NOZICK, TAXATION AND THE WILT CHAMBERLAIN EXAMP LE

1 . I N T RO D U C T I O N

not get involved in redistributive policies, since taxation (understood as forced redistribution of property) violates peoples rights. In the present paper I will focus on this conclusion of Nozicks theory, and evaluate the main intuitive argument used to support it: the Wilt Chamberlain example.

In his entitlement theory, Justice in holdings, Robert Nozick attempts to set libertarianism, a theory defending the most radical capitalism, on a firm theoretical basis using a notion of rights derived from the Kantian concept of person. Nozick claims that property rights are absolute by linking them to self-ownership, and that social justice is attained if such rights (and other negative rights) are not violated. Justice derives from the history of transactions by which property rights are acquired, not from the fact that a distribution of property reflects some patterned end-state; what is justly acquired can be freely transferred. Assuming that the world is initially unowned, Nozick adopts the Lockean proviso 1 for the closing of the commons to explain how property rights are originally obtained. One of the main results of his theory is that the state is to be limited to an institution for the protection of the system of free exchange, and must

2 . T H E W I LT C H A M B E R L A I N E X A M P L E

As Kymlicka (2002:112ff) argues, common sense indicates that we avoid historical accounts of social justice. Common sense tells us that I am not entitled to what I have because some person in the past acquired it in a just way and all the transfers that brought it to me were just: if this were the standard, it would seem that we are not entitled to anything 2, and any appropriate rectification would be frightful even to think of (e.g. giving back all the land in the U.S.A. to the native Indians 3). Hence, we intuitively prefer end-state principles of justice; we are entitled to our possessions insomuch as they are part of a just pattern of distribution of resources in society, or to the degree that the pattern of distribution they form part of approaches an ideal

A process normally giving rise to a permanent bequeathable property right in a previously unowned thing will not do so if the position of others no longer at liberty to use the thing is worsened (Nozick 1974:178). The principle is derived from Lockes justification for the enclosure of the commons in 17th century England; the plethora of problems that such a principle raises when applied to theory of justice are amply surveyed in Kymlicka (2002:113ff.).

This is so since it is almost impossible for these conditions to hold in any case of private property. See Lyons (1981).

pattern of distribution 4. Nozick, however, wants to show that end-state principles are unjust since they cannot be maintained except by going against peoples choices (and hence by force), and from this point argues that we should accept his theory as the only suitable alternative. Nozicks intuitive argument (1974:161-2) asks us to consider a society conforming to the readers pick of patterned distributions (call it D1), which pattern is acceptable to the reader, and consider the case of Wilt Chamberlain, a famous basketball player who signs a contract with his team that in order to play, each fan attending the games at which he plays must place 25c in an appropriate box at the beginning of each game. At the end of the season, the voluntary contributions sum up, Wilt

Wilts wealth, it would be violating peoples right to do whatever they like with their money. The first observation we must make before we consider this case is that Nozick seems to be asking us to consider just the pattern, the frozen state of the distribution, and not also the laws and processes that are in place to maintain such a pattern. But this seems to be an absurd suggestion, since we are evaluating conceptions of social justice, and a pattern without an underlying rationality is

meaningless for such purposes. A pattern may arise by chance, even from a historical principle; hence if there is any injustice in a pattern, it cannot be in the pattern itself, but in the system that holds it in place. Hence, to make any sense of this example, we have to consider also the principles and processes that hold the pattern in place (I will also consider below a society without such processes, Ousofia, in section 3). Let us also make the weak assumption that there is some consensus in the society on such

Chamberlain becomes considerably richer, and the pattern is disturbed (D2 results). Redressing the imbalance would mean going against peoples liberty, since they voluntarily gave the money to Wilt Chamberlain, and if a state were to redistribute

Not all end-state principles are patterned: Classical Utilitarianism does not logically yield any patterns of this sort since it aims to maximize the sum total of utilities regardless of how those utilities are distributed. Nevertheless, for the purposes of the current paper, I will only consider patterned end-state principles.

principles, and that ceteris paribus, the members of the society want to maintain the pattern 5. One of the most serious problems with the Wilt Chamberlain example is its gimmicky structure and timing, to use an adjective dear to Nozick. The contract takes place already within a situation that provides it with a rationality (that underlying the pattern) and where the distribution is broadly acceptable, reasonable). It takes place, therefore, within a society with processes that maintain the pattern, and hence with some sort of legal system compliant with the principles of justice determined by that distribution. The contract cannot but comply with the accepted principles of justice: either there is implicit proviso in the contract (or embedded within the legal language wherein it makes sense) of the sort one understands that in the case where the effects of this contract disturb the pattern of

distribution, the discrepancy will be redressed 6, or else Wilt Chamberlains contract is null because it is immoral (it leads to the violation of the principle of justice that holds at the time of the contract). Besides, it would probably be illegal (since a legal system founded on certain principles of justice would most probably be such as to maintain the stability of the distribution promoted by those principles of justice), and possibly irrational (because, assuming a staunch resource

egalitarianism as the rationale behind D1, how can Wilt make a contract of the sort when (probably) he and almost everyone else agree to the rationale, i.e. that if anyone earned more than the others, the excess would be redistributed according to some egalitarian pattern? What sense is there in asking for the 25c contribution when you know you will not touch any of that money?). Given that Nozick denies there being such a proviso, the example amounts to, metaphorically, an attempt to draft a

Nozick is ambiguous on whether the D1 is acceptable to all members of the society or only to the reader: at a certain point he argues that there is no question about whether each of these people was entitled to the control over the resources held in D1; because that was the distribution (your favourite) that (for the purposes of argument) we assumed to be acceptable (1974:161). But given the possibility of choosing, we may opt for a distribution that has a broad appeal. There seems to be nothing self-contradictory in the idea of a patterned distribution acceptable to all members of society; hence we are free to choose as D1 even a distribution that is unanimously agreed upon.
5

law that makes the constitution illegal. Obviously, there are forums where principles of justice can be discussed, but surely, one cannot defeat principles at

6 In a typical egalitarian distribution this reads: Hey, Wilt, you know that over here people are taxed, so remember that in the end, youll see very little of the extra money youll find in your money boxes.

a meta-level using a situation (Wilts contract) of which those very principles constitute the

they are giving money to someone under certain accepted conditions. But let us imagine, for the sake of argument, Ousofia, a society that agrees to some pattern of distribution but has its institutions so unstable as to permit that contracts made within it can be understood to hold without needing to comply with the principles of justice, without assuming that disturbances in the pattern will be redressed. In such a crazy society, if all people were

conditions of possibility. Nozicks sophism hence consists in making us think that the redistribution after the contract is wrong, not the contract itself which brings about the anomaly; that a coin box in a sports ground can bring down an egalitarian constitution.

3 . OT H E R C R I T I Q U E S O F T H E W I LT CHAMBERLAIN EXAMPLE

to give the 25c to Wilt Chamberlain, this is taken as an opinion poll that reverses the constitution (and the government is not allowed to redress the imbalance afterwards). Ousofians hence put the 25c in the box knowing and wanting that the government not redistribute the resulting anomaly in distribution (whereas, in a rational patterned society, as one drops the money in the box, one assumes that Wilt will be taxed if his income exceeds his fair share). In Ousofia, Nozicks example starts to make sense, only to meet a whole range of critiques that have been made to his argument while putting aside the contract gimmick. If Ousofians are not completely irrational, they would want to maintain the pattern, and if they understand that by putting

One may reply that in some patterned distributions, a contract of this sort may be conceivable and permissible (hence Nozicks

example would make sense, though be very limited in appeal). But surely, we cannot seriously consider such patterned distributions as candidates for D1, for if the pattern is to have any stability (and hence be the result of feasible principles of justice), the rationality of the pattern cannot but make some proviso of the sort we mentioned above, allowing the government or someone else to redistribute wealth, and embody the proviso in the very framework wherein such a contract is possible. By simply buying the ticket and putting the money into the box, spectators are entering a contract wherein

the money into the box they would be upsetting the pattern irreversibly, they would refrain from doing so (assuming that they have enough sense not to undermine a constitution for the sake of a basketball game; see Cohen, 1995:21-23). If not all Ousofians attend the game, there is the problem of third parties affected by the transition; we assumed that D1 was acceptable to most members of society, hence a band of Wilt Chamberlain fans cannot by themselves overturn what that majority agrees to. Nozick (1974:163) argues that it is unrealistic to think that people would want to, would know how to, or would be able to coordinate their actions in order to maintain the pattern. This seems to assume a theory of human nature (that Nozick avoids giving, especially given that the argument should hold independent of any particular such theory), and a strange one indeed: if D1 is accepted by all, it would seem that rational creatures would want to keep it at least until a better one is found on which all agree. Furthermore, the practical problems of maintaining it (know-how, social coordination) are of secondary importance in a debate about justice; in societies outside Ousofia, there can exist such a thing called state that is non-minimal enough to be able to do such a thing, to some acceptable degree.

Furthermore, as Cohen (1995:24) points out, if the example were to prove that all citizens accept D2, even then, what is subverted is the original pattern, not the principle governing it, taken as a principle conjoinable with others to form a total theory of just or legitimate holdings []. The Chamberlain story [] impugns not the original distribution, but the exclusive rightness of the principle mandating it. Hence, if there is a shift from D1 towards D2, this does not mean that the patterned principle is to be rejected in favour of the principle of entitlement, but that some form of entitlement should be combined with the principles of justice accepted under D1. From the analysis of the Wilt Chamberlain example, what we really can conclude is that patterned principles of justice are not only sustained by common sense, but also by the fact that it is very difficult to construct a decent argument against them.

4 . TA X A T I O N A N D R I G H T S

Nozicks point is not really one against redistribution or patterns, since people in a Nozickian state may agree to voluntarily

redistribute their wealth for, say, moral or religious reasons. The critique is centred on the voluntariness of welfare taxation in a state. There is a coercion that Nozick refuses (that coming from the state threatening to imprison you for not paying taxes), and one that he accepts (that coming from market forces 7 that could threaten to let you die of hunger (by boycotting your products) if you do not, say, give money to charity): Nozick doesnt mind that a person dies of hunger or is forced to live on charity as long as s/he is free not to give money to charity. Though we may appreciate the ideological

since his definition of rights is prior to a developed theory of justice (what respects rights as

antecedently defined is just, rather than what (to common sense) seems just establishes what rights we have). But we may question the appropriateness of this structure. Using reflective equilibrium (or common sense), we may feel that a less libertarian theory of justice is more attractive, and tailor rights to suit.

5. CONCLUSION

difference which Nozick seeks to found on the idea of negative rights, one may question the point in defending so deontological a concept of freedom of choice, so narrow and counter-intuitive: as long as the state or some particular person/group does not directly force you, you are free, and justice is guaranteed. Nozick can defend himself against accusations that his conception of free choice is counter-intuitive (and may even seem unjust) by referring to his staunch anti-consequentialism, and

Even if we assume that libertarians in general would accept such a conception of freedom of choice and that it can be sustained, the Wilt Chamberlain example alone does not allow us to conclude that welfare taxation violates rights, and Nozicks more substantial argument for his position (that one can justify in a strong manner the appropriation of holdings, and once this is done, it can be shown that involuntary taxation violates absolute property rights) has been strongly attacked in the literature (e.g. Kymlicka, 2002: 116ff) 8.

7 Market forces are here understood as people or groups that have the power to influence or manipulate market tendencies; in this sense a market may coerce. I think it is nave to conceive markets where such forces are absent, markets considered as chaotic agglomerations of individual interests with no moral import.

8 The main argument is that the use of the Lockean proviso as a basis of a theory of justice involves making arbitrary assumptions of considerable weight, e.g. that the world is initially unowned.

Clearly, there is little hope that an egalitarian may rectify welfare taxation by giving it a voluntary basis (in the Nozickian sense), since by virtue of its very definition, Nozicks understanding of

Lyons, D. 1981. The New Indian Claims and Original Rights to Land in Paul, J. 1981:355-79. Nozick, R. 1974. Anarchy, State, and Utopia. Blackwell. Oxford. xvi+367pp. Paul, J. (ed.) 1981. Reading Nozick. Rowman and Littlefield. Totowa NJ. xi+418pp.

voluntary robustly precludes any hope of achieving this. But similarly, there is little hope that libertarians rectify private property or justify the appropriation of holdings in as strong a manner as Nozicks theory would require. An interesting way out of this deadlock is to consider welfare taxation as a condition for the appropriation of holdings, but this would take us away from libertarianism. The alternative seems to be accepting that Nozickian libertarianism is truly libertarianism without

foundations, as some critics have argued (Nagel in Kymlicka, 2002:105).

REFERENCES

Cohen, G. A. 1995. Self-ownership, freedom, and equality. Cambridge University Press. Cambridge. x+277pp. Kymlicka, W. 2002. Contemporary political

philosophy: an introduction. (2nd ed.) Oxford University Press. Oxford. xiv+497pp.