Canadian Journal of Philosophy

Justice and Historical EntitlementAuthor(s): Neil CooperSource: Canadian Journal of Philosophy, Vol. 7, No. 4 (Dec., 1977), pp. 799-803Published by: Canadian Journal of PhilosophyStable URL: http://www.jstor.org/stable/40230720 .

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CANADIAN JOURNAL OF PHILOSOPHY Volume VII, Number 4, December 1977

Justice and Historical Entitlement

NEIL COOPER, University of Dundee

The aim of a theory of justice appears to be to find an explanation of our intuitive judgments in this area, an explanation which is capable of yielding, at any rate eventually, answers to particular questions of social policy. The difficulty of constructing such a theory is due partly to the many elements in the concept of justice. To assert that there is more than one concept of justice wou Id be to take the easy way out; to say that there is only one simple concept, as Robert Nozick appears to do (Anarchy, State, and Utopia, Princeton, 1974) is to narrow to an unwarranted extent the application of the concept.

Any adequate concept of justice must include amongst its ingredients fairness, entitlement or right, desert, need, reciprocity and the relative paramountcy of the concept. Nozick's historical- entitlement theory explains both the connection of justice with entitlement and the relative paramountcy of the concept. But it does not show, as it should, the connection of entitlement with the other elements in the concept of justice. Nozick's version of the entitlement theory, I shall argue, is not utterly misguided, but it is inadequate, lacking any plausible application to real life and failing to specify a common feature to link the different elements in the concept of justice.

The historical-entitlement theory provides a recursive or inductive criterion of justice. Now inductive definitions are perfectly in order provided that one can get started. The historical-entitlement theory gets a grip, is capable of being applied, if and only if Nozick's first principle, the principle of justice in the original acquisition of holdings (op. at., pp. 150ff.), can be applied. We can show that holdings as of

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Neil Cooper

the present time are justly distributed if and only if they have come about by just transfers from an original position, in which individuals, endowed only with their natural assets, proceeded to acquire property by 'mixing their labour' in non-scarce commodities. In point of fact, however, we cannot trace the history of our present entitlements to an original acquisition. Even if we could, we should be compelled to weigh in the balance so many violated rights that it would be impossible to wipe the slate clean and declare of some acquisition, 'This is an original acquisition, untarnished by any infringed rights, this provides us with a first beginning in a chain of just holdings'. But, if the historical-entitlement theory is correct, then, unless we are able to produce such a chain, including a just beginning, we shall be unable to show the justice of any system of holdings whatsoever.

But even if Nozick's theory were applicable, it would have to face grave difficulties both of a moral and of a conceptual character. Nozick (op. cit., Chapter III) deals at some length with the nature of side-constraints, and it would appear that there must be side- constraints on what is to count as a just transfer. If there are such side- constraints, they must either be side-constraints of justice or side- constraints of morality in general. If they are side-constraints of morality in general, then justice is not paramount. But if the side- constraints are side-constraints of justice, this can only be because there are some principles of justice which are not purely historical- entitlement ones, a conclusion which Nozick would presumably be unwilling to accept. If, on the other hand, there are no side-constraints at all, then it must follow that entitlements can be bought and sold and that there can be no inalienable rights. Such a view would make 'capitalist acts between consenting adults' always permissible and the path would be cleared to a society so paradigmatically unjust that the only remedy would be a Solonian shaking-off of burdens. It is difficult to decide which of these alternatives Nozick would prefer. The easiest course might be for him to concede that justice was not paramount, but this too has consequences unacceptable to him. For if justice is not

paramount, he can no longer reason from 'Men are entitled to

everything which flows from their natural assets' to 'Men ought to have everything which flows from their natural assets', which is

precisely what he does on p. 225 of the book ("5. If people are entitled to something, then they ought to have it"). It would appear that, whichever alternative Nozick chooses, consequences follow which necessitate the emendation of the historical-entitlement theory.

Further qualification of the theory is necessary if we take full account of scarcity. In Locke's version of the theory original acquisition was justified only if there was 'enough and as good as' of the commodity for others, where by 'others' was meant other of one's

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Justice and Historical Entitlement

contemporaries. But if we are to be genuinely historically orientated, we must regard ourselves and our posterity with parity of esteem. Hence, since there are no logical limits to the number of our posterity, any consumable commodity is potentially scarce. This line of reasoning would appear to lead to the conclusion that appropriation for permanent ownership is never fully justified, only appropriation for use. (Perhaps we should accept this conclusion and reflect with Lucretius that 'vitaque mancipio nulli datur, omnibus usu'.) Where, then, we have an overcrowded world and an indefinitely large posterity, there must be a presumption of scarcity for any consumable commodity and thus any appropriation at all stands in need of justification.

Nozick's theory involves 'taking rights seriously'. But if we are going to take rights seriously, we must take obligations seriously too, and this compels us to introduce the notion of justice as reciprocity. It is because Nozick neglects the reciprocity element in justice that he makes unnecessary problems for himself. For example, at one point (op. cit., p. 173) he sees an incoherence in a welfare state where citizens are allowed to emigrate but not to opt out of the help-the- needy scheme while remaining in the country. Justice as reciprocity, I

submit, removes this incoherence. A citizen, who tries to opt out of such a scheme while remaining in his country, retains and expects to retain certain rights, at the very least the right to be protected in his

private property. Justice as reciprocity requires that he be discharged from all obligations if and only if he gives up all his entitlements. It is

only if he emigrates and renounces his citizenship that he really gives up all his entitlements.

But Nozick does not feel the force of justice as reciprocity. He says (op. cit., p. 175): '... an object's coming under one person's ownership changes the situation of all others. Whereas previously they were at liberty (in Hohfeld's sense) to use the object, they now no longer are. This change in the situation of others (by removing their liberty to act on a previously unowned object) need not worsen their situation'. But, morally speaking, it always does. For Hohfeldian liberties are non-

obligations and to terminate a non-obligation is to create an

obligation. Justice as reciprocity forbids the creation of asymmetrical obligations, it requires that new property-owners have new

obligations to balance their new rights and the new obligations they have created for others. Justice as reciprocity acts as a side-constraint on any conception of justice, and this applies no less to the historical- entitlement theory than to any other. While not itself yielding a just pattern of holdings, justice as reciprocity can eliminate some patterns of distribution as unjust. But, like 'end-state and most patterned principles of distributive justice' (p. 172), justice as reciprocity would seem to 'institute (partial) ownership by others of people and their

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actions and labour'. Such partial ownership, Nozick implies, is always objectionable. But this is not so. When Locke (Second Treatise on Government, Chap. V) speaks of himself as owning 'the turfs my servant has cut', this may betoken an objectionable partial ownership which Locke for one innocently assumes without question as justifiable. But it is objectionable in so far as it may fail to satisfy the requirements of justice as reciprocity. If Locke's servant had a reciprocal partial ownership in his 'master', this would be just. There is no injustice if we are 'members one of another', if for every right A has in B, B has a right in A.

Nozick's neglect of the reciprocity element in the concept of justice leads to a gross imbalance in his treatment of 'natural assets'. Consider what Nozick calls (op. cit., p. 225) his 'acceptable argument C :

'1. People are entitled to their natural assets. 2. If people are entitled to something, they are entitled to

whatever flows from it (via specified types of processes). 3. People's holdings flow from their natural assets.

Therefore,

4. People are entitled to their holdings. 5. If people are entitled to something, then they ought to have it

(and this overrides any presumption of equality there may be about holdings).'

From these five propositions Nozick can infer

6. People ought to have their holdings.

It is Nozick's first proposition which needs careful scrutiny, especially since it may too readily win our assent before we have even decided what it means. What it must mean, I think, is that we are entitled to make use of our natural assets. For from the mere unexercised possession of natural assets nothing can 'flow'. We should, then, emend proposition 1 to read

1A. People are entitled to make use of their natural assets.

In this amplified form 1A the first proposition looks more

interesting as well as more dubious. Are people entitled to make any use of their natural assets? Or just good use? Or only the best use? A swarm of further questions arise, questions unanswered by Nozick but

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justice and Historical Entitlement

needing to be answered before his argument can be allowed to

proceed. What is Nozick committed to saying about natural handicaps? Is he

saying not only that we are entitled to use our own natural assets but also that we are entitled in some sense to other people's natural handicaps, i.e., that we are entitled to take advantage of their natural

handicaps? This would seem to be the implication of Nozick's view that there can be no injustice in 'the natural lottery'. The initial distribution of talents is presumed just; we are entitled to every relative advantage which God or Nature may grant us. Nozick, on this argument, is entitled to all his many natural assets, but he is also entitled to the

preservation of the status quo for the paralysed mental defective; he has a right, it would seem, to the relative advantages that he enjoys over the maimed and the stupid. In the Capitalist Utopia it is 'to each

according to his relative advantage'. But what of the paralysed mental defective? What is he entitled to, lacking, as it would seem, almost all natural assets? Nothing? Would even Nozick claim that this was a just world?

Outside Nozick's theory it is possible to cater for justice with reference to handicaps as well as justice with reference to assets. Our natural handicaps are not on a par with our natural assets. For our natural handicaps are just those characteristics of each of us which

prevent us from making full use of our natural assets. If we are en- titled to make good use of our natural assets (my replacement for Noz- ick's first proposition above), then we are entitled to the power to make good use of these assets. Entitlements without power are but words and of no benefit at all. If we are entitled to such power, we are entitled to remedy against anything which impairs that power. Even the paralysed mental defective has some natural assets, and he is entitled to such help as can be provided to enable him to make the best use of them. It is for the very reason that we have assets that we may be said to have needs. Intelligence is a natural asset, whose use is made possible and easier by nutrition and education. It is be- cause we have intelligence that we need education; without it there would be nothing to educate.

An adequate theory of justice will have to cater for handicaps and needs as well as for assets, for unhistorical as well as for historical entitlements and for obligations as well as for rights. Nozick has shown with ingenuity and intellectual integrity how far one can go with a very narrow concept of justice. I have tried to show that there are both moral and conceptual reasons for adopting a wider base for a theory of

justice.

September 1976

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