On any non-anarchist view, people may be legitimately expropriated for some purposes, even if those purposes are limited to funding the “night watchman” functions of a minimal libertarian state, compensating people for the imposition of negative externalities, and so on. We can agree with Nozick that “No one has a right to something whose realization requires certain uses of things and activities that other people have right and entitlements over,” in the sense that it will not do to talk in abstract terms about people having a “right to” whatever seems good for people to have, as though these goods were just manna from heaven. We need to speak clearly about what we think other people are obligated to provide those we’re asserting have a right, and which of those obligations may be coercively enforced.

Many people who say we have a “right to healthcare,” for instance, mean that they think we are all obligated to contribute—and if necessary may be compelled to contribute—to some public scheme for the universal provision of healthcare. Most of those people do not mean—I hope—that retired doctors are under a coercively-enforceable obligation to help provide that care, such that they may be conscripted into service, or that healthy people may be compelled to serve as unwilling kidney donors. Rights do not float free from enforceable duties, and we ought to take care in asserting a purported “right” that it does not conflict with other rights, including just claims over assets.

But the same holds in the opposite direction.  I may have a just claim against anyone who would seek to compel me to cough up $20… unless they are the agent of someone to whom I promised that $20 in return for some service, and are demanding it for the purpose of making good on my pledge. Ditto for an agent of someone whose property I damaged in a way that will cost $20 to repair. Whether I have a right against someone seeking to expropriate me will often depend upon what they want the money for.

Suppose, counterfactually, that we did live in a society where some intergenerational scheme of transfers and provision of certain goods, such as public education, did substantially achieve equality of opportunity, within realistic limits. Assuming the persistence of something recognizably like current family structure, there would be no getting around the vagaries of upbringing, or of our basic biological endowments, but without gross disparities in things like educational opportunity, childhood nutrition, and so on. Despite this  basic equality, there would nevertheless be significant disparities in outcomes—and in particular in wealth—owing to all sorts of remaining differences between people, including their talents, determination or worth ethic, preference for income over leisure, and a healthy dollop of simple dumb luck.

Eventually, the taxman cometh to each adult member of this society, and suggests that they are obligated to contribute some percentage of their income for each of two distinct purposes.  One is the preservation of the system of equal opportunity in which each was raised. The second is a system of transfers to equalize the differential outcomes of the adults who have come out of that system.  The better off among these adults object that they’ve fairly earned their wealth, and should not be coercively deprived of it. The taxman, it seems to me, has a stronger response in the former case than the latter.

In the former case, the taxman can say: What you have now, you have in no small part because of this intergenerational system of goods provision.  Even if your parents would have been able to give you a decent start without public assistance, you have earned your income by engaging in productive cooperation with people who may not have been as fortunate. You cannot reasonably complain about being asked to pay back into this system at least the amount by which your position is better than what it would have been in the absence of that system. Moreover, your claim that you have fairly earned your holdings may depend, in part, on your having started out under conditions of rough equality with others. They cannot object that it is unfair of you to command so much wealth when they had as much opportunity to earn it as you did, but did not.

Nozick, to be sure, would not have been much moved by these arguments at the time he wrote Anarchy, State, and Utopia, but they are, at any rate, facially somewhat plausible answers to the property owner’s objection, provided the underlying empirical claim turns out to be true. In many ways, this answer would parallel the answer the taxman might give to justify taxation in order to support provision of police and courts: You could not have earned your wealth, or nearly as much of it, absent the stable institutional background that enables market cooperation.  You cannot now turn around and deny your support, by means of the same resources you have earned on the market, to the perpetuation of the system that made it possible.

Nozick explicitly rejects the tacit principle of reciprocity invoked here: We do not (he observes) normally think people can be unilaterally obligated to pay for supposed benefits they’ve been provided with unasked. You cannot weed someone’s garden while they sleep, then demand a fee for the service. But in this case, the taxman can point out that it would not have been possible to ask each child whether they wanted to agree to take part in this sort of system, leaving us with little alternative but to fall back on some kind of principle of reciprocity, or to forego a system of benefits we genuinely think makes everyone—including those asked to do more to fund it—better off in terms of the very wealth they’re asked to pay back. Each may be better off economically with a system of opportunity-plus-taxation than each would be without either the system or the taxes that fund it, and for obvious reasons, it may simply not have been possible to let each person decide in advance whether they want to accept this package deal. But if you say you would have rejected it, all you’re being asked to return is the same funds you would have implicitly rejected at the same time.

Perhaps the taxpayer relents in response to these arguments. Can something similar be said about taxation for equalization of economic outcomes? This, too, might be a partly empirical question. It’s conceivable that at a given time, it’s less costly to provide some minimum standard of living to the worst off than to pay for more cops and prisons when the worst off become desperate. But against a background of rough equality of opportunity, it will generally be much less plausible to argue on grounds of reciprocity that each taxpayer—each actual taxpayer, including those who pay in without drawing on the system—is made better off on net by the existence of a system of compulsory contributions and transfers.

Here, the taxpayer may say: “I have recognized several exceptions to my general claim to have a right to my holdings. When you pointed out that my business creates various environmental externalities, I recognized my obligation to surrender certain funds to support programs that mitigate those harms or compensate those adversely affected. When you pointed out that my holdings depend on a system of courts and law, and upon a system of education that prepares my fellow citizens (in childhood) for social cooperation as adults, I acknowledged that I couldn’t coherently invoke my right to my holdings against a demand to help support the very systems that are its preconditions.  But these exceptions do not plausibly apply to a system of redistributive transfers to other adults, at least above whatever level is necessary to ensure basic social stability.  These transfers are not part of an intergenerational system from which I myself benefit; this system of transfers merely imposes a cost on me for the benefit of others. It might be morally better for me to voluntarily contribute to help my fellow citizens, but absent some such special justification, there’s no exception to my general right to my holdings that would permit compulsory expropriation for this purpose. Moreover, as an adult, I am perfectly capable of joining in a system of mutual social insurance with others if I do think it’s likely to be in my interest to do so.”

There are a number of familiar answers to this sort of argument, and there’s little purpose to my rehearsing “Theories of Social Justice 101″ here by elaborating on them. But there’s at least a facially plausible argument for treating public provision of “opportunity” programs as justifying an exception to people’s generally valid claims on their fairly-earned holdings, in a way that is not available for straightforward redistributive programs.  This may, of course, be wrong. It may be wrong because a parallel argument is available for those programs, or it may be wrong because the type of justification I have sketched very roughly above will not actually work even in the case of opportunity-providing programs. Even if my proposed distinction is right insofar as it goes, there may be other arguments supporting compulsory funding for redistributive outcome-equalizing programs that render this distinction moot. It may be that I am not obligated to cough up the funds for such programs on the basis of this sort of justification, but some other better one that applies equally to “opportunity” and “outcome” programs. But it is not, it seems to me, an obviously wrong distinction to draw, or a clear sign of theoretical incoherence to treat these cases differently.

In general, I tend to think it’s the other way around. People who imagine themselves to be utterly practical and non-ideological are usually just doing their philosophy tacitly, which usually also means badly. Most often, the philosophy in question is a potpourri of mutually incompatible forms of consequentialism seasoned with unexamined, inherited cultural prejudices (dignified by the label “common sense”). But for self-conscious libertarians, who often do make a point of stressing a distinctive theory of rights as the basis of their policy views, I think there’s probably something to this.

So, for instance, libertarians tend to think they are distinguished from others by adherence to some version of the Harm Principle—the idea that individual liberty should be coercively regulated only when it entails harm to unconsenting third parties (as opposed to for paternalistic reasons). But even if libertarians are unusual in regarding this as a necessary condition of regulation, almost everyone regards it as among the clearest and strongest justifications for intervention, and so quite a lot of policy disagreements are nevertheless driven, not by dispute over the (unique) validity of the Harm Principle, but about which types of harms count (which sounds philosophical, but usually has an empirical component) and which activities are, empirically, harmful enough to restrict.

Drug prohibition may be the classic example of a “paternalistic” policy that libertarians reject on the grounds that we all have a right to go to hell in our own way. And certainly, there’s a strong paternalistic strain in most prohibitionist arguments. But it’s also worth looking at how much Drug War propaganda—especially the stuff that circulated aroundm the time of the passage of the Harrison Narcotics Act—involves exaggerated claims about how drugs almost invariably turn once-decent people into addiction-crazed thieves, rapists, and axe-murderers. Think Reefer Madness: It’s viewed strictly for laughs now, but around the time we were actually banning the stuff, many educated people’s beliefs about it were not much less ridiculous. And if it were really true that some drug reliably transformed almost everyone who used it into some berserk, violent beast, then (bracketing pragmatic concerns about black markets and so on) it’s not clear a libertarian could make a very strong moral case against prohibiting (or very strictly regulating) it. Less dramatically, there might be a range of views about which sorts of harms—such as being prevented by addiction from meeting the obligation to care for one’s children—would justify intervention if they did follow inevitably (or nearly inevitably) from drug use. Again, this isn’t to deny that there’s a powerful paternalistic component to prohibitionist arguments, but it’s a mistake to understimate how much work is done by (often confused) beliefs about the magnitude of third-party harms that would result from decriminalization or legalization.

Libertarians also tend to say that taxation to support a minimial government that enforces individual rights against violence, theft, and fraud is legitimate—but that taxation for redistributive purposes is not. But this doesn’t actually get you to a determinate set of policy positions without further empirical premises. Suppose, just for the sake of argument, that some amount of subsidy for education, or for job training programs, did more at some margin to reduce crime, at lower cost, than additional tax-supported policing and incarceration (in part by turning potential inmates from a tax-drain into part of the productive tax-base). It’s true, of course, that such programs are typically defended on other grounds—such as the obligation to help people for their sake, and not as an indirect form of self defense—but if we assume those facts, it’s not clear what a philosophical libertarian would have to say against these policies as a mechanism for rights protection. “No, tax me more for less effective cops and jails!” doesn’t sound like much of a rallying cry, and while there’s an obvious incentives argument against a policy of directly bribing people not to commit crimes, it’s doubtful it applies to education.

Obviously, someone with a libertarian view about what types of justification for state action are valid will admit a case for tax-supported programs of this sort under far narrower sets of circumstances than someone who thinks they’re justified by all sorts of benefits beyond preventing rights violations. The libertarian may also have a variety of views about economics or the dynamics of bureaucracy that make him less likely to believe such programs will actually be effective. The point is just that the policy view doesn’t fall straightforwardly out of a set of premises established by rights theory or moral philosophy. Empirical beliefs are doing a lot of work, both for those who accept a libertarian position and those who reject it. Sometimes the philosophical differences would lead people to different policy views even if we agreed on all the facts. But there are many fact patterns where the plausible moral views all (or mostly) converge on a common normative result, even if for different reasons.

Supposing that’s right, what follows? The bad news (for those who find this sort of thing congenial) is that this reduces the number of questions that can be decisively answered from an armchair by contemplating the nature of rights. The good news is that many disagreements that appear to be grounded in divergent and incompatible values are at least partly concealed empirical disagreements, and therefore perhaps less intractable than they sometimes seem.

What exactly does it mean to say the state is justified, though? Of course he doesn’t mean that just any state anywhere is justified—at most some states are justified. When Nozick claims that state can be justified, that is consistent with holding that all extant states are unjustified. Does it mean we could just impose a minimal state on a well-functioning anarchic society, if we ever found one? Probably not. If X could or even is likely to arise out of Y through a series of blameless steps, and if Y is better than X, it doesn’t automatically follow that we can impose Y upon people who are in situation X. (E.g., suppose I could prove that nearly everyone who has a blue stripe Mesa Boogie Mark III will end up naturally wanting to buy a Mark V instead, and I could prove that the Mark V is superior to the Mark III. It wouldn’t follow that people with Mark IIIs are obligated to buy Mark Vs, nor would it follow that I could force them to buy Mark Vs right now.)

I have some views on what Nozick thinks it means to justify a state this way, but I’ll just leave it as a puzzle here.

Of course, if we did find a well-functioning anarchic society, that would tend to undermine Nozick’s argument: For he isn’t just claiming that a state might arise in the fashion he describes. Rather, he’s pretty clearly trying to make the case that it almost certainly would arise, even granting the anarchist the most favorable realistic conditions. This, I think, points the way to understanding what Nozick is up to here. Anarchists, after all, are not generally seeking to convince us that we ought not to set up governments and spoil our beatific anarchies. They’re trying to persuade us that we ought to abolish (or at least flee) the governments that are already all but ubiquitous in the modern world.

Now, it might be that no existing state is directly justified by having arisen from a state of nature without violating anyone’s rights. But if it were established that even under the most favorable realistic circumstances, we would in any case end up with a de facto (minimal) government, then the argument seems to lose a good deal of its practical force.

The anarchist can, of course, continue to stress that this actual state did not emerge from a series of a series of free contracts (plus compensation for the prohibition of risky enforcement) by an invisible hand process—and suggest that if a morally justified state would emerge in that way from anarchy, then we ought to let it do so, and consider that state justified (or less unjustified?). But if this is likely to entail (at best) a costly, and quite likely a messy and violent transition process, it gets hard to see the point once we allow that the outcome is still, ultimately, going to be a state. On Nozick’s view, it might be a much smaller state, but if the point is to arrive at that goal, then working to shrink existing states—however quixotic an endeavor it might sometimes seem—is at any rate unlikely to be more difficult than abolishing those same states, building new ones (perhaps by invisible hand mechanisms from competing protection agencies), and then endeavoring to keep these new states properly limited.

What we perhaps get out of Nozick, then, is a kind of negative or inertial justification of existing states: Not an argument for thinking that they are legitimate in the sense that his morally pristine Dominant Protection Agencies might be, but an argument against the moral necessity of abolishing rather than reforming states that are admittedly historically unjustified, because that’s what we’d end up with anyhow after a great deal of trouble, even if nearly everyone were reasonably conscientious about trying to respect people’s libertarian rights.

Since writing about the Wilt Chamberlain example last week, I’ve been revisiting Anarchy, State, and Utopia and thinking about what legitimate criticisms can be leveled against this particular step in Nozick’s argument.  I still think Stephen Metcalf’s complaints are basically frivolous, and his recent response to his critics does little to change my view.  On the question of whether Nozick meaningfully “repudiated” libertarianism, he stresses that some of what Nozick says in the 1989 essay “The Zig Zag of Politics” seems more at odds with libertarianism than the positions he advanced both before and after—notwithstanding his later claim to have considered himself a libertarian “all along.”   I think my last post sketches a plausible fallibilist reading of “Zig Zag” on which the gap between that essay and his other writing is not as great as it might seem at first blush, but I’m not ultimately sure why this is supposed to matter all that much—or why you’d try to make so much of a change of heart that, if it was significant, was also apparently temporary.

As for the Chamberlain example itself, my objection was not that it is not sufficiently “representative” of Nozick’s views, but that it is not an argument to the conclusion Metcalf thinks it is, which means his attempted rebuttal is tantamount to establishing that the Pythagorean Theorem fails to prove Reimann’s Hypothesis. Metcalf halfway seems to acknowledge this, but insists the example is “rigged” in a way designed to “muddle” our intuitions:

Why, if Nozick did not want to game his example, did he choose Wilt? After all, if Sanchez is correct, isn’t the point made just as well with, say, a happy-go-lucky doofus who rides a wave of Internet exuberance and cashes out big, all while adding to the world precisely zero utility? Absent an injustice in each step (the prospectus is accurate, the bankers price the IPO fairly) the resulting gross inequality itself cannot be regarded as unjust. But I didn’t choose Wilt Chamberlain; Nozick chose Wilt Chamberlain. I.E., he wanted to harvest all of the sentimental associations from a historical reality while leaving behind all its real-world complications.

Well, I don’t know why Wilt Chamberlain. Why trolleys? Maybe Nozick was a basketball fan. Maybe it just seemed simpler than something involving stock options, IPOs, and fine points of securities law. Most likely, though, it’s because at the time Nozick was writing, Wilt Chamberlain would have been the most prominent pop cultural example of a celebrity many people thought outrageously overpaid. Even today, critics of inequality will routinely use professional athletes as an example of the absurd disparities market systems permit, as in “What kind of sane economic system lets a grown man make a million dollars playing a game most people consider recreation, while teachers are underpaid?” In the early 1970s, Chamberlain would have been the poster boy for this kind of argument. He was one of the most famous athletes in the country, and had just made news by signing to the Lakers for a controversial and, at the time, unprecedented $250,000 salary, making him the highest paid pro in any sport. That happens to be the exact sum Nozick imagines him earning in his thought experiment, so this is pretty clearly an example “ripped from the headlines” about that controversy. I imagine the choice was motivated in part by the idea of flipping that common complaint around: “You see, I’ll defend even this canonical example of ridiculous inequality.” It’s pretty doubtful, in other words, that many people around Harvard at the time would’ve thought that using Chamberlain to illustrate the point was stacking the deck somehow.

In any event, since the upshot of the thought experiment is to make a point about certain features of patterned (as opposed to historical) theories of distributive justice, rather than to validate in one fell swoop the pattern of holdings in actual capitalist societies, this just doesn’t seem particularly important to me.  The example is, by design “rigged” to be as unobjectionable as possible in terms of the validity of the specific set of transactions described, and given the limited purpose of the thought experiment, this is no dig against it. If you think the result is fair in a case like this, then you think that historical factors can be relevant to assessing the justice of a distribution, and that a patterned view fails to capture the whole truth.

That said—and perhaps in the spirit of the “Ideological Turing Test“—I want to point out some of the ways I think the Wilt Chamberlain Argument does fall short—not, again, as a supposed proof of the morality of real market institutions, but as a theoretical argument against patterned principles of justice. Here’s what a fairer critic might be able to say.

First, Nozick’s claim that patterned principles will require “continuous” intervention with people’s choices to be “continuously” realized does not have much force independently of the argument for thinking that a distribution will be just if it arises from free transactions consistent with a valid Principle of Justice in Transfer (PJX) from a just (according to your favorite patterned theory) starting point. Rawls’ Justice as Fairness is a patterned theory, but Rawls is quite clear that it—and specifically the Difference Principle—applies to the rules and institutions of the basic structure of society, including (inter alia) whatever PJX is enforced. It is not supposed to be an independent criterion for evaluating the justice of a time-slice distribution, except insofar as this may reveal whether the PJX and other institutions have been suitably well crafted in accordance with that principle. 

Moreover, insofar as Nozick supports both rectification of unjust (e.g. fraudulent) transfers, police enforcement of property rights, and taxation (e.g. sales taxes) to support the minimal state, he must also be prepared to countenance “continuous” interference with various kinds of chosen activities. There may be pragmatic issues with the scale or form of intervention proposed, but they’re distinct from the question of whether the intervention is just.

Second, the force of Nozick’s argument relies in large part on being able to grant the patterned theorist a favored starting point, D1, and show how it could be transformed into a distribution highly inconsistent with that pattern by a series of morally unobjectionable steps. For some versions of a patterned theory, this will not quite work. If, for instance, the patterned theorist argues that people are entitled to a share of the stream of social output over time, then no static allocation at a time slice (such as D1) would actually count as satisfying the requirement. More generally, the patterned theorist can object to Nozick’s move from the justice of a distribution to the claim that people therefore have a right to the specific bundle of assets they’re afforded under that distribution. For someone who thinks the just pattern involves rights to shares of social wealth rather than specific concrete holdings, each new child born will be entitled to a share—requiring a transfer from others even though we presumably don’t want to say reproduction involves intrinsic injustice. The advocate of a patterned view can say that transfers to ensure each child a fair starting endowment does not really interfere with anyone’s entitlement to their (previously) just holdings, because what people were entitled to all along was not the specific stuff constituting their previous holdings, but only an equal (or fill in your favorite allocation algorithm) percentage of the total, which they continue to have. Nozick still has the objection that it seems absurd to claim it’s unjust for people to freely do anything with “their” shares that disrupts this delicate equilibrium. But if we’re clear that share rights remain share rights, and don’t translate into rights over the specific assets constituting one’s share at a time slice, the example loses a lot of intuitive force. If I’m entitled to an “equal share” of the floor space at the yoga studio, there’s no mystery why my share might vary over time as more people arrive or the building is enlarged, on top of any gains I might realize from svelte friends offering me portions of their shares until I slim up a bit.

Finally, and perhaps most importantly, the intuitive appeal of the argument rests on the tacit premise that if D1 is just, and the microtransfers that lead from D1 to D2 are individually morally permissible, then the macrodistribution D2 effectively inherits the justice of the microsteps. As Nozick himself observes, of course, one could “shoehorn” a patterned view into the PJX, such that individual steps contributing to the disruption of the macropattern are ruled out (or corrective transfers mandatory), even though the microtransfers would be unobjectionable absent consideration of their contribution to altering the macropattern. No correct PJX, Nozick thinks, will have this form. This seems to beg the question against the patterned theorist in a way that is hard to justify. This is especially so given that, on a plausible libertarian theory, it will be the case that independently permissible actions may be rendered wrongful by virtue of their contribution to an aggregate effect.

Consider, in the spirit of Derek Parfit’s (itself highly unrealistic!) “harmless torturers” thought experiment, certain kinds of pollution. Suppose it is the case that many producers emit, as a byproduct of industrial activity, a variety of chemicals into the atmosphere. Further suppose that for each factory, its individual emissions make no perceptible difference in the surrounding air quality, but the combined effect of all these gasses emitted by thousands of producers mixing produces some catastrophic ecological effect. 

Each producer can claim that his emissions inflict no harm when considered in isolation, and perhaps they even inflict no marginal harm, holding constant the actions of others. (By analogy with voting: Each voter, at least in a national election, can reasonably point out that her vote makes no difference to the outcome of the election. Yet the outcome is, nevertheless, the joint product of all those individual votes.) In conventional libertarian terms, the ecological catastrophe (should it occur) nevertheless clearly constitutes a serious harm to the health and property of others, in a way that may plausibly be said to violate their rights, whether or not that violation can be ascribed to any individual actor. (To avoid complications involving potential “homesteading” of emissions rights, suppose the producers all act simultaneously and without coordination.) 

Insofar as the ecological harm is foreseeable on the basis of solid science, producers who continue to emit willy-nilly, without coordinating to set limits on their individual emissions, can plausibly be said to act wrongly. If this is so, the injustice of the individual producer’s excessive emission will not be a function of its intrinsic effects considered in isolation, but rather of its role in realizing an aggregate “pattern.” The libertarian can, of course, object that unequal macrolevel distributions do not constitute an analogous “harm,” and that the macropattern at D2 does inherit the fairness of the transfers that give rise to it. But he cannot appeal to a general principle to the effect that rules of justice governing individual action may never factor in the role they play in generating an aggregate outcome.

In the unlikely event that’s not more than enough Nozick for you, Matt Yglesias and I had some things to say about Nozick and political philosophy more generally in a recent Blogging Heads dialogue.

The different levels of ethics have a different status. The ethics of respect, largely specified by what I have called the core principle, is the part, the one part (I think), that is (that should be) mandatory across all societies. In saying this, I am putting forward a particular normative position: that the further ethical levels are matters of personal choice or personal ideal. Even if these further levels are not mandatory for all societies, some particular society may attempt to make one or another of these further levels [requiring affirmative assistance to others, caring and love, and embodiment of various spiritual ideas] mandatory within it, punishing those members of the society who deviate or fall short. I also believe—this is an additional component of my own position, presented in Anarchy, State, and Utopia—that no society should take this further step. All that any society should (coercively) demand is adherence ot the ethics of respect. The further levels should be matters for a person’s own individual choice and development.

Yglesias actually thinks this view is arguably more extreme than the original A,S,&U position, though since Nozick’s primary concerns in that chapter are metaethical, I’d be chary of inferring too much from his passing remarks here. Still, it’s clear enough that he regards this aspect of the position laid out in A,S,&U as “his position.” In what sense, then, do we think he became “less hardcore,” and in what sense did he regard his earlier views as “seriously inadequate”? While it’s probably a mistake to try to shoehorn too much of what a thinker as notoriously mercurial as Nozick wrote into a single coherent view, given the span of time involved, I think it’s useful to consider the position laid out in Invariances in light of what Nozick says in “The Zig-Zag of Politics,” which is the essay that gave rise to the popular impression that Nozick had wholly shed his libertarian ideas. I’ll return to that momentarily.

First, an observation about Invariances. Here, Nozick spells out a view of morality as an evolved adaptation with a specific function: Enabling ever broader mutual social cooperation. He divides this cleanly into “levels,” but it’s not obvious that the boundaries are so sharp and clean as all that. On his “core principle of ethics,” for instance, Nozick writes:

It is desirable to extend the realm of people who benefit from coordination and cooperation. A group G1 should extend social cooperation to G2, if this can be done in some way that benefits those in G2 and improves (or does not worsen) the situation of the poeple in G1. [....] However, a group is not required to extend cooperative relations to another group with whom it has no interactions, at the cost of lessening the benefits to itself.

Now, pace Nozick, it seems at least possible to me that this principle is compatible with some forms of affirmative assistance. It might, for instance, be the case that the (or a) Pareto optimal scenario for interaction between a Better Off and Worse Off group, on the whole and over the long term involves some level of subsidy from Better Off to Worse Off, in the form of provision for education or insurance against extreme hardship, because the social surplus from the productive cooperation thereby enabled—and in particular the share of the surplus accruing to Better Off—is greater than the amount of the subsidy. (It may also be less expensive than enforcing libertarian rights against members of Badly Off who may feel compelled to turn to crime in the absence of viable opportunities for productive cooperation.) Where this is the case, that sort of limited aid might fall within Nozick’s “core principle” even when it is not motivated by an independent principle requiring aid to others for its own sake, at least if that principle is interpreted broadly. If familiar collective action problems make it difficult to supply an adequate subsidy without compulsory transfer, the initial interaction will not be to the “mutual benefit” of those compelled to provide it, but the system of interactions it enables may be. I don’t say this is the case with respect to any particular system of transfers—that’s an empirical question—but insofar as this scenario is not wildly implausible, it is at any rate subject to reasonable disagreement. What falls within the “level” specified by the “core principle” of interaction to mutual benefit is, in other words, not quite so sharply defined as the system of side-constraint rights spelled out in A,S,&U—and my loose interpretation of it may well be in direct conflict with what he says in response to Rawls in Chapter 7 of that book—even though there are enough obvious affinities between these ideas that Nozick himself is prepared to link his “core principle” with the position of the earlier book.

Turning back to “The Zig-Zag of Politics,” I note that one of its primary concerns has to do with the attitude one ought to have in the context of a liberal democratic society in which many different moral views coexist. Where A,S,&U is concerned with ideal theory and the sort of government that could justly arise from a state of nature, “Zig-Zag” is more concerned with how to deal with the range of divergent positions members of a pluralistic society holds. Here, he effectively takes a fallibilist stance that leads him to embrace the titular Zig-Zag of democratic politics over intransigent insistence on one’s own view as uniquely avoiding injustice, at least within a certain range. In some ways, it prefigures the Rawls of Political Liberalism, who focuses on how to deal with the conflict of diverse reasonable moral conceptions.

We hear echoes of this in Nozick’s language in Invariances. In contrast with the stark boundaries of rights-respecting and rights-violating states found in A,S,&U, we find a discussion of multiple levels of ethics, all of which are equally part of morality, even as Nozick argues that only one level is legitimately enforceable. There is, in other words, a stronger sense of tension between competing values: A state which coercively transfers resources to the poor may be enforcing a real ethical obligation even if that enforcement violates the claim to non-interference embedded in the “ethics of respect,” and even if we think those claims should take priority. That seems to mark an important distinction from simple theft, even if we think the transfer is on net morally bad.

Note also the (perhaps canny) ambiguity in the claim that “some particular society may attempt to make one or another of these further levels mandatory,” though he believes no society “should” do so. Does that “may” express a mere possibility, or a permission, as in “it is not the morally optimal policy, but it is in the set of morally permissible options”? (Would that make libertarianism supererogatory?) One way to construe this, again borrowing Rawlsian jargon, is as suggesting that (some modified version of) the view from A,S,&U is one among many “reasonable conceptions of justice” that might order a liberal society, and in Nozick’s view the most defensible one of that set. This is something analogous to the way Rawls recasts the theory of Justice as Fairness articulated in A Theory of Justice as one of several possible “modules” that may be plugged into the superstructure of Political Liberalism.

Since something close to this is roughly my own view, I’m wary of too-confidently projecting it on a thinker who is, sadly, no longer around to correct the liberties I take with his ideas. Still, it is one (I think appealing) way to square Nozick’s claim that he had become “less hardcore” with the textual evidence that his substantive commitments to a moral (and not merely pragmatic) claim against coercive state redistribution remained intact. (There are also, as David Boaz notes, reports that Nozick had modified his views on the inalienability of certain rights.) On this interpretation, Nozick’s substantive view of libertarian rights remained largely the same, but less “hardcore” insofar as that view is situated within a family of reasonable views that give different weights to competing ethical values, rather than simply in contrast to varying degrees of theft, slavery, and predation.

Here’s the difference, very roughly, in case this sounds like semantic hairsplitting. To say someone deserves X is to say that X is in some sense an appropriate or fair reward in light of that person’s morally virtuous qualities or conduct. To say that someone is entitled to X is just to say that the person has a just claim to X, without any implied commitment to some deeper claim about their moral merit. One could fill a book trying to spell the difference out in a rigorous way, but I’ll assume it makes intuitive sense to most people at the conceptual level, whether or not we agree on the proper application of each term. But to pick examples I think folks would generally agree with: someone who makes a heroic effort to stop a purse snatcher might deserve a reward without being entitled to any particular amount (unless the law has created some kind of “Samaritan bounty” to incentivize this sort of thing), while someone who wins a raffle or lottery doesn’t deserve the prize money (they didn’t do anything special relative to everyone whose number didn’t come up) but is nevertheless entitledto it, insofar as the organizers promised that amount to a ticket purchaser chosen by some specified procedure. If we wanted to be cute about it, we could say desert is about your due, and entitlement is about what you’re due.

Again, without trying to make a very rigorous case in the span of a blog post, I think political and policy discussions should concentrate on what people are entitled to, rather than on necessarily muddy attempts to determine (and embed in law) what people morally deserve. For one, the latter question is likely to implicate contested and metaphysically fraught ideals of virtue and (to use the Rawlsian jargon) “conceptions of the good” between which a liberal state ought to be neutral. How morally meritorious is a particular occupation? In what sense do people “deserve” their natural capacities, or the dispositions and habits inculcated into them as children? And of course, absent a sort of happy Liebnizian coincidence, desert will often tend to be in conflict with other sources of entitlement—such as what people have freely agreed to, or what would incentivize more wealth creation—which means making desert a criterion will often involve sacrificing other (I’d say less dubious) values. In case my suspicious progressive readers are inclined to read this as some kind of sneaky attempt to rig the debate in favor of libertarian principles of economic justice, I should note that I’m not seeking to rule out any particular view about what people might be entitled to—maybe including very generous government benefits. I always find it strange and slightly grating, actually, when people say that people “deserve” healthcare or a good education or some minimal standard of living: Usually, the claim being advanced is that these are things we morally ought to have just because we are persons (or at least members of a particular society that can afford these benefits), which seems like the ultimate case of something that is not “deserved.” Language gets tricky here: We sometimes talk as though the only options are that people “deserve” X, or alternatively they are “undeserving of” X, implying that they ought to be denied it. As I hope is clear, though, I assume people will often be entitled to things they don’t deserve—like the two working eyes I was just fortunate enough to be born with.

My impression, incidentally, is that the facially similar economic views of libertarians and conservatives are often distinguished by the extent to which they rely on appeals to desert. Libertarians generally have two broad types of reasons for favoring a free-market system, which countenances potentially quite large inequalities, without a great deal of redistribution: First, they think the incentives and decentralized coordination this system produces generate much more wealth for the society as a whole over the long run. Second, they think it’s an important way of respecting people’s free choices and agreements (given, of course, a bunch of controversial assumptions about the conditions under which a choice counts as “free” and the scope of our rights over physical stuff, as opposed to the added value human effort imbues that stuff with).

Conservatives will say those things too, but it seems to me they’re far more likely to rely heavily (primarily?) on the idea that wealth is a deserved reward for hard work, ingenuity, prudence, and whatever other virtues they ascribe to the rich—while the poor must similarly deserve their lot by dint of being lazy, dissolute, and so on. (I occasionally get the impression that certain progressives hold a kind of antimatter version of this rather Calvinist view, with wealth a symptom of intrinsic vice and poverty a sign of the elect—which seems at least as implausible as the conservative version.) To the extent this view is wrong, it has the morally ugly effect of salting with blame a wound acquired through misfortune or injustice—but also of introducing incendiary judgments of personal virtue into a discussion where they’d best be left aside. It’s easy for arguments about incentives to blur into moralized rhetoric about “rewarding” virtue or vice, but we might have a slightly less debased political discourse if we could talk about economic policy without having to commit to a view about the personal virtue or moral worthiness of different groups of people.

Addendum: The justly ridiculed Tasini v. HuffPo suit might be a good case study in the pitfalls of blurring the distinction. Do the folks who contributed free content to the site–presumably because they wanted a high-profile platform to promote themselves and/or their ideas–”deserve” a share of the profit the site earned? Geez, I don’t know. Tasini’s own filing shows that the vast majority of his posts didn’t attract many comments or retweets, and he was an otherwise pretty obscure political candidate and author, so the odds are decent that he got more out of the arrangement than HuffPo did. But we could argue about who deserves what forever. The question of what everyone is entitled to, by contrast, is pretty dispositively settled by the fact that he agreed to write blog posts without pay, and then freely chose to produce a couple hundred of them anyway.

Addendum II: Since John Holbo clearly didn’t believe me when I said this wasn’t some kind of Trojan Horse libertarian argument, let me be a little more explicit: Aside from not being dependent on our assessment of the moral merit of particular individuals or groups, “entitlement” as I’m using it here is really meant to be neutral between a pretty wide variety of positions about distributive justice. What people are entitled to could be determined by (a set of more specific rules conditioned by) John Rawls’ difference principle. Or Ronald Dworkin’s “equality of resources.” Or everyone could be entitled to precisely equal shares of social output, if that’s how you like to roll. I, of course, do not roll thus—but that’s not baked into this particular distinction.

Also, I hoped it would be obvious that I didn’t intend to use “entitled” in a purely positive or descriptive way (though I can see how the examples I picked might give that impression), since of course we’re partly talking about debates over what the law should be—a question where asking what someone is legally entitled to is, of course, pointless. I have my off moments, but I’m not a total halfwit.

Suppose a genie gives you the power to snap your fingers and instantly implement your preferred theory of political justice.

• By “theory of political justice” I mean, very roughly, your theory about the basic moral constraints that govern what states (or, if you prefer, the “basic structure of society”) ought to do or refrain from doing – whether and to what extent taxation is permissible, whether some form of social safety net is mandatory, whether the government can prohibit or regulate food and drugs, and so on.
  

• By “implement” I mean that the relevant agents of the government (or other institutions within the basic structure) will make reasonable efforts to put your theory into practice. Human nature will not change, and so we can still expect some “normal” amount of corruption, disobedience, and so on.

You, of course, believe that your theory of justice is correct. You also believe (correctly) that most other people do not.

Does the fact that others disagree give you any moral reason not to use the power you’ve been given – beyond reasons of a merely pragmatic sort?

I started posting a comment, but realized I had enough to say that it made sense to break the response out as a separate post. A few reactions.

(1) Can we go halfsies here? Scanning the comments, everyone seems to agree that there are some principles of justice that are at once so important and so plainly correct (don’t torture innocent people for amusement) that we’d have no issue “imposing” them on a population that rejected them, at least by the relatively pleasant expedient of magic, though these also tend to be points on which there’s not much disagreement in the commenters’ actual societies. I have the same reaction. But there are other elements of my views that are (a) important, but sufficiently uncertain that I’d be unwilling to make the call unilaterally or (b) seem certain to me, but are sufficiently minor (think “in God we trust” on currency…) that I might have more qualms about overriding democratic self-determination than about the injustice itself. What’s implicit in this, of course, is that when the problem is framed as a question of what you would do rather than of abstract institutional assessment, it’s especially hard to treat questions of justice and legitimacy as independent—useful though that might normally be—because ultimately you have to ask yourself whether you think the injustice (you deem to be) involved in “imposing” a particular rule on people is more serious than the injustice (you deem to be) imposed on others by whatever rule is currently accepted (or imposed by other sources), adjusted for your level of confidence in each of these evaluations. Put another way, if you hesitate because you think it is wrong for an individual or small group to impose their view on an unwilling majority (you wouldn’t outsource the call to a sympathetic panel of ethicists, economists, and historians either), then presumably that, at least, is a principle you’d be willing to ensure is implemented in the basic structure. Either way, at some level you’re necessarily making a decision internal to your own views about the relative priority of various aspects of justice.

(2) Similarly, if you think justice has something to say about the kinds of educational opportunities to which people are entitled, or the appropriate relative influence of government sponsored versus corporate media, censorship of minority political views, the permissibility of the systematic religious indoctrination of children, or an electoral system structured so as to ensure the domination of political discourse by the choice between two parties, these are all likely to have some bearing on how seriously you take the fact of disagreement on any particular point in an existing society that diverges from your ideal. Political disagreement about the justice of political institutions still takes place within some existing set of institutions. To anchor this to the thought experiment a little more concretely: Suppose my theory of justice holds that the prohibition of most recreational drug use and the unequal treatment of gay couples in marriage laws are both seriously unjust. Ignoring the most recent polls on the latter question, suppose most people don’t agree, and that these policies enjoy majority support. Does it matter if (I believe that) these views mostly reflect status quo bias and would not survive a change in the policy? If, in other words, I have reason to believe that after the change is made, the principle on which the change is based would be widely accepted—or at least, not rejected? Probably suggestions along these lines sound condescending, but sometimes the historical pattern of a normative change building to a legal one and then rapidly “tipping” manifests clearly enough that it’s a form of patronizing indulgence to pretend you can’t see the handwriting on the wall.

(3) Various people in the comments suggest that it matters how the genie actually “works.” Again, one reason you might hesitate is that you think it would be wrong to somehow “magically” change the beliefs of government officials—as by a kind of gentle brainwashing—or because you’re imagining what is normally entailed in practice by a particular form of government preserving itself against a majority strongly opposed to it. At the other extreme, you could imagine a genie that worked by subtle and inherently unobjectionable means—say, by ensuring that appellate judges and Supreme Court justices encountered extremely persuasive arguments that changed their votes in certain crucial cases. If you have views about the relative morality (or “justice”) of the mechanism by which the change comes about, that’s likely to color your perception of whether this counts as an objectionable “imposition.” It might be objected that this line of thinking misses the point of a thought experiment—and especially one invoking magic—which is precisely to abstract away all that stuff so we can interrogate an intuition about legitimacy, and in particular about whether it’s permissible to impose a theory of justice on people who mostly reject it, regardless of the details about just how this comes about. The trouble is…

(4) Normal people don’t actually have a “theory of justice.” Most of us have a variety of moral convictions and intuitions, held with varying degrees of intensity and reflectiveness, at many different levels—and these are generally imperfectly systematized at best. As I suggest in (2) above, a lot of these seem heavily dependent on the existing laws and institutions. One reason I think people started getting into the “how does the genie work?” question is that legitimacy is manifestly not just a question of whether every particular government policy polls above 51%. That makes it a little tough in practice to say just by looking at the substantive outcome what counts as an “imposition,” either under the status quo or in a counterfactual. Lots of people simultaneously disagree strongly with particular statutes or Supreme Court decisions, but do accept the legitimacy of the institutions and procedures that generate those results. (At the extreme, you could imagine cyclical majorities disapproving of every one of a dozen Supreme Court opinions protecting minority rights, but a unanimous preference for letting the court trump the majority if all dozen cases have to be decided by the same method.) On the other hand, I suspect for many people this is contingent on their finding the results more or less acceptable in the aggregate rather than any particular higher-order view about how justice should be implemented institutionally. In any event, if people are prone to focus on the mechanism of change (“how does the magic work?”) I suspect it’s because we recognize that people don’t actually vote for theories of justice, so it’s impossible to really assess the legitimacy of an outcome without knowing something about the process level.

(5) Does it matter if the genie tells you that current institutional arrangements are the result of someone else having made a similar wish in the past? Does it matter how long ago? Does it matter whether the system is (eventually?) stable without magical influence after the initial change is made?

(6) This is probably already implicit, but we ought to distinguish between two (obviously interrelated, but at least conceptually distinct) kinds of motives for abstaining. One is, let’s say, a purely moral rationale, along the lines of: Even if it is absolutely certain what justice substantively requires, peoples have a collective moral claim to have a say in the design of their own institutions rather than having them imposed—even if by nonviolent magical means. As I suggest in (1), I wouldn’t actually give this too much weight all on its own, when the requirements of justice are certain and concern core rights, since the point of principles of justice is precisely to determine what may legitimately be imposed on nonconsenting others. The other is an epistemic or fallibilist rationale: The fact that many other reasonable people disagree is a strong prima facie reason to show a little humility about whether your own view is correct in every respect. Even where there is widespread agreement, you might be wary of any mechanism that would “lock in” the best current consensus understanding (perhaps by magical means), because it would effectively insulate the system against learning as circumstances and arguments evolve. You are justified in holding whatever conclusions seem best supported to you, whether or not others agree, but over the longer run you should hope they can survive the test of whether they do (eventually) manage to persuade others, perhaps in the face of objections you haven’t yet considered. This second rationale, I think, is the far more compelling one.

(7) Fun though the hypothetical is, I think it’s probably not that well suited to getting at the underlying question of how libertarians of any stripe should react to the fact that we live in a mostly non-libertarian world. The real issue for us, I think, is that nobody is actually going to get to fully design a “basic structure of society” in accordance with some coherent theory of justice, libertarian or otherwise. Suppose that the time came when a large majority did accept libertarian ideas: It would still be impossible to assume that the political structure could be centrally planned (so to speak) indefinitely. So even if you thought you had the best ideal theory of justice, to the extent that its appeal relied on many different pieces all remaining in place, you would still have to worry about whether you had a brittle system or one that degraded elegantly as deviations from the ideal were introduced. This is, in part, why I’m lately less interested in comprehensive theories of justice than in finding stable optimizing moves from the status quo that have appeal across a wide range of reasonable theories.

If you’re going to philosophize about liberty, here are three questions to ask:

1. What is liberty?
2. What value does it have, if any?
3. What, if anything, should government or other institutions do about it?

The most intellectually honest way to deal with these questions is to answer them in this order.

Alas, most people who are interested in politics are more concerned with defending their turf and maintaining their sense of themselves than seeking the truth. So, it seems that most people reverse the order of these questions. They start with a predetermined conception of what government ought to do, and then come up with a theory of liberty and its value to fit and reinforce this conception.

This is the prelude to an ongoing series of posts that ask the question “What is liberty?“—and argue against the position that it should be conceived in primarily negative terms, as freedom from interference or constraint. Yet I doubt this is a particularly useful argument to have.

Let’s start with the claim above. It’s surely true that people often do a kind of hackish imitation of “philosophy” that’s little more than casting about for whatever “first principles” seem to rationalize their preexisting policy preferences, then pretend the policy preferences were arrived at by pure deduction from these abstract values. But it seems to me that the reason to criticize this tendency is precisely that it’s intellectually dishonest, not because the correct procedure is to really proceed by this kind of pure deduction from the abstract to the concrete. If that’s what Brennan means to suggest, it seems especially odd given that this is a group of writers who share an interest in fusing libertarian ideas with the theoretical insights of John Rawls. Because one place I’ve always thought Rawls was closer to the mark than many 20th century libertarian theorists was in his endorsement of the method of reflective equilibrium in ethical reasoning—a process of mutually revising higher-order principles and particular moral judgments in light of each other, without giving primacy to either, in order to arrive at a coherent view. On that approach, it seems perfectly admissible to let one’s ground-level moral judgments about government policies or social institutions inform one’s assessment of the weight or priority due the values implicated by those policies and institutions. A considered conviction that some policy or institution is morally repugnant seems like a perfectly good reason to reject—or certainly regard with extraordinary skepticism—any higher order framework that appears to permit it. And while Brennan’s probably right that it would just muddy the water to insist on using “liberty” in a way that applied it only to morally good things, the attempt to totally divorce the term from normative valence is itself in tension with the colloquial usage Brennan wants to invoke against those who prefer a restrictive (negative) definition of “liberty.” In ordinary language, calling a limitation on action a “denial of liberty” often does imply that the action in question is something the limited party would normally be morally entitled to do—or at least a member of a class of actions that are mostly morally permitted.

My own preference is to mostly use “liberty” in the negative sense for the purposes of political philosophy, and use more concrete terms (“wealth” or “opportunity” or “an adequate range of life options”) for the stuff normally grouped under the rubric of “positive liberties.” After all, domain-specific conversations often give terms more restrictive meanings than they have in all discursive contexts. (“I’m afraid I’ve taken quite a liberty…” is not normally a statement with political implications.) Again, this seems to me to be something Rawls got right: He was scarcely hostile to positive rights to a variety of “primary goods” but he still found it useful to distinguish between “basic liberties” (in the negative sense) and “the fair value of liberties.”

But hey, whatever! This is a matter of decision, not discovery. We can adopt whatever definition we like as long as all the participants in the conversation understand how the terms are being used. If someone thinks it’s illuminating to group certain goods as “positive liberties,” we can stipulate that for the sake of a particular conversation. Squabbling over terms mostly seems like a waste of time—better to just cut to the chase and get to the question of what sort of value the members of the class have, and what implications it has for policy.

[Brink] Lindsey seems to have stepped back from his much-discussed 2006 argument for a “liberaltarian” coalition between libertarians and liberals.

I realize the original “Liberaltarian” essay does read as a proposal for a near-term political alliance, but I always took the real point to be more about opening a somewhat longer-term  dialogue to see what we can learn from each other given the substantial overlap in our higher-order value commitments. That, at least, I’ve found reasonably fruitful.

To the extent that this hasn’t resulted in “an equivalent level” of cooperation with the left as that with the right on economic policy, it may be because few liberals have been willing to reciprocate. It’s striking that Lindsey’s own highly publicized efforts at forging liberaltarian cooperation met with little or no positive response among liberals.

This actually seems wrong to me. Yeah, there doesn’t seem to be much interest on the left in any kind of broad self-conscious “Liberaltarian Alliance”—but practical political coalitions don’t actually spring from New Republic essays, any more than real-world friendships arise from a formal declaration of an intent to be friends.. They’re a function of actually getting out there and doing the work, issue by issue, bill by bill, election by election.  Given my own pattern of interests, I end up mostly working on issues where I agree with civil libertarians on the left. And pretty much without exception, they’re happy to work with me on those issues, and for that limited purpose indifferent to whatever disagreements we might have over optimal levels of federal taxation and spending. None of the folks I’ve written for at the Prospect or the Nation have ever expressed the least reservation about running something with a Cato byline. If anything, I think left-leaning civil libertarians are happy to be able to point to us as evidence that opposition to torture or sweeping surveillance authority isn’t some strictly partisan punch up between Democrats and Republicans.  There are, to be sure, advantages to broader alliances, but one benefit to keeping both parties (and their associated movements) at arms-length is that I think (or would like to think) that it’s hard to credibly argue  I’m going to take a position or write an op-ed on one of my core issues with the primary motive of rooting for or against one team or another. Membership has its privileges, but so does a measure of distance.

Update: In light of Ilya Somin’s response, I realize I’ve muddled together two distinct points here.  The first is that I don’t think libertarians—and certainly not the libertarian movement as a whole—need to decide to “throw in” with one side or another in some kind of general coalition, whether traditionally fusionist or “liberaltarian.”  That said, if there were going to be some kind of broader “liberaltarian” alliance or collaboration, my point is that while it would obviously entail more than the kind of ad hoc, issue-based collaboration I’m suggesting is enough, that’s how in practice it would have to start anyway. So even if you thought a “liberaltarian alliance” were ultimately the way to go, you’d still begin with more limited collaboration and go from there.

Paul’s more sophisticated critics argued not that he was racist but that he was unrealistic. Given the social environment created by centuries of government-backed slavery and oppression, they said, segregation in the South would not have been eliminated simply by withdrawing state support for it. Even if every racist law and government policy were abolished, racist business practices would have lingered as long as there was a demand for them or as long as owners were willing to pay an economic price for their own bigotry.

I think a point made by Richard Epstein bears repeating here: It was not merely “owners… willing to pay an economic price for their own bigotry” locking in segregation, even in the absence of Jim Crow laws. Rather, as Epstein observes:

“In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The CRA, in effect, gave cover to owners who reasonably feared local authorities would be unable or frankly unwilling to protect them from racist vigilantism. Also, while Jacob’s point about the long-term consequences of blurring public and private with the notion of “public accommodations” is well taken I wonder whether that might have been limited if folks making the property rights argument had been more willing to recognize justifications for specific, historically-grounded exceptions to the principle rather than framing it as demanding either a wholesale acceptance or rejection. A lot of people, quite understandably, concluded that if a libertarian view of property absolutely precluded any effort to remedy moral horror, that was pretty decisive evidence against the view generally.

Finally, while I think most of the libertarians I’ve talked to have more or less agreed with the position I staked out in the Newsweek piece—though there’s obvious sample bias there!—I’ve also had a few exchanges with dissenters. One interesting argument that occurred to me is that, compared with other mechanisms for attempting restitution for a long history of state crimes, the CRA has the morally attractive feature of putting the “burden” of the remedy on those who particularly deserve to bear it. Here’s how I put it in one such exchange:

It may help to think of it in terms of alternative remedies. The state has systematically enslaved and oppressed an entire group of people for generations; merely stopping seems to fall far short of adequate restitution. What should have been done, then? One obvious possibility is a massive system of reparations in the form of direct cash payments. But that approach has many obvious drawbacks. First, it would likely have been politically impossible. Second, to the extent that the real and pervasive injury involved the destruction of social and human capital and the ordering of institutions to exclude African Americans, it’s not clear how far this would have gone toward genuinely improving the position of the formerly disfavored class. Third, the level of redistribution involved in anything approaching an adequate compensation package would have entailed massive economic dislocation. Fourth, the burden would fall equally on those complicit in the crimes of the past and those who’d worked against them. Whereas the CRA, rather neatly, imposes a “cost” precisely on those likely to have been complicit in the previous wrongs: Property owners who supported segregation out of conviction rather than fear, and so probably bore substantial blame for the perpetuation of the Jim Crow regime. If we think it’s sometimes appropriate to attempt to correct injuries inflicted by the state itself—which even in the straightforward case of monetary compensation will involve taking the property of taxpayers—the CRA approach strikes me as a pretty decent mechanism, all things considered.

Addendum: I should note I’ve seen a few people pick up variants on Chuck Lane’s argument against the property-rights position, which I think is pretty shabby:

There is no such thing as “private” discrimination with respect to a public accommodation. Like any other claimed property right, it could not exist without government support.

Suppose an African American customer sits down at a “whites only” restaurant and asks for dinner. The owner tells him to leave. The customer refuses and stays put. What are the owner’s options at that point? He can forcibly remove the customer himself, but, as Paul concedes, that could expose the restaurateur to criminal or civil liability. So he’ll have to call the cops. When they arrive, he’ll have to explain his whites-only policy and ask them to remove the unwanted black man because he’s violating it. But they can only do that on the basis of some law, presumably trespassing. In other words, the business owner’s discriminatory edict is meaningless unless some public authority enforces it.

I’ve seen arguments along similar lines appealing to public provision of various municipal services, upon which the government may place all sorts of strings. The trouble is, this line of argument clearly proves far too much. Suppose a private home owner is holding a (more or less) open house party, but turning away members of certain racial groups at the door. The enforcement mechanism is, of course, precisely the same: There’s nothing peculiar to “public accommodations” on this score. If we take his argument seriously, there is simply no private sphere, because any choice a property owner might make is ultimately backed by state power. As is my right to be protected from assault by people who might be offended by my political or religious views, or my sexual practices, or my annoying smirk. All our rights are ultimately enforced and protected by a system of law. To say that this entitles the state to decide which particular exercises of that freedom it deigns worthy of protection is just to say you don’t think there are any real rights. It is an argument I find it impossible to believe Lane would accept in other contexts.

And frankly, I rather doubt Lane really grounds his position on that argument in this context either. Suppose that a store set up a system whereby customers had to be individually buzzed in by a guard manning a closed-circuit camera. Would Lane say that this method of maintaining segregation would have to be permitted, so long as the owner is not relying on the power of police to exclude trespassers? My suspicion is that he wouldn’t. And that’s fine! Because there’s a much more straightforward argument—the restitutionist argument—underlying the intuition that the CRA was legitimate. But going that route involves acknowledging that there are conflicting valid claims here, and that the liberty interest burdened by antidiscrimination law (here limited to businesses as opposed to private homes and associations) is genuine, even if on balance plainly outweighed by the moral imperative to seek a remedy for centuries of state-backed racial oppression.

So why the more convoluted argument, when a more straightforward (and, to my mind, more compelling) one is readily available? Maybe it’s just a desire not to cede any ground to bigots, but I think what’s at work here is another kind of moral utopianism. It’s not enough to say that the CRA was a moral triumph on balance—Lane wants to be able to think of it as an unalloyed good involving no genuine trade-offs. So we get this strained effort to show that any apparent right or liberty burdened by the law is merely illusory. There is, perhaps ironically, a related psychological phenomenon called the Just World Hypothesis, which has itself played a role in many cases of group oppression. Briefly, the idea is that we like to believe we live in a basically fair universe, and in particular that our own society is just. So when we see that some particular group is badly treated, we (perversely) cast about for reasons that they must deserve it in order to preserve our picture of a just world. Lane’s yearning to see moral perfection in an ultimately just law is not so obviously repugnant, but in a world where we routinely have only a choice between greater and lesser evils, it’s almost always a moral mistake to try to define the lesser ones away.