Anarchy, State, and Utopia: Part II
1. Complaints About the Minimal State:
a) Recall that the minimal state restricts itself to protecting
people's rights to life, liberty and property. And that's all.
b) Perhaps the main argument from most philosophers against the minimal
state is that it fails to ensure justice in the
distribution of wealth and income. This is
sometimes called 'distributive justice.'
c) A key task of political philosophy or political theory is to
discover the correct principle of distributive justice. Contrast
with moral theory.
d) There might be other arguments against it--ones Nozick does not
consider such as:
(1) It is deeply unrealistic and perhaps
impossible to realize
(2) As a regulative ideal, it is useless
because it is too far removed from the real world.
(3) It prevents the realization of widely held
community values and ideals. Call this 'the communitarian complaint.'
It sets no
goals for the minimal state. It is strictly a side constraint operation. To some extent,
he tries to address
this
complaint in Part III of AS&U.
e) But the main complaint against the minimal state and Nozick's
political philosophy is that it permits injustice in the
distribution of wealth and
income–injustice so severe that some might starve to death or at least be reduced to
utter
destitution.
f) If we assume, as everyone seems to, that it is the job of the state
to ensure justice, the minimal state is defective.
2. Distributive Justice:
a) But the term is not a neutral one. It suggests that wealth and
income are passed around, so to speak, and if it is not
done right, an injustice has been done.
Moreover, it suggests that it is the state's job to see to it that wealth and
income are properly distributed.
b) Nozick points out that there is no person or group who is entitled
to determine who gets what.
c) In this sense, there is no more a distribution of wealth and income
than there is a distribution of mates or marriage
partners.
d) But, of course, there is an issue of justice here. Nozick prefers to
use a more neutral term and talk about people's
holdings. A principle of justice in holdings
describes what justice requires in this area.
e) I will continue to use the term ‘distributive justice,' simply
because it is so entrenched.
3. The Entitlement Theory:
a) Nozick calls his theory of justice in holdings ‘the Entitlement
Theory.' It consists of three major topics:
(1) Original Acquisition of Holdings:
This tells us how unheld things may legitimately come to be held, or if you like,
owned.
Nozick adopts, with misgivings, Locke's theory, which states that people come to own
things that are
previously
unowned by mixing his labor with that thing, provided that there is "as much and as
good left in com-
mon for
others." This topic also addresses what can be owned (e.g. do people own their own
bodies and what
follows
from that?).
(2) Transfer of Holdings: This tells us
how things may be legitimately transferred–and by implication, what counts as
an
illegitimate transfer. So, it would cover gifts and voluntary exchange on the one hand,
and theft and fraud on
the other.
Such a principle will have something to say about things like copyrights, patents, and
intellectual
property.
(3) Rectification of Injustice: What do
you do when an injustice has been perpetrated. How do you right that wrong.
Let us put
this aside for a moment.
The 3 part Master Principle of the Entitlement Theory is given at the
top of p.151.
b) These three topics never get fully worked out, though he does talk
about Locke's theory; he never really gives us a
theory of justice and instead simply derives
the Master Principle from his Lockean theory of natural rights which is
foreshadowed in Chapter 3.
c) He simply assumes that it can be worked out.
4. The Principle of Rectification:
a) Basically, the idea is that if someone's holdings can be traced to
illegitimate acts, those holdings are under a cloud.
On 152 he raises a number of difficult
questions for this part of the theory.
b) There's a big problem here. Almost anyone's holdings come under a
cloud, if you trace them back. How could one
possibly apply the theory? How could one
possibly know what would have happened had certain people not had
their rights violated? Consider Indians and
African Americans. It seems to invite an endless rehashing of the past,
which can't be good for anyone.
c) And why on earth would those who have a lot go along with any
reparations scheme?
5. Different Types of Theories of Distributive Justice:
a) Nozick distinguishes two types of principles: historical and
end-result principles.
b) A principle is historical iff past actions completely determine the
justice of the holdings. An end-result principle
requires us to look beyond how people came to
hold what they have. A utilitarian or egalitarian (expl.) theory of
justice would be an end result principle.
c) Now I think he is wrong to suggest that end result principles of
justice make past actions irrelevant. Utilitarians, for
example, stress the fact that property rights
must be settled and reasonably secure if utility is to be maximized. And
Rawls stresses that his theory (which we will
talk about later) requires that people's legitimate expectations not be
frustrated.
d) That said, the definitional difference remains. If past actions
don't completely determine whether or not the distribution
is just, then it is not an historical
principle and is an end-result principle.
6. Patterning:
a) We can get a better understanding of the Entitlement Theory by
contrasting it with a subclass of other historical
principles.
b) Consider the principle: Distribution Should Be in Accordance with
Moral Merit. In this system, justice requires that
the virtuous be rich and the vicious be
poor. Or, consider a principle that says Distribution Should Be in Accordance
with Usefulness to Society, or According
to Labor Contribution, or According to Need or According to the Number
and Prestige of One's Degrees.
c) These are what Nozick calls patterned principles of distributive
justice. Definition: "Let us call a principle of distribu-
tion patterned if it specifies that a
distribution is to vary along with some natural dimension, weighted sum of natural
dimensions, or lexicographical ordering of
natural dimensions."
d) These are historical patterned principles but patterned principles
need not be historical. Distribute According to Need
or to IQ would be non-historical patterned
principles.
e) Now some of these are kind of fanciful, but not all of them are.
Some socialists favor a kind of labor theory of distri-
butive justice and some friends of capitalism
favor a principle that distributes in accordance with perceived usefulness
to society as revealed in the market place.
Still others favor Distribution according to Need.
7. The Entitlement Theory and Patterning:
a) The Entitlement Theory is not patterned. Some people get money from
gifts or bequests, gambling, interest on loans,
investments, others make for themselves most of
what they need, etc. There would be a heavy strand of the pattern:
Distribution According to Perceived
Demonstrated Usefulness to Society, which is roughly what the market produces,
but that won't be the whole story. The fact
that some people's income or wealth has nothing to do with their contributions
to society is no injustice according to the
entitlement theory.
b) Patterned theories of justice are disposed to try to fill in the
blank, ‘To Each According to his or her
.
This separates production and distribution in a way that is incompatible
with the Entitlement Theory. Things come into the
stream of commerce as already attached to people. (Digression on Mill
and the distinction between production and distribution)
8. The Workability of the Entitlement Theory:
a) Some people have argued that an unbridled capitalism cannot generate
the sources of its own support among most
people. Whether or not it is just, it will not
be seen as just. This is Irving Kristol's line. But Nozick is not impressed.
He thinks as long as people can understand the
point of the system, i.e., why some people get on top, they can live
with it.
b) People are inclined to resent the rich and to believe that one
cannot be rich unless one has acted in an unjust manner.
This is less true these days and especially in
the US, but not abroad. I think there is a kind of appeal to envy in this
case, but there might also be among many people
the idea that justice requires that virtue be rewarded and vice
punished, that people should deserve what they
get, and that an unfettered free market system will not produce that.
c) Nozick thinks that the Entitlement Theory can be widely supported
because people can see the point of the trans-
actions that produce the distribution of wealth
and income in a free market capitalist system.
d) Note that this is one of the few places where Nozick actually makes
an effort to consider "practical" problems.
9. Liberty and Patterning:
a) Let's go back to the idea of distribution according to moral
merit–what I like to call ‘cosmic justice.' Now I think you
can get people pretty quickly to the point of
seeing why this principle, even if it looks good, would be a bad one to try
to institute. You're going to have the
government do this?
b) Note the typo at the top of 158. Hayek argues that there would be
insurmountable knowledge problems in
determining moral merit, but there is a deeper
problem.
c) Now Nozick is going to argue that there is a deep conflict between
patterning and liberty.
d) This is the point of the Wilt Chamberlin example; explain in detail
how this works. See 163.1-.2 for summary.
10. More on Liberty and Patterned Principles:
a) Originally, I was very impressed by this example because
it is hard to see what the injustice is when people these
voluntary transfers.
b) The first point to make is that we have this
interference all the time in existing societies–it's the tax code. However
bad it is, it does not
require the kind of intrusiveness Nozick seems to suggest.
c) But there are other points that can be and have been
expressed in opposition here. One is that allowing unfettered
exchanges permits over time a
dangerous concentration of resources–and thus power–in the hands of some indivi-
duals at the expense of others.
Reply: Nozick might reply
that equalizing political power would require a radically egalitarian tax structure that
would hopelessly burden taxpayers
to the point where everyone would suffer.
d) Second, it might be argued that the gov't can do more
good with the tax revenues than can rich individuals who are
mostly spending it on themselves.
(This presupposes social ownership of this income.)
Reply: Nozick would object
to this on the grounds that social ownership violates Lockean rights, but we already knew
that. So far, I see no independent
argument for the Entitlement Theory here.
e) The points made in c) and d) may or may not be couched
in terms of what justice requires. There may be other good
things government can do.
11. Do All Patterned Theories of Justice Require Continual Interference?
a) Consider Hayek's suggestion at 158:
"To each according
to how much he benefits others who have the resources for benefiting those who
benefit
him."
Nozick argues that this will seem
arbitrary unless the initial hold-ings are legitimate or justified, but of course that's
what his theory of justice in
acquisition and the rectification principle come into play.
b) Someone might say that the patterned strand in a free
market system would be so heavy that the society could be
said to approximate the pattern,
and there might be good reasons not to root out the remaining "injustices."
c) So, the idea that liberty and patterning inevitably and
seriously conflict seems wrong.
Justice in Acquisition
12. Locke's Theory:
a) Basically, Nozick adopts Locke's theory, though he also
criticizes it. In the Second Treatise of Government
b) Locke says: You acquire ownership in an unowned thing by
mixing you labor with it, provided that there is as much
and as good left in common for
others.
c) This is called the Labor Theory of Acquisition and the
last clause is called ‘the Lockean Proviso.'
d) Note that unowned things really are unowned. This means
that if you are a socialist and want to maintain that society
ultimately owns things (land,
natural resources, etc.) you have to justify that. Everyone has a burden of proof when it
comes to ownership.
13. Four Questions for Locke's Theory of Ownership:
(1) What exactly does it mean to own something?
(2) Exactly what gets owned by labor mixing?
(3) Why does mixing one's labor with something
confer ownership?
(4) Does the Lockean Proviso rule out any
appropriation of unowned objects?
Nozick does not discuss (1), and his discussions of the
others are somewhat sketchy. A better account of the issues
can be found in Lawrence Becker's book, Property Rights.
14. The Rights of Ownership:
a) Ownership is not an all-or-nothing affair. It is
actually a package of rights, terms, and conditions.
b) Full, liberal ownership, which is what Locke and Nozick
believe in, consists of the following rights, terms and
conditions:
(1) the right to
exclusive physical possession
(2) the right to use
(3) the right to manage
(4) the right to the
income
(5) the right to the
capital (value), that is, if an asset changes value (up or down) the owner gets that
value.
For example, if I own stock and it increases in value, I get that value, which might be
realized on the sale
of the item.
(6) the right to
alienate (dispose of) the thing on whatever terms I choose
(7) the right to
security (immunity from expropriation)
(8) absence of term,
(9) prohibition on
harmful use
(10) the right to
pledge as security for debt incurred (alternatively, liability for execution of debt)
c) Other systems of ownership are possible, those which
assign these rights in different ways, including some socialist
ones. But everyone bears a burden
of proof.
15. What Gets Owned by Labor Mixing?
a) Appropriation must be actual rather than intentional or
declaratory.
b) Take the case of land. How much land a person can be
said to occupy depends on his purpose for occupying it and
carrying out that purpose. So, if I
till land and plant crops I come to own the land, in the ordinary sense. But what if I
just want to exclude others? Is
putting a fence around it enough? Becker says yes. That's my purpose, and I act to
carry it out.
c) Note: Thusfar we have not justified ownership; we've
just tried to clarify what is involved in appropriating the land.
16. Why Does Labor Mixing Confer Ownership?
Locke had 2 answers, two separate arguments.
a) Root Idea of the First Argument: People have
property rights in their bodies. This is supposed to entail that they
have property rights in their
labor. (Ownership of labor distinctive of capitalism–contrast with slavery and
serfdom.)
Ownership then "seeps
into" unowned objects that I mix my labor with.
b) Root Idea of the Second Argument: In producing
things from unowned objects, I "take pains" to create something
of value that would otherwise not
exist. This entitles the laborer and no one else to the product.
17. Problems with the Arguments:
a) In the second argument, it seems that the most you could
justify is a right to the added value–not all the other rights,
terms, and conditions that define
full liberal ownership.
b) The first argument faces a challenge from Nozick and
Proudhon. Nozick asks why isn't laboring on a thing a way of
losing one's labor instead of
gaining the object?
c) The larger problem with both arguments is that they seek
an illicit shift in the burden of proof. We can see this by
investigating Proudhon's Challenge.
18. Proudhon's Challenge:
a) Recall that ownership is a bundle of rights. What does
it mean to have a right? Two things:
(1) others have
duties–typically duties of non-interference
(2) those duties are coercively
backed.
b) Proudhon (who was famous for saying that property is
theft) says: Where do people who appropriate something
get off imposing these coercively
backed duties on others? After all, the imposition is unilateral. There is no consent.
c) What gives this challenge bite is the fact that full
liberal ownership is such a rich, complex notion–all those rights,
terms and conditions. While
it may be that someone is going to have to have and exercise these rights, there are lots
of other possibilities that need to
be evaluated–and the criteria of evaluation (utility?) are unclear.
19. Meeting the Challenge:
a) In an article, "Natural Property Rights as Body
Rights," Nous 14 (May 1980):171-95, Samuel L. Wheeler tries to
address this challenge.
b) He assumes we own our bodies and our body parts (limbs,
organs, etc.)
c) He then argues that none of the differences between body
parts and unowned objects we might want to appropriate
in a Lockean state of nature are
morally relevant. He does this by a series of cleverly constructed cases:
Case #1: I eat part of an
unowned cow and convert the protein into part of me. It is now my protein. In this way,
non-property becomes property.
Case #2: Suppose I lose a
leg in an accident, eat some (unowned) branches and twigs and grow a wooden leg.
Non-property has become property.
Case #3: I fashion an
artificial leg from some stuff in the dump that no one wants and attach it to my body.
Sometimes
I put it in the drawer at night.
Non-property has become property.
Case #4: I build a spare or
remote control leg, but never actually attach it. The fact that it has never been attached
seems irrelevant to its
status as property.
d) When we think about the differences between body parts
and things we mix our labor with, these differences seem
morally irrelevant:
(1) detachability?
(artificial limbs, glass eye)
(2) agent control? (I
have no control over my liver)
(3) insusceptibility to
sensation? (brains have no sensory neurons; paralyzed limbs).
e) So, he concludes, if we own our bodies, we own these
other things as well.
f) Objections?
20. The Lockean Proviso:
a) The Labor Theory has a lot of intuitive appeal, but a
problem arises insofar as the supply of unowned things is limited.
b) Appropriation by some worsens others' situation insofar
as they are no longer free to use or appropriate that object.
c) This is why he introduces the Proviso: "as much and
as good . . ." Although others are restricted their situation is not
thereby worsened as a result.
21. But Is the Proviso Ever Satisfied?
a) See the argument on p. 176
b) The Proviso would seem to require that a goodly amount
of unowned resources must always be left around for
others to use (appropriate?)
c) But Nozick thinks not.
22. The Intent of the Proviso:
a) The intent of the Proviso is to keep others' situation
from being worsened by having duties of non-interference
imposed on them.
b) If a system of private property rights does not worsen
the situation of others, then the intent of the proviso is thereby
satisfied.
c) Here is where the familiar considerations in favor of a
system of private property come into play.
(1) It increases the
social product by putting means of production into the hands of those who can use them
most
efficiently
(2) experimentation is
encouraged, since the community does not have to be persuaded of the wisdom of new ideas
(3) It allows people to
decide for themselves about what risks and how much risk they want to bear.
(4) It provides a
mechanism to get people to care about the future–holding back resources for future
production
increases present value. (Inheritance plays a role here too.)
d) This is not a utilitarian justification of private
property. Instead, it shows how a system of private property satisfies
the intent of the Lockean Proviso.
23. A Final Problem:
a) The difficulty in making the argument referred to in 22c
is what Nozick calls "fixing the baseline." When it is said
that appropriation is OK provided
the situation of others is not thereby worsened, the crucial question is, "Worsened
relative to WHAT?
b) He seems to think that the answer has got to be
determined by figuring out what people's situation would be like if
they were free to appropriate or
use land and other natural resources.
c) The bar here is pretty low. Land and natural resources
in situ account for only about 5% of the nation's wealth.
d) But I think this misses the point. Rather, the point of
comparison is other possible systems of property rights. Some
such system will be necessary
because in the absence of some system of property rights, there will be a tragedy of
the commons. (See David Schmidtz, Social
Welfare and Individual Responsibility for an argument for this.)
24. The Shadow of the Proviso:
a) The Proviso casts a shadow on future transfers of
property. I may not acquire 50% of the world's oil and buy up
all the rest.
b) Though the situation is different if I synthesize a
miracle drug out of common chemicals and sell it at an exorbitant
cost, since my appropriating
the common chemicals does not worsen the situation of others.
c) Still there will be strictures on transfers–the
Proviso popping up, as it were, under monopoly conditions.
d) The upshot is that there will be anti-trust laws in the
minimal state.
Criticisms of Rawls
24. The Problem of Distributive Justice:
a) Nozick criticizes Rawls's conception of the
problem of distributive justice.
b) Read the quotation from Rawls on ASU 183-84.
c) Two ways of defining the problem: suppose each
individual, working alone, can produce Si (total of S), but working
cooperatively,
they can produce T.
(1) Problem #1: How to divide
up the benefits and burdens of T?
(2) Problem #2: How to divide
up the benefits and burdens of T - S?
d) Rawls might say that it doesn't much matter,
since the difference between them is minimal, though N. points out that this
wouldn't be how
individuals entering into
an agreement would view it.
e) What exactly is the problem, asks Nozick, that
a theory of distributive justice is supposed to solve? He believes that any
claims individuals
would make on each other
in the absence of social cooperation would be clearly without any merit (185.3).
f) Social cooperation must involve some
"muddying of the waters" that makes it unclear or indeterminate who
should get what.
g) N. thinks his theory is clearly superior in
the pre-cooperative case.
25. Important Point: Rawls presupposes that those in the Original
Position have the right to decide these questions for everyone. This presumes
some sort of
theory of social ownership of productive assets,
or at least of some of the incidents of ownership such as income rights, rights
to the capital value, etc. It is
easy to say that people are not indifferent to
the benefits and burdens of social cooperation, but then the question is why
those in the OP should get to
decide these issues.
26. More on Muddying the Waters:
a) What happens in a market economy is that
people tend to get the marginal value product of whatever factor of production
they contribute.
this requires some
explanation. The marginal value product of a unit of a factor of production is
the difference it makes in the value of the
final product. More
precisely, the MVP of a unit of a factor of production F1 is the market value of
the output resulting from one additional
unit of input of F1. It's
the difference the unit makes to the total value of the product.
b) It is a theorem of economics that in a
competitive or free market economy, factors of production tend to earn their
marginal value product.
c) So, in a free market economy, people will tend
to get the marginal value product of whatever factors they contribute. Of
course, not everyone
will. Some will get more,
some less. Markets are in a constant state of flux. And some will get gifts from
admirers. Nozick is not arguing for a
MVP theory of
distributive justice. But there will be heavy strands of that pattern.
d) So then the question becomes, "What's the
problem Rawls is trying to solve?"
e) The problem for Rawls is further exacerbated
because his own theory requires that he be able to recognize who is contributing
more, so that they
can be given the
incentives to produce and "grow the pie" so that the least advantaged
benefit.
f) Upshot is that the problem Rawls sets out to
solve remains mysterious, or more exactly, unmotivated.
27. The Benefits of Social Cooperation: (194-197)
a) Consider now the Difference Principle: Social
and economic inequalities are supposed to work to the benefit of the least
advantaged. Rawls
supposedly gets this from
his Maximin (not minimax) Rule, which says that one should choose that
alternative that maximizes one's minimum.
b) Nozick then discusses the question of how you
justify this to someone outside of the Original Position,who presumably knows
his situation, i.e.,
talents and abilities,
socioeconomic status, and income and wealth. But why? Why justify it to someone
outside the OP? He ends this section in
a long note on 197 where
he claims that he just can't make sense of this.
c) Rawls thinks you have to justify his
principles to those not in the Original Position, especially the least
advantaged. Why? Because they have to
be given reasons to go
along with the system. He talks about the "strains of commitment,"
which he imagines must be great for the least advantaged.
Of course, they can be
forced to go along with whatever system is adopted, but Rawls is searching for
reasons why they should acquiesce. His
answer: they (i.e., the
least advantaged) should go along with the system because whatever inequalities
there are work to their advantage.
d) It is now possible to make sense out of
Nozick's complaints in here.
28. Justifying the Priniciples to Those Outside of the Original Position:
a) Maybe the less endowed gain more from social
cooperation than the better endowed. (194.1)
b) Read 195.1
c) Upshot is that this whole way of conceiving
the problem is misconceived.
The Original Position and End Result Principles
29. Nozick argues that the veil of ignorance guarantees that End Result
Principles of justice will be taken as fundamental (i.e., chosen) and that
historical principles of justice will not be
chosen. He thinks there is something fishy about that, though getting out the
exact objection is tricky
because he does not want to simply beg the
question against Rawls.
a) The basic problem is that the veil of
ignorance screens out all historical information as morally arbitrary.
b) Of course, Rawls would say that this is as it
should be and Nozick's complaints just beg the question against him. Rawls also
wants to stress that
the system creates
legitimate expectations, and it is important to honor those expectations.
c) But I think there is something to Nozick's
criticism and it comes up starting on page 213.
30. A Quick Distinction:
a) We can distinguish, as many authors do,
between talents and abilities.
b) You are born with talents.
c) Abilities are developed.
d) IQ is a talent. Good philosophical writing is
the result of ability. Same with other stuff. 31. Rawls discusses something
like the entitlement
theory under the heading
of a "system of natural liberty." Why does he reject it?
Main Reason: It allows distribution to be
determined by factors that are arbitrary from a moral point of view. What sort
of factors?
(1) natural talents
(2) socioeconomic status (which is determined by
the socioeconomic status of one's parents)
(3) race
(4) class
e) Notice, as Nozick does, that Rawls makes no mention of how
people have chosen to develop their natural talents (into abilities).
Perhaps
that is because how they choose
to develop their talents is determined by factors beyond their control, such as
their family background.
f) A quick critical point: What counts as a morally arbitrary
fact is going to depend on one's theory. It might be that natural talents are
morally
arbitrary from Rawls's point of view but
not Nozick's.
32. The Principle of Redress:
a) This principle stands behind Rawls's thinking
on his two principles of justice. He believes, intuitively, that undeserved
inequalities call for redress.
The most important such
inequalities are inequalities of natural talents and inequalities of class
and/or socioeconomic status.
b) Relate to spending on education.
c) The status of the Priniciple of Redress in
Rawls's theory is unclear. I suspect it is just an intuitively obvious principle
(that is, obvious to Rawls)
that he thinks should be
reflected in whatever principles of justice are adopted. But I am not sure about
that.
d) It has the uncomfortable consequence that
people's natural talents and developed abilities are to be regarded as
collective assets. Read 101.3
in A Theory of Justice.
We return to this point later.
33. The Positive Argument and the Negative Argument:
a) The Positive Argument is intended to show that
the distributive effects of differences in natural talents and abilities should
be nullifed.
b) The Negative Argument is intended to rebut the
argument for the claim that the effects of natural endowments ought not to be
nullified.
I am going to skip the
negative argument and focus just on the positive argument.
c) The discussion of the positive argument is
supposed to get at what might be behind Rawls's Principle of Redress.
34. The Positive Argument:
(1) Persons should deserve all and only the holdings they
have.
(2) People do not deserve their natural assets.
(3) If a person's X (partially) determines his or her Y and X
is undeserved, then so is his or her Y.
Therefore,
(4) People's holdings should not be (partially) determined by
their natural assets.
35. Rawls's View:
a) The problem is that Rawls explicitly rejects
the first premise! He does not believe that distribution should be in accordance
with desert.
(Distinguish desert from
legitimate expectations.)
b) Read passage from Rawls at 217.1. This is what
I call ‘Cosmic Justice.'
c) The entitlement theory is not patterned in
this way, so there is no presumption in favor of such a distribution.
d) Rawls wants to "iron out" the
inequalities in natural talents and abilities by taxing the better off.
36. Explain the remark at 291.3
37. Discuss the presumption in favor of equality on pps. 222-23.
38. Collective Assets