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LIBERTARIAN PAPERS VOL. 1, ART. NO. 1 (2009)
1
PRESENT PAYMENTS, PAST WRONGS: CORRECTING LOOSE
TALK ABOUT NOZICK AND RECTIFICATION
JAN NARVESON*
The Problem Stated
ACCORDING TO NOZICK (and Locke and innumerable others), what
has come to be termed “distributive justice” is a matter of goods going to
those who made or found them, or to those who get them from others by
agreement, e.g. by buying or selling them. No other fundamental ways of
arriving at ownership of anything are morally legitimate—since, by definition,
the only other ways there are would involve compelling some to give goods
to others, contrary to the general libertarian principle that Nozick (and many
others, including the present writer) suppose to be the most fundamental
general principle of morals. But of course things sometimes go wrong, and
people get things by theft, assassination, fraud, and so forth. When this
happens, what should be done about it? Nozick calls upon a third category,
rectification. The simplest way of putting this idea is that if A unjustly acquires
x from B, then A may (if necessary) be compelled to restore x to B. The idea
can be made more precise: to the extent that A has illegitimately worsened the
situation of B, rectification is accomplished if A brings it about that B is no
worse off, given the actions done with a view to rectification, than B would have
been had the injustice not occurred in the first place. This last is a tall order,
and not easily accomplished in a wide variety of cases. Indeed, in
conspicuously important cases, it is, in the most direct way, impossible, for in
those cases, B is dead and nothing whatever can be done to make B in
*University of Waterloo. Email: jnarveso@uwaterloo.ca. The present article is an
expanded and revised version a paper presented at the Austrian Scholars Conference,
Ludwig von Mises Institute, Auburn, Alabama, March 21, 2005, under the title “Present
Payments, Past Wrongs: Correcting Impressions from Nozick on Restitution.”
CITE THIS ARTICLE AS: Jan Narveson, “Present Payments, Past Wrongs: Correcting
Loose Talk about Nozick and Rectification,” Libertarian Papers 1, 1 (2009). ONLINE AT:
www.libertarianpapers.org. THIS ARTICLE IS subject to a Creative Commons Attribution
3.0 License (creativecommons.org/licenses).
2 LIBERTARIAN PAPERS 1, 1 (2009)
particular better off than he now is. And in numerous other cases as well,
rectification would no doubt be very difficult.
Nozick famously asks “How far back must one go in wiping clean the
historical slate of injustices?” And, notoriously, he conjectures that perhaps
we would end up with a modest case for something like a “maximin”
principle:
assuming (1) that victims of injustice generally do worse than they
otherwise would, and (2) that those from the least well-off group in the
society have the highest probabilities of being the (descendants of)
victims of the most serious injustice ... then a rough rule of thumb for
rectifying injustices might seem to be the following: organize society so
as to maximize the position of whatever group ends up least well-off in
society.1
This fact, that rectification is often difficult or even impossible, is said
by many writers, and evidently also thought by Nozick himself, to be a major
problem for Nozick’s theory. Colin Farrelly, for example, points to the
paucity of discussion of this matter in Anarchy, State and Utopia as if it were a
major fault: “Given the importance the issue of rectification has on Nozick’s
entitlement theory one is bound to wonder why Nozick does not make this
issue more central ...” And he goes on to assert that
To his original declaration that “taxation is on a moral par with forced
labour” we must add: if and only if no considerations of injustice could apply to
justify such taxation. The minimal state is only justified provided all past
injustices have been rectified. What society can claim to have satisfied
such a requirement?
And he adds,
...Rawls ... imposes on citizens a duty to bring about just institutions and
a duty to oppose injustices. If rectification is to be taken seriously then
similar duties must also be imposed on citizens by Nozick’s entitlement
theory.2
Farrelly is far from alone in voicing similar complaints—evidently most
writers and most philosophical readers find them very telling. Nozick’s
theory, they think, is in deep trouble if it cannot solve this problem. And note
1Robert Nozick, Anarchy, State and Utopia (NY: Basic Books 1974, p. 231.
2Colin Farrelly, An Introduction to Contemporary Political Theory (London: Sage, 2004), 49.
PRESENT PAYMENTS, PAST WRONGS 3
especially how Farrelly, who is far from alone, thinks that taxes are
automatically called for if there has been injustice somewhere—anywhere,
apparently—back up the line.
In the present article, I shall argue that it is entirely mistaken to think
that this is a serious “problem” for Nozick’s theory at all, that it has virtually
none of the implications widely attributed to it (including, apparently, by
Nozick himself)—especially, the inference to taxation as a somehow
appropriate remedy—and that the tendency to think so is due to
unacknowledged reliance on a wholly different theory which, after all, it was a
main point of Nozick’s work, and more generally of the libertarian theory, to
criticize, and to reject.
A Reminder: What Libertarianism Is
Libertarianism asserts that we all have a general right of liberty, and that
this is the basic right so far as the use of compulsion in society is concerned—it
is, as John Stuart Mill puts it, to “govern absolutely the relations of
individuals in society in the way of compulsion and control.” [Essay on Liberty,
Ch. 1] This word ‘absolutely’ is a strong one. If it means what it appears to
mean, then the idea is that, again as seen by Mill, the only reason why anybody
(“society”) would ever be morally justified in interfering with the liberty of
any person would be in order to prevent that person from interfering with
the liberty of—which is to say, doing a harm to—some other person (who
has not, in turn, interfered with the liberty of someone yet else). Whatever
Mill’s other predilections may have been, as a statement of the libertarian
idea, his is deservedly regarded as classic.
It is not the point of this brief essay to try to make the Liberty Principle
either plausible or entirely precise. The purpose here is only to see where
rectification fits in. For this it is enough to give the general idea: namely, that
we may intentionally impose a worsening on any person only in order either to
prevent or to rectify some worsening that that individual in turn is or would
be imposing on some other (innocent) person/s. Specifically, what we may
not do is, for example, to compel this individual to give alms to the poor, to
promote the local Symphony Orchestra—or to traipse off to some remote
part of the world in order to save the citizens of some hapless country from
the machinations of an evil dictator. All of these latter are, to be sure, fine
things to do, and we should (in my view, anyway) encourage people to do
them, such as by lots of credit for doing them (well), and in general to place
4 LIBERTARIAN PAPERS 1, 1 (2009)
such individuals on suitable moral pedestals. That is, as we may put it, the
moral carrot. But libertarianism requires, as the very essence of the matter, a
distinction between the carrot and the stick. Moral requirements, or at least, in
particular, those requirements under the rubric of justice, are those that may
indeed be imposed—promoted by using the stick. But the principle of liberty
says that the stick may be used only for very restricted purposes—namely, just
that one.
One of the purposes for which it may be used is, of course,
rectification. That’s what makes rectification a principle of justice rather than
something else. But in pursuit of which rectification of whose injustices may
the stick in question be wielded, and by whom? To this, libertarianism gives
an almost alarmingly precise answer. First: anybody may use it against the
appropriately guilty parties—provided that the innocent parties violated by
those guilty parties agree to it, at least. Second: nobody may use it against
anybody else. Both parts of this answer are absolutely essential to this theory. To
emphasize one to the neglect of the other would be to distort the theory,
probably beyond recognition.
So: what about rectification of the injustice that person A has done to
person B? Libertarianism says that A owes rectification to B, of course. But
does any body else owe it? No. Does anybody owe it to B to help compel A to
make the rectification in question? No. If we just contemplate the principle
again, it is clear that these negative answers are the correct ones. Other
persons than the guilty parties are, by hypothesis, not guilty; therefore, we may
impose no costs on these other parties. That includes the cost of helping out
with the detection and imposition of rectifications on the guilty parties. It
might be highly advisable for such people to enlist in associations devoted to
correcting wrongs, but it is not a requirement of justice as such.
Since taxation is par excellence the imposing of costs on “other
people”—namely, all of them!—it is therefore perfectly clear that Farrelly’s
quick inference to the legitimacy of taxation in order to justify assorted
instance of past maldistributions by theft or fraud, does not go through. Just
what we may and should do is an important question; but whatever the
answer may be, it is clearly not to do it by resorting to wholesale robbery of
legions of innocents.
PRESENT PAYMENTS, PAST WRONGS 5
Does the The o r y Go Wrong?
That pointed out, let us now return to the “problem” for Nozick’s
theory said to be created by the historical fact that people often do wrong
things to others. When does a theory have a problem? A problem should be
created for a theory if that theory cannot tell us, regarding a certain class of
cases, what to say about it, or if what it does tell us to say about that conflicts,
for example, with what it tells us to say about some other cases (or, of course,
with any of the relevant facts.) Among the things a theory can say about
some cases is, legitimately, Nothing. What should I give my daughter for
Christmas? The theory doesn’t say anything about that, and it shouldn’t. Very
well. What should it say about robbery? That it is wrong. And so on.
Now, the facts cited by critics such as Farrelly as being a problem for
Nozick are these:
(a) that quite often, people do things to others that are, as agreed by his
theory, wrong, and
(b) it might be very difficult or impossible for precise or even
approximation rectification of the wrongs in question to be achieved.
Regarding these facts, one’s reaction should, surely, be: Hey, right!—
What else is new? The world has lots of injustices in it, for sure. That’s life.
But what does this have to do with Nozick’s theory? If that theory told us that
rectification should always be easy, it would of course be thereby refuted. But
why should it be thought to have that particular cross to bear? Or again, if
somehow theories are at fault because they do not, by themselves, make the world
any better, then our critic needs to be gently reminded that we are only
theorists—we’re just trying to figure out what is right and wrong. And while,
no doubt, some rights and wrongs can happen in the classroom or the
study—philosophers have been known to get into duels, for instance—still,
by and large, the rights and wrongs we speak of take place out there in the
world, and our job is to figure out what to say about them; it is not, however, our
job to go out there and do all those things. Since the world is a large place,
containing at present many billions of people, not to mention that in the past
and future there have been and will be billions more, there is just no way that
you or I or anybody can do much to affect the overwhelming majority of
those cases in any way at all. It would be pretty strange if we could ask of a
theory that it get out there and fix all those problems. This can hardly be what
is meant.
6 LIBERTARIAN PAPERS 1, 1 (2009)
But if not, then, what? The libertarian theory does have its problems, to
be sure. Getting precise, or even just decently within the ball park, about just
which actions would give rise to just which entitlements of particular kinds, is
indeed not easy. Determining precisely when a given transaction may be said
to be suitably voluntary to pass muster for libertarian purposes is important
and, again, not always easy. However, the critics we are addressing here—
including Nozick himself, as noted—aren’t addressing such questions. In
fact, they evidently think that we do have a tolerable enough grasp of those
matters to be able to say, at least very often, that some person, A, has violated
the liberty principle in relation to some other, B, whereas he has not violated
it in relation to C, D, E, and so on. We suppose we fairly well know what
belongs to whom by the first and second of the three categories of principles
of distributive justice that Nozick (etc.) identifies—original acquisition and
transfer. Their criticism is supposedly directed at the third, and you can only
do that if you suppose that there are cases, once the first and second have
been cleared, for the third to apply to.
And as to the rectification principle, it is reasonably clear, in
comparison with the first two, what it does and does not say. It tells us that
A’s rectificatory duties consist in restoring the situation ex ante of his victims,
namely to the level, whatever it was, that they enjoyed before his imposition
(with additional payments, probably, to cover the costs of detection and
transaction.) Granted, it is often hard to see quite what will do this—
although, it should be added, it is often far from impossible. Often, for
example, A does something for B and B says, “OK, that’s fine; the matter is
done with.” It is, again, of the essence of the libertarian theory that B is the
absolute and final authority on that matter, and so if he says (sincerely) that it’s
done with, then it is done with, period. And that very often is in fact
achieved. We may also conjecture that more generally, rectification would be
achieved if the erstwhile victim would say, regarding a given proferred
compensatory package, that it would do fine, thank you. This may be
something of an idealization, though let’s again recognize that it is one very
often achieved in practice, and that it’s hardly an idealization in the sense that
we have no idea how to imagine that such a thing would be said; it would only
be an idealization, indeed a utopian idea, if we claimed we knew how to get to
the point, in each and every case, where someone plausibly would say that (if
possible—which in the case where death has occurred, the individual in
question obviously cannot).
PRESENT PAYMENTS, PAST WRONGS 7
This, then, restates the problem: namely, what is the problem? The
general “problem”—that much injustice happens and goes unrectified—is
not a problem for the theory, but a problem for people—as, of course, it is and
should be. When injustices are committed, what is to be done? The
libertarian theory tells us what it is, the doing of which would constitute a
rectification, a redress. It does not tell us how to get somebody or other to do
it—except in one important respect. Namely, it says that we may not do this by
aggressive means. If injustices are to be fixed, they must be fixed by voluntary
means, in respect of all the innocent parties who had nothing to do with the
original injustice. We don’t defend liberty at the expense of liberty, except
where the liberty is that of the miscreant, who causes the problem by himself
acting in violation of the liberty principle.
Of course, then, this calls into question the further inference, so readily
made by the critics, that the libertarian is going to have to get The State after
the crooks. Minimal-state theorists may believe that we ought to have a state
to do so, but that does not follow from the libertarian principle; indeed, it
appears to be inconsistent with it. For of course, the state will use coercion to
do this. It is not at all obvious that “one could actually utilize Nozick’s
argument to justify a number of egalitarian measures, given the injustices that
have taken place in human history.”3 Or rather, it is not obvious that one
could utilize the libertarian principle to get to this conclusion, despite full
acceptance of the criteria for rectification and the thesis that justice would be
done if it were achieved.
Rectification
A major—indeed,surely, the major—sort of case that critics have in
mind when they suppose that the need for rectification will lead to the
legitimation of redistributive taxation is that in which A robs B, and then C
benefits from the proceeds of the robbery. According to one critic, “... if
there has been a single injustice in the history of the state, no matter how far
back, the state will not be able to achieve a just distribution of goods in the
present.”4
3Farrelly, Op. cit., 49.
4Farrelly, quoting from Lawrence Davis (1982), Op. cit., 46.
8 LIBERTARIAN PAPERS 1, 1 (2009)
That is a remarkable conclusion, indeed. How are such conclusions
arrived at? We will need to make some distinctions. To begin with, it is
obvious enough that one is not allowed to be the knowing receiver of stolen
goods. When A sells x to B, B assumes that x does in fact belong to A; if it
does not, then it isn’t A’s to sell, and B cannot buy it. No sale! Better yet, he
might go to the police, or whatever the relevant rectificatory agents might be,
and implicate A. So far, so good. But, of course, this is frequently not what
happens. In fact, in the historically interesting examples, it is absolutely
normal that the persons in question have no idea that some such thing
happened, in the dim and distant past. The money (or whatever) that they pay
for this fraudulently represented piece of goods is real enough, and they do
(did) have a right to it. Suppose, however, that they do discover it, a hundred
years later, for example. Then what? The critics appear to think that
somehow the answer is clear, even obvious. I think it is nothing of the sort. It
may, of course, be sticky, and sometimes imponderable—but it’s not
obvious. Let us consider.
To begin with, let’s consider the case in which A sells x to innocent B,
under the false pretense that x is indeed A’s. Since it’s going to matter, let’s
distinguish three kinds of cases:
(1) What A does for B is a fake service: A doesn’t in fact do for B what
B thought A was doing for B. (This is the broadest category, since all
exchanges are really exchanges of services. However, some services involve
transfers of durable goods and some do not, so for present purposes, we will
distinguish (1) from the next two cases.)5
(2) What A provides B with is a durable but movable good, which in
fact belongs to someone else.
(3) What A purports to provide B with is title to some nonmovable
good—real estate will be our example. B supposes he can just move in and
set up shop, and it turns out that someone else has title....
5That all exchanges are really exchanges of services is something I have explained
elsewhere, though a moment’s reflection should make it obvious, so long as the
exchanges are voluntary. In those cases, your giving me the thing does me a good thing, a
service, and vice versa. Our offers are aimed to inducing the other person to do that good
service, and in successful exchanges, both parties do the desired thing.
PRESENT PAYMENTS, PAST WRONGS 9
In case (1), A needs either to provide B with the service he said B was
going to get—which is probably impossible, in most such cases; or else to
make amends, as by compensating B with a money payment. As noted at the
outset, ideally what A provides in the way of compensation puts B back at his
baseline ex ante, and if it does, justice is done. Suppose he cannot? Justice,
most likely, will not then be done. Our theory tells us, as it should, what
would be just, but it certainly doesn’t assure us that A is going to get it, or
even that he realistically can. But there’s no spillover to society at large—no
case for holding that somehow everybody gets to be taxed a bit in order to fix
things.
In case (2), B has, as he thinks, acquired some usable durable but
movable object. Now suppose that B commences to utilize x in various ways.
B might, for example, eat it; or incorporate it into his domestic establishment;
or it might be an item of capital goods which B puts to use, enabling him to
make further goods and perform further valuable services (e.g., selling the
goods in question to still others.) In all these cases, A has, as it turns out,
done a further injustice. Not only has he unjustly stolen x from some other
person, C, but he has also put B to considerable trouble and perhaps expense.
Now, does B owe something to A? Plainly not (“a kick in the pants,” we
might be tempted to say; but likely B would prefer to have his money back....)
Does he owe something to C? That is what the critics assume. But why? What
we know now is that the original perpetrator, A, certainly owes something
not only to his immediate victim, B, but also to his original defraudee, poor
C. He can’t just come along and repossess x from B, for B bought it, fair and
square—so far as B has any reason to know—from A. A is somehow going
to have to recompense both B and C for their trouble. But if we compel B to
return x directly to C, we have stolen from B the whole price that he paid A for
it—which is plainly unjust. Culpable ignorance sometimes happens, to be
sure; but very often our ignorance of things like this is altogether
nonculpable. We were had. And when we are, it is a bit much to hold that we
are guilty of the crime of theft on top of it. We aren’t.
We can say that B should try to undo the transaction: e.g., he could
return x to guilty A, on condition that he get his money back and that A then
return x to innocent C. However, the cases I have envisaged—which must be
so frequent as to be absolutely typical—are ones in which “getting his money
back” would not actually be sufficient compensation. When we engage in
trade, each party benefits: each party emerges in better condition than she was
before the transaction. The difference, from the point of view of B, between
10 LIBERTARIAN PAPERS 1, 1 (2009)
the value to B of the goods got and the price actually paid to A, is what
justifies B in participating in the exchange; it is what B is entitled to. You
cannot take either away from B without injustice—injustice to B.
Undoubtedly, on many occasions, A will not be able to afford this level
of compensation to both parties. True. But it does not follow that party B has
to do it all by himself. On the contrary: it seems that the agents of B and C
need to get together and see what they can do by way of exacting restitution
from guilty A. We are, then, very far indeed from justifying the State’s
invading the innocent beneficiaries of past crimes in order to somehow
reinstate the original victims—or, as is often argued, their descendants.
What’s done cannot be undone. Compensation that tries to undo the
undoable by compelling still further victims is not justice—it’s merely more
injustice.
This leaves us with what is no doubt the trickiest case of all—case (3),
ownership of permanent bits of the world. It is this kind of case that tempts
people to construe ownership as fundamentally two-termed: a relation between
a person and a thing out there. Those who think this cannot, I think, have
appreciated what they are getting into. So let’s be blunt. The point of rights,
always, as a matter of fundamental analysis, is to ground obligations on others.
For someone to have a right is for that someone to be such that someone
else is required to attend in some way, normally and primarily by keeping off.
In the case of property, that is the only point at issue. Obviously no two-
termed relation does this. Property relates someone to someone else in
respect of the property-holder’s doings with the item owned.
In the case of real estate, there are lots of things one might do with it,
and to own it is to be entitled to do some or all of those things. (We’ll
tentatively assume, all, until further notice.) Of special interest at present are
two among these: (a) occupy it; (b) transfer some or all of one’s rights to it to
someone else, either by sale or gift.
Let’s now address two cases of malfeasance. In one, Mr. A “sells” the
land to Ms. B, who is taken in and who arrives only to discover that the
actual owner is very much still on the scene, deed in hand. B’s been
defrauded. What to do? A owes B the money or whatever, and probably a lot
else. C, the rightful owner, doesn’t owe anyone anything. And B is probably
in for a tough time collecting, though she’s certainly entitled to go ahead and
try.
PRESENT PAYMENTS, PAST WRONGS 11
The kind of case that—uniquely, as we now see—could generate the
Nozickian history, if any, is where A or his henchmen dispatch the original
inhabitant, C, and either moves in, or pretends to be the rightful owner and
sells it to unsuspecting B, this time with a deed in hand that will be
convincing, there being no one on the scene to dispute it. Now we are to
suppose that some who find out about this evil proceeding claim to be,
themselves, among the rightful heirs to the place. If they find this out soon
enough, they can take A to court, clearly enough. May they take B to court,
too? What are B’s rights here? B, as noted, had no idea that A is not the
rightful owner, and paid good money for what she thought was becoming her
property. Moreover, we will now suppose, B has invested time and energy
and probably money in the property as well.
Enthusiasts (and critics) appear to propose that the state gets to divest
B of her holdings and boot her out into the snow. This seems to me clearly
wrong. B thought she got it fair and square, and has what she reasonably
thought was the sort of paper that would establish this. Little did she know.
But why is she to be held entirely responsible for the situation—to the point
where she can be treated as a criminal in the process? I take it to be clear that
she cannot. Caveat Emptor goes only so far. Strict liability in accepting other
people’s statements surely has its limits. We have a problem, yes. But its
solution must involve extracting something from miscreant A, partly in
compensation to B, but partly also to C.
Now take two further subcases. In one, not just a little but a lot of time
has gone by: six generations, say. Do the great-great-great-great grandchildren
of B owe something to the g-g-g-g’s of C? If so, what? Suppose that six
generations of love and labor have gone into the place, enjoyed by the B-
descendants in peace and prosperity. Along comes C6, to dispute B’s
possession. How would they have a case, if they did?
We might think that one may bequeath property to whomever one will,
and they need only be willing to accept it and that’s that. But it’s not. One
cannot unilaterally impose costs on others. The man wanting to bequeath
needs to see to it that someone is willing to do the administration necessary.
The intended beneficiaries need to step forward, on their own, to make the
claim. They cannot expect society to scan the heavens for them and do their
work on their behalfs.
And suppose violence was involved? Are the G6 children of the
original beneficiary to be punished for this? Why? Of course we do not want
12 LIBERTARIAN PAPERS 1, 1 (2009)
people to be able to get away with murder. We don’t want them to, but they
sometimes do, and others not party to the original murders sometimes
benefit unawares. Insofar as they are now better off than they would have
been had the original evils not happened, they may owe someone something,
but who, and how much? The rub is that almost all of the actual value of
what they have now is due to the intervening 6 generations of hard work and
creative imagination. The assumption that the original thing is what is at
issue, regardless, seems to misstate the case. Few of us would be just as happy
with the plot of aboriginal soil on which our current inherited house and
garden stand as with the entire estate as it now is.
And in fact, the original thing is not available. Thus, the original South
Dakota of the Sioux is no more. We cannot return it to them, and they likely
wouldn’t want it if we could. The other subcase is where B proceeds to make
huge changes to the property, greatly augmenting its market value. Sometime
later it turns out that A did not after all have legitimate possession, and
someone else, say a near descendant of C, lays claim. What now? Will it be
said that C is entitled to the property as it now is? Or does what B has done in
the meantime make some difference? Miscreant A’s problem is now worse,
perhaps: he has caused B to go to much expense, under false pretenses. It
seems that A needs to compensate B for this, as well as C.
Our idea about things in the world around us is that they are there for
the using, and therefore for the taking, in the sense that the only objection to
taking something into one’s own use would be that somebody else is already
using it—has “gotten there first.” Things lie about in the wilderness, along
comes somebody who sees a way to make use of them, he proceeds to do so,
and we say: blessings on him.
So what happens with transfer? Suppose A wants to transfer x, which
he’s already got, to person B. Here’s a way he might do this: knowing that B
and only B will be in a certain place, p, and that B would really like to have x,
A abandons x at p and, sure enough! Along comes B and acquires it. A’s
method is risky—someone else might have come first after all, or B might
have changed his habits and not shown up, etc. So, to reduce the likelihood
of these unfortunate eventualities, A writes out a note explaining that B and
only B is the intended recipient of x. Then what? He might pay some people
to deliver it to B. Or he might leave it lying around where people will see it
and hope that they then help B to acquire x, by not taking it themselves and
by perhaps carrying it to B’s house, and so on.
PRESENT PAYMENTS, PAST WRONGS 13
An appreciable question here, then, is this: how much does A have to
do to bring it about that B and only B ends up with x? And if he doesn’t do
enough of those things, then what about the status of x if it ends up in the
hands of somebody C? I do not think that C is at fault. He may think that it’s
tough for A but he should have taken better care.
Now, if we take the case where A is unable to do what is necessary to
effect the intended transfer, and it is later discovered that this was so, how
much trouble do unintended acquirers of x have to do by way of restoring
the world to the way it would have been if all had gone well? Again, it looks
as though the answer is: not necessarily anything, though it would probably be a
good idea to do some.
What is also clear is that the social world generally does not have any
particular claim to x. Those who accidentally acquire it have a better claim to
it than those who are nowhere near, or of course those who do not care.
The point to be made here is that it is not obvious that an original
property right has transferred without alteration to C, bypassing any claim on
B’s part. In general, those who swallow the argument as expounded by
Farrelly assume that goods are eternal, their value doesn’t change, it’s
perfectly clear who gave what to whom, perfectly clear that passage of a lot of
time makes no difference—and, finally, that the rest of us have a heavy duty
to take care of other people’s affairs. Every single one of those assumptions
is characteristically much less than true, and often wholly false. They all
matter. And when they’re cleared up, I think, the case for turning America
over to the socialists is essentially nil.
Discussants on this question, beginning with the unfortunate example
of Nozick, tend to talk as though wealth simply exists all at once and that the
wealth of acquirers of property consists entirely in their coming to own
objects previously owned by others: wealth is “holdings,” as he calls them.
But this is the wrong way to look at it. Wealth is created by people’s efforts,
their expenditure of more or less intelligently directed energy. The items in
which a given case of “wealth” is found are used, more or less well. The better
they are used, the more valuable is the possession -but this value is not due to
possession, simpliciter—it is due, rather, to the ways in which the owner has
employed it, has used it in improving his own life and the lives of loved ones
or valued others, and in the process left it more desirable for others. And
thus it is not true that the original possessor of some of the objects that
served as what we may call the capital basis of the new wealth, is the creator of
14 LIBERTARIAN PAPERS 1, 1 (2009)
that wealth. What he might have done with it if it had not been stolen is a
matter of conjecture, and in some cases we can put to thief A’s account the
robbery of opportunity—the imposition, then, of opportunity costs, on victim C.
But there is no case at all for demanding that B, in particular, work to recreate
those opportunities for C. His life has gone on, innocently so far as he
knows, and things are now a lot different. Taking from him what, so far as he
had any reason to believe, was rightfully his, does him a harm. How great a
harm he is done is proportionate to the increase in value that his use of the
item in question has enabled him to bring about.
The Critics’ Error
What has gone wrong? Why have the critics been so ready to draw
these wholly illegitimate inferences from the rectification principle? The
answer, I suspect, is rooted in the commonest and most pervasive
misunderstanding of the libertarian idea, namely the confusion of negative with
positive rights. Every victim of injustice has a positive claim against the
transgressor. Transgressors violate the duty to refrain from invading and
despoiling, and may be compelled to restrict their activities along those lines.
But his victims have no positive claims against the rest of humanity. It is simply
not the case that justice must be done, in the sense that if S is a just state of
affairs, then everyone owes it to everyone to help bring S about.
What critics seem to be assuming is this. Libertarians lay down a
principle, the principle of liberty. If everyone acted entirely within the bounds
declared by this principle, that would be lovely. Call that, perhaps, the
“libertarian ideal.” Now imperfections develop. And at this point, the critics
apparently assume, we are all called into the act: all must work together to
bring about this ideal situation. If A robs B, then everybody is to get together
to help compensate B so as to bring about the just situation.
But that is a ground-floor error. On the libertarian view, of course,
everyone owes it to everyone to refrain from aggressing, in all the ways this can
be done, against all other persons. But it does not follow, and it is not true,
that everyone has the duty to see to it that justice is restored. The only persons who
have that duty, directly from the libertarian principle, are the transgressors
themselves. So far as everyone else is concerned—with an exception to be
discussed next—they may stand ready to help, they may be positively thirsty
for justice—but they do not have the right to impose any duties of compensation on
anyone else.
PRESENT PAYMENTS, PAST WRONGS 15
The exception just hinted at would be persons engaged and contracted
to try to bring about the restoration in question. These might be, say, hired by
the victim, or his friends, or his neighborhood association, etc. As things
stand, of course, we have public police and the like. But even if they’re
public, they are, after all, engaged, or appointed. Their duties along this line are
duties of office—police and other such officials do not have a “natural duty”
to do what they do (and get paid for it). How could anyone have thought so?
But given that it quite obviously is not so, it is likewise obvious that there is
no such general duty to go out and rectify injustices, incumbent on all and
sundry. We make arrangements to try to bring about that desirable result, and
some of those arrangements will impose duties on certain people to take
appropriate measures. But that is all.
Early in The Libertarian Idea I went to some trouble to distinguish two
very different views of liberty. On one view, what we have is simply a right to
liberty, the right to do as we like. On the other view, however, we would have
the duty to bring it about that everyone is as nearly at liberty as possible. It is easy
enough to see why people adopting the second view should think that we
need something like the State to achieve this noble end. But it does not
follow from the first view, and in fact is on the face of it quite incompatible
with that view. And on the face of it, the first view is the right view. Every
classic statement of the liberty principle is perfectly clear on the point.
Hobbes says that the fundamental principle of morals is to refrain from war—
he does not say that that principle requires us to go out and make war on
those who make war on others. Maybe it would be a good idea to do that,
and we certainly have the right to do it, but it simply does not follow from
our general right of liberty that we have that duty. And if we don’t, then the
case for massive impositions on almost everybody in order to try to rectify
long-ago injustices does not go through. Some injustices can and should be
rectified; many cannot, at costs worth incurring, and we should not think that
everyone’s rights to the various things they have are undermined by that fact.
Is socialism too great a price to pay for “our sins”? Yes, of course. For
they mostly are not our sins, and it is a canard to say that they are. We
innocently inherited or acquired by apparently legitimate means objects or
services which some evil people have stolen from others or concealed from
us the fact that they are not as advertised. The evil people in question
deserved to have rectification imposed on them, by whatever means this may
be possible, short of those that impose costs on still other, putatively
innocent, persons. Moving to socialism would, of course, make those
16 LIBERTARIAN PAPERS 1, 1 (2009)
imposed on everyone, and if that isn’t “going too far,” one would like to know
what could possibly be! Meanwhile the people who created this mess
sometimes get away with it, and often are dead by the time their deeds are
uncovered. At that point, little or nothing in the way of rectification might be
possible. Bygones will have to be allowed to remain bygones.
And when it is possible? Who then pays? Of course the miscreants
themselves must pay, if there is any way to get them to do so. But they are
long gone. So do we turn to their heirs, and the heirs of those who may have
made exchanges with the original miscreants or, much more likely, an
indefinite chain of intermediaries between these purchasers and the original
villains?
If there are victims whose later-generation heirs can be identified (rare),
then the problem will be to determine both (a) what compensation to them is
appropriate in view of what they would have had if the original injustice had
not happened, and (b) what is owed to the other victims, namely the ones who
innocently, as they supposed, acquired and then put to good use the
bequeathable items in question. If the putative recipients of the land or other
resources that would have gone to their forbears can afford to compensate
the innocent intermediate users for their honest efforts in the interim, perhaps
a settlement can be made. Or perhaps not. In the latter cases, we lament—
but we move on.
In the currently-discussed major cases, we have (a) acquisitions, by
force, of land from presumably innocent Indians, and (b) of labor from
certainly innocent black people (in the American case), or miscellaneous
unlucky people (in Europe and the Roman empire, etc.) In the first case, the
situation is complicated by the fact that many of these acquisitions were not
by force but by treaties of varying degrees of legitimacy. And it is complicated
all but impossibly by two further facts: that intervening generations have
loosened all the connections supposed, and that the holders of the acquired
lands have meanwhile improved them beyond imagining, and certainly very
far beyond what would have been the case had the lands continued to be
used as they were, mostly for hunting and gathering, by the original aboriginal
inhabitants. Manhattan is “sold” for $24, and its present value, virtually all of
which is due to the lifelong efforts of many millions of people, past and
present, must be very well into the trillions. Would adequate compensation
for the descendants—if they can be identified—of the original area, consist in
providing them with a similar-sized area somewhere in pristine condition?
PRESENT PAYMENTS, PAST WRONGS 17
And would those recipients be permitted to, for example, turn around and
sell that area for current market prices instead? These questions belong in the
realm of the imponderable. Any plausible answers would not generate
identifiable clear duties on the part of any specific persons nowadays, and
would certainly not generate such duties on the part of the almost everybody
else who are not in the class of clearly involved persons. Even in the case of
the descendants of black slaves in America—some of whom, we learn, have
recently made it into the ranks of billionaires—the degree of conjecture
required to try to determine who now is how much worse off by virtue of the
misappropriation of the labors of their remote ancestors lies well beyond the
borders of the determinable. The case for compensation by almost all of us
to the many millions of mostly middle-class remote descendants of those
slaves is essentially nil. Both slavery and forcible expropriation of land are
evils, which we rightly prohibit today—except, apparently, when it is done by
democratically elected governments. The types of wrong leading to the original
wrongful redistributions have been, at least at the legal and moral levels,
rectified. But rectification to individuals at the temporal remove from the
original problems is beyond the pale. Justice requires, not that we “do our
best” to approximate those impossible-to-determine rectifications, but rather
that we leave what is beyond the pale beyond it. Scope there is for novels,
histories, oratorios, and other well-done literary and artistic deplorings. But
not for the legislator’s blunt cudgels.
Property is not, as some suppose, a fetish: it is among the means of
improving our lives. That shouldn’t be lost in academic shuffles as we
contemplate abstractly the transference or the interrupted, imperfect
transference of property rights.
