PLSC 118 - Lecture 13 - Appropriating Locke Today

Chapter 1. The Social Contract Tradition: Robert Nozick (1938 to 2002) [00:00:00]

Professor Ian Shapiro: An important transition today. We're going to start talking about the social contract tradition. We've come a long way. It's still only February, but you've really worked through two of the major Enlightenment traditions of thinking about political theory. To get into the social contract tradition we have to go back again to Locke, who is a kind of hovering presence throughout the whole course, and Locke's idea of workmanship, which we thought about mainly in relation to creation of objects of value, the theory of property in Locke, and how that plays itself out in the labor theory of value developed by Marx that we've been talking about for some time over the past couple of weeks.

Well, alongside the economics of workmanship, if you like, that goes back to Locke, there's a politics of workmanship, because just as we own what we make in the material sense, in Locke's story, we also own the political institutions that we create. And if you cast your minds back to the early lectures I gave on the Enlightenment project a big part of that claim was that we could have maker's knowledge of the political institutions we create just as we have maker's knowledge of the economic and social relations that we create.

And not only do we have maker's knowledge so we can have this kind of certainty the early Enlightenment theorists were looking for, but we also have maker's authority over what we create. Remember I told you that Locke was engaged in this debate with other natural law theorists in the 1660s, where the big question was whether or not God is omnipotent. And the question was that if you said God is omnipotent it seemed to threaten the timelessness of natural law because he'd be in a position to change it. On the other hand, if you said that God does not have the power to change natural law that seemed to undermine his omnipotence.

So either the timelessness of natural law or the omnipotence of God, but it seemed like you couldn't have both. And Locke wrestled with this question his whole life, but in the end came down on what's sometimes called the voluntarist side, the will-dependent side, the side which got him into the whole workmanship ideal. So we know what we make and we own what we make because God gave us the capacity to be able to operate as miniature gods and to operate in a god-like fashion creating institutions, and economic relationships, and social relationships over which we have the same kind of control with the caveat that we, as God's property, were bound by God's wishes which appear to us as natural law. Whereas, in the things we create, so long as we don't violate those constraints, us as God's creatures, we can do what we like.

And that is the idea that informs Locke's argument in The Second Treatise where he says, to remind you, there's no earthly authority that can settle disputes about natural law and so it's every person for themself if there really is a disagreement, and I'll come back to the implications of that more fully later when we talk about majority rule. But the most important point to take away for right now is that we are constrained by natural law in the natural law tradition because we're God's property, and he has maker's knowledge over his creation which we are, but with the constraint or with the caveat that he rejects the traditional idea — he was arguing against Filmer and others about that there's anybody, whether it's the Pope, or the King, or anybody else, who has the right to say what natural law means in the case of a dispute.

And that's the beginning of modern individualism for Locke; that we're miniature gods on the one hand, and yes, we're constrained by natural law, but it's not much of a constraint, really, because we're the ones who get to say what natural law means in a disputed circumstance. So the individual comes into the center of thinking about politics.

Now, Nozick, Robert Nozick, is the person we're going to use to ease our way into modern social contract theory. In a way it's an odd choice because Nozick is actually a critic of John Rawls, who we're going to read next, and probably wouldn't have even written the book that he wrote but for the existence of Rawls's book to which he was reacting. But I'm choosing to do Nozick first for pedagogical reasons. One is because Nozick explicitly builds off a Lockean set of intuitions, and secondly because his formulation of the social contract is another variation of the rights-utility synthesis that we looked at in connection with Mill, but it's one that purports to solve the main problem that we were left with in Mill, which is the Marxian critique of markets.

If you recall from the end of our discussion of Marx, we said that one of the things that is left untouched by all the problems with Marx is Marx's critique of markets from the standpoint of the status quo, the starting point's problem, the garbage-in/garbage-out problem. That if you have an unjust status quo, and then a lot of market transactions, all those transactions are going to be infected by the injustice that goes into the status quo, If the corn dealer really is a starver of the poor, to use Mill's example in the chapter on free speech, Nozick thinks he has an answer to that. Nozick thinks that he has a reformulation of the rights-utility synthesis that answers that problem, and we'll only get to how he thinks he answers that problem next Monday, but he thinks that he has an answer, and in fact it's a brilliant answer. And even those of you who don't like that answer are going to find it very difficult to respond to Nozick's point.

But before getting into the details of Nozick's argument I think it's worth just pausing for a minute to notice two problems that any social contract theory has, and has long been known to have, which anybody who tries to come up with a social contract theory has to deal with. It's long been known, first of all, that because there never was an actual social contract, that assumptions you make about natural man tend to be loaded with assumptions about human beings from your own society. This critique is maybe not as old as the hills, but it's certainly as old as Rousseau's critique of Hobbes. Writing in the eighteenth century, Rousseau said, the problem with Hobbes' Leviathan, which is another version of the social contract that we're not reading in this course — Rousseau said the problem with Leviathan is that Hobbes takes assumptions from the people of his own day, and attributes them to natural man, projects them on to the idea of natural man, and you can't do that. And so Rousseau's own version of the social contract is much more historical. It attempts to take account of the evolution of people from some kind of almost pre-human condition to a condition in which social and political relationships evolve.

But this claim is made time and again when people talk about the social contract as moving from a condition of pre-natural, pre-political man to a social and political condition people say, "Well, the problem with it is Rousseau's problem with Hobbes." That what people in fact do is take a set of assumptions about human beings that are the product of the society that's been created and attribute them to natural man. And so you get this problem that what you put into it is — it's a different but related kind of garbage-in/garbage-out problem. The assumptions you make about human nature are taken from the society you want to justify, and then you present them as though they were features of pre-social, if you like, human nature. And so the argument goes.

What we now know from 200 years of anthropology is that actually Aristotle was right. There never was a pre-social condition. Human beings are naturally social creatures and you can't analyze them apart from their social and cultural environment. You just can't do it. Anything you try to do in that general direction will be — it will obscure more than it reveals. You'll end up with tendentious assumptions about human nature that will allow you to derive the conclusions that you want, but at the end of the day this is only going to persuade the people who agreed with you before you began and it's not going to convince the skeptics, so what's the point?

So this is one problem that has long been known to attend social contract theory, and anybody who's going to roll one out has to deal with it. And what you find with the modern social contract theorists like Nozick and Rawls is they say, "Granted, we don't disagree that there never was a social contract." And indeed, even if you look at the — those of you who are students of American history will know even if you look at the social contract that came the closest to being an actual social contract to create a society, namely the creation of the American Republic, even there if you look it didn't come about as the result of an agreement. The Federal Constitution was put in place in violation of the Articles of Confederation. It was largely imposed by the Federalist forces who were stronger than the anti-Federalists, than the Confederation forces.

So even the American example, which is the one that inspires Nozick's book, is not a case of a creation of a society from whole cloth by agreement; it's neither out of whole cloth because there were already social and political arrangements before, and it's not really by agreement because it was imposed on those who didn't want it pretty much by force. We'll come back to the extent to which it was imposed later, but the basic fact remains.

Nozick knows all of that. He's not a fool, and he's not ignorant, but he says, "Let's suppose society could be created by unanimous agreement, could be created by consent, what would it look like?" And we're not saying pre-political, pre-social beings, people like you and me. If we were in a situation where there was no state what kind of state, if any, would we create? And we'll see when we come to do John Rawls, after the break, he has the same approach.

People often get Rawls and Nozick wrong. They're not saying, "We can imagine what people would be like if a state didn't exist in the sense that Hobbes did and Locke did, and Rousseau criticized them for doing." Rather he's saying, "You and me, considering ourselves as we are, if the state didn't exist what kind of state would we create?" We know it's a thought experiment. We know it's a hypothetical exercise; nonetheless, if we can answer that question, it gives us a standard by which we can compare existing institutions that didn't come about in that way from the standpoint of this normative ideal of consent. What would people have chosen, even though they never did choose it, tells us something about existing institutions, namely those that are closer to what people would have chosen are better, and those that are further from what people would have chosen are worse.

So it's the search for a normative ideal based on a hypothetical contract. Whereas, Hobbes and Locke thought the state of nature was a condition that had actually existed in the world and to which people could return. Hobbes thought England, during the Civil War, actually went into a state of nature. Locke thought much of North America, in the seventeenth century, was in a state of nature. So it's a very different exercise in that sense. It's a hypothetical social contract, not an actual one, designed to generate a normative standard, a standard for evaluating institutions as they exist in the real world.

That's all. So that's the first thing. You have to have an answer to this there-never-was-a-social-contract critique, and the answer of the modern social contract theorists is, "Yes, we know, but it's still a useful hypothetical exercise."

The other problem that anyone rolling out a social contract theory has to address is that nobody really buys natural law arguments in the way that was often hoped that they would. Now, it's important to get clear about this because what we don't want to do is to buy into a rather simplistic, comic strip version of the history of ideas that sometimes shows up in textbooks. The comic strip version goes something like this: well, there used to be natural law theory and that solved the problem of how we get higher values for judging existing institutions, but then along came the decline of natural law and secularism, and we lost belief in natural law, and so now everything is a sea of relativism.

Once you start down that path you wind up with Stevenson. You wind up, remember, emotivism and all that? We talked about it in relation to Mill. Once you start down the path of rejecting natural law you're going to wind up with extreme relativism and subjectivism. You're going to wind up with the idea that everybody's moral judgment is just as good as everybody else's. And the problem with natural law theory is it's a throwback to this era when people believed in natural law. And so now people don't, and that's the problem. And so how can you generate a natural law theory when most people don't accept the idea of natural law? That's the cartoon strip story. 

And the cartoon strip story has one very big problem with it, which you are in a position to know about because of what we've read with respect to Locke. Namely, that there never was agreement on what natural law required. I talked to you about the disagreement between those who favored the timeless universal conception of natural law and those who favored the so-called voluntarist or workmanship theory that Locke embraced.

But actually that's only the tip of the iceberg. You go and read a book like Richard Tuck's book on medieval natural law theory and what you'll discover is that in the fifteenth, sixteenth, seventeenth centuries the disagreements that they had within the natural law tradition about politics were just as extensive as the disagreements we have to today. That is to say you could find people defending everything from what we think of today as the far left, to everything that we think of today as the far right within the idiom of a natural law vocabulary. But there wasn't less disagreement. There wasn't less political disagreement. There were huge political disagreements that led to enormous — to civil wars, to religious wars in the sixteenth and seventeenth centuries.

So the notion that appealing to natural law is some sort of panacea, and that the problem is that the world we've lost is a world in which there was natural law, doesn't get us anywhere because we know that natural law, whatever its virtues and deficiencies, is not something that can solve political disagreements. As I said, there was a natural law theory that was compatible with every political position you could imagine, and many that you couldn't imagine which existed. If you want examples of that go and read Christopher Hill's book called The World Turned Upside Down, which is a book about ideas and political movements that got nowhere in the seventeenth century, and you'll see that natural law could be lined up with any politics you could possibly imagine.

We don't want to say that the problem is that natural law used to constrain and now it doesn't because people agreed; we know that they didn't. Nonetheless, that still leaves the analytical problem that if there are going to be any constraints on what it is that people can agree to, that are not simply the result of what we have found in the world, they must come from somewhere. And if you're going to roll out a natural law theory that doesn't depend upon natural law, you've got to find some other basis for doing it, right?

I mean, just to give you one more example to underscore this, we saw that the inequalities among people — we talked about this some and we're going to talk about it more in connection with John Rawls — they're a big problem for us because why should some people get more than others just because they're smarter or more hard-working than others, right? If you're a Lockean there's no problem with that proposition because if some people are more able to create wealth than others it must have been part of God's plan, right? But once you secularize workmanship and chop off the idea of natural law and God's plan, and all that, then you get into the sorts of problems we got into when we were dealing with Marx's theory of exploitation. Remember when we introduced the stay-at-home spouse, and the contributions of Sunday school teachers or anybody else to the creation of value we got this over determined set of entitlements that didn't lead us anywhere.

So once you secularize workmanship it seems to lead everywhere. If you no longer have the constraint that Locke had, well what we see where must be God's plan because this is how he created it; so what are you going to use instead? That's the question. What are you going to use instead of natural law?

Chapter 2. Kant, Nozick and the Conception of Individual Liberty [00:22:58]

And the modern social contract theorists appeal to a nineteenth century German philosopher called Immanuel Kant, eighteenth and nineteenth century thinker who came up with an idea that stands in for natural law, and that is the idea of — wait for it; I told you people don't like to say in words of one syllable what can be said in words of five — universalizability, universalizability, nine-syllable word. And the basic intuition here is the following: the basic intuition is, if you could choose something from every conceivable standpoint, then it has the force of a moral law. Anyone know what the philosophical term for this was that Kant came up with, anyone who took a philosophy course?

Student: Categorical imperative.

Professor Ian Shapiro: Categorical imperative. Well, what was the categorical imperative contrasted with? Somebody? Anyone know? No reason that you should. The categorical imperative was contrasted with the hypothetical imperative. And the idea of a hypothetical imperative was if/then. So if you want your society to thrive don't create big government. That's a hypothetical imperative. Categorical imperative is, don't create big government ever under any circumstance. So the idea of a categorical imperative is that it's not dependent on an if/then statement, right? So that's the notion behind Kant's ethics; that we should look for propositions that we would affirm regardless of the consequences. That's the notion of a categorical imperative.

Now Rawls goes into this in some detail of what its implications are for contemporary political theory, and we'll talk about that after the break. Nozick just takes it for granted, and one of the reasons I'm starting with Nozick is I don't really want to dig into the question yet of whether and to what extent Kant's ideas are applicable to contemporary politics. Nozick says, "Let's just try them out and see," basically, so one of his slogans is, "Kantianism for people, utilitarianism for animals," right? And the notion here is for human beings this idea of respecting principles that can be affirmed from every point of view, that's going to replace natural law. That's the move that Nozick makes, and it's the move that Rawls makes as well.

Does anyone happen to know what the famous categorical imperative was, the example that Kant gave of something that rises to this level of a categorical imperative? It isn't just merely hypothetical. Well, the example he gave was, "Always treat others as ends in themselves, not merely as means to your own ends." The bumper sticker for this is autonomy, "Respect people's autonomy." This is our rights piece of the rights-utility synthesis, right? And Kant's view was that is a proposition everybody would affirm regardless of the empirical consequences, regardless of what effects it has. You'll always say that, no matter who you are, that we should respect the autonomy of others understood in this way. Yes, we all have to use one another to some extent. He doesn't say, "Never use people as means to your own ends"; he says, "Never use people exclusively as means to your own end."

So that's his example, and that's what Nozick takes over in his conception of individual liberty which he puts out there right at the beginning of Anarchy, State, and Utopia, when he says, "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." So there's a strong libertarian stance identified with this Kantian notion of respecting the autonomy of others. We can't use people for some greater good because then we're using them. We're violating their rights, and this is where Nozick is headed.

And what he does is disarmingly simple, and easily dismissed, and you make a mistake if you dismiss him because you'll not see what turns on some of his claims that turns out to be very interesting and important. So what he does is, he says, "Let's imagine there was no government." We're not talking about primitive people. We're talking about people like you and me. Let's imagine there was no government. What would happen? What would people do if there was no government?

And Nozick is aware that you could make different assumptions about that. Like Hobbes makes the assumption inLeviathan that people will be so afraid of one another that they will try and kill everybody around them. Then you'll get civil war. The fear that others are going to do something to you will be so great that unless you impose an authoritarian state on people they're going to have a civil war, and there's no other possibility. And so by making the state of nature very benevolent Locke thinks he's going a different way, because by making it malign it's easy for Hobbes to justify authoritarianism; the state of nature is so terrible that anyone would put with an authoritarian system rather than the civil war in which life is "solitary, poor, nasty, brutish and short," as Hobbes put it in Leviathan.

So Nozick says, "Let's not do that. Let's go with Locke, and let's make the state of nature relatively benign because it'll make our argument more convincing." It'll make our argument more convincing because if you make the state of nature relatively benign it's harder to justify the creation of a state. And we want to make it hard for ourselves to justify the creation of a state because then it'll make our argument more convincing to skeptics, right? So we want to make this intellectual problem as hard for ourselves as we possibly can. Now there's something of an intellectual slight-of-hand going on in this that I'm going to come back to, but I'll just flag for right now. And the way he sets it up, he says, "Let's make it hard to derive the idea of a state."

So he says, "Imagine a world in which there's no government." It's a hard thing for us to do. Just to make this real; do you know when police were created? The first police force was created in Britain before here. No reason you should, 1830 Prime Minister Peel created the — the first police were called Peelers, named for the Prime Minister. But imagine, just you think about it. Think about living in a world where there were no police. I mean, it'd be a very, very different world, right? Think about the ways in which just in a day in New Haven, the number of things that go on that are somehow affected by the hovering presence of police. And so Nozick wants you to do that in a more radical way. What would happen if there was no government?

Chapter 3. Evolution of the State without Rights Violations [00:32:53]

Well, it wouldn't be a very efficient circumstance. Even if we don't think that everyone would be out chopping one another to pieces with machetes it still wouldn't be a very efficient situation because everybody would be the enforcer of natural law themselves. This is the Lockean story, as you know. So if I were in here lecturing to you, I'd have to worry maybe somebody's grabbing my car and making off with it. So I would have to find some way to protect my car while I was in here doing this, and maybe I could do it, but it's going to be a very inefficient thing for me to do. And so how am I going to do that? How is life going to go on if people can't even know that their property is going to be protected? Well, they're going to form protective associations. I'm going to say to some colleague, "I'll tell you what. You watch my car on Mondays and Wednesdays while I'm lecturing and I'll watch your car," a sort of block watch kind of idea, right? People are going to form associations to protect themselves and to protect their property because in the absence of that, it's a very inefficient, highly inefficient system.

So you would imagine there would basically be like block watch, but even that would be not particularly efficient because the truth is, not only do I not want to watch my car on Mondays and Wednesdays, I don't really want to watch somebody else's car on Tuesdays and Thursdays either, right? So what would happen is we would start to have a division of labor. We would start to have a situation in which we paid somebody to watch cars, and they would be sort of like little militias. They would be businesses that sold protection. And so you could imagine a group of us joining one association that promises to protect cars, but others would join a different association that promised to protect cars. So we'd have the New Haven business that sells car protection, but we'd have the Hamden one, and we'd have the Orange one, and there would be these different businesses selling protection for people's cars.

But, and this is one of Nozick's most important analytical claims with application to politics, he says, "The thing about coercive force — protection — is that it's a natural monopoly." What do you think he might mean by that, anyone? It's bringing an economist category to think about a non-economic topic, but what do you think he might mean? Anyone want to try this? It might seem puzzling. Think about a country in which there are many militias like Lebanon in the 1980s or Russia after the collapse of the Soviet Union where you've got these organized crime syndicates, more or less, or Chicago, for that matter, during the heyday of organized crime. What happens when you have multiple entities selling protection? Yeah, take the microphone.

Student: They start fighting with each other.

Professor Ian Shapiro: They start fighting with each other, why? You're dead right, but why do they fight with each other?

Student: It's like fighting over territory in a way.

Professor Ian Shapiro: Territory, what else?

Student: If one member gets in a fight with a member from a different group they have to protect that member and so does the other group, so they have no other choice but to fight each other.

Professor Ian Shapiro: Exactly right. I mean, you just go and watch a movie like the Godfather, or Goodfellas, or any of those and you know what the dynamic is. I say to you, "You pay me protection money and I'll make sure you're taken care of," but then some bigger thug comes around the next day and says, "You might think Shapiro can protect you, but what do you think that wimp on the Yale faculty can do for you? Forget about it. You're going to pay me, and what's more you're going to pay me much more." And so that's going to go on, and how will it end? Generally what happens? Yeah?

Student: [inaudible]

Professor Ian Shapiro: Exactly. In civil wars somebody wins, usually, or else they drag on but eventually somebody wins, right? That's the claim about a natural monopoly force. For coercive force to be a good, it has to be exercised as a monopoly. For coercive force to be a good, it has to be exercised as a monopoly, and that's one claim Nozick wants to make, and the other one, which is just as important is, "It is the only natural monopoly." Coercive force is a natural monopoly, where we unpack that to say, "In order for it be a good, it has to be exercised as a monopoly, and there's no other natural monopoly."

This morning when I was coming in, Glenn Beck was complaining. How many of you know who Glenn Beck is? Yeah. Who's Glenn Beck? Somebody want to tell us, who's Glenn Beck? Anybody? Yeah?

Student: He's a conservative talk show host and just a social commentator in general.

Professor Ian Shapiro: He's a conservative talk show host and social commentator who sees himself as kind of disciplining the Republican Party to keep it close to what he sees as conservative principles that are defined in a strongly libertarian way. And so what was his complaint this morning? His complaint was that Mike Huckabee had Michelle Obama on his show, or did some event with Michelle Obama, agreeing with Michelle Obama that obesity is a big problem in America. And he said, "How dare Mike Huckabee do that? Of course obesity is a big problem in America, but that doesn't mean it's an invitation for the government to get involved in stopping obesity. The government should only do one thing; protect us from the bad guys." In that sense he was — he's probably never heard of Nozick and all of Nozick's argument, but he was embracing this idea that coercive force is the only natural monopoly.

So Nozick wants to say, if we go back into our thought experiment, he wants to say, "Because coercive force is a natural monopoly somebody's going to win. They're going to either buy up the other protective associations, or defeat them, wipe them out, or marginalize them, make them irrelevant by being so much more powerful that nobody pays attention to them. So in effect you're then going to have one dominant protective association, right?

Once you have one dominant protective association it's something pretty much like a government, but still there are going to be some people who don't recognize it, and these are the people that Nozick calls independents. And Nozick spends a lot of time discussing these people, and you might think, "Why?" There's this very long and difficult to understand chapter on the incorporation of independents into his system. And you will find it confusing to read and you'll think there's something wrong with you that you can't follow it. Actually even though most of what Nozick writes is extremely clear, the confusion is Nozick's, so you shouldn't beat yourself up too much. And I'm going to unpack it in more detail on Wednesday what he's saying and why it matters, but this is the basic intuition: he has to worry about independents for two reasons. One is just to complete his account of how a government would form, but the other one is normative because remember that the social contract argument depends on the idea of consent. Remember we said the utilitarian tradition is maximizing happiness, the Marxian tradition is about ending exploitation, the social contract tradition is about consent as the basis for political legitimacy.

So even if the whole story about force being a natural monopoly is correct there are still going to be sort of loony, principled anarchists out there, who don't recognize the legitimacy of the state, you have to worry about. Nozick, writing in 1974, isn't thinking about the sorts of people we're thinking about today in this connection, and so he talks about some anarchist wandering around who wants to protect their own rights, and it has something of a contrived quality to it in his discussion. 

But think about, when you read "Independent," think Osama bin Laden or Mr. Stack who flew his plane into the IRS building the other day; these are Nozick's independents, these people. They say, "We don't recognize the legitimacy of your state. We don't recognize your protective association. We're not going to accept it." These people are a big problem for Nozick, as I said both as a sort of empirical theoretical matter; he's saying what would happen with these people, but then as a normative matter as well. 

So what is his point about compensation and all of that? I'm going to dig into that on Wednesday. I'm just going to tell you now, briefly, because we're out of time, what happens. He's going to basically say, "These people are going to be forcibly incorporated into the social order, and the theory of compensation is an account of what makes that forcible incorporation legitimate," and I'll dig into that on Wednesday. We're out of time now, so we'll pick up with that right at the beginning. Cheers.

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