Episode 104: Robert Nozick’s Libertarianism

0:08 Mark: You're listening to the Partially Examined Life, a philosophy podcast by some guys who at one point set out to do philosophy for a living, but then thought better of it. Our question for episode 104 is something like what are the appropriate limits of government power? And we'll be discussing Robert Nozick's Anarchy State and Utopia from 1974, specifically chapters one through three and seven. You can join the discussion, get a link to purchase the text, and lots More information@PartiallyExaminedLife.com this is Mark Linsenmayer speaking to you from Madison, Wisconsin.

0:36 Seth: This is Seth Paskin in Austin, Texas.

0:38 Wes: This is Wes Alwan in Naples, Florida.

0:40 Dylan: This is Dylan Casey in Middleton, Wisconsin.

0:43 Stephen: This is Stephen Metcalfe in Ghent, New York.

0:46 Seth: Welcome, Stephen.

0:48 Dylan: Welcome back.

0:48 Wes: Thanks for doing this again.

0:50 Stephen: Thank you so much for having me back. It was a blast last time.

0:54 Mark: Well, let's make this point only once and then we will not for the rest of the discussion refer to the fact that this is our the only episode that we lost. It was episode 94 originally, and we had to quickly record a different topic for that episode because the recording was toast and now we record multiple backups on multiple computers and so that will never happen again. This will be a magical experience because it will be extra practiced and even though we probably only then re looked at the text for five minutes, don't

1:23 Dylan: undermine the virtue of it, Mark.

1:26 Stephen: Also, I think of this as the quarterly meeting of the Robert Nozick.

1:34 Mark: I gotta say, when I was reviewing for this time, I had a lot less rage in me because I was only trying to do just a few points. Like I don't think I focused enough on his critique of Rawls last time. I didn't have the specifics ready to hand, so I was just looking for that specific stuff and looking over notes and could do it in a very dispassionate way and didn't have, you know, 150 pages of reading behind me feeling like I was banging my head against a wall. Any other experiences, attitudes going into this?

2:04 Seth: I was able to spend a little more time trying to sort through some of the finer points as opposed to just try to understand the broader outline of the argument. So I spent a little more time trying to get, for example, like I really didn't quite get side constraints the first time, so I spent some extra time kind of looking at that.

2:22 Mark: Well, we should point out that this is our first episode in a while to have a Precog by Seth and that's because you recorded it many months ago. And so we're posting it that one, which mostly focuses on the beginning of the book, which I think we're gonna maybe try to jump ahead to get to the meat this time and not talk about anarchy so much.

2:41 Dylan: But how would people know about that since it was all lost to the bitter, broken pieces of a disk drive in a magnetic cacophony?

2:52 Mark: It involved vampires, I believe. Well, so Stephen is a big celebrity in the world of Nozick because you wrote an article a few years ago for Slate for which you do a podcast and write lots of things. So you wrote the Liberty Scam, which I see got a lot of Facebook shares.

3:11 Stephen: Yeah, it was very widely shared, which was good, because prior to that, my most shared Slate piece was a review of Ice Cream makers. It's nice to have something of substance be your identifying marker as a journalist.

3:28 Mark: The 2011 copy I just pulled up, it says three 3k Facebook shares and only 6 comments. Only 6 people had something to say about it.

3:38 Seth: Something seems wrong about that.

3:40 Mark: Maybe that's not the issue.

3:41 Wes: Well, they changed over there. That can't be right.

3:43 Stephen: It got thousands and thousands. I mean, it got a lot of comments, believe me, and I think maybe three positive comments.

3:52 Seth: Did you feel any compulsion to respond to any of those comments? Or is it you put it out there and then you don't engage via the forum?

3:58 Stephen: There was an error of fact in the original piece that I was embarrassed by. I misattributed a quote to Keynes that I think was actually Galbraith. I can't remember.

4:09 Mark: He was bastard.

4:11 Stephen: I know it was this sloppy note taking, but it was an excuse for someone.

4:15 Wes: That's right. Yeah.

4:16 Stephen: To really sniff at me. And I got sniffy back. And was subsequently given a very good piece of advice by an older journalist, which is never respond. And I learned my lesson. I probably won't ever really respond again.

4:28 Mark: Well, it's a good idea to have some factual mess up right here at the top of the program so that defensive libertarians can just dismiss us as ignorant. So I'm going to say Nozick, I think he died in a car crash.

4:43 Wes: He died in a motorcycle accident.

4:44 Mark: Yeah, I was gonna say the problem is that he was Belgian and he

4:47 Stephen: wasn't wearing a helmet on the motorcycle.

4:50 Dylan: So you'd have to tell. You have to tell Stephen about this thing, Wes, about your debacle.

4:55 Wes: I told just. We did a Camus episode where I said that Camus died in a motorcycle accident, was really a car crash. And we heard endlessly about that for Years, you know, anytime someone, especially from France, happened on the podcast, get this very stern correction, as if this were the only important subject of debate for the whole podcast. Not anything Camus was actually saying. So it revealed what a bad scholar I am not. I had Wikipedia right there in front of me.

5:26 Seth: It did open our eyes to the fact that podcasting as a medium, it travels through time where things that are ancient history for us are fresh and live for some listeners because we're not so topical. You know, the subjects we're treating are things that people might be interested in at various points and that we have to consistently have to re engage with five years worth of back catalog. Anytime somebody listens to it for the first time and gets all exercised about it and starts tweeting about it or hitting us up on Facebook.

5:58 Mark: Well, and especially a topic like this one that I noticed just, I think after our Locke episode. Many years ago, I had posted something, looked on YouTube about the social contract and one of the libertarian guys was dissing the social contract or something. And so I had responded to him and I barely remember this. And somebody just like last week said, what a shitty blog post that was like somebody like, the only reason you would find that is if you were actively searching for either this guy or libertarianism and like being a defender of the faith wherever it might show, which is a thing that was very common for our Ayn Rand episode.

But I didn't quite expect to be generalized to this, though certainly there are connections. And that actually, you know, is the way that we typically engage with libertarianism or Nozick and was kind of the bent of your article, Stephen, which is why it would get so read. It was not a close up textual analysis of Nozick. It was talking about Nozick in the context of the social and political landscape. The fact that libertarianism, as you said, was very popular in the early part of the 20th century, but then World War II comes along and it's a giant.

At least this was your analysis. This is a giant coherent governmental effort. And after that it was only, you say itinerant cranks that were defending it, like Ayn Rand and like Reagan at the time. Until Nozick comes along and he's the first a dispassionate seeming academic who is not paid off by any corporations. It was only worked for Harvard. You really can't ignore this book in the way that you could ignore certainly like an online tract or YouTube video or many other even canonical libertarian texts. I was looking at something by Murray Rothbard, who is even farther right than Nozick.

He was someone that Nozick was. It was actually supposedly a conversation with Murray Rothbard that got him to write this book in the first place. So he was sort of the anarcho capitalist position. In any case, this is an imposing work. It matches Rawls theory of justice, which folks might want to listen to that episode before they listen to this in its length and its difficulty to keep paying attention to perhaps. Or did you not find that you loved every page of this Nozick book?

8:09 Seth: It doesn't have the virtues of a good analytic writer and being concise. There are a number of meandering passages and he has a tendency to use long extended clauses instead of just breaking things apart and making it more clear. It's another one of those books. I think we discussed this last time that it was probably a third again, as long as it needed to be to make the argument. Especially that extended thing about animals in chapter three.

8:34 Mark: Yeah.

8:35 Wes: Which is his. You know, he has his argument against utilitarianism, which you would think would be really. His focus amounts to some strange thought experiments and he doesn't give you a full fledged argument, he just gives you these strange little chapters. I mean, overall it's a very intricately argued, dry analytic text and that's what makes it difficult. And the only way I can get through these sorts of readings is to sit down and be writing as I read, trying to summarize responding to what he's saying. Otherwise it's hard to maintain focus.

And Nozick himself says he didn't start out being a libertarian. Right. He sort of convinced himself by writing this book. I don't know how seriously we take that, but I think we can't deny that he's presenting some well thought out arguments in some places and in others he's sort of skimming over things. I think like Sandel, he ended up getting very focused on Rawls when I think he might have made better use of his time thinking about utilitarianism.

9:33 Dylan: I don't think it's so hard to see and believe that he convinces himself of libertarianism only because there's this principle of the micro trumping the macro and of no real attention to the virtues and the necessity of social bonds as part of the human condition permeates the book. And once you insist on founding all human interactions by the actions of individuals, when you go down that path, it's not so hard to see that you end up at libertarianism because basically you discount the function of the social and discount the function of the political as being part of the virtue of human beings. I can imagine that you would get convinced of that if you took as your analysis what he does as the primacy of individual people as actors, and that the fact that we're social beings is a kind of secondary byproduct. It's not something fundamental to our existence.

10:33 Wes: Right. Nozick wants to think primarily about the rights of individuals, which I think we all, at least at some point in our lives, we can all sympathize with that. But on the other end of the scale, just to get to your talk of the macro, Dylan, and relate that back to utilitarianism, you have to think about the overall well being of a society. And I don't think you can get away from that in the way that Nozick thinks. And he doesn't really have any good arguments for getting away from that, as we'll see when we start jumping into the detail here.

11:00 Dylan: The other way that you get to it, of course, besides thinking of the well being of society, it's related, but not strictly utilitarianism is understanding that even as an individual being, that we're social and political animals. You might not end up with Aristotelian telos, but you would understand, understand us as not being really separable from our social context and the relationships that we have, and that those have force on us other than negative ones, and that there is something to be tended there, that there would be rights and responsibilities involved in those relationships, which is related to the utilitarianism, but not exactly the same thing.

11:38 Wes: Rather than bringing utilitarian objections, we could bring these communitarian objections, as per Sandel, which I'm only mentioning so much because we did him recently.

11:46 Mark: So, Stephen, do you have sort of an opening statement?

11:49 Stephen: You know, what really struck me reading at this time was I'd recently been rereading Locke and I kind of see in a new way what Nozick was trying to do. He's making a natural rights argument, but he's modifying Locke in two really radical ways. The first is that he's trying to make a totally invisible hand explanation for the advent of a even primitive state, or even a state that's more advanced than a primitive state. So there's never a contractual moment, which is very big in state of nature theories of both Locke and Hobbes and others. There's the moment where everyone kind of joins hands and agrees to exit the state of nature via a contract.

Nozick is so Attracted to the idea of invisible hand explanations, he has a long section on them. And this is clearly the influence of the Austrian economists on his thinking that he wants to think that even the contractual moment for the founding of something like a minimum state or even a slightly more than minimal state is totally unnecessary, that something even more organic and spontaneous can happen. Which is interesting vis a vis Locke, because what Locke says about spontaneity, he only uses the word, I believe in one context, in the essay on government, which is nature is spontaneous.

Any argument Locke makes about human social interactions being both organized and spontaneous is really by implication. So to me this shows the influence of Hayek and the Austrians really coming and powerfully into his thinking. And then unlike Locke, who says that we exhibit reason in our ability to have these relatively spontaneous, very commercial and self interested cooperative interactions. So much of what Nozick is doing rests on this Kantian halo of inviolability that he, Nozick places around individuals. And for me, where I always stick in this argument is how unargued for that particular part is.

It seems to me that's rhetorically very persuasive because I feel like Nozick at some very deeply instinctive and sincere level believes it, that human beings at the end of the day are ends and not means. I find that also instinctively quite beautiful, but I find it unargued for in this context. So those two things really came home to me.

14:06 Mark: Well, maybe that's a good place to start. This bit about side constraints of how he phrases his the inviolability of rights of the individual. Whereas you might think that society has the right to, for instance, tax you to help somebody who is in great need, he thinks no, that would violate your rights. So there's something fundamental, even if it would only be a minor inconvenience to you. That's not the point. You can't look at the level of inconvenience versus the level of benefit. It's just absolutely society, without being unjust, can't do something like forcibly take your money for redistribution in this way.

And that's supposed to grow out, in fact of the idea that taxation amounts to forced labor, which is a matter of using somebody's body against their will, which is a matter then of your ownership of your own body. So that's supposed to be the ultimate core of this, is you own your own body, therefore the fruits of labor should be yours. And that's straight out of Locke, as you mentioned, the admixture of labor into, if you go into some natural area and take some wood that is not owned by anybody and you make it into something, it's yours. It doesn't belong to the world just because the wood was unclaimed or something.

Right.

15:22 Wes: Well, there's the proviso. There's the Lockean proviso that does concern whether you've left others worse off because of that claim, just through monopoly.

15:32 Mark: Right.

15:32 Wes: So what's the proviso here? He gives the example of the watering hole, for instance. So it's not as complicated as simply taking what's available for Locke or for Nozick, because you could end up damaging the rights of other people by doing that, leaving them essentially worse off than they were before.

15:49 Mark: Right. If you take the only water.

15:51 Seth: Yeah.

15:51 Wes: Each situation becomes very complex because to what extent taking something actually infringes upon other people? That's a very complicated question. Especially with land. If you're squatting on land, you're decreasing the total availability of that very, very limited resource to everyone. So it's not an easy question to answer whether or not the Lockean proviso has been satisfied.

16:14 Seth: I feel like there's two different things going on here. The question about acquisition and the complications with acquisition that Wes just brought up properly fall in the discussion about entitlement versus distributive justice.

16:26 Wes: Right.

16:26 Seth: The issue about side constraints, Mark, he wants to distinguish between treating something as a side constraint versus a goal. And he ties this back to the Kantian notion of treating people as not simply a means, but also as an end. And the way in which the side constraint manifests the Kantian categorical imperative in this case is in a way that's not a goal driven as opposed to a constraint is that you can think of it as a constraint by thinking of it as a negative or a boundary as opposed to a positive action or imperative. So the fact that individuals are ends as well as means means that they have a right to self determination.

And this is that whole conversation about you have a right to treat your body like property so you can dispose of as you will. And the point of that is that a side constraint means that nobody can take any action with respect to you that would infringe upon your right to self determination. So the side constraint is a negative boundary on what other people may do with respect to your individuality or your Kantian individuality, which is to say you write to self determination. It does not say, however, that anybody has any positive responsibilities or obligations towards you.

So in other words, I can't do anything that would somehow limit your self determination. But I also have no obligation to do anything that encourages your flourishing or encourages you to actually exercise that self determination. And he thinks somehow that by thinking of it in those terms it gets around. One of the objections that he saw about the way in which people are thinking about the Kantian thing as having these positive obligations towards others is what drives the violation of rights or makes the state immoral in the classical liberal conception.

18:26 Mark: So you might still have positive obligations toward people as an individual, but the state does not because of its monopoly and force. Is that right?

18:33 Seth: I think he's saying that even as individuals don't have positive obligations, the categorical imperative does not indicate that you have any positive obligations towards other individuals as an individual, simply that you have negative obligations not to infringe upon their self determination.

18:49 Wes: Well, one thing I think we jump back and forth between Locke and Kant and this goes to Stephen's mention of inviolability, I think, and what that constitutes because I think there are intuitions which we can all accept about rights that no one should have the right to come up to me and kill me without reason. And that's one sense of the inviolability of my integrity. But with property it becomes much more complicated. And it's not clear that Kant would think in the same sort of libertarian way that Nozick is thinking. Right. The talk of a right to one's property is very Lockean and the connection between the two is actually not so clear. So when we get to chapter seven, he's going to assume that kind of entitlement theory. And I think it doesn't simply flow from a Kantian conception of rights, even though he wants to relate the two, but not clear that one simply comes out of the other.

19:41 Mark: I think you need that intuitive chain that I laid out if you believe that the Kantian thing that means, well, people shouldn't be using you. Well, what does that specifically mean?

19:50 Wes: Right. He lays it. Yeah, that's right. He tries to justify that right.

19:54 Mark: The move from the body to forced labor to property is something that is not Kantian at all.

19:59 Wes: Right?

20:00 Stephen: Right.

20:00 Mark: And that probably came from Rothbard or one of those other guys. So the first part of the book, he gets to this talking about side constraints by talking about this invisible hand argument for why the state would arise in the first place. In other words, why not anarchy? That's like what he' what the whole beginning of the book is. It's not really a live concern, you know, whether should we have the ultra minimalist state or should we have anarchy? That's not, I think, a useful dispute for our listeners. But what do you think?

20:24 Dylan: Well, shouldn't we at least summarize? Even though there's a contemporary reason for why he's vigorous about addressing that issue, because of the role of anarchy theory at the time, it does seem worth saying. Well, you know, if you're going to say that the state is in general bad, why have a state at all?

20:40 Wes: The minimal state is okay, but the

20:42 Dylan: minimal state is the only justifiable state,

20:44 Mark: and that's the night watchman state. It only can do protection.

20:48 Dylan: No, I thought it was more the

20:49 Wes: night watchman watchman is the ultra.

20:52 Dylan: Yeah, it's the ultra minimal.

20:53 Seth: No, the night watchman is the minimal state.

20:55 Mark: Right. The difference between the two, the ultra minimal state is where there is a central organization that provides protection and there's only one. He thinks that naturally people would start, they would be in little tribes and they would maybe get, you know, some barbarians to protect them. But over time, this would consolidate for various reasons that we don't need to go into, and that you would have one organization that would have a monopoly on force that people could pay to protect them. And in the ultra minimal state, only the people that pay get protected.

21:22 Wes: Sorry, that's right.

21:23 Mark: And in the minimal state, even if you don't pay, you still get protected because it would just be too much trouble this time.

21:29 Stephen: I thought of the ultra minimal state as like the Time Warner state. It has a monopoly, but you got to pay in order to get the service. And one would see why one would rapidly reject this as a plausible alternative and move quickly to, you know, I don't know, the FIOS state, or I don't know, you tell me what the proper analogy is for the night watchman state. If you don't pay, you don't get cable. But there's still a monopoly.

21:55 Mark: Yeah, the water utility. I don't know, I mean, it seems.

21:58 Stephen: Yeah, there you go.

21:58 Mark: Yeah, they'll shut it off. Eventually you can run into your neighbor's yard and use the hose. So what is the justification? So the ultra minimalist state clearly would not be violating anybody's rights because there's no taxation involved. It's just you're paying for a service. But the minimalist state does involve some redistribution in that part of your taxes are paying for those people that can't or won't pay for.

22:20 Wes: And we didn't officially read the chapter where he justifies this, so that's chapter four.

22:25 Mark: Clearly, for him, anything beyond that any distribution based on, well, this person is simply poor and doesn't have enough to eat, and so you should be taxed to pay for that. Not that it's immoral to help them. You're free to give some of your money to this person. You're free to start an organization that solicits people for money to give to the poor. You could gift everything you have to the poor. You could gamble it away. You can do anything you want with your property. It's just the government can't tell you this. Seems like there's a distinction there between the morality of an action and what society can do.

The government having a monopoly on force is very restricted in a way that Nozick just pretty much stops talking about the morality of individual. You were saying, Seth, that he follows Kant and says you have no moral obligation to give either. Or does he say anything more about ethics in here? That.

23:07 Seth: No, the key message is that you don't have a moral obligation because if you did, that's how it leads to the state being immoral. And he's trying to make the argument that it isn't.

23:16 Mark: I just. I guess I could easily see you having a view that, yeah, as individuals we have a lot of responsibilities toward each other. Honor your father and mother, blah, blah, blah, but yet it's not the government's business to make you honor your father and mother, or to honor your father and mother for you, or to be involved in that at all. Like that, I think, would be a much more common libertarian position among people today than morality does not involve duty, is merely negative. So does that mean Nozick is a lot crazier than real libertarians? Maybe we could just say his focus in this book is not individual morality and he doesn't give us a lot to go on, at least in the chapters we read.

23:51 Seth: Yeah, but I think it points to both. What Stephen and Dylan were saying earlier is in order to make his argument work, he really has to commit himself to some very impoverished notions about what human beings are and how they interact, and then he's just essentially projecting that onto the theoretical apparatus that he's using.

24:08 Stephen: Am I right in thinking that the mechanism by which he gets from an ultra minimal to a minimal state has to do with compensating people, compensating independence for the disadvantage I'm reading now from the book, for the disadvantages imposed upon them by being prohibited self help enforcement of their own rights against the agency's clients. So effectively, it's kind of like voucher restitution system where you quantify a disadvantage for being an independent force to negotiate or protect, potentially be coerced or whatever by someone who is part of the protective association.

24:45 Wes: He's going to say if you start out with the ultra minimalist state where only some people are paying for the service of being protected, this dominant protective agency cannot allow independence, that is people who aren't going to pay in because what happens is when they protect their own clients, they're going to have to use force against independents who happen to be violating the rights of their clients. Then the question is how you do that, how you screw the lives of the independents without that being a violation of their rights. And the only way to basically not violate their rights is force them into the whole system, which is to say you compensate them by just providing them with protection services as well.

So yes, we're going to prevent you from murdering one of our clients, but we're also going to prevent someone else from murdering you. That's your compensation. But what we are going to do is we're going to charge you the amount for that that you would have spent protecting yourself. So the price of guns and the labor of sitting up at night in a paranoid sweat about who's coming to get you. So that's how you sort of suck everyone into the dominant agency and then charge them by taxing them. And he says that doesn't violate people's self ownership because the original clients, you know, you have an original base of clients who paid voluntarily and then the independents, they were charged only what they would have had to spend protecting themselves.

Any it was the only way to protect your original clients anyway, to compensate them. So it's a weird argument, but basically he's trying to say against the anarchist it doesn't violate people's rights to forcibly tax them for protection. Because of this intricate argument that I've tried to summarize, which just shows you

26:21 Mark: that he, throughout this whole book, he really sees himself not as a far right figure, but as centrist, as right. Between the anarchists on one side, the anarcho capitalists and the statists on the other side.

26:33 Wes: Exactly.

26:34 Mark: He's reasonable, he's not an extreme. And in fact he thinks that somebody like Rawls, in arguing for a society that will overall be just, is admitting that in individual cases, in fact many individual cases, most of the individual cases, injustice is done. In other words, every single time there is a redistribution. This is Rawls view, according to Nozick, then that's unjust. But yet if you put them all together. Then you get a just society. That seems like a really bad.

27:02 Wes: I don't know about that. I didn't get that.

27:04 Mark: This is in the macro and micro section. This is one I read today. So, yes, this is actually how he characterizes Rawls.

27:10 Wes: He thinks Rawls buys into the entitlement theory of justice at some level. He doesn't really. And I think, Stephen, you've pointed this out. He doesn't try to justify this entitlement theory of justice that he comes up with, which we can summarize by saying,

27:23 Seth: so the entitlement theory basically says there are three ways that people can get things or get positions or what have you. Acquisition, which is what Mark was talking about earlier, which is the sort of simplistic model of there's something laying on the ground and you pick up this driftwood and you whittle it into a ship and stick it in a bottle, and then you own that ship in a bottle. You can then trade or sell that to somebody else, which is called transfer. And the third way is rectification, which is where you receive something as redress for something that was taken from you or stolen from you or injury, what have you, based on the ultra minim.

And his point is that anything that you get via one of these means you are entitled to. And he thinks that this is a better way of thinking about ownership in the state model that he has versus the distributive model, which is the Rawlsian position that you want to elaborate on.

28:20 Wes: Right. It's kind of analogous to axioms and theorems. Right. In logic, the idea is if you start out with true axioms and you perform legitimate logical operations on them, then the resulting theorems is preserved. So it has that intuitive appeal to it. I think that's one of the attractions.

28:38 Mark: Right. So the micro versus macro thing is that if you look at micro situations, it just means actual, concrete, real situations. And you look at how your principles apply to that or even your intuitions how they apply to that. And so you apply the entitlement theory. And if you find that the transaction was just in one of those three ways that Seth just mentioned, then the holdings that come out of that are just. And so the famous example is this Wilt Chamberlain one, which I wanted to invite Stephen to give for us, because you did that very amusingly in your article.

29:08 Stephen: So Nozick is trying to draw a distinction between what he calls patterned and unpatterned distributions and pattern principles of distribution are inherently violations of liberty of that kind of Kantian inviolability, because essentially it's an end state to which individuals must sacrifice some of their liberty or right to self determination in order to satisfy. Whereas an unpatterned one, I mean by implication is organic and spontaneous and doesn't require this abrogation of liberty. So the example that he gives is, okay, imagine Wilt Chamberlain.

And this is a thought experiment, right? So imagine a supremely talented basketball player named Wilt Chamberlain. You can go watch a game that Wilt is playing in and there's almost like, if I remember correctly, there's a tip jar. It's not even so much that you're paying a set fee in order to go see the game. You can put 25 cents in the jar because that goes directly to Wilt Chamberlain, who's the principal reason you're going to watch the basketball game. And everyone puts 25 cents in and a million people go and see Wilt. Over the course of the year, Wilt takes home $250,000.

And this happens to be more in this thought experiment than any other person in this invented society has. What a pattern distributionist would say is Wilt ought to be taxed to a certain degree. This is grossly disproportionate to what other people in the society have. Furthermore, maybe we can put to public use what we consider to be the excess monies that Wilt has. And what Nozick says is, well, on what basis are you saying that? If in fact he calls D1 this. I mean, I think Nozick uses these incredibly hokey pseudo analytical philosophical constructions to say things that don't require them.

But he says there's state one, which is state, we'll call it D1. And D1 is where everyone has whatever amount of money they have and then everyone puts the money completely voluntarily into the tip jar. No, one of those contributions is just in the aggregate. They don't become unjust. Therefore, when you move to D2 to this new pattern in which Wilt has an enormous sum of money relative to his fellow citizens, since you cannot point to an unjust step along the way to that distribution, there's no basis in justice or injustice to call it a maldistribution and tax it.

And then of course, this links up to the other parts of Nozick's theory by which taxing Wilt is roughly akin to coercing him to labor without remuneration. And I think that that's what the example is. So it's essentially the only basis on which you can impose A desirable end state pattern on the situation, which is wilt not having this amount of money or not having X multiples of money relative to the poorest person or the median person. All of that is based on a misunderstanding of the nature of justice and that in fact there's no basis in justice to call it a maldistribution and tax it right.

31:59 Wes: He says we would basically have to continually interfere in people's lives to enforce these patterned distributions and forbid capitalist acts between consenting adults. So he gives a pretty dark depiction of what's necessary if we're going to enforce a pattern conception of justice.

32:16 Stephen: I have to say what I find amazing about this is that welfare states all over the world in varying degrees have responded to what they take to be the fundamental conditions of modernity by taxing their citizens in a way that does not overly enforce pattern life outcomes, including in the United States, which did it from roughly the 1930s until roughly the early 80s. We still do it, we just don't do it as much as we used to until roughly the 1980s. And the question is, did they ever. It's an empirical question. Did they ever forbid capitalist acts between consenting adults?

They were forbidden behind the Iron Curtain, but were they forbidden in Norway? Were they forbidden in Denmark? Were they forbidden in France? Were they forbidden in England? I don't really understand why libertarian arguments need to immediately go to a kind of in extremis case where it's a road to serfdom or the specter of the Gulag or. I mean, these are the kinds of speeches that Reagan gave during his wilderness years where it was always darkness at noon. But if you looked around the United States, I mean, the United States was a, in some ways radically free and open society in the 1950s and 1960s, even though your highest marginal tax rate was often north of 70% and at one point was as high as 90%.

It's interesting to think about what had happened historically in the 1970s that by the mid-70s people were very open to an argument that had been a fringe argument before. This was a hugely best selling book and it won the National Book Award. It was legitimating arguments that had been seen beyond the pale. And it's outside of the scope of this discussion, maybe to talk about what had happened starting in the late 60s that turned the public mood against it. But this is one of these moments where you wonder just why, what is it attaching to in the imagination of many, many readers that they thought that that was a plausible thing for reputable Philosopher to say, right, I find it

34:14 Wes: especially interesting in light of the fact that he was able to justify taxation right at the very beginning. We just talked about that argument where he justifies taxation for the sake of protection. And it seems like the same sorts of arguments can be applied. And it's not as stark as saying, right, we're forbidding capitalist acts between consenting adults. It may make them, we may regulate them, we may take a piece of them. But the idea, yeah, the idea that it's simply some extreme of forbidding just doesn't seem accurate, especially with the.

This brings us back to the Lockean proviso where, and I think, Stephen, this is one of the points you made in your article. Because these capitalist acts are having widespread effects on society. It's not as if they're happening in a vacuum, and it's not as if each transaction is as free as he makes it out to be. People, for instance, are acting out of need and desperation. So none of the sort of the entitlement principles and the way they're purely presented is actually a fully accurate description of the way things actually happen in a society.

So it's messier than that.

35:12 Stephen: It's far messier. And I just want to point out, one should ask oneself why huge emphasis in the book is on the coercive powers only of government. Do we think someone has an enlarged moral imagination if they can only see taxation for redistributive purposes as coercive, and they completely tune out how concentrations of private wealth can be potentially coercive. That gross mal distribution of wealth that leaves some people without any meaningful economic power can end up being coercive. That the relationship between concentrated private wealth and state power, such as it is, means that you get half a conservative revolution, which did happen already in this country in the 1980s, where you get the weak clients of the state economically disenfranchised and the strong clients of the state get essentially what amounts to socialism, they get corporate socialism.

All of these things impinge upon the moral imagination. If you open your eyes and see what happens in the real world. Why is this one form of coercion such a huge preoccupation? Look, it may have been in 1975 that the American welfare state was a repulsive leviathan that needed taming or shrinking or whatever. But this is an absolutist argument in the direction of doing away with the welfare state completely, which no one, by the way, anywhere is ever going to do.

36:34 Dylan: This preoccupation with constraint would point to a peculiar understanding of freedom for Nozick. I mean, they had to be sort of two sides of the same coin. And I guess I'm a little bit at a loss to articulate exactly how he's positively understanding freedom so that it works to the other side of the coin with this coercion. But it seems at first blush just a kind of naive understanding of what freedom is. That is, it's always a very simplistic freedom from that's also individual based and that doesn't understand that those binds that we have come from lots of different places, not just governments and not just other individuals.

37:13 Mark: Well, I think that the point is just supposed to be it's physical coercion that the government has the monopoly on physical force. And so unless somebody, a loan shark or something, a gang member is coming and trying to physically coerce you, well, in that case you call the police and they nail them. But there's no recourse if the government comes and messes with you in some way.

37:31 Dylan: But I think that points to something directly related to what Stephen was saying regarding the characteristic of those constraints and the characteristics of the constraints on our freedom that he just seems to be. Well, for instance, with the case of commerce, he seems to think that virtually every version of commerce that we enter into is one that is not a constraint on our freedom because we enter into it freely. And so whatever we subject ourselves to is our own damn fault. And not understanding that there are circumstances that we are in that maybe it's just frankly more complicated than that, that it's not simply a matter that, oh, we chose to be in this situation. So therefore we're not genuinely coerced and our freedom hasn't been violated.

38:12 Stephen: And what do you do? I mean, that's the other thing. The situation is so hopelessly complicated and always has been for political philosophy. Each generation doesn't appear on earth at the exact same moment simultaneously and enter a tabula rasa, right? There's not a pure field of action in which we all set ourselves individually upon given raw materials and make both of them and of ourselves something. And then someone comes along, some nasty person comes along, some priestly bureaucratic elitist comes along and says, you were too successful. I'm going to arbitrarily inhibit and constrain you because I'm pathetic, self hating, incapable of my own will to power.

But I don't want to admit that. So I'll invoke something called the public good. Well, that's a nice libertarian fantasy, but the truth is every human being is a bundle of complex inheritances, some of which are liberating and some of which are profoundly inhibiting, and very many of which have absolutely nothing to do with their volition or their interaction with either themselves, their freedom, their environment, you know, anything. And so the Wilt Chamberlain example is fine if you live in such a hermetically sealed universe and at some point you have to break the seal on thought experiments and test them against one's own experience.

And I think that that's where, you know, this theory in some sense fails. I mean, I think, look, we all instinctively know that there's a publicly educated child in the world somewhere who has been liberated into their own capacities for self making and enlightenment in a way that they wouldn't have been if someone hadn't been taxed on their behalf. I personally don't find an argument in this book that stops me in the face of that.

39:47 Dylan: I like that example because the virtue of public education for the proper running of a democracy has been a theme in the American democracy for a long time and certainly been a theme in public education since sort of the advent of public education in the US that part of the job of it was to then the argument for using public money to do it was to create citizens that are able to run the country. So it would seem to be in the best interest of the government itself to have citizens that could do that. There might be arguments about the way in which it's done, but the education that would make for a just society and a just democracy that runs in the way that you want it to would happen by some kind of, I want to say open hand argument. But that's karate. So it's invisible hand argument. Sorry, I don't see any argument for how that's going to happen.

40:43 Wes: And again, I think you can use the same argument that he uses to get from the ultra minimal to the minimal state to justify taxation for purposes other than protection. So if you start out and you say, well, look, I have the right to protect myself and I have the right to hire someone to protect me, and we have these agencies, but the only way those agencies are going to work is if they interfere with others, and then they have to compensate them by protecting them, but then they also have to tax them, you get this argument for taxation. I think you can give a very similar argument for do public funding for

41:15 Mark: voting places a very basic or no just roads?

41:18 Dylan: Well, that's a great argument. What would Nozick's reply to that be? I don't remember.

41:21 Wes: I'm not sure. So I may taking up that kind

41:23 Dylan: of thing in the book, but something

41:25 Wes: like Rhodes, it's people have the right to get together and pay into a system where someone builds infrastructure that they can all enjoy. But in the same way that you're screwed if you end up in a society where there's a dominant protective agency, you're screwed if you end up in a society where there are the dominant road agencies, let's say, and. And you're forced to buy in them for sure. But you could make a Nozickian argument that you're forced, but that's okay because that's the only way that other people can exercise their right to cooperate on infrastructure, because you're not going to be able to walk out of your house and not use these things, not use roads and not use all the other public sorts of things that people make use of. I hope I'm not misrepresenting the matter yet, or that he has an argument against that, but I don't remember him dealing with that.

42:09 Mark: Well, the rest of the book, the part that we read, was all about distributive justice. So even though, you know, I think this kind of discussion that we've been having is fascinating, as are the discussions, like the kind of thing that came out in the Sandel episode of what would make it okay to prohibit suicide or certain kind of drugs or any other kind of paternalistic things. I mean, those are all things that, like libertarianism should have to deal with, but those are not the focus of this book. So so much.

42:33 Dylan: The only point I would make, Mark, is that the way Wes just framed the objection, it seems to me that if you take it seriously, the question is why the line that Nozick draws at essentially physical harm.

42:47 Wes: Exactly.

42:48 Dylan: And why is that the line that is the obvious line that can't be crossed, that is the only one that we'll agree to. And how is that line different than any number of other lines? And that, to me, seems to be something that is worth addressing. Nozick either addresses it directly, and I frankly, just don't remember. I don't remember him taking that up in particular.

43:10 Mark: I think he gets this from Murray Rothbard.

43:12 Dylan: Okay.

43:12 Wes: Yeah, I don't think he does.

43:13 Dylan: Okay, so then to the extent that he doesn't, it's probably worth trying to say, well, either it's a fatal flaw in his argument and we just drop it at that, or there's some reason that we can kind of tease out that would say, well, this reason is the best Reason we can come up with why he would have that line there, even though we're still skeptical about.

43:31 Mark: From what I understand of the bit of Rothbard that I read that it was that we all understand the government exerting physical force and having a physical monopoly, but anything that's beyond physical force, it becomes a slippery slope. If you say that a company can't have even the company that owns the only water spring in town, and so you're going to die of thirst unless you pay for it, and maybe you don't have any money and you can't pay for it, well, you're just shit out of luck. It's just like if a earthquake came and decimated the entire country, you'd be shit out of luck then. I mean, that's just. Just that it still doesn't give any positive moral or political.

44:04 Wes: No, I think in those situations, he, though he argues.

44:07 Mark: Right. Well, that's Nozick's. Oh, sorry, you're Rothbard, like, has that really total. And he's saying, you know, in contrast to somebody like Hayek who would say, okay, that is actually a form of coercion, Rothbard wants to say no, even it's only physical coercion, because once you open the door, you have a moral obligation to help. And then you open the door to somebody has the moral permissibility to violate your rights by taking stuff and redistributing to others, and so everything just goes to hell out the window. Now, as you pointed out, Nozick, since he allows that in the case of physical force, contra the anarchist, maybe he doesn't have this at his disposal and maybe that's why he doesn't go into it.

I don't know. But let's shift to his critique of Rawls if we can, then here. So I had said earlier that he was actually saying that clearly on the micro level, taking from Wilt Chamberlain to give to a poor person is obviously wrong. But according to Rawls, this is Nozick talking then. Well, if you do enough of those unjust things, well, you end up with a just pattern. And so that's. Isn't that screwed up that something could be unjust on the micro level, but then just on the larger level? And so he doesn't like the fact that Rawls is focusing on the macro level.

Is focusing. You know, Rawls is thought experiment is all about what are the basic foundational rules that a governed society are. It's not even about the individual laws, you know, that every single law passed or every Single transaction must benefit the worst off person or something. It's just that the overall framework has to do that. And Nozick just thinks that it's just too hard to talk about the macro in that way. Like, we don't know how individual principles are going to interact with each other, how they're going to sum up to the macro.

It's just the macro is too big to talk about. So we really need. You know, he's trying to talk in Rawls's own language here. Right. Rawls is all about reflective equilibrium, which is you consider these principles and you compare them to real concrete cases to adjust your principles. And so Nozick is pointing. Don't you think in like the Wilt Chamberlain example that nothing is going wrong here? And so why would you want to cause an obvious injustice then by taking something from Wilt just to lead to some higher good? So I guess that's the question that I really do think, and I don't know that he's correctly characterized Rawls here, but I really do think that even if there are, just to turn the example around, there are individual transactions that seem like they're fine, that taken on a global scale, can lead to horrible things.

And that's exactly what's happened that it seems like almost any given capitalist thing. And this came up in our Sandel discussion, you know, maybe allow somebody to sell an organ here and there, sell their body, sell, sell themselves into slavery. You should just allow all that stuff because it seems like it's just, oh, it's person is doing it, even if they're not coerced in some way, even if we get rid of the poverty, you know, those kind of things, we say this person is freely doing it. Even if we allow those kind of things, still to have a society in which this kind of stuff goes on is horrible.

And so that's just a sort of a general statement of this principle, contra Nozick, that, yeah, I do think that the macro and the micro are separable.

47:13 Stephen: When one considers issues in these terms, aren't you playing off an instinctive attraction to the notion of plurality and diversity? Right. Against the moral efficacy of things that are applied only universally. Right. So let's say you take this very micro, very localized notion of obligation or ethical disposition that Nozick seems attracted to. On the one hand, you're saying this kind of large Procrustean solution applied to all people everywhere, especially in a sprawling and hugely diverse country such as ours, is likely to really lop some legs off of some people.

It's bound to be crude and inapplicable. On the other hand, there's some history with letting localities or regions set their own ethical norms and therefore legal enforcements. You know, when it comes to civil rights or the rights of gays to marry, does a larger moral scope always align perfectly with the larger, more universal governmental entity? I mean, is the federal government always right and the local government always wrong? No, but there are powerful counterexamples to the idea that the larger, more generalized entity is always going to get it wrong and the local and the micro is always going to get it right.

And then secondly, you could argue that one of the reasons certain governmental policies enjoy huge amounts of success and consensus is their universality and the fact that they don't make any distinction between individuals whatsoever. So, for example, you don't means test Social Security, even though it would mean getting more money out of people who do not need it, who do not need Social Security or the money, frankly. But FDR and Brandeis and a lot of the people who designed the early social welfare programs of the United States at the federal level were very adamant that they had to be universal.

So I see both sides of it. I mean, we live in a hopelessly. You know, this is the Isaiah Berlin libertarianism, right? Which is that we live among a wide diversity of kinds of people whose moral orientations and worldviews are just fundamentally incompatible. And there is something about respecting the inherent dignity of individuals by saying we can never put them on a common scale and should never try to put them on a common scale. But I don't think that that's an easy argument to settle.

49:35 Wes: I think overall we have to say that we don't necessarily have to agree with them that the macro is reducible to the micro, in the same way that we don't have to agree that the entitlement theory is so intuitive. It's intuitive if you think that justice works in the same way that logic works, yes. If we start with a just situation and all the intervening transactions are just, we somehow must get a just outcome. That doesn't really follow it. I mean, it follows for logic, but there's no reason to think that justice works in precisely the same way.

And there's no reason to think, as he thinks, that the macro is reducible to the micro, which means with macro, again, we're talking about this pattern conception of justice where we ensure that, let's say that there's a safety net for the poorest of people and some redistribution of them, some concept of redistributive justice. And the micro is just. Just the Wilt Chamberlain example, he thinks the micro is superior in some sense. He talks about the fact that it's somehow clear. But he gives all sorts of not rigorous, not entirely convincing arguments about the priority of the micro, and then says the whole cannot be just if the parts are unjust.

Right. The macro. You can't have a just macro situation, but it just doesn't follow. There are lots of domains in which reducibility, to go back to our Chalmers episode on that reducibility in many cases is simply not a function that holds, and we can't assume that it holds between the macro and the micro injustice.

51:02 Mark: Just because that part of the painting is ugly doesn't mean the whole painting is ugly.

51:06 Wes: There you go. So I think we're going to have utilitarian and other, maybe communitarian or other intuitions about what's just for society as a whole. And that's not simply the sum of the justice of the particular transactions within the society. We can think about whether it's right that there's major income inequality in a society, whether that's just and. And it's simply not a reducible thing. It's a legitimate question in its own right for justice.

51:32 Mark: So might we want to actually accept Nozick's formulation, which is to say that normally the government taking money from you would be unjust, but because the overall result is better, it's desirable in some specifiable way, they can't do it for just anything, but then that ends up having an overall end state that is just. Even though that transaction is unjust. Seems like that's not the way we talk. We would say, well, if we decide the overall.

51:56 Wes: You'd have to disagree that the government taxing you, for instance, is unjust? I don't.

52:00 Mark: So you're. You're actually arguing about the micro. You're saying that. No, I, I don't agree. The question is not, as you say, Nozick, that there are all these individual unjust things and they add up to justice. It's that I just don't think these

52:11 Wes: individual things are unjust in the first place. So. So I'm actually saying that you might have an unjust macro situation, even if all the micro elements are just. And you're bringing up an example in which there are micro injustices for the sake of macro justice. That's a different issue. I think the solution to those things is that those micro justices aren't. And we saw this in Sandel for Instance, he was arguing against the legal philosopher who was writing about affirmative action, Dworkin. So Dworkin has a utilitarian argument. And what Dworkin is essentially going to say is that people don't have a right to go to a particular school.

There's no meritocratic right to go if you have certain grades, and schools can consider whatever criteria they want. So that argument against affirmative action doesn't work. So Sandel argues against Dworkin's argument. But what I'm saying here is that this idea that taxation is a, or not getting into the school you want because of affirmative action criteria, the idea that those things are actual abridgments of your rights, is misconceived. It only follows if you accept, as Stephen pointed out, this very stringent narrow conception of inviolability.

Or maybe we would call it an expanded conception, right, where any sort of infringement on my property, no matter how marginal, is just a violation of my rights, and it just can't happen.

53:26 Mark: But isn't it just infringement, again, by the group that has a monopoly on force that you could agree with the assessment that you just gave of the affirmative action because a university doesn't owe you jack, but yet not agree with that? You're saying even a public university, even one.

53:40 Wes: There are different reasons why it's not an infringement of rights, but in both cases, I don't see it as an infringement. We could argue that along different lines. Like I said, we could use Nozick's own argument against him and say, look, you've justified the taxation for the sake of protection, and we can do the same thing in these cases. We can justify taxation for the sake of pattern theories. If it doesn't run afoul of rights in the sake of the protection argument, it doesn't necessarily run afoul of rights here.

54:04 Stephen: I just wanted to interject at some point in the conversation, who is the taker or the coercer? Does the legitimacy of a government derive from its reluctance to penetrate the halo of Kantian inviolability, or does it come from democratic institutions that represent funnel the will of the people? I just feel as though democracy is kind of the thing that's missing because taxation is something that, you know, the United States has well established institutions of self governance, right? And the people who vote to tax us didn't inherit those offices.

They're not kings and princes, they're elected representatives. And there's a constitution that regulates how they get the power that they get. And we've lived within those constitutional norms pretty successfully for over a couple hundred years. So it's not that someone knocks on your door. It's not like the monopolist of violence is a random actor who is randomly prone to abusing the monopoly of violence in order to tax you on a whim, if you see what I'm saying. The democratic will of the people is something completely missing in my estimation from Nozick's argument.

And presumably when someone is taxed in some ways, they are self taxed. And we can argue about what state of the health of our democratic institutions are. But that certainly makes a difference to me when you're talking about why I write the check to the irs. And why is that different fundamentally from someone who just happens to have a badge and a gun knocking on my door at midnight because I posted something on the Internet.

55:40 Wes: Well, I think this is why he gives the argument against something about leaving the country. Doesn't even remember that. So someone might argue, well, it's an opt in system and you can just leave. Because someone might say, well, this isn't the democratic system I wanted. I was just born into it. Does anyone remember that argument?

55:56 Seth: I do not.

55:58 Stephen: I can't say I do.

55:59 Wes: Okay. But I think he would argue, even in a democratic system, there's a certain amount of coercion and the monopoly on force and there's a certain level of coercion going on. It's not like you choose to be within that system. You're sort of stuck within it. I think that's the general outline.

56:13 Stephen: Or he could say, minority rights within a democratic system are always vulnerable to the whims of the majority. So 49% of any country democratically ruled is vulnerable to whatever this. But even that argument is specious in some ways. I mean, first of all, there is a Bill of Rights. There are highly developed, articulated and enforced notions of minority rights in this country. Majorities tend to be shifting and fluid. So it's not as though all 51% of us are united on one issue that we'd like to impose on the other 49%. You know, you feel as though you're pushed into a corner where you're forced to spout unphilosophical and just sort of real world examples back at Nozick, which makes one feel as though one is losing the argument philosophically, which I don't believe. But there is something about forcing Nozick out of the confines of his own argument, which within them is often very

57:05 Mark: convincing, saying, well, he himself admits that given his three Principles of just acquisition and the way that the pseudo mathematical nature that the overall situation is supposed to stay just only if the individual parts were just that. If the initial arrangement before a given economic transaction was itself illegitimate, then it screws up the whole thing. And in terms of bringing in real world things wouldn't. Right? Yes, of course, if he. He did really doesn't then take the next step and say, of course I admit that our history was based on pillage and slavery and all sorts of other nasty things. And so that should be a reason for really throwing stuff out and starting from scratch. It seems like that should follow from his little accepting that proviso and his mathematical vision here.

57:53 Wes: Right. The principle of rectification is hopeless because there's a long human history of unjust acquisition. It's one we can never sort out. So in practice it's simply impossible.

58:06 Mark: That's why you need to just start a new society with only, you know, in the Atlas Shrugged manner of just the talented. And then you just sort of start fresh.

58:16 Wes: We can assume because of the level of injustice in the past, that the current state is not just, and that even if the existing transactions are just that, it doesn't preserve justice. That's really. And I think he does acknowledge this, actually he says something weird at some point. It's something like, don't make the mistake of thinking I'm arguing for libertarianism because it turns out the principle of rectification is hopeless. And so let's just not worry about that for now. He really does put this weird disclaimer, I had it the last time I recorded this, but I'm having trouble finding it.

58:47 Stephen: He did write an essay in which he claimed that he was no longer a libertarian. I think he wrote it in the 80s. It's called something like the Zig and zag of politics, or like the tick and talk of Politics, in which he sort of said, well, I really do live in the real world. And part of what you do as a philosopher is you take the drift of your society at any given moment, and when it's gone too far in one direction, you provide this kind of intellectual counterweight to it. And when I was writing Anarchy State Utopia, it seemed to me the federal government was leviathan.

I don't know. I mean, it doesn't put it in exactly these terms, but at that moment it seemed important to argue in favor of a more minimal state or whatever. And then now, I think he gave that interview or wrote that essay more in the mid to late 80s, after Reagan and I think the idea was, you can go too far in the other direction. I really sort of repudiate these libertarian principles. Now. There's some subsequent argument that on his deathbed to one of his libertarian acolytes, he said, of course I'm a libertarian. Or I don't know, I can't really answer.

59:43 Mark: There's some other publication I think, from 2002 or something where he does, in summing up things, say that, yeah, of course he's a libertarian. But it is interesting that unlike most of these guys like Rawls, who then wrote the same book again and again essentially through the rest of his career, or Sandel that beats the same drum continually for decades at a time, that Nozick just wrote this and then got out of there and wrote about things not having to do with political philosophy for most of the rest of his career.

1:00:09 Stephen: Yeah, he avoided it. I mean, I guess the only point I was trying to make is that the rectification asterisk seems to be the thread that when you pull on it, takes apart the whole garment. But maybe that is a kind of intellectual honesty on his part in which he's saying, look, this whole thing really is a series of thought experiments. And I really am arguing open mindedly with myself. And at a certain moment, it just seemed that making thought experiments that moved in direction X was very important because the world was dangerously heading in direction Y. That's always made me more fond of Nozick than otherwise.

1:00:44 Mark: We were just having a discussion last time about Thoreau, who likewise in his civil disobedience, as he takes a very. The government that governs best is the government that governs least, or better yet, not at all. You know, sort of the way he leads off the argument. And we are having a little disagreement about pretty much is he a crank or not? Is he in making these pronouncements with none of the kind of care that Nozick does, what is he really doing that normally I interpret Nietzsche as somebody who's, as you say, is kind of just like one of those Eastern gurus where he kind of doesn't even have to remain consistent because he just wants to.

If he thinks that your opinion is too far in one way, then he overstates stuff the other way. And so that's exactly what Thoreau was doing back then is, you know, given that the emphasis on loyalty and you better all be okay with being drafted for the war in Mexico, that he was responding exactly to what was going on then now, and in the good way. An essayist should and wasn't necessarily being a crank about it. In other words, retaining that position, regardless of what's going on, what you're reacting to, what audience you're talking to, that what makes somebody like this not a crank, as opposed to maybe many others writing on libertarianism is that they have this mental flexibility.

And it's great that Nozick had the patience to explore this idea and really engage in guys with like Rothbard. And his interaction with Rawls is similarly detailed, but that yet as a thinker, he was actually kind of above it all. He was greater than any one of his utterances.

1:02:19 Wes: So this disclaimer he gives us at the end of chapter seven about the rectification principles. So he says the issues are very complex and are best left to a full treatment of the principle of rectification. In the absence of such a treatment applied to a particular society, one cannot use the analysis and theory presented here to condemn any particular scheme of transfer payments unless it is clear that no considerations of rectification of injustice could apply to justify it. Although to introduce socialism as the punishment for our sins would be to go too far.

Past injustices might be so great as to make necessary, in the short run, a more extensive state in order to rectify them. We can assume injustices occurred broadly, but it's very difficult to say who has been a recipient of injustice and how much, and so how you're going to specifically rectify all that. And overall it's much simpler to simply use a pattern justification. So in other words, what I'm trying to say is one could justify patterned redistributions based on a broad idea of the principle of rectification, where we don't try and sort out who's been bad to whom or who's.

We just assume it's happened and we assume it needs to be rectified, but we'll do that in a patterned way. That's sort of the way I think this exception here he gives at the very end of Chapter seven is a

1:03:35 Mark: very strong one, when libertarians are actually equally concerned about rectification. Just the other way. It's not that there's been so much pillaging in the past and people stealing from each other, it's just that there's already been so much government welfare that the current business climate is hopelessly screwed up. So again, you'd have to start a fresh society to really create the optimal here.

1:03:56 Seth: Getting back to this idea that Wes brought up earlier about using a different analogy, not talking necessarily about building roads, I think that goes to his use of the term protection that it's conceived of as being relatively sparse, namely protection against physical, you know, physical threat, the enforcement of contracts. There's a question, I think, in my mind, about whether you could have an ultra minimal state that also was set up to protect against external threats. So if you think back to our episode on the Federalist Papers, a huge concern of the Founding Fathers in that debate that they had, and the founding of the country was around not just protecting the country from the threat of violence from other countries, but also ensuring and protecting economic interests externally.

And I think there's a good question to be asked as to does part of the charter of protection, like, if you actually started thinking about this and thinking about how it would play itself out, would the notion of protection really start to expand? There's that with respect to the notion of protection as far as the larger group is concerned. And then I think there's a question about protection as it manifests or as it exists for individuals. So, for example, who has the responsibility to tell the future citizens of either the minimalist or the ultra minimalist state what their obligations and rights are going to be in that state?

In other words, how is the state going to ensure that future citizens are prepared to function in that state, understanding what their roles and obligations are? And does that extend to how the state would take care of potential future citizens or future participants if, for example, they were coming from disadvantaged backgrounds? And this is kind of a crossover into Rawls, because the whole Rawlsian system is intended to balance out or rectify the inherent disadvantages that exist in everybody's situation when they're born. A point, by the way, which I think Locke acknowledges.

And so it's one of the things that I think Nozick kind of glosses. But I think if you really pushed at the notion of protection and how the state would actually function, I think you would start seeing a much richer conception of what the state is start to emerge. And then just leading into the discussion more of Rawls, is that the question is, is the notion of distributive justice the only goal in the distributive state has to do with wealth? And I'm not 100% sure that Rawls's notion is, again, that sparse, that it's strictly about. It's about distributing opportunities as much as it is about distributing wealth.

1:06:41 Mark: Rawls is very explicit that it's all about distributing power. It's about distributing. We're not going to guess what your goals are going to be we can't make assumptions about what people's actual goals are going to be. So we have to.

1:06:52 Wes: Except for the minimal assumptions. The thin theory of the good.

1:06:55 Mark: Right. Yes, yes. We've discussed this extensively on our first Sandel episode of what liberalism consists of. The Rawls and Nozick both definitely fall into that, that they're agnostic as to what your actual goals are going to be. And so distributive justice has to do with how this power ends up getting spread out.

1:07:13 Wes: Well, yeah. Basic, basic needs. The thin theory of the good involves being able to provide for yourself and meet other basic needs that will allow you to pursue more robust conceptions of the good. Whether that's, you know.

1:07:25 Mark: But it doesn't look like Nozick even shares that. Like his is even thinner.

1:07:29 Wes: Right.

1:07:30 Mark: Is a question. By introducing this side constraint, he wants to avoid again, any patterned end goal of government manipulation. So that the government principle has to be to maximize this power among everybody, not by doing anything, but by merely letting things be right. And that's going to be the way that everybody has maximum control over whatever it is they already have. Maybe it's only their bodies. Maybe it's millions, millions of dollars. Maybe it's a lot of land, like. But whatever it is that you are entitled to, which doesn't mean, again, you deserve it.

It's just that you got through one of these three legitimate ways, then it is your right to do with it what you will. Because he can't and he doesn't want to consider a patterned view of distributive justice. That's the only way that he can address this liberalism. Acknowledging that you all have different goals and trying to make it so that everybody has the freedom to pursue them. It's just that getting out of the way, the negative freedom, we were saying. But it still seems, you know, as liberals, they still underlyingly have that same goal of acknowledging the difference between people and trying to give them the freedom to react to that appropriately.

Right. To pursue their own goals. We also looked at an article, a review of this book by Nozick by Peter Singer, a still popular utilitarian. But this review is from 1975 called the Right to Be Rich or Poor. We'll give you a link to that or just look that up. And he says that Nozick is actually successful in bringing down Rawls, that Rawls. There are a lot of problems with Rawls. There are a lot of other authors that were already bashing on Rawls, but that really, if you accept as Your starting point, the notion that people have rights and you can't mess with them without violating those rights, then you're going to end up with something like Nozick's very minimal view of government just action, as opposed to something like Rawls.

What did you think of that? You think Rawls is in any danger here?

1:09:23 Wes: Most of his specific arguments against Rawls actually work very well. But I think, you know, what Singer is appealing to is ultimately, you're going to need to appeal to utilitarian considerations. Now, I think Singer would like to make rights derivative of utilitarianism, but I think there are problems with that as well. I don't see a problem with being open to both. To being open to the idea that our political theories might have to be open to both intuitions about rights and to utilitarian intuitions. And I don't think Rawls entirely gets away from that. So Rawls is sort of the compromise position between libertarianism and Singer's sort of utilitarianism. But Nozick has some very specific things he thinks are wrong with Rawls.

1:10:06 Mark: So one of them, he says that Rawls confuses two principles. This is on 184. You might think that what we need to figure out when we're talking about the advantages that we get out of cooperation is that, well, you've got the value that person A would have working by himself and the value that person B would have working by himself. And then when they work together, presumably the total value is greater or else they wouldn't bother to work together. So there's two different ways that you could think about distributive justice. In that sense, are we just figuring out how to distribute the added benefit over and above the total of them each working separately?

That's one thing. Or Nozick seems to think that's actually what Rawls should be concentrating on. But what Rawls actually concentrates on is just the total overall, not only just the added benefit of you guys working together, but but the entire product. And that there's no real way to figure out sort of how much each person contributed to the product and give you what you deserve out of that, your marginal product from including you in the group endeavor as opposed to not including you. So he thinks Rawls is just confused right off the bat that wouldn't it be much smarter to figure out a reasonable account of marginal products and, you know, not even be worrying about, oh, there's just this unknown added X that came about because we work together.

We have to figure out how to redistribute it. But that little bit is the only pie in question. It's not the whole pie. It's just that little bit of added stuff, and we should figure out really who deserves it based on how much they contributed. So that Rawls is illegitimately smuggling in some kind of utilitarian considerations in taking any other approach. He goes on with an illustration. He says, imagine that there are independent Robinson Crusoes on different islands, and they figure out a way to communicate with each other, but they can't actually help each other.

They can't actually engage in cooperative effort. He says, of course, it would be ridiculous if, let's say, you know, there are five people on these different islands, they'd been building their own shelters, they figure out this way to Skype each other. And if one of them said, oh, my island has many less coconuts than yours, so you guys owe me some of your coconuts, he said, of course, that would be ridiculous. Of course we wouldn't accept. We would say it is just to ignore that request. Whereas Rawls is going to say the question of distributive justice actually only even comes up when you're working together, that it is a function of social cooperation.

But Nozick wants to say, no, there is justice even in the cases where there's not working together. And that's based on entitlement theory. There's a lot of luck in maybe in what resources you have access to, but what you do with that access doesn't mean you deserve it morally, but it means you are entitled to it. And so why should it be any different when different people join together in a truly cooperative, you know, a factory or something like that? Is it really the case that it's impossible to tell who contributed how much and make some sort of awards based on that?

Does it really just have to be according to some pattern theory?

1:12:52 Stephen: Well, you know, there have been factories for centuries, and up until the 20th century, the system of distributing the surplus value created by highly articulated divisions of labor have resulted in a lot of people working for starvation wages, you know, and then at a certain point, they collectively bargained for more than that. And then the federal government in the 30s formally granted them the right to collectively bargain. So there were no longer labor wars. And it, like, worked pretty well. It's not as though we haven't lived in a world in which marginalism and labor has sort of found its, quote, unquote, natural price. And there are historical examples of that working out in a way that are largely unattractive to people now, and so we don't do it anymore.

1:13:42 Wes: Yeah, so that's one way of bringing in utilitarian considerations which says we can think about how this affects society and how terrible the consequences are. Rawls wants to give us a way of thinking about that without appealing to the utilitarian intuition. And he does that by setting us up with the original position and the veil of ignorance. He's trying to say to us, look, even just appealing to your own self interest, if you had to choose the kind of society you wanted, if you didn't know what your relative abilities and resources would be, you would choose a society pretty similar to the one that a utilitarian would choose.

Rawls is trying to give us a very strong argument to say, look, even if we only appealed to self interest, we really could get the same result. Now, you can accuse him of smuggling in utilitarianism because the result in some ways looks very similar, but I don't think that's such a strong argument against them.

1:14:38 Mark: So even the independent Robinson Crusoes, according to the veil of ignorance, if you knew that you were going to be on one of these islands and some of them might have shitty amounts of coconuts, and if you had some way to pass coconuts to redistribute them, then you would, behind the veil of ignorance, say, yeah, there should be some sort of redistributive scheme.

1:14:56 Wes: Exactly.

1:14:56 Mark: So even though they're not working together technically, the fact that they just even live in proximity and have some sort of relation would be enough to make the thought experiment slot in.

1:15:05 Wes: Yeah, I mean, Rawls assumes that your individuals are going to belong to the same society. Right. So if we assume that this is going to be a single society and the different Robinson Crusoe's will be pulled into that, then yes, I think there's

1:15:19 Seth: also something going on. I just pulled up the Singer article where he's talking about the factory that. But there's a conflation here with something like utilitarian principles and the idea of collective action. And you need to disentangle the two, because part of what's a challenge in both Nozick and Rawls, and this is sort of ties into your notion of the macro and the micro mark, is that having this discussion about how this plays out between two individuals and thinking in terms of like building the state of nature theory and then talking about how it plays out amongst a group of thousands of individuals are two very different things.

And to say, hey, the workers A thousand workers could collectively agree to go open their own factory and save their money, leave the jobs that they work at, put it in and is a very different thing than saying something to the effect of it's in the best interest or it achieves the greatest good. On some utilitarian principle if workers have some ownership interest in the factory. Or it would be better for all the workers to own the factory collectively than to have a capitalist that owns it and the workers receiving a wage from that capitalist.

Those are two different things and they seem to be conflated in here to me.

1:16:37 Mark: Continuing the next part against Rawls189 or so apparently some parts of Rawls give reasons for accepting Rawls's principles of justice outside of the veil of ignorance. That he has a section where he says we have to convince the person who's least well off to be okay with that. And for that section, if that was meant as a standalone argument, it wouldn't work to justify the entire system. Because as Nozick, I think, rightly points out, once you exit the veil of ignorance and you're saying we have to justify it to everybody, then you're back to a social contract theory.

1:17:11 Wes: This is bogus because he's not saying you have to convince that in the original position you have to to convince someone who knows they're going to be least well off. He's saying that people in the original position will be thinking about what the least well off are going to think because you have to ensure their cooperation. In other words, you don't want to end up in a society where if you're rich, you're in danger of getting your throat cut. So there's nothing preventing you in the veil of ignorance from thinking about those sorts of possibilities. What if I do end up with a lot? We want some kind of situation in which that doesn't, doesn't endanger me.

1:17:45 Mark: So we're saying this is, this whole section is a straight up misinterpretation of Rawls. And so Nozick's argument that, well, if you think you have to convince the least well off to accept things like in other words, if there was more equality, then you would actually be worse off. That's the argument you give to the least well off. But you should have to convince outside the veil of ignorance, the most well off, why they should want to participate. And clearly on most redistributive schemes, they're not coming out ahead ahead of, you know, if they just ignored the poor.

1:18:11 Wes: I consider this to be the greatest in the book the Greatest Misrepresentation of Rawls, and he tries to argue this through most of it in a footnote.

1:18:18 Seth: That's a championship strategy.

1:18:22 Wes: It's a misrepresentation because of course, in the veil of ignorance, you don't know. You're not trying to convince your fellow people behind the veil that it's not that you know someone's going to be less well off and so you have to convince them to come along. It's you're thinking about again, you're thinking about the result, what the least well off will think once the society is formed. That's not a violation of the veil of ignorance, that's just part of your calculations. He casts this as you're thinking about what's fair to the least well off, but you're not thinking about what's fair to the wealthy, but really you're just calculating.

You're making an informed bet where you want to minimize your own risk, so you minimize your risk by producing a society in which again, the least well off aren't so unhappy that they're going to completely destabilize the society. And you're not thinking about the interests of the most well off in the same way. Not because you want to be unfair to them and want to be a bleeding hard liberal to the least well off, but because the fact that someone who has billions of dollars and is getting taxed heavily may not be happy about that, but they're not going to create the same sorts of societal disruptions that a peasantry would during, let's say, the French Revolution.

So it's all calculation based on self interest. And I don't see any argument here that those calculations are, you know, that he's getting them wrong.

1:19:39 Mark: What about just on the next page, 190, he asks, still, we should question why individuals in the original position would choose a principle that focuses upon groups, right, the least well off group rather than individuals. Won't the application of the maximin principle, that is, maximize the welfare of the least well off, lead each person in the original position to favor maximizing the position of the worst off individual? And then he, you know, talks about how that's obviously be ridiculous because then like the most depressed possible person, there are some people that are so poorly off that it doesn't matter how many opportunities or whatever you're going to give them, they're still going to be, as an individual, the worst, very, very poorly off. Should I read more of the section to make this clearer?

1:20:16 Seth: Yeah.

1:20:17 Mark: The second principle, which Rawls specifies as the difference principle holds that the institutional structure is to be so designed, the worst off group under it is at least as well as the worst off group. Not necessarily the same group would be under any alternative institutional structure. If persons in the original position follow the maximin policy in making the significant choice of principles of justice, Rawls argues, they will choose the difference principle. Our concern here is not whether persons in the position Rawls describes actually would minimax and actually would choose the particular principle Rawls specifies. Still, we should question why individuals in the original position would choose a principle that focuses upon groups rather than individuals. So in other words, there's nothing in the context that would help clarify this.

1:20:53 Wes: Well, let me just give an example. You're conducting this calculation on the original position and you're thinking about minimizing your risk and you want to cover the worst case scenario. So you say, okay, I might be poor, so we're going to allow for other reasons, inequality within society, but only to the extent that I would be better off under that introduction of inequality, or that group would be better off, but why not, as a person in the original position, not just think, oh, I may belong to the poorest group, but maybe I belong to the depressives or the alcoholics, so I can't have any inequality in a society except to the extent that it improves the position of those particular groups. The question is how narrowly we define our groups and what sort of scale we're using. Not just poverty, but some other sort of measure of well being.

1:21:42 Mark: He says. To be sure, this principle that is referring to groups instead of individuals would reduce questions of evaluating social institutions to the issue of how the unhappiest depressive fares. Yet avoiding this by moving the focus to groups or representative individuals seems ad hoc and is inadequately motivated for those in the individual position. Nor is it clear which groups are appropriately considered. Why exclude the group of depressives or alcoholics or the representative paraplegic? And it goes on after that to make the general point that just because some group is doing well and another group is doing poorly, it doesn't fall from that, that the first group's doing well is causing the second group to do poorly. So he's just trying to take apart the idea of distributive justice.

1:22:20 Stephen: But if you're really, truly behind a veil of ignorance, aren't you tabulating the social cost of untreated depressives, alcoholics to something like the social whole or the person you're most likely to be, which may or may not be individually depressed or alcoholic. The same way that the billionaire will be grateful that his veil of ignorant self who had no idea that he was going to have a billion dollars, he'll still be grateful for that veil of ignorance self for preventing his head being put on a spike by an economically disenfranchised peasantry.

The person who turns out not to be an alcoholic or a depressive is still grateful for minimally humane mental health services and subsidized AA style rehabilitation services. Because then his public landscape and much of his private landscape is not filled with depressives and hopelessly depressed, suicidally depressed people and drunks. The advantage can work both ways, right? That you can be the most mentally healthy human being after you exit the veil of ignorance. You weren't handicapping, which you would be. You were handicapping in some sense both, which is quasi utilitarian.

1:23:28 Mark: So he spends the rest of this time throwing away the argument that Wes objected to so much that Rawls is concerned with justifying to people outside of the original position. If all that's left is the original position arguments, which is what should be the focus, then Nozick has to debunk that by saying the kind of things that we said in the Rawl episode, that it's too abstract. Once you get rid of the specifics, including what talents you have, is there enough to make a decision based on that? There's something incoherent about the original position.

And the way Nozick does this is to say it's question begging against any history based view. Like the entitlement principle. Right. That by necessity, if you're saying we don't know any of the past facts about society, we don't know not only what role individuals are going to be in, but what happened before that. If we just imagine that we're going to have some role or other, then the only thing we can look at in deciding whether we would accept that is just the pattern of current distributions. Now do you accept that as a legitimate objection to Rawls?

I don't know that I do. I don't see anything in the original position that would rule out saying we're going to let anybody have the goods that they just happen to have inherited and then let the dice roll as they may like. I thought that was something Rawls explicitly considers and rejects. I don't see any force to Nozick's argument here at all. Was anyone more sympathetic?

1:24:45 Wes: Sorry, where are you talking about?

1:24:47 Mark: I'm talking about it's pretty much the rest of the chapter here, page 203. For instance, we would be ill advised to accept Rawls theory and his construal of the problem as one of which principles would be chosen by rational self interested individuals behind a veil of ignorance. Unless we are sure that no adequate historical entitlement theory was to be gotten. That's just a statement. That's not an argument.

1:25:08 Wes: He's saying that Rawls is presuming that the entitlement theory of justice isn't correct.

1:25:14 Mark: Yes. And he's saying there's some feature of a construction in virtue of which this is the case.

1:25:19 Wes: He's thinking that behind the original position our participants might be operating on the entitlement principle. They might just happen to think that that's just again for Rawls, we're deriving principles of justice from self interest. So I'm not sure how Nozick thinks someone is going to smuggle in a conception of justice into that.

1:25:37 Mark: On 202. People in the original position either directly agree to an end state distribution or they agree to a principle. If they agree to a principle, they do it solely on the basis of considerations about end state distributions. The fundamental principles they agree to, the ones that they can all converge in agreeing upon, must be end state principles. So he admits in this section that well, you could Jerry, rig something like my entitlement theory based on the original position. So you could say, well I think that society would turn out best if everybody has whatever they inherited or has justly. But based on Rawls picture of the veil of ignorance, nobody's going to agree to that any more than they are going to agree to a crapshoot. If you roll a six on the die, then you are pathetically, irredeemably poor.

1:26:19 Wes: He just thinks we're just trying to minimize. They're trying to minimize their risk. Again, it's like a gamble and you want to ensure there's a safety net and you don't lose everything. There's still some risk, but you're just,

1:26:29 Seth: yeah, yeah, I don't know that this is worth getting wrapped around the axle about. But, but when Nozick says that Rawls's construction of the original position here, what he says here on 201 to 202, the fundamental principles they agree to, the ones that they can all converge in agreeing upon must be end state principles. Rawls's construction is incapable of yielding an entitlement or historical conception of distributive justice. So I guess this is a bad thing from his perspective. But I think what he's trying to say is that there's a restriction on the way Rawls has set up the original position such that the people in the original position, when they're agreeing on what the principles are that they're going to adhere to when they leave the original position, it's restricted to some subset of principles that only include the end state and not these historical.

But I'm kind of unclear on why would that be a bad thing, right?

1:27:25 Wes: It can't be a bad thing because if it weren't restrictive, then the original position would lead us to no conclusions whatsoever. And that doesn't mean he's assuming that the entitlement conception is wrong. It's just that assuming self interest and people in that position, reflecting on it, you don't get entitlement theory. That doesn't mean you've assumed entitlement theory is wrong. It just means it's not a result of your initial presuppositions, as in any theory. So it's not a legitimate objection.

1:27:51 Stephen: Let me see if I have this right. So let's say at one extreme you have a world of Wilt Chamberlains, right, where where every state D2 through infinity is a series of just transactions. And then at the other extreme you have history just is synonymous with pillage and theft and is so arbitrary that you can't disentangle it justly at all. Since just at some temperamental level, Nozick is way more disposed to wanting to at least shade in the direction of the first rather than the second, he's less willing to impose something like the radical agnosticism of a veil of ignorance as people are deciding what the principles of justice are.

Because what it does is it sort of assumes ahead of time that since history is more like the latter, you need that radical agnosticism in order to get people to at least think in just terms. But if you're inclined to think it's more the former, you would say, well, of course you want some notion of historical and entitled holdings. You know, you have no sense of how much you're going to be taking away from people. What if you go through the veil of ignorance and everyone's a Wilt Chamberlain and all of a sudden you really are just taking away just holdings.

That's excruciatingly unjust. But you've from the beginning imposed a total veil of ignorance on the assumption that you have to be agnostic about who has what right, because you don't think what talents people have or what monetary inheritances they have. Are inherently just. I sort of see where the force of the criticism comes from. Am I in the neighborhood of something? Yeah.

1:29:24 Mark: So on the rest of page 203, I think, you know, Nozick actually really admits what you were saying, Wes, that he says, have we done anything other than focus on the particular features, in other words, the things about the veil of ignorance that would not yield a historical analysis. And say this makes Rawls construction incapable in principle of yielding an entitlement or historical conception of justice. This would be a criticism without any force at all. For in the sense we would have had to say that the construction is incapable in principle of yielding any conception other than the one it actually yields.

Okay, it seems clear that our criticism goes deeper than this, and I hope it is clear to the reader. But it is difficult to formulate the requisite criterion of depth. Lest this appear lame, let us add that as Rawls. He actually uses the word lame. Let us add that as Rawls states the root idea underlying the veil of ignorance, that feature which is the most prominent in excluding agreement to an entitlement conception is to prevent someone from tailoring principles to his own advantage, from designing principles to favor his particular condition.

But not only does the veil of ignorance do this, it ensures that no shadow of entitlement considerations will enter the rational calculations of ignorant non moral individuals constrained to decide in a situation reflecting some formal considerations of morality.

1:30:34 Wes: I don't see the force of this. It remains lame. I don't.

1:30:38 Mark: Yes, and he keeps struggling until the rest of the. There's a footnote in there until the end of that section.

1:30:43 Seth: This is where a good editor really would have helped him.

1:30:47 Mark: He says, you know, there's no way these, they don't even enter into it to be cast aside historical considerations, which again I don't agree with. I think that you could consider in the original position that maybe we should just go with inheritance. But yes, you would cast them aside because that's a shitty outcome. Too risky.

1:31:03 Wes: Exactly.

1:31:04 Mark: So either he's wrong, he's really trying, let's give him points for that. But what Stephen was saying made me think of the. I guess the one big topic here that we had touched on yet, which is this redistribution of natural talents. We're not just talking money, which you could think that, ah, money's kind of arbitrary. Society made up money. Without society there would be no money. So really society, the government should have a great prerogative to redistribute. According to Rawls, it's even just the money that would result from you being a Wilt Chamberlain, from you having great natural talents, well, that's a matter of luck that you have those talents.

So really, as part of redistribution for justice, distributed justice to occur, that you should be obligated to use those talents not just to enrich yourself, but to improve everybody else's station. And Nozick thinks this is a really weak part of Rawls's account, because don't we think that just like you own your own body, you own your own talents, that your talents, in fact, compose who you are? They're not just a possession that can be distributed. It would be like, what if you were the only one that had eyes? Should you be required to have one of your eyes surgically extracted and given to a blind person so that they could have one of your eyes?

Wouldn't that be just grotesque? So in the same way, isn't what Rawls is asking about talents grotesque?

1:32:19 Dylan: Do you own your own luck? I mean, I see where the objection from Nozick is coming, that if you own your body, don't you own your abilities? Essentially, don't you own your brain and all those things that come with it? And to the extent that you own your body, say you won the genetic lottery, don't you own the fruits of that? More than just the fact that you have the prerogative to make decisions about how to use it, don't you have the prerogative to benefit from that luck? I've thought that's often the force of the libertarian argument, but I was thinking earlier that that was a big part of Nozick's argument is the focus on the individual. And the micro is really saying something like, well, we all deserve our luck.

1:33:06 Mark: We're entitled to it. We don't deserve it.

1:33:09 Wes: He accepts the idea that we don't deserve anything, but we're entitled. We're entitled just in that very basic sense of entitlement theory. Yeah, go ahead.

1:33:18 Dylan: Yeah. So we're entitled to our luck. Whether we're entitled to our luck is a different kind of question than the whole social question. And I'm not sure exactly what to do with that. I mean, the veil of ignorance argument in Rawls tries to basically take luck out of the equation. Basically, you're not allowed to gamble with it. And I don't remember if Nozick puts this criticism to Rawls, which would be that, well, why wouldn't someone be willing to gamble against it? Why would they? Based upon human nature, it seems unlikely that everyone would choose to operate in the veil of ignorance.

The way Rawls suggests, because people have different thresholds individually for the amount of. Of chance they're willing to take. And that seems to me actually maybe a decent criticism of Rawls, that from the standpoint of the individual that he's glossed over or chosen one particular version of quote, unquote safe. Right. But the distribution of our toleration of risk is not uniform. And people are routinely willing to make huge risks and claim they're willing to suffer the consequences and often do.

1:34:28 Seth: Yeah.

1:34:28 Wes: He assumes people are good at gambling and calculating pot odds. Let's say Rawls does. Yeah.

1:34:35 Dylan: But I would have expected along the Wilt Chamberlain argument that we are entitled to our luck, that Nozick would criticize Rawls, saying that he's not letting people be entitled to their luck.

1:34:46 Wes: But the thing is, he is. I mean, there is inequality in the Rawlsian society, and that inequality does line up along the lines of talent and so on. It's just that, you know, there are certain restrictions on it, and those restrictions, honestly aren't that severe.

1:34:59 Mark: Entirely owned your luck.

1:35:00 Wes: Yeah.

1:35:00 Dylan: I agree with you that Rawls does let people own their luck more than that. And just like there's a stronger version of the individual that's not strictly uniformly communitarian. Again, I don't remember Nozick talking about it in this particular way, but it seems to me a much stronger Nozickian criticism of Rawls than the one we were just talking about.

1:35:22 Wes: Suppose, I mean, the original position. I'm not giving up my ability to be a Wilt Chamberlain or let's say, someone who's very, very rich in order to make sure that I can lead a minimally decent life. What I'm doing is I'm weighing the inconvenience of, let's say, having my billions taxed and the inconvenience and frustration of that and that sense of violation versus the terrible catastrophe that would be for me to live in a society in which there's no safety net. So it's not like you're deprived of that ability to be a Wilt Chamberlain or to have billions and the suffering that you might incur. I think this part of Rawls is convincing. I mean, it's nothing compared to the alternative. Right.

1:36:03 Stephen: And also, you know something about human history and your odds, if you're moving through a veil of ignorance.

1:36:08 Wes: Exactly.

1:36:08 Stephen: Your just chances of having off the bell curve talents or money, by the very nature, are pretty low. The other thing is, are you asking people in 1928 or asking them in 1932. Your risk tolerance and your sense of whether or not you own your own luck or your own fate or deserve your own fate, you know, are highly specific to the social circumstances. And if you'd asked people in 1928 or in 1992, you would have gotten a totally different answer than if you asked them in 1932 or 36, or your sense that you don't deserve your own fate when there's 40%. I mean, if you go to Spain right now and there's 40% unemployment among young people, the answer you're going to get from them compared to their equivalent in 1986, you know, I mean, it'd just be interesting to see how discrepant those were.

1:37:01 Mark: Right. So Nozick's gonna insist on that distinction between deserving and entitled to. And that's what a lot of this comes down to for both. You know, that's something that Rawls established. That's one of the things Singer objects to with this whole thing, is that you can't disentangle the morals from these questions of distribution. I do think there's something to the objection against Rawls that this whole basing something sheerly on what you would agree to under just purely self interest, even behind the veil of ignorance, it's not going to be really sufficient to get you what you want.

So anyway, this is channeling Sandel actually more than Singer, to say that there's something wrong with ripping the moral out of distribution. It seems like Nozick's got it in there in that the reason that we would agree to the three principles of legitimate acquiring of property is because they seem to us to be just. But if then we say, well, those basic rules seem to be just, oh, but then we don't pay any attention anymore to our moral intuitions when we're looking at the later applications of those. That's exactly the same nonsense he was accusing Rawls of.

Right? Right. Where if you say the basic principles are based on moral considerations, then the derivations should also be based on moral considerations and not just in a geometric way that you can only tell whether the transaction was just by tracing backward historically, you should also be able to look at the new micro transaction itself and reflect morally on it and say that worker is working for subsistence wages. And that's a lot of bullshit. Any more about Singer's uniform denunciation, really, of both of them in favor of utilitarianism?

He addressed specifically a part of Nozick that we haven't brought up. We haven't spelled out this idea of the Experience Machine. I think we might have brought that up in our utilitarian episode a long time ago. This was actually in a ethics textbook that I had read. You know, we read some utilitarianism and then read this chunk of Nozick on the Experience Machine from chapter three. So the idea is it's supposed to be an argument against a uniform conception of the good, because you might say, if you are a utilitarian or really any other kind of consequentialist where the good for humanity is to maximize X, then the way that usually gets translated to is something about your own experience.

And so imagine that you were put in the Matrix, essentially, and you were allowed to have the most awesome, pleasurable experiences as possible, and you could do it all the time. And if you did that with everybody, wouldn't that maximize the good? Pleasure, happiness, for everybody to do that? And Nozick says, well, no, obviously we would not choose to plug into the Matrix, even if, as in the movie the Matrix, the reality is much bleaker than the experience machine would give us. He thinks most of us in our right minds would reject that crap because that's not what human meaning is about.

It's not about having any sort of particular experience, however pleasurable or awesome. It's about actually doing the thing.

1:40:04 Dylan: That whole thing turns on your memory, right? It turns on whether you're aware of it. Like, if you can't make the distinction, then it's a theoretical argument about whether or not you would prefer to know what the real is like or not what the real is like. And to the extent that Nozick is just saying, well, yes, we all prefer to know the truth or know what

1:40:22 Wes: the real is and have contact with

1:40:24 Dylan: reality is the way you have contact with reality. But if you have no way of knowing that distinction, then the point is moot. So either you have to take the blue pill, right, or you choose. I mean, the reason the one guy, he wants to go back is the stipulation is that he never remembers, right? Because he knows that there'd be the pain of remembering,

1:40:46 Mark: right? So you're actually giving the version that works for the actual movie, the Matrix. The Experience Machine, I think, is ambiguous. It doesn't sound like you're actually in the same simulated reality with other people. And that's a really important distinction in the way that Singer describes it, is that, yeah, if we are each on our own separate orgasm machine, that would not be so great, because what gives our lives meaning is actually helping other real People. But if. And this is not something Singer says because he hadn't seen the Matrix at this point, but if everybody was plugged together into the same simulation, they could still help each other.

They could still get meaning in the regular old way. So maybe you would be fine plugging into that. But the example as stated by Nozick, not allowing that, yeah, of course that's not going to work. But that doesn't actually prove anything against utilitarianism or against using our experience as a means to measure value.

1:41:39 Wes: Yeah. So I think Singer is right that there's no knockdown arguments by Nozick against utilitarianism. I mean, the case with animals is probably stronger, actually, that objection. Do we want to talk about that?

1:41:50 Mark: Well, I thought Singer said that Nozick actually, without spelling out what Nozick's argument is, had something right about animals, that we actually have to include them in our moral calculations. I didn't remember that being an objection.

1:42:00 Wes: Right. But I think we get the typical utility monster objection to utilitarianism. Right. Where it really is broader than animals. Ultimately, it's about one person being able to, let's say, kill other people because his happiness outweighs the suffering of the victims or something like that. So that's sort of there in Nozick's account, and I don't know how Singer would respond to that. I don't think he did respond to that. So there are typical back and forth between the critics of utilitarianism and utilitarians, and that gets very intricate.

But I think overall Singer is right that there's no knockdown arguments by Nozick against utilitarianism. And as far as I'm concerned, he just doesn't concern himself with that as much as he concerns himself with Rawls. But I don't think that he's right that Nozick's arguments against Rawls are convincing. So, for instance, he buys the thing that we thought was lame. Right. Or at least I thought was lame. Why should the best off cooperate? Why does Rawls only worry about getting the least off to cooperate? But again, that's a mischaracterization if you

1:43:02 Mark: just say the veil of ignorance is ultimately not well motivated. And this is just what Nozick says right at the beginning of his section on Rawls, that it assumes that some sort of redistribution is just that some sort of end state view of justice is correct. Whereas Nozick has already spent half the book, he thinks, proving that that's not the case.

1:43:21 Wes: We have to prove to the point

1:43:22 Mark: of view of rights.

1:43:24 Wes: But he doesn't prove that. He just assumes that. He assumes entitlement theory is correct. He never tells us that he's proving it or that he, you know. So that also just has to appeal to our intuitions. And there's no. Again, it's not like someone in the original position is going to say no. My intuitions are the entitlement theory holds because that's not the way that you could say the veil of ignorance and the original position are useless, and they're not really the way that we ought to derive our principles of justice. But then I think you ought to present a strong argument against it, because I think intuitively it's trying to get at the idea of people cooperating to set up a society and doing that in a way that's going to be fair.

And I think it's quite intuitively appealing in that sense. So you'd have to argue more directly against the mechanism of the original position. I just don't think Nozick does that. The whole thing that it assumes what it wants to prove. Again, I don't buy that just because it doesn't end up with entitlement theory.

1:44:18 Mark: I don't buy any other points from the text or we just want to give some closings and get out of here.

1:44:25 Wes: Let's get out of here.

1:44:26 Stephen: Yep.

1:44:27 Dylan: Yeah. I'm ready to leave Nozick behind for the second time.

1:44:32 Mark: Dylan, give us your farewell to Nozick.

1:44:36 Dylan: For me, even in revisiting him, I get stopped at the very beginning with the extreme focus on the individual outside of their connections with other people in society and that role in us as human beings. And I don't know if that is metaphysical or sociological or whatever kind of problem, but it, to me, just trips up right from the very beginning because of that. And so I unfortunately find myself while, you know, trying to articulate and understand exactly what he's saying, because I find that mistake at the beginning so wrong in so many different ways. I find it really hard to get much further than that.

1:45:20 Mark: Who else?

1:45:21 Seth: On the general theme of his sparse characterization of things to serve the purposes of his argument, the second time around, I much more got the sense. I've kind of forgotten what it's like to read analytic philosophy. And I mean, like, not a book like this, but all those annoying articles where somebody says, for the purposes of this article, first of all, the article is going to be called something like Towards a Theory of X, which is a way of saying, I'm not actually going to provide anything of use here. I'm just going to clarify one small point for the book that I might write for my tenure application at some point in the next 7 years and everything gets defined to the thinnest possible margin for the purposes of serving some kind of a very, very straightforward argument.

And even though this is not written in that style, it certainly feels that way to me and I think it's a valid counterpoint in some respects to Rawls and incites certain conversation. It's not compelling to me as it stands. And I have to ask myself, I mean, if this was the text you were going to as a libertarian, to give you the theoretical underpinning you were looking for, you're not doing a lot of work with respect to Singer, I would say, even though Nozick doesn't take on utilitarianism head on, Singer himself in that article, even though it's 1975, basically says the reason why is there are no good theoretical arguments for there are no good systems for utilitarianism.

There are no good arguments in favor of it right now, or at least theoretical underpinnings for it. And I still feel that's true today.

1:47:01 Mark: He doesn't think there are good arguments for utilitarianism or against.

1:47:04 Seth: No, no. In the article Singer says part of the problem is that there's not a good utilitarian like theoretical treatise.

1:47:12 Wes: Yeah, you just have to appeal to that intuition. But each of the alternatives suffers from the same flaw. Entitlement theory, not virtue ethics.

1:47:21 Seth: Wes.

1:47:22 Wes: Yes, except for virtue ethics.

1:47:23 Mark: That's the key to unraveling the whole thing is nobody talks about virtue ethics in this. Well, I was under the impression before returning to this that Nozick was actually successful in reducing a Rawlsian position, as Singer characterizes it, to his own right to say that the veil of ignorance is fundamentally screwed up for reasons that we talked about in the Rawls episode. You don't even have to read Nozick at all to get what might be screwed up about this theoretical apparatus. And then Sandel provides some other reasons. But now looking at the specific arguments against Rawls, I don't think any of them are particularly good. So I, I don't think he's reduced all rights based theories to a single irrational, unfounded Nozickian structure. I think that Rawls pretty much emerges unscathed from this.

1:48:13 Stephen: I agree. And even this time around strengthen my appreciation for Rawls. Because if the central problem of a libertarian argument, and Nozick's argument in particular, is that you can't get the tabula rasa that you would need in order to assign even basic entitlement to people's holdings. Then in a weird way, the veil of ignorance is a real world fact. It's not just a thought experiment construct. It's the agnosticism we have towards the current holdings and patterns of holdings in the actual world. We don't have a firm metaphysical theory or satisfyingly ironclad metaphysics of what one self's relationship is to one's talents in terms of deserving.

We don't have an actual solid sense of what historical patterns of theft and pillage had been relative to current holdings of wealth. We don't even have an empirical sense of to what degree IQ is an artifact of our social circumstances or our genes or an expression of our genes. Therefore, veils of ignorance fall upon our lives everywhere and at every point, Especially on exactly these most critical issues about whether you want to save desert, justice or entitlement. It doesn't seem to me to matter that much at the end of the day. Therefore, we can get ourselves into a Rawlsian state of mind without having to enter into the thought experiment.

We accept that we don't know and therefore we attempt to pattern judiciously. Right? Therefore we're in the frame of mind to say because we can't know. Let's think instead of in terms of desert or entitlement, let's assume that we can't know these things or have those things. Therefore let's think in terms of the least well off or balancing the risk of having something unjustly appropriated by the monopolistic state against the peasants sticking my head on a spike versus maybe my beloved sister in law takes to drink, if you see what I'm saying.

Anyway, this time around it suddenly made me think, well, of course that the inaccessibility of the tabula rasa or knowing what these historical patterns were with any degree of precision puts you behind a kind of real world veil of ignorance. Therefore from behind it you say, well, I mean, I hate to put it in these terms, but they're but for the grace of God and you therefore construct society accordingly.

1:50:39 Wes: Yeah, it's just a way of getting at, let's say the golden rule, do unto others. The veil of ignorance is not some arbitrary thing. It amounts to the fact that we really don't know what's going to happen. And if we exclude for a moment more robust moral concerns like you shouldn't treat people that way. If we say we're Just going to simply be selfish. And it's not like Rawls is arbitrarily imposing that condition. He's just saying, let's be minimalist about this and use the core of self interest to move away from it. So if I'm wandering around the world acting purely out of self interest and I'm good at calculating, then I am going to take into account the fact that I don't know what's going to happen and that there are risks, so that I don't accept the principle that I get to shoot anyone I want because then once applied in principle, I could be the one getting shot.

That's just what the veil of ignorance is in a nutshell. It's trying to capture the essence of justice in a amoral way.

1:51:30 Stephen: But I'm saying something even slightly different from that, which is that if I see my Range Rover as an expression of something arbitrary about myself rather than as an expression of something intrinsic about myself, maybe I'll accept a world in which I can only have a Volvo because I now prefer a Volvo and a just society to a Range Rover and an unjust society. Right.

1:51:58 Wes: I hope you would prefer that.

1:52:00 Mark: Might not even be there but for the grace of God. You might have a Regarding Henry situation and not have your talents anymore because you got shot and brain damaged. It might just be that. That you think you're one of the Randian super talented. Maybe you're actually not. Maybe when the verdict comes in, even about your present situation, there's enough ignorance involved.

1:52:20 Wes: Exactly.

1:52:21 Stephen: Yeah.

1:52:21 Mark: Maybe those stock options you think are worth so much are worth nothing.

1:52:26 Wes: So I will say as my closing, I unfortunately had to unexpectedly come down to Florida to help my mom move. So I'm coming to this with limited preparation.

1:52:37 Mark: But you prepared four times as much last time. So even the residual super super prepared.

1:52:43 Wes: Yeah, well, I had my notes give

1:52:44 Mark: us whole lecture series on it, but also.

1:52:46 Stephen: And then to honor Nozick driving to your mom's. You didn't wear your seatbelt.

1:52:53 Wes: Yeah, I did it on a Harley with no helmet and yeah, you knew

1:52:57 Mark: you were talented enough to drive like that.

1:53:00 Dylan: You're one of the first.

1:53:01 Wes: I live according to the, you know, the principle of the badass. All right. But, yeah, despite all the criticisms we've offered Nozick, in all honesty, I do have a higher opinion of it than Sandel. And I don't think he's arguing in bad faith to sort of get at the foundations of libertarian argument. And what I think is the shaky foundation of simply assuming entitlement theory is very clarifying. And then it sort of completes this utilitarianism, those sort of the three points of view. Well, let's add four with Sandel, but it's a clarifying exercise in many cases. So even where I disagreed with him, obviously I learned a lot.

1:53:41 Mark: All right, well, I think this was superior in every sense to our first discussion. So you folks did not miss anything.

1:53:48 Wes: Are you saying that. Is that a no?

1:53:50 Mark: I do, I do. I think this is.

1:53:52 Wes: Are you doing a pattern distribution of compliments there, Mark?

1:53:58 Mark: We are much more mutually engaged. Thank you so much, Stephen, for rejoining us.

1:54:03 Stephen: Thank you so much for having me. It was a total pleasure.

1:54:06 Wes: Yes. Thanks again.

1:54:08 Seth: Yeah. I consider your reappearance on the show nothing short of heroic.

1:54:15 Stephen: Desperate.

1:54:17 Wes: Mark, you did remember to turn on the recording, right?

1:54:24 Mark: Next time we'll be discussing Kant's Critique of Judgment, the first book of the first part. For a specific account of what to read, go to partiallyexaminedlife.com where you can also read a lot of awesome blog things. You can sign up for our semi daily newsletter blog thing. You can also go on Facebook and be overwhelmed by the amount of activity there. You can interact with us on Twitter, on LinkedIn. There are short versions of a lot of the episodes on YouTube that you can send to friends to get them way into this. We are an Amazon affiliate, so I encourage you to go on our site and click the Amazon link when you're about to buy anything and then we'll get a cut of your purchase at no additional charge to you. We are very much supported by your donations as well. So thanks everybody and good night.

1:55:14 Seth: Thank you everybody. Good night.

1:55:15 Wes: Good night.

1:55:15 Dylan: Good night. Night.

1:55:16 Stephen: Good night,

1:55:41 Wes: Sam.

1:56:13 Unknown speaker: He never could stay in one place. He cannot keep up with her pace. Will she come out of hiding to save him? Biting down on my blanket. He's hosting cuz there's no one to turn to, no one to turn to. Each day sounds of loneliness prevail. You can't break his tears down into detail. Is it hunger or lack of companionship? No matter it makes him scratch the floor into bit. There's no one to turn to, no one to turn to. There's no one to turn to, no one to turn to. You need them but they don't need you. You want them to need you, but

1:58:04 Mark: they just need him to.

1:58:06 Unknown speaker: And she's not there but he can feel her everywhere. Sam. He never could stay in one place. She's always hiding in the face.

1:59:07 Mark: Fake trace

1:59:10 Unknown speaker: and there's no one to turn to. No one to turn to. No one to turn to. No one to turn to.

1:59:32 Wes: Sam.