PLSC 118 - Lecture 14 - Rights as Side Constraints and the Minimal State

Chapter 1. Evolution of the State without Rights Violations [00:00:00]

Professor Ian Shapiro: So you’ll recall from our discussion on Monday we were working our way through Nozick’s hypothetical social contract story. The thought experiment he asks us to engage in as a way of thinking about the social contract idea as a basis for political legitimacy. And he asks us, in effect, to suspend disbelief and work through this story with him holding out the promise that he’s going to show how the state can be legitimate.

And so he said, “Imagine a hypothetical state of nature, not consisting of pre-political people, but of people like you and me in a condition where there was no government,” and we would find that to be very inconvenient and inefficient because as Locke said, every single person would have to be an enforcer of the law of nature. Everybody would have to look after their own property. It would be highly inefficient. That, in turn, would lead to the creation of kind of block watch associations, mutual protective associations.

They would also, though, not be particularly efficient because we all know from reading Adam Smith that the thing that really increases efficiency is division of labor. And so some people would go into the protection business and sell protection full time, but because coercive force is a natural monopoly, and we know from the discussion last time Nozick agrees with Glenn Beck that it’s the only natural monopoly, eventually one of these groups would become dominant. And that he calls the — one of his slogans is, that’s the “ultra-minimal state.”

Now I will just pause here. You might say, “Hmm, well if that was true, if coercive force is a natural monopoly why don’t we have a world government?” I mean, if we went from militias to nations, why aren’t nations just militias in the world? It stands to reason, right? It’s just the same thing on a bigger scale. Does anyone wonder what Nozick might say? Anyone got any idea what Nozick might say in response to that? Otherwise it doesn’t seem very plausible. Either coercive force is a natural monopoly or it isn’t. No? Am I missing something here? What might Nozick say? He doesn’t confront this. It’s not anywhere in the book, but it seems like a natural question to ask, no? No? Anyone want to try this? Yeah?

Student: He might argue that because of kind of natural boundaries or even artificial boundaries that have been created that the two protection agencies are sort of separated.

Professor Ian Shapiro: Yeah, brilliant. I think you hit the nail on the head. I think he would say it’s conditioned by available technologies of force. So if it becomes possible to project force all over the world then we might get to the situation where we will have a world government that indeed countries are just like bigger militias within a country. And if there were the available coercive force to create a world government, it would be done.

The famous pacifist philosopher, Bertrand Russell, had a kind of Nozickian view of this. He had opposed World War II. He had opposed the creation of nuclear weapons, but as soon as we dropped the bomb on Hiroshima in 1947, Russell came out and said, “America should immediately declare a world government.” So he was Nozickian in his thinking, but what he lacked was the knowledge of a social scientist. He bought the clear-headedness of a philosopher, but it wasn’t constrained by the knowledge of a social scientist, because the mere fact that you have the capacity to destroy the world doesn’t mean you have the capacity to enforce obedience on the ground.

This is a lesson we learned in Iraq after 2003. Yes, we could obliterate the Iraqi Army, but that’s something quite different from actually being able to enforce the rule of law within Iraq on the ground, right? And it turns out, we’ll go into this in more detail a bit later, but although there is one respect in which coercive force is a natural monopoly in that, for it to be a good, it has to be enforced over a given territory, otherwise you just have the sort of situations we were talking about on Monday. Nonetheless, there are various economies of smallness in enforcement, and the community policing literature discovered this in urban context.

So it’s not as simple as it looks, but I think just from the point of view of what we need to complete the thought experiment here is that Nozick would indeed say that the reason we don’t have a world government is simply that the available technologies of coercion have not yet evolved. And so when it takes Hannibal’s elephants to get over the Alps they are a natural boundary in a way that they are not when you can lob missiles over the Alps. And so we should always think when he says “a natural monopoly over a given territory,” to some extent what counts as a given territory is going to be affected by available technologies at force.

And we could play this out if you think about the transition from the Italian city-states to modern Italy, a subversion of that, the changing technologies of force leads to the creation of larger units. But as the points I’ve just made suggest, this isn’t entirely straightforward and uniform, but it is one basic dynamic. So that’s, I think, what he would have said if somebody had raised that question.

And so you get a single dominant protective association within a given territory, although we’re agreeing that the notion of what counts as a territory is somewhat in flux and conditioned by technologies of force. That is, the dominant protective association has co-opted or marginalized all the others, and then you have a dominant protective association which he calls the ultra-minimal state.

But then there are these people, these independents, and he gives various colorful examples of them. But as I said, this was 1974. If we think about it in today’s world you can think about these as people who don’t recognize the legitimacy of the regime. So they could be people like the gent who flew his plane into a federal building in wherever it was, Texas, I think, a couple of weeks ago. It could be Timothy McVeigh who blew up the Oklahoma Federal Building, or it could be Osama bin Laden. These people are out there and they say, “Well, you might have your dominant protective association, but we don’t care because we don’t like it, we don’t recognize it, and we’re not part of it.”

And Nozick wants to say, “Well, just because coercive force is a natural monopoly, these protective associations can’t give their members protection if they allow the Osama bin Ladens and the Timothy McVeighs to run around out there.” So what are they going to do? They’re going to force them to accept the authority of the state. They’re going to force them to participate. They’re going to say, “This is the deal. Take it and you can be part of the association, or leave it and you’re going to be dealt with accordingly. We’re going to lock you up. We’re going to kill you. We’re going to do something to you,” right? That’s what’s going to happen because it’s the case that these associations cannot protect their members if they don’t do anything else.

I’m going to come back to that in a minute. So it’s just, at this level, it’s just a claim about what would happen, coercive force being what it is. And then you have what he calls the minimal state, AKA the classical night watchman state of liberal theory, the thing that Glenn Beck has in mind when he says, “The government should protect us from the bad guys and nothing else.” The government should protect us from the bad guys and nothing else. The night watchman state doesn’t do anything else.

In particular it does not redistribute wealth. It does not redistribute income and wealth. It does not go into those Pareto un-decidable zones. Think back to the Pareto diagram. And the reason it doesn’t go back to those Pareto un-decidable zones is that we have a very robust doctrine of individual rights, right?

Now you might say, “Well, why should we buy that?” And I think what Nozick would say is, he would come back with the doctrine of deep pluralism of values. There’s deep pluralism of values. We don’t agree. Some of us think we should have a welfare state. Some of us think we shouldn’t. Some of us think we should have universal healthcare, some of us don’t. We don’t agree about these things. And because we don’t agree about these things there’s not going to be the pressure to produce a redistributive state. We’re going to look at it, you know, one of his slogans is “rights as side-constraints on our actions.” We think of rights as side-constraints on what we can do to other people. We can’t elbow them as we go on our way to maximize our own utility. Rights are side-constraints. They’re not end-states. They’re not goals.

So I don’t want to give you unnecessary jargon, but I guess I’ll give it to you anyway. I should have put it on a slide. So the philosophical lingo for the difference between Nozick and Rawls, as we’ll see later, on the one hand and utilitarianism, at least in Bentham’s variance, on the other hand is deontological versus teleological, d-e-o-n-t-o logical, deontological, versus teleological, t-e-l-e-o logical.

And what is captured — deontological is a word that comes from the philosopher Immanuel Kant. We’ll talk more about him in connection with Rawls. I mentioned to you on Monday the basic notion here is affirm principles that you would be happy with no matter how they affected you. They’re not hypothetical imperatives. They’re not, “I’ll support private property if it makes me rich.” They’re rather, “If I support private property I’ll support it regardless of whether it makes me rich or poor,” right? It’s not dependent on any particular empirical conditions. You would affirm it no matter what.

And Kant’s famous example of a categorical imperative is the thing Nozick appeals to. “Respect people’s autonomy.” Don’t treat them simply as means to your own ends, but as ends in themselves. And he’s saying, “Well, if we want to respect people’s autonomy (this is just a very strong version of Mill’s harm principle) — if we want to respect people’s autonomy we can’t impose conditions on them that they don’t agree with.” And given this empirical fact of deep pluralism of values you’re not going to get a redistributive state out of my Robert Nozick’s little story. So that’s where it’s going to stop.

Now you could say, “Okay, what is really being established here? Why is Nozick walking us through this zigzag? I mean it’s, okay, it’s one way to spend a Monday and Wednesday morning between 10:30 and 11:30, but what is the point? What really comes out of this? Why is he doing this?” And I think that we need to go back through it a little bit more carefully now and see.

One of the things that he says is he’s telling us both an explanatory story and a normative story. What I said here is basically the explanatory story. He’s saying, “If you took people like us and you said, ‘What would happen if there wasn’t a state?’ they would create a minimal state and they wouldn’t create anything more.” There’s nothing normative in that yet, at least not obviously so. They would create Glenn Beck’s utopia and that’s all that they would do.

Chapter 2. Nozick’s Theory of the Only Legitimate State [00:15:50]

You could argue about whether or not he’s right about that and I’ll come back to that in a minute, but that’s not really Nozick’s whole agenda. His real agenda is normative. What he wants to say is, “They would do this and this is the only legitimate state.” He wants to convince you that this kind of a state, the classical night watchman state of liberal theory, liberal in the nineteenth-century sense of the term, libertarian we might think of it, I think, today, is the only legitimate state.

Now, if you said, “Well, why? What makes it legitimate?” the answer is that long and rather difficult to decipher chapter on compensation. I’ll give you the bumper sticker version first and then I’ll go back and walk through it. And you might think it’s tendentious, but philosophers’ examples often give philosophy a bad name. They create highly artificial examples that abstract massively from the real world, and people generally are not impressed when they try to connect it to real problems. My priors are to be suspicious of philosopher’s examples, but Nozick is an exception. He really was a brilliant guy, and he doesn’t do these things gratuitously. There are some interesting and consequential points that come out of this.

So here’s what he wants to say. This is the crucial set of moves, this one and this one. How is it crucial? What he wants to say is this: we know that this is going to happen, what could make it legitimate? We know it’s going to happen because coercive force is a natural monopoly. In fact, being hardheaded realists about power, no minimal or ultra-minimal state is going to permit the bin Laden’s and the McVeighs to run around threatening them. So they’re going to force them to join. What could make it legitimate for them to do that since these independents haven’t agreed to join, right? And Nozick does want to say agreement, consent, is the basis of all legitimacy. Seems like a contradiction.

So he says, “What if we put it in the following terms? What if we say to the independent out there, ‘You know what, you don’t recognize the legitimacy of our operation, but it’s too bad because there are a lot more of us than there are of you, and we’re going to force you to, we’re going to force you to participate, but here’s the thing. We understand that violates your rights, you as an independent are having your rights violated, but we as members are having our rights violated by our fear that you may blow us up. Maybe you won’t. Maybe you’re just a philosophical anarchist that wanders around the fields talking to horses and wants to be left alone, but we don’t know that for sure. We don’t really know that, and there are some people who want to blow us up out there. We know that. So everybody in our society, in our ultra-minimal state, is experiencing a decline of utility because you’re out there and you might blow us up. Fear, we’re experiencing fear. Now we understand that you, if you’re forced to join, you’re going to experience a rights violation, that’s true, but what if we could compensate you for it? We’re going to force you to join. What if we could compensate you for it and still be better off than we were not having compensated you and experiencing the fear?’”

Chapter 3. A Compensation Test That Is Compatible With the Pareto System [00:20:57]

So it’s a somewhat muddled discussion in the chapter. When people start reading what he says about compensation, they think he’s talking about the members being compensated rather than the independents, but the idea is the members could compensate the independents and still be better off. Now it doesn’t mean the members actually compensate the independents. Then there would be an obvious moral hazard problem, right? If my choice was to be a member and pay taxes or to be an independent and get compensated for being forced to join, nobody’s going to be a member. We might as well be independents and get compensated. So he’s not talking about actual compensation. Rather he’s saying, “I’m going to violate your rights; if in principle I could pay you enough to make you whole and still be better off than before I violated your rights then everything’s hunky-dory. We’re both better off in a Pareto sense.”

So what he does in that chapter is he works his way through various ways this might happen, and they all fail. They all run into problems. How would you figure the price, etcetera, etcetera, right? And then he says, “Well, it doesn’t really matter that I haven’t given a watertight account of compensation, but just let’s assume that some such account could be given, then we’d have solved the problem.” And he’s alluding here to about forty years of welfare economics that revolved around this idea of hypothetical compensation tests. Those of you who are interested the famous people were Kaldor, Hicks, Scitovsky, Samuelson, and many others. All were trying to figure out a compensation test that was compatible with the Pareto system as you know it.

Chapter 4. Neoclassical Utilitarianism: The Pareto Diagram [00:23:17]

So a way of thinking about it is we go back to our Pareto diagram and what we were doing when we were talking about neoclassical utilitarianism. Remember we said let’s suppose X is the status quo. We know this is Pareto superior. We know this is Pareto inferior, and we can’t say anything about the Pareto-undecidables, right? So the question is, is Y better than X for society. There’s no answer to that question, and Nozick’s endorsing that, right? He saying, “B will think Y is better. A will think X is better. Who are we to adjudicate between them? There’s no way to do it.”

But the people who are worrying about compensation were thinking about a different question. They were saying, “Well okay, we know we can’t say that Y is better than X for society, but couldn’t we say that Z is better than X. Although Z is Pareto un-decidable, it’s on the possibility frontier.” Remember the possibility frontier was the locus of points where it’s not possible to improve, right? So the compensation theorists were actually interested in these two parts of the Pareto diagram. They were saying, “Can’t we come up with some way to say that Z is a social improvement on X even though it’s Pareto un-decidable because it’s on the possibility frontier? Isn’t there some way to say if you move from off the possibility frontier to on the possibility frontier you can say it’s a social improvement?”

So in the lingo of welfare economics that was the project from Kaldor and Hicks, Scitovsky, Samuelson, and all of the others. They were looking for a way to do that that did not involve interpersonal comparisons of utility; really important that it not involve interpersonal comparisons of utility because if you make interpersonal comparisons of utility you’re violating consent, right? If you say, “Well, Z is better than X, but A doesn’t agree,” you’re violating A’s rights. So is there some way to do that?

And we see this all the time in eminent domain cases when the city buys up property forcibly against somebody’s will to build a road. There’s this endless to-ing and fro-ing about what is the value of the house, and the question is, can you figure that out without doing interpersonal comparisons of utility? And the problem with what Nozick is doing is that the answer is no. The answer is every compensation test that’s ever been devised involves coming up with a common metric, namely money, in terms of which you do the compensation, and because of that, you’re implicitly making interpersonal comparisons of utility. So the project of finding a compensation test that didn’t violate the interpersonal comparisons criterion failed, and you can’t actually do what Nozick wanted us to do.

Now you could say — here’s, again, an example of — the whole architectonic theory doesn’t work, but there still might be important insights that survive its failure. So you could say, for instance, “Okay, once we’re aware of that, we can say that even in the creation of a minimal state, there are some interpersonal comparisons of utility, namely those involved in judging whether or not it’s legitimate to incorporate the independents.”

And Nozick might make the following defense of what he’s done. He might say, “Well okay, it was a nice try, but still what’s left of my argument is the following.” Another Kantian dictum is, “Ought entails can.” Anyone want to tell us what that means? What does it mean to say, “Ought entails can?” Anyone know? When we say, “Ought entails can,” anyone want to guess? Yeah?

Student: The normative statements that we may make may create bright lines by which we can determine whether an action is or is not acceptable, and that’s like — by saying that we should or should not do something we create this bright line where on one side we should and on the other side we can.

Professor Ian Shapiro: You’re in the right direction. You’re making it more complicated than it needs to be. The basic idea is we can’t have a moral obligation to do something that’s impossible. We can’t have a moral obligation to do something that’s impossible, that’s the way in which “ought entails can” is usually interpreted.

Now some people say we shouldn’t interpret Kant that way. We should interpret Kant to mean when he says, “Ought entails can,” that if we ought to do something, we should find a way. I once had a graduate student who wrote a dissertation in which he said, “ ‘Ought entails can’ means that, ‘Ought entails must try as hard as possible.’” Well, that’s one way you could go with this, but that’s not what I have in mind here. What I have in mind here, that Nozick, I think, would say when confronted with the failure of the compensation tests to work without interpersonal comparisons, I think Nozick would say, “Well, ‘ought entails can’ in the conventional sense. We can’t expect people to do something that’s impossible, and for that reason what drives us, really, is the natural monopoly of force argument.”

Another way you could see this, you could say, “Well, so the problem with the compensation argument, compensating the independents is, we could equally say if the independents could compensate the members for their fear and still be better off that would be just as good, right?” Nozick’s saying the members experience the fear, they force the independents to join, and if they could compensate them and still be as well-off then it’s legitimate, but you could do the exact opposite. You could say, “If the independents could compensate everybody, pay everybody a certain amount so that they stop experiencing fear and still be better off.”

In effect Osama bin Laden did this when Al-Qaeda made a deal in the 1980s. They promised the Saudis that they wouldn’t do any terrorism in Saudi Arabia, and then the Saudi government left them alone. I mean, that eventually unraveled, but so essentially you could say that was a version of compensating the Saudi population for the fear and still being better off.

So Nozick would have to be indifferent between those two things if all that’s driving it is the compensation. I think what he would say is, “Well, in principle, yes, but in practice, because of the natural monopoly of force, it’s the independents who are going to lose. It’s the independents who are going to lose. There are fewer of them,” right? And in the event, just pursuing this example, in the event since both the Saudis and everybody else knew that Al-Qaeda’s ultimate objective is regime change in Saudi Arabia, it wasn’t a very credible promise, and indeed there were Al-Qaeda operations in Saudi Arabia in the late 1990s. So it wasn’t a very credible promise, and eventually after 9/11 the Saudis smelled the coffee and got onboard with the operation to try and stomp out Al-Qaeda.

So yes, in principle, if the independents could compensate blab-de-blah, and just be as well-off, we would be indifferent, in practice, because of the natural monopoly of force, the independents are going to lose. So ought entails can. It’s not possible to imagine a state of affairs in which the independents are tolerated, so we’ll accept that that is legitimate. In other words, the violation of rights in unavoidable, and therefore it’s not illegitimate. That would be the claim. Now Nozick would then say, “So my argument survives. My argument survives, because we’ve now supplemented the natural monopoly of force with ought entails can. There’s no way not to have the ultra-minimal state become the minimal state, so its legitimacy can’t be criticized for the violation of the rights of the independents.”

In a way it’s a bit reminiscent of Locke’s argument about majority rule that we’re going to talk about when we get to the last part of the course in more detail. What you know already about Locke from what I’ve told you in the past is that Locke says when there are disagreements about what natural law entails there is no earthly authority who’s allowed to settle them. Remember we went through this, right? So each person, in effect, has the right to enforce the law of nature, and indeed the responsibility to enforce the law of nature. God speaks to us all individually when we read the scriptures, and if you read them one way and I read them the other way, there’s no pope, there’s no king, there’s no magistrate who can tell us who is right. It’s one of the sources of Locke’s egalitarianism.

Another thing that Locke says, that I haven’t talked about yet but will get into more detail, is, so what actually happens in practice when people disagree? He says, “If you think the state is violating natural law not only do you have a right, you actually have an obligation to resist, but if nobody else agrees with you what’s going to happen? You’re going to be out of luck, right? As Locke puts it he says, “You should look for your reward in heaven,” i.e. if you take the view that the government is not legitimate, and you’re going to resist it, and nobody else agrees with you, you’re going to wind up being tried for treason and executed. That’s what’s going to happen, but this life is short and the next one’s eternal, so why worry, right? It’s essentially Locke’s view of the matter, right?

So the Nozickian independent is in the same position as a Lockean person who reads the scriptures to say that they must resist the state and very few others agree with them. They’re just going to get their reward in the next life. So be it. But if lots of people agree with you then you’re going to have 1688, then you’re going to have a revolution. You’re going to get rid of the monarch, right? So you can’t know for sure that people are going to agree with you, but that’s what’s going to happen. And in a way, that is exactly the same point Nozick is making. He’s saying, “There are a lot more people in the ultra-minimal state than there are in independent, so it’s going to go that way.”

There it is. It’s the nature of power, the nature of coercive force, and ought entails can, bingo. What about that? How many people find that convincing? Nobody? Nobody’s convinced? How many people find it unconvincing? Nobody. There are zero convinced, two unconvinced, and 136 undecided, like Massachusetts voters, you people. What’s wrong with it? Anyone want to…?

Student: Well, it seems that forcing the independents to submit to the minimalist state directly contradicts the pluralistic deontological values that it’s espousing, so it undermines the state at its very core.

Professor Ian Shapiro: And what does it contradict, the value of consent?

Student: Excuse me?

Professor Ian Shapiro: You say it directly contradicts the intellectual values he’s espousing — which value, the value of consent?

Student: The value of consent and how you said it should be minimalist because he believes in pluralism and because you can’t force someone, and like the Pareto thing, you don’t know.

Professor Ian Shapiro: Right, but his answer is ought entails can. It would be lovely if we could get everybody’s consent, but there’s no way to get everybody’s consent.

Student: Well then from that follows that the government should be able to enact other kinds of policies where ought may entail can and they can force people to do things.

Professor Ian Shapiro: So what would be an example? They would have to just tolerate these independents out there, yeah? There’s a little book I used to teach in this course sometimes by a philosopher called Robert Paul Wolff called In Defense of Anarchism, and he basically goes the way you were going. He says, “Consent is the wellspring of legitimacy. You can’t get unanimous consent for any state, so no state is legitimate,” at least he’s consistent, right? You can’t get legitimacy for any state so no state is legitimate. All states are illegitimate, finished, end of story.

Here’s, I think, what Nozick would say. He would make two points. He would say, “Robert Paul Wolff is an airhead because he’s forgetting about the difference between the philosophical game we’re playing, the thought experiment and the real world because in the real world there are two things that are different. One is the natural monopoly force argument we’ve already talked about, and the ought entails can limitation that puts on what’s possible.” And you might not buy that because you might say, if we had time to go back and forth, you might just say, “I just don’t buy that. States could protect themselves from independents without wiping out the independents. They could have policies of containment.” I even wrote a book about that. So we could go back and forth about that.

But I think the other thing that Nozick might say to Robert Paul Wolff is this. It would involve buying the critique of the social contract metaphor. He would say, “Well, we’re behaving as though not having collective action is really an option, but it isn’t because it’s always the case that we have some collective action regime.” The question is just, which one. So in any given situation if you require unanimity you privilege the status quo. We know that, right? The garbage-in/garbage-out problem, and if some people want to have a state and some people don’t want to have a state, if you start with a state then requiring unanimity to change, it harms the people who don’t want a state. But if you start without a state and requiring unanimity to change it, it harms the people with a state. So in either case you’re going to be harming somebody’s rights, violating somebody’s rights. So the bottom line is that anarchy, even if it existed, if we had anarchism, wouldn’t meet Wolff’s criterion of respecting everybody’s autonomy because there would be some people who didn’t want that.

Okay, we’ve got two minutes left so I’m going to leave you with what’s the beginning of a deeper puzzle about Nozick that we’ll pick up on Monday with. You could say, “Okay, we’ll grant it. We’ll grant everything you’re saying, Nozick.” But then, what if people start to say, “Okay, we’re now a minimal state, but a lot of us are afraid of unemployment, we see recessions come and go, and unemployment can suddenly shoot up to ten percent. I could lose my job, not be able to pay my mortgage.”

That fear reduces a lot of our utility, so we’re going to create unemployment insurance, and some people don’t like it. Some people would rather take the risk, internalize the risk, but you know what? We’re going to treat them in just the way you treat independents. So we’re going to say, “Well, we know you don’t like funding unemployment insurance, you’d rather internalize the risk, but you know what, there are a lot more of us than there are you and we believe we could compensate you for the cost in principle.

“Of course, we don’t compensate in practice. We believe we could compensate you in principle for the rights violation of forcing you who doesn’t want to pay for unemployment insurance to pay for unemployment insurance and still be better off. So tough luck, you’re going to pay for unemployment insurance and then all of us will be happier because we’ll be back on a higher indifference curve than when we were worrying about what might happen if we lose our job.”

And so the trouble with you, Nozick, is you’re too clever for your own good because either your argument doesn’t establish enough or it establishes too much, because if we give you this type of reasoning to get to the minimum state we can hijack exactly the same reasoning to get to the welfare state. We can just put it in this idiom of compensation for fear, and we can justify a more extensive state than you want. And so either your argument doesn’t get you the minimal state or it gets you too much of a state. We’ll start with that next time.

[end of transcript]

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