prior probability

In addition to my in-depth page-by-page review of the first five chapters of Anarchy, State, and Utopia, I have been working on two other projects this fall. First, I wrote up a short paper titled “The Case for Bayesian Voting” (available here via SSRN), which is a reply piece to Eric Posner and Adrian Vermuele’s thought-provoking (but underspecified) article “The Votes of Other Judges”. (Their insightful article is available here.) In addition, I wrote up the first draft of a “Reacting to the Past” Game Book titled “Hacking Harvard” (available here) for my undergraduate business law and ethics class. (For more information about “Reacting to the Past” and role immersion in undergraduate teaching, check out this wonderful website.) My version of my reacting game is centered around a hacking incident — memorably depicted in the movie “The Social Network” — that occurred at Harvard in the fall of 2003.

In addition to the first five chapters of Robert Nozick’s classic book “Anarchy, State, and Utopia“, we read, tried to read, or began reading the following few books over the holidays:

1. Karl Sigmund, “Exact Thinking in Demented Times: The Vienna Circle and the Epic Quest for the Foundations of Science“, Basic Books (2017), available here from Amazon. In addition, here is a good review by Tyler Cowen, who alerted us to the existence of this beautiful book.

2. Giorgio Agamben, “What Is Philosophy?“, Stanford University Press (2017) (translated by Lorenzo Chiesa). We are big fans of Agamben’s works, especially his book “State of Exception”, but we found this collection of essays, by contrast, to be obscure and very difficult to read. (Not all was lost, since we also read this excellent review of an earlier work by Agamben.)

3. Joseph Vining, “From Newton’s Sleep“, Princeton University Press (1995) (pictured below). We’ve just started reading this strangely titled tome, so we’ll have more to say about it in a future blog post.

It’s time to wrap up our review of Chapter 5 of Anarchy, State, and Utopia (ASU). The last two subsections of Chapter 5 (pp. 113-119) are philosophical garbage disappointing. Why? Because Nozick concludes with two Panglossian claims, and neither rosy conclusion is supported by any actual evidence. First, he claims that a territory’s dominant protection agency will eventually become “a statelike entity” (p. 118), since it will prohibit non-clients from enforcing their rights in their dealings with the clients of the protection agency. Next, Nozick concludes that the phase transition from private protection racket to statelike entity will occur without anyone’s natural rights being violated, since the dominant agency will agree to compensate non-clients by providing them in kind protection services. Seriously? Who is he kidding? Nozick begs a number of fundamental questions in reaching these unsupported and speculative conclusions. In particular, and putting aside the free rider problem we mentioned in our previous post, what if a non-client doesn’t want compensation? What if he wants the right to exact vengeance? In short, why doesn’t the non-client get to decide whether it wants compensation and in what form, and who adjudicates any disputes between the protection agency and non-clients? Why, it’s the protection agency itself! Nozick’s benign “protection agency” is starting to look more and more like a Hobbesian “protection racket,” just as we have argued all along! Not all is lost, however. We will move onto Chapter 6 of ASU on Monday …

To his credit, Nozick recognizes the reciprocal nature of the relationship between private protection agencies and independents in the sixth subsection of Chapter 5 (pp. 110-113). Specifically, if a protection agency decides to prohibit independents from exercising their right of self-help against due-paying members of the agency (on the pretext that the guilt-finding procedures of independents are unreliable and unfair), such a prohibition would impose a significant disadvantage on independents. So, what is to be done? In a word: compensation.

In summary, Nozick re-introduces his principle of compensation from Chapter 4 of ASU (p. 110, emphasis added by us): “The clients of the protection agency, then, must compensate the independents for the disadvantages imposed upon them by being prohibited self-help enforcement of their own [natural] rights against the agency’s clients.” So far, so good. But, alas, to make this scheme workable, Nozick qualifies his compensation principle in a major way. According to Nozick, the compensation to be paid need not be in money; instead, the compensation can be in kind. In Nozick’s words (p. 112, emphasis added by us), “the dominant agency must supply independents … with protective services against its clients.”

Say what???? Free protection services for all? Although Nozick mentions the possibility of free riders, he is far too quick to dismiss the free rider problem that will most likely result from the compulsory provision of protection services to independents. After all, if independents have a natural right to protection services (if a protection agency prohibits them from using self-help), then what incentive does a person have in the first place of becoming a dues-paying member of a protection agency? Also, go back to the quotes above. Why must? And in any case, why does the protection agency get to decide in what form — in money or in kind — the compensation can take? (In other words, why doesn’t the independent who has been disadvantaged by the self-help prohibition get to decide how it wants to get paid?) To bring this post to a close, suffice it to say that Nozick’s picture of the state of nature is out of focus; his intellectual edifice is on very shaky ground. Can Nozick perfect his theoretical painting in the last two subsections of Chapter 5, or will the entire structure collapse like a proverbial house of cards? We will review the rest of Chapter 5 in our next blog post …

Nozick appears to equivocate in the fifth subsection of Chapter 5 (pp. 108-110). He now claims that everyone has procedural rights (p. 108): “Everyone has the [natural] right to defend against procedures that are in fact not, or not known to be, both reliable and fair.” But as we noted in a previous post (2 Jan 2018), this claim raises a whole new set of complicated questions — questions that the natural law tradition, unfortunately, are unable to answer. In particular, since no guilt-finding procedure will be perfect, what level of imperfection is consistent with fairness and reliability? Nozick also makes another extraordinary conjecture in the fifth subsection of Chapter 5. In brief, building on his earlier conclusion (from Chapter 2 of ASU) that a single private protection agency will end up becoming the “dominant” one in the state of nature, Nozick now further conjectures that this dominant agency will not allow any independent (or any other protection agency, for that matter) to punish its due-paying members, thus claiming a “de facto monopoly” over the use of force against its own members.

These conclusions are not too far-fetched. Think, for example, of Facebook’s dominance in social media or Google’s dominance in Internet search. Before these dominant firms came along, there were plenty of social media sites (remember chat rooms, MySpace, and Friendster?) and plenty of Internet search engines (remember Yahoo!, AOL, and Alta Vista?). But at the same time, as we noted in another previous post (30 Nov 2017), we are skeptical about the emergence of a single dominant protection agency in the state of nature. Unlike Internet services in today’s modern economy, which are based on trade secrets, service marks, and other forms of government-protected intellectual property, there is nothing special or unique about “protection” services. As a result, a private protection agency with the most “muscle” or strongmen will become the dominant one, but why should potential strongmen all join or remain with a single protection agency, especially when there is no way of enforcing promises in the state of nature?

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 of considering the status of procedural rights, Nozick poses a new and original and truly thought-provoking question about the possible relationship between knowledge and moral rights (p. 106): “Shall we say that someone doesn’t have a right to do certain things unless he knows certain facts, or shall we say that he does have a right but he does wrong in exercising it unless he knows certain facts?” In other words, there are two ways of interpreting natural rights. Under the first interpretation, my natural right to punish a wrongdoer depends on the state of my knowledge about who the wrongdoer is. Under the second interpretation, by contrast, I have this right regardless of the state of my knowledge, but it would be wrong of me to enforce my rights without the requisite knowledge of who the wrongdoer is. Both interpretations of natural rights also raise a deeper epistemic question: how do we “know” which interpretation is the correct one? Nozick, for example, prefers the second of the two epistemic views of rights, while we prefer the first, simpler one (see image below), but aside from taking a vote, is there any correct or principled way of choosing between either interpretation of natural rights?

Credit: Alyson Hall

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 …

What about 11 guilty men?

We will return to Chapter 5 of Anarchy, State, and Utopia in a day or two. In the meantime, our most whimsical New Year’s resolutions are to visit Denmark and watch at least 52 Bollywood films in 2018 …

Update (1/1/18): My wife and I just saw Jab We Met on Netflix. Although Netflix put this film under “musicals,” buyer beware … the first musical number doesn’t happen until after the first full hour!

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.

* * *

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 here where Nozick does direct battle against his main nemesis: John Rawls’s famous principle of “justice as fairness.” What is Rawls’ fairness principle? Nozick puts it this way (p. 90): “This principle holds that when a number of persons engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary [for the venture to succeed], those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission [as well as the corollary right to enforce this acquiescence].” This fairness principle, however, implies the existence of collective or group rights, since this principle bestows on a group of individuals — assuming, of course, they are engaged in a mutually beneficial enterprise — group rights against selfish free riders who would enjoy the benefits of the collective enterprise without paying their fair share or without abiding by the same rules that everyone else is playing by. There’s the rub: the idea of “collective rights” goes against Nozick’s baseline moral premise “that no new rights ‘emerge’ at the group level, that individuals in combination cannot create new rights which are not the sum of preexisting ones” (p. 90). So, who’s right, Nozick or Rawls?

Although we have questioned Nozick at every turn thus far, it is here that Nozick finally begins to win us over. How? With a simple but memorable thought experiment, one that immediately exposes the moral fallacy in Rawls’s fairness principle (p. 93):

“Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone’s funny story. The other people have put themselves out. But must you answer the call when it is your turn to do so?”

There is, of course, no “right answer” to Nozick’s memorable hypothetical, since your answer will no doubt depend on your view of ethics, on whether you are a Humean consequentialist or a Kantian champion of absolute moral duties. As Nozick himself notes (on p. 94), a consequentialist’s answer to Nozick’s hypothetical would be yes only if “the benefits to a person from the actions of the others are greater than the costs to him of doing his share.” A Kantian or duty-based view of right and wrong, by contrast, would look for the individual’s consent or prior agreement, since voluntary consent is the cornerstone of Kantian ethics. Or in Nozick’s eloquent words (p. 95), “One cannot, whatever one’s purposes, just act so as to give people benefits and then demand (or seize) payment. Nor can a group of persons do this.”

For now, then, it’s Nozick 1, Rawls 0 … But this is only the first round! What about Rawls’ influential theory of tacit or hypothetical consent, the notion that everyone would have agreed to play by certain rules had they negotiated these rules in the original position from behind a Rawlsian veil of ignorance? Stay tuned: we will continue our review of Nozick after the New Year holiday …