NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

PROJECT – INTERNATIONAL HUMANITARIAN LAW

PERSONS AND PROPERTIES AFFECTED IN AN ARMED

CONFLICT

SUBMITTED TO SUBMITTED BY:

Mrs. DEBASHREE SARKAR Surbhi Laddha

2016BALLB76
ACKNOWLEDGEMENT
 TABLE OF CONTENTS

STATEMENT OF PROBLEM
 OBJECTIVES

HYPOTHESIS

RESEARCH QUESTIONS

REVIEW OF LITERATURE

LIST OF STATUTES
 LIST OF CASES

Introduction
The American political philosopher Robert Nozick, a libertarian liberal, best known for his first
book Anarchy State and Utopia published in 1974 1. Nozick is an advocate for eighteenth century
individualism and nineteenth century capitalism. He is not an anarchist but being influenced by
the individualist-anarchist Murray Rothbard, proposes a form of radical individualism within a
state structure. To Nozick, “the minimal state is the most extensive state justified” and if the state
were to seek wider role than the narrow function of providing protection against force, theft,
fraud and enforcement of contracts then it is violating individuals rights.

Central to Nozick’s work is individuals’ rights which are evident from his audacious statement
on the preface to his book that “individuals have rights and there are things no person or group
may do to them (without violating their rights)”. Nozick, in particular, is critical of John Rawls,
arguably the most important political philosopher of the twentieth century whose book, A Theory
of Justice 2, generated more discussion and commentary than any other book of political and
social theory published since World War II. Central to Nozick’s criticism of Rawls’ theory
targets the end-result oriented methods, but the theory of redistribution, in particular. Nozick
absolutely rejects the idea of redistribution and maintains that it contradicts the idea of self-
ownership. He further stresses that redistribution makes others “a part-owner of you giving] them
a property right in you”. As an alternative to Rawls’ theory, Nozick suggests his entitlement
theory. One of the main problem with Nozick’s arguments is the “abstractness of the

1
Nozick R (1974) Anarchy Sate and Utopia. Basic Books.
2
Rawls J (1971) A Theory of Justice (Rev. edn.) Harvard University Press.
individualism they presuppose” and individualism, according to Lukes, is a “distorting lens that
satisfies the intellect while simplifying the world”. Nozick attempts to isolate people with
individualism which is contrary to the fact that “people are constituted by the societies into
which they are socialised and live”. This article will explore Nozick’s theory of justice, justice in
holdings, individual rights and the minimal state as to whether these concepts can stand as
universal theory taking into account the surrounding academic literature.

RAWLS THEORY: “JUSTICE AS FAIRNESS”

As Nozick’s Anarchy State and Utopia [1], in part, is a response to Rawls’ A Theory of Justice
[2], it is imperative to consider Rawls’ theory first before moving on to Nozick’s. Central to
Rawls’ A Theory of Justice was the idea of “justice as fairness” which sets out substantively a
version of democratic social justice. Rawls argues in favour of a more extensive state where the
government is obliged to provide citizens with access to the needs that are basic to human life
and also to look after the welfare of those who are least well off. This includes state provided
welfare education and health services funded through taxation. By “justice as fairness” Rawls
means, the set of principles that would be selected by persons in the “original position” from
behind a “veil of ignorance” to the basic structure of society 3. “According to Rawls, two
principles of justice would be selected in the original position:”

a) “Individual citizens are entitled to an equal right to the” “most extensive scheme of basic
liberties compatible with a similar scheme of liberties for others;” and

b) “Social and economic inequalities are to be arranged so they are both:

i. Reasonably expected to be to everyone’s advantage; and

ii. Attached to positions and offices open to all”.

Rawls’ proposition of justice as fairness represented from the social contract theory which he
defends as the most reasonable and preferable notion of justice. His main theme is distributive
justice: a concern with how goods and freedoms should be shared in society. To Rawls a
distribution is just “if everyone is entitled to the holding they possess under the distribution”. He
suggests that it is sometimes justified to treat people unequally where unequal treatment results
3
Byles ME (1992) Hart’s Legal Philosophy: An Examination. Springer-Science+Business Media Dordrecht.
in improvements for everyone. Therefore, it would appear from the above that Rawls is
concerned with the benefit and welfare of the society as a whole and in line with achieving this
aim taxation is a legitimate means for the government4.

MINIMAL STATE: THE ONLY JUSTIFIABLE STATE

To begin with, Nozick seeks to justify the minimal state against the individualist anarchist. He
opposes the arguments for a more extensive state and their idea of distributive justice 5. To
Nozick, the only justifiable state is the minimum state which does not violate individual’s rights
as its functions are limited to protection of individuals against force, theft, fraud and enforcement
of contracts. He sets out two requirements for a state: (i) an appropriate monopoly of force in a
given territory; and (ii) the provision of protection by the state within its geographical
boundaries.

In the minimal state when disputes arise and enforcement of law is required, Nozick
hypothetically argues, that people might form “mutual protection associations” in order to defend
themselves and to exercise their right to rectification 6. Under such an arrangement, all members
of the association are “on call” to defend and enforce the rights of other members meaning that
everyone is always “on call” and any member may call upon any other member or members for
protection. This begs the question if everyone in real world would be ready to be “on call”. One
does not have to be a cynic to dispute with this notion but a mere depiction of human nature in
any context would serve to disagree with this imaginary Good Samaritan role which is rather
unscrupulous of human nature and behavior. Nozick contends, initially there may be several
protective associations within the same geographical area. When clients from different agencies
enter into dispute and the agencies cannot agree on how to resolve the matter, they too will enter
into conflict. The result of such conflict will be that over time a natural monopoly will occur.
Eventually there will be only one protective association within a geographical area: the
“dominant protective association7”. The evolution process of the “dominant protective
association” invites criticism such as Nozick is calling for conflict rather that providing a
4
Luchli UM (1994) What Distributive Justice - The Legal Theories of Rawls and Nozick. Tilberg Foreign Law
Review 4: 169-203.
5
Scanlon T (1976) Nozick on Rights, Liberty, and Property. Philosophy and Public Affairs 6: 3-25.
6
Abramson EM (1981) Philosophization against Taxation: Why Nozick’s Challenge Fails. Arizona Law Review 23:
753.
7
Stein MS (1998) Nozick: A Utilitarian Reformulation. Northern Illinois Law Review 18: 339.
pragmatic solution. The theory also fails detail whether this dominant protective association
would be private or public entities and whether it would be charging people any fee or if it is free
of cost. Ironically, Nozick does not consider how the state comes about. He opines, self-interest
in his state of nature will ultimately give rise to the state. A critical mind would stop short of
acceding to this claim as to how self-interest could give rise to a state, if at all. Even if one were
to defer to this involuntarily for the sake of an argument, would it not lead to chaos and conflict
similar to the events from which the dominant protective association evolve albeit a much greater
magnitude of chaos and conflict would ensemble prior to the evolution of the state which Nozick
indicated.

NOZICK’s: THE ENTITLEMENT THEORY

Having disregarded the theory of distributive justice, Nozick, influenced by Locke, puts forward
his “entitlement theory” of justice. According to Nozick:

“If the world were wholly just, the following inductive definition would exhaustively cover the
subject of justice in holdings. (1) A person who acquires a holding in accordance with the
principle of justice in acquisition is entitled to that holding. (2) A person who acquires a holding
in accordance with the principle of justice in transfer, from someone else entitled to the holding,
is entitled to the holding. (3) No one is entitled to a holding except by (repeated) applications of
1 and 2”.

To put it simply a person’s holdings are just if acquired through (1) just original acquisition or
(2) just transfer or (3) through rectification of injustices in the two senses.

Justice in acquisition: “Justice in acquisition” maintains that a person who acquires a holding

justly is entitled to that holding, i.e. how things that were previously not owned by anyone can be
acquired by an individual8.

According to Nozick, the initial act of appropriation confers unlimited rights of use and
disposition. When asked how the bearers obtain their property, Nozick answers, it is a historical
process. He struggles to define in specifying precisely which of several initial methods of initial

8
Grey TC (1976) Property and Need: The Welfare State and Theories of Distributive Justice. Stanford Law Review
28: 877-902.
acquisition is to be preferred. His inclination to Locke’s labour theory of property acquisition is
evident. According to Locke, a limit had to be placed upon the amount of resource that could be
extracted from the nature by anyone, “enough and good” had to be left for others to secure.
Nozick attempts to reformulate this limit in terms of a certain welfare baseline. He, however,
fails to mention where this baseline needs to be fixed. The starting point that Locke made was
that the earth is a common property whereas Nozick attempts to explain how what is unowned
can become private property. One may strongly argue that this acquisition principle is not fitting
in this modern technological world; and it seems to justify earlier injustices or at least apply to
highly disputable methods9.

Justice in transfer: According to “justice in transfer,” a person who acquires a holding justly in

transfer from another who is entitled to that holding is entitled to that holding, i.e. how
ownership and possession of property can subsequently be transferred from one person to
another, provided that the transfer is just and the individual is entitled to the holding (purchase,
gift and so on)10. Nozick, most evidently, has failed to give an exact definition of what he
actually meant by the term “justice” in “justice in transfer”. Is one to take the general meaning of
justice or is it that a special meaning applies as far as it concerns “justice in transfer”. There may
be instances of transfer where one party believes it was a just transfer whereas the other party in
the transfer feels it was unjust on them and that they would not have conceded to the transfer had
they not been the weaker of the two parties given the increasing influence of the dominant party
to keep everyone quiet. Nozick falls far too short to provide a solution for such an instance11.

Justice in rectification: Justice in rectification involves past injustices arising from failure to

fairly apply the first two principles properly that can be put right, i.e. failure to apply principle
(a) or (b) can be rectified using this principle 12.

Even the briefest survey of human history reveals that the current distribution of property is as
much the consequence of theft and conquest as it is the product of libertarian entitlement. Nozick
explains, historical entitlement is subject to the principle of rectification which attempts to use
historical information to reproduce “what would have occurred… if injustice had not taken
9
Tversky A, Kahneman D (1986) Rational Choice and the Framing of Decisions. Journal of Business 59: S251-
S278.
10
Rakowski E (1996) Transferring Wealth Liberally. Tax Law Review 51: 419.
11
McCaffery EJ (1994) The Uneasy Case for Wealth Transfer Taxation. Yale Law Journal 104: 283-365.
12
Thomson JJ (1977) Some Ruminations on Rights. Arizona Law Review 19: 45.
place”. While many injustices can be traced, many others are buried and forgotten and hence the
principle has very limited application unless it is assumed that the least well off are most likely
to have been the victims of historical injustice. Nonetheless, an attempt to rectify past injustices
can affect ‘innocent’ owners and undermine the certainty of legal title, suggesting that claims for
rectification might be barred beyond a stipulated period of time. A commentator argues that the
rectification principle is almost ridiculous hit in Nozick’s own theory-it could lead to dictatorship
and to very end result determined societies. It may, therefore, be submitted that with its
temporary application, the rectification principle lacks the criteria to be a universal one13.

Nozick’s theory on justice in holdings attracts numerous questions such as whether the term
justice here is meant only in the legal sense or if it includes other forms of justice i.e. social
justice, economic justice among others. This begs yet another question whether the meaning of
justice remains unchanged throughout the entitlement theory and its three sub-divisions or
whether the meaning of justice is specific to every sub-heads of the entitlement theory. It would
appear from the above that Nozick may have attempted to redefine “redistribution” and replace it
with “entitlement theory,” unfortunately it has given rise to a lot of vexed questions without
adequate answers.

Rights as Trumps
Nozick, in general, contends that people are born with fundamental individual rights. These
individual rights are paramount and that there is no need for a system to achieve moral
equilibrium. He rejects all end-result theories, i.e. distributive theories such as Rawls theory of
justice. Nozick rather adopts the 18th century philosopher Immanuel Kant’s principle of
“individual inviolability” that cannot be violated as a means to achieve particular ends, meaning
the significance of each person’s possessions of self-ownership is that people should not be used
as resources or a means of achieving some end and this is exactly what Rawls proposes to do,
Nozick criticizes14. It is wrong to treat people as if they are merely of instrumental worth or to
sacrifice one person for another. He claims that the rights of others determine constrains on our
actions.

13
Epstein RA (1985) Takings: Private Property and the Power of Eminent Domain Cambridge, MA: Harvard
University Press.
14
Sen A (2009) The Idea of Justice (1stedn) Penguin.
According to Nozick, the “classical liberal” view is that the right of people to control their bodies
and actions is a property right, the right of self-ownership. He further argues for his entitlement
theory where it is permissible for people to have and hold property on however an unequal basis
provided it was acquired legitimately in the first place. Thus, if someone acquired a holding
justly, any interference with his holdings i.e. via imposition of tax, would violate his rights.
Nozick claims, a redistributive system invades that right making others “a part owner of you
giving them a property right in you”. Thus, a redistributive system institutes partial ‘ownership
by others of people and their actions and labour’. Consequently, he argues that taxation of labour
income is “on a par with forced labour 15”.

Is imposition of taxation tantamount to forced labour?

Abramson points out, Nozick’s claim demonstrates its weakness as he notes that some persons
find “absurd” the claim that “taxation from earnings of labour is on a par with forced labour…
taking the earnings of n hours is like taking n hours from the person; it is like forcing the person
to work n hours for another’s purpose [15]”. He further emphasises on the point that labour
considerations are not forced by the need to earn so that one can pay tax rather one earns and pay
whatever tax turns out to be due. Labour precedes taxation, one labours and pays tax and not the
vice versa. Thus, Nozick’s claim that taxation is on par with forced labour is dismissed. To
Elliot, Nozick’s admission is revealing and in line with that he claims that Nozick himself is
aware that his assertion is unconvincing and that “Nozick signals that he is not prepared to
unyieldingly support his theory that taxation from earnings of labour is on a par with forced
labour”.

Rawls’ versus Nozick’s distribution theories

In criticism of Rawls, Nozick argues that Rawls in his theory, “justice as fairness,” invocates a
group in his original position instead of individuals. Nozick disregards Rawls’ theory as he
thinks the latter’s theory favours the lower spectrum of the society and causes inequality in terms
of the average gains made by different people as less endowed gain more than the talented 16. He

15
Blum WJ, Kalven H (1952) The Uneasy Case for Progressive Taxation. The University of Chicago Law Review
19: 417-440.
16
Patterson R (2005) The Minimal State v The Welfare State: A Critique of the Argument between Nozick and
Rawls. Southern Cross University Law Review 9: 167-182.
states that Rawls’ original position only lets one to consider the results of distribution but not
how it came about. Rawls’ theories of redistribution or “patterned” theories as Nozick calls it, he
believes, it involves interference with individual liberties. On the contrary, Nozick proposes
distribution according to intellect and as such the more the intelligent the more he gets. Any
group or individuals that control resources and allocate shares interfere with the recipient’s lives.

As regards Nozick’s strongest of oppositions against redistribution, many philosophers and

academics are very critical of him. The very person who Nozick is influenced by, Locke,
suggests that taxes should be levied in “proportion” to the property protected by the state.
According to Adam Smith, “the subjects of every state ought to contribute towards the support of
the government… in proportion to the revenue which they subjectively enjoy under protection of
the state”. Epstein, a libertarian, endorses the idea of broad-based or comprehensive income tax
on the basis that “everything of value protected by government is subject to taxation”. In
consequence, it appears that libertarian principles can be relied upon to support all major taxes.
Then why not Nozick’s?

However, Stein argues that Nozick disregards any consideration of social utility in Anarchy State
and Utopia [1]. Stein contends Nozick’s redistribution as immensely burdensome, not providing
very great benefits and that he would object to redistribution even if it relieved enormous
suffering among the poor and imposed only the most negligible of burdens on the rich. He
further criticises Nozick pointing at his admission in the preface to Anarchy State and Utopia
that he “does not present a precise theory of the moral basis of the individual rights,” and that
Nozick does not tell the origin of these stringent rights on which he relies upon [1]. Since Nozick
is willing to find hidden elements in opposing theories, he cannot, in principle complain when
others do the same to his theory and so Nozick’s failure to mention the origin of these stringent
rights may open the door to an argument that the appeal of those rights is ultimately not based on
considerations of aggregate well-being.

It is important to recognise that taxes may be collected both to redistribute economic resources
and to finance public goods and services; this is a dual role that public finance theory has long
recognised by distinguishing between the “distribution function” and the “allocation function” of
the public sector. Nozick, therefore, is mistaken to have made redistribution the only basis to
 17
refute taxation . Christian criticises Nozick for he does not consider “alternative systems of
property rights…that would make certain persons better off than under a system of full private
ownership”. Nozick is so opposed to redistribution that a commentator questions whether Nozick
is prepared to see people starve to death and obviously so as it appears, if the only alternative is
redistribution. An argument can be put forth in the sense that Nozick reaches universal
conclusions from individual motivations without fully considering possible universal
implications and that he too easily reaches the point of arguing for absolute rights for freedom of
action and from coercion, yet with minimum safeguards for the community.

A Libertarian Argument in Favour of the Minimal State

Nozick argues that the minimal state is the only morally justifiable form of government. This
contention rests upon his understanding of the separateness of each person, the existence of
inviolable rights, and the side constraint that these rights impose on the behaviour of others.
Nozick claims that persons are rational, they are moral agents, and they have free will. In
addition, they have the ability to regulate and guide their lives in accordance with some overall
conception of their choice. Nozick states: [A person is] a being able to formulate long term plans
for its life, able to consider and decide on the basis of abstract principles or considerations it
formulates to itself and hence not merely the plaything of immediate stimuli, a being able to limit
its own behaviour in accordance with some principles or picture it has of what an appropriate life is
for itself and others and so on.18

When a person shapes her or his life in accordance with some overall plan, that person gives
4
meaning to her or his life. Persons, as such, are separate entities capable of determining the
meaning and direction of their lives. Put slightly differently, we are all separate existences
capable of leading separate lives.19 According to Nozick, the significance of each person’s
possession of self-ownership is that people should not be used as resources or as a means of
achieving some end. It is wrong, he states, to treat people as if they are merely of instrumental
6
worth, or to sacrifice one person for another.

17
Duff DG (2005) Private and Tax Policy in a Libertarian World: A Critical Review. Canadian Journal of Law and
Jurisprudence 18: 23-45.
18
Nozick R, Anarchy, State and Utopia, Blackwell, Oxford, 1974, p 49.
19
Nozick, note 3, p 29.
The separateness of each person means that each person’s body and liberty are separate and
distinct from those of others. They belong to each person and not to someone else. As such,
Nozick states, only each person has the right to decide what happens to her or his life, body,
liberty or property. Being inviolable and exhaustive, these rights are absolute.

Nozick claims that the rights of others determine the constraints on our actions. That is, a
person’s rights are not merely superficial claims that can be overridden. Rather, they are
boundaries not to be crossed without the free consent of the person whose rights they are.
Elaborating on this, Nozick writes:

That there are different individuals with separate lives and so no one may be sacrificed for
others, underlies the existence of moral side constraints, but it also leads to a libertarian side
constraint that prohibits aggression against another.

Therefore, a person cannot violate the rights of others through either interference or aggression.
Nor can a person infringe upon other people’s rights in the pursuit of some object or goal, even if
that goal is to achieve an overall minimisation of the violation of rights. 20 It is on this basis,
therefore, that Nozick rejects utilitarianism.

Nozick asserts that a person’s rights are so strong and far-reaching “they raise the question of
what, if anything, the state and its officials may do.” In Anarchy, State and Utopia Nozick
considers this issue. Is it possible, he asks, to justify the existence of a state? If so, what are the
limits on the state’s exercise of its coercive power? Alternatively, is anarchy the only available
option?

Nozick commences his treatment of these questions by stating that if having government is
superior to the most favourable state of anarchy then the existence of the ‘state’ is justified. The
best possible state of anarchy that could reasonably be hoped for is one in which people had the
freedom to do as they chose, but nevertheless restrained their actions in such a way that they
respected the rights of others. In the Lockean “state of nature”, for example, anyone can do what
he or she wants so long as it is within the bounds of the laws of nature. The laws of nature hold
that no one may harm another in health, life, liberty or possessions. They also hold that a person

20
Nozick, note 3, p 23
has a right of self-defence against those who would transgress those rights. When such
transgressions do occur, Nozick notes, individuals have a right of rectification.

Although Nozick agrees that people have a right of self-defence he considers that, as a result,
there are a number of difficulties with the Lockean “state of nature”. Nozick explains that in the
“state of nature” the understood natural law may not provide for every contingency. Given the
potential ambiguity of the natural law with regard to some circumstances, it is possible that in
judging their own cases people will give themselves the benefit of the doubt and assume they are
correct. Nozick states: “they will overestimate the amount of harm or damage they have suffered,
and passions will lead them to attempt to punish others more than proportionately and to exact
excessive compensation.” That is, in exercising their right of self-defence, people will often be
emotional and exceed the scope of such right. In turn, this will lead to further retaliation and
feuds. Without a firm means of settling such disputes, these feuds will be ongoing. On the other
hand, if people lack the power or ability to enforce their rights, they may be unable to exact
compensation when those rights are transgressed.21

How might this situation be resolved? Nozick answers that, for various reasons including
friendship or the recognition that in unity there is strength, groups of people might form “mutual
protection associations” in order to defend themselves and to exercise their right to rectification.
Under such an arrangement, all members of the association are “on call” to defend and enforce
the rights of other members. However, this means that everyone is always “on call”, and any
member may call upon any other member or members for protection. Nozick writes: “protective
associations will not want to be at the beck and call of their cantankerous or paranoid members,
not to mention those of their members who attempt, under the guise of self-defense, to use the
association to violate the rights of others.”22

Protection associations might resolve these problems through the division of labour (that is,
someone would be paid to provide protection services and others would sell it), and by adopting

21
Nozick, note 3, p 12
22
Nozick, note 3, p 12.
a procedure to determine the validity of claims. While this might go some way to resolving intra-
agency disputes, it would not provide for the difficulties involved in conflicts between
associations.23

Nozick argues that initially there may be several protective associations within the same
geographical area. When clients from different agencies enter into dispute and the agencies
cannot agree on how to resolve the matter, they too will enter into conflict. The result of such
conflict will be that over time a natural monopoly will occur. Eventually there will be only one
protective association within a geographical area: the dominant protective association.

The dominant protective association will occur because unless an oligarchy is formed (under
which all agencies within a region operate), the protective associations cannot co-exist. The
relative worth of the product offered by each agency depends on its strength. Unlike other goods
and services, the agencies compete for clients and enter into violent conflict when disputes arise
between their clients. All its customers will eventually leave an association that most often loses,
and join a stronger association. Alternatively, if agencies are stronger in different geographical
areas, a boundary will be established dividing the different areas for which the associations are
responsible.24

The dominant protective association, although similar, is not a state. A state, Nozick writes:

Claims a monopoly on deciding who may use force and when; it says that only it may decide
who may use force and under what conditions; it reserves to itself the sole right to pass on the
legitimacy and permissibility of any use of force within its boundaries and claims the right to
punish all those who violate its claimed monopoly.

Under a minimal state (the night-watchman state), all citizens receive protection. The minimal
state protects everyone against violence, theft and fraud, and it provides for the enforcement of
matters such as contracts.

In contrast, the dominant protective association does not protect everyone (since some people
may choose not to join), and it allows some scope for the private enforcement of rights. An
23
Nozick, note 3, p 16. Nozick notes that there will also be a problem with resolving disputes that arise between
members. He states that this can be resolved if associations do not provide protection against counter-retaliation
when a client privately enforces his or her rights against some other members
24
Nozick, note 3, p 16.
ultraminimal state differs from this situation only in so far as it claims a monopoly over the use
of force except that which is necessary for immediate self-defence. 25 Under both the dominant
protective association and the ultraminimal state there will be individuals who do not purchase
protection, and who reserve (and act on) their right of self-protection. As with the anarchic state
of nature these individuals, influenced by emotion, selfishness or revenge, may exceed the
decrees of natural law when exercising their right of self-protection and demand excessive
rectification. This is problematic.

It might be said that the ultra-minimal state does not face this difficulty since it claims a
monopoly over the use of force. There is, however, an inconsistency in this since if the
protection of rights is the sole concern of this type of government, it acts contrary to its
legislative function and purpose when it leaves some people’s rights unprotected. This can be
resolved if the ultraminimal state offers protection without cost to those whom it prohibits from
exercising self-defence but who wish to retain this right. In doing so, however, it becomes a
minimal state.

On account of the difficulties associated with the state of nature, Nozick claims that anarchy
naturally gives way to either a dominant protective association or ultraminimal state. In turn,
these also give rise to the minimal state. Nozick explains that this progression occurs, even
though unintended, similarly to how a pattern may be produced without having a pattern in
mind.26 On account of this (and given the fact that it provides protection for all), Nozick
concludes that the minimal state is preferable to either anarchy or the ultraminimal state.

However, having said this, is the minimal state morally legitimate? It might be argued that unless
everyone pays for the protection provided by the minimal state, those who pay are being forced
to subsidise the protection received by others. This amounts to redistribution and is a violation of
people’s property rights. Nozick notes that although the minimal state appears to be
redistributive, it is not. The minimal state, he argues, may prohibit self-protection in order to
protect the rights of others. In return it is able to compensate for the loss of the right of self-
defence by providing protection. Therefore, the action of the state is compensatory not
redistributive.

25
Nozick, note 3, p 26
26
Nozick, note 3, p 18: The invisible hand explanation
Although the state can provide for the protection of people’s rights it cannot legitimately exercise
its political power in any other way. This is because the existence of a state can only be justified
when it constitutes a minimal political authority. If the state were to seek a wider role than the
narrow function of providing protection, it would interfere with the liberty and property of its
citizens and in so doing contravene their absolute rights. Nozick writes:

Our main conclusions about the state are that a minimal state, limited to the narrow functions of
protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any
more extensive state will violate persons’ rights not to be forced to do certain things, and is
unjustified; and that the minimal state is inspiring as well as right. Two noteworthy implications
are that the state may not use its coercive apparatus for the purpose of getting some citizens to
aid others, or in order to prohibit activities to people for their own good or protection.

The Liberal-Egalitarian Argument in Favour of the Welfare State

In contrast to Nozick, others argue in favour of a more expansive state. They claim that
government is obliged to provide citizens with access to those things that are basic to human life
(should they choose to accept them from the government), and to look after the welfare of those
who are least well off. Rawls, for example, argues in favour of ‘big’ government (including
expansive state provided welfare, education and health services funded through taxation) on the
basis that it is sometimes justified to treat people unequally where unequal treatment results in
improvements for everyone (most especially the least well off).

Rawls defines society as “a more or less self-sufficient association of persons” undertaken as a

cooperative arrangement for the purpose of mutual advantage. 27 By forming an association and
acting in cooperation, those who belong to society can obtain benefits they would not be able to
achieve if they were acting on their own. Rawls observes that this creates a “convergence of
interests” but that it can also lead to disputes, since it is possible for people to disagree over how
30
mutual benefits and the burdens incurred in obtaining such advantages are to be distributed.
Because of the scope for conflict, Rawls argues that well-ordered society must be guided by a set
of related principles providing for the assignment of benefits, burdens, rights, and duties. When

27
Rawls J, A Theory of Justice, revised ed, Oxford University Press, Oxford, 1999, p 4.
these principles effect a proper distributive balance within society, and are agreed upon and
publicly affirmed by all citizens, they constitute what Rawls defines as a public conception of
justice.

Rawls claims justice is “the first virtue of social institutions”. The principles encapsulated within
public conceptions of justice apply to the basic structure of society. That is, they govern the
functions and interrelationships of a society’s basic institutions, and determine how these
institutions make distributive decisions as to the assignment of rights and duties. 28 In providing
for the assignment of rights and duties, public conceptions of justice determine the scope of
government, and indicate the circumstances within which government might legitimately
exercise state power.

Rawls proposes a conception of justice called “justice as fairness”: he abstracts it from social
contract theory, and defends it as the most reasonable and preferable conception of justice
possible. By “justice as fairness”, Rawls means the set of principles that would be selected by
persons in “the original position” to regulate society. “The original position” is a hypothetical
situation in which rational but mutually disinterested individuals, capable of a sense of justice
and concerned to further their own interests, select, from behind a “veil of ignorance”, principles
of justice applicable to the basic structure of society.

The “veil of ignorance” means that persons in the hypothetical original position are unaware of
such things as their wealth, intelligence, social standing or conception of good.29 As a result they
are unable to predict what effect their decisions will have on their own life circumstances. If
individuals in the original position choose distributive principles that benefit some but
disadvantage others, they cannot be sure whether they will be favoured or whether they will be
disadvantaged. Rawls argues that because of this they will select principles beneficial to all.

Since no one is able to select principles designed to be in her or his own favour, persons in the
original position are in an initial position of equality. The principles they choose will be free
from bias and the result of a fair agreement. It is on this basis that Rawls asserts that a society
which satisfies the requirements of “justice as fairness” comes as close as possible to being a

28
Rawls, note 29, p 11.
29
Rawls, note 29, p 19
scheme of cooperation to which free and equal persons, under circumstances that are fair, would
assent.

According to Rawls, two principles of justice would be selected in the original position. Those
two principles would be:

Individual citizens are entitled to an equal right to the “most extensive scheme of basic liberties
compatible with a similar scheme of liberties for others.”

“Social and economic inequalities are to be arranged so they are both (a) reasonably expected to
be to everyone’s advantage, and

(b) attached to positions and offices open to all.”

The first principle requires equality in the assignment of basic rights, and guarantees various
liberties such as freedom of speech, political liberty, and liberty of conscience. The second
principle applies to the distribution of wealth and authority. It states that while the distribution of
income and power does not have to be equal, it must result in compensating benefits for
38
everyone, and it must occur in such a way that the least advantaged gain the greatest benefit.
This is known as “the difference principle”.In addition, the second principle requires that
positions of authority and responsibility be accessible to all under conditions of fair equality of
opportunity.

These two principles of justice are subject to a lexicographical ordering in which the first is
40
given priority over the second. This means that the liberties protected by the first principle
must not be infringed on the basis that doing so will result in improved overall social and
economic conditions.

Rawls states that justice as fairness requires procedural justice in the handling of any particular
situation, and that procedural justice occurs within the context of a social system designed to
ensure that the resulting distribution (derived outcome) is just. Rawls means that not only do the
two principles of justice require procedural justice, but also they demand what he calls
“background fairness”. This occurs when there is “a properly organised democratic state that
allows private ownership of capital and natural resources.”
A properly organised state conforming to “justice as fairness” is one in which the basic structure
of society is regulated by a just constitution securing the liberties of equal citizenship.

[In such a society] liberty of conscience and freedom of thought are taken for granted and the fair
value of political liberty is maintained. The political process is conducted, as far as
circumstances permit, as a just procedure for choosing between governments and for enacting
just legislation.

Justice as fairness also requires that there is fair, as opposed to formal, equality of opportunity.
This means, Rawls states: “in addition to maintaining the usual kinds of social overhead capital,
the government tries to ensure equal chances of education and culture for persons similarly
endowed and motivated either by subsidizing private schools or by establishing a public school
system.” The government must also enforce equality of opportunity in economic activities and
employment. This is to be achieved by “policing the conduct of firms and private associations
and by preventing the establishment of monopolistic restrictions and barriers to the more
desirable positions.” Finally, government needs to guarantee a social minimum either by making
available family allowances and welfare payments for illness or unemployment, or by more
systematic devices such as a graded income supplement.

Nozick on Rawls
Rawls’ idea of the role and nature of government as required by “justice as fairness” is vastly
different to that envisaged by Nozick. This is due to their very different understandings of justice
and the relationship between equality and liberty. In competition with Rawls’ “justice as
fairness”, Nozick proposes “an entitlement theory of justice”. Nozick claims:

If the world were wholly just, the following inductive definition would exhaustively cover the
subject of justice in holdings: 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 that holding, is
entitled to the holding. No one is entitled to a holding except by (repeated) applications of 1 and
2.
In summary then, a distribution is just “if everyone is entitled to the holdings they possess under
the distribution.”30 Whether or not this is the case depends on whether the principle of justice in
acquisition and the principle of justice in transfer have been satisfied.

The principle of justice in acquisition deals with such matters as how unheld things may come to
be held, and the process by which this occurs. Nozick states this principle is complicated, and
declines to give a more precise formulation. However, he notes that it does include the Lockean
proviso, namely, a person’s entitlement to an acquisition depends in part on there being “enough
and as good left in common for others.”

The principle of justice in transfer “specifies the legitimate means of moving from one
distribution to another.”31 The final principle, that of exhaustiveness, holds that the only means
by which a person is entitled to property within her or his possession is if:

The property was initially acquired by just means; or The property was justly acquired from
someone else who had just possession of it. The entitlement theory of justice is historical and
unpatterned. It is historical in so far as it takes into account past actions and circumstances in
determining whether a particular distribution is just. It is unpatterned because it does not require
distribution to occur in correlation with some natural dimension or ordering such as merit or
need. On the other hand, Rawls’ “justice as fairness” is both a patterned and an end- state theory
of justice. It holds that just distributions are to be determined by some ordering or natural
dimension as well as in accordance with structural principles of justice.

Nozick notes that Rawls’ conception of justice is incapable of yielding a historical theory of
justice since it depends on the original position. 32 People “in the original position either directly
agree to an end-state distribution, or they agree to a principle; if they agree to a principle they do
it solely on the basis of end-state considerations.” As such, “the fundamental principles that they
agree to … must be end-state principles.”33 Since Rawls’ approach excludes the possibility of
persons in the original position ever endorsing a historical theory of justice, if it can be shown
that any historical theory is correct then Rawls’ approach is wrong.

30
Nozick, note 3, p 208
31
Nozick, note 3, p 202.
32
Finnis J, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980, p 187.
33
Nozick, note 3, p 202
Nozick also criticises Rawls’ theory on the basis that it is a patterned theory of distribution. He
states that any given pattern in society may be changed through voluntary exchanges and gifts.
Where voluntary acts of giving disrupt a perfectly just pattern of distribution, it follows (if a
patterned theory of justice is upheld) that such acts are unjust. However, this alters the concept of
possession, and also ignores the fact that an integral part of self-ownership is the liberty to give
things to other people. Nozick writes:

The view that holding must be patterned perhaps will seem less plausible when it is seen to have
the consequence that people may not choose to do acts that upset the patterning, even with things
they legitimately hold.

Nozick notes that on hearing the term “distributive justice”, people often presume that there is
one principle or mechanism that effects distribution within society. There is, however, “no
central distribution, no person or group entitled to control all the resources, jointly deciding how
they get doled out. What each person gets, he gets from others who give to him in exchange for
something, or as a gift. This means Nozick argues: “if things fell from heaven like manna, and no
one had any special entitlement to any portion of it [then] there might be a more compelling
reason to search for a pattern.” However, “since things come into existence already held (or with
agreements already made about how they are to be held), there is no need to search for some
pattern for unheld holdings to fit; and since the process whereby holdings actually come into
being or are shaped, itself needn’t realize any particular pattern, there is no reason to expect any
pattern to result.” Thus, in Nozick’s view, there is no need for Rawls’ patterned theory of justice.

Who is correct, Nozick or Rawls?

At the heart of the conflict between Nozick and Rawls is a disagreement over the relative priority
to be accorded to liberty and equality. For Nozick, liberty will always be of the utmost concern
in justice and to the state. Equality, he notes, is irrelevant in determining whether or not a just
distribution of property has been achieved. Rather, what matters is whether or not a holding was
acquired by legitimate means. If it was, then the distribution is just. Accordingly, it will be unjust
for anyone (including the state) to deprive a person of such a holding even if this is done in order
to aid another person. As such, systems of taxation for the purposes of redistribution and social
welfare are unjust since they amount to the imposition of forced labour. This is contrary to an
individual’s rights of liberty of body and property: that is, an individual’s right not to be forced
to do certain things.34

Rawls, on the other hand, allows the government to prioritise equality over liberty when the
results of doing so may be reasonably expected to be to everyone’s advantage: provided,
however, that a person’s most basic rights are not involved. An individual’s basic rights are
provided for under Rawls’ first principle of justice and can never be subjugated to equality.
Anything contrary to this would transgress the demands of “justice as fairness”.

Whether Nozick’s argument in support of a minimal state, and against Rawls’ theory of justice,
ultimately succeeds depends on whether or not he is correct in assuming that the holdings that a
person has justly acquired can be held without regard for the needs or claims of others (except
claims created by contract). Finnis, for example, argues:

If we see no reason to adopt his assumption that the goods of the earth can reasonably be
appropriated by a few to the substantial exclusion of all others, and if we prefer instead the
principle that they are to be treated by all as for the benefit of all according to the criteria of
distributive justice … then the question of [the legitimacy of] State coercion, which dominated
Nozick’s argument, becomes in principle of very secondary importance.35

This is so because if the rights of property and liberty are not as absolute as Nozick presumes,
then by effecting redistribution through taxation the government may simply be doing no more
than enforcing the various duties that property holders already have.

Is Nozick wrong in assuming that a person’s right over her or his property is absolute, and that
he or she is not obliged to assist others?

Nozick grounds his arguments in favour of an absolute right to property on the separateness of
every person. Although Nozick is correct in holding that people should not be used as resources
or means of achieving some end, this does not conclusively preclude people from being under
positive duties to assist others through material contribution to their welfare. Consider, for
example, that Nozick concedes that the need to respect the liberty of others places limits on a

34
Nozick, note 3, p 255
35
Finnis J, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980, p 187.
person’s ability to exercise liberty in doing what he or she wants, whenever and wherever he or
she wants. Similarly, it can be argued that if unheld property is of a common or public nature
before acquisition, that is, before it is mixed with labour, then there is a need to compensate
others for their loss of interest in these previously public or common goods. This, it might be
said, acts as a constraint on people’s ability to fully exercise their right to property such that they
ought to provide in some way for the welfare or needs of others.

Having said this, the author is not suggesting agreement with the justification given by Rawls in
favour of the welfare state, but only noting that Rawls’ argument in favour of the welfare state
has not been fatally undermined by Nozick’s critique in the way he might have hoped.

Conclusion
In conclusion, Nozick’s obsession with his individual rights might bring him and some others
egocentric pleasure at the expense of many, probably the community, which is non-existent in
their world consisted only of “individuals”. To Nozick, talking about the “collective good” of
human beings is merely to obscure the fact that an individual is being used to benefit another.
Nozick characterises rights to liberty in terms of giving the individual control over certain
decisions, and each person may exercise his rights as he chooses. But there is no guarantee of
any outcome - it is only a right to the choice of action. Evidently, Nozick’s error lie in his false
assumption of prioritising conditions of freedom for single individuals rather than considering
the conditions of freedom for all individuals i.e. the community as a whole. It is baffling that
Nozick fails to perceive the fact that if one is discussing the well-being of the society or the
community as a whole, the goodness and positivity engulfs “all individuals” in that society or
community. Such erroneous assumptions may have led him to oppose redistribution theories,
especially of that of Rawls’ theory which aims at welfare of the society as a whole without
neglecting the poor and underprivileged. It is, therefore, submitted that such individualist
capitalist institutions are not preferred in a world which is already stricken with hunger, poverty,
and famine.