Historical justice and the debate between Robert Nozick and John Rawls

Both for Rawls and for Nozick this possibility is intolerable because it does not take into account the rights of individuals, their 'separateness' as Kant argues, and because, above all, it treats people as means and not as ends, which contravenes the very Kantian approach that both philosophers embrace.

Otherwise, the positions of the two could not be further apart. For Rawls, the problem of distributive justice stems from the essentially cooperative nature of life in common.

In a complex society, thanks to the division of labour, it is possible to achieve results that we would not be able to achieve individually. That is, a surplus is generated that, so to speak, is neither mine nor yours, but ours. This fact generates the problem of how to distribute this surplus among all those who have contributed to producing it.

Nozick takes a completely different perspective. It is individuals who produce and transfer wealth. The problem of justice is configured in this way with respect to those forms of property acquisition and transfer that can be considered legitimate.

He criticises Rawls because he does not make clear the difference between goods generated through cooperation and those resulting from individual action and does not place the right weight on the latter. Moreover, even in the case of goods generated through a process of cooperation, according to Nozick, it is always possible to measure the contribution of each individual and one should therefore consider this parameter in order to proceed to a fair distribution of the surplus.

What, then, should be the role of a theory of justice in this context? "People cooperate in making goods," writes the New York philosopher, "but they work separately; each person is a miniature enterprise. Each person's products are easily identifiable, and exchanges are conducted in open markets with competitively imposed prices, constraints on information given, and so on. In such a system of social cooperation, what is the task of a theory of justice? It could be said that whatever possessions result will depend on the reasons for exchange or the prices at which exchanges take place, and therefore that the task of a theory of justice is to establish criteria for fair prices" (Anarchy, State and Utopia, Il Saggiatore, 1981, p. 198).

Moreover, Nozick argues that the very reason why Rawls is against perfect egalitarianism, namely because different earnings are needed to incentivise the most productive and innovative members of society, itself implies the possibility of different individuals making different contributions and that these are identifiable.

A possibility, however, which Rawls strangely neglects. A second area in which Nozick's criticism of Rawls moves is in relation to his contractualist approach. In A Theory of Justice, in fact, he asks what characteristics the principles of justice should have in order to generate an agreement signed by rational and self-interested individuals.

Nozick totally rejects this approach. He does not pose the problem of the configuration of a just society because his vision of justice is 'historical'. In this approach, any social configuration and any allocation of goods that will have evolved from a just configuration through legitimate rules and procedures must be considered just.

Nozick's criticism of Rawlsian contractualism is related to its main assumption: that the contract serves to define the principles of wealth distribution. But this wealth, Nozick says, does not come from heaven. Someone has already helped to create it, owns it, and this property is inviolable if it has been acquired legitimately. No agreement can be imagined that would challenge this state of affairs; it would involve an unacceptable violation of original individual rights.

Nozick goes on to write: 'No historical principle could in the first instance be the subject of agreement for the participants in Rawls' original position. In fact, people who meet behind a veil of ignorance to decide who gets what, without knowing anything about any special qualifications people may have, will regard as manna from heaven whatever there is to hand out' (p. 209).

Let us imagine, the philosopher tells us again, a class of students who took an exam and were graded by their teacher with different marks because their performances were different. Let us imagine these students in Rawls' original position, behind the veil of ignorance. They do not know that they got a certain grade, they only know the sum total of these grades. On what distributive principle would they agree? Most likely on an egalitarian principle.

But could we call the grade distribution that would be generated according to this principle really fair? And what if students were shown the true grade distribution determined by their effort, performance, luck, and a host of other historically determined factors? It would probably be very difficult to convince students with below-average grades to accept those grades instead of a distribution with an equal average grade for all.

But would this be fair? Instead of focusing on the distribution of grades, as Rawlsian and every other 'end-state' theory as Nozick calls them, it would be more appropriate to use the historical criterion to determine each student's grade.

What did you do? How much did you study? How hard did you work? These should be the criteria to be used to assess whether a grade distribution is fair or not. These criteria are what constitute the 'valid title' that entitles an individual to a certain 'possession', a certain grade, in this case. Yet, Nozick continues, 'If the historical principles of valid title are fundamental, then Rawls's construction will, at best, provide approximations to them; it will produce the wrong kind of reasons in support of them, and the results that follow will sometimes conflict with the proper principles.

The whole procedure of people choosing principles in Rawls' original position presupposes that no valid title-centred conception of historical justice is correct'. From Rawlsian contractualism, in other words, one cannot expect agreement on principles of historical justice capable of considering wealth and property in their real form as entities produced, owned and exchanged by and between real persons.

"Rawls's difference principle - as John Meadowcroft writes - might very well be an appropriate criterion for distributing manna from heaven (if the distribution of that manna somehow affected the amount of manna produced in such a way that incentives had to be taken into account), but Nozick clearly shows that if we considered the creation of income and wealth as it occurs in the real world things would become considerably more complicated and rights would almost certainly emerge that should not be ignored by anyone truly interested in the pursuit of justice" ("Nozick's critique of Rawls: Distribution, Entitlement, and the Assumptive World of A Theory of Justice" inThe Cambridge Companion to Nozick's Anarchy, State, and Utopia, Eds. R. M. Bader and J. Meadowcroft, Cambridge University Press, 2011).

Nozick's critique of Rawls goes on to focus on other important elements of the theory such as natural endowments, merit and the arbitrariness of certain distributions. All of which we will dwell on at greater length in the next Mind the Economy.