Robert Nozick takes up disagreements with Rawls theory specifically with the difference principle and his original position.  He criticizes the difference principle for being an end-state principle and how influenced it is to mitigate this notion of morally arbitrary facts, specifically the morally arbitrariness of natural assets and what social class you’re born into.  He thinks the original position has too thick of a veil of ignorance, which leads to the mistaken difference principle that Nozick rejects.  Also, Nozick claims Rawls’s entire theory is set up in a way where entitlement theory can’t even be considered.  This was done because of Rawls’s attempt to eliminate morally arbitrary factors in formulating a theory of justice.  The difference of opinion on how to treat morally arbitrary factors like natural talents and social class, is what the main disagreement is about.  We will need to start with getting an understanding of each person’s theory before we can start investigating the critiques Nozick brings up.  

Rawls’s theory of justice is a constructivist theory.  This is to say that Rawls assumes there is no independent theory of justice outside of facts, and that we must use facts to construct a theory of justice.   Rawls has created a process that he believes to be a just process, which he calls pure procedural, and has a fair starting point.  He says that pure procedural justice, “obtains when there is no independent criterion for the right result:  instead there is a correct or fair procedure such that the outcome is likewise correct or fair, what it is, provided that the procedure has been properly followed” (Rawls, pg. 75).  This is important because then whatever principles that are generated from this process will be fair and just since its beginning was fair and the process was just.  

In the beginning of Rawls’s process, we have the initial position.  The initial position is where people will discuss what principles of justice we ought to have for a society.  We have considered judgements that we will appeal to in order to decide if we think the initial position is fair.  From the initial position, our people will generate the principles of justice, and we then evaluate the effects the principles that arise will have.  We also appeal to considered judgements here to decide if we think the results of the principles are outcomes we are willing to accept.  

We then go through a process called reflective equilibrium to come to an initial position we would accept as fair and an outcome we can agree is just.  Reflective equilibrium consists of us going through the process, and then if we find the outcome’s something that doesn’t align with our considered judgements, then we go back up to the initial position and tweak it so we get different principles and different outcomes.  Then we continue to do this until we find an initial position we agree to, which in principles that bring forth outcomes we can accept.  

For Rawls specifically, he calls his initial position the original position.  In this position, the people there are self-interested, mutually disinterested, and rational.  They are also behind what Rawls calls the veil of ignorance.  This means that they don’t know any particulars about their own personal status or skills.  They also don’t know anything particular about the society they will be in once they generate their principles of justice.  They only know very basic things about human psychology and society in general.  Rawls thinks this original position will pass our considered judgements at the top, and that the principles will generate outcomes we will accept and pass our considered judgements at the bottom.  It will also generate his two principles of justice, which the second one is referred to as the difference principle and is descried this way, “Social and economic inequalities are to be arranged so that they are.….to the greatest expected benefit of the least advantaged” (Rawls, pg. 72).  Nozick will come back with rejection of Rawls’s original position, and that the difference principle will generate outcomes that will offend our considered judgements and so we must also reject this principle.  

Nozick’s theory is simpler and more straightforward.  He calls his theory the entitlement theory and says that the complete principle of distributive justice would say that a distribution is just if everyone is entitled to the holdings they have under that distribution.  A distribution is just if it comes from another just distribution through legitimate means (Nozick, pg. 151).  When it comes to the justice of holdings that one may have, the subject is divided into three main topics.  The first is the principle of justice in acquisition.  This principle deals with how one comes into possession of something that is not possessed by anyone else.  The second topic is the principle of justice in transfer.  This deals with descriptions about how possessions are able to be transferred from one person to another.  With these two principles in mind, Nozick says that as long as an acquisition of holdings is in accordance with these two principles, then the person is entitled to that holding.  He also notes that this exhaustively covers the subject of justice in holdings (Nozick, pg. 151).  The third topic is the rectification of injustice in holdings.  This principle is meant to deal with situations where someone acquires holdings in an unjust way by not adhering in some way to the first two principles.  We must now figure out how to deal with this injustice and rectify the situation.  

A crucial objection that Nozick has to the difference principle is that it is a patterned or end-state principle.  This is to say that the difference principle is trying to make society look a certain way.  End-state principles judge the justice of a society based on how a society looks.  They aren’t particularly concerned with the ways in which a society came to be ordered a certain way when it comes to judging whether it’s just or not.  Rather, justness of a society is to be seen solely based on how it is ordered, if it doesn’t look like the pattern or end-state that a principle purports to be just, then the society is therefore unjust and must be reorganized to fit the desired pattern.  

Nozick’s grievance with this is that, “To maintain a pattern one must either continually interfere to stop people from transferring resources as they wish to, or to continually (or periodically) interfere to take from some persons resources that others for some reason chose to transfer to them” (Nozick, pg. 163).  Nozick’s issue with an end-state principle is that it continually interferes with someone’s liberty to act as they wish (as long as it’s legal), and it violates one’s property rights by taking what rightfully belongs to them.  Any principle that does this should not be considered to be following justice as described by the entitlement theory.  

In contrast, Nozick’s entitlement theory is a historical principle; whether a distribution is just depends upon how it came about.  This theory doesn’t suppose that there is any specific pattern or way a society should look or be ordered regarding resources.  This means that as long as just processes are being followed, the end result, no matter how it looks, will be just because it came about through just acts.  Nozick’s claim is that the difference principle is an end-state principle and not a historical principle and therefore should be rejected as applying to a theory of justice.  Nozick states that even though the difference principle is to apply to ongoing and continuing institutional processes, it is still an end-state principle (Nozick, pg. 208).  There is a specific pattern that the difference principle is working to bring about, and only a society that is ordered in a way that looks like the principle will be considered just.  Nozick claims though that his three principles of justice (in acquisition, transfer, and rectification) are process principles of distributive justice and don’t look to bring about any specific pattern criterion to meet.

The criticism of Rawls’s theory on this issue is deeper than that though.  His principles are formed by people following a just and fair procedure.  Therefore, any principle that comes about from it, assuming the procedure was followed faithfully, will be a just principle.  If this is the case, and the difference principle would emerge through a just process, the principle must be just by definition.  The peculiarity that Nozick notes is that Rawls’s theory uses processes to bring about his principles, but then brings about principles that look to find a pattern for society.  The dilemma Rawls is in is that he thinks his principles are so great because they come about through a process, but this process is unable to generate process principles.  And if processes aren’t all they are cracked up to be, then the whole logic we used to generate the principles is unfounded and should make us seriously question the quality of any principles that come about through a process (Nozick, pg. 208).

Nozick is extremely suspicious of the difference principle for other reasons as well though.  Nozick thinks this principle fails when we look at how it would play out between a worse-endowed group and a well-endowed group.  Nozick contends that this principle isn’t reasonable in the way Rawls thinks it is, and that the well-endowed group has grounds to complain about his principle.  Nozick points out that with general cooperation between the two groups, the worse-endowed group has more incremental gain than the well-endowed group, when the well-endowed make accomplishments of great economic advantage (Nozick, pg. 193).  

He imagines a situation where the worse-endowed come to the well-endowed and explain how everyone benefits when they work together, so in order for them to work together, the well-endowed group better adhere to their stipulations where they get as much as possible (Nozick, pg. 195).  But now Nozick asks, why can’t the well-endowed come with the same stipulations and propositions?  Why is it that the worse-endowed get the right to bring up this proposition but not the well-endowed?  Nozick pulls an excerpt from Rawls here that is supposed to answer this question and show us why the well-endowed don’t have grounds to complain about such a situation.  

In the excerpt, Rawls suggests that the well-being of each group depends on a necessary scheme of cooperation in order to achieve a satisfactory life.  Next, we can only expect everyone to willingly cooperate if the terms are reasonable.  Thus, the difference principle seems to be a reasonable basis for which the fortunate could expect other people to willingly adhere to when collaboration is a necessary condition for the good of all (Nozick, pg. 195-196).  Nozick thinks this proves nothing.  If the well-being of everyone is contingent upon everyone cooperating, then the well-endowed group can make the similar proposition or threat and tell the worse-endowed that they won’t cooperate with them unless they make sure they are in the best possible position.  

Nozick comments here on the ambiguity of what should be considered reasonable, and how this lack of clarification leaves room to doubt the difference principle.  With this being said, Nozick thinks the well-endowed person still has grounds to complain about the difference principle and reasons to reject it.  As we will see later, the difference principle is predicated on a theory that is supposed to be “deeper” than an entitlement theory, and therefore is beyond such an objection.  This will lead us to the main disagreement around how we should handle morally arbitrary factors.

Rawls has a response to Nozick though.  When introducing his two principles of justice, Rawls states, “These principles primarily apply, as I have said, to the basic structure of society and govern the assignment of rights and duties and regulate the distribution of social and economic advantages” (Rawls, pg. 53).  Rawls could reply back to Nozick by saying that Nozick is using the difference principle inappropriately.  Nozick is using it in a personal setting, when the principle is only to be applied to the institutions of a society.  So, Rawls could contend, even if Nozick’s use of the difference principle would result in the well-endowed having grounds to complain, the difference principle is being used inappropriately and isn’t actual grounds for rejecting it.  

Nozick wants to challenge this idea and suggest that we should be able to apply the difference principle to micro cases and not just macro cases.  When we only look at the macro cases of applying a principle, there can be too much going on for us to adequately analyze exactly how the principle is functioning.  We may then see that when we apply the principle on a micro scale and can isolate certain important factors, then we can judge the principle more fairly.  Nozick states that one major path to one changing his intuitive judgements on a principle that applies to a macro scale, is to see what sort of principles, surprising principles at that, would be founded by using the principle on the micro scale.  This is the reason for us testing principles on the micro scale (Nozick, pg. 206).  

This is why Nozick should feel justified in applying the difference principle to the personal test he gave it earlier.  Nozick anticipates the response that he would most likely get from Rawls though.  Rawls would argue that any micro test would have the idea of entitlements built into them.  If this is the case, then Rawls theory would overtly violate these entitlements.  However, the difference principle is supposed to operate at a level beyond entitlements, and so any test that includes entitlements in them is an illegitimate test and is mistaken (Nozick, pg. 206).  This is where we see how the difference principle is founded on a notion to operate at a level that is to allow it to be unaffected by the morally arbitrary facts that are bound up in entitlement theories, which must be wrong because they are affected by morally arbitrary facts.  

Finally, we can start to see why the handling of the morally arbitrariness of natural talents and social class is at the heart of all disagreement.  Rawls makes it clear that his theory is an attempt to eliminate morally arbitrary conditions when coming up with a conception of distributive justice, “By choosing these positions to specify the general point of view one follows the idea that the two principles attempt to mitigate the arbitrariness of natural contingency and social fortune” (Rawls, pg. 82).  People’s success in life should not be related to these sorts of morally arbitrary advantages.  

You have no effect on what talents you are born with and what social class you are born into, so you shouldn’t be advantaged or disadvantaged because of this.  If we can’t eliminate them, we need to get rid of them as much as possible.  Entitlement theory doesn’t address morally arbitrary facts at all when discussing distributive justice and so will inevitably involve these morally arbitrary facts.  So, from the conception of Rawls’s theory, he is working to eliminate natural talents and social class, which results in him neglecting any possibility that an entitlement theory could be the correct theory of justice.  

Another reason why entitlement theory can’t even be considered in Rawls’ process is because the original position puts people in a position where they will only accept end-state principles of distribution.  If that’s the case, entitlement theory can’t be considered because it isn’t an end-state principle and those in the original position won’t even think about it.  The original position with the veil of ignorance, and the difference principle, are the main modes for protecting against unfair advantages from natural talents and social class.  Being behind the veil of ignorance, entitlement theory can’t even be thought of because of the peculiar position you are in to protect yourself from being in the worst possible situation.  Hence, you will want a principle that will protect those in that position, thus the original position would produce the difference principle.  We now see how Rawls’s theory is set up to mitigate the effects of natural talents and social class, and how in doing so it automatically declares any sort of entitlement theory as being incorrect.  If Nozick’s theory doesn’t deal with the morally arbitrariness of natural talents and class, how does he respond to Rawls’ attempt to eradicate them?  

Nozick now approaches the attempt of eliminating all morally arbitrary factors in reaching justice.  He thinks the argument for this attempt rests on an assumption that people ought to be equal, unless there is a weighty moral reason for violating equality.  But to Nozick that’s all it is, an assumption, an assertion, “Why is equality the rest position of the system, deviation from which may be caused only by moral forces?  Many “arguments” for equality merely assert that differences between persons are arbitrary and must be justified” (Nozick, pg. 223).  Later, down the page he says, “When there is no one doing the treating, and all are entitled to bestow their holdings as they wish, it is not clear why the maxim that differences in treatment must be justified should be thought to have extensive application.”  Nozick is saying that there isn’t any good reason to suppose that equality is the standard and that there must be justification when deviating from it.  

If I have an extra ticket to a concert and invite my mom over my dad (holding fixed they are to be equal in every relevant way), thereby making them unequal, why must I have a justification for choosing one over the other?  It may be that my decision to choose one over the other is completely arbitrary and unrelated to any relevant moral facts about each one.  This doesn’t mean that my decision to choose one over the other is somehow unjust because it is arbitrary.  I should get the choice to do what I want with my holdings as long as it follows the entitlement theory.  

So, if a person can make decisions based on morally arbitrary reasons and it not be unjust, why can’t nature do the same?  Given the last example, how can it be said that one person receiving some talents that someone else doesn’t receive due to nature can be unjust because of the morally arbitrariness of it.  If it can’t be said to be unjust, then why must it be mitigated against just because it is morally arbitrary?  Is it because equality should be upheld unless a morally weighty factor allows for a deviation from equality?  However, we have just shown that this is just an assertion and there’s no good reason to accept this assumption.  

Rawls is also swayed by the thought that since natural talents aren’t deserved, then what you gain from them you can’t deserve or own.  Nozick has a flat denial of this thought on pg. 225, “It is not true, for example, that a person earns Y only if he’s earned whatever he used in the process of earning Y.  Some of the things he uses he just may have, not illegitimately.  It needn’t be that the foundations underlying desert are themselves deserved, all the way down.”  Nozick insists that whether or not natural assets are arbitrary from a moral point of view, people are still entitled to them and what comes from them.  

Lastly, Nozick wants to challenge some circumstances of the original position, mainly the thickness of the veil of ignorance that hides people from knowing their own natural endowments.  Nozick wants to ask, if we want a veil this thick, then why do the people in the original position know they are rational?  If the original position is to make those in it unaware of anything they possess that is arbitrary from a moral point of view, then they won’t be able to know anything at all about themselves.  This is because all the physical facts that go into making you who you are, are arbitrary from a moral point of view, but then give rise to the rest of who you are, like your rationality. 

Nozick suggests that rationality itself comes about from a process that is arbitrary from a moral point of view, and so if we want to be consistent, then people must be ignorant of the fact that they are rational.  Nozick points out though that there’s an ambiguity in saying something is morally arbitrary because, “It might mean that there is no moral reason why the fact ought to be that way, or it might mean that the fact’s being that way is of no moral significance and has no moral consequence.  Rationality, the ability to make choices, and so on, are not morally arbitrary in this second sense” (Nozick, pg. 227).  If rationality escapes exclusion because of this reason, but is still morally arbitrary in the first way, then we must also allow natural assets to escape exclusion as well because they are not morally arbitrary in the same way as rationality.  Rawls may respond back to Nozick by saying that rationality is a basic part of human psychology so that’s why those in the original position are able to know it, whereas knowing natural endowments and social class has nothing to do with knowing basic human psychology or general facts about society.  

In conclusion, we can see that all of Nozick’s disagreements stem from his differing opinion on how to handle these morally arbitrary facts.  His main criticisms were aimed at the difference principle and the original position.  Ultimately, his criticisms should be focused primarily on the original position, because it is from there that the principles of justice, thus the difference principle, are generated.  He doesn’t seem to provide arguments against Rawls’s structure of constructing justice, but mostly with the specific conception of the original position.  Maybe if the veil of ignorance was a little thinner to allow more knowledge about oneself and allow for consideration of the entitlement theory, then Nozick might be more willing to work within the Rawlsian construction of justice.  Or maybe this would only prove to show after going through reflective equilibrium, Nozick would find other aspects of the original position troublesome.