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TEXAS UIL LINCOLN-DOUGLAS DEBATE RESEARCH SERIES VOL. 19 SPRING 2013 NO. 2

RESOLVED: IN MATTERS OF , ' DIFFERENCE OUGHT TO BE PREFERRED OVER 'S .

Lincoln Douglas was created as a debate format designed to emphasize questions of value. Effective participation in Lincoln Douglas debate produces familiarity with the great philosophers of the ages. The Spring 2013 UIL Lincoln-Douglas topic offers an exciting opportunity to explore the two leading theories of justice. This topic will give debaters an opportunity to understand how the current political divide in American politics finds its roots in classic philosophical theories. Libertarians, such as Kentucky Senator Rand Paul, and Tea Party candidates such as Minnesota Representative Michele Bachman, argue for lower , less welfare spending, and minimal . President Obama, along with most Congressional Democrats, argues that wealthy individuals should pay more taxes so that the federal government can continue to support domestic welfare spending. John Stick, professor of law at the University of Southern California Law Center, traces the origin of these current political divisions to the competing philosophies of Rawls and Nozick:

The relationship between Rawls and Nozick is not a matter of interest for philosophers only. Although the first burst of discussion that greeted their work in the early 1970s has passed, many of the present legal policy debates between liberals and conservatives over the distribution of wealth, the nature of , and the proper role of government in regulating the market are strongly influenced by Nozick and Rawls. Most contemporary theorists that oppose progressive taxation because it interferes with the functioning of the market rely on Nozick's political arguments. Rawls and Nozick are central to the contemporary debate over welfare rights, the strength of property rights, the interpretation of the takings clause, and general theoretical discussions on the nature of . (Northwestern University Law Review, Spring 1987, p 364)

Anupam Chandler, professor of law at the University of California at Davis School of Law, also identifies the justice theories of Rawls and Nozick as central to political controversies: “Robert Nozick stands as one of the foremost intellectual antagonists to claims for distributive justice. John Rawls, meanwhile, penned the most important modern political theory justifying an egalitarian society” (U.C. Davis Law Review, March 2007, p. 564). John Rawls’ Difference Principle

John Rawls (1921-2002), long-time professor of philosophy at Harvard University, is the author of the classic 1971 work, A Theory of Justice. In the Preface to his book, Rawls explains his intention to provide an alternative to the justice theories of the “great utilitarians,” David Hume, , , and . He expresses concern that the critics of utilitarian justice have failed to provide a well-developed alternative theory. His intention is to correct this shortcoming: “What I have attempted to do is to generalize and carry to a higher order of abstraction the traditional theory of the as represented by Locke, Rousseau, and Kant. In this way I hope that the theory can be developed so that it is no longer open to the more obvious objections often thought fatal to it. Moreover this theory seems to offer an alternative systematic account of the tradition. The theory that results is highly Kantian in nature” (p. viii).

So what does it mean that Rawls wants to position himself in the Kantian tradition, rather than as a utilitarian philosopher? The German philosopher, , believed that justice must be examined deontologically – meaning we must always ask about our duties and moral obligations before looking to the consequences of those acts. This means that “the right must precede the good.” Karen Lebacqz, professor of ethics at the Pacific School of Religion, offers the following explanation in her book, Six Theories of Justice:

Traditional notions of justice appear to be flouted by a theory that claims the "right" act is whatever maximizes the good. Individual rights or claims would be overridden by consideration of the "happiness" of others. For example, if the bloodshed of a threatened race riot could be averted by framing and lynching an innocent person, it seems that the utilitarian would have to say it is "right" to do so. long as the "greater good" required it, all individual rights and claims would be ignored. 2

Because of such apparent implications of utilitarian theory, issues of justice have consistently been a stumbling block for utilitarians. (1986, pp. 17-18)

Rawls offers what he calls his “two of justice:”

First: Each person is to have an equal right to the most extensive basic compatible with a similar liberty for others. Second: Social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all. (A Theory of Justice, 1971, p. 60)

The “Difference Principle” arises from Rawls’ second principle of justice. Before explaining this principle, however, it is essential to recognize that Rawls makes his first principle more important than the second: “These principles are to be arranged in a serial order with the first principle prior to the second. This ordering means that a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages. The distribution of wealth and income and the hierarchies of authority, must be consistent with both the of equal citizenship and equality of opportunity” (A Theory of Justice, 1971, p. 61).

So if “basic liberties” must be assured before the “Difference Principle” kicks in, what does Rawls mean by “basic liberties?” He offers the following explanation: “The basic liberties of citizens are, roughly speaking, political liberty (the right to vote and be eligible for public office) together with the of speech and assembly; liberty of conscience and freedom of thought; freedom of the person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as defined by the concept of the . These liberties are all required to be equal by the first principle, since citizens of a just society are to have the same basic rights” (A Theory of Justice, 1971, p. 61).

After these basic liberties have been assured, inequalities (or differences) in things such as income or property can be just so long as the inequalities work to “everyone’s advantage.” Consider the following example: workers could reason that everyone working at their factory should receive the same income at $15 per hour. Suppose we discover that we could hire a person with expert skill in supervision at $30 per hour. By hiring such a person, factory output improves such that everyone else in the factory can now earn $20 per hour. Would factory workers insist on retaining equality of income at $15 per hour, or would they accept the income difference that seems to work to everyone’s advantage? For Rawls, the question is always whether the difference is of benefit to the “least advantaged.” Why is he not equally concerned about the welfare of those at the top of the income scale? Well, an income difference obviously works to the advantage of those at the top of the scale. If we want to know whether the difference works to “everyone’s advantage,” our attention must turn to the impact of the difference on the least advantaged. Rawls believes that a properly functioning system can “lift all boats.” But it will do so only if proper attention is given to equalizing opportunity for all.

John Schaar, professor of philosophy at the University of California at Santa Cruz, offers the following explanation of the “Difference Principle:”

The Difference Principle asserts that inequalities are justifiable only if they are to the advantage of the worst-off representative man or group. We are to agree to consider the unequal distribution of talents and abilities among a population as a general social resource which can be arranged to work to the advantage of all, rather than as a source of strength for some and weakness for others. No one is to benefit from the contingencies of nature or social position "except in ways that redound to the well-being of others". In the conception of justice as fairness, people in effect agree to share one another's fate. Reciprocity and mutual benefit must prevail over considerations of social efficiency and technocratic values. (John Rawls’ Theory of Social Justice, 1980, p. 170)

How does Rawls know that his theory of justice is the correct one? His answer is a theoretical device that he calls “the veil of ignorance” in the “:”

The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use 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. Now in order to do this I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations. It is assumed, then, that the parties do not know certain kinds of particular 3

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. (A Theory of Justice, 1971, pp. 136-137)

In essence, Rawls is suggesting the terms of a social contract. Members of a society should establish principles of justice that will work for all, regardless of race, class, income or any other consideration. The role of the “veil of ignorance” in Rawls theory is explained by Donna Byrne, professor of law at the Widener School of Law:

Rawls reasons that from a "veil of ignorance" people would agree on principles of general equality with the goal of maximizing the position of those who are worst off. To the extent that some inequality results, people are entitled to that inequality as long as it does not jeopardize the very institutions developed under the equality principles. Any system developed under Rawls's principles, then, would require constant "correction" to maintain the ideals of equality. Some of this correction would come in the form of wealth transfer taxes and progressive income taxes. That such "correction" might reduce the overall size of the economic pie is not such a concern for Rawls because the main goal is not a maximum pie overall, but maximum slices for those at the bottom. This "maximin" is not chosen as a goal because we feel sorry for those at the bottom or because we think that wealth is undeserved, but because it seems logical that as a matter of social contract, people in the original position would agree to such an arrangement in order to improve their own worst case scenarios. (Arizona Law Review, Fall 1995, p. 777)

Behind the “veil of ignorance” each person has to ask whether the rules that govern a society would work for them regardless of their position in that society. In his “Letter From a Birmingham Jail,” Martin Luther King, Jr. observed that “an unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.” King is pointing out that some people are willing to establish justice rules for others that they would never make binding on themselves. Rawls’ “veil of ignorance” offers a device for the formation of a social contract that will work for all parties, regardless of societal position.

What does Rawls say about international income differences? Would he, for example, say that Americans have a justice obligation to create equality of opportunity for poor children in Africa? Somewhat surprisingly, Rawls says there is not such an obligation. Brian Shaw, professor of philosophy at Davidson College, explains Rawls’ reasons for this limitation on the Difference Principle:

In arguing that well-ordered peoples have an obligation to help burdened societies satisfy their members' basic needs and against claims that they have duties to achieve more, Rawls pointedly denies the applicability to global circumstances of distributive principles like his own Difference Principle, Thomas Pogge's "Egalitarian Principle," and Charles Beitz' "global distribution principle". He justifies this denial by alleging a fundamental disanalogy between the kinds and extent of social cooperation entered into by the members of liberal societies and those adopted by independent peoples. In the first case, Rawls argues that citizens unite in a close " venture for mutual advantage" and embrace some liberal doctrine to determine "the proper distributions of the burdens and benefits of social cooperation." In the second, however, he implies that no close cooperation occurs and denies that peoples adopt any distinctively liberal principle to govern their relations. From these premises he draws three conclusions: that inequalities in the contemporary global distribution of resources "are not always unjust"; that the basic structure of the Society of Peoples does not systemically disadvantage poor societies or exert coercive effects upon them; and that one's birth into a burdened society rather than a liberal one need not be regarded as morally arbitrary and therefore demanding justification, or still less rectification. (Journal of Politics, Feb. 2005, p. 223)

Should we understand Rawls’ Difference Principle as advocating socialism rather than ? Rawls insists that free markets are consistent with his theory. Arthur DiQuattro, professor of philosophy at Reed College, discusses this part of Rawls’ philosophy:

Under socialism, the market might be used to allocate resources efficiently but never to distribute income, wealth, or power in proportion to the distribution of privately held capital. In either market socialist or property-owning democratic systems, distribution is determined politically in accord with the principles of justice. Rawls recommends the use of markets because of the advantage of allocative efficiency and because he feels that comprehensive planning tends to interfere with equal liberties and fair equality of opportunity, that is, market devices decentralize 4

economic power and enhance free choice of occupation. But there is another, more important reason for Rawls's insistence on markets. And he does insist: "The ideal scheme sketched . . . makes considerable use of market arrangements. It is only in this way, I believe, that the problem of distribution can be handled as a case of pure procedural justice." (Political Theory, Feb. 1983, p. 69) Robert Nozick’s Entitlement Theory

Robert Nozick (1938-2002), like Rawls, a professor of philosophy at Harvard University, is the author of the classic 1974 work, Anarchy, State, and Utopia. Nozick and Rawls were colleagues at Harvard, and while their philosophical disagreements were sharp, their respect for one another was apparent. Nozick opens his critique of Rawls’ with the following explanation:

A Theory of Justice is a powerful, deep, subtle, wide-ranging, systematic work in political and moral philosophy which has not seen its like since the writings of John Stuart Mill, if then. It is a fountain of illuminating ideas, integrated together into a lovely whole. Political philosophers now must either work within Rawls’ theory or explain why not. (Anarchy, State, and Utopia, 1974, p. 183).

Predictably, however, Nozick then proceeds to explain why he thoroughly rejects Rawls’ notions of justice. Nozick offers three principles of justice that he calls “Entitlements:”

(1) A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding; (2) A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to that holding, is entitled to the holding; and (3) No one is entitled to a holding except by (repeated) applications of (1) and (2). (Anarchy, State, and Utopia, 1974, p. 151).

Nozick believes that justice begins and ends with the of property. If a person owns property, that person has the right to use it as he or she chooses. Conversely, no other person has the right to take property without just compensation. Nozick’s problem with Rawls is that he seems to view property as if it falls as “manna from heaven.” Rawls has his members of society, standing as if behind a “veil of ignorance,” deciding how other people’s property should be redistributed. The problem is that this property is already owned.

Nozick explains that his own theory of justice is “historical,” while Rawls’ theory is based on “patterning” or “end states.” Rawls looks across a society and asks how property should best be “patterned” or distributed. What Rawls ignores is that persons are already justly entitled to the property they own. Nozick explained this key difference from Rawls in an Autumn 1973 article in Public Affairs: “The general outlines of the entitlement theory illuminate the nature and defects of other conceptions of distributive justice. The Entitlement Theory of justice in distribution is historical; whether a distribution is just depends upon how it came about. In contrast, current time-slice principles of justice hold that the justice of a distribution is determined by how things are distributed (who has what) as judged by some structural principle(s) of just distribution” (p. 50).

Nozick bases his notion of property ownership on the writings of . Christopher Nock, professor of philosophy at McMaster University, provides the following background:

Ordinarily, the key to identifying what resources individuals are entitled to is the equal liberty principle. People, through their own free activities, have developed legitimate entitlements which they may dispose of as they will. In Nozick's framework the key to sustaining this view is his entitlement theory, which Nozick presents as a direct development of Locke's theory of appropriation set out in the Second Treatise. Locke suggested that originally, in a state of nature, the equal right to liberty would have given all the right privately to appropriate and other resources from nature for their own use. This was so provided that the things appropriated were not allowed to spoil, and provided that there were still enough and as good natural resources left in common for others. However, over time persons' access to enough and as good would have disappeared. Some men would have legitimately come to own large quantities of land and other resources, leaving others in a position in which they would have to labour for owners to provide themselves with the necessaries and conveniences of life. This could have happened, Locke's framework suggests, without any violation of the equal liberty principle. As such, this framework seems to offer a basis from which to develop a libertarian justification of large and unequal capitalist property rights and the wage labour relations these imply. (Canadian Journal of Political Science, Dec. 1992, p. 681) 5

Nozick makes masterful use of analogies throughout his book. One of his most famous analogies concerns basketball player, Wilt Chamberlain. He reasons that because of Chamberlain’s talent, people were willing to pay large amounts of money to see him play. Because Chamberlain “owns” his talent, he has every right to become wealthy as a result of the free choices that people make when they buy basketball tickets. This, he says, is a perfect example of the magic of the capitalist system – it allows free exchanges among consenting adults. The government has no right to deny Chamberlain the opportunity to become wealthy.

Nozick also makes a distinction between justice and altruism. Consider the damage caused by a hurricane. He would regard the suffering of hurricane victims as bad, but not unjust. A wealthy resident unaffected by the hurricane might feel an altruistic impulse to assist the hurricane victims, but there would be no justice obligation to do so.

Nozick, like his libertarian followers, believes that all taxation for the purpose of redistribution is – it takes, by force, what belongs to one person in order to give it to another. Jeffrey Schoenblum, professor of law at Vanderbilt University School of Law, explains this part of Nozick’s argument:

Suppose you are sitting in your home and a stranger breaks in and removes, under threat, valuable assets belonging to you or your family. The police come, return your property, and arrest the intruder. He argues at his trial that he was a member of the lower middle class, you were upper middle class, and he wanted to even things up. In addition to the destabilizing political implications of his defense, many persons would be deeply troubled by the unfairness of his being able to take what he had not earned from someone else who had earned it. If there are many such persons in the community and they band together to authorize democratically elected officials to take the same property, under color of law, this is described as high income earners paying their fair share. Some of us may be misled by this use of language and the intermediation of the state and its agents to believe that the fair thing has been done. The high income earner who does not wish to participate in this taking will have no recourse. By interposing the state, those who earn less can take away from those who have earned more. They can do this without regard to who contributed more of value to the society as a whole. In effect, the majority of the society, through democratic, majoritarian processes, approves a system where some are required to work more for the than others. (The American Journal of Policy, Fall 1995, pp. 259-260)

The key differences between Rawls and Nozick will provide ample ground for debate on the Spring UIL Lincoln Douglas resolution. Rawls defends the right of government to use taxation to support public education, Nozick opposes government funding of education. Rawls calls for redistributive taxation to fund welfare programs, Nozick opposes all systems of redistributive taxation. Rawls calls for big increases in the tax, arguing that wealth should not so easily transfer from one generation to the next; Nozick opposes all inheritance taxation. Rawls defends capitalism only insofar as it provides for the least advantaged members in a society; Nozick defends a theory of nearly unbridled capitalism. Rawls is an advocate of a strong central government; Nozick calls for a minimal “night watchman state.” ANALYSIS OF THE TOPIC

As you will recall from the Value Debate Handbook, every proposition of value consists of two components: the object(s) of evaluation and the evaluative term. The object(s) of evaluation is what is being evaluated or critiqued in the resolution which makes a judgment, evaluation or critique of the object(s) of evaluation.

This topic contains two objects of evaluation: John Rawls’ Difference Principle and Robert Nozick’s Entitlement Theory. The evaluative term is “justice.” In essence the resolution asks the debater to choose between two very different justice theories. Rawls advocates a system of redistributive taxation; Nozick opposes it. Rawls believes in strong support for public schools in order to equalize opportunity; Nozick thinks that all education should be private. Rawls argues for a government robust enough to equalize opportunity in society; Nozick call for a minimal “night watchman” state. Rawls defends government welfare programs; Nozick would like to end all such programs. These many differences will provide ample opportunities for affirmative and negative debaters to construct their cases. AFFIRMATIVE STRATEGIES

The first affirmative strategy focuses on equality of opportunity as the criterion for justice. Nozick’s Entitlement Theory pretends that successful individuals owe nothing to anyone other than themselves – they own their talent and spirit of entrepreneurship. In reality, successful individuals owe many debts to government, schools, colleges, and to many other elements of the society of which they are a part. According to Martin McMahon, professor of law at the University of Florida College of Law, many of our wealthiest citizens have acknowledged these debts: 6

Warren Buffett, who perennially appears as one of the five richest Americans in the Forbes 400 list, has said the following: “I personally think that society is responsible for a very significant percentage of what I've earned. If you stick me down in the middle of Bangladesh or Peru or someplace, you'll find out how much this talent is going to produce in the wrong kind of soil.” William H. Gates, Sr. -- the father of one of the world's richest men and an outspoken opponent of estate tax repeal -- has articulated the point as well: “Like the ‘great man’ theory of history, our dominant ‘great man’ theory of wealth creation borders on mythology. Such folklore fills the pages of business magazines. In a recent interview, one chief of a global corporation was asked to justify his enormous compensation package. He responded, ‘I created over $ 300 billion in shareholder value last year, so I deserve to be greatly rewarded.’ The operative word here is ‘I.’ There was no mention of the share of wealth created by the company's other 180,000 employees. From this sort of thinking, it is a short distance to, ‘It's all mine’ and, ‘Government has no business taking any part of it.’” There is no question that some people accumulate great wealth through hard work, intelligence, creativity, and sacrifice. Individuals do make a difference, and it is important to recognize individual achievement. Yet it is equally important to acknowledge the influence of other factors, such as luck, privilege, other people's efforts, and society's investment in the creation of individual wealth. (Boston College Law Review, Sept. 2004, pp. 1102-1103)

These debts to society justify a system of redistributive taxation to support public schools, welfare systems, and other elements of the good society. From behind a “veil of ignorance,” individuals would embrace a social contract that provides opportunity to all, regardless of race, class, or social position.

The second affirmative strategy begins with the right to life as a criterion for justice. Life is a prerequisite for the enjoyment of all rights, including the elements of justice. The key problem with Nozick’s Entitlement Theory is that it improperly elevates property rights over the right to life. Nozick’s theory, if brought to societal prominence, would eliminate all welfare systems and destroy the safety net preventing starvation. While it is true that Nozick praises altruistic acts, his Entitlement Theory actually creates disincentives for altruistic acts. Altruism, while praiseworthy, is incapable of meeting the level of need. Rawls properly emphasizes justice demand for government to use redistributive taxation to provide a social safety net.

The final affirmative strategy argues that reducing income inequality should be the criterion for a good system of justice. Income inequality seriously undermines the quality of American society. Rawls’ Difference Principle directly addresses this problem by showing that income difference is acceptable only when it works to the advantage of all members of a society. Nozick, on the other hand, gives property owners every reason to ignore income inequality. NEGATIVE STRATEGIES

The first negative strategy argues that the preservation of liberty should be the criterion for justice. Interestingly, even John Rawls argues for the primacy of liberty by making it his first principle of justice. The Difference Principle, arising from his second principle of justice, applies only if the first principle has been satisfied. Nozick argues that people have a liberty interest in the products of their own labor. Rawls’ Difference Principle, on the other hand, redistributes property as if it is unowned.

The second negative strategy endorses property ownership as the criterion for justice. The capitalist system can exist only if property ownership is protected. This case argues that Nozick’s Entitlement Theory supports capitalism and Rawls’ Difference Principle undermines it. Rawls’ “maximin principle” says that we should always act in such a way as to prevent the worst outcome. But capitalism thrives when entrepreneurs are willing to take chances. Entrepreneurship is based on optimism, rather than pessimism. Alan Goldman, professor of philosophy at the University of Miami, explains the problem with the “maximin principle:”

First, it can be pointed out that in ordinary life we normally do not act in a maximin fashion even if we are uncertain about the probability of various situations occurring. If it is a nice day and the chances of rain seem slight, we do not walk around with raincoat and umbrella on the grounds that the worst possible outcome would be to get caught in the rain without them. Rather we play percentages to maximize expected utility. (John Rawls’ Theory of Social Justice, 1980, p. 454)

The final case argues that the criterion for justice should be “giving people what they are due” – a justice approach based on “just deserts.” Rawls’ Difference Principle calls for a system of redistributive taxation so that what belongs to one person can be taken so that it can be given to someone else. Nozick argues that justice is defined by “just acquisition” – whatever a person justly acquired should belong only to that person. Only Nozick’s theory is consistent with the notion of “just deserts.” 7

AFFIRMATIVE CASE #1: RAWLS’ DIFFERENCE PRINCIPLE BEST ENSURES The thesis of this case is that Rawls’ Difference Principle should be preferred over Nozick’s Entitlement Theory because Rawls best ensures equality of opportunity. Equality of opportunity has long been understood as an inalienable right, and, therefore, a key criterion for justice. Nozick incorrectly identifies a strong government as a barrier to wealth creation. He believes that entrepreneurs accumulate wealth on their own, with no assistance from government or society. In reality, robust government action is required if equality of opportunity is to be extended to persons now subject to race or class discrimination. Rawls’ Difference Principle, evaluating justice policy from behind a Veil of Ignorance, best ensures equal opportunity. OBSERVATIONS: I. EQUALITY OF OPPORTUNITY IS THE CRITERION FOR JUSTICE. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 167. Equality of opportunity is taken as a rule of justice, and deviations from it bear the taint of illegitimacy and unfairness. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 166. Let every individual be assured an equal opportunity with every other individual to gain the goods and achieve the benefits which society affords. No one must enter the contest under socially-imposed handicaps. It is society's duty to see that all have an equal position at the starting gate. Then the race goes to the swiftest, the prize to the most deserving. That way we not only achieve justice among groups but also assure social progress. Each can rise as far as his talents and ambition will take him, so none can justifiably look with envy at those above. Equal opportunity releases energy, assures progress and innovation, and treats everyone with equal justice. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM URBAN LAW JOURNAL, Spr. 1996, 632. Equality, like liberty, is fundamental to the United States. Before proclaiming the inalienable right to liberty, the Declaration of Independence asserts that "All men are created equal." Indeed, the "" of the American Revolution, according to Gordon Wood, lies in the revolution's abolition of a system of privilege, hierarchy, and patronage and the establishment of a political (and social) system based on equally free and independent men. CONTENTIONS: I. NOZICK’S ENTITLEMENT THEORY DENIES EQUALITY OF OPPORTUNITY. A. NOZICK ARGUES FOR A NIGHT WATCHMAN STATE – A GOVERNMENT THAT WOULD EXIST ONLY FOR THE PROTECTION OF PROPERTY RIGHTS. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 192. Nozick's State is to have one function only, the protection of property. To protect their property, its citizens hire a kind of giant security firm. Such an agency will have to be paid. Those with the most property to protect will be able and willing to pay most for the services of the security agency. Thus from the outset, the only State institution Nozick permits is inevitably controlled by the wealthy and they can use it to further their own interests. This was the situation in Western societies up to the end of the nineteenth century. Political power was exercised by the wealthy who promulgated notions such as free enterprise and liberty while practising protectionist economic policies and suppressing individual rights. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 189. For Nozick any State intervention, except the police function of his 'night watchman' State, is unjust. Any participation by the State in the distribution of property is therefore unjust. 8

B. SINCE ONLY MINIMAL GOVERNMENT IS NEEDED, NOZICK ARGUED FOR THE ELIMINATION OF ALMOST ALL TAXATION. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 786. The question is not whether Nozick's theory logically denounces progressive taxation. In fact, Nozick's theory logically disallows almost all taxation. Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYU JOURNAL OF LAW & LIBERTY, 2005, 936. Libertarians object to welfare rights as requiring impermissible taxation. Nozick, for example, says that “Taxation of earnings from labor is on a par with forced labor.” C. NOZICK WANTS A GOVERNMENT SO WEAK THAT IT CANNOT ENGAGE IN THE EQUALIZATION OF RESOURCES. Ron Replogle, (Prof., Philosophy, New York U.), CANADIAN JOURNAL OF POLITICAL SCIENCE, Mary. 1984, 67. Nozick presents his "entitlement theory of justice in holdings" as a strict implication of the rights- thesis and (what he takes to be) its most plausible explanation. He insists that no genuinely rights-based theory of distributive justice condones state action designed to realize some structural profile of holdings. Except where questions arise of compensating individuals for past injustices, he believes that the disposition of holdings among individuals is a matter of ethical indifference. This is a central plank in Nozick's brief for the minimal (nightwatchmen) state. It supports his contention that distributive claims typically founded on need, merit, equality and so forth, confer no justification on the more-than-minimal state. D. ENTITLEMENT THEORY WOULD ABANDON EQUAL RIGHTS LEGISLATION. Edward Andrew, (Prof., Political Science, Scarborough College of the U. of Toronto), CANADIAN JOURNAL OF POLITICAL SCIENCE, Sept. 1985, 548. Income policies, minimum wage laws, collective bargaining agreements and equal rights legislation are violations of natural justice. if, and only if, individuals have, as Locke and Nozick assert, a in their person. For example, if one's ability to labour is private property, alienable at will, a woman should have the right to take a job for half the wages of a man doing the equivalent job. Equal rights legislation would restrict her ability to sell her abilities at the market price, would violate the natural rights of private property to alienate an asset at will. E. NOZICK INCORRECTLY ASSUMES THAT WEALTH IS ACCUMULATED WITHOUT ANY ASSISTANCE FROM GOVERNMENT OR OTHER INDIVIDUALS. 1. Government provision of infrastructure enables the accumulation of wealth. Martin McMahon, (Prof., Law, U. Florida College of Law), BOSTON COLLEGE LAW REVIEW, Sept. 2004, 1101-1102. The libertarian claim is simply not supportable. In a modern industrialized society everyone benefits from governmental infrastructure. Incomes are not earned solely by one's own efforts. In addition to the head start most of the wealthy receive by being born into affluence, which alone destroys the baseline for Professor Nozick's proceduralist argument that everyone starts out equally, everyone's pre-tax income is earned in an infrastructure created by government. Often the benefits conferred on the wealthy by government go beyond mere infrastructure and are subsidies that are in essence the seed money or even the life-blood of their enterprises. Patents, which are very important in building great wealth, often represent the of public resources -- ideas that were based largely on publicly funded research. Another public resource, the telecommunications broadcast spectrum, has been made available free of charge to entrepreneurs, as well as to large corporations, and has been a source of great wealth. The bottom line is that "the baseline for determining the benefits of government is the welfare a person would enjoy if government were entirely absent; the benefit of government services must be understood as the difference between someone's level of welfare in a no-government world and their welfare with government in place." 9

2. Social interaction plays a key role in wealth accumulation. Martin McMahon, (Prof., Law, U. Florida College of Law), BOSTON COLLEGE LAW REVIEW, Sept. 2004, 1102-1103. Warren Buffett, who perennially appears as one of the five richest Americans in the Forbes 400 list, has said the following: “I personally think that society is responsible for a very significant percentage of what I've earned. If you stick me down in the middle of Bangladesh or Peru or someplace, you'll find out how much this talent is going to produce in the wrong kind of soil.” William H. Gates, Sr. -- the father of one of the world's richest men and an outspoken opponent of estate tax repeal -- has articulated the point as well: “Like the ‘great man’ theory of history, our dominant ‘great man’ theory of wealth creation borders on mythology. Such folklore fills the pages of business magazines. In a recent interview, one chief of a global corporation was asked to justify his enormous compensation package. He responded, ‘I created over $ 300 billion in shareholder value last year, so I deserve to be greatly rewarded.’ The operative word here is ‘I.’ There was no mention of the share of wealth created by the company's other 180,000 employees. From this sort of thinking, it is a short distance to, ‘It's all mine’ and, ‘Government has no business taking any part of it.’” There is no question that some people accumulate great wealth through hard work, intelligence, creativity, and sacrifice. Individuals do make a difference, and it is important to recognize individual achievement. Yet it is equally important to acknowledge the influence of other factors, such as luck, privilege, other people's efforts, and society's investment in the creation of individual wealth. 3. A strong government is essential to the maintenance of a fair financial marketplace. Martin McMahon, (Prof., Law, U. Florida College of Law), BOSTON COLLEGE LAW REVIEW, Sept. 2004, 1103-1104. Consider the many components of the social framework that enable great wealth to be built in the United States. Among them are a patent system, enforceable contracts, open courts, property ownership records, protection against crime and external threats, and public education. Even the stock market is a form of socially created wealth that provides liquidity to enterprises. David Blitzer, the chief investment strategist at Standard and Poors, recently wrote, "Financial markets are as much a social contract as is democratic government." When faith in this social system is shaken, as it has been by recent breaches of trust, we see how quickly individual wealth evaporates. As this passage so clearly explains, the entire infrastructure of society, which is funded by taxes, is an absolute prerequisite to the ability to earn the munificent incomes realized by America's richest citizens. Liam Murphy and Thomas Nagel have elegantly expressed and expanded on these principles in The Myth of Ownership: “There is no market without government and no government without taxes; and what type of market there is depends on laws and policy decisions that the government must make. In the absence of a legal system supported by taxes, there couldn't be money, banks, corporations, stock exchanges, patents, or a modern -- none of the institutions that make possible the existence of almost all contemporary forms of income and wealth.” This is a proposition with which no one reasonably can argue. Because this proposition is immutable, the starting point for Professor Nozick's philosophy -- Hobbes' man in a state of nature -- that leads him and others to find strict moral limits on society's right to levy taxes is so counterfactual that their entire argument vaporizes with no further criticism needed. F. REDISTRIBUTIVE TAXATION IS NECESSARY TO ENSURE THAT ALL PERSONS HAVE THE OPPORTUNITIES THAT WEALTHY INDIVIDUALS ALREADY ENJOY. Sagit Leviner, (J.D. Candidate), VIRGINIA TAX REVIEW, Fall 2006, 419. Unfortunately, as a practical matter, it is usually impossible to determine which person - or even which resource - produces or deserves what share of the total output. However, once the predisposition toward the merit of the market distribution is challenged and the need for joint efforts is validated, it is easier to reach the conclusion that some form of taxation in general and redistribution in particular are necessary in order to ensure that all members of the society enjoy a fair share of the societal output. 10

Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 192-193. Nozick goes so far as to argue that all taxation is confiscation. He does not explain why people continue to elect who confiscate their income. Perhaps it is because such people have more imagination than Nozick. They pay taxes which are used to finance income-maintenance programmes because they know there is a risk that they may one day be without incomes due to unemployment, illness or old age. Living in the real world of inequalities and uncertainties rather than in Nozick's fantasy world, they are not assured of being able to provide for such contingencies themselves. In many countries redistribution is not from the rich to the poor but among middle-income groups who may pay high taxes but who receive many benefits in the form of government financed health, education and housing services. The government policies which Nozick and Friedman regard as confiscatory are often little more than the pursuit of enlightened self-interest by groups within societies. II. RAWLS’ DIFFERENCE PRINCIPLE BEST ENSURES EQUALITY OF OPPORTUNITY. A. RAWLS UNDERSTANDS THAT GOVERNMENT SUPPORT OF EDUCATION IS ESSENTIAL FOR EQUALITY OF OPPORTUNITY. Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 63. Rawls takes the position that a "perfectly competitive market" set against the background of just institutions tends to satisfy the compensatory requirement of the difference principle. Such a market rewards individuals according to the marginal product of their , and since the implementation of fair equality of opportunity policies removes barriers of entry into different jobs and reduces imperfections in the market for loans or subsidies for education and training, there will be a strong tendency for differences in unequal returns to be equalized. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 776. One aspect of the equality upon which the bargainers in the original position would insist is equality of opportunity. By this Rawls means "equal chances of education and culture for persons similarly endowed and motivated." Thus Rawls reasons that the original position would result in equality of opportunity limited by "endowment" or natural ability. But inequalities in "endowment" and motivation lead, in a free market, to inequalities in distribution of resources, an effect to which inheritance contributes. Rawls recognizes that inequalities will evolve and even welcomes some of this resulting inequality. Nevertheless, Rawls believes that too much inequality is inherently bad in its effect on social institutions. Specifically, Rawls states that social institutions that preserve equality of opportunity are "put in jeopardy when inequalities of wealth exceed a certain limit; and political liberty likewise tends to lose its value, and representative government to become such in appearance only." B. RAWLS PROMOTES A SOCIETY WHERE EQUAL RIGHTS LEGISLATION IS ESSENTIAL TO ENSURE OPPORTUNITY. C.M.A. McCauliff, (Prof., Law, Seton Hall U. School of Law), RUTGERS LAW REVIEW, Winter 2010, 393- 394. Distributive justice is not "the public interest" or "the common good," but rather coordinates with such conceptions because it deals with a sense of fairness in terms of legislation. Eighteenth century liberals looked for a career open to talent (a meritocratic society). Rawls looked for something more foundational: "promoting the independence and self-respect of equal citizens." Fair equality of opportunity is strikingly illustrated in American legal history through the civil rights movement after the Second World War. Once the Supreme Court decided Brown v. Board of Education in 1954, society's attitudes slowly began to change. However, equality of opportunity did not advance appreciably until the Civil Rights Act of 1964 was first enacted and slowly implemented. The Declaration of Independence recognized that "all men are created equal, endowed by their Creator" and spoke of life, liberty and the pursuit of happiness. According to Rawls's position, legislation such as the Civil Rights Act is necessary to realize the ideals of the Declaration. In this way, the Civil Rights Act was designed to ensure not only an abstract, or formal, equality of opportunity, but also the correction of social disadvantage through the prevention of discrimination for a consistently disadvantaged group. The concept of equal educational opportunities means that people are to be educated to their highest capacity along with others sharing the same capacity. 11

C. RAWLS ARGUES THAT THE STATE MUST BE POWERFUL ENOUGH TO ENSURE THAT THE RULES OF THE ROAD ARE FAIR TO ALL CITIZENS. Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 472. Justice as liberal equality is the "road-runner" theory of justice. Its central idea is the "race of life," in which all the contestants are to have a fair or equal starting point. After that let the cinders fall where they may. Justice demands equality of opportunity and some ground rules, together with an umpire to enforce them; but it does not require that everyone reach the finish together. Liberal equality is, in other words, roughly the notion of justice which prevails in America today—for example, we hold elections in which we hope "the best man" will win; we generally hire and pay people on the basis of relevant categories of job- related merit and not extraneous considerations such as religion, smile and personality, or shoe size. D. RAWLS’ VEIL OF IGNORANCE PROVIDES A PROPER DEVICE FOR PROMOTING EQUALITY OF OPPORTUNITY. 1. The Veil of Ignorance offers the means to evaluate equal opportunity in matters of race and social class. Alex Voorhoeve, (Prof., Philosophy, U. North Carolina), GREAT THINKERS A-Z, 2004, 200. To ensure the contract they agree is fair, Rawls places the contracting parties behind 'the veil of ignorance' so they do not know their sex, race, social class, talents and abilities, nor their specific values and aims in life. Behind the veil, the parties have to ask themselves: 'Which distribution of the benefits and burdens of social co-operation do I want, given the fact that, though I am ignorant of the person I will be, I will have to be some person in this society?' 2. Behind the Veil of Ignorance, persons would embrace a social contract agreeing to equalize opportunity. Allen Buchanen, (Prof., Philosophy, U. Minnesota), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 18. The idea of a social contract has several advantages. First, it allows us to view the principles of justice as the outcome of a rational collective choice. Second, the idea of contractual obligation emphasizes that the persons participating in this collective choice are to make a basic commitment to the principles they choose, and that compliance with these principles may be rightly enforced. Third, the idea of a contract as a voluntary agreement for mutual advantage suggests that the principles of justice should be "such as to draw forth the willing cooperation of everyone" in a society, "including those less well situated." Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 34. The veil of ignorance means that the parties choosing principles lack certain kinds of knowledge that might make the bargaining process unfair.' They do not know what position they hold in society, nor what their own particular goals or life-plans might be. They do not know what society they belong to, nor what generation they are. Such particular kinds of knowledge always make it possible for persons to skew principles in their own favor. This would clearly not be fair, and so there must be an adequate veil of ignorance to remove such possibilities. 3. The Veil of Ignorance best provides for the impartial application of justice principles. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 99-100. Rational individuals setting the terms of a cooperative society would agree to institute a social safety net, given that its benefits in bad times would far outweigh its burdens in good times. Rawls provides a partial example, arguing in A Theory of Justice that people without knowledge of their circumstances in society - under the "veil of ignorance" he imposed so that self-interested bargaining would approximate the impartiality associated with justice - would be risk averse and adopt principles to protect the least advantaged, one of whom they might turn out to be. Rawls thought the contractors would settle on an egalitarian principle by which inequalities can be justified only if they benefit the worst off. It is at least arguable, however, that, on both precautionary and efficiency grounds, they would prefer to adopt a right to a social minimum. 12

AFFIRMATIVE CASE #2: RAWLS’ DIFFERENCE PRINCIPLE BEST GUARANTEES THE RIGHT TO LIFE The thesis of this case is that Rawls’ Difference Principle should be preferred over Nozick’s Entitlement Principle because Rawls best ensures the right to life. The clearest reason to reject Nozick’s Entitlement Theory is that it insists that government should not help the needy, even if starvation is the result. Such a theory should not qualify as a reasonable standard of justice. OBSERVATIONS: I. PRESERVING HUMAN LIFE SHOULD BE REGARDED AS THE CRITERION FOR JUSTICE. A. HUMAN LIFE IS THE PRECONDITION FOR ALL HUMAN VALUES. Simone Roach, (Ph.D.), THE HUMAN ACT OF CARING, 1992, 23. Human life is the precondition for all values attributed to human persons. Human life has been referred to as "an almost absolute value in history." The need to protect human life and the more stringent imperative of do not kill are regarded as basic, constitutive elements of the moral life of any society. The relationships embodied in and shaped by humans rest on the inviolability of human life. The inestimable value of human life is based on the consideration that each person has been raised to a sublime dignity. B. THE ABILITY TO SAVE A LIFE CREATES A DEMAND FOR JUSTICE. David Elkins, (Prof., Law, SMU School of Law), BYU JOURNAL OF PUBLIC LAW, 2007, 293. This Article proposes that the duty to act arises when one individual is in need of some good and another is able to satisfy that need at a non-prohibitive cost to himself. Imagine, for instance, a desert traveler who encounters an individual dying of thirst. Assuming that the traveler is carrying with her more than enough water to meet her own needs, does she have a moral obligation to give the other some water and thus to save his life? The proposed duty to act suggests that she does have a moral obligation to share her water. Additionally, were she, out of either apathy or maliciousness, to ignore the other's needs and do nothing, she would be acting immorally. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 100-101. Some moral knowledge may be grasped directly rather than derived through reason. We know from experience that there is some such knowledge in many domains - knowledge that is so complex or contextual as to be irreducible to general principles, or so basic that it can only be recognized, not explained in other terms. Two examples of the latter, claims which Peter Singer thought so self-evident that no argument was necessary or even available, are (1) that suffering and death from lack of food, shelter, and medical care are bad, and (2) if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it. C. EVEN LIBERTARIANS BEGIN WITH THE PREMISE THAT EVERYONE HAS A RIGHT TO LIFE. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 93-94. Let us begin by accepting, as we should, the same core beliefs on which the libertarian objection to redistribution rests: the intrinsic value of leading one's own life, and the self-ownership this implies. The redistributionist claim here builds on this same foundation, but it asserts that respect for personal autonomy gives rise not only to the liberties that allow one to exercise it, but to certain economic rights as well. Here is President Franklin Roosevelt's version, from his celebrated 1944 State of the Union address proposing a "Second Bill of Rights" to guarantee economic security: “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights - among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our nation has grown in size and stature, however - as our industrial economy expanded -- these political rights proved inadequate to assure us equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.” 13

D. THE DEMANDS OF JUSTICE WILL NOT ALLOW A WEALTHY NATION TO IGNORE STARVATION AMONG ITS OWN CITIZENS. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 101. I believe that the injustice that gives rise to an economic right is best captured by Rousseau's remark quoted earlier, that it is unjust "for the few to gorge themselves on superfluities while the starving multitude lacks necessities." An economic right that protects against severe deprivation in the midst of excess is more morally secure, and partly for that reason, more practically promising, than these other formulations. The right is best expressed as a priority right, giving the worst-off a claim to resources necessary for subsistence before they can be used by the better-off. E. A JUST GOVERNMENT HAS AN OBLIGATION TO HELP THOSE WHO CANNOT HELP THEMSELVES. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 96-97. Unequal opportunity and destitution are not simply the inevitable and unavoidable results of blameless individual choices, as the libertarian assumes. They may also be traced to the government's decision not to alter those foreseeable results (or, what I shall not argue here, its decision to institute and enforce such a system to begin with by classifying essential resources as privately held property rather than owned in common or entitlements of citizenship). On this view, justice is not confined to the rectification of wrongdoing; a government's decision to ignore desperate hurricane survivors it could help would indeed be wrongful and unjust, for example. The libertarian's contrary position depends on an additional, quite questionable claim: that the concerns of justice exclude the state's failure to act no matter how dire the consequences or how easy it would be to avert them. CONTENTIONS: I. NOZICK’S ENTITLEMENT THEORY FAILS TO PROPERLY VALUE HUMAN LIFE. A. NOZICK’S THEORY ELEVATES THE RIGHT TO LIFE FOR SOME WHILE IGNORING THIS RIGHT FOR OTHERS. Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 159-160. In fact, Nozick's overall view begins to appear irrational: how can one hold both that rights are necessary to protect and guarantee the valuable capacity to live a meaningful life, and that people only have rights to some of the distributable goods which are necessary in order to have any chance of living meaningful lives? Of course, it would not be irrational to hold these two views in conjunction if one believed, as Nozick presumably does, that one could not succeed in providing sufficient shares of all necessary distributable goods to all people—that one could only provide sufficient shares of the welfare goods to some by denying sufficient shares of liberty to the others. But, as I have argued, it is simply false that the restrictions on liberty necessary to guarantee the welfare rights of all would be so severe as to prevent the victims of, say, taxation, from living decent and fulfilling lives. Nor is it any less false that such taxation would prevent them from living meaningful lives. If the meaning of life is our concern, then starvation, not taxation, is our worthy foe. B. NOZICK’S ENTITLEMENT THEORY INVITES INACTIVITY EVEN IN THE FACE OF STARVATION. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 345. The question that comes immediately to mind when one learns of Nozick's absolute opposition to redistribution is whether Nozick is prepared to see people starve to death. Evidently, Nozick is indeed prepared to tolerate starvation if the only alternative is redistribution, but he does not squarely confront this issue. 14

Theo Papaioannou, (Prof., Politics, The Open University), INTERNATIONAL POLITICAL SCIENCE REVIEW, June 2008, 273. In Nozick's view, the laissez-faire process distributes resources in accordance with the capacities and talents that each individual possesses. From this it follows that, in the state of nature, individuals who possess talents and capacities become private property owners. So, for Nozick no one in the state of nature is forced by initial inequality of resources not to possess private property. Nozick's argument is not convincing. If it is true that no one can be the owner of the fruits of his talents and capacities unless those have been developed in the relational context of society, then it must be also true that the individuals who are excluded from the process of original acquisition because they are physically incapable of work are likely to starve. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 347. In the Preface to Anarchy, State, and Utopia, Nozick writes that "intellectual honesty demands that, occasionally at least, we go out of our way to confront strong arguments opposed to our views." In his discussion of Rawls, Nozick insists that we "try out principles in hypothetical microsituations." Nozick appears to violate both of these strictures. He goes out of his way to conjure up fantastical counterexamples to opposing theories. However, he fails to confront squarely the suffering that plausibly could exist under his system, as the result of starvation, and horrific debt collection practices. C. WEALTHY CITIZENS SHOULD FIND IT IN THEIR SELF INTEREST TO ASSIST THE POOR. Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 269. When some members of society have insufficient means to subsist in a manner consistent with human dignity, there is a utility loss for all who come into contact with this human suffering. Even such an opponent of redistribution as Charles Murray has observed that "for the sake of my own quality of life, I do not want to live in a Calcutta with people sleeping in the streets in front of my house." Mickey Kaus has similarly observed that "in many of our major cities, the latter groups -- (criminals and the homeless) -- have all but ruined the enjoyment of communal facilities for the rest of society." The aesthetic disutility resulting from contact with the poor is more than merely psychological; it results in real economic loss for the affected communities. Other things being equal, people who have the option to avoid contact with areas in which the symptoms of poverty are pervasive will tend to do so. Similarly, market transactions will be performed outside blighted communities rather than within them whenever possible. Tourism falls, businesses fold, and people seek housing in different areas, making the community in question even less desirable than before. Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 270. Another kind of disutility resulting from poverty stems from the possibility that vast disparities in wealth and income create conditions conducive to crime and rioting. By decreasing disparities, the relatively poor have less of an incentive to risk punishment by resorting to crime and violence. This decrease in incentive would seem to result chiefly from the increased income of the relatively poor, since the needs which might motivate a poor person to resort to crime would be alleviated. Perhaps more important, an individual with a minimally adequate income (and the accompanying dignity and social status) has "more to lose" from resorting to crime and violence. It is also possible that a reduction in ostentatious displays of wealth, which might occur if overall inequality were reduced, would reduce the sense of outrage and injustice that may motivate some social unrest. In a larger, societal sense, the poor may indeed have "more to gain" by breaking the law when inequalities are vast, if those inequalities bear little relation to natural ability. Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 271. The social costs of crime and rioting extend, of course, far beyond their immediate victims. Law enforcement costs are involved in quelling violence and catching criminals, as well as social costs in the punishment of criminals. In addition, the insecurity which such violence elicits exacts both financial and nonfinancial costs on those in the area. Indeed, one cost of crime may be the perpetuation of poverty, since crime in an impoverished area will tend to discourage the very investment that might improve economic conditions for residents. 15

D. NOZICK’S SUGGESTION THAT WELFARE SHOULD BE A MATTER OF PRIVATE CHARITY, RATHER THAN GOVERNMENT ACTION, IS UNSATISFYING. 1. Nozick’s Entitlement Theory invites the wealthy to ignore philanthropy and to let the poor suffer. James Aune, (Prof., Texas A&M U.), SELLING THE FREE MARKET, 2001, 93-94. There is nothing in Nozick's theory that would even encourage philanthropy. In fact, people's respect for other's rights should positively encourage everyone to bear the consequences of any lack of entrepreneurial foresight on their part. Otherwise, given the principles of rational choice, some future family might trust to philanthropy for a bailout and thus fail to exercise sufficient caution in expenditures or in procreation. 2. Private philanthropy could never match the level of need. Thomas Nagel, (Prof., Philosophy, New York U.), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 199-200. Nozick would reply that such ends can be achieved by voluntary donations rather than by compulsion, and that people who are well-off and who deplore the existence of poverty should donate significant portions of their assets to help those who are unfortunate." But this is no more plausible coming from Nozick than it was coming from . Most people are not generous when asked to give voluntarily, and it is unreasonable to ask that they should be. Admittedly there are cases in which a person should do something although it would not be right to force him to do it. But here I believe the reverse is true. Sometimes it is proper to force people to do something even though it is not true that they should do it without being forced. It is acceptable to compel people to contribute to the support of the indigent by automatic taxation, but unreasonable to insist that in the absence of such a system they ought to contribute voluntarily. The latter is an excessively demanding moral position because it requires voluntary decisions that are quite difficult to make. Most people will tolerate a universal system of compulsory taxation without feeling entitled to complain, whereas they would feel justified in refusing an appeal that they contribute the same amount voluntarily. This is partly due to lack of assurance that others would do likewise and fear of relative disadvantage; but it is also a sensible rejection of excessive demands on the will which can be more irksome than automatic demands on the purse. 3. Private altruism could never replace the role of government in welfare. Lee Anne Fennell, (Counsel, State and Local Legal Center), WISCONSIN LAW REVIEW, Mar. 1994, 275. Altruists may end up paying for more than their "fair share" (and getting the benefit of only a suboptimal result) as a result of other people's attempts to free-ride. Or, altruists may no longer feel it is "worth it" to contribute, without the assurance that everyone else will contribute as well. They may be willing to chip in to purchase a comprehensive poverty alleviation program, the argument runs, but unwilling to make a "drop in the bucket" contribution which would make no discernible difference in the overall poverty condition. Taken together, these "free-rider" considerations make a compelling case for the government provision of welfare. II. RAWLS’ DIFFERENCE PRINCIPLE PROPERLY VALUES HUMAN LIFE. A. RAWLS HOLDS THE WELFARE OF ALL IS PROTECTED WHEN CARE IS GIVEN TO THE LEAST ADVANTAGED. Tom Beauchamp, (Prof., Philosophy, Georgetown U.), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 136. The difference principle says that social and economic inequalities are to be permitted only if they are arranged to the greatest benefit of the least advantaged members of society. This principle expresses Rawls' conviction that the justice of the basic structure is to be gauged by its tendency to counteract the inequalities caused purely by luck of birth (family and class origins), natural endowment, and historical circumstance (accidents over the course of a lifetime). This conviction helps explain why Rawls refers to his conception of justice as egalitarian. He means that his theory requires society to reduce certain inequalities by pooling advantageous resources for the benefit of everyone, and in particular the least advantaged. He even points out that "the first problem of justice" is to delineate principles of justice that can regulate inequalities and can be used to rearrange the long-lasting effects of social, natural, and historical contingencies. The difference principle rests on the view that because inequalities of birth, historical circumstance, and natural endowment are undeserved, society should reduce inequalities by selecting its naturally disadvantaged members and redressing their unequal situation. "The idea," says Rawls, "is to redress the bias of contingencies in the direction of equality." 16

B. RAWLS’ DIFFERENCE PRINCIPLE CREATES A SOCIAL OBLIGATION FOR THE WELFARE OF THE LEAST ADVANTAGED. Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 57. Rawls views his well-ordered society as a cooperative social union in which everyone who is able is expected to live up to a social obligation. This view finds expression in the difference principle in its requirement that members of the most advantaged stratum must contribute to the common good, which, thanks to the "chain-connectedness" assumption, Rawls interprets as improving the well-being of the least advantaged segment. The principle is one of "mutual benefit" and those who are better situated deserve their position only if their productive effort benefits others. Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 58. In contrast to market principles of distribution, the difference principle "does not weight men's share in the benefits and burdens of social cooperation according to their social fortune or their luck in the natural lottery." "No one deserves his greater natural capacity nor merits a more favorable starting place in society" and "the naturally advantaged are not to gain merely because they are more gifted." Instead, those who gain from their good fortune must work to improve the circumstances of those who have lost out, and their greater rewards constitute a kind of compensation for the costs incurred in the fulfillment of their social obligation. Sagit Leviner, (J.D. Candidate), VIRGINIA TAX REVIEW, Fall 2006, 420. Political, economic, and social relationships among individuals are not only a matter of choice but a condition inherent to the nature of the person. By denying the importance of cooperation to human existence we undermine the infrastructure upon which it depends. The joint venture is not merely a mechanism of production but, more profoundly, it represents a vision of the person and of civil society with shared obligations and privileges. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 170. The difference principle asserts that inequalities are justifiable only if they are to the advantage of the worst-off representative man or group. We are to agree to consider the unequal distribution of talents and abilities among a population as a general social resource which can be arranged to work to the advantage of all, rather than as a source of strength for some and weakness for others. No one is to benefit from the contingencies of nature or social position "except in ways that redound to the well-being of others". In the conception of justice as fairness, people in effect agree to share one another's fate. Reciprocity and mutual benefit must prevail over considerations of social efficiency and technocratic values. 17

AFFIRMATIVE CASE #3: RAWLS’ DIFFERENCE PRINCIPLE LIMITS INCOME INEQUALITY The thesis of this case is that Rawls’ Difference Principle is superior to Nozick’s Entitlement Theory because only Rawls offers the philosophical underpinnings of a solution to income inequality. Rawls argues that the acquisition of wealth should always be tempered by caring for the needs of the least advantaged. Nozick argues that owners of property can, if they choose, ignore the needs of the poor since their wealth was justly acquired. Only Rawls offers a theory of justice that will place limits on income inequality. OBSERVATIONS: I. NOZICK’S ENTITLEMENT THEORY CLAIMS THAT WEALTHY INDIVIDUALS HAVE NO JUSTICE RESPONSIBILITY TO THE POOR. A. NOZICK’S ENTITLEMENT THEORY IS BASED ON HISTORICAL PRINCIPLES. Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 50. The general outlines of the entitlement theory illuminate the nature and defects of other conceptions of distributive justice. The entitlement theory of justice in distribution is historical; whether a distribution is just depends upon how it came about. Stathis Banakas, (Prof., Law, U. East Anglia), LOUISIANA LAW REVIEW, Summer 2007, 1025-1026. Nozick is led to the conclusion that a fundamental principle of justice is entitlement to just holdings. Such entitlement for Nozick comes only from an original acquisition, exchange, or gift, and cannot be violated for the pursuit of any social goal. Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OF THE JUST SOCIETY, 1986, 93-94. Principles of justice, Nozick explains, are most revealingly characterized in terms of considerations of history, of end-states, or of patterns. A historical principle of justice is one which makes the justice of a distribution depend on how it came about. Under such a dispensation a person's past actions and situation may create differential entitlements or deserts to things. An end-state principle of justice is one which makes the justice of a distribution depend on the conformity of a state of affairs to some structure or goal. A patterned principle of justice is one which makes the justice of a distribution depend on some specific historical factor, some characteristic of individuals such as moral worth, talent or industriousness. Rawls's Difference Principle is an example of an end-state principle, since it is concerned only with an overall structural result — that the welfare of the worst-off is maximized. B. NOZICK ARGUES THAT JUSTICE IS VIOLATED WHEN WEALTHY INDIVIDUALS ARE TAXED IN ORDER TO ASSIST THE POOR. Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 146. According to the "entitlement conception of justice" which Nozick presents in Anarchy, State, and Utopia, the non-voluntary redistribution of income to achieve "equality of material condition" is morally impermissible. In fact, Nozick's argument is even more far-reaching. He believes that any non-voluntary redistribution of income is morally impermissible. In particular, he believes that it is morally illegitimate for any government to tax some of its citizens in order to provide food, shelter, medical care or social services for other, less fortunate citizens. C. NOZICK’S ENTITLEMENT THEORY CLAIMS THAT JUSTICE SHOULD NEVER BE CONCERNED WITH INEQUALITY. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 59. The implications of Nozick's theory are startling. Not only does it imply, as he suggests, that taxes are a form of forced labor, but it also sets no "utility floor" or bottom to the plight of those worst off, it requires no limits on the disparity between rich and poor, and it provides no protections against a decline in overall welfare." Thus, clearly it already stands in tension with utilitarian concerns for maximizing welfare and with Rawlsian concerns for protecting the disadvantaged. As one critic puts it, "so long as rights are not violated it matters not for [Nozick's] morality. . . how a social system actually works, how individuals fare under it. . . or what misery or inequalities it produces." 18

II. RAWLS’ DIFFERENCE PRINCIPLE OFFERS A PHILOSOPHICAL JUSTIFICATION FOR LIMITING INEQUALITY. A. RAWLS PROVIDES THE PHILOSOPHICAL BASIS FOR AMERICA’S MODERN SAFETY NET. Adam Hunt, (J.D. Candidate), NYU JOURNAL OF LAW & LIBERTY, 2009, 563. Rawls' position is in some ways consonant with a theory of - Rawls touts the importance of freedom from interference, particular in the realm of religious freedom, limited only by the "state's interest in public order and security." But Rawls does envisage legitimate government interference to correct for what he believes to be artificial social and economic contingencies. He harbors no direct hostility towards capitalism, but stresses that rule of law characteristics (and basic civil liberties such as freedom of belief) are a floor, rather than a ceiling, for government activity. Thus, Rawls' political theory, and his articulation of distributivist justice, or "justice as fairness," is often credited as offering a theoretical defense of "big government" policies such as welfare and the "rights revolution" of the Warren Court. B. RAWLS HOLDS THAT THE DEMANDS OF JUSTICE REQUIRE CARE FOR THE LEAST ADVANTAGED. Eugene Borowitz, (Professor of Education and Jewish Religious Thought at Hebrew Union College), JOURNAL OF THE AMERICAN ACADEMY OF RELIGION, Sept. 1976, 508. If we take the stranger, the orphan, the widow and the poor as Biblical equivalents for "the least advantaged" then Rawls' sense of justice is akin to that of the Bible. III. INCOME INEQUALITY THREATENS THE FABRIC OF AMERICAN SOCIETY. A. INCOME INEQUALITY THREATENS THE ECONOMIC STABILITY OF THE NATION. a. Large income disparities were a key cause of the Great Depression. THE INDEPENDENT, Oct. 18, 2011. Retrieved Nov. 8, 2011 from Nexis. The link between huge income disparities and financial crises is more than just a coincidence. J K Galbraith, in his definitive work, The Great Crash, 1929, identified "the bad distribution of income" as one of five factors that contributed to the stock-market plunge and subsequent Great Depression. With more money than they know what to do with, the super-rich spend on luxuries and speculative investments only to pull them back sharply when exuberance is exhausted and fear threatens to take over. This sort of economy is more volatile than one that is more broadly based, one in which the 99 per cent holds more of the economic power. b. Large income disparities were a key cause of the Great Recession of 2008. U.S. Congress Joint Economic Committee Report, INCOME INEQUALITY AND THE GREAT RECESSION, Sept. 2010, 5. Severe income inequality may make the economy more vulnerable to a deep recession. In the case of the Great Recession, income inequality fueled economic instability in two ways. First, stagnant middle class incomes meant increased demand for credit, fueling an unsustainable bubble. Second, the ever richer rich amassed increasing sums of money to invest in new financial products. Bank ‐ allowed for the development of exotic financial instruments, and the collapse of this house of cards‐ instigated the Great Recession. c. Large income disparities put the future of the American economy at risk. U.S. Congress Joint Economic Committee Report, INCOME INEQUALITY AND THE GREAT RECESSION, Sept. 2010, 1. High levels of income inequality may precipitate economic crises. Peaks in income inequality preceded both the Great Depression and the Great Recession, suggesting that high levels of income inequality may destabilize the economy as a whole. B. INCOME INEQUALITY THREATENS THE POLITICAL STABILITY OF THE NATION. John Rawls, (Prof., Philosophy, Harvard U.), quoted in POLICY ANALYSIS, July 14, 2009, 16-17. Very large wealth differentials may make it practically impossible for poor people to be elected to political office or to have their political views represented. These inequalities of wealth, even if they increase the material position of the least advantaged group, may need to be reduced in order [to secure “the fair value of the political liberties”]. 19

CONTENTIONS: I. THE HISTORICAL ASSUMPTIONS MADE IN NOZICK’S ENTITLEMENT THEORY ARE FLAWED. A. NOZICK FALSELY ASSUMES THAT MOST WEALTH IS THE PRODUCT OF HARD WORK AND TALENT. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 191. The actual distribution of rewards in a market economy is justified by Nozick and Friedman on the basis of a vacuous theory of moral desert. The wealthy deserve their wealth because they have worked for it. Friedman and Nozick ignore the fact that much wealth was accumulated not by work or the exercise of talent but by force and exploitation. If a person acquires wealth through hard work or the exercise of exceptional ability he may be said to deserve his wealth but can his descendants, however untalented or idle, be said to deserve their inheritance? Property is a social phenomenon, not the natural phenomenon which Nozick suggests it is, and the form which its ownership and transfer takes is determined by the social and legal arrangements of particular States. Nozick and Friedman attempt to justify as 'natural' the arrangements for the control and transfer of property in advanced capitalist societies. Some North American Indians could not understand the European concept of buying land because, for the Indians, land was part of the natural environment which for them was indivisible. This concept of land might be regarded as 'natural' yet those who held it could never develop the free market which Nozick and Friedman promote. B. ACCUMULATION OF WEALTH IS OFTEN MORE A MATTER OF LUCK THAN SKILL. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 96. However equal the starting point, over time income and wealth will flow away from some and towards others. To some degree, they will flow to the most diligent workers, but mostly they will flow to the lucky ones - the people who have the greatest physical or mental proficiency, or particular talents that happen to be in demand, or investments that pan out. And as their children are afforded educational advantages and inherited wealth, the rich will get richer and the poor poorer, some of them to the point of life-threatening destitution. C. NOZICK’S NOTION OF JUST ACQUISITION OF PROPERTY DOES NOT DESCRIBE THE REAL WORLD. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, Aug. 2011, 800. Even Nozick acknowledges the prominence of injustice in the real world. No one thinks that current holdings of property are respectable by the historical standards that he articulates. The pedigrees of all our holdings are contaminated with the cruelest injustice, and when wealthy individuals are being required to support the meager lifestyle of people much less fortunate than them, it is quite unclear whether they are being required to do so out of resources that are morally theirs or out of ill-gotten resources that are "theirs" only in the shallowest of legal senses. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 61. Many critics suggest that Nozick ignores important aspects of market mechanisms and social cohesion. Ackerman argues that Nozick's basic rights, such as ownership of property, are absolute only in an ideal world, and not in the real world we inhabit. "Nozick's position is dialogically indefensible in a world deeply scarred by illegitimate domination." John Stick, (Prof., Law, U. of Southern California Law Center), NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 389. Several commentators have noted that most of the economic resources of the industrialized nations were at some time acquired by unjust acts. One could argue that for this reason Nozick's first two principles are rendered nugatory, and that the rectification principle is the only principle still of relevance to our society. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 105. Since the distribution of ownership is simply the accumulated distribution of income, private ownership of the means of production is the result of this coercive distribution of income—i.e., it is the result of injustice. 20

D. NOZICK HIMSELF ADMITTED THAT THE ACTUAL OPERATION OF THE FREE MARKET HAS BEEN MORE OFTEN UNJUST THAN JUST. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, Aug. 2011, 802. Robert Nozick's comments about injustice in the real world are particularly interesting. Nozick was never prepared to say that the historical-entitlement critique of equality and welfarism in Anarchy, State, and Utopia amounted to a defense of actually existing market institutions, nor would he pretend that the sort of Lockean defense of property he advocated could go any distance towards legitimizing contemporary disparities of wealth in, for example, the United States. On the contrary, he thought it undeniable that contemporary holdings would be condemned as unjust by any remotely plausible conception of historical entitlement. E. HISTORICAL PRINCIPLES OF JUST ACQUISITION ARE UNWORKABLE – WE COULD NEVER GO BACK TO CORRECT ALL PAST INJUSTICES. David Lyons, (Prof., Philosophy, U. of Missouri), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 355. Most Americans take this country's possession of its territory for granted, even though we all know that a great deal of its land was wrested by force or fraud from those who occupied it before the Europeans came—from Native Americans, who were dispossessed and either massacred or subjugated, the survivors displaced from their homelands and in large part consigned to live on shrinking reservations. John Stick, (Prof., Law, U. of Southern California Law Center), NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 390. Locke's Proviso is subject to a well-known problem: How can all of the property in an economy be appropriated justly under the Proviso if many people are left without property? As Nozick has noted, this infirmity in the acquisition of the last few bits of unappropriated property tends to "zip back" to infect every prior acquisition of property. If there exists a last bit of property which can be acquired, its acquisition by anyone makes all other would-be acquirers worse off. This problem threatens to make any acquisition of property unjust, thereby undermining the entire theory. Lawrence Davis, (Prof., Philosophy, U. of Missouri), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 351. We ought to note that, in both its original and its amended forms, the principle of rectification will probably not help us if we attempt a full-scale rectification of the injustices in our society's past, for were we to project the 200 years of our country's history in a rectified movie, the cast of characters would surely differ significantly from the existing cast. Had our ancestors lived and moved in a rectified version of our history, quite likely many of us would not be alive today. II. RAWLS’ DIFFERENCE PRINCIPLE PRESERVES CAPITALISM BY INFUSING IT WITH JUSTICE CONCERNS, LIMITING INEQUALITY. A. RAWLS ENDORSES FREE MARKET CAPITALISM WITHIN REASONABLE LIMITS. Allen Buchanen, (Prof., Philosophy, U. Minnesota), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 25. Rawls assumes, that is, that the Difference Principle can be satisfied simply by redistributing income and wealth through taxing the better off and transferring the proceeds to the worst off. He assumes, then, that the representative worst off man's prospects of wealth, power, authority, etc. can be maximized by boosting the wages earned on the free market with an income supplement. The idea, roughly, is that the market will do part of the job of satisfying the Difference Principle and that taxation and income transfers will do the rest. What is crucial to note here is that Rawls believes that his principles of justice could be satisfied in our society without the abolition of competitive markets and the adoption of socialism. He contends that justice could be attained without a transition to public ownership of the means of production. Arthur DiQuattro, (Prof., Philosophy, Reed College), POLITICAL THEORY, Feb. 1983, 69. Rawls recommends the use of markets because of the advantage of allocative efficiency and because he feels that comprehensive planning tends to interfere with equal liberties and fair equality of opportunity, that is, market devices decentralize economic power and enhance free choice of occupation. But there is another, more important reason for Rawls's insistence on markets. And he does insist: "The ideal scheme sketched . . . makes considerable use of market arrangements. It is only in this way, I believe, that the problem of distribution can be handled as a case of pure procedural justice." 21

B. CAPITALISM, IN ORDER TO SURVIVE, MUST ADDRESS REASONABLE JUSTICE DEMANDS. Stathis Banakas, (Prof., Law, U. East Anglia), LOUISIANA LAW REVIEW, Summer 2007, 1040. Whether capitalism is on the path to suicide or survival must still be an open question. If the former, it will be from self-inflicted wounds. Since there is no alternative to it in sight; since it has shown itself capable of adapting to society's values in the past, even if reluctantly and too slowly, it seems to me worth while for all of us to help bring it into line with the values of the 21st century, so enabling it to merit survival. C.M.A. McCauliff, (Prof., Law, Seton Hall U. School of Law), RUTGERS LAW REVIEW, Winter 2010, 396- 397. Society is not "a contract among individuals whose aspirations and identities exist independently" of society. That society would be stamped by the pride of the capitalist, characterized by "selfishness and a refusal to share because possessions are a badge of superiority." While the market allocates land, labor, and capital, it is not the sole criterion or standard for distributive justice: the tax code's income supplements, various entitlement programs, and a "fair and equal educational opportunity" combine to provide economic justice. C. PROGRESSIVE TAXATION DOES NOT DEPRIVE THE RICH OF SIGNIFICANT LIBERTIES. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 349. Tax rates are relatively predictable; they vary from year to year only within a narrow range. The rich in developed countries face no real risk of losing their entire fortunes (to the government, at any rate), and they know it. And one should also not ignore the extent to which welfare-state redistributive programs have provided additional security to the poor and the middle class. Samuel Scheffler, (Prof., Philosophy, U. California, Berkeley), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 166. There seems no reason to believe that such measures as highly progressive taxation and limitations on inheritance need deprive anybody of the liberty necessary to live a decent and fulfilling life. Though I think them justified, I recognize that these further restrictions on the good of liberty are unwelcome. This only teaches us what we must surely have already known: that in political theory as in life one can't always enjoy all good things together. All too often we must sacrifice one to save another. David Hasen, (Prof., Law, U. Michigan), TEXAS LAW REVIEW, Apr. 2007, 1105. In his abbreviated discussion of endowment taxation, Rawls observes: “The difference principle does not penalize the more able [through endowment taxation] for being fortunately endowed. Rather, it says that to benefit still further from that good fortune we must train and educate our endowments and put them to work in socially useful ways that contribute to the advantages of those who have less.” D. STATE REGULATION OF THE MARKETPLACE IS ESSENTIAL TO CORRECT FOR PAST INJUSTICE. Tom Beauchamp, (Prof., Philosophy, Georgetown U.), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 147. As we saw previously, notions such as productivity, contribution, and entitlement only gain their meaning from underlying social forces, such as market mechanisms. These mechanisms must be appropriately regulated before it can be decided whether a person's "contribution" or "entitlement" is duly or unduly appreciated. Only a theory of how justice can be embedded in the basic structure provides an answer, and this objective guides Rawls' entire theory. If he succeeds in showing that the basic structure determines just outcomes, then Nozick has neither an argument against Rawls nor an understanding of the primary objective of Rawls' work. E. RAWLS DEFENDS A FREE MARKET SYSTEM, SO LONG AS IT PROVIDES FOR THOSE WHO ARE UNABLE TO SUPPORT THEMSELVES. Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OF THE JUST SOCIETY, 1986, 58. In reality Rawls wants to offer a justification of societies not unlike the modern Western . There will be a 'free-enterprise' economy with private ownership of capital and natural resources. This will be regulated by the state, using mostly macro-economic techniques, in order to promote reasonably full employment and low inflation. For those who are unable to find work or are otherwise unable to support themselves, social security (financed by taxation) will ensure a decent income. In short Rawls is reasonably confident that our structural arrangements are just. 22

NEGATIVE CASE #1: NOZICK’S ENTITLEMENT THEORY BEST ENSURES LIBERTY The thesis of this case is that Nozick’s Entitlement Theory should be preferred over Rawls’ Difference Principle because Nozick better ensures the primacy of liberty. Rawls himself establishes a hierarchy of justice criteria with liberty at the top. He says that once equal liberty has been assured, then society should turn to matters of equal opportunity and welfare. This case will show that only Nozick’s Entitlement Theory adequately ensures the preservation of liberty. OBSERVATIONS: I. THE PRESERVATION OF LIBERTY IS THE MOST IMPORTANT CRITERION FOR JUSTICE. A. JOHN LOCK FAMOUSLY DECLARED THAT ALL PERSONS HAVE AN EQUAL RIGHT TO LIBERTY. Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICAL SCIENCE, Dec. 1992, 681. Locke suggested that originally, in a state of nature, the equal right to liberty would have given all the right privately to appropriate land and other resources from nature for their own use. This was so provided that the things appropriated were not allowed to spoil, and provided that there were still enough and as good natural resources left in common for others. However, over time persons' access to enough and as good would have disappeared. Some men would have legitimately come to own large quantities of land and other resources, leaving others in a position in which they would have to labour for owners to provide themselves with the necessaries and conveniences of life. This could have happened, Locke's framework suggests, without any violation of the equal liberty principle. B. THE RIGHT TO LIBERTY WAS ADOPTED AS A BEDROCK PRINCIPLE OF JUSTICE IN THE U.S. DECLARATION OF INDEPENDENCE. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM URBAN LAW JOURNAL, Spr. 1996, 629. The Declaration of Independence proclaims that we have an "unalienable" right to liberty. Although liberty has many meanings, the most common, traditional meaning in America is freedom from coercion. Liberty in this popular sense is a negative liberty because it means freedom from intentional restraints (or coercion) by others - exemplified by our constitutional rights to and assembly, and protection against warrantless searches. Negative liberty is inextricably connected to private property, the free market, and principles of economic efficiency. Because negative liberty requires that a person be able to use his body, and by extension that property over which he gains control, free from the constraints of others, it requires a system of private property which assigns complete (or almost complete) ownership to individuals. Without such individual ownership, a person's use and enjoyment of property would be contingent on another's will. Moreover, private property is the most efficient way of assuring the fullest development of the self - the goal of liberty - because the individual can best determine his own interests. C. EVEN JOHN RAWLS ACCEPTS THE PREMISE THAT THE RIGHT TO LIBERTY IS PRIOR TO ALL OTHER JUSTICE CONSIDERATIONS. John Rawls, (Prof., Philosophy, Harvard U.), A THEORY OF JUSTICE, 1971, 61. These principles [referring to his two “principles of justice”] are to be arranged in a serial order with the first principle prior to the second. This ordering means that a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages. Andrew Kernohan, (Prof., Philosophy, Dalhousie U., Halifax), CANADIAN JOURNAL OF PHILOSOPHY, Mar. 1990, 21. As is well known, Rawls defends two principles of justice. The first principle, the guarantee of equal basic liberties, takes precedence over the second, the difference principle. The claim about arises in the context of a defense of the second principle, and the onus on such a defense is not to contradict the lexically prior guarantee of basic liberties. 23

Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OF THE JUST SOCIETY, 1986, 57-58. [In Rawls’ Theory of Justice] the original principle becomes three, and again these are ranked in the following order of importance: (1) The principle of greatest equal liberty; (2) The principle of fair equality of opportunity; (3) The principle of difference. What these principles enjoin is given by replacing 'the relevant class of social primary goods' for 'all social primary goods' in the formulation given above. The important point here is the ranking of principles. Rawls assigns them a 'lexical order', which is the order given above, meaning that a prior principle is to be fully complied with before later ones are considered. What we have, then, is priority (absolute priority) ascribed to liberty over equality of opportunity and these in turn over welfare. Allen Buchanen, (Prof., Philosophy, U. Minnesota), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 12. Since the Second Principle of Justice contains two distinct principles —the Difference Principle and the Principle of Fair Equality of Opportunity—there are three principles of justice in all.' Having advanced these three principles, Rawls offers two priority rules for ordering these three principles. The need for priority rules arises because efforts to satisfy one principle of justice may conflict with efforts to satisfy another. The first priority rule states that the First Principle of Justice, the Principle of Greatest Equal Liberty, is lexically prior to the Second Principle as a whole, which includes both the Difference Principle and the Principle of Fair Equality of Opportunity. II. THE KEY DIFFERENCE BETWEEN RAWLS AND NOZICK CENTERS ON THE QUESTION OF WHETHER A JUST GOVERNMENT CAN USE TAXATION FOR THE PURPOSE OF INCOME REDISTRIBUTION. A. RAWLS’ DIFFERENCE PRINCIPLE HOLDS THAT TAXATION CAN JUSTLY BE USED TO REDISTRIBUTE INCOME. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM URBAN LAW JOURNAL, Spr. 1996, 625. Under Rawls' theory, the role of taxation is to maintain a just distribution of income in two respects. First, taxation has a non-revenue raising function: "gradually and continually to correct the distribution of wealth and to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity." Since unequal endanger both political liberty and equal opportunity, inheritance taxes are appropriate. Rawls notes that unequal inheritance of wealth is "no more inherently unjust than the unequal inheritance of intelligence." What is important for both is that any or either inequality meet his difference principle: the inequality is allowable if it helps the least well-off and does not encroach upon liberty and opportunity. Inherited wealth must be redistributed because inheritance restricts liberty by creating centers of power that devalue representative government and restrict opportunity by limiting access to equal education and cultural growth. B. NOZICK’S ENTITLEMENT THEORY HOLDS THAT TAXATION CAN NEVER JUSTLY BE USED TO REDISTRIBUTE INCOME. Pulin Nayak, (Prof., Economics, Delhi School of Economics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989, PE-1. Robert Nozick's Anarchy, State, and Utopia, which appeared in 1974, is today regarded as a reference point for all contemporary works on libertarian political philosophy. The central idea in the book is Nozick's espousal of what he calls the "minimal state", a notion long associated with the seventeenth century English philosopher John Locke. The minimal state, according to Nozick, "limited to the narrow functions of protection against force, theft, fraud, enforcement of contract and so on, is justified; that any more extensive state will violate persons' rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right." In particular, in Nozick's world, the state is forbidden to play a redistributive role. 24

CONTENTIONS: I. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IS A VIOLATION OF LIBERTY. A. LIBERTY DEMANDS THAT PEOPLE SHOULD HAVE A RIGHT TO THE PRODUCTS OF THEIR OWN LABOR AND TALENTS. Andrew Kernohan, (Prof., Philosophy, Dalhousie U., Halifax), CANADIAN JOURNAL OF PHILOSOPHY, Mar. 1990, 22. Freedom of the person would require, first off, a set of rights to protect a person's body from interference by other people and by the state. But no meaningful account of freedom of the person could stop here. Persons are more than just their bodies; persons do things with their bodies. A meaningful notion of personal freedom must also protect the capacities of persons to make use of themselves. In other words, it must also give some protection to their talents and abilities. At a minimum, a notion of freedom of the person would have to include: (1) The right of persons to remain in possession of their bodies, their body parts and their talents and abilities. (2) The right of persons to use their bodies and talents as they see fit, provided they do not interfere with the rights of others. (3) The right of persons to decide who else may utilize their bodies and talents, and how and under what conditions this may be done. These three rights by no means provide a complete articulation of the notion of personal freedom, but any such notion would include all three of these rights. Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAX POLICY, Fall 1995, 256-257. A truly fair system is one that preserves what an individual has, rather than takes it from him. Furthermore, the identification of a certain group within the community as not paying its fair share divides the community and belies the Rawlsian notion of the possibility of a social contract between reasonable, similarly motivated persons. It undermines Rawls' very concept of the primacy of the individual. It also "hollows out" the individual. If all his traits are not his, but belong to the collectivity, what is left of the individual, whose primary moral status was the motivation for the theory of justice in the first place? If the high income earners are to be singled out and made to pay, the question is why is it fair for some individuals in a society to pay at higher rates, or to pay more taxes? Certainly, we would not consider it fair, in the sense of just, to single out a racial, ethnic, or religious group, or a particular gender, for harsher treatment under our laws. We would not deny them liberties or benefits accorded others. To the extent they are being denied, we would support and even fight for their equal enjoyment of those rights. Why, then, ought we feel comfortable in depriving one individual of more of what he has earned than another individual? Why is it fair to criticize a class of society publicly for not doing their fair share when they have paid more than others? B. TAXATION FOR THE PURPOSE OF REDISTRIBUTION AMOUNTS TO FORCED LABOR. Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 65. Taxation of earnings from labor is on a par with forced labor. Some persons find this claim obviously true: taking the earnings of n hours labor is like taking n hours from the person; it is like forcing the person to work n hours for another's purpose. Others find the claim absurd. But even these, if they object to forced labor, would oppose forcing unemployed hippies to work for the benefit of the needy. And they also would object to forcing each person to work five extra hours each week for the benefit of the needy. But a system that takes five hours' wages in taxes does not seem to them like one that forces someone to work five hours, since it offers the forcee a wider range of choice in activities than does taxation in kind with the particular labor specified. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, 89. Putting the objection most strongly, the libertarian philosopher Robert Nozick famously wrote that redistributive taxation is "on a par with forced labor." For staunch libertarians, taking some of the fruits of your labor so someone else can eat is no different in principle than extracting one of your kidneys so someone else can live: each destroys self-ownership by appropriating your body for another's benefit. Rights to one's property and to are the legal instruments that reflect and protect the moral entitlements to keep, sell or donate the fruits of our own labor, as we wish. 25

C. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IMPAIRS MARKET FREEDOM. Alan Brown, (Ph.D., University College, London), MODERN POLITICAL PHILOSOPHY: THEORIES OF THE JUST SOCIETY, 1986, 93. The rejection of any state more powerful than the night-watchman variety is implicit in the rights Nozick ascribes to individuals. More particularly, it is a simple corollary of the acceptance of those rights as foundational to any politically relevant morality that any conception of justice which prescribes redistribution of wealth or proscribes certain activities (like the amassing of great personal wealth) must be rejected. For the state to employ such practices it must continuously violate people's rights; it must, for example, prohibit capitalist acts between consenting adults. D. TAXATION FOR THE PURPOSE OF REDISTRIBUTION IS REALLY JUST THEFT OF PROPERTY. Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAX POLICY, Fall 1995, 259-260. Suppose you are sitting in your home and a stranger breaks in and removes, under threat, valuable assets belonging to you or your family. The police come, return your property, and arrest the intruder. He argues at his trial that he was a member of the lower middle class, you were upper middle class, and he wanted to even things up. In addition to the destabilizing political implications of his defense, many persons would be deeply troubled by the unfairness of his being able to take what he had not earned from someone else who had earned it. If there are many such persons in the community and they band together to authorize democratically elected officials to take the same property, under color of law, this is described as high income earners paying their fair share. Some of us may be misled by this use of language and the intermediation of the state and its agents to believe that the fair thing has been done. The high income earner who does not wish to participate in this taking will have no recourse. By interposing the state, those who earn less can take away from those who have earned more. They can do this without regard to who contributed more of value to the society as a whole. In effect, the majority of the society, through democratic, majoritarian processes, approves a system where some are required to work more for the common good than others. E. TAXATION FOR THE PURPOSE OF REDISTRIBUTION VIOLATES RAWLS’ OWN STANDARD OF LIBERTY. Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 477-478. The difficulty into which Rawls' analysis has led him can be seen very well if we raise the question whether Rawls' own democratic equality can satisfy his "demand of justice." We can state his underlying principle as follows: inequalities in the distribution of goods which derive from "natural endowment or effort" chance) are not deserved and therefore not just. Rawls' principle of democratic equality while not directly rewarding these chance or arbitrary factors, nonetheless, preserves, rather than nullifies, inequalities based on these undeserved inequalities. It allows inequalities which benefit the least advantaged, that is, those inequalities which are productive of more goods and from which the least advantaged benefit by getting some share. Rawls ties the differential reward to the differential social contribution, but what is it after all which allows the more favored to make their greater contributions? Surely, it is the very natural endowment and effort which Rawls has thrown overboard as morally otiose prizes in the natural and social lottery. To reward the greater contribution is in fact to reward the undeserved bases of those contributions, and thus to violate the demand of justice. Democratic equality, therefore, does not qualify as a principle of justice. Michael Zukert, (Prof., Political Philosophy, Carleton College), POLITY, Spring 1981, 480. "Justice as fairness" then, whatever line of argument we follow, neither supplies us with justice nor with fairness. Although his theory is surely an elegant attempt to generate a normative account of justice without departing fundamentally from a skepticism about the good or about "values" in general, it is just as surely a failure as a theory of justice. Instead of engaging that problem, Rawls' demand of justice merely directs him down a side-road which leads away from it. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 432. Rawls' claim that an unequal distribution of economic goods is justified only if it is to the advantage of society's worst-off individuals conflicts with property rights and economic stressed by libertarians. The picture a libertarian draws of Rawlsian society is that of a society which constantly equalizes by taking from those who have earned what they have acquired through free contracts and exchanges, and gives this wealth to those who probably do not deserve it. 26

NEGATIVE CASE #2: NOZICK BEST PROVIDES FOR THE BLESSINGS OF CAPITALISM The thesis of this case is that the Entitlement Theory of Robert Nozick should be preferred over Rawls’ Difference Principle because Nozick better provides the philosophical underpinnings of capitalism and free markets. John Locke and other major philosophers have established the protection of property rights as a primary component of justice. The defense of free markets offers the best way to ensure prosperity for all economic layers in society. OBSERVATIONS: I. THE CRITERION FOR JUSTICE IS THE PROTECTION OF PROPERTY. A. JUSTICE DEMANDS THAT PEOPLE HAVE A RIGHT TO THEIR OWN LABOR. , (Former Prof., Economics, Brooklyn Polytechnic Institute), JUSTICE AND PROPERTY RIGHTS, Jan. 25, 2010. Retrieved Dec. 6, 2012 from http://mises.org/daily/4047. I can only outline what I consider to be the correct theory of justice in property rights. This theory has two fundamental premises: (1) the absolute property right of each individual in his own person, his own body; this may be called the right of self-ownership; and (2) the absolute right in material property of the person who first finds an unused material resource and then in some way occupies or transforms that resource by the use of his personal energy. This might be called the — the case in which someone, in the phrase of John Locke, has "mixed his labour" with an unused resource. B. SELF-OWNERSHIP IS A BEDROCK PRINCIPLE OF JUSTICE. John Locke, (English Philosopher), quoted in SOCIAL CONTRACT, 1948, p. 17. [E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. II. PROTECTION OF PROPERTY IS KEY TO THE OPERATION OF CAPITALISM. Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 66. Capitalism also requires people to be allowed to retain the resources they earn and create. If you exert yourself and invest for the long term, but someone else appropriates most of the profit, the odds are that you’ll give up. Protection of ownership lies at the very heart of a capitalist economy. Ownership means not only that people are entitled to the fruits of their labors, but also that they are free to use their resources without having to ask the authorities first. Capitalism allows people to explore the economic frontier for themselves. , (Staff), , June 1993. Retrieved Dec. 6, 2012 from http://www.fee.org/ the_freeman/detail/in-defense-of-property-rights-and-capitalism/. To understand the nature of , one must note first of all that it is logically dependent on the principle of the right to private property. One cannot trade if one does not own anything. Tibor Machan, (Staff), THE FREEMAN, June 1993. Retrieved Dec. 6, 2012 from http://www.fee.org/ the_freeman/detail/in-defense-of-property-rights-and-capitalism/. Freedom of trade presupposes property rights. If no such rights exist, then there is no need for or opportunity to trade. People could just take from others what they want and would not need to wait for agreement on terms. Or, alternatively, if everyone owned everything, no one could ever trade. Everyone’s permission would be required for every transaction. 27

CONTENTIONS: I. ROBERT NOZICK’S ENTITLEMENT THEORY PROVIDES THE PHILOSOPHICAL UNDERPINNING FOR CAPITALISM. A. NOZICK PRESERVES THE PROPERTY RIGHTS ESSENTIAL TO CAPITALISM. Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICAL SCIENCE, Dec. 1992, 677-678. For Nozick, this libertarian principle must operate as an overriding moral imperative which demands that people be treated as the final arbiters of their own desires/value-preferences/interests. It is on the basis of this principle that he holds that individuals have created for themselves private and exclusive entitlements to certain in land and other means of production. The dictates of liberty require that they be left free to dispose of these properties as they will, without regard for wider socio-economic concerns. As such, for Nozick, inviolable capitalist property rights are a necessary corollary of the free society. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 121. Nozick gives the most explicit support for a capitalist market exchange system based on the right of private property. Indeed, he indicates that he believes contemporary capitalist societies do not violate the principles of justice in exchange that he offers. Whatever distribution of goods occurs within an economy is just, so long as it is the consequence of proper market exchanges. There is no sense of any limits necessary to protect the poor. B. ENTITLEMENT THEORY PRESERVES THE CORE OF THE FREE MARKETPLACE. Pulin Nayak, (Prof., Economics, Delhi School of Economics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989, PE-2. At the heart of Nozick's blueprint for a full capitalist ownership of the means of production is his theory of entitlement. The two principal components of his theory of entitlement are (i) the theory of justice in acquisition, and (ii) the theory of justice in transfer. There is a third component, called the principle of rectification, which plays, conceptually, a rather minor role. Nozick spells out the following ground rules which form the operational basis for his notion of justice in holdings: (1) A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. (2) A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. (3) No one is entitled to a holding except by (repeated) applications of 1 and 2. Pulin Nayak, (Prof., Economics, Delhi School of Economics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989, PE-1. Crucial to Nozick's principle of justice in transfer is the presumption that if individuals, with their endowments, have engaged in voluntary trade then the resulting distributions must be fair if the original distribution was fair. Nozick, for example, has observed: “An entitlement theorist would find acceptable whatever distribution resulted from the party's voluntary exchanges." II. RAWLS’ DIFFERENCE PRINCIPLE UNDERMINES CAPITALISM. A. THE DIFFERENCE PRINCIPLE INTERFERES WITH FREE MARKET EXCHANGES. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 57. This approach to justice puts individual liberty and choice in a primary position over any claims for equality of holdings. Indeed, one of Nozick's strongest criticisms of "patterned principles" such as Rawls' difference principle is that they inevitably involve violations of freedom of choice. Since they force arrangements that redistribute the goods that people have chosen to give or exchange, they violate the fundamental Kantian principle of respect for people's autonomy of choice. B. RAWLS’ VEIL OF IGNORANCE UNDERMINES ANY CONCEPT OF PROPERTY OWNERSHIP. Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, Autumn 1973, 95. For people meeting together behind a veil of ignorance to decide who gets what, knowing nothing about any special entitlements people may have, will treat anything to be distributed as manna from heaven." 28

C. RAWLS’ MAXIMIN PRINCIPLE IS THE ANTITHESIS OF FREE MARKET ENTREPRENEURSHIP. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 456. Adoption of the maximin strategy by Rawls' contractors out of self-interest appears only contemptible, abnormally cautious and lacking in spirit. To quote one critic on this point: Rawlsian man in the original position is finally a strikingly lugubrious creature: unwilling to enter a situation that promises success because it also promises failure, unwilling to risk winning because he feels doomed to losing, ready for the worst because he cannot imagine the best, content with security and the knowledge he will be no worse off than anyone else because he dares not risk freedom and the possibility that he will be better off—all under the guise of `rationality.' Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 455. For the libertarian, who values freedom above all else and generally takes an optimistic view of the prospects for those willing to take reasonable risks in the face of uncertainty, Rawls' contractors will appear obsessed with security and extremely pessimistic in acting as if their futures were to be determined by their enemies. Given full knowledge of the risks involved, one who is willing to take such risks for the chance of better life prospects cannot be condemned as irrational. Indeed we generally condemn those who fail to seize opportunities to better themselves for fear of the risks involved. And yet Rawls makes the adoption of a maximin strategy in the face of uncertainty of the original position part of the definition of rationality itself. D. RAWLS’ THEORY OF REDISTRIBUTIVE JUSTICE UNDERMINES THE MOST PRODUCTIVE MEMBERS OF SOCIETY. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 437. There is foremost the problem of desert: we naturally feel that those who make greater efforts in a socially productive way deserve to receive a greater share of the social product to which they contribute. And this seems a basic, if not the basic distributive consideration. Rawls it seems has conflated the concept of distributive justice at the base level into that of equality alone. As one critic points out, Rawls' principle appears more egalitarian than even Marx's (as summarized in the slogan: "From each according to his ability; to each according to his need.") While Marx recognized differences arising from need, and required each to contribute to the social product up to the maximum of his ability, Rawls refuses to accord a central place in his theory to differential needs and is willing to maximize benefits to the worst off, likely to be the least productive, without demanding maximal effort or contribution relative to ability from them. III. CAPITALISM IS AN ECONOMIC THEORY THAT HAS GIVEN FREEDOM AND MATERIAL PROSPERITY TO HUNDREDS OF MILLIONS OF PEOPLE AROUND THE GLOBE. A. CAPITALISM BENEFITS ALL MEMBERS OF SOCIETY. Christopher John Nock, (Prof., Philosophy, McMaster U.), CANADIAN JOURNAL OF POLITICAL SCIENCE, Dec. 1992, 686. For Nozick, the market system, prompted by large and unequal ownership, has provided large increases in material well-being to the benefit of all in capitalist society. No one is worse off than they would be if Locke's proviso still held. Thus, capitalist property rights do not violate the intent behind this proviso. Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 64. What makes the difference is whether the environment permits and encourages ideas and work, or instead puts obstacles in their way. That depends on whether people are free to explore their way ahead, to won property, to invest for the long term, to conclude private agreements, and to trade with others. In short, it depends on whether or not the countries have capitalism. In the affluent world we have had capitalism in one form or another for a couple of centuries. That is how the coutnries of the West became the affluent world. Capitalism has given people both the liberty and the incentive to create, produce, and trade, thereby generating prosperity. B. CAPITALISM BEST ENSURES LIBERTY. Johan Norberg, (Swedish Journalist), IN DEFENSE OF GLOBAL CAPITALISM, 2002, 65. Capitalism means that no one is subject to arbitrary coercion by others. Because we have the option of simply refraining from signing a contract or doing a business deal if we prefer some other solution, the only way of getting rich in a free market is by giving people something they want, something they will pay for of their own free will. Both parties to a free exchange have to feel that they benefit from it; otherwise, there won’t be any deal. 29

NEGATIVE CASE #3: JUSTICE MEANS GIVING PEOPLE WHAT THEY ARE DUE The thesis of this case is that Robert Nozick’s Entitlement Theory is superior to Rawls’ Difference Principle because it promises to give to people what they are due. The most widely accepted definition of “justice” calls for “just deserts” – meaning that people should be given what they deserve. Nozick argues that people are entitled to the products of their own labor and creative talents. A proper understanding of justice would not require that property be taken from its rightful owner and be given to someone else. Rawls’ Difference Principle improperly treats an individual’s property as if it were “manna from heaven,” to be redistributed at the whims of the state. OBSERVATIONS: I. THE CRITERION FOR JUSTICE IS “JUST DESERTS” – PEOPLE SHOULD BE GIVEN WHAT THEY ARE DUE. A. “JUSTICE,” BY DEFINITION, MEANS TO GIVE PEOPLE WHAT THEY ARE DUE. BLACK’S LAW DICTIONARY, 2ND EDITION, 2009. Retrieved Dec. 5, 2012 from http://thelawdictionary. org/justice-n/. Justice: The constant and perpetual disposition to render every man his due. B. MOST MORAL PHILOSOPHERS SET “JUST DESERTS” AS THE CRITERION FOR JUSTICE. Tom Beauchamp, (Prof., Philosophy, Georgetown U.), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 133. Perhaps the single word most closely linked to the general meaning of "justice" in recent moral philosophy is "desert." According to many writings on justice, one has acted justly towards a person when that person has been given what he is due or owed, and therefore has been given what he deserves or can legitimately claim.' If a person deserves to be awarded a law degree, for example, justice has been done when that person receives the degree. What persons deserve or can legitimately claim is said to be based on certain morally relevant properties they possess, such as being productive or being in need. It is said to be wrong, as a matter of justice, to burden or to reward someone if the person does not possess the relevant property. Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 752. Most writers have agreed with the platonic conception that justice is giving a person his due. There is far less agreement about what is due a person and how it is determined, but it is understood that the idea of desert is somehow central. So far as justice is concerned, a person is due no less and no more than he deserves. Thus, one path toward an understanding of justice is to inquire about desert, and, if desert is not treated simply as a synonym for justice, it furnishes a test of results reached in other ways. Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 787. The complete idea of justice, in which both entitlement and desert are present, is thus the analogue of natural moral order. We saw in section III above that the idea of desert supposes a background for one's actions that is orderly not only causally but morally as well; a person's individual situation must be roughly as he deserves. That is no less true in the portion of our experience determined not by causal laws of nature but by the (and other rules) of the community. II. PEOPLE SHOULD NEVER BE USED MERELY AS A MEANS TO AN END. Joseph Grcic, (Prof., Philosophy, Indiana State U.), EQUALITY AND LIBERTY: ANALYZING RAWLS AND NOZICK, 1991, 12. To clarify the meaning of the categorical imperative, Kant offers an additional formulation of it. In this alternative form, it reads: 'Act so that you treat humanity, whether in your person or in that of another, always as an end and never as a means only. This version is based on the understanding of a moral rule as binding only rational beings, and to be consistent, a rational being must always treat every other rational being the same way he treats himself. It is Kant's conviction that each rational being recognizes himself as having an absolute worth or 'dignity' as an end, not merely a means for which he can be used. Hence, no principle of conduct can be universally prescriptive on all persons as rational beings which treats others merely as means. 30

CONTENTIONS: I. NOZICK’S ENTITLEMENT THEORY BEST MEETS THE “JUST DESERTS” STANDARD. A. ENTITLEMENT, IN NOZICK’S THEORY, GIVES PEOPLE WHAT THEY DESERVE. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 56. In contrast to such patterned principles, says Nozick, "historical principles of justice hold that past circumstances or actions of people can create differential entitlements or differential deserts to things. Hence, his is an "entitlement" theory. Justice is determined not by the pattern of the final outcome of distribution, but by whether "entitlements" are honored. Lloyd Weinreb, (Prof., Law, Harvard U.), U. OF CHICAGO LAW REVIEW, Summer 1984, 782. We are now able to see how entitlement and desert are united in the complete idea of justice. If an entitlement is also deserved, the claim of justice is at its strongest and ordinary usage allows us to employ the two terms interchangeably, according to which aspect of the claim we want to emphasize. B. NOZICK AFFIRMS THAT PEOPLE HAVE A RIGHT TO REAP THE REWARDS OF THEIR HARD WORK AND TALENT. Teneille Brown, (Prof., Law, U. of Utah), THE JOHN MARSHALL LAW SCHOOL REVIEW OF LAW, 2010, 716. According to Nozick's theory of justice, we ought not penalize someone who earned a sizable income based upon her market forces and talent. In his writing, he employs the example of basketball star Wilt Chamberlain, asking whether it would be just to take away Wilt's ridiculously large NBA income and redistribute it to those less well off. While it might seem unfair to pay Wilt $ 1M for playing ball while others starve, Nozick reminds us that Wilt has a talent that was compensated for by a competitive market. Instead of redistributing goods based on who could benefit the most on the margin, Nozick argues that justice should affirm individual rights to property. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW REVIEW, Fall 1995, 783. Patterned distributions are unjust in Nozick's view because they do not give people the right to choose what to do with their holdings. Thus, in addition to a "state of nature" rule that says I am entitled to whatever I get my hands on, the theory of entitlement rests on a notion of private property rights that includes the right to do whatever I want with my holdings. One thing I might want to do with my holdings is give them away. Perhaps I wish to give a small portion of my holdings to Yo Yo Ma to hear him play his cello. Perhaps a large number of people do the same thing and, as a result, Yo Yo Ma becomes wealthy. If we say that the Maestro is not entitled to all of the wealth he might accumulate, we must recognize that we are limiting the freedom of others to give it to him. We are not recognizing their rights to do as they wish with their holdings. II. RAWLS’ DIFFERENCE PRINCIPLE FAILS TO MEET THE “JUST DESERTS” STANDARD. A. THE VEIL OF IGNORANCE CONSCIOUSLY IGNORES “JUST DESERTS” – IT INSISTS THAT RESOURCES BE DIVIDED WITHOUT KNOWING WHOSE HARD WORK PRODUCED THOSE RESOURCES. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 448. Can we expect the best choice of rules which govern our lives to be made in a condition of ignorance? As we will see, this forces the contractors not only to be fair, but paranoid as well. In total ignorance, one might pessimistically guard against the worst possibilities as Rawls argues. But why should such a psychology guide the choice of rules of justice? Even if we do conceive of rules of justice as those chosen according to an artificial model of fairness, Rawls' general model of the original position seems no more intuitively compelling than other possible models for impartiality and fairness. 31

Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYU JOURNAL OF LAW & LIBERTY, 2005, 943. In Rawls's early formulations of his "second principle" he is careful to stress that departures from the kind of equality that his first principle is supposed to provide for must be to everyone's advantage. And the "everyone" referred to there must be every real person--not everyone who happens to have absolutely no idea who he (or she) is, what his (or her) talents are, or anything else of the kind that enables real people to make decisions in the world they live in. This much must be obvious. Since it is, however, Nozick's point now takes on devastating force. How, we must ask, is it "to the advantage" of the clever, the talented, the energetic, and so on, to be saddled with the burden of seeing to it that the "worst off" people in society are "as well off as possible"? B. RAWLS REWARDS THOSE WHO DO NOT WORK HARD. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 434. One striking feature of the Difference Principle to which some on the right have objected is its neglect of the notion of desert (as a result of effort or productivity). The concept of desert is in fact absent throughout the ground level of Rawls' theory, although it may seem to some readers the central notion behind our intuitions regarding distributions.' Is it fair for one person to have more than another just because he was lucky enough to have been born with more intelligence and ambition? Rawls seems to say no. But, libertarians ask whether it is fair to take something away from a person who has worked hard for it and give it to someone who couldn't or wouldn't produce it himself? Obviously not, according to the libertarian. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 440. Let us take first a simple two-person case. Person A works hard and is smart, while person B is dumb and likes to sleep a lot. Should things be arranged so that B gets the maximum benefit from any joint project up to the point of equality, or the point at which A gives up working in disgust at seeing the difference between his work and its reward? Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAX POLICY, Fall 1995, 261. Suppose one individual works overtime and does work of such quality that he typically receives bonuses as well. Another individual employed in the same job works only the prescribed number of hours and does so at the minimum tolerable level of quality. From a traditional liberal standpoint, there seems no principle of fairness that would justify punishing the competent, hard-working contributor to the community by imposing a lesser burden on the slothful, sloppy employee. Yet that is precisely what is done by differentiated rates of taxation. Jeffrey Schoenblum, (Prof., Law, Vanderbilt U. School of Law), THE AMERICAN JOURNAL OF TAX POLICY, Fall 1995, 256. Rawls' theory of justice, despite the inventiveness of his original position, is simply a restatement of the prevalent modern, neoliberal view of the ideal democratic society. It elevates the bureaucratic state and its dependent constituents over the interests of self-sustaining individuals. It detaches an individual from responsibility for his own success and failure. It refuses to seek at least a partial explanation for the failures of certain persons in their own shortcomings. It presumes that certain enlightened persons can resolve inherent differences in persons so that, ideally, we all plug along at about the same income- earning level. III. RAWLS’ DIFFERENCE PRINCIPLE USES PEOPLE MERELY AS A MEANS TO AN END. A. RESOURCES ARE NOT “MANNA FROM HEAVEN” – RAWLS TAKES WHAT BELONGS TO ONE PERSON TO BENEFIT ANOTHER. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 46. Just as appears to permit the sacrifice of some for the sake of others, so does the difference principle: those at the top may receive benefits only if those at the bottom do so as well. Nozick's criticism is the most biting here. First, he argues that goods are not "manna from heaven" but products of a productive process. Nozick argues that precisely because the "utility surplus" that can be created through special incentives involves additional effort on the part of some, they are entitled to part of that utility surplus. The surplus cannot simply be distributed as though no one deserved any part of it. The difference principle, which looks only at relative levels of income rather than at contribution to the productive process, appears to ignore these important questions. 32

B. RAWLS VIOLATES HIS OWN JUSTICE STANDARD BY TAKING FROM SOME PERSONS IN ORDER TO “PROVIDE A NET BALANCE OF SATISFACTION FOR ALL.” Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYU JOURNAL OF LAW & LIBERTY, 2005, 933. That justice should be better for all is not just some sort of noble but unattainable ideal. It is a practical idea which animates our ordinary dealings with each other all the time. This is well recognized by Rawls himself when he says, for example, that "[i]t may be expedient but it is not just that some should have less in order that others may prosper" and that "no one has reason to acquiesce in an enduring loss for himself in order to bring about a greater net balance of satisfaction [for all]." I don't know whether Rawlsians have noticed this, but 40% of my income for my entire working life looks quite a lot like an "enduring loss." And you have to misread the first quote in a way that biases the idea toward the worse-off if you think that what is wrong is only that those with not very much should be required to contribute to the wealth of those with a lot more. An unbiased, impartial principle, by contrast, would simply say that no one may be compelled to have less in order that anyone else should have more (as compared with what he otherwise would have had). In short, the Rawlsian paradigm, as we may now call it, is an impossible mess on the face of it and flatly inconsistent with its own premises. C. RAWLS VIOLATES KANT’S CATEGORICAL IMPERATIVE BY TREATING PEOPLE AS MERELY A MEANS TO AN END. C. Edwin Baker, (Prof., Law, U. of Pennsylvania), UNIVERSITY OF PENNSYLVANIA LAW REVIEW, Apr. 1985, 896. In the first critique, Sandel argues that the theory of the person to which Rawls is committed is inconsistent with Rawls' difference principle. The difference principle requires that basic societal institutions maximize the position of the worst off. Sandel claims that if the moral subject is an individual, then the difference principle will involve the conscription of some people's talents in order to benefit the worst off; the difference principle thereby treats those subjects as means. Only a group or community subject could both choose the difference principle and, since each person's talents would belong to this larger subject, avoid treating the moral subject as a means. Thus, the Rawlsian theory of the moral subject as an individuated person is inadequate to support his theory of the right. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 46. Second, Nozick proposes that we imagine the best-off saying to the worst-off, "Look, you gain from this cooperative venture; therefore, we will participate only if we get as much as possible." If these terms seem "outrageous," suggests Nozick, then surely the difference principle is also outrageous, for this is exactly what it requires, in reverse. In short, the difference principle appears to violate a Kantian and to use some people as means to others' ends. The fact that it uses those better off to help those worse off does not make it any more "just" than a utilitarian scheme that uses the worse-off to benefit the better-off. D. NOZICK INSISTS THAT PEOPLE NOT BE TREATED MERELY AS A MEANS TO AN END. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 51. Nozick takes a Kantian view that "individuals are ends and not merely means." Individuals are ends in themselves, possessed of certain "natural' rights. This means that there are constraints ("side constraints") on action: no actions are permitted that violate fundamental human rights. Thus, for Nozick, a limited set of near absolute rights constitutes the foundation of morality. 33

Index to Evidence & Evidence 4. John Stick, (Prof., Law, U. of Southern California Law Center), NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 384. After I. Rawls’ Difference Principle should be preferred over Nozick’s all, different societies will place different values on different talents, Entitlement Theory. skills, and characteristics. Neither Bruce Springsteen nor Magic Johnson A. Rawls supports equality of opportunity. (1-3) would have been so wealthy if he had been born in seventeenth-century B. Wealthy individuals owe their success to others as well as Japan. Magic Johnson may partially deserve his ability to play basketball, given his efforts to acquire the skill. But he did not at all themselves. (4-5) deserve to be born into a country where basketball is a popular sport, C. The Veil of Ignorance is a proper device for selecting justice nor to be born in a country where the private broadcasting system standards. (6-8) greatly enhances the monetary value of his talents. (In a society with D. Nozick’s theory pays too little attention to equality of public, non-advertiser-financed broadcasting, such as Great Britain a opportunity. (9-10) generation ago, Magic Johnson's income would have been quite a bit E. Nozick seeks a minimal, “night watchman” state. (11-12) lower.) He might now be entitled to the fruits of his labors, but that is all. F. Nozick over-estimates the importance of property. (13-17) 5. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., G. Rawls is not opposed to capitalism. (18-19) Harvard U.), SIX THEORIES OF JUSTICE, 1986, 63. Individuals do not H. Property rights should not be absolute. (20-30) simply create and exchange goods. "All property is acquired under I. Nozick cannot reasonably assume that property acquisition in the conditions which the acquirer has not himself created." Nozick ignores past is just. (31-38) the extent to which all transactions are protected and promoted by the community—and hence, the extent to which the community has a "partial right to private property which it claims, for instance, in the form II. Nozick’s Entitlement Theory should be preferred over Rawls’ of taxes." Taxes are not "forced labor" but rather a recognition of the Difference Principle. community's contribution to and proper share of the earnings of the A. Taxation amounts to forced labor. (39-40) individual. In sum, these critics claim that Nozick's proposal for just B. Just acquisition is the most important principle of justice. (41-44) holdings arising from freedom of choice is not realistic. Nozick ignores C. Nozick supports capitalism. (45-48) some of the complexities of modern society that make his simple norms D. The Maximin Principle should not be the guide to justice. (49- of commutative exchange inadequate. 50) 6. James Aune, (Prof., Speech Communication, Texas A&M U.), E. The Veil of Ignorance is not a sound basis for selecting justice SELLING THE FREE MARKET, 2001, 91. In Rawls's A Theory of principles. (51-53) Justice (1971), he asks the reader to imagine that a "veil of ignorance" has descended upon people who have to make a decision about the Evidence political ordering of their society. They must decide how goods and rights will be distributed, but they know nothing about their own 1. Anupam Chandler, (Prof., Law, U. California at Davis School of Law), endowments (intellectual or property) beforehand. Rawls contends that U.C. DAVIS LAW REVIEW, Mar. 2007, 567-568. Where Nozick's a reasonable person would arrange a society in such a way as to ensure foremost value is liberty, which he sees as freedom from the state, that the least-well-off person is benefited, so long as everyone else is Rawls's theory seeks to structure a more egalitarian society, requiring not made worse off. more direct state involvement. Political institutions must always seek to improve the lot of the worst off in society; their success or failure hangs 7. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, on how well they achieve this goal. This is Rawls's central disagreement Aug. 2011, 792. Rawls's theory is a good paradigm to work with, and it with Nozick, who would have political institutions protect private property has contributed to the study of justice a number of ideas that have more and free contract, with minimal redistribution. general application. One of them is the contractarian idea of the original position: the idea that it might be fruitful to approach questions of justice 2. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN by imagining people making decisions about important structural RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 173. For Rawls, then, aspects of their society or about important political and legal principles equality comes first. Goods are to be distributed equally unless it can be that they were to be committed to from behind a veil of ignorance, in shown that an unequal distribution is to the advantage of the least which they prescinded from all knowledge of their own particulars that advantaged. Furthermore, redress for the disadvantaged has a prior might give them an idea of how such arrangements would impact on claim on the social conscience and on social policy over any their own well-being. So, for example, people might be required to considerations of efficiency or progress. That too is entailed in justice as imagine considering arrangements about racial discrimination without fairness. knowing what race they belonged to or arrangements about the state's 3. John Schaar, (Prof., Philosophy, U. California, Santa Cruz), JOHN relation to religion without knowing what religion they belonged to. RAWLS' THEORY OF SOCIAL JUSTICE, 1980, 172. Justice as fairness 8. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, sets the claim for equality above all other claims save that of liberty; Aug. 2011, 796. Rawls's own view is that any individual behind the veil and, as we have seen "equal liberty," while formally prior to the of ignorance choosing principles to govern the basic structure of society difference principle, in the end requires for its implementation a far in which the individual was to live would insist on a principle that greater measure of social and economic equality than is presently the ensured social and economic inequalities were regulated to the case. Rawls does not discuss liberty and equality within the familiar advantage, in the first instance, of the least well-off group. This is the liberal framework which promptly sets them against each other as Rawlsian Difference principle. (As we have seen, that principle is not clashing and nearly incompatible principles. He sees the two as mutually itself supposed to determine what anyone is entitled to, but it would not enabling, and he stands as far as possible from the view which sees the be surprising if it commanded the institution of something like a modern moral life as, to use Weber's expression, the battlefield of "warring system of tax and transfer.) gods." Moreover, he is utterly unwilling to see equality as just one among many values, none of which has priority over the others. 9. Robert Nozick, (Prof., Philosophy, Harvard U.), ANARCHY, STATE, AND UTOPIA, 1974, 233. The entitlement conception of justice in holdings makes no presumption in favor of equality, or any other overall end state or patterning. It cannot merely be assumed that equality must be built into any theory of justice. There is a surprising dearth of arguments for equality capable of coming to grips with the considerations that underlie a nonglobal and nonpatterned conception of justice in holdings. 34

10. Robert Nozick, (Prof., Philosophy, Harvard U.), ANARCHY, STATE, 16. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIAL AND UTOPIA, 1974, 235. Equality of opportunity has seemed to many RESEARCH, Spr. 1976, 183-184. Even if one would agree with Nozick writers to be the minimal egalitarian goal, questionable (if at all) only for that government should stay out of the business of redistribution, there being too weak. (Many writers also have seen how the existence of the is no reason to suppose that the issues of distribution itself need be family prevents fully achieving this goal.) There are two ways to attempt arranged in the way he suggests. If economic arrangements were to provide such equality: by directly worsening the situations of those developed independently of law and governmental enforcement, they more favored with opportunity, or by improving the situation of those might reflect entirely different conceptions of economic rights than those less well-favored. The latter requires the use of resources, and so it too Nozick propounds. Nozick's metaphors for property are all land and involves worsening the situation of some: those from whom holdings are physical-object metaphors: he speaks of a "1/4 acre," a "property- taken in order to improve the situation of others. But holdings to which volume," etc. But these are hardly adequate to conceive of the rights of these people are entitled may not be seized, even to provide equality of conglomerate enterprises or of persons in regard to them in developed opportunity for others. In the absence of magic wands, the remaining capitalist economies. As C. B. Macpherson writes, in the twentieth means toward equality of opportunity is convincing persons each to century "property is again being seen," as it was in precapitalist choose to devote some of their holdings to achieving it. conceptions, "as a right to a revenue or an income, rather than as rights in specific material things." The property of investors is not so much 11. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), ownership of a part of the corporation's physical plant as it is a "right to a STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 185. revenue from the ability of the corporation to maneuver profitably. . ." Nozick's book is a forceful statement of the theory of the 'night- And we are now surrounded by new forms of property, such as rights to watchman' State. Nozick argues that the State should limit its functions old-age pensions, unemployment insurance, welfare benefits, and to 'protecting its citizens against violence, theft and fraud and to the jobs—rights "to access to the means of labour"—all distinct from earlier enforcement of contracts and so on'. He does not specify what 'and so capitalist property rights to exclude others from one's use of material on' might cover. things. 12. Pulin Nayak, ( Prof., Economics, Delhi School of 17. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIAL ), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989, Economics RESEARCH, Spr. 1976, 187. Or again, imagine the following: A family is PE-1. Why is the state, even a minimal one, needed at all? Surely there starving; the mother happens by chance to discover some fruit trees are some individual rights and liberties that are delimited by even the growing wild on . She picks the fruit, which then is hers. narrowest conception of the state? Why, in other words, does Nozick not She sells it and keeps the proceeds. Her husband and children die of advocate anarchy, a stateless world, if he is really concerned with hunger but she has enough money to go into the fruit-growing business maximising the domain of individual rights? The answer lies in the fact and to build a monument to her cat. Nozick's requirements for justice that any social state characterised by scarcity of resources, as all real- have been met. world situations are, coupled with unlimited wants by its members would necessarily end up with conflicts arising among individuals or groups. 18. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 121. Although the 13. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., utilitarians, Rawls, and Nozick hold very different basic theories of Harvard U.), SIX THEORIES OF JUSTICE, 1986, 56. Private ownership justice, in practice they all support forms of capitalist "free market" is the key assumption here. One of the few "positive" rights that Nozick exchange and private property. permits as a fundamental human right is the right to acquire and transfer property. 19. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 120. Rawls, too, 14. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., appears to defend . Although he argues that his Harvard U.), SIX THEORIES OF JUSTICE, 1986, 60. Moreover, principles of justice are compatible with both capitalist and socialist property rights entail limitations on freedom. Liberals, suggest Cohen, economic systems, basic acceptance of capitalism is assured. So long "see the freedom which is intrinsic to capitalism, but they do not notice as the least advantaged are thought to "benefit" from the market system, the unfreedom which necessarily accompanies it."" There are two no injustice has been done. On what is dubbed the "trickle down" theory, "freedoms" which might be associated with property: the freedom to own benefits to those at the top in a capitalist economy are always thought to it, and the freedom to use it. "Freedom to buy and sell belongs to "trickle down" to some benefits for those at the bottom. By Rawls' capitalism's inmost nature. Other freedoms do not. . . ." Thus, argues theory, this makes capitalism basically a just economy. Cohen, my freedom to own property is always accompanied by limitations on others' freedom to use that property. Hence, private 20. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READING property distributes freedom and unfreedom." My "positive." right to own NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 327- property, therefore, is bought only at the price of interference with 328. Traditionally critics of the more-than-minimal (welfare) state have others' freedom to use it. charged that "meddling" by the government to bring about or maintain a fairer distribution of resources involves tampering with the rights of 15. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIAL private property. At a time when rights of private ownership were RESEARCH, Spr. 1976, 182. Robert Nozick, like Robert Filmer, always accorded a supreme value, this was regarded as a pretty good omits from consideration the person who does the ordinary work of argument against distributive programs—but the days when private production. For Nozick, the product belongs to the entrepreneur who property rights were held sacrosanct are past. An argument which bought the materials and bought the labor, and he has an unlimited right pegged everything on a prior commitment to the rights of private to do whatever he pleases with it. To Robert Filmer, if a child issues property would, on its own merits, not (I think) be very telling. Certainly from a man's sperm, he has absolute rights over it, and to Robert such an argument would not accomplish what Nozick feels his argument Nozick, if a product issues from a man's capital, he has absolute rights does—the demonstration that all other conceptions of justice must be over it. But why should anyone accept such a view? As Locke keeps rejected in favor of the entitlement theory. saying with such irony of tone, does Sir Robert's merely saying so give us any reason to accept it? There are alternative views of property 21. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READING rights. Professor A. M. Honore of Oxford has said of Nozick's discussion NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 331. that "it rests on the morally questionable view that a person is entitled to Where my rights in something I have come to hold do not include the keep exclusively and indefinitely for himself whatever he makes or right to sell or exchange it, then preventing me from doing so hardly produces." For Nozick, all goods come into the world "already attached constitutes a restriction of my liberty. If a book belonging to one of my to people having entitlements over them . . . things colleagues inadvertently falls into my hands, I am not "free" to sell it (or give it away) to one of my students, but this lack of freedom does not amount to a restriction of my liberty since I have not the right to sell it; similarly, if the university I work for provides me with a car for a trip required by my professional duties, it is not a restriction of my personal liberty that I cannot immediately sell it to the nearest car dealer (though I do have rights to, say, the use of the car. 35

22. Cheyney Ryan, (Prof., Philosophy, U. of Oregon), READING 27. Thomas Nagel, (Prof., Philosophy, New York U.), READING NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 339. NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 196. Now previously we have seen Nozick invoke personal liberty as the The fact is, however, that Nozick's moral intuitions seem wrong even on decisive ground for rejecting patterned principles of justice and a small scale. He denies that any of the rights he detects may be restrictions on the ownership of capital (arguments here that such overridden merely to do good or prevent evil. But even if it is not policies may maximize general well-being he considers irrelevant). But permissible to murder or maim an innocent person to promote some where the rights of private property admittedly restrict the liberties of the highly desirable result, the protected rights do not all have the same average person, he seems perfectly willing to trade off such liberties degree of importance. The things one is supposed to be protected against material gain for the society as a whole. Why is liberty accorded against are, in order of gravity; killing, injury, pain, physical force, a primary importance in one case and not in the other? Why should the deprivation of liberty of many different kinds (movement, association, freedom to dispose of one's property be of such great concern, while the and activity), destruction of one's property, taking of one's property; or freedom to use, walk on, look at common property can be dispensed the threat of any of the above (with all their variations in gravity). It is far with in the interest of the general welfare? less plausible to maintain that taking some of an innocent man's property is an impermissible means for the prevention of a serious evil, 23. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF than it is to maintain that killing him is impermissible. These rights vary PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, in importance and some are not absolute even in the state of nature. 89. The libertarian objection to redistribution is not self-evident and suffers from two weaknesses. It (1) overstates the liberties that respect 28. Thomas Nagel, (Prof., Philosophy, New York U.), READING for autonomy demands, and (2) shortchanges distributive justice NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 197. It because its vision of justice is almost exclusively procedural. is not clear how Nozick thinks individual rights derive from the fact that each person's life is the only one he has. He appears to draw the 24. Eric Blumenson, (J.D. Candidate), UNIVERSITY OF implication that a benefit to one or more persons can never outweigh a PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE, 2011, cost borne by someone else. This, however, is far too broad a claim for 90. We can fully subscribe to the libertarian thesis of individual Nozick's purposes. It is both obviously false and unsuitable as a basis sovereignty - and should, because each person indeed does have for constraints on the treatment of individuals. certain fundamental interests that must be immune from state interference and under his exclusive control - but that does not commit 29. Thomas Nagel, (Prof., Philosophy, New York U.), READING us to the view that these fundamental interests include total ownership NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 199. and control over every object one has acquired or produced. Each of us There is no reason to think that either in personal life or in society the has a realm of sovereignty over our life, mind and body that is virtually force of every right will be absolute or nearly absolute, i.e., never absolute, a moral right that prohibits the state from deciding how long capable of being overridden by consequential considerations. Rights not we may live, what we may read, and whether one of our kidneys should to be deliberately killed, injured, tormented, or imprisoned are very be confiscated to save another's life. But it is also obvious that this powerful and limit the pursuit of any goal. More limited restrictions of individual sovereignty does not afford us a moral right to do anything we liberty of action, restrictions on the use of property, restrictions on want; it doesn't license me to go through a red light, pollute a river that contracts, are simply less serious and > therefore provide less powerful flows through my land, deny shelter to someone in emergency constraints. conditions or fail to feed my child. The point of these examples is that 30. Thomas Nagel, (Prof., Philosophy, New York U.), READING the sovereign rights to self-ownership and self- are not self- applying. We must first determine the realm to which they properly NOZICK: ESSAYS ON ANARCHY, STATE, AND UTOPIA, 1981, 199. apply. That step is missing in the libertarian argument that one's right to Moreover, there is a big difference between suddenly expropriating half self-ownership necessarily entails a right to retain all the fruits of one's of someone's savings and attaching monetary conditions in advance to labor. activities, expenditures, and earnings—the usual form of taxation. The latter is a much less brutal assault upon the person." Whether this kind 25. John Stick, (Prof., Law, U. of Southern California Law Center), of limitation of individual liberty should be permitted, to acquire NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 381. resources for the promotion of desirable ends, is a function of the gravity Nozick may mean merely that a scheme of laws that attempts to of the violation and the desirability of the ends. preserve a partially egalitarian society will infringe upon liberty by 31. Sean Byrne, (Prof., Philosophy, Dublin Institute of Technology), restricting the use of property and by redistributively taxing. But if this is all that Nozick is claiming, his argument that liberty disrupts patterns STUDIES: AN IRISH QUARTERLY REVIEW, Summer 1986, 191. The dissolves into his very implausible argument that redistributive taxation fundamental aspect of the market to which all Friedman's arguments is theft, plus his bare assertion that his theory of property rights is point, but which he never acknowledges, is that the distribution of the correct. Therefore, any theory of property which, like Rawls', is different rewards it produces is often arbitrary and unjust and cannot be altered from Nozick's must constrain liberty. Nozick has no argument against except through government intervention. Friedman argues for example, Rawls other than whatever argument he can make directly in justification that the goods which are produced are the goods which people 'want'. of his own theory of property. However, Nozick gives no positive He ignores the fact that, as Mishan argues, people can be made to want argument for his theory of property other than describing it and almost anything which is produced. Many people make fortunes assuming its intuitive appeal. producing intrinsically harmful goods such as tobacco. 26. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), 32. Alexander Kaufman, (Prof., Political Science, U. Georgia), POLITY, July 2004, 560. Nozick views historically established entitlements as NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 340. unrevisable facts regarding the distributive requirements of justice. Nozick does not tell us the origin of the stringent rights on which he Nozick's approach therefore insulates historically established rights- relies; he admits in his preface that he "does not present a precise claims from reevaluation and revision. Rawls's approach, in contrast, theory of the moral basis of individual rights." The closest Nozick comes critically evaluates elements of the political tradition, including rights- to a statement of the origin of rights is a brief and vague passage in claims deriving from practices within that tradition. Claims of entitlement, which he suggests that constraints against ill-treatment are "connected like all other claims grounded in the political tradition, must satisfy a with that elusive and difficult notion: the meaning of life." stringent standard of justification. 33. Jeremy Waldron, (Prof., Law, NYU), SAN DIEGO LAW REVIEW, Aug. 2011, 800. In actual fact, no one has been assigned an initially equal share of resources, nor have most people had an opportunity to insure themselves in a fair market against lack of talent, disability, or various forms of bad luck. They are stuck in the real world, cursed with a heritage of what almost anyone would have to describe as injustice, and that is the world in which they suffer unemployment, deprivation, and insecurity, in which their children go hungry, and in which they have to make whatever appalling choices are left open to them. 36

34. John Stick, (Prof., Law, U. of Southern California Law Center), 39. Robert Nozick, (Prof., Philosophy, Harvard U.), PUBLIC AFFAIRS, NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 378. Autumn 1973, 66. The man who chooses to work longer to gain an Historical principles are principles that identify individual entitlements. income more than sufficient for his basic needs prefers some extra An entitlement is always dependent upon some set of rules which sets goods or services to the leisure and activities he could perform during its terms. Under Nozick's theory of property, I am entitled to my the possible nonworking hours; whereas the man who chooses not to property if I acquired it according to the rules of just acquisition and just work the extra time prefers the leisure activities to the extra goods or transfer -- which are rudimentary rules of property and contract. The services he could acquire by working more. Given this, if it would be question remains how to draft the rules that establish the entitlements. illegitimate for a tax system to seize some of a man's leisure (forced The standards governing the drafting of these rules will always be labor) for the purpose of serving the needy, how can it be legitimate for fundamental in Nozick's sense. Perhaps Nozick is claiming that the a tax system to seize some of a man's goods for that purpose? Why standards used for drafting the rules that set up the scheme of should we treat the man whose happiness requires certain material entitlements need not be end-result standards. But given the dichotomy goods or services differently from the man whose preferences and he has set up, he is forced to define a theory that is fundamentally desires make such goods unnecessary for his happiness? Why should historical. And whatever else they may be, the standards used for the man who prefers seeing a movie (and who has to earn money for a drafting the property rules cannot be historical in Nozick's sense. ticket) be open to the required call to aid the needy, while the person who prefers looking at a sunset (and hence need earn no extra money) 35. John Stick, (Prof., Law, U. of Southern California Law Center), is not? Indeed, isn't it surprising that redistributionists choose to ignore NORTHWESTERN UNIVERSITY LAW REVIEW, Spr. 1987, 388. the man whose pleasures are so easily attainable without extra labor, Nozick calls his theory of property an entitlement theory. The core idea while adding yet another burden to the poor unfortunate who must work is that once people have justly acquired property, it rightfully can be for his pleasures? If anything, one would have expected the reverse. taken from them only with their consent. A full entitlement theory of property, for Nozick, consists of a principle that describes how 40. Mark Stein, (Ph.D. Candidate, Political Science, Yale U.), previously can be justly acquired, a principle that NORTHERN ILLINOIS UNIVERSITY LAW REVIEW, Spr. 1998, 341. describes how property can be justly transferred (only by consensual Nozick subscribes to what he calls the "classical liberal" view that the transactions), and a principle of rectification that describes how things right of people to control their own bodies and actions is a property right, are set right if either of the first two principles are violated. Nozick does the right of self-ownership. He claims that a redistributive system not assess the justice of the current distribution of property by looking at invades that right, making others "a part-owner of you . . .giv[ing] them a the pattern of its distribution, as Rawls does when he looks at the property right in you." A redistributive system, according to Nozick, magnitude of the inequality between rich and poor. Instead, Nozick institutes partial "ownership by others of people and their actions and looks at the history of how each individual came to own his or her share. labor." In a similar vein, Nozick argues that taxation of labor income is If the first two principles of just acquisition and transfer were not violated "on a par with forced labor." during this history, the ownership is just, no matter what distributional 41. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW patterns arise. REVIEW, Fall 1995, 784. Nozick's theory does not start with a premise 36. Pulin Nayak, (Prof., Economics, Delhi School of that holdings should be equal, only that they should be acquired in just Economics), ECONOMIC AND POLITICAL WEEKLY, Jan. 28, 1989, ways. From this focus on just acquisition, there is nothing troubling PE-4. One of the root causes of underdevelopment of colonial countries about the outcome of an argument that does not have equality (or is the outflow of surplus from it to the imperial master country. The increased equality) as a goal. mechanism of surplus extraction from the satellites into the metropolis 42. Donna Byrne, (Prof., Law, Widener School of Law), ARIZONA LAW was often crude and coercive: it involved outright loot and plunder. But more often than not, the relatively subtler process of exploitation via REVIEW, Fall 1995, 785. Nozick challenges Rawls's theory because it is unequal exchange was much more devastating. an "end-result principle." A patterned end-result principle is one that looks around at the actual distribution at some point in time and 37. Stephen O’Hanlon, (Prof., Philosophy, Temple U.), CARDOZO pronounces it just or unjust without regard to how it came to be that way. PUBLIC LAW, POLICY, AND ETHICS, Fall 2009, 57. Given the likely In other words, the pattern, rather than the history of the distribution, is imperfections associated with such a system, it may be morally what matters. The problem is that, as noted above, no acceptable end- necessary to provide all individuals with at least sustenance and result pattern would be a stable one if people are allowed to make opportunity, which are not guaranteed in Nozick's minimal state. This is choices about the disposition of their property. Rawls, of course, because there are likely injustices that have occurred, that have not recognizes this instability and advocates taxes that would reduce the been recognized, as well as inadequate compensations that may have level of inequality even if that inequality develops legitimately. Under had effects not just on individuals, but even on large groups and Nozick's theory, on the other hand, people are entitled to their natural potentially all of society. The implication is that, given an undeveloped assets. In addition, provided there is no injustice in the transfer or and likely imperfect system of rectification that is needed to legitimize acquisition of holdings, people are entitled to the resulting holdings, acquisition, transfer, and holdings, it is unwarranted to allow (perhaps however unequal. Nozick's purpose for probing this subject is to many) individuals to go unnourished and uneducated just because determine whether there is a justification for a state "more extensive generally strong conclusions have been made regarding historical than the minimal state" based on distributive justice. Essentially, Nozick entitlement without fully legitimizing the very principles on which generally finds no moral justification for redistribution to support more entitlement is founded. than the most minimal state. 38. Virginia Held, (Prof., Philosophy, City U. of New York), SOCIAL 43. Joseph Bankman, (Prof., Law, U. Southern California), CALIFORNIA RESEARCH, Spr. 1976, 187. Nozick's principles imply that if a man in LAW REVIEW, Dec. 1987, 1916. Under entitlement theories and certain the year 1500 had acquired a small sum of money from discovering other nonwelfarist theories, an individual has a right to a good some precious stones in unoccupied land, and if this money has been regardless of whether her ownership of the good is consistent with the increased through investment and has been legitimately handed down welfare of others or even with her own welfare. For example, according from generation to generation so that an American child is born to Nozick, a person who acquires a good in a just manner would have a inheriting from it a billion dollars in , that property is his right to the good even if it were of little or no value to her and of to dispose of entirely as he sees fit. Another child born next to him at the enormous value to others. same time to extreme poverty and deprivation of all kinds has no rights at all to have any of that billion shared with him. Nozick does acknowledge that if there had been an injustice in the acquisition and transfer, back there somewhere, this should be rectified, but this problem of knowledge, unlike some others, does not seem to him severe, and does not seem to him to weaken his historical (hysterical?) theory of justice. 37

44. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM 50. Jan Narveson, (Prof., Philosophy, U. of Waterloo, Canada), NYU URBAN LAW JOURNAL, Spr. 1996, 621. Robert Nozick's Anarchy, JOURNAL OF LAW & LIBERTY, 2005, 944. The idea of "maximin" is a State, and Utopia exemplifies the conservative libertarian philosophy conceptual loose cannon. For if we are to minimize the difference which underlies the fiscal exchange theory of tax. Nozick's theory of between two variables, what we get is absolute equality at the limit--not justice is procedural, emphasizing freedom or liberty. His stress on some kind of moderate welfare state in which the gap between rich and procedure justifies unequal distributions: An unequal distribution is just if poor is only just so big. Philosophers in the literature have walked right the method which produces it is just. Nozick's premise is a Lockean into this trap. Everyone seems to think that Rawls's principle actually conception of entitlement, but with a very important modification. means something. It does not, and only some kind of predisposition to According to Locke, the rights of the individual precede the state, whose defend things as they are can motivate people to think it does. function is to provide such services as are necessary (such as Meanwhile, we need only point out that anything done in the name of protection of person and property) to enable the individual to flourish. this absurd principle is necessarily going to be to the disadvantage of The individual has a natural right to his body and, as a consequence, those "more talented" persons who will pay the bills. And that, as we has a natural right to the fruits of his labor and to any property with have seen, violates fairness as characterized by Rawls. which he has commingled his labor. This entitlement is limited by 51. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' Locke's proviso that a person may appropriate property only if his appropriation does not disadvantage another. In other words, I may THEORY OF SOCIAL JUSTICE, 1980, 445. Libertarians charge that appropriate some of good X only so long as enough X is left for others. Rawls' conception of the original position as consisting of agents ignorant of their own individuating characteristics weights the procedure 45. Christopher John Nock, (Prof., Philosophy, McMaster U.), of choice in favor of egalitarian principles. Rawls represents his CANADIAN JOURNAL OF POLITICAL SCIENCE, Dec. 1992, 680. principles of justice as those which would be chosen from an initial Nozick's case for laissez-faire capitalism is grounded in his commitment position of equality, in which agents are unable to press for unfair to the "classical liberals' notion of self-ownership.” At the heart of this advantages. His agents are defined as ignorant of their own values, notion is a principle of equal liberty. Nozick cites Locke's statement of social positions and natural endowments, as well as of the particular this principle: "we must consider what State all Men are naturally in, and facts of their society. The idea is to eliminate factors which might bias that is, a State of Perfect Freedom to order their Actions, and dispose of the choice of principles. The fact that his principles would be chosen their Possessions, and Persons as they see fit ... without asking leave, from this position of fairness is supposed to add to the intuitive or depending upon the Will of any other Man."" Locke men might be put plausibility of the principles. out of this state was through their consent, or by forfeiting their right to 52. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' freedom by invading the equal right of others to the same." Insofar as a THEORY OF SOCIAL JUSTICE, 1980, 445. Rawls' contract, it should man respected this equal right of others, he was to be left free to govern be noticed, is very different from that in classical social contract theories. his own life in his own way. Since he never argues that actual men would all freely agree to his rules 46. C. Mezzetti, (Prof., Philosophy, Linacre College, Oxford U.), SOCIAL given the choice among alternatives, as does for example Hobbes, it is CHOICE AND WELFARE, 1987, 27. The Nozickian clear that he is not trying to justify his preferred social institutions on the provides a moral justification for the market system whereas the working basis of real interest or consent. The central notion in Rawls' original of the market system supports the Nozickian view by assuring the position is not in fact that of free choice, as it was in the early social goodness of consequences. The descriptive limits of the perfectly contract tradition, but that of fairness or equality, as instantiated in the competitive analysis of the market system and the diffuse extension of conditions of his veil of ignorance. If real agents would freely choose market failures pose serious doubts to the general acceptability of the arrangements which would also be chosen by hypothetical agents Nozickian rights system in terms of consequences. ignorant of their social positions and natural endowments, there would be no reason to think about Rawls' original position at all. 47. Karen Lebacqz, (Prof., Ethics, Pacific School of Religion; Ph.D., Harvard U.), SIX THEORIES OF JUSTICE, 1986, 59. According to 53. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' Fishkin, Nozick's approach can be viewed as "protecting 'capitalist acts THEORY OF SOCIAL JUSTICE, 1980, 446. While real contracts between consenting adults.' That is, Nozick begins with assumptions represent compromises or free exchanges, neither is present in Rawls' about the right to own private property and to exchange it within certain version, since his hypothetical agents are by definition all the same boundaries of free and knowledgeable consent. (each knows nothing of himself which could differentiate him from others), and there is nothing for them to compromise or exchange. He 48. Marjorie Kornhauser, (Prof., Law, Tulane Law School), FORDHAM cannot argue from the agreements of such purely hypothetical agents URBAN LAW JOURNAL, Spr. 1996, 622. The Nozickean theory, based alone that real people are bound to his rules of justice; he is only trying on an entitlement to private property as a prerequisite for liberty and to dramatize by this method which rules for the distribution of social human flourishing, mandates a free-market system. Since the right to benefits are just and fair. The argument here is not that real rational property includes the rights to use, possess, and dispose of the agents would agree if given the choice, and thus should feel bound to property, freedom of contract is necessary. his system as by a promise, but rather that they should agree to his 49. Alan Goldman, (Prof., Philosophy, U. Miami), JOHN RAWLS' rules of justice." The central idea is to define a situation in which the THEORY OF SOCIAL JUSTICE, 1980, 454. First, it can be pointed out choice of distributive rules must be fair and governed only by theorems that in ordinary life we normally do not act in a maximin fashion even if of rational choice. This is to be accomplished by means of the veil of we are uncertain about the probability of various situations occurring. If it ignorance. The application of the theorems of rational choice, developed is a nice day and the chances of rain seem slight, we do not walk originally by economists to govern strategies in situations in which around with raincoat and umbrella on the grounds that the worst choices are made, makes some of Rawls' arguments sound pragmatic possible outcome would be to get caught in the rain without them. or prudential, though in relation to actual self-interested agents they are Rather we play percentages to maximize expected utility. It could be not. But for many libertarians, the only forceful arguments to guide replied that the seriousness of the choices in the original position conduct will be ones which are truly prudential, those which define the renders this example irrelevant; but, to take another common case, how best available compromises for real agents. many of us risk catastrophe by flying when we travel rather than taking the bus or train?'