Is the theory of justice in Anarchy, State, and Utopia patterned?
Abstract. In this essay I shall argue that Nozick's theory is a patterned theory. In part 1, which constitutes the first half of the essay, I examine the nature of the un/pattemed distinction, and conclude (a) that Nozick cannot make his theory unpattemed merely by stipulation, (b) that a theory may be partially-patterned, and (c ) that Nozick relies for the plausibility of his overall position on his theory being unpattemed. In part 2., I give reasons for choosing to argue that Nozick’s theory is patterned. In part 3., I argue that Nozick does not rule out patterned principles on any general grounds. In part 4., I argue .that Nozick does not adhere to the doctrine that property-entitlements are to particular objects, and indeed drifts towards a position which regards persons' entitlements as to a utility-level, and that such a position is required by his derivation of the minimal state. I suggest that this can only undermine Nozick's claim to having put forward an unpattemed theory. Part 5 suggests that the Lockean proviso is based on a patterned principle, both in -the 'micro' form involving individual acts, and in Nozick's desired ‘macro' form, which takes the effects of civilisation as a whole. The points made in part 4 combine with the features of the Lockean proviso to create a theory which can only at the expense of all plausibility be regarded as unpattemed. I conclude that Nozick's theory must be regarded as at least partially patterned, and as such must compete on equal terms with other theories. I suggest that it is unlikely to succeed in such a competition.
The significance of the patterned/unpatterned distinction.
Nozick calls his theory 'unpatterned', as distinct from 'patterned' theories.. On this basis, he rules out of court certain (patterned) objections as begging the question against his own theory. What exactly does the distinction amount to? At least two statements made in Anarchy, State, and Utopia suggest possible bases for characterising a theory as unpatterned rather than patterned:
(NC): The distributions arising from the theory could not arise from the application of any one patterned theory operating on the same situation, [p. 157] (NC stands for Non- Coextensive)
and
(L): Liberty
(NC)
Nozick states that his 'entitlement theory' of justice is an 'unpatterned historical' theory. It is 'historical' because it determines the justice of a distribution of goods according to how it came about, rather than whether it matches a prescribed state of affairs at any given time. It is Unpatterned' because it does not consist in filling in the gap in a maxim of the form: 'To each according to his___', or at least,
there is no one natural dimension or weighted sum or combination of a small number of natural dimensions that yields the distributions generated in accordance with the principle of entitlement, [p. 157]
However, the restriction of this negative existential statement to the domain of small numbers of natural dimensions [1] hardly seems one which can support a principled distinction. Perhaps we should replace NC with NCP: the theory is not coextensive with any plausible or simple pattern. Of course, this renders the distinction itself principled, at the expense of rendering the criterion it invokes vague and indeterminate. However, though Nozick allows that it may be possible to construct a pattern in terms of natural dimensions which will render distributions commensurate, via some real-valued function, with those rendered by his theory, he states that such a pattern will not fully describe the distribution in question:
...even if the restriction to natural dimensions failed to exclude [some real- valued function expressing the relative strength of a person's entitlements], the resulting edifice would not capture our system of entitlements to particulars. [p. 157, note.]
The intuition behind this is that the just distribution rendered by his theory results from specific transactions between consenting adults, which are in themselves justice preserving, and from a principle of just initial acquisition of particular goods which is not derived from a requirement to supply specifiable people with specifiable quantities of goods, except insofar as these specifications are entailed by the requirements rendered by the totality of his principle(s) of entitlement. So Nozick regards not only (NCP), but also (NC) as true of his theory, the distinction on this basis being dependent on Nozick's commitment to particularity of property holdings. We may note, though, that if Nozick's theory does not demand such particularity, this basis disappears. Furthermore, particularity of property-holdings would be a fact under any ongoing system of institutions which involves property-rights of some kind: the difference will depend on such particularity being 'accidental'; perhaps the fact that my ownership of a particular object is not a necessary requirement for justice to obtain.
But there are problems with such a modal analysis, too. In Nozick's system, if someone else had beaten me to claiming a particular plot of land, I would not have owned it, but instead a different one; but this need not defeat justice. It seems that Nozick must specify the descriptions of persons and property under which property-rights are necessarily particular. He must also place the necessary particularity given these descriptions amongst the most fundamental principles of justice, rather than those derived from more abstract considerations (e.g. Mill's 'indirect utilitarianism', which might regard a person, described as the maker of x, to be entitled to x as a particular object on the basis that such a general practice is preferable to any other practice). if he is to preserve a distinction along these lines. However, even this will not work: we may note that necessary (i.e. essential, built into the theory) particularity is not a sufficient condition for a theory's being unpatterned: we can think of patterns such as 'to each those things that they more than anyone else {deserve, or love, or can make good use of...}', which would satisfy the necessary particularity condition at the most fundamental level.
(L)
Using the examples of a popular entertainer 'Wilt Chamberlain', who becomes rich, and an entrepreneur in a socialist society who gives lectures after hours in exchange for spare-time labour on a machine made from his own personal property, thus acquiring a larger quantity of goods [pp. 160-2], Nozick asks:
If Dl was a just distribution, and people voluntarily moved from it to D2, transferring parts of their shares under Dl (what was it for if not to do something with?), isn't D2 also just? [p. 161]
Nozick suggests that if D2 is just, it should not be 'interfered with'. Since voluntary transfer of property (on Nozick's conception of property) will often increase or decrease at least one person's stock of transferable goods, it seems that patterns are defeated by free trade, which is just liberty to transfer property-rights and not to have one's property-rights violated. The exercise of such liberty cannot, Nozick suggests, cause injustice; nor can 'interference' with the exercise of such liberty be justified. So Nozick might specify an unpattemed theory by:
(~IL): The theory does not interfere with liberty.
On the basis of the examples, Nozick seeks to show that 'liberty upsets patterns', and that therefore patterns interfere with liberty; what he in fact shows is that the maintenance of a patterned distribution requires interference in the distributions resulting from human activity; that is, patterns do not (except in limiting cases) maintain themselves. Untrammeled liberty would upset the 'pattern' derived from his principles, too (hence his principle of rectification). So the examples serve only to show that Nozick espouses a Lockean conception of liberty, as the freedom from coercion, to exercise one's rights: if this is the explicit formulation of what Nozick means by liberty, then the only form of liberty with a genuine role to play in Nozick's exposition is the general (competitive)liberty to do anything that is not wrong (or the prohibition of which would be just). This liberty is plainly not properly explicated without reference to what exactly is considered to be wrong , or what conduct may justly be prohibited (and hence punished).
Without a conception of the right, the description of such a liberty becomes contentless. Consider:
"Catch-22 says they have a right to do anything we can't stop them from doing." [2]
This is an ultra-thin conception of the right: here the 'right' or liberty may as well not exist: it can have no function in regulating persons' conduct. So Nozick is really making the claim that his conception of liberty as constrained only by the rights conferred by the entitlement theory is primitive, and patterned principles attempt illegitimately to interfere with this liberty. So the distinction on the basis of interference with liberty collapses into one on the basis of interference with legitimate activity. This seems viciously circular: many theories can be formulated which do not permit interference with 'legitimate' (by their own lights) activity. Rawls's would be an example of one which is also patterned. [3]
Perhaps, then. Nozick could find a basis for the 'non-interference' criterion from amongst the arguments given for Lockean property-rights. [4] If there is a way out of the circle, it must lie in an independent specification of legitimate activity. He might suggest that since persons have the expectation that they will enjoy the fruits of their labours (which expectation is the usual reason for labouring at all), and this expectation is upheld only by an unpattemed historical theory like his, a clear distinction can be formulated on the basis of
(~IE): The theory does not interfere with the fulfilment of people's reasonable expectations.
This would seem to be a plausible explication of the intuitive idea that the entitlement theory is opposed to 'continuous interference with people's lives' [p. 163]. It is not clear that this basis for the distinction can escape a charge of circularity, either. If the explication of legitimate activity is in terms of reasonable expectations, or some such notion, then it is made solely on the ultra-conservative premise that persons' expectations (a) cannot, or (b) should not, be changed.
Since persons are clearly able to change their expectations on the basis of new information, the premise must be (b): these expectations should not be changed. But this seems to beg the question: Why should expectations be maintained, if not because the conditions giving rise to them (i.e., in this case, the institution of Lockean property-rights) should themselves be maintained?
(~IE), then, fails along with the other bases for the distinction so far examined. Perhaps, stretching charity to its limit, we should regard 'interference with liberty' as a unitary, unanalysed notion: the intrusive interference of government in daily life, or some such vague intuitive idea. But the same question-begging circularity afflicts even this attempt to rescue this kind of distinction: it is not the case that other 'patterned' systems would necessarily involve extensive or intrusive interference with everyday life.
Nozick starts with the assumption that his notions of property and trade are the only viable ones: that there will always be a strong tendency for persons to act in accordance with only the rights he describes. He ignores the fact that other systems of distribution can be institutionalised and made allowance for, as, for example the paying of V.A.T., which (though some may attempt to avoid it, just as a thief may attempt to 'get away with it') is not perceived, or not widely perceived, as 'interference'; where the practice is criticised, it is generally on more abstract grounds, such as injustice or distortion of the market.
We might observe that Nozick's 'forced labour' argument [p. 169] does not show that taxation amounts to interference any more than Nozick's 'rectification' does. Since the paying of taxes is allowed for in deciding what work to do, and if income below a basic level is not taxed, there is no question of forced labour. The price I can command for my labour is always out of my control, so why should a slightly reduced rate of return for labour be considered equivalent to slavery? If money or goods had a natural tendency to evaporate somewhat whenever exchanged, we would resign ourselves to the fact, and our daily choices would perhaps be no different. The difference between such natural 'evaporation' (perhaps inflation, depreciation, and even, given the near-necessity of dealing through banks, bank-charges, fulfil a similar role) and what Nozick regards as unjustifiable redistribution is simply that the latter is stipulated to be unjust, and hence is assumed to be, like forcing another person to perform a particular action at a particular time (when they might otherwise choose not to), objectionable. So the idea that extensive 'redistribution', or the introduction of a set of institutions which would lead to distributions diverging from those which would arise in Nozick's system, is inherently wrong, depends on, and does not support, Nozick's conception of rights. As Nozick comments,
The fact that others intentionally intervene, in violation of a side-constraint.. .to threaten force to limit the alternatives...to paying taxes...makes the taxation system one of forced labour, and distinguishes it from other cases of limited choices which are not forcings. I am unsure as to whether the arguments... show that such taxation merely is forced labour,... or... show that it is plausible and illuminating to view such taxation in the light of forced labour. This latter approach would remind one of how John Wisdom conceives of the claims of the metaphysicians, [p. 169. Emphasis mine.]
Nozick draws the distinction between forced labour and unforced limitations on choice in terms of the violation of a side-constraint. By this he means that 'forced labour' is to describe only actions procured by rights-violating coercion. The question returns to rights. Is it plausible and illuminating to regard Nozick's rights as correct in placing taxation 'on a par with’ forced labour?
Only if Nozick's rights themselves are plausible. So the 'L' basis for the distinction seems to depend on a more fundamental distinction between kinds of political theory. The inconclusiveness of the 'E' basis has pointed to the kind of criterion we are looking for: we need to take account of the status of property-rights, and any other fully-specified, day-to-day principles: are they derivative or fundamental? To clarify the nature of the distinction, we must examine more closely the way Nozick presents his theory.
The real distinction
The entitlement theory is presented as an accurate description of our strongest intuitions about justice. So strong are these intuitions that they override absolutely other intuitions which derive their force from considerations of need, desert, utility, or indeed anything other than the observance of his principles of self-ownership, and the principles of just acquisition, transfer and rectification. Such a position, regardless of its compatibility or otherwise with the existence of a -utopia', seems consistent with consequences such as serious and easily avoidable poverty, de facto slavery due to the free market in labour, and other such perceived iniquities. If Nozick is preaching to the unconverted, he must suggest: 1. that such consequences are acceptable, given the consequences of not adhering to his conception of justice, or 2. that such consequences would in fact be unlikely to occur (perhaps if this were so, it would be possible to subsume the isolated cases which did occur under the category of-moral catastrophe', thus licensing the overriding of individual rights (in his later book, Nozick states that he -imagined that teleological considerations would take over to avert moral catastrophe, but did not specify what determines where this transition takes place"[5]), or 3. that the consequences are simply not relevant to considerations of justice. Any of these claims, if used to argue against an opposing conception of justice, will constitute an attempted justification of Nozick's position, whether Nozick wishes to acknowledge this or not.
Various considerations adduced by Nozick in the course of his wide-ranging discussion play some part in rendering his position more acceptable (e.g. the many teleological considerations mentioned in the course of his discussions of punishment, unproductive exchange, prohibition of risky acts, the Lockean proviso,...). In order accurately to evaluate the force and to discern the implications of the argument, it is necessary to distinguish those considerations on which the acceptability of Nozick's conclusions rests from those which are mentioned only in passing, in the course of his
philosophical exploration of issues, many fascinating in their own right, which arise and interconnect when we consider individual rights and the state [p.xii]
1. seems unlikely to succeed, since his is not the only plausible account of rights compatible with some system of property, the observance of individual rights to certain basic liberties, and the provision for self-determination of some sort. We might suggest that if the bad consequences of not allowing free trade, not internalising the rights we confer, and not allowing people to pursue their own conception of the good life are given infinite weight in some consequence- appraising procedure, then such a lexical ranking amounts to the assumption that rights absolutely override all other considerations: so on this view 1. Reduces to 3.
If, on the other hand, we allow the consequences of non-rights infringing events to count for something, then Nozick cannot in all consistency stipulate that his rights are side-constraints. In such a case, rights are given a deeper explanation, and such an explanation is the true ground of the theory. Such a theory would either reduce rights to something else entirely, or aim to resolve the apparent conflict between negative rights and our intuitions about consequences by some means such as a constructive interpretation of what these intuitions amount to, perhaps postulating certain other regulative notions (fairness, 'true' equality of some intuitively acceptable kind, etc.) We should note that Dworkinian or Rawlsian equilibria, which allow for some 'give-and-take' between conflicting considerations of justice, would concede considerably more ground to those favouring more extensive -redistributive' measures.
2. is at best open to dispute, and at worst both ludicrously over-optimistic in fact, and in principle destructive of Nozick’s position, since his 'side-constraints' would be allowed to constrain only on the understanding that there was nothing much to constrain. Though Nozick does use arguments of this kind, they are not relied upon, but (illicitly) used to 'sweeten the pill' of his uncompromisingly deontic conception of justice. It would seem, then, that Nozick's defence of his position rests on 3: the claim that consequences per se are irrelevant to the justification of his basic theory of justice.
I have already shown that on any reasonable interpretation of Nozick’s claim that 'liberty upsets patterns' the appeal to liberty drops out of the argument, its function being that of making the relatively anodyne assertion: 'people will do things, and unless the thing they are doing is wrong, you mustn't punish them'. So it would seem that "liberty upsets patterns" ought more perspicuously to read: "Nozick-rights must always overrule patterns". If rights N are dependent on (and hence justified by) pattern P, then the fact of N's overruling patterns C conflicting with P, and of N's never being overruled by P itself, should not be considered substantive truths about justice, but as trivially true as a consequence of N's dependence on P. The focus then switches to P's acceptability or otherwise. If, however, pattern P is justified by rights N then the proposition that 'Nozick-rights must always overrule patterns' has some real work to do. It will not be P which does the overruling on N's behalf. The question of P' 's acceptability will not be of interest in itself: rather we will concentrate on N.
If the entitlement theory can be shown to be motivated by considerations of the distributions arising from its adoption ('patterned' considerations), then it would seem that there is no longer any principled reason for Nozick to rule out of hand other patterned considerations, such as the claim of all to a basic standard of living (a claim presently recognised, or at least paid lip-service, by most, if not all, governments of our time.) As I have suggested above, there is much in Nozick's justification that is implicit, or which is relied upon at one time, only to be ignored once it has done the work of justifying the minimal state. How do we tell the difference? Most probably by seeing which direction of justification leads from a simple formulation to a complex one: but the simplicity or otherwise of a formulation will depend on how much is taken for granted, and how much fully explained, as we have found in the case of Nozick's Lockean conception of liberty. So it is not complexity of formulation which shows the direction of justification: it is the priority or primitiveness of the concepts involved.
Nozick's claim to have expounded an unpattemed theory rests on his claim that there is no deeper teleologically-based determinable system (like Sidgwick's 'government-house' utilitarianism, or Rawls's 'Basic Structure'[7] of which his system of rights is a determination. The significance of the 'pattemed/unpattemed' distinction now becomes clear. An unpattemed theory is not one which does not coincide with a distribution according to a maxim of the form 'to each according to ____', but one which does not derive its justification from the acceptability of any such maxim. However, a theory of justice need not be purely patterned; a maxim of the type referred to may have a satisficing function, as, for example, 'to each according, whenever possible, to their innate entitlement to basic standard of living b.' Such a maxim does not specify how any surplus should be distributed; if things were to go well (as 2. above would claim), the course of events resulting from this maxim, operating as a proviso constraining adherence to Nozick's principles, would be indistinguishable from Nozick's preferred course of events. So a maxim such as this would not conflict with any of Nozick's actively approved consequences; only those about which he expresses unease (or might be expected to be uneasy).
Maybe there is an implicit consequence- regarding element in the deep justification of Nozick's theory- one which if explicated would change the character of the theory. The plausibility of Nozick's position depends on the assumption that the entitlement theory is not a disguised patterned theory, and need not compete on equal terms with other, patterned theories which might demand, with some plausibility, more extensive redistribution. This depends on his exclusion of all patterned considerations, so that he must show that his theory does not include any element of patterning, at least in a justificatory capacity.(A pattern may be conformed to as a result of 'invisible hand' processes, as Nozick suggests. The point is that Nozick claims that such patterns should not in themselves determine what the distribution is to be.)
Since the 'patterned/unpatterned' distinction rests on the direction of fit between substantive principles of justice, and just distributions, it would seem that a patterned principle will nonetheless be patterned (though perhaps not plausible) regardless of its extreme (even intractable) complexity. It is clear that Nozick's principles will not easily be characterised as a function of 'natural dimensions', but if they can be seen as justified only or partly by some consideration related to those of desert, worth or need (where these are definable independently of the notions of 'justice' and Nozick's 'entitlement'),or anything else not reducible to the observance (and rectification or punishment of infringements of) rules of commutative justice preserving the presumed justice of some 'initial' situation, then Nozick cannot justifiably claim to have shown a significant difference between his theory and what he calls 'patterned' theories. The demonstration that such a difference exists is necessary to relieve him of the requirement to justify the distributions rendered up by the operation of his entitlement principle.
2. Polemic licence
It may be suggested that the claim that Nozick's theory is patterned is simply untenable. Nozick's entire point is that patterned principles have no part to play in political theory. It is quite true that the majority of the text of Anarchy, State, and Utopia indicates a strong commitment to an unpattemed theory. However, there are two related reasons why I have chosen to suggest that Nozick's theory is a disguised patterned theory, rather than simply regarding his appeals to patterning considerations as illicit, and thus drawing the less surprising conclusion that his attempted justification of some state or other is deficient.
Firstly, it is in the first part of the book that the basic structure of his system of rights is expounded, while it is not until the second part of the book that the patterned/unpattemed distinction is made. in order to render more palatable his substantive conclusions about distributive justice. So any patterned considerations in part 1 will infect Nozick's system regardless of his subsequent repudiation of the 'patterned' approach. Secondly, Nozick is sometimes criticised on the basis that certain of his arguments in part 1- the justification of the minimal state- invoke principles which would lead to far more widespread 'redistribution' than he is willing to countenance. But 'redistribution' used in this way is a relative term: it implies an initial distribution of de facto control of resources, which is altered so as to conform with a just distribution of ownership or control of resources. Nozick's conclusion from part 2, which deals with the limits of permissible state intervention in the distribution of resources, does not place specific limits on redistribution in this sense: he merely states that
...a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement [sic] of contracts, and so on, is justified, [and] that any more extensive state will violate persons' rights... [p.ix ]
This does not presuppose any particular kind of property-rights: if we find that Nozick's conception of property has surprisingly radical consequences, like requiring reparations to the descendants of aboriginal Americans, or the impermissibility of charging certain kinds of economic rents, then so much better for the acceptability of the theory to those of a liberal persuasion. The only way in which such surprising consequences could count against Nozick's theory as it is, rather than as it is assumed that it is intended to be, is if they are consequences of principles relied on by Nozick which can only plausibly be regarded as patterned. In this case the argument against Nozick will not be that these consequences run counter to his philosophy, but precisely the opposite: these consequences are in tune with his philosophy, because it is a patterned philosophy. It follows from this that the pattern in question must compete on equal terms with other patterns. I suggest (but will not argue) that Nozick's theory is unlikely to survive such a contest.
I shall now argue that Nozick's theory relies on patterned considerations. I shall suggest that Nozick does not rule out patterned considerations except by stipulation, and that the Lockean proviso as used incorporates a thinly-disguised pattern. I do not, of course, wish to accuse Nozick of dishonesty, only of a mistake about the basis of some of the intuitions embodied in his theory. It is the theory, not facts about any person, which is of interest to political philosophy.
3.The choice of an unpattemed theory is not adequately motivated.
Nozick himself acknowledges the prima facie case for taking account of desert or fairness, but states:
While feeling the power of the question [why desert and fairness are to be disregarded]..., I do not believe they overturn a thoroughgoing entitlement conception. [ASU, p. 237]
It is my contention that not only does Nozick feel the power of such questions: he also covertly or inadvertently makes certain concessions to a patterned theory of distributive justice, incorporating elements which do not align themselves plausibly with the units from which he claims to construct the edifice of his theory of justice (basic, irreducible negative rights). These elements appear to be overarching regulative principles, which must be regarded as constituting juridical constraints over and above negative rights. I suggest that the nature of these principles commits him to some degree of patterning in the way he derives his just distribution. As I have already argued, this robs his theory of the special status he claims for it, and means that objections to the distributions which may arise from his principles cannot be ignored. In the section of the book concerned with ruling out a more-than-minimal state, Nozick states that
The major objection to speaking of everyone's having a right to various things...is that these "rights" require a substructure of things and materials and actions; and other people may have rights and entitlements over these...Other people's rights and entitlements to particular things...and how they choose to exercise these...fix the external environment of any given individual and the means that will be available to him...No rights exist in conflict with this substructure of particular rights. Since no neatly contoured right to achieve a goal will avoid incompatibility with this substructure, no such rights exist. The particular rights over things fill the space of rights... [p.238]
We may observe that here Nozick explains his rejection of positive claim-rights, and hence a patterned distribution, on the basis of his basic (negative) rights, which override all other considerations of 'justice' (though they are not necessarily exhaustive of such considerations). The justification of his rights is nowhere fully explained, except as based on a Kantian 'people-as-ends-not-means' view of morality [pp30-31]. A claim to such a basis for his own theory is made by Rawls, could plausibly be made on behalf of Dworkin, and could not be denied to Kant himself. None of these three, however, would rule out positive rights or duties in the way Nozick does. (The distinction between positive and negative rights itself depends on how widely a person's 'boundaries' are drawn: 'rights to property' is not a univocal phrase, and if on a given conception of property you do not have the appropriate ownership rights over x, any duty I may have to refrain from interfering with it in a certain way will be a positive, not a negative, duty.)
One political thinker who does not treat persons as ends, but as means to the fulfilment of God's will, is Locke, who states that men (humans) are the servants of one sovereign Master, whose workmanship they are made to last during His, not one another's pleasure... Every one as he is bound to preserve himself... so... ought he as much as he can to preserve the rest of mankind, and not unless it be to do justice on an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb or goods of another. [10]
Nozick does not appeal to theological arguments, which leaves his theory lacking the basis which Locke claimed for his. A corollary of this fact is that, while Locke is quite at liberty to mix teleological and deontological arguments (God's plan is devised beyond the temporal world), Nozick does not enjoy this luxury. As he admits, with disarming frankness:
This book does not present a precise theory of the moral basis of individual rights... of retributive punishment... or... of the tripartite theory of distributive justice it presents. Much of what I say rests upon or uses general features that I believe such theories would have were they worked out. [p.xiv] That task [the statement of the moral theory and its underlying basis] is so crucial, the gap left without its accomplishment so yawning, that it is only minor comfort to note that we are following the respectable tradition of Locke, who does not provide anything resembling a satisfactory explanation of the status and basis of the law of nature... [P9]
Nozick seems to be suggesting that distributive justice is 'pure procedural justice': that is, it specifies procedures such that any distribution which arises from the operation of those procedures is, ipso facto, just. But he gives no reason why we should accept the entitlement theory as an example of pure procedural justice. In the absence of any such reason, we might suspect that the theory can claim only to be an example of perfect procedural justice: that is, it specifies procedures which guarantee a certain outcome which is independently established to be just. It would be even more tempting then to make the move to imperfect procedural justice, which means that the procedures do not even guarantee the just outcome. In these cases, the theory would require a thorough overhaul, and would emerge as a quite different, and clearly patterned, theory.
4. The 'particularity' of holdings is not a constant feature of Nozick's theory
In extracts quoted above, Nozick mentions 'entitlements to particular things'. As we have seen, he appeals to this aspect of his theory as constituting the insurmountable obstacle to making his conception of justice instantiate a pattern (note, p. 157). We have already seen that particularity, even at the most fundamental level, is not a sufficient condition for a theory's unpattemedness. The question must now be: is particularity a necessary condition for a theory's being unpattemed? If it is, and Nozick's theory is committed to principles which conflict with the particularity of all property-rights, then we may conclude that Nozick's theory is (at least partially) patterned. It is hard to establish an answer to the question: it seems that Nozick regards the entitlement to particular things as very important to the un/pattemed distinction, but does not specify exactly why. We have established that the distinction is one about the direction of fit between the justice of distributions and the justice of the procedures which render those distributions. The 'fact of the matter' about this direction of fit must be a matter of plausibility: I suggest that at the very least, a failure to endorse universal particularity of property entitlements will remove one claim the theory may make to being regarded as unpattemed.
I suggest that Nozick's argument is inconsistent with a strong commitment to the particularity of property-entitlements, for two closely-related reasons. The first concerns rectificatory compensation. Rectificatory compensation in Nozick's system might most naturally seen as deriving from the notion of 'title' to an object: if A steals my b, title to the b remains mine throughout. It is therefore within my rights to recover the b from A. If, however, A takes and destroys my b something a little puzzling happens. My title to the b is transferred to some object(s) previously belonging to A, of the same 'value' as b.[12]
Earlier in the book [p. 58], the question is raised: why ever prohibit (where compensation can and will be paid)? The main reason given is that compensation which only returns one to ones previous indifference curve (ordinal utility-level) is not adequate: the benefits of exchange all go to the boundary-crosser:
A system cannot [sic: should read 'can'] avoid the charge of un- fairness by letting the compensation paid for a border-crossing equal that price that would have been arrived at had a prior negotiation for permission taken place...The best method to discover this price, of course, is to let the negotiations actually take place and see what their upshot is. Any other procedure would be highly inaccurate, as well as incredibly cumbersome, [p.65]
This treatment of the question makes it a matter of practical expedience whether boundary-crossings in general are to be punished (are forbidden). [13]
The 'principle of compensation', whereby persons may be forbidden from performing certain 'risky' acts provided they are compensated for disadvantages, is required by Nozick's argument for the state's legitimate arrogation to itself of a monopoly over coercion by violence or the threat of it, since it permits a 'dominant protective agency' to prohibit private enforcement of rights (a risky act), and at the same time requires it to extend its protection to those thus prohibited (compensation for disadvantages), [pp. 83-88] No convincing explanation is given of the justification for the principle; as Nozick remarks:
I am not completely comfortable presenting and later using A principle whose details have not been worked out fully... [14]
I would suggest that the details of the principle will turn out to be derived from patterned considerations: certainly the closest Nozick gets to a justification of the principle (the notion of unproductive exchange [p.84]) involves consideration of the division of the benefits of exchange, as mentioned above, and of complex bundles of counterfactuals involving utility-levels: not a plausible basis for a claim to have avoided patterning. The cases in which boundary-crossings are always forbidden regardless of compensation seem to be those involving injury, or other impingements upon the person, as distinct from property [pp. 66-67]. Nozick gives two reasons for this: first, such damage may be incompensable, and alternatively, that even where it is known that compensation will be paid, the non-existence of a deterrent punishment for such acts will nonetheless create a climate of general apprehension:
Even under the strongest compensation proposal which compensates victims for their fear, some people (the non-victims)will not be compensated for their fear. Therefore there is a legitimate public interest in eliminating these border-crossing acts...[p.67]
This suggests either: (PI) a 'public interest' justification for prohibitions (if fear is not regarded as a compensable border-crossing), or (FC) a specification that fear produced by certain border-crossings should be compensated for. (PI) seems untenable, since the public interest is not supposed to override individual rights; the only way in which the public interest could justify a prohibition would be as a rationale for the particular system of individual rights that Nozick has chosen: in this case, the public interest would justify (FC). by including the imposition of fear in the category of interference with the person, which is compensable as an infringement of rights to non- interference. So we are left with (FC), which would (presumably) licence a prohibition on the grounds that the compensation required would, even if affordable, be difficult to assess and distribute. As we have seen, the calculation of appropriate rectificatory redistribution involves the economist's concept of 'indifference', which might suggest a pattern involving utility rankings.
The suspicion that there is some such patterning involved in fundamentally important areas of Nozick's theory would be strengthened if we take (FC) to be the position adopted; if fear is compensable in some way. If a state of mind such as fear can be compensated for, the question arises what other utility reductions require consent for their legitimacy. Although Nozick specifies that
...not every act that produces lower utility for others generally may be forbidden; it must cross the boundary of others' rights for the question of its legitimacy even to arise [note, p.67],
It would be undesirable, and is not excluded by anything I say below, for someone to channel all of his pollution effects high above anyone's property volume, making the sky a murky grey- green. [p. 79]
This example demonstrates that Nozick does (as he should) take account of intangible effects on others. The context of this extract establishes that a person who is affected by such pollution should be compensated: that is, intangible effects can constitute 'boundary- crossings.' It is hard, indeed, to see how this conclusion could be avoided: the kind of economic analyses in which Nozick involves himself are concerned with goods and bads, which are just those things sought and those things avoided. Nozick mentions that
The possibility of surrounding an individual presents a difficulty for a libertarian theory that contemplates private ownership of all roads and streets, with no public ways of access. A person might trap another... [note, p. 55]
Nozick's use of the Lockean proviso.
The Lockean proviso as applied by Nozick is patterned
Nozick suggests a weakened form of the Lockean proviso governing justice in acquisition, which extends also to cover subsequent transfer, that is that no person, present or future, may be made worse off, in terms of goods available for use (not for acquisition, since any permanently bequeathable acquisition will, given other acquisitions, reduce the opportunity for acquisition of some future person), relative to some baseline. Nozick appears to regard this baseline as somehow deriving from the state of affairs which would have obtained had a state of nature been maintained. Does Nozick here mean: had no acquisition taken place (ever)?
It may be noted that the weak Lockean proviso, in introducing restrictions on the exclusion of others from using acquired property (restrictions which remain in force through subsequent transfers; p. 180), imposes duties on those who own property not to use it in certain ways; these restrictions might come into force suddenly, due to the restriction through natural events of the usable supply of the resource in the rest of the world/accessible area. An example is the only waterhole in the desert not to dry up.(Admittedly, if special precautions against evaporation were taken, the waterhole is still 'fully- owned; this raises the question of whether other waterhole owners are culpable for having excluded others from taking such precautions vis-à-vis their waterholes.)
The effect of this is a transformation of Nozick's property-rights, from permanently bequeathable and inviolable rights, to constantly renewable permissions to exclude others, which are conditional on states of affairs which may be beyond the control of any human being. Lockean property-rights seem to be strange, spectral entities which (or aspects of which) pop in and out of existence according as the situations of other people change. This picture seems very different from that of ultimate, irreducible and fundamental moral-political facts which link people to their property in such a way that they may resist any other moral demand that they give up any part of it. We may here make use of the notion of an 'organic' principle: that is, one under which
an unjust distribution, according to the principle, can be gotten from one the principle deems just, by deleting (in imagination) some people and their distributive shares. Organic principles focus on features dependent upon the overall pattern, [p.209]
We may point out that the Lockean proviso makes Nozick's principle an organic (and hence, plausibly, a patterned) theory. If, for example, there are two waterholes, both owned by different persons, one of which is fenced around to make it inaccessible to all but its owner, the other being accessible to anyone, then the situation may be just. Delete the unfenced waterhole (and its owner) and the situation is unjust. So the Lockean proviso makes Nozick's system a patterned one: in fact, 'an especially strong kind of patterned principle.' [p.209]
In fact, bearing in mind Locke's theological/teleological basis for his theory of justice, we may feel a strong suspicion that Nozick has not inspected his raw materials closely enough, and that what he considered to be a simple, unitary concept of property was in fact a complex conception of property which includes a strong patterned element. The problems do not end here: Nozick states that
compensation would be due those persons, if any, for whom the process of civilisation was a net loss... [note, p. 178]
This is a key claim to acceptability for Nozick's theory: the premise that persons should not be made worse off by the process of civilisation (including the institution of property) is a minimal assumption shared by mutual advantage theorists, and impliedly by almost every other political theorist going (we must remember that before property, and hence farming and trade, is instituted, the highest standard of material wealth would be subsistence.) The only exception might be the direct act-utilitarian; but that theory is neither a patterned nor an unpattemed historical theory, but a current-time slice theory, and a very unpopular one at that (it is unpopular for the same reason that it is an exception to my generalisation).
However, since Nozick specifies that the Lockean proviso may be violated as a result of goods being transferred piecemeal to an ‘agglomeration’[p. 180], may we not surmise that any group of persons might perform the function of an agglomeration? It seems plausible that some externalities (positive or negative) may be the result of unconcerted acts (for simplicity I assume them simultaneous) of many individuals. To use the example given in the previous section, perhaps a person might be surrounded by other persons' buildings (or roads). It is uncertain how the burden of compensation should be shared between those who are jointly responsible for reducing the circumstances (relative to the baseline) of others.
Perhaps persons' acts which are INUS conditions (members of minimal sets of jointly sufficient conditions) should incur liability, or only the most recent human action to be an INUS condition [15]. The problem may arise of overdetermination, as of the intervention and antecedence of natural events, and of the occurrence of causal forks. Since anyone's being below the baseline is evidence for the violation of the Lockean proviso it follows that someone owes them compensation. It may well be, however, that there is not (even in principle) any way of determining who this is. In such a case it would seem that the attempt to reduce the justice or injustice of a state of affairs to the justice or otherwise of individual acts done by individual persons has broken down.
The weak Lockean proviso seems to entitle every person to a package of goods (or an indifference level), which they would possess in a hypothetical situation stipulated to be just. This seems a typically -patterned- feature for a theory. Where the effects of civilisation as a whole are taken into account, there seems to be a conflation of(l) redistribution as compensation for the disadvantages caused by civilisation, and (2) identifying persons responsible for specifically unjust transactions, and enforcing the rectification of those injustices and their consequences. If (l) supervenes on or otherwise coincides with (2), without determining what (2) is to consist of, this has not been shown. On my assumption that (1) is more important to Nozick than (2), it seems that the theory is a patterned one.
Nozick's theory is patterned
If one person's violation of a Lockean proviso (vis-à-vis a particular type of good, or a unique good) may be compensated for by the supply of an entirely different good (commensurate via indifference) by the unintended consequences of the actions of some other persons, in circumstances which may involve causal overdetermination and the proliferation of claims to 'goods- corresponding to more-or-less determinate descriptions of objects (and/ ?) or states of mind, is it really both plausible and practicable to regard the situation as derived from any acceptable conception of 'primitive' rights? I think that the answer must be 'no'.
I have outlined some concerns which would, I think, reward closer consideration, and which I believe suggest that it is neither plausible nor practicable to regard the distributions actually or purportedly arising from Nozick's entitlement theory as arising solely from an intuitively plausible conception of basic rights. If this is so, then the entitlement theory must be either ungrounded and so apparently arbitrary, or subject to explanation in terms of some prior or independent regulative principles. If the latter, reasons should be given for the choice of these (and, more urgently, only these) principles. Further, I have given some reason to think that the weak Lockean proviso embodies a (partially) patterned principle, which suggests that the prior principles mentioned above are patterned principles. I have not attempted to formulate a pattern which Nozick's theory could be said to be based on, for two reasons.
First, the pattern would probably be only a partial pattern: it would not in itself specify distributions coinciding with those arising from Nozick's system, and even if it did, the task of specifying such a pattern would be a fiendishly complicated and difficult one. Secondly, and more importantly, I have no reason to attempt such a formulation. The theory, regarded as patterned, is not one which I would consider acceptable, for the sufficient reason that it does not confer any rights, even on the deserving, to have access to the means of survival where such access does not impede another's .
(7 485 words)
Notes
[1] Nozick assumes that there is no problem with recognising the distinction between 'natural'
and 'non-natural' dimensions.
[2] J.Heller: 'Catch-22', ch. 39, pa. 5.
[3] J.Rawls: 'A Theory of Justice'.
[4] I do not consider the 'value-added' or 'labour-mixing' arguments for acquisition, as neither one is adequate. See J.Waldron: 'The Right to Private Property'.
[5] R.Nozick: 'Philosophical Explanations', p.495
[6]See Rawls, ibid., and R. Dworkin, 'A Matter of Principle'.
[7] See Rawls, ibid.
[8] An example of non-rights based consideration is the 'deterrence' condition for inflicting part of deserved punishment.
[9]See Rawls, ibid., R. Dworkin, 1981, and I. Kant: 'The Metaphysical Elements of Justice'. [10]Locke, second treatise, ii,6.
[1 I] Anarchy, State and Utopia, pp 6-9.
[12]This point is also made by Eric Mack in 'Unproductivity: the Unintended Consequences', in Paul, 'Reading Nozick'. [13]It seems incongruous that a rights-theory should allow it to be a matter of weighing up consequences whether or not an act is to be punished: retributive theories usually make punishment mandatory.
[14] 'Anarchy, State, and Utopia', p87. I had hoped to say more on this subject, but considerations of space precluded all but a few gnomic remarks. Mack (ibid.) deals with many of the issues involved.
[15]INUS conditions are discussed in Mackie, 'Causes and Conditions', in Sosa & Tooley, 'Causation.'
Bibliography
Dworkin, Ronald. 'What is Equality? Parts I & II' Philosophy and Public Affairs 10.
A Matter of Principle. Harvard University
Heller, Joseph. Catch-22. Vintage, 1994.
Kant, Immanuel The Metaphysical Elements of Justice, (trans. Ladd). Bobbs-Merrill, 1965.
Locke, John Two Treatises of Civil Government. Dent, 1924.
Nozick, Robert Anarchy, State, and Utopia. Blackwell, 1974.
Philosophical Explanations. Clarendon Press, 1981.
Paul, Jeffrey (ed.) Reading Nozick. Blackwell, 1982.
Rawls, John. A Theory of Justice. OUP, 1971.
Sosa, Ernest, and
Tooley, Michael (eds.) Causation. OUP, 1993.
Wolff, Jonathan, Robert Nozick: Property, Justice and the Minimal State. Polity Press.
1991.
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