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81 Nw. U. L. Rev. 363 (1986-1987)
Turning Rawls into Nozick and Back Again

handle is hein.journals/illlr81 and id is 371 raw text is: Copyright 1987 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 81, No. 3 NORTHWESTERN UNIVERSITY LAW REVIEW VOLUME 81 SPRING 1987 NUMBER 3 TURNING RAWLS INTO NOZICK AND BACK AGAIN John Stick* I. INTRODUCTION The differences in the political philosophies of John Rawls and Rob- ert Nozick are often attributed to differences in their initial assumptions and methods of argument.1 Nozick himself criticizes Rawls for con- structing the original position'2 in such a way that one cannot seriously consider Nozick's theory.3 Alasdair MacIntyre has stated that Rawls' and Nozick's theories are incommensurable.4 In this Article I will at- tempt to demonstrate that Rawls and Nozick are not incommensurable, and that their disagreements are not attributable to their starting points or methodologies. To show how Rawls and Nozick are commensurable, I will demon- strate how each can argue as convincingly for his own theory from the * Visiting Associate Professor of Law, University of Southern California Law Center; Associate Professor of Law, Tulane University School of Law. B.A., B.S., Michigan State University (1975); M.A. (1977), J.D. (1980), University of California at Los Angeles. I would like to thank Lawrence Alexander, John Dzienkowski, Richard Epstein, Sheldon Leader, Sanford Levinson, and Carol Rose for reading a draft and offering comments and suggestions. I See generally A. MACINTYRE, AFTER VIRTUE 244-52 (2d ed. 1984); R. NozICK, ANARCHY, STATE, AND UTOPIA (1974); J. RAwLs, A THEORY OF JUSTICE (1971). 2 Rawls argues for his theory of justice using a hypothetical situation of equality where individ- uals would jointly choose the principles which will regulate society. This hypothetical situation, which Rawls calls the original position, is the counterpart to the state of nature in social contract theory. Rawls designs the original position to embody our common sense notions of unbiased moral reasoning. He attempts to demonstrate that in the original position, only his theory of justice could be chosen. See J. RAwLs, supra note 1, at 11-12, 17-22; see also infra text accompanying notes 17- 23. 3 As Nozick describes it, Rawls has designed the original position so that end-result principles of justice are fundamental, and entitlement theories like Nozick's cannot be selected. R. NozlCK, supra note 1, at 198-204. 4 A. MACINTYRE, supra note 1, at 244-52.

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