A CRITIQUE OF THE SOCIAL SECURITY SYSTEM USING ROBERT NOZICK’S IDEAS OF THE MINIMAL STATE AND...

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
http://en.wikipedia.org/wiki/Social_securityhttp://en.wikipedia.org/wiki/Social_security


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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

A CRITIQUE OF THE SOCIAL SECURITY SYSTEM USING ROBERT NOZICK’S IDEAS OF THE MINIMAL STATE AND...

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