N O Z I C K , T A X A T I O N A N D T H E W I L T C H A M B E R L A I N E X A M P L E

1 . INTROD UCTION

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 proviso1 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

1 ‘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 Locke’s 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.).

not get involved in redistributive policies, since

taxation (understood as forced redistribution of

property) violates people’s rights. In the present

paper I will focus on this conclusion of Nozick’s

theory, and evaluate the main intuitive argument

used to support it: the Wilt Chamberlain example.

2. THE WILT CHAMBERLAIN EXAMPLE

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

anything2, 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

2 This is so since it is almost impossible for these conditions to hold in any case of private property.

3 See Lyons (1981).

pattern of distribution4. Nozick, however, wants to

show that end-state principles are unjust since they

cannot be maintained except by going against

people’s choices (and hence by force), and from this

point argues that we should accept his theory as the

only suitable alternative.

Nozick’s intuitive argument (1974:161-2) asks

us to consider a society conforming to the reader’s

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

Chamberlain becomes considerably richer, and the

pattern is disturbed (D2 results). Redressing the

imbalance would mean going against people’s

liberty, since they voluntarily gave the money to

Wilt Chamberlain, and if a state were to redistribute

4 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.

Wilt’s wealth, it would be violating people’s 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

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principles, and that ceteris paribus, the members of

the society want to maintain the pattern5.

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

5 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.

distribution, the discrepancy will be redressed’6, or

else Wilt Chamberlain’s 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

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, you’ll see very little of the extra money you’ll find in your money boxes’.

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a meta-level using a situation (Wilts’ contract) of

which those very principles constitute the

conditions of possibility. Nozick’s 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. OTHER CRITIQUES OF THE WILT

CHAMBERLAIN EXAMPLE

One may reply that in some patterned

distributions, a contract of this sort may be

conceivable and permissible (hence Nozick’s

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

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

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, Nozick’s 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

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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. TAX ATION AND RIGHTS

Nozick’s point is not really one against

redistribution or patterns, since people in a

Nozickian state may agree to voluntarily

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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

forces7 that could ‘threaten’ to let you die of hunger

(by boycotting your products) if you do not, say,

give money to charity): Nozick doesn’t 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

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

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 naïve to conceive markets where such forces are absent, markets considered as chaotic agglomerations of individual interests with no moral import.

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

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

Nozick’s 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.

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.

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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, Nozick’s understanding of

‘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

Nozick’s 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.

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.

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