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'.