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 …

Image result for tort crime

Image credit: gellenberger

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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