Nozick`s Enlightenment 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’.