Eden on DeLong on Nozick
John Eden writes:
DeLong’s blog on Nozick
Here are a few brief thoughts on DeLong’s piece. First, I think that he is right to emphasize that Nozick does a terrible job of honestly articulating the key part of his central argument against end-result theories of distributive justice. I would put the point more directly in the following way: Nozick fails to adequately explain why a mixed-approach to distribution – an approach involving 1) some strictly enforced rights and liberties and 2) forms or redistribution designed to ensure that the basic resources necessary to lead a dignified and productive life were provided to all free and equal persons – would violate our deepest, most defensible intuitions concerning the role (moral) rights should play in creating and maintaining stable and just political institutions.
Secondly, I think Nozick’s discussion of the relationship between individual rights and the legitimacy of political institutions in Anarchy, State, Utopia could have been much richer had he consulted some of the medieval debates about the relationship between the concept of property (dominium) and the concept of right (ius). I will not rehearse the debates in painstaking detail, but one feature, or, to speak more accurately, one unanswered question, is relevant to current debates about the (alleged) tension between protecting individual property rights and living up to the liberal democratic charge to provide a basic level of material resources for all.
The Lockean Proviso can be traced all the way back to Ulpian, who famously claimed that ‘everyone was born free under the law of nature’, which most medieval jurists interpreted to strongly suggest that slavery in particular, as well as property relationships in general, were introduced for the mutual benefit of individuals for the purpose of facilitating various forms of social cooperation. Hermogenianus went even further in asserting that capriciously conceived property rights issued in periods of war, commercial strife (uniquely valuable parcels of land being used to enrich the few at the end of the many), despotic government, and so on. This is precisely why as a matter of natural right (ius naturale) everything should be conceived as public property – property to be “held and used in common”, as Richard Tuck puts it (Natural Rights Theories, 18). In short, the Lockean notion that property rights, especially rights which apply to resources that are either scarce or cannot be readily shared, are void unless they redound to the public weal in some way, is a very old idea with a rich history of its own.
Those, like Nozick, who have appealed to the Lockean Proviso have overlooked the special original meaning of the underlying idea: while we moderns think, or at least tend to if we’re not teaching property in a law school, that legally recognized possession of something necessarily gives us ownership rights, this is a relatively new, controversial idea. Under classical law possessio and dominium were quite distinct: the former referred to what we might call an individual’s use- or occupancy-rights in an object or parcel of land, while the latter referred to civil ownership, which would in turn give an owner the further right to impose potentially insufferable constraints on the use of an object or parcel of land by other members of the commonwealth. Put more simply, on the medieval conception one can have the exclusive right to use something without owning it. Therefore, even if we accept the introduction of the Lockean Proviso into Nozick’s argument, it is not clear what his appeal to the Proviso is meant to show. It could, on one interpretation, show that we should only depart from treating property – including intangible forms such as the market winnings from the exploitation of talent in unregulated markets – as a common resource when giving control over property to certain individuals would maximally utilize (or at least be less likely to diminish) the resources at issue without having strict ownership rights. This interpretation would probably fail, not only because it isn’t really in the spirit of Locke and Ulpian, but also because Nozick wants to allow for inefficiencies in the use of resources if there are markets for the commodities of which those inefficiencies are a by-product. On another interpretation, Nozick’s appeal to the Proviso could show that strict ownership rights were necessary, on the dubious theory that in order to provide sufficient incentives for innovation and excellence, one must dangle a large wad of cash in front of a bushy tailed young lad. Whatever interpretation one favors, the central problem remains: Nozick doesn’t really distinguish between control and ownership.
The real question is not whether to take an individual’s property in the service of egalitarian social aims, thus violating liberty in the process, but rather what basic principle of distribution would make the most sense if we begin with the idea that we can only give to individuals restrictive rights to control “property”, broadly conceived as the tangible and intangible resources that can either make our lives go well or poorly, if doing so would maintain or enhance the value of that resource. So in addition to the technical difficulties one would face in trying to decide to whom restrictive discretion should be granted there are also thorny questions about what forms of discretion (control or partial control, ownership or partial ownership, full rights to winnings, or just partial?) should be granted. This latter type of normative puzzle is very old indeed, and it might be beneficial to revisit what some old dead men have to say about the nature of property and the concept of right.
posted by Lawrence Solum 7:58 AM