The Just and Good State: Rawls and Nozick Read Anew

The Just and Good State: Rawls and Nozick Read Anew GEORGE

NO SINGLE WORK in modern times has attracted more aiientiuii in the academic intellectual community than John Rawls’ A Theory of Justice.l Published in 1971, it has been and continues to be the subject of numerous symposia at national and regional meetings of philosophers, political scientists, lawyers, and economists. Approximately one hundred full length reviews and critiques of the work have appeared in philosophy and social science journals. The June 1975 issue of the American Political Science Review alone contains seven iengthy reviews of the book. At about this time, in response to what we must assume to be a market demand, a collection of fourteen critical essays dealing with A Theory of Justice was published under the title, Reading And to this we must add Brian Barry’s The Liberal Theory of JUStice: A Critical Examination of the Principd Doctrines in A Theory of Justice b y John R a w l ~ ,an ~ exhaustive critique of Rawls’ theory, and numerous other works such as Robert Nozick’s Anarchy, State, and U t ~ p i a major ,~ portions of which deal explicitly with Rawls’ work. Needless to say the book is standard fare on campuses across the country in political science and philosophy courses. Aware only of these facts, one might assume that Rawls has written a major modern classic. But a careful reading of the book will certainly lay to rest any such assumption; if, that is, one can stand the sheer tedium of plodding through its 600 pages. We join in the judgment of Robert Nisbet who has written of Rawls’ book:

W.

CAREY

I do not know when I have read a book so dense in its rhctoric, so thicket-like in the form of its argument. One has the feeling that the book was not so much written as accumulated over the years, like some of the old mansions of the South.6

I RAWLS’ theory can be reduced to certain essential elements. Utilizing the basic framework of contractualism (?I la Hobbes, iocke, or Rousseau 1, Rawis situates individuals in what he terms the “original position” which is best understood, for reasons we will see, as a very special kind of “state of nature.” The original position, as Rawls reminds us throughout, is only hypothetical; it is a philosophical device of sorts that facilitates the construction of a more complex and systematic theory. The primary end of Rawls’ theory is “justice as fairness,” the major principles of which emerge from the deliberations and unanimous consent of the free and equal parties in the original position. These principles, in turn, are to be “general,” binding on the parties to the contract, publicly known, and, in their application to particular situations, they must yield results which conform with our sense of justice. They will also serve as guides for structuring institutions and determining the substance and goals of public policy. Now, the individuals in this original position are to choose these principles of justice “behind a veil of ignorance.” This

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introduction of a veil of ignorance represents an obvious departure from traditional contractualism and is, as we shall see, one of more controversial features of Rawls’ theory. We do best to quote Rawls in describing this veil: It is assumed , . . that the parties do not know certain kinds of particular facts. First of all, no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism. More than this, I assume that the parties do not know the particular circumstances of their own society. That is, they do not know its economic or political situation, or the level of civilization and culture it has been able to achieve. The persons in the original position have no information as to which generation they belong6 What is it, then, that those in the original position do know? We quote again:

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It is taken for granted . . that they know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology. Indeed, the parties are presumed to know whatever general facts affect the choice of the principles of justice. There are no limitations on general information, that is, on general laws and theories, since conceptions of justice must be adjusted to the characteristics of the systems of social cooperation which they are to regulate.

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me express purpose for using this veil of ignorance, another of the philosopher’s many devices, is to employ the “notion of

pure procedural justice as a basis of theory. Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage.”s Those in the original position are constrained, because of the veil of ignorance, to yield up someihing akin to Rousseau’s “general will” because partial and individual interests will, perforce, have no input. However, Rawls, despite this rather obvious p a r d e l to Rousseau’s theory, takes pains to associate the conditions of the original position with “Kant’s conception of autonomy and categorical imperati~e.”~ Another salient and controversial element of Rawls’ basic theory is his assumption that those in the original position will follow the “maximum rule” or a modified version thereof. “The maximum rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others.”‘O The meaning and implication of this rule will be clearer once we turn to the two principles of justice which emerge from the original position. However, what is important to note at this point is that the maximin rule is a departure from the utilitarian principle, the greatest happiness for the greatest number. In this respect, and a fact which cannot be overemphasized, one of Rawls’ major purposes is to develop alternative principles of justice to those of utilitarianism. Throughout his entire work Rawls is engaged in a twopronged enterprise : the development of his own theory of justice and the destruction of utilitarianism as the basis for a theory of justice. What are the two principles of justice which emerge from all the conditions of the original position? The first holds: “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” The second is more complex: “Social and economic inequalities are

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to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.”’l We need not elaborate upon these principles to any great extent, save to note that the second principle embodies Rawls’ controversial “difference principle” which rests upon the “intuitive idea” that “the social order is not to establish and secure the more attractive prospects of those better off unless doing so is to ihe advantage of those less fortunate.” This and the main features of his first principle are caught up in his 66general conception” of justice:

All social primary goods-liberty and opportunity, income and wealth, and the to be disbases of self-respect-are tributed equally unless an unequal distribution of any or all’ of these goods is to the advantage of the least favored.12 To these principles and the general conception, we must add two “priority rules.” The first of these stresses the priority of liberty, specifically, “liberty may only be restricted for the sake of liberty.”ls The second rule, in effect, holds to a priority of justice to the “principle of efficiency and to that of maximining the sum of advantages; and fair opportunity is prior to the difference principle.”14 The significance of this, it appears, is that, what at other points he calls “equality of fair opportunity,” is to be considered on a par with “primary goods.” This represents the basic foundation of Rawls’ theory. In section I1 (“Institutions”), he sets forth a four stage process through which principally political institutions are developed in accordance with the principles of justice. At each successive stage the veil of ignorance is progressively raised, until, in the final stage of a fully developed political order, it is removed entirely. In this context Rawls discusses such matters as majority rule and civil disobedience.

Section 111 (“Ends”) represents a broad inquiry into, inter alia, the good life (here Rawls claims to use a slightly modified Aristotelian approach), and the compatibility of his theory of justice with a well ordered, harmonious, and stable society which will allow an individual to pursue a “rational plan of life.” By the end of the work Rawls pictures contented individuals, secure in the righteousness of the principles of justice, each contributing to welfare of others, each a part of a vaster, harmonious whole.

I1 IN ANY intensive analysis of Rawls’ work, one consideration of paramount importance must be borne in mind. Perfect development of a contractual theory only leads to what can be termed a closed theory; that is, more precisely, a theory or framework which is only susceptible to Criticism from value positions or moral perspectives external to the theory itself. The contractual approach allows so much: The theorist is free to set forth whatever assumptions and stipulations he deems necessary for his purposes. In this sense contract theories resemble models, wherein the prime injunction, as the process of theory building proceeds from the fundamental assumptions and stipulations, is that of logical consistency. There are, of course, other requirements relative to the assumptions and stipulations: they should be sufficient so as to insure that the reader does not have to fill in missing links; they should “keep house” with one another, i.e., they should not be mutually contradictory or inconsistent; they should be spelled out or defined with s d c i e n t precision so that their role and purpose in the general theory will be clear and, the more reasonable they are, the better. Because it is not our purpose here to explore and examine all of the implicit rules of the contractual approach, we will only note that if all such rules are followed, the basis of criticism of any such theory must necessarily be external to the Fall 1976

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theory itself. For instance, the assumptions and stipulations may be regarded as totally or partially unrealistic, or the resultant theory may be “nonoperational” because there may be insurmountable obstacles, both normative and empirical, to implementing its prescriptions or in utilizing its standards either for purposes of action or for measurement of the existing conditions. Obviously these kinds of external criticisms can be the most damaging when the explicit purpose of the theory is justificatory or prescriptive. With this in mind let us turn to Reading Rawls. The majority of the fourteen articles are critical in one respect or another of A Theory of Jmtice. Their concerns in general deal with the internal development of Rawls’ theory from a variety of angles: the uses of the contract doctrine, the meaning of equal liberty, the soundness of the priority principles, the conditions in the original position, and, inter alia,the “maximin” principle. Among the more insightful articles are those by David Lyons, R. M. Hare, H. L. A. Hart, Gerald Dworkin, and Benjamin Barber. Each in their own way provides us a fuller appreciation of the critical weaknesses in Rawls’ theory. Combined with other reviews such as those of David L. Schaefer in the Political Science Alan Bloom and John C. Harsanyi in the American Political Science Reuiew,le and Robert Nisbet in the Public Interest, we can discern major lines of criticism of Rawls’ work at both the internal and external level. -Certainly one of the major technical problems involves Rawls’ use of the veil of ignorance. The veil, we must recall, is a device to secure impartiality among the parties in the original position. Yet, as David Lyons points out:’ Rawls raises the veil in this position, contrary to express stipulation, so that the parties are able to make “actuarial calculation” as to their wants and needs in terms of primary goods. But in allowing for actuarial calculation with regard to primary goods Rawls introduces a bias. First, this selective seepage

of information renders the choice of the maximum principle far more plausible; and second, the method is skewed to benefit those whose conception of primary goods more closely coincide with those which Rawls has stipulated. To quote Lyons: “Rawls fully recognizes that the list of primary goods is based on a kind of statistical norm, and that there are individuals who do not value income, wealth, power, authority, liberty, and self-esteem so much as to regard them all, and only them as prinary goods. The list of primary goods therefore favors those closest to the norm.”18 This manipulation of the veil also concerns Gerald Dworkin in a different context.l9 In the original position individuaIs by stipulation are not allowed information “that is likely to give rise to bias or distortion.” But a significant amendment is added to this stipulation during the four stage process which leads to the full development of Rawls’ beneficent society: Once the process begins in earnest, the participants are forbidden that knowledge which would “set men against one another.” Leaving to the side, once again, this change of ground rules, the important point is that Rawls has excluded any information relating to substantive or end theories of justice such as those founded on religious persuasion, higher law or the like. The fact is, of course, that Rawls wants to skirt them because his theory cannot come to grips with any such beliefs. Yet, as Dworkin notes, Rawls is not above incorporating notions of substantive justice when it suits his fancy. Rawls’ treatment of the perennial problems of conscientious objection and civil disobedience are abundant evidence of this. According to Dworkin, however, Rawls’ “substantive claims” in these areas of concern “follow only because implicit and controversial assumptions are built in a non-obvious fashion into the structure of his theory.”2o And H. L. A. Hart sees problems with the veil of ignorance from a common sense point of view.21 In essence he asks, How can

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it be that those in the original’ position would adopt the liberty priority principle without the information necessary to determine whether its adoption would or would not advance their collective self-interest? Clearly the parties would be foolishly restricting their future options, if they were to accord liberty priority. As Hart sees it, Rawls’ dogmatism with regard to liberty is attributable to latent or unarticulated values, in this case, values integral to “Liberalism.” In this case Rawls shows a preference for a politicall’y active and civic citizenry O V ~ T“mere material goods or contentment.”22 But Rawls’ preference does not in any way demonstrate the priority of liberty. Hart raises another widely shared concern relative to Rawls’ handling of liberty and its priority, namely, how are conflicts between liberties to be resolved? In this connection he writes: some criterion of the value of different liberties must be involved in the resolution between them; yet Rawls speaks as if the system “of basic liberties” were self-contained, and conflicts within it were adjusted without appeal to any other value besides liberty and its extentT3 The fact is, as Schaefer points out, Rawk “never systematically specifies what liberties are ‘basic.’ ”24 In any event, Rawls stipulates that the resolution of conflicting liberties is to be made “from the standpoint of the representative equal citizen.”26 Such a procedural answer, however, begs the question. As Hart asks: ‘‘What do the legislators mean in such cases when they ask which alternative it would be rational for the representative equal citizen to prefer as securing the greatest liberty, when they know that some men may value privacy of property more than freedom of movement, and others not?”26 And if, as perforce it must, the question is cast in terms of what resolution will advance the common good or general welfare, the door is open to allow for the introduction of economic and

social considerations which would violate the terms of the priority principle that holds “liberty may only be restricted for the sake of liberty.” The foregoing scarcely skims the surface of the internal criticisms of Rawls’ theory. However, enough has been said to indicate that at this level there are very serious shortcomings. The most serious of these, from our vantage point, is Rawls’ failure to operate within the confines of his own stipulations. This fact is somewhat remarkable in its own right because, as we have noted, Rawls idllzes an approach that gives him ample means and sufficient latitude to reach his desired destination without constantly having to change the ground rules. And we must ask: Why would a presumed professional repeatedly trip over his toes? The superficial answer is the very complexity of the theory itself. Rawls feels obliged to work the participants into embracing the maximin strategy and the difference principle. To do this he must, as numerous critics have pointed out, introthe ezcE.$u+7 ,cplPv :e. r-- yei! ‘b norance. But, why should he go to such great lengths, knowing full well that the coherency and structure of his theory will be drastically weakened ? Hare2‘ and HarsanyiZ8 provide the most plausible answer. Rawls takes these rather elaborate steps to avoid embracing any form of utilitarianism. Put otherwise, Rawls could have used a more “economical’’ veil of ignorance, or he could even have used the “neutral observer” approach in the development of his justice principles. But to do so would have forced him to embrace utilitarianism in one form or another. For instance, there is no reason to believe, other than the stipulations which Rawls sets forth, that the participants in the original position would not opt for some sort of insurance policy which would guarantee them a basic minimum in terms of primary goods rather than embracing the difference principle. It appears that Rawls in the face of common sense was bent upon providing his Fall 1976

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“viable alternative to utilitarian thought.” And Hare comes up with what seems to be the best explanation for this: Rawls may have reasoned that, since an economical veil’ would make him into a utilitarian he had better buy a more expensive one. We can, indeed, easily sympathize with the predicament of one who, having worked for the best part of his career on the construction of a “viable alternative to the utilitarian tradition,” discovered that the type of theory he had embraced, in its simplest and most natural form, led direct to a kind of utilitarianism.2D On purely external grounds, Rawls’ theory leaves much to be desired. For one thing, as Barber points out,So the theory is ahistorical and apolitical, trademarks of closed theories of this nature. The result is that if we wanted to follow its injunctions in the real world we wouldn’t know what to do. Schaeffer puts this in another perspective: RawIs’ two principles of justice “taken by themselves are so vague, abstract, and contradictory that it would be impossible to demonstrate that any actual regime does or does not correspond to them.”31 Moreover, in hypothetical cases, as Harsanyi illustrates, the requirements of the difference principle yield morally outrageous results. Consider only one example he offers: Suppose there are a number of mentally retarded individuals who through public expenditures of vast amounts might be slightly improved but only at the expense of depriving the more gifted and brilliant individuals of advanced education. No matter what the relative sizes of the groups, no matter how strong their desires, the difference principle would require the condition of the retarded be improved. Examples such as this are boundless when Rawls’ general principles are a p plied to particulars. Extreme egalitarianism, with emphasis on material equality, is one of the chief characteristics of Rawls’ theory. Throughout Rawls is fighting Machiavelli’s battle

against Fortuna: He wants to overcome what he perceives to be the accidental or arbitrary factors which produce what, in his terms, are “unjustified” inequalities. And his extremism in this regard is illustrated when he intimates at various points that the realization of his principles might well involve elimination of the family structure. In most respects, as Robert Nisbet points out, Rawls adopts both the methods and goals of the philosophes bent upon creating a society of equals. This alone would serve to put him in the camp of the contemporary secular liberal’s. But, as Bloom Rawls’ theory is designed for even grander purposes. It casts its net for the approbation of the New Left. It leaves open the question of whether capitalism or socialism is best suited to achieve the principles of justice, though the answer to this question is less than academic given the demands which Rawls’ principles place upon the distribution of primary goods. The theory would lead one to believe that there can be a happy and harmonious community of contented equals, a traditional yearning of the Left both past and present, combined with the enormous elasticity to allow for civil’ disobedience and conscientious objection based upon amorphous notions of justice. And the theory is strangely malleable when it comes to the problems of justice in the underdeveloped nations of the world, so that one can subscribe to it without having to condemn the practices of the so-called third world nations. Bloom writes: This correspondence, unique in the history of political philosophy, between what is wanted by man for current political’ practice and the conclusions of the abstract, rigorous political philosophy would be most remarkable if one did not suspect that Rawls began from what is wanted here and now and then looked for the principles that would rationalize it.S3 Rads’ theory, in this respect, can be viewed as an attempt at fusion between the 377

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Old and New Left. And it is this attempt at fusion which to some degree causes the internal difficulties to which we have alluded. Equally audacious is Rawls’ accounting of how his just state is going to persevere. Surely we can imagine that many individuals as they leave the original position (after all, we never really know why they were there in the first place) saying out loud: “I did not serve my interests well. I struck a lousy deal. I want out!!” And what, short of coercion, can Rawls come up with ta prevent mass deffectim? In essence, as Rawls would have it, simply this: A recognition of the fundamental fairness of the principles of justice will deter any such development. Upon reflection individuals will see the benefits of adhering to the principles of justice, they will perceive their inherent fairness, and, then, willingly cooperate. In this respect, these principles of justice are meant to perform the function of a civil theology. But this function they can never perform, if for no other reason Am.. .I?..-.211 ,. - l l - - - +.- Atan!> w u tliiuw iui iaiiond inquiry into their source and substance. And reasonable men will soon perceive that Rawls’ theoretical structure is built upon sand.

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ROBERTNOZICIC’Sbook, Anarchy, State, and Utopia, is commonly regarded as an antidote to Rawls’ volume because Nozick sets forth and defends a radically different conception of justice and the state, one which conforms with libertarian tenets. However, as we shall see, Nozick, like Rawls, presents us with a closed system which is subject to all the limitations noted above. The first part of Nozick’s book, six chapters in all, is entitled “State of Nature Theory, or How to Back into a State without Really Trying.” Using basically a Lockean conception of a state of nature, Nozick provides an “invisible hand explanation” for the minimal or “night-watchman” state whose legitimate functions are limited to “protection against force, theft, fraud,

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enforcement of contracts, and so on. Thus, Nozick‘s theory is not contractual. Nozick does not claim that his state of nature is factual or presents an accurate account of the origins of the state. Rather, in his words, it is “a fundamental potential explanation.” Such an explanation, he maintains, is highly useful. We learn much by seeing how the state could have arisen, even if it didn’t arise that way. If it didn’t arise that way, we also would learn much by determining why it didn’t; by trying to explain why the particular bit of the real world that diverges from the state-of-nature model is as it is.34 Canvassing the difficulties which Locke notes in the state of nature, Nozick finds that the basic difficulty is the lack of means to enforce individual rights. When a dispute arises between individuals and “there is no firm way to settle such a dispute, to end it and to have both parties know it is ended.”35 To alleviate the condition, &d& wvisioIis ihe growth of “protective associations” whereby citizens band together for the mutual protection of their individual rights. Obvious difficulties present themselves with the emergence of these associations: they are numerous, their jurisdictions are geographically limited, and they do not hold to the same notions of procedural justice. As a consequence, there is often conflict between them. Nozick sets €orth, again true to the fundamental potential explanation procedure, the more or less “free market” processes by which a “dominant protective association’’ emerges. This dominant association involves us with the “ultraminimal state”; ultraminimal because it provides “protection and enforcement services only to those who purchase its protection and enforcement policies.” (emphasis his) 36 In moving from the state of nature to the ultraminimal state, Nozick is sensitive to the objections of anarchists. He feels he has answered their principal objection by pointing out how it is that anarchistic con-

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ditions would necessarily evolve into an ultraminimal state. A second, and perhaps a more important concern in his procedure is to demonstrate that the development from the ultraminimal state to a minimal state does not violate the rights of any individual and is, therefore, morally legitimate from the libertarian point of view. On this score, Nozick takes great pains to show that libertarian morality actually requires a minimal state since: “[tlhe dominant protective association with the monopoly element is morally required to compensate for the disadvantages it imposes upon those it prohibits from self-help activities against its Part 11, “Beyond the Minimal State?,” begins with the proposition that “[tlhe minimal state is the most extensive state that can be j ~ s t i f i e d . ” ~In~ this section Nozick dissects Rawls‘ theory of justice and finds it, along with all “end state principles,’, not only internally deficient but morally repulsive. Certain aspects of his position are noteworthy. For instance, end state principles lead to patterned principles of distributive justice which require “continuous interference with people’s lives.” Any favored pattern would 6e transformed into one unfavored by the principle, by people choosing to act in various ways; for example, by people exchanging goods and services with other people, or giving things to other people, things the transferrers are entitled to under the favored distributional pattern. To maintain a pattern one must either continually interfere to stop people from transferring resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them.89

if Such, of course, would be &e Rawls’ theory were to be implemented. From Nozick’s point of view modern the. ories of distributive justice have showed an obsessive concern with the rights and welfare of the recipients and not the givers.

“In considering the distribution of goods, income, and so forth, their theories are theories of recipient justice ; they completely ignore any right a person might have to give something to someone.”4o Moreover, such theories, as prevalent and popular as they are, tend to place those who would justify “differential entitlements” in a defensive posture because they presume the essence of justice to require taking from one sector of society and giving to another. Nozick presents his entitlement theory as an alternative to the end state principle theories. The entitlement theory or “justice in holding,” he maintains, is not only just but is also non-patterned thereby insuring a minimum of state interference. This theory consists of the major principles or elements: (a) “original acquisition of holdings;” (b) “transfer of holdings” and (c) “rectification of injustice in holdings.” If the holdings were acquired without violating the rights of others, then the acquisition is just; if transfer of holdings were made voluntarily, without coercion, the transfer is just. The individual is entitled to all holdings which he possesses through just acquisition or transfer. The rectification principle, about which Nozick says very little, would allow for compensation of individuals whose rights, (a) and (b) above, have been violated. Nozick treats of the first two principles of justice in holding at some length. The most important qualification regarding them is what he terms “Lockean proviso.” This proviso holds that processes which “normally” give “rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is thereby worsened.” (emphasis added)41 For instance, an individual “may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for

bis.”42 Part 111, “Utopia,”

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lengthy chapter wherein the minimal state is viewed as providing the best means for the achievement of conditions normally associated with utopian thought. Because, as Nozick sees it, visions of utopia will differ from individual to individual, the problem is to provide a setting in which each individual can associate with others who have similar values and visions. The minimal state, in his view, provides the overall framework within which numerous communities with diverse values and ways of life can flourish. The central tasks of the overtending minimal state will be to resolve conflict between these communities and enforce “an individual’s right to leave a comm~nity.”~~

IV

NOZICK’S THEORY, appealing as it may be to some, is certainly not free of difficulties. The invisible hand explanation of the origins of the minimal state certainly cannot be said to lend any moral legitimacy to it. Rut this e?rp!an.tinn is irr.n,crt“nt fer Nozick because it allows him to avoid introducing the social contract into his theoretical design. If we recur to Locke’s theory, which Nozick freely borrows from sum the contract, we can see how it is that consenting parties might legitimately agree, contrary to the principles of libertarianism to which Nozick is attached, for a more than minimal state. If, as Nozick contends, it is permissible for an individual to sell himself into slavery, then it would certainly seem legitimate within Nozick‘s framework for individuals to freely contract for any number of services above and beyond those provided by the night watchman state. Thus, his bold assertion, “[tlhe minimal state is the most extensive state that can be justified,” is true only if it can be shown that at no time in history had individuals consented to more than a minimal state. One way around this difficulty, of course, would be to make certain assumptions about human nature. For example, one could assume that men are asocial atoms

of sorts; that they would only contract for purposes of preserving their individual property rights which they deem as their most treasured possession. And this they would not do out of necessity or change. No doubt a closed theory could be worked out from these or similar stipulations that would allow us to arrive at Nozick’s approximate position without having to dispense with the contract. At the same time, however, any such theory would lose whatever force is to be derived from a fundamental potential explanation, since it is SO blatantly contrary to known facts. Viewing matters from this perspective helps us to evaluate the status and justification of Nozick‘s entitlement theory and all that follows from it. What are the moral foundations or justifications for these principles which place individual property rights as supreme? How did they gain the status of being primary rights which supersede all others? Certainly not through the processes which Nozick has set forth. They can only assume this status, in our view, because Nozick has used a method: not entirely dissimilar to Rawls’: By removing man from the contract stage by his very narrow fundamental potential explanation, he has precluded alternative conceptions of the goals and purposes of the state. For surely, if the members of the potential state were to meet and deliberate, the probability exists that they would find many areas of agreement concerning the utility or desirability of common action through the agency of the state. Moreover, horrible as it is for libertarians to contemplate, individuals might not hold property rights as ~nalienable.~~ Aside from these considerations, there is a yawning gap in Nozick’s theory which all but renders it worthless for libertarians. We refer here to his rectification principle. This principle dictates that those who in the past may have becn treated unjustly with regard to the principles of acquisition or transfer are entitled to rectification or compensation. Nozick fully realizes that rectification leads us away from the miniFall 1976

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mal state a n d must be based on some principles of patterned justice. Yet, he seems unaware of the full ramifications of this principle. For instance, he writes, “one cannot use the analysis and theory presented here to condemn any particular scheme of transfer payments, unless it is clear that no considerations of rectification of injustice could apply to justify it.” (emphasis his) 46 The ramifications of this are enormous i n light of his “rough rule of the thumb” regarding rectification : “organize society so as to maximize the position of whatever group ends up least well-off in society.” (emphasis Nozick would do well to read Nathan Glazer’s Afirmative Di~crimination~~ to see how far his principle of rectification so thoroughly undermines the essence of his theory. Indeed, Rawls’ difference principle seems relatively tame by comparison. In contrasting Nozick’s theory with Rawls, the temptation exists to dwell upon their obvious differences. Nozick, for instance, uses different theoretical tools and does not get himself ensnarled with such devices as the veil of ignorance. His account of the origins of the minimal state with the use of the invisible hand explanation seems far more plausible than Rawls’. The end which Nozick seeks to maximize, individual freedom, seems far more desirable than Rawls’ rather dreary egalitarian welfare state. For all of this, however, we should not overlook the fact that both theories are fundamentally the same. What Nozick has demonstrated is that one can construct a closed theory, through postulations and the like, to embody the values closest to his heart. This game can be played by just ahout anybody with their wits about them. Nozick pIays it better than Rawls, in large part because he is the better technician. But neither theory goes far beyond presenting us with an elaborate and overdrawn theoretical framework which systematizes ideological preferences. And both are materialistic and relativistic, following the line of the “modern” tradition fathered by

Hobbes. As such, neither Nozick nor Rawls can say anything of substance or value about the good life or the just society because their stipulative procedures preclude an examination of justice in the context of the human society. They can do no better through “intuition” or “fundamental potential explanation” than provide us with foundationless principles or rules of justice ; foundationless because they come from almost out of nowhere, from the abstract, hypothetical, and unreal human situations which their proponents set forth. For this reason, both Nozick and Rawls are able to ignore that vast corpus of philosophical writings in the mainstream of the Western tradition which dealt with justice in the human context but, at the same time, did not imagine man to be the measure of all Cutting this cord with the better part of the Western philosophical tradition renders both theories barren. Outside of insisting that we should follow their principles of justice, neither Nozick nor Rawls can speak to the question of the good life for the citizens caught up in their regimes. Their relativism will not permit of this. And SO Rawls’ emphasis upon “doing your own thing” (who is to say one rational life plan is superior to another?) and Nozick’s utopia wherein each individual will find his little niche surrounded by people of like mind. In short, both these so-called “moral” theories leave man at sea without an anchor. In the last analysis, there is good reason to believe the impact or influence of these books will be detrimental to political philosophy. And this not because of their methods, values, and assumptions, puerile as they are. Rather, both works, particularly Rawls’, have been so lavishly praised as charting new paths in political philosophy that they are held up as standards to emulate; as works that must be read and thoroughly digested before anyone dare embark on exploring perennial problems associated with liberal democracy. For one to ignore either book in a full length treat-

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ment of almost any aspect of the theory of democratic government is an open invitation to searing criticism. That neither book should enjoy this status is beyond question. To the extent that either book opens up new frontiers or vistas of thought or analysis regarding the normative dimensions of the just or good state, it does so only in the confines of its basic structure and premises which are, as

we have noted, severely limited. And many

‘John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). *Norman Daniels, ed., Reading Rawls (New York: Basic Books, 1975). ‘(Oxford: Clarendon Press, 1973). ‘Robert Nozick, Aiarchy, State u r d Utopia (New York: Basic Books, 1975). M‘The Pursuit of Equality,” The Public Interest, June 1974, p. 108. 94 Theory of Justice, op. cit., p. 137. ‘Ibid., pp. 137-8. ‘Ibid., p. 136. ’lbid., pp. 251-2. In this connection, Robert Nisbet writes: “Professor Rawls declares that his book is grounded in Kant’s moral theory. For every teaspoon of Kant, my own reading suggests, there are whole cupfuls of Rousseau.” “The Pursuit of Equality,” op. cit., p. 207. ‘‘A Theory of Justice, op. cit., pp. 152-3. Sbid., p. 302. ”Ibid., p. 303. “lbid., p. 302. “Ibid., pp. 302-3. ‘Tol. 111, fall 1973. ‘Tol. LXIX, June, 1975. ““Nature and Soundness of the Contract and Coherence Arguments.” =Reading Rawls, op. d~~~ p; 163. ’”“Non-Neutral Principles.” ”Reading Rawls, op. cit., p. 139. =“Rawls on Liberty and Its Priority.” *Reading Rawls, op. cit., p. 252. =Ibid., p. 240. %Political Science Reviewer. Vol. 111, p. 15. %A Theory o f Justice, op. cit., p. 204. “Read-

ing Rawls, op. cit., p. 244. nReading Rawls, op. cit. ““Can the Maximin Principles Serve as a Basis of Morality? A Critique of John Rawls’ Theory,” American Political Science Review, Vol. 111. =Reading Rawls, op. cit., p. 91. Y b i d . , “Justifying Justice: Problems of Psychology, Politics, and Measurement in Rawls.” PPolitical Science Reviewer, Vol. 111, p. 34. =“Justice: John Rawls vs. the Tradition of Political Philosophy.” =American Political Science Review, op. cit., p. 649. “Anarchy, State, and Utopia, op. cit., p. 9. I b i d . , p. 11. ””lbid.,p. 26. ”lbid., p. 119. I b i d . , p. 149. =Ibid, p. 163. I b i d . , p. 168. “lbid., p. 178. albid., p. 180. “Ibid., p. 332. “On this point see Marc F. Plattner, “The New Political Theory,” The Public Interest, Summer 1975. &Anarchy, State. and Utopia, op. cit., p. 231. ‘81bid., p. 231. “Nathan Glazer, Afirmative Discrimination (New Ye&: Bzsic Baoks, 19%:. “Raids, ii is irue, tries to incorporate Kant and Aristotle, among others, into his theory. However, it is more accurate to say that he twists their philosophies to fit them into his theory. On the “misuse” of both Kant and Aristotle see Bloom, op. cit.

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of the problems which Nozick and Rawls treat are problems of their own making; they are endemic to and generated by their closed ideological systems. Thus, the contributions of these books are minimal. We may indulge the hope, however remote, that they represent nothing more than a fad in political philosophy and that this discipline will return to its traditional moorings.

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