condition."05 He maintains that the alternative is to stipulate the
socioeconomic rights first and then try to fit property entitlements
around them, and he says in the long passage I quoted that no serious
attempt has been made to state this reverse theory.36 In fact, Nozick's
own view has certain features that involve exactly the alternative
structure he is referring to here. Nozick, like John Locke before him,
believes that the initial acquisition of property rights must not be
conducted in a way that is indifferent to the predicament of needy
individuals who might be constrained by the rights in question. Nozick
is committed to the following proposition, as a proviso qualifying his
account of the acquisition of property:
A process normally giving rise to a permanent bequeathable property right in a
previously unowned thing will not do so if the position of others no longer at
liberty to use the thing is thereby worsened.37
What is this, if it is not a statement of what Nozick called the reverse
theory? It gives priority to the right not to have one's material situation
worsened, whether that situation consists in holding property rights or
just in having access of some kind to the resources needed for a decent
life. It gives these rights priority in exactly the sense that the reverse
theory is supposed to give priority to socioeconomic rights: property
entitlements must work around them, and no such entitlements are
recognized if they are incompatible with these rights.
Nor is this an inadvertent slip on Nozick's part. Almost all
philosophical defenders of private property acknowledge the need to
develop principles for the acquisition and use of property that respect
each person's fundamental right to derive sustenance from this world
35. Id. at238.
36. Id. In fact some philosophers have toyed with versions of such a reverse
approach. In Property Rights and Interests, Virginia Held compared acquisitive
economic activity to a game, "where winners and losers compete on friendly terms as if
engaged in a sporting event." Virginia Held, PropertyRights andInterests, 46 Soc. RES.
550, 577 (1979). The idea was that winners are allowed to keep their winnings and
"losers may prefer having had a chance to play the game, and especially having a chance
to play again and win, than to . . . be assured all along of an even apportionment of all
proceeds." Id. But Held did not think that this game-playing could trump
socioeconomic rights:
Economic justice is a serious matter. While those with moral rights to decent
lives are deprived of these rights, playing games is not only frivolous but
immoral. However, if such rights were respected .. . and if, on utilitarian grounds,
playing economic games could be justified in terms of the maximization of
interests, well then there might be nothing wrong with capitalist games
between consenting gamblers .... But first, the children ought to be fed.
Id. at 579.
37. NOZICK, supra note 10, at 178.
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