Does Nozick justify the <i>welfare</i> state?

Robert Nozick, in Anarchy, State, and Utopia, takes Murray Rothbard's anarcho-capitalist society as a starting point and then attempts to justify a minimalist "night-watchman" state by using Rothbard's own libertarian premises. Many libertarians have objected to Nozick's attempt; Hans-Hermann Hoppe in his introduction to Murray Rothbard's The Ethics of Liberty and Randy Barnett of the Volokh Conspiracy in his article, "Whither Anarchy? Has Robert Nozick Justified the State," are two examples.

John Quiggin, guest blogging on Crooked Timber, goes one step further. Quiggin's argument, as he describes it, is as follows:

[G]iven any plausible starting point, Nozick?s approach leads to the conclusion that the status quo, including taxes, regulations and other government interventions is just.


In essence my claim is that all existing property rights have been received from states which reserved rights of eminent domain and powers to tax when they granted the property rights. So someone who wants to claim that their property should be immune from redistribution is in the same position as a tenant who claims that, by virtue of their past tenure, they should be able to expropriate the landlord.

Now, as I mentioned in the comment thread to that post, I have problems with Lockean theories of initial acquisition. (Although this doesn't mean I accept socialist, social democratic, and welfare statist theories of initial acquisition by society/government; rather, I think all initial acquisition theories are lacking.) And I've heard good criticisms of Nozick's justifications for libertarianism. But I don't find Quiggin's argument at all convincing, because it relies on the faulty assumption that the government legitimately acquired the property in the first place, and then granted property rights to private owners in the same way that a landlord grants limited rights to a tenant.

But why should we make this assumption? Since the entire point of initial acquisition theory is to determine how property can be justly acquired, isn't it extremely important, when claiming that "all existing property rights have been received from states," to establish exactly where those states got those property rights to begin with?

Another important issue relevent to libertarian theories of original acquisition is status of legacy contracts: contracts that stipulate some ongoing rule or regulation even after the property has been passed down through multiple generations. [There may be a more technical term for these kinds of contracts; since I'm not a lawyer (yet), I just made up the term, which seems to fit nicely.]

It seems strange that these contracts should still be binding long after all of the original parties to the contract are dead. In order to create a legitimate (confiscatory) state under libertarian initial acquisition premises, such a state would require unanimous consent among the initial property owners. But the waters become murkier when these owners die and leave the land, binded by government, to their children. Their children never unanimously agreed to this arrangment, and this seems to violate a central premise of libertarianism.

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Even if you accept that the

Even if you accept that the colonists property rights originally came by way of the British crown it hardly follows that upon the eviction of the British the Continental Congress becomes the landlord of the territory.

"It seems strange that these

"It seems strange that these contracts should still be binding long after all of the original parties to the contract are dead. "

No, that can be true for lots of legitimate private businesses.

" In order to create a legitimate (confiscatory) state under libertarian initial acquisition premises, such a state would require unanimous consent among the initial property owners."

Right, that's the problem, although with unanimous consent it would not be confiscation.

What I was trying to get at

What I was trying to get at with my skepticism of legacy contracts (especially those which are used to form governments, or quasi-governments, as in the case of homeowner's associations) is that they cannot be unanimously consented upon, because a large number of the parties that would be binded by these contracts have not even been born yet.

Let's say that I am a racist, anti-Semitic landowner and decide to sell my property on the condition that the buyer (who must be a white anglo-saxon protestant) agrees to never sell or give the property to a non-wasp and must make a similar stipulation to anyone who recieves the property from him.

Accordingly, if we grant the legitimacy of legacy contracts, it would seem that this property can never be sold or given to a non-wasp for the rest of eternity, even hundreds or thousands of years after the original owner is dead.

Does this make sense?

Micha, I think in a way that


I think in a way that would depend on whether there were any parties interested in pressing the suit. Maybe you buy a piece of property from a guy who stipulates that the property cannot be re-sold to a Jew. First of all, the definition of who is and who is not a "Jew" is pretty slippery. If you are the sort of person who regards these types of distinctions as meaningless, you might not bother to interrogate people about their ethnic/religious background before you sell them something. In fact, I would contend that these distinctions are totally meaningless in an objective sense, because there's no way you can measure someone's "Jewishness" with a "Judometer" or something. If someone says "I'm a Jew" or "I'm not a Jew", what the hell can you do to prove or disprove what they say? I would contend that if you put something in a contract for which there is no way, even in principle, to measure objectively, you do so at your peril. For that reason, I think a contract of this type would be totally unenforceable.

But in any case, once the mean old bastard who sold you the property is dead, if you break that contract by selling the property to a "Jew", whose rights have been violated?

The situation is arguably different if there is a body like a homeowner's association that you agree to join and abide by the rules of if you buy the property. In that case, at least there is the possibility that you can convince the association's other members that excluding Jews is of no economic value, and needlessly creates ill-will, but I would argue that this is a different situation from the anti-semite who sold you your property reaching out from beyond the grave to interfere with your property rights.

Of course, you can always refuse to buy under those conditions, because you find them to be unreasonable. If you find the terms unreasonable, it is likely that others will find them unreasonable as well, and the anti-semite might be unable to sell his property under those conditions. Arguably, this stipulation would have the effect of lowering the value of the property by making it less liquid since there's a special condition on the re-sale of the property. In a free market, the anti-semitic seller would probably be forced to discount the price of his property, so his racism is punished by the market.

I don't see how a homeowner's association can be seen as imposing conditions on people who have not consented to them--nobody is born into a homeowner's association.

I would say that what you name a "legacy contract" is not essentially different from any other kind of contract, because later buyers and sellers are not party to the *original* contract, but only to the contract they enter into. It's really a kind of recursive contract. What you're saying with this kind of contract is you agree to the contract's special conditions, and you agree to require the same special conditions in a future contract you make over the same property. If I buy the property from the anti-semite, and his special stipulation is that I not re-sell the property to a Jew, and that I require the same condition if/when I re-sell the property, then the person who buys the property from me is not bound by the *original* contract, the one I made with the anti-semite, they are bound by the contract they made with *me*, one which happens to have the same special conditions.

Okay, this is already way too long, but one last thing to point out with regard to contracts, is that when one enters into a contract, one is not morally bound to satisfy the conditions of the contract, no matter what. One always has the option of reneging on the contract and paying reasonable (probably pre-determined) compensation in lieu of satisfying the contract. If you reach a point where satisfying the contract is more expensive then paying the penalty for reneging, it makes economic sense to buy your way out of the contract and carry on.

John T. Kennedy, In legal

John T. Kennedy,

In legal theory, I believe, the states were heirs to all jurisdictions of the Crown, including the public lands. The Articles of Confederation were not ratified until Virginia (the state with the most plausible claim) and several other states ceded their charter claims to the Northwest Territory.

In the Southwest, the states simply extended their charter boundaries to the Mississippi. Kentucky was originally a county of Virginia, Tennessee was North Carolina's western territory, and the Mobile Territory from which Alabama and Mississipi were formed originally belonged to Georgia.

On the broader topic: As a

On the broader topic:

As a mutualist, I prefer the occupancy-and-use rule of tenure to either the Lockean or Georgist standard.

But Lockean tenure is very close to an occupancy-and-use standard for initial appropriation of unowned land (especially given the "sufficient and as good" proviso), if not for maintaining and transferring ownership.

So there is a great deal of common ground between mutualists and Lockeans-Rothbardians. By the latter standard, a huge amount of present "privately" owned land is not legitimately owned, and should be morally regarded as unowned. When the state preempts access to "vacant" land, and then deeds large tracts of that "public" land to land-speculators or mining and logging interests without any direct, personal act of appropriation by altering the land, it really amounts to a kind of tax farming. It is granting to a private landlord the ability to gouge the rightful first occupier for being allowed to homestead it.

As Mises said, you never see giant tracts of land unless there was some kind of semi-feudal subterfuge in the past.

Qiwi, rather than respond to

Qiwi, rather than respond to your comments, I wrote a new post which encompasses what I would have said.

"In legal theory, I believe,

"In legal theory, I believe, the states were heirs to all jurisdictions of the Crown, including the public lands."


Why ought other interested parties recognize that?

Nice post. BTW, I have

Nice post. BTW, I have always had a bit of a problem with Lockean initial acquisition theories, particularly the idea of "mixing one's labour with X" gives one a right to own X. What exactly does this "mixing labour" consist of? Does it involve physical and mental exertion, or entrepreneurial altertness, or some other human act or thought?

Of course, these thoughts lead us to the thorny issue of intellectual property rights, where the idea that one owns say, the patent on an invention can be a matter of bitter dispute.

Fortunately for libertarian theory, though, the practical benefits of having enforceable private property rights vastly outweights theoretical objections, though there is obviously no harm in trying to frame the case for property rights in as water-tight a way as possible.


John T. Kennedy, I meant to

John T. Kennedy,

I meant to say they actually *were* recognized, under the terms of the Treaty of Paris and the international law of the day, as heirs of the British crown.

The federalists and nationalists later tried to rewrite history, and to claim that all the sovereign powers of the Crown devolved on the Continental Congress--it's a common thread running through Story's commentaries, the speeches of Webster and Lincoln, and all the way to the Curtiss-Wright decision.

But that was not the understanding at the time. The Continental (and Confederal) Congress was nothing but a treaty arrangement between thirteen sovereign republics, analogous to modern-day NATO.

Of COURSE there's no valid moral reason for a "public" domain to exist at all--all land not occupied should be open to the first homesteader. But given the statist assumptions of the time, I'd much prefer land ownership exist at the state than the federal level.

Johnathan Pearce, You're

Johnathan Pearce,

You're right--what, exactly, consitutes sufficient "admixture of labor" for appropriation is a practical question with no obvious answer. At one extreme, one might have a property right only to the actual square footage one came into physical contact with; at the other, some proponents of what Jerry Tucille called "anarcho-landgrabbism" might say that a Pope drawing a line across a map of the Western Hemisphere was sufficient admixture of labor.

In practice, any form of land tenure will depend heavily on customarily defined "rules of the game." Both the Lockean-Rothbardian and the Tucker-Ingalls models of ownership would be applied according to standards (a "libertarian law code") worked out by local free juries, defense agencies, or mutual protection associations.

so many good threads, so

so many good threads, so little time. I reject both intitial aquisition theories of property as well as government. I think governments have a stronger argument though, and I place the social contract before the "private property" contract. Hence I see no contradiction is advocating the expansion of the state if it is neccesary to curtail the power of large private institutions as well as veritable world governments like the WTO, world bank and IMF.

I've never understand why

I've never understand why anyone takes social contract justifications for government seriously. The number one requirement in any contract is the consent of both parties. Where is my consent to be governed? Some claim that my decision to remain within the jurisdiction of this government implies consent, but how does this differ from a person's decision to remain within the jurisdiction of a mafia? Does that imply consent as well?

I see no contradiction is advocating the expansion of the state if it is neccesary to curtail the power of large private institutions

Do you believe that it is just to curtail power regardless of how that power is used? If I am stronger than the average man, should I be forcefully weakened? The name Harrison Bergeron comes to mind...

Nozick in no way envisages

Nozick in no way envisages the creation of a welfare state. Instead he argues that humans essential like society 'to look acceptable,' thus out of humanity will give to others. In our increasinly isolated rich pockets, such as gated estates, and masses - Africa, being poverty ridden, the system is at fault. His utopian ideals however, promises the justice of rectification, now the recompensation, for slavery, imperialism, and just about every bastard action that humans have ever committed, whatever normal distribution patterm is concieved, as Nozick argues, for, is not only unfeasible but the mildest terms bullock. Lets be serious and go back to RAWLS>