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7/27/2019 A CRITIQUE OF THE SOCIAL SECURITY SYSTEM USING ROBERT NOZICKS IDEAS OF THE MINIMAL STATE AND JUSTIC
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SAN BEDA COLLEGE
A CRITIQUE OF THE SOCIAL SECURITY SYSTEM USING
ROBERT NOZICKS IDEAS OF THE MINIMAL STATEAND JUSTICE AS ENTITLEMENT
An Undergraduate Thesis Submitted to the
College of Arts and Sciences
San Beda College
In Partial Fulfillment of the RequirementsFor the degree of Bachelor of Arts Major in Philosophy-Human Resource
Development
by
Jimmy Jerard A. Castro
March 2010
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Chapter 1
Introduction
In 1974, Robert Nozicks Anarchy, State and Utopia became one of the
major works in modern political discourse because it was the first serious attempt
to elevate the idea of libertarianism into the philosophical level. Nozicks
reactions to John Rawls idea of the social contract and distributive justice stem
from his belief that the state originates from the free market evolution of the state
from protection agencies that people voluntarily join to protect their rights
against any potential violation. Therefore, he believes that the only acceptable
state is the minimal state, whose sole function is to protect the individual rights of
its citizens. Anything that goes beyond the function of the minimal state is for
him tantamount to a violation of individual rights.
The idea of the Minimal State influences Nozicks theory ofjustice as
entitlement. This idea basically means that people are entitled to what they own
and are free to use/dispose of them as they wish, without state interference.
Furthermore, Nozick believes that the only acceptable way of transferring
property from one to another is through a voluntary, consensual manner.
Anything other than that, he believes, is invalid.
The concept of Social Security, defined as a program providing protection
against socially recognized condition including poverty or old age1 and its
redistributive nature would look inherently invalid according to Nozicks
1 Social Security. http://en.wikipedia.org/wiki/Social_security Accessed 3 January 2010
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philosophy. This study would attempt to look at the Social Security System from
the perspective of Robert Nozicks philosophy and critique the Social Security
System using his ideas of the Minimal State and Justice as Entitlement.
Statement of the Problem
This research poses the major question:
How does the Social Security System violate an individuals property rights
using Nozicks ideas on the Minimal State and Justice as Entitlement?
The major inquiry will be answered by considering the following sub-questions:
A. What is Robert Nozicks idea of the Minimal State?
B. What is his idea of Justice as Entitlement?
C. What is the intended purpose of the Social Security System?
Significance of the Study
This study is significant because it would be one of the first serious
philosophical challenges to the Social Security System as a legitimate state
function in our society. Since the Social Security System is widely accepted as
beneficial to society, attempts to debunk it are not mainstream. Furthermore,
this work would be one of the first to introduce the libertarian idea of Robert
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Nozick to local discourse, since his ideas have valid points to consider. His
beliefs about the state and its functions, and an individuals property rights can
be adapted in the local situation.
Scope and Limitation
The scope of this research includes Nozicks idea of the Minimal state--
how it arises from a pre-political state of nature. Concepts related to Nozicks
Minimal State, such as the dominant protective association, Side-Constraints, the
Principle of Compensation and the Harm Principle shall also be covered in this
research. This research also covers Nozicks idea of justice as entitlement, and
how it compares with other principles of justice. Related concepts, such as
Nozicks principle of just acquisition and transfer and principle of rectification, as
well as criticisms by other thinkers against Nozicks ideas of the Minimal state
and Justice as Rectification are also included in the discussion. The Social
Security System will also be a scope of this research. Focus will be given to its
intended purpose and its method of operation, as stated in Republic Act 8282.
However, it will not be concerned with actual statistics, but only its purpose and
the manner by which it works as a state function.
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Review of Related Literature
The materials that are presented are about Nozicks ideas on the Minimal
State and Justice as entitlement, and other thinkers viewpoints about them.
Some offer criticisms of Nozicks ideas, while others defend Nozick. These
viewpoints will be discussed in greater detail in the succeeding chapters.
The Minimal State
The Minimal State is a state that exists only for the purpose of protecting
individual rights. In Robert Nozicks Anarchy, State and Utopia2, the beginnings
of the minimal state is discussed as a product of different protective associations
which, through free market competition have left a single entity called a dominant
protective association. The dominant protective association is the same as an
ultra-minimal state, which holds a monopoly of force within a certain territory, but
does not provide protective services to everyone in it. According to Nozick, this
becomes a minimal state only when the dominant protective association extends
its services to individuals who have not availed of its services beforehand, in
exchange for their right to protect their own rights. However, this view is
opposed by Murray Rothbard, in the article, Robert Nozick and the Immaculate
Conception of the State3which challenges the historical validity of the minimal
2 Nozick, Robert. Anarchy, State and Utopia (Oxford: Blackwell Publishers Ltd, 1974)
3 Rothbard, Murray. Robert Nozick and the Immaculate Conception of the State. Journal of Libertarian
Studies, Vol.1 No.1 (1977), pp. 45-57
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state and claims that states originated through violations of individual rights.
Rothbards claim is refuted by Loren Lomansky, in the essay Nozicks libertarian
utopia4, in which she claims that Nozicks idea of a minimal state is only a
hypothetical model to describe how individual rights and the states role comes
about.
With regards to the transition from an ultra-minimal state to the minimal
state, some thinkers believe that there might a possible redistribution by the state
in order to provide protection to the non-clients, as claimed by John Danley in the
article Robert Nozick and the libertarian pardadox.5 Geoffrey Sampson
concludes that the minimal state is in fact, redistributive because other people
pay for the protective services of non-clients. Milton Frisk counters this view in
the article Property and State: A discussion of Robert Nozicks Anarchy, State
and Utopia. In this article, Frisk claims that the minimal state is purely a product
of the invisible hand, and that universal protection is merely domination by one
group by another. However, he also criticizes the transition between the minimal
to the ultra minimal state from this perspective, the domination by one group over
another. For Robert Ladeson, in the article Nozick on Law and the State: A
critique6 any protective association, dominant or not is already a state due to
them possessing certain characteristics that to him, states possess.
4 Lomansky, Loren E. Nozicks Libertarian Utopia. Contemporary Philosophy in focus,
(Cambridge:Cambridge University Press, 2002) pp.59-83
5 Danley, John R. Robert Nozick and the Libertarian Paradox. Mind, New Series, Vol.88, No.351 (July
1979), pp.419-423
6 Ladeson, Robert F. Nozick on Law and the State: A critique. Phlilosophical Studies: An international
journal for Philosophy in the Analytic Tradition. Vol.34, No.4 (November 1978) pp.437-444
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Justice as entitlement
The entire idea of Justice as entitlement is basically an explanation of
Nozicks historical principles of justice and his principles of just acquisition and
transfer, as found in the second part of the Anarchy State and Utopia. With
regards to Nozicks theory of Justice as entitlement, Robert Nozicks article
Distributive Justice7 discusses the second part of his Anarchy, State and Utopia
and compares it with the Rawlsian concept of justice as fair distribution of
benefits and burdens. Robert E. Litans article On Rectification with Nozicks
Minimal State8 focuses exclusively on Nozicks theory of Rectification. It
enumerates what kinds of rectification exists, and what is needed to enact them.
Furthermore, the main purpose of rectification is also discussed in this article, as
well as the question about whether or not rectification leads to a redistributive
justice system. G.A Cohen, in his article Robert Nozick and Wilt Chamberlain,9
How Patterns Preserve Lliberty discusses why it is short-sighted to consider only
the mode of transfer and not look at the circumstances beyond it. In the article,
he adds a power element within society, where he claims that those who gain
from any transaction also gain power, and if an imbalance is allowed to grow big
enough, it will be a threat to liberty.
7 Nozick, Robert. Distributive Justice. Philosophy and Public Affairs, Vol.3 No.1 (Autumn 1973) ,pp.45-
126
8 Litan, Robert E. On Rectification with Nozicks Minimal State. Political Theory, Vol.5 No.2 (May
1977), pp 233-246
9Cohen, G.A. Robert Nozick and Wilt Chamberlain: How patterns protect liberty. Erkenntnis (1975-),Vol.11 No.1 Social Ethics part 1 (May 1977) pp. 5-23
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With regard to patterned distribution, Pulin Nayak in the article Nozicks
entitlement theory and distributive justice10claims that there are always patterns
regardless of what type of principle of justice. In the article, he claims that even
in Nozicks historical principle of justice, patterns are formed, although differently,
for the sake of efficiency.
Thomas R. De Gregori, in the article Market Morality: Robert Nozick and
the Question of Economic Justice11 synthesizes Nozicks theory of Rectification
with the minimal state and the historical principle of justice. He finds a potential
conflict between the apparent redistributive nature of the extensive state that he
thinks is established for the purposes of rectifying injustices and compensate its
victims and the voluntary nature of historical principles of justice. For him, it is
hard to explain how and if it is possible that this two would not contradict each
other, and how an extensive, redistributionist state would give way to the
restoration of historical principles of justice.
The next chapters will discuss the ideas of these opposing viewpoints
regarding both Nozicks ideas about the Minimal State and Justice as entitlement
and criticisms of Nozicks ideas, and would try to provide answers for these
criticisms.
10 Nayak, Pulin B. Nozicks entitlement theory and distributive justice Economic and Political Weekly
Vol.24 No.4 (January 28, 1989) PE4-PE8
11 De Gregori, Thomas R. Market Morality: Robert Nozick and the question of economic justice. American
Journal of Economics and Sociology, Vol. 38 No.1 (January 1979) pp.17-30
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CHAPTER 2
Individuals have rights, and there are things no person or group may do to them
----Robert Nozick, Anarchy, State and Utopia
The Protective Association
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Robert Nozicks political philosophy begins with the origin of the state. In
his bookAnarchy, State and Utopia; he says that ever since the pre-political state
of things, people have certain rights and each individual has the right to enforce
these rights, or if he feels unable to enforce these rights by himself, to join others
in doing the same. These bands of people then form mutual protective
associations that are dedicated to protecting each other from entities that may try
to violate their rights.12
Because most people are unlikely to be able to defend and enforce their
rights individually, they will form numerous mutual protective associations within
any given territory.13 These different protection agencies will then compete with
one another and from the various transactions that will take place, a single,
dominant protection agency shall emerge.14 Nozick claims that this Dominant
Protective Association resembles a minimal state, because its only role is to
protect the rights of individuals against violation. Furthermore, because it
originated from the voluntary transactions of people, it could be said that the
Dominant Protective Associationis a product of the invisible hand.15
With regards to the question of whether or not the Dominant Protective
Associationis a state, Nozick gives 2 conditions for it to become one: 1) It must
have a monopoly of force within its territory, and 2) It must provide protection for
12 Nozick, Robert, Anarchy, State and Utopia (Oxford: Blackwell Publishers Ltd, 1974) p.12
13 Nozick.
14 Nozick, p.16
15 Nozick, p.18
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all individuals in its domain.16 Given these criteria, a protective association
cannot be considered a state, since it neither has a monopoly of force, meaning
non-clients can enforce their rights with nothing prohibiting them from doing so,
and because the protective association provides services only to its clients and
not to everyone within its area of operations.
Furthermore, Nozick also states that a protective association has no
power to impose any prohibition upon non-clients from independently enforcing
their rights more so threaten force against those who would do such things to the
protective associations clients, since to him, the a protective association exists
for the sole purpose of defending/enforcing the rights of its clients against
violation.17
The Dominant Protective Association
Regarding issue of how a Dominant Protective Association could become
a state. Nozick says that in order to protect everyone within its boundaries, the
Dominant Protective Association shouldhave some way to generate the revenue
needed.18 The assumption that clients of the Dominant Protective Association
are to shoulder the bill for providing protection to the non-clients within its territory
16Nozick, p.22
17 Nozick, p.24-25
18 Nozick, p.25
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would be misleading, as such line of thought may conclude that the Dominant
Protective Association is redistributive in nature, which it is not.
Nozick claims that the Dominant Protective Association is an ultra-minimal
state, since it maintains a monopoly over all use of force, except the use of force
necessary in immediate self defense and excludes retaliation for wrongs, but
provides services only to those who purchase its policies. In short, A Dominant
Protective Association is an ultra-minimal state because although it holds a
monopoly of force, it does not provide protection for all individuals within its
territory.19
How then, would an ultra-minimal state attain the status of a full-fledged
state? Nozicks answer points to the invisible hand. He claims that a Dominant
Protective Agency would come to provide protection to non-clients within its
territory through compensation.20 In this scenario, the Dominant Protective
Association would list reliable ways to enforce rights and prohibit those non-
clients, which it fears would enforce their rights in what it deems as unreliable
ways.21 Since the clients of a Dominant Protective Association have the right to
be shown sufficient information that a procedure of justice to be applied to the
clients is reliable and fair,22 he may empower his protective agency to exercise
for him his rights to resist those unfair and unreliable systems.23 Therefore, the
19Nozick, p.26
20Nozick, p.83
21Nozick, p.101
22 Nozick, p.102
23 Nozick.
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Dominant Protective Association is empowered to prohibit anyone from applying
to its clients any procedures with sufficient information about its reliability and
fairness.
To compensate the non-clients being prohibited from enforcing their rights,
the Dominant Protective Association would extend its protective services to
them.24 This is so because it is the least expensive way to compensate them.25
In this case, the prohibitors (the clients) pay for the expenses necessary to
provide the non-clients with such services,26 and the non-clients would accept
because it costs less than the amount that they would have incurred if they were
to enforce their rights on their own.
It should be noted that such payment is not redistributive, but more akin to
a transaction. The clients of the Dominant Protective Association pay for the
protection of the non-clients rights in exchange of the non-clients giving up their
right to enforce their own rights their own way, which the Dominant Protective
Association deems as unreliable, thus to be resisted. It should also be noted
that from the protective agency until its full form is attained, the only purpose of
the state is to protect individual rights against violations and nothing else.
Side Constraints
24 Miller, David L. Justification of Political Authority Contemporary Philosophy in focus,
(Cambridge:Cambridge University Press, 2002) p.13
25 Nozick, p.110
26 Nozick..
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Nozick thought that the individual is already an end, and not just a means
to an end. Because of this, he says:
Instead of incorporating rights into the end state to be achieved, since it results in an
even greater violation of rights, it might be placed as side-constraints upon actions.27
This means that because the states sole purpose is to protect individual
rights, the state cannot possibly use the protection of rights to direct its actions
upon. Unlike the utilitarian system which deliberately aims to maximize the
greatest good for the greatest number, or Rawls belief that the actions of a state
should try to benefit the disadvantaged, Nozick believes that such deliberate
aims only serve to violate individual rights more. Therefore, the idea of side-
constraints was put in play. Side constraints are limitations on an individuals
action lest his actions violate the rights of other individuals. This means that an
individuals actions are only limited to those that do not harm other people or
violate their rights. An individual, for example, may do transactions in the
market, and dispose of his rights or properties at will, but he cannot force or
prevent others from doing the same.
For Nozick, Side-constraints express the inviolability of individuals. The
limitation it imposes on the actions of individuals to other individuals stresses the
fact that an individual is an end unto himself and is not just a means to an end. 28
He compares this to an end-state view which treats individuals as ends to
means. The end-state goal, according to him, is only to minimize the use of
27 Nozick, p.29
28Nozick, p.32
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people as means, not to forbid it.29 Instead of the state trying to deliberately act
for the protection of individual rights, it should instead employ these Side-
Constraints and limit its actions within the Side-Constraints.
Nozick defends his idea of an individual as a means unto himself, claiming
that an individual cannot be violated for the greater social good because he
believes that there is no social entity with a good that undergoes some sacrifice
for its own good. What exists, for him are individual people, with individual
lives.30
About this fact, he says:
Side-constraints reflect the fact of our separate existences. They
reflect the fact that no moral balancing act can take place among us.
There is no moral outweighing of one of our lives by others as t o lead
to as greater overall social good.31
This belief that there are individuals with separate lives and that no one
may be sacrificed to others leads to a libertarian Side-Constraint that prohibits
aggression against another. However, Nozick thinks that this would not lead to
the full libertarian constraint. He says that further steps would be needed to
29Nozick.
30Nozick, p.33
31Nozick.
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then the demand for compensation does not deter him transgressing the victims
boundaries.35 Nozick says that even those acts that can be compensated for can
be prohibited for some of these cause fear36. Such things include physical
violence against individuals. For example, even if parties A and B agree that
Party A could compensate Party B for attacking him with a set price, the attack
would still need to be prohibited because it breeds fear and would lead to an
apprehensive populace. Nozick thinks that these things must be prohibited and
made punishable.37
In short, Nozick differentiated two categories of wrongs. 1) Private wrongs:
transgressions that violate the rights of others, but can be compensated, and 2)
Public wrongs: transgressions that will lead to fearful people. The latter, he
thinks should be prohibited.38
Conversely, prohibition cannot always be implemented. Nozick believes
that the prohibition of all impingement not consented, including accidental and
intentional acts would make people fearful that they may possibly be punished for
their actions and thus, propagate a feeling of insecurity.39
Principle of Compensation
35 Nozick.
36Nozick, p.66
37Nozick.
38Nozick, p.67
39 Nozick, p.71
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Individuals who are prohibited from doing certain actions in order to
reduce the risk to others are put in a disadvantageous position. Some
alternatives that they would take may cost them more than what usually spend
doing their already prohibited activity.
Nozick believes that the individuals who prohibit must compensate the
prohibited for the losses they incur because of the prohibition. He states:
a person must be compensated for the disadvantages imposed upon
him by being forbidden to perform an activity for these sorts of
reasons. Those who benefit the reduction in risks to themselves have
to make it up to those who are restricted.
Nozick delimits the class of actions covered by the claim for
compensation. For him, activities that play an important role in peoples lives
which an individual is prohibited from doing must be compensated.40 The
principle of Compensation also requires that people be compensated for having
certain risky activities prohibited to them. He also adds that there is a right to
forbid such actions, but only provided that they be compensated for the
prohibition.41
The principle of compensation stays true to Nozicks belief that individuals
are not merely means to an end, but ends unto themselves. By requiring that
certain individuals be repaid for whatever other individuals prohibit from them, he
40Nozick, p.81
41Nozick, p.83
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implies that individuals cannot be simply sacrificed to benefit their interests. For
a prohibition to be acceptable there must be an exchange. The prohibited party
shall trade his right to perform an action for something else.
The idea of compensation is important in the transition of the Dominant
Protective Association from an ultra-minimal state into a minimal state. The
principle of compensation was evident in how the Dominant protective
Association was able to prohibit non-clients from enforcing their own rights
without violating their right to do so.
Harm Principle
By now it should already be clear that the state, according to Nozick,
exists solely for the protection of individual rights. This means that the state
cannot arbitrarily perform actions that violate individual rights. It cannot usually
coerce individuals to perform acts that would violate their rights, but there are
instances when it could do so. Nozick however, thinks such coercion is only
justifiable when the act that is to be prevented by coercive action is a violation of
individual rights.42
42 Sampson, p.96
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An example of this is the expenses levied by the state in order to prevent
murders. The act of murder is a violation of an individuals right, and as the
protectors of individual rights, the state has been granted the power to enforce
the rights of its citizens. Therefore, it could levy the fees needed in order to
function according to its role and protect the individuals rights from violation. 43
However, this does not extend to other services not intended to protect
individual rights. These include services such as social welfare and public-
funded healthcare. The state cannot charge levies from its citizens so that it
could provide them with such services, since the things that social welfare
programs try to avoid, namely: hunger, poverty, disease and so on do not by
themselves violate individual rights.
Using coercion is justified when preventing actions that would violate
individual rights, such as murder because failure to protect against murder would:
encourage murder and thereby reduce every citizens expectation
of living freely, enjoying the way of life he has managed to gain in the
markets.
On the other hand, allowing a citizen to die from lack of medical treatment
does nothing to harm other individuals interests.44 The difference is legitimate
reasons for coercion, such as prevention of murders; rights-violations would be
unchecked unless action is done, while inaction regarding human welfare does
not necessarily propagate rights-violation. An individuals quality of life is his own
43Sampson.
44Sampson.
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concern, and it is not justifiable for a state to coerce people to prevent acts that
by themselves do not violate individual rights. Another difference is rooted in the
purpose of the state itself: the protection of individual rights. A state is
empowered to protect individual, because its citizens have empowered it to
protect their rights against aggression. They have not empowered the state to
protect their welfare; therefore, it is not the concern of the state to provide welfare
to its citizens.
In short, since the sole purpose of the state is to protect individual right
against aggression, a function that does not have this as its purpose is unjustified
and should not be carried out.
Criticisms of Nozicks idea of the minimal state
Murray Rothbard, in his essay Robert Nozick and the Immaculate
Conception of the Stateattacks the entire idea of the minimal state. According
to him:
it is highly irrelevant to see whether Nozicks ingenious logical
construction (ultra-minimal state has ever occurred in history; namely
whether any state, or most or all states have evolved in the Nozickian
manner.45
He doubts the idea that the minimal state is a truly historical entity that
faithfully reflects the real origins of present-day states He questions the historical
45 Rothbard, p.45
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validity of the state as originating from Dominant Protective Associations.
Furthermore, he also suggests that the true historical origins of the present-day
states are the opposite of what Nozick thinks. For him, present-day states are
actually products of violations of rights. As he puts it:
In fact, there is no evidence whatsoever that any state was founded
or developed in the Nozickian manner. On the contrary, historical
evidence cuts precisely the other way, for every state where facts are
available originated by a process of violence.46
By attacking the validity of Nozicks idea of the evolution of the state from
protective associations, Rothbard tries to discredit the idea altogether, and the
implications it brings. If the historical validity of Nozicks idea is discredited, then
the ideas regarding the state that are connected to it are also discredited.
He adds:
Since Nozicks justification of existing statesprovided that they are
to become minimal- rests on their immaculate conception and since no
such state exists, then none of them can be justified, even if they
should later become minimal.47
Rothbard claims that Nozicks theory of the minimal state can justify only
those states that actually evolved from the Dominant protective associations.
Since he does not believe in the existence of such, then Nozicks theory cannot
justify present-day states. He then claims that if Nozick still wants to justify any
46 Rothbard.
47 Rothbard.
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state as products of the free market, then he should join the anarchists and call
for the abolition of present-day states and wait for his invisible hand theory to
come about.48
However, some do not think of it that way. Loren Lomansky, in her essay,
Nozicks libertarian utopia says:
the derivation of the minimal state is hypothetical, and an account
of process by which institutions could have emerged. It is not
presented as a historical model of evolution by any actual minimal
state, of which there are none.49
She makes it clear that the Nozickian idea of the minimal state is not
intended to justify any present-day state but to serve only as a foundation for his
idea of the nature of the state and its role. Contrary to Rothbard, she does not
consider Nozicks idea of the minimal state as a justification for present-day
states, but as a probable model of how states could have evolved from the pre-
political to the present; therefore, there is no need for Nozicks idea to justify-any
present-day state.
John R. Danley, in his article, Robert Nozick and the Libertarian Paradox
claims that there is a prima facie paradox in Nozicks idea with regards to the
apparent redistribution that happens in the minimal state. He claims:
As Nozick sees it, the paradox involves the libertarian stand on
redistribution and the nature of the night-watchman state. On one
48 Rothbard.
49 Lomansky, p.64
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hand, no moral state has the moral right to enforce redistribution of
property. Yet, on the other hand even the night-watchman state
appears redistributive as for the as the state provided protective
services through everybody within its territory through a general
tax.50
For him, the state coerced individuals for the payment of protective
services of non-clients through a general tax. This appears to him as
redistributive, as it gives an impression that the state can force individuals to pay
for a security system. Now he asks why not the same for nationalized healthcare
and welfare?
However, if the harm principle is used to justify the states coercion to
citizens to levy funds for the security of everyone and to deny it for welfare
policies, he then sees the paradox. He adds:
Given the private harm principle, the use of coercion to force their
members to pay for the protection of the independents appears to be
unjustified. 51
For him, not providing non-clients within a minimal state the protection
they need does not seem to violate any right. It would not result in any violations
of rights to the citizens not to provide the non-clients with protection services.52
50 Danley, p.419
51Danley, p.421
52 Danley.
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He implies that a paradox only occurs because Nozick rejects the Public
harm principle, which stipulates that the state could justify restriction on liberty on
the distinct ground that it is necessary to prevent impairment of institutional
policies that are in the publics interest. Nozicks harm principle, according to
him, only involves the Private harm principle, which only justifies restrictions to
liberties to prevent injury to other specific individuals.
Furthermore, he states that if the Public harm principle is accepted, theres
no paradox, but it fails to come to grips with the more fundamental conclusion of
whether or not the public harm principle is morally unjustified.
Geoffrey Sampson, in his article Liberalism and Nozicks Minimal State,
tackles the question of whether the minimal state is redistributive or not. He
says:
One of the key principles of liberalism is that the state should not
enforce redistribution. As far as possible, it should avoid interfering
with the pattern of rewards which emerges from the free play of
market forces, either by progressive tax, or providing a social wage.53
He claims that the minimal state is non-redistributive, but points out that
Nozick considers the idea of the minimal state as redistributive as an error
because he thinks the minimal state is:
53 Sampson, p.93
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Onlyprima facie highly redistributive, and is after all non-
redistributive, but for reasons not discussed by earlier liberal thinkers.
54
Sampson considers Nozicks argument as fallacious. For him, the
Dominant Protective Association could not be considered a state, since in it,
protection and enforcement of peoples rights is treated as an economic good
provided by the free market, and different individuals may pay for different levels
of protection. This stands in contrast to the conventional view of the state, which
must unconditionally offer protective services to everyone within its territory. This
means in the state, protective services are distributed. Others pay more so that
others may be protected, making it redistributive.55
Nozick however, solves this problem by using the invisible hand and the
principle of compensation.56 However, the fallacy in it is that Nozick presupposes
that the benefits by a liberal state are benefits which can be charged out to
individuals rather than having to be paid by a general tax. Sampson considers
this as false, and claims:
The only benefits a liberal state which could reasonably seem as
accruing to specific individuals are remedies provided by civil law
against others misbehavior. Such benefits cost the taxpayers nothing,
54 Sampson.
55 Sampson.
56Sampson, p.94
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since the costs of civil action are paid by one of the parties, so no
element of redistribution arises. 57
Furthermore, Sampson attacks the idea of the free market origin of the
state as resting on inconsistent premises. According to him, for it to arise, it is
necessary that individuals obey moral rules governing behavior in the free
market, such as abiding by side-constraints, compensation etc. However, if that
was the case, as Samspon claims, then there would not be a need for the state
at all. If individuals acted in such manner, then why need a state? Anarchy itself
would be an utopia. He adds:
If people do what they are morally required to do, then there would
be no need for protective associations. Thus, one of the premises
which Nozick needs in order to show that anarchy will develop into a
minimal state itself guarantees that anarchy will remain anarchy and
that no state of any sort will arise.58
Milton Fisk, in his review of Nozicks book, Property and State: A
discussion of Robert Nozicks Anarchy, State and Utopia , states that the origin
of the state due to a spontaneous formation. However, this spontaneity is due to
the individuals self-interest.59 According to him, nobody really consciously wills
57Sampson, p.95
58Sampson, p.97
59 Fisk, Milton. Property and State: A discussion of Robert Nozicks Anarchy, State and Utopia. Nous.
Vol.14 No.1 1980 APA Western division meetings (March 1980) p. 99
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the state itself, because everyone helps in its establishment but without noticing
it.60
However, he argues that the monopoly of the Dominant Protective
Association is not by the protection of personal interests, but when one group in
a society stabilizes its domination of others by an armed force.61
His criticism against Nozicks idea of the minimal state lies in the transition
from the ultra-minimal state, to the minimal state when the state extends
protective services to everyone within its territory. In the transition to universal
protection, the non-clients might not receive warmly the Dominant Protective
Associations denial of their rights to protect themselves independently; however,
for Nozick, this cold reception by the non-clients is irrelevant.62
Fisk claims that the problem is with the idea of compensation as the
motive for universal coverage for protective services. Since non-clients cannot be
counted to enforce their rights consistently with the interests of the state, and that
non-clients enforcing their rights not according to state interests is something that
a state tries to avoid, the state does its best to spread the conviction that it will
enforce the rights of everyone equally and fairly.63
What does this imply? Fisk says that the practice of compensating non-
clients from the disadvantaged position it puts them by prohibiting them from
60Frisk, p.100
61Frisk, p.101
62Frisk..
63 Frisk.
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enforcing their rights is not rooted in the desire to compensate them, or to follow
the principle of compensation, but fear of the non-clients. It means that it is not
the pre-emption of violation of rights that pushes the clients of a Dominant
Protective Association to prohibit non-clients from enforcing rights, but their fear
that the non-clients might act in ways that do not conform to their interests. 64
Furthermore, Fisk expresses doubts regarding the promise of the state to
protect the rights of everyone equally and fairly. He thought that the idea of
equal and fair protection of everyones rightswill not be the case in practice. He
says that in reality, the rights of the dominant group are protected if they compete
with the rights of the dominated, and that the legitimacy of the state depends on
the conviction of equality, but its success depends on partisan practice.65
If that is the case, then Fisks idea concludes that in a minimal state, there
is only an expressed equal and fair protection of rights, but not a practiced one.
This puts into question not only the idea of the state as far as providing equal
protection of rights is concerned, but more so the validity of the minimal state
itself as a state.
However, some would conclude as irrelevant any discussion about the
transition of the Dominant Protective Association from the ultra-minimal to the
minimal state. Robert Ladeson, in the article Nozick on law and the state: a
critique claims that the protective association itself, whether dominant or not
already has the essential features of a state. He claims:
64Frisk.
65Frisk.
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A protective association has most of the basic governmental
powers, as perceived by contractarian theorists, most prominently, the
powers to legislate, adjudicate disputes and to punish.66
Ladeson thinks that having such functions already suffice being called a
state. It is true that even a non-dominant Protective Association can set rules and
intervene with conflicts among its clients and punish those non-clients who
commit violations against the clients, but there is an apparent difference between
essential features of a state and being a state which functions as one.
For example, an entity having the essential features of a state may or may
not also enjoy a monopoly of force over any given area. If such an entity does
not enjoy the monopoly of force, then it is doubtful whether or not it would really
function like a state. With regards to Protective associations, a protective agency,
dominant or not may hold all these essential features of the state, but holding
such
features do not guarantee that it cannot function as a state should. Of
course it is up to the reader to judge whether this difference is worth pondering
on, but for a client of a state, there is a difference between a state, considered so
simply because it holds essential features of a state, and one that operates like
one.
66 Ladeson, p.439
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Chapter 3
From each as they choose, to each as they are chosen.
---Robert Nozick, Anarchy,State and Utopia
Justice as entitlement
With the idea of the minimal state existing only for the protection of
individual rights established, Nozick turns his attention to his own idea of justice.
Because of his claim that the minimal state is the most extensive state that can
be justified, any more state violates peoples rights, he provides the foundation of
his idea of Justice as entitlement.
Unlike thinkers such as Rawls, who argued that justice is in the fair
distribution of benefits and burdens, or John Stuart Mill, who simply wanted to
maximize the greatest good for the greatest number, Nozick does not believe in
distribution. For him:
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There is no central distribution, no person or group entitled to control all
resources, jointly deciding how they are to be doled out.67
In short, Nozick says that the transfer of property and goods from one
person to another does not go through a system of distribution. No entity decides
which goes to whom and where. Nozick believes that what each person gets
comes from others who give it for something in exchange, or as a gift. For him,
many people control different resources and new holdings arise out of voluntary
exchanges between them.68
Principles of Acquisition and Transfer
Nozick believes that only a voluntary exchange is a just one, and people
only have a right to their property if they came to acquire it under some
principles, which are as follows:
1. A person who acquires a holding in accordance with the principle of
justice in acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principles
of justice in transfer from someone else entitled to that holding, is
entitled to that holding.
67 Nozick, p.149
68 Nozick, p.150
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3. No one is entitled to a holding except by (repeated) applications of
1 and 269
The principles of justice in acquisition and transfer simply mean that in
order to have any entitlement to any property, one must have acquired it through
a voluntary transfer. Whatever that was obtained in ways that are not voluntary
or in ways that would violate individual rights does not rightfully belong to its
recipient. The recipient then would have no right to it.
Certain things, such as welfare benefits belong under the category of
holdings which are not acquired through voluntary means. In most cases, social
welfare is funded through coercive legislation and distributed in a centralized
manner. This means that because social welfare benefits do not abide by
Nozicks principles of just acquisition and transfer, its recipients do not have the
right to the benefits they receive. This issue of distributed holdings as standing in
conflict with justice will be discussed in more detail later in this chapter.
Historical and End-Result Principles of Justice
Nozick differentiates his idea of justice as entitlement to other principles of
justice in his discussion about the Historical and Current time-slice/End-Result
principles. He claims that his idea of justice as entitlement is historical, meaning
that the justice of distribution is based on how it came about 70. A just acquisition
69 Nozick, p.151
70Nozick, p.153
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in a historical principle is an acquisition that was carried out voluntarily without
any trace of coercion, regardless of the after-effects of the transaction. For
example, a trade wherein a poor person would voluntarily give all his remaining
possessions to a rich person would still be considered by Nozick as just, since it
was done in voluntary manner, although it may worsen the condition of the
former.
On the other hand, other principles of justice follow the end-result
principle.71 Under this principle, the justice of distribution depends on how things
are distributed as judged by structural principles of just distribution.72 This means
the circumstances of trade are given consideration and that for a transaction to
be considered just, it must be judged according to a certain fixed standard of
justice. End-result principles of justice are concerned with the question Who
ends up with what? and because of this, end-result principles create a patterned
method of distribution and therefore, try to dictate the movement of goods and
properties.
Welfare economics is the theory of current time-slice principles of justice.
Welfare economics operate under various matrices representing only the current
situation. Its judgments are only limited to it, and it is only concerned with the
circumstances of the involved parties.73
71Nozick.
72Nozick, p.154
73Nozick.
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According to Nozick, the problem with end-result principles of justice is
that they always try:
... to maintain a pattern that would continuously interfere to stop
people from transferring resources as they wish, or to continually take
from some persons resources that others, for some reason choose to
transfer to them.74
What Nozick means is that end-result/distributive principles of justice
would inevitably interfere with the right of individuals to conduct transactions as
they wish. It is, in essence a violation of individual right to stop people from giving
or receiving things they voluntarily intended to do. Furthermore, an end-result
principle of justice is incompatible with the role of the state, as determined in the
preceding chapter.
Nozick believes that distributive principles of justice do not give people
what entitlement principles do. They do not give the right to choose to do with
what one has. Such distributive principles of justice stand in contrast with the
historical principle of justice, which grants individuals the right to acquire and
dispose of properties freely, as long as these acquisitions and disposals are done
so voluntarily. Unlike in historical principles of justice, proponents of a
distributive system:
74 Nozick, Distributive Justice. p.60
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focus upon criteria for determining who is to receive holdings. They consider the
reasons for which someone would have something, and also the total picture of
holdings.75
What this means is that in a distributive system of justice, the individuals
freedom to enjoy his rights to their property is subordinated to the designs and
patterns of distribution. Every transaction must conform to these patterns,
because proponents of an end-state/distributive principle of justice think that
such patterns are in place to serve the common good. However, as mentioned
earlier, what such interference does is simply violate an individuals right to enjoy
his right to property.
Furthermore, Nozick thinks that a distributive system of justice takes away
mans right to his property. Patterns give other people an enforceable claim over
the property of other people. According to him, under end-result principles of
justice:
Each person has a certain claim to the activities and products of other persons,
independently of whether the other persons enter into particular relationships that give
rise to these claims, and independently of whether they voluntarily take these claims
upon themselves, in charity or in exchange for something.76
This means that the nature of end-result patterns of distribution relieves
man of his right to his property. Suddenly, his right to use or to dispose of
whatever he owns becomes subordinate to the patterns created by the
distributive system of justice. For example, Person A, who owns a significantly
75 Nozick, p.64
76 Nozick, p.68
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larger amount of property than others, is rightfully entitled to it assuming he
acquired it under the principles of justice in acquisition and transfer, would
suddenly find himself stripped of his right to enjoy the benefits of these properties
and would be forced to give some of these up, so that those who have less-in-
life, the so-called have-nots, would be also able to enjoy the benefits.
However, the problem with this is that the question what gives other people the
right to person As property? is not answered. In most cases, end-result
principles are patterned after the pursuit of the common good. Welfare
redistributionists, in their desire to enhance the living standards of the have-nots
would look to redistribute current property holdings according to various patterns,
interfere with an individuals right to his property. Whether it is through a direct
and simple seizure of property by the state, such as in the case of land reform, or
a milder form of compulsory contribution to fund a social welfare program, such
as the SSS, the fact is that other people are enforcing rights to properties they do
not own. The question, What gives other people the right to an individuals
property? is not answered.
In short, whenever any other person claims a right to someone elses
property without coming into agreement with the latter, he is in effect, seizing the
property from him. Nozicks principles of just acquisition and transfer clearly
state that a person only has a right to a property either through voluntary
acquisition or voluntary transfer, and therefore, people who wish to spread the
wealth are in fact thieves. What they are doing, namely, enforcing a right to a
property they neither own nor have a right to, is theft. These people steal not
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only the property itself, but the rightful owners sole right to it. Under end-result
principles of distribution, one ceases to become the sole owner of his property.
Nozick claims that because a rightfully acquired property is gained from
voluntary exchange and that is from things earned with the fruits of ones time,
such seizure not only makes other people owners of ones property property,
but also of the individual himself. He says:
Seizing the results of someones labor is equivalent to seizing hours
from him and directing him to carry on various activities.77
If other people would enjoy the benefits of the work hours an individual
puts in, then it means that the individual does not get compensated for his time.
In effect, although not evident, the enforcement of other people to the properties
they do not own makes slaves out of individuals, since the latter is being forced
to accept an imbalanced transaction. In short, an end-result principle of
distribution is actually a vehicle for slavery! As Nozick puts it:
End-State and most other patterned principles of distributive justice institute (partial)
ownership by others of people and their actions and their labor. These principles
represent a shift from the classical liberals notion of self-ownership to the notion of
(partial) property rights to otherpeople.78
For Nozick, deviation from the first two principles of justice (acquisition
and transfer) will involve other persons direct and aggressive intervention to
77Nozick, p.69
78 Nozick, Anarchy, State and Utopia, p.172
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violate rights, and would thus conflict with the earlier idea of side-constraints. 79
The mere act of claiming a right to other people or their property goes beyond the
limitations that restrict an individuals action lest he violate the rights of other
people.
The principle of just acquisition and transfer is absolute only if since the
beginning, its rules have been followed. However, for cases of an unjust
acquisition and transfer, or to address those who gained something without
abiding by voluntary transfer, Nozick provides a new principle, the Principle of
Rectification.
Principle of Rectification
In cases where a holding was unjustly gained, Nozick presents the
Principle of Rectification. This simply is about correcting the mistakes and
damages brought about by the invalid acquisition or transfer. Nozick
acknowledges that some transactions are not brought about by the principles of
just acquisition and transfer and thus, he also implies that it is acceptable to take
away the goods and return it to its rightful owner.
The goal of rectification, aside from fixing the mistake done by the
incorrect transaction, is to compensate its victims. In the article On rectification
in Nozicks Minimal state, Robert E. Litan discusses the sub-concepts under
rectification, and the prerequisites to it. He begins by enumerating the problems
79 Nozick, Distributive Justice, p.69
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apparent in any case of violations of principles of entitlement which would
necessitate rectification, namely: 1) It is not immediately apparent whether or not
a claimant has a personal link between the injustice and his personal welfare,
and 2) if so, what degree of proof is required?80
Before these issues are resolved, Litan differentiates between the 2 main
kinds of rectification:
1) Intra-generational: for living victims to collect rectification awards ; and
2) Inter-generational: which encompasses all injustice and in theory,
ensures that the present distribution of entitlements in such a way if
only the principles of justice in acquisition and transfer had been
followed.81
Litan claims that personal grievance must be proven in cases of
rectification.82 Therefore, it is harder to pursue an intergenerational claim,
because it is harder to prove a personal link between alleged injustices and the
welfare of the claimant.83 Furthermore, he also states that if rectification already
occurred during the lifetime of the violated party, then the claims of his
descendants for welfare would be groundless.84
80 Litan, p.234
81Litan.
82Litan.
83Litan.
84Litan.
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In Nozicks minimal state, rectification applies only to present injustices
and only for a few past injustices where plaintiffs can sustain their burdens of
proof.85 In practice, though, rectification would be limited exclusively to actions
concerning present injustice. Distributions of inherited entitlements in each
generation are largely untouched.86
Although intergenerational rectification is harder because past injustices
are more likely to present imperfect information about the past and thus, would
lead to mistakes, it is still possible. Litan lists four requirements, if provided,
would give ground to an intergenerational rectification claim, namely:
1. Those instances in which the principle of justice in acquisition is
violated, the parties committing such violations, the victims and the
amount of compensation owed.
2. Those instances in which the principle of justice in transfer is violated,
the parties committing such violations, the victims and the amount of
compensation owed.
3. The change in property distribution at the time one generates by the
different capital distribution following compensation patterns.
4. The alteration of inheritance patterns in all subsequent generations
induced by compensation payments.87
85Litan, p.235
86 Litan, p.236
87 Litan, p.238
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All these are necessary to prove a link between an intergenerational
rectification claimant and the injustice, as rectification requires such things first
and foremost. Providing accurate information on all four requirements is a
gargantuan task.88 Litan says, that intergenerational rectification, when applied
strictly, tends to wipe the slate clean at arbitrary points of time for the sake of
convenience.89 What this means is that sweeping changes would be made
arbitrarily. For example, whenever the state wills it, rectification is done to
compensate descendants of victims of past injustices. The changes that will be
made by rectifying the injustices made would serve more the sake of
convenience, rather than stay true to the nature of rectification. However, this is
usually not the case. Instead, intergenerational rectification would:
Require an inquiry only into those injustices that occurred in the
original acquisition in the beginning of time and the points in history
thereafter when previously unowned land and property were
appropriated.90
If the injustices were significant, then there would be a difference in the
distribution in subsequent generations when the idea of compensation is
involved. Litan says that there would be a difference had compensation been
done for violations that occurred. Furthermore, he adds that historical differences
between time one and the present day would have little significance for the
88 Litan.
89 Litan.
90 Litan.
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present-day rectifier, since history would have been different during the long
interim period.91
Because of the inquiry into in some beginning point in history poses
problems regarding information, Nozick offers a second-best solution which
would employ the best estimate of subjunctive information on what would have
occurred but for the injustices92This means his rectification would try to estimate
what the conditions would have been, if injustices did not occur, and that would
be the target goal of the rectification. However, this poses an interesting
question as to whether Nozick did indeed set a precedent for a pattern-based
system of justice. Did Nozick, with this claim regarding estimating whatever best
estimate, just call for a scenario wherein peoples property would be redistributed
as compensation for perceived injustices made during past periods in order to
attain the said goal?
It is highly unlikely. Litan claims that:
A strong tenet of Nozicks theory is that it is designed not to sacrifice
the individual on the altar of social welfare. Indeed, to speak of social
welfare apart from the welfare of the individual citizens is in Nozicks
view, misplaced. Thus, a rectification procedure which inherently
commits mistakes arguably violates the rights of the victims of
mistakes by unjustly taking their property for the purpose of
compensating others.93
91Litan.
92 Litan, p.239
93 Litan.
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Litan claims that the idea of rectification as something equivalent to a
distributive/patterned form of justice is a misreading of Nozicks intentions. 94 He
believes that in Nozicks theory of rectification, it may be true that some may be
treated unjustly; individual rights are not sacrificed for the common welfare, but
are being traded for the rights of others.95 What Nozick means by this is
surprisingly simple. It is clear that his view of rectification is not intended to
redistribute rights and property for the purpose of a common good, but rather to
balance the imbalances caused by previous injustices. His intention was only to
compensate the previous injustice through compensation.
With regards to intergenerational rectification, Litan claims that because of
Nozicks belief that no man is more important than the other, an intergenerational
rectification is legitimate if and only if the number of those receiving just
treatment outweighs the number receiving unjust treatment. As he puts it:
Rectify if and only if the number of those whose property allocations
are made more just by the rectification procedure exceeds the
number whose property allocations were made more unjust.96
However, one must be careful not to interpret this passage as a green-
light from Nozick to enact social welfare programs. As it is clearly stated that
(intergenerational) rectification is only done for the purpose of compensating an
injustice, the notion that social welfare programs should be entertained only if
94 Litan.
95 Litan
96 Litan, p.240
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these are done for the same purpose, and not for the sake of the common
good, and more importantly, if the claimants to welfare benefits would prove
beyond doubt their links to the injustice they claim to correct. Without it, any
social welfare program violates an individuals right to his property and could thus
be considered as theft.
Criticisms of Nozicks theory of justice as entitlement
Some thinkers believe that Nozicks theory of Justice as Entitlement leads
to a situation wherein some people would use voluntary means to gain power
over others; thus threatening liberty. G.A. Cohen, in the article, Robert Nozick
and Wilt Chamberlain, How Patterns Preserve Lliberty discusses the idea of
ones absolute right to what was voluntarily transacted to him, and criticizes
Nozicks view that any transaction that was undertaken voluntary is just,
regardless of circumstances. Like Nozick, he also uses the example of Wilt
Chamberlain to explain his criticism towards the former. He claims:
the payments Wilt Chamberlain receives from other people,
although voluntarily, thus just, put him in a special position of power in
what previously an egalitarian society.97
What he adds to the transaction is the relative standing of people to each
other. While Nozick ignores this aspect, Cohen points out that only looking at
how a transfer is carried out would not reveal the real picture. He also looked at
97 Cohen, p.11
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how transactions increase or decrease the overall value of an individual relative
to his population, and based his criticism on how the disparities between these
values pose a threat to liberty itself.
Cohen contests Nozicks claims that the legitimate shares of third parties
(people who are part of society, but are not involved in a particular transaction)
remain unchanged are not true. He believes that the effective shares of an
individual also depend on what others have. An individual may have the same
amount of shares, but his value varies depending on what others have. He may
be a rich man in a poor society, or vice versa. Cohen claims that more equality
in shares, more equality in power.98
Cohen thought that since Nozick forbids any act which restricts freedom,
he would defend certain acts of freedom that would lead to totalitarianism.99 It is
obvious that he was referring to the actions of people who amass a significantly
greater amount of standing through voluntary (and thus just) means. In Nozicks
concept of side-constraints, it is made clear that we may never limit mans
freedom to enhance/maximize the welfare of many others. However, Cohen
attacks this idea According to him, Nozicks defense of Side-constraints, which
rejects he idea of sacrificing the individual, on the grounds that a social entity
does not exist is unclear about whether it is arguing against one who puts
98 Cohen, p.12
99 Cohen, p.16
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redistribution across lives on par with sacrificing something for his own greater
benefit or for the impermissibility of redistribution.100
In any case, Cohen tackles both possible intentions to Nozicks defense of
the Side-constraints. First, if Nozick argued for the first, then to him, his answer is
acceptable, but the Side-constraints are unjustified101, while if Nozick also argues
for the second, then Cohen claims that redistributors do not have to believe in
social entities, and since side-constraints are unjustified, then there is no need to
apologize for being willing to restrict freedom in order to maximize it.102
In effect, Cohen bypasses the idea of side-constraints by claiming it as
unjustified, and because of the lack of Side-Constraints, he frees the redistributor
from the obstacle that prevents him from interfering with the holdings of
individuals, supposedly in order to keep people equal and thus free. What this
implies is not that hard to get. What Cohen wants is to find a way past the side-
constraints, since for him; these exist to help certain people achieve power over
others through voluntary means. He believes that man holding power of his
fellow man threatens liberty itself. As such, for him, to ensure that people remain
free, there must be interference to ensure that their shares do not accumulate a
large disparity. Such interference is done through patterned systems of
distribution.
100 Cohen,p.17
101 Cohen,
102 Cohen,p.18
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However, Cohen, even with his justification of interfering with patterned
distribution to ensure liberty does not provide a moral justification for taking away
an individuals rights to property to achieve certain good. He fails to take into
account that voluntary transactions themselves are exercises of liberty. His
intentions instead arrive at a paradox. Does one restrict the exercise of liberty in
order to preserve it? It obviously does not. Furthermore, the idea of restricting
this exercise of liberty is counter-productive to the very liberty Cohen wants to
preserve. Nozick himself says that in a truly free society, an individual can sell
his rights to the market, even his right to freedom.
103
He believes that what is
essential is free choice.104 In short, a truly free society enables any individual to
sell himself to slavery as long as it is voluntary. Cohens defense of interfering
with this exercise of liberty to preserve it is the one that is groundless and
unjustified, because his idea of patterns as preserving liberty actually restricts
what an individual can do not to others, but to his own alienable rights. In order
for it to preserve liberty, then Cohens intentions should preserve an individuals
right to sell his right to freedom. However, his patterned theories of distribution do
not provide that option.
Other thinkers believe that historical principles of distribution also fall
under a pattern. Publin B. Nayak, in the article, Nozicks entitlement theory and
distributive justice, states that Nozicks theory of Justice as entitlement is also
103 Andrew, Edward. Inalienable Right, Alienable Property, and freedom of choice: Locke, Nozick and
Marx on the alienability of labor. Canadian Journal of Political Science Vol.18 No.3 (September 1985)
p.536
104 Andrew.
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based on a pattern, albeit of a different nature than most other patterned systems
of distribution. Nayak claims that:
For Nozicks Entitlement theory to work, there has got to be a
starting point of ownership, but even at that point, there has got to be
some ground rule or rules that would govern the pattern of property
ownership.105
This means that even in the beginning, the distribution of different
properties to different people is already patterned. There are trends as to which
property went goes to whom. Nayak claims that any worthwhile patterned theory
of distribution would not be rigid about a particular static situation, since:
A moments reflection will convince us that in a private ownership
economy, any productive activity would alter any pre-assigned
distribution.106
Nayak believes that because of the nature of private ownership, the ones
who control the patterns are the individuals. The pattern is manifested in the
manner they transact and distribute property amongst themselves. However,
Nayak does not believe agree with what Nozick meant by patterned theories of
distribution, as he thinks that patterned theories of distribution are not at all
concerned with preserving a particular distribution. What Nayak meant by pattern
is simply the specific order upon which property is distributed by the individuals
amongst themselves. This pattern may vary from time to time, and does not try
105 Nayak, PE-4
106 Nayak, PE-5
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to distribute property in any specific order. The most important difference is that
Nayaks pattern is determined through voluntary transactions, and does not serve
any end. Thus, he says:
A pattern or a particular configuration of holdings is to be distinguished from a patterned
theory of distribution; the latter is nothing but an end-state theory of distribution, which is
not necessarily a single pattern107
Nayak denies that a pattern must try to preserve a specific order. For him,
there is nothing sacrosanct about a particular holding pattern, and that it may be
readily abandoned in favor of another pattern.108 As stated above, he
differentiates his idea of pattern and the pattern of Nozick, which he dismisses as
an end-state theory;109 thereby, erasing the distinction between historical and
end-state principles of distribution, in the sense that one is considered patterned
and one is not. Because his idea of pattern is a broader and not directed toward
any end, he claims that liberty may upset a specific pattern of distribution but not
a patterned theory of distribution. He believes that even those transactions
occurring under the category of a historical principle of justice have their own
patterns. Therefore, one cannot say that liberty upsets patterns, since liberty
also makes patterns.
Because even the historical principle of justice creates its own patterns of
distribution, Nayak says that since we cannot escape patterns:
107 Nayak, PE-6
108 Nayak.
109 Nayak.
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If we are to be in the realm of distributing goods, then we have no
choice but to resort to periodic patterning, with due allowances made
for history, for the sake of efficiency.110
Once again, the pattern Nayak refers to is the current order of which
property is distributed by individuals among themselves. When we make
transactions, then we become part of this pattern. Especially in cases wherein
we try to improve our positions through transactions, we submit to the pattern
that all of us adopt for the sake of efficiency.
Thomas R. De Gregori, in the article, Robert Nozick and the Question of
Economic Justice, claims that there are problems with Nozicks principle of
rectification. According to him:
The problem is that once a society is operating on other the principles
of entitlement, there is no way to correct: the injustice except by
starting over, which is clearly impossible.111
De Gregori thinks since starting over is cannot be done, the closest proxy
to starting over is to create conditions for equality, 112 so that the disadvantaged
be given assistance in acquiring the social endowments of education, healthcare,
etc,113 and then reverting back to Nozicks principles of justice in acquisition and
transfer. He thinks that Nozick might see this as going too far, to the extent that
110 Nayak, PE-8
111 De Gregori, p.22
112 De Gregori
113 De Gregori
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socialism becomes a punishment for sins.114 However, Nozick also accepts that
past injustices may be so great, that it would necessitate the establishment of a
more-than-minimal state in order to rectify them. This more-than-minimal state
would then redistribute the wealth and perform a more extensive role than
simply protecting individual rights.115
De Gregori says that it is impossible to connect Nozicks theory of
entitlement as justice with an extensive state. The two ideas are complete
opposites, and would thus conflict. This is the problem. On one hand, the
entitlement theory depends on the individual, voluntary transactions, and on the
other, an extensive state is redistributive in nature. How does one reconcile a
principle that argues that man has a right to a property only if he acquired it
through voluntary means with a principle which espouses violating the same right
to property in order to arrive at a state of equality, and more importantly, how
does the former arise from the latter, or is the transition from a temporary
redistributionary situation back to Justice as entitlement possible at all? 116
In short, De Gregori points out a defect in Nozicks principle: that his
principle of justice as entitlement must give way to some other principle of justice
to rectify injustices committed when the former was in effect.
In response to the first part of De Gregoris critique of Nozick, it should be
noted that even in his Principle of Rectification, Nozick does not argue for any
114 De Gregori.
115 De Gregori.
116 De Gregori.
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rectification policy aimed at attaining conditions of equality. As stated earlier in
this chapter, the purpose of rectification for Nozick is only to correct the injustice
brought about by the violation of his principles of just acquisition and transfer,
and to compensate the victim. There is no mention of improving the society
through welfare disguised as attaining a condition of equality, and the idea of
giving assistance to the disadvantaged may only be done if: 1) The recipients of
this policy are direct victims of the injustice committed (which necessitated
rectification in the first place); or 2) If the recipients are not direct victims, a
personal link to the injustice. If neither condition were satisfied, then such policies
are out of the question.
With regards to the second part of his critique of Nozick, it can be said that
while it is true that in rectification, the current order of holdings might be altered
to correct previous injustices, this does not equate to the establishment of a more
extensive state which uses a principle of justice aside from entitlement.
Rectification is an important part of Nozicks theory of justice as entitlement; it is
just that the apparent redistributive nature of rectification is often confused as a
deviation from Nozicks principle of justice as entitlement. In reality, the
apparent redistributive and extensive state does not exist. What really happens
is principle of rectification taking effect. Since rectification is one way of
protecting individual rights against violation through unjust or involuntary transfer,
the principle of justice as entitlement stays in effect, unchanged. It is still the
minimal state that is prevailing in that situation. Therefore, there is no shift from
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a minimal to an extensive state or from justice as entitlement to any other
principle of justice.
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Chapter 4
The intended purpose of the Social Security System
Section 2 of Republic Act 8282 or the Social Security Act of 1997 states that:
It is the policy of the Republic of the Philippines to establish,
develop, promote and perfect a sound and viable tax-exempt social
security service suitable to the needs of the people throughout the
Philippines which shall promote social justice and provide
meaningful protection to members and their beneficiaries against
the hazards of disability, sickness, maternity, old age, death, and
other contingencies resulting in loss of income or financial burden.
Towards this end, the State shall endeavor to extend social security
protection to workers and their beneficiaries.117
It is clear in this passage that the Social Security System is created to
protect the welfare of the people against unfortunate events resulting in sickness,
death and loss of income. It is also stated that the provision of that protection
shall be undertaken by the state, meaning the state would burden the necessary
tasks to meet the aims of Republic Act 8282.
117 Chan Robles and Associates Law Firm. The Philippine Social Security Act of 1997. 2 March 2010,
http://www.chanrobles.com/legal4sss.htm
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Such purpose would go against the role of the state as defined in Nozicks
discussion of the Minimal State. As stated in the earlier chapters, the only
purpose of the state is to provide protection from violations against individual
rights. The protection of ones welfare is the task of individual, as the minimal
state is not concerned with looking after the welfare of its citizens.
In an earlier example that explained why it is the function of the state to
prevent murders, but not to prevent sick people dying from lack of medical care,
it was made very clear that protecting people against murder is a valid state
function because the act of murder is a violation of an individual right. If left
unchecked, it would lead to the violation of the rights of other individuals, while
simply leaving some sick person to die from lack of medical care does not in itself
propagate more rights violations and would thus render state protection of
individual rights unnecessary. Therefore, the act of providing a welfare service for
such ends is not a concern of the state. Individuals are responsible for their own
welfare.
Operation and Powers of the Social Security System
The Social Security System has the power to supersede private property
rights for the sake of national interest. As stated in Section 4 of Republic Act
8282, the Social Security System can:
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acquire and dispose of property, real or personal, which may be
necessary or expedient for the attainment of the purposes of this
Act.118
Furthermore, it can:
acquire, receive, or hold, by way of purchase, expropriation or
otherwise, public or private property for the purpose of undertaking
housing projects preferably for the benefit of low-income members and
for the maintenance of hospitals and institutions for the sick, aged and
disable