Any discussion of Nozick’s views must begin with his bold opening claim from the Preface of ASU’. “Individuals have rights, and there are things no person or group may do to them (without violating their rights)” (1974: ix). Toward the end of that Preface, Nozick also states that ASU does not provide “a precise theory of the moral basis of individual rights” (1974: xiv). However, this admission does not justify the contention of many critics that Nozick provides no underpinning for individual moral rights.- I will present a sympathetic reconstruction of Nozick’s admittedly sketchy case for affirming certain individual rights. John Rawls’ A Theory of Justice (Rawls 1971) -hereafter, TJ – stands as the late twentieth century’s blockbuster in political philosophy – especially in light of the way in which this work paved the way for Rawls’ somewhat revised account of the principles of justice in Political Liberalism (Rawls 1993 – hereafter PL). I will argue that Nozick provides at least as much argumentation for his affirmation of moral rights as John Rawls provides for the contractarian project that he develops in TJ. Indeed, Nozick’s argument for the affirmation of individual rights essentially replicates Rawls’ argument for the contractarian program of identifying the principles of justice by ascertaining what principles rational individuals would agree upon to govern their interactions (or to govern the design of the basic institutions that will govern their interactions). I shall further contend that this common argument better justifies Nozick’s affirmation of individual rights than Rawls’ contractarian project.

In TJ, Rawls sets out to oust utilitarianism as the dominant doctrine in political philosophy and replace it with his particular version of contractarianism. Rawls’ strategy is to identify what he takes to be the signature argument on behalf of utilitarianism, debunk that argument, and display his contractarian approach as the alternative that most or most obviously avoids the error detected within that argument for utilitarianism (1971: 22-33). The core contention that Rawls ascribes to utilitarianism is that, if a certain principle of individual choice is sound, then so too is a certain principle of social choice. The principle of individual choice is that, at least if no other party is affected, it is rational for an individual to incur costs for himself (or to forego benefits for himself) if doing so will spare him greater costs (or provide him with greater benefits) – if by doing so he will “achieve his own greatest good” (1971: 23). The principle of social choice is that it is rational for each member of society to engender costs or forego benefits for any member of society if doing so will spare any other member (or group of members) of society greater costs, or provide that other member (or group of members) with greater benefits. According to Rawls, the utilitarian holds that the maximizing rationale that supports the principle of individual choice likewise supports the principle of social choice. Thus, according to the utilitarian, each agent as a member of society has reason to maximize the aggregate social good even at the expense of the individual good of himself or others. “The principle of choice for an association of men is interpreted as an extension of the principle of choice for one man” (1971: 24).

Rawls rejects this transition from this principle of individual choice to this principle of social choice. He maintains that this transition fails to recognize the fundamental difference between individuals and society. That difference is that persons are markedly more separate and distinct from one another than are the different phases of a given person’s life from one another. Those different phases are all parts of a single individual life, while individual lives are not anything like all parts of a single social life. A greater gain in one phase of an individual’s life and a lesser loss in another phase will be a greater gain and a lesser loss for that individual. There is some entity, viz., that individual, for whom that gain at the expense of that loss will be worthwhile. Because of this, that individual will have reason to incur that loss in order to capture that gain. In contrast, the lives of individuals do not add up to a social life for which – from the perspective of which – it is worthwhile that a loss be incurred in one of those individual lives if that loss engenders a greater gain in another one of those individual lives. There is no subject who undergoes both the greater gain and the lesser loss such that we can say that this subject is compensated for the lesser loss by the greater gain. The fundamental error of utilitarianism is that it “does not take seriously the distinction between persons” (1971: 27).

Of course, a particular member of society might gain by way of another member incurring a loss. That individual may have reason to be pleased about her benefiting at the expense of the other. Nevertheless, the question is whether that gain provides a reason for the party who will undergo the loss to incur that loss (or to accept its imposition upon her) in anything like the way there would be reason for her to undergo it were she also to reap the greater gain. Rawls answers this question in the negative. According to Rawls, only if we conflate individuals – only if we mistakenly conceive of them as parts of a single person­like being, will the utilitarian principle of social choice be on a par with the principle of individual choice (1971: 26-7). However, society is not such a fusion of individuals. Society is an association of individuals; it is not itself an entity with a life of its own. Rawls concludes that,

if we assume that the correct regulative principle for anything depends on the nature of that thing, and the plurality of distinct persons with separate systems of ends is an essential feature of human societies, we should not expect the principles of social choice to be utilitarian. (1971:29)

Notice that Rawls takes his critique to carry him beyond the mere dismissal of the utilitarian regulative principle. For, he takes that critique to reveal a criterion for the correct regulative principle (or set of principles) for the governance of social interaction. Correct regulative principles must be responsive to or reflective of “the plurality of distinct persons with separate systems of ends.” For this reason, we should expect the correct regulative principles to be fundamentally different in character from the utilitarian principle of social choice. For Rawls, the mark of such principles is that they would be agreed to by all members of society were they all to bargain rationally with one another about what principles will govern their interaction. If certain principles would be agreed to by all rational individuals – each of whom is interested in advancing her distinct system of ends – those principles can be said to take seriously the separateness of persons. The core of the argument for the superiority of Nozick’s natural rights reading of the implications of the separateness argument is that Rawls’ contractarian reading of the argument’s implications more betrays than recognizes “the plurality of distinct persons with separate systems of ends.”

Nozick’s version of the separateness argument also begins with his wondering whether we should proceed from the principle of individual choice to the utilitarian principle of social choice.

Individually, we each sometimes choose to undergo some pain or sacrifice for a greater benefit or to avoid a greater harm: we go to the dentist to avoid worse suffering later … In each case, some cost is borne for the sake of the greater overall good. Why not, similarly, hold that some persons have to bear some costs that benefit other persons more, for the sake of the overall social good? (1974:32)

Nozick’s response to this question is,

But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up. (1974: 32-3)

Nevertheless, it may be unfair to the utilitarian to hold that her argument depends on the fusing or conflation of persons or belief in a social entity. A forthright utilitarian may be quite willing to say that greater gains bestowed on one individual justify the lesser losses imposed on some separate individual. Let us consider one elegant way for a utilitarian to attempt to uphold the inference from the principle of individual choice to the utilitarian principle of social choice without relying on the conflation of persons into a social entity.

This utilitarian would claim that what makes it rational for an individual to incur a lesser cost within her own life in order to attain a greater benefit within her own life is simply that the benefit is greater than the cost. The fact that the cost and the benefit are hers – that they both occur with her life – plays no role in making rational the production of the greater benefit at the lesser cost. Therefore, no contentious inference is needed to get from the so-called principle of individual choice to the principle of social choice. For, what is already really at work in making the personally advantageous action rational is simply the impersonal principle that it is rational to incur costs (on whomever they will fall) whenever doing so will yield more extensive gains (on whomever they are bestowed). Rawls and Nozick depict the utilitarian as trying to assimilate the utilitarian principle of social choice to the principle of individual choice by thinking of society as a mega-individual. “[U]tilitarianism is not individualistic, at least as arrived at by the more natural course of reflection, in that, by conflating all systems of desires, it applies to society the principle of choice for one man” (1971: 29). In contrast, this alternative utilitarian strategy seeks to assimilate the principle of (apparent) individual choice to the utilitarian principle of social choice by stripping the principle of individual choice of its individualism. If one accepts the latter assimilation, one can move with remarkable ease from the de-personalized principle of (apparent) individual choice to the explicitly impersonal utilitarian principle of social choice.

To counter this alternative utilitarian strategy, Rawls and Nozick need to hold that what makes it rational for a given individual to incur some cost to herself (or forego some benefit for herself) is the avoidance of some greater cost to herself (or the attainment of some greater benefit for herself). They must hold that the utilitarian principle of social choice is not already embedded in what (therefore) only appears to be a distinct principle of individual choice. They need to maintain that the rationality of prudential behavior, that is, incurring lesser costs within one’s own life for the sake of greater gains within one’s own life, is distinct from and far less contentious than the rationality of engendering lesser costs whenever doing so will realize greater gains without regard to who will bear the costs and who will reap the gains. Then they can say that the real task for the utilitarian is to transition from the rationality of prudence to the distinct and at least apparently much more contentious utilitarian principle of social choice. And they can go on to say that it is hard to imagine anyone attempting to make this arduous transition without thinking that society is itself a type of mega-individual composed of conflated individuals.

And, certainly, Rawls’ statement of the principle of individual choice presents it as a distinct (and prudential (4)) principle. “A person quite properly acts, at least when others are not affected, to achieve his own greatest good, to advance his rational ends as far as possible.” And “the principle for an individual is to advance as far as possible his own welfare, his own system of desires” (1971: 23, emphasis added). There is no hint within this statement of the principle of individual choice that the ends of others are among – indeed, are equally among – one’s own rational ends. The same note is struck when Nozick expresses his complaint against the utilitarian argument by saying of each individual whose loss is taken to provide a greater gain to others, “He does not get some overbalancing good from his sacrifice”. Similarly, Nozick parses “the fact of our separate existences” as

the fact that no moral balancing act can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a great overall social good. There is no justified sacrifice of some of us for others. (1974: 33)

Costs and benefits can be balanced against one another within persons’ lives but not across them. This is the message of the principle of individual choice. This is why the utilitarian principle of social choice is not implicitly embedded within it, and this is why one should expect at least considerable difficulty in transitioning from the principle of individual choice to the utilitarian principle of social choice.

Like Rawls, Nozick thinks that a further lesson is to be drawn from the separateness argument. The argument does not merely allow one to reject a proposed justification for imposing sacrifices on some to benefit others. It also leads us, in Rawls’ words, to affirm for each member of society “an inviolability founded on justice or, as some say, on natural right, which even the welfare of society as a whole cannot override” (1971: 28). We need to see what further lesson Nozick draws from the shared separateness argument, how Nozick draws that lesson, and why the lesson drawn by Nozick is more true to the separateness argument than is the lesson that Rawls draws.

Nozick takes “the fact of our separate existences” to entail that “no moral balancing act can take place among us.” This rejection of moral balancing undermines the utilitarian’s attempt at a positive justification for the imposition of sacrifices. However, the rejection of moral balancing does not as such establish the wrongfulness of such impositions. How then can Nozick get to the further claim that imposing sacrifices on people wrongs them? He seeks to do this by appealing to the idea that each person’s actions must “sufficiently respect and take account of the fact that [each other individual] is a separate person, and his is the only life he has” (1974: 33, emphasis added). Inflicting sacrifices on Ben fails to sufficiently respect and take account of the fact of Ben’s separate existence as a being who rationally pursues his own system of ends. The requirement that, in one’s conduct toward others, one sufficiently respect and take account of their existence as separate, purposive beings with ends of their own mandates circumspection in one’s treatment of them. It mandates moral side constraints on one’s conduct toward others. As Nozick puts it, “The moral side constraints upon what we may do, I claim, reflect the fact of our separate existences. They reflect the fact that no moral balancing act can take place among us’’ (1974: 33, emphasis added).

It is no coincidence that these claims on Nozick’s part are reminiscent of Locke’s arguments for natural moral rights in §6 of the Second Treatise. Each of us has a life of our own within which each of us seeks to advance our personal good. What is the import for each individual of this fact about all other individuals? What is the response on the part of each individual that indicates taking seriously “the existence of distinct individuals” understood in this way? The response cannot be a utilitarian disposition to impose sacrifices on some for the greater good of others – as though individuals exist for one another’s purposes. Rather, the import is a restriction on the ways in which each individual may seek to advance her ends, viz., a restriction against advancing her ends in ways that treat others as though they exist for her purposes. The existence of distinct individuals “underlies the existence of moral side constraints” because to take seriously the separateness of persons is to take seriously the fact that distinct individuals, as Locke says, are not “made for one another’s uses” (1980: §6) and as Nozick says, are “not resources for others” (1974: 33). Recall that Rawls says, “A person quite properly acts, at least when others are not affected, to achieve his own greatest good, to advance his rational ends as far as possible” (1971: 23, emphasis added). What about when others are or can be affected? The utilitarian answer is that, when others are or can be affected, one must give up the (otherwise proper) goal of achieving one’s own good and, instead, devote oneself to the advancement of the aggregate good. Nozick’s answer is that, when others are or can be affected, one must be circumspect in one’s conduct so as to avoid treating others – who each “quite properly” seek their own good – as though they are resources at one’s own disposal.

These contentions invite expression in the Kantian language of persons being ends in themselves and, therefore, not being means – or mere means – for the ends of others. According to Nozick, since each individual is an end-in-himself in the sense of having a life of his own within which he rationally seeks to advance his own system of desires or interests, each is not to be treated as a means to the ends of others; no one is to be treated as a resource at the disposal of other people. We honor others as agents with rational ends of their own not by promoting their ends as we do our own – to follow that course would be to treat ourselves as means to others’ ends – but, rather, by not sacrificing others to our ends. On this construal, the kingdom of ends is the social order in which each individual has sovereign authority over herself and recognizes each other individual’s like moral sovereignty

Nozick is concerned that his unqualified condemnation of using others as means will support anti-libertarian prohibitions, for example, prohibitions against taking pleasure in another person’s appearance or trading with another person to one’s advantage. He then rules out such implications by declaring that, for the purposes of political philosophy, we need only be concerned “with certain ways that persons may not use others: primarily, physically aggressing against them” (1974: 33). However, this restriction is ad hoc because no reason is given for why political philosophy should only be concerned with this subset of usings. If all usings of another are comparably problematic as failures to take seriously the separate existence of their subjects, then all such usings should equally be the concern of political philosophy. Nozick would have done better to explain why only certain usings of others especially offend against the fact that other individuals have systems of ends of their own to pursue, lives of their own to live. He might have argued that the usings of others that especially offend against the import of others having ends of their own to promote are those that interfere with others’ pursuits of their own good. Non-interfering “uses” – such as taking pleasure in another’s appearance or trading with a (consenting) other person to one’s advantage – are not usings in the sense that would bring them within the ambit of political philosophy.

On Nozick’s view, Jen is subject to certain moral side constraints in her conduct toward Ben because of Ben’s standing as a separate purposive being with rational ends of his own, with a life of his own to live. Ben’s correlative rights against Jen not to be treated as though he exists as a resource to serve her ends is likewise a matter of Ben’s moral standing. When Ben asserts these rights, he is asserting this moral status, and when Jen acknowledges those rights, she is acknowledging that status. It is this status that Jen honors when she is appropriately circumspect in her conduct toward Ben. This status provides Jen with a reason to be circumspect in her comportment toward Ben that is not based on the value for Jen, for Ben, or for society of her circumspection.

Jen may well have value-based reasons to be circumspect in her conduct toward Ben. For example, it may well be that attacking Ben for the purpose of enslaving him will be detrimental to Jen’s own rational ends – because Ben will fight back or because Jen would do better by establishing long­term cooperative interaction with Ben. However, such negative consequences for Jen of attacking Ben do not account for Ben having a right against Jen that she not attack him. Suppose that, faced with the prospect of Jen’s attack, Ben asserts his right not to be attacked and in response Jen says, “You are right; my attacking you would have bad consequences for me.” Ben will quite properly say, “Jen, you missed the point of my asserting a right not to be attacked. You mistakenly think that my right against the attack depends on the negative consequences (for you) of engaging in the attack. But my right does not flow from and is not hostage to those negative consequences.” As Locke points out, a farmer may have good value-based reasons not to destroy a useful cow just as a Hobbesian sovereign may have good value-based reasons not to destroy a useful subject; but in neither case is the master recognizing a right of the subject not to be destroyed (19 80: §93).

Similarly, Ben may well have value-based reasons to oppose being attacked by Jen. However, in asserting his right not to be attacked, he is not merely pointing to the bad consequences for him (or for others) of his being subject to the attack. It is Ben’s moral status, not the fact that this attack would be contrary to certain of his interests, which undergirds his right against being attacked by Jen. In short, the moral impermissibility of Jen attacking Ben is not dependent on the disvalue of that attack for Jen or Ben or (even) for society at large. This is why we can condemn any such attack without first engaging in an often complex empirical investigation about the consequences of the attack for Jen or Ben or (even) for society at large. More generally, the ascription of basic rights to people not to be treated as though they are resources who may be disposed of to advance the goals of others (or even their own goals) allows us to condemn unprovoked killing, or enslaving, or maiming of any individual without first having to engage in an often uncertain and indecisive “calculus of social interests” [Rawls 1971: 4]. All this brings out the anti-consequentialist character of Nozick’s doctrine of rights. According to consequentialist doctrines, the end always ultimately justifies the means. The Nozickean anti-consequentialist stance is that there are reasons to eschew certain means of promoting one’s goals – reasons that arise from the character of those modes of conduct and not from the disvalue of the consequences of that conduct. (Recall here the prominence of constraining principles in the thought of Locke and Hume and the felt need of consequentialists like Mill and Spencer to extract such principles from considerations of utility.)

It is common for consequentialists to maintain that it would be bizarre for there to be sound moral norms that were utterly detached from the value of what those norms protect. This is correct. However, on Nozick’s view, the case for moral side constraints that protect individuals from interference with their (non-interfering) promotion of their own ends is hardly utterly detached from the value of persons fulfilling their own system of desires or interests. For compliance with that protective moral side constraint is required in order to sufficiently respect and take account of – to honor – the value that such fulfillment has for each individual who attains it. However, since the value of others’ fulfillment of their respective rational ends need not be value that one must oneself promote, that fulfillment need not be a goal for one’s own actions. The deep feature of libertarian thinking is that the value of each person’s happiness or well-being does not mean that everyone has enforceable obligations to promote everyone’s happiness or well-being.

That each individual is a separate and independent being with ends of her own provides each of us with reason to affirm each individual’s moral rights against being subject to (unprovoked) killing, assault, maiming, or enslaving. The fact that Nozick’s separateness argument provides a unifying explanation for our strong pre- theoretical judgments that there are rights against such forms of treatment further validates that argument. Only a bit later in ASU does Nozick appeal to the idea of “moral space” and an understanding of moral rights as defining the boundaries of each individual’s moral space. “A line (or hyper-plane) circumscribes an area in moral space around an individual. Locke holds that this line is determined by an individual’s natural rights, which limit the action of others” (1974: 57). Due to this division of moral space into “mine” and “thine,” “[i]ndividual rights are co-possible; each person may exercise his rights as he chooses” (1974: 106) without interfering with any other individual’s exercise of her rights.

Consider why any proposed rights need to form a co-possible set of rights. A set of rights is supposed to specify what the right­holders must be allowed to do. However, if those rights are not co-possible, a particular action by one person may be both an exercise of her rights and an infringement on some other person’s rights. In such a case, whether the act is to be allowed or disallowed will depend upon there being a plausible doctrine that indicates which right it is better to protect. And, either there will be no such doctrine – because “no moral balancing act can take place among us” (1974: 33) -in which case the proposed set of rights will not specify what right­holders must be allowed to do. Or, there will be a doctrine that indicates which right it is better to protect. In that case, that doctrine, rather than the set of proposed rights, will determine what people must be allowed to do.

The need for the basic ascription of rights to be co-possible,- combined with the naturalness of thinking of rights as defining a moral sphere (or domain) within which the right-holder may do as she sees fit and the boundaries of which may not crossed by others without the right-holder’s permission, leads naturally to thinking of basic rights as a type of property or ownership – or a type of jurisdiction over the objects of one’s rights.

The central core of the notion of a property right in X, relative to which other parts of the notion are to be explained, is the right to determine what shall be done with X; the right to choose which of the constrained set of options concerning X shall be realized or attempted … My property rights in my knife allow me to leave it where I will, but not in your chest. I may choose which of the acceptable options involving the knife is to be realized. This notion of property helps us understand why earlier theorists spoke of people as having property in themselves and their labor. They viewed each person as having a right to decide what would become of himself and what he would do, and as having a right to reap the benefits of what he did. (1974: 171)

The most auspicious way of thinking about co-possible rights that will provide moral protection for each person is to think of those rights as property rights, as forms of ownership. And the most salient thing that each individual must have ownership over, if rights are to protect each individual in her pursuit of her own ends in constraint- compliant ways, is her own person. The first component of the moral space or domain that it makes sense to ascribe to each individual is herself, that is, her own physical and mental resources and powers.

I’ve said that Nozick deviates from Rawls in the lesson that he draws from the separateness argument. Rawls takes the lesson to be that these principles must be the ones that rational individuals would agree upon were they to bargain (in appropriate circumstances) about what principles would govern their association. Thus, for Rawls, we cannot know what principles govern our interactions until we figure out what principles (if any) all rational individuals would agree to within the circumstances that we identify as appropriate for such agreement. In contrast, Nozick does not think that we have to figure out how to characterize the contractarian “original position,” the level of knowledge and the type of motivations that individuals should be thought to have within that position, and what principles those individuals would all agree to in that position in order to ascertain, at least in broad terms, what principles of justice or natural rights are reflective of the separateness of persons.

Taking seriously the separateness of others requires that we not treat others as means to our own ends, that we not impose losses on them to advance our own purposes. Further articulation of this basic natural moral constraint on our conduct supports each individual’s basic natural right to do as she sees fit with her own person (but not, of course, with other persons). And this basic right encompasses natural rights against being subjected to unprovoked killing, assault, enslavement, and maiming. Moreover, such treatment violates one’s rights whatever the specific purpose of the party who inflicts that treatment. Nozick takes the separateness argument to delegitimize any conception of an overall social good that calls upon individuals to sacrifice and to impose sacrifices for its advancement. Imposing a loss on one individual for the sake of enhancing equality among the members of society or for the sake of enhancing the well-being of the least well-off members of society is as much precluded as imposing losses on that individual for the sake of increasing aggregate utility.

What is wrong with utilitarianism is not limited to the particular social outcome that it enshrines but extends to its more general, consequentialist supposition that, whatever the favored social end is, no one can have a right against what needs to be done to promote that end. Rawls tells us that if “the plurality of distinct persons with separate systems of ends is an essential feature of human societies, we should not expect the principles of social choice to be utilitarian” (1971: 29). However, the appropriate and more general conclusion is that we should not expect the principles that govern interactions among individuals to specify any common end or hierarchy of ends, the promotion of which is taken to justify the imposition of sacrifices upon individuals.- If the nature of society is that it is an association of distinct persons who quite properly seek to promote their discrete systems of ends, we should expect that the basic regulative principles for society are – as Hayek says – end-independent principles. That is, they are principles that do not enshrine any common, substantive end or system of ends but, rather, protect or facilitate each individual’s pursuit of her own separate and distinct system of ends. We should not expect principles, like those advocated by Rawls – that is, principles that specify how various primary goods are to be distributed among the members of society, and that rank alternative institutional structures on the basis of how extensively they realize those distributions – to be the correct regulative principles.

I want to complete the argument for the greater plausibility of the lesson drawn by Nozick by noting a couple of ways in which the contractarian project that Rawls takes to be underwritten by the separateness argument fails to “take seriously the plurality and distinctness of individuals” (1971: 29). First, the contractarian project makes whatever basic rights an individual has conceptually dependent upon it being worthwhile to others to accord this individual those rights; for it is that value to others of ascribing rights to that individual that provides others with reason to agree to them. Within the original position, individuals do not have moral standing on their own – albeit each has the moral power to withhold moral standing from others. The second and more commonly noted way in which Rawls’ contractarian project does not take seriously the separateness of persons is that in Rawls’ original position no individual is allowed to have any knowledge about who in particular she (or anyone else) is. There is no distinctness of systems of ends and no distinctness of persons. This enables Rawls to say that all he needs to figure out is what any one of these depersonalized individuals would most favor in the way of regulative principles in order to ascertain what they all would agree to. For, every equally depersonalized individual in the original position will necessarily most favor and agree to the same principles. Somewhere between Rawls’ deployment of the separateness argument and his adoption and development of the contractarian project, separate and distinct persons with moral standing of their own slip through the cracks.

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