## 1. Nozick's Life and Times



Robert Nozick was born in Brooklyn in 1938 to a Russian Jewish
immigrant family. He earned an undergraduate Philosophy degree from
Columbia University in 1959 and a Ph.D. in Philosophy from Princeton
University in 1963. He taught for a couple of years at Princeton,
Harvard, and Rockefeller Universities before moving permanently to
Harvard in 1969. He became widely known through his 1974 book,
*Anarchy, State, and Utopia*, which shocked the philosophical
world with its robust and sophisticated defense of the minimal
state--the state that restricts its activities to the protection
of individual rights of life, liberty, property, and contract and
eschews the use of state power to redistribute income, to make people
moral, or to protect people from harming themselves. Nozick went on to
publish important works that ranged over metaphysics, epistemology,
the philosophy of science, and axiology--*Philosophical
Explanations* (1981), *The Examined Life* (1989), *The
Nature of Rationality* (1993), *Socratic Puzzles* (1997),
and *Invariances* (2001). Nozick's always lively,
engaging, audacious, and philosophically ambitious writings revealed
an amazing knowledge of advanced work in many disciplines including
decision theory, economics, mathematics, physics, psychology, and
religion. Robert Nozick died in 2002 from stomach cancer for which he
was first treated in 1994.



As an undergraduate student at Columbia and at least in his early days
as a graduate student at Princeton, Nozick endorsed socialism. At
Columbia, he was a founder of what was to become the local chapter of
Students for a Democratic Society. The major force in his conversion
to libertarian views was his conversations at Princeton with his
fellow philosophy graduate student, Bruce Goldberg. It was through
Goldberg that Nozick met the economist Murray Rothbard who was the
major champion of "individualist anarchism" in the later
decades of the twentieth century (Raico 2002, Other Internet
Resources). Nozick's encounter with Rothbard and
Rothbard's rights-based critique of the state (Rothbard 1973 and
1978)--including the minimal state--lead Nozick to the
project of formulating a rights-based libertarianism that would
vindicate the minimal state. There is, however, an intriguing lacuna
in this story. Goldberg himself and the economists whose writings are
often said to have influenced Nozick's conversion to
libertarianism--F.A. Hayek and Milton Friedman--were not at
all friends of natural rights theory. So, we have no account of why
the libertarianism that Nozick himself adopted came in the form of
natural rights theory (and an associated doctrine of acquired property
rights).



This account of the political philosophy of Robert Nozick is
fundamentally an account of the rights-oriented libertarian doctrine
that Nozick presents in *Anarchy, State, and Utopia*. That
doctrine is *the* Nozickean
 doctrine.[2]
 Nozick never attempted to further develop the views that he expressed
in
 *ASU*,[3]
 and he never responded to the extensive critical reaction to those
views. Nozick did seem to repudiate at least some aspects of the
*ASU* doctrine in *The Examined Life* and *The Nature
of Rationality* (Nozick 1989: 286-296). Nozick's real
or apparent repudiation in these works turned on his doctrine of
symbolic utility which cannot be examined
 here.[4]
 At later yet points in his life Nozick downplayed his apparent
repudiation of political
 libertarianism.[5]
 In a 2001 interview, he said:



> 
> 
> ... the rumors of my deviation (or apostasy!) from libertarianism
> were much exaggerated. I think [*Invariances*] makes clear the
> extent to which I still am within the general framework of
> libertarianism, especially the ethics chapter and its section on the
> "Core Principle of Ethics". (Sanchez 2001, Other Internet
> Resources)
> 
> 
> 



According to that chapter, there are a number of layers of ethics. The
first of these is the ethics of respect which consists of a set of
negative rights. This layer and only this layer may be made mandatory
in any society. "All that any society should (coercively) demand
is adherence to the ethics of respect" (Nozick 2001: 282).



There are four main topics that most deserve discussion with respect
to *Anarchy, State, and Utopia*. They are: (1) the underpinning
(if any) and the character and robustness of the moral rights that
constitute the basic normative framework for most of *Anarchy,
State, and Utopia*; (2) the character and degree of success of
Nozick's defense of the minimal state against the charge by the
individualist anarchist that "the state itself is intrinsically
immoral" (*ASU* 51); (3) Nozick's articulation and
defense of his historical entitlement doctrine of justice in holdings
and his associated critique of end-state and patterned doctrines of
distributive justice, especially John Rawls' difference
principle (as defended in *A Theory of Justice*); and (4)
Nozick's argument that utopian aspirations provide a
complementary route to the vindication of the minimal state. Our
discussion of the first two topics focuses on Part I of *ASU*,
entitled "State-of-Nature Theory or How to Back into a State
without Really Trying". Our investigation of the third topic,
the historical entitlement doctrine of just holdings and competing
conceptions of distributive justice, focuses on chapter 7,
"Distributive Justice" of Part II of *ASU*,
"Beyond the Minimal State?" Our discussion of the fourth
topic, the utopian route to the minimal state, focuses on chapter 10,
"A Framework for Utopia", which is the whole of Part III
of *ASU*, "Utopia". Focusing on these four core
topics leaves aside many of Nozick's rich and intriguing side
discussions.


## 2. Moral Rights and Side-Constraints



*Anarchy, State, and Utopia* opens with the famously bold claim
that "Individuals have rights, and there are things no person or
group may do to them (without violating their rights)" (ix).


### 2.1 State of Nature Rights



These moral rights are understood as state of nature rights. That is,
they are rights that precede and provide a basis for assessing and
constraining not only the actions of individuals and groups but also
the conduct of political and legal institutions. These rights also
precede any social contract; they morally constrain the conduct of
individuals, groups, and institutions even in the absence of any
social contract. In Locke's language, these rights constitute a
law of nature--or an especially important part of a law of
nature--that governs the pre-political and pre-contractual state
of nature (Locke 1690: *Second Treatise* SS6).



Moreover, to possess such a right is not merely to be in some
condition the promotion or maintenance of which is socially expedient.
Part of the message of that opening proclamation is that there are
certain things that may not be done to individuals even if, by some
standard, they are socially optimizing. The rights that individuals
have are moral bulwarks against behavior that promotes even the most
radiant--or apparently radiant--social end. In addition,
these state of nature moral rights are taken to be negative. They
specify types of conduct that may not be done to individuals rather
than types of conduct that must be done for people.



Finally, since these rights are not granted by institutions, created
by any contractual process, or accorded to individuals for the sake of
advancing some optimal social outcome, if they have any foundation,
that foundation must consist in some morally impressive fact about the
nature of individuals *qua* individuals. Some morally
impressive fact about the nature of individuals--e.g., that they
each have ends or projects of their own to which they rationally
devote themselves--must provide others with reason to not treat
them certain ways, e.g., as beings who ought to serve the ends of
others. We shall see that Nozick advances a claim of this sort in his
account of why agents should abide by moral side-constraints in their
conduct toward others.



Recourse to the familiar distinction between claim-rights and
liberty-rights will enable us to be somewhat more precise about the
state of nature rights that Nozick ascribes to each individual.
Liberty-rights are absences of obligations. You have a liberty-right
to scratch your nose as long as you have no obligation not to.
Claim-rights are moral (and enforceable) claims against others to
their acting or not acting in certain ways. You have a claim-right
against others not to be interfered with in the scratching of your
nose if and only if others have an (enforceable) *obligation*
not to interfere with you in this way. Standardly, when we speak of
rights we are speaking of composites of liberty-rights and
claim-rights. For instance, standardly, your right to scratch your
nose consists in your having no obligation not to do so and others
having (enforceable) obligations not to interfere with your doing so.
Your moral liberty to scratch your nose is morally protected by your
(enforceable) claim against others that they not interfere with your
doing so.



When Nozick asserts that individuals possess pre-political,
pre-contractual moral rights against certain things being done to
them--even for the sake of ends that are or purport to be
socially optimal--he is most obviously ascribing claim-rights to
individuals correlative to which are pre-political and pre-contractual
moral *obligations* of each agent *not* to do certain
things to other individuals. Since, all state of nature obligations
(that are rights-correlative and, hence, enforceable) are negative, in
the state of nature individuals are morally at liberty to engage in
*any* conduct that does not transgress others' state of
nature claim-rights. Thus, Nozick's opening proclamation of
rights affirms for each individual extensive
liberty-rights--extensive freedom from obligations, especially
positive obligations--that are systematically protected against
interference by moral claim-rights. It needs to be mentioned that
these moral rights are taken to be people's baseline rights;
they are rights that are subject to contraction or expansion through
an individual's actions and interactions. So, e.g., although
each individual has a natural right against all others not to be
struck in her nose, each may waive that right by agreeing to take
place in a boxing match, and each may acquire a liberty-right to
strike the other party to the boxing contract.


### 2.2 The Foundation of Rights



It is a commonplace to say that in *ASU* Nozick provides no
foundation for his affirmation of such Lockean natural rights (Nagel
1975). And, not many pages after Nozick proclaims these rights, he
himself points out that his book provides no "precise theory of
the moral basis of individual rights" (xiv). Nevertheless,
Nozick does have important things to say about the underpinning of
these rights and about their deontic character and their stringency.
Indeed, it is striking that, when Nozick seeks to motivate his opening
affirmation of rights, he starts with the same understanding and
critique of utilitarianism that Rawls offers in *A Theory of
Justice* when Rawls begins to motivate his contractarian doctrine.
What separates Nozick from Rawls at this very basic level is a
difference in their construal of the implications of this common
critique. Nozick may, in this way, offer as much of a foundation for
adopting his natural rights stance as Rawls offers in *A Theory of
Justice* for adopting his contractarian stance.



As is well known, Rawls starts by ascribing to the utilitarian the
claim that the rationality of a certain principle of social choice can
be inferred from the rationality of a certain principle of individual
choice. The principle of individual choice is that, at least if no
other party is affected, it is rational for an individual to incur
costs for herself (or to forego benefits for herself) if doing so will
spare her greater costs (or provide her with greater benefits).
According to Rawls, the utilitarian holds that by parity of reasoning
it is rational for a member of society to incur costs for herself (or
to forego benefits for herself) if doing so will spare *any*
member of society greater costs (or provide *any* member of
society with greater benefits). This is the purported rational
principle of social choice. Thus, we get to the utilitarian conclusion
that each agent as a member of society has reason to maximize the
aggregate social good even at the expense of the individual good of
herself (or others).



As is also well-known, Rawls rejects this reasoning on the grounds
that it does not take seriously the separateness and distinctness of
persons. Persons are markedly more separate and distinct from one
another than are the different phases or time-slices of a given
person's life. Because of this, one cannot proceed from its
being worthwhile for a given person to incur costs for herself in
order to spare herself greater costs to its being worthwhile for a
given person as a member of society to incur costs for herself in
order to spare any member of society greater costs. According to
Rawls, only if we conflate individuals--only if we mistakenly
conceive of them as parts of a single person-like being, will the
utilitarian principle of social choice be on a par with the principle
of individual choice (Rawls 1971: 26-7).



Rawls summarizes his primary case against utilitarianism by
saying,



> 
> 
> ... if we assume that the correct regulative principle for
> anything depends on the nature of that thing, and the plurality of
> distinct persons with separate systems of ends is an essential feature
> of human societies, we should not expect the principles of social
> choice to be utilitarian. (Rawls 1971: 29)
> 
> 
> 



This summation goes well beyond the dismissal of the utilitarian
regulative principle. For it strongly suggests a criterion for
identifying the correct regulative principle (or set of principles)
for the governance of social interaction. Such regulative principles
must differ significantly from the utilitarian principle by being
responsive to or reflective of the plurality of distinct persons with
separate systems of ends. We should note here that what is crucial is
not the bare normatively neutral fact that individuals have separate
systems of ends but, rather that individuals rationally seek to
promote their own ends. It is the rational propriety of each
person's pursuit her own good that basic regulative principles
need to be responsive to or reflect. Rawls then offers his crucial
contractarian construal of how regulative principles qualify as being
responsive to or reflective of the plurality of persons. According to
Rawls, they so qualify by being principles that all individuals
concerned with the promotion of their own systems of ends would agree
to under circumstances suitable for such agreement.



It is striking that Nozick proceeds through a highly similar critical
treatment of utilitarianism when he asks why persons may not be
violated for the greater social good.



> 
> 
> Individually, we each sometimes choose to undergo some pain or
> sacrifice for a greater benefit or to avoid a greater harm... In
> each case, some cost is borne for the sake of the greater overall
> good. Why not, similarly, hold that some persons have to bear some
> costs that benefit other persons more, for the sake of the overall
> social good? (*ASU* 32)
> 
> 
> 



Nozick's response to this question is,



> 
> 
> But there is no *social entity* with a good that undergoes some
> sacrifice for its own good. There are only individual people,
> different individual people, with their own individual lives. Using
> one of these people for the benefit of others, uses him and benefits
> the others. Nothing more. What happens is that something is done to
> him for the sake of others. Talk of an overall social good covers this
> up. (32-3)
> 
> 
> 



Here Nozick makes things too easy for himself by ascribing to the
utilitarian a belief in a social entity--as Rawls makes things
too easy for himself by saying that the utilitarian argument depends
on fusing or conflating persons. For the utilitarian may simply hold
that the best explanation for the rationality of a given person
incurring some cost for herself in order to avoid some greater cost
for herself is the unrestricted rationality of minimizing net costs
(or maximizing net benefits). According to this utilitarian, we do not
have to move from the principle of individual choice to the principle
of social choice. For, we start with the unrestricted rationality of
minimizing costs (or maximizing benefits); and the principle of
individual choice is simply the application of that principle of
social choice to the special case in which there is only one agent who
is also the one subject of benefits and costs.



To counter the contention that, at the outset, practical rationality
calls for the minimization of net costs (or the maximization of net
benefits), Rawls and Nozick need to hold that what makes it
practically rational for a given individual to incur some cost *to
herself* (or forego some benefit *for herself*) is the
avoidance of some greater cost *to herself* (or the attainment
of some greater benefit *for herself*). They need to hold that
(at least absent further argument) the rational balancing of costs
incurred (or benefits foregone) and costs avoided (or benefits
attained) must take place *within* lives and *not
across* lives. And this does seem to be part of the intended force
of Rawls' invocation of a "plurality of distinct persons
with separate systems of
 ends"[6]
 and of Nozick's insistence that there are "only
individual people, different individual people, with their own
individual lives" (33). In Nozick this stance is most explicit
when he parses "the fact of our separate existences"
as,



> 
> 
> ... the fact that no moral balancing act can take place among us;
> there is no moral outweighing of one of our lives by others so as to
> lead to a great overall social good. There is no justified sacrifice
> of some of us for others. (33)
> 
> 
> 



Note, however, that this last sentence is ambiguous. It may mean
simply that there is no moral balancing across individuals that
requires individuals to sacrifice for others or that justifies others
in imposing such sacrifices. However, that sentence may also mean that
"no one may be sacrificed for others" (33) in the sense
that those who impose such sacrifices *wrong* the individuals
who are subjected to those losses. That is, it may also mean that
there is (in Rawls' terminology) a "correct regulative
principle" that forbids and condemns the imposition of such
sacrifices. It is clear that Nozick intends to assert this further
claim even though he does not explicitly recognize that it is a
further and distinct proposition. For, according to Nozick, one will
not "sufficiently respect and take account of the fact that he
[i.e., any given individual] is a separate person, that his is the
only life he has" (33) unless one morally condemns and eschews
uses of that person--in particular, impositions of losses on that
person for the sake of (what purports to be) the social good.



The "fact of our separate existences" is "the fact
that that no moral balancing act can take place among us"
(because costs and benefits add up within persons' lives and not
across them). In contrast, the further fact that there are moral
side-constraints against imposing sacrifices on some to serve the
interests of others is *a reflection of* the "fact of our
separate existences". We come to the affirmation of those
side-constraints when we sufficiently respect and take account of the
separateness of
 persons.[7]
 This is what Nozick must mean when he says that "The moral side
constraints upon what we may do... reflect the fact of our
separate existences" (33). The fact of our separate
existences--as Nozick parses that fact--is the morally
impressive fact about the nature of individuals that provides us with
reason to be circumspect in our conduct toward one another. We respect
or honor others as agents with rational ends of their own not by
promoting their ends as we do our own but, rather, by not sacrificing
them to our ends.



If correct regulative principles for social interaction must
sufficiently respect and take account of the plurality of distinct
persons with separate systems of ends, those regulative principles
must not treat persons as means for the attainment of any (putatively)
choice-worthy social outcome. Regulative principles that endorse the
use of persons for the sake of (purportedly) choice-worthy social
outcomes--e.g., the social outcome of there being a choice-worthy
distribution of goods among individuals--too much resemble the
utilitarian regulative principle. They share the failure of the
utilitarian principle to sufficiently respect and take account of the
plurality of distinct persons with separate systems of ends. Thus,
Nozick contends, correct regulative principles must take the form of
moral side constraints upon what may be done to individuals even for
the sake of really valuable, choice-worthy social outcomes. Rawls
reads the willingness of utilitarianism to impose losses on
individuals for the sake of the aggregate good as a mark of
utilitarianism's failure to recognize the status of individuals
as ends-in-themselves and not merely means to the ends of others.
Nozick follows suit in appropriating this Kantian language (see Cohen
1995: 238-243). But, contrary to Rawls, Nozick maintains that
the endorsement of the imposition of sacrifices on individuals for the
sake of *any* (non-trivial) conception of the social
good--even, e.g., distribution-sensitive conceptions of the
social good--fails to recognize the status of individuals as
 ends-in-themselves.[8]



So, Nozick offers very much the same type of argument for the
existence of *some* correct regulative principle for social
interaction as Rawls does in *A Theory of Justice*. The
difference is that Nozick does not hold that the mark of principles
being responsive to or reflective of the fact of our separate
existences is that they would be agreed to by everyone under suitable
agreement circumstances. Rather, he supposes that we can identify
types of treatment of persons as not sufficiently respecting and
taking account of the rationality of individuals pursuing of their own
good without having to appeal to any actual or hypothetical agreement.
In particular, the imposition of sacrifices upon individuals does not
sufficiently take account of their being agents who rationally pursue
their own systems of ends. The key "moral content gotten by this
argument which focuses upon the fact that there are distinct
individuals each with his own life to lead" is that
"sacrificing one person to benefit another" is morally
prohibited (34).


### 2.3 Rights as Side Constraints



For Nozick, a paradigmatic natural moral right is the right not to be
subjected to (unprovoked) killing. Correlative to this right is the
moral side constraint to which all individuals are naturally subject
not to engage in the (unprovoked) killing of others. As Nozick
understands this right, it forbids *A*'s (unprovoked)
killing of *B* even if *A* can prevent *W* from
killing *X*, *Y*, and *Z* only by killing
*B*. Although it *may* in some sense be *less
bad* for *B* to be killed than for *X*, *Y*,
and *Z* to be killed, *A* remains bound not to kill
*B*. *A* may not prevent the wrong that *W* will
do in killing *X*, *Y*, and *Z* by killing
*B*. For Nozick, rights express the moral inviolability of
individuals; and *B* would not be morally inviolable--nor
would any of us be--were *B* open to use by *A*
even for the purpose of preventing the violation of the rights of
*X*, *Y*, and *Z*. Not even the minimization of
the violation of the right against being killed can justify the
violation of that right.



According to Nozick, our core reason for abstaining from murder is not
that abstention advances the goal of minimizing murders. Indeed, if
that were our reason to eschew murder, *A* should not eschew
murdering *B* if that is the only way that he can prevent
*W* from murdering *X*, *Y*, and *Z*.
Rather, Nozick's deontological claim is that the status that
each individual has as an end-in-himself morally constrains each other
agent's conduct toward those individuals. Both *A* and
*W* are morally precluded from the (unprovoked) killing of
*B*, *X*, *Y*, and *Z* (and of each
other). *W* triply violates this side constraint when he kills
*X*, *Y*, and *Z*; but *A* *abides
by* this constraint only if he abstains from killing
*B*--even if *A*'s killing of *B*
would (somehow) prevent *W*'s killing of *X*,
*Y*, and *Z*.



It is often thought that there is something paradoxical about
deontological propositions like the assertion that everyone is bound
to abstain from the (unprovoked) killing of
 others.[9]
 This thought rests on two standard consequentialist ideas. The first
is that the wrongness of a given sort of action--e.g.,
(unprovoked) killing--must derive from the badness of the
(typical) consequences of actions of that sort. The second is that the
badness of the consequences of multiple actions of a given sort can be
aggregated so that (typically) the total badness of the results of a
bunch of wrongful actions of that sort will be greater than the
badness of the results of one action of that sort. For example, the
total badness associated with *W*'s (unprovoked) killings
of *X*, *Y*, and *Z* will (typically) be greater
than the badness associated with *A*'s (unprovoked)
killing of *B*. It follows that it will (typically) be wrong
for *A* to abstain from killing *B* if that is the only
way to prevent *W*'s (unprovoked) killings of *X*,
*Y*, and *Z*. The supposed paradox is that the
wrongfulness of (unprovoked) killing must rest on the badness of the
(typical) results of such killings; but recourse to the badness of
results in the assessment of actions (typically) leads to the
endorsement of (unprovoked) killings in precisely those cases in which
the advocate of deontic constraints wants to insist upon their
wrongfulness. However, the construction of this paradox of deontology
rests firmly upon ideas that, as we have seen, Nozick has rejected on
his way to asserting deontic side constraints.



Nozick also provides a further and seemingly more conventional
discussion of the bases for moral constraints in which various lofty
capacities that human beings (usually) possess or are thought to
possess are cited. He mentions being



> 
> 
> [S]entient and self-conscious; rational (capable of using abstract
> concepts, not tied to responses to immediate stimuli); possessing free
> will; being a moral agent capable of guiding its behavior by moral
> principles and capable of engaging in mutual limitation of conduct;
> having a soul. (48)
> 
> 
> 



To these he adds "the ability to regulate and guide its life in
accordance with some overall conception it chooses to accept"
(49). But, does the presence of these non-moral features underwrite
moral constraints against preventing individuals from exercising these
capacities in their own chosen ways? Nozick seeks to bolster the
significance of these features by contending that a person can give
meaning to his life only by exercising these capacities in accordance
with some overall plan of his own (50). The suggestion is that it is
not meaningfulness at large that is crucial for each individual but,
rather the meaningfulness for him of the life that arises through his
exercise of an overall plan for his
 life.[10]
 However, Nozick then asks



> 
> 
> why not replace 'happiness' with
> 'meaningfulness' within utilitarian theory, and maximize
> the total 'meaningfulness' score of the persons in the
> world? (50)
> 
> 
> 



This is surprising. For one would expect that, in accord with his
separateness of persons argument, Nozick would say that the import of
each individual having a meaningful life as his end is not a
utilitarianism of meaningful lives but, rather, side constraints on
interference with each individual's pursuit of a meaningful life
of his own. As Bader points out, for Nozick,



> 
> It is not the case that living a meaningful life is the goal that is
> to be achieved and that rights are the means that permit us to attain
> this goal. Rather, it is in virtue of the fact that human beings are
> agents whose lives can have meaning that we need to respect their
> choices, that we have to let them decide how to live their lives.
> (Bader 79-80)
> 


### 2.4 The Attenuation of Rights



Nozick's account of rights takes a surprising turn in his very
complex chapter 4 on "Prohibition, Compensation, and Risk"
(Mack 1981). Employing the language of rights as moral boundaries,
Nozick asks whether all actions that cross boundaries may be
prohibited, i.e., may permissibly be
 punished.[11]
 His unexpected answer is that not all boundary crossings may be
prohibited. Some boundary crossings are to be allowed--without
the consent of those subject to them--as long as due compensation
is paid to those subjects. Nozick's presumption *within this
chapter* is that it does not *follow* from
*B*'s having a right against *A* to
*A*'s not inflicting treatment *T* on *B*
that *A*'s inflicting *T* on *A* may be
prohibited (59). All that *follows* from *B*'s
having that right is that *A* may not inflict *T* on
*B* unless *A* also duly compensates
 *B*.[12]
 All that *follows* is that *B* has a claim against
*A* that *A*'s infliction of *T* on
*B* not leave B's utility or welfare on net
diminished.



We can describe Nozick's position here by utilizing the now
common distinction between claims that are protected by property rules
and claims that are protected by liability rules (338n6). One's
claim with respect to some object *O* is protected by a
property rule if one must be allowed to do as one sees fit with
*O*--as long as one abides by the applicable side
constraints. Others may not deprive one of one's choice with
respect to *O*--even if they also compensate one for the
utility or welfare loss of being precluded from doing as one sees fit
with *O*. In contrast, one's claim with respect to
*O* is merely protected by a liability rule if others may
determine (without one's consent) what is done with *O*
as long as they duly compensate one for the associated utility or
welfare loss. In chapter 4, Nozick's presumption seems to be
that all that *follows* from one's having a right is that
one has a claim that is protected by a liability rule.



Of course, it may be impossible or severely difficult for *A*
to duly compensate *B* for inflicting treatment
*T*--as when *T* consists in killing *B*.
Moreover, if it is impossible or severely difficult for *A* to
duly compensate *B* for a given boundary crossing, *A*
must not cross that boundary without *B*'s consent. The
*conjunction* of the liability rule claim and the impossibility
or difficulty of due compensation yields (the equivalent of) a
property rule claim for *B* against *A*'s imposing
*T* on *B*. The further conditions that render due
compensation impossible or difficult boost what would otherwise merely
be a liability rule claim against being subject to *T* into
(the equivalent of) a property rule claim against being subject to
*T.* As we see in the next section, Nozick thinks that such
boosting conditions are pervasive. So, one of the things that Nozick
is suggesting in his intricate chapter 4 is that, even the
separateness of persons in itself only underwrites claims protected by
liability rules, those claims need to be treated as though they are
protected by property rules whenever due compensation for infringing
upon them would be impossible or not feasible.



Perhaps, we ought not to be too surprised by Nozick's chapter 4
presumption that in themselves rights are merely claims that are
protected by liability rules. For recall the crucial role ascribed to
natural rights within Nozick's separateness of persons argument.
That role is to provide individuals with moral protection against
having sacrifices (i.e., net losses) imposed upon them. All that
rights must do in order to play *this* role is to require that
all boundary-crossings be accompanied by due compensation (and that
they not be done if the provision of due accompanying compensation is
not feasible).



However, Nozick's focus on rights having the role of protecting
individuals from net losses being imposed upon them raised concerns
for him about whether invocations of rights would deliver the strong
anti-paternalism that he
 favored.[13]
 If rights are in themselves merely claims against having one's
utility or welfare on net lowered by certain interferences, then one
will have no right against interferences that on net raise one's
utility or welfare. Arguments that "will prohibit sacrificing
one person to benefit another" will not themselves deliver
"a prohibition on paternalist aggression" (34). Rights
against paternalist interventions that really do serve interests of
the paternalized party must protect the choices of that
party--even choices that will lower her utility or welfare.



Moreover, the view that rights in themselves are claims protected by
liability rules does not comport well with the overall tone of
*Anarchy, State, and Utopia*. Nozick does not begin this work
by declaring that there are things that may not be done to individuals
*unless, of course, they are duly compensated*. Nor does the
liability rule construal of rights fit well with Nozick's
affirmation of the inviolability of individuals, the Kantian claim
that individuals "may not be sacrificed *or used* for the
achieving of other ends *without their consent*" (31,
emphasis added), or the moral sovereignty of individuals (34). Indeed,
at one point Nozick himself says that "a system permitting
boundary crossing, provided compensation is paid, *embodies the use
of persons as means*..." (71, emphasis added). It
embodies the use of persons as means because it allows such use as
long as the utility or welfare of the used party is not on net
diminished. The provision of due compensation may counteract the
imposed loss of utility or welfare; but it does not counteract the
wrong of the use.



In the next section, we shall focus on Nozick's use of this
liability rule attenuation of rights in his response to the anarchist.
We should note, however, that after disposing of the anarchist Nozick
reverts to the more robust property rule understanding of rights.
Thus, in chapter 7, on "Distributive Justice", Nozick says
that,



> 
> 
> The central core of the notion of a property rights in *X*
> ... 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. (171)
> 
> 
> 



To have a right in *X* is to have a claim protected by a
property rule. Others' interference with one's doing as
one sees fit with *X* is impermissible--even if one is
duly compensated for imposed utility or welfare losses. And Nozick
goes on to extend this property rule construal to people's
rights in themselves and their labor.



> 
> 
> This notion of property helps us understand why earlier theorists
> spoke of people as having property in themselves and their labor. They
> viewed each person as having a right to decide what would become of
> himself and what he would do... (171)
> 
> 
> 



Indeed, in chapter 7, Nozick argues that seizing the fruits of a
person's labor is impermissible because this involves taking the
time that this person devoted to this labor without that
person's consent. There is no hint that the taking of that time
without that party's consent would be permissible if only that
party were duly compensated. There is no hint that the requirement
that this individual consent to any taking depends upon due
compensation for such a taking being impossible or severely
difficult.



We should also note that this passage about earlier theorists speaking
of people as having property in themselves is the closest Nozick ever
comes to formulating his own position in terms of a doctrine of
*self-ownership*. Contrary to common presentations of
Nozick's doctrine, there is no mention of self-ownership within
his Part I discussion of state of nature
 theory.[14]
 Throughout Part I, Nozick is content to have his readers fill in the
content of moral side constraints by drawing on their intuitions that,
if there are any moral side constraints, they must include constraints
against (unprovoked) killing, assaulting, maiming, enslaving. There
is, at most, a hint that all of these constraints can be subsumed
under a general constraint against aggression (34). (It seems,
however, that aggression itself requires explication on the basis of a
prior and independent specification of persons' rights.)



Overall, Nozick maintains that there is something about the
separateness of persons--something about the propriety of each
seeking his own good in his own chosen way--that does not merely
undermine the view that individuals should sacrifice themselves (and
others) for the social good. Beyond that undermining, the separateness
of persons positively supports each individual's possession of
fundamental, broad, natural, and negative moral claims that hold
against all other agents. What Nozick needs is a more clearly
articulated and persuasive transition from each individual having ends
of his own that he is rational to pursue (and, hence, there being no
proper moral balancing across persons) to each individual having a
moral status *vis-a-vis* others that provides others
with reason not to interfere with his chosen pursuits even in ways
that would be on net beneficial to that individual. Nozick provides
material that is suggestive of this transition but certainly not a
compelling case for it. Nozick also fails to address the hard question
of why--except perhaps to avoid "catastrophic moral
horror" (29 footnote\*)--rights always trump considerations
of personal or social well-being.



On the other hand, it would certainly be unfair to Nozick to insist
that there be one or a few core foundationalist arguments on which all
of the rest of his doctrine firmly rests. It is clear that Nozick
thinks that the coherence that obtains among the stances he develops
within *ASU* enhances the plausibility of each of those
stances. For instance, while his historical entitlement theory of
justice in holdings is largely grounded in his critique of alternative
conceptions of economic justice, Nozick takes the coherence between
this theory with his affirmation of basic moral side constraints to
increase the plausibility of his doctrine as a whole. Similarly,
Nozick takes the coherence of his rights based defense of the minimal
state in Part I of *ASU* with his less moralistic defense of
the minimal state as a framework for utopia in Part III to enhance the
overall case for the minimal
 state.[15]


## 3. The Minimal State versus Individualist Anarchism



The official purpose of Part I of *ASU* is to rebut the
individualist anarchist's claim that no state, not even the
minimal, nightwatchman, state can be
 justified.[16]
 In this way, Part I is devoted to what Nozick takes to be the
fundamental question of political philosophy, viz., "whether
there should be any state at all" (4). Nozick seeks to counter
the anarchist's claim by showing how a minimal
state--essentially a state that is limited to the protection of
the rights of person, property, and contract--could arise without
violating rights. At a later point within this section, we shall have
to consider why Nozick focuses upon whether a minimal state could
*arise* without violating rights rather than whether a minimal
state could *function* without violating rights.


### 3.1 The Challenge of Individualist Anarchism



Nozick expects that it will take a considerable effort to answer the
individualist anarchist precisely because this form of anti-statism is
itself rooted in the moral rights that Nozick proclaims. Indeed,
immediately following his ascription to individuals of pre-political,
pre-contractual, negative moral rights Nozick tells us that these
rights may so extensively limit the permissible use of force that no
room is left for a morally acceptable state.



> 
> 
> So strong and far-reaching are these rights that they raise the
> question of what, if anything the state and its officials may do. How
> much room do individual rights leave for the state? (ix)
> 
> 
> 



To be clear about Nozick's response, we first need to be clear
about what alternative structure for the protection of rights is
envisioned by the individualist anarchist. Second, we need to clearly
identify the precise challenge that Nozick needs to overcome.



First, then, Nozick and the individualist anarchist agree that it is
one thing for individuals to have rights and another thing for them to
have rights to the protection of their rights. It is one thing to have
a right against others that they not aggress against one; it is
another thing to have rights against others that they protect one
against aggression. Being a positive right, the right to protection
against violations of one's rights must arise through some
special interaction between the agent who acquires the right and the
agent who acquires the correlative obligation. The most common kind of
special interaction that gives rise to one agent having a positive
right against another is contract. However, the individualist
anarchist and Nozick agree that there has never been any general
social contract whereby individuals at large acquire from one another
positive rights to the protection of their pre-contractual rights.
And, "... tacit consent isn't worth the paper
it's not written on" (287). Hence, if people are to
acquire rights to have their rights protected, they must (at least for
the most part) go shopping for them.



Moreover, the individualist anarchist asserts--and Nozick is
strongly disposed to agree--that shoppers for any sort of service
will do best when there is a competitive market in the supply of that
sort of service. Competition among good-willed providers of the
service of rights protection will induce lower prices and/or higher
quality rights protection--including protection against
"outlaw" agencies that seek to assist or protect rights
violators. The interest of good-willed purchasers of rights protection
in non-violent dispute resolution will press competing suppliers of
rights protection to join in agreements that more sharply define the
boundaries of their clients and establish procedures for resolving
disputes among them. Any protective agency that is not part of a
network of established conflict diminishing agreements and resolution
procedures will be at a huge competitive disadvantage. Nozick refers
to the resulting network as the dominant protective association; and
he treats the question of whether the minimal state can arise without
violating rights as a matter of whether such a dominant protective
association can develop into a minimal state without violating
rights.



Second, anarchists like Rothbard assert that the creation and
maintenance of even the minimal state will violate rights in two
fundamental ways. First, even the minimal state will arise through and
sustain itself through imposed taxation. Second, even the minimal
state will arise through and sustain itself through the coercive
suppression or control of competing protective agencies. However, the
minimal state that Nozick seeks to defend is simply not subject to the
first of these challenges. For, despite some ill-chosen language that
suggests the contrary (26-7), Nozick's minimal state does
not impose taxation--even to fund its rights protective
 activities.[17]
 Nozick's minimal state does prohibit individuals who interact
with its clients from becoming clients of competing agencies (that are
not subject to supervision and constraint by the minimal state).
However, it does not require anyone to subscribe to its services.
Principled anarchists and even individuals who hope to free-ride on
the minimal state's overall suppression of rights
 violations[18]
 are morally at liberty to take their chances.



However, to be a *state*--even a minimal state--an
institution has to have some sort of monopoly on the use of coercive
force over a sufficiently large territory or set of people. To rise to
statehood within a given territory or with respect to a set of people,
a protective agency must fairly successfully fulfill its aspiration to
be the suppressor of other actors who seek to engage in rights
violating force and (at least) to be the controller of other actors
who seek to engage in rights protecting force. Hence, to rise to
statehood, a protective agency must either shut down or exercise
substantial control over other *non-outlaw* agencies. In short,
it seems that it must act toward its non-outlaw competitors in ways
that Nozick would declare to be impermissible among competitors in the
delivery of any other sort of service. Nozick must attempt to meet the
anarchist's second challenge by arguing that the dominant
protective agency's establishment of a monopoly in protective
services differs markedly from the standard suppression or control of
competitors.


### 3.2 Response to the Anarchist Challenge



Before considering how and how successfully Nozick meets this
challenge, we need to take note of a questionable preliminary move on
his part. When Nozick mentions the agreements that competing agencies
would enter into in order to assure their prospective clients smooth
and non-violent dispute resolution, he speaks of the emergence of
"a system of appeals courts and agreed upon rules of
jurisdiction and the conflict of laws". He acknowledges that the
emergence of this system allows for the continued operation of
"different agencies". Yet he then says that the result is
"one unified federal judicial system of which they [presumably
the various agencies] all are components" (16). On the basis of
this description of the outcome of the networking process Nozick
allows himself to speak of the rise of *a* dominant protective
association that is united and federal.



This language seems to paper over the continued existence of
"different agencies" which may well compete with one
another not merely in terms of prices but also in terms of the
packages of protective services they offer in response to diverse
consumer demand for such services. So Nozick faces a problem even if
he succeeds in showing that the *confederation* of agencies
that emerges from such networking may permissibly eliminate its
non-outlaw competitors. For, there may still be too much competition
*among the confederates* that make up the dominant association
for it to qualify as a state (Childs 1977 and Mack 1978).



Putting that initial problem aside, one possible way for Nozick to
meet the anarchist's challenge is to maintain that the dominant
protective association will eliminate its competitors *without*
using coercive force. Perhaps something about the production and
delivery of rights protection makes that enterprise a *natural*
monopoly. Nozick seems to be pursuing this route when he asks and
answers the question, "Why would a virtual monopoly arise in
this market without the government intervention that elsewhere creates
and maintains it?" (17). His answer is that the value of the
protective services offered by any agency will increase with the size
of its clientele--presumably because disputes among clients of
the same agency will be more cheaply or readily resolved than disputes
among clients of competing agencies. So, clients of competing agencies
will migrate to the dominant association and that migration will
increase the incentive for yet others to follow the same
 path.[19]



However, this claim about the propensity for "virtual"
monopoly to arise within the rights protection business is only
intended by Nozick to explain the emergence of a dominant protective
association; it is not intended to explain that association's
permissible suppression or control of its remaining non-outlaw
competitors. Nozick accepts the anarchist contention that, for an
agency to rise to or sustain itself as a state, it must suppress or
control actual (or potential) non-outlaw competitors. To meet the
anarchist's challenge, Nozick sets out to show how the dominant
association's suppression or control of non-outlaw competitors
is not a violation of the rights of those competitors--even
though they are non-outlaws.



Nozick's case relies upon the surprising attenuation of rights
that we noted in the previous section, viz., the idea that in
themselves rights are claims that are protected by liability rules.
Absent further conditions that make due compensation for infringements
impossible or severely difficult, rights are merely claims to be duly
compensated for losses imposed by certain interferences. Given this
construal of rights, the basic structure of Nozick's response to
the anarchist is quite simple. The rights of non-outlaw protective
agencies (and non-outlaw independent self-protectors) to engage in
their chosen procedures are merely claims that are protected by
liability rules. Hence, those procedures may be interfered with as
long as those subject to this interference are duly compensated. The
anarchist is correct in saying that these non-outlaw agencies and
individuals have rights against being interfered with; but he is
mistaken in thinking that these rights forbid that interference.



Of course, a further premise is needed for this argument. This is that
it will not be impossible or severely difficult to duly compensate
those non-outlaw agencies and individuals for interference with their
own protective activities and, hence, their claims against such
interference do not acquire the force of claims protected by property
rules. (If the claims do acquire that force, the anarchist correctly
condemns the dominant association's interference with those
agencies or individuals.) To support this further premise, Nozick
needs to survey the conditions that do made it impossible or severely
difficult to supply due compensation for boundary crossings. A
boundary will have the force of a claim protected by a property rule
if and only if such a condition is present. Much of the intricacy (and
opacity) of *ASU*'s chapter 4 resides within this
survey.



There are some boundary crossings--like killings, maiming, or and
lifetime enslaving--for which due compensation is simply
impossible.



> 
> 
> *If* some injuries are not compensable, they would not fall
> under a policy of being allowed as long as compensation is paid.
> (Rather, they would be allowed provided compensation was paid, but
> since the compensation could not be paid by anyone, in effect they
> would be unallowed.) (65-6)
> 
> 
> 



However, Nozick focuses on two factors that severely complicate the
task of identifying due compensation for boundary crossings. The first
is fear (65-71). Here is one way that fear complicates the
identification of due compensation. Suppose we treat the right that
each individual has not to have her forearm broken as a claim
protected by a liability rule. And suppose further that we know what
the due compensation is for having one's forearm broken. On this
basis we decide to allow unconsented to forearm breaking as long as
the forearm breaker duly compensates the subject of his ministrations.
The effect of this will be to make many people fearful of having their
arms broken who will never receive compensation for that fear because
their arms will not in fact be
 broken.[20]
 Or if people are to be compensated simply for their fear, individuals
whose conduct induces fear may be required to make compensation
payments even though they never in fact break forearms. These sorts of
problems are mitigated if the right not to have one's forearm
broken is treated as a claim protected by a property right.



The second factor that complicates recourse to due compensation for
unconsented to boundary crossings is the fact that the best procedure
for identifying the due compensation for a crossing is to require
antecedent negotiation with and consent by the party who will be
subject to the crossing (63-65). The best way to identify the
due compensation for *A* for having her forearm broken by
*B* is to see what payment *A* will accept to allow
*B* to break her arm. However, this requires the
*prohibition* of the boundary crossing under discussion unless
the subject of the action agrees to it. When antecedent negotiation
between subject *A* and actor *B* is feasible, the best
route to due compensation for *A* (which is required under the
liability rule construal of *A*'s right) consists in
treating *A*'s right against *B*'s proposed
action as a claim that is protected by a property rule. Especially
since antecedent negotiation between subjects and actors is usually
feasible, even rights that are in themselves only protected by
liability rules are usually to be treated as boundaries that may not
without consent be crossed.



Nozick describes the task of identifying the compensation due to
*A* for undergoing *B*'s chosen action as the task
of identifying the just division of the benefits generated by
*B*'s action. *B* gains through his action; but
justice requires that he share those gains with
*A*--especially since the immediate effect of
*B*'s action is a loss for *A*. The just division
of the benefits is the division that *A* and *B* would
settle upon in conjunction with *A*'s agreement to be
subject to the action in question. And the best procedure for
identifying what terms would be settled upon is to require antecedent
negotiation and consent--when antecedent negotiation and consent
is feasible.



We can now return to Nozick's core argument against the
anarchist's challenge. Nozick calls for a three-fold distinction
among agencies and individuals who operate outside of the dominant
protective association. At one end of the spectrum are outlaw agencies
or rogue individuals who either aim to perform actions that cross
boundaries or pose substantial risks of crossing boundaries through
their recklessness or negligence. The actions of such agencies or
individuals may simply be suppressed to protect the rights that they
 threaten.[21]
 At the other end of the spectrum are agencies or individuals who are
known to the dominant association to pursue rights protection in ways
that are not markedly more likely to violate the rights of the
association's clients than the procedures of the association is
likely to violate rights. Given its own procedures, the association
cannot honestly proclaim that its clients have rights against the
activities of these well-behaved agencies and individuals. (But the
association may know that they are well-behaved precisely through its
monitoring of those agencies and individuals.) In the middle of the
spectrum are agencies and individuals whose procedures are not so
risky as to justify straight-forward prohibition but are risky enough
so that those whose rights are threatened seem to have some
rights-based justification for suppressing those procedures.



According to Nozick, there would be no good answer to the question of
how the dominant association should act toward agents in the middle of
the spectrum if the association had to choose between straight-forward
suppression and securing the voluntary consent of those agents to
cease or modify their procedures. But, fortunately, an intermediate
mode of action is available to the dominant association, viz.,
crossing the boundaries that protect those unacceptably risky
procedures while duly compensating the subjects of those
crossings.



> 
> 
> It might be objected that either you have the right to forbid these
> people's risky activities or you don't. If you do, you
> needn't compensate the people for doing to them what you have a
> right to do; and if you don't ... you ought simply to stop
> [the forbidding]... . But the dilemma, "either you have a
> right to forbid it so that you needn't compensate, or you
> don't have a right to forbid it so you should stop," is
> too short. It may be that you do have a right to forbid an action but
> only provided you compensate those to whom it is forbidden. (83)
> 
> 
> 



Nozick's crucial move against the anarchist depends, then, on
construing the claims to non-interference of agents who engage in
actions that pose moderate risk to others' rights as claims that
are merely protected by liability rules. Since, they are merely
protected by liability rules, those actions may be interfered with as
long as those subject to that interference are duly compensated.



Why, though, do the rights of those who pose moderate risk to
others' rights not acquire the force of claims protected by
property rules? With respect to the fear factor, Nozick seems simply
to assume that the dominant association's measures to suppress
or control the activities of those moderately dangerous (but
non-outlaw) agencies and individuals generate no complicating fear.
With respect to the division of benefits factor, Nozick seems to hold
that those who suppress (or mitigate) risky conduct by others should
not be thought of as thereby *benefiting*. They are essentially
merely diminishing the likelihood of harm being
 done.[22]
 Thus, there is no need for antecedent negotiation to determine the
just division of the benefits generated by the dominant
association's suppression or mitigation of the moderately risky
procedures of independent agencies or individuals. Everything else
being equal, it seems to follow that moderately risky procedures by
those independents may be suppressed or mitigated without *any*
compensation. (Rather, it seems that they can be suppressed or
mitigated with due compensation; but the due compensation is no
compensation.)



However, according to Nozick, everything else is not quite equal. Some
of these independent individuals or agencies may have adopted
moderately risky procedures because they (or their clients) cannot
afford more fastidious procedures. According to Nozick, *if* we
had "a theory of disadvantage" (82), it would tell us that
these independents (or these clients) will be disadvantaged by the
dominant association's interference with those moderately risky
procedures. They will be disadvantaged even though they are only
engaged in (or subscribing to) procedures that *might* infringe
on others' rights. So, Nozick concludes, the suppression or
mitigation of the procedures engaged in (or subscribed to) by these
independents must be accompanied by compensation for disadvantages
imposed upon them. Thus, we arrive at Nozick's principle of
compensation:



> 
> 
> those who are *disadvantaged* by being forbidden to do actions
> that only might harm others must be compensated for these
> disadvantages foisted upon them in order to provide security for the
> others. (82-3)
> 
> 
> 



This principle of compensation explains (or expresses) the
justification for the dominant association stepping in to suppress or
exercise mitigating control over the procedures of moderately risky
(but non-outlaw) agencies and individuals.



How does the principle of compensation get us to the minimal state?
According to Nozick, through its enforced oversight over others'
provision of protective services the association exercises enough of a
monopoly over the provision of those services to become an
*ultra*-minimal state. However, under the principle of
compensation, the dominant association's interference with
moderately risky independents who are disadvantaged by this
interference will be permissible only if the association compensates
those independents for those disadvantages. Nozick envisions that
compensation naturally taking the form of the ultra-minimal state
providing free or subsidized protective services to those who will
(otherwise) be disadvantaged by its interferences. When the
ultra-minimal state secures the permissibility of its monopoly
oversight by providing free or subsidized protection to those who are
(otherwise) disadvantaged by its oversight it becomes a (legitimate)
minimal state.



In asserting the permissibility of its enforced oversight, the
dominant association does not maintain that it has some unique claim
to suppress or control moderately risky agencies or individuals.
Nevertheless, by being the dominant association, it alone is in
position to act under the aegis of the principle of compensation
(108-110). Nozick's minimal state provides free or
subsidized protective services to some parties. To pay for those free
or subsidized services, the minimal state charges its paying customers
more than it otherwise would. This may appear to be enforced
redistribution; but it is not. For, the additional charges incurred by
the minimal state's paying clients simply are payments that are
needed to fund compensation that must be paid if the oversight that is
imposed on behalf of the clients' security is to be
permissible.



Nozick provides an important second argument on behalf of the dominant
association's monopolistic oversight and constraint of other
protective agencies. This argument focuses on *procedural*
rights. Do the clients of the dominant association have (natural)
procedural rights against having moderately risky protective measures
directed against them? Nozick recognizes that it seems implausible to
affirm procedural rights in the state of nature. Yet he seeks to back
into such rights by starting with the proposition that even in the
state of nature *C* acts wrongly *and impermissibly*
toward *D* if *C* extracts restitution payments from
*D* or punishes *D* without knowing (or having a
well-justified belief) that *D* has violated *C*'s
rights; C acts wrongly *and impermissibly* even if *D*
has in fact violated those rights and the restitution or punishment
imposed by *C* is appropriate for that violation (106). Nozick
takes the wrongness and impermissibility of *C*'s
epistemically ill-grounded reaction to justify the prohibition of
*C*'s action against the guilty *D*. So *D*
has at least the equivalent of a procedural right against
*C*'s epistemically ill-grounded conduct (107). The
dominant association can permissibly rise to statehood by enforcing
its clients' (equivalent of) procedural rights against those
moderately risky
 competitors.[23]
 The problem here seems to be that, if saying that *C*'s
ill-grounded reaction is "impermissible" is merely another
way of saying that it is morally defective, one cannot infer from its
impermissibility that it may be prohibited. It seems that one can only
infer that *C*'s reaction may be prohibited if that
reaction is impermissible in the much stronger sense of being
(equivalent to) rights-violating. But one cannot assert that the
reaction is impermissible in this stronger sense unless one already
assumes what Nozick is purporting to show, viz., that there is a
procedural right (or something equivalent to such a right) that the
ill-grounded reaction violates.


### 3.3 Further Observations about the Minimal State



We have already noted that Nozick's minimal state differs from
common depictions of the minimal state because it does not impose
taxation to finance its services. In many other ways as well, it is
more like a business enterprise than a state. There are no rulers, no
legislative body, no political elections, no contending parties and
citizens. There is no sovereignty and no state territory. There are,
instead, executives, a board of directors, shareholders, clients, and
the assets of the enterprise. But the fly in the enterprise ointment
is the absence of competitive market constraints on the price or the
quality of the services offered by this monopoly. (If there is enough
market competition to keep prices of protective services down and
their quality up, there will be too much competition for this
enterprise to count as a state.) It appears that the only other way to
keep this monopoly in check would be through some sort of
political-constitutional constraints. However, Nozick makes no mention
of these. Of course, a protective association in pursuit of customers
*might* commit itself to constitution-like constraints on its
decisions and conduct as a way of reassuring potential clients. (Mack
2018 110-124)



It is striking that a more direct route to a more conventional minimal
state--i.e., one that would fund the production of rights
protection through taxes--is available *to* Nozick. (Mack
2011) That route is opened by his shift to the liability rule
construal of rights. On that construal each individual's right
to her financial assets is at base merely a right to receive due
compensation for the seizure of those assets. So, if the dominant
association taxes individuals--seizes some of their financial
assets without their consent--but provides compensating benefits
for each of those individuals in the form of protective services, the
association's conduct will be perfectly permissible. On
Nozick's view, such non-negotiated accompanying compensation
will be inferior to antecedently negotiated terms of exchange *if
such prior negotiation would have been feasible*. However, Nozick
could have advanced the common argument that such prior negotiation of
payment for protective services would not be feasible.



That argument turns on the special public good feature of a system of
rights protection, viz., that, if such a good is produced, if will be
difficult to exclude individuals who do not voluntarily pay for that
system from enjoying (many of) the benefits generated by the system.
Perhaps the police whom I have not voluntarily paid won't
respond to *my* calls for assistance. But they will respond to
the calls of my paying neighbors and, as a result, I will enjoy a
lower level of neighborhood crime. Accordingly, antecedent
negotiations about payment for protection will not be feasible because
a significant number of individuals would decline to offer payment in
the hope that they would to get (most of) the benefits of the
production of those services even if they do not contract for
 them.[24]
 Hence, assuming that the taxation to fund the public good of rights
protection is not itself feared, the rights to the financial assets
that are seized in that taxation remain claims that are merely
protected by liability rules. According to his argument, since the
provision of that protection duly compensates for the seizures, the
imposition of those taxes is
 permissible.[25]



One strand that runs throughout *ASU* is Nozick's
interest in invisible-hand explanations--explanations of complex
orders like the adjustment of supply and demand in market economies
that do not appeal to anyone's intention to bring about the
explained order (18-22). For Nozick, part of the charm of his
story about the emergence of the minimal state is that it is an
invisible hand story. The dominant association backs into being a
state without really trying (to be a state) (118-119). This
contrasts with the visible hand quality of social contract
explanations or justifications of the state. Of course, no
*actual* minimal state is explained or justified by
Nozick's invisible hand explanation. This is no philosophical
problem because there is no actual minimal state that Nozick sets out
to justify.



However, Nozick does seem to be committed to the view that the
legitimacy of any actual minimal state that might arise will depend
upon its having arisen through permissible, rights respecting
activities; and this seems to be a problem. Consider a minimal state
that comes into existence when some aggressive individuals seize
control of a powerful coercive apparatus that has been built up
through many years of murder and plunder but then immediately undergo
conversion into conscientious libertarians. As quickly as they can
those individuals redirect the coercive power at their disposal from
aggressions against life, liberty, and property to the suppression of
rights violations by non-violating means. It seems that our judgment
about the legitimacy of this minimal state should turn at least
primarily on how it now conducts itself and not on the
impermissibility of the actions through which this state was founded
(Paul 1979).



A new angle on this topic is presented in Ralf Bader's ingenious
explanation of how Nozick's account of the way in which minimal
states *would* arise without violating rights supports a demand
in justice that actual more-than-minimal states be transformed into
minimal states. (Bader 2017) The key is Bader's idea that the
rectification of economic injustice and the rectification of (what
might be called) political justice are isomorphic. Economic
rectification requires the transition from an array of holdings that
is at least in part the product of rights violations to the array of
holdings that *would* have arisen had holdings arisen justly.
In parallel fashion, political rectification requires the transition
from political institutions that are at least in part the product of
rights violations to the political institutions that *would*
have arisen had political institutions arisen justly. Nozick's
counterfactual account of the minimal state reveals that this is sort
of political institution into which actual more-than-minimal states
must, as a matter of justice, be transformed.


## 4. Justice in Holdings



While the core official purpose of Part I of *ASU* is the
defense of the minimal state against the anarchist critique, the core
official purpose of Part II of *ASU*, is to argue that
"no more extensive state can be justified" (xi). In
chapter 8 of Part II, "Equality, Envy, Exploitation,
Etc.", Nozick seeks to counter the force of a series of
considerations that are invoked on behalf of a more extensive state.
These include equality, equal opportunity, meaningful work,
workers' control, and exploitation. In chapter 9 of part II,
"Demoktesis", he constructs an invisible hand account of
the rise of an unconstrained democratic state. The intention seems to
be to undercut the appeal of such a state by showing what sorts of
unattractive, albeit permissible, actions individuals would have to
engage in to arrive at such a state. Nozick needs, then, to explain
why a hypothetical invisible hand explanation of the minimal state
much more legitimates it than a hypothetical invisible hand
explanation of the unconstrained democratic state legitimates it
(292-294).



Still, by far the most philosophically important chapter of Part II is
chapter 7, "Distributive Justice" in which Nozick seeks to
counter the view that a more extensive state is justified as an
instrument of distributive justice. This chapter has been the subject
of the bulk of the philosophical commentary on *ASU*. In this
chapter, Nozick sketches his "historical entitlement"
conception of justice in holdings, provides a number of quite general
arguments against all alternative conceptions of justice in holdings,
endorses a Lockean Proviso that adds a bit of complexity to the
entitlement doctrine, and provides a powerful critique of Rawls'
case in *A Theory of Justice* for his strongly redistributive
"difference principle". This section focuses on the first
three of these topics.


### 4.1 The Historical Entitlement Doctrine about Justice in Holdings



Nozick's approach to justice in holdings has to be seen as
emerging from his broad construal of the implications of the
Rawlsian-Nozickean critique of utilitarianism. Whereas Rawls concludes
that a due respect for the separateness of persons precludes imposing
losses on individuals for the sake of the general welfare, Nozick
concludes that it precludes imposing losses upon individuals for the
sake of *any* conception of the overall social
good--including deeply distribution-sensitive conceptions. The
justice of a given individual's possession of and discretionary
control over certain economic goods cannot be a function of that
possession and control contributing to the general welfare *or*
to any other overall social end-state or pattern. All such
consequentialist assessments of holdings are ruled out of court. So,
if there is any acceptable account of the justice of individual
holdings, it must be a backward-looking account. The justification
must depend upon how the holdings in question have arisen.



If the holding came about by permissible and title-conferring modes of
action, the possessor will be entitled to it. If the holding came
about by modes of action that are not permissible (or are permissible
but not title-conferring) the possessor will not be entitled to it.
Thus, entitlements are historical. Individual *A* will have an
entitlement to holding *H* if and only if *A*'s
possession of *H* has the right sort of history. This stance
accords with the common-sense intuition that an agent's
acquiring economically valuable objects in certain ways--e.g.,
creating those objects out of unowned natural
materials--generates entitlements for that agent over those
objects while an agent's acquiring objects in other
ways--e.g., seizing those objects from another who has created
them out of unowned natural materials--does not generate
entitlements for that agent over those objects. A distribution of
holdings across individuals will be just insofar as the particular
holdings that constitute that distribution are just--rather than
the justice of any particular individual's holding depending on
the holistic justice of the distribution of which it is a part.



Just acquisition takes the form of just initial acquisition, just
transfer, or just rectification of an unjust taking. An existing
holding will be just if it arises from an act of just initial
acquisition or an act of just initial acquisition followed by one or
more acts of just transfer, or an act of just rectification that
counteracts an unjust taking of a just holding. An adequate theory of
justice in holdings will specify the processes that constitute just
initial acquisitions, just transfers, and just acts of rectification.
Nozick tells us that each of these principles is a "complicated
truth" (150) that he will not attempt to formulate. Thus, we
never get statements from Nozick of what specific initial acquisition
or transfer or rectification processes that result in agent
*C*'s possession of *H* generate or convey to
*C* an entitlement over *H*. Nozick never directly seeks
to explain why certain specific processes--certain specific means
of acquisition--have the power to generate or convey
entitlements. He never addresses the ways in which historical
contingency and convention may select (from among morally eligible
procedures) the specific procedures that count as entitlement
conferring within a given society. (Mack 2010 and Bryan 2017)



Nozick's lack of specification and explanation has mislead
commentators such as Cohen into thinking that, for Nozick, any *not
unjust* process that results in *C*'s possession of
*H* generates or conveys an entitlement for *C* over
*H*. "'[J]ust steps, for Nozick, are human actions
that are free of injustice..." (Cohen 1995: 39). Consider
Cohen's example of *D*'s rolling pin accidentally
rolling downhill from *D*'s kitchen into
*C*'s kitchen where *C* innocently mistakes it for
his long-lost rolling pin. Cohen thinks that, since nothing within
this transfer process is unjust, Nozick is committed to the transfer
being just and entitlement conveying and, hence, is committed to the
implausible conclusion that *C* would acquire a just claim to
the rolling pin. Although this sort of criticism rests on the mistaken
idea that, for Nozick, just processes are simply not unjust processes,
it does highlight how little Nozick does offer in the way of a
positive account of the nature and power of entitlement generating or
conveying processes.



Nozick thinks we are pushed to adopt *some* set of historical
entitlement principles by the dethronement of consequentialist
doctrines of justice in holdings; and he then implicitly relies on his
readers' intuitions about what the content of those principles
will be. Such intuitions will, e.g., count against the thought that
one can engage in the initial just acquisition of *H* by
wanting *H* or by intensely focusing one's attention on
*H* and will support the thought that some sort of physical
engagement with unowned materials is necessary for acquiring an
entitlement to them. Similarly, such intuitions will count against the
thought that an accidental transfer of a rolling pin from
*D*'s kitchen to *C*'s kitchen will convey
the right to the pin from *D* to *C* and will support
the thought that such a conveyance requires some sort of informed and
voluntary interaction between *D* and *C*.


### 4.2 The Critique of End-State and Patterned Principles



Nozick discerns two types of principles concerning justice in holdings
other than the historical entitlement type. These are end-state
principles and patterned principles. To a considerable extent,
Nozick's argument on behalf of his historical entitlement
approach consists in his critiques of end-state and patterned
doctrines. End-state principles hold that justice in the distribution
of income (or economically valuable goods) is a matter of some
arithmetical feature of one of the available distributions. Consider
three available distributions of income among three individuals (or
among three positions to be occupied by individuals):




|  |  |  |  |
| --- | --- | --- | --- |
|  | *A* | *B* | *C* |
| **Distribution *D*1** | 12 | 10 | 9 |
| **Distribution *D*2** | 4 | 22 | 13 |
| **Distribution *D*3** | 20 | 8 | 8 |



A utilitarian (or income maximization) theory will select
*D*2 as the just distribution on the ground that it
has the greatest total income. An egalitarian theory will select
*D*1 as the just distribution on the ground that it
is the most equal distribution. Rawls' difference principle will
select *D*1 on the distinct ground that within it
the lowest payoff is greater than the lowest payoff within any other
available distribution. What makes each of these doctrines an
end-state view is their shared conviction that the information
provided by this sort of matrix is sufficient for determining which of
the available distributions is the just one.



According to Nozick, a major problem for all end-state doctrines is
precisely the falsity of this shared conviction. For surely
information that cannot appear within such a matrix is essential to a
sensible judgment about which of these available distributions is
just. Consider, e.g., the following information.
*D*2 is the distribution of income that obtains when
*A* is enslaved to *B* who employs *C* as his
effective overseer. *D*1 is the distribution that
obtains when *A* is partially emancipated and is only subject
to slavery-like exploitation by *B* and *C* one week per
month. And *D*3 is the distribution that obtains
when *A* is entirely emancipated. Given the obvious relevance
of this sort of information for any responsible selection of one of
these distributions as the just one, any doctrine that asserts or
presumes that the information available in the matrix suffices has to
be deeply flawed.



Patterned theories of distributive justice escape this problem because
they hold that the just distribution is the available distribution in
which the income accorded to individuals most tracks some feature of
those individuals--e.g., their moral desert or their economic
effort--and the incidence of that feature is not reported in that
income matrix. Hence, one cannot say which of the distributions
presented in the above table is to be selected until one also knows
what the distribution of the to-be-tracked feature is among
*A*, *B*, and *C*. In addition, plausible
patterned doctrines will focus on features of individuals that are
historical--e.g., how much moral desert particular individuals
have amassed or how much economic effort they have evinced. So,
plausible patterned doctrines will be historical. However, unlike
historical entitlement doctrines, historical patterned theories will
not determine the justice of the particular holdings of individuals on
the basis of whether those individuals acquired those holdings through
entitlement generating or conveying processes.



Nozick offers a series of arguments each of which is supposed to
discredit all (non-trivial) end-state and patterned principles. (At
this point, Nozick employs the term "patterned" to refer
both to end-state principles and track-the-feature principles.) We
must focus here on two of those arguments. The first, most famous, and
most misunderstood of these arguments appears in the section of
*ASU* that is entitled "How Liberty Upsets
Patterns" (160-164). The second appears in the section
entitled "Redistribution and Property Rights"
(167-174).



In "How Liberty Upsets Patterns", Nozick asks each of his
readers to envision an income distribution that accords with her
favorite patterning principle. Then Nozick points out that more or
less as soon as that pattern *P*1 is instituted,
individuals will engage in highly innocuous dispositions of what has
been assigned to them in the name of justice that will engender a
different pattern *P*2. For instance, a million fans
will each pay Wilt Chamberlain 25 cents to see him play basketball.
However, this new pattern *P*2 will almost certainly
be convertible through fine-tuned social engineering into another
pattern *P*3 that better realizes the favored
patterning principle. Imagine, e.g., that the $250,000 that is
concentrated in Wilt's hands within *P*2 can
be effectively redistributed downward whereas it could not be
effectively redistributed downward when it was still spread out among
Wilt's moderately prosperous fans. Thus, if we continue to
assess distributions on the basis of the selected patterning
principle, we will have to declare *P*2 to be unjust
and maintain that justice requires its conversion into
*P*3. And, more or less as soon as
*P*3 is instituted, individuals will engage in
highly innocuous dispositions of what has just been assigned to them
in the name of renewed justice that will engender a different pattern
*P*4 ... and so on. Nozick then identified two
problems with this continued application of the favored patterned
rule.



This first problem is that, if (as stipulated) the holdings of
individuals under *P*1 were just and if (as
stipulated) interactions that converted *P*1 into
*P*2 were all just, it is difficult to see how
*P*2 can become infected with injustice. Of course,
*P*2 (almost certainly) must be *judged* to
be unjust if one continues to assess the justice of distributions on
the basis of the adopted patterned principle. But it seems reasonable
to demand an explanation of *how* that asserted injustice could
have entered *P*2 given the justice of
*P*1 and of the processes through which
*P*2 emerges from *P*1.



> 
> 
> By what process could such a transfer among two persons give rise to a
> legitimate claim of distributive justice on a portion of what was
> transferred, by a third party who has no claim of justice on any
> holding of the others *before* the transfer? (161-2)
> 
> 
> 



It does not seem to be a sufficient answer to say that injustice must
have entered in *P*2 because, after all, when we
apply the operative distributive principle to *P*2
we reach the conclusion that *P*2 is unjust.



The second problem is that the endorsement of redistributive
interference with the outcomes of persons' innocuous deployments
of their assigned holdings seems to be inconsistent with the justice
of that assignment of holdings. For surely one may dispose as one
chooses of one's just holdings as long as one does not unjustly
impinge upon others and their just holdings.



> 
> 
> If the people were entitled to dispose of the resources to which they
> were entitled (under *D*1), didn't this
> include their being entitled to give it to, or exchange it with Wilt
> Chamberlain? (161)
> 
> 
> 



To endorse redistributive interference with the outcomes of
persons' non-impinging dispositions of the holdings that have
been assigned to them seems to rescind the justice of that assignment
of holdings.



> 
> 
> Patterned distributional principles do not give people what
> entitlement principles do, only better distributed. They do not give
> the right to choose what to do with what one has... (167)
> 
> 
> 



This aspect of Nozick's critique is nicely summed up in Hillel
Steiner's quip that patterned theories of justice "create
rights to interfere with the rights that they have created"
(Steiner 1977:
 43).[26]



It is important to note that the problems that Nozick's
identifies are problems *internal to* the ongoing application
of any patterned principle. Nozick should not be read as making the
question-begging external argument that, since conforming to liberty
is the standard by which theories of justice in holdings should be
assessed and patterned theories often call for interferences with
liberty, patterned theories must be dismissed. Nevertheless, Nozick
bears considerable responsibility for this reading when he says,



> 
> 
> The general point... is that no end-state principle or
> distributional patterned principle of justice can be continually
> realized without continuous interference with people's lives.
> (163)
> 
> 
> 



Nor should Nozick be pictured as holding that the problem with
patterned theories is that they would forbid any departure from a
*P*1 that is instituted because, at the time it is
instituted, it is the available distribution that best realizes some
favored pattern. Nozick is not charging patterning theorists with
forbidding the exchange between Wilt and his fans.



An important response to Nozick's "How Liberty Upsets
Patterns" arguments is that they rely upon a mistaken picture of
the patterned theorist's program. According to this response,
Nozick represents the patterned theorist as aiming at the daily (or
weekly or monthly) fullest available realization of her favorite
pattern. On this representation, at the end of each day (or week or
month) the advocate of, e.g., the Rawlsian difference principle will
determine whether the existing distribution can be transformed into
one that provides a higher income for those in the lowest income
positions for the next day (or week or month); if such a
transformation is available then (on this representation) the
difference principle advocate will require it as a matter of justice.
Hence, the continuous interference in the name of justice with the
results of people acting as they choose with their purported just
holdings. However, the advocate of the difference principle will
maintain that this principle guides the design of the basic
institutional structure of society; it provides the basic structure
with the aim of raising the lifetime income of the representative
lowest income individual as much as possible. What is assigned to
individuals as a matter of distributive justice is a lifetime stream
of income that arises through some combination of permitted and
protected modes of income acquisition, tax and regulatory structures,
and tax-funded assistance. Wilt does not have a claim in justice to
his holdings on the day before the fans transfer $250,000 to him or to
his holdings on the following day. He has a claim in justice to the
lifetime income that will accrue to him when a basic structure is in
place which, through enabling income acquisition, taxing, regulating,
and subsidizing income yields (something like) the highest possible
lifetime income for the least advantaged. That claim in justice is not
violated when the IRS seizes, say, 70% of his $250,000 windfall.



Hence, in his most direct response to Nozick's challenge, Rawls
declares,



> 
> 
> There are *no unannounced and unpredictable* interferences with
> citizens' expectations and acquisitions. Entitlements are
> earned, and honored *as the public system declares*. Taxes and
> restrictions are all *in principle foreseeable*, and holdings
> are acquired on the *known* condition that certain transfers
> and redistributions will be made. (Rawls 1993: 283, emphasis
> added)
> 
> 
> 



It would seem, however, that Nozick can insist that any ongoing
attempt to maximize lifetime incomes for the worst off (or to sustain
any other non-trivial pattern) *will* require unannounced and
unpredictable interferences with citizens' expectations and
acquisitions. For, as economic preferences, needs, opportunities,
beliefs, insights, and capacities change in unannounced and
unpredictable ways, the public system will similarly have to change if
it is going to continue to aim at maximizing lifetime incomes for the
worst off. And as further unannounced and unpredictable changes occur,
the basic structure will again have to be changed in unannounced and
unpredictable ways. As Rawls himself says, "... even in a
well-ordered society, adjustments in the basic structure are always
necessary" (Rawls 1993: 284, Mack 2018: 124-129). The
institution of those adjustments will almost certainly have to
dishonor some of the entitlements proclaimed under the previous public
system and treat some of people's previously earned holdings to
previously unannounced and unpredictable transfers and redistributions
(Mack 2002a, 85-91).



In "Redistribution and Property Rights" Nozick offers a
more external argument against all patterned theories of justice. The
argument is that the institutional operation of any (non-trivial)
patterned doctrine amounts to the institution of partial ownership of
some people by other people.



> 
> 
> Whether it is done through taxation on wages or on wages over a
> certain amount, or through seizure of profits, or through there being
> a big social pot so that it's not clear what's coming from
> where and what's going where, patterned principles of
> distributive justice involve appropriating the actions of other
> persons. Seizing the results of someone's labor is equivalent to
> seizing hours from him and directing him to carry on various
> activities... . This process ... makes [those who carry it
> out] a part-owner of you; it gives them a property right in you. Just
> as having such partial control and power of decision, by right, over
> an animal or inanimate object would be to have a property right in it.
> (172)
> 
> 
> 



Nozick distances himself from a Lockean labor-mixing account of just
initial holdings by jokingly asking whether one comes to own the ocean
by pouring one's can of tomato juice into it (175). And, in the
passage above, he carefully avoids saying that the operation of any
patterned doctrine infringes upon one's self-ownership by way of
appropriating one's *labor*.



Nevertheless, the argument in this passage seems to be quite Lockean
in its basic structure. Rather than focusing on particular
expropriations of this or that labor infused object, the argument
attends to the configuration of control over individuals'
actions, time, and decisions that the institution of any (non-trivial)
distributive pattern will require. According to Nozick, such a
configuration of control wrongly treats the individuals who are
subject to it without their consent as though they are in part the
property of those who establish and exercise that control. Note that
even here Nozick does not seem to be proposing specific content for
the principles of just initial acquisition and just transfer. Rather,
the goal is to provide a general vindication of the historical
entitlement approach by undercutting the end-state and patterned
approaches.


### 4.3 Nozick's Lockean Proviso



Nozick follows Locke in adopting a version of the claim that an
individual will have a complaint in justice against otherwise
perfectly just acquisitions by others if those acquisitions do not
leave that individual with "enough, and as good"
(174-182). Although Nozick's discussion of his Lockean
proviso is somewhat murky, we can identify three important features of
that proviso doctrine.



First, whether an individual has a complaint under Nozick's
Lockean proviso will not be a matter of whether too little natural
material has been left in common by others or too little material has
been left for that individual to initially acquire. Rather, that
individual will have a just complaint against others'
acquisitions if and only if those acquisitions leave her on net worse
off in terms of utility or welfare. The individual will have no just
complaint even if her utility or welfare is diminished by a decrease
in what remains in common or a decrease in what remains available for
her initial acquisition as long as she is duly compensated in terms of
utility or welfare by *other effects* of the acquisitive
actions of others. The claim at the core of Nozick's
"enough, and as good" proviso is only protected by a
liability rule.



Second, in his main discussion of it, Nozick maintains that this
proviso is readily satisfied in free market
 economies.[27]
 This is in part due to the strong tendency of the rising tide of such
economies to raise up all those who are willing to swim with it (177).
It is also in part due to the low baseline set by the proviso. Nozick
never carefully spells out that baseline. But it must be something
like how well off the individual under consideration would have been
had all natural stuff remained in the common or, perhaps, how well off
that individual would be (over his lifetime) were all natural stuff
(or even all owned stuff) now returned to the common.



Third, the proviso adds "an additional bit of complexity into
the structure of the entitlement theory" (174). It specifies a
way in which things could go especially badly for an individual even
if the acquisitions of others are entirely in accord with the
principles of justice in acquisition and it asserts that individuals
would have a complaint in justice should things go that badly for them
in that way. For Nozick, the primary case for the justice of any
holding continues to turn on its having arisen through processes that
accord with the principles of just initial acquisition, just transfer,
and (if relevant) just rectification. (This is why it is such a
serious problem that Nozick never spells out those principles and
never explains why acquisition in accordance with them has the power
to engender or convey entitlements.) For Nozick, even if the proviso
is violated, those who have acquired justly do not have to surrender
their holdings--albeit they need to provide compensation to those
whose situations are on net worsened by the existing system of
 holdings.[28]


### 4.4 The Rectification of Historical Injustices



Nozick recognizes that even in relatively free societies the
historical processes that have yielded existing holdings have been
shot through with injustices. The history of almost all existing
holdings includes lots of appropriation by way of murder, plunder,
enslavement, fraudulent dealings, and other illicit coercive transfers
(usually on behalf of the rich and powerful). We do not need a
delicately worked out theory of rectification in order to say that, if
*A* has grabbed *B*'s goat yesterday, he can be
required to return it to *B* today. But we do need a highly
elaborate theory to inform us about what rectification payments (if
any) should now be required of whom on behalf of who else because of
injustices performed 20 or 50 or 200 years ago. Presumably any
acceptable doctrine will require that only current victims of past
injustices have just claims to rectification payments and that they
only have just claims against current beneficiaries of those past
injustices. Perhaps, then, bygones should be treated as bygones when
we lack the information that a well-developed doctrine of
rectification would require us to have to justly rectify long past
 injustices.[29]



Nozick closes chapter 7 with two thoughts concerning rectification.
The first is that proper rectification may have to take the form of
rough and ready payments to classes of people whose members are likely
to be worse off than they otherwise would be because of historical
injustices--payments that would be funded by taxes upon classes
of people whose members are likely to be better off than they
otherwise would be because of those historical injustices. The second
is that some end-state principle might come into play as a guide for
these required payments--albeit "it may well be
implausible" (231) to select the difference principle as this
guide.


## 5. Utopia



The official purpose of Part III of *ASU,*
"Utopia", is to show that the minimal state is not merely
legitimate and just; it is also inspiring. This purpose is advanced by
sketching a framework for utopia that is inspiring and noting that
this framework is highly akin to--Nozick actually says
"equivalent to" (333)--the minimal state. Yet Nozick
also says that the framework might not have any "central
authority" (329). Still, the framework is akin to the minimal
state because it is an institutional structure that enforces peaceful
co-existence among voluntarily formed communities. It protects the
independence of such communities and their freedom to recruit members
and also protects the liberty of individuals to enter and exit
communities as they respectively choose. Although Nozick is not
explicit about this, we have to presume that the framework enforces
the same norms of personal freedom, property, and contractual
compliance that the minimal state enforces except insofar as
individuals voluntarily relinquish such rights within the communities
they enter.



The framework is inspiring because of the way it contributes to
persons' identification of and participation in communities (and
other networks of relationships) through which they will find meaning
and well-being. It is inspiring to anyone who appreciates how little
each of us knows about what sorts of communities best suit human
beings in all their depth and diversity and how much the operation of
the framework assists individuals in their discovery of and engagement
in communities that enhance their respective well-being. Moreover,
many persons may value the framework not merely for the way it
enhances their own good but, also, for the ways in which it allows
them to participate vicariously in others' achievement of their
different modes of flourishing (Lomasky 2002).


### 5.1 The Framework as Discovery Procedure



The framework is--or, more precisely, sustains--a discovery
procedure. Under the protective umbrella of the framework, individuals
are presented with and can try out diverse communities while
communities themselves arise and modify themselves in their
competitive search to sustain, improve, or increase their membership.
A wide range of communities will continually arise out of and in
response to the evolving perceptions that diverse individuals will
have about what modes of sociality will best suit them and will best
attract welcome partners. Communities will survive and perhaps expand
or be imitated insofar as they actually embody modes of relationship
that serve well their actual or prospective membership or insofar as
they successfully refine their offerings in the market place of
communities. The framework also insures that those who are already
confident that they know what sort of community is best for them will
be free to form those communities by voluntary subscription and,
thereby, to manifest their actual value (or disvalue) to themselves
and to other seekers of well-being.



Part of Nozick's sub-text here is a message to socialist
utopians that nothing in the framework (or the minimal state)
precludes their non-coercive pursuit of their ideal communities. How,
therefore, can socialists object to the framework (or the minimal
state)? This generalizes Nozick's earlier claims in *ASU*
that that advocates of meaningful work and workers' control of
productive enterprises ought not to be hostile to the minimal state
since the minimal state is fully tolerant of non-coercive endeavors to
establish such conditions (246-253).



In a short essay in *Reason* magazine published four years
after *ASU*, Nozick asked, "Who Would Choose
Socialism?" (Nozick 1978). More precisely, his question was:
What percent of the adult population would choose "to
participate in socialist interpersonal relations of equality and
community" were they in position to choose between "a
reasonably attractive socialist option *and* also a reasonably
attractive non-socialist one?" (Nozick 1978: 277). Nozick takes
the choice available to Israelis between membership and non-membership
in kibbutzim to be a good instance of a choice between such options
and notes that around six percent of the adult population of Israel in
the 1970s had chosen the socialist option. He speculates that
socialists are at least "tempted" to be imperialists,
i.e., to impose on everyone one their own vision of utopia, precisely
because they sense that there will be too few volunteers (Nozick 1978:
279).



The discovery procedure that the framework sustains is a version of
Millian experiments in living--albeit it is a version that places
much more emphasis on the role of a marketplace of communities in
providing individuals with experimental options. This discovery
procedure (like Millian experiments in living) is, of course, a
Hayekian invisible hand process. Given the enormous diversity among
individuals, we do not know what one form of community would be
best.



> 
> 
> The idea that there is one best composite answer to all of these
> questions [about what features utopia has], one best society for
> everyone to live in, seems to me to be an incredible one. (And the
> idea that, if there is one, we now know enough to describe it is even
> more incredible.) (311)
> 
> 
> 



Nor do we know what distinct modes of community would be best for
distinct types of persons. Thus, we cannot design an inclusive utopia;
nor can we design an array of mini-utopia such that some significantly
fulfilling community will be available to everyone--or even to
most.



> 
> 
> It is helpful to imagine cavemen sitting together to think up what,
> for all time, will be the best possible society and then setting out
> to institute it. Do none of the reasons that make you smile at this
> apply to us? (313-314)
> 
> 
> 



Given our ignorance, the best way to realize utopia--almost
certainly many distinct utopia--is through the discovery
procedure that the framework sustains. (We should note, however, an
implicit, somewhat puzzling, and wholly unnecessary presupposition of
Nozick's discussion, viz, that individuals with utopian
aspirations will generally seek out communities that are made up of
other individuals like themselves. The suggestion is that chosen
communities will be internally homogeneous with heterogeneity existing
only across these communities.)


### 5.2. An Independent Route to the Minimal State



The role of the framework in sustaining a discovery procedure brings
us to the second main purpose of "Utopia". This is the
provision of an independent vindication of the minimal state--one
that specifically does not depend on "the moral arguments for
individual liberty" (309 footnote\*) offered in Parts I and II of
*Anarchy, State, and Utopia*. Although the activities of the
framework are described in terms of protecting the rights that are
affirmed in early parts of the book, the utopian advocacy of the
framework does not rely upon the validity of those rights. Rather,
that advocacy turns on a general endorsement of utopian aspiration
combined with the core epistemic claim that, given our ignorance, the
only sensible route to utopia is the discovery procedure that the
framework sustains.



There is, however, an apparent problem with Nozick's
independence claim. Nozick distinguishes among three sorts of
utopians. There are "existential utopians" who have a
particular utopia in mind for themselves and others who will be drawn
to it but have no problem with yet others being drawn to different
utopia. There are "missionary utopians" who hope "to
persuade or convince everyone to live in one particular kind of
community, but will not force them to do so". And there are
"imperialistic utopians" who countenance "the
forcing of everyone into one pattern of community"
(319-320). While existential utopians will embrace the framework
and missionary utopians will (less heartily) support it, imperialistic
"will oppose the framework as long as some others do not agree
with them" (320). Nozick's response to the imperialist is
to say "Well you can't satisfy everyone, especially if
there are those who will be dissatisfied unless not everybody is
satisfied" (320). The suggestion--never explicitly stated
by Nozick--is that the imperialist pursuit of utopia is to be
suppressed by the framework precisely because it is
*impermissibly* coercive. But, if so, the justification for
this crucial operation of the framework must appeal to some of
"the moral arguments for individual liberty" from which
Nozick wants his utopia argument to be independent.



However, Nozick may be able to escape from this problem by emphasizing
that imperialists are being excluded on epistemic rather than moral
grounds. The question is, on what procedures will epistemically
sensible utopians--utopians with a due appreciation for the
difficulties involved in identifying and instituting
utopia--converge? And the answer is, on the processes of
voluntary association and dissociation and adjustment that the
framework aims to sustain. Imperialist utopian coercion is simply not
part of the process that all utopians have reason to favor because of
its epistemic fecundity. Moreover, the operation of the framework does
not preclude the establishment--for some people or for
all--of the mode of community favored by *any*
utopian.



> 
> 
> Since any particular community may be established within the
> framework, it is compatible with all particular utopian visions, while
> guaranteeing none. (320)
> 
> 
> 



Any utopian who wants her (current) vision to be guaranteed by being
forced upon others has good epistemic reasons to shed that desire.



Still, it might be maintained that the most informative discovery
procedure is one that embodies no-holds-barred competition among
communities. For surely we want to know which communities or
associations of communities, if any, will be capable of defending
themselves against the imperialists. Since it seems that the most
informative discovery procedure would not exclude imperialist
utopians, it seems that the real basis for the exclusion of
imperialists must be moral. Hence, it appears that their exclusion
does undercut Nozick's goal of providing an independent
vindication of the minimal state.



However, this problem also may be just a matter of appearance. After
all, the framework proposed by Nozick does not exclude imperialists in
the sense of stipulating their non-existence. Rather, one of the core
roles of the framework is precisely to protect non-imperialists and
their voluntary modes of association and dissociation from those
epistemically short-sighted, albeit still existing, imperialists. The
operation of the framework should, therefore, be seen as a two-level
discovery procedure. On one level it operates as Nozick explicitly
describes--as a competitive market place of communities serving
individuals who are becoming more informed about their taste for
community. However, on another level, the operation of the framework
is a procedure through which non-imperialist communities and
non-imperialist individuals who do not enter any utopian community
discover how, if at all, they can cooperate in maintaining and
operating the framework so as to protect themselves and their
epistemic quest from the imperialists.