Nozick on risk and natural rights

Nozick identifies a “serious problem” (his words, not ours) for the natural rights tradition in the eighth subsection of Chapter 4 (pp. 73-78): the problem of risk. (Hey, what about “uncertainty” as opposed to risk?) From a moral perspective, how should we classify activities that generate only a small risk of moral boundary crossings? Every human activity, no matter how benign its motivation or useful its consequences, carries some risk of injury to self and to others, and yet, as Nozick correctly states (p. 75): “It is difficult to imagine a principled way in which the natural rights tradition can draw the line to fix which probabilities impose unacceptably great risks upon others.” (By the way, doesn’t this criticism also apply to Nozick’s point about fear earlier in the chapter?) For his part, Nozick presents on pp. 75-76 three possible ways of dealing with such small-risk activities in a (Lockean) state of nature:

  1. Rule A (prohibition): The activity could be prohibited altogether, regardless of the degree of risk imposed by the activity.
  2. Rule B (global compensation rule): The activity could be allowed but only if compensation is paid to anyone who could have been injured by the activity, or in Nozick’s words (p. 76): “the action is permitted provided compensation is paid to all those persons who undergo a risk of a boundary crossing, whether or not it turns out that their boundary actually is crossed.”
  3. Rule C (limited compensation rule): The activity could be allowed but only if compensation is paid when the risk materializes and an injury occurs, or to quote Nozick again (p. 75): “the action is permitted provided compensation is paid to those persons whose boundaries are actually crossed.”

So, which of these three possible meta-rules should we prefer in the state of nature? Do we really need Nozick to tell us that, compared to other two rules, Rule C is just right, just like the third bowl of porridge in the fable of Goldilocks and the Three Bears? After all, Rule A is too harsh, while Rule B is too broad and cumbersome to operationalize. But the limited compensation rule poses a whole new problem: the poor man problem. That is, what if the person engaged in the risky activity is so poor that he is unable to pay compensation to his victims? (There are two additional problems with Rule C as well: (1) how much compensation must be paid when a moral boundary is crossed, and (2) which injuries are compensable? For example, does Rule C apply to injuries inflicted on another when one is acting in self-defense?) Nozick will address “the poor man problem” in the next to last subsection of Chapter 4 (pp. 78-84), which is aptly titled “The Principle of Compensation,” the longest subsection of the chapter and of the book thus far. We will return to the problem of compensation tomorrow morning …

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Credit: Julia Belluz, via Vox

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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5 Responses to Nozick on risk and natural rights

  1. Pingback: Nozick on reciprocal risks | prior probability

  2. Pingback: Nozick and the problem of risky independents | prior probability

  3. Craig says:

    I am not a Libertarian, do not subscribe to its tenets (although a given Libertarian and I may agree on any number of points and disagree on others) and I am really not that interested in the theory or history of libertarianism. From your posts, it appears that Nozick’s tome may be at least something that I can read to sharpen my own thoughts, as a wheel hones an axe, so for that reason alone I may put this work on my reading list. Looks like it would be a more-to-the-point read than Fountainhead. The problem I would like to see resolved by any social system is the tragedy of the commons, which libertarianism only aggravates.

    The main problem I have with libertarianism is that its devoted adherants are pedantically concerned with being true and right and failthful to principle — my priority is loving and caring. People concerned with loving and caring are going to get things wrong sometimes — loving and caring is a messy human emotional business. Rules and principles are safe and clean and offer the promise of order among chaos. Loving and caring (and poverty) gets into messy emotional tangles and conflcts that the justice system often gets to resolve.

    I am fully aware that as a privileged American I eat well while others starve. I am (pretty) safe while others are in war zones. I am already older than the average life expectancy of people of the continent where humanity sprang forth. I have to be who I am, a pragmatist-socialist. My circle cannot possibly extend to all humanity. But neither is my circle a circle of one, as orthodox libertarians hold. I do as many Americans do, which is extend myself but not quite the best I can.

    Enrique, thank you for being you and sharing your intellectual talents and interests. It will be my privilege to meet you someday.

  4. Pingback: My natural rights critique of the economic shutdown | prior probability

  5. Reblogged this on prior probability and commented:

    I am reblogging part 23 of my review of Nozick’s “Anarchy, State, and Utopia”, which covers the eighth subsection of Chapter 4 of Nozick’s magnum opus (pp. 73-78). Here, Nozick addresses the problem of risk — specifically, how should we classify activities that generate only a small risk of moral boundary crossings? (Again, the choice will be between prohibition and some form of compensation rule; two more subsections to go before we finish Chapter 4 of ASU!)

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