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RAWLS AND NOZICK
Sebastian Nye sjn42@cam.ac.uk
LECTURE 8
Nozick’s critique of rival distributive principles
Nozick’s entitlement theory (in brief)
A’s holding of X is just if, and only if,
(i) X was previously unowned and A came to acquire X in a just way (i.e. without violating the Lockean proviso). or
(ii) Some other person, B, justly owned X and voluntarily transferred ownership of X to A (e.g. as a gift, or in exchange for something else).
If there is an unjust pattern of distribution (e.g. A owns X but C stole it), then the injustice should be rectified (X should be returned to A).
Historical and patterned principles
According to historical principles, ‘whether a distribution is just depends on how it came about’ ( ASU p.153); according to unhistorical principles, it does not.
A principle is patterned if ‘it specifies that a distribution is to vary along some natural dimension, weighted sum of natural dimensions, or lexicographic ordering or natural dimensions’ ( ASU p.156); a principle is unpatterned if it does not.
Nozick’s entitlement theory offers unpatterned historical principles of distributive justice.
The Wilt Chamberlain argument
Imagine that whatever you consider to be a just distribution obtains. Call that D1. Now imagine that Wilt Chamberlain, a very popular basketball player, signs a year-long contract with a team. In exchange for playing basketball, twenty-five cents from the price of each ticket will go to him. During the year a million people come to watch the games. All are happy to pay the admission price to watch Wilt Chamberlain play. So, at the end of the year, he has $250,000, making him considerably better off than everyone else. Call this distribution
D2.
D2 is a just distribution, because:

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D1 was a just distribution.
‘Whatever arises from a just situation by just steps is itself just’ ( ASU p.151).
Voluntary transactions are just.
D2 arose from D1 out of voluntary (and so just) transactions.
However,
D2 is not a just distribution according to patterned and end-state principles. (It might be the case that all people voluntarily choose to exchange goods in a way that upholds a particular pattern, unlike in the Wilt Chamberlain case. But
Nozick claims that this is unrealistic, see ASU p.163.)
Moreover, the only way to ensure that some pattern or end-state principle is adhered to, given that voluntary transactions will upset the favoured distribution, is by constantly undermining people’s liberty.
‘[N]o end-state principle or distributional patterned principle of justice can be continuously realized without continuous interference with people’s lives’ ( ASU p.163).
‘The socialist society would have to forbid consenting acts between consenting adults’ ( ASU p.163).
Criticisms of the Wilt Chamberlain argument
1. D1 and absolute property rights.
Nozick assumes that what is being distributed at D1 is absolute property rights (i.e. absolute property rights should be distributed according to some pattern or end-state principle).
However, there is no reason to assume this. There are a whole range of packages of rights and entitlements we might have over resources that fall short of absolute property rights. If it isn’t absolute property rights that are being distributed, then the argument does not work.
That I have certain rights over certain holdings does not necessarily imply that I can do anything with those holdings (such as make sports players fantastically wealthy). If we don’t presuppose absolute property rights, then there is no reason to think that the interference in people’s transactions is unjust. (Variations of this point are made by many critics of Nozick.
See, for instance: O’Neill, ‘Nozick’s Entitlements,’ in Paul ed., Reading Nozick , pp.308-310;
Ryan, ‘Your, Mine and Ours: Property Rights and Individual Liberty,’ in Paul ed., Reading
Nozick , pp328-332, and Cohen, Self-Ownership, Freedom and Equality , p.28)
2. Justice-preserving steps.
The argument claims that ‘whatever arises from a just situation by just steps is itself just’. But what about unhistorical principles of justice? Justice, according to these accounts, is not a matter of some situation arising justly (through ‘justice-preserving steps’) but is a matter of
(a) whether a particular pattern obtains, or (b) whether the distribution satisfies an end-state principle.
3. Voluntary transactions.
The argument claims that whatever arises from a just situation by voluntary transactions is itself just. Straightforward counterexample: a slave society could arise voluntarily (though people

3   voluntarily selling themselves into slavery), but surely slave societies are unjust. Nozick would deny that such societies are unjust since, according to his view of rights, we can voluntarily give them up. But, unless we already agree with this feature of Nozick’s doctrine of rights, or are given an independent argument showing why we should agree with it, we have no reason to accept this claim.
4. Impact on third parties.
Even if we think that the justice of D1 and subsequent voluntary transactions are relevant to whether D2 is just, why should we think that these two considerations are sufficient to establish the justice of D2? There may be, for instance, damaging effects on third parties that come about as a result of the transaction between Wilt Chamberlain and his fans. These should be taken into consideration. Nozick responds by saying
‘After someone transfers something to Wilt Chamberlain, third parties still have their legitimate shares; their shares are not changed’ ( ASU p.161).
But surely others are affected; what I can do with my resources partly depends on how much others have (see Cohen, Self-Ownership, Freedom and Equality , pp.26-27).
5. Broader considerations of justice.
More generally, it might be argued that justice is not (merely) a matter of distributions of goods and voluntary transactions (even taking account of third parties). A socialist might argue that justice concerns ownership of the means of production; a Rawlsian that society ensures the protection of equal basic liberties. Without looking at the wider impact on society of the kinds of inequalities generated by voluntary transactions, a socialist or
Rawlsian might argue that there is no obvious answer to the question of whether D2 is just or not.
6. Voluntarily conforming to patterns.
Nozick claims that it is unrealistic to think that people’s voluntary acts would conform to a pattern. This begs the question against both Rawlsians and socialists (for very different reasons). In a Rawlsian well-ordered society, people are motivated by a sense of justice. So, arguably, they would not voluntarily act in a way that would create an unjust distribution of wealth. Similarly, socialists often argue that what people are and are not motivated to do depends upon what sort of society they live in. In a capitalist society, where the ruling ideology is the capitalist ideology, people are perfectly happy to undergo voluntary transactions which make some people incredibly wealthy. But, in a socialist society, where the capitalist ideology is no longer the ruling one, people will not be so motivated.
The taxation and forced labour argument
‘Taxation of earnings from labor is on a par with forced labor… taking the earning 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’ ( ASU p.169). Since (presumably) we think that forced labour is

4   impermissible – it is, after all, a form of slavery – we should also think that compulsory redistributive taxation is impermissible.
Criticisms of the taxation and forced labour argument
1. Differences between slavery/forced labour and taxation.
There are huge differences between slavery and taxation, so the comparison is too weak to show anything important. Assuming that tax is a proportion of income, how much tax we have to pay depends on how much we choose to work; typically slaves don’t get to choose how much they work. We get to choose what work we do, typically slaves don’t (or get such choice only at the arbitrary whim of their master). Taxation, at most, only restricts certain of our rights (namely our property rights), whereas a slave has no rights at all as they are the property of their master. And so on. Nozick’s response is that ‘we can imagine a gradation of systems of forced labor, from one that specifies a particular activity, to one that gives a choose among two activities to…; and so on up’ ( ASU p.169). But, even if these are different points on some continuum, why does that imply that taxation is impermissible?
2. Voluntariness.
Modern progressive taxation systems only tax people who earn above a certain wage, so taxation is not forced labour because people could (if they wanted), not earn above that minimum; slavery does not have this extremely important opt out. Nozick’s response is as follows:
‘the fact that others intentionally intervene, in the 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 labour and distinguishes it from other cases of limited choices which are not forcings’ ( ASU p.169)
This, of course, relates to Nozick’s understanding of voluntariness: my actions are nonvoluntary if (a) my options are restricted by the actions of others and (b) the actions of others are rights violating (and my actions are voluntary if they are not non-voluntary). So
Nozick can avoid this criticism, but only appealing to his conception of voluntariness.
This leads to two criticisms: (i) This conception of voluntariness builds in Nozick’s doctrine of rights. So, if we don’t accept Nozick’s doctrine of rights, presumably there is no reason why we would accept his conception of voluntariness. (ii) Nozick’s rights-based conception of voluntariness is subject to many counterexamples.
Intuitive residue
It might be thought that although the Wilt Chamberlain and taxation arguments don’t work, there is still an intuitive residue. Even if the arguments don’t work, we might think that
Nozick has identified some strong intuitions which tell in favour of the entitlement theory.
However,

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even if these kinds of intuitions are common, so are many intuitions that go against them. As Onora O’Neill says:
‘We can infer little from an intuition that there is nothing very wrong about making premium payments to Chamberlain, particularly when other intuitions suggest that suggest nothing very wrong in a bit of patternrestoring redistribution by the method of taxing Chamberlain’s now enlarged earnings’ (O’Neill, ‘Nozick’s Entitlements,’ in Paul ed., Reading Nozick , p.309).
a socialist might argue that it is entirely unsurprising that people in a capitalist society have intuitions which are broadly sympathetic to capitalism. That’s how the ruling ideology works! Without some independent reason to doubt ideological criticism, it is question-begging to use this intuition against a socialist.