Robert Nozick and Distributive Justice

Robert Nozick’s concept of justice rests on a limited role for the state in all areas of human life. It is how justice is defined that determines whether or not Nozick’s favoured pattern guarantees justice. If justice is defined as the servant of legitimacy, as proprietarians such as Nozick claim then “from each as they choose, to each as they are chosen” is perfectly justifiable, provided that transactions between consenting adults fall within the mandates of the law. But for utilitarians, such as Bentham and Mill, justice is not defined by legitimacy of actions but the welfare of the populace. Similarly for Rawls and other contractarians – justice is perceived to be an egalitarian concept. This essay will scrutinise Nozick’s arguments, and those of philosophical opponents, before arriving at a conclusion.

At its core Nozick’s theory rests on Locke’s ‘state of nature’ – ensuing anarchy – that leads humans to a transcendental desire for some form of authority . Limited governance arises from a combination of human self-interest, and the consensual legitimacy that such institutions are granted by the populace. Criticism of Nozick can include this Lockean theme, is it right that government should pay homage to such vagaries as ‘natural rights’? Is any system that evolves out of anarchy and then seeks limited philosophical advancement too rigid and inadaptable to changing societal values to guarantee justice? If the concept of legitimacy becomes contested, then can such a state even guarantee coherent justice?

However the strength of the Nozickian argument is the conservative assumption of pre-existing, humanitarian conceptions of morality. This, combined with rational self-interest provides not just the tools for human advancement, but morality, and henceforth legitimacy – that guarantees societal justice. The lack of any favoured societal groups, and the initial absence of hierarchy in the immediate aftermath of anarchy means that legitimacy – or legality – of ownership of property, tools and money is conferred. The subsequent human trade that ensues throughout history – Nozick’s “historical principle of justice” – provided it remains with the boundaries of institutional law is legitimate, and just, no matter what the distribution of end results. Nozick’s argument is all the more effective by his reliance on core human characteristics; man as a rational self-interested being, endowed with a strong sense of morality. These humanitarian certainties present for millennia – as Hobbes and other realists would testify to – provide a degree of vindication for Nozick’s thought, ensuring justice based on legitimacy of action and significantly, justice based on equality of opportunity.

The problem for Nozick and other advocates of proprietarian justice is that of regimes upholding an allocation that stems from unjust or unrectified history. Nozick might approve of US constitutional procedure but his emphasis on historical rather than structural indices should logically force him to withhold approval from that society, as the holdings of Native Americans have obviously been violated by European colonisation . Similarly, are we to judge holdings that stem from aristocracy as unjust? Nozick comments that;

(Rectification) “Will make use of its best estimate of subjunctive information about what would have occurred…if the injustice had not taken place. 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 realised” .

The problem with this is its obvious ambiguity. Nozick’s talk of “estimates” and “what would have occurred” do not provide a reliable device for compensation. In the absence of such a device there is an palpable opportunity for not just the continuation of injustice based on illegitimacy of acquisitions – an injustice an Nozick’s own terms – but the opportunity for injustice of state action taken to rectify such illegitimacy – again, a violation of Nozick’s central tenant of individualism. Just as Hayek dismisses claims for distribution based on “moral merit” as vague and unworkable given the vagaries of individual circumstance, so we must in part dismiss Nozick’s rectification claim by the same standards.
Where his arguments based on essential elements of human nature bolster the logic of his philosophy, being of intrinsic value to free and democratic societies and providing a philosophical framework that is dictated by human nature, rather, than as socialists seek to do, dictate what it should be, this laissez-faire approach is at its weakest when confronted by injustice in historical holdings. This weakness thus upsets Nozick’s pattern of justice based on legitimacy.

One of the strongest arguments for Nozick’s conception of justice is its relation to democracy. Where proprietarians, utilitarians, and contractarians all differ on what constitutes justice within a given society, they will all readily accept democracy as the prerequisite of what their particular ideal is based upon. But this is not necessarily the case. With all processes of thought that favour an equitable distribution, and “current time-slice principles” there is a substantial tension between democracy and socialistic aims. As F.A. Hayek describes, a desire for equality necessitates control over production and distribution, and thus engenders a substantial loss of personal freedom;

“Economic control is not merely control of human life which can be separated form the rest; it is the control of the means for all our ends” .

More bluntly put by the English philosopher Hilaire Belloc;

“The control of the production of wealth is the control of human life itself” .

The strength of Nozick’s theory of justice is its compatibility with true democracy. As he points out in ‘Distributive Justice’, the lack of any central distribution, no person or group entitled to control all the resources and deciding how they are doled out is the hallmark of a genuinely free society . The egalitarian nature of the justice favoured by Rawls, for example is paradoxical in that the equality it aspires to is purely theoretical, but the methods for distribution are as materialistic as the most mercenary capitalist, with the state controlling the resources, who the favoured societal groups are and what proportion of the nations wealth people should receive. As Hayek again points out;

“The power that a multi-millionaire, who may be my neighbour and perhaps my employer, has over me is very much less than that which the smallest fonctionaire possesses who wields the coercive power of the state” .

By contrast Nozick’s laissez-faire conception of justice is in one sense an appeal to materialism that perversely safe guards the theoretical maxim of freedom better than any ideology that bases the theory of equality as its rasion de’etre. Even Marx noted this compelling link between capitalism and democracy, noting that the evolution of private property – with free markets – had been the precondition for the evolution of all democratic freedoms . Given that its is Nozick’s proprietarianism, above all other theories of justice, that regards justice as the servant of free and legitimate trade – something he demonstrates by use of the fictitious basketball player Wilt Chamberlain -we can infer that Nozick’s philosophy is the one true servant of democracy, and the freedom of the individual that is part of our western, liberal conception of justice.

This freedom does however throw up interesting theoretical quandaries. Nozick uses Lockean “natural rights” as the cornerstone of his beliefs, implying transcendental, empirical values that presumably a “just” Nozickian society would incorporate into law. But does this not clash with the stated aim of the minimal state to be; “extremely liberal in civil life”? How do we institutionalise and protect “natural rights”? Are they even recognizable? These questions are not – within the confines of this essay – easily answerable.

It is obvious that anything more than the minimal state to a die-hard proprietarian transgresses people’s rights – and therefore justice. But what if, as a result of democracy, voters demanded more than the minimal state? Would Nozick – like J. S. Mill and the tension between his utilitarian beliefs and his sacrosanct belief in individual liberty – have to disregard one in favour of the other? The suspicion must be, similar to Mill, that he would disregard democratic voices in favour of such socialist idealism, even if they formed a majority. This does not mean democracy would be disregarded – democracy being after all, the ultimate safeguard of individual liberty and legitimacy of transactions Nozick holds dear – but it highlights the volatile nature of the electorate, rendering Nozick’s conception of justice “to each as they choose…” vulnerable to democratic whims, one of which could be to insist on a link between natural rights and welfare.

In conclusion it is perfectly possible to reconcile a Nozickian conception of legitimacy with justice, but it is to a large degree dependent on an individuals conception of justice. A true proprietarian in the mould of Nozick needs to be able to stomach considerable social inequality in his model society – just as a socialist needs to realise the obvious loss of freedom his utopia would result in. Ultimately, a judgement is needed on which choice constitutes a freer, more just society. Egalitarian concepts may narrow inequality, but it is at the price not just of the freedom of consenting adults to engage in the trade of their choice, but of arguable the progress and dynamism of society at large. Inequality was narrower in the old Soviet Union than in the USA, but few would argue that the former constituted a beacon of a just, dynamic society. Equality, when it becomes the end in itself, endangers not only the justice of historical transactions, but also the fabric of democracy itself.
It is possible, to an extent within Nozick’s system for inequality to be tolerable by virtue of the ‘Pareto Optimalist’ – someone who views inequality of holdings as justifiable provided everyone benefits materially . Ironically, this is the view that John Rawls espouses in his justification of justice as fairness. It again demonstrates the flexibility of Nozick’s beliefs and their role, not just as a function of political theory, but as justly tied to our shared human values and aspirations.


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