January 20, 2011
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Argument 1: Intuitive Equality of Opportunity
Argument 2: Social Contract
Nozick and Libertarian Justice
Nozick on Entitlement
Initial acquisition and the Lockean Proviso
Nozick’s Intuitive Argument for Libertarianism
Nozick’s Self-Ownership Argument
Principle 1: Each person is to have an equal right to the most extensive total system of
equal basic liberties compatible with a similar system of liberty for all.
Principle 2: Social and economic inequalities are to be arranged so that they are both –
a) to the greatest benefit of the least advantaged, and
b) attached to offices and positions open to all under conditions of fair equality of
opportunity.
Priority rule 1 (The Priority of Liberty): The principles of justice are to be ranked in
lexical order (that is, the first principle takes priority over the second principle) and
therefore liberty can only be restricted for the sake of liberty.
Priority rule 2 (The Priority of Justice Over Efficiency and Welfare): The second
principle of justice is lexically prior to the principle of efficiency and to that of
maximizing the sum of advantages; and fair opportunity is prior to the difference
principle.
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Rawls has two normative arguments for his theory
of justice.
The Intuitive Equality of Opportunity Argument.
The [famous] Social Contract Argument.
His theory is not derived from these arguments they are meant to show that we ought to favour his
conception of justice: i.e., they are normative.
They are separate arguments: if you do not accept
the first you can turn to the second; if you do not
accept the second you can fall back on the first –
only if both fail will Rawls’ work lack justification.
No justification, no Commitment!
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Prevailing argument for unequal distribution is
through equal opportunity: an unequal distribution
is justified if everyone had an equal opportunity to
compete.
Advocates of equal opportunity say that it is fair for
people to have unequal shares if it is the result of
choices, efforts and actions. But they accept that its
unfair if people are disadvantaged by morally
arbitrary factors, factors that pertain to
circumstances that were not chosen by them.
But he claims, when we identify the intuition behind
the EO view that renders it attractive we will see that
the position above fails to live up to our
expectations.
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What we find intuitively attractive is the
suggestion that a fair competition is one in which
no one is disadvantaged by something undeserved
[unchosen].
That is why we agree that no one should be made
to be worse off because of racial, gender or class
circumstances, these are morally arbitrary
[unchosen].
This could be articulated more formally as follows:
distributive shares ought not be determined by
factors that are arbitrary from the moral point of
view.
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The standard Equal Opportunity suggests that
one’s social circumstances are morally arbitrary
and so one ought not be advantaged by them.
Thus we need fair competition that ameliorates
social advantage.
But, natural capacities and talents are just as
morally arbitrary and so we must consider the
advantage that they bring in competition.
The standard equal opportunity view does not
apply to natural talents and abilities, thus it
fails to consider all morally arbitrary factors.
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The standard equal opportunity view claims that by
counteracting social contingencies (race, gender or
class) everyone has an equal opportunity to acquire
social benefits.
But this is not true, the naturally handicapped do not
have that opportunity, their lack of success has nothing
to do with their choices or their efforts.
For Rawls we have to recognise that there are natural
differences, differences in natural capacities and gear
the basic structure of our society so that these work to
the benefit of the least fortunate.
Notice we are led to a Rawlsian conception of justice,
and the difference principle, from considering the
standard and prevailing view of what constitutes a just
distribution, the equal opportunity view
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Rawls’ social contract is neither historical nor hypothetical,
it is a thought experiment by which we can tests our
intuitions about justice.
Rawls seeks a new device allowing us to tease out the
implications of moral equality for a theory of justice, by
allowing us to think about justice free of the influence our
own situations bring.
He offers us his own version of the initial pre-contract
situation, he calls this the ‘original position’ – behind a
‘veil of ignorance’ - whereby none knows what position in
society they will hold, their class, race, gender, religion,
how they have fared in the natural lottery, their physical
capabilities and of character traits – all obscured.
A societies principles of justice are chosen from the
original position – behind the veil.
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Its difficult to imagine being in this position!
BUT: The purpose of playing the role of a contractor in
he original position is to test our moral intuitions about
justice.
It has been likened to the way we ask a child to divide
a cake without knowing which slice they will get.
The child is in something like the original position;
they know that, when all is said and done, they will get
a share, but they do not know what share they will get.
Yet they have one thing up their sleave, they choose
how the good is divided.
In the original position no one can influence the
selection process to favour themselves.
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“The idea here is simply to make vivid to
ourselves the restrictions it seems reasonable to
impose on arguments for principles of justice,
and therefore on these principles themselves.
Thus it seems reasonable and generally
accepted that no one should be advantaged or
disadvantaged by natural fortune or social
circumstance in the choice of principles. It also
seems widely agreed that it should be
impossible to tailor principles to the
circumstances of one’s own case”.
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The original position embodies a certain conception of
equality, one whereby none of us knows anything
about their natural talents nor social circumstances, we
are all equally ignorant of the factors that might give us
an advantage
Asks us to extract the consequences for justice from
this position of equality.
For Rawls imagining this allows us to remove the
sources of bias from our thinking and only then do we
seek to reach unanimity about the principles of justice
we employ.
If we agree that in the ‘original position’ contractors
reach an agreement about justice from a position of
equality then Rawls has been successful.
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Contractors begin in the ‘original position’ and behind
the veil of ignorance
Contractors are rational and self-interested agents who,
while ignorant of specifics know that we will have a
life plan and that this will require both liberties and
social primary goods
Based on the maximin principle the contractors agree
to pronciples of justice that will maximise what they
would get if they found themselves in the minumum
(worst) situation
In making this decision behind the veil of ignorance
contractors much choose by considering the
perspective of every other contractor, because when
the veil is lifted they could end up in any position.
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The 1970’s was a period in which Keynesian
welfare liberalism came under attack, but the
1980’s neoliberal orientations (Reagan, Thatcher –
but also Blair and Clinton) had come to dominate.
While neoliberal politics and libertarian politics
overlap to some degree (both value free markets,
both have engaged in criticisms of social spending
by states) they are distinct – libertarianism is more
centrally bound up with a moral argument, its
claims are not, centrally, about efficiency they are
about morality.
If they promote free markets and small
governments they do so for moral reasons and not
primarily on grounds of efficiency.
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Libertarianism is built around a strong defence of
universal rights and a politics centred on rights holding
individuals – for a libertarian the best way of defending
liberty and equality is through a strong system of
individual rights protecting the liberty of all individuals.
“Individuals have rights, and there are things which no
person or group may do to them (without violating their
rights). So strong and far reaching are these rights that
they raise the question of what, if anything, the state and
its officials may do” (Nozick 1974, ix)
Law, legislation, government regulation and so on should
be reduced to the minimum required to establish the
conditions for individual autonomy, that minimum is
constituted by what is required for the defence of
individual rights and no more.
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Assume (perhaps contrary to fact) that everyone is entitled
to their current holdings – the current distribution is
legitimate.
Over time exchanges will be made and the distribution will
change: How can we know if a future distribution will be
legitimate?
If all exchanges are free, un-coerced exchanges of goods,
then the holdings, whatever they may be, in the future will
also be just.
Any coercive taxation on these holdings to compensate
others is unjust. It coercively takes what is rightfully mine
and gives it to another person who has no legitimate claim
on it.
The only taxation that is just is that extracted to provide the
institutions necessary for free exchanges – institutions I rely
upon – such as the police and justice system.
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Three principles that an entitlement theory must grapple with:
 The principle of transfer – whatever is justly acquired can be
freely transferred.
 The principle of just initial acquisition – provides an account of
how people initially obtain legitimate holdings that they can
transfer.
 The principle of rectification of injustice – provides an account
of how to deal with holdings that were unjustly acquired or
transferred.
This is a historical conception of justice because in order to see if
any distribution is just I have to consider the historical facts about
acquisition and free transfers that lie behind it.
Whatever results from free exchanges based legitimate entitlement
is just, even gross distributive inequalities – so Nozick tells us
“from each as they choose, to each as they have chosen”.
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The state should be limited to those functions required
by individual citizens to protect them from force, theft,
fraud and for the enforcement of contracts – establishes
the boundary conditions for free exchange of legitimate
holdings.
A state should protect our right not to be forced to do
things, it ought to protect our liberty –conceived in a
tight way, freedom from coercion by others, including
the state.
A state that exceeds this boundary will end up forcing
people to do things that they do not want to do - an
unjustified infringement of their liberty.
Public education, health care, transport … are things
which would lead us to violate people’s rights because
we could only fund these them via coercive taxation.
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Principle two of Nozick’s conception of justice
requires an account of what a legitimate initial
acquisition amounts to (Australia? New Zealand?
The USA?...)
Nozick borrows from Locke’s theory of property
(recall last week).
I own my self – I am a self-proprietor, this includes
ownership of my abilities and talents.
 I can appropriate the un-owned in nature by working
upon it, that is by applying abilities to it to shape it
according to a rational plan.
 The only proviso on my appropriation of nature is that I
leave “enough and as good” for others to appropriate –
that is, an acquisition must not disadvantage others.
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Locke knew that many of the acts of acquisition (land
enclosures undertaken in England) did not respect the
Lockian proviso that acquisition leave “enough and as
good” for others. It advantaged some to the
disadvantage of others.
But, consider the ‘tragedy of the commons’ – common
land is not used efficiently/productively and subject to
depletion – there is no guarantee of return for effort, so
no rational motivation to make an effort.
Private ownership results in more efficient and
productive use of land and provides a greater
guarantee of return for effort.
Further private ownership in bringing greater
productivity brings a boon to all – jobs and a greater
quanta of produce for consumption
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Thus there is no injustice in allowing private appropriation; it
does not leave others worse off.
The test for just acquisition is based on Locke’s proviso – that
acquisition must leave “enough and as good” for others =
acquisition morally ought not make others worse off – if Locke’s
claim about private use is correct meeting this seems
straightforward.
Yet one can accept the above and claim that the same argument
would justify a communal appropriation and use of land – it
may demonstrate leaving the land a commons is inefficient and
unproductive but does not specifically justify private as
opposed to collective use.
Further the ‘first-come, first served’ principle is questionable,
the first person to acquire the land is not necessarily the best
(most productive) person to acquire it, perhaps the community
is worse off allowing that person to acquire it rather than some
other or opting for communal use.
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So there are problems with the Lockean account of
legitimate initial acquisition. These go deeper than the
fact that, historically speaking, force has been the tool
whereby holdings have been acquired.
But it is possible that there an alternative stronger
account of legitimate initial acquisition can be given.
What is a more important question is whether he can
provide a normative justification of libertarian
conceptions of justice generally – if that can be done
then libertarians can revisit the question of legitimate
acquisition.
He has two arguments one an intuitive argument the
other an argument from self-ownership.
Thought experiment
Imagine we are starting from a position with a just
distribution of resources.
Imagine (Harlem Globetrotter) Wilt Chamberlain joins
a basket ball team in his contract demands, over and
above his regular salary, that he may add 25 cents
(paid directly to him) to the cost of entry to all games
he plays in.
Now suppose 1 million people attended his games so
that at the end of the season he recieves $250,000 extra.
What is the injustice here? Each person who saw him
play willingly transferred 25 cents to him in exchange
for the pleasure.
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If the initial distribution was fair, and if all who attended the
game freely paid the additional 25 cents to see Wilt play the
fact that Wilt now has a larger slice of the pie is not an
injustice.
By what right could the state then interpose itself and
demand that Wilt give a portion of that money for the
benefit of some third party?
This third party had no claim at the beginning of the season,
when the distribution was just, how do they then come to a
legitimate claim on Wilt’s $250,000?
Nozick says that intuitively we agree there is no just claim
on the extra $250,000 that Wilt has – if the initial holdings
were fair and the only reason why he has the extra money is
that people freely paid it to him in exchange for seeing him
play then we would intuitively agree no one has a claim on
Wilt’s extra share.
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This meets our intuitions about being able to dispose of
legitimate holdings in any way we want – that you are free
to dispose of your holdings as you chose.
But it does not meet our intuitions about undeserved
inequalities.
A disabled person’s inability to increase their holdings is
undeserved, they suffer a natural disadvantage, but we
cannot say that they deserved this. Thus for many their
intuitions lead to the idea that, in some manner, we need to
deal with this.
While Nozick has successfully appealed to our intuitions
about our right to dispose of our holdings as we chose he
has not done justice to our intuitions pushing us to
compensate for undeserved disadvantage.
Nozick acknowledges this, which weakens the intuitive case
and means he requires some other justification.
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Based on the Kantian notion that human beings are
ends-in-themselves;
Partly that means that we are never to be used as a
means to the ends of others, partly it means that we are
beings who can determine our own purposes and
goals, we are beings who can ‘shape’ our own life plan
according to our own purposes and goals
(workmanship).
Most primitively = human beings have the right not to
be used as a vehicle for another’s ends, no human
being should be sacrificed or have their interests
sacrificed for the sake of others.
Recall the workmanship model of ownership from last
week: each individual freely shapes their own life
according to their own rational life plan.
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For Nozick self-owernship is an interpretation of the Kantian
notion that human beings are ends-in-themselves.
Society must respect rights because rights reflect the Kantian
principle that people are ends-in-themselves.
This places strict limits on what can be asked of us in the name
of others and a theory of rights that coheres with this ought to
help define those limits.
a libertarian theory treats people as “persons having individual
rights with the dignity this constitutes. Treating us with respect
by respecting our rights, it allows us, individually or with
whom we choose, to choose our life and to realise our ends and
our conception of ourselves, insofar as we can” (Nozick 1974,
334).
For Nozick this is counter to the Rawlsian idea that the state
may redistribute in the name of the worst off – for that would be
negating our right to use our resources as we please in pursuit
of our own self-project.
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Rawls and Nozick agree there needs to be limits to what
the state can do to individuals in the name of the collective:
there are certain rights that are bedrock, however they do
not agree on what rights these are.
For Rawls the foundational right is to a fair share of social
goods, including resources.
For Nozick the most important rights are to selfownership.
Rawls would agree that this is an important right but
would disagree that one always has an absolute right over
one’s property.
Rawls suggests that goods produced by the use of talents
can legitimately be appropriated by the state to benefit the
least advantaged because while you have a right to use
and benefit from those talents this does not include a right
to gain unequal rewards on a morally arbitrary basis.
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Nozick feels Rawls’ position incompatible with selfownership because it suggests that I do not completely
own myself.
If I own myself completely then I own my talents
completely.
If I benefit from my talents in free exchange then,
because I own those talents completely I should own
whatever I receive in exchange for them completely.
To reject this is to say that I do not own my talents
completely, that someone else (the state) has a fair
claim on my talents and the use of them. This negates
my self-ownership.
To tax me on what I earn from my talents in the name
of redistribution violates my property rights and more
fundamentally violates my right to self-ownership.
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For Nozick Rawlsian principles constitute a partial
negation to classical liberal, Lockean, principle of
self-ownership.
The welfare liberal view fails to treat people as
ends-in-themselves and, as with the utilitarian
view, permits using some people (tax payers) as a
means to the ends of other people, the socially or
naturally disadvantaged. Thus:
Rawlsian redistribution (or any coercive government
intrusion into market exchanges) is incompatible with
recognising people as self-proprietors. Only unrestricted
capitalism recognises such self-proprietorship.
 Recognising people as self-proprietors, recognising selfownership, is crucial to treating people as free and equal.
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