Robert Nozick

Property, Justice and the Minimal State

Jonathan Wolff

• Publisher: Polity
• Year: 2013
• Print ISBN: 9780745606033, 9780745606026
• eBook ISBN: 9780745680453
• Edition: 1
• Topic: Psychology
• Subtopic: Developmental Psychology
• Index: Psychology

Robert Nozick's Anarchy, State and Utopia is one of the works which dominates contemporary debate in political philosophy. Drawing on traditional assumptions associated with individualism and libertarianism, Nozick mounts a powerful argument for a minimal `nightwatchman' state and challenges the views of many contemporary philosophers, most notably John Rawls.

Jonathan Wolff's new book is the first full-length study of Nozick's work and of the debates to which it has given rise. He situates Nozick's work in the context of current debates and examines the traditions which have influenced his thought. He then critically reconstructs the key arguments of Anarchy, State and Utopia, focusing on Nozick's Doctrine of Rights, his Derivation of the Minimal State, and his Entitlement Theory of Justice. The book concludes by assessing Nozick's place in contemporary political philosophy.

1

Nozick’s Libertarianism

Between Anarchy and the State

‘If the individual has the right to govern himself, all external government is tyranny’.¹ The case against the state has rarely been put so trenchantly as by Benjamin Tucker, the nineteenth-century American anarchist. So seriously does Nozick take arguments of this type that much of Anarchy, State, and Utopia is an attempt to show that, despite the plausibility of the anarchist’s case, a state can exist without violating rights.

Nozick, like Tucker, conceives of political philosophy as starting from the premiss that: ‘Individuals have rights, and there are things no person or group may do to them (without violating their rights)’ (ix). But, unlike Tucker, Nozick argues that anarchism is not the inevitable consequence. His project is to defend the different conclusion that ‘a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified’, but ‘any more extensive state will violate persons’ rights not to be forced to do certain things’ (ix).

Few actual states resemble Nozick’s ideal. Some ‘welfare states’, for example, have programmes for the alleviation of poverty, financed by taxation of the better off. This, Nozick argues, goes beyond the proper, narrow functions of the minimal state, for in redistributing property the state is not protecting, but violating, the rights of individuals. The welfare state forces people to pay their taxes on pain of punishment, and thereby, in Nozick’s view, interferes with the rights of those taxed to do as they choose with their own property. The minimal state, on the other hand, has no function but to safeguard property rights.

We can see that in defending the minimal state Nozick has set himself against two quite different types of opponent: the anarchist and the defender of the extensive state. Anarchists attack Nozick’s ‘statism’, and the ‘statists’ his (near) anarchism. Part of the purpose of this book is to investigate how far Nozick’s attempt to secure this midway point – the minimal state – succeeds against attacks from both sides.

Nozick realizes that his project may be unpopular. ‘Many persons will reject our conclusions instantly, knowing they don’t want to believe anything so apparently callous towards the needs and suffering of others’ (ix). But Nozick is undaunted, arguing vigorously in defence of what has become known as his ‘libertarianism’. Key elements of this defence are Nozick’s account of individual rights and his theory of justice, from which he is able to build up a vision of the minimal state. Towards the end of this chapter we shall investigate what life would be like in a libertarian society; would it be as callous as Nozick’s critics suppose? First we should take a preliminary look at Nozick’s view of rights and justice.

The Thesis of Self-Ownership

We all lead separate lives. We have separate existences. Nozick takes these truisms very seriously and from them he draws a moral conclusion. It is wrong, he argues, to sacrifice one person for the sake of another. One person must not be used as a resource for another. Of course, if I want to sacrifice myself then that, perhaps, is to be applauded, but we must not, says Nozick, force someone to suffer some sort of loss or disadvantage just so another may gain. To do so is to ignore the ‘separateness of persons’.² This is one way of presenting the thesis of self-ownership: the view that only you have the right to decide what is to happen to your life, your liberty and your body, for they belong to no one but you. This thesis looks very plausible and sceptics can often be silenced by reflecting on examples such as that of the ‘eye lottery’. Suppose that transplant technology reaches such a pitch of perfection that it becomes possible to transplant eyeballs with a one hundred per cent chance of success. Anyone’s eyes may be transplanted into anyone else, without complications. As some people are born with defective eyes, or with no eyes at all, should we redistribute eyes? That is, should we take one eye from some people with two healthy eyes, and give eyes to the blind? Of course, some people may volunteer their eyes for transplant. But what if there were not enough volunteers? Should we have a national lottery, and force the losers to donate an eye?³ To many this seems monstrous. It would be a better world, of course, if everyone could see, but does this justify holding the eyeball lottery and redistributing eyes?

According to the thesis of self-ownership each of us is the rightful owner of our own body. If we make redistribution of eyes compulsory then we ignore this right, or, as Nozick would say, we violate it, sacrificing one person for the sake of another, and this must not be allowed to happen. Many people, on reflection, would accept that our body rights are absolute in this sense, and would happily draw similar conclusions for the right to life: no one may take my life just to save another, unless I consent. And self-ownership also has consequences for liberty: what I do is my business, and I can do whatever I like, provided I respect the rights of others.

It is important to realize the role played here by consent. Nozick’s key idea is that except for purposes of punishment or self-defence the only things others may do to me are those to which I agree. Things which are done to me without my consent are illegitimate, and they violate my rights. Each individual is ‘surrounded’ by a ‘protected sphere’ of rights,⁴ with which no one may interfere. Nozick maintains that it is by recognizing an individual’s rights to non-interference – the right to be left alone – that we respect the separateness of persons.

Nozick is not the first to formulate such a view of rights, and it is sometimes said that the idea of self-ownership stands at the heart of all liberalism.⁵ Arguably, it can be found in various forms in Locke, Kant, and Mill. Nozick is distinctive in the emphasis he puts upon rights of self-ownership. As we shall see in the next chapter, they are absolute and override all considerations of need, desert, or happiness. Individual rights, for Nozick, fill the whole political landscape.⁶

The Entitlement Theory of Justice

This view of individual rights to life and liberty accords well with the anarchist intuition that each person has the right of self-government, but some of those initially attracted to Nozick’s book by its title, in the hope that they will find a defence of anarchism, may be puzzled by what they read. The anarchism of writers such as Bakunin, Kropotkin, and Proudhon is a romantic, radical theory, which promises a sort of communism without the state. Two features of Nozick’s view show that this is not what he will be arguing for: first, that he allows a minimal state, and second the emphasis he places upon private property rights.

It was Proudhon who declared ‘Property is theft’. Nozick clearly does not share this opinion, claiming that along with rights to life and to liberty, people can come to have rights to property. These rights too will fall within an individual’s ‘protected sphere’, and where you have a justified right to property, according to Nozick, your right to this property is just as comprehensive and inviolable as your right to your eyes. No one may interfere with your property without your consent, even for the sake of a greater good.

But when do people have rights to property? On what basis, if any, is ownership of private property morally justified? Some people think that property should be distributed on the basis of need, while others believe that it should be allocated only to those who deserve it. Nozick has a different idea. Considerations of entitlement, not desert nor need, should be decisive. But what is entitlement? Suppose someone who is already extremely rich is quite unexpectedly left a further fortune. Certainly we would say that he does not need this extra money, and it may also be that he has done nothing to deserve or merit it. Yet we are inclined to say it is still rightfully his, he is entitled to it, even if he does not need it or deserve it. It is this idea of entitlement upon which Nozick fastens. In effect, he argues that what should be decisive in the question of the justice of a person’s property holdings are not features of that person – their needs or merit – but facts about how they obtained the property; did they acquire it in a way that entitles them to it?

There are two basic processes, according to Nozick, by which people may come to be entitled to property. Property may either be justly acquired from those who already justly hold it, or, in certain circumstances, it can be ‘appropriated’ from nature, if it is unowned. Thus Nozick supplies principles of ‘justice in transfer’ and ‘justice in acquisition’ to tell us which methods or procedures must be followed if possession is to be construed as legitimate ownership, rather than, say, theft. A third principle of ‘justice in rectification’, to remedy any past injustices, completes Nozick’s ‘entitlement theory of justice’. This theory provides the background to the claim that individuals have absolute private property rights that are just as strong as their body rights.

The Minimal State

According to Nozick, then, we each have absolute rights to life and liberty, and are also able to form absolute rights to property. But the mere fact that we have rights does not guarantee that they are always going to be respected. How can we protect ourselves against those prepared to violate our rights? In present societies we have institutions to protect ourselves. We may call the police, or take those who violate our rights to court. But in an anarchist society, clearly, these courses of action are not available. If there is no state, then, it seems, there are no police or judicial systems. Some idealistic anarchists believe that the state is the root of all evil, and so without the state no one would wish to interfere with the rights of others. Not surprisingly, Nozick does not rely on this view.

Instead Nozick endorses the minimal state, or what has sometimes been called the ‘nightwatchman state’. The state is justified, thinks Nozick, only in so far as it protects people against force, fraud, and theft, and enforces contracts. Thus it exists to safeguard rights and this is its sole justification. The state violates rights if it undertakes any more extensive programmes.

It is hard to understand what is so special or unusual about this conception of the just state until we contrast it with the type of government to which we are more accustomed. A modern government has many areas of activity to which it apportions its taxation-funded budget. Thus we find departments of defence, education, health, police, transport, welfare, and so on. We are used to seeing these activities simply as different branches of government. Yet from the libertarian point of view, there are fundamental distinctions to be drawn.

First, there are those branches of government concerned with defending citizens against acts of aggression: the department of defence protects citizens from the actions of foreign invaders, while the police and law courts protect citizens from each other. Second, some sectors of government set out to provide public services of various sorts – roads, fire services, libraries – with the intention of improving the quality of life for everyone. Third, there are areas of government activity to take care of citizens who for some reason – ill health, poverty, unemployment – are unable to take care of themselves. Finally the government may also undertake to supervise individual lives to some extent. In most countries there is some form of censorship (notably censorship of films); in many, certain drugs are prohibited; and in almost all there is some compulsory education. These are areas in which the government forces people to do, or not to do, things apparently for their own good.

Note that only the first of these four sectors concerns the defence of people’s rights to non-interference. The second sector goes beyond this, in that it seeks to supply goods and services from which everyone will benefit; the third supplies goods and services from which only part of society will benefit, generally at the expense of those who will not; and the fourth supplies or prohibits goods to all, whether or not they agree.

The minimal state may raise taxes only to cover the first of these sectors – to defend rights to person and property. Nozick argues that the minimal state ‘may not use its coercive apparatus for the purpose of getting some citizens to aid others or in order to prohibit activities to people for their own good or protection’ (ix), so he rules as illegitimate both the third and fourth sectors. We should add on Nozick’s behalf, a prohibition of the second sector. The government may not force people to contribute to projects that further their own well-being. Thus we have a bar on compulsory redistribution, and also on all forms of paternalism. Compulsory redistribution is ruled out by Nozick’s entitlement theory of justice, which says that transfers are morally justified only if they are entirely voluntary, while paternalism violates an individual’s right to the liberty to determine the course of his or her own life. The most startling consequence of Nozick’s claims is that the state has no business helping those in poverty: people do not have rights to welfare assistance.

A Framework for Utopia?

It is not easy to imagine what life would be like were government activity pared down in this way. Will we see the poor starve for lack of rights to food? Would houses burn down for want of a fire service? And would there be no roads, no drains, and no electricity supply? Nozick, in fact, claims that the minimal state is ‘inspiring as well as right’ (ix). Whether the minimal state is right is the question pursued throughout this book, but we might now ask, in the light of these questions, why should anyone think that the minimal state is inspiring?

First of all, it is vital to appreciate that although Nozick argues that we may not force the rich to part with their surplus wealth, he certainly does not recommend that they ignore the plight of the poor. He does not seek to discourage private philanthropy. A libertarian may even go so far as to say that it is immoral for the rich to let the poor starve if they are in a position to do anything about it: the rich ought to engage in private redistribution schemes. But it is essential to make the distinction between the morally right and what it is right to enforce by law. It may be wrong not to give to charity, but, for a libertarian, this is no reason to force someone to contribute. Property rights trump duties of benevolence.

The distinction between the morally right and the rightfully enforceable is one we commonly make in other cases. It may be absolutely wrong and morally unforgivable for me to cross the road rather than go to the aid of a fellow citizen lying prostrate on the pavement ahead, but we might be unhappy with the thought that it should be illegal for me to make this immoral choice. Libertarians point out that taxation for redistributive purposes in effect does make it illegal not to contribute to alleviating the plight of the badly off. But it is quite consistent to believe that morally one should aid the poor and the sick, and yet that one should not be forced to do this. And voluntary contributions, in principle, can do more than help the needy. Just as one might provide food for the starving, one might donate resources for a library or museum, and even, perhaps, a road system. That is, charity may fund public goods as well as welfare programmes.

But if all aid were voluntary, how much would be forthcoming? Would the minimal state stimulate or dampen philanthropy? This is, of course, a speculative question, but there are those who argue that current philanthropic activity is much curtailed by the welfare state and the taxation required to sustain it. Abolish the welfare state, reduce tax burdens, and the springs of philanthropy will once more flow. Once more, because, as Milton and Rose Friedman point out, the great age of philanthropy preceded the age of the extensive government: privately financed schools and colleges, foreign missionary activity, non-profit private hospitals, and orphanages, the Salvation Army and the YMCA all date from the nineteenth century.⁷ In response it could be urged that the modern pressure for the welfare state was a consequence of the ineffectiveness of nineteenth-century philanthropy. But in any case whether such activity would resume in a new minimal state has, of course, to remain a matter of conjecture.

However, philanthropy is not the only approach to misfortune and the provision of public goods in the minimal state. The free market has some of its own well-known solutions. Those worried about falling sick, or becoming unemployed, may take out insurance to reduce their vulnerability. It is important not to underestimate the potential of the insurance market to protect individuals from whatever contingencies they choose to insure against. But it is just as important not to overestimate this potential. Some are born poor, or sick, and so are not an acceptable risk to an insurance company. It may be hard to renew cover for those suffering from incurable or lengthy ailments. And for those in financial difficulties insurance payments are often the first ‘non-essential’ expenditure to be sacrificed. None the less, the possibility of insurance reduces one’s reliance on the benevolence of others, and would provide a safety net for many in the minimal state, although not for all.

Equally, certain public goods could be provided by individuals or voluntary associations seeking to profit from non-members. Perhaps no one would set up a fountain in the market-place for the free use of all, but the private supply of water, for example, is often economically feasible through piped or bottled provision. A great many goods could be supplied privately for commercial reasons. Other goods, however, might be more difficult to deal with in this way. Some goods are public by nature, in that there is no practical way of preventing those who do not pay their share from enjoying the benefit. Street lighting is one commonly cited example. Goods of this sort may be in short supply in the minimal state.

So far, we have some reasons for thinking that the minimal state would not be as bleak as it first appeared, in that it might well be able to provide a more or less effective substitute for some of the functions of a more extensive state. But clearly little we have seen so far entitles us to the judgement that the minimal state is inspiring. So why does Nozick claim this? The answer is that he believes it provides a ‘framework for utopia’.

Utopian fantasies are attractive to many, and some of our most imaginative thinkers have spent a great deal of energy designing model societies in which, in their opinion, human life could be lived to the fullest extent.⁸ Nozick points ...

Table of contents

• Cover page
• Title page
• Copyright
• Contents
• Preface
• Acknowledgements
• Note on References
• Introduction
• 1. Nozick’s Libertarianism
• 2. Libertarian Rights
• 3. Defending the Minimal State
• 4. The Entitlement Theory of Justice
• 5. Nozick and Political Philosophy
• Notes
• Guide to Further Reading
• Bibliography
• Index
• Back Page