TEXAS UIL LINCOLN-DOUGLAS DEBATE RESEARCH SERIES …...TEXAS UIL LINCOLN-DOUGLAS DEBATE RESEARCH...

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TEXAS UIL

LINCOLN-DOUGLAS DEBATE RESEARCH SERIES

VOL. 19 SPRING 2013 NO. 2

RESOLVED: IN MATTERS OF JUSTICE, JOHN RAWLS' DIFFERENCE PRINCIPLE OUGHT TO BEPREFERRED OVER ROBERT NOZICK'S ENTITLEMENT THEORY.

Lincoln Douglas was created as a debate format designed to emphasize questions of value. Effectiveparticipation in Lincoln Douglas debate produces familiarity with the great philosophers of the ages. The Spring 2013UIL Lincoln-Douglas topic offers an exciting opportunity to explore the two leading theories of justice. This topic willgive debaters an opportunity to understand how the current political divide in American politics finds its roots inclassic philosophical theories. Libertarians, such as Kentucky Senator Rand Paul, and Tea Party candidates such asMinnesota Representative Michele Bachman, argue for lower taxes, less welfare spending, and minimal government.President Obama, along with most Congressional Democrats, argues that wealthy individuals should pay more taxesso that the federal government can continue to support domestic welfare spending. John Stick, professor of law atthe University of Southern California Law Center, traces the origin of these current political divisions to the competingphilosophies of Rawls and Nozick:

The relationship between Rawls and Nozick is not a matter of interest for philosophers only.Although the first burst of discussion that greeted their work in the early 1970s has passed, many ofthe present legal policy debates between liberals and conservatives over the distribution of wealth,the nature of property rights, and the proper role of government in regulating the market are stronglyinfluenced by Nozick and Rawls. Most contemporary theorists that oppose progressive taxationbecause it interferes with the functioning of the market rely on Nozick's political arguments. Rawlsand Nozick are central to the contemporary debate over welfare rights, the strength of propertyrights, the interpretation of the takings clause, and general theoretical discussions on the nature ofproperty law. (Northwestern University Law Review, Spring 1987, p 364)

Anupam Chandler, professor of law at the University of California at Davis School of Law, also identifies thejustice theories of Rawls and Nozick as central to political controversies: “Robert Nozick stands as one of theforemost intellectual antagonists to claims for distributive justice. John Rawls, meanwhile, penned the most importantmodern political theory justifying an egalitarian society” (U.C. Davis Law Review, March 2007, p. 564).

John Rawls’ Difference Principle

John Rawls (1921-2002), long-time professor of philosophy at Harvard University, is the author of the classic1971 work, A Theory of Justice. In the Preface to his book, Rawls explains his intention to provide an alternative tothe justice theories of the “great utilitarians,” David Hume, Adam Smith, Jeremy Bentham, and John Stuart Mill. Heexpresses concern that the critics of utilitarian justice have failed to provide a well-developed alternative theory. Hisintention is to correct this shortcoming: “What I have attempted to do is to generalize and carry to a higher order ofabstraction the traditional theory of the social contract as represented by Locke, Rousseau, and Kant. In this way Ihope that the theory can be developed so that it is no longer open to the more obvious objections often thought fatalto it. Moreover this theory seems to offer an alternative systematic account of the tradition. The theory that results ishighly Kantian in nature” (p. viii).

So what does it mean that Rawls wants to position himself in the Kantian tradition, rather than as a utilitarianphilosopher? The German philosopher, Immanuel Kant, believed that justice must be examined deontologically –meaning we must always ask about our duties and moral obligations before looking to the consequences of thoseacts. This means that “the right must precede the good.” Karen Lebacqz, professor of ethics at the Pacific School ofReligion, offers the following explanation in her book, Six Theories of Justice:

Traditional notions of justice appear to be flouted by a theory that claims the "right" act iswhatever maximizes the good. Individual rights or claims would be overridden by consideration of the"happiness" of others. For example, if the bloodshed of a threatened race riot could be averted byframing and lynching an innocent person, it seems that the utilitarian would have to say it is "right" todo so. long as the "greater good" required it, all individual rights and claims would be ignored.

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Because of such apparent implications of utilitarian theory, issues of justice have consistently been astumbling block for utilitarians. (1986, pp. 17-18)

Rawls offers what he calls his “two principles of justice:”

First: Each person is to have an equal right to the most extensive basic liberty compatible witha similar liberty for others.

Second: Social and economic inequalities are to be arranged so that they are both (a)reasonably expected to be to everyone's advantage, and (b) attached to positions and offices opento all. (A Theory of Justice, 1971, p. 60)

The “Difference Principle” arises from Rawls’ second principle of justice. Before explaining this principle,however, it is essential to recognize that Rawls makes his first principle more important than the second: “Theseprinciples are to be arranged in a serial order with the first principle prior to the second. This ordering means that adeparture from the institutions of equal liberty required by the first principle cannot be justified by, or compensatedfor, by greater social and economic advantages. The distribution of wealth and income and the hierarchies ofauthority, must be consistent with both the liberties of equal citizenship and equality of opportunity” (A Theory ofJustice, 1971, p. 61).

So if “basic liberties” must be assured before the “Difference Principle” kicks in, what does Rawls mean by“basic liberties?” He offers the following explanation: “The basic liberties of citizens are, roughly speaking, politicalliberty (the right to vote and be eligible for public office) together with the freedom of speech and assembly; liberty ofconscience and freedom of thought; freedom of the person along with the right to hold (personal) property; andfreedom from arbitrary arrest and seizure as defined by the concept of the rule of law. These liberties are all requiredto be equal by the first principle, since citizens of a just society are to have the same basic rights” (A Theory ofJustice, 1971, p. 61).

After these basic liberties have been assured, inequalities (or differences) in things such as income or propertycan be just so long as the inequalities work to “everyone’s advantage.” Consider the following example: workerscould reason that everyone working at their factory should receive the same income at $15 per hour. Suppose wediscover that we could hire a person with expert skill in supervision at $30 per hour. By hiring such a person, factoryoutput improves such that everyone else in the factory can now earn $20 per hour. Would factory workers insist onretaining equality of income at $15 per hour, or would they accept the income difference that seems to work toeveryone’s advantage? For Rawls, the question is always whether the difference is of benefit to the “leastadvantaged.” Why is he not equally concerned about the welfare of those at the top of the income scale? Well, anincome difference obviously works to the advantage of those at the top of the scale. If we want to know whether thedifference works to “everyone’s advantage,” our attention must turn to the impact of the difference on the leastadvantaged. Rawls believes that a properly functioning free market system can “lift all boats.” But it will do so only ifproper attention is given to equalizing opportunity for all.

John Schaar, professor of philosophy at the University of California at Santa Cruz, offers the followingexplanation of the “Difference Principle:”

The Difference Principle asserts that inequalities are justifiable only if they are to theadvantage of the worst-off representative man or group. We are to agree to consider the unequaldistribution of talents and abilities among a population as a general social resource which can bearranged to work to the advantage of all, rather than as a source of strength for some and weaknessfor others. No one is to benefit from the contingencies of nature or social position "except in waysthat redound to the well-being of others". In the conception of justice as fairness, people in effectagree to share one another's fate. Reciprocity and mutual benefit must prevail over considerations ofsocial efficiency and technocratic values. (John Rawls’ Theory of Social Justice, 1980, p. 170)

How does Rawls know that his theory of justice is the correct one? His answer is a theoretical device that hecalls “the veil of ignorance” in the “original position:”

The idea of the original position is to set up a fair procedure so that any principles agreed towill be just. The aim is to use the notion of pure procedural justice as a basis of theory. Somehow wemust nullify the effects of specific contingencies which put men at odds and tempt them to exploitsocial and natural circumstances to their own advantage. Now in order to do this I assume that theparties are situated behind a veil of ignorance. They do not know how the various alternatives willaffect their own particular case and they are obliged to evaluate principles solely on the basis ofgeneral considerations. It is assumed, then, that the parties do not know certain kinds of particular

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facts. First of all, no one knows his place in society, his class position or social status; nor does heknow his fortune in the distribution of natural assets and abilities, his intelligence, and strength, andthe like. (A Theory of Justice, 1971, pp. 136-137)

In essence, Rawls is suggesting the terms of a social contract. Members of a society should establishprinciples of justice that will work for all, regardless of race, class, income or any other consideration. The role of the“veil of ignorance” in Rawls theory is explained by Donna Byrne, professor of law at the Widener School of Law:

Rawls reasons that from a "veil of ignorance" people would agree on principles of generalequality with the goal of maximizing the position of those who are worst off. To the extent that someinequality results, people are entitled to that inequality as long as it does not jeopardize the veryinstitutions developed under the equality principles. Any system developed under Rawls's principles,then, would require constant "correction" to maintain the ideals of equality. Some of this correctionwould come in the form of wealth transfer taxes and progressive income taxes. That such"correction" might reduce the overall size of the economic pie is not such a concern for Rawlsbecause the main goal is not a maximum pie overall, but maximum slices for those at the bottom.This "maximin" is not chosen as a goal because we feel sorry for those at the bottom or because wethink that wealth is undeserved, but because it seems logical that as a matter of social contract,people in the original position would agree to such an arrangement in order to improve their ownworst case scenarios. (Arizona Law Review, Fall 1995, p. 777)

Behind the “veil of ignorance” each person has to ask whether the rules that govern a society would work forthem regardless of their position in that society. In his “Letter From a Birmingham Jail,” Martin Luther King, Jr.observed that “an unjust law is a code that a numerical or power majority group compels a minority group to obey butdoes not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majoritycompels a minority to follow and that it is willing to follow itself. This is sameness made legal.” King is pointing outthat some people are willing to establish justice rules for others that they would never make binding on themselves.Rawls’ “veil of ignorance” offers a device for the formation of a social contract that will work for all parties, regardlessof societal position.

What does Rawls say about international income differences? Would he, for example, say that Americanshave a justice obligation to create equality of opportunity for poor children in Africa? Somewhat surprisingly, Rawlssays there is not such an obligation. Brian Shaw, professor of philosophy at Davidson College, explains Rawls’reasons for this limitation on the Difference Principle:

In arguing that well-ordered peoples have an obligation to help burdened societies satisfy theirmembers' basic needs and against claims that they have duties to achieve more, Rawls pointedlydenies the applicability to global circumstances of distributive principles like his own DifferencePrinciple, Thomas Pogge's "Egalitarian Principle," and Charles Beitz' "global distribution principle".He justifies this denial by alleging a fundamental disanalogy between the kinds and extent of socialcooperation entered into by the members of liberal societies and those adopted by independentpeoples. In the first case, Rawls argues that citizens unite in a close "cooperative venture for mutualadvantage" and embrace some liberal doctrine to determine "the proper distributions of the burdensand benefits of social cooperation." In the second, however, he implies that no close cooperationoccurs and denies that peoples adopt any distinctively liberal principle to govern their relations. Fromthese premises he draws three conclusions: that inequalities in the contemporary global distributionof resources "are not always unjust"; that the basic structure of the Society of Peoples does notsystemically disadvantage poor societies or exert coercive effects upon them; and that one's birthinto a burdened society rather than a liberal one need not be regarded as morally arbitrary andtherefore demanding justification, or still less rectification. (Journal of Politics, Feb. 2005, p. 223)

Should we understand Rawls’ Difference Principle as advocating socialism rather than capitalism? Rawlsinsists that free markets are consistent with his theory. Arthur DiQuattro, professor of philosophy at Reed College,discusses this part of Rawls’ philosophy:

Under socialism, the market might be used to allocate resources efficiently but never todistribute income, wealth, or power in proportion to the distribution of privately held capital. In eithermarket socialist or property-owning democratic systems, distribution is determined politically inaccord with the principles of justice. Rawls recommends the use of markets because of theadvantage of allocative efficiency and because he feels that comprehensive planning tends tointerfere with equal liberties and fair equality of opportunity, that is, market devices decentralize

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economic power and enhance free choice of occupation. But there is another, more important reasonfor Rawls's insistence on markets. And he does insist: "The ideal scheme sketched . . . makesconsiderable use of market arrangements. It is only in this way, I believe, that the problem ofdistribution can be handled as a case of pure procedural justice." (Political Theory, Feb. 1983, p. 69)

Robert Nozick’s Entitlement Theory

Robert Nozick (1938-2002), like Rawls, a professor of philosophy at Harvard University, is the author of theclassic 1974 work, Anarchy, State, and Utopia. Nozick and Rawls were colleagues at Harvard, and while theirphilosophical disagreements were sharp, their respect for one another was apparent. Nozick opens his critique ofRawls’ with the following explanation:

A Theory of Justice is a powerful, deep, subtle, wide-ranging, systematic work in political andmoral philosophy which has not seen its like since the writings of John Stuart Mill, if then. It is afountain of illuminating ideas, integrated together into a lovely whole. Political philosophers now musteither work within Rawls’ theory or explain why not. (Anarchy, State, and Utopia, 1974, p. 183).

Predictably, however, Nozick then proceeds to explain why he thoroughly rejects Rawls’ notions of justice.Nozick offers three principles of justice that he calls “Entitlements:”

(1) A person who acquires a holding in accordance with the principle of justice in acquisition isentitled to that holding;

(2) A person who acquires a holding in accordance with the principle of justice in transfer, fromsomeone else entitled to that holding, is entitled to the holding; and

(3) No one is entitled to a holding except by (repeated) applications of (1) and (2). (Anarchy,State, and Utopia, 1974, p. 151).

Nozick believes that justice begins and ends with the ownership of property. If a person owns property, thatperson has the right to use it as he or she chooses. Conversely, no other person has the right to take propertywithout just compensation. Nozick’s problem with Rawls is that he seems to view property as if it falls as “mannafrom heaven.” Rawls has his members of society, standing as if behind a “veil of ignorance,” deciding how otherpeople’s property should be redistributed. The problem is that this property is already owned.

Nozick explains that his own theory of justice is “historical,” while Rawls’ theory is based on “patterning” or“end states.” Rawls looks across a society and asks how property should best be “patterned” or distributed. WhatRawls ignores is that persons are already justly entitled to the property they own. Nozick explained this keydifference from Rawls in an Autumn 1973 article in Public Affairs: “The general outlines of the entitlement theoryilluminate the nature and defects of other conceptions of distributive justice. The Entitlement Theory of justice indistribution is historical; whether a distribution is just depends upon how it came about. In contrast, current time-sliceprinciples of justice hold 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” (p. 50).

Nozick bases his notion of property ownership on the writings of John Locke. Christopher Nock, professor ofphilosophy at McMaster University, provides the following background:

Ordinarily, the key to identifying what resources individuals are entitled to is the equal libertyprinciple. People, through their own free activities, have developed legitimate entitlements which theymay dispose of as they will. In Nozick's framework the key to sustaining this view is his entitlementtheory, which Nozick presents as a direct development of Locke's theory of appropriation set out inthe Second Treatise. Locke suggested that originally, in a state of nature, the equal right to libertywould have given all the right privately to appropriate land and other resources from nature for theirown use. This was so provided that the things appropriated were not allowed to spoil, and providedthat there were still enough and as good natural resources left in common for others. However, overtime persons' access to enough and as good would have disappeared. Some men would havelegitimately come to own large quantities of land and other resources, leaving others in a position inwhich they would have to labour for owners to provide themselves with the necessaries andconveniences of life. This could have happened, Locke's framework suggests, without any violationof the equal liberty principle. As such, this framework seems to offer a basis from which to develop alibertarian justification of large and unequal capitalist property rights and the wage labour relationsthese imply. (Canadian Journal of Political Science, Dec. 1992, p. 681)

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Nozick makes masterful use of analogies throughout his book. One of his most famous analogies concernsbasketball player, Wilt Chamberlain. He reasons that because of Chamberlain’s talent, people were willing to paylarge amounts of money to see him play. Because Chamberlain “owns” his talent, he has every right to becomewealthy as a result of the free choices that people make when they buy basketball tickets. This, he says, is a perfectexample of the magic of the capitalist system – it allows free exchanges among consenting adults. The governmenthas no right to deny Chamberlain the opportunity to become wealthy.

Nozick also makes a distinction between justice and altruism. Consider the damage caused by a hurricane. Hewould regard the suffering of hurricane victims as bad, but not unjust. A wealthy resident unaffected by the hurricanemight feel an altruistic impulse to assist the hurricane victims, but there would be no justice obligation to do so.

Nozick, like his libertarian followers, believes that all taxation for the purpose of redistribution is theft – it takes,by force, what belongs to one person in order to give it to another. Jeffrey Schoenblum, professor of law at VanderbiltUniversity School of Law, explains this part of Nozick’s argument:

Suppose you are sitting in your home and a stranger breaks in and removes, under threat,valuable assets belonging to you or your family. The police come, return your property, and arrestthe intruder. He argues at his trial that he was a member of the lower middle class, you were uppermiddle class, and he wanted to even things up. In addition to the destabilizing political implications ofhis defense, many persons would be deeply troubled by the unfairness of his being able to take whathe had not earned from someone else who had earned it. If there are many such persons in thecommunity and they band together to authorize democratically elected officials to take the sameproperty, under color of law, this is described as high income earners paying their fair share. Someof us may be misled by this use of language and the intermediation of the state and its agents tobelieve that the fair thing has been done. The high income earner who does not wish to participate inthis taking will have no recourse. By interposing the state, those who earn less can take away fromthose who have earned more. They can do this without regard to who contributed more of value tothe society as a whole. In effect, the majority of the society, through democratic, majoritarianprocesses, approves a system where some are required to work more for the common good thanothers. (The American Journal of Tax Policy, Fall 1995, pp. 259-260)

The key differences between Rawls and Nozick will provide ample ground for debate on the Spring UIL LincolnDouglas resolution. Rawls defends the right of government to use taxation to support public education, Nozickopposes government funding of education. Rawls calls for redistributive taxation to fund welfare programs, Nozickopposes all systems of redistributive taxation. Rawls calls for big increases in the inheritance tax, arguing that wealthshould not so easily transfer from one generation to the next; Nozick opposes all inheritance taxation. Rawls defendscapitalism only insofar as it provides for the least advantaged members in a society; Nozick defends a theory ofnearly unbridled capitalism. Rawls is an advocate of a strong central government; Nozick calls for a minimal “nightwatchman state.”

ANALYSIS OF THE TOPIC

As you will recall from the Value Debate Handbook, every proposition of value consists of two components:the object(s) of evaluation and the evaluative term. The object(s) of evaluation is what is being evaluated or critiquedin the resolution which makes a judgment, evaluation or critique of the object(s) of evaluation.

This topic contains two objects of evaluation: John Rawls’ Difference Principle and Robert Nozick’s EntitlementTheory. The evaluative term is “justice.” In essence the resolution asks the debater to choose between two verydifferent justice theories. Rawls advocates a system of redistributive taxation; Nozick opposes it. Rawls believes instrong support for public schools in order to equalize opportunity; Nozick thinks that all education should be private.Rawls argues for a government robust enough to equalize opportunity in society; Nozick call for a minimal “nightwatchman” state. Rawls defends government welfare programs; Nozick would like to end all such programs. Thesemany differences will provide ample opportunities for affirmative and negative debaters to construct their cases.

AFFIRMATIVE STRATEGIES

The first affirmative strategy focuses on equality of opportunity as the criterion for justice. Nozick’s EntitlementTheory pretends that successful individuals owe nothing to anyone other than themselves – they own their talent andspirit of entrepreneurship. In reality, successful individuals owe many debts to government, schools, colleges, and tomany other elements of the society of which they are a part. According to Martin McMahon, professor of law at theUniversity of Florida College of Law, many of our wealthiest citizens have acknowledged these debts:

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Warren Buffett, who perennially appears as one of the five richest Americans in the Forbes400 list, has said the following: “I personally think that society is responsible for a very significantpercentage of what I've earned. If you stick me down in the middle of Bangladesh or Peru orsomeplace, you'll find out how much this talent is going to produce in the wrong kind of soil.” WilliamH. Gates, Sr. -- the father of one of the world's richest men and an outspoken opponent of estate taxrepeal -- has articulated the point as well: “Like the ‘great man’ theory of history, our dominant ‘greatman’ theory of wealth creation borders on mythology. Such folklore fills the pages of businessmagazines. In a recent interview, one chief of a global corporation was asked to justify his enormouscompensation package. He responded, ‘I created over $ 300 billion in shareholder value last year, soI deserve to be greatly rewarded.’ The operative word here is ‘I.’ There was no mention of the shareof wealth created by the company's other 180,000 employees. From this sort of thinking, it is a shortdistance to, ‘It's all mine’ and, ‘Government has no business taking any part of it.’” There is noquestion that some people accumulate great wealth through hard work, intelligence, creativity, andsacrifice. Individuals do make a difference, and it is important to recognize individual achievement.Yet it is equally important to acknowledge the influence of other factors, such as luck, privilege, otherpeople's efforts, and society's investment in the creation of individual wealth. (Boston College LawReview, Sept. 2004, pp. 1102-1103)

These debts to society justify a system of redistributive taxation to support public schools, welfare systems,and other elements of the good society. From behind a “veil of ignorance,” individuals would embrace a socialcontract that provides opportunity to all, regardless of race, class, or social position.

The second affirmative strategy begins with the right to life as a criterion for justice. Life is a prerequisite forthe enjoyment of all rights, including the elements of justice. The key problem with Nozick’s Entitlement Theory is thatit improperly elevates property rights over the right to life. Nozick’s theory, if brought to societal prominence, wouldeliminate all welfare systems and destroy the safety net preventing starvation. While it is true that Nozick praisesaltruistic acts, his Entitlement Theory actually creates disincentives for altruistic acts. Altruism, while praiseworthy, isincapable of meeting the level of need. Rawls properly emphasizes justice demand for government to useredistributive taxation to provide a social safety net.

The final affirmative strategy argues that reducing income inequality should be the criterion for a good system ofjustice. Income inequality seriously undermines the quality of American society. Rawls’ Difference Principle directlyaddresses this problem by showing that income difference is acceptable only when it works to the advantage of allmembers of a society. Nozick, on the other hand, gives property owners every reason to ignore income inequality.

NEGATIVE STRATEGIES

The first negative strategy argues that the preservation of liberty should be the criterion for justice.Interestingly, even John Rawls argues for the primacy of liberty by making it his first principle of justice. TheDifference Principle, arising from his second principle of justice, applies only if the first principle has been satisfied.Nozick argues that people have a liberty interest in the products of their own labor. Rawls’ Difference Principle, onthe other hand, redistributes property as if it is unowned.

The second negative strategy endorses property ownership as the criterion for justice. The capitalist systemcan exist only if property ownership is protected. This case argues that Nozick’s Entitlement Theory supportscapitalism and Rawls’ Difference Principle undermines it. Rawls’ “maximin principle” says that we should always actin such a way as to prevent the worst outcome. But capitalism thrives when entrepreneurs are willing to takechances. Entrepreneurship is based on optimism, rather than pessimism. Alan Goldman, professor of philosophy atthe University of Miami, explains the problem with the “maximin principle:”

First, it can be pointed out that in ordinary life we normally do not act in a maximin fashioneven if we are uncertain about the probability of various situations occurring. If it is a nice day andthe chances of rain seem slight, we do not walk around with raincoat and umbrella on the groundsthat the worst possible outcome would be to get caught in the rain without them. Rather we playpercentages to maximize expected utility. (John Rawls’ Theory of Social Justice, 1980, p. 454)

The final case argues that the criterion for justice should be “giving people what they are due” – a justiceapproach based on “just deserts.” Rawls’ Difference Principle calls for a system of redistributive taxation so that whatbelongs to one person can be taken so that it can be given to someone else. Nozick argues that justice is defined by“just acquisition” – whatever a person justly acquired should belong only to that person. Only Nozick’s theory isconsistent with the notion of “just deserts.”

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AFFIRMATIVE CASE #1: RAWLS’ DIFFERENCE PRINCIPLE BEST ENSURES EQUAL

OPPORTUNITY

The thesis of this case is that Rawls’ Difference Principle should be preferred over Nozick’s Entitlement Theorybecause Rawls best ensures equality of opportunity. Equality of opportunity has long been understood as an inalienableright, and, therefore, a key criterion for justice. Nozick incorrectly identifies a strong government as a barrier to wealthcreation. He believes that entrepreneurs accumulate wealth on their own, with no assistance from government orsociety. In reality, robust government action is required if equality of opportunity is to be extended to persons nowsubject to race or class discrimination. Rawls’ Difference Principle, evaluating justice policy from behind a Veil ofIgnorance, best ensures equal opportunity.

OBSERVATIONS:

I. EQUALITY OF OPPORTUNITY IS THE CRITERION FOR JUSTICE.

John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN RAWLS' THEORY OF SOCIALJUSTICE, 1980, 167.

Equality of opportunity is taken as a rule of justice, and deviations from it bear the taint of illegitimacyand unfairness.


Let every individual be assured an equal opportunity with every other individual to gain the goodsand achieve the benefits which society affords. No one must enter the contest under socially-imposedhandicaps. It is society's duty to see that all have an equal position at the starting gate. Then the racegoes to the swiftest, the prize to the most deserving. That way we not only achieve justice among groupsbut also assure social progress. Each can rise as far as his talents and ambition will take him, so nonecan justifiably look with envy at those above. Equal opportunity releases energy, assures progress andinnovation, and treats everyone with equal justice.

Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM URBAN LAW JOURNAL, Spr. 1996,632.

Equality, like liberty, is fundamental to the United States. Before proclaiming the inalienable right toliberty, the Declaration of Independence asserts that "All men are created equal." Indeed, the"radicalism" of the American Revolution, according to Gordon Wood, lies in the revolution's abolition of asystem of privilege, hierarchy, and patronage and the establishment of a political (and social) systembased on equally free and independent men.

CONTENTIONS:

I. NOZICK’S ENTITLEMENT THEORY DENIES EQUALITY OF OPPORTUNITY.

A. NOZICK ARGUES FOR A NIGHT WATCHMAN STATE – A GOVERNMENT THAT WOULD EXIST ONLY

FOR THE PROTECTION OF PROPERTY RIGHTS.

Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLYREVIEW, Summer 1986, 192.

Nozick's State is to have one function only, the protection of property. To protect their property, itscitizens hire a kind of giant security firm. Such an agency will have to be paid. Those with the mostproperty to protect will be able and willing to pay most for the services of the security agency. Thus fromthe outset, the only State institution Nozick permits is inevitably controlled by the wealthy and they canuse it to further their own interests. This was the situation in Western societies up to the end of thenineteenth century. Political power was exercised by the wealthy who promulgated notions such as freeenterprise and liberty while practising protectionist economic policies and suppressing individual rights.


For Nozick any State intervention, except the police function of his 'night watchman' State, is unjust.Any participation by the State in the distribution of property is therefore unjust.

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B. SINCE ONLY MINIMAL GOVERNMENT IS NEEDED, NOZICK ARGUED FOR THE ELIMINATION OF

ALMOST ALL TAXATION.

Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 786.The question is not whether Nozick's theory logically denounces progressive taxation. In fact,

Nozick's theory logically disallows almost all taxation.

Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYU JOURNAL OF LAW & LIBERTY, 2005,936.

Libertarians object to welfare rights as requiring impermissible taxation. Nozick, for example, saysthat “Taxation of earnings from labor is on a par with forced labor.”

C. NOZICK WANTS A GOVERNMENT SO WEAK THAT IT CANNOT ENGAGE IN THE EQUALIZATION OF

RESOURCES.

Ron Replogle, (Prof., Philosophy, New York U.), CANADIAN JOURNAL OF POLITICAL SCIENCE, Mary.1984, 67.

Nozick presents his "entitlement theory of justice in holdings" as a strict implication of the rights-thesis and (what he takes to be) its most plausible explanation. He insists that no genuinely rights-basedtheory of distributive justice condones state action designed to realize some structural profile of holdings.Except where questions arise of compensating individuals for past injustices, he believes that thedisposition of holdings among individuals is a matter of ethical indifference. This is a central plank inNozick's brief for the minimal (nightwatchmen) state. It supports his contention that distributive claimstypically founded on need, merit, equality and so forth, confer no justification on the more-than-minimalstate.

D. ENTITLEMENT THEORY WOULD ABANDON EQUAL RIGHTS LEGISLATION.

Edward Andrew, (Prof., Political Science, Scarborough College of the U. of Toronto), CANADIANJOURNAL OF POLITICAL SCIENCE, Sept. 1985, 548.

Income policies, minimum wage laws, collective bargaining agreements and equal rights legislationare violations of natural justice. if, and only if, individuals have, as Locke and Nozick assert, a privateproperty in their person. For example, if one's ability to labour is private property, alienable at will, awoman should have the right to take a job for half the wages of a man doing the equivalent job. Equalrights legislation would restrict her ability to sell her abilities at the market price, would violate the naturalrights of private property to alienate an asset at will.

E. NOZICK INCORRECTLY ASSUMES THAT WEALTH IS ACCUMULATED WITHOUT ANY ASSISTANCE

FROM GOVERNMENT OR OTHER INDIVIDUALS.

1. Government provision of infrastructure enables the accumulation of wealth.

Martin McMahon, (Prof., Law, U. Florida College of Law), BOSTON COLLEGE LAW REVIEW, Sept. 2004,1101-1102.

The libertarian claim is simply not supportable. In a modern industrialized society everyone benefitsfrom governmental infrastructure. Incomes are not earned solely by one's own efforts. In addition to thehead start most of the wealthy receive by being born into affluence, which alone destroys the baseline forProfessor Nozick's proceduralist argument that everyone starts out equally, everyone's pre-tax income isearned in an infrastructure created by government. Often the benefits conferred on the wealthy bygovernment go beyond mere infrastructure and are subsidies that are in essence the seed money oreven the life-blood of their enterprises. Patents, which are very important in building great wealth, oftenrepresent the privatization of public resources -- ideas that were based largely on publicly fundedresearch. Another public resource, the telecommunications broadcast spectrum, has been madeavailable free of charge to entrepreneurs, as well as to large corporations, and has been a source ofgreat wealth. The bottom line is that "the baseline for determining the benefits of government is thewelfare a person would enjoy if government were entirely absent; the benefit of government servicesmust be understood as the difference between someone's level of welfare in a no-government world andtheir welfare with government in place."

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2. Social interaction plays a key role in wealth accumulation.


Warren Buffett, who perennially appears as one of the five richest Americans in the Forbes 400 list,has said the following: “I personally think that society is responsible for a very significant percentage ofwhat I've earned. If you stick me down in the middle of Bangladesh or Peru or someplace, you'll find outhow much this talent is going to produce in the wrong kind of soil.” William H. Gates, Sr. -- the father ofone of the world's richest men and an outspoken opponent of estate tax repeal -- has articulated thepoint as well: “Like the ‘great man’ theory of history, our dominant ‘great man’ theory of wealth creationborders on mythology. Such folklore fills the pages of business magazines. In a recent interview, onechief of a global corporation was asked to justify his enormous compensation package. He responded, ‘Icreated over $ 300 billion in shareholder value last year, so I deserve to be greatly rewarded.’ Theoperative word here is ‘I.’ There was no mention of the share of wealth created by the company's other180,000 employees. From this sort of thinking, it is a short distance to, ‘It's all mine’ and, ‘Governmenthas no business taking any part of it.’” There is no question that some people accumulate great wealththrough hard work, intelligence, creativity, and sacrifice. Individuals do make a difference, and it isimportant to recognize individual achievement. Yet it is equally important to acknowledge the influence ofother factors, such as luck, privilege, other people's efforts, and society's investment in the creation ofindividual wealth.

3. A strong government is essential to the maintenance of a fair financial marketplace.


Consider the many components of the social framework that enable great wealth to be built in theUnited States. Among them are a patent system, enforceable contracts, open courts, property ownershiprecords, protection against crime and external threats, and public education. Even the stock market is aform of socially created wealth that provides liquidity to enterprises. David Blitzer, the chief investmentstrategist at Standard and Poors, recently wrote, "Financial markets are as much a social contract as isdemocratic government." When faith in this social system is shaken, as it has been by recent breachesof trust, we see how quickly individual wealth evaporates. As this passage so clearly explains, the entireinfrastructure of society, which is funded by taxes, is an absolute prerequisite to the ability to earn themunificent incomes realized by America's richest citizens. Liam Murphy and Thomas Nagel haveelegantly expressed and expanded on these principles in The Myth of Ownership: “There is no marketwithout government and no government without taxes; and what type of market there is depends on lawsand policy decisions that the government must make. In the absence of a legal system supported bytaxes, there couldn't be money, banks, corporations, stock exchanges, patents, or a modern marketeconomy -- none of the institutions that make possible the existence of almost all contemporary forms ofincome and wealth.” This is a proposition with which no one reasonably can argue. Because thisproposition is immutable, the starting point for Professor Nozick's philosophy -- Hobbes' man in a state ofnature -- that leads him and others to find strict moral limits on society's right to levy taxes is socounterfactual that their entire argument vaporizes with no further criticism needed.

F. REDISTRIBUTIVE TAXATION IS NECESSARY TO ENSURE THAT ALL PERSONS HAVE THE

OPPORTUNITIES THAT WEALTHY INDIVIDUALS ALREADY ENJOY.

Sagit Leviner, (J.D. Candidate), VIRGINIA TAX REVIEW, Fall 2006, 419.Unfortunately, as a practical matter, it is usually impossible to determine which person - or even

which resource - produces or deserves what share of the total output. However, once the predispositiontoward the merit of the market distribution is challenged and the need for joint efforts is validated, it iseasier to reach the conclusion that some form of taxation in general and redistribution in particular arenecessary in order to ensure that all members of the society enjoy a fair share of the societal output.

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Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLYREVIEW, Summer 1986, 192-193.

Nozick goes so far as to argue that all taxation is confiscation. He does not explain why peoplecontinue to elect governments who confiscate their income. Perhaps it is because such people havemore imagination than Nozick. They pay taxes which are used to finance income-maintenanceprogrammes because they know there is a risk that they may one day be without incomes due tounemployment, illness or old age. Living in the real world of inequalities and uncertainties rather than inNozick's fantasy world, they are not assured of being able to provide for such contingencies themselves.In many countries redistribution is not from the rich to the poor but among middle-income groups whomay pay high taxes but who receive many benefits in the form of government financed health, educationand housing services. The government policies which Nozick and Friedman regard as confiscatory areoften little more than the pursuit of enlightened self-interest by groups within societies.

II. RAWLS’ DIFFERENCE PRINCIPLE BEST ENSURES EQUALITY OF OPPORTUNITY.

A. RAWLS UNDERSTANDS THAT GOVERNMENT SUPPORT OF EDUCATION IS ESSENTIAL FOR

EQUALITY OF OPPORTUNITY.

Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 63.Rawls takes the position that a "perfectly competitive market" set against the background of just

institutions tends to satisfy the compensatory requirement of the difference principle. Such a marketrewards individuals according to the marginal product of their factors of production, and since theimplementation of fair equality of opportunity policies removes barriers of entry into different jobs andreduces imperfections in the market for loans or subsidies for education and training, there will be astrong tendency for differences in unequal returns to be equalized.

Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 776.One aspect of the equality upon which the bargainers in the original position would insist is equality

of opportunity. By this Rawls means "equal chances of education and culture for persons similarlyendowed and motivated." Thus Rawls reasons that the original position would result in equality ofopportunity limited by "endowment" or natural ability. But inequalities in "endowment" and motivationlead, in a free market, to inequalities in distribution of resources, an effect to which inheritancecontributes. Rawls recognizes that inequalities will evolve and even welcomes some of this resultinginequality. Nevertheless, Rawls believes that too much inequality is inherently bad in its effect on socialinstitutions. Specifically, Rawls states that social institutions that preserve equality of opportunity are "putin jeopardy when inequalities of wealth exceed a certain limit; and political liberty likewise tends to loseits value, and representative government to become such in appearance only."

B. RAWLS PROMOTES A SOCIETY WHERE EQUAL RIGHTS LEGISLATION IS ESSENTIAL TO ENSURE

OPPORTUNITY.

C.M.A. McCauliff, (Prof., Law, Seton Hall U. School of Law), RUTGERS LAW REVIEW, Winter 2010, 393-394.

Distributive justice is not "the public interest" or "the common good," but rather coordinates with suchconceptions because it deals with a sense of fairness in terms of legislation. Eighteenth century liberalslooked for a career open to talent (a meritocratic society). Rawls looked for something more foundational:"promoting the independence and self-respect of equal citizens." Fair equality of opportunity is strikinglyillustrated in American legal history through the civil rights movement after the Second World War. Oncethe Supreme Court decided Brown v. Board of Education in 1954, society's attitudes slowly began tochange. However, equality of opportunity did not advance appreciably until the Civil Rights Act of 1964was first enacted and slowly implemented. The Declaration of Independence recognized that "all menare created equal, endowed by their Creator" and spoke of life, liberty and the pursuit of happiness.According to Rawls's position, legislation such as the Civil Rights Act is necessary to realize the ideals ofthe Declaration. In this way, the Civil Rights Act was designed to ensure not only an abstract, or formal,equality of opportunity, but also the correction of social disadvantage through the prevention ofdiscrimination for a consistently disadvantaged group. The concept of equal educational opportunitiesmeans that people are to be educated to their highest capacity along with others sharing the samecapacity.

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C. RAWLS ARGUES THAT THE STATE MUST BE POWERFUL ENOUGH TO ENSURE THAT THE RULES

OF THE ROAD ARE FAIR TO ALL CITIZENS.

Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 472.Justice as liberal equality is the "road-runner" theory of justice. Its central idea is the "race of life," in

which all the contestants are to have a fair or equal starting point. After that let the cinders fall where theymay. Justice demands equality of opportunity and some ground rules, together with an umpire to enforcethem; but it does not require that everyone reach the finish together. Liberal equality is, in other words,roughly the notion of justice which prevails in America today—for example, we hold elections in which wehope "the best man" will win; we generally hire and pay people on the basis of relevant categories of job-related merit and not extraneous considerations such as religion, smile and personality, or shoe size.

D. RAWLS’ VEIL OF IGNORANCE PROVIDES A PROPER DEVICE FOR PROMOTING EQUALITY OF

OPPORTUNITY.

1. The Veil of Ignorance offers the means to evaluate equal opportunity in matters of race and social class.

Alex Voorhoeve, (Prof., Philosophy, U. North Carolina), GREAT THINKERS A-Z, 2004, 200.To ensure the contract they agree is fair, Rawls places the contracting parties behind 'the veil of

ignorance' so they do not know their sex, race, social class, talents and abilities, nor their specific valuesand aims in life. Behind the veil, the parties have to ask themselves: 'Which distribution of the benefitsand burdens of social co-operation do I want, given the fact that, though I am ignorant of the person I willbe, I will have to be some person in this society?'

2. Behind the Veil of Ignorance, persons would embrace a social contract agreeing to equalize opportunity.

Allen Buchanen, (Prof., Philosophy, U. Minnesota), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980,18.

The idea of a social contract has several advantages. First, it allows us to view the principles ofjustice as the outcome of a rational collective choice. Second, the idea of contractual obligationemphasizes that the persons participating in this collective choice are to make a basic commitment to theprinciples they choose, and that compliance with these principles may be rightly enforced. Third, the ideaof a contract as a voluntary agreement for mutual advantage suggests that the principles of justiceshould be "such as to draw forth the willing cooperation of everyone" in a society, "including those lesswell situated."

Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OFJUSTICE, 1986, 34.

The veil of ignorance means that the parties choosing principles lack certain kinds of knowledge thatmight make the bargaining process unfair.' They do not know what position they hold in society, nor whattheir own particular goals or life-plans might be. They do not know what society they belong to, nor whatgeneration they are. Such particular kinds of knowledge always make it possible for persons to skewprinciples in their own favor. This would clearly not be fair, and so there must be an adequate veil ofignorance to remove such possibilities.

3. The Veil of Ignorance best provides for the impartial application of justice principles.

Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIALCHANGE, 2011, 99-100.

Rational individuals setting the terms of a cooperative society would agree to institute a social safetynet, given that its benefits in bad times would far outweigh its burdens in good times. Rawls provides apartial example, arguing in A Theory of Justice that people without knowledge of their circumstances insociety - under the "veil of ignorance" he imposed so that self-interested bargaining would approximatethe impartiality associated with justice - would be risk averse and adopt principles to protect the leastadvantaged, one of whom they might turn out to be. Rawls thought the contractors would settle on anegalitarian principle by which inequalities can be justified only if they benefit the worst off. It is at leastarguable, however, that, on both precautionary and efficiency grounds, they would prefer to adopt a rightto a social minimum.

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AFFIRMATIVE CASE #2: RAWLS’ DIFFERENCE PRINCIPLE BEST GUARANTEES THE

RIGHT TO LIFE

The thesis of this case is that Rawls’ Difference Principle should be preferred over Nozick’s Entitlement Principlebecause Rawls best ensures the right to life. The clearest reason to reject Nozick’s Entitlement Theory is that it insiststhat government should not help the needy, even if starvation is the result. Such a theory should not qualify as areasonable standard of justice.

OBSERVATIONS:

I. PRESERVING HUMAN LIFE SHOULD BE REGARDED AS THE CRITERION FOR JUSTICE.

A. HUMAN LIFE IS THE PRECONDITION FOR ALL HUMAN VALUES.

Simone Roach, (Ph.D.), THE HUMAN ACT OF CARING, 1992, 23.Human life is the precondition for all values attributed to human persons. Human life has been

referred to as "an almost absolute value in history." The need to protect human life and the morestringent imperative of do not kill are regarded as basic, constitutive elements of the moral life of anysociety. The relationships embodied in and shaped by humans rest on the inviolability of human life. Theinestimable value of human life is based on the consideration that each person has been raised to asublime dignity.

B. THE ABILITY TO SAVE A LIFE CREATES A DEMAND FOR JUSTICE.

David Elkins, (Prof., Law, SMU School of Law), BYU JOURNAL OF PUBLIC LAW, 2007, 293.This Article proposes that the duty to act arises when one individual is in need of some good and

another is able to satisfy that need at a non-prohibitive cost to himself. Imagine, for instance, a deserttraveler who encounters an individual dying of thirst. Assuming that the traveler is carrying with her morethan enough water to meet her own needs, does she have a moral obligation to give the other somewater and thus to save his life? The proposed duty to act suggests that she does have a moral obligationto share her water. Additionally, were she, out of either apathy or maliciousness, to ignore the other'sneeds and do nothing, she would be acting immorally.


Some moral knowledge may be grasped directly rather than derived through reason. We know fromexperience that there is some such knowledge in many domains - knowledge that is so complex orcontextual as to be irreducible to general principles, or so basic that it can only be recognized, notexplained in other terms. Two examples of the latter, claims which Peter Singer thought so self-evidentthat no argument was necessary or even available, are (1) that suffering and death from lack of food,shelter, and medical care are bad, and (2) if it is in our power to prevent something bad from happening,without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it.

C. EVEN LIBERTARIANS BEGIN WITH THE PREMISE THAT EVERYONE HAS A RIGHT TO LIFE.


Let us begin by accepting, as we should, the same core beliefs on which the libertarian objection toredistribution rests: the intrinsic value of leading one's own life, and the self-ownership this implies. Theredistributionist claim here builds on this same foundation, but it asserts that respect for personalautonomy gives rise not only to the liberties that allow one to exercise it, but to certain economic rightsas well. Here is President Franklin Roosevelt's version, from his celebrated 1944 State of the Unionaddress proposing a "Second Bill of Rights" to guarantee economic security: “This Republic had itsbeginning, and grew to its present strength, under the protection of certain inalienable political rights -among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonablesearches and seizures. They were our rights to life and liberty. As our nation has grown in size andstature, however - as our industrial economy expanded -- these political rights proved inadequate toassure us equality in the pursuit of happiness. We have come to a clear realization of the fact that trueindividual freedom cannot exist without economic security and independence. ‘Necessitous men are notfree men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.”

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D. THE DEMANDS OF JUSTICE WILL NOT ALLOW A WEALTHY NATION TO IGNORE STARVATION

AMONG ITS OWN CITIZENS.

Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIALCHANGE, 2011, 101.

I believe that the injustice that gives rise to an economic right is best captured by Rousseau's remarkquoted earlier, that it is unjust "for the few to gorge themselves on superfluities while the starvingmultitude lacks necessities." An economic right that protects against severe deprivation in the midst ofexcess is more morally secure, and partly for that reason, more practically promising, than these otherformulations. The right is best expressed as a priority right, giving the worst-off a claim to resourcesnecessary for subsistence before they can be used by the better-off.

E. A JUST GOVERNMENT HAS AN OBLIGATION TO HELP THOSE WHO CANNOT HELP THEMSELVES.


Unequal opportunity and destitution are not simply the inevitable and unavoidable results ofblameless individual choices, as the libertarian assumes. They may also be traced to the government'sdecision not to alter those foreseeable results (or, what I shall not argue here, its decision to institute andenforce such a system to begin with by classifying essential resources as privately held property ratherthan owned in common or entitlements of citizenship). On this view, justice is not confined to therectification of wrongdoing; a government's decision to ignore desperate hurricane survivors it could helpwould indeed be wrongful and unjust, for example. The libertarian's contrary position depends on anadditional, quite questionable claim: that the concerns of justice exclude the state's failure to act nomatter how dire the consequences or how easy it would be to avert them.

CONTENTIONS:

I. NOZICK’S ENTITLEMENT THEORY FAILS TO PROPERLY VALUE HUMAN LIFE.

A. NOZICK’S THEORY ELEVATES THE RIGHT TO LIFE FOR SOME WHILE IGNORING THIS RIGHT FOR

OTHERS.

Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ONANARCHY, STATE, AND UTOPIA, 1981, 159-160.

In fact, Nozick's overall view begins to appear irrational: how can one hold both that rights arenecessary to protect and guarantee the valuable capacity to live a meaningful life, and that people onlyhave rights to some of the distributable goods which are necessary in order to have any chance of livingmeaningful lives? Of course, it would not be irrational to hold these two views in conjunction if onebelieved, as Nozick presumably does, that one could not succeed in providing sufficient shares of allnecessary distributable goods to all people—that one could only provide sufficient shares of the welfaregoods to some by denying sufficient shares of liberty to the others. But, as I have argued, it is simplyfalse that the restrictions on liberty necessary to guarantee the welfare rights of all would be so severe asto prevent the victims of, say, taxation, from living decent and fulfilling lives. Nor is it any less false thatsuch taxation would prevent them from living meaningful lives. If the meaning of life is our concern, thenstarvation, not taxation, is our worthy foe.

B. NOZICK’S ENTITLEMENT THEORY INVITES INACTIVITY EVEN IN THE FACE OF STARVATION.

Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), NORTHERN ILLINOIS UNIVERSITY LAWREVIEW, Spr. 1998, 345.

The question that comes immediately to mind when one learns of Nozick's absolute opposition toredistribution is whether Nozick is prepared to see people starve to death. Evidently, Nozick is indeedprepared to tolerate starvation if the only alternative is redistribution, but he does not squarely confrontthis issue.

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Theo Papaioannou, (Prof., Politics, The Open University), INTERNATIONAL POLITICAL SCIENCEREVIEW, June 2008, 273.

In Nozick's view, the laissez-faire process distributes resources in accordance with the capacitiesand talents that each individual possesses. From this it follows that, in the state of nature, individualswho possess talents and capacities become private property owners. So, for Nozick no one in the stateof nature is forced by initial inequality of resources not to possess private property. Nozick's argument isnot convincing. If it is true that no one can be the owner of the fruits of his talents and capacities unlessthose have been developed in the relational context of society, then it must be also true that theindividuals who are excluded from the process of original acquisition because they are physicallyincapable of work are likely to starve.


In the Preface to Anarchy, State, and Utopia, Nozick writes that "intellectual honesty demands that,occasionally at least, we go out of our way to confront strong arguments opposed to our views." In hisdiscussion of Rawls, Nozick insists that we "try out principles in hypothetical microsituations." Nozickappears to violate both of these strictures. He goes out of his way to conjure up fantasticalcounterexamples to opposing theories. However, he fails to confront squarely the suffering that plausiblycould exist under his system, as the result of starvation, slavery and horrific debt collection practices.

C. WEALTHY CITIZENS SHOULD FIND IT IN THEIR SELF INTEREST TO ASSIST THE POOR.

Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 269.When some members of society have insufficient means to subsist in a manner consistent with

human dignity, there is a utility loss for all who come into contact with this human suffering. Even such anopponent of redistribution as Charles Murray has observed that "for the sake of my own quality of life, Ido not want to live in a Calcutta with people sleeping in the streets in front of my house." Mickey Kaushas similarly observed that "in many of our major cities, the latter groups -- (criminals and the homeless)-- have all but ruined the enjoyment of communal facilities for the rest of society." The aesthetic disutilityresulting from contact with the poor is more than merely psychological; it results in real economic loss forthe affected communities. Other things being equal, people who have the option to avoid contact withareas in which the symptoms of poverty are pervasive will tend to do so. Similarly, market transactionswill be performed outside blighted communities rather than within them whenever possible. Tourismfalls, businesses fold, and people seek housing in different areas, making the community in questioneven less desirable than before.

Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 270.Another kind of disutility resulting from poverty stems from the possibility that vast disparities in

wealth and income create conditions conducive to crime and rioting. By decreasing disparities, therelatively poor have less of an incentive to risk punishment by resorting to crime and violence. Thisdecrease in incentive would seem to result chiefly from the increased income of the relatively poor, sincethe needs which might motivate a poor person to resort to crime would be alleviated. Perhaps moreimportant, an individual with a minimally adequate income (and the accompanying dignity and socialstatus) has "more to lose" from resorting to crime and violence. It is also possible that a reduction inostentatious displays of wealth, which might occur if overall inequality were reduced, would reduce thesense of outrage and injustice that may motivate some social unrest. In a larger, societal sense, the poormay indeed have "more to gain" by breaking the law when inequalities are vast, if those inequalities bearlittle relation to natural ability.

Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 271.The social costs of crime and rioting extend, of course, far beyond their immediate victims. Law

enforcement costs are involved in quelling violence and catching criminals, as well as social costs in thepunishment of criminals. In addition, the insecurity which such violence elicits exacts both financial andnonfinancial costs on those in the area. Indeed, one cost of crime may be the perpetuation of poverty,since crime in an impoverished area will tend to discourage the very investment that might improveeconomic conditions for residents.

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D. NOZICK’S SUGGESTION THAT WELFARE SHOULD BE A MATTER OF PRIVATE CHARITY, RATHER

THAN GOVERNMENT ACTION, IS UNSATISFYING.

1. Nozick’s Entitlement Theory invites the wealthy to ignore philanthropy and to let the poor suffer.

James Aune, (Prof., Texas A&M U.), SELLING THE FREE MARKET, 2001, 93-94.There is nothing in Nozick's theory that would even encourage philanthropy. In fact, people's respect

for other's rights should positively encourage everyone to bear the consequences of any lack ofentrepreneurial foresight on their part. Otherwise, given the principles of rational choice, some futurefamily might trust to philanthropy for a bailout and thus fail to exercise sufficient caution in expendituresor in procreation.

2. Private philanthropy could never match the level of need.

Thomas Nagel, (Prof., Philosophy, New York U.), READING NOZICK: ESSAYS ON ANARCHY, STATE,AND UTOPIA, 1981, 199-200.

Nozick would reply that such ends can be achieved by voluntary donations rather than bycompulsion, and that people who are well-off and who deplore the existence of poverty should donatesignificant portions of their assets to help those who are unfortunate." But this is no more plausiblecoming from Nozick than it was coming from Barry Goldwater. Most people are not generous whenasked to give voluntarily, and it is unreasonable to ask that they should be. Admittedly there are cases inwhich a person should do something although it would not be right to force him to do it. But here I believethe reverse is true. Sometimes it is proper to force people to do something even though it is not true thatthey should do it without being forced. It is acceptable to compel people to contribute to the support ofthe indigent by automatic taxation, but unreasonable to insist that in the absence of such a system theyought to contribute voluntarily. The latter is an excessively demanding moral position because it requiresvoluntary decisions that are quite difficult to make. Most people will tolerate a universal system ofcompulsory taxation without feeling entitled to complain, whereas they would feel justified in refusing anappeal that they contribute the same amount voluntarily. This is partly due to lack of assurance thatothers would do likewise and fear of relative disadvantage; but it is also a sensible rejection of excessivedemands on the will which can be more irksome than automatic demands on the purse.

3. Private altruism could never replace the role of government in welfare.

Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 275.Altruists may end up paying for more than their "fair share" (and getting the benefit of only a

suboptimal result) as a result of other people's attempts to free-ride. Or, altruists may no longer feel it is"worth it" to contribute, without the assurance that everyone else will contribute as well. They may bewilling to chip in to purchase a comprehensive poverty alleviation program, the argument runs, butunwilling to make a "drop in the bucket" contribution which would make no discernible difference in theoverall poverty condition. Taken together, these "free-rider" considerations make a compelling case forthe government provision of welfare.

II. RAWLS’ DIFFERENCE PRINCIPLE PROPERLY VALUES HUMAN LIFE.

A. RAWLS HOLDS THE WELFARE OF ALL IS PROTECTED WHEN CARE IS GIVEN TO THE LEAST

ADVANTAGED.

Tom Beauchamp, (Prof., Philosophy, Georgetown U.), JOHN RAWLS' THEORY OF SOCIAL JUSTICE,1980, 136.

The difference principle says that social and economic inequalities are to be permitted only if theyare arranged to the greatest benefit of the least advantaged members of society. This principleexpresses Rawls' conviction that the justice of the basic structure is to be gauged by its tendency tocounteract the inequalities caused purely by luck of birth (family and class origins), natural endowment,and historical circumstance (accidents over the course of a lifetime). This conviction helps explain whyRawls refers to his conception of justice as egalitarian. He means that his theory requires society toreduce certain inequalities by pooling advantageous resources for the benefit of everyone, and inparticular the least advantaged. He even points out that "the first problem of justice" is to delineateprinciples of justice that can regulate inequalities and can be used to rearrange the long-lasting effects ofsocial, natural, and historical contingencies. The difference principle rests on the view that becauseinequalities of birth, historical circumstance, and natural endowment are undeserved, society shouldreduce inequalities by selecting its naturally disadvantaged members and redressing their unequalsituation. "The idea," says Rawls, "is to redress the bias of contingencies in the direction of equality."

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B. RAWLS’ DIFFERENCE PRINCIPLE CREATES A SOCIAL OBLIGATION FOR THE WELFARE OF THE

LEAST ADVANTAGED.

Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 57.Rawls views his well-ordered society as a cooperative social union in which everyone who is able is

expected to live up to a social obligation. This view finds expression in the difference principle in itsrequirement that members of the most advantaged stratum must contribute to the common good, which,thanks to the "chain-connectedness" assumption, Rawls interprets as improving the well-being of theleast advantaged segment. The principle is one of "mutual benefit" and those who are better situateddeserve their position only if their productive effort benefits others.

Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 58.In contrast to market principles of distribution, the difference principle "does not weight men's share

in the benefits and burdens of social cooperation according to their social fortune or their luck in thenatural lottery." "No one deserves his greater natural capacity nor merits a more favorable starting placein society" and "the naturally advantaged are not to gain merely because they are more gifted." Instead,those who gain from their good fortune must work to improve the circumstances of those who have lostout, and their greater rewards constitute a kind of compensation for the costs incurred in the fulfillment oftheir social obligation.

Sagit Leviner, (J.D. Candidate), VIRGINIA TAX REVIEW, Fall 2006, 420.Political, economic, and social relationships among individuals are not only a matter of choice but a

condition inherent to the nature of the person. By denying the importance of cooperation to humanexistence we undermine the infrastructure upon which it depends. The joint venture is not merely amechanism of production but, more profoundly, it represents a vision of the person and of civil societywith shared obligations and privileges.


The difference principle asserts that inequalities are justifiable only if they are to the advantage of theworst-off representative man or group. We are to agree to consider the unequal distribution of talentsand abilities among a population as a general social resource which can be arranged to work to theadvantage of all, rather than as a source of strength for some and weakness for others. No one is tobenefit from the contingencies of nature or social position "except in ways that redound to the well-beingof others". In the conception of justice as fairness, people in effect agree to share one another's fate.Reciprocity and mutual benefit must prevail over considerations of social efficiency and technocraticvalues.

17

AFFIRMATIVE CASE #3: RAWLS’ DIFFERENCE PRINCIPLE LIMITS INCOME INEQUALITY

The thesis of this case is that Rawls’ Difference Principle is superior to Nozick’s Entitlement Theory because onlyRawls offers the philosophical underpinnings of a solution to income inequality. Rawls argues that the acquisition ofwealth should always be tempered by caring for the needs of the least advantaged. Nozick argues that owners ofproperty can, if they choose, ignore the needs of the poor since their wealth was justly acquired. Only Rawls offers atheory of justice that will place limits on income inequality.

OBSERVATIONS:

I. NOZICK’S ENTITLEMENT THEORY CLAIMS THAT WEALTHY INDIVIDUALS HAVE NO JUSTICE

RESPONSIBILITY TO THE POOR.

A. NOZICK’S ENTITLEMENT THEORY IS BASED ON HISTORICAL PRINCIPLES.

Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 50.The general outlines of the entitlement theory illuminate the nature and defects of other conceptions

of distributive justice. The entitlement theory of justice in distribution is historical; whether a distribution isjust depends upon how it came about.

Stathis Banakas, (Prof., Law, U. East Anglia), LOUISIANA LAW REVIEW, Summer 2007, 1025-1026.Nozick is led to the conclusion that a fundamental principle of justice is entitlement to just holdings.

Such entitlement for Nozick comes only from an original acquisition, exchange, or gift, and cannot beviolated for the pursuit of any social goal.

Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OFTHE JUST SOCIETY, 1986, 93-94.

Principles of justice, Nozick explains, are most revealingly characterized in terms of considerations ofhistory, of end-states, or of patterns. A historical principle of justice is one which makes the justice of adistribution depend on how it came about. Under such a dispensation a person's past actions andsituation may create differential entitlements or deserts to things. An end-state principle of justice is onewhich makes the justice of a distribution depend on the conformity of a state of affairs to some structureor goal. A patterned principle of justice is one which makes the justice of a distribution depend on somespecific historical factor, some characteristic of individuals such as moral worth, talent orindustriousness. Rawls's Difference Principle is an example of an end-state principle, since it isconcerned only with an overall structural result — that the welfare of the worst-off is maximized.

B. NOZICK ARGUES THAT JUSTICE IS VIOLATED WHEN WEALTHY INDIVIDUALS ARE TAXED IN

ORDER TO ASSIST THE POOR.

Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ONANARCHY, STATE, AND UTOPIA, 1981, 146.

According to the "entitlement conception of justice" which Nozick presents in Anarchy, State, andUtopia, the non-voluntary redistribution of income to achieve "equality of material condition" is morallyimpermissible. In fact, Nozick's argument is even more far-reaching. He believes that any non-voluntaryredistribution of income is morally impermissible. In particular, he believes that it is morally illegitimate forany government to tax some of its citizens in order to provide food, shelter, medical care or socialservices for other, less fortunate citizens.

C. NOZICK’S ENTITLEMENT THEORY CLAIMS THAT JUSTICE SHOULD NEVER BE CONCERNED WITH

INEQUALITY.


The implications of Nozick's theory are startling. Not only does it imply, as he suggests, that taxesare a form of forced labor, but it also sets no "utility floor" or bottom to the plight of those worst off, itrequires no limits on the disparity between rich and poor, and it provides no protections against a declinein overall welfare." Thus, clearly it already stands in tension with utilitarian concerns for maximizingwelfare and with Rawlsian concerns for protecting the disadvantaged. As one critic puts it, "so long asrights are not violated it matters not for [Nozick's] morality. . . how a social system actually works, howindividuals fare under it. . . or what misery or inequalities it produces."

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II. RAWLS’ DIFFERENCE PRINCIPLE OFFERS A PHILOSOPHICAL JUSTIFICATION FOR LIMITING

INEQUALITY.

A. RAWLS PROVIDES THE PHILOSOPHICAL BASIS FOR AMERICA’S MODERN SAFETY NET.

Adam Hunt, (J.D. Candidate), NYU JOURNAL OF LAW & LIBERTY, 2009, 563.Rawls' position is in some ways consonant with a theory of negative liberty - Rawls touts the

importance of freedom from interference, particular in the realm of religious freedom, limited only by the"state's interest in public order and security." But Rawls does envisage legitimate governmentinterference to correct for what he believes to be artificial social and economic contingencies. He harborsno direct hostility towards capitalism, but stresses that rule of law characteristics (and basic civil libertiessuch as freedom of belief) are a floor, rather than a ceiling, for government activity. Thus, Rawls' politicaltheory, and his articulation of distributivist justice, or "justice as fairness," is often credited as offering atheoretical defense of "big government" policies such as welfare and the "rights revolution" of the WarrenCourt.

B. RAWLS HOLDS THAT THE DEMANDS OF JUSTICE REQUIRE CARE FOR THE LEAST ADVANTAGED.

Eugene Borowitz, (Professor of Education and Jewish Religious Thought at Hebrew Union College),JOURNAL OF THE AMERICAN ACADEMY OF RELIGION, Sept. 1976, 508.

If we take the stranger, the orphan, the widow and the poor as Biblical equivalents for "the leastadvantaged" then Rawls' sense of justice is akin to that of the Bible.

III. INCOME INEQUALITY THREATENS THE FABRIC OF AMERICAN SOCIETY.

A. INCOME INEQUALITY THREATENS THE ECONOMIC STABILITY OF THE NATION.

a. Large income disparities were a key cause of the Great Depression.

THE INDEPENDENT, Oct. 18, 2011. Retrieved Nov. 8, 2011 from Nexis.The link between huge income disparities and financial crises is more than just a coincidence. J K

Galbraith, in his definitive work, The Great Crash, 1929, identified "the bad distribution of income" as oneof five factors that contributed to the stock-market plunge and subsequent Great Depression. With moremoney than they know what to do with, the super-rich spend on luxuries and speculative investmentsonly to pull them back sharply when exuberance is exhausted and fear threatens to take over. This sortof economy is more volatile than one that is more broadly based, one in which the 99 per cent holdsmore of the economic power.

b. Large income disparities were a key cause of the Great Recession of 2008.

U.S. Congress Joint Economic Committee Report, INCOME INEQUALITY AND THE GREATRECESSION, Sept. 2010, 5.

Severe income inequality may make the economy more vulnerable to a deep recession. In the caseof the Great Recession, income inequality fueled economic instability in two ways. First, stagnant middle‐class incomes meant increased demand for credit, fueling an unsustainable bubble. Second, the ever‐richer rich amassed increasing sums of money to invest in new financial products. Bank deregulationallowed for the development of exotic financial instruments, and the collapse of this house of cardsinstigated the Great Recession.

c. Large income disparities put the future of the American economy at risk.

U.S. Congress Joint Economic Committee Report, INCOME INEQUALITY AND THE GREATRECESSION, Sept. 2010, 1.

High levels of income inequality may precipitate economic crises. Peaks in income inequalitypreceded both the Great Depression and the Great Recession, suggesting that high levels of incomeinequality may destabilize the economy as a whole.

B. INCOME INEQUALITY THREATENS THE POLITICAL STABILITY OF THE NATION.

John Rawls, (Prof., Philosophy, Harvard U.), quoted in POLICY ANALYSIS, July 14, 2009, 16-17.Very large wealth differentials may make it practically impossible for poor people to be elected to

political office or to have their political views represented. These inequalities of wealth, even if theyincrease the material position of the least advantaged group, may need to be reduced in order [to secure“the fair value of the political liberties”].

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CONTENTIONS:

I. THE HISTORICAL ASSUMPTIONS MADE IN NOZICK’S ENTITLEMENT THEORY ARE FLAWED.

A. NOZICK FALSELY ASSUMES THAT MOST WEALTH IS THE PRODUCT OF HARD WORK AND TALENT.


The actual distribution of rewards in a market economy is justified by Nozick and Friedman on thebasis of a vacuous theory of moral desert. The wealthy deserve their wealth because they have workedfor it. Friedman and Nozick ignore the fact that much wealth was accumulated not by work or theexercise of talent but by force and exploitation. If a person acquires wealth through hard work or theexercise of exceptional ability he may be said to deserve his wealth but can his descendants, howeveruntalented or idle, be said to deserve their inheritance? Property is a social phenomenon, not the naturalphenomenon which Nozick suggests it is, and the form which its ownership and transfer takes isdetermined by the social and legal arrangements of particular States. Nozick and Friedman attempt tojustify as 'natural' the arrangements for the control and transfer of property in advanced capitalistsocieties. Some North American Indians could not understand the European concept of buying landbecause, for the Indians, land was part of the natural environment which for them was indivisible. Thisconcept of land might be regarded as 'natural' yet those who held it could never develop the free marketwhich Nozick and Friedman promote.

B. ACCUMULATION OF WEALTH IS OFTEN MORE A MATTER OF LUCK THAN SKILL.


However equal the starting point, over time income and wealth will flow away from some andtowards others. To some degree, they will flow to the most diligent workers, but mostly they will flow tothe lucky ones - the people who have the greatest physical or mental proficiency, or particular talentsthat happen to be in demand, or investments that pan out. And as their children are afforded educationaladvantages and inherited wealth, the rich will get richer and the poor poorer, some of them to the point oflife-threatening destitution.

C. NOZICK’S NOTION OF JUST ACQUISITION OF PROPERTY DOES NOT DESCRIBE THE REAL

WORLD.

Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, Aug. 2011, 800.Even Nozick acknowledges the prominence of injustice in the real world. No one thinks that current

holdings of property are respectable by the historical standards that he articulates. The pedigrees of allour holdings are contaminated with the cruelest injustice, and when wealthy individuals are beingrequired to support the meager lifestyle of people much less fortunate than them, it is quite unclearwhether they are being required to do so out of resources that are morally theirs or out of ill-gottenresources that are "theirs" only in the shallowest of legal senses.


Many critics suggest that Nozick ignores important aspects of market mechanisms and socialcohesion. Ackerman argues that Nozick's basic rights, such as ownership of property, are absolute onlyin an ideal world, and not in the real world we inhabit. "Nozick's position is dialogically indefensible in aworld deeply scarred by illegitimate domination."

John Stick, (Prof., Law, U. of Southern California Law Center), NORTHWESTERN UNIVERSITY LAWREVIEW, Spr. 1987, 389.

Several commentators have noted that most of the economic resources of the industrialized nationswere at some time acquired by unjust acts. One could argue that for this reason Nozick's first twoprinciples are rendered nugatory, and that the rectification principle is the only principle still of relevanceto our society.


Since the distribution of ownership is simply the accumulated distribution of income, privateownership of the means of production is the result of this coercive distribution of income—i.e., it is theresult of injustice.

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D. NOZICK HIMSELF ADMITTED THAT THE ACTUAL OPERATION OF THE FREE MARKET HAS BEEN

MORE OFTEN UNJUST THAN JUST.

Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, Aug. 2011, 802.Robert Nozick's comments about injustice in the real world are particularly interesting. Nozick was

never prepared to say that the historical-entitlement critique of equality and welfarism in Anarchy, State,and Utopia amounted to a defense of actually existing market institutions, nor would he pretend that thesort of Lockean defense of property he advocated could go any distance towards legitimizingcontemporary disparities of wealth in, for example, the United States. On the contrary, he thought itundeniable that contemporary holdings would be condemned as unjust by any remotely plausibleconception of historical entitlement.

E. HISTORICAL PRINCIPLES OF JUST ACQUISITION ARE UNWORKABLE – WE COULD NEVER GO

BACK TO CORRECT ALL PAST INJUSTICES.

David Lyons, (Prof., Philosophy, U. of Missouri), READING NOZICK: ESSAYS ON ANARCHY, STATE,AND UTOPIA, 1981, 355.

Most Americans take this country's possession of its territory for granted, even though we all knowthat a great deal of its land was wrested by force or fraud from those who occupied it before theEuropeans came—from Native Americans, who were dispossessed and either massacred or subjugated,the survivors displaced from their homelands and in large part consigned to live on shrinkingreservations.

John Stick, (Prof., Law, U. of Southern California Law Center), NORTHWESTERN UNIVERSITY LAWREVIEW, Spr. 1987, 390.

Locke's Proviso is subject to a well-known problem: How can all of the property in an economy beappropriated justly under the Proviso if many people are left without property? As Nozick has noted, thisinfirmity in the acquisition of the last few bits of unappropriated property tends to "zip back" to infectevery prior acquisition of property. If there exists a last bit of property which can be acquired, itsacquisition by anyone makes all other would-be acquirers worse off. This problem threatens to make anyacquisition of property unjust, thereby undermining the entire theory.

Lawrence Davis, (Prof., Philosophy, U. of Missouri), READING NOZICK: ESSAYS ON ANARCHY, STATE,AND UTOPIA, 1981, 351.

We ought to note that, in both its original and its amended forms, the principle of rectification willprobably not help us if we attempt a full-scale rectification of the injustices in our society's past, for werewe to project the 200 years of our country's history in a rectified movie, the cast of characters wouldsurely differ significantly from the existing cast. Had our ancestors lived and moved in a rectified versionof our history, quite likely many of us would not be alive today.

II. RAWLS’ DIFFERENCE PRINCIPLE PRESERVES CAPITALISM BY INFUSING IT WITH JUSTICE

CONCERNS, LIMITING INEQUALITY.

A. RAWLS ENDORSES FREE MARKET CAPITALISM WITHIN REASONABLE LIMITS.


Rawls assumes, that is, that the Difference Principle can be satisfied simply by redistributing incomeand wealth through taxing the better off and transferring the proceeds to the worst off. He assumes, then,that the representative worst off man's prospects of wealth, power, authority, etc. can be maximized byboosting the wages earned on the free market with an income supplement. The idea, roughly, is that themarket will do part of the job of satisfying the Difference Principle and that taxation and income transferswill do the rest. What is crucial to note here is that Rawls believes that his principles of justice could besatisfied in our society without the abolition of competitive markets and the adoption of socialism. Hecontends that justice could be attained without a transition to public ownership of the means ofproduction.

Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 69.Rawls recommends the use of markets because of the advantage of allocative efficiency and

because he feels that comprehensive planning tends to interfere with equal liberties and fair equality ofopportunity, that is, market devices decentralize economic power and enhance free choice of occupation.But there is another, more important reason for Rawls's insistence on markets. And he does insist: "Theideal scheme sketched . . . makes considerable use of market arrangements. It is only in this way, Ibelieve, that the problem of distribution can be handled as a case of pure procedural justice."

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B. CAPITALISM, IN ORDER TO SURVIVE, MUST ADDRESS REASONABLE JUSTICE DEMANDS.

Stathis Banakas, (Prof., Law, U. East Anglia), LOUISIANA LAW REVIEW, Summer 2007, 1040.Whether capitalism is on the path to suicide or survival must still be an open question. If the former, it

will be from self-inflicted wounds. Since there is no alternative to it in sight; since it has shown itselfcapable of adapting to society's values in the past, even if reluctantly and too slowly, it seems to meworth while for all of us to help bring it into line with the values of the 21st century, so enabling it to meritsurvival.

C.M.A. McCauliff, (Prof., Law, Seton Hall U. School of Law), RUTGERS LAW REVIEW, Winter 2010, 396-397.

Society is not "a contract among individuals whose aspirations and identities exist independently" ofsociety. That society would be stamped by the pride of the capitalist, characterized by "selfishness and arefusal to share because possessions are a badge of superiority." While the market allocates land, labor,and capital, it is not the sole criterion or standard for distributive justice: the tax code's incomesupplements, various entitlement programs, and a "fair and equal educational opportunity" combine toprovide economic justice.

C. PROGRESSIVE TAXATION DOES NOT DEPRIVE THE RICH OF SIGNIFICANT LIBERTIES.


Tax rates are relatively predictable; they vary from year to year only within a narrow range. The richin developed countries face no real risk of losing their entire fortunes (to the government, at any rate),and they know it. And one should also not ignore the extent to which welfare-state redistributiveprograms have provided additional security to the poor and the middle class.

Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ONANARCHY, STATE, AND UTOPIA, 1981, 166.

There seems no reason to believe that such measures as highly progressive taxation and limitationson inheritance need deprive anybody of the liberty necessary to live a decent and fulfilling life. Though Ithink them justified, I recognize that these further restrictions on the good of liberty are unwelcome. Thisonly teaches us what we must surely have already known: that in political theory as in life one can'talways enjoy all good things together. All too often we must sacrifice one to save another.

David Hasen, (Prof., Law, U. Michigan), TEXAS LAW REVIEW, Apr. 2007, 1105.In his abbreviated discussion of endowment taxation, Rawls observes: “The difference principle does

not penalize the more able [through endowment taxation] for being fortunately endowed. Rather, it saysthat to benefit still further from that good fortune we must train and educate our endowments and putthem to work in socially useful ways that contribute to the advantages of those who have less.”

D. STATE REGULATION OF THE MARKETPLACE IS ESSENTIAL TO CORRECT FOR PAST INJUSTICE.


As we saw previously, notions such as productivity, contribution, and entitlement only gain theirmeaning from underlying social forces, such as market mechanisms. These mechanisms must beappropriately regulated before it can be decided whether a person's "contribution" or "entitlement" is dulyor unduly appreciated. Only a theory of how justice can be embedded in the basic structure provides ananswer, and this objective guides Rawls' entire theory. If he succeeds in showing that the basic structuredetermines just outcomes, then Nozick has neither an argument against Rawls nor an understanding ofthe primary objective of Rawls' work.

E. RAWLS DEFENDS A FREE MARKET SYSTEM, SO LONG AS IT PROVIDES FOR THOSE WHO ARE

UNABLE TO SUPPORT THEMSELVES.

Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OFTHE JUST SOCIETY, 1986, 58.

In reality Rawls wants to offer a justification of societies not unlike the modern Western democracies.There will be a 'free-enterprise' economy with private ownership of capital and natural resources. Thiswill be regulated by the state, using mostly macro-economic techniques, in order to promote reasonablyfull employment and low inflation. For those who are unable to find work or are otherwise unable tosupport themselves, social security (financed by taxation) will ensure a decent income. In short Rawls isreasonably confident that our structural arrangements are just.

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NEGATIVE CASE #1: NOZICK’S ENTITLEMENT THEORY BEST ENSURES LIBERTY

The thesis of this case is that Nozick’s Entitlement Theory should be preferred over Rawls’ Difference Principlebecause Nozick better ensures the primacy of liberty. Rawls himself establishes a hierarchy of justice criteria with libertyat the top. He says that once equal liberty has been assured, then society should turn to matters of equal opportunityand welfare. This case will show that only Nozick’s Entitlement Theory adequately ensures the preservation of liberty.

OBSERVATIONS:

I. THE PRESERVATION OF LIBERTY IS THE MOST IMPORTANT CRITERION FOR JUSTICE.

A. JOHN LOCK FAMOUSLY DECLARED THAT ALL PERSONS HAVE AN EQUAL RIGHT TO LIBERTY.

Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICALSCIENCE, Dec. 1992, 681.

Locke suggested that originally, in a state of nature, the equal right to liberty would have given all theright privately to appropriate land and other resources from nature for their own use. This was soprovided that the things appropriated were not allowed to spoil, and provided that there were still enoughand as good natural resources left in common for others. However, over time persons' access to enoughand as good would have disappeared. Some men would have legitimately come to own large quantitiesof land and other resources, leaving others in a position in which they would have to labour for owners toprovide themselves with the necessaries and conveniences of life. This could have happened, Locke'sframework suggests, without any violation of the equal liberty principle.

B. THE RIGHT TO LIBERTY WAS ADOPTED AS A BEDROCK PRINCIPLE OF JUSTICE IN THE U.S.

DECLARATION OF INDEPENDENCE.


The Declaration of Independence proclaims that we have an "unalienable" right to liberty. Althoughliberty has many meanings, the most common, traditional meaning in America is freedom from coercion.Liberty in this popular sense is a negative liberty because it means freedom from intentional restraints (orcoercion) by others - exemplified by our constitutional rights to freedom of speech and assembly, andprotection against warrantless searches. Negative liberty is inextricably connected to private property,the free market, and principles of economic efficiency. Because negative liberty requires that a person beable to use his body, and by extension that property over which he gains control, free from theconstraints of others, it requires a system of private property which assigns complete (or almostcomplete) ownership to individuals. Without such individual ownership, a person's use and enjoyment ofproperty would be contingent on another's will. Moreover, private property is the most efficient way ofassuring the fullest development of the self - the goal of liberty - because the individual can bestdetermine his own interests.

C. EVEN JOHN RAWLS ACCEPTS THE PREMISE THAT THE RIGHT TO LIBERTY IS PRIOR TO ALL

OTHER JUSTICE CONSIDERATIONS.

John Rawls, (Prof., Philosophy, Harvard U.), A THEORY OF JUSTICE, 1971, 61.These principles [referring to his two “principles of justice”] are to be arranged in a serial order with

the first principle prior to the second. This ordering means that a departure from the institutions of equalliberty required by the first principle cannot be justified by, or compensated for, by greater social andeconomic advantages.

Andrew Kernohan, (Prof., Philosophy, Dalhousie U., Halifax), CANADIAN JOURNAL OF PHILOSOPHY,Mar. 1990, 21.

As is well known, Rawls defends two principles of justice. The first principle, the guarantee of equalbasic liberties, takes precedence over the second, the difference principle. The claim about collectiveownership arises in the context of a defense of the second principle, and the onus on such a defense isnot to contradict the lexically prior guarantee of basic liberties.

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Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OFTHE JUST SOCIETY, 1986, 57-58.

[In Rawls’ Theory of Justice] the original principle becomes three, and again these are ranked in thefollowing order of importance: (1) The principle of greatest equal liberty; (2) The principle of fair equalityof opportunity; (3) The principle of difference. What these principles enjoin is given by replacing 'therelevant class of social primary goods' for 'all social primary goods' in the formulation given above. Theimportant point here is the ranking of principles. Rawls assigns them a 'lexical order', which is the ordergiven above, meaning that a prior principle is to be fully complied with before later ones are considered.What we have, then, is priority (absolute priority) ascribed to liberty over equality of opportunity andthese in turn over welfare.


Since the Second Principle of Justice contains two distinct principles —the Difference Principle andthe Principle of Fair Equality of Opportunity—there are three principles of justice in all.' Having advancedthese three principles, Rawls offers two priority rules for ordering these three principles. The need forpriority rules arises because efforts to satisfy one principle of justice may conflict with efforts to satisfyanother. The first priority rule states that the First Principle of Justice, the Principle of Greatest EqualLiberty, is lexically prior to the Second Principle as a whole, which includes both the Difference Principleand the Principle of Fair Equality of Opportunity.

II. THE KEY DIFFERENCE BETWEEN RAWLS AND NOZICK CENTERS ON THE QUESTION OF WHETHER A

JUST GOVERNMENT CAN USE TAXATION FOR THE PURPOSE OF INCOME REDISTRIBUTION.

A. RAWLS’ DIFFERENCE PRINCIPLE HOLDS THAT TAXATION CAN JUSTLY BE USED TO

REDISTRIBUTE INCOME.


Under Rawls' theory, the role of taxation is to maintain a just distribution of income in two respects.First, taxation has a non-revenue raising function: "gradually and continually to correct the distribution ofwealth and to prevent concentrations of power detrimental to the fair value of political liberty and fairequality of opportunity." Since unequal inheritances endanger both political liberty and equal opportunity,inheritance taxes are appropriate. Rawls notes that unequal inheritance of wealth is "no more inherentlyunjust than the unequal inheritance of intelligence." What is important for both is that any or eitherinequality meet his difference principle: the inequality is allowable if it helps the least well-off and doesnot encroach upon liberty and opportunity. Inherited wealth must be redistributed because inheritancerestricts liberty by creating centers of power that devalue representative government and restrictopportunity by limiting access to equal education and cultural growth.

B. NOZICK’S ENTITLEMENT THEORY HOLDS THAT TAXATION CAN NEVER JUSTLY BE USED TO

REDISTRIBUTE INCOME.

Pulin Nayak, (Prof., Economics, Delhi School of Economics), ECONOMIC AND POLITICAL WEEKLY, Jan.28, 1989, PE-1.

Robert Nozick's Anarchy, State, and Utopia, which appeared in 1974, is today regarded as areference point for all contemporary works on libertarian political philosophy. The central idea in the bookis Nozick's espousal of what he calls the "minimal state", a notion long associated with the seventeenthcentury English philosopher John Locke. The minimal state, according to Nozick, "limited to the narrowfunctions of protection against force, theft, fraud, enforcement of contract and so on, is justified; that anymore extensive state will violate persons' rights not to be forced to do certain things, and is unjustified;and that the minimal state is inspiring as well as right." In particular, in Nozick's world, the state isforbidden to play a redistributive role.

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CONTENTIONS:

I. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IS A VIOLATION OF LIBERTY.

A. LIBERTY DEMANDS THAT PEOPLE SHOULD HAVE A RIGHT TO THE PRODUCTS OF THEIR OWN

LABOR AND TALENTS.

Andrew Kernohan, (Prof., Philosophy, Dalhousie U., Halifax), CANADIAN JOURNAL OF PHILOSOPHY,Mar. 1990, 22.

Freedom of the person would require, first off, a set of rights to protect a person's body frominterference by other people and by the state. But no meaningful account of freedom of the person couldstop here. Persons are more than just their bodies; persons do things with their bodies. A meaningfulnotion of personal freedom must also protect the capacities of persons to make use of themselves. Inother words, it must also give some protection to their talents and abilities. At a minimum, a notion offreedom of the person would have to include: (1) The right of persons to remain in possession of theirbodies, their body parts and their talents and abilities. (2) The right of persons to use their bodies andtalents as they see fit, provided they do not interfere with the rights of others. (3) The right of persons todecide who else may utilize their bodies and talents, and how and under what conditions this may bedone. These three rights by no means provide a complete articulation of the notion of personal freedom,but any such notion would include all three of these rights.

Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAXPOLICY, Fall 1995, 256-257.

A truly fair system is one that preserves what an individual has, rather than takes it from him.Furthermore, the identification of a certain group within the community as not paying its fair share dividesthe community and belies the Rawlsian notion of the possibility of a social contract between reasonable,similarly motivated persons. It undermines Rawls' very concept of the primacy of the individual. It also"hollows out" the individual. If all his traits are not his, but belong to the collectivity, what is left of theindividual, whose primary moral status was the motivation for the theory of justice in the first place? If thehigh income earners are to be singled out and made to pay, the question is why is it fair for someindividuals in a society to pay at higher rates, or to pay more taxes? Certainly, we would not consider itfair, in the sense of just, to single out a racial, ethnic, or religious group, or a particular gender, forharsher treatment under our laws. We would not deny them liberties or benefits accorded others. To theextent they are being denied, we would support and even fight for their equal enjoyment of those rights.Why, then, ought we feel comfortable in depriving one individual of more of what he has earned thananother individual? Why is it fair to criticize a class of society publicly for not doing their fair share whenthey have paid more than others?

B. TAXATION FOR THE PURPOSE OF REDISTRIBUTION AMOUNTS TO FORCED LABOR.

Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 65.Taxation of earnings from labor is on a par with forced labor. Some persons find this claim obviously

true: taking the earnings of n hours labor is like taking n hours from the person; it is like forcing theperson to work n hours for another's purpose. Others find the claim absurd. But even these, if they objectto forced labor, would oppose forcing unemployed hippies to work for the benefit of the needy. And theyalso would object to forcing each person to work five extra hours each week for the benefit of the needy.But a system that takes five hours' wages in taxes does not seem to them like one that forces someoneto work five hours, since it offers the forcee a wider range of choice in activities than does taxation in kindwith the particular labor specified.


Putting the objection most strongly, the libertarian philosopher Robert Nozick famously wrote thatredistributive taxation is "on a par with forced labor." For staunch libertarians, taking some of the fruits ofyour labor so someone else can eat is no different in principle than extracting one of your kidneys sosomeone else can live: each destroys self-ownership by appropriating your body for another's benefit.Rights to one's property and to freedom of contract are the legal instruments that reflect and protect themoral entitlements to keep, sell or donate the fruits of our own labor, as we wish.

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C. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IMPAIRS MARKET FREEDOM.

Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OFTHE JUST SOCIETY, 1986, 93.

The rejection of any state more powerful than the night-watchman variety is implicit in the rightsNozick ascribes to individuals. More particularly, it is a simple corollary of the acceptance of those rightsas foundational to any politically relevant morality that any conception of justice which prescribesredistribution of wealth or proscribes certain activities (like the amassing of great personal wealth) mustbe rejected. For the state to employ such practices it must continuously violate people's rights; it must,for example, prohibit capitalist acts between consenting adults.

D. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IS REALLY JUST THEFT OF PROPERTY.

Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAXPOLICY, Fall 1995, 259-260.

Suppose you are sitting in your home and a stranger breaks in and removes, under threat, valuableassets belonging to you or your family. The police come, return your property, and arrest the intruder. Heargues at his trial that he was a member of the lower middle class, you were upper middle class, and hewanted to even things up. In addition to the destabilizing political implications of his defense, manypersons would be deeply troubled by the unfairness of his being able to take what he had not earnedfrom someone else who had earned it. If there are many such persons in the community and they bandtogether to authorize democratically elected officials to take the same property, under color of law, this isdescribed as high income earners paying their fair share. Some of us may be misled by this use oflanguage and the intermediation of the state and its agents to believe that the fair thing has been done.The high income earner who does not wish to participate in this taking will have no recourse. Byinterposing the state, those who earn less can take away from those who have earned more. They cando this without regard to who contributed more of value to the society as a whole. In effect, the majorityof the society, through democratic, majoritarian processes, approves a system where some are requiredto work more for the common good than others.

E. TAXATION FOR THE PURPOSE OF REDISTRIBUTION VIOLATES RAWLS’ OWN STANDARD OF

LIBERTY.

Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 477-478.The difficulty into which Rawls' analysis has led him can be seen very well if we raise the question

whether Rawls' own democratic equality can satisfy his "demand of justice." We can state his underlyingprinciple as follows: inequalities in the distribution of goods which derive from "natural endowment oreffort" chance) are not deserved and therefore not just. Rawls' principle of democratic equality while notdirectly rewarding these chance or arbitrary factors, nonetheless, preserves, rather than nullifies,inequalities based on these undeserved inequalities. It allows inequalities which benefit the leastadvantaged, that is, those inequalities which are productive of more goods and from which the leastadvantaged benefit by getting some share. Rawls ties the differential reward to the differential socialcontribution, but what is it after all which allows the more favored to make their greater contributions?Surely, it is the very natural endowment and effort which Rawls has thrown overboard as morally otioseprizes in the natural and social lottery. To reward the greater contribution is in fact to reward theundeserved bases of those contributions, and thus to violate the demand of justice. Democratic equality,therefore, does not qualify as a principle of justice.

Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 480."Justice as fairness" then, whatever line of argument we follow, neither supplies us with justice nor

with fairness. Although his theory is surely an elegant attempt to generate a normative account of justicewithout departing fundamentally from a skepticism about the good or about "values" in general, it is justas surely a failure as a theory of justice. Instead of engaging that problem, Rawls' demand of justicemerely directs him down a side-road which leads away from it.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 432.Rawls' claim that an unequal distribution of economic goods is justified only if it is to the advantage

of society's worst-off individuals conflicts with property rights and economic freedoms stressed bylibertarians. The picture a libertarian draws of Rawlsian society is that of a society which constantlyequalizes by taking from those who have earned what they have acquired through free contracts andexchanges, and gives this wealth to those who probably do not deserve it.

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NEGATIVE CASE #2: NOZICK BEST PROVIDES FOR THE BLESSINGS OF CAPITALISM

The thesis of this case is that the Entitlement Theory of Robert Nozick should be preferred over Rawls’ DifferencePrinciple because Nozick better provides the philosophical underpinnings of capitalism and free markets. John Lockeand other major philosophers have established the protection of property rights as a primary component of justice. Thedefense of free markets offers the best way to ensure prosperity for all economic layers in society.

OBSERVATIONS:

I. THE CRITERION FOR JUSTICE IS THE PROTECTION OF PROPERTY.

A. JUSTICE DEMANDS THAT PEOPLE HAVE A RIGHT TO THEIR OWN LABOR.

Murray Rothbard, (Former Prof., Economics, Brooklyn Polytechnic Institute), JUSTICE AND PROPERTYRIGHTS, Jan. 25, 2010. Retrieved Dec. 6, 2012 from http://mises.org/daily/4047.

I can only outline what I consider to be the correct theory of justice in property rights. This theory hastwo fundamental premises: (1) the absolute property right of each individual in his own person, his ownbody; this may be called the right of self-ownership; and (2) the absolute right in material property of theperson who first finds an unused material resource and then in some way occupies or transforms thatresource by the use of his personal energy. This might be called the homestead principle — the case inwhich someone, in the phrase of John Locke, has "mixed his labour" with an unused resource.

B. SELF-OWNERSHIP IS A BEDROCK PRINCIPLE OF JUSTICE.

John Locke, (English Philosopher), quoted in SOCIAL CONTRACT, 1948, p. 17.[E]very man has a property in his own person. This nobody has any right to but himself. The labour

of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes outof the state that nature hath provided and left it in, he hath mixed his labour with it, and joined to itsomething that is his own, and thereby makes it his property. It being by him removed from the commonstate nature placed it in, it hath by this labour something annexed to it that excludes the common right ofother men.

II. PROTECTION OF PROPERTY IS KEY TO THE OPERATION OF CAPITALISM.

Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 66.Capitalism also requires people to be allowed to retain the resources they earn and create. If you

exert yourself and invest for the long term, but someone else appropriates most of the profit, the oddsare that you’ll give up. Protection of ownership lies at the very heart of a capitalist economy. Ownershipmeans not only that people are entitled to the fruits of their labors, but also that they are free to use theirresources without having to ask the authorities first. Capitalism allows people to explore the economicfrontier for themselves.

Tibor Machan, (Staff), THE FREEMAN, June 1993. Retrieved Dec. 6, 2012 from http://www.fee.org/the_freeman/detail/in-defense-of-property-rights-and-capitalism/.

To understand the nature of free trade, one must note first of all that it is logically dependent on theprinciple of the right to private property. One cannot trade if one does not own anything.

Tibor Machan, (Staff), THE FREEMAN, June 1993. Retrieved Dec. 6, 2012 from http://www.fee.org/the_freeman/detail/in-defense-of-property-rights-and-capitalism/.

Freedom of trade presupposes property rights. If no such rights exist, then there is no need for oropportunity to trade. People could just take from others what they want and would not need to wait foragreement on terms. Or, alternatively, if everyone owned everything, no one could ever trade.Everyone’s permission would be required for every transaction.

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CONTENTIONS:

I. ROBERT NOZICK’S ENTITLEMENT THEORY PROVIDES THE PHILOSOPHICAL UNDERPINNING FOR

CAPITALISM.

A. NOZICK PRESERVES THE PROPERTY RIGHTS ESSENTIAL TO CAPITALISM.

Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICALSCIENCE, Dec. 1992, 677-678.

For Nozick, this libertarian principle must operate as an overriding moral imperative which demandsthat people be treated as the final arbiters of their own desires/value-preferences/interests. It is on thebasis of this principle that he holds that individuals have created for themselves private and exclusiveentitlements to certain properties in land and other means of production. The dictates of liberty requirethat they be left free to dispose of these properties as they will, without regard for wider socio-economicconcerns. As such, for Nozick, inviolable capitalist property rights are a necessary corollary of the freesociety.


Nozick gives the most explicit support for a capitalist market exchange system based on the right ofprivate property. Indeed, he indicates that he believes contemporary capitalist societies do not violate theprinciples of justice in exchange that he offers. Whatever distribution of goods occurs within an economyis just, so long as it is the consequence of proper market exchanges. There is no sense of any limitsnecessary to protect the poor.

B. ENTITLEMENT THEORY PRESERVES THE CORE OF THE FREE MARKETPLACE.


At the heart of Nozick's blueprint for a full capitalist ownership of the means of production is histheory of entitlement. The two principal components of his theory of entitlement are (i) the theory ofjustice in acquisition, and (ii) the theory of justice in transfer. There is a third component, called theprinciple of rectification, which plays, conceptually, a rather minor role. Nozick spells out the followingground rules which form the operational basis for his notion of justice in holdings: (1) A person whoacquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. (2) Aperson who acquires a holding in accordance with the principle of justice in transfer, from someone elseentitled to the holding, is entitled to the holding. (3) No one is entitled to a holding except by (repeated)applications of 1 and 2.


Crucial to Nozick's principle of justice in transfer is the presumption that if individuals, with theirendowments, have engaged in voluntary trade then the resulting distributions must be fair if the originaldistribution was fair. Nozick, for example, has observed: “An entitlement theorist would find acceptablewhatever distribution resulted from the party's voluntary exchanges."

II. RAWLS’ DIFFERENCE PRINCIPLE UNDERMINES CAPITALISM.

A. THE DIFFERENCE PRINCIPLE INTERFERES WITH FREE MARKET EXCHANGES.


This approach to justice puts individual liberty and choice in a primary position over any claims forequality of holdings. Indeed, one of Nozick's strongest criticisms of "patterned principles" such as Rawls'difference principle is that they inevitably involve violations of freedom of choice. Since they forcearrangements that redistribute the goods that people have chosen to give or exchange, they violate thefundamental Kantian principle of respect for people's autonomy of choice.

B. RAWLS’ VEIL OF IGNORANCE UNDERMINES ANY CONCEPT OF PROPERTY OWNERSHIP.

Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 95.For people meeting together behind a veil of ignorance to decide who gets what, knowing nothing

about any special entitlements people may have, will treat anything to be distributed as manna fromheaven."

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C. RAWLS’ MAXIMIN PRINCIPLE IS THE ANTITHESIS OF FREE MARKET ENTREPRENEURSHIP.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 456.Adoption of the maximin strategy by Rawls' contractors out of self-interest appears only

contemptible, abnormally cautious and lacking in spirit. To quote one critic on this point: Rawlsian man inthe original position is finally a strikingly lugubrious creature: unwilling to enter a situation that promisessuccess because it also promises failure, unwilling to risk winning because he feels doomed to losing,ready for the worst because he cannot imagine the best, content with security and the knowledge he willbe no worse off than anyone else because he dares not risk freedom and the possibility that he will bebetter off—all under the guise of `rationality.'

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 455.For the libertarian, who values freedom above all else and generally takes an optimistic view of the

prospects for those willing to take reasonable risks in the face of uncertainty, Rawls' contractors willappear obsessed with security and extremely pessimistic in acting as if their futures were to bedetermined by their enemies. Given full knowledge of the risks involved, one who is willing to take suchrisks for the chance of better life prospects cannot be condemned as irrational. Indeed we generallycondemn those who fail to seize opportunities to better themselves for fear of the risks involved. And yetRawls makes the adoption of a maximin strategy in the face of uncertainty of the original position part ofthe definition of rationality itself.

D. RAWLS’ THEORY OF REDISTRIBUTIVE JUSTICE UNDERMINES THE MOST PRODUCTIVE MEMBERS

OF SOCIETY.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 437.There is foremost the problem of desert: we naturally feel that those who make greater efforts in a

socially productive way deserve to receive a greater share of the social product to which they contribute.And this seems a basic, if not the basic distributive consideration. Rawls it seems has conflated theconcept of distributive justice at the base level into that of equality alone. As one critic points out, Rawls'principle appears more egalitarian than even Marx's (as summarized in the slogan: "From eachaccording to his ability; to each according to his need.") While Marx recognized differences arising fromneed, and required each to contribute to the social product up to the maximum of his ability, Rawlsrefuses to accord a central place in his theory to differential needs and is willing to maximize benefits tothe worst off, likely to be the least productive, without demanding maximal effort or contribution relative toability from them.

III. CAPITALISM IS AN ECONOMIC THEORY THAT HAS GIVEN FREEDOM AND MATERIAL PROSPERITY TO

HUNDREDS OF MILLIONS OF PEOPLE AROUND THE GLOBE.

A. CAPITALISM BENEFITS ALL MEMBERS OF SOCIETY.

Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICALSCIENCE, Dec. 1992, 686.

For Nozick, the market system, prompted by large and unequal ownership, has provided largeincreases in material well-being to the benefit of all in capitalist society. No one is worse off than theywould be if Locke's proviso still held. Thus, capitalist property rights do not violate the intent behind thisproviso.

Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 64.What makes the difference is whether the environment permits and encourages ideas and work, or

instead puts obstacles in their way. That depends on whether people are free to explore their way ahead,to won property, to invest for the long term, to conclude private agreements, and to trade with others. Inshort, it depends on whether or not the countries have capitalism. In the affluent world we have hadcapitalism in one form or another for a couple of centuries. That is how the coutnries of the West becamethe affluent world. Capitalism has given people both the liberty and the incentive to create, produce, andtrade, thereby generating prosperity.

B. CAPITALISM BEST ENSURES LIBERTY.

Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 65.Capitalism means that no one is subject to arbitrary coercion by others. Because we have the option

of simply refraining from signing a contract or doing a business deal if we prefer some other solution, theonly way of getting rich in a free market is by giving people something they want, something they will payfor of their own free will. Both parties to a free exchange have to feel that they benefit from it; otherwise,there won’t be any deal.

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NEGATIVE CASE #3: JUSTICE MEANS GIVING PEOPLE WHAT THEY ARE DUE

The thesis of this case is that Robert Nozick’s Entitlement Theory is superior to Rawls’ Difference Principle becauseit promises to give to people what they are due. The most widely accepted definition of “justice” calls for “just deserts” –meaning that people should be given what they deserve. Nozick argues that people are entitled to the products of theirown labor and creative talents. A proper understanding of justice would not require that property be taken from itsrightful owner and be given to someone else. Rawls’ Difference Principle improperly treats an individual’s property as ifit were “manna from heaven,” to be redistributed at the whims of the state.

OBSERVATIONS:

I. THE CRITERION FOR JUSTICE IS “JUST DESERTS” – PEOPLE SHOULD BE GIVEN WHAT THEY ARE DUE.

A. “JUSTICE,” BY DEFINITION, MEANS TO GIVE PEOPLE WHAT THEY ARE DUE.

BLACK’S LAW DICTIONARY, 2ND

EDITION, 2009. Retrieved Dec. 5, 2012 from http://thelawdictionary.org/justice-n/.

Justice: The constant and perpetual disposition to render every man his due.

B. MOST MORAL PHILOSOPHERS SET “JUST DESERTS” AS THE CRITERION FOR JUSTICE.


Perhaps the single word most closely linked to the general meaning of "justice" in recent moralphilosophy is "desert." According to many writings on justice, one has acted justly towards a personwhen that person has been given what he is due or owed, and therefore has been given what hedeserves or can legitimately claim.' If a person deserves to be awarded a law degree, for example,justice has been done when that person receives the degree. What persons deserve or can legitimatelyclaim is said to be based on certain morally relevant properties they possess, such as being productiveor being in need. It is said to be wrong, as a matter of justice, to burden or to reward someone if theperson does not possess the relevant property.

Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 752.Most writers have agreed with the platonic conception that justice is giving a person his due. There is

far less agreement about what is due a person and how it is determined, but it is understood that theidea of desert is somehow central. So far as justice is concerned, a person is due no less and no morethan he deserves. Thus, one path toward an understanding of justice is to inquire about desert, and, ifdesert is not treated simply as a synonym for justice, it furnishes a test of results reached in other ways.

Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 787.The complete idea of justice, in which both entitlement and desert are present, is thus the analogue

of natural moral order. We saw in section III above that the idea of desert supposes a background forone's actions that is orderly not only causally but morally as well; a person's individual situation must beroughly as he deserves. That is no less true in the portion of our experience determined not by causallaws of nature but by the positive law (and other rules) of the community.

II. PEOPLE SHOULD NEVER BE USED MERELY AS A MEANS TO AN END.

Joseph Grcic, (Prof., Philosophy, Indiana State U.), EQUALITY AND LIBERTY: ANALYZING RAWLS ANDNOZICK, 1991, 12.

To clarify the meaning of the categorical imperative, Kant offers an additional formulation of it. In thisalternative form, it reads: 'Act so that you treat humanity, whether in your person or in that of another,always as an end and never as a means only. This version is based on the understanding of a moral ruleas binding only rational beings, and to be consistent, a rational being must always treat every otherrational being the same way he treats himself. It is Kant's conviction that each rational being recognizeshimself as having an absolute worth or 'dignity' as an end, not merely a means for which he can be used.Hence, no principle of conduct can be universally prescriptive on all persons as rational beings whichtreats others merely as means.

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CONTENTIONS:

I. NOZICK’S ENTITLEMENT THEORY BEST MEETS THE “JUST DESERTS” STANDARD.

A. ENTITLEMENT, IN NOZICK’S THEORY, GIVES PEOPLE WHAT THEY DESERVE.


In contrast to such patterned principles, says Nozick, "historical principles of justice hold that pastcircumstances or actions of people can create differential entitlements or differential deserts to things.Hence, his is an "entitlement" theory. Justice is determined not by the pattern of the final outcome ofdistribution, but by whether "entitlements" are honored.

Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 782.We are now able to see how entitlement and desert are united in the complete idea of justice. If an

entitlement is also deserved, the claim of justice is at its strongest and ordinary usage allows us toemploy the two terms interchangeably, according to which aspect of the claim we want to emphasize.

B. NOZICK AFFIRMS THAT PEOPLE HAVE A RIGHT TO REAP THE REWARDS OF THEIR HARD WORK

AND TALENT.

Teneille Brown, (Prof., Law, U. of Utah), THE JOHN MARSHALL LAW SCHOOL REVIEW OFINTELLECTUAL PROPERTY LAW, 2010, 716.

According to Nozick's theory of justice, we ought not penalize someone who earned a sizableincome based upon her market forces and talent. In his writing, he employs the example of basketballstar Wilt Chamberlain, asking whether it would be just to take away Wilt's ridiculously large NBA incomeand redistribute it to those less well off. While it might seem unfair to pay Wilt $ 1M for playing ball whileothers starve, Nozick reminds us that Wilt has a talent that was compensated for by a competitivemarket. Instead of redistributing goods based on who could benefit the most on the margin, Nozickargues that justice should affirm individual rights to property.

Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 783.Patterned distributions are unjust in Nozick's view because they do not give people the right to

choose what to do with their holdings. Thus, in addition to a "state of nature" rule that says I am entitledto whatever I get my hands on, the theory of entitlement rests on a notion of private property rights thatincludes the right to do whatever I want with my holdings. One thing I might want to do with my holdingsis give them away. Perhaps I wish to give a small portion of my holdings to Yo Yo Ma to hear him playhis cello. Perhaps a large number of people do the same thing and, as a result, Yo Yo Ma becomeswealthy. If we say that the Maestro is not entitled to all of the wealth he might accumulate, we mustrecognize that we are limiting the freedom of others to give it to him. We are not recognizing their rightsto do as they wish with their holdings.

II. RAWLS’ DIFFERENCE PRINCIPLE FAILS TO MEET THE “JUST DESERTS” STANDARD.

A. THE VEIL OF IGNORANCE CONSCIOUSLY IGNORES “JUST DESERTS” – IT INSISTS THAT

RESOURCES BE DIVIDED WITHOUT KNOWING WHOSE HARD WORK PRODUCED THOSE

RESOURCES.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 448.Can we expect the best choice of rules which govern our lives to be made in a condition of

ignorance? As we will see, this forces the contractors not only to be fair, but paranoid as well. In totalignorance, one might pessimistically guard against the worst possibilities as Rawls argues. But whyshould such a psychology guide the choice of rules of justice? Even if we do conceive of rules of justiceas those chosen according to an artificial model of fairness, Rawls' general model of the original positionseems no more intuitively compelling than other possible models for impartiality and fairness.

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In Rawls's early formulations of his "second principle" he is careful to stress that departures from thekind of equality that his first principle is supposed to provide for must be to everyone's advantage. Andthe "everyone" referred to there must be every real person--not everyone who happens to haveabsolutely no idea who he (or she) is, what his (or her) talents are, or anything else of the kind thatenables real people to make decisions in the world they live in. This much must be obvious. Since it is,however, Nozick's point now takes on devastating force. How, we must ask, is it "to the advantage" ofthe clever, the talented, the energetic, and so on, to be saddled with the burden of seeing to it that the"worst off" people in society are "as well off as possible"?

B. RAWLS REWARDS THOSE WHO DO NOT WORK HARD.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 434.One striking feature of the Difference Principle to which some on the right have objected is its

neglect of the notion of desert (as a result of effort or productivity). The concept of desert is in fact absentthroughout the ground level of Rawls' theory, although it may seem to some readers the central notionbehind our intuitions regarding distributions.' Is it fair for one person to have more than another justbecause he was lucky enough to have been born with more intelligence and ambition? Rawls seems tosay no. But, libertarians ask whether it is fair to take something away from a person who has workedhard for it and give it to someone who couldn't or wouldn't produce it himself? Obviously not, accordingto the libertarian.

Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 440.Let us take first a simple two-person case. Person A works hard and is smart, while person B is

dumb and likes to sleep a lot. Should things be arranged so that B gets the maximum benefit from anyjoint project up to the point of equality, or the point at which A gives up working in disgust at seeing thedifference between his work and its reward?

Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAXPOLICY, Fall 1995, 261.

Suppose one individual works overtime and does work of such quality that he typically receivesbonuses as well. Another individual employed in the same job works only the prescribed number ofhours and does so at the minimum tolerable level of quality. From a traditional liberal standpoint, thereseems no principle of fairness that would justify punishing the competent, hard-working contributor to thecommunity by imposing a lesser burden on the slothful, sloppy employee. Yet that is precisely what isdone by differentiated rates of taxation.

Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAXPOLICY, Fall 1995, 256.

Rawls' theory of justice, despite the inventiveness of his original position, is simply a restatement ofthe prevalent modern, neoliberal view of the ideal democratic society. It elevates the bureaucratic stateand its dependent constituents over the interests of self-sustaining individuals. It detaches an individualfrom responsibility for his own success and failure. It refuses to seek at least a partial explanation for thefailures of certain persons in their own shortcomings. It presumes that certain enlightened persons canresolve inherent differences in persons so that, ideally, we all plug along at about the same income-earning level.

III. RAWLS’ DIFFERENCE PRINCIPLE USES PEOPLE MERELY AS A MEANS TO AN END.

A. RESOURCES ARE NOT “MANNA FROM HEAVEN” – RAWLS TAKES WHAT BELONGS TO ONE

PERSON TO BENEFIT ANOTHER.


Just as utilitarianism appears to permit the sacrifice of some for the sake of others, so does thedifference principle: those at the top may receive benefits only if those at the bottom do so as well.Nozick's criticism is the most biting here. First, he argues that goods are not "manna from heaven" butproducts of a productive process. Nozick argues that precisely because the "utility surplus" that can becreated through special incentives involves additional effort on the part of some, they are entitled to partof that utility surplus. The surplus cannot simply be distributed as though no one deserved any part of it.The difference principle, which looks only at relative levels of income rather than at contribution to theproductive process, appears to ignore these important questions.

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B. RAWLS VIOLATES HIS OWN JUSTICE STANDARD BY TAKING FROM SOME PERSONS IN ORDER TO

“PROVIDE A NET BALANCE OF SATISFACTION FOR ALL.”


That justice should be better for all is not just some sort of noble but unattainable ideal. It is apractical idea which animates our ordinary dealings with each other all the time. This is well recognizedby Rawls himself when he says, for example, that "[i]t may be expedient but it is not just that someshould have less in order that others may prosper" and that "no one has reason to acquiesce in anenduring loss for himself in order to bring about a greater net balance of satisfaction [for all]." I don'tknow whether Rawlsians have noticed this, but 40% of my income for my entire working life looks quite alot like an "enduring loss." And you have to misread the first quote in a way that biases the idea towardthe worse-off if you think that what is wrong is only that those with not very much should be required tocontribute to the wealth of those with a lot more. An unbiased, impartial principle, by contrast, wouldsimply say that no one may be compelled to have less in order that anyone else should have more (ascompared with what he otherwise would have had). In short, the Rawlsian paradigm, as we may now callit, is an impossible mess on the face of it and flatly inconsistent with its own premises.

C. RAWLS VIOLATES KANT’S CATEGORICAL IMPERATIVE BY TREATING PEOPLE AS MERELY A

MEANS TO AN END.

C. Edwin Baker, (Prof., Law, U. of Pennsylvania), UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Apr.1985, 896.

In the first critique, Sandel argues that the theory of the person to which Rawls is committed isinconsistent with Rawls' difference principle. The difference principle requires that basic societalinstitutions maximize the position of the worst off. Sandel claims that if the moral subject is an individual,then the difference principle will involve the conscription of some people's talents in order to benefit theworst off; the difference principle thereby treats those subjects as means. Only a group or communitysubject could both choose the difference principle and, since each person's talents would belong to thislarger subject, avoid treating the moral subject as a means. Thus, the Rawlsian theory of the moralsubject as an individuated person is inadequate to support his theory of the right.


Second, Nozick proposes that we imagine the best-off saying to the worst-off, "Look, you gain fromthis cooperative venture; therefore, we will participate only if we get as much as possible." If these termsseem "outrageous," suggests Nozick, then surely the difference principle is also outrageous, for this isexactly what it requires, in reverse. In short, the difference principle appears to violate a Kantian normand to use some people as means to others' ends. The fact that it uses those better off to help thoseworse off does not make it any more "just" than a utilitarian scheme that uses the worse-off to benefit thebetter-off.

D. NOZICK INSISTS THAT PEOPLE NOT BE TREATED MERELY AS A MEANS TO AN END.


Nozick takes a Kantian view that "individuals are ends and not merely means." Individuals are endsin themselves, possessed of certain "natural' rights. This means that there are constraints ("sideconstraints") on action: no actions are permitted that violate fundamental human rights. Thus, for Nozick,a limited set of near absolute rights constitutes the foundation of morality.

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Index to Evidence & Evidence

I. Rawls’ Difference Principle should be preferred over Nozick’sEntitlement Theory.

A. Rawls supports equality of opportunity. (1-3)B. Wealthy individuals owe their success to others as well as

themselves. (4-5)C. The Veil of Ignorance is a proper device for selecting justice

standards. (6-8)D. Nozick’s theory pays too little attention to equality of

opportunity. (9-10)E. Nozick seeks a minimal, “night watchman” state. (11-12)F. Nozick over-estimates the importance of property. (13-17)G. Rawls is not opposed to capitalism. (18-19)H. Property rights should not be absolute. (20-30)I. Nozick cannot reasonably assume that property acquisition in the

past is just. (31-38)

II. Nozick’s Entitlement Theory should be preferred over Rawls’Difference Principle.

A. Taxation amounts to forced labor. (39-40)B. Just acquisition is the most important principle of justice. (41-44)C. Nozick supports capitalism. (45-48)D. The Maximin Principle should not be the guide to justice. (49-

50)E. The Veil of Ignorance is not a sound basis for selecting justice

principles. (51-53)

Evidence

1. Anupam Chandler, (Prof., Law, U. California at Davis School of Law),U.C. DAVIS LAW REVIEW, Mar. 2007, 567-568. Where Nozick'sforemost value is liberty, which he sees as freedom from the state,Rawls's theory seeks to structure a more egalitarian society, requiringmore direct state involvement. Political institutions must always seek toimprove the lot of the worst off in society; their success or failure hangson how well they achieve this goal. This is Rawls's central disagreementwith Nozick, who would have political institutions protect private propertyand free contract, with minimal redistribution.

2. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHNRAWLS' THEORY OF SOCIAL JUSTICE, 1980, 173. For Rawls, then,equality comes first. Goods are to be distributed equally unless it can beshown that an unequal distribution is to the advantage of the leastadvantaged. Furthermore, redress for the disadvantaged has a priorclaim on the social conscience and on social policy over anyconsiderations of efficiency or progress. That too is entailed in justice asfairness.

3. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHNRAWLS' THEORY OF SOCIAL JUSTICE, 1980, 172. Justice as fairnesssets the claim for equality above all other claims save that of liberty;and, as we have seen "equal liberty," while formally prior to thedifference principle, in the end requires for its implementation a fargreater measure of social and economic equality than is presently thecase. Rawls does not discuss liberty and equality within the familiarliberal framework which promptly sets them against each other asclashing and nearly incompatible principles. He sees the two as mutuallyenabling, and he stands as far as possible from the view which sees themoral life as, to use Weber's expression, the battlefield of "warringgods." Moreover, he is utterly unwilling to see equality as just oneamong many values, none of which has priority over the others.

4. John Stick, (Prof., Law, U. of Southern California Law Center),NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 384. Afterall, different societies will place different values on different talents,skills, and characteristics. Neither Bruce Springsteen nor Magic Johnsonwould have been so wealthy if he had been born in seventeenth-centuryJapan. Magic Johnson may partially deserve his ability to playbasketball, given his efforts to acquire the skill. But he did not at alldeserve to be born into a country where basketball is a popular sport,nor to be born in a country where the private broadcasting systemgreatly enhances the monetary value of his talents. (In a society withpublic, non-advertiser-financed broadcasting, such as Great Britain ageneration ago, Magic Johnson's income would have been quite a bitlower.) He might now be entitled to the fruits of his labors, but that is all.

5. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 63. Individuals do notsimply create and exchange goods. "All property is acquired underconditions which the acquirer has not himself created." Nozick ignoresthe extent to which all transactions are protected and promoted by thecommunity—and hence, the extent to which the community has a"partial right to private property which it claims, for instance, in the formof taxes." Taxes are not "forced labor" but rather a recognition of thecommunity's contribution to and proper share of the earnings of theindividual. In sum, these critics claim that Nozick's proposal for justholdings arising from freedom of choice is not realistic. Nozick ignoressome of the complexities of modern society that make his simple normsof commutative exchange inadequate.

6. James Aune, (Prof., Speech Communication, Texas A&M U.),SELLING THE FREE MARKET, 2001, 91. In Rawls's A Theory ofJustice (1971), he asks the reader to imagine that a "veil of ignorance"has descended upon people who have to make a decision about thepolitical ordering of their society. They must decide how goods andrights will be distributed, but they know nothing about their ownendowments (intellectual or property) beforehand. Rawls contends thata reasonable person would arrange a society in such a way as to ensurethat the least-well-off person is benefited, so long as everyone else isnot made worse off.

7. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW,Aug. 2011, 792. Rawls's theory is a good paradigm to work with, and ithas contributed to the study of justice a number of ideas that have moregeneral application. One of them is the contractarian idea of the originalposition: the idea that it might be fruitful to approach questions of justiceby imagining people making decisions about important structuralaspects of their society or about important political and legal principlesthat they were to be committed to from behind a veil of ignorance, inwhich they prescinded from all knowledge of their own particulars thatmight give them an idea of how such arrangements would impact ontheir own well-being. So, for example, people might be required toimagine considering arrangements about racial discrimination withoutknowing what race they belonged to or arrangements about the state'srelation to religion without knowing what religion they belonged to.

8. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW,Aug. 2011, 796. Rawls's own view is that any individual behind the veilof ignorance choosing principles to govern the basic structure of societyin which the individual was to live would insist on a principle thatensured social and economic inequalities were regulated to theadvantage, in the first instance, of the least well-off group. This is theRawlsian Difference principle. (As we have seen, that principle is notitself supposed to determine what anyone is entitled to, but it would notbe surprising if it commanded the institution of something like a modernsystem of tax and transfer.)

9. Robert Nozick, (Prof., Philosophy, Harvard U.), ANARCHY, STATE,AND UTOPIA, 1974, 233. The entitlement conception of justice inholdings makes no presumption in favor of equality, or any other overallend state or patterning. It cannot merely be assumed that equality mustbe built into any theory of justice. There is a surprising dearth ofarguments for equality capable of coming to grips with theconsiderations that underlie a nonglobal and nonpatterned conception ofjustice in holdings.

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10. Robert Nozick, (Prof., Philosophy, Harvard U.), ANARCHY, STATE,AND UTOPIA, 1974, 235. Equality of opportunity has seemed to manywriters to be the minimal egalitarian goal, questionable (if at all) only forbeing too weak. (Many writers also have seen how the existence of thefamily prevents fully achieving this goal.) There are two ways to attemptto provide such equality: by directly worsening the situations of thosemore favored with opportunity, or by improving the situation of thoseless well-favored. The latter requires the use of resources, and so it tooinvolves worsening the situation of some: those from whom holdings aretaken in order to improve the situation of others. But holdings to whichthese people are entitled may not be seized, even to provide equality ofopportunity for others. In the absence of magic wands, the remainingmeans toward equality of opportunity is convincing persons each tochoose to devote some of their holdings to achieving it.

11. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology),STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 185.Nozick's book is a forceful statement of the theory of the 'night-watchman' State. Nozick argues that the State should limit its functionsto 'protecting its citizens against violence, theft and fraud and to theenforcement of contracts and so on'. He does not specify what 'and soon' might cover.

12. Pulin Nayak, (Prof., Economics, Delhi School ofEconomics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989,PE-1. Why is the state, even a minimal one, needed at all? Surely thereare some individual rights and liberties that are delimited by even thenarrowest conception of the state? Why, in other words, does Nozick notadvocate anarchy, a stateless world, if he is really concerned withmaximising the domain of individual rights? The answer lies in the factthat any social state characterised by scarcity of resources, as all real-world situations are, coupled with unlimited wants by its members wouldnecessarily end up with conflicts arising among individuals or groups.

13. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 56. Private ownershipis the key assumption here. One of the few "positive" rights that Nozickpermits as a fundamental human right is the right to acquire and transferproperty.

14. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 60. Moreover,property rights entail limitations on freedom. Liberals, suggest Cohen,"see the freedom which is intrinsic to capitalism, but they do not noticethe unfreedom which necessarily accompanies it."" There are two"freedoms" which might be associated with property: the freedom to ownit, and the freedom to use it. "Freedom to buy and sell belongs tocapitalism's inmost nature. Other freedoms do not. . . ." Thus, arguesCohen, my freedom to own property is always accompanied bylimitations on others' freedom to use that property. Hence, privateproperty distributes freedom and unfreedom." My "positive." right to ownproperty, therefore, is bought only at the price of interference withothers' freedom to use it.

15. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIALRESEARCH, Spr. 1976, 182. Robert Nozick, like Robert Filmer, alwaysomits from consideration the person who does the ordinary work ofproduction. For Nozick, the product belongs to the entrepreneur whobought the materials and bought the labor, and he has an unlimited rightto do whatever he pleases with it. To Robert Filmer, if a child issuesfrom a man's sperm, he has absolute rights over it, and to RobertNozick, if a product issues from a man's capital, he has absolute rightsover it. But why should anyone accept such a view? As Locke keepssaying with such irony of tone, does Sir Robert's merely saying so giveus any reason to accept it? There are alternative views of propertyrights. Professor A. M. Honore of Oxford has said of Nozick's discussionthat "it rests on the morally questionable view that a person is entitled tokeep exclusively and indefinitely for himself whatever he makes orproduces." For Nozick, all goods come into the world "already attachedto people having entitlements over them . . . things

16. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIALRESEARCH, Spr. 1976, 183-184. Even if one would agree with Nozickthat government should stay out of the business of redistribution, thereis no reason to suppose that the issues of distribution itself need bearranged in the way he suggests. If economic arrangements weredeveloped independently of law and governmental enforcement, theymight reflect entirely different conceptions of economic rights than thoseNozick propounds. Nozick's metaphors for property are all land andphysical-object metaphors: he speaks of a "1/4 acre," a "property-volume," etc. But these are hardly adequate to conceive of the rights ofconglomerate enterprises or of persons in regard to them in developedcapitalist economies. As C. B. Macpherson writes, in the twentiethcentury "property is again being seen," as it was in precapitalistconceptions, "as a right to a revenue or an income, rather than as rightsin specific material things." The property of investors is not so muchownership of a part of the corporation's physical plant as it is a "right to arevenue from the ability of the corporation to maneuver profitably. . ."And we are now surrounded by new forms of property, such as rights toold-age pensions, unemployment insurance, welfare benefits, andjobs—rights "to access to the means of labour"—all distinct from earliercapitalist property rights to exclude others from one's use of materialthings.

17. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIALRESEARCH, Spr. 1976, 187. Or again, imagine the following: A family isstarving; the mother happens by chance to discover some fruit treesgrowing wild on common land. She picks the fruit, which then is hers.She sells it and keeps the proceeds. Her husband and children die ofhunger but she has enough money to go into the fruit-growing businessand to build a monument to her cat. Nozick's requirements for justicehave been met.

18. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 121. Although theutilitarians, Rawls, and Nozick hold very different basic theories ofjustice, in practice they all support forms of capitalist "free market"exchange and private property.

19. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 120. Rawls, too,appears to defend democratic capitalism. Although he argues that hisprinciples of justice are compatible with both capitalist and socialisteconomic systems, basic acceptance of capitalism is assured. So longas the least advantaged are thought to "benefit" from the market system,no injustice has been done. On what is dubbed the "trickle down" theory,benefits to those at the top in a capitalist economy are always thought to"trickle down" to some benefits for those at the bottom. By Rawls'theory, this makes capitalism basically a just economy.

20. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 327-328. Traditionally critics of the more-than-minimal (welfare) state havecharged that "meddling" by the government to bring about or maintain afairer distribution of resources involves tampering with the rights ofprivate property. At a time when rights of private ownership wereaccorded a supreme value, this was regarded as a pretty goodargument against distributive programs—but the days when privateproperty rights were held sacrosanct are past. An argument whichpegged everything on a prior commitment to the rights of privateproperty would, on its own merits, not (I think) be very telling. Certainlysuch an argument would not accomplish what Nozick feels his argumentdoes—the demonstration that all other conceptions of justice must berejected in favor of the entitlement theory.

21. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 331.Where my rights in something I have come to hold do not include theright to sell or exchange it, then preventing me from doing so hardlyconstitutes a restriction of my liberty. If a book belonging to one of mycolleagues inadvertently falls into my hands, I am not "free" to sell it (orgive it away) to one of my students, but this lack of freedom does notamount to a restriction of my liberty since I have not the right to sell it;similarly, if the university I work for provides me with a car for a triprequired by my professional duties, it is not a restriction of my personalliberty that I cannot immediately sell it to the nearest car dealer (though Ido have rights to, say, the use of the car.

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22. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 339.Now previously we have seen Nozick invoke personal liberty as thedecisive ground for rejecting patterned principles of justice andrestrictions on the ownership of capital (arguments here that suchpolicies may maximize general well-being he considers irrelevant). Butwhere the rights of private property admittedly restrict the liberties of theaverage person, he seems perfectly willing to trade off such libertiesagainst material gain for the society as a whole. Why is liberty accordeda primary importance in one case and not in the other? Why should thefreedom to dispose of one's property be of such great concern, while thefreedom to use, walk on, look at common property can be dispensedwith in the interest of the general welfare?

23. Eric Blumenson, (J.D. Candidate), UNIVERSITY OFPENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011,89. The libertarian objection to redistribution is not self-evident andsuffers from two weaknesses. It (1) overstates the liberties that respectfor autonomy demands, and (2) shortchanges distributive justicebecause its vision of justice is almost exclusively procedural.

24. Eric Blumenson, (J.D. Candidate), UNIVERSITY OFPENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011,90. We can fully subscribe to the libertarian thesis of individualsovereignty - and should, because each person indeed does havecertain fundamental interests that must be immune from stateinterference and under his exclusive control - but that does not commitus to the view that these fundamental interests include total ownershipand control over every object one has acquired or produced. Each of ushas a realm of sovereignty over our life, mind and body that is virtuallyabsolute, a moral right that prohibits the state from deciding how longwe may live, what we may read, and whether one of our kidneys shouldbe confiscated to save another's life. But it is also obvious that thisindividual sovereignty does not afford us a moral right to do anything wewant; it doesn't license me to go through a red light, pollute a river thatflows through my land, deny shelter to someone in emergencyconditions or fail to feed my child. The point of these examples is thatthe sovereign rights to self-ownership and self-governance are not self-applying. We must first determine the realm to which they properlyapply. That step is missing in the libertarian argument that one's right toself-ownership necessarily entails a right to retain all the fruits of one'slabor.

25. John Stick, (Prof., Law, U. of Southern California Law Center),NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 381.Nozick may mean merely that a scheme of laws that attempts topreserve a partially egalitarian society will infringe upon liberty byrestricting the use of property and by redistributively taxing. But if this isall that Nozick is claiming, his argument that liberty disrupts patternsdissolves into his very implausible argument that redistributive taxationis theft, plus his bare assertion that his theory of property rights iscorrect. Therefore, any theory of property which, like Rawls', is differentfrom Nozick's must constrain liberty. Nozick has no argument againstRawls other than whatever argument he can make directly in justificationof his own theory of property. However, Nozick gives no positiveargument for his theory of property other than describing it andassuming its intuitive appeal.

26. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.),NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 340.Nozick does not tell us the origin of the stringent rights on which herelies; he admits in his preface that he "does not present a precisetheory of the moral basis of individual rights." The closest Nozick comesto a statement of the origin of rights is a brief and vague passage inwhich he suggests that constraints against ill-treatment are "connectedwith that elusive and difficult notion: the meaning of life."

27. Thomas Nagel, (Prof., Philosophy, New York U.), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 196.The fact is, however, that Nozick's moral intuitions seem wrong even ona small scale. He denies that any of the rights he detects may beoverridden merely to do good or prevent evil. But even if it is notpermissible to murder or maim an innocent person to promote somehighly desirable result, the protected rights do not all have the samedegree of importance. The things one is supposed to be protectedagainst are, in order of gravity; killing, injury, pain, physical force,deprivation of liberty of many different kinds (movement, association,and activity), destruction of one's property, taking of one's property; orthe threat of any of the above (with all their variations in gravity). It is farless plausible to maintain that taking some of an innocent man'sproperty is an impermissible means for the prevention of a serious evil,than it is to maintain that killing him is impermissible. These rights varyin importance and some are not absolute even in the state of nature.

28. Thomas Nagel, (Prof., Philosophy, New York U.), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 197. Itis not clear how Nozick thinks individual rights derive from the fact thateach person's life is the only one he has. He appears to draw theimplication that a benefit to one or more persons can never outweigh acost borne by someone else. This, however, is far too broad a claim forNozick's purposes. It is both obviously false and unsuitable as a basisfor constraints on the treatment of individuals.

29. Thomas Nagel, (Prof., Philosophy, New York U.), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 199.There is no reason to think that either in personal life or in society theforce of every right will be absolute or nearly absolute, i.e., nevercapable of being overridden by consequential considerations. Rights notto be deliberately killed, injured, tormented, or imprisoned are verypowerful and limit the pursuit of any goal. More limited restrictions ofliberty of action, restrictions on the use of property, restrictions oncontracts, are simply less serious and > therefore provide less powerfulconstraints.

30. Thomas Nagel, (Prof., Philosophy, New York U.), READINGNOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 199.Moreover, there is a big difference between suddenly expropriating halfof someone's savings and attaching monetary conditions in advance toactivities, expenditures, and earnings—the usual form of taxation. Thelatter is a much less brutal assault upon the person." Whether this kindof limitation of individual liberty should be permitted, to acquireresources for the promotion of desirable ends, is a function of the gravityof the violation and the desirability of the ends.

31. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology),STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 191. Thefundamental aspect of the market to which all Friedman's argumentspoint, but which he never acknowledges, is that the distribution of therewards it produces is often arbitrary and unjust and cannot be alteredexcept through government intervention. Friedman argues for example,that the goods which are produced are the goods which people 'want'.He ignores the fact that, as Mishan argues, people can be made to wantalmost anything which is produced. Many people make fortunesproducing intrinsically harmful goods such as tobacco.

32. Alexander Kaufman, (Prof., Political Science, U. Georgia), POLITY,July 2004, 560. Nozick views historically established entitlements asunrevisable facts regarding the distributive requirements of justice.Nozick's approach therefore insulates historically established rights-claims from reevaluation and revision. Rawls's approach, in contrast,critically evaluates elements of the political tradition, including rights-claims deriving from practices within that tradition. Claims of entitlement,like all other claims grounded in the political tradition, must satisfy astringent standard of justification.

33. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW,Aug. 2011, 800. In actual fact, no one has been assigned an initiallyequal share of resources, nor have most people had an opportunity toinsure themselves in a fair market against lack of talent, disability, orvarious forms of bad luck. They are stuck in the real world, cursed with aheritage of what almost anyone would have to describe as injustice, andthat is the world in which they suffer unemployment, deprivation, andinsecurity, in which their children go hungry, and in which they have tomake whatever appalling choices are left open to them.

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34. John Stick, (Prof., Law, U. of Southern California Law Center),NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 378.Historical principles are principles that identify individual entitlements.An entitlement is always dependent upon some set of rules which setsits terms. Under Nozick's theory of property, I am entitled to myproperty if I acquired it according to the rules of just acquisition and justtransfer -- which are rudimentary rules of property and contract. Thequestion remains how to draft the rules that establish the entitlements.The standards governing the drafting of these rules will always befundamental in Nozick's sense. Perhaps Nozick is claiming that thestandards used for drafting the rules that set up the scheme ofentitlements need not be end-result standards. But given the dichotomyhe has set up, he is forced to define a theory that is fundamentallyhistorical. And whatever else they may be, the standards used fordrafting the property rules cannot be historical in Nozick's sense.

35. John Stick, (Prof., Law, U. of Southern California Law Center),NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 388.Nozick calls his theory of property an entitlement theory. The core ideais that once people have justly acquired property, it rightfully can betaken from them only with their consent. A full entitlement theory ofproperty, for Nozick, consists of a principle that describes howpreviously unowned property can be justly acquired, a principle thatdescribes how property can be justly transferred (only by consensualtransactions), and a principle of rectification that describes how thingsare set right if either of the first two principles are violated. Nozick doesnot assess the justice of the current distribution of property by looking atthe pattern of its distribution, as Rawls does when he looks at themagnitude of the inequality between rich and poor. Instead, Nozicklooks at the history of how each individual came to own his or her share.If the first two principles of just acquisition and transfer were not violatedduring this history, the ownership is just, no matter what distributionalpatterns arise.

36. Pulin Nayak, (Prof., Economics, Delhi School ofEconomics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989,PE-4. One of the root causes of underdevelopment of colonial countriesis the outflow of surplus from it to the imperial master country. Themechanism of surplus extraction from the satellites into the metropoliswas often crude and coercive: it involved outright loot and plunder. Butmore often than not, the relatively subtler process of exploitation viaunequal exchange was much more devastating.

37. Stephen O’Hanlon, (Prof., Philosophy, Temple U.), CARDOZOPUBLIC LAW, POLICY, AND ETHICS, Fall 2009, 57. Given the likelyimperfections associated with such a system, it may be morallynecessary to provide all individuals with at least sustenance andopportunity, which are not guaranteed in Nozick's minimal state. This isbecause there are likely injustices that have occurred, that have notbeen recognized, as well as inadequate compensations that may havehad effects not just on individuals, but even on large groups andpotentially all of society. The implication is that, given an undevelopedand likely imperfect system of rectification that is needed to legitimizeacquisition, transfer, and holdings, it is unwarranted to allow (perhapsmany) individuals to go unnourished and uneducated just becausegenerally strong conclusions have been made regarding historicalentitlement without fully legitimizing the very principles on whichentitlement is founded.

38. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIALRESEARCH, Spr. 1976, 187. Nozick's principles imply that if a man inthe year 1500 had acquired a small sum of money from discoveringsome precious stones in unoccupied land, and if this money has beenincreased through investment and has been legitimately handed downfrom generation to generation so that an American child is borninheriting from it a billion dollars in personal property, that property is histo dispose of entirely as he sees fit. Another child born next to him at thesame time to extreme poverty and deprivation of all kinds has no rightsat all to have any of that billion shared with him. Nozick doesacknowledge that if there had been an injustice in the acquisition andtransfer, back there somewhere, this should be rectified, but thisproblem of knowledge, unlike some others, does not seem to himsevere, and does not seem to him to weaken his historical (hysterical?)theory of justice.

39. Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS,Autumn 1973, 66. The man who chooses to work longer to gain anincome more than sufficient for his basic needs prefers some extragoods or services to the leisure and activities he could perform duringthe possible nonworking hours; whereas the man who chooses not towork the extra time prefers the leisure activities to the extra goods orservices he could acquire by working more. Given this, if it would beillegitimate for a tax system to seize some of a man's leisure (forcedlabor) for the purpose of serving the needy, how can it be legitimate fora tax system to seize some of a man's goods for that purpose? Whyshould we treat the man whose happiness requires certain materialgoods or services differently from the man whose preferences anddesires make such goods unnecessary for his happiness? Why shouldthe man who prefers seeing a movie (and who has to earn money for aticket) be open to the required call to aid the needy, while the personwho prefers looking at a sunset (and hence need earn no extra money)is not? Indeed, isn't it surprising that redistributionists choose to ignorethe man whose pleasures are so easily attainable without extra labor,while adding yet another burden to the poor unfortunate who must workfor his pleasures? If anything, one would have expected the reverse.

40. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.),NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 341.Nozick subscribes to what he calls the "classical liberal" view that theright of people to control their own bodies and actions is a property right,the right of self-ownership. He claims that a redistributive systeminvades that right, making others "a part-owner of you . . .giv[ing] them aproperty right in you." A redistributive system, according to Nozick,institutes partial "ownership by others of people and their actions andlabor." In a similar vein, Nozick argues that taxation of labor income is"on a par with forced labor."

41. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAWREVIEW, Fall 1995, 784. Nozick's theory does not start with a premisethat holdings should be equal, only that they should be acquired in justways. From this focus on just acquisition, there is nothing troublingabout the outcome of an argument that does not have equality (orincreased equality) as a goal.

42. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAWREVIEW, Fall 1995, 785. Nozick challenges Rawls's theory because it isan "end-result principle." A patterned end-result principle is one thatlooks around at the actual distribution at some point in time andpronounces it just or unjust without regard to how it came to be that way.In other words, the pattern, rather than the history of the distribution, iswhat matters. The problem is that, as noted above, no acceptable end-result pattern would be a stable one if people are allowed to makechoices about the disposition of their property. Rawls, of course,recognizes this instability and advocates taxes that would reduce thelevel of inequality even if that inequality develops legitimately. UnderNozick's theory, on the other hand, people are entitled to their naturalassets. In addition, provided there is no injustice in the transfer oracquisition of holdings, people are entitled to the resulting holdings,however unequal. Nozick's purpose for probing this subject is todetermine whether there is a justification for a state "more extensivethan the minimal state" based on distributive justice. Essentially, Nozickgenerally finds no moral justification for redistribution to support morethan the most minimal state.

43. Joseph Bankman, (Prof., Law, U. Southern California), CALIFORNIALAW REVIEW, Dec. 1987, 1916. Under entitlement theories and certainother nonwelfarist theories, an individual has a right to a goodregardless of whether her ownership of the good is consistent with thewelfare of others or even with her own welfare. For example, accordingto Nozick, a person who acquires a good in a just manner would have aright to the good even if it were of little or no value to her and ofenormous value to others.

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44. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAMURBAN LAW JOURNAL, Spr. 1996, 621. Robert Nozick's Anarchy,State, and Utopia exemplifies the conservative libertarian philosophywhich underlies the fiscal exchange theory of tax. Nozick's theory ofjustice is procedural, emphasizing freedom or liberty. His stress onprocedure justifies unequal distributions: An unequal distribution is just ifthe method which produces it is just. Nozick's premise is a Lockeanconception of entitlement, but with a very important modification.According to Locke, the rights of the individual precede the state, whosefunction is to provide such services as are necessary (such asprotection of person and property) to enable the individual to flourish.The individual has a natural right to his body and, as a consequence,has a natural right to the fruits of his labor and to any property withwhich he has commingled his labor. This entitlement is limited byLocke's proviso that a person may appropriate property only if hisappropriation does not disadvantage another. In other words, I mayappropriate some of good X only so long as enough X is left for others.

45. Christopher John Nock, (Prof., Philosophy, McMaster U.),CANADIAN JOURNAL OF POLITICAL SCIENCE, Dec. 1992, 680.Nozick's case for laissez-faire capitalism is grounded in his commitmentto the "classical liberals' notion of self-ownership.” At the heart of thisnotion is a principle of equal liberty. Nozick cites Locke's statement ofthis principle: "we must consider what State all Men are naturally in, andthat is, a State of Perfect Freedom to order their Actions, and dispose oftheir Possessions, and Persons as they see fit ... without asking leave,or depending upon the Will of any other Man."" Locke men might be putout of this state was through their consent, or by forfeiting their right tofreedom by invading the equal right of others to the same." Insofar as aman respected this equal right of others, he was to be left free to governhis own life in his own way.

46. C. Mezzetti, (Prof., Philosophy, Linacre College, Oxford U.), SOCIALCHOICE AND WELFARE, 1987, 27. The Nozickian libertarianismprovides a moral justification for the market system whereas the workingof the market system supports the Nozickian view by assuring thegoodness of consequences. The descriptive limits of the perfectlycompetitive analysis of the market system and the diffuse extension ofmarket failures pose serious doubts to the general acceptability of theNozickian rights system in terms of consequences.

47. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D.,Harvard U.), SIX THEORIES OF JUSTICE, 1986, 59. According toFishkin, Nozick's approach can be viewed as "protecting 'capitalist actsbetween consenting adults.' That is, Nozick begins with assumptionsabout the right to own private property and to exchange it within certainboundaries of free and knowledgeable consent.

48. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAMURBAN LAW JOURNAL, Spr. 1996, 622. The Nozickean theory, basedon an entitlement to private property as a prerequisite for liberty andhuman flourishing, mandates a free-market system. Since the right toproperty includes the rights to use, possess, and dispose of theproperty, freedom of contract is necessary.

49. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS'THEORY OF SOCIAL JUSTICE, 1980, 454. First, it can be pointed outthat in ordinary life we normally do not act in a maximin fashion even ifwe are uncertain about the probability of various situations occurring. If itis a nice day and the chances of rain seem slight, we do not walkaround with raincoat and umbrella on the grounds that the worstpossible outcome would be to get caught in the rain without them.Rather we play percentages to maximize expected utility. It could bereplied that the seriousness of the choices in the original positionrenders this example irrelevant; but, to take another common case, howmany of us risk catastrophe by flying when we travel rather than takingthe bus or train?'

50. Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYUJOURNAL OF LAW & LIBERTY, 2005, 944. The idea of "maximin" is aconceptual loose cannon. For if we are to minimize the differencebetween two variables, what we get is absolute equality at the limit--notsome kind of moderate welfare state in which the gap between rich andpoor is only just so big. Philosophers in the literature have walked rightinto this trap. Everyone seems to think that Rawls's principle actuallymeans something. It does not, and only some kind of predisposition todefend things as they are can motivate people to think it does.Meanwhile, we need only point out that anything done in the name ofthis absurd principle is necessarily going to be to the disadvantage ofthose "more talented" persons who will pay the bills. And that, as wehave seen, violates fairness as characterized by Rawls.

51. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS'THEORY OF SOCIAL JUSTICE, 1980, 445. Libertarians charge thatRawls' conception of the original position as consisting of agentsignorant of their own individuating characteristics weights the procedureof choice in favor of egalitarian principles. Rawls represents hisprinciples of justice as those which would be chosen from an initialposition of equality, in which agents are unable to press for unfairadvantages. His agents are defined as ignorant of their own values,social positions and natural endowments, as well as of the particularfacts of their society. The idea is to eliminate factors which might biasthe choice of principles. The fact that his principles would be chosenfrom this position of fairness is supposed to add to the intuitiveplausibility of the principles.

52. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS'THEORY OF SOCIAL JUSTICE, 1980, 445. Rawls' contract, it shouldbe noticed, is very different from that in classical social contract theories.Since he never argues that actual men would all freely agree to his rulesgiven the choice among alternatives, as does for example Hobbes, it isclear that he is not trying to justify his preferred social institutions on thebasis of real interest or consent. The central notion in Rawls' originalposition is not in fact that of free choice, as it was in the early socialcontract tradition, but that of fairness or equality, as instantiated in theconditions of his veil of ignorance. If real agents would freely choosearrangements which would also be chosen by hypothetical agentsignorant of their social positions and natural endowments, there wouldbe no reason to think about Rawls' original position at all.

53. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS'THEORY OF SOCIAL JUSTICE, 1980, 446. While real contractsrepresent compromises or free exchanges, neither is present in Rawls'version, since his hypothetical agents are by definition all the same(each knows nothing of himself which could differentiate him fromothers), and there is nothing for them to compromise or exchange. Hecannot argue from the agreements of such purely hypothetical agentsalone that real people are bound to his rules of justice; he is only tryingto dramatize by this method which rules for the distribution of socialbenefits are just and fair. The argument here is not that real rationalagents would agree if given the choice, and thus should feel bound tohis system as by a promise, but rather that they should agree to hisrules of justice." The central idea is to define a situation in which thechoice of distributive rules must be fair and governed only by theoremsof rational choice. This is to be accomplished by means of the veil ofignorance. The application of the theorems of rational choice, developedoriginally by economists to govern strategies in situations in whichchoices are made, makes some of Rawls' arguments sound pragmaticor prudential, though in relation to actual self-interested agents they arenot. But for many libertarians, the only forceful arguments to guideconduct will be ones which are truly prudential, those which define thebest available compromises for real agents.

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