Whither Anarchy

8/14/2019 Whither Anarchy

1/7

WHITHER ANARCHY?HAS ROBERT NOZICK JUSTIFIED TH E STATE?*

RA ND Y E. BARNETT

Harvard Law School

One can appreciate Anarchy, State a nd Utopiaon many levels. Its emphasis on individualfreedom is a refreshing change of pace. Itquestions assumptions that have long beensacrosanct. It puts forth a theory of entitlementwhich is nothing short o f remarkab le in this da yand age. And most importantly, it is beingtaken seriously by the press and , hopefully, theestablishment philosophers as well.

But Professor Nozick has attempted morethan this. He has attempted to refute theanarchist position. This is a rare endea vor. Fewhave taken the anarchist position seriouslyenough to refute it. Few understand it wellenough to d o it justice. Dr. Nozick displays a nintimate knowledge of the anarchist positionand yet he rejects it. His refutation is novel,

intricate and many-faceted. But does itsucceed? In this paper I shall try to outline afew reasons why I think it does not.

Nozick begins by asserting tha t "Individualshave rights..." (ix).@ Th e purpo se of the Tirstpart of his book (the ,only par t which we shalltreat here) is to see if it is possible to evolve asta te or "state-like entity" (118) without anyviolation of individual rights. He concludesthat such a thing is possible a nd likely as well. Ishall confine my exam ination t o the possibility

that a state might exist which does not violateindividual rights ab initio.

' 'In a state of nature an individual mayhimself enforce his rights, defend himself,exact com pensa tion, an d punish." (12) But anindividual may also delegate this right tofriends , relatives, or hirelings. A com pany

*

The original version of this paper was delivered at theThird Libertarian Scholars Conference, October 1975,New York City.

P All parenthetical numb ers are from Robert Noz ick'sAnarchy, Sfa feand Ufopin,Basic Books, 1974.

which specialized in defense of its customersNozick would call a ~r ot ec ti ve ssociation.(l2)The protective association has no rights ofaction other than the sum of the rightsdelegated to it by its subscribers. (89) To thispoint the anarchist has no problem. At least hethinks he has no problem. He has yet to hearwhat Professor Nozick believes is the contentof these individual rights.

Nozick analogizes rights to a sort ofboun dary which "circumscribes a n area inmoral space aro und an individual." (57) Whathappens if one person does something whichrisks crossing the boundary of another?Nozick answers that you may prohibit therisky activity provided tha t "those wh o aredisadvantaged by being forbidden to do

actions that only might harm others must becompensated for these disadvantages foistedupon them in order to provide security for theothers." (83) This he calls th e "principle o fcompensation." It "requires tha t people becompensated for having certain risky activitiesprohibited to them."(83)

It follows from this principle that anindividual may be prohibited from using aproce dure of e nforcing his rights which is riskyor unreliable, provided that the principle

applies to this type of activity. Nozick givestwo parallel justifications fo r applying theprinciple t o dispute settlement.

Since he maintains that a protective assoc-iation has no rights of action other than thesum of the rights delegated to it by itssubscribers (89), Nozick first seeks to groundhis justification on some right held by everyindividual. H e turns hopefully to the notion of"procedural rights." "Each person has a rightt o have his guilt determined by the leastdangerous of the known procedures for


2/7

RANDY E. BARNETC

ascertaining guilt, that is, by the one havingthe lowest probability of finding an innocentperson guilty." (96)_The assoc iation's righ t toprohibit risky procedures, therefore, derivesdirectly from the individual's proceduralrights.

Secondly, Nozick insists that the prohibitionof "unreliable" proce dures is valid even ifthere were no procedural rights. He contendstha t epistemic considerations govern the use ofretaliatory force. That is, you mustknow thatan aggressor has violated someone's rightsbefore you may retaliate. Use of force on anaggressor without knowing that he is guilty isitself aggression. "If som eone knows tha tdoing act A wou ld violate Q's rights unlessconditon C obtained, he may not do A if hehas not ascertained that C obtains throughbeing in the best feasible position for ascert-aining this."(l06)

On this analysis, a protective associationmay prohibit others from using procedureswhich fail to meet some standard of certaintysince failure to meet this standard means thatthe enforcer lacks the requisite knowledge ofguilt.

Once you swallow the principle of compen-

sation and its applicability to dispute settle-ment, the introduction of the minimal state-like entity is all downhill. Nozick envisions oneassociation coming to dominate the market.By his principles, this association would havethe right to prohibit all competitors who in itsopinion employed risky procedures (provided,of course, "compensation" was paid). Voila!We have a state-like entity which ariseswithout violating anyone's rights, right?

Everything hinges on whether Nozick has

successfully outlined a n "invisible hand"explanation of the state where no rights areviolated in the process. Consequently, Noz-ick's conception of rights and their basisbecomes crucial here. Yet early in the book heapologizes for not presenting a theory of themoral basis of rights. (xiv). Still it is possibleto discern a notion of rights being used here.

A right is a freedom to do something, thatis, to use property which includes one's bodyin a certain way unimpinged by external

constraints (force or threat o f force). Th e right

of self-defense is contained within the oonceptof right itself. It is simply a mews o f

'exerc ising you r r igh t w hen someone&f&'ing to 'prevent you from doing so. Thef@tp& h&ve ~,

, I

a right of action means you may agtw &at :, :,way even if another attem pts t o prtr.sehtthis.

Self-defense, then, is implicit in the notion ofrights.

Where do rights come from? How~e theygrounded? Nozick doesn't say and 1 w'ill notpretend t o offer a final answer to,th is question.But it seems that since the concept of rightcarries within it the freedom to use property,rights are created along with properly pwner-ship. I would contend that this i s whatownership means. Rights (to use propertyin acertain way), then, can be homesteaded,exchanged, or bestowed to employ the Lock-ean trichotomy.

Has Nozick's minimal state violated indiv-idual rights? You remember tha t th e -reasonthe dominant protective association has a rightto prohibit risky, unreliable enforcementmethods is that its members, indeed all peoplehave proce dural rights. "Each person has theright to have his guilt determined by the leastdangerous of the known procedures for

ascertaining guilt, that is, by the one havingthe lowest probability of finding an innocentman guilty." (96). "The principle is th at aperson may resist, in self-defense, if others tryto apply to him an unreliable or unf&procedure of justice." (102).

But where would such a right come from?Was it homesteaded, exchanged or received a sa gift? And does this right of self-defense bearany resemblance to the right of self-defenseIdiscussed earlier? Nozick deals with none of

these questions. He simply assumes theexistence of procedural rights and then proc-eeds to speculate on what form they shouldtake. This does not mean that Nozick iswrong. It means only that we have no reason

.to believe he's right.At the same time Nozick chides the

natura l-rights tradition w hich, he says, "offerslittle guidance on precisely what one's proc-edural rights are in a state of nature, on howprinciples specifying how one is to act have

knowledge built into their various clauses,and


3/7

17HITHER ANARCHY? HAS ROBERT NOZICK JU STIFIED THE STATE?

so on. Yet," he continu es, "persons withinthis tradition do not hold that one may notdefend oneself against being handled byunreliable or un fair procedures." (101).

I maintain that this is precisely what thenatural rights tradition does hold or, at least,should hold: That there are no naturalprocedural rights. Let me briefly defend thisclaim.

In the state of nature one has the right todefend oneself against the wrongful use offorce against person or property. But if youcommit an aggressive act, the use of force bythe victim to regain what was taken fro m himis not wrongful. If you have stolen a T.V., therightful owner may come and take it back.You may rightfully resist only if you areinnocent or have some legitimate defense.What are we then to make of proceduralrights?

Though only the innocent party mayrightfully use self-defense, it is often unclear toneutral observers and the parties involved justwho is innocent. As a result there exists thepractical problem of determining the facts ofthe case and then the respective rights of thedisputants. But I must stress here that this is a

practical question of epistemology not a moralquestion. The rights of the parties aregoverned by the objective fact situation. Theproblem is to discern what the objective factsare, or, in other words, to m ake o ur subjectiveunderstanding of the facts conform to theobjective fa cts themselves.

The crucial issue is that since rights areontologically grounded, that is grounded in theobjective situation, any subjective mistake wemake and enforce is a violation of the

individual's rights whether or not a reliableprocedure was employed. The actual rights ofthe parties, then, are un affected by th e type ofprocedure, whether reliable or unreliable. Theyare only affected by the outcome of theprocedure in that enforcement of an incorrectjudgment violates the actual rights of theparties however reliable the procedure mightbe.

The point is that you have a right ofself-defense if you are innocent but not if you

are guilty. Only if a procedure finds an

innocent man guilty and someone enforcesthat finding has anyone's rights been violated.You have the right to defend yourself againstall procedures if you are innocent, against noprocedures if y ou are guilty. Th e reliablility o fthe procedures is irrelevant. Unless an innoc-ent person agrees to be bound by the outcom eof a judicial proceedings, he retains his rightof selfdefense even afte r a "reliable" proc-edure has erred against him.

The pulpose of any procedure, then, is toinduce adherence to the decisions of thearbitrators. The parties and the communitymust be convinced tha t there is a good chanceof a just decision before they will be willing tobind themselves t o any possible outcom e. In aculture which held th at rights a re based o n thefacts of the case, disputants would demandprocedures suited to discover those facts. Thebetter it worked, the more acceptable it wouldbe. Thus procedures would and should bejudged o n the basis of utility.

Procedures, then, for discovering the factsituation are not to be confused with rightsthemselves. You only have a right to aprocedure, like any other service, if someone,e.g. your protective association has contracted

to provide you with it.Wh at then of N ozick's second line of attack- the epistemic justification. "On this view,what a person may do is not limited by therights of others. An unreliable punisherviolates no right of the guilty person; but hestill ma y no t punish him." (107). It is no tenough that the guilty party is guilty. Thep"nisher must know he is guilty. One istempted to label this the 'what you d on't knowcan hurt you' approach.

This app roach neatly avoids an assertion o fprocedural rights and, in addition, is aconscious effort to answer the objection that aguilty person may not defend himself againstunreliable procedures and may not punishsomeone else for using them upon him. (103).Ou r attention is now shifted from the rights ofguilty persons to the "morality" of protectiveassociations; from the question of whether aguilty person can defend himself against hisvictim we now move to consider whether a

third party can protect the guilty person if tha t


4/7

18

-.

RANDY E. BARNETT

third party isn't sure of the client's guilt."But,", as Nozick asks, "does this differencein knowledge made the requisite difference?"(108)

He believes the epistemic problem at leastallows the protective association to delay theimposition of penalties on its client until it candetermine his guilt. This is provided they paycompensation for the delay if it turns out thathis client is guilty. While I am unsure aboutthe rightfulness of this delay, it does notappear to present a major difficulty. Nozick,however, goes on to assert that a person usingan unreliable proced ure "is in no position toknow that the other deserves punishment;hence he has no right to punish him." (106) It

is one thing to assert that if a protectiveassociation delays sanctions against its guiltyclient it must compensate the victim for thedelay. To claim that the association mayrightfully prevent any punishment by anenforcer it deems unreliable is quite anothermatter.

I leave aside the question of whetheranyonehas the right to "punish" if by punish wemean something other than "make restitutionto victims." If punishment were limited to

restitution, this might minimize Nozick'svisceral reaction against the actions of thirdparties. For clearly he fears the prospect ofpersons stealing from or hurting someone andthen trying to dig up some past indiscretion bythe victim in ord er to "justify" their agg-ression.

A restitutional standard would justify theactions of thieves who stole from someonewho turned out himself to be a criminalonly ifthe thieves had given their booty to theoriginal victim. If the thieves kept the lo ot, thefact that the victim was himself a criminalwould in no way justify their acts. This ishardly a carte blanche for indiscriminate"punishing."

But Nozick's epistemic justification is mo rethan a gut reaction against loopholes forcriminals. It sets forth a principle of morality.Unfortunately he doesn't justify this principlebeyond its deterrence value on enforcers usingunreliable procedures. (105). And even on thispoint he concedes tha t "not anything that

would aid in such deterrence may be inflict-ed;" but the tru e question is the (moral)legitimacy of "punishing after the fact theunreliable punisher of someone who turnedou t to be guilty." (106).

But while this epistemic consideration maybe relevant as a practical problem or even amoral problem, I question its relevance toissues of rights. (And I'm sur e Dr. Nozickshares my contention that rights and moralsare not co-extensive.) If the nature and moralfoundation of rights are what I alluded toearlier - a freedom to use property, createdalong with property ownership- then epist-emic considerations cannot create or alterrights. Th e right o f self-defense wecontend is a

direct result of an infringement on a propertyright. Its purpose is to protect and restorewhat is rightfully owned. Since it is ontologic-ally grounded this right exists against anaggressor independently of whether we knowwho the aggressor is. Consequently we areentitled to take compensation from the actualaggressor whether or not we are sure of hisguilt. That is, the actual guilt or innocence ofthe suspect as opposed to our subjectiveknowledge of his guilt determines if taking

restitution from him is justified.Nozick's epistemic considerations are rel-

evant to whether one who indiscriminatelytakes restitution from people he's no t sure a reaggressors (but h appens by chance to be right)is a good man. This is a question of morality,not rights. Epistemic considerations are alsorelevant when we realize that we are likely toaggress against innocent people and be respon-sible to them if we aren't careful ab ou t wh o we"punish." This is a practical questio n, no tone of rights.

This analysis, like the analysis of proceduralrights, highlights the crucial need for a theoryof rights and the difficulties we face inpolitical philosophy without such a theory.The fact is that in laying down my argument, Itoo fail to provide a detailed theory of themoral basis and nature of rights. The purposeof this treatment, however, is merely to showhow essential such a theory is and how starklydivergent conclusions flow f rom even a slightlydifferent conception of rights.


5/7

19

-

WHITHER ANARCHY? HA S ROBERT NOZICK JUSTIFIED TH E STATE?

How then are we to properly view therelationship between procedural safeguards,epistemic considerations for enforcers and theright of selfdefense? Perhaps Dr.Nozick'sintriguing distinction between moral const-raints and moral goals would be of servicehere. "The side cons traints view forbid s you toviolate these moral constraints in the pursuitof your goals; whereas the view whoseobjective is to minimize the violation of theserights allows you to violate the rights (theconstraints) in order to lessen their totalviolation in the society." (29). Let me brieflyclarify this.

We may take as our moral goal or end acertain state of affairs. Anything whichenhances this state of affairs we may doprovided we don't violate certain moral sideconstraints on our actions. Nozick correctlyargues that the protection of rights is not amoral goal since this would allow us to violatethe rights of a few in order t o generallyenhance the rights of the many. For example,one m ay not torture the innocent person to ga ininformation which will prevent the explosionof a bomb even though this would generallyenhance the goal of protecting peoples rights

(in this case the rights o f the po tential victims).Rights of individuals are moral side-con-straints. We may strive to achieve our goals inany way which does no t violate an individual'srights.

1 would ad ap t this view to our discussionhere. For practical and moral reasons, proc-edural fairness and knowledge by enforcers ofthe guilt of their suspects are moral go als t o bestriven for. Our efforts to achieve them,however, cannot violate the rights of any

individual. To punish a victim for takingrestitution from his actual aggressor justbecause he wasn't su re it really was hisaggressor is a violation of th at victim's right o fself-defense an d, there fore, a violation of ou rmo ral sideconstraint. T he right of self-defense,then, dictates that procedural fairness andepistemic certainty are goals, not constraints.

In this discussion, I've tried to show howProfessor Nozick has failed to apply his"principle of compensation" t o dispute- settle-ment situations, the lynch-pin of his justific-

ation of the ultra-minimal state. But what ofthis principle of compensation itself? I thinkProfes sor Nozick will agree that ifit fails therecan be no doubt that that the ultra-minimalstate is unjustified.

"The principle of comp ensatio n requiresthat people be compensated fo r having certainrisky activities prohibite d to them." (83). Inother words it is okay for you to forciblyforbid another from engaging in a riskyactivity provided you compensate him for it.Nozick anticipates our response by pointingout that "it might be objec ted that either youhave the right t o forbid these people's riskyactivities o r you don't. If you do , you needn'tcompensate the people for doing to them whatyou have a right to do; and if you do n't, thenrather than formulating a policy of compen-sating people for your unrightful forbidding,you ought simply to sto p it." (83).

Nozick claims this dilemma is "too short"(83); that there is the middle ground of"prohibit so long as you compensate." Thismiddle ground, he says, is based on adistinction between "productive" exchangewhich you have a right to engage in and"non-productive" exchange which you d o not.

Since you have no right to non-productiveexchange in the first place, the prohibition ofsuch an exchange isn't a violation of yourrights.

In a productive exchange each party is betteroff than if the other party's activity wasn'tdon e o r the oth er party didn't exist at all. (84)."Whereas if I pay you for not harming me, Igain nothing from you that I wouldn't possessif either you didn't exist at all or existedwithout having anythin g to do with me." (84).

The principle of compensation merely saysthat if the prohibition of a non-productiveexchange causes you to forego some benefit(other than what you might have charged inthe exchange) you are entitled to compen-sation.

My concern in this discussion is not so m uchwhether such a distinction exists, but whethersuch a distinction is relevant to politicalphilosophy or, more particularly, to rights.What seems to have occurred here is anunfortunate mixing of economic explanation


6/7

CN

RANDY E. BARNETT

with moral imperatives. The concept of anexante increase in individual psychic utility as aresult of exchanges was developed as anaxiomatic explanation of why voluntary ex-change occurs. It was never intended to serveas a moral or political justification of th at

exchange. Its use as such disregards the wholenotion of title.

If something belongs to me what I own isthe title to that object. I may d o with it what Iwish and that includes exchanging my title forother titles. The reason I exchange is tomaximise my psychic utility but this saysnothing abou t my right to m ake the exchange.In Nozick's example of a blackmailer i t is truetha t the blackmailed party would be better offif the blackmailer didn't exist (as opposed toan au to purchaser who would not be better o ffif G.M. did not exist). But the reason why thisis true is because th e blackmailer is a free manwho has the right to tell what h e knows as weall do . Wo uldn't a businessman be better offwithout his competition? If a rival companyoffered to leave the market for a price wouldthe remaining company have the right toprohibit any further competition by the rivalsimply because the rival was offering a

non-productive exchange? I think not.Nozick adm its that. even und er his principleof compensation, the blackmailer may chargefor what he foregoes which Nozick incorrectlyassumes to be little or nothing. What theblackmailer foregoes is his right to use hisbody in any way which he sees fit, i.e. speech.This introduce s the fallacy of a "just price."There is no just price for this right or, moreprecisely, his title to use some property- th ebody - in a certain way. It has no intrinsic,objectively measurable value. Its only fairprice is the freely bargaine d o ne . Anything lesswould mean a right of title had been taken byforce from its owner. By definition this is aviolation of the blackmailer's rights.

This just price fallacy permeates the wholeof Nozick's discussion of "compensation". Itconfuses the morally permissable exchangewith the penalty for violating a right which iscompensation. If someone violates another'srights, the victim is entitled t o compe nsation t omake up for the transgression. This simply

means he is entitled to what was taken fromhim. We don't pretend that money i s theequivilant o r even "fair price" for th e loss oflife or limb. We say only that some attemptmust be made to restore to that victim whatwas taken from him as far as humanlypossible.

The crucial distinction here is while volunt-arily paying a purchase price makes anexchange permissible, compensation does notmak e an aggression permissible o r justified. Itis not permissible to deprive you of free speechprovided I "compensate" you. You wouldhave the right to defend yourself. If you wereunsuccessful, unable or unwilling to defendyourself, you would then, in addition, have aright to compensation. Put in more analyticterms, voluntariness is a necessary conditionfor a morally permissible exchange of values.Compensation is not a sufficient condition forjustifying or permitting a violation of rights.

Contrary to Nozick's principle of compens-ation, all violations of rights should beprohibited. That's what right means. Th e onlyway rights are abdicated is by consent of theright holder. Nozick rejects this on thegrounds that "some factor may prevent

obtaining this prior consent or make itimpossible to do so. (Some factor other thanthe victim's refusing to agree)". (71). T o th isone must reply, "so what?". Practical prob-lems of obtaining consent sometimes can't beavoided it 's true, but this doesn't mean thatconsent is not required. Nor will an argumentfrom utility suffice since utility we saw canonly be applied to moral goals and not torights which are moral side-constraints (toemploy the Nozickian distinction). Nozick istoo quick to reject the principle that rightsviolations are always prohibited.

WHITHER ANARCHY?

Political reality dictates that the practicalburden of proof falls on those who wish tomake a radical change in society. Anarchistsmust face this burd en. But it is those who seekto impose a state, those who wish to justifytheir use of force against the individual whoface the moral burden of proof.


7/7

21

I

WHITHER ANARCH Y? HAS ROBERT NOZICK JUSTIFIED THE STATE?

As I tried to emphasize at the beginning ofthis paper, there are many reasons why weshould he grateful to Robert Nozick forwriting this book. Not the least is that he hasproperly perceived the moral burden of proof.More than this, he has tried to meet thatburden. I have tried to determine whether hehas succeeded. Has Robert Nozick justified thestate? I conclude that he has not, though notfor want of an intricate an d ingenious effort.

It is essential to his endeavor that he showtha t the rise of the state violates n o individualrights. He has attempted to show this byimplicitly redefining rights. The crucial step inthis process is the principle of compensation

and its application to dispute settlement.believe that the application of the principle todispute-settlement via procedural rights andepistemic considerations fails. The principleitself, I contend is grounded on a misguidedeconomic-type explanation rather than a moralargument. Lastly I feel that Nozick's ownconcepts of mo ral constraintsand moral goalshelps u~ t o see where he later falls sho rt.

Nozick's book neither claims to he norsucceeds in being the last word on theanarchist-minimal state controversy. For thatmatter, neither does this paper. I concludesimply th at N ozick fails to meet his burdenofproof. T he state remains unjustified.

Documents

Whither Anarchy