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Natural Rights and Distributive Justice: Nozick and the Classical Contractarians*

Published online by Cambridge University Press:  10 November 2009

Ron Replogle
Ron Replogle
Affiliation:
New York University
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Abstract

Robert Nozick seeks to extract a substantive theory of distributive justice (“the entitlement theory”) from what he takes to be the formal properties of natural rights (or rights-based) theory. The unsoundness of his arguments supports the longstanding suspicion that all such theories are conceptually confused and ideological biased. Yet upon examination, the classical (chiefly Lockean) views that Nozick regards as a prototype of natural rights theory withstand that suspicion precisely in so far as they lack the formal properties of his own theory. I conclude that theories of the classical form are better equipped to resolve political arguments.

Résumé

Robert Nozick cherche à extraire une théorie substansive de la justice de distribution (« The Entitlement Theory ») a partir de ce qu'il consideré étre les propriétés formelles de la théorie des droits naturels. Le manque de solidité dans son argument confirme le vieux soupçon que la théorie des droits naturels en tant que telle soit conceptuellement conftisée et ideologiquement tintée. Pourtant, lorsqu'on les examine, les idées classiques (principalement celles de Locke), que Nozick croit etre le prototype de la théorie des droits naturels, résistent à ce soupçon précisement dans la mesure où ils n'ont pas les propriétés formelles de sa propre théorie. En conclusion, je pense que les théories de forme classique sont mieux équipées pour l'évaluation objective des institutions sociales fondamentales.

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Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 17 , Issue 1 , March 1984 , pp. 65 - 86
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1984

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References

1 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar, ix. Henceforth, page references will appear parenthetically in the text.

2 Following Nozick, I shall ignore the question “of whether these side-constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror” (30). Although it is unclear to me in what sense side-constraints are “unconditional” if such situations present themselves, the suggestion affords Nozick a way of evading the conclusions expressed in this article. He can respond that the situations regarded by classical contractarian theory as typical qualify in his terms as being catastrophic, in which case their argument would resolve itself into a dispute about how typical catastrophies are. It is a virtue of the classical view that it avoids these equivocations. See the discussion of “innocent threats” in the second section.

3 Notable proponents include Rawls, John, A Theory of Justice (Cambridge: The Belknap Press, 1971), 3–4Google Scholar, and Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), chaps 6 and 7.Google Scholar

4 For example, Cohen, G. A., “Robert Nozick and Wilt Chamberlain: How Patterns Preserve Liberty,” Erkenntnis 11 (1977), 16–18, 21Google Scholar; Nagel, Thomas, “Libertarianism Without Foundations,” Yale Law Journal 85 (1975), 145Google Scholar; Brian Barry's review in Political Theory 3 (1975), 335.

5 Hume, David, A Treatise of Human Nature, ed by Selby-Bigge, L. A. (Oxford: The Clarendon Press, 1888), 491.Google Scholar

6 Burke's rejection of the rights-thesis was unqualified. Of natural rights theorists he wrote: “The pretended rights of these theorists are all extremes; and in proportion as they are metaphysically true, they are morally and politically false. The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balance between differences of good; in compromises between good and evil, and sometimes between evil and evil.” Burke, Edmund and Paine, Thomas, Reflections on the Revolution in France and the Rights of Man (Garden City: Dolphin Books, 1961), 75.Google Scholar

7 See The Grundrisse, trans, by Nicholas, Martin (Garden City: Vintage Books, 1973), 87–88.Google Scholar

8 See in particular Cohen, “Robert Nozick and Wilt Chamberlain,” passim.

9 Compare the argument of Kuflick, Arthur, “Process and End State in the Theory of Economic Justice,” Social Theory and Practice 8 (1982), 73–94CrossRefGoogle Scholar. While I contest that the patterned/nonpattemed distinction distinguishes Nozick's view from competing theories, Kuflick contests the end-state/historical distinction. I believe Nozick's claim that his theory is historical is not trivial. On the topic of nonpatterned theories see Davis, Michael, “Necessity and Nozick's Theory of Entitlement,” Political Theory 5 (1977), 219–233.CrossRefGoogle Scholar

10 See Dworkin, , Taking Rights Seriously, chap. 12.Google Scholar

11 See Scanlon, Thomas, “Nozick on Rights, Liberty and Property.” Philosophy and Public Affairs 6 (1976), 13–15.Google Scholar

12 Nozick here quotes from Locke. Locke, John, Second Treatise of Government, ed. by Macpherson, C. B. (Indianapolis: Hackett Publishing, 1980)Google Scholar, sect. 4. Henceforth section (Sect.) references will appear parenthetically in the text.

13 It might be argued. I think correctly, that the second stage of Locke's state of nature necessarily arises only among people who need to cooperate with each other. No compelling incentives to accumulate things would arise unless individuals already shared some conventional standards for distributing entitlements. This is a major thesis of Rousseau's Discourse on the Origin of Inequality. See Rousseau, Jean-Jacques, The First and Second Discourses, ed. by Masters, Roger D., trans, by Masters, Judith R. (New York: Saint Martin's Press, 1964), 191–203Google Scholar and passim. Individuals innocent of any such conventions, like Rousseau's natural men, would have no occasion to employ principles of justice at all. But individuals who have lost not only the taste but the capacity to fend for themselves cannot avoid the second stage of the state of nature. It must be the business of a rights-based theory of justice to evaluate all the conventions that constitute such a situation.

14 The structure of this kind of theory is usefully analyzed by Scanlon (“Nozick on Rights, Liberty and Property,” 19–20).

15 Kant, Immanuel, The Metaphysical Elements of Justice, trans, by Ladd, John (Indianapolis: Bobbs-Merrill, 1965), 43–44Google Scholar. Emphasis added.

16 Kant, , Kant's Political Writings, ed. by Reiss, Hans, trans, by Nisbet, H. B. (Cambridge: Cambridge University Press, 1970), 73Google Scholar. Emphasis in original.

17 Rousseau, Jean-Jacques, The Second Contract, trans, by Kendall, Willmore (Chicago: Henry Regnery, 1954), 76.Google Scholar

18 See Macpherson, C. B., The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1964), 228–39.Google Scholar If he is correct, Locke recognized that a private property economy would generate (or not remedy) the dependence of some individuals, but did not regard those individuals as the bearers of the full schedule of natural rights. It must in any case be remembered that Locke was not trying in the Second Treatise to justify capitalism, but the replacement of a King to an audience that took their property holdings largely for granted. It is unsurprising, then, that he should not systematically define the scope of legitimate property rights.

19 “Not inconceivable” because Nozick admits there can be innocent threats. Perhaps this occurs under what he calls “catastrophic” situations. But he propounds the co-possibility of rights without qualification in the passage cited.