prior probability

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)…

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…

For most of Chapter 4, Nozick has been wondering why all wrongful acts are not allowed so long as compensation is paid. Here, in the sixth subsection of this chapter (pp. 65-71), Nozick presents (to his mind) his strongest argument against a permissive or compensation-based view of morality: the argument from fear. In the words of Nozick (p. 66): “Some [types of boundary crossings] we would fear, even knowing that we shall be compensated fully for their happening or being done to us.” This fear argument does not apply to all border crossings; only to those wrongful acts (such as rape, assault, and other forms of physical violence) that generate fear and apprehension. Nozick thus concludes that fear-inducing acts must be prohibited and punished as public crimes. (Presumably, non-fear-producing acts should be allowed so long as compensation is paid.)

Although the fear argument is plausible, three complications trouble us. One…

The fifth subsection of Chapter 4 (pp. 63-65) returns to the first of Nozick’s two theoretical questions (p. 63): “why not allow any boundary crossings provided full compensation is paid?” (Nozick will revisit his second question, “why not prohibit?”, later in the chapter.) Here, Nozick identifies two potential problems with such a permissive or compensation-based system of enforcing rights. One problem is that property rights would not be secure or stable, for in the words of Nozick (p. 64), “Anyone [could] seize a good, thereby coming to ‘own’ it, provided he compensates its owner. If several people want [the same] good, the first to seize it gets it, until another takes it, paying him full compensation.” (An economist, however, might be puzzled by this objection, since goods under such a permissive system would end up gravitating towards their highest-value uses! This simple economic argument, of course, is bullshit, since it…

We are now ready to resume our review of Anarchy, State, and Utopia. The fourth subsection of Chapter 4 (pp. 59-63) contains an extended digression into retributive and deterrence theories of punishment. Nozick takes a probabilistic approach to punishment (pp. 59-60), an approach which is music to our ears: “A person’s option of crossing a [moral] boundary is constituted by a (1 – p) chance of gain G from the [wrongful] act, where p is the probability he is apprehended, combined with the probability p of paying various costs of the act [if caught].” According to Nozick (p. 60), these costs include C, the payment of compensation to the victim; D, the emotional costs to the wrongdoer of being caught and tried; and E, the financial costs of getting caught and going to trial. As Nozick notes (p. 60): “Prospects for deterrence look dim if…

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 “Compensation Systems” (consisting of moral boundaries that can be crossed so long as compensation is paid) and “Prohibition 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

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 “Compensation Systems” and all paternalistic, prohibitive, or punishment systems “Prohibition Systems“.) As Nozick notes, if we were to favor a “Compensation System” of enforcing moral boundaries, two related problems will arise. One is the problem of measurement: how should harms or boundary crossings be measured and priced? The other…

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…

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? Additionally, Nozick raises a further 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? See, for example, Parcel “L” pictured below. (For what it’s worth, Nozick says 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…