Nozick, Through Thick and Thin

Perhaps harkening back to Talmudic disputations, it is often joked, “two Jews three opinions.” Something similar may rightly be said about libertarians, who are always discovering new subjects to quarrel about. In addition to existing disagreements over (among other things) the correct moral grounding for libertarian rights, the relative virtues of ordered anarchy and the minimal state, foreign policy, open borders, intellectual property, we can now add the question of “thin” versus “thick” libertarianism.

The first view, which appears to be the dominant one, holds that libertarianism should be regarded exclusively as a political ideology. Meaning for anarcho-capitalists, the elimination of all states or, for minarchists, dramatically limiting the role of the state to its few legitimate functions. On this account libertarianism only requires that we, acting individually or through the state, respect the natural rights of other persons against force and fraud, and does not impose any positive duties, such as beneficence.   

In contrast, thick libertarians hold that this distinction is conceptually untenable because the same moral principles that limit the scope of permissible state action also imply certain additional obligations towards our fellow human beings. For example, James Taylor in a recent post on the popular Bleeding Heart Libertarians site asserts that the influential–for libertarians–Kantian norm of “respect for persons” forbids racial and religious discrimination. If, he says, you engage in such behavior, “then you’re treating persons primarily as tokens of types of people, and not primarily as individuals. And that’s just not an individualist–or libertarian–view.”

However, as I and other commenters noted, if Taylor regards respect for persons as just another name for non-discrimination, then he is merely engaging in semantics. If not, some more formal argument is surely needed, as his interpretation is ungrounded in any deeper values, and would forbid blacks from preferentially hiring, buying from, or extending charity to other blacks, Jews from favoring Jews, and so on. It not at all obvious that such conduct is even morally wrong, and thus off limits to libertarians.

I didn’t get into this in my BHL comments, but since Nozick is certainly the most influential individualist theorist in academia, I think it is worth considering how he should be categorized along these lines. To cut to the chase, it is evident that the libertarianism he defends in ASU is decidedly “thin.” To begin, his oft-quoted first two sentences indicate that he is questioning the moral authority of the state and not attempting to outline a comprehensive moral theory that might include positive obligations to our fellow humans.[1]

More importantly, while Nozick accepts Kantian notion of respect for persons as the starting point for his derivation of libertarian rights, he is far too astute to stop there, as does Taylor. He asks, “What about persons distinguishes them from animals, so that stringent constraints apply to how persons may be treated, yet not to how animals may be treated” (ASU, 45). Nozick’s answer is the capacity competent adults have for moral agency, and our “ability to regulate and guide [our] life in accordance with some overall conception [we] choose to accept.” (ASU, 49).

The supreme value Nozick places on personal autonomy implies that rational agents must be permitted to live as they choose, subject only to their having due regard for the equal rights of others. See my analysis in Nozick’s Libertarian Project, 26-8. Accordingly, the use of force or coercion against innocent persons violates their libertarian rights, but nothing in his reasoning implies any commitment to an ethic of non-discrimination. Indeed, the opposite appears to be true, since respect for rational agency suggests that we must accept (non-violent) behavior we strongly disapprove of.

However, Nozick repudiates this aspect of his theory of rights in his subsequent essay “The Zigzag of Politics,” collected in The Examined Life (Simon & Schuster, 1989) (“EL”). There, he says that the “libertarian position I once propounded now seems to me to be seriously inadequate.” (EL, 286-7).[2] Chief among these self-reported deficiencies is his failure to recognize that autonomy includes the right to express certain values “jointly” and “politically,” including those “we choose to do together through government in solemn marking of our human solidarity, served by the fact that we do them together in this official fashion and also often by the content of the action itself.” (EL, 287).

Applying this framework to our polity, Nozick starts with the premise it is “intolerable” if a “large portion of the society” discriminates against a group to their “considerable detriment,” and so concludes that “there is justification” for antidiscrimination laws protecting “blacks, women, or homosexuals” in employment, public accommodations, rental or sale of dwelling units, etc.” Considerations of “generality and neutrality then transforms these into laws against [discriminating against other groups], even though the rare discrimination against others does not cause them any great burden.” (EL, 291).

Without going into great detail here, Nozick’s argument is unconvincing. First, he simply helps himself to the assumption that the named groups he would protect will suffer serious harm absent antidiscrimination laws. I believe this claim was already dubious in 1989, and indefensible almost three decades later.

Second, he gives us no reason to accept the idea that an agent’s supposed right to engage in “self-expressive and self-symbolizing activities” (EL, 287) by means of political action should override the right of other agents not to be coerced, as painstakingly delineated ASU. This challenge is particularly acute because Nozick would apparently enforce this expressive “right” even when exercised in favor of communities that suffer only “rare” discrimination that would “not cause them any great burden.”

Finally, Nozick fails to articulate any principle that would keep this putative expressive right within plausible limits. Why, for example, should this not take the form of compulsory taxation to erect elaborate public memorials and to produce films and plays that celebrate those inspiring politicians and private figures who have, in the eyes of the majority, best exemplified our highest values?

Just as with Elvis, I much prefer the thin to the thick version of Nozick, but I would be happy to consider dissenting views if my readers wish to share them.

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[1] “Individuals have rights, and there are things no person may do to them (without violating their rights). So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do.” (ASU, ix).

[2] It is worth noting that Nozick’s dissatisfaction with his earlier reasoning only went so far. In an interview he gave with the libertarian journalist Julian Sanchez shortly before his death, he replied as follows to the question, “Would you now, again, self-apply the L-word?”

But I never stopped self-applying. What I was really saying in The Examined Life was that I was no longer as hardcore a libertarian as I had been before. But the rumors of my deviation (or apostasy!) from libertarianism were much exaggerated. I think this book [Invariances] makes clear the extent to which I still am within the general framework of libertarianism, especially the ethics chapter and its section on the “Core Principle of Ethics.”

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