Nozick on Historical Entitlement, Property Rights, and the Lockean Proviso

Although Nozick labels his chapter on justice in holdings, “Distributive Justice,” he notes that this phrase is not neutral among competing theories of economic justice (1974: 149). The phrase suggests that, however an existing set of holdings has come about within a given population, it is necessary to inquire whether there is some better or more just way for those holdings to be divided within (or beyond) that population. “Distributive justice” suggests that justice is a matter of identifying and applying some formula for measuring any existing set of holdings against other available divisions and determining whether the existing holdings should be allowed to stand or should be transformed into one of those alternative divisions independent of how the existing holdings have come about. Perhaps there is such a formula, and justice requires that we abide by its determinations. Nevertheless, it is illicit to build into one’s terminology the assumption that the justice (or injustice) of holdings cannot derive from the way in which they have arisen. When Tom Brady, the New England Patriots quarterback, ends up with a much higher income from throwing footballs than I do, the justice of our very different holdings may have nothing to do with their distribution satisfying some formula for a just division of income and everything to do with people willingly paying more of their money to see Tom throw than to see me throw.

In a free society, diverse persons control different resources, and new holdings arise out of the voluntary exchanges and actions of persons. There is no more distributing or distribution of shares than there is a distributing of mates in a society in which persons choose whom they shall marry. The total result is the product of many individual decisions which the different individuals involved are entitled to make. (1974: 149-50)

In addition to presupposing that the justice of a set of holdings depends on that set according with the demands of some distributionist formula, the demand for “distributive justice” presumes that there is some “person or group entitled to control all the resources, jointly deciding how they are to be doled out” (1974: 149). “Distributive justice” suggests that the total income within a society is a fortuitous social pie – a bundle of manna from heaven – that some authority has a right and a duty to divide (or re-divide) according to some favored distributional norm.

In contrast to these presumptions, Nozick outlines a “historical entitlement” theory of justice in holdings that makes the manner in which persons have come to possess their particular holdings determinative of the justice or injustice of those particular possessions. On Nozick’s theory, individuals acquire rights to particular items (whatever their economic value may be) by obtaining them in entitlement generating ways and ipso facto acquire rights to the totality of the items acquired in these ways. The just claims of individuals to particular items do not consist in claims to certain “fair shares” of society’s holdings. Rather, just acquisition is a type of game governed by rules about what one must do to acquire entitlements. If and only if one’s acquisition arises through the performances that the rules deem to generate titles, does one gain an entitlement to the acquired object.

According to the rules of (American) football, there are various ways of scoring certain numbers of points – e.g., touchdowns, extra points, and field goals. By the end of the game, each team will be entitled to a certain total of points depending on how many times each performed diverse scoring plays. Suppose that one team ends up with 45 points and the other with 3 and someone raises the question of whether this was a just or fair distribution of points. Wouldn’t it have been more just or fair if the scores had been more equal or if the scores were reversed because, after all, the team initially awarded 3 points did try awfully hard? According to Nozick’s historical entitlement view, the appropriate response to such questions is that the only way to determine which team is entitled to how many points is for the game actually to be played; it is only through the actual playing of the game that entitlements to points accrue to the teams. The role of the referees is to enforce the general rules that constitute the game of football and, thereby, facilitate a good play of the game. The justice of the final holdings of points emerges from the rule- governed play of the gameA

Note how this approach accords with our day-to-day perspective about whether a given individual is (or is not) entitled to some particular holding, for example the earrings that she has been wearing. We ask questions about the processes through which this individual has come into possession of those earrings. Did she produce the earrings herself out of materials to which she was entitled? Did she purchase the earrings (or those materials) through a voluntary and honest transaction with their former possessor? If so, did the former possessor himself acquire these earrings (or those materials) through procedures that generated for him a right to them? Did the current purchaser acquire the funds for her purchase in a just fashion? We affirm the current possessor’s right when we have satisfied ourselves about the provenance of that object. The current possessor’s right to the earrings depends on her possession of the earrings having the proper sort of history – just as an individual’s currently having a contractual right to another’s performance depends upon the relevant contract having been actually and properly engaged.

There are three general ways in which an acquisition of some extra-personal object, for example, an acorn, a bit of arable land, a shovel, or a smartphone, can take place. First, one may acquire an unowned object, that is, a bit of raw material that has never been owned or an object that has been owned but is now abandoned. Second, one may acquire an object by transfer from its current possessor. Third, one may re­acquire an object that one has retained a right to, but which has come into the possession of another. (If one has retained the right to some object and it has been damaged or destroyed by another, one may “re-acquire” that object by extracting rectification payments from the party who damaged or destroyed it.) According to Nozick, a historical entitlement theory needs to specify what qualities acts of initial acquisition, acts of transfer, and acts of re-acquisition must have in order to engender (or preserve) entitlements in the resulting possessors to the items they have acquired.

The principle of justice in initial acquisition will articulate “the complicated truth” concerning

the issues of how unheld things may come to be held, the process, or processes, by which unheld things may come to be held, the things that may come to be held by these processes, the extent of what comes to be held by a particular process, and so on. (1974: 150)

The principle of justice in transfer will articulate “the complicated truth” that answers the questions

By what processes may a person transfer holdings to another? How may a person acquire a holding from another who holds it? Under this topic comes general descriptions of voluntary exchange, and gift and (on the other hand) fraud, as well as reference to particular conventional details fixed upon in a given society. (1974: 150)

A full statement of Nozick’s procedural theory of justice in holdings would also articulate the complicated truth about the rectification of injustice in holdings.

The general outlines of the theory of justice in holdings are that the holdings of a person are just if he is entitled to them by the principles of justice in acquisition and transfer, or by the principle of rectification of injustice (as specified by the first two principles). If each person’s holdings are just, then the total set (distribution) of holdings is just. (1974: 153)

Nozick does not attempt to formulate these complicated truths. He does not offer “… a precise statement of the principles of the tripartite theory of distributive justice” (1974: xiv). I think that there are two reasons that Nozick does not worry about the details of his principles of just initial acquisition, just transfer, and just rectification. The first is that he sees his main task to be to establish that the overall historical entitlement approach is more plausible than the overall distributionist approach. The second is that he expects his readers to share with him an inventory of commonsense views about what procedures engender entitlements and what procedures do not. So, for instance, fashioning a tool of a new sort through difficult and sustained labor upon some widely available and unowned material gives rise to an entitlement to that tool, whereas naming a continent that has not previously been named (in a European language) does not engender an entitlement to that continent.

Nevertheless, there are issues here about the capacity of philosophical reasoning to identify one specific set of rules about just initial acquisition, transfer, and rectification- that constitute the complicated truths about just acquisition. Nozick himself expresses doubt about there being, “some set of principles obvious enough to be accepted by all men of good will, precise enough to give unambiguous guidance in particular situations, clear enough so that all will realize its dictates, and complete enough to cover all problems that actually arise” (1974: 141). Also, if in addition to philosophical reasoning, “conventional details” (1974: 150) are needed in the specification of any given society’s rules for just acquisition, there are questions about how the specified rules possess the natural moral force that Nozick takes them to have. I will return to these issues in Chapter 5 when I consider Murphy and Nagel’s critique of natural rights libertarianism.

The entitlement view is a bottom-up view of justice in holdings. The basic instances of just holdings are the particular just holdings of particular individuals (or associations of individuals) – Ben’s possession of this acorn, Jen’s possession of that bit of arable land. The totality of the holdings among the members of a given society will be just insofar as the particular holdings of those members are just. To determine whether and to what degree the totality of the holdings within a society is just or unjust, one has to start at the level of particular holdings of particular agents and examine the pedigree of those holdings. If all the particular holdings of all particular agents are just on the basis of their respective just pedigrees, the totality of holdings in that society is just – whatever overall profile or pattern of holdings among those agents obtains or fails to obtain.

In contrast, on all distributionist doctrines, the justice of the extent of the holdings of a particular individual (or association) is dependent upon the justice of the societal distribution of which it is a component. The justice of any given agent’s holding flows downward to that holding from the justice of the total allocation of holdings in that society. On any distributionist view, the justice of the overall array of holdings in society and, thereby, the justice of each component of that array will be the intended consequence of institutions and policies that are designed to bring about the favored overall distribution. In contrast, on the historical entitlement view, the overall array of holdings and its justice will be unintended consequences of individuals (and associations) being free to procure and retain holdings in accordance with just procedures of acquisition.

Nozick distinguishes between two types of distributionist doctrines. There are “end­state” doctrines and there are “pattern” doctrines. Each end-state doctrine offers a formula for ranking alternative available distributions of income among individuals (or households). Consider the following available distributions:

Distribution D112109
Distribution D242213
Distribution D32088

A utilitarian distributionist (focusing on income rather than utility) will rank D2 highest on the ground that it has the greatest total income. An egalitarian distributionist will rank D^ highest on the ground that it is the most equal distribution. A fan of Rawls’ difference principle will rank Dj highest on the distinct ground that its lowest payoff is greater than the lowest payoff within any other available distribution. What makes each of these doctrines an end-state view is their shared conviction that the information provided by this sort of matrix is sufficient for determining which of the available distributions is the best (and, hence, the just) one.

According to Nozick, a deep problem for all end-state doctrines is the falsity of this shared conviction. For, surely information that cannot appear within such a matrix is essential to any sensible judgment about which of these distributions merits endorsement. Among the information that cannot appear within such a matrix is information about what means will have to be employed or what basic structures will have to be maintained in order to realize these alternative outcomes. Consider the following information. D2 is the distribution of income that arises when A is enslaved to B who employs C as his effective overseer. is the distribution that arises when A is partially emancipated and is only subject to slavery­like exploitation by B and C one week per month. And D3 is the distribution that arises when A is entirely emancipated. Thus, to opt for D2 is to opt for the means-structure of full-fledged slavery. To opt for D J is to opt for the means-structure of partial slavery. Only by opting for D3 does one avoid opting for some degree of slavery. Given the obvious relevance of this sort of information for any responsible selection of one of these distributions as the just one, any doctrine that asserts or presumes that the information available in such a matrix suffices for a responsible selection has to be deeply flawed. Note that this is not a distributionist argument for D3 being the best of the three allocations. It is an argument for attending to means – to procedures – rather than outcomes (which are all that can be reported in the matrices of the end-stater). D3 will be the just outcome if and only if, under the non­slavery structure, D3 actually emerges from the free choices of just interactions made by A, B, and C.

The second sort of distributionist approach identified by Nozick is the pattern approach. According to this approach, distributions of income among agents ought to map on to the distribution of some normatively significant trait of those agents. Each specific pattern theory selects some specific trait as the trait that income should track. The available distribution that best tracks the selected trait is the just distribution. A pattern theorist might select depth of religious conviction, steadfastness of political loyalty, or degree of moral virtue as the basis for receipt of income. Since information about the distribution of any of these traits cannot be found within the end-stater’s matrices, the pattern theorist cannot be charged with thinking that the sensible ranking of available distributions of income can proceed entirely on the basis of the information found within such matrices.

Pattern doctrines can be either non- historical or historical. A non-historical pattern doctrine will track a trait that exists in varying degrees in individuals at the time that shares of income are being assigned. For instance, the view that the just distribution is the available distribution that most allots income to individuals in proportion to their IQs is a non-historical pattern doctrine. No non- historical pattern seems even minimally plausible. A historical pattern doctrine will track a trait that has been manifested in varying degrees by individuals for some period preceding the allocation of income shares. For instance, the view that the just distribution is the distribution that most allots income to individuals in proportion to their moral desert is a historical pattern doctrine. Any advocate of a historical pattern view will agree with Nozick that all end-state views are defective because they fail to attend to historical information that is not revealed in the end-stater’s matrices. However, there remains a crucial difference between any historical pattern view and the historical entitlement approach. The historical information that the latter takes to be determinative of the justice or injustice of particular holdings (and, hence, of arrays of such holdings) is information about the processes by which that set of holdings has arisen, not information about what pattern of the selected trait has obtained among the individuals to whom income is to be proportionately distributed.

Due to this difference, Nozick’s manna from heaven complaint still applies to historical pattern theories. For, according to any such theory, the justice or injustice of particular holdings will not be determined by the actual historical processes that have produced those particular holdings. Rather, the totality of existing holdings are, for the purposes of justice in holdings, treated as simply available – again, like manna from heaven – to be sliced up or re-sliced according to some favored formula.

To think that the task of a theory of distributive justice is to fill in the blank in “to each according to his ” is to be predisposed to search for a pattern, and the separate treatment of “from each according to his ” treats production and distribution as two separate and independent issues. On an entitlement view these are not two separate questions. (1974: 159-60)

Of course, the sensible application of any such distributionist formula will take account of the effect of that application on future production and, hence, on what distributions will be available in the future – as does Rawls’ application of the difference principle. However, this attention to the factual consequences of the application of a distributionist principle is fundamentally different from taking productive (or destructive) processes as themselves morally significant in determining the justice or injustice of the results of those processes.

Two of the most important sections of Nozick’s chapter on “Distributive Justice” offer further criticisms that apply to both end-state and to pattern doctrines. (In these sections Nozick uses the term “pattern” to refer to both main types of distributionist approach.) The first of these is “How Liberty Upsets Patterns” (1974: 160-4). The title of this section may have contributed to the false impression that Nozick’s argument against pattern views is simply that liberty is in conflict with the maintenance of patterns and, since liberty should be favored, patterns should be disfavored. This impression is reinforced when Nozick says that his basic contention “is that no end­state principle or distributional patterned principle of justice can be continuously realized without continuous interference with people’s lives” (1974: 163). However, were this Nozick’s argument, any distributionist could equally well say that, once one realizes that liberty upsets patterns, one sees how readily one should be prepared to upset liberty. For Nozick’s argument against patterns not to be question begging on behalf of liberty, he needs to reveal important difficulties within the advocacy of patterns. I shall explain how Nozick accomplishes this.

In “How Liberty Upsets Patterns” Nozick deploys two nice examples. The first example involves a million fans of basketball player Wilt Chamberlain each paying Wilt an extra 25 cents out of their just distributional share of income for the pleasure of watching him play. The second involves an individual living within a socialist society who utilizes portions of (what the advocate of this society deems to be) his just distributional share and his leisure time to enhance his income through capitalist acts with consenting adults. In both cases, individuals freely deploying resources to which they are said to have just distributive claims upset what is said to be the just distribution of resources. I will employ a different, more complex, and less entertaining example that, I believe, serves a more precise statement of the internal difficulties that Nozick ascribes to all distributionist doctrines.

Nozick invites each of his distributionist interlocutors to imagine that the available distribution of income (in the form of currency or other economically valuable holdings) that she herself takes to be just has been brought into existence. For the sake of working through Nozick’s critique, let us assume that this favored formula is the ever-popular difference principle. And let us assume that the three distributions that are depicted in the next matrix are available for a society composed of four individuals: A, B, C and D.

Distribution D424252627
Distribution D527273037
Distribution D626323442


On the basis of the difference principle, our distributionist will rank D5 highest and deem it to be the just distribution. Let us suppose, then, that D5 is instituted. Nozick’s question is: what then?

His answer is that almost certainly some of these individuals will deploy resources that have been assigned to them in the name of justice in highly innocuous ways that will create new distributions that will have to be declared to be unjust by the very formula for distributive justice that assigned those resources to them in the name of justice. Here is a simple illustration of such an individual’s innocuous deployment of justly assigned resources creating a new distribution that will have to be declared to be unjust. C, working on his own, transforms some raw timber that makes up three units of his just holdings within D5 into a quaint tiny house that has a value of 18 units. Taking account of his loss of the raw timber and the three-unit cost to him involved in his labor, C’s net income rises to 42. Through this productive activity C brings a new distribution into existence, D5* – one that does not at all affect anyone else’s “legitimate share” (1974: 161) under D5. However, once D5* comes into existence, yet another distribution is almost certain to become available, for example, D7 (as specified below), which the difference principle ranks higher than D5*. For, almost certainly, it will be possible to convert D5* into D7 by imposing a new (“windfall”) tax on C that will redistribute some of his enhanced income to A and to B (and cover the administrative costs of doing so). Hence, the available distributions become:

Distribution D5*27274237
Distribution D729293637

* *

Given the availability of D7, D5* must be declared to be unjust by the very same distributive principle that, in the name of justice, required the selection of D5 over D4 andD6.

Yet, Nozick asks, how could the sort of innocuous activity engaged in by C introduce injustice into the society in question? How can the distributionist who insists on the justice of D5 maintain that the introduction of C’s productive activity transforms the economic order under examination from a just one into an unjust one? The holdings of A, B, and D are not affected by C’s productive enhancement of his own income;^ so, if those holdings were just before C’s self-generated gain, how could that gain have rendered them unjust? Writing about the Wilt Chamberlain case, in which a departure from the established just distribution takes place through exchange, Nozick asks,

By what process could such a transfer among two persons give rise to a legitimate claim of distributive justice on a portion of what was transferred [or on a portion of what was not transferred], by a third party who had no claim of justice on any holding of the others before the transfer. (1974: 161-2)

The distributionist may be tempted to say that the answer is obvious. Injustice is introduced because a departure from the pattern is introduced. However, this response is really a refusal to address Nozick’s challenge; the response simply begs the question on behalf of the view that justice is always a matter of conformity to some favored distributionist formula.

The distributionist might offer a different answer to Nozick’s challenge. She might say that C’s activity is not innocuous or not just and, hence, D5* is not the upshot of a just starting-point combined with an innocuous or not unjust action; hence, it is no surprise that D5* is not just. But, on what ground can the distributionist say that C’s activity is not innocuous or not just? It seems that the only ground the distributionist can give is that C’s activity introduces a departure from D5 which is, after all (by hypothesis), a just distribution. However, any appeal to this ground for judging C’s activity to be non-innocuous or not just must radically restrict what C – and, indeed, all individuals – are entitled to do with resources that are said to be among their respective just holdings. No one will be entitled to deploy their justly held resources in a way that is disruptive of the distribution of resources within which their allotment of holdings counts as just.

However, Nozick contends, if what one may do with the objects that are said to be one’s just holdings is restricted in this way, one is getting a lot less than it sounds like one is getting when one is allotted those holdings as one’s just share. “[W]hat was [the distribution] for if not to do something with?” (1974: 161). It turns out that “Patterned distributional principles do not give people what entitlement principles do only better distributed. For they do not give the right to choose what to do with what one has” (1974: 16 7). It is not that our C will be forbidden to convert his raw timber into a much more valuable tiny house. It’s that he may have to sell the tiny house to pay the tax bill he will receive for his injudicious use of what has been declared to be his just holding. Any distributionist stance will require continuous interference with people peacefully doing as they choose with what has been declared to be their just holdings. As Hillel Steiner puts it, ongoing applications of distributionist principles “create rights to interfere with the exercise of the rights they create” (1976: 43). This is a necessary consequence of ongoing adherence to any pattern. For, as Hayek would especially emphasize, the planners of the institutions and policies that are supposed to yield the fullest realization of some favored pattern will never be able to anticipate the ways in which individuals will discover and pursue opportunities for unilateral or cooperative improvement of their economic conditions within the regimes endorsed by those planners. (Also see “Rawls’ Critique of Libertarianism” in Chapter 5.)

Let us return for a moment to our original set of alternative distributions in order to consider a possible objection to the libertarian (especially Nozickian) stance that has been expounded in this and the last chapter.

Distribution D112109

* *

Distribution D242213
Distribution D32088

* *

Suppose that the actual distribution of holdings that has come into being (through A’s enslavement to B) is D2. The libertarian will declare this actual distribution to be unjust while also maintaining that, were D3 to have arisen (through A’s emancipation), it would be just. The objection will then be that the libertarian is engaged in precisely the sort of ranking of alternative social outcomes and trade-offs across persons that he prides himself in attacking. In the case at hand, the libertarian will be charged with saying that it is socially worthwhile for A to gain of 16 even at the cost of 14 for B and 5 for C. However, this objection is misplaced. The libertarian is not saying that D3 is better than D2. He is not engaged in ranking alternative social outcomes. Rather, he is saying that, when D2 arises through the unjust practice of slavery, it is unjust in virtue of the injustice of its genesis whereas, were D3 to arise through interactions within a society of fully emancipated individuals, D3 would be just in virtue of its just genesis.

Nozick’s section on “Redistribution and Property Rights” (1974: 167-74) also targets all versions of the distributionist approach. The key argument in this section turns on Nozick’s implicit adherence to (something akin to) the self-ownership thesis according to which each individual has rights over her own mental and physical powers, talents, time, and efforts.

When end-result principles of distributive justice are built into the legal structure of a society, they (as do most patterned principles) give each citizen an enforceable claim to some portion of the total social product; that is, to some portion of the sum total of the individually and jointly made products. This total product is produced by individuals laboring, using means of production others have saved to bring into existence, by people organizing production or creating means to produce new things or things in a new way. It is on this batch of individual activities that patterned distributional principles give each individual an enforceable claim. (1974: 171-2)

Whether it is done through taxation on wages or on wages over a certain amount, or through seizures of profits, or through there being a big social pot so that it’s not clear what’s coming from where and what’s going where, patterned principles of distributive justice involve appropriating the actions of other persons. … This process … makes them a part-owner of you; it gives them a property right in you. Just as having such partial control and power of decision, by right, over an animal or inanimate object would be to have a property right in it. … These principles involve a shift from the classical liberal notion of self-ownership to a notion of (partial) property rights in other people. (1974: 172)

Only a historical entitlement system that recognizes the rights of individuals to the fruits of their faculties, talents, time, and energy – including whatever fruits of others’ labor individuals acquire from others through voluntary exchange (or donation) – can avoid institutionalizing unconsented to infringements upon persons’ self-ownership rights.

Here, too, Nozick does not specify the procedures through which particular individuals acquire property rights to specific items. He does not argue that the enforcement of any distributional pattern will violate at least some of those property rights that will have arisen through those specified, rights-generating procedures. Rather, he simply maintains that individuals who are subjected to schemes of taxation to which they do not as individuals consent are treated as though they are (in some respects) the property of those who impose or sponsor that taxation. Suppose the agents of individuals E and F follow around individuals G and H to keep track of the incomes that they generate by their peaceful unilateral and cooperative interactions, and demand that G and H each hand over a specified percentage of their income to those agents each April 15. If either fails to comply, the relevant percentage of her income or more will be seized and the miscreant may be whipped or imprisoned.

One way of criticizing this institution would be to explain precisely how G and H, through their various peaceful actions, have acquired property rights over the items those agents demand from them. Another way – which Nozick offers in “Redistribution and Property Rights” – is to observe that this taxation procedure makes G and H the partial slaves of those agents or their principals. Suppose that G and H in fact started out as full slaves of E and F. But these owners realized that they could increase their gains from their slaves by allowing them to fend for themselves (utilizing all of their local knowledge) and merely sending their tax-collecting agents to visit G and H on April 15. Isn’t it clear that G and H would still be (at least) the partial slaves of E and F?- Can’t one reach this conclusion without providing a specific account of how G and H acquired property rights to the possessions that the agents now seize?

Suppose, on the contrary, one holds that G and H are (without their actual consent) properly subject to a tax scheme that accords with one’s favorite distributionist formula. Can one still hold that G and H have a right to emigrate into a lower tax or no tax territory? Members of the liberal intelligentsia typically affirm robust rights of emigration. Indeed, any denial by the distributionist of the rights of G and H to emigrate will bolster the contention that the tax scheme treats G and H as partial slaves. For, a denial of this right amounts to an endorsement of their captivity.^ So, Nozick expects that the distributionist will want to affirm that individuals G and H have rights to emigrate even from a nation that has institutionalized that distributionist’s favorite principle (1974: 173). Nozick then argues that, if one holds that G and H should be allowed to escape non-consensual taxation by migrating to other regions of the world, one must also hold that they should be allowed to engage in internal emigration. If people are to be permitted to leave their home territory in order to avoid such a tax scheme, then mustn’t they be permitted to disengage from that tax scheme (and its putative benefits) without having to move to another region of the world?

What rationale yields the result that the person be permitted to emigrate, yet forbidden to stay and opt out of the compulsory scheme of social provision? If providing for the needy is of overriding importance, this does militate against allowing internal opting out; but it also speaks against allowing external emigration. (1974: 173)

An opponent of internal emigration may appeal to the slogan, “Love it or leave it.” This, however, would put her in company that she would normally distain. More importantly, why must one leave it not to love it? Why must one leave in order to escape from what it would be permissible for one to escape by leaving? If individuals have a right to ignore the state that currently imposes a distributionist tax scheme on them by moving to a different territory, don’t they also have a right to ignore the state’s demand that they move in order to be ignored?- I can report that the force of this rhetorical question does drive friends of the difference principle to deny the right of productive individuals to emigrate. The argument then offered is the same as that offered by the Soviet Union on behalf of its holding its talented people in captivity, viz., the state’s investment in the raw human material under its control gives the state a right to the talents and skills it creates through that investment. Is this argument not equally available to the slave­owner who has fed, lodged, and trained up from childhood his now highly skilled slave and now claims a right against the slave’s escape?

Finally, Nozick introduces “an additional bit of complexity into the structure of the entitlement theory” (1974: 174). This is a proviso that is akin to Locke’s “enough, and as good” proviso. Or at least it “satisfies the intent behind” (1974: 177) that proviso. As we have seen in chapter 2, Locke was concerned about whether the increased incentive for appropriating raw natural material that will be present in an advanced market society will lead to so much initial acquisition of raw material that “enough, and as good” will not be left for others. I suggested in Chapter 2 that the real issue for Locke is whether the increased and intensified privatization that is present in market societies will “straiten” anyone, that is, leave that person with less opportunity to bring her self-owned powers to bear in the pursuit of her ends than she would have were private property not to have developed (or had been coercively limited in its development). Since losing particular opportunities to be the initial acquirer of some raw material or even losing all opportunity to be the initial acquirer of any raw material need not leave one with less overall opportunity to bring one’s powers to bear in the pursuit of one’s ends, even the privatization of all raw material need not straiten one.

Nozick maintains that the vast increase in types of skills that become valuable within an elaborate market economy, and in the ways that one can acquire or use improved material resources through purchase, lease or employment, and the ways in which a highly decentralized economic order make it possible for individuals to find – or create – niches that mine their own special knowledge and talents, make it likely that everyone’s opportunities will be greater than they would have been had private property not developed (or had been coercively limited). Such considerations are not intended “as a utilitarian justification of property” (1974: 177). Rather, they function to show why “the free operation of a market system will not actually run afoul of the Lockean proviso” (1974: 182).[8]

In characterizing the Lockean proviso proposed by Nozick, I have drawn upon Locke’s idea that an individual will have a complaint in justice if the acquisitions of others (along with their decisions about how to utilize their legitimately acquired holdings) will “straiten” that individual, and the idea that a person is straitened when she is so hedged in by others’ holdings (and their decisions about how to utilize those holdings) that her opportunities fall below the baseline of opportunities she would have were private property not to develop (or to be restricted in its development). I have expressed the Lockean proviso in terms of individuals not being made worse off in terms of opportunity.- In contrast, Nozick himself seems to have thought of his proviso more as a requirement that individuals not be made worse of in terms of their utility or welfare; the proviso is violated if and only if “the benefits of civilization [do] not counterbalance being deprived of … particular liberties.”

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