Theory of Entitlement and its Application to North American Indians` Claims


Theoryof Entitlement and its Application to North American Indians` Claims

Theoryof Entitlement and its Application to North American Indians` Claims

Issuespertaining to rights and possessions have always attracted immensecontroversy from varying quarters in both the conventional and thecontemporary human society. The controversy rises up particularly inthe fact that it is expected that resources would be divided amongthe individuals who have a right to them in a fair and equitablemanner. Unfortunately, it is well acknowledged that there arevariations regarding what may be deemed equitable or fair todifferent parties. Indeed, since time immemorial, humanity has alwaysgrappled with numerous cases of injustices carried out on groups ofpeople with regard to the items to which they are entitled or theamount of resources that they have a right to possess. In essence, itmight be rightly said that the manner in which resources in aparticular society have been divided up among the stakeholders is aclear depiction of the level of justice and equitability that thesociety upholds. Numerous scholars have sought to examine the conceptof distributive justice with Robert Nozick being one of the mostpopular.

Inhis book “Anarchy,State and utopia”,Nozick notes that the concept of distributive justice imbues thepresumption that there exists some mechanism or thing that utilizes aparticular criterion or principle to doll out some resources.Nevertheless, it should be noted that there exists no centraldistribution where a particular group or individual is entitled toregulate the every other resources, jointly making decisionsregarding the manner in which they are to be divided out ordistributed. The resources that a particular individual obtains, heobtains them from other individuals as gifts or in exchange of otheritems. In free societies, different people or entities controlvarying resources, with new holdings coming up out of voluntaryactions and exchanges of individuals.

Inhis “Entitlement Theory”, Nozick primarily concentrates on themanner in which property is distributed and states that justicerevolves around three ideas. First, there is the justice inacquisition or the original acquisition of resources and theappropriation of the unheld items (Nozick, 1974 149). This revolvesaround the manner in which the unheld items may have come to be held,the processes or process through which the unheld things can be held,the things that could be held via the processes, as well as themagnitude or scope pertaining to the resources that come to be heldvia a particular process among other things. The second idea revolvesaround the transfer of holdings from a particular entity to another(Conway, 1990 2). The major questions, in this case, are theprocesses through which an individual may transfer the holdings toanother person, as well as how an individual can acquire a particularitem from another who possesses it. Nozick underlines the fact thatunder this category, there exists some general descriptionspertaining to voluntary exchange, fraud, gift and reference tocertain conventional details that are in a particular society(Nozick, 1974 149). The third idea is the rectification of justicewhich revolves around the manner in which something would be restoredto its rightful owner in instances where there was injustice in itstransfer and acquisition.

Perhapsone of the most fundamental assertions of Nozick in the theory ofjustice is the notion that the just nature of a distribution isdetermined by the manner in which it came to be. A completedistributive justice principle would underline the notion that adistribution would be deemed just in instances where every person hasthe right or is entitled to the things that they possess within thedistribution. On the same note, a distribution would be just ininstances where it emanates from a just distribution throughlegitimate means, which are clearly specified through the principleof justice in transfer (Nozick, 1974 150). In addition, it may beacknowledged that the notion that a situation could have emanatedfrom a just situation through justice preserving means would notimply that the entire distribution is just. This means that the factthat the victims of a thief could have voluntarily availed the giftsto him would not mean that the thief is entitled to the ill-gottengains. In essence, justice in the possession of a particular item orresource is historical in the fact that it is dependent on what couldhave happened.

Ofcourse, it is well acknowledged that it is not in all cases thatpossessions and holdings are acquired in the appropriate way. Indeed,there are instances where resources are acquired through fraud ortheft, enslavement pr even the seizing of particular resources andprevention of its rightful owners from enjoying its utility or evenforceful exclusion of other individuals from competing in instanceswhere the items are being exchanged from one party to the other. Thismeans that the holdings would be acquired in ways that are notallowed by the principle of justice (Nozick, 1974 153). This bringsto the fore the concept of past injustices, which are often cateredfor by the third idea of entitlement theory where injustice inpossession would be rectified. Nozick states clearly that he is notaware of any theoretically sophisticated or thorough treatment ofpast injustices. Nevertheless, the principle of rectification wouldmake use of historical information pertaining to the previousinjustices and situations, the information regarding course of eventsthat flowed from the injustices to the present, and gives rise to adescription pertaining to the holdings in the society (Nozick, 1974153). This principle would make an estimate of the subjunctiveinformation pertaining to how things could have been if the injusticehad not been committed. In instances where the actual description ofthe holdings is one of the outcomes that the principle generates,then one of these outcomes have to be realized.

Ofcourse, Nozick’s theory becomes immensely worthy of a responsegiven the monstrosity of some of the assertions that he makes. It maybe acknowledged that his theory makes a proper proposition where pasttransgressions pertaining to indigenous property rights would berectified. As much as this is usually attained via affirmative actionschemes or fiscal compensation, Nozick sees these forms ofcompensation as illegitimate. However, a question comes up regardingwhat an individual who has acquired particular possessions in a justmanner would be required to do in instances where the possessionswere originally or initially unjustly appropriated. Of course, thismeans that his entitlement to property would also be violated ifNozick’s theory is followed. This tension is considerablyunresolved, in which case the theory does not offer a clear guidelineregarding the manner in which such historical injustices would besolved.

Scholarshave particularly underlined the notion that some of the assertionsrender the theory invalid. Indeed, Cohen has noted that Nozick’sassertions pertaining to the minimal state and rights would beinvalid as long as the historical injustices remain unresolved. Itmay be noted that historical injustices are a violation of propertyrights. In instances where individuals allow property rights toremain compromised, there would exist no moral objection to furtherinfringement of property rights particularly via taxation. Inessence, the minimal state would not be the most extensive andjustifiable state.

Inaddition, there exists issues with the utilization of Lockeanprovisions by Nozick. It is acknowledged that Nozick considered itjust for an individual to obtain disproportionate shares of the globeso as to avert the possibility of the tragedy of commons as far asnobody was made worse off. This is a contradiction to the moralequality themes that were demonstrated in Nozick’s categoricalimperative. Scholars have acknowledged that the acknowledgement ofother people’s moral equality creates the presumption that theconditions are also equal, which may not be the case if individualsare justly allowed to have disproportionate shares of the globe. Inaddition, this provisio would not be impervious to coercion. Forinstance, in cases where an individual has to decide between starving(A) and minimal wage (B). Based on the assumption that thetransactions that resulted in this situation were completelylegitimate, Nozick would opine that the transaction was above board.However, it goes without saying that if the individual chooses towork for the minimum wage rather than suffer starvation, thetransaction would be rendered unjust indirectly particularly giventhe fact that it was forced on him. Nozick, on the other hand, feelsthat the selection of a feasible over an unfeasible action would notmake the choice illusory. Nevertheless, simple commonsense woulddemonstrate that the choices were extremely limited for theindividuals since no one would choose to starve. This brings to thefore the fact that acting on provisio would be a violation ofNozick’s theory. Indeed, the intertwining of the provisio to histheory is self contradictory as it creates the picture of a uniquelyegalitarian image of minimal state, which contrasts the sentimentspertaining to a morally defensible egalitarian imperative. Thereexists no clarity regarding the manner in which the minimal statewould respond to the conflict between property rights acquisition andindividual liberty.

Onthe same note, one may find fault in Nozick’s assertions pertainingto transfer. He states that just situations would be the result ofjust actions, which may not always be the case. Chia (2010 141)gives an example of an instance where an individual sells himselfwillingly to slavery. There would be no violation of justice intransfer but the result would be the self-ownership of the freeindividual would be violated. There seems to be no case by which theminimum state could react in this case given that the new slave wouldnot have violated any principles and seeking to free him from theslave master would be a violation of the rights of the owner to havethe slave. This means that Nozick’s theory would not remain just inevery other case, in which case the principles on which he bases theminimal state would not be completely appropriate.

Similarly,Nozick’s theory seems extremely controversial as it may offer ajustification for extremely unequal distribution of property that hasno respect for what individuals deserve or need, or even give anyform of priority to individuals that are worse off. Going by Nozick’sstatement, redistribution would be unjustified except in instanceswhere it seeks to rectify previous injustices. However, his defenseof property rights is challenged by Rawls. A large proportion of thepossessions of individuals are the result of their natural talents ofsocial positions, which are seen as morally arbitrary. Essentially,any ownership inequalities are unjust. In addition, the rights thatindividuals have to property can never be decided prior to makingdecisions on the principles of justice (Lacewing, 2001 4).Individuals would not have a right to the earnings that result fromtheir talents but only to the proportion that they keep in line withthe principles of distributive justice. Of course, Nozick assertsthat the abilities and talents of individuals are theirs, in whichcase they are entitled to keep and enjoy the things that theabilities and talents gain for the. This means that any forcibleredistribution of the things that they earn from them would bedisrespectful or a violation of their autonomy. However, Rawls notesthat even in instances where individuals own themselves, it would notmean that they have the right to do what they want with all otherpeople’s properties. Essentially, it becomes imperative that anyreinterpretation of the justice in transfer incorporates somerestrictions on the property rights.

Perhapsone of the major areas where Nozick’s theory of entitlement appliesis with regard to the North American Indians claims. It isackwnoeldged that an immense deal of land was unjustly wrested byfraud and force from individuals (Indians, Native Americans) thatoccupied it prior to the coming of the Europeans. Indeed, so violatewas the wrestling of these pieces of land from the Native Americansthat they were either subjugated or massacred, with the survivorsbeing displaced from the places that they had called home since timeimmemorial, and relegated to shrinking reservations. More often thannot, the immense theft of natural resources (land) and coercion ofthe Native Americans to give it up is usually seen as neutral issueof the past that is inconsequential on the present. Of some scholarshave opined that the disadvantaged and socially weak position of theNative Americans is a representation of a wrong that necessitatesthat the current society makes right or correct. This would,essentially, involve giving back the land to the Native Americans.This assertion has obtained immense support from the scholars such asNozick, whose theory of entitlement underlines the notion that anyresource or item that has been obtained through unjust means would,in itself, be unjustly possessed even when its ownership has movedfrom one generation to another or one owner to another.

Ofcourse, it is acknowledged that the Native Americans were the firstinhabitants of the land, in which case the land was theirs prior tothe occupation or invasion by the Europeans. During and after theinvasion, these pieces of land were taken away from them illegally.This would mean that the current owners do not have a properlyfounded right to have the land that is in their hands. In an idealsituation, such pieces of land would be returned to the NativeAmericans who are the rightful owners. This is the redistributivejustice, in line with Nozick’s theory. While this is a difficultand impractical decision, it comes off as the easiest way of rightingthe original wrong that was visited upon the native Indians (Lyons,1977 358). As expected, this line of thought has elicited immensecontroversy and objection, with individuals stating that more than200 years of history cannot simply be wished away. Indeed,redistributive justice necessitates that a trail is followed from thecurrent owners to the previous ones all the way to the originalowners, who are the natives.

Whilethis may be the case, such assertions tend to ignore a number offacts. First, the land is currently possessed legally through buying,gift or inheritance by the current owners. As much as the original“owners” may have been dispossessed by the Europeans in a violentmanner, it would be a violation of the current owners’ rights todispossess them of the same without proper compensation too. Inaddition, Simmon’s (1995 152) states that in instances where anindividual is the first settler of an enormous uninhabited territory,where he builds a home and eventually cultivates the land necessaryto support his way of life, the settlers that come after him would beviolating his property rights if they went as far as seizing the landwhile there exists sufficient and equally appropriate resources andland for them. It is noteworthy that the Native Americans had notoccupied every other part of the North America. Indeed, someEuropeans did not dispossess the Native Indians of their land, ratherthey simply settled on the uninhabited areas. Essentially, the factthat the initial Europeans made the lives of the Natives hard doesnot follow that every other piece of land occupied at that time wasunjustly possessed.


Chia,G (2010). No Man an Island: Refuting Robert Nozick`s LibertarianPolitical Philosophy. Cross-sections,Volume VI

Conway,D (1990). Nozick’s Entitlement Theory of Justice: Three CriticsAnswered. PhilosophicalNotesNo. 15 (Conway, 1990)

Lacewing,M (2001). Rawlsand Nozick on justice.New York: Taylor &amp Francis Group

Lyons,D (1977). The New Indian Claims and Original Rights to Land. SocialTheory and Practice4 (3):249-272

Nozick,R (1974). Distributive Justice. In “Anarchy,State and Utopia”.New York: Basic Books, Inc

Simmons,J (1995). Historical Rights and Fair Shares. Lawand Philosophy,Vol. 14, No. 2, pp. 149-184

Nozick’stheory of entitlement explores not only the possessions of anindividual but also the manner in which he or she has obtained thesame. Essentially, it states the grounds on which an individual wouldbe deemed to have obtained items justly or where a person would bedeemed to be the rightful owner of certain resources. It is notedthat even in instances where individuals obtain resources in a legaland justifiable manner, they would still not be deemed to be therightful owners of the same if the resources had not been justlyobtained. This applies squarely to the case of Native Americans whoseland and natural resources were violently taken away from them afterthe invasion of the continent by the Europeans. Justice, or in thiscase, redistributive justice, would entail giving back theseresources to the rightful original owners so as to cover up for thehistorical injustices that were visited upon them. This is, with nodoubt, an extremely herculean and practically impossible thing to do.Indeed, the basis for the same may be questioned particularly giventhat it would be difficult to trace the rightful owners of the piecesof land or even their generations given that the societies at thattime were pretty much traditional in nature. Further, not all thesepieces of land had been obtained in such a manner as there are othersettlers who came later and settled on areas that were uninhabited.The simple fact that the Native Americans were in these areas doesnot automatically mean that they were the rightful owners of alladjacent pieces of land.