Here are the things you need to know from today’s class.
- Entitlement conception of justice
- Wilt Chamberlain argument for libertarianism
Nozick’s entitlement theory of justice is historical. It claims that the way to tell whether a distribution of goods is just or not is by looking at its history.
Specifically, it tells us that there are only three kinds of principles to use in determining whether a distribution of goods is just or unjust.
If the goods were acquired and transferred according to the first two principles, then the resulting distribution is just. If they were not, then we have to ask whether the injustice was rectified according to the third principle. If so, then the resulting distribution is just; if not, then not.
(What do I mean by “principle?” I mean an abstract rule, such as “property transferred through a voluntary gift belongs to the person to whom it is given.” That is an example of a principle of transfer.)
The important thing about the entitlement conception is that it excludes what Nozick calls patterns. We put several patterns on the board. Read each one as “a society is just only if it distributes its resources so that pattern P is met.”
Here is an example. “A society is just only if it distributes its resources so that its members have equal educational opportunities.” Notice that this claim about a pattern ignores history: it does not matter why educational opportunities are unequal, only that they are, in fact, unequal.
That, in Nozick’s opinion, leaves out the only relevant information. What if educational opportunities are unequal because people have different opinions about the value of education? What if people just want to give their own children their best opportunities in life, even if that means giving them a leg up on other people’s children? Would that be society’s fault? It would certainly be society’s fault if some subpopulation were forbidden from attending school or if someone had stolen the money for their schools. This is the only kind of inquiry that Nozick allows: were the historical steps leading to unequal educational opportunity just or not? The inequality itself does not matter.
The tricky thing is that Nozick said almost nothing about how to fill in what those three principles require. It is pretty clear that he is inspired by Locke’s theory of property through labor, but he is highly critical of the details of that theory. We can be pretty sure that he approves of voluntary exchanges and gifts as legitimate ways of transferring property. And he has one highly influential paragraph about rectification. But that’s about all you get.
Nozick leaves these matters open because he thinks he can clear the field of all competitors. He maintains that when other views of distributive justice depart from the historical scheme they necessarily involve unacceptable infringements of liberty and violations of rights. If so, that would eliminate any non-libertarian alternative. Then the only justifiable state would be the libertarian one he described on the first page of the readings. Such a state would do no more than protect people against force, theft, fraud, and non-performance of contracts (Nozick 1974, ix).
If he can pull it off, that would be like alchemy. He would get a big conclusion out of extremely minimal assumptions. Can he do it? His big argument involves a big man: Wilt Chamberlain.
The Wilt Chamberlain argument seeks to show that all the alternatives to the entitlement conception of justice are committed preventing people from paying to watch basketball (Nozick 1974, 160–64). Since that would be an intolerable infringement on liberty, it follows that all the alternatives to the entitlement conception are committed to intolerable infringements on liberty. As Bex said, it looks pretty powerful.
In my opinion, the problem with this argument is that most patterns do not obviously block people from paying to watch a basketball game. A very strict kind of egalitarianism would forbid that, but most other patterns are more accommodating. For example, in a reasonably wealthy society, you could satisfy the pattern “everyone’s basic needs are met: no one is hungry, homeless, or lacking in medical care” and still have enough left over that individuals could decide whether they want to pay to watch a professional basketball game, go to the movies, or whatever.
You could also regulate the labor market to try to ensure that everyone was paid equally: no more paying white men more than everyone else for the same work, for example. That would be a way of reaching a pattern that Sam mentioned. It would definitely interfere with freedom of contract but it wouldn’t obviously prevent anyone from spending their money on things like basketball games.
A lot depends on what rights you think people have. If people have rights to keep all the money they are given or earn, then taxation or regulation violates their rights. But if people have rights to the necessities of life and taxes go to that, then taxation does not violate rights; on the contrary, it is necessary to ensure that rights are respected.
That puts the weight of the argument back on the theory of rights we discussed last time. The Wilt Chamberlain argument doesn’t seem to me to be able to do the work on its own.
Here are the things you need to know from today’s class.
I went on a digression about the history of the idea of rights of necessity in class today. I said I would post some materials about that topic. If you’re interested, here it is. If you’re not, this is extra material that you can ignore.
There was a historical break towards the end of the seventeenth century. When you read even quite conservative figures writing in the beginning of the century, you will see that they take it for granted that the poor have a right to what they need to survive, even if that means taking from the rich.
We saw this in Locke: “As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want” (First Treatise, §42; see our readings for September 22). But it was not a particularly original idea. Rather, Locke was repeating a commonplace that had gone back for centuries. The idea is that people have the right (in the sense of liberty) to do what is necessary to live, even if it means taking someone else’s property. Here are some examples.
“… there are four kinds of “community of goods,” corresponding to four different sources of right. The first kind of community is derived from the right of natural necessity: anything capable of sustaining natural existence, though it be somebody’s private property, may belong to someone who is in the most urgent need of it. This kind of community of goods cannot be renounced. It derives from the right that naturally belongs to man as God’s image and noblest creature, on whose behalf all other things on earth were made.” (St. Bonaventure, “A Defense of the Mendicants” (ca. 1269) in O’Donovan and O’Donovan 1999)
“If … there is so urgent and blatant a necessity that the immediate needs must be met out of whatever is available, as when a person is in imminent danger and he cannot be helped in any other way, then a person may legitimately supply his own needs out of another’s property, whether he does so secretly or flagrantly. And in such a case there is strictly speaking no theft or robbery.” (St. Thomas Aquinas, “On Justice” (1265–74) Summa Theologiae 2a2ae.57-122 in O’Donovan and O’Donovan 1999, 359)
“The Law of necessity is pleadable in any Court, and hath not only its pardon but justification; as when, not only a Magistrate, but a private man pulls down a house or more, which are next to that house which is on fire, to prevent the farther mischief, the Law justifies him, because the necessity and benefit is as visible as the fire; yet it would not be justice in the Soveraign himself, to cause a mans house to be pulled down that is seven miles distant, upon a fore-sight that the fire may come thither. I am not averse from Mr. Hobbes’s opinion, that a man who is upon the point of starving, and is not able to buy meat, may take as much of the meat he first sees, as will serve for that meal; and this not only by the Law of Nature, but for ought I know, without punishment by any Municipal Law, which seldom cancels the unquestionable Law of Nature: but this necessity will not justifie him in the stealing or taking by force an Ox from any man to prevent starving for a month together, how poor soever the man is, or to rob a Poulterers shop, that he may have a second course.” (Hyde 1676, 176)
Towards the end of the seventeenth century, the doctrine of necessity was no longer taken for granted. Instead, you start seeing arguments that property rights should take priority over necessity.
“men’s properties would be under a strange insecurity, being laid open to other men’s necessities, whereof no man can possibly judge, but the party himself. … very bad use hath been made of this concession by some Jesuitical casuists in France, who have thereupon advised apprentices and servants to rob their masters, when they have judged themselves in want of necessities … and by this means let loose … all the ligaments of property and civil society.” (Sir Matthew Hale, Historia Placitorum Coronae …, (published posthumously in 1736), in Thomas 1965, 225–26)
“ordinarily it is a duty, rather to dye, than take another man’s goods against his will [because -mjg] in ordinary cases, the saving of a man’s life will not do so much good as his stealing will do hurt. Because the lives of ordinary persons are of no great concernment to the common good. And the violation of the laws may encourage the poor to turn thieves, to the loss of the estates and lives of others.” (Richard Baxter, Christian Directory (1673) in Thomas 1965, 226)
Nozick clearly stands on our side of the historical divide. People in our culture now tend to believe more strongly in property rights than they do in the right of the poor to take what they need. That is not to say one side is right and the other wrong. It’s just that the natural rights tradition has gone from taking it as obvious that the needs of the poor can supercede property rights to the opposite position. That’s interesting, I think. (And I should say that there are plenty of people now who maintain that the older understanding was correct; they never crossed the divide at all!)