Chapter 7: Distributive Justice
By Robert Nozick
In this chapter of Anarchy, State, and Utopia, Nozick looks at a theory of distributive justice based on ‘entitlement,’ which requires justice in acquisition, justice in transfer, and justice in rectification. Its basic premise is: from each as they choose, to each as they are chosen. This theory fits the basic structure of a free market society – something similar to Rawl’s natural liberty – and is based on efficiency rather than the difference principle. Nozick compares his theory to Rawls, arguing that Rawls’ difference theory is asymmetric – favoring the worse-off more than the better-off. He also argues that Rawls does not give adequate justification of the idea that the distribution natural assets is morally arbitrary.
Nozick argues that the minimal state is the most extensive state that can be justified; any more extensive state violates people’s rights. In this chapter he considers the claim that a more extensive state is justified, because it is necessary (or the best instrument) to achieve distributive justice. He begins by pointing out that “distributive justice” is not a neutral term; it sounds like someone uses a principle to give out a supply of things, when in reality there is no central distribution in which one person has all resources and doles them out – what each person gets, he gets from others in exchange for something. Instead, he uses the terminology, talking about people’s ‘holdings.’
The Entitlement Theory
The subject of justice in holding has three major topics. 1) The principle of justice in acquisition, which deals with the original acquisition of things – how unheld things come to be held. 2) The principle of justice in transfer, which deals with the transfer of holdings from one person to another – how a person can acquire a holding from another who holds it. 3) The principle of rectification, which deals with the rectification of injustice in holdings – what ought to be done to rectify injustice.
In a world that was perfectly just, only the first two principles would be needed, and the following definition would fully cover the subject of justice in holdings:
1. A person who acquires a holding in accordance with the principles of justice in acquisition is entitled to that holding.
2. 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
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.
A principle of distributive justice based on entitlement would argue that a distribution is just if everyone is entitled to the holdings they possess under the distribution. This method is “justice-preserving” since repeated transitions that are in accordance with the principle are also just. However, in reality, not all situations follow the first two principles, since people steal, defraud, etc. others. This is what leads to the principle of rectification.
These principles lay out the theory of justice in holdings: The holdings of a person are just if he is entitled to them by the principles of justice in acquisition and transfer, or by the principle of rectification of injustice (as specified by the first two principles). If each person’s holding are just, then the total set (distribution) of holdings is just.
Historical Principles and End-Result Principles
Historical principles assume that whether a distribution is just depends on how it came about. The entitlement theory of justice is an example. End-result principles assume that the justice of a distribution is determined by how things are distributed (who has what) as judged by some structural principle(s) of just distribution (utilitarianism, welfare economics).
A principle of justice is patterned if it specifies that a distribution is to vary along with some natural dimension, weighted sum of natural dimensions, or lexicographic ordering of natural dimensions. An example of a patterned historical principle is a principle of distribution according to merit. A non-historical patterned principle would be something like distribution according to I.Q. The principle of entitlement is not patterned. Its distribution is based on work, gifts, gambling, loans, and other types of transfers. Though it is unpatterned, it is not incomprehensible, since it arises from a small number of principles. It seems possible that people would not tolerate a completely unpatterned system of distribution; if people’s reasons for transferring some of their holdings to others was always irrational or arbitrary, we would find this disturbing. People want society to be and look just.
Hayek suggests that in a free society there will be a distribution in accordance with a perceived value of a person’s actions and services to others. “To each according to how much he benefits others who have the resources for benefiting those who benefit them.” This type of pattern will result in a distribution that is arbitrary unless an acceptable set of initial holdings is specified, or unless operation of system over time washes out any significant effects from the initial set of holdings.
Many believe that a theory of distributive justice must have the form: “to each according to his X,” though this presupposes that there must be a pattern. Also by separately defining “from each according to his X,” this formulation separates production and distribution. In the entitlement view, these are not two separate questions. In this form, the entitlement theory is: From each according to what he chooses to do, to each according to what he makes for himself (perhaps with the contracted aid of others) and what others choose to do for him and choose to give him of what they’ve been given previously (under this maxim) and haven’t yet expended or transferred. Or more concisely: from each as they choose, to each as they are chosen.
How Liberty Upsets Patterns
Assume there is a just distribution, D1, which is currently the distribution in society. But now, a famous basketball player decides to charge an extra 25 cents for admission to games he plays in. People choose to pay the 25 cents, and the basketball player ends up with an extra $250,000 income. The resulting distribution is now D2. Since each person chooses to give their money to the basketball player voluntarily, it seems strange that D2 would be considered unjust.
This type of example shows that any favored pattern would be transformed into an unfavored one by the principle by people choosing to act in various ways (exchanging goods and services with others, giving things to people). To stop this, a government would need to either interfere to stop people from transferring resources, or continually interfere to re-distribute goods and return to the favored pattern. (But why let people trade if you’ll immediately re-distribute anyway?)
It seems unlikely that all individuals will voluntarily refrain from actions that would upset the pattern, since they may not all want to maintain the pattern or they may not be able to gain enough information about how their own actions might affect the pattern. This shows that most patterned (end-state) principles will be unstable, unless the pattern is very weak. It is then plausible to conjecture that any patterning is either unstable or it is satisfied by the entitlement system.
Assume individuals’ rights are interpreted as the right to choose which of two alternatives is to be ranked more highly in a social ordering of the alternatives. And, if one alternative is unanimously preferred to another, then it is ranked higher by the social ordering. However, even with only two individuals deciding across two pairs of alternatives, then for some rankings there is no linear social ordering and no transitive social ordering. A better way to conceive of individual rights is to assume that each individual’s exercise of rights fixes some features of the world, so that the highest ranked alternative is the one which is not excluded by anyone else’s rights.
Redistribution and Property Rights
The taxation of earnings from labor is on par with forced labor. Taking the earnings of n hours of labor is like taking n hours from the person; forcing the person to work n hours for another’s purpose. Since paying taxes is enforced, it cannot be argued that paying taxes is a choice. Even taxes on goods are unfair. If we consider it illegitimate to take some of a person’s leisure time (through forced labor), how is it legitimate for a tax system to seize some of a man’s goods? Why should the man who prefers seeing a movie in his free time be required to aid the needy (by paying taxes on his movie ticket) while the man that prefers watching a sunset does not?
End-result principles of distributive justice are built into the legal structure of society and give each citizen an enforceable claim to some portion of the total social product. This is the equivalent of giving people partial ownership of other people and their actions and labor. This type of set up seems to violate some of the moral side constraints regarding liberty.
Locke’s Theory of Acquisition
Locke views property rights in an unowned object as originating through someone’s mixing his labor with the object. However, it isn’t clear what constitutes the boundaries of what is owned. If an astronaut cultivates a small area on Mars, does he then own the whole planet? Does building a fence only make you owner of the land immediately beneath it? Why does mixing labor with other things make it yours, rather than make you lose ownership? For example, if I pour my apple juice into the ocean, I don’t own the ocean, I’ve just lost ownership of my juice.
Locke argued that appropriation is ok because there is ‘enough and good’ remaining for others. This leads us to believe that the crucial point is whether the appropriation of an unowned object worsens the situation of others. If we believe that ‘making someone worse off’ means making it so that he no longer has the opportunity to improve his situation through appropriation, then, through backward induction, this could quickly lead to no one being able to own property. Consider, if Y appropriates land and leaves nothing left for Z, then Y made Z worse off, so Y can’t take property. But this means that X’s taking property made Y worse off (since he can’t take property), so X can’t take property either. This process could continue all the way back so no one can own property.
However, it is also possible to argue that making someone worse off simply means that the person loses the ability to use freely (without appropriation) what he previously would; this is a weaker requirement. Even if there is not enough left for Z to appropriate, there may be enough for him to use. It is true that with less remaining that people are at liberty to use, others might face more inconvenience, crowding, etc. but it doesn’t remove the ability to use some of the item, only removes his ability to actually appropriate the item. (The idea here is that I can appropriate (own) some water, but there still needs to be enough water left so that other people can access it.)
Any adequate theory of justice in acquisition will contain a proviso similar to the weaker of the ones we attributed to Locke: “A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened.” Using this proviso in the principle of acquisition requires a more complex principle of transfer: if appropriating all of a certain substance (e.g. all the water in the world) violates the Lockean proviso, then so does my appropriating some and buying all the rest from others. However, just owning the total supply of something necessary for others to stay alive does not entail that the appropriation left some people in a situation worse than the baseline (i.e. the Lockean proviso is not an end-state principle). For example, a researcher that develops a disease treatment but refuses to sell it except on his terms does not worsen the situation of others compared to the baseline. Without him, they would not have the drug, and they still have access to the materials needed to create the drug themselves.
Nozick argues that now political philosophers must either work within Rawls’ theory or explain why not. He uses a comparison to Rawls theory as a way to better describe his own.
Rawls says that society is a cooperative venture for mutual advantage, but that people have both unity and conflict of interests. Social cooperation makes possible a better life for all, but people are not indifferent as to how the extra benefits are distributed. However, Rawls does not explain whether he is considering the distribution of the total or the incremental benefit from social cooperation. The total benefit from cooperating might be T, but the incremental benefit is only T-S (where S is the sum of individual benefits when there is no cooperative society).
Another issue with Rawl’s idea of social cooperation is that it is possible that justice may exist outside social cooperation. If people are living along on separate islands, but then discover each other, they may make claims on each other based on need, for example. Also, if someone steals from someone else, in a noncooperative situation, it might still be considered unjust. Entitlement theory would argue that there is a concept of justice whether or not there is a cooperative society.
It could be argued that the benefits of social cooperation are impossible to attribute to any one person, but this is unlikely since social cooperation is based on a division of labor, specialization, and exchange. Producers and consumers are concerned with marginal product and do not just arbitrarily transfer their holdings. Even Rawls would have to acknowledge that we have some understanding of the impact of individuals’ actions, since his system aims to pay incentives specifically to individuals whose actions will help the worst-off in society.
Terms of Cooperation and the Difference Principle
Rawls imagines rational, mutually disinterested individuals in the original position. These people develop the ‘difference principle’ – a system in which the institutional structure is designed so that the worst-off group under it is at least as well off as the worst-off group would be under any alternative institutional structure. It is symmetric in the sense that everyone (the better and the worse off) benefit from social cooperation. However, it is asymmetric because the better-endowed group includes those who accomplish something of great economic advantage to others (new inventions, etc.), while the less-endowed do not contribute as much. In this way, the less endowed gain more than the better endowed do from a scheme of general cooperation, compared to a situation of non-cooperation. (Ti-Si for a well-endowed individual is smaller than for a less well-endowed individual.) It seems suspicious to impose constraints on the voluntary social cooperation so that those already benefiting most from the general cooperation benefit even more.
Nozick argues that Rawls imagines the worse-endowed persons saying, “Look, better-endowed: you gain by cooperating with us. If you want our cooperation, you’ll have to accept reasonable terms. We suggest these terms: We’ll cooperate with you only if we get as much as possible. That is, if it was tried to give us more, we’d end up with less.” But Nozick asks, why can’t the better-endowed make the same proposal to the worse-endowed?
The Original Position and End-Result Principles
There is a difference between distributing a pie that just appears, and distributing a pie that can be made bigger by the efforts of some individuals. If things fell like manna from heaven, no one would be especially entitled to any portion of it, and everyone would have to agree to a particular distribution. But it isn’t clear that this applies in the real world. Rawls, by setting up a procedure that founds principles of distributive justice on what rational persons who know nothing about themselves or their histories would agree to guarantees that end-state principles of justice will be taken as fundamental. It would be impossible for them to consider historical principles – everything is treated as manna from heaven.
Macro and Micro
Rawls insists his principles are to be applied only to the macro structure of society and not to micro situations – so micro counter-examples can’t be used. However, his idea of reflective equilibrium, for most people, requires that principles are tried out in hypothetical situations, and micro situations are easier to comprehend.
Also, the structure of Rawls theory is a dilemma. If processes are great, Rawl’s theory is defective because it can’t give process principles of justice. If processes are not great, then there is insufficient support for the principles yielded by the process Rawls uses. Basically, if processes are good enough to found a theory upon, they are good enough to be the possible result of the theory
An organic principle of distribution is one that meets the deletion condition. This means that an unjust distribution, as defined by the principle, can be gotten from one the principle deems just, by deleting some people and their distributive shares. The difference principle is organic, because if the least-well-off group is deleted, the structure may not benefit the new least-well off group. In general, patterned principles “to each according to his X” are not organic principles.
The addition condition states that if two distributions (over a disjoint sets of individuals) are just, then so is the distribution which consists of the combination of these two just distributions. Principles of the form “to each according to his X” violate this condition – they are nonaggregative (since the appropriate share depends on how much exists in society.). The entitlement principle of justice in holdings satisfies both the deletion and addition conditions.
Thomas Scanlon argued that “there is no plausible principle which is distinct from the Difference Principle and intermediate between it and strict equality.” Nozick believes this is wrong. We can consider a cost benefit trade-off where inequality is thought of as a cost. An egalitarian gives inequality infinite cost, so result is full equality. The Difference principle gives inequality a very small cost, so any benefit to the worst-off justifies the existence of more inequality, however great. We could imagine Egalitarian Difference Principle I, which would be a principle in which an inequality is justified only if its benefits outweigh its costs. Egalitarian Difference Principle II could be more strict and argue that inequality is justified if its benefits outweigh its costs and if there is no other unequal system that would have less inequality but more benefit.
Natural Assets and Arbitrariness
Rawls argues that natural talents and abilities are arbitrary from a moral point of view. This means that everything noteworthy about a person comes from external factors. Due to this, Rawls designs the original position so that shares cannot be affected by natural assets, and he rejects the idea of natural liberty (equal opportunity and efficiency) because it is biased by these arbitrary factors.
The Positive Argument
The positive argument attempts to establish that the distributive effects of natural differences ought to be mollified. This is an argument Rawls could give to support his statement about natural talents being arbitrary.
Possible Argument A:
1. Any person should morally deserve the holdings he has; it shouldn’t be that persons have holdings they don’t deserve
2. People do not morally deserve their natural assets
3. If a person’s X partially determines his Y, and his X is underserved, then so is his Y
4. People’s holdings shouldn’t be partially determined by their natural assets
This argument doesn’t work, because Rawls emphatically rejects distribution according to moral desert, so he would reject the first premise in argument A.
Possible Argument B:
1. Holdings ought to be distributed according to some pattern that is not arbitrary from a moral point of view.
2. That persons have different natural assets is arbitrary from a moral point of view
3. Holdings ought not to be distributed according to natural assets
This doesn’t work either, because even though the principle of the system is not distribution in accordance with natural assets, differences in natural assets will still lead to difference in holdings, which may be excluded by premise 3.
Possible Argument C:
1. Holdings ought to be distributed according to some pattern that is not arbitrary from a moral point of view.
2. That persons have different natural assets is arbitrary from a moral point of view
3. If part of the explanation of why a pattern contains differences in holdings is that other differences in persons give rise to these differences in holdings, and if these other differences are arbitrary from a moral point of view, then the pattern also is arbitrary from a moral point of view.
4. Differences in natural assets should not give rise to differences in holdings among persons.
This doesn’t work either, because premise three holds that any moral arbitrariness that underlies the pattern infects the patter and makes it, too, arbitrary. The difference principle gives some persons larger distributive shares than others, and which persons receive these shares depends at least partially on differences among persons that are arbitrary from a moral point of view.
Possible Argument D:
1. Holdings ought to be equal, unless there is a (weighty) moral reason why they ought to be unequal.
2. People do not deserve the ways in which they differ from other persons in natural assets; there is no moral reason why people ought to differ in natural assets
3. If there is no moral reason why people differ in certain traits, then their actually differing in these traits does not provide, and cannot give rise to, a moral reason why they should differ in other traits (for example in holdings)
4. People’s differing in natural assets is not a reason why holdings ought to be unequal
5. People’s holdings ought to be equal unless there is some other moral reason (such as, for example, raising the position of those worst off) why their holdings ought to be unequal
But why do we believe the first premise: that people’s holdings ought to be equal? Since D assumes equality as a norm, it cannot be used to establish any conclusions about equality. The average person doesn’t have to explain why he chose one movie theater over another, it’s ok to make some arbitrary choices.
The Negative Argument
The negative argument is the use of the claim that people don’t deserve their natural assets to rebut a possible counterargument to Rawls’ view.
Possible Counterargument E:
1. People deserve their natural assets
2. If people deserve X, they deserve any Y that flows from X.
3. People’s holdings flow from their natural assets.
4. People deserve their holdings
5. If people deserve something, they ought to have it (and this overrides any presumption of equality there may be about that thing.)
Rawls would rebut this by denying it’s premise.
Possible Counterargument F:
1. If people have X, and their having X (whether or not they deserve to have it) does not violate anyone else’s (Lockean) right or entitlement to X, and Y flows from (arises out of, and so on) X by a process that does not itself violate anyone’s (Lockean) rights or entitlements, then the person is entitled to Y.
2. People’s having the natural assets they do does not violate anyone else’s (Lockean) entitlements or rights.
This argues that some of the things you have may not need to have foundations underlying desert that are themselves deserved all the way down.
Possible Counterargument G:
1. People are entitled to their natural assets
2. If people deserve X, they are entitled to any Y that flows from X.
3. People’s holdings flow from their natural assets.
4. People are entitled to their holdings
5. If people are entitled to something, they ought to have it (and this overrides any presumption of equality there may be about that thing.)
This argues that whether or not people’s natural assets are arbitrary from a moral point of view, they are entitled to them, and to what flows from them. This makes sense, because if nothing of moral significance could flow from what was arbitrary, then no particular person’s existence could be of moral significance, since which of many sperm fertilizes an egg is arbitrary from a moral point of view.
Since no argument has established that differences in holding arising from differences in natural assets should be eliminated or minimized, we may think about changing the original position. Perhaps participants in the original position should know of their own natural endowments.
If saying that a fact is arbitrary from a moral point of view simply means that the fact’s being that way is of no moral significance and has no moral consequences, then rationality and the ability to make choices are not morally arbitrary. In this sense, natural assets would not be morally arbitrary, either.
Rawls argues that everyone has some entitlement or claim on the totality of natural assets (viewed as a pool), and that the natural abilities of individuals in society are viewed as a ‘collective asset.’ This might lead some to believe that Rawls does not take seriously the distinction between persons. However, it is tue that people’s assets are an asset to a free community, because others benefit from their being there as opposed to elsewhere or nowhere. Life is not a constant-sum game, where greater ability leads some to win and others to lose. We shouldn’t be aiming to eliminate or “deal with” natural assets, even if they aren’t used to benefit others.