Why does Hart find Nozick's refutation of utilitarianism paradoxical?

Question

Justice: A Beginner's Guide (2017) by Raymond Wacks. p. 79.

    Some find his refutation of utilitarianism unfounded. H.L.A. Hart describes it as paradoxical, because it yields an outcome that is indistinguishable from one of the least satisfactory implications of an absolute maximizing utilitarianism, in that 'given certain conditions there is nothing to choose between a society where few enjoy great happiness and very many very little and a society where happiness is more equally spread'. A utilitarian would regard the aggregate or average welfare in both societies as the same; Nozick treats the situation as historical. Neither, Hart seems to be claiming, is likely to to disrupt the existing the pattern of distribution, however unequal.

Understanding Jurisprudence (4 edn, 2015) by Raymond Wacks. p. 268.

Secondly, Nozick's assault on utilitarianism is, as Hart shows, paradoxical:

[l]t yields a result identical with one of the least acceptable conclusions of an unqualified maximising utilitarianism, namely that given certain conditions there is nothing to choose between a society where few enjoy great happiness and very many very little, and a society where happiness is more equally spread.⁶⁴

A utilitarian would regard the aggregate or average welfare in both societies as the same. Nozick, of course, treats the condition as a historical one. But neither, Hart seems to be suggesting, is willing to disturb the existing pattern of distribution, how-ever unequal.

⁶⁴ 'Between Utility and Rights' in Essays in Jurisprudence and Philosophy, 205.

I understand that the emboldened sentences are true, as "an absolute maximizing utilitarianism" doesn't care about the distribution of happiness. But what exactly is paradoxical about Nozick's refutation of utilitarianism? What paradox stems from the idea of "an absolute maximizing utilitarianism"?

I linked to, but don't replicate, the primary source (Hart's writing).

Answer 1

Reading the quote just in isolation it is very confusing, and the way Wacks clips it does not help (at least just reading that page doesn't help much).

Let's explain it as follows:

Nozick's minimalist position is that people have the right to engage in transactions with each other and that there's nothing wrong with this leading to unequal outcomes as long as no coercive force is applied to bring about these changes.

The most famous version is the Wilt Chamberlain argument. The basic gist is this: it's not wrong for Chamberlain to make more money than others because people freely pay to go to his games -- meaning that his entertainment value is worth it. But the net result of that is that he gets $250,000 and everyone else is $10 poorer. Nozick's argument is that if we are okay with this thought experiment, then we accept there's nothing per se wrong with uneven distribution as long as "the historical condition" is met (where historical condition = no one got cheated in any transaction).

Hart's critique is that Nozick attacks bald utilitarianism for having a distribution problem, since utilitarianism only looks at the total sum of distributed happiness (arguendo). Viz., it doesn't matter if 100 people are at happiness level 100, or versus 5000 people are at happiness level 2, versus 2 people are at happiness level 5000). In other words, he attacks utilitarianism for claiming that states of affairs with a certain number of happiness points are equal as long as total happiness is maximized.

What's paradoxical then is that both Nozick and the utilitarian Nozick presents believe that:

a (1) state of affairs that defies our moral intuitions pretty badly is (2) a moral state of affairs if a certain condition is met.

Stated on the simplest level, Nozick is defending proceduralism about his own "historical condition" but attacking the utilitarian's account not because of the "total happiness condition" but the bizarre state of affairs it produces.

Thus, the paradox is that his view is similarly subject to attack on the grounds that the problem with the state of affairs spells trouble for the condition. If he rejects this by saying we can't attack the state of affairs, then he can't attack the utilitarians for their state of affairs either.