Distributive Justice: Nozick on Property Rights

John Exdell

Ethics, Vol. 87, No. 2 (Jan., 1977), 142-149.

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Discussion
DISTRIBUTIVE JUSTICE: NOZICK O N PROPERTY
RIGHTS

John Exdell
Kansas State University

Defenders of capitalism have always had difficulty establishing the justice of

wealth and income distribution in a free market system. Some, like Milton Fried-
man, d o not even make the attempt. They take the position that free market
distributions are arbitrary from the standpoint of justice. O n their view economic
institutions are justified only as a means to other morally desirable ends, such as
economic efficiency, personal liberty, and the effective exercise of free speech.'
Others, however, still cling to the idea that a truly competitive economy will
distribute wealth and income fairly by establishing a rough correspondence be-
tween productivity and economic reward.' The weakness in this position has long
been obvious. Leaving aside the problem of inherited wealth, income will match
personal desert in a free market economy only if contribution to profits measures
contribution to the social good. Needless to say, this is too often not the case.
Robert Nozick's Anarchy, State and Utopia fills the breach with a carefully
developed and comprehensive theory of distributive justice.' Nozick does not rely
upon the concept of personal desert, nor does he attempt to show that free market
institutions are needed to secure valued ends. His theory rests instead upon the
principle, enunciated by Kant, that one man ought never to be dealt with merely
as a means to the purposes of a n ~ t h e r . T~ o a great extent Nozick takes our
commitment to this principle for granted, as well he might, since upon reflection
most of us would count it among our firmly held convictions. Nozick's strategy is
to bring to light the implications of this commitment. He argues with great skill
that this principle alone establishes the right to buy, sell, keep, and bequeath.
Other moral notions-for example, equality, desert, the greatest happiness, or the

1. Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962),
pp. 16448; see also Friedrich Hayek, The Constitution of Liberty (Chicago: Henry Regnery Co., 1960),
pp. 93-102.
2. R. W . Baldwin, Social Justice (Oxford: Pergamon Press, 1966), chap. 4; see also Irving
Kristol, " 'When Virtue h s e s All Her hve1iness'-Some Reflections on Capitalism and 'The Free
Society,' " Public Interest, no. 2 (Fall 1970), pp. 3-15.
3. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974). Chap. 7,
entitled "Distributive Justice," was first published in Philosophy and Public Affairs 3, no. 1 (Fall
1973): 45-126.
4. Ibid., pp. 3(t33.
 143 Discussion

common good-cannot justify altering wealth and income patterns when these
result from the ideal functioning of a free market economy.
In order to make his case, Nozick must show that the Kantian imperative
entails a natural right to hold property in land and natural resources. It would then
follow that (except in rare circumstances) private owners are entitled to whatever
income they earn from their holdings and that the distribution of these resources
is justly determined by ability to pay. Thus on Nozick's view we are forced to
choose between our commitment to the principle that men may not be used as
means and the view that land and resources should be managed for the common
good.
I will argue in this paper that we face no such dilemma. A careful look at
Nozick's argument reveals that the Kantian imperative does not clearly entail the
right to own land and natural resources. Indeed a very plausible application of the
imperative is compatible with the doctrine that land and resources are communal
property. If this is correct, Nozick's theory fails to justify economic distributions
produced by a system in which natural resources are privately owned.

The paradigmatic use of people as means occurs under the institution of

slavery. If slavery is wrong it is not because slaves must always be tormented by
their masters. Some may not be. In any case, even a well-treated slave is treated
unjustly, for he is an article of property, something to be used to accomplish the
purposes of others.
It is not at all obvious, however, what other political judgments follow from
a commitment to the Kantian imperative. W e may not conclude, for instance, that
taxing the rich to give to the poor uses the well-to-do as means to the ends of
others and is therefore wrong. A judgment of this kind would require us to show
first that the existing distribution of wealth is just-that it was not itself brought
about by violations of the imperative. If Nozick's theory is to succeed, therefore,
he must formulate principles which identify the morally legitimate means of
coming to own things. Moreover, these principles must be deduced from the
injunction that no one may be used as a means to the purposes of another.
Nozick proposes two such principles. The first-called the "principle of
acquisitionm-identifies the way in which an individual obtains the moral right to
holdings previously "unheld" by others. Nozick finds this principle in Locke's
Second Tredtue of Civil Government, where it is explained how individuals may
acquire property in "the fruits of the earth" as they are found in their natural state.
According to Locke, an individual comes to own such things when he has mixed
his labor with them: "Every man has a property in his own 'person.' This nobody
has any right to but himself. The 'labor' of his body and the 'work' of his hands,
we may say, are properly his. . . . For his 'labor' being the unquestionable proper-
ty of the laborer, no man but he can have a right to what that is once joined to,
at least where there is enough, and as good left in common for others."'
Philosophers have long puzzled over this passage. How exactly do I join my

5. Locke, Two Treatises of Government (New York: Hafner Publishing Co., 1947), p. 134
labor to the acorns I gather from beneath the oak? And why, mysteriously, does
the joining make the acorns mine? Nozick's explanation is by far the most plausi-
ble yet offered.' H e notes that having a property right in something means having
the right to decide what shall be done with it. Then he suggests: "This notion of
property helps us understand why earlier theorists spoke of people as having
property in themselves and their labor. They viewed each person as having a right
to decide what would become of himself and what he would do, and as having a
right to reap the benefits of what he did."'
Taken in this way, Locke's reference to having property in oneself represents
his acceptance of the Kantian imperative: persons have a right to pursue their own
ends; they may not be forced to act, to labor, for the benefit of others. This
granted, the right to keep the fruits of one's labor follows as a simple corollary. If
someone steals the vegetables you have raised in your garden, he has acted on the
maxim that your efforts may be used, without your consent, to serve his own ends.
H e has, in effect, treated you like a slave.
Note, however, that in the passage above Locke attaches a qualification to the
labor principle. Labor confers a property right only "where there is enough and as
good left in common for others." This would seem to place severe limitations on
the amount of resources that may be appropriated by an individual whenever
demand exceeds supply. Nozick, however, ingeniously avoids this conclusion. H e
takes the proviso to mean only that one may not acquire property in something if
one's ownership would harm others. That is, no private appropriation is legitimate
if it worsens the situation of others then deprived of the opportunity to use freely
what has been removed from its unheld state. So understood, the proviso will not
normally invalidate private holdings even in conditions of scarcity. For it is a
virtual certainty that people are better off under a system of private property than
they would be if what is now privately owned were not owned at ~11.' Indeed this
would fail to be true only when the supply of a basic commodity-for example,
fuel or food-was drastically reduced by some catastrophe. In that event, those in
control of the remaining resources may be prevented from charging intolerably

6. Karl Olivecrona ("Locke's Theory of Appropriation," Philosophical Quarterly 24, no. 96

Duly 19741: 224) contends that mixing one's labor in a thing is a way of extending one's personality
into it. Hence when one's property is stolen one experiences this as "an attack upon the personality
itself." He never explains how one can extend one's personality into acorns by gathering them, to use
Locke's example.
7. Nozick, p. 171.
8. O n p. 177 Nozick explains: "Here enter the various familiar considerations favoring
private property: it increases the social product by putting means of production in the hands of those
who can use them most efficiently (profitably); experimentation is encouraged, because with sepa-
rate persons controlling resources, there is no one person or small group whom someone with a new
idea must convince to try it out; private property enables people to decide on the pattern and types
of risks they wish to bear, leading to specialized types of risk bearing; private property protects
future persons by leading some to hold back resources from current consumption for future markets
. . . and so on." These considerations are not intended as a utilitarian justification of private
property. Rather they serve to counter the objection that appropriation in conditions of scarcity
causes injury and is therefore illegitimate.
high prices. Thus, in Nozick's theory, Locke's proviso serves as little more than a
catastrophe clause appended to an otherwise unlimited right to profit from the
private control of natural resources.'
Nozick's second principle-the "principle of transferx--explains how indi-
viduals may acquire holdings previously "held" by others. The right not to be used
as means to the purposes of others entails that we may do what we want with our
skills, our labor, and the products thereof. W e can give them away, trade them, or
keep them for ourselves. Hence we might say: "From each as he chooses." The
principle of transfer-"to each as he is chosenx-is simply the other side of the
coin. Things rightfully held by others become yours when others have freely
transferred them to you in the exercise of their right to liberty.''
The principles of acquisition and transfer together constitute the criterion of
a just distribution of wealth and income. A just distribution results when everyone
has obtained his possessions by the means prescribed in these principles. There is
only one exception: when the prevailing distribution, even though produced by
legitimate means, is influenced by previous distributions that were not. In that case
the historical inequities require adjustment of some kind in accordance with spe-
cial "principles of rectification."
This qualification aside, the political implications of Nozick's theory are
clear. Taking from someone what he has acquired by his labor, or by transfer,
violates a fundamental right not to be treated as a means to the purposes of others.
Redistributive policies aimed to correct inequalities produced by a free market
economy are therefore illegitimateeven when the ownership of land and natural
resources is in private hands.

The distinction between things "held" and "unheld," clearly central in

Nozick's theory, seems obvious and easily illustrated. The shoes I am wearing are
held. The fish in the Mindanao Deep are not. If you catch a fish out of the Deep
it is yours. But no matter what you do to my shoes, they are still mine unless I
give or sell them to you. Thus the theory seems to rest on a familiar contrast
between things that already belong to people and things that anyone may acquire
for himself by his own efforts.
But why exactly are my shoes "held" while the fish in the sea are not? There
are several possibilities: (1) the shoes are in someone's possession, but not the
fish; (2) the shoes, but not the fish, are legally owned; or (3) someone has an
exclusive moral right to the shoes but no such right to the fish.
The first interpretation must be rejected. Otherwise, under the labor principle
of acquisition, it would be possible to acquire the right to an object that rightfully
belonged to someone else. For example, suppose someone steals your automobile
and then leaves it. I find the deserted vehicle parked in an empty lot and make

9. Ibid., pp. 178-82.

10. Ibid., p. 160.
 146 Ethics

some improvements upon it. If "unheld" meant "not possessed," then your desert-
ed car was unheld, and in virtue of my labor it became mine. Clearly this will not
do.
Neither can "unheld" be taken to mean "not legally owned." Imagine a
Chinese family settling in a mountain valley in Siam to farm hitherto unoccupied
and uncultivated land. If Siamese law forbids Chinese people to own land, then no
matter how hard they labor upon their plot it is not legitimately their own. It
remains "unheld," and others are morally free to take it for themselves. By the
same token, if the king of Siam is the legal owner of all territory within his
kingdom no one could then gain the moral right to virgin land by mixing his
labor in it. Everything is already held. Of course, these are just the kind of legal
restrictions upon liberty Nozick's theory is designed to condemn.
Thus the third interpretation remains as the only one compatible with a
plausible theory of property rights. Unheld things are those which are unowned in
a moral sense-things to which no individual or group has a moral right to claim
as property. Taken in this way, the principle of acquisition must read: one acquires
property in things with which one mixes one's labor-provided that no one has a
moral right to them already.
Once this clarification is made, however, a serious gap in Nozick's theory
comes to light. W e cannot know when a person is entitled to something under the
labor principle unless we can say that the item was previously unheld. Now if
unheld meant "not possessed" or "unowned," this would be a fairly simple ques-
tion of fact. Hence we could confidently state that the shoes I am wearing are held
and the fish in the sea are not. But, it turns out, something is unheld only if no
one has a moral right to it. Thus before Nozick's principle of acquisition can ever
be applied, an addztional moral judgment is required.
The problem comes into focus if we consider how people might acquire
original rights to land and natural resources. Nozick would probably have us
imagine the pioneers moving across the landscape, settling in empty territory, and
transforming it into productive farmland. But, again, why should we take for
granted that before they arrived the land was unheld? Even though it was
unowned and unpossessed, we might still take the view that someone-the Ameri-
can people, perhaps, or even all mankind-then had (and still has) the moral title
to it.
Hence, if his defense of private ownership is to succeed Nozick must estab-
lish that resources are held only if at one time or another someone has mixed his
labor with them. It is not easy to see how this can be done. Let us grant that
Nozick has correctly deduced the principles of acquisition and transfer from the
principle of liberty. In that case he has shown us two ways by which one may
legitimately come to own property. But he has not proved that these are the only
origins of legitimate property rights, or even that all property rights have origins.
Lacking this proof, however, we cannot know when something is unheld, or when,
therefore, the principle of acquisition entitles an individual to holdings in land and
natural resources.
 147 Discussion

The doctrine that land and resources are collectively held stands as the most
prominent rival to Nozick's theory. If this alternative proves to be indefensible,
Nozick's position is strengthened considerably. Nozick himself raises only one
objection to the idea of communal holdings. H e addresses proponents of the
doctrine with the following challenge: " W e should note that it is not only persons
favoring prrvdte property who need a theory of how property rights legitimately
originate. Those believing in collective property, for example those believing that
a group of persons living in an area jointly own the territory, or its mineral
resources, also must provide a theory of how such property rights arise; they must
show why the persons living there have rights to determine what is done with the
land and resources there that persons living elsewhere don't have (with regard to
the same land and resources)."" Nozick is asking here that adherents of the
communalist view explain, for example, how the American people can claim the
Kansas wheat fields as their own. Why should we not say instead that this treasure
belongs, say, to the people of Venezuela? One may be tempted to reply: "The
American people can claim the wheat field because they are the ones who have
invested their lives and fortunes in the development of the land and resources
within their national boundaries." T o take this view, however, is to accept the
Lockean principle of acquisition. And then one can be forced to concede that it is
not, after all, the American people who are entitled to the Kansas wheat fields, but
those individuals who did in fact invest their labor in the development of these
lands, or who purchased them from those who did. Thus it is difficult to see how
we can reject a Venezuelan claim to American natural resources without accepting
a principle that justifies private ownership. Communal ownership is squeezed out
of the picture.
This is indeed a formidable argument. If one were to try to meet it head on,
he would have to show that there is something morally unique about political
communities, something perhaps in the forms of human cooperation that occur
within them, which gives them a right to control resources inside their bounda-
ries.'* I rather doubt that this can be done. There is, however, a less direct response
to the objection which allows us to maintain the doctrine of communal ownership
as a moral alternative. O n e may take the view-as have many socialists-that the
earth's land and resources are held by mankind. If one could have one's way,
American wheat and Arabian oil would be divided equitably for use by the world's
population. Unfortunately one cannot have one's way. Given the state of
mankind's political institutions, there is presently no hope of establishing this
form of distribution and management. The best we can do, therefore, is to affirm
the doctrine of collective holdings within political communities. W e come closer
to the requirement of serving the good of all men if nations act on the principle

11. Ibid., p. 178.

12. Nozick denies that cooperative enterprise generates special principles of distribution (see
pp. 9-5 and 183-89 for his discussion of this issue).
 that resources under their control are jointly held by all their citizens and not by
private individuals.
Another objection to the communalist view is likely to arise. It may be
argued: "We take it for granted that the earth in its natural state is unowned-and
properly so. The notion that it is held collectively, either by mankind or by society,
leads to absurdity. For example, we would then have to say that our pioneer
ancestors needed permission from society before venturing forth to settle vacant
territories. Lacking that, they were usurpers. W e would also conclude that those
who now own the nation's farms and oil wells are, as it were, mere tenants, whose
lease may be summarily terminated without injustice by an act of the general will.
A view that leads to such obnoxious conclusions must be rejected. Nozick's as-
sumption-that virgin land and natural resources are unheld-remains as the only
rational alternative."
The mistake in this argument is exposed if we keep in mind that the "social
ownership" discussed here is a moral and not a legal concept. T o say that land and
resources are collectively held in this sense is to say, essentially, that mankind or
society has a moral right to oversee their use in the interests of the common good.
In some circumstances this right is entirely compatible with the legal institution of
private ownership. This would be especially true when social or technological
conditions make collective use impossible. Private ownership would then be justi-
fied as the only means of putting communally held resources to use for human
benefit. If placed in private hands, however, use of these resources may be regulat-
ed, when necessary, for the public welfare. Private owners may be required to
conserve them for posterity and to manage their operations so that the public is
provided with an ample supply of fuel and food. Society may see to it that those
who control these resources do not profit excessively at the public's expense. Most
importantly for a theory of distributive justice, we should want to insure that the
products of these resources are equitably divided among the populace to whom
they belong.
The communalist position entails, to be sure, that a majority has a right to
socialize natural resources. It does not imply, however, that a policy of socializa-
tion is always morally sound or that it may be justifiably accomplished without
offering compensation to those who are expropriated. For even if private owners
do not have a right to communally held resources under Locke's labor principle,
they may still have other moral claims which their fellow citizens may not casually
disregard.
There is nothing at all paradoxical about this. Suppose a group of people
jointly own a large area of forested land which they use in various ways for their
private enjoyment. One of the owners has for a great many years cultivated a small
garden which, unfortunately, lies in an area which the others wish to clear for a
cow pasture. W e may very well agree that the majoritv has the right to force the
gardener to give up his cherished plot. But this does not commit us to the view
that it is morally right for them to do so, or that they may do so without offering
compensation for his loss. At the very least the majority should show some regard
for the gardener's sentiments and long-standing expectations. Hence, even if their
taking the plot away does not violate his rights, it may well ignore an important
though less stringent obligation to be simply decent and to give humane consider-
ation to the interests of others.
These arguments in defense of the doctrine of communal holdings do not
show that it is superior to the position developed by Nozick. They do establish, I
believe, that the doctrine can be entertained as a rational alternative to the thesis
that land and resources unmixed with labor are unheld. Moreover, those who take
this alternative may still accept the principle that men may not be used as means
and that, in consequence, they have a right to the fruits of their labor. They need
only contend that a necessary condition for applying the principle (viz., that what
is labored upon must be unheld) is unmet in the domain of land and natural
resources.

Nozick tries to lead us from a commitment to Kant's principle to the position

that (barring the influence of historical inequities) distribution in a free market
capitalist economy is inherently just. T o accomplish this he must show that the
right not to be used as a means entails a further right to acquire property in land
and resources. This can be done only on the assumption that land and natural
resources unmixed with labor are unheld. However, if "unheld" qualifies those
things to which no one has a moral right, as it must, this assumption is unfound-
ed. For the view that land and natural resources are held inalienably by mankind or
by society, stands as a rational alternative to or restriction upon the doctrine that
they may be privately appropriated under Locke's principle of acquisition. Adopt-
ing this perspective does not require us to condemn private ownership as a legal
institution. It does imply that the private control of natural resources is justified
only if it serves the common good. At least in this respect the radically conserva-
tive political implications which Nozick attempts to deduce from the Kantian
imperative are avoidable.