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WHITHER ANARCHY?

HAS ROBERT NOZICK JUSTIFIED THE STATE?*

RANDY E.BARNETT

Harvard Law School

One can appreciate Anarchy, State and Utopia which specialized in defense of its customers
on many levels. Its emphasis on individual Nozick would call a ~rotectiveassociation.(l2)
freedom is a refreshing change of pace. It The protective association has no rights of
questions assumptions that have long been action other than the sum of the rights
sacrosanct. It puts forth a theory of entitlement delegated to it by its subscribers. (89) To this
which is nothing short of remarkable in this day point the anarchist has no problem. At least he
and age. And most importantly, it is being thinks he has no problem. He has yet to hear
taken seriously by the press and, hopefully, the what Professor Nozick believes is the content
establishment philosophers as well. of these individual rights.
But Professor Nozick has attempted more Nozick analogizes rights to a sort of
than this. He has attempted to refute the boundary which "circumscribes an area in
anarchist position. This is a rare endeavor. Few moral space around an individual." (57) What
have taken the anarchist position seriously happens if one person does something which
enough to refute it. Few understand it well risks crossing the boundary of another?
enough t o do it justice. Dr. Nozick displays a n Nozick answers that you may prohibit the
intimate knowledge of the anarchist position risky activity provided that "those who are
and yet he rejects it. His refutation is novel, disadvantaged by being forbidden to do
intricate and many-faceted. But does it actions that only might harm others must be
succeed? In this paper I shall try to outline a compensated for these disadvantages foisted
few reasons why I think it does not. upon them in order to provide security for the
Nozick begins by asserting that "Individuals others." (83) This he calls the "principle of
have rights ..." (ix).@The purpose of the Tirst compensation." It "requires that people be
part of his book (the ,only part which we shall compensated for having certain risky activities
treat here) is to see if it is possible to evolve a prohibited to them."(83)
state or "state-like entity" (118) without any It follows from this principle that an
violation of individual rights. He concludes individual may be prohibited from using a
that such a thing is possible and likely as well. I procedure of enforcing his rights which is risky
shall confine my examination to the possibility or unreliable, provided that the principle
that a state might exist which does not violate applies to this type of activity. Nozick gives
individual rights a b initio. two parallel justifications for applying the
''In a state of nature an individual may principle t o dispute settlement.
himself enforce his rights, defend himself, Since he maintains that a protective assoc-
exact compensation, and punish." (12) But an iation has no rights of action other than the
individual may also delegate this right to sum of the rights delegated t o it by its
friends, relatives, or hirelings. A company subscribers (89), Nozick first seeks to ground
his justification on some right held by every
* The original version of this paper was delivered at the individual. He turns hopefully to the notion of
Third Libertarian Scholars Conference, October 1975, "procedural rights." "Each person has a right
New York City.
P All parenthetical numbers are from Robert Nozick's t o have his guilt determined by the least
Anarchy, Sfafeand Ufopin, Basic Books, 1974. dangerous of the known procedures for
RANDY E.BARNETC
ascertaining guilt, that is, by the one having of self-defense is contained within the ooncept
the lowest probability of finding an innocent of right itself. It is simply a mews o f
person guilty." (96)_The association's right to exercising your right when someone&f&'ing to '
'

prohibit risky procedures, therefore, derives prevent you from doing so. The f@tp& h&ve~,
directly from the individual's procedural a right of action means you may agtw ,&at :,: I

rights. way even if another attempts t o prtr.sehtthis. ,


Secondly, Nozick insists that the prohibition Self-defense, then, is implicit in the notion of
of "unreliable" procedures is valid even if rights.
there were no procedural rights. He contends Where do rights come from? How ~e they
that epistemic considerations govern the use of grounded? Nozick doesn't say and 1 w'ill not
retaliatory force. That is, you must know that pretend t o offer a final answer to,this question.
an aggressor has violated someone's rights But it seems that since the concept of right
before you may retaliate. Use of force on an carries within it the freedom t o use property,
aggressor without knowing that he is guilty is rights are created along with properly pwner-
itself aggression. "If someone knows that ship. I would contend that this i s what
doing act A would violate Q's rights unless ownership means. Rights (to use property in a
conditon C obtained, he may not do A if he certain way), then, can be homesteaded,
has not ascertained that C obtains through exchanged, or bestowed to employ the Lock-
being in the best feasible position for ascert- ean trichotomy.
aining this."(l06) Has Nozick's minimal state violated indiv-
On this analysis, a protective association idual rights? You remember that the -reason
may prohibit others from using procedures the dominant protective association has a right
which fail to meet some standard of certainty to prohibit risky, unreliable enforcement
since failure to meet this standard means that methods is that its members, indeed all people
the enforcer lacks the requisite knowledge of have procedural rights. "Each person has the
guilt. right to have his guilt determined by the least
Once you swallow the principle of compen- dangerous of the known procedures for
sation and its applicability to dispute settle- ascertaining guilt, that is, by the one having
ment, the introduction of the minimal state- the lowest probability of finding an innocent
like entity is all downhill. Nozick envisions one man guilty." (96). "The principle is that a
association coming to dominate the market. person may resist, in self-defense, if others try
By his principles, this association would have to apply to him an unreliable or unf&
the right to prohibit all competitors who in its procedure of justice." (102).
opinion employed risky procedures (provided, But where would such a right come from?
of course, "compensation" was paid). Voila! Was it homesteaded, exchanged or received as
We have a state-like entity which arises a gift? And does this right of self-defense bear
without violating anyone's rights, right? any resemblance to the right of self-defense I
Everything hinges on whether Nozick has discussed earlier? Nozick deals with none of
successfully outlined an "invisible hand" these questions. He simply assumes the
explanation of the state where no rights are existence of procedural rights and then proc-
violated in the process. Consequently, Noz- eeds to speculate on what form they should
ick's conception of rights and their basis take. This does not mean that Nozick is
becomes crucial here. Yet early in the book he wrong. It means only that we have no reason
apologizes for not presenting a theory of the .to believe he's right.
moral basis of rights. (xiv). Still it is possible At the same time Nozick chides the
to discern a notion of rights being used here. natural-rights tradition which, he says, "offers
A right is a freedom to do something, that little guidance on precisely what one's proc-
is, to use property which includes one's body edural rights are in a state of nature, on how
in a certain way unimpinged by external principles specifying how one is to act have
constraints (force or threat of force). The right knowledge built into their various clauses, and
WHITHER ANARCHY? HAS ROBERT NOZICK JUSTIFIED THE STATE? 17

so on. Yet," he continues, "persons within innocent man guilty and someone enforces
this tradition do not hold that one may not that finding has anyone's rights been violated.
defend oneself against being handled by You have the right to defend yourself against
unreliable or unfair procedures." (101). all procedures if you are innocent, against no
I maintain that this is precisely what the procedures if you are guilty. The reliablility of
natural rights tradition does hold or, at least, the procedures is irrelevant. Unless an innoc-
should hold: That there are no natural ent person agrees to be bound by the outcome
procedural rights. Let me briefly defend this of a judicial proceedings, he retains his right
claim. of selfdefense even after a "reliable" proc-
In the state of nature one has the right to edure has erred against him.
defend oneself against the wrongful use of The pulpose of any procedure, then, is to
force against person or property. But if you induce adherence to the decisions of the
commit an aggressive act, the use of force by arbitrators. The parties and the community
the victim to regain what was taken from him must be convinced that there is a good chance
is not wrongful. If you have stolen a T.V., the of a just decision before they will be willing to
rightful owner may come and take it back. bind themselves t o any possible outcome. In a
You may rightfully resist only if you are culture which held that rights are based on the
innocent or have some legitimate defense. facts of the case, disputants would demand
What are we then to make of procedural procedures suited to discover those facts. The
rights? better it worked, the more acceptable it would
Though only the innocent party may be. Thus procedures would and should be
rightfully use self-defense, it is often unclear to judged on the basis of utility.
neutral observers and the parties involved just Procedures, then, for discovering the fact
who is innocent. As a result there exists the situation are not t o be confused with rights
practical problem of determining the facts of themselves. You only have a right to a
the case and then the respective rights of the procedure, like any other service, if someone,
disputants. But I must stress here that this is a e.g. your protective association has contracted
practical question of epistemology not a moral to provide you with it.
question. The rights of the parties are What then of Nozick's second line of attack
governed by the objective fact situation. The - the epistemic justification. "On this view,
problem is to discern what the objective facts what a person may do is not limited by the
are, or, in other words, to make our subjective rights of others. An unreliable punisher
understanding of the facts conform to the violates no right of the guilty person; but he
objective facts themselves. still may not punish him." (107). It is not
The crucial issue is that since rights are enough that the guilty party is guilty. The
ontologically grounded, that is grounded in the p"nisher must know he is guilty. One is
objective situation, any subjective mistake we tempted to label this the 'what you don't know
make and enforce is a violation of the can hurt you' approach.
individual's rights whether o r not a reliable This approach neatly avoids an assertion of
procedure was employed. The actual rights of procedural rights and, in addition, is a
the parties, then, are unaffected by the type of conscious effort to answer the objection that a
procedure, whether reliable or unreliable. They guilty person may not defend himself against
are only affected by the outcome of the unreliable procedures and may not punish
procedure in that enforcement of an incorrect someone else for using them upon him. (103).
judgment violates the actual rights of the Our attention is now shifted from the rights of
parties however reliable the procedure might guilty persons to the "morality" of protective
be. associations; from the question of whether a
The point is that you have a right of guilty person can defend himself against his
self-defense if you are innocent but not if you victim we now move to consider whether a
are guilty. Only if a procedure finds an third party can protect the guilty person if that
-.

18 RANDY E. BARNETT

third party isn't sure of the client's guilt. would aid in such deterrence may be inflict-
"But,", as Nozick asks, "does this difference ed;" but the true question is the (moral)
in knowledge made the requisite difference?" legitimacy of "punishing after the fact the
(108) unreliable punisher of someone who turned
He believes the epistemic problem at least out to be guilty." (106).
allows the protective association to delay the But while this epistemic consideration may
imposition of penalties on its client until it can be relevant as a practical problem or even a
determine his guilt. This is provided they pay moral problem, I question its relevance to
compensation for the delay if it turns out that issues of rights. (And I'm sure Dr. Nozick
his client is guilty. While I am unsure about shares my contention that rights and morals
the rightfulness of this delay, it does not are not co-extensive.) If the nature and moral
appear to present a major difficulty. Nozick, foundation of rights are what I alluded to
however, goes on to assert that a person using earlier - a freedom to use property, created
an unreliable procedure "is in no position to along with property ownership - then epist-
know that the other deserves punishment; emic considerations cannot create or alter
hence he has no right to punish him." (106) It rights. The right of self-defense we contend is a
is one thing t o assert that if a protective direct result of an infringement on a property
association delays sanctions against its guilty right. Its purpose is to protect and restore
client it must compensate the victim for the what is rightfully owned. Since it is ontologic-
delay. To claim that the association may ally grounded this right exists against an
rightfully prevent any punishment by an aggressor independently of whether we know
enforcer it deems unreliable is quite another who the aggressor is. Consequently we are
matter. entitled to take compensation from the actual
I leave aside the question of whether anyone aggressor whether or not we are sure of his
has the right to "punish" if by punish we guilt. That is, the actual guilt or innocence of
mean something other than "make restitution the suspect as opposed to our subjective
to victims." If punishment were limited to knowledge of his guilt determines if taking
restitution, this might minimize Nozick's restitution from him is justified.
visceral reaction against the actions of third Nozick's epistemic considerations are rel-
parties. For clearly he fears the prospect of evant to whether one who indiscriminately
persons stealing from or hurting someone and takes restitution from people he's not sure are
then trying to dig up some past indiscretion by aggressors (but happens by chance to be right)
the victim in order to "justify" their agg- is a good man. This is a question of morality,
ression. not rights. Epistemic considerations are also
A restitutional standard would justify the relevant when we realize that we are likely to
actions of thieves who stole from someone aggress against innocent people and be respon-
who turned out himself to be a criminal only if sible to them if we aren't careful about who we
the thieves had given their booty to the "punish." This is a practical question, not
original victim. If the thieves kept the loot, the one of rights.
fact that the victim was himself a criminal This analysis, like the analysis of procedural
would in no way justify their acts. This is rights, highlights the crucial need for a theory
hardly a carte blanche for indiscriminate of rights and the difficulties we face in
"punishing." political philosophy without such a theory.
But Nozick's epistemic justification is more The fact is that in laying down my argument, I
than a gut reaction against loopholes for too fail to provide a detailed theory of the
criminals. It sets forth a principle of morality. moral basis and nature of rights. The purpose
Unfortunately he doesn't justify this principle of this treatment, however, is merely to show
beyond its deterrence value on enforcers using how essential such a theory is and how starkly
unreliable procedures. (105). And even on this divergent conclusions flow from even a slightly
point he concedes that "not anything that different conception of rights.
-

WHITHER ANARCHY? HAS ROBERT NOZICK JUSTIFIED THE STATE? 19

How then are we t o properly view the ation of the ultra-minimal state. But what of
relationship between procedural safeguards, this principle of compensation itself? I think
epistemic considerations for enforcers and the Professor Nozick will agree that if it fails there
right of selfdefense? Perhaps Dr.Nozick's can be no doubt that that the ultra-minimal
intriguing distinction between moral const- state is unjustified.
raints and moral goals would be of service "The principle of compensation requires
here. "The side constraints view forbids you to that people be compensated for having certain
violate these moral constraints in the pursuit risky activities prohibited to them." (83). In
of your goals; whereas the view whose other words it is okay for you to forcibly
objective is to minimize the violation of these forbid another from engaging in a risky
rights allows you to violate the rights (the activity provided you compensate him for it.
constraints) in order to lessen their total Nozick anticipates our response by pointing
violation in the society." (29). Let me briefly out that "it might be objected that either you
clarify this. have the right to forbid these people's risky
We may take as our moral goal or end a activities or you don't. If you do, you needn't
certain state of affairs. Anything which compensate the people for doing to them what
enhances this state of affairs we may do you have a right to do; and if you don't, then
provided we don't violate certain moral side rather than formulating a policy of compen-
constraints on our actions. Nozick correctly sating people for your unrightful forbidding,
argues that the protection of rights is not a you ought simply to stop it." (83).
moral goal since this would allow us to violate Nozick claims this dilemma is "too short"
the rights of a few in order t o generally (83); that there is the middle ground of
enhance the rights of the many. For example, "prohibit so long as you compensate." This
one may not torture the innocent person to gain middle ground, he says, is based on a
information which will prevent the explosion distinction between "productive" exchange
of a bomb even though this would generally which you have a right t o engage in and
enhance the goal of protecting peoples rights "non-productive" exchange which you do not.
(in this case the rights of the potential victims). Since you have no right to non-productive
Rights of individuals are moral side-con- exchange in the first place, the prohibition of
straints. We may strive t o achieve our goals in such an exchange isn't a violation of your
any way which does not violate an individual's rights.
rights. In a productive exchange each party is better
1 would adapt this view to our discussion off than if the other party's activity wasn't
here. For practical and moral reasons, proc- done or the other party didn't exist at all. (84).
edural fairness and knowledge by enforcers of "Whereas if I pay you for not harming me, I
the guilt of their suspects are moral goals to be gain nothing from you that I wouldn't possess
striven for. Our efforts to achieve them, if either you didn't exist at all or existed
however, cannot violate the rights of any without having anything to do with me." (84).
individual. To punish a victim for taking The principle of compensation merely says
restitution from his actual aggressor just that if the prohibition of a non-productive
because he wasn't sure it really was his exchange causes you to forego some benefit
aggressor is a violation of that victim's right of (other than what you might have charged in
self-defense and, therefore, a violation of our the exchange) you are entitled to compen-
moral sideconstraint. The right of self-defense, sation.
then, dictates that procedural fairness and My concern in this discussion is not so much
epistemic certainty are goals, not constraints. whether such a distinction exists, but whether
In this discussion, I've tried to show how such a distinction is relevant to political
Professor Nozick has failed to apply his philosophy or, more particularly, t o rights.
"principle of compensation" t o dispute- settle- What seems to have occurred here is an
ment situations, the lynch-pin of his justific- unfortunate mixing of economic explanation
CN

RANDY E. BARNETT

with moral imperatives. The concept of an ex means he is entitled to what was taken from
ante increase in individual psychic utility as a him. We don't pretend that money i s the
result of exchanges was developed as an equivilant or even "fair price" for the loss of
axiomatic explanation of why voluntary ex- life or limb. We say only that some attempt
change occurs. It was never intended to serve must be made to restore t o that victim what
as a moral or political justification of that was taken from him as far as humanly
exchange. Its use as such disregards the whole possible.
notion of title. The crucial distinction here is while volunt-
If something belongs to me what I own is arily paying a purchase price makes an
the title to that object. I may do with it what I exchange permissible, compensation does not
wish and that includes exchanging my title for make an aggression permissible or justified. It
other titles. The reason I exchange is to is not permissible to deprive you of free speech
maximise my psychic utility but this says provided I "compensate" you. You would
nothing about my right to make the exchange. have the right to defend yourself. If you were
In Nozick's example of a blackmailer it is true unsuccessful, unable or unwilling to defend
that the blackmailed party would be better off yourself, you would then, in addition, have a
if the blackmailer didn't exist (as opposed to right to compensation. Put in more analytic
an auto purchaser who would not be better off terms, voluntariness is a necessary condition
if G.M. did not exist). But the reason why this for a morally permissible exchange of values.
is true is because the blackmailer is a free man Compensation is not a sufficient condition for
who has the right to tell what he knows as we justifying or permitting a violation of rights.
all do. Wouldn't a businessman be better off Contrary to Nozick's principle of compens-
without his competition? If a rival company ation, all violations of rights should be
offered to leave the market for a price would prohibited. That's what right means. The only
the remaining company have the right to way rights are abdicated is by consent of the
prohibit any further competition by the rival right holder. Nozick rejects this on the
simply because the rival was offering a grounds that "some factor may prevent
non-productive exchange? I think not. obtaining this prior consent or make it
Nozick admits that. even under his principle impossible to do so. (Some factor other than
of compensation, the blackmailer may charge the victim's refusing to agree)". (71). T o this
for what he foregoes which Nozick incorrectly one must reply, "so what?". Practical prob-
assumes to be little or nothing. What the lems of obtaining consent sometimes can't be
blackmailer foregoes is his right to use his avoided it's true, but this doesn't mean that
body in any way which he sees fit, i.e. speech. consent is not required. Nor will an argument
This introduces the fallacy of a "just price." from utility suffice since utility we saw can
There is no just price for this right or, more only be applied to moral goals and not t o
precisely, his title to use some property - the rights which are moral side-constraints (to
body - in a certain way. It has no intrinsic, employ the Nozickian distinction). Nozick is
objectively measurable value. Its only fair too quick to reject the principle that rights
price is the freely bargained one. Anything less violations are always prohibited.
would mean a right of title had been taken by
force from its owner. By definition this is a
violation of the blackmailer's rights. WHITHER ANARCHY?
This just price fallacy permeates the whole Political reality dictates that the practical
of Nozick's discussion of "compensation". It burden of proof falls on those who wish to
confuses the morally permissable exchange make a radical change in society. Anarchists
with the penalty for violating a right which is must face this burden. But it is those who seek
compensation. If someone violates another's to impose a state, those who wish to justify
rights, the victim is entitled to compensation to their use of force against the individual who
make up for the transgression. This simply face the moral burden of proof.
WHITHER ANARCHY? HAS ROBERT NOZICK JUSTIFIED THE STATE? 21

As I tried to emphasize at the beginning of and its application to dispute settlement. I


this paper, there are many reasons why we believe that the application of the principle to
should he grateful t o Robert Nozick for dispute-settlement via procedural rights and
writing this book. Not the least is that he has epistemic considerations fails. The principle
properly perceived the moral burden of proof. itself, I contend is grounded on a misguided
More than this, he has tried to meet that economic-type explanation rather than a moral
burden. I have tried to determine whether he argument. Lastly I feel that Nozick's own
has succeeded. Has Robert Nozick justified the concepts of moral constraints and moral goals
state? I conclude that he has not, though not helps u~ t o see where he later falls short.
for want of an intricate and ingenious effort. Nozick's book neither claims to he nor
It is essential to his endeavor that he show succeeds in being the last word on the
that the rise of the state violates no individual anarchist-minimal state controversy. For that
rights. He has attempted to show this by matter, neither does this paper. I conclude
implicitly redefining rights. The crucial step in simply that Nozick fails to meet his burden of
this process is the principle of compensation proof. The state remains unjustified.