Nozick’s ‘entitlement justice’

The major thrust of Nozick’s argument focuses on the issue of property. According to him, any theory of property must be based on three principles: a principle of justice in initial acquisition (to explain how an individual came to be the first appropriator of a good from nature), a principle of justice in transfer and a principle of justice in rectification (for example, compensation to the victims of crime). How does one reconcile unfettered acquisition of property with liberty? One man’s property (even if justly acquired) may be another man’s restriction of liberty. The 19th-century philosopher Herbert Spencer likened this to the propertyless not having any space to even put his feet on the ground. In his view, therefore, the proper exercise of liberty requires state control of resources and introduces some notion of fair distribution.

However, ‘fair’ does not mean ‘equal’, or even ‘identical’. This view, where the state controls and allocates resources, resembles not so much the view of the state, but the communist: a political theory that spectacularly failed. However, Nozick’s views seem to have had more political appeal and success than Rawls’, in terms of practice, even in regimes with strong welfare structures such as our own. Nozick is a strong critic of state interference in the lives of individuals, especially in the context of property: let us see how this tension between the individual and the state plays out if one equates health as a good (or commodity) and hence as property.

Let health = property

The state can argue that it has an interest in the health of its citizens, and therefore a ‘right’ to interfere or even coerce. But what are the proper limits of state coercion? We each have claims to absolute rights to life and liberty, in the sense that no one may justifiably interfere with another’s life or liberty, except in cases of self-defence or legitimate punishment. But these are negative rights of non-interference, not positive rights to aid or assistance from others or the state (Reference Berlin, Hardy and HausherBerlin, 1958). Right to property, on the other hand, can be said to be a positive right and hence can attract legitimate state intervention, but only to safeguard it. But is the state’s right to intervene more persuasive if the state is also the provider? This is where the whole rationing problem in socialised medicine links directly with the Rawlsian theory of distributive justice. This is, of course, an oversimplification and this link is not without major caveats. But Rawls does not offer an analysis of how to deal with parity of services and goods, which is a key issue in mental health.

In Nozick’s view, the state is justified to use coercion only to protect people against force, fraud and theft, and to enforce contracts. Thus, it exists to safeguard rights, and the state itself violates people’s rights if it attempts to do any more than this. This minimalist state (which Nozick calls the night watchman state) is distinguished by what it is not permitted to do, rather than what it does. We know that all modern states include these functions of the minimal state but when the state goes beyond this, it acts, according to this theory, without justification. The welfare roles such as a central bank, public works, education and health, which many will assume to be the proper tasks of government, will be the responsibility of private individuals or firms, for the sake of profit or out of public spirit.

Of course, this will lead to a different type of problem: the problem that a minority of people will be left behind, or excluded from goods and services. In Nozick’s view this is not a real worry because ‘whatever arises out of a just situation by just steps is itself just’ (Reference NozickNozick, 2001: p. 151); even if there is suffering. This sounds unappealing to liberal ears, but the realities of communism (described memorably as a ‘society beyond justice’ by Reference TuckerTucker, 1969), where everyone gets something, but not necessarily anything they want, should give us pause.

Balancing the locus of control

So where is the balance? How does one reconcile the communist vision of state control over individuals for their own good with the realities of a modern, democratic state, in which, arguably, tension and conflict between both individuals and the state are seen as healthy? Despite being embraced by both the politically left and the right, Rawls does not provide an answer. He does say that his theory of justice assumes a definite limit on the strength of social and altruistic motivation, and also supposes that individuals and groups put forward competing claims. Although willing to act justly, they are not prepared to abandon their interests, although Rawls assumes that there is the spontaneous coherence between the aims and wants of individuals with the ideal good. Sadly, he doesn’t pursue these questions further. His theory of justice, in terms of property, therefore seems to me unworkable.

The reality of autonomy

I am not convinced by Ikkos et al that ‘citizenship’ means the same for everyone, nor that it is a concept that will be helpful in addressing injustice in mental health practice. How then should we treat those with compromised autonomy? I think that here the Kantian distinction between acting out of duty and acting in accordance with duty (with one’s inclinations) becomes important. For Kant, an action has moral worth only if one freely chooses to do it. Nozick argues that if we impose the duty of beneficence, we take away the choice to act in charity. We then act out of duty, but not in accordance with duty. Consequently, the act is not a moral act. Thus, if the state interferes to make us act beneficently (be it in regulating, allocating or transferring wealth and health), it reduces a noble act to an amoral one (and, in my view, to nothing more than theft).

Now consider the additional difficulty when one is faced with the possibility of less than full autonomy, as one would frequently encounter in psychiatry. One can argue that full autonomy is not possible (even if desirable), since one cannot be autonomous, yet be under any sort of state control. In mental illness, autonomy can be thought of as chronically compromised because of the various day-to-day issues over which even the otherwise autonomous patient has no control. Reference AgichAgich (1993) has described this as a state of ‘interstitial autonomy’. It is unclear how Rawls’s theory of justice will fit in with the reality of autonomy in this context.

Rawls’s weighing principles give absolute precedence to liberty (Ikkos et al, this issue: p. 204) and are thus the distinguishing feature of his ‘contractarian’ theory. Because absolute liberty is not guaranteed in modern democratic society, Rawls’s theory remains just that, a theory. Ikkos et al’s article is, however, a reminder that philosophical theorists of all persuasions remain a vital resource for clinical and academic psychiatric practice.