prior probability

Thus far, Nozick has considered two possible extremes: an individualistic or Hobbesian society in which persons do not cooperate with each other (no cooperation), and a Rousseauian or Panglossian society in which everyone cooperates for the greater good (general cooperation). In the next subsection of the second part of Chapter 7 (pp. 189-197), Nozick makes two additional moves. First, he presents a third level of cooperation: intragroup or limited cooperation. Next, he uses this possibility of intragroup cooperation to turn Rawls’s theory of justice on its head.

To appreciate Nozick’s critique of Rawls, let’s revisit the latter’s two principles of justice. According to Rawls, a society is just if everyone is assigned equal rights and duties and if the least advantaged members of society are materially better off in that society than they would be in any other type of society. (Cf. image below by Gavin Nicholson.) According to Nozick, this second principle–the difference principle–invites us to divide society into broad groups: (1) losers, i.e. the least-advantaged or worst-off members of society, and (2) winners, who are “better endowed or more fortunate in their social position.” (Rawls, 1971, p. 15.)

The division of society into these two broad groups also opens up the possibility of limited or intragroup cooperation, or in the words of Nozick (p. 193): “… we [can] imagine less extensive schemes of partitioned social cooperation in which the better endowed cooperate only among themselves and the worse endowed cooperate only among themselves, with no cross-cooperation.” In short, winners cooperate with other winners; losers cooperate with other losers. (As an aside, the terms winners and losers are my own, not Nozick’s or Rawls’s. I will use these simplifying terms to convey the essence of Nozick’s critique of Rawls.)

Here is where Nozick turns Rawls’s theory of justice on its head. For Rawls, if you want to live in a just society, the winners must somehow compensate the losers in exchange for the losers’ cooperation. Nozick, however, turns this formulation on its head. In particular, he wonders whether it is the losers who must compensate the winners! Why? Because as long as intragroup or limited cooperation is a viable option for the winners, it is the losers who benefit more from a world of general cooperation than the winners do. Or to put it bluntly, as Nozick does (p. 194, emphasis in original): “… it is difficult to avoid concluding that the less well endowed gain more than the better endowed do from the scheme of general cooperation.”

To the extent this premise is true (i.e. the fact that the losers benefit more than the winners from a system of general cooperation), Nozick wins round 2. But Nozick fails to consider a fourth possibility. In place of no cooperation, limited cooperation, and general cooperation, there is also the possibility of violence and collusion by the losers against the winners, and it is this possibility that keeps Rawls’s theory alive. (We thus score round 2 a draw.) Nevertheless, Nozick presents yet another critique of Rawls in the next subsection of Chapter 7 (“The Original Position and End-Result Principles”). We will explore that subsection in our next blog post.

 

Nozick begins Section 2 of Chapter 7 by presenting John Rawls’s influential theory of distributive justice. (If you are not familiar with Rawls’s work or need a refresher, check out this summary here, via Larry Solum’s Legal Theory Blog.) By way of introduction (p. 183), he tells us right off the bat that Rawls’s theory is “powerful, deep, subtle, wide-ranging, [and] systematic” but that he (Nozick) will focus on his disagreements with Rawls. Next, Nozick draws a sharp contrast between two ideal types (in the Weberian sense) of societies: (1) no cooperation and (2) general cooperation.

In one ideal type of society there is absolutely no cooperation among its members (p. 184): “Let us imagine n individuals who do not cooperate together and who each live solely by their own efforts.” This Hobbesian or individualistic society will produce a collective payoff of “S”, where S is the sum total of goods and services produced by its individual members. In such a Hobbesian society there is no need for a sophisticated theory of distributive justice, since each person simply receives “what he gets unaided by his own efforts.” (Nozick, 1974, p. 185.) The other ideal type of society, by contrast, is one of widespread and general cooperation: everyone cooperates with each other for the greater good or mutual advantage of all members of the society. By cooperating with each other, this idyllic society thus produces a much larger collective payoff of “T”, where T is the sum total of goods and services collectively produced.

To his credit, Nozick concedes that T > S. In other words, a cooperative society will always produce far more goods and services than an individualistic society. But a cooperative society’s material abundance generates a new problem: how are the spoils to be divided among its members? Here, Nozick makes the following brilliant insight and identifies a huge blind spot in Rawls’s theory of justice: whatever theory of distributive justice we prefer (Rawlsian, libertarian, etc.), should we apply our theory to T or just to T – S?

As Nozick notes (p. 184), Rawls does not distinguish between T and T – S. Instead, Rawls assumes that the entirety of T is up for distributive grabs! Perhaps such an assumption would be justified if no individual’s contribution to the joint social payoff T can be isolated or disentangled. Yet according to Nozick, Rawls’s own theory of justice does, in fact, distinguish between winners and losers (p. 188): “For Rawls goes out of his way to argue that inequalities [of wealth] are justified if they serve to raise the position of the worst-off group in the society.” Of course, no one knows the identities of the winners and losers in Rawls’s hypothetical original position, when the principles of distributive justice are negotiated from behind a veil of ignorance, but as Nozick notes, the fact remains that once the veil of ignorance is lifted, there will be winners and losers.

For our part, we would award round 1 to Rawls, not to Nozick, because in reality, S will be so small as to approach zero. In a purely individualistic or Hobbesian society with zero cooperation among its members, the best each person could hope for is bare subsistence. Nevertheless, Nozick will introduce a third type of society in the next subsection of Chapter 7 of ASU (“Terms of Cooperation and the Difference Principle”), one involving limited cooperation. We will review this third possibility in our next blog post.

Let’s pick up where we left off: Section 2 of Chapter 7 of Anarchy, State, and Utopia (ASU), which contains nine separate subsections as follows:

• Rawls’ Theory (p. 183)
• Social Cooperation (pp. 183-189)
• Terms of Cooperation and the Difference Principle (pp. 189-197)
• The Original Position and End-Result Principles (pp. 198-204)
• Micro and Macro (pp. 204-216)
• Natural Assets and Arbitrariness (pp. 213-216)
• The Positive Argument (pp. 216-224)
• The Negative Argument (pp. 224-227)
• Collective Assets (pp. 228-231)

Here, Nozick will engage in mano-a-mano combat with his intellectual nemesis: John Rawls. Yeah, baby!

We reviewed every section of the first seven chapters (up to page 182) in Robert Nozick’s book Anarchy, State, and Utopia during the winter break. (Here is a compilation of our previous posts on Nozick.) We will begin reviewing the rest of Nozick’s classic work soon. (His tombstone is pictured below, but as we shall see, his ideas will live on.)

We’ve been reading the third edition of Introduction to Legal Theory (1979) by John D. Finch. (This little tome is pictured below, left.) At one point, Professor Finch sums up Hans Kelsen’s critique of natural law thus (emphasis added by us): “For Kelsen, natural law theories amount to theories of justice; and however they are described, he regards them as consisting for the most part of empty formulae. By the methods of natural law doctrine one can, says Kelsen, maintain and even apparently prove opposite postulates. A theory of natural law can be as conservative or as revolutionary as each writer cares to make it; they all consist of assertions which are not proved. Such theories are concerned with political and ideological tasks, not scientific ones ….” (See Finch, 1979, p. 110.) In other words, natural law theories are indeterminate and untestable; i.e. they are open ended and are unfalsifiable in the Popperian sense. Okay, fine, but can’t the same nasty things be said of any theory of law, including legal positivism?

On this day in 1789 residents of Paris stormed La Bastille, a fortress-prison on the eastern edge of the city, thus precipitating the French Revolution and forever changing the course of history.

We began our review of Stephen A. Sachs’s paper “Finding Law” in our previous post. In brief, Professor Sach’s argues that “positive law” or man-made law is not the only source of law, for some laws are unwritten, much like the rules of language, the conventions of fashion, and the precepts of etiquette. In addition, Sachs states the source of this body of unwritten law is usage and social practice. We also made an additional observation in our previous post: whether by design or by accident, Sach’s unwritten law looks a lot like traditional natural law, except that Sach’s version of natural law can change over time as usages and social practices change. But Sachs’s unwritten natural law thesis poses two deeper problems: (1) discovery and (2) demarcation. That is, how do we go about discovering this body of law? And secondly, how do we distinguish this body of law from these other law-like domains, i.e. language, fashion, and etiquette?

According to Professor Sachs (p. 19), both the process of discovery and the line of demarcation revolve around “practice-plus-obligation.” (Again, all page references are to the version of the paper posted on SSRN.) Sachs cites two classic Blackstonian criteria in support of this practice-plus-obligation formulation (p. 15, quoting Sir William Blackstone (pictured below), the author of the treatise “Commentaries on the Laws of England”): “we might well identify unwritten legal rules largely as Blackstone did: by their ‘long and immemorial usage, and by their universal reception.’” But, in fact, Sachs’s rejects the “universal reception” requirement. What matters for Sachs is what such legal elites as trained lawyers and actual judges believe the law to be (p. 18): “… legal customs of elites [are] the legal customs of their society. So long as we can pick out the experts, and the experts can pick out the rules, the rules still belong to us all.”

There are two potential problems with Professor Sachs’s practice-plus-obligation formulation, however. One weakness in Sachs’ argument is the problem of disagreement. Specifically, what happens when the relevant group of people disagree about what the relevant social practice is? By definition, if people agreed on the content of the law (i.e. on the content of the relevant social practice), they would not be in court arguing over the law! In reality, the scope and meaning of the law is often a contested domain, even when the law is written down.

But let’s put aside the problem of disagreement for the sake of argument. Let’s assume people actually agree on what the law is in any given case. There is still a more serious problem with Sachs’s practice-plus-obligation formulation: circularity. (As an aside, the circularity problem also bedevils the H.L.A. Hart’s “internal point of view” theory.) It is circular since a social practice would not exist unless people felt obligated to follow it! To see why, ask yourself the following question: why do people follow a social practice? If the answer is “because they feel obligated to follow the social practice”, now ask yourself the next logical follow-up question: why do people feel obligated to follow the social practice? If the answer is “because it is a social practice”, the circularity of the practice-plus-obligation formulation becomes obvious.

Nevertheless, although we are skeptical of Sachs’s discovery and demarcation criteria,  we do agree with Sachs’s thesis about the existence of an unwritten natural law. Without such a natural law, how could we criticize the old transatlantic slave trade (before it was made illegal) or the atrocities committed by Nazi Germany (before the Germans lost the war)? In our next post, we shall posit a different solution to the problems of disagreement and circularity: Oliver Wendell Holmes’s prediction theory of law. Just as we can use Holmes’s prediction theory to figure out which laws will be enforced, we can also apply this theory to the domain of natural law.

Happy Bastille Day!

Is the common law made or found? Are Anglo-American judges legislators or oracles (or both)? In short, when deciding a close case, does a judge make law–the standard positivist view of judging–or does he find law? For anyone who is fascinated by these perennial questions, Professor Stephen A. Sach has written a beautiful, erudite paper “Finding Law” addressing these deep questions.

Here is Professor Sachs’s provocative thesis in a nutshell (p. 10): unwritten law “might be like other normative systems, such as grammar, etiquette, or fashion, which are solidly rooted in social facts without having been formally adopted by anyone.” (All page references are to the version of the paper posted on SSRN.) In other words, unwritten law is a lot like language, fashion, and etiquette because all these disparate domains are governed by general rules and shared norms, and although these behavioral customs are not deliberately made or manufactured by any one entity or organization, they are nevertheless accessible and easy to discover.

Professor Sachs, perhaps unwittingly, thus makes a strong case for the existence of unwritten natural law. Although he rarely uses the old-fashioned words “natural law” in his paper (he prefers the terms “custom” and “customary law” instead), what other type of unwritten law is there? After all, mere customs aren’t binding on judges the same way as natural law purports to be. In any case, whichever terminology we use, Sachs makes a strong case that “law” does not consist purely of holdings or precedents or statutes; “law” (contra legal positivism) can consist of unwritten and (locally) universal set of law-like principles.

But where do these diverse rules and norms come from, and how do we discover them? Let’s address the first question first. According to Professor Sachs, the ultimate source of these social customs is “usage today” (p. 22), the “mass of practice” (p. 23), “widespread practice” (p. 24), “prevailing views” (p. 38), and the like. (You get the picture.) In short, whichever way we formulate the source of unwritten natural law, the general idea is the same: an uncodified custom is “law” when enough people (or legal experts, in the case of law) believe in the existence of said custom. (As an aside, this view of law opens up the peculiar possibility of competing customs or multiple natural laws (!), depending on how many adherents a particular custom or unwritten law may have.)

That leaves open Sachs’s second question: how do we go about discovering these norms? That is to say, it’s one thing to say that unwritten natural law is like language, fashion, and etiquette. How do we then distinguish between rules of law and these other unwritten normative systems? We will address this key question in our next post.

Source: Kitime Eluid