Introduction

The American political philosopher Robert Nozick, a libertarian liberal, best

known for his first book Anarchy State and Utopia published in 1974 [1].
Nozick is an advocate for eighteenth century individualism and nineteenth
century capitalism. He is not an anarchist but being influenced by the
individualist-anarchist Murray Rothbard, proposes a form of radical
individualism within a state structure. To Nozick, “the minimal state is the
most extensive state justified” and if the state were to seek wider role than
the narrow function of providing protection against force, theft, fraud and
enforcement of contracts then it is violating individuals rights.

Central to Nozick’s work is individuals’ rights which are evident from his
audacious statement on the preface to his book that “individuals have rights
and there are things no person or group may do to them (without violating
their rights)”. Nozick, in particular, is critical of John Rawls, arguably the
most important political philosopher of the twentieth century whose book, A
Theory of Justice [2], generated more discussion and commentary than any
other book of political and social theory published since World War II.
Central to Nozick’s criticism of Rawls’ theory targets the end-result oriented
methods, but the theory of redistribution, in particular. Nozick absolutely
rejects the idea of redistribution and maintains that it contradicts the idea of
self-ownership. He further stresses that redistribution makes others “a part-
owner of you giving] them a property right in you”. As an alternative to
Rawls’ theory, Nozick suggests his entitlement theory. One of the main
problem with Nozick’s arguments is the “abstractness of the individualism
they presuppose” and individualism, according to Lukes, is a “distorting lens
that satisfies the intellect while simplifying the world”. Nozick attempts to
isolate people with individualism which is contrary to the fact that “people
are constituted by the societies into which they are socialised and live”. This
article will explore Nozick’s theory of justice, justice in holdings, individual
rights and the minimal state as to whether these concepts can stand as
universal theory taking into account the surrounding academic literature.

Rawls’ Theory: “Justice as Fairness”

As Nozick’s Anarchy State and Utopia [1], in part, is a response to Rawls’ A
Theory of Justice [2], it is imperative to consider Rawls’ theory first before
moving on to Nozick’s. Central to Rawls’ A Theory of Justice was the idea
of “justice as fairness” which sets out substantively a version
of democratic social justice. Rawls argues in favour of a more extensive state
where the government is obliged to provide citizens with access to the needs
that are basic to human life and also to look after the welfare of those who
are least well off. This includes state provided welfare education and health
services funded through taxation. By “justice as fairness” Rawls means, the
set of principles that would be selected by persons in the “original position”
from behind a “veil of ignorance” to the basic structure of society [3].
“According to Rawls, two principles of justice would be selected in the
original position:”

a) “Individual citizens are entitled to an equal right to the” “most extensive

scheme of basic liberties compatible with a similar scheme of liberties for
others;” and

b) “Social and economic inequalities are to be arranged so they are both:

i. Reasonably expected to be to everyone’s advantage; and

ii. Attached to positions and offices open to all”.

Rawls’ proposition of justice as fairness represented from the social contract
theory which he defends as the most reasonable and preferable notion of
justice. His main theme is distributive justice: a concern with how goods and
freedoms should be shared in society. To Rawls a distribution is just “if
everyone is entitled to the holding they possess under the distribution”. He
suggests that it is sometimes justified to treat people unequally where
unequal treatment results in improvements for everyone. Therefore, it would
appear from the above that Rawls is concerned with the benefit and welfare
of the society as a whole and in line with achieving this aim taxation is a
legitimate means for the government [4].

Minimal state: The only justifiable state

To begin with, Nozick seeks to justify the minimal state against the
individualist anarchist. He opposes the arguments for a more extensive state
and their idea of distributive justice [5]. To Nozick, the only justifiable state
is the minimum state which does not violate individual’s rights as its
functions are limited to protection of individuals against force, theft, fraud
and enforcement of contracts. He sets out two requirements for a state: (i) an
appropriate monopoly of force in a given territory; and (ii) the provision
of protection by the state within its geographical boundaries.

In the minimal state when disputes arise and enforcement of law is required,
Nozick hypothetically argues, that people might form “mutual protection
associations” in order to defend themselves and to exercise their right to
rectification [6]. Under such an arrangement, all members of the association
are “on call” to defend and enforce the rights of other members meaning that
everyone is always “on call” and any member may call upon any other
member or members for protection. This begs the question if everyone in
real world would be ready to be “on call”. One does not have to be a cynic to
dispute with this notion but a mere depiction of human nature in any context
would serve to disagree with this imaginary Good Samaritan role which is
rather unscrupulous of human nature and behavior. Nozick contends, initially
there may be several protective associations within the same geographical
area. When clients from different agencies enter into dispute and the
agencies cannot agree on how to resolve the matter, they too will enter into
conflict. The result of such conflict will be that over time a natural monopoly
will occur. Eventually there will be only one protective association within a
geographical area: the “dominant protective association [7]”. The evolution
process of the “dominant protective association” invites criticism such as
Nozick is calling for conflict rather that providing a pragmatic solution. The
theory also fails detail whether this dominant protective association would be
private or public entities and whether it would be charging people any fee or
if it is free of cost. Ironically, Nozick does not consider how the state comes
about. He opines, self-interest in his state of nature will ultimately give rise
to the state. A critical mind would stop short of acceding to this claim as to
how self-interest could give rise to a state, if at all. Even if one were to defer
to this involuntarily for the sake of an argument, would it not lead to chaos
and conflict similar to the events from which the dominant protective
association evolve albeit a much greater magnitude of chaos and conflict
would ensemble prior to the evolution of the state which Nozick indicated.

The entitlement theory

Having disregarded the theory of distributive justice, Nozick, influenced by
Locke, puts forward his “entitlement theory” of justice. According to
Nozick:

“If the world were wholly just, the following inductive definition would
exhaustively cover the subject of justice in holdings. (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 principle of justice in transfer, from someone else entitled to the
holding, is entitled to the holding. (3) No one is entitled to a holding except
by (repeated) applications of 1 and 2”.

To put it simply a person’s holdings are just if acquired through (1) just
original acquisition or (2) just transfer or (3) through rectification of
injustices in the two senses.

Justice in acquisition: “Justice in acquisition” maintains that a person who

acquires a holding justly is entitled to that holding, i.e. how things that were
previously not owned by anyone can be acquired by an individual [8].

According to Nozick, the initial act of appropriation confers

unlimited rights of use and disposition. When asked how the bearers obtain
their property, Nozick answers, it is a historical process. He struggles to
define in specifying precisely which of several initial methods of initial
acquisition is to be preferred. His inclination to Locke’s labour theory of
property acquisition is evident. According to Locke, a limit had to be placed
upon the amount of resource that could be extracted from the nature by
anyone, “enough and good” had to be left for others to secure. Nozick
attempts to reformulate this limit in terms of a certain welfare baseline. He,
however, fails to mention where this baseline needs to be fixed. The starting
point that Locke made was that the earth is a common property whereas
Nozick attempts to explain how what is unowned can become private
property. One may strongly argue that this acquisition principle is not fitting
in this modern technological world; and it seems to justify earlier injustices
or at least apply to highly disputable methods [9].
Justice in transfer: According to “justice in transfer,” a person who
acquires a holding justly in transfer from another who is entitled to that
holding is entitled to that holding, i.e. how ownership and possession of
property can subsequently be transferred from one person to another,
provided that the transfer is just and the individual is entitled to the holding
(purchase, gift and so on) [10]. Nozick, most evidently, has failed to give an
exact definition of what he actually meant by the term “justice” in “justice in
transfer”. Is one to take the general meaning of justice or is it that a special
meaning applies as far as it concerns “justice in transfer”. There may be
instances of transfer where one party believes it was a just transfer whereas
the other party in the transfer feels it was unjust on them and that they would
not have conceded to the transfer had they not been the weaker of the two
parties given the increasing influence of the dominant party to keep everyone
quiet. Nozick falls far too short to provide a solution for such an instance
[11].

Justice in rectification: Justice in rectification involves past injustices

arising from failure to fairly apply the first two principles properly that can
be put right, i.e. failure to apply principle (a) or (b) can be rectified using this
principle [12].

Even the briefest survey of human history reveals that the current
distribution of property is as much the consequence of theft and conquest as
it is the product of libertarian entitlement. Nozick explains, historical
entitlement is subject to the principle of rectification which attempts to use
historical information to reproduce “what would have occurred… if injustice
had not taken place”. While many injustices can be traced, many others are
buried and forgotten and hence the principle has very limited application
unless it is assumed that the least well off are most likely to have been the
victims of historical injustice. Nonetheless, an attempt to rectify past
injustices can affect ‘innocent’ owners and undermine the certainty of legal
title, suggesting that claims for rectification might be barred beyond a
stipulated period of time. A commentator argues that the rectification
principle is almost ridiculous hit in Nozick’s own theory-it could lead to
dictatorship and to very endresult determined societies. It may, therefore, be
submitted that with its temporary application, the rectification principle lacks
the criteria to be a universal one [13].

Nozick’s theory on justice in holdings attracts numerous questions such as

whether the term justice here is meant only in the legal sense or if it includes
other forms of justice i.e. social justice, economic justice among others. This
begs yet another question whether the meaning of justice remains unchanged
throughout the entitlement theory and its three sub-divisions or whether the
meaning of justice is specific to every sub-heads of the entitlement theory. It
would appear from the above that Nozick may have attempted to redefine
“redistribution” and replace it with “entitlement theory,” unfortunately it has
given rise to a lot of vexed questions without adequate answers.

Rights as Trumps
Nozick, in general, contends that people are born
with fundamental individual rights. These individual rights are paramount
and that there is no need for a system to achieve moral equilibrium. He
rejects all end-result theories, i.e. distributive theories such as Rawls theory
of justice. Nozick rather adopts the 18th century philosopher Immanuel
Kant’s principle of “individual inviolability” that cannot be violated as a
means to achieve particular ends, meaning the significance of each person’s
possessions of self-ownership is that people should not be used as resources
or a means of achieving some end and this is exactly what Rawls proposes to
do, Nozick criticizes [14]. It is wrong to treat people as if they are merely of
instrumental worth or to sacrifice one person for another. He claims that the
rights of others determine constrains on our actions.

According to Nozick, the “classical liberal” view is that the right of people to
control their bodies and actions is a property right, the right of self-
ownership. He further argues for his entitlement theory where it is
permissible for people to have and hold property on however an unequal
basis provided it was acquired legitimately in the first place. Thus, if
someone acquired a holding justly, any interference with his holdings i.e. via
imposition of tax, would violate his rights. Nozick claims, a redistributive
system invades that right making others “a part owner of you giving them a
property right in you”. Thus, a redistributive system institutes partial
‘ownership by others of people and their actions and labour’. Consequently,
he argues that taxation of labour income is “on a par with forced labour
[15]”.

Is imposition of taxation tantamount to forced labour?

Abramson points out, Nozick’s claim demonstrates its weakness as he notes

that some persons find “absurd” the claim that “taxation from earnings of
labour is on a par with forced labour…taking the earnings of n hours is like
taking n hours from the person; it is like forcing the person to work n hours
for another’s purpose [15]”. He further emphasises on the point that labour
considerations are not forced by the need to earn so that one can pay tax
rather one earns and pay whatever tax turns out to be due. Labour precedes
taxation, one labours and pays tax and not the vice versa. Thus, Nozick’s
claim that taxation is on par with forced labour is dismissed. To Elliot,
Nozick’s admission is revealing and in line with that he claims that Nozick
himself is aware that his assertion is unconvincing and that “Nozick signals
that he is not prepared to unyieldingly support his theory that taxation from
earnings of labour is on a par with forced labour”.

Rawls’ versus Nozick’s distribution theories

In criticism of Rawls, Nozick argues that Rawls in his theory, “justice as

fairness,” invocates a group in his original position instead of individuals.
Nozick disregards Rawls’ theory as he thinks the latter’s theory favours the
lower spectrum of the society and causes inequality in terms of the average
gains made by different people as less endowed gain more than the talented
[16]. He states that Rawls’ original position only lets one to consider the
results of distribution but not how it came about. Rawls’ theories of
redistribution or “patterned” theories as Nozick calls it, he believes, it
involves interference with individual liberties. On the contrary, Nozick
proposes distribution according to intellect and as such the more the
intelligent the more he gets. Any group or individuals that control resources
and allocate shares interfere with the recipient’s lives.

As regards Nozick’s strongest of oppositions against redistribution, many

philosophers and academics are very critical of him. The very person who
Nozick is influenced by, Locke, suggests that taxes should be levied in
“proportion” to the property protected by the state. According to Adam
Smith, “the subjects of every state ought to contribute towards the support of
the government… in proportion to the revenue which they subjectively enjoy
under protection of the state”. Epstein, a libertarian, endorses the idea of
broad-based or comprehensive income tax on the basis that “everything of
value protected by government is subject to taxation”. In consequence, it
appears that libertarian principles can be relied upon to support all major
taxes. Then why not Nozick’s?

However, Stein argues that Nozick disregards any consideration of social

utility in Anarchy State and Utopia [1]. Stein contends Nozick’s
redistribution as immensely burdensome, not providing very great benefits
and that he would object to redistribution even if it relieved enormous
suffering among the poor and imposed only the most negligible of burdens
on the rich. He further criticises Nozick pointing at his admission in the
preface to Anarchy State and Utopia that he “does not present a precise
theory of the moral basis of the individual rights,” and that Nozick does not
tell the origin of these stringent rights on which he relies upon [1]. Since
Nozick is willing to find hidden elements in opposing theories, he cannot, in
principle complain when others do the same to his theory and so Nozick’s
failure to mention the origin of these stringent rights may open the door to an
argument that the appeal of those rights is ultimately not based on
considerations of aggregate well-being.

It is important to recognise that taxes may be collected both to redistribute

economic resources and to finance public goods and services; this is a dual
role that public finance theory has long recognised by distinguishing between
the “distribution function” and the “allocation function” of the public sector.
Nozick, therefore, is mistaken to have made redistribution the only basis to
refute taxation [17]. Christian criticises Nozick for he does not consider
“alternative systems of property rights…that would make certain persons
better off than under a system of full private ownership”. Nozick is so
opposed to redistribution that a commentator questions whether Nozick is
prepared to see people starve to death and obviously so as it appears, if the
only alternative is redistribution. An argument can be put forth in the sense
that Nozick reaches universal conclusions from individual motivations
without fully considering possible universal implications and that he too
easily reaches the point of arguing for absolute rights for freedom of action
and from coercion, yet with minimum safeguards for the community.

A Libertarian Argument in Favour of the Minimal State

Nozick argues that the minimal state is the only morally justifiable
form of government. This contention rests upon his understanding of
the separateness of each person, the existence of inviolable rights, and
the side constraint that these rights impose on the behaviour of others.
Nozick claims that persons are rational, they are moral agents, and they
have free will. In addition, they have the ability to regulate and guide
their lives in accordance with some overall conception of their choice.
Nozick states:
[A person is] a being able to formulate long term plans for
its life, able to consider and decide on the basis of abstract
principles or considerations it formulates to itself and hence
not merely the plaything of immediate stimuli, a being able
to limit its own behaviour in accordance with some
principles or picture
2 Pataki, note 1.
 it has of what an appropriate life is for itself and others and
so on.3

When a person shapes her or his life in accordance with some overall
plan, that person gives meaning to her or his life.4 Persons, as such,
are separate entities capable of determining the meaning and direction
of their lives. Put slightly differently, we are all separate existences
capable of leading separate lives.5 According to Nozick, the
significance of each person’s possession of self-ownership is that
people should not be used as resources or as a means of achieving
some end. It is wrong, he states, to treat people as if they are merely of
instrumental worth, or to sacrifice one person for another. 6
The separateness of each person means that each person’s body and
liberty are separate and distinct from those of others. They belong to
each person and not to someone else. As such, Nozick states, only
each person has the right to decide what happens to her or his life,
body, liberty or property. Being inviolable and exhaustive, these rights
are absolute.
Nozick claims that the rights of others determine the constraints on
our actions.7 That is, a person’s rights are not merely superficial
claims that can be overridden. Rather, they are boundaries not to be
crossed without the free consent of the person whose rights they are.
Elaborating on this, Nozick writes:
[T]hat there are different individuals with separate lives and
so no one may be sacrificed for others, underlies the
existence of moral side constraints, but it also leads to a
libertarian side constraint that prohibits aggression against
another.8

Therefore, a person cannot violate the rights of others through either

interference or aggression. Nor can a person infringe upon other

3 Nozick R, Anarchy, State and Utopia, Blackwell, Oxford, 1974,

p 49.
4 Nozick, note 3, p 50.
5 Nozick, note 3, p 33.

Volume 9 – 2005 - 169

 6 Nozick, note 3, p 33.
7 Nozick, note 3, p 29.
8 Nozick, note 3, p 33.

- 170 Southern Cross University Law Review

people’s rights in the pursuit of some object or goal, even if that goal
is to achieve an overall minimisation of the violation of rights.9 It is
on this basis, therefore, that Nozick rejects utilitarianism.
Nozick asserts that a person’s rights are so strong and far-reaching
“they raise the question of what, if anything, the state and its officials
may do.” In Anarchy, State and Utopia Nozick considers this issue.
Is it possible, he asks, to justify the existence of a state? If so, what are
the limits on the state’s exercise of its coercive power? Alternatively, is
anarchy the only available option?
Nozick commences his treatment of these questions by stating that if
having government is superior to the most favourable state of anarchy
then the existence of the ‘state’ is justified. The best possible state of
anarchy that could reasonably be hoped for is one in which people had
the freedom to do as they chose, but nevertheless restrained their
actions in such a way that they respected the rights of others. In the
Lockean “state of nature”, for example, anyone can do what he or
she wants so long as it is within the bounds of the laws of nature. 10
The laws of nature hold that no one may harm another in health, life,
liberty or possessions. They also hold that a person has a right of
self- defence against those who would transgress those rights. When
such transgressions do occur, Nozick notes, individuals have a right
of rectification.
Although Nozick agrees that people have a right of self-defence he
considers that, as a result, there are a number of difficulties with the
Lockean “state of nature”.11 Nozick explains that in the “state of
nature” the understood natural law may not provide for every
contingency. Given the potential ambiguity of the natural law with
regard to some circumstances, it is possible that in judging their own
cases people will give themselves the benefit of the doubt and assume
they are correct.12 Nozick states: “they will overestimate the amount
of harm or damage they have suffered, and passions will lead them to
attempt to punish others more than proportionately and to exact
excessive compensation.” That is, in exercising their right of self-
defence, people will often be emotional and exceed the scope of such

9 Nozick, note 3, p 29.

10 Nozick, note 3, p 10.
11 Nozick, note 3, p 11.
12 Nozick, note 3, p 11.
right. In turn, this will lead to further retaliation and feuds. Without a
firm means of settling such disputes, these feuds will be ongoing. On
the other hand, if people lack the power or ability to enforce their
rights, they may be unable to exact compensation when those rights
are transgressed.13
How might this situation be resolved? Nozick answers that, for various
reasons including friendship or the recognition that in unity there is
strength, groups of people might form “mutual protection
associations” in order to defend themselves and to exercise their right
to rectification. Under such an arrangement, all members of the
association are “on call” to defend and enforce the rights of other
members.14 However, this means that everyone is always “on call”,
and any member may call upon any other member or members for
protection. Nozick writes: “protective associations will not want to be
at the beck and call of their cantankerous or paranoid members, not to
mention those of their members who attempt, under the guise of self-
defense, to use the association to violate the rights of others.”15
Protection associations might resolve these problems through the
division of labour (that is, someone would be paid to provide
protection services and others would sell it), and by adopting a
procedure to determine the validity of claims. While this might go
some way to resolving intra-agency disputes, it would not provide for
the difficulties involved in conflicts between associations.16
Nozick argues that initially there may be several protective associations
within the same geographical area. When clients from different
agencies enter into dispute and the agencies cannot agree on how to
resolve the matter, they too will enter into conflict. The result of such
conflict will be that over time a natural monopoly will occur.
Eventually there will be only one protective association within a
geographical area: the dominant protective association.17

13 Nozick, note 3, p 12.

14 Nozick, note 3, p 12.
15 Nozick, note 3, p 12.
16 Nozick, note 3, p 16. Nozick notes that there will also be a
problem with resolving disputes that arise between members.
He states that this can be resolved if associations do not
provide protection against counter-retaliation when a client
 privately enforces his or her rights against some other member
but that this reduces intra-agency enforcement of rights to a
minimal level.
17 Nozick, note 3, p 16.
The dominant protective association will occur because unless an
oligarchy is formed (under which all agencies within a region operate),
the protective associations cannot co-exist.18 The relative worth of the
product offered by each agency depends on its strength. Unlike other
goods and services, the agencies compete for clients and enter into
violent conflict when disputes arise between their clients. All its
customers will eventually leave an association that most often loses,
and join a stronger association. 19 Alternatively, if agencies are
stronger in different geographical areas, a boundary will be established
dividing the different areas for which the associations are res-
ponsible.20
The dominant protective association, although similar, is not a state. A
state, Nozick writes:
[C]laims a monopoly on deciding who may use force and
when; its says that only it may decide who may use force
and under what conditions; it reserves to itself the sole right
to pass on the legitimacy and permissibility of any use of
force within its boundaries [and] claims the right to punish
all those who violate its claimed monopoly.21

Under a minimal state (the night-watchman state), all citizens receive

protection. The minimal state protects everyone against violence,
theft and fraud, and it provides for the enforcement of matters such
as contracts.
In contrast, the dominant protective association does not protect
everyone (since some people may choose not to join), and it allows
some scope for the private enforcement of rights. 22 An ultraminimal
state differs from this situation only in so far as it claims a monopoly
over the use of force except that which is necessary for immediate
self- defence.23 Under both the dominant protective association and
the ultraminimal state there will be individuals who do not purchase

18 Nozick, note 3, p 17.

19 Nozick, note 3, p 16.
20 Nozick, note 3, p 16.
21 Nozick, note 3, p 23.
22 Nozick, note 3, p 23.
23 Nozick, note 3, p 26.
protection, and who reserve (and act on) their right of self-
protection. As with the anarchic state of nature these individuals,
influenced by emotion, selfishness or revenge, may exceed the decrees
of natural law when exercising their right of self-protection and
demand excessive rectification. This is problematic.
It might be said that the ultraminimal state does not face this difficulty
since it claims a monopoly over the use of force. There is, however, an
inconsistency in this since if the protection of rights is the sole
concern of this type of government, it acts contrary to its legislative
function and purpose when it leaves some people’s rights
unprotected.24 This can be resolved if the ultraminimal state offers
protection without cost to those whom it prohibits from exercising
self-defence but who wish to retain this right. In doing so, however, it
becomes a minimal state.
On account of the difficulties associated with the state of nature,
Nozick claims that anarchy naturally gives way to either a dominant
protective association or ultraminimal state. In turn, these also give rise
to the minimal state. Nozick explains that this progression occurs, even
though unintended, similarly to how a pattern may be produced
without having a pattern in mind.25 On account of this (and given the
fact that it provides protection for all), Nozick concludes that the
minimal state is preferable to either anarchy or the ultraminimal state.
However, having said this, is the minimal state morally legitimate? It
might be argued that unless everyone pays for the protection provided
by the minimal state, those who pay are being forced to subsidise the
protection received by others.26 This amounts to redistribution and
is a violation of people’s property rights. Nozick notes that although
the minimal state appears to be redistributive, it is not. The minimal
state, he argues, may prohibit self-protection in order to protect the
rights of others. In return it is able to compensate for the loss of the
right of self-defence by providing protection. Therefore, the action of
the state is compensatory not redistributive.27

24 Nozick, note 3, p 29.

25 Nozick, note 3, p 18: The invisible hand explanation.
26 Nozick, note 3, p 25.
27 Nozick, note 3, p 67.
Although the state can provide for the protection of people’s rights it
cannot legitimately exercise its political power in any other way.
This is because the existence of a state can only be justified when it
constitutes a minimal political authority. If the state were to seek a
wider role than the narrow function of providing protection, it would
interfere with the liberty and property of its citizens and in so doing
contravene their absolute rights. Nozick writes:
Our main conclusions about the state are that a minimal
state, limited to the narrow functions of protection against
force, theft, fraud, enforcement of contracts, and so on, is
justified; that any more 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. Two noteworthy implications are that the state may
not use its coercive apparatus for the purpose of getting
some citizens to aid others, or in order to prohibit activities
to people for their own good or protection.28

The Liberal-Egalitarian Argument in Favour of the Welfare

State
In contrast to Nozick, others argue in favour of a more expansive state.
They claim that government is obliged to provide citizens with
access to those things that are basic to human life (should they
choose to accept them from the government), and to look after the
welfare of those who are least well off. Rawls, for example, argues
in favour of ‘big’ government (including expansive state provided
welfare, education and health services funded through taxation) on
the basis that it is sometimes justified to treat people unequally
where unequal treatment results in improvements for everyone (most
especially the least well off).
Rawls defines society as “a more or less self-sufficient association of
persons” undertaken as a cooperative arrangement for the purpose of
mutual advantage.29 By forming an association and acting in
cooperation, those who belong to society can obtain benefits they
would not be able to achieve if they were acting on their own. Rawls

28 Nozick, note 3, p ix.

29 Rawls J, A Theory of Justice, revised ed, Oxford University
Press, Oxford, 1999, p 4.
observes that this creates a “convergence of interests” but that it can
also lead to disputes, since it is possible for people to disagree over
how mutual benefits and the burdens incurred in obtaining such
advantages are to be distributed. 30 Because of the scope for conflict,
Rawls argues that well-ordered society must be guided by a set of
related principles providing for the assignment of benefits, burdens,
rights, and duties. When these principles effect a proper distributive
balance within society, and are agreed upon and publicly affirmed by
all citizens, they constitute what Rawls defines as a public
conception of justice.31
Rawls claims justice is “the first virtue of social institutions”. 32 The
principles encapsulated within public conceptions of justice apply to
the basic structure of society. That is, they govern the functions and
interrelationships of a society’s basic institutions, and determine how
these institutions make distributive decisions as to the assignment of
rights and duties.33 In providing for the assignment of rights and
duties, public conceptions of justice determine the scope of
government, and indicate the circumstances within which government
might legitimately exercise state power.
Rawls proposes a conception of justice called “justice as fairness”:
he abstracts it from social contract theory, and defends it as the most
reasonable and preferable conception of justice possible. By “justice
as fairness”, Rawls means the set of principles that would be selected
by persons in “the original position” to regulate society. “The
original position” is a hypothetical situation in which rational but
mutually disinterested individuals, capable of a sense of justice and
concerned to further their own interests, select, from behind a “veil of
ignorance”, principles of justice applicable to the basic structure of
society.
The “veil of ignorance” means that persons in the hypothetical
original position are unaware of such things as their wealth,
intelligence, social standing or conception of good.34 As a result they
are unable to predict what effect their decisions will have on their own

30 Rawls, note 29, p 4.

31 Rawls, note 29, p 8.
32 Rawls, note 29, p 3.
33 Rawls, note 29, p 11.
34 Rawls, note 29, p 11.
life circumstances. If individuals in the original position choose
distributive principles that benefit some but disadvantage others, they
cannot be sure whether they will be favoured or whether they will be
disadvantaged. Rawls argues that because of this they will select
principles beneficial to all.
Since no one is able to select principles designed to be in her or his
own favour, persons in the original position are in an initial position of
equality. The principles they choose will be free from bias and the
result of a fair agreement. It is on this basis that Rawls asserts that a
society which satisfies the requirements of “justice as fairness”
comes as close as possible to being a scheme of cooperation to which
free and equal persons, under circumstances that are fair, would
assent.35
According to Rawls, two principles of justice would be selected in the
original position. Those two principles would be:36
(1) Individual citizens are entitled to an equal right to the “most
extensive scheme of basic liberties compatible with a similar
scheme of liberties for others.”
(2) “Social and economic inequalities are to be arranged so they are
both (a) reasonably expected to be to everyone’s advantage, and
(b) attached to positions and offices open to all.”

The first principle requires equality in the assignment of basic rights,

and guarantees various liberties such as freedom of speech, political
liberty, and liberty of conscience.37 The second principle applies to
the distribution of wealth and authority. It states that while the
distribution of income and power does not have to be equal, it must
result in compensating benefits for everyone, and it must occur in
such a way that the least advantaged gain the greatest benefit.38 This is
known as “the difference principle”.39 In addition, the second
principle requires that positions of authority and responsibility be
accessible to all under conditions of fair equality of opportunity.

35 Rawls, note 29, p 12.

36 Rawls, note 29, p 13 and 53.
37 Rawls, note 29, p 53.
38 Rawls, note 29, p 65.
39 Rawls, note 29, p
These two principles of justice are subject to a lexicographical
ordering in which the first is given priority over the second. 40 This
means that the liberties protected by the first principle must not be
infringed on the basis that doing so will result in improved overall
social and economic conditions.
Rawls states that justice as fairness requires procedural justice in the
handling of any particular situation, and that procedural justice occurs
within the context of a social system designed to ensure that the
resulting distribution (derived outcome) is just.41 Rawls means that
not only do the two principles of justice require procedural justice, but
also they demand what he calls “background fairness”. This occurs
when there is “a properly organised democratic state that allows
private ownership of capital and natural resources.”42
A properly organised state conforming to “justice as fairness” is one
in which the basic structure of society is regulated by a just
constitution securing the liberties of equal citizenship.
[In such a society] liberty of conscience and freedom of
thought are taken for granted and the fair value of political
liberty is maintained. The political process is conducted, as
far as circumstances permit, as a just procedure for
choosing between governments and for enacting just
legislation.43

Justice as fairness also requires that there is fair, as opposed to

formal, equality of opportunity. This means, Rawls states: “in
addition to maintaining the usual kinds of social overhead capital, the
government tries to ensure equal chances of education and culture for
persons similarly endowed and motivated either by subsidizing private
schools or by establishing a public school system.”44 The
government must also enforce equality of opportunity in economic
activities and employment. This is to be achieved by “policing the
conduct of firms and private associations and by preventing the
establishment of monopolistic restrictions and barriers to the
more desirable

40 Rawls, note 29, p 55.

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Rachael
Patterson
41 Rawls, note 29, p 243.
42 Rawls, note 29, p 243.
43 Rawls, note 29, p 243.
44 Rawls, note 29, p 243.

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positions.” Finally, government needs to guarantee a social minimum
either by making available family allowances and welfare payments for
illness or unemployment, or by more systematic devices such as a
graded income supplement.45

Nozick on Rawls
Rawls’ idea of the role and nature of government as required by
“justice as fairness” is vastly different to that envisaged by Nozick.
This is due to their very different understandings of justice and the
relationship between equality and liberty.
In competition with Rawls’ “justice as fairness”, Nozick proposes
“an entitlement theory of justice”. Nozick claims:
[If the world] were wholly just, the following inductive
definition would exhaustively cover the subject of justice in
holdings:
(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
principle of justice in transfer, from someone else entitled
to that holding, is entitled to the holding.
No one is entitled to a holding except by (repeated)
applications of 1 and 2.46

In summary then, a distribution is just “if everyone is entitled to the

holdings they possess under the distribution.” 47 Whether or not this
is the case depends on whether the principle of justice in acquisition
and the principle of justice in transfer have been satisfied.
The principle of justice in acquisition deals with such matters as how
unheld things may come to be held, and the process by which this
occurs. Nozick states this principle is complicated, and declines to give
a more precise formulation. However, he notes that it does include the

45 Rawls, note 29, p 243.

46 Nozick, note 3, p 151.
47 Nozick, note 3, p 151.
Lockean proviso, namely, a person’s entitlement to an acquisition
depends in part on there being “enough and as good left in common
for others.”48
The principle of justice in transfer “specifies the legitimate means of
moving from one distribution to another.”49 The final principle, that
of exhaustiveness, holds that the only means by which a person is
entitled to property within her or his possession is if:
(1) The property was initially acquired by just means; or
(2) The property was justly acquired from someone else who had
just possession of it.

The entitlement theory of justice is historical and unpatterned. It is

historical in so far as it takes into account past actions and
circumstances in determining whether a particular distribution is just.
It is unpatterned because it does not require distribution to occur in
correlation with some natural dimension or ordering such as merit or
need. On the other hand, Rawls’ “justice as fairness” is both a
patterned and an end-state theory of justice. It holds that just
distributions are to be determined by some ordering or natural
dimension as well as in accordance with structural principles of
justice.50
Nozick notes that Rawls’ conception of justice is incapable of yielding
a historical theory of justice since it depends on the original
position.51 People “[in the] original position either directly agree to
an end-state distribution, or they agree to a principle; if they agree to a
principle they do it solely on the basis of end-state considerations.”
As such, “the fundamental principles that they agree to … must be
end-state principles.” 52 Since Rawls’ approach excludes the
possibility of persons in the original position ever endorsing a
historical theory of justice, if it can be shown that any historical theory
is correct then Rawls’ approach is wrong.

48 Nozick, note 3, p 177.

49 Nozick, note 3, p 151.
50 Nozick, note 3, p 153.
51 Nozick, note 3, p 202.
52 Nozick, note 3, p 202.
 The Minimal State v the Welfare State:
A Critique of the Argument between Nozick and
Rawls
Nozick also criticises Rawls’ theory on the basis that it is a patterned
theory of distribution. He states that any given pattern in society may
be changed through voluntary exchanges and gifts. Where voluntary
acts of giving disrupt a perfectly just pattern of distribution, it follows
(if a patterned theory of justice is upheld) that such acts are unjust.
However, this alters the concept of possession, and also ignores the
fact that an integral part of self-ownership is the liberty to give things
to other people. Nozick writes:
The view that holding must be patterned perhaps will seem
less plausible when it is seen to have the consequence that
people may not choose to do acts that upset the patterning,
even with things they legitimately hold.53

Nozick notes that on hearing the term “distributive justice”, people

often presume that there is one principle or mechanism that effects
distribution within society. There is, however, “no central distribution,
no person or group entitled to control all the resources, jointly
deciding how they get doled out. What each person gets, he gets from
others who give to him in exchange for something, or as a gift.” 54
This means, Nozick argues: “if things fell from heaven like manna,
and no one had any special entitlement to any portion of it [then] there
might be a more compelling reason to search for a pattern.” However,
“since things come into existence already held (or with agreements
already made about how they are to be held), there is no need to
search for some pattern for unheld holdings to fit; and since the
process whereby holdings actually come into being or are shaped,
itself needn’t realize any particular pattern, there is no reason to
expect any pattern to result.”55 Thus, in Nozick’s view, there is no
need for Rawls’ patterned theory of justice.

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Rachael
Patterson
53 Nozick, note 3, p 219.
54 Nozick, note 3, p 149.
55 Nozick, note 3, p 198.

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Who is correct, Nozick or Rawls?
At the heart of the conflict between Nozick and Rawls is a
disagreement over the relative priority to be accorded to liberty and
equality. For Nozick, liberty will always be of the utmost concern in
justice and to the state. Equality, he notes, is irrelevant in
determining whether or not a just distribution of property has been
achieved. Rather, what matters is whether or not a holding was
acquired by legitimate means. If it was, then the distribution is just.
Accordingly, it will be unjust for anyone (including the state) to
deprive a person of such a holding even if this is done in order to aid
another person. As such, systems of taxation for the purposes of
redistribution and social welfare are unjust since they amount to the
imposition of forced labour. This is contrary to an individual’s rights
of liberty of body and property: that is, an individual’s right not to be
forced to do certain things.
Rawls, on the other hand, allows the government to prioritise
equality over liberty when the results of doing so may be reasonably
expected to be to everyone’s advantage: provided, however, that a
person’s most basic rights are not involved. An individual’s basic
rights are provided for under Rawls’ first principle of justice and can
never be subjugated to equality. Anything contrary to this would
transgress the demands of “justice as fairness”.
Whether Nozick’s argument in support of a minimal state, and
against Rawls’ theory of justice, ultimately succeeds depends on
whether or not he is correct in assuming that the holdings that a
person has justly acquired can be held without regard for the needs or
claims of others (except claims created by contract). Finnis, for
example, argues:
If we see no reason to adopt his assumption that the goods
of the earth can reasonably be appropriated by a few to the
substantial exclusion of all others, and if we prefer instead
the principle that they are to be treated by all as for the
benefit of all according to the criteria of distributive
justice … then the question of [the legitimacy of] State
coercion, which dominated Nozick’s argument, becomes in
principle of very secondary importance. 56
56 Finnis J, Natural Law and Natural Rights, Clarendon Press,
Oxford, 1980, p 187.
This is so because if the rights of property and liberty are not as
absolute as Nozick presumes, then by effecting redistribution through
taxation the government may simply be doing no more than enforcing
the various duties that property holders already have.57
Is Nozick wrong in assuming that a person’s right over her or his
property is absolute, and that he or she is not obliged to assist others?
Nozick grounds his arguments in favour of an absolute right to
property on the separateness of every person. Although Nozick is
correct in holding that people should not be used as resources or
means of achieving some end, this does not conclusively preclude
people from being under positive duties to assist others through
material contribution to their welfare. Consider, for example, that
Nozick concedes that the need to respect the liberty of others places
limits on a person’s ability to exercise liberty in doing what he or she
wants, whenever and wherever he or she wants. Similarly, it can be
argued that if unheld property is of a common or public nature before
acquisition, that is, before it is mixed with labour, then there is a need
to compensate others for their loss of interest in these previously
public or common goods. This, it might be said, acts as a constraint on
people’s ability to fully exercise their right to property such that they
ought to provide in some way for the welfare or needs of others.
Having said this, the author is not suggesting agreement with the
justification given by Rawls in favour of the welfare state, but only
noting that Rawls’ argument in favour of the welfare state has not
been fatally undermined by Nozick’s critique in the way he might
have hoped.
Rachael
Patterson
57 Finnis, note 56.

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