Political Philosophy Allen Jeffrey Gurfel Honor’s Essay I. In Chapter 7 of Anarchy, State, and Utopia Robert Nozick presents the Wilt Chamberlain argument. Imagine your preferred patterned distribution of resources, D1. Now suppose basketball player Wilt Chamberlain, “a great gate attraction”, enters into a contract stipulating that 25¢ of every ticket sold is paid directly to him. By the end of the season Chamberlain has $250,000, much higher than the average income. “Is he entitled to this income? Is the new distribution, D2, unjust? If so, why?” asks Nozick, noting that no person had any claim of distributive justice against Chamberlain in D1, that all persons at D1 were free to dispose of their just shares as they pleaseda, and that their choices to do so by seeing Chamberlain play were voluntary. “If D1 was a just distribution … isn’t D2 also just?” Third parties still have their shares. And certainly those who freely transferred 25¢ to Chamberlain have no claim on any portion of that 25¢. Nozick concludes that “no end-state principle or distributional patterned principle of justice can be continuously realized without continuous interference with people’s lives. Any favored patter would be transformed into one unflavored by the principle, by people choosing to act in various ways; for example, by people exchanging goods and services with other people, or giving things [the transferors are entitled to] to other people … Any distributional pattern … is overturnable by the voluntary actions of individual persons over time.” II. In Chapter 1 of Self-Ownership, Freedom, and Equality G.A. Cohen offers a response to Nozick’s Chamberlain argument, specifically aiming to defend socialism against the challenge it poses. Cohen cites Nozick’s own account of just distributions: Whatever arises from a just situation by just steps is itself just. Importing Nozick’s position that “steps are just if they are free of injustice, and that they are free of injustice if they are fully voluntary on the part of all agents who take them, Cohen paraphrases: Whatever arises from a just situation as a result of fully voluntary transactions on the part of all the transacting agents is itself just. Cohen claims that this principle is “too strong to be accepted without much more defense than [Nozick] provides.” Instead he suggests a more plausible principle: Whatever arises from the just situation as a result of fully voluntary transactions which all transacting agents would still have agreed to if they had known what the results of so transacting were to be is itself just. This qualification is motivated by the observation that individuals enter into transactions for reasons, assessing the benefits to themselves of those transactions and acting accordingly. b Cohen argues that according to this plausible a
There is an assumption here that a person can rightfully divest himself of the share allocated to him by D1. Cohen touches on this in section 4 of this chapter. b This principle is intuitively plausible at least in a case like the following: a seller S is aware both that a buyer B believes B will derive a certain benefit from the transaction and that B is thoroughly mistaken, ignorant of some negative consequence N of the transaction, but S chooses to transact without informing B of N. If, however, S and B are both ignorant of N, then transacting is not intuitively immoral—but it remains to seriously consider whether the transaction is a just.
principle the transactions in question may be unjust. The transactors are not aware that their actions will result not only in undesirable inequalities in the distribution of resources but also in inequalities of power. Nozick would have us believe of third parties that “their shares” are unaffected, but in fact inequalities of wealth and power have third party consequences. Cohen correctly points out that Nozick is begging the question if he simply assumes that any restriction on such transactions are unjust, “for it will be clear that [the transactors’] rights are violated only if the entitlement they received was of the absolute Nozickian sort, and this cannot be assumed. Whatever principles underlie D1 will generate restrictions on the use of what is distributed in accordance with them.” These underlying principles are principles of justice, which Nozick fails to canvas and investigate. Cohen turns to consider liberty. For even if Nozick admits the justice of some given pattern of distribution he may still reply that “however just it may or may not be, it is incompatible with liberty.” Nozick believes that a “socialist society would have to forbid capitalist acts between consenting adults.” But presumably, in a socialist society a law against capitalist acts would be like a present law against eating cheese on Mars—it doesn’t happen anyway. In a socialist society individuals view capitalism as unfair and instead value cooperation, equality, and community. In other words, the socialist subject would freely choose not to engage in capitalist acts. Cohen admits that this assumes a certain view of human nature, but a view Nozick has not argued against. Even so, while a majority of the population may desire socialism and have the subjectivity necessary to make it work, a sizable minority may be highly capitalist-minded. If the minority is large enough their capitalist activity will undermine the socialist project and thus will need to be prohibited. And Cohen concedes that “any but the most utopian socialist must be willing under certain conditions to restrict the liberty of a few for the sake of the liberty of the many.” For Nozick this would constitute a violation of moral side constraints. Nozick does not, according to Cohen, justify his deferral to side constraints, and so the socialist has nothing for which to apologize in “being willing to restrict freedom in order to expand it.”c Finally, Cohen considers the case of Z, a laborer at the bottom of the economic heap forced into a position of choosing between labor and starvation. For Nozick Z is not forced if his position is the result of just actions undertaken by the other market participants A through Y. Cohen correctly points out that this makes absolutely no difference. Z is in an identical position either way and that position is one of severely limited freedom and liberty. Liberty is not merely a matter of nominal, formal rights, of words on a page. Liberty must be accompanied by power, by a real ability to exercise that liberty. III. I have now outlined Nozick’s Wilt Chamberlain argument and Cohen’s responses. In this section I will take those responses and use them as starting points in mounting further challenges to Nozick. c
I will later return to this argument concerning moral side constraints and their justifications.
i. Let us consider the following state of affairs. A state that guarantees absolute property rights—in other words, liberty à la Nozick—extends full civil rights to a class of people who were previously enslaved. These newly free individuals own no property. In order to access essential goods, such as food, water, and shelter, they must sell the only thing they have to sell: labor. Although the market wage for a certain job may be $15 per hour, these individuals can be hired for $1, working 15-hour days, as even this would be preferable to starvation and death. This is the case of Z as outlined by Nozick. Cohen responds, but he does not push the example to its logical extreme. It is certainly open to those hiring to hire individuals of this group at obscenely exploitative wages. Their objective conditions now may even be worse than they were under slavery. But another option is available to those hiring: don’t hire members of this group at all—instead leave them homeless, sick, and starving. In other words, leave them to die. And even worse: leave them to die beside warehouses of unsold, rotting produce. For Nozick this is justice, liberty, and freedom. It does no good to note that, since the oppressed group’s starting position was slavery, some compensation, some reparations are due. For this state of affairs or one very near to it can be brought about at any moment should a group with sufficient economic power choose to do so. What is it called when one group systematically immiserates or exterminates another? Genocide, and we tend not to call it just. It is in fact a paradigmatic case of the most profound injustice. It may seem that these are question-begging assertions about justice and injustice. Consider, however, the suspicion we’d rightfully express toward a proposed moral theory that commanded rape, murder, and theft. Or a moral theory that prescribed a principal whereby the right action is that which brings about the most suffering for the greatest number. Or a moral theory that recommended eating cheese on Mars as the quintessential human good. Nozick is committed to endorsing as just (even if not moral) the state of affairs described above. Such an endorsement follows from his commitment to a certain conception of freedom, or liberty. Just as we can’t (or can we?) rule out the absurd moral theories mentioned above, so we can’t rule out this conception of liberty. But we can and should demand a very good, even flawless, argument. Absent that, we should reject that conception of liberty if we are more certain that the above state of affairs is unjust than we are that Nozick’s arguments for his conception of liberty are solid. ii. Above I suggested that normative theories can rightly be judged by whether their consequences align or conflict with our most basic intuitions. These judgments can be decisive when we are substantially and properly more sure of our intuitions than we are of the arguments grounding a given normative claim. d As Rawls wrote, “Moral philosophy is This isn’t an un-exceptionable, logical rule—I’m well aware that in this world there are those who are completely certain of the most absurd things. I intend properly to suggest, to recommend, an attempt at unbiased reflection regarding one’s moral intuitions. For example, if your moral view finds support across geographies, d
Socratic.” Socrates’ shtick is precisely leading his interlocutors to conclusions they cannot accept. Now I’d like to outline two ways of reasoning when presented with a view on justice and the state. If a given theory justifies an intuitively unjust, morally impermissible state of affairs, that is a point (or more) against it. If there is a nearly identical theory, leading to a nearly identical State, that avoids the need for such an absurd shrugging of the shoulders in the face of obvious and profound cruelty, oppression, and paradigmatic injustice, then that theory should be preferred, especially if the grounds that justify the amended theory are precisely those that were used to justify and argue for the original theory. In other words, one might ground the right to property in principles, arguments, or considerations X, Y, and Z, and from there derive a theory regarding the proper limits of the state. A challenger might take up those principles X, Y, and Z and attempt to show that the original theory fails to fully draw out their conclusions. The challenger draws those conclusions, and from there derives an appropriately revised theory regarding the proper limits of the state. There are several ways to judge between the two final theories. First, whose lines of reasoning from XYZ to rights to a theory of the state are sounder? Second, which theory, if either, is (more) free of internal, seemingly irreconcilable contradictions? Third, which theory allows us to criticize states of affairs like the one I’ve described above as obviously, blatantly unjust — or better yet, prevents such a state of affairs from coming about? Or, which theory is line with our most strongly held, pre-philosophical moral intuitions? I shall exemplify this presently. “Private property alone offers a system in which idleness is not rewarded at the expense of industry, a system in which those who take on the burdens of prudence and productivity can expect to reap some reward for their virtue which distinguishes them from those who did not make any such effort.” This is a long-standing justification of private property. It relies on moral intuitions about just and unjust reward—effort is appropriately rewarded; virtuous and prudential behaviors are thus encouraged for the betterment of one and all. The principles invoked by this justification are now fair game. I might try to show, then, that the very notion of just reward for effort and for undertaking “the burdens of prudence and productivity” is completely empty, meaningless, incoherent, and without force if a class of people are arbitrarily and systematically prevented from undertaking those very burdens. Thus this line of argument for private property must clearly stipulate that individuals not be arbitrarily prevented from undertaking the burdens that yield reward if it is to succeed as a justification. If arbitrary discrimination constitutes precisely such a prevention, then whatever conception of private property permits such discrimination is surely not the conception of private property justified above. For such a conception cannot permit such discrimination lest the principles of its justification completely collapse. times, and cultures then all the more certain you can be. This may be a hopeless approach, but I want to suggest that we can be more certain, for example, that random killing is wrong than we can be that homosexual relationships or wearing short sleeves are wrong. It certainly is the case that more people come around to see those latter two as morally permissible than to the opinion that murder is morally permissible.
The state that protects the right of private property consistent with the justification offered above is the state that prohibits the sort of arbitrary discrimination that falls outside of this conception of private property. Thus the prohibition does not constitute a limit on private property as justified above and is, rather, completely in line with that conception of private property. The additional bonuses are 1) that the state is acting legitimately when it enacts laws that prevent a state of de facto slavery from coming about and 2) that the theory has exactly the principles and resources necessary to articulate what is fundamentally unjust about that state of affairs which we perceive to be blatantly unjust by the use of our most basic moral intuition. That is the first approach. The second approach consists in mounting a direct challenge against the foundational principles of the view presented. In the case of the example above this would mean undermining the justification for property offered. iii. In this subsection I challenge Nozick’s foundational principle. “Individuals have rights, and there are things no person or group may do to them (without violating their rights).” So opens Anarchy, State, and Utopia. These natural rights are negative, specifying what must not be done to an individual and not what must be done for him, and they exist pre-politically. “Part of the message of that opening proclamation is that there are certain things that may not be done to individuals even if, by some standard, they are socially optimizing. The rights that individuals have are moral bulwarks against behavior that promotes even the most radiant—or apparently radiant—social end.”
a. Nozick grounds his notion of liberty in self-possession, which I take to be equivalent to self-ownership. e Whatever concept of liberty or freedom follows from this, it must be admitted that our liberty is not coextensive with our power. After all, I have the power to kill but not the liberty to do so. There is, then, a gap between the scope of our power and the scope of our liberty. What accounts for this limit on our power? For Nozick, our exercise of our power is limited by others’ equal self-ownership. But this is meaningless unless selfownership is given some sort of positive content. Call the set of actions within my power to take A and the set of actions within my liberty to take L. There are countless distinct ratios of A to L compatible with mutual limitations on individuals abiding by L—e.g. you don’t appropriate my property by force, I won’t appropriate your property by force; or, you won’t discriminate in your market transactions, I won’t discriminate in my market transactions; or, you can kill me in the night, I can kill you in the night. Here is the point: the assertion of self-possession amounts to nothing but the claim that I exercise power over my body, but absolutely nothing follows—no normative claim follows—from the fact that I exercise power over my body. Whatever limitations L sets, these limitations are identical to an enumeration of rights and obligations. Rights and obligations must be justified, but an appeal to the fact that I control my body doesn’t do the trick. Most specifically, importantly, and relevantly, it does not follow from the fact that I exercise control over my body that I have a claim to anything at all in the world beyond my body, let alone a claim to an unlimited amount of such things checked only by my ability to acquire them. To restate the point: “self-possession” is just shorthand for some enumeration of rights and obligations. It provides no justification for any ration of A to L, even if it is capable of stating what the content of L is. b. The reasoning above is a little fast and loose. Let us look closer at a specific argument from Nozick. Whether we understand the principle of self-possession as the claim that we own ourselves or as the claim that individuals are not ownable, one thing is clear: slavery violates the principle. If it is slavery when one master compels my actions, it is equally slavery when two masters, by agreement, compel my actions. This doesn’t change even when ten thousand masters compel my actions, my labor, under threat of force. This It should be noted that it does not follow from the fact that we exercise power over our own bodies that we “own” ourselves in the common sense of “own.” Certainly, however, no one else can own us. But if no one else owns us, who does? The answer may be “no one, an individual is not in the class of things that can be owned at all.” e
doesn’t change when those ten thousand masters decide commands by popular, democratic vote. A conception of justice cannot be deduced from self-evident premises. Its justification is a matter of the mutual support of many considerations, of everything fitting together into on coherent view.
