Rights as Side Constraints

Class notes for 25 October

Main points

Nozick’s book is a tour de force of rhetorical questions and occasionally mind-stunning examples.

Today, I wanted to put those aside and concentrate solely on the main elements of his view. These are:

  1. Rights as side constraints, as contrasted with rights as goals.
  2. The move from form (rights are side constraints) to content (libertarianism).
  3. The entitlement theory of justice and how the theory of rights is used to argue for it.

We will go over the way that the parts fit together next time, when we look at Scheffler’s criticism of Nozick.

Wilt Chamberlain

One argument for the entitlement theory of justice is based on liberty, This argument maintains that any “patterned” principle of justice would require objectionable limits on liberty. The Wilt Chamberlain example is supposed to show that the limits on liberty would be objectionable.

In talking it over with Dasha, I think I came up with a better way of describing this point. Imagine a libertarian arguing with someone who believes that the state is responsible for social welfare. (I’m sure you’ve seen an argument like this in the dorms). The libertarian says that taxation for welfare programs amounts to an objectionable infringement on liberty; the person supporting welfare programs denies this. They’re in a deadlock.

Now, imagine Nozick coming along and saying “I can settle this dispute. With my Wilt Chamberlain example, I can prove that the libertarian is correct. I’ll do that by showing that that the alternatives to libertarianism would prevent an obviously acceptable exchange between Wilt Chamberlain and his fans. Even the non-libertarian will have to agree that the limits on liberty would be intolerable.”

And I think that Nozick is right when the example is deployed against the view that the only just distribution of wealth is one in which everyone has equal amounts of money. The example shows that this is a stupid rule of distributive justice: what’s the point of having money if you can’t spend it?

But against a different patterned principle of justice, I don’t think it proves much. Suppose our welfare supporter thinks that the “pattern” that has to be matched looks like this: a just society is one in which everyone has enough food to eat (or enough education to function in a literate society, or adequate health care, or you name it). Now, suppose the pattern is met: everyone has enough to eat. Must the society forbid professional basketball in order to maintain the pattern? No. It just has to tax people enough to continue the food program. Whatever you have left over after taxes, you are free to spend paying Wilt.

Now, the imposition of taxes does involve limiting liberty. You can’t spend the money in your possession as you wish. But the mere fact that the state limits liberty does not show that there is something objectionable about the state. That’s because everyone in the argument agrees that liberty has to be limited. Every claim right limits liberty because obligations limit liberty. Since Nozick’s version of libertarianism relies on rights, it limits liberty.

Therefore, those who believe in rights have to show more than that their opponents would limit liberty, they have to show that their opponents would objectionably limit liberty.

Of course, a libertarian may well say that the welfare program in question would require objectionable infringements on liberty. I certainly don’t think I have proven that this is wrong (nor do I know how to prove that). My only point is that the Wilt Chamberlain example hasn’t moved things very far from where they stood before we imagined Nozick showing up. The battle of the dorm is still going on in just the same terms as before. The example appeared to prove that the libertarian is correct; but it does so only when the libertarian’s opponent has a very strange version of egalitarianism. If that isn’t what the opponent thinks, we’re back to where we started.


Nozick didn’t rest everything on the Wilt Chamberlain argument. There’s still his conception of rights as side constraints. Here, the argument is that patterned principles of justice require violations of rights because they coerce people for the sake of others.

Next time, we will consider an argument that rights may have the form of side constraints while having non-libertarian content. If that argument works, the argument from rights fails. It would not show that anyone who accepts that rights have the form of side constraints must accept that rights have libertarian content. Without that conclusion, it might be OK to coerce one person for the benefit of another: we wouldn’t be able to move from the premise that rights are side constraints to the conclusion that coercion is always wrong.

More on historical injustice

If you would like to pursue the question of rectifying historical injustice in greater depth, here are three articles that I have read and found very interesting, in the order that I remember anything definite about them, plus a fourth that looks good (I have not done much work in this area). For locals, Richard Epstein, a professor in the UC law school, will occasionally give talks on this topic that, I am told, are very provocative and interesting.

  1. Waldron, Jeremy. “Superseding Historic Injustice.” Ethics 103, no. 1 (1992): 4-28. [JSTOR]
  2. Simmons, A. John. “Historical Rights and Fair Shares.” Law and Philosophy 14 (1995): 149-84. (I’m pretty sure this is reprinted in this book: Simmons, A. John. Justification and Legitimacy: Essays on Rights and Obligations. Cambridge; New York: Cambridge University Press, 2001.)

    Abstract: My aim of this paper is to clarify, and in a certain very limited way to defend, historical theories of property rights (and their associated theories of social or distributive justice). It is important, I think, to better understand historical rights for several reasons: first, because of the extent to which historical theories capture commonsense, unphilosophical views about property and justice; then, because historical theories have fallen out of philosophical fashion, and are consequently not much scrutinized anymore; and finally, because of (what I see as) the continuing need to better understand the historical components of our society’s responsibilities to the descendants of victims of systematic injustice in our own past. The case I will have in mind throughout is that of the property claims of Native American tribes, claims based on their historical standing as the original owners of certain lands and resources. And while I will concentrate here only on the question of rectifying past violations of property rights, this will constitute at least a start to answering more general questions about just rectification, which includes the more serious and less compensable wrongs of violence against persons.

  3. David Lyons has a chapter in this book (I think) that is on this topic as well: Paul, Jeffrey, Reading Nozick : Essays on Anarchy, State, and Utopia (Totowa, N.J.: Rowman & Littlefield, 1981).
  4. Sher, George. “Ancient Wrongs and Modern Rights” in Approximate Justice : Studies in Non-Ideal Theory. Lanham: Rowman & Littlefield Publishers, 1997.