critical Reappraisal, 18 J.L. & Econ. 293 (1975); James Gordley,
Equality in Exchange, 69 Cal. L. Rev. 1587 (1981); Anthony T. Kronman, Contract Law and Distributive Justice, 89
Yale L.J. 472 (1980); Roberto Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 625-30 (1983). I
have discussed these and related questions in Abstract Right and the Possibility of a Nondistributive Conception of
Contract: Hegel and Contemporary Contract Theory, 10 Cardozo L. Rev. 1077 (1989) (Hegel and Legal Theory
Symposium) [hereinafter Benson, Abstract Right].

[FN4]. By an "egalitarian liberal" conception, I mean one that, in addition to recognizing and giving priority to a set
of fundamental liberties, affirms that (1) there should be fair (not merely formal) equal opportunity for citizens to
attain socially advantageous positions and, in particular, to participate in and to influence the outcome of political
processes; and (2) that economic and social inequalities must satisfy citizens' equal claims to share in the benefits of
social life.

[FN5]. In this Essay, I limit discussion to the views of Nozick and Rawls. Nozick's account is found in Robert
Nozick, Anarchy, State, and Utopia (1974) [hereinafter Nozick, Anarchy]. Other examples of entitlement theories
include: James Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (1975); David P. Gauthier,
Morals by Agreement (1986); Friedrich A. Hayek, Law, Legislation, and Liberty, in 2 The Mirage of Social Justice
§§ 9, 10 (1976).

[FN6]. The second principle reads, "Social and economic inequalities are to satisfy two conditions: first, they are to
be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are
to be to the greatest benefit of the least advantaged members of society (the difference principle)." Rawls,
Restatement, supra note 1, § 13.

[FN7]. "[H]istorical principles of justice hold that past circumstances or actions of people can create differential
entitlement or differential desert to things ...." Nozick, Anarchy, supra note 5, at 55.

[FN8]. The principle of justice in acquisition concerns the appropriation of unheld things and "includes the issues of
how unheld things may come to be held, the process, or processes, by which unheld things may come to be held, the
things that may come to be held by these processes, the extent of what comes to be held by a particular process, and
so on." Nozick, Anarchy, supra note 5, at 150. The principle of justice in transfer has to do with the processes by
which persons may transfer their holdings to others or may acquire them from others and deals with voluntary
exchange, gift, and so forth. Id. Traditionally, these two kinds of principles have been referred to as principles of
original and derivative acquisition respectively. See, e.g., Hugo Grotius, The Law of War and Peace, bk. II, ch. II-
XIII (Francis Kelsey trans., 1925).

[FN9]. The proviso is discussed in Nozick, Anarchy, supra note 5, at 175-82.

[FN10]. My discussion of the third claim is based on id. at 198-204, 238. At one point, Nozick explicitly raises the
possibility of entitlement considerations being lexically prior, but does not pursue the question any further. Id. at 344
n.5. One of my aims in this Essay is to do so.

[FN11]. According to Nozick, a conception of justice is "patterned" if it requires that resources, say, must be
distributed so as to vary along with some criterion, such as moral merit, usefulness to society, intelligence, need, and
so forth. Patterned conceptions may be historical or not. Principles that are nonhistorical and patterned are referred
to as "end-result" principles. The entitlement conception, by contrast, is historical and unpatterned. Id. at 153-56.

[FN12]. Id. at 238.

[FN13]. In his most recent formulation, Rawls has explained the idea of "background justice" this way: "[B]y the
basic structure of society is meant the way in which the main political and social institutions of society fit together
into one system of social cooperation, and the way they assign basic rights and duties, and regulate the division of
advantages which arise from social cooperation over time .... The basic structure is the background social framework
within which the activities of associations and individuals take place. A just basic structure secures what we may
refer to as background justice." Rawls, Restatement, supra note 1, § 4. See also John Rawls, The Basic Structure as
Subject, in Values and Morals 47, 52-55 (Alvin I. Goldman & Jaegwon Kim eds., 1978) [hereinafter Rawls, The
Basic Structure].

[FN14]. My interpretation of Nozick's reference to "manna from heaven" is based on the discussion in Nozick,
Anarchy, supra note 5, at 198-99. In particular, see the note at bottom of page 199. Id. I should mention here that a
number of writers have understood this reference in a very different way. See, e.g., Gerald A. Cohen, Self-
Ownership, World-Ownership, and Equality, in Justice and Equality Here and Now 119 (Frank Lucash ed., 1986);
Will Kymlicka, Contemporary Political Philosophy: An Introduction 108 (1990); Jeremy Waldron, The Right to
Private Property 279 (1988). These writers take Nozick's objection against nonhistorical patterned conceptions of
justice to be that the latter wrongly suppose that things can come into being without already being owned by
someone. According to these writers, Nozick must hold that without exception everything is produced and comes
into the world already attached to someone who has an entitlement over it. This, they argue, must be false.
Production presupposes a material basis originally provided by nature and, of course, nature existed before men. So
there must have been things, subsequently used by men, which were not initially held by anyone in particular. They
also note that Nozick's assertion does away with the task of explaining original acquisition, a consequence that is not
only problematic in itself but is also inconsistent with Nozick's own claim that principles of original acquisition are
integral to an entitlement theory.
If this interpretation were correct, then plainly the criticism would be justified. However, as I have indicated in
the text, I think that the point of Nozick's reference to "manna from heaven" is otherwise. While Nozick standardly
refers to the fact that in this 'non-manna-from-heaven world' things are produced, made, or transformed by people,
his objection to patterned conceptions in general and to Rawls's theory in particular does not rest on the untenable
premise that all things are produced or that everything comes into the world already attached to someone who is
entitled to it. Nozick need not-and does not-deny that there can be initially unheld things. He refers to produced
goods simply because he assumes, with good reason, that a significant part, indeed the greatest part, of the wealth
that is the subject matter of distribution consists in labored-on, transformed nature. Moreover, inasmuch as the social
process of producing this wealth in a free society is, and in Nozick's view should be, effected through persons
entering into voluntary transactions with each other on the basis of principles of justice in holdings-which generally
regulate people's entitlements over the results of this process (the things produced) in advance-he can legitimately
say in this case: "things come into being already held ... or with agreements about how they are to be held ...."
Nozick, Anarchy, supra note 5, at 219. In this context, then, patterned conceptions of justice are said to treat things
like "manna from heaven" because they generally give individuals enforceable claims to some portion of the total
social product, irrespective of the entitlements that the producers of this social product can have over the things in
virtue of the principles of acquisition and transfer. And this, Nozick contends, is a violation of the producers' rights.
What must be emphasized, however, is that Nozick's point is a general one, and not limited solely to the case
(however significant) of produced goods. When patterned conceptions of justice divide things up in accordance with
a principle such as "to each according to his ..." they illegitimately disregard the fact that persons may be entitled to
particular things on the basis of the principles of first acquisition or transfer, whether th things are produced or not.
By starting afresh to complete "to each according to his ..." without recognizing these entitlements, patterned
conceptions wrongly assume that "everything legitimately may be treated like manna from heaven." (Id. at 199).
This is Nozick's objection. Whether it is well-founded or not, is of course a different matter.

[FN15]. Nozick, Anarchy, supra note 5, at 202-03.

[FN16]. Nozick considers this possibility. Id. at 230-31. I should add that the justification Nozick suggests for the
difference principles belongs to what Rawls calls "non-ideal" theory. This contrasts with Rawls's account of the
difference principle which is part of ideal theory.

[FN17]. Wesley N. Hohfeld, Fundamental Legal Conceptions (1919) [1966].

[FN18]. The ad hoc nature of the proviso from the standpoint of an entitlement conception of justice is noted by
Waldron, supra note 14, at 283, and is discussed in Ernest J. Weinrib, Right and Advantage in Private Law, 10
Cardozo L. Rev. 1283 (1989). It is worth pointing out that unlike the proviso. Nozick's "principle of rectification"
corrects for violations of the principles of acquisition and transfer. It belongs to nonideal theory. See Nozick,
Anarchy, supra note 5, at 152-53. In this respect, it is justified on a basis that is compatible with taking the
entitlement conception as fundamental. The fact that this may not be true of the Lockean proviso, which
nevertheless is supposed to limit the operation of the principles of acquisition, means that the proviso is subject to
the very same criticism that Nozick brings against the difference principle. The proviso's weakness, relative to the
difference principle, cannot save it but merely makes it less satisfactory from the standpoint of background justice.
On this last point, see discussion in next paragraph of text.

[FN19]. This point has been discussed by a number of writers including Cohen, Kymlicka, and Waldron, all supra
note 14.

[FN20]. The term "division of labour" as well as the meaning I have given it are from Rawls. See Rawls, The Basic
Structure, supra note 13, at 54-55.

[FN21]. At certain points, Nozick seems to link the third claim concerning the fundamental nature of the principles
of entitlement with the view that these principles completely exhaust the content of justice in holdings. I do not think
it is necessary to state the claim in this way from the outset. Prima facie, it seems to be one of our considered
judgments that a complete conception of justice should include requirements to preserve background justice. This is
brought out by Rawls's instructive discussion of possible interpretations of the second principle of justice in Rawls,
Theory supra note 1, § 12. Indeed, Nozick's own claim that something like the Lockean proviso must belong to any
entitlement conception seems to reflect this view. However, even if the entitlement principles constitute but a part of
justice, we can still ask: are they fundamental, that is, are they lexically prior to the other parts of justice, imposing
significant constraints on the formulation and operation of the latter? By disentangling the entitlement principles
from the Lockean proviso, we are in a position to address this question squarely.

[FN22]. Thus, for example, Jeremy Waldron tests the legitimacy of entitlement conceptions against a standpoint
which takes the satisfaction of certain human needs as an essential part of a conception of justice. Waldron, supra
note 14, at 274-78. It comes as no suprise that, viewed in this light, entitlement theories turn out to be unsatisfactory.

[FN23]. I do not think that Nozick's much commented-on discussion of "how liberty upsets patterns", Nozick,
Anarchy, supra note 5, at 160-64, is intended to establish the priority and the fundamental character of entitlement
principles or of the property rights that are generated thereby. Rather than showing why entitlement principles
should be treated in this way, the discussion simply assumes that they will, in some form, be incorporated into any
liberal conception of distributive justice and, with this taken as given, it raises a quite specific objection against
competing conceptions of justice: namely, that they must be vulnerable to a particular sort of instability. The claim
is that a given pattern of distribution must inevitably be disturbed by the outcomes of private transactions freely
entered into. As long as they are in some way private and voluntary, transactions will have distributional
consequences that need not coincide with a favored pattern. Consequently, "no end-state principle or distributional
patterned principle of justice [except perhaps for one that is "very weak"] can be continuously realized without
continuous interference with people's lives." Id. at 163. The point of the discussion about how liberty upsets patterns
is thus to show the necessary instability rather than the injustice of any distributive conception that sets up
requirements of background justice more extensive than those of a minimal state limited to protecting persons
against murder, assault, theft, and so forth. Even if the more stringent background constraints of such distributive
conceptions can be morally justified on some basis-and Nozick expressly leaves this question open for the purposes
of the present discussion-they must be rejected because of their instability. As it stands, the argument does not
depend on the further premise that individual property rights are full capitalist property rights to control any amount
of resources in all ways, nor does it seek to demonstrate that they must be such. For this reason, I cannot agree with
Onora O'Neill's criticism of the discussion which concludes that "until Nozick provides an argument to show that
property rights must be full capitalist property rights the Wilt Chamberlain example shows nothing." Onora O'Neill,
Nozick's Entitlements, in Reading Nozick 305, 309 (Jeffrey Paul ed., 1981) (emphasis added).
In this connection, it is worth mentioning that Rawls seems to have interpreted Nozick's objection in the way I
have suggested and he elaborates an idea of what he calls "pure adjusted procedural justice" in reply to it. Rawls,
Restatement, supra note 1, § 14. Like Nozick, he recognizes a tension between the preservation of background
justice and the accumulated results of individual transactions. He writes that "the tendency is ... for background
justice to be eroded even when individuals act fairly: the overall result of separate and independent transactions is
away from and not towards background justice." Rawls, The Basic Structure, supra note 13, at 54. To offset this
tendency, Rawls argues that it is consistent with and indeed required by justice that the principles which govern the
basic structure of society include rules that make the necessary adjustments over time, thereby preserving fair
background conditions. These rules are to be in the full sense public rules and they will therefore be foreseen by
citizens in advance, so that they will already be taken into account by citizens when they draw up their plans in the
first place. Consequently, Rawls concludes, these adjustments need not entail "any more continuous or regular
interference with individuals' plans and actions than do, say, familiar forms of taxation." Rawls, Restatement, supra
note 1, at 42-43. Rawls's aim here is to show that there can be a division of labor between principles that set up and
maintain institutions of background justice (more extensive than those of a minimal state) and principles that apply
directly to private transactions which is not unstable in the way Nozick contends it must be.

[FN24]. This is a point that, for example, Kant emphasizes and discusses in some detail. See Immanuel Kant, The
Metaphysics of Morals 113-22 [297-308] (Mary Gregor trans., 1991) [hereinafter Kant, The Metaphysics of
Morals].
Editor's note: the numbers appearing in brackets supra refer to page numbers of the original work before
translation. This style of citation appears throughout when translated works have been cited.

[FN25]. While it is unusual to find this view explicitly articulated and defended, two recent examples are Gordley,
supra note 3, and Waluchow, Professor Weinrib on Corrective Justice, in Justice, Law, and Method in Plato and
Aristotle 153-57 (Spiro Panagiotou ed., 1987). In addition, it might be though that Rawls is a third example. To
support this claim, one might refer to his remarks on Aristotle's view of justice in Rawls, Theory, supra note 1, at
10-11, as well as to his central claim concerning the primacy of the basic structure as stated in, for example, Rawls,
The Basic Structure, supra note 13. I will discuss the meaning and implications of Rawls's claim about the basic
structure in Part IV of this Essay. As I shall try to show, this claim need not be construed as committing him to the
current view of corrective justice, as I have described it. As for the previously cited passage from Theory, Rawls
writes only that entitlements "are very often" derived from social institutions that belong to the basic structure and
that are to be ordered by distributive justice. This does not necessarily preclude there being a distinct conception of
entitlement that belongs to corrective justice.
Two notable exceptions to the current view are John Finnis, Natural Law and Natural Rights 164-84 (1980);
Ernest J. Weinrib, Corrective Justice, 77 Iowa L. Rev. 403 (1992); Ernest J. Weinrib, Legal Formalism: On the
Immanent Rationality of Law, 97 Yale L.J. 949 (1988).

[FN26]. Note that this conclusion holds no matter what is deemed to be the basis of entitlements (whether it is
distributive justice or something else), so long as the account of corrective justice starts from the premise that
entitlements are to be conceived as antecedent to and independent from it.

[FN27]. The difficulty cannot be resolved by supposing that the function of corrective justice is to protect
entitlements which are held to exist simply by virtue of the positive law. For the positive legal order must, on the
Aristotelian approach, be both intelligible and justifiable in the light of the forms of justice. In the order of
conceptualization and justification, these forms are thus prior to the positive legal order. Accordingly, reference to
the latter cannot be part of the basis of the elucidation of the former.

[FN28]. The same can be said in connection with distributive justice and equality. Distributive justice establishes a
specific kind of "equality of treatment": it stipulates that all individuals coming within a given purpose and criterion
of distribution must be accorded equal consideration by being judged solely in terms of the degree to which they
embody the features made relevant by the criterion. All other features or considerations must be disregarded.
Aquinas calls a breach of this requirement of equal treatment "respect for persons" (i.e. favoritism). See Thomas
Aquinas, Summa Theologica II-II, Q. 63, Art. 1 (Fathers of the English Dominican Province trans., 1947)
[hereinafter Aquinas, S.T.]; Finnis, supra note 25, at 179.

[FN29]. It is for this reason that Aquinas refers to "corrective" justice as "commutative" justice. In doing so, he
characterizes both forms of justice in strictly parallel terms, each being designated in the light of a specific category
of interaction. In Aquinas's account, they are presented explicitly as two mutually irreducible forms of justice. On
the significance of Aquinas's use of the term "commutative," see Finnis, supra note 25, at 178-79.

[FN30]. Aristotle, Nicomachean Ethics V 1130a13 (Terence Irwin trans.1985) [hereinafter Aristotle, N.E.]. See also
Aquinas, S.T., supra note 28, at II-II, Q. 58, Art. 2.

[FN31]. Thomas Aquinas contrasts the mode of relationship in household community with the mutual externality of
the mode of relationship in justice: In the former, "one person is, as it were, part of the other;" in the latter, "the good
of one individual is not the end of another individual." Aquinas, S.T., supra note 28, Q. 58, Arts. 7, 9. See also Jean
Dabin, General Theory of Law, in The Legal Philosophies of Lask, Radbruch, and Dabin 435, 444 (Kurt Wilk trans.,
1950).

[FN32]. These examples are taken from Aristotle, N.E., supra note 30, at 1130b2 and from Thomas Aquinas,
Commentary on the Nicomachean Ethics V., L.III, ¶919 (C.I. Litzinger, O.P. trans., 1964) [hereinafter Aquinas,
Commentary].

[FN33]. In Aquinas's words, "since [particular] justice is directed to others, it is not about the entire matter of moral
virtue but only about external actions and [external] things, under a special aspect of the object, insofar as one man
is related to another through them." Aquinas, S.T., supra note 28, at II-II, Q. 58, Art. 8.

[FN34]. Aristotle, N.E., supra note 30, at 1130a15; see also Aquinas, Commentary, supra note 32, at V., L.III,
¶¶913-26; Aquinas, S.T., supra note 28, at II-II, Q. 58, Art. 7. In the Aristotelian tradition, particular justice, which
has to do merely with external actions and holdings, is contrasted with "general" or "legal" justice, which commands
the practice of all the virtues and prohibits the exercise of all the vices insofar as these can affect the good of others
or what Aquinas called the "common good." Although general justice has to do with the practice of the virtues and
thus, to this extent at least, seems to share a common subject matter with the other virtues, it is nonetheless distinct.
For the practice of virtue can be analysed under two aspects, namely, how it bears upon the perfection of character
and how it affects the good of others. Whereas the virtues other than justice have the former as their proper end,
general justice concerns itself exclusively with the latter. This is the basis of its being a distinct virtue.

Because my topic in this Essay is particular justice only, reference to "justice" should always be understood to
mean "particular justice," unless otherwise indicated.

[FN35]. Aquinas, S.T., supra note 28, at II-II, Q. 58, Art. 2. See also Aristotle, N.E., supra note 30, at 1131a15.

[FN36]. Aristotle, N.E., supra note 30, at 1131a15-20; see also Aquinas, Commentary, supra note 32, vol. I, ¶¶927,
934, where Aquinas presents these four terms as necessarily entailed by the mean of particular justice as such, and
thus as pertaining to both distributive and corrective justice. In accord with this interpretation is Konrad Marc-
Wogau, Aristotle's Theory of Corrective Justice and Reciprocity, in Philosophical Essays 26 (1967).

[FN37]. Aquinas's celebrated discussion of "right" begins with just this point: "and so a thing is said to be just, as
having the rectitude of justice when it is the term of an act of justice, without taking into account the way in which it
is done by the agent; whereas in the other virtues nothing is declared to be right unless it is done in a certain way by
the agent. For this reason, justice has its own special object over and above the other virtues .... Aquinas, S.T., supra
note 28, at II-II, Q. 57, Art. 1.

[FN38]. "[E]ach man's own is that which is due to him according to equality ...." Id. at II-II, Q. 58, Art. 11.
[FN39]. The Greek term "ison" means both "equal" and "fair." See Irwin's translation of Aristotle, N.E., supra note
30, at 123.

[FN40]. Id. at 1131a29-1131b12.

[FN41]. Aquinas states this explicitly. Aquinas, S.T., supra note 28, at II-II, Q. 58, Arts. 1, 7, 61.

[FN42]. "[In distributive justice] something is given to a private individual, insofar as what belongs to the whole is
due to the part." Aquinas, S.T., supra note 28, at II-II, Q. 61, Art. 2.

[FN43]. Id. at II-II, Q. 61, Arts. 1, 2; see also, Aristotle, N.E., supra note 30, at 1130b31, 1131b28-30.

[FN44]. An "allocative" conception of justice postulates a "given collection of goods ... to be divided among definite
individuals with known desires and needs ... [where] the goods to be allotted are not produced by these individuals,
nor do these individuals stand in any existing cooperative relations." Rawls, Theory, supra note 1, at 88.

[FN45]. Aristotle, N.E., supra note 30, at 1132a2-5.

[FN46]. The view I am presenting of persons' equality in corrective justice differs fundamentally from the
conception suggested by Professor Marc-Wogau. See Marc-Wogau, supra note 36. According to him, when
corrective justice treats the two parties as equal, it supposes that they are identical in respect of some determinate
feature. In mathematical terms, then, persons are assigned an identical sum. Given their equality, the principle of
arithmetic equality can be applied in the settlement of their claims. On this view, however, as Marc-Wogau himself
concludes, there does not seem to be any categorial difference between corrective and distributive justice. Indeed, he
goes on explicitly to assimilate corrective justice to distributive justice, arguing that the former is just a "special
case" of the latter: "for corrective justice too, the just is the geometrical proportion a : b = c : d, only the persons a
and b are assumed here to be equal. If a and b ... are equal, then also c = d, and it is to this equality ... Aristotle refers
by the arithmetical equality as the norm for corrective justice." Id. at 24.

As I shall try to explain in due course, corrective justice has, in addition to its distinctive conception of equality,
its own notion of entitlement which is irreducible to that of distributive justice.

[FN47]. Aristotle, N.E., supra note 30, at 1132b18-20. See also Dabin, supra note 31, at 444-45.

[FN48]. My characterization of voluntary and involuntary transactions draws upon Aquinas's discussion in S.T.,
supra note 28, at II-II, Q. 61, Art. 3.

[FN49]. Of the different possible bases of obligation in private law, contract, and specifically contract formation, is
the central example of voluntary transaction. Accordingly, the various conditions of contract formation (such as
offer and acceptance, sufficient consideration, and, possibly, adequate consideration) must be specified so as to
accord with arithmetic equality in voluntary transactions. I discuss these matters briefly in Benson, Abstract Right,
supra note 3, at 1082-85 and more fully in Peter Benson, Contract Law and Corrective Justice (unpublished draft,
1992) (on file with the Iowa Law Review). For an interesting recent treatment of unconscionability in terms of
arithmetic equality, see Gordley, supra note 3.

[FN50]. "Deprivation" is understood here as including injury to, interference with the use of, or appropriation of
another's possession. Breach of contract, tort, and unjust enrichment are the main instances in private law of
involuntary transactions.

[FN51]. Kant makes this point. Kant, The Methaphysics of Morals, supra note 24, at 91 [271].

[FN52]. Thus the distinct kinds of external actions that establish voluntary transactions on the one hand and
involuntary transactions on the other must be specified and differentiated. Take involuntary transactions for
instance. In unjust enrichment, as contrasted with both breach of contract and tort, a party need not be represented as
doing something, such as taking, that interferes with or injuries another's rightful holding: it is sufficient merely if
one has something that belongs to and that cannot rightfully be withheld from the other. In the case of unjust
enrichment, "having" and "withholding" are the kinds of external acts needed to establish an involuntary transaction.
And the well-established principle in unjust enrichment that one is liable only if, and to the extent that, one has
obtained a gain or benefit at another's expense reflects this fact that simply having or retaining what rightly belongs
to another can here be the basis of liability. See Lord Wright's instructive analysis of the principle of unjust
enrichment in Fibrosa Spolka Akcyjna v. Fairnbairn Lawson Combe Barbour, Ltd., [1943] App. Cas. 32, 61-73
(P.C.). See also Aquinas, S.T., supra note 28, at II-II, Q. 61, Art. 3; II-II, Q. 62, Arts. 1, 3, 5, 6 (discussing the
different kinds of external acts that constitute transactions).

[FN53]. Aristotle represents the mean of corrective justice as a single line which, while it may stand for just one
party's holdings, embraces both parties and serves as the standard of their equality. Aristotle, N.E., supra note 30, at
1132b6ff.
This is the appropriate place to consider an alternative interpretation of the Aristotelian account of arithmetic
equality which seems plausible and has some support from the text itself. On this view, the baseline of equality is
thought of as necessarily applying to the holdings that both parties have at the start of a transaction and not, as I have
suggested, to the holdings of just one of them. Aquinas, for instance, illustrates the mean of corrective justice by
supposing that both parties have equal amounts of something at the start. Aquinas, S.T., supra note 28, at II-II, Q.
61, Art. 2. See also Weinrib, Corrective Justice supra note 25, at 408("the holdings of the parties immediately prior
to their interaction provide the baseline from which the gain and the loss are computed").

As Professor Weinrib rightly emphasizes, the postulated equality in holdings can only be purely notional. The
analysis of equality in transactions and, indeed, of voluntary and involuntary transactions themselves, does not
presuppose that the parties have equal quantities of holdings. Thus, as Professor Weinrib notes, the parties' notional
equality consists at most in their both being owners of whatever they have, however much their holdings may differ
in kind or quantity Id. But, it may be further asked, why is it necessary to refer at all to the holdings of both parties?
The most plausible answer is that this is done in order to measure the injuring party's gain, in addition to the injured
party's loss. (By "injuring" party, I mean one who causes another's loss.) And reference to gain seems to be implied
by the very concept of the mean in justice, which entails having neither more or less than one's due. So Aristotle
defines what is correctively just as "intermediate between a certain kind of loss and gain ...." Aristotle, N.E., supra
note 30, at 1132b18ff.
Yet, gain and loss do not, I think, have the same significance in corrective justice as they do in distributive
justice. In distributive justice, if one person receives less than his or her share, another necessarily receives more,
and vice-versa. Gain and loss go together and both have to do with the holdings that must be distributed in
accordance with geometric equality. (I am assuming here that at any one time there is in effect a fixed quantity of
goods to be distributed and that all of these goods have in fact been distributed.)
In corrective justice, by contrast, it is the loss alone that has to do with the holdings that must be consistent with
arithmetic equality. In most instances of voluntary and involuntary transactions, the injuring party's holdings (and
therefore his or her gains, if there are any) play no part whatever in the analysis of arithmetic equality. The one
important exception seems to be unjust enrichment, where the principle of liability refers to the gains obtained by
(and thus to the holdings of) the enriched party. However, as I have suggested, see supra note 52, this reference to
gain is necessary only in order to establish that a party has acted externally, the external act here being the "having"
and "withholding" of something at another's expense. In virtue of this act, the party becomes an injuring party.
Without a gain by one at the expense of the other, a nexus of interaction cannot be established between them.
Nevertheless, in unjust enrichment, as in all transactions that fall under corrective justice, the stipulated comparison
between holdings is made between what the injured party has at the start and at the finish of the interaction. The
comparison consists, then, in just the determination and the measurement of loss or injury suffered by this party. The
baseline is provided by what the latter rightfully has at the start of interaction. In Aquinas's words, "the chief end of
restitution is, not that he who has more than his due may cease to have it, but that he who has less than his due may
be compensated." Aquinas, S.T., supra note 28, at II-II, Q. 62, Art. 6. Thus, loss and gain do not have the same
significance and function in corrective justice: loss alone has to do with the holdings that must be maintained in
accordance with arithmetic equality, whereas gain, to the extent that it is relevant, establishes at most that there is an
external act through which one individual can impinge externally upon the holdings of another. In this respect also,
the mean in corrective justice is framed differently from the mean in distributive justice.

[FN54]. It is worth noting that Aquinas recognizes this feature explicitly. See Aquinas, S.T., supra note 28, at II-II,
Q. 62, Art. 8.

[FN55]. Whether or not a person has manifested such control is a question that is more or less difficult to answer
depending on the particular circumstances of each case. Thus, it seems relatively clear that the actual receipt of a
distributed benefit can be viewed in this way. What if, to take a different example, the benefit has yet to be received
but is nonetheless definitely due someone under a given scheme of distribution? Unless the requisite manifestation
of control must necessarily be coextensive with actual physical control, it may still be possible to construe a
distributive share that is not yet allocated but due to someone as being under that person's control for the purposes of
corrective justice. Indeed, as I try to show in Parts II and III, the nondistributive conception of entitlement does not
reduce rightful control to physical control as such. If this is so, the failure by a distributor to allocate something to an
individual to whom it is distributively due or the appropriation by one person of something that is distributively due
to another can in principle violate an entitlement in corrective justice. This conclusion, which I shall not attempt to
justify further here, accords with Aquinas's own analysis. See, e.g., Aquinas, S.T., supra note 28, at II-II, Q. 62, Art.
1.

[FN56]. Gustav Radbruch suggests that the equality of persons in corrective justice derives from "an act of
distributive justice which has granted to those concerned equality of rights, equal capacity to act, equal status."
Gustav Radbruch, Legal Philosophy in The Legal Philosophies of Lask, Radbruch, and Dabin, supra note 31, at 74.
This view seems to be incompatible with the Aristotelian conception. Assuming a categorial difference between the
notions of equality in corrective and distributive justice, one cannot ground one in the other. The equality proper to
distributive justice does not entail the complete abstraction supposed by corrective justice. Lacking this feature,
distributive justice cannot confer it. Moreover, it is difficult, if not impossible, to see how equal status can be
intelligibly conceived as something that may be distributed. Indeed, Radbruch himself writes that distributive justice
"... presupposes that, from a standpoint which it does not of itself provide, equality or inequality has already been
established." Id. at 75. The consequence of his view is that distributive justice alone is the "prototype of justice," a
conclusion that is certainly at odds with the Aristotelian interpretation.

[FN57]. At most, Aquinas merely alludes to the difficulty raised by the first question when he states that in
corrective justice "the law treats [the parties] as equals, however much they may be unequal." Aquinas,
Commentary, supra note 32, at ¶951. As for the second question, Aristotle makes certain remarks in The Politics that
relate to the basis of rightful possession. He seems to hold that something can be an object of possession if, by its
nature, it does not belong to itself but can be subsumed under another. Of all natural beings, only those that have
reason truly belong to themselves and not to another. Hence, such beings alone cannot be made objects of
possessions but must always be recognized as subjects of possession. Aristotle, Politics, 1254a1ff, 1254b15ff. A
similar view is suggested by Aquinas, S.T., supra note 28, at II-II, Q. 66, Art 1. While this elucidation of the basis of
the possibility of rightful possession does not explicitly invoke distributive considerations, it is not framed in terms
of, or even related to, the abstract conception of the person and the specific notion of entitlement which, I have
suggested, must be presupposed by the Aristotelian conception of corrective justice. Nor will reference to the good
or to the final end of man provide the needed grounding. While virtues other than particular justice may be
explicated in the light of this idea, corrective justice, with its complete abstraction from ends and considerations of
worth, cannot. Historically, it was not until first Kant and later Hegel worked out a doctrine of right in terms of an
idea of freedom as practical reason that a suitable basis for the conceptions of person and entitlement in corrective
justice was established.

[FN58]. Aristotle treats an exchange in which one neither gains nor loses in comparison with what one owned at the
start as paradigmatic of arithmetic equality. Aristotle, N.E., supra note 30, at 1132a14ff, 1132b11ff. Aquinas
explicitly postulates exchange on the basis of equivalence as a fundamental principle of commutative justice.
Aquinas, S.T., supra note 28, at II-II, Q. 77, Art. 1.

[FN59]. In this and the following excerpts from Aristotle's treatment of equivalence in exchange, I have used the
translation of Scott Meikle, Aristotle and the Political Economy of the Polis, 1979 J. Hellenic Stud. 57, 59-60.
Aristotle, N.E., supra note 30, at 1133a16ff.
[FN60]. Id. at 1133b17ff.

[FN61]. In this paragraph, I present Aristotle's argument in the form set oht by Meikle, supra note 59, whose entire
discussion I have found very instructive.

[FN62]. Aristotle, N.E., supra note 59, at 1133b20ff (emphasis added).

[FN63]. Id. at 1133b7ff.

[FN64]. Id. at 1133b18ff. The bracketed additions have been inserted by Meikle.

[FN65]. Karl Marx, Capital I 59 (Samuel Moore & Edward Aveling trans., 1967).

[FN66]. For a fuller discussion of the view that Aristotle regarded commensurability as a problem unsolved rather
than as something inherently impossible, see Meikle, supra note 59, at 60.

[FN67]. Part II revises and considerably expands the arguments presented in my article, The Priority of Abstract
Right and Constructivism in Hegel's Legal Philosophy, in Hegel and Legal Theory, 174-204 (Drucilla Cornell et al.
eds., 1991).

[FN68]. For Hegel's use of the term "personality," see G.W.F. Hegel, Philosophy of Right §§ 35, 36 (Thomas M.
Knox trans., 1952) [hereinafter Hegel, P.R.].

[FN69]. Id. §§ 33, 36.

[FN70]. "The two main concepts of ethics are those of the right and the good; the concept of a morally worthy
person is, I believe, derived from them. The structure of an ethical theory is, then, largely determined by how it
defines and connects these two basic notions." Rawls, Theory, supra note 1, at 24.

[FN71]. A conception of the standpoint of the normative which has these or similar features must, I think, be
presupposed if there is to be a moral, in contrast to a natural-scientific standpoint. Thus, to take two very different
theories of law and morals, the practical philosophy of Kant and the pure theory of Kelsen explicitly make such a
conception their starting point. See, e.g., Immanuel Kant, Critique of Practical Reason 52-59 [51-58] (Lewis Beck
trans., 1956); Hans Kelsen, The Pure Theory of Law, ch. I (Max Knight trans., 1967). See also Henry Sidgwick,
Introduction §§ 1-2, The Methods of Ethics, bk. I, ch. I (7th ed., 1981) (forward by John Rawls).

[FN72]. Note that the claim here is not that normative judgments do not refer to matters of fact (clearly they do), or
even less that the standpoint of the normative ("what ought to be") does not itself constitute a reality that is. On the
contrary. My point is simply this: That, from the standpoint of the normative, something is if its intelligibility
consists in its being conceived under the aspect of choice, judged in terms of validity or rightness or value. To
explain something as a causally determined effect is not to understand it in this way. On the self-sufficiency (and
limits) of the standpoint of the normative, see Michael Oakeshott, Experience and Its Modes 283-85, 299ff (1933).

[FN73]. Here, I draw on a contrast set out by Rawls. See John Rawls, Kantian Constructivism in Moral Theory, 77
J. Phil. 515, 554-72 (1980) [hereinafter Rawls, Kantian Constructivism]; John Rawls, Themes in Kant's Moral
Philosophy, in Kant's Transcendental Deductions 81-113, especially 95-102 (Eckart Förster ed., 1989) [hereinafter
Rawls, Themes].

[FN74]. The conception of constructivism presented here is found most carefully and completely worked out in the
practical philosophy of Kant and especially that of Hegel, and more recently in Rawls's account of a political
conception of justice for the basic structure. For Rawls's conception, in addition to the writings cited in note 73 see
also Rawls, The Basic Structure, supra note 13, at 47-50 (discussing the idea of a sequence of kinds of subjects
which, in a constructivist approach, provides unity for the distinct principles that apply to different subjects.) I must
emphasize that the justification of constructivism relative to other conceptions of the normative is beyond the scope
of the present Essay. In my view, Kant's Critique of Practical Reason and Hegel's Encyclopedia remain perhaps the
most significant systematic contributions to this task. Absent such justification, the constructivist conception of the
normative can only be postulated, as I do here.

[FN75]. The idea of free will, as presented in this Essay, involves the possibility of our acting so as to give
expression in the here and now to a conception of ourselves as free, purposive beings. See Rawls, Theory, supra note
1, at 255-56 (discussing this idea of expression).

[FN76]. On the distinction between theoretical and practical thinking, as these terms are used here, see G.W.F.
Hegel, Philosophy of Mind, ¶¶ 443, 469 (William Wallace & A. Miller trans., 1971); G.W.F. Hegel, The
Philosophical Propaedeutic 1-3, 10 (A. Miller trans., 1986); see also Heinrich W. Cassirer, A Commentary on Kant's
Critique of Judgment 3-7, 68-78 (1938). I have discussed Kant's conception of practical reason in Peter Benson,
External Freedom According to Kant, 87 Colum. L. Rev. 559 (1987).

[FN77]. This formulation is Oakeshott's. See Oakeshott, supra note 72, at 251ff.

[FN78]. See Rawls, Themes, supra note 73, at 99. See also Oakeshott, supra note 72, at 269. "Practical experience ...
involves a certain conception of the self or person ... and this conception is not so much a construction of practical
thought ... as a presupposition of action." Id.

[FN79]. Here, I draw on Hegel's discussion of free will in Hegel, P.R., supra note 68, §§ 5-7. A similar view is
found in Michael Oakeshott, On Human Conduct 35-40, (1975). It is interesting to note that while Hegel undertakes
the systematic validation of the idea of free will in his Logic and Philosophy of Mind, he does not attempt any such
demonstration in the Philosophy of Right. In the latter, he assumes simply that the reader can, on reflection, discover
that its essential features are latent in and presupposed by his or her everyday moral experience as a thinking,
responsible agent. See Hegel, P.R., supra note 68, § 4. For the purposes of this Essay, I shall do the same.

[FN80]. I here use the term "negative freedom" in the sense defined by Kant. See Kant, The Metaphysics of Morals,
supra note 24, at 42 [214].

[FN81]. Again, I use this term as it was understood by Kant. Id.

[FN82]. This understanding of free will may usefully be compared with Harry Frankfurt's account. Harry Frankfurt,
Freedom of the Will and the Concept of a Person in Free Will 81 (Gary Watson ed., 1982). Although there is much
to say about this interesting piece, I will limit my remarks to just certain aspects of his discussion of the concept of
the person.
According to Frankfurt, an essential characteristic of a person is the capacity to form volitions of the second
order: in addition to having an effective desire to have (or not have) certain desires and motives. Persons are, in
Frankfurt's words, "capable of wanting to be different, in their preferences and purposes, from what they are." Id. at
82-83. He views the capacity for forming second-order volitions as resting on or as implying the following
conditions, among others. First, it presupposes what he refers to as a "capacity for reflective self-evaluation" Id. at
83, 89, in virtue of which an agent has an "identity apart from his first-order desires." Id. at 88. Second, there must
not be an unresolved conflict among someone's second-order desires; otherwise, agents can have no preference, and
so no second-order volition, concerning which of their first-order desires is to be their will. Frankfurt holds that
there must be, whether implicitly or explicitly, a decisive coimmitment on the part of an agent to this or that first-
order desire, for this alone rules out a move to higher-order desires which, being theoretically without limit, would
lead to the destruction of the person. Id. at 91. This commitment, Frankfurt emphasizes, need not express a moral
stance toward one's first-order desires. On the contrary, persons may be "capricious and irresponsible in forming
[their] second-order volitions ... [t]here [are] no essential restrictions on the kind of basis, if any, upon which they
are formed." Id. at 89 n.6.
The constructivist conception of the person also postulates as fundamental an agent's capacity to have an
identity apart from his or her first-order desires. This is what the first aspect, namely, the capacity to abstract from
everything given, accomplishes. It parallels Frankfurt's idea of the capacity for reflective evaluation, which, he says,
implies a power to withdraw from first-order desires. Id. at 88. However, in contrast to Frankfurt's account, the
constructivist conception preserves this standpoint of abstraction in the very choice of the object to be willed. In
other words it carries through the very condition sine qua non of volitions of the second order. This means that,
contrary to what Frankfurt contends, the choice of the object to be willed cannot be made just on any basis.
This difference between the two approaches is crucially important. It enables the constructivist conception to
avoid a difficulty which, in my view, is fatal to the other. Let me explain. We saw that Frankfurt's account of the
formation of second-order volitions must be able to explain why a move to higher-order desires is reasonably ruled
out. But the fact that an agent has identified him or herself decisively with a first-order desire just on any basis will
not suffice. For the agent's capacity to withdraw, which is an essential condition of the formation of second-order
desires, can with equal right be applied to a second-order desire of this kind. If the agent's attachment-however
decisive-is merely a subjective preference as Frankfurt contends, the commitment must be purely arbitrary in the
face of the agent's power of withdrawal, which is, it must be emphasized, the basis of the agent having an identity
apart first-order desires and thus of him or her being a person at all. To avoid this consequence, what is needed is a
basis for choice that rules out the move from one order of desires to another ad infinitum. On Frankfurt's own view,
this can only be accomplished by basing choice on a standpoint that cannot itself be withdrawn from. In this way
alone can the standpoint count as objectively necessary or authoritative from the practical point of view. But this is
precisely what the constructivist conception, and in particular its elucidation of negative and positive freedom,
attempts to do.

[FN83]. Hegel, P.R., supra note 68, § 4.

[FN84]. The notion of moral objectivity that I am invoking here is presented and explained more fully by Rawls. See
Rawls, Themes, supra note 73, at 100- 01; Rawls, Theory, supra note 1, at 513-20.

[FN85]. The practical self ... is known, in the first place, as something contrary to and exclusive of its world. And
this contrariness is selected as the principle of its individuality. It is determined, not by the inclusion of all that
belongs or is related to it, but by the exclusion of all that can be shown to stand outside [it]. It thus appears, first of
all, in opposition to an environment of things and other selves, determined upon the same principle. The practical
self is surrounded by a world of others; but it is real and individual because it can maintain its independence and
separateness.
Oakeshott, supra note 72, at 269-70. Hegel refers to the person as "exclusive individuality" related to "an
external world directly confronting it." Hegel, P.R., supra note 68, § 34. On the analysis of agency as an intelligent
response to an understood specific situation itself constituted by particulars, see Oakeshott, supra note 79, at 39-46.
It is important to bear in mind that, on the constructivist view presented in this Essay, the self's merely negative
relation of independence to particularity is only characteristic of a specific form of the conception of the person,
namely, personality. Once, however, particularity properly can be construed from the standpoint of the normative as
something that is not merely given to the choosing self, the relation between the two will no longer be simply
negative. I briefly discuss the transition to the inclusion of particularity in Part IV of this Essay.

[FN86]. Hegel, P.R., supra note 68, § 35.

[FN87]. I take this term from Rawls and intend it to be understood in the same way. See John Rawls, The Basic
Liberties and their Priority, in 3 Tanner Lecturers 13-16 (S. McMurrin ed., 1982) [hereinafter Rawls, The Basic
Liberties].

[FN88]. Here, I am addressing Adrian Piper's criticism of the purported necessity of framing the embodiment of
personality in terms of ownership, rather than in terms, say, of "action" or some form of "expressive" activity. See
Adrian Piper, Property and the Limits of the Self, 8 Pol. Theory 39 (1980). The answer to all such objections is that
whichever determinate factor one wishes to select as the medium through which personality is to be given
specificity, its normative significance consists in its subsumption under the categories of personality and usable
things.

[FN89]. This and the preceding paragraphs draw on Kant's elucidation of what he calls "the juridical postulate of
practical reason" in Kant, Metaphysics of Morals, supra note 24, at 68-69 [246-47] as well as on Hegel's derivation
of the "absolute right of appropriation which man has over all 'things"' in Hegel, P.R., supra note 68, § 44. Kant
refers to the juridical postulate of practical reason as a "permissive principle (lex permissiva) of practical reason." Id.
(emphasis added). The conclusion reached in this Essay that rightful possession of things must be morally possible
or permissible is thus consistent with his characterization.

[FN90]. In the political conception of the person, citizens are regarded as having two moral powers, namely: A
capacity for a sense of justice (that is, a capacity to understand, to apply and to act from the principles of justice) and
a capacity for a conception of the good (that is, a capacity to have, to revise, and rationally to pursue a conception of
the good). See Rawls, The Basic Liberties, supra note 87.

[FN91]. As Rawls suggests. See Rawls, Social Unity and Primary Goods, in Utilitarianism and Beyond 159-85,
especially 168-69, 171 (Amartya Sen & Bernard Williams eds., 1982) [hereinafter Rawls, Social Unity and Primary
Goods].

[FN92]. In contrast, the first principles of justice that regulate the basic structure are, in Rawls's account, designed in
this way, and their derivation directly presupposes certain ideas of the good. See, e.g., John Rawls, The Priority of
Right and Ideas of the Good, 17 PAPA 251-76, especially 253-58 (Fall 1988). By "primary goods" Rawls means
... various social conditions and all-purpose means (e.g., basic liberties, income and wealth, freedom of
movement and free choice of occupation] that are generally necessary to enable citizens adequately to develop
and fully exercise their two moral powers, and to pursue their determinate conceptions of the good .... These
goods are things citizens need as free and equal persons living a complete life; they are not things it is simply
rational to want or desire, or to prefer or even to crave.
Rawls, Restatement, supra note 1, § 15.

[FN93]. On this point, Kant and Hegel agree. See Hegel, P.R., supra note 68, § 104; Kant, The Metaphysics of
Morals, supra note 24, at 57 [232].

[FN94]. Rawls's theory of justice may be taken as an example of a political conception.

[FN95]. The classic example of a teleological theory of rights is that of John Stuart Mill. See John Stuart Mill,
Utilitarianism ch. 5 (George Sher ed., 1979). A recent example is L.W. Sumner, The Moral Foundations of Rights,
ch. 6 (1987).

[FN96]. I have in mind here the theories of John Rawls and Alan Gewirth.

[FN97]. I take this term from Kant. See Kant, The Metaphysics of Morals, supra note 24, at 57 [232].

[FN98]. This standpoint is reflected in private law's adoption of the so-called objective standard in determining
liability for breach of contract, tort, and unjust enrichment. In this conception of entitlement, we see that there is an
essential connection between publicity and coerceable right, something that is a central requirement in the political
theories of Kant, Hegel, and Rawls.

[FN99]. For both Kant and Hegel, the conception of entitlement that rests on personality necessarily entails a right to
coerce. See Kant, The Metaphysics of Morals, supra note 24, at 57-8 [232-3]; see also Hegel, supra note 68, § 94. To
justify this conclusion, it would be necessary to explain not only why a coercive act is permissible in response to the
violation of the entitlement but also how it alone qualifies as a correction of the infringement and as a vindication of
the entitlement, given the specific character of this conception of entitlement. I touch briefly on certain aspects of
these matters in Part IV of this Essay. But the discussion does not purport to be complete. Hegel's very careful and
instructive treatment of these questions is in P.R., supra note 68, §§ 82-101.

[FN100]. "[T]he capacity to be a legal subject is a purely formal capacity ... [which] qualifies all people as being
equally 'eligible for property', but in no way makes property-owners of them." Evgny Pashukanis, Law and
Marxism: A General Theory 127 (Chris Arthur ed., 1978). At this point in the constructivist account, a stronger
conclusion cannot be justified. It is essential to keep in mind that personality acquires specity in the here and now
just through persons having a capacity for ownership, through individual ownership being morally possible, not
through their possessing external things as such, that is, through ownership being morally necessary. And it is only
this capacity that must be respected as an end in itself. The mode of giving specificity to personality, like personality
itself, is something that is wholly normative in nature, its particular normative character lying in the fact that it is the
independence of personality-and it alone-that is given determinacy through it.

[FN101]. This conclusion is not inconsistent with Rawls's own view since he writes that "primary goods are not to
be used in making comparisons in all situations but only in questions of justice which arise in regard to the basic
structure." Rawls, Social Unity and the Primary Goods, supra note 91, at 163 (emphasis added).

[FN102]. G.A. Cohen has objected against Nozick that "Nozick must suppose that the world's resources are, morally
speaking, nothing like jointly owned, but very much up for grabs, yet, far from establishing that premise, he does not
even bother to state it, or show any awareness that he needs it." Cohen, supra note 14, at 130. My remarks may be
viewed as an effort to show why original joint ownership cannot be explained on the basis of the pure entitlement
conception of abstract right, and indeed why it is incompatible with it.

[FN103]. Kant, The Metaphysics of Morals, supra note 24, at 57 [232]. Abstract right thus represents strict right
which, according to Kant, has to do "first, only with the external and indeed practical relation of one person to
another, insofar as their actions, as facts, can have (direct or indirect) influence on each other. But, second, it does
not signify the relation of one's choice to the mere wish (hence also to the mere need) of the other, as in actions of
beneficence or callousness, but only a relation to the other's choice. Third, in this reciprocal relation of choice no
account at all is taken of the matter of choice, that is, of the end each has in mind with the object he wants; it is not
asked, for example, whether someone who buys goods from me for his own commercial use will gain by the
transaction or not. All that is in question is the form in the relation of choice on the part of both, insofar as choice is
regarded merely as free, and whether the action of one can be united with the freedom of the other in accordance
with a universal law." Id. at 56 [231].

[FN104]. Characterization of the juridical in these terms is not only found in the natural law and natural right
traditions of legal philosophy but also, for example, in the Marxist theory of law. See, e.g., Karl Marx, Grundrisse
243ff (Martin Nicolaus trans., 1973) [hereinafter Marx, Grundisse]. This characterization is also explicitly made in
the important work of the Soviet theorist Evgeny Pashukanis. In Pashukanis, General Theory, supra note 100,
Pashukanis identifies the specific difference of the legal (as opposed to the ethical, aesthetic, or moral) norm in
terms of the conception of the person that it presupposes: a separate subject endowed with a purely formal capacity
for ownership, whose rights are nothing but the correlative obligations of others towards him or her. The juridical
element in human relations and regulations is thus present wherever their basic element is this conception of the
person. For Pashukanis, "[the] contradistinction between thing and subject provides the key to an understanding of
the form of law." Id. at 111 (emphasis added).

[FN105]. I presuppose here familiarity with Rawls's account of the original position. See Rawls, Restatement, supra
note 1, §§ 6, 23-26; Rawls, Theory, supra note 1, §§ 4, 20-25.

[FN106]. See, e.g., Cohen, supra note 14, at 128ff; Kymlicka, supra note 14, at 107-25.

[FN107]. See, e.g., Barnett, supra note 3, at 284; Nozick, Anarchy, supra note 5, at 64-65.

[FN108]. Hegel, P.R., supra note 68, § 47. What constitutes one's "body" is a question that I shall not address in this
Essay. For present purposes, it will have to be sufficient simply to assume that it includes what we ordinarily view
as physiological as well as psychological aspects. I wish to add, so as to avoid any misapprehension, that the fact
that I discuss personality in terms of an actual power to abstract or that I refer to the corporeal existence of
personality in a way that seems to assume a bodily organism which is actually capable of advanced functions is not
intended to settle the very important question of what forms of human life qualify as personality. Whether or not, for
example, the severely handicapped, children, or the unborn are to be viewed as juridical subjects who must be
respected in accordance with the requirements of abstract equality is a matter that must be investigated in its own
right. I will not pursue it here. It does seem, however, more in keeping with our ordinary understanding of the
significance and the basis of rights to hold that unconditional respect is owed any being that will in due course
acquire the minimal purposive capacity of personality, abstraction made from all contingencies, whether temporal or
otherwise. The clearest statement I have found of this view is by Alexandre Kojève, the great Marxist political
philosopher. See Alexandre Kojève, Esquisse d'une Phénoménologie du Droit 49ff (1981). Rawls seems to hold a
similar view. See Rawls, Theory, supra note 1, at 509. Finally, to avoid possible misunderstanding, I wish to
emphasize that on the basis of abstract right one can say that the answer to "What beings must always be treated as
ends in themselves?" is conceptually distinct from (but certainly connected with) the answers to "In what
circumstances is a negative duty owed to such beings?" and "What is the proper scope of the duty?". Keeping these
distinctions in mind is, in my view, crucial to a proper analysis of difficult current issues such as that of abortion.

[FN109]. This assumption is no more problematic from the standpoint of the normative than is the assumption of the
possible physical existence of things. In neither case is normative significance derived directly from or reducible to
these matters of fact. As I tried to explain in Part II(B), personality refers to a mode of being that exhibits
unconditional (because self-conscious) self-relatedness, rather than to the various possible physical entities that may
embody this feature.

[FN110]. In Kant's words, "[A] man can be his own master (sui juris) but not the owner of himself (sui dominus),
(cannot dispose of himself as he pleases) ...." Kant, The Metaphysics of Morals, supra note 24, at 90 [270].

[FN111]. "Inborn right (angeborne) is effectively a right to the use of one's own body." Immanuel Kant,
Vorarbeiten, XXIII, 286-304, quoted in Susan Shell, The Rights of Reason: A Study in Kant's Philosophy and
Politics, 129 (1980). See also Mary Gregor, Kant's Theory of Property, Review of Metaphysics, vol. XLI, no. 4, at
757-87, especially 773-74 (1988).

[FN112]. An act of suicide, taken by itself, also instantiates this identity and so does not violate abstract right. Nor is
the resulting destruction of the person in itself incompatible with it. For this would presuppose that the existence of
persons is, as such, something that is necessary from the standpoint of abstract right. But the purely negative
conception of obligation in abstract right cannot justify such a requirement. It follows that, in abstract right, there
can be no duty against committing suicide. Strictly speaking, suicide does not constitute a wrong. On the other hand,
persons do not have a (claim) right to end their lives, if by this it is implied that their lives are things, something that
can be alienated or abandoned. Suicide is a mere liberty in the Hohfeldian sense. On this analysis, therefore, a state
does not necessarily violate the abstract right of individuals by prohibiting suicide.

[FN113]. Single products of my particular physical and mental skill and of my power to act

I can alienate to someone else and I can give him the use of my abilities for a restricted period, because, on
the strength of this restriction, my abilities acquire an external relation to the totality and universality of my
being. [However] [b]y alienating the whole of my time, as crystallized in my work, and everything I produced, I
would be making into another's property the substance of my being, my universal activity and actuality, my
personality.
Hegel, P.R., supra note 68, § 67. This passage is quoted with approval in Marx, Capital I, supra note 65, at 168.

[FN114]. This limit is recognized at common law by the absence of a general duty to rescue others in peril and is
reflected in the principle that there is no liability for mere nonfeasance.

[FN115]. This principle, it will be recalled, holds that a person who, through an external manifestation of will, has
brought something under his or her present and exclusive control prior to others is, relative to those others, entitled
to it in corrective justice. Because the principle refers to a manifestation of will and purports to stipulate a test for
acquisition, it does not, at first blush, seem to be reflected in the requirement to respect another's bodily integrity.
However, this is not so. Because the right to one's body is innate, one is necessarily already in rightful possession of
it prior to others. In this way at least, the right instantiates the principle.

[FN116]. Kant, The Metaphysics of Morals, supra note 24, at 68 [246]. I discuss the concept of intelligible
possession in Benson, supra note 76, at 573-74. See also Gregor, supra note 111, at 774.

[FN117]. This point is made by Hegel, P.R., supra note 68, § 49, and by Rawls, Theory, supra note 1, at 102.

[FN118]. This objection applies the first step in Rawls's argument for the difference principle to relations that are to
be governed by abstract right. The difficulty with it is that it fails to tailor its argument to the specific conceptions of
the person and of entitlement in abstract right. Rawls himself intends the argument to hold only for the basic
structure of a well-ordered society. Rejection of the argument in the present context of abstract right is thus not
inconsistent with Rawls's own political conception of justice.

[FN119]. Hegel emphasizes abstract right's indifference to quantity and quality. See Hegel, P.R., supra note 68, §
49. Compare Hegel's view with Kant's: "[The] complete equality of men as subjects in a nation is completely
consistent with the greatest inequality in the quantity and degree of possessions they have, whether these be physical
or mental superiority over others, or fortuitously acquired external goods ...." Immanuel Kant, On the Proverb: That
May Be True in Theory But Is of No Practical Use, in Perpetual Peace and Other Essays 73 (Ted Humphrey trans.,
1983) (hereinafter Kant, Theory and Practice].

[FN120]. Jeremy Waldron and Allen Wood interpret Hegel's view of property in a way that makes it incompatible
with this conclusion. See Waldron, supra note 14, at 370ff.; Allen Wood, Hegel's Ethical Thought 106-07 (1990).
Since I believe that the argument presented in this Essay is most fully in accord with Hegel's, I would like to
consider briefly the basis of their quite different interpretation.
Waldron and Wood suggest that Hegel's account of abstract right commits him to the view that respect for
personality requires that everyone must have some property. As textual support for their claim, they refer to
paragraph 49, where Hegel says:
Of course men are equal, but only qua persons ... the inference from this is that everyone must have
property. Hence if you wish to talk of equality, it is this equality which you must have in view. But this equality
is something apart from the fixing of particular amounts, from the question of how much I own. From this point
of view, it is false to maintain that justice requires everyone's property to be equal, since it requires only that
everyone shall own property.
Waldron, supra note 14, at 350, 382, 384; Wood, supra at 107. Interpreted in context, however, this passage does
not, I think, support their contention. Hegel is explicitly addressing here the following question: Assuming that
persons in fact have holdings, does respect for personality require that they have equal amounts? His answer is
simply that whatever amount each may have is consistent with their equality, since particularity (how much or what
kind) is a matter of complete indifference so far as abstract right is concerned. Hegel is not discussing the different,
albeit related, question of whether propertylessness violates the equality of persons.
More fundamentally, when Hegel says that "everyone must have property," what does he mean? This, I think:
that actual, physical possession by someone must always be treated as the mode in and through which equal
personality is "embodied" that is, made specific, rather than as a means to the satisfaction of the possessor's
particular needs, interests and so forth; that is, "possession" must be viewed as "property," "the true and right factor
in possession." Hegel, P.R., supra note 68, ¶45. Everyone is treated equally, then, just insofar as his or her
possession is regarded from this standpoint. Hegel's point here, according to his own explanation, is "concerned with
the proposition that personality must be embodied in property." Id. at ¶50, Framed in terms of an entitlement, this
proposition becomes: Each person has "the right of putting his will into any and every thing and thereby making it
his." Id. at ¶44. But, in keeping with personality's independence from particularity, abstract right, as Hegel
emphasizes, is to be conceived in negative terms, as a mere permission or warrant. Id. at ¶¶37, 38. Hence,
personality, which "essentially involv[es] the capacity for rights," id. at ¶ 36., implies merely that persons should be
"capable of holding property." Id. at ¶66. (emphasis added). The requirements "everyone must have property" and
"personality must be embodied" guarantee the possibility rather than the necessity of actual possession. The
normative necessity entailed by the "must" in these two propositions is always to be construed consistently with the
abstract standpoint of personality.

[FN121]. E.g., Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1892 (1987); Waldron, supra
note 14, at 367ff.

[FN122]. For the purposes of presentation, I have mentioned here, in connection with the right of alienation, only
those things that can be acquired by first occupancy. However, as I have already suggested in note 113, supra, and
accompanying text, it is certainly possible for persons to distinguish themselves from some limited aspect of their
powers or activity and thus treat it as a thing. It would be theirs to alienate in virtue of their innate right to bodily
integrity. An example of this, mentioned above, would be a temporally limited exercise of one's skill; the use of this
"thing" could be alienated to another.
It must be stressed that unless one can, qua person, genuinely differentiate oneself from an aspect of one's
corporeal existence, the aspect can be treated neither as a thing nor as alienable. Thus, one's corporeal existence,
understood as being an undivided whole, cannot as such be alienated. And more generally, anything that is
constitutive of personality or that essentially shares its form of unconditioned self-relatedness is, by abstract right,
inalienable: such modes of freedom should be treated neither as things nor as alienable and, being self-related, they
ought not, in themselves, to be subject to coercion. In this way, abstract right includes, as one of its essential
features, a distinction between the alienable and the inalienable. If, as I argue in Part IV, abstract right must be
viewed as lexically first, this distinction must be incorporated into and respected by all other normative categories
that are rooted in free agency as interpreted on a constructivist approach. In Part IV, I discuss briefly what this
implies for a conception of distributive justice.

[FN123]. In Benson, Contract Law and Corrective Justice, supra note 49, I attempt a more complete and detailed
answer, which I present in relation to the principal doctrines of the common law of contract.

[FN124]. Kant, The Metaphysics of Morals, supra note 24, at 93 [274].

[FN125]. This formulation is Kant's. Id. at 92 [272]. At common law, the required acts of offer and acceptance must
be successive in time or else they will be viewed as two cross offers which do not bring a contract into existence.
See, e.g., Tinn v. Hoffman and Company [1873] 29 L.T.R. 271 (Ex. Ch.) (Brett J.).

[FN126]. At common law, for instance, the offer (unless retracted or expired) is deemed by a legal fiction to be
continuously made up to and including the moment of acceptance. At the very moment of acceptance, then, the offer
is viewed as also being made. Both acts are represented as co-present. But, in interpreting the parties' acts as
simultaneously made, the law cannot be referring to their place in time, for this would contradict its view (already
mentioned in note 125, supra) that the acceptance must follow the offer in temporal sequence. So the law must mean
this representation of the parties' acts to be understood in non-temporal terms. In my Essay, Contract Law and
Corrective Justice, supra note 49, I try to show that the main doctrines of contract law incorporate this non-temporal
standpoint, in keeping with the law of continuity.

[FN127]. The conception of value presented here is found, for example, in the work of Hegel and Marx and goes
back to Aristotle. Marx's discussion of the form of value in the first chapter of Capital is the most detailed and
careful exposition of this conception.

[FN128]. This idea is expressed by Marx in the following way: "[objects] exist as equals as long as they exist as
activity." Marx, Grundrisse, supra note 104, at 613.

[FN129]. To my knowledge, Hegel was the first thinker to explain systematically the principle of equivalence as an
essential juridical requirement that is integral to a nondistributive conception of contractual obligation. Hegel, P.R.,
supra note 68, § 77. I present his argument in Benson, Abstract Right, supra note 3, at 1187-96. For an excellent
discussion of the history of the recognition of this principle, in both legal theory and practice, see Gordley, supra
note 3.

[FN130]. Note that I do not say that the right to an equivalent can be voluntarily waived in a permanent or otherwise
unlimited way. As I try to explain in Part IV, this would be incompatible with the inalienability of the right of
ownership, which right, I have argued here, includes the right to transact in accordance with the principle of
equivalence.

[FN131]. This formulation is basically consistent with that of Grotius and Hegel. See Grotius, supra note 8, bk. II,
ch. 12, at 344; Hegel, P.R., supra note 68, §§ 76, 77, 80. On the analysis suggested here, both gift and exchange
would have to satisfy, for example, the common law requirements of consideration and of offer and acceptance,
assuming that these are integral to the elucidation of contract as a transfer of ownership. One might think of a
contract for a purely nominal consideration as an instance of gift, as defined here. I discuss these matters in detail in
Contract Law and Corrective Justice, supra note 49.

[FN132]. I am differing here from the prevailing scholarly view that a principle of contractual fairness, which goes
beyond the tradition defences of duress, fraud, and misrepresentation, must be distributive in conception. See, e.g.,
Sandel, supra note 3, at 105-09 (1982); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89
Harv. L. Rev. 1685, 1778 (1976); Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763,
770-74 (1983); Arthur Leff, Thomist Unconscionability, 4 Can. Bus. L.J. 424 (1980); Unger, supra note 3, at 561,
625-30. I discuss the views of Sandel and Kronman in some detail in Benson, Abstract Right, supra note 3, at 1092-
95, 1119-45. A still influential and lucid judicial decision which, in my view, recognizes the nondistributive
conception of contractual fairness presented here is that of Lord Denning, M.R., in Lloyd's Bank v. Bundy, [1974] 3
All E.R. 757, 763-66 (C.A.). A good account of the principle is Hugh Beale, Inequality of Bargaining Power, 6
Oxford J. Leg. Stud. 123, 123-36 (1986). Finally, it is interesting to note that Marx viewed equivalence in exchange
as a normal, nondistributive requirement. Indeed, he set himself the theoretical task of explaining the generation of
surplus-value, with the resulting distinction between capitalist and wage-labourer, on this presupposition. Marx,
Capital I, supra note 65, at 156ff.

[FN133]. At common law, the standard measure of equivalence is the relevant available market price determined
under conditions of perfect competition. This, of course, is an ideal. Whether or not this standard is the appropriate
one to apply in cases of contract is something I will not discuss in this Essay. I do so in Contract Law and Corrective
Justice, supra note 49. For a very interesting account of the significance and the suitability of the market price
standard, see Gordley, supra note 3, at 1609-17.

[FN134]. The points just made can be formulated on the basis of Marx's distinction between use-value and
exchange-value. See Marx, Capital I, supra note 65, at 157. The contrary view, or one similar to it, is held by writers
such as Nozick, Barnett, Epstein, and Winfield. In keeping with this view, they would deny that there ought to be a
principle of contractual fairness that is distinct from the traditional defences of duress, fraud, and misrepresentation.
For references to Nozick and Barnett, see supra note 107; Epstein, supra note 3, at 293; Richard D. Winfield, With
What Must Ethics Begin? Reflections on Benson's Account of Property and Contract, 11 Cardozo L. Rev. 537, 546-
47 (1990).

[FN135]. The account of derivative acquisition I have presented is, I believe, quite compatible with, and indeed
exemplifies fully, the principle of entitlement that I proposed in Part I in connection with the Aristotelian
understanding of corrective justice. Given that contract entails a transfer of ownership, the requirement of temporal
priority is satisfied if, first of all, there is an alienation of ownership by the party who at the start of the interaction is
in rightful possession of the thing: for, as a consequence of his or her act of alienation, the initial owner can no
longer claim to be in rightful possession prior to the other party, who is now able to bring the thing under his or her
exclusive control prior to the former owner. The analysis of derivative acquisition, we saw, presupposes this
sequence. For its part, the postulate of continuity neither contradicts the sequence nor denies its necessity. Rather, it
simply makes explicit the normative significance of the reference to temporal priority. As we saw in the discussion
of the principle of first occupancy, its significance comes to this: reference to temporal priority is made because, in
the relevant contingent circumstances, it signifies that a person's capacity for ownership has already been exercised
in a way that must be respected by others as an end in itself. We saw, furthermore, that in virtue of the abstract
equality of persons, each is equally under an identical duty to respect what is already another's. The postulate of
continuity merely states the condition under which a voluntary interaction, taken by itself, can exhibit this meaning.
Construed in accordance with continuity, the interaction (although established through successive acts of will) is
represented as irreducibly relational, the relation being constituted by each party having property only insofar as he
or she recognizes something to be already the other's property. And, as I have already tried to explain, the postulated
simultaneity of mutual recognition is not to be understood in temporal terms; on the contrary, it presupposes the
complete abstraction from all temporal conditions. Consequently, at no point does the analysis of derivative
acquisition contradict the requirement of temporal priority.

[FN136]. Rawls's argument for the primacy of the basic structure is set out most explicitly in Rawls, The Basic
Structure, supra note 13, and most recently in Rawls, Restatement, supra note 1, §§ 16, 17. I draw on both sources in
the following discussion.

[FN137]. Rawls, The Basic Structure, supra note 13, at 53.

[FN138]. I think that this first interpretation is indeed Rawls's view. Rawls supposes throughout the idea of society
as a fair system of cooperation and asks: What ought to be the primary subject of justice when we take seriously this
idea of society? See, e.g., Restatement, supra note 1, § 17.

[FN139]. Anthony Kronman holds this view. See Kronman, supra note 3. Both the intelligibility and the basis of the
enforcement of claims arising in contractual relations must, according to Kronman, be framed in distributive terms.
He argues that Rawls's difference principle should be applied directly to transactions. One consequence of this view
is that there can no longer be a division of labour between principles, as proposed by Rawls. In a previous Essay, I
have tried to show in some detail why Kronman's argument is not satisfactory even in its own terms. Benson,
Abstract Right, supra note 3, at 1119-45.

[FN140]. As previously noted (see supra note 1), I take the term "lexical ordering" from Rawls. As I understand it,
the idea of lexical priority refers only to the place of a normative category or principle in the order of justification.
Thus, if one category or principle is lexically prior to another, the second must, as a condition of its own validity,
respect and incorporate whatever is essentially implied by the first. Accordingly, the claim made in this Essay about
the lexical priority of abstract right should be understood in these terms only. Moreover, as I have already indicated,
I do not purport to address here issues connected with the institutional realization of abstract right (or corrective
justice) as part of a legal or political order. Examples of this understanding of the term "lexical priority" are, I
believe, Kant's doctrine of the priority of right (as Rawls notes in Theory, supra note 1, at 43) and Hegel's
characterization of abstract right as the first stage of right in Philosophy of Right, supra note 68, §§ 33, 126, 129. For
both Kant and Hegel, the appropriate ordering of normative categories is essential to their validation as expressions
of unconditioned freedom. I should add to prevent what is likely to be a common confusion that the notion of lexical
priority does not imply that unless or until a given principle (deemed to be lexically prior) is perfectly or completely
satisfied in practice, one is barred from attempting to satisfy a second principle (which, it is assumed, has been
framed in terms that respect and incorporate the requirements of the first). The idea of lexical priority, because it has
to do with the appropriate order of justification and thus with a conceptual rather than with a temporal sequence,
does not challenge the moral truism that we are always subject to (and must therefore always try to satisfy) the
requirements of all normatively valid or justified principles.

[FN141]. Hegel, for example, explicates this condition in the section on civil society, under the rubric of "The
System of Needs." See Hegel, P.R., supra note 68, §§ 189-208.

[FN142]. See supra note 90 (stating the two moral powers).

[FN143]. The following remarks draw on Kant's explication of the "Transition from what is mine or yours in the
state of nature to what is mine or yours in a Rightful Condition Generally ..." Kant, The Metaphysics of Morals,
supra note 24, at 120-22 [306-308], and on Hegel's account of wrong and of the transition from abstract right to
morality in Hegel, P.R., supra note 68, §§ 82-104. I provide here only a sketch of the kind of argument that is
necessary. For a detailed and careful treatment of Kant's account of the transition from the state of nature to civil
society, see Leslie A. Mulholland, Kant's System of Rights, ch. 9 (1990).

[FN144]. I have already suggested why the capacity for a conception of the good cannot be postulated as a moral
power in abstract right. Strictly speaking, the same holds true for the capacity for a sense of justice which, according
to Rawls, implies that an agent can act not only in accordance with but also for the sake of justice. Given abstract
right's purely external character, it provides no basis for such a capacity. In abstract right, there is only the capacity
for abstraction (which is the condition of accountability) and a liability to coercion by others in response to a
perceived violation of their rights.

[FN145]. The necessity for a transition from abstract right to other categories of right may also be shown through an
analysis of the fact that abstract right is inherently and necessarily vulnerable to wrong. This analysis follows upon,
and draws out a consequence from, the conclusion that a distinction between what is mine and yours cannot be
finally established on the basis of abstract right alone. This further analysis in terms of wrong may be summarized as
follows.

Because, in abstract right, freedom does not consist in the realization of any ends (including right itself), it is
normatively a matter of chance whether or not an agent's particular choices respect the abstract equality of others.
Wrong consists in a particular external expression of choice that violates the abstract equality of persons. It is thus
an act of will that is incompatible with its own essential normative basis as free and responsible. For this reason, it is
intrinsically self-contradictory. However, a wrongful act, as an external manifestation of will, also has a positive
existence in the following sense: it alters the world and this alteration, being the outcome of an act of will, seems to
challenge the validity of right, which, on a constructivist approach, is always conceived as immanent to willing. This
alteration must be responded to in a way that shows it to be without validity. Given the external and other-directed
character of abstract right, this can only be done by another's will, a second act of will in response to the first. Only
in this way can abstract right be genuinely vindicated as something that is explicitly and actually valid.
But in abstract right this required reaction can be effected only through an individual's particular will and it is
here that abstract right generates a basic problem which it cannot solve with its own resources. Precisely because the
determinate aspect of willing (the will in its particularity) is as such not yet part of the will's freedom and
consequently can (normatively) be something merely arbitrary and subjective, individuals cannot annul wrong in a
way that objectively establishes it as invalid. Being subjective and contingent in form, the effort to annul wrong
must be inadequate to the universality and necessity of its import, and so it reasonably can be regarded by others as
itself a transgression. Because the standpoint of judgment in abstract right is public and relational, how something
appears to others expresses its essential character as such. Each response to wrong, entailing as it does the positive
action of a particular will, becomes in turn a new transgression that is self-contradictory in character and that
consequently needs to be annulled, and so on ad infinitum. The sphere of abstract right turns out again to be a
condition of wrong in the highest degree. The difference between right and wrong cannot be finally established. But
unless this difference is established, the right of personality cannot be vindicated. Hence, the need to go beyond
abstract right. See Hegel, P.R., supra note 68, §§ 82-103.

[FN146]. The constructivist account of abstract right presented in this Essay satisfies, I believe, Onora O'Neill's
requirement that a Kantian constructivism "must ... start from the least determinate conceptions both of the
[practical] rationality and of the mutual independence of agents." Onora O'Neill, Constructions of Reason:
Explorations of Kant's Practical Philosophy 212 (1989). I note further that my account of the basis of abstract right,
its first principles, and its priority in no way depends on any maximizing criterion (such as maximum equal spheres
of individual action or maximum equal liberty) or, in general, on any metric. It is framed solely in terms of
unconditional requirements of respect, the denial of which is inconsistent with a universality inherent in and specific
to free agency. In O'Neill's terms, my argument therefore qualifies as a constructivist account of obligations. Id. at
225ff. And, as such an account, it establishes the lexical priority of a species of perfect obligation (namely, abstract
right) while being consistent with the possibility of imperfect obligations (which, as O'Neill suggests, suppose the
intrinsic normative relevance of ends and needs).

[FN147]. Will Kymlicka's argument for collective rights, does not, in my view, meet this condition. See Will
Kymlicka, Liberalism, Community, and Culture (1989) (especially chapters 8 and 9). I discuss his view briefly in
Benson, The Priority of Abstract Right, Constructivism, and the Possibility of Collective Rights in Hegel's Legal
Philosophy, in The Canadian Journal of Law and Jurisprudence, vol. IV, no. 2, at 257, 286-91 (1991). See also John
R. Danley, Liberalism, Aboriginal Rights, and Cultural Minorities, 20 PAPA 168 (1991) (discussing Kymlicka's
view).

[FN148]. Rawls makes this an explicit basis of his account of the primary goods and of their fair distribution. See
supra note 91.

[FN149]. The idea is Kant's. See Kant, The Metaphysics of Morals, supra note 24, at 186 [381].

[FN150]. Kant calls a state that violates this condition a "paternal government (imperium paternale)" and
characterizes it as "the worst despotism we can think of ... [un]thinkable for men who are capable of having rights
...." Kant, Theory and Practice, supra note 119, at 73. In excluding reference to the content of persons' conceptions
of their good and in supposing only a "thin" theory of the good, Rawl's account of the original position is fully
consistent with this constraint.

[FN151]. Rawls's characterization of the parties in the original position as mutually disinterested and independent is
consistent with the form of abstract right. See Rawls, Theory, supra note 1, especially §§ 15, 25.

[FN152]. The inclusion of a right to the integrity (both physical and psychological) of the person in Rawls's first
principle of justice satisfies this requirement. See Rawls, Restatement, supra note 1, at 37, 161; see also Rawls, The
Basic Liberties, supra note 87, at 5.

[FN153]. As an example of this kind of limitation, I have in mind the application of coercion upon a wrongdoer
(depriving him or her of liberty or possibly of life) to vindicate the violated right of another.

[FN154]. A duty to risk one's life in the prosecution of a just war (to defend free institutions that recognize this and
other such rights) would arguably be an example of this second kind of limitation.

[FN155]. I wish to comment briefly on the phrase "where the presuppositions of abstract right alone obtain." In
saying "it so happens that where the presuppositions of abstract right alone obtain", I wish to emphasize the
following point which bears fundamentally on the challenge posed by contemporary entitlement theories to
egalitarian liberal conceptions of distributive justice. My claim is that the lexical priority of abstract right requires
that any and every thing be available for individual appropriation only when abstract right is considered independent
of other normative categories and apart from its own institutionalization as one sphere in the complex structure of
the modern state. In other words, the conclusion holds only in the state of nature. As I indicated in the Introduction,
when the question is whether there ought to be in institutional sphere that realizes corrective justice or whether the
state should recognize a regime of property ownership that is governed by the principles of first acquisition and
transfer, it may be necessary to bring into play normative considerations that go well beyond the merely abstract
(formal) equality of abstract right. For instance, the justification may have to invoke the idea that individuals should
have an adequate material basis for meeting their basic wants and for assuring their personal independence and self-
respect; that is, it may be essential to invoke a conception of citizens' legitimate needs. If this is the case, the lexical
priority of abstract right will not necessarily be infringed just because these other normative requirements set limits
to what can be appropriated by individuals or otherwise determine the sphere of application for the principles of
acquisition and transfer. Hence, the conclusion that "any and everything must be available for individual
appropriation" is not always required by the imperative to respect abstract right: It so happens that this is the case
when a certain condition-the state of nature-is presupposed.

[FN156]. Thus, abstract right does not definitely determine either the content or the scope of possible property
regimes. Accordingly, Rawls's view that a private right to own the means of production should not be included as a
basic liberty is, in principle, compatible with the priority of abstract right. See Rawls, The Basic Liberties, supra
note 87, at 12.

[FN157]. Stated in relation to American constitutional law, this conclusion means that judicial decisions of the so-
called Lochner era (which struck down laws regulating private transactions in the light of requirements of
background justice) cannot be justified on the basis of abstract right or its priority. See, e.g., Coppage v. Kansas, 236
U.S. 1, 17-18 (1915) (Pitney, J.). Nevertheless, I must emphasize here that the primacy of the basic structure must,
on the constructivist account I have presented, be explicated consistently with the priority of abstract right. To my
knowledge, Hegel is the only thinker who has attempted to show how this may be possible. He does so in the section
entitled Civil Society of his Philosophy of Right. I should add that it seems difficult, if not impossible, to conceive
how one could arrive at abstract right's absolutely bare conception of the person, its negative conception of
obligation, and its purely nondistributive first principles, if the beginning were to be made with distributive justice.
In other words, it does not seem possible to account for a division of labour between sets of principles, in the sense
envisaged by Rawls, unless the sequence through which the different normative categories are validated starts with
abstract right. Apart from this order, while the distributive conception might postulate certain requirements such as
respect for persons' abstract equality, for their capacity for rights and ownership, and so forth, it could not explicate
them as necessary and interconnected aspects of justice.

[FN158]. See Rawls, Restatement, supra note 1, § 21.

[FN159]. As previously discussed, the conception of entitlement in abstract right is permissive, and persons are not
obliged to exercise their capacity for ownership. See supra note 100 and accompanying text. Thus, they may
abandon or alienate things they already have. Moreover, they may waive or restrict their right to acquire things by
first occupancy or by contract. Such or restriction must, however, be limited in scope and extent. In this way, the
distinction between the capacity (which is inalienable) and its exercise can be preserved. If I were able to bind
myself to an unlimited restriction on my right to acquire, this would nullify my capacity as such, inconsistently with
its inalienability.

[FN160]. Hegel, P.R., supra note 68, § 5.

[FN161]. Thomas Scanlon's "Millian Principle" may be viewed as based on and as giving expression to the right of
self-consciousness as this pertains to the basic freedom of liberty of expression. It serves to limit in principle what
may be legitimately done through coercive laws. See Thomas M. Scalon, A Theory of Freedom of Expression in
The Philosophy of Law (Ronald Dworkin ed., 1977).

[FN162]. I shall draw on Hegel's discussion in Hegel, P.R., supra note 68, §§ 65-67.

[FN163]. Id. § 270R.

[FN164]. Benjamin Constant, The Liberty of the Ancients Compared with that of the Moderns in Political Writings,
309-28 (Biancameria Fontana trans. & ed., 1988) I say "in the first instance" because it is certainly arguable (as
Rawls contends) that among the basic rights or liberties will be political rights of association and other "liberties of
the ancients." See, e.g., Rawls, supra note 13, at 87. It seems clear that the elucidation of basic political liberties will
make reference to normative considerations going beyond the more circumscribed import of the right of self-
consciousness. The latter merely sets limits to what properly can be subject to coercive external authority.
Nevertheless, the considerations underlying the political liberties must be framed consistently with the right of self-
consciousness and with the form of equal, inalienable, and incommensurable negative liberty that is entailed by it.
This follows from the priority of abstract right.

[FN165]. By contrast, Nozick's account of basic liberties is incompatible with the priority of abstract right because it
does not treat them as inalienable.

[FN166]. In my view, Rawls's account of the liberties and their priority is by far the most important contribution to
this task.

[FN167]. I believe that this view of the basis of the priority of basic liberties is consistent with Rawls's own account
and must be, conceptually, its first or ultimate ground. See Rawls, The Basic Liberties, supra note 87, at 24-29. I
might add that, on this basis, it seems possible to make the general distinction, which is fundamental in Rawls's
theory, between an equal basic liberty and its worth or usefulness. Id. at 40ff.

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