Philosophy and the Science of Human Nature

PHIL 181 - Lecture 22 - Equality II

Chapter 1. Introducing Nozick [00:00:00]

Professor Tamar Gendler: So the topic of today's lecture, as you can see from the title, is liberty. And the best way to get a sense of the project in which we will find ourselves engaged today is to contrast the opening pages of Rawls’s Theory of Justice with the opening pages of Nozick's Anarchy, State, and Utopia.

So you'll recall that when we were reading the Rawls--for some reason the remote is not working, that's a pity but there we go--you'll recall that when we were reading the Rawls, Rawls began his text by speaking of justice as the first virtue of social institutions. It plays the role with regard to the legitimacy of an institution that truth plays with regard to the legitimacy of a system of thought. Each person, says Rawls, “possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” For this reason, says Rawls famously in these opening pages, “justice denies that the loss of freedom for some is made right by a greater good shared by others.”

So Rawls is concerned with an inviolability of humanity based on a notion of justice. Nozick is also concerned with a kind of inviolability. But rather than seeing the core of that inviolability as lying in some notion of justice, he sees it as lying in a notion of rights. So he says in the opening of the preface, the first sentence which you read for today. "Individuals have rights and there are things that no person or group may do to them without violating those rights." And he goes on to say that “the minimal state limited to the narrow functions of protection against force, theft, fraud, the enforcement of contracts and so on is the most extensive state that can be justified. Any state more extensive than the minimal state violates people's rights.”

So there's something extraordinarily interesting going on in this pair of works. Both of them are concerned with the fundamental question which we first encountered in the context of Hobbes: how could it be that it's legitimate to have a state? Both of them are concerned with structuring the state in such a way that it doesn't violate that which is perceived as being on their picture as inviolable. But they differ profoundly in what sort of state they end up calling legitimate. Perhaps because at the core of Rawls’s picture lies a notion of justice, whereas at the core of Nozick's picture lies a notion of rights.

So what I want to do in today's lecture is to contrast some of the themes, which we encountered last lecture in the context of Rawls’s Theory of Justice by looking at a particular famous chapter of his colleague Robert Nozick's work, Anarchy, State, and Utopia. Even from the brief selections that you read from these two works, the differences between them should have been evident to you. They were written a mere three years apart. Rawls’s Theory of Justice was published in 1971. Nozick's Anarchy, State, and Utopia three years later in 1974. Rawls and Nozick at the time had offices down the hall from one another.

But Rawls’s work, as you will feel, is part of a major philosophical project. It's extraordinarily self reflective. Rawls is in his middle age when he writes it. And he's been thinking about these questions for decades. Nozick's book is an extraordinarily insightful response to Rawls, as well as being a positive formulation of a view. But it's not a work with the gravitas of Theory of Justice. It was written when Nozick was quite young. He was in his early 30s. And it's important to know that although these works are typically paired in philosophy courses,--(if you took--or are taking--Moral Foundations of Politics or an introductory political theory course, you will get these two books paired together.)--Theory of Justice is, if you look at its citation index, more than three times more influential, if that's the measure, than Anarchy, State, and Utopia. So Theory of Justice’s Google Scholar citation is roughly 30,000 whereas Anarchy, State, and Utopia is roughly 10,000. These are extraordinarily high numbers in philosophy. Those of you who have encountered works in other domains of philosophy, for example Kripke's Naming and Necessity, written at about this time, its citation numbers are about half that of Anarchy, State, and Utopia, about 5,000.

So what I want you to take home from this is the idea that these are enormously influential works with consequences far beyond academic philosophy, but that they differ in their tone.

Chapter 2. Justice in Holdings [00:06:28]

So Anarchy, State, and Utopia is an attempt to defend the minimal state from two different kinds of objections. In the first part of the work, Nozick defends the state against the position of anarchy. He argues that a minimal state is justified, that it's not the case that it's a violation of people's rights to have basic enforcement of laws, police and the sort of fundamental things that are required for the basic stability of getting out of Hobbes's state of nature.

The second part of the book, with which our reading was concerned, defends the minimal state against a more maximalist picture. And in that part of the book, Nozick defends the rights of people to liberty in two kinds of domains. The first is that he defends people's rights to enter into almost any sort of contract that they would like. He defends, for example, the right of people under certain conditions to contract themselves into slavery. He defends, in other contexts, the right to have an enforceable blackmail contract.

That's not the part of the book which we read excerpts from. The part of the book that we read excerpts from, and to which the remainder of lecture will be devoted, is Nozick's discussion of our relation to property. So what Nozick tries to do in the famous seventh chapter of Anarchy, State, and Utopia is to articulate a notion of justice in holdings--that is, justice with respect to property--that provides a principled explanation of the relation among the three different kinds of concerns that one has in asking about whether it's legitimate for a person to own a piece of property.

The first is the question of justice in acquisition. Under what conditions--when I initially come to acquire something, say a tomato--is my acquisition of it such that my ownership of the object is in keeping with the conditions of justice? And we'll talk about Nozick's views on justice in acquisition in a minute.

The second question that Nozick is concerned with here is the question of justice in transfer. So he's concerned with the question, if I have an object and I wish to transfer possession of that object to you, under what conditions is that transfer justice-preserving?

And finally, Nozick is concerned with the question of rectification of injustice. So suppose I own something which you illegitimately take from me, under what conditions and how do I reclaim possession of that object?

Nozick's argument is that we can say everything that needs to be said about justice in holdings--everything that needs to be said about the distribution of property in a society that doesn't violate people's rights--by appeal to an inductive definition that runs as follows. He says, "If a person acquires a holding in keeping with the principle of justice in acquisition, the person, p, is entitled to the holding." So, if I come to own something in a way that is legitimate, rule-following, my owning of that object is in keeping with the rules of justice.

The second clause is an induction clause. "If a person acquires a holding, in keeping with the principle of justice in transfer, from somebody who was entitled--either as a result of a transfer or as the result of an initial acquisition--to hold that object, then the person is entitled to hold that object.”

And finally, Nozick has a closure clause. "No one is entitled to a holding except by repeated applications of one and two."

Now those of you who have taken mathematics are familiar with this sort of definition. If I wanted to provide an inductive definition of the natural numbers, I might begin by saying “one is a member of the set of natural numbers.” That's my base clause. I then add, “if anything is a member of the set of natural numbers, then that plus one is a member of the set of natural numbers”. And then I put in place some sort of closure condition such that “the natural numbers,” for example, “are all and only those things that satisfy the first and second clause.”

So the picture that Nozick is providing us with here is one that gives us a certain kind of closed system. So let's see how it works in a particular case. Nozick stresses that when you make use of the principles that he's articulated here, what matters is the process not the outcome. So suppose I come to possess a tomato. It makes all the difference in the world, on Nozick's view, what the actual process by which I came to possess that object is. If, for example, there was a garden down the road from me, which I didn't own, where a beautiful tomato sat, and I took that tomato without permission, my possession of that tomato is illegitimate. Hmm. Even if there is an alternative process--a hypothetical one--which I didn't in fact engage in whereby I could have come to have that tomato legitimately. If a thief takes your property, says Nozick, it doesn't make his possession of your property legitimate even if you could have voluntarily given it to him.

Moreover, says Nozick, if I come to possess something illegitimately and I transfer it to you--even by legitimate means--it retains its illegitimate status. So the picture that Nozick is presenting in his discussion of holdings is one with the following characteristics. Justice in holdings--and this will be important for his critique of Rawls--justice in holdings is historical. It depends on what actually happened. In particular, if something is owned as the result of an unjust acquisition, it produces an unjust holding. If something is owned as the result of an unjust acquisition plus a just transfer, it still produces an unjust holding. If something is owned as the results of a just acquisition and an unjust transfer, it produces an unjust holding. And if something is owned as a result of an unjust acquisition and an unjust transfer, it's not that these two injustices cancel one another out. Rather we have, again, an unjust holding.

It's only under two conditions that holdings are just on Nozick's picture. The first is if it's a straightforward just acquisition. And the second is if there's a just acquisition followed by one or more just transfers.

So far this isn't getting Nozick very far in terms of a critique of Rawls. But the next step will allow you to see how this notion of justice in property does work on the Nozick picture. What Nozick goes on to say is that the holdings of a person are just if he's entitled to them by the principles of justice in acquisition and transfer or in imperfect situations by the principle of rectification. That is, it is a necessary condition on justice in holding that they have been acquired through one of these two steps. But it is also a sufficient condition. If each person's holdings are just then there are no more questions to be asked about the aggregation of holdings. If each person's holdings are just, then the distribution of holdings is just.

So we'll see when we get to justice in transfer how it is that this notion, both of taking historical properties as the relevant ones in determining justice and in taking the inductive property holding characterization as necessary and sufficient for justice in holdings, how it is that those pair of things provides Nozick with the leverage to criticize the outlook to which all of you from behind the veil of ignorance last class-- or the majority of you from behind the veil of ignorance last class-- seems to think was what justice mandated. That is, Nozick takes from this very simple picture an argument, which from his perspective renders illegitimate any sort of centralized redistribution of resources.

Chapter 3. The Lockean Proviso [00:18:22]

So you remember, in order to evaluate Nozick's inductive definition, that we need to know what it is that he thinks justice in acquisition involves. And what it is that he thinks justice in transfer involves. So the discussion of justice in acquisition is a rather complicated portion of the text that I had you read for today's class. What Nozick does is to make appeal to the work of the 17th century philosopher John Locke, whose Second Treatise on Government begins its discussion of property as follows. Locke writes, "Though the Earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labor of his body and the work of his hands we may say are properly his."

So on Locke's picture of the state of nature there's a world out there unowned. We're setting aside a set of concerns about whether this picture--that the Earth and all inferior creatures belong in any principled sense to human beings--and rather looking at what it is that Locke's argument for the justice in acquisition clause involves. So Locke says, the world out there of objects doesn't belong to anybody. But what each person does have is the rights to his or her own body and, in particular, possession, ownership rights over his labor.

So, says Locke, "Whatsoever he removes out of the state that nature hath provided and left in it he hath mixed his labor with and joined it to something that is his own and thereby makes it his property." Concluding, "It being by him removed from the common state nature placed it in, it hath by this labor something annexed to it that excludes the common right of other men. For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least when there is enough, and as good, left in common for others."

So Nozick takes from this discussion of Locke two things. The first thing he takes is the idea that what justice in acquisition involves is a certain kind of mixing of what is one's own, one's labor, with something that is previously unowned--potential property in the state of nature. And although Nozick has all sorts of criticisms about the unclarity of this characterization. He says, for example, "If I go to Mars and sweep off a portion of the planet, have I thereby claimed just that portion? Have I claimed the entire planet of Mars? Have I claimed all of the planets that lie beyond it?" He also asks why it is that mixing one's labor with something should lead to possession of the object rather than the losing of one's labor. But ultimately he's willing to accept that something like the Lockean picture is going to underlie justice in acquisition.

What worries him, and what he devotes the bulk of the selection that you read for last night to, is this concern about whether what he calls the Lockean Proviso, the idea that in order for acquisition to be legitimate there needs to be enough and as good left in common for others. Whether that Proviso is frequently violated. Because if that Proviso were frequently violated then justice in acquisitions wouldn't be simple and straightforward in the way that Nozick wants it to be.

So the basic structure of the argument that you read--and I'll run through it in more detail in a minute--the basic structure of the argument that you read in the context of Nozick's discussion of Locke runs as follows. Locke has a reasonable picture of what acquisition of property involves. We need to fuss with it around the edges but I'm not going to worry about that, says Nozick. What I am going to worry about is whether this notion of there being “enough and as good left in common for others” is going to undercut the whole Lockean picture.

So what's the idea look like? Suppose that four of us come upon a field of previously unclaimed cows. And that one of us claims four of the cows. And then a second of us claims six of the cows and a third of us claims the remaining six cows. Has the Lockean Proviso been violated? Nozick's first worry, which he calls the unzipping worry, is that perhaps it's not just the blue character who took the last six cows who's violated the Lockean Proviso. Perhaps the yellow character, in limiting the blue character, has violated it and the red character, in limiting the yellow character by limiting the blue character, has somehow violated the Lockean Proviso.

Nozick says no. The fact that the red character's activities limited the yellow character's activities, if we took into consideration the blue character's activities, is not sufficient to render red or yellow in violation of the Lockean Proviso. So that's step one.

But we still might wonder whether the blue character has violated the Lockean Proviso. After all, how could he have left as much and as good for our fourth character--pink over here--if pink isn't in a position to get any cows? Nozick's answer is that in taking on ownership of objects and mixing one's labor with them, typically what the subject does is to increase the value of those objects for all. So red, from his four cows, might produce one gallon of milk. And yellow might produce two and blue might produce three. As a result, pink--though he doesn't have access to the cows--is better off. And, says Nozick, the Lockean Proviso has not been violated.

So what Nozick says in particular, is he asks whether the situation of persons who are unable to appropriate--there being no more accessible and unowned objects--is their situation worsened by a system of allowing appropriation and private property? And the answer he gives is a resounding no. For exactly the sort of reasons that we're familiar with from our Hobbes case--the idea that there is a kind of social contract that kicks in that allows everybody to benefit. And also because Nozick firmly believes that individual ownership brings with it a particular kind of efficiency.

So Nozick's worry, which was: is the Lockean Proviso going to knock my theory out of the water such that I can't get the base clause of my inductive argument going? Nozick's conclusion is that appropriation of private property satisfies the intent behind the “enough and as good left over” Proviso.

But, he is careful to point out, this is not based on utilitarian reasoning. It's not based on a utilitarian justification of property. Nozick--like Rawls--is concerned with articulating a rights based theory. And so, like Rawls, doesn't allow trade-offs of rights for utilities. So the argument about the original acquisition of property runs as follows. Nozick says, I have the right to do everything that doesn't harm others and the right to do only what doesn't harm others. My rights begin and end in their restrictions and permissions with consideration of what brings harm to others.

Violating the Lockean Proviso, if I managed to do that, would leave others worse off than they would have been otherwise and consequently would harm them. As a consequence, says Nozick, I don't have the right to violate the Lockean Proviso. If, as a matter of fact, my original acquisition of property doesn't leave as much and as good for others, then my original acquisition was not an instance of just property ownership. But, says Nozick, except in very rare cases--he calls them conditions of catastrophe or desert island limitations--acquiring property doesn't violate the Lockean Proviso or harm others. And the argument for this sub-clause, this sub-argument, is a utility-based argument. It's on the grounds of utility that I get the premise that except in rare cases acquiring property doesn't violate the Lockean Proviso.

But the fundamental argument, I have the right to do all and only what doesn't harm others. Except in very rare cases acquiring property does not violate the Lockean Proviso and harm others. That one, plus four, is sufficient to give us the conclusion that except in very rare cases I have the right to acquire property. So that is, by way of exposition, of what I understand to have been a fairly difficult part of the assigned text.

Chapter 4. The Wilt Chamberlain Argument [00:30:42]

So let's move now to an easier segment of the text. So as we noted, Nozick provides his defense of the base clause by appeal to Locke's notion of original acquisition of property and defends that against the potential objection--the Lockean Proviso objection--in providing a clearer sense of what that amounts to. In many ways the most famous part of the text comes in Nozick's defense of the induction clause.

So in defending the induction clause--which, remember, says that if P acquires H, in keeping with the principle of justice in transfer, from somebody already entitled, that P is entitled to H--Nozick is concerned with what justice in transfer amounts to.

So he begins by distinguishing something that should be familiar to all of you from your readings of Mill and Kant earlier this semester. He distinguishes between principles that are historical--that is that tell us that whether a distribution is just depends upon how it came about. That is, what we are concerned with when we are concerned about justice is a question of process. And he contrasts those with what he calls end-result principles where, whether a distribution is just depends upon how things are distributed.

So you'll remember that when we were reading Kant and trying to determine whether an action counted as moral or morally praiseworthy, Kant was concerned about the process by which that action was carried out. Mill, by contrast, was concerned with outcome. Nozick goes on, in the opening parts of chapter seven that we read, to provide a defense of historical principles and to argue that one consequence of that will be that we can never judge the justice of a society by looking at how its goods are distributed. So, he points out, it has been typical in the articulation of theories of justice, to claim that a society is just if goods are distributed according to some sort of independently specifiable criterion. For example, distribute goods according to the moral merit of those who receive them, or according to the intelligence of those who receive them, or according to the effort that individuals put in, or according to their need for the objects that you distribute.

Nozick points out that people want their society to look just. And they also want their society to be just. But in asking their society to look just, Nozick thinks they make a mistake if they take pattern as a way of determining legitimate outcome. Must the look of justice, asks Nozick, reside in a resulting pattern, which we can specify independently and in advance rather than in the underlying generating principles?

And to think about this, it's helpful to help ourselves to a three-way distinction that John Rawls makes in the context of Theory of Justice. Rawls distinguishes between three kinds of procedural justice there. The first is a notion of what he calls perfect procedural justice. This is a case where we have an independent criterion for what the right result of our act will be and a procedure that is certain to give us that result. So, for example, if I'm trying to divide a cake, of which all of us want pieces, there's an independent criterion for the right result. Namely each of us gets a piece of exactly the same size. And there's a sure procedure for arriving at that result. What I do is I allow one person to slice and that is the person who chooses his piece last. So long as he's in a position to make precise cuts, the result of this procedure will always give us what it is that we independently specified as the outcome we sought. We want equal slices, we have an independent criterion for the right result, and we have a sure procedure. He who slices chooses last.

By contrast, in most situations, what we find ourselves in is a condition where our only choice is what Rawls calls imperfect procedural justice. Where we have an independent criterion for the right result but the procedure we have for achieving that result is imperfect. So for example, in the legal system we have a goal of convicting all and only those who are guilty of a crime. We have a clear sense of what the right result will be. But though we have a procedure which presumably does a good deal better than chance, it is undeniable that on occasion the guilty go free. And likewise undeniable that on occasion the innocent are convicted.

The third kind of procedural justice is what Rawls calls pure procedural justice. This is a case where we have no independent way of specifying the result. And what we do is we adopt a procedure by which we will carry out in real time, in actuality, some sort of distribution. And as the result of having followed that procedure, whichever distribution arises is fair. So gambling has this structure. There is a rule that we have. We all pays our money and then we takes our chances. And whatever distribution of outcomes results from that is legitimate.

Nozick's claim is that the distribution of property in a society ought to be understood as subject, not to some sort of perfect or imperfect procedural justice. That is, there's no independent criterion for how it is that goods ought to be distributed across people. Rather, it's simply a matter of living historically through a process whereby things are required in just fashion and transferred in just fashion, and seeing how it is that things distribute themselves.

So in contrast to some sort of pattern picture, Marx has this idea, “from each according to his ability; to each according to his needs.” That's an idea that there's an independent criterion of how things should be distributed. Nozick provides, in contrast, this rather complicated articulation: “from each according to what he chooses to do and roughly to each as they are chosen.” That is, however things distribute themselves, as long as the process is fair, will end up being fair.

And this gives rise to Nozick's famous argument that liberty upsets patterns. So Nozick asks us to imagine a world in which all of our friends from behind the veil of ignorance are given whatever equal share you give them in your fair distribution. So each of them ends up with a piggy bank of the appropriate size. But all of them, says Nozick, are basketball fans and they choose to take a quarter of their own money and to deposit it in the bank account of Wilt Chamberlain. And so do their friends and so do their friends and so do their friends until, as the result of people freely doing what a legitimate transfer permits, Wilt Chamberlain comes to have so much money that his piggy bank gets blurry on the slide. He's that extraordinarily wealthy.

Now Nozick takes the Wilt Chamberlain example to have two implications. The first is a descriptive implication. The general point, he says, illustrated by the Wilt Chamberlain example is that no end-state principle or distributional pattern principle of justice can be continuously realized without continuous interference in people's lives. Any favored pattern will be transformed into an unfavored pattern by the principle--by people exchanging goods and services with other people or giving things to other people, things that the transferers are entitled to under the favored distribution pattern. To maintain a pattern, one must either interfere with the process of transferring resources, or interfere in such a way that one takes away from somebody who has legitimately acquired their pile of quarters and redistribute that. To maintain a pattern, says Nozick, one must either interfere to stop people from transferring resources as they wish to. or interfere to take from them resources that others chose to transfer to them.

So that's the descriptive implication of the Wilt Chamberlain example. There's also a normative implication of the Wilt Chamberlain example. Nozick says this, look if D1, the initial distribution where each of our characters from behind the veil of ignorance had their piggy bank, D1 was a just distribution. And people voluntarily moved from D1 to D2, the one where Wilt Chamberlain ended up with the large amount of quarters. Transferring parts of their shares that they were given under D1, isn't D2 also just? If the people were entitled to dispose of the resources to which they were entitled under D1 one, didn't this include their being entitled to give to, or exchange it with Wilt Chamberlain? Can anyone else complain on grounds of justice? Each other person, says Nozick, already has his legitimate share under D1 and after someone transfers something to Wilt Chamberlain, their shares are not changed.

So the descriptive claim is that liberty will inevitably upset patterns. And the normative claim is that in so doing, no injustice has occurred. I'm going to close with two reasons that one might think that this argument doesn't work as cleanly as Nozick would think.

The first we've encountered already, which is that many more situations have the structure of the problem of the commons than one might antecedently realize. And it's not always the case that individual transactions between pairs of people don't carry with them third-party consequences.

The second is that it is sometimes the case that distributions of resources across individuals in unequal ways produces violations of the sorts of freedoms that Nozick wants to defend. So suppose we start out with two groups of people, each of whom have roughly similar amounts of money. And they send their children to school with one another and share the same set of teachers. Suppose that one of those groups, through legitimate transfers from D1 to D2, comes to possess a much larger amount of money and create another school where they send their children and where they hire the teachers who were the most gifted. It may become the case that simply as the result of people having engaged in behavior that involved a series of independently legitimate transfers, the situation that results may impede the freedom of these children to become citizens of the sort whose rights Nozick wishes to defend.

So it's 11:20 now. And we'll finish up today's lecture here. And move next lecture to finish up with Nozick’s discussion of justice in holdings and to think about that in the context of some work in social psychology.

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