2018 ISSUE

Philologoi : Φιλόλογοι (pl.)

lovers of words, dialectic, and conversation.

Nozick's Immaculte Misconception of the State

by Evan J.P. Green

Historically, the pre-political “state of nature” has been almost universally regarded as an undesirable state of affairs by political philosophers. Often this is merely accepted as fact, but some liberal and libertarian theorists who regard individual liberty as a primary good are challenged by the concept of a purely anarchistic society. A philosopher, like Nozick, who emphasizes minimal restrictions on personal freedom cannot simply advance their own theory of the most just society without reckoning if there is actually reason at all for there to be an (inherently restrictive) state instead of said anarchy. One method such a philosopher can use for proving the legitimacy of a hypothetical state would be to show how such a state could be derived from the state of nature without violating whatever rules or rights the philosopher regards as critical. In this paper, I will argue that Nozick’s argument for a minimal state fails because his argument for the creation of a “dominant protective agency” of the nature he describes fails to follow from his other arguments for a minimal state.

 

Nozick’s argument for a minimal (but not ultraminimal) state as the most just state has three steps. The first step is to answer what he calls “[t]he fundamental question of political philosophy, one that precedes questions about how the state should be organized… whether there should be any state at all.”[i] The second step is to figure out what principles the state should be organized by, and the third step is to examine and understand what a state organized by these principles should look like. These steps are more interrelated than this simplistic three step explanation makes it seem, because obviously the question of “whether there should be any state at all” requires, in part, a basic idea of what a hypothetical and justifiable state should be like. In any case, Nozick begins (like Locke) with the state of nature.[ii] He claims that “[i]ndividuals have rights, and there are things no person or group may do to them (without violating their rights).[iii] Nozick’s conception of the state of nature and the rights of individuals is Lockean: the state of nature is Locke’s “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;”[iv] the rights of the individual are to not be harmed “in his life, health, liberty, or posessions”[v] and to “defend themselves or others”[vi] against invasions of these rights as well as “make satisfaction for the harm he has suffered.”[vii] In other words, individuals have the right to not be physically harmed, to own property, to not be deprived of their personal freedom (as long as they’re not infringing on the freedom of others), to defend these rights when they’re being threatened (except, of course, when their rights are being threatened as a result of threatening the rights of others), and to punish others for violating these rights (but only to a certain and reasonable extent). Nozick goes on to point out that a lot of problems can (and do) arise from this simple state of affairs. People, as individuals, aren’t really able to protect these rights while still being able to enjoy their benefits. Personal disputes, and even feuds, will arise from disagreements over whether or not one individual is violating another’s rights.[viii] For example, if A owns a cow, and B owns a steer, and A’s cow wanders onto B’s land and mates with B’s steer, A and B will probably disagree over to whom the calf belongs.

 

Even worse than the problem of disagreement is the fact that a person in the state of nature “may lack the power to enforce his rights… [and] be unable to punish or exact compensation from a stronger adversary who has violated them.”[ix] A priori human freedoms are unfortunately only metaphysical protections, not physical.

 

So, Nozick argues, in the state of nature individuals will naturally form “protective associations” with other individuals so they can protect themselves from physical aggression that violates their rights. These are as simple as a father protecting his son from a home invader or a friend watching another friend’s property while they’re on vacation, and they’re not necessarily reciprocal or formally organized. The next step up from a simple protective association (and here we start to shift from the state of nature to the political state) is a “mutual-protection association” where “all will answer the call of any member for defense or for the enforcement of his rights.”[x] People, in general, like being forced to maintain an armed watch over their property less than they enjoy doing basically any other human activity, so these mutual-protection associations will almost inevitably arise.[xi] Even if being in one of these mutual-protection associations is almost always more desirable than not, they are still “inconvenient” in two ways: everyone is obligated to help everyone else out when the time comes (even if they’d rather not); and the association can be abused by “cantankerous or paranoid members” who constantly ‘send out the NAP-signal’ for frivolous reasons, or by malicious members who “under the guise of self-defense… use the association to violate the rights of others.”[xii] The presented solution to this is for the mutual-protection association to evolve past simply being a military force and take on some kind of role as an arbitrator and investigator of disputes, becoming a de facto privatized justice system.

 

Nozick envisions the size of the mutual-protection association to expand as well, through the process of the free market. He goes into a lot of detail about this process, but for the purposes of this paper it’s enough to simply present Edward Feser’s summary: “Larger and more resourceful firms will, because they can provide better protection at a cheaper price, tend to attract more subscribers. And given that so much is at stake – one’s property, liberty, indeed one’s very life – this is one market where bigger will be seen necessarily to mean better, and most individuals will flock to the most powerful agency.”[xiii] Nozick switches from the term “association” to “agency” at this point because he assumes a change from simple mutual agreements between individuals to a more formal client/agency relation. He seems to implicitly assume that a free market situation will develop, and the reasons behind this assumption and whether or not it is a fair one will be examined later.

 

Eventually there will only be a few major mutual-protection agencies in a given geographical area. Through either mutual agreement, or as the result of physical conflicts between agencies (Nozick seems to accept open warfare between mercenary armies as an element of his libertarian political theory), one “dominant protective agency” will come to dominate over each given geographical area.[xiv] And thus out of anarchy a state arises that both “violates no one’s rights and is preferable to anarchy.”[xv]

 

But has Nozick actually succeeded in his goal of providing an account in which a minimal state arises without violating the rights of any individual? Is the dominant protective agency really a state? The general conception of a state features both the monopoly of force and some moral right to possess this monopoly (beyond mere ownership of weaponry), and it’s not clear if a dominant protective agency possesses both of these features.[xvi]

 

Nozick tackles this question in a section of Anarchy helpfully entitled “Is The Dominant Protective Association A State?”[xvii] Nozick admits that the dominant protective association “might fail to satisfy a minimal conception of a state…” because “it appears to allow some people to enforce their own rights, and… it appears to not protect all individuals within its domain.”[xviii] Nozick offers one minimal definition of a state that the dominant protective association fails to satisfy: “having a monopoly on the use of force in a geographical area, a monopoly incompatible with the private enforcement of rights.”[xix] By virtue of Nozick’s Lockean conception of human rights, one always has the right to privately enforce their own rights. The foundation of mutual protective associations is simply that it is easier to outsource this job than to always handle justice privately. In contrast, U.S. law is based, in part, around the idea that some violations are not to be handled privately (consider the difference between the names and natures of the cases “Brown v. Board of Education” and “People v. O. J. Simpson”).

 

Nozick responds to this objection by pointing out that, historically, there have been states that existed “without actually monopolizing the use of force it has not authorized others to use; within the boundaries of a state there may exist groups such as the Mafia, the KKK… striking unionists… that also use force” and goes on to argue that “[c]laiming such a monopoly is not sufficient… nor is being its sole claimant a necessary condition.” He adds that not everyone under a state has to recognize the legitimacy of the state’s claim to a monopoly of force, and thus “forming sufficient conditions for the existence of the state… turns out to be a difficult and messy task.” [xx] So, Nozick thus presents his own “necessary condition for the existence of a state[,]” that it “announce that, to the best of its ability… it will punish everyone whom it discovers to have used force without its express permission…”.[xxi]  This disqualifies a system of only private protection agencies from being (in its totality) a state, because the private agencies don’t make announcements of that kind.

 

But even if Nozick deals with the issue of monopolizing force in this way, there’s still the problem of the dominant protective agency lacking the same kind of geographical authority that other conceptions of the state do. By this, I mean that typically every person living within the bounds of a state are under the legitimate authority of said state, but it seems that the only people under the legitimate authority of a dominant protective agency are those paying for the services of the agency.[xxii]

 

Putting this conceptual issue of statehood aside, there exists also a practical issue concerning the dominant protective agency’s ability to even carry out its duties. As Robert Paul Wolff presents it:

"Leaving pure theory to one side, the significance of the limitations on Nozick’s “state” will depend on certain matters of fact about which he is silent. His language encourages us to imagine a society in which no more than a handful of individuals choose not to sign up with the dominant protective association. But suppose as many as a sixth or fifth of the residents of a territory are nonclients. Suppose, further, that they are geographically scattered and not easily identifiable by dress, manner, or occupation. How will the minions of the state-like entity be able to tell who is and who is not a client, as they walk street patrol or rush into a barroom to break up a brawl? Will the state-like entity be forced to conclude that, for all practical purposes, it must claim to be the sole authorizer of violence (with due compensations paid, of course)?" [xxiii]

 

As a response to these kinds of objections, Nozick goes on (in a later section of his book) to explain how the dominant protective agency would come to have authority over basically all residents of its territory. Obviously, the dominant protective agency has some legitimate authority when dealing with independents in the context of prohibiting them from behavior that would harm or risk its clients, and in dealing with situations in which harm to its clients has occurred or is currently occurring. But this seems to lead to a paradox- in prohibiting independents from violating the rights of clients, the rights of those independents are violated. [xxiv]

 

Suppose the dominant protective agency of Liberia is Desperado Enforcement LLC. In order to cut down on the risk of harm coming to its clients via muggings and home invasions, Desperado institutes an 11:00 PM curfew. Desperado is able to legitimately enforce this curfew on its own customers, as they have specifically agreed in their contract to allow such measures, but if they were to enforce this curfew on independents it would violate their natural right to go where they please as long as they aren’t trespassing (and suppose in this case they aren’t). But if Desperado doesn’t enforce the curfew universally, and a client’s house is broken into, then they’ve failed to maintain their end of the contract. The whole premise of protective associations is that they’re less of a burden on the individual than maintaining a 24 hour watch on their property, and just as effective. If they fail to meet these conditions, they’re not just useless, but immoral. They’re a limit on liberty with no equal compensation for that burden, and they violate the institution of the mutual agreement that creates them. So Desperado has two choices that seem to both inevitably lead to injustice and a delegitimizing of their agency: either maintain their agreement with their clients and violate the rights of independents, or respect the rights of independents and violate their agreement with their clients. This is a serious issue for Nozick, not just because it challenges his conception of the dominant protective agency as a kind of state, but ultimately undermines the basic libertarian principles that Nozick uses to justify the creation of protective associations.

 

Nozick’s solution to both of these problems is for the dominant protective agency to provide compensation to the independents for its imposition on them- and what better way for a protection agency to compensate someone than by providing protective services? The alternative would be to not protect them at all and just provide monetary compensation for harm that occurs due to prohibition after the fact. Nozick argues that simply providing protection is the less expensive option, and therefore the better.[xxv] In this way, the dominant protection agency gains authority over all persons within its territory, and becomes a state.[xxvi]

 

There are a number of objections to this solution. The first thing that must be made clear is the nature of the “prohibition” independents (and clients) are faced with. In the example of Liberia, the prohibition was merely on staying out late, but Nozick takes the argument to its logical conclusion by positing that dominant protective agencies prohibit all personal enforcement of rights and personal punishment of rights violation.[xxvii] This seems to be a rather extreme prohibition on behavior, especially considering that Nozick regards these two rights (to enforcement and punishment) as so inalienable that his entire philosophical project is devoted to devising some way a state can arise without either of these rights violated. But now these rights seem to actually be quite alienable if a large enough corporation deems such to be the most effective method of upholding their contract.

 

Imagine A lives on his farm in Liberia surrounded by B, C, & D and their farms. B trespasses onto A’s land, ignoring repeated orders to leave, and A shoots him with his shotgun, injuring him (doing the minimal harm required to scare him off). According to Nozick, this is an acceptable course of events if everyone involved exists in the anarchistic “state of nature.” Suppose B, C, & D were members of a mutual protective association. They would probably rally to B’s aid, but according to Nozick they would not be morally justified in doing anything beyond caring for B’s injuries. They cannot violate A’s right to justifiably protect himself (but they might accidentally, in their haste, do so anyways).[xxviii] Suppose B & D decide to divide labor and pay D to do all of the protective work and arbitration of disputes. According to Nozick, while D has the moral right to prohibit A from privately enforcing justice if A’s procedures are too risky or dangerous, he has no other special right to prohibit or enforce anything in this situation.[xxix] But if we suppose that B, C, & D have united and hired D (Desperado) as the dominant protective agency of Liberia, according to Nozick, D now has the right to prohibit A’s use of force, seek compensation for said use of force, and even consider A as a client of his agency. What makes the final situation so different? It seems to be only different as the result of some strange alchemy of a majority and a contract.

 

Nozick justifies this discrepancy by appealing to the previously stated principle that someone has the moral right to prohibit another from privately enforcing justice if those procedures are too risky, dangerous, or excessive.[xxx] The dominant protective agency will develop procedures of justice that it and its clients all regard as reliable and fair. This gives it the right to prohibit the use of other procedures on its clients.[xxxi]

 

But if we examine Nozick’s justification for the dominant protective agency as a state in its totality, something seems to be fundamentally off. The dominant protective agency has legitimate authority over all in its territory because independents become clients as compensation for their rights being constrained by the agency. The agency has this right to prohibit independents from some behaviors because it has the right to make sure only procedures of justice it finds acceptable are applied to its clients (and only by itself). But Nozick explicitly states that this right (to prohibit procedures) comes from the fact that “[a]s the most powerful applier of principles… it enforces its will, which, from the inside, it thinks is correct.”[xxxii] This seems like it should be horrifying to someone so deeply committed to natural rights as Nozick- that the right of a dominant protective agency to impose itself on independents is reliant only on an arbitrary agreement between the agency and its clients that the agency’s procedures are acceptable. Nozick’s only real response to this is his requirement that prohibitions of behavior and other limitations by the state must be justified to the most strenuous standards of effectiveness in protecting the property and health of clients.[xxxiii] Assuming this extends to the process by which procedures of justice are developed, the practical issue of an agency’s procedures (and thus justification) being tyrannical or unjust in any other way is solved. Still, however, the mechanism by which a dominant protective agency assumes authority and approaches the concept of statehood relies not on the principles of justice, but personal agreement. The procedures of justice practiced may reach the ideal of a process that is fair to all, does not falsely convict, and punishes accordingly to the crime’s severity; but it is not that the procedures actually meet this standard that justifies the agency’s imposing prohibitions on independents, merely the agreement between agency and clients that the standards look like they do.

 

As mentioned earlier, Nozick speaks frequently in the economic language of markets, division of labor, compensation, perceived benefits, and so on. One major effect of this language seems to be that it ends up limiting Nozick’s conception of human interactions to that of market interactions, and thus causes him to ignore non-market processes by which a legitimate state may evolve (without violating anyone’s rights, of course).[xxxiv]

 

Much of Anarchy is dedicated to explaining how market forces can result in the creation of a dominant protective agency (and then a state) through individual choices, but he totally ignores the possibility of people forming a state or state-like entity by directly choosing to form one, with no need for a market economy to even ever develop:

 

“In fact, a number of scenarios other than the one Nozick gives us can plausibly be imagined to flow out of his best anarchistic situation. The most obvious alternative is a social contract creation of the state. And given Nozick’s “strong formulation of individual rights,” which requires contract or consent as the basis for relationships of obligation, it would seem that a legitimate state with a monopoly of force would have to be the product of unanimous individual consent. If one takes the idea of contract seriously, as Nozick does, one must grant that people can put into the social contract any provisions to which they all agree; and there is nothing in Nozick’s concept of a person or in his hypothetical state of nature to guarantee they would choose the minimal state."[xxxv]

 

In other words, Nozick’s project isn’t really one that attempts to conceive of how a legitimate state could arise from the state of nature without violating anyone’s individual rights- it’s an attempt to conceive of how a legitimate state could arise from the state of nature through market processes without violating anyone’s individual rights. Nozick conceives as the state coming into existence as an accident of the contract between agencies and clients, but why can’t it intentionally come into existence as a contract between individuals? Nozick’s description of a mutual protective association seems to be the model for this sort of thing, and it’s genuinely perplexing as to why he didn’t consider the implications and potential of these associations. It seems like Nozick’s wary libertarian eye is only incapable of seeing the state as “a relationship among individuals whose interest the state is designed to serve.”[xxxvi] Fundamentally, “[t]he alterative tradition which envisions political association as a mode of cooperation… cannot fit into Nozick’s picture of governing as part of the economic division of labor in a market economy; and he does not consider it.”[xxxvii]

 

Nozick’s free market fixation is not just problematic because it leads him to ignore alternate, non-market solutions to his problem of creating a state; but because it, at many points, leads him to assign normative value on the market process.[xxxviii] The first place this implicitly appears is in his description of how mutual-protective associations turn into protective agencies- he speaks only in terms of “division of labor” and “[hiring] to perform protective functions.”[xxxix] Of course, the most “market-efficient solution” to the problem of one’s property being threatened by barbarian raids is the employment of a privately-owned military force that will protect only those who pay for it. But is that the most moral solution? Nozick thinks that everyone has the right to defend themselves or others against the invasion of rights, so there’s no moral prohibition that requires the protective agency to merely stand around as a nonclient gets pillaged.[xl] It’s simply the most economic decision for the company and its clients to save the cost of the bullet. And even if Nozick tries to bring in arguments for intervention on behalf of the nonclient based on the “negative externalities” of having half the neighborhood on fire, he’s still just making an economic argument for what should be absolutely and clearly morally obvious: that you should intervene on behalf of the lives and property others, especially if you can do so at little cost to yourself. Nozick develops the majority of his theory in the realm of the free market, but he fails to justify constraining his theory to this beyond the platitudes of “efficiency.” “Either free market solutions are superior alternatives or they are not; one cannot have a value free analysis and ideological advocacy at the same time.”[xli] Nozick must justify free markets as the best process by which a legitimate state can arise, not just put forward them as the default (and implicitly only) way in which one can arise.

 

With these two objections to Nozick in mind, we can see that his concept of a dominant protective agency as the minimal state- and not just any state, but the utopian state (or at least equivalent in framework) - is even more flawed.[xlii] At the very best, Nozick’s conception of the minimal state is merely one of a number of possible legitimate states of varying sizes and organizational principles. Nozick assumes both the development of a market economy and the inherent value of market solutions in his conception of the state; the first assumption unfounded, the second incredibly controversial and unsupported.

 

It seems like Anarchy’s project of justifying the existence of the minimal state as the best state by showing that it can arise naturally, without the violation of anyone’s rights, doesn’t succeed. The process that results in the formation of a dominant protective agency as a state doesn’t justify itself as the only process that can produce a just state, and it’s dubious if the dominant protective agency even qualifies as a state (let alone a just one). Without even rejecting Nozick’s fundamental premise that individual rights are the most important consideration for political theory, we are able to recognize a number of issues with his political theory. It doesn’t reflect well on his utopia and its derivation if he fails to defend it adequately even on his own ideological turf. We must look elsewhere if we seek convincing arguments for advancing beyond the state of nature.

 

[i] Nozick, R. (1974). Anarchy, State, and Utopia. (New York: Basic Books), 4.

[ii] Mack, Eric, "Robert Nozick's Political Philosophy", The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.).

[iii] Nozick, Anarchy, ix.

[iv] Locke, John. Two Treatises of Government, 2nd ed., ed Peter Laslett (New York: Cambridge University Press, 1967), sect. 4.

[v] Ibid., sect. 6.

[vi] Ibid., chap. 3.

[vii] Ibid., sect. 10.

[viii] Nozick, Anarchy, 11-12.

[ix] Nozick, Anarchy, 12.

[x] Ibid., 12.                     

[xi] Feser, Edward. (2004). On Nozick. (Toronto, Canada: Wadsworth), 57.

[xii] Nozick, 12-13.

[xiii] Feser, 57.

[xiv] Nozick, 16.

[xv] Johnson, Karen. (1976). Government by Insurance Company: The Antipolitical Philosophy of Robert Nozick. The Western Political Quarterly, 29(2), 179.

[xvi] Wolff, Robert Paul. “The Derivation of the Minimal State.” In Reading Nozick: Essays on Anarchy, State, and Utopia, edited by Jeffrey Paul, 77-104. (Totowa, New Jersey: Rowman and Littlefield, 1981). 81.

[xvii] Nozick, 22.

[xviii] Ibid., 22-23.

[xix] Ibid.

[xx] Nozick, 23

[xxi] Ibid., 24

[xxii] Ibid., 25.

[xxiii] Wolff, 81.

[xxiv] Feser, 58-59.

[xxv] Nozick, 110.

[xxvi] Feser, 59.

[xxvii] Nozick, 110.

[xxviii] Ibid., 13.

[xxix] Nozick, 88.

[xxx] Ibid., 88-89

[xxxi] Ibid., 108-109

[xxxii] Nozick, 109.

[xxxiii] Feser, 61.

[xxxiv] Johnson, 180.

[xxxv]Johnson, 179

[xxxvi] Johnson, 180.

[xxxvii] Ibid., 181.

[xxxviii] De Gregori, Thomas. (1979). Market Morality: Robert Nozick and the Question of Economic Justice. The American Journal of Economics and Sociology, 38(1). 17.

[xxxix] Nozick, 13.

[xl] Ibid., 10.

[xli] De Gregori, 17.

[xlii] Nozick, 333.