Liberalism and the Right to Make Life-Changing Bequests

8/6/2019 Liberalism and the Right to Make Life-Changing Bequests

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Liberalism and the Right to Make Life-Changing Bequests

Introduction

Death duties and other imposts on deceased estates notwithstanding, the right to make

life-changing bequests is assumed with little, if any, justification in Anglophone liberal-

democracies. While many explanations may be offered for this, one that deserves careful

attention is that recognition of this right is consistent with the principles of liberal political

theory that underpin those polities. A right to make a life-changing bequest (RLCB) is taken

to be so congruous with liberal principles that it requires no discussion. While individual

thinkers who are part of the liberal tradition, or as some would have it liberal traditions, might

have questioned this right, these moments have not shaken the assumption that a RLCB is a

right.

An examination of the fit between such a right and fundamental liberal principles

can be defended in terms of the project of elaborating and examining liberal political theory

and because of the effects of the application of this right on societies. While the former is

material for political theorists, the latter is vastly more important, as it is a matter for all those

interested in the nature of liberal-democratic societies and their politics. This article presents

five grounds for reconsidering a RLCB that have been derived from the works of, in order of

appearance, John Rawls, Jeremy Bentham, Friedrich Hayek, John Locke and Milton

Freidman.

P reliminary points

Five points must be made before proceeding any further. First, the discussion is

limited to life-changing bequests because, while some of the arguments presented herein


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relate to all bequests, minor bequests ned not, in the context of public policy at least, merit

disrupting or even delaying the argument presented here. Nor, and second, will the argument

be delayed by a discussion of when a bequest is life-changing. No doubt, a question might

arise as to when a bequest becomes life-changing, but we are nowhere near that point.

Considering what this might mean for policy makers also comes later. Fourth, this article

does not provide conclusive arguments for rejecting a RLCB but justify the sort of public

debate that would lead to a resolution of the question of whether a RLCB is consistent with

important liberal principles. Finally, bequests are assumed to be bequests of property or

property rights (which includes monetary bequests) to individuals, as these have the most

profound effect on beneficiaries and on society generally.

Th e Importance of a Rig h t to Make Life-C h anging Bequests

The RLCBs is important in two ways. It is important in liberal theory and it is

important for society. It is one thing, though not a trivial thing, for liberals to be concerned

about the validity of a RLCB. It is another for liberals to apply their principles in an

examination of a right that has profound effects on the nature of a society and, by logical

perhaps tautological extension, the individuals in that society.

Twenty-five years ago, Michael Levy challenged the legitimacy of a right to inherit

wealth in the name of liberal equality (1983: 545). In his view, inherited wealth resembles a

living fossil, curiously surviving the liberal egalitarian ethic of western societies (548).

Inherited wealth, he objected, is unearned, it prevents full equality of opportunity and

conceivably equality of liberty... (550). Levy concluded that the status of inherited wealth

must remain problematic for anyone holding a liberal worldview (550). Liberals have not

responded to Levys contentions in academic journals and other public arenas. This makes it

hard to make sense of the Cunliffes suggestion that the idea that each young adult is entitled


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to an equal capital endowment funded mainly from inheritance taxation is an important part

of liberal-egalitarian debate. (2002: 2)

Studies of the effects of a RLCB are also significantly less numerous than might be

assumed, given the effects of this right, and few recent studies are available. Atkinson,

though, found that inheritance is a factor of great importance in giving rise to concentration

in the distribution of wealth in Britain (Atkinson, 1974: 11). While Kotlikoff and Summers

found that intergenerational transfers account for the vast majority of aggregate U.S. capital

formation... (1981: 706). Most importantly, in the present context, Atkinson agreed with

Wedgwoods observation that, in the great majority of cases, the large fortunes of one

generation belong to the children of those who possessed the large fortunes of the preceding

generation and added that the attention paid to the few self-made rich seems due to the fact

that those who compose it are exceptional phenomena rather than numerous (Atkinson,

1974: 76).

H ow is liberalism understood h ere?

The persistent debate on this issue means that there can be no final statement as to

what a liberal believes. Any attempt to specify liberal values or principles is bound to

encounter objections. Two characteristics will be attributed to liberalism and used to justify

treating the thinkers whose ideas are used herein as expressing basic liberal principles. The

first is a commitment to the use of reason in deciding matters, if nothing else, of public

policy. The second characteristic is a desire t recognise and promote individual responsibility.

This involves maximising individual freedom and promoting individual choice-making.

While one or both of these principles might be deemed not to reflect liberalism in all


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countries and at all times, if liberalism does not require respect for individual responsibility

and reflects indifference to the use of reason, then little seems left of liberalism.

Reason and Rights: Rawls, Bentham and Hayek

The first characteristic of liberalism that provides a basis for reconsidering a RLCB is

that this right has not been justified through a public debate in which reasonable arguments

are put in defence of that right. As Owen suggested, the enlightenment roots of liberalism

mean that liberals are not indifferent when it comes to reason. The very term

enlightenment suggests that there is a correct worldview, the worldview of the modern

rationalist, and that all who do not share this worldview are confused, prejudiced, or

superstitious. Thus, the spirit of enlightenment is not the spirit of toleration (Owen,

2005: 146).

Even if this is taken to go too far, and the idea of a correct worldview eschewed,

individuals are still understood to have and to need to use, reason. The private and public

debates that liberals encourage (as represented in a defence of rights to freedom of expression

and of the press), reflects the view that universal human reason allows us to argue out points

of disagreement with one another and, in some cases, reach a consensus that rests on neither

force nor fraud, nor on any appeals to a Higher Authority. And, even when long-standing

consensuses exist, the essence of the liberal, Enlightenment-based creed is that each and

every individual must judge for her/himself what reason dictates with respect to these

various consensuses (van den Berg, 1996: 21).


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Fortier objected to those who suggest that Rawls conceded that liberalisms

metaphysical claims are neither more nor less valid than the religious claims that it once

opposed [because] his work actually suggests that liberalism cannot separate itself from its

Enlightenment origins as easily as some have supposed (2010: 1003). Otherwise, Fortier

suggested, we cannot account for Rawlss claim that we want a political conception to have

a justification by reference to one or more comprehensive doctrines, nor why he claimed

that political liberalism was meant to fulfill the role that Kant gave to philosophy

generallynamely, the defense of reasonable faith (1006-7). It is this context that Rawls

(and, perhaps, Bentham) espoused liberal principles that bear directly on the question of

whether a RLCB is an acceptable public policy.

P romoting and Using P ublic Reason: Rawls

The tests that a Rawlsian must apply to determining the legitimacy of a RLCB relate

to its compatibility with public reasoning. Only if a RLCB accords with authentic public

reasoning can it be defended. For Rawls, all rights must be subjected to this test and, as

Waldron argued, we cannot guarantee that socioeconomic rights will emerge in a familiar or

predictable form (Waldron 2005: 108). Appreciating the radical nature of Rawlss project

and the objection to the RLCB developed here requires engaging with the rationalism that is

at the heart of liberalism and the promotion of public reason that Rawls understood to

continue this project. Rawlss theories require approaching the RLCB in terms of the use of

public reason, and it is in terms of what public reason ought to produce that a RLCB must be

understood. Rawlss elaboration of the idea of public reasoning requires that a public

reasoner will consider the effects of a RLCB on society in the context of a set of basic

principles that are accepted within that society.


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As a modern political theory, liberalism places reason at the centre both of the

practice of theorising and as an essential part of social progress. As Zuckert pointed out, the

original liberalism it is a rationalist doctrine in the sense that looks to reason (public reason in

a broad and nontechnical sense) for its bearings (2007: 266). For liberals like Rawls, human

rationality is something that develops and this is why he seeks to encourage uses of public

reasoning. That is, while people might practise their rationality purely as private reasoners,

this is neither good for them nor conducive to social progress. Rawls, as Habermas suggests,

proposed an intersubjective version of Kants principle of autonomy: we act autonomously

when we obey those laws which could be accepted by all concerned on the basis of a public

use of their reason (Habermas, 1995: 109).

This limits the forms of reasoning that Rawls would allow as means for determining

general social principles (and those that he would associate with living well). Outside of

public reason Rawls is prepared to admit almost any doctrine, reasonable or unreasonable,

into the background culture. Inside public reason, however, only reasonable liberal

conceptions of the basic political values are acceptable (von Rautenfeld, 2004: 64). While

the use of public reasoning is about making decisions for and within collectivities,

Habermass point about the role of public reasoning in attaining autonomy remains crucial, as

this is as much about the freedom of the individual as it is about collective decision-making.

Public reasoning is both a decision-making position and a practice of self. It is a

substantive set of principles to be used to answer fundamental questions... (Moon, 2003:

257) and a bridging concept between ideals of social cooperation and moral decision

personality (Esquith and Peterson, 1988: 301). The original position itself is both a means

to attain autonomy and way to ensure that rationally choosing representatives of the citizens

are subject to the specific constraints that guarantee an impartial judgment of practical

questions (Habermas, 1995: 111).


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Viewing a RLCB from the position of the public reasoner requires considering not

only its economic effects, but the consequences of a persistent patterns of inequality for

society in general and for peoples morale in particular. In reviewing a RLCB a public

reasoner would have to discuss Aschers claim that children lucky enough to have been

raised, acculturated, and educated by wealthy parents need not be allowed the additional good

fortune of inheriting their parents property. (Ascher, 1990: 7). 1

DiQuattros observations provide for both answers as to whether public reasoning

allows for a RLCB. He suggested that Rawlss well-ordered society [w]as a cooperative

social union in which everyone who is able is expected to live up to a social obligation. He

followed this with the contention that this is expressed in the difference principle in its

requirement that members of the most advantaged stratum must contribute to the common

good, which Rawls interprets as improving the well-being of the least advantaged

segment (DiQuattro, 1983: 57). The question is one of whether a persistent stratum of the

most advantaged conduces to the good of a persistent stratum of the least advantaged. If it is,

then, public reason may allow the choice of a RLCB.

A public reasoner would also have to consider Rawlss requirement that social and

economic inequalities are to be arranged so that they are... attached to offices and positions

open to all under conditions of fair equality of opportunity (1973: 83). If nothing else, a

Rawlsian must demand further consideration of a RLCB because it does not satisfy the the

full publicity condition that Rawls introduced in P olitical Liberalism . At least, they would

do so if they adopted Walls understanding of this condition. For in Walls account, full

publicity requires that arguments are not only accessible and comprehensible to those

engaged in public deliberation, but that they must be publicly acceptable. This standard rules

out modes of reasoning, methods of enquiry and beliefs and values that are not shared or

could not be accepted by all reasonable citizens (Wall, 1996: 503) Given that a variety of


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authors have based their objection to a RLCB on liberal values, which are the only ones that

should apply in this case, the public acceptability of a RLCB has not been established.

Using Reason to Scrutinise Fictions: Bent h am

Benthams attack on natural rights as a mischievous fiction is important in this

context because it draws attention to, if not demands consideration, of the notion that

beneficiaries of a RLCB enjoy luck. Luck may be being misused to refer to outcomes that

result from a society whose members accept and protect the social convention that is a

RLCB. A concern for using reason and promoting its use requires that liberals review the

social convention and see through the fiction that the implication of luck creates. This may

well be a crucial starting-point for public debate over the reasonableness of a RLCB.

The problem with fictions, for Bentham, is that people often do not recognize that

they are fictional and assume their truth or reality. Bentham thought that language commits

us to a belief in the objective existence of objects, events or states of being corresponding to

the words that have been used or, if not exactly a belief in their existence, then some sort of

a propensity and disposition to suppose the existence, the real existence, of a correspondent

object... (Stolzenberg, 1999: 244). The problem with natural rights was that people believed

that they really had them and could assert them against their government; whereas, when they

understood them as conventions whose existence depended on government, their persistence

could not be assumed. (Bentham, 1973: 268-9).

Bentham did not reject all fictions, as he could not do without a mass of terms that he

must classify as fictions, including rights, obligations, duties, trusts, motives, passions and

dispositions, powers... (Hume, 1993: 524). Instead, each fiction had to be examined in terms

of its contribution to utility. Bentham employs utilitarianism to assess the worth of various


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fictions, to sort out the good fictions from the bad (Stolzenberg, 1999: 238-9). This was true

even in the case of rights, as there is no right which ought not to be maintained so long as it

is upon the whole advantageous to the society that it should be maintained (Bentham, 1973:

269-70). Applying felicific calculus meant that some fictions could be defended, while

others could not.

A RLCB might be an illegitimate and mischievous fiction, but to reach this

conclusion would require a developing a calculation that, while useful, misses the more

important contribution to a discussion of a RLCB that derives from Benthams work. Since it

is in the construction of inheritance as luck that a more dangerous fiction can be found.

The representation of inheritance as luck is common to a number of liberal theorists.

DiQuattro claimed that Hayek and Friedman, argue explicitly, as most neoclassical theorists

imply, that luck determines largely who gets (and should get) what in capitalist market

society, so that if one is fortunate enough to be born into a wealthy family... then one

qualifies for disproportionate rewards (1983: 57-8). Hayek wondered whether we ought to

encourage in the young the belief that when they really try they will succeed, or rather

emphasize that inevitably some unworthy will succeed and some worthy will fail (Hayek, as

quoted in DiQuattro, 1983: 58). While Friedman claimed that most differences of status or

position or wealth can be regarded as the product of chance at a far enoug h remove (1962:

165-6 emphasis added).

The problem with representing this as luck is that we are not really dealing with

luck. We are dealing with an unexamined social convention that produces luck. A coin falling

in a desired way might be described as luck. Living in a society in which a RLCB is

recognized is not a chance event. It is a result of a conscious decision to allow property to be

passed on in that way. To refer to it as luck and to defend a right to this luck places it


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outside critical reflection. In fact, it is a social convention that ought to be subjected to

rational scrutiny, and not treated as a natural occurrence that requires no defence.

As Sherman argued, we do not think critically about a RLCB because we treat it as a

natural product of a private property regime and assume that a society that protects private

property must necessarily allow the property owner to designate her successors upon her

death. As Sherman went on to point out, this luck has not always existed and the ancient

Greeks of Athenss Golden Age managed quite well without free testation, and in

England... it was not until the enactment of the Statute of Wills in 1540 that the owner of a

freehold in land was empowered to devise it (Sherman 1999: 1285).

When it comes to a RLCB, we must first accept that no natural RLCB exists (even

when it is said to derive from the relationship of parenting, which is itself a social

convention). Next, we must reflect carefully on luck of a beneficiary of a life-changing

bequest because it is a result of deliberately accepted principles. We must then subject a

RLCB to felicific calculus, which means that we may choose to accept this fiction after

calculating its contribution to utility.

An important issue that will arise concerning the utility of a RLCB is its contribution

to the sum of available goods. First, it is defended because it provides an incentive to work.

President Roosevelt, for example, believed that the desire on the part of the breadwinner to

leave his children well off was a potent source of thrift and ambition (Ascher, 1990: 101).

A RLCB may also promote saving (Stiglitz 1978). Ventry, though, has argued that the claim

that an estate and gift tax would usher in the demise of family farms and closely-held

business is, at best, misleading, and at worst, disingenuous. Further, against critics of such

a tax, while generating significant revenues, Ventry countered that it does not threaten

aggregate saving, labor supply, or economic growth,... produce prohibitive compliance costs,


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primarily tax wealth that has already been taxed, or ... effect... the rate of charitable

contributions (2000: 1).

Recognising t h e Limits of Reason: H ayek

If it is anything, Hayeks work is an ongoing call for the recognition of the limits of

human reason. In this context, it is important that Hayek is usually categorized as a liberal in

the Scottish tradition of Smith and Hume (Romar, 2009: 60). For Hayeks works are

consistent with Humes scepticism (the extent of this consistency is evident when reading

Beck (2009) with Castiglione (2006)). True individualists, for Hayek were anti-

rationalist due to their humility toward the impersonal and anonymous social processes by

which individuals help to create things greater than they know, and despite the fact that their

own individual reason is imperfect and limited (Beck, 2009: 572)

Hayeks intention was to deflate the ambitions of social engineers, and he does this by

reminding them that they lack the ability to rationally organize the lives of others. A human

mind cannot hold and process the information necessary to predict the effects of interventions

in other peoples lives and one of the most important of the effects of these interventions is to

diminish others by deciding for them. All of these objections to the ambitions of social

engineers may apply to the ambitions of those who leave wills, with the added problem that

they cannot be held responsible for the undesirable consequences of their bequests. 2

Hayek believed that many intellectuals of his t ime held an uncritical and dangerous

view of the power of human reason... (Connin, 1990: 298). This was because they held to a

nave form of rationalism, which Hayek sometimes referred to as constructive rationalism.

Adherents of constructive rationalism believe that human reason can design-to-order a


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range of benevolent social arrangements and institutions. The problem with this was that it

was based on false assumptions about the capabilities of the human mind to absorb, analyse,

understand and utilize knowledge about the social world we hope to restructure (Connin,

1990: 298).

Two factors prevent the accumulation of the knowledge necessary for social

engineering. First, the knowledge cannot be accumulated and, second, it cannot be

concentrated in the mind of one person. In the social order, knowledge is fragmented,

dispersed, constantly changing and, ultimately, subjective that is, belonging to, and only

making sense to, a particular person (Connin, 1990: 299). Even if the required knowledge

was of a kind that allowed for meaningful accumulation, no one person could have that

knowledge, as relevant knowledge is never given or possessed in its totality by any one

person (Connin, 1990: 303).

In his attack on social engineers in Th e Road to Serfdom , Hayek rejects any attempts

to provide for others apart from ensuring them a minimum standard of living. He argued that

nothing more should be done than to ensure security against severe physical privation, [or]

the certainty of a given minimum sustenance for all... (Hayek, 1986: 89). Every beneficiary

of a bequest may want to have their life engineered, but this desire seems little different from

the socialists desire to free people from alienation by liberating them from the burdens of

civilization including the burdens of disciplined work, responsibility, risk-taking, saving,

honesty, the honouring of promises... (Hayek, 1988: 64).

The difference between bequest and the provision of social security may only be with

respect to scale. The social engineer seeking to improve the lives of disadvantaged people is

no different from those who bequeath property to others in order to improve their lives.

Importantly, bequests do not reward productivity. As Haslett pointed out, according to any

reasonable interpretation of productivity, the wealth people get through inheritance has


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nothing to do with their productivity (1986: 127). Nor do bequests promote productivity,

and might be thought to discourage it. As West argued, it may be better for them in every

way to be left with only a moderate amount of property. The inheritance of a large fortune

may prove an encouragement to idleness rather than an incentive to industry, and may result

in injury both to the heir and to society (1893: 430).

Predicting the effects of a bequest requires less information than predicting the effects

of any exercise in social engineering, but that does not mean that it can be done. The bequest

will take effect in a social situation and so predicting its effects will still require the

assimilation of more information than a human mind may be capable of assimilating. Further,

whatever we might believe, parents cannot know our children as fully as we would need to

know them to predict the way a bequest will affect them. The fact that bequests are

posthumous imposes a considerable constraint on parents capacities to predict the way that

their children will be affected by a bequest.

Both social engineers and those who bequeath want to help others. As dismissive and

hostile to social engineers as he was, Hayeks concern was not with their desire to do good,

but with their capacity to do good. The problems derive not from the motivations of social

engineers, but from their conceits concerning their capacities to obtain, synthesize and

employ the knowledge required for positively affecting other peoples lives. These objections

may apply just as readily to the position of a person who bequeaths. While they are closer to

those who are to benefit form their actions, those who bequeath are usually too close to and

too interested in those to whom they bequeath to be considered in any way objective in their

assessments. Just as we refuse the social engineers claim to produce good through

controlling the lives of others, we may have to refuse a testators desire to produce a good life

for the beneficiaries of their wills.


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Bequeathing may be worse than social engineering, however, because those who

bequeath bear no responsibility for the consequences of their bequest. As Sherman

contended, making a will is an exercise of power without responsibility (1999: 1284).

Those who bequeath will be convinced that they are doing the right thing, but they will never

have to take responsibility if they are wrong. Thus, as Sherman pointed out, we encounter

the obvious moral hazard problems that arise whenever an actor knows that she will suffer no

consequences from her actions (1294).

Respecting t h e Individual: Responsibility, C h oice and Work

If liberalism has been associated with any idea, it is that of the importance of respect

for individual autonomy. Singh has suggested that many liberals, from Mill to Rawls, see

personal autonomy as paramount in civil society. They see human dignity to consist largely

of autonomy and quoted Charles Taylors explanation that autonomy lies in the ability of

each person to determine for himself or herself a view of the good life (Singh 1997: 170). In

short, being responsbile for ourselves is fundamental to liberalism.

This need not mean a lack of concern with community, and Carse is right to

distinguish a category of liberal individualists from other types of liberal. 3 The community

may be the vehicle through which individual responsibility is pursued or maximized. Many

liberals share Ignatieefs view that, while liberals disagree violently with one another as to

what liberalism means if I have to choose between the community and the individual I

really do want to privilege individual freedom (Ignatieef et al , 2003: 259). But others are

likely to share Taylors position you cant just say, in a blanket way, that we are for t h e


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community or for t h e individual . It depends on the issue, and it depends on the kind of

importance the issue has for both. (259)

Responsibility and Work: Locke

An important manifestation of the principle of individual responsibility lies in the

ability to choose how to invest our labour power. Lockes ideas concerning the importance of

labour to property represent a clear and significant statement of the link between labour and

property: labour, in the beginning, gave a right of property (1824: 237). But while this

might lead to the labour theory of value, it can also lead to the value theory of labour. This is

the notion that work is valuable to the individual in that the products of labour are the

realisation of oneself in the world. Man, Locke wrote, by being master of himself, and

proprietor of his own person, and the actions or labour of it, had still in himself the great

foundation of property ( 236). Crucially, for Locke, the moment at which people acquire

property is the moment when they invest something of themselves in those objects or tracts of

land.

A Lockean objection might be established on the basis of Aschers contention that a

childs right to inheritance rested, in Lockes words, on their Right to be nourishd and

maintained by their Parents. (1990: 76). A RLCB might be thought legitimate with respect

to children unable to nourish and otherwise maintain themselves and objectionable for

children who were able to do so. This might be to overstate the significance of this one

passage, but, more importantly, this objection seems much like those developed from

Hayeks and Friedmans work, which have already been discussed.


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Lockes own discussion of inheritance bypasses questions of the basis of the

acquisition that underpins the transfer of property. His interest in using inheritance as a

means of binding beneficiaries to existing political authority leads him to ignore questions of

the acquisition that inheritance has to represent. Locke is more interested in binding heirs to

existing political authorities than he is with the RLCB. Those hwo inherit their fathers estate

must take it with the condition that it is under, that is, of submitting to the government of the

commonwealth under whose jurisdiction it is as far forth as any subject of it (Gauthier,

1966: 40). Thus, by controlling the conditions of inheritance, fathers oblige their children to

obedience to themselves, even when they are past minority, and most commonly, too, subject

them to this or that political power(38).

When attention shifts to Lockes views concerning the legitimate acquisition of

property, we find a profound connection between individual labour and property. Tarlton

noted the poetics and metaphysics of that joining, mixing, adding, and annexing of the

individuals self (which includes ones labour, as part of the property therein) to things to

create a private property for the individual (2006: 110). The acquisition of property begins

with the idea that the spiritual ego is the proprietor of itself and of the physical person. ... It

is this power over ones own person that makes appropriation possible (Olivecrona, 1974b:

225). Waldron went so far as to suggest that Lockes labor theory works only against a

background of labors significance in Gods overall plan for the survival of the human beings

he has created. Laboring is ... the naturally requisite next step following our creation...

(2005: 94).

Thus, a man could make things his own by infusing something of himself into them.

In doing so he made them part of himself and extended to them the mastery he had over his

own person and actions. {Olivecrona, 1974b: 226). Whatever this man had worked on then

contains something more than it does by nature alone because the personality of the labourer


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has been infused into it (Olivecrona, 1974a 224). The moment of acquisition, then, is a

crucial moment of being. Since being ones own means being a part of oneself, making a

thing ones own means making it part of oneself (Olivecrona, 1974b: 225). To do this,

requires that I infuse something of my personality into an object in spending some labour

on it (Olivecrona, 1974a: 224).

Acquisition by bequest involves no infusion or extension of self, at least not by the

person who acquires the property. If an heir has done nothing to acquire an interest in the

property, then no act of imagination has been performed, no work has been done and no

investment of self has occurred. As Ascher pointed out, healthy, adult children generally do

not participate in the acquisition of the property they inherit. Even Locke seems to have

realized that his theory of property did not justify inheritance, for, as discussed above, he

justified inheritance separately, as a natural right (Ascher, 1990: 81).

Gifting can be distinguished from bequeathing and can be defended against some of

the problems associated with transfers that do not reflect Lockean ideas concerning legitimate

acquisition. 4 The difference between gifting and bequeathing is that gifting constitutes an

existential relationship in which the property given is a point of connection and part of a

relationship formed by the one who gives and the one who receives. It is not simply a case of

the recipient showing gratitude; it is the fact that in accepting the gift they take part in a

relation to the other as recipient that, in turn, might produce a connection to the acquired

property. Thus, not only does the giver have to make something into a gift, the recipient must

recognize and respond to it as a gift.

The giving, then, confirms a relationship, or better is an act of relating. 5 This is so

even when an intermediary transfers the gift between giver and receiver. A beneficiary of a

will has invested nothing of themselves at the moment of acquisition and, if anyone can be

understood to have done something with or to the property, it is executors of wills and not


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their beneficiaries. In gifting, a relationship is instantiated and the parties involved in the

transfer enact a connection. In bequeathing, no relationship is instantiated and the parties

involved in the transfer enact no connection that might be taken to establish a relationship to

the property bequeathed.

A utonomy and C h oice: Friedman

For some liberals, sometimes called libertarians, individual freedom is about

individuals being free to make choices. Many do not distinguish between irresponsible and

responsible choices, or enabling and disabling choices. Other liberals do. Indeed, a persistent

question in this context concerns whether any and every individual choice deserves respect

and is to be promoted. It was at the core of John Stuart Mills rejection of Benthams felicific

calculus. It may also be reflected in an elitist attitude amongst many liberals, which led them

to temper any nascent individualism with a reluctance to allow all individuals the freedom to

take part in the choice of their political representatives. (See Hamilton, 2008)

The more fundamental issue that arises in this context concerns whether liberals

respect all choices, or just those that reflect and promote individual responsibility. J.S. Mills

objection to Benthams position was that the pursuit of lower forms of pleasure was

destructive of ones humanity. Mill was not clear as to how he might implement his views that

higher pleasures were the right choices, but his famous argument concerning the superiority

of the pleasures of a human being against those of a pig (Mill 1991: 140) bear witness to his

reluctance to accept all choices as equally valid.


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Friedmans defence of a right of inheritance because the family is the ultimate

operative unit in our society was more a reflection of practicalities than principles. It was a

result of our belief that parents are best placed to protect their children and to provide for

their development into responsible individuals for whom freedom is appropriate. However,

he continues, the children are responsible individuals in embryo, and a believer in freedom

believes in protecting their rights (Friedman, 1962: 33). The issue here relates to when it is

appropriate to prevent parents from determining the life choices of their adult children. A

trust to supply for a person who has not yet come of age might be acceptable, but giving

money to an adult child is less obviously supported by Freidmans ideas.

It will no doubt appear counter-intuitive that having less money creates more choice,

but this must follow because of the responsibility that is taken from the shoulders of those

whose futures are provided for. Above a minimum level required for subsistence, and

Freidman was open to minium payments to the poor (see Thomas, 2006), the choices

available to each individual are her or his responsibility. This is in two senses. The first is that

their choices are something for which they are responsible (for which they must bear the

consequences). Second, each individual is to acquire and embrace her or his responsibility (in

that she or he is to become more responsible for her or himself). Responsibility is something

that people must embrace and develop their capacities for. It is one thing to have space to

manoeuvre and another to have the capacity to move within that space (no matter how broad

the body of water, those who cannot swim will be unable to take advantage of that breadth).

For Freidman, only that a set of social institutions that stresses individual

responsibility, that treats the individual... as responsible for and to himself, will lead to a

higher and more desirable moral climate than a set of institutions that stresses the lack of

responsibility of the individual... (Friedman, 1972: 87). Taking responsibility for ourselves

is no simple matter and requires that we accept a cluster of challenges: to plan your future,


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to deal with your own mistakes as best you can, to deal with other peoples mistakes as best

you can, to make the best of your good luck, and your bad luck as well (Schmidtz, 1998:

10). It even requires that we are committed to working for a living. Above all, we

internalize responsibility when we take responsibility for the future (Schmidtz, 1998: 10).

It is for this reason that those who follow Friedman are concerned about the culture of

dependence that results when financial support is simply provided to those who claim it. The

problem is that reliance on public assistance, in itself, generates dysfunctional beliefs,

values, and attitudes (Schneider and Jacoby 2003: 214). To rely on money coming from a

source that is independent of individual will and effort is enervating. In the end, Friedman

argued, the paternalistic ground is... the most troublesome to a liberal; for it involves the

acceptance of a principle that some shall decide for others This, in his view, is a principle

that a liberal would find objectionable in most applications (Friedman, 1962: 33-4).

Just as importantly, a RLCB is objectionable because it is an inappropriate choice

space to create for the individual who bequeaths. That is, to defend a RLCB is to defend a

right to interfere in the choices of others. As Sherman pointed out, it is offensive to aid the

dead in controlling the personal choices of the living (Sherman, 1999: 1273). This, from a

Friedmanite perspective, is an undesirable extension of the choice spaces that are legitimately

open to people. I must be given the freedom to choose for myself, but the idea that I should

be free to cast a shadow over the lives of others may be a mistake. The fact that beneficiaries

of wills might want to have this shadow cast over their lives is not important. The recipients

of any benefit for which they have not worked are always likely to desire that benefit. We are

no more justified in giving people money from the public purse simply because they want it

and think that it will increase their choice space than we are allowing them to inherit because

they believe that they will benefit from the inheritance.


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For Friedmanite liberals, the question must always be one of enhancing an

individuals opportunities and capacities to make choices. While most people would conclude

that more money means more choice, this may not follow. Simply giving another person

money might increase their choices, but, more importantly, it will undermine their

responsibility for their own lives. So, even if increased the choices available to those

individuals who benefit from a RLCB, it does not increase their responsibility. Parents can be

expected to provide for their children until they reach adulthood. To give them the capacity to

affect their adult childrens responsibility thereafter may be objectionable, from a

Friedmanite perspective.

Conclusion

The problem with a RLCB is that it has not been subjected to the public scrutiny that

many liberals, including Rawls, promote. This scrutiny, which must be based on a belief in

the need to think matters through rationally, requires considering the possibility that it

perpetrates a pernicious fiction with respect to the luck of beneficiaries. Those who

scrutinise a RLCB must also consider the possibility that the control given to those who make

such bequeaths exceeds their capacity for responsibly exercising that control. The next

questions that liberals must ask about a RLCB concern whether working to acquire property

is basic to its acquisition and whether a RLCB will enhance beneficiaries ability to take

responsibility for their choices and enhance their capacity for choice. The RLCB is an

important right within liberal-democracies and it is for liberals to ensure that it is legitimately

part of such societies. Despite calls to do so, they have not yet done this.

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1 We must note, here, that admission to a selective college is one of the few market commodities that cannot be

bought outright, the pro-rich distribution of high school quality and S AT preparation activity leaves a decidedly

positive correlation between scores and family income (Clotfelter, 2000: 965).

2 Ascher rejected the view that Hayeks theories supported a RLCB because the benefits of the family Hayek

dwells on, acculturation and education, are separable from purely financial advantage inheritance represents. ... We

can devise a system that allows (or even encourages) parents to use their material advantages to benefit their

children through acculturation and education yet prohibit transfers of purely financial advantage {Ascher, 1990:

90).

3 Carse has argued that only some liberals are individualists. Liberal individualists are committed to two basic

principles: the normative priority of the individual to community, that is, to the view that all moral obligations and

social arrangements stand in need of justification to the individual and a universalistic conception of morality;


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that is, to a conception of morality that is justified not only to each individual, but to every individual. This

disqualifies Bentham and other utilitarians who justify moral requirements on the grounds of general social

welfare or the collective good [because] they do not recognize the normative priority of the individual despite

their liberalism (1994: 185).

4 Munzer, for example, discusses a potential move to gratuitous transfers and argued for a steeply progressive

taxation on these gifts. (Munzer 1990)

5 As is well known, Mauss guiding question is: What is the principle of right and interest in backward or archaic

societies that makes it obligatory to return a present one has received? What force is there in the thing given that

makes the recipient give something back? He rarely refers to this process of giving and making a return as

reciprocity. His answer, broadly speaking, is that human beings everywhere find the personal character of the gift

compelling and are especially susceptible to its evocation of the most dif fuse social and spiritual ties (Hart, 2007:

481).

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Liberalism and the Right to Make Life-Changing Bequests