Liz Wang

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Serious libertarian philosophers are hard to come by, and Robert Nozick is one of this rare breed. In Anarchy, State, and Utopia, he argues creatively and convincingly against the welfare state, taking a strong stance on the primacy of individual rights. And despite the fact that he has modified his ideological stance since the book's publication in 1974, it remains a libertarian Bible. So it's too bad that in one short chapter of Justice, Gender, and the Family, feminist Susan Moller Okin successfully eviscerates Nozick's entitlement theory by demonstrating that it leads to absurd and unacceptable conclusions. If one accepts Nozick's claim that one owns what one produces, then, according to Okin, women must own their children because they use their own resources--their bodies--to produce them. While her assertion that only women are capable of producing children is questionable (after all, men are an integral part of the reproductive process--both a sperm and an egg are required, and fathers have as much of a claim to ownership of their children as mothers), her overall argument is devastatingly effective. Underlying Okin's critique is a recognition of the distinction between persons and human nonpersons--the former consisting of those whom Nozick believes possesses characteristics (such as rationality and the ability to plan one's life) in virtue of which they are protected by moral side constraints, the latter being those humans without these characteristics, such as infants and the mentally disabled. While Nozick makes a strong case for his concern for the rights of persons, Okin reveals the violent clash of his theory with our intuitions if human nonpersons are ignored. Despite the pivotal role this distinction plays in Okin's argument, however, she never directly addresses or explicates it. I intend, in this article, to elaborate on this dichotomy, describe how it contributes to Okin's critique, and point out some of the potential shortcomings of expanding our discussion of rights to include all humans.

First, we must examine why Okin's critique of Nozick is successful. In the preface to Anarchy, State, and Utopia, Nozick asserts, "Individuals have rights, and there are things no person or group may do to them (without violating their rights)" (ix).1 What are these rights, and why do individuals have them? According to the entitlement theory, an individual has the right to do what he wishes with his person (because he owns himself) and his legitimately acquired holdings (because of the principles of justice). Nozick's first principle of justice is the principle of just acquisition, which stipulates that a person is entitled to initially unowned things that she has made useful by working on it. He cites Locke's theory of acquisition as one we should accept, arguing, "Why does mixing one's labor with something make one the owner of it? Perhaps because one owns one's labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns" (174). Note that implicit in this argument (and elsewhere in his explication of the entitlement theory) is the assumption that one owns oneself--or else how could one own one's labor? Following from the first principle is the second, the principle of just transfer. This states that individuals are entitled to things that they have acquired from others, if the others legitimately acquired it, and the transfer was made voluntarily.

Justice, then, consists solely in the nonviolation of rights. Nozick asserts that instead of attempting to minimize the violation of rights, as utilitarians do, we should "ºplace them as side constraints upon the actions to be done: don't violate constraints C. The rights of others determine the constraints upon your actions" (29). Thus, an individual may not be violent towards or steal from others for this would violate their rights to their own persons and their legitimately acquired holdings.

Now that we have an idea of what Nozickian rights are, what is the basis or the justifying ground of these rights? Nozick asks, "ºin virtue of precisely what characteristics of persons are there moral constraints on how they may treat each other or be treated?" (48). He delivers a laundry list of characteristics that other philosophers have suggested as individuating us from other animals, such as being "ºsentient and self-conscious; rationalº; possessing free will; being a moral agent capable of guiding its behavior by moral principlesº," and argues that they are individually insufficient to establish a connection with moral constraints on the actions of others (48). Instead, Nozick adopts the following characteristics of humans as establishing a basis for moral side constraints on others: "º[the ability] to formulate long-term plans for its lifeºto consider and decide on the basis of abstract principles or considerations it formulates to itself and hence not merely the plaything of immediate stimuli, [the ability to limit] its own behavior in accordance with some principles or picture it has of what an appropriate life is for itself and othersº[and] the ability to regulate and guide its life in accordance with some overall conception it chooses to accept" (49). The fatal flaw in this approach, as Okin points out, is that not all humans possess these characteristics, and Nozick provides no justifying ground for moral side constraints for these individuals (let us refer to them as human nonpersons and those who do possess the characteristics that Nozick describes as grounding side constraints as persons). Thus, human nonpersons, such as infants and the mentally disabled, do not have any inviolable rights.

This flaw in Nozick's approach is what gives Okin's critique its strength. Since he leaves human nonpersons unprotected by moral side constraints, they do not have any inviolable rights. Thus, they do not have a right to themselves--they do not own themselves. Since parents, who are persons, have rights to the products of their labor, and infants are the products of the labor of their parents, parents have ownership rights over their children. (Okin claims that women alone own their children, but as mentioned above, there is no reason why mothers and fathers should not have joint ownership of their children, since men are indisposable to the reproductive process. Thus, I will henceforth refer to parents instead of mothers.) They can dispose of them as they see fit, just as they dispose of their other property. Hence, parents have unlimited power in their treatment of their children; they could raise them to use as slaves, to kill and eat, or to love and nurture. In a Nozickian world, children would be mere commodities--at least until they attained the capacities that Nozick regards as the basis of having moral side constraints that protect them from violation of their rights.

This is the crux of Okin's critique, and while she mentions that Nozick leaves infants, small children, and the mentally disabled without rights (and therefore, that parents own their children through the principle of just acquisition), she never actually discusses the important implication of this argument: that any theory of justice must include human nonpersons. A description of how her critique proceeds is necessary to bring this out. Okin begins by contending that Nozick assumes that people own themselves but ignores the fact that "ºpersons are not only producers but also the products of human labor and human capacities" (79).2 How and why is it, she asks, that people come to own themselves instead of being owned by those who made them, as other things are? In his brief discussion of Locke's position on parents owning their children, Nozick rejects many of Locke's reasons for denying that children are the property of their parents (Okin 80). Yet, he does not provide any of his own arguments; he merely offers, but does not pursue, two possible solutions: to argue that "ºsomething intrinsic to persons bars those who make them from owning themº" or that "ºsome condition within the theory of how property rights arise in productive processes excludes the process whereby parents make their children as yielding ownershipº" (Nozick 289). Okin contends that neither of these potential solutions are tenable.

First, the idea that there is something intrinsic to humans that bars them from being owned by others is largely defeated by Nozick's belief that "ºa free system will allow [an individual] to sell himself into slavery" (Nozick 331). But, as Okin points out, it might be objected that simply because an individual can sell himself into slavery does not mean that he can be already owned at birth (81). Looking at the whole of Nozick's theory, Okin sees two conflicting ideas: one, that people own themselves, and two, that people own the products of their labor, and that as products of their parents' labor, infants are owned by their parents. She suggests two reasons "ºwhy Nozick's theory, in spite of its apparent dedication to self-ownership, cannot avoid the conclusion that women's entitlement rights to those they produce must take priority over persons' rights to themselves at birth" (82).

One reason is "Nozick's consistent preference for legitimately acquired property rights over all other claims, including basic need and the right to life" (82). Okin argues that it is difficult to see why Nozick, given his strict adherence to property rights, would "ºgive an infant, who is after all the product of someone else's body and labor, the right of self-ownership, in contravention of the principle of acquisition" (82). Okin's arguments here are a bit misleading; she sets up a conflict of rights--the right to property of the woman (parents) and the right to life of the infant. This suggests that Nozick considers infants to be those who qualify for moral side constraints. But they don't qualify for moral side constraints and they don't have rights because they are not rational or able to guide their lives according to moral principles, etc. (these being some of the characteristics which are the justifying basis for moral side constraints). Thus, there is no conflict of rights to begin with, where one (parents' property rights) must be determined to have priority over the other (infants' right to life). Nozick, as dedicated as he is to self-ownership for persons, never gives any reasons for self-ownership for human nonpersons. Once we take note of this fact, it simply follows that parents own their children--we don't even need to discuss Nozick's preference for property rights over all other claims.

A second reason Okin gives for why parents' entitlement rights take priority over infants' rights to themselves at birth is that "ºNozick gives clear priority to those who affect others over those they affect" (82). Again, while this is an interesting point (although I am not quite sure that it is true), it is irrelevant because Okin already wins the argument--that in accepting Nozick's theory, one must accept that parents own their children at birth--without it. This is because, as discussed above, Nozick never provides a basis for infants' self-ownership.

Okin argues that Nozick's second potential solution, that there is something about the process of reproduction that is different from other productive processes and excludes it from conferring ownership, is also unworkable. She explains, "ºthere is nothing about a woman's production of an infant that does not easily fulfill the conditions of the principle of acquisition as Nozick specifies them.ºA human infant originates from a minute quantity of abundantly available and otherwise useless resources.ºClearlyºit is the complex capacities of the female reproductive system and its labor that achieve the transformation of two cells into an infant" (83). Thus, there is nothing unique about the process of reproduction that differentiates it from other productive processes. Nozick argues that "Whoever makes something, having bought or contracted for all other held resources used in the processºis entitled to it" (160). Thus, couples in a marriage or other partnership who have consensual sex would have joint ownership of the child, and women who buy sperm would have sole ownership of the child. Since Nozick argues that people are entitled not only to what they labor to produce, but what their special talents and capacities bring them, even those couples who do not intend to have a child are entitled to ownership of it.

Finally, and most importantly, Okin points out that the ownership of children by their parents is not a violation of moral side constraints because "ºNozickºspecifies the characteristics in virtue of which persons are protected by moral side constraints in such a way as to leave infants, small children, and many of the developmentally disabled completely unprotected by them" (84-5). Since these individuals do not possess these characteristics, they are not protected by moral side constraints and do not have inviolable rights. Thus, Nozick "ºhas no groundsºfor arguing against a mother's right to dispose of her infant as she chooses" (85).

Surely, most people find this conclusion abhorrent. Nozick's entitlement theory must therefore be rejected because it clashes so violently with our intuitions. But we must be clear that we are rejecting Nozick on intuitive, and not logical grounds. After all, Nozick's theory does not fail because it is internally inconsistent, but because it leads to conclusions that no right-minded person would accept. Okin, however, claims that the entitlement theory suffers from both self-contradiction and morally unacceptable conclusions. She argues that her analysis "ºleaves the core of his theory--the principle of acquisition--mired in self-contradiction. If persons do not even 'own' themselves, in the sense of being entitled to their own persons, bodies, natural talents, abilities, and so on, then there would appear to be no basis for anyone's owning anything else. Nozick's theory of entitlement is clearly premised on the notion that each person owns himself. But as I have shown, when we consider women's reproductive capacities and labor, the notion of self-ownership that is so central to the principle of acquisition turns out to be completely undermined by that very principle" (86). I contend that the core of Nozick's theory remains untouched; his argument that persons have rights because they possess characteristics which provide a basis for moral side constraints is never addressed by Okin. She only addresses the fact that Nozick fails to provide an account of moral side constraints and rights for human nonpersons such as infants, and that this leads to repugnant results. Thus, her assertion that since persons (here she seems to mean all humans) do not own themselves, there cannot be a basis for their owning anything else is unwarranted. Nozick's argument does establish that persons own themselves and thus can own legitimately acquired holdings. Nozick does not contradict himself here because he is simply silent about the status of human nonpersons.

Okin's critique implies that a comprehensive moral theory must take all human beings into account, persons and human nonpersons (although, she never makes this distinction explicit). While Nozick defines persons as those possessing the characteristics which justify moral side constraints, other philosophers have defined them in other ways; in general, persons are defined by moral criteria, while human beings are a more inclusive biological class. All persons are human beings, but not all human beings are persons (usually, this refers to fetuses, infants, the mentally disabled, the comatose, and the like). However, defending the rights of all human beings is a difficult task, as one skeptic of the existence of universal human rights, Douglas Husak, puts it, "ºno morally relevant characteristic(s) that could provide the basis or ground of such rights is possessed by all human beings.ºeach proposed foundation of human rights fails what might be called the universality or relevancy tests" (236).3 In short, effective arguments for the existence of universal human rights are hard to come by, and we must defend the proper treatment of humans on other grounds.

Quite often, we are left with mere intuitions about how to treat people--indeed, Okin's critique of Nozick appeals to our intuition that allowing children to be subject to the whims of their parents is wrong. She never actually gives reasons why this is wrong, but her critique is effective nonetheless. But perhaps reliance on our intuitions is not enough; a fuller critique of Nozick would explore these intuitions and develop arguments to support them.

1 Robert Nozick, Anarchy, State, and Utopia, (USA: Basic Books, 1974).

2 Susan Moller Okin, Justice, Gender, and the Family, (USA: Basic Books, 1989).

3 Douglas Husak, "Why There Are No Human Rights," The Philosophy of Human Rights, (Belmont, CA: Wadsworth Publishing Company, 1989).