Robert Nozick and the Strongest Argument for Property Rights

“It is long past time that we abandon the transcendent appeal to rights as ways to settle more arguments, in part because—following Derek Parfit—it is far more constructive to ask why and which rights matter.”

Introduction

One of the first things to point out is that the argument for vast disparities in property, as Rawls points out, can very quickly assume a strangely illiberal character. This is, in part, because the basic moral outlook of liberalism—defined by thinkers from the authors of the Declaration of Independence through Kant and Will Kymlicka—is that all individuals are moral equals. While imperfectly applied in practice, this outlook has grown exponentially more powerful as history has proceeded, and we have gradually expanded the circle of concern to previous ostracized groups. Given that liberalism holds that we must treat all individuals as moral equals, it, in fact, leads us to the conclusion that (contra Locke and others) deviations from material equality actually prove quite problematic. They cannot be naturalized through appeals to lobster hierarchies and distinctions of rank or worth—as many defenders of inequality seem to contend. It is departures from equality, not departures from inequality, which require justification from a moral (if not natural) point of view. At least if one is a liberal who takes the matter seriously. And I think this applies even more for positions, such as my own, which accept this liberal orientation but contend that it needs to be taken more seriously than classical liberalism has accepted. Given this, it must be asked whether property rights can be justified as a departure from equality. I think the answer is yes—but not nearly to the extent many classical liberals presumed. There are two main defenses of such departures from equality given: Lockean-style moral arguments about entitlement to value and consequentialist claims about the negative implications of engaging in dramatic redistributive efforts.

Nozick’s argument is a brilliant reinterpretation of the Lockean-Kantian tradition of property rights, which confirms him as one of the most interesting political philosophers of the 20th century (taken too soon). Nevertheless, I think his argument is fundamentally flawed in very deep ways.

Robert Nozick and the Minimal State

Lockean-style contentions about such departures have been justified along the lines of the labor theory of value and entitlement. These justifications were often tied to meritocratic claims about the persons who created the value deserving it. However, these arguments were dealt a devastating blow by arguments from Marx through to Rawls, which pointed to severe flaws in such reasoning. First, as Marx never tired of pointing out, if the contention of Lockean defenders of property rights is that those who committed the labor should get the reward, then our society would look dramatically different. Since it is the workers who almost always do most of the actual work (and the bosses contribute relatively little), then it follows that there should be a massive redistribution of wealth from capital to labor. Some have tried to rebut this by appealing not to the volume or time of labor committed—which itself deviates very pronouncedly from the Lockean paradigm—but instead to the qualitative contribution made. But this is highly problematic since, as Rawls points out, our capacity to make qualitatively meaningful contributions is very much determined by morally arbitrary factors in life, for which we can take little personal credit. Even the superior character that will lead some to become doctors and others with equal abilities to become janitors may, very well, flow from fortunate circumstances, which neither individual was responsible for.

The most convincing rebuttal to this position comes from Robert Nozick in his great work Anarchy, State and Utopia. The book famously opens with the unargued assertion that people have rights that cannot be violated. The most important of these is the Lockean/Kantian right to liberty, which Nozick interprets as being systematically protected from interference by any and all others. These rights exist prior to the state and, therefore, cannot be abnegated, even for socially useful purposes. After describing how a minimal state could, nevertheless, legitimately form in such conditions and developing a very interesting critique of utilitarianism, Nozick goes on to discuss property rights. According to Nozick ownership—or justice in holdings—is determined by historical acquisitions, rather than according to any patterned theory of distributive justice. This is because—since the natural rights of individuals are determinative of the parameters of right actions—the key question to ask is whether they were adequately respected in a historical process of acquisitions. In this case, Nozick claims ascertaining whether the acquisition of a holding was just is determined by a three-step process. Firstly, was the holding acquired without coercively violating anyone else’s natural rights? Secondly, if the holding is being transferred from one person to another, is this being conducted in a non-coercive manner? And thirdly, am I free of obligations to redistribute the holding in my possession to compensate for some past injustice? If the answer is yes to all questions, then I am entitled to keep the holding.