by Phil Parvin
Fact-check
1 What, according to Rawls, is wrong with utilitarianism?
A Not everyone wants to be happy
B Utilitarianism doesn’t tell us what to do
C Utilitarianism leads to unjust outcomes
D Utilitarianism is old-fashioned
2 What is a deontological theory?
A A theory that prioritizes the right over the good
B A theory that prioritizes the good over the right
C A theory that identifies the right with the good
D A theory about teeth
3 Which of the following are concealed behind the veil of ignorance?
A Your attitude to risk
B Whether you are self-interested
C Whether you are rational
D Your status, talents and conception of the good
4 What is being decided in the original position?
A Whether to form a society
B Whether the state is justified
C Whether one has a duty to obey the law
D What justice requires
5 According to Rawls, which is the most important principle of justice?
A The equal basic liberty principle
B The equal opportunity principle
C The sameness principle
D The difference principle
6 Why don’t talented people deserve to be paid more, according to Rawls?
A Because talented people are often lazy
B Because talented people don’t help society
C Because talents are morally arbitrary
D Because wealth is morally bad
7 Why does Rawls rule out some conceptions of the good?
A Because some conceptions of the good are mistaken
B Because some conceptions of the good are unjust
C Because some conceptions of the good do not promote utility
D Because some conceptions of the good are only held by minorities
8 What are the fundamental principles at the heart of Rawls’s theory?
A Freedom and equality
B Equality and utility
C Freedom and wealth
D Desert and freedom
9 Why might it be acceptable to pay doctors more than gardeners, according to Rawls?
A Because being a doctor is more difficult than being a gardener
B Because being a doctor is more useful than being a gardener
C Because ill people deserve good doctors
D Because the worst-off are harmed if there are not enough doctors
10 Which of the following does Rawls say is most important?
A Being able to frame, revise and pursue your conception of the good
B Being able to maximize your own position
C Being able to do whatever you want
D Being able to have whatever you want
11
Libertarianism
Libertarianism is a fundamental critique of egalitarianism in general, and of Rawls’s theory of justice in particular. It has been defended by a number of political philosophers including Robert Nozick (1974) and David Gauthier (1986), and arguably represents the ideological core of political movements such as, among others, the Republican Party and the Tea Party movement in the USA. Broadly speaking, libertarians defend free markets and minimal states against the redistributive tendencies of egalitarian liberal theory. Indeed, the pre-eminent libertarian philosopher Robert Nozick wrote his Anarchy, State, and Utopia as a direct rebuttal of the liberal egalitarian redistributive state defended by Rawls. The book was published in 1974, three years after Rawls’s A Theory of Justice, and set in motion a fierce debate between libertarians and egalitarians about the nature of freedom and justice which dominated political philosophy in the 1970s and early 1980s, and continues to this day.
In the rest of this chapter, we discuss libertarianism through the prism of its most significant advocate: Robert Nozick.
The limits on state action
For Rawls, remember, justice requires extensive redistribution according to the difference principle. According to Nozick, the Rawlsian state or any state which intervenes in free markets in order to redistribute wealth from the rich to the poor is unjust. This is because redistribution violates individual rights by forcing people to do things, and to give up their property, in ways that they do not choose. Nozick and other libertarians thus emphasize the limits that individual rights place on state action. The general claim of libertarianism is these limits are extensive: there is very little that a state may legitimately do.
Nozick’s entitlement theory of justice
According to Nozick, justice is a matter of entitlement. The way to judge whether a particular distribution of resources is just is to consider whether people are entitled to the holdings they have. The way to do this is to consider how people came to acquire those holdings. Justice thus becomes a matter of finding out the history of a certain distribution. Nozick expresses this idea by saying that his entitlement theory is historical, not end-state.
An end-state theory of distributive justice is one in which the justice of a distribution is determined by looking at what people have at any particular point in time. Theories like Rawls’s that call for the redistribution of wealth tend to be end-state theories: they consider the existing distribution, notice that some have more than others, and conclude that this is unfair and should be rectified.
In contrast, a historical theory of distributive justice is one in which justice is determined by considering how people came by their holdings. Nozick argues that end-state theories are problematic for two main reasons. Firstly, they are incompatible with liberty. Secondly, they fail to take account of the fact that goods are not ‘manna from heaven’. They are made by people, and come into the world with ownership already attached. We will expand these claims later in the chapter.
There are three central elements of Nozick’s entitlement theory of justice:
1 the initial acquisition of resources (that is, how people originally came by their holdings)
2 the transfer of resources (that is, the ways in which holdings might appropriately pass from one person to another)
3 the rectification of injustice (that is, what needs to happen if either (1) or (2) are seen to have been unjust).
The fundamental principle of Nozick’s theory is: if each individual’s holdings are just, then the overall distribution of holdings is just.
INITIAL ACQUISITION OF RESOURCES
The first question for a historical theory of justice is how it is that we can come to own anything in the first place. How can an individual or a company come to own natural resources, such as land or raw materials? Nozick’s theory of how natural resources can be justly owned is a version of the theory of acquisition put forward by John Locke. Nozick assumes that initially, natural resources are unowned. People may appropriate these natural resources on a first-come, first-served basis, with one proviso: other people must not be made worse off. Nozick has a particular meaning in mind when he says that the position of others must not be worsened: someone is made worse off if they are no longer able freely to use something that they previously could use. The mere fact that someone else now owns that thing is not enough to make others worse off, on Nozick’s account. This implies that there must always be some amount of unowned resource left, or that owners of a resource must allow some free use.
Nozick argues that people can often be made better-off if someone else appropriates a natural resource. Imagine that there is an unowned lake that people would like to use for fishing and swimming. However, the lake is polluted, so swimming is unpleasant and the fish are unhealthy. Because no one owns it, no one does anything about the pollution. Then Jack appropriates the lake. He charges people £5 per day to visit the lake, and uses £4 out of every £5 to clear up the pollution. The lake is much more pleasant to use, and people are very willing to pay the £5 – in fact, they feel that they are better off than they were be
fore the lake was appropriated. So they would rather pay £5 to visit Jack’s lake than visit a nearby unowned (and thus still polluted) lake for free.
According to Nozick, people also justly own the products that they create from their justly acquired natural resources. So, if Jack justly acquires the dirty lake, and then devotes his time and further resources to producing a clean lake, he is entitled to the clean lake that he has produced. Once the raw materials have been justly acquired, a person can transform them into products which she subsequently owns.
TRANSFER OF RESOURCES
Once people have justly acquired resources, they do not have to keep them. Resources may be transferred between people and, Nozick argues, as long as the transfers are just, the resulting distribution is just. The key aspect to a just transfer, for Nozick, is that it must be voluntary. So just transfers include gifts, inheritance, buying and selling, and payment for services and labour. There are no external, objective limits or definitions for what constitutes a just transfer. As long as the parties agree to it, it is just. So, if I agree to sell you my brand-new Rolls-Royce for £100, that is just. There is no force in the argument, for Nozick, that £100 is an unfair price and so the transaction was unjust. Crucially, for Nozick market transactions are just transactions.
RECTIFICATION OF INJUSTICE
Nozick accepts that the current distribution of resources in actually existing societies is not just, because it is not the result of just acquisitions and just transfers. He therefore proposes a principle of rectification: where there have been unjust transfers, there can and should be compensating transfers to rectify the injustice.
Nozick accepts that rectification will be exceedingly complex. He therefore concedes that it might be better to start with some other distribution, perhaps an equal distribution of resources. However, once we have reached a fair starting-point, we can let the principle of just transfers work freely. After a time there could, and probably would, be vast inequalities between people. It is these inequalities that liberal theories of distributive justice such as Rawls’s are designed to mitigate. Nozick’s argument is that there is no need rectify inequalities, no matter how vast, as long as they have come about through just transfers of justly held resources.
Redistributive taxation
We have seen, then, that Nozick argues that justice is a historical concept, determined by the question of whether people are entitled to their holdings. Their entitlement is determined by whether they acquired their holdings by one of the three just methods of acquisition: initial appropriation, just transfers, or rectification of injustice.
Of course, once just transfers get underway, inequalities will develop. While liberals advocate redistributive taxation in order to rectify certain inequalities, Nozick is firmly against such taxation. Indeed, Nozick argues that redistributive taxation is, normatively, equivalent to slavery. Since slavery is wrong, redistributive taxation must be wrong.
Spotlight: Tax Freedom Day
‘Tax Freedom Day’ is a term that is similar to Nozick’s claim that taxation is like slavery. It refers to the first day that the average citizen can work ‘for herself’ after working to pay off her year-long tax bill. In the USA the day is calculated by the Tax Foundation think tank, who said that it fell on 9 April in 2010. That same year, the Adam Smith Institute calculated the UK Tax Freedom Day as occurring on 30 May.
Why does Nozick think redistributive taxation is like slavery? Redistributive taxation involves coercing the person who is taxed: forcing them to pay a certain amount of money to the state. If they refuse to pay they can be imprisoned. Now, for the most part, people get money by working for others – they are employed. This exchange of labour for money is just, for Nozick, because workers agree to it, and they agree to work precisely because they are paid. But if a worker has to pay tax so as to support redistribution, the worker is being forced to work unpaid. The worker will have to work extra unpaid hours in order to pay the tax.
Imagine a tax rate of 10 per cent. If Emma is paid £100 for 10 hours work she will be charged tax of £10. What this means is that Emma is forced to work unpaid for the tenth hour, because she has to give that hour’s wages to the tax collector. This unpaid hour is, Nozick argues, like slavery: it is forced, unpaid work. And just as slavery is wrong and unjust, so redistributive taxation is wrong and unjust.
‘The man who chooses to work longer to gain an income more than sufficient for his basic needs prefers some extra goods or services to the leisure and activities he could perform during the possible nonworking hours; whereas the man who chooses not to work the extra time prefers the leisure activities to the extra goods or services he could acquire by working more. Given this, if it would be illegitimate for a tax system to seize some of a man’s leisure (forced labour) for the purpose of serving the needy, how can it be legitimate for a tax system to seize some of a man’s goods for that purpose?’
Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 170.
Nozick acknowledges that without some taxation, there would be no society or state. So a just state would require people to pay enough (but only enough) tax to maintain things like defence, law and order, and perhaps also public goods like street lighting and road maintenance. But why isn’t this form of taxation like slavery, if redistributive taxation is?
Because of the idea, embodied in the social contract, that it would be irrational not to form and maintain a state. Given this, basic taxation aimed at maintaining the minimal state (and no more) is understood as willingly, or voluntarily, given. It would be irrational not to give up a proportion of your holdings to support those institutions which protect your individual rights. This is not true of redistribution.
The very nature of redistributive taxation is that it takes money from the rich and gives it to the poor. Nozick argues that this unfairly discriminates between people who value leisure and people who value wealth. He writes:
if it would be illegitimate for a tax system to seize some of a man’s leisure (forced labor) for the purpose of serving the needy, how can it be legitimate for a tax system to seize some of a man’s goods for that purpose? Why should we treat the man whose happiness requires certain material goods or services differently from the man whose preferences and desires make such goods unnecessary for his happiness? (Nozick 1974: p 170)
Redistributive taxation discriminates unfairly, whereas taxation for the minimal state is (or should be) paid for by all, and so is fair.
Redistributive taxation violates the Kantian (and liberal) maxim that no individual may be used as the means to achieve the well-being of another, while taxation aimed at supporting the minimal state provides goods that the people being taxed will themselves use or benefit from. People are ends in themselves; they are rights-bearing moral and political subjects: they should not be used as tools which can be used to ensure happiness or wellbeing for others. Progressive taxation violates this idea by assuming that rich people (and their holdings) can be used to improve the lives of other people.
Nozick is therefore committed to the idea that there should be no redistributive taxation. It follows that the needy will not be helped by the state. Nozick accepts this. However, he argues that the needy should still be helped, but by acts of voluntary charity, rather than by state coercion. He is willing to accept that the normative, moral obligation to perform acts of charity would be high in his society. He is merely against state coercion.
The principle of self-ownership
There are various objections to Nozick’s argument that progressive taxation is like slavery. For example, we might start by asking: Why is slavery wrong? What is it about slavery that makes it wrong, and is redistributive taxation like slavery in the relevant sense? Is it sufficiently like slavery to make it fundamentally wrong and unjust? Nozick’s answer, and his theory as a whole, is tied closely to the concept of self-ownership.
Self-ownership is the idea that each person has full property rights over hersel
f: her body, her talents, her labour. Full property rights entail the right to sell oneself. So, for Nozick, it is justifiable to sell one’s labour, even one’s most intimate labour. So Nozick has no justice-based objection to prostitution, or surrogacy, or organ sales, or selling oneself into slavery.
Self-ownership provides the basis for many elements of Nozick’s argument, and his critique of liberalism. It undermines the idea, crucial to the difference principle, that people’s talents are morally arbitrary, so that people don’t deserve the fruits of their talents. On the contrary, for Nozick people own their talents. It follows that people own the fruits of their labour and talents. As we have seen, Nozick argues that a person owns anything that she makes out of raw materials that she has justly acquired. If a person owns the materials, and owns herself and thus her labour, she owns the product of her labour. It is thus illegitimate to take products from people.
There are numerous problems with this view, but let us for now focus on two, provided by G.A. Cohen and Susan Moller Okin.
Case study: The eye lottery
A strong argument in favour of self-ownership and against egalitarian redistribution is Nozick’s thought-example of the eye lottery. Nozick points out that if, contrary to his own views, we don’t own our natural endowments, and if redistribution is required, there appears to be nothing to stop us from being forced to redistribute our natural endowments to others. For example, egalitarianism might require an eye lottery, whereby people lucky enough to be born with two good eyes could be forced to donate one of them to people who have none.
Nozick proposes that most will find the idea of the eye lottery (and the underlying idea that we should be coercively forced to redistribute our body parts to people who have need of them) horrendous. However, he says, the only way to prevent such a scenario is to adopt his theory of self-ownership. According to his theory, after all, we own our natural endowments, and we cannot legitimately be forced to donate our endowments to others even so as to bring about equality. Nozick believes that egalitarians face a choice. They must either accept that we do not own our bodies and that therefore we can be required to redistribute parts of them in the same way that we are required to redistribute social resources. Or, they can accept the idea of self-ownership and, hence, abandon the idea of redistribution.