The Contingency of Nozickean Redistribution

The Contingency of Nozickean

Redistribution

Name: Octave Schyns

Master track: European Private Law

Name of supervisor: dr. L.K.L. (Lyn) Tjon Soei Len Date of submission: 22-07-2016

ABSTRACT

The latest reports show that inequality worldwide as regards income is ever increasing. The system of taxation does not seem sufficiently equipped to briskly tackle this problem. As a result, voices emerge considering alternative methods to overcome this unfairness. Private law is currently being used as instrument for this end, but it could be exploited even further if the level of redistributive measures intensifies. This thesis begins by introducing some background information of private law and distinctions between contract and tort law that will structure our thinking about redistribution in private law. Subsequently, I assess the suitability to redistribute wealth through private law. The valuation of an assessment as such would depend heavily on a particular political viewpoint, which inevitably leads to mutually conflicting outcomes. Therefore, the question whether private law should be employed as an instrument for levelling income inequality is answered from the perspective of Robert Nozick. Following his political theory, it is discovered that private law is not apt to redistribute wealth because it would distort a just and acceptable division of goods in contract law, and violate property rights of unconnected third parties in tort law. Furthermore, Nozick’s entitlement-theory serves as a yardstick to put three majors values - liberty, predictability, and efficiency - to the test. These values mark the difference between redistributing wealth via tax law or private law, as there will be pressure on them if the latter is applied as a mechanism to promote income equality. Ultimately, this thesis is concerned with a hypothetical situation in which Nozick is required to select a redistributive system for the redistribution of wealth by taking into account the aforementioned values. It is concluded that there is no amount of social utility that could prompt him to sacrifice the rights to life, liberty, and property. However, as regarded to efficiency, it would be more desirable for him to integrate a redistributive form of private law into his minimal state in order to redistribute wealth as well as sustaining this minimal state and the very principles upon which it is built.

"You can't satisfy everybody; especially if there are those who will be

dissatisfied unless not everybody is satisfied."

Robert Nozick - A Framework for Utopia

Introduction ... 5

I. Private Law and Redistribution ... 8

A. Redistributive Bites ... 11

A1. Contract law ... 11

A2. Tort law ... 12

II. The Philosophy of Robert Nozick ... 13

A. The Entitlement-Theory: Part I ... 14

B. The Entitlement-Theory: Part II ... 16

C. Implications for private law ... 17

III. Private law versus tax law ... 19

A. Liberty ... 20

B. Predictability ... 22

C. Efficiency ... 23

C1. Kaplow and Shavell’s argument ... 24

C2. Frequency ... 25

IV. Nozickean Perspective ... 28

A. Liberty ... 28 B. Predictability ... 31 C. Efficiency ... 32 Conclusion ... 37 Bibliography ... 40

I

In search of a suitable subject to write my master thesis on, I stumbled upon an article that contained a perhaps rather unsurprising notion: the rich are getting richer and the poor are getting poorer.1 According to the author, the distribution of wealth has tilted even further in favour of the well-to-do elite of the world’s society.2 _{Another report by Oxfam}3 _{revealed that}

the global wealth is increasingly concentrated in the hands of an extremely wealthy group of people. The study shows that by now the aggregative capital of the richest 1% of the world exceeds the remaining 99% of the global population. Financial institutions such as banks have, among other players, played an unequivocal role in ensuring that development of increasing inequality in wealth. As harsh and unfair as these observations may sound, and although we all seem to disapprove of this incessant tendency, we yet appear incapable to bridge over this problem.

There has been an on-going literary debate between philosophers, lawyers, economists, and politicians as to what developments have led to the increase of inequality with respect to wealth. The purpose of this thesis is, however, not to determine how this inequality has come about, but rather whether there is a possibility to realize a redistribution of wealth, or, more specifically, a desirability to redistribute wealth through private law.

Private law may not be the first area of law one considers to be apt to realize the redistribution of wealth. Hence, this approach is principally meant to complement much more renowned methods such as tax law or the social security system. For example, most Western countries apply a progressive taxation structure that requires taxpayers to pay taxes according to their income. In other words, the more they earn, the more they have to pay. These methods have certainly contributed to solving the problem. Nonetheless, as the articles confirm, the results are not completely satisfactory since the wealth inequality continues to exist and even increases. Therefore, the question rises whether another area of law should be called upon to redistribute wealth.

1 _{Broere, A., Waarom de rijken steeds rijker worden en de armen armer, 26-05-2015 [online]}

2 _{For the remainder of this thesis, I mean wealth by its economic definition. That is, an abundance of}

possessions with monetary value. I exclude, for example, definitions that include having meaningful relationships with other people.

Thus far, there have been extensive argumentations in which the utilization of private law as an instrument for the redistribution of wealth is either lauded or decried. On the one hand, proponents generally point out the egalitarian view that every opportunity should be seized to realize poverty alleviation.4 While on the other hand, antagonists usually base their disapproval on the economic inefficiency of this method compared to the current methods for redistribution.5 It is difficult to decide whether private law is an appropriate tool as such since the various arguments reach their point of conclusion from different, and often mutually exclusive perspectives. Therefore, I will evaluate the appropriateness of private law to redistribute wealth from only one perspective, which is the theory of Robert Nozick. I have deliberately chosen for a libertarian starting point since the last couple op decades, governments seem to embrace a more socialistic approach towards private law. This thesis highlights several examples to demonstrate this approach. However, with the aim in mind of narrowing the gap between rich and poor, it will be most interesting to see to what extent a liberal is receptive to this objective.

Robert Nozick was an American philosopher and best known for his book Anarchy,

State and Utopia, which is basically viewed as a libertarian response to John Rawls’ A Theory of Justice. In this book, Nozick develops his aforementioned “entitlement-theory”6. The entitlement-theory is a social ethical system that in essence implies that the righteousness of a certain distribution is not a matter of the statistical structure of the distribution, but of the legitimacy of one’s individual entitlement. In other words, it is more important to establish if a distributed share, or “holding”, is acquired lawfully, than it is to learn the size of one’s share. The theory of Robert Nozick is to be considered a normative assessment framework in light of which the entire research will take place. The theory presumably provides an interesting viewpoint to provide an answer to the question whether we should refrain from redistributing wealth through private law, or, exactly the opposite; continue to pursue redistributing wealth through private law. Nozick is considered to be a liberal in every sense of the word. As liberalism is commonly associated with giving citizens as much freedom as possible accompanied by the least form of state intervention, redistribution of wealth appears to run counter to Nozick’s idea of a minimal state. The question whether private law should

4 _{See for example, Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill}

Law Journal 2005/2, p. 327-358

5 _{See for example, Kaplow, L., & Shavell, S., Why the Legal System Is Less Efficient than the Income}

Tax in Redistributing Income, Journal of Legal Studies 1994/6, p. 667-682

incorporate redistributive values has therefore not really been answered from a liberal perspective. Consequently, it will be all the more engaging to assess a redistributive form of private law in light of Robert Nozick’s theory. Despite Nozick’s prima facie aversion to the conventional progressively redistributing tax system, the door may be ajar for redistribution through private law.

In accordance with the foregoing, I aim to investigate the following research question.

Does Nozick’s ‘entitlement-theory’ allow for private law to be used as an instrument for the redistribution of wealth and would it be desirable for him to do so?

The structure of this thesis is as follows. I will start off in Chapter I by introducing some of the core functions attributed to private law as well as providing some examples of how redistribution in private law is and could be realized in practice. In Chapter II, I will expound the entitlement-theory as set out in Anarchy State and Utopia along with the corresponding principles and background information that are necessary to understand his way of thinking. Thirdly, in Chapter III, I will dwell upon three major values - liberty, predictability, and efficiency - that correlate to the issue of redistributing wealth through private law in comparison with the current alternative of tax law. These values continue to be put forward by many scholars in the debate concerning redistribution, as they are said to be impaired if private law incorporates redistributive legal rules. For this reason, I have selected these particular elements to analyse and consequently evaluate in light of Robert Nozick’s theory. That evaluation will take shape of a hypothesis in which I follow Nozick’s line of reasoning to determine which area of law (private law or tax law) he would choose by taking into account the aforementioned elements. Finally, the thesis ends with a conclusion.

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Private law, or civil law, is about economic and social relations between individuals. It ought to provide a predictable set of rules that governs economic transactions, business organisations, property rights, compensation for wrongs, and other kinds of associations between citizens.7 Public law, on the other hand, generally concerns affairs in which the government is involved and therefore it is very distinct from private law. The difference is grasped in the characterization of horizontal and vertical relations. Horizontal relations concern those relations of citizens against citizens and vertical relations citizens vis-à-vis the state. Private law comprises of a vast area of law such as contract law, family law, or tort law. The core function of private law thus has been to regulate the relationship between individuals, absent interference by the government. The latter sets the rules and promulgates civil codes by which individuals have to play and thereupon obey. Consequently, the state will enforce those rules when it is invoked to do so. The rules are frequently derived from ancient laws, customs, and principles that are established throughout centuries and can even be traced back as early as Roman times. Given the heterogeneity of all countries, one would expect the content of legal rules to have adapted to the particular circumstances. This is however not true as the legal systems of advanced industrialized countries share similar discourses of private law. These systems attune to a general pattern of determinations of which agreements will be enforced, the types of sanctions imposed, and the rules governing the bargaining process.8

Up until recently, most legal systems warmly embraced the idea of freedom of contract, party autonomy, and laissez faire.9 In other words, private law has avoided absorbing political influence as much as possible. However, times have changed and the legislative debate ponders on the question whether the values and principles underlying private law should adhere to these changes as well.

Countless wise individuals have expressed their view as to what private law should primarily do. The most commonly heard argument is that private law rules should provide for

restitutio in integrum, i.e. corrective justice.10 According to Ernest Weinrib, a well-known

7 _{Rutgers, J.W., Social Justice in European Contract Law, European Law Journal 2004, p. 654}

8 _{Collins, H., Regulating Contracts, Oxford University Press 2002, p. 31}

9 _{Rutgers, J.W., Social Justice in European Contract Law, European Law Journal 2004, p. 654} 10 _{See e.g. Weinrib, E., The Idea of Private Law, Harvard University Press 1995, p. 211}

voice on this thought, for private law to be true to itself, for it to be coherent, it must conform to corrective justice and only to corrective justice. Weinrib’s idea of private law leads to a monistic view, since it ascribes only one function to private law. Yet what is corrective justice exactly? In an Aristotelian sense, corrective justice performs a certain operation: amending the consequences of a transaction that has gone askew.11 Corrective justice treats the wrong, and the transfer of resources that is required to undo it “as a single nexus of activity and

passivity where actor and victim are defined in relation to each other.”12 While doing so, it takes no account of the parties concerned but simply secures equality by taking away the advantage from one party and adding it to the disadvantage of the other party.13 Corrective justice can be illustrated by the following example. Suppose a person is involved in a car crash and he incurred material damage. In that case, corrective justice requires that the party who has been wronged will be restored in the situation before the accident occurred.

It is fairly obvious that private law should at least be concerned with giving citizens the possibility to attain compensation to the extent they suffered (pecuniary) loss.14 _{After all,}

private law governs the economic relationships between individuals and to provide for compensation when wronged corresponds with most people’s common sense of justice. However, is there another role that private law could play? Should we abandon the monistic view and answer with a pluralistic response, thereby including redistributive considerations? Altogether, is it even possible to pursue multiple aims without encroaching on one another? In tort law, for example, several legal systems have already introduced the possibility to award punitive damages.15 These damages ought to have a preventive effect and dissuade individuals from committing torts. As we will shortly see, redistributive rules too, have found their way into the realm of private law within some legal systems. This thesis will, however, not dwell on the feasibility of the coexistence of multiple functions within private law, but rather examine whether there is room and desire for a redistributive function of private law in light of Nozick’s theory.

From a moralistic egalitarian point of view, it could be argued that private law should serve as an instrument to realize distributive justice. Principles of distributive justice provide

11 _{Weinrib, E., Corrective Justice, Oxford University Press 2012, p. 335} 12 _{Ibid, p. 56}

13 _{Internet Encyclopaedia for Philosophy [online]}

14 _{‘Loss’ is interpreted differently and can include for example economic loss. However, for the}

purpose of this thesis it is not really relevant what exactly counts as ‘loss’, and therefore the various positions in the debate will not be dealt with.

moral guidance for the political process and structures that affect the distribution of economic benefits and burdens in societies.16 While corrective justice does not take the specific position of the parties involved into account, distributive justice does precisely the opposite. It hands out honours and rewards in accordance with the initial background of the disadvantages and advantages of the recipients. In public law this practice is no novelty. As a matter of fact, in Finland and Sweden, certain rules already exist that give the courts discretion to take the wealth of parties into account when determining the payable speeding penalties.17 Yet how does private law stand in this regard?

Private law has certainly embodied the spirit of redistribution. Although in many legal systems the increasing protection offered to weaker parties in contract law has continuously eroded party autonomy in general, in return those underprivileged parties have gained more rights and consequently reached a stronger bargaining position vis-à-vis their contractual counterparty (i.e. consumers-businesses, employees-employers, tenants-landlords), which has led to a diminution in relative inequalities.18 _{For example, in contract law, the implementation}

of minimum wages has given employees a considerable security with respect to the level of income.19 In tort law, some systems have given the judiciary discretion to mitigate damages by taking into account the financial capacities of both parties.20 In particular when the claimant party is deemed wealthier than the party that is held liable, and the payment of the entire sum would lead to far-reaching (financial) consequences for the latter.21

Nevertheless, governments mainly seek to enhance social welfare through the tax system and social security. Tax collection is the ultimate example of a merit-based treatment. However, given the fact wealth inequality continues to exist and is even increasing, it seems unavoidable to consider other methods and areas of law to help in that direction. In light of convenience and in order for the reader to grasp the full picture, I will briefly demonstrate in what ways private law could help to further align prosperity with the rich and the poor in the next paragraph.

16 _{Stanford Encyclopaedia of Philosophy [online]}

17 _{See Wilhelmsson, T., Critical Studies in Private Law, Kluwer Academic 1992, p. 113-124} 18 _{Rutgers, J.W., Social Justice in European Contract Law, European Law Journal 2004, p. 654} 19 _{Although in essence, this policy instrument is used to redistribute income from the more fortunate to}

the less fortunate, an analysis of Stephen Allen revealed that the minimum wage is a relatively weak distribution device that is only useful under special circumstances. See the accompanying article Allen, S., Taxes, Redistribution, and the Minimum Wage, The Quarterly Journal of Economics 1987/3, p. 477-490

20 _{See e.g. article 6:109 lid 1 of the Dutch Civil Code}

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Since private law is still a comprehensive field of law, I will narrow it down to contract law and tort law.22 These fields of law are exemplary for they respectively represent involuntary and voluntary obligations. Contracting is considered to be bipolar: an action by both parties is required.23 Without mutual assent in the form of offer and acceptance, there is no conclusion of contract. Transactions in tort law are considered to be bipolar too, but only in that the rights and duties of both parties can change. This change is generally involuntary for at least one of those parties. The contrast between the obligations provides an excellent angle to determine whether they are expedient to serve as a distributor of wealth. In addition, these fields correspond to different Nozickean principles, which I will discuss in Chapter II.

A1. CONTRACT LAW

Contract law offers parties a large degree of discretion with respect to the form and content of the contract. In the Netherlands, in principle, only those contracts whose nature is irreconcilable with public order or morality are per definition declared null and void.24 However, under particular circumstances it can be quite problematic for contract law to pick up on redistribution and achieve results. Suppose compulsory obligations in terms of redistributive measures are imposed on a provider of goods or services. In theory it is likely that the provider will convert that obligation into the price of the good or service, which the consumer will ultimately pay for. Think, for instance, of a legally required standard of equipment for rented housing the purpose of which is to satisfy tenants.25 In that case, the intended beneficiary profits from a level of housing that is higher than it would have been otherwise, but the rent could reflect the adjustment to the legally required standard.

22 _{For the remainder of this thesis, whenever I speak of private law, it is these fields of law I}

particularly refer to.

23 _{Bridgeman, C., Corrective Justice in Contract Law, Vanderbilt Law Review 2003/1, p. 252} 24 _{Art. 3:40 Burgerlijk Wetboek}

25 _{Eidenmüller, H., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the}

A2. TORT LAW

Tort law encompasses a body of rights, obligations, and remedies for persons that have suffered harm and or losses by the wrongful act(s) of others.26 _{The key element in this}

practice is that a party has not chosen to get involved; therefore the obligations that arise are completely involuntary. The primary example to incorporate distributive purposes in tort law is to take the wealth of a potential victim and tortfeasor into account. Suppose two parties - one rich, one poor - are involved in a car accident with only material damage as a result of the accident. Rich person X is held liable for his wrongful act and has to compensate poor person Y for the damage he incurred. Under normal circumstances, that is without the incorporation of redistributive justice in the law, person X will reimburse the amount required to repair person Y’s car (or compensate otherwise, e.g. for the loss of value, which is not relevant to illustrate the point in the case at hand). If tort law would aim to redistribute wealth progressively, a rule could stipulate that the rich tortfeasor is obliged to pay 120% of the damage he caused, whereas the poor person would only cover for 80% of the damage in case he caused the accident. This rule imposes a “wealth surcharge”27 whereby affluent tortfeasors are compelled to settle for relatively more money than a destitute tortfeasor would be. The surcharge would go to the system and consequently be used to help poor tortfeasors (e.g. when two poor persons are involved in a car accident).

As illustrated above, there are many ways for private law, and both contract law and tort law in particular, to provide for the redistribution of wealth. The examples certainly do not provide an exhaustive list. Furthermore, they could raise questions as to the practicability, feasibility, and desirability of the implementation of such rules. It is fairly obvious that many authors disagree on which role private law should play exactly, as is the case for public law. For example, the key argument against tax law and underlying libertarianism is that people cannot be used as means to promote ends that they are unwilling to contribute to.28 _Therefore,

from a Nozickian perspective, it will be interesting to see to what extent private law should adopt such a role.

26 _{The Legal Dictionary [online]}

27 _{Eidenmüller, H., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the}

DCFR, European Review of Contract Law 2009/2 p. 120

28 _{O’hanlon, S., Equality, Entitlement, and Efficiency, Cardozo Public Law, Policy & Ethics Journal}

II.

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In 1974, Robert Nozick’s Anarchy, State and Utopia emerges, a literary work of art that has belonged to the all-time classics of contemporary liberal tradition ever since. This

locus classicus has been abundantly discussed in numerous publications as well as criticized

due to the unorthodox and rebellious nature of the theory therein. The theory meant a radical breach with the widely accepted ideology of a welfare state.29 _{This ideology had been}

fervently advocated and impressively expressed by Nozick’s philosophical counterpart John Rawls.30 The quintessential point of Rawls’ social-philosophical covenant conveys the idea that essential goods need to be distributed in such a way that it will improve the position of the less fortunate in an optimal sense. Nozick, on the contrary, defends a more liberal state philosophy in which distributive justice, as proposed by Rawls, does not play a role. He presents a theory that is not based on happiness, like the utilitarian, nor on liberty, as one might expect from a libertarian, but on sheer property rights: rights of ownership over oneself that no one should interfere with.31

Nozick’s idea of a minimal state leans towards what one would call anarchy, although that is certainly not the message he intends to convey. He defends a different conclusion in which a state:

“Is limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts”, and “any more extensive state will violate persons’ rights”.32

A state like this is referred to as a ‘night-watchman state’ as opposed to Rawls’ ‘welfare state’ most, if not all states in Western countries have adhered to. Nozick considers an extensive state that exercises its powers beyond the core functions mentioned above to be overstepping its competences and thereby violating the rights of individuals.

Every single philosophy is part of a historical reality and a reflection on the thinking and doing of coevals and predecessors; it cannot be understood by itself, isolated from the works of others. Therefore it would be interesting to contemplate how Nozick’s political theory affected the literary, political, and philosophical scene in which it was set. Moreover,

29 _{Driessen, Van Utopie Naar Anarchie, 1990, p. 9}

30 _{Rawls, J., A Theory of Justice, Basil Blackwell Oxford 1972} 31 _{Wolf, J., Robert Nozick, Cambridge Polity Press 1991, p. 4}

Nozick is an exemplary exponent of the rebirth of the liberal thinking that penetrated the Western world in the seventies and eighties and he has published compelling work regarding epistemology.33 However, the maximum length and purpose of this thesis press me to turn to the part of Nozick’s theory that is imperative to asses the suitability of private law as a remedy to redistribute wealth.

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The state of nature is a philosophical proposition of a social situation, antecedent to an organized regime. Nozick is in the supposition - following Locke and Kant - that private ownership is a right that exists and has legitimacy irrespective of, and thus prior to, the formation of a political order. Among other objectives, the welfare state and its economical and social politics aim to remove distributions that are deemed unfair. These unfair distributions occur in relation to the accessibility of the labour market, health care, accommodation, education etc. Countermeasures such as social legislation or positive discrimination intend to improve the position of the less fortunate. However, Nozick criticizes the prevalent terms of ‘unfair’ and ‘fair’ distributions in the welfare state, and replaces it by his own theory: the entitlement-theory.

The entitlement-theory focuses on the legitimacy of one’s individual entitlement, rather than it would stipulate a pattern to which distributions must conform. That is, it will specify a procedure or set of procedures which must be followed if an acquisition of property is to be justified: your property is justified if and only if you came to hold it by the correct procedure.34 _{According to Nozick, that procedure consists of three principles:}

1. “A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding;35

2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding;36

3. No one is entitled to a holding except by (repeated) applications of 1 and 2.37”

33 _{See e.g. Nozick, R., Philosophical Explanations, Cambridge Mass 1981} 34 _{Wolf, J., Robert Nozick, Cambridge Polity Press 1991, p. 78}

35 _{Nozick, R., Anarchy, State, and Utopia, Oxford Basil Blackwell 1974, p. 150} 36 _{Ibid., p. 150}

The first criterion basically determines whether a distribution is the outcome of a justified form of original procurement (principle of acquisition). The second criterion then demands that distribution to result from correct transfers (principle of transfer). The third makes sure possible inaccuracies in the first two acquisition forms have been corrected (principle of

rectification). If all criteria are met, it will lead to justified ownership and thus to a just

distribution of property.

A dominant feature in the entitlement-theory is that it is primarily concerned with the process or history that precedes the distribution, instead of focussing on a specific, ideal situation the distribution should lead to. Put differently, the main question in Nozick’s theory is how each individual holding is established, rather than examining how many holdings a person has or the discrepancies the distribution entails. It is of exclusive and utmost importance to determine whether a person has acquired possessions without interfering with other persons’ entitlements. For example, the distribution of income over a particular population does not deal with the relation between individual incomes, but with every individual holding an sich: “If each person’s holdings are just, then the total set (distribution)

of holdings is just.”38

The forms of distribution could alter due to levelling of income or the enlargement of oppositions. The way this may happen is decisive for the acceptance thereof. Consequently, every new distribution, including an extreme unequal one, is acceptable provided that she is the result of another legitimate distribution and this transfer is established by justified means.39 If the distribution alters through various steps, which are compatible with the transfer and rectification criterion, the end result of that process is legitimate too, regardless of the level of (in)equality the new distribution will bring about. Suppose an extremely wealthy individual has been left a considerable fortune. It is evident this person is not in particular need of additional money, nor would he reasonably desire it. Therefore, from an egalitarian point of view, it would be just to redistribute this property to the less fortunate. However, Nozick argues that social neediness should not be the determining factor in allocating resources. Instead he claims that what should be decisive in the question of the justice of a

37 _{Ibid., p. 151}

38 _{Nozick, R., Anarchy, State, and Utopia, Oxford Basil Blackwell 1974, p. 153} 39 _{Ibid, p. 151}

person’s property holdings are not the characteristics of a person - their need or desire - but facts about how he acquired the property and accordingly, if that process entitled him to it.40

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The characteristic element of Nozick’s distribution criteria is that they approve of any distribution as long as it results from unrestricted trade between free people. He even disassociates himself from Hayek’s premise41_{, according to which one should receive a}

reward calculated by the market value thereof. Nozick only agrees with this assertion to the extent it applies to economic transactions between individuals. However, a free market also allows for actions that do not involve the performance of a counterparty, such as heritages or charitable donations. A resolute application of Hayek’s premise would lead to a denial of such actions. Following Nozick’s entitlement-theory, these actions are acceptable indeed.

The economic order ascribed to these distribution criteria is the free capitalist society. In this type of society, fair distributions will arise automatically. According to Nozick, fair distributions can only come into being in a free market economy. The redistribution of wealth is not the product of an intervention by the government, but the result of countless actions of individuals who are free to do as they please. The acceptable distribution of goods thus comes into being because of free trade. Another essential feature of a fair distribution is the contingent nature of this distribution. It is not predetermined who is going to possess certain goods, nor the amount of goods he is going to possess. Nozick draws an insightful parallel with marriage that he claims to be as contingent as the redistribution of wealth. That is, the freedom to choose with whom one will marry inevitably entails that some people will not find a partner, whilst others may marry multiple times.42 _{Pari passu, the economic freedom of}

transfer encompasses a particular category of people with low income, whereas others live in great prosperity.43 In this economic order, whatever one possesses is primarily an issue of

40 _{Wolf, J., Robert Nozick, Cambridge Polity Press 1991, p. 9}

41 _{Hayek, F., The Constitution of Liberty, The University of Chicago Press 1961, p. 87} 42 _{Nozick, R., Anarchy, State, and Utopia, Oxford Basil Blackwell 1974, p. 150}

43 _{Ibid, p. 150: “There is no more a distributing of shares than there is a distributing of mates in a}

society in which persons choose whom they shall marry. The total result is the product of many individual decisions which the different individuals are entitled to make.”

purchasing, selling, exchanging, producing, inventing or donating.44 The free market explicitly prohibits any state intervention to influence the distribution process. In Nozick’s view, if the morality of the process is going to be assessed, the centre of attention should be on the correctness of the individual (trans)actions.

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So far we have seen what Nozick’s brave new world would look like, but what implications does it have for private law? That is to say, what normative principles can be drawn from his theory to shape private law according to this world? In general, it can be said that a Nozickean idea of private law serves above all to perpetuate the minimal state, which means that it should not incorporate any legal rules created by the government to pursue another goal than the protection of citizens. More specifically, I will treat contract law and tort law separately in the following paragraphs.

Nozick believes in a free market in which individuals can either trade (market exchanges such as sales of goods and services) or give (gratuitous transfers such as inheritance and charitable contributions). Nozick considers these two types of actions identical for all purposes in his theory of justice in transfer.45 Furthermore, he argues that the only legitimate state is a state that restricts its activities to the protection of the rights to life, liberty, property, and contract.46 Contract law seems to constitute an important requisite to realize Nozick’s society. If one is able to contract with others in line with the principle of justice in transfer, then a total just distribution of goods will automatically arise. Contract law should therefore not encompass any stipulations that potentially jeopardise this process. For example, a contractual stipulation that protects tenants from landlords against unforeseen eviction is unacceptable if both parties did not voluntarily agree to include such a covenant. The only way an acceptable division of goods will be achieved is through the process of free trade. He therefore contends that no state (nor any other entity for that matter) should have a hand in upsetting distribution patterns by implementing stipulations that aim to redistribute wealth.

44 _{Ibid, p. 143}

45 _{Fried, B, Wilt Chamberlain Revisited, Philosophy & Public Affairs 1995/3, p. 229}

46 _{Mack, E., “Robert Nozick’s Political Philosophy”, The Stanford Encyclopaedia of Philosophy 2015}

I believe the implications Nozick’s theory has on tort law can be derived from his third principle of the entitlement-theory: the principle of rectification. This rule deals with situations regarding unjust acquisitions and unjust transfers that have not been in line with the principle of justice in transfer, comparable to the unjust situations that arise due to torts. For Nozick, the follow-up question is what would have happened if the unjust transfer or acquisition had not occurred. The answer to that question calls upon the principle of rectification, which requires returning the victim in the position in which he or she would have been if the injustice had never happened, for example by means of restitution or compensation. However, the principle does not allow for compensatory measures that would violate the rights of unconnected third parties. In other words, Nozick’s theory implies that the ownership rights of others cannot be violated as they neither committed nor benefited from the injustice. To impose a wealth surcharge on rich tortfeasors unquestionably violates their property rights, as they do not have anything to do with a tort involving two poor parties. As a result, it seems a Nozickean idea of tort law allows for the possibility of corrective justice, but otherwise rejects redistributive intentions. Overall, it can be concluded that there is no amount of social utility that justifies a violation of Nozick’s principles.

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Although antagonists oppose the egalitarian approach to private law, they nevertheless generally yield to the fact that private law can be used to promote equality to some degree.47 _It

could be argued that in any event some redistribution is superior to no redistribution at all. That is to say although the private law mechanism arguably entails a loss of the three major aspects of liberty, predictability, and efficiency, some wealth is nevertheless redistributed. Contingent upon the incorporation of redistributive objectives in private law, private law could, however, face impediments to accomplish its classical goals, such as corrective justice aimed at in tort law and advocated by the aforementioned Ernest Weinrib. If private law intends to be coherent, then there is no other option.48 _{Furthermore, according to Elizabeth}

Anderson, private law would fail to address the moral values it embraces, if it were also used to redistribute wealth.49 She argues, for example, that the moral principles (e.g. inflicting harm on others is bad) laid down in tort law are irreconcilable with redistributive aims.

The current state of affairs reveals that tax law remains the principal method to reduce income inequality. Despite several valiant endeavours to ‘level the score’ in private law, tax law is considered superior to private law in redistributing wealth based on three dominant factors: liberty, predictability, and efficiency.50 Put differently, it is argued that redistributing wealth through private law impairs those aspects, which are therefore better preserved by the utilization of tax law.51 For this reason, redistribution should be exclusively dealt with by these mechanisms. In Keren-Paz’s words:

“[…] Private law is not the least restrictive means by which to promote equality, and should therefore not be the mechanism of choice.”52

Given the alternative of tax law and social security, these systems ought to promote equality more effectively and efficiently than private law - i.e. with more promising results

47 _{Ibid, p. 332} 48 _{Supra note at 10}

49 _{Anderson, E., Compensation Within the Limits of Reliance Alone, American Society for Political}

and Legal Philosophy 1991/33, p. 182-183

50 _{See Chapter I for examples of those endeavours.}

51 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

p. 332

and fewer means - as well as encroach less on people’s liberty and ability to predict expenditure.53 In the following paragraphs we will see to what extent this argument is valid.

In any event, although private law apparently may not be the first mechanism to think of, does this mean redistribution should be restricted to the realm of the conventional tax and transfer system indefinitely? Are those reasons even adequately substantiated and, moreover, convincing enough to withstand redistributive private legal rules according to Nozick’s theory? And, first and foremost, what are these elements all about? Let us examine more carefully if, and in what ways these elements are relevant in Nozickean terms and would be impoverished in case private law seeks to facilitate the promotion of equality. In order to obtain a clear and comprehensible picture, I will consider to what extent the determining factors - liberty, predictability, and efficiency - are derogated from by comparing the premise with the situation in which the traditional tax system redistributes wealth.

A.

L

Redistributive intentions ipso facto go hand in hand with intruding on liberty. Taking away a sum of money from individuals deprives them from the freedom to arrange their lives as they see fit - it negatively affects their ability to promote their personal goals.5455 However, there is a difference between encroaching on one’s liberty via the tax system or private law mechanisms. The latter also threatens one’s negative liberty.56 Positive liberty is the possibility of acting in such a way as to take control of one’s life and realize one’s fundamental purposes, whereas negative liberty implies the absence of obstacles or constrains.57 _{Promoting equality through private law does so by either curtailing a particular}

course of action or compelling an individual to take a certain action. This difference can be best explained by the following ‘property as personhood’ theory.58

53 _{See e.g. Kaplow, L, & Shavell, S., Why the Legal System Is Less Efficient than the Income Tax in}

Redistributing Income, Journal of Legal Studies 1994/6, p. 667-682

54 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

p. 343

55 _{Obviously, having little to no financial means has a similar effect on liberty, but I do not intend to}

discover or explain the developments that have led to the status quo.

56 _{Ibid. p. 343}

57 _{Stanford Encyclopaedia of Philosophy [online]}

The system of tax and transfer lends itself easily for redistributive purposes due to the extremely fungible nature of the object distributed: money. For most, if not all people money merely expresses pecuniary value. 59 Objects on the other hand, could reflect personal value as well, depending on the object in question and the relationship between owner and object (think of a watch with the family name given from father to son).60 The divergence between personal and fungible property is why tax officers do not knock on doors to collect goods to which the owner possibly holds a deeply rooted affection. For that reason, taxation exacts a lesser toll on one’s liberty than does the redistribution of the same amount of money by inhibiting one’s freedom of contract.61 That freedom will be interfered with if one is obliged to enter a contractual relationship under certain redistributive conditions.

Thus, there is a different degree of intrusion with respect to tax law redistribution and private law redistribution. As a result, this greater intensity leads some thinkers to believe that private law should refrain from incorporating redistributive values. John Rawls, for example, describes the basic structure of society that includes the tax system, but ignores private law.62

Within the basic structure, the major social institutions fit together into one system and they assign fundamental rights and duties and shape the division of advantages that arises through social cooperation.63 If private law belongs to the basic structure that is regulated by Rawls’ principles of justice, then it can be tailored in such a way as to maximize the economic position of the worst-off group.64 However, according to some65, Rawls does not consider private law to be a part of the basic structure, and therefore it should not be formulated with a distributive goal in mind, so that there are no unanticipated and unpredictable interferences with one’s expectations and acquisitions.66

59 _{Dagobert Scrooge McDuck is probably the only exception to the rule.} 60 _{Radin, M., Property and Personhood, Stan. L. Rev. 1982/34, p. 959}

61 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

p. 345

62 _{Scheffler, S., Distributive Justice, the Basic Structure and the Place of Private Law, Oxford Journal}

of Legal Studies 2015/2, p. 225

63 _{Rawls, J., The Basis Structure As Subject, American Philosophy Quarterly 1977/14, p. 159}

64 _{Scheffler, S., Distributive Justice, the Basic Structure and the Place of Private Law, Oxford Journal}

of Legal Studies 2015/2, p. 225

65 _{It remains unclear to what extent the liberties as Rawls perceives them would restrict the use of}

private law for distributive purposes.

66 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

B.

P

In the Netherlands, adult citizens are very familiar with the blue envelopes that are delivered in their mailbox each year at precisely the same period of time. The colour of the envelope unambiguously reveals the message contained therein: taxes are due. Redistribution of wealth by the tax system is in principle predictable. With a few exceptions, the taxpayer is well aware of the amount of taxes that he is required to pay each year, irrespective of the kind of system he is used to (progressive, regressive, or proportional67). Consequently, the taxpayer has the autonomy to plan and control his expenditure and spend money according to his or her tax rate. To put it differently, the ability to manage one’s expenditure assists in realizing positive liberty. In case private law would incorporate the promotion of equality, that liberty would cease to exist. A wealthy individual will lose that liberty because he is unexpectedly confronted with rules that confiscate chunks of his resources to facilitate redistribution. In addition, it may be uncertain as to what is the exact amount involved in that redistribution.68 These elements all negatively affect one’s positive liberty, which could raise other concerns as well.69 Allan Schwartz voices this concern and asserts that unpredictability is objectionable not only with respect to the issue of liberty, but also because it could be translated into a utilitarian fear of costs regarding uncertainty.70

“People deciding whether to contract or breach, to make a new product or vary an old one, would risk being affected by rules subsequently adopted whose nature is unknowable, and by application of rules already adopted which are largely unpredictable. If the risk of an adverse outcome is large people may not act; otherwise, activities become more expensive, as precautions must be taken against remotely possible as well as reasonable contingencies.”71

67 _{Regressive taxes have a greater impact on low-income individuals/entities than high-income earners.}

A proportional tax affects low-, middle- and high-income earners relatively equally. A progressive tax has more of an impact on higher-income individuals and businesses, and less of a financial impact on low-income earners.

68 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

p. 335

69 _{Predictability is not the sole focus of attention in any area of law; it needs to be read in conjunction}

with other important values and rights. If, for example, we reinstate slavery and predictably state that slaves cannot legitimately acquire property, a predictable set of rules is established but rights to life and liberty are seriously impinged upon.

70 _{Schwartz, A., Products Liability and Judicial Wealth Redistributions, Indiana Law Journal 1976/3,}

p. 564.

The potential loss of predictability is especially relevant in tort law and to a lesser degree in contract law. I will clarify the distinction between these two fields of private law.

Tort law deals with civil wrongs that none of the parties have accounted for, which renders the act of a tort per definition unpredictable.72 If tort law rules would incorporate redistributive intentions than that will have additional consequences for the possibility to manage expenses. In other words, “the sudden, unexpected expropriation of one’s wealth inevitably hampers one’s liberty.”73 People are generally not concerned with the prospect of a tort, which is why they take out insurance to cover unexpected, and often exorbitant costs in such circumstances. Contract law on the other hand, represents a less unpredictable obligation. One has usually carefully considered the contracts he intends to conclude. Nonetheless, under certain circumstances agreements could not have been anticipated on since they are concluded ad hoc and out of necessity. Suppose a person’s washing machine has broken down and he wants to replace it. Although this person could reasonably foresee the imminence of a contract (by going to a store for white goods, talking to a shop clerk and selecting a suitable replacement), essentially the contract remains unpredictable for he could not foreknow the sudden breakdown of his machine (provided that the machine had worked properly the entire time). To that extent, the predictability loss will be relevant indeed.

To conclude, redistributive private legal rules will intrude deeper on the sphere of predictability than tax law. One’s positive liberty will be impeded due to a decreased ability to plan expenditure. This is caused particularly by the accidental involvement in torts, and to a lesser extent in concluding contracts, and the uncertainty of the amount to be redistributed.

C.

E

Legal rules are frequently inspired by economical values. They are drafted and designed in such a manner that aims to uphold and enhance the cost-effectiveness. Correspondingly, from an economic perspective, the redistribution of wealth through private law is often considered undesirable solely on the basis of the inefficiency inherent to the

72 _{Nevertheless, torts can be prevented by precautionary measures that are taken in order to avoid them}

and.

73 _{Keren-Paz, T., Private Law, Redistribution, Predictability, and Liberty, McGill Law Journal 2005/2,}

system.74 Although redistribution through the authentic tax-and-transfer system is also accompanied by some loss of efficiency, economists claim it will yet always be more efficient than redistribution through private law. What is the reason for the superiority qua efficiency of the income tax system compared to private legal rules? Louis Kaplow and Steven Shavell provide an intelligible answer to that question.75

C1. KAPLOW AND SHAVELL’S ARGUMENT

The title - Why The Legal System is Less Efficient Than the Income Tax in

Redistributing Income - of Kaplow and Shavell’s article unequivocally exposes their stance in

the debate: private law is to be ignored as a tool to improve the position of the lesser-off by abstracting wealth of the better-off. The general problem with redistribution through tax law is that it reduces incentives to work; people will be less motivated to perform labour when they are aware that they will receive less than the optimal sum. Redistributive measures thus inevitably entail a loss of value due to the distortion of the comparative appeal of work and leisure.76 The intended beneficiaries receive less than what was abstracted from the well-to-do people. To put it metaphorically: if the entire income aggregate is carried as water in a bucket with a few holes at the bottom, there will be less water left in the bucket before it is entirely distributed.77 According to Kaplow and Shavell, this problem does not disappear if private law would be exploited for redistributive goals “because the distortion is caused by the redistribution itself”78, and, in addition, the utilization of private law “[…] also creates inefficiencies regulated by the legal rules”.79 _{For example, prices will generally adjust to}

reflect to the expected cost of newly promulgated redistributive rules. The bottom line in their argument is, therefore, that redistributing wealth by enforcing equality-promoting private law legal rules offers no advantage over the income tax system, which they illustrate on the basis of the following, slightly simplified, example.

74 _{See e.g. Polinsky, A. & Noyes, J., An Introduction to Law and Economics, New York University}

Law Review p. 410-430

75 _{Kaplow, L, & Shavell, S., Why the Legal System Is Less Efficient than the Income Tax in}

Redistributing Income, Journal of Legal Studies 1994/6, p. 667-682

76 _{Eidenmüller, H., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the}

DCFR, European Review of Contract Law 2009/2, p. 119

77 _{Ibid, p. 119}

78 _{Kaplow, L, & Shavell, S., Why the Legal System Is Less Efficient than the Income Tax in}

Redistributing Income, Journal of Legal Studies 1994/6, p. 668

Suppose that in a particular country high-income individuals are confronted with a tax rate of 30 percent on their income. Given the high inequality of income, the government of that country then decides to redistribute wealth even more. As a consequence, a new inefficient private law legal rule is adapted that aims to redistribute an additional one percent of the taxable high incomes. In that event, 30 percent would go to the tax authority, whereas one percent would be taken by the legal system.80 Alternatively, the government could retain an efficient legal rule while increasing the tax rate by one percent to 31 percent. Kaplow and Shavell argue this increase does not reduce their incentive to work because it is neutralized by the one percent decrease in the implicit tax that correlates to the inefficient legal rule. The extra revenue this ‘efficient rule model’ yields would be equivalent to the ‘inefficient rule model’, with the exception that in case of the latter model resources would be wasted due to the inefficient rule.

“Even though the income tax distorts work incentives, any regime with an inefficient legal rule can be replaced by a regime with an efficient legal rule and a modified income tax system designed so that every person is made better off.”81

If these resources were to be saved, they could be used to improve the position of all individuals by reducing taxes and increasing payments to the poor or other redistributive actions.

C2. FREQUENCY

The inefficient legal rules ostensibly possess less redistributive potential, but why is that? Again, the areas of tort law and contract law are convenient to illustrate this point. In Chapter X, I already mentioned how compulsory obligations on providers of services or goods to achieve distributive justice are ultimately reflected in the purchase price, which is then paid for by the consumer. Therefore, when two parties enter into a contractual relationship, it is general economic knowledge that redistribution usually fails to attain its purpose due to adjustment of the conditions to the expected cost of legal rules.82 Moreover, realizing redistribution through contract law rules may even evoke transactional costs for

80 _{Ibid, p. 674} 81 _{Ibid, p. 669} 82 _{Ibid, p. 675}

intended beneficiaries in case they want to opt out of default redistributive rules that have led to an increase in the purchase price. As a result, marginal consumers will be priced out of the market because they are no longer able to afford the ‘legally enhanced product’.83

However, there is another problem inherent to the utilization of contract law rules to promote equality: frequency. Contract law is not apt to redistribute wealth in a systematic way. Many contracts are contingent upon the intentions of individuals and are concluded on an incidental basis. For example, if poor people are given some sort of discount in order to buy a car, it is fairly obvious that not all poor people will benefit from this discount since they are not all buying a car. Furthermore, the position of a particular party to a contract is insufficient evidence for social neediness.84 Public law measures generally identify a group on the basis of a certain threshold such as income. Contract law on the other hand distinguishes individuals by their relatively weaker party position (i.e. seller-consumer, landlord-tenant, employer-employee). It is highly questionable to what extent redistributive contract rules will not benefit wealthy individuals equally. Rich persons consume goods, rent houses, and work too. Essentially, the legislator is required to define who is deemed to be poor in those weaker party positions in order to become eligible for certain benefits. Yet it is not particularly easy to establish such a group that is and remains uniformly true. A deficient estimation could even set redistribution to flow in the wrong direction in some cases.85 This problem can only be avoided if the wealth of the parties is taken into account. However, in that case redistribution through private law seems to offer no significant advantage over redistribution through tax law.

In whatever way, the contrast with tax law seems quite self-evident. None of us are exempt from paying taxes86, which renders tax law a much more appropriate mechanism to pursue redistributive goals systematically.

Redistributive rules in tort law also prove to be economically inefficient. Building on the given example of rules that would determine the parties’ wealth when assessing the awardable damages in case of a tort, those rules would not serve their purpose of setting

83 _{Eidenmüller, H., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the}

DCFR, European Review of Contract Law 2009/2, p. 121

84 _{Ibid, p. 120}

85 _{Kaplow, L, & Shavell, S., Why the Legal System Is Less Efficient than the Income Tax in}

Redistributing Income, Journal of Legal Studies 1994/6, p. 675

efficient incentives for responsible behaviour.87 Besides the efficiency loss equivalent to tax law, there also occurs an additional type of loss. That is to say, ‘rich’ tortfeasors would be compelled to take higher precautionary measures than would be economically justified.88 In practice they would need to install more safeguards to avoid possible liability although the probability of liability does not increase in accordance with the redistributive inflated loss.

A brief recapitulation teaches us that promoting equality through private law rules encompasses a greater loss of efficiency than does the tax-and-transfer system. This is caused by a number of reasons such as the difficulty to uniformly classify individuals as ‘needy’ and the frequency by which involvements in torts occur and contracts are concluded.

87 _{Shavell, S., A Note On Efficiency vs. Distributional Equity in Legal Rulemaking, American}

Economic Review 1981, p. 414

88 _{Eidenmüller, H., Party Autonomy, Distributive Justice and the Conclusion of Contracts in the}

IV.

N

P

Nozick defends a minimal state in which individuals are able to acquire and exchange goods and services according to the principles derived from the entitlement-theory. In addition, one can lay claim to rectification in case there has been an aberration in either the principle of acquisition or the principle of transfer. As we have seen, those principles entail a minimalistic form of contract law in which there is no room for redistribution, as it would distort an acceptable division of all goods in a society. Furthermore, Nozick’s theory leads to a ‘corrective justice-shaped’ sort of tort law, which eliminates redistributive intentions for they would violate people’s property rights.

Despite Nozick’s disapproval of using private law as an instrument to actualize the redistribution of wealth, I would like to pose a hypothetical situation - set in his minimal state - in which he is required to choose between private law and tax law by taking into consideration the values of liberty, predictability, and efficiency. The underlying rationale of this hypothesis is to see to what extent Nozick’s theory attaches importance to these values, and, moreover, how the arguments for and against redistributive private law - contract law and tort law in particular - relate to Nozick’s perspective.89

A.

L

Nozick believes that we have a right to life, liberty and property.90 To that end, it is important to explain these rights more thoroughly as they may come in conflict with each other. Suppose a person is dying of starvation and there is another person in his presence who has sufficient food to spare. One could argue that a right to life requires the other person to share his food. However, Nozick makes a clear distinction in this regard between negative and positive rights.91 In case of a positive right to something a particular person has a corresponding duty to provide the other person with the possibility to enjoy that right. In the

89 _{Note that the emphasis in this proposition lies on the suitability of redistribution via private law in}

the minimal state

90 _{Nozick, R., Anarchy, State, and Utopia, Oxford Basil Blackwell 1974, p. 179} 91 _{Wolf, J., Robert Nozick, Cambridge Polity Press 1991, p. 19}

example just given, the individual would be compelled to hand over some food. A negative right lacks this implication; rather it is a right to non-interference.92 To put it differently, positive rights may oblige other persons to undertake a specific action, whereas negative rights indicate a duty to forbear a certain action. In the example this would mean the man with the food has to respect the other person’s right to life by not putting it jeopardy, yet he is not obliged to assist in preserving that right to life in any way. This line of reasoning is exemplary to illustrate Nozick’s doctrine of ‘separateness of persons’93. According to Nozick, we are all different individuals with separate lives and there is no justification for sacrificing one person’s rights for another person’s rights.94 He considers this absolute negative right to non-interference the first essential characteristic of our rights.

“There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. […] To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person.”95

The second pivotal element in Nozick’s doctrine becomes relevant in case one of the three main rights he described - right to life, liberty and property - would run counter to one, or both of the remaining rights.96 A clash of rights as such can be properly illustrated by using a lightly altered version of the well-known ticking time bomb scenario.97 In this case, a terrorist has hidden a bomb somewhere in New York City. The authorities have apprehended the terrorist and interrogate him for the location of the bomb but to no avail. The terrorist remains silent unless he is reunited with his wife whom he wants to murder for committing adultery. Consequently, the question arises whether it would be justified to torture the terrorist in order to determine the location of the bomb and save the lives of many innocent citizens as well as their property. The authorities now have a choice to violate the wife’s right to life and liberty with the aim of preventing thousands of other people’s right to be violated. From a classical utilitarian perspective, the ultimate goal is maximization of well-being for all, thus allowing for the authorities to hand over the terrorist’s wife. Some utilitarians would take the

92 _{Ibid. p. 19}

93 _{See infra note at 124}

94 _{Nozick, R., Anarchy, State, and Utopia, Oxford Basil Blackwell 1974, p. 33} 95 _{Ibid, p. 33}

96 _{Of course, this problem would not be relevant in Nozick’s utopian world where individuals simply}

have negative rights. Conflict between the three rights only arises in case those rights are positive and are enforced to the detriment of the other rights.

97 _{See e.g. Joseph, S., & Cummins, D., The Ticking Time Bomb, Review of Philosophy and}