Ken Parish links to various critiques of Nozick’s arguments in support of libertarianism. Broadly speaking, Nozick claims that libertarianism is right not because it produces good outcomes (he doesn’t argue one way of the other on this) but because a requirement for just process implies that property rights should be inviolable. Nozick’s position has been criticized in various ways, often focusing on the fact that he never specifies a just starting point. I want to present a different argument: that given any plausible starting point, Nozick’s approach leads to the conclusion that the status quo, including taxes, regulations and other government interventions is just. I illustrate this point with a story.
Once there was an island, whose sole inhabitant was named William. For Nozickian purposes, we’ll assume that William was had justly acquired ownership of the island at some time in the past.
William invited various other people (head tenants) to come to the island to live and to take up land, on the basis of an annually renewable agreement which stipulated that
(i) William could resume ownership of the land whenever he wished
(ii) Each year, William could demand whatever payment she wished, taking account of the tenant’s income, needs and so on if she chose
If agreement could not be reached, the tenant could leave taking with them whatever property they had brought with them in the first place, and anything William chose to give them.
This arrangement went on for some time, from generation to generation, and some of the tenants brought in subtenants under a variety of arrangements. Eventually, some difficult negotiations led one of William’s heirs to make an agreement with the (head tenants) that the terms of their leases would not be changed unless a majority of them, acting as a body corporate, voted in favour of the change.
Eventually, a later heir agreed to transfer her rights almost entirely to the head tenants, in return for several nice houses and a guaranteed annual income.
Time went on, the head tenants disagreed among themselves, and some sought to strengthen their position by extending membership of the body corporate to some of the subtenants who they thought would take their side. They succeeded in gaining majority agreement for this proposal as required under the original articles of the body corporate. The new members in turn voted to admit others, until, in the end, every adult in the island was a member of the body corporate.
At this point, it became evident that the members of the body corporate needed schools, hospitals and so on. Some members thought it would be best ifthe body corporate charged higher rents and provided the schools and hospitals free of charge. Others thought that it would be better for everyone to pay separately, and that it would not be fair that some should pay more in rent than they received in benefits.
Some of the latter group heard of a Professor Nozick who had written a book on this topic and he agreed (at a mutually acceptable price) to provide his advice. Here is what he said.
As I proved in Anarchy, State and Utopia it would be unjust for anyone elseto take your property or the income from your property to serve any purpose. however beneficial. However, having looked at the history of your island, it appears that none of you have ever owned any property absolutely, excepting the long-decayed clothes in which your ancestors arrived. The property was justly acquired by William in the first place and has been justly transferred to the body corporate. Both William and the body corporate have dealt with you and your ancestors on a basis of mutual consent.
You may, of course, have arguments to show that individual provision of schooling and health care would produce better consequences than provision by the body corporate. But I disdain such arguments, and care only about the justice of processes. If you can’t convince the majority of the body corporate, you are justly obliged to pay the rents they demand.
Having secured the endorsement of Professor Nozick, the body corporate went ahead and raised the rents. At the same time, after reading the works of various other professors, they decided it would be a good idea to change the name of the body corporate to Parliament and to call the rents ‘taxes’.
Of course, this story isn’t true. But if you don’t worry about thejustice of the original acquisition (and Nozick never does), and ignore a variety or more minor injustices along the way, it’s a pretty accurate summary of the history of property rights in England since 1066 or, with minor modifications, Australia since 1788. The only people who have legitimate objections to state powers of eminent domain, taxation and so on are the heirs of those dispossessed in the original acquisition (theoretically, English Saxons and, more relevantly, Australian Aborigines).
The general implication is that, in any society with a constitutional history, the only set of property rights that can be supported by a Nozickian analysis is the status quo, including state powers such as the power of eminent domain and the power to tax. Any attempt to separate property rights granted by the state from the limitations associated with these grants is nonsensical in terms of Nozick’s analysis of process.
John Quiggin 
Am I right in asserting that Nozick’s libertarianism requires a ground zero of just rights to property? eg in Australia, would he prefer that now is Year Zero rather than, say, 1769. In other words, how long must injustice be past before it can be ignored for his purposes?.
have had ‘ground-zero’ buzzing round the noodle all day, so will go with that.
justice – and injustice – are perpetually ‘ground-zero’ events whether between individuals or collectives. wanted to pound it into Howard’s head when he found it inadvisable to say “sorry”, thus compounding the original injustice by refusing to do whatever might be required to make some formal atonement for the past actions of the tribe of which he is a member and a living representative. he, too, argued in defense of the status quo having no meaningful past or future. justice, or injustice requires a consensus as to what is right, or wrong – always subject to the effects of the wildcard – “might makes right”. assuming a consensus – violation of the consensual rules has a qualitative impact, plus or minus. it is not a legal problem so much as an emotional reality. howard, and indeed, the high Churches put justice through a legal filter and count the costs of doing the right thing. a variation on protection of property rights.
major problem with that position is that land etc are essentially finite – thus the day will come when very few have meaningful property rights (rents! cost-of-living! literally, the ‘daily bread’) – what relationship between consensus and status quo will then obtain? the democratic process is perhaps the only process through which consensus might be continuously renewed from generation to generation and – if need be – the operational rules be modified so as to provide for ongoing social stability. the potential of this process can’t be realized, however, if the leadership of the time are so emeshed in the various rewards of status within an existing status quo as to be rendered incompetent to reconise significant changes in the welfare of those they are charged to represent. i sometimes wonder what election results would look like if a valid vote could be made for “none of the above”. if ‘none of the above’ received more than 50% of the primary vote…? what of consenus then? (any flavour you like as long as it’s vanilla – or imitation vanilla!)
as to property, and property rights. not so many years ago, aged 50, living in Adelaide – did a lot of walking and busing ‘cuz I didn’t have a car – walking through surreal landscapes of arterial roads chock-a-block with loud dangerous machines – feeling that crossing the road was like having to cross over a raging river without a bridge, and walking through a land where everything was owned, but not a bit of it mine. every home a castle, sitting in space that had ceased to be a ‘community space’. the ‘status quo’ of qualitative life for the have-nots. community sense so diminished in one generation? two? what of the next? those born today? what would the new consensus be, if the question were seriously explored? libertarians don’t have the answers because – with justice – they assume there will always be survivors, always be winners. survival of the fittest. overlooking the reality that the status quo itself is a powerful selective mechanisim. and that the system as a whole must retain coherency for relative status to be sustainable/meaningful. today, the ‘system’ refers to the planet, and all of its peoples. ground-zero is everywhere and everyone and everywhen. was, is, and evermore shall be so. (amen)
As the debate over at Crooked Timber shows, the ground zero problem is indeed crucial.
John,
Of course, your parable assumes a (consensual)social contract, and is thus subject to all the usual arguments against such an analysis, from critiques of Hobbes onwards viz. assertions of free, informed consent of the governed in a nation state situation are stretched to say the least. Thus, while your parable certainly involves taxation flowing from an unbroken chain of “just” transfers of property rights and therefore doesn’t offend Nozickean principles, that doesn’t say anything very much abour whether taxes in a real life nation state are supportable under Nozickean principles.
The main point about Nozick, I think (as you point out above), is that there ain’t no such thing as a society where all (or even most) initial acquisitions were “just” even on Nozick’s somewhat truncated defintion. Thus, Nozick’s ideas paint an interesting fantasy world which neither justifies nor explains anything in the real world. Even Nozick himself partly conceded this, in that he honestly conceded that application of his principles would result in most land in the US being returned to the Indians. Presumably he would have made a similar concession for Australia. Strangely, you seldom hear libertarians talking about this aspect of Nozick.
It is true that, given a belief that Howard owns all of Australia – then we are living in a libertarian world. My preference is to believe that the thing we all call ownership actually is ownership. That is, I own my car.
As for the issue of the ‘starting point’ – I think common law supplies us with some information about how long you have to homestead something before it becomes yours. Not perfect… but better than a slap in the face with a wet fish.
24601, your reliance on common law doesn’t help at all. The same common law gives the state a power of eminent domain and a power to tax. As several commenters have pointed out by now, you can’t rely on rights granted by a particular state and then try and reject the limitations imposed on the same grant. If you want a Nozickian basis for libertarianism you have to begin by throwing everything, from cars to clothes into the pot and reaching a just starting point.
And even then, there’s no reason why the starting point couldn’t leave lots of collective property rights such as a power to tax. It would be up to the libertarians to convince others that this was a bad idea.