Digression: Nozick’s relevance to legal theory

Before we press on with our review of Nozick’s masterpiece Anarchy, State, and Utopia (ASU), we want to say a few words on why Nozick is worth reading and why we are so excited about Nozick’s ideas, especially Chapter 4 of ASU, despite the many criticisms of Nozick’s work we have made thus far. Recall from our previous post Nozick’s distinction between “Type I Moral Systems” (consisting of moral boundaries that can be crossed so long as compensation is paid) and “Type 2 Moral Systems” (consisting of moral boundaries protected by strict prohibitions against any non-consensual boundary crossings). Doesn’t this distinction look a lot like the existing legal distinction between civil liability and criminal liability?! That, in a nutshell, is why we are so fascinated by ASU, for Nozick is actually trying to answer a hard theoretical and practical question in law: Why are some harmful acts crimes, while others are mere torts or civil wrongs? (Indeed, in some situations — like assault, fraud, trespass, etc. — the same act might constitute both a crime and a tort!) Traditionally, torts are considered private wrongs, whereas crimes are classified as public wrongs. (See image below.) But this traditional explanation begs the question of why private wrongs (unlike public ones) are okay so long as compensation is paid. (In any case, we have never found the public-private distinction to be very persuasive.) In short, Chapter 4 of ASU is essential reading for legal scholars …

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Image credit: gellenberger

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How to enforce moral borders: compensation or prohibition?

The third subsection of Chapter 4 of Anarchy, State, and Utopia (pp. 58-59) narrows down and reformulates the problem of enforcing moral boundaries in terms of two hard questions (p. 59): (i) why not allow or permit boundary crossings so long as the boundary crosser is required to pay full compensation to his victim? Or in the alternative, (ii) why not strictly prohibit all non-consensual boundary crossings, regardless of the boundary crosser’s willingness or ability to pay full compensation to his victim? (For future reference, let’s call all compensation-based schemes or permissive methods of enforcing moral boundaries “Type 1 Systems” and all paternalistic, prohibitive, or punishment systems “Type 2 System”.) As Nozick notes, if we were to favor a type 1 system of compensation, two related problems will arise. One is the problem of measurement: how should harms or boundary crossings be measured and priced? The other is the problem of evasion: some fraction of boundary crossers will be able to avoid detection, apprehension, and punishment. Shouldn’t the price of a boundary crossing somehow reflect this risk of evasion, in order to deter future boundary crossings from occurring in the first place? Nozick will delve into these subsidiary System 1 questions in the next two subsections of Chapter 4 (pp. 59-65), and so will we in our next blog post …

Related image

Credit: Lynda Barry

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Two views of moral border crossings

The second subsection of Chapter 4 is only two pages long (pp. 57-58), but it deserves our careful attention for several reasons: (i) One reason is Nozick’s geometric visualization of morality. As Nozick puts it (p. 57): “an area in moral space” or moral boundary surrounds every individual. (ii) Another reason is that Nozick raises (yet again!) a fundamental question, an inquiry so important that it will take up the rest of Chapter 4. Specifically, Nozick poses a subtle query about the nature of this geometric moral boundary. Should the moral line surrounding each person be treated as an impenetrable wall — one that others are forbidden to transgress — or merely as a suggestion or default position — a moral line that others are permitted to step over so long as they compensate the person whose moral boundary has been crossed? (Before proceeding, it’s worth noting that this fundamental question must be answered regardless of where this line is drawn, no matter whether you are a pragmatic Humean consequentialist or are committed to universal Kantian duties. Either way, we must also decide what to do when moral “boundary crossings”, to borrow Nozick’s apt metaphor, occur.)

(iii) Yet another reason to pay close attention to pp. 57-58 of Chapter 4 is Nozick’s reciprocal stance towards moral boundary crossings. To borrow Nozick’s own terminology, assume two autonomous individuals, X and Y, and further assume that compensation is required for any border crossing (regardless where we draw the line). Does X have a reciprocal duty to take whatever steps or precautions are prudent in order to reduce the likelihood of Y committing a boundary crossing or to minimize the impact of Y‘s border-crossing once such a violation occurs? For his part, Nozick appears to adopt (at least tentatively) a “reciprocal” view of moral border crossings (p. 58): “We shall tentatively adopt [a reciprocal] view of compensation, one which presumes reasonable precautions and adjusting activities by X.” So, if Y has a moral duty to avoid crossing X‘s moral boundary, then to the extent harms are the product of the actions of both parties (X and Y), X also has a reciprocal moral duty to arrange his affairs so as to reduce the probability of border crossings and to limit his losses when such border crossings do occur.

Although we agree with Nozick that in most cases moral duties are indeed reciprocal — at least to the extent moral (and physical) harms are the product of both parties’ decisions and actions (one of the main lessons of Ronald Coase’s famous paper, “The Problem of Social Cost”) — this reciprocal moral logic is not universally accepted by everyone, least of all by many moral philosophers! Also, we find it very strange that a good Kantian like Nozick (“Individuals have rights …”) would be willing to even consider the possibility of compensation for moral border crossings. After all, doesn’t Nozick’s side-constraint view of morality imply that our moral boundaries should be treated like an impenetrable wall instead of a mere suggestion or default position? To his credit, Nozick will not leave these questions open; he will carefully respond to these potential objections later in the chapter …

Image result for moral line
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The problem of independents (in Anarchy, State, and Utopia)

Nozick (pictured below) presents an important theoretical problem in the first subsection of Chapter 4: the problem of independents, or how should a private protection racket deal with non-members? (Nozick raises an additional theoretical problem in a footnote (p. 55): What happens if a non-member’s land is completely surrounded by land owned by members of a protection racket? How can the non-member leave his land to make a living without trespass, i.e. without violating the natural rights of his neighbors? For what it’s worth, Nozick promises his readers that he will address the surrounding person problem in Ch. 7.) Recall from previous chapters that, according to Nozick, people in a state of nature will establish “mutual protection associations” to protect their natural rights and that these protection rackets will compete with each other for clients until there are just few dominant agencies left, via an invisible hand process. But this hypothetical scenario poses an interesting problem, what if a few persons — or even just one person! — refuse to purchase protection services from any of the protection agencies? How should any of the remaining protection rackets deal with such non-members or “independents”? This scenario poses a problem because an independent retains his “natural” right to punish anyone who violates his rights, but at the same, such a rights-violator might belong to a private protection association. If so, doesn’t the protection agency have a duty to protect its clients? But what about the independent’s ex ante right to enforce his rights? Who wins?

Moreover, in the course of identifying this theoretical problem (the problem of independents), Nozick draws a fundamental distinction between primary or first-order natural rights (e.g. the right to life and property) and secondary natural rights or the right to enforce other rights (e.g. the right to punish or retaliate against someone who has violated one’s substantive rights). We will consider Nozick’s solution to “the problem of independents” in future blog posts …

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Overview of Chapter 4 of ASU

Before we begin our review of Chapter 4 of Anarchy, State, and Utopia (ASU), let’s take a closer look at the overall structure and organization of this chapter. In summary, Chapter 4 is titled “Prohibition, Compensation, and Risk” and is divided into ten separate (and for the most part, short) subsections as follows:

  • Independents and the Dominant Protective Agency (pp. 54-56)
  • Prohibition and Compensation (pp. 57-58)
  • Why Ever Prohibit? (pp. 58-59)
  • Retributive and Deterrent Theories of Punishment (pp. 59-63)
  • Dividing the Benefits of Exchange (pp. 63-65)
  • Fear and Prohibition (pp. 65-71)
  • Why Not Always Prohibit? (pp. 71-73)
  • Risk (pp. 73-78)
  • The Principle of Compensation (pp. 78-84)
  • Productive Exchange (pp. 84-87)

For our part, we will continue to subject all of Nozick’s arguments, claims, and propositions to careful examination. Rest assured, however, in the spirit of the quotation pictured below, that our aim is not prove Nozick wrong. (In any case, the notion of “proof” in the realm of moral and political philosophy is dubious at best.) Instead, our aim is to figure out which of Nozick’s points are the most and least persuasive …

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Book pins

Book Pins  Book Pins
Book Pins  Book Pins
Book Pins  Book Pins
These beautiful book pins, and many more, are made by Ms. Jane Mount and are available for purchase here (hat tip: kottke).
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Periodic table quilts

Via The Amazing Cliff Pickover, we discovered a website that sells quilts of the periodic table, such as the one pictured below. These beautiful quilts are made by robots, measure 8 feet wide by 4 feet high (2.4m x 1.2m), and are available for purchase here.

Hat tip: @pickover

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