2 Anarchy, State, and Utopia, Basic Books, New York, 1974, p. 233. All page references included in the text of the article refer to this book.

3 It is important to see that this impermissibility depends on conjoining Nozick's moral structure with his moral content. One could, as we will later demonstrate, take his moral structure (the side-constraint structure), conjoin it with a different moral content (an alternative conception of rights), and conclude that redistribution is permissible. Alternatively, one might reject his moral structure in favor of a maximizing structure, retain his moral content (the Lockean conception of rights), and again conclude that redistribution is permissible.

4 Nozick would of course be all in favor of voluntary aid for such people. Failing that, however, he would apparently judge it a morally superior outcome if the cripples and orphans died than if the government taxed its citizens to support them. Nozick says that he hopes to avoid “the question of whether …side constraints are absolute, or whether they may be violated to avoid catastrophic moral horror.” (p. 30n.) How many cripples and orphans would have to die in order to constitute a “catastrophic moral horror“?

5 A Theory of Justice, Harvard University Press, Cambridge, 1971, p. 505.Google Scholar

6 Rawls, pp. 505n.-506n.

7 Is there a natural right to education, on the alternative conception? In most modern societies, the answer is certainly yes, for education is necessary in order to have a reasonable chance of living a decent and fulfilling life in most such societies. But in thinking about this question, we see that the goods to which people have natural rights can vary across time and different societies, on this conception.

8 Some people will balk at the suggestion that liberty is a distributable good. We could satisfy such people by substituting a right to the distributable good of police protection for the right to liberty; only terminological, non-substantive changes would result. We will continue to treat liberty itself as a distributable good, however, for reasons of convenience. While it is not transferable, liberty is distributable in the weaker sense that government policy can directly regulate the amount which people enjoy, and that will be sufficient for our purposes.

9 But note Thomas Scanlon's argument that “establishment of a system of property rights based on free contract means that some people, in order to gain the means to life, have to devote virtually all their productive energies to whatever tasks and pursuits are desired by those who control the goods necessary for life in their society.” (“Markets, Liberty, and the Obligation to Contribute,” unpublished xerox, p. 28. This paper was presented at the Battelle Seattle Research Center conference on Markets and Morals in May, 1974. It is scheduled to appear in the proceedings of that conference, which will be edited by Gerald Dworkin and Gordon Bermant.) He concludes that a libertarian society, contrary to appearance, may indeed involve restrictions on the liberty of some of its citizens. (See Scanlon, pp. 28-29)

10 Scanlon arrives at a similar conclusion from a different direction. He argues that we could justify the restrictions on liberty required by a welfare state to those people whose liberty was restricted, whereas we would be unable to produce a satisfactory justification of market institutions to those whose liberty they restricted. On our alternative conception of rights, the disparity between the relative strengths of the two sorts of justification can be explained by the fact that even those people whose liberty was restricted by the welfare state would not be having their rights violated, while the least fortunate citizens in a libertarian society might well suffer such an outcome. (See Scanlon, pp. 29-31)

11 People do not ordinarily communicate their deepest feelings about each other by eating together. Might the situation have been reversed if sex were necessary for individual survival but food were not?

12 For a different view, see Vlastos, Gregory “Justice and Equality,” in Brandt, R. ed., Social justice, Prentice-Hall, Englewood Cliffs, New Jersey, 1962, pp. 31–72.Google Scholar

13 I wish to emphasize that the argument presented in this paper is intended to show that the alternative conception is compatible with a side-constraint structure. This is of course the moral structure which Nozick favors, and I have tried to suggest that even when the competing conceptions of rights are both incorporated into this kind of structure, the alternative conception emerges both as more consistent with Nozick's own remarks about the moral basis of rights, and as independently plausible. It should be obvious, however, that the alternative conception could be incorporated into other structures as well (for example, it could be incorporated into a maximizing structure). Nozick aside, the question of which structure is best suited to the alternative conception is a separate one, and one which I shall not try to answer here.

14 Notice that a right to police protection would also be liable to indirect violation by overconsumers.

15 The Needle's Eye, Popular Library, New York, 1972, p. 329.Google Scholar