Of Etiquette, or Small Morals

Below is the latest missive from my distinguished friend, Mr. Darlington. As you will see, he offers his apologies for his recent absence.

* * *

Writ from my Rooms in Cecil-Court, Westminster

April 23, 1755
Sir,

I must apologize for my silence as of late. As you can see, I have come down to the City to attend to some Business relating to the impending Nuptials of my dear daughter Betty. My Rooms here are commodious, although the Neighbourhood is not a felicitous one. Stews and Gin-Shops spring up in the Streets of this City like the Pox, and Cecil-Court is no Exception. Happily, the Delights of Covent-Garden are close at hand, and it is there that daily I stroll with my Cousin, Mr. Savile, who has kindly provided me with my present Lodgings.

‘Twas yesterday, during one of these Perambulations, that we were discoursing upon one of our favourite Topicks, namely the Manners of the Present Age. My Companion juxtaposed the Squalors of the Seven-Dials, a miserable Hive of dirty and besotted Denizens busied in naught but drinking, brawling, jostling, and picking of one another’s Pockets, with the altogether more pleasing sight of the Citizens of Covent-Garden, strolling in their Finery, displaying all the improving Graces of a polite and commercial Prosperity.

“’Tis a thing to be remark’d upon,” quoth my Companion, “this Transition, from the crudest Manners imaginable, to the greatest heights of Refinement perhaps ever attained by any human Society, all in the course of a few Strides. And it is all owing to our English Freedom. For as my Lord SHAFTESBURY has it, ‘All Politeness is owing to Liberty. We polish one another, and rub off our Corners and rough Sides by a sort of amicable Collision’ [Characteristicks, Vol. I, p. 64 — Ed.]. All the shoving and jostling we saw about us in the Seven-Dials is but a necessary Prelude to the Improvement in Morals that is attendant to political Liberty. In time, today’s Dials will be tomorrow’s Covent-Garden.”

“My dear Savile,” I replied, “this may very well prove to be. And yet it is, and hath been for some time, a common Sewer of Vice, and a Nursery for new Villainies. Your coming Age may be a Golden one, but at present,

Nona ætas agitur peiorque saecula ferri
temporibus, quorum sceleri non invenit ipsa
nomen et a nullo posuit natura metallo -

‘We live in the ninth Age, an æra worse than the Age of Iron. Nature herself can find no Name for its Wickedness and has no Metal to label it’ [Juvenal, Satires, 13.28-30 — Ed.]. I am afraid that you mistake Liberty with License. For however much Liberty may be an improving influence, it must first take root in a human Soil made fertile by proper Education and Breeding, else it is a Seed that brings forth naught but Vice and Folly. Rough Manners are more apt to enforce themselves through Repetition, and become Habits, which provide a wide Field for Vice to roam.”

I then related to my Cousin an instructive Tale told by VALERIUS MAXIMUS, which has ever been in my Thoughts since I first read it when I was a young Man at the University. Publius Servilius was an eminent Roman, and a Personage of high Quality. He was a Man who had held every Office, and had been granted all the Honours that a grateful Republick cou'd bestow upon one of its Citizens. One day, he was passing through the Forum when he happened upon a Suit at Law, just as Witnesses were giving Testimony. Servilius immediately interrupted the proceedings, took the Stand, and began speaking unsolicited. He admitted having no Knowledge of the Facts of the Case, nor what point of Law was at issue. He only knew that once, as he was traveling along a narrow Road, the Defendant refused to dismount from his Horse to allow Servilius to pass. According to Valerius, “the Jury found the Defendant guilty almost without hearing the other Witnesses. They were impressed by Servilius’ Eminence and his grave Indignation at the neglect of his Dignity and believed that someone who did not know how to respect our leading Men wou'd rush into any Villainy” [The story is found in Valerius Maximus, Memorable Deeds and Sayings, 8.5.6 — Ed.].

“Mark,” I said to my Friend, “the Roman Citizenry’s Wisdom in that uncorrupted Age; for they knew how jostling may become picking of Pockets, and how shoving and Murder are cousins-german. We each of us have, thanks be to GOD, few occasions to practice the larger Morals. We only learn to disdain the greater Vices by practicing the lesser Virtues. In this way, Etiquette, or what we may call small Morals are to the large, as tilting is to Warfare. If I find a Man knows not his Sword’s Point from its Pommel, I shall place him in the hind Ranks of the Battle Array. And when I find a man who cannot respect the Dignity of his Fellows in the smallest Degree, I am little surpriz’d to discover that he respects not their Property or their Lives, and I shall put him in the hind Ranks of my Trust. For such a Knave makes himself by Degrees capable of any villainy. What is Liberty in a Man of Virtue is mere License in a miserable Creature of this Stamp.”

With that said, we noticed that it had insensibly become late, and we began our homeward Journey.

I am, Sir,
Your humble Servant, etc.
Jos. Darlington, Esq.

When Lawyers Become Metaphysicians

If I had it to do all over again, I probably would have gone to law school rather than study for a PhD in philosophy. For one thing, I’d be wealthier. For another, there would be ample scope left for philosophizing. My dabblings in the law have taught me that there are certain problems in law which are properly philosophical rather than legal. Some of my favourite examples come not from the modern law, but from Roman law.

The Law of Occupatio

The Roman jurists seem to have spent a fair amount of time arguing about something that a philosopher would instantly recognize as the problem of identity. The problem has its origins in the law surrounding the acquisition of property.

For the Romans, as it is with us, there was more than one way to acquire property, but broadly these were divisible into two “modes”, the civil mode and the natural mode. The former dealt with property acquisition in accordance with the laws enacted by the Roman people, which were peculiar to them. The natural mode comprised those ways of acquiring property that seemed to be shared by all peoples besides the Romans. For example, if I am walking through a wilderness, and I pick up a bunch of acorns lying on the ground, I now own those acorns which were previously unowned. This mode was intelligible whether you were a Roman, a Greek, or a Jew. The Romans themselves referred to this mode of property acquisition as occupatio: the appropriation of something previously unowned (res nullius).

Occupatio was relatively unproblematic for the Roman jurists, with the exception of the case of wild animals. With land, possession of unowned land was co-extensive with ownership of it. But with wild animals, ownership only lasted as long as possession; if the animal escaped, you no longer had property in it. This includes wild animals which have been “tamed”, because the Romans thought of wildness as not a characteristic of individual animals, but of the kind to which it belongs. Exceptions were later made for certain animals (e.g. pigeons) that were in the habit of leaving and returning.

Here the English common law differs, for the common law owner of land has a property right in the game on it: if I shoot a bird on your land, the bird is yours, even though I have possession of the bird and you technically don’t.

The Law of Accessio

Things got a little more complicated with things that were a mixture or merger of materials owned by separate persons. Sometimes, the merged materials would pass into the ownership of one owner, to the prejudice of the other. This would be based on the notion that one of the materials is more important in some sense than the other. Examples of this often had to do with land. For example, if I planted seeds on your land, provided they took root, the seeds — and the resulting crops — would belong to you. Similarly if I built a house with my materials on your land. Your ownership of land would in effect give you title to the crop or the house. This mode of acquisition the Roman jurists called accessio. The idea was that some materials are accessory to others, and acceded to them. It seemed that most materials were held to be mere accessories to land. There is no thorough explanation of what exactly makes one material accessory to another, and the rules the jurists developed seem to have been varied and complicated.

What about moveables other than land? The rules here could get pretty complicated. If I make wine with your grapes, and assuming the absence of bad faith or fraud, or of a contract stipulating ownership, who owns the wine? Or who owns a goblet that you make out of my gold? For the Romans, the question turned around whether or not the resulting object (i.e. the wine or the goblet) was to be considered a new thing. The general rule was that if the process leading to the creation of an object could be reversed, and the original materials reconstituted, then the created object was not new and therefore was owned by whoever owned the materials making it up. No new species had been created. So a goblet belonged to the owner of the gold it was made from; because the goblet could be melted down and the gold given back to its owner, the goblet was not a new species. On the other hand, wine was considered new, and belonged to its maker, because wine could not be converted back into grapes.

The Law of Specificatio

In cases like wine, a new object was considered to have been created. Certain implications flowed from this. The idea was that if an object is new, then it is technically unowned, because it is no longer identified with the materials of which it consisted. As such, an unowned object, effectively a res nullius, could be acquired by whoever first took possession of it, just as in occupatio, above. In most cases this acquirer would be the maker of the thing, as he would usually be in the best position to do so. Such appropriation of a newly-created thing was a mode of acquisition which the jurists called specificatio.

For a couple of centuries there were two “schools” of Roman jurists, the Sabinians and the Proculians, presumably named for their first-century AD founders, Sabinus and Proculus. Nobody has yet explained exactly what were the principled theoretical differences between the two schools, but they differed on many specific issues. In particular they seem to have differed on the issue of specificatio.

The Sabinians held that the creator of the new object had right of acquisition by virtue of the very act of creation (thus, by creatio). This is somewhat reminiscent of John Locke’s view of original acquisition as espoused in his Second Treatise of Government (1690), where one acquires unowned property by “mixing one’s labour” with it. The Sabinian jurists did not put it in quite those terms, but the main point is that there was no gap between creatio and occupatio.

Predictably, the Proculians disagreed, holding that creatio and occupatio were different acts. Now, as a matter of fact, the creator would usually be in the best position to take possession (and thereby ownership), but this need not be the case. For example, I could stomp your grapes and leave the juice to ferment, and you could slip in and repossess the juice after it had been converted into wine. Here much would depend on at what exact point the material in question ceased to be what it was and became something else. Was it after the grapes had been stomped? Or at some point along in the fermenting process? Or not until it had been decanted?

Notice though that these kinds of questions would arise for Sabinians too, for even without a gap between creation and ownership, one still had to determine when creation actually occurred. Obviously, there was much room here for juristic discussion.

Of Books and Paintings

Not all the cases discussed in the texts of the jurists fall neatly into the scheme of occupatio, accessio, and specificatio. In his Institutes, the jurist Gaius (2nd century AD) mentions two contrasting cases. He held that “what someone has written on my paper or parchment is mine even if it is in letters of gold, because the letters become part of the parchment” (II.77). So the writing accedes to the parchment, a seemingly clear case of accessio. But in the next section he writes that “if someone has painted something on my board, such as a portrait, the opposite rule holds; the preferred view is that the board accedes to the painting. The reason given for this difference is scarcely adequate” (II.78). So Gaius repeats the received and seemingly contradictory opinion, while claiming ignorance as to the reasoning underpinning it.

The strange inconsistency is repeated a few centuries later in Justinian’s Institutes (6th century AD): writing becomes part of the parchment, while in the case of a painting, “our view makes the picture prevail over the board.” Here Justinian gives us a hint as to his — rather inadequate — reasoning, for “it would be ridiculous for a picture by Apelles or Parrhasius to accede to a board worth almost nothing” (2.1.34). In other words, it is the painting that makes the value of the object, not the board. But what if the painting is simply very bad? And why does Virgil’s writing of the Æneid on a parchment not in the same way make the greater part of the value of that parchment? Modern scholars have been unable to give a good explanation of these cases, and there is no elucidation in the texts which have come down to us.

I would note a couple of things about the texts. In the cases of writing on parchment, Justinian’s Latin reads “chartis membranisve” and the earlier text of Gaius reads “cartulis sive membranis” (literally “paper or skin”). “Paper” would presumably mean papyrus, and by “skin” is meant sheepskin or vellum. Now, by the standards of the times, these were fairly expensive manufactured items, by no means as cheap as modern paper. It is notable that there is no mention of the wax tablets that would certainly have been the more commonly used writing surface. Furthermore, vellum in particular could be scraped clean and re-used (indeed, the text of Gaius was discovered in the Vatican in the form of a palimpsest or overwritten parchment). The frequency with which this was done gives some indication of the value of parchment. Presumably ink was nowhere near as expensive, even if the letters were of gold.

A board was not typically very expensive. But paints certainly were. For one thing, a painter would normally have to make his own paints; it did not come in tubes from an art supplies shop. And many of the pigments used would be made from quite precious materials. For example, in his Natural History (Bk. 35), Pliny bemoaned the fashion of artists in his time to use ever more exotic colours made from luxurious materials, the costs of which were now being paid by the commissioners of works rather than the artists themselves (which might explain how legal disputes of this nature would arise). When it is remembered that much more paint would go on a board than ink would go on a parchment, we begin to see a possible basis for the distinction between the two cases. At least, this is the best rationalization that I can come up with.

Rights in personam and Rights in rem

Some of these rules may have seemed rather harsh to the persons involved. If you made wine with my grapes, I lost my grapes, while you seemed to gain wine at my expense. But this was not necessarily the case. For I could still sue you for the cost of the grapes. I just couldn’t sue you for the grapes themselves.

In Roman law, if I lent you my book, I might have a right to possession of that book, which was called a right in rem (a right “to the thing”). Or I might have a right against you for the value of the book, which was called a right in personam (a right “in the person”). In cases of accessio and specificatio, what happened was that a right in rem was converted into a right in personam.

Was this a distinction without a difference? Definitely not. For example, if I lent you a book, and you later became insolvent, my right in rem to the book allowed me to get it back before your assets were liquidated to pay off your debts. If my right to it was only in personam, I would have to wait my turn in line with all the other creditors to get back the value of the book from your liquidated assets — if enough remained.

Thus, although you might lose your board to my painting, nonetheless you still had a (somewhat weaker) right against me for the value of your lost board.

Why I Am Not a Libertarian

In my last post I promised an explanation of why I’m not a libertarian. I would now like to redeem that promise, however sketchily. In the same posting I also mentioned that if I had to characterize myself politically, the closest label would be “Red Tory”. I will clarify this as well.

Why I Am a Red Tory

A Red Tory is a conservative of a somewhat peculiar sort. Often, in everyday political discourse, libertarianism (like other positions of a “classical liberal” stripe) is mistakenly considered to be a “right wing” or “conservative” position, although I’m not really sure why. While libertarianism is notable for its staunch defense of the market order, conservatism proper has traditionally been associated with the critique of capitalism and the defense of a more traditional, agrarian, order. I suspect that libertarianism and conservatism have become yoked together in the popular mind because of a perceived shared association with the interests of the wealthy (and there is certainly some truth in this). In any case, there are important differences.

Libertarians defend individual liberty as a fundamental value, indeed the fundamental value. It is fundamental for them because it underpins another position, which we can call value pluralism. The core idea of value pluralism is quite simple: there are as many things of value as there are people who value them. Each of us has his or her own conception of the good life, and liberty is fundamental because it is what allows us to pursue our individual conceptions of the good life. To paraphrase John Stuart Mill, each of us is involved in our own experiments in living, and each of us is best placed to judge of what will make us happy.

A caricatured version of conservatism, on the other hand, is held to believe that a society can only be kept coherent by a single shared conception of the good, and of a life based on it. Let us call this position value monism. Now, I do not agree with value monism. So in what sense am I conservative?

I agree that there are many valid conceptions of the good (though perhaps not as many as libertarians believe there are). But I also believe that collective experience and common sense have shown us that there are also some conceivable lives that are bad for those who live them. To use Mill’s metaphor again, there are some “experiments in living” that have already been tried, and the results are in: there’s no need to repeat these experiments, because they are eliminable as candidates for the good life.

For example, no parents would wish their child to become a drug addict or prostitute (which is why I hate the media euphemism “sex worker” — no journalist who is also a parent would view “sex worker” as a valid career choice for their own children, so why do they play at pretending that it is one for other people’s children?). And insofar as life presents certain traps that may lead one into such a life, the government has a legitimate role in eliminating them. Nay, not only a legitimate role — a duty.

Associated with this idea is the conservative’s view of human nature as fundamentally imperfect in certain respects. Libertarians, and liberals more generally, assume that we are each of us rational, and that left to ourselves, and with all the necessary information, we will make the right choices (or at least will readily learn from our mistakes, which are presumed to be mostly harmless). Conservatives are less sanguine about human rationality, otherwise we would not need protection from the sorts of things that reliably tempt people into bad lives.

I admit that the more I learn about human nature, the less confidence I have in its supposed rationality. The findings of social psychologists more and more point to the many systematic cognitive errors and biases to which we seem to be prone.

Against System?

Conservatives are often taken to be against rational systems, for as Lord Shaftesbury put it, “the most ingenious way of becoming foolish is by a system.” I agree with this sentiment, and for the following reason.

Knowledge is not something contained in any one mind. In some cases, as paradoxical as it may sound, knowledge is not to be found in any mind at all. Rather, it is deposited over time, like alluvial sediment, in our institutions, practices, customs, and ways of life. Therefore, conservatives are rightly suspicious of any attempts to destroy these to make way for new, more “rational” schemes, whether the scheme be Marx’s communism or Adam Smith’s “invisible hand”. As experience ought to have taught us again and again, such schemes often have unintended consequences that are far worse than the ills they were meant to correct.

For the Status Quo?

This conservative attitude (for it is not really a theory) often leads to the accusation that conservatives are simply concerned to defend (to conserve) the status quo, regardless of how indefensible the status quo might be. They are accused of believing that, in Pope’s words, “whatever is, is right.”

This is not fair. The status quo is not the last word in any argument. But it ought to be the first word. Before we go about changing things, especially in favour of a new rational scheme thought up by projectors, bureaucrats, and stock jobbers, we should at least make the attempt to understand what we propose to get rid of. We should try to understand why things might be the way they are, and to preserve whatever might be good about it at the same time that we remedy what must go.

People have a fetish for novelty; they like to snatch at shiny things. But razor blades and broken glass are shiny too. It is often the dustier bottle that contains the finer wine.

Why I Am a Red Tory

So much for my Toryism. In what sense am I a Red Tory? If I were to list the items I believe the good society should have, my list would differ little from a social democrat’s. For example, I believe in a publicly-funded health care system, some form of unemployment insurance, and I even believe in a guaranteed minimum income. On the face of it, this puts me far to the left of the political spectrum in many jurisdictions. These things are certainly anathema to a libertarian.

(Incidentally, I do not believe in public education as it is now practised. It has proved itself an utter failure. On the other hand, my conservatism tells me we should keep it for the time being, because plausible alternatives — such as some kind of voucher system — seem impractical at present.)

Interestingly, what separates me from the left on these issues also differentiates me from libertarians, for I do not believe that people have a right to public health care or unemployment insurance. In fact, I am not convinced that people have rights to anything at all, at least not if we mean by “rights” something that is universal, natural, inalienable, and [insert your inflationary adjective of choice here].

Social democrats believe that people have a right to egalitarian social programs. Libertarians believe that people have a right to liberty, which would be violated by such programs. This indicates how unprofitable “rights talk” is. At best, I think such language is aspirational, a way of talking about things we might like to have. In another way, rights are like the Bogeyman: they’re useful to scare or awe people into good behaviour, but they don’t actually exist.

Instead, I believe that such social programs are best justified by appeal to collective experience, as well as by an impartial examination of history. These tell us that too much inequality undermines social solidarity and is bad for society. Furthermore, such social programs have proven themselves conducive to the collective health and happiness of society. We do not need to appeal to rights. We need only appeal to the needs of the community, and such an appeal is eminently conservative.

To those citizens of means who do not need such programs, who would rather opt out of contributing to them, and who feel like their pockets are being picked to pay for them, I would beseech them to reflect on how much of their own well-being is dependent on the well-being of the rest of society, a well-being that is buttressed by precisely such programs.

None of this implies that social programs cannot be improved with an eye to better administrative efficiency and effectiveness, nor should we necessarily give in to the temptation to expand them indefinitely. It is here that libertarian critiques may be of some service.

Robert Nozick, "Anarchy, State, and Utopia"

Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

There are some books I have found myself in love with, despite disagreeing with almost everything the author has to say. My next favourite book is one of these. The book in question is Anarchy, State, and Utopia, by the Harvard political philosopher Robert Nozick (who, incidentally, died in 2002).

As a bit of pointless trivia, there is an episode of The Sopranos which features this book as a prop. A man who has witnessed a hit by Tony Soprano’s crew gets a call from the police, telling him that the charges against the mobsters have been dropped. When his phone rings, the man is sitting in his living room, reading a copy of Anarchy, State, and Utopia. I’m sure there is no particular plot-based reason for this choice of reading material.

Now, some warning is in order. The book is very controversial, having become one of the most influential works of libertarian thought ever written. And Nozick himself does not pull any punches. For example, he is notorious for having suggested that taxation is akin to forced labour. Therefore, in case you are scared off by the misconception that I am some kind of radical libertarian, I can assure you that I am not. Although liberty is a very important value, it is not the fundamental one. There are other values that, depending on circumstances, may have just as much claim on us as liberty. Having said that, liberty is not something to be cavalierly bargained away for magic beans or bread doles.

(If you must ask, if I had to force a political label upon myself, I suppose the closest fit would be “Red Tory” — see http://en.wikipedia.org/wiki/Red_Tory — but with serious reservations).

On the other hand, reading Nozick’s work was the final nail in the coffin of my youthful flirtation with socialism. In a nutshell, Nozick begins by arguing for the legitimacy of some kind of state, as opposed to mere anarchy. On the other hand, the only kind of legitimate state he sees is what he calls the “minimal state”, one whose powers are largely limited to the protection of citizens from internal or external violence, and a few other functions, such as the protection of property rights, the redress of injury, and enforcement of contracts. Anything more than a minimal state would involve coercion and violation of individual rights and, as such, would lack legitimacy. Anarchy, State, and Utopia is a long, densely argued work. Personally, I am unconvinced, but just as I haven’t the space here to do justice to Nozick’s argumentation, so I also lack space to fully articulate the reasons for why I disagree with him. Instead, I wish to focus on one important aspect of his work, namely his conception of distributive justice, as laid out in the tour-de-force Chapter 7. It is this chapter that has had the most influence on my thinking.

Rawls and Distributive Justice

Nozick embarks on a lengthy examination of distributive justice in Chapter 7 because he wants to examine the claim that a more-than-minimal state can be justified on the grounds that only such a state can achieve distributive justice. So, what is distributive justice? The simplest way to put it is that distributive justice deals with the question of who gets what, and for what reason?

Nozick’s views make much more sense if we see them as a response to a particular theory of distributive justice, namely that put forth in John Rawls' A Theory of Justice (1971). Rawls’s book has the reputation of being the greatest work of political philosophy of the 20th century, and perhaps one of the greatest ever written. Personally, I think Rawls is one of the most over-rated philosophers of all time, but perhaps my opinion is tainted by the amount of time I had to spend studying his work in both of the universities at which I studied. However, at the time that Nozick wrote, one couldn’t swing a dead cat in a room full of intellectuals without hitting a Rawlsian (and in some philosophy departments it’s still that way).

Rawls presented a social contract theory which seems to justify a redistributive state. It is based on a thought experiment called “the original position”, in which a collection of people get together to agree on the basic principles of justice that will structure the state they are trying to achieve. They do so behind what Rawls calls the “veil of ignorance”: nobody knows anything about their personal characteristics, or their talents and “natural assets”; and most importantly, nobody knows what socio-economic position they will occupy in the new state.

Rawls argues that in the original position, bargainers would opt for principles that will maximize the position of the worst off, given the possibility that any of them could end up being among the worst off. Thus, they will agree on principles of distributive justice that will embody some degree of egalitarianism. Inequality would thus only be justifiable if the gains of the better off would also improve the lot of the worst off. Otherwise, equality must be preserved, even at the cost of redistribution.

Nozick’s Entitlement Theory

Nozick’s theory of distributive justice is called the “entitlement theory”. He says, first off, that we should not view goods like property and wealth as manna from heaven, dropped in our laps out of nowhere, to be divided up amongst us according to some abstract principle of justice. Such goods are not just dropped here, for the most part. They are produced, by people. Moreover, the pie to be divided up is not a fixed one; it is not necessarily the case that one person’s larger share must mean someone else’s getting a smaller share.

For Nozick, one is entitled to one’s holdings if they are held according to any of the following principles:

1. They are held according to the principle of just acquisition.
2. They are held according to the principle of just transfer from someone who is entitled to them.
3. No one is entitled to their holdings except by (repeated) applications of 1 and 2.

(To these, Nozick adds a principle of corrective justice, stating that one can acquire one’s holdings through rectification of another’s unjust appropriation.)

Patterned vs. Unpatterned and Historical vs. End-State

Nozick makes two distinctions between kinds of principles of distribution. According to one, a principle may be patterned or unpatterned. If it is patterned, then the resulting distribution will be one that could not plausibly have arisen through chance. The clearest example would be a distribution that is strictly egalitarian. Any principle of the form “To each according to his X” would result in a patterned distribution, in which those who are X hold more than those who are not X.

The other distinction is between principles that are end-state and those that are historical. End-state principles assess the justice of a distribution on the basis of a current time-slice of that distribution. Thus, strict egalitarianism might judge an equal distribution to be just, regardless of how it got to be that way. By contrast, a historical principle is concerned with how that distribution came about.

Rawls’ theory of justice is patterned and end-state. Given the above, we can see that Nozick’s entitlement theory is unpatterned and historical. He illustrates this with his famous example of Wilt Chamberlain.

Wilt Chamberlain

Nozick has us imagine a particular patterned and end-state distribution, for simplicity’s sake, let it be strict egalitarianism, where everyone’s holdings are the same. Now, imagine that based on his talents Wilt Chamberlain (for those too young to know, Wilt Chamberlain was once a famous basketball player) cuts a deal with his team’s owners for part of the gate receipts to their games. The team agrees to this. Now, every time people come to see his team play, Chamberlain gets 25 cents. A million people come, so soon he has amassed $250,000. Chamberlain now has much more money than everyone else (with the possible exception of his team’s owners). Is the resulting distribution unjust? It is certainly unpatterned, given that the egalitarianism has been broken up — as Nozick puts it, liberty upsets patterns.

According to Nozick, it is not unjust, because Chamberlain has become rich as the result of the individual choices of all the people that came to see him. So long as (by hypothesis) the spectators held their money justly, they justly transferred a part of their holdings to Chamberlain. Because we can only judge the justice of the resulting distribution on the basis of on how it came about, Nozick’s entitlement theory is historical.

Now, the previous egalitarian distribution can only be restored through forced redistribution, which can only occur through violating the principles of justice in holdings outlined by Nozick. The state must effectively steal money from Wilt Chamberlain and give it back to the people who gave it to him of their own volition. Thus, a redistributive state must resort to injustice in order to preserve its chosen conception of distributive justice. It is in this context that Nozick compares redistributive taxation to forced labour — working as the instrument of the wishes of others.

Private Property and Redistribution

Some of these ideas are not new. In his Politics, Aristotle gave what to me is still one of the best arguments for a regime of private property I have come across. Aristotle said that private ownership of property gives greater scope for the exercise of the virtues. “Common ownership” is a misnomer, he says, because under such a regime, nobody really owns anything. And if you can’t own things, you can’t give anything away, for you cannot give away what is not yours. Therefore, under common ownership, it becomes impossible to truly exercise the virtue of generosity. And if generosity is fundamental to friendship, then true friendship becomes impossible under this regime. And friendship is a very important arena for the exercise of many other virtues.

I imagine that without the possibility of generosity and friendship, social life would lose much of its lustre. I have had the privilege of speaking with many people who have had the experience of living under communist regimes, and this is one of the things they always point out to me, that the state sinks its tentacles even into personal relations. It is ironic that a system like communism, supposedly based on the notion of solidarity, should be so adept at undermining it.

Friedrich Hayek, in The Road to Serfdom (1944), made an argument similar to Aristotle’s. We tend to think highly of ourselves when we approve of various redistributive schemes our governments propose, but before we pat ourselves on the back for our generosity, we should always ask ourselves whether it is really our money we are proposing to spend. For as Hayek puts it, “we are neither entitled to be unselfish at someone else’s expense nor is there any merit in being unselfish if we have no choice. The members of a society who in all respects are made to do the good thing have no title to praise.”

As I’ve already mentioned, Nozick’s book is a great part of the reason why I am no longer a socialist. But despite my rather charitable presentation of Nozick’s ideas, he has certainly not converted me to libertarianism. I hope to outline why I am not a libertarian in a future posting.