A brief note: last week I attributed an article from the website Deadline to the website Deadspin. I apologize for this error.
I recently finished reading both John Rawls’ A Theory of Justice and Robert Nozick’s Anarchy, State, and Utopia. Because the two works are often seen to be in communication with one another (Anarchy, State, and Utopia is seen as a response to Rawls’ work), I thought it would be interesting to highlight some issues raised in the works. Again, I am not a philosopher – I don’t teach ethics or political philosophy; This is just for fun. It’s also important to note that these books both came out in the 1970s and it is a testament to both works that reading them, decades later, has inspired me to consider the ideas put forth. It’s also important to note that both philosophers changed some of their views, as espoused in these works, later in life – I have not read anything else by either author so I will not be able to provide additional details as to which ideas replaced what they had written previously.
Let’s begin.
For those unfamiliar or for those who just need a refresher, A Theory of Justice posits that there, when it comes to determining whom in society should receive which bundle of primary goods (think the basics that someone needs in order to achieve a broad [if admittedly ill-defined] set of life goals), we should consider justice through a prism of fairness – his idea is usually framed as Justice as Fairness. To this end, Rawls believes that basic institutions in society would ideally follow the following framework:
1. The principle of greatest equal liberty – an indivisible set of basic rights that are roughly analogous to our Bill of Rights (freedom of religion, freedom of speech, etc) are to be provided to every person in the society.
2. The principle of (fair) equality of opportunity - this is beyond what we would view as formal equality of opportunity – (more on this later).
3. The Difference Principle
a. Social and economic inequalities are to be arranged so that they are both (a) to the greatest expected benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity.
Rawls derives this framework through a thought experiment: imagine that you and a group of others had to create rules and laws to decide how society and institutions would function. You had to all agree on the rules. Here’s the twist: none of you know who you are going to be in this society. You don’t have any idea to your race, class, gender, intelligence levels, work ethic, etc. Rawls believes that his framework would be the one that is chosen behind this “veil of ignorance”. If you want to know why he believes this, the bulk of A Theory of Justice is devoted to explaining why he believes this idea and not any variation of utilitarianism or any form of communism would be chosen. 
Suffice it to say that since the release of A Theory of Justice many have taken issue with a number of the claims that Rawls makes, including Nozick, who, while respectful and admiring of Rawls’ work, takes him to task on a series of points.
One of the strongest that he makes is that it is odd that a theory of justice that works for Rawls at the macro level would have nothing to say with how things operate on the micro level. Another way of phrasing this, if this framework for justice holds at the governmental level, why not at the level of everyday individuals and how they interact with one another? To this end, he gives what has been called The Wilt Chamberlain thought experiment. Because there have been responses to this that, I believe, nitpick the argument and are in danger of missing its point, I will give my own version of what I believe that Nozick is trying to say that sidesteps some issues that have arisen over the years.
I call it Arnold at Muscle Beach. Let’s suppose that a famous bodybuilder, Arnold S., goes to Muscle Beach and decides to work out. A crowd gathers around him and one of the owners of a bench offers his use of the bench for free provided that Arnold uses it to demonstrate his bench press. Arnold arranges a deal so that the 40 or so people around him offer him $1 for every rep that he can do. He does 25 and gets paid $1,000. If the Rawlsian model worked at the micro level, Arnold would have to explain how this demonstration of athletic prowess advantages the least advantaged group. He’d also have to concern himself with making sure that everyone had an equal shot at the bench press and the ability to lift whatever amount of weight he used to demonstrate his bench-pressing abilities.
Under welfare state capitalism, as long as Arnold claimed the $1,000 on his taxes and paid the applicable rate, this would be acceptable (and also positive in the eyes of the government – their tax revenues are now higher through no effort of their own). 
Taken out of the realm of ideal theory, the difference principle is very demanding – it requires that society is able to a). identify a least advantaged group and b). create an economic and social system that consistently is able to provide for the needs of this group effectively. In addition, Rawls insists that the difference principle requires that non-material concerns (like self-respect) should be a concern of societal institutions (and the government) as well. 
As noted above, these ideas stem from Rawls’ original position and he believes that this is the system that would be chosen behind the veil of ignorance.
To quote Nozick directly, “To maintain a pattern one must either continually interfere to stop people from transferring resources as they wish to, or continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them.”
Nozick uses a series of thought experiments throughout Anarchy, State, and Utopia. One of the most effective, for me, was to apply the idea that Rawls puts forward to a class taking a test. Under the Rawlsian distribution, a class after taking a test (but before grades have been posted), would have to meet as a group to decide how these scores would be distributed and decide to distribute them akin to the difference principle, instead of being distributed by merit. 
This aligns with Nozick’s broader criticism of Rawls’ theory – its “absence of moral factors in the calculations of persons in Rawl’ original position.” Earlier in the book, he states, “The whole procedure of persons choosing principles in Rawls’ original position presupposes that no historical entitlement conception of justice is correct.”
In both cases, Nozick is touching on the concept of agency – either agency to, say study for a test in order to improve a score, or gain a fortune by lying, cheating, and stealing. While Nozick doesn’t spend a large number of pages in his book covering it, he does leave space in his entitlement theory for issues of corrective justice – that is the redistribution of wealth that is gained immorally or illegally. This is not a central part of Rawls’ theory and some critics – Charles Mills among them – question if Rawls considered it at all.
In my reading, Rawls is very concerned about having an entrenched caste class – the inclusion of fair equality of opportunity that is far beyond what we currently have in America (or anywhere else, for that matter), as well as a concern of minority groups having equal access to positions of power underline this concern. It should be noted that Rawls was writing at a time when the gains of the civil rights movement were recently won and there were real questions as to how long they would last. In the years since, economic class, and not race, seem to be higher barriers to the truly egalitarian world that Rawls envisioned in his theory. 
All that being said, my biggest issue with Rawls is that I believe that a thoroughgoing version of his fair equality of opportunity is not compatible with a capitalistic society, at least not without a clear terminal point.
Consider the following – if a society focused on fair equality of opportunity (remember Rawls’ ideas are lexicographic – meaning one must be considered before the other goes into effect – fair quality of opportunity follows the principle of greatest liberty and precedes the difference principle itself) would go to its logical conclusion, it would require a complete reordering of the economy: anything that could be viewed as driving life outcomes would command more resources. A short list of this would be: education, healthcare, housing, nutrition, first responder services, and the armed services. This is a partial list – I’m sure you can think of other services here as well.
You may be asking what’s wrong with that? Don’t we want our public goods to be high quality?
Of course. The problem arises when the public sector “eats” the private one. 
Allow me to give a brief rundown of what I envision when I raise this issue. Say that in order to try to make public goods at least as good as private ones, that the federal government injects hundreds of billions of dollars into public education. This would be to modernize old schools and build new ones, hire more teachers, and increase extracurricular activities. At the collegiate level, tuition is made free at public universities for qualifying students. 
Healthcare would have to be universalized or made so inexpensive as to be essentially free at service. Given that healthy parents are key to the development of children, this would surely be extended to adults too.
If a talented person in this society graduates from college, their choices are likely to drive them towards the public sector. Why? The benefits of the public sector are likely to be higher. The wages here will also have to be higher in order to drive talented people towards it – the mandate for fair equality of opportunity requires these services to attract the best people (assuming that human talent matters here). This will, over time, diminish the private sector. Why go into the private sector if the profits from the private sector will have to be heavily taxed in order to pay for these enhanced services? 
Again, if human capital and drive matters, for most people who are not driven by entrepreneurship, the public sector seems like it would be the no brainer here. Over time, either the public sector would have to expand to produce the goods that the private sector is unable to provide (either because they do not have the capital or because they do not have the talent), further eroding the power of markets.
In addition, in the private sector, a thoroughgoing fair equality of opportunity would require any hiring manager to give true fair notice of a position, make it available to anyone (regardless of geographical location), and have real, legitimate reasons for not hiring someone, in order to stave off accusations of any kind of bias (racial, gender, age, etc). This would further erode the private sector’s ability to hire the best people in a timely manner.
Furthermore, Rawls believes that a society that has gone through this process would produce a wealthy class that would accept the high level of taxation because the process Rawls has put forward is more just. Why? Currently, many of the wealthy elite believe that they have earned their great wealth and that their positions are of their own making, despite many of them coming from great privilege and advantages themselves. 
If they did earn their money “the hard way”, providing that it is still on the level of multi-billionaires, what is stopping this group from becoming more, not less, resentful?
I believe one of the weaknesses of A Theory of Justice is Rawls’ understanding of psychology. He makes a distinction between what he calls “basic psychology” and “special psychology” that is unclear. This leads him to underestimate the power of resentment and envy, as well as positive emotions such as harmony. 
To return briefly to Nozick’s test example, if consensus was required (why would consensus be necessary? In the history of the world, there has never been true political consensus – Democracy, foundationally, explicitly, does not require consensus in order to function) a class in the position of determining how they will split the pool of grades before the test would likely reject the difference principle in favor of pure communism, when viewed through the prism of harmony and social cohesion. Part of Rawls’ rejection of this idea is that the greater set of goods engendered by the difference principle would drive those behind the veil of ignorance to choose it. However, this requires them to a). believe that the greater basket of goods would be possible b). those able to create surplus would be driven to do so, despite what could be quite paltry incentives, under the difference principle and c). discount social cohesion and harmony that would arise from pure communism.
I think the idea of a pattern of justice, like Nozick, is silly. Desert having no role whatsoever in the distribution of goods is silly squared. I think that Rawls’ book is worth reading and I look forward to reading his other books, even if I believe that the major critiques against his work are valid – we didn’t even touch on the limitations inherent within any ideal theory.
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In the last section of Anarchy, State, and Utopia, Nozick turns to the idea of what a utopian state may look like. After listing several historical figures (having, in total, nearly the entire spectrum of political ideology), he also asks the reader to add themselves and their parents to this list. He makes the point that it is demanding the impossible to imagine a single political system that would allow for the satisfaction and flourishing of all of these people. Nozick’s solution is to hold a minimal state that adjudicates disputes between the other states and the defense of all other states (and, presumably, itself) but nothing else. The idea here being that microstates would form and that these microstates would each have political structures and policies that better conform to a variety of utopias – it is a buffet of options as opposed to a steak at a steakhouse. All individuals would be free to leave any of these microstates on their own accord and, over time, individuals would settle into states where their political believes most closely matched the governance (or lack thereof) over them.  
I think here that it’s important to note that Nozick, like Rawls, is writing his book pre-internet. The flow of information today is more widespread and much, much faster than it was even in the mid-1970s when television was ubiquitous (over 90% of households owned televisions at this time). Also, due to the power of video on the internet, individuals are able to watch and re-watch and watch again any news story, to their hearts desire, something that really was not possible at that time. Given these changes, it seems that Americans are much less likely to view regionality as a buffer – anger does not recognize any state or local border. What does this entail for Nozick’s utopian vision?
Let’s try to imagine what such a society would look like under this plan. I’m an American so I’m going to use America as my starting point. If somehow, this came to pass, it may look like the following: I believe that George Packer more or less got things correct in The Last Best Hope, his book from a couple of years ago – I think there are roughly 4 major political ideologies: Free America, Smart America, Real America, and Just America. I would summarize each as follows: Free America are Americans who are devoted to free markets and liberty above all else. These would be your Elon Musks and Rand Pauls of the world  - I believe Nozick, if he lived today, would also be in this camp. If you’ve played the video game Bioshock, Rapture is the quintessential dystopian version of a free-market society that has fallen apart. Real America is Sarah Palin’s America – this state would have strong emphasis on conservative values such as hard work, religious obedience, and family as the cornerstone of how society is structured. In similar communities today, military service is often regarded very highly. Smart America is your professional managerial class where intelligence, education, and credentialization are often seen as virtues in of themselves. Barack Obama and Bill Clinton are touchpoints here. Finally, Just America would be a society where anti-discrimination and equality are key virtues. Bernie Sanders and AOC would be political figures who would fit right at home in a society built around these ideas.
Packer assumes that Free America would have the fewest adherents. I would argue that, if anything, the increase in legalization of drugs and gambling would point in the direction of a growing influence, not waning, of this group. That being said, for the sake of this hypothetical, I’m going to assume that these four ideologies are roughly equal in population.
I’m also going to assume that there would be some political schisms in every group but I also believe that there is a limit to just how much choice people would truly want in this situation; I believe if there was a fifth state, Meh America – those who are politically inactive and apathetic – that this would be by far the largest state. Because of this, I’m going to assume that each state is split in half on some continuous issue, so we would have a total of 8 (4 *2) plus the minimal state, which I’m going to now refer to as the Watchdog State in order to delineate it from the other microstates mentioned above.
Let’s assume that this system goes into effect and ten years go by and everyone who wants to move will have moved, freely and fairly by their own accord. Let’s assume that every state is able to provide for the following without too much stress on the population due to technology and/or manpower – feeding, clothing, schooling, electric and transportation infrastructure analogues to a large city such as Atlanta, GA. Each state still relies on some form of capitalism, though some are more thoroughgoing than others. Each state is able to trade with other states in order to have a lifestyle of its residents that more or less corresponds to what we have today. Let’s assume that each of these 8 states are geographically separate (think of regions of the US) and correspond these 8 states to whatever region you want.
What could go wrong?
The obvious thing is that the adjudicating powers of the Watchdog State, in part because by design it is weak (and most likely, geographically small), are going to rely on diplomacy much more than force. One of the major issues is that of leaving and joining. Nozick notes that individuals have the right to leave any of these utopias at any time. This raises many questions – do they have to fund the travel themselves? Do they have free reign to join any other state? Does that state have to accept those who are coming in from other states? Why or why not? Can they live in the Watchdog State? Is there a limitation on how many people can live in the Watchdog State? Where do those who work in the Watchdog State live? Do they have to live in other states?  Say a state has no prisons but does decide that there are some crimes for which the best punishment is banishment from that state. Are they able to do this? Why or why not? Are there limitations as to where they can be banned to? For which crimes?
I think this is actually small potatoes to what would likely be the largest hurdle: moral repugnancy is probably the single force that would end the utopian experiment the fastest. Because each state is allowed to, with the consent of those governed, ignore what we call human rights legislation today, the basic rights that Rawls wrote about, as referenced above, do not hold; For instance, Nozick says in his book that slavery, in some cases, could be allowed under this system. 
Imagine the following scenario – this could happen in any of the following states (but most likely Free America):
Think of the evilest person you can imagine. Let’s call him…Reginald. He designs and patents (would these patents be handled by the Watchdog State or would each patent only hold for each individual state? What do you do when two states have conflicting views of how strong copyright and patent law should be – say Free America vs. Just America?) Nozick’s thought experiment – The Experience Machine. For those who may have not read the book, the experience machine is a machine or device for which the user, in using it, is able to experience any event or sensation as if they were living through it outside of the machine, experiencing it in real life. 
Given what we’ve seen with the nature of addiction through the last fifty years, it’s easy to see how such a device, if perfected, would lead to widespread dependency. If Reginald used this slave army for his own power and depravity, paying them only on the thinnest of sustenance and rewarding them with time in the experience machine, what would happen? Would the Watchdog State intervene? At what point? Based on the number of people who are addicted? How would they determine who was addicted? What level of surveillance would have to be required in order to affirm that consent is able to be truly provided?
Nozick’s book is easier to read than Rawls’ and I found his thought experiments to be worthy of consideration. The book is wider ranging than A Theory of Justice and, while I found some of his ideas to be ludicrous, I found a roughly equal number in Rawls (generational tithing, for instance). I was skeptical of the idea of protection agencies when I first heard them summarized, but Nozick makes a compelling argument to their likely need and trajectory over time. Some of his ideas, that activities should not be banned but that a market should drive the price of say breaking someone’s arm, for those who want to participate in that “transaction”, made much less sense – it’s not clear to me what happens when someone who clearly is not able to pay for, let’s say, stealing a car. Does the victim accept partial payments (like $50/month) until he is “made whole” for the inconvenience? What happens if the victim dies before he is able to be paid back? Does the perpetrator have to buy insurance before he commits the crime? If so, what happens if he doesn’t? Obviously, for more egregious crimes the questions get even more difficult. 
Both books are worth reading though as a lay person, I did struggle, especially with Rawls, to finish reading. If you enjoy thinking about political theory and the ways that we have decided to structure society, especially democracies, they are worth a read. 
Thank you for listening to this episode of Elegant Ramblings. If you’ve enjoyed what you’ve heard, please consider liking and subscribing to the channel on YouTube or iTunes. You’ll be able to find show notes there. Hope you enjoyed. Bye for now.