Almost from the moment that Anarchy, State, and Utopia was published, its critics, particularly the individual anarchists, have attacked Nozick’s proffered moral justification for the coercion employed by (even) the minimal state, i.e. one devoted almost exclusively to the protection of its citizens from foreign and domestic predators. From the anarchist perspective, the fatal flaw in the minimal state is that it forces unwilling parties to forgo the enforcement of their own rights, and to entrust this function to a central authority. For the reasons set forth in Chapter 4 of my Nozick’s Libertarian Project (“NLP”), I concur with these objections.
In this same chapter I offer an alternative defense of the minimal state, based on what I call the “libertarian principle of fairness” (NLP, 96), i.e. “that if the benefits and burdens of cooperating with the state in a program necessary to secure our rational agency are fairly distributed, then all rational agents are morally obligated to participate.” Most basically, with respect to those functions of the state that establish the preconditions for the exercise of our moral agency, it is simply unfair for some members of a community to reap the benefits of the efforts of others while refusing to contribute themselves. I apply this principle to the coercive funding of national defense here: //naturalrightslibertarian.com/2011/02/can-the-minimal-state-be-justified/.
In his essay titled “Nozickian Arguments for the More-Than-Minimal State” in the recently published The Cambridge Companion to Nozick’s “Anarchy, State, and Utopia,” Bader and Meadowcroft eds. (“CCN”), Eric Mack (a respected and widely-published libertarian philosopher) takes on this same subject. This post will analyze Professor Mack’s strategy, and will compare it in certain respects to my own humble efforts.
Mack identifies the essential difficulty with permitting the independent enforcement of justice as the possibility that: “so many potential purchasers of protective services may seek to free ride on others’ voluntary funding of those services…that those services will not get funded (or will be dramatically under-funded).” (CCN, 104). Mack notes that one way that Nozick might address this possibility, consistently with his core values, is to invoke what he terms the “anti-paralysis” postulate. Specifically, the notion is that “when working out the detailed specification of a person’s rights, one is to avoid specifications that systematically morally preclude individuals from exercising their rights or from conducting their lives in ways that the specification of their rights is supposed to protect.” (CCN, 112).
For example, he says with respect to the imposition by agents of extremely trivial risks on other persons, a blanket prohibition “would also be paralyzing…[and] would systematically diminish each person’s sphere of permissible and morally protected actions.” (CCN, 113). In other words, such an interpretation would destroy what a libertarian understanding of rights is intended to protect. So too, if people are allowed to free ride with respect to protective services, rights-bearers would be less able to protect their liberties “if their rights are understood to preclude their being required to contribute to the funding of protective services” (ibid).
The anti-paralysis postulate does not, says Mack, open the door to other forms of compulsory taxation because taxation in support of other governmental functions will not protect libertarian rights. As he eloquently puts it, “The special character of the injury involved in rights violation suggests a constraint on what sort of compensation is due for rights-infringing action. If the injury is in the currency of a boundary crossing, the compensation must consist in the prevention of boundary crossing.” (CCN, 110).
Of course, I happily endorse this conclusion because it is essentially the same point I make in defending my libertarian principle of fairness. In explaining why coercive taxation is permissible in the case of the public good of military defense, but not the public good of basic scientific research, I write:
Quite clearly, deterring or preempting foreign attacks and international terrorism promotes rational agency in a way that basic scientific research does not…Therefore, the coercion of rational agents to support national defense is an exception to Nozickian side constraints because it can be justified in terms of the very value, rational agency, which generates those constraints. NLP, 95.
This brings me to my first comment, perhaps just a quibble, regarding Mack’s excellent essay. In the quotation immediately above, he refers to the “special character” of a rights violation. He is of course talking from Nozick’s perspective, and earlier in his piece he describes his libertarianism as a “principled anti-paternalism” that assigns to the right-holder the sole authority “to decide whether that boundary will be permissibly crossed–whatever the effects…on her level of wellbeing or utility.” CCN, 107, 109.
All true, but nothing described here could be mistaken for a philosophical argument against paternalism. Mack is simply describing Nozick’s conclusions, without further elaboration. I appreciate that his purpose here is not to defend Nozick’s derivation of libertarian rights, but without more flesh on this particular bone, the skeptical reader may well be left with the impression that Nozick’s libertarianism is without ethical foundations. This would be unfortunate, because I devote most of NLP‘s first chapter to showing that this is definitely not the case.
The second and more substantive comment relates to Mack’s reliance on the public good/free rider assumption with respect to protective services, which serves as the premise for his anti-paralysis argument. Mack follows Nozick in focusing solely on the supply of “protective services,” i.e. the defense of people’s persons and property against aggression. He, like Nozick, does not differentiate between the threat of foreign attack/mega-terrorism and common criminality.
Since Nozick’s (failed) “invisible hand” justification attempts to show that the minimal state would evolve innocently from a state of nature, this approach was understandable in his case. However, because Mack does not offer an invisible hand justification, he must start, I think, in the real world, and his failure to distinguish the different types of protective services is problematic.
The assumption that a public good/free rider problem exists with respect to national defense is sound, as the supply of this good will inevitably benefit both contributors and those who refuse to pay. There is simply no way to exclude free riders from the benefit of deterring (for example) a nuclear attack.
However, this is not true with respect to those who would attempt to free ride on domestic law enforcement. The police can be instructed not to respond to calls from those who have not paid-up, and the authorities can simply refuse to prosecute or incarcerate those who commit crimes against non-contributors. Accordingly, the potential under-supply of domestic protective services cannot be the rationale for forcing unwilling community members to pay for this good (in exchange for the compensation of preventing even worse boundary crossings).
In NLP (94-99) I argue that at least in those societies that minimally adhere to the rule of law, the libertarian principle of fairness applies even to law enforcement because the independent administration of justice poses too great a risk to other citizens. In other words, in decent societies the state’s enforcement of justice, however imperfect, is characterized by due process, equal protection and the separation of powers, so that mistakes can be rectified and “bad actors” removed from office. No such safeguards exist with respect to those parties who wish to take the law into their own hands.
Accordingly, the libertarian principle of fairness holds that a tolerably just state may require its citizens to forgo their own preferred legal procedures and punishments in exchange for the assurance the system will treat all members equally and fairly. I believe that similarly Mack needs a distinct argument for mandating that people cooperate in the provision of domestic protective services, or needs to bite the bullet and accept the independent enforcement of justice.