consideration what would ameliorate and what would aggravate an
unjust situation? I do not mean that we must simply sit on our hands
until the theorists of justice laboriously get around to considering
second-best theory. But it is not clear how it is safe to proceed without
someone doing some second-best theory-if only to be sure that the
rights we propose to enforce actually do a good job of capturing what
justice requires in this fraught and terrible situation.
In this regard, Robert Nozick's comments about injustice in the real
world are particularly interesting. Nozick was never prepared to say that
the historical-entitlement critique of equality and welfarism in Anarchy,
State, and Utopia amounted to a defense of actually existing market
institutions, nor would he pretend that the sort of Lockean defense of
property he advocated could go any distance towards legitimizing
contemporary disparities of wealth in, for example, the United States.
On the contrary, he thought it undeniable that contemporary holdings
would be condemned as unjust by any remotely plausible conception of
historical entitlement. (The point of Nozick's argument in chapters 7
and 8 of Anarchy, State, and Utopia was that egalitarians were
condemning the existing distribution for the wrong reason-simply as
unequal-rather than on account of the violence, fraud, expropriation,
ethnic cleansing, and state corruption involved in the history of most
holdings of property in America.) He acknowledged that once actual
historical injustice was established, the burden would fall on the part of
his conception dealing with the rectification of injustice. The ideal part
of Nozick's theory might reject welfare transfers out of hand as
violations of property owner's rights; it might condemn income taxes as
amounting to illicit and coercive seizure of labor from honest workers.
But he doubted whether these condemnations could be sustained once
one started figuring out how to deal with the burden of actual injustice:
These issues are very complex and are best left to a full treatment of the
principle of rectification. In the absence of such a treatment applied to a
particular society, one cannot use the analysis and theory presented here to
condemn any particular scheme of transfer payments, unless it is clear that no
considerations of rectification of injustice could apply to justify it.82
That itself is a remarkable and honest concession. But if we accept it,
we also have to accept the corollary that the schemes of transfer that
seem most obvious to us-as proponents of socioeconomic rights-may
not be exactly (or even approximately) the schemes of transfer that
rectification requires. It may not be easy to say what rectification
requires, but it is worth considering at the very least whether there are
82.
802
NOZICK, supra note 10, at 231.
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