Justifying the Minimal State, Part II

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.


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21 Responses to Justifying the Minimal State, Part II

  1. This is a very interesting analysis, but in my opinion it addresses a non-problem. To understand this, it is important to distinguish the classical liberal state from libertarian protection services.

    The classical liberal state – as described, for example, by Locke and Kant – enforces everyone’s rights without discrimination. Those who can afford to pay are forced to do so, but everyone is entitled to the state’s protection.

    In the libertarian system – whether Rothbard’s private protection agencies or Nozick’s minimal state – enforcement of rights depends on ability and willingness to pay. Those who are able and willing to pay receive the highest level of protection, those who are able but unwilling to pay can opt out of receiving any protection, and those who are unable to pay must find generous benefactors if they want to survive.

    Children, the unemployed and the destitute receive full protection from the classical liberal state. Under libertarian anarchy or minarchy, they are defended against thieves, rapists and murderers only if others volunteer to buy protection policies on their behalf.

    Classical liberalism asserts that political institutions must be justified to all those who have to live under them. This is the point of the Lockean social contract and of Kant’s General Will. Rothbard and Nozick dispensed with these justifications and reversed the burden of proof: in their minds, what needs to be justified is not the refusal to enforce some people’s rights because of their inability to pay, but the enforcement of some people’s rights at the expense of other people.

    Rothbard and Nozick missed the fact that enforcement of rights is not a service provided on the market to discrete individuals but is rather a precondition for the existence of the market as a system. No market can arise in the first place if criminals are free to rob, rape and murder at will. That is why the state must protect everyone in its territory and why taxpayers are forced to fund the protection of non-taxpayers. No-one has the “right” to designate a class of citizens whose rights will be left unenforced because he or she is not willing to pay for a system of universal protection.

    • Mark Friedman says:

      [response to comment below]

      I agree with your first two paragraphs. However, let me say that I think Nozick has a good moral argument for near-absolute side constraints, an argument that I lay out and defend in some depth in my book. Obviously, then, I am working within this theory of rights in my analysis of the minimal state issue.

      As I have made clear, I regard Nozick’s moral justification of the minimal state by an invisible hand process as unconvincing. My post discusses the alternative (libertarian) justifications offered by Mack and I. So, forgive me, but I am not going to spend much more time on Nozick’s analysis here. I will just say that the “inexpensive” policy you refer to would only be offered to independents who wish to enforce justice for themselves, and (as I read his somewhat confusing language) would only go to “those using unreliable or unfair enforcement procedures” (near the end of p.112). And, as previously noted, Nozick believes that very few people would fall into this category (middle of p. 113). So, I think you are reading way too much into the “inexpensive policy” language.

      You raise an interesting question regarding the distribution of protective services under my pricniples, an issue that I do not specifically address in my book. Since defense against foreign aggression is a classic public good from which all benefit equally (nuclear bombs kill rich and poor alike), the distribution is by its very nature egalitarian. With respect to protection against domestic criminals the situation is more complex. Obviously, the law as written must not discriminate against the poor, or by race or ethnicity.

      However, I believe that even under classical liberalism law enforcement will be (at least partially) a local concern, i.e. there will be distinct communities each with their own police forces, courts, prosecutors, etc. Some communities will be wealthier than others, and they will have more police per capita, and they will be better trained and equipped than in poor communities. Thus, in this sense there will be an unequal distribution of protective services, just as there is in other social goods. To redress this sort of inequality by redistributive taxation would be inconsistent with libertarian principles, I believe.

  2. Amendment to the above: Nozick’s minimal state does provide its “least expensive” standard of protection to non-paying independents against its paying clients (ASU, p. 112), but it gives these independents no protection against other independents (p. 113). So those who are unable to pay for protection are left unprotected against independents. In Rothbard’s system they are unprotected against anyone. In both systems, there is a class of citizens whose rights are unenforced against at least some thieves, rapists and murderers.

    (Of course, this injustice must be weighed against the opposite injustice perpetrated by the more-than-minimal state when citizens are denied the means to defend themselves effectively against thieves, rapists and murderers.)

    • Mark Friedman says:

      Hi Paul:
      Thanks for stopping by, and thanks for the thoughtful comment. As I indicated in the first paragraph of my post, I am not defending Nozick’s “invisible hand” justification of the state (and I am even less a defender of Rothbard’s anarcho-capitalism), so some of what follows is pretty much academic. Both Mack and I are offering alternative justifications that attempt to show that coecive taxation to fund protective services is morally permissible. Nevertheless, in fairness to Nozick, the very fact you cite will lead almost all (poor) independents to avail themselves of the (subsidized) services of the Dominant Protective Association, which is why Nozick claims at the very end of the paragraph you cite that “This factor…acts to reduce the number of free riders, and to move the equilibrium toward almost universal participation.” Thus, there would be few if any unprotected members of society, and then only those who elect not to join the DPA. Although I reject Nozick’s derivation of the minimal state, I agree that truly impoverished members of society should not be left unprotected against aggressors.

      I don’t believe that Nozick missed the fact that free markets presuppose “law and order,” which is why he was at pains to show that the minimal state, with its redistributive function, could arise through entirely innocent means. On the other hand, those who believe in natural rights hold that such rights pre-exist coercive political authority, and that any state that violates them is acting unjustly. Coercion typically is rights-violating, which is why Nozick is compelled to argue (unconvincingly) that forcing independents to join the DPA does not constitute impermissible coercion. Mack and I put forth different arguments that try to overcome this very problem.

      • Thanks for your reply. I have a couple of comments.

        1. The point I was trying to make was that libertarian rights theorists take as their point of departure the individualist anarchist conception of rights, which places the burden of proof on those who assert that “coercive taxation to fund protective services is morally permissible.” But surely the burden should rest on those who justify refusing to pay such taxes. After all, that refusal exposes an entire class of citizens – those who are unable to protect themselves or pay for their own protection – to coercion by domestic aggressors. In Locke’s words, “men being partial to themselves… negligence, and unconcernedness, [tend] to make them too remiss in other men’s [cases]” in the state of nature (2nd Treatise, 125). If (as we agree) it’s unjust for some people to be left unprotected against theft, rape, murder, etc., then there’s no reason to take the individualist anarchist doctrine seriously and no need to resort (as Nozick does) to an invisible-hand derivation of the state or (as you do) to a libertarian principle of fairness.

        2. In answer to my point about the injustice of Nozick’s dominant protection agency not protecting independents against other independents, you mention Nozick’s conclusion that there would be a trend towards universal participation in the agency. Let’s assume that Nozick is right about this. Even in this scenario, the agency’s poorest clients would be receiving the cheapest service, and the standard of protection against theft, rape, murder, etc., would depend on their ability to pay. So we have a coercive monopolist of protection that systematically discriminates among the people it’s supposed to protect. But this contradicts Nozick’s own principle that a state claiming the allegiance of its citizens must remain neutral between them (ASU, p. 33). A liberal state, as Nozick acknowledges here, should enforce everyone’s rights impartially. Nozick’s minimal state doesn’t.

        This is why I’m suggesting that coercive taxation to fund universal protection against coercive aggression within a state’s territory poses no special ethical problem.

        • Mark Friedman says:

          First, let me applaud your efforts to publicly expose the radical leftists and anti-semites who distort the historical truth in order to deny Israel’s right to exist within internationally recognized and secure borders. Keep up the good work!

          Second, with respect to the minimal state, thanks for the clarifying comments, which give me a better idea of what you are getting at. With respect to your first point, I believe you are correct about the libertarian presumption against coercion, but I do not find this problematic. Nozick has a specific argument against the moral permissibility of coercion, even when employed to advance a cause that would be noble if pursued by voluntary means (which I discuss in some detail in Chapter 1 of my book). Given this heavy, almost irrebuttable presumption against coercion, Nozick tries to side-step the problem by arguing that a redistributive protective agency would evolve from a state of nature by an invsible hand process. As previousy mentioned, I think this effort is a failure.

          But I don’t agree that there is “no reason to take the individualist anarchist doctrine seriously,” unless you have a good counter-argument to Nozick’s claims about the inherent evil of coercing rational agents, even to do the right thing. While I endorse Nozick’s arguments against the use of political force, I contend that coercion in support of protective services stands on a different moral footing than (say) coercion to support other public goods (e.g. basic scientific research), because protective services establish the basic preconditions for the exercise of rational agency, while research does not.

          Regarding your second comment; again, I am not defending Nozick’s argument, but I don’t see where in ASU he says that the poor would get the least amount of protection. But even if this is true, I don’t think it violates principles of neutrality or equal protection. If the state must feed the hungry, it is obligated to supply them with an adequate number of nutritious meals, but it need not finance fine dining at four star restaurants, right? I am not sure how much we disagree. I accept that the state must protect all citizens against aggression, but I believe the wealthy are entitled to live in gated communities, hire private security guards, etc. Whether, as you claim, “coercive taxation to fund universal protection against coercive aggression within a state’s territory poses no special ethical problem” depends on exactly what you mean by “special.” I think coercion must always be justified, and can be only for a very few categories of state action.

          • Many thanks for your kind words, which are much appreciated!

            On the presumption against coercion: granted that coercion is an evil to be avoided, how should it be avoided? Nozick distinguishes two forms of avoidance: side-constraints and setting moral goals (ASU, pp. 28-30). Libertarians like Rand, Rothbard and Nozick support (near-absolute) side-constraints against all coercion. Hayek, however, sets a moral goal of keeping all coercion to a minimum. The first view rules out both conscription and taxation. The second view permits both conscription and taxation for protective purposes, since both prevent worse coercion (see Hayek’s article in New Individualist Review, Summer 1961). A third, intermediate view might distinguish coercion against the person from coercion against property, supporting side-constraints against the former but setting a moral goal of avoiding the latter; this view would rule out conscription while permitting taxation for protective purposes.

            My point here is that only if one supports the first view – near-absolute side-constraints not only against coercion to the person but also against coercion to property – does taxation for protective services become problematic. But most of us reject such side-constraints where property is concerned and prefer to set a moral goal of avoiding coercion. Few of us consider it just for the state to deny its physical protection to a poor person for the sake of not taxing even the smallest fraction of the income of an affluent person (when the state claims the allegiance of both citizens). For anyone who supports side-constraints for persons but not for property, the individualist anarchist objection to taxation for protective purposes is unpersuasive.

            On the poor getting the least amount of protection: Nozick has his minimal state supplying its “least expensive protective policy” (ASU, p. 112) and its “unfancy policy” (p. 113) as compensation to independents. This means that his minimal state offers its most expensive and fancy protection policies to those who pay the most. Furthermore, both his dominant protection agency and his ultra-minimal state offer differently priced protection policies, and his minimal state differs from the latter only in offering its cheapest policy as compensation to non-clients, not in offering the same policy to all its clients.

            On the injustice of this discrimination: agreed, people have the right to buy extra food or extra protection on the free market, beyond whatever is supplied by the state. But the question before us is not whether people may buy extra services in the market, but whether the state, having claimed a monopoly of a service essential to life and limb, may distribute that service by ability to pay instead of need. If the female residents of a building were being menaced by a serial rapist, Nozick’s minimal state might supply the wealthiest home with five police guards, the next wealthiest with three guards, and the poorest with one guard (and if the rapist and the poorest resident were both independents, the latter would get no guards). The classical liberal state, in contrast, must give the same standard of protection to each citizen (including non-taxpayers) because it claims the same allegiance from each citizen. Does your own libertarian principle of fairness cause the state to distribute its protective services by ability to pay (like Nozick’s minimal state) or by need (like the classical liberal state)?

          • Mark Friedman says:

            Hi Paul:
            Because the columns are now getting rather narrow, I have appended my response to your first comment.

  3. George S. Karavitis says:

    When discussing compulsion in the arena of military defense it seems insufficient to consider only the funding of defense. All the defensive armaments that one might purchase are useless without human beings trained to use arms effectively. When it comes to actually facing the disagreeable discomforts, and the more terrible risks to one’s person, entailed in defending the state, there cannot be “free riders” either.

    • Mark Friedman says:

      Hi George:
      Good to hear from you again. I certainly agree with your first two sentences. However, I can’t go along with the third, at least as a general rule. Although I can’t say that no circumstances could ever possibly justify conscription, from the libertarian perspective it is little short of slavery and is thus to be avoided at almost any cost. A (just and peaceful) society’s very existence would have to be at stake, and then it should exhaust all possibilities short of the draft, such as generous compensation for serving. A nation under mortal threat that cannot raise sufficient volunteers even with ample compensation is perhaps a society not worth saving.

      • George S. Karavitis says:

        The world in which we exist is neither just nor peaceful. The small amount of peace and justice we can generate requires a community organized and able to repel the barbarians, both external and internal. The essence of republicanism is that all the powers of the state reside ultimately with the people. Princes and dictators have no right to compel their citizens to serve in their armies, but citizens of a republic have the right and duty to bear arms in defense of their republic. You cannot have rights in a vacuum. Every right also entails a coordinate responsibility. We can compel all the people in the lifeboat to row. It is the price of having a seat in the lifeboat. Of course anyone who does not want to row can always swim.

        • Mark Friedman says:

          The general problem with the argument you are making is that if you grant the state the moral authority to conscript citizens to fight against their will, you must also concede that the state has the moral right to take their property whenever the majority believes it is for the “greater good,” restrict their speech, subject them to intrusive regulations, etc. Certainly the imposition (loss of liberty) placed on an unwilling citizen through conscription is greater than the effect of these other things. I don’t see how you can have it both ways. If you disagree, please feel free to outline your theory of rights that has the implication that conscription is permitted, but these other abridgements of freedom are precluded.

  4. [Response to October 11 comment]

    I’m still unsure about your position on this issue; I hope I’m not trying your patience with further replies.

    Either taxation for the provision of universal protective services is presumptively unjust, because there are side-constraints regarding property; or it’s presumptively just, because innocent people should not be left unprotected against aggression when others prefer not to pay for their protection. If the first (individualist anarchist) presumption is true, then we need an argument (e.g., the libertarian principle of fairness) for overriding the side-constraints. If the second (classical liberal) presumption is true, then we don’t need such an argument. In your book you (like Nozick) adopt the first presumption; but earlier in our discussion you accepted the second (“I agree that truly impoverished members of society should not be left unprotected against aggressors”).

    The importance of the libertarian principle of fairness is that it answers the individualist anarchist’s objection to taxation (for protective services) in terms of the individualist anarchist’s own conception of justice. But if you agree with me that in a just society everyone’s rights must be enforced, then you don’t really accept that conception of justice. That’s why I’m uncertain about your position.

    Certainly, not all domestic protection services can be supplied at the national level. In the distribution of local services, there will inevitably be inequalities between communities. But this is because local services are supplied by separate democratic units, each with its own tax jurisdiction. Surely it has nothing to do with libertarian side-constraints against coercive redistribution between individuals. Therefore the permissibility of inequalities between communities doesn’t undermine the claim that the state must distribute its protective services on the basis of need rather than ability to pay.

    I’m very much enjoying your book, and I highly recommend it to anyone interested in political philosophy.

    • Mark Friedman says:

      Hi Paul:
      Thanks for the kind words about my book. It is nice to hear that someone, somewhere is actually reading it, and better yet, getting something out of it.

      With respect to your comments, when you get to Chapter 6 (first two sections) you will see that I argue that even within Nozick’s stringent theory of rights as side-constraints, a logical implication of his Lockean proviso (ASU, 178-81) is that innocent people threatened with starvation or other great hardship are entitled to a basic social safety net. Since I lay the argument out in detail there, I will not rehearse it here. So, while it is true that I accept the anarchist assumption about coercion in general, the actual substance/content of property rights is qualified by this proviso. Thus, it doesn’t violate the property rights of the well-off to tax them for purposes of providing a social minimum to the responsible needy.

      For the reasons set forth in Chapter 4, I don’t envision that protective services would be supplied by private protective agencies; so as long as everyone within a particular democratic unit is treated equally, I believe that justice is satisfied. Clearly, the wealthy would enhance their security, as previously discussed. Since the really poor typically pay little in the way of taxes, redistribution is happening under the radar. If, contrary to my expectation, protective services were actually provided by private agencies, I think it would be just for the state to require them to subsidize an “adequate” policy but not a deluxe one for the poor. I know this is vague, but this is often the case when outlining general principles.

  5. Michael Ezra says:

    Dear Mark,

    Paul Bogdanor has made me aware of this exchange. I am interested in this general subject. I have a copy of your book, recommended to me by Paul, but I must profess that I have not yet read it.

    I interject because I was intrigued by your comment that in your book you argue that, “innocent people threatened with starvation or other great hardship are entitled to a basic social safety net.” This piqued my interest sufficiently to take a look at the first part of Chapter 6 of your book to see what you say. I notice that you focus upon Joel Feinberg’s “Cabin” thought experiment whereby:

    an individual (“hiker”) lost in a blizzard who discovers a cabin in the mountains. The hiker can only survive by ignoring the “No Trespassing—This Means You!!” sign posted by the owner, breaking into the cabin, burning the furniture for heat and eating the stored food.

    From my understanding of your argument, you believe that owners of such cabins who would have such a sign would be “abusing their property rights.” Consequently you justify (if I understand you correctly) the hiker breaking into the cabin.

    I note you also cite Judith Jarvis Thomson’s argument on rights violation. I have read her argument in a different source to the one you cite. My own source is her chapter “Some Ruminations on Rights,” contained on pages 130-147 of Jeffrey Paul (Ed.), Reading Nozick: Essays on Anarchy, State and Utopia, (Rowman & Allanheld, 1983). Here, Jarvis Thomson also uses a thought experiment. A variant of it that she mentions on p.138 is as follows:

    There is a child who will die if he is not given some drugs in the future. The only bit of that drug which can be obtained from him in the near future is yours. You are out of town, so we telephone you to ask. You refuse consent. You keep your supply of the drug in a locked box on your back porch.

    Thinking about this experiment leads me to a conclusion that one can use force to break into the box to provide the drug to the child. I suspect (and please correct me if I am wrong) that you would concur with this assessment. As you comment above:

    it doesn’t violate the property rights of the well-off to tax them for purposes of providing a social minimum to the responsible needy.

    I find Jarvis Thomson’s thought experiment quite compelling. It justifies the non-consensual and forceful taking of property from person A to provide it to person B, or, in other words, it justifies redistributive taxation. The extension of this is that it seems to me to be a moral justification of what we have in the UK: a National Health Service, a health service funded by taxpayers to provide “free” healthcare for all.

    The problem is that as soon as someone goes down that route then they are hardly in line with the thinking of most libertarians.

    I should be interested in your opinion on this.

    • Mark Friedman says:

      Hi Michael:
      Thanks for reading my book and stopping by with this comment. I believe you correctly understand my reasoning as to the nature of property rights, but I don’t agree that it extends as far as something like your NHS. The crux of my argument, which I think is inherent in ASU (although not fully developed by Nozick), is that property rights are qualified by the Lockean proviso. Ths proviso is, in turn, intended to ensure as I say at p. 132 that “original appropriation not violate any other party’s natural right to self-preservation.” Thus the cabin or medicine owner’s rights do not include the discretion to deny this asset to innocent others in desperate need. As a side note, I do think the owners of the cabin/medicine would be entitled to some form of compensation for the nonconsensual use of their property.

      So, if there are impoversihed citizens about to die of an easily curable disease, the state would be justfied in using coercive taxation to save these lives. However, as I understand it, your NHS does way more than this, essentially replacing the private practice of medicine with a mandatory government system that everyone uses, not just the abject poor. This is a level of state coercion that no libertarian could accept.

      I agree with your final comment about libertarianism, at least in the popular mind. However, the reality amongst libertarian scholars is more complex. While Rand and Rothbard might fit this image, Hayek (generally considered a key libertarian thinker) does not. Even Nozick hedges his bet (p.30n) by holding open the question of whether side constrants might be justly violated “in order to avoid catastrophic moral horror.” The point of the argument above is to show that even within his systemn of thought, there is room for a minimum social safety net, even if he does not draw this specific conclusion.

  6. Michael Ezra says:

    Dear Mark,

    Thank you very much indeed for your response. The problem I have, and I suspect that others have as well, so I would expect you to be familiar with answering this objection, is that I do not see your argument as Nozickian. It seems to me (and I apologise if I sound harsh in this assessment) is that you are trying hard with the Lockean proviso to interpret what Nozick was saying in a way that Nozick did not intend.

    As you are very aware, with his Wilt Chamberlain example, experience machine, and others, Nozick was very capable in his use of thought experiments. If he had wished to allow the Lockean proviso to be used in such a way so as to allow for Joel Feinberg’s cabin to broken into and furniture burnt or Judith Jarvis’s Thomson’s lock box to be broken into and drugs taken without consent, he could have easily devised his own thought experiment to show that is what he thought. Alternatively he could have made it very clear in the text. He didn’t. Indeed the opposite seems to me to be the case. This is what Nozick says at the very beginning, or, to be precise, his second paragraph of his preface on page ix of ASU.

    Our main conclusions about the state are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate persons’ rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right. Two noteworthy implications are that the state may not use its coercive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protection. [Emphasis in bold is added.]

    As Nozick has explicitly stated that “the state may not use its coercive apparatus for the purpose of getting some citizens to aid others,” I find it difficult for you to suggest that it would be Nozickian for the state to tax the wealthy “for purposes of providing a social minimum to the responsible needy.”

    It can also be added that the type of state that you are suggesting would require the equivalent of an Inland Revenue Service as well as a social welfare department where people who were the “responsible needy” could claim their benefits to reach the “social minimum.” The addition of these departments seems to me beyond what was considered by Nozick to be part of the minimal state.

    I should be grateful for your comments.

    • Mark Friedman says:

      Thanks for your follow-up comment, and I can certainly understand your reasoning here, but as set forth below I must disagree at least in part. As you will appreciate, the purpose of my book is not to defend to my last breath the literal truth of every word in ASU. In some instances Nozick’s reasoning is simply faulty, and I attempt to offer alternative justifications. In other cases I think his basic principles are sound, but he did not draw out all of their logical implications. Such is my view with respect to the social minimum.

      The language that you quote includes a reference to the violation of “persons’ rights not to be forced to do certain things.” Of course, this leaves open the question of the exact content of the rights at issue. On p. 180 of ASU Nozick makes clear that the owner of all the water in the desert cannot charge what he will, because “the Lockean proviso limits his property rights.” By the same logic, the owner of the only island in a certain area cannot “order a castaway from a shipwreck off his island.” Ibid. And, as Nozick says on pp. 180-81, such cases do not involve property rights being overridden, but rather “considerations internal to the theory of property itself” are used to resolve them.

      Similarly, I argue at pp. 130-33 and 137-40 of my book that Nozick’s interpretation of Locke’s famous proviso, and its implication for the scope of property rights, is consistent with a social minimum for the blameless needy. On this reading, the wealthy do not have the right to reject minimal taxation if required to save the lives of innocent others. I do not claim that Nozick would agree (he’s dead and I can’t ask him), but I do not think he could reject this interpretation without altering his understanding of Locke’s proviso.

      Final comment, to your last paragraph–clearly private (voluntary) efforts at relief should be proven inadequate before we resort to state coercion. This should be a last resort, and in any case I think there are much better alternatives to things like the NHS, such as giving people the funds required to purchase health insurance (or housing, etc.) in the private market.

  7. George S. Karavitis says:

    Dear Mark,
    Here’s my reply regarding compulsory service under certain circumstances. I’m wondering if we really havve a fundamental disagreement or simply a concern about what circumstances may trigger the necessity.
    Permit me to respectfully disagree. To begin, it does not seem necessary to propose a comprehensive theory of rights different from your own, that would justify compulsory service to a legitimate state in time of war. Your article accepted the proposition that the state, in extremis could compel one to contribute their property to the collective defense. Contribution of one’s services, while perhaps a greater imposition, is not essentially different in kind. One exaction imposes on the right of property and the other on the right of liberty, but if you allow the one in extremis, you cannot logically deny the other. Now I fully agree that these exactions are only legitimate in certain circumstances, which relate both to the nature of rights and the necessity of their defense. The state that asks these exactions must be a sovereign with the requisite legitimacy to impose such on its citizens. In my view the only sovereign that can do this legitimately is a republic.
    I am a historian, not a philosopher, so my conception of human rights is derived from the development of these concepts historically. In my view the best exposition on rights is Jefferson’s short, second sentence in the Declaration of Independence, which is a pretty good general distillation of the thinking of Hobbes and Locke regarding rights. Whether one thinks of human rights as originating in a creator, or as inherent in the nature of human beings, both these sources are essentially constructs of the human mind and rights are therefore essentially “human artifacts, created by a ‘social contract’ and made possible by the state and the sovereign power that provide[s] order and stability.” [Anthony E. Hartle, Moral Issues in Military Decision Making, (University of Kansas Press, 2nd Ed. 2004) p. 83.] Rights cannot exist without a society to enable them and defend them, and in my view every right has a corresponding responsibility which is also incumbent on the rights holder, to render the right effective.
    In a republic the people are the sovereign and therefore the ultimate source of rights. Practical, realistic and defensible rights are those we the people grant to each other in the “social contract” and stand ready to defend for each other. The history of theoretical rights without any real existence, granted by sovereigns who ignore these supposed rights at will, is extensive. Rights that cannot be enforced and defended by the rule of law are illusory. Yet the rule of law requires a collective defense against those who would ignore it – what I term the barbarians, both internal and external. “We the people” are required to be vigilant in the assertion and protection of our rights, lest they be lost. This vigilance, of necessity, extends to defending the existence of the sovereign state, which guarantees the real and practical existence of those rights. If such a state is destroyed, then the existence of theoretical rights is irrelevant. It is to this concept of rights and their defense that the Founders of this republic mutually pledged their lives, fortunes and sacred honor.
    Now as a practical necessity the manpower required for the defense of the state, in certain circumstances, cannot be procured through purely voluntary participation, just as the financial requirements cannot be procured through voluntary contribution. Two historical examples applicable to this republic are the Civil War and World War Two, where the threat was existential. I allow that one can debate whether such exactions are really required in some circumstances, but where there is no doubt that the need is sufficiently dire I will not accept that a “right” exists that would permit the practical destruction of the means of defending all rights.

    • Mark Friedman says:

      Hi Steve:
      Thanks for the follow-up comment. First, I believe we are operating under very different theories regarding the ethical basis for rights. I follow here Robert Nozick, and a summary of his views and mine can be found under the link “Natural Rights Libertarianism.” Thus, I reject the notion that rights are merely the product of a real or imagined social contract or some form of social convention. Following Nozick, I see rights as the appropriate respect due moral agents unless and until they act or unreasonably threaten to act in a way that violates the rights of other moral agents.

      Using this theory, it is clear that conscription is a far greater intrusion on the moral discretion of persons than taxation. Conscription makes one a virtual tool of one’s superior officers; cannon fodder if ordered, and thus potentially terminates moral agency altogether. Coercive taxation clearly leaves the agent with much greater freedom and does not threaten his life. This is why on my theory of rights it would be necessary to exhaust all other possibilities before resorting to the draft.

      As I said initially, I do not claim that there is no possible case where conscription might be justified, but (based on your first comment) you seem to be arguing for it in peacetime under less than exigent cicumstances. I am not sure how your theory of rights supports this, and in any case, it seems implausible that “every right has a corresponding responsibility which is also incumbent on the rights holder, to render the right effective.” Does the right of an innocent person not to be murdered depend on him/her fulfilling some responsibility? What would that be? Where under your theory does the right not to have all one’s property confiscated for social engineering projects come from, if the majority thinks this a good idea? Or, your right not to have your speech suppressed if the majority finds it offensive?

  8. Pingback: Are There Limits to Natural Rights? | The Existential Christian

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