PROFESSOR: 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' 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 and
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 the notion of justice, whereas at
the core of Nozick's picture lies the 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' 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' 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' 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 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. 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 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 result of an unjust acquisition, it produces
an unjust holding. If something is owned as
a 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 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. 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 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 acceptable
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. 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 that
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 a 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 distribution 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 six discussion of justice in holdings and to
think about that in the context of some work in
social psychology.
