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Notes
Protection agencies are agencies that Nozick thinks individuals would contract for the purposes of both protecting and enforcing their rights when those rights are violated by others. I will say more about the rights that Nozick thinks individuals have in the state of nature in the second section of the paper.
It may appear that I have left out the second stage from Nozick’s story, which is the transition from the dominant protection agency to what he calls the ultra-minimal state. Nozick describes the ultra-minimal state as maintaining a monopoly over all use of force, while it provides protection services only to those who have purchased those services. See Anarchy, State, and Utopia (New York: Basic Books Inc., 1974), p. 24. (Hereafter ASU.) However, a monopoly over the use of force would be morally legitimate only on the condition that the dominant protection agency or the ultra-minimal state compensates non-clients for that monopoly. For this reason there is really no point in time in which the ultra-minimal state would exist if the transition is to be morally legitimate; the transition must proceed directly from the dominant protection agency to the minimal state. Nozick’s discussion of the ultra-minimal state is best understood as a heuristic meant to identify the conceptual mechanisms by which the emergence of a monopoly of force would be morally legitimate.
For Nozick’s discussion of the principle see op. cit., pp. 78–87.
See for example Robert Holmes, “Nozick on Anarchism”; Jeffrey Paul, “The Withering of Nozick’s Minimal State”; and Robert Wolff, “The Derivation of the Minimal State.” All three articles can be found in Jeffrey Paul (ed.), Reading Nozick: Essays on Anarchy, State, and Utopia (New Jersey: Rowman and Littlefield, 1981). See also David Miller, “The Justification of Political Authority,” in David Schmidtz (ed.), Robert Nozick (Cambridge: Cambridge University Press, 2002), 10–33; Keith Hyams, “Nozick’s Real Argument for the Minimal State,” Journal of Political Philosophy 12 (2004): 353–364; Eric Mack, “Nozickian Arguments for the More-Than-Minimal State” in Ralf Bader and John Meadowcroft (eds.), The Cambridge Companion to Anarchy, State, and Utopia (Cambridge University Press, 2011), 89–115.
For example, in his paper “Nozickian Arguments for the More-Than-Minimal State,” Eric Mack runs together the discussion of the cross-and-compensate conception of rights with the principle of compensation (see op. cit., pp. 100–103). See also his article, “Robert Nozick’s Political Philosophy,” section 3.2, The Stanford Encyclopedia of Philosophy (Summer 2018 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/sum2018/entries/nozick-political/. While Mack does rightly note that Nozick does not require prior negotiations when it comes to the principle of compensation, he misses the morally salient feature between cross and compensate and the principle of compensation that makes the latter unobjectionable in Nozick’s eyes. I explain this difference in Section 2 of the paper.
My claim about the restrictiveness of self-ownership and property rights exceeds the problems documented by David Sobel in his paper, “Backing away from Self-Ownership,” Ethics 123 (2012): 32–60, pp. 35–36.
Eric Mack points out that Nozick’s introduction of the cross-and-compensate conception of rights introduces an economic conception of rights that is in tension with the deontic conception of rights. See his “Nozick on Unproductivity: The Unintended Consequences,” in Jeffrey Paul (ed.), Reading Nozick: Essays on Anarchy, State, and Utopia (New Jersey: Rowman and Littlefield, 1981), 169–190, pp. 186–87.
In this sense, Sobel is correct in suggesting that the entire cross-and-compensate scheme of rights can be understood as an alternative to the impracticable and severely liberty-restricting circumstances that follow from enforcing the self-ownership and property conception of rights (see op. cit., p. 38).
To be accurate, Nozick does not explicitly reject cross-and-compensate altogether. He ends his discussion by stating that any operational view of cross and compensate ought to be limited by the considerations that he raises, and that “we have not yet found a precise principle…[that] triangulate[s] a solution in all its detail,” (op. cit., p. 73). It is important to recognize that that these concerns raised by Nozick are not merely concerns about the feasibility of compensation, and rather have to deal with the tensions generated between the cross-and-compensate conception of rights and the self-ownership and property conception of rights. For his purposes, he proceeds to restrict his discussion to the more narrow principle of compensation, which should not be confused with the broader cross-and-compensate scheme, but he does leave it open as to whether the broader cross-and-compensate scheme could somehow be formulated in such a manner as to accommodate the concerns he raises. As we will see, the principle of compensation is delimited in the manner it is precisely in order to address the concerns raised by Nozick’s commitment to the self-ownership and property conception of rights. In other words, Nozick is fully aware of the tension that any compensatory scheme of rights introduces, and he attempts to address that tension by appealing to the principle of compensation.
My discussion here excludes Nozick’s second argument that cross and compensate would engender a culture of fear. For this argument see Nozick, op. cit., pp. 65–71.
See ibid., pp. 63–65.
See Sobel, op.cit., p. 44.
Nozick, op. cit., p. 73.
To be fair, Sobel does mention the paternalism charge against cross and compensate, but he presents it as an external reason, as opposed to one internal to Nozick’s own position, for rejecting cross and compensate (see op. cit., p. 47). In doing so I think he gives short shrift to Nozick’s reasons for rejecting cross and compensate as found in the text, and it is important for my purposes in this paper to show that these are in fact Nozick’s reasons for rejecting cross and compensate. I believe that my reading better explains Nozick’s motivations for transitioning to the principle of compensation. As I will show in the second section, Nozick thought that the principle of compensation was better equipped to circumvent the problem of consent, which explains his adoption of this principle, rather than the cross-and-compensate scheme of rights, in his argument for the minimal state.
Nozick, op. cit., p. 71.
See Sobel, op. cit., p. 46.
It seems as if the potential rights violator would have to calculate the potential rights-violated individual’s average rate of progress based on her past rate of progress to determine whether compensation for lost time should account for any notable milestones and their benefits, such as promotions, etc.
It may turn out that rights violations are never, or nearly never, justified because compensation turns out to be impossible in nearly all cases. Sobel might respond that that rights violations rarely are justified is not a reason for abandoning the entire scheme. There is something appealing to the idea that in (only) really exceptional cases rights violations are permitted provided compensation is paid, and the extent that liberal philosophers, or any rights-based theory, should be open to such possibilities is an important question.
Even though Nozick has little to say from a normative perspective about the conditions under which individuals can be said to provide genuine consent, we need not construe the consent requirements strongly in terms of actual consent to demonstrate the problem. Onora O’Neill has argued that the best way to interpret Kant’s injunction against treating others merely as a means is to provide others with the possibility to consent. However, cross and compensate violates even this weaker interpretation. See her “Between Consenting Adults,” Philosophy and Public Affairs 14 (1985): 252–277, pp. 260–263.
It is Gerald Cohen who attributes the thesis of self-ownership to Nozick. See his Self-Ownership, Freedom, and Equality (Cambridge: Cambridge University Press, 1995). See also Mack’s SEP article on this point.
Nozick writes, “The central core of the notion of a property right in X, relative to which other parts of the notion are to be explained, is the right to determine what shall be done with X; the right to choose which of the constrained set of options concerning X shall be realized or attempted” (op. cit., p. 171). Similarly, in their Stanford Encyclopedia article on libertarianism Peter Vallentyne and Bas van der Vossen write that control rights—claim rights preventing others from using one’s property without one’s consent—are essential to both self-ownership and property rights. "Libertarianism," The Stanford Encyclopedia of Philosophy (Fall 2014 Edition), Edward N. Zalta (ed.), URL = https://plato.stanford.edu/archives/fall2014/entries/libertarianism/.
As a point of fairness, again, to Sobel’s comments on the matter, he does recognize these problems—issues about property use and the interruption of life plans—as problems internal to cross and compensate. My issue is less with Sobel’s substantive conclusions regarding cross and compensate itself and more with his suggestion that these aren’t Nozick’s reasons for rejecting cross and compensate. For example, Sobel writes that “Nozick nowhere explains why he thinks that cross and compensate uses others as a means,” (op. cit., p. 46). But it seems to me that if we look to Nozick’s comments regarding property use that I have cited then we have a very coherent explanation for what Nozick means by the phrase. Furthermore, we can point to earlier passages in ASU—such as Nozick’s discussion of side constraints (pp. 30–33)—where he explicitly mentions rights as an interpretation of Kant’s injunction against using others as a means. Admittedly, these comments concern primarily utilitarian justifications for violating rights, where the well being of the rights-violated individual is sacrificed. But as I have highlighted in the text above, Nozick believes—he explicitly affirms this within the very context of his discussion of cross and compensate—that the amount of compensation is irrelevant to the justifiability of rights violations. What we end up with are two different ways in which individuals may be used—one according to the utilitarian conception of rights and one according to the cross-and-compensate conception of rights—but both use persons by ignoring their consent, despite the fact that there are different consequences for the well being of individuals who are used. Cross and compensate does not generate internal problems within Nozick’s theory, as Sobel suggests (see op. cit., p. 46). Nozick was aware of these potential internal problems and rejected cross and compensate precisely to avoid them. I will suggest in the second section of the paper that he adopted the principle of compensation instead as a means for avoiding (unsuccessfully, I might add) these internal problems that the adoption of cross and compensate would indeed have generated.
The second internal problem that Sobel points to is that cross and compensate allows for the continual interruption of autonomously selected life plans, and this is at odds with the deontological basis of the self-ownership rights that Nozick expresses earlier in ASU. To make the latter point Sobel refers to the relevant passage in ASU where Nozick grounds rights in the capacity to form life plans (see Sobel, op. cit., p. 47). Yet he does not mention these very same passages when he discusses Nozick’s own reasons for rejecting cross and compensate, even though Nozick specifically states that “a system permitting boundary crossing, provided compensation is paid, embodies the use of persons as means; knowing they are being so used, and that their plans and expectations are liable to being thwarted arbitrarily, is a cost to people” (op. cit., p. 71, emphasis mine). It is odd then to suggest that these aren’t Nozick’s reasons for rejecting the system. Sobel’s failure to see these reasons as Nozick’s reasons for rejecting cross and compensate stems from a common failure in the literature to distinguish appropriately between cross and compensate and the principle of compensation: these reasons cannot be Nozick’s reasons for rejecting cross and compensate if he never rejects cross and compensate. The product is a wildly inconsistent, and in my mind, uncharitable reading of ASU. At the same time, this is not to suggest that there is no tension in Nozick’s position, but as I suggested in the previous paragraph, Nozick was aware of this tension, and he attempts to address it by appealing to the more moderate principle of compensation.
Further textual support is found in Nozick’s discussion and rejection of the principle of fairness. He writes, “even if the principle [of fairness] could be formulated so that it was no longer open to objection, it would not serve to obviate the need for other persons’ consenting to cooperate and limit their own activities,” (op. cit., p. 95, emphasis original). That an individual benefits from a particular transaction is by itself insufficient to determine whether any enforceable obligations have arisen insofar as the individual never consented to the transaction in the first place.
Sobel writes, as one example, “It [cross and compensate] does permit us to take someone’s property without her consent so as to benefit another. But it does not permit us to harmfully take someone’s property and give it to another,” (op. cit., p. 46, emphasis mine). By “harmfully” I take Sobel to mean either (non-exclusively) that one’s property was taken by force or the property was taken in a manner that avoided acquisitional harm, but it harmed the individual by worsening her well being in some form. As another example see Michael Otsuka where he says that self-ownership “bars others from intentionally using one as a means by forcing one to sacrifice life, limb, or labour…” Libertarianism without Inequality (New York: Oxford University Press, 2003), p. 15, emphasis original.
Nozick, op. cit., pp. 82–83, emphasis original.
Ibid., op. cit., p. 82.
See ibid., p. 82.
See ibid., p. 111
See Robert Holmes’ “Nozick on Anarchism,” where he states “either it is wrong to prohibit independents from trying to enforce their rights and to punish them for doing so, in which case the UMS [ultra-minimal state] acts immorally in doing these things, or it is not wrong, in which case there is no reason to transcend the UMS” (op. cit., p. 61). Jeffrey Paul, in his paper, “The Withering of Nozick’s Minimal State,” makes the same point: “Either the risky activity of the agency constitutes a violation of rights, or it does not. If it does, then its prohibition is merely a legitimate defense of rights and no compensation ought to be due to the perpetrator of the violation…If the risky activity was no violation of rights, then its forcible prevention is a wrongful (rights violating) act which deserves at least punishment, and perhaps, compensation,” (op. cit., p. 70). And lastly, Robert Wolff, in his article, “The Derivation of the Minimal State,” says that “the protective agency employs methods that it considers proper, and only prohibits methods it considers improper. So from its point of view, no disadvantage has been suffered by the nonclients,” (op. cit., p. 83, emphasis original). While the main thrust of these passages is nearly identical, there are important subtleties that differentiate each: Holmes’ focus is on whether the state has such a right of prohibition more generally; Paul’s concern stems from how individuals have acted, which determines in turn the correct course of action by the state; and Wolff’s objection depends on the claim that the dominant protection agency is obliged to compensate only independents who exercise their procedural rights according to reliable procedures (see op. cit., p. 83).
See Nozick, op. cit., pp. 10–12, 56, 101. For a more general discussion of procedural rights in state-of-nature theories see Nozick, op. cit., pp. 96–101. I take the exercise of these procedural rights to be an extension of individuals’ self-ownership and property rights: it is up to each individual to choose to exercise these rights for themselves or to choose to contract these rights to a protection agency.
See ibid., pp. 102–103.
These rights are conditional insofar as they as depend on others acting in certain ways.
See ibid., pp. 102, 108.
See ibid., pp. 107–108.
See ibid., p. 106.
See ibid., pp. 101, 107.
See ibid., p. 102.
Because individuals have a right that others do not use unreliable procedures and no individual has a right to use unreliable procedures, there can be no conflict between the rights of two individuals in such cases. The individual who employs unreliable procedures is simply wrong for doing so.
See Nozick’s comments: “If the protective agency deems the independents’ procedures for enforcing their own rights insufficiently reliable or fair when applied to its clients, it will prohibit the independents from such self-help enforcement,” (Ibid., p. 110, emphasis mine); “It goes without saying that these dealings and prohibitions apply only to those using unreliable or unfair enforcement procedures” (Ibid., p. 112, emphasis mine); “Everyone it [the dominant protection agency] prohibits from self-help enforcement against its clients on the grounds that their procedures of enforcement are unreliable or unfair…” (Ibid., p. 112, emphasis mine). The entire discussion is conducted in reference to unreliable and unfair procedures.
At the conclusion of Nozick’s discussion in chapter 5 he states, “We speak of cases where almost all of the people in the territory are clients of the dominant agency and where independents are in a subordinate power position in conflicts with the agency and its clients. Precisely what percentage must be clients and how subordinate the power position of the independents must be [in order for the dominant protection agency to have a monopoly of force and to count as a state] are more interesting questions…” about which he has “nothing especially interesting to say” (Ibid., p. 117, emphasis mine).
No system of punishment can guarantee that no innocent individuals will be punished, and there is no reason, according to Nozick, to suppose that individuals would converge on some threshold of probability that a reliable procedure must meet, without the dominant protection agency identifying such a threshold (see ibid., p. 96). David Miller’s criticism of Nozick’s argument focuses on precisely this point. He argues that in the absence of any objective measure for determining the reliability of a procedure, compensating independents for prohibiting them from exercising what they reasonably judge to be reliable (and superior) procedures would fail to compensate them adequately, from their perspective, for that prohibition (see Miller, op. cit., p. 24).
It would be coherent for one, and only one, individual (or group, when the right to prohibit is applied only to non-members) to have both of these rights.
See Nozick, op. cit., p. 83.
For similar comments on this point that I am in agreement with see Hyams, op. cit., p. 358.
See Nozick, op. cit., p. 84.
For now I leave the type of harm open. But we will see in the following section that the principle of compensation runs into problems once we construe this harm in terms of non-consensual use.
The fact that the example may indeed be “extravagant” as Nozick says does nothing to diminish one’s surprise that compensation would be owed in principle. See Nozick, op. cit., p. 82.
One could argue that even if no material harm (damage to the participants’ bodies) actually transpires welfare harm does occur from fear of that outcome. It is possible to imagine variations where even this sort of harm is not present. Perhaps the gun is pointed at the back of my head without my knowledge. In the end, the presence of these two harms is not necessary to explaining rights violations, and it seems that the only reason that this sort of welfare harm matters is precisely because the unwilling participants have not consented to participating in the game in the first place.
To what extent this would make room for different forms of soft paternalism depends on how we construe the idea of force when it comes to acquisitional harm. I will return to this point shortly.
The presumption must certainly work in the direction of not attributing consent to individuals who perform an action that runs against their clearly identified preferences. The onus falls on those who would attribute consent to such individuals to explain why it remains appropriate to do so.
I thank an anonymous reviewer for providing the example.
I thank an anonymous reviewer for pressing me on this point.
If one thinks that an appeal to this example begs the question here because Nozick did not think of this action as violating the rights of others, one could slightly alter the example. An individual could, for example, use the body of another for boxing practice without acquiring possession of the other’s body.
Shortly after Nozick introduces the core feature of property rights he goes on to say, “We lack an adequate, fruitful, analytical apparatus for classifying the types of constraints on the set of options among which choices are to be made, and the types of ways decision powers can be held, divided, and amalgamated. A theory of property would, among other things, contain such a classification of constraints and decisions modes, and from a small number of principles would follow a host of interesting statements about the consequences and effects of certain combinations of constraints and modes of decisions” (op. cit., p. 171, emphasis original). It is not clear that the prospects for such a theory are at all encouraging. Given all the different types of objects that can be owned, and in all the different ways they can be used, it is not clear that the same principles would always be satisfactory.
To what extent the principle of compensation permits interference without compensation depends on highly contextual matters, such as the action in question, how the action relates to the normal situation (and however this is defined), and so on, but the possibility is open.
See Nozick, op. cit., pp. 262–264.
For Nozick’s view on coercion see his article “Coercion,” in S. Morgenbesser, P. Suppes, and M. White (eds.), Philosophy, Science, and Method (New York: St. Martin’s Press, 1969), 440–472.
See Serena Olsaretti, “Rescuing Justice and Equality from Libertarianism,” Economics and Philosophy 29 (2013): 43–63, p. 52.
For similar comments see Olsaretti, op. cit., p. 50.
The idea is that the most preferred eligible individuals will end up marrying each other, leaving less preferred options for the remaining singles. Yet our intuitions do not tell us that these individuals who marry their less, or even least, preferred option do not thereby consent to their marriages; rather, we believe that they do consent, even in pursuing their least preferred option. For a fuller discussion of the example see Nozick, ASU, pp. 262–264.
There is an additional problem with construing physical force as a necessary condition for the occurrence of the harm of non-consensual use. A position like this seems incapable of capturing all instances of rights violations that Nozick would want to capture, as the exercise of physical force or coercion does not seem to be a necessary condition for generating violations of property rights. Distributors of pollutants, for example, do not physically force individuals to be subject to pollution. Does an individual use physical force in carrying off a soccer ball lying on my lawn? The many complexities surrounding different types of property—both material and immaterial—make an appeal to the necessity of physical force particularly unsuited as a means for delimiting when the harm of non-consensual use occurs.
Acknowledgements
I am grateful to Andrew J. Cohen for helpful discussion on a number of points and to an anonymous reviewer for helpful and thorough comments on earlier drafts.
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Eftekhari, S. Compensation, Consent, and the Minimal State. J Value Inquiry 55, 57–85 (2021). https://doi.org/10.1007/s10790-020-09738-1
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DOI: https://doi.org/10.1007/s10790-020-09738-1