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Review: Individual Rights and the State

Author(s): James S. Coleman


Source: The American Journal of Sociology, Vol. 82, No. 2 (Sep., 1976), pp. 428-442
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2777109
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Individual Rights and the State:
A Review Essay

Anarchy,State,and Utopia. By RobertNozick.New York: Basic Books,


1974. Pp. xvi+367. $12.95.
JamesS. Coleman
Universityof Chicago

In an earlierissue of this Journal,I examineda recentworkin moral


philosophy,A Theoryof Justiceby JohnRawls (Coleman 1974a). My
aim in doingso was not merelyto bringinto the sociologicaldiscourseon
equalityand inequalitya perspectivefrommoral philosophy.The goal
was greaterthanthat.I hopedby so doingto help in the reorientation of
sociologyto certainimportantmacrosociological problems,those having
to do withthe processesthroughwhicha societygovernsitself.Central
to theseproblemsis thatof maintaining the delicatebalance betweenthe
individualand society,betweenrightsindividuallyheld and rightsheld
collectivelyat the level of the state. Closely related are problemsof
balancinglibertyand equality,or justiceand individualautonomy.
The sociologicalissues involvedin maintainingthe balance between
these partlyincompatibleideals (a balance whichmust be capable of
changingtemporarily whenthe balance betweenindividualproblemsand
collectiveproblemschanges,withoutlosingthe capabilityof returning to
its earlierstate) are oftenneglectedwithinthediscipline,in favorof ques-
tionsmore easily addressedby research.The neglectis understandable
becauseof thedifficulty of theproblems;but it is no less unfortunatefor
thatreason.The passingof the traditionof the grandtheorists has lefta
vacuumin certaincentralregionsof sociology,and it is importantto find
waysin whichthatvacuumcan be filled.
Recentlytherehas been anotherevent of similarproportionsto the
publicationof Rawls's book.' This is the publicationof Anarchy,State,
and Utopia by RobertNozick. The publicationof thisbook providesan
opportunity to examinethese same issues fromanotherperspective.In
1 The reawakeningin moral philosophywas proceedingsomewhat before the appear-
ance of Rawls's book. For example,in 1956, Laslett publishedhis Philosophy,Politics,
and Society: First Series, opening with an introductioncommentingupon the mori-
bund state of political philosophy.By the Second Series (1962) he was able to re-
mark upon surprisingsigns of life,and by the Fourth Series (1972) the revitalization
was so secure that the introductionreflectedupon how it could have been so recently
thoughtdead. It is interestingto note that Rawls's "Justiceas Fairness,"which spelled
out an early formulationof the theorypublished in book formin 1971, was one of
the papers in the Second Series.

428 AJS Volume82 Number2


Review Essay
thisessay,I will continuethe attemptI began in the earlierpaper,using
a detailedexamination ofNozick'sbook to refocusattention on theseprob-
lems which,thoughcentralto the discipline'smission,have languished
withminimalattention.
Nozick is a natural-rights theorist,beginninghis book withthesesen-
tences:"Individualshave rights,and thereare thingsno personor group
maydo to them(withoutviolatingtheirrights).So strongand far-reaching
are theserightsthattheyraise thequestionof what,if anything, thestate
and its officialsmay do." The book, then,is an attemptto answerthis
question,takingas given a set of rational,self-interested personswho
possessindividualrightsin the "state of nature"and are potentiallyen-
gagedin a Hobbesianwar of all againstall.
Nozick's solutionis in threeparts,to whichcorrespondthe threeparts
of his book. In part 1, he asks how the voluntaryassentof rationalindi-
viduals can lead to somethingresemblinga state instead of continued
anarchy.Thus the firstpart is an argumentagainstthe anarchists,and
Nozick showsthelogicalstepswhichlead in a giventerritory to a "domi-
nant protectiveassociation"with the essentialcharacterof the state-a
monopolyovertheuse of coercionor violence.This is his "minimalstate";
part 1 showshow it mustarise throughrationalvoluntarychoice.In part
2, Nozickshowshownothingbeyondsucha minimalstatecan arise,with-
out violatingindividualrights.In particular,he showshow any formof
redistribution in whichthe state engagesviolatesthe rightsof thosefrom
whomanythingis taken.And in part 3, he showshow the combination of
his "minimalstate" withcommunities, possiblycoerciveand nonminimal
ones,can constitutea utopianideal.
In thesethreeparts,Nozick's strongest aim is clearlynot to defeatthe
anarchistsby showingthat a statewill arise withoutviolatingindividual
rights,nor to convincethe readerthathis utopiais the properideal, but
to showthata nonminimal state does violateindividualrightsand there-
foreis unjust.Nozick is principallyconcernedto address the issue set
forthby Rawls,thatis, whatis a just society(or state,or set of institu-
tions)? And the resulthe arrivesat is verydifferent fromthatof Rawls.
Beforeturningto specificcommentson part 2 of the book (and I will
restrictmy commentsto thispart,whereNozick's own greatestinterest
lies), it is usefulto ask whatit is thatgivesNozick'sbooksuchan immedi-
ate and largereputation. It is not a worklike thatof Rawls,containinga
well-developed theory.It is mostsuccessfulin its counterarguments and
counterexamples, so least in its own theoreticalproposals. is roughat
It
the edges,unfinished.
I believethe instantattentionthisbook has receivedis stimulatedby
Nozick's directconfrontation withrecenttraditionin the social sciences.
Withthe singleexceptionof theintellectualthrustof classicaleconomics,

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AmericanJournalof Sociology

whichis libertarian,recentsocial science has been (and currentsocial


scientistshave been) largelystatist,interventionist on behalfof thesocial
underdog,concernedwithredistribution, and moreinterestedin equality
than in liberty.Rawls reflectsthisin his Theoryof Justice.But Nozick
challengesall this-not quite single-handedly, of course-but, forthefirst
timein recentyears,fromfirstprinciplesand at the most fundamental
level. I believeit is thischallengeto receivedtraditionwhich,morethan
anythingelse,generatesthe attentionNozick has received.He, of course,
recognizesthis.He says, in his preface,"I do not welcomethe fact that
mostpeople I knowand respectdisagreewithme" (p. x).
Now let us turnto part2 ofhis book,whereNozickpresentstheposition
and its supporting arguments thatlead mostpeoplehe knowsand respects
to disagreewithhim.Here he presentsarguments opposingany state be-
yondthe "minimalstate." But the centraland longestportionconsistsof
a directconfrontation withthe ideas of his colleagueJohnRawls. Rawls's
theoryof justiceis a theoryof distributive justice,and Nozick beginsthe
confrontation withRawls by a discussionof theoriesof distributive justice
in general,and Rawls's own theory.
As he pointsout immediately, the verypresentation of the problemof
justicein the distribution of individuals'"holdings"(Nozick's frequently
used term)as one of "distributive justice"biases the issue. The terminol-
ogy suggestsa centralagencydistributing collectivelyheld resourcesto
individuals.Rawls partakes of this conception,as Nozick points out
(p. 228), viewingeven individuals'naturalabilitiesas a collectiveasset,
one to be used forthegood of theleast advantaged.Nozick arguesthata
propertheoryof justicein holdings,however,is a theoryof entitlements,
consisting of threeparts (p. 151): (1) Justicein acquisitionof holdings:
"A personwho acquiresa holdingin accordancewiththeprincipleof jus-
tice in acquisitionis entitledto thatholding."(2) Justicein transferof
holdings:"A personwho acquiresa holdingin accordancewiththe prin-
ciple of justicein transfer, fromsomeoneelse entitledto the holding,is
entitledto theholding."(3) Rectification of injustice:"No one is entitled
to a holdingexceptby (repeated)applicationsof 1 and 2." If someonehas
a holdingobtaineddirectlyor at someearlierpointin a way otherthan 1
or 2, thena rectification of the injusticeis necessary,to attemptto re-
createthesituationwhichwouldhave occurredunderjust acquisitionand
transfer.
Nozickleavesunstatedpreciselywhatare just acquisitionand just trans-
fer,or evenwhatare goodcandidatesforjusticein acquisitionand transfer.
I willreturnto thislater.But evenwithoutspecificcontent,theprinciples
sharplycontrastto mosttheoriesof distributive justice.For accordingto
Nozick's principles,justice inheresin the processby whichholdingsare
obtainedand is contentwithwhateverdistribution resultsfromthatpro-

430
Review Essay

cess. In contrast,most theoriesof distributive justice,includingRawls's


as well as the utilitarians', ignorethe processby whichholdingsare ob-
tained,and attendonly to the end distribution. Nozick calls these"end-
result"theoriesand contraststhemto "historical"theories(what I have
termedprocessabove), of whichhis entitlement principlesconstitutean
example,as does Locke's theoryof property.
Nozickpointsout thatany end-result conceptionof distributivejustice,
if embodiedin law,giveseach citizenan enforceable claimto someportion
of the totalsocial product,regardlessof who currently holds thatproduct
or how theycame to hold it. This right,as he argues,is equivalentto
appropriating the actionsof otherpersons,and therefore, equivalentto
acquiring"part-ownership" of othercitizens.Thus Nozick presentsa dis-
mal pictureof the positionof a citizen in the modernredistributive
state,thatof partialslave to a many-headed master,the state.
It is in his refutation of end-resulttheoriesof distributive justicethat
Nozickis at his best.He showsthatany particularsystemof distribution
of holdings(such as distribution of income) based on end-resulttheory
can be immediately upsetby theexerciseof choice,not onlyby thosewho
are well-off in thedistribution but also by thosewhoare worseoff.An illus-
trationis hisWiltChamberlain example:If Chamberlain contractswiththe
ownerof his team to get 25 cents foreach home-gameticketsold, and
thereare a millioncustomers, he endsup with$250,000fortheyear; this
will thendestroyany patternof holdingsthatlimitsinequality,unlessa
largeportionof the $250,000is expropriated fromChamberlainand redis-
tributedto personslike thosewho freelychose to givehim theirquarters.
But is not Chamberlainentitledto thisincome?Each of a millionpersons
chose to spendhis moneyon Chamberlain.Is thisunjust?Nozick argues
thatit is notunjust,becausetheincomewas acquiredthrougha just pro-
cess. Most end-result theoriesof distributivejusticewouldarguethatit is
unjust,because thisincomeis so muchgreaterthanthe averagewhen,in
fact,somehave notenoughto eat. The example,of course,is onlya special
case of theverysimplepointthatany operationof a marketprocess,with
exerciseof freechoice,is quite capable of producing, frommethodsof dis-
tributionthat appear "just," distributions of holdingsthat will appear
"unjust,"if justiceis measuredby the inequalityof holdings.Thus there
are onlytwoavenuesopen: to restrictthe freechoicesof personsin their
transactions, eitherby directconstraints or by partialexpropriationof the
result,or to refuseto measurethe "justice" of a distribution of holdings
in thisway. Nozick choosesthissecondpath, arguingthat the firstcon-
stitutesa violationof individualrightsof the most fundamentalsort:
expropriation by othersof a portionof oneself.
AlthoughRawls's theoryof distributive justicedoes not specifya par-
ticulardistribution of holdings,it does,as Nozick shows,entailexpropria-

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AmericanJournalof Sociology
tionby thestateof theproductof the best offforthe benefitof theleast
well-off.There is no incentive,accordingto Nozick, for the well-off to
participatein a "Rawls-just"society.
Rawls would arguethat thisis of no import,because rationalpersons,
fromthe "originalposition"in whichtheyare ignorantof whetherthey
are to be well-or badlyoffin thefuture,wouldchoosea set of institutions
thatattendedonlyto theirwelfarewhentheywereworstoff.They would,
in game-theoretic terms,chooseaccordingto a minimaxprinciple.Rawls
wouldargue that thereis no violationof rightsat all in his just society,
sincein theoriginalposition,each personfreelychose to be governedby
thatset of institutions-that is, choseto have a portionof his selfexpro-
priatedif he becomeswell-off in returnfora similarclaimon othersif he
becomesone of theworstoff.
To counterthisargument, Nozick mustattackdirectlyRawls's notion
of theformthesocialcontracttakesfromtheoriginalpositionof ignorance,
and he does so (pp. 198 ff.).But herehe is less successful,and thislack
is the key to the major deficiency in Nozick-a deficiency which,as we
willsee, is greatindeed.
First,Nozickarguesthat"a procedurethatfoundsprinciplesof distrib-
utivejusticeon whatrationalpersonswhoknownothingabout themselves
or theirhistorieswould agree to guaranteesthat end-stateprinciplesof
justicewill be takenas fundamental"(p. 198, emphasisin original).He
further triesto imaginetheprobabilitycalculationthatcouldlead rational
personsto arriveat some historical-entitlement principle,and concludes
that"theircalculationswill not lead themto selectthe entitlement prin-
ciple" (p. 201).
But theseconclusionsstem froma too-narrow view of what kinds of
choicesrationalpersonscan make in the originalposition,thatis, behind
a veil of ignorance.Nozick's view mighthave been broadenedby some
attentionto the way actual personshave acted in creatingconstitutions
(whichis the closestreal-worldapproximation to a social contractfrom
an originalposition). Rawls made the same error(see Coleman 1974a,
1976) whenhe concludedthatrationalpersonswouldchoosehis twoprin-
ciplesby whichto be governed.
Nozick'snarrowviewof the choicesavailable to personsin the original
positionis evidencedby an examplehe introduces to buttresshis argument
thattheentitlement wouldnotbe used by personsin theoriginal
principles
position.The exampleis this: There is "a groupof studentswho have
studiedduringtheyear,takenexaminations, and receivedgradesbetween
0 and 100 whichtheyhave notyetlearnedof. They are nowgatheredto-
gether,havingno idea of the grade any one of themhas received,and
theyare asked to allocate grades amongthemselvesso that the grades

432
Review Essay

totalto a givensum (whichis determined by the sum of the gradesthey


actuallyhave receivedfromthe teacher)" (p. 199, emphasisadded).
Now we willdisregardthefactthatto conform to the"originalposition"
model,the choiceshouldbe made at the outsetof the course,ratherthan
afterexamination.The crucialpointis that Nozick has a narrowchoice
forcedupon thestudents.They have no opportunity to choosenot to have
collectiveauthority overthegradesof each. They are notgiventhechance
to decidehowto allocatetherightswhich,takentogether, determine grades.
If theywere,it is quitelikelythattheywouldagreeto something like this:
thateach shouldhave individuallytherightto showwhathe had learned,
throughsomeperformance at the end of the course,and thatthe rightto
attachscoresto theseperformances shouldbe heldby an outsider,suchas
the teacheror anotherobserver.2
Nozick has forcedthe conclusionwhichhe wants: in his examplehe
has giventhestudentscollectiveauthority withouttheirindividualassent.
Thus he would,just like the distributive justice theoristswhoseworkhe
correctly dismantles,takeaway individualrightsratherthanallowa social
contractto determine whatrightswillbe individually retainedand howthe
otherrightswillbe allocated.
Both Rawls and Nozick assumethat rationalpersonsbehinda veil of
ignorancewill choose how the social product (or individualproducts,
sociallyexpropriated)is to be dividedup (for Nozick, see pp. 198 ff.,
especiallythe footnote on p. 199; forRawls,see [1971], p. 12). But why
should that be? Is therenot a priorquestionwhich,whendecided,will
dictatefortheserationalpersonswhatdistributions of holdingswillresult?
That priorquestion,of course,is the fundamental questionof the social
contract:what rightswillpeople agreeto give up to the collectivity(and
whatmechanisms of representation, etc.,will theyuse to help insurethat
thoserightsare used in some correspondence to the aggregation of their
individualwills), and what rightswill theyreserveto themselves as indi-
viduals? Now some contracttheorists, like Rousseau,have specifiedthat
all rightsare to be held collectively,noneindividually, and it is thisthat
makesRousseauin effectthe fatherof themoderntotalitarian state.3But
others,like Locke, are verycarefulabout specifying the rightsto be held
collectively.
If rationalpersonsin the originalpositionbehinda veil of ignorance

2I will not here go into the question of just why this would be rational except to
observe that if a studenthas an interestnot only in the grade but in learningsome-
thing,he will attemptto choose an allocation of rightsthat will increasehis learning.
Allocation of rights of performanceto himselfindividually,on the basis of which
performancean outside observerwill judge, would constitutean incentiveto learn.
3 See Talmon (1952) for a developmentof this point.

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AmericanJournalof Sociology

act as I have suggested,decidingwhichrightsto hold collectivelyand


whichto retainforindividualuse (and thisis close to whatwe findactual
personsdo in the construction theydo not decide how
of constitutions:
the social productis to be dividedup), thenit is quite likelythat some-
thingwith a structureclose to that of Nozick's entitlement theorywill
result.Whydo I say thatrationalpersonswouldact in thisway? Because
theirverydecisionto come togetherto forma compactis a decisionby
each thathe willbe betteroffby poolingcertainof his rightsand resources
with thoseof others,to be used collectively(e.g., forcommondefense)
than by reservingthemall to himselfforindividualuse. Thus he must
decidewhichof his rightsit is in his interestto giveover to collectiveuse
(and withwhatinstitutional safeguards),and whichof his rightsit is in
his interestto reserveforindividualuse.4 This decisiondependson the
expecteddistribution of eventsof twokinds.Firstare eventsin whichthe
added benefitsto himof jointuse of resourcesoutweighthepotentialcost
of the resourcesbeingused in a directionthatis againsthis will; second
are eventsforwhichthisis notso. Eventsof thefirsttypeare betterfaced
withpooled rightsand resources,those of the second,with individually
held ones (see Coleman1971, 1970a, 1973). Clearly,such a decisioncan
be made rationally, if one has an expecteddistributionof thesetwokinds
of eventsand the expectedconsequencesof each eventforhim. Roughly,
themoreeventsof the firstkindone expects,and the moreconsequential
each is expectedto be, the morerightsand resourceshe will give up to
collectiveuse.
Now once a set of rationalpersonsbehinda veil of ignorancehas made
such a social contract,such a constitutional choice,theyare precludedby
thatdecisionitselffrommakingfurther choicesof thesortthatbothRawls
and Nozick assume,thatis, choicesabout how the "social product"is to
be dividedup. If, in the set of rightsreservedforindividualuse, thereis
fullentitlement to theproductof one's labor (Nozick's justicein acquisi-
tion) and fullentitlement to theholdingsone receivesfromthe voluntary
actionsof others(as in a giftor exchange),then Nozick's entitlement
theoryfollowsdirectly.Onlyif fullrightsto all resourcesare givenup in
the originalposition(as Rousseau assumesexplicitly, and Rawls, implic-
itly) is it possibleto proceedas Rawls does,or as does any theoristof dis-
tributionjustice who specifiesa particularend-resultdistribution.So
Nozick is rightthat Rawls's difference principlewould not resultfrom
4 A somewhat more sophisticatedsocial contractwill also specifya process by which,
as events confrontingfellow-contractors change, they can change their allocation of
rightsbetween individual and collectiveuse (not merelyto increasethe latter,but to
decrease it as well, when desirable to do so). Most political systemsand the consti-
tutionsthat underliethem are very poor in theircapacity for such change. See Cole-
man (1966, 1970b, 1974a, 1976), for suggestionsof more flexiblesystems,including
the "multiple-contract theory" (discussed in the last two citations).

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Review Essay

rationalpersonsbehinda veil of ignorance-buthe is quite wrongthat


no principleof distributive justicethatspecifiedtheprocess,or how those
holdingscame to be (such as his entitlement theory),could be chosen.
Indeed,it is only such principlesthat could be chosen,because rational
personsin the originalpositionwouldspecifyan allocationof theirrights
betweenindividualand collectiveuse-and thisallocationwoulddetermine
whatindividualswereentitledto do qua individuals,and whatthecentral
collectivewas entitledto do to modifythe resultsof those individual
actions.We may in factpressNozick a littlemoredirectly,and ask just
howhe wouldexpecthis entitlement principlesto arisein a society.Even
thoughwe begin withindividualrights,the entitlement principlesmust
be jointlyenacted,or sociallyagreedto be legitimate;and how does that
legitimacy comeabout? Throughsomething like a contractamongrational
personsbehinda veil of ignorance.That is, because the entitlement prin-
ciplesin use in a societyinvolvenotonlycertainindividualrights,but also
the social legitimation or acknowledgment of thoserights,theycan arise
only fromsomethinglike a social contractin whichall personsdecide
whichof theirindividualrightsare to be givenup to the collectiveand
whichare to be held individually.
But if thatis so, thenwhycannotthoserationalpersonsmake a some-
what different allocationthan that of full entitlement to the productof
one's labor? WhyshouldI not,forexample,agreeto provide,via a small
taxwhenI am notdestitute, someinsurancein case I becomethrough some
misfortune destitute?5Many ancientsocietieshad somesucharrangement.

5 Nozick has, I believe, a fundamentaldisagreementwith the idea that constitutional


choice occurs behind a veil of ignorance about one's futureposition. Nozick would
argue that everyone has some knowledge of his futureposition. He argues that if
persons are to be regardedas beginningwith a set of natural rights,then theoretical
consistencydoes not permit arbitrarilydeprivingthem of those rightsby assuming
thereis a veil of ignorancewhen they make a constitutionalchoice. Thus, accordingto
Nozick, if a social contractwere to be made, it could only be made by a set of persons
(differentially)naturallyendowed, and each could anticipate,because of his endow-
ments,just what position in society he would come to occupy. But the veil of ig-
norance is, as I see it, a fictionwhich,though never wholly realizable,is nevertheless
theoreticallyuseful.It is an ingeniousdevice for translatinginterpersonalcomparisons
of utility,and attendant interpersonalconflictsof interest,into intrapersonalcom-
parisons of utility,with the attendantintrapersonalbalancing of interestsamong dif-
ferentsituationsin which one may find oneself. If persons were not behind a veil
of ignoranceas to their futurepositions in the society, then those who knew they
would have control of the state apparatus would favor more power for the state,
while the disenfranchisedwould favor less; the rich would favor full entitlementto
the fruitsof one's labor, while the poor would favor a tax upon the rich. Thus with-
out the veil of ignorance,rational self-interested persons would be embroiledin an
unresolvableconflictwith one another. But with the veil of ignorance,ideally, each
person sees himselfas potentiallyin all these possible positions,and makes the deci-
sion taking into account each of the differentstandpoints.Thus although we begin
with selfishpersons,we arrive at a contractby unanimousconsentwhich is equitable
for all, whateverposition they mightfindthemselvesin. For the theoristsof distrib-

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AmericanJournalof Sociology
In Judaiclaw, forexample,thewidowsand strangers wereentitledto the
grainleftat the edge of the fieldduringthe harvest.Would it not be ra-
tional fora personin the originalpositionto agree that a certainsmall
portionof the individualproductsto whichhe is entitledbe takenaway
fromhim,be subject to collectiverights,and be reservedforuse of the
destitute(i.e., forhimselfwhenhe mightbe destitute, sinceby hypothesis,
he is actingnot out of concernforothersbut onlyhis own self-interest)?
The amountto be thusset aside, thatis, the amountto be collectively
held,or the amountof incursionthatsuch a personwould allow intohis
individualentitlement, woulddependon how muchhe felthis entitlement
mightvarywithgood timesand bad. But theamountis not of concernin
our assessmentof Nozick,foronce we have establishedtheprinciple,once
we have let thecamel'snose underthetent,thenNozick's fullentitlement
theoryno longerholdsa specialplace. It is merelythe (unlikely)case in
whichrationalpersonsbehinda veil of ignoranceagree to hold all their
rightsindividuallyand not to relinquishany to the collectivity forinsur-
ance againsttimeof need.
This does not necessarilymean thatrationalpersonswouldso empower
thestate (definedas the monopolist overmeansof coercion).They might
well preferto so empowera different agency(e.g., an insuranceagency),
eitherone whoseratesare progressive(Social Securityor unemployment
insurance)or nonprogressive (privateinsuranceor Blue Cross). But that
is anotherquestion,whichwe can leave aside. What is worthpursuing,
however,is some understanding of just what wouldlead rationalpersons
to allocategreaterportionsof theirrightsto the state or anotheragency
forcollectiveuse.
Firstand mostobvious,of course,is the existenceof collectivethreats,
whetherfromthe naturalenvironment or externalenemies.Eskimostreat
of
many their resources
collectivelyduring wintermonths;similarlythe
Essenes who lived in the desertby the Dead Sea 2,000 years ago main-
tained a largely communalexistence. Modern Zionists,resettlingthe
agriculturallands of Palestine,createdcollective kibbutzim and coopera-
tivemoshavimto confront boththenaturaland humanenvironment. Inso-
faras therecan be a reallocation timeswithina state,
of rightsat different
we repeatedlysee the same thing: in time of war, citizensvoluntarily
submitthemselvesto greatercentraldirectionand greatertaxationthan
at timeof peace.

utive justice like Rawls, the veil of ignoranceis a device for weighingthe utilityof
goods to a person when he is well offagainst their utilitywhen he is badly off.For
a correctformof social contract,such as I have outlined above, in which rightsare
allocated to the collectivityor reservedto oneself,it is a device forweighingthe utility
to be expectedfromhaving a combinedand powerfulset of rightsused in one's behalf
(or possibly against one) versus the utilityto be expected fromhaving only individ-
ual rights,less powerfulbut certainlydirectedas one wills.

436
Review Essay

Somewhatmoresubtleis thedifference betweena largelyagrarianecon-


omyand an industrialone. In an agrariansubsistenceeconomy,mostof a
person'sessentialneedsare directlysatisfiedby his own efforts: he grows
mostofhis ownfoodstuffs and buildshis ownshelter.Thereare good times
and bad, buttheyvaryin continuous gradation,forthereis nottheconcept
of a "full-time job." In an industrialeconomy, mostof a person'sessentials
are providedby exchangeusingmoneyobtainedfromhis labor (in a "full-
timejob"). In good times,he has a job, in bad timeshe does not.He can-
not subsistby thedirectfruitsof his ownlaborin the absenceof the job,
but mustreceiveaid fromsomesource,or migrateto a place wherehe can
subsist.In addition,theinterdependence of theeconomysuggeststhatbad
timeswouldbe likelyto hitmanypersonsat once,and one personwouldbe
less likelyto be able to fall back on resourcesheld by othersespecially
close to him.
Thus it is reasonableto expectthat rationalpersonsuncertainof their
own position,but knowingthe characterof the economy,would agree to
reservea largerportionof theirproductforinsuranceif theireconomy
were an industrialand highlyinterdependent one than if it were one of
agriculturalsubsistence;theycould agree to a largertax (and perhaps
even a more progressiveone). Furthermore, this rationalallocationof
resourcesforcollectiveuse wouldcarrywithit therightto use theresources
not merelyfor commondefensebut for redistribution to the needy or
destitute-justas, in a smallerway, the grainat the edge of the fieldin
ancientIsrael was leftforredistribution to theneedy,not forcommonuse.
Thus it is quitepossibleto go beyondNozick'sminimalstateif we begin
withindividualseach holdingindividualrights,simplybecauseit comesto
be in the interestof thosepersonsnot only to sociallycooperate,but to
engagein a socialcontractin whichtheyallocatecertainof theirindividual
rightsto a centralagencyforcollectiveuse. This couldthen,of course,lead
to a sense of fullcomplacency, as withDr. Pangloss: it is so because it
mustbe so, and we live in the best of all possibleworlds.That is, the
rightsheldcollectively by thestatewerevoluntarily vestedin thestateby
its citizens,and thusthere is no excessof power held by thestate-at least,
if the state came into being througha constitutional agreementor other
kind of generalassentamonga wide fractionof its members.Whatever
rights(i.e., power)it holds,it holdsjustly,becauseit acquiredtheserights
througha just process.This is the line of argumentone could followin
justifying whateverpowersthe state mighthave, following Nozick's prin-
ciple of justicein acquisition,and recognizing the stateas an actorin the
same way thatany personis.
Such complacencyabout the rightsheld by the state is, however,mis-
placed foranotherreason.To explainit, I mustdigressfora momentto
discussin somewhatmoredetailNozick'sentitlement theory.Nozick does

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not specifywhat constitutesjustice in acquisitionor justice in transfer,
exceptfora shortdiscussionof a provisoby Locke thatacquisitionby one
personleave "enoughand as goodin commonforothers."Yet whatseems
likea simpleprinciple(forbothacquisitionand transfer can be reasonably
subsumedundera singleheading)maynotbe so simpleundercloseinspec-
tion.For what enablesa personto acquire resourcesor goods or assets?
It is, of course,the assetshe alreadyhas. In the firstinstance,theseare
natural("inalienable") assetssuchas abilities,skills,and personality.But
an asset gainedcan, if not consumed,be employedto gain further assets.
This is mostevidentwithmoneywhich,throughtheinterestit earns,sub-
stitutesforlabor.Is therea difference betweenthejusticeof the $250,000
a Wilt Chamberlainearns fromfans' voluntarypaymentsto watchhim
perform, and of the$25,000thatthat$250,000earnseach year?The sub-
sequent$25,000per yearalso comesfromvoluntarytransfers fromothers
fortherightto use the $250,000,so it wouldappear to be, on thesurface,
an equallyjust acquisition.But if so, is thejusticeindependent of therate
of interest?6Whataboutloans in theghetto,withratesof interestas high
as 100%oper weekor month?These are market-established rates,forthe
borrowers cannotget loans at any interestrate fromothersources.7And
whatabout the factthatlargeholdingsof moneyare able to earn higher
ratesof returnthansmallholdings?
Nozickwouldargue,I believe,thatany marketprocess,sinceit is based
on voluntaryactionsby bothpartiesto an exchange,is just, independent
of the marketprices.But thereare problemswiththisbecause of imper-
fectionsin the market,and it appears likelythat some provisosuch as
Locke's wouldbe necessary(and withthisI believeNozickwouldagree)
to excludemarketsin whichone partyto an exchangeis able to restrict
the opportunities or choicesof the other.
But nowwe are led into a wholethicketof problemsof specifying the
conditions underwhichmarketprocessesare just.These problemsare com-
pounded,fromthepointof viewof justice,by theadditionalfactthat,as
I have statedabove,assetsbegetnew assets.This is trueof moneyand it
is trueof othertypesof resourcesas well.For example,theholdingof con-
trolofcommunications, whetherby blanketadvertising or by actualcontrol
of a communication medium,can shape others'choicesand garnernew
rightsor resourcesforthe holder.Are such new rightsor resourcesjustly
obtained?In the era of the massiveexpansionof Americancapitalism,

6 The existenceof usury laws in most societies,modern and ancient,shows the am-
bivalence about the justice of interest,and of allowing the market to establish rates
of interest.
7 An even sharper question is that of justice when various extrememethods, short
of violence, are used to enforce payment and are known to the borrower before
borrowing.

438
Review Essay

whencorporations held greatpowervis-a-vistheirworkers(and vis-a-vis


theirownersas well), were the processesof acquisitionof new holdings
just (excludingthosecases in whichillegalcoercionwas used)?
Withall this in mind,we mustrecognizealso that individualsare not
theonlyactorsin modernsociety,but thatsocietyis populatedby intangi-
ble corporateactorsas well.8Some are businesscorporations, some are
trade unions,some are other types of corporateactors; an especially
prominentone is the state. Just as individualshave rightsand acquire
holdings,corporateactors do so as well, except that corporateactors
initiallycome into being only throughindividuals'vestingof certain
rightsand resourcesin them.And the state has certainspecial rights
vestedin it, includingthe monopolyof forcewithinits boundaries.
Now we may returnto the questionof collectiverightsheld by the
state.Did thestateas a corporateactoracquireall of its rightsby a just
process?We can ask this questionwithouthaving fullyansweredthe
questionof what is a just processof acquisition; all that is needed is
the recognition that the existenceof greatand concentrated resourceson
the part of one actor can distortthe choicesmade by otheractorswith
whichit has transactions.If thereare any processesof acquisitionof
holdings(rightsand resources)shortof coercionthatare not just, either
accordingto thedefinition of justicein acquisitionin Nozick'sentitlement
theoryor to a similarprinciplearrivedat amongindividualsin the social
contractthroughwhichtheyformedthe state,thenit appearslikelythat
thoseused by thestateto augmentits powerswouldbe amongsuchunjust
processes.
Thus thestate,as a corporateactor,is in a veryspecialand advantaged
positionin its relationto individualswho have, throughsomething like a
socialcontract, vestedcertainof theirrightsin it. It is in a positionto use
thoserightsas resourcesin acquiringmorerights.RobertMichels (1949),
examiningthis processin a muchweakercorporateactor (weaker than
Nozick's minimalstate), the GermanSocial DemocraticParty,labeled it
the "ironlaw of oligarchy."A. A. Berle and GardinerMeans (1940) ex-
aminedthesameprocessforcorporations and termedit the "separationof
ownership and control."9The meansby whichthesecorporateactors,and
even more,the state, use to augmentand consolidatetheirpower (i.e.,
theirrights)are several,and theyare enhancedby twoconditions:(1) the
fragmentation and disorganization of the ordinarymembersor citizensin

8 See Coleman (1974b) for an elaboration of this notion and a discussion of the
emergenceof the modern corporate actor in society.
9 This has been a more importantinstrumentof the state on the Continentthan in
English law, where the device of trustsgave a shield of protectionfrom the state,
firstto the Nonconformistand Catholic churches,and subsequentlyto business ven-
tures. See Maitland (1904).

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AmericanJournalof Sociology
contrastto thehighdegreeof organization and mobilizationof thosewho
controlthe centralstate apparatus,and (2) suboptimallevels of activity
in oppositionto thosein controldue to a "free-rider" problem(i.e., we
willwinor lose withor withoutmyefforts, whichare a dropin thebucket,
so I'll sit on thesidelines).The meansat thedisposalof thestateinclude
(1) controlof, or at least greateraccess to, means of communication;
(2) speciallegal rightsassociatedwithits positionas the corporateactor
controlling the chartersof othercorporateactorsand the associationof
personswho mightcollectivelyoppose the state's acquisitionof further
rights;and (3) the capacity,whenactingin the name of certainactors,
to abrogatethe rightsof others.10
As is clear fromthiscatalogof favorableconditionsand special means
at the disposalof the state,it can acquire and accumulatecentrallyheld
rightsin waysthatany reasonableprincipleof justicein acquisitionwould
classifyas unjustif used by an actorwithinthestate.Few wouldquestion
such a conclusionwhenappliedto certainstates,particularly thoseprac-
ticingstatesocialism(the Communist states) or nationalsocialism(Nazi
Germany),forin thosestates,the initialholdingof rightsby the central
state apparatus is especiallygreat and remainingindividualrightsare
easilyabrogated.But the conclusionholds forall states.Unless thereare
somemeansforopposingor neutralizing thespecialstatepowers,thestate
willcomeovertimeto have an unjustaccumulation of rightsand resources,
to thedetriment of its citizens.
The programforpoliticalphilosophy, then,is not merelyto determine
whatis a just allocationofrightsand resources(amongpersons,or between
personsand the state), as Nozick and Rawls have attemptedto do, but,
recognizing that a state can always acquire additionalrightsunjustly,to
findways to limitthe state'scapabilityfordoingso. It is not enoughto
arguefora minimalstate,as Nozickhas done; it is necessaryto showhow
ordinarypersonscan preventa minimalstate frombecominga maximal
one. One way of doingthisis to developin detail a theoryof justicein
acquisitionand justicein transfer. Such a theorywouldprovidethe basis
forconstraining theprocessesby whichan individualor a corporateactor
(in particular, thestate) can justlyacquireholdings,includingrightsthem-
selves.
But thisis not merelya programforpoliticalphilosophy:to see it in

10 Examplesof thisare actingin the nameof themajority


to abrogatethe rightsof
Jehovah'sWitnessesor otherminorities;in the name of the disadvantaged, to
commandthe centralresourcesnecessaryfor a Rawls-justredistribution; in the
nameof disadvantaged to reducethe rightsof employers
minorities, to hireand fire
on the basis of merit;in the nameof thosewho drivetractorson hills,to require
thosewho drivetractors on onlyflatgroundto acquirerollbars; and in thenameof
thosewholivein largecities,to requirethosewho driveonlyin smalltownsand the
countryto pay foremission-controldeviceson theircars.

440
Review Essay
that way is to cast offfromthe shouldersof sociologya task whichis
centralto its mission-the task of discovering how a societycan govern
itselfwhilemaintainingthe delicatebalance betweenthe individualand
the society,betweenrightsindividuallyheld and rightsheld collectively.
Suppose for a momentthat this balance were static,independentof
social conditions(thoughit is not). Then to maintainit would require
special structures whichpreventa movementeithertowardanarchy(i.e.,
a withdrawal of all collectively
heldrights),or towardan omnipotent state
(i.e., a forfeitureof all individualrights).If myconjecturesabove are cor-
rect,concerningthe special powersof corporateactors,and particularly
states,to accumulaterightsthat formerly wereheld by individuals,then
the major dangerto the delicatebalance in an establishedsocietylies in
the accumulationof powersin the hands of centralauthorities, primarily
thestatebut also lessercorporateactors.Thus a major task forsociology
is preciselythe discoveryof the processesby whichcorporateactorsare
able to amassrightsand destroythebalancebetweenindividually held and
collectivelyheld rights.The above description of processes,such as "the
fragmentation amongindividualscomparedto theorganization ofthestate"
and "the controlof meansof communication," are merelysurfacedescrip-
tionsof phenomenathatrequireextensivesociologicalinvestigation. What
are themeansby whichthe state (or anothercorporatebody) can use its
greaterorganizationto acquire furtherrightsfromindividuals?What
structure of controlof communication in a societybestprotectsbothrights
individually heldand thosecollectively held?Whatsocialor politicalstruc-
turebestinsuresthecontinuedpossibility of bringing together individually
held rightsand resourcesto oppose thosewho hold positionsof central
authority?
And in additionto the processesby whichcorporateactors (and espe-
cially the state) acquirepower,thereare the processesby whichpersons
withdrawlegitimacy fromsuch a body,destroying its powerto act. These
also requireinvestigation. For example,just as controlof the means of
communication by the state gives it the capabilityof amassinggreater
rightsand powersforitself,that controlof communication by another
corporateactoror actorscan aid in destroying the state's legitimacy.It
may also be thatthe two sets of processesare partlyboundup together:
forinstance,thatone cause of thewithdrawal of legitimacyfromthestate
is the exerciseof powerby the state beyondthe pointthathad been its
traditionallimit.
These are not problemscommonlyaddressedin sociologicalresearch,
fortheyare macrosociological problemswhichare difficult to investigate.
Theyare notwhollyresistantto examination at levelsbelowthatof society
(forexample,manyof themare exhibitedin largeorganizations whichare
nominallysubjectto self-government, suchas tradeunions),but theycan-

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AmericanJournalof Sociology

not be studiedat the interpersonal level.Also, theyare not easilystudied


as macrosociologicalresultantsofmicrosociological processes,suchas demo-
graphicmovement, occupationalmobility,and educationalattainment.
The politicaland moralphilosophers, fromRousseauand Locke to Rawls
and Nozick, addressthe normativequestionsof the appropriatebalance
betweenlibertyand equalityin society,the balance betweenindividually
and collectivelyheld rights;it is thetaskof sociologyto discoverthepro-
cessesthataffectthisbalance; thisknowledgecan allow a societyto arrive
at a normativeconsensusand maintainthe normatively specifiedbalance.
In themeantime, whatcan we say forNozick? I thinkwe can say that
his book is an enormously important contribution to the richand rapidly
changingfieldof moraland politicalphilosophy.I don'tbelieveNozick is
correct,but he's less incorrect, I believe,than thosewho have preceded
him.

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