Reading Nozick Essays on Anarchy State and Utopia [1 ed.] 0847662799, 0847662802

Citation preview

|

i

ANDISOGIENY

es

$2 DAor-a

ST. NORBERT COLLEGE 320.101 R22p Reading

35109 0085 aias,

Reading Nozick DATE DUE

DEMCO

NO.

38-298

PHILOSOPHY

AND

SOCIETY

General Editor: MARSHALL

COHEN

Also in this series: Lukacs, Marx and the Sources of Critical Theory Andrew Feenberg The Reverse Discrimination Controversy

A Moral and Legal Analysis Robert K. Fullinwider

The Moral Foundations of Professional Ethics Alan H. Goldman Evolutionary Explanation in the Social Sciences An Emerging Paradigm

Philippe Van Parijs

Reading Nozick ESSAYS ON ANARCHY, STATE, AND

EDITED

WITH

UTOPIA

AN INTRODUCTION

Jeffrey Paul

ROWMAN & LITTLEFIELD Totowa, New Jersey

BY

Copyright © in this collection by Rowman and Littlefield, 1981 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, without the permission of the Publishers. First published in the United States 1981 by Rowman and Littlefield, 81 Adams Drive, Totowa, New Jersey 07512

Library of Congress Cataloging in Publication Data Main entry under title:

Reading Nozick. (Philosophy and society) Bibliography: p. 1. Nozick, Robert. Anarchy state, and Utopia— Addresses, essays, lectures. 2. State, The—Addresses, essays, lectures. 3. Civil rights—Addresses, essays, lectures. 4. Anarchism and anarchists—Addresses, essays, lectures. 5. Utopias —Addresses, essays, lectures. I. Paul, Jeffrey. II. Nozick, Robert. Anarchy, state, and Utopia. III. Series.

JC571.N683R4 198] ISBN 0-8476-6279-9

320.1'01

ISBN 0-8476-6280-2 (pbk.) Printed in the United States of America

81-12092 AACR2

For Ellie

Digitized by the Internet Archive in 2022 with funding from Kahle/Austin Foundation

https://archive.org/details/readingnozickessOO00unse

Contents Acknowledgments Introduction 1 PARTI.

ix

AN OVERVIEW

1 2

OF ANARCHY,

STATE, AND UTOPIA

Bernard Williams: The Minimal State 27 Peter Singer: The Right to be Rich or Poor 37

PART II

CONTRA ANARCHISM: MINIMAL STATE

JUSTIFYING THE

3

Robert L. Holmes: Nozick on Anarchism

4

Jeffrey Paul: The Withering of Nozick’s Minimal State 68

5

Robert Paul Wolff: Robert Nozick’s Derivation of the Minimal State 77

PART III

6 7 8

9

RIGHTS: OPPOSING THE EXTENSIVE

STATE

Thomas Scanlon: Nozick on Rights, Liberty, and Property 107 Judith Jarvis Thomson: Some Ruminations on Rights 130 Samuel Scheffler: Natural Rights, Equality, and the Minimal State 148 Eric Mack: Nozick on Unproductivity: The Unintended Consequences

10 11 12

57

169

Thomas Nagel: Libertarianism Without Foundations 191 Robert Nozick: On the Randian Argument 206 Douglas Den Uy! and Douglas Rasmussen: Nozick on the Randian Argument 232 vii

viti

Contents

13. 14.

Ellen Frankel Paul: The Time-Frame Theory of Governmental Legitimacy 270 Eric Mack: How to Derive Libertarian Rights 286

PART IV SOCIAL JUSTICE: ENTITLEMENT THEORY VERSUS DISTRIBUTIVISM

15 16 17 18 19 20

Onora O'Neill: Nozick’s Entitlements 305 Cheyney C. Ryan: Yours, Mine and Ours: Property Rights and Individual Liberty 323 Lawrence Davis: Nozick’s Entitlement Theory 344 David Lyons: The New Indian Claims and Original Rights to Land 355 Hillel Steiner: Justice and Entitlement 380 Israel M. Kirzner: Entrepreneurship, Entitlement, and Economic Justice 383

Selected Bibliography 412 Contributors 417

Acknowledgments While the responsibility for the selections and their treatment in the introduction are entirely my own, the advice of a number of people was exceedingly helpful in the preparation of this volume. I owe a special thanks to Robert Nozick whose wise counsel immeasurably improved this collection and without whose constant support it might’never have been assembled. Marshall Cohen, the general editor, made a number of incisive criticisms of the introduction and content which undoubtedly added to the quality of the collection. Finally I would like to express my gratitude to my publisher, Jim Feather, whose Job-like patience and encouragement saw the book through to completion.

I wish to acknowledge permission to use material contained in this volume as follows: 1. Bernard William’s ‘The Minimal State,’ Times Literary Supplement, January 17, 1975, is reprinted by permission of the Times Literary Supplement and Professor Williams. 2. Peter Singer's ‘The Right to be Rich or Poor,’ The New York Review of Books, March 6, 1975, is reprinted with permission from The New York Review of Books. Copyright © 1975 Nyrev, Inc. 3. Robert Holmes’s ‘Nozick on Anarchism,’ Political Theory, Vol. 5

No. 2 (May 1977), pp. 247-256, is reprinted by permission of the Publisher, Sage Publications, Inc. and Professor Holmes.

4. Jeffrey Paul’s ‘The Withering of Nozick’s Minimal State,’ Philosophy Research Archives, 1980, is reprinted by permission of the Philosophy Documentation Center, Bowling Green State University.

5. Robert Paul Wolff's ‘Robert Nozick’s Derivation of the Minimal ix

x

Acknowledgments

State,’ 19 Arizona Law Review 7 (1977), copyright © 1978 by the Arizona Board of Regents is reprinted by permission. 6. Thomas Scanlon’s ‘Nozick on Rights, Liberty, and Property,’ Philosophy & Public Affairs, 6, No. 1 (Fall 1976), copyright © 1976 by Princeton University Press is reprinted by permission of Princeton University Press.

7. Judith Jarvis Thomson’s ‘Some Ruminations on Rights,’ 19 Arizona Law Review 45 (1977), copyright © 1978 by the Arizona Board of Regents is reprinted by permission. 8. Samuel Scheffler’s “Natural Rights, Equality, and the Minimal State, Canadian Journal of Philosophy, March 1976, is reprinted by permission of the Canadian Journal of Philosophy and Professor Scheffler. 9. Eric Mack’s ‘Nozick on Unproductivity: The Unintended Consequences was originally prepared for this collection. 10. Thomas Nagel’s ‘Libertarianism Without Foundations, The Yale Law Journal, Vol. 85, pp. 136ff., is reprinted by permission of The Yale Law Journal Company and Fred B. Rothman & Company and Professor Nagel. 11. Robert Nozick’s ‘On the Randian Argument, The Personalist, Spring 1971, is reprinted by permission of The Personalist, University of Southern California and Professor Nozick. 12. Douglas Den Uyl’s and Douglas Rasmussen’s ‘Nozick on the Randian Argument,’ The Personalist, Spring 1978, is reprinted by permission of The Personalist, University of Southern California and Professors Den Uyl and Rasmussen. 13. Ellen Frankel Paul’s ‘The Time-Frame Theory of Governmental Legitimacy,’

The Personalist,

Vol. 60, No. 2 (April 1979), is re-

printed by permission of The Personalist, California.

University of Southern

14. Eric Mack's ‘How to Derive Libertarian Rights,’ is based on ‘How to Derive Ethical Egoism,’ The Personalist, Vol. 52. No. 4

(Autumn 1971) and ‘Egoism and Rights Revisited,’ The Personalist, Vol. 58, No. 3 (July 1977), and is included by permission of The

Personalist, University of Southern California. 15. Onora O'Neill's ‘Nozick’s Entitlements,’ Inquiry, Winter 1976,

pp. 468-481, is reprinted by permission of Universitetsforlaget, Oslo. 16. Cheyney C. Ryan’s ‘Yours, Mine, and Ours: Property Rights

Acknowledgments

xi

and Individual Liberty,’ Ethics, January 1977, pp. 126-141, is reprinted by permission of The University of Chicago Press and Professor Ryan. 17. Lawrence Davis's “Nozick’s Entitlement Theory, Journal of Philosophy (73,21) is reprinted by permission of The Journal of Philosophy and Professor Davis. 18. David Lyons’s ‘The New Indian Claims and Original Rights to Land,’ Social Theory and Practice, Vol. 4, No. 3 (Fall 1977), pp. 249-272, is reprinted by permission of Social Theory and Practice and Professor Lyons. 19. Hillel Steiner's ‘Justice and Entitlement, Ethics, January 1977, pp. 150-152, is reprinted by permission of The University of Chicago Press and Professor Steiner. 20. Israel Kirzner’s “Entrepreneurship, Entitlement, and Economic

Justice,

Eastern

Economic

Journal,

Vol.

4, No.

(January 1978), is reprinted by permission of the Eastern Economic

Association and Professor Kirzner.

1

A

SCY aa = ‘ia la Rama daily ePicenlait, OBR f id ae

bp ak Ra

“Ley!

wehact epee

2 ~

wWh,

rer

erie

st eles ‘walla Pe aeak

ie edit

fetta

:

de

th) eek Met

eta

=:

we

desis Peay aperyt V lyme?Ay se diaaeey

ee =

Ube

eek

cchinitidbaald edtr

r

7

chs

-

»

a eapeen ere: a viol

A

iv

ob tae Atlas! ‘ vanituenseeetts 2=

See

ee

SO ine

eer

aria wo Osi

beats hese 17,

]

~

— oy

i

é

oe [

om,

Ait U

PA

>

af

é 2

.~-

ae

= ~

~

= i

7

¢

-

tents

LU

.

Introduction THE IMPACT OF Anarchy, State, and Utopia To anyone familiar with the contents of Robert Nozick’s Anarchy, State, and Utopia its reception both in lay and professional circles could not have been more unexpected. In contrast to the moderate and conventional ideological stance of John Rawls’s A Theory of Justice, its distinguished predecessor in political philosophy, Nozick’s work announced a thesis so out ofjoint with its times that the critical acclaim accorded it by many of its reviewers must have astounded its author as much as it baffled its critics. That a treatise extolling the virtues of eighteenth-century individualism and nineteenth-century laissez-faire capitalism should not have elicited either hostility or silence, is both a puzzling and gratifying phenomenon; puzzling because its themes run counter to the Zeitgeist and gratifying because it is a work of considerable philosophical acuity. In Anarchy,

State, and Utopia,

Nozick revives

the claim long

associated with Locke and Spencer “that a minimal stated limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; and that the minimal

state is inspiring as well as right” (ix). In order to define the contours of the human rights which circumscribe the intrusive authority of the state, Nozick develops a conception of justice that he calls the entitlement theory. According to it, economic goods arise already encumbered with rightful claims to their ownership. Any social philosophy which argues that they emerge unaccompanied by such claims and can be distributed to society without transgressing any antecedent

moral boundaries,

is, according to Nozick,

therefore

mistaken. Yet, such distributivism (or redistributivism) has characterized the speculations of most twentieth-century political 1

y

Introduction

theorists. Moreover, much “objective” contemporary social science tacitly assumes some variant, usually utilitarian, of distributivism in both its scientific analyses of society and its prescriptions for social betterment. In rejecting distributivist notions of social and economic justice, Nozick has, then, defined a radically different normative paradigm—entitlement theory—within which philosophers, jurists, and social scientists may work in the future. This suggests that the significance of Nozick’s book is best appreciated when considered against the background of Thomas Kuhn’s model for theory development in the natural sciences. In his Structure of Scientific Revolutions, Kuhn suggested that current scientific knowledge may not represent the accumulated wisdom of the past but seems to embody the elucidation of a wholly new conceptual paradigm, one whose principal features are utterly incommensurable with its predecessors. If the development of moral knowledge is analogously structured, then the very incommensurability of Nozick’s theory with its competitors, accounts, in part, for its impact on social philosophy and science. It explains, too, why Anarchy, State, and Utopia was able to replicate the enthusiastic welcome accorded to Rawls’s work only three years earlier. For A Theory of Justice was written partly to restore the impaired foundations of the current ideological paradigm, distributivist liberalism —the theoretical support of the western welfare state and mixed economy; whereas,

Nozick’s book struck at the conceptual under-

pinnings of both contemporary western society and its totalitarian adversaries in the East. The resultant shift in social perspective has been both disturbing and illuminating to commentators. Again, the comparison with Rawls is instructive. The response to Nozick’s book echoed the response to Rawls’s in intensity (both were widely and thoroughly reviewed both in popular and technical journals), but in Nozick’s case there was striking alternation between scarcely qualified praise and passionate denunciation that was not characteristic of the reaction to Rawls. Thus, Hillel Steiner in Mind could write Although similar claims have become increasingly common, it would seem almost churlish not to acknowledge that this book is the best piece of sustained analytical argument in political philosophy to have appeared in a

Introduction

3

very long time. Moreover it is, in its way, an extremely moving book, not the Jeast because of the engaging manner in which it is written.)

While Brian Barry could inveigh in Political Theory, .. . the intellectual texture is of asort of cuteness that would be wearing in a graduate student and seems to me quite indecent in someone who, from the lofty heights of a professorial chair, is proposing to starve or humiliate ten percent or so of his fellow citizens (if he recognizes the word) by eliminating all transfer payments through the state, leaving the sick, the old, the disabled, the mothers with young children and no breadwinner, and so on, to the tender mercies of private charity, given at the whim and pleasure of the donors and on any terms they choose to impose.?

The varied responses to the Nozick book in contrast to its predecessor, largely reflect the chasm which separates their respective visions of the good society. THE

PURPOSE

OF THIS

COLLECTION

While Anarchy, State, and Utopia’s ideological stance may well account for the mixed critical reaction to it, the intensity and analytic sharpness with which it has been examined are principally due to the uniqueness ofits point of view. Again, in Kuhnian terms, it has introduced a new paradigm into political discussion. As Nozick has been eager to point out, only his theory among its competitors in the philosophy of distributive justice refuses to supply social goals for economic allocation, substituting for them procedural criteria for the proper acquisition of income and wealth. Such an “historical” basis for unqualified rights of property stands in stark contrast to the familiar distributive formulae of social philosophy which confer upon their recipients only limited discretion over their property. Instead of rules of allocation which identify some human characteristic or propensity in accordance with which income and wealth are to be distributed

(to each

according

to his need,

...

merit,

contribution) Nozick merely specifies those activities of appropriation and transfer which confer property rights on people without reference to the relative condition or standing of their fellows. In opposition to those distributivist theoreticians who seem to view all

Introduction

4

wealth as appropriately subject to the state’s allocative mechanisms, Nozick argues that wealth is created with moral encumbrances which entitle its owners to absolute control over it irrespective of the social ramifications of such a distribution. In Anarchy, State, and Utopia, Nozick provides an argument for his admittedly deviant views which has by now been subject to the most meticulous scrutiny. This collection is an attempt to summarize the current state of the discussion by selecting from this outpouring pieces which exemplify the central critical tendencies of his fellow social theorists. Now is probably the most appropriate occasion for doing so since the debates stimulated by the book have begun to shift away from the particular arguments devised by Nozick to defend his own unique vision of libertarianism to the question of whether any plausible demonstration can be supplied for this recent successor of Lockean liberalism. Since the publication of Anarchy, State, and Utopia, there has been no shortage of alternative “libertarianisms”

devised to correct perceived shortcomings in Nozick’s version. Recent additions to the libertarian corpus include Hillel Steiner's Georgist variant of libertarianism erected upon Kantian foundations? and Tibor Machan’s Aristotelian-Randian scheme of laissezfaire political economy.* THE

ANTECEDENTS

OF NOZICK'S LIBERTARIANISM

While Anarchy, State, and Utopia stands on its own as a work of political philosophy it cannot be divorced from the tradition of which it is so obviously a part. Nozick is a twentieth-century successor to the great classical liberals of the seventeenth century—Locke, Grotius, and Pufendorf. His strain of liberalism however has been filtered through the radically individualist social philosophies of Bastiat, Spencer, Tucker, and Spooner. Moreover, his immediate predecessors in libertarian social philosophy established the theoretical agenda for Nozick’s own work. The American economist Murray Rothbard, for example, has in the twentieth century revived Benjamin Tucker's and Lysander Spooner’s arguments for individualist anarchism. This American triumvirate is Nozick’s invisible collective antagonist as he strives in the first part of Anarchy, State, and Utopia to establish the propriety of the

Introduction

5

minimal state and its desirability over its anarchist competitors. And standing behind the entire work as the gray eminences of twentieth-century libertarianism are the Austrian economists von Mises and Hayek, and the Russian-American novelist Ayn Rand. In a sense Nozick’s book is far less ambitious than the work of his libertarian predecessors, surprisingly so for a book that has been so widely read and acclaimed. Its design is less encompassing than that of Herbert Spencer's Social Statics or F. A. Hayek’s Constitution of Liberty, for example. But Nozick’s intention for the work was to carve out a place for a theory of distributive justice that would be the antithesis of the prevailing views on that subject. Merely to obtain credibility for an historical theory of distribution would more than justify the work in his view. Therefore, he was untroubled by the fact that in the book he merely attempted to make plausible the entitlement theory of distributive justice without providing a detailed moral foundation for it. He was content to criticize opposing positions and merely to explicate his own view, leaving the grander project of providing a positive grounding for it to a later time. The product of that modest ambition is the subject of the essays that comprise this volume.

AN OVERVIEW OF Anarchy, State, and Utopia Part One of this collection contains two useful surveys of Anarchy, State, and Utopia which supply incisive criticism of its central claims. Bernard Williams assails Nozick for his wholly formal definition of rights. It is impossible, Williams argues, to tell when a moral boundary has been crossed if rights are not supplied with normative content. Williams quarrels, as well, with the plausibility of Nozick’s hypothetical narrative which depicts the development of the minimal state. It represents, according to Williams, a bizarre departure from any common sense account. Finally, he makes the point that Nozick’s view of distributive justice relies on moral intuitions rather than on argument and that competing intuitions can always be found with as great a claim upon our moral sensibilities as those propounded by Nozick. Peter Singer,

in contrast,

finds little to dispute in the book's

internal argument but complains that its antiredistributivist conclusions are morally disreputable. In order to. oppose these, Singer

6

Introduction

recommends a reconsideration of utilitarianism, a position which he

believes Nozick has slighted in his book. JUSTIFYING

THE

MINIMAL

STATE

AGAINST

THE

ANARCHISTS

These surveys are followed by a second part devoted to an examination of Nozick’s claim that, anarchist arguments to the contrary, the minimal state is justified. In the first third of his book, Nozick attempts to deflect the claim of individualist anarchists that if rights to life, liberty, and property are absolute, the very existence of the state necessarily infringes them. The monopoly of adjudicative and police powers assumed by any government is maintained by restricting the abilities of citizens to purchase security from private sources. Moreover, the taxes collected to afford such protection are obtained by an invasion of property rights. Hence, argue the anarchists, the state must violate the very right of property that it is instituted to protect. The acceptance of the libertarian scheme of rights, then, requires the rejection of government as their appropriate institutional safeguard. In reply Nozick argues that if we consider a hypothetical state of nature we can trace a possible scenario in which from a number of protection agencies one emerges which dominates the rest and does so without violating any of the aforementioned rights. Three essays contest Nozick’s argument that a minimal state can arise from the state of nature without involving itself in transgressions of people's rights. Robert Holmes rejects this argument, pointing out that Nozick adduces no independent epistemic criteria on the basis of which the enforcement procedures of the dominant protection agency can be assessed. In the absence of such criteria, the dominant protection agency's usurpation of all powers of adjudication and enforcement cannot be justified. For unless its procedures are morally superior to those of its competitors and can

be shown to be so, their forcible elimination is ethically suspect. Hence, it cannot justifiably assume the position of minimal state. Furthermore, Holmes collapses Nozick’s distinction between the having and exercising of rights, which forms the basis of Nozick’s contention that even if violations of the latter are required for the

Introduction

ft

assumption of state power by the dominant protection agency such infractions do not deprive persons of the former. Having dismissed the basis of this distinction, Holmes accuses Nozick of having sanctioned the violation of human rights in his attempt to devise a cognitively tenable foundation for the emergence of the state. In my own paper, which follows Holmes’s, I delineate the infinitely regressive character of the “procedural rights” deployed by Nozick in his defense of the dominant protection agency's acquisition of state-like power. If such rights exist, Nozick argues, a scrupulous defense of them by a protection agency would morally justify its accumulation of statelike powers. My reply is that there are logical grounds for concluding that the existence of such second-order rights is evanescent. Robert Paul Wolff focuses his criticism on Nozick’s use of the notion of a compensated boundary crossing as the foundation of his favorable analysis of the evolution of aminimal state. Nozick argues that the riskiness,of the activities of independent protection agencies may morally justify the prohibition of these activities as long as the clients of the independent agencies are suitably compensated for their sudden exposure to attack. Wolff questions the measurability of compensable harms in Nozick’s state of nature, given its fluidity and lack of structure. For, if the uncertainty which prevails there unduly circumscribes the possibility of rational calculation, the compensation owed to the newly vulnerable clientele of independent protection agencies can never be accurately calculated. Hence, a dominant protection agency, Wolff argues, cannot be arithmetically certain of the moral grounds of its ascension to state-like dimensions. Eric Mack challenges the very propriety of Nozick’s introduction of the compensation principle on the grounds of its inconsistency with the general framework of deontic rights defened in Anarchy, State, and Utopia. In his “Nozick on Unproductivity: The Unintended Consequences, Mack identifies the compensation principle with an incipient utilitarianism which if generalized would erode Nozick’s libertarianism by condoning rights violations in circumstances where the subject’s wellbeing is enhanced. Should Nozick realize his error and abandon the compensation principle he would, according to Mack, seriously, if not fatally, jeopardize the

8

Introduction

whole anti-anarchist project of Part I. Without the compensation principle Nozick’s minimal state may be transformed into the welfare state—a Nozickian nightmare. While the preceding critiques, if successful, would imply a failure on Nozick’s part to supply a Lockean justification for the evolution of the

minimal

state,

Ellen

Frankel

Paul

develops

an

alternative

defense of that institution from a classical liberal perspective. Paul argues that Nozick’s historical analysis of the state’s emergence is a superfluous exercise in political casuistry. It is not the moral history of an agencys ascension to power which reveals the legitimacy of its current status; rather it is the moral character ofits present activities by which its legitimacy should be assessed. Any state, says Paul, that is presently a protector and not a violator of Lockean rights has thereby justified its existence in the current “time-frame,” whatever previous moral indiscretions it has committed. Paul, therefore, rejects the historically-oriented methodology used by Nozick to evaluate the rectitude of hypothetically emergent states. RIGHTS:

OPPOSING

THE

EXTENSIVE

STATE

Part Three of this collection contains papers which critically analyze the structure and content of the rights defended by Nozick in Anarchy, State and Utopia. This aspect of the book is in a number of respects the most controversial.

In the first place, the

rights ascribed by Nozick to persons are by his own admission not derived from some more primitive moral or factual foundation. He vaguely alludes to and opaquely describes a possible Kantian basis for rights (30-34) from which he infers that their logical genesis must be deontic, not teleological in character. The content of these rights consists in titles to objects, which titles confer exclusive authority

upon their bearers over the uses to which they are put. Again, the precise processes by which the bearers rightfully obtain this authority is left undescribed. Nozick merely stipulates that they be historical

in character,

in keeping,

we

may

surmise,

with

the

anti-teleological program on which he has embarked. He does, however, s .ecifically delineate certain constraints upon the primitive acquisition of such titles which he incorporates into a “LockeanProviso” named after its famous ancestor from the Second Treatise of Civil Government. Thus, the nature of the system of rights

Introduction

9

propounded in Anarchy, State, and Utopia is merely adumbrated and no logical demonstration of their existence is produced. These omissions have generated consternation among Nozick’s critics, as well as speculation as to what (and, indeed, whether!) content and foundation might be plausibly conjoined to the conception of rights which he espouses. In addition to the ambiguity of their content and the absence of any detailed defense of their existence, Nozick’s rights have elicited criticism on other grounds. Their recognition, it seems, would preclude the kinds of economic and social arrangements closely associated with the contemporary welfare state. Any compulsory transfer of income or wealth, initiated on other than compensatory grounds, constitutes a transgression of the rights Nozick defends. A state whose functions include such transgressions has thereby forfeited its legitimacy. Redistribution and paternalism in its recent liberal manifestations are from his perspective to be condemned along with the obviously odious excesses of totalitarian states. The precise implications of the Nozickian scheme of entitlements for the distribution of economic goods is the subject of the last part of this collection. Part Three confines its discussion to the character and source of the rights which underpin the distributive imperatives of libertarianism. In his essay, Thomas Scanlon conjectures about the nature and extent of the natural property rights that are logically entwined with the imperative of personal inviolability which Nozick treats as normatively axiomatic. Scanlon believes that a far narrower conception of such rights is implied by this moral axiom than Nozick realizes and, therefore, the extent of unregulated economic activity implied by it must be vastly attenuated. Moreover, because personal autonomy cannot simply be explicated in terms of the property rights defended by Nozick, Scanlon raises the possibility ofa teleologically grounded system of rights whose character would be determined by their contribution to such autonomy. Like Scanlon, Judith Jarvis Thomson is skeptical about the possibility of defending the absolutely inviolable character of Nozickian property rights. This skepticism derives from a number of examples in which our intuitions incline us toward the view that the property rights in question may be overridden by other considerations. Thomson then asks what is it, at the margin, which sustains the moral

10

Introduction

invincibility of a property claim and conversely, what is it that justifies the infringement of a property right when we are morally persuaded to ignore it? Property claims are to be sustained, she argues, when, in addition to having acquired title to an object in suitable ways, we value that object highly. Such claims may be overridden when a life will be lost in the absence of an infringement of rights. This demonstrates, Thomson argues, that rights are derivable from human interests and needs and this in turn suggests that the constraints

that rights impose

upon

redistribution

are not as

inflexible as Nozick’s deontological conception of them leads him to believe. With Scanlon, Thomson is attracted to a teleological justification for property rights which would diminish their moral insusceptibility to redistributionist activity. Unlike Scanlon and Thomson, Scheffler argues that the rights deducible from Nozick’s fundamental moral intuitions are not merely more narrow in scope and content than those defended in Anarchy, State, and Utopia but differ radically from the portrait of them drawn there. Isolating what Nozick characterizes as their source, Scheffler is able to show that the nature of the rights emanating from it in fact conflicts with the entitlement view of them. Nozick conjectures that the feature of human nature from which absolute rights against redistributionist interference may be plausibly derived is the capacity of persons to suffuse their lives with meaning by organizing their activities so as to accord with some overall purpose (50-51). This feature, when combined with the fact of the separateness of human lives, implies for Nozick the sort of impenetrable moral barriers to redistribution and liberty which he calls side constraints. To seize A’s property in order to transfer it to B involves for Nozick the sacrifice of A’s opportunity to impart meaning to his existence to B’s. But this is either to assign a priority to their interests which flouts the hypothesis of their separate and equivalent human potential for a meaningful existence, or it is to combine their interests in a utilitarian calculus which assumes that they share a center of cognitive response, an assumption antithetical to the ontological distinctness of human. personalities. Scheffler rejects these political inferences drawn by Nozick from the intrinsic value of leading a meaningful life. For Scheffler, if there is such value then the rights which it sanctions are qualita-

Introduction

1l

tively different from Nozickian ones. Scheffler argues that if a meaningful life has moral value then the capacities required to nurture them are valuable as well. These capacities cannot be employed unless the material conditions necessary to their support are met. The provision of those conditions includes that quantity of distributable goods necessary to ensure a reasonable chance to all of leading a meaningful life. Hence, the centerpiece of Nozick’s axiology leads to the very welfare rights which he set out to oppose, according to Scheffler. In his essay, “ Nozick on Unproductivity: The Unintended Consequences,” Eric Mack draws a still more startling conclusion. He argues that the deontically fixed moral boundaries delineated in Nozick’s theory of rights are systematically undercut by him through the introduction of the utilitarian criteria for compensation that he employs to support his rejection of anarchism in Part I of Anarchy, State, and Utopia. If Mack is right, then Nozick has eviscerated his

own libertarian-entitlement theory of rights in ways that would delight many of his critics but are clearly unintended. Given Mack's interpretation, the damage allegedly inflicted by Scanlon, Thomson, and Scheffler on Nozick’s libertarianism pales in comparison with the devastation visited by Nozick upon his own work. Moreover, the attempts by Scanlon, Thomson, and Scheffler to soften the supposed rigidity of Nozick’s libertarianism would be superfluous from Mack’s perspective, for Nozick’s adoption of a utility rule undermines his libertarian principle. Mack argues that contrary to what we are led to expect from Nozick’s depiction of rights as morally inpenetrable boundaries, Nozick argues that such boundaries may be transgressed if it is possible to compensate the victims of those transgressions adequately. Rights violations, then, are only to be prohibited when compensation is not a feasible alternative, and compensation is not a

viable response to most boundary crossings. Hence, the majority of border crossings are to be prohibited. However, some border crossings are permissible if they are done to prevent the success of activities which seem likely to result in rights violations. Nozick argues that many such “risky” actions fall into a category of activity

which may be prohibited because it neither benefits the buyer nor is independently useful to the seller. Such “unproductive” activity may be prevented even though it has not presently resulted in any

12

Introduction

rights violations. Mack discerns, however, that unproductive activ-

ity as defined by Nozick includes several categories of action which can never produce nor constitute rights violations but are, nevertheless, subject to prohibition on Nozickian grounds. Boycotts, refusal to sell a natural resource to someone who desires

it, and the inheritance of certain types of wealth all may be prohibited on the grounds of their unproductivity, Mack concludes. Yet each of these prohibitions would constitute an unmistakable violation of Nozickian rights. They are permitted, however, according to Nozick’s unproductivity doctrine, provided suitable compensation (the criteria of suitability here are several) is paid to those who are prevented from exercising their rights because of them. The extent of that compensation is to be fixed by certain utilitarian criteria. Rights as deontic imperatives, then, are to be replaced with rights whose moral boundaries can shift depending upon how the well-being of the affected parties is altered. As Mack concludes: On the resulting outcome conception of rights, a boundary specifies a level of well-being and the permissibility of others’ actions depends upon the effect of those actions upon the subject's well-being. Even if what is forcibly required of the subject is a productive and beneficial activity, no wrongful boundary crossing will take place as long as the level of the subject's well-being is fittingly raised. This shift to an outcome oriented conception of rights should make it difficult for Nozick to sustain his anti-paternalism. For the subject will have no complaint in terms of his rights if the intervention does actually maintain or appropriately raise his level of well-being. In contrast,

on

the

more

consistently

deontic

conception,

a boundary

is a

frontier which others do wrong to cross and accompanying benefits do not right such wrongs (p. 187).

According to Mack, Nozick has transgressed the very conception of inviolability which it is the point of his view to establish. He does this by adding to his exclusively historical criteria for exercisable rights the sort of teleological ones which he elsewhere repudiates. This concession to “teleologism” may well constitute for Nozick the first step down a slippery slope toward the abyss of patterned theories of distributive justice. The distributivism which Anarchy, State, and Utopia seeks to discredit as a valid notion of economic justice is reinstated by the very work whose major theme is its

Introduction

Hs

inadequacy. Mack seems to have uncovered a serious if not fatal flaw in Nozick’s libertarianism, tinged as it is by the self-defeating adoption of two apparently antithetical distributive standards, one historical, the other teleological. The former gives rise to immutable entitlements, while the latter confers a protean character on them. Nozick’s intransigent libertarianism has, according to Mack, been

seriously compromised. Thomas Nagel compounds this criticism by pointing to the exiguous foundation provided by Nozick for even the uncompromised remnant of his libertarianism. Nagel insists that the scant foundational remarks made by Nozick are an insufficient defense of the absolute right to one’s historical entitlements. For example Nozick argues that the ontological distinctness of persons implies that the good of one cannot be justifiably advanced by imposing costs on another because the latter acquires no benefit from any larger social good in which he can be alleged to participate. Nagel responds that even in the absence of such a combined good it is evident that the improvement of the condition of a larger number of people is always to be preferred to that of asmaller number. The existence of some social whole need not be assumed in order to affirm such comparative moral advantages. Moreover, Nagel argues, the desirability of living a meaningful life cannot by itself imply as Nozick suggests it does, an absolute right against interference by others. For the effect of such non-interference upon those others who must, according to Nozick, forbear from intrusive activity has to be weighed against the interests of persons whose alleged rights are transgressed. Given the paucity of argumentation for Nozick’s conception of rights and the counter-intuitive claims embodied in what little argument is presented in Anarchy, State, and Utopia Nagel is disposed to reject what he calls a “Libertarianism Without Foundations.” Nagel is, of course right, in indicting Anarchy, State, and Utopia for not being the last word on libertarianism, but he is not being entirely fair in doing so. The book’s significance lies in its power as a serious work of recent libertarian thought by a professional philsopher. Nozick’s explicit objectives for the book obviously fall short of providing the sort of “knock-down” argumentation for his position that we expect of the paradigmatic philosophical work. What he hopes to do is to lend plausibility to his libertarianism by deflating a variety of alternative positions, thereby leaving the field open to a

14

Introduction

possible successor. By subsuming all opposing theories of distributive justice under either or both of two categories (patterned or end-state) and attacking these two in a way which he hopes will divest them of all credibility, Nozick aspires to elevate natural rights libertarianism to serious contention among competing political philosophies. This aspiration is not ambitious enough to satisfy Nagel who consequently impugns the book for its neglect of foundational questions. While Nozick has little to say in response to such questions in Anarchy, State, and Utopia, he certainly recognizes their ultimate significance for the credibility of his views and he has not been unconcerned with them in past philosophical work. During the late 1960s and early 1970s his interest in natural rights libertarianism led him to test the validity of a purported demonstration of that position put forth by the novelist, Ayn Rand. Nozick’s examination of it is interesting in two respects. First, he seems to feel that if Rand's putative derivation of what she takes to be the ethical basis of libertarianism is sound, then it would be a trivial task to deduce from it classical liberalism’s panoply of rights. “Since I share the view that such a moral foundation [Rand’s] is appropriate and possible and that laissez-faire capitalism is morally justifiable on such a basis, I wish to look closely at an actual attempt” (p. 206). Second, in criticizing Rand’s moral philosophy Nozick implicitly identifies the differences between himself and other libertarian political philosophers (e.g., John Hospers, Tibor Machan, Eric Mack, Douglas Den Uyl, and Douglas Rasmussen) whose views are more or less informed by Rand’s ethical stance. While Nozick makes little positive contribution to the exploration of the foundational questions of libertarian theory some political allies of his have undertaken to remedy that deficiency through an explication of the structure and substance of Rand’s moral epistemology. Both Nozick’s attack and their defense of the “Randian argument” comprise most of the remaining essays in this section.

Rand has argued that one can derive from factual premises the normative conclusion that people ought to act in conformity with the following injunction: “do that which is required for man’s survival as a rational being.” To survive as a rational being, she argues, requires the practice of certain virtues which in turn necessitates the creation of a social fabric in which such practices are permitted. That social

Introduction

tS

fabric is reducible to an array of rights defined as the entitlement of human beings to their persons and duly acquired property—the libertarian rights so enthusiastically defended by Nozick. In his paper, “On the Randian Argument,” Nozick reformulates Rand's putative demonstration, putting it into deductive form in order to assess its validity. Her argument, Nozick alleges, can be understood in one of two senses. Either she is maintaining that human survival is a value because it is a necessary condition of the realization of any values whatever, or she is calling it a value because without it the very notion of value becomes unintelligible. Against the first interprétation Nozick raises two objections. First, there are a large number of conditions necessary to the realization of values, yet Rand

selects

one,

human

survival,

as having

overriding

moral

significance. Why? Second, in order to establish the moral value of that which is instrumental to the realization of values Rand would first have to show that realizing values is itself valuable. Yet she fails to do so. The second interpretation of Rand’s derivation, that life is valuable, is dismissed by Nozick as well, since the very concept of

value is unintelligible when severed from it. Value can be explained just as meaningfully in terms of its relationship to “death” or “the greatest happiness of the greatest number of people” or any of a large number of possible concepts. The synthetic a priori connection alleged to exist between “life” and “value” by Rand is in Nozick’s opinion illusory. Now if Rand is unable to establish the moral foundation of the rights that she ascribes to human beings, the argument purporting to deduce those rights from that basis is interesting but not conclusive. Two of her followers have attempted to save that foundation from the damage done to it by the force of Nozick’s criticism. Douglas Den Uyl and Douglas Rasmussen contend that Nozick has at least partially misconstrued Rand and so his case against her rests upon a “straw man” argument. They further insist that to the extent that he accurately rehearses her argument, his criticisms of it

are wide of the mark. Den Uyl and Rasmussen’s reconstruction of Rand’s argument purports to show that the process of human valuation and the condition of mortal existence are inextricably linked so that any axiological scheme which repudiates the latter as an ultimate criterion for normative judgments is internally inconsistent. Any coherent system of value, they argue, must be ordered in

16

Introduction

terms of the contribution made by its elements to human survival. They maintain, in addition, that the unique character of human life implies a certain mode

of conduct,

i.e., rational and productive

conduct, as the only one appropriate for human survival. Such conduct can achieve success only where life, liberty, and property are preserved as its necessary preconditions. This reconstruction of Rand's argument bears a striking similarity to Ellen Frankel Paul's elaborated and improved version of Herbert Spencer's defense of “Lockean” rights in his essay “The Great Political Superstition.” Her essay which has as its principal focus the replacement of what she believes to be Nozick’s unsuccessful repudiation of anarchism with a more convincing successor, concludes by resurrecting and repairing Spencer's deduction of libertarian rights. Paul begins by criticising Spencer for failing to anchor his derivation in some categorical normative principle prescribing the value of life. Instead, she says, he argues only that if life is a good then that which tends to its preservation is good as well. But this means that the rights which he alleges are instrumental to human survival are of conditional, not categorical, value. If such rights are the invariant features of the moral landscape that libertarian theory supposes them to be, their value cannot fluctuate with our changing attitudes about the desirability of life. Paul, then, offers an argument similar to that of Den Uyl and Rasmussen which purports to make clear the ineluctable relation between valuational processes and mortal existence, a relation which, it is maintained, makes of human survival a

summum bonum. Paul goes on to explicate the subsequent steps in a demonstration of the libertarian position on social rights. Like Spencer she contends that persons in close proximity to one another need guarantees of non-interference with life-sustaining activities. The human ability to grasp conceptually the necessity of such sanctions implies that they are moral imperatives for those of normal human intellect but do not apply to the conduct of those non-human creatures incapable of grasping them. The final piece in this section departs from the kind of transcendental argument for life’s goodness invoked by Randians, Den Uyl and Rasmussen or the Spencerian, Paul. Eric Mack’s “How to Derive Libertarian Rights” purports to be an interpretation of Rand, but differs significantly from the version given by the two authors of

“Nozick

on

the Randian

Argument.”

For

Mack,

Rand’s

ethical

Introduction

1G

theory has a Thomistic dimension which is not captured by the Den Uyl-Rasmussen exposition of it. Mack’s version of Rand purports to show that the valuational process has a natural function for human beings to which it ought to conform if it is to function well. Its function,

according to Mack,

is to further the existence

of the

valuing human being. Since, he argues, “valuation functioning well” is analyzed definitionally as “that which is good,” the “good” turns out to be that which contributes to the survival of the valuing agent. It is this “good” which serves as the basis for the libertarian rights derived by Mack in the first part of his essay. Rights for Mack are the interpersonal obligations required for agents to strive to further their separate lives. Their obligatory character derives from the pragmatic contradiction involved in any act that transgresses them; for any rights-violating act is, for Mack, a statement which contradicts that which is apodictically true—that the natural function of human valuation and action is the promotion of human survival. The combined efforts of Mack and his cohorts attest to the fact that the neglect endured by libertarian theory on foundational questions at Nozick’s hands is not mirrored in the work of his philosophical compatriots. In fact, libertarian theory would appear to be without ethical support in Anarchy, State, and Utopia only. Elsewhere it seems to have produced a wide variety of foundational proposals. NOZICK’S HISTORICAL

ENTITLEMENT

DISTRIBUTIVE

THEORY

OF

JUSTICE

In the last part of this collection the problem of how a just distribution of goods is to be realized according to the theory of historical entitlements is investigated. According to this theory individuals obtain absolute control over objects through historical processes. This means that they may retain or transfer the ownership of them only at their own discretion. All compulsory transferences, therefore, constitute an infringement of rights. Similarly, any coercive regulation of the uses of owned objects infringes the right of the owner. That the “redistribution” of owned objects must result only with and from the consensual agreements of their owners is, then,

an unambiguous implication of Nozick’s theory of distributive justice. Apparently the initial act of appropriation confers unlimited

18

Introduction

rights of use and disposition upon the acquirer, rights which are conveyed by voluntary transfer to the subsequent owner of the originally acquired objects. But what sort of principle governs the appropriation of resources so that it confers such full “capitalist” rights of ownership upon its adherents, rights which will accompany all subsequent changes in ownership? On questions of distribution generally Nozick is an advocate of what he calls the historical principle of justice. As applied to original acquisition, this principle specifies that initial entitlements should arise from the past actions of persons rather than from some distributive formula. The latter “end-result” type of principle can never be made compatible with the moral requirement of personal autonomy according to Nozick. For it will always require coercive measures in order to enforce adherence

to it. But, while some

historical method

is the moral

superior of any teleological method of initial acquisition Nozick has difficulty in specifying precisely which of several possible methods is to be preferred. Is it through labor, first occupancy, possession, declaration or some other historical means that one appropriately secures initial ownership of virginal resources? Nozick is ambivalent on this issue although he seems at times to suggest that Locke’s labor theory of original property acquisition might be acceptable, if it is suitably qualified (174-78). The qualification that he selects is the previously cited Lockean Proviso. Its original formulation by Locke requires that a limit be placed upon the amount of a resource that can be extracted from nature by anyone. That is, it insists that “enough and as good” be left for others to secure. Nozick recasts this constraint into an injunction against those acquisitions which depress the condition of others below a certain welfare baseline by depriving them of the use of resources to which they previously had access. The original source of Nozick’s entitlements, its justification, and its appropriate limitations are the central themes of the essays in this part. These issues are not insignificant, for if the theory of distributive justice propounded by Nozick is correct, only a laissez-faire economic order would satisfy its normative requirements. We would then be morally committed to a radical revision of the type of economic arrangements to which western society has aspired in this century.

In her essay, Onora O'Neill addresses the problem of whether

Introduction

19

Nozick has successfully justified the historical entitlement view of economic distribution. She aptly recognizes that Nozick provides little in the way of a positive foundation for his view, preferring instead to attack opposing theses. This strategy—aimed at leaving the historical entitlement principle the only unvanquished competitor in a field comprised of all possible theories of distributive justice—has, in O'Neill's opinion, failed. Its failure, she maintains,

is due to the circuitous character of the argument deployed by Nozick against alternative conceptions of the distributive ideal. Nozick argues that such alternatives are universally self-refuting. The alternative models attempt to realize either a particular distributive structure (e.g., equality) or a formula which assigns quantities (or to use Nozick’s term “patterns’) of economic goods to particular individuals based upon some characteristic possessed by them

(e.g., good looks, merit,

need). If goods are distributed to

accord with some example of either of these principles the distribution realized, D1, will in all likelihood shortly be supplanted by another, D2, by virtue of the voluntary economic transactions that

people will engage in subsequent to D1. Any reversion to D1 will require an imposed reversal of the decisions made by individuals pursuant to the initial distribution. This means that on the one hand persons were given quantities of goods for their use under formula D1; on the other hand they are not permitted to employ these goods as they choose, except when by their choice the distributive status quo, D1, is maintained. To Nozick this allegedly paradoxical result inevitably afflicts all patterned or end-result rules of distribution. O'Neill, along with Thomas Nagel and Cheyney Ryan, has criticized Nozick’s argument against “end-result” and “patterned” principles of justice for its putative question-begging character. All of them assert that it assumes that the recipients of goods under Di are thereby accorded absolute rights of use and disposition. But it is precisely such rights that have yet to be established. Nor can it be argued that the liberties of the recipients are infringed by the continuous reimposition of some distributive pattern, because, ex hypothesi, their freedom to rescind the desired pattern of distribution, D1, is a freedom implicitly forbidden by D1. As Nozick has presented no positive argument in support of the freedom to flout such

distributive

inhibiting it.

formulae,

he cannot

reject distributionism

for

20

Introduction

Can the full-blown property rights embraced by Nozick be persuasively defended? O'Neill and Ryan investigate this possibility and conclude that they cannot. O'Neill produces a reconstruction of Locke’s justification of his labor theory of property acquisition (in the absence of any such argument by Nozick) only to conlude that it fails. Ryan, in his essay “Yours, Mine, and Ours,” contends that Nozick’s principal argument against distributionist theories of justice rests upon their purported failure to cohere with the ideal of individual

liberty.

This criticism,

Ryan points out,

derives

from

Nozick’s particular conception of human freedom which identifies it with the rightful capacity to control property. But this is merely to assume the propriety of that which must be demonstrated. Furthermore, it can be plausibly contended, according to Ryan, that private property inhibits freedom rather than expands it. The transition from common ground to enclosed ground in England rendered large tracts of land inaccessible to those who formerly had the free use of it. Indeed, Ryan argues against Nozick that the right to acquire personal property from nature is a source of increasingly

constricted autonomy. While Ryan and O'Neill complain that unconstrained rights of property use and disposition are not positively justified in Anarchy, State, and Utopia, Lawrence Davis and David Lyons insist that Nozick introduces restrictions upon the applicability of the historical method of property acquisition which contravene the doctrine of a pure entitlement to property. If they are correct in their assessment then we would be forced to conclude that Nozick has not merely failed to provide a justification for historical entitlement, but that a more diluted version of this principle is actually espoused by him than has been generally supposed. The robust species of historical entitlement doctrine that has been popularly attributed to Nozick enables individuals to become the uncontested owners of previously unowned objects through the proper employment of certain procedures. Those procedures “entitle” their employers to the unlimited use of the formerly unowned objects to which they have been applied. Such procedures are invariant with respect to the rights that they confer—they do not

fluctuate to accommodate human needs or conventions. And the rights that they confer are to the particular objects to which they have been applied.

Introduction

oT

Davis points out in his piece that such a doctrine, if strictly adhered to, would have unwelcome consequences for the principle of rectification of injustice that it must invoke. For, if our entitlements are to particular objects, the destruction of those objects precludes the restoration of the transgressed rights of their owners. But this is an unconscionable result for entitlement theory, leaving it with no remedy for this type of rights infringement. Davis suggests that Nozick has included in the first part of his work a doctrine which can extricate the entitlement thesis from this dilemma but only at the expense of the purity of the doctrine. Davis points out that in this first section of the work Nozick argues that individuals can be compensated for a violated right by raising them to a level of indifference between their pre-violation and postviolation condition. This implies that it is their psyches which must be appeased and that the goods facilitating that appeasement do not necessarily have to be the ones forcibly seized, damaged, or destroyed by the violator. Even if the removed entitlements no longer exist the victim can be “compensated” and the injustice done to him rectified by inducing in him a requisite level of satisfaction through the return to him of “equivalent” goods. This obviously shifts the basis of Nozick’s social philosophy away from an entitlement thesis and toward a doctrine resting upon a utility criterion. Davis's insight in this regard is reminiscent of Eric Mack’s. David Lyons makes the point that one does not have to look as far as Nozick’s rectification theory to discover a dilution of the historical entitlement thesis. Lyons argues that the thesis is initially weakened by Nozick’s adoption of his Lockean Proviso as a constraint upon the unlimited extraction of resources from nature. This proviso defines a welfare baseline below which no one can be permitted to fall due to the acquisition of the entire supply of a resource. Lyons maintains that the proviso makes property acquisition subordinate to human welfare and thereby divests it of the character of a right. Lyons’s interpretation of Nozick transforms his social theory into the sort of teleological distributivism that his book repeatedly denigrates. Hillel Steiner has drawn a more radical inference still concerning Nozick’s view of historical entitlements. He contends that—since the process of property acquisition creates nothing new but rather involves the extraction of pre-existent resources from nature— differential entitlements to virginal resources ought to be proscribed

wy,

Introduction

by the Nozickian. Moreover, the equal right to liberty to which Nozick apparently subscribes should commit him to an initial equal distribution of natural resources. Such an egalitarian constraint upon original acquisition (not explicitly proposed by Steiner in this essay but described by him elsewhere®) is surely the most radical inference that can be drawn from Nozick’s framework, substituting,

as is does, an “end-state” principle of appropriation for the “historical” Lockean one vigorously propounded in Anarchy, State, and Utopia.

Steiner inference, however, is implicitly rejected by Israel Kirzner who contends extraordinarily that most resources are created ex nihilo by their appropriators. He argues that most resource acquisition actually involves the discovery of either the resource itself or of a hitherto unrecognized’ economic use for it. Ina sense,

then, all acquisitions involving such discoveries bring into

existence economic goods and values ex nihilo. If we accept the ethical principle that the creator of something ought to acquire exclusive title to it, Nozick’s historical theory of initial appropriation is rescued from those who would attack it from Steiner's vantage point. Moreover, Kirzner argues, this theory of the ethical basis of historical entitlement removes the need for Nozick’s Lockean Proviso. For, if virtually all primitive acquisition is not the mere extraction of previously existing objects from nature but involves rather the production of new objects ex nihilo no one can claim to have been deprived of access to antecedently existing resources. Extraction multiplies rather than depletes the available pool of economic values. Instead of subordinating entitlements to the requirements of the proviso as Lyons has proposed, Kirzner argues that the Lockean Proviso ought to be dispensed with as a constraint upon property acquisition and transfer. The creation of economic values involved in most initial acquisition is the source of the full-blown capitalist rights to property commonly associated with the historical entitlement

doctrine but which O'Neill, Ryan, and

Lyons deny Nozick has established. The disputes over the precise content of and justification for historical entitlement which enliven this final section of the book are abundant testimony to the unsettled controversy which surrounds Nozick’s libertarianism. No resolution of that controversy will be found in this volume which is intended to be a prolegomenon

Introduction

a3

for further investigation. But the significance of the disputes stimulated by Anarchy, State, and Utopia should escape no one interested in social philosophy. NOTES 1. Hillel Steiner, “Anarchy, State, and Utopia: Book Review,” Mind 86 (January 1977):120. 2. Brian Barry, “Review of ASU,” Political Theory 3 (August 1975):331-32. 3. Steiner, “Slavery, Socialism and Private Property,” in Nomos: Private Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, forthcoming). 4. Tibor Machan, Human Rights and Human Liberties (Chicago: Nelson-Hall, 1975).

5. Steiner, “The Natural Right to the Means of Production,’ eC cal Quarterly 37 (January 1977):41-49.ns

-

P

.

s

7

:

it

,

Ve

@

esse i

= m ak

_

¢

=< =

ad

:

-

:

—

»

7

Oe




I An Overview of Anarchy, State, and Utopia

:

to at es KP, brs ctate rvs

_ |

sig” 7

a

1 The Minimal State BERNARD

WILLIAMS

Why is there a state at all? Or, rather, why should there be a state at

all? What is the justification of the state? The sense that these are real questions has come and gone and come again at various times; when that sense is present, the questions step in as the basic or first questions of political philosophy. It is not obvious that they are real questions, that the demand for ajustification is a sound one. For one thing, one might be prepared to spend time on the justification only if one had an idea of some alternative to the state, and it is reasonable to feel that there are, at least now, no real candidates for that. Differently, one may reflect that thoughts about justification could get a grip only if there were some set of principles or values which were sufficiently independent of the state (in general) to give one some leverage on the question. If the ideas by means of which the state is to be levered into or out of the arena of acceptability themselves presuppose the state, we shall effect nothing. But some, with Hegel somewhere

behind

them,

will feel that there is fair

doubt on that score—the moral ideas which supposedly provide the leverage will seem to them not only to be the historical product of the state (which is certainly true, but may not be damaging), but also, in some damaging sense, to get their life from the context of the state. This last group of doubters have also their Marxist relatives,

who

can,

dimly,

discern 2F

a better

world

without

the

28

Bernard Williams

state—it is, after all, what the revolutionary process should eventu-

ally lead to—but who regard present moralizing about the existence of the state as footling, and ideologically polluted. Doubters of these last kinds are not going to be reassured by Robert Nozick’s original, remarkable, and strikingly intelligent book. He has nothing directly to say to their worries, though they should have things to learn from various of his arguments, and they should at least be forced by this energetic and inventive undertaking to put their claims in a clearer and better-argued form. As should anyone who wants to think effectively both about the existence of the state, and about what goes on in the state: for Mr. Nozick not only revives the exercise of justifying the state, but comes out with some startlingly unfashionable conclusions about what it should be up to—or at least, what it should ideally be up to. This qualification, I shall suggest at the end, is of huge importance: the “ideally” is the clue to why Mr. Nozick’s book is not what it seems, nor (still less) what some unsavoury people will, with some encouragement from the author, undoubtedly take it to be. Mr. Nozick goes back tothe traditional business of justifying the state from the ground up, the ground being provided by an imaginary set of circumstances in which there is no state; this is called by Mr. Nozick, as by the tradition, the State of Nature. This, in his presentation, helps us to understand what the state is being justified against: drawing on some particularly American elements in the anarchist tradition, he spends much more time and ingenuity than anyone else has ever done in spelling out how things might go in a partly moralized State of Nature, where various private “protective associations’ do the job, for a fee, of protecting people’s rights of life, property, and so on, against force and fraud. It is partly moralized in the sense that the people in it do, for a good bit of the time, but not unfailingly, abide by moral considerations, where these are identified by Mr. Nozick with a hard-core set of notions about rights, linked rather loosely with Kantian ideas about treating people as ends and not purely as means. (Utilitarians, of course, will not accept the moral starting-point: Mr. Nozick assumes, I think reasonably, that no one with whom it is worth having the argument of this book will be a Utilitarian (really), and he makes on the way some excellent remarks to encourage people to realize that they are not.)

The Minimal State

29

In taking the partly moralized starting-point, Mr. Nozick is in line with Locke (an author to whom he closely, and surprisingly often, refers back). More explicitly free, of course, than Locke from any historical implications of the model, he differs more deeply by excluding any idea of a contract: this is State-of-Nature theory without the social contract. In its place, he aims to derive the state from the starting-point of the model by a chain of events which involve no intentional intervention: by what he calls an invisible hand mechanism, adopting in this the language of classical economics, which alone of the social sciences is used in the book and whose methods provide some important parts of its intellectual structure. The mechanism which eventually, and after some pretty densely presented speculations, delivers the state without anyone intending it embodies an important idea of Schelling’s in decision theory (and has some similarity to David Lewis’s recent work on convention). It is an elegant idea to apply to classical State-of-Nature theory a mechanism by which one can arrive at a convention without (so to speak) holding one. The state which is delivered is, as once

more

with Locke,

the

minimum “night-watchman” state of classical liberal theory, doing no more than protect its citizens from force and fraud and such like, leaving them free to pursue their individual projects. Mr. Nozick shares Locke’s distaste for taxation,

and there is a tough-minded

economic argument to represent it as a form of forced labour (though I must warn the CBI, before they prematurely rejoice over this liberating intellectual event, that we shall see that the consequences of all this for things as they are are very far from clear). Traditional State-of-Nature theorists, in justifying the state, inevita-

bly justified a state of one kind rather than another, with one set rather than another of powers and restrictions: that was a main point of the exercise. Mr. Nozick is no exception, and the argument in the first part of the book, which justifies against the anarchists the existence

of the minimal

state,

is followed

by a second part (as

ingeniously argued, but more relaxedly written) which claims against socialists, nationalists, and indeed most people that the minimum state is the most that can be justified, and that more ambitious moral claims for the role of the state, in particular to produce justice by redistributive measures, are mistaken. Such powers, which are of course claimed in varying degrees by all

30

Bernard Williams

modern states, have, according to Mr. Nozick, no moral basis and

offend against people’s individual rights. The major effort in the second half of the book is the attempt to argue against conceptions of justice (in particular, but not exclusively, that of John Rawls) that yield redistributive conclusions, and to give another conception, which does not: we shall come back to it later. The book ends with an engaging sketch of a pluralistic, libertarian Utopia, which has the unusual property of really carrying through the libertarian ideal by not laying it down even that people should live in a libertarian manner. The libertarian arrangements exist at the higher-order level of permitting a large number of very various communities between which people may move—they are all ordered within the merely Lockean framework, but in themselves they may be as restrictive or unpermissive as you (or rather they) like. Some of the difficulties which might spring to mind about these arrangements are rather disarmingly foreseen. There is also, it should be mentioned, a bravura short chapter in which it is argued that the modern state might, after all, be justified (that is, in Mr. Nozick’s terms, could come into existence without

violating anyone’s rights). However, the squeamish reader should be warned against pressing this argument against the general tenor of Mr. Nozick’s conclusions. For the construction proceeds via everyones selling himself into slavery; and while Mr. Nozick himself, more permissive here than Locke, thinks that everyone has the moral right to do this, and hence that the results of it are not for the reason impermissible, it is typical of this structurally sophisticated and self-aware book that the reader should find himself in an ironical stand-off with Mr. Nozick on this way of getting to the modern state. The two major parts of the book, the minimally positive and the ambitiously negative, are connected with each other in more than one way. The aim of the second part is to show that no larger state is justified, by removing what Mr. Nozick takes to be the major moral arguments in favour of such a state, namely arguments from distributive justice (only the larger state can be in a position to redistribute, in the interest of what mistaken theories take to be justice). Other arguments, and indeed other moral arguments, might be thought of to support the state. But Mr. Nozick is interested only in a relatively narrow range even of moral considerations: those, roughly, to do with rights, justice and the

The Minimal State

oy

crossing of one person’s “moral boundaries” by another. It is this which dictates the narrow compass of what he thinks has to be said about the more ambitious state; equally, it controls the construction

of the minimal state. Now there is an argument for using the absolute minimum of hardcore moral notions in the first part of the book in the justification of the minimal state. For here one is arguing with someone like the libertarian anarchist, whose ideas these are, and the shape of

the argument is to say: “Look, even with those (few) moral ideas one can get to the state” (though of course the rest of us, neither libertarian anarchists nor very tempted by them, might say right at the beginning that the anarchists’ bag of moral ideas was too small anyway, and that we saw no interest in trying to cram that morally elaborated item, the state, into it). But, even if one is prepared to defend the state against them on the strength of this moral hardtack, one is not bound to say that this is all the argument, even of a moral character, that can be brought to bear on the state) nor, correspondingly, are we bound to think that the only defence of the moral character,

that can

be brought

to bear on the state; nor,

closely related, notions. We might think that there were other values besides justice which the more elaborated state alone could advance: and that there was nothing in the intuitions employed in the first part of the book which will exclude these other values being weighed in the evaluation of the state. Mr. Nozick’s defence of his negative claim, that the more elaborate state is not justified, is inevitably weakened by the restrictions imposed on the range of arguments which he considers in favour of such a state. Not just the second part of the book, but the first part as well, would be weakened if it could be shown that even the hardcore values, the minimal moral package of notions about rights, derived some essential support from sources outside the limited repertoire of the State of Nature (one form of that view, of course, would be

held by those theorists I mentioned at the beginning, who think that in one way of another the minimal moral notions themselves derive their life from the state—indeed, from the elaborated state). Locke's treatment

has often been criticized on that score;

Mr.

Nozick’s

sophisticated reversion to Locke collects sophisticated versions of the criticisms, and it is surprising he has not done more to head them off.

a2

Bernard Williams

In particular, he has tried—using, obviously, much ingenuity in the attempt—to get to his destination while avoiding any general discussion of a notion central to his views: property. He does have something to say about Locke’s requirement that, when those in the State of Nature acquire things, there should be “enough and as good left over’ for others. But, apart from that (which presents certain special problems for his theory of entitlement), he does not really address himself to the issue of what is an originally just holding at all, or of property as (what he requires) a purely moral notion. Hence, while there is a great deal in the discussion of the State of Nature about people’s “boundaries” and how they get crossed, there is no discussion of where their boundaries are, or of how they get drawn. There is thus a persistent doubt about whether the State of Nature can really be got off the ground without taking for granted conventions and institutions of a kind which the State of Nature does not itself provide. Certainly we cannot hope to get clear about this just by using such intuitions as we have as things are about non-legal and informal ideas of property—they can too readily be seen as extensions of more institutionalized notions.

Another difficulty with the State-of-Nature argument is what its rules are. Mr. Nozick reckons to have succeeded in his task against the libertarian anarchist if an invisible-hand mechanism would produce the state without violating anyone’s rights, granted that the individuals are (partly) moralized. But there is an obscurity about why this thought-experiment operates as it does (why, one might equally say, this is the thought-experiment): Mr. Nozick presents us with a set of persons who behave like economic men, but within the side-constraints, for the most part, of minimal morality; only “for the most part”, since a lot of the machinery is designed to deal with persons who do violate others’ boundaries, and not all such violations are unintentional. Now the steps in the development of the thought-experiment, though many and complex, are notably unrealistic, if judged from the position of social or psychological credibility. Thus, to take just one of many examples, the protection agencies, which are in economic competition with one another, show a commendable zeal in establishing the rights and wrongs of claims against their clients; but even a modest lack of optimism about human nature would suggest that in fact they would be partial

The Minimal State

33

towards their clients, hypocritical towards potential clients, and horrible towards confirmed non-clients. Now Mr. Nozick is not an optimistic idiot who disbelieves this; the point is, these considerations do not count. But why not? What weight is there in the fact that we could, relative to certain wildly idealized psychological assumptions, reach the state without violating anyone’s rights? The motivation seems to be, that the (minimal) state will have been justified if it can be generated by steps each of which satisfies moral demands; and this is taken to mean that we can

get there without anyone doing anything wrong. But how is this to be taken? The condition cannot be that we should be able to get there without anyone doing anything wrongat all, since it is a fact that some people sometimes do wrong which essentially contributes to our getting there, and helps to power the invisible hand. By the same token, the condition cannot be that there is no wrong whose happening is essential to our getting there. So what exactly is it? How much wrong goes into the model, and where? Why cannot a sceptic resist the invisible-hand derivation, on the ground that its

pictured working is too free of wrong to be plausible? As it stands, Mr. Nozick seems—though I am not sure of this—to have settled for individuals in the model sometimes doing wrong, but associations not doing wrong; if that is correct, the model seems arbitrary. In any case, the derivation as it stands lacks any evident ground for being precisely as un-Hobbesian as it is. Still less, of course, does it justify any existing state: for no state arose in this way, and it is Mr. Nozick’s thought, certainly in his theory of justice, and I take it here, that how a state of affairs actually arose is crucial for its acceptability. This is the basic idea of his theory of justice as entitlement, and of his criticism of Rawls (and many other conceptions). A holding is just, on this view, if it has been acquired by a just process from a holding which is itself just: at the beginning is a notion of just acquisition (on which, as I have already said, Mr. Nozick has notably little to say). Supplementary to the processes of just acquisition and just transfer are processes of rectification for situations which are unjust in one of these respects (holding, or transfer, or previous rectification): and that is all there is of the basic theory of justice. Mr. Nozick makes elegantly clear the difference between such a

34

Bernard Williams

historical theory of just holdings, and an end-state theory, which concerns itself essentially with the pattern in which holdings end up, and seeks to adjust the pattern to some desired paradigm: Utilitarianism, and egalitarianism, and Rawls’s view are all end-state

views. (There is a very nice demonstration that the State-of-Nature model which Rawls uses, that of the Original Position, is so designed that it could only yield an end-state conception of justice.) It will be clear how, at an ideal level of politics at least, Mr. Nozick’s

conception, as against end-state views, favours a strongly conservative outlook. What are the intuitive merits of these ideas? There are questions, right at the beginning, about how to argue these issues. Mr. Nozick’s basic method, throughout, is to take some everyday, non-political situation about which we are likely to agree, and apply our judgment in it to the larger issue of social principle—a method which, it might be argued, begs the question in his favour, since it

presupposes his view that no new moral principles arise (should arise?) with the state. But even running the argument by his rules, his conception of justice does look like an enormous exaggeration of at best one aspect of our moral ideas. It is hard to know how far this is so, in fact, because, once more, we lack any theory of original entitlement. But suppose that, when the Mayflower arrived, some foresighted fellow, crouching by the gang-plank, jumped off and bagged a good area of what is now Massachusetts, before his companions, more cooperative, pious, idle, or enfeebled, got going; it looks as though Mr. Nozick, if we assume there would no prior holders, would grant him just title. Do we agree? Would it be unjust to redistribute in favour of those others (even the idle)? Wasn’t it unfair of this man to take advantage of the fact that the others did not spend those crucial moments thinking about property rights? Would a certain fact about the end-result, namely that the nice guys came (nearly) last, have no effect at all on our estimate of the justice of this man’s holdings? These are questions for Mr. Nozick’s theory of justice (and its application to this case); but we can notice more broadly that, even if

we eventually agreed that this pushy settler was not to be faulted in justice, that would only underline the point that we could hope that the Pilgrims, and ourselves, would have arrived with more virtues than justice. We are reminded again of that richer range of moral

The Minimal State

35

resources (of the kinds of character, for instance, that we want to

have in society) which Mr. Nozick’s treatment systematically leaves out.

There are other ideas and sentiments relevant to justice, which

his treatment also passes over. What advantages, and their rewards, are candidates for redistribution is a real question, which egalitarians should face more honestly than they mostly do; but the fact that we should agree (most of us) with Mr. Nozick that compulsory plastic surgery was no just reaction to inequalities in good looks, need not commit us all that quickly to agreeing with him on the evidently different matters of money and power. Again, and near the heart of Mr. Nozick’s view, the very matter of distance (in time,

over successive transfers, or whatever) does in fact affect the sentiments of many about injustice: the luck of the talented commands more respect, some find, than the luck of those who merely had a talented father. These are also “our” notions, in as good standing, at least, as those to which Mr. Nozick appeals, and his

conception of justice merely as a pipe for the rightful delivery of rights over any distance is not tested against enough notions to be really persuasive. This is a book of a very highly theoretical character; indeed its theories themselves have a tendency to pursue the virtues of formal elegance rather than of concrete realism, as witnessed by the presence of much economic theory and virtually no psychology or sociology. This leaves the conclusions rather high in the air, particularly above present political realities. These views leave undetermined to a high degree what should now, in current political practice, be done—to a greater degree than most political theory, including Locke’s; they are in a deep sense Utopian, and the third element in the title is rightly juxtaposed with the others. This is not necessarily a failing: but it should be written in larger letters what the book does not offer. Above all, its theories do not, except in a very general and associative manner, offer any particular comfort to contemporary capitalism. For one thing, contemporary capitalism is

a statist enterprise. For another, Mr. Nozick’s derivation theory of justice does not imply that contemporary property holdings are just; on the contrary (though it is a matter of unrecoverable fact), it is 99 per cent probable that almost all of them are not. (Mr. Nozick may well think that much of America rightfully belongs to the Indians.)

36

Bernard Williams

And in a vitally important but unemphatic passage (page 231) he makes it clear that redistribution by the state may well be, as things are, necessary for the rectification of past injustice. There is little comfort in these pages for contemporary friends of business; but Mr. Nozick hardly makes it as clear as he might that this is so. Within this abstract,

complex,

clever, and always stimulating,

structure there is to be found, one suspects, a robust and romantically creative individualist outlook which, though undoubtedly tough, is in quite a different street from that of the friends of business's nastier friends. But it will be partly Mr. Nozick’s own fault if they, and their enemies, think otherwise.

2 The Right to be Rich or Poor PETER SINGER

When

times are hard and governments

are looking for ways to

reduce expenditure, a book like Anarchy, State, and Utopia is about

the last thing we need. That will be the reaction of some readers to this book. It is, of course, an unfair reaction, since a work of philosophy that consists of rigorous argument and needle-sharp analysis with absolutely none of the unsupported vague waffle that

characterizes too many philosophy books must be welcomed whatever we think of its conclusions. The chances of Gerald Ford reasoning his way through Nozick’s book to the conviction that he ought to cut back the activities of the state in fields like welfare, education, and health are not high. The book will probably do more good in raising the level of philosophical discussion than it will do harm in practical politics. Robert Nozick’s book is a major event in contemporary political philosophy. There has, in recent years, been no sustained and competently argued challenge to the prevailing conceptions of social justice and the role of the state. Political philosophers have tended to assume without argument that justice demands an extensive redistribution of wealth in the direction of equality; and that it is a legitimate function of the state to bring about this redistribution by coercive means like progressive taxation. These assumptions may be 37

38

Peter Singer

correct; but after Anarchy, State, and Utopia they will need to be defended and argued for instead of being taken for granted. Anarchy, State, and Utopia falls into three sections, as its title indicates. Part I tries to show that a minimal type of state—the “nightwatchman” state of classical liberal theory, limited to protecting its citizens against force and fraud—can arise legitimately, without violating anyone’s rights. In the second part Nozick argues that the minimal state is the most extensive state that can be justified and that any more extensive state does violate people's rights. The book ends with a section contending that the minimal state is, harsh appearances notwithstanding, an ideal worth fighting for. All three sections are well worth reading, although the third is the slightest. Here Nozick, finding incredible the supposition that there is one best form of society for everyone, proposes instead a “metautopia’ —a framework for many diverse utopian experiments, all formed of voluntary communities,

so that no one can impose his

version of utopia on others. Within a community people may voluntarily adopt redistributive measures, and those refusing to participate may be excluded from the community; but within a nation, which would include many communities, there should be no compulsory redistribution. The idea is appealing because it enhances individual freedom. But there are serious objections that are not adequately considered. Could a community that wanted a lot of redistribution survive the departure of the wealthy members whose moral principles are weaker than their desire for wealth? Could it withstand the pressure of applications to join from the down-andouts left to starve in neighboring communities run by ruthless capitalists? Or, to take a different kind of objection,

could a community

maintain its dedication to an austere life of virtue if it were surrounded by the flashy temptations of America capitalism? Nozick would say that the choice between austere virtue and flashy temptation must be left to the individual; but doesn’t this assume an ability to make free rational choices that most people simply do not possess? Is the free flow of information sufficient to wash away the encrusted muck of billions of dollars worth of advertising for a style of life devoted to the acquisition of consumer goods and the elimination of stains and odors? Nozick’s vision of utopia fails to deal with

The Right to be Rich or Poor

39

the fundamental Marxist objection to classical liberalism: people may make choices, but they do so under given historical circumstances which influence their choices. We do not enable people to govern their lives by giving them a “free” choice within these limits while refusing to do anything about the contexts in which these choices are made. To say this smacks of paternalism and has unpleasant totalitarian associations. But what if the choice lies not between paternalism and freedom, but between making a deliberate attempt to control the circumstances under which we live and allowing these circumstances to develop haphazardly, permitting only an illusory sense of individual liberty? I ask the question seriously, not rhetorically. Perhaps it can be answered, but Nozick passes it by with a fleeting reference to Tocqueville's idea that being free develops the capacity for freedom, and this reply does not touch the heart of the issue.

The arguments of Part I are directed mainly against the anarchist who objects to any state at all. Nozick does not say that a state is a good thing and we are all better off with a state than we would be without one. This obvious procedure for dealing with the anarchist would be foreign to Nozick’s entire approach and would set a precedent subversive of his aim in the second part. Instead he maintains that we can get from a state of nature to a minimal state without violating anyone’s rights, so that there is no point at which anyone can claim that the state has assumed authority illegitimately. Nozick begins his story in a state of nature modeled on that of John Locke,

but he leaves

this natural

condition

by another

route,

avoiding the need for the agreement or social contract that has been a source of so much criticism for Locke and his followers. Nozick’s minimal state, or “state-like entity” as he sometimes calls it, is a kind of protection agency to which people in the state of nature pay a fee for protection from assault, robbery, and so on. Nozick argues plausibly that clients of the agency would give up to the agency their rights to punish violations of their rights, and that one protective association, or federation of protective associations, would become dominant in each geographical territory. So, without any express agreements or over-all intention on anyone's part, people in the state of nature would find themselves with a body that satisfies two fundamental conditions for being a state: it has a

Peter Singer

40

monopoly of force in its territory, and it protects the rights of everyone within the territory. Together with the story of the development of the state in the first part there are many other interesting subsidiary discussions. There are sensible answers to such puzzling questions (for laissez-faire liberals) as why blackmail (payment for the service of silence about another's affairs) should be prohibited; and why, for that matter, we should ever prohibit anything, rather than allow violations of rights provided that the victims are adequately compensated. Although Nozick admits that the book contains no full-scale presentation of the moral

basis for his views,

there

is some

unorthodox

moral

philosophy, including a lengthy discussion of the place of nonhuman animals in morality. Nozick thereby becomes one of the small but growing number of contemporary philosophers who have given this neglected topic genuine consideration, and he joins those who urge radical changes in our treatment of nonhumans, including the recommendation that we stop eating them. Interesting as the first part is, for those of us who have little

difficulty in accepting the moral legitimacy of some minimal kind of state, the excitement begins only when we enter the second part. A reader who is sympathetic to government policies designed to redistribute wealth and who has taken for granted the justice of such policies will be surprised at the strength of the arguments Nozick brings against this view. One book cannot deal with all the reasons that have been urged in support of extending the functions of the state beyond the protection of its citizens against force and fraud. Therefore Nozick selects what he considers the strongest, and most widely accepted, case: the claim that a more extensive state is justified in order to achieve justice in the distribution of wealth. It is this claim that receives the brunt of his attack on the extended state. Nozick uses the term “holdings” to describe the goods, money, and property of all kinds that people have. The issue, then, is what holdings people would have in a just society. The position Nozick takes is a radical departure from the theories of distributive justice discussed by most philosophers, especially in recent years. Nozick characterizes the principles of justice usually advocated as “patterned.” A patterned distribution is one which (to put the matter more loosely than Nozick does) can be summed up in

The Right to be Rich or Poor

4]

some simple formula of the type: “To all according to his—.” The blank can be filled in by “need,” “labor,” “moral desert,” “IQ,” “noble blood,” or whatever—the result will always be a patterned distribution. In any existing society, the distribution of wealth will presumably not correspond exactly to any preordained pattern, so that to achieve a just society we shall have to take a bit from here and give a bit there, until people’s holdings correspond to what we think is the right pattern. In contrast to all patterned theories, Nozick proposes the “entitlement theory”: a distribution is just if it arises from a prior just distribution by legitimate means. Basically, you originally acquire something justly if you take something that belongs to nobody, without thereby making worse the position of others no longer able to use the thing. (For example, I can appropriate land for myself if it is unowned and there is enough good land left for others.) Here Nozick again follows Locke, although his account is more precise. Then there are legitimate ways of transferring things you own, especially voluntary exchange and gift. As a result there is no pattern to which a just distribution must conform. People may choose to retain what they start with, or give some of it, or all of it,

away. They may make profitable investments, or unprofitable ones. They may live frugally and hoard what they have, or dissipate it in a wild spree. They may gamble. So long as their original holdings were justly acquired, and the decisions they made involved neither force nor fraud, the result will be just no matter how widely people's holdings vary. The entitlement theory of justice makes the justice of a given set of holdings depend on the history of those holdings, and not on the conformity of the outcome to a given pattern. Both the strengths and the weaknesses of the entitlement theory are immediately apparent. On the one hand, can it really be just that one baby should come into the world with a multi-million-dollar trust fund, the best possible schooling, and family connections with the nation’s leading politicians and financiers awaiting him, while another baby faces life in a dingy apartment with no money and nothing else to help him on his way in the world? Neither baby at the moment of birth can possibly deserve anything; an equal division would therefore seem the only just one. On the other hand, if the father of the first baby acquired his holdings legitimately, violating no one’s rights in the process,

42

Peter Singer

doesn’t should that he no one poorer

he have the liberty to give whatever is his to his son, if he so choose? Isn’t it implied in someone’s owning something has the right to do with it what he will, provided he violates else’s rights? And surely it is far-fetched to hold that the baby has a right to some of the other baby’s wealth, merely

because his ancestors were less fortunate, less astute, or less frugal

in their handling of their holdings. Our intuitions lead us in both directions. One must be wrong. Nozick tries to convince us that it is the former set of intuitions— those relating to the injustice of inherited wealth and other inherited assets—that we should give up. He does not attempt the hopeless task of arguing that those born with large fortunes or valuable natural talents have done anything to deserve these assets. Nevertheless, he says, people are entitled to their inherited assets,

whether or not they deserve them. In the case of wealth he points out that orthodox theories of justice overlook the right of the donor when they consider the worthiness of the recipient of the inheritance. As for natural talents, people do not violate anyone else's rights by having the natural talents they are born with. An artist has the right to keep a painting he has done even if his artistic talent was inherited and he did nothing to deserve it. So why shouldn't a born entrepreneur have a similar right to the fortune his talents have brought him through legitimate means? The legitimacy of redistribution in the direction of equality is, as Nozick says, more often assumed than argued for. We discover that, say, the wealthiest 5 percent of the population hold 40 percent of the national wealth, and then we ask what can be done about it. On the entitlement view these facts do not in themselves suggest that we ought to do anything. It all depends on how the present distribution came about. It might have come about by unjust means, through force and fraud, or through an unjust original acquisition, in which case reparations should be paid to those who are now worse off because of this injustice (though Nozick is unable to explain how we decide whether a person’s ancestor left sufficient good land for others when he appropriated his first field five hundred years ago). But the present distribution might also have come about entirely legitimately, in which case the compulsory redistribution of wealth would be a serious violation of people’s rights. Nozick’s position sounds severe, and so it is. According to Nozick

The Right to be Rich or Poor

43

we have no obligation to help those worse off than we are. If a starving man drags himself to our house, where we are entertaining our friends with a sumptuous banquet, we are perfectly within our rights in sending him away without a crust. In mitigation, though, it is important to remember that Nozick has nothing against voluntary donations from the rich to the poor. The rich are within their rights to keep everything they have and throw what they cannot use down the sewer; but they also have the right to give everything away, and the generous and charitable will no doubt give some away. Indeed, on the question of voluntary donations Nozick has some interesting points to make. He argues, I think conclusively, that those relatively wealthy people who advocate greater government redistribution (which would take from people like themselves and give to those poorer) can have no sound reason for not making, while they wait for the government to act, voluntary donations from their own pockets of the sum that would be taxed from them under the scheme they advocate. Presumably this argument applies to those who advocate greater government foreign aid, as well as to those who limit themselves to internal redistribution. An ingenious illustration buttresses the entitlement theory. We start by supposing that holdings are distributed in accordance with some patterned conception of justice—let’s say the conception of equality, so that everyone has exactly equal holdings. Now suppose that several basketball teams would like to have Wilt Chamberlain playing for them. He signs a special contract with one, stipulating that he gets twenty-five cents from the price of every home game ticket. The fans are happy to pay the surcharge; the excitement of seeing Chamberlain play is worth it to them. One million people attend

during

the season,

so that Chamberlain

winds

up with

$250,000, far more than anyone else in the society. The transactions between Chamberlain and his fans have upset the original, hypothetically just, pattern of holdings; but, Nozick asks, is the new distribution unjust, and if so, why? Can it be a source of injustice that a million people chose to spend twenty-five cents on seeing Chamberlain play, rather than on candy bars or magazines? Since they chose to spend it in this way, knowing that it would go to Chamberlain, surely they can have no just claim against the man they have made rich. As for those citizens who did not attend the games, their holdings are entirely unaffected by the

44

Peter Singer

transactions between Chamberlain and his fans. If these third parties had no just claim against the holdings of the transacting parties before the payments took place, how can the transfer give them a just claim to part of what was transferred? Yet that is precisely what those who accept taxation for redistributive purposes must believe. In general, Nozick says, no patterned principle of justice can prevail without continuous interference in people’s lives. A socialist society would, as he puts it, have to “forbid capitalist acts between consenting adults.” I have been able to indicate only the main strand of Nozick’s argument. There are many fascinating sidelines as well. For instance Nozick is able to show that if workers’ control of factories is desirable, it will be possible to establish it within the framework of

his theory, by voluntary action. Indeed, he points out, the larger trade unions already have sufficient financial reserves to set up worker-controlled enterprises; and even smaller groups, or a single wealthy radical, could do the same, especially since consumers who favor worker-controlled enterprises could band together and buy only from these companies. Why, Nozick asks pointedly, has this not happened? Nozick also challenges the view that greater equality will produce an equality of self-esteem and the elimination of envy. Self-esteem, he claims, is based on criteria that differentiate; if these criteria are

equalized it will need to be based on something else. Trotsky’s vision of a communist society in which the ordinary man is able to fulfill his potential to such an extent that he becomes an Aristotle, a Goethe, or a Marx does not mean that the ordinary man will have

greater self-esteem. New peaks will rise beyond the heights of Aristotle-Goethe-Marx, the ordinary man will think of himself as just another Aristotle-like commoner, and envy the new superAristotles. There is also some hard-headed discussion of the Marxist idea of exploitation and the labor theory of value. On these side issues Nozick may not always be right, but he is always stimulating; an open-minded study of what he has to say could be a healthy tonic for romantic leftists. On the main issue, what I have said should be enough to show

The Right to be Rich or Poor

45

that Nozick’s case against compulsory redistribution is strong. Can it be met, and if so, how?

The first question here is whether to attempt to meet Nozick on the ground he has chosen—ground clearly indicated in the very first sentence of Anarchy, State, and Utopia: Individuals have rights, and there are things no person or group may do to them (without violating their rights).

So we must decide whether to try to show that a system of justice based on individual rights, including a right to property, can permit—or require—compulsory redistribution; or, on the other hand, to deny that individuals have the rights that Nozick says they have, in the strong sense of the term that he intends. In raising this question we come back to the most basic division between moral and political philosophers of modern times. For centuries there have been two lines of thought about justice. According to utilitarian theory, espoused by David Hume, Jeremy Bentham, and later utilitarians, principles of justice are rules that work for the greater good of all. They are governed by the principle of utility. If we take from the rich and give to the poor we do so not because the poor are entitled to some of what the rich have but because the poor will benefit more from this redistribution than the rich will suffer. The utilitarian who is not trying to hedge will admit that his account of justice allows property to be confiscated from one person so that another, or several others, may benefit. The alternative view of justice associated with John Locke and Immanuel Kant starts with individual rights and prohibits the use of one person as a means to another's end. The incorporation of Lockean rights into the Declaration of Independence and the Constitution of the United States ensured the dominance of this tradition in the political rhetoric and in the moral, legal, and political thinking of this country. There is a certain appropriateness in the fact that Nozick’s chief opponent within this tradition is the American philosopher, his Harvard colleague, John Rawls. In his recent and widely celebrated book, A Theory of Justice, Rawls tried to develop a conception of justice that would be an alternative

to utilitarianism,

taking seriously “the distinction be-

46

Peter Singer

tween persons’ (which he claims utilitarianism, in subordinating individual rights to the general good, does not do) and ruling out “even the tendency to regard men as means to one another's welfare.” The problem Rawls faced, however,

was how to square

this with his intuitive conviction that justice requires us to improve the condition of the poorest members of our society, whose poverty is not really their own fault. Rawls attempted to solve this problem by arguing that if people in what he calls “the original position’—a hypothetical state of nature in which, to ensure impartial decision-making, people are assumed to be ignorant of their own talents and socio-economic status—were to choose the fundamental principles of justice to be followed in a newly formed society, one of the principles they would choose would be that inequalities are allowable only in so far as they improve the position of the worst-off group in the society. Rawls thinks that people in the original position would make this principle—which has been called the maximin rule, because it seeks to maximize the minimum level of welfare existing in the society— subordinate to another principle guaranteeing maximum equal liberty for all. Whether they would give this priority to liberty need not concern us here, since we are considering only economic redistribution. Rawls’s maximum principle is compatible with considerable inequality. If, as some economists argue, steeply progressive taxation reduces the incentive to work of the most talented members of society to the point where they contribute less to the society and everyone,

including the worst-off,

suffers, then it would be just,

according to Rawls’s principle, to allow these people to keep most of their wealth,

although others may have much

less. Doctors,

for

example, might be allowed to keep more than others. Nevertheless the maximin rule is difficult for egalitarians to argue against, because any attempt to approach closer to equality would necessarily, at the same time as it narrowed the gap between the worst-off and the better-off, make the worst-off still worse-off than they were before. Though strongly protected against the attack from egalitarians that appeared most likely, the maximum principle was soon shown to be vulnerable at other spots. Since the appearance of A Theory of Justice a book and a number of critical reviews? have exposed fundamental

weaknesses

in its central arguments,

including the

The Right to be Rich or Poor

47

argument for the maximin principle. The devastating critique of Rawls in Anarchy, State, and Utopia, directed especially at the case for redistribution in accordance with the maximin rule, must very nearly complete the demolition of Rawls’s impressive structure. In part, the force of Nozick’s criticisms depends on Rawls’s own

desire that his theory account for and systematize the particular judgments about justice that we ordinarily make.? For Rawls, finding a plausible general theory that confirms most of our ordinary judgments of what is just is the aim of any theory ofjustice. But as Kenneth

Arrow

has noted in a discussion of Rawls’s theory,4 the

most widely held intuition about distributive justice—which Arrow and most other teachers find it difficult to dissuade introductory students from thinking completely self-evident—is the view that an individual is entitled to what he creates. This view is, of course,

much closer to that of Nozick than to Rawls’s. I believe that Rawls is mistaken in thinking that the test of a moral theory is its ability to‘account for the particular moral judgments we already make. That approach comes too close to making the justification of what we already believe the sole task for moral philosophy. One of the strengths of Nozick’s criticism, however, is that even if Rawls were to abandon his ideas about how moral theories are to be tested he would still be unable to defend his position. For Nozick has shown that Rawls’s case for the maximin principle rests on an unjustifiable asymmetry between the worst-off and the best-off in a society. Rawls argues that the worst-off could accept the justice of, and cooperate in, a society governed in accordance with the maximin principle, but not one governed according to, say, the principle of utility. This is because in any society governed according to any principle other than the maximin principle there would always be a group of people at least as badly off as the worst-off in a maximinruled society. Provided the maximin rule has been properly applied, this is necessarily true; but, Nozick insists, Rawls glosses over the equally important mirror-image question: why should the better-off accept the justice of and cooperate in the society? Under the maximin rule, after all, the better off may have to make substantial sacrifices to help the worst-off, perhaps much greater sacrifices than they would have to make to satisfy the principle of utility. For instance, to put the matter in monetary terms, assume that a tax of 75 percent on all

48

Peter Singer

incomes over $15,000 would, after deducting administrative and other costs, allow welfare payments to the worst-off group to be increased by only $1 per person per year. The maximum rule would require that the tax be levied. So Rawls is able to conclude that the maximin principle would be the one that people in the original position would agree to only because he considers the matter from the perspective of those who fear they will be among the worst-off, rather than from the perspective of those who hope to be among the better-off. For this reason he fails in his attempt to derive the maximin principle in a neutral manner from what reasonable people would agree upon under conditions requiring impartiality; and in addition Nozick is able to make the telling point that the fundamental flaw Rawls finds in utilitarianism—the failure to rule out “even the tendency to regard men as means to one another's welfare’—can be found in Rawls’s own principle. The maximin rule treats the better-off as a means to the welfare of the worst-off. Indeed one could say (though Nozick does not) that the tendency to treat people as a means to another's end is greater under the maximin

rule than under utilitarianism,

since a utilitarian would give equal consideration to everyone's interests, whereas the maximin rule forbids giving any consideration to the interests of the better-off, allotting them goods solely in so far as doing so assists the worst-off. There remain many interesting and illuminating points in Rawls’s

long book, but its foundations are now seriously undermined. The question we must face, then, is whether any conception of distributive justice that accepts individual rights, particularly the right to property, and prohibits absolutely treating one man as a means to the welfare of another can withstand the arguments Nozick has directed primarily against Rawls. If the answer is negative we shall have to choose between a conception of justice such as Nozick’s and our conviction that a society does not have to rely on the charity of its wealthy members for the relief of its poorest members. The enthusiasm which greeted Rawls’s theory of justice when it first appeared may in part be explained by the fact that it was the first fully worked-out alternative to utilitarianism since W. D. Ross’s intuitionist thoery lost favor in the 1930s.5 If more careful consideration has found Rawls’s theory wanting, opponents of utilitarianism lack, once again, a developed alternative theory—except, that is, for

The Right to be Rich or Poor

49

Nozick’s entitlement view. Nonutilitarians not wishing to accept the conclusion that coercive redistribution of wealth is a serious violation of rights urgently require an alternative theory of rights. What else is there? Not much. While, as Nozick points out, there is no lack of unsupported presumptions in favor of equality, there is a surprising dearth of arguments for equality. Nozick discusses one of the few arguments that have been widely discussed—generally with approval—by philosophers: that put forward by Bernard Williams in his article “The Idea of Equality.”® Williams argues that the proper ground of distribution of medical care is ill-health; and that, therefore, it is irrational for the distribu-

tion of medical care to be governed by the ability to pay. On first reading many of us will find this argument for some degree of equality convincing. But, Nozick asks, why should the internal goal of an activity take precedence over the particular purpose of the person performing the activity? By a parallel argument it could be said that the proper ground of distribution of barbering services is the need to get one’s hair cut; but if we think a barber need cut the

hair only of those able to pay, why should a doctor not do the same? What Nozick’s facetious counterexample indicates is that the plausibility of Williams’s argument lies not in any supposed necessary truth about the proper ground of distribution of medical care but in the claim that a society should provide for the most important needs of its members. This is a plausible claim, but it is only a claim and Williams does not argue for it. So we still do not have an argument for equality. Wisely, Nozick remarks that his readers will probably feel that the case for equality all hangs on some other argument, and says he would like to see that argument

set out in detail. That, unfortu-

nately, is where the attempt to refute Nozick on the ground he has chosen—accepting a doctrine of individual rights that includes a right to property—rests at the present time. Which is not to say that it will rest there long. There is tremendous activity in moral and political philosophy nowadays and if a response to Nozick’s challenge is not already in preparation it soon will be. What if we refuse to accept the ground Nozick has chosen? The natural alternative is then utilitarianism. There are other possibilities, but none that seems likely to be very attractive to those who reject Nozick’s position because of its prohibition on coercive

50

Peter Singer

redistribution of wealth. In A Theory of Justice, for instance, Rawls considers as alternatives to his own theory only utilitarianism and what he calls “the Principle of Perfection.” Perfectionism, which is

the theory that we should maximize the achievement of excellence, was most strongly advocated by Nietzsche and is even further from concerning itself about the worstoff than Nozick’s theory is; and when more plausible advocates of a perfectionist position talk about social justice, they tend to water down their perfectionism with a dose of something that looks like utilitarianism.7 Utilitarianism has no problem in justifying a substantial amount of compulsory redistribution from the rich to the poor. We all recognize that $1,000 means far less to people earning $100,000 than it

does to people trying to support a family on $6,000. Therefore in normal circumstances we increase the total happiness when we take from those with a lot and give to those with little. Therefore that is what we ought to do. For the utilitarian it is as simple as that. The result will not absolute equality of wealth. There may be some who need relatively little to be happy, and others whose expensive tastes require more to achieve the same level of happiness. If resources are adequate the utilitarian will give each enough to make him happy, and that will mean giving some more than others. A more serious possibility is the one we discussed in connection with the maximin principle. If it is necessary to give more to those with talents useful to society, to encourage them to develop these talents in a way that will benefit others, then utilitarians would have to do this. Actually the evidence for this commonly accepted hypothesis is weak; financial incentives may not be as important as we think. So some inequality would result from the application of utilitarian principles to a society like ours, but far less than there is now, and the inequalities that remain would not (in my view) be objectionable. Nozick describes Rawls’s view as an “undeniably great advance over utilitarianism.” From his standpoint that is a reasonable estimate. Rawls’s theory is a half-way house between utilitarianism and Nozick’s own position. But if having gone half-way with Rawls we are forced by the logic of our position to go all the way with Nozick, it could be that we went wrong when we started out. None of the arguments Nozick uses against Rawls is decisive when invoked against a utilitarian position. Utilitarianism gives a clear and plausi-

The Right to be Rich or Poor

OL

ble defense not merely of progressive taxation, welfare payments, and other methods of redistribution, but also of the general right of the state to perform useful functions beyond the protection of its citizens from force and fraud. Utilitarianism also provides an argument in defense of the claim behind Williams’s argument for equality—that society should, so far as its resources allow, provide for the most important needs of its members. Nor do we have to go all the way with the utilitarians to be in a position to advocate self-directed redistribution of income. The problem of whether we can accept a utilitarian account of noneconomic rights like the right to freedom of speech or freedom of worship need not be raised here, for Nozick’s argument is mainly addressed to economic rights. We can deal with property in a utilitarian manner, rejecting the doctrine of an intrinsic right to property, without necessarily rejecting the idea that there are some intrinsic rights against the state. For the remainder of this discussion, though I shall talk simply of “utilitarianism,” it will be this limited economic utilitarianism to which I am referring. Nozick, aware that utilitarianism is a more fundamental rival to

his position than other conceptions of justice, tries to get it out of the way in the first part of the book, when discussing the moral background of his theory. The discussion is sketchy, however, and falls below the level of the later sections. Nowhere is utilitarianism fully and systematically confronted. Nozick mentions some wellknown objections but, with one exception, does not pursue the replies that utilitarians have made when these objections have been raised in the past. The exception is interesting. In opposition to the view, which utilitarians have held, that the only things that are good or bad in themselves are states of consciousness, or conscious experiences (pleasant or happy ones being good, painful or miserable ones bad), Nozick asks us to imagine that we can build an “experience machine” which would give us the satisfactions of a wonderful life—any life we'd like—while we float in a tank with electrodes plugged into our brains. If we had such a machine, Nozick says, we would choose not to use it—and this shows that things other than experience matter to us. In anticipation of the reply that we would not use the machine because, as good utilitarians, we would be concerned about other

o2

Peter Singer

people’s (and other animals’) experiences as well as our own, Nozick makes the further assumption that everyone is able to plug into one of these machines. This means that we cannot give point to our lives by improving the experiences of other beings; the experience machine gives everyone who wants them the best possible experiences anyway. Nevertheless, Nozick says, we would not plug in, and this ,is because in addition to wanting to have certain experiences we want to do certain things and be a certain sort of person. We desire to live in contact with reality, and this no machine can do for us. Perhaps. It is worth noting, though, that it is difficult to know what, in a world in which everyone could plug into an experience machine, there would be left to do, other than plug in; and how it

would be possible to “be a certain sort of person.” How could one be, for example, a kind or courageous person (Nozick’s examples)? What could I do to anyone else that showed kindness, if everyone else could have whatever experiences he wanted without my kindness? When would there ever be any point in being courageous? Maybe it would seem a pointless world, and plugging into the machine a pointless kind of existence, but that is because we are used to having the possibility of improving experiences, our own or those of another, to give point to our normal existence. Take away the point of trying to improve the experience of ourselves and others and perhaps we do take away the only thing beyond our own experience that gives point to our lives. Maybe life as a whole doesn’t have any point beyond experience itself. Nozick’s example is bizarre enough to have a bizarre answer, and the bizarreness of the

answer that the orthodox form of utilitarianism gives is an insufficient reason for rejecting that theory. Even if we find that Nozick’s example does refute the idea that states of consciousness are the only things intrinsically good or bad, however, Nozick has refuted only one form of utilitarianism, Several recent utilitarian writers, including nearly all those writing in the field of welfare economics, have taken wants or desires, rather than states of consciousness, as the starting point for utilitarian calculations. It is intrinsically good, on this view, if someone gets what he wants, and bad if he does not. This version of utilitarianism is not threatened by Nozick’s experience machine: if there are things that

The Right to be Rich or Poor

53

we want other than experiences, well and good, utilitarianism will

try to make it possible for us to get them. So the utilitarian alternative to a theory of justice based on individual rights to property remains open; though other theories will no doubt be put forward, those wishing to avoid the conclusions of Nozick’s book may find themselves reconsidering one or another version of utilitarianism, and questioning whether the right to property must be taken as seriously as American political thought has taken it for the last 200 years. NOTES

1. Some other philosophers who have written on this issue are included in Animals, Men and Morals, edited by S. and R. Godlovitch and J. Harris (Taplinger, 1973). See my review in The New York Review, April 5, 1973. 2. The book-length study is The Liberal Theory of Justice by Brian Barry (Oxford University Press, 1973). Among the more notable critical reviews have been those by Thomas Nagel in the Philosophical Review (April, 1973) and the two-part critique by R. M. Hare in Philosophical Quarterly, July and September, 1973. 3. This point was brought to my notice by Gregory Pence. 4. Kenneth

J. Arrow,

“Some

Ordinalist-Utilitarian

Notes

on

Rawls’

Theory of Justice,” Journal of Philosophy, LXX, 9 (1973), p. 248. 5. See W. D. Ross, The Right and the Good (Oxford University Press, 1930).

6. In Philosophy, Politics and Society (Second Series), Laslett and Runciman, eds. (Barnes and Noble, 1962). 7. For example, Bertrand de Jouvenal, The Ethics of Redistribution (Cambridge University Press, 1951). 8. See, for example, Jan Narveson’s Morality and Utility (Johns Hopkins Press, 1967). The upshot of R. M. Hare’s ethical theory is also a utilitarianism of this type: see Freedom and Reason (Oxford University Press, 1963) and “Wrongness and Harm” in Essays on the Moral Concepts (University of California Press, 1972).

aT . =" E

pres

pei

4

a

>

a

7

¢

he

7 es

QF

i

vv

-

rere

’

4

“i

‘

7

71

uy

1

:

:

=

of.

“a

‘

wai

= iz ul

:

®

.

——*.

Je t)

ce

Ve

apes

oa

viel

ae) ae Oe

| fe

iT 2

tg

Pee

ee ie

. -

i

a

engl Ps

-_

el

1

-

_

$

-

i

fe sa Ht tet ag aaaad r oie tO e

(a

Paw

a”

™

ates ;

Il Contra Anarchism:

Justifying the Minimal State

3 Nozick on Anarchism ROBERT

L. HOLMES

Those of us who feel that anarchism is the closest approximation to the truth in political philosophy find it difficult to decide sometimes whether that theory has suffered most at the hands of its defenders or at the hands of critics. Since the latter are at least intentionally bent upon giving anarchism a bad name, and the former are chiefly an embarrassment to their allies, perhaps it is the critics who most need to be reckoned with. Among them, in any event, is Robert Nozick,

a large part of whose

Anarchy,

State,

and

Utopia‘

is

devoted to attempting to refute anarchism. It is that critique which I propose to examine here. I

The anarchist’s objection to the state, as Nozick represents it, is that inasmuch as the state (1) monopolizes force and punishes those who violate this monopoly and (2) provides protection for everyone within its territory by requiring some to finance protection for others, it violates certain moral “side constraints” in the form of

natural rights and, hence, is immoral (p. 51). Nozick may be excused for formulating the anarchist’s position for him, since with few exceptions anarchists have not done so themselves with the exactitude one might wish. We may also, for present purposes, overlook the fact that the anarchist’s objection is framed in terms of Nozick’s own particular conception of morality, in which 57

58

Robert L. Holmes

moral side constraints constitute moral prohibitions, and the pursuit

of ends may legitimately be carried on only in ways which do not violate those prohibitions. This makes the theory a deontological one and means that it does not reflect the position of any defender of anarchism on teleological grounds. Finally, it should be noted that the objection is also framed against the unexamined background of Nozick’s particular State-of-Nature theory, according to which individuals have Lockean natural rights. Inasmuch as those rights include the right to use violence and punishment against others in relevant circumstances, the unquestioned assumption of such rights leaves nonviolent anarchists out of the picture from the outset. So, bearing in mind that anarchism is represented in Nozick’s critique by at most one species of anarchism, let us see how it fares. II

Let us first consider the general outline of the argument, after which we can turn to the relevant details. Nozick’s contention is that from a State of Nature (SN) in which people possess natural rights and generally act morally (making this a “most favored” situation of anarchy), there will, if some persons do not act morally and violate the rights of others, evolve first Mutual Protection Associations (MPAs) in which individuals purchase protection against others like a market-governed economic good, and eventually a Dominant protective Association (DPA), an MPA of preeminent power in a territory. The DPA will, in turn, eventually evolve into an Ultra Minimal State (UMS), a DPA in which protection is purchased as an economic good but which, in addition, has a monopoly of force. The latter, finally, will evolve into a Minimal State (MS) which, in addition to possessing the two features of the UMS, will make a “redistribution” (though not really a redistribution, Nozick contends at p. 114) of protection to certain indepen-

dents (nonclients of the UMS) at cost to the clients. Thus, there are

four stages in the process: from SN to MPAs, from MPAs to a DPA, from a DPA to a UMS, and finally from a UMS to an MS. Now two questions are central here: (a) whether it is plausible to suppose that the above process would in fact develop from an SN, and (b) whether that fact would be of significance if it were. Taking the latter first, the answer for Nozick is that it would be significant

Nozick on Anarchism

59

because it would provide a moral justification of the state. Let us see . why. To do this we need to introduce some additional concepts. First, there is the notion of an Invisible Hand Explanation (IHE), which for Nozick is, in effect, an explanation in terms of an Invisible Hand Process (IHP). An IHP, in turn, is a process the outcome of which

appears to have been intended—i.e., to be the product of design— but in fact was not. A Fundamental Potential Explanation (FPE), finally, is an explanation which would “explain the whole realm under consideration were it the actual explanation” (p. 8) and would do so in terms other than those of the realm. Now Nozick’s contention is that the state is justified if (1) it can be given an FPE,

(2) that explanation is (or contains, or makes use of) an IHE, and (3) no morally impermissible steps are involved in the IHP by reference to which the IHE_is given.?

And, indeed, he believes that the account of the evolution of the

state (MS) implied by the preceding meets these conditions. To show that an MS would eventually evolve from an SN without presupposing that it was the deliberate intention of persons to produce a DPA, a UMS, or an MS, and without presupposing any morally illegitimate steps, is precisely to give an IHE of the State of the required sort. Thus, in answer to question b, an MS can be shown to be morally justified if it can be shown that this process would occur under the above conditions. Ill

This leaves us with question a, whether it is plausible to suppose that the process by which an MS would evolve from an SN would in fact take place. I want to focus principally upon the transition from a DPA to a UMS which is effected by the acquisition of amonopoly of force by the DPA. Nozick’s burden is two fold here. He must show not only that it is plausible to suppose that the monopoly of force would in fact arise within the DPA, but also that it would be morally legitimate that it do so. The anarchist’s objection is not that a DPA would acquire a monopoly of force (indeed, most anarchists would

60

Robert L. Holmes

agree that it would), but that its doing so would violate the rights of some individuals. Here the argument breaks down into two parts. One proceeds with the “facilitating assumption” of so-called procedural rights, the other without it. Let us take these in turn. Though the notion of a procedural right is not explained by Nozick, the following presumably constitutes such a right: the everyone has a right to resist, in self-defense, “if others try to apply to him an unreliable or unfair procedure of justice” (p. 102; or, as he sometimes adds, a procedure of unknown reliability of fairness).* Since anyone can transfer this right to the DPA (presumably by purchasing the appropriate protection policy), the DPA can acquire the right to intervene and prohibit independents from privately enforcing justice against its clients. And if people do in fact so empower

the

DPA,

then

the

DPA

has this right,

and

so acts

legitimately in monopolizing force, and so, in the process, comes to constitute a UMS.4 We can now see the ground of the final transition to the MS. For Nozick points out that the independents in a given territory will obviously be disadvantaged by being prohibited from defending themselves or enforcing their right to punish wrongdoing. This fact calls into play a (presumably moral) principle which requires that when one is disadvantaged by being prohibited from performing a risky activity, as the independent’s “procedure of justice” supposedly is by virtue of being unreliable, he must be compensated for that disadvantage. Through reasoning which we need not detail here, and with some qualifications concerning ability to pay which we may ignore, Nozick concludes that it is morally required that independents be compensated for this disadvantage, either in money or in kind. Whereas self-interest has been the chief factor in the IHP up to this point, this final trasition to the MS thus makes use of amoral motivation. It is only ifthe UMS is motivated by the desire to compensate independents for the disadvantage its monopoly of force imposes upon them that it will transform itself into an MS.

The problem in all of this centers about the fact that although the process leading to the emergence of the MS must take place without the presence of any morally impermissible steps, the argument for the final stage in the process presupposes a morally impermissible

Nozick on Anarchism

61

step. The disadvantage to independents resulting from the monopoly of force is morally wrong. It is for this reason that the independents deserve compensation. And that the monopoly is exercised without their being compensated is the distinguishing feature of the UMS, which means that there is an essential stage in

the overall process which is without moral justification. This gives rise, therefore, to the following dilemma: either the UMS is legitimate or it is not. If it is, then there is no reason to suppose that people will move beyond it to the MS, in which case the overall process does not result in a state. If it is not, then the whole process

contains an obviously impermissible stage, in which case the account fails to meet Nozick’s own criterion for the legitimacy of a state as well as that part of the anarchist’s objection which holds that the monopoly of force by the state is immoral. In short, either it is wrong to prohibit independents from trying to enforce their rights and to punish them for doing so, in which case the UMS acts immorally in doing these things, or it is not wrong, in which case there is no reason to transcend the UMS. But let us leave this aside and return to the second part of the argument to legitimize the monopoly of force leading to the UMS, that which proceeds without the assumption of procedural rights, an assumption which Nozick concedes might seem to make his argument for the monopolization of force “too easy” (p. 103). The reasoning here is almost impenetrably obscure until the final stages, but, as it is the latter with which we shall be concerned,

I shall

merely sketch the rest. First, the chief problem confronting the argument: if the client is actually guilty of violating the rights of an independent, then not only does the independent have the right which everyone possesses to punish the wrongdoing, but the client himself has no right (of the procedural sort in the first part of the argument) which he can transfer to the state to warrant its intervening on his behalf. The burden of Nozick’s argument,

then, is to justify the DPA’s

pro-

hibiting (before the fact) of presumably innocent victims of wrongdoing at the hands of its clients from exercising their rights of self-defense and proportionate punishment; and to justify its punishment of them (after the fact) for having exercised that right against a client.> (Nozick, it should be noted, shifts back and forth between speaking of punishment and speaking of porhibition. It is

62

Robert L. Holmes

prohibition which he needs to justify for purposes of the final stage of his argument which makes use of the notion of compensation. If one were to suppose that, instead of prohibiting private enforcement of justice, the DPA merely punishes independents for such enforcement, the notion of compensation would become pointless.

If one is going to compensate someone for having punished him, it would be simpler not to punish him in the first place. And if compensation is morally required, it is difficult to see how the punishment for which it is offered could be morally justified.) Now Nozick contends that no one has a right to use an unreliable procedure (or one of unproven reliability) to decide whether to punish another, and hence no one has a right to punish another as the result of a determination made by such a procedure. But this appears to contradict the ascription to everyone of the right to punish the guilty. For if the client is guilty, then the victim has the right to punish him. So, we might ask, what difference does it make whether the procedure by which the victim determines the latter’s guilt is one of proven reliability? He is doing what he has a right to do in any case and, hence, one would have thought, cannot justifiably be prohibited by anyone—least of all, the anarchist will add, by the protostate. Nozick attempts to deal with this objection by saying that it matters not whether we say (a) that a person does not have a right to do x in the absence of appropriate knowledge of wrongdoing on the part of the person to be affected, or (b) that he has the right but does wrong to exercise it in the absence of such knowledge (p. 106). (It is strange that he says this, since given the background theory of natural rights with which he is operating, alternative a would imply that people do not have the various “natural rights” antecedently to coming to possess the appropriate knowledge; a condition which, given even moderately stringent conditions of knowledge, would suggest that we have few if any rights in the SN.) This represents a “terminological fork,” and Nozick opts for alternative b which opens the way to the formidable sounding Epistemic Principle of Border Crossing (EPBC);: If someone knows that doing act A would violate Q’s rights unless condition C obtained,

he may not do A if he has not ascertained that C obtains

through being in the best feasible position for ascertaining this. [106f.]

Nozick on Anarchism

63

Now Nozick contends that anyone (presumably including the DPA) may punish violators of this principle, so long as he himself does not violate the principle in the process. Since our victimized independent is, by hypothesis, about to enforce his rights by means of a procedure of unproven reliability, this means that condition C in the EPBC (the determination of the client’s guilt by means of a procedure of proven reliability and fairness) has not been met, and hence that he is in violation of the principle. The DPA is, therefore, fully

justified in prohibiting his action or punishing him after the fact of its performance (so long, of course, as it does not violate the principle itself)—even though its client is guilty and the victim has a right to punish him. But recall that this stage of the argument to justify the monopoly of force is supposed to proceed without the assumption of procedural rights (specifically, one presumes, without the right enunciated in the key premise of the first stage of the argument, to the effect that everyone has a right to resist in self-defense if anyone attempts to use an unfair or unreliable procedure of justice against him). And notice that the claim that anyone has the right to punish violators of the EPBC implies that anyone has the right to punish a person who attempts to punish someone without first having ascertained their guilt by a procedure of justice of proven reliability. If everyone has the right to punish violations of this principle, then anyone whose rights are violated by it has that right. And if one has the right to punish violators of the principle against himself, it seems unproblematic (by whatever reasoning Nozick himself uses to shift from the right to prohibit to the right to punish in his own argument) that he has the right to resist before the fact of having suffered the violation. But this is precisely the right to resist the use against oneself of an unreliable procedure of justice, which means that the very “procedural right” which was alleged to make the first part of the argument seem too easy has reappeared in the second part.

If the DPA can punish violators of the EPBC only on condition that it not itself violate the principle, this implies, moreover, that its

own procedures are of proven reliability and fairness. Yet there is no independent criterion by which to establish this to be found in Nozick. He simply reiterates that the DPA will apply its own criteria according to its lights and will be the one entity in a position to enforce their acceptance (p. 118). If reliability and fairness are

64 defined

Robert L. Holmes in terms

of what

the

DPA

decides,

this of course

is

question-begging and yields a theory of “might makes right.” If they are not, some

independent criterion must be forthcoming before

one can judge whether the DPA itself is in violation of the EPBC. For, just as Nozick can hypothesize that independents are likely to employ unreliable procedures. States are made up of individual persons and derive their rights and conception of rights from them, so that whatever measure of unreliability is thought to attach to the procedures of independents—and presumably individuals generally—is likely to carry over to the state itself. The very reasoning by which the state judges independents’ procedures to be unreliable should therefore lead it to question its own procedures. If so, the DPA acts wrongly in prohibiting independents from selfhelp enforcement, in which case that particular feature of the monopolization of force cannot be justified. One might counter this, of course, by arguing that if the state uses only fair and reliable procedures, then it is justified in its actions against independents. But an anarchist can agree with this. His objection is not to the truth of that conditional, but the claim that the antecedent is, or is ever

likely to be, fulfilled. By the same token one can way that if the independents’

procedures

are fair and reliable,

then there is no

need of the state. And Nozick can agree with this. The relevant question concerns the likelihood of the procedures being fair and reliable in the two cases, and one side cannot refute the other by assuming simpliciter that they will be fair in the one and not in the other. Let us suppose, however, that these problems can be surmounted and concern ourselves finally with the key assumption in Nozick’s argument. That assumption, implied by option b in the terminological fork, is that we can distinguish between the having of a right and the having of a right to exercise that right. It is this which enables Nozick to avoid the contradiction cited earlier. For if all that the DPA does is to prevent the victimized independent from exercising his right to private enforcement of justice, and does not in the process violate his right to private enforcement, there is no contradiction. The independent, then, still has the right like everyone else to defend himself and to punish those who violate his rights. What he does not have is the additional right to exercise the first

Nozick on Anarchism

65

right. Therefore, when the state prohibits him from exercising that right, it does not violate any of his rights, and hence its monopoly of

force involves no morally impermissible steps. Now this is a strange notion—that before I can do whatever it is that I have a right to do, I must first have a right to exercise that right. This would suggest that before I can do what the second right authorizes, I must first have a third right, namely, the right to exercise the second right, and so an ad infinitum; either that, or that

there is an ad hoc criterion by which to distinguish rights whose effective implementation presupposes a second-order right from those which do not. But can one even make sense of requiring as a condition of being justified in doing what one has a right to do that one have a further right to exercise that right? I think not. A right do x is, if one may be pardoned, a right to do x. To do x is to exercise the right. The exercise of the right is not another act over and above that which, in the possession of the first right, one has a right to do. It may be that what Nozick has in mind here is that one might actually have a right to do x, but have insufficient evidence that he has this right to be warranted in his belief that he has it. His reference to “subjective” and “objective” rightness would suggest this (p. 107). That this is possible is a fair and uncontroversial point. But if there are right and wrong actions determined by natural rights, and the latter exist independently of social conventions and of their being thought to exist by individuals—as Nozick seems committed to holding by virtue of his conception of the SN—then if a person has a right to do x, as by hypothesis the victimized independent does, it follows that it is actually right for him to do x, whatever his grounds for thinking so. And if to have a right do x means that it would be wrong for anyone to prohibit you from doing x, then it is in fact wrong for the DPA to prohibit you from doing x. If the DPA

does not know this, then it is the DPA,

and not the

hapless victim of its client who is about to be victimized a second time, which acts wrongly. Even for the DPA correctly to perceive that the independent has not proven that he is not violating its client’s rights in punishing him does not alter the fact that it violates his rights when it intervenes. The independent acts rightly in doing what he believes he has a right to do, even if the ground for his belief is inadequate, whereas the DPA does not.

66

Robert L. Holmes a

If this is correct, then the argument to show how the state would emerge from an SN fails, and the anarchist will regard this latest

effort to justify the state as simply revealing the lengths to which one must go—whether under libertarian or totalitarian banner—to try to justify the violation of individual rights that is inherently associated with the state. If one holds that rights are only a part but not the whole of morality, then one can argue that sometimes it is right ot even obligatory to violate individual rights. One can do so on the grounds that it would minimize the overall violation of rights or promote a greater good. But these are options which Nozick expressly rejects. And one cannot have it both ways. If individual rights are inviolable, and if individuals, as Nozick insists, may not be

sacrificed for the good of others, then they may not be sacrificed for the good of, or in the interest of, the state, and even less for the sake of enabling the state to exercise a monopoly of force. NOTES

1. (New York: Basic Books, Inc., 1974) Page references will be included in the text. I have benefited in what follows from suggestions by Peter Hamblin and Ted Lockhart. 2. This is a reconstruction of Nozick’s argument. Although it diverges at a few points from what he actually says, it is, I believe, the most coherent rendering of his overall criticism. 3. By “procedure of justice” Nozick sometimes means a procedure by which to enforce one’s rights, sometimes a procedure by which to determine guilt or innocence, and sometimes a procedure by which to punish. Inasmuch as the first of these seems to be the appropriate sense in the context of this portion of his discussion, and inasmuch as, in that context, it could be taken to imply the other two, we shall take all of these to be bound up in the notion ofa “procedure” as he conceives of it, with different aspects being emphasized at different times. 4. This right to monopolize force, it should be noted, is considered by Nozick to constitute only a de facto, not a de jure, monopoly (p. 108f). By this he means only that the right which the DPA comes to possess is not a unique right of which it is the sole possessor. Everyone has this right. 5. There is an overlay of qualifications here which include the following:

(a) that the client on whose behalf the DPA is intervening has purchased the appropriate policy to protect him in cases of this sort; (b) that the indepen-

Nozick on Anarchism

67

dent’s “procedure” of enforcing justice is either unreliable or unfair or of unknown reliability or fairness (presumably by comparison with other practices of enforcing justice); (c) that prior to the infliction of punishment by the independent the DPA may, if it deems his procedure (in this case for determining guilt or innocence) unrealiable, itself investigate and presumably prohibit punishment only if it determines that its client is innocent; (d) that the independent’s action is a “risky” one which would be feared by others if expected. It is difficult to be certain that these exhaust the qualifications Nozick intends throughout chapter 5, but they do not alter the basic features of the situation highlighted above.

4 The Withering of Nozick's Minimal State JEFFREY PAUL

In Part I of his Anarchy, State, and Utopia Robert Nozick proposes a new solution to the old problem of political legitimacy. The problem of political obligation within a natural rights framework received its classic treatment in John Locke's Second Treatise of Civil

Government.

There,

Locke

adduced

two

necessary

and,

cumulatively, sufficient conditions of political obligation: first, that civil society be created by the unanimous agreement of the governed and second, that the public instrument so created be granted only the substantive power of protecting natural rights. As a natural rights libertarian Nozick finds the social contract an insufficient basis for establishing political legitimacy. In the first place, the state created by it monopolizes protective services and, thereby, restricts the property rights of those succeeding generations who were not parties to the contract. In the second place, it transfers to the majority the power to tax the citizenry, binding subsequent generations to that power, again, an apparent contravention of Lockean property rights. These weaknesses lead Nozick to seek a new instrument of political legitimacy in an “invisible hand” process which can transform the state of nature into civil society without depriving the governed of their Lockean natural rights. In what follows I will contend that this attempt to replace the 68

The Withering of the Minimal State

69

social contract with an invisible hand mechanism is a failure, so that

Nozick’s minimal state never receives the justification that would politically obligate its citizenry. In attempting to construct that justification Nozick tries to be responsive to the libertarian critique that the contractarian created minimal state is rights violating in the aforementioned ways. This critique would, if sustained, imply that any state, no matter how limited in authority, is not justified. It is the libertarian

anarchist,

then,

that Nozick

feels compelled

to

answer in justifying his new instrumentality of political obligation. The libertarian anarchist, according to Nozick, opposes on two counts even the minimal state which confines its activities to the protection

of libertarian

anarchist opposition,

rights.

First,

the

state,

says

Nozick’s

is a coercive monopoly in the provision of

certain services (legislation, adjudication, and punishment) and so,

arbitrarily and forcibly prevents the free use of personal property to hire or finance such services. This type of restriction upon the use of property is an obvious violation of Nozick’s principle of justice in transfer and so, is apparently anti-libertarian in nature. The state’s coercive monopoly is, for this reason, rejected by Nozick’s libertarian anarchist. But the anarchist has another reason for condemning the state according to Nozick. Its geographical monopoly on legal violence implies that it assumes responsibility for the protection of all those within its domain whom it has forcibly deprived of the means of self-protection, including those who will not voluntarily remunerate it for such protective services. This obligation seemingly requires the redistribution of property from those who are willing (and able?) to pay the state for its services to those who are neither willing nor able to make such payments. Hence, the state, of necessity, appears to violate libertarian principle by being redistributive. Nozick’s method of rebutting these anarchist complaints includes an explication of the steps by which a state of nature becomes transformed into a minimally governed society and an alleged demonstration that each of these steps is morally permissible, i.e., is rights preserving. In order to assure that the transition from anarchy to minarchy violates no one’s Lockean rights, Nozick undertakes to show that the state’s monopolistic and redistributive functions were acquired precisely in order to defend rights. I will contend that Nozick’s arguments in this regard fail.

70

Jeffrey Paul

Nozick’s narrative of transition begins with a state of nature in which a number of mutual protection associations have arisen, each engaged in the defense against and punishment of violations of libertarian rights. How, Nozick inquires, does one of these become a government without transgressing libertarian principle? That is, on what grounds can one agency violently restrict the rights protecting activities of other agencies without infringing upon the property rights of those agencies and their clients? On the grounds, answers Nozick, that the means being employed by those other agencies are inappropriate to the end of rights protection; that they, in fact, systematically risk rights violation. And their very riskiness provides the justification for their forcible prevention, according to Nozick. Now, how can this be? Risky behavior is certainly not the moral equivalent of rights violating behavior. And on the Nozickian view it is only examples of the latter that may be coercively prohibited. How can agencies whose behavior is risky but not rights violating have their operations forcibly, but justifiably, curtailed? Nozick’s

view,

here,

seems

to be that a procedure

of rights

protection which risks a rights violation can be forcibly prevented, provided that the individual whose rights were being defended via the risky procedure is suitably compensated. But, how does the compensation “erase” what ought to be considered on Nozick’s own _ principles a straightforward violation of rights? Either the risky activity of the agency constitutes a violation of rights, or it does not. If it does, then its prohibition is merely a legitimate defense of rights and no compensation ought to be due the perpetrator of the violation who would be a criminal on Nozickian grounds. If the risky activity was no violation of rights, then, its forcible prevention is a wrongful (rights violating) act which deserves at least punishment and, perhaps, compensation. But, to say that an act of “risk prevention” is not wrongful and, yet, requires the payment of compensation to its victim would appear to be, within Nozick’s libertarian context, a contradiction. For, either a principle of entitlement has been contravened or not. If so, compensation is due, if not, no

restitution is indicated. Nozick’s alleged third category of threats to entitlement would seem to be vacuous from an entitlement perspective.

Further, if a particular risky activity is neither actually rights

The Withering of the Minimal State

71

violating nor intended to be rights violating, then someone who finds the activity threatening is free to negotiate its cessation with its perpetrator, or to threaten him with prosecution should the activity result in injury. More than this he cannot do on entitlement grounds.! Nozick has objected to this kind of argument because it is sometimes too difficult or costly to negotiate with the perpetrator. But, so what? Difficulties and costs are not, according to Nozick’s historical principles of justice, entitlements. In order to buttress his case for an alleged third category of activity, neither criminal nor tortious, but requiring prohibition nevertheless, Nozick unfurls the notion of a procedural right. If the

requisite degree of riskiness can be identified with a failure to abide by certain procedural proprieties and, if those proprieties can be elevated to the status of a right, then occasions for prohibition become, at once, objectively evident and morally justifiable. They are objectively evident because what Nozick calls “relatively reliable procedures” are codified by various protective agencies and, therefore, the question of whether they have been adhered to can be independently assessed. Morally, an individual “. . . may resist, in self-defense, if others try to apply to him an unreliable or unfair procedure of justice. In applying this principle, an individual will resist those systems which after all conscientious consideration he finds to be unfair or unreliable. An individual may empower his protective agency to exercise for him his rights [emphasis my own] to resist the imposition of any procedure which has not made its reliability and fairness known, and to resist any procedure that is unfair or unreliable.”? If procedural reliability has attained the status of a moral right, then it may be robustly defended. Although everyone possesses this right, according to Nozick, and, therefore, “Everyone may defend himself against unknown or unreliable procedures and may punish those who use or attempt to use such procedures against him’4 only the dominant protective agency will be able to enforce its clients’ procedural rights: . its strength leads it to be the unique agent enforce a particular right. It is not merely that exerciser of a right it grants that all possess: the that once a dominant power emerges, it alone

acting across the board to it happens to be only the nature of the right is such will actually exercise that

te

Jeffrey Paul

right. For the right includes the right to stop others from wrongfully exercising the right, and only the dominant power will be able to exercise this right against all others. Here, if anywhere, is the place for applying some notion of a de facto monopoly: a monopoly that is not de jure because it is not the result of some unique grant of exclusive right while others are excluded from exercising a similar privilege. Other protective agencies, to be sure, can enter the market and attempt to wean customers away from the dominant protective agency. They can attempt to replace it as the dominant one. But being the already dominant protective agency gives an agency a significant market advantage in the competition for clients. The dominant agency can offer its customers a guarantee that no other agencies can match:

“Only those procedures we deem appropriate will be used on our customers.°

Therefore, by morally permissible means we have, according to Nozick, the morally permissible state. Or do we? The argument appears markedly flawed at several stages. First, there is the notion of procedural rights itself. This is the notion of a right to be judged by a certain type of procedure which implies the rightful authority to punish the wielder of unreliable procedures. But, whence

comes

this right? Clearly,

it is not an entitlement

principle. It does not specify how certain “holdings” come to be justifiably acquired. Nor do substantive procedures seem deducible from the manifestly formal Lockean rights. How could specific sets of procedures be implied by entitlement principles? Such procedures are obviously strategies adopted by legislators and jurists, not entailments of the natural rights. Typically, a procedural right is a convention defined within and granted by a particular legal code. It is not an abstract, pre-legal natural right, but a right created by and recognized within a specific body of law. Its authority does not extend beyond that particular legal code. To speak of procedural rights which transcend and may be defined apart from any particular code is at least odd, if not obscurantist. Yet, Nozick analogizes his conception of procedural rights to Locke’s extra-legal notion of natural rights, thereby attempting to impart to it the political force of a Nozickian entitlement. Nozick’s commitment to this construal of procedural rights would seem to involve him in a regression problem. For, if everyone accused of violating Lockean rights has a right to be judged according to reliable procedures, then, suppose one’s procedural rights are

The Withering of the Minimal State

fe

themselves transgressed. Must not this alleged transgression be evaluated according to a set of relatively reliable second-order procedures? And those second-order procedures will require a third-order set so that putative invasions of their second-order predecessors might be adjudicated reliably. And so on. Each rights violation is potentially encumbered with an infinite set of decision procedures. And no agency will ever be able to dominate its competitors for it will never be able to complete its deliberations which may require an infinite length of time should there be continuous allegations of procedural impropriety. At this point Nozick might wish to respond that the dominant agency will simply terminate its deliberations at any point in time that it becomes convinced of the reliability of its procedures. But this move would fail on two counts. First, a putative property rights violation can only be established through a reliable procedure. Similarly, an alleged procedural rights violation can only be properly identified by another reliable procedure. As long as procedural improprieties are alleged by someone to have occurred, that allegation can only be evaluated by a review which employs some further set of procedures. Once the spectre of procedural impropriety has been raised the issue can be resolved either by further procedural review or through the exercise of force majeure by the dominant protective agency in order to arbitrarily terminate the reviewing process. In the former case, the procedural review is a potentially infinite one and, consequently, one which will not culminate in the

emergence of an ultraminimal state. In the latter situation, the dominant protection agency after failing to establish its claims of procedural propriety through further procedural review may well transform itself into the minimal state, but it will have done so by trampling the rights of others and, so, contra Nozick, the state will have emerged through the use of immoral means. In either case, a moral minimal state will not have arisen and Nozick’s argument for its evolution, therefore, fails. In fact, even if Nozick’s commitment to procedural rights did not imply an infinite set of such rights, the transition from dominant protection agency to minimal state might still not be morally effected. For suppose X is the dominant protection agency but

applies suboptimal procedures to the clients of others while believing its procedures to be more reliable than those its competitors. Y,

74

Jeffrey Paul

on the other hand, is an independent whose procedures are, in fact,

more reliable than X’s. X’s erroneous beliefs concerning its own procedures lead it to inhibit the use of the more reliable procedures of Y on its clients. X, thereby,

becomes

a minimal

state, but by

morally impermissible moves. Furthermore, I would contend that Nozick’s attachment cedural rights implies a commitment to what I would call mated anarchism.” Nozick concedes that “Everyone may himself against unknown or unreliable procedures and may those who use or attempt to use such procedures against This, of course,

includes

the clients of the dominant

to pro“staledefend punish him.”®

protection

agency. Yet, in the process of prohibiting procedures which it believes to be defective the dominant agency may deprive others of their rights to reliable procedures as they understand them. The problem, here, is that there is no specific set of procedures common to all protection agencies that would enable public or independent verification of alleged procedural rights violations. Procedural rights in the state of nature refer to no body of rules other than those devised by anyone who cares to think them up. With many persons believing their procedures to be best and with no independent means of assessing the comparative merits of those beliefs, why is anyone entitled to impose his own views to the exclusion of others? Of course, Nozick has demonstrated that the dominant agency has

the strength to do so, but does it have the right to do so? If everyone has the right to impose procedures which are in fact ideal, but, if, because of the emptiness of the Nozickian concept of procedural rights they are never able to identify those procedures with certitude, then everyone is entitled to impose what they believe to be procedurally best. But, this means that the dominant agency may not act in contravention of the beliefs of others. Hence, it morally may not act at all (although, of course, it is fully able to act) when its views of procedural propriety are in dispute. And so long as there is a plurality of views about what constitutes procedural justice, it is morally impermissible to move from anarchy to statism. And so we are left in the limbo of “stalemated anarchy.” Recently, Nozick appears to have modified his views on procedural rights somewhat.?

His views, now,

appear to be that one

may prohibit behavior which risks a rights violation if one compensates the potential violator for any disadvantage incurred by him.

The Withering of the Minimal State

75

This argument does not utilize the procedural rights notion. But, the problem, here, is that no right has been actually violated. On Nozick’s own entitlement criteria, the use of coercion in order to

prohibit a risky but non-rights violating action would be inappropriate.

One might negotiate with the risk taker, attempting to induce him to desist from his risky activity. Nozick rejects such prior negotiations as not conducive to what he calls “productive exchanges.”® Such exchanges are defined in terms of the benefits accruing to the parties as a result of the exchange, as well as the motivations of the parties, and not in terms of coercion and ownership. If X and Y both justly acquired what they exchanged and did so voluntarily, then the propriety of the exchange is, on entitlement grounds, established whether or not that exchange is “productive.” Hence, a negotiation motivated by the desire to avert risky but non-coercive action is a perfectly plausible and morally superior alternative to the forcible prohibition of risky activity. And such prohibitions,

if not clearly defensive

in nature

are

violations

of

rights. If such prohibitions are in fact defensive then no compensatory payment is due the perpetrator of the offensive and invasive act. But, if the dominant agency does not have to compensate those whom it justifiably defends its clients against, no basis exists for “redistributing” its services to the clients of independent agencies. As a monopolization of such services is a sine qua non of the minimal state, no such entity can possibly arise. For without procedural rights, agencies can merely defend their clients and punish criminals. They cannot forcibly restrict the enforcement power of others, nor are they obliged to replace the prohibited enforcement services of others with their own as a form of compensation. And so, we must conclude that with or without the conception of procedural rights Nozick’s minimal state cannot arise by morally permissible means. The “invisible hand” mechanism, designed by Nozick to replace Locke’s social contract fails as a justificatory lubricant for political authority: hence, the withering of Nozick’s minimal state.

76

Jeffrey Paul NOTES

il. Nozick considers this sort of criticism and dismisses it, cryptically, as “too short.” If he is referring to the parsimony of this kind of argument then his dismissal is logically groundless. Brevity is neither a formal nor informal fallacy of reasoning. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, Inc., 1974), p. 83. 2. Nozick, pp. 71-73.

. Nozick, p. 102. Nozick, p. 108. . Nozick, p. 109. . Nozick, p. 108. TMP -~URD w . Remarks made by Robert Nozick at the Liberty Fund Conference on Tiberty: Ethics, and the Economy held by the Center for Study of Public Choice, Virginia Polytechnic Institute and State University, Blacksburg, Virginia, July 11-22, 1977. 8. Nozick, pp. 84-88.

o Robert Nozick’s Derivation

of the Minimal State ROBERT

PAUL WOLFF

In Part I of Anarchy, State, and Utopia,! Robert Nozick undertakes to demonstrate, on the basis of what would ordinarily be considered

libertarian anarchist moral and metaphysical assumptions, that a de jure legitimate state could come into existence by a sequence of steps, no one of which violated any person’s rights; that such a state would satisfy a plausible definition of the state of the sort Max Weber enunciated; that it could function as a state without violating

anyone's rights; and that such a state would be a genuine minimal, or nightwatchman, state. In Part II, Nozick goes on to argue that a state so conceived could be no more than a minimal state without violating someone’s rights. In this Article, I propose to subject the argument of Part I of Anarchy, State, and Utopia to examination and criticism. After a brief summary of Nozick’s argument, intended to bring into view the elements of it which are especially important for my analysis, I shall develop my critique in three stages, beginning with purely internal considerations of the consistency of Nozick’s argument, given his premises, and proceeding to more and more “external” 77

Robert Paul Wolff

78

considerations. My conclusions will be that Nozick’s argument is internally unsuccessful; that a number of the background assumptions of his argument are wrong, in ways which vitiate his theory; that his entire mode, or style, of doing political philosophy is inappropriate to its subject matter; and finally, that the peculiar tone of Anarchy, State, and Utopia serves as a clue to what is awry with it philosophically, as a piece of political theory.

NOZICK SARGUMENT Nozick begins with nature.2 He simply ally knowable moral ble rights possessed

a group of individuals in a Lockean assumes that there is a clear, objective, law which determines the absolute and by those individuals and the duties each

state of rationinviolaowes to

others. The individuals, on the whole, are not so righteous as to

ensure that they will always act as the moral law commands, but they are sufficiently righteous so that rights-violations, while a genuine social problem are nonetheless a marginal rather than a central fact of life in the state of nature. The individuals have conflicting interests, but they can benefit from far-reaching, systematic exchange, interaction, contract, and cooperation. What is more,

it makes coherent sense to speak of them as individuals, in abstraction from or independently of their social origins and inheritance. The moral law, as Nozick invokes it, has rather blurry outlines,

although the author appears to have a penetratingly clear intuition of it. However, certain of its key provisions emerge in his discussion. Rights are inviolable; hence they function as absolute, not merely as prima facie, constraints on the actions of others. Political philosophy “is concerned only with certain ways that persons may not use others; primarily, physically aggressing against them.” Oddly, but not surprisingly, Nozick construes the attachment of one’s property as an act of physical aggression, and hence as fit subject matter for political philosophy. Each individual has the right to punish others for their aggressions against him, although he does not have the right to punish them unless they have aggressed against him, nor may he punish them inappropriately.4 Most important of all, any person, A, has a right to punish any other person, B, for B’s violation of the rights of a third person, C. This claim is merely asserted by Nozick without proof, but it is the

The Derivation of the Minimal State

79

foundation stone of the entire edifice (however minimal) of the legitimate state. With this set of assumptions, Nozick proceeds to develop his argument fairly rapidly in four steps:

1. Individuals in a state of nature have a right to band together, through contractual agreement, for purposes of mutual protection.® 2. Those individuals have the right, collectively, to assign to employees or agents such rights of self protection, punishment, and so forth as they possess individually and have pooled contractually.® 3. Market forces, strategy calculations, and the like may lead to the emergence

of a dominant protective association in a territory.

Such an association will possess a de facto monopoly of physical force, which it has acquired by a series of totally permissible acts.” 4. The monopoly protective association, or “ultra-minimal state,” will have an obligation to compensate nonclients, if there are any,

for the disadvantage they suffer in their dealings with clients backed by so powerful a protective association. Hence it will have a right, indeed, it will have a duty, to “tax” its clients for the money to buy

some sort of protection for the disadvantaged non-clients. This apparent “re-distribution” constitutes it a nightwatchman state, in the traditional sense.®

In Part II, Nozick elaborates a neo-Lockean theory of property, the “entitlement” theory, for the purpose of denying any further claims that may be made against the nightwatchman state—claims of the sort that usually go under the banner of “social justice.” Since the rights dealt with in Part I are all property rights, given Locke’s view that each of us owns, or has sole property in, his own body; and

inasmuch as the argument of Part I is couched entirely in terms of boundary crossings, disadvantages, compensations, and the like; it is clear that the theory of property is really presupposed from the or at least it is presupposed that this theory must be beginning, developed as a part of the derivation of the minimal state. Nevertheless,

I shall follow Nozick’s lead, and ignore the entitle-

ment theory in this analysis of the arguments for a de jure legitimate state. Before we subject Nozick’s argument to analysis and criticism, there are several questions of a general sort that might be worth raising about the logical status of that argument, and its precise

80

Robert Paul Wolff

purpose. One might imagine, from the way Nozick talks, that the argument is intended as a straightforward deduction, or derivation,

from a set of assumed premises taken over from moral philosophy. However, so much of the argument depends, at crucial points, on specific interpretations and elaborations of that moral theory, with little or no proof of the interpretations adduced, that after a while it seems that Nozick is providing us with nothing more than a reconstruction or systematization of a set of moral intuitions. Roughly speaking, we might say that his argument is a rational reconstruction of a libertarian moral consciousness. If I disagree with one of Nozick’s claims about morality, for example with regard to when, where, to whom, and to what extent I am obligated to pay compensation, what sorts of arguments would he consider it relevant for me to offer? I confess that I cannot tell. Nozick talks repeatedly of developing a “theory” of this or a “theory” of that. Does he mean a rational reconstruction of our moral intuitions? Whose intuitions? Does he mean, rather, a derivation of normative principles from a set of premises? In this regard, his opening methodological remarks about types of explanation are seriously misleading. Nozick’s task is to show that under certain circumstances, a state of a certain sort can be justified, not that it, or

its appearance, can be explained. For this purpose, fact-, law-, and process-defects are irrelevant. Finally, it should be noted that despite the contrary impression created by some of his language, Nozick is attempting to show that a de jure legitimate minimal state could come into existence by a series of morally permissible steps, not that it would come into existence under any particular set of social circumstances. In short, the purpose of Part I of Anarchy, State, and Utopia is to establish the possibility of a de jure legitimate state. Let us turn now to an examination of Nozick’s argument for that claim. AN INTERNAL

CRITIQUE

OF THE

ARGUMENT

The first difficulty we encounter when we examine Part I is that Nozick, by his own admission, has not proved what he set out to prove, even if his argument is sound. The “state-like entity” whose generation by morally permissible or morally obligatory steps Nozick sketches is not, in his own words, the “sole authorizer of

The Derivation of the Minimal State

violence.”!° It nonclients, but possesses. This nonclients from

81

has a right to interfere in disputes between two no special right beyond that which any person entity has no right to stop one or another of those forcibly but rightfully exacting compensation from

the other nonclient for a wrong suffered. In other words, Nozick’s

“state-like entity” has no right to prevent nonclients from taking the moral law into their own hands in their dealings with other nonclients. Nozick deprecates the importance of this inferential shortfall, quoting at length from an anthropological account of the state to support his claim that the state-like entity is near to a full-fledged state.!! Now, for the pure theory of the state, the gap between state and state-like entity is exceedingly important. One might as plausibly respond to Kenneth Arrow’s General Possibility Theorem,!? as an acquaintance of mine once did, by pointing out that majority rule only rarely produces an inconsistent social preference order! Leaving pure theory to one side, the significance of the limitations on Nozick’s “state” will depend on certain matters of fact about which he is silent. His language encourages us to imagine a society in which no more than a handful of individuals choose not to sign up with the dominant protective association. But suppose as many as a sixth or a fifth of the residents of a territory are nonclients. Suppose, further, that they are geographically scattered and not easily identifiable by dress, manner,

or occupation.1? How will the min-

ions of the state-like entity be able to tell who is and who is not a client, as they walk street patrol or rush into a barroom to break up a brawl? Will the state-like entity be forced to conclude that, for all practical purposes, it must claim to be the sole authorizer of violence (with due compensations paid, of course)? Will the state-like entity claim for its employees—its private police—special rights in their role as representatives of the total clientele of the association, over and above their rights as individuals? Will the state require its employees to be clients as well? (Premiums could be conveniently withheld from one’s paycheck.) If a nonclient resists a private policeman who mistakenly interferes in what he thought was a fight between clients, will the issue between him and the nonclient be an issue between two individuals, or an issue between an individual and the state-like protective association as represented by its agent, the private policeman? If n individuals

82

Robert Paul Wolff

can, through n acts of contractual agreement, transfer their individual rights to a single protective association, can that association, by a single contractual agreement, transfer those aggregated rights to its agent, the policeman? If so—and Nozick can hardly say no—then will that policeman, in his personal on-duty encounters with others, whether clients or nonclients, have rights quite differ-

ent from those possessed by the individuals he encounters? Also will that effectively deprive ordinary nonclients of their rights vis-a-vis the policemen? In short, Nozick’s argument will not do as a justification of the state. The plain fact is that states claim de jure legitimacy, and it is such claims, not assemblages or aggregations of transferred individual rights, that ground the further claims made by the state on behalf of its agents, its policemen, its courts, and its executioners.

The second difficulty with Nozick’s argument is that it does not, in its own terms, establish its intended conclusion. Since he begins from the libertarian side of the debate, Nozick feels very little need to argue the claim that a dominant protective association can legitimately come into existence without violating anyone’s rights. For him, as for all libertarians, the real problem is how to show that

the protective association has a right (or indeed, a duty) to tax its clients in order to “redistribute” income to those who cannot or will not buy protection contracts and thereby become clients. In short, for Nozick the real nub of the issue is: What obligation have the rich to buy protection for the poor? His answer—and the linchpin of the entire construction—is the principle of compensation. The sequence of Nozick’s exposition of the principle, somewhat obscured by his tendency to follow up interesting side-issues, is as follows:

a. After sketching the notion of an area in moral space around an individual that contains his rights, Nozick asks: “Are others forbidden to perform actions that transgress the boundary or encroach upon the circumscribed area, or are they permitted to perform such actions provided that they compensate the person whose boundary 4 has been crossed?” b. A principle of compensation is suggested: “[T]hose who are disadvantaged by being forbidden to do actions that only might harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others.”15

The Derivation of the Minimal State

83

c. The principle is reiterated with a charmingly ingenuous acknowledgment of its shaky logical status.16 d. Finally, the principle of compensation is flatly invoked as the justification for “redistribution,” in the form of supplying protection for nonclients, which traditional libertarians decry as an invasion of

the rights of those taxed.!7 Three pages later, his argument is complete.1®

Nozick announces that

As this survey indicates, Nozick nowhere argues for his principle, but even if we grant it to him, we must still raise objections to his employment of it. The clients of the dominant protective association are obliged to compensate nonclients for their loss of the ability to enforce their rights against clients. But presumably, only the loss of the ability to enforce their rights properly need be compensated. The associated clients are under no obligation to compensate nonclients for the loss of their ability to enforce their rights improperly, or to enforce false rights claims.19 If Imay, I will employ a Nozick-style pair of examples: First, if some madman proposes to enforce his property rights by going out into the world, when he has suffered a robbery, and randomly torturing people to death until he obtains a believable confession, I am not required, should I stop him from doing so, to compensate him for depriving him of the method of rights-enforcement he has chosen; nor am I obliged to compensate a different madman, should I deprive him of the ability of enforce the absurd claim that he, as the first-born of God, has a right to all the movable goods in the human world. Thus, the clients of the dominant protective association are only obliged to compensate nonclients for depriving them of their ability to enforce their true rights properly against clients. By hypothesis, however, the protective agency employs methods that it considers proper, and only prohibits methods it considers improper. So from its point of view, no disadvantage has been suffered by the nonclients. Hence, again from its point of view, it has no obligation

that it can see to pay compensation, and consequently no right to tax its clients in order to pay for such compensation. If this suggests Catch-22 or Big Brother, I can only reply that it does indeed. Nozick’s dominant protective association looks very much like the traditional state, with the velvet glove of legitimacy removed from the iron fist of enforcement.

84

Robert Paul Wolff Let us examine the notion of compensation more closely, since

Nozick rests so much of his argument upon it. It will be seen that in this topic, many of the most important lines of his argument come together. Nozick starts with a very strong version of the classical liberal conception of the individual. This conception assumes a sharp and clear distinction between what is inner, internal, private, or one’s own, and what is outer, external, public, or someone else's.

Nozick captures this conception quite nicely in his metaphor of the “moral space” of each individual, circumscribed by “a line (or hyper-plane).”2° After introducing the image of a boundary of one’s moral space, he thereafter frequently refers to rights-violations as boundary-crossings. When speaking of actions that threaten to violate the rights of others, or that run the risk of violating the rights of others, he speaks of individuals who come dangerously close to the boundaries of others, and so forth. We are encouraged by such language to conjure up either of two images whenever Nozick speaks of actual or threatened rights-violations. The first is the image of the body. Its surface is the “boundary,” and an invasion of its surface is a violation of a person’s rights in his own person. It is in light of this image that we can understand the remark that political philosophy is primarily concerned with physical aggression. The second image is that of a piece of “real property,” of land, whose boundaries may be crossed only with the permission of the owner. Nozick’s examples as often suggest this image of “boundarycrossings.” There is a very considerable difference between the physical invasion of my body (or its forcible manipulation by others) and an act of trespass on my property. The frequent talk about “fear,” and so on, which we will attend to presently, makes sense only in respect to the threat of physical aggression. The examples of rights violations, however, are clearly couched in terms of the rights in real property. What is more, many violations of property rights cannot plausibly be understood either on the model of physical aggression or on the model of trespass. When I infringe your copyright, or steal your car from the public street in front of your house, I am neither invading your body space nor trespassing on your land. Speaking somewhat more abstractly, Nozick’s metaphor assumes that in moral space, my rights constitute, topologically, a compact

The Derivation of the Minimal State

85

closed set, the boundary of which is contained in the set. It follows

that there cannot be any points in my rights space entirely surrounded by points in your rights space, although—whatever this means—my rights space might be entirely surrounded by yours. As Marx says, each of us, in this liberal model, finds in each other the barrier, not the realization, of his liberty.21 But suppose that our

rights are not so neatly partitioned into compact subspaces of the moral space. Suppose, indeed, that in moving from right to right in the interior, and not just at the boundary, of my rights space, I must cross the rights of innumerable other persons. In that event, the notion of a boundary-crossing will dissolve. Nothing in Nozick’s discussion provides any support for his account of the structure of the moral space of individual rights. But this talk of moral topology has about it the air of a jeu d esprit. There are other problems with the account of disadvantage and compensation that cut more deeply into the heart of Nozick’s argument. The moral presuppositions of Anarchy, State, and Utopia, as we have observed, are radically individualist. They depend on a very sharp distinction between an inner sphere, where society in general and other persons in particular have not even a legitimate concern in general and other persons in particular have not even a legitimate concern and an outer or public arena of interpersonal interactions, in which alone the question of the claims of others against me can appropriately arise. Nozick, in the language and style of his argumentation, leans heavily on such notions as utility maximization, compensation payments, indifference curves, and the like, which presupposes the abandonment of that sharp public versus private distinction. The fear or anxiety I may

suffer, on account

of my anticipation

of a

possible violation of my rights, is fair game for an expected utility calculation. But a Locke-Mill theory of the private and the public would rule out such considerations as irrelevant to any moral deliberation concerning rights and duties. If Christian proselytizers set out, sincerely, to convert Jews to their faith, they may thereby generate anxiety in the Jewish community over the survival of Judaism. Would this anxiety count as a disadvantage to the remaining Jews, for which—with suitable adjustments and qualifications— they would have a right to be compensated? On Nozick’s view, the answer is presumably yes. However, neither. Locke, nor Mill, not

86

Robert Paul Wolff

any of the classic theorists of rights and border-crossings would agree. Ironically, Nozick has adopted a model that was developed as a theoretical elaboration of utilitarianism, and a moral theory antithetical to the intrusive paternalism of utilitarianism. In general, the argumentation of Part I assumes a situation of choice under risk rather than choice under either certainty or uncertainty. All the talk about increased and lowered probabilities, the explicit assumption of measurement of utility on an interval scale,22 and the calculations of expected utility, assume choice under risk. Now, in itself, this assumption need not be fatal; it is an

idealization of reality, and all theoretical analysis requires some such idealizations. However, there are at least three serious difficulties with this assumption in the context of Nozick’s argument. First, the underlying assumption of the derivation of the minimal state is that individuals, fearful for their lives and property, will band together into protective associations for security. Leaving to one side Nozick’s bizarre example of the arm-breaking machine, it is

clear that the fear that fuels the drive for security is a product of uncertainty,

not of risk. Even if we ignore the inner versus outer

problem raised above, and admit this fear into our moral calculus, we must recognize that it is a product precisely of situations which lack the structure required for the probability estimates and expected utility calculations on which the theory of compensation rests.

Second, as Hobbes and many others have noted, fearful, isolated, uncertain individuals in a state of nature band together precisely to achieve that security and predictibility that will, for the first time, make rational calculation possible.23 One might say, anachronistically and somewhat facetiously, that one of the purposes of a social contract is to transform situations of choice under uncertainty into situations of choice under risk. One of the arguments that can be advanced in support of a state-enforced system of laws—especially in the area of property law—is that it reduces uncertainty and thereby facilitates rationally self-interested economic activity. Such a formulation makes Nozick’s analysis of the formation, growth, and stabilization of a dominant protective association circular, for it assumes the prior existence of the very state of affairs it is supposed to produce. Finally—a point to which we shall return—the elaborate calcula-

The Derivation of the Minimal State

87

tions implied by Nozick’s theory of compensation presuppose an extremely advanced stage of social, economic, and political integration. To take a relatively simple example, consider the degree of bureaucratization of medicine that must come into being in order to generate usable statistics on the relationship between heart disease and air pollution. One cannot even raise the question of “compensating” someone for having inflicted on him an increased risk of heart disease unless one has data of this sort, and the collection of such data requires a very advanced stage of social integration. The invasion of privacy, de jure or de facto required by that stage of social integration, is precisely the evil that Nozick seeks to rule out. Merely in order to calculate what it owed in compensation to nonclients, the dominant protective association would have to do most of the snooping and prying and standardizing and regulating that is now carried on by the modern welfare state. The only difference between the two, so far as I can see, is that after inflicting itself on all of us, as the state now does, Nozick’s state-like entity

would be uncommonly niggardly when it came to distributing benefits. In short, Nozick’s real problem is that given his extremely strong theory of individual rights, side constraints, and so forth, he ought in all consistency to come to the conclusion that no unconsented-to boundary-crossings (i.e., rights violations) are permissible, regardless of compensation. But that is a crazy conclusion, as he realizes. If accepted, it would immobilize us all, making us much like a bizarre gathering of morally musclebound rights freaks, lovely to look at, but unable to lift a finger for fear of encroaching on one another's moral space.

So Nozick compromises.

Of course,

once he starts,

only his intuition, or the degree of his moral finickiness, tells him when and where to stop, and how much to pay in order to achieve

what a mathematically sophisticated Anglo-Saxon of the eighth century might have called a discounted wergelt raising the tribe to its previous indifference curve. Before concluding this first, internal, stage of my critique, I should like to raise an additional question, and also correct an error in Nozick’s one explicit use of Game Theory. The error is of no great importance to his argument, but the question, I believe, goes to the very heart of his theory, and indicates one of the ways in which it is inadequate. To put the question as succinctly as possible, what price

88

Robert Paul Wolff

will a dominant protective association charge for its services? A protective association is merely a private individual or group of individuals who go into business to sell a service. When such associations first spring up, price is determined by market considerations. Once either oligopoly or monopoly develops, however, the dominant protective association can raise the price. For obvious reasons, there will be rather severe inflexibilities restricting entry of new

firms into the market.

If Nozick is correct,

and a dominant

protective association emerges with a de facto monopoly, the price will soar. The owners will charge as much as the market can bear, which will, in the nature of their service, be a good deal. What is more, like other monopolistic firms, the dominant protective association will not maximize output, which is to say that its maximum

profit will probably result from a rather lower level of social stability and security than it could provide or than its customers would like. The customary laissez-faire safeguard against the dangers of monopoly is to assign to the minimal state the job of preserving the conditions of competition, but quite obviously it cannot perform such a function in this case! We may therefore conclude that the protective association, once it acquires a monopoly, ought to charge only the fair market price, not the monopoly price. However, there is no such thing as a fair market price for the service sold by the dominant protective association! There is not even such a thing as what the fair market price would be. There could not be a “market” for what the association sells, because what it sells is the guarantee of a monopoly. Since there are no substitutes for law and order, consumers cannot even set limits to the monopoly price by switching commodities. Needless to say, the owners of the dominant protective association, inasmuch as they are merely businessmen out for a profit, will not be restrained by any of the traditional, irrational constraints on the exercise of political power, such as patriotism, public spirit, or a concern for the general welfare. Finally, a few words about the payoff matrices, and accompanying analysis.24 The hypothetical matrix is wrong, and the dominance arguments based on it do not go through. The problem lies in the

figures postulated for payoffs DA’, DB’, D'A, and D'B. proposes the following matrix:

Nozick

The Derivation of the Minimal State

89

Matrix IT

Person II

A Person I D\

A’

B'

Gr

iDh

easy

4,6

10, 0

10, 0

6, 4

5, 5

10, 0

10, 0

0, 10

0, 10

Kix

Bo 69

0, 10

0, 10

Peo

ae

This matrix is wrong. An effort to block one’s opponent from joining any protective association must have some

nonzero

probability of

success, p. If it succeeds, and if one does not oneself attempt a protective association, then the outcome (ignoring costs effort) will be a mutual state of nature. Hence the true payoff including the expected utility calculations thus generated,

to join of the matrix, should

be:?5 Matrix IT’ Person II

AC

B'

A

5.5 >

456

10 On Ee)

B

Ga

ais

10s08 4ee

0, 10

O10

FO 90

eG

PR,

Cas

ink

>

PersonI

D

P%s

(px+(1—p)10)

>

>

(px+(1—p)10)

Cc >

>

D' p'x

p'x

Various assumptions about the values of x, p, and p’ will yield matrices with differing solutions. Consider, very briefly, the following three cases, concocted entirely out of imagination: i, Letx = 9 p =.l p'=.8

90

Robert Paul Wolff

In other words, the state of nature is really quite pleasant, individual I has very little chance of stopping individual IT from joining a protective association, but II has a very good chance of stopping I. If one substitutes the numbers into Matrix I’ and computes the values, it is found that strategy B dominates for I. II,

recognizing this, chooses strategy D'. The payoff is (9.2, 7.2), and the strategy pair is that I attempts to join a protective association, while II does not, but II attempts to stop I from joining. ii. Letx p p' The state

= 8 =.9 = .2 of nature is a trifle less attractive. I has a very good

chance of blocking I, while II has a slender chance of blocking I. Under these assumptions, I has no dominant strategy. II's dominant strategy is B’. I, recognizing this, chooses D. The payoffis (7.2, 8.2), and the strategy pair is that II attempts to join a protective association while I tries to stop him. iii. Letx = 6 p=.4 p'=.7

The state of nature is not so hot. I has a fair chance of stopping I, and II has a good chance of stopping I. I’s dominant strategy is B; II's dominant strategy is B’; the outcome is (5.5), and the strategy pair is that each attempts to join and attempts to prevent the other from joining a protective association. This is a “prisoners dilemma,” since any of the state of nature outcomes is mutually preferable. However, all of this is utterly irrelevant to questions of serious political philosophy! It is also very odd-sounding to anyone who has been brought up, theoretically speaking, on the great traditions of Western political writing. In the last section of this Article, I shall try to come to terms with the deeper meaning of that oddness. Now let us turn to some

considerations

of greater moment.

In the next

section of my discussion, I shall stand off a bit from the detail of Nozick’s argument, and raise objections to certain of the assumptions that seem to underlie his approach to political philosophy.2® AN EXTERNAL

CRITIQUE

OF THE

ARGUMENT

Perhaps the most irritating weakness of Nozick’s book is its complete failure to take account of the most obvious and well-known

The Derivation of the Minimal State

91

facts of human motivation and social experience. For example, much of his discussion of the workings of a protective association seems to presuppose that the serious rights-violations against which one needs protection, are committed, by and large, by the sorts of

solid citizens who will have joined a competing association, will be paid up on their premiums, and will have known addresses where they can be found. This may indeed be so in a small, rural society—one in which everyone knows everyone else, and in which an act of barn-burning or cattle-rustling can pretty certainly be laid at the door of those no-account Finkelstein brothers. But in the context of big-city street crime, Nozick’s model is simply irrelevant. To put the point more generally, Nozick presupposes a society so settled, so orderly, that one might never protective association at all, let alone a state!

feel the need

for a

Nozick seems to me equally insensitive to the psychological, social, and institutional problems involved in creating and staffing a responsible, controllable police force, whether “public” or “private.” The problem begins as soon as one introduces the notion of an agent. An agent is a private individual who adopts a social role. As an occupant of that role, he has rights, powers, responsibilities, and duties which he would not have were he not occupying the role, and which he puts aside when he steps out of the role. Thence—given the limits of the power of reason—comes the function of uniforms, titles, oaths of office, and similar accoutrement. They serve both to

inform others of the role one is playing and to strengthen one’s identification with the role. From this follows also the importance of internalizing the norms associated with a role, as opposed merely to making the appropriate adjustments in one’s expected utility calculations. Nozick knows all of this, of course. He simply ignores it in the construction of his model of the rational individual and his analysis of the moral relationships between individuals. Perhaps we can develop the philosophical underpinnings of these observations more systematically by examining the protective association on which Nozick erects his justification of the state. Following the standard libertarian account, Nozick represents such associations as companies that offer a service in the market, advertise for

customers, promote sales by such devices as 13 weeks free protection with a 2-year subscription,

money-back

forth. As he repeatedly insists,

these companies

guarantees,

and so

are groups of

92

Robert Paul Wolff

individuals, and they have only individual rights and aggregates of individual rights which they, as individuals, exercise either directly or through their agents. There are no emergent rights, attaching only to corporate bodies and incapable of being decomposed into component individual rights. The possibility of a protective association (that is to say, of a morally legitimate protective association) rests on four supposed moral facts, asserted (but not shown) to be facts by Nozick: 1. Each person in the state of nature has the right to enforce his (other) rights in a morally proper manner, and to exact suitable compensation in an appropriate manner from those who have violated his rights. 2. Each person has the right—suitably hedged around—to punish rights violations against third parties. 3. Several persons may, through free and mutual agreement, do collectively in the way of rights enforcement and infraction punishment.whatever they may do severally and singly. 4. An individual, and hence a group of individuals, may assign the tasks of enforcement, punishment, and so forth, to other persons as their agents (perhaps, but not necessarily, as their employees). These agents will act not in their own right as persons, but in their role as the authorized representatives of others. Rights are transferable in such manner that one person might, through a number of such transfers, come to be the bearer of many rights, just as one representative might bear many proxies in a committee election, or one lawyer represent the property interests of many clients in a Sule." The operative assumption is clearly assumption 4, which underlies the moral legitimacy of protective associations as opposed to mere mutual aid societies. Let us assume that I can assign my rights to an agent, hire him to represent me, to do in my name what I have a right to do but what he, merely as an individual, might not have the right to do. Even granting all that, it must be obvious that I would stand under an obligation to monitor the actions of my representative, to ascertain that he has done only what I have authorized him to do, and that only in permissible ways. This obligation follows from the fact that I have the same obligation when I act as my own agent. If my agent violates the rights of others, I as well as he can be held responsible.28

The Derivation of the Minimal State

93

Although it may be a relatively simple matter to monitor the behavior of my personal bodyguard, my personal lawyer, or the holder of my personal proxy, it very quickly becomes impossible in practice for me to exercise effective oversight as the protective association grows. Bureaucratic rationalization and institutionalization take over. It is not I who hire the association’s enforcers (or private policemen); bureaucrats in the association's employment office do. I merely write out a monthly check to pay the premium on my comprehensive insurance policy. Since the protective association is, we may suppose, a mutual benefit insurance company, I receive in the mail each year a notice of the annual shareholders’ meeting, together with a request from the management for my proxy. I have roughly the same sort of control over the actions taken by the protective association in my name as I do now over the actions of the telephone company—with one exception: Now, if I get mad enough at the telephone company, I can write to my Congressman and ask,that the government pass a law regulating the telephone company. In Nozick’s model, however, the dominant protective association is the government! As a device for guarante-

eing individual liberties and enforcing absolute side constraints, this is, to put it gently, a trifle feckless. Nozick, we must recall, is not an anarchist. His purpose is to prove that the just state is possible, not that it is impossible. Perhaps it not de facto tyranny to which he objects, only income redistribution. Therefore, we cannot defeat his argument merely by observing that it is an ideological rationalization for AT&T. Let us therefore take a closer look at assumption 4, with which we began this line of

analysis, and at the argument that depends upon it. The key to the assumption is the claim that person A can transfer a right in toto to person B. In Nozick’s view, the full right passes, by means of a contractual agreement. (His theory of justice in transfers, which is part of his theory of entitlement, is merely a special case of this general claim.) Hence the entrepreneurs who own the protective association accumulate a stack of rights from their clients. They can in turn transfer those rights, in aggregation, to employees of the firm who walk the streets, staff the jails, ran the courts, and collect the fines, all of them living bearers of those aggregated rights. If total transfers of that sort are in fact permissible and possible, then Nozick might be able to carry his argument through (leaving to one side such objections as have already been raised earlier in this

94

Robert Paul Wolff

article). However, Nozick is guilty here of an error that we might label “the fallacy of the transitivity of rights transfers.” It bears a resemblance to the notion that indifference is transitive, although

not too much weight can be placed on that comparison. When an individual is called upon to order a set of elements by means of the relation “preferred or indifferent to,” he may judge himself to be indifferent between x and y, and indifferent between x and w. This would be explained by the fact that the differences between the members of each pair were too small to affect his preference judgments, too small to be noticed, whereas the aggregated differences, as revealed in the comparison of x with w, might exceed his threshold of indifference. By analogy, in a simple rights transfer, as when I hire a lawyer to close a real estate sale for me, there is a minute slippage or blockage in the rights transfer, due to the fact that my agent is also an independent human being. Because he is a person as well as an agent, there is a small but nonzero probability that he will exceed his authority, or get his instructions confused, or interpret a situation in a manner that I would not approve. There is also a nonzero probability that I will be unaware of the breakdown of agency, or will be unable to rectify it. Because Nozick focuses his attention on simple rights-transfers, where the probability of slippage falls below the minimal threshold of moral awareness, he fails to see that as the protective association grows, as the rights collected are transferred and retransferred, as my relationship to my so-called agent grows ever more attenuated, I will become less and less able to see my own will, my own moral agency, in the actions of the association’s owners and employees. As the imperfection of the transfer magnifies, my right to consider the transfer as having taken place diminishes. Eventually, I must recognize that for all practical moral purposes, I cannot exercise the oversight that is a necessary component of any permissible rights-transfer. I must therefore withdraw my authorization from the association. The net result is an unstable fluctuation in the size of the clienteles of the protective associations, with the mean size oscillating between limits the higher of which is no where near large enough to permit even a momentary pretense of dominance. Obviously, this point could be expanded upon at great length, but inasmuch as others have done so,?® there is no need to elaborate on the subject here. Suffice it to say that Nozick appears to have no

The Derivation of the Minimal State

95

appreciation of the staggering problems of controlling a protective association, or monitoring those actually entrusted with the tasks of enforcement.

Since he must assume some level of rights violation,

and hence some tendency of individuals to commit such violations, in order to get his argument going (otherwise, who needs a state?), he cannot pass this off as a practical detail from which his model abstracts. The real problem—indeed, the underlying problem with all of Anarchy, State, and Utopia—is Nozick’s persistent failure to take account of the nature of social reality. Nozick’s models, methods,

and arguments all treat social relationships as transparent rather than as opaque. He portrays social interactions as marginal to the existence, integrity, and coherent identity of the individuals who participate in them, rather than as central and constitutive. It follows that he can have no usable notions of false consciousness, of self-deception, of alienation, and of the objectification of subjective categories. The démystification of social reality, which ought to be set as a major task for social theory and social practice, is simply assumed by Nozick as a given presupposition of his analysis.*° Nozick frequently assumes, for purposes of assessment ofliability and payment of compensation, a degree of transparency of social relationships sufficient to permit plausible and usable ascriptions of responsibility,

disadvantage,

gain, or loss, to specific, identifiable

individuals. When I speak of “the transparency of social relationships,” I mean the possibility of tracing out at some length the filiations,

the links in a chain

of causes

and effects,

before

the

complex interconnections are obscured by the mist of social surfaces. To get some sense of what such a tracing out might mean, one can contrast a title search for a piece of land, which is carried out through ten or fifteen changes of ownership over more than a century, with the attempt—almost sure to be frustrated after two or three points of exchange—to trace back the lineage of a quantum of money as it is exchanged for a commodity, divided and exchanged again for several commodities, combined with other monies and exchanged once more for a service, and so forth.

Even a little reflection will reveal how problematic such ascriptions of disadvantage or responsibility are in a society like ours. Any intelligent and thoughtful person is perpetually troubled both by the legal attributions of specific liability to persons whose role in some rights-infringement seems a social accident, and by the con-

96

Robert Paul Wolff

sequent dilution of the notion of individual responsibility, with the inevitable conclusion that no one in our society ever does anything, and that some nonbeing called “society” bears all the blame. Nozick excuses himself from the burden of this contradiction by simply denying one-half of it and doggedly asserting the other half. For example, in order to distinguish a legitimate protective association from a protection racket, Nozick invokes the distinction between

productive and unproductive exchange.*! The distinction, however, as he elaborates it, is internally contradictory. It requires that we be able to trace out the effects, actual or possible,

of one

person's

actions on others. This, in turn, presupposes a level of knowledge possible only at a very advanced stage of socioeconomic integration. However, as Nozick acknowledges in his discussion of property rights and the theory of entitlement, once we have reached that advanced level of socioeconomic development, no one any longer is in a position to assert, with confidence, the sorts of property rights on which the theory of productive exchange relies. Somewhat more generally, the degree of development of social interdependence and economic integration necessary to provide the institutional base for the sorts of calculations Nozick posits is so great as to undermine the privateness of property rights. This is especially evident in the lengthy aside on pollution. Nozick treats pollution as marginal to the operations of a modern industrial economy (although not therefore unimportant, of course). More precisely, he treats external economies and diseconomies as marginal to the operations of firms or of individuals. But “pollution,” taken broadly, is a metaphor for modern society! That is what Marx meant by the socialization of production. It is an odd historical fact that Nozick’s principal methodological tool—the concepts and models of game theory—came on the intellectual scene at a time when it was peculiarly inappropriate to social reality. Historically, classical economic theory emerged at a time when economic relationships were still relatively more transparent than they are today. Nevertheless, the theory assumed a total opacity of economic relationships. It posited a system of producers and consumers in which the size of the contribution of each firm, consumer, or worker to the market was vanishingly small. This

permitted the theory to treat wages, prices, and the various other indices of economic life as given objective facts, to which the

The Derivation of the Minimal State

97

individual or firm adjusted on the basis of a calculation of relative advantage. As the theory developed, it took account of the facts of oligopoly and monopoly in its formal models. In short, it acknowledged, and made theoretical room for, the fact that individual firms

might be able to calculate the effects of their actions on supply or demand curves. But the calculations still assumed an opaque social fabric. The identities and characters of the other economic actors were obscured from view. During the forties, when advanced industrial society had achieved so high a degree of functional integration that individual robber-barons had given way to anonymous board chairmen, and family firms had given way to multinational corporations, along came a new, mathematically sophisticated model of economic analysis—game theory. For the first time an economic theory took formal account of the existence, identity, values, and reasoning processes of the other economic actors whose rationally chosen policies, in ongoing interplay with one’s own, produced those price levels, wage levels, and supply and demand curves that conventional economic theory had initially treated as given.

Nozick’s extensive use of the game-theoretic model of rational choice is systematically inappropriate to his subject. He assumes throughout that the formal criteria of rational decision can be abstracted from the concrete social reality which is their matter or content, as when he rather irrelevantly brushes aside a century and a half of sustained criticism of the classical and neo-classical rationalization for industrial capitalist wealth with a fantasy about Wilt Chamberlain.#* As we have seen, the Nozick model implicitly makes assumptions—risk rather than uncertainty, transparency

rather than opacity—that presuppose specific stages of socioeconomic development. The net effect is to beg most of the important questions of social philosophy in a manner that provides ideological comfort for policies and doctrines which have never been established by argument. ON THE

WEIRDNESS

OF ANARCHY,

STATE,

AND

UTOPIA

In recent years, a number of philosophers, political scientists, and

economists have adopted the style of language and mode of analysis

98

Robert Paul Wolff

that one finds in Anarchy, State, and Utopia. The rhetoric of game theory, if I may characterize it in that way, first appeared in the late fifties and early sixties in discussions of nuclear deterrence theory. I have in mind such books as Schelling’s The Strategy of Conflict,** which was probably the most distinguished intellectual contribution to that debate. More recently, it has appeared in the writings of such theorists as James Buchanen and Gordon Tullock,*° and—in a rather subdued manner—in John Rawls’ work. When I read books of this sort, I have two initial reactions. The first is that they are clever, witty, iconoclastic, that they look at old questions in remark-

able new ways. The second is that they are creepy, that there is something fundamentally awry in the language and reasoning of the work. When I read Anarchy, State, and Utopia, I have both of these

reactions. The first is easy to explain; Nozick is easily the brightest, most imaginative, most ebullient political philosopher to appear on the American philosophical scene for some time. The second reaction, however, is somewhat more difficult to explain, and it is only

after some considerable reflection that I think I am able to get at its roots. In this last section of my discussion, I shall try to account for the curious impact of Nozick’s style of political argument on myself and, I suspect, on other readers as well.

The growth of capitalism transformed certain spheres of human activity—the productive, the economic—by rationalizing them (in Max Weber's sense of that term). It came to be accepted, even praiseworthy, to apply rational principles of cost, profit, and benefit, to activities that had previously been dominated by customary, religious, or other norms. But broad though the scope of the economic is in social life, there remained a great deal of life that was very much less considerably affected by the change, notably religion, politics, family life, and personal relationships. Utility theory, game theory, and their associated models of rational choice, seek to extend the methods of calculation, the presuppositions and rhetoric of rationalized economic activity into spheres of life hitherto shaped or governed by quite different sorts of considerations. One can make a joke of this move, as when one asks whether love is a zero-sum game, a bargaining game, or a game of perfect coordination. One can use the rhetoric and methodology for covertly ideological purposes, as the deterrence theorists did in

The Derivation of the Minimal State the late fifties.87 One

can

also seriously undertake

99 to explore

political and moral life with these models, as Nozick does. However

one deploys the models, the sense of surprise comes from the incongruity of applying a terminology drawn from one field to phenomena usually considered in an entirely different field. Anthropologists achieve this surprise when they apply a terminology that we associate with primitive societies to the urban life of an advanced industrial society. Nozick continually employs this rhetorical trick. He will consider, for example, forcibly restraining someone from defending his own interests according to his own view of them and paying him off for thus restraining him. Nozick describes this as compensating him sufficiently to raise him to his previous indifference curve,#° a form of speech that we expect to find in a formal treatment of problems in welfare economics. The notion of an indifference curve presupposes the rationalization of a sphere of human experience. It presupposes that notions such as homogeneity, continuity, and substitutivity can find plausible application. What makes talk of this sort creepy (if I may repeat my rather unphilosophical word) is the assumption thereby insinuated that a hitherto uninvaded sphere of human activity should be similarly rationalized—and thus made ready for the extension into it of these models and methods. Now perhaps we can see why Nozick’s book is so strange. Nozick’s decision to write about questions of morals and politics in the manner he does constitutes a covert proposal to transform into quasi-market-rationalized form important areas of human experience that have until now not been so treated. Such a proposal is inhuman; that is to say, it is a proposal to dehumanize much of our experience. To see that this is so, one need only reflect on the effect of such rationalization on the world of production and exchange. Nozick may reply that I take too simple-minded a view of the matter, that I impute to him a vision of amechanized, computerized

life that bears no relation to his discussion. Just as there is room in economic calculations, he might point out, for some workers’ preference for leisure over higher wages, or for a consumer's “noneconomic” pleasure in doing business where he is personally known, so there is room in Anarchy, State, and Utopia for obsessive fears of bodily harm, for soul-deep commitments to home and

100

Robert Paul Wolff

family, or for dogmatic religious convictions (all of which might, on some inadequate construal of the term, be stigmatized as “irrational”). However, such a reply would be too quick, and fundamentally wrong, in my judgment. The methodology infects the reasoning. The root problem is not at all that the method is too precise for the data (as Aristotle might have objected), but quite the reverse. If Nozick’s inferences were tight, then we would be obliged to live with them, no matter how counterintuitive his conclusions

might

be. But of course we are not presented with inferences at all. We are offered a flood of rapidly sketched situations—scenarios—in which there are either no actual figures cited or in which the figures are “for illustration only.” The real burden of the argument is not on the reasonings themselves (for without more elaborate sophistication or more stringent simplification, we could never judge their validity), but on the plausibility of looking at matters in the manner implied by the language and methodology. Nothing is ever said to suggest a reason for accepting that new and peculiar way of looking at things. Consider simply the notion of compensating someone for a “boundary-crossing.” Some compensation involves, among other things, paying him for the indignity of the infraction. Now, it is one thing to pay a man damages for an affront to his honor. It is quite another to say that his honor has a price—that the payment, in fact, has determined the market price of his honor! Indeed, once it has

been established that a person’s honor has a price, he may plausibly be said to have lost his honor, in which case its market value is nil. CONCLUSION

Despite its brilliance, its imaginativeness, and its sheer air of intellectual high spirits, Nozick’s book cannot, in my opinion, be judged a success. Its central argument will not stand up, although it shares that failing with most of the truly distinguished works in the corpus of Western political theory. More seriously, its treatment of politics abstracts from the essential character of social life, and thereby merely fails to come to terms with the most complex and intractable problems of political theory and practice. Most seriously of all, its language and methodology encourage us to treat as already rationalized those spheres of human experience that have not yet

The Derivation of the Minimal State

101

been subordinated to the dehumanization of quasi-economic rationalization, and that ought to be protected at all cost from such subordination. NOTES

1. R. Nozick, Anarchy, State, and Utopia (1974). 2. Id. at 9; see J. Locke, Two Treatises of Government 309-23 (Laslett

ed. 1963) (Second Treatise). R. Nozick, supra note 1, at 32. . Id. at 10-11. Moral intuition appears to be the guide here. pidsatl2—15,

Id. Sidvat 15-22, wDWARDMA A midsatoA—25:

9. I cannot resist calling attention to one rather curious historicological point concerning Nozick’s theory of property, however, particularly since it reinforces the general conclusion of this Article. Nozick presents a recursive theory of entitlement, according to which repeated acts of just acquisition or transfer of property necessarily result in a just set of individual holdings, regardless of its pattern. Although Nozick never enunciates a principle of justice in acquisition (a fatal flaw, one might have thought, in a recursive theory), and explicitly rejects Locke's attempt to ground just acquisition in the notion of mixing one’s labor with a bit of unheld property, he does invoke, as an essential element ofhis “theory,” a well-known qualification in the chapter on property in the Second Treatise that Nozick labels “the Lockean Proviso.” The passage reads: “Whatsoever, then [man] removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. . . . For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.”

J. Locke, supra note 2, at 329 (emphasis added). The italicised words are the “Proviso.” Nozick construes this as claiming that property is initially private and individual, so that society, or the state, can assert no claim to

the holdings of an individual that he does not freely warrant—so Proviso has been satisfied. But a careful look at the remainder discussion of property makes it clear that his view is the very Nozick’s! According to Locke, God acquires title to the universe

long as the of Locke's opposite of by creating

102

Robert Paul Wolff

it. Since he creates it ex nihilo, its entire value is value added—there being no raw materials. He pays nothing to primary producers, and since by that creative act He also creates the space which the universe occupies, he need not even pay rent. God, out of His infinite Goodness, then gives (i.e., in Nozick’s terms, transfers) the earth to mankind in common. At the same time, He lays down the conditions under which an individual may rightfully remove a piece of property from the common holding, and appropriate it for himself. If we secularize this theory, it is not difficult to see that it is really based on the supposition that property is originally social or collective, and that individual rights to property are granted by—and hence can be limited or taken away by—society. The opposite view, that property is originally individual, is completely contrary to Locke’s orientation, and also, to the facts of history and society. When Nozick points out, in his attack on Rawls, that commodities come into the world already loaded down with individual entitlements, he forgets that by his own theory, such entitlements arise in the first instance only from just acts of transfer (or labor-power and the other factors of production), and hence presuppose some adequate grounding in just acts of acquisition. 10. R. Nozick, supra note 1, at 117.

11. Id. at 116-17, quoting L. Krader, Formation

(1968).

of the State 21-22

12. See K. Arrow, Social Choice and Individual Values (2d ed. 1963). 13. They are, we miay imagine, all that remains of the great anarchist movement that overthrew the more than minimal state and created the conditions out of which the dominant protective association emerged. 14. R. Nozick, supra note 1, at 57. oy Wiel Sis Vey 16) Td-at'87,

17. See id. at 110-11. The phrase “[a]ccording to our principle of compensation given in Chapter 4,” id. at 110, makes it clear that by this point in the text, Nozick is taking the principle as having been established, not merely suggested. See id. at 115. 182 Id, at 114:

19. Since Nozick seems to interpret his own principles ad hoc, to suit his

argumentative purposes, I am at a disadvantage in attempting to determine

what inferences can and cannot be drawn from them, a disadvantage for which, presumably, I ought to be compensated by being held to a somewhat less stringent standard of proof. 20. R. Nozick, supra note 1, at 57. 21. See K. Marx, On the Jewish Question 163, in 3 K. Marx & F. Engels, Collected Works 146-74 (1975). 22. R. Nozick, supra note 1, at 58.

The Derivation of the Minimal State

103

23. See T. Hobbes, Leviathan 189-201 (MacPherson ed. 1968). 24.

R. Nozick, supra note 1, at 121-25.

25)

Where p = the probability that I will stop II from joining an association.

(1-p) p' (1-p') px + (1-p)0 = px px + (1-p)10

= the probability that II will succeed despite I's efforts. = the probability that II will stop I. = the probability that I will succeed despite II's efforts. = the expected value to I of the effort to stop II. = the expected value to II of an attempt to join an association in the face of I’s opposition. 26. For the purpose of organizing my remarks in this Article, I have distinguished in the titles of my sections between “internal” and “external” criticisms

of Anarchy,

State, and

Utopia.

The

distinction,

however,

is

scarcely fixed, and certainly not of any philosophical importance, so readers who do not find it intuitively clear are urged to ignore it. 27. To see the force of this assumption, we need only observe that even though A, in a state of nature, has a right to punish B’s violation of C’s rights, he may not have the same right that C does to punish B. C may have the right to use risker methods of defense or of compensation; he may have a right, that A does not have, to forgive B for the infraction, or to offer B

alternative modes of compensation. Should A become the agent of a protective association to which C has transferred his rights of retaliation and enforcement, however, he would then acquire in his role as C’s agent the rights that C, but not he, possessed in the state of nature.

28. This is a point on which Nozick’s mentor, Locke, lays heavy emphasis. See J. Locke, supra note 2, at 365-66. 29. For a brilliant exposition of this point, see Rousseau, The Social Contract 88-96 (Cranston ed. 1970). 30. IfI had been trained on the continent, in the dialectical mode, rather than in America by analytic philosophers, I might be tempted to suggest

that there is, in the history of modern social theory, a dialectical progression:

From the classical liberal assumption that social relationships are transparent, so that rational individuals already possess an adequate understanding of the true nature of society; which is the first thesis: To the conservative, irrationalist view that society is mysterious, nonrational, incomprehensible, so that human reason

To

cannot fathom it; which is the first antithesis: the higher claim that society is now opaque, mysterious, incomprehensible, but that reason can, by developing or perfecting itself, arrive finally at the realization that soci-

Robert Paul Wolff

104

ety is truly rational, and hence that social relationships can be grasped by reason; which is the first, or Hegelian, synthesis: From the Hegelian synthesis, which becomes the new, or second

thesis: To _ the utopian socialist doctrine that society is now irrational,

To

and must be changed immediately by action to make it conform to reason’s dictates; which is the second antithesis: the recognition that the achievement of collective, or social, rationality is a collective human project, requiring the union of thought and action, and requiring both a transformation of social institutions and a transformation of our thought about social institutions, each transformation both assisting and drawing assistance from the other; which is the final, or Marxian, synthesis.

31 . See R. Nozick, supra note 1, at 84-87. 32 . Id. at 79-81. 33 . R. Nozick, supra note 1, at 161-63. In the nineteenth century, apologists of capitalism, such as Nassau W. Senior, spoke the religious language of “abstinence.” See N. Senior, An Outline of the Science of Political Economy 58-59 (1836). “Outstanding athletic ability” is not much of an improvement as an explanation for the existence of massive accumulations of capital!

34. T. Schelling, The Strategy of Conflict (1960). 35. 36 . 37 . 38 .

J. Buchanen & G. Tullock, The Calculus of Consent (1962). See J. Rawls, A Theory of Justice 153-58 (1971). See, for example, H. Kahn, On Thermonuclear War (1960). R. Nozick, supra note 1, at 57.

III Rights: Opposing the Extensive State

pee

if

(6b 7

;

ce

ge

‘ban

_

‘etl

PElRy. pai

me

me

tly

Pe quert ——!

1) AAAS D @

~

Saw

°

me

ee

G

6

eh

necteagl S ~ ae

ee

mre @ PALLY Gow mae

Re

Gtis aaa

:

oy

\

emut :

se

6 Nozick on Rights, Liberty, and Property THOMAS

SCANLON*

In Anarchy, State and Utopia’ Robert Nozick approaches political philosophy within a framework which at first sight seems both familiar and congenial to contemporary liberal thought. It is a framework which emphasizes individual rights and the derivation of political obligation from consent. The conclusions of the book, however, are liberal in the nineteenth-century sense of the term. Nozick holds that the only legitimate state is the minimal state, whose activities are confined to the protection of individuals and their property and to the enforcement of contracts. This state is unique among social organizations in having the right to force residents to pay for its services whether or not they have consented to do so. Citizens may band together for whatever other purposes they may desire—to provide education, to aid the needy, to organize social insurance schemes—but such schemes must be purely voluntary, and the state must enforce anyone's right not to be compelled to contribute to them. Nozick reaches these conclusions by adhering as closely as possible to the idea that, in economic life as in politics, all valid obligations derive from consent. Of course, consent alone cannot be

theoretically basic. Something must determine the conditions under 107

108

Thomas Scanlon

which acquiescence counts as morally binding consent. In addition, the obligations and entitlements one person acquires through voluntary agreements can affect the alternatives open to others who have not been parties to these agreements. Something must determine when such side effects make an agreement void. In Nozick’s theory these conditions and limits are set by a skeletal framework of rights derived from Locke. The minimal role allowed to the state and the great scope left to voluntary agreement and consent in his theory are direct consequences of the particular character of these rights. This system of rights is not argued for directly in the book, however, and Nozick does not claim to have given these rights a foundation (p. 9). The impact of the book and the support it offers to Nozick’s view derive mainly from a series of challenging questions, engaging examples, and theoretical devices designed to make his conceptions of rights and justice intuitively appealing and to make alternative views appear untenable. I will therefore begin by considering a number of these examples, returning later to the framework of rights and its Lockean pedigree. The central theoretical device of the book is the classification of principles of justice as “historical,” “end-state,” and “patterned.” Nozick classifies a principle of justice as historical if that principle makes the justice of a distribution depend on how it came about (p. 153). It will follow from a historical principle of justice that “past circumstances or actions of people can create differential entitlements or differential deserts to things” (p. 155). By contrast, under what Nozick calls an end-state principle, the justice of a distribution will depend only on certain structural features of the situation it represents, for example, on the amount of utility produced or on the degree of equality obtaining. Of course, the structural features of a distribution that are deemed relevant by a principle of justice might make reference to historical events. A principle might require, for example, that people's holdings should be proportional to their moral worth as determined by their past actions. Such a principle is historical in Nozick’s sense, but it clearly has a great deal in common with end-state principles. Nozick calls such a principle, one which specifies that holdings are to “vary along with some natural dimension” or some combination of such dimensions, a patterned principle. Nozick’s own theory of justice is based on unpatterned historical principles. This theory is an entitlement conception of justice.

Rights, Liberty, and Property

109

Such a conception is specified by three components: a principle of (initial) acquisition, a principle of transfer, and a principle of rectification. Its central tenet is that any configuration of holdings that results from the legitimate transfer of legitimately acquired holdings is itself just. There is no reason to expect (or to require) that such holdings conform to any natural pattern. (The principle of rectification comes into play to explain how, if holdings are affected by violations of the principles of just acquisition and transfer, this situation is to be remedied.) Many theories of justice, almost any theory perhaps, will give some role to considerations of entitlement; that is, they will recognize some processes as conferring legitimacy on their outcomes. What is special about Nozick’s view is that it makes entitlement principles the beginning and end of distributive justice. While his principles are not described in detail, it appears that his theory differs from other pure entitlement conceptions chiefly in admitting fewer restrictions on the acquisition and exchange of property. He mentions only one such restriction, called “the Lockean Proviso,” which provides that any acquisition, transfer, or combination of transfers is void if it leaves third parties worse off then they were in the state of nature.2 Such a worsening might occur, for example, if someone were to buy, in simultaneous secret transactions, rights to all the available sources of water. This restriction could be substantial were it not for the fact that the baseline for its application is set by conditions in the state of nature. According to Nozick the productivity of the capitalist system in improving our material condition makes it unlikely that (in a competitive economy) anyone could acquire holdings that would leave others below this standard. Nozick clearly feels that the distinction between historical (unpatterned) principles of justice and patterned or end-state principles is of fundamental importance. He emphasizes that almost all of the principles of justice commonly offered are end-state or patterned principles and, as such, are clearly mistaken. If this were correct it would indeed be important. Certainly Nozick’s distinction does capture something intuitively appealing. It has often been said as a criticism of utilitarianism that it ignores morally significant relations resulting from past actions.? Nozick’s distinction is of great interest if it gives this criticism a more abstract form and shows it to apply not only to utilitarianism but also to Rawls’ theory and to virtually

110

Thomas Scanlon

every other theory commonly offered. But I do not think that the distinction has the importance claimed for it. To see why, let me consider the reasons Nozick offers for holding that all patterned principles are clearly wrong. These reasons can be quickly seen in Nozick’s frequent remark that, since gift giving can upset a pattern of distribution, supporters of patterned principles of justice would have to forbid this form of “loving behavior” (p. 167). More generally, let D1 be the distribution of goods obtaining in a given society and suppose that this distribution is in accord with our favorite pattern (for example, strict equality). This distribution can be changed into another distribution De, not in accord with this pattern, by any one of a variety of means: by gifts, by someone's starting a very successful business in his spare time using only resources to which he was already entitled under Di, or, as Nozick suggests, by all one million of us willingly paying Wilt Chamberlain 25¢ apiece for the privilege of watching him play basketball. To maintain D1 one would have to restrict these activities. Such “continuous interference” is, Nozick says, obviously unacceptable. Therefore one must conclude that no patterned conception of justice can be correct. One immediate response to this argument is to doubt whether anyone ever held a “patterned” conception of justice in the sense that is here refuted. A person who objects to the inequality in the world is unlikely to be concerned with those who have less as a result of their giving away or trading part of what was once an equal share. What offends an egalitarian primarily is the great inequality in the initial resources people have as a result of the social positions in to which they are born. But here Nozick can respond that this does not escape his point. Arbitrarily great inequalities in the starting places of members of one generation can result from gifts and voluntary exchanges by members of previous generations. Thus, maintaining even this looser kind of equality can require restricting these activities. So put, this is not such a startling conclusion; certainly it does not

make egalitarianism look as foolish as first appeared. This is so, first, because there is no longer the appearance of unanimous consent. It is no longer plausible to respond, “Well, if the fans are all happy to pay [everyone now living in the society is a fan] and Wilt is willing to play at that price, how can a meddling egalitarian object?” Second,

Rights, Liberty, and Property

o17

this way of looking at the example changes our picture of the liberties that are likely to be infringed. The liberties involved in the example seem to be these: the liberty of the fans to pay an extra quarter to see Wilt play, his liberty to keep any amount he may receive through such transactions, his liberty to decide whether or not he wants to play for the amount remaining after taxes from what the fans and promoters offer him, and, finally, the liberty of his heirs to keep any amount of money he wishes to pass on to them. It does not seem likely that egalitarians, if their objectives are as I have described them, will want to keep watch over everyone’s quarters or to conscript basketball stars. What is at issue, then, is the right of a

person to keep as much as others are willing to pay him for his services and the right of heirs to receive unlimited bequests. But there is no strong intuitive ground for thinking that these rights are absolute, and little ground for surprise at the suggestion that the pursuit of equality might call for their infringement. Nozick tries to make such measures seem more alarming to us by tying them to moré extreme forms of intervention. Thus he says that “Taxation of earnings from labor is on a par with forced labor’ (p. 169), and elsewhere he asks why, if we are going to set a limit on how long a person can control goods and transfer them to others, we do not have immediate confiscation (p. 163). But there seems to be no reason to disregard such obvious differences in the degree of regulation of a person’s life. It may be true, as Nozick claims, that there is a continuum of interferences extending from taxation to forced labor, each foreclosing a few more options than the preceeding. But the fact that there is such a continuum is no reason why we must be indifferent between any two points along it. Even if Nozick does not convince us that restrictions on earnings or inheritance in

order to maintain equality are unacceptable, however, his examples do raise the question why any interference at all should be justified in order to preserve a pattern. As he says, what is so great about a pattern? There are many different concerns which lead people to call for greater equality, and not all of these involve a pattern in a fundamental way. For example, a person’s primary political goal may be to alleviate the terrible conditions under which many are forced to live. The fact that others are at the same time much better off shows that it would be possible to eliminate this suffering and, one might

hb

Thomas Scanlon

add, to do so without reducing anyone else to this low a level. The

resources are there; they just need to be redistributed. For a person taking this position, a humanitarian, equalization is merely a means to the improvement of the lot of those currently worst off. It is possible that a person who is intensely concerned with this cause today might be quite satisfied if the living standard of everyone in the world were significantly improved, even if the gap between rich and poor was left unchanged. A second position would take pattern more seriously but still assign it a purely instrumental role. A person taking this position is concerned by the fact that where there are great differences between rich and poor, especially where wealth is concentrated in a few hands, the wealthy come to have an unacceptable degree of control over what jobs there are, over what is to be produced and

over political processes as well. For this reason, the growth of inequality can turn acceptable institutions into unacceptable ones even when this inequality is generated through what otherwise appear to be innocent means. These considerations seem to me powerful where they apply, but they argue only for the elimination of the more extreme forms of inequality. A more rigorously egalitarian position might hold that even where neither of the preceding evils arises (no one is in want, and there is no threat of domination),

inequalities are still objectionable because they are incompatible with healthy social relations and the development of genuine community. Putting the matter in terms of the pursuit of a social ideal seems to rob the demand for equality of some ofits force. It needs to be explained why this particular ideal is morally important. This explanation might be sought in a fourth egalitarian position. A person holding this position would object to inequalities in life-prospects flowing from differences in family wealth by arguing that all differences in treatment require justification, and these differences are undeserved and arbitrary. It is worth noting that Nozick, while being generally hard on egalitarian claims, allows that the demand for a justification of inequalities in initial resources would be valid if these were the result of some centralized mechanism of distribution (p. 223). He rejects this demand on the ground that such inequalities do not result from “state action” but instead flow from the independent actions of many individuals all

Rights, Liberty, and Property

118

acting within their rights. The results of such a process, he claims, need no independent justification. I shall return to this point later. A supporter of this fourth position needs to say something about why unequal distributions, and not equal ones, require special justification.4 One reason might be that we recognize it is a distinct kind of bad thing for a person to be made worse off than others in his society are. The evil in question here is essentially comparative. It is not just that it is a bad thing to be at a low level of well-being, nor is it just that anyone would prefer to be at a certain higher level (the one where, as it happens, others are). What is bad is being at a lower level when others around are much better off. (It is worst when the level others have attained is the norm in your society.) If this kind of relative disadvantage is a bad thing, then institutions which inflict it on people require a defense. Such a defense can be given. The better circumstances of others may be somehow earned, or it may be impossible to eliminate such differences or too expensive in terms of other benefits to do so. What is special about equal distributions is just that they require no defense of this particular kind. If the evil of being relatively disadvantaged justifies eliminating inequalities by redistribution, however, it may be asked whether it does not provide an equally strong reason for simply worsening the position of the better off when redistribution is not possible. This may sound irrational, but in the case of many social inequalities, for example, distinctions of rank or social caste, egalitarian demands for

the elimination of nonredistributable advantages are not implausible. In other cases, where we think that nonredistributable advantages should not be eliminated, this is not because these advantages

are consistent with pure egalitarianism but because we temper the demands of equality with other considerations.> Equality is not our only concern. Similarly, it is open to the supporters of any of these egalitarian positions to recognize that powers to dispose of one’s possessions—to give them away, to exchange them for others, to determine what will happen to them after one’s death—are very important. Indeed in speaking of “distribution” they have always assumed that to distribute a good to a person is to give him some powers of this kind over it. Nozick’s examples show that the

114

Thomas Scanlon

interests served by these powers are among those things which must be weighed against the various considerations supporting equality. This is something that a realistic egalitarian can accept. Certainly a theory cannot talk sensibly of patterns of holdings without considering how these patterns are to be produced and maintained. If this were all he was claiming in saying that no purely end-state or patterned theory is tenable, then Nozick would certainly be right. This would not do much to clear the field, however. As Nozick rightly points out, philosophical theories of distributive justice have often neglected the problems of how patterns of distribution can be established and preserved, but a theory can incor-

porate such considerations, and so avoid being an end-state theory in this narrow sense of the term without coming close to the position Nozick favors. It seems, however, that Nozick’s rejection of end-state theories encompasses more than the claims I have just endorsed. For he wishes to reject Rawls’ theory as an unacceptable end-state theory, despite the fact that it incorporates considerations of entitlement through the notion of pure procedural justice.® If the basic institutions of a society are just, according to Rawls, then the holdings people acquire through the operation of those institutions are legitimate, whatever these holdings may be, and people have rights over these holdings as the rules of the institution provide. The basic structure itself is just, according to Rawls, if itconforms to his Two Principles, namely the principle of maximum equal basic liberties and the principle that institutions generating unequal holdings are just only insofar as these inequalities are to the benefit of the worse off, and only if the positions of greater reward are open to all under conditions of fair equality of opportunity. Nozick objects to this theory on the ground that the entitlements it supports have only a derived status; its fundamental principles, he says, are end-state, and it is therefore to be rejected. This rejection would also apply to the modified egalitarian positions I have described. What is the basis for this strong claim, that any acceptable theory must make entitlements fundamental? In arguing against Rawls, Nozick maintains (pp. 199-202) that a theory which brings in entitlement principles as derived principles to be defended by appeal to more fundamental moral notions together with empirical facts will strike us as wrong for the same reason that act-utilitarian

Rights, Liberty, and Property

15

attempts to account for rights seem so obviously mistaken. What is derived in such theories will be only approximations of the principles we intuitively want, and even where they support the same conclusions as these principles do, they do so for what seem to be the wrong reasons. Whether this objection is persuasive against an end-state theory will depend on the character of the end-states with which that theory is concerned.

Consider,

for example,

a theory concerned

solely with the production of certain valued states of consciousness, or one concerned with securing equality in what people physically possess. It might be claimed within such a theory that certain rights to dispose of one’s holdings are justified because they are a good means for producing an end-state of the required kind. Such an argument would indeed strike us as mistaken for reasons of the kind Nozick mentions, reasons strictly analogous to those that plague an act-utilitarian account of the obligation to keep one’s promises or of the prohibition against paternalism. But a modified egalitarian theory of the kind I suggested above would not have this problem. In such a theory, control over various aspects of one’s life is something which has an independent value. This provides a direct basis for arguments in support of the personal rights that secure and protect such control, removing any need to appeal to whatever tendency these rights may have to promote other, intuitively unrelated effects. It is on such a basis that Rawls’ theory recognizes powers and liberties, including the right to hold personal property, as primary social goods.7 The value attached to the ability to exercise control over a certain aspect of one’s life is not the same thing as a right assigning a person a particular form of such control. (For example, the value attached to being able to be unobserved is not the same thing as a right which is designed to secure a certain form of privacy.) But this value is the natural reason for having such a right, and it is, I think, the element often missing from utilitarian accounts that seek the value of a right in its tendency to promote some further unrelated effects. To recognize a particular interest as meriting protection in rights is not

to say that it is to have absolute protection. It may be a difficult question how a right can be designed to protect that interest and how much protection can be given at tolerable cost. Rights of privacy, for example, represent a strategic attempt to protect our

116

Thomas Scanlon

interest in being free from unwanted observation while not making life too difficult in other ways. This general point about the relation between workable rights and the human interests that make them important has a further relevance to Nozick’s argument. In defending his particular system of rights, Nozick often seems to assume that any alternative rights would be wholesale in character. One such right which he considers is “the right to have a say over what affects you” (p. 268). Nozick properly points out that a right literally to have a say in all decisions that affect you, or even in all those that affect you deeply and intimately, would be impossibly broad. It is essential to distinguish between different ways in which something can affect a person. As Nozick puts it, what decision affects me more deeply than the decision the person I love makes in deciding whom to marry? But this does not mean that I should have a right to a role in making that decision. Nozick’s conclusion is that it is my “Lockean” rights that determine which things, among all those that affect me, I have the right to a say over. I would agree that, while the importance of rights largely flows from the importance of having control over things that affect one, the function of a system of rights is to distinguish between the various ways that things can affect people and to apportion out particular forms of control. It follows that if we are agreed how this is to be done, then we will refer to people’s rights in order to determine what they are entitled to a say over. But it does not follow that Nozick’s “Lockean” rights are the correct ones, and this is just what is at issue. If a supposed right turns out to give the person holding it an obviously unacceptable degree of control over other people's lives then that is ground for saying that there is no such right. The proposed “right to have say over what affects you” fails this test. But what the objection formulated in terms of this right is really claiming is that unrestricted property rights of the sort favored by Nozick must also be rejected on the same grounds. This issue is also raised by an objection which Nozick takes up in the section entitled “Voluntary Exchange.” This objection maintains that a situation in which workers accept employment at very low wages cannot adequately be defended by saying that this is a voluntary agreement. For the alternatives faced by the workers may

Rights, Liberty, and Property be so them. one’s pends

17

bad that they have no choice but to accept the terms offered Responding to this, Nozick claims that whether limitations on alternatives undermine the voluntariness of one’s action deon what these limitations are. First, they must be human

actions, and, second, they must be actions that the agents lacked the

right to perform. He cites the example of someone who marries the only available person (all the more attractive partners having already chosen others) as a case of an action that is voluntary despite removal of all but the least attractive alternative through the legitimate actions of others. To begin with, voluntariness does not seem to be the relevant notion here. A person’s action could remain voluntary even if illegitimate intervention removed the more attractive alternatives. Perhaps we would say in such a case that he was forced to choose the lesser of the remaining

evils, but the moral

significance of this

remark is not clear. Sometimes it is all right to force someone to do something by making the alternatives unacceptable, and being so forced does not always invalidate agreements made. It may depend on who does the forcing. Thus, even if the notions of forcing and voluntariness sometimes

incorporate notions of rights, as Nozick’s

analysis of voluntariness suggests, they certainly do not always do so. Where they do not, it seems unlikely that we can settle the question of the moral acceptability of a form of treatment by appeal to intuitions about forcing and voluntariness. If these notions do incorporate moral principles, then such appeals to intuition are going to be suspect when these principles are themselves in dispute, as they are in the present case. Disagreements about these principles will be translated into conflicting judgments about the voluntariness of actions and into disagreements in particular cases over whether “voluntary” is being used in a morally charged way. The real question at issue in the case at hand is whether it is justifiable to allow wages to be determined by bargaining under the conditions here envisaged. It is the connection with justification that makes plausible Nozick’s restriction of attention to limitations on alternatives that are brought about by human action. Even though acts of nature may limit our alternatives, they are not subject to demands for justification. But individual human actions are not the only things subject to such demands; we are also concerned with social institutions that make it possible for agents to do what they

118

Thomas Scanlon

do. The objection that Nozick considers challenges the assignment of rights which determines the bargaining positions of employers and workers. It raises the question whether this system of rights does not protect the liberties of some people in a way which gives them an unacceptable degree of power over others. This question cannot be met merely by reaffirming the rights in question. A further level of argument is invoked in the analogy with marriage. The suggestion is that any interference with the rights of employers would be an intolerable intrusion—as a forcible reassignment of marriage partners would. Serious consideration of such a claim would bring Nozick’s argument onto the same plane as the objection he is confronting. To settle the question between them, one would need an assessment of the relative importance of the various forms of liberty that are at stake and an account of how these and other values would be affected by alternative assignments of rights. It is worth pointing out that the standards of importance employed in such an argument will be socially relative. Whether assigning one person the right unilaterally to deny others access to a certain good (say, university education) gives him a morally significant or questionable degree of control over them depends on the role that this good plays in the lives that people lead and aspire to in that society. This question is not settled by asking whether people could have done without the good in the state of nature or by asking how much it is valued by the particular individuals who are involved in a given case. Something between these two is required; something less subjective than the latter but more historically variable than the former. Nozick describes such a standard as the relevant one for deciding whether a person must be compensated if others prohibit him from a course of action which creates risk that their rights will be violated. Compensation is due, he says, if the actions are of a type that “are generally done, play an important role in people's lives and are not forbidden to a person without seriously disadvantaging him” (p. 81). It would seem that this standard should also be appealed to in defending claims about how far people’s rights extend, but Nozick seems not to allow such appeals. In Nozick’s conception, the primary threat to liberty is the imposition of obligations to which one has not consented. Liberty is to be safeguarded by keeping such obligations to a minimum, leaving the greatest: possible scope for voluntary agreements and

Rights, Liberty, and Property

119

exchange. This concern is evident in Nozick’s rejection of the Hart-Rawls Principle of Fairness. As stated by Rawls, this principle holds as follows: A person is required to do his part as defined by the rules of an institution when two conditions are met: first the institution is just (or fair), that is, it satisfies the two principles of justice; and second, one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one’s interests.?

Against this principle Nozick urges the following example. Suppose that some of the 364 other people in your neighborhood decide that it would be nice to have regular programming over the public address system already installed on your block. They initiate the practice and post a notice assigning each person a day in the year on which he is to man the microphone, to play music, discuss philosophy, tell jokes, or whatever else he wishes to do. The practice goes on for some time and although you never discuss the system with your neighbors, you enjoy it greatly. But then your day comes and you would rather go fishing. Are you obligated to perform instead? Nozick says clearly not, and in this he may be right. He also claims that the Hart-Rawls principle would require you to perform and is therefore mistaken. He goes on to hold that there is no way to patch up the principle so that it would avoid this consequence while still generating a nonconsensual obligation to obey the commands of the state. It should be said that insofar as this criticism is addressed to Rawls, it is slightly off the mark. In A Theory of Justice, Rawls rejects the idea of deriving the obligation to obey the law from citizen’s receipt of the benefits of government. The Principle of Fairness is to apply only to cases where the receipt of benefits is voluntary, and in the case of the state it is usually not. Where there

is a moral requirement to comply with nonvoluntary institutions such as the state, this requirement derives (via what Rawls calls the

Natural Duty of Justice) merely from the fact that those institutions are just. Whichever way we look at it, however,

the justice of an institu-

tion is a crucial factor in assessing our obligations to it. Is the neighborhood broadcasting network described by Nozick a just institution in the relevant sense? Nozick’s positive answer seems to

120

Thomas Scanlon

be based on a narrow construal of the appropriate standards of justice. He takes it to be just because the benefits are evenly distributed and the burdens (days on duty) shared equally. But there are other considerations than these. For example, there are considerations of liberty: the power to determine the schedule (about which nothing is said) and the power to determine who is to participate (“the organizers” just draw up a list). My intuitive judgment as to whether there is an obligation to perform is quite sensitive on both these issues. If we take the organizers’ action as an official fiat then the obligation seems nonexistent. But if we take their list merely as a suggestion to which the person in question might have objected but did not, then the obligation is less preposterous. Similarly, in general, in assessing the justice of an institution, we must consider the restrictions it imposes on people’s liberty. We ask whether these restrictions are rationally related to the justifying purposes of the institution (how much would be lost if participation were made fully voluntary?) and whether these purposes (and this incremental contribution toward them) are sufficiently important to justify these restrictions. Arguably the neighborhood network fails on both counts. Arguably some activities of the state beyond those countenanced by Nozick pass. The contrast between Nozick’s and Rawls’ views on political obligation illustrates the important difference between two types of consent theory. In theories of the first type, actual consent has a fundamental role as the source of legitimacy of social institutions. Theories of the second type start from the assumption that the institutions with which political philosophy is concerned are fundamentally nonvoluntary. These institutions are held to be legitimate if they satisfy appropriate conditions, and the idea of hypothetical consent enters as a metaphorical device used in the formulation and defense of these conditions. Questions of actual consent arise only as internal questions ofliberty, that is, as questions about what options acceptable institutions must leave open to those living under them. The difference between these two theories is magnified by the fact that the idea of consent involves choice against some background of alternatives. If what is at issue is initial consent to institutions from without, then the relevant background is that of this preinstitutional condition. It is only this viewpoint that makes the “baseline” of conditions in the state of nature seem relevant. By

Rights, Liberty, and Property

121

contrast, since the questions raised through the device of the hypothetical contract are questions about the justifiability of social institutions to people who find themselves living under them, the relevant background is given by the alternatives actually available to people in societies and the values that such people attach to these alternatives. This is not to say that the values assigned to various choices and prospects by people in a given society are always morally determinative. They may be set aside if they can be shown to be artifactual in a way that makes them morally suspect. But there is no temptation, on this view, to take the standards of some earlier

(for example, pretechnological) age as relevant to the acceptability of contemporary institutions.

The idea that respect for individual liberty requires that consent be a necessary condition for all obligations beyond the requirements of a minimal framework of rights arises in the same way as the idea that makes subjective preference seem the only acceptable basis for ethically significant judgments of relative well being. Further, the two views involve similar mistakes. Welfare economists and those who support subjective versions of utilitarianism are moved by the belief that the interests of the affected parties are the bases on which social policies should be appraised and by the belief that it is unacceptable to “impose” on these parties, as the relevant account of their interests, a system of values that they do not share. The response to these beliefs is generally to bring individual preferences into a theory at the foundational level, making them the basis for all judgments of relative value. A few restrictions on what can count as admissible preferences may be allowed in the form of requirements of consistency, transitivity, and so on, but anything beyond such purely formal restrictions is seen as a threat. When a theory is constructed in this way, so that it treats almost all preferences at face value regardless of their origins or content, its conclusions can be substantially affected by the social conditions which influence prevailing preferences and their relative strengths. This robs the theory of an important kind of critical power and, in addition, makes it an uncertain guardian of even those values of individual autonomy which it set out to protect. Many different conditions are important for the development of autonomous preferences, and the ability of

individuals to give effect to their preferences in their own lives and in the determination of social policy depends on a variety of powers

2

Thomas Scanlon

and liberties. To give appropriate recognition to the value of individual autonomy a theory must assign appropriate weights to all these factors in balancing them against each other and against other competing considerations. Autonomy is not adequately recognized simply by letting these weights and all others be determined by whatever constellation of individual preferences happens to prevail at the point at which the theory is applied. Similar problems arise for a view which, acting out of a desire to safeguard individual liberty, brings consent in at the foundational level as the basis of almost all obligations, and allows it to be restricted by only a minimum of “imposed” moral requirements. The consequences such a theory can endorse are unacceptably open to determination by factors affecting the relative bargaining strength of various individuals, for example, variations in the demand for and

scarcity of particular talents and resources. In particular, the ability of individuals to exercise the kind of control over their lives that freedom from imposed obligations is supposed to secure will be to an unacceptable degree merely a function of their bargaining strength. As in the previous case, the conclusion to be drawn here is that individual liberty is not adequately protected simply by bringing consent in as the foundation of obligation. An adequate theory must take into account the various ways—other than merely by being morally free to withhold one’s services—in which individuals may be enabled to exercise control over their own lives and their common institutions (or disabled from doing so.) Preference-based theories of social welfare and consent-based theories of obligation can be seen as, respectively, teleological and deontological responses to similar intuitive ideas. The two are brought together when utility is taken as the basis of arguments for the efficiency of the free market. Each also derives support from a form of skepticism about the existence of an ethically significant, objective basis for the comparison and balancing of the interests of different individuals. 1° The two forms of consent theory correspond to two differing views of rights. Either view may recognize rights as a basis for individual claims against social institutions. Thus both see some rights as “natural” in the sense of having validity that does not derive from positive law or social institutions. On the first view, however, the rights that are the basis for moral criticism and defense of social

Rights, Liberty, and Property

223

institutions are seen as “natural rights” in the stronger sense that they are the very same rights which individuals possess and can claim against one another in a state of nature. On the second view, rights represent general judgments about the conditions of legitimacy of social institutions, for example, judgments of the form “Any institutions granting that power are morally unacceptable.” Exactly which such generalizations seem true and important—what things are rights and what these rights encompass—are matters that will change as social conditions change. Some of these rights concern things that would be of no relevance, or only a very different and more limited kind of relevance, in a state of nature. (Rights to freedom of expression, due process of law and political participation seem to have this character.) It is central to Nozick’s argument that the rights with which he is concerned are claimed to be natural rights in the stronger sense. The objections I have raised to his examples almost all demand that he consider the consequences of enforcement of absolute property and contract rights and that he explain why the loss of liberty this involves for some people is not worse than that which is involved in the alternative systems which he deplores. Such objections suppose that the property rights enforced by the minimal state and those embodied in socialist institutions are two alternative social systems open to the same kind of objections and needing the same kind of defense. Nozick rejects this symmetrical picture. In his view, the particular property rights protected by the minimal state are not licensed or created by it and consequently do not need to be defended as part of its justification. These rights are ones that individuals have quite independently of the social institutions in which they live. In enforcing these rights the minimal state is only doing for them what they were already entitled to do for themselves. Consequently it is not doing anything that could be held to infringe anyone's liberty. How plausible is the claim that the rights appealed to in Nozick’s examples are ones that individuals would have in a state of nature? This claim has greatest initial plausibility with respect to the right of nonaggression. An unprovoked attack occurring today on the streets of New York seems to be wrong for the same reasons that would apply to a similar attack in the state of nature. But the right of nonaggression as Nozick interprets it covers more than this. It

124

Thomas Scanlon

prohibits generally “sacrificing one person to benefit another” (p. 34). I take it that what Nozick wants to rule out here is any use of force or the threat of force to make one person contribute to the welfare of another who has no right to this contribution. This last qualification reduces the right considerably, but without it the right would be absurd. This shows that the right of nonaggression cannot be interpreted in isolation from other rights. Its invariance between the state of nature and other conditions will consequently depend on that of these other rights. Chief among these is the right to one’s property. A system of property is a set of rules defining the conditions under which a person owns an object and specifying the extent and character of the rights of owners. What a person’s property rights are will normally depend not only on what systems of property could be validly enforced under the conditions in which he lives but also on what system is actually in use. To the extent that this system is morally legitimate, its provisions determine his rights. But the provisions of this system may also be wrong. They may claim for him rights that no one could really have or they may fail to protect claims that any valid system would have to recognize. Surely we can imagine an incident, occurring in a state of nature, which strikes us intuitively as a violation of property rights. Imagine that a family is living in the wilderness when a group of strangers comes along and drives them off part of their land and takes their crops. This strikes us as a clear wrong. I take it that the point of saying that this happens “in a state of nature” is just that the wrongness involved does not seem to depend on any system of law or social convention. But it is open to question whether what we feel to be violated in such examples is really a natural right to property.!! For these cases strikes us as clear wrongs only if we suppose, first, that what is taken is of use to the person who loses it (that is, that the taking actually constitutes an interference with his life and activities) and, second, that his appropriation and use of the thing did not already constitute an interference with others. (The notion of what constitutes an “interference” will depend on, but perhaps not be exhausted by, a historically varying notion of “normal appetites.”) When these conditions are satisfied, the taking infringes upon what might be called the natural right of noninterference. A system of property rights goes beyond this primitive right by specifying formal criteria of ownership. If a

Rights, Liberty, and Property

125

person is deprived of something to which he has acquired title in the specified way, then his property right has been violated whether the taking makes any difference to his life at all. Different systems of property carry out this extension in different ways, each specifying its own criteria of ownership and defining and limiting the rights of owners in its own way. These extended rights require justification since, as one’s person’s claims to forebearance cease to be limited by the requirements of a normal life, the justification for these claims become more attenuated and the threat they present to others grows more serious.

To support the claim that some property rights are natural rights we need to think ofa state of nature example involving a clear wrong which seems to violate one of these rights without violating the primitive right of noninterference. But if we imagine such a case we may be open to the question of why we should imagine a state of nature containing that particular system of property, rather than some other system which would not be violated by the act in question. This objection could be avoided if we could show that the primitive right of noninterference does not exhaust the common core of systems of property rights. Perhaps there are certain provisions falling outside this right which would be incorporated in any system of property rights that could plausibly be held to be valid in a state of nature. It could then be argued that the provisions which Nozick’s examples turn on fall in this class, for example,

that an

unrestricted right of inheritance does so. But this is far from clear. Suppose the grandfather of the family we previously imagined lived on land a short distance away and that when he died he said, “Now this is yours.” But they had all they could do to take care of their own place, and one day they noticed that someone else had moved onto their grandfather's old farm. Are they entitled (in the state of nature) to throw the people off or to demand payment? It is not obvious to me that they are. Even if there is “as much land and as good” not far off, their claim to demand that the new people move to it is quite debatable. Furthermore, even if we were to be convinced by such examples that any system of property valid in a state of nature would have to include unrestricted inheritance,

there would remain the

question of how much this judgment is dependent upon our assessment of the consequences that this provision would have in a “natural state.” These consequences are apt to be quite different

126

Thomas Scanlon

from those that would result from the same provision under other social conditions. It is of interest here that Locke clearly distinguishes between the natural property rights that he sees as holding in a state of nature antecedent to law or social convention and the systems of property that arise later with the introduction of money and the creation of government.!2 The system of natural property rights under which men can acquire title to things by laboring on them is held by Locke to be valid without consent. It is crucial to his argument for the validity of these rights that, under the conditions of the state of nature, the holdings to which people can be expected to acquire title will not extend beyond “the conveniences of life.”1% They will not do so because the right itself is restricted by the proviso that things not be held if they will just go to waste and because the things men are interested in acquiring in a primitive state are generally “of short duration.’14 This limit on the extent of holdings is important to the positive case for the natural right of property since it means that the things the right protects are needed for a normal life. It also forestalls objections to the right by providing an important part of the reason for believing that acquisition under it will not allow one person to “entrench upon” others but will leave them with “enough and as good.”!5 Thus, under the conditions Locke believes to hold in the state of nature, his natural right of property will not significantly extend what I have called the right of noninterference, and Locke’s argument for the validity of his right depends upon this fact. Once the introduction of money gives men the means to store up, without spoilage, more than they can use, and commerce gives them a reason for doing so, there is no longer any reason to expect holdings to be limited to the conveniences of life. When this happens, the original moral foundation for property rights is no longer valid, and a new foundation is required. Locke takes consent to be this foundation. The “disproportionate and unequal possession of the earth” which may obtain after money comes into use is legitimated, according to Locke, by the “tacit and voluntary consent” which men give to the use of money and without which it would not work.!® Later systems of property founded by positive legislation derive their authority from the consent men have given to their governments.

Rights, Liberty, and Property

127,

Nozick appears to reject both of these latter foundations for property rights. He avoids invoking a social contract, and he denies Locke’s empirical claim that a functioning system of money requires consent, suggesting that it could arise instead through an “invisible hand process” (p. 18).!7 He faces the problem, then, of deriving an extended system of property rights involving money, commerce, and extensive holdings from something like Locke’s original “natural” foundation. This derivation faces two problems. The first is that the lack of natural bounds on acquisition means that others are likely to be threatened—there may not be enough and as good left for them. As I have already mentioned, Nozick’s response here

is that the increase in the stock of goods due to increasing productivity will keep pace with increased acquisition, making it unlikely that anyone will be made worse off relative to the baseline of expectations in the state of nature. The second problem is that, with holdings extending far beyond “the conveniences of life” (certainly far beyond what these included in the state of nature), the case for absolute protection of these holdings becomes weaker. This makes even more controversial the choice of an extremely low baseline for determining whether the condition of others is worsened. In closing, let me mention two important problems to which Nozick’s book calls attention. It is a virtue of the book that it forces us to consider economic institutions not merely as mechanisms for the distribution

of goods but also, like political institutions,

as

placing restrictions and demands on us which raise questions of obligation. When things are seen in this way it becomes apparent that questions of economic liberty must be considered, along with political and civil liberty and fair distribution, as conditions for the legitimacy of social institutions. I hope that this will have an impact on contemporary moral and political philosophy, where economic rights and liberties have generally been neglected in favor of political philosophy, where economic rights and liberties have generally been neglected in favor of political and civil liberties and rights and liberties have generally been neglected in favor of political and civil liberties and rights of other sorts. I have argued that the particular framework of property and contract rights which Nozick proposes does not constitute an adequate account of the claims of economic liberty. In opposition to this framework I have appealed vaguely to the value of having control over various aspects

128

Thomas Scanlon

of one’s life, and I have asserted that a workable system of rights could be developed that would secure this value, and others, more

adequately than the rights Nozick advocates. What is needed, however, is a systematic account of the relevant forms of liberty and control and of the values associated with them.

The idea that rights constitute constraints on the pursuit of the maximum social good (p. 166) has great appeal as a way of avoiding the objectionable consequences of utilitarianism. I have not been willing to accept the particular system of rights which Nozick opposes to utilitarianism, however, and I have complained that these rights require defense. But this demand for justification, a demand that any alternative conception of rights must also satisfy, seems to lead inevitably back to an appeal to consequences, and to the balancing of individual benefits and burdens. I have certainly made heavy use of such balancing in my objections to Nozick’s views. The problem remains, then, of giving a satisfactory account of what this balancing involves and how it is relevant. This account must avoid falling back into an objectionable utilitarianism without simply invoking another set of a priori rights. NOTES

*T am grateful to Dennis Thompson for helpful comments. NEH Fellowship support is also gratefully acknowledged. 1. (New York, 1974). Page numbers in the text refer to this book. 2. Worse off, that is, in what they are able to use; it is not enough that they be worse off with respect to what remains available for initial appropriation. See p. 178. 3. Thus, for example, W. D. Ross says: “The essential defect of the ‘ideal

utilitarian’ theory is that it ignores, or at least does not do full justice to, the highly personal character of duty. If the only duty is to produce the maximum of good, the question who is to have the good—whether it is myself, or my benefactor, or a person to whom I have made a promise to confer that good on him, or a mere fellow man to whom I stand in no such special relation—should make no difference to my having a duty to produce that good. But we are all in fact sure that it makes a vast difference.” The Right and the Good (Oxford, 1930), p. 22. 4. This question is raised by Thomas Nagel in his review of Nozick’s book. See p. 148 of his “Libertarianism Without Foundations,” The Yale Law Journal 85 (1975). The hypothesis I go on to discuss is consistent with

Rights, Liberty, and Property

129

Nozick’s remark (p. 210) that an egalitarian sees inequalities as involving a cost.

5. For such a view of equality see Christopher Ake, “Justice as Equality,” Philosophy & Public Affairs 5, no. 1 (Fall 1975): 69-89. 6. See John Rawls, A Theory of Justice (Cambridge, Mass., 1971),

pp. 83-88, 304. 7. Ibid., pp. 61, 62, 92.

8. For a general form of this objection, see Nozick, p. 238. 9. A Theory of Justice, pp. 111-112. 10. In Nozick’s case the skepticism concerns the ethical significance of such balancing, not its epistemological basis. For a thoroughgoing rejection of balancing see pp. 32-33. This extreme position is criticised by Nagel in his review cited in fn. 4 above. A more moderate position, according to which rights set the limits of permissible balancing, is suggested by Nozick on p. 166.

11. The following argument is drawn from my article, “Liberty, Contract and Contribution,” to appear in G. Dworkin, G. Bermant and P. Brown, eds., Markets and Morals. 12. Second Treatise of Government,

13. 14. 15. 16.

Ibid., Ibid., Ibid., Ibid.,

§36. §46. §36. §50.

§50.

17. Nozick does not discuss the normative purpose of Locke’s claim, and it is not clear that Locke’s argument is affected by his objection. Locke uses the word “agreement,” but he does not clearly assert, and does not need to claim, that an explicit agreement is needed to establish a system of money. All he needs to claim is that the continued functioning of such a system involves everyone’s tacit consent.

i Some Ruminations on

Rights JUDITH JARVIS THOMSON

In Anarchy, State, and Utopia, Robert Nozick says that a government which imposes taxes for the purpose of redistribution violates the rights of its citizens.1 The word “imposes” perhaps needs no stress: Nozick could hardly object to a government's withholding a percentage of income for this purpose if its citizens had unanimously requested it to do so. What he objects to—on the ground of its constituting a violation of rights—is forcing payment for this purpose on those who do not wish to pay. What we might expect Nozick to give us, then, is a theory of rights, or at least a clear picture of why this should be so. In fact, we get neither. Nozick makes two quite general points about rights, both of them important. He says, first, that the fact that if we bring about that such and such is the case there will be more good in the world than there otherwise would be does not by itself justify our bringing about that it is the case, and this on the ground that to bring it about may be to violate a right. This seems to me to be wholly right. Suppose, for example, that if we bring about that Alfred takes a certain aspirin tablet there will be more good in the world than there otherwise would be. This does not by itself justify our bringing about that Alfred takes it, for it might be that to do so would be to 130

Some Ruminations on Rights

131

violate a right. For example, it might be that Bert owns that aspirin tablet and does not wish Alfred to take it; in that case, to bring about

that Alfred takes it would be to violate a right of Bert’s. Indeed, it might be that Alfred himself owns it but does not wish to take it; in that case, to bring about that he does would be to violate, paternalis-

tically, a right of Alfred’s. This point, though important, is familiar enough. What is perhaps less familiar is Nozick’s second point: That the fact that if we bring about that such and such is the case there will be more good in the world than there otherwise would be does not by itself justify our bringing about that it is the case—even if we require that in assessing how much good there will be in the world account be taken of which rights, if any, will be infringed and of how “stringent” those rights are. This point too seems to me to be wholly right. If we do opt for this requirement on an assessment of how much good there will be in the world, then it seems to me we may suppose that if we bring about that Alfred takes a certain aspirin tablet there will not be more good in the world than there otherwise would be, however bad Alfred’s headache may be: for there would have to be considered in arriving at the assessment, not merely the fact that if we bring about that Alfred takes the aspirin his headache will go away, but also (as it might be) the fact that a right of Bert’s will be infringed, or (as it might be) the fact that a right of Alfred’s will be infringed. If so, this is not really a case in which, even though there will be more good in the world if we act than there otherwise would be, it is not morally permissible for us to act. But there are other cases. Suppose that a villain threatens to kill five people if you will not kill Charles. Even prima facie it seems that if you act, there will

be more good in the world than there otherwise would be since five lives are four more than one life. And now let us include in our assessment infringements of rights. If you act, fewer rights will be infringed than if you do not, for five violations of the right to not be killed are four more than one violation of the right to not be killed. Therefore, if we require that in assessing how much good there will be in the world account be taken of which rights, if any, will be infringed and of how stringent those rights are, this is a case in which there will be more good in the world if you act than if you do not. Yet you surely cannot act, since you surely cannot kill in response to such a threat.

132

Judith Jarvis Thomson

This kind of case has been appearing fairly often in recent literature.2 The kind of case I mean is this: For the agent to act would require him to infringe a right, but he is under threat that if he does not act, others will infringe more, equally stringent rights. Most people agree that the agent in such a case cannot act. What is particularly good in Nozick’s treatment of these matters is the connection he makes between cases of this kind on the one hand, and the case of Alfred on the other hand. Nozick’s discussion brings out that if a utilitarian saves his theory in face of putative countercases such as that of Alfred by claiming that right-infringements themselves

have

disvalue,

which

disvalue

must

be counted

in

assessing how much good there will be in the world if the agent acts, he thereby ensures that cases where the agent must infringe a right to avoid greater right infringement on the part of others will be counter-cases.

As I say, I think these points are wholly correct. Nozick does not argue for them; nor shall I. But to have arrived here is to be miles away from Nozick’s thesis about government and taxation for the purpose of redistribution. What we have so far is that the fact that if we bring about that such and such is the case there will be more good in the world than there otherwise would be does not by itself justify our bringing about that it is the case. Thus suppose redistribution is, in one way or another, a good, and that if we make a certain redistributive move there will in fact be more good in the world than there otherwise would be. What we have is that that fact does not by itself justify our making that redistributive move. However, this leaves it wide open that something which includes—or even something entirely other than—that fact does justify our making it. Let us begin with a point of terminology. Suppose that someone has a right that such and such shall not be the case. I shall say that we infringe a right of his if and only if we bring about that it is the case.° J shall say that we violate a right of his if and only if both we bring about that it is the case and we act wrongly in so doing. The difference I have in mind comes out in the following case, which I shall call A:

(A) There is a child who will die if he is not given some drug in the near future. The only bit of that drug which can be ob-

Some Ruminations on Rights

133

tained for him in the near future is yours. You are out of town, and hence cannot be asked for consent within the available time. You keep your supply of the drug in a locked box on your back porch. In this case the box is yours, you have a right that it not be broken into without your consent; since the drug is yours, you have a right that it shall not be removed and given to someone without your consent. So if we break into the box, remove the drug, and feed it to the child, we thereby infringe a number ofrights of yours. But I take it that a child’s life being at stake, we do not act wrongly if we go ahead; that is, though we infringe a number of your rights, we violate none of them. It might be said that we do violate one or more ofyour rights if we go ahead, but that our act, though wrongful, is excusable. In other words, although we act wrongly if we go ahead, we are not to be blamed for doing so. It is true that for clarity about rights we need, and do not have, “a general account of when one should say “a nonwrongful infringement of a right” and when one should instead say ‘a wrongful, but excusable, infringement ofa right.” I think (but

without great confidence) that the difference lies in this: The former may not be said where, and the latter may only be said where the agent ought not act or ought not have acted. If so, then the proposal we are considering is false: For it surely is plain that a third party would not speak truly if he said to us, given we are in (A): “You ought not go ahead.” In any case, the proposal in a certain sense hangs in mid-air. What I have in mind is this. It is presumably agreed universally that if we go ahead in(A), we are not to be blamed, punished, scolded, or the like, for doing so. Now the question is: Why? One possible answer is: If we go ahead in (A) we do not act wrongly, and that is why we are not to be blamed for doing so. That this is my answer shows itself in the paragraph in which I first set out (A). But how is a proponent of the proposal we are now considering to answer? On his view, we act wrongly if we go ahead; what, on his view, is the reason why we are not to be blamed for doing so? There are cases in which there is an answer to an analogous question. Thus if I break your box in a rage which you provoked, then I acted wrongly, but perhaps excusably, and the reason why I am not to be blamed (if I am not) is

134

Judith Jarvis Thomson

at hand: you yourself provoked the rage out of which I acted. Again, a reason why I am not to be blamed in another case might be: I was not fully aware of what I was doing; or I was so frantic with worry I could not think clearly; or I was so frantic with worry, nothing else

seemed to matter. If (A) had read: “Our child will die if he is not given ...,” then there might have been a toehold for an answer of the kind just pointed to. But (A) says: “There is a child who will die ifhe is not given . . .”; and it is possible to suppose that we go ahead in (A)—break the box, and give the drug to the child—calmly, coolly, carefully weighing all the relevant considerations. If so, just what is a proponent of the proposal we are now considering to give as an answer to the question of why we are not to be blamed for doing so? So I shall simply assume that this proposal is false, and I shall take it, then, that while we infringe some of your rights if we go ahead, we do not violate them.4 A second way of responding to what I said of our act if we go ahead in (A) is this: True, we violate no rights if we go ahead, but we also infringe no rights if we go ahead. What I have in mind is the possibility of saying that you do not have either of the rights it might have been thought you had—that you do not have a right that your box not be broken into without your consent, and that you do not have a right that your drug not be removed and given to someone without consent—on the ground that it is morally permissible for us to go ahead in (A). What rights do you have over your box and drug on this view? Well, I suppose it would be said that what you have is at most a right that your-box-not-be-broken-into-and-your-drugnot-taken-without-your-consent-when-there-is-no-child-who-needsthat-drug-for-life. The inclination to take, everywhere, either the view discussed just above, or the view indicated here, is the inclination to take it that if a man has a right that such and such shall not be the case, then if we bring about that it is the case, we act wrongly in so doing. As the point might be put, every infringing of a right is a violation of a right. So if a man really does have a right that such and such shall not be the case (as it might be, that his

drug not be removed from his box), then we act at best excusably if we bring about that it is the case—as in the view discussed just above. If we do not act wrongly in bringing it about, then he did not really have a right that it not come about, but at most a right

Some Ruminations on Rights

135

that it-not-come-about-when-the-circumstances-are-so-and-so—as in the view indicated here. It seems to me, however, that you do have a right that your box not be broken into without your consent and a right that your drug not be removed and given to someone without your consent, and that what shows this is the fact that if we go ahead in (A)—break into your box and give some of the drug to the child—we shall have later to pay you some, if not all, of the cost we imposed on you by doing so. We shall have to pay some, if not all, of the cost of repairing or replacing the box and of replacing the drug we removed.*® You may reject

payment:

you

may

say,

on

your

return,

that,

the

cir-

cumstances having been what they were, all is well, and that you do not mind bearing the costs yourself. But we must at least offer. If you had no right that we not do these things without your consent, why would we have to pay you some of the costs we imposed on you by doing them? It is sometimes said® that if we go ahead in (A) we shall have to compensate you for the costs we imposed on you by doing so, and that that is what shows that we infringed some of your rights by going ahead—for compensation is repayment for a wrong. But I think that this is not a good way to put the point, and will bring out my reason for thinking so below.7 In any case, it seems to me we do well to agree that rights are not all absolute: There are rights which can be infringed without being violated. In particular, it seems to me that if we go ahead in (A), we infringe some of your property rights, but do not violate any of them. What people who would agree with me on this matter would say is this: If we go ahead in (A), we will infringe your property rights, but we would not violate them, since those rights are “overridden”

by the fact that the child will die if we do not go ahead. A more stringent right than your property-rights over your box and drug might not have been overridden by this fact. For example, if it had been necessary for the saving of the child’s life that we kill you, then it would not have been morally permissible that we go ahead. Your right to not be killed is considerably more stringent than any of your property rights, and would not have been overridden by the child’s need. The question just how stringent our several rights are is obviously

136

Judith Jarvis Thomson

a difficult one. It does not even seem to be obvious that there is any such thing as the degree of stringency of any given right. Perhaps a right may be more or less stringent, as the rightholder’s circumstances vary, and also, in the case of special rights, as the means by which he acquired the right vary. One thing only is plain: Only an absolute right is infinitely stringent. For only an absolute right is such that every possible infringement of it is a violation of it. Indeed, we may re-express the thesis that all rights are absolute as follows: all rights are infinitely stringent. There are passages in Anarchy, State and Utopia which suggest that Nozick thinks all rights are infinitely stringent. He says: “[O]ne might place [rights] as side constraints upon the actions to be done: don’t violate constraints C. The rights of others determine the constraints upon your actions. . . . The side-constraint view forbids you to violate these moral constraints in the pursuit of your goals... .”® If you use “violate” in the way I suggested we should use it, this “side-constraint view” does not amount to much—under

that reading of the term, all Nozick says is that we may not wrongly infringe a right. Of course we may not. But I think he does not mean so to use the term “violate”, in this passage at any rate: I think that in this passage all he means by it is “infringe.” Thus I think that we are to take this “side-constraint view” to say that we may not ever infringe a right. Accordingly, every infringing of a right is wrong. Compare what Nozick says a few pages on: A specific side constraint upon action toward others expresses the fact that others may not be used in the specific ways the side constraint excludes. Side constraints express the inviolability of others, in the ways they specify. These modes of inviolability are expressed by the following injunction: “Don't use people in specified ways.”®

Now Nozick does not in fact say that his view is the “side-constraint view,” so interpreted, but he implies that it is. Certainly his thesis about redistribution suggests it: for according to that thesis it is not morally permissible to tax people for the purpose of redistribution, however dire the human need which makes redistribution seem called for, and if dire human need does not override a right, what on earth would? There are also passages which suggest that Nozick thinks that rights may be overrideable, and thus not infinitely stringent, though

Some Ruminations on Rights

137

very stringent all the same. He says that it is an open question “whether these side constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror.”!° Catastrophic moral horror is pretty horrible moral horror; so even if rights are overrideable, as the passage suggests is possible, it is likely to be a rare occasion on which they are overridden. Unfortunately, Nozick leaves the question unanswered; he says it “is one I hope largely to avoid.” There are also passages which suggest that Nozick thinks that some rights at least are overrideable even where catastrophic moral horror is not in the offing. In the course of a discussion of what may be done to animals, he asks: “Can’t one save 10,000 animals from

excruciating suffering by inflicting some slight discomfort on a person who did not cause the animals’ suffering?”!2 And he adds: “One may feel the side constraint is not absolute when it is people who can be saved from excruciating suffering. So perhaps the side constraint also relaxes, though not as much, when animals’ suffering is at stake.”18 Of course Nozick does not say the side constraint relaxes when animals’ suffering is at stake, but he seems to think so,

and it would surely be mad to think it did not. Well, perhaps 10,000 animals suffering excruciating pain counts as catastrophic moral horror. But does it require 10,000 of them, in excruciating pain, to override your right to not be caused some slight discomfort? I take it you have a right to not be pinched without your consent. But surely we can pinch you without your consent, if doing so is required to save even one cow from excruciating suffering. Indeed I should have thought we could do so if doing so is required to save just one cow from suffering which is considerably less than excruciating. This wobbling about the degree of stringency of rights makes a reader feel nervous. It also makes it very unclear just how Nozick is to get from his starting point, which is that we have rights, to his thesis that a government which imposes taxes for the’ purpose of redistribution violates the rights of its citizens. I am inclined to think that what happens is this: At the outset, he is unclear what degree of stringency should be assigned to rights (and hopes to avoid having to take a stand on the matter), but by the time he gets to government, all is forgotten, and rights—at any rate, property rights—are infinitely stringent. It is my impression that his argument for his thesis rests entirely on the supposition that they are.

138

Judith Jarvis Thomson

But surely it is plain as day that property rights are not infinitely stringent. I suppose it hardly needs argument to show they are not. In any case, the fact that it is morally permissible for us to go ahead in (A) would show—if it needed showing—that they are not. Consider, now, a case (B) which is in an interesting way different from (A):

(B) There is a child who will die if he is not given some drugs in the future. The only bit of that drug which can be obtained for him in the near future is yours. You are out of town, so we telephone you to ask. You refuse consent. You keep your supply of the drug in a locked box on your back porch.

“They did it without Jones’ consent” covers two interestingly different kinds of cases: In the one kind, they were unable to get Jones’ consent because he was not available to be asked for his consent; in

the other kind, they were unable to get Jones’ consent because he refused to give it. In the latter kind of case they acted, not merely without Jones’ consent, but against his wishes. (A) is a case of the first kind; we cannot reach you to ask for consent. (B) is a case of the second kind; if we go ahead in (B) we act, not merely without your consent, but against your wishes. I said it is morally permissible for us to go ahead in (A); Is it morally permissible for us to go ahead in (B)P The fact is that our going ahead in (B)—our breaking into the box and removing the drug to give it to the child—seems morally suspect in a way in which our going ahead in (A) does not. Why? And should it? Anyone who thinks that it is morally permissible for us to go ahead in (A) but not in (B) must think that there is at least a good chance that in (A), you would give consent if we were able to reach you to ask for consent. Surely if it were known that if we were to ask for consent in (A) you would refuse to give it, then it would be no better to go ahead in (A) than it is to go ahead in (B). For then (A) too would be a case in which going ahead would be acting against your wishes—though not against any wish that was in fact given expression. Anyone who thinks that it is not morally permissible for us to go ahead in (B) must think that the box and the drug in it are in some way very important to you—that you place a very high value on the box not being broken into, and on the drug not being taken away

Some Ruminations on Rights

139

from you. Suppose, however, that there is a toothpick on your desk, and it is in no way special to you. By virtue of some peculiarity in nature, we can save a life if we snap it in two. We ask if we can, but

you are feeling refractory and say “No.” Can we not go ahead and snap it in two, despite your expressed wish that we not do so? By contrast, suppose what is on your desk is the last remaining photograph of your dead mother, and what we need to do to save the life is to burn it. Well, some people would say we can go ahead all the same. Suppose that what we need to do is to destroy all the now existing beautiful works of art, and that their owners (individuals,

museums, governments) say, “Alas no, we are very sorry, but no.” Could we go ahead all the same? If (X), “The box and drug are, at most, of little value to you,” is true, then we may surely go ahead in both (A) and (B). If(X) is true and we are in (A), then in the absence of information to the contrary, we shall rightly assume you would consent if we were able to ask. But even if we have information to the effect that you would not consent—even if we were in (B) instead of (A)—it is morally permissible for us to go ahead all the same. Why? Because if (X) is true, then it would be indecent for you to refuse consent in (A), and

it is indecent for you to refuse consent in (B). I said you might be feeling refractory; alternatively, you might think: “What is that child to me?” There are other possible sources

of refusal, but none

of

them bears looking at. What if, instead, (Y), “The box and drug are of immense value to you, is true? Some would say we can go ahead all the same. I feel considerable sympathy for this view, but I do not hold it myself. It seems to me that if (Y) is true, we may not go ahead in (B), and in the absence of reason to think you would consent despite the truth of (Y), we may not go ahead in (A) either. I hope that when I first produced (A) above, your intuition agreed with mine; if so, I think that was because you were assuming that nothing so strong as (Y) was true. Why may we not go ahead if (Y) is true? It is not morally splendid to value bits of property more than human lives; but if there are some which you do—and this for no morally suspect reason—then it seems to me that there are cases, and that this is one of them, in which we must withdraw. There are all manner ofpossibilities between (X) and (Y), but it is

not necessary for our purposes that we attend to them. It is also not necessary for our purposes that we attend to a very

140

Judith Jarvis Thomson

interesting question which is raised by consideration of the difference (which I take there to be) between what we may do if (X) is true and what we may do if(Y) is true, but I suggest we have a brief look at it all the same. What I have in mind is the question in precisely what way the difference between (X) and (Y) makes such a difference. One way of explaining it is this: If (Y) is true, then your rights that your box not be broken and drug not be taken are more stringent than they would be if(X) were true. More generally, that (T)

The stringency ofA’s right that x not be broken and y not taken away from him varies with the degree to which he values x’s not being broken and y’s not being taken away from him.

If so, then more is required to override your rights over your box and drug if(Y) is true than is required to override them if(X) is true. In particular, the fact that a human life may be saved by going ahead overrides your rights if (X) is true, but not if(Y) is true. I think, myself, that this is how we should explain the difference (which I take there to be) between what we may do if (X) is true and what we may do if(Y) is true. Indeed, I think we should adopt (T). 14 But the question whether or not (T) is true is very important for the logic of rights; and so it should be noticed that there is yet another way of explaining the difference even if (T) is rejected. What might be said is this: The stringency of your rights that your box not be broken and your drug not be taken is no greater whether (Y) is true or (X) is true; and these rights are overridden by the fact that a human life may be saved by going ahead. But if (Y) is true, then it is less likely, perhaps even impossible, that we are going to be able to reimburse you for all of the costs we impose on you by going ahead; and if we take “immense” very seriously, it is less likely, perhaps even impossible, that we are even going to be able to pay you a meaningful part of those costs. Now it will be remembered that I said earlier that if we go ahead in (A) we are going to have to pay you some, if not all, of the costs we impose on you by going ahead. This means that you have a right, not merely that your-box-not-bebroken-and-drug-taken-without-consent, but also that your-box-notbe-broken-and-drug-taken-without-consent-without-reimbursement-for-some-if-not-all-of-the-costs-imposed-by-the-breaking-andtaking. The former, simpler right is overridden by the fact that a

Some Ruminations on Rights

141

human life may be saved by going ahead; the latter, more complex, right is more stringent, and is not overridden by this fact—indeed, it would be violated if we went ahead without reimbursing you. If (X) is true we can easily make the required payment; but if (Y) is true we cannot. So if (X) is true we may go ahead without violating any right of yours, for we can pay later; but if (Y) is true, then if we go ahead we shall violate, not the simpler right, but the more complex one, for we cannot pay later. And that is why we may go ahead if (X) is true, but not if (Y) is. I have no objection to the supposition that you do have this more complex right as well as the simpler one. And I imagine that it is more

stringent than the simpler one.!> But, as I said, I think we

should adopt (T), and if we do, we can explain the difference in the simpler manner I pointed to earlier. If (T) is not true, then the stringency of a right is independent of the value the rightholder places on its being accorded to him, and that makes the source of rights very dark indeed. If(T) is true, then we can understand why one’s right to life is more stringent than one’s right to not have, for example, an arm broken, and why one’s right to not have an arm broken is more stringent than most of one’s property rights; if(T) is not true, it is obscure why this should be so. The truth of(T) is just what you would expect if rights issue from interests in some way or another. And if they do not issue from interests, what on earth do

they issue from? However, this is no argument for (T). Fortunately it is not necessary for our purposes that we decide on the truth or falsity of (T). It is enough for our purposes that if (X) is true, then we may go ahead in (B) as well as in (A). For with that in hand we are in a position to return to Nozick’s thesis that a government which imposes taxes for the purpose of redistribution violates the rights of its citizens.

I said that it is my impression that Nozick’s argument for this thesis rests entirely on the supposition that property rights are infinitely stringent, and I said also that it is plain as day that they are not. Well, setting aside Nozick’s argument for the thesis, what about the thesis itself? The rights which Nozick thinks would be violated by a redistributive move are property rights. I shall make no criticism here of his account of the source and content of those rights. However,

it is

Judith Jarvis Thomson

142

perhaps worth just drawing attention to the fact that Nozick allows that title to property is clouded in existing states: He grants that injustices lie behind their current property distributions.'* This means, then, that a redistributive move in an existing state may very well not really conflict with property rights, and in fact there is no practical moral lesson about redistributive moves in existing state to be learned from Nozick’s book. In light of that fact we had better take Nozick to be speaking only of governments in “ideal” states—states in which property rights are not clouded;

more

precisely,

states in which

the distribution

of

property satisfies Nozick’s principles of distributive justice. One thing we know is that there are circumstances in which it is morally permissible, and hence no violation of any right, to take from Smith—even against his wishes—to give to Jones. Any case in which Jones needs something, and he needs it for life, and the only way of providing him with it is by taking it from Smith, and Smith places at most little value on it, is such a case. Suppose we live in an ideal state. Then there are circumstances in which agents of government can arrange this redistribution. Would that count as imposing a tax for the purpose of redistribution? It is hard to see why not. Something

of great interest comes

out if we

consider,

now,

a

second kind of case. Suppose there is an “ideal” state of only eleven people. One person will die if he is not provided with a certain amount of a particular drug. Eight of the remaining ten people would very much like for him to get that amount of that drug. (I make it a large majority, though I have no very clear idea how its being a majority matters. I also made the sick one be a citizen of the state, though I have no very clear idea how his being so matters.) The eight can scrape together the needed amount of the drug from among their own supplies, but to do so would require each of them to deplete his supply drastically—not to the point at which any of their lives is at risk, but to the point at which they would have a bare sufficiency. By contrast, the remaining two people have ample supplies; each of them could, himself, easily supply the needed amount. But these two individuals refuse to contribute. This case is different from (A) and (B): In this case, by contrast with those we have been looking at, the agents do not have to take anything from anyone else in order to meet the need of the

Some Ruminations on Rights

143

eleventh. They can meet his need themselves. Is it the case that if they want his need met, they must meet it themselves? On Nozick’s view they must. On Nozick’s view, the meeting of human needs is a

consumer good like any other. Or rather like any other expensive consumer good.17 If you want a color television set, and buying one will deplete your assets to the point at which you have a bare sufficiency to live on, well, so be it, it is up to you whether or not a

color television is worth that much to you. You certainly cannot take from anyone else in order to be able to buy one without having to deplete your assets! Similarly for the meeting of human needs. It is plain enough, however, that the meeting of human needs is not a consumer good like any other. I hasten to say I have no account of what marks needs off from mere wants. But certainly if a man will die unless he gets something, then that thing is something he needs. And we know that if we cannot provide him with that thing which he needs for life without taking from Smith, then—at least in such cases as Smith places at most little value on it—it is permissible for us to take from Smith. This marks a difference. For even if you cannot get a color television at all unless you take from someone else, then all the same you cannot take from him in order

to buy one, even if he has plenty of money. But is this difference relevant to the case at hand? Suppose Nozick were to grant it, and say: “Very well, the meeting of human needs is not a consumer good like any other—it differs from color televisions in the way you indicate. [He would thus acknowledge that property rights are not infinitely stringent.] Still, if the eight can meet the need of the eleventh by themselves, how can they presume to take from the two who do not care if the need is met?” Nozick might go on: “In those cases you have been describing in which Jones needs something for life, and it is permissible to take it from Smith and give it to Jones, what overrides Smith’s right that the thing not be taken from him is not the mere fact that Jones needs it for life, but the complex fact that Jones needs it for life and we can provide it in no other way than by taking it from Smith. Suppose what Jones needs for life is a drug which you have ample supplies of and Smith has only a little of; surely you cannot say: ‘How nice! The fact that Jones needs that drug for life overrides Smith’s right that his drug not be taken away from him, so I do not have to provide for Jones myself—I can take from Smith to provide for Jones.’ Surely

144

Judith Jarvis Thomson

you cannot take from Smith if you have plenty yourself! But if it is the complex fact I pointed to which is doing the real work in the cases you describe—if it is that fact which really does the overriding—then those cases have no bearing at all on the case now at hand. So I repeat: Given the eight can meet the need of the eleventh by themselves, how can they presume to take from the two who do not care if the need is met?” Nozick might go on: “And wouldn't it be like that in ideal states generally? In other words, that those who refuse to contribute would be few enough so that those willing to contribute could, by themselves, meet such needs as they wanted met?!® If so, nothing

so far said counts against my thesis that a government of an ideal state which imposes taxes for the purpose of redistribution violates the rights of its citizens.” It is hard to know what to say about people who would live in “ideal” states if there were any. What would they be like? But I join the many other readers of Anarchy, State, and Utopia who have their doubts.!% Moreover, the instability of the situation I invited you to imagine is obvious. Suppose that if only one of the eight ceased to be willing to contribute, then the remaining seven could no longer meet the need of the eleventh by themselves, so that the case would then collapse into a case of the kind we were looking at earlier. Would it not pay them to draw straws to choose one among them to volunteer to say he has changed his mind? Then, instead of the eight having to deplete their own supplies of the drug, the remaining seven could take from the two who are rich in it. Would they even need to draw straws to choose a liar? If the eight were given the information that if there were only seven, the seven could take from the two, would there not be at least one who would really change his mind? It would be an odd moral theory that yielded either the conclusion that the eight must not be given that information, or the conclusion that the eight must meet the need of the eleventh by themselves unless they are lucky enough to get that information, in which case they do not have to. All the same, the question my hypothetical Nozick raises is a hard one. If the eight can meet the need of the eleventh by themselves, how can they presume to take from the two who do not care if the

Some Ruminations on Rights

145

need is met? I am sure that the instability I pointed to should figure in the answer, but I do not see clearly how. One's intuition, I think, is that it just is not fair that the eight should have to deplete their supplies so drastically in order to meet the need of the eleventh. The source of that intuition is, I think,

this: One thinks of the need as having to be met by the citizens of that state, and therefore thinks that the burden of meeting it should

be shared, as in the case of any other project which the citizens have to carry out.

Why does the need have to be met by the citizens of the state? By hypothesis, the need is one which can be met by them at little cost to any of them, for each of the two with ample supplies could easily meet the need by himself. But if a need can be met at little cost—remembering that it is a need for something to sustain life itself—then it is indecent that the need not be met. (I here say something of a community which would be true of an individual.) So it has to be met. So, as in the case of any other project which the citizens of a state have to carry out, it is only fair that the burden of doing so be shared. But if the two with ample supplies give nothing at all, the entire burden falls on the remaining eight, who can least

afford to share it. Hence it is not fair that it should fall on them alone. If the two with ample supplies can each meet the need at very little cost, then it makes little difference whether or not one takes the whole amount needed from one, or takes half the needed

amount from each, or imposes a proportional tax on all ten of them, under which the two pay the lion’s share, and the remaining eight pay a grain or two each. Another possibility is that each of the two might be ordered to provide half, and the remaining eight suffer a comparable loss by having to pay the two, or the community at large, in some commodity other than the drug. There are cases, however, in which it will make a difference. Let

us look back again at case (A). I said that if we go ahead, and break into the box and give the drug to the child, we shall have later to pay you some, if not all, of the cost we imposed on you by doing so. Kindhearted students sometimes look askance at this proposal—for ifwe go ahead, we do so to save the life ofa child, after all. But the

idea that the burdens must be fairly shared cuts both ways. If we go

146

Judith Jarvis Thomson

ahead, we must share, with you, the burden of meeting that child’s

need: We must not impose the entire burden of meeting its need on you. If I am right, it follows that we need not reimburse you for the entire cost of repairing or replacing the box and replacing the drug, but only such part of that cost as leaves you to pay the same amount as each of the rest of us. It is for this reason that I preferred not to speak of that payment as compensation:

its point is not so much to

compensate for a loss as to reduce that loss to the point at which it is no greater than ours. I should stress, however, that the cases I have drawn attention to

are all cases in which the redistribution aimed at is aimed at in order to meet human needs. None of them is a case in which the redistribution aimed at is aimed at simply in order that there be less inequality. Taxation for redistribution for that purpose is a wholly different matter. NOTES

1. R. Nozick, Anarchy, State, and Utopia 171-74 (1974). 2. A typical example is the following: You are a sheriff in a small southern town. A murder has been committed, and you do not have the least idea who committed it, but a lynch mob will hang five others ifyou do not fasten the crime on one individual. 3. This is a simplified account of what I mean by “infringe a right.” For example, someone might have a right that such and such shall be the case, and we might bring about that it is not the case, but our act might at one and the same time bring about both that it is not the case and that he no longer has a right that it is the case. It is possible that in some cases (that is, those in which we infringe no other right of his in bringing about that he no longer has that right), no right of his is “infringed,” in the sense I mean this word to have. But the difficulties I point to here are of no interest for present purposes, so I ignore them. 4. It is worth noticing, in passing, that for present purposes it would not matter if Iwere wrong to make this assumption. There are acts which Nozick says are violations of rights. I shall say that some of them, anway, are nonwrongful infringements of rights. Suppose I am mistaken in this way: That what I should have said is that they are wrongful, though excusable, infringements of rights. Since Nozick plainly thinks those acts are not merely wrongful, but inexcusable, what I shall say would still conflict with what he thinks.

Some Ruminations on Rights 5. back, 6. 7.

147

It is of the greatest interest whether or not we have to pay all this a question to which I shall return later. See text & note 19 infra. See J. Thompson, Self-Defense and Rights (1976). See discussion at conclusion of text.

8. R. Nozick, supra note 1, at 29.

SE WGh ESP 10. Id. at 30n. Li Td: 12. Id. at 41.

13. Id. (emphasis in original). 14. Or something like (T), for of course we shall want to allow for irrationality, preferences immorally inculcated, and so forth. I do not for a

moment want to suggest that I think the proper spelling out of the thesis would be easy; it is merely that the difficulties are irrelevant for present purposes. 15. Surely, however, it is not infinitely stringent: I should imagine it is overrideable, even if not overridden in the cases at which we are looking. 16. See R. Nozick supra note 1, at 152-53. 17. See id. at 160-64, 168-72. 18. See id. at 182, 265-68.

19. Thomas Nagel, in his review of Nozick’s book, makes the interesting suggestion that insisting that contributions be voluntary is “an excessively demanding moral position” and that “excessive demands on the will. . . can be more irksome than automatic demands on the purse.” Nagel, Book Review, 85 Yale L.J. 136, 14546 (1975).

S Natural Rights, Equality, and the Minimal State SAMUEL

SCHEFFLER!

INTRODUCTION

The idea of equality exerts considerable influence on our moral imaginations, yet it has remained philosophically elusive. Although men and women have thought equality worth dying for, philosophers have been largely unable to give any systematic account for its importance as a moral ideal, or of its function in moral and political theory. Seizing on this fact, Robert Nozick maintains that while “there is no lack of unsupported statements of apresumption in favor of equality,”? there is “a surprising dearth of arguments’ (p. 233) capable of supporting such presumption. According to the “entitlement conception of justice” which Nozick presents in Anarchy, State, and Utopia, the non-voluntary redistribution of income to achieve “equality of material condition” (p. 232) is morally impermissible.

In

fact,

Nozick’s

argument

is even

more

far-

reaching. He believes that any non-voluntary redistribution of income is morally impermissible. In particular, he believes that it is morally illegitimate for any government to tax some of its citizens in order to provide food, shelter, medical care or social services for other, less fortunate citizens. Nozick presents his argument from the standpoint of natural rights theory. In this discussion, I want to examine the structure and content of Nozick’s argument. I will argue that within natural rights 148

Natural Rights, Equality, and the Minimal State

149

theory, there is indeed a strong argument to be made for the extensive redistribution of income, and even for the goal of equality or near-equality of material condition. More specifically, I will examine the way in which Nozick’s political theory depends upon his moral theory, and the way in which his moral theory incorporates a particular theory of personal rights. I will argue that by adopting a different theory of personal rights, we may arrive at a different moral theory, and ultimately a different theory of the state. Moreover, I will try to show that this alternative theory of rights, with its moral and political consequences, is both independently plausible and more consistent (than Nozick’s theory of rights) with Nozick’s own remarks about the moral basis of rights. Finally, I will examine the extent of the redistribution which is warranted under the alternative theory, and I will introduce some further considerations bearing on the legitimacy of egalitarian redistribution. THE

ROLE

OF MORAL

THEORY

IN NOZICK’S

ARGUMENT

Non-voluntary redistribution of income is impermissible, on Nozick’s view, because it violates the rights of those individuals whose income is redistributed. Other coercive governmental mechanisms designed to achieve egalitarian goals, such as the imposition of wage ceilings or minima, are also said to be morally impermissible. For, it is claimed, they violate the rights of those people who would either have received more for their services, or paid less for the services of others, in the absence of governmental

regulation. On Nozick’s view, the activity of the state is limited in such cases by the moral rights of individuals; political design is constrained by moral theory. Thus the burden of supporting Nozick’s conclusion that the redistributive state is unjustified, falls

squarely on his moral theory in general, and on his theory of individual rights in particular. Given the structural importance of the moral theory for Nozick’s argument, it is presented with surprising haste, and in little detail. He concedes this point at the outset:

The completely accurate statement of the moral background, including the precise statement of the moral theory and its underlying basis, would

150

Samuel Scheffler

require a full-scale presentation and is a task for another time. (A lifetime?) That task is so crucial, and the gap left without its accomplishment is so yawning, that it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise. (p. 9)

Nozick is of course quite right not to take much comfort from the fact that Locke’s moral theory is similarly inadequate. Nozick is himself working in the Lockean tradition, and he can hardly hope to defend a weakness in his own theory by pointing out that the very same weakness infects the entire tradition on which his work is based. Still, Nozick does say some things about his moral theory, and we should examine those things in order to gain insight into the moral assumptions upon which his political structure is built. According to Nozick, each individual has a right to be free from force, fraud, and physical aggression. In addition, Nozick seems to

follow Locke

in holding that each person

has a right to exact

compensation from someone who violates his rights. Also, individu-

als acquire rights to whatever property they come to hold in accordance with the rules specified by the entitlement conception of justice. A property right in X is the right to dispose of X as ones sees fit (provided that such disposal does not itself violate anyone else’s rights), and interference with such rights through the use of force, fraud, or physical aggression is prohibited. In short, the Nozickian rights are (roughly) the Lockean rights: to be free from force or fraud directed against one’s “life, health, liberty, or possessions.” (quoted in Nozick, p. 10) Nozick says that an individual's rights define a moral boundary around the person. These boundaries constrain the permissible behavior of every agent. To put it another way, the rights of other people determine moral side constraints upon the activity of each individual. The choice of the expression “side constraints” is made to emphasize the point that, when a person acts, the non-violation of other people’s rights must take priority over the pursuit of any goal: even the goal of minimizing the total number of rights violated in the society. Thus Nozick writes: This view differs from one that tries to build the side constraints into the

goal G. The side-constraint view forbids you to violate these moral con-

Natural Rights, Equality, and the Minimal State

151

straints in the pursuit of your goals; whereas the view whose objective is to minimize the violation of these rights allows you to violate the rights (the constraints) in order to lessen their total violation in the society. (p. 29)

Given this conception of the structure and content of moral theory, it is not difficult to understand why, on Nozick’s view, the non-voluntary redistribution of income is morally impermissible.? By using the threat of force to coerce some people into contributing to the welfare of others, a government

violates the rights of the

people who are coerced. On the side-constraint view, such violation is morally impermissible even if it would reduce the total number of rights violated in the society. It is impermissible, in particular, even if the failure of the government to coerce A will have the consequence that the unaided citizen B will eventually have many more of his rights violated (by third parties), than the number of rights which the government would violate by taxing A to support B. It is an important claimof Nozick’s moral theory that “your being forced to contribute

to anothers

welfare

violates

your

rights, whereas

someone else’s not providing you with things you need greatly, including things essential to the protection of your rights, does not itself violate your rights, even though it avoids making it more difficult for someone else to violate them.” (p. 30) It is an extraordinary but apparent consequence of this view that for a government to tax each of its able-bodied citizens five dollars a year to support cripples and orphans would violate the rights of the able-bodied, and would be morally impermissible, whereas to refrain from taxation even if it meant allowing the cripples and orphans to starve to death would be the morally required governmental policy.4 Since the minimal state is built on the foundation of this theory of individual rights, we should look more closely at Nozick’s conception of rights. Contemporary philosophers who ,choose to work within the natural rights tradition need to explicate their use of natural rights terminology. Given the metaphysical assocations of the tradition, such philosophers must explain what they mean by assigning rights to people. They must, further, say something about the source of these rights, and they must deal with a variety of epistemic questions. How do we know what rights people have? What sorts of evidence justify us in believing that people do have certain rights but do not have certain others?

152

Samuel Scheffler

Nozick has painfully little to say about most of these issues. His book, he admits, “does not present a precise theory of the moral basis of individual rights.” (p. xiv) Without being mean-spirited, it bears noting that the omission is serious. It is serious not only because Nozick builds his own political theory on his conception of individual rights, but also because competing political theories can be built on competing conceptions of individual rights. Unless we have some answers to questions about the nature and source of those rights, we can have no way of deciding among the rival conceptions and theories. Actually, Nozick does say some things about the basis of natural rights, and I will want to examine what he

says very carefully. First, however, I want to sketch an alternative conception of individual rights. Although my presentation of the alternative conception will not be complete, I hope to establish the prima facie defensibility of the view. I will then return to Nozick’s remarks about the moral basis of rights, and see whether his conception of individual rights or the alternative conception rests more comfortably on the moral basis as he describes it. AN ALTERNATIVE

CONCEPTION

OF INDIVIDUAL

RIGHTS

In presenting this conception, I shall understand the assertion that a person has a natural right to X to mean that that person has a natural prima facie justified claim to X. The term “prima facie” is used to indicate that such claims are overridable, but I understand them to be overridable only in extreme circumstances. The force of the word “natural” is to express the idea that in order to have such a right, it is sufficient for a person to possess certain natural attributes. The possession of natural rights is thus in no way dependent upon the existence of a legal system or any other social artifact. I do not here specify which natural attributes are sufficient conditions for the possession of natural rights. Familiar suggestions are rationality, the capacity for self-consciousness, and the capacity for forming a plan of life. Alternatively, Rawls suggests “the capacity for moral personality.”> I assume that some such attribute or set of attributes is sufficient, and I do not discuss the question whether the same attributes are necessary. This interpretation of natural rights is in accord with the interpretation articulated by Rawls:

Natural Rights, Equality, and the Minimal State

153

[Natural rights are] claims [which] depend solely on certain natural attributes the presence of which can be ascertained by natural reason pursuing common sense methods of inquiry. The existence of these attributes and the claims based upon them is established independently from social conventions and legal norms. The propriety of the term “natural” is that it suggests the contrast between the rights identified by the theory of justice and the rights defined by law and custom. But more than this, the concept ofnatural rights includes the idea that these rights are assigned in the first instance to persons, and that they are given a special weight. Claims easily overridden for other values are not natural rights.®

According to the alternative conception, every person has a natural right to a sufficient share of every distributable good whose enjoyment is a necessary condition of the person’s having a reasonable chance of living a decent and fulfilling life, subject only to the following qualification. No person has a natural right to any good which can only be obtained by preventing someone else from having a reasonable chance of living a decent and fulfilling life. A sufficient share of a necessary good is defined as a share of that good which is large enough to satisfy the necessary condition. In other words, A has a sufficient share of a necessary good G if A has at least the minimum amount of G which is necessary in order to have a reasonable chance of living the kind of life in question. The restriction to distributable goods has the consequence that people are not said to have a natural right to good health or a good life, for these are not distributable goods. Rather, each person is said to have a right to adequate food, clothing, shelter, and medical care.” In addition,

each has a natural right to a substantial degree of personal liberty.® Precisely what amount of each of these goods constitutes a sufficient share, as defined above, is a matter of empirical investigation. The

stipulation that each person has a right to a sufficient share of all those goods whose enjoyment is a necessary condition of having a reasonable chance of living a decent and fulfilling life means that a good is not shown to be unnecessary, and a share is not shown to be too large, by the mere fact that some extraordinary person may have managed, against the odds, to live a decent and fulfilling life without the good in question, or with a lesser share. Conversely, neither individual shares nor the total package of goods to which a person has rights is shown to be too meager by the mere fact that some people may enjoy all of these goods and still fail to achieve decent

154 and fulfilling lives.

Samuel Scheffler For, according

to this conception

of rights,

people have rights to those goods which are necessary (not sufficient) for having a reasonable chance (not an absolute guarantee) of living such lives. (In any case, there is no known distributable good whose enjoyment constitutes a guaranteed sufficient condition for living a decent and fulfilling life.) Several features of this conception of natural rights require comment. First, it is clear that this conception takes a dimmer view of property rights than does the Lockean conception. On the alternative conception, each person has a natural right to such material goods as are necessary to insure him a reasonable chance of living a certain kind of life. Beyond that, his property rights derive from his right to liberty, but since the latter is limited, so is the former. This

point will be treated with greater thoroughness in the course of the discussion that follows. Second, assume for the moment that the alternative conception is correct, and that people really do have the natural rights which it assigns to them. That assumption, if true, constitutes a prima facie justification for the establishment of governmental mechanisms which would insure the satisfaction of those rights which the alternative conception specifies. It constitutes only a prima facie justification because it might not follow simply from the fact that people had such rights that it was possible or permissible for a government to enforce them all. Thus a full-fledged argument would have to address itself to this question. Nevertheless, we can safely say that the correctness of the alternative conception would provide the foundation for a natural rights argument to the effect that governmental mechanisms should be established to insure that no citizen lacks adequate food, clothing, shelter, or medical care, as well as to insure that citizens enjoy substantial personal liberty. Third, it appears on the face of it that a government could insure the rights of all its citizens without violating the rights of any. Although it is true that the mechanisms necessary to guarantee the satisfaction of the “welfare rights” would require some restrictions on personal liberty, it is not the case that any restriction on personal liberty constitutes a violation of rights. For according to the alternative conception of rights, individuals have a right to whatever liberty is necessary to insure a reasonable chance of living a decent and fulfilling life. While this entails the right to a substantial degree of

Natural Rights, Equality, and the Minimal State

155

personal liberty, it does not entail a right to unlimited liberty, for unlimited liberty is not necessary to insure a reasonable chance of living such a life. In particular, the kind of mechanisms necessary to guarantee the satisfaction of the welfare rights of all would not violate the degree of personal liberty which the alternative conception assigns to individuals by right. To see this we have only to observe that the taxation of wealthy North Americans can hardly be said to deprive them of that degree of personal liberty which is necessary in order to have a reasonable chance of living decent lives. Fourth, the last two points suggest that if we incorporate the alternative conception of rights into a side-constraint structure like Nozick’s, the redistribution of income emerges as morally permissible. Such a structure, as we have seen, forbids the violation of any person’s rights as a means to maximizing some desired end. If indeed a government could enforce all the rights assigned by the alternative conception without violating any, that shows that by joining our moral content (the alternative conception) to Nozick’s moral structure (the side-constraint), we arrive at a side-constraint

theory which judges redistribution not to violate anyone’s rights. Thus the alternative conception embodies a rejection of Nozick’s moral content, but it is compatible with his moral structure. We will

have occasion later to consider and reject an argument by Nozick that the side-constraint structure entails his moral content. Fifth, it appears that from the standpoint of the alternative conception, the minimal state described by Nozick is seen not only as protecting the rights of its citizens to liberty, but also as guaranteeing them a greater degree of liberty than they can claim by natural right.? On the other hand, the minimal state permits the welfare

rights of its citizens to go unsatisfied, provided only that their non-satisfaction does not result from some violation of the victims’ Lockean rights. Thus, if the claim that a “welfare state” could guarantee all the rights of its citizens without violating any is correct, then there is a prima facie case for asserting that, from the

standpoint of the alternative conception, the welfare state (which protects all the rights of its citizens) is morally superior to the minimal state (which protects only some of those rights).?° Sixth, the alternative conception is not embarassed by Nozick-

style objections to the effect that the non-voluntary redistribution of welfare goods is morally continuous with the forcible redistribution

156

Samuel Scheffler

of bodily parts or sexual partners. It is instructive to see why this is so; consider for a moment the question of sexual experience. On the alternative conception, there is no natural right to sexual experience (or to partners needed to achieve sexual experience), for at least three reasons. First, insofar as it is plausible to speak of some kind of sexual experience as a distributable good (a government could coerce some people into serving as sexual partners for others), it is in no way plausible to claim that such experience is necessary to insure a reasonable chance of living a decent and fulfilling life. Coerced sexual activity could only degrade its participants, and would more likely reduce than promote their chances of living well. The bonds of intimacy and trust which unite real lovers are in no sense distributable, and this suffices to show that the kind of sexual

experience which we value most dearly lies beyond the scope of justice. Second, even this kind of sexual experience cannot truly be said to be necessary for having a reasonable chance of living the sort of life in question. While experience of this kind may enhance one’s chances of living well, it is hardly on a par with food or medical care. Moreover, if sexual experience of any kind were necessary—if, for example, people who didn't have sexual intercourse at least three times a day would die—we might well have different intuitions about the permissibility of coerced sexual partnership. But also if this were the case, it is worth wondering whether mankind as a species would ever have begun to use sexual activity as a medium for communicating affection and need and trust to the extent that it actually does.!! The third reason why there is no natural right to sexual experience on the alternative conception is that this conception denies people rights to any goods which can only be obtained by preventing someone else from having a reasonable chance to live a decent and fulfilling life. Coerced sexual activity would violate this provision, both by the extent of the restrictions on personal liberty which it would require, and by the violence it would do to people’s perceptions of themselves and their own personalities. Seventh, the alternative conception of rights provides, as we have seen, a prima facie justification for the establishment of governmental mechanisms designed to insure people’s welfare rights, as well as their rights to liberty. This conception does not rule out the possibility, however, that additional arguments could establish that governments should guarantee even more liberty and/ more mate-

Natural Rights, Equality, and the Minimal State

157

rial goods to each of its citizens, if that could be done without violating rights. In other words, additional arguments might be brought to bear to urge that governments should protect certain kinds of liberty more extensively, or that governments should enforce a still greater equality of material condition, than would result just from the guaranteeing by the state of each individual's natural rights. The alternative conception does not rule out arguments to this effect; it just specifies that they will not be arguments from people's natural rights. For on the alternative conception, people’s natural rights are satisfied and exhausted once their minimum welfare and liberty needs are met.!” I will return to the question of whether there are additional good arguments in favor of material equality, and whether such equality could be achieved without violating natural rights. First, however, it is time to examine Nozick’s remarks about the moral basis of natural rights, and to

see whether his conception of rights or the alternative conception is a more accurate reflection of that basis. Then I will consider briefly some of the major objections to the alternative conception of rights; I will conclude by returning to the question whether there is a case to be made for material equality beyond that degree of equality which could be justified by the alternative conception alone. THE

MORAL

BASIS

OF NATURAL

RIGHTS

The alternative conception of rights, as it has been described, does

not explain the moral basis of the rights it assigns. While it identifies (roughly) the natural attributes whose possession is a sufficient condition of having rights, and while it provides a fairly clear criterion for deciding which rights people have, it does not explain why it is that individuals who possess the attributes in question should be said to have those rights. As we have seen, Nozick concedes that his book does not include a detailed account of the moral basis of those rights which his conception assigns. Yet those comments which he does make about the moral basis are suggestive, and they provide sufficient ground for making a tentative choice between the Lockean conception of rights and the alternative conception. In other words, proceeding on the assumption that the moral source of individual rights is in fact something like Nozick describes it as being, we can see whether the Lockean conception or

158

Samuel Scheffler

the alternative conception provides a more accurate specification of the rights which would flow from such a source. Of course, a complete presentation of the alternative conception would have to include a positive account of its own of the moral basis. Nozick approaches the problem of identifying the moral basis of rights by considering the question of which natural attributes are necessary and/or sufficient for possessing rights. He argues that there must be a connection between these characteristics and the moral basis of rights: . in virtue of precisely what characteristics of persons are there moral constraints on how they may treat each other or be treated? We also want to understand why these characteristics connect with these constraints . . . It would appear that a person’s characteristics, by virtue of which others are constrained in their treatment of him, must themselves be valuable charac-

teristics. How else are we emerges from them? (p. 48)

to understand

why something

so valuable

Nozick rejects various common suggestions about what the relevant characteristic(s) might be, and concludes with a proposal of his own: I conjecture that the answer is connected with that elusive and difficult notion: the meaning of life. A person’s shaping his life in accordance with some overall plan is his way of giving meaning to his life; only a being with the capacity to so shape his life can have or strive for meaningful life . . . This notion, we should note, has the right “feel” as something that might help to bridge an “is-ought” gap; it appropriately seems to straddle the two.

(p. 50) Nozick concedes that there are difficulties with this answer, and

that the notion of “the meaning of life” requires fuller elaboration. For our purposes, what is important is that Nozick believes that the moral basis of rights has to do with the capacity to live a meaningful life. For then we may ask, what rights would such a basis be the basis of? In other words, if the capacity to live a meaningful life is a uniquely valuable characteristic, and if we say that beings with this

characteristic have rights, in virtue of which there are constraints on

the way others must behave, then presumably the function of the rights is to safeguard the ability of beings with this valuable charac-

Natural Rights, Equality, and the Minimal State

159

teristic to develop it. To say that the valuable capacity to live a meaningful life is the basis of rights, is presumably to suggest that the moral protections and guarantees which rights assign to people may be understood as jealous of people’s ability to actually live meaningful lives. But then it seems clear that the alternative conception of rights is a much more accurate specification than the Lockean conception of the rights which people actually have. For the alternative conception assigns to each individual the right to a sufficient share of all distributable goods whose enjoyment is necessary to have a reasonable chance of living a decent and fulfilling life. Now whatever a meaningful life may turn out to be, it seems reasonable enough to suggest that any distributable good necessary for living a decent and fulfilling life (such as food) will also be necessary for living a meaningful life. In fact, it seems reasonable to suggest that the distributable goods necessary to have a reasonable chance of living a meaningful life are just the same as the goods necessary to live a decent and fulfilling life. If that is so, then the alternative conception of rights is clearly the correct one: for it alone insures that all the necessary material conditions for having a reasonable chance of living a meaningful life will be met. Even if, as seems unlikely, the goods necessary for living a meaningful life are not the same as the goods necessary to live a decent and fulfilling life (if, for example, there are some additional goods necessary for the former), it is still the case that the alternative conception is clearly superior to the Lockean conception, which denies people rights to goods like food and medical care which are certainly necessary for living a meaningful life. On Nozick’s own view of the moral basis of rights, then, we see that the alternative conception

emerges

as superior

to the

Nozickian

conception

of

which rights people actually have. In fact, Nozick’s overall view begins to appear irrational: how can one hold both that rights are necessary to protect and guarantee the valuable capacity to live a meaningful life, and that people only have rights to some of the distributable goods which are necessary in order to have any chance of living meaningful lives? Of course, it would not be irrational to hold these two views in conjunction if one believed, as Nozick presumably does, that one could not succeed in providing sufficient shares of all necessary distributable goods to all people—that one could only provide sufficient shares of the welfare goods to some by

160

Samuel Scheffler

denying sufficient shares of liberty to the others. But, as I have argued, it is simply false that the restrictions on liberty necessary to guarantee the welfare rights of all would be so severe as to prevent the victims of, say, taxation, from living decent and fulfilling lives. Nor is it any less false that such taxation would prevent them from living meaningful lives. If the meaning of life is our concern, then starvation, not taxation, is our worthy foe.

In light of these considerations, we need not be impressed by Nozick’s “argument from moral form to moral content.” (p. 34) He says that “the form of morality includes F (moral side constraints),” (p. 34) that “the best explanation of morality’s being F” (including side constraints) is “a strong statement of the distinctness of individuals” (p. 34), and that given this explanation of moral form, there follows a particular moral content: namely “the libertarian constraint” which is determined by the Lockean conception of rights. For, he believes, only the Lockean conception of rights reflects the distinctness of persons. The redistributive state, he says, ignores the fact that “there are only individual people, different individual people, with their own individual lives,” (p. 33) and that “there is no justified sacrifice of some of us for others.” (p. 33) We reject this argument, for we believe that even if one adopts a side-constraint structure for moral theory, and even if one does so out of a belief that a side-constraint structure best expresses the distinctness of every person, then the rational moral content to adopt will be that set of side constraints which is determined by the alternative conception of rights, and not the Lockean conception. We believe, in other

words,

that it is the alternative

conception,

with

its

protections and guarantees of welfare as well as liberty, which truly cherishes each and every individual human life. We deny that the political structures necessary to implement the alternative conception involve the sacrifice of some people for the sake of others. We maintain, on the contrary, that only the alternative conception guarantees to each person the chance to live a life that can be looked back on without bitterness or regret.1% SOME

CRITICISMS

OF THE

ALTERNATIVE

CONCEPTION

Thus far I have presented the alternative conception without considering the criticisms which can be directed against it. Although I

Natural Rights, Equality, and the Minimal State

161

will not now try to give a full defense of the alternative conception, it is important to at least indicate the sort of replies which could be offered to some major objections. One such objection focuses on the fact that the distributable goods to which the alternative conception assigns people rights are not, in most cases, naturally obtainable. Medical care does not grow on trees, and while some foods do, in

practice most of the welfare goods which people actually obtain have been produced or prepared through the labor of others. Thus, it may be said, the alternative conception assigns people rights to goods which, in practice, will frequently be the fruit of other people’s labor. And in so doing, it surely infringes the liberty of the laborers. This objection misunderstands the moral picture painted by the alternative conception. The alternative conception does not divide the world into laborers and consumers. The fact that the welfare goods are obtainable in practice only through the mediation of a complex society. of working men and women is certainly of significance for the alternative conception. But its significance is not to show that people do not, after all, have the rights which the alternative conception assigns to them. Rather, its significance is to

show that individuals with rights also have duties: duties, in particular, to contribute their labor, according to their talents and abilities, to the enhanced functioning of the society in which they

live. Let us say that a society is ordered in part by the alternative conception if its government guarantees the satisfaction of all the rights which the alternative conception assigns. In such a society, the government would not force one group of people to work so that another group could live idle and secure. Rather, such a government would guarantee, through the establishment of institutions like taxation, that neither helpless persons, nor those ablebodied persons who were willing to work, would ever be allowed to die for lack of food, clothing, or medical care. (The refusal of an ablebodied

person to do any kind of work might suffice to override that person's natural welfare rights.) In such a society, as we have already insisted, it would indeed be necessary to restrict the liberty of citizens. For example, no citizen would be at liberty to enjoy unlimited material gain while others were starving. But, as we have argued, this kind of restriction on liberty does not violate anyone's natural rights. A second objection to the alternative conception focuses on the

162

Samuel Scheffler

structure of the rights assigned. This objection notices that the welfare rights are structured differently from the rights to liberty. While the latter prohibit certain kinds of direct aggression against the individual, and correlate fairly neatly with the moral duties of others, the welfare rights determine constraints on our behavior

that are notably more complex. That is, they seem to require that no person consume more than he is entitled to by natural right so long as other members of his society have some of their natural rights as yet unsatisfied. Moreover, the alternative conception seems to suggest that a person sitting alone in his room, apparently minding his own business, can, indirectly at least, violate the rights of people he has never met just by consuming more than a certain amount. The precise degree of indirection involved in such violations can be emphasized by pointing out the difficulty in specifying the particular people whose rights are violated by this solitary overconsumer (all of his fellow citizens whose rights are not yet satisfied, perhaps), and by pointing out that, in contrast to the libertarian rights, an offender against welfare rights might cease his offensive behavior without any benefit necessarily accruing to the victim. The alternative conception concedes these distinctions between the rights to liberty and the welfare rights, but does not view them as objections. Liberty and food are different sorts of good, and so it is not suprising that the rights to each should be differently structured.14 Despite these differences, both kinds of rights are rights in good standing; both conform to the precise definition provided by the alternative conception, and both constrain our behavior and limit the area within which we may permissibly do as we please. The fact that the welfare rights constrain our behavior in a way that is more subtle and complex than the libertarian rights does not make them any less significant, from a moral point of view. A third objection maintains that the alternative conception violates moral intuition by allowing minor infringements of liberty provided that they do not prevent the victims from having a reasonable chance of living decent and fulfilling lives. If Iwalk up to you on the street and punch you in the nose, you may still walk away with a reasonable chance of living a decent and fulfilling life. Thus, this objection urges, the alternative conception is too weak in its protection of personal liberty, for it would not rule out such offenses as a random punch in the nose.

Natural Rights, Equality, and the Minimal State

163

This objection makes the mistake of assuming that the alternative conception of rights constitutes a complete moral theory. This is not true; any conception of rights is just one component of such a theory. Such a conception might be combined with other general moral injunctions in a variety of ways, as Nozick himself notes. (p. 29) Within a side-constraint structure, for example, a moral theory might include such rules as: so long as you do not violate any of the rights specified by the alternative conception, act so as to minimize suffering, or, so long as you do not violate any rights, treat all people with respect—and so on. Even when incorporated into a sideconstraint structure, what the rights specified by the alternative conception do is to prohibit certain kinds of behavior, and thus to protect certain central areas of human activity. This obviously does not entail, however, that all other kinds of behavior are morally permissible, or that the noncentral areas of human activity are fair game for intruders. It is the task of the complete moral theory to deal with this question thoroughly. Before proceeding to the final section of this paper, one further comment about Nozick’s argument is called for. In the discussion so far, I have avoided direct consideration

of Nozick’s “entitlement

theory” of distributive justice. It should be obvious, however, that a rejection of the entitlement theory as stated is implicit in the argument of this paper. By suggesting that the rights specified by the alternative conception set limits to the kinds of voluntary behavior that are morally permissible, the argument of this paper circumscribes the area within which voluntary exchanges may take place in a way that is clearly incompatible with the entitlement theory as Nozick presents it. The alternative conception does not deny that entitlement considerations are ever morally relevant, but it stipulates that if they are, it is only after the welfare rights of all have been satisfied. The relative weight of entitlement considerations as compared to egalitarian considerations in the postwelfare stage is discussed in the final section. BEYOND WELFARE: THE LEGITIMACY EGALITARIAN REDISTRIBUTION

OF

In a society blessed by abundance, it may be possible to satisfy the welfare rights of all people while permitting the continued existence

164

Samuel Scheffler

of vast inequalities of material condition. Earlier, I suggested that while no arguments from natural rights could be brought to bear in favor of still further egalitarian redistribution, there remained the

possibility that other moral arguments toward this end might be brought forward. I should like at this point to briefly advance two such considerations. Since further redistribution would require still greater restrictions on certain kinds of liberty, the considerations I shall discuss would need to be carefully weighed against considerations of liberty in order to arrive at a final judgment about the legitimacy of such further redistribution. In the space available, I shall simply mention the two egalitarian considerations, and indicate my inclination about the direction in which a final balancing would go. The argument will not be exhaustive, and people with contrary inclinations will find wide room for disagreement. The first consideration pertains to the stability of an inegalitarian society from the standpoint of rights. We have considerable evidence that in most societies there is a high correlation between wealth and political power. In light of this high correlation, we have reason to wonder whether a highly inegalitarian society would be stable with respect to the rights of all. In other words, since some people in such a society would be much more powerful than others, we have some reason to worry whether such people would find it tempting to exploit the less powerful and deprive them of their natural rights. There is some evidence that a radically inegalitarian welfare society would be unstable in this sense. If this is in fact the case, then the desire to satisfy the rights of all might argue for further redistribution beyond the minimal amount which would be technically necessary to satisfy those rights. The second consideration pertains to the well-known claim that the self-respect of the less fortunate suffers in inegalitarian societies. Societies which are sharply divided with regard to material condition tend to foster feelings of haughtiness and contempt on the part of some, deference and resentment on the part of others. Clearly

such feelings benefit no one: neither the less nor the more fortunate. That they do not benefit the less fortunate seems obvious. That they may cause suffering among the more fortunate as well is a point that is expressed with painful clarity in Margaret Drabble’s novel, The Needle’s Eye. Witness her description of a visit by Rose

Natural Rights, Equality, and the Minimal State

165

Vassiliou, the unwilling heiress, to the home of her parents, and of

her feelings when required to give instructions to their servants: Asking about dinner had made Rose feel so miserable, in so familiar a way:

she knew that it made no difference to the people in the kitchen, to be asked to provide an extra two meals, to be asked to make up a couple more beds, she knew that they were paid to do such things, that they could leave if they wanted to, that they were often asked to do much worse things with less notice and in less polite a manner, and yet nevertheless such a wash of embarrassment had poured over her, as she stood there clumsily and nervously, ill at ease, that it had transported her back twenty years, to the humiliation of being half-employer, half-servile child, treated by the staff with a mocking deference, and yet at the same time privileged to hear their complaints, their moans about her parents and the employing class in general, a tenant of both worlds, belonging to neither, recipient of the confidences of each about the other, and therefore all too painfully aware of the mutual contempt that reigned between them. It was these years, perhaps, that had made her so neurotically incapable of relying on. the services of others: She recalled the relief that had filled her when she discovered that it was possible to get through life cleaning one’s own shoes, cooking one’s own meals, washing one’s own pants, that it was not a law of nature that decreed her to suffer for ever the humiliation of having these things done for her by people who despised her.1*

Nozick suggests “one possible explanation of why certain inequalities in income . . . rankle so: not due to the feeling that this superior position is undeserved, but to the feeling that itis deserved and earned.” (p. 241) It is highly implausible, however, to suggest that the richest people in societies like our own do in fact possess, or are perceived to possess, some attribute which makes them the people who most deserve to be rich. It is only this assumption which enables Nozick to argue the unlikely elitist position that resentment by the poor of the rich is really just envy by the deservedly poor of the deservedly rich. But the rich of our society are not the hardest working people, or the most dedicated, or the most talented; there is no plausible sense of ‘desert’ in which the richest people can be said to be the most deserving. It is precisely this fact which explains why the inequalities of material condition in societies like our own can be so destructive of self-respect. For they distort human relationships by rewarding people who do not deserve it, and by then

166

Samuel Scheffler

permitting them to command the deference and self-abasement of other equally worthy people. They thus create a far-ranging social evil which can undercut the ability of large numbers of people to live fulfilling lives. Since it is also an evil which could plausibly be eliminated by egalitarian redistribution, and by arranging such inequalities as remain in accordance with a reasonable principle of desert or incentive,

it provides us with a substantial

reason

for

taking the possibility of such further redistribution seriously. As I have indicated, the two considerations just mentioned mili-

tate in favor of still greater egalitarian redistribution, which in tum would entail further restrictions on certain kinds of liberty, and a

further narrowing of the legitimate range of voluntary business exchanges.

I believe

that further redistribution

is justified,

and,

moreover, that it could be accomplished without violating anyone's libertarian rights. For there seems no reason to believe that such measures as highly progressive taxation and limitations on inheritance need deprive anybody of the liberty necessary to live a decent and fulfilling life. Though I think them justified, I recognize that these further restrictions on the good of liberty are unwelcome. This only teaches us what we must surely have already known: that in political theory as in life one can't always enjoy all good things together. All too often we must sacrifice one to save another. That is one reason why in political theory as in life there is cause for heartache as well as hope. NOTES

1. I would like to thank Thomas Nagel for his comments on an earlier version of this paper. I have also been helped by discussions with Janet Broughton, John Campbell, Peter Railton, and Cornel West, and I wish to express my gratitude to them.

2. Anarchy, State, and Utopia, Basic Books, New York, 1974, p. 233, All page references included in the text of the article refer to this book. 3. It is important to see that this impermissibility depends on conjoining Nozick’s moral structure with his moral content. One could, as we will later

demonstrate, take his moral structure (the side-constraint structure), conjoin it with a different moral content (an alternative conception of rights), and conclude that redistribution is permissible. Alternatively, one might reject his moral structure in favor of a maximizing structure, retain his

Natural Rights, Equality, and the Minimal State

167

moral content (the Lockean conception of rights), and again conclude that redistribution is permissible. 4. Nozick would of course be all in favor of voluntary aid for such people. Failing that, however, he would apparently judge it a morally superior outcome if the cripples and orphans died than if the government taxed its citizens to support them. Nozick says that he hopes to avoid “the question of whether . . . side constraints are absolute, or whether they may be violated to avoid catastrophic moral horror.” (p. 30n.) How many cripples and orphans would have to die in order to constitute a “catastrophic moral horror’? 5. A Theory of Justice, Harvard University Press, Cambridge, 1971, p. 505.

6. Rawls, pp. 505n.—506n. 7. Is there a natural right to education, on the alternative conception? In most modern societies, the answer is certainly yes, for education is necessary in order to have a reasonable chance ofliving a decent and fulfilling life in most such societies. But in thinking about this question, we see that the goods to which people have natural rights can vary across time and different societies, on this conception.

8. Some people will balk at the suggestion that liberty is a distributable good. We could satisfy such people by substituting a right to the distributable good of police protection for the right to liberty; only terminological, non-substantive changes would result. We will continue to treat liberty itself as a distributable good, however, for reasons of convenience. While it is not transferable, liberty is distributable in the weaker sense that government policy can directly regulate the amount which people enjoy, and that will be sufficient for our purposes. 9. But note Thomas Scanlon’s argument that “establishment of a system of property rights based on free contract means that some people, in order to gain the means to life, have to devote virtually all their productive energies to whatever tasks and pursuits are desired by those who control the goods necessary for life in their society.” (“Markets, Liberty, and the Obligation to Contribute,” unpublished xerox, p. 28. This paper was presented at the Battelle Seattle Research Center conference on Markets and Morals in May, 1974. It is scheduled to appear in the proceedings of that conference, which will be edited by Gerald Dworkin and Gordon Bermant.) He concludes that a libertarian society, contrary to appearance, may indeed involve restrictions on the liberty of some of its citizens. (See Scanlon, pp. 28-29) 10. Scanlon arrives at a similar conclusion from a different direction. He argues that we could justify the restrictions on liberty required by a welfare

168

Samuel Scheffler

state to those people whose liberty was restricted, whereas we would be unable to produce a satisfactory justification of market institutions to those whose liberty they restricted. On our alternative conception of rights, the disparity between the relative strengths of the two sorts of justification can be explained by the fact that even those people whose liberty was restricted by the welfare state would not be having their rights violated, while the least fortunate citizens in a libertarian society might well suffer such an outcome. (See Scanlon, pp. 29-31) 11. People do not ordinarily communicate their deepest feelings about each other by eating together. Might the situation have been reversed if sex were necessary for individual survival but food were not? 12. For a different view, see Gregory Vlastos, “Justice and Equality,” in R. Brandt ed., Social Justice, Prentice-Hall, Englewood Cliffs, New Jersey, 1962, pp. 31-72. 13. I wish to emphasize that the argument presented in this paper is intended to show that the alternative conception is compatible with a side-constraint structure. This is of course the moral structure which Nozick favors, and I have tried to suggest that even when the competing conceptions of rights are both incorporated into this kind of structure, the alternative conception emerges both as more consistent with Nozick’s own remarks about the moral basis of rights, and as independently plausible. It should be obvious, however, that the alternative conception could be incorporated into other structures as well (for example, it could be incorporated into a maximizing structure). Nozick aside, the question of which structure is best suited to the alternative conception is a separate one, and one which I shall not try to answer here. 14. Notice that a right to police protection would also be liable to indirect violation by overconsumers.

15. The Needle’s Eye, Popular Library, New York, 1972, p. 329.

S, Nozick on Unproductivity: The Unintended Consequences ERIC MACK*

By far the most difficult chapter of Robert Nozick’s Anarchy, State and Utopia

is the one

entitled, “Prohibition,

Compensation

and

Risk.” Accordingly, this central chapter has been almost entirely ignored by commentators friendly and hostile alike. Such caution is probably a mark of wisdom. Nevertheless, in this essay I aspire both to give an account of the basic structure and structuring motivations of “Prohibition, Compensation and Risk” and, more specifically, to provide an explication and critique of Nozick’s crucial notion of unproductivity and of his use of this notion. The discussion also serves to indicate an ambivalence on Nozick’s part about the character of rights. The format is roughly as follows: Section I deals with the structure of “Prohibition, Compensation and Risk.” It focuses on

the central role of the Principle of Compensation in support of which Nozick introduces the notion of unproductivity. Section II explicates the notion of unproductivity. Section III traces the implications of Nozick’s use of this notion; and Section IV concludes with

some general observations on the profitability, for Nozick’s enterprise, of his focus on unproductivity. We shall see that Nozick’s use 169

170

Eric Mack

of the notion of unproductivity has a variety of unforeseen implications which violate the spirit of his libertarianism. If the integrity of his libertarianism is to be preserved, the use of this notion must be abandoned. A consequence of such an abandonment is that the Principle of Compensation which, for Nozick, plays a crucial role in legitimating the state against individualist anarchist objections is left unsupported. Furthermore, and perhaps more fundamentally, we shall see that in the process of developing his argument in “Prohibition, Compensation and Risk” important unacknowledged shifts occur within Nozick’s conception of rights. Essentially this involves a shift from a fully deontic conception of rights as indicative of what “no person or group may do’ (ix) to something approaching a utilitarian calculus. Such a shift, it will be argued, largely undercuts Nozick’s historical entitlement theory of distributive justice, while

lending support to a kind of end-state theory explicitly opposed by him. I

For Nozick, the central explicit task in “Prohibition, Compensation and Risk” is the development of an account of how one may treat agents who engage in or are about to engage in risky actions, i.e., actions which risk eventuating in violations of rights. Within the overall plan of Anarchy, State and Utopia, Nozick’s purpose is to indicate why a protective association could legitimately prohibit the risky protective activities of other associations and thereby move toward statelike status. Risky acts, here, are acts which have a significant likelihood of eventuating in significant enough violations of rights so that, intuitively, it seems that one can do more to discourage them than merely negotiating with the would-be riskimposers in order to purchase their abstentions from these acts. Risky acts stand, somehow,

between those actions whose prohibi-

tion is fully unproblematic and those actions which are sufficiently non-risky as to count as fully innocent. Nozick’s central explicit hypothesis in “Prohibition, Compensation and Risk” is that there is a special intermediate, and legitimate mode of reaction to the actions in the intermediate, risky category. Thus he claims that, “the dilemma, ‘either you have a right to forbid it so you needn't compensate, or you don't have a right to forbid it so you should

Unproductivity: The Unintended Consequences

Wye

stop, is too short.” (83) Specifically, agents may be prohibited from performing risky acts if they also receive compensation for having suffered these prohibitions. That is, we may deal with risk-imposers in accordance with the Principle of Compensation which declares that, “those who are disadvantaged by being forbidden to do actions that only might harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others.” (82-83)? The Principle of Compensation opts for the prohibition of risky acts in contrast to requiring that those who disvalue risky activities bargain with would-be risk-imposers in order to purchase their abstentions from these risky endeavors. Yet Nozick offers arguments which purport to show that in general one may not proceed to require a desired action (or abstention) from another even if one compensates this party. In general one must secure the other party's action (or abstention) by means of prior negotiation and agreement. The question, then, is why do these general arguments not apply to the securing of others’ abstentions from risky activities? This question is to be answered by indicating what these general arguments favoring prohibition are and why they are thought not to apply to the securing of people’s abstentions from risky actions. To get at the general arguments we begin with the most general question posed by Nozick in “Prohibition, Compensation and Risk.” “Why ever prohibit?” (58) Why prohibit even clearcut boundary crossings—rather than allowing them but then requiring the transgressors to compensate their victims?? Given Nozick’s overall insistence on rights (boundaries) and their importance, it may seem odd that Nozick raises this question at all. It would seem that we prohibit because there are rights to be respected and protected. But Nozick denies that X’s having a right to G entails X’s being justified in forcibly forbidding Y’s taking G. (91-92) Thus, the justification of such a prohibition, if there is one, must be found at least partially elsewhere. For Nozick, the justification of prohibition is to be found in a comparative evaluation of alternative modes of response to the act whose prohibition is under consideration. Nozick seems to hold that if an action would violate rights it follows that this action may permissibly be nullified. Nullification, however, may take the form of forbidding the offending action or it may take the form of requiring subsequent compensation to the victim. Whether nullifi-

WHS,

Eric Mack

cation should take the form of prohibition depends upon the viability of the compensation alternative. The case is made for prohibition if and only if this compensation alternative is shown to be not viable. That this is the way a case is to be made for prohibition is illustrated in Nozick’s arguments for the prohibition of (ordinary) boundary crossings. Nozick contends that posterior compensation for boundary crossings simply is not a viable alternative to the prohibition of boundary crossing. His most general argument pointing to the non-viability of posterior compensation is the division of the benefits of exchange argument. According to this argument there are two natural candidates for appropriate posterior compensation:

full compensation,

i.e., the return of the victim of

the crossing to his previous indifference curve, and market compensation, i.e., the provision of the victim with what he would have

received as the result of freely negotiated agreement to be subject to what, in the absence of such an agreement, was this boundary crossing. The central problem with the first candidate for posterior compensation is that, . a system that allows all boundary impingements provided that full compensation is paid is equivalent to a system requiring that all prior agreements about the right to cross a border be reached at that point on the contract curve most favorable to the buyer of the right. (63)

Under such a system all the benefits of an exchange forced by a boundary crossing would be distributed to the boundary crosser. Yet there is no reason why all the benefits from an exchange (especially a forced exchange) should go to one of the parties to that exchange (especially the party who forces it). “Allowing boundary crossing provided only that full compensation is paid ‘solves’ the problem of distributing the benefits of voluntary exchange in an unfair and arbitrary manner.” (64) There is, however,

a different sort of problem with the second

candidate for posterior compensation, viz., market compensation. the appropriate compensation is what would have been agreed had free negotiations been carried out, then at least in those cases which negotiation is possible it is absurd to allow a person

If to in to

Unproductivity: The Unintended Consequences

173

boundary cross and then seek to determine what price would have been agreed upon if a prior agreement had been reached. One avoids the tangle of counterfactuals simply by requiring prior negotiation. (And once such negotiations are completed what is done in accord with them are not boundary crossings.) That parallel problems exist for a policy of allowing risky acts while requiring posterior compensation for the harm that eventuates from them suggests that risky acts also may be forbidden. There are further and more utilitarian-sounding considerations which Nozick also brings against allowing certain boundary crossings and acts which significantly risk boundary crossings. These considerations involve the fear which would be produced by allowing such crossings or acts risking them—a fear that would afflict even those whose boundaries turn out never to be crossed and who,

therefore, are not likely candidates for compensation. Even these utilitarian-sounding considerations can be construed as pointing to the absence of any adequate theory of compensation for victims of boundary crossings.» However,

we should note that Nozick takes

the arguments which turn on the fear provoking character of certain boundary crossings and the fear inducing nature of acts which risk certain boundary crossings to be separate from the division of benefits argument. When contemplating the possibility of failure for the argument from fearfulness for prohibiting boundary crossings, Nozick says, “There would remain the argument about the division of benefits of exchange.” (69) And, presumably, the force of the division of benefits of exchange argument with respect to prohibiting risky acts is equally independent of the fearfulness argument for forbidding risky acts. Furthermore, even if all the fearfulness arguments go through, Nozick still needs the division of benefits arguments. For only by these arguments does Nozick establish, if he establishes at all, the legitimacy of prohibiting non-feared violations of rights and acts that risk non-feared violations of rights. The most general argument, then, for prohibiting boundary impinging acts and suggesting the prohibition of acts which risk the impingement of boundaries is the division of the benefits of exchange argument. The arguments from fearfulness will favor prohibiting an activity over allowing it (while requiring that compensation be paid to its victims) when that activity is fear provoking.

174

Eric Mack

The Principle of Compensation itself, however, expresses the legitimacy of certain impinging actions, viz., prohibitions directed against would-be risk-imposers. Are such impingements really to be allowed (with compensation paid to those impinged upon) rather than to be prohibited? It is not as though impingements against would-be risk-imposers have an obvious or well-established place within the tradition of Lockean state of nature theory. If such impingements are allowable, justified by posterior compensation, it must be that, in these cases, determining due posterior compensation is not subject to the problems which makes nonviable the policy of allowing rights violating actions provided due posterior compensation is paid for them. Spetifically, the division of the benefits of exchange argument must not apply to “exchanges” in which abstentions from risky actions are secured. And fear-related arguments will not apply against allowing these impingements because, presumably, these prohibitions are not fear provoking. How might it be that the division of benefits argument does not apply? If it did apply, the argument against allowing impingements on would-be risk-imposers would run as follows: The impinging party benefits from his exchange with the would-be risk-imposer. Even returning the would-be imposer to his previous indifference curve would distribute all the benefits of exchange to the impinging party. Attempting, instead, to determine after the fact what the would-be imposer and the impinger would have settled upon as the price for the former's abstention is inferior to prohibiting the impingement until and unless a bargain is struck. So, the argument would conclude, if there are benefits for the impinging party in the would-be imposer’s not imposing risks, then impinging on the imposer should be prohibited—just as rights violating actions are prohibited. The crucial element, then, for applying the division of the benefits of exchange argument would be the claim that the would-be risk-imposer’s abstention benefits the party who would impinge to force that abstention. The way, then, to maintain that the benefits

argument does not apply to such impingements is to deny that abstentions from risky actions benefit those who seek these abstentions. The strategy described here is in fact the one adopted by Nozick at the end of the penultimate section of “Prohibition, Compensation and Risk” where he argues that,

Unproductivity: The Unintended Consequences

175

In our earlier discussion of border crossing we noted the absence of any compelling reason why all of the benefits of voluntary exchange should go to one of the parties. Which of the admissible points on the contract curve was to be selected, we said, was a question appropriately left to the parties involved. This consideration favored prior negotiation over posterior payment offull compensation. In the present subclass of cases, however, it does

seem appropriate uniformly to select one extremity of the contract curve. Unlike exchanges in which both parties benefit and it is unclear how these benefits are to be divided, in negotiations over one party's abstaining from an action that will or might endanger another person, all the first party need receive is full compensation. (84)®

There is, of course, a puzzle to be overcome

here. If abstentions

from risky actions do not benefit those who (non-altruistically) seek them, why are they sought? Solving this puzzle is the task of the final section of “Prohibition, Compensation and Risk” in which the

notions of unproductive exchange and unproductive introduced.

activity are

II

In this section we are asked, e.g., to imagine a case in which a neighbor plans to erect an ugly (to you) but pleasing (to him) structure on his own land. Displeasing as it is to you, he has every right to do this and if you were to secure his abstention from erecting this structure you would benefit. You would get what otherwise you would not get—the non-agitation of your aesthetic sensibilities. It is true, however, that you would be left no better off

than if your neighbor did not exist at all or had nothing whatsoever to do with you.” For this reason Nozick says that the exchange to get the non-construction satisfies a necessary condition for being an unproductive exchange. The abstention from construction satisfies a necessary condition for being an unproductive activity. Imagine instead that the neighbor himself finds nothing lovely in his planned monstrosity (and finds nothing lovely in your distaste for it). Rather his only motive for planning the structure is to sell to you his abstention from building it. In this case the second necessary condition for unproductivity is also satisfied, viz., your securing this abstention “merely gives you relief from something that would not threaten if not for the possibility of an exchange to get relief from it.”

176

Eric Mack

(85)8 A sign that this crucial second condition for unproductivity is satisfied is that if an exchange securing this non-construction “were impossible or forcibly prohibited so that everyone knew [it] couldn't be done, one of the parties to the potential exchange would be no worse off.” (85) Indeed, the purchaser of non-construction would have been better off had purchase of this activity been impossible or forcibly prohibited. He would have gotten the non-construction at no cost. For the neighbor, by hypothesis, has no motive in planning to construct it except that of selling his abstention.® This neighbor's abstention from construction satisfies both conditions for being an unproductive activity. Since unproductive activities do not benefit those who seek them, the division of the benefits of exchange argument cannot be urged against prohibitions which require unproductive activities. Notice that the taint of unproductivity does not function (as one might expect) to justify forbidding unproductive activities. Rather, an activity’s unproductivity functions to legitimate requiring that activity, e.g., to legitimate requiring the neighbor's non-construction by prohibiting his construction. Due to its unproductivity, those who require the activity (counting abstentions as activities) do not benefit. Hence, the problems of dividing benefits do not arise.?° If, then, there is no other reason against requiring an unproductive activity, prohibitions may be issued which require that activity. Specifically, if those activities requiring prohibitions do not themselves involve feared interventions, they may go forward. Thus it is a startling and insufficiently noticed feature of Nozick’s position that there are two quite separate strands of justification for prohibition. One, of course, ties the prohibition of an act to its rights violating character. The other ties the prohibition of an act to the unproductivity of abstention from that act. Thus, after specifying the conditions for unproductivity, Nozick endorses the prohibition of blackmail. And the argument turns not at all on any purported rights violation by the blackmailer. Rather we are told that, Though people value a blackmailer’s silence, and pay for it, his being silent is not a productive activity. His victims would be as well off if the blackmailer did not exist at all, and so wasn’t threatening them. And they

Unproductivity: The Unintended Consequences would be no worse impossible. (85)

off if the exchange

were

known

177

to be absolutely

Of course, different motives might lie behind my planning to publish your secrets. I may want you, disturbed at the prospect of my revelations, to buy me off. Such an exchange would uncomplicatedly be unproductive. There is no benefit at all to you in such an exchange being possible. But, alternatively, I may plan to publish because I want the royalties which will accrue to me because others want to read about your secret vices. In such a case, Nozick talks about what I may legitimately charge you for my silence. I may charge, he says, “an amount of money equal to [the] expected difference in royalties between the book containing this information and the book without it.” (85) Yet this is not simply what I may legitimately charge you if I choose to sell my silence to you. It is the payment to me which, according to Nozick, justifies your forbidding me to publish those secrets. Now it is not clear why acquiring the silence of the more puntiely oriented scandal-monger counts as an unproductive exchange. Hence it is not clear why this scandal-mongering may be prohibited. or, after all, if I am independently pecuniarily motivated to publish your secrets, then when I am silent you do get relief from something which threatened and not merely because of the possibility of exchange with you to get relief from it. So this looks like the case in which you get your neighbor not to erect a structure pleasing to him. It looks like a case in which you benefit.

Nozick’s point,

however, may be that once I am offered the difference between the book royalties with the secrets included and the royalties with them concealed, I could have no motive for planning to reveal your secrets except pure blackmail. At this point you are threatened with revelation only because of the possibility of exchange to get relief from it.1} How should we speak of such cases of layered motivation for planning to do what another disvalues? Consider the possessor of your secrets who is motivated to publish them by the expectation of a $1,000 return

over costs but who,

knowing your fears, could

successfully insist upon more than $1,000 from you for his silence. Suppose that, as Nozick proposes, he is prohibited from publishing

178

Eric Mack

those secrets and paid $1,000. That $1,000 buys you relief from publication which threatens because of the interest of others in your secrets. That aspect or part of the exchange is not unproductive. It’s like paying your neighbor to forego his cherished edifice. So that aspect or part of the secret-holder’s silence is not unproductive activity. However any payment beyond the $1,000 would be unproductive. Such payment would only buy relief from something which would not threaten except for the possibility of such an exchange to get relief from it. Notice that compared to an unconstrained bargaining situation you are better off if payments of over $1,000 are forbidden. But you are not better off ifpayment of $1,000 is forbidden. For, were this payment forbidden also, the secretholder would turn to his scandal-loving readership. Thus, if a portion of the freely negotiated price for a person's activity would be paid solely because the seller is free to sell at that price or higher, i.e., if less would suffice to elicit his activity were less all he could demand, then an exchange for that activity (action or abstention) is in part unproductive and the purchased activity is in part unproductive. We can, then, state Nozick’s view as: If an activity is all or in part unproductive, it may be required as long as the party subject to the prohibiting requirement is compensated for the productive part or aspect of his activity. Freely negotiated sale of the activity is not the preferred alternative. This account of the conditions of unproductivity and of the role for claims about unproductivity sets the stage for a consideration of what activities fulfill these conditions and for an evaluation of the doctrine that unproductive activities may be required. III

It is not hard to see that the second condition for unproductivity

viz., giving relief somewhat

would

not threaten

except for the

possibility of exchange to get relief from it, is satisfied—at least in the partial way which Nozick himself takes to be adequate to satisfaction—in all typical free market exchanges. For in all typical free market exchanges the purchase price of some activity, of some service or transfer of goods, is as high as it is partially because of the possibility of sale at that or higher prices. Characteristically, the seller gets more than some price m which would have motivated

Unproductivity: The Unintended Consequences

179

him to sell had exchange for more than m been forbidden or impossible (and this was known to the seller). Once the seller has been offered m—which characteristically is less than what unconstrained bargaining will settle upon—he withholds his activity solely because of the possibility of eliciting a higher payment. If exchange at above m were forbidden or impossible the buyer would be better off.12 Just as you are better off when payments of more than $1,000 to your blackmailer are forbidden or impossible. Anything that the buyer pays over m only purchases relief from what would not have threatened given the offer of m except for the possibility of exchange (purchase of abstention from the threatened action or abstention) for more than m. We can also see that in typical free market exchanges the activity of the buyer also satisfies, in the same partial way, the second condition for unproductivity. For “buyers” are just sellers of money and “sellers” are just buyers of money. So the previous argument applies symmetrically. Alternatively, we can think about the price (in money) n where n > m and n is the price at which our original buyer is minimally motivated to purchase what our original seller is offering. The buyer will purchase for n if and only if exchange at less than n is forbidden or impossible. (And he will not purchase for more than n.) Typically free negotiation will settle upon a purchase price of less than n.

Hence,

the seller would

benefit from

the

prohibition or impossibility of exchange for less than n. Whatever the seller receives less than n is the cost to him of relief from the withholding of the purchaser’s act—a witholding which would not threaten given the offer to sell at n except for the possibility of exchange at less than n. What the market is all about is discovering what things you have or have access to or can produce which others value more than you and providing these others with these goods or services for more than you value them—where this value is the value that you place on these goods or services independently of the possibilities of exchange. This is why it should be no surprise that typical free market exchanges satisfy, in the partial way indicated, Nozick’s second condition for unproductivity. If I am correct about this satisfaction of the second condition, then adding this condition to the first can hardly serve to narrow significantly the instances of unproductivity. The fact is that if typical free market exchanges are not to count as unproductive, it

180

Eric Mack

must be because of the failure of the first condition, viz., the buyer

gains nothing from the seller that he would not possess if either the seller did not exist at all or existed without having anything to do with the buyer. Now it is reasonably clear that in very standard cases of a seller's producing (or importantly contributing to the production or delivery of) what the buyer chooses to purchase, this condition for unproductivity is not satisfied. If B acquires a book produced by S, then B gains something that he would not possess if either S did not exist at all or existed without having anything to do with B. There are, however, many interesting cases in which one party does provide a good or service to another, this provision seems to be part of a free market exchange, and yet this provision also seems

to satisfy both the first and second conditions for unproductivity. Let us consider initially the complex case of boycotts (including threats of boycott). Boycotts are also interesting because independently they are evidence that there is no significant borderline between hard market bargaining and blackmail. When X boycotts Y he offers Y his future patronage solely on condition of Y's changing his ways in some manner pleasing to X where this change is external to the normal conception of what Y sells. Thus, X boycotts Y if he indicates that he will not patronize retailer Y unless Y ends racial discrimination in his hiring practices or unless Y begins racial discrimination or unless Y supports this or that political campaign, etc. Since what is demanded of Y is external to the normal conception of what Y offers on the market, Y will see the financial and psychic costs of securing relief from the boycott as purchasing something which he would have gotten anyway in the normal course of events. He will be tempted to describe the boycott as “blackmail” even more than we are all so tempted whenever the parties we are bargaining with strongly resist our favored terms. To consider boycotts in more detail imagine that a wicked retailer racially discriminates in hiring and that there is no recourse in law against him. The good guys among those who have been patronizing this retailer pledge themselves to a boycott. They pledge to withhold their business from this retailer unless he agrees to abandon discrimination. Their threat is based, let us suppose, on the expectation that the retailer will accede to their demands. Their hope is to stop the discrimination. If they were to see that they could not

Unproductivity: The Unintended Consequences

181

secure the retailer's non-discrimination, they would regretfully continue their patronage. (But the retailer does not know this.) If these boycotters and this retailer exchange continued patronage for non-discrimination, their exchange clearly satisfies the second condition for unproductivity. The retailer merely gets relief from something which would not threaten him (the boycott) except for the possibility of exchange to get relief from it. Also, the retailer would be no worse off if the exchange of continued business from the good guys for his non-discrimination were forbidden or impossible. The lifting of the boycott by the good guys satisfies the second condition for being an unproductive activity. Is the first condition for unproductivity also satisfied? Would the retailer be better off if these patrons did not exist at all or had nothing to do with him? At first glance, the answer is, no. The retailer prefers the package of patronage and non-bigotry to having those patrons go their separate way. Given his investment in this operation at this site, he is better off with the crusading customers

than without them. But he would be better off still if these customers had never existed so that he would have invested elsewhere or had they never had anything to do with him because he had invested elsewhere.

He, at least, would be no worse

off. There is a clear

sense, then, in which unless the potential customers at alternative sites would also have developed heightened racial sensibilities, the retailer is worse off because of the existence of or because of his contact with his actual customers. He may even be worse off than he would have been had he been forbidden from ever becoming a retailer. In the absence of Nozickean arguments to the contrary, it

seems plausible to claim that the lifting of such a boycott satisfies the first as well as the second condition for unproductivity. Thus, it seems that the lifting of the boycott does not benefit the retailer in a way which makes applicable the division of the benefits of exchange argument against the practice of forbidding the boycott while providing posterior compensation. If forbidding such a boycott is itself not a fear provoking act, then no arguments remain in favor of prior negotiation. Such a retailer, then, need not negotiate with the boycotters. He (or his agents) may forbid the boycott as long as due compensation is paid to the good guys if any is due. And it looks as though no compensation would be due because the payment which

182

Eric Mack

the good guys would have negotiated for lifting the boycott, were they allowed to boycott, is not part of their loss due to the prohibition of their boycott.!* Let us turn to even more clearcut instances of free market activities and exchanges which satisfy both conditions for unproductivity. Suppose that B is a roadbuilder who wants a right-of-way through S’s cultivated field. S, I am supposing, has a Nozickean entitlement to the field and hence to the right-of-way in virtue of the transformations which he or others have wrought. But what B needs is not this transformed land but merely the right-of-way and this would have existed even if S (or earlier laborers upon this land) had not. Surely if B were to purchase this land from S he would gain

nothing which he would not have possessed if S had not existed at all or existed without having anything to do with B. (If someone else would hold the land if S didn’t, then B’s purchase from that party would be unproductive.) Of course, characteristically such an S will have some basis for insisting upon payment from B other than the possibility of exchange with B. Let us suppose, e.g., that S’s income from his land is the same as the income available to S from $1,000. In such a case, insofar as S insists on a $1,000 payment, he is proposing a productive exchange!4—just as was the secret-holder who charges $1,000 for his not including your secrets in his scandal-mongering book. In both of these cases an exchange at $1,000 provides the buyer with relief from something which would have threatened (S keeping his land, your secrets being revealed) even without the possibility of exchange between the relevant seller and buyer. In the land case, it is $’s desire for the income from his land which threatens B with S’s continuing to hold that land. But any payment which S might receive from B in excess of $1,000 will merely buy B relief from something which would not threaten except for the possibility of exchange at over $1,000. B would not be worse off if payments of over $1,000 for this land were impossible or forbidden. Thus, in such cases of exchange both conditions for unproductivity are satisfied—the second condition being satisfied in the partial way which

Nozick has allowed.

How,

then,

may

rightful

holders of such property be treated? They may be prohibited from continuing to hold their property, i.e., they may be required to

Unproductivity: The Unintended Consequences

183

surrender their property, as long as they are paid what would have minimally motivated them to surrender these parcels of land had all more generous offers been impossible or forbidden.'> In short, Nozick’s views regarding unproductivity imply the legitimacy of the practice of eminent domain, i.e., the legitimacy of taking desired land from its rightful possessor with the payment of compensation which does not cover the loss due to not being allowed freely to negotiate a sale of that property. Indeed, such taking of what is the rightful property of others seems to be permissible not only on the part of some special “public authorities” but also on the part of anyone.!® What is central to his land seizure case is that had X who holds the relevant good G which is desired by Y not existed, the G still would exist and would be available to Y. In light of this central feature we can construct a parallel Nozickean argument for the seizure of some inherited property. Suppose that X holds some G as an inheritance, but G would have been produced even if X had not existed (it was not produced in order to be bequeathed) and G would be available to Y if X did not exist. In such a case, Y's purchase ofG from X would be an unproductive exchange. Y would be better off if X had not existed at all and whatever Y pays to X over what would minimally motivate X to sell merely provides Y with relief from something which would not threaten (viz., X’s retaining G) except for the possibility of exchange to get relief from it. In such a case, then, Y may seize G—as long as he pays X what would minimally motivate X to sell G were no more generous offers possible.*7 Clearly, for Nozick, these have to be discomforting results. For surely it is in the spirit of his overall enterprise to condemn all prohibitions of peaceful boycotts, takings by eminent domain, and seizures of rightful inheritances. Interestingly, these results seem to flow in part from a Marx-like aversion (built into the second condition for unproductivity) to persons’ perceiving and valuing the goods which they might provide to others as objects for economic exchange,

i.e., as commodities.

The

second

condition

for unprod-

uctivity seems to reflect the view that the production and distribution of goods is better, less alienating, and so on when directed by a social perception of their usefulness rather than independent individuals’ perception of the capacity of goods to bring goods in

184

Eric Mack

exchange. And such a view is, of course, naturally associated with a preference for command or customary economies over market economies. Li

At the outset of this essay I said that the central explicit task of the chapter on “Prohibition, Compensation and Risk” was the development of an account of how one may treat agents who engage in or are about to engage in risky action. Within the overall plan of Anarchy, State and Utopia the justification of the prohibition of risky acts allows Nozick to sketch a process whereby one protective association legitimately journeys toward statehood by prohibiting even the risky protective acts of other associations and of independent defenders and retaliators.18 Now clearly B would be no worse off if S, who acts in some risky way toward B, did not exist or had nothing to do with B. For this reason B’s purchase of S’s abstention from the risky activity satisfies the first necessary condition for unproductivity in exchange. The problem for Nozick is that the risk-imposers he is concerned about, especially risky self-defenders and independent protective associations, characteristically are not motivated to set themselves to perform risky actions in order to sell their abstentions from these acts. Rather, they have all sorts of independent motives for pursuing their risky courses. For this reason, Nozick thinks that he must acknowledge that in these cases the second condition for unproductivity is not satisfied. Nevertheless, Nozick goes on to insist on the propriety of forbidding these risky acts. What of those cases where only the first condition of unproductive exchange is satisfied, not the second: X is not better off as a result of the exchange

than if Y didn’t exist at all, but Y does have some motive other than selling abstention. If from Y’s abstention from an activity X gains only a lessened probability of having his own border crossed (a crossing whose intentional performance is prohibited), then Y need be compensated only for the disadvantages imposed upon him by the prohibition of only those activities whose risk is serious enough to justify prohibition in this manner. (86)

Nozick is asserting, then, that if S’s act is a risky one, then even if S’s abstention from that act fails to satisfy the second condition for unproductivity in activity, that abstention may be still required of

Unproductivity: The Unintended Consequences

185

S—just as if the second condition were satisfied. Yet how can this be? For the failure of the second condition signifies that B benefits from an exchange to secure S’s abstention. And since B benefits from the exchange, it would seem that the division of benefits of exchange argument would require that B negotiate with S to secure S’s abstention.

Granted,

S is set to perform a risky action. But it

remains obscure how the riskiness of S’s action combines with the abstention from that action’s satisfying (only) the first condition for unproductivity to yield the legitimacy of forbidding S’s act. Since S’s act is risky it comes close to being subject to the violation of rights justification for prohibition. And since, as Nozick sees it, abstention from S’s risky act satisfies one condition for unproductivity, this act

comes close to being subject to the unproductivity justification for prohibition. But two such near misses do not seem to fit together so as to constitute a hit. Notice, however, that if I am correct about the much greater extent to which the second condition for unproductivity is satisfied,

Nozick is in a better position regarding risky acts than he realizes. For given the ease with which, in fact, the second condition is realized, it is the satisfaction of the first condition which is pivotal for the applicability of the unproductivity justification. And this first condition is satisfied by (exchanges securing) abstentions from risky acts. That the would-be imposer of risk has some independent motive for his risky action simply makes him like the secret-holder who has lucrative publishing prospects. A negotiated exchange securing S’s abstention from a risky act will satisfy the second condition in the partial manner discussed above if S is paid more than would minimally motivate him to abstain from that act if freely negotiated exchange were impossible or forbidden. What B purchases with this incremental payment is relief from what would not threaten once the minimally motivating offer was made except for the possibility of exchange at a higher price. So, as in the case of the would-be revealer of secrets, the would-be imposer of risk may be

prohibited from his actions provided he is offered this minimally motivating amount. Thus, we can provide a Nozickean rationale for prohibiting independently motivated risky actions provided compensation is paid. However, full compensation seems to be required, not just compensation for disadvantages. Perhaps, somehow, the riskiness of the prohibited acts plausibly works to reduce

186

Eric Mack

the required compensation.!9 But it is as hard to see how riskiness cooperates with unproductivity to yield this result as it is to see how riskiness cooperates with the first condition for unproductivity. The two argumentative strands justifying prohibitions remain unwoven. In any case, the cost to Nozick of having this rationale for something at least close to his conclusion about risky actions is the endorsement of the unlibertarian implications developed in Section III. Beyond these problems, Nozick’s views with respect to unproductivity threaten to subvert the strongly deontic conception of rights with which Anarchy, State and Utopia begins. As noted earlier, the question which establishes the overall program for “Prohibition, Compensation and Risk,” viz., Why ever prohibit? is surprising. It is surprising because in the context of a strongly deontic conception of rights an answer comes so readily to mind. That answer is, to secure persons rights by preventing persons from doing what morally they may not do. The question, Why ever prohibit? foretells the appearance of a different conception of rights. Indeed, the deontic conception is indicative of what “no person or group may do” (ix) retreats, in “Prohibition, Compensation and Risk” before another, more economic outcome oriented conception. According to this outcome oriented conception, X’s right to G consists in X’s having a claim against others’ taking G (or preventing his G-ing) without compensating X appropriately. If X’s surrender of G is unproductive, then appropriate compensation will at most be full compensation. If X’s surrender of G is productive, then appropriate compensation will, it seems, be market compensation. On this conception, although not on the deontic conception, a system in which others’ taking G from X is always accompanied by X’s being compensated duly would fully protect X’s rights. If only we could insure that X is always compensated fittingly for any (apparent) boundary crossing, we could insure the protection of X’s rights without ever instituting prohibitions (except, perhaps, for prohibiting the non-payment of due compensation). The shift to this outcome orientation is a product of making the wrong of boundary crossing rest upon the inadequacies of schemes of posterior compensation for boundary crossing. And, in turn, the wrong of boundary crossing is given this construction so that the prohibitions which are justified in the name of unproductivity, e.g., the prohibitions of blackmail, will not count as wrongful boundary crossings. Yet we

Unproductivity: The Unintended Consequences

187

have noted that the unproductivity justification for prohibitions is distinct and separate from the rights violation justification for prohibitions.

It should not be surprising,

then, that accommodating

prohibitions in the name of unproductivity involves an alteration in the conception of boundaries. On the resulting outcome oriented conception of rights, a boundary specifies a level of well-being and the permissibility of others’ actions depends upon the effect of those actions upon the subject's wellbeing. Even if what is forcibly required of the subject is a productive and beneficial activity, no wrongful boundary crossing will take place as long as the level of the subject's wellbeing is fittingly raised. This shift to an outcome oriented conception of rights should make it difficult for Nozick to sustain his antipaternalism. For the subject of paternalistic intervention will have no complaint in terms of his rights if the intervention does actually maintain or appropriately raise his level of wellbeing. In contrast, on the more consistently deontic conception, a boundary is a frontier which others do wrong to cross and accompanying benefits do not right such wrongs. Certainly in his intuitive appeal to “the Kantian principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other

ends

without

their

this more consistently ception of rights is lost boundary is understood from which others may

consent,”

(31-21)

Nozick

is invoking

deontic conception. But his deontic conwhen even having a morally unambiguous as being on a certain indifference curve only move one outward, towards higher

indifference curves, at least a fair distance, if there is a fair distance. NOTES

*For their helpful discussion or listening, I thank Robert Mackay, Robert Nozick, and Mary Sirridge. Such thanks in no way attributes agreement or responsibility. 1. Robert Nozick, Anarchy,

State and Utopia (New York: Basic Books,

1974). 2. The Principle of Compensation is expressed in terms of compensation for disadvantages imposed. Nozick holds that one can be made worse off by not being permitted some activity without being disadvantaged. Thus, compensating a person for disadvantages imposed may not fully compensate him. Nozick makes little attempt to clarify or develop these distinctions.

188

Eric Mack

3. In fact, prohibiting is defined as requiring more of a transgressor than compensation for damages inflicted. (57) 4. The term “Nullification” is my own, not Nozick’s. But see footnote 8 of chapter seven. (345)

5. We should note the exceptions to Nozick’s rejection of boundary crossing accompanied by compensation. Non-feared crossings with compensation are to be permitted when “prior consent iS impossible or very costly to negotiate” (72) and the benefits of the crossings are high. The appropriate compensation for such a crossing would seem to be market compensation. But Nozick seems inclined toward mere full compensation. At least on p. 86 he indicates that in an “ordinary border crossing” the victim should be raised “to the position he was in before he was interferred with.” Question: Does Nozick’s stand on these exceptions to prohibitions on boundary crossings indicate the stand he would take regarding coercive taxation to finance the provision of public goods, i.e., goods which purportedly would not otherwise be financed because sufficiently widespread consent to contribute to their production “is impossible or very costly to negotiate?” 6. Also see the restatement of this strategy on 145. While it seems to me that Nozick is correct to say that “all the first party need receive is full compensation,” this is not Nozick’s own considered conclusion. For more commonly (e.g., on 87 and 145 and in the very expression of the Principle of Compensation) Nozick holds that this party need only receive compensation for disadvantages inflicted. I try to say something later in this essay about where compensation only for disadvantages may come from. 7. Nozick notes ambiguities and complexities with this formulation. Suppose that on other occasions this neighbor benefits you. Suppose that were this neighbor not there worse neighbors would be. 8. Although Nozick might be read as attempting to replace the earlier condition which has been discovered to be merely necessary with a new condition which is necessary and sufficient the more generous and plausible reading is that there are two necessary conditions which are supposed to be jointly sufficient. Cf. 145. 9. How can we know that the second condition is satisfied? Perhaps by simply refusing to pay for the desired activity, e.g., the non-construction. That is, perhaps we discover that the second condition is satisfied by calling what we hope is the other party’s bluff. This suggests that any scheme of justification for prohibiting, e.g., the monstrous construction, which waits upon the satisfaction of this second condition is pointless. For, it seems, we will know that the second condition is satisfied only after successfully calling the other party’s bluff, e.g., seeing him not engage in construction. But if the bluff has been successfully called, there is no need for prohibition.

Unproductivity: The Unintended Consequences However,

189

there might be cases in which the neighbor sets himself to erect

the offending building solely in order to bargain for his abstention but, having so set himself (or having, thereby, his reputation on the line) he will proceed with construction if his price is not met. 10. I do not challenge here the truth of the claim that one party does not benefit from an unproductive exchange (i.e., from securing the other's unproductive activity). One is tempted, though, to answer Nozick’s remark, “A strange kind of productive exchange it would be whose forbidding leaves one party not worse off!” (85) with “A strange kind of voluntary exchange it would be whose forbidding did not leave all the parties better off ex ante!” Alternatively, one might emphasize that the issue is whether a given party is better or worse off with respect to his rights. Neither party to an unproductive exchange has his rights violated. Each surrenders a right and each acquires a new right (e.g., the right to the neighbor’s not building the displeasing structure). And, presumably, each prefers the alteration of rights to the status quo. 11. Nozick also notes the case in which I delight in revealing your secrets. (86, note) According to Nozick, in this case I “may charge differently” than the party who “may not charge the best price he could get from the purchaser of his silence.” (85-86) Does this mean that taking this delight, I may charge whatever the market will bear? 12. Iam not suggesting that in particular cases this m can be known. On the contrary, it will characteristically not be known—even to the seller. This suggests a severe practical limit to the application of any principle which requires that we know, for compensation purposes, just what m is. Nozick might welcome such a practical limitation. But these issues cannot be discussed further here. 13. This sentence follows the phrasing of Nozick’s final sentence in the section “The Principle of Compensation.” (84) Although in general Nozick is discussing risky actions, his final sentences in this section are about what can be said when the division of the benefits of exchange argument does not apply and require that an activity not be forbidden. 14. However, this income itself might be the result of unproductive exchanges. It might, for instance, be the result of S’s sale of the wild berries which grow on this land and which would be more available to the buyers were S not to exist. 15. For the sake of economy,

I have identified what leaves S indifferent

and what minimally motivates S. This is a common way of speaking. But if one wants to hold that S would not be motivated to sell by the prospect of an exchange moving him to a different point on the indifference curve he already occupies, then one will want to say that C may legitimately charge $1,000.01

190

Eric Mack

16. Presumably, holding everyone’s preferences set, the land will tend to be held by the party with the strongest independent desire for it. For it would not pay anyone else to take the land from and then compensate this party.

17. Suppose that X has inherited money (representing wealth which would have existed even if he hadn't existed). X’s compensation for having all this money taken would be the smallest basket of goods and services which he would have bought with that money if purchase of larger baskets were impossible or forbidden. 18. In “Nozick’s Anarchism” in Anarchism (NOMOS XIX) edited by J. R. Pennock and J. W. Chapman (New York: New York University Press, 1978), I argue this journey does not bring the protective association to statehood. 19. On pp. 86-87 Nozick seems to anticipate something like my reconstruction and warns against it by saying that “. . . this does not explain why all are not returned to the indifference curve they would occupy were it not for the prohibition.” But how does the riskiness of their proposed actions show that they should not be so compensated. Nozick suggests that to require full compensation from the prohibitors of risky actions is to treat them like ordinary boundary-crossers. But it seems that ordinary crossers should have to provide market compensation, not mere full compensation. If neither the cooperation between riskiness and the first condition of unproductivity nor the cooperation between riskiness and unproductivity can be spelled out, prohibitions of risky acts must depend entirely upon their riskiness or entirely upon the unproductivity of the activities thereby required. I have shown how Nozick has easy access to the latter option. At times (cf. p. 82) Nozick seems far less hesitant about the prohibition of actions on the basis of their riskiness to rights. At these times the only worry seems to be about individuals whose well-being is intimately tied up, and in unusual ways, with their performance of risky actions.

10 Libertarianism Without Foundations THOMAS

NAGEL

Liberalism is the conjunction of two ideals. The first is that of individual liberty: liberty of thought, speech, religion, and political action; freedom from government interference with privacy, personal life, and the exercise of individual inclination. The second ideal is that of a democratic society controlled by its citizens and serving their needs, in which inequalities of political and economic power and social position are not excessive. Means of promoting the second ideal include progressive taxation, public provision of a social minimum, and insulation of political affairs from the excessive influence of private wealth. To approach either of these ideals is very difficult. To pursue both of them inevitably results in serious dilemmas. In such cases liberalism tends to give priority to the respect for certain personal rights, even at substantial cost in the realization of other goods such as efficiency, equality, and social stability. The most formidable challenge to liberalism, both intellectually and politically, is from the left. It is argued that strong safeguards of individual liberty are too great a hindrance to the achievement of economic and social equality, rapid economic progress from underdevelopment, and political stability. A majority of the people in the 191

192

Thomas Nagel

world are governed on this assumption. Perhaps the most difficult issue is posed by economic power and the political inequality it can create. The criticism from the left is that harmful concentrations of economic power cannot be attacked—or prevented from forming—unless individual actions are more closely restricted than is permitted by the liberal ideal of personal freedom. Radical redistribution is unlikely in a liberal democracy where private wealth controls the political process. A defense against this criticism must either challenge the factual claim or argue that the importance of freedom outweighs these disadvantages. Liberalism is also under attack from the right. The most conspicuous attacks are not theoretical: the right in its more prominent political manifestations is not particularly attached to individual liberty when that liberty threatens the unequal distribution of wealth and power. But there is also a theoretical challenge from the right, called libertarianism, and while it does not present as serious a moral issue for liberals as does the attack from the left, the two are in some ways symmetrical. Libertarianism, like leftism, fastens on one of the two elements of the liberal ideal and asks why its realization should be inhibited by the demands of the other. Instead of embracing the ideal of equality and the general welfare, libertarianism exalts the claim of individual freedom of action, and asks why state power should be permitted even the interference represented by progressive taxation and public provision of health care, education, and a minimum standard ofliving. In Anarchy, State, and Utopia,! Robert Nozick attempts to set forth the libertarian position in a way that will persuade some of those who do not already accept it. Despite its ingenuity of detail, the effort is entirely unsuccessful as an attempt to convince, and far less successful than it might be as an attempt to explain to someone who does not hold the position why anyone else does hold it. The book may come to occupy the position of an official text of libertarian political theory, but it is unlikely to add to the ranks of believers in that view unless it converts a few unwary philosophical anarchists by persuading them that the minimal state need not after all violate their austere moral requirements.

To present a serious challenge to other views, a discussion of libertarianism would have to explore the foundations of individual rights and the reasons for and against different conceptions of the

Libertarianism Without Foundations

193

relation between those rights and other values that the state may be in a position to promote. But Nozick’s book is theoretically insubstantial: it does not take up the main problems, and therefore fails to make the kind of contribution to political theory that might have been hoped for from someone of his philosophical attainments.? In the preface he announces that he was converted to libertarianism by the decisive force of the arguments,? but no such arguments appear in the book. He has left the establishment of the moral foundations to another occasion, and his brief indication of how the basic views

might be defended is disappointing. I shall explain below why it is unlikely to survive further development. Nozick starts from the unargued premise that individuals have certain inviolable rights which may not be intentionally transgressed by other individuals or the state for any purpose. They are the rights not to be killed or assaulted if one

is doing no harm,

not to be

coerced or imprisoned, not to have one’s property taken or destroyed, and not to be limited in the use of one’s property so long as one does not violate the rights of others. He concludes that the only morally permissible state would be the minimal nightwatchman state, a state limited to protecting people against murder, assault, theft, fraud, and breach of contract. The argument is not one which derives a surprising conclusion from plausible premises. No one (except perhaps an anarchist) who did not already accept the conclusion would accept the premise, and the implausibility of each can only serve to reinforce a conviction of the implausibility of the other. Naturally any opposition to the power of governments will meet with a certain sympathy from observers of the contemporary scene, and Nozick emphasizes the connection between his view and the fight against legal regulation of sexual behavior, drug use, and individual life styles. It is easy to develop an aversion to state power by looking at how actual states wield it. Their activities often include murder, torture, political imprisonment, censorship, conscription for aggressive war, and overthrowing the governments of other countries—not to mention tapping the phones, reading the mail, or regulating the sexual behavior of their own citizens. The objection to these abuses, however, is not that state power exists, but that it is used to do evil rather than good. Opposition to these evils cannot be translated into an objection to welfare, public education, or the graduated income tax. A reasonably persuasive

194

Thomas Nagel

can practical argument for reducing the power of governments is it But power. that of results y unhapp the perhaps be based on doubtful

that a government

limited

to the functions

of police,

becourts, prisons, and national defense would be conspicuously rights.* al individu of ive protect ly especial be nign, or that it would In practice, it would probably include the worst parts of what we have now, without much of the best. That is why those concerned

with individual liberty are usually not opposed to strong government with power to promote desirable ends, so long as the exercise of that power is limited by strong safeguards. Governments should promote what is good and prevent evils, as well as protecting rights. How could anyone disagree? If there is an answer to this question, it must come from the ethical foundation of political theory. Nozick states: Moral philosophy sets the background for, and the boundaries of, political philosophy. What persons may and may not do to one another limits what they may do through the apparatus of a state, or do to establish such an apparatus. The moral prohibitions it is permissible to enforce are the source of whatever legitimacy the state’s fundamental coercive power has.°

I believe that this principle is correct and important. The exercise of state power is not the action of a separate entity with moral rights greater than those of individual persons, rights to use force against persons for reasons that would not justify the use of force by individuals or groups of individuals per se. If governments have the right to coerce, it must be a right possessed by the people who establish and sustain governmental institutions, and those who act through them. There is a problem about stating this position in a way that avoids triviality. For someone who believes that governments have much larger rights than individuals could always add that the existence of such rights implies a corresponding individual right to combine with others to institute a government and act through it to exercise those larger rights of coercion and control. But in such a view, these individual rights would be derivative from the rights of the state, and not the other way around. Nozick’s position, which seems correct, is that individual rights and duties are the basis of what

governments may and should do. But he appears to infer from this ethical principle a strong

Libertarianism Without Foundations

195

epistemological consequence which it does not have: 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.

Abstractly described, this procedure sounds hopelessly misguided.® 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. When we pass from an abstract to a more substantive description, the implausibility of the view increases. For 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. I assume that most readers of Nozick’s book will find no echo of this intuition in themselves, and will feel instead that they can develop no opinion on the universal principles of entitlement, acquisiton and transfer of property, or indeed whether there are any such universal principles, without considering the significance of such principles in their universal application. One might even agree in part with Nozick’s views about what people should do in the limited circumstances that define interpersonal relations in the state of nature, but not agree

196

Thomas Nagel

that the proper generalization of those judgments is their unmodified application to all cases no matter how complex or extended. They might be based instead on principles which give these results for small-scale individual transactions but rather different results for the specification of general conditions of entitlement to be applied on an indefinitely large scale.§ The fact is, however, that 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. The things one is supposed to be protected against are, in order of gravity; killing, injury, pain, physical force, deprivation of liberty of many different kinds (movement, assocation, and activity), destruction of one’s property, taking of one’s property; or the threat of any of the above (with all their variations in gravity). 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. The sources of morality are not simple but multiple; therefore its development in political theory will reflect that multiplicity. 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. Nozick says little about the basis of the inviolability of persons, but the following remark indicates where he would be inclined to look: [W]hy may not one violate persons for the greater social good? Individually, we each sometimes choose to undergo some pain or sacrifice for a greater benefit or to avoid a greater harm: we go to the dentist to avoid worse suffering later; we do some unpleasant work for its results: some persons diet to improve their health or looks; some save money to support themselves when they are older. In each case, some cost is borne for the sake of the greater overall good. Why not, similarly, hold that some persons have to bear some costs that benefit other persons more, for the sake of the overall social good? But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different

Libertarianism Without Foundations

197

individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up. (Intentionally?) To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good from his sacrifice, and no one is entitled to force this upon him—least of all a state or government that claims his allegiance (as other individuals do not) and that therefore scrupulously must be neutral between its citizens.9

It is not clear how Nozick thinks individual rights derive from the fact that each person’s life is the only one he has. He appears to draw the implication that a benefit to one or more persons can never outweigh a cost borne by someone else. This, however, is far too broad a claim for Nozick’s purposes. It is both obviously false and unsuitable as a basis for constraints on the treatment of individuals. To make sense of interpersonal compensation it is not necessary to invoke the silly idea ofa social entity, thus establishing an analogy with intrapersonal compensation. 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. The fact that each person’s life is the only one he has does not render us incapable of making these judgments, and 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 the other. 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

198

Thomas Nagel

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. 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 deliberately treated or used in certain ways, and not to be deliberately 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 catalogue 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. As Nozick points out,! the constraints on action represented by rights cannot be equivalent to an assignment of large disvalue to

Libertarianism Without Foundations

199

their violation, for that would make it permissible to violate such a right if by doing so one could prevent more numerous or more serious violations of the same right by others. This is not in general true. It is not permissible in Nozick’s view (or mine) to kill an innocent person even to prevent the deliberate killing of three other innocent persons. A general feature of anything worthy of being called a right is that it is not translatable into a mere assignment of disvalue to its violation. An explanation of the basis of rights 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.12 Moreover, there is a big difference between suddenly expropriating half of someone’s savings and attaching monetary conditions in advance to activities, expenditures, and earnings—the usual form

of taxation. The latter is a much less brutal assault upon the person.1? Whether this kind of limitation of individual liberty should be permitted, to acquire resources for the promotion of desirable ends, is a function of the gravity of the violation and the desirability of the ends. (And as I have observed, this does not mean that it is justified whenever the result is a maximal social balance of benefits and costs.) Nozick would reply that such ends can be achieved by voluntary donations rather than by compulsion, and that people who are well-off and who deplore the existence of poverty should donate significant portions of their assets to help those who are unfortunate.14 But this is no more plausible coming from Nozick than it was coming from Barry Goldwater. Most people are not generous when asked to give voluntarily, and it is unreasonable to ask that they should be. Admittedly there are cases in which a person should do

200

Thomas Nagel

something although it would not be right to force him to do it. But here I believe the reverse is true. Sometimes it is proper to force people to do something even though it is not true that they should do it without being forced. It is acceptable to compel people to contribute to the support of the indigent by automatic taxation, but unreasonable to insist that in the absence of such a system they ought to contribute voluntarily. The latter is an excessively demanding moral position because it requires voluntary decisions that are quite difficult to make. Most people will tolerate a universal system of compulsory taxation without feeling entitled to complain, whereas they would feel justified in refusing an appeal that they contribute the same amount voluntarily. This is partly due to lack of assurance that others would do likewise and fear of relative disadvantage; but it is also a sensible rejection of excessive demands on the will, which can be more irksome than automatic demands on the

purse. A political theory that reflected these moral complexities would 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.45 After defining a historical principle as one which asserts that the justice of a distribution depends on how it came about,!® and an end-result principle as one which denies this,!7 he defines a patterned principle as one which specifies “that a distribution is to vary along with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions.”!8 His own theory, the entitlement

theory, is easy to describe in these terms. It is a nonpatterned historical principle, for it specifies that any distribution is just if it was’ arrived at by a series of individual transactions among people entitled, by natural rights of acquisition and transfer, to make them. But suppose a theory says that a distribution is just if it results

Libertarianism Without Foundations

201

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.!9 Apart from this defect, the attack is still unsuccessful. Nozick asks us to imagine some patterned principle realized, and then argues that its preservation would require interference with individual liberty: peopie would have to be prevented from using their allocations under the pattern as they wish. For example, preservation of a reasonably equal distribution would require that individuals not be permitted to pay Wilt Chamberlain 25 cents for each basketball game they see him play with the understanding that he can keep it all, even if it amounts to $250,000 a year. This is perfectly obvious,

and it is part of what would be meant by a patterned principle of distribution: the adoption of a general system of acquisition, taxation and exchange that tends to preserve a certain pattern. 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. To suppose otherwise is to beg the question, and that is exactly what Nozick does when he says: There is no question about whether each of the people was entitled to the control over the resources they held in D1 [the original patterned distribution]; because that was the distribution (your favorite) that (for the

202

Thomas Nagel

purposes of argument) we assumed was acceptable. . . . If the people were entitled to dispose of the resources to which they were entitled (under D1), didn’t this include their being entitled to give it to, or exchange it with, Wilt Chamberlain ?2°

This mistake drains the argument of its force. Let me turn briefly to the difficult subject of equality. While the elimination of misery, poverty, and disease are probably more important social goals than the achievement of economic equality, the latter is one of the ends some people regard as legitimate. Nozick’s view is predictable. If inequality arises as a result of the free exercise of entitlements, it cannot be objected to on grounds of injustice, and liberty may not be in any way infringed to reduce it. Since people are entitled not only to the wealth they inherit but to their natural assets,?! further inequalities resulting from the employment of these assets are just. But there is no reason to believe in an absolute natural right to profit from one’s natural assets, even if a less than absolute right to their free exercise is acknowledged as a limitation on the pursuit of equality or other social goals. Someone who regards equality as a good will assume that its achievement does not take absolute precedence over efficiency, liberty, and other values. Nevertheless, more than this is required to answer Nozick, for it is not clear what makes equality of distribution a good thing at all. Nozick does not acknowledge the right of the state to limit liberty to produce any merely desirable outcome. But why should someone with a more standard view about individual rights be in favor of a goal of social and economic equality? Perhaps he can argue that the average level of well-being—both in material terms and in terms of contentment and self-esteem—is likely to be higher in a relatively equal society than in an unequal one of comparable total wealth. Perhaps he will argue that the political effects of economic inequality are harmful to individual liberty and general welfare. But these considerations, though very important, are not reasons for regarding equality as a good in itself; yet that is a common moral view. It cannot be defended by claiming that inequalities are arbitrary unless based on morally relevant differences among people. Arbitrariness is a moral defect only if it can be contrasted with an alternative that is selected on the basis of morally relevant factors.

Libertarianism Without Foundations

203

Unless there is independent justification for equality, an equal distribution is just as arbitrary from a moral point of view as any other. To defend equality as a good in itself, one would have to argue that improvements in the lot of people lower on the scale of well-being took priority over greater improvements to those higher on the scale, even

if the latter improvements

also affected more

people. While I am sympathetic to such a view, I do not believe it has ever been successfully defended. I have dwelt on the book's theoretical shortcomings; there is much in it that I have not discussed, including a final chapter which

describes a pluralistic libertarian utopia,2? and interesting analyses of such diverse topics as Marx’s labor theory of value2? and the treatment of animals.?4 Unlike most works of philosophy, it is funny, fast-paced and a pleasure to read. Nozick’s writing, though inelegant, has great energy, and meets a high standard of clarity and definiteness. One is rarely in doubt about what Nozick is claiming, or about what one denies in rejecting his views. NOTES 1. R. Nozick, Anarchy,

State, and Utopia (1974) [hereinafter cited to

page number only]. 2. Nozick

is the author

of three

important

articles:

“Coercion,”

in

Philosophy, Science, and Method 440 (S. Morgenbesser, P. Suppes & M. White eds. 1969); “Newcomb’s Problem and Two Principles of Choice,” in Essays in Honor of Carl G. Hempel 114 (N. Rescher ed. 1970); “Moral Complications and Moral Structures,” 13 Nat. L. Forum 1 (1968). The book reaches their level of trenchancy only in Chapter 4, “Prohibition, Compensation, and Risk,” a brilliant discussion of the choice among various methods

of dealing with injurious or dangerous behavior: when to prohibit, when to punish, when to require compensation,

when to compensate someone who

is inconvenienced by a prohibition. It is also the chapter with the greatest importance for legal theory. Pp. 54-88. Bo LP Tbk

4. This helps to account for the romantic appeal of anarchism. Nozick’s attempt to refute the anarchist view that even a minimal state will violate individual rights is not, I think, successful. He argues at length that a minimal state could arise by an invisible process from a state of nature without the process violating anyone's rights: people could voluntarily join private protective associations, one of which would naturally achieve dominance over a territory even if not everyone had agreed to join. It could then

204

Thomas Nagel

exercise limited control without violating anyone’s rights. This is supposed to show that a minimal state is morally permissible. But why should the mere conceivability of such a process persuade an anarchist of that conclusion? He would already have been prepared to admit that a minimal state established by unanimous agreement of the participants would be allowable. He just believes no actual state will be of this sort. Similarly, he may credit Nozick with having imagined another way in which a minimal state “could” arise which violated no one’s rights, even though based on less than unanimous agreement. But the likelihood of any actual state meeting these moral conditions will be almost as low. The rejection of anarchism requires the rejection of its moral premises. on Py 6:

6. Nozick defends Micro.” He says:

the procedure

in a section

entitled

“Macro

and

[C]omplex wholes are not easily scanned; we cannot easily keep track of everything that is relevant. The justice of awhole society may depend on its satisfying a number of distinct principles. These principles, though individually compelling (witness their application to a wide range of particular microcases), may yield surprising results when combined together. . . . [O]ne should not depend upon judgments about the whole as providing the only or even the major body of data against which to check one’s principles. One major path to changing one’s intuitive judgments about some complex whole is through seeing the larger and often surprising implications of principles solidly founded at the micro level.

Pp. 205-06. Obviously; but another way to change one’s intuitive judgments about the scope or truth of principles at the micro level is by seeing their larger implications. The fact that the rights of governments derive from the rights of individuals does not imply that we can come to know the rights of individuals without thinking about governments; just as the fact that the properties of molecules derive from the properties of atoms does not imply that we can come to know the properties of atoms without investigating molecules. The logical and the epistemological connections need not go in the same direction: even if political philosophy is logically dependent on ethics, our knowledge of some aspects of ethics may derive from an investigation of political philosophy. 7. The latter is the familiar proviso in Locke’s theory of property acquisition, but according to Nozick it will not operate as a serious restriction in a free market system. P. 182. 8. The example of entitlement that he offers (p. 206) as a decisive retort to such skepticism—a natural right not to be deprived of one’s vital organs for the benefit of others—is plausible partly because of the extreme character of such an assault and partly because there is no possibility that protection of this right will lead to the accumulation of vast hereditary wealth or inequalities of social and political power.

Libertarianism Without Foundations

205

9. Pp. 32-33 (emphasis in original; footnote omitted). 10. See pp. 49-50. ive bee:

12. The fact that a right can be overridden to avoid sufficiently serious consequences does not mean that its violation can be assigned a disvalue comparable to the disvalue of those consequences. For that would give the occurrence of such a violation greater weight in a calculation of outcomes (e.g., when the question is what may be done to prevent such violations by others) than it in fact has. Therefore, although rights may on occasion be overridden, the violation of some people’s rights cannot automatically be justified because it leads to a reduction in the more serious violation of other people’s rights. This issue arises in connection with preventive detention, wiretapping, and search and seizure, all of which might be useful in the prevention of robbery, murder, assault, and rape. 13. It may be objected that taxation must be backed up by the threat of stronger force and even violence. But this arises only if there is resistance at the first level. If the original, nonviolent demand is legitimate, escalation

may occur if the subject resists it and uses stronger methods to resist each succeeding method for enforcing the previous one.

14. Pp. 265-68.

15. Of course distribution is only one of the things covered in any political theory, but we may leave others aside for the moment. 1Gy P53;

Tif; Loo. 18. P. 156. “To each according to his need” would be an example. 19. More specifically, his arguments against Rawls are seriously weakened by a Procrustean attempt to portray Rawls’s principle of distributive justice as a nonhistorical end-result principle. Rawls does not maintain that the justice of adistribution 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, and while he does not mean by this what Nozick means, it certainly restricts the procedures by which a distribution can be justly arrived at. See generally J. Rawls, A Theory of Justice (1971). 20. P. 161 (emphasis in original). ONL. Ves, PPABy, 22. Pp. 297-333.

23. Pp. 252-62. 24. Pp. 35-41.

1] On the Randian Argument ROBERT

NOZICK

The title I have been given is: the moral foundations of capitalism. Many supporters of capitalism, especially among the very young, think that these foundations have already been provided; indeed that we already possess in the writings of Ayn Rand a demonstration, a proof, a cogent argument, an establishment of a moral view from which capitalism can easily be justified. I have two reasons for wanting closely to examine the argument: (1) Some persons are not devoting thought to fundamental issues about morality, thinking that the essence of the job has already been done. (2) The argument itself is an attempt to provide a nonutilitarian-non-social-contract-natural rights ethics.

Since I share the view that such a moral foundation is appropriate and possible and that laissez-faire capitalism is morally justifiable on such a basis, I wish to look closely at an actual attempt. I would most like to set out the argument as a deductive argument and then examine the premises. Unfortunately, it is not clear (to me) exactly what the argument is.1 So we shall have to do some speculating about how steps might be filled in, and look at these ways. It may be, of course, that I have overlooked some other ways, which would make the argument work. If so, I presume someone 206

On the Randian Argument

207

else, who claims to possess and understand the demonstration, will

supply the missing material. As I see it, there are four parts to the argument. (I use the roman

numerals ambiguously to refer both to stages of the argument, and to the conclusions of the stages.) I. to the conclusion that only living beings have values with a point.

II. from I, to the conclusion that life itself is a value to a living being which has it. III. from II, to the conclusion that life, as a rational person, isa

value to the person whose life it is. IV. from III, to some principle about interpersonal behavior and rights and purposes. I shall examine each of these in turn.

I

(1) Only a living being is capable of choosing among alternative actions, or,

(2) Only for a living being could there be any point to choosing among alternative actions, for (3) Only a living being can be injured, damaged, have its welfare diminished, etc., and

(4) Any rational preference pattern will be connected with the things mentioned in (3), and since (5) Values establish a (rational) preference ordering among alternative action,

it follows that (6) Only a living being can have values, with some point to them. Values have a purpose only for living things. To make this point fully clear, try to imagine an immortal, indestructible robot, an entity which moves and acts, but which cannot be affected by anything, which cannot be changed in any respect, which cannot be damaged, injured or destroyed. Such an entity would not be able to have any values; it would have nothing to gain or lose; it could not regard anything as for or against it, as serving or threatening its welfare, as fulfilling or frustrating its interests. It could have no interests and no goals. (“The Objectivist Ethics”, p. 16.)

208

Robert Nozick

I do not wish here to enter into complicated issues about what particular cognitive and choice functions (if any) machines could be capable of performing. Does coming to know that some situation has been realized count as a machine’s being “changed”, in the requisite respect? Note the assumption that each of our values concerns how things affect us, a stronger assumption than that our values concern how some affectable being or other is affected. (Some views would claim to hold values unconnected with how any being is affected, e.g., religious views which hold that it’s better if God is praised and worshipped, not because God is affected by this, but because it’s a fitting or suitable response to him. Or views which maintain that it’s better that talented and able people be respected and admired, even if they never learn of it and even if their knowing of it doesn't (seriously) affect them; and better not because of the effects on us of doing so, but because this is a fitting and appropriate response to other people's achievements.) Presumably then I can’t value, or, in a valuing fashion, act to achieve some state of affairs, in a far off place, knowing that I shall never know whether my act has actually succeeded or not, and knowing that in either case its consequences will not affect me. If there were an island somewhere where we couldn't go but could send things, and from which we would not be affected in any way, then, it seems, we could not value their being moral people and having just social arrangements, sending them copies of some book whose reading we think is morally instructive. Perhaps it is being claimed, not that each value in each instance must be connected with oneself being affected, but that, for a being to have values, some of them must be so connected. So that a being which changed so that it became immortal, indestructible, unable to be affected and so on could not evalute its alternatives and act so as to make probable the realization of some value it had previously held (e.g., the lessening of injustice in the world) knowing that (because of isolation) it would not know whether its act had succeeded. Or perhaps the claim is that though a being can continue to hold values in this state, if it was always in this state, and always had been, and always realized that it was, it couldn’t hold values. It couldn't read, for example, Atlas Shrugged and become convinced by the arguments (we are not placing in doubt the machine’s having certain cognitive capacity: so which part of the argument depends, for its persuasiveness, upon the reader's being vulnerable and

On the Randian Argument having an affectable welfare?) and come

209

to value and act so as to

realize a world in which the ideals of that book are instantiated. But why couldn’t it? Must it say, “What's all that to me?” Issues about the centeredness of one’s goals would repay further study (I take up some connected issues with some of the examples in section V), but I propose to proceed to see whether particular goals and values can be gotten out of (6) and a self-centered view of goals.? II

From the consideration of the preceding section a conclusion is to be reached to the effect that the prolonging and maintaining of life is itselfa value. Note, first, that it is unlikely that such a conclusion can be reached without the introduction of significant additional material. For suppose that death was a great value. (Suppose.) Only living beings could

achieve

it, strive for it, choose

to reach

it,

striving for it would establish a preference ordering among alternative actions, and guide the choices of a living being. It seems that death’s being a value is compatible with all that has been said in section I, and hence that the considerations of section I do not rule this out. One cannot reach the conclusion that life itself is a value merely by conjoining together many sentences containing the word “value” and “life” or “alive”, and hoping that by some process of association and mixture, this new connection will arise. There may be many other connections between life and value; the question is: what is the argument for the particular connection embodied in “Life itself is a value”? Consider the following argument: (1) Having values is itselfavalue (2) A necessary condition for a value is a value (3) Life is a necessary condition for having values. Therefore, (4) Life itself is a value. But is (2) true?

Are

all necessary

conditions

for values,

values

themselves? If getting cured of cancer is a value, is getting cancer (which is a necessary condition for getting cured of it), or having (say) a particular virus act on one, a value? And why is having values itself a value? We might have the following argument for (1):

210

Robert Nozick

Achieving values is valuable. We are not pre-programmed to achieve values. Therefore, if we are to achieve values more often than accidentally, we will have to choose actions which will do so, with doing so as their goal. But intentionally choosing actions to achieve things is itself having and acting on the basis of values, and therefore having and acting on the basis of values is itself valuable. Note that this argument, in reaching its conclusion, itself seems to use (2) as a principle of inference. The argument also begs the question against death’s being a value, for if it is, we are preprogrammed to achieve it. Perhaps, instead of (2) we would have (2') If something is a necessary condition for (achieving) all other values (any other value) then it itself is a value. Ignoring the issue of whether the question of death’s being a value isn't thereby begged, is (2’) true? (And let us pass over, for now, whether (2’) is meant to rule out there being a situation in which dying is necessary in order to achieve one’s legitimate values.) Because “not having yet achieved all values” is a necessary condition for achieving any given value, for achieving each value, is it itselfavalue? [We could also ask this question in extension, using a list of all values, if we had such a list.] Similarly, if on Miss Rand’s account being vulnerable, destructible, mortal, is a necessary condition for achieving (and having) values, does it follow that this condition itselfis a value? We do best, in view of these difficulties, to consider another line of argument, which we might introduce by considering an objection to our earlier contemplation of the possibility of death’s being a value. “How can death be a value? Value is judged against a standard of injury, harm, etc., and the greatest of these is death”. (But on what basis, which we have been given, do we know that the greatest harm isn’t the extension of life’s experiences?) In an essay by someone who had been closely associated with Miss Rand, which may shed light on her intentions, we find “ ‘should’ is a concept that can have no intelligible meaning, if divorced from the concept and value oflife”.? Here we have an example of some form of transcendental argument, so beloved by philosophers and so tricky to handle and get clear about. Before proceeding, we should have before us another aid, John Hosper’s sympathetic presentation in his Introduction to Philosophical Analysis (Second Edition)

On the Randian Argument

S|

Suppose someone said, “Prove to me that life is valuable.’ Rand would hold that his request contains an inconsistency. It is, she holds, the existence and

nature oflife that sets the conditions for what is valuable: it is the distinctive nature of life that gives rise to the need for values. In saying this, one is

saying much more than simply that man must be alive in order to pursue values: one is saying that man must pursue values in order to remain alive—and that this is the base of ethics and of all questions of moral value. Just as (Rand would say) it is only the concept of life that gives rise to such concepts and health and disease—just as it would be meaningless to talk of health and disease except with reference to the standard and goal of life, and talk about health is meaingful only in that context—so it is meaningless to speak of values, of good and evil, except with reference to the needs of a living organism. The concept of value, Rand maintains, is genetically and epistemologically dependent on the concept of life, just as the concept of health and disease are genetically and epistemologically dependent upon the concept of life. Thus to say ‘Prove that it is morally obligatory to value life’ is similar to saying “Prove that it is medically obligatory (that is, necessary for health) to value life.’

Here we have the claim that apart from a background where life is assumed as a value, no content can be given to “should’— statements and if life is assumed as a value, then content is given to “should”, namely (roughly) one should do those things which maintain and enhance one’s life. This account is of the form: you should do an act if it leads to the greatest realization of X (where X is the greatest value). Even if one were to accept this form of account,# why must we substitute something about life for X? Cannot content be given to should-statements, by substituting “death” for X, or “the greatest happiness of the greatest number’, or any one of a vast number of other dimensions of possible goals? And wouldn't such content enable “should” statements to guide choices, apply only to living beings etc.? Given this, it is puzzling why it is claimed that only against a background in which life is (assumed to be) a value, can “should”-statements be given a sense. It might of course, be argued that only against this background can “should’-statements be given their correct sense, but we have seen no argument for this claim. Others who find a goal-directed type of account of “should” illuminating, but who do not know what in particular to substitute for X, may have “should” with the content “leads to the greatest value”, leaving it as an open question what is the greatest value.

Robert Nozick

O12

These people, in asking “Should I do A?” would be asking “Does A lead to the greatest value (whatever that is)?” For these people, and those who substitute for X something other than life, an argument is needed to demonstrate that life is the greatest (or a) value. I do not see that such an argument has yet been offered. Iil

Ignoring the difficulties discussed in Section II, suppose that we have gotten, somehow, to the conclusion that for each individual, his life and the prolongation of it is a value for him. How do we get from here to: III For each man, the preservation and prolongation of his life, qua man, as a person, is a value for him.

Possibilities: (1) What man’ is, qua man, is completely determined by what's special to man (which is rationality). And what's special to beings should be preserved and should flourish. Why? Ignoring the dodo argument (viz., it’s a tragedy if any bit of diversity becomes extinct), we focus on the idea that what is special to a thing marks its function and from this we can get its peculiarly appropriate form of behavior. But no conclusion could depend, in this way, on some property P being special to man. For suppose it turned out that dolphins or some other being somewhere also had property P; would this stop the conclusion? It might be said that here we would discover a new kind of thing (viz. man or dolphin) and P would be special to it. But there might be nothing special to man, for all his nice properties might be had by other things which have further super-duper properties Q also, which man doesn’t have. (Call these things, merely for a label, angels.) It might now be said that man (or dolphin) does have something special, namely P and not-Q. But how could one think that anything depended on its being special; that something of moral interest did not follow from Man has P

in conjunction with other premises, premisses conjoined with

but did follow from these

On the Randian Argument

213

Man has P, and nothing else has P?

Could discoveries on other planets show us that our fundamental moral conclusions don’t follow? Surely, it’s in virtue of man’s having

P that conclusions follow, and not because other beings don’t have P. All this is not to deny that it is heuristically useful to focus on what is special to man. For if we don’t apply moral standards and principles to the other beings we actually have encountered, and we do to man, then we can ask what properties man has in virtue of which he is moral agent and a subject of moral judgments. Something fundamental to ethics does lie in those properties which do distinguish man from other things we have actually encountered, but nothing morally fundamental depends on the fact that these properties are distinguishing ones. (2) What man is, qua man, is determined by his essence, which is rationality. He should act so as to continue his essence. (a) If the essence mentioned in this argument is real essence, it’s

a dubious theory. Also, it (e.g., a man) would no longer exist if its essence changed (but another thing would), so that if its continued existence is a value, so is the continued existence of its essence. However, in the case of this argument, its essence doesn’t change,

it's just not exercised. The being continues to exist. And the conclusion of II is too frail a reed to hang such an argument on. For if it stops existing, another kind of value pursuer, intimately connected with it, will exist. And why should it care which does?

(b) If, in this argument, essence is: those properties, relative to current knowledge,

which underlie,

systematize,

account for etc.

the rest of our general knowledge of such entities (those properties mentioned in our most fundamental, at the time, reducing unreduced theory about the entities, or if two different such theories,

both sets of properties) then the injunction to preserve and exercise such properties requires reasons. Why shouldn't one change? Surely,

it is not merely a conservative

injunction.

Two

answers

suggest themselves. One, it’s change to a lower form of life, and so shouldn’t be done. But one needs a theory to back this up, which isn’t given, and secondly it implies that it would be all right, if possible, to change to a higher essence. Even though if one could and did change to an angel-like being, one wouldn't be preserving one’s life qua man. The second, and more interesting answer, is that

214

Robert Nozick

one won't survive (period), as alive, if one doesn't live as a person.

This deserves consideration as a separate argument for III. (3) Ifa person does not prolong his life as a rational being, he will not survive for long afterwards as any kind of living being. For, the argument runs, we have no automatic way of knowing what will prolong our lives. We have to figure this out, using our conceptual apparatus. And then we have to devise ways to do this. Otherwise, we will not survive at all, unless by accident, or unless some other

rational being cares for us. And, if the goal is to prolong one’s life (in years) and minimize, constantly, the probability of its ending, then, much knowledge, invention, etc. will be useful.

There remains the possibility of being a “ward”, making one decision to let another care for you, give you orders, etc. To this it might be objected that this might not work out (and you wouldn't know when to desert the ward-ship before it begins to sink), and

that such a life is parasitic and depends upon another person's not living as you do. There are two forms to the parasite argument, a consequential one and a formal one. The consequential argument is that being a parasite won't work in the long run. Parasites will eventually run out of hosts, out of those to live off, imitate, steal from. (The novel Atlas

Shrugged, argues this view.) But in the short run, one can be a parasite and survive; even over a whole lifetime and many generations. And new hosts come along. So, if one is in a position to survive as a parasite, what reasons have been offered against it? The formal argument is difficult to make precise, and difficult to fit into a Randian view. It holds that moral rules are applicable to everyone, so that if following certain rules and values can work only if others follow different ones, and can work only because others follow different ones, then the rules and values in question cannot be the correct ones. [“What if everybody did that?”] But it is difficult to find the appropriate level to speak at, using this argument. My being a teacher succeeds only because other people do other things, e.g., grow food, make clothing. Similarly for the activities of each of these others. The question “What if everyone did that?” shouldn't apply here, but how is the case to be marked off? Intuitively, there is some description of what I’m doing [accepting

On the Randian Argument

215

a job to fill need, etc.] which is o0.k.; that is, it is permissible for everyone to do that. So, there being some description D1 which fits what I do, where it would be disastrous if everyone did D1, doesn’t show I shouldn't

do it. For there may be another description De which also fits what I do, and it would be all right if everyone did things of sort De. But we should not convert this fact into a condition which says that if there is some description which fits my activity which is such that it’s o.k. if everyone instantiates that description, then my activity is permissible. For this is too weak a sufficient condition for moral permissibility. Presumably some general descriptions of this sort would also fit the thief's activity, e.g., “doing things which lead to their being fed”. Here it might be suggested that the appropriate description is that which presents the essence of an action. But even if such a notion could be clarified, as in (2b) above, its application here would beg the question, for especially important among the relevant general facts to be accounted for by the essence will be moral facts. Hence we must first agree about these moral facts before agreeing about the essence of an act, so that considerations about the essence of acts cannot come first as a basis on which to ground their moral nature.

My purpose here is not to pursue the details of how such generalization arguments might best be stated (there is a growing literature on the subject), but to note that if such arguments can be made to work, they will involve extra principles (and not merely the claim that a particular case of parasitism is doomed to fail). Some philosophers view providing the foundation for such principles, and stating them precisely, as one of the central tasks of moral philosophy, but it is one that has not even been attempted by Miss Rand. One final way to get a formal principle should be mentioned. It might be said that a rational person follows principles, general policies, and so we must consider those principles of action which make man’s survival possible. But it has not been shown why each person must follow the same principles, and why I may not, as a rational being, have a clause in mine which recommends parasitism under certain conditions.

216

Robert Nozick IV

Supposing that it is granted that living as a rational being is, for each person, a value, how do we get to some social conclusion about people's rights? The basic social principle of the objectivist ethics is that just as life is an end in itself, so each living human being is an end in himself, not the means to the ends or the welfare of others—and, therefore, that man must live for his

own sake, neither sacrificing himself to others nor sacrificing others to himself. To live for his own sake means that the achievement of his own happiness is man’s highest moral purpose.®

Starting with: (1) For each person, the living and prolongation of his own life is a value for him to get to

(2) No person should sacrifice his life for another we would need, in addition to (1) (1') For each person, the living and prolongation of his own life (as a rational being) is the greatest value for him. [and: Each person ought to pursue his greatest value. ]No argument has been offered, yet, for (1). Miss Rand has some things to say about life being an ultimate value, which might lead her to accept (1’), but these things, in view of our earlier discussion in Section II of life as a value, aren’t sufficiently clear and forceful to establish

(Lens But suppose we have (1’), and have gotten to (2). How do we go on to argue for the important social conclusion: (3) No person should sacrifice another person (’s life) to himself (his own.) Why shouldn't he? There is the parasite argument already considered: sacrificing another's life to your own is not in your own long run interests. But this is no argument to convince (or apply to) someone living at a time before the victims have run out, e.g., the

present. A more promising approach focuses on the notion of rights. Consider the following argument. (4) Each person has a right to his own life, i.e., to be free to take the actions required by the nature of a rational being for the

On the Randian Argument

217

support, the furtherance, the fulfillment, and the enjoyment of his life. (5) Since each person has this right, to force a person to sacrifice his interests to your own violates this right. (6) One should not violate another’s rights. Therefore (7) One should not force another to sacrifice his interests for your own or that of yet another person. But why does each person have a right to his life, to be free to perform those actions? If we grant, for the purposes ofthis argument, (1’) above, and we add (8) Each person has a right to be free to pursue his greatest and highest value, then we get (4) above. But (8) is surely too strong: did Hitler have a right to pursue his highest value? (But, it will be said, his highest value wasn’t a rational value. So let us focus instead on “should”.) Perhaps instead the argument for (4) is as follows: (9) a) For each person, he should pursue the maintenance of his life as a rational being. b) The “should” in a) is and should be of more weight, for

(10)

him, than all other “shoulds”. a) Each person has a right to do what he should do. b) Each person has a right, which is non-overrideable, to do

what he should (where this “should” has the most weight) do. (9) is meant to follow from other considerations which we have examined in section I, and found inconclusive. What of(10)? The force of “right” here is that others shouldn't intervene, using force, to prevent one from exercising it. The question is: why, given that you should do something, shouldn't I intervene to stop you?” Perhaps one has a vision of a morally harmonious universe in which there are no irreconcileable conflicts of duty, of shoulds, and in which if you should do something, I shouldn’t forcibly prevent you from doing it. But no conclusive arguments have been offered for such a vision. If one believes that ethics involves (something like) one dimension or weighted set of dimensions which is to be used to judge us and the world, so that all of our moral activity (the moral activity of each of us) is directed towards improving (maximizing) the

218

Robert Nozick

world’s score on this dimension, then it will be natural to fall into

such a vision. But if we legitimately have separate goals, and there are independent sources of moral commitment, then there is the possibility of an objective conflict of shoulds. So that perhaps, with some slight modification of Sophocles’ characters, Antigone should bury her brother and Creon should forbid and prevent this burial.* But Miss Rand needs something even stronger, for her argument, than objective harmony of “shoulds”; she needs an objective harmony of interests.? What I shall call the optimistic tradition holds that there are no objective conflicts of interest among persons. Plato, in the Republic, being the most notable early exponent of this view, we might appropriately call it the Platonic tradition in ethics.1° Miss Rand falls in this optimistic or Platonic tradition in ethics, believing that there are no objective conflicts of interest among persons, and that there is no situation in which it is in one person’s interests to force another to do something which it is not in his interests to do; no

situation where one person’s forcibly stopping another from advancing his interests, advances his own interests. No knock-down argument has been offered for this thesis,1! and Miss Rand has not produced (or tried to produce) any reason why, if such conflicts are possible, I, in following my interests, should limit myself so as not to

interfere forcibly in your pursuit of your life as a rational being. Miss Rand's position is a constrained egoism; egoism subject to the constraint of not violating certain conditions (which are other persons’ rights).!2 One way to argue for constrained egoism is to argue that it is identical with egoism to argue that the constraints add nothing because they are in your rightly understood interests (the optimistic tradition). If such arguments equating the egoism and the moral constraints fail, then a holder of this position will have to choose. V

We have until now considered only one part of the social nonsacrifice principle (don't sacrifice another to yourself), and found the arguments for it inconclusive. We turn now to the other part of the principle: don't sacrifice yourself to another: live for your own sake.

On the Randian Argument

219

“To live for his own sake means that the achievement of his own happiness is man’s highest moral purpose”. Is it? We have action, endorsed by Miss Rand, in the novel Atlas Shrugged, which appears incompatible with this. In the novel, John Galt risks his life to save that of Dagny Taggart, whom he loves, and he says that he will kill himself if she is tortured to make him talk. How can he do this? He says to Dagny Taggart: “It won't be an act of self-sacrifice. I do not care to live on their terms. I do

not care to obey them and I do not care to see you enduring a drawn-out murder. There will be no values for me to seek after that—and I do not care to exist without values.”

But this is quite incredible. For it seems from this that, were Dagny Taggart tragically to suffer and die of some disease, then Galt would commit

suicide.

It would be a terrible loss, but does Galt, “the

perfect man’, have so little moral fiber and resources, that life would be intolerable for him ever afterwards [and would the agony of the time immediately after her death outweigh the life which could be led after time has done its work]? Would he come from Galt’s Gulch to attempt to save her life, if he had the option of staying there, obeying no one else, and not being present to observe her murder? Would Galt save Dagny Taggart’s life, knowing that this will be at the cost of his own? Is this inconsistent with his principles? Would doing this mean he wasn't an egoist? A fruitless path to follow? is to say that it is the short period of happiness while he is sacrificing his life that justifies the whole thing. So that, in thinking about a situation in which both are unconscious and only one can be saved by a third party, he would prefer it were himself because in that situation he wouldn't get to feel the happiness of saving her life? Or are we to imagine that in this thinking about this situation he does prefer that her life be saved, and this because of the happiness he

now gets in thinking about it? But (a) we can imagine he’s answering, quickly, a large number of questions on some psychological test, so that there's no time to pause for a glow of happiness. Is it now for the happiness he knows

220

Robert Nozick

he'll feel after the test is over (mightn’t he forget and not recall the question?) that he answers as he does? (b) Why doesn’t he feel sad in contemplating his dying and her surviving? To be sure, he may think it’s better than their both dying, or her dying and his surviving, but why should the existence of some worse alternatives than alternative A make one happy in contemplating A? In fact, it doesn’t, and we don't have this easy path to happiness. (c) Most importantly, this answer gets things backwards. For one would be made happy by placing one’s family in the only places in the raft!4 only because one values their survival above one’s own, their happiness above one’s own. It is not that one (chooses to) have these values, because knowing

one has fulfilled them will make one happy. And it is not that I do it because not doing it will make me afterwards feel guilty. For this would be so only if there were some other moral reason to save their lives over one’s own; it cannot be that the primary reason is to avoid later guilt. And also, we could imagine cases where the knowledge is expunged via a chemical producing selective forgetting. Such science fiction possibilities cause difficulties. If one were concerned only with one’s child’s happiness, and one had the capability, one would implant a device to get the child to act on principles P (the correct moral principles) except in situations S (where he knows that deviating from them will be in his interests, e.g., by murdering someone and taking his fortune) where he will deviate from them, afterwards forgetting that he’s done so. Such a person would be happier than one only following principles P, and his life will be identical to one with only principles P, except at a few selected times. Furthermore, he will think he always, with great integrity follows principles P, and he will have great self-esteem. And if someone were concerned only with his own happiness, he would wish that he himself had been so preprogrammed. If one doesn't wish this for oneself, then one isn’t concerned

only with

one’s own happiness. Saying that one is so solely concerned, but such a preprogrammed person can’t be happy because he fakes reality begs the question (ignoring the fact that he doesn’t fake it: it’s faked for him); it seems

as though one can describe a case where

“rationality” (and rational self awareness) and happiness diverge;

On the Randian Argument

221

where someone less rationally self aware will be more happy. If in contemplating this case you would choose rational self awareness and moral rectitude, rather than happiness, then the former have independent value, and are not justified in your eyes only because they lead to happiness. Driving the point further, suppose we read the biography of a man who felt happy, took pride in his work, family life, etc. But we also read that his children, secretly, despised him; his wife, secretly, scorned him having innumerable affairs; his work was a subject of ridicule among all others, who kept their opinion from him; every source of satisfaction in this man’s life was built upon a falsehood, a

deception. Do you, in reading about this man’s life think: “what a wonderful life. I wish I, or my children, could lead it”? And don't

say that you wouldn't want to lead the life because all the deceptions and falsehoods might come out making the man unhappy. They didn't.

Of course,

it is difficult to imagine

the others

behaving

appropriately, and the person himself not being nagged by doubts. But is this the ground of one’s reaction? Was it a good life? Does it lack happiness? This man lived a lie, though not one that he told. We can imagine other cases. You have what you believe is a private relationship with someone. However, unbeknowst to you, I am filming it with my super-duper camera and sound equipment, and distributing the film to people whom you will never encounter. Nothing in your life is changed by the fact that people are packing the pornographic movie theaters in Outer Mongolia to keep up with the latest serial installment in your life. So, should anyone care? And is the only ground on which my action can be criticized, the nature of all viewers’ experience?!5 I have listed all these examples, not only to bring the reader to feel the inadequacy of Miss Rand’s view,‘® but for another purpose as well. For the examples we have discussed count against a more general view as well, which we might call experiential ethics. Put briefly, experiential ethical theories hold that the only facts relevant to moral assessments of actions are how these actions do, or are intended to affect the experiences of various persons. The only morally relevant information (though other information may be relevant via being evidence for this kind) is that about the distribution of experiences in society. Theories will differ about which

PPP)

Robert Nozick

experiences they pick out, or about the criterion of optimal distribution of experiences, but they will agree that all of the considerations have to do with such experiences, and how they feel from the inside. Indeed, it may seem, how could anything else matter other than the experience people have, how things feel from the inside. What else could there be that’s of any importance? It is a task of some interest to explain what else does matter, and why, and to account for the pull of the experiential picture on us.+7 Let me, in closing, reiterate that my purpose has been to examine Miss Rand's arguments for her conclusions. It has not been to argue that death is a value, or that we should sacrifice others to ourselves,

or that people don’t have rights to our non-interference in their lives, or to demean the virtues of rationality, honesty, integrity, productiveness, pride independence, justice. It has been to see whether,

in her published

work,

Miss

Rand

indeed

objectively

establishes her conclusions. She doesn't.

NOTES

1. The main sources are Atlas Shrugged, especially Galt’s long speech, and the essay “The Objectivist Ethics” in her book of essays The Virtue of Selfishness. The other essays in this book are helpful also, (later references to some of her other essays will be to essays in this book) as are her other books, including Introduction to Objectivist Epistemology, in understanding her views. Since I shall be quite critical of Miss Rand’s argument in the remainder of this essay, I should here note (especially since she has been given a largely vituperative and abusive hearing in print) that I have found her two major novels exciting, powerful, illuminating, and thought-provoking. These virtues, even combined with a “sense of life” that is worthy of man do not, of

course, guarantee that her conclusions are true, and even if we suppose they are true, all this does not, of course, guarantee that the actual arguments offered will be cogent, that they will prove their conclusions. Nothing I say in this essay is meant to deny that Miss Rand is an interesting thinker, worthy of attention. 2. Note

in passing

that persons

may

have

innate

preferences

uncon-

nected with their own welfare, and survival. There is a natural selection argument that, in the evolutionary process, preferences that tend to help keep you alive to the reproductive age will be selected for, but also there are natural selection arguments that innate preferences for behavior which

On the Randian Argument

223

is reproductive behavior, and for behavior after reproduction which enhances the chances of the progeny’s survival, even to destroying oneself to guard one’s young, will be selected for in the evolutionary process. So beings may be preprogrammed or predisposed to do things which lessen their individual chances of survival. 3. Nathaniel Branden, “Rational Egoism: a Reply to Professor Emmons’, The Personalist, Spring 1970, p. 201. 4. It may seem a necessary truth that “right”, “ought”, “should”, etc. are to be explained in terms of what is (intended to be) productive of the greatest good. So, it is often thought, that what is wrong with utilitarianism

(which is of this form) is that its conception of good is too narrow. It doesn’t, for example, take rights and their non-violation into account in the proper way, but leaves them a derivative status. (Hence many of the counterexam-

ple cases to utilitarianism; punishing an innocent man, to save a neighborhood from a vengeful rampage, etc.) But even if one includes the nonviolation of rights into a theory in a primary way (and those of us for whom there is some

desirable society in which we would choose to live, even

though in it some ofour rights are sometimes violated, rather than move to an island on which we could survive, alone, do not think that it is the sole

greatest good), one may include it in the wrong place, in the wrong manner. For suppose we build into the desirable endstate to be achieved, some condition about minimizing the amount and significance of the violation of rights which takes place in the society. We then have something like a utilitarianism of rights, which could still require us to violate someone's rights if this act of violation leads to a minimizing of the amount of violation of rights in society. It might do this perhaps by deflecting others from their intended action of gravely violating people’s rights, removing their motive for doing it, diverting their attention, and so on. (A mob rampaging through a part of town, killing and burning, will be violating the rights of those living there, and so one might try to justify one’s act of punishing someone you know to be innocent of the crime which enraged the mob, on the grounds that this action will lead to a minimizing of the weight of the violations of rights in the society.) As against this conception, which builds rights into the end-state to be achieved, one might say that their proper place is as a constraint upon the actions to be done. So the structure of the view is: Among those acts available to you which don’t violate constraints C, act so as to maximize goal G. This differs from one which says: act so as to maximize G, and which tries to build the side constraints C into the goal G. For the view with the side constraints forbids your violating having the minimizing of the violation of these constraints in the goal, allows you to violate the constraints in order to lessen the total amount of violation of such constraints in the society. I

224

Robert Nozick

ignore questions about finding a way of putting the side-constraint view in the form of the goal—without—side-constraints view, e.g., perhaps by having a distinction made, in the goal, between your violating the constraint, and someone else’s doing it, where the former is given infinite weight in the goal, so that no amount of stopping someone else’s doing it can outweigh your violating the constraints. Even with this possibility, notice that indexical expressions (“my doing something’) appear in the goal. I also ignore questions about whether sometimes you are allowed to violate rights of innocents in order to prevent monstrous deeds by others. For example, suppose that the only way to have stopped the Nazis from conquering all, was to have used some weapon on them which would have also killed innocent people in the city attacked who couldn't leave and werent choosing to stay there. Perhaps avoiding great moral horror swamps people’s rights, so that one would be justified in doing something one knew would kill innocent people, in order to stop the horror. (See Michael Walzer’s paper “World War II: Why Was This War Different?”, delivered before the American Political Science Association, Sept. 1970 meeting.) The possibility of “swamping” of rights may lead one to think that it is the goal structure, with a-»weighting of constraints inside the goals, which is appropriate, rather than the structure with absolute side constraints. But other structures are possible, e.g., a side-constraint structure with principles governing the setting aside of the whole structure. (But since many of the set aside structure's features will have to reappear again in its replacement, is this the proper way to view things?) These issues, connecting with some discussed in my “Moral Complications and Moral Structures”, Natural Law Forum, Vol. 13, 1968, pp. 1-50, are very complex, and I hope to discuss them in detail on another occasion. These considerations enable us to clarify a difficulty with the classical conception of the night-watchman state, which limits the legitimate functions of the state to the protection of its citizens against violence,

theft,

fraud, and to the enforcement of contracts, ete., but specifically excludes redistributive tasks. The difficulty (which I first presented in a paper, “A Framework For Utopia,” delivered at the APA Eastern Division Meeting in

1969, with Sidney Hook as commentator) is that the protection of people in this way costs money (for detectives, police to bring criminals into custody, courts, prisons). How is to be paid for, and, in particular, is there some non-redistributive way offinancing it? We might imagine a system in which the state provides these protective services only to those who specifically pay for them, with perhaps different packages of protective services offered for different fees. People who don’t buy a protection contract don’t get protected. Now consider this system of an individual's purchasing protection from the state, combined with a voucher system (cf. Milton Friedman’s

On the Randian Argument

225

school vouchers, which, of course, allow the people a choice of schools) funded by taxation, under which all people, or those in need etc., are given vouchers, backed by the funds collected by taxation, which can be used only for the purchase of a protection policy from the state. It is clear that the latter system is redistributive (compare it to the former), yet this latter system is equivalent to the system of the night-watchman state. So, unless some other nonredistributive method of financing protection for everyone can be found (and, on the face of it, it is difficult to see how it can be), the

night-watchman state itself performs some redistributive functions (viz., having some people pay for the protection of others). And, it might well be asked, if this redistributive function of the state (redistribution in order to

protect everyone) is legitimate, why is redistribution for other attractive and desireable purposes not legitimate as well? On the other hand, if the non-redistributionist accepts something like the first system described, then his position will seem to many to be inconsistent, as well as monstrous. I wish here to focus only on the first of these charges. The proponent of the night-watchman state is greatly concerned with the violation of rights, and with protecting these rights; so that he makes the protection the only legitimate function of the state, protesting that other functions are illegitimate because their performance will itself involve the violation of rights. How can he then, given his paramount placing of the protection and non-violation of rights, move to the first position which would, it seems,

leave some persons’ rights unprotected or ill-protected; how can he do this in the name of the non-violation of rights— This objection assumes that the proponent of the first system is a “utilitarian of rights,” whose goal is, say,

the minimization of the amount and significance of the violation of rights in the society, and who will pursue this goal, even through using means which themselves violate people’s rights. But if he places the non-violation of rights as a constraint upon action, rather than building it into the endstate to be realized (it may, let me hasten to add, occur in both places), and his conception of rights is such that your being forced to contribute to another's welfare violates your rights, and is such that someone else’s not providing you with something you need greatly, essential to the protection of your rights, does not itself violate your rights (though it may facilitate, or avoid making more difficult, someone, else’s doing so) then this theorist will be led to something like the first system of individuals purchasing protection for themselves (and those others they voluntarily choose to do so for). And this will be a consistent position. (That it is a consistent position does not, of course, show that it is an acceptable position.) Given the subject of this essay, we do well here to mention Ayn Rand’s proposal, in her essay entitled “Government Financing in a Free Society.” Briefly put, her suggestion is that the government enforce the contracts of

226

Robert Nozick

only those who have paid a special fee (others may sign contracts backed by trust, desire to continue their good reputation etc., but not by government’s powers of force) and that the government's other legitimate functions be financed out of the funds so collected from those who voluntarily choose to make use of (and pay for) the government's contract enforcing powers. But it is difficult to see why she finds this a legitimate solution to the problem. For the government has a legal monopoly on the use of force, and the proposal involves the government charging extra to enforce contracts, in order to cover the costs ofits other protective functions. (Compare what it would charge for enforcing contracts if it did not take,on these other protective functions.) Why is this not illegitimate forcible redistribution, and isn’t talk of people voluntarily dealing with the legal monopoly (and voluntarily paying the higher fees to cover the legal monopoly’s other functions?) too quick. If in the United States today, the post office, with a legal monopoly on the right to carry the mails, charged one dollar per letter, in order to cover the costs of other redistributive activities, (and thus charged more than even a monopolistic post office, covering its costs, which was singlemindedly devoted to delivering the mail) would Miss Rand think that a legitimate means had been found to, finance redistributive activities, say the educational costs of college students. Could anyone who otherwise thought that there was a problem with governmental redistributive activities, feel that problem is avoided by tying redistributive activities to the provision of some service protected by a legal monopoly? To be sure, there are powerful arguments for the state’s having a legal monopoly on the use of violence (rather than allowing e.g. private contract-enforcing firms to use force to enforce contracts they have been hired to enforce), as there are not for the post office’s having a legal monopoly to deliver the mails. But since the arguments for the state’s having a monopoly on the use of violence do not involve redistributive considerations, it is difficult to see why it is legitimate to allow the monopoly thus established to exploit its monopolistic position in order to pursue redistributive aims. These considerations are not addressed to and will have, perhaps, little interest for those who find no problem with the state’s forcible redistributive activities; they are meant merely to point out that those who do find a problem cannot avoid it by slipping the state's redistributive activities in through the (only) back door, in the fashion of Miss Rand. 5. Rand, “The Objectivist Ethics”, p. 27 6. See also our discussion in section V, which considers a case where John Galt seems not to act on 1. 7. If rights are explained as “conditions of existence required by man’s nature for his proper survival”, then we can reconstruct the Randian argument for a right to life, but this argument will not answer the question:

On the Randian Argument

227

why should I not violate another’s right to life; why should I not intervene by force to eliminate one of the conditions of another man’s existence required by his nature for his proper survival? That is, with this explanation of rights, argument is needed for (6) above. If we assume that rights are not to be violated, and others should not forcibly intervene in the exercise of someone's rights, then argument is needed to the conclusion that a person does have a right to his own life, that is, that others shouldn’t forcibly intervene in it, even granting that its maintenance is his highest value. Taking either approach, we face the question of why one person shouldn't intervene by force to thwart the conditions of another man’s existence. A similar question is raised by Mortimer Adler's argument in his The Time of Our Lives: The Ethics of Common Sense (1970) where there is a transition (Chapter 14, Section 2) from an individual's moral obligation to pursue his own real good to an individual’s moral right (entailing obligations of others not to interfere) to pursue his own real good. He attempts to bridge this gap (Chapter 16) by grounding our moral obligation not to violate the rights of others on our obligation to make a good life for ourselves. He argues as follows: 1) Each of us needs civil peace as a means of making a good life for ourselves. Every universal act which injures other men or the community is a breach of civil peace. “Hence when I act unjustly toward others or act in any way that is contrary to the good of the community, I am injuring myself. It may not appear to be so in the short run; I may gain apparent goods by my injustice toward others or by criminal activities that injure the community itself. But in the long run, I may have gained these apparent goods only at the loss of a real good that I need—the civil peace of the community in which I live. It is only in the short run that injustice can appear to be expedient. In the long run, which is the omen of my whole life, the just tends to be the expedient”. (Page 173, my italics) Note that my individual conduct breaches the peace; it does not destroy it. And it is an undestroyed peace (rather than an unbreached one) that it is said I need. 2) Under ideal conditions “when an individual seeks only those things which are really good for him, he does not infringe on or interfere with the pusuit of happiness on the part of others through their seeking the same real goods for themselves” (Page 174). For Adler says, consider that one man’s pursuit of real self-improvement (which is the greatest good) cannot interfere with another’s similar pursuit. But if there are scarce (in the economist’s sense, which does not entail that the situation is non-ideal, in Adler's sense (cf.

Page 177-178) resources of self-improvement (books, musicial instruments) then such interference is possible; similarly, with teachers, with the added possibility of forcing one of the few able people in a subject (who would

228

Robert Nozick

rather be improving himself) to instruct you. It is even easier to see how this might happen with the goods other than self-improvement that Adler discusses. 3) Under non-ideal conditions, men may not obtain the privileges which enable them to lead good lives by force or fraud. (footnote 3, Pages 309-310). No reason connecting this constraint to an individual’s obligation to pursue a good life for himself, is offered by Adler. (Nor is any other reason offered.) It would be interesting to hear what reasons he would produce, in view of his statement (pages 171-172): If it could be shown, as I think it cannot be shown, that the individual’s obligations to others and to the community are independent of his obligation to make a good life for himself, then the discharge of such obligations would impose a burden on him that

might interfere with or even frustrate the pursuit of his own happiness. I would like to add, in passing, that those who regard their duties to others or to the community as independent of their obligation to make a good life for themselves are either sentimentalists or thoughtless do-gooders!!

8. Or, to go to a case which is merely meant to caution one about how one formulates the harmony condition, each of two boxers, who have promised to win the fight, and who each have contracted with different outside parties to win, should win, and furthermore, it is permissible for one to thwart the others’s attempt to do what he should do. 9. I say “stronger”, realizing that she would deny that it is a stronger claim, because she thinks that there is no additional step needed to get from something being in one’s interests to its being something one should and ought to do. 10. We should notice here a slide many writers in and readers of this tradition make, from X is a (morally) better act than Y, to one is (morally) better doing X than Y, to one is better off doing X than Y. An argument that right conduct and self-interest don’t diverge requires independent ways of identifying each, plus an argument that these two independently identified things always go together; at any rate, so it must go if the ordinary view that self-interest and rightness are distinct notions is to be adhered to. Alternatively, it might be argued that they don’t diverge because there are not two independent notions, but rather one of them is primary and the other one can be explained in a coherent fashion only in terms of the first (in such a manner as to yield their non-divergence). So, one might explain “morally right” or “morally ought” in terms of “self-interest,” or against such a background (Rand). Or, one might attempt to argue that the notion of self-interest itself cannot be coherently explained except in terms of morally

right (with a particular form, and perhaps content) in such a fashion that they don’t diverge. This latter possibility is an exciting and tantalizing one, which should be pursued.

On the Randian Argument

229

Il. See her essay, “The Conflicts of Men’s Interests”, in The Virtue of Selfishness. 12. It is sometimes assumed that the unconstrained (constrained) egoist can give no weight to the interests of others except as they are reflected in his own interests (and the constraints). But a theoretically possible egoist position could require: Maximize self-interest, (subject to constraints) and among

those actions which tie so far as (constrained) self-interest is con-

cerned, pick that one which best satisfies condition C (where C may be any condition, e.g., the utilitarian one.). Here we would have a lexicographic ordering, with the (constrained) egoistic score occupying the first place in the vector, so that nothing can override considerations of self-interest, and

other things are given some weight later on in the vector. I use “constraint” here as it is used in linear programming, to mean bound on another maximizing or goal-directed process. 13. And not a path that Miss Rand would follow, I think. (See “The Objectivist Ethics”, pp. 28-30). But one cannot merely say, to use Miss Rand’s terminology, that happiness is the purpose of ethics, but not the standard. For the problem here is that it is known that the action will not achieve this purposes when it is guided by Galt’s valuing Dagny Taggart’s life above his own. And in the science fiction case below, the purpose of happiness is achieved by his not following the standard, without his making whims or irrational desires his guide to conduct. What the egoist condition on desires is which allows non-self-centered valuing of another's life above one’s own or, the valuing of the triumph of justice and right above one’s own life, but rules out other, altruistic, desires as incompatible with rational egoism, is a puzzle.

I discuss the position in the text because when the components of Miss Rand's view, assumed to be indissolubly intertwined, part company, it is one path that can be taken to reconstruct the position (and has been taken in conversation with me by persons who term themselves followers of Miss Rand, for whose intellectual meanderings she is, of course, not responsible). As I have said, it is not a path that the preponderant thrust of her view (the components of her view which, I assume, have major weight for her) would

lead her to take,

I think.

But

in that case,

it is unclear

what

alternative teleological argument she would offer for a life lived in accordance with the virtues of rationality, honesty, integrity, pride, productiveness, justice and independence. 14. If “Happy” is what it is. More likely terribly sad, hoping that they'll reach safety. 15. Privacy invasions raise an interesting problem for libertarian theory, for it seems that we can imagine such invasions without any of the particular sorts of physical invasions which libertarians tend to focus upon. For

230

Robert Nozick

example, suppose that there is one telepath who picks up emanations from you which can’t be screened in. He knows exactly what you are doing, and thinking, at any given moment. Perhaps he broadcasts you on a particular T.V. wavelength. Anyone can tune in, any time, to see what you are doing and thinking at that moment. On Saturday night, after you are asleep, there are the highlights of your week. No thought or action of yours is private, yet the telepath has not invaded you or your property in any way (as libertarians speak of invasion). Are there any grounds to legally forbid the telepath from so operating, which the libertarian can formulate? Would we wish to forbid it in this case? It might be said that such cases are impossible, and it is not a difficulty with a view that it does not handle some impossible case as we would wish. But it is, I think, an objection to a view if it does not handle this kind of case

correctly (as it would be to show that a consequence of a moral view was that if there were anyone who could travel faster than the speed of light, then it would be morally permissible for him to murder whomever he wished), even though the task of marking off which kind of impossibilities cause trouble for a moral theory still requires doing. 16. By inadequacy, I mean that the view does not handle some particular cases as the reader, in his considered judgment, would wish to see them handled. Ofcourse, ifthe reader insists on seeing each example through the principles he accepts [“Well, since it doesn’t violate principle P, it’s o.k.”] then it will be impossible to produce what he will accept as a counterexample to the principles. Issues about how non-dogmatically to hold principles so that they're open to counterexamples (as well as to counterarguments: but even here, one sufficiently attached to a consistent principle P could deny any statement Q from which not-P follows), but still to hold and accept them rather than merely contemplating them, are of great interest and merit extended discussion. Followers of Miss Rand should not scorn holding principles in this fashion, if 1am right in thinking that (a) They do not possess a knock down deductive demonstration of their principles (b) a large part of the attraction of the Randian view for people is the way it handles particular cases, the kind of considerations it brings to bear, its “sense of life”. For many, the first time they encounter a libertarian view saying that a rational life (with individual rights) is possible and justified is in the writings of Miss Rand, and their finding such a view attractive, right, etc., can easily lead them to think that the particular arguments Miss Rand offers for the view are conclusive or adequate. Here it is not the argument which has led them to accept the view, but rather the way the view codifies, integrates, unifies, extends many of the judgments they want to make, feel

On the Randian Argument

231

are right, and supports their aspirations. If this is so, then one should hold the view so that it is open to challenge from just that sort of data that has provided its main support.

Here we do well to mention a problem which has received little discussion in the literature on ethics. Some writers on ethics have viewed their task as offering moral principles which would unify and account for the particular moral judgments we make, often adding that the reciprocal process of formulating such principles, and modifying particular judgments itself is the process of moral justification. We may ask the philosopher of science’s question: Does the data uniquely determine one theory which accounts for it, or are there alternative theories which equally well account for all the data we have or could have? Asking this question forces us to clarify the notion of all possible moral data: is it, for each act in each situation, a pairing of the act in the situation with a judgment of moral permissibility? Here it seems plausible to think that alternative different theories will equally well account for all this data (as plausible as to think that alternative physical theories can account for all possible observational data). Perhaps adding into the data, other types of particular judgments (e.g., of persons’ characters) will help, but one suspects, not much. More promising is the claim that in the data, we have not only particular judgments ofparticular actions, but also, often, some (partial) reason offered for the judgment. And so the theory must not only yield the particular judgment but also, when we have them, certain sorts of reasons for the judgment. [I say “certain sorts” to mark a problem: if we offered as our reason for a judgment, “because it follows from T” where T is a complete fundamental moral theory, then any theory which accounted for our judgments would have to be, contain, or yield T. So it is a more delimited sort of reason which is needed. ] Placing this into the data, is it still the case that there are alternative theories which equally well account for the data,

where no one theory accounts for and reduces all the others. If so, the various well-known positions in the philosophy of science as to the content of theories become available as options, and one may pick an option in ethics different from the one one holds with regard to a particular theory of physics. The whole area is open, and would repay detailed investigation. 17. Independently, Thomas Nagel argues against the principle of experiential ethics in his paper “Death”, Nous, 1970.

12 Nozick on the Randian Argument DOUGLAS

DEN

UYL and DOUGLAS

RASMUSSEN*

Ever since the publication of Anarchy, State and Utopia Robert Nozick has become, in the philosophic community at large, the leading exponent of libertarian political philosophy. Nozick’s work has become the subject of much interest among_ political philosophers. Yet before Nozick’s rise to prominence contemporary libertarian political philosophy had been in existence for well over a decade. Before Nozick’s rise most academic libertarian political philosophers looked to another figure as the philosophic head of libertarian thought. This figure was the non-academic novelist/ philosopher Ayn Rand.! One would expect therefore that Nozick would have some thoughts on the figure that was so dominant in libertarian thought for so many years. Such is indeed the case, for in the Spring 1971 issue of the Personalist (Vol. LII, No. 2) Nozick devotes an entire article to an examination of Rand entitled “On The Randian Argument.” Nozick’s article seems to us to be of interest for a number of reasons. First of all, Nozick and Rand share the same basic political conclusions. Sharing similar conclusions is not in itself interesting, but it can become so when one of the two parties claims the other is fundamentally mistaken in the way his or her conclusions were drawn. Such is Nozick’s claim about Rand. Secondly, when one 232

Nozick on the Randian Argument

233

person attacks the position of another a good deal can be gathered about the attacker's philosophic style and methodology. Such information is always useful when that person is in a position of intellectual prominence. Finally, whether the criticisms of one of the parties succeeds is always of interest if for no other reason than the bearing success or failure will have in determining the intellectual scope of coming to similar conclusions. In this paper we shall show that Nozick’s criticisms of Rand fail completely, and that they fail largely because Nozick has not understood or appreciated either the content or philosophic methodology of Rand’s thinking and thought. Nozick’s own paper is divided into five sections. We shall proceed by examining each of these sections in turn. Nozick’s method in his paper was to present the “Randian argument” and then to criticize the argument. We shall operate by presenting Nozick’s construction of the Randian argument, criticizing Nozick’s construction, and, where necessary,

we shall outline Rand’s own position on a given matter (where Nozick has failed to accurately represent that position). Our paper is meant only to apply to Nozick’s discussion of Rand. Whether what is said here in any way affects or is relevant to Nozick’s own philosophizing elsewhere is not our concern. Before turning to the particular sections of Nozick’s paper we must note that Nozick begins by saying that he will be basically concerned with four central Randian conclusions. We quote these conclusions below to help orient the reader to Nozick’s overall project.

I. “only living beings have values with a point.” Il. “life itself is a value to a living being which has it.” Ill. “life, as a rational person, is a value to the person whose life it is.” IV. “some principles about interpersonal behavior and rights and purposes.”

These four basic areas of concern given above shall be referred to in the paper as Conclusion I, II, etc. I

In order to examine

Conclusion

believes Rand’s basic argument following is that argument:

I, Nozick constructs

for that conclusion

what he

to be. The

234

Douglas Den Uyl and Douglas Rasmussen

(1) “Only a living being is capable of choosing among alternative actions, or,

(2) “Only for a living being could there be any point to choosing among alternative actions, for (3) “Only a living being can be injured, damaged, have its welfare

diminished, etc., and

(4) “Any rational preference pattern will be connected with the things mentioned in (3), and since (5) “Values establish a (rational) preference ordering among alternative action, it follows that

(6) “Only a living being can have values, with some point to them. Values have a purpose only for living beings.”

We shall examine these premises closely in order to see if Nozick has constructed an argument truly representative of Rand's position. We shall also consider, as we go along, the criticism Nozick offers regarding this argument when it concerns a position that Rand does indeed hold. Before this can be done, however, we must note that the conclusion Nozick sets up for consideration seems not to be one that Rand holds! Nozick’s conclusion that “only living things have values with a point” seems to mean that values have a purpose or serve a function only for living beings, but Rand’s contention is that only living beings can have values, not that only living beings have values with a purpose. Rand holds that “value is that which one acts to gain and/or keep.? In other words, value, when most generally considered, is an object of an action, an end, a goal or purpose. Thus, when Rand states that “only a living entity can have goals or can originate them,’* she is contending that values period exist only for living things. She is contending that if there were no living things, there would be no ends, no goals, no purposes, and no values in the world. The very existence of goal-directed behavior is metaphysically dependent on the existence of living things for Rand, and Conclusion I does not seem to mean this. Conclusion I merely notes that values have a purpose only for living things and says nothing as to whether there could be values (values without a purpose), if there were no living beings. The qualifying prepositional phrase “with a point” which Nozick applies to “value” is very important, because it seems to leave open the question of there being values without

Nozick on the Randian Argument

235

living beings. Rand’s position notes the metaphysical conditions required for the existence of values and rules out the existence of values save in relation to living things. Thus, there seems to be quite a difference between Conclusion I and Rand’s central thesis. Conclusion I does not seem to indicate the metaphysical nature of Rand's approach to value, and because of this, Nozick seems to miss an absolutely crucial element of Rand’s theory of value. Missing this crucial element obscures what is philosophically significant about Rand's approach to ethics. It is quite puzzling that Nozick fails to get this most basic contention right. Possibly he is not using “value” in the same way as Rand; or maybe he wants to use the concept differently.> If such is the case Nozick should have said so. On the other hand, maybe Nozick means by Conclusion I, nothing more or less than, “there would be no reason, no basis, no purpose for values if there were no

living beings.” In other words, maybe Conclusion I means exactly what we said it should mean. Though this is not what Conclusion I seems to say, we will take it as Nozick’s meaning so that we can consider the premises he constructs for it. (1) Premise (1) is not quite what Rand contends. According to Rand, only human beings choose among alternative actions. Purposive behavior does not apply to insentient living things. Such living things can act for one alternative as opposed to another, but only in the sense that an organism’s actions result in the achievement of some end or in failing to achieve some end. So, premise (1) should be either “only a human being is capable of choosing among alternative actions’ or “only a living being is capable of acting for one alternative as opposed to another.” Premise (1) blurs an important distinction between facing alternatives and choosing between them. Living beings qua living beings face the alternative of life or death, i.e., a living thing’s actions either result in ends that

are conducive to its life or not. Human beings qua living beings face this alternative too, but as a human being they can choose what end to achieve. This distinction is the basis for the further distinction between “value” and “moral value” in Rand’s thought. Living things as organisms which, as a result of automatic (or determined) functions achieve ends (values) do not have the category of moral value applied to their actions, while human beings which choose what values to achieve with their actions do. This distinction allows there

236

Douglas Den Uyl and Douglas Rasmussen

to be values which are unchosen and does not let the will of man be creative of all values. Metaphysically speaking, “will” is not the fundamental factor behind the existence of values; rather it is life. Yet, this distinction does let only those values which are chosen be

the ones subject to moral appraisal. By blurring the distinction between facing alternatives and choosing between them, Nozick gives the impression that for Rand values exist only as an object of choice or will, i.e., only as a result of an individual’s aspirations, and not as a result of possessing a characteristic he shares with other entities—life. The blurring of this distinction is in part responsible for Nozick’s belief that for Rand values could not exist for a person if they were not an object of personal concern. For example, our not knowing the consequences of an action we took and our inability to be affected by it supposedly renders such an action incapable of being a valuing one. Here the supposition is that values exist only because they are an object of choice and because they affect us personally. According to Rand, however, we have values because we are alive; this is why there are choices and why we are affected

(or not) by them. Nozick interprets Rand’s theory of value in this metaphysically egocentric manner in part because the distinction between facing alternatives and choosing between them is blurred in premise (1). We shall have more to say on this point later when we consider premise (3). (2) The key to understanding premise (2) is how we interpret that troublesome term “point.” Yet no matter how we interpret this term, this premise is subject to the same objection as (1). As we said, Rand believes that only human beings choose among alternatives.

Let us put this difficulty aside, however, and consider what Nozick means by “point.” He seems to be using the term to mean “reason or basis.” In other words, (2) contends that only for a living being could there be a reason or basis to choosing among alternative actions. If so, this is something that Rand holds, for she argues that the very phenomenon of choice is dependent on entities faced with an alternative—namely living things. Only for living beings could there be choice. It should be noted that this use of “point” seems to be different than the use the term has in Conclusion I. As we have already discussed Conclusion I, it is not necessary for us to repeat that discussion here. Nevertheless, if there is a variation of the use of the term “point” Nozick could be charged with building an

Nozick on the Randian Argument

oor

equivocation into the argument. Yet, setting this problem aside, premise (2) does seem to say what Rand contends, i.e., that only living beings are capable of choice, or more exactly, only human beings can choose. Nozick finds this contention problematic. He wonders if there could not be machines created which could perform cognitive or choice functions. He wonders also if there could be machines so designed as to be capable of valuation. Supposedly, these speculations indicate the shakey ground upon which the contentions “only human beings choose” and “only living beings have values” rest. Actually, this is not the case at all. If it is argued that computers, robots or whatever can “choose” and man is not the only entity that can choose, it can be replied that man creates or makes such machines, and whatever capacity for choice a machine might have is a result of man’s capacity for choice. Such machine choice is nothing more than an extension of human choice. Metaphysically speaking, choice exists only;for human beings. Man’s ability to expand the domain of his choice is not a challenge to this contention; rather it is an affirmation ofit. Also, ifa machine could be created with “values” and “concerns,” this would be an extension of the human ability to choose and value. If there were no human valuation, there would be

no machine valuation. Values exist only for living beings; more specifically, they exist only in relation to them. Man’s ability to lengthen the relationship between himself and his values, i.e., by programming or “giving” machines ends and rules for action, only underscores the very fact that values exist only in relation to a living being. (3) Premise (3) is a position that Rand holds, but it is not her basic reason for (2) or (1) as Nozick indicates. The capacity to be harmed, damaged, or have one’s welfare diminished does not constitute the primary reason for claiming that either only human beings choose or only living things act for one alternative as opposed to another. According to Rand, the basic reason for either of these is the phenomenon of life. It is the existence of life that makes alternatives possible which includes the acting for or choosing of alternatives. The capacity to be harmed, damaged or have one’s welfare diminished is merely a result of the phenomenon of life. Premise (3) could just as well say that only a living being can be healthy and have its welfare increased. There is nothing metaphysically primary

238

Douglas Den Uyl and Douglas Rasmussen

about this premise. Life is a way of being that requires constant action for its continued existence. An entity which possesses the characteristic of life must take actions whose results are either conducive to its life or not. Being harmed, damaged, having one’s welfare diminished or being healthy, whole, having one’s welfare increased are manifestations of and dependent upon this basic fact. They indicate that a living thing’s actions are conducive or not conducive to its life. Yet such indications are important only because the entity is a living thing. They are not the basic reason for (1) and (2). Nozick’s failure to note the primary reason for (1) or (2) allows him to interpret Rand as saying that a value can exist only insofar as it has a concrete, particular effect upon the valuer. If there is no particular result from one’s valuing X, then X is not a value.

But Rand’s

position is more subtle than this. Rand holds that something is a value because

it is an object of an action,

because

it is an end.

She does not hold that an end is valuable only when it affects the one who acts for it. Such a view would allow values to exist only through their relation to the particular effect they produce on a particular actor. This is what we have called the metaphysically egocentric interpretation of Rand's theory of value. Yet, such an interpretation fails to note that Rand is asking the basic metaphysical question of “What are the conditions for the possibility of value?” which requires a most basic answer. Something is a value not because it produces particular effects on the one who acts for it. In fact, it might be the case that none of the particular ends a particular actor seeks ever actually affects him. Yet these ends would still be values according to Rand, because such a consideration as what particular effect an end has on the one who acts for it is not the reason why one pursues ends, why an end is valuable. Values come into existence because life is a way of being that requires that a certain type of entity (a living one) be an actor for ends, a valuer of ends. Living things are the only type of beings that can be affected by their actions, and if such actions could not ultimately make a difference to the life of a living being, there would be no values. Yet, none of these necessitates that something is valuable only when some particular effect results to the actor from the end being sought. Rand is only arguing that if there were not this kind of being in the world—living being—there would be no ends valued, no values.

Nozick on the Randian Argument

239

What ends or values are conducive to the existence of a living being (a valuer) is determined by the nature of the thing, and for a choosing entity these considerations become moral considerations. For these reasons Rand does not argue that the way an object of an action affects one be fully determinate in advance before it can be a value. Rather she argues that when a person is determining whether or not a projected object of an action is to be of value, the reasons behind such an action should be in accord with those principles which determine the successful maintenance of one’s (i.e., qua human being) life or not. This must be the case since it is not always possible to determine what the affects of an action will be. Moreover, some actions (e.g., exercise for the sake of health, to

use Aristotle’s example) may seem to adversely affect one when in fact they lead to our long run advantage. This could only be determined by looking to principles as guides to action. Sending copies of Atlas Shrugged to beings in a distant place (to use Nozick’s example) can be perfectly proper for Rand (assuming we have nothing better to do) either as an act of good will (the desire to see the other rational beings succeed in their lives) or as a prospective means to better enhance the environment or community in which one lives. Neither alternative (or explanation) conflicts with the requirements of living a successful life. Indeed both are a staple of

the Randian ethics.® (4) Premise (4) seems

to imply that the standard for rational

conduct is the avoidance of harm, damage or diminished welfare.

Though it is not altogether clear what Nozick means by “rational,” we assume that in this context it means that which is correct or morally good. If so, then this is not the standard according to Rand. Rand’s standard of goodness is man’s life: “that which is proper to the life of a rational being is the good.”7 This standard is not equivalent with momentary or merely physical survival, and it does not mean “survival at any price.”® Rather, man’s survival as a rational animal means the “terms, methods, conditions and goals

required for the survival of a rational being through the whole of his lifespan—in all those aspects of existence which are open to his choice.”? Yet, this premise (premise (4)) does not suggest such a standard: on the contrary, it could be taken to imply the “survival at any price” viewpoint. As such, premise (4) cannot be taken as

240

Douglas Den Uyl and Douglas Rasmussen

representing Rand’s position. Once again Nozick has failed to reconstruct the argument in a way that expresses Rand's real doctrine. (5) Premise (5) is not Rand’s either. Values, goals, and ends do not in themselves establish a rational (correct, right) ordering of alternative actions. Strictly speaking, a value is an object of an action; whether such an action aims at a rational end (that which is proper to the life of a rational being) cannot be determined from the fact that something is an end of an action (a value). Nozick seems to be confusing value with moral good, but values qua value for Rand do not necessarily give, or even indicate, a rational ordering among alternative actions. Rand states: “What is open to his (man’s) choice is only . . . whether he will choose the right goals and values or not.’1° Thus, premise (5) cannot be taken as expressing Rand’s viewpoint either. (6) Statement (6) is a virtual restatement of Conclusion I. We shall consider our criticisms of Conclusion I to be equally applicable to statement (6). In this section we have seen that Nozick has not properly understood the Randian position. In other words, his construction of the “Randian” argument was not in fact Randian. Thus many of the criticisms Nozick makes against the “Randian” argument necessarily miss their mark. We have tried also in this section to offer as much as possible just what Rand’s basic argument actually looks like. Hopefully we have been able to indicate adequately just where Nozick’s misunderstandings lie. II

We have argued that Nozick’s reconstruction of Rand’s argument in Section I is incorrect and that Nozick has failed to appreciate Rand’s central thesis—namely, that only living beings have values. In Section II Nozick continues his reconstruction attempts. Nozick tries to find an argument that will justify the conclusion that life itself is a value to a being which has it. He does this in a three step argument:

(1) “Having values is itselfa value. (2) “A necessary condition for a value is a value.

Nozick on the Randian Argument

241

(3) “Life is a necessary condition for having values. “Therefore, life itself is a value”

Nozick finds this argument unsatisfactory and moves on to what he calls the “transcendental argument.” The “transcendental argument” claims that the request for a demonstration of the valuable nature of life is ultimately an inconsistent one, for it is only the phenomenon of life that gives rise to values. Nozick finds this argument unconvincing and finds no reason why “death” or the “greatest happiness of the greatest number’ could not be the ultimate value. Thus Nozick sees no convincing argument for the conclusion that life is a value to a being which has it. Some initial comments must be made about this section of Nozick’s article. First, the conclusion to be established—namely that life is a value to a being which has it—is not quite correct. It is not that life is just a value for Rand; rather it is an ultimate value.

Second, premises (1) and (2) of the argument Nozick constructs are not positions that Rand would hold. We know of nowhere in Rand’s work where she holds that having values is itself a value or that a necessary condition for a value is a value. Rand does contend that a necessary condition for there being values is life, but this is premise (3) of the argument and so cannot be taken to be reflected in premise (2). Possibly, Nozick can show how premises (1) and (2) are premises that Rand uses, but we do not see how, and thus we also see no reason to consider them at this time. Third, premise (3) of the

argument Nozick constructs is definitely one that Rand holds. In fact it is her central

ethical

thesis.

Nozick,

however,

does

not

say

anything about this premise. His comments are confined to showing the inadequacy of premises (1) and (2). This is regrettable, because a careful consideration of premise (3) and all its implication is central to any appreciation of the so-called “transcendental argument.” We shall examine this “transcendental argument” and show how it does establish the position that life is the ultimate value. In so doing, we shall indicate why “death,” “the greatest happiness for the greatest number” or any other such thing could not be the ultimate value. Rand’s approach to ethics begins with the question: what are values and why are there such things? “Value” for Rand is a morally neutral term in its most basic sense. A value is the object of an

242

Douglas Den Uyl and Douglas Rasmussen

action. A value can be the object of a purposive action or it can be an object of a non-purposive action. Insentient living things attain values in the sense that the automatic functions of the organism result in the attainment of an end. So, a value is a goal or end of an

action— ‘that which one acts to gain and/or keep.” Given that there is such goal-directed behavior, why is there such behavior? What are the conditions that make such behavior possible? We have already indicated the answers to these questions in section one, but let us continue by providing a more complete explanation. (1)Goal-directed behavior by its very nature implies that there is an alternative present. If there were no question of achieving the goal then there would be no reason to act to gain it. Goal-directed behavior demands the existence of an alternative. (2) Goal-directed behavior requires by its very nature the existence of an entity faced with an alternative, i.e., an entity to which its actions could achieve or fail to achieve a goal. If success for failure with respect to some goal were not conditional on the entity itself, then there would be no reason or basis for that entity to act to achieve the goal—it could have no goals. Goal-directed behavior requires the existence of an entity faced with an alternative. (3)Goal-directed behavior requires by its very nature that the alternative faced by an entity make a difference, have an affect, or have a consequence upon the entity. If the consequence of succeeding at achieving some goal were no different to an entity than the consequence of failing to achieve some goal, then there would be nothing to differentiate achieving some goal from not achieving some goal. Hence no alternative would be faced by the entity. An alternative must make a difference to the entity which faces it or there can be no goal-directed behavior. So, in order for goaldirected behavior to exist there must be: 1.) an alternative, 2.) an

entity whose

actions

are capable

of succeeding

or failing with

respect to some goal, and 3.) an alternative that makes a difference

to the entity which faces it. All three of these conditions are present entities—living things. As Rand argues,

in a single class of

There is only one fundamental alternative in the universe: existence or non-existence—and it pertains to a single class of entities: to living organisms. The existence of inanimate matter is unconditional, the existence

Nozick on the Randian Argument

243

oflife is not: it depends on a specific course of action. Matter is indestructable, it changes its forms, but it cannot cease to exist. It is only a living organism that faces a constant alternative: the issue of life or death. Life is a process of self-sustaining and self-generated action. If an organism fails in that action, it dies; its chemical elements remain, but its life goes out of existence.!! (emphasis added)

Non-living things face no alternative of existence or non-existence. A non-living thing, e.g., a sofa or boulder, may be open to the possibility of non-existence. The sofa could be reconstructed into something else—say a bed; a boulder could be smashed into a million pieces so that it became gravel or sand, but neither of these is an alternative that the sofa or boulder faces. They may be respective possibilities open to the sofa or boulder but they are not alternatives faced by them. The sofa or boulder does not achieve its existence or fail to achieve it as a result of its actions. Its existence is not an object, a result, or an end of its actions. The basic “stuff” of

the world may change or evolve toward increasing complexity or simplicity, but it cannot cease to be—its existence is conditional on nothing. Thus non-living being faces no alternative and hence cannot perform goal-directed actions. Only living beings can do so. Living beings necessitate or make possible the existence of goaldirected behavior, and they are the only type of beings which do so. Living beings may face many alternatives and may have many goals, and they may achieve a goal or fail to, but they have no basis or reason for acting to achieve a goal if there is ultimately no difference between achieving or failing to achieve a goal. We can see this if we will but consider the following question: What determines ifa goal is achieved or not achieved? The only answer possible is the difference,

the effect, it makes on the part of the entity who acted to

achieve the goal. There is a result that comes from achieving a goal and a result that comes from failing to achieve a goal (even if there is a lack ofa positive result). The difference in the result to the being who acted to achieve the goal determines, tells us, if the goal is achieved. What differentiates the results of goal-directed behavior? The most fundamental difference possible is the difference between existence and non-existence.

If such a difference did not exist, if

some being were not conditional, if an action could not result in the existence or non-existence of the entity that acted to achieve a goal,

244

Douglas Den Uyl and Douglas Rasmussen

then there would be no differences in the results of achieving a goal or failing to. If there were no difference in result with respect to an entity existing or not existing, then what other differences could there be? What could make results differ if there were not this basic difference? None. Thus, it is the difference between a living being existing or not existing that creates all the other alternatives a living being faces, and it is because life is something that must be maintained that there are goals in the first place. Rand holds that an ultimate value is, “the final goal or end to which all lesser goals are the means—and it sets the standard by which all lesser goals are evaluated.”!? Is there anything that constitutes a final goal or end? From all that has been said, we see that life is the ultimate or final goal of all goal-directed behavior. Otherwise,

there would not be such behavior, and this is Rand’s

very point when she states: Without an ultimate goal or end, there can be no lesser goals or means: a series of means going off into an infinite progression toward a non-existent

end is a metaphysical

and epistemological

impossibility.

It is only an

ultimate end, an end in itself, that makes the existence of values possible.

Metaphysically, life is the only phenomenon that is an end in itself: a value gained and kept by a constant process of action. Epistemologically, the concept of “value” is genetically dependent upon and derived from the antecedent concept of “life.”13

What determines whether the life of an entity is achieved? To be a living thing and not be a particular sort of living thing is impossible and, thus, we cannot speak of life as an ultimate end without also adding the words “as the sort of thing it is.” It is the nature of the living entity, the kind of thing it is, that determines whether the life of the entity is achieved. Rand has spoken of the ulimate end as the standard by which all other ends are evaluated. When the ends to be evaluated are chosen ones the ultimate end is the standard for moral evaluation. Life as the sort of thing a living entity is, then, is the ultimate standard of value; and since only human beings are capable of choosing their ends, it is the life as a human being—man’s life qua man—that is the standard for moral evaluation. Why should this be the standard for moral evaluation? Why must

Nozick on the Randian Argument

245

this be the ultimate moral value? Why not “death” or “the greatest happiness for the greatest number’? Man’s life must be the standard for judging moral value because this is the end toward which all goal-directed action (in this case purposive action) is directed, and we have already shown why goal-directed behavior depends on life. Indeed, one cannot make a choice without implicitly choosing life as the end. Let’s consider the following argument: 1) X is an object of choice 2) Y is a necessary condition for the existence of X as a value.14 Y makes X as a value possible. 3) If P chooses (values) X, P must choose (value) the necessary condition for P’s valuation of X. 4 P chooses (values) X. Thus 5 P chooses (values) Y. 6 Y is man’s life. Thus 7|gealglee (values) man’s life in choosing (valuing) X. aRNa P chooses In so far as one chooses, regardless of the choice, one must choose (value) man’s life. It makes no sense to value some X without also valuing that which makes the valuing of X possible (notice that this is different from saying “that which makes X possible”). If one lets X be equivalent to “death” or “the greatest happiness for the greatest number,” one is able to have such a valuation only because of the

precondition of being a living being. Given that life is a necessary condition for valuation, there is no other way we can value something without also (implicitly at least) valuing that which makes valuation possible. Paradoxically perhaps, we could value not living any longer, but in making such a value we must nevertheless value life. Death, a living thing not-being, does not require any actions for its maintenance. Death is not a positive way of being. Rather, it is a negation—the absence of being a living thing. It has no required actions; it has no needs. Death cannot be an ultimate value, then,

simply because it does not require any actions and thus cannot be the reason or cause of goal-directed behavior.1° Therefore, we cannot “suppose” death or anything else (other than life) as the ultimate value, for the very activity of “holding something as a value,” let alone as an ultimate one, depends on life being the ultimate value in the sense of “ultimate” discussed earlier. Thus

246

Douglas Den Uyl and Douglas Rasmussen

there is an inconsistency in the request, “Prove life is valuable.” The very meaning of “valuable” presupposes the value of life. Man’s life is the ultimate moral value not because it is a precondition for other moral values as Nozick suggests. Rather, man’s life is a precondition for moral values because it is the ultimate moral value. Man’s life is the ultimate moral value because man’s life is the only thing that fulfills those conditions we noted earlier for the existence of goal directed behavior. Neither “death” nor “the greatest happiness... qualifies in this regard. Incidently, more will be said on valuing death in section five of this paper. Finally, it should be noted that premise (3) of our characterization

of the “transcendental argument” given above might be considered as equivalent to premise (2) of Nozick’s three-step argument, but only under certain important conditions. (2) states that a necessary condition for a value is a value. (3) states that a necessary condition for someone’s ability to value is a value. These premises can be best examined if we will but consider Nozick’s example of cancer being the necessary condition for the existence of the value “being cured of cancer.” Strictly speaking, cancer is a necessary condition for the existence of the state or condition of “being cured of cancer,” but it is not a necessary condition for the existence of the value “being cured of cancer.” According to Rand, values do not exist without valuers, and “being cured of cancer” is a value only in relation to

a living being which values that state or condition. As Nozick understands premise (2) of this three-step argument, cancer would have to be a value if one valued being cured of cancer. Here, Nozick views values in a manner

Rand would

call intrinsic.1® Rand,

however,

could view premise (2) as not requiring that cancer be a value, because something is a value only in relation to someone’s ability to value, and cancer is not a necessary condition for that. Premise (3) of our argument has the advantage of not confusing necessary conditions for the existence of something with the necessary condition for the existence of something qua value. Premise (3) of our argument emphasizes that something is a value only in relation to a living thing and as such is much closer to Rand’s position than is Nozick’s premise. We have seen once again that Nozick’s criticisms of Rand do not have the force they might otherwise have had because Nozick has failed to come to grips with the full Randian position. This is

Nozick on the Randian Argument

247

unfortunate because these first two sections lay the groundwork for much of what comes in later sections. Had Nozick been more careful in these two sections perhaps some of the errors he makes in later sections could have been avoided. II

In Section III of his paper Nozick considers the possibilities that would allow Rand to conclude that life as a rational being is a value to the person whose life it is. We shall not examine all the possibilities Nozick considers. In fact, we shall ignore most of them,17 for we believe that Nozick mentions the approach that Rand uses, though he does not examine that approach. We are referring to the last paragraph of Section III where Nozick states: It might be said that a rational person follows principles, general policies, and so we must consider those principles of action which make man’s survival possible.

This we think is Rand’s basic approach to establishing the conclusion that life as a rational animal is the moral good for man. Nozick fails to examine this approach because he has not understood the metaphysical level of Rand’s arguments. Values exist for a human being not in virtue of the particular effect they produce for his life but as a result of his nature as a particular kind of living being. Because a living being is a creature for which the results of its actions make a difference, a living being acts to attain certain ends. What ends these are are determined by the nature of the entity. A human being has the ability to choose what ends he will seek, but the ends that are conducive to his life are set by his nature. As stated in Section II, the ultimate end is not just life. It is impossible for a living being to be and not be a living being of some kind—there is no such thing as unspecified life, i.e., life existing in some abstract way. Thus, the nature of a living thing—the kind of thing it is—determines whether the life of the entity is achieved. Life as the sort of thing it is, then, is the ultimate end. This ultimate end consists of two distinct aspects—the life of the entity and that entity's nature. Though distinct, these are never separate in a living thing. Life, as such, explains the necessity for

248

Douglas Den Uyl and Douglas Rasmussen

goal directed action. (This is what Nozick considers the “consequentialist” side of the argument.) A thing’s nature, as such, provides the

basis for evaluating the living thing's development or actions. It provides the principles or rules that are used as standards for action. (This is what Nozick considers the “formalist” side of the argument. ) These two aspects, however, cannot be considered separately when speaking of an ultimate end. Living beings do not exist without being of a certain kind, and natures do not exist save “in” the entities which possess them—that which is separate in thought need not be separate in reality. (Moreover, since “nature” is not a special metaphysical constituent for Rand as it appears to be for Aristotle, there is no bifurcation of an entity. Rand would argue that her entities are through and through “one” or “whole.” Thus any attempt to separate “life” from a thing’s “nature” or a thing's “nature” from “life” would not be possible in a Randian system.) Because of this basic unity between the aspects, a given “nature” and “life,” it is not possible to separate consequential considerations from formal considerations when arguing for man’s life qua man as the standard of value. It is because life requires certain things for its maintenance that a human being, with no automatic form of knowledge, must use the only tool available to him—his conceptual ability. The principle of rationality is dictated by the nature of the human being and the life of ahuman being necessitates the adoption of such a principle. Both the consequences and formal considerations are part of one principle for Rand, and cannot be considered separately. It is the grossest misunderstanding of “man’s life qua rational animal” to attempt to consider the question, “is life as a rational being necessary for the life of ahuman being?”, in ways that separate “life” from the kind of life it is. In the last paragraph, Nozick notes that it has not been shown (by Rand) “why each person must follow the same principles, and why I may not, as a rational being, have a clause in mine [my principle] which recommends parasitism under certain conditions.” But the answer to this has already been implied. Each person has the same human nature and because of this the principles of action that guide that person's actions must be the same principles that apply to others as well. There cannot be a special clause allowing parasitism because then we would not be talking about principles. Why must we be talking in terms of principles? The kind of thing we are sets the goals

Nozick on the Randian Argument

249

and dictates the type of actions that will achieve them. This level of generality is inherent in our very being. We can, of course, ignore all these things and act in any manner we feel like. We may or may not live very long, but the fact remains that we would not be living the life of ahuman being; we would be a metaphysical misfit living by sheer luck and/or by the moral behavior of someone else. Rand would say that such an existence would not be a happy one, but this is an issue we cannot examine fully here. Suffice it to say that Rand’s view of happiness is not one of a momentary feeling but something like a feeling of rightness with the world—a sense of efficacy and self-worth (see section four of this paper). The point is that life as a rational being is the kind of life that is proper or suited to the kind of being man is. As we have said those principles derived from man’s nature are meant to guide him in living a successful life as a rational being. Exclusion clauses are not possible unless one wants to exclude himself from the human realm altogether. In the Randian scheme of things one must argue (for a moral principle in terms of whether or not the principle applies to living a successful human life (which is what it means to argue in terms of principles in this area). Thus if one were to argue for parasitism, one would have to do so in general principled terms and not in terms of exclusion clauses. Of course, a human being can act in a manner inconsistent with certain standards and not be literally dead, but such “non-death”

cannot be considered successful human life. The standards Rand sets out are meant to guide men’s lives, which implies that not every mistake or evasion will result in immediate and literal obliteration. Possibly, this is not a sufficiently strong form of obligation for Nozick. He seems to believe that for a moral principle to be really obligatory immediate and devastating consequences must reign down upon you if a moral principle is violated. Maybe Nozick believes that this kind of moral catastrophism is necessary to keep people “in line;” but it is unrealistic to expect it to do so, and it is not necessary to abandon teleological ethics if such consequences are not forthcoming. The consequences of an immoral action are seldom as immediate or ostensible as moralists often want, but this is no reason to say that the principles are any less obligatory. Moreover, this in no way implies that Rand is somehow less meaningful when talking in terms of following principles than is any other moralist.

250

Douglas Den Uyl and Douglas Rasmussen IV

The central project of Section IV of Nozick’s paper is to criticize Rand’s attempt to go from “living one’s life as a rational being is a value” to a social conclusion about people’s rights.1® As he has done in all previous sections of his paper Nozick sets out what he conceives to be Rand’s argument. He provides us with a ten step “Randian” argument. At certain points in this ten step argument Nozick pauses to draw a conclusion and to criticize the argument up to that point. Our procedure here will be to deal with the argument just as Nozick does, i.e., we shall present his characterization of the

Randian argument and we shall pause for discussion where Nozick pauses for discussion.19 The first sub-argument (of the ten step argument) is a three step argument. The argument runs as follows: 1) “For each person the living and prolongation of his own life is a value for him. 1’) “For each person, the living and prolongation of his own life (as a rational being) is the greatest value for him. Thus 2) “No person should sacrifice his life for another.” After providing us with this sub-argument Nozick pauses to make two comments: a.) Rand gives no arguments for 1’, and b.) however, Rand might accept 1’ because she does say certain things about life being an “ultimate” value. In view of the criticisms we shall make shortly, we need not comment here on Nozick’s statement about 1’ (i.e., “a” above). This implies that we need not say anything about “b” either since “b” depends on “a.” However, some comment on “b” does seem to be in order here. First of all, it is rather curious that, given the fact that Nozick is supposed to be constructing a Randian argument, Nozick chose the term “greatest value” for 1’ when he goes on to tell us that Rand uses “ultimate value.” It would seem more appropriate to stick to Rand’s own terminology. Perhaps Nozick attaches some importance to his choice of words in this context. If so, Nozick has not brought out that significance, and there is no way we can see to derive that significance from reading the text. We must therefore assume that the two phrases mean essentially the same thing for Nozick. However, from our point of view there does seem to be a difference, at least by implication,

Nozick on the Randian Argument

251

between the phrases “ultimate” and “greatest” when applied to “value.” When speaking of “greatest” one seems to be speaking of a value that is greatest with reference to some standard. When speaking of “ultimate” (at least in a Randian context) one is not only referring to “life” the value but also “life” the standard of value. In short, “ultimate” is metaphysically more potent in a Randian context than is “greatest.” Nozick’s apparent assumption that the two terms are the same reflects again his failure to fully appreciate the Randian position.

Returning now to the three step argument given above, a number of comments can be made. First of all, premise one is not unqualifiedly true as it stands. Prolongation of life is definitely not a value at any cost for Rand. That this is so is evident from the John Galt suicide example in Atlas Shrugged which Nozick himself references in Section V of his paper (and which we shall discuss at the appropriate time). Since premise one is not unqualifiedly true neither is 1’. Nozick is thus initially on shakey ground in presenting these premises as Randian. Yet Nozick makes more fundamental errors in his three step argument. Let us examine the argument more carefully. Apparently the difference between 1 and 1’ is meant to be only one of degree, i.e., one of going from “a value” to “the greatest value.” However, as we argued above, “living and prolongation” is not unequivocally the greatest value because it is not unequivocally a_ value. Moreover, 1’ cannot logically serve as the connective premise to the conclusion because the connective phrase “living and prolongation of his own life” is used equivocally between 1 and 1’. The crucial phrase “as a rational being’?° (which Nozick relegates to mere parentheses) is present in 1’ but not in 1. As such the phrase “the living . . .” is used equivocally in the argument. Thus not only are the premises of questionable Randian character, but the argument itself is faulty logically. Such an argument can hardly be a fair representation of Rand's position. Furthermore, it is not even clear why Nozick bothers to add the

phrase “as a rational being” in 1’. Given the way Nozick has set up the argument the phrase is not necessary for getting to the conclusion (i.e., 2) that Nozick draws. From the way Nozick takes the argument, the conclusion could just as well have been drawn if the phrase had been left out (though the fact that it is included still

252

Douglas Den Uyl and Douglas Rasmussen

provides evidence for our charge of equivocation above). This brings us to the way Nozick does understand Rand as indicated by this argument. Obviously the phrase “as a rational being” does not seem to make much difference to Nozick. However, the qualification this

phrase provides is crucial to Rand, and the phrase should even have been included in premise 1. Because Nozick ignores this phrase he takes Rand to be saying that everyone’s concern ought to be with their own “prolongation” or mere physical survival. This is clearly not what Rand argues for as indicated by the following passage dealing with man’s survival qua man.

It [man’s survival] does not mean a momentary or a merely physical survival. It does not mean the momentary physical survival of a mindless brute, waiting for another brute to crush his skull. It does not mean the momentary physical survival of a crawling aggregate of muscles who is willing to accept any terms, obey any thug and surrender any values, for the sake of what is known as “survival at any price,” which may or may not last a week or a year.?}

One can see from the above that Nozick has completely failed to accurately represent Rand's position. The non-sacrificial principle in Rand’s philosophy is justified not in terms of keeping oneself alive, but rather in terms of following those standards appropriate to living the life of a rational being. More will be said later about how the Randian argument might look. That Nozick takes Rand’s meaning in the way we have suggested above is implied by step 3 which goes: “no person should sacrifice another person (’s life) to himself (his own).” Nozick argues that there is no reason given in the argument he constructed (i.e., 1, 1’,

2 and 3) that can answer the question of why one should not sacrifice another to himself. Nozick takes this to be a forceful question because he takes Rand’s argument to be on the level of physical survival. Indeed, given the way Nozick seems to take the meaning of the argument he is quite right. If mere prolongation of life were the greatest value for men there would be no argument against saying one should sacrifice others to oneself—in fact the argument Nozick gives could very well imply that one should if the situation arose. Along with the question of “why not,” Nozick should have asked, “is such a way of acting in accord with the type of being man is?” This latter question would have forced him to focus on Rand’s

Nozick on the Randian Argument

253

metaphysic of man’s nature and thereby to the significance of the phrase “as a rational being.” It is Rand’s view of human nature that is behind the conclusions Nozick is examining and to which Nozick should have paid more attention. It is certainly possible that a man can keep himself alive by sacrificing others to himself. Yet the real question (the one Rand is especially concerned with and the one Nozick never seems to recognize) is, is this the kind of activity that accords with the way man’s nature means him to behave22—is this the kind of principle that can serve as a principle for guiding men in general? We have already seen that Rand’s answer to this question must be “no.” Nozick argues that 3 of his argument is not a satisfactory social conclusion so he goes on to consider a more “promising” approach by focusing on rights. He offers the following argument as another attempt to arrive at a Randian conclusion from supposedly Randian premises:

4) “Each person has a right to his own life, i.e., to be free to take the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and enjoyment of his life. 5) “Since each person has this right, to force a person to sacrifice his interests to your own violates this right. 6) “One should not violate another’s rights. Thus 7) “One should not force another to sacrifice his interests for your own or that of another person.”

We might begin our discussion of this second sub-argument by asking why it is that Nozick thinks the above is a more promising approach? Nozick never provides any clue as to what the answer to this question might be. However, Nozick does seem to believe that, whatever the reason, rights-talk is more promising than value-talk and that the two represent two different and distinct areas of inquiry. Whether or not the two areas really are distinct is beside the point. Since Nozick is trying to construct a Randian argument he should realize that for Rand the two areas are definitely not distinct. For Rand it makes no sense to jump into rights-talk from out of nowhere (as Nozick does here) because the notion of rights is for Rand, a moral concept. Thus one’s ethical and thereby value theory

254

Douglas Den Uyl and Douglas Rasmussen

must be intact before one can legitimately move to rights-talk. The movement for Rand is from a general ethical theory to a theory of human rights (with the latter being dependent on the former). Rand is quite clear on this matter as we see from the following passages. Rights are a moral concept—the concept that provides a logical transition from the principle guiding an individual’s actions to the principles guiding his relationship with others . . . the link between the moral code of a man and the legal code of society, between ethics and politics. The principle of man’s individual rights represent[s] the extension of morality into the social system. . . .2° (emphasis added)

Thus Nozick’s “more promising approach” is not promising at all because it does not represent accurately (or even at all) the Randian attempt to derive a theory of rights from her ethical theory. But Nozick does seem to recognize that something more than just starting with “rights” is needed, because he does ask the question of why a person has a right to his own life (i.e., with reference to 4). He shows some indication of grasping the Randian argument by constructing a third sub-argument to prove 4. This third sub-argument has 4 as the conclusion, 1’ as the major premise and 8 as the minor premise. 8 reads: “Each person has a right to be free to pursue his greatest and highest value.” Except for 1’, which we have already discussed, this sub-argument (1', 8, 4) would not be a bad charac-

terization of Rand’s position provided the premises were understood in light of Rand’s metaphysical positions and argument. Unfortunately Nozick does not decide to see the argument in this way. He takes “greatest and highest value” in 8 to be a wholly subjectivist affair (“greatest” and “highest” values meaning whatever anyone decides is “greatest” and “highest”). Thus Nozick concludes that 8 is too strong because Hitler did not have a right to pursue his greatest and highest values. That a subjectivist position is not Randian is clear from even the most superficial reading of Rand. Nozick recognizes this and rebutts his own conclusion about Hitler in his next sentence. Yet instead of trying to come to grips with what might have been wrong with the way he has understood the argument Nozick simply drops discussion of this sub-argument and moves to another one to establish 4.

Nozick on the Randian Argument

255

This last sub-argument centers around steps 9 and 10 and runs as follows: 9) a) “For each person, he should pursue the maintenance of his life as a rational being. b) The “should” in (a) is and should be of more weight, for him, than all other “shoulds.”

10) a) “Each person has a right to do what he should do. b) Each person has a right, which is non-overrideable, to do what he should (where this should has the most weight) do.” Thus: Premise 4 Nozick’s first comment on the above is that he will not deal with step 9 because that is meant to follow from things he has said in Section II of his paper. In other words, Nozick claims step 9 does not hold because of criticisms he made in Section II. By the same sort of reasons,

we

shall not discuss step 9 here, since we have

handled the criticisms Nozick gave in his Section II earlier on in this paper. ' If we look at the sub-argument (i.e., 9, 10, 4) as a whole we see

that it suffers from the same

kind of problem

as the previous

sub-arguments (i.e., 4, 5, 6, 7; and 1’, 8, 4). In all cases (here in 10a)

the notion of a “right” is simply introduced with no indication of what might legitimize its use. As we have already mentioned, the notion of rights for Rand is meant to follow from and be an aspect of her general moral doctrine. Thus it is is not a Randian argument to merely introduce the notion unexplained as Nozick does. If Nozick wants to reply that in fact Rand does not succeed in deriving her notion of rights from her general ethical views, then this is certainly a proper thesis to pursue. However, if that thesis were true then there would be no way to construct a Randian argument in the way Nozick has tried to do here. In other words, given the way Rand sees her own philosophic system, if she is unsuccessful in deriving rights from her general ethical view, then it is completely pointless to start talking in terms of rights. This causes one to wonder whether Nozick has understood the relationship between rights and Rand's overall ethical view, since in fact he provides no arguments to show

that Rand does not succeed in deriving her notion of “rights” from her ethical view. This is one of the most serious difficulties in

256

Douglas Den Uyl and Douglas Rasmussen

Section IV of Nozick’s paper. One cannot attempt to derive Rand's social conclusion (as Nozick set out to do in this section) without saying something about the derivation of rights from Rand's ethical view.24 This lack on Nozick’s part indicates a lack of serious appreciation of Rand’s philosophy in this area.?° With reference to step 10, Nozick, both in the body of the text

and in his footnote 7, asks the question of why, even granted that one has a right (as in 10a and 10b), one should not interfere with that right. This is certainly a curious question, for it seems to us that the concept of a right includes the exercise of that right. Whether or not one is actually allowed to exercise the right in practice is beside the point. In principle, having a right entails being allowed to exercise it—otherwise there is no meaning to “right” (as it is a concept concerning, at least in part, implementation in action).2° Thus on the level of principle, it would be meaningless to say that one both has a right and also that there is no reason why one should not interfere with exercising it. Thus if Nozick grants to Rand “rightstalk” his question is meaningless. Of course, what has just been said could be argued against if Nozick holds the view that rights are merely prima facie, but nowhere does he say this. It is certainly the case that Rand does not hold that rights are prime facie. In conclusion, one can now see from what we have said above that

Nozick has completely failed to construct a Randian argument. Thus any effective criticisms he does make are effective only against his own constructions and not against Rand. Nozick ends Section IV of his paper by making two further points. First of all he says that Rand needs both a harmony of “shoulds” and a harmony of “interests.” This radical distinction between “shoulds” and “interests” strikes us as a purely Kantian move, and nowhere does Nozick argue for the validity of the distinction. If Nozick is coming out of a Kantian tradition he should make it clear to us that this is where he is coming from. Our impression was, however, that Nozick was trying to criticize Rand from within her own framework which is explicitly not Kantian. Secondly, Nozick places Rand in the “optimistic tradition” of ethics. This, so far as it goes, strikes us as an accurate assessment. However, Nozick shows no appreciation for the metaphysical nature of the tradition and Rand's place in it. There is nothing problematic, as Nozick seems to imply there is, about men having different

Nozick on the Randian Argument

257

interests within this “optimistic” framework, since all a “harmony” of interests and shoulds means is that every man ought to act in accord with the demands of his nature as a human being. This leaves a lot of room for divergent activities and interests as one can see from the variety of interests, careers, and life-styles presented by Rand in her novels. It may be true in general to say that the “optimistic tradition” in ethics (e.g., Plato) has not been very tolerant of diversity. Such is not the case, however, with Rand as

she has broadened the scope of what it means to live a rational life.27 Of course,

we

should quickly add also that Rand is not one who

believes in radical tolerance. It would not be quite fair to conclude our discussion of Section IV of Nozick’s paper without offering something that positively reflects Rand's position. In what follows we shall briefly try to outline some of the steps involved in moving from “life as a rational being” to the social conclusion of liberty as a primary value. The statements made here should be taken in light of what we have said in previous sections of this papér. Moreover, what follows should be regarded as an outline and not as an exhaustive and definitive statement of the Randian derivation.?® Since we are not quoting directly from Rand other such derivations (certainly more complete ones) might be possible. Nevertheless what follows should help the reader see more clearly what the Randian position looks like and thus where Nozick has failed to appreciate the mode of philosophizing Rand engages in.

1) Life is an ultimate end, and end in itself, for any living thing. 2) To be a living thing and not be a living thing of a particular kind is impossible. 3) The particular kind of living thing an entity is determines what one must mean when talking of“life” with respect to a given entity.

Ci

Thus, life as the kind of thing it is is the ultimate value for each living thing. (c.f., Sec. II of this paper.) 4) A human being is that kind of living being which can be designated as a rational animal.

Ce

Thus, life as a rational animal is the ultimate value for each

person. 5) A rational animal is an animal whose mode of consciousness is

258

Cs

Douglas Den Uyl and Douglas Rasmussen characterized by the use of concepts, i.e., conceptual awareness is the basic differentiating form of awareness. Thus, conceptual awareness must characterize one who lives as a rational animal, and one only lives as a rational animal in

so far as one engages in conceptual activity. Conceptual awareness is a peculiarly human form of existence. 6) The conceptual mode of cognitive contact with reality is man’s only means of determining how to deal with reality so as to sustain his own existence.

7) Actions taken in accord with judgments of how to deal with reality are man’s only means of dealing with reality so as to sustain his own existence.

Ca

Thus, living as a rational being means, minimally, acting in accordance with conceptual judgments. 8) Conceptual awareness is not automatic. It must be initiated and sustained by a constant act of choice or volition on the part of the person. Conceptual awareness cannot exist save through the person's choice to engage in such a mode of awareness.

9) C4 Cs Thus, a precondition for living the life of a rational animal is that within any given context one be free from interference upon acting according to one’s judgment. 10) Since C2 11) And since Cs

Ce

Anything which threatens the precondition for living the life of a rational animal is of ultimate disvalue. 12) In a social context, the initiation of physical force (and by extension the threat thereof) by one man against another serves to destroy the precondition for living the life of a rational animal, since acting upon one’s judgment becomes impossible. Cz Thus, the initiation of physical force is an ultimate disvalue. 13) Ca and C7 have moral significance, i.e., one ought to act as described in C4 and ought not act as described in C7.29 Cs Thus, one human being ought not initiate the use of physical force against another man. 14) “Rights” is a moral concept determining the limits or boundaries of human interaction.

Nozick on the Randian Argument

259

15) Cs represents a boundary condition of human action. ‘Thus, one has no right to initiate the use of physical force against another human being. 16) Because of Cz, Co is the ultimate social principle. Cio Thus, no other social principle or other rights can include the initiation of physical force as their means of being exercised.3°

Ca

As we have already said, the above provides an outline of steps. To any philosopher there would indeed be a number of controversial points and a number of areas that need further elaboration. We have already noted one such place at step 13. Many such steps could be filled in by reading Rand’s own work. The filling in of other steps could not be gotten from Rand’s work alone but would have to be filled in by drawing out the implications of what Rand does say. Whatever the case may be, the above scheme at least better indicates the Randian argument than does Nozick’s own construction. Granted that Rand has not done the complete job in this area, nevertheless she has provided sufficient guideposts for determining her position. Such guideposts were passed over in the fourth section of Nozick’s paper. Vv

Nozick begins his discussion in Section V of this paper by saying that he intends to deal with the other side of the social principle question. The first side of this question was dealt with in Section IV and was “don't sacrifice another to yourself.” The side to be dealt with here is “don't sacrifice yourself to another.” In this connection Nozick quotes Rand's statement of, “To live for his own sake means the achievement of his own happiness is man’s highest moral purpose.” Before examining Nozick’s arguments an initial point should be made. It is not at all clear that Nozick dealt just with the “don’t sacrifice another to oneself” principle in Section IV. Indeed, if we go back to Section IV and review the argument there one wonders whether Nozick has simply just forgotten what he had said earlier. The first sub-argument here (1, 1’, and 2) explicitly deals with the topic that is supposedly being taken up anew here in Section V. Whatever the reasons may be, let us nevertheless examine what Nozick does say in Section V.

260

Douglas Den Uyl and Douglas Rasmussen

As a counter example to the non-self-sacrifice principle Nozick brings up the suicide example from Atlas Shrugged. The case involves Galt threatening to commit suicide if Dagny, whom he loves, is caught and tortured. Apart from this case looking like it violates the non-self-sacrifice principle, Nozick goes on to argue that Galt would also be committed to suicide if Dagny were to die of some disease. This indicates, Nozick claims, little “moral fiber” on

Galt’s part. Nozick’s analysis, however, suffers from the fatal flaw of context dropping. In the first case Galt contemplates suicide because it

seems to him that the possibility of living in a world of rational values is being closed off for him. Moreover, Galt is in a very unique position here. It is he that his enemies are after (not Dagny). The dramatic action of the novel indicates that were Galt to succumb to his enemies (i.e., by meeting their demands) the chances for there being a world of rational values at all would be non-existent. For the same reason that many of the businessmen in the novel destroyed their own businesses rather than give in, Galt is contemplating suicide.

In other words,

rather than sell out Galt will make

it

impossible for such values (the rational ones) to be expropriated. The disease example is a far cry from such an extraordinary circumstance. Disease is part of the normal risk of living. Death by disease hardly places Galt in the pivotal position he takes on in the novel. The interesting question here is whether under normal circumstances it is possible in Rand’s system for one to rationally contemplate suicide at simply the death of one’s lover. So far as we know a full answer to this question is not forthcoming from Rand. Yet one can say that risking one’s life for one’s lover is a part of Rand's doctrine in that taking risks for one’s highest value?! would be a normal part of what one would be willing to do to try and keep such a value. Nozick once again seems to think that living for one’s own sake means merely striving to keep oneself alive. In any case, we must recognize the somewhat unrealistic and dramatic characterization of John Galt and the Galt/Taggart love affair. The picture Rand paints is such that the only person meant for Galt (or worthy of him) was Dagny and vice versa. Given such a condition perhaps the possibility of suicide seems more intelligible. One should also recognize that part of the reason Rand paints the picture she does is to dramatize her view of love in human interaction. The partner in a

Nozick on the Randian Argument

261

love relationship is the best embodiment of one’s own value judgments. The partner best expresses those values one wants to see most in others. Rand has, in effect, dramatized what the destruction

of that can mean to an individual. In short, Nozick’s lack of appreciation of differences in context do not allow him a means of dealing fairly with the Randian position. It is ultimately, in our opinion, context which must decide any question of suicide for Rand (such as the question we posed above); and in all her novels the question of risking one’s life and contemplating suicide are set in extraordinary circumstances. The normal man seldom faces such circumstances and usually has other ways of overcoming his grief in cases of tragedy. Where all such channels are closed, suicide may not be an irrational course of action. In any case, one cannot examine suicide in abstracto. Context must always play a part in any analysis, which it did not in Nozick’s account. Nozick continues his discussion by asking a series of questions and posing three kinds of problematic cases (given as (a), (b), and (c) ). We cannot go into an explanation and analysis of each and every question and problem Nozick poses (nor is there any need to). However, the following quoted passages are a fair representation of Nozick’s line of attack and should sufficiently indicate to the reader what Nozick’s approach is. A fruitless path to follow is to say that it is the short period of happiness while he is sacrificing his life that justifies the whole thing. So that, in thinking about a situation in which both are unconscious and only one can be saved by a third party, he would prefer it were himself because in that situation he wouldn't get to feel the happiness of saving her life? . . . But (a) we can imagine he’s answering, quickly, a large number of questions on some psychological test, so that there’s no time to pause for a glow of happiness. Is it now for the happiness he knows he'll feel after the test is over (mightn’t he forget and not recall the question?) that he answers as he does? (b) Why doesn’t he feel sad in contemplating his dying and her surviving? To be sure, he may think it’s better than their both dying, or her dying and his surviving, but why should the existence of some worse alternative . . . make one happy in contemplating A [(a)?]? In fact, it doesn’t, and we don't have this easy path to happiness. (c) Most importantly, this answer gets things backwards. For one would be made happy by placing one’s family in the only places in the raft only

262

Douglas Den Uyl and Douglas Rasmussen

because one values their survival above one’s own, their happiness above one’s own.

The basic problem with the arguments quoted above (and with all of what Nozick says here) is that he takes “happiness” for Rand to be some kind of mometary “inner glow” or pleasure (e.g., as in (a) and (b) above). Like many moderns, Nozick seems to boil all feelings down to the same level, making no differentiation between an itch on one’s nose and an aesthetic response to a great symphony. Rand is very specific about what happiness means. She defines it as a state “of non-contradictory joy.22 The implications of this definition, which

Nozick has missed,

are that, while indeed happiness is a

psychic state, it is a state which is not a momentary pleasure or isolated feeling but rather an attitude resulting from a well integrated set of rational values utilized over a long period of making choices and taking actions. Happiness is not a momentary “inner glow’ or pleasure. The following passages from Rand indicate this quite clearly. Happiness is that state of consciousness which proceeds from the achievement of one’s values. If a man values productive work, his happiness is the measure of his success in the service of his life. But if a man values . . . mindless “kicks” . . . his alleged happiness is the measure of his success in the service of his own destruction. Neither life nor happiness can be achieved by the pursuit of irrational whims. Just as man is free to attempt to survive by any random means, as a parasite, a moocher, or a looter, but not free to succeed at it beyond the range of the moment—-so he is free to seek his happiness in any irrational fraud, any whim, any delusion, any mindless escape from reality, but not free to succeed at it beyond the range of the moment nor to escape the consequences. . . And when one experiences the kind of pure happiness that is an end in itself—the kind that makes one think: “This is worth living for’—what one is greeting and affirming in emotional terms is the metaphysical fact that life is an end in itself.38

Happiness in Rand's philosophy functions in much the same way as in Plato’s and Aristotle’s. It is something that takes time and training to achieve. If one is to call it a pleasure it is a pleasure of a vastly different order and significance than the way we use the term in

Nozick on the Randian Argument everyday

speech.

Happiness

is a lasting and continuous

263 sense of

rightness with the world. The sense of this was meant to be conveyed by Rand’s choice of the word “joy.” A more classical synonym might be “felicity.”"°4 Because Nozick has failed to appreciate Rand’s view of happiness (or to give any signs of such appreciation), his criticisms are simply not directed at anything even approaching a Randian doctrine. Nozick’s mode of attack changes somewhat in the second half of Section V. Here Nozick constructs two examples to show that one can indeed be happy even though moral rules are violated.*® The first case is where a father implants in his child a chemical that makes him act according to the correct moral principles P at all times except for certain situations S where “he knows that deviating from them will be in his interests,” e.g., “by murdering someone and taking his fortune.” The child afterwards forgets what he has done in situation S and lives a life of bliss. Thus, so Nozick seems to

reason, we have a case where one is happy while violating moral rules. Nozick also claims that one concerned with his own happiness would want to have such a device implanted in himself. The example falls wide of its mark on a number of counts: a) a necessary part of what it means to live by moral principles is that the one who lives by them be responsible for his actions. There is no reason here to believe the child is acting as a morally responsible agent either in situation S or in following principles P. To respond by saying that whether the child was responsible or not makes no difference because the point is that the child took the actions and was happy, is not an intelligible response. In fact, the child did not take the actions in any morally relevant way (though his body did perform certain motions). Nozick might just as well have said that it is possible to be happy by being put in a state of drugged stupor for the rest of one’s life, for this is all Nozick’s example comes down to. b) Nozick seems to be in the Kantian camp by regarding moral activity as a mere obedience to moral law. His example comes down to acontemporary facsimile of Kant’s arguments for the separation of moral law from interest.

know think like.3 there

Nozick, of course,

never lets the reader

explicitly just where he is coming from. c) Nozick seems to that happiness consists in merely having a fortune or the This is certainly not obviously the way to happiness, and is absolutely nothing in Rand to indicate that the mere

264

Douglas Den Uyl and Douglas Rasmussen

possession of objects constitutes happiness. d) The case itself is simply absurd. Nozick is going to have to assume away, the questions the child will ask about the fortune and where it came from,

the law and investigations into the case, rumors about the way the fortune was gotten that might reach the child, doctors who might come upon the device or chemical implanted in the child during an examination,

etc.

In short,

Nozick

has to assume

a worldwide

conspiracy. We might as well take this Cartesian path even further and suppose that there is an evil genius who has deceived everyone about moral principles! Such examples are not really worth analyzing as they assume away too many relevant considerations; yet since

we have come this far we might as well finish the job. If we suppose that there was this iron clad world conspiracy, that the child knows absolutely nothing about it and also was fully convinced that all his actions were done according to P and that the consequences of his actions could not affect him in any way other than a “good” way, etc., then we have reached a point where we might legitimately respond in the following way: “show us how the ‘possible’ case you have constructed precludes the possibility of the child actually being the one who followed P while everyone else was deceived into thinking they had deceived the child.” If Nozick cannot preclude this possibility then either the case is a subjective fantasy and not a real possibility (i.e., if Nozick responds by merely saying that he did not set up the case that way), or there is no way to decide between the two alternatives (i.e., between Nozick’s case or ours) and thus

what Nozick is offering us is no alternative at all (since an alternative presupposes at least some way of deciding upon it, which means enough information must at least be theoretically present to exclude one of the alternatives). Nozick’s second example is another case of world conspiracy. Here we have a man who thinks he has lived properly but everyone secretly despises him. Nozick’s basic error here is to suppose that one’s happiness is derived from the opinions of others—something that Rand explicitly denies.?7 Thus the example does not touch her doctrine. But Nozick never tells us why the others despise him. There are two basic options: 1) the people who despise the man are evil and the man is good. This is essentially Plato’s example of the just man suffering injustice completely alone, which is presented in the Republic. Here Rand’s answer is similar to Plato’ s—happiness

Nozick on the Randian Argument

265

necessarily results from right action whether others recognize the correctness of those actions or not.38 Or b) the man was evil and the good people despised him for it. If this is the case then Nozick begs the question because he was going to show how one could be happy and immoral. In short, both examples simply fail to deal with Rand. A more promising approach to attacking Rand would be to use similar arguments to those that have been advanced against traditional teleological ethical theories. This, however, is something

Nozick does not do. Nozick concludes the final section of his paper by placing Rand in a tradition which he calls “experiential ethics.” Experiential ethical theories hold that the only facts relevant to moral assessments of actions

are

how

these actions

do, or are intended

to affect the

experiences of various persons.” Now if membership in the camp of experiential ethical theorists is determined by Nozick’s understanding of Rand in this section, then clearly Rand does not belong to that group of theorists. However, if membership in the camp would include any theorist who does not divorce interest from morality (e.g., Plato, Aristotle, Thomas Aquinas, etc.) then surely

Rand falls into the tradition. Nozick does not say enough to let us know which of these alternatives he is referring to. Yet if Nozick means to be attacking the whole tradition of interest theories then the question is well beyond the Randian position (which is only one of many). If such is the case, one paragraph (with a footnote to Nagel) is hardly sufficient to combat that tradition. We have seen throughout this paper that Nozick’s attacks on Rand have failed largely because he has misunderstood or avoided understanding Rand’s doctrine. There are certainly places where this misunderstanding is more excusable than others. Moreover, there is

no question that often Rand’s style of philosophizing is literary, hyperbolic, and emotional. This always makes interpreting her difficult and troublesome. Nevertheless, an implicit purpose of this paper has been to show that there is a meaningful philosophic doctrine underlying Rand’s seemingly merely ideological positions, and that patience and sensitivity can bring that doctrine out. We regard Nozick’s failure to understand Rand as probably due to the difficulty of reading her properly. We also do not want to appear to be claiming that Rand’s doctrine is beyond responsible criticism. Yet for such criticism to be meaningful understanding must first be

266

Douglas Den Uyl and Douglas Rasmussen

present. Perhaps some of Nozick’s points could be forceful criticisms if restated in light of what has been said here. Such criticisms would certainly be welcomed by us. NOTES

*This paper was presented at the annual meeting of the American Association for the Philosophic Study of Society at Bowling Green State University in Bowling Green, Ohio on October 9, 1976. 1. Though Rand has not engaged in any discussion of her philosophical theories in any journal which we know of, aspects of her thought have been considered by others in various journals and books. In The Personalist the following articles deal with or use aspects of Rand’s thought: Nathaniel Branden, “Rational Egoism: A Reply to Professor Emmons’ (Spring 1970); Douglas Den Uyl, “Ethical Egoism and Gewirth’s PCC” (Autumn 1975); William Dwyer, “The Argument Against an Objective Standard of Value” (Spring 1974); Donald C. Emmons, “Rational Egoism: Random Observations” (Winter 1971); John Hospers, “Rule Egoism” (Autumn 1973); Dale Lugenbehl: “The Argument for an Objective Standard of Value” (Spring 1974); Tibor Machan, “Rationale for Human Rights” (Spring 1971); Eric Mack, “How to Derive Ethical Egoism” (Autumn 1971) and “Egoism and Rights” (Winter 1973); George Mavrodes, “Property” (Summer 1972): and Douglas Rasmussen, “A Critique of Rawls’ Theory of Justice” (Summer 1974). The following works by Tibor Machan utilize Rand’s philosophical position either explicitly or implicitly: “Human Rights: Some Points of Clarification,” The Journal of Critical Analysis (July/October 1973); “Selfishness and Capitalism,” Inquiry (Autumn 1974); “Ayn Rand: A Contemporary Heretic?,” The Occasional Review (Winter 1976), and “Prima Facie versus Natural (Human) Rights,” The Journal of Value Inquiry (forthcoming). Relevant books by Machan include The Pseudo-Science of B. F. Skinner (Arlington House, 1974) and Human Rights and Human Liberties (Nelson Hall, 1975). Other discussions relevant here are: Edward Regis Jr.’s review of John Hosper’s Libertarianism in the Journal of Critical Analysis (January 1972); Kenneth J. Smith, “Ayn Rand: Objectivism or Existentialism,” Religious Humanism (Winter 1970); Stephen E. Taylor, “Is Ayn Rand Really Selfish . . . Or Only Confused?,” Journal of Thought (January 1969); Austin Fagothey, Right and Reason, 6th edition (C. V. Mosby, 1976); Vincent C. Punzo, Reflective Naturalism (Macmillan, 1969): Hazel Barnes, An Existentialist Ethic (Vintage, 1971); John Hospers, Human Conduct (Harcourt Brace Jovanovich, 1972), An Introduction to Philosophical Analysis, 2nd ed. (Prentice-Hall, 1967), and Libertarianism (Nash, 1971).

Nozick on the Randian Argument

267

2. Ayn Rand, “The Objectivist Ethics,” The Virtue of Selfishness (New York, The New American Library, Signet Edition), p. 15. 3. Rand does not believe that “purposive” is applicable to the behavior of all living things. She judges it as inappropraite for insentiate nature. “Goal-directed” is applicable to the behavior of insentiate living things only in the sense that the automatic function of the organism results in the achievement of some end. Ibid., p. 16. 4. Ibid., p. 16. 5. Since Conclusion I seems to say nothing as to whether there could be values (values without a purpose) if there were no living beings, it may be the case that Nozick views “value” as something which does not require a valuer. In other words, it may for Nozick be that something could be a value simply in virtue of what it was and not because it fulfilled some need or purpose. Nozick may, most assuredly, speak this way, but he should not do so when trying to present Rand’s position. c.f., note 16. 6. Nathaniel Branden, “Benevolence versus Altruism,” The Objectivist

Newsletter, Vol. I, No. 7 (July 1962), pp. 27-28. 7. Rand, “The Objectivist Ethics,” op. cit., p. 23. B,. Ubid., ps 24.

On thd ps2. 10. Ibid., p. 22. 11. Ibid., p. 15. 12. Ibid, p. 17. abies 1 14. As will become

evident soon,

if not already,

Rand’s conception of

value is one that considers value as neither belonging to the subject alone (as for example, an attribute of its action) nor to the object of the subject's action alone (as for example, an attribute of the object itself). Rather, a value is the relationship an aspect of reality holds to a living thing in virtue of the characteristics both possess—namely, the characteristics of the aspect of reality that cause it to be an object of an action, an end, and the characteris-

tics of the living thing that cause it to act for an end. It would be a mistake, then, to attempt to understand Rand’s approach to value as either making value a subjective phenomenon only or an intrinsic one only. We believe Tibor R. Machan in his book Human Rights and Human Liberties (op. cit.), has expressed Rand’s view of value very adequately when he wrote: “[T]here are no intrinsically beautiful or good or right things, only things that are good, right, or beautiful in relation to living entities for which things can be good, right, and beautiful in terms of purposes or goals.” (p.

66) 15. Further, death is not even a value since it is not something one can act to gain and/or keep. Death is “achieved” only in the sense that the life

268

Douglas Den Uyl and Douglas Rasmussen

sustaining actions of a living thing fail to maintain the entity's life, and thus result in its not-being,

death.

In short, it makes

no

sense

to speak of

“gaining a complete cessation. 16. c.f., “What

is Capitalism,” Capitalism:

The Unknown

Ideal (New

York, New American Library, Signet Edition, 1967), pp. 21-22, for a discussion of the “intrinsic” view of the good. 17. We also believe that our explanation of Rand’s approach shows how these possibilities and their respective problems are not ones that concern Rand's argument. 18. The phrase in quotes is Nozick’s way of speaking and not necessarily Rand's. 19. Our numbering of the steps of the argument will of course follow Nozick’s own. 20. One should note that even Nozick’s use of “as a rational being” can be misleading. A more correct phraseology would be “as a rational animal.” 21. Rand, “Objectivist Ethics,” op. cit., p. 24. 22. This is the kind of question that indicates Rand’s place in the Aristotelian/Thomistic tradition—a tradition that in some ways Rand herself acknowledges being in. Yet Nozick shows no indication of seeing that Rand might fit in this tradition. 23. Rand, Capitalism: The Unknown Ideal; “Man’s Rights,” op. cit., p. 320; 321,

24. c.f., Tibor Machan, Human Rights and Human Liberties, op. cit., chapters 2-4. 25. Nozick does appear to be starting to correct this problem in footnote 7 but never really comes to the issue here either. 26. Indeed, Nozick even uses the term “non-overrideable” in 10b, but in light of what he says afterwards this seems to be another case of a term Nozick has merely chosen to ignore in his criticism. 27. For example, consider, “it is not the degree of aman’s ability nor the scale of his work that is ethically relevant here, but the fullest and most purposeful use of his mind.” “Objectivist Ethics,” op. cit., p. 26-27. 28. c.f., 24 above for a more complete account. 29. Admittedly this is a large step even given what we have said earlier in the paper. To help clarify the rationale behind this step we refer the reader to Eric Mack, “How to Derive Ethical Egoism,” op. cit. 30. The full implications of this principle can be obtained from both Rand's fictional and non-fictional work. 31. It should be noted here that one’s highest value—in this context, one’s lover—is not equivalent with the ultimate value which is man’s life qua man. 32. “Objectivist Ethics,” op. cit., p. 29.

Nozick on the Randian Argument

269

33. Ibid., p. 28, 29. 34. The term “felicity” is derived from the latin “feliciter” which expresses a sense of “fruitfulness,” “abundance,” “advantage,” “favorableness,”

and “successfulness.” No sense of momentary “glows” or “pleasures” are included. 35. Rand, of course, claims that, “Happiness is possible only to a rational man, the man who desires nothing but rational goals, seeks nothing but rational values, and finds his joy in nothing but rational actions.” Ibid., p. 29.

36. For a discussion of determining what is in one’s self-interest c.f. Den Uyl, “Ethical Egoism and Gewirth’s PCC,” op. cit., Sec. I.

37. For a fuller discussion of this whole issue c.f., “The Psychological Meaning of Man’s ‘Need’ of Approval,” in The Objectivist Newsletter, March 1962, and “Social Metaphysics,” Nov. 1962, Vol. I, No. 3, 11.

38. This is not to say that one recognized those actions as right.

could not be happier if others also

13 The Time-Frame Theory of Governmental Legitimacy ELLEN

FRANKEL

PAUL

Political theories grounded upon a natural rights moral foundation have presented varied alternatives to the question of how people come to be obligated to political regimes. In the early tradition of natural rights argumentation, men like Locke! and Spencer? attempted to combine a natural rights moral underpinning with consent theory through the device of the social contract. A contemporary political philosopher, Professor Robert Nozick, attempts to elucidate a new approach which would, presumably, replace the social compact as an explanation of how men can become obligated to government without their natural rights being violated. It will be the contention of the first section of the ensuing paper that both solutions to the problem of political obligation—the LockianSpencerian and the Nozickian—fail, and that a new theory of political legitimacy, the time-frame theory, can solve the problem and still remain compatible with a natural rights moral framework. In the final section, I will attempt to give an ontological deduction of natural rights based upon a revision of the argument advanced by Herbert Spencer in his essay, “The Great Political Superstition,” which appeared in his work The Man Versus the State. 270

The Time-Frame Theory

271

I

What can we make of a theory which attempts to combine both a theory of consent (whether actual, as in Locke, or hypothetical, as in Spencer) and one of natural rights to determine the nature and extent of governmental legitimacy? Both Locke’s and Spencer's arguments take the following form: 1) men have, by nature, the natural rights of life, liberty, and property, for the protection of which governments may be established; 2) a government may be legitimately established by the unanimous consent of its future citizens, and that government's authority has just such bounds as they choose to impose, with the proviso that men cannot (Locke) or will not (Spencer) consent to absolute, arbitrary rule; 3) when government exceeds its legitimate function—i.e., legislating the protection of natural rights—then it acts as an aggressor and may be legitimately resisted by its citizens. Is this account of governmental legitimacy internally consistent? The answer is, clearly, in the negative. If natural rights are proven, then the consent of individuals to government is purely extraneous to the question of legitimacy and contradictory to a natural rights position. It is contradictory to assert, it will be argued, that a rights protecting state needs some sanction other than its performance as a rights protector to render it legitimate. What Locke and Spencer have done by arguing that consent, whether hypothetical or actual, is the legitimator of government is to pose an alternative theory to natural rights, without realizing what they have done. If consent is the vehicle oflegitimacy, then it is perfectly conceivable that individuals could voluntarily consent to a government which systematically violated natural rights. Whims of individuals being unpredictable, it is merely an act of faith on their part to suppose that universal consent would yield the rights protecting minimal state which they desire. Even the device of a hypothetical contract is a tenuous gambit, for it is quite evident that

a Rawlsian? would derive a redistributive state from such a contract, much to their distaste.

Thus, point (2), that government authority is derived from individual consent, and (1), that governments are legitimate only when they uphold natural rights, are not coextensive. To say that individuals by consent establish and set the limits to governmental

272 action,

Ellen Frankel Paul and

then

to

assert

that

there

is some

other

ethical

sanction—natural rights—by which laws are to be judged, is to conflate two entirely different theories. Finally, point (3) appears to direct citizens to break with moral impunity laws which are not consistent with natural rights. The possible effects of such an injunction might be that an individual may break laws unanimously agreed upon by the contractees (or by a majority), as long as he thinks his natural rights are being abrogated. Obviously, Spencer and Locke cannot have it both ways; either natural rights provide ethical sanction for government, or individual consent establishes governmental legitimacy. By attempting to combine the two theories they have succeeded only in promulgating a theory which leads to contradictory evaluations in specific cases; e.g., government X is legitimate because it was established by universal consent, and government X is illegitimate because its laws violate natural rights. They were able to contain these two theories in alliance by the belief that individuals would voluntarily and universally consent only to the non-rights violating minimal state. But to make such an assumption is, quite simply, to engage in an act of faith. It is far more

consistent

to follow

the

Buchanan-Tullock*

position,

agreeing that any government which emerges from an act of unanimous consent is legitimate even if it might establish a rights violating state. If such a concession were made, as a consistent contractarian would be compelled to admit, then it becomes apparent that one must either be a contractarian on the question of the origins of governmental legitimacy or a natural rights proponent. We have discovered from the previous discussion that the attempt to combine natural rights and contract-consent theory fails. What I propose to accomplish in the ensuing argument is to demonstrate that a consistent theory of governmental legitimacy can be formulated on a natural rights moral underpinning alone, without recourse to any element of consent theory. A defense of natural rights will, once again, be assumed for the sake of this argument. Robert Nozick, in his book Anarchy, State, and Utopia,® proposes

an historical account of how a minimal state might emerge from a state of nature without violating anyone’s natural rights. While such an account may be intrinsically interesting, it is entirely irrelevant, I

The Time-Frame Theory

973

shall argue, to the question of determining whether government X, Y, or Z is, in fact, legitimate.

What I propose in place of such an historical theory is an entirely a-historical theory, one which examines the constitutional framework, laws, acts of enforcement, and method of adjudication of a given government over a designated period and asks only the following question—is government X acting to preserve and protect

the natural rights of its subjects? If the answer is unequivocally (very unlikely in the real world) or predominantly in the affirmative, then it is a legitimate government and its citizens would be acting in contravention of natural rights if they attempted to overthrow it; if the answer is unequivocally or predominantly in the negative, then it is illegitimate and may be overthrown with moral impunity and as prudential calculations indicate an opportune moment. I have refrained from using the conventional terminiology—i.e.,

that when

government X is legitimate its citizens are obligated to obey it— because of the statist connotations of such phraseology. It is not that citizen A owes allegiance to legitimate state X, but that legitimate state X owes citizen A the protection of his rights. The only thing citizen A must do is to refrain from violating the rights of citizens B, C,D... etc. He owes the government nothing, for its function is simply,

in Locke’s

formulation,

to give a univocal

and universal

interpretation to the natural law, that is, the law which designates exactly what categories of entities and territory qualify as property, what constitutes a violation of an individual's right to life, and what actions of one person limit the liberty of another. I shall designate this theory of governmental legitimacy the time-frame theory, the injunctions of which are the following: 1. Examine

government

X at time-frame

tyt,, or tg-tz3 ...

or

th-i-th;

2. Determine whether the government's constitutional structure (written or traditional), body of laws, and method of enforcement and adjudication are consistent with and protective of the natural rights of the individuals who live under its jurisdiction;

3. If, on balance, the government is acting in a non-rights violating manner (if it is not systematically violating rights by conscripting, taxing, depriving people of their property, or not

274

Ellen Frankel Paul

protecting the lives or property of individuals, and furthermore, if violations of rights occur as mere accidents, non-systematically and are justly compensated), then it is legitimate; 4. Such a government, which systematically violates no one’s rights, and protects the rights of all subjects from force, fraud, and violence ought not to be acted against; anyone who overthrows such a government would be acting in an immoral fashion, he would be acting to endanger the sanctity and security of the natural rights of

his fellow citizens. What this theory alleges, then, is that while Nozickian “entitlement theory’® is the proper determinant of the legitimacy of private property holdings and transactions, such an historical theory is extraneous to a determination of the legitimacy of any particular government. Under the time-frame theory, a government is legitimate only if it is a non-rights violating government and it guarantees the rights of its citizens from invasion by other individuals or states. In other words, it must be a minimal state, limited in its functions to

internal and external defense, promulgating the natural law, and establishing a judicial system with a final arbiter of disputes. Hence, it makes no difference to the question of legitimacy how such a government came to power, whether by violence, conquest, fraud, tradition, election, laws of succession, or whatever. What about the cases in which a government has come to power through such unsavory, rights violating acts as mass slaughter or the forcible expropriation of peoples’ property? Would such a state be legitimate under the time-frame theory if it were now, in tj-to, non-rights violating. The answer would be yes, it is legitimate. But what about the individuals who now occupy positions of power in this government and who were massive violators of the natural rights of individuals prior to their acquisition of power? The Nozickian entitlement theory would apply to them as individuals, not as current officials of a government. The charges would be that they attained the property of individuals A, B, C, D by illegitimate means (not by either first occupancy, purchase, transfer, bequest, or inheritance from the legitimate title holder) and they deprived individuals E, F, G, H of their lives. As rights violators the present minimal state would try and punish them. If it failed to do so it would lose its status as a legitimate state.

The Time-Frame Theory

275

Can this theory successfully handle such extreme cases as the following: A government comes to power through extensive rights violations and, now, all property is in the hands of or under the direct control of a dictator, and yet the government was strictly non-rights violating in t)-tz. Would it be a legitimate government? Well, we might say it is illegitimate because the government goes beyond the minimal state in being an owner of property and an intervener in the economic realm which ought to be strictly separate from government. But what about the case where the dictator as a private individual owned all the wealth in the country and everyone else was forced to do his bidding in order to remain alive. In this instance, the government is not exercising any illegitimate economic function and the dictator is not using the power of the state to coerce

anyone

because

the government

owns

no property

and simply defends the property rights of citizen Dictator under the minimal state. The answer to the question of legitimacy would be precisely this—that the government is legitimate because it upholds rights and is a minimal state. However, the dictator who gained his wealth by violating property rights before he acquired political power is a criminal under the property “entitlement theory,” and he holds no legitimate title to the property he forcibly confiscated. Thus, the original title holders could bring their cases before the judiciary of the dictator's minimal state. If their claims were honored and their property restored, an unlikely occurrence, then the government would retain its legitimacy. If, as is far more likely, the dictator's judges dismissed the legitimate claims of the title holders, then it would be acting in a rights violating manner and the government would no longer be legitimate. In Locke’s felicitous phrase, one would then legitimately (i.e., morally) make an “appeal to heaven.” The previous example helps clarify the way in which the timeframe theory handles the question of governmental legitimacy: the theory applies to already existing governments, it is present oriented, and it is an a-historical principle. Thus, it stands in contrast to the theory of governmental legitimacy which is past oriented and historical. What course can the individual pursue against a government which is a gross violator of rights under the time-frame theory? Ifa government is a massive transgressor against individual rights, then,

276

Ellen Frankel Paul

obviously, there is no immorality entailed by acts which violate its laws that are themselves rights-violating. And, in more extreme cases of gross and systematic incursions by government on individual rights, revolutionary

measures

would

be justified;

i.e., a

revolution that would seek to establish a minimal state. Whether one obeys the edicts of such an “outlaw” government is simply a prudential, and not a moral, question to be decided on consequentialist grounds; i.e., will my resistance be successful, am I sacri-

ficing myself and my own self-interest without even a remote chance of securing the minimal state, is my chance of successful resistance

worth to me the likely penalty if I fail, is the time ripe, is it likely that the present government will be replaced by one even worse than the present one rather than the minimal state I seek. . . .? Is this theory unduly destabilizing and destructive of existing governments as Jeremy Bentham, for one, feared from all a priori, natural rights theories? The answer is yes and no. Yes, since in theory it undercuts any supposed “moral obligations” to obey the edicts of almost all’existing governments, and some of the rights violating laws of even the best governments. But probably no, on prudential grounds, because in all but the most grievous cases of governmental oppression men will bear quite a lot from government without resorting to arms, as Locke foresaw.7 And as the proliferation and apparent permenance

of contemporary

totalitarian states indicate,

where rights transgressions are the most egregious and systematic, the opportunities, and indeed the inclination, for resistance are the most restricted. Rather than being destructive of all governments, the time-frame theory provides a much needed antidote to the twentieth century fascination with the all encompassing, overweaning, rights-violating, bureaucratic state. One further point of clarification ought to be made, although of necessity rather briefly, and that is in refutation of the natural rights anarchists’ claim that even the minimal state is by its very nature an offender against natural rights. The force of this claim is somewhat blunted when the minimal state is denied the powers of conscription and compulsory taxation, and when it protects only those individuals who voluntarily contract with it to defend their rights. However, the appeal of the anarchists’ claim lies in their contentions that a) the minimal state limits your rights by denying to you the discretion to decide what in actuality constitutes a violation of your rights, and b)

The Time-Frame Theory

277

the state acts as a rights violator when it imposes its laws upon an innocent person and comes, mistakenly, to arrest him. In regard to contention (a), I would claim that it is not an inherent component of natural rights theory that each individual has discretion over the interpretation of what laws will most felicitously give expression to the natural rights of life, liberty, and property. As Locke contended,® in the state of nature where no common power exists to promulgate the natural law (the law which lays out the limits of the natural rights of persons living in groups) each individual can be a legislator and an enforcer of his own natural rights, (I am not, here, adopting an historical argument from a state of nature, but simply illustrating what is and what is not an inherent part of natural rights). That when men live under a government this power they had when government did not exist is taken from them, cannot be gainsaid. Yet, this power to legislate for themselves in a state of nature is the result of there being no more efficient mechanism for universally (that is, throughout a given territory) giving expression to the natural law. It is not a moral question, this question of who shall interpret the natural law, as would be the question of whether men do in fact have natural rights, but purely a prudential question. That is, in whose hands will the power to give written expression to the natural law provide the most efficient framework for the protection of natural rights. On Lockian grounds? of efficiency—i.e., that a state of nature provides no common judge, no readily ascertainable laws, no means of surmounting partiality, etc.—I would contend that the minimal state provides a more efficient means of giving definition to natural rights than would the state of nature scenario in which each individual acts as legislator. By the state’s promulgating laws in accordance with the natural rights of the individual, one is

not being deprived of an inherent capacity given to one irrevocably under the natural rights theory. It is, nevertheless, true that the individual is not as free as he was in a state of nature. A prudential trade-off has occurred: a tangential, circumstantial freedom for each

to legislate for himself has been abrogated in order for natural rights to be systematically protected. As regards the anarchists’ second point, it is true that the state violates an individual’s rights when he is unjustly arrested. However, the libertarian anarchists’ protection agencies would be placed in the same position of rights violators if they came to arrest an

278

innocent person.

Ellen Frankel Paul

Under anarchism one would have the right to

resist such an unjust enforcer, while under the minimal state one

would have a right to compensation and damages for false arrest. Again, it is purely a prudential question—which system protects rights more efficiently: one that sanctions a multiplicity of protection agencies, each legislating their own interpretations of the natural law, arresting and punishing offenders, making their own share of mistakes in arrests, and being resisted by innocent (or even guilty) individuals whom they come to arrest—the anarchist model; or one

that sanctions a single legislator, who enforces and makes its share of mistakes, and compensates the unjustly accused in a peaceful transaction in accordance with the rule of law—the model?

minimal state

II

Throughout the previous discussion of the problem of governmental legitimacy, I have simply assumed that natural rights is the proper moral foundation for a political system. However, leaving matters as they presently stand, with natural rights being nothing more than a hypothesis, seems philosophically incomplete. It is my hope and expectation that we can do better than that. Herbert Spencer’s deduction of natural rights will present an interesting, albeit ultimately unsatisfactory, beginning. Spencer begins by transferring the question of natural rights from the “court of politics” to the “court of science;” he proposes to trace men’s rights back to the “laws oflife;” i.e., the general conditions of individual life, and only then, the general conditions of social life. The verdict will, he claims, be the same in both cases. In Spencer's words: Animal life involves waste; waste must be met by repair; repair implies nutrition. Again, nutrition presupposes obtainment of food; food cannot be gotten without powers of prehension and, usually, of locomotion; and that

these powers may achieve their ends there must be freedom to move about. If you shut up a mammal in a small space, or tie its limbs together, or take from it the food it has procured, you eventually, by persistence in one or other of these courses, cause its death. Passing a certain point, hindrance to

the fulfillment of these requirements is fatal. And all this, which holds of the higher animals at large, of course holds of man.?°

The Time-Frame Theory Given that warrant to Well, says implication terminated,

279

such are the conditions of life, is there any ethical be found for these actions, by which life is sustained? Spencer, if we adopt philosophical pessimism with the that life in general is evil and should be speedily then there is no moral sanction for these life maintain-

ing activities, and the whole question becomes moot. However, if we adopt the optimistic or melioristic claim that life is a value, that

life is good (i.e., that, on balance, life yields more pleasure than pain or that it is tending toward that pleasurable advantage), then these actions by which life is maintained are justifiable, and so is the freedom which enables us to perform them: Those who hold that life is valuable, hold, by implication, that men ought

not to be prevented from carrying on life-sustaining activities. In other words, if it is said to be “right” that they should carry them on, then, by permutation, we get the assertion that they “have a right” to carry them on. Clearly the conception of “natural rights” originates in recognition of the truth that if life is justifiable, there must be a justification for the performance of acts essential to its preservation; and, therefore, a justification for

those liberties and claims which make such acts possible. We have not, however, reached the desired ethical warrant as yet, because these conditions are true of the lower creatures as well as of man. “Ethical character,” Spencer contends, “arises only with

the distinction between what the individual may do in carrying on his life-sustaining activities, and what he may not do.”!? The distinction arises as a result of the presence of other men. And men in close proximity are likely to interfere with one another; so, “in the absence of proof that some may do what they will without limit, while others may not, mutual limitation is necessitated. The nonethical form of the right to pursue ends, passes into the ethical form when there is recognized the difference between acts which can be performed without transgressing the limits, and others which cannot be so performed.18 As regards the question of the general conditions of social life, it will be apparent that while the positive element of the natural life to carry on life-sustaining activities originates from the laws of life, the negative

elements

which

proscribes

limitations

and,

hence,

the

ethical constituent, arises from the conditions produced by social aggregation. Social life is prompted by the advantages which men

280

Ellen Frankel Paul

derive from it; the condition of social cooperation, then, is that those

who join together gain as individuals from that union, i.e., that all shall share in the benefits. In order to facilitate our investigation of Spencer's proof of natural rights, I have laid out his argument in a more clearly deductive fashion.

Herbert Spencer's Defense of Natural Rights I. From the “laws oflife,” i.e., physical laws: 1. Animal life involves waste;

2. Waste must be met by repair; 3. Repair implies nutrition. Nutrition presupposes obtainment offood; food cannot be gotten without powers of prehension and usually locomotion; 4. That these powers (prehension and locomotion) may achieve their ends, there must be freedom to move about. If you shut up a mammal in a small space, or tie its limbs together, or take from it

the food it has procured, you eventually, by persistence on one or other of these courses,

cause

its death.

Passing a certain point,

hindrance to the fulfillment of these requirements is fatal. All this holds of higher animals and of men. Such are the conditions of life. II. Is there any ethical warrant to be found for these actions by which life is sustained? No ethical warrant if we adopt philosophical pessimism— that life in general is evil and should be terminated. If we adopt the optimistic claim that life is a value, that life is good (balance of pleasure over pain, or tending towards it), then these actions by which life is maintained are justifiable, and so is the freedom which enables us to perform them. So: 1. Those who hold that life is valuable, hold by implication; 2. That man ought not to be prevented from carrying out lifesustaining activities. If it is said to be “right” that they should carry them on, then, by permutation we get the assertion that they “have aright” to carry them on. Thus—f life is justifiable there must be a justification for the performance of acts essential to its preservation and, therefore, a justification for those liberties and claims which make such acts possible. III. We still need an ethical warrant because these conditions are true for lower animals as well as man. Ethical character arises only with the distinction between what the individual may do in carrying on his life-sustaining activities, and what he may not do.

The Time-Frame Theory

281

. This dictinction arises as a result of the presence of other men. . Men in close proximity are likely to interfere with one another. 3. In absence of proof that some may do what they will without limit, while others may not, mutual limitation is necessitated. 4. The non-ethical form of the right to pursue ends, passes into the ethical form when there is recognized the difference between acts which can be performed without transgressing the limits, and others which cannot be so performed. IV. The conditions of social life—social life is prompted by the advantages which men derive from it; the condition of social co-operation is that those who join together gain as individuals from that union. The conditions for the maintenance of both individual life and social life are the same—the recognition and maintenance of individual rights. 1. The positive element of the natural right to carry on life-sustaining activities originates from the laws of life; 2. The negative element which proscribes limitations, the ethical constituent, arises from the conditions produced by social aggrega_

bo

tion.

:

Now, there are several glaring weaknesses in this argument which must be isolated and rectified before a refined Spencerian deduction can be proposed. 1) The principal difficulty with the argument arises when Spencer comes to the point of transition between statements of fact (that is, the conditions of man’s life) and ethical warrants. He is left in the position of saying nothing stronger than that those who hold life as a value (the optimists or meliorists) hold by implication that life-sustaining activities are justified and ought not to be prevented. But he has not provided us with an argument to show why life is an ultimate value. In other words, as his argument stands

in this incomplete form, it is a matter of individual whim whether one adopts the optimistic or pessimistic position. And, in consequence, his argument would have nothing at all to say to those who adopt the latter position. What is required, then, is an argument to show that life is an ultimate value, independent of whether

men

think it is or not. 2) There is nothing explicitly offered in this argument to distinguish animals and, indeed, plants from human beings, and to demonstrate why the latter have a right to life and the two former do not. 3) The permutation in [II.2] from saying “It is right that I do X” to “I have a right to do X” seems to be little more than a facile verbal play on two meanings of ‘right.’ If ‘good,’ for example, is plugged into the first statement, then the parallelism

282

Ellen Frankel Paul

crumbles. 4) And, finally, the ethical component of the argument enters at step [II] rather than [III], as Spencer claimed, because

point [II.2] definitely makes an “ought” claim. If Spencer's deduction of natural

rights is to be salvaged,

then

these

errors

and

omissions must be rectified. (1) Spencer’s hypothetical statement of life as the ultimate value is unsatisfactory for an ontological defense of natural rights. However, it can be demonstrated that his choice of optimism over pessimism is necessary, rather than contingent upon the whim and temperamental proclivities of individuals. The argument would take the following form: if individual X values anything, he must necessarily value life. Life, then, is the precondition for holding all other values. For person X to say “I value money, but I do not value my life” would be to utter a contradiction. Without life, X can value nothing.!4 Even the suicidal individual, as he values his own death, must value life

until the instant that he terminates it by the selected means. As long as he is an agent, that is, as long as he is alive and not comatose, life

must be his ultimate value. (2) There is nothing in Spencer's argument to distinguish men from beasts and plants, and to determine why men have rights and these entities do not. This problem can be surmounted by two steps. The first would be to place in section [I] of Spencer's argument the following statement: It is a requirement of lifesustaining action that repair involves the acquisition of food; food for humans requires the sacrifice of lower orders of beings. This would be a “condition of life” statement, to employ Spencer's terminology, and would involve no ethical component. It is indisputable that man must

eat something,

whether

plants or animals

is debatable,

in

order to remain alive. The ethical content—that is, what we should eat—would enter at a later stage in the argument. The second move would occur at stage [III] where the fact of the existence of other

men is brought into the argument and the ethical consequences elicited. The claim would have to be made that there is some capacity within man that separates him from the lower forms of existence, e.g., reason, capacity for suffering, ability to laugh, featherless biped, etc. None of these possibilities appear overly promising, for animals can reason and generalize (e.g., the recent experiments in teaching language to monkeys), albeit over a much

The Time-Frame Theory

283

narrower range than can the human mind. What I propose, instead, is the human capacity to recognize the transposition of the argument for my individual right to life (from section II) to a similar right for all beings possessing the same mature. This would eliminate very intelligent apes and dogs from the natural rights framework because they have no demonstrated capacity to recognize that if they have a right to life derived from their “conditions of life,” so does every other creature of their kind. But a human being can make such a transposition. By denying a similar right to life to other human beings of the same nature as mine, I have undercut my own claim to a right to life. Now, what about the case of Ardbankous from the planet Margenfufel who can a) understand the derivation of their individual rights to life, and b) make the transposition and see the claims of other Ardbankous and human beings to their rights to life. Quite apparently, then, they fall under the natural rights nexus and we must not deprive them of their life, liberty, or property no matter how alien or repugnant their physiognomy might be. Objections (3) and (4) will be met by the revised form in which the Spencerian deduction will be advanced. The attempt at an ontological defense of natural rights takes the following form: I. From the “laws of life,” i.e., physical laws: 1. Animal life involves waste. 2. Waste must be met by repair. 3. Repair implies nutrition. Nutrition presupposes the obtainment of food; food cannot be gotten without powers of prehension and, usually, locomotion. 4. It is a fact of reality that food can be obtained only by killing and preying upon other creatures, by the strong or the cunning vanquishing the weak or stupid. 5. That these powers of prehension and locomotion may attain their ends, there must be freedom to move about. Beyond a certain point hindrance to such powers by one creature over another brings about the latter's death. II. The Ethical Component. 1. Life is the ultimate value for each being because it is the precondition for the holding of all other values. Without life no valuation process is possible. 2. Life being the ultimate good for each existent being, each agent, he has a right to seek those life-sustaining means which are requisite to

Ellen Frankel Paul

284

his existence. Hence, a right to life. (To deny this would be to become ensnared in a contradiction—that is to say that life is the ultimate value but it is wrong to attempt to sustain it.) . Life is justifiable (it is the ultimate good for him who has it); hence, there is a justification for the performance of acts essential to its preservation, and consequently, a justification for those liberties which make such acts possible. Hence, a right to liberty. . From the rights to life and liberty (that is, from the essential motility requirements to sustain life, from [I], comes the right to property; i.e., the right to that with which one has a) mixed one’s labor by removing it from a state of nonownership, or b) acquired by means of a voluntary exchange, bequest, gift or inheritance. Without property in that which one has labored to attain, one could not sustain one’s life. Life is the good for any individual and property is a necessary requirement for preserving that good. Ii. Conditions imposed on the individual's pursuit of life-sustaining activities (the rights to life, liberty, and property) imposed on him by the existence of other living entities. 1. From [II] (that life is the good for each existent being) follows the claim that life is a good for all beings. By proving that X has a right to life from X’s nature and the “conditions of life,” one has proved

the same for all beings of the same nature subject to the same conditions. . Only beings who have the type of rational faculty that can enable them to recognize [III.1] have a right to life, liberty and property, because only they have a capacity to uphold the natural rights framework. . Men in close proximity are likely to interfere with one another, therefore, mutual recognition of rights is necessitated. . The fundamental condition of social life (i.e., of men living together) is that individual rights be recognized and maintained.

It is apparent from this argument that men owe nothing to each other from their nature as separate entities except the recognition of the same rights to life, liberty, and property in others as they claim for themselves as a result of their nature and the “conditions of life and

social

life.”

Thus,

there

are

no

“rights

to:”

to

a good

education—to be provided by the labor of others; to a balanced

diet—to be financed by the sacrifice of others; etc. There is, quite

simply, the right to sustain your life by means which do not violate the same rights of others. Locke’s and Spencer's conflation of consent and natural rights

The Time-Frame Theory

285

theory has been shown to be contradictory and the Nozickian formation has proved irrelevant, a new theory of government legitimacy—the time-frame theory—has been advanced, and an attempt has been made to give an ontological defense of natural rights based on the Spencerian argument. NOTES

1. John Locke, The Second Treatise of Government

(Indianpolis: The

Bobbs-Merrill Company, Inc., 1952). 2. Herbert Spencer, “The Great Political Superstitution,” The Man Versus the State (Caldwell, Idaho: The Caxton Printers, Ltd., 1940).

3. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). 4. James Buchanan and Gordon Tullock, The Calculus of Consent (Ann

Arbor: University of Michigan Press, 1962). 5. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books,

1974), Part I.

6. Ibid, Part II. 7. Locke, Ch. XIX.

8. Ibid., Ch. II. OP ibid. Cha itt:

10. Spencer, p. 195. 11. Ibid., pp. 196-97.

12. Ibid., p. 196. 13. Ibid.

14. Jeffrey Paul, “The Ontological Basic of Morality,” an unpublished paper delivered at the 1976 conference of the American Association for the Philosophic Study of Society at Bowling Green State University.

14 How to Derive Libertarian

Rights Eric MACK*

The basis for each person's possessing natural (i.e., non-contractual, non-special) rights against all other persons is the moral truth that for each person his living (his life) well is what is of ultimate value. In the first section of this essay I will work toward a statement of what I shall call “eudaemonistic egoism” and indicate how it provides the basis for natural human rights of the sort advocated by Robert Nozick in Anarchy, State and Utopia. In the second section I will state the argument for eudaemonistic egoism. And in the third section I will defend this argument against likely objections. The central notion of living well will be the main obscure notion in this sketch. It should be unnecessary (but is not) to say that living well involves interaction with and beneficence toward other persons. It may even involve having, psychologically, a direct interest in the well-being of others. To say that each person's ultimate value is his living well is not to say that each person should be some sort of a psychological egotist directly interested only in his own states. But it is to say that nothing can be of positive value to a person if it does not contribute to his living well, to his well-being. 286

How to Derive Libertarian Rights

287

I

Reading in the history of philosophy I find a sustained, though ill-defined, tendency to link the notion of each person’s life being his ultimate value and the notion of individual (natural) human rights. For Locke, persons should not be subordinated to others because

they are not made for one another's purposes. A secularized Locke might say that each person’s life is that person’s purpose. Classical natural rights theory, as in Locke, affirms the propriety of each individual’s pursuit of his own self-preservation and self-interest. Rights sanctify this pursuit by establishing a sphere for each person within which this pursuit is (morally) immune from interference. In more Kantian language, it is because each person has a dignity or value in himself that each person should be treated as an end-inhimself, not as an object at the disposal of other persons. In “Two Concepts of Liberty,” Isaiah Berlin maintains that the view that the individual must not be manipulated even for his own benefitis founded on the view that “. . . there is no value higher than the - individual.”! Often the underlying importance for human rights of this moral individualism is expressed obliquely in terms of the importance of the fact that persons are separate beings one from another. For instance, in Anarchy, State and Utopia? Robert Nozick cites, as the notions and contentions that motivate the natural rights point of view, the “principle that individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent,” and the views that, “To use a person...

does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has,” and “that there are different individuals with separate lives and so no one may be sacrificed for others. . . .” And in characterizing the ideal of negative liberty, Berlin says, To threaten a man with persecution unless he submits to a life in which he exercises no choices of his goals; to block before him every door but one, no matter how noble the prospect upon which it opens, or how benevolent the motives of those who arrange this, is to sin against the truth that he is a

man, a being with a life of his own to live.?

But clearly it cannot be the fact of the separateness of persons or the

288

Eric Mack

fact that each has only his own life that underlies rights. For these, alterable, facts might be seen as calling for a program for unifying all persons into a great social organism and ridding the world of bourgeois talk about individual rights. What underlies rights must, at least in part, be the value, desirability, or rightness of persons being separate beings, each having his own life and living it. One could only sin against a person's being a being with a life of his own to live if his having and living his own life is what ought to be. It seems that the only thing which could constitute a ground for each person’s having (natural) rights is the value or rightness of each person’s separate individual life and well-being. Why will nothing else serve? If the reason B has for not inflicting some treatment t on A is the incongruity of that treatment with some goal of B’s or some goal common to B and A, then the objection to t is its ineffectiveness. But ineffectiveness of effort (or misdirection of resources) is not the sort of objection made in claiming that B’s doing t would violate A’s rights. Rights-correlative obligations are, to use Nozick’s phrase, moral side-constraints. They are claims against action which are independent of the effectiveness of those actions in generating consequences that are either desirable for the agent or desirable for some group which includes the agent and the subject of his actions. Perhaps, alternatively, rights exist without being grounded in anything. There simply are these deontic claims which are accessible to the morally insightful. I take it, however, that any coherent account of rights will be preferable to this non-account. Another possibility is that rights rest essentially on formal considerations, e.g., persons (perhaps inevitably) make certain claims for themselves and are, thereby, committed by generalization to acknowledging like claims on behalf of others. This sort of account, however, does not touch on what is crucial, viz., the rationality of the initial claim. If I claim that

there is a dog on my roof, then I would be irrational not to acknowledge also that there is a mammal on my roof. But to note this is not to establish the rationality of my believing that there is a mammal on my roof. Nor would the rationality of this belief be established if we also knew that I could not but affirm that there was a dog on my roof. We are left with the hypothesis that if there are certain (deontic) moral side-constraints on how individuals may be treated, these must flow from or be based upon the value of rightness of each person’s separate lives and well-beings.

How to Derive Libertarian Rights

289

Of course we have not yet said how its being the case that the ultimate value for each person is his living well grounds rights. What difference could this make to B in his moral relationship to A? What is the connection, if any, between each person’s being an end-in-himself in the sense that his well-being is the ultimate value for him and each person’s being an end-in-himself in the sense ofnot being a (morally permissible) means to others’ goals? What is the connection, if any, between the rightness of rational self-interested

pursuits and the possession of rights? What is the connection, if any, between there being no value higher than the individual and the moral demand that individuals not be subordinated? Here is where the speculation comes in. The character of the claims of the right-holder is well-expressed by means of the notions of treating a person as a means, using a person, and (in contrast) treating a person as an end-in-himself. Yet how can we explicate claims such as, “a person is not to be used,” so as to arrive at something more interesting than, “a person ought not to be treated in ways in which a person ought not to be treated?” We can make sense of talk about misusing persons if for each person there is some “objective” proper end, an end the satisfaction of which constitutes the “objective” proper function of his life, activities, capacities, faculties, etc. Only if there is such an end can particular employments

of a person,

his life, activities, capacities,

faculties, etc. constitute objective misuses. Since the “objective” proper end of a thing is that the attainment of which constitutes successful use of that thing, the view that living well is success in life

and action (is successful use of one’s life) provides us with a claim about the “objective” proper end for each person, viz., that the “objective” proper end of each person’s life is his living well. The proper function of his activities, capacities, faculties, etc. is to be

utilized in his living well. Furthermore, if we are to be explicating rights claims, the end specified as “objective” and proper for any person, say A, must not be (numerically) identical with the end specified as “objective” and proper for any other individual, say B. For if it were identical, then,

e.g., all failures of B to employ A, A’s activities, A’s capacities, etc., in accord with their specified end would be instrumental failures—failures (on B’s part) to utilize A, A’s activities, etc. effectively for B’s (proper) goal. If A’s “objective” proper end were

290

Eric Mack

identical with B’s, then the objections A could relevantly bring against B’s utilizations of A, his activities, etc. would be objections to the effectiveness of these utilizations. But the wrong done in misusing a person, the wrong objected to in standing on one’s rights, is not merely an instrumental error. On the view that for each person his living well is his “objective” proper end, each person’s proper end is (numerically) distinct. Thus, we can avoid the implication that, e.g., when B fails to treat A in accord with A’s “objective” proper end, when B misuses A, B merely commits an instrumental error. Still, just how does the claim that the “objective” proper function of each person’s activities, etc., is to be utilized in that person’s living well play a role in, e.g., certain treatments of A by B being deontically unjustified? I construe well-being as an active, ongoing process. Self-directedness or autonomy is an essential aspect of living well. Unless a person’s activity is his own it will not contribute to or be constitutive of his living well (or his living well). A person whose activities are not his own does not live successfully. How can the centrality of the autonomy of A in A’s living well be the ground of A’s rights against others? If B personally values A’s autonomy and respects it only on this basis, then B’s respect for it is merely instrumental and not a matter of recognizing a moral side-constraint on his actions. Similarly, if B disinterestedly commits himself to maximizing autonomy in the world and his only basis for respecting A’s autonomy is that in doing so he furthers this utilitarianism of autonomy, then B is not recognizing a right of A’s. Rather, the centrality of autonomy, as a property necessary to any activity’s being constitutive ofliving well, allows us to be more specific about the (proper) function of a person’s activity, capacities, etc. It is the (proper) function of a person’s activities, capacities, etc. to be employed by that person in (toward the end of) his living well. The function of aperson’s activities, etc. is individualized not only with regard to whose well-being it is the end of the activity (capacity, etc.) to serve but also with regard to who must employ the activity (capacity, ete.) for it to fulfill its function. The activity (capacities, etc.) of A must be employed by A if it is to fulfill its function of contributing to the active, ongoing, process of A’s living well. (And A’s activities, capacities, ete. have no “higher” end.) A person misuses his own life, capacities, ete. when he employs them in ways that do not contribute to his active well-being. Here

How to Derive Libertarian Rights

291

only certain specific uses will constitute misuses. But any use of A, his capacities, ete. by another (which use prevents A from using himself, his capacities, etc.) is a misuse. While to use oneself is not

as such to misuse oneself, to use another is to misuse him. Any action which prevents a person from utilizing his life, capacities, etc. misuses that person. At least when done intentionally, such prevention

treats

a person

as a means,

as a resource

at another

party's disposal, as an entity without a proper end of its own. The moral propriety of B’s employment of his activities, capacities and so on is to be determined by whether these utilizations accord with the function of these activities, capacities and so on. Similarly, the moral propriety of B’s employment of A’s activities, capacities, and so on is to be determined by whether these utilizations accord with the function of these activities, capacities and so on.

So the

same proposition which a person must invoke (and which it is rational for him to invoke) to justify his pursuit of his own well-being in contrast, say, to his pursuit of the greatest good for the greatest number, viz., that the function of each person’s activity, capacities, and so on is to be employed by that person in his living well, shows that a person would be unjustified in bringing it about that another's activity is not directed by that other person. Two types of consideration—both based on what I have called eudaemonistic egoism—can play a role in determining the justification of B’s action. There is the consideration of whether B employs his actions in accord with their proper end and there is the consideration of whether B prevents A’s activity, capacities, and so on from being employed in accord with their proper end. If B’s action is unjustified on the basis of the latter consideration, it is unjustified on the basis of the charac-

ter of his treatment of A and not on the basis of the effectiveness with which his (proper) goals are pursued. Such action would be deontically unjustified and A has a claim against such action in virtue of his being a moral end-in-himself. A similar claim can be made on behalf of (at least) each human person. And for each of them this claim constitutes a natural (non-special) human right. II

But can the eudaemonistic egoism which underlies natural rights and obligations itself be made plausible? Providing an underlying rationale for this ethical egoism involves nothing less than the

Eric Mack

292 derivation of a fundamental

premises.

normative

claim from non-normative

What follows in this section is the outline of such an

argument.

Prop. I.

If there is some need or requirement which explains (plays a role in explaining) the existence of some thing (object, activity, process, etc.), then that thing func-

Glossuls

tions well if and only if its use or enactment satisfies the need or requirement which explains the existence of that thing. The nature of the function of some thing can be determined by the requirement which accounts for the existence of that thing. The requirement accounts for the existence of some thing when the existence of that thing is necessary to the satisfaction of the requirement. Tools are, for instance, required for cer-

Prop. II.

Gloss II.

Theorem I.

tain human goals, and their value as this or that particular type of tool is determined by how well their use satisfies the respective goals for which they are designed. A heart beats well if it satisfies the requirement, namely the need of the cells for nutrients and oxygen, which necessitates (and thereby explains) the existence of the heart. With respect to each living thing, it is the fact that remaining in existence as a living thing (not merely as a collection of dead cells) requires the successful completion of numerous processes that explains the existence of valuation. Valuation is the process of pursuing and maintaining goals. This is a process that exists within a living entity just in virtue of its being a living thing, i.e., just in virtue of it facing alternatives, being faced with alternatives. That there are objects of value for any given living entity is necessitated (not merely made possible) by the fact of that entity’s living existence. The requirement which explains valuation is the requirement of acting successfully in order to remain a living thing. Valuation functions well if and only if its use or enactment satisfies the requirement of the valuing

How to Derive Libertarian Rights

2h

Te Sih, Th. IV.

Th. V.

Th. VI.

Prop. III.

Gloss III.

293

organism to complete processes successfully if it is to remain a living thing. (from Prop. I and II) Valuation is a process that is carried on by living things; it is goal-directed action. (from Prop. II, cf. Gloss I) The functioning of valuation is the performance of goal-directed actions. (from Th. II) Goal-directed actions are performed well if they satisfy the requirement for, the need of, acting successfully in order to remain a living thing. The standard for goal-directed actions is the satisfaction of this need. (from Th. I and III) The satisfaction of this need is good with respect to the acting organism. (from Th. IV) That is, the result of valuation functioning well with respect to any living entity is simply that which is good for that entity. This is obvious by the very meaning of the concept valuationfunctioning well. Performing successfully the actions that sustain its life is that which is good with respect to any given organism. (from Th. IV and V) If astandard for goal-directed action is complied with as a result of choices made by the acting entity, then the (normally) resulting good is a moral good, and the actions (specifically the choices) of the agent are morally good. Under these conditions the agent is responsible for his actions and their (normal) consequences. Similarly, if the standard is not complied with, and this

Prop. IV.

Th. VII.

non-compliance is the result of choices, then the (normally) resulting bad is moral evil and the actions of the agent are morally deficient. Whether or not this standard (or any alleged standard) for goal-directed actions is complied with is a matter of choice for human beings. For human beings, that which is good in the sense of theorem IV is morally good. That which is bad in the sense of theorem IV is morally deficient. (from Prop. III and IV)

294

Th. VIII.

Eric Mack

The morally good, with respect to each human being, is the successful performance,

and the results of the

successful performance, of those actions that sustain his existence as a living thing. (from Th. VI and VII) Iil

Obviously the key premises in this argument are Proposition I and Proposition II. Now Proposition I itself follows from two prior propositions. The first is: Anything which in functioning satisfies its (or its users) goal is functioning well. This is surely acceptable simply on the basis of the meanings of the terms. Note that we have not yet specified how the function of a thing is determined. This is done by the second premise, namely: The function of a thing is its use or enactment in regard to the satisfaction of the requirement which explains the existence of that thing, if there is such a requirement. This premise has been briefly explained and illustrated in Gloss I. This is the crucial claim in two senses. First, it defines function in such a way that there can be functions which are objective features of things, features that cannot be changed merely by some alteration in persons’ attitudes or intentions. The existence of such a function is independent of persons’ actions, hopes, wants, etc. This independence is what allows us to make claims about things satisfying their objective functions well and, thus, being objectively good things. In effect, this second premise for Proposition I introduces something like a doctrine of natural ends. This position might be expressed as the view that the natural end of a man’s valuation is the sustenance of his life. But “natural end” here does not mean “actual end” or “likely end.” Rather, “natural end of aman’s valuation” means “the end of the objective function of a man’s valuation.” In summary form, the view is that the end of the objective function of a man’s valuation is the sustenance of his life. The second sense in which the definition of function is crucial is that it is just at this point that an apparently strong objection to the argument as a whole can be raised. There are really two related objections that are possible here. Both are based upon the notion that functions of things are determined by the use to which they are put. In what I shall call the moderate version of the objection it is

How to Derive Libertarian Rights

295

not explicitly denied that a thing may have an objective function in the sense of Proposition I, but it is asserted that things do have functions in virtue of the use to which they are put. At least some of the functions of athing are determined by the present goal(s) of the user(s) of it. For instance, someone might use a heart for the sake of keeping time. To the extent that this goal is satisfied the heart would be functioning well. For this heart, the keeping of time becomes a standard of value. Similarly, it might be argued that valuation can be used to satisfy goals other than the goal or need which explains the existence of valuation. For instance, someone might employ valuation for the sake of slowly and painfully killing himself. Could one not then say that for this peculiar individual a function of valuation was

the production

of slow and painful death,

and thus acts of

valuation that satisfy this function are good acts? It seems that one could. Thus, for this individual, good acts include acts that bring painful death, not the sustenance of life. Hence any doctrine which asserts that for each man the good acts are those that sustain his. life must be false. In short, this objection states that if one accepts both the claim that anything which in functioning satisfies its (or its users) goal is functioning well and the claim that things do have functions in virtue of the use to which they are put, then one cannot also, consequently, accept ethical egoism. This statement is mistaken. The argument in support of it, the argument of the advocate of the moderate objection, fails to distinguish different senses in which things may have functions and thereby be good or bad things. Certainly a heart may be used as a time-keeper, as a musical instrument, and or as an example of a certain type of muscle tissue. On the basis ofits time-keeping, its use as a musical instrument, ete. we may well make judgments about the heart. Yet in each of these cases we judge how well the heart functions as a time-keeper, as a musical instrument, as an example. There is no inconsistency in asserting that the heart is good as an example of a type of muscle tissue but bad as a musical instrument. In general, in virtue of uses

any X may have a function as a Y. The X may be judged good or bad as a Y or as an X-functioning-as-a-Y. The X may also have a function as a Z and be judged good or bad as a Z or as a X-functioning-as-a-Z. Yet there is no ground for inconsistency here. Similarly, X may have a function as a Y, be judged good or bad as a Y or as an Xfunctioning-as-a-Y, yet this entails nothing about how good or bad X

296

Eric Mack

(or X-as-an-X) is. The issue of how good a YX is, or how good an X-functioning-as-a-YX is, is completely unrelated to the issue of how good X is. To return to the familiar example, whether a heart is good or bad as a clock, or whether a heart is good or bad as a heartfunctioning-as-a-clock, is completely unrelated to whether the heart is a good heart. The fact that a heart can have functions other than its objective function qua heart, functions in addition to the function it is determined to have on the basis of what need explains its existence, in no way interfers with our judging the value of the heart qua heart solely in terms of this objective function. Insofar as we judge the heart qua heart, not the heart merely as a time-keeper or as a musical instrument, we judge it solely on the basis of how well it satisfies the requirement which explains its existence. That is, we judge it qua heart solely on the basis of how well it supplies the cells with nutrients and oxygen. Similarly, it may be that valuation may function well as a means to a slow and painful death. But this does not mean that valuation qua valuation is good insofar as it produces (for the agent) slow and painful death. Considering the valuation in question qua its suicide producing role, it may be judged good—but merely in the sense that it is effective in its current role as a suicide producing process. We may judge the valuation-as-suicide-producing-process good, but this is completely unrelated to any judgment about the individual’s valuation itself. The judgment on the suicide producing process is completely unrelated to any judgment about the individual’s valuation as valuation. The judgment of what is good valuation for any given individual is made on the basis of the objective function of valuation. That is, the judgment is made on the basis of how well the valuation satisfies the need which explains its existence. Thus, it is perfectly consistent to assert that only valuation that sustains life is good valuation and that some acts of valuation are to be judged good as means toward slow and painful death, if the agent seeks this end, and by his actions, attains it. There is no inconsistency between ethical egoism and the fact that some of the functions of things can be determined by the use to which those things are put. With the moderate objection out of the way, we are now in a position to consider what I shall call the extreme objection. In this objection to Proposition I, it is maintained that the functions of things are determined solely by their actual uses or goals. In other

How to Derive Libertarian Rights

297

words, there are no objective functions. If there is no objective function of valuation, then all valuation is simply valuation for the sake of so-and-so current ends. Acts can be evaluated only in terms of how well they satisfy the actual aims of the acting individual (individual relativism), or how well they produce the results which

are endorsed by some type of consensus (some type of cultural relativism). In either case there are no objective standards, only subjective and relative ones. The first thing to notice is that the view that functions are determined by present use cannot be strictly maintained. A man does not use his heart well or poorly in order to supply nutrients and oxygen to the cells of his body. Does this mean that (assuming no time-keeping use, etc.) the heart has no function? Of course not. Any goal-directed process, or object which carries out such a process,

has some

function.

The critic, then, must formulate

his

objection in this way, “Certainly the function of hearts is to supply nutrients and oxygen, even though the heart is not used for this end. But the heart has this function solely because this is the current, actual, goal of its activity, not because this goal explains its existence. This implies that the heart might just as well have some other goal, anda fortiori, some other function. Thus, there is no objective function of hearts, and similarly for all other things.” The reply to this is that a heart could not just as well act toward some other goal—though it is certainly possible for it to act toward some other goal. That is, in replying to the extreme objection we must distinguish between a goal in the sense of that which will comply with some standard and a goal in the sense of an actual current aim. Now, of course, the advocate of the extreme objection

denies the validity of this distinction. This is just the point at issue. And so our criticism of the extreme objection takes, for the moment, the form of emphasizing the plausibility of this distinction and, at the same time, elaborating upon the rationale for Proposition I. Certain objects and activities, by their very nature, do seem

to

have, respectively, certain objective functions—or so to speak natural ends. Consider again the heart example. Hearts do not acquire the goal (and thereby the function) of supplying nutrients and oxygen to the cells. They simply have this function, and it is part of our understanding of the notion heart that we recognize this function. However to say this is not equivalent to saying that the

298

Eric Mack

satisfaction of this function is that toward which (or even among those things toward which) the heart is always directed. The possession of a certain objective function by some thing is perfectly consistent with the actual current goal of that thing being something other than the fulfillment of that function. This is a little difficult to see in the heart example. For we may be inclined to say that something is not an actual heart (though it may be a dissection specimen) unless it be directed toward supplying nutrients and oxygen. In other words, it seems that all cases of bad hearts (not fulfilling their function) would be cases where the current goal is the supplying of nutrients and oxygen but the heart does not effectively pursue this end. Thus, it might seem that we can, at most, talk about the objective function of an X when being directed toward the fulfillment of that function is a necessary condition for being an X. If this were

so, then all replies to the extreme

objection would be

irrelevant to the defense of ethical egoism. For the cases of valuation that the egoist wishes to morally condemn are essentially those where the valuation is (according to the egoist) misdirected, not merely ineffective. For the egoist’s argument to work it must be possible that a thing function poorly not merely by being ineffective, but also by not being directed toward the fulfillment ofits objective function. Fortunately, even a heart can malfunction in the sense of being misdirected. Consider the case of a Yogi who is able to will the cessation of the supplying of nutrients and oxygen to his body’s cells. Certainly we ought not to say that to the extent that he so wills he ceases to have a heart. Rather, during these moments, qua heart, his heart is not functioning well (though as a device to help induce certain peculiar mental states it may be functioning well). Note that it is the extension of choice to the determination of the current goal of the heart that makes it possible for the heart to function poorly in the sense of being misdirected. Now let us consider an activity the current goals of which are normally determinable by choice. It is typically within the power of medical practitioners to choose what will be the actual current goals of their medical activities. Hence we ought to expect that there will be some variation in their respective goals. But this does not show that the function of medical acts varies from act to act. These acts gua medical acts do not acquire functions. Rather, in virtue of being medical acts, they have a specific

How to Derive Libertarian Rights

299

function—namely, producing and/or sustaining health. Medical activity has this function not in the sense of its fulfillment being the actual goal of that activity, but rather in the sense that the standard for evaluating this activity as medical activity is the production and/or sustenance of health. Certain acts are simply medical acts and as such there exists a standard for judging them. This standard is not affected by how many medical maniacs there are. That is, it is

not affected by what percentage of the white-robed, medical school-graduated, instrument-bearing and/or drug-prescribing persons are guided by diabolical schemes leading to the destruction of health. It is possible for every medical practitioner to be practicing bad medicine not simply in the sense of unsuccessfully aiming to satisfy health needs, but in the sense of not having that aim at all. If the standard for, and the function of, medical practice are not

determined by the actual goals of medical practitioners, then by what are they determined? There must be some need the satisfaction of which is inseparable from medical activity in the sense that an understanding of medical activity involves an understanding that good medical activity must satisfy this need—though the actual satisfaction of this need may not be what medical activity is actually seeking. A comparable need must exist with respect to hearts, and with respect to any thing which can function poorly by being misdirected. For both hearts and medical activity there is some need or requirement for the satisfaction of which the respective existence of hearts and medical activity is necessary. There is the need that cells be supplied with nutrients and oxygen, and there is the cluster of requirements for the production and sustenance of health. These needs give rise to hearts and medical activity. One could not understand either of these phenomena without reference to their generating needs. These needs explain (necessarily play a role in explaining) the means (hearts and medical activity) to the respective satisfaction of these needs. And in both cases we see that, being necessitated by a certain need, the satisfaction of that need is the function of, and sets the standard for, evaluating that object or activity. This correlation of necessitating need on the one hand, and function and standard on the other hand, is just the way the world is. Proposition II tells us that we can apply this truth to the phenomenon of valuation. It may be best, at this point, to take note of certain problems that

300

Eric Mack

will be encountered by the advocate of the extreme Proposition I. No doubt the advocate of this objection distinguish between the function of X and the function For he certainly wants to be able to speak of hearts whether or not they satisfy their simultaneous use

objection to will want to of X-as-a-Y. being good as musical

instruments, clocks, etc. Yet he cannot draw this distinction on the

basis of the objective function versus merely supplementary use. The advocate of the extreme objection must insist that the correct interpretation of the phrase, “the function of X” (or “the function of X as an X) is “the typical purpose or role of Xs.”> If there is no statistically normal role (as in the case of valuation), then no sense at all can be given to the phrase “objective function.” But from this insistence, the advocate of the extreme objection is lead to one of two equally peculiar positions. If he accepts (as he is unlikely to do) the view that having the normal role of an X is a necessary condition of being an X, then he must accept that there is no such thing as an X functioning as a Y where functioning as a Y is inconsistent with having the normal role. That is, he would be committed to the view that the Yogi's heart cannot be a heart—at least not during the times that it assumes its unusual role. The advocate of the extreme objection may even be committed to the even odder view that if all but one heart takes the Yogi role, then the remaining entity ceases to be a heart. However, what the advocate of this objection is more likely to say is that having the typical role of an X is not a necessary condition of being an X. But satisfying the typical role is a condition for being a good X. Xs that do not play the typical role will be poor Xs. But suppose that the typical role of a certain type of thing changes. For instance, suppose that medical activity comes to be typically aimed at instilling disease. At the point that this goal becomes the typical goal medical activity that does instill disease becomes good medical activity and medical activity that prevents disease becomes poor medical activity. If there is a return to earlier aims, evaluations must again be reversed. Two instances of medical practice may be qualitatively identical and differ only in date of occurrence, yet one could be good and the other bad. Or it might be suggested that “typical” not be interpreted as “typical at this time,” but rather as “typical of all acts of this type—past, present, and future.” However then one would have to say, “It seems to me that this health-saving medical act was a good medical act, but I cannot

How to Derive Libertarian Rights

301

be sure for I do not know how medical practitioners will act in the future.” Of course none of these consequences will seem terribly troublesome to someone who holds to medical relativism. But who could hold to such a view? For medical relativism is not the view that the moral value of health is a non-objective value, it is the view that health is not an objective medical value. Medical relativism holds that medical activity that produces health is not objectively better as medical activity than medical activity that fails to promote health. This view, I submit, is simply false to the facts. Thus, we can

see that, through his insistence that “the function of X” means merely “the typical role of Xs,” the advocate of the extreme objection against Proposition I is led to one or another of two untenable positions. Either hearts disappear as Yogis increase or healthdestroying medical activities become medically good as medical maniacs increase.

I have considered what I take to be the two fundamental objections that might be raised against Proposition I and have found them wanting. In the process I have attempted to display the plausibility of this premise of the egoist’s argument. Given Proposition I we can formulate the argument for ethical egoism as I have done in Part I of this discussion. We have there a formulation in which the normative conclusion follows quite strictly and soundly from the nonnormative

premises.

Furthermore

the

resulting

eudaemonistic

egoism is expressive of the value and importance of individuals and their separate lives—a value and importance which underlies individual human rights. NOTES

*This essay partially reproduces material from two previously published essays “Egoism and Rights Revisited,” The Personalist, July 1977 and “How to Derive Ethical Egoism,” The Personalist, Autumn

1971.

1. Isiah Berlin, Four Essays on Liberty (London:

Oxford University

Press, 1969), p. 137.

2. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books,

1974), p. 30f. 3. 4. him 5.

Berlin, p. 127. Emphasis added. To fail to provide a person with an opportunity to sos is not to prevent from doing s even if he will not otherwise have an opportunity to do s. If the advocate of the extreme objection interpreted “the function of

302

Eric Mack

X” in terms of what was typical for this or that individual rather than what was typical throughout a group of individuals fundamentally the same objections would apply, in addition, this interpretation would mean that one could not say of some X, “It is functioning well as X” until one had extensively investigated its particular history.

IV Social Justice: Entitlement Theory Versus Distributivism

a Maal

TS

,

5

wnt 9

i Wreks nh

a

nae els

vent ‘

“Ws

gre

te 49

ratty bo =

Sacee

iat “patent Inin0e — FE pth (food ft eons in| snetontucientaidl eens —~ 7

-

bg

ae

y=

~.

i

=

aa

Ne tine

7

>

:

—

_-& =

= —

>

-

15 Nozick s Entitlements ONORA O'NEILL

This essay examines Nozick’s claim to have shown that a commitment acceptance of full capitalist property argument is that he fails to show how

(in Anarchy, State and to individual liberties rights. The main gap in individuals can become

Utopia) requires Nozick’s entitled to full control over previously unheld resources. Nozick draws on Locke’s view that title is acquired by ‘mixing one’s labour’. But he excises certain (dubious) premisses on which Locke’s theory relies and provides no alternative grounds for thinking that the labourer is entitled to full control over his product.

INTRODUCTION! In Anarchy, State and Utopia? Robert Nozick revives, clarifies and

in many ways strengthens Locke’s defence of individual property rights. Like Locke he eschews utilitarian arguments in favour of individual property rights and starts from the position that individuals have certain basic (natural) rights and duties, in particular the rights not to be harmed in life, health, and liberty. If his argument is successful, Nozick will have shown that it follows from these basic

rights that unlimited liberty will shown that

individuals may justly acquire complete control over resources without needing the consent of all whose be restricted by these property rights. He will also have other proposed principles of distributive justice cannot 305

306

Onora O'Neill

be grounded on a commitment to individual rights. If the Lockean argument can be made convincing we face a clear dilemma: either we cannot be fully committed to individual (basic) rights, or we must accept that it is unjust to limit or in any way to regulate the holdings of individuals. The dilemma is not trivial. Justice, in Nozick’s view,

precludes any restriction of individual property rights, and so is not merely compatible with but requires a capitalist economic order. I shall accept Nozick’s starting point here, but query his conclusions. I start therefore by assuming that individuals have at least the rights not to be harmed

in life, health, or liberty, but that their

property rights—rights to control resources—have yet to be established. I also accept that Nozick has shown that a minimal state can (though undoubtedly it did not) arise without violation of individual basic rights, but that extensions of state activity beyond enforcing the law against harms and threatened harms to life, health and liberty have not been established. THEORIES

OF DISTRIBUTIVE

JUSTICE

Nozick starts his argument in favour of a Lockean principle of distributive justice by considering rival theories and their defects. He classifies theories of distributive justice so that whole ranges of theories can be levelled with one objection. Theories of distributive justice can be divided in two ways. They can be patterned or unpatterned, and they can be historical or unhistorical. Patterned theories of distributive justice require that resources should be distributed “along with some natural dimension, weighted sum of natural dimensions or lexicographic ordering of natural dimensions’ (p. 156). When a distribution is patterned there is some dimension such that each individual's ranking on that dimension corresponds to the ranking of his share of resources. Patterned principles of distribution are historical if they distribute on a dimension which summarizes past actions (e.g. moral merit or hours worked); they are unhistorical if they distribute on a dimension which does not refer to past actions (e.g. I.Q. or race). The most celebrated patterned principles of distributive justice include ‘to each according to his merit’, ‘to each according to his need’, and ‘to each according to his contribution’. Unpatterned principles ofdistributive justice do not assign shares

Nozick’s Entitlements

307

of resources in proportion to individuals’ ranking on some dimension. Such principles may also be either historical or unhistorical. Principles of distribution which are neither historical nor patterned specify the structure or profile of just distributions, but do not assign particular individuals to particular positions within these distributions. Nozick calls such principles ‘current time-slice principles’ or ‘end-result principles’ (p. 154). End-result principles may vary greatly in strength. A principle which states that no distribution is just in which the average income of the top quintile is more than four times the average of the bottom quintile is exemplified by an enormous range of distributions. A utilitarian principle which holds only those distributions just which maximize utility can be exemplified by more than one distribution. A strictly egalitarian principle requiring the same amount for each person is met only by distributions in which the size of each individual’s share is determined, and

so is not only an end-result principle but incidentally patterned. It determines not only the profile of distributions but the size of individual shares for’any given total of resources, so is extensionally equivalent to a patterned principle requiring distribution in proportion to individuals’ (equal) humanity. This continuity is revealing. End-result principles and patterned principles differ in that the former usually do not determine the size of individuals’ shares, and the latter do. But their similarity is more important. Both are principles for determining the (relative) size of shares. Neither sort of principle is concerned with the composition of individuals’

shares,

but only with

their size.

Neither

sort of

principle can regard confiscation-with-replacement as unjust since they determine only how much people should have, and not which things they should have. Nozick’s theory of just distribution, the entitlement theory, is neither an end-result nor a patterned theory. It is unpatterned and historical. It specifies just distribution not by giving a rule for the size of individual shares, nor by stating a mandatory profile or range of profiles for the pattern made by the sizes of individual shares, but by listing procedures by which individuals may justly acquire title to particular resources. Hence the name, ‘entitlement theory’. According to entitlement theory the size of just holdings is always determinate, but this does not determine the holdings’ justice, which depends solely on the methods by which an individual

308

Onora O'Neill

acquires holdings. Nozick therefore calls entitlement theory an historical principle of justice, in that it too holds that ‘past circumstances or actions of people can create differential entitlements (p. 155). But it is an historical principle of justice in a very different sense from that in which certain patterned principles are historical. For it requires not that the size of shares be proportioned to past action, but that particular items be acquired by particular procedures. According to entitlement theory ‘an injustice can be worked by moving from one distribution to another structurally identical one (p. 155). This statement is too weak. Entitlement can also be disregarded by changing the composition of individual holdings without altering their size. What is distinctive about entitlement theory is that it connects individuals with particular holdings acquired by particular procedures.

NOZICK §ARGUMENT

AGAINST

REDISTRIBUTIVE

THEORIES

Nozick advances a single argument to counter end-result and patterned principles of distributive justice. The argument leans heavily on one attractive and distracting example. Suppose some distribution of holdings which is just either according to a pattern or according to an end-result theory of distribution. Then transfers are made, for example, premium payments to Wilt Chamberlain by thousands of basketball fans who want to watch him play. The result is a new distribution, distinct from the first, which may not conform to the pattern or end-result in terms of which the first distribution was justified. More generally, any favored pattern would be transformed into one unfavored by the principle, by people choosing to act in various ways ... to maintain a pattern one must continually interfere to stop people from transferring resources as they wish to. (p. 163)

So also to maintain a desired end-result. Yet intuitively there seems to be nothing very wrong about premium payments to Wilt Chamberlain. But this will hardly do as an argument against patterned and end-state principles ofjustice or for entitlement theory. The argu-

Nozick’s Entitlements ment

presupposes,

so does

not demonstrate,

309 that it is wrong

to

interfere to restore disturbed patterns or end-states, and that such restorations are always redistributive and violate individuals’ property rights. But it is just these property rights which have yet to be established. All the theories of distributive justice Nozick classifies assign individuals some sorts of property rights—some claim to exercise some control over some resources. They differ in the extent of these rights. For example, theories which hold that patternrestoring interference by the state maintains rather than violates the rights of individuals regard property rights as limited in certain ways—perhaps by an upper limit on individual holdings, or on what individuals may do with what they hold, or on how or to whom they may transfer it. Nozick comments at one point that we lack a theory of property (p. 171). We do indeed, but the lack cannot warrant the assumption (cf. pp. 281-2) that individual property rights are rights to control resources in all ways, to dispose of them however and to

whomever the owner wishes, or to accumulate them without limit. This interpretation of property rights must be established before the restoration of patterns or end-states by state action can be rejected as unjustified interference which violates individuals’ rights. Nozick is quite right when he points out that ‘socialist society would have to forbid capitalist acts between consenting adults’ (p. 163). So it would; but this restriction of liberty might be compatible with or required by justice if the property rights of individuals are less than full capitalist property rights, i.e. are not rights to control any amount of material resources in all ways, subject only to the condition of not violating others’ basic rights not to be harmed in life, health, or liberty. Until Nozick provides an argument to show that property rights must be full capitalist property rights the Wilt Chamberlain example shows nothing. We can infer little from an intuition that there is nothing very wrong about making premium payments to Chamberlain, particularly when other intuitions suggest nothing very wrong in a bit of pattern-restoring redistribution by the method of taxing Chamberlain’s now enlarged earnings. And even if Nozick had shown such restoration of patterns unjust, he would not have shown

that it must involve unpredictable state depredations of individuals’ holdings. It can be done by familiar devices such as income tax and welfare payments, and can allow many (though not all) capitalist acts

310

Onora O'Neill

to continue untrammelled. Nozick suggests that restoration requires individuals’ actions and choices’ (p. (whether or not it is just) falls short

therefore exaggerates when he ‘continuous interference with 166). The restoration of patterns of continuous interference.

ENTITLEMENT

THEORY

If Nozick’s refutation of patterned and end-result theories ofjustice is inconclusive, then entitlement theory must be judged on the arguments presented for it without the support of finding itself the only contender in a vanquished field. Nozick presents an inductive definition of entitlement theory: (p. 151) (1) A person who acquires a holding in accordance with the principle justice in acquisition is entitled to that holding. (2) A person who acquires a holding in accordance with the principle justice in transfer, from someone entitled to the holding, is entitled the holding. (3) No one is entitled to a holding except by (repeated) applications of and (2).

of

of to (1)

As it stands this definition is extremely general. It can be applied only when the two further principles mentioned—the principles of just acquisition and just transfer—are specified. To these a third, a principle of rectification, would have to be added if we were to know what should be done about breaches of the first two principles. If we are to assess entitlement theory then we should look for precise formulations of at least the first two principles and arguments in favour of these particular formulations. Amazingly, Nozick writes ‘I shall not attempt that task here’ (p. 153). However, there is more to be said, since Nozick relents and sketches a principle of just acquisition.

I shall now consider this sketch and the possibilities of making it more detailed. I fail to give the same consideration to the principle of just transfer not because it is unproblematic,4 but because it is less fundamental. If there are no entitlements no problem arises about transferring them. If Nozick is to justify a principle of just acquisition which will show patterned and end-result principles of just distribution untenable, he must both show that property rights

Nozick’s Entitlements

Odd

must be full capitalist property rights and explain how particular individuals acquire such title to particular resources.

JUST ACQUISITION Just transfers lead to just acquisitions only when the previous holdings were just. Without a principle of just acquisition entitlement theory can view holdings only as conditionally just. Hence the importance of the principle of just acquisition. Nozick’s principle is Lockean: title is acquired by mixing labour with unowned objects, provided that ‘enough and as good is left for others. This principle has a long history, and seems to have the advantage of a certain nonarbitrariness over other principles of just acquisition. Although it would be difficult to give reasons for thinking that the holdings ofa specific date—say 1900, or, if you like, 1500—were just, it is worth considering what would be lost by formulating such a principle of justice in acquisition: (1) A person who has held a holding since 1900 is entitled to that holding.

The arbitrariness of the date is perhaps compensated for by the ascertainability of holdings at that date. Nozick even provides an argument for thinking that such arbitrariness might be laundered out over the years: _ it is held that the operation of the system over time washes out any significant effects from the initial set of holdings. As an example of the latter, if almost anyone would have bought a car from Henry Ford, the supposition that it was an arbitrary matter who held the money then (and so

bought) would not place Henry Ford’s earnings under a cloud. (p. 158)

But this is too quick. IfA and others would buy from C, but only A has the resources to do so, andA has no just title to these resources, then when A buys an x, A’s holding of x is still not just (it was acquired with ill-gotten funds) and equally C’s holding of A’s payment is just only if C had title to the x he sold. Henry Ford's holdings after sales will be tainted if his holdings of the means of production of Ford motor cars was tainted; his customers’ holding of their cars will be tainted if the purchase money was tainted. Lack of

ANY

Onora O'Neill

entitlement is not generally transferred in sales, but transfers do nothing to reduce the total of unjust holdings. Entitlement theory cannot avoid the liabilities of being an historical theory, and Nozick

has good reason, despite his misplaced faith in laundry, to look for a non-arbitrary principle of acquisition.® He claims to find this principle sketched in Locke's chapter on Property in the Second Treatise. Yet his attitude to Lockean scripture is ambivalent. The questions he raises about Locke's theory (pp. 174-5) are a hilarious—and penetrating—piece of philosophical writing. But the fun Nozick gets from exploring Locke’s problems is merely fun; it is not demolition. For if entitlement theory is to work, some principle of just acquisition must be provided. There must be some way by which persons can come to hold previously unheld things, and this method must yield full capitalist property rights if Nozick is to sustain his claims against principles of distributive justice whose maintenance needs state intervention. If Nozick is right there must be something which a person can do to a thing which will make it his own to use, neglect, alienate, or destroy as he chooses. In arguing towards these conditions, Nozick does two things to Locke's principle of just acquisition: he streamlines it and extends it. I shall argue that his extention is plausible and powerful, but that the streamlining unfortunately smoothes away an indispensable part of Locke's theory, the part which tries to explain why the mixer of labour is entitled to the product. If this part is restored property rights can be explained, at the cost of some extra assumptions, but the property rights so established are not full capitalist property rights.

LOCKE

AND

NOZICK

ON

MIXING

LABOUR

Locke and Nozick both see it as their task to ‘show how men might come to have a property . . . without any express compact’ (§ 24).§ They will do this by showing that private property rights do not violate others’ rights, who therefore need not be consulted. If their argument succeeds they will show that private property rights are part of the (basic) right of liberty and so not merely compatible with but required by justice. Certain sorts of acquisition of property clearly violate others’ basic

Nozick’s Entitlements

Bs

rights. For example, slavery is incompatible with the right to liberty. But according to Locke and Nozick control over things need not violate others’ liberty if there remains ‘enough and as good left in common for others’ (§ 26). IfA appropriates some natural object, such as acorns, grass or water (Locke) or grains of sand (Nozick) (§§ 27-29: p. 175), but there remains enough unappropriated for others to do anything they might have done before A’s appropriation, then the appropriator has not violated any rights. Each person has as large a liberty as before, “for he that leaves as much as another can make use of does as good as take nothing at all’ (§ 31). The problem is to be sure that the ‘enough and as good’ proviso is not violated. On this point Nozick and Locke diverge. Locke is worried: Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of

both, is perfectly the same.({§ 32)

This suggests that there may be many places where there is not enough and as good remaining once a certain amount of appropriation has happened. Locke points backwards to underpopulated days when: it was impossible for any man, this way, to entrench upon the right of another or to acquire to himself a property to the prejudice of his neighbour, who would still have room for as good and as large a possession (after the other had taken out his) as before it was appropriated. (§ 35)

He points to ‘the inland vacant places of America’ (§ 36) and other waste lands (§ 45), though he admits that unappropriated land will vanish with the use of money (§ 47). Nozick overcomes the worry by pointing out that it is possible to compensate others for their lost liberty. If appropriation and enclosure leave no further land or resources to appropriate, the propertyless have lost the right to use the resources appropriated but this will be justifiable if their overall position is not worsened (pp. 175-9), if the opportunities gained through others’ appropriations at least compensate for the liberties lost. There is no need to point out vacant places or unappropriated resources to show present holdings

314

Onora O'Neill

justifiable, no need indeed to use acorns and grains of sand as examples: one has only to demonstrate that the present situation leaves the propertyless no worse off than they would be in an (admittedly hard to describe) baseline situation (p. 177). This extension of the ‘enough and as good’ proviso shows that Locke’s theory need not reckon unjust all situations in which some sorts of resources have been entirely appropriated, leaving some people without property of this sort or the chance to appropriate any. It is enough (and as good) to compensate others with equivalent resources and opportunities, and not necessary for there to be either the same or the same sorts of items as existed before appropriation began. For it is only after appropriation that there are entitlements to particular resources. No rights are violated because the Stone Age way of life has been destroyed by appropriation, provided there is a compensating bundle of opportunities and resources.7 Liberty of the person does not require any particular set of resources or opportunities.

So far this account of Locke’s and Nozick’s principles of just acquisition has shown how a system of private property could exist without violation of rights. But no argument yet given explains how one rather than another individual acquires a particular holding. Nor does consideration of the “enough and as good’ proviso show that there would be anything unjust about reassigning holdings, provided that the ‘general post’ of holdings does not violate the proviso.

This gap, of course, is supposed to be filled by the claim that entitlement is produced by mixing one’s labour. However, the transition from A mixed his labour with x to

A is entitled to (has the right to control) x

requires justification. Nozick believes that we should ‘hold onto the notions of earning, producing, entitlement, desert and so forth’ (p. 155). But, of course, holding on is not enough; we need an argument too. And this argument proves perennially elusive.

Nozick’s Entitlements

Sp

Locke pointed out one line of argument when he said of the original use of nature's products: The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his and so his—i.e. a

part of him, that another can no longer have any right to it before it can do him any good for the support of his life (§ 25)

In this case entitlement requires incorporation and the right to control follows from the liberty of the person. But most appropriation is not literally incorporation. The point of property rights is gone if we can't have things unless we eat them: for even without property rights we can still use what nature provides. Locke therefore tries to push appropriation back from the moment of consumption to the moment when an item is removed ‘from that common state Nature placed it in’ (§ 26) and claims that ‘by this labour something is annexed to it that excludes the common right of men’ (§ 26). When we appropriate we mix our labour, and the final product is therefore not only nature’s but ours, since it incorporates something of us, our work’ or ‘labour. We come to own things not because we incorporate them, but because they incorporate (part of) us: . every man has a ‘property’ in his own ‘person’. This nobody has any right to but himself. The ‘labour’ of his body and the ‘work’ of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with it, and

joined to it something that is his own, and thereby makes it his property.

(§ 26). The transition in this argument from ‘joined to it something that is his own’ to ‘makes it his property has been given various ingenious glosses by Locke’s commentators. One view suggests that he made an illegitimate transition from ‘work’ or ‘labour’ in the sense of activity (whose control is justified by liberty of the person) to ‘work’ or ‘labour in the sense of product (whose control therefore remains unjustified).8 Another engaging suggestion is that Locke was misled by thinking of production as reproduction. Aristotelianly conceived, in which ‘something’ is mixed with Nature, ‘the common mother of all’, and the result is the begetter’s own.® This is not a plausible

316

Onora O'Neill

attribution to a writer who believes that mothers and fathers have equal and limited rights (§ 52). Nozick himself raises only questions. He points out the many difficulties in the way of assigning complete ownership to the contributor of one factor of production (pp. 174-5), and the more fundamental problem of understanding why any rights should accrue from mixing one’s labour. Why should not labouring be a way of losing one’s labour, of improving what is ‘in the common state’? Why, at best, should the labourer acquire more than a share in the final product in proportion to his contribution?

LOCKE'S SOLUTION I want to suggest that Locke provides an explanation of “how a property begins’, which can be dug from the text without much exegetical ingenuity, but requires a retreat from Nozick’s streamlined Locke. This explanation too rest on a dubious premiss. Locke’s starting point is that the Earth is common property: God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage oflife and convenience. (§ 25)

He has therefore to explain how common property can give way to private property. Nozick, by contrast, sets out to explain how what is unowned can become private property (p. 174). But this simplification does more than eliminate a redundant theological framework. There is a substantial difference between arguing from an initial equal liberty to use natural resources and arguing from an initial equal liberty to use them ‘to the best advantage of life and convenience’. Again and again Locke states that the purpose of property is that men should not only use, but make the best possible use of resources. ‘God has given us all things richly’. Is the voice of reason confirmed by inspiration? But how far has He given it us—to enjoy’? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. (§ 30)

This ‘non-waste condition’ Nozick sees as merely a means to ensure that the ‘enough and as good’ proviso is met for as long as possible

Nozick’s Entitlements

aby

(p. 176). But if property is linked to making the best possible use of resources, then we must avoid waste even when there is no danger of violating the ‘enough and as good’ proviso. For we do not improve or use to advantage what we waste even when our waste does not deprive others of any opportunities. As Locke sees it, the non-waste condition limits appropriations because our productive powers and our capacities to consume are both limited. He belabours this point in §§ 35-35: As much land as a man

tills, plants, improves,

cultivates and can use the

product of, so much is his property. (§ 31) God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth—i.e. improve it for the benefit of life and therein lay out something upon it that was his own, his labour. (§ 31) God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniences oflife they were capable to draw from it it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational . . . (§ 33)

And finally: subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. (§ 34)

which leads straight on to an explicit claim that production requires individual property: God, by commanding to subdue gave authority to appropriate. And the condition of human

life, which requires labour and materials to work on,

necessarily introduces private possessions. (§ 34)

and to the claim that individual property maximizes production: he who appropriates land to himself does not lessen but increases the common stock of mankind. (§ 37) From

these

passages

it is easy to reconstruct

a valid argument

showing how title is acquired by the mixer of labour. It might run:

318

(1) (2) (3) (4)

Onora O'Neill

A A A A

mixes his labour with x. improves x. can improve only what he has the right to control. has the right to control x.

Locke would argue more strongly that we ought to (try to) control some x's, since we have a duty to improve the Earth. But the above

argument leaves it open whether we have duties to seek property rights. Line (2) of this argument is merely an interpretation of line (1): to mix one’s labour with something is not merely to cause a change in it but to improve it in some way (perhaps to make it more desirable or more accessible). Both Nozick and Locke would presumably accept this restriction on the sense of ‘mixing one’s labour’. They would not think that Locke’s acorn gatherers appropriate the forest floor by leaving their footprints there; they only appropriate the now gathered acorns. But line (3) of the argument is implausible. Locke is arguing that the conditions of production demand the entitlement of producers. Property rights are rights to use nature productively (improve it), not just to use it. Such improvements, Locke alleges, can only be made when producers have property rights. This beliefisuntenable on two counts. Production can take place when producers do not have complete control of resources; and it can take place when they have no right to control resources. Much productive labour is collective; much has been produced without individual holdings; even more without full capitalist property rights. On the other hand complete (or even partial) but unjustified control is also often sufficient for production. Even thieves or squatters may improve their ‘holdings’. Locke’s argument can justify individual property rights only when they are a necessary condition of production, hence in many cases could justify no sort of property right. Even in those cases where he could justify individual property rights, these would not be full capitalist property rights. Since control is justified as a requirement of improving things, it could never extend to a right to destroy or fail to make productive use of some resource. The Parable of the Talents is not far from Locke’s mind. It seems therefore that Locke’s argument to show why the mixer

Nozick’s Entitlements

319

of labour should have title has two defects from Nozick’s point of view. First, it rests on a false premiss about the requirements of production; secondly it leads to too weak a conclusion. If entitlement theory is to be rescued both defects must be overcome. Line 3 of the argument might perhaps be replaced by the weaker (3') A will improve best what he has the right to control. In this case the justification of private property rights would be that they provide better incentives and lead to more efficient production than can be achieved either with noncapitalist property rights or by mere possessors. Nozick alludes to these considerations as ‘the familiar social considerations favoring private property (p. 177). If we accept (3’) and disregard the familiar social considerations favouring different sorts of property rights, the argument will not hold up without an additional premiss mandating maximal production, which would suffuse the justification of property rights with a utilitarian tinge. Even were this accepted, the property rights so justified would fall short of rights to destroy or to idle productive resources, and so would not be full capitalist property rights. Even though it might not be possible for Nozick to adapt Locke’s justification of property rights, there might be some quite separate line of argument from (1) to (4). But the available lines of thought do not seem likely to lead to the desired conclusion. Nozick might, for example, argue that labour always costs the labourer something (he suggests this approach on page 175), and so that the labourer is entitled to some sort of recompense. But this recompense is unlikely to be complete control of the product, and in any case cannot be any sort of entitlement since Nozick holds that nothing is owed in virtue of unsolicited benefits conferred (p. 95). In the absence of specific contracts we do not have any right that others should compensate us for effort we voluntarily expend from which they benefit. Alternatively Nozick might try to argue that any abridgement of full capitalist property rights abridges the liberty of the person, which includes capitalist acts between consenting adults. However, we could know that such acts were permitted by the right to liberty only on the basis of some other argument, such as the ‘enough and as good’ proviso, to show that such acts are not themselves rights-

320

Onora O'Neill

violating. And even were such an argument given, we would need a way of linking particular holdings to particular individuals. Without a separate argument to show how entitlement arises, capitalist acts would include any taking of others’ possessions (to which after all they can demonstrate no entitlement), and no accumulation of such

acts could establish title. Before capitalist acts between consenting adults can take place in an orderly way, there must be solitary capitalist acts. Acquisition precedes transfer. These negative conclusions are not altered by considering Locke's supplementary argument that full capitalist property rights arise only after the introduction of money (§§ 46-50), which permits unlimited accumulation without the non-waste condition being violated. It is true that an imperishable medium of exchange allows more extensive holdings, but it will still not confer rights to hold unlimited quantities of perishable resources or to hold productive resources idle or to destroy resources. Nor, of course, will the supplementary argument give any further explanation of why particular individuals should have title to particular holdings.

PROCEDURAL

AND

STRUCTURAL

THEORIES

OF

DISTRIBUTION

These comments on entitlement theory have been largely adverse. However, I believe that Nozick has enormously clarified the discussion of theories of just distribution by emphasizing the differences between entitlement theory and other theories. Entitlement theory is about procedures for acquiring and transferring property justly; patterned and end-result theories of distribution are about the structure of property rights ofa society. There is no reason why both a structural (patterned or end-result) account and a procedural (e.g. entitlement) account of a single set of holdings should not be given. For, contrary to the implications of the Wilt Chamberlain example, many patterns and end-results are remarkably stable in the face of a system of voluntary transfers. Of course, in justifying a distribution of resources one can point one way or the other. Either one may hold that a particular structure determines whether a distribution is just, or that following certain procedures shows that it is just. But it may then turn out that the best route to a just structure is by controlling (or not controlling) procedures, or that the best way to

Nozick’s Entitlements

Bol

guarantee that certain procedures are followed is to specify a range of acceptable structures for their outcomes. (Ifthe latter point seems implausible, consider maximizing the frequency of transfers [gifts and bequests] to non-related individuals not by specifying rules facilitating such transfers, but by setting an upper limit on individual holdings.) Nozick is alive to these possibilities, for he praises invisible-hand explanations which show ‘what looks to be the product of someone’s intentional design as not being brought about by anyone’s intentions (p. 19). If an end-result or pattern of distribution is sustained by following certain precedures this would be an example of an invisible-hand mechanism; similarly if certain procedures are fostered by requiring or ruling out certain end-results. Nozick himself (p. 202) points to Hayek's claim that capitalist procedures are the best route to implement Rawls’s difference principle (maximizing the resources of the worst off) as a case of maintaining an end-state by adhering to procedures. But Nozick is not so alive to the vast range of possible procedural theories of just distribution other than entitlement theory. There are many possible principles of acquisition which are weaker or less individualist than Nozick’s streamlined Lockean principle, and there are many possible principles of just transfer. Such principles might justify less than full entitlement of individuals to unlimited amounts of resources of any sort. They might restrict the uses to which certain (or all) sorts of resources are put, or the persons or groups who could hold or transfer resources. Since Nozick’s argument fails to show how individuals can acquire full entitlement in the first place, he has not given reasons for rejecting other procedural theories ofjustice. Since the Wilt Chamberlain argument presupposes full capitalist entitlements, he has not shown why one must reject non-procedural theories of justice. Even if we share with Locke and Nozick the view that individuals have rights not to be harmed in life, health, or liberty, we have so far no reason to accept entitlement theory.

NOTES

1. I would like to thank G. A. Cohen for helpful comments and conversation.

829

Onora O'Neill

2. Robert Nozick, Anarchy,

State and Utopia,

Basic Books, New York

1974. Parenthetical page references are to this book. 3. Nozick defines the minimal state as ‘protecting all its citizens against violence, theft and fraud’ (p. 26). This definition jumps the gun since the latter two protections presuppose property rights which are argued for in Part II of the book. 4. The problem lies in explaining what is required of just transfers over and above their being voluntary. Involuntary transfers are clear violations of entitlement; but so are some voluntary transfers. Since Nozick thinks that the state should protect individuals against fraud, he presumably places conditions over and above mere consent on just transfers. Only informed consent will justify. Once we say this much the specification ofa principle or just transfer becomes extremely intricate. 5. Later (p. 293) he suggests that historical injustices would be washed away if one could show that a given situation could have been reached by some ‘hypothetical just history’ not too different from the actual story. If we may rewrite history, there will be little we cannot justify. 6. John Locke, Of Civil Government, Second Treatise, Everyman’s Library, London 1924. Parenthetical paragraph numbers refer to this work. 7. Cf. Anarchy, State and Utopia, p. 178, n. MacPherson holds that Locke himself extended the “enough and as good’ proviso in this way. C. B. MacPherson, The Political Theory of Possessive Individualism, Clarendon Press, Oxford 1962, pp. 212-14. 8. J. P. Day, “Locke on Property,” Philosophical Quarterly, Vol. 16 (1966), attributes this (and kindred) confusion to Locke. 9. R. Brandt, “Zu Locke’s Lehre von Privateigentum’, Kant-Studien, Vol. 63 (1972).

16 Yours, Mine, and Ours:

Property Rights and Individual Liberty CHEYNEY

C. RYAN*

A people averse to the institution of private property is without the first element of freedom. [LoRD ACTON The History of Freedom]

Defenders of private property have traditionally linked the rights of ownership with individual liberty. Adam Smith considered private acquisition of goods, and the propensity to “truck and barter” them for others, to be part of the “range of natural liberty” which men occupied in their prepolitical state; attempts by the government to interfere with the “free market” resulted not only in inefficient economies but in intolerable restrictions on man’s natural freedom. This outlook reflects Locke’s earlier views on property and its relation to the civil order, as expounded in his Second Treatise. Unlike Hobbes, Locke believed that the rights of private property and free exchange logically preceded the establishment of the political order, arising instead from man’s natural propensities— particularly for Locke the need for self-preservation. Thus he writes 323

324

Cheyney C. Ryan

(at the beginning of the Treatise) that man’s natural condition is “a State of perfect Freedom to order their actions, and Persons as they think fit, within the bounds of the Law of Nature, without asking

leave, or depending upon the Will of any other Man.” When the rights of property were secured in the civil constitution, the state merely agreed to respect those activities men freely and “naturally” engaged in; to do otherwise would be coercion. A century and a half later, and from a radically different philosophical perspective, Hegel would voice similar sentiments on the ties between private property and liberty. “From the standpoint of freedom,” he writes in the Philosophy of Right, “property is the first embodiment and so is in itself asubstantive end.”? In Robert Nozick’s much publicized Anarchy, State, and Utopia,? the proposed connections between private property and personal liberty play a key role in his defense of property rights against the incursions of the welfare state and the schemes of distributive justice which motivate such welfare programs. Nozick’s defense of the “laissez-faire” position is a fresh one, though its themes are traditional. In this paper I will examine some of Nozick’s arguments, with the hope of illuminating the links between property and liberty which have so impressed others. Sections I and II discuss Nozick’s claim that enforcing “patterned” principles of distributive justice invariably leads to restrictions on personal liberty, an intolerable interference with people’s lives. The problem with this argument is that it assumes prior commitment to the rights of private ownership (and the freedoms those rights insure); where those rights are not taken to apply, the “restrictions” necessary to maintain patterns seem of little consequence.

In Sec-

tion HI I show that the claim that free exchange “naturally” gives rise to private ownership of the means of production also holds true only if we assume extensive private property rights. Since the debate between “socialist” and “capitalist” conceptions of justice turns largely on the existence of private property rights, an argument like Nozick’s against alternative views which presumes such rights appears somewhat off the mark. It seems that Nozick takes the value’ of private property rights to be self-evident because of their link with individual freedom. But in Section IV I present an argument to show that the institution of private ownership itself involves continuous interference with the freedom of the majority.

Property Rights and Individual Liberty

325

Nozick’s response to this argument—strangely enough— involves dropping the great importance he elsewhere attributes to individual freedom. In the Conclusion I discuss some points raised by discussion concerning the general relation of liberty to property rights. LIBERTY

AND

PATTERNS

I want to consider first Nozick’s critique of patterned conceptions of justice and the defense of his own entitlement theory. The entitlement theory is designed to bolster the case for Nozick’s updated version of the night-watchman state, for Nozick recognizes that a chief objection to this minimal state will be that, without a more

extensive state apparatus, the claims of distributive justice will go unmet. Earlier proponents of laissez-faire policies (such as Frank Knight and F. A. Hayek) met this charge by arguing that the “free market”

mechanism,

left to itself, would

reward

individuals

ac-

cording to their productive contribution, thus generating a naturally just distribution. Nozick is aware of some of the problems with the theory of income distribution which underlies this argument. To begin with, marginal products determine income only with a distribution of holdings already given (so the problem of justice is merely shunted back a step); even more seriously, the “Cambridge Controversy” has raised questions about the logical coherence of the theory of marginal products for a nonstationary economy.? So Nozick wisely avoids pegging the justice of capitalism to the way the price mechanism distributes wealth and attempts instead to disarm the claims of distributive justice at the outset by attacking the very notion that a just society is one whose goods and services are distributed according to some preconceived pattern. A just distribution, Nozick will argue, is whatever distribution is brought about by the process of “free” exchange. Nozick’s defense of his own theory rests primarily on his critique of its competitors. “It is not clear,” he writes, “how those holding alternative conceptions of distributive justice can reject the entitlement conception ofjustice in holdings.”4 Against patterned conceptions of justice he argues that personal liberty and such patterned principles will always be at odds with one another: liberty will tend to “upset” any given pattern once instituted and, conversely, the attempt to maintain such patterns (by the more than minimal state)

326

Cheyney C. Ryan

will always restrict individual liberty. “No distributional patterned principle of justice,” he argues, “can be continually realized without continuous interference with people's lives.” The chief point in favor of the entitlement theory is, in Nozick’s opinion, its compati-

bility with the individual's liberty. (I would agree with those who see the appeal to personal liberty as the key argument in his account of distributive justice; as James Dick writes in a perceptive article on distributive theories, the “fundamental reason” for Nozick’s rejection of the “patterned” approach—and for his adoption of a “process” criterion— ‘is that the value ofliberty requires it.”® In my opinion, it is the most important argument of the whole book. Since many of us have not felt Nozick’s attraction for anarchism—or if we have, it has been for different reasons—his argument that a state could exist which did not violate anyone’s rights is an interesting exercise in dialectic, but little more. What is striking is his contention that the more-than-minimal state, which is seemingly required by “patterned” conceptions ofjustice, must infringe on personal liberty. If this is true, we are in a position, it seems, of accepting Nozick’s general views, or resigning ourselves to an inevitable conflict between the claims of justice and those of liberty.) “Let us call a principle of distribution patterned if it specifies that a distribution is to vary along with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions.” As examples of patterned principles, Nozick suggests that we can turn to “almost every suggested principle of distributive justive”—those that would distribute holdings according to moral merit, or need, or marginal products, etc. Suppose that an initial patterned principle determining a distribution of holdings is realized. Nozick does not specify what sort of goods, or “holdings,” are being distributed; we may presume, then, that his argument is to hold true for all types of holdings. “Let us suppose it is your favorite one and let us call this distribution D1; perhaps everyone has an equal share, perhaps shares vary in accordance with some natural dimension

you treasure.”? Given this initial position, it is

easy to imagine circumstances where individuals might agree among themselves to transfer their holdings, exchange them for others, or just give them away, and in so doing upset the favored pattern. As an illustration, Nozick chooses a case in which individuals exchange

Property Rights and Individual Liberty

427

parts of their personal income for the services of others. Basketball fans, for example, may willingly pay a special twenty-five cents to see Wilt Chamberlain play basketball (in his off-hours, say), thus providing Chamberlain with an income far greater than his initially determined share; or—less realistically—you and I in our off-hours may agree to give philosophy lectures for remuneration from our neighbors. Any such actions will involve moving to a new distribution of personal income (D2), one which does not correspond to the initial patterned allocation of income shares. But: “If Di was a just distribution, and people voluntarily moved from it to D2, transferring parts of their shares they were given under D1. . . isn’t D2 also just?” “There is no question about whether each of the people was entitled to the control over the resources they held in D1; because

that was the distribution (your favorite) that (for the purposes of argument) we assumed was acceptable.”® To prevent the transition to Dz in the name of maintaining the favored pattern distribution seems to involve preventing people from doing what they choose to do, and this is Nozick’s point. People’s liberty—as embodied in their desires to transfer their holdings to one another—grates against the maintenance of a pattern of distribution. “To maintain a pattern one must either continually interfere to stop people from transferring their resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them.”® Sustaining such patterned distributions would

seem

to involve,

then, continuous

interference with people’s lives on the part of the state. Nozick feels that he has a strong argument here—it is designed to prove, after all, that proponents of any of the competing conceptions of justice must ultimately be drawn to the entitlement theory. Let us be clear on what it purports to show. Traditionally critics of the more-than-minimal (welfare) state have charged that “meddling” by the government to bring about or maintain a fairer distribution of resources involves tampering with the rights of private property. At a time when rights of private ownership were accorded a supreme value, this was regarded as a pretty good argument against distributive programs—but the days when private property rights were held sacrosanct are past. An argument which pegged everything on a prior commitment to the

328

Cheyney C. Ryan

rights of private property would, on its own merits, not (I think) be very telling. Certainly such an argument would not accomplish what Nozick feels his argument does—the demonstration that all other conceptions of justice must be rejected in favor of the entitlement theory. For not all other conceptions ofjustice share a commitment to private property rights; a critique of the socialist conceptions of justice which presupposed the rights of private property would stand accused of missing the thrust of the socialist case. So what Nozick tries to show is that personal liberty upsets patterns: not private property rights, but personal liberty requires that we adopt an entitlement conception of justice. His claim would seem to be that, regardless of the strength of our commitment

to

such property rights, our shared commitment to personal liberty requires that we forsake whatever principle of justice we now hold for that which Nozick proposes. This claim, if made to stick, would have the required force to show patterned principles unacceptable, for it is certainly legitimate to assume a consensus concerning the value of liberty (what Feinberg calls a “presumptive case for liberty )!° and the undesirability of any social order which continually infringed on the liberty of its citizens. Hence it is on the commitment to personal liberty that Nozick hopes to build his case against patterned principles ofjustice. HOLDINGS

AND

OWNERSHIP

Is Nozick’s strategy successful? I begin this section by describing a simple case of a patterned distribution of holdings in which individuals are not “free” to give away or exchange their holdings, yet it is clear that no coercion is involved. What is unique about the distribution I describe is that individuals are not presumed to have rights of ownership in their holdings; the point it illustrates is that restricting someone's freedom to exchange a holding constitutes coercion (infringement on personal liberty) only if the holding falls under the rights of private ownership (only if the holding is private property.) If Nozick’s appeal to the restrictions of free exchange needed to sustain patterns is to be sufficient for rejecting patterned distributions of holdings in general, he must assume that all holdings come under the rights of private ownership—that all holdings are private property. But such an assumption of extensive private

Property Rights and Individual Liberty

329

property rights, I argue, undercuts his general case against patterned principles ofjustice. In our public university systems there are a finite number of teaching positions in philosophy. These positions are held by men and women of various ages, having been awarded them presumably on the basis of merit and ability. An educational researcher might investigate how the available positions were alloted to the available Ph. D.’s ina given state in a given year; looking at the overall pattern of who held what jobs, he might reach some conclusion as to the equity or fairness of the distribution of available positions (in one state, for example, the tenure system was criticized because it led to the unfair situation of older, but less qualified teachers holding positions over younger, more competent Ph.D.’s). There is of course little occasion to assess the overall distribution of jobs in philosophy among the available philosophers, but most of us (I would assume) hold some patterned conception of what a fair allotment of teaching positions would look like: merit, teaching ability, and the needs of the department would undoubtedly be our main criteria.

Assume that some (patterned) principle for determining holds what position is realized. Clearly, freedom of a certain would continually disrupt this “pattern” —the freedom of those held positions to give their jobs away, exchange them for services

of others,

or will

them

to a loved

one.

who sort who the

If individual

jobholders were free to do such things, it would be impossible to insure that those who held jobs “deserved” them by whatever criterion of desert we have chosen. But of course individuals do not have such freedoms, for such freedoms do not follow from the rights of holders of teaching jobs (that is why they hold their positions, rather than own them). Would we then conclude that the personal liberty of those who hold positions is infringed upon, or restricted, because they cannot sell their jobs? That maintaining a pattern of jobs held by merit involves “interference” with people’s lives? This would be absurd. This example shows that where the holding in question is something like a teaching position—something which the holder does not own—maintaining a pattern of distribution by “preventing” individuals from freely exchanging their holdings (jobs) does not seem to involve violating their personal liberty. It is certainly true that we

330

Cheyney C. Ryan

are not “free” to exchange our jobs as we wish to, but whether or not

this lack of freedom constitutes an infringement on personal liberty depends on the rights we have over the holding in question. Where my rights in something I have come to hold do not include the right to sell or exchange it, then preventing me from doing so hardly constitutes a restriction of my liberty. If a book belonging to one of my colleagues inadvertently falls into my hands, I am not “free” to sell it (or give it away) to one of my students, but this lack of freedom does not amount to a restriction of my liberty since I have not the right to sell it; similarly, if the university I work for provides me with a car for a trip required by my professional duties, it is not a restriction of my personal liberty that I cannot immediately sell it to the nearest car dealer (though I do have rights to, say, the use of the car). In the case of a teaching position, one certainly acquires some rights over a job by signing a contract or being given tenure: one’s right to a job and right to benefit from the job are infringed, for example, when one is dismissed for improper reasons, and the possession of such rights seems to imply that a holder has a “property interest” in his job in some weak sense. But if the rights of ownership are taken to include (as they usually are) not only the right to use and the right to appropriate returns from a holding but also the right to dispose of aholding as one chooses, then holders of teaching positions cannot be said to own them and hence cannot be coerced when prevented from selling what they do not own. (Of course, teaching positions could be private property, just as positions in the army were at one time things that could be bought and sold. Our difficulty with thinking of such positions as private property is attributable, I think, to the belief that they should not be bought and sold. If rights of ownership were extended to teaching positions, then they would come under the class of “intangible” property that now includes such things as seats on the stock exchange and copyrights of tunes. )!2 How does this example bear on Nozick’s general critique of patterned distributions of holdings? The case of teaching positions shows that for any set of holdings, sustaining a pattern

implies coercive

restrictions

(restrictions

on

personal liberty) only if the “holdings” are private property— holders have full rights of ownership in them. In Nozick’s illustrations involving shares of personal income, we may assume that

Property Rights and Individual Liberty

331

individuals own what they exchange. But to generalize from this sort of case to all economic holdings (as Nozick does) we must assume that all holdings are, like personal income shares, privately owned. Without the assumption that private property rights extend to all present and potential economic holdings, Nozick’s general contention that sustaining patterns of distribution implies the restriction of liberty simply will not hold: if each individual's holdings are not assumed to be his private property, then there is no reason to conclude that restrictions on the “free exchange” of holdings constitutes coercion.

That Nozick equates “holdings” with private property, and hence assumes an extensive set of private property rights, is clear from his own remarks. After asking the hypothetical opponent to choose his “favorite” patterned principle and consider holdings to be distributed accordingly, Nozick remarks that there can be “no question” that each person is entitled to “control” over the resources he holds, since the distribution is one which the opponent has chosen (by “control” Nozick means the right to sell or exchange).!* But there is no question only so long as we assume that, once the holdings have been distributed, individuals are accorded rights of ownership in the things they hold. But why should we assume this? Different conceptions of justice differ not only in how they would apportion society's holdings but in what rights individuals have over their holdings once they have been apportioned. The Marxist conception of justice, for example, sees the rights of ownership as extending only to personal items, while the vast bulk of society's holdings (its means of production, natural resources, etc.) falls under the rights of public property; individuals are accorded the right to use or exploit this latter sort of property for specific purposes, but they do not possess the right to give it away or sell it. Hence whether or not an individual's coming to hold a good entitles him to sell it depends, for the Marxist, on what sort of holding it is. If Nozick’s hypothetical opponent is a Marxist, there is no reason to conclude (as Nozick does) that simply because an individual has received a holding according to the Marxist’s “pattern” he has the right to dispose of it as he wishes. We see, then, that Nozick’s is not really a case against patterned distributions of “holdings” in general—it is at best a case against patterned distributions of privately owned property. As such, the

332

Cheyney C. Ryan

argument cannot accomplish what Nozick hoped it would. First of all, it does not show why those who hold alternative conceptions of justice must come to hold the entitlement theory. If Nozick’s appeal to the coercion involved in sustaining patterns rests (as I have argued) on the assumption that “holdings” are equatable with “private property,” then his argument does not even address those conceptions

of justice

which

reject

extensive

private

property

rights. In the second place, Nozick’s argument is unsuccessful in suspending the question of property rights and appealing directly to considerations of personal liberty. It is not clear how Nozick’s argument could have succeeded here. To claim that certain restrictions on what people may do with their holdings constitutes coercion presupposes (I have suggested) prior determination of the rights they have over their holdings. Nozick’s appeal to personal liberty presumes commitment to the rights of private ownership, and it would seem that any appeal to personal liberty in the matter of how people may employ their holdings must rest on a conception of what rights individuals have over their holdings in the first place.14 THE

SLIPPERY

SLOPE

INTO

CAPITALISM

A number of Nozick’s remarks suggest a possible response to my claim that he has failed to appreciate the distincitons which alternative conceptions ofjustice draw between types of holdings and the rights applicable thereto. It might be argued that if rights of ownership are allowed in any set of holdings (such as personal items) liberty will require that those rights be extended to all other types of holdings, such as means of production and natural resources; hence any restriction of rights of ownership implies restrictions of personal liberty. Nozick specifically addresses restrictions on the ownership of means of production, and so I will deal with the argument as it applies to those goods in particular. If we allow ownership of personal items, the argument goes, what is to stop someone from working in his off hours (performing services for others, say) to accumulate a far greater share of personal goods than anyone else, and then—by exchanging them for the labor of others—starting his own “capitalist enterprise?” Through such

activities,

Nozick

remarks,

factories

would

spring

up

in

Property Rights and Individual Liberty

oe

socialist society unless forbidden: “I melt down some of my possessions (under D1) and build a machine out of the material. I offer you, and others, a philosophy lecture once a week, in exchange for

your cranking the handle of my machine, whose products I exchange for yet other things, and so on.” From the possibility of such activites we may see ~. . . how private property even in means of

production would occur in a socialist society that did not forbid people to use as they wished some of the resources they are given under socialist distribution D1.”15 The point of this parable is that if socialist society allows any privately owned goods, then free exchange of those goods and their use may generate privately owned means of production. To prevent ownership in the means of production from occurring in this way (by passing a law against it) means restricting people’s use of the resources they have been allotted. But this—we are to conclude—amounts to an intolerable restriction on their personal liberty (the particular liberty at issue here would seem to be the freedom to use one’s goods as one wished, along with the freedom to exchange them). It seems undeniable that, by working in one’s off-hours and with the cooperation of others, one could come to possess a factory in a way described by the parable. But does this show that private property in the means of production “naturally” emerges from such a process? The distinction between possession and ownership becomes relevant here. Possession ofa good is a physical relationship, while ownership is a normative one involving the rights an individual has over a thing; to say that a good is someone's private property is to say not merely (or not even) that he possesses it but that he owns it. The mere fact that one has come to possess a good does not imply that one has acquired the rights of ownership in it. One does not own a good if it has been acquired through theft. What must be shown, then, is that people’s free use of their resources can give rise not only to the acquisition of means of production but to their ownership. Now the force of Nozick’s parable derives from the fact that the factory the individual possesses was not stolen or acquired through some illicit means but was gained through his diligence and with the cooperation of others. And implicit in the argument is the notion that if a good has been so acquired, then the holder should quite properly have rights of ownership in it, and to deny him those rights

334

Cheyney C. Ryan

is to infringe on his personal liberty. This latter notion may be questioned, though, for the fact that a good has been acquired through free exchange and exploitation of personal resources is not by itself sufficient ground for granting ownership of the good. Consider a case which Nozick himself provides: an individual could conceivably through a clever series of purchases appropriate all the drinkable water in a community (or conceivably the world). Does this imply that he should be granted permanent property rights in the water? Nozick, concurring with Locke on this point, denies that

ownership of an entire community s water supply is something that any individual should own (just think of the power that such ownership would entail). Similar considerations weigh against ownership of a single water supply if it is the only supply available to a community. For holdings such as this, which no individual may own, it matters little that someone might acquire it through diligence or free market channels.!® Certainly the possibility of such acquisition is not sufficient ground for extending rights of private ownership to such a holding. Does restricting private rights in this way infringe on personal liberty? Allowing an individual to monopolize the drinkable water would certainly threaten the freedom of access of a great many to that water, and would ultimately threaten their survival. Nozick seems to grant, in this case, that the manner in which a holding is acquired is not definitive in determining whether that holding may be privately owned. Certain considerations (for Nozick, those contained in the Lockean Proviso) simply exclude certain types of holdings from private ownership. If the freedom to use one’s resources fails to generate private property rights in a community’s water supply, will it generate such rights in the means of production? The answer to this question depends on the principles one accepts for excluding and including different types of holdings from private ownership. A Lockean will answer yes, because his proviso does not exclude such holdings from private control; but a Marxist, whose principles do not commit him to such extensive ownership rights, will answer no. Nozick’s contention that free acquisition of means of production will “naturally” give rise to ownership of such goods thus presumes a view of property rights which Marxists and others will contest. But does not personal liberty provide a presumptive case for private rights, here and

Property Rights and Individual Liberty

335

elsewhere? The water-supply example has already suggested that the freedom to use and exploit personal resources may not be the only freedom at issue in determining whether a holding may be privately owned. If the appeal to liberty is to be sincere, then it seems that one should consider all the freedoms affected by such an extension of rights (this point will be taken up again in the next section).

I do not intend to discuss where the socialist’s arguments against private ownership of capital; as in the water supply case, they involve the power over others which ownership accords the holder.‘7 But clearly if one agrees with the socialist that a community's means of production, like its water supply, should not be privately owned, then it is hard to see why the mere possibility of free acquisition should commit one to granting rights of private ownership in the former case any more than the latter. In both cases, the restrictions on the use of individual resources implied by public ownership will seem intolerable only if one assumes that the holding in question properly belongs in private hands. Nozick assumes this for means of production, hence his concern for restricting private ownership; but his appeal to liberty fails to show, I think, why we must share this concern. ENTITLEMENTS

AND

LIBERTY

Nozick’s argument that liberty will upset any patterned distribution of holdings and his argument that “free” use of resources will naturally give rise to private property in the means of production both rest on prior commitment to extensive private property rights. Nozick’s case thus hinges on thejustification he can provide for such rights: if that justification is a sound one his attack on other social ideals may work, but if it is not his arguments, as I have tried to show, cannot possibly succeed. What case does Nozick present for his framework of rights? At first glance, it does not seem he presents any case! He seems to say as much in his preface: “This book does not present a precise theory of the moral basis of the individual rights.”!® Moreover some of the traditional justifications of private property rights are explicitly (or implicitly) rejected. He eschews the utilitarian justification of private property which points to its efficiency; he

336

Cheyney C. Ryan

criticizes the Lockean view that rights emerge when an individual mixes his labor with unowned objects; and his methodology precludes that such rights could be the product of a social contract (Hobbes,) because he rejects the social contract approach for “invisible hand” descriptions. An important structural difference between Nozick’s theory and that of John Rawls with regard to the “grounding” of a set of rights is worth noting here. Nozick assumes—it seems—a set of rights (or asssumes that the link between personal liberty and these rights is obvious) and then examines the political structures which could arise within the constraints set by these rights—thus the invisible hand approach. In Rawls’s theory we do not begin with a set of rights, but rights are themselves subject to debate in the contract situation. Rawls himself feels that his theory is neutral with regard to economic systems, but certainly a case might be made—on the grounds of justice as fairness—against

extensive

private property

rights. In this respect Rawls’s approach gives us a lever for evaluating such rights from the point of view of justice that is simply not present in Nozick’s approach, which requires acceptance of his fundamental rights merely to get off the ground. In the allimportant controversies about which rights to respect, then, Rawls’s theory proves considerably more powerful.'9 How are we to interpret Nozick’s seeming omission of a justification for private property rights? Nozick may feel that he can simply appeal to our “moral intuitions” on this matter; recourse to such intuitions plays an important role in the justification of any moral theory, but such a recourse in the matter of individual property rights would seem to involve resolving by fiat what is the major point of controversy between “capitalist” and “socialist” conceptions of justice. Nozick’s commitment to private property rights is instead based (I think) on his belief that such rights are demanded by the values of personal liberty, or autonomy. In arguing against those conceptions of justice which would restrict such rights Nozick, as we have seen, persistently appeals to personal liberty; in linking private property with personal liberty he seems to ally himself with that tradition of defenders of laissez faire mentioned at the outset of this paper. If the link were obvious, it would constitute a powerful endorsement of the rights of ownership, since our (assumed) shared commitment to liberty would then carry over to those rights as well. I will now argue that the link between private property and

Property Rights and Individual Liberty

ney E

liberty is not obvious, for a case can be made that the institution of private property itself brought about (and sustains) a substantial restriction on individual freedom.?° The ways in which “entitlements’ restrict freedom present serious difficulties for anyone who would link private property with individual liberty, and Nozick does not adequately deal with these difficulties. More importantly, though, the case against ownership rights (along with Nozick’s arguments against patterned principles) itself suggests a general difficulty with justifying rights in terms of the liberties they restrict. I will touch on this difficulty in the Conclusion. In precapitalist forms of property most communities had large tracts of common ground (“commons”) which were available to all for the grazing of sheep, growing of crops, even habitation. It was the right of every townsperson to use this land, and the freedom of access to it was taken to be one of the citizen’s basic liberties. The enclosure movement subsequently transferred this land from the authority of common ownership to one of private ownership—it involved, in other words, a shift in the rights applicable to the land. For the vast majority of people living in England during this period of enclosure, the extension of (modern) rights of ownership meant the abolition of rights they had previously enjoyed, a significant diminishing of their freedom of access to the land, the freedom to use its soil, water, etc. This restriction was, of course, permanent.

And it was viewed at the time as a significant attack on the rights and liberties of Englishmen (of the lower classes, of course). Here is the opinion of a Norfolk laborer, addressed to the proponents of enclosure: “You do as you like, you rob the poor of their Commons right, plough the grass up that God sends to grow, that a poor man may feed a Cow, Pig, Horse, or Ass; lay muck and stones on the road to

prevent the grass growing. ... There is 5 or 6 of you that have gotten all the whole of the Land of the parish in your own hands and you would wish to be rich and starve all the others of the poor.”?? Because it involved a transition from rights and liberties held by many to private rights held by a relative few, one could sensibly argue that the extension of private ownership brought about (then, and for subsequent centuries) a diminishing of liberites (think of all those places that commonfolk

were

no longer free to go, free to

use—whose access was denied them by the policies of the state, respecting rights of private ownership). From this familiar bit of history one can easily construct a case

338

Cheyney C. Ryan

against the rights of individual ownership by pointing to the overall restrictions of liberty they brought about. It is worth noting that the freedoms involved here are not the same ones Nozick has in mind when he appeals to “liberty” in general. Nozick’s argument against patterns is concerned specifically with the freedom to dispose of property, while the freedoms restricted by private rights are those to use and exploit common property. If our concern is with freedom in the aggregate, then all freedoms with respect to holdings should be considered; hence the case against extensions of private property rights. Nozick touches on this problem, though not in the form I have put it, in his discussion of Locke’s theory of acquisition. But surprisingly Nozick’s response is to play down the importance of individual freedom, which he elsewhere treasures so highly. Aware of the controversies surrounding enclosure at the time he was writing, Locke asserted the right to appropriate property with the proviso that there be “enough and as good left in common for others.” If we take this to mean that individual appropriation cannot diminish the freedom of others to use land and goods they now exploit in common, it is obvious that the proviso puts an effective throttle on almost any extensions of private acquisition and the extension of private property rights. It may even imply, Nozick comments, that “no natural right to private property can arise by the Lockean process.” It certainly raises the question of how the extension of exclusive property rights can be compatible with the general freedom, as embodied in the freedom to use and exploit nature's resources. Nozick’s response to this difficulty is confusing. His attitude is stated most clearly in a footnote to his discussion of the proviso: “Fourier held that since the process of civilization had deprived members of society of certain liberties (to gather, pasture, engage in the chase) a socially guaranteed minimum provision for persons was justified as compensation for the loss . . . But this puts the point too strongly. This compensation would be due those persons, if any, for whom the process of civilization was net loss. for whom the benefits of civilization did not counterbalance being deprived of these particular liberties.”?® Nozick recognizes that certain liberties are very definitely restricted by the extension of private ownership; it is good to keep in mind that these restrictions are enforced by the modern capitalist state, defending the rights of private acquisition (and

Property Rights and Individual Liberty

339

interfering, perhaps, in people’s lives?), Yet Nozick invites us to look to the “benefits” of (capitalist) civilization. “Is the situation of persons who are unable to appropriate (there being no more accessible and useful unowned objects) worsened by a system allowing appropriation and permanent property?” To suggest that it is not, Nozick has introduced the familiar arguments for how private property is the source of long run material gain (by increasing the social product, encouraging efficiency, etc.).22 The soundness of these arguments is not so important as their intent: to show that private property benefits the physical welfare of the people. Now previously we have seen Nozick invoke personal liberty as the decisive ground for rejecting patterned principles of justice and restrictions on the ownership of capital (arguments here that such policies may maximize general well-being he considers irrelevant). But where the rights of private property admittedly restrict the liberties of the average person, he seems perfectly willing to trade off such liberties against material gain for the society as a whole. Why is liberty accorded a primary importance in one case and not in the other? Why should the freedom to dispose of one’s property be of such great concern,

while the freedom to use, walk on, look at

common property can be dispensed with in the interest of the general welfare? Quite possibly Nozick feels that person autonomy requires not liberty in general, but the particular freedoms which the rights of private ownership ensure. Such a view seems to be suggested elsewhere in Nozick’s discussion; it would explain why he so prizes the freedoms to sell and exchange and places such little value on others.24 But the arguments of Nozick’s which I have discussed, particularly that against patterns, purport to appeal to liberty in general, and not merely to those liberties which presuppose private ownership. More important, though, is the fact that Nozick has yet to make clear (to me, at least) the direct connection between personal autonomy, which we all treasure, and the extensive private property rights which he treasures. Until he does, the priority he gives to some freedoms over others will remain unexplained. CONCLUSION

The argument against exclusive property rights raises (at the very least) some difficulties for those who directly link private property

340

Cheyney C. Ryan

rights with personal liberty. Taken together with Nozick’s arguments,

it also raises some

general problems

about

the relation

between property, liberty, and rights—problems which are worth noting.

1. Though we speak of “ownership” as a right one has in a holding, it is in fact a bundle of rights which (ordinarily) includes the right to use a holding, to benefit from (or appropriate) returns from it, and to dispose of (or alienate) it. Each of these rights secures a particular freedom the owner has with respect to his holding, and it is sometimes important to distinguish these particular freedoms. As I have already noted, when Nozick appeals to “liberty” in his argument against patterns, his appeal is not to liberty in general but to the particular freedom an owner has to sell his property. The argument against private property appeals to “liberty” as well: but the particular freedoms it appeals to are the freedoms to (nonexclusive) use of, and benefit from, a set of holdings, and the freedom to exchange

property

is not an issue

here.

Once

we

appreciate

the

multiplicity of rights one may have in a holding, and the different sorts of freedoms these rights secure, we may come to be skeptical of claims that liberty per se demands a particular set of (property) rights. Any given set of rights (such as private property rights) insures some freedoms (such as the freedom to exchange) but also thwarts others (the freedom of others to use property now privately owned). “Freedom” in the abstract does not determine, one way or another, whether private property rights should be adopted; if we adopt such rights, it is because we treasure certain freedoms more than others, we value the freedoms which private property rights secure more than those secured by other sets of rights. And this valuation must itself, of course, be justified.

2. In delineating the links between property rights and individual liberty, one need not focus solely on the freedoms a set of rights secures with respect to holdings. And in suggesting that the choice between private rights and “public” ones is a choice between the types of freedoms these rights secure over holdings, I do not mean to ignore the links some may draw between a particular set of property rights and freedoms ofa“noneconomic” sort which may be promoted by those rights. Milton Friedman, for example, argues persuasively (though, I believe, unsuccessfully) that private property is necessary for a truly pluralistic society, in which the freedoms

Property Rights and Individual Liberty

341

of speech, thought, and political participation are secured.2> His argument is a forceful one precisely because the “liberties” which he links to private property are the sort which no one (in our political tradition at least) would want to question. But where the liberties appealed to directly involve what one may (or may not) do with holdings, it is a different matter: for a dispute over property rights simply is a dispute over the importance of the liberties such rights establish. 3. Finally, I should note an important limitation shared by Nozick’s argument against patterns and the argument of Section IV against private rights. We saw in Nozick’s case that to argue that a particular restriction on what people may do with their holdings constitutes coercion one had to assume a set of rights which entitled individuals to do with their holdings what they were (presumably) restricted from doing. The need to assume some background set of rights holds true for the case against private property as well: restrictions on the use of (heretofore) common property will constitute restrictions on liberty only if we assume the rights of earlier forms of property, by which individuals were entitled to use of common lands. The problem with arguments which must assume a set of rights to make their appeals to personal liberty stick is that they will be oflittle consequence when confronted with views which reject their particular set of rights. The failure of Nozick’s argument to even address conceptions of justice which reject private property rights is an illustration, I think, of this more general point.

NOTES

*For their comments and criticisms of this paper I would like to thank Antonia Ristorcelli, Hillel Steiner, Michael Gorr, and the editor of Ethics. A portion of this paper was read at the Pacific Division of the American Philosophical Association, March 1976. I am indebted to the remarks of my commentator, Carl Cranor. 1. See Smith’s The Wealth of Nations, book 1. Locke believed that our natural rights (including the right to private property) required little justification because they followed from the axiomatic proposition that men are naturally free and equal (see the discussion of Locke’s theory of property rights in C. B. MacPherson, The Political Theory of Possessive Indi-

Cheyney C. Ryan

342

vidualism [Oxford: Oxford University Press, 1962], pp. 197-221). Quote from Locke is from the Second Treatise, sec. 4. 2. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books,

1974); hereafter cited as ASU. 3. On the “Cambridge Controversy,” see Capital and Growth, ed. G. C. Harcourt and N. F. Laing (New York: Penguin Books, 1971); G. C. Harcourt, Some Cambridge Controversies in the Theory of Capital (Cambridge: Cambridge University Press, 1972). It would appear from his comments that Nozick does not grasp the full import of the Cambridge critique of the traditional theory of distribution (see ASU, pp. 188-89).

4. ASU, p. 60. 5. Ibid., p. 163.

6. James Dick, “How to Justify a Distribution of Earnings,” Philosophy and Public Affairs 4.

7. ASU, pp. 160-61. 8. Ibid., p. 161. 9. Ibid., p. 163. 10. Joel

Feinberg,

Social

Philosophy

(Englewood

Cliffs,

N.J.:

Prentice-Hall, Inc., 1973), chap. 3.

11. See E. Furubotn and S. Pejovich, The Economics of Property Rights (Cambridge: Ballinger Publishing Co., 1974), introduction. 12. On tangible property, see C. Reino!ld Noyes, The Institution of Property (New York: Longmans, Green & Co., 1936), pp. 382-87. 13. The relevant passage is cited above—it appears in ASU, p. 168; see also ASU, p. 166. 14. This point will be taken up again in the Conclusion.

15. ASU, pp. 162-63.

16. Ibid., p. 179. Nozick’s discussion alludes to the interesting views of Hastings Rashdall, “The Philosophical Theory of Property,” in Property, Its Duties and Rights (London: Macmillan Co., 1915). 17. Since much of the force of Nozick’s parable derives from his identification of means of production with small machines, the sort one could easily manufacture privately, it is worth noting that Marxist arguments against private ownership of capital do not bear on such items. Nozick has some interesting things to say about these arguments in chap. 8, “Equality, Envy, Exploitation, Etc.” 18h ASU, py xiv.

19. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, Belknap Press, 1971). Rights are not recognized in the original position, but are created by the individuals contracting to form society. Theoretically, it is possible for the contractors to deny rights which to us seem natural (this point is raised by John Chapman in his article,

Property Rights and Individual Liberty

343

“Justice and Fairness,” in Justice: Nomos VI, ed. Carl Friedrich and John Chapman [Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1963]). 20. This same point is touched on in Henry Sidgwick, The Methods of Ethics (New York: Dover Publications, 1966), pp. 276-78; and in H. J. McCloskey, “A Critique of the Ideals of Liberty,” Mind 74 (1965): 486-87. 21. F. O. O'Connor, The Employer and the Employed (1844), cited in E. P. Thompson, The Making of the English Working Class (New York: Vintage Books, 1966), pp. 230-31. Thompson’s book gives an excellent account of how the enclosure movement was perceived. 22. ASU, pp. 178-79; my italics 23. Ibid., p. 177. 24. See, for example, Nozick’s discussion of moral constraints in chap. 3. This line of thought was suggested to me in private communications from Hillel Steiner

and

Michael

Gorr;

my

remarks

here are a brief (though

inadequate) response to their criticisms. 25. See Friedman’s arguments in his Capitalism and Freedom (Chicago: University of Chicago Press, 1962).

7, Nozick’s Entitlement Theory LAWRENCE

DaAvIs*

Robert Nozick’s Anarchy, State, and Utopia is an investigation of the moral state—its size, function, and possible origin. In the course of the investigation, Nozick deals boldly with an astonishing range of topics, including animals’ rights, how to get to utopia, Wilt Chamberlain’s rights, an analysis of envy, and what constitutes a just distribution of goods. In treating the last topic Nozick sketches a theory which may well turn out to be the most important part of the book. He calls it the entitlement theory, and it is likely that social philosophers to come will rank it with Marxism, various forms of utilitarianism, and other classical views having to do with the just distribution of goods in a state. Thus it may be of interest here to note some problems with the entitlement theory as it stands, propose some solutions, and examine the effect of such proposals on the central argument in Nozick’s book. THE

ENTITLEMENT

THEORY

Nozick presents the entitlement theory as a complex constructed out of three more basic theories. These three theories, the theory of just acquisition of holdings, the theory of just transfer of holdings, and the theory of rectification, are not given us. At first blush this 344

Nozick’s Entitlement Theory

a45

would appear bizarre, but Nozick says enough about them to give us an idea of the way they would function and the way the entitlement theory would employ them, were they worked out. In fact, we are able to make some interesting observations and objections with respect to the hints we are given, and that is enough to ask of the first version of any high-level philosophical theory. To begin with, let us consider descriptions of the three theories from which the entitlement theory is constructed: The theory of just acquisition of holdings specifies under which conditions a person is entitled to a holding taken from a state of nature. Locke had some remarks to make on this topic. Nozick refutes them, considers some revisions, and rejects these also. The

exact nature of this theory is left for future work. The theory of just transfer of holdings specifies those means by which individual’s entitlements to holdings may legitimately be changed. Presumably, theft, extortion, swindle, and taxation would be disallowed by thisstheory, whereas market transactions, charity,

and barter would be allowed. The theory of rectification specifies a procedure through which the effects of past injustices may be wiped out. More will be said about this theory later. The entitlement theory itself has two parts. The first part is called the theory of justice in holdings. It specifies those cases in which an individual is entitled to a holding. For the most part, it consists of the following definition (taken from page 151. Clause 3, which was withheld until later for expository purposes, is included): (1) A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. (2) A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. (3) A person who acquires a holding in accordance with the principle of rectification of holdings is entitled to that holding. (4) No one is entitled to a holding except by (repeated) applications of

(1)-(3). This definition is elegant and appealing. In form it is an induction with clauses 1 and 3 as base clauses and clause 2 as the induction clause. But it seems to require modification. Let us consider an incident taking place on a South Sea island. All

346

Lawrence Davis

of us on the island are entitled to our holdings until the night I go out and steal my neighbor's pig. According to the definition above, the rest of us are entitled to their holdings, but I am not entitled to the pig (since theft is presumably not a legitimate means of transfer and clause 2 is therefore unsatisfied). This conclusion seems unobjectionable. Suppose, however, that I trade the pig to someone in another village for a chicken and that the trade is a fair one. According to the definition above,

I am

entitled to the chicken,

since I have satisfied clause 2 by getting it in a fair trade from someone who was entitled to it. The holder of the pig, however, is not entitled to the pig, since I wasn't entitled to it before our trade and clause 2 thereby goes unsatisfied. This result seems to be counterintuitive. If one of us is to lack entitlement, it seems he should be me. More likely both of us ought to lack entitlement to our holdings. At least, a rectification would probably adjust the holdings of both of us. This problem seems to be most naturally solved by modifying the second clause of the definition to read: (2)') A person who acquires a holding in accordance with the principle of justice in transfer, where all parties to the transfer are entitled to their holdings, is entitled to the holding.

Of course, such a modification may result in the nonentitlement of individuals to goods spreading plaguelike after an injustice. Such outbreaks will require doctoring with heavy doses of the rectification principle. Now we are ready for the second part of the entitlement theory, the principle of distributive justice. Nozick puts it in this way (151): The complete principle of distributive justice would say simply that a distribution is just if everyone is entitled to the holdings they possess under the distribution.

But this definition seems unsatisfactory. Suppose, for example, that I, a believer in the voleano god, became convinced that propitiation of the god is required in order that our island remain untroubled by eruptions of lava and ash. Suppose further that the distribution of goods among us is just. One night I go through our

Noxzick’s Entitlement Theory village stealing all the goods I villagers. I load the goods in my rim. At this moment the theory everyone except me is entitled to

347

can without arousing my fellow cart and drag them to the crater’s of justice in holdings tell us that the holdings he has. The principle

of distributive justice tells us nothing about such a case, since the

principle is an implication rather than an equivalence, but it seems likely that Nozick would want it to say that the distribution is unjust. Now I tip the cart into the crater in a frenzy of vulcanistic devotion and all is incinerated. The theory of justice in holdings tells us that everyone is entitled to the holdings he possesses. Therefore the principle of distributive justice tells us that the present distribution is just. This conclusion is not likely to appeal to those of my fellow villagers whose property I purloined in the night. Nor is it likely to appeal to the reader that, according to the theory, one might change an unjust distribution into a just one merely by destroying the holdings to which one was not entitled. Nozick says something on page 151 which suggests a way out of this difficulty: A distribution is just if it arises from another just distribution by legitimate means. . . whatever arises from a just situation by just steps is itself just.

What Nozick is (accurately) describing here is the transitivity of justice under his recursive definition. But the vulcano-votive example is problematic because the principle of distributive justice says the wrong thing about “just” distributions arrived at in unjust ways. It seems that the best solution to this difficulty is to recast the principle of just distribution along the lines of the passage quoted above, in the form of an inductive definition: (1) The distribution in which nobody has anything and nobody has ever had anything is a just distribution. (2) A distribution arrived at in accordance with the principle of rectification is a just distribution. (3) A distribution derived from a just distribution in such a way that nowhere in the derivation did people acquire goods to which they were not entitled is a just distribution. (4) No distribution is just except those derived through (re-

peated) applications of (1)-(3).

348

Lawrence Davis

Here clauses 1 and 2 are the base clauses and clause 3 is the induction clause. The theory of justice in holdings is employed in clause 3. A principle of distributive justice based on this definition seems to do what Nozick wants done. Now that we have it in a more workable form, we need to look closely at one of its most important parts, the principle of rectification. Here is what Nozick says about it: Idealizing greatly, let us suppose theoretical investigation will produce a principle of rectification. This principle uses historical information about previous situations and injustices done in them. . . and information about the actual course of events that flowed from these injustices, until the present, and it yields a description (or descriptions) of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred, using the expected value) if the injustice had not taken place. If the actual description of holdings turns out not to be one ofthe descriptions yielded by the principle, then one of the descriptions yielded must be realized (152/3).

Aside from this passage we are not told a great deal about the rectification principle, and this is unfortunate because it seems to be the most problematic part of the entitlement theory. It is certainly an essential part; for, without it, owing to the inductive nature of the

definition of entitlement, if there has been a single injustice in the history of a state, no matter how far back, the state will not be able to achieve ajust distribution of goods in the present. Let us consider the principle’s weaknesses and attempt a reformulation. The principle of rectification tells us to follow a procedure something like this: Given an unjust distribution, go back to the last just distribution. Pretend that our lives are taking place in a movie projected

on

a screen

with

many,

many

projectors

pointed

at it.

Project the movie we are in until a frame containing an injustice is projected. At that frame, turn off the present projector and turn on the projector containing the most likely movie of our lives up to this point, with the injustice written out of the script. Run that projector, starting from the frame at which the first movie was stopped. Continue

projecting until a frame containing an injustice is pro-

jected, or until a frame depicting the present is projected. Ifaframe containing an injustice is projected, stop the projector and turn on

Nozick’s Entitlement Theory

349

the projector containing the most likely movie of our lives up to that point, with the injustice written out of the script. Run this projector from the frame at which the other was stopped. Continue in this way until a frame depicting the present is projected. Stop the projector at that frame, make a list of who has what, and realize the distribution of goods in that list. Now a just distribution has been arrived at and the effects of all previous injustices have been wiped out. This theory, with its promise of being able to wipe the slate clean of past injustices, is appealing to those of us who feel that our present distribution of goods may not be completely just. But, as the theory is stated, the possibility of correcting past injustices is ruled out for us, and a good many everyday situations in which we would normally say that injustices have been corrected will not count as rectifications.

This result comes

about because,

according to the

theory, injustices may be rectified only by realizing the distribution of holdings in the present frame of the rectified movie of our lives. It follows from this that if some member of the set of goods in that distribution does not exist, no rectification is possible. A trivial example of this would be my stealing a banana from a neighbor and eating it. As the theory stands, rectification cannot be brought about, for the rectified movie of our lives would include the

(eaten) banana as a part of my neighbor's holdings, and we cannot realize that distribution. I could give my neighbor a thousand bananas, but the theory would not rule such restitution rectification.

This problem will become acute in cases concerning an injustice that has drastically altered the subsequent flow of events. For example, suppose that my clan becomes disgruntled at the unenlightened agricultural practices employed on our island and the measly benefits we gain from them. One day we take over the communal farmlands by force and begin to raise bananas. After several years the banana boats come and we make a fortune for everybody by trading bananas for medical supplies, qualified teachers,

books,

etc. We

then turn the fields back to our fellow

islanders and everybody is happy raising bananas. It seems that Nozick would approve of our act on balance. We have displayed the sort of initiative and intelligent employment of resources that he applauds (except possibly for our returning of the fields). But as the theory stands, there is no way we may rectify the injustice of our appropriation of the farmlands, for without the

350

Lawrence Davis

injustice we would have continued to raise our crops of spindly coffee bushes, trading what wretched harvests we made for whiskey and beads from the coffee boat. Because of our agronomical savoir faire everybody is much happier than before, and everybody prefers the way things are to the way they would have been without the injustice. But there is very little of the rectification set of holdings on the island with which

to bring about a rectification,

and the

entitlement theory tells us that the situation cannot be righted. Nozick might leave the rectification principle as it is and swallow such consequences, but this does not seem to be consistent with his

theory of compensation given in Part I of his book. There a person who has been transgressed against is raised to at least as high an indifference curve as he would have been on had the transgression not taken place, and this constitutes compensation for the transgression. Note that this theory says nothing about the identical goods which the person would have had if untransgressed against; instead the relevant notion is that of being indifferent between the state with no transgression occurring and a compensated present state. If Nozick is to be consistent it appears that he will use the notion of indifference here too. These considerations suggest the following restatement of the rectification principle: To achieve a rectification, go back to the time of the last just distribution and project events forward in the most likely way without the injustices. Figure out what the present set of holdings would be in the projection so derived. Create a rectification distribution by giving everybody at least enough goods to make them indifferent between their holdings in the projected distribution and the rectification distribution.

This principle seems to avoid the difficulties of the last, and it is

faithful to the spirit of earlier passages in the book. But before going on we ought to note three things about it. First, it will not be applicable in any case in which there are not enough goods available at the time of the rectification to put everyone on the appropriate indifference curve, but that may be all right. Perhaps, if we can’t get things to be as good as they would have been without injustice, then there really is no way to rectify affairs. Second, the rectification principle in this form allows for many

Nozick’s Entitlement Theory

351

different rectification distributions whenever there are more than enough goods available to raise everyone to the appropriate indifference curve. Let us assume that the theory includes some way to rank these distributions so that only one of the possibilities is the rectification distribution. Finally, we ought to note that, in both its original and its amended forms, the principle of rectification will probably not help us if we attempt a full-scale rectification of the injustices in our societys past, for were we to project the 200 years of our country’s history in a rectified movie, the cast of characters would surely differ significantly from the existing cast. Had our ancestors lived and moved in a rectified version of our history, quite likely many of us would not be alive today. The theory, then, seems to be satisfactory only for cases in which the existing cast of characters is identical with the cast of characters in the present frame of a rectified movie. If the existing cast contains a member who does not appear in the rectified movie, the theory would seem to assign nothing to that member. This is surely an unfair consequence of the theory. And of course, if the cast contains members who do not appear in actuality, we are not told how to distribute their goods. We assume for the sake of subsequent discussion that this sort of problem will be cleared up, and we now move to more general comments on the theory. THE

ENTITLEMENT

THEORY

AND

ITS RIVALS

We have discussed two versions of the entitlement theory: Nozick’s and an amended form. Nozick’s version of the theory works well in the context of his book, but the amended version proposed here does not do nearly so well. The reader may know that in Part I of Anarchy, State, and Utopia Nozick argues that an ultraminimal state may arise in a morally acceptable way. Part IH is devoted to upholding the claim that a more-than-minimal state is not morally acceptable. The entitlement theory is produced in order to counter the claim that a more-than-minimal state is justified in order to achieve and maintain a just distribution of goods. Nozick’s counter consists of the argument that the other theories of just distribution

ooo

Lawrence Davis

of goods are incorrect but the entitlement theory is not, and he implies that an ultraminimal state will be able to implement the entitlement theory. The dominant theme in Nozick’s attack on opposing theories of just distribution of goods is that the implementation of the other theories (to each according to his need, for example, or various versions of utilitarianism) will require wresting property from people entitled to it in order to give it to people who have done nothing to earn it. Nozick stresses the point that only the entitlement theory recognizes the fact that goods come encumbered with entitlements which ought to be preserved. This observation is correct, given Nozick’s formulation of the entitlement theory. But, when the theory is amended as suggested above, the difference in this respect between it and its rivals is not

so pronounced. For example, let us suppose that we discover two sailors who have been shipwrecked on our island for the last twenty years. At the time of the shipwreck Jones tucked his machete into his belt before leaping into the sea, swam to shore, and passed out. Smith took nothing with him when he swam to shore, but he compensated for his lack of foresight by appropriating Jones's machete while Jones slept. For twenty years Smith has used the machete to construct a large hut, irrigate gardens, build traps and enclosures for wild animals, and furnish his hut in luxurious style. If he had not stolen the machete he would have done little, but the machete has become a symbol of civilization for him, spurring him into hewing a stylish existence from the jungle. Jones, however, awakened and assumed his machete had been lost in the surf. For twenty years, without the tool which Smith has used to such effect, Jones has lived an idle life. As time has passed Jones has degenerated into a brutish drinker of palm wine, although he would have achieved as much as Smith in the way of material comfort had he kept his machete. There is an injustice to be rectified here, for theft is presumably not a just means of transfer of holdings. According to the entitlement theory, we rectify affairs by projecting events forward without the injustice. We see that the roles of the two castaways would have been reversed had the original theft not occurred. Hence we rectify the injustice by giving all of Smith’s goods to the drunkard Jones and

Nozick's Entitlement Theory

Bo0

giving Jones's few possessions to Smith. Smith’s protests that his goods were rightfully taken from a state of nature at great expense of time and labor will count for nothing, nor will his protests that Jones will allow the gardens to become overrun, the herds to run away, and the hut to fall to ruin. It may come about, then, that employment of the rectification principle, even in its original form, will result in goods being taken from individuals who appear to be entitled to them. Further, when we consider the operation of the theory as amended in this paper, we see that it becomes as much an indifference as an entitlement theory; for, on the amended theory, it is on indifference curves rather than on historical entitlements that rectification distributions are based. The effect of the amendments suggested here, then, is to eliminate a good deal of the entitlement from the entitlement theory, thereby weakening Nozick’s arguments against the opposition.

It appears that Nozick is presented with a dilemma. If the entitlement theory remains as he has presented it, then a good many small injustices will be declared unrectifiable, merely because some member of the set of goods in the rectification distribution happens not to exist. On the other hand, if the tack proposed here is taken and the rectification principle is formulated in terms of indifference curves, then our intuitions about correcting injustices will be upheld, but the theory will cease to preserve entitlements to particular objects. Nozick has given us a new and ingenious theory ofjust distributions. His attempt to clear away the opposition appears to have failed, but he has articulated another point of view from which to

assess the justness of the patterns of holdings around us. Let us conclude by noting the striking differences between the entitlement theory and two of its rivals. In the example of the shipwrecked sailors, a Marxist, distributing to each of the two members of the society according to his needs, would divide the goods evenly between Smith and Jones and declare the result a just distribution. Some utilitarians, noting that Smith will derive much more utility

from the goods than Jones, would leave things much as they are and declare the result a just distribution. An entitlement theorist would reverse the holdings of the two castaways and declare the result a

354

Lawrence Davis

just distribution. These three theories, one looking to the present, one

to the future,

and one

to the past,

give us quite different

versions of what the correct apportionment of holdings ought to be. Which of them, if any, is correct? In the wake of Nozick’s book, this question is likely to attract a good deal of attention. *This paper owes a good deal to the comments and criticisms of Professor Robert Paul Wolff.

18 The New Indian Claims

and Original Rights to Land DAvID THE

NEW

LYONS

INDIAN

CLAIMS

Most Americans take this country’s possession of its territory for granted, even though we all know that a great deal of its land was wrested by force or fraud from those who occupied it before the Europeans came—from Native Americans, who were dispossessed and either massacred or subjugated, the survivors displaced from their homelands and in large part consigned to live on shrinking reservations. The monumental theft of land that was involved in the European conquest of America is regarded as a neutral fact about the past with little, if any, practical bearing on the present. It is that attitude that I ask you now to suspend, if you have not done so already. I assume here not only that the socially weak and disadvantaged condition of Native Americans in our society represents a wrong it is incumbent on us to right, but also that their dispossession may call for significant rectification. I shall concentrate on the latter issue because the serious possibility of radical social surgery to correct it must now be contemplated. The unthinkable idea of giving the land back to the Indians has suddenly become thinkable. 355

356

David Lyons

Early in its constitutional career, in 1790, Congress passed the Indian Nonintercourse Act, which requires that all transfers of lands from Indians to others be approved by the federal government. The Act was modified from time to time over the next forty-odd years, but it was not changed in any relevant respect, and it remains in effect today. Its purpose is clear. It was meant to guarantee security to Native Americans against fraudulent acquisition by others of the Indians’ allotments of land. Such guarantees were plainly needed. By 1790, expropriation had been practiced by Europeans for nearly two centuries. Fraudulent land acquisitions by colonists had been a source of friction between them and the British government, which

occasionally leaned towards protecting Native Americans. Security for Indian land was an important bargaining point during the Revolutionary War, when Indian support or at least neutrality was desparately needed by the rebellious colonists. The Nonintercourse Act of 1790 pledged federal security for Indian land holdings. Under it, the federal government is bound to act as guardian or trustee, overseeing all transfers of Indian lands, including those to states and other branches of government as well as to private parties. Several suits that have recently been initiated by American Indian tribes for recovery of lands held by them when the Nonintercourse Act took effect in 1790 invoke this law. It is alleged that certain transactions by which lands were subsequently lost to them are invalid because federal approval was neither sought nor obtained in those cases. Those historical facts have not been contested. A great deal is at stake. Some of the suits concern hundreds, others thousands, of acres. The largest tract, claimed by the Penobscot and Passamaquoddy tribes, amounts to twelve and a half million acres in Maine, comprises more than half the state, and has a value estimated at twenty-five billion dollars.? In some cases, recovery of the lands is being effected smoothly, as in Gay Head, on Martha’s Vineyard, off Cape Cod, where voters have approved the transfer of about two hundred fifty acres back to the Wampanoag. But that is an atypical case, since the land is undeveloped and has always been reserved for public use, which is what the Gay Head branch of the Wampanoag wish to secure it for, and about half the voting residents are Wampanoag descendants. More typical, perhaps, is the claim in Mashpee, on Cape Cod, where another branch of the Wampanoag is seeking to recover

New Indian Claims and Rights to Land

3O7

jurisdiction over about seventeen thousand acres, comprising most of the town of Mashpee, in an area that is currently undergoing rapid commercial development. That suit has thrown a cloud over land titles, freezing real estate transactions and development. Since Indian lands are not subject to local taxation, it has also disrupted thé sale of municipal bonds. The professed aim of the claimants is reportedly not to dispossess current homeowners or active businesses. A prime objective is to regain lost hunting and fishing rights; another is to reassert control over the portion of the land that remains undeveloped, in order to inhibit such development. Almost all of the undeveloped land at issue in these suits, however, has passed into private hands. Consider the situation in Maine. Although the claims there embrace populated areas, including whole cities and towns, they chiefly concern, and the tribes appear chiefly interested in, vast tracts that are not only undeveloped but are, unlike the Mashpee claim, unlikely to undergo any ordinary commercial development. For these are mainly huge forest reserves that are owned by paper companies and related interests. These lands will not be returned to the Indians without a bitter struggle. At first the claims were not taken seriously. But once they began to receive favorable attention in the federal courts, current owners—especially the large landed interests in Maine—began to mobilize a political campaign against recovery by the Indians. Their concern and the subsequent political maneuvering is understandable. Federal court decisions have affirmed federal responsibility in such cases, whether or not the federal government has officially recognized the tribes in question,? and they have dismissed as inapplicable the various standard defenses, such as adverse possession (which invokes a statute of limitations on claims), laches (which invokes a similar doctrine in the law of equity), and estoppel by sale (which would use the prior transactions as a bar to recovery).4 The law seems clear: any title to Indian land that has been obtained without explicit federal approval is null and void. It does not follow—either legally or morally—that all of the land in question must be returned to the Indians. But an observer might well suppose that some, at least, of the lands should be restored to them. I wish to examine that idea, not only to help us in determining what justice requires, but also to evaluate some lines of reasoning in support of and in opposition to it. For the most natural

David Lyons

358

arguments that might initially be advanced on both sides of the issue—arguments that appear to be implicit in the rhetoric already surrounding these cases—center on what we, following Robert Nozick,® might call “historical” considerations affecting social justice. These cases give us an opportunity to scrutinize Nozick’s conception of justice and, more generally, the idea of a right to property.

THE

HISTORICAL

ENTITLEMENT

ARGUMENTS

Suppose that one is aware of the current plight of Native Americans and its background. This might understandably make one sympathetic to the new land claims. But it is incumbent on one to ask: What are the moral foundations of such claims? How can they be defended, not so much in a court of law as in the court of conscience? One natural (one might almost say naive) way of reasoning about the claims is this. Native Americans were the first human occupants of this land. Before the European invasion of America, the land belonged to them. In the course of that invasion and its aftermath, the land was illicitly taken from them. The rightful owners of the land were dispossessed. The current owners lack a well-founded right to the land, which now lies illicitly in their hands. Ideally, the land should be restored to its rightful owners. This may be impractical; compromises might have to be made. But the original wrong can most easily be righted by returning the land to them—or by returning it wherever that is feasible. This sort of argument turns upon the idea of original acquisition and, somewhat

less directly,

on

the idea of legitimate

transfer.

Without original acquisition by the Indians, they might have had no rights to the land that dispossession was capable of violating. The argument concerns legitimate transfer by claiming that the transfers by which the Indians lost the lands were illegitimate. The argument also assumes that rectification in these cases is, at least in principle, most straightforward. Injustice is corrected, justice is done, by restoring the land to its original and still rightful owners. That is a most important feature of the argument. For, if correct, it means that we can avoid getting bogged down in the

New Indian Claims and Rights to Land

359

uncharted territory of compensatory or reparative justice. Without

that assumption, the problem has no easy solution, even in theory. A frequent reply to the current claims is that one cannot simply ignore two hundred years of history. Those who now possess the land did not, in fact, secure it illicitly. They obtained it from others, by purchase, gift, and inheritance. To find illicit land transfers, we would have to trace the chain of transactions back several generations. But all of that is, by now, dead history. Somewhere along the line, custom and settled expectation generated new rights to the land. And it is these rights, not some long extinguished “original” right, that must now be enforced. This line of reasoning has much in common with the usual defenses against claims whose foundations go far back into the past. The defense of adverse possession, for example, rests on the rule that one cannot validly reclaim property after a certain period of time has passed, during which one has registered no complaint about another's misappropriation. Such a defense has been ruled inapplicable to the current cases, as we have seen. But that is not decisive here, when we are concerned with the moral foundations for such claims; it might simply amount to a legal technicality, which has only limited implications about what is right and what is wrong. If adverse possession is in general a reasonable defense against such claims, it might be legally inapplicable here only because of a strange quirk in the law. But I shall not pursue that complex matter now. Any defense against such claims is also likely to rely upon inheritance, and this issue will be more central to our concerns in

this paper. In what follows, my purpose will be to challenge these naive arguments, on both sides of the issue, by throwing doubt upon property rights as we usually think of them. I shall suggest that property rights, including rights to land, are thinner and much more flexible,

or

variable

with

circumstances,

than

these

arguments

allow. If that is so, our whole way of looking at such matters may require radical revision.

Let me relate this now to Nozick’s theory of justice. We are dealing here with property, on which Nozick concentrates, and the particular

issues

in the case

theory—acquisition

and

correspond

transfer.

The

to major

two

main

aspects

of his

elements

of

360

David Lyons

Nozick’s theory are what he calls “the principle of justice in acquisition” and “the principle ofjustice in transfer.” The former concerns the circumstances in which one can acquire rights to things by appropriating them. The latter concerns the ways in which one can receive rights from others, such as gifts, inheritance, and exchange. Many textbook theories of justice ignore historical factors, especially those involving voluntary transfer. Some theories imply, for example, that I possess a thing unjustly unless I can be said to merit or deserve it. Nozick reminds us, however, that justice does not frown upon gifts and favors, charity and generosity, and fair bargains. One can obtain things by such means without meriting or deserving them—and yet without any injustice being done. Historical factors are thus relevant to justice, and any adequate theory must accommodate

them.

It does not follow (nor is it true)

that Nozick’s theory alone is capable of accommodating them. In fact, Nozick goes to the opposite extreme, exaggerating the role of historical considerations. Nozick defends the following thesis: to establish the moral foundations of one’s ownership of a thing, it may not be necessary to show that one’s ownership fits into some preferred social pattern, such as equality. It may suffice to show that one obtained the thing in accordance with the principle of justice in acquisition or the principle of justice in transfer. This is significant because voluntary transfers can upset preexisting patterns of distribution, such as equality. If the results of such transfers are unobjectionable, then patterns cannot exhaust the important truths about social justice. Nozick’s examples tend to show that historical factors are relevant to matters of justice, independently of other factors. That is an important point; but Nozick tries to stretch it further. From the claim that historical factors are relevant he seems to infer that they are the only factors relevant to justice, that all other considerations are irrelevant, such as merit and desert and the relative distribution of benefits and burdens in society. But the latter simply does not follow from the former, and it may very well be false. In this paper I shall argue that Nozick’s theory incorporates another exaggeration—the notion that property rights, once legitimately acquired, are virtually unaffected by circumstances. I shall then show how this undermines the historical entitlement argu-

New Indian Claims and Rights to Land

361

ments concerning Indian land claims. But I argue, finally, that it does not defeat the current claims. ORIGINAL

ACQUISITION

Let us first consider the idea of original rights to land. How are such rights to be understood? Locke is one of the few writers to discuss the subject, so it seems reasonable to begin with his view of it.® Locke says that one acquires property, originally, by “mixing one’s labor” with an unowned thing, or something that belongs to all humanity in common. ($27) Locke clearly means us to take this notion of “mixing one’s labor” with a thing very loosely—to cover, for example, one’s picking up an acorn with a view to eating it. ($28) But, as Nozick observes,’ there are problems with this notion. The limits of what I can acquire in this way are radically indeterminate. If no one yet owns them, can I make the oceans my own property by simply stirring water at the shore? More fundamentally, it is not clear why mixing my labor with a thing that I do not own is a way of acquiring that thing rather than a way of losing my labor. When Locke applies his general theory to the acquisition of land he obtains a doctrine that is at least much clearer. He says that one must cultivate the soil, make it productive agriculturally, and be able to consume its products. ($32) Mixing one’s labor with a parcel of land in this way removes it from the common stock of land that has been provided for all humanity and gives one original title to it. This cultivation test seems natural enough—so long as we assume that cultivation is the only proper way of using land. But a moment's reflection reminds us that, even for the purpose of obtaining food, land can effectively be used in other ways—hunting, gathering, and herding, for example. And, of course, land can be used in ways unrelated to food production. Locke was aware of this. How, then, did he justify his narrow cultivation test? His reasoning is suggested by the following passage which Locke had added to the collected edition of his works: [H]e who appropriates land to himself by his labor does not lessen but increase the common stock of mankind; for the provisions serving to the support of human life produced by one acre of enclosed and cultivated land are—to speak much within compass—ten times more than those which are

362

David Lyons

yielded by an acre of land of equal richness lying waste in common. And therefore he that encloses land, and has a greater plenty of the conveniences of life from. ten acres than he could have from a hundred left to nature, may truly be said to give ninety acres to mankind; for his labor now supplies him with provisions out of ten acres which were by the product ofa hundred lying in common. ($37) Locke maintains, moreover, that “there is land enough in the world

to suffice double the inhabitants,” provided it be cultivated. (§36) By his reckoning, there is not a fifth enough land for all the people of the world if none of it is cultivated. The argument therefore seems to be that, by enclosing and cultivating land, one actually performs a service to others. If I appropriate and cultivate only so much land as I require for my own subsistence, I thereby release land to others that I would have needed to support myself by hunting on it or gathering food from it. Cultivation involves the far more efficient use of land, from which all benefit. Most important, the failure to cultivate suitable land results in privation for a corresponding number of people. Nozick appears to reject Locke’s theory about the original acquisition of land. The argument suggests a utilitarian rationale for property rights, which Nozick regards as unacceptable. And, even within its utilitarian framework, the argument is not very promising as a way of showing that cultivation is the only legitimate basis for acquiring unowned land. The empirical premises of the argument are dubious, and alternative grounds of appropriation seem possible. More importantly, Nozick, as we have seen, raises skeptical doubts about Locke's general theory of property acquisition. Nozick’s alternative account appears to be that appropriation alone is sufficient for the legitimate acquisition of property, provided that a certain condition is satisfied. Nozick calls this the “Lockean proviso”; this is a requirement Locke included in his own theory, that “enough and as good” of whatever is being appropriated be left for others. (§27) If enough and as good land is left for others when one appropriates land, the appropriation is legitimate, justice is done,

and

one

acquires

a right to the land.

Otherwise

the

appropriation is illegitimate and one acquires no right to the land. Let us suppose, for the sake of argument, that some sort of right to land can be established, and also that Native Americans established original rights to land in the Americas before the European

New Indian Claims and Rights to Land

363

invasion, land that was later taken illicitly by some of the invaders. The question we must face is, what difference that can make today. The argument invoking original rights to land in support of the current Indian land claims assumes that original rights are very stable. They are unaffected by changes in circumstances, because they are still valid today despite the passage of history. They are also largely independent of the institutions that are internal to a society. That is to say, they do not merely regulate relations within a community, but also relations between the community and the outside world. For these original rights are supposed to set limits on the conduct of persons outside Indian society; they are supposed to be valid claims relative to nonassimilating Europeans. It may be useful here to distinguish between two different kinds of moral rights to property. There may be morally defensible property rights within a given social system, taking into account the laws and other social rules governing property and the general circumstances of the community. The moral justification of claims couched in terms of such rights makes essential reference to social rules and circumstances. For the reasons just given, it is doubtful that original rights to land can be of this type. At least, the arguments invoking them ignore radical shifts in circumstances and fail to explain how ancient Indian institutions have a direct bearing on current claims to land. The original rights to land that are invoked would seem to be strictly nonconventional and inherently stable rights, which are not relative to social rules or circumstances.

I shall argue here that moral rights to property are not so stable.

INHERITANCE

I can best begin by considering the inheritability of rights. This is an appropriate point of departure because Nozick takes for granted that property rights are inheritable, and inheritance would seem to be involved in the argument concerning the current claims. After discussing

inheritance,

I shall go on to consider

other common

features of property rights. Inheritance may appear to be a factor in the naive argument supporting the Indian claims because the current members of the tribes that are suing for recovery of lands once held by them are not the same individuals who belonged to those tribes when the land

364

David Lyons

was acquired or when the contested transfers were made. The current members are descendents of those individuals. If the current members have valid claims to the land, claims deriving from their ancestors’ original rights, it would seem that those rights must have been passed down through the generations by means of inheritance. That is, interestingly, not the case. The current claims are being made, not on behalf of individual Native Americans

who are sup-

posed to have inherited ordinary property rights in land (or shares in a land-owning company) from their ancestors, but rather on behalf of entire tribes collectively. The land was originally held in common by the tribes, and that is how the land would be recovered. A tribe is a continuously existing entity, like a nation, that spans the relevant generations of human beings. Its ownership of land is like the possession by a nation of its territory. Its ownership need not be thought of as involving transfer from one individual to another by inheritance or any other means. So inheritance would not seem to be an element in the Indian claims based on original rights. That gives us one way of distinguishing between the opposing arguments—for inheritance is almost certainly an element in the arguments on the other side. Most of the land in question has long been in private hands. It is virtually certain that inheritance has been involved in transfers from one generation to another since the contested transfers took place. It is, admittedly, conceivable that land (or shares in a land-owning company) should be transferred from one individual to another over an indefinite period without inheritance entering the picture. But it is extremely unlikely in the current cases. So, ifinheritance is suspect, then some of the objections to the current claims—those based upon inheritance—are suspect too.

I wish to throw some moral doubt on claims based upon inheritance; but that is a secondary purpose. What I mainly wish to show is that inheritability cannot be an essential feature of moral rights to property. This is because the moral acceptability of inheritance is relative to circumstances. And I wish to do this, not by rejecting historical factors affecting justice, but rather by developing them beyond the point at which Nozick stopped. My argument will not be that inheritance is morally objectionable from a nonhistorical point

New Indian Claims and Rights to Land

365

of view (that may well be true, but will not be considered here). My argument will be that inheritance can undermine justice in transfer, and thus can be objectionable from an historical point of view. Nozick’s idea is that transfers are legitimate and their outcomes are consequently morally unobjectionable when they are voluntary and do not violate the Lockean proviso. The theoretical model for this idea has been provided by John Rawls, who distinguishes between “perfect” and “imperfect” procedural justice, on the one hand, and “pure” procedural justice on the other.® Perfect and imperfect procedural justice are virtues of transactions based upon the real or likely outcomes of the transactions. Pure procedural justice is a virtue of transactions that derives from the character of the processes themselves. Thus, the results of a lottery are morally unobjectionable when the lottery itself has certain characteristics and is consequently fair. Bargains and agreements can be judged in this way too. Their outcomes are morally unobjectionable when the bargains and agreements themselves are fair. Iam not sure whether the applicable notion of fairness is captured by Nozick’s requirement that transfers be voluntary and not violate the Lockean proviso; but I doubt it. At any rate, bargains and agreements are not fair unless fraud as well as force is absent and the parties are (roughly speaking) equal and informed as well as free. Now,

one

trouble

with

inheritance

is that it often

promotes

concentrations of wealth and power. This is not an egalitarian objection. My point is, rather, that concentrated wealth and power is able to impose its will on smaller and weaker parties, thus creating bargains, agreements, exchanges, and social arrangements generally that are unfair. Extremes of power undermine the legitimacy of social processes, and the outcomes cannot be assumed to be morally unobjectionable. (If they are unobjectionable that will be so by virtue of nonhistorical considerations.) In such circumstances, inheritance promotes injustice in transfer. Embedding inheritance into property rights would therefore create internal difficulties for historical principles. I do not mean to suggest that inheritance is intrinsically objectionable. The effects to which I refer are clearly relative to social conditions. Inheritance will have such consequences in some circumstances and not in others. Specific rules governing inheritance

366

David Lyons

may thus be justified in some circumstances. But it is implausible to suppose that inheritance is morally fundamental. Specific rules governing inheritance could not be incorporated into a basic principle ofjustice in transfer. Nozick appears to assume that inheritance is an indispensable feature of private property. He discusses original acquisition in such terms, as if one could not acquire property that was not permanent and inheritable. The alternative possibility is never considered. But that is surely a mistake. The idea of a right to property does not entail that it be inheritable. That is simply one possible form that property rights can take. And, of course, inheritance as we know it is a straightforwardly conventional

arrangement,

a certain type of economic

institution.

Its moral justification is the justification of an institution, which must take social circumstances into account. An heir can morally defend his claim to some (conventionally) inherited thing only by appealing to the rules of such an institution. His claim is morally successful, so to speak, only if the institution itself is morally defensible. Nozick does not seem to look at inheritance in this way. He seems to assume that an heir could defend his claim to some inherited thing without making any reference to laws and other social rules. He appears to assume, more generally, that the morally supportable property rights that we have correspond precisely to moral rights that do not presuppose any laws or other social rules. That is another mistake, based perhaps on a failure to distinguish between morally defensible property rights within a given social system, the justification of which is relative to social rules and circumstances, and moral rights to property that are not relative to social rules or circumstances. We