Thomas Patrick Burke
D.Phil.,D.Th.
President, Wynnewood Institute, Professor Emeritus of Religion, Temple University
Freedom and Society: Classical Liberalism in the Twentieth Century
A Course with Professor Thomas Patrick Burke
Spring 2007
The three authors we have examined so far in this course (Mises, Hayek and Friedman) were all economists and their arguments for the free society were based ultimately on considerations related to economics, as we have seen. As a result, all of them were utilitarians. They believed in the free society because they believed it produces the best consequences for people. Robert Nozick (1938-2002), by contrast, was a Harvard philosopher. Philosophers tend to ask questions about meaning and truth, and moral philosophers ask questions about the meaning and truth of ethical ideas and beliefs. In 1974 Nozick published a book that provided a new philosophical foundation for classical liberalism, based not on utility but on considerations of ethics. Specifically, it argued that the free society with free markets was a requirement of justice. In the course of it he offered his own theory of justice, the entitlement theory. This book, Anarchy, State and Utopia, was written as a response to a book by his colleague in Harvard’s philosophy department, John Rawls, which had appeared three years earlier. To understand Nozick’s work, it will help first to study Rawls’s.
John Rawls
Rawls’s book, A Theory of Justice — a massive tome of some 600 pages, written in a dull but workmanlike style — was an epoch-making book. This was for several reasons. One was that it was a major work of moral philosophy at a time when moral philosophy seemed dead. Earlier in the century the logical positivists, such as A. J. Ayer, had proclaimed that all statements of moral principle were meaningless, since the meaning of any statement was given by the method of its proof, and moral principles could not be proven. Only empirical propositions or conceptual propositions could be proven, and moral principles were neither. The only value of a statement of moral principle, therefore, was to express emotion. Those philosophers who did not wish to go so far generally subscribed to the theory of utilitarianism, developed by Jeremy Bentham and John Stuart Mill in the nineteenth century, according to which the basic principle of morality is to maximize the sum total of good. This theory however had some serious problems: for example, it could be used to defend slavery, on the argument that perhaps the sum total of good done to the owner or the society of owners could outweigh the evil suffered by the slave. For utilitarian theory did not necessarily respect the distinction of persons. Rawls’s book, by contrast, attempted to develop a different approach that was neither positivist nor utilitarian, but argued for genuine, absolute moral principles of a kind last seen in the philosophy of Emmanuel Kant in the eighteenth century.
A second reason why Rawls’s book was epoch-making was that he understood justice, not as it was understood in the mainstream philosophical tradition, but as “social justice” or societal fairness. It was the first prominent work of philosophy to do so. He explicitly entitled his approach “a theory of justice as fairness.” Traditionally a strong distinction had been made between justice and fairness. Fairness means equality, even-handedness. Whatever was unjust was also unfair (if you rob or kill someone you are scarcely treating him equally) but what was unfair was not necessarily unjust. (It might be unfair for a father to will all his property to one son, but not unjust since he had a right to do so.) Rawls’s thesis is not that “justice” means the same as “fairness,” but that when we understand justice properly we will see that it is identical to fairness. (“The evening star” does not mean the same as “the morning star,” but in actuality they are identical: the planet Venus.)
Coming in the wake of the civil rights movement and legislation of the 1960s, this gave strong support to the “progressive” agenda. There were other reasons also that quickly gave the book prominence, having to do with the technical methods of philosophy.
Three years later, in 1974, Rawls’s colleague in the philosophy department at Harvard, Robert Nozick, published a response to it: Anarchy, State and Utopia. Nozick’s response was written from the opposite viewpoint of classical liberalism, and even of a somewhat extreme form of that, libertarianism. My purpose today is mainly to discuss Nozick’s book, but to do that properly it is necessary to discuss Rawls first.
For our purposes the gist of Rawls’s theory is contained in his “two principles of justice”:
“First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” (Ch. 11, p. 60)
For Rawls, society can be divided up into two distinct layers or levels, a basic one which provides the foundation and is the same everywhere, and an upper one which contains the particular economic and social arrangements of each particular society. Each level has its own rules. Neither of these two principles are meant to apply to the way individuals treat other individuals. The first principle applies to “the basic structure of society.” The basic liberties mentioned in the first principle are not, as we might perhaps expect, the right not to be harmed, but are rather political rights: “political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) [i.e. not necessarily productive] property; and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.” The sense of “liberty” here seems to be something akin to the Hohfeldian liberty.
Whether a society has a capitalist or socialist economy is a question of the second or upper level. But Rawls states, surprisingly, that it makes no difference to his theory which one a society chooses.
Rawls’s conception of social justice, he says, is not that the government should constantly interfere in the lives of individual citizens in order to create and maintain economic equality, but that the basic political structures of society should be fashioned in accordance with the principles of fairness so that they automatically produce roughly fair or equal results. Having said this, however, he later goes on to argue that the traditional idea of individual responsibility or desert (pre-institutional desert) is a mistake, since we do not deserve any of the natural qualities we are born with that enable us to do whatever we do. His theory has very direct implications for individuals.
Although the entire thesis of the book is the necessity of (structural) equality, Rawls, astonishingly, nowhere provides an argument to support this. Why should equality of any sort be so important? He does not say.
Let us now turn to Nozick. Nozick’s book was quickly recognized as brilliant, even by his opponents. The year following its publication it won the National Book Award. The Times Literary Supplement subsequently named it one of the “100 most influential books since the war.” It was, however, his first and last essay in defense of the free society. Unlike Mises, Hayek and Friedman, Nozick did not make the free society his life-long cause. In his later writings he recanted much of it. Yet later still, not long before his death, he stated that his recantation had been exaggerated.
The question of justice is usually understood not as a question about consequences but about antecedents: what preconditions does a society have to fulfill in order to count as just? The answer Nozick arrives at is that a minimal state, but only a minimal state, can be just. He begins the work with the following sentence:
“Individuals have rights, and there are things no person or group may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do. How much room do individual rights leave for the state?”
The answer he gives to this question is a bold libertarianism.
“Our main conclusions about the state are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified…”
The book has three parts. Part I argues, against an extreme form of libertarianism which rejects government altogether, known as anarcho-capitalism (the viewpoint of Murray Rothbard among others), that government is justified in virtue of individuals’ right of self-protection. Part II argues that a state which attempts to do more than a minimal state is not justifiable. Part III makes an argument that the minimal state, while it is not utopia, is the best move we can make in that direction. The main interest of the book lies in Part II, and especially Chapter 7, entitled “Distributive Justice.” The chapter in turn has two sections, one where he develops his own conception of justice, which he calls the entitlement theory, the second where he criticizes Rawls’s.
Nozick begins by observing that the term “distribution” as applied in the sense of “redistribution” or “distributive justice” conveys a wrong impression, for it seems to imply that there is some central person who has done the distributing, which should now be redone. But this is not the case. “There is no more a distributing or distribution of shares than there is a distributing of mates in a society in which persons choose whom they shall marry.” (Of course, as the term was used by Aristotle, who seems to have coined it, this was the case, because he was thinking of private distributions, such as of profits from a trading voyage among investors, or of government distributing awards.) Instead of this terminology, Nozick therefore prefers to speak of justice in “holdings.” But he continues nonetheless to speak of “distribution.”
History, End Results and Patterns
Two basic actions can be taken regarding holdings: 1) they can be acquired originally, from a condition where they were not held by anyone; 2) they can be transferred to another. Both kinds of action are governed by principles of justice. Nozick summarizes his theory of justice as follows:
“If the world were wholly just, the following inductive definition would exhaustively cover the subject of justice in holdings:
- A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
- A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding.
- No one is entitled to a holding except by (repeated) applications of 1 and 2.”
He classifies his theory as a “historical” one: whether it considers a situation just depends on how the situation came about. Provided it came about in the right way, the result is just, whatever that result might happen to be.
Opposed to this kind of theory are “end-result” theories. These are theories that consider a situation just when it possesses a particular abstract structure. With these theories it makes no difference how the distribution came about, so long as the abstract structural criterion is met. The only question is “who ends up with what.” Nozick also calls these “time-slice principles,” because they are concerned only with the way things are at a particular time. Egalitarianism is an end-result theory, since its criterion is equality. So is utilitarianism, whose criterion is maximization of the good.
In addition to this division of theories or principles into historical and end-result, Nozick distinguishes “patterned” theories or principles, which judge whether a situation is just according to whether some particular pattern is implemented. For socialist or egalitarian theories such as Rawls’s, the pattern required is equality. There are other theories which require different patterns, some of them historical (distribution according to moral merit), some not (distribution according to I.Q.).
Liberty
Nozick argues that all patterned theories are incompatible with liberty, because “liberty breaks patterns.” This is perhaps the main argument of his book. He gives the now famous example of the champion basketball player Wilt Chamberlain. Let us suppose that before Chamberlain begins to play, the distribution of holdings in the society conforms to whatever pattern is desired, whether it be equality or some other pattern, and is therefore just. And let us further suppose that Chamberlain’s expertise is discovered, and people by the thousands or even millions are willing to pay to see him play, voluntarily buying tickets which ensure that a portion of the money paid goes directly to Chamberlain. After a while Chamberlain will be very much richer than many others, and the pattern will be broken. The only way to maintain the pattern would be for the government to intervene constantly in the lives of its citizens to alter the income or assets they possess accordingly. But this is incompatible with liberty. “The socialist society would have to forbid capitalist acts between consenting adults.”
Property
Patterned principles of distribution have paradoxical effects for property. They allow the individual to spend what he has on himself, but not on others, for that could elevate the other above what the pattern requires, while lowering oneself below what it demands. This, Nozick remarks, is individualism with a vengeance. Proponents of patterned distribution focus their attention exclusively on persons as recipients and leave out of account their character as givers. The question is asked, for example, whether people should have the right to inherit property, rather than whether they should have the right to bequeath it.
The proponents of patterned principles have a paradoxical attitude towards the family, for on the one hand they praise its loving relationships and wish them to be extended to everyone around the globe, yet they also denounce it as a symbol of privilege and exploitation.
Taxation
“Taxation of earnings from labor is on a par with forced labor.” (169). In a free society people object to forced labor. The effect of taxation is to compel a person to work longer hours; this is often overlooked because no particular hours are fixed.
“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 non-working 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.” If it is illegitimate to seize some of a man’s leisure by forced labor for the purpose of serving the needy, how can it be legitimate to seize a man’s goods for that purpose? Why should we treat the two differently, those who love leisure and those prepared to work?
Patterned principles of justice effectively confer on each person rights of ownership over other persons. (This is very contrary to the Kantian view.)
Is it permissible for a citizen of a state that operates with a patterned conception of justice to emigrate? If the nation has a compulsory scheme of minimal social provision to aid the neediest, no one may opt out of participating in it. But if emigration is permitted, why not opting out?
Locke and Original Acquisition
John Locke provided the best-known argument for the legitimacy of original acquisition of property. Property can be originally acquired through labor. Each person owns himself, and therefore owns his own labor. Initially all property belongs to the human race in common, but through labor on a particular piece of property (not only land but also chattels, etc.), “by mixing his labor” with it, a person can acquire an exclusive right to possess and use it. “Provided that he leaves as much and as good for others.” (The “Lockean Proviso”)
In a strange move, Nozick, whose aim is to support private property, undercuts Locke’s argument by asking: why does “mixing my labor” with an item result in my owning the item rather than losing my labor? “If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?
(What Locke meant is better seen through the example of creating an item; for example, the person who writes a poem owns the poem, or who paints a picture owns the picture. But Nozick does not discuss this.)
With regard to the Proviso, Nozick is aware that it raises serious problems, but eventually opts for a weakened version of it, according to which the condition of others must not be worsened by the appropriation in certain ways. (Losing an opportunity is all right, but losing the actual use is not.)
In the second section of Chapter 7 Nozick engages in a detailed, acute dissection and criticism of particular aspects of Rawls’s arguments in the light of his own entitlement theory. We will not attempt to summarize this here, however, because he does not pursue a thread, but argues to a large extent indirectly by asking questions.
Comments
All those who subscribe to the philosophy of classical liberalism must feel grateful to Robert Nozick for giving us this book. It raised their spirits immensely, at a time when little else did. There are many telling questions asked and acute observations made in it. His main argument, however, that the redistributive society is incompatible with liberty, has only a very limited force, it must be conceded, for it assumes that the reader views liberty as a desirable, even an indispensable, feature of society. Very many people around the globe do not share that view. Since 9/11 it has become painfully clear that many Muslims do not share it. Even in our own society, while many people wish for liberty for themselves, they are often inclined to take a different and more skeptical view of liberty for others. One may agree that liberty breaks patterns, but still ask: So what? What follows from that? To be effective, an additional argument was needed to establish the desirability of liberty on some solid foundation that could command assent. In the end, he did not even convince himself. Like his other books, it is exploratory rather than definitive and asks more questions than it answers. But this was perhaps what he wanted as his legacy.
Footnotes
Nozick was born in Brooklyn of Jewish parents, his father being an immigrant from Russia; and was educated at Columbia, Oxford and Princeton.