Whither Anarchy

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    WHITHER ANARCHY?HAS ROBERT NOZICK JUSTIFIED TH E STATE?*

    RA ND Y E. BARNETT

    Harvard Law School

    One can appreciate Anarchy, State a nd Utopiaon many levels. Its emphasis on individualfreedom is a refreshing change of pace. Itquestions assumptions that have long beensacrosanct. It puts forth a theory of entitlementwhich is nothing short o f remarkab le in this da yand age. And most importantly, it is beingtaken seriously by the press and , hopefully, theestablishment philosophers as well.

    But Professor Nozick has attempted morethan this. He has attempted to refute theanarchist position. This is a rare endea vor. Fewhave taken the anarchist position seriouslyenough to refute it. Few understand it wellenough to d o it justice. Dr. Nozick displays a nintimate knowledge of the anarchist positionand yet he rejects it. His refutation is novel,

    intricate and many-faceted. But does itsucceed? In this paper I shall try to outline afew reasons why I think it does not.

    Nozick begins by asserting tha t "Individualshave rights..." (ix).@ Th e purpo se of the Tirstpart of his book (the ,only par t which we shalltreat here) is to see if it is possible to evolve asta te or "state-like entity" (118) without anyviolation of individual rights. He concludesthat such a thing is possible a nd likely as well. Ishall confine my exam ination t o the possibility

    that a state might exist which does not violateindividual rights ab initio.

    ' 'In a state of nature an individual mayhimself enforce his rights, defend himself,exact com pensa tion, an d punish." (12) But anindividual may also delegate this right tofriends , relatives, or hirelings. A com pany

    *

    The original version of this paper was delivered at theThird Libertarian Scholars Conference, October 1975,New York City.

    P All parenthetical numb ers are from Robert Noz ick'sAnarchy, Sfa feand Ufopin,Basic Books, 1974.

    which specialized in defense of its customersNozick would call a ~r ot ec ti ve ssociation.(l2)The protective association has no rights ofaction other than the sum of the rightsdelegated to it by its subscribers. (89) To thispoint the anarchist has no problem. At least hethinks he has no problem. He has yet to hearwhat Professor Nozick believes is the contentof these individual rights.

    Nozick analogizes rights to a sort ofboun dary which "circumscribes a n area inmoral space aro und an individual." (57) Whathappens if one person does something whichrisks crossing the boundary of another?Nozick answers that you may prohibit therisky activity provided tha t "those wh o aredisadvantaged by being forbidden to do

    actions that only might harm others must becompensated for these disadvantages foistedupon them in order to provide security for theothers." (83) This he calls th e "principle o fcompensation." It "requires tha t people becompensated for having certain risky activitiesprohibited to them."(83)

    It follows from this principle that anindividual may be prohibited from using aproce dure of e nforcing his rights which is riskyor unreliable, provided that the principle

    applies to this type of activity. Nozick givestwo parallel justifications fo r applying theprinciple t o dispute settlement.

    Since he maintains that a protective assoc-iation has no rights of action other than thesum of the rights delegated to it by itssubscribers (89), Nozick first seeks to groundhis justification on some right held by everyindividual. H e turns hopefully to the notion of"procedural rights." "Each person has a rightt o have his guilt determined by the leastdangerous of the known procedures for

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    RANDY E. BARNETC

    ascertaining guilt, that is, by the one havingthe lowest probability of finding an innocentperson guilty." (96)_The assoc iation's righ t toprohibit risky procedures, therefore, derivesdirectly from the individual's proceduralrights.

    Secondly, Nozick insists that the prohibitionof "unreliable" proce dures is valid even ifthere were no procedural rights. He contendstha t epistemic considerations govern the use ofretaliatory force. That is, you mustknow thatan aggressor has violated someone's rightsbefore you may retaliate. Use of force on anaggressor without knowing that he is guilty isitself aggression. "If som eone knows tha tdoing act A wou ld violate Q's rights unlessconditon C obtained, he may not do A if hehas not ascertained that C obtains throughbeing in the best feasible position for ascert-aining this."(l06)

    On this analysis, a protective associationmay prohibit others from using procedureswhich fail to meet some standard of certaintysince failure to meet this standard means thatthe enforcer lacks the requisite knowledge ofguilt.

    Once you swallow the principle of compen-

    sation and its applicability to dispute settle-ment, the introduction of the minimal state-like entity is all downhill. Nozick envisions oneassociation coming to dominate the market.By his principles, this association would havethe right to prohibit all competitors who in itsopinion employed risky procedures (provided,of course, "compensation" was paid). Voila!We have a state-like entity which ariseswithout violating anyone's rights, right?

    Everything hinges on whether Nozick has

    successfully outlined a n "invisible hand"explanation of the state where no rights areviolated in the process. Consequently, Noz-ick's conception of rights and their basisbecomes crucial here. Yet early in the book heapologizes for not presenting a theory of themoral basis of rights. (xiv). Still it is possibleto discern a notion of rights being used here.

    A right is a freedom to do something, thatis, to use property which includes one's bodyin a certain way unimpinged by external

    constraints (force or threat o f force). Th e right

    of self-defense is contained within the oonceptof right itself. It is simply a mews o f

    'exerc ising you r r igh t w hen someone&f&'ing to 'prevent you from doing so. Thef@tp& h&ve ~,

    , I

    a right of action means you may agtw &at :, :,way even if another attem pts t o prtr.sehtthis.

    Self-defense, then, is implicit in the notion ofrights.

    Where do rights come from? How~e theygrounded? Nozick doesn't say and 1 w'ill notpretend t o offer a final answer to,th is question.But it seems that since the concept of rightcarries within it the freedom to use property,rights are created along with properly pwner-ship. I would contend that this i s whatownership means. Rights (to use propertyin acertain way), then, can be homesteaded,exchanged, or bestowed to employ the Lock-ean trichotomy.

    Has Nozick's minimal state violated indiv-idual rights? You remember tha t th e -reasonthe dominant protective association has a rightto prohibit risky, unreliable enforcementmethods is that its members, indeed all peoplehave proce dural rights. "Each person has theright to have his guilt determined by the leastdangerous of the known procedures for

    ascertaining guilt, that is, by the one havingthe lowest probability of finding an innocentman guilty." (96). "The principle is th at aperson may resist, in self-defense, if others tryto apply to him an unreliable or unf&procedure of justice." (102).

    But where would such a right come from?Was it homesteaded, exchanged or received a sa gift? And does this right of self-defense bearany resemblance to the right of self-defenseIdiscussed earlier? Nozick deals with none of

    these questions. He simply assumes theexistence of procedural rights and then proc-eeds to speculate on what form they shouldtake. This does not mean that Nozick iswrong. It means only that we have no reason

    .to believe he's right.At the same time Nozick chides the

    natura l-rights tradition w hich, he says, "offerslittle guidance on precisely what one's proc-edural rights are in a state of nature, on howprinciples specifying how one is to act have

    knowledge built into their various clauses,and

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    17HITHER ANARCHY? HAS ROBERT NOZICK JU STIFIED THE STATE?

    so on. Yet," he continu es, "persons withinthis tradition do not hold that one may notdefend oneself against being handled byunreliable or un fair procedures." (101).

    I maintain that this is precisely what thenatural rights tradition does hold or, at least,should hold: That there are no naturalprocedural rights. Let me briefly defend thisclaim.

    In the state of nature one has the right todefend oneself against the wrongful use offorce against person or property. But if youcommit an aggressive act, the use of force bythe victim to regain what was taken fro m himis not wrongful. If you have stolen a T.V., therightful owner may come and take it back.You may rightfully resist only if you areinnocent or have some legitimate defense.What are we then to make of proceduralrights?

    Though only the innocent party mayrightfully use self-defense, it is often unclear toneutral observers and the parties involved justwho is innocent. As a result there exists thepractical problem of determining the facts ofthe case and then the respective rights of thedisputants. But I must stress here that this is a

    practical question of epistemology not a moralquestion. The rights of the parties aregoverned by the objective fact situation. Theproblem is to discern what the objective factsare, or, in other words, to m ake o ur subjectiveunderstanding of the facts conform to theobjective fa cts themselves.

    The crucial issue is that since rights areontologically grounded, that is grounded in theobjective situation, any subjective mistake wemake and enforce is a violation of the

    individual's rights whether or not a reliableprocedure was employed. The actu