Finnis’ Criticism of Nozick’s Theory of Distributive Justice: Can Libertarians Praise Charity?

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In my first ever blog post I thought it would be a good idea to criticize one of my academic heroes, Robert Murphy. I looked a little foolish and probably stepped too far out of my expertise. Well I’m back to analysis of my heroes and this time I’m trying to defend Robert Nozick from another intellectual giant, John Finnis. Here, however, I do not mean to attack Finnis. Rather, I hope to illuminate how a libertarian can respond to what is an excellent question from Finnis about our own theory of distributive justice.

Finnis’ Natural Law and Natural Rights is an absolute classic from the twentieth century which produced some of the finest legal literature from Hart to Fuller to Finnis, all of whom have been indispensable in my discovered love of philosophy. In Chapter VII, Part 6, “Justice and the State”, Finnis offers a critical analysis of Nozick’s theory of distributive justice from his book, Anarchy, State, and Utopia. Nozick’s theory of distributive justice is summarized in his book as follows:

  1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding
  2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, in entitled to the holding
  3. No one is entitled to a holding except by (repeated applications of 1 and 2

Nozick, in line with most contemporary libertarians, accepts John Locke’s homesteading principle as the “principle of justice in acquisition”. That is to say that the first person to labour over a previously unowned resource, or “mix his labour with the land” as Locke puts it, becomes the rightful owner of that resource. Nozick accepts voluntary contract as the “principle of of justice in transfer”. Nozick concludes, therefore, that if someone has justly (through voluntary homesteading and contract) acquired property, no one, including the state, can justly deprive them of that property.

Finnis appropriately summarizes Nozick’s views on taxation: “Systems of taxation for purposes of redistribution and social welfare are therefore unjust; they amount to the imposition of forced labour, an unwarrantable infringement of a man’s rights over his own body, effort, and property, his rights not to be forced to do certain things.” Finnis, however, is skeptical about Nozick’s conclusion. Finnis criticizes;

The plausibility of [Nozick’s] argument comes entirely from its focus on the coercive nature of the State’s intervention as an agent of (re)distributive justice. Suppose we abandon this perspective. That is to say: leave the State out of consideration for a moment and ask instead whether a private property-holder has duties of (re)distributive justice. . . . Then we will find that Nozick has little indeed to say in favour of the assumption that what one has justly acquired one can justly hold without regard for the needs, deserts, or other claims of others.

On the surface this appears to be a genuine problem for the libertarian. Are we to say that there is no moral obligation for us to give up our holdings for the benefit of others? Admitting this would amount to a rejection of charity as morally praiseworthy, certainly no easy task for an ethicist (Randians excluded). So how can we respond without falling into this trap?

Libertarianism is a legal philosophy which does not encompass all of morality. Libertarianism is concerned with the just distribution of physical human bodies and non-human resources of the earth. When we ask what is just, we are always asking, “Who may legitimately control this physical thing and in what way?” And for the libertarian, the answer is an easy one: First, we are the legitimate owners of our own physical bodies. Second, we become the legitimate owners of God-given resources when we are the first to mix our labour with them. And finally, we can become the legitimate owner of an already appropriated resource via title transfer in a voluntary contract. There are no other legitimate ways to own property. This is, obviously, the essence of Nozick’s theory of distributive justice.

Does this mean that there can be no moral prescription to give up title of currently owned property to others? Absolutely not. There are many prescriptive statements that can be made that do not breach Nozick’s theory of distributive justice. For example, “Jim should give 10% of his income to the church,” “Josh should bake a cake and give it to Sally,” “Jeff Bezos should donate 99% of his wealth to the Canadian Communist Party,” “All Capitalists should relinquish title of their capital to their workers.” Obviously, I do not actually hold these views. But, I think it is important to demonstrate that our moral claims regarding property may include obligations to give up property to others.

What we could never prescribe is the use of stealth, force, or fraud to deprive others of their just holdings. We could never say, “Jim should be hanged if he does not give 10% of his income to the church,” “Sally should sneak into Josh’s house and take his cake,” “The Canadian Communist Party should defraud Jeff Bezos out of 99% of his wealth,” “Capitalists should have their capital taken from them by a worker’s revolt.” There is nothing contradictory saying, “A should relinquish title to property x to B, but B should not use stealth, force, or fraud, to obtain property x from A”

Intuitively, I think there is a lot of merit to these convictions. There are numerous examples of moral behavior that we do not believe should be violently enforced. Certainly, we think people should be kind, but we do not think that they should be kind at the point of a bayonet. We think that people should look after their own health, but to force people to do so at gun point feels intuitively wrong. The same can be said for charity. We think that people should be charitable, but we don’t think they should be forced to be charitable. It is precisely the coercive nature of the state that makes forced charity, or taxation, immoral, which is why it is necessary for Nozick to highlight it in his writings.

Further, as Murray Rothbard exquisitely put it, “No action can be virtuous unless it is freely chosen”. While this may require an extended discussion on the problem of agency in moral action, I think that it is still something to consider when asking yourself these same questions. Should people paying taxes be considered morally praiseworthy for doing so? We are blinded by the coercive nature of the state once again. Where a man may have been charitable (and therefore morally praiseworthy) with his holdings by donating them, we cannot now know if he is giving taxes because he hopes to help others or if it is because he is forced by threat of incarceration to do so.

It is entirely possible to believe that we have a moral obligation to charity (In fact, I believe we do) while still maintaining the justice of holdings from voluntary homesteaders and contractors. To be a libertarian does not and should not reject the value of charity.

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