Up to now, Nozick has been grappling with the following question: Why not permit all boundary crossings provided compensation is paid? Nozick, however, switches gears and addresses the opposite question in the seventh subsection of this chapter (pp. 71-73): Why not prohibit all boundary crossings to which the victim has not consented to in advance? It is here, in my view, where Nozick provides the most persuasive answer to both questions. In two words: transaction costs! To sum up: when the parties are able to freely negotiate ahead of time the price of a wrongful act or moral border crossing (i.e. a low transaction cost situation), we should allow boundary crossings so long as compensation is paid. By contrast, when ex ante negotiations would be too costly or impractical to take place (i.e. a high transaction cost situation), then moral border crossings should be flat out prohibited and punished as a crime.
Alas, there are several serious problems with the transaction cost approach to moral boundary crossings. To begin with, how do we measure these transaction costs? (As we mentioned in our previous blog post, for example, strategic bargaining and deadlock can occur even in situations with just two parties!) Secondly, even if we could measure transaction costs, where should the line between high and low transaction costs be drawn? Lastly, and most importantly, even if we could establish such a threshold, Nozick has yet to reveal what constitutes a wrongful act or a moral boundary crossing in the first place. In other words: Yes, individuals have rights, but what do these natural rights consist of?
It is my position that this last problem is unsolvable using Nozick’s reciprocal moral framework. If harms or wrongs are the result of activities engaged in both by the wrongdoer and the victim, then concepts such as “harm”, “wrongful act”, “moral boundary crossing”, etc. are incoherent and make no logical sense. Beware: I am not saying that we don’t have an intuitive sense or understanding of harms and wrongs in specific situations; instead, I am only saying that we won’t be able to come up with a coherent, consistent, or principled theory of moral blame for such acts. Furthermore, I take this problem very seriously because I actually agree with Nozick’s reciprocal framework. Consider, by way of example, the ethics of abortion: (1) Does abortion constitute a moral boundary crossing, and if so, (2) should abortions be prohibited and punished as a crime, or should they be treated as private torts — permitted so long as compensation is paid (but to whom?)? In my view, we can’t even begin to answer the second question because there is no coherent, consistent, or principled way of determining whether abortion is right or wrong. Why not? Because of the reciprocal nature of the harm of either allowing or restricting the right to an abortion. On the one hand, allowing women to terminate their pregnancies will harm (some) unborn children, but on the other hand, restricting abortions harm (most) women by restricting their freedom to make their own choices. So, which harm is the greater one? Is there any coherent, consistent, or principled way of answering this harm question?
But wait, there’s more! There is yet another complication with Nozick’s boundary-crossing view of morality. What about activities that don’t produce harms but instead merely create a risk of harm? Nozick will grapple with this delicate problem in the next subsection of Chapter 4 on pp. 73-78 (“Risk”), our favorite part of the chapter by far. We will review the risk subsection tomorrow morning.