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SAN BEDA COLLEGE

A CRITIQUE OF THE SOCIAL SECURITY SYSTEM USING ROBERT NOZICKS IDEAS OF THE MINIMAL STATE AND JUSTICE AS ENTITLEMENT

An Undergraduate Thesis Submitted to the College of Arts and Sciences San Beda College

In Partial Fulfillment of the Requirements For the degree of Bachelor of Arts Major in Philosophy-Human Resource Development

by Jimmy Jerard A. Castro March 2010

Chapter 1

Introduction In 1974, Robert Nozicks Anarchy, State and Utopia became one of the major works in modern political discourse because it was the first serious attempt to elevate the idea of libertarianism into the philosophical level. Nozicks

reactions to John Rawls idea of the social contract and distributive justice stem from his belief that the state originates from the free market evolution of the state from protection agencies that people voluntarily join to protect their rights against any potential violation. Therefore, he believes that the only acceptable

state is the minimal state, whose sole function is to protect the individual rights of its citizens. Anything that goes beyond the function of the minimal state is for him tantamount to a violation of individual rights. The idea of the Minimal State influences Nozicks theory of justice as entitlement. This idea basically means that people are entitled to what they own and are free to use/dispose of them as they wish, without state interference. Furthermore, Nozick believes that the only acceptable way of transferring property from one to another is through a voluntary, consensual manner. Anything other than that, he believes, is invalid. The concept of Social Security, defined as a program providing protection against socially recognized condition including poverty or old age 1 and its redistributive nature would look inherently invalid according to Nozicks
1

Social Security. http://en.wikipedia.org/wiki/Social_security Accessed 3 January 2010

philosophy. This study would attempt to look at the Social Security System from the perspective of Robert Nozicks philosophy and critique the Social Security System using his ideas of the Minimal State and Justice as Entitlement.

Statement of the Problem This research poses the major question: How does the Social Security System violate an individuals property rights using Nozicks ideas on the Minimal State and Justice as Entitlement? The major inquiry will be answered by considering the following sub-questions: A. What is Robert Nozicks idea of the Minimal State? B. What is his idea of Justice as Entitlement? C. What is the intended purpose of the Social Security System?

Significance of the Study This study is significant because it would be one of the first serious philosophical challenges to the Social Security System as a legitimate state function in our society. Since the Social Security System is widely accepted as beneficial to society, attempts to debunk it are not mainstream. Furthermore,

this work would be one of the first to introduce the libertarian idea of Robert

Nozick to local discourse, since his ideas have valid points to consider. His beliefs about the state and its functions, and an individuals property rights can be adapted in the local situation.

Scope and Limitation The scope of this research includes Nozicks idea of the Minimal state-how it arises from a pre-political state of nature. Concepts related to Nozicks Minimal State, such as the dominant protective association, Side-Constraints, the Principle of Compensation and the Harm Principle shall also be covered in this research. This research also covers Nozicks idea of justice as entitlement, and how it compares with other principles of justice. Related concepts, such as Nozicks principle of just acquisition and transfer and principle of rectification, as well as criticisms by other thinkers against Nozicks ideas of the Minimal state and Justice as Rectification are also included in the discussion. The Social Security System will also be a scope of this research. Focus will be given to its intended purpose and its method of operation, as stated in Republic Act 8282. However, it will not be concerned with actual statistics, but only its purpose and the manner by which it works as a state function.

Review of Related Literature The materials that are presented are about Nozicks ideas on the Minimal State and Justice as entitlement, and other thinkers viewpoints about them. Some offer criticisms of Nozicks ideas, while others defend Nozick. viewpoints will be discussed in greater detail in the succeeding chapters. These

The Minimal State The Minimal State is a state that exists only for the purpose of protecting individual rights. In Robert Nozicks Anarchy, State and Utopia2, the beginnings of the minimal state is discussed as a product of different protective associations which, through free market competition have left a single entity called a dominant protective association. The dominant protective association is the same as an ultra-minimal state, which holds a monopoly of force within a certain territory, but does not provide protective services to everyone in it. According to Nozick, this becomes a minimal state only when the dominant protective association extends its services to individuals who have not availed of its services beforehand, in exchange for their right to protect their own rights. However, this view is

opposed by Murray Rothbard, in the article, Robert Nozick and the Immaculate Conception of the State3 which challenges the historical validity of the minimal
2

Nozick, Robert. Anarchy, State and Utopia (Oxford: Blackwell Publishers Ltd, 1974)

Rothbard, Murray. Robert Nozick and the Immaculate Conception of the State. Journal of Libertarian Studies, Vol.1 No.1 (1977), pp. 45-57

state and claims that states originated through violations of individual rights. Rothbards claim is refuted by Loren Lomansky, in the essay Nozicks libertarian utopia4, in which she claims that Nozicks idea of a minimal state is only a hypothetical model to describe how individual rights and the states role comes about. With regards to the transition from an ultra-minimal state to the minimal state, some thinkers believe that there might a possible redistribution by the state in order to provide protection to the non-clients, as claimed by John Danley in the article Robert Nozick and the libertarian pardadox. 5 Geoffrey Sampson concludes that the minimal state is in fact, redistributive because other people pay for the protective services of non-clients. Milton Frisk counters this view in the article Property and State: A discussion of Robert Nozicks Anarchy, State and Utopia. In this article, Frisk claims that the minimal state is purely a product of the invisible hand, and that universal protection is merely domination by one group by another. However, he also criticizes the transition between the minimal to the ultra minimal state from this perspective, the domination by one group over another. For Robert Ladeson, in the article Nozick on Law and the State: A critique6 any protective association, dominant or not is already a state due to them possessing certain characteristics that to him, states possess.
4

Lomansky, Loren E. Nozicks Libertarian Utopia. Contemporary Philosophy in focus, (Cambridge:Cambridge University Press, 2002) pp.59-83
5

Danley, John R. Robert Nozick and the Libertarian Paradox. Mind, New Series, Vol.88, No.351 (July 1979), pp.419-423
6

Ladeson, Robert F. Nozick on Law and the State: A critique. Phlilosophical Studies: An international journal for Philosophy in the Analytic Tradition. Vol.34, No.4 (November 1978) pp.437-444

Justice as entitlement The entire idea of Justice as entitlement is basically an explanation of Nozicks historical principles of justice and his principles of just acquisition and transfer, as found in the second part of the Anarchy State and Utopia. With regards to Nozicks theory of Justice as entitlement, Robert Nozicks article Distributive Justice7 discusses the second part of his Anarchy, State and Utopia and compares it with the Rawlsian concept of justice as fair distribution of benefits and burdens. Robert E. Litans article On Rectification with Nozicks

Minimal State8 focuses exclusively on Nozicks theory of Rectification. It enumerates what kinds of rectification exists, and what is needed to enact them. Furthermore, the main purpose of rectification is also discussed in this article, as well as the question about whether or not rectification leads to a redistributive justice system. G.A Cohen, in his article Robert Nozick and Wilt Chamberlain, 9 How Patterns Preserve Lliberty discusses why it is short-sighted to consider only the mode of transfer and not look at the circumstances beyond it. In the article, he adds a power element within society, where he claims that those who gain from any transaction also gain power, and if an imbalance is allowed to grow big enough, it will be a threat to liberty.
7

Nozick, Robert. Distributive Justice. Philosophy and Public Affairs, Vol.3 No.1 (Autumn 1973) ,pp.45126
8

Litan, Robert E. On Rectification with Nozicks Minimal State. Political Theory, Vol.5 No.2 (May 1977), pp 233-246
9

Cohen, G.A. Robert Nozick and Wilt Chamberlain: How patterns protect liberty. Erkenntnis (1975-), Vol.11 No.1 Social Ethics part 1 (May 1977) pp. 5-23

With regard to patterned distribution, Pulin Nayak in the article Nozicks entitlement theory and distributive justice 10 claims that there are always patterns regardless of what type of principle of justice. In the article, he claims that even in Nozicks historical principle of justice, patterns are formed, although differently, for the sake of efficiency. Thomas R. De Gregori, in the article Market Morality: Robert Nozick and the Question of Economic Justice11 synthesizes Nozicks theory of Rectification with the minimal state and the historical principle of justice. He finds a potential conflict between the apparent redistributive nature of the extensive state that he thinks is established for the purposes of rectifying injustices and compensate its victims and the voluntary nature of historical principles of justice. For him, it is hard to explain how and if it is possible that this two would not contradict each other, and how an extensive, redistributionist state would give way to the restoration of historical principles of justice. The next chapters will discuss the ideas of these opposing viewpoints regarding both Nozicks ideas about the Minimal State and Justice as entitlement and criticisms of Nozicks ideas, and would try to provide answers for these criticisms.

10

Nayak, Pulin B. Nozicks entitlement theory and distributive justice Economic and Political Weekly Vol.24 No.4 (January 28, 1989) PE4-PE8
11

De Gregori, Thomas R. Market Morality: Robert Nozick and the question of economic justice. American Journal of Economics and Sociology, Vol. 38 No.1 (January 1979) pp.17-30

CHAPTER 2 Individuals have rights, and there are things no person or group may do to them ----Robert Nozick, Anarchy, State and Utopia

The Protective Association

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Robert Nozicks political philosophy begins with the origin of the state. In his book Anarchy, State and Utopia; he says that ever since the pre-political state of things, people have certain rights and each individual has the right to enforce these rights, or if he feels unable to enforce these rights by himself, to join others in doing the same. These bands of people then form mutual protective

associations that are dedicated to protecting each other from entities that may try to violate their rights.12 Because most people are unlikely to be able to defend and enforce their rights individually, they will form numerous mutual protective associations within any given territory.13 These different protection agencies will then compete with one another and from the various transactions that will take place, a single, dominant protection agency shall emerge. 14 Nozick claims that this Dominant Protective Association resembles a minimal state, because its only role is to protect the rights of individuals against violation. Furthermore, because it

originated from the voluntary transactions of people, it could be said that the Dominant Protective Association is a product of the invisible hand.15 With regards to the question of whether or not the Dominant Protective Association is a state, Nozick gives 2 conditions for it to become one: 1) It must have a monopoly of force within its territory, and 2) It must provide protection for

12

Nozick, Robert, Anarchy, State and Utopia (Oxford: Blackwell Publishers Ltd, 1974) p.12 Nozick. Nozick, p.16 Nozick, p.18

13

14

15

11

all individuals in its domain. 16

Given these criteria, a protective association

cannot be considered a state, since it neither has a monopoly of force, meaning non-clients can enforce their rights with nothing prohibiting them from doing so, and because the protective association provides services only to its clients and not to everyone within its area of operations. Furthermore, Nozick also states that a protective association has no power to impose any prohibition upon non-clients from independently enforcing their rights more so threaten force against those who would do such things to the protective associations clients, since to him, the a protective association exists for the sole purpose of defending/enforcing the rights of its clients against violation.17

The Dominant Protective Association Regarding issue of how a Dominant Protective Association could become a state. Nozick says that in order to protect everyone within its boundaries, the Dominant Protective Association should have some way to generate the revenue needed.18 The assumption that clients of the Dominant Protective Association are to shoulder the bill for providing protection to the non-clients within its territory
16

Nozick, p.22 Nozick, p.24-25 Nozick, p.25

17

18

12

would be misleading, as such line of thought may conclude that the Dominant Protective Association is redistributive in nature, which it is not. Nozick claims that the Dominant Protective Association is an ultra-minimal state, since it maintains a monopoly over all use of force, except
the use of force

necessary in immediate self defense and excludes retaliation for wrongs, but provides services only to those who purchase its policies. In short, A Dominant Protective Association is an ultra-minimal state because although it holds a monopoly of force, it does not provide protection for all individuals within its territory.19 How then, would an ultra-minimal state attain the status of a full-fledged state? Nozicks answer points to the invisible hand. He claims that a Dominant Protective Agency would come to provide protection to non-clients within its territory through compensation.20 In this scenario, the Dominant Protective

Association would list reliable ways to enforce rights and prohibit those nonclients, which it fears would enforce their rights in what it deems as unreliable ways.21 Since the clients of a Dominant Protective Association have the right to be shown sufficient information that a procedure of justice to be applied to the clients is reliable and fair, 22 he may empower his protective agency to exercise for him his rights to resist those unfair and unreliable systems. 23 Therefore, the
19

Nozick, p.26 Nozick, p.83 Nozick, p.101 Nozick, p.102 Nozick.

20

21

22

23

13

Dominant Protective Association is empowered to prohibit anyone from applying to its clients any procedures with sufficient information about its reliability and fairness. To compensate the non-clients being prohibited from enforcing their rights, the Dominant Protective Association would extend its protective services to them.24 This is so because it is the least expensive way to compensate them. 25 In this case, the prohibitors (the clients) pay for the expenses necessary to provide the non-clients with such services, 26 and the non-clients would accept because it costs less than the amount that they would have incurred if they were to enforce their rights on their own. It should be noted that such payment is not redistributive, but more akin to a transaction. The clients of the Dominant Protective Association pay for the protection of the non-clients rights in exchange of the non-clients giving up their right to enforce their own rights their own way, which the Dominant Protective Association deems as unreliable, thus to be resisted. It should also be noted that from the protective agency until its full form is attained, the only purpose of the state is to protect individual rights against violations and nothing else.

Side Constraints
24

Miller, David L. Justification of Political Authority Contemporary Philosophy in focus, (Cambridge:Cambridge University Press, 2002) p.13
25

Nozick, p.110 Nozick..

26

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Nozick thought that the individual is already an end, and not just a means to an end. Because of this, he says:
Instead of incorporating rights into the end state to be achieved, since it results in an even greater violation of rights, it might be placed as side-constraints upon actions. 27

This means that because the states sole purpose is to protect individual rights, the state cannot possibly use the protection of rights to direct its actions upon. Unlike the utilitarian system which deliberately aims to maximize the greatest good for the greatest number, or Rawls belief that the actions of a state should try to benefit the disadvantaged, Nozick believes that such deliberate aims only serve to violate individual rights more. Therefore, the idea of sideconstraints was put in play. Side constraints are limitations on an individuals action lest his actions violate the rights of other individuals. This means that an individuals actions are only limited to those that do not harm other people or violate their rights. An individual, for example, may do transactions in the

market, and dispose of his rights or properties at will, but he cannot force or prevent others from doing the same. For Nozick, Side-constraints express the inviolability of individuals. The limitation it imposes on the actions of individuals to other individuals stresses the fact that an individual is an end unto himself and is not just a means to an end. 28 He compares this to an end-state view which treats individuals as ends to means. The end-state goal, according to him, is only to minimize the use of
27

Nozick, p.29 Nozick, p.32

28

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people as means, not to forbid it. 29 Instead of the state trying to deliberately act for the protection of individual rights, it should instead employ these SideConstraints and limit its actions within the Side-Constraints. Nozick defends his idea of an individual as a means unto himself, claiming that an individual cannot be violated for the greater social good because he believes that there is no social entity with a good that undergoes some sacrifice for its own good. lives.30 What exists, for him are individual people, with individual

About this fact, he says: Side-constraints reflect the fact of our separate existences. They
reflect the fact that no moral balancing act can take place among us. There is no moral outweighing of one of our lives by others as t o lead to as greater overall social good. 31

This belief that there are individuals with separate lives and that no one may be sacrificed to others leads to a libertarian Side-Constraint that prohibits aggression against another. However, Nozick thinks that this would not lead to the full libertarian constraint. He says that further steps would be needed to
29

Nozick. Nozick, p.33 Nozick.

30

31

16

reach a prohibition on paternalistic aggression; using force against an individual for the benefit of the person against whom it is wielded. 32

Prohibition on Aggression Regarding prohibition on aggression, Nozick says:


My non-paternalistic position holds that someone may choose (or permit another) to do to himself anything, unless he has acquired an obligation to a third part not to do so or allow it. 33

It has been reiterated several times that an individual is free to do whatever activities so long as he does it with the consent of either himself or that of others. But what about the things individuals do to other individuals without the latters consent? Side-constraints prohibit these actions, but it leaves

interesting questions, namely: 1) Why is any action prohibited rather than allowed provided its victims are compensated, and 2) Why not prohibit all crossings of the moral boundary that the party impinged upon did not consent to?, Why permit anyone to cross a boundary without consent?34 Merely to demand compensation is not enough to deter action, since the fact that the victim can be compensated implies that violations of rights can be done repeatedly to an individual. If the transgressor can compensate the victim,
32

Nozick, p.34 Nozick, p.58 Nozick.

33

34

17

then the demand for compensation does not deter him transgressing the victims boundaries.35 Nozick says that even those acts that can be compensated for can be prohibited for some of these cause fear 36. Such things include physical violence against individuals. For example, even if parties A and B agree that Party A could compensate Party B for attacking him with a set price, the attack would still need to be prohibited because it breeds fear and would lead to an apprehensive populace. Nozick thinks that these things must be prohibited and made punishable.37 In short, Nozick differentiated two categories of wrongs. 1) Private wrongs: transgressions that violate the rights of others, but can be compensated, and 2) Public wrongs: transgressions that will lead to fearful people. thinks should be prohibited.38 Conversely, prohibition cannot always be implemented. Nozick believes that the prohibition of all impingement not consented, including accidental and intentional acts would make people fearful that they may possibly be punished for their actions and thus, propagate a feeling of insecurity. 39 The latter, he

Principle of Compensation
35

Nozick. Nozick, p.66 Nozick. Nozick, p.67 Nozick, p.71

36

37

38

39

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Individuals who are prohibited from doing certain actions in order to reduce the risk to others are put in a disadvantageous position. Some

alternatives that they would take may cost them more than what usually spend doing their already prohibited activity. Nozick believes that the individuals who prohibit must compensate the prohibited for the losses they incur because of the prohibition. He states:
a person must be compensated for the disadvantages imposed upon him by being forbidden to perform an activity for these sorts of reasons. Those who benefit the reduction in risks to themselves have to make it up to those who are restricted.

Nozick delimits the class of actions covered by the claim for compensation. For him, activities that play an important role in peoples lives which an individual is prohibited from doing must be compensated. 40 The principle of Compensation also requires that people be compensated for having certain risky activities prohibited to them. He also adds that there is a right to

forbid such actions, but only provided that they be compensated for the prohibition.41 The principle of compensation stays true to Nozicks belief that individuals are not merely means to an end, but ends unto themselves. By requiring that certain individuals be repaid for whatever other individuals prohibit from them, he
40

Nozick, p.81 Nozick, p.83

41

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implies that individuals cannot be simply sacrificed to benefit their interests. For a prohibition to be acceptable there must be an exchange. The prohibited party shall trade his right to perform an action for something else. The idea of compensation is important in the transition of the Dominant Protective Association from an ultra-minimal state into a minimal state. The

principle of compensation was evident in how the Dominant protective Association was able to prohibit non-clients from enforcing their own rights without violating their right to do so.

Harm Principle By now it should already be clear that the state, according to Nozick, exists solely for the protection of individual rights. This means that the state cannot arbitrarily perform actions that violate individual rights. It cannot usually coerce individuals to perform acts that would violate their rights, but there are instances when it could do so. Nozick however, thinks such coercion is only justifiable when the act that is to be prevented by coercive action is a violation of individual rights.42

42

Sampson, p.96

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An example of this is the expenses levied by the state in order to prevent murders. The act of murder is a violation of an individuals right, and as the protectors of individual rights, the state has been granted the power to enforce the rights of its citizens. Therefore, it could levy the fees needed in order to function according to its role and protect the individuals rights from violation. 43 However, this does not extend to other services not intended to protect individual rights. These include services such as social welfare and public-

funded healthcare. The state cannot charge levies from its citizens so that it could provide them with such services, since the things that social welfare programs try to avoid, namely: hunger, poverty, disease and so on do not by themselves violate individual rights. Using coercion is justified when preventing actions that would violate individual rights, such as murder because failure to protect against murder would:
encourage murder and thereby reduce every citizens expectation of living freely, enjoying the way of life he has managed to gain in the markets.

On the other hand, allowing a citizen to die from lack of medical treatment does nothing to harm other individuals interests. 44 The difference is legitimate reasons for coercion, such as prevention of murders; rights-violations would be unchecked unless action is done, while inaction regarding human welfare does not necessarily propagate rights-violation. An individuals quality of life is his own
43

Sampson. Sampson.

44

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concern, and it is not justifiable for a state to coerce people to prevent acts that by themselves do not violate individual rights. Another difference is rooted in the purpose of the state itself: the protection of individual rights. A state is empowered to protect individual, because its citizens have empowered it to protect their rights against aggression. They have not empowered the state to protect their welfare; therefore, it is not the concern of the state to provide welfare to its citizens. In short, since the sole purpose of the state is to protect individual right against aggression, a function that does not have this as its purpose is unjustified and should not be carried out.

Criticisms of Nozicks idea of the minimal state Murray Rothbard, in his essay Robert Nozick and the Immaculate Conception of the State attacks the entire idea of the minimal state. According to him:
it is highly irrelevant to see whether Nozicks ingenious logical construction (ultra-minimal state has ever occurred in history; namely whether any state, or most or all states have evolved in the Nozickian manner.45

He doubts the idea that the minimal state is a truly historical entity that faithfully reflects the real origins of present-day states He questions the historical
45

Rothbard, p.45

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validity of the state as originating from Dominant Protective Associations. Furthermore, he also suggests that the true historical origins of the present-day states are the opposite of what Nozick thinks. For him, present-day states are actually products of violations of rights. As he puts it:
In fact, there is no evidence whatsoever that any state was founded or developed in the Nozickian manner. On the contrary, historical evidence cuts precisely the other way, for every state where facts are available originated by a process of violence. 46

By attacking the validity of Nozicks idea of the evolution of the state from protective associations, Rothbard tries to discredit the idea altogether, and the implications it brings. If the historical validity of Nozicks idea is discredited, then the ideas regarding the state that are connected to it are also discredited. He adds:
Since Nozicks justification of existing statesprovided that they are to become minimal- rests on their immaculate conception and since no such state exists, then none of them can be justified, even if they should later become minimal.47

Rothbard claims that Nozicks theory of the minimal state can justify only those states that actually evolved from the Dominant protective associations. Since he does not believe in the existence of such, then Nozicks theory cannot justify present-day states. He then claims that if Nozick still wants to justify any
46

Rothbard. Rothbard.

47

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state as products of the free market, then he should join the anarchists and call for the abolition of present-day states and wait for his invisible hand theory to come about.48 However, some do not think of it that way. Loren Lomansky, in her essay, Nozicks libertarian utopia says:
the derivation of the minimal state is hypothetical, and an account of process by which institutions could have emerged. It is not presented as a historical model of evolution by any actual minimal state, of which there are none.49

She makes it clear that the Nozickian idea of the minimal state is not intended to justify any present-day state but to serve only as a foundation for his idea of the nature of the state and its role. Contrary to Rothbard, she does not consider Nozicks idea of the minimal state as a justification for present-day states, but as a probable model of how states could have evolved from the prepolitical to the present; therefore, there is no need for Nozicks idea to justify-any present-day state. John R. Danley, in his article, Robert Nozick and the Libertarian Paradox claims that there is a prima facie paradox in Nozicks idea with regards to the apparent redistribution that happens in the minimal state. He claims:
As Nozick sees it, the paradox involves the libertarian stand on redistribution and the nature of the night-watchman state. On one
48

Rothbard. Lomansky, p.64

49

24 hand, no moral state has the moral right to enforce redistribution of property. Yet, on the other hand even the night-watchman state appears redistributive as for the as the state provided protective services through everybody within its territory through a general tax.50

For him, the state coerced individuals for the payment of protective services of non-clients through a general tax. This appears to him as

redistributive, as it gives an impression that the state can force individuals to pay for a security system. Now he asks why not the same for nationalized healthcare and welfare? However, if the harm principle is used to justify the states coercion to citizens to levy funds for the security of everyone and to deny it for welfare policies, he then sees the paradox. He adds:
Given the private harm principle, the use of coercion to force their members to pay for the protection of the independents appears to be unjustified.
51

For him, not providing non-clients within a minimal state the protection they need does not seem to violate any right. It would not result in any violations of rights to the citizens not to provide the non-clients with protection services. 52

50

Danley, p.419 Danley, p.421 Danley.

51

52

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He implies that a paradox only occurs because Nozick rejects the Public harm principle, which stipulates that the state could justify restriction on liberty on the distinct ground that it is necessary to prevent impairment of institutional policies that are in the publics interest. Nozicks harm principle, according to him, only involves the Private harm principle, which only justifies restrictions to liberties to prevent injury to other specific individuals. Furthermore, he states that if the Public harm principle is accepted, theres no paradox, but it fails to come to grips with the more fundamental conclusion of whether or not the public harm principle is morally unjustified. Geoffrey Sampson, in his article Liberalism and Nozicks Minimal State, tackles the question of whether the minimal state is redistributive or not. He says:
One of the key principles of liberalism is that the state should not enforce redistribution. As far as possible, it should avoid interfering with the pattern of rewards which emerges from the free play of market forces, either by progressive tax, or providing a social wage. 53

He claims that the minimal state is non-redistributive, but points out that Nozick considers the idea of the minimal state as redistributive as an error because he thinks the minimal state is:

53

Sampson, p.93

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Only prima facie highly redistributive, and is after all non-

redistributive, but for reasons not discussed by earlier liberal thinkers. 54

Sampson considers Nozicks argument as fallacious.

For him, the

Dominant Protective Association could not be considered a state, since in it, protection and enforcement of peoples rights is treated as an economic good provided by the free market, and different individuals may pay for different levels of protection. This stands in contrast to the conventional view of the state, which must unconditionally offer protective services to everyone within its territory. This means in the state, protective services are distributed. Others pay more so that others may be protected, making it redistributive. 55 Nozick however, solves this problem by using the invisible hand and the principle of compensation.56 However, the fallacy in it is that Nozick presupposes that the benefits by a liberal state are benefits which can be charged out to individuals rather than having to be paid by a general tax. Sampson considers this as false, and claims:
The only benefits a liberal state which could reasonably seem as accruing to specific individuals are remedies provided by civil law against others misbehavior. Such benefits cost the taxpayers nothing,

54

Sampson. Sampson. Sampson, p.94

55

56

27 since the costs of civil action are paid by one of the parties, so no element of redistribution arises. 57

Furthermore, Sampson attacks the idea of the free market origin of the state as resting on inconsistent premises. According to him, for it to arise, it is necessary that individuals obey moral rules governing behavior in the free market, such as abiding by side-constraints, compensation etc. However, if that was the case, as Samspon claims, then there would not be a need for the state at all. If individuals acted in such manner, then why need a state? Anarchy itself would be an utopia. He adds:
If people do what they are morally required to do, then there would be no need for protective associations. Thus, one of the premises which Nozick needs in order to show that anarchy will develop into a minimal state itself guarantees that anarchy will remain anarchy and that no state of any sort will arise.58

Milton Fisk, in his review of Nozicks book, Property and State: A discussion of Robert Nozicks Anarchy, State and Utopia , states that the origin of the state due to a spontaneous formation. However, this spontaneity is due to the individuals self-interest.59 According to him, nobody really consciously wills

57

Sampson, p.95 Sampson, p.97

58

59

Fisk, Milton. Property and State: A discussion of Robert Nozicks Anarchy, State and Utopia. Nous. Vol.14 No.1 1980 APA Western division meetings (March 1980) p. 99

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the state itself, because everyone helps in its establishment but without noticing it.60 However, he argues that the monopoly of the Dominant Protective Association is not by the protection of personal interests, but when one group in a society stabilizes its domination of others by an armed force. 61 His criticism against Nozicks idea of the minimal state lies in the transition from the ultra-minimal state, to the minimal state when the state extends protective services to everyone within its territory. In the transition to universal protection, the non-clients might not receive warmly the Dominant Protective Associations denial of their rights to protect themselves independently; however, for Nozick, this cold reception by the non-clients is irrelevant. 62 Fisk claims that the problem is with the idea of compensation as the motive for universal coverage for protective services. Since non-clients cannot be counted to enforce their rights consistently with the interests of the state, and that non-clients enforcing their rights not according to state interests is something that a state tries to avoid, the state does its best to spread the conviction that it will enforce the rights of everyone equally and fairly.63 What does this imply? Fisk says that the practice of compensating nonclients from the disadvantaged position it puts them by prohibiting them from
60

Frisk, p.100 Frisk, p.101 Frisk.. Frisk.

61

62

63

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enforcing their rights is not rooted in the desire to compensate them, or to follow the principle of compensation, but fear of the non-clients. It means that it is not the pre-emption of violation of rights that pushes the clients of a Dominant Protective Association to prohibit non-clients from enforcing rights, but their fear that the non-clients might act in ways that do not conform to their interests. 64 Furthermore, Fisk expresses doubts regarding the promise of the state to protect the rights of everyone equally and fairly. He thought that the idea of equal and fair protection of everyones rights will not be the case in practice. He says that in reality, the rights of the dominant group are protected if they compete with the rights of the dominated, and that the legitimacy of the state depends on the conviction of equality, but its success depends on partisan practice. 65 If that is the case, then Fisks idea concludes that in a minimal state, there is only an expressed equal and fair protection of rights, but not a practiced one. This puts into question not only the idea of the state as far as providing equal protection of rights is concerned, but more so the validity of the minimal state itself as a state. However, some would conclude as irrelevant any discussion about the transition of the Dominant Protective Association from the ultra-minimal to the minimal state. Robert Ladeson, in the article Nozick on law and the state: a critique claims that the protective association itself, whether dominant or not already has the essential features of a state. He claims:
64

Frisk. Frisk.

65

30 A protective association has most of the basic governmental powers, as perceived by contractarian theorists, most prominently, the powers to legislate, adjudicate disputes and to punish. 66

Ladeson thinks that having such functions already suffice being called a state. It is true that even a non-dominant Protective Association can set rules and intervene with conflicts among its clients and punish those non-clients who commit violations against the clients, but there is an apparent difference between essential features of a state and being a state which functions as one. For example, an entity having the essential features of a state may or may not also enjoy a monopoly of force over any given area. If such an entity does

not enjoy the monopoly of force, then it is doubtful whether or not it would really function like a state. With regards to Protective associations, a protective agency, dominant or not may hold all these essential features of the state, but holding such features do not guarantee that it cannot function as a state should. Of course it is up to the reader to judge whether this difference is worth pondering on, but for a client of a state, there is a difference between a state, considered so simply because it holds essential features of a state, and one that operates like one.

66

Ladeson, p.439

31

Chapter 3 From each as they choose, to each as they are chosen.


---Robert Nozick, Anarchy,State and Utopia

Justice as entitlement With the idea of the minimal state existing only for the protection of individual rights established, Nozick turns his attention to his own idea of justice. Because of his claim that the minimal state is the most extensive state that can be justified, any more state violates peoples rights, he provides the foundation of his idea of Justice as entitlement. Unlike thinkers such as Rawls, who argued that justice is in the fair distribution of benefits and burdens, or John Stuart Mill, who simply wanted to maximize the greatest good for the greatest number, Nozick does not believe in distribution. For him:

32
There is no central distribution, no person or group entitled to control all resources, jointly deciding how they are to be doled out. 67

In short, Nozick says that the transfer of property and goods from one person to another does not go through a system of distribution. No entity decides which goes to whom and where. Nozick believes that what each person gets comes from others who give it for something in exchange, or as a gift. For him, many people control different resources and new holdings arise out of voluntary exchanges between them.68

Principles of Acquisition and Transfer Nozick believes that only a voluntary exchange is a just one, and people only have a right to their property if they came to acquire it under some principles, which are as follows:
1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. 2. A person who acquires a holding in accordance with the principles of justice in transfer from someone else entitled to that holding, is entitled to that holding.

67

Nozick, p.149 Nozick, p.150

68

33 3. No one is entitled to a holding except by (repeated) applications of 1 and 269

The principles of justice in acquisition and transfer simply mean that in order to have any entitlement to any property, one must have acquired it through a voluntary transfer. Whatever that was obtained in ways that are not voluntary or in ways that would violate individual rights does not rightfully belong to its recipient. The recipient then would have no right to it. Certain things, such as welfare benefits belong under the category of holdings which are not acquired through voluntary means. In most cases, social welfare is funded through coercive legislation and distributed in a centralized manner. This means that because social welfare benefits do not abide by Nozicks principles of just acquisition and transfer, its recipients do not have the right to the benefits they receive. This issue of distributed holdings as standing in conflict with justice will be discussed in more detail later in this chapter.

Historical and End-Result Principles of Justice Nozick differentiates his idea of justice as entitlement to other principles of justice in his discussion about the Historical and Current time-slice/End-Result principles. He claims that his idea of justice as entitlement is historical, meaning that the justice of distribution is based on how it came about 70. A just acquisition
69

Nozick, p.151 Nozick, p.153

70

34

in a historical principle is an acquisition that was carried out voluntarily without any trace of coercion, regardless of the after-effects of the transaction. For

example, a trade wherein a poor person would voluntarily give all his remaining possessions to a rich person would still be considered by Nozick as just, since it was done in voluntary manner, although it may worsen the condition of the former. On the other hand, other principles of justice follow the end-result principle.71 Under this principle, the justice of distribution depends on how things are distributed as judged by structural principles of just distribution. 72 This means the circumstances of trade are given consideration and that for a transaction to be considered just, it must be judged according to a certain fixed standard of justice. End-result principles of justice are concerned with the question Who ends up with what? and because of this, end-result principles create a patterned method of distribution and therefore, try to dictate the movement of goods and properties. Welfare economics is the theory of current time-slice principles of justice. Welfare economics operate under various matrices representing only the current situation. Its judgments are only limited to it, and it is only concerned with the circumstances of the involved parties.73

71

Nozick. Nozick, p.154 Nozick.

72

73

35

According to Nozick, the problem with end-result principles of justice is that they always try:
... to maintain a pattern that would continuously interfere to stop people from transferring resources as they wish, or to continually take from some persons resources that others, for some reason choose to transfer to them.74

What Nozick means is that end-result/distributive principles of justice would inevitably interfere with the right of individuals to conduct transactions as they wish. It is, in essence a violation of individual right to stop people from giving or receiving things they voluntarily intended to do. Furthermore, an end-result principle of justice is incompatible with the role of the state, as determined in the preceding chapter. Nozick believes that distributive principles of justice do not give people what entitlement principles do. They do not give the right to choose to do with what one has. Such distributive principles of justice stand in contrast with the historical principle of justice, which grants individuals the right to acquire and dispose of properties freely, as long as these acquisitions and disposals are done so voluntarily. Unlike in historical principles of justice, proponents of a

distributive system:

74

Nozick, Distributive Justice. p.60

36
focus upon criteria for determining who is to receive holdings. They consider the reasons for which someone would have something, and also the total picture of holdings.75

What this means is that in a distributive system of justice, the individuals freedom to enjoy his rights to their property is subordinated to the designs and patterns of distribution. Every transaction must conform to these patterns,

because proponents of an end-state/distributive principle of justice think that such patterns are in place to serve the common good. However, as mentioned earlier, what such interference does is simply violate an individuals right to enjoy his right to property. Furthermore, Nozick thinks that a distributive system of justice takes away mans right to his property. Patterns give other people an enforceable claim over the property of other people. According to him, under end-result principles of justice:
Each person has a certain claim to the activities and products of other persons, independently of whether the other persons enter into particular relationships that give rise to these claims, and independently of whether they voluntarily take these claims upon themselves, in charity or in exchange for something. 76

This means that the nature of end-result patterns of distribution relieves man of his right to his property. Suddenly, his right to use or to dispose of whatever he owns becomes subordinate to the patterns created by the distributive system of justice. For example, Person A, who owns a significantly
75

Nozick, p.64 Nozick, p.68

76

37

larger amount of property than others, is rightfully entitled to it assuming he acquired it under the principles of justice in acquisition and transfer, would suddenly find himself stripped of his right to enjoy the benefits of these properties and would be forced to give some of these up, so that those who have less-inlife, the so-called have-nots, would be also able to enjoy the benefits. However, the problem with this is that the question what gives other people the right to person As property? is not answered. In most cases, end-result principles are patterned after the pursuit of the common good. Welfare

redistributionists, in their desire to enhance the living standards of the have-nots would look to redistribute current property holdings according to various patterns, interfere with an individuals right to his property. Whether it is through a direct and simple seizure of property by the state, such as in the case of land reform, or a milder form of compulsory contribution to fund a social welfare program, such as the SSS, the fact is that other people are enforcing rights to properties they do not own. The question, What gives other people the right to an individuals property? is not answered. In short, whenever any other person claims a right to someone elses property without coming into agreement with the latter, he is in effect, seizing the property from him. Nozicks principles of just acquisition and transfer clearly state that a person only has a right to a property either through voluntary acquisition or voluntary transfer, and therefore, people who wish to spread the wealth are in fact thieves. What they are doing, namely, enforcing a right to a property they neither own nor have a right to, is theft. These people steal not

38

only the property itself, but the rightful owners sole right to it. Under end-result principles of distribution, one ceases to become the sole owner of his property. Nozick claims that because a rightfully acquired property is gained from voluntary exchange and that is from things earned with the fruits of ones time, such seizure not only makes other people owners of ones property property, but also of the individual himself. He says:
Seizing the results of someones labor is equivalent to seizing hours from him and directing him to carry on various activities. 77

If other people would enjoy the benefits of the work hours an individual puts in, then it means that the individual does not get compensated for his time. In effect, although not evident, the enforcement of other people to the properties they do not own makes slaves out of individuals, since the latter is being forced to accept an imbalanced transaction. In short, an end-result principle of

distribution is actually a vehicle for slavery! As Nozick puts it:


End-State and most other patterned principles of distributive justice institute (partial) ownership by others of people and their actions and their labor. These principles represent a shift from the classical liberals notion of self-ownership to the notion of (partial) property rights to other people.78

For Nozick, deviation from the first two principles of justice (acquisition and transfer) will involve other persons direct and aggressive intervention to

77

Nozick, p.69 Nozick, Anarchy, State and Utopia, p.172

78

39

violate rights, and would thus conflict with the earlier idea of side-constraints. 79 The mere act of claiming a right to other people or their property goes beyond the limitations that restrict an individuals action lest he violate the rights of other people. The principle of just acquisition and transfer is absolute only if since the beginning, its rules have been followed. However, for cases of an unjust

acquisition and transfer, or to address those who gained something without abiding by voluntary transfer, Nozick provides a new principle, the Principle of Rectification.

Principle of Rectification In cases where a holding was unjustly gained, Nozick presents the Principle of Rectification. This simply is about correcting the mistakes and Nozick

damages brought about by the invalid acquisition or transfer.

acknowledges that some transactions are not brought about by the principles of just acquisition and transfer and thus, he also implies that it is acceptable to take away the goods and return it to its rightful owner. The goal of rectification, aside from fixing the mistake done by the incorrect transaction, is to compensate its victims. In the article On rectification in Nozicks Minimal state, Robert E. Litan discusses the sub-concepts under rectification, and the prerequisites to it. He begins by enumerating the problems
79

Nozick, Distributive Justice, p.69

40

apparent in any case of violations of principles of entitlement which would necessitate rectification, namely: 1) It is not immediately apparent whether or not a claimant has a personal link between the injustice and his personal welfare, and 2) if so, what degree of proof is required? 80 Before these issues are resolved, Litan differentiates between the 2 main kinds of rectification: 1) Intra-generational: for living victims to collect rectification awards ; and
2) Inter-generational: which encompasses all injustice and in theory,

ensures that the present distribution of entitlements in such a way if only the principles of justice in acquisition and transfer had been followed.81 Litan claims that personal grievance must be proven in cases of rectification.82 Therefore, it is harder to pursue an intergenerational claim, because it is harder to prove a personal link between alleged injustices and the welfare of the claimant.83 Furthermore, he also states that if rectification already occurred during the lifetime of the violated party, then the claims of his descendants for welfare would be groundless.84

80

Litan, p.234 Litan. Litan. Litan. Litan.

81

82

83

84

41

In Nozicks minimal state, rectification applies only to present injustices and only for a few past injustices where plaintiffs can sustain their burdens of proof.85 In practice, though, rectification would be limited exclusively to actions concerning present injustice. Distributions of inherited entitlements in each

generation are largely untouched. 86 Although intergenerational rectification is harder because past injustices are more likely to present imperfect information about the past and thus, would lead to mistakes, it is still possible. Litan lists four requirements, if provided, would give ground to an intergenerational rectification claim, namely: 1. Those instances in which the principle of justice in acquisition is violated, the parties committing such violations, the victims and the amount of compensation owed. 2. Those instances in which the principle of justice in transfer is violated, the parties committing such violations, the victims and the amount of compensation owed. 3. The change in property distribution at the time one generates by the different capital distribution following compensation patterns.
4. The alteration of inheritance patterns in all subsequent generations

induced by compensation payments.87


85

Litan, p.235 Litan, p.236 Litan, p.238

86

87

42

All these are necessary to prove a link between an intergenerational rectification claimant and the injustice, as rectification requires such things first and foremost. Providing accurate information on all four requirements is a

gargantuan task.88 Litan says, that intergenerational rectification, when applied strictly, tends to wipe the slate clean at arbitrary points of time for the sake of convenience.89 What this means is that sweeping changes would be made arbitrarily. For example, whenever the state wills it, rectification is done to compensate descendants of victims of past injustices. The changes that will be made by rectifying the injustices made would serve more the sake of convenience, rather than stay true to the nature of rectification. However, this is usually not the case. Instead, intergenerational rectification would:
Require an inquiry only into those injustices that occurred in the original acquisition in the beginning of time and the points in history thereafter when previously unowned land and property were

appropriated.90

If the injustices were significant, then there would be a difference in the distribution in subsequent generations when the idea of compensation is involved. Litan says that there would be a difference had compensation been done for violations that occurred. Furthermore, he adds that historical differences between time one and the present day would have little significance for the

88

Litan. Litan. Litan.

89

90

43

present-day rectifier, since history would have been different during the long interim period.91 Because of the inquiry into in some beginning point in history poses problems regarding information, Nozick offers a second-best solution which would employ the best estimate of subjunctive information on what would have occurred but for the injustices92 This means his rectification would try to estimate what the conditions would have been, if injustices did not occur, and that would be the target goal of the rectification. However, this poses an interesting

question as to whether Nozick did indeed set a precedent for a pattern-based system of justice. Did Nozick, with this claim regarding estimating whatever best estimate, just call for a scenario wherein peoples property would be redistributed as compensation for perceived injustices made during past periods in order to attain the said goal? It is highly unlikely. Litan claims that:
A strong tenet of Nozicks theory is that it is designed not to sacrifice the individual on the altar of social welfare. Indeed, to speak of social welfare apart from the welfare of the individual citizens is in Nozicks view, misplaced. Thus, a rectification procedure which inherently commits mistakes arguably violates the rights of the victims of mistakes by unjustly taking their property for the purpose of compensating others.93
91

Litan. Litan, p.239 Litan.

92

93

44

Litan claims that the idea of rectification as something equivalent to a distributive/patterned form of justice is a misreading of Nozicks intentions. 94 He believes that in Nozicks theory of rectification, it may be true that some may be treated unjustly; individual rights are not sacrificed for the common welfare, but are being traded for the rights of others. 95 What Nozick means by this is

surprisingly simple. It is clear that his view of rectification is not intended to redistribute rights and property for the purpose of a common good, but rather to balance the imbalances caused by previous injustices. His intention was only to compensate the previous injustice through compensation. With regards to intergenerational rectification, Litan claims that because of Nozicks belief that no man is more important than the other, an intergenerational rectification is legitimate if and only if the number of those receiving just treatment outweighs the number receiving unjust treatment. As he puts it:
Rectify if and only if the number of those whose property allocations are made more just by the rectification procedure exceeds the number whose property allocations were made more unjust. 96

However, one must be careful not to interpret this passage as a greenlight from Nozick to enact social welfare programs. As it is clearly stated that (intergenerational) rectification is only done for the purpose of compensating an injustice, the notion that social welfare programs should be entertained only if
94

Litan. Litan Litan, p.240

95

96

45

these are done for the same purpose, and not for the sake of the common good, and more importantly, if the claimants to welfare benefits would prove beyond doubt their links to the injustice they claim to correct. Without it, any social welfare program violates an individuals right to his property and could thus be considered as theft.

Criticisms of Nozicks theory of justice as entitlement Some thinkers believe that Nozicks theory of Justice as Entitlement leads to a situation wherein some people would use voluntary means to gain power over others; thus threatening liberty. G.A. Cohen, in the article, Robert Nozick and Wilt Chamberlain, How Patterns Preserve Lliberty discusses the idea of ones absolute right to what was voluntarily transacted to him, and criticizes Nozicks view that any transaction that was undertaken voluntary is just, regardless of circumstances. Like Nozick, he also uses the example of Wilt Chamberlain to explain his criticism towards the former. He claims:
the payments Wilt Chamberlain receives from other people, although voluntarily, thus just, put him in a special position of power in what previously an egalitarian society. 97

What he adds to the transaction is the relative standing of people to each other. While Nozick ignores this aspect, Cohen points out that only looking at how a transfer is carried out would not reveal the real picture. He also looked at
97

Cohen, p.11

46

how transactions increase or decrease the overall value of an individual relative to his population, and based his criticism on how the disparities between these values pose a threat to liberty itself. Cohen contests Nozicks claims that the legitimate shares of third parties (people who are part of society, but are not involved in a particular transaction) remain unchanged are not true. He believes that the effective shares of an individual also depend on what others have. An individual may have the same amount of shares, but his value varies depending on what others have. He may be a rich man in a poor society, or vice versa. Cohen claims that more equality in shares, more equality in power.
98

Cohen thought that since Nozick forbids any act which restricts freedom, he would defend certain acts of freedom that would lead to totalitarianism. 99 It is obvious that he was referring to the actions of people who amass a significantly greater amount of standing through voluntary (and thus just) means. In Nozicks concept of side-constraints, it is made clear that we may never limit mans freedom to enhance/maximize the welfare of many others. However, Cohen

attacks this idea According to him, Nozicks defense of Side-constraints, which rejects he idea of sacrificing the individual, on the grounds that a social entity does not exist is unclear about whether it is arguing against one who puts

98

Cohen, p.12 Cohen, p.16

99

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redistribution across lives on par with sacrificing something for his own greater benefit or for the impermissibility of redistribution. 100 In any case, Cohen tackles both possible intentions to Nozicks defense of the Side-constraints. First, if Nozick argued for the first, then to him, his answer is acceptable, but the Side-constraints are unjustified 101, while if Nozick also argues for the second, then Cohen claims that redistributors do not have to believe in

social entities, and since side-constraints are unjustified, then there is no need to apologize for being willing to restrict freedom in order to maximize it. 102 In effect, Cohen bypasses the idea of side-constraints by claiming it as unjustified, and because of the lack of Side-Constraints, he frees the redistributor from the obstacle that prevents him from interfering with the holdings of individuals, supposedly in order to keep people equal and thus free. What this

implies is not that hard to get. What Cohen wants is to find a way past the sideconstraints, since for him; these exist to help certain people achieve power over others through voluntary means. He believes that man holding power of his fellow man threatens liberty itself. As such, for him, to ensure that people remain free, there must be interference to ensure that their shares do not accumulate a large disparity. distribution. Such interference is done through patterned systems of

100

Cohen,p.17 Cohen, Cohen,p.18

101

102

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However, Cohen, even with his justification of interfering with patterned distribution to ensure liberty does not provide a moral justification for taking away an individuals rights to property to achieve certain good. He fails to take into account that voluntary transactions themselves are exercises of liberty. His intentions instead arrive at a paradox. Does one restrict the exercise of liberty in order to preserve it? It obviously does not. Furthermore, the idea of restricting

this exercise of liberty is counter-productive to the very liberty Cohen wants to preserve. Nozick himself says that in a truly free society, an individual can sell his rights to the market, even his right to freedom. 103 He believes that what is essential is free choice. 104 In short, a truly free society enables any individual to sell himself to slavery as long as it is voluntary. Cohens defense of interfering with this exercise of liberty to preserve it is the one that is groundless and unjustified, because his idea of patterns as preserving liberty actually restricts what an individual can do not to others, but to his own alienable rights. In order for it to preserve liberty, then Cohens intentions should preserve an individuals right to sell his right to freedom. However, his patterned theories of distribution do not provide that option. Other thinkers believe that historical principles of distribution also fall under a pattern. Publin B. Nayak, in the article, Nozicks entitlement theory and distributive justice, states that Nozicks theory of Justice as entitlement is also

103

Andrew, Edward. Inalienable Right, Alienable Property, and freedom of choice: Locke, Nozick and Marx on the alienability of labor. Canadian Journal of Political Science Vol.18 No.3 (September 1985) p.536
104

Andrew.

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based on a pattern, albeit of a different nature than most other patterned systems of distribution. Nayak claims that:
For Nozicks Entitlement theory to work, there has got to be a starting point of ownership, but even at that point, there has got to be some ground rule or rules that would govern the pattern of property ownership.105

This means that even in the beginning, the distribution of different properties to different people is already patterned. There are trends as to which property went goes to whom. Nayak claims that any worthwhile patterned theory of distribution would not be rigid about a particular static situation, since:
A moments reflection will convince us that in a private ownership economy, any productive activity would alter any pre-assigned distribution.106

Nayak believes that because of the nature of private ownership, the ones who control the patterns are the individuals. The pattern is manifested in the manner they transact and distribute property amongst themselves. However, Nayak does not believe agree with what Nozick meant by patterned theories of distribution, as he thinks that patterned theories of distribution are not at all concerned with preserving a particular distribution. What Nayak meant by pattern is simply the specific order upon which property is distributed by the individuals amongst themselves. This pattern may vary from time to time, and does not try
105

Nayak, PE-4 Nayak, PE-5

106

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to distribute property in any specific order. The most important difference is that Nayaks pattern is determined through voluntary transactions, and does not serve any end. Thus, he says:
A pattern or a particular configuration of holdings is to be distinguished from a patterned theory of distribution; the latter is nothing but an end-state theory of distribution, which is not necessarily a single pattern107

Nayak denies that a pattern must try to preserve a specific order. For him, there is nothing sacrosanct about a particular holding pattern, and that it may be readily abandoned in favor of another pattern. 108 As stated above, he

differentiates his idea of pattern and the pattern of Nozick, which he dismisses as an end-state theory;109 thereby, erasing the distinction between historical and end-state principles of distribution, in the sense that one is considered patterned and one is not. Because his idea of pattern is a broader and not directed toward any end, he claims that liberty may upset a specific pattern of distribution but not a patterned theory of distribution. He believes that even those transactions

occurring under the category of a historical principle of justice have their own patterns. Therefore, one cannot say that liberty upsets patterns, since liberty also makes patterns. Because even the historical principle of justice creates its own patterns of distribution, Nayak says that since we cannot escape patterns:

107

Nayak, PE-6 Nayak. Nayak.

108

109

51 If we are to be in the realm of distributing goods, then we have no choice but to resort to periodic patterning, with due allowances made for history, for the sake of efficiency. 110

Once again, the pattern Nayak refers to is the current order of which property is distributed by individuals among themselves. When we make transactions, then we become part of this pattern. Especially in cases wherein we try to improve our positions through transactions, we submit to the pattern that all of us adopt for the sake of efficiency. Thomas R. De Gregori, in the article, Robert Nozick and the Question of Economic Justice, claims that there are problems with Nozicks principle of rectification. According to him:
The problem is that once a society is operating on other the principles of entitlement, there is no way to correct: the injustice except by starting over, which is clearly impossible.111

De Gregori thinks since starting over is cannot be done, the closest proxy to starting over is to create conditions for equality, 112 so that the disadvantaged be given assistance in acquiring the social endowments of education, healthcare, etc,113 and then reverting back to Nozicks principles of justice in acquisition and transfer. He thinks that Nozick might see this as going too far, to the extent that
110

Nayak, PE-8 De Gregori, p.22 De Gregori De Gregori

111

112

113

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socialism becomes a punishment for sins. 114 However, Nozick also accepts that past injustices may be so great, that it would necessitate the establishment of a more-than-minimal state in order to rectify them. This more-than-minimal state would then redistribute the wealth and perform a more extensive role than simply protecting individual rights.115 De Gregori says that it is impossible to connect Nozicks theory of entitlement as justice with an extensive state. The two ideas are complete opposites, and would thus conflict. This is the problem. On one hand, the

entitlement theory depends on the individual, voluntary transactions, and on the other, an extensive state is redistributive in nature. How does one reconcile a principle that argues that man has a right to a property only if he acquired it through voluntary means with a principle which espouses violating the same right to property in order to arrive at a state of equality, and more importantly, how does the former arise from the latter, or is the transition from a temporary redistributionary situation back to Justice as entitlement possible at all? 116 In short, De Gregori points out a defect in Nozicks principle: that his principle of justice as entitlement must give way to some other principle of justice to rectify injustices committed when the former was in effect. In response to the first part of De Gregoris critique of Nozick, it should be noted that even in his Principle of Rectification, Nozick does not argue for any
114

De Gregori. De Gregori. De Gregori.

115

116

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rectification policy aimed at attaining conditions of equality. As stated earlier in this chapter, the purpose of rectification for Nozick is only to correct the injustice brought about by the violation of his principles of just acquisition and transfer, and to compensate the victim. There is no mention of improving the society through welfare disguised as attaining a condition of equality, and the idea of giving assistance to the disadvantaged may only be done if: 1) The recipients of this policy are direct victims of the injustice committed (which necessitated rectification in the first place); or 2) If the recipients are not direct victims, a personal link to the injustice. If neither condition were satisfied, then such policies are out of the question. With regards to the second part of his critique of Nozick, it can be said that while it is true that in rectification, the current order of holdings might be altered to correct previous injustices, this does not equate to the establishment of a more extensive state which uses a principle of justice aside from entitlement. Rectification is an important part of Nozicks theory of justice as entitlement; it is just that the apparent redistributive nature of rectification is often confused as a deviation from Nozicks principle of justice as entitlement. In reality, the

apparent redistributive and extensive state does not exist. What really happens is principle of rectification taking effect. Since rectification is one way of

protecting individual rights against violation through unjust or involuntary transfer, the principle of justice as entitlement stays in effect, unchanged. It is still the minimal state that is prevailing in that situation. Therefore, there is no shift from

54

a minimal to an extensive state or from justice as entitlement to any other principle of justice.

55

Chapter 4

The intended purpose of the Social Security System Section 2 of Republic Act 8282 or the Social Security Act of 1997 states that:
It is the policy of the Republic of the Philippines to establish, develop, promote and perfect a sound and viable tax-exempt social security service suitable to the needs of the people throughout the Philippines which shall promote social justice and provide

meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death, and other contingencies resulting in loss of income or financial burden. Towards this end, the State shall endeavor to extend social security protection to workers and their beneficiaries. 117

It is clear in this passage that the Social Security System is created to protect the welfare of the people against unfortunate events resulting in sickness, death and loss of income. It is also stated that the provision of that protection shall be undertaken by the state, meaning the state would burden the necessary tasks to meet the aims of Republic Act 8282.

117

Chan Robles and Associates Law Firm. The Philippine Social Security Act of 1997. 2 March 2010, http://www.chanrobles.com/legal4sss.htm

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Such purpose would go against the role of the state as defined in Nozicks discussion of the Minimal State. As stated in the earlier chapters, the only

purpose of the state is to provide protection from violations against individual rights. The protection of ones welfare is the task of individual, as the minimal state is not concerned with looking after the welfare of its citizens. In an earlier example that explained why it is the function of the state to prevent murders, but not to prevent sick people dying from lack of medical care, it was made very clear that protecting people against murder is a valid state function because the act of murder is a violation of an individual right. If left unchecked, it would lead to the violation of the rights of other individuals, while simply leaving some sick person to die from lack of medical care does not in itself propagate more rights violations and would thus render state protection of individual rights unnecessary. Therefore, the act of providing a welfare service for such ends is not a concern of the state. Individuals are responsible for their own welfare.

Operation and Powers of the Social Security System The Social Security System has the power to supersede private property rights for the sake of national interest. As stated in Section 4 of Republic Act 8282, the Social Security System can:

57 acquire and dispose of property, real or personal, which may be necessary or expedient for the attainment of the purposes of this Act.118

Furthermore, it can:
acquire, receive, or hold, by way of purchase, expropriation or otherwise, public or private property for the purpose of undertaking housing projects preferably for the benefit of low-income members and for the maintenance of hospitals and institutions for the sick, aged and disabled, as well as schools for the members and their immediate families.119

Republic Act 8282 authorizes the Social Security System to interfere with an individuals absolute right to his property. By giving it the power to acquire by expropriation any private property, as long as it serves the interests of the state, and would benefit the disadvantaged, the Social Security System comes dangerously close to being a redistributive social program, and this would conflict directly with Nozicks idea of Justice as entitlement. Before the manner in which the Social Security System comes contrary to Nozicks idea of Justice as entitlement is discussed further, it would be helpful to also find out how the Social Security System operates, as further discussion would provide more detail as to how the idea of Justice as entitlement and the nature of the Social Security System contradict. According to Section 9 and 9-A
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of Republic Act 8282, membership in the Social Security System is compulsory for employees and self-employed persons, save for a select group comprising of employees earning less than one thousand pesos, employees working abroad and spouses. In short, every able bodied person in the workforce, save for special cases is required to participate in the Social Security System and thus, contribute a part of his income to it, as stated in Sections 18, 19 and 19-A of Republic Act 8282. There is sufficient reason to state that the Social Security System violates Nozicks principle of Justice as entitlement. First, given its power to take over private property to benefit the disadvantaged, the Social Security System violates Nozicks principles of just acquisition and transfer, which clearly states that one has property rights only to properties acquired through voluntary transaction. The mere idea of an expropriated property, acquired through the coercion of the state means that it did not undergo a voluntary transaction. Hence, there is a violation of the original owners right to his property, and the expropriator, in this case the state holds no right over the property it took from the individual. To put it simply, the Social Security System is state-sanctioned theft in action. The idea of using property unjustly taken to benefit a select group of people demonstrates the idea of a patterned principle of distribution, and as such, goes against Nozicks historical principle. By taking property away from an individual and giving it to another individual/ or a group, for a definite goal, the state acts as a redistributor, The state engages in a patterned theory of distribution; thus, denying an individuals right to use or dispose of his own

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property to make voluntary transactions and interfering with the voluntary transfer of property from one to another. What essentially happened is that the state made a claim towards an individuals property without answering the question What gave it the right to make such a claim? Because this inquiry is left unaccounted for, the very basis of a states claim to a property it had redistributed is questionable. This means what the Social Security is doing would result in actions with questionable foundations. If a property that was not acquired by the state through a voluntary transfer from an individual is redistributed to benefit the so-called have nots, the states basis for redistribution would be questionable. Since the state cannot possibly have any rightful claim to anything it did not acquire through voluntary means, then it does not have the power to take any property away from an individual and give it to another, regardless of reason. What the Social Security System does therefore, is an abuse of state power. Furthermore, the Social Security System not only violates an individuals right to his property, it also enslaves him. By forcing a member of the workforce to become a member of the said program and contribute to it, regardless of consent, the state forcefully appropriates not only the fruit of ones labor, but also his time, because the individual put in a certain amount of time in to acquire the said income. Since the Social Security System does not operate according to the Principle of compensation, a member of the Social Security System is not compensated for the time and property taken away by the state. In effect, an individual is reduced to being a slave of the system, forced to perform unpaid

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labor through the collection of a portion of his income, and never compensated for the things that are taken from him. One of the intended purposes of the Social Security System is the idea of Social Justice.120 It is ironic that Social Justice, if pursued through measures such as the ones stated above would not be justice, but injustice. Social Justice is never achieved through the violation of individuals right to his property. However, proponents of the Social Security System would provide past injustices committed by one class against another to justify the redistributive nature of the Social Security System. The problem with this justification is that it would conflict with Nozicks Principle of Rectification, which states that property may be taken from one individual and be given to another ONLY for the purpose of rectifying injustices committed by the specific individual to the specific victim. It is clearly stated in the Principle of rectification that rectification can only occur if 1) The victim or recipient is one and the same, or 2) if not, then there must be a proven connection between the individual and the injustice (i.e. a descendant of a victim of injustice which was not rectified during the latters lifetime). The idea of the Social Security System as Social Justice would contradict with Nozicks Principle of Rectification on the basis that it does not distinguish who exactly are the parties involved in a specific instance of injustice before redistributing property. The Social Security System sacrifices individual rights for the common welfare, something which the Principle of Rectification is not about. Even if it is said that the enactment of the Social Security System benefits more people than the

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system treats unjustly, we cannot say that it is an acceptable state function using Nozicks Principle of Rectification, simply because its intention is not to rectify specific injustices and compensate specific victims. The Social Security System fails to provide Social justice because it violates individual rights to property, and because it is not aimed to rectify anything or correct past injustices, but simply to provide the so-called disadvantaged with benefits even though no legitimate claim by these people to such benefits exists. We can conclude that the Social Security System is a state program that is beyond the role of the state, as determined by Nozicks idea of Minimal State. It also enacts an end-state system of distribution that neither recognizes nor respects an individuals sole right to his property, as stated in Nozicks theory of justice as entitlement. The Social Security System does not provide Social

Justice, but instead propagates injustice against the individual for the sake of the common good.

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Chapter 5

Conclusion and Recommendations We can now conclude that the Social Security System not only goes beyond the role of the state, as defined by Nozicks idea of the Minimal State. It also operates in a manner that violates individual rights to property. The Social Security System also violates Nozicks theory of Justice as entitlement. It is a welfare program operating under end-state/distributive principles of justice and thus, interferes with an individuals right to make transactions with other individuals to dispose of/acquire property through consensual means. The Social Security System also enslaves the individual; it makes him do forced, unpaid labor for the benefit of the disadvantaged. It sacrifices the individual to the socalled common good, and because of this we can also say that the Social Security System does not treat an individual as an end unto himself, but rather as a means to an end, much like an expendable machine-part. From the

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explanation provided in the preceding chapters, we can say that the Social Security System is a state-operated tool for the purposes of theft, slavery and dehumanization. Unlike its name and intended purpose, the Social Security

System provides neither justice nor security to society. Rather, it promotes the subordination of individual rights to state interests, and takes away mans assurance that only he and he alone has the right to his possessions. Because of the conclusions arrived at, the only real solution to this atrocity is to immediately repeal Republic Act 8282, and leave the welfare of individuals to individuals themselves. Since the states role is only to protect individual rights against aggression, not shouldering the burden of looking after the citizens welfare is a step towards the right direction. Moreover, the cessation of such services would not violate individual rights anyway since no persons rights are violated by leaving an individual to die from lack of welfare. However, a problem might arise among those who had already contributed to the Social Security System if it ceases operations. This may be remedied by Nozicks Principle of Rectification. Since the Social Security System is a program of injustice, then its collections are acts of injustice as well. This fact gives those who had already contributed to the Social Security System the right to demand compensation through the Principle of Rectification. Because such injustice is committed by the state, then state assets should be utilized as compensation for the victims of the Social Security System.

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Robert Nozicks ideas about the minimal state and justice as entitlement can be applied not only issues concerning public welfare systems. It can also be applied to the issue of state-ownership of industries or issues regarding land reform. Not only that, Nozicks political philosophy about the role of the state also applies to a very wide range of political issues, ranging from things such as national defense and economy to matters of public morals, such as the legalization of recreational drugs, abortion and divorce. Meanwhile, Nozicks

ideas about Justice as entitlement would also find application in issues such as the E-Vat, or the discounts given to old people. In short, Nozicks political

philosophy can tackle and provide so many alternative ideas about current issues affecting each individual. His ideas are a great addition to the diversity of

viewpoints currently existing in local political discourse.