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NozickExcerpt
Notes and Questions
ROBERT NOZICK, from Anarchy State, and Utopia
1. Robert Nozick defends liberal individualism and private
ownership using his own development of Lockean natural rights theory. Ownership
is justified, according to Nozick, if it is (a) justly acquired or (b) justly
transferred and (c) not subject to the principle of rectification. Explain
these three principles.
2.Nozick discusses the distinction between historical
and end-state or patterned theories of property distribution. How does a
patterned theory of distribution work? Do you agree with Nozick that F. A.
Hayek’s theory is a patterned theory? How does Nozick’s own historical theory
work?
3. Nozick argues that freedom upsets patterns. Thus, any
patterned theory of distribution will require constant interference. How
does the Wilt Chamberlain example show that this is true? What does this
point amount to?
4. Nozick claims that taxation is equal to forced labor.
How does he argue for this claim?
5. How does Nozick explain Locke’s theory of acquisition
as he is using it? Does his use depart significantly from Locke’s own? If
so, in what way?
6. Does Locke’s proviso still hold, according to Nozick?
What are the two interpretations he offers for it? Which does he defend and
why? Reasonably interpreted, should Locke’s proviso have a great impact on
Nozick’s theory of property?
[From] Anarchy, State,
and Utopia
ROBERT NOZICK
The subject of justice in holdings consists of three
major topics. The first is the original acquisition of holdings, the
appropriation of unheld things. This includes the issues of how unheld things
may come to be held, the process, or processes, by which unheld things may
come to be held, the things that may come to be held by these processes, the
extent of what comes to be held by a particular process, and so on. We shall
refer to the complicated truth about this topic, which we shall not formulate
here, as the principle of justice in acquisition. The second topic concerns
the transfer of holdings from one person to another. By what processes
may a person transfer holdings to another? How may a person acquire a holding
from another who holds
Under this topic come general descriptions of Voluntary
exchange, and gift and (on the other and) fraud, as well as reference to particular
conventional details fixed upon in a given society. The complicated truth
about this subject (with place-holders for conventional details) we shall
call the principle of justice in transfer. (And we shall suppose it also
includes principles governing how a person may divest himself of a holding,
passing it into an unheld state.) If the world were wholly just, the following
inductive definition would exhaustively cover the subject of justice in holdings.
A person who acquires a holding in accordance with the principle
of justice in acquisition is entitled to that holding.
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.
No one is entitled to a holding except by (repeated) applications
of 1 and 2.
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.
A distribution is just if it arises from another
just distribution by legitimate means. The legitimate means of moving from
one distribution to another are specified by the principle of justice in
transfer. The legitimate first "moves" are specified by the principle of
justice in acquisition.1 whatever arises from a just situation
by just steps is itself just. The means of change specified by the principle
of justice in transfer preserve justice. As correct rules of inference are
truth-preserving, and any conclusion deduced via repeated application of
such rules from only true premises is itself true, so the means of transition
from one situation to another specified by the principle of justice in transfer
are justice-preserving, and any situation actually arising from repeated
transitions in accordance with the principle from a just situation is itself
just. The parallel between justice-preserving transformations and truth-preserving
transformations illuminates where it fails as well as where it holds. That
a conclusion could have been deduced by truth-preserving means from prenlisses
that are true suffices to show its truth. That from a just situation a situation
could have arisen via justice-preserving means does not suffice
to show its justice. The fact that a thief’s victims voluntarily could
have presented him with gifts does not entitle the thief to his
ill-gotten gains. Justice in holdings is historical; it depends upon what
actually has happened. We shall return to this point later.
Not all actual situations are generated in accordance
with the two principles of justice in holdings: the principle of justice in
acquisition and the principle of justice in transfer. Some people steal from
others, or defraud them, or enslave them, seizing their product and preventing
them from living as they choose, or forcibly exclude others from competing
in exchanges. None of these are permissible modes of transition from one
situation to another. And some persons
acquire holdings by means not sanctioned by the
principle of justice in acquisition. The existence of past injustice (previous
violations of the first two principles of justice in holdings) raises the
third major topic under justice in holdings: the rectification of injustice
in holdings. If past injustice has shaped present holdings in various ways,
some identifiable and some not, what now, if anything, ought to be done to
rectify these injustices? What obligations do the performers of injustice
have toward those whose position is worse than it would have been had the
injustice not been done? Or, than it would have been had compensation been
paid promptly? How, if at all, do things change if the beneficiaries and
those made worse off are not the direct parties in the act of injustice,
but, for example, their descendants? Is an injustice done to someone whose
holding was itself based upon an unrectified injustice? How far back must
one go in wiping clean the historical slate of injustices? What may victims
of injustice permissibly do in order to rectify the injustices being done
to them, including the many injustices done by persons acting through their
government? I do not know of a thorough or theoretically sophisticated treatment
of such issues.2 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
(as defined by the first two principles of justice and rights against interference),
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 of the descriptions yielded
by the principle, then one of the descriptions yielded must be realized.3
The general outlines of the theory of justice in
holdings are that the holdings of a person are just if he is entitled to
them by the principles of justice in acquisition and transfer, or by the
principle of rectification of injustice (as specified by the first two principles).
If each person’s holdings are just, then the total set (distribution) of
holdings is just. To turn these general outlines into a specific theory we
would have to specify the details of each of the three principles of justice
in holdings: the principle of acquisition of holdings, the principle of transfer
of holdings, and the principle of rectification of violations of the first
two principles. I shall not attempt that task here. (Locke’s principle of
justice in acquisition is discussed below.)
Historical Principles and
End-Result Principles
The general outlines of the entitlement theory illuminate
the nature and defects of other conceptions of distributive justice. The entitlement
theory of justice in distribution is historical; whether a distribution
is just depends upon how it came about. In contrast, current time-slice
principles of justice hold that the justice of a distribution is determined
by how things are distributed (who has what) as judged by some structural
principle(s) of just distribution. A utilitarian who judges between
any two distributions by seeing which has the greater sum of utility and,
if the sums tie, applies some fixed equality criterion to choose the more
equal distribution, would hold a current time-slice principle of justice.
As would someone who had a fixed schedule of trade-offs between the sum of
happiness and equality. According to a current time-slice principle, all
that needs to be looked at, in judging the justice of a distribution, is
who ends up with what; in comparing any two distributions one need look only
at the matrix presenting the distributions. No further information need be
fed into a principle of justice. It is a consequence of such principles of
justice that any two structurally identical distributions are equally just.
(Two distributions are structurally identical if they present the same profile,
but perhaps have different persons occupying the particular slots. My having
ten and your having five, and my having five and your having ten are structurally
identical distributions.) Welfare economies is the theory of current time-slice
principles of justice. The subject is conceived as operating on matrices
representing only current information about distribution. This, as well as
some of the usual conditions (for example, the choice of distribution is
invariant under relabeling of columns), guarantees that welfare economics
will be a current time-slice theory, with all of its inadequacies.
Most persons do not accept current time-slice principles
as constituting the whole story about distributive shares. They think it relevant
in assessing the justice of a situation to consider not only the distribution
it embodies, but also how that distribution came about. If some persons are
in prison for murder or war crimes, we do not say that to assess the justice
of the distribution in the society we must look only at what this person
has, and that person has, and that person has, .
at the current time. We think it relevant to ask
whether someone did something so that he deserved to be punished,
deserved to have a lower share. Most will agree to the relevance of further
information with regard to punishments and penalties. Consider also desired
things. One traditional socialist view is that workers are entitled to the
product and full fruits of their labor; they have earned it; a distribution
is unjust if it does not give the workers what they are entitled to. Such
entitlements are based upon some past history. No socialist holding this view
would find it comforting to be told that because the actual distribution A
happens to coincide structurally with the one he desires D, A therefore
is no less just than D; it differs only in that the "parasitic" owners
of capital receive under A what the workers are entitled to under
D, namely very little. This socialist rightly, in my view, holds
onto the notions of earning, producing, entitlement, desert, and so forth,
and he rejects current time-slice principles that look only to the structure
of the resulting set of holdings. (The set of holdings resulting from what?
Isn’t it implausible that how holdings are produced and come to exist has
no effect at all on who should hold what?) His mistake lies in his view of
what entitlements arise out of what sorts of productive processes.
We construe the position we discuss too narrowly
by speaking of current time-slice principles. Nothing
is changed if structural principles operate upon a time sequence of current
timeslice profiles and, for example, gives someone more now to counterbalance
the less he has had earlier. A utilitarian or an egalitarian or any mixture
of the two over time will inherit the difficulties of his more myopic comrades.
He is not helped by the fact that some of the information others consider
relevant in assessing a distribution is reflected, unrecoverably, in past
matrices. Henceforth, we shall refer to such unhistorical principles of distributive
justice including the current time-slice principles, as end-result principles
or end-state principles
In contrast to end-result principles of justice,
historical principles of justice hold that past circumstances
or actions of people can create differential entitlement or differential
deserts to things. An injustice can be worked by moving from one distribution
to another structurally identical one, for the second, in profile the same,
may violate people’s entitlements or deserts; it may not fit the actual history.
Patterning
The entitlement principles of justice in holdings
that we have sketched are historical principles of justice. To better understand
their precise character, we shall distinguish them from another subclass of
the historical principles. Consider as an example, the principle of distribution
according to moral merit. This principle requires that total distributive
shares vary directly with moral merit; no person should have a greater share
than anyone whose moral merit is greater. (If more merit could be not merely
ordered but measured on an interval or ratio scale stronger principles could
be formulated.) Or consider the principle that results by substituting "usefulness
to society" for "moral merit" in the previous principle. Or instead of "distribute
according to moral merit," or "distribute according to usefulness to society,"
we might consider "distribute according to the weighted sum of moral merit,
usefulness to society, and need," with the weights of the different dimensions
equal. Let us call a principle of distribution patterned if it specified
that a distribution is to vary along with some natural dimension, weighted
sum of natural dimensions, or lexicographic ordering of natural dimensions.
And let us say a distribution is patterned if it accords with some patterned
principle. (I speak of natural dimensions, admittedly without a general criterion
for them, because for any set of holdings some artificial dimensions can be
gimmicked up to vary along with the distribution of the set.) The principle
of distribution in accordance with moral merit is a patterned historical principle,
which specifies a patterned distribution. "Distribute according to 1.0."
is a patterned principle that looks to information not contained in distributional
matrices. It is not historical, however, in that it does not look to any
past actions creating differential entitlements to evaluate a distribution;
it requires only distributional matrices whose columns are labeled by 1.0.
scores. The distribution in a society, however, may be composed of such simple
patterned distributions, without itself being simply patterned. Different
sectors may operate different patterns, or some combination of patterns may
operate in different proportions across a society. A distribution composed
in this manner, from a small number of patterned distributions, we also shall
term "patterned." And we extend the use of "pattern" to include the overall
designs put forth by combinations of end-state principles.
Almost every suggested principle of distributive
justice is patterned: to each according to his moral merit, or needs, or
marginal product, or how hard he tries, or the weighted sum of the foregoing,
and so on. The principle of entitlement we have sketched is not patterned.4
There is no one natural dimension or weighted sum or combination
of a small number of natural dimensions that yields the distributions generated
in accordance with the principle of entitlement. The set of holdings that
results when some persons receive their marginal products, others win at
gambling, others receive a share of their mate’s income, others receive gifts
from foundations, others receive interest on loans, others receive gifts
from admirers, others receive returns on investment, others make for themselves
much of what they have, others find things, and so on, will not be patterned.
Heavy strands of patterns will run through it; significant portions of the
variance in holdings will be accounted for by pattern-variables. If most
people most of the time choose to transfer some of their entitlements to
others only in exchange for something from them, then a large part of what
many people hold will vary with what they held that others wanted. More details
are provided by the theory of marginal productivity. But gifts to relatives,
charitable donations, bequests to children, and the like, are not best conceived,
in the first instance, in this manner. Ignoring the strands of pattern, let
us suppose for the moment that a distribution actually arrived at by the operation
of the principle of entitlement is random with respect to any pattern. Though
the resulting set of holdings will be unpatterned, it will not be incomprehensible,
for it can be seen as arising from the operation of a small number of principles.
These principles specify how an initial distribution may arise (the principle
of acquisition of holdings) and how distributions may be transformed into
others (the principle of transfer of holdings). The process whereby the set
of holdings is generated will be intelligible, though the set of holdings
itself that results from this process will be unpatterned.
The writings of F. A. Hayek focus less than is
usually done upon what patterning distributive justice requires. Hayek argues
that we cannot know enough about each person’s situation to distribute to
each according to his moral merit (but would justice demand we do so if we
did have this knowledge?); and he goes on to say, "our objection is against
all attempts to impress upon society a deliberately chosen pattern of distribution,
whether it be an order of equality or of inequality."~ However, Hayek concludes
that in a free society there will be distribution in accordance with value
rather than moral merit; that is, in accordance with the perceived value of
a person’s actions and services to others. Despite his rejection of a patterned
conception of distributive justice, Hayek himself suggests a pattern he thinks
justifiable: distribution in accordance with the perceived benefits given
to others, leaving room for the complaint that a free society does not realize
exactly this pattern. Stating this patterned strand of a free capitalist
society more precisely, we get "To each according to how much he benefits
others who have the resources for benefiting those who benefit them." This
will seem arbitrary unless some acceptable initial set of holdings is specified,
or unless 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. In any event,
his coming to hold it is not arbitrary. Distribution according
to benefits to others is a major patterned strand in a free capitalist
society, as Hayek correctly points out, but it is only a strand and does
not constitute the whole pattern of a system of entitlements (namely, inheritance,
gifts for arbitrary reasons, charity, and so on) or a standard that one should
insist a society fit. Will people tolerate for long a system yielding distributions
that they believe are unpatterned?6 No doubt people will not long
accept a distribution they believe is unjust. People want their society
to be and to look just. But must the look of justice reside in a resulting
pattern rather than in the underlying generating principles? We are in no
position to conclude that the inhabitants of a society embodying an entitlement
conception of justice in holdings will find it unacceptable. Still, it must
be granted that were people’s reasons for transferring some of their holdings
to others always irrational or arbitrary, we would find this disturbing.
(Suppose people always determined what holdings they would transfer, and
to whom, by using a random device.) We feel more comfortable upholding the
justice of an entitlement system if most of the transfers under it are done
for reasons. This does not mean necessarily that all deserve what holdings
they receive. It means only that there is a purpose or point to someone’s
transferring a holding to one person rather than to another; that usually
we can see what the transferrer thinks he’s gaining, what cause he thinks
he’s serving, what goals he thinks he’s helping to achieve, and so forth.
Since in a capitalist society people often transfer holdings to others in
accordance with how much they perceive these others benefiting them, the
fabric constituted by the individual transactions and transfers is largely
reasonable and intelligible.7 (Gifts to loved ones, bequests to
children, charity to the needy also are nonarbitrary components of the fabric.)
In stressing the large strand of distribution in accordance with benefit
to others, Hayek shows the point of many transfers, and so shows that the
system of transfer of entitlements is not just spinning its gears aimlessly.
The system of entitlements is defensible when constituted by the individual
aims of individual transactions. No overarching aim is needed, no distributional
pattern is required.
To think that the task of a theory of distributive
justice is to fill in the blank in "to each according to his "is to he predisposed
to search for a pattern; and the separate treatment of "from each according
to his "treats production and distribution as two separate and independent
issues. On an entitlement view these are not two separate questions.
Whoever makes something, having bought or contracted for all other held resources
used in the process (transferring some of his holdings for these cooperating
factors), is entitled to it. The situation is not one of something’s
getting made, and there being an open question of who is to get it. Things
come into the world already attached to people having entitlements over them.
From the point of view of the historical entitlement conception of justice
in holdings, those who start afresh to complete "to each according to his
" treat objects as if they appeared from nowhere, out of nothing. A complete
theory of justice might cover this limit case as well; perhaps here is a use
for the usual conceptions of distributive justice.8
So entrenched are maxims of the usual form that
perhaps we should present the entitlement conception as a competitor. Ignoring
acquisition and rectification, we might say:
From each according to what he chooses to do, to
each according to what he makes for himself (perhaps with the contracted
aid of others) and what others choose to do for him and choose to give him
of what they’ve been given previously (under this maxim) and haven’t yet
expended or transferred.
This, the discerning reader will have noticed, has
its defects as a slogan. So as a summary and great simplification (and not
as a maxim with any independent meaning) we have:
From each as they choose, to each as they arc chosen.
How Liberty Upsets Patterns
It is not clear how those holding alternative
conceptions of distributive justice can reject the entitlement conception
of justice in holdings. For suppose a distribution favored by one of these
nonentitlement conceptions is realized. 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 dimension you treasure. Now suppose that Wilt
Chamberlain is greatly in demand by basketball teams, being a great gate
attraction. (Also suppose contracts run only for a year, with players being
free agents.) He signs the following sort of contract with a team: In each
home game, twenty-five cents from the price of each ticket of admission goes
to him. (We ignore the question of whether he is "gouging" the owners, letting
them look out for themselves.) The season starts, and people cheerfully attend
his team’s games; they buy their tickets, each time dropping a separate twenty-five
cents of their admission price into a special box with Chamberlain’s name
on it. They are excited about seeing him play; it is worth the total admission
price to them. Let us suppose that in one season one million persons attend
his home games, and Wilt Chamberlain winds up with $250,000, a much larger
sum than the average income and larger even than anyone else has. Is he entitled
to this income? Is this new distribution D2 unjust? If
so, why? 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. Each of these persons chose
to give twenty-five cents of their money to Chamberlain. They could
have spent it on going to the movies, or on candy bars, or on copies of Dissent
magazine, or of Monthly Review. But they all, at least one
million of them, converged on giving it to Wilt Chamberlain in exchange for
watching him play basketball. If D1 was a just distribution, and
people voluntarily moved from it to D2, transferring parts
of their shares they were given under D1 (what was it for
if not to do something with?), isn’t D2 also just? 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? Can anyone else complain
on grounds of justice? Each other person already has his legitimate share
under D1. Under D1 there is nothing that
anyone has that anyone else has a claim of justice against. After someone
transfers something to Wilt Chamberlain, third parties still have
their legitimate shares; their shares are not changed. By what process
could such a transfer among two persons give rise to a legitimate claim of
distributive justice on a portion of what was transferred, by a third party
who had no claim of justice on any holding of the others before the
transfers?9 To cut off objections irrelevant here, we might imagine
the exchanges occurring in a socialist society, after hours. After playing
whatever basketball he does in his daily work, or doing whatever other daily
work he does, Wilt Chamberlain decides to put in overtime to earn
additional money. (First his work quota is set; he works time over that.)
Or imagine it is a skilled juggler people like to see, who puts on shows
after hours.
Why might someone work overtime in a society in
which it is assumed their needs are satisfied? Perhaps because they care
about things other than needs. I like to write in books that I read, and
to have easy access to books for browsing at odd hours. It would be very
pleasant and convenient to have the resources of Widener Library in my back
yard. No society, I assume, will provide such resources close to each person
who would like them as part of his regular allotment (under D1).
Thus, persons either must do without some extra things that they
want, or be allowed to do something extra to get some of these things. On
what basis could the inequalities that would eventuate be forbidden? Notice
also that small factories would spring up in a socialist society, unless
forbidden. I melt down some of my personal 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
on my machine, whose products I exchange for yet other things, and so on.
(The raw materials used by the machine are given to me by others who possess
them under D1, in exchange for hearing lectures.) Each
person might participate to gain things over and above their allotment under
D1. Some persons even might want to leave their job
in socialist industry and work full time in this private sec....... Here
I wish merely to note 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 the socialist distribution D1.iO
The socialist society would have to forbid capitalist acts between consenting
adults.
The general point illustrated by the Wilt Chamberlain
example and the example of the
Entrepreneur in a socialist society is that no end-state
principle or distributional patterned principle of justice can be continuously
realized without continuous interference with people’s lives. Any favored
pattern would be transformed into one unfavored by the principle, by people
choosing to act in various ways; for example, by people exchanging goods and
services with other people, or giving things to other people, things the
transferrers are entitled to under the favored distributional pattern. To
maintain a pattern one must either continually interfere to stop people from
transferring 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. (But if some time limit is to be set on how long people
may keep resources others voluntarily transfer to them, why let them keep
these resources for any period of time? Why not have immediate confiscation?)
It might be objected that all persons voluntarily will choose to refrain
from actions which would upset the pattern. This presupposes unrealistically
(1) that all will most want to maintain the pattern (are those who don’t,
to be "reeducated" or forced to undergo "self-criticism"?), (2) that each
can gather enough information about his own actions and the ongoing activities
of others to discover which of his actions will upset the pattern, and (3)
that diverse and far-flung persons can coordinate their actions to dovetail
into the pattern. Compare the manner in which the market is neutral among
persons’ desires, as it reflects and transmits widely scattered information
via prices, and coordinates persons’ activities.
It puts things perhaps a bit too strongly to say
that every patterned (or end-state) principle is liable to be thwarted by
the voluntary actions of the individual parties transferring some of their
shares they receive under the principle. For perhaps some very weak
patterns are not so thwarted. Any distributional pattern with any egalitarian
component is overturnable by the voluntary actions of individual persons
over time; as is every patterned condition with sufficient content so as
actually to have been proposed as presenting the central core of distributive
justice. Still, given the possibility that some weak conditions or patterns
may not be unstable in this way, it would be better to formulate an explicit
description of the kind of interesting and contentful patterns under discussion,
and to prove a theorem about their instability. Since the weaker the patterning,
the more likely it is that the entitlement system itself satisfies it, a plausible
conjecture is that any patterning either is unstable or is satisfied by the
entitlement system.
* * *
Redistribution and Property Rights
Apparently, patterned principles allow people
to choose to expend upon themselves, but not upon others, those resources
they are entitled to (or rather, receive) under some favored distributional
patternD1. For if each of several persons chooses to expend
some of his D1 resources upon one other person, then that
other person will receive more than his D1 share, disturbing
the favored distributional pattern. Maintaining a distributional pattern
is individualism with a vengeance! Patterned distributional principles do
not give people what entitlement principles do, only better distributed. For
they do not give the right to choose what to do with what one has; they do
not give the right to choose to pursue an end involving (instrinsically, or
as a means) the enhancement of another’s position. To such views, families
are disturbing; for within a family occur transfers that upset the favored
distributional pattern. Either families themselves become units to which distribution
takes place, the column occupiers (on what rationale?), or loving behavior
is forbidden. We should note in passing the ambivalent position of radicals
toward the family. Its loving relationships are seen as a model to be emulated
and extended across the whole society, at the same time that it is denounced
as a suffocating institution to be broken and condemned as a focus of parochial
concerns that interfere with achieving radical goals. Need we say that it
is not appropriate to enforce across the wider society the relationships
of love and care appropriate within a family, relationships which are voluntarily
undertaken? Incidentally, love is an interesting instance of another relationship
that is historical, in that (like justice) it depends upon what actually
occurred. An adult may come to love another because of the other’s characteristics;
but it is the other person, and not the characteristics, that is loved.
The love is not transferrable to someone else
with the same characteristics, even to one who "scores" higher for these
characteristics. And the love endures through changes of the characteristics
that gave rise to it. One loves the particular person one actually encountered.
Why love is historical, attaching to persons in this way and not to characteristics,
is an interesting and puzzling question.
Proponents of patterned principles of distributive
justice focus upon criteria for determining who is to receive holdings; they
consider the reasons for which someone should have something, and also the
total picture of holdings. Whether or not it is better to give than to receive,
proponents of patterned principles ignore giving altogether. In considering
the distribution of goods, income, and so forth, their theories are theories
of recipient justice; they completely ignore any right a person might have
to give something to someone. Even in exchanges where each party is simultaneously
giver and recipient, patterned principles of justice focus only upon the
recipient role and its supposed rights. Thus discussions tend to focus on
whether people (should) have a right to inherit, rather than on whether people
(should) have a right to bequeath or on whether persons who have a right
to hold also have a right to choose that others hold in their place. I lack
a good explanation of why the usual theories of distributive justice are
so recipient oriented; ignoring givers and transferrers and their rights
is of a piece with ignoring producers and their entitlements. But why is
it all ignored?
Patterned principles of distributive justice necessitate
redistributive activities. The likelihood is small that any actual freely-arrived-at
set of holdings fits a given pattern; and the likelihood is nil that it will
continue to fit the pattern as people exchange and give. From the point of
view of an entitlement theory, redistribution is a serious matter indeed,
involving, as it does, the violation of people’s rights. (An exception is
those takings that fall under the principle of the rectification of injustices.)
From other points of view, also, it is serious.
Taxation of earnings from labor is on a par with
forced labor.ii Some persons find this claim obviously true: taking the earnings
of n hours labor is like taking n hours from the person; it
is like forcing the person to work n hours for another’s purpose.
Others find the claim absurd.
But even these, if they object to
forced labor, would oppose forcing unemployed hippies to work for the benefit
of the needy. And they would also object to forcing each person to work five
extra hours each week for the benefit of the needy. But a system that takes
five hours’ wages in taxes does not seem to them like one that forces someone
to work five hours, since it offers the person forced a wider range of choice
in activities than does taxation in kind with the particular labor specified.
(But we can imagine a gradation of systems of forced labor, from one that
specifies a particular activity, to one that gives a choice among two activities,
to . . . ; and so on up.) Furthermore, people envisage a system with
something like a proportional tax on everything above the amount necessary
for basic needs. Some think this does not force someone to work extra hours,
since there is no fixed number of extra hours he is forced to work, and since
he can avoid the tax entirely by earning only enough to cover his basic needs.
This is a very uncharacteristic view of forcing for those who also think
people are forced to do something whenever the alternatives they face
are considerably worse. However, neither view is correct. The fact
that others intentionally intervene, in violation of a side constraint against
aggression, to threaten force to limit the alternatives, in this case to
paying taxes or (presumably the worse alternative) bare subsistence, makes
the taxation system one of forced labor and distinguishes it from other cases
of limited choices which are not forcings.
The man who chooses to work longer to gain
an income more than sufficient for his basic needs prefers some extra goods
or services to the leisure and activities he could perform during the possible
nonworking hours; whereas the man who chooses not to work the extra time
prefers the leisure activities to the extra goods or services he could acquire
by working more. Given this, if it would be illegitimate for a tax system
to seize some of a man’s leisure (forced labor) for the purpose of serving
the needy, how can it be legitimate for a tax system to seize some of a man’s
goods for that purpose? Why should we treat the man whose happiness requires
certain material goods or services differently from the man whose preferences
and desires make such goods unnecessary for his happiness? Why should the
man who prefers seeing a movie (and who has to earn money for a ticket) be
open to the required call to aid the needy, while the person who prefers
looking at a sunset (and hence need earn no extra money) is not? Indeed,
isn’t it surprising that redistributionists choose to ignore the man whose
pleasures are so easily attainable without extra labor, while adding yet
another burden to the poor unfortunate who must work for his pleasures? If
anything, one would have expected the reverse. Why is the person with the
nonmaterial or nonconsumption desire allowed to proceed unimpeded to his
most favored feasible alternative, whereas the man whose pleasures or desires
involve material things and who must work for extra money (thereby serving
whomever considers his activities valuable enough to pay him) is constrained
in what he can realize? Perhaps there is no difference in principle. And
perhaps some think the answer concerns merely administrative convenience.
(These questions and issues will not disturb those who think that forced
labor to serve the needy or to realize some favored-end-state pattern is
acceptable.) In a fuller discussion we would have (and want) to extend our
argument to include interest, entrepreneurial profits, and so on. Those who
doubt that this extension can be carried through, and who draw the line here
at taxation of income from labor, will have to state rather complicated patterned
historical principles of distributive justice, since end-state
principles would not distinguish sources of income in any way. It
is enough for now to get away from end-state principles and to make clear
how various patterned principles are dependent upon particular views about
the sources or the illegitimacy or the lesser legitimacy of profits, interest,
and so on; which particular views may well be mistaken.
What sort of right over others does a legally
institutionalized end-state pattern give one? The central core of the notion
of a property right in X, relative to which other parts of the notion are
to be explained, is the right to determine what shall be done with X; the
right to choose which of the constrained set of options concerning X shall
be realized or attempted. The constraints are set by other principles or
laws operating in the society; in our theory, by the Lockean rights people
possess (under the minimal state). My property rights in my knife allow me
to leave it where I will, but not in your chest. I may choose which of the
acceptable options involving the knife is to be realized. This notion of
property helps us to understand why earlier theorists spoke of people as
having property in themselves and their labor. They viewed each person as
having a right to decide what would become of himself and what he would do,
and as having a right to reap the benefits of what he did.
This right of selecting the alternative to be
realized from the constrained set of alternatives may be held by an individual
or by a group with some procedure for reaching a joint decision;
or the right may be passed back and forth, so that one year I decide what’s
to become of X, and the next year you do (with the alternative of
destruction, perhaps, being excluded). Or, during the same time period, some
types of decisions about X may be made by me, and others by you. And so on.
We lack an adequate, fruitful, analytical apparatus for classifying the types
of constraints on the set of options among which choices are to
be made, and the types of ways decision powers can be held, divided,
and amalgamated. A theory of property would, among other things, contain
such a classification of constraints and decision modes, and from a small
number of principles would follow a host of interesting statements about
the consequences and effects of certain combinations of constraints
and modes of decision.
When end-result principles of distributive justice
are built into the legal structure of a society, they (as do most patterned
principles) give each citizen an enforceable claim to some portion of the
total social product; that is, to some portion of the sum total of the individually
and jointly made products. This total product is produced by individuals
laboring, using means of production others have saved to bring into existence,
by people organizing production or creating means to produce new things or
things in a new way. It is on this batch of individual activities that patterned
distributional principles give each individual an enforceable claim. Each
person has a claim to the activities and the products of other persons, independently
of whether the other persons enter into particular relationships that give
rise to these claims, and independently of whether they voluntarily take
these claims upon themselves, in charity or in exchange for something.
Whether it is done through taxation on wages or
on wages over a certain amount, or through
seizure of profits, or through there being a big
social pot so that it’s not clear what’s coming from where and
what’s going where, patterned principles of distributive justice involve
appropriating the actions of other persons. Seizing the results of someone’s
labor is equivalent to seizing hours from him and directing him to carry
on various activities. If people force you to do certain work, or unrewarded
work, for a certain period of time, they decide what you are to do and what
purposes your work is to serve apart from your decisions. This process whereby
they take this decision from you makes them a part-owner of you; it
gives them a property right in you. Just as having such partial control and
power of decision, by right, over an animal or inanimate object would be
to have a property right in it.
End-state and most patterned principles of distributive
justice institute (partial) ownership by others of people and their actions
and labor. These principles involve a shift from the classical liberals’ notion
of self-ownership to a notion of (partial) property rights in other people.
Considerations such as these confront end-state
and other patterned conceptions of justice with the question of whether the
actions necessary to achieve the selected pattern don’t themselves violate
moral side constraints. Any view holding that there are moral side constraints
on actions, that not all moral considerations can be built into end states
that are to be achieved, must face the possibility that some of its goals
are not achievable by any morally permissible available means. An entitlement
theorist will face such conflicts in a society that deviates from the principles
of justice for the generation of holdings, if and only if the only actions
available to realize the principles themselves violate some moral constraints.
Since deviation from the first two principles of justice (in acquisition and
transfer) will involve other persons’ direct and aggressive intervention to
violate rights, and since moral constraints will not exclude defensive or
retributive action in such cases, the entitlement theorist’s problem rarely
will be pressing. And whatever difficulties he has in applying the principle
of rectification to persons who did not themselves violate the first two principles
are difficulties in balancing the conflicting considerations so as correctly
to formulate the complex principle of rectification itself; he will not violate
moral side constraints by applying the principle. Proponents of patterned
conceptions of justice, however, often will face head-on clashes (and poignant
ones if they cherish each party to the clash) between moral side constraints
on how individuals may be treated and their patterned conception of justice
that presents an end-state or other pattern that must be realized.
May a person emigrate from a nation that has institutionalized
some end-state or patterned distributional principle? For some principles
(for example, Hayek’s) emigration presents no theoretical problem. But for
others it is a tricky matter. Consider a nation having a compulsory scheme
of minimal social provision to aid the neediest (or one organized so as to
maximize the position of the worst-off group); no one may opt out of participating
in it. (None may say, "Don’t compel me to contribute to others and don’t provide
for me via this compulsory mechanism if I am in need.") Everyone above a
certain level is forced to contribute to aid the needy. But if emigration
from the country were allowed, anyone could choose to move to another country
that did not have compulsory social provision but otherwise was (as much as
possible) identical. In such a case, the person’s only motive for leaving
would be to avoid participating in the compulsory scheme of social provision.
And if he does leave, the needy in his initial country will receive no (compelled)
help from him. What rationale yields the result that the person be permitted
to emigrate, yet forbidden to stay and opt out of the compulsory scheme of
social provision? If providing for the needy is of overriding importance,
this does militate against allowing internal opting out; but it also speaks
against allowing external emigration. (Would it also support, to some extent,
the kidnapping of persons living in a place without compulsory social provision,
who could be forced to make a contribution to the needy in your community?)
Perhaps the crucial component of the position that allows emigration solely
to avoid certain arrangements, while not allowing anyone internally to opt
out of them, is a concern for fraternal feelings within the country. "We
don’t want anyone here who doesn’t Contribute, who doesn’t care enough about
the others to contribute." That concern, in this case, would have to be tied
to the view that forced aiding tends to produce fraternal feelings between
the aided and the aider (or perhaps merely to the view that the knowledge
that someone or other voluntarily is not aiding produces unfraternal feelings).
Locke’s Theory of Acquisition
Before we turn to consider other theories of justice
in detail, we must introduce an additional bit of complexity into the structure
of the entitlement theory. This is best approached by considering Locke’s
attempt to specify a principle of justice in acquisition. Locke views property
rights in an unowned object as originating through someone’s mixing his labor
with it. This gives rise to many questions. What are the boundaries of what
labor is mixed with? If a private astronaut clears a place on Mars, has he
mixed his labor with (so that he comes to own) the whole planet, the whole
uninhabited universe, or just a particular plot? Which plot does an act bring
under ownership? The minimal (possibly disconnected) area such that an act
decreases entropy in that area, and not elsewhere? Can virgin land (for the
purposes of ecological investigation by high-flying airplane) come under ownership
by a Lockean process? Building a fence around a territory presumably would
make one the owner of only the fence (and the land immediately underneath
it).
Why does mixing one’s labor with something make
one the owner of it? Perhaps because one owns one’s labor, and so one comes
to own a previously unowned thing that becomes permeated with what one owns.
Ownership seeps over into the rest. But why isn’t mixing what I own with
what I don’t own a way of losing what I own rather than a way of gaining
what I don’t? If I own a can of tomato juice and spill it in the sea so that
its molecules (made radioactive, so I can check this) mingle evenly throughout
the sea, do I thereby come to own the sea, or have I foolishly dissipated
my tomato juice? Perhaps the idea, instead, is that laboring on something
improves it and makes it more valuable; and anyone is entitled to own a thing
whose value he has created. (Reinforcing this, perhaps, is the view that
laboring is unpleasant. If some people made things effortlessly, as the cartoon
characters in The Yellow Submarine trail flowers in their wake, would
they have lesser claim to their own products whose making didn’t cost
them anything?) Ignore the fact that laboring on something may
make it less valuable (spraying pink enamel paint on a piece of driftwood
that you have found). Why should one’s entitlement extend to the whole object
rather than just to the added value one’s labor has produced? (Such
reference to value might also serve to delimit the extent of ownership; for
example, substitute "increases the value of" for "decreases entropy in" in
the above entropy criterion.) No workable or coherent value-added property
scheme has yet been devised, and any such scheme presumably would fall to
objections (similar to those) that fell the theory of Henry George.
It will be implausible to view improving an object
as giving full ownership to it, if the stock of unowned objects that might
be improved is limited. For an object’s coming under one person’s ownership
changes the situation of all others. Whereas previously they were at liberty
(in Hohfeld’s sense) to use the object, they now no longer are. This change
in the situation of others (by removing their liberty to act on a previously
unowned object) need not worsen their situation. If I appropriate a grain
of sand from Coney Island, no one else may now do as they will with that
grain of sand. But there are plenty of other grains of sand left
for them to do the same with. Or if not grains of sand, then other things.
Alternatively, the things I do with the grain of sand I appropriate might
improve the position of others, counterbalancing their loss of the liberty
to use that grain. The crucial point is whether appropriation of an unowned
object worsens the situation of others.
Locke’s proviso that there be "enough and as good
left in common for others" (sect. 27) is meant to ensure that the situation
of others is not worsened. (If this proviso is met is there any motivation
for his further condition of non-waste?) It is often said that this proviso
once held but now no longer does. But there appears to be an argument for
the conclusion that if the proviso no longer holds, then it cannot even have
held so as to yield permanent and inheritable property rights. Consider the
first person Z for whom there is not enough and as good left to appropriate.
The last person Y to appropriate left Z without his previous
liberty to act on an object, and
so worsened Z’s situation. So Y’s appropriation
is not allowed under Locke’s proviso. Therefore the next to last person X
to appropriate left Y in a worse position, for X’s act ended permissible
appropriation. Therefore X’s appropriation wasn’t permissible. But then the
appropriator two from last, W, ended permissible appropriation and
so, since it worsened X’s position, W’s appropriation wasn’t permissible.
And so on back to the first person A to appropriate a permanent property
right.
This argument, however, proceeds too quickly. Someone
may be made worse off by another’s appropriation in two ways: first, by losing
the opportunity to improve his situation by a particular appropriation or
any one; and second, by no longer being able to use freely (without appropriation)
what he previously could. A stringent requirement that another not
be made worse off by an appropriation would exclude the first way if nothing
else counterbalances the diminution in opportunity, as well as the second.
A weaker requirement would exclude the second way, though not the
first. With the weaker requirement, we cannot zip back so quickly from Z
to A, as in the above argument; for though person Z can
no longer appropriate, there may remain some for him to use as
before. In this case Y’s appropriation would not violate the weaker
Lockean condition. (With less remaining that people are at liberty to use,
users might face more inconvenience, crowding, and so on; in that way the
situation of others might be worsened, unless appropriation stopped far short
of such a point.) It is arguable that no one legitimately can complain if
the weaker provision is satisfied. However, since this is less clear than
in the case of the more stringent proviso, Locke may have intended this stringent
proviso by "enough and as good" remaining, and perhaps he meant the nonwaste
condition to delay the end point from which the argument zips back.
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? Here enter the various
familiar social considerations favoring private property: it increases the
social product by putting means of production in the hands of those
who can use them most efficiently (profitably); experimentation is encouraged,
because with separate persons controlling resources, there is no one person
or small group whom someone with a new idea must convince to try it out; private
property enables people to decide on the pattern and types of risks they
wish :0 bear, leading to specialized types of risk bearing; private property
protects future persons by leading some to hold back resources from current
~consumption for future markets; it provides alternate sources of employment
for unpopular persons who don’t have to convince any one person r small group
to hire them, and so on. These :considerations enter a Lockean theory to
support he claim that appropriation of private property satisfies the intent
behind the "enough as left over" proviso, not as a utilitarian justification
of property. They enter to rebut the claim 3at because the proviso is violated
no natural right to private property can arise by a Lockean process. The
difficulty in working such an argument to show that the proviso is satisfied
is in .among the appropriate baseline for comparison. Lockean appropriation
makes people no worse if than they would be how? This question
of fixing the baseline needs more detailed investigation and we are able
to give it here. It would be desire to have an estimate of the general economic
importance of original appropriation in order to e how much leeway there
is for differing theories of appropriation and of the location of the baseline.
Perhaps this importance can be measured by the percentage of all income that
is issued upon untransformed raw materials and yen resources (rather than
upon human emotions), mainly rental income representing the improved value
of land, and the price of raw material in situ, and by the percentage
of current although which represents such income in the St.2
We should note that it is not only persons
voting private property who need a theory of w property rights legitimately
originate. Those living in collective property, for example )5e believing
that a group of persons living in area jointly own the territory, or its
mineral sources, also must provide a theory of how ~h property rights arise;
they must show why persons living there have rights to determine at is done
with the land and resources there That persons living elsewhere don’t have
(with regard to the same land and resources).
The Proviso
Whether or not Locke’s particular theory of appropriation
can be spelled out so as to handle various difficulties, I assume that any
adequate theory of justice in acquisition will contain a proviso similar to
the weaker of the ones we have attributed to Locke. A process normally giving
rise to a permanent bequeath able property right in a previously unowned thing
will not do so if the position of others no longer at liberty to use the
thing is thereby worsened. It is important to specify this particular
mode of worsening the situation of others, for the proviso does not encompass
other modes. It does not include the worsening due to more limited opportunities
to appropriate (the first way above, corresponding to the more stringent condition),
and it does not include how I "worsen" a seller’s position if I appropriate
materials to make some of what he is selling, and then enter into competition
with him. Someone whose appropriation otherwise would violate the proviso
still may appropriate provided he compensates the others so that their situation
is not thereby worsened; unless he does compensate these others, his appropriation
will violate the proviso of the principle of justice in acquisition and will
be an illegitimate one.’3 A theory of appropriation incorporating
this Lockean proviso will handle correctly the cases (objections to the theory
lacking the proviso) where someone appropriates the total supply of something
necessary for life.’4
A theory which includes this proviso in its principle
of justice in acquisition must also contain a more complex principle of justice
in transfer. Some reflection of the proviso about appropriation constrains
later actions. If my appropriating all of a certain substance violates the
Lockean proviso, then so does my appropriating some and purchasing all the
rest from others who obtained it without otherwise violating the Lockean proviso.
If the proviso excludes someone’s appropriating all the drinkable water in
the world, it also excludes his purchasing it all. (More weakly, and messily,
it may exclude his charging certain prices for some of his supply.) This
proviso (almost?) never will come into effect; the more someone acquires of
a scarce substance which others want, the higher the price of the rest will
go, and the more difficult it will become for him to acquire it all. But
still, we can imagine, at least, that something like this occurs: someone
makes simultaneous secret bids to the separate owners of a substance, each
of whom sells assuming he can easily purchase more from the other owners;
or some natural catastrophe destroys all of the supply of something except
that in one person’s possession. The total supply could not be permissibly
appropriated by one person at the beginning. His later acquisition of it all
does not show that the original appropriation violated the proviso (even by
a reverse argument similar to the one above that tried to zip back from 7
to A). Rather, it is the combination of the original appropriation
plus all the later transfers and actions that violates the Lockean
proviso.
Each owner’s title to his holding includes the
historical shadow of the Lockean proviso on appropriation. This excludes
his transferring it into an agglomeration that does violate the Lock-can
proviso and excludes his using it in a way, in coordination with others or
independently of them, so as to violate the proviso by making the situation
of others worse than their baseline situation. Once it is known that someone’s
ownership runs afoul of the Lockean proviso, there are stringent limits on
what he may do with (what it is difficult any longer unreservedly
to call) "his property." Thus a person may not appropriate the only water
hole in a desert and charge what he will. Nor may he charge what he will
if he possesses one, and unfortunately it happens that all the water holes
in the desert dry up, except for his. This unfortunate circumstance, admittedly
no fault of his, brings into operation the Lockean proviso and limits his
property rights.’5 Similarly, an owner’s property right in the
only island in an area does not allow him to order a castaway from a shipwreck
off his island as a trespasser, for this would violate the Lockean proviso.
Notice that the theory does not say that owners
do have these rights, but that the rights are overridden to avoid some catastrophe.
(Overridden rights do not disappear; they leave a trace of a sort absent in
the cases under discussion.) There is no such external (and ad hoc?) overriding.
Consideration internal to the theory of property itself, to its theory of
acquisition and appropriation, provide the means for handling such cases.
The results, however, may be Coextensive with some condition about catastrophe,
since the baseline for comparison is so low as compared to the productiveness
of a society with private appropriation that the question of the Lockean proviso
being violated arises only in the case of catastrophe (or a desert-island
situation).
The fact that someone owns the total supply of
something necessary for others to stay alive does not entail that
his (or anyone’s) appropriation of anything left some people (immediately
or later) in a situation worse than the baseline one. A medical researcher
who synthesizes a new substance that effectively treats a certain disease
and who refuses to sell except on his terms does not worsen the situation
of others by depriving them of whatever he has appropriated. The others easily
can possess the same materials he appropriated; the researcher’s appropriation
or purchase of chemicals didn’t make those chemicals scarce in a way so as
to violate the Lockean proviso. Nor would someone else’s purchasing the total
supply of the synthesized substance from the medical researcher. The fact
that the medical researcher uses easily available chemicals to synthesize
the drug no more violates the Lockean proviso than does the fact that the
only surgeon able to perform a particular operation eats easily obtainable
food in order to stay alive and to have the energy to work. This shows that
the Lockean proviso is not an "end-state principle"; it focuses on a particular
way that appropriative actions affect others, and not on the structure of
the situation that results)5
Intermediate between someone who takes all of the
public supply and someone who makes the total supply out of easily obtainable
substances is someone who appropriates the total supply of something in a
way that does not deprive the others of it. For example, someone finds a
new substance in an out-of-the-way place. He discovers that it effectively
treats a certain disease and appropriates the total supply. He does not worsen
the situation of others; if he did not stumble upon the substance no one
else would have, and the others would remain without it. However, as time
passes, the likelihood increases that others would have come across the substance;
upon this fact might be based a limit to his property right in the substance
so that others are not below their baseline position; for example, its bequest
might be limited. The theme of someone worsening another’s situation by depriving
him of something he otherwise would posses may also illuminate the example
of patents. An inventor’s patent does not deprive others of an object which
would not exist if not for the inventor. Yet patents would have this effect
on others who independently invent the object. Therefore, these independent
inventors, upon whom the burden of proving independent discovery may rest,
should ~to be excluded from utilizing their own invention as they wish (including
selling it to others). ~furthermore, a known inventor drastically lessens
the chances of actual independent invention. For persons who know of an invention
usually will not try to reinvent it, and the notion of independent discovery
here would be murky at est. Yet we may assume that in the absence of he original
invention, sometime later someone lse would have come up with it. This suggests
lacing a time limit on patents, as a rough rule of iumb ~o approximate how
long it would have iken, in the absence of knowledge of the invenon, for independent
discovery.
I believe that the free operation of a market istem
will not actually run afoul of the Lockean ~oviso. (Recall that crucial to
our story in Part I 7 how a protective agency becomes dominant td
a defacto monopoly is the fact that it wields rce in situations of
conflict, and is not merely competition, with other agencies. A similar le
cannot be told about other businesses.) If this correct, the proviso will
not play a very imporit role in the activities of protective agencies d will
not provide a significant opportunity for lure state action. Indeed, were
it not for the ects of previousillegitimate state action, pen-would
not think the possibility of the proo’s being violated as of more interest
than any er logical possibility. (Here I make an empinihistorical claim;
as does someone who disees with this.) This completes our indication the
complication in the entitlement theory -oduced by the Lockean proviso.
NOTES
Applications of the principle of justice in acquim
may also occur as part of the move from one disation to another. You
may find an unheld thing and appropriate it. Acquisitions also are to be
understood as included when, to simplify, I speak only of transitions by
transfers.
2. See, however, the useful book by Boris Bittker, The
Case for Black Reparations (New York: Random House, 1973).
3. If the principle of rectification of violations of
the first two principles yields more than one description of holdings, then
some choice must be made as to which of these is to be realized. Perhaps
the sort of considerations about distributive justice and equality that I
argue against play a legitimate role in this subsidiary choice. Similarly,
there may be room for such considerations in deciding which otherwise arbitrary
features a statute will embody, when such features are unavoidable because
other considerations do not specify a precise line; yet a line must be drawn.
4. One might try to squeeze a patterned conception of
distributive justice into the framework of the entitlement conception, by
formulating a gimmicky obligatory "principle of transfer" that would lead
to the pattern. For example, the principle that if one has more than the
mean income one must transfer everything one holds above the mean to persons
below the mean so as to bring them up to (but not over) the mean. We can
formulate a criterion for a "principle of transfer" to rule out such obligatory
transfers, or we can say that no correct principle of transfer, no principle
of transfer in a free society will be like this. The former is probably the
better course, though the latter also is true.
Alternatively, one might think to make the entitlement
conception instantiate a pattern, by using matrix entries that express the
relative strength of a person’s entitlements as measured by some real-valued
function. But even if the limitation to natural dimensions failed to exclude
this function, the resulting edifice would not capture our system
of entitlements to particular things.
5. F. A. Hayek, The Constitution ofLiberly (Chicago:
University of Chicago Press, 1960), p. 87.
6 This question does not imply that they will tolerate
any and every patterned distribution. In discussing Hayek’s views, Irving
Kristol has recently speculated that people wilt nut long tolerate a system
that yields distributions patterned in accordance with value rather than
merit. ("‘When Virtue Loses All Her Loveliness—Some Reflections on Capitalism
and The Free Society,"’ The Public Interest, Fall 1970, pp. 3—15.)
Knistol, following some remarks of Hayek’s, equates the merit system
with justice. Since some case can be made for the external standard of distribution
in accordance with benefit to others, we ask about a weaker (and therefore
more plausible) hypothesis.
7. We certainly benefit because great economic incentives
operate to get others to spend much time and energy to figure out how to
serve us by providing things we will want to pay for. It is not mere paradox
mongering to wonder whether capitalism should be criticized for most rewarding
and hence encouraging, not individualists like Thoreau who go about their
own lives, but people who are occupied with serving others and winning them
as customers. But to defend capitalism one need not think businessmen are
the finest human types. (1 do not mean to join here the general maligning
of businessmen, either.) Those who think the finest should acquire the most
can try to convince their fellows to transfer resources in accordance with
that principle.
8. Varying situations continuously from that limit situation
to our own would force us to make explicit the underlying rationale of entitlements
and to consider whether entitlement considerations lexicographically precede
the considerations of the usual theories of distributive justice, so that
the slightest strand of entitlement outweights the considerations
of the usual theories of distributive justice.
9. Might not a transfer have instrumental effects on a
third party, changing his feasible options? (But what if the two parties
to the transfer independently had used their holdings in this fashion?) I
discuss this question below, but note here that this question concedes the
point for distributions of ultimate intrinsic noninstrumental goods (pure
utility experiences, so to speak) that are transferrable. It also might be
objected that the transfer might make a third party more envious because
it worsens his position relative to someone else. I find it incomprehensible
how this can be thought to involve a claim of justice. On envy, see [Anarchy,
State, and Utopia,] Chapter 8.
Here and elsewhere in this chapter, a theory which incorporates
elements of pure procedural justice might find what I say acceptable, if
kept in its proper place; that is, if background institutions exist to
ensure the satisfaction of certain conditions on distributive shares. But
if these institutions are not themselves the sum or invisible-hand result
of people’s voluntary (nonaggressive) actions, the constraints they impose
require justification. At no point does our argument assume any background
Institutions more extensive than those of the minimal night-watchman state,
a state limited to protecting persons against murder, assault, theft, fraud,
and so forth.
10. See the selection from John Henry MacKay’s novel,
The Anarchists, reprinted in Leonard Krimmerman and Lewis Perry, eds.,
Patterns of Anarchy (New York: Doubleday Anchor Books, 1966), in which
an individualist anarchist presses upon a communist anarchist the following
question: "Would you, in the system of society which you call ‘free Communism’
prevent individuals from exchanging their labor among themselves by means
of their own medium of exchange? And further: Would you prevent them from
occupying land for the purpose of personal use?" The novel continues: "[the]
question was not to be escaped. If he answered ‘Yes!’ he admitted that society
had the right of control over the individual and threw overboard the autonomy
of the individual which he had always zealously defended; if on the other
hand, he answered ‘No!’ he admitted the right of private property which he
had just denied so emphatically. . . . Then he answered ‘Iii Anarchy any
number of men must have the right of forming a voluntary association, and
so realizing their ideas in practice. Nor can I understand how any one could
justly be driven from the land and house which he uses and occupies . . .
every serious man must declare himself: for Socialism, and thereby for force
and against liberty, or for Anarchism, and thereby for liberty and against
force."’ In contrast, we find Noam Chomsky writing, "Any consistent anarchist
must oppose private ownership of the means of production," "the consistent
anarchist then ... will be a socialist.
of a particular sort." Introduction to Daniel Guerin,
Anarchism: From Theory to Practice (New York:
Monthly Review Press, 1970), pages xiii, xv.
11. I am unsure as to whether the arguments I present
below show that such taxation merely is forced labor; so that "Is
on a par with" means "is one kind of." Or alternatively, whether the arguments
emphasize the great similarities between such taxation and forced labor,
to show it is plausible and illuminating to view such taxation in the light
of forced labor. This latter approach would remind one of how John Wisdom
conceives of the claims of metaphysicians.
12. I have not seen a precise estimate. David Friedman,
The Machinery of Freedom (New York: Harper & Row, 1973), pp. xiv,
xv, discusses this issue and suggests 5 percent of U.S. national income
as an upper limit for the first two factors mentioned. However, he does not
attempt to estimate the percentage of current wealth which is based upon
such income in the past. (The vague notion of "based upon" merely indicates
a topic needing investigation.)
13. Fourier held that since the process of civilization
had deprived the 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 (Alexander Gray, The Socialist
Tradition [New York: Harper & Row, 1968], p. 188). But this puts
the point too strongly. This compensation would be due those persons, if
any, for whom the process of civilization was a net loss, for whom
the benefits of civilization did not counterbalance being deprived of these
particular liberties.
14. For example, Rashdall’s case of someone who comes
upon the only water in the desert several miles ahead of others who also
will come to it and appropriates it all. Hastings Rashdall, "The Philosophical
Theory of Property," in Property, Its Duties and Rights (London: MacMillan,
1915).
We should note Ayn Rand’s theory of property rights ("Man’s
Rights" in The Virtue of Selfishness
[New York: New American Library, 1964], p. 94), wherein
these follow from the right to life, since people need physical things to
live. But a right to life is not a right to whatever one needs to live; other
people may have rights over these other things (see [Anarchy, State, and
Utopia,] Chapter 3). At most, a right to life would be a right to have
or strive for whatever one needs to live, provided that having it does not
violate anyone else’s rights. With regard to material things, the question
is whether having it does not violate any right of others. (Would appropriation
of all unowned things do so? Would appropriating the water hole in Rashdall’s
example?) Since special considerations (such as the Lockean proviso) may
enter with regard to material property, one first needs a theory of
property rights before one can apply any supposed right to life (as amended
above). Therefore the right to life cannot provide the foundation for a
theory of property rights.
15. The situation would be different if his water
hole didn’t dry up; due to special precautions he took to prevent this. Compare
our discussion of the case in the text with Hayek, The Constitution of
Liberty, p. 136; and also with Ronald Hamowy, "Hayek’s Concept of Freedom;
A Critique," New Individualist Review, April 1961, pp. 28—31.
16. Does the principle of compensation ([Anarchy, State,
and Utopia,] Chapter 4) introduce patterning considerations? Though it
requires compensation for the disadvantages imposed by those seeking security
from risks, it is not a patterned principle. For it seeks to remove only
those disadvantages which prohibitions inflict on those who might present
risks to others, not all disadvantages. It specifies an obligation on those
who impose the prohibition, which stems from their own particular acts, to
remove a particular complaint those prohibited may make against them.
Notes and Questions
A. M. HONORE, "Property, Title and Redistribution"
1. A. M. Honoré defends private property but opposes Nozick’s
view of it. The basic question, he says, is the relation between private
property and economic equality. Can one be committed to both? Nozick says
no, as does the Court in the case of Coppage v. Kansas (see
Chapter Three, "Cases on Freedom of Contract"). Since life, liberty, and
property are equal rights, according to Nozick, taking property is equivalent
to taking freedom. But Honoré objects that Nozick assumes, without argument,
the extensive Western, liberal concept of ownership. If ownership is total,
exclusive, and indefeasible, as the Western, liberal tradition assumes, then
the initial acquisition is crucial, as Nozick assumes. But this view ignores
the social benefits received from the group that enables property ownership
in the first place, Honoré argues. If social considerations are included,
that can limit the scope of ownership rights, so total, exclusive, indefeasible
property rights cannot be assumed. How might Nozick answer this objection?
2. Furthermore, Honoré points out, Nozick also ignores
legal considerations such as lapse of title, eminent domain, and compulsory
acquisition, which are part of the Western, liberal legal tradition. Why
reproduce some legal factors and not others? Especially, why select only
those factors that protect private ownership and not those that limit it?
Can Nozick respond?
3. Third, Honoré argues, Nozick ignores historical change
and social context. Given his acceptance of the Lockean proviso, can
Nozick consistently ignore changing circumstances? How does he answer this
challenge? Does he succeed? Can he respond to Honoré’s fishhook example?
This is about what it means to say that a person is "worse off." Nozick would
have to say that persons without the fishhook are no worse off than they
would have been had the fishhook not been invented. Honoré would say that
those without the fishhook are worse off than they would be if they had it.
Which is the better view?
4. Like Mill, Honoré argues that historically no acquisitions
are just in the long view, since all are products of conquest or fraud, and
thus Nozick’s view has no application outside utopia. Is this a fair criticism?
Is it a reasonable view of property? Must Nozick consider acquisition this
broadly? Why or why not? If he does not, what does his principle
of rectification amount to?
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