NATIONAL LAW

UNIVERSITY, JODHPUR

Rawls v. Nozick
CONCEPT OF JUSTICE

(Term paper towards the fulfilment of the Project in the subject of Jurisprudence - II)

SUBMITTED BY: SUBMITTED TO:

SUVIGYA TRIPATHI S HYAM KRISHAN
KAUSHIK
UG SEMESTER IV ASSOCIATE DEAN
B.A, LL.B. (HONS.) N ATIONAL LAW
UNIVERSITY,
SECTION B JODHPUR.
ROLL NO.: 1367

WORD COUNT: 2552

WINTER SESSION
(JANUARY - MAY, 2017)

TABLE OF CONTENTS

TABLE OF CONTENTS
INTRODUCTION

ANALYSISING BOTH THE PERSPECTIVES

1. RAWLS: JUSTICE AND THE SOCIAL CONTRACT

2. NOZICK: LIBERTARIAN THEORY OF JUSTICE.

DIFFEFRENCES AND SIMILARITIES

1. DIFFERENCES
2. SIMILARITIES.

CONCLUSION
 INTRODUCTION

The economic framework that each society has its laws, institutions, policies, etc. results in
different distributions of economic benefits and burdens across members of the society. These
economic frameworks are the result of human political processes and they constantly change
both across societies and within societies over time. The structure of these frameworks is
important because the economic distributions resulting from them fundamentally affect people's
lives. Arguments about which frameworks and/or resulting distributions are morally preferable
constitute the topic of distributive justice. Principles of distributive justice are therefore best
thought of as providing moral guidance for the political processes and structures that affect the
distribution of economic benefits and burdens in societies.

This entry is structured in the following way. After outlining the scope of the entry and the role
of distributive principles, the first relatively simple principle of distributive justice examined is
Strict Egalitarianism, which calls for the allocation of equal material goods to all members of
society. John Rawls' alternative distributive principle, which he calls the Difference Principle, is
examined next.

Advocates of welfare-based principles (of which utilitarianism is the most famous) do not
believe the primary distributive concern should be material goods and services. They argue that
material goods and services have no intrinsic value but are valuable only in so far as they
increase welfare. Hence, they argue, distributive principles should be designed and assessed
according to how they affect welfare, either its maximization or distribution. Advocates of
libertarian principles, by contrast to each of the principles so far mentioned, generally criticize
any distributive ideal that requires the pursuit of economic patterns, such as maximization or
equality of welfare or of material goods. They argue that the pursuit of such patterns conflicts
with the more important moral demands of liberty or self-ownership.

In the original position, one might say, the appropriate initial status quo, and thus the
fundamental agreement reached in it are fair. Its completely nature and god who decides

1
whether I am born poor or rich. It is entirely natures doing. Nature is neither just and unjust.
This unequal life is neither just nor unjust.

ANALYSISING BOTH THE PERSPECTIVES

A. RAWLS: JUSTICE AND THE SOCIAL CONTRACT

John Rawls theory of distributive justice (A Theory of Justice) is based on the idea that society is
a system of cooperation for mutual advantage between individuals. As such, it is marked by both
conflicts between differing individual interests and an identity of shared interests. Principles of
justice should define the appropriate distribution of the benefits and burdens of social co-
operation.

Justice is the most important political value and applies to the basic institutions of society the
political constitution and the institutions that regulate the market, property, family, freedom, and
so on because it is intimately connected to what society is and what it is for. If society is a
matter of cooperation between equals for mutual advantage, the conditions for this cooperation
need to be defended and any inequalities in social positions must be justified. And so the
principles of justice, Rawls thinks, must be the principles that free and rational persons
concerned to further their own interests would accept in an initial position of equality as
defining the fundamental terms of their association.

Rawls theory is based on his view that society is a cooperative pursuit of what is in our
individual interest, which can be identified prior to our existence in society. Both Conservatism
and Marxism would reject this liberal individualism. It rules out any theory that sees social bonds
as intrinsically good, rather than a means to our individual advantage. It assumes that we are
fundamentally separate, rather than naturally social. It understands justice as arising out of
conflicting claims between individuals who are disinterested in each others welfare.

Second, in his defence of the usefulness of the original position, Rawls assumes that you and I
can meaningfully exist as ourselves behind the veil of ignorance or the original position is
useless in discerning justice for us. A different theory of the self, known as communitarianism,
argues that our individual identities are defined by our values, what gives meaning to our lives.
We cannot strip ourselves of such ideas in a thought experiment; nor would the results of the
thought experiment be meaningful for us. Furthermore, our values and conception of what is
good are derived from other people, and held in common with them.

Rawls argues that the people in the original position will discuss which principles of justice are
best before voting on them, and the best principles worth having will reach a reflective
equilibriumthe most intuitive principles will be favored and incompatible less intuitive
principles will have to be rejected in order to maintain coherence. He argues that two intuitive
principles of justice in particular will reach reflective equilibrium:

Each person is to have an equal right to the most extensive total system of equal basic
liberties compatible with a similar system of liberty for all.

Social and economic inequalities are to satisfy two conditions: first, they are to be
attached to positions and offices open to all under conditions of fair equality of
opportunity; and second, they are to be the greatest expected benefit of the least
advantaged members of society.

Rawls says that the first principle has priority over the second, at least for societies that have
attained a moderate level of affluence. The liberties Rawls has in mind are negative rights, like
the freedom of thought.

B. NOZICK: LIBERTARIAN THEORY OF JUSTICE.

The inception of Nozicks theory of justice is based on the assumption - I own myself.

In his book, Anarchy, State and Utopia, there is a libertarian response to Rawls that only a
minimal state devoted to the enforcement the contract and protecting its people against crimes
like assault, robbery and fraud can be justified. The fundamental philosophical question in his
theory is not how the government should be organised but whether there should be a state at
all. Certain legislation which redistribute wealth are justified. He also contends that taxation
legislation is violation of our rights.

How he explains this:

I OWN MYSELF TIME LABOUR FRUIT OF MY LABOUR.

If I assume that I own myself then it would be clearly logical to assume that I own my time.
Everything I do in my time are my activity. Some of these activities produce fruit(wealth/profit).
If I own myself then I also own the fruit if my labour. Now, under the current taxation regime a
part of this fruit is given to the state. Paying taxes is compulsory for all citizens. The time I
invested in accumulating the wealth, which I gave to the state as tax, is the amount of time I
worked for the state involuntarily. Hence, for that time I was the slave of the state. Therefore,
taxation is forced labour and slavery.

No matter how noble those claims of the state are, the actual impact on me is that I am a slave for
that state. State says we need your money only to make roads. State says we need your money
for schools and hospital for those who otherwise cannot afford these luxuries. Some people are
neither working nor contributing, for them it is beneficial.

Some utilitarians are libertarians because they think libertarianism will promote goodness best,
but Robert Nozick developed his own theory of justice that finds utilitarianism completely
irrelevant to justice, which was described in Anarchy, State, and Utopia. Nozick argues that we
have Lockean rights by our very nature prior to any political institutions, such as the right to
property. For Nozick these rights are absolute and cant be violated for any reasonexcept
perhaps if the only alternative action would directly violate even more rights.

Nozick thinks that we have property rights to keep our possessions as long as they were attained
fairlywithout violating other peoples rights, harming others, or defrauding them. The worlds
natural resources are all up for grabs. They are the property of anyone who takes them. This
conception of property rights are described by three principles of justice:

A person who acquires a holding in accordance with the principle of justice in acquisition
is entitled to that holding.

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.

No one is entitled to a holding except by (repeated) applications of either if the two above
mentioned points.
Nozicks view seems to imply that taxation is a form of theft because it violates our property
rights. People are coerced by governments to give up their property when they are being taxed.
No one can take away our legitimately attained property without permission. Any public service
funded by taxation would then also be illegitimate, such as public education or food for the poor.

DIFFEFRENCES AND SIMILARITIES

1. DIFFERENCES
The primary difference between the two is in the treatment of the legitimacy of governmental
redistribution of wealth. In place of Rawlss difference principle, Nozick espouses an
entitlement theory of justice, according to which individual holdings of various social and
economic goods are justified only if they derive from just acquisitions or (voluntary) transfers.
No safety nets allowed (acquisitions from social programs are not just because they are funded
through the involuntary transfer of wealth via taxation and are therefore taboo). No
accommodations for free-riders should be made. Problem: Nozick never spells out the criteria of
just acquisition. Rawls says that what you actually earn, you cannot exclusively say belongs to
you. He is trying to build a structure and that requires neutralizing the natural distribution. Rawls
challenges Nozicks defence of property rights. Much of what people own is the result of
peoples social position and their natural talents, both of which are morally arbitrary. Therefore,
any inequalities in ownership are unjust. Furthermore, what rights people have to property cant
be decided before deciding on the principles of justice. People dont have a right to the earnings
their talents bring them, only to that share which they keep according to the principles of
distributive justice.

Nozick critique of Rawlss rationale for his difference principle: its implausible to claim that
merely because all members of a society benefit from social cooperation, the less-advantaged
ones are automatically entitled to a share in the earnings of their more successful peers. Nozick
responds that each persons talents and abilities belong to them. They therefore have a right to
keep (or do whatever they want with) whatever these talents and abilities gain for them. To
forcibly redistribute what they earn is to fail to respect their autonomy. Nozicks theory is very
controversial, because it could justify very unequal distributions of property that may not respect
what people deserve, nor what they need, nor give any kind of priority to people who are worse
off. If he is right, redistribution cannot be justified except to rectify a previous injustice.

B. SIMILARITIES.
Both theories jump off with a sweeping statement of the primacy of justice Nozick more or
less retained Rawlss first principle (liberty) while rejecting the second (difference).

Regarding governmental redistribution of wealth, Nozick seems to admit that his entitlement
theory is insufficient to refute demands for a redistributionist state; surely some collective
holdings were acquired via some original act of unjust conquest, right? In response Nozick
agrees that a Rawls-like difference principle is morally acceptable after all, what he terms
rectification, on the premise that those currently least-well-off have the highest probability of
being descended from previous victims of injustice.

Both shared a view of political philosophy as an exercise in the production of abstract theories,
with little regard for the practical grounding of justice in human nature (i.e., of conformity with
the likely demands of actual human beings). Therefore, both theories rate a societys success by
how closely its laws and procedures adhere to the model rather than whether those laws produce
morally maximized outcomes. Both clearly followed Immanuel Kants dictum, let justice
triumph, even if the world perishes by it.

CONCLUSION
Its possible that none of these theories of justice are true, but they have been the result of
decades of philosophy. They could be the best philosophers have to offer at this time and they are
certainly important to understand the history of the historical debate of justice. Its possible that
no theory of justice needs to be endorsed and we could reason about justice using intuitive
assumptions rather than a systematic attempt to capture justice in its entirety. That doesnt imply
that justice is just a matter of opinion or meaningless. The fact that we are ignorant about justice
neither implies that all beliefs concerning justice are equal nor does it imply that we know
absolutely nothing about it.
AUTHORS OPINION

The author affirms with the John Rawls concept of justice. More specifically, Nozicks
arguments against Rawls are seriously weakened by a Procrustean attempt to portray Rawlss
principle of distributive justice as a non-historical or end-result principle. Rawls does not
maintain that the justice of a distribution can be determined independently of how it was
produced. He believes that its justice depends on the justice of the instructions, including legal
institutions defining entitlement, which were involved in its production. These are assessed only
partly in basis of their tendency to promote a certain distributive end-state.

Nozicks theory is very controversial, because it could justify very unequal distributions of
property that may not respect what people deserve, nor what they need, nor give any kind of
priority to people who are worse off. If he is right, redistribution cannot be justified except to
rectify a previous injustice. Rawls challenges Nozicks defence of property rights. Much of what
people own is the result of peoples social position and their natural talents, both of which are
morally arbitrary. Therefore, any inequalities in ownership are unjust. Furthermore, what rights
people have to property cant be decided before deciding on the principles of justice. People
dont have a right to the earnings their talents bring them, only to that share which they keep
according to the principles of distributive justice. Nozick responds that each persons talents and
abilities belong to them. They therefore have a right to keep (or do whatever they want with)
whatever these talents and abilities gain for them. To forcibly redistribute what they earn is to fail
to respect their autonomy. But even if people own themselves, we can argue that this doesnt
entail that we have the right to do whatever we want with all of our property. A reinterpretation
of justice in transfer could place restrictions on property rights.