Nozick Essay, Research Paper

According to Nozick there are three sets of rules of justice, defining:

1. how things not previously possessed by anyone may be acquired;

2. how possession may be transferred from one person to another; and

3. what must be done to rectify injustices arising from violations of (1)

and (2).

A distribution is just if it has arisen in accordance with these three sets

of rules. See pp. 151-2.

Nozick does not try to specify in detail the rules under the above three

headings (’I shall not attempt that task here’, p. 153). However, he does

give some further information on rules of acquisition; see p. 174ff. He

follows John Locke who as Nozick interprets him held that a person has a

right (1) to own what he makes, and (2) to appropriate anything not already

owned, provided he leaves ‘enough and as good’ for others – i.e. provided

his appropriation leaves them no worse off. (Nozick calls this the ‘Lockean

proviso’.) It is not clear how Nozick would defend (1) against his own

criticisms of Locke (p. 174-5). As for (2), he points out that the proviso

cannot reasonably be taken to mean that there can be no worsening of

others’ opportunities to appropriate; it must mean that in other respects

they are no worse off. Nozick raises the question ‘No worse than they would

be how?’ What is the baseline? In Rawls’s theory the representative

worst-off person must be no worse off than he would be under any other

possible arrangement. Nozick rejects this, but does not define another

baseline: ‘This question of fixing a baseline needs more detailed

investigation that we are able to give it here’; p. 177. However, ‘whether

or not Locke’s particular theory of appropriation can be spelled out so as

to handle various difficulties, I assume that any adequate theory of

Justice in acquisition will contain a proviso similar to the weaker of the

ones we have attributed to Locke’; p. 178. Nozick says that the proviso is

violated if a person appropriates all of something necessary to life – or

purchases it, or combines with the other owners of it, or finds himself the

sole owner when other supplies are lost (e.g. when all the other water

holes dry up). Nozick refers to the possibility of losing entitlement to

something that was originally yours because of developments since, such as

the drying up of other waterholes, as the ‘historical shadow’ of the

Lockean proviso; p. 180.

Comparison with Rawls’s Theory

Nozick classifies theories of justice as (1) either end-result or

historical, and (2) either patterned or unpatterned. The entitlement theory

is historical and unpatterned. It does not demand that the distribution

resulting from just acquisitions, transfers and rectifications be

patterned, i.e. correlated with anything else (such as moral merit, need,

usefulness to society); people may be entitled to things got by chance or

gift. Any distribution, irrespective of any pattern it may or may not have,

is just provided it has the appropriate history, provided it did in fact

come about in accordance with the rules of acquisition, transfer and

rectification. Rawls’s theory on the other hand, is an end-result theory.

Choice of principles behind a ‘veil of ignorance’, must be based on

calculations about what people are likely to end up with under the various

possible sets of principles – there is no other way of choosing (is

there?); p. 202. Therefore if any historical entitlement theory is correct,

Rawls’s approach is wrong.

Notice that this imposes on Rawls in the job of showing that no possible

version of an historical entitlement theory could be correct. He might

reply that he intends to stick to his own theory until someone actually

produces a correct entitlement theory; Nozick has not, because his theory

is merely a sketch with many important details not worked out.

Nozick points out (p. 207 ff) an analogy between his own entitlement theory

and the process by which in Rawls’s theory the rules of justice are arrived

at. Rawls specifies an initial situation and a process of deliberation, and

say that whatever rules results from this are the rules of justice;

similarly Nozick specifies a process, and says that whatever distribution

results is just. ‘Each theory specifies starting points and processes of

transformation, and each accepts whatever comes out’. But Rawls’s process

for generating principles cannot generate process principles, but only

end-result principles. Nozick says that this is ironic. It presents a

dilemma: if processes are ’so great’, it is a defect that the process

cannot lead to process principles of justice; if processes are not so

great, then why should we accept the outcome of Rawls’s process? (This is a

weak argument. Rawls can claim that his process is ‘great’ without having

to hold that all processes, just because they are processes, are great.)

There are many pages of criticism of details of Rawls’s argument which we

cannot follow here (or even there, sometimes!).

Patterns and Liberty

Others besides Rawls have put forward ‘pattern’ theories. Nozick advances

an objection against all of them: part of ownership is the liberty to give

things to other people. If justice consists in the pattern in which goods

are distributed, then giving – which changes the pattern – will be unjust.

Thus pattern theories do not merely correct the mal-distribution which

allegedly happens under an entitlement theory; they also alter the concept

of possession. ‘The view that holding must be patterned perhaps will seem

less plausible when it is seen to have the consequence that people may not

choose to do acts that upset the patterning, even with things they

legitimately hold’. (See p. 219-20). Note Nozick’s concept of ownership: a

right to do whatever you choose with what is your own.

No Central Distributor

‘Pattern’ theories sometimes picture some person or institution faced with

the problem of fairly distributing the sum total of good things: they

should be distributed in a pattern corresponding to merit, need, etc. But,

Nozick maintains, things are never collected into a sum total to be

allocated by a central distributing authority. p. 149 The term distributive

justice is not a neutral one. Hearing the term distribution most people

presume that some thing or mechanism uses some principle or criterion to

give out a supply of things… There is no central distributor, no person

or group entitled to control all the resources, jointly deciding how they

are to be doled out. ‘If things fell from heaven like manna, and no one had

any special entitlement to any portion of it…’ (p. 198), ‘there might be

a more compelling reason to search for a pattern. But since things come

into existence already held (or with agreements already made about how they

are to be held), there is no need to search for some pattern for unheld

holdings to fit; and since the process whereby holdings actually come into

being or are shaped, itself needn’t realize any particular pattern, there

is no reason to expect any pattern to result… In the

non-manna-from-heaven world in which things have to be made or produced or

transformed by people, there is no separate process of distribution for a

theory of distributions to be a theory of’; p. 219.

No Presumption of Equality

Nozick ask why it is to be assumed that differences between persons are

arbitrary unless they can be justified. A central distributor would perhaps

be bound to treat all alike unless for good reason, but in a free society

distribution results from many localized exchanges between individuals

entitled to bestow their holdings as they wish. p. 223.

The Natural Lottery not Unjust

According to Rawls, the veil of ignorance should conceal the distribution

of natural talents, because rules reflecting this distribution would not be

just. But according to Nozick, it is not true that a person deserves

something only if he also deserves whatever he used, including natural

talents, to obtain it. ‘It needn’t be that the foundations underlying

desert are themselves deserved, all the way down’; p. 225. ‘Whether or not

people’s natural assets are arbitrary from a moral point of view they are

entitled to them, and to what flows from them’; p. 226.

Equal Opportunity not a Right

Possessions that people are entitled to may not be seized to provide

equality of opportunity for others. Life is not a race; ‘there is no

unified race’, p. 235. There are individual exchanges, in which the parties

do not usually care about desert or handicaps, but simply about what they

get in exchange. ‘No centralized process judges people’s use of the

opportunities they had; that is not what the process of social cooperation

and exchange are for’; p. 236. (Statements about what institutions are for

are always suspect. How do we decide what exchange is for, and anyway why

would this impose a norm?)

Justice and Equality

People often note that wealth is unequally distributed, and proceed

immediately to discuss how it might be made more equal. But on the

entitlement theory one cannot decide whether redistribution is necessary

merely by looking at the prevailing pattern of distribution. Whether it

just depends on how the distribution came about. If it came about in

accordance with the rules of acquisition, transfer and rectification, then

it is not unjust, however unequal it may be.

Redistributive Action by Government Unjust

According to Nozick, taxation is equivalent to forced labour. Taking a

proportion of earnings is like making a person work a proportion of his

working time for another’s purposes. It is unjust to force a person to work

for another’s benefit.

According to Locke (Section 27), a person has a property in himself and in

his labour; each person has liberty to decide what he will do (subject to

the rights of others), and a right to reap the benefits of his own actions.

But tax-financed social welfare programs institute something like ownership

by others of people and their actions. The poor have a claim on the actions

and products of others, whether or not those others freely entered into

relationships that might give rise to such claims, whether or not they

voluntarily take these claims upon themselves, in charity or as part of an

exchange. It is inconsistent to allow a right to emigrate, when there is no

right to stay and opt out; see p. 173.

(Are there any enforceable duties to do things for others? E. g. is there a

duty to help in floods or earthquakes? Enforceable duties to help do not

imply that actions or persons are owned. Part of ownership is the right to

sell; the fact that someone has a duty to help me does not imply that I

have a right to sell his help. Parents are not partly owned by their

children. Nozick’s analogies need to be analysed carefully. )

Rectification of Past Injustice

Nozick does not attempt to work out the rules of rectification. However he

says that it is an important task in each society to work out what operable

policy best approximates the results of a detailed application of rules of

rectification. It is possible that some tax-financed welfare program, or

even Rawls’s rule of favouring the worst off group, may be justified as a

means of rectification, if it can be assumed that the better off are

beneficiaries of past injustices, and the worse off victims. He warns that

his entitlement theory cannot be used to condemn any particular welfare

scheme unless it is clear that it cannot be justified as a means of

rectifying past injustices. See p. 231. (Will this warning be heeded, or

will the theory be taken as a justification of the existing

distributions?).

Nozick’s theory of rights

In his account of the possible justification of the state, and in his

entitlement theory of justice, Nozick postulates absolute rights – not

merely prima facie rights which might be overridden, but boundaries not to

be crossed without the free consent of the persons whose rights they are.

Other people’s rights are constraints upon our actions toward our own

goals.

Why must we respect such constraints? When a person makes a thing, or finds

it unowned and appropriates it, why must others not use it without his

permission – no matter how great their need, no matter how such things are

distributed?

Nozick’s answer is that such constraints express the inviolability of other

persons; a person is not to be used to benefit others – this would not

sufficiently respect the fact that he is a separate person, that his is the

only life he has. There is no transcendent social whole for the sake of

which individuals can be sacrificed, there are only other individuals. See

p. 32-3, 50-1. In effect Nozick agrees with Rawls’s criticism of

Utilitarianism: in adding and subtracting the costs and benefits to all the

persons affected, and in allowing benefits to one person to offset costs to

others, Utilitarianism does not sufficiently acknowledge the separateness

of persons.

Some criticisms of Nozick’s theory

From T. Nagel ‘Libertarianism without Foundations’, Yale Law Journal

(K/29/.A4) 85 (1975) p. 136f.

(1) It is risky to argue from small-scale examples to universal principles.

Nozick supposes ‘that it is possible to determine what governments may and

should do by first asking what individuals, taken a few at a time in

isolation from large-scale society, may do, and then applying the resultant

principles to all possible circumstances, including those which involve

billions of people, complicated political and economic institutions, and

thousands of years of history. What is more surprising, he discovers in

himself intuitions about the moral requirements on men in a state of nature

which he is willing to endorse as universal principles unmodified in their

cumulative effects when applied in any circumstances whatever…. It is

hard to see how anyone could seriously arrive at firm moral opinions about

the universal principles of human conduct without considering what it would

be like if they were universally applied, in iterations which might create

complex effects of scale’.

(2) Nozick’s intuitions are in any case wrong, because they see as absolute

some rights that are only prima facie rights.

‘The intuition that Nozick discovers in himself is that everyone has an

absolute right to be free from coercion, and an absolute right to acquire

and dispose of his property – so long as he is not violating the same

rights of others and so long as his acquisition of property does not, for

example, give him sole title to the formerly public water supply of a

desert community. Nozick’s intuition is that each person is entitled to his

talents and abilities, and to whatever he can make, get, or buy with his

own efforts, with the help of others, or with plain luck. He is entitled to

keep it or do anything he wants with it, and whomever he gives it to is

thereby equally entitled to it. Moreover, anyone is entitled to whatever he

ends up with as a result of the indefinite repetition of this process, over

however many generations….

‘Nozick’s moral intuitions seem wrong even on a small scale. He denies that

any of the rights he detects may be overridden merely to do good or prevent

evil. But even if it is not permissible to murder or maim an innocent

person to promote some highly desirable result, the protected rights do not

all have the same degree of importance… It is far less plausible to

maintain that taking some of an innocent man’s property is an impermissible

means for the prevention of a serious evil, than it is to maintain that

killing him is impermissible. These rights vary in importance and some are

not absolute even in the state of nature…

‘Rights limit the pursuit of worthwhile ends, but they can also sometimes

be overridden if the ends are sufficiently important. The only way to make

progress in understanding the nature of individual rights is to investigate

their sources and their relations to each other and to the values on whose

pursuit they set limits’.

(3) Nozick is wrong in holding that benefit to one person can never offset

cost to another: sometimes it can.

To make sense of utilitarianism,

‘All one needs is the belief, shared by most people, that it is better for

each of 10 people to receive a benefit than for one person to receive it,

worse for 10 people to be harmed than for one person to be similarly

harmed, better for one person to benefit greatly than for another to

benefit slightly, and so forth…. If a choice among such alternatives does

not involve the violation of any rights or entitlements, but only the

allocation of limited time or resources, then we regard those comparisons

as excellent reasons for picking one alternative rather than another. If we

can help either 10 people or one person, not included in the 10, and we

help the 10, then we can say that rescue of the 10 outweighs the loss of

the one, despite the fact that he does not get some overbalancing good from

his sacrifice, and his is the only life he has. So for the purpose of

comparing possible outcomes of action, where the violation of rights is not

in question, it is clear that the distinctness of individuals does not

prevent balancing of benefits and harms across persons. If special

constraints enter in when a sacrifice is to be imposed on someone as a

means to the achievement of a desirable outcome, their source must lie

elsewhere. Such constraints should not derive from a principle which also

has the consequence that practically nothing can be said about the relative

desirability of situations involving numbers of different people.

(4) Nozick is wrong about the basis of rights.

‘Furthermore, the source of rights of the general kind Nozick advocates

cannot be discovered by concentrating, as he suggests we should, on the

meaning of individual human lives and the value of shaping one’s own life

and forming a general conception of it. Vague as his suggestions are, they

all suffer from an error of focus, for they concentrate solely on features

of persons that make it bad for certain things to happen to them, and good

for them to have the opportunity to do certain things. But rights of the

kind that interest Nozick are not rights that certain things not happen to

you, or rights to be provided with certain opportunities. Rather they are

rights not to be interfered with in certain activities. They give rise to

claims not against the world at large, but only against someone who

contemplates deliberately violating them The relation between the possessor

of the right and the actor, rather than just the intrinsic nature of the

possessor and of his life, must enter into the analysis of the right and

the explication of its basis.

‘Any theory of rights must explain this structural feature, even if it does

not follow Nozick in elevating the unimpeded exercise of the will into the

supreme principle of morality. It is of the first importance that your

right not to be assaulted is not a right that everyone do what is required

to ensure that you are not assaulted. It is merely a right not to be

assaulted, and it is correlated with other people’s duty not to assault

you. This cannot be explained simply by the fact that it is bad to be

assaulted, which is merely an item in the catalog of values by which the

desirability or undesirability of occurrences or sets of occurrences is to

be weighed. That assault is disagreeable or bad does not explain why the

prohibition of it should serve as a constraint on the pursuit of other

values or the avoidance of other harms, even if those other values outweigh

the badness of assault in a pure calculation of the relative desirability

of possible outcomes. Sometimes one is required to choose the less

desirable alternative because to achieve the more desirable one would have

to violate a right….

‘An explanation of the basis of right would therefore have to concentrate

on the actor and his relation to the person he is constrained not to treat

in certain ways, even to achieve very desirable ends. And it would have to

explore the interaction between those constraints, and the goals whose

pursuit they constrain. There is no reason to think that either in personal

life or in society the force of every right will be absolute or nearly

absolute, i.e. never capable of being overridden by consequential

considerations. Rights not to be deliberately killed, injured, tormented,

or imprisoned are very powerful and limit the pursuit of any goal. More

limited restrictions of liberty of action, restrictions on the use of

property, restrictions on contracts, are simply less serious and therefore

provide less powerful constraints’.

(5) The distinction between end-result and historical theories of justice

is not as sharp as Nozick supposes (if we recognize that some rights are

not absolute, but may be subordinated to certain valuable ends).

A political theory might -

‘assign society the function of promoting certain goods and preventing

certain evils, within limits set by the differing constraints of different

individual rights. It would not judge processes and procedures solely by

their tendency to produce certain outcomes, nor would it judge outcomes

solely by the processes that had produced them. Social institutions and the

procedures defining them would be assessed by reference both to their

respect for individual rights and liberty, and to their tendency to promote

desirable ends like the general welfare.

‘Nozick offers a classification of principles of distributive justice into

which such a theory does not fit…. Suppose a theory says that a

distribution is just if it results from a process governed by rules that

reflect (a) the suitability of certain patterns, (b) the desirability of

increasing certain good results and decreasing certain evils independently

of any pattern, and (c) a respect for individual rights of differing

importance, Such a theory will be at bottom neither purely historical nor

purely patterned. It will be formally historical, but the “historical” or

process criterion will be partially determined by considerations of pattern

and considerations of total outcome. Therefore Nozick’s concentrated attack

on patterned principles and nonhistorical principles provides no reason to

think that his alternative is correct’.

Note: ‘More specifically, his arguments against Rawls are seriously

weakened by a Procrustean attempt to portray Rawls’s principle of

distributive justice as a nonhistorical or end-result principle. Rawls does

not maintain that the justice of a distribution can be determined

independently of how it was produced. He believes that its justice depends

on the justice of the institutions, including legal institutions defining

entitlement, which were involved in its production. These are assessed only

partly on the basis of their tendency to promote a certain distributive

end-state. Rawls, for example, gives priority to the preservation of

individual liberty… [which] certainly restricts the procedures by which a

distribution can be justly arrived at.’

(6) On the Wilt Chamberlain example, by which Nozick shows that

preservation of a pattern would violate the liberty of property owners to

do as they wish with their own: again, he supposes that if there is a

right, it is absolute.

‘It only seems a problem to Nozick, and a further violation of liberty,

because he erroneously interprets the notion of a patterned principle as

specifying a distribution of absolute entitlements (like those he believes

in) to the wealth or property distributed. But absolute entitlement to

property is not what would be allocated to people under a partially

egalitarian distribution. Possession would confer the kind of qualified

entitlement that exists in a system under which taxes and other conditions

are arranged to preserve certain features of the distribution, while

permitting choice, use, and exchange of property compatible with it. What

someone holds under such a system will not be his property in the

unqualified sense of Nozick’s system of entitlement’.