Rawls vs. Nozick A dialogue
In 1971, John Rawls published A Theory of Justice outlining a political philosophy of Justice as Fairness. In 1974, Robert Nozick wrote, what some have called, a rebuttal to Rawls’ theory in his book Anarchy, State, and Utopia. In it, he calls Rawls’ work: “...a powerful, deep, subtle, wide-ranging, systemic work in political and moral philosophy which has not seen its like since the writings of John Stuart Mill...”. He goes on to say, “Political philosophers now must work within Rawls’ theory or explain why not” (Nozick, Ch. 7, sec “Rawls’ Theory”). But even in his extreme praise, Nozick is hesitant to illuminate any specific part of Rawls’ thesis that he agrees with and, instead, limits his work to points of conflict (as he sees them). From these points of conflict, Nozick generates his own political philosophy called “Entitlement Theory.” The main thrust of his argument is that for society to provide for the have-nots is to impinge on the freedoms of the haves (i.e. it demands constant intervention by the political body and the stripping and redistribution of property/ownership/rights from those who have “justly” acquired them). Rawls’ distributive justice, Nozick argues, works in opposition to the freedoms of all men, that it is a “patterned principle” and an “end-state principle” (Nozick, Ch. 7. “Patterning...”), and therefore will eventually be impeded by the liberty of individual humans or the liberty of individual humans will be impeded by it. He says, “...any derivations from end-state principles of approximations of the principles of acquisition, transfer, and rectification would strike one as similar to utilitarian contortions in trying to derive (approximations of) usual precepts of justice; they do not yield the particular result desired, and they produce the wrong reasons for the sort of result they try to get.” (Nozick, Ch. 7, sec “The Original Position...”). To translate, Rawls’ design of Justice as Fairness cannot stay within the designed pattern without intervention of the political body and therefore, by design, will eventually harm/impinge the “precepts of justice” Rawls’ theory advocates.
The following, imagined dialogue between Rawls and Nozick hopes to illuminate not only their opposing concepts and define them, but to show the cracks and contradictions (and strange agreements) that emerge specifically in Nozick’s rebuttal. I will draw from their own works (Nozick’s Anarchy, State, and Utopia and Rawls’ 1985 essay “Justice as Fairness”). Unfortunately for Nozick, he’s right when he says, “Political philosophers must work within Rawls’ theory or explain why not.” It is Nozick’s job to explain himself and his thinking and show us, to mangle a boxing metaphor, where he’s landed clean blows (and that all of his blows are above the belt). Or to quote Omar Little from the HBO television show The Wire, “You come at the King, you best not miss.”
ROBERT NOZICK: I read and very much admired your work.
JOHN RAWLS: You say that, but I’ve seen your rebuttal in Anarchy, State, and Utopia.and I am not so sure where your admiration lies.
JR: Your engagement with my theory of distributive justice, based on my belief in justice as fairness, seems to be superficial and, at least, seems to reject my definition of justice as fairness especially in regards to how the state, or political body, would have to intervene to make fairness a reality. Where my concern lies with the least advantaged, yours seems to lie with the most. You appear, time and again, to indulge in the myth of peoples’ disadvantages as being of their own doing. You say, “From each according to what he chooses to do, to each according to what he makes for himself (perhaps with the contracted aid of others) and what others choose to do for him and choose to give him of what they’ve been given previously (under this maxim) and haven’t yet expended or transferred.” (Nozick, Ch. 7, Sec. “Patterning”). Or, crudely, that they must, figuratively if not literally, pull themselves up by the bootstraps while ignoring that a lot of these have-nots aren’t born with boots to begin with (and, unfathomably, that this is somehow of their own making).
RN: I agree that we disagree on the concept of fairness. Your boot analogy holds little sway though. If the boots have been acquired justly, to have the state intervene to redistribute these boots, is, indeed, to infringe on the rights of the person who’s talents and labor went into justly acquiring them. To intervene broadly, as your justice as fairness would recommend, without knowledge of whether or not thiswealth was justly acquired, risks infringement on those living and earning a just entitlement.
JR: But you allow that some wealth and advantage that exists now has been derived via unjust means. You acknowledge this when you say, “Some people steal from others, or defraud them, or enslave them, seizing their product and preventing them from living as they choose, or forcibly exclude others from competing in exchanges.” (Nozick, Ch. 7, Sec. “The Entitlement Theory”)
RN: Yes. And I go on to say that, “none of these are permissible modes of transition from one situation to another.” It is an important principle of my “Entitlement Theory”. The first two principles, of course, are as follows: one, “[a] person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.” And two, “[a] person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.” (Nozick, Ch. 7, Sec. “The Entitlement Theory”) Any existence of injustice or infringement of the first two principles raises the third principle: rectification of that injustice in holdings. My Entitlement Theory, by design, allows a remedy for any historical injustice.
JR: So you admit that in our current state, that some of the strife and disparity we witness is not simply the natural extension of just entitlements? It is not as simple as boots and bootstraps. That present injustice (and inequality) might be traced back to an original injustice, and that our modern concepts of wealth and justice, even the conception of your “Entitlement Theory”, might just be entangled with and originate from a premise of unjust acts (like theft, fraud, or slavery etc.)?
RN: I acknowledged this, but I ask: What now? How can we rectify these injustices? How can we know them? “If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices?” (Nozick, Ch. 7, sec. “The Entitlement Theory”).
JR: I have a suggestion. Justice as fairness! As I have said before, “the conditions for a fair agreement between equal persons on the first principles of justice for that structure must eliminate the bargaining advantage that inevitably arise over time within any society as a result of cumulative and historical tendencies.” (Rawls, 16; emphasis added). My “cumulative and historical tendencies” implies that the bargaining advantage that arises (via the accumulation of political power, wealth, native endowments) may also include disparities that have occurred via your concept of unjust acquisitions. I would go so far as to say, as your bafflement alludes to on this subject, that just and unjust acquisitions throughout history are inextricably and forever entangled.
RN: But you do not present direct accusations of injustice. You make no attempt to untangle the mess.
JR: We are both guilty of that, it seems.
RN: Instead, you broadly paint those with advantages as having come to those advantages via unjust practices. Meaning, that in the application of your theory, within its basic structure, you will harm those who have committed no injustice.
JR: I would say my position is less nuanced than that. I would say that any advantage – be it political power, or wealth, or native endowments – that allow for a “threat advantage” cannot be the basis of political justice (Rawls 16). I am not so concerned with how the power imbalance arises (historically, like you are), but how that power imbalance acts to oppress and destabilize right now and into the future. I allow for rectification of unjust acquisition by assuming that any threat advantage is unjust and will always be an imposition by the haves over the have-nots, those with boots and those on bare feet, implicitly. I am working from an original position, where absent the presence of any threat advantage, its negotiators, on the premise of justice as fairness, “...regards all our judgments, whatever their level of generality... as capable of having for us a certain intrinsic reasonableness.” (Rawls 30). We, when stripped of our arbitrary threat advantages (and the disadvantages they create), not only want to ensure a basic structure that allows for anyone to pursue the life they so choose, but also for no one to be left behind, forgotten, or be taken advantaged of in pursuit of the lives we so choose. This is a reasonable position. This is justice as fairness.
RN: This is what you would define as the “difference principle”?
JR: The difference principle is found within the second of my two principles of justice. The first principle being that “Each person has the same indefeasible claim to a fully adequate scheme of basic liberties, which scheme is compatible with the same scheme of liberties for all.” And the second being, “Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions open to all under the conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (the difference principle)” (Rawls 42-43). In other words, any inequalities that naturally arise from the first principle, must, too, benefit those at the least advantage.
RN: You know what I’m going to say.
RN: Well, yes. But first I want to briefly discuss Locke’s theory of acquisition and his famous proviso. And how, from this, I get to Wilt Chamberlain, and locate the crack in your system of justice as fairness – namely that it is a patterned principle and how patterned principles, or end-state principles, will always be disrupted by human liberty.
JR: Okay. Tell me about Locke.
RN: Simply, “Locke views property rights in an unowned object as originating through someone’s mixing his labor with it.” But “[t]his gives rise to many questions. What are the boundaries of what labor is mixed with? If a private astronaut clears a place on Mars, has he mixed his labor with (so that he comes to own) the whole planet, the whole uninhabited universe, or just a particular plot?” (Nozick, Ch. 7. “Locke’s Theory”).
JR: Why use an astronaut for your analogy when Locke provides a simple rendering of his property formula via the “Wild Indian.” He says, “The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so is his— i.e., a part of him, that another can no longer have any right to it before it can do [the Wild Indian] any good for the support of his life.” (Locke 116; emphasis added). If the “Wild Indian” eats the venison, it is in his belly and the calories consumed are processed and delivered about his system to maintain his body and thereby his life. The venison and the fruit he has consumed are his property and no one else’s. He has “fenced” it off behind his organs. For another human to acquire what is in the “Wild Indian’s” belly would be for that other person to cut it out from him. But I would think this falls within your conception of unjust acquisition?
RN: It does. And is exactly my point. At what point does the venison become his property? When he ate it? When he cooked it? When he dressed it? When he killed it? When he picked up its tracks and saw it for the first time?
JR: Locke would argue, “The labour that was [his], removing [the object that was held in common] out of that common state they were in, hath fixed [his] property in them.” (Locke 117).
RN: Okay, for argument’s sake, let’s say property begins when the “Wild Indian” removes the venison from the commons, when he kills it, when he realizes the fruits of his labor. But before he can remove it from the commons, Locke’s proviso comes into play. “For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to [that which was removed via his labor from what is commonly held in nature], at least where there is enough, and as good left in common for others” (Locke 116). That is to say that the taking of the venison is just so long as there are other venison held in common, so that the “Wild Indian’s” fellow humans are not disadvantaged by him making this venison his property. That is to say that, “Locke’s proviso... is meant to ensure that the situation of others is not worsened.” (Nozick, Ch. 7, sec. “Locke’s Theory...”). But there is an argument that this proviso introduces a problematic end point where, if all the venison are claimed by the labours of human beings, that the natural end point would be to the disadvantage of whomever did not lay claim or apply their labor to the acquisition of the venison. For, ultimately, to own something (of a finite nature – like venison) is to say someone else cannot own it and eventually disadvantage and inequality will emerge. This is all to say, “Someone may be made worse off by another’s appropriation in two ways: first, by losing the opportunity to improve his situation by a particular appropriation...; and second, by no longer being able to use freely (without appropriation) what he previously could. A stringent requirement that another not be made worse off by an appropriation would exclude the first way if nothing else counterbalances the diminution in opportunity, as well as the second” (Nozick, Ch 7. Sec. “Locke’s theory....”).
JR: The difference principle, you might say, is a stringent requirement not dissimilar to Locke’s proviso?
JR: And how does Wilt Chamberlin come into play here?
RN: As an example of my Entitlement Theory, one not predicated on the need for a difference principle or a proviso, but instead a demonstration of wealth acquisition that is just and has no need of state interference (or a minimal need). It is based on the fictional situation that Wilt Chamberlain, being so sought after for his basketball talents, signs a contract that twenty-five cents from the price of each ticket of admission goes to him. “The season starts, and people cheerfully attend his team’s games; they buy their tickets, each time dropping a separate twenty-five cents of their admission price into a special box with Chamberlain’s name on it. They are excited about seeing him play; it is worth the total admission price to them. Let us suppose that in one season one million persons attend his home games, and Wilt Chamberlain winds up with $250,000, a much larger sum than the average income and larger even than anyone else has.” (Nozick, Ch. 7. Sec. “How Liberty Upsets...”). Is he not entitled to this wealth, this advantage?
JR: Ignoring whether or not this plays within my own theory, I’m not sure this example can even live up to your own standards.
JR: The third principle of your Entitlement Theory acts to rectify any unjust acquisition.
RN: But I have demonstrated that that Wilt Chamberlain’s $250k was acquire via the first two principles.
JR: Yes, but you don’t account for the origin of all those quarters and whether or not each and every of those one million quarters were justly acquired. Not to mention the facilities in which the game is being played, and the owners of Wilt’s team, where did their wealth originate?
RN: This does not undercut the premise of Wilt’s just entitlement to that $250k. If injustice can be proven, it, too, can be rectified.
JR: And, say, hypothetically, those ticket buyers were all slaveholders. That not only did the quarter they gave Wilt Chamberlain derive from the labour of slaves, but the full ticket price too. Your third principle calls for an intervention, does it not?
JR: By amending your fiction even slightly with my fiction of 1 million slaveholders, we render Wilt’s natural endowments meaningless if the value of his labor is being paid for by unjust means. Before you protest, we know that your theory can be applied to the concept of slave reparations. Matt Bruenig discusses this briefly in a short article he wrote for the think tank Demos in 2014. He quotes you as saying “If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized.” (Nozick, Ch. 7, “The Entitlement Theory”). He rewords this to say, “If the actual holdings of property do not match the holdings that would have resulted under the conditions of justice, then steps must be taken to rectify that and place things back in just order.” In other words, Bruenig continues: “That's the most straightforward reparations argument there is.” (Bruenig “Robert Nozick agrees...”). Because the injustice of slavery is so vast and insidious and woven into the texture of all American wealth, rectification of this injustice would devastate the US economy (as we know it). Just like the realization that Wilt’s fictional $250k, and the fictional ticket prices, were being paid for by unjust means would necessitate a rectification (to put things in just order) that would devastate (force a redistribution of) not only Wilt’s $250K, but all revenues that the owners acquired and used to maintain their business and the facilities in which Wilt plays (including the pay cheques of Wilt and his teammates). For your Entitlement Theory to work, the third principle must be applied before the first two can come into effect. Just order must be restored. Even if all just acquisitions follow from one unjust acquisition, no following acquisition can be just. Your rules, not mine.
RN: But I did wonder, out loud, “Is an injustice done to someone whose holding was itself based upon an unrectified injustice?”(Nozick, Ch. 7. Sec. “The Entitlement Theory”). Is it not an injustice, in our fictional scenario, if Wilt’s just acquisition of wealth is used to rectify past injustices?
JR: So you would let an injustice stand rather than find an alternative to alleviate the encumbrances of threat advantages (like political power, wealth, and natural endowments) acquired via unjust practices?
RN: Ideally no rights would be impinged.
JR: Indeed. But rights have been impinged; they have led to inequalities and threat advantages in negotiating the basic structure of society. Your theory does little to rectify these imbalances; you even say you’re not really concerned with the specifics only the generalities of your theory (Nozick. Ch. 7. Sec. “The Entitlement Theory”). Even though you can acknowledge that these disparities exist and that some are derived by unjust measures, you still insist that one’s worth is their ability to tug on their own bootstraps. It is a troubling position to take, since, we established earlier, that it is hard to untangle the just or unjust origins of the person who wears boots and the person in bare feet (and what exactly their own abilities had in effecting their position or whether their circumstance arose out of an unjust imbalance). If Wilt’s wealth, like America’s, was built on the back of slavery, well, then as William Faulkner said about the injustice of the death of Emmett Till: “...if we in America have reached that point in our desperate culture when we must murder children, no matter for what reason or for what color, we don’t deserve to survive, and probably won’t.” (Stein, “William Faulkner...”). If we allow injustice to stand, or to wipe the slate clean as you put it, even if from here until eternity all acquisitions are just and follow the three principles of your Entitlement Theory, we will forever be haunted by those injustices – by the slow deterioration of society into ever greater extremes of those who have and those who have not.
Contrasting these two thinkers is an interesting challenge because, it is obvious, Nozick is inspired by Rawls’ thesis (he is an acolyte and a heretic at the same time). But his arguments tend toward the narrow, the specific, the arcane, and his formulations always support the haves and always place the have-nots in a weaker position (of having to beg or wait for the volunteer charity of others – the charity, of course, being generated by the surplus of the haves’ Nozickian “just” ownership of resources). He also doesn’t seem interested in collective political stability the way Rawls is interested in it. Though he does allow for a minimal state to maintain some form of coercive power to maintain some form of political stability (favoring, again, those who already have vs. those who have-not). He allows for this via his concept of liberty and by evoking that old cliché: that the have-nots are in their circumstance by their free will, that they need to pull themselves up by the bootstraps to overcome those circumstances. He openly ignores that a lot of these have-nots aren’t born with boots to begin with and privileges those who not only have one pair of boots, but may have more pairs of boots than their feet can fill (and that they may have come to this wealth of boots via unjust practices – either directly or indirectly). The third principle of his Entitlement Theory allows for the rectification of injustices, but as shown with slave reparations and my fictional Rawls’ amendment of the Chamberlin allegory, it doesn’t acknowledge how entangled our current circumstances are with historical injustices and to rectify them may mean the dismantling of our society as we know it. Here Nozick seems, sometimes, to be the contrarian for the contrarian’s sake (concerned with matters of the mind vs. matters of existential reality – like whether or not someone’s just ownership might impede access for others to what Rawls calls primary goods, or how lack of access to these primary goods places at risk the stability of the society (and the market) in which those so advantaged can pursue their so-called natural liberties.
Bruenig, Matt. “Robert Nozick Agrees With Ta-Nehisi Coates” Demos. 2014. (accessed via: http://www.demos.org/blog/5/22/14/robert-nozick-agrees- ta-nehisi-coates)
Locke, John. Two Treatise of Government. Printed for Thomas Tegg; W. Sharpe and Son; G. Offor; G. and J. Robinson; J. Evans and Co.: Also R. Griffin and Co. Glasgow; and J. Gumming, Dublin. 1883.
Nozick, Robert. Anarchy, State, and Utopia. Chapter 7. Basic Books. 2013. (accessed via: https://www.safaribooksonline.com/library/view/anarchy-state- and/9780465063741/Chapter007.html)
Rawls, John. Justice as Fairness, Part I §6 to 11, and part II §13 to 17. 1985.
Stein, Jean. “William Faulkner, The Art of Fiction No. 12” Paris Review. Issue 12. Spring 1955. (accessed via:https://www.theparisreview.org/interviews/4954/william-faulkner-the-art- of-fiction-no-12-william-faulkner)
