This is the second in a series of commentaries on the essays in The Cambridge Companion to Nozick’s “Anarchy, State, and Utopia,” Bader and Meadowcroft eds. My first review is here: //naturalrightslibertarian.com/2012/10/justifying-the-minimal-state-part-ii/ . In this post, I will analyze Chandran Kukathas’s contribution, “E Pluribus Plurum or, How Not to Get to Utopia in Spite of Really Trying.” While Prof. Kukathas provides a useful exegesis of Nozick’s libertarian conception of utopia, along with a number of interesting observations, I do not believe that his critique lands any substantive blows against it.
Nozick begins Part III (Utopia) of ASU (p.297) by recapitulating what he claims to have established in Part II, “No state more extensive that the minimal state can be justified.” He then immediately poses the challenge that he will attempt to meet in the remainder of his book: “But doesn’t the idea or ideal, of the minimal state lack luster? Can it thrill the heart or inspire people to struggle or sacrifice? Would anyone man the barricades under its banner?”
Very briefly, his affirmative answer is grounded in the role of the minimal state in safeguarding a “framework for utopia;” that is, “a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others” (ASU, 312). This world will feature a virtually unlimited number of distinct communities, offering its members the widest possible menu of lifestyle and value choices. The libertarian state’s function is to prevent one group or community from aggressing against another and to protect the right of individuals to exit their voluntary associations when and if they no longer satisfy their preferences. See my earlier discussion: //naturalrightslibertarian.com/2011/07/utopia-in-asu-a-reply-to-barbara-fried-2/ .
Kukathas expressly denies Nozick’s claim that “The framework for utopia we have described is equivalent to the minimal state” (ASU, 333). He contends that “the root of the problem lies in Nozick’s initial rejection of anarchy, for the idea of utopia he wants to defend in one that is achievable outside the state but not within it.”
Kukathas then goes on to argue, on a variety of grounds, that the minimal state is ill-suited to serve as the guardian of this structure, and that in fact anarchy is the superior choice. First, the minimal state would need to collect taxes, and this burden might choke-off those communities that did not produce a “significant surplus” (Cambridge Companion, p. 298). Moreover, once the state involves itself in ensuring the right of exit, it must decide “how easy exit is to be, how easy should it make it?” (CC, 299). Here, and elsewhere, the state may mess things up, obstructing the process by which viable, attractive mini-societies are formed and sustained.
Indeed, the net effect of the state may be to frustrate and destroy the benign environment that Nozick contemplates: “The state will never be merely a framework, although some states will be more minimal than others. The state will itself offer to people a way of life. The difference is that it will have the power to defend itself with force — to tax and restructure society in its own interests” (CC, 301). And, thus concludes Kukathas, Nozick fails to inspire us, he gives us not utopia, but merely “the state” (ibid.).
I confess that I find this a puzzling and unsatisfying argument, which is based on my perception that Kukathas has badly missed the nature of Nozick’s argument for the minimal state. His defense of its moral legitimacy does not rest on any practical advantages it might enjoy relative to anarchy, but rather on the claim that, if we start with “a nonstate situation in which people generally satisfy moral constraints and generally act as they ought…[and] If one could show that the state would arise by a process involving no morally impermissible steps…this would justify the state” (ASU, 5) (my emphasis).
In other words, even if we began with “the best ararchic situation one reasonably could hope for” (ibid.), nevertheless peaceful people acting in their own rational self-interest would through the invisible hand of the marketplace bring about the (minimal) state. First, people would contract with protective associations to provide security, and since, Nozick claims, this industry is a type of “natural monopoly,” a dominant protective agency would emerge, and through a series of additional steps, this community would end up governed by a minimal state (ASU, 108-13), i.e. one that limits itself to “protecting all its citizens against violence, theft, fraud, and to the enforcement of contracts and so on” (ASU, 26).
Note, that Nozick is not claiming that any state has actually arisen this way, or indeed that there has ever been a truly “minimal” one. The process giving rise to this result might be derailed for any number of reasons: for example, because individuals are not generally rational in the way anticipated in Nozick’s model, or because for selfish reasons a majority in this society may demand that the state do more than simply protect them from aggression.
Nevertheless, Nozick’s claim that from a state of nature, a community comprised of members generally disposed to respect the equal rights of other persons would through a series of innocent and voluntary transactions produce the minimal state, poses a serious challenge to the anarchist. For those who share Nozick’s basic commitment to the stringency of individual rights, and Kukathas does not criticize it, what moral basis exists for setting aside the product of these freely made choices? By analogy, if in a truly free market a can of tomato sauce sells for $.89, doesn’t this establish at least a presumption that this is the “right” price?
More practically, if a community comprised typically of law-abiding persons would freely transact their way out of anarchy, how (in the absence of a state) could they ever be forced back into it without a gross violation of rights? If Nozick’s imaginary narrative regarding the origins of the minimal state is sound, then anarchy has no plausible claim to moral superiority.
Because his objection to Nozick is essentially that the minimal state will despoil his utopian framework, Kukathas does not challenge, as many other philosophers have, Nozick’s highly controversial claim that a state would evolve innocently from a state of nature. Indeed, there are many reasons to conclude that the minimal state could not arise without violating the rights of community members, and thus is not morally justified [see Nozick’s Libertarian Project, 79-83], yet this would not establish, as Kukathas hopes to, that the minimal state is incompatible with Nozick’s vision of utopia.
Accordingly, Kukathas limits himself to the observation that “The state as it now exists has a life, and interests, of its own. If one is to answer the question why anyone should obey the state or recognize the legitimacy of its authority, one must supply an account of the state that makes sense of its character. Nozick’s account cannot do this” (CC, 295). But this comment refers to the “character” of actual, historical states, not to the idealized conception outlined by Nozick. Kukathas is correct that Nozick supplies no reason why we should obey any actual state, for he has no need to. His burden is simply to show that his idealized version of the state, an entity whose charter is limited as described above, is consistent, as a matter of theory, with his framework for utopia.
Nozick purpose in Part III is to draw an inspiring portrait of the minimal state as the embodiment of a meta-utopia. The question of whether, given the nature of the governed and the character of historical states, this vision could best be realized in practice by a state or by its absence is an altogether different line of inquiry, and one not undertaken by Nozick. If it should turn out to be the case that Kukathas is correct in his judgment, this would not discredit Nozick’s idea of the minimal state as the ideal framework for utopia any more than people’s tendency to act unjustly discredits the Torah’s command: “justice, justice, you shall pursue.”
In any case, philosophers have no special authority or expertise in matters of institutional analysis. While actual states have an abysmal record in respecting human rights, I know of no territory in which ordered, rights-preserving anarchy now reigns. Where anarchy does exist, it is violent and chaotic. The fact that humanity has, through its actual conduct, seemingly rejected anarchy in favor of even corrupt and/or abusive states should give us pause. While Kukathas has solid grounds for mistrusting existing states as prospective guardians of utopia, I cannot imagine any reasonable basis for his apparent confidence in anarchy. But, as argued above, this is all beyond the scope of Nozick’s actual argument.