Chapter - 5 " Theory of justice" (iv)

Robert Nozick’s Entitlement Theory of Justice​,

5.1 Introduction

The American political philosopher Robert Nozick, a libertarian liberal, best known for his
1
first book Anarchy State and Utopia published in 1974 . 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 in 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
2
century whose book, A Theory of Justice , 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 problems with Nozick’s
arguments is the “abstractness of the individualism they presuppose” and individualism,

1
Nozick R (1974) Anarchy State and Utopia. Basic Books.
2
Rawls J (1971) A Theory of Justice (Rev. edn.) Harvard University Press.
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.

5.2 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
3
can be acquired by an individual .

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

3
Grey TC (1976) Property and Need: The Welfare State and Theories of Distributive Justice. Stanford
Law Review 28: 877-902.
methods of initial 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 resources 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
4
earlier injustices or at least apply to highly disputable methods .

5.3Justice 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
5
that the transfer is just and the individual is entitled to the holding (purchase, gift and so on) .
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
6
such an instance .

4
Tversky A, Kahneman D (1986) Rational Choice and the Framing of Decisions. Journal of Business
59: S251-S278.
5
Rakowski E (1996) Transferring Wealth Liberally. Tax Law Review 51: 419.
6
McCaffery EJ (1994) The Uneasy Case for Wealth Transfer Taxation. Yale Law Journal 104:
283-365.
5.4Justice 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
7
rectified using this principle .

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 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 the very end result determined
societies. It may, therefore, be submitted that with its temporary application, the rectification
8
principle lacks the criteria to be a universal one .

7
McCaffery EJ (1994) The Uneasy Case for Wealth Transfer Taxation. Yale Law Journal 104:
283-365.
8
Epstein RA (1985) Takings: Private Property and the Power of Eminent Domain Cambridge, MA:
Harvard University Press.
Nozick’s theory of 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 subdivisions 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.

5.5 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
9
talented . He 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
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 the protection of the state”. Epstein, a libertarian, endorses the idea of broad-based or

9
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.
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 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
10
redistribution the only basis to 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.

10
Duff DG (2005) Private and Tax Policy in a Libertarian World: A Critical Review. Canadian Journal
of Law and Jurisprudence 18: 23-45.
5.6 Ronald Dworkin's Notion of Justice
​For both Rawls and Nozick, there is a clear relationship between
justice and rights, but it is Ronald Dworkin who can be said most clearly to ground justice in
rights. To Dworkin rights are trumps. They are grounded in a principle of equal concern and
respect, so for a Judge to make a mistake about a legal right is a matter of injustice. Further,
the whole institution of rights rests on the conviction that the invasion of relatively important
right is a grave injustice. Dworkin sees rights as safeguards inserted into political and legal
morality to prevent the conception of the equalitarian character of welfarist calculations by
11
the introduction of external preferences. Utilitarianism, Dworkin argues assigns critical
weight to external preferences: it is accordingly not equalitarian since it will not respect the
12
right of every one to be treated with equal concern and respect.
In view of above right and goal based dichotomy pertaining to the
notion of justice, it is submitted that if the weakness of utilitarian theories lies in their
readiness to sacrifice individual rights on the altar of maximizing happiness that of right
based moral theories are also experiencing great difficulties in producing arguments for the
existence of rights.
(C) (iv) Views of Communitarian Jurists and Displacement of Debate over the respective
priority of the Right and the Good
Communitarian Jurists like Michael Sandel has observed: "For
liberals of the Kantian type such as Rawls, the priority of the right over the good means not
only that one can not sacrifice individual rights in the name of the general good, but also that
13
principles of justice can not be derived from a particular conception of the good lite."
This is a cardinal principle of liberalism, according to which there can not be a sole
conception of eudaimonia, i.e., of happiness.The communitarians argue that one can not
define the right prior to
the good, since it is only through our participation in a community which defines the good
that we can have a sense of what the right is and attain a living conception of justice, outside

11
R. Dworkin. Taking Rights Seriously, 1978, p.28
12
Quoted by LLoyds Introduction to Jurisprudence, p. 543
13
Michael Sandel. "Liberalism and the limits of Justice" as quoted at supra 3 p. 413
 14
community there is no god and no right. Communitarian therefore assert it is only within a
specific community, defining itself by the good that it postulates that an individual with his
rights can exist. It appears necessary for liberals to specify that the search for justice is partly
a question of actively working for and intellectually defending particular images of political
community.
They (i.e., communitarians) rightfully assert that "Justice is not a philosophical conception
15
but it is an existential goal."
(C) (v) Karl Marx Notions of Justice Among the goal based theories of Justice, there are
some
commonalities between Bentham and Karl Marx. First, their tasks as social thinkers were to
clear men's minds as to the true character of human society and secondly, that human society
and its legal structure which had worked so much human misery had been protected from
criticism by myths, mysteries and illusions, not all of them intentionally generated, yet all of
16
them profitable to interested parties.
However, while Bentham was a liberal and individualistic whereas
Marx was a revolutionary communist. Marx's view of justice emerges most clearly in capital
and the critique of the Gotha programme.
Both Bentham and Marx are opposed to the natural law conceptions
of "Rights", however Marx differed from Bentham in the realm of distributive justice and
opined that from each according to his ability to each according to his needs." On the notion
of human rights Marx wrote of the so called rights of man as simply the rights of a member
of a civil society, that is of egoistic man and separated from other men and from the
community. Whereas Bentham's principles of justice are grounded in utility and in the
greatest happiness of the greatest number ushered by parliamentary legislation. Marx talks of
withering away of state as the promise of Marxism is that we may attain a state of being
beyond justice, beyond any rational ideal.

14
Ibid
15
Id. at p. 414
16
H.L.A. Hart. Supra 5 at pp. 25-26
Hans Kelson (1881-1973)-

Hans Kelson was Austrian Jurist. He was born at Prague in Austria in 1881 and was a professor of
law at the Vienna University. She was also the judge of the supreme constitutional Court of Austria
for 10 years during 1920 to 1930. thereafter he shifted to England he came to the United States and
work as a professor of law in several American Universities and authored many books. He released
the "Theory of law entitled "The General Theory of Law and State 1945. it drew the attention of the
modern jurisprudents and came to be known as Kelson's Pure Theory of Law.

5.7 Kelsons Pure theory of Law

According to Kelson a theory of law should be uniform. It should be applicable to all times and in
all places. according to him, Law must be free from ethics, politics, history, sociology etc in other
words, it must be pure.

5.7.1 Pure theory is closed to some other theories -

Kelson and Austin both are positivists. Hans Kelson's Pure theory of law is a part of analytical
positivism. Kelson explains his theory by the method of analogy. It deals with the existing fact for
example what law is and not as it ought to be.
The theory of law must be distinguished from this law itself -
Law itself consists of a mass of heterogeneous of rules and the function of the theory of law is to
relate them in a logical pattern and to recognize them in single ordinarily unit
​Theory of law should be uniform -
According to Kelsen, a theory of law should be uniform. for example - it should be applicable at all
times and in all places

5.7.2Law is Normative Science -

According to Kelson law is a normative science and it is not a natural science based on cause and
effect like law of gravitation.
5.7.3Theory of Law must be pure -
According to Kelson's pure theory of law, it must be free from Ethics, Morality, Politics Sociology,
History etc it must be pure.

5.8According to Kelsen law is a normative science -

Jurisprudence is the knowledge of norms. Law is a normative science. A norm of law is simply a
preposition in hypothetical from. A norm of law has a distinct feature. They are different from Science
norm.

5.9Hierarchy of normative relations -

For Kelsen law is the knowledge of hierarchy of normative relations. He does not want to
include in his theory what ought to be but for him, law is a theory of analysis an analysis that is free
from all ethical and political judgment of value

5.10Salient features of Kelson's pure theory of law / Essential of

Kelson's Pure Theory of Law
(1) Reduce chaos and multiplicity to unity- The aim of the Pure theory of law is to reduce
chaos and multiplicity to Unity
(2) Legal theory as a science of what law is, not what ought to be - Pure theory of law deals
with the knowledge of what law is, and it is not concerned about what law ought to be.
(3) Law as normative science - Theory considered as a normative science and not a natural
science.
(4) Effectiveness of not out of scope - Legal theory as a theory of norms is not concerned
with the effectiveness of legal norms
(5) It is formal theory confined to a particular system of positive law as actually in operation.
(6) The relation of legal theory to a particular system of positive law is that of possible to
actual law
5.11Criticism of Kelsons Pure theory law

1. Grund norms vague And confusing-

2. Purity of nerve cannot be maintained
3. Natural law is ignored
4. Supremacy of international law
5. No practical significance

Bentham's view on justice____

Bentham agreed with Hans Kelson who said "absolute justice is an irrational ideal, an illusion__One of the eternal illusions of mankind ". He held justice as

primarily a quality of social order regulating mutual relations of men. A social order is just if it is satisfactory to all men. Therefore, longing for justice is, in

fact, longing for happiness guaranteed by a social order and protecting certain interests socially recognized by the majority as worthy of being protected.

Bentham's perception of justice is based on system of values and each society has its own different set of values ie morals. The individuals living in the

society have to conform to the set of values or norms and rationalise his conduct or behavior accordingly. If they do not there would be a conflict of interest.

If there is no conflict of interest, they would be no need for justice

Conclusion 
The  above discussion of various approaches about the notion of justice 
has  clearly  revealed  that  we  face  an  irresoluble  pluralism  of  ideologies.  If  the 
structure  of  legalism  embodies  one  dominant  set  of  ideologies  it  will  appear 
unjust from another perspective . 
 
17
Kelson  has rightly concluded that there can not be a formal science of 
justice,  since  even  if  a  theory  of justice were logically constructed it would be 
based  on  emotive  premises.  It  is  not  possible  to  identify  in  a  scientific  way 
the  supreme  values  that  a  just  order  of  social  life  should  attempt  to  promote 

17
As quoted by Wayne Morrison, Supra 3 at p. 385 
one  person  may  regard  the  advancement  of  individual  autonomy  as  the 
foremost  aim  of  legal  ordering  another  person  may  argue  that  law-makers 
should  promote  the  goal  of  equality.  Yet  another  may  claim  that  security  is 
the  overriding  interest  and  he  is  willing  to  sacrifice  equality  and  freedom  for 
the  fullest  resolution  of  this  value.  Therefore,  it  has  rightly  been  concluded 
that the concept of justice is not amenable to rational determination.