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Nozick’s Radical Logic of Reparations

The provision of reparations for slavery has been a longstanding demand of Black Lives Matter and other leftist organizations. In 2016, the United Nations Working Group of Experts on People of African Descent demanded that the United States finally confront its legacy of “racial terrorism” by providing reparations in the form of apologies, better education, and debt cancellations to descendants of slaves.

Even before mass protests rocked American cities in the wake of George Floyd’s tragic death on May 25, interest in reparations had migrated into the political mainstream. During the Democratic primaries in 2019, several candidates agreed to study or discuss the issue. Senator Cory Booker went so far as to support reparations outright, arguing that it was far from obvious that America was “truly free from the historically rooted and hideous legacy of slavery.” The mere consideration of this policy by top Democrats is a sea change in the history of their party. Not so long ago, Bernie Sanders, Hillary Clinton, and former President Barack Obama preferred to focus on providing better education, health care, and other services for the poorest African-Americans rather than embracing reparations.

On the Republican side, Senate Majority Leader Mitch McConnell voiced the traditional critique of reparations before a House hearing on the subject last year by declaring that they were neither necessary nor practical. Reparations “for something that happened 150 years ago, for whom none of us currently living are responsible” were not a good idea. Moreover, “We tried to deal with our original sin of slavery by fighting a Civil War, by passing landmark civil rights legislation, [and we] elected an African American president,” McConnell said. He added: “I don’t think we should be trying to figure out how to compensate for it. First of all, it would be hard to figure out whom to compensate.” Nevertheless, some corporations that are under pressure to provide reparations have already taken some tentative steps.

The Lockean Proviso 

Given the current interest in reparations, it is important to understand the implications of this proposed policy. How far back in history should a nation go in addressing past injustices?

The libertarian philosopher Robert Nozick (1938-2002) attempted to answer this question in his award-winning book Anarchy, State, and Utopia (1974). One of the most controversial ideas contained in this work is Nozick’s defense of the “Lockean proviso,” which requires the “rectification” of outcomes that result from the unjust appropriation of property. Reparations redressing the effects of slavery, however, may just be the tip of the iceberg should we accept this robust conception of the Lockean proviso. Going back into the past in search of wrongs could lead to the discovery of innumerable injustices that conceivably demand contemporary rectification by their perpetrators’ descendants. It could also serve as the rationale for radically altering (and even abolishing) the global capitalist system altogether. For this reason, the proviso has been far more popular on the Left than the Right.

Nozick usually comes across as a rather traditional libertarian, arguing that “principles of justice” regarding the acquisition and transfer of property exclude theft, fraud, and enslavement. A just appropriation of property must be the result of voluntary and informed consent that both parties to the exchange of property freely exercise. However, he also emphasizes the importance of understanding the “original” or “historical” manner in which the ownership of property came about. If “past injustices” (including theft, fraud, and enslavement) enabled this ownership, then “rectification” of these crimes must take place. Nozick consistently argues that parties that have been made “worse off” by actions like these deserve compensation.

The historic injustices that wealthy capitalist nations of the global North have inflicted on the poorer nations of the South, in the form of exploitation of labor and theft of resources, may justify application of the Lockean proviso on a grand scale.

Nozick radically departs from his philosophical inspiration, John Locke, on the subject of rectification. Locke had a very straightforward understanding of what this meant. In his Second Treatise on Government, Locke wrote that the act of “reparation…belongs only to the injured party.” Moreover, this “damnified Person has this Power of appropriating to himself, the Goods or Service of the Offender, by Right of Self-Preservation.” In short, if one person steals the property of another, then the “injured party” has every right to take it back. Yet Locke stipulated that this act of “reparation” applies only to the “injured party” who clearly participates in an exchange of goods or services. He took no interest in acquisitions and transfers of property that affect third parties. Instead, Locke insisted that someone who “hath mixed his Labour” with the land justifiably acquires it as his property. In the process, he does not make worse off those who failed to enter an exchange that would motivate them to mix their own labor with the land. As long as land is in abundance, no third party should complain that some individuals have worked harder than others to possess their property by the sweat of their brow. For this reason, Locke indirectly rationalized the expropriation of the lands of the “Americans” (natives) at the hands of the Europeans in his age.

Locke’s idea of reparation, then, applies only to those who are either a first or second party to an exchange of property, not a third party. This implication would be too restrictive, according to Nozick, who rejects Locke’s idea that mixing one’s labor with the land somehow gives one greater entitlement to it. Nozick also finds it necessary to supplement Locke’s defense of property rights by pointing to the problem of injustices that go far back in time. Specifically, he contends that those who are made “worse off” as a result of an unjust acquisition of property are entitled to rectification, although he is vague on details. Nozick writes:

If past injustice has shaped present holdings in various ways, some identifiable and some not, what now, if anything, ought to be done to rectify these injustices? What obligations do the performers of injustice have toward those whose position is worse than it would have been had the injustice not been done? . . . How, if at all, do things change if the beneficiaries and those made worse off are not the direct parties in the act of injustice, but, for example, their descendants? How far back must one go in wiping clean the historical slate of injustices? . . . I do not know of a thorough or theoretically sophisticated treatment of such issues.

This version of the Lockean proviso is far more radical than what Locke intended because it applies to all injured parties directly or indirectly affected by an acquisition or transfer of property in history.

The Libertarian Argument for Abolishing Capitalism?

The fact that Nozick leaves open the possibility that a “more extensive state” might be temporarily needed to rectify past injustices probably explains why prominent libertarians (including Ludwig von Mises) rejected his version of the Lockean proviso. However, the proviso has been popular on the Left, particularly with regard to attempts to justify reparations for slavery. The philosopher Bernard R. Boxill has argued that the failure of the US government to compensate the emancipated slaves of the postbellum era clearly justifies the payment of financial reparations to their descendants for this grave injustice, which adversely affects them to this day. Nozick’s reluctance to put a clear timeline on how far back rectification should go opens the door for some to urge ambitious attempts to redress countless past injustices.

Although Nozick never intended the proviso to serve as a justification to eradicate capitalism, he may have opened this door as well. The analytical Marxian philosopher Kai Nielsen (1926-) has argued that “even Nozickian notions of justice in rectification would require redistribution between North and South.” That is to say, the historic injustices that the wealthy capitalist nations of the North have inflicted on the poorer nations of the South (or developing world), in the form of exploitation of labor as well as theft of resources, justifies the application of the Lockean proviso on a grand scale. Consistent with the proviso, the capitalist North should not only transfer a considerable portion of its wealth to the South for the purpose of righting past wrongs. The North should also abolish capitalism, which made the poorest people of the South worse off than they were before capitalism.

One of Nielsen’s claims illustrates how opponents of capitalism can use the Lockean proviso to their advantage. Nielsen correctly points out that the transformation of a pre-capitalist economy into a capitalist one can inflict harm on millions of people who must make the painful transition from an agrarian way of life to an urbanized and industrial one. The capitalist North has repeatedly pressured the South to undergo this transformation. Nielsen writes:

A previously self-sufficient agriculture in Third World countries radically declined and ceased to be self-sufficient. Much of the rural population, in a state of impoverishment, as a huge reserve industrial army, was in effect driven into the cities and in tandem with that, as rural production declined, rural life became ever more impoverished.

One need not be a Marxist to know that this process characterized the rise of capitalism in the North as well, particularly in the 18th and 19th centuries. It is also a process that is both common and painful to developing economies. The fact that people who enjoyed “self-sufficient agriculture” did not consent to this process qualifies them as third parties affected by the decisions of their government. It is also a process that can take a very long time to complete, even though it may eventually raise the standard of living for workers inside the cities. Finally, it is likely that the suffering incurred by the poorest people involved in this change will affect future generations as well.

Following Nielsen’s logic, the application of Nozickian rectification would require, at the very least, massive compensation for the descendants of those who suffered the loss of their cherished rural way of life. It would also require, at the very most, the abolition or restructuring of a system that makes rural folks worse off than they were before the onset of industrialization.

Although no one in the political mainstream is demanding the end of the market economy at the moment, there is little reason to think that the debate over reparations will not lead to an eventual debate over capitalism’s historic effects along with a host of other wrongs that we now believe we can right.

Reader Discussion

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on August 10, 2020 at 09:27:45 am

The reparations discussion on L&L's blog has been drawn out now to three essays in the past two weeks.
One might say, "Enough," but this essay adds the value of Locke and Nielsen to the discussion and the debit of Nozick.

In the 21st century, after decades of special (and ongoing) public and private legal recompense and tens of trillions of government reparations dollars, the call for additional reparations has no moral, legal or economic merit when applied to the African American and Native American subcultures, which, having by now received vast compensation for injuries inflicted on their ancestors, seek yet more cash and special legal privilege today. It is but sheer greed and a power grab! Those not grabbing for cash as self-enrichment pursue reparations for revolutionary purposes. They are the race hustlers, the crypto-Marxists and the demagogues of the modern Revolutionary Democrat Party. Academic blather like Nozick's just gives another weapon to the rent-seeking robbers, more fuel for the cultural arsonists and intellectual cover for the political demagogues.

Yet, these thieves, hustlers and demagogues never mention reparations for the millions of Appalachian whites whose ancestors were robbed, their land ravaged and their culture devastated so the nation could prosper with abundant energy, steel and timber produced by cheap labor. If any subculture can be said to be a direct victim today for the sins of the past it is the Appalachian population. Appalachians and no other group truly deserve reparations and have received nothing. But then the Appalachian subculture was historically and is today predominantly Caucasian, a disfavored race per the identity politics which drive the elites who are hustling the reparations scam.

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paladin
on August 10, 2020 at 20:08:12 pm

"(Ezekiel 18:20)--"The person who sins will die. The son will not bear the punishment for the father’s iniquity, nor will the father bear the punishment for the son’s iniquity; the righteousness of the righteous will be upon himself, and the wickedness of the wicked will be upon himself.""

How "biblical" do we need to be?

The whole concept of "white privilege" is designed / intended to overcome this ancient proscription.

I am feeling kind of Biblical right now!

How about we unleash the modern version of the Ten Plagues upon our Egyptian cultural overlords?

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Guttenburgs Press and Brewery
on August 10, 2020 at 20:21:50 pm

The thesis of this essay appears to be the rather subjunctive statement:

Reparations redressing the effects of slavery, however, may just be the tip of the iceberg should we accept this robust conception of the Lockean proviso.

Deferring to the right of Professor Havers to choose the topic, form and substance of his argument, I am left with an impression that this is a somewhat gossipy presentation of the underlying ideas; "hey, did you hear what Nozick said about reparations, and what he might have meant?" This impression is created by the use of multiple terms presented in quotation marks without any guidance as to how they might have been intended in their original sources: "“principles of justice”," "“original”," "“historical”," "“past injustices”," "“rectification”," and "“worse off”." The impression is that Nozick was using these as terms of art that may or may not conform to their commonly understood meanings. Furthermore, there are additional terms such as "just" and "past injustices" that are capable of interpretation, but with no guidance as to how Nozick may have intended them. Professor Havers is, of course, well within his rights to assert that it is not his job to educate the reader on Nozick's approach (although that appears to be the purpose of the essay), and if anyone wants to know Nozick's definition of justice, or philosophy of property, they can read it for themselves. This however makes understanding of the essayist's point contingent, and when the reaser gets to the end of the essay he may be tempted to ask "so what?"

The relationship between Nozick's idea of the "Lockean proviso," as described here, and the end of capitalism is not clearly developed. The claim that agrarian societies desired to remain that way as other societies advanced (would they have, for example, preferred to maintain their historical life expectancies, and infant mortality rates) is unsupported. The idea that they were "harmed" or made worse off because of the development of mathematics, chemistry, medicine, philosophy, etc. by Northern civilization, is likewise amenable to a great deal of debate, and skepticism. The conclusion of the essay, which may be summarized in the statement "there is little reason to think that the debate over reparations will not lead to an eventual debate over capitalism’s historic effects," may be interesting, it may even be true, but it does not contribute much to understanding the issues. Telling people there may be a debate about something is likely one of the least useful roles of philosophy.

I would add that there have been a number of concepts developed in the law, over significant time periods, such as "good faith purchaser for value," res judicata, finality of judgments, statute of limitations, and so on. The common principle that makes each of these useful is that functioning societies require a mechanism for determining finality with regard to disputes. Finality is an essential characteristic of dispute resolution and takes precedence over other concerns, such as academic notions of justice. This is because finality is essential to predictability, predictability is essential to planning, and planning is essential to human flourishing. It takes a great deal of planning to have the luxury of debating justice.

I understand that this may come across as unduly critical, and also that Professor Havers is likely much more qualified to have his opinions taken seriously than I am to have mine. But as Paladin notes, there have been several references to reparations recently, and at some point the proles, like me, will start demanding detailed arguments for and against the idea.

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z9z99
on August 11, 2020 at 09:37:27 am

"...at some point the proles, like me, will start demanding detailed arguments for and against the idea."

Demand away, poor prole, you will not find what you seek. The three arguments for black reparations are neither detailed nor beyond the reasons of race-hustling, money-grubbing and power-grabbing.

The argument against is straightforward and briefly stated.
Race-hustling, money-grubbing and power-grabbing ought be resisted.

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paladin
on August 11, 2020 at 13:55:55 pm

Yours is a very perceptive comment, and I say this as someone who has authored a book on Nozick's political philosophy: *Nozick's Libertarian Project: An Elaboration and Defense* (Continuum, 2011). Prof. Havers's claim that, "[Nozick] contends that those who are made 'worse off' as a result of an unjust acquisition of property are entitled to rectification'" is just false, and the text that he quotes simply does not support this assertion. Nozick merely acknowledges as he should that one cannot adopt his entitlement theory of justice without considering the possibility that rectification of past injustices is required, and implies that any such policy would exist for "the short run." (ASU, 231). The need for rectification would rest on the historical background pertaining to that particular society, and the development of an acceptable theory of rectification (p.152).

Critically, what Havers apparently fails to notice is that any proposed reparations sit in severe tension with Nozick's bedrock moral principles, specifically the supreme disvalue (expressed as "side constraints") he attaches to the coercion of innocent persons. Any program of this sort would inevitably dispossess the innocent, i.e. recent generations, immigrants, etc.), while benefiting those with no plausible claim of injury. The key assumption underlying Nozick's version of Locke's proviso is that as a general matter free markets benefit any society that adopts them, making the vast majority of people better off than under competing systems (if Marxism or socialism really are superior, his theory falls). For the small number of those made worse off, should voluntary methods fail, a relatively modest social safety net for the blameless poor would suffice, rather than a massive social engineering project.

I believe you are also quite right to question the historical narrative that the "North" has somehow impoverished the "South," once we account for the benefits of trade, investment, migration, technology, etc. And, I believe we are entitled to guffaw at the purported loss of the "cherished rural way of life," which was short and miserable (hello Irish potato famine), and might explain the near universal, multi-generational migration to urban centers.

There's much more to say, but I'll end with this. Of course Nozick would demand the return of identifiable stolen property or that obtained by fraud or coercion, but beyond this I believe he would only endorse relatively minimal rectification, where the nexus between those harmed by state policy and the beneficiaries is clear. Something like that proposed by Tyler Cowen, in "How Far Back Should We Go? Why Restitution Should Be Small."

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Mark Friedman
on August 11, 2020 at 09:02:06 am

The Ten Plaques. Outstanding!
And what a fine name for a new prophet, Guttenberg Press and Brewery.

I assume that Schumer and Pelosi are Pharaoh and Democrats the Egyptians. Are they to suffer all ten? I especially look forward to boils on AOC.

Ah, to deny revenge masked in law and to seek in its stead justice wrapped in the miraculous wrath of God.
To reparate is human, to judge Divine.

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paladin
on August 11, 2020 at 09:41:36 am

"Black Lives Matter holds rally in Chicago to support those arrested after looting, unrest
“That is reparations,” a BLM organizer said. “Anything they wanted to take, they can take it because these businesses have insurance"

From today's news.
Volumes, indeed!

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Guttenburgs Press and Brewery
on August 11, 2020 at 11:33:43 am

Nozick discussed justice (1) in appropriation, (2) in transfer, and (3) in rectification. Three topics, not one. Admittedly, the distinctions are under-developed. Property theory was not his life's work.

First thought: Regarding rectificatory justice, as per the present author's quotations, Nozick's discussion consisted of many questions, and few answers. Nozick did indeed leave open the possibility that following the logic of his theory might lead to revolutionary conclusions, but he did so without endorsing any such conclusions.

Second thought: The Lockean Proviso, never actually defined in this article, is off topic.

In Nozick, the proviso that "enough and as good be left for others" (Nozick, p. 175) is mentioned as a limitation on our right to be a first appropriator of previously unowned land. Nozick says Locke's Proviso is a way of ensuring that no one's situation is worsened by an appropriation.

In Locke's own theory, appropriation is legitimate to the extent that it enables an appropriator to turn land to productive use, injecting previously unclaimed land into mutually advantageous human commerce. Can anyone complain about that? No, says Locke, at least not so long as an appropriation leaves "enough and as good for others" (Chapter 5 of Locke's 2nd Treatise, at section 27ff). Locke does not say it takes as much as that to justify appropriation. Rather, he says it would not take more than that. A fine point, perhaps, but it isn't the same thing. In effect, what Locke said to appropriators was, if the land really is unclaimed, and there really is no previous owner whose permission is needed, then go for it. He was saying, so long as you don't do damage, you won't get sued. He wasn't saying that every instance of damage is actionable.

Locke's Proviso is a principle that speaks to the question of what makes for a good appropriation.
Other principles speak to the question of what makes for a good transfer.
Still other principles speak to the question of how to make a good case for rectification.

Principles of rectification will include common law ideas like: plaintiff must serve proper and timely notice of, and bear the burden of providing evidence of, a specific defendant acting in a way that violates the plaintiff's right, thereby doing specifiable damage.

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Dave
on August 11, 2020 at 12:26:48 pm

I also thought the introduction of “The Lockean Proviso” was off topic.

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Douglas B. Rasmussen
on August 11, 2020 at 15:52:16 pm

Professor Havers refers to "...an eventual debate over capitalism’s historic effects along with a host of other wrongs that we now believe we can right." I suggest that one big thing wrong as a matter of strategy in the war for the survival of American civilization is the wholly unwarranted intellectual and moral respect which the Right accords the Left's incessant agitation over "capitalism's historic effects," the Left's endless "host of other wrongs" and the Left's assertion as a matter of moral and legal right that these so-called "wrongs" were caused by and are the moral and legal responsibility of a disfavored segment of society which "ought" to be coerced by government to fix or pay damages for their moral and legal wrongdoing. This is utter BS! The moral and legal philosophizing offered up herein as response to what is sheer greed, corruption and power politics epitomizes my point. It is all highly dangerous, academic nonsense, tantamount to debating with Lenin, Hitler, Stalin or Mao over the dignity of man.

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paladin
on August 12, 2020 at 18:38:10 pm

NO TRUER, NOR MORE TIMELY SENTIMENTS HAVE EVER BEEN EXPRESSED here than the words below of our valiant Knight, Paladin:

"I suggest that one big thing wrong as a matter of strategy in the war for the survival of American civilization is the wholly unwarranted intellectual and moral respect which the Right accords the Left's incessant agitation over "capitalism's historic effects," the Left's endless "host of other wrongs" and the Left's assertion as a matter of moral and legal right that these so-called "wrongs" were caused by and are the moral and legal responsibility of a disfavored segment of society which "ought" to be coerced by government to fix or pay damages for their moral and legal wrongdoing. This is utter BS!"

I would only add that the mere mention / repetition by conservative commentators of such demonstrably false narratives (FOLLIES, perhaps) as "trannyism" reparations, white privilege (which one suspects is a) a workaround against "corruption of blood / sins of the fathers" and b) a predictable response from the left to cover for a *learned* sense of black self inferiority instilled in them by incessant Leftist proselytizing over their historical status as slaves) actually adds to the public perception of the validity of these falsehoods.
The proper response to these narrative falsehoods is to simply and firmly but gently urge the speaker to "SHUT UP" and inform the speaker that "I do not engage in fantasy as I have put away the reasoning of my childhood."

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gabe
on August 12, 2020 at 19:11:17 pm

Well, I see someone agrees with me on self doubt. See Amy Wax's essay "Peropetual Reign of Racial Preferences in Book Reviews / LLB.

"The high hope was that affirmative action would bring blacks as a group up to speed almost immediately, or at least within a generation or two, allowing them to compete on the same terms as other groups. That hasn’t happened. Instead, these programs have generated frustration, resentment, anger, and SELF-DOUBT [caps mine]."

And when affirmative action in education is supplemented by a never ending "liturgical" jeremiad against the sins of whites and a corresponding and contrasting narrative of the unrealized potential of minorities, how can we not expect that there will arise in the subjects simultaneous feelings of both self doubt, unfounded hope and resentment when that hope is unrealized. Consequently, new and far more extensive demands must be made and fulfilled if that self doubt is to be eliminated. And after all, when an enemy - white privilege - is readily identifiable, it becomes easy to unite and focus one's energies toward reparations and restitution instead of oneself.

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gabe
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