Kinsella Libertarian Papers, Vol. 1, Part 1 (2009)

1. Auflage 2011
ISBN: 978-1-61792-503-0
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Libertarian Papers, (www.libertarianpapers.org), Volume 1 (2009), Part 1: Article Numbers 1-25. Published by the Ludwig von Mises Institute. Edited by Stephan Kinsella.

Autoren/Hrsg.

Kinsella, Stephan

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PRESENT PAYMENTS, PAST WRONGS: CORRECTING LOOSE TALK ABOUT NOZICK AND RECTIFICATION
JAN NARVESON*

The Problem Stated ACCORDING TO NOZICK (and Locke and innumerable others), what has come to be termed “distributive justice” is a matter of goods going to those who made or found them, or to those who get them from others by agreement, e.g. by buying or selling them. No other fundamental ways of arriving at ownership of anything are morally legitimate—since, by definition, the only other ways there are would involve compelling some to give goods to others, contrary to the general libertarian principle that Nozick (and many others, including the present writer) suppose to be the most fundamental general principle of morals. But of course things sometimes go wrong, and people get things by theft, assassination, fraud, and so forth. When this happens, what should be done about it? Nozick calls upon a third category, rectification. The simplest way of putting this idea is that if A unjustly acquires x from B, then A may (if necessary) be compelled to restore x to B. The idea can be made more precise: to the extent that A has illegitimately worsened the situation of B, rectification is accomplished if A brings it about that B is no worse off, given the actions done with a view to rectification, than B would have been had the injustice not occurred in the first place. This last is a tall order, and not easily accomplished in a wide variety of cases. Indeed, in conspicuously important cases, it is, in the most direct way, impossible, for in those cases, B is dead and nothing whatever can be done to make B in particular better off than he now is. And in numerous other cases as well, rectification would no doubt be very difficult. Nozick famously asks “How far back must one go in wiping clean the historical slate of injustices?” And, notoriously, he conjectures that perhaps we would end up with a modest case for something like a “maximin” principle:  assuming (1) that victims of injustice generally do worse than they otherwise would, and (2) that those from the least well-off group in the society have the highest probabilities of being the (descendants of) victims of the most serious injustice ... then a rough rule of thumb for rectifying injustices might seem to be the following: organize society so as to maximize the position of whatever group ends up least well-off in society.[1] This fact, that rectification is often difficult or even impossible, is said by many writers, and evidently also thought by Nozick himself, to be a major problem for Nozick’s theory. Colin Farrelly, for example, points to the paucity of discussion of this matter in Anarchy, State and Utopia as if it were a major fault: “Given the importance the issue of rectification has on Nozick’s entitlement theory one is bound to wonder why Nozick does not make this issue more central ...” And he goes on to assert that  To his original declaration that “taxation is on a moral par with forced labour” we must add: if and only if no considerations of injustice could apply to justify such taxation. The minimal state is only justified provided all past injustices have been rectified. What society can claim to have satisfied such a requirement? And he adds,  ...Rawls ... imposes on citizens a duty to bring about just institutions and a duty to oppose injustices. If rectification is to be taken seriously then similar duties must also be imposed on citizens by Nozick’s entitlement theory.[2] Farrelly is far from alone in voicing similar complaints—evidently most writers and most philosophical readers find them very telling. Nozick’s theory, they think, is in deep trouble if it cannot solve this problem. And note especially how Farrelly, who is far from alone, thinks that taxes are automatically called for if there has been injustice somewhere—anywhere, apparently—back up the line. In the present article, I shall argue that it is entirely mistaken to think that this is a serious “problem” for Nozick’s theory at all, that it has virtually none of the implications widely attributed to it (including, apparently, by Nozick himself)—especially, the inference to taxation as a somehow appropriate remedy—and that the tendency to think so is due to unacknowledged reliance on a wholly different theory which, after all, it was a main point of Nozick’s work, and more generally of the libertarian theory, to criticize, and to reject.
A Reminder: What Libertarianism Is Libertarianism asserts that we all have a general right of liberty, and that this is the basic right so far as the use of compulsion in society is concerned—it is, as John Stuart Mill puts it, to “govern absolutely the relations of individuals in society in the way of compulsion and control.” [Essay on Liberty, Ch. 1] This word ‘absolutely’ is a strong one. If it means what it appears to mean, then the idea is that, again as seen by Mill, the only reason why anybody (“society”) would ever be morally justified in interfering with the liberty of any person would be in order to prevent that person from interfering with the liberty of—which is to say, doing a harm to—some other person (who has not, in turn, interfered with the liberty of someone yet else). Whatever Mill’s other predilections may have been, as a statement of the libertarian idea, his is deservedly regarded as classic. It is not the point of this brief essay to try to make the Liberty Principle either plausible or entirely precise. The purpose here is only to see where rectification fits in. For this it is enough to give the general idea: namely, that we may intentionally impose a worsening on any person only in order either to prevent or to rectify some worsening that that individual in turn is or would be imposing on some other (innocent) person/s. Specifically, what we may not do is, for example, to compel this individual to give alms to the poor, to promote the local Symphony Orchestra—or to traipse off to some remote part of the world in order to save the citizens of some hapless country from the machinations of an evil dictator. All of these latter are, to be sure, fine things to do, and we should (in my view, anyway) encourage people to do them, such as by lots of credit for doing them (well), and in general to place such individuals on suitable moral pedestals. That is, as we may put it, the moral carrot. But libertarianism requires, as the very essence of the matter, a distinction between the carrot and the stick. Moral requirements, or at least, in particular, those requirements under the rubric of justice, are those that may indeed be imposed—promoted by using the stick. But the principle of liberty says that the stick may be used only for very restricted purposes—namely, just that one. One of the purposes for which it may be used is, of course, rectification. That’s what makes rectification a principle of justice rather than something else. But in pursuit of which rectification of whose injustices may the stick in question be wielded, and by whom? To this, libertarianism gives an almost alarmingly precise answer. First: anybody may use it against the appropriately guilty parties—provided that the innocent parties violated by those guilty parties agree to it, at least. Second: nobody may use it against anybody else. Both parts of this answer are absolutely essential to this theory. To emphasize one to the neglect of the other would be to distort the theory, probably beyond recognition. So: what about rectification of the injustice that person A has done to person B? Libertarianism says that A owes rectification to B, of course. But does any body else owe it? No. Does anybody owe it to B to help compel A to make the rectification in question? No. If we just contemplate the principle again, it is clear that these negative answers are the correct ones. Other persons than the guilty parties are, by hypothesis, not guilty; therefore, we may impose no costs on these other parties. That includes the cost of helping out with the detection and imposition of rectifications on the guilty parties. It might be highly advisable for such people to enlist in associations devoted to correcting wrongs, but it is not a requirement of justice as such. Since taxation is par excellence the imposing of costs on “other people”—namely, all of them!—it is therefore perfectly clear that Farrelly’s quick inference to the legitimacy of taxation in order to justify assorted instance of past maldistributions by theft or fraud, does not go through. Just what we may and should do is an important question; but whatever the answer may be, it is clearly not to do it by resorting to wholesale robbery of legions of innocents.
Does the Theory Go Wrong? That pointed out, let us now return to the “problem” for Nozick’s theory said to be created by the historical fact that people often do wrong things to others. When does a theory have a problem? A problem should be created for a theory if that theory cannot tell us, regarding a certain class of cases, what to say about it, or if what it does tell us to say about that conflicts, for example, with what it tells us to say about some other cases (or, of course, with any of the relevant facts.) Among the things a theory can say about some cases is, legitimately,...