Liberty, Prudence, Imperfection, and Law

“Why Nozick Matters,” By David Gordon

This review was authored by David Gordon.

[Robert Nozick. By Ralf M. Bader. Continuum, 2010. Xii + 136 pages]

Ralf Bader has given us an excellent guidebook to Anarchy, State, and Utopia, but he has done much more than this.[1] He offers insightful arguments of his own, often in defense of Nozick against his nonlibertarian critics. His book is a major advance in libertarian political theory.

As Bader rightly says, Nozick’s book was “the unfolding of a philosophical position by one of the greatest philosophers of the twentieth century” (p. 111). According to its critics such as Thomas Nagel, though, the libertarian political theory advocated in the book lacked foundations. Nozick, the critics claimed, simply postulated controversial libertarian rights and failed to show why anyone not already inclined to libertarianism should accept these rights.

As Bader aptly notes, Nozick did not claim to offer such foundations, but he nevertheless had ideas of great value about the basis of rights. Unless people have rights which are treated as “side constraints,” i.e., rules not to be violated in pursuit of the good or even in an attempt to minimize violations of these very rights themselves, their status as autonomous persons capable of giving meaning to their lives has not been respected.

The Kantian principle tells us to treat individuals as ends, rather than merely treating them as means. This requires us to treat them as beings that have dignity, beings that freely choose how to act and that can set ends for themselves.… Coercion involves making people do things they have not chosen to do.… Since individuals ought to be treated as ends and not mere means, it follows that they should not be coerced to do things against their will. (p. 22)

But why accept the Kantian principle? Nozick answers that

persons are beings who can shape their lives according to a conception or plan that they themselves have framed. They thereby possess the capacity to impart meaning to their lives and it is because of this that they are inviolable, that they should be treated as ends and not as mere means. (p. 24)

Samuel Scheffler has endeavored to use Nozick’s appeal to the capacity for meaning to overturn his libertarian conclusions. If the point of rights is to enable people to seek meaning in their lives, do we not have here a justification for welfare rights as well as the liberties that libertarians find more congenial? Do we not need resources in order to pursue effectively almost any plausible conception of meaning; and if some people lack such resources, do we not have a case for redistribution to them from those better off?

Bader’s response to Scheffler’s objection is to my mind the best thing in the book. In Nozick’s theory rights

are not means for ensuring that people can live meaningful lives, which is what Scheffler assumes in his favouring welfare rights over negative rights. It is not the case that living a meaningful life is the goal that is to be achieved and that rights are the means that permit us to attain this goal. Rather, it is in virtue of the fact that human beings are agents whose lives can have meaning that we need to respect their choices, that we have to let them decide how to live their lives. (pp. 79–80)

Scheffler’s objection thus depends on a different conception of rights from Nozick’s; he has not successfully undermined Nozick’s view from within.

If Nozick makes a plausible case for rights as side constraints, this does not suffice to get us to libertarianism. For that, a theory justifying individual property rights is required; and here Nozick stands ready with his “entitlement theory of justice.” Bader rightly notes that Nozick’s theory rests on a principle of initial acquisition but that Nozick neither claims to nor succeeds in putting forward such as principle.

Without a theory of acquisition, the entitlement theory would break down.… Nozick raises a number of forceful objections against Locke’s theory of appropriation, which states that property can be acquired by mixing one’s labour with something that is unowned. However, he does not put forward a positive theory to replace the one proposed by Locke. Instead, he simply gives a revised version of the Lockean proviso. (pp. 85–6)

In one respect Bader goes too far. Though Nozick did indeed raise objections, most notably his example of throwing a can of tomato juice into the sea, to Locke’s view of initial acquisition, I do not think he intended these objections to be taken as reasons to reject Locke’s approach altogether. Rather, he meant by their use to show that a Lockean principle of acquisition needed to be more exactly specified than has hitherto been done.[2]

Nozick defended his own theory of justice in part by a penetrating attack on competing theories. His famous Wilt Chamberlain example aimed to show that patterned theories of justice require severe interference with liberty in order to preserve the mandated pattern. Suppose, e.g., that we start with equal shares of wealth for everyone. Even the voluntary transfer of small sums of money by a large number of people to a single person may result in marked inequality. To preserve the pattern, people must be rigidly restricted in what they can do with the shares assigned to them by the theory.

Cheney Ryan has raised an ingenious objection to Nozick’s contention. Even if it is true that patterns interfere with liberty, how can Nozick, given his own account of coercion, object to these interferences without assuming just what is at issue, that his specification of rights is true?

Even though pattern theorists have to impose restrictions on what people may do with their holdings, “whether or not this lack of freedom constitutes an infringement on personal liberty depends on the rights we have over the holdings in question” … Given Nozick’s rights-based definition of liberty, it follows that there is no infringement ofliberty in the absence of rights. (p. 96, quoting Ryan, emphasis in original)

In brief, the accusation is that Nozick’s argument against patterned theories begs the question. These theories interfere with liberty only if one presupposes that people have the very rights over their distributive shares that these theories deny to them.

Bader insightfully suggests that despite this objection, a powerful case remains against patterned theories:

While the pattern theorist can consistently claim that maintaining a pattern does not restrict liberty, he must nonetheless impose significant restrictions on a range of intuitively unproblematic actions. While such a position is coherent, it is still counterintuitive since it imposes high costs on society by prohibiting a large number of mutually beneficial exchanges. (p. 98)

Bader’s point is a good one, but I do not think that Nozick’s original argument need be abandoned as question begging. It is certainly true that in his view people whose options are restricted by the actions of others have not been coerced, so long as those responsible for the restrictions have acted within their rights. But the kind of restrictions he has in mind here does not include restrictions imposed by force or the threat of force. He would not say, e.g., that if you deter me from trespassing on your land by pointing a gun at me, that you aren’t using coercion because you are acting within your rights. Rather, he would I think say that you are coercing me, but justifiably so. Nozick can say that patterns upset liberty, consistently with his own account of coercion, without begging the question in favor of his own entitlement theory. Patterned theories are enforced by the government: Nozick doesn’t have a rights-based view of liberty for this type of case.[3]

If Nozick is correct, people have rights, and these rights include property rights. How may these rights be secured and enforced? Nozick had the great merit of realizing that it is not obvious that the answer lies in the state. To the contrary, the existence of the state is problematic and requires justification. This he endeavored to supply in the first part of Anarchy, State, and Utopia, and Bader offers a careful account of Nozick’s argument.

In one place, though, I think that what he says is slightly mistaken. As he notes, Nozick imagines a state of nature in which a dominant protection association has emerged in competition with other agencies. As Bader tells the tale,

Nozick argues that independents can be prohibited from enforcing their rights since this kind of private enforcement is risky.… In this way we end up with a de facto monopoly. This is not a de jure monopoly since everyone has the same rights. It is not the case that the dominant agency has a special right that others lack. Instead, everyone has the same right of prohibiting others from using risky and unreliable methods. It simply happens to be the case that the dominant agency is in a position in which it is the only one who can make use of that right. (p. 34)

What I think isn’t made clear in this passage is that the dominant agency can prohibit others from imposing risky procedures only against its clients: it has no right to ban such procedures altogether. Further, it is consistent with Nozick’s account that a nondominant agency can prohibit still less powerful agencies from imposing on its clients procedures it views as risky. This possibility to my mind weakens Nozick’s claim that he has genuinely arrived at a “state-like entity.”

Rothbardians will be glad to see that Bader views with much sympathy anarchist objections to Nozick’s derivation of the minimal state. In particular, competition among protection agencies will, contrary to Nozick’s supposition, probably not result in a dominant agency’s imposing by force its view of decision procedures on all others. To the contrary, the competing agencies will be likely to agree on peaceful ways to resolve disputes among them. Nozick naturally had thought of this, but he wrongly supposed that such agreements would result in “one unified federal judicial system of which they are all components” (p.81, quoting Nozick). Bader points out that instead, “there can be different arbitration agencies and different protective agencies which compete with each other. There can still be large differences between the agencies” (p. 81).

Bader’s book contains much else of great value, e.g., its emphasis on Nozick’s account of the framework for utopia in the third part of Anarchy, State, and Utopia. Everyone interested in libertarian political theory should read Bader’s book.

[1] The book sometimes refers to Nozick’s other books, but it is almost entirely devoted to Anarchy, State, and Utopia.

[2] I rely for this point on conversations with Nozick.

[3] I again rely here on conversations with Nozick.

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