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American Journal of Sociology.
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Individual Rights and the State:
A Review Essay
429
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430
Review Essay
431
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
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.
433
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434
Review Essay
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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
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AmericanJournalof Sociology
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
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).
439
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
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-
441
AmericanJournalof Sociology
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Coleman, James S. 1966. "Individual Interestsand Collective Action." Pp. 49-62 in
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