Nozick’s Argument for the Legitimacy of the Welfare State

  • Michael Davis


Nozick has, of course, never defended the welfare state, Quite the opposite. Still, the title of this paper is not misleading. The argument developed here, though not one Nozick has made or is likely to endorse, is implicit in certain principles that are relatively central to the arguments he does make. It is his much as an illegitimate child is its father’s, however unintended and disowned.


Civil Society Welfare State Free Rider Protective Association Public Provision 
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  1. 1.
    John Locke, Second Treatise of Civil Government, para. 50, Ethics 97 (April 1987): 576–94.CrossRefGoogle Scholar
  2. 4.
    My conclusion is not dependent on this ordering (though it probably is dependent on the absence of other principles with equal or higher priority). I give the principle of liberty priority over the principle of wealth maximization because that seems to correspond to what most libertarians believe. But I must admit that few libertarians are this explicit about their foundational principles. Nozick certainly is not. For one who is, see Randy Barnett, ‘Pursuing Justice in a Free Society. Part 1. Power vs. Liberty’, Criminal Justice Ethics 4 (1985): 50–72.CrossRefGoogle Scholar
  3. For example, Barnett defends the ‘liberal approach’ to property (in part) by claiming that it ‘maximizes the individual freedom of choice, action, and resource use’ (p. 60). There are, of course, complexities in the notion of liberty or individual freedom, but I shall ignore them in what follows. For a discussion of these, see my ‘Budget of Tolerance’, Ethics 89 (1979): 165–78.CrossRefGoogle Scholar
  4. 5.
    At this point, one referee of this journal noted (quite correctly) that many doctoral dissertations have no economic value whatever. Combining principle 1b with 2a, would, he observed, mean that the author of such a work would have no right in the state of nature to prevent someone from making copies of it and distributing them as he pleased (if he could get a first copy without burglary, invasion of privacy, or the like). Noting as well that this result is inconsistent with ‘our ordinary understanding’ of property, the referee unaccountably concluded that there must be something wrong with my analysis. I say ‘unaccountaby’ because the result seems to me, if anything, to be evidence for my analysis. Copyright is, after all, of recent invention. See, e.g., Lyman Ray Patterson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt University Press, 1968), esp. pp. 4–5.Google Scholar
  5. For most of recorded history, i.e., until the invention of the printing press, the law governing ownership of worthless copies was much as my analysis suggests. Even today copyright exists only by statute, with a feature not characteristic of property rights generally. Copyrights expire after a certain number of years. Much the same is true for ownership of ‘ideas’ generally. Indeed, even more so. I cannot get a patent on a law of nature I discover, mathematical formula I dream up, the plan for a book, or other mere ideas. I can get a patent only if I use that idea to produce a useful object (machine, chemical compound, or the like). And then what I will be granted control over will be duplications of that object, not of use of my idea as such. Locke might well be surprised at our intuitions of property here. See, e.g., U.S. Patent Office, Outline of History of the United States Patent Office (Washington, D.C.: Patent Office, 1936), esp. 19–34. So, before invoking intuition against my analysis, it is worth asking what reason one has to believe that the intuitions in question are of the law of nature rather than of civil law.Google Scholar
  6. 8.
    See, e.g., William L. Prosser, Law of Torts (St. Paul, Minn.: West Publishing Co., 1971), pp. 592–3: ‘A threat of future injury may be a present… interference with enjoyment [of one’s property], as in the case of stored explosives, inflammable buildings or materials, or a vicious dog: and even though no use is being made of the plaintiff’s land at the time, the depreciation in the use value of the property because of such conditions or activities is sufficient present damage upon which an action may be based’.Google Scholar
  7. 9.
    See, e.g., Dennis Parkinson, Value Added Tax in the EEC (London: Graham & Trotman, 1981). A value added tax seems to require a relatively free market to work. But, since libertarians generally suppose the state of nature to be such a market, I see no problem in adducing this tax as evidence of the coherence of some value-added schemes.Google Scholar
  8. 10.
    See, e.g., William Herbert Page and Paul Jones, A Treatise on the Law of Taxation by Local and Special Assessment (Cincinnati: W. H. Anderson Co., 1909).Google Scholar
  9. 11.
    American Law Institute, The Restatement of Restitution (St. Paul, Minn.: American Law Institute, 1937, p. 12.Google Scholar
  10. 12.
    See, e.g., Robert Goff and Gareth Jones, The Law of Restitution (London: Sweet & Maxwell, 1978), p. 16: ‘There is much to be said for the view that a defendant should make restitution if he has been incontrovertibly benefited by the receipt of services. In our view he has been incontrovertibly benefited if he has made thereby an immediate and realisable financial gain or has been saved an expense which he otherwise would have incurred. It is to be hoped that the English courts will adopt a comparable principle; and there is good reason to believe that they may yet do so’.Google Scholar
  11. 13.
    Robert Nozick, Anarchy, State, and Utopia (Newark, N.J.: Basic Books, 1974), p. 175.Google Scholar
  12. 17.
    For a post-Nozickean discussion of what might make a principle of fairness plausible, see Richard J. Arneson, ‘The Principle of Fairness and Free-Rider Problems’, Ethics 92 (1982): 616–33.CrossRefGoogle Scholar
  13. 21.
    See, e.g., F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), which I read as defending libertarian economic policies on what we would now call ‘Rawlsian porinciples’. Hayek claims that , as a matter of fact, the inequalities libertarian policies produce are a necessary part of a system which makes everyone, even the worst off, better off than under any available alternative.Google Scholar

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© Palgrave Macmillan, a division of Macmillan Publishers Limited 1991

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  • Michael Davis

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