By: Lana Maki
Affirmative action is a controversial topic. Passionate debate and legal action have shaped its evolution since its appearance under President Lyndon Johnson’s Executive Order 11246. The Stanford Encyclopedia of Philosophy defines affirmative action as “positive steps taken to increase the representation of women and minorities in areas of employment, education and business from which they have been historically excluded.” Selection for jobs and placement in educational institutions based upon race or gender is among the most controversial means of its implementation.
Discussions of the ethics of affirmative action are usually laced with vocabulary like “oppression” and “discrimination”, leaving those who ascribe to philosophies that do not relate these terms to justice or liberty to discard serious consideration of whether its practice is justifiable. Libertarians, in particular, may be expected to object to affirmative action on these grounds. Through the following argument, I will illustrate that, surprisingly, the practice of affirmative action and, more specifically, selection for placement in public educational institutions and government jobs based upon race and gender, can be evaluated and successfully supported on libertarian grounds. I will use the foundation laid by Robert Nozick, the “most well-known contemporary advocate” for libertarianism, in Anarchy, State, and Utopia to demonstrate this. Though I do not assert that affirmative action is the only or the ideal means of following Nozick’s principles of justice to their end, it is certainly one defensible mode of doing so while involving no rights violations.
Nozick explains that the form of a society’s distribution results from “many individual decisions which the different individuals involved are entitled to make.” The justness of a distribution is determined by an adherence to the following definition of justice in holdings; first, one who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding. Justice in acquisition is judged via an account of John Locke’s proviso on appropriation: One may justly come to possess a holding so long as there is enough and as good left in common for others. Second, one who acquires a holding in accordance with the principle of justice in transfer is entitled to that holding. Nozick explains this principle further by enunciating impermissible “modes of transition from one situation to another” which include stealing from others, defrauding others, enslaving them, “seizing their product and preventing them from living as they choose, or forcibly” excluding “others from competing in exchanges.” Third, one is entitled to a holding only by repeated applications of the principles of justice in acquisition and transfer. These principles are meant to promote individual liberty while protecting against rights violations.
There are numerous historical instances of violations of both of the principles of justice in holdings. I will discuss only two here: The enslavement of African Americans by United States citizens and the forced exclusion of women from competing in market exchanges as well as the confiscation of the products of their labor.
The Virginians of the Jamestown colony of the early 1600s found black slavery to be the solution to their desperation for laborers to grow the corn and tobacco they needed to survive. By 1800, it is estimated that “Africa lost 50 million human beings to death and slavery in those centuries we call the beginnings of modern Western civilization, at the hands of slave traders and plantation owners in Western Europe and America.” Throughout their enslavement, their labor and the goods they produced were seized by their owners: Owners, in “the frenzy for limitless profit,” were driven to enslave blacks for the monetary incentive they gained from such an injustice.
The historical injustices committed against women, exemplified by their exclusion from the market, are also clear. Females living in the colonies in the early 1600s carried with them ideas from England, such as those espoused in this portion of a document entitled The Lawes Resolutions of Womens Rights in regards to property: “Besides absolute possession of his wife’s personal property and a life estate in her lands, the husband took any other income that might be hers. He collected wages earned by her labor . . . Naturally it followed that the proceeds of the joint labor of husband and wife belonged to the husband.”
In the case of women and the case of Africans cited above, the principles of justice in holdings (in particular, the principle of justice in transfer) were clearly violated. Nozick explicitly states that seizure of the products of another’s labor is an impermissible mode of transfer. Clearly, women during the early 1600s had the products of their labor apprehended as did African slaves brought to the Americas. It follows that these women and slaves were also excluded from living as they would have chosen due to these injustices. They were excluded through these appropriations and, in many cases, through law, from making exchanges in the market; certainly, throughout the early 1600s in the colonies “it remained rare for women to participate openly in public affairs” and it would be centuries before African Americans were given any public rights whatsoever.
Upon historical examination, one will inevitably discover that the current distribution of holdings in the United States has been profoundly effected by repeated historical injustices (as defined by the principles of justice in holdings) committed against these and other groups. The question inevitably follows: How are violations of the principles of justice in holdings, including the two examples I have just fleshed out, to be dealt with by libertarians?
Nozick explains that if an appropriation violates the proviso, one must compensate the others involved so that their situation is not worsened. Likewise, one must compensate the others involved if a transition is made unjustly. However, situations arise, such as the historical cases discussed above, in which the existence of past injustice is evident yet the original offenders are not available to compensate for these violations. Compensation in the cases discussed is not possible as those who directly committed the offenses have long been dead as are those whom the offenses were directly committed against.
Situations such as these are addressed through Nozick’s principle of rectification. An explanation of the holdings in a society is found through the use of historical information about previous situations involving injustice “and information about the actual course of events that flowed from these injustices, until the present.” In these cases, Nozick advocates using the “best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred using the expected value)” if the injustice(s) had not transpired. If the actual account of holdings in a society is not one of the accounts yielded, then, through some means, one of these accounts must be realized.
It is difficult to determine with any precision what would or might have occurred if the injustices against women, African Americans, and other groups had not taken place in our society. Currently, women and racial groups are underrepresented in many educational institutions and occupations. For example, for the academic year 2007-08, of those earning a bachelors degree, 71.8% were identified as white while only 9.8% were identified as black. While educational statistics demonstrate that females are much better represented than this, in terms of employment, women are overrepresented in lower wage earning occupations and underrepresented in higher wage earning occupations as compared to men. Indeed, although “women’s presence in the professions has increased in recent years . . . they are still a numerical minority in many of the most senior positions.”
In terms of a plausible estimate of what might have occurred had these aforementioned historical injustices not taken place, I argue that we can safely assume that these groups, at the very least, would be represented in occupational positions and public educational institutions in more equal proportion to their white male counterparts. I have in mind affirmative action as a means of realizing this more equal distribution; if I am correct, libertarians will have no objection to these policies aimed at rectification. I will now explain the advantages of affirmative action as a means of rectification and refute some of the objections one might raise.
To start, some might object to the argument I have laid out thus far, contending that the current distribution is a result of innate inequalities in intelligence and capability between genders and races. This is a very controversial stance and I will not attempt to refute it at any great length here. Indeed, one can challenge this point on several grounds; for instance, Margaret Andersen argues that “if inequality were an inevitable result of human nature” things like stratification patterns “would not vary across societies to the extent that they do.” Also, the mapping of the human genome system has shown remarkable homogeneity, with racial groups differing “from one another only once in a thousand subunits of the genome.” These issues aside, for the purpose of this essay suffice it to say that I am assuming rough equality in innate capacities between both the sexes and racial groups in my calculation of a plausible estimate. Others are obliged to offer their own estimates and defend them. Regardless of whether it is true that there are innate differences between these groups, current holdings have still been affected by the injustices committed against African Americans and women. Thus, regardless of the shape of one’s estimate, some form of rectification is required as a redress of these historical injustices.
In line with my estimate, affirmative action is a possibility to be taken seriously for several reasons. First, affirmative action is a practical option. This point is illustrated by focusing on the beneficiaries rather than the victims of these past injustices. For example, white males were the predominant historical persecutors in the case of both African American enslavement and female exclusion from the market. An alternative proposal might be made to tax those white males who are descendents of the original persecutors and redistribute that money to African Americans and women who are descendents of the original victims. Unlike the type of affirmative action I am proposing, this sort of redistribution would likely involve abundant difficulties including determining genealogically who the descendents of the offenders and victims are, and the appropriate amount to tax the offenders.
The difficulties of implementing this sort of redistribution aside, punishment of beneficiaries for the injustices committed by their ancestors is clearly objectionable; beneficiaries who have themselves committed no direct wrong would be directly penalized. Likewise, those who would benefit from their penalization may never have been direct victims of injustice themselves. Affirmative action, in contrast, would allot no direct punishment to beneficiaries.
However, one may object to this claim, arguing that those most qualified for the job or educational slot due to things like preparation or experience are more entitled to it than those who are not qualified in these ways; thus, affirmative action directly penalizes the more qualified individuals. I contend that there is no place for this objection from a libertarian standpoint as one may be entitled to holdings, but not to a job or placement in an educational institute. Therefore, allocating jobs or educational slots to individuals based on different criteria than academic or experiential qualification in no way violates said qualified individual’s rights.
Along the same lines, one might object to affirmative action on the grounds that private discrimination is not impermissible for libertarians. Because one can discriminate as one chooses when hiring or accepting applicants to an educational institute, there is nothing inherently unjust about past or present discriminations that have resulted in disproportionate representation of the genders and races. However, I am not discussing here whether private discrimination is just. Indeed, on libertarian grounds, what allows for private discrimination is that it does not violate individual rights. Moreover, I am not proposing that private discrimination be eliminated; rather, I argue that affirmative action should be implemented in the acceptance and hiring processes of public and governmental institutions, leaving private industries alone.
Furthermore, I am not arguing that these groups are underrepresented due to private discrimination. I am arguing that they are underrepresented in relation to the public injustices committed against them; enslavement, seizure of the products of their labor, and forced exclusion from exchanges with others have directly contributed to these groups underrepresentation. When rights are violated, private matters becomes a public affair. These injustices must be rectified, in spite of the possible permissibility of private discrimination.
One might make a different objection: Taxation for affirmative action is akin to seizure of product by the state and is, therefore, unjust on libertarian grounds. However, Nozick argues that funding for minimally permissible functions of the state is acceptable. Protection of the citizens against rights violations is one such acceptable function. These funds would inevitably be found through taxation as expecting individuals to voluntarily provide funds would result in numerous complications and difficulties; for example, some may provide more funding than others and others no funding at all, making their equal protection through said funding questionable.
If the protection of rights is justly fundable through taxes, taxation for the means of ensuring compensation is likewise fundable. The state must ensure this because we cannot expect those who have committed injustices warranting compensation to make such compensations voluntarily. In cases where direct compensation is not possible, rectification is necessary; though no offending party is present to compensate, rectification demands redress of wrongs. If protection against violations of the principles of justice in holdings and assurance of compensation are both justly fundable through taxes, funding for rectification of past violations of these principles is also justly funded through taxes.
One may push the point of unjust taxation further: Even assuming that all members of the society are taxed, one might argue that those not directly benefitting from the program, such as white males, are in effect paying the direct cost of wrongs they did not participate in. This objection seems to defeat my previous conclusion: That affirmative action is a practical option because it does not punish those who, themselves, committed no injustice. However, Nozick’s account of the Lockean proviso on appropriation includes a “historical shadow” in that once it is known that one’s ownership of property violates the proviso, there are “stringent limits” on what one may do with it. Likewise, violating the principle of justice in transfer involves a comparable historical shadow; if unjust acquisition may limit one’s property rights, unjust transfer may also limit one’s property rights. In this way, having unjust holdings not only limits the offender’s property rights but also the property rights of those to whom the offender transfers this property. Therefore, though it would seem that white males in this instance are unjustly paying the direct cost for a past harm, I argue that, for the purpose of redressing these injustices, they are experiencing limits on their property rights due to the stringent limits on their rights to the property transferred to them by their ancestors.
In summary, a consistent libertarian must examine the current distribution, the historical situations that led to the current distribution, and injustices done in them. If the current distribution is affected by unjust acquisitions and transfers, rectification must be implemented.
In the two examples I have discussed, violations of the principles of justice in holdings are clear; both African Americans and women, beginning in the colonies of the 1600s, had the products of their labor seized, were prevented from living as they chose and were excluded from competing in exchanges. Based upon a plausible estimate of what would have resulted had these historical injustices not occurred, affirmative action is one means of redistributing in favor of said estimate. Further, affirmative action is a practical, defensible means of rectification on libertarian grounds. If I am correct and none of these objections succeeds, then libertarians have no consistent basis from which to object to the type of affirmative action I have proposed, making affirmative action a viable means of rectification.
 Robert Fullinwider, “Affirmative Action,” Stanford Encyclopedia of Philosophy. December, 28, 2011, http://plato.stanford.edu/entries/affirmative-action/. (accessed March 19, 2011).
 Julian Lamont and Christi Favor, “Distributive Justice,” Stanford Encyclopedia of Philosophy. September 22, 1996, http://plato.stanford.edu/entries/justice-distributive/. (accessed March 23, 2011).
 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
 Nozick, Anarchy, State, 150
 Ibid., 151.
 Ibid., 175.
 Ibid., 151-152.
 Howard Zinn, A People’s History of the United States 1492—Present (New York: HarperPerennial, 1995), 25-27.
 Zinn, A People’s History, 29.
 Ibid., 28-30.
 Ibid., 105.
 Zinn, A People’s History, 108.
 Nozick, Anarchy, State, 178.
 Nozick, Anarchy, State, 152-153.
 National Center for Education Statistics, http://nces.ed.gov/fastfacts/display.asp?id=72 (accessed March 19, 2011).
 Margaret L. Andersen, Thinking About Women: Sociological Perspectives on Sex and Gender (Boston: Pearson Education, 2006), 123.
 Andersen, Thinking About Women, 115.
 James M. Henslin, Sociology: A Down-to-Earth Approach (Boston: Pearson Education, 2005), 324.
 Nozick, Anarchy, State, 110-118.
 Nozick, Anarchy, State, 180.
Lana is originally from Ishpeming, MI and is an NMU graduate as of this week with a triple major in Sociology, Psychology, and Philosophy. She is currently taking a little time off to check out graduate schools and plans on going next year for Philosophy, specializing in applied ethics. Lana Maki’s essay was the winner of the 2011 Philosophy Department writing prize.