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Private Property and Tax Policy in a Libertarian World: A Critical Review

Published online by Cambridge University Press:  20 July 2015

David G. Duff
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The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Locke’s argument in the Second Treatise of Government and Robert Nozick’s account in Anarchy, State, and Utopia. Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. Part IV criticizes libertarian theories of private property, casting doubt on tax thinking that relies on these libertarian foundations. Part V considers the implications of this critique for tax policy and tax scholarship.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 18 , Issue 1 , January 2005 , pp. 23 - 45
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Copyright © Canadian Journal of Law and Jurisprudence 2005

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References

1. See, e.g., MacRae, David, “Cut Taxes to Increase Revenues” Le Quebecois Libre (30 September 2000), online: http://www.quebecoislibre.org/000930-12.htm; Google Scholar and Harper, Stephen, Leader of the Conservative Party of Canada, “Address to the Frontier Centre for Public Policy” (17 May 2002) available at http://www.fcpp.org/publication_detail.php?PubID=759.Google Scholar

2. See Progressive-Conservative Party of Ontario, “The Common Sense Revolution” The Ontario PC Party (May 1994), online: Ontario PC Party http://www.ontariopc.com/feature/csr/csrtext.htm Google ScholarPubMed. See also Bush, George W., “George W. Bush on Tax Reform” On the Issues (4 November 2000) online: OnTheIssues.org—Candidates on the Issues http://www. issues2000.org/Celeb/George_W_Bush_ Tax_Reform.htm Google ScholarPubMed.

3. See, e.g., Cockfield, Art, “Income Taxes and Individual Liberty: A Lockean Perspective on Radical Consumption Tax Reform” (2001) 46 S. Dakota L. Rev. 8 at 28Google Scholar (“All tax systems impose some form of restriction on personal liberty because they mandate government removal of some aspect of an individual’s property”); Epstein, Richard A., “Taxation in a Lockean World” (1986) 4:1 Soc. Phil. & Pol’y 49 at 49CrossRefGoogle Scholar (“Taxation is the power to coerce other individuals to surrender their property without their consent”); Brennan, Geoffrey & Buchanan, James M., The Power to Tax: Analytical Foundations of a Fiscal Constitution (Indianapolis, IN: Liberty Fund, 2000) at 11 Google Scholar (“the power to ‘tax’ is simply the power to ‘take’); and Cooper, Graeme S., “Income Tax Law and Contributive Justice: Some Thoughts on Defining and Ex Pressing a Consistent Theory of Tax Justice and Its Limitations” (1986) 3 Aus. Tax Forum 297 at 297Google Scholar (“The imposition and collection of tax by a government is a confiscation of the private property of a citizen”).

4. Compania General de Tabacos de Filipinas v. C.I.R. (1927), 275 U.S. 87 at 100 (per Holmes, dissenting). For a more recent argument along these lines, see Holmes, Stephen & Sunstein, Cass, The Cost of Rights: Why Liberty Depends on Taxes (New York: WW. Norton & Company, 1999).Google Scholar

5. As a general rule, conventional tax scholarship specifies the goals of tax policy as equity, efficiency and administrative simplicity and defines tax fairness as horizontal equity (the principle that persons with the same taxable capacity should pay the same tax) and vertical equity (the principle that persons with a greater taxable capacity should pay an appropriately greater amount of tax). See, e.g., Boadway, Robin W. & Kitchen, Harry M., Canadian Tax Policy, 3rd ed. (Toronto, ON: Canadian Tax Foundation, 1999) at 52–86 Google Scholar. For an insightful critique of traditional concepts of tax fairness, see Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002) at 12–39.CrossRefGoogle Scholar

6. Ibid. at 27 (suggesting that “[a]n unreflective form of libertarianism casts a shadow over much discussion of tax policy”) and 31-37 (criticizing the “everyday libertarianism” that influences much thinking about tax policy).

7. Locke, John, Second Treatise of Government (1690), ed. by Macpherson, C.B. (Cambridge: Hackett Publishing Company, Inc., 1980) at ch. V.Google Scholar

8. Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974).Google Scholar

9. Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985) at 5.Google Scholar See also Mack, Eric, “Liberty and Justice” in Arthur, John & Shaw, William H., eds., Justice and Economic Distribution (Englewood Cliffs, NJ: Prentice Hall, 1978) 183 Google Scholar at 184.

10. Locke, , supra note 7 at 8-14 Google Scholar [chap. II]. For useful discussions of Locke’s theory of private property, see Tully, James, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980)CrossRefGoogle Scholar; Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon Press, 1988) at 137–252 Google Scholar; and Sreenivasan, Gopal, The Limits of Lockean Rights in Property (Oxford: Oxford University Press, 1995).Google Scholar

11. Locke, supra note 7 at 8 [chap. II, para. 4].

12. Ibid.

13. Ibid. at 9 [chap. II, para. 6].

14. Ibid at 18 [chap. V, para. 25]. Locke adopts this position on the grounds of “natural reason” and “revelation”—the former suggesting that “men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence”; the latter proclaiming that “God, as King David says, Psal. cxv. 16. has given the earth to the children of men; given it to mankind in common.” Ibid

15. Ibid.

16. Ibid. For useful discussions of this consent problem, see Waldron, supra note 10 at 149-53; and Sreenivasan, supra note 10 at 24-32.

17. See the discussions in Waldron, supra note 10 at 145-47 and 168-71; and Sreenivasan, supra note 10 at 23-24.

18. Locke, supra note 7 at 18 [chap. V, para. 25].

19. Ibid. at 19 [chap. V, para. 26].

20. Ibid. at 19 [chap. V, para. 28].

21. Ibid.

22. See the discussions in Tully, supra note 10 at 116-24; Waldron, supra note 10 at 171-94; and Sreenivasan, supra note 10 at 59-92.

23. Locke, supra note 7 at 19 [chap. V, para. 27].

24. Ibid. See also ibid. at 27 [chap. V, para. 44]: “though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had … in himself the great foundation of property.”

25. Ibid at 19 [chap. V, para. 27].

26. Ibid at 25 [chap. V, para. 39].

27. Ibid at 20 [chap. V, para. 31]. See also ibid at 21 [chap. V, para. 32]: “As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property.”

28. Ibid. at 20-21 [chap. V, para. 31]. See also ibid. at 24 [chap. V, para. 38]: “if either the grass of his inclosure rotted on the ground, or the fruit of his planting perished without gathering, and laying up, this part of the earth, notwithstanding his inclosure, was still to be looked on as waste, and might be the possession of any other.” For a useful discussion of the theological foundation of this limitation, see Tully, supra note 10 at 121-24.

29. Supra note 7 at 19 [chap. V., para. 27]. See also ibid. at 21 [chap. V, para. 33]: “he that leaves as much as another can make use of, does as good as take nothing at all” and ibid. at 22 [chap. V, para. 34]: “He that had as good left for his improvement … needed not complain

30. Macpherson, C.B., The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962) at 197–221 Google Scholar. For an alternative discussion of these qualifications, see Waldron, supra note 10 at 207-18 (questioning the existence of a distinct sufficiency limitation apart from other aspects of Locke’s theory). For a critical response to Waldron’s argument see Sreenivasan, supra note 10 at 37-41.

31. Supra note 7 at 28 [chap. V, para. 46].

32. Ibid at 28 [chap. V, para. 47].

33. Ibid at 29 [chap. V, para. 50]. For useful discussions of the role that money and exchange plays in Locke’s theory of private property, see Tully, supra note 10 at 145-54; Waldron, supra note 10 at 218-25; and Sreenivasan, supra note 10 at 35-36.

34. Locke, supra note 7 at 21 [chap. V, para. 33]: “Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his inclosure for himself.”

35. Ibid. at 22 [chap. V, para. 35].

36. Ibid. at 23 [chap. V, para. 36]: “And the same measure may be allowed still without prejudice to any body, as full as the world seems: for supposing a man, or family, in the sate they were at first peopling of the world …; let him plant in some in-land, vacant places of America, we shall find that the possessions he could make himself upon the measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind, or give them reason to complain, or think themselves injured by this man’s inchroachment, though the race of me have now spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning.”

37. Ibid at 23 [chap. V, para. 37], adding: “for the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common.”

38. Ibid. at 23-24 [chap. V, para. 37].

39. For a similar conclusion, see Miller, Geoffrey P., “Economic Efficiency and the Lockean Proviso” (1987) 10 Harv. J. L. & Pub. Pol’y 401.Google Scholar See also Sreenivasan, supra note 10 at 54-58.

40. See the discussion in Sreenivasan, supra note 10 at 96-100.

41. See, e.g., Locke, supra note 7 at 73 [chap. XI, para. 138] (insisting that “[t]he supreme power cannot take from any man any part of his property without his own consent”) and 74 [chap. XI, para. 140] (asking “what property have I in that, which another may by right take, when he pleases, to himself?”).

42. Ibid. at 20 [chap. V, para. 31].

43. See, e.g., ibid at 39 [chap. VI, para. 72] (referring to “the power men generally have to bestow their estates on those who please them best”).

44. See, e.g., Waldron, supra note 10 at 145-47.

45. Locke, John, Two Treatises of Government (1690), ed. by Laslett, Peter (Cambridge: Cambridge University Press, 1988) at 170 Google Scholar [Treatise First, chap. 4, para. 42]: “God the Lord and Father of all, has given no one of his Children such a Property, in his peculiar portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denied him, when his Pressing Wants call for it… As Justice gives every Man a Title to the produce of his honest Industry and the fair Acquisitions of his Ancestors descended to him, so Charity gives every Man a Title to so much of another’s Plenty, as will keep him from extream want where he has no means to subsist otherwise.” On the right to charity in Locke’s theory of property, see Tully, supra note 10 at 131-32; Waldron, supra note 10 at 145-47; and Sreenivasan, supra note 10 at 102-04.

46. See, e.g., Locke, supra note 7 at 36 [chap. VI, para. 65] (explaining that “a father may dispose of his own possessions as he pleases, when his children are out of danger of perishing for want”). On the right to inheritance in Locke’s theory of property, see Tully, supra note 10 at 133-35; Waldron, supra note 10 at 244-47; and Sreenivasan, supra note 10 at 44-46 and 104-06.

47. Nozick, supra note 8 at 5. For this purpose, Nozick assumes a state of nature “sufficiently similar” to that of Locke that many “many of the otherwise important differences may be ignored here.” Ibid. at 9.

48. Ibid. at 150 (emphasis added).

49. Ibid. at 150-53.

50. Ibid. at 153-60. For useful discussions of Nozick’s theory, see Scanlon, Thomas, “Nozick on Rights, Liberty, and Property” (1976) 6 Phil. & Pub. Affairs 3 Google Scholar; Waldron, supra note 10 at 253-83; Sreenivasan, supra note 10 at 120-39; and Kymlicka, Will, Contemporary Political Philosophy: Introduction An, 2nd ed. (Oxford: Oxford University Press, 2002) at 102 Google Scholar-65.

51. See, e.g., Epstein, , “Taxation in a Lockean World,” supra note 3 at 51 Google Scholar (arguing that “Locke’s case would have been made more forcefully if he had taken the basic position of both the common and the Roman law—that all external things are unowned in the original position—for then first possession need not defeat any prior claims”). See also Epstein, , Takings, supra note 9 at 10–12 Google Scholar.

52. Nozick, supra note 8 at 175. For a useful discussion of this point, see Sreenivasan, supra note 10 at 122.

53. See the discussion at supra notes 17-39 and accompanying text.

54. Nozick, supra note 8 at 175: “The crucial point is whether appropriation of an unowned object worsens the situation of others.” Although Nozick is not clear on the means by which unowned things may be appropriated, he criticizes Locke’s labour theory of appropriation on the grounds that the boundaries of the property that may be acquired through labour are unclear, and that the labourer’s entitlement might reasonably be limited to the added value created rather than the whole of the object with which labour is mixed. Ibid. at 174-75. Elsewhere, however, Nozick emphasizes the role of labour in his entitlement theory, insisting that “[w]hoever makes something, having bought or contracted for all other held resources used in the process … is entitled to it.” Ibid. at 160. For similar observations, see Sreenivasan, supra note 10 at 124; and Fried, Barbara, “Wilt Chamberlain Revisited: Nozick’s ‘Justice in Transfer’ and the Problem of Market-Based Distribution” (1995) 24 Phil. & Pub. Affairs 226 at 227 Google Scholar.

55. Nozick, supra note 8 at 176 (distinguishing between a stringent and a weaker requirement that no one be made worse off by private appropriation and arguing that “no one legitimately can complain if the weaker provision is satisfied”). See also ibid. at 178 (emphasizing that “[i]t is important to specify this particular mode of worsening the situation of others, for the proviso does not encompass other modes” such as “the worsening due to more limited opportunities to appropriate”).

56. Ibid at 177 (emphasizing that “[t]hese considerations enter a Lockean theory to support the claim that appropriation of private property satisfies the intent behind the ‘enough and as good left over’ proviso, not as a utilitarian justification of property”).

57. Ibid at 181 (arguing that “the baseline for comparison is so low as compared to the productiveness of a society with private appropriation that the question of the Lockean proviso being violated arises only in the case of catastrophe”).

58. Ibid. at 178.

59. Locke, supra note 7 at 66 [chap. IX, paras. 124-126].

60. Ibid. at 66 [chap. IX, para. 123]. See also ibid at 12 [chap. II, para. 13] (suggesting that “civil government is the proper remedy for the inconveniences of the state of nature, which must certainly be great, where men may be judges in their own case”) and 66-67 [chap. IX, para. 127] (emphasizing that “mankind, notwithstanding all the privileges of the state of nature, being but in an ill condition, while they remain in it, are quickly driven into society” where they “take sanctuary under the established laws of government, and therein seek the preservation of their property”).

61. Nozick, supra note 8 at 10-14.

62. Locke, supra note 7 at 68 [chap. IX, para. 131]. As a result he maintains, natural laws do not cease in civil society, “but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation.” Ibid. at 71 [chap. XI, para. 135]. For a useful discussion of Locke’s understanding of the relationship between the state of nature and civil society, see Waldron, supra note 10 at 232-41. For opposing views, suggesting that Locke adopted a conventional view of property rights in civil society, see Scanlon, supra note 50 at 23-24; and Tully, supra note 10 at 98-100, 145-54, and 163-70.

63. Nozick, supra note 8 at ix. See also Mack, Eric, “Self-Ownership, Taxation, and Democracy: A Philosophical-Constitutional Perspective” in Racheter, Donald P. & Wagner, Richard E., eds., Politics, Taxation and the Rule of Law: The Power to Tax in Constitutional Perspective (Boston, MA: Kluwer Academic Publishers, 2002) 9 at 22 Google Scholar: “From the Lockean perspective, the only legitimate use of force by the state or its officials is use that sup Presses the violation of rights.”

64. Ibid at 168. See also Epstein, , “Taxation in a Lockean World,” supra note 3 at 68 Google Scholar (“within the Lockean world, the redistribution of income through the tax system is an unacceptable function of government”); and Epstein, Richard A., “Can Anyone Beat the Flat Tax?” (2002) 19:1 Soc. Phil. & Pol’y 140 at 161 Google Scholar (“redistribution of wealth, when consciously done, counts as little more than theft initiated by the state”).

65. Nozick, supra note 8 at 169.

66. Ibid at 172.

67. See, e.g., Epstein, , “Taxation in a Lockean World,” supra note 3 at 54 Google Scholar; and Mack, , “Self-Ownership, Taxation, and Democracy,” supra note 63 at 23–24 Google Scholar.

68. Epstein, , “Can Anyone Beat the Flat Tax?” supra note 64 at 143 Google Scholar; and Mack, , “Self-Ownership, Taxation, and Democracy,” supra note 63 at 25 Google Scholar.

69. See, e.g., Epstein, , Takings, supra note 9 at 15 Google Scholar (“whenever any portion of [a person’s property] is taken from [the person through taxation], he must receive from the state … some equivalent or greater benefit as a part of the same transaction”); Epstein, , “Can Anyone Beat the Flat Tax?” supra note 64 at 147 Google Scholar (“government coercion is justified only to the extent that it provides net benefits to those individuals subjected to coercion”); and Mack, , “Self-Ownership, Taxation, and Democracy,” supra note 63 at 25 Google Scholar (suggesting that “for each individual, the loss imposed upon him by taxation must be less than the benefit to him of the protective services he receives”).

70. See, e.g., Epstein, , “Can Anyone Beat the Flat Tax?” supra note 64 at 147 Google Scholar (insisting that “in principle every individual must be made better off to the same degree, that is, receive the same rate of return on his proportionate investment in social infrastructure”); and Mack, , “Self-Ownership, Taxation, and Democracy,” supra note 63 at 29 Google Scholar, n. 11 (arguing that “no individual [should] be made to contribute out of proportion to the benefits to him of the protective services”).

71. For a brief discussion of the benefit principle of taxation, see Musgrave, Richard A., Musgrave, Peggy B., & Bird, Richard M., Public Finance in Theory and Practice, 1st Cdn. ed. (Toronto, ON: McGraw-Hill Ryerson, 1987) at 210–13 Google Scholar. On the link between the benefit principle and libertarian conceptions of private property and the state, see Wagner, Richard E., “Tax Norms, Fiscal Reality and the Democratic State,” in Wagner, Richard E., ed., Charging for Government Services: User Charges and Earmarked Taxes in Principle and Practice (New York: Routledge, 1991) 1 at 2–3 Google Scholar. For my own views on the appropriate scope of benefit taxes and user fees, see Duff, David G., “Benefit Taxes and User Fees in Theory and Practice” (2004) 54 U.T.L.J. 391 Google Scholar.

72. Epstein, , “Taxation in a Lockean World,” supra note 3 at 55–56 Google Scholar.

73. On the distinction between user fees and benefit taxes, see Duff, , “Benefit Taxes and User Fees in Theory and Practice,” supra note 71 at 393–95 Google Scholar.

74. See the discussion about the feasibility of user fees and benefit taxes in ibid. at 410-11.

75. See, e.g., Boadway, & Kitchen, , supra note 5 at 88–102 Google Scholar.

76. Hobbes, Thomas, Leviathan (1651), ed. by Macpherson, C.B. (Harmondsworth, UK: Penguin, 1985) at 386 Google Scholar [chap. 30]: “To equal justice, appertaineth also the equal imposition of taxes; the equality whereof dependeth not on the equality of riches, but on the equality of the debt that every man oweth to the commonwealth for his defence…. Seeing the benefit that every one receiveth thereby, is the enjoyment of life, which is equally dear to poor and rich; the debt which a poor man oweth them that defend his life, is the same which a rich man oweth for the defence of his.”

77. For Hobbes’ view of the state of nature, see ibid. at 185 [chap. 13] (describing the natural condition of mankind as “that condition which is called Warre; and such a warre, as is of every man, against every man”).

78. Epstein, , Takings, supra note 9 at 297 Google Scholar.

79. Schoenblum, Jeffrey A., “Tax Fairness or Unfairness? A Consideration of the Philosophical Bases for Unequal Taxation of Individuals” (1995) 12 Am. J. Tax Pol’y 221.Google Scholar

80. Locke, , supra note 7 at 74 [chap. XI, para. 140] (emphasis added)Google Scholar.

81. See, e.g., Wagner, Richard E., “Sense versus Sensibility in the Taxation of Personal Wealth” (1980) 2:1 Canadian Taxation 23–30 Google Scholar. For a critical assessment of the benefit rationale for wealth taxation, see Rakowski, Eric, “Can Wealth Taxes Be Justified?” (2000) 53 Tax Law Rev. 263 at 300–09.Google Scholar

82. See, e.g., Wagner, Richard E., Inheritance and the State: Tax Principles for a Free and’Prosperous Commonwealth (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1977)Google Scholar; and Epstein, , Takings, supra note 9 at 303–05 Google Scholar.

83. Hobbes, , supra note 76 at 386–87 Google Scholar: “Which considered, the equality of imposition, consisteth rather in the equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there, that he which laboureth much, and sparing the fruits of his labour, consumeth little, should be more charged, than he that living idly, getteth little, and spendeth all he gets; seeing the one hath no more protection from the commonwealth, than the other? But when the impositions, are laid upon those things which men consume, every man payeth equally for what he useth.”

84. See, e.g., Andrews, William D., “A Consumption-Type of Cash Flow Personal Income Tax” (1974) 87 Harv. L. Rev. 1113 at 1167–20 Google Scholar.

85. See, e.g., Cockfield, Arthur, “Income Taxes and Individual Liberty: A Lockean Perspective on Radical Consumption Tax Reform” (2001) 46 S. Dak. L. Rev. 8 Google Scholar. For an opposing view, see Warren, Alvin, “Would a Consumption Tax Be Fairer Than an Income Tax?” (1980) 89 Yale L.J. 1081 at 1122, 1123 Google Scholar (arguing that “consumption taxation is less consistent with individual freedom than is income taxation” on the grounds that: “A person’s collective responsibilities are concluded at the time of production under the income tax; by contrast, under the consumption tax those responsibilities are not discharged until a person consumes his last resource”).

86. Smith, Adam, An Inquiry into the Nature and Causes of The Wealth of Nations (1776), ed. by Cannan, Edwin (Chicago, IL: University of Chicago Press, 1977) Vol. 2 at 350 Google Scholar.

87. Cooper, Graeme S., “The Benefit Theory of Taxation” (1994) 11 Aus. Tax Forum 397 at 493.Google Scholar

88. Epstein, , Takings, supra note 9 at 60 (endorsing “the two standard definitions of income” advanced by economists Haig, Robert Murray and Simons, Henry, subject to the exclusion of imputed income and the taxation of gains only on realization)Google Scholar. Haig defined personal income as “the money value of the net accretion to one’s economic power between two points of time.” Haig, Robert Murray, “The Concept of Income — Economic and Legal Aspects” in Haig, R.M., ed., The Federal Income Tax (New York: Columbia University Press, 1920) 27 at 59 Google Scholar. Simons defined personal income as “the algebraic sum of (1) the market value of rights exercised in consumption and (2) the change in the value of the store of property rights between the beginning and end of the period in question.” Simons, Henry C., Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy (Chicago, IL: University of Chicago Press, 1938) at 50.Google Scholar For a libertarian argument against a comprehensive income tax, see Brennan, & Buchanan, , supra note 3 at 231–33 Google Scholar (arguing that “loopholes” guard against “undue fiscal exploitation” by the state).

89. For a critical analysis of libertarian arguments for a flat rate of tax, see Fried, Barbara H., “The Puzzling Case for Proportionate Taxation” (1999) 2 Chap. L. Rev. 157 Google Scholar (concluding that libertarian principles are more compatible with regressive taxation).

90. Locke, , supra note 7 at 74 Google Scholar [chap. XI, para. 140]: “everyone who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it.” Both Epstein and Cockfield rely on this passage to support the conclusion that Locke favoured a flat rate of tax. Epstein, , “Taxation in a Lockean World,” supra note 3 at 68 Google Scholar; and Cockfield, , supra note 85 at 50 Google Scholar.

91. Hayek, Friedrich A., The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960) at 315–16 Google Scholar (adding that “therefore, a person who commands more of the resources of society will also gain proportionately more from what the government has contributed”).

92. Epstein, , “Can Anyone Beat the Flat Tax?” supra note 64 at 144 Google Scholar.

93. See, e.g., Epstein, , “Taxation in a Lockean World,” supra note 3 at 68–69 Google Scholar (arguing that in a Lockean world, “the just tax should not alter the rank ordering by wealth of individuals within the society”); and Friedman, Milton, Capitalism and Freedom (Chicago, IL: University of Chicago Press, 1962) at 174 Google Scholar (describing graduated rates as “a clear case of using coercion to take from some in order to give to others and thus … conflicting] head-on with individual freedom”).

94. See, e.g., Brennan, & Buchanan, , supra note 3 at 223–24 Google Scholar (concluding that “a proportionality restriction might well serve to constrain discrimination among different groups of taxpayers” and “would surely … reduce, or even substantially … eliminate, the debate-conflict over relative tax shares … that characterizes much modern discussion”); and Epstein, , Takings, supra note 9 at 299 Google Scholar (suggesting that a progressive tax “increases the frequency and intensity of legislative rent seeking by increasing the expected gains of factions”).

95. See, e.g., Lindahl, Eric, “Tax Principles and Tax Policy” (1960) 10 International Economic Papers 7 at 9 (arguing on this basis that “taxation in accordance with ability to pay could be regarded as an essential part of a (modified) taxation according to benefit principle”)Google Scholar. See also Murphy, & Nagel, , supra note 5 at 82 Google Scholar.

96. See, e.g., Blum, Walter J. & Harry, Kalven Jr., “The Uneasy Case for Progressive Taxation” (1952) 19 U. Chi. L. Rev. 417 at 454 Google Scholar.

97. See, e.g., Kornhauser, Marjorie, “The Rhetoric of the Anti-Progressive Income Tax Movement: A Typical Male Reaction” (1987) 86 Mich. L. Rev. 465 at 491–97 Google Scholar.

98. See, e.g., Epstein, , Takings, supra note 9 at 298 Google Scholar (arguing that “there is no real evidence to support [the] conclusion” that the benefits from government increase more steeply than income).

99. On the other hand, as Blum, and Kalven, suggest, “it would be preposterous to assume that [the costs of protecting property] increase more rapidly than the value of the property being protected.” Supra note 96 at 454 Google Scholar.

100. See, e.g., Epstein, , Takings, supra note 9 at 298 Google Scholar (suggesting that “[t]he interest in bodily security … is probably not linear with income, for people with taxable low incomes may tend to value bodily security highly, especially if they are young with extensive human capital or imputed income”).

101. Mill, John Stuart, Principles of Political Economy (1848), ed. by Winch, Donald (London: Penguin Books, 1970) at 156 Google Scholar [Book V, chap. II, sec. 2].

102. See, e.g., Schoenblum, , supra note 79 at 225–33 Google Scholar.

103. See, e.g., Friedman, , supra note 93 at 175 Google Scholar (explaining that a “flat-rate-tax would involve higher absolute payments by persons with higher incomes for governmental services, which is not clearly inappropriate on grounds of benefits conferred”). See also Epstein, , Takings, supra note 9 at 298 Google Scholar (suggesting that a flat-rate tax “minimizes the expected mismatch of taxes and benefits” and “is clearly superior to a highly progressive tax, where the redistributive motive is powerful evidence of redistributive effects”).

104. Blum, & Kalven, , supra note 96 at 517 Google Scholar.

105. Mill, , supra note 101 at 155 Google Scholar [Book V, chap. II, sec. 2].

106. See, e.g., Blum, & Kalven, , supra note 96 at 456 Google Scholar: “It seems likely that a dollar has less ‘value’ for a person with a million dollars of income than for a person with only a thousand dollars of income. To take the same number of dollars from each is not to require the same amount of sacrifice from them. Instead a fair tax would take more from the wealthier individual, and this is what a progressive tax does.” Interestingly, Mill himself rejected progressive rates for the taxation of personal income, preferring a degressive tax with a flat rate above a threshold designed to exempt “the amount of income needful for life, health, and immunity from bodily pain.” Mill did, however, favour graduated rates for legacy and inheritance duties. Mill, , supra note 101 at 157–60 Google Scholar [Book V, chap. II, sec. 3].

107. See, e.g., Pigou, A.C., A Study in Public Finance, 3rd rev. ed. (London: Macmillan, 1951) at 85–86 Google Scholar: “All that the law of diminishing utility asserts is that the last £1 of a £1000 income carries less satisfaction than the last £1 of a £100 income does. From this datum it cannot be inferred that, in order to secure equal sacrifice … taxation must be progressive. In order to prove that the principle of equal sacrifice necessarily involves progression we should need to know that the last £10 of a £1000 income carry less satisfaction than the last £1 of a £100 income: and this the law of diminishing utility does not assert.” Where the percentage reduction in the utility of money is less than the percentage increase in income, equal absolute sacrifice requires rates to decrease as income increases. Equal absolute sacrifice supports a flat-rate income tax only where each percentage increase in income is accompanied by an identical percentage reduction in its marginal utility—a relationship that defines a rectangular hyperbola. See Blum, & Kalven, , supra note 96 at 458–59 Google Scholar.

108. Ibid. at 459.

109. Ibid at 460.

110. Murphy, & Nagel, , supra note 5 at 27 Google Scholar (asking “what would be fairer, if we assume that the distribution of welfare produced by the market is just than that everyone contribute the same amount in real (as opposed to monetary) terms?”).

111. Locke, , supra note 7 at 75 Google Scholar [chap. XI, para. 142].

112. Ibid. at 74 [chap. XI, para. 140].

113. See, e.g., Brennan, & Buchanan, , supra note 3Google Scholar.

114. Wicksell, Knut, “A New Principle of Just Taxation” (1896), in Musgrave, R.A. & Peacock, A., eds., Classics in the Theory of Public Finance (London: Macmillan, 1958) 72 at 90 Google Scholar. This argument it should be noted, is premised on the presumption that “the existing distribution of property and income” is just—a view that libertarians hold but that Wicksell did not. Ibid. at 108-09.

115. Ibid. at 92.

116. Hayek, Friedrich, The Political Order of a Free People in Law, Legislation and Liberty, vol. 3, (Chicago, IL: University of Chicago Press, 1979).CrossRefGoogle Scholar

117. Mack, , “Self-Ownership, Taxation and Democracy,” supra note 63 at 28 Google Scholar.

118. Brennan, & Buchanan, , supra note 3 at 235 Google Scholar.

119. Taxpayer Act Protection, 1999, S.O. 1999, c. 7.

120. See, e.g., Epstein, , “Taxation in a Lockean World,” supra note 3 at 71 Google Scholar (suggesting that “constitutional restraints on the power to tax are the only available tool known to political theory”).

121. Ibid at 73. Michigan’s State Constitution , for example, prohibits an income tax that is “graduated as to rate or base”. Gary Wolfram, “Taxpayers Rights and the Fiscal Constitution” in Wagner et al., Politics, Taxation and the Rule of Law, supra note 63, 49 at 72-73 (explaining that this provision “allows for a certain amount of progression due to the existence of exemptions”).

122. Epstein, , Takings, supra note 9 at 295–96 Google Scholar. See also Mack, , “Self-Ownership, Taxation and Democracy,” supra note 63 at 26 Google Scholar (proposing that “[e]ach individual should have the opportunity to challenge in court the fee-for-service that is imposed upon him on the grounds that this fee equals or exceeds the benefits of the service to him”).

123. Brennan, & Buchanan, , supra note 3 at 229–31 Google Scholar.

124. See, e.g., Wolfram, , supra note 121 at 76 Google Scholar.

125. Ibid. at 68-71.

126. For a brief discussion of this proposal, see Brennan, & Buchanan, , supra note 3 at 233–34 Google Scholar.

127. See, e.g., Kymlicka, , supra note 50 at 111–13 Google Scholar.

128. See, e.g., Mill, , supra note 101 at 358–59 Google Scholar [Book II, chap. 1, sec. 3]: “The social arrangements of modern Europe commenced from a distribution of property which was the result not of just partition, or acquisition by industry, but of conquest and violence: and notwithstanding what industry has been doing for many centuries to modify the work of force, the system still retains many and large traces of its origin.” While these origins might have less influence today than when Mill was writing 150 years ago, the legacies of slavery and colonialism suggest that their significance remains. Even Epstein acknowledges that “[m]uch of the current stores of wealth were acquired by improper means, and these imperfections necessarily infect the system as it now stands.” Epstein, , Takings, supra note 9 at 346 Google Scholar.

129. Nozick, , supra note 8 at 152–53 Google Scholar.

130. Ibid. at 231.

131. Ibid.

132. See, e.g., Abramson, Elliott M., “Philosophization Against Taxation: Why Nozick’s Challenge Fails” (1981) 23 Ariz. L. Rev. 753 at 755 Google Scholar (characterizing this approach as “a glib way of escaping the general force of Nozick’s comprehensive argument”).

133. See, e.g., Nozick, , supra note 8 at 231 Google Scholar.

134. See, e.g., Epstein, , Takings, supra note 9 at 346–50 Google Scholar.

135. See, e.g., Cohen, G.A., “Self-Ownership, World-Ownership, and Equality: Part II” (1986) 3 Soc. Phil. & Pol’y 77 Google Scholar.

136. Ibid. at 80-83. See also the brief discussion in Kymlicka, supra note 50 at 120-21.

137. See, e.g., Murphy, & Nagel, , supra note 5 at 16 Google Scholar: “The no-government world is Hobbes’ state of nature, which he aptly described as a war of all against all.”

138. See, e.g., ibid at 74: “Property rights are the product of a set of laws and conventions, of which the tax system forms a part.”

139. Ibid. at 8.

140. See, e.g., Kymlicka, , supra note 50 at 113 Google Scholar (asking “[w]hat sort of initial acquisition of absolute rights over unowned resources is consistent with the idea of treating people as equals?”).

141. Supra notes 17-39 and accompanying text.

142. Supra notes 54-55 and accompanying text.

143. Supra notes 40-46 and accompanying text (Locke) and text accompanying note 58 (Nozick).

144. Supra notes 37-39 and 56-57 and accompanying text.

145. Nozick, , supra note 8 at 175 Google Scholar.

146. See, e.g., Waldron, , supra note 10 at 267 Google Scholar.

147. See ibid. at 271-78 (suggesting that this question is properly considered by asking whether others could reasonably be considered to consent to this appropriation if asked).

148. Supra note 29 and accompanying text.

149. See, e.g., Fried, , “Wilt Chamberlain Revisited” supra note 54 at 230 Google Scholar, n. 14 (arguing that Locke’s reference to the availability of land in “the vacant places of America” does not satisfy the “as good” element of the sufficiency limitation “because, due to its locational disadvantages, land in America is not an economic substitute for land in England”). This is to say nothing about the colonial assumptions underlying the idea of “vacant” land in America.

150. See, e.g., Sreenivasan, , supra note 10 at 114 Google Scholar.

151. See, e.g., ibid. at 115 (concluding that “it is not true that appropriation which satisfies Locke’s sufficiency condition does not injure the other commoners, and it follows that they have ample grounds for complaint”).

152. See, e.g., Waldron, , supra note 10 at 241–51 Google Scholar (concluding that Locke’s argument supports only personal entitlements and does not justify a right to bequeath property”); and Sreenivasan, , supra note 10 at 95–119 Google Scholar (arguing that Locke’s argument establishes only a right to use a share of land equal to that of other commoners, which is “open to modification should it subsequently prove not to be universalisable”).

153. Supra notes 54-55 and accompanying text.

154. See, e.g., Cohen, G.A., “Self-Ownership, World-Ownership, and Equality” in Lucash, Frank S., Justice and Equality Here and Now (Ithaca, NY: Cornell University Press, 1986) 108 at 127–28 Google Scholar (asking why the propertyless should “be required to accept what amounts to a doctrine of ‘first come, first served’?”); Fried, Barbara, “Wilt Chamberlain Revisited” supra note 54 at 232 Google Scholar (commenting that Nozick’s weak version of the Lockean proviso “in effect permits first-comers to appropriate the surplus value inherent in soon-to-be scarce resources”); and Otsuka, Michael, “Self-Ownership and Equality: A Lockean Reconciliation” (1998) 27 Google Scholar Phil. & Pub. Affairs 65 at 78 (suggesting that “it is manifestly unfair that a first grabber be allowed to acquire a much greater share than others, at a cost in terms of the opportunities of others, of worldly resources over which she has no greater moral claim than anybody else”).

155. See, e.g., Cohen, , “Self-Ownership, World-Ownership, and Equality” supra note 154 at 127 Google Scholar (observing that “entitlement theorists tend to neglect the value people may place on the kind of power relations in which they stand to others, a neglect that is extraordinary in supposed libertarians professedly committed to human autonomy and the overriding importance of being in charge of one’s own life”); Sreenivasan, , supra note 10 at 132 Google Scholar (suggesting that Nozick judges someone to be better or worse off according to “the state of their material well being”); and Kymlicka, , supra note 50 at 116 Google Scholar (commenting that “[o]ne would expect Nozick’s account of what it is for an act of appropriation to worsen the condition of others … to emphasize people’s ability to act on their conception of themselves, and to object to any appropriation that puts someone in an unnecessary and undesirable position of subordination and dependence on the will of others”).

156. Supra notes 56-57 and accompanying text.

157. See, e.g., Cohen, , “Self-Ownership, World-Ownership, and Equality,” supra note 154 at 132 Google Scholar (commenting that Nozick’s approach “unreasonably restrict[s] the range of permissible comparison”); and Sreenivasan, , supra note 10 at 133–34 Google Scholar (concluding that “Nozick is guilty of arbitrariness because the legitimacy conferred by the logic of his productive bounty criterion is not unique to regimes of full individual ownership”).

158. See, e.g., ibid. at 128 (concluding that “Nozick’s condition licenses and protects appropriations whose upshots make each person worse off than he need be, upshots that are, therefore, in one good sense, Pareto-inferior”); Christman, John, “Can Ownership Be Justified by Natural Rights?” (1986) 15 Phil. & Pub. Affairs 156 at 174–76 Google Scholar (noting that Nozick does not consider “alternative systems of property rights … that would make certain persons better off than under a system of full private ownership”); Kornhauser, , supra note 97 at 500 Google Scholar (“the comparison should not be between a system of private property and a state of nature but between a system of full private ownership and another system of ownership”); and Kymlicka, , supra note 50 at 117–19 Google Scholar (concluding that a “more plausible test of legitimate appropriation would consider all relevant alternatives” and ask “whether a system of appropriation makes people worse off … compared to a world in which their interests are fairly attended to”).

159. Supra notes 22-26 and accompanying text.

160. Supra notes 65-66 and accompanying text.

161. See, e.g., Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar; and Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000).Google Scholar

162. See, e.g., Abramson, , supra note 132 at 759 Google Scholar: “Since a social being is the result of an incalculable number of influences and experiences, most of them social in nature, why are products which issue through the individual not likewise social as well as individual? If part of each individual has been contributed by others, then why should everything the individual produces belong to him or her? At the least, why should such products, for which the individual might be regarded as the ontological confluence, the conduit be considered as belonging entirely to such individual? If the individual was not entirely responsible for the creation of such products, why is she or he exclusively entitled to them?”

163. See Cohen, G.A., Self-Ownership, Freedom and Equality (Cambridge; Cambridge University Press, 1995)CrossRefGoogle Scholar.

164. Kymlicka, , supra note 50 at 127 Google Scholar. See also Abramson, , supra note 132 at 758 Google Scholar (asking whether it can be “that those who are incapable of producing anything because of physical infirmity, mental impairment or whatever are entitled to nothing?”).

165. Kymlicka, , supra note 50 at 125–27 Google Scholar.

166. See, e.g., Fried, , “Wilt Chamberlain Revisited” supra note 54 at 242 Google Scholar; and Byrne, Donna M., “Locke, Property, and Progressive Taxes” (1999) 78 Neb. L. Rev. 700 at 718–23 Google Scholar (arguing that this claim on the “social increment of value” is compatible with Locke’s emphasis on individual entitlement to the products of their labour). See also Warren, supra note 85 at 1091 at (suggesting that “a producer does not have a controlling moral claim over the product of his capital and labor, given the role of fortuity in income distribution and the dependence of producers on consumers and other producers to create value in our society—factors that create a general moral claim on all private product on behalf of the entire society”); and Graetz, Michael J., “To Praise the Estate Tax, Not to Bury It” (1983) 93 Yale L.J. 259 at 274–78 Google Scholar (defending progressive taxation on the basis that “[a]ll receipts are joint products, both individual and societal”).

167. Warren, , supra note 85 at 1093 Google Scholar.

168. Murphy, & Nagel, , supra note 5 at 27 Google Scholar.

169. See Duff, , “Benefit Taxes and User Fees in Theory and Practice,” supra note 71Google Scholar.

170. Ibid. at 402, n. 43.

171. See, e.g., Dworkin, , supra note 161 at 99–109 Google Scholar (analogizing progressive income taxes to premiums in a hypothetical insurance market); and Byrne, , “Locke, Property, and Progressive Taxes,” supra note 166 at 733–39 Google Scholar (arguing for a progressive income tax based on the greater extent to which extremely high incomes result from luck than do lower incomes). See also Warren, , supra note 85Google Scholar (arguing that an income tax is fairer than a tax on consumption); and Charles, O’Kelley Jr., “Rawls, Justice, and the Income Tax” (1981) 16 Geo. L. Rev. 1 at 1091 Google Scholar (rejecting consumption taxation on the basis that it does not correct an initially unjust distribution of income). For an opposing view of the choice between income and consumption taxation, see McCaffery, Edward J. Fair Not Flat: How to Make the Tax System Better and Simpler (Chicago, IL: University of Chicago Press, 2002).CrossRefGoogle Scholar

172. See, e.g., Duff, David G., “Taxing Inherited Wealth: A Philosophical Argument” (1993) 6 Can. J. L. & Juris. 3CrossRefGoogle Scholar. For an opposing view, see McCaffery, Edward J., “The Uneasy Case for Wealth Transfer Taxation” (1994) 104 Yale L.J. 283 Google Scholar. See also the critical responses to this article by Alstott, Anne L., “The Uneasy Liberal Case Against Income and Wealth Transfer Taxation: A Response to Professor McCaffery” (1996) 51 Tax L. Rev. 363 Google Scholar; and Rakowski, Eric, “Transferring Wealth Liberally” (1996) 51 Tax L. Rev. 419 Google Scholar.

173. Murphy, & Nagel, , supra note 5 at 8 Google Scholar. Although the argument in Part IV rejects the legal positivism that these authors rely upon to support this statement, it arrives at the same conclusion by rejecting libertarian conceptions of natural property rights.

174. Ibid. at 12-39.

175. See, e.g., ` Musgrave, , Musgrave, , & Bird, , supra note 71 at 5–12 Google Scholar.