“It is long past time that we abandon the transcendent appeal to rights as ways to settle more arguments, in part because—following Derek Parfit—it is far more constructive to ask why and which rights matter.”
One of the first things to point out is that the argument for vast disparities in property, as Rawls points out, can very quickly assume a strangely illiberal character. This is, in part, because the basic moral outlook of liberalism—defined by thinkers from the authors of the Declaration of the Independence through Kant and Will Kymlicka—is that all individuals are moral equals. While imperfectly applied in practice, this outlook has grown exponentially more powerful as history has proceeded, and we have gradually expanded the circle of concern to previous ostracized groups. Given that liberalism holds that we must treat all individuals as moral equals, it, in fact, leads us to the conclusion that (contra Locke and others) deviations from material quality actually prove quite problematic. They cannot be naturalized through appeals to lobster hierarchies and distinctions of rank or worth—as many defenders of inequality seem to contend. It is departures from equality, not departures from inequality, which require justification from a moral (if not natural) point of view. At least if one is a liberal who takes the matter seriously. And I think this applies even more for positions, such as my own, which accept this liberal orientation but contend that it needs to be taken more seriously than classical liberalism has accepted. Given this, it must be asked whether property rights can be justified as a departure from equality. I think the answer is yes—but not nearly to the extent many classical liberals presumed. There are two main defenses of such departures from equality given: Lockean-style moral arguments about entitlement to value and consequentialist claims about the negative implications of engaging in dramatic redistributive efforts.
Nozick’s argument is a brilliant reinterpretation of the Lockean-Kantian tradition of property rights, which confirms him as one of the most interesting political philosophers of the 20th century (taken too soon). Nevertheless, I think his argument is fundamentally flawed in very deep ways.
Robert Nozick and the Minimal State
Lockean-style contentions about such departures have been justified along the lines of the labor theory of value and entitlement. These justifications were often tied to meritocratic claims about the persons who created the value deserving it. However, these arguments were dealt a devastating blow by arguments from Marx through to Rawls, which pointed to severe flaws in such reasoning. First, as Marx never tired of pointing out, if the contention of Lockean defenders of property rights is that those who committed the labor should get the reward, then our society would look dramatically different. Since it is the workers who almost always do most of the actual work (and the bosses contribute relatively little), then it follows that there should be a massive redistribution of wealth from capital to labor. Some have tried to rebut this by appealing not to the volume or time of labor committed—which itself deviates very pronouncedly from the Lockean paradigm—but instead to the qualitative contribution made. But this is highly problematic since, as Rawls points out, our capacity to make qualitatively meaningful contributions is very much determined by morally arbitrary factors in life, for which we can take little personal credit. Even the superior character that will lead some to become doctors and others with equal abilities to become janitors may, very well, flow from fortunate circumstances, which neither individual was responsible for.
The most convincing rebuttal to this position comes from Robert Nozick in his great work Anarchy, State and Utopia. The book famously opens with the unargued assertion that people have rights that cannot be violated. The most important of these is the Lockean/Kantian right to liberty, which Nozick interprets as being systematically protected from interference by any and all others. These rights exist prior to the state and, therefore, cannot be abnegated, even for socially useful purposes. After describing how a minimal state could, nevertheless, legitimately form in such conditions and developing a very interesting critique of utilitarianism, Nozick goes on to discuss property rights. According to Nozick ownership—or justice in holdings—is determined by historical acquisitions, rather than according to any patterned theory of distributive justice. This is because—since the natural rights of individuals are determinative of the parameters of right actions—the key question to ask is whether they were adequately respected in a historical process of acquisitions. In this case, Nozick claims ascertaining whether the acquisition of a holding was just is determined by a three-step process. Firstly, was the holding acquired without coercively violating any else’s natural rights? Secondly, if the holding is being transferred from one person to another, is this being conducted in a non-coercive manner? And thirdly, am I free of obligations to redistribute the holding in my possession to compensate for some past injustice? If the answer is yes to all questions, then I am entitled to keep the holding.
Note that the genius of this approach is that it is not obviously subject to the objections of moral arbitrariness raised by figures such as Rawls, whose main target is meritocratic theories of desert. On the surface, Nozick’s account of justice in holdings is neutral on questions of who deserves what. What it claims is that individuals are entitled to their holdings so long as they acquired or transferred them in a rights-respecting manner and are not obligated to compensate others for past injustices. Beyond that, whether an individual deserves this or that is a non-issue. Indeed, one of the critiques of patterned theories of distributive justice Nozick makes is there is a presumption that a more knowing individual, backed by state power, is in a position to make determinations about who should get what according to their particular moral outlook. The fundamental problem with a patterned theory of distributive justice is that it rests upon an implicit assumption that it is permissible to violate the liberty rights of individuals in order to establish what the Rawlsian or Marxist philosopher considers to be the best end state. But allowing people to be free will inevitably disrupt such patterns, as demonstrated vividly by Nozick’s “Wilt Chamberlain” thought experiment. Framed in its most powerful form, the thought experiment asks us to consider a scenario where holdings were distributed in a fully egalitarian fashion—perhaps something akin to Poland in 1989. A talented basketball player—Nozick refers to the American Wilt Chamberlain—emerges who places a box in front of an auditorium requesting a small stipend in order to play. Since there are many sports aficionados in the city, they happily pay to see Chamberlain play, and he very quickly becomes rich. In this case, the liberty of actors—in this thought experiment, Chamberlain and his devoted fans—disrupted the initially equal pattern. But this in no way implies that any wrong-doing was conducted. If anything, every person got what he or she wished.
The Limitations of Nozick’s Argument
Nozick’s argument is a brilliant reinterpretation of the Lockean-Kantian tradition of property rights, which confirms him as one of the most interesting political philosophers of the 20th century (taken too soon). Nevertheless, I think his argument is fundamentally flawed in very deep ways. The most obvious is the aforementioned problem with merely asserting the existence of rights—and then placing such immense weight on this assertion to carry an entire theory of distributive justice and, ultimately, politics as a whole. A second fundamental difficulty, frequently observed, is that Nozick’s argument is ultimately a single principle theory. As much as he relies on an assertion about the existence of pre-legal rights, Nozick places an equally immense weight on the idea that liberty—conceived of as non interference—is all that matters. This is by no means obvious to me, and it seems extremely vulnerable to Rawlsian objections about what actually impartial reasoners would prefer to select as principles. It seems unlikely that such reasoners—whether behind the veil of ignorance or adopting a more Scanlonian contractualist reasoners—would decided to grant non-interference the absolute weight given to it by Nozick.
Finally and most importantly, I think that Nozick’s approach demonstrates the limitations of ideal theory for reasoning about distributive justice—a problem he, himself, seems to acknowledge with his footnote on the need for considerable redistributions of holding to compensate for a long history of injustice and exploitation. Nozick never fully takes on the Marxist objection that conceiving of property in an ahistorical sense irrevocably involves idealizing them to such an extent that they exist as ideological abstractions from the material world. This applies at every level of his analysis. The assertion that rights just exist follows naturally from these idealizations—since, to a certain extent, they are necessary postulates to get the entire system going. Once one insists that we not just take a very particular conception of natural rights to be a given, one is lead to two conclusions. Either one requires some justificatory theory ala Rawls to defend the conception, which leads to the issue of whether most rational actors would decide on such a stringent vision of property rights—or one is led to the (largely but by no means exclusively Marxist) point that liberal rights historically emerged and were codified within law to protect the interest of the wealthy and powerful. In this respect, the historical theorizing on the protection of property rights was not only highly contingent and, hence, unnatural. It also depended on the force of law and ultimately violence to back up its legitimacy claims, which runs very counter to Nozick’s own positions concerning the use of coercion. Given this, the argument for natural rights to property—as it is distributed now—seems to either fall into a mere assertion, or it needs to be defended as but one more transhistorical scheme among many which runs very contrary to the actual goings on of the world history where people piously invoked their “rights,” while going on to exploit and colonize others.
As such, I do not think that even the strongest Lockean-style argument for property rights can stand. The most basic reason for this is my belief that a system of rights should not be connoted as natural and, as such, placed beyond criticism in an authoritarian manner. It is long past time that we abandon the transcendent appeal to rights as ways to settle more arguments, in part because—following Derek Parfit—it is far more constructive to ask why and which rights matter. The same is true when discussing liberty as Nozick defines it. When we ask why freedom is important, we do not simply inquire into whether a person is uncoerced or not. We ask what they are actually capable of doing with that freedom and the dignity this gives to their life, conceived of as a total project.
The above is excerpted from the forthcoming book Liberalism and Liberal Rights: A Critical Legal Argument.
Matt McManus is Professor of Politics and International Relations at Tec de Monterrey, and the author of Making Human Dignity Central to International Human Rights Law and The Rise of Post-Modern Conservatism. His new projects include co-authoring a critical monograph on Jordan Peterson and a book on liberal rights for Palgrave MacMillan. Matt can be reached at firstname.lastname@example.org or added on twitter vie @mattpolprof