|Montreal, April 13, 2002 / No 102|
by Edward W.Younkins
Harvard professor Robert Nozick (1938-2002) was a staunch critic of his colleague John Rawl's egalitarian political philosophy which held that it was proper for the state to redistribute wealth to help the disadvantaged and the poor. Nozick's premises, thesis, and conclusion in his 1974 book, Anarchy, State, and Utopia are very different from those reached by Rawls in his 1971 work, Theory of Justice. Nozick concludes that the welfare state was a type of theft and that taxation was equivalent to forced labor.
Part one of Anarchy, State and Utopia was dedicated to Nozick's
attempt to justify the state and to devalue anarchy. In part two he demonstrates
how nothing more extensive than a minimal state can arise without the violation
of individual rights. Then in part three he explains how the minimal state
can provide a meta-utopian framework for voluntary associations, communities,
and utopian experiments.
Nozick’s Argument for the Minimal State
Nozick gravitated toward the use of reason and rational analysis in the formulation of his social conclusions. His arguments are not influenced by customs, traditions, and historical accounts of social evolution. Nozick's rationalistic deductions lead to the notion of the spontaneous origin of the state. Although he did not maintain that the state literally came about spontaneously, he argues that it could have emerged inevitably.
Nozick vaguely uses state of nature theory as his point of departure. He explains that in a state of nature a person may enforce his own rights, defend himself, exact retribution, and punish. He sees these rights as boundaries that circumscribe an area of moral space around an individual. His argumentation is limited, however, due to his failure to precisely explain from where rights originate. Nozick's rights-based approach rests on Kantian intuitions and the Kantian categorical imperative regarding the treatment of person as ends and not merely as means. He is a Kantian intuitionist with no grounded theory of rights. For Nozick, rights are emotionally intuited with no basis in natural law.
Nozick wants to demonstrate how a state would arise from anarchy through a process involving no morally impermissible actions. He wants to judge the possibility of evolving a state or "state-like entity" without violating individual rights. He asks if, and how, the voluntary assent of rational individuals can lead to an entity resembling the state.
In Nozick's hypothetical anarcho-capitalist society, individuals could subscribe to private protection agencies which could provide protective services in the market. He endeavors to demonstrate that a minimal state could develop from an open market where the existence of a large group of private defense agencies could lead to a monopoly provider whose sole legitimate function would be the protection of individual rights. The only morally defensible state would be one restricted to the functions of adjudication and defense against force and fraud.
Assuming that people have the right to liberty, Nozick deduced the type of society that he thought would emerge. All individuals have the right to self-defense and to property defense. These rights are included in the idea of individual rights itself. Individuals have a right to protect themselves and may also delegate this right to others. Within the state of nature, people could solve their self-defense problem through voluntary arrangements and agreements. For example, by banding together in a mutual protection association, individuals could combine their power and agree to help fellow members defend against and punish rights violators. Members of a protective agency would agree to protect one another from aggressors. Protection could become a commodity sold by competing associations or firms. People could join and pay dues or fees to private protection associations. They would find it efficient to pay agents to protect them. A protective association specializing in the defense of its clients would possess the sum of the rights delegated to it by those customers.
Protective services are unique due to the fact that they use coercion. Nozick assumes that each protective agency would require each of its customers to abdicate the right of private retribution against aggressors.
Nozick goes on to discuss what would occur when there is a conflict between customers of different agencies which have arrived at incompatible decisions. Protective agencies could be in discord in defending their respective clients. One possible result is war between the protective agencies. Disputes between customers of different agencies could involve physical battle between the providers. On the other hand, the agencies could agree in advance on a private appeals court or arbitration process to settle disputes.
Some of the competing protective agencies would be better or stronger than others. In time, one dominant protective agency would eliminate or incorporate its competition and emerge as the single protective agency in given geographical region. There would be a sole protection agency or a group of associations bound together in a federation. This dominant group or federation would be a self-defense league that has a monopoly on the use of violence in a specific territory. This monopoly (or near monopoly) could result through the defeat of rivals or through agreements to resolve cases when the agencies reach different decisions. Although different agencies may exist there would be one unique federal judicial system in where they are all members.
Nozick claims that there will emerge one dominant protective agency in each territory in which "almost all" the individuals in that area are included. At this point there may still be more independents who have chosen to enforce their own rights rather than to purchase the protective services of the dominant agency. Here Nozick says that we have an "ultraminimal state" that provides enforcement and protection service only to those who buy its service. Individuals will still be free to enforce private justice in an ultraminimal state.
The state as the dominant protective agency
So far, Nozick has not yet derived the "minimal state" since there may be some individuals (i.e., independents) who are not protected by it. In order to arrive at the minimal state the independents must be absorbed into the dominant protective agency. Nozick contends that the ultraminimal state is unjust because it does not protect everyone's rights. His problem is to transform the ultraminimal state into the minimal state without violating anyone's rights including those of the proprietors of the agencies eliminated from the market and those of their customers. Nozick's attempts to justify how an ultraminimal state developed within the natural social order can be transformed into a minimal state without violating individual rights has been viewed by some critics as flawed, unconvincing, and unsuccessful.
Nozick begins his explanation of how the ultraminimal state can be converted into the minimal state by observing that each person has a right to be judged according to the procedures which minimize the chance of his property rights being infringed. He goes on to say that each individual has the procedural right to have his guilt ascertained by the least dangerous of the known procedures for determining guilt. Such a procedure would be the one with the lowest probability of finding an innocent man guilty. Nozick contends that customers will not settle for less than the most reliable procedures pertaining to the apprehension, trial, and punishment of criminals.
According to Nozick, the dominant association would have the right to prohibit its competition and non-customers from using risky and unreliable procedures. In other words, Nozick claims that the dominant agency has the right to prohibit risky procedures against its client. The near-monopoly agency's right to forbid these risky procedures is said to derive directly from a person's pre-legal, procedural rights which Nozick assumes to exist in very much the same manner as property rights exist.
Nozick contends that rights enforcement by independents yields a dangerous risk of unjust punishment of the dominant association's patrons because of the independents' lack of impartial and reliable judicial procedures for determining guilt and appropriate punishment. Therefore, to protect its customers, the dominant protective agency may prohibit the independents from self-help enforcement or from hiring their own protective service.
Nozick argues that the independents must be compensated for having specific risky procedures and activities prohibited to them. His "principle of compensation" states that the risky procedures may be banned given that those who are forbidden to perform those actions are justly compensated for the forceful deprivation of their rights to engage in these activities.
The dominant protective agency deprives non-customers of their rights to enforce justice themselves when they believe their rights have been violated. It follows that the customers of the dominant agency must compensate the independents for forcibly denying them their natural rights to punish violators of those rights. According to Nozick, if in defense of his procedural rights, a person deprives another of the means of protecting his natural rights, he must compensate that individual adequately to allow him to re-acquire those means. In other words, the dominant protective agency is viewed by Nozick as acting morally and properly as long as it compensates the independents sufficiently to buy protection from it without incurring extra costs. What Nozick is saying is that an agency may violate individual rights and in so doing creates a state if it compensates the person whose rights are violated for their losses.
To compensate for the infringement of the right of self-protection, the monopoly agency will extend their protective coverage to those who are not its customers. Nozick sees this as the most practical way of compensating the independents who have been prohibited from defending themselves. He contends that, in so doing, the dominant agency provides a service to all because it reduces the risk of dealing with other less able agencies. The dominant agency provides the independents and customers of other agencies with protection services which are more efficiently and effectively produced. Nozick states that the ultraminimal state is morally obligated to extend protection to those in its realm of dominance who have not chosen to be members of the ultraminimal state.
Nozick believes that his argument justifies the minimal state and that anything beyond the minimal state violates natural rights. He has argued that a minimal state could arise without violating anyone's rights. Any more extensive state could employ force to finance and promote services that some people will not want.
Many individuals who have read Nozick's work are bewildered by his claim that his minimal state could arise without any rights violation. They observe that the property rights of the customers of the competitors of the dominant agency are violated by being prohibited from using their resources in order to buy protection from the agency of their own choosing. They contend that free exchange has been stifled, that the right to contract has been restricted, that the independents' right to self-defense has been violated, and that the independents have not been treated as ends. Nozick is not convincing in his attempts to explain why it is permissible for a protection agency, in its efforts to achieve procedural fairness for his clients, to use force to keep others from engaging in risky activities so long as it provides compensation to those whose rights have been violated. Nozick's critics view his minimal state as merely a protection racket that has forced protection on its customers.
•Part two of ROBERT NOZICK'S LIBERTARIAN FRAMEWORK FOR UTOPIA on April 27th.
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