John Kilcullen
Copyright (c) 1996, R.J. Kilcullen.
Nozick's opening remark: 'Individuals have rights... so strong and far-reaching that they raise the question of what, if anything, the state and its officials may do' p. ix. The proposition that the state can do nothing is 'anarchy' (meaning not chaos, but 'non-rule' - 'an' being in Greek a negative prefix). Anarchy might be a happy state of affairs in which people live together more or less cooperatively without government. Anarchy is what John Locke and other XVII C writers called the 'State of Nature'; they assumed that anarchy is natural and original, and civil society (society ruled by government) artificial.
Nozick is not an anarchist. He is a 'libertarian' (cf. Murray Rothbard), a proponent of the minimal or 'nightwatchman' state. 'The nature of the state, its legitimate functions and justifications, if any, is the central concern of this book... Our main conclusions about the state are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, [and the] enforcement of contracts, and so on , is justified; that any more extensive state will violate persons' rights... and is unjustified... the State may not use its coercive apparatus for the purpose of getting some citizens to aid others' i.e. no compulsory charity; p. xi.
'Against the claim that [a more extensive state] is justified in order to achieve or produce distributive justice among its citizens I develop a theory of justice (the entitlement theory) which does not require any more extensive state... and criticize other theories of distributive justice which do envisage a more extensive state, focussing especially on the recent powerful theory of John Rawls'; p. xi.
Chapters 7 and 8 are against 'distributive justice'; chapters 1-6 argue that 'A state would arise from anarchy (as represented in Locke's state of nature) even though no one intended this or tried to bring it about, by a process which need not violate anyone's rights'. p. xi.
'Individuals in Locke's state of nature are in "state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or dependency upon the will of any other man" (sect. 4). The bounds of the law of nature require that "no one ought to harm another in his life, health, liberty, or possessions" (sect. 6). Some persons transgress these bounds, "invading others' rights and... doing hurt to one another," and in response people may defend themselves or others against such invaders of rights (chap. 3). The injured party and his agents may recover from the offender "so much as may make satisfaction for the harm he has suffered" (sect. 10); "everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation" (sect. 7); each person may, and may only "retribute to [a criminal] so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint" (sect. 8)'; p. 10.
For Locke the state of nature leads to civil society. Those who feel the inconveniences of the state of nature enter into a social compact to establish a minimal state: a legislator, judge, or magistrate. To join is not compulsory. Non-joiners may live side by side with members of civil society, and still have their natural rights. The civil society will of course protect its members against them if they violate the Law of Nature but has no right to persecute them or tax them.
Nozick suggests that before following Locke into civil society we should see whether there is any way to remedy these inconveniences without establishing a state, within the state of nature. Locke says that in the state of nature an individual attacked may call on others for help. So, Nozick suggests (p. 12-13), in the state of nature there might be mutual protection associations. They would need some procedure for assessing calls for help. A mutual protection society is like Locke's 'civil society', but not identical with it. Nozick does not simply assume, as Locke does, that there will be only one such body in each territory.
The 'posse' is not a convenient institution, so some people will be hired, and 'some entrepreneurs will go into the business of selling protected services'. They will offer various packages - e. g. arbitration only, or arbitration and enforcement etc. The contract offered by a protection agency will (eventually) require clients to renounce self-help or private retaliation. 'Such retaliation may well lead to counter-retaliation by another agency or individual, and a protective agency would not wish at that late stage to get drawn into the affair by having to defend its client against the counter-retaliation' - and it would not wish simply to refuse defense against counter-retaliation, because some competitor would offer a package with that included.
Eventually, motivated by such commercial considerations, the protective agencies will enter into voluntary agreement with one another whereby each confines its business to a distinct territory. Consider what would happen if several agencies operated in the same geographical area, and their clients came into conflict - and each agency judged that its client should be supported. The agencies would do battle. In a series of such conflicts one would eventually dominate, and clients of the others would transfer; or else the agencies would form some super-agency for the area which would adjudicate such conflicts, and enforce its decision; or they would amalgamate. One way or another there would end up being just one Dominant Protection Agency.
'Out of anarchy, pressed by spontaneous groupings, mutual-protection associations, division of labor, market pressures, economies of scale, and rational self-interest there arises something very much resembling a minimal state or a group of geographically distinct minimal states. Why is this market different from all other markets? Why would a virtual monopoly arise in the market without the government intervention that elsewhere creates and maintains it? The worth of the product purchased, protection against others, is relative: it depends upon how strong the others are. Yet unlike other goods that are comparatively evaluated, maximal competing protective services cannot coexist: the nature of the service brings different agencies not only into competition for customers' patronage, but also into violent conflict with each other. Also, since the worth of the less than maximal product declines disproportionately with the number who purchase the maximal product, customers will not stably settle for the lesser good, and competing companies are caught in a declining spiral. Hence the three possibilities we have listed. Our story above assumes that each of the agencies attempts in good faith to act within the limits of Locke's law of nature. But one "protective association" might aggress against other persons. Relative to Locke's law of nature, it would be an outlaw agency'; pp. 16-17.
Well, we now have geographically distinct protective agencies. But this is not yet a state. A state claims a monopoly of the legitimate use of force in a geographical area (Weber), and protects all who live in it against other, illegitimate, force. But no reason yet seen would give any protection agency a right to prohibit self-help by non-clients, or impose on it a duty to protect them.
To get from a de facto dominant protection agency to a minimal state, without violating any rights, Nozick postulates a principle of compensation; see p. 78ff. It is, roughly, as follows: if I stop you from doing something which may be perfectly right and harmless, on the grounds that there is also a risk that it may harm me, then I ought to compensate you for stopping you from doing it: especially if the thing I prevent is something generally done, important in people's lives, that cannot be forbidden without seriously disadvantaging them.
The Dominant Protection Agency in a territory may reasonably think that is clients are exposed to a risk of having unjustified injuries done to them by non-clients if the non-clients are allowed to exercise their right of self-defence. If a client wrongly attacks a non-client who then injures the attacker in repudiation, the injury to the client may not be unjustified; but the non-client may makes mistakes in exercising the right of self-defence, and the Dominant Protection Agency will figure that its clients should be protected against risks arising from mistakes that will happen if non-clients exercise their right of self-defence.
So it will have reason to prevent them from exercising it; and the appropriate compensation is to undertake their defence. For doing that it is entitled to charge: self-defence would have cost something. It compulsorily takes its own charges, set by itself. So the Dominant Protection Agency becomes a state - it protects everyone, enforces a monopoly in the use of force, and raises taxes. The distinction between clients and non-clients drops out, and it no longer looks like a business enterprise. Note that there has been no argument that the state must be democratic.
This can all be taken as an alternative to Locke's version of how civil society comes out of State of Nature. Locke imagines that when they become conscious of the inconveniences of the State of Nature people meet together and agree in a multi-lateral contract to set up a law-enforcement agency and to pay taxes. Tacit consent is brought in to explain how everyone becomes a party to the agreement. Nozick's picture is that the first developments require consent: groups form alliances, groups or individuals enter into contracts with protectors. But for the later developments the individual's consent is not required - the protection agencies carve up territory, forbid self help, give protection to non-clients, and exact taxation - all of this with or without consent.
And without any violation of natural rights. Like Locke Nozick begins from the assumption that people have natural rights, i.e. rights which are not the same as legal rights, i.e. rights established by legislation, but moral rights, which legislation and other government activity ought to respect. So if we imagine, as Locke does, that people at first lived without government, in a state of nature, the question is whether government could come into existence without violating natural rights. Locke says it could and did, by consent - people voluntarily accepted a certain obligation to obey an umpire, the government. Nozick suggests that it may come about in another way. People may voluntarily form mutual protection associations, but voluntarism soon drops out of the picture: entrepreneurs offer themselves as protectors, to fee-paying clients (which is of course a relation based on mutual consent). Soon the security firms would disentangle geographically, i.e. each would protect clients for only one district; also they would forbid clients to engage in 'self-help' independently of their protection agency. Also non-clients would be prohibited from fighting a client even when the client is in the wrong - the protective agency would insist on being the judge of when its clients had done wrong. and, in compensation, the protective agency would protect non-clients, compulsorily collecting a reasonable fee for doing so. At this point the distinction between client and non-client becomes irrelevant, the contractual relationship between protection agency and client is replaced by a unilateral providing of protection and a unilateral collecting of taxation, and we have a state - a minimal state, concerned solely with protecting the original natural rights. And if we accept some version or other of the principle of compensation, which Nozick leaves vague - the principle that you may stop someone from doing something which imposes risk on you, provided you compensate him, if the thing he wanted to do might have been within his rights - if you accept the principle, then the step from security firm to state involves no violation of natural rights - and neither does any earlier stage of the process.
This theory may seem bizarre, but it has some virtues:
1. It seems to fit history better than Locke's account. It does not postulate a general meeting of reasonable people concerned about the inconveniences of the State of Nature. The state develops gradually. The entrepreneur who enters into contracts with clients who want protection is like the feudal magnate. The stage when contracts between protectors and clients are replaced by unilateral protection and taxation corresponds to the de-feudalising of states in the later Middle Ages.
2. It requires no fictions about tacit consent on the part of members of a modern state. We don't consent to government, we just live here and the government unilaterally protects and taxes.
3. It implies no moral obligation to obey the state. Locke's theory of tacit consent implies that if we break the law (e. g. by driving over the speed limit) we do something morally wrong, namely violate an undertaking we have tacitly given to obey the government. On Nozick's theory there is no consent, no duty of obedience (though there is a natural duty to respect the natural rights of others).
Question: isn't it unrealistic to assume that the process by which existing states actually developed involved no violation of natural rights? Surely the feudal magnates were like the Mafia. Well, Nozick doesn't say it did happen without violation of rights, merely that it could have happened, i.e. that it is possible to imagine a process by which the state comes to exist without violation of rights. But does the possibility of imagining such a process justify the existing state, which probably did not actually arise that way? He might say that insofar as a mafia-like protector becomes a genuine protector of rights then to that extent that state is justified: though it will still be required by justice to correct any wrongs it has done. Or he could say that his argument in justification of states against the anarchist is merely concessive: although it is conceivable that states could come into existence without a violation of rights (and if any have, good luck to them), still no more-than-minimal state could exist without violation of rights: and that is the main point. It is only for states that do respect and protect natural rights that any justification along these lines is even conceivable: and if there is a justification along other lines, please produce it.
I wonder whether the historical myth is really essential to his argument. We don't need, perhaps, to trace the origins of states. Perhaps we can just say that if a certain set of people do protect natural rights, and prohibit self-protection, this is morally justified by the fact that if we engage in self-protection we impose grave risks on others, and by some principle of compensation - that if people are prevented from protecting themselves, that is all right if other protection is provided. And some principle of taxation is needed: if people are protected, and prohibited from self-protection, then it is no violation of their rights to tax them to pay for it. Thus Nozick's theory might be reconstructed without any reference to a state of nature and a process of development.
Well this is the minimal state, protecting natural rights - to life liberty and property. It is minimal only because the rights protected are minimal. If there were a moral right to be supported in a state equal in comfort to everyone else's, no matter what one's talents, even if one cannot find a job, then we would have a more-than-minimal state, a welfare state. 'Equal in comfort': a state committed to equality, not just of opportunity, but of comfort and standard of living. (In international relations such a moral right to equality would lead to world government and to a world tax system.)
So it is necessary to Nozick's 'libertarian' project to argue that to tax someone to provide welfare is equivalent to wrongfully taking his property, theft, and partially enslaving him (because he worked for his property). Hence the argument against 'distributive justice' is needed to complete his argument that the state should be no more than minimal.
Nozick: Against
Distributive Justice
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