Does Nozick Have a Theory of Property Rights?
Barbara H. Fried
Stanford Law School
March 9, 2011
THE CAMBRIDGE COMPANION TO NOZICK'S ANARCHY, STATE AND UTOPIA (Ralf M. Bader and John Meadowcroft, eds., Cambridge University Press, 2011), pp. 230-252.
Stanford Public Law Working Paper No. 1782031
In the almost forty years since Anarchy, State and Utopia has appeared, Nozick's libertarian theory of property rights, laid out in Part II of the book, has been subject to innumerable internalist critiques. In this paper, I argue that the Nozick of Parts I, II and III, read together, holds at least three mutually inconsistent theories of property rights: utilitarian; libertarian; and anything goes, provided that citizens have some unspecified level of choice among legal regimes. If any of the three predominates, it is not libertarianism but utilitarianism.
Nozick is hardly alone in this regard. Nozick's inconstancy to libertarian principles is symptomatic of the problems deontologists of all stripes encounter in translating abstract articulations of rights theory into concrete rules. His de facto solution is typical as well: When the going gets tough, rights theorists tend to turn utilitarian.
Number of Pages in PDF File: 30Accepted Paper Series
Date posted: March 10, 2011 ; Last revised: October 18, 2012
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