Procedural rights and probabilities in the state of nature

New year … same ol’ blog, so let’s continue with our review of Anarchy, State, and Utopia. Nozick identifies a major gap in natural law theory in the third subsection of Chapter 5 (pp. 96-101). Nozick sums up this enormous gap or gaping hole in natural law in a single eloquent and memorable sentence (p. 101): “The natural rights tradition offers little guidance on precisely what one’s procedural rights are in a state of nature …” This is not only a frank and intellectually honest conclusion; it is a damning one, especially for those of us (myself included) who believe in natural law and in the natural rights tradition.

But why is Nozick’s frank and stark conclusion so significant? Because as Nozick notes on pp. 91-101 of ASU, the scope of the right to self-defense depends on what procedural rights one has. Although we might all agree that one has the right to defend oneself and one’s property (and one’s family), it is unclear (at best) how far this right extends, especially in the state of nature. Specifically, what if you are an “independent” (i.e. are not a dues-paying member of a protection association) and you are accused by someone else of harming him or his property? Isn’t your accuser morally required to use fair and reasonable procedures to determine whether you are, in fact, guilty before he can punish you? But there’s the moral rub: What constitutes a fair and reasonable procedure? After all, any procedure is going to be imperfect to a greater or lesser degree. An innocent man might be found guilty with some positive probability, and a guilty man might be declared innocent with some probability, and furthermore, the choice of procedural rules will produce trade-offs. (Consider, by way of example, the famous legal maxim in the image below.) So, which probabilities and which trade-offs are morally required or morally acceptable? Stay tuned; we will continue our review of Chapter 5 of ASU tomorrow …

Image result for allow ten guilty men go free

What about 11 guilty men?

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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4 Responses to Procedural rights and probabilities in the state of nature

  1. Abogada Guerra says:

    I like that quote …

  2. Pingback: Monopolies in the state of nature? | prior probability

  3. Pingback: Fairness versus accuracy (review of Chapter X) | prior probability

  4. Reblogged this on prior probability and commented:

    I am reblogging Part 28 of my in-depth review of “Anarchy, State, and Utopia”, which covers the third subsection of Chapter 5 of ASU (pp. 96-101). There, Nozick identifies a major gap in natural law theory. (Suffice it to say, this is Nozick at his best!)

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