libertarians hate to see me coming

    I genuinely enjoyed reading this, and I have to say, Ripstein's writing style really resonated with me. However, something kept nagging me throughout. I feel like his account just completely glosses over something that is so integral to our society, but I couldn’t put my finger on what that thing was. I had the same feeling with the Posner reading, and in both cases, I couldn’t help but think either I'm completely out of touch with reality, or these highly accomplished, incredibly smart people are (it’s definitely the latter). I’m going to lay out my argument fully here, but the tl;dr is that I think libertarians have EXCEEDINGLY tinted rose-colored glasses. 

    So, in the Hobbesian state of nature, there is no mechanism for shifting losses, as there is no authority to arbitrate ‘harm.’ Essentially, the cost of any loss is borne entirely by the person who incurs it, regardless of the cause (25). However, with the introduction of private property, there came a need for corrective justice to defend against violations of property rights. 

    The libertarian view is that only when one person causes injury to another should corrective justice be enforced. The libertarian is also unfriendly to the patterned theory of justice because it requires constant intervention, and is instead drawn to the historical theory of justice. The “idea of a historical theory of justice is that given starting conditions that are not themselves unjust… the resulting outcomes are themselves just (or at least not unjust)” (44). When dealing with the protection of property rights, the libertarian view is to “leave losses where they fall unless one person has caused another’s injury”, in which case they shift to that person. Ripstein explains this argument further by presenting the default view that “if a loss is no one’s doing, just the result of chance, it must lie where it has fallen” because “shifting a loss to someone who didn’t cause it is no different from causing a loss to someone else” (33). 

    The mobility of loss is an interesting concept, because Ripstein seems to be suggesting that justice, now that we have entered civil society, is wholly concerned with shifting losses only to correct harmful action. This implicitly assumes that, in the absence of harmful action, the default state is one that is just/requires no corrective action. This is the part of Ripstein’s account that I take issue with. 

    Firstly, the premises of the historical theory of justice confuse me. What happens when the norms of what is ‘just’ changes? Do certain ownerships cease to be ‘just’ retroactively, and must we then employ corrective justice? This does not seem to happen in today’s society (e.g. the issue of the dispossession of  Native American lands, or stolen wealth by way of colonization, to take the most obvious examples). Secondly, if this is not a retroactive process (i.e., if the way that a holding was procured in the past was considered just then, it does not matter if we consider it to be unjust now; ownership is still legitimate) then I question the neutrality of our ‘default’ state. We don’t generally undo past actions even when we acknowledge them as unjust, which raises the question of how fair our ‘default’ state really is. 

    If we are to accept Ripstein's notion that justice, when it is truly enacted, is about correcting harmful action, then we must also confront the reality that our current society operates unjustly, even without overt harmful actions in the present, and keeps many people at a structural disadvantage. If some people unintentionally benefit from a system that continuously exploits/harms some subgroup, this seems to be more than just ‘misfortune due to chance’. These individuals might not be consciously complicit in this exploitation, yet they are beneficiaries of a system that perpetuates inequality. But the libertarian ignores the fact that our default state is passively causing harm and therefore requires a constant shifting of losses (such as in the form of reparations).  

    Ultimately, my issue with Ripstein’s account is that it seems to assume that justice can be reduced to corrective action for individual harmful acts, without sufficiently considering larger, ongoing structural harms. The idea that the default state is just does not hold when we look at how inequalities are perpetuated over time, especially when historical injustices remain unresolved. In this context, the mobilization of loss through reparations and other corrective mechanisms may be a necessary response to an unjust default state that continues to passively cause harm.