prior probability

Do individuals have procedural rights in the state of nature? (Or conversely, do victims of harms or their allies have a moral duty to use only “fair and reliable” guilt-finding procedures before imposing any punishment on wrongdoers? Aren’t both formulations of this question the same?) Surprisingly (to us), although Nozick is prepared to announce that “individuals have rights”, he is ambivalent about the moral status of procedural rights in the state of nature! Nozick is considering interactions between “independents” and private protection agencies in the fourth subsection of Chapter 5 (pp. 101-108). More precisely, what if a due-paying member of a protection agency has committed a wrongful act against an independent? May the protection agency prohibit the independent from enforcing his rights? Suffice it to say that Nozick has trouble answering this question because of the uncertain status of procedural rights in the state of nature.

Nevertheless, in the course…

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…

Clarification (June 11, 2020): I wrote and posted this part of my extended review of Nozick’s classic book “Anarchy, State, and Utopia” back in December of 2017. Recently, however, one of my readers brought to my attention that Robert Nozick’s critique of Rawls’s “fairness principle” is based on a misconception (by Nozick himself no less!) of Rawls–namely, that Nozick is wrong to assume that Rawls’ principle of fairness implies “group rights” or “collective rights.” Based on our back and forth in the comments section below, I was persuaded that my reader’s diagnosis is correct, so please keep this in mind (i.e. that Rawls’s principle of fairness need not imply group or collective rights) when you read my original December 2017 blog post below.

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The second subsection of Chapter 5 of ASU (pp. 90-95) marks, to us, a critical turning point in the history of ideas. It is…

Nozick addresses a very intriguing question in the first subsection of Chapter 5 of ASU (pp. 88-90): when does a private protection agency in a (Lockean) state of nature have the moral right to prohibit a non-member from enforcing his natural rights? After all, according to Nozick, not only does every person have rights; every person also has the right to enforce his rights. But enforcement can be a risky business. What if, for example, a non-member uses enforcement procedures that are too risky or dangerous? Or, in the words of Nozick (p. 88): “An independent might be prohibited from privately exacting justice because his [enforcement] procedure is known to be too risky and dangerous–that is, it involves a higher risk (than another procedure) of punishing an innocent person or overpunishing a guilty one …” We call this the problem of risky independents.

Without getting bogged down in the details…

Nozick valiantly tries (alas, without success) to solve the stubborn problems of blackmail and criminal threats in the last subsection of Chapter 4 (pp. 84-87) of Anarchy, State, and Utopia. How? By drawing a distinction between positive-sum, value-producing “productive exchanges” (in which both parties are made better off by the exchange) and negative-sum, value-destroying “non-productive exchanges” (in which only one of the parties is made better off by the exchange). Although this familiar game-theoretic distinction is intuitively appealing, it is not of much help in the case of blackmail. After all, just because a victim of blackmail may feel betrayed and exploited by a blackmailer’s threat to reveal the victim’s secrets, the victim does, in fact, receive something of value if he pays the blackmailer: the latter’s silence. Worse yet, Nozick neglects the reciprocal nature of the blackmail problem: if the blackmail victim had not engaged in disgraceful conduct…

In our previous post, we saw Nozick’s “limited compensation rule” for risk-producing activities: in a state of nature, such activities should be allowed, but compensation must be paid if the risk materializes and a third party is injured by the risky activity. But what about the poor man problem? What if the person engaged in the risky activity is so poor that he is unable to pay compensation? Should he be prohibited from engaging in the risky activity in the first place? Nozick will address these questions in the next to last subsection of Chapter 4 (pp. 78-84).

To begin with, Nozick recognizes the reciprocal nature of the poor man problem. Simply put, if we forbid a poor man from engaging in a risk-producing activity because he is unable to pay compensation when someone is injured, this prohibition imposes a harm on the poor man because we are…

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…