The distinguishing characteristic of classical liberalism from other liberalisms is its view of property rights. On the classical liberal account, a distribution of property is just if it is a consequence of just transfer, where transfer is generally just if and only if voluntary or appropriately compensatory for wrongs. As Nozick noted, this unpatterned, “side constraints” view of justice differs from the patterned, “end-state” view of justice found in Rawls, for whom property should be redistributed as necessary to maximize the position of the “representative least advantaged person.”
Nozick did not address the issue of how property may legitimately be acquired in the first place. Locke believed that just acquisition occurred through “mixing one’s labor” with the earth. Locke also had a famous proviso, that just acquisition must leave “enough and as good” for others, to avoid waste. (However, at one point in the Second Treatise Locke seems to argue that the proviso becomes a dead letter once a society invents money.)
Nozick argues that the initial distribution does not matter, because “liberty upsets patterns.” He makes this point with the famous Wilt Chamberlain example. Imagine a world in which everyone has exactly equal resources. Now suppose that one man, Wilt Chamberlain, is exceptionally talented at basketball. People will come to watch Wilt Chamberlain play basketball and will voluntarily transfer a small sum, say $0.25, to him for this privilege. Very quickly, the old pattern of equality disappears as Wilt Chamberlain accumulates resources. To re-establish that pattern would require undoing the voluntary transfers that people have made to Wilt Chamberlain.
But is Nozick necessarily right that initial distribution doesn’t matter? What about property rights in land? If one person establishes control over a vast range of productive land, then on standard libertarian accounts the owner may require virtually any conditions (s)he might like in exchange for allowing others access to that land. Thus, the landowner may require would-be tenants to yield one-third of the value of their production and perhaps to make themselves available for security duty as well. By enjoying the fruits of others’ labor, the landowner is able to continue in enjoyment of the demesne and pass it down to future generations to do the same.
Are absolute property rights in land a road to serfdom? Or may property rights occasionally be set aside for other interests? If we allow that property rights are not always absolute, does our theory collapse into utilitarianism or egalitarianism, or can we build theoretical terraces on that slippery slope?
Nozick’s own theory has some intellectual resources to address this problem. Nozick adapts the Lockean Proviso to argue that appropriations may be set aside when they literally make others with access to them worse off than they would have been had the resource remained unowned and open-access. “Setting aside” the appropriation presumably means that current distributions may also be altered, perhaps temporarily.
Consider the following two scenarios. The first comes from a debate in Liberty magazine a number of years ago; the second comes from is rather like a discussion I recall from David Friedman’s book The Machinery of Freedom (corrected per David Friedman’s comment below).
|You fall from a window of one of the top stories of a tall building. As you hurtle toward certain death, you reach out and grab a flagpole sticking out of another window, breaking your fall. The owner of the flagpole observes you clinging on for dear life and says, “I am the owner of that flagpole; let go!”
Should you let go?
|In this scenario, you are the neighbor of a mad scientist who likes to sample the atmosphere around your house and test for the presence of the DNA of other humans. He knows that you and other neighbors will sometimes pass his house or breathe in its general direction, and as a result microscopic molecules containing their DNA float over his property line, invading his property. As an extreme hypochondriac, he cannot bear the thought of this happening.
He issues a decree to the entire neighborhood, including you: No one is to venture outside and exhale, and even exhaling indoors is risky, because the microscopic particles could find their way out of chimneys and other crevices and onto his property. If anyone’s DNA is found on his property, he threatens to defend himself from the trespass by all legitimate means.
Do you have a moral obligation to stop breathing?
Presumably anyone not blinded by ideology will answer “no” to these questions, conceding that property rights are not absolute. In the former case, at the moment of your hanging to the flagpole by dear life, the scheme of private property rights makes you worse off. Thus, by Nozick’s standard, it seems you have the right to expropriate the use of the flagpole until you no longer need it. At that point, let us surmise, the flagpole should revert to its original owner, and you should make compensation for any damages to it. In the second scenario, the mad scientist is engaging in illegitimate expropriation by trying to force other people to stop breathing, which would make them worse off than they would be if the scheme of private property rights did not exist.
This application of the Proviso is attractive because it imports some utilitarian-esque concerns (the scheme of private property rights must make everyone better off than they would be in the primeval world of open-access commons), while retaining the intuitively desirable features of libertarianism, most notably the right to dispose of your property as you see fit under almost all circumstances. Nevertheless, it requires giving up the fiction of absolute property rights and perhaps even opens the door to a kind of universal income guarantee as compensation for the private appropriation of land. Enter the left-libertarianism of Michael Otsuka, Hillel Steiner, Peter Vallentyne, and Philippe Van Parijs.