Part of the "Critiques of Libertarianism" site.
Last updated 10/25/07.
Libertarianism, Nozick tells us in Anarchy, State, and Utopia, is a ‘framework for utopia’ (297-334). It is ‘inspiring as well as right’ (ix). Yet when we come to draw out the consequences of the view with which we are presented it is hard, at least at first, to understand why Nozick feels able to make such a claim. For many - - the old, the sick, the poor; generally those unable to fend for themselves - - the minimal state, inevitably accompanied by the purest possible free market, is not so much a dream as a nightmare. Critics of Nozick point out that he has depicted a utopia in which some might starve as a consequence of their lack of rights to food, while others legitimately let their surplus rot. Thus they claim that Nozick’s assertion that the minimal state is inspiring as well as right is grotesquely wrong on both counts.
In this essay I want to argue that the critics have exaggerated their case against Nozick. Nozick can answer some of the more obvious criticisms. But I want also to show that he cannot answer them all: in the end we should prefer the position of the critics. So first, I want to explore whether it is true that in Nozick’s world the poor might starve even in conditions of general plenty. In response I want to explore two reasons, one based on justice and the other based on charity, which are likely to keep the disadvantaged from starving in a Nozickian free market. Second, I shall argue that it is in any case wrong to criticise Nozick on the grounds that he advocates a pure free market economy, for this ignores the distinctive ‘hyper-liberalism’ of Nozick’s position. Finally, I shall explain why, despite the fact that Nozick advocates diversity, in practice his framework for utopia will lead to a form of pre- welfare-state capitalism. This is why, ultimately, the critics are right.
To begin with, it is necessary to say something about the minimal state, as Nozick conceives it. The attempted defence of the minimal state, of course, depends on some claims about rights which are developed throughout Anarchy, State, and Utopia. We each have absolute rights to life and liberty, in the sense that no-one may justifiably interfere with another’s life or liberty, except in cases of self-defence or legitimate punishment. These are negative rights of non-interference, not positive rights to aid or assistance from others or the state. Furthermore, by going through certain procedures we can come to acquire rights to property. However, the fact that we have these rights does not guarantee that they will always be respected. It is the task of the minimal state - - the night-watchman state of classical liberalism - - to protect us from each other and from external threat. The state is justified, thinks Nozick, only in so far as it protects people against force, fraud, and theft, and enforces contracts. Thus it exists to safeguard rights, and the state itself violates people’s rights if it attempts to do any more than this.
The distinctive nature of the minimal state is revealed in what it is not permitted to do, rather than in what it does, for all modern states include those functions performed by the minimal state. Where the modern state goes beyond this, it acts, according to Nozick’s libertarianism, without justification. Thus in the minimal state there is no central bank, no department of public works, no department of education, no instruments of welfare policy, and so on. These roles, so often assumed to be the proper tasks of government, will be undertaken by private individuals or firms, for the sake of profit or out of public spirit, if they are to exist at all in a Nozickian society.
The most worrying and striking difference between the modern liberal states with which we are so familiar and Nozick’s libertarian minimal state is that for Nozick there is no attempt to institutionalise poverty relief. The point is not that individuals can seek help only if they meet some sort of stringent deservingness condition - - a policy more and more contemporary states are returning to - - but that individuals cannot seek help from the state no matter how deserving they are. There are no justified mechanisms, according to Nozickian libertarianism, for transferring legitimately held wealth from one individual to another.
It is for this reason that it is often said that under Nozickian libertarianism the starving have no right to food, or to money that would allow them to buy food if that is how they choose to spend it. But is this observation correct? We have to ask, first of all, why it is that such people are starving. And quite obviously if the reason is that they have been dispossessed in a way which is illegitimate by libertarian standards then of course they have a right to compensation, not from the state but from whichever individual is responsible. But this is trivial and relatively uninteresting. The important question really concerns those whose rights have not been violated, or at least not in any obvious fashion. Typically these will be those unable to support themselves through their own work.
However in Nozick’s view in certain possible cases impoverished individuals will have a right to support even though they have not been dispossessed by force, fraud or theft. The relevant concept here is the ‘historical shadow of the Lockean proviso’ (180). To understand this we must make a brief detour through Nozick’s theory of just property acquisition.
According to Nozick any theory of property must have three principles: a principle of justice in initial acquisition, to explain how an individual can be the first appropriator of a good from nature; a principle of justice in transfer; and a principle of justice in rectification (for example, compensation for the victims of crime) (151). The relevant aspect here is the first part, justice in initial acquisition. It is quite clear that at the heart of Nozick’s libertarianism there are two fundamental notions: liberty and property rights, but this combination creates a problem. Earlier libertarians understood that there is some tension between these ideas, and, as we shall see, it requires resolution.
The apparent difficulty is easy to state. One person’s property right over an object is equivalent to everyone else’s lack of liberty to use the object in question without permission. If I have a right to my house, you may not use it without my consent. Thus one person’s ownership entails another’s lack of liberty. And this is clearer still in the case of the original appropriation of property. If a field is unowned then both you and I are at liberty to use it. The minute you appropriate it I can no longer use it without your permission. This gives rises to two problems. The first is a worry for any theory of property acquisition: what could you possibly do to any object that could justify these future restrictions on my liberty? Second, and of particular concern to a libertarian, if the acquisition of property rights and liberty conflict, how can we decide which to favour? The nineteenth century thinker Herbert Spencer, observing that the propertyless would have no rights even to place their feet on the ground, argued in his early work that liberty requires state control of property.
Nozick clearly believes that he can reconcile individual property rights and individual liberty, although he appears to show little understanding of just how acute the difficulty might be. He says very little about how to justify the property rights that are so fundamental to his position. But he does say something. His most developed discussion of justice in initial acquisition starts, like so many discussions of property rights, with a commentary on Locke’s famous ‘labour-mixing’ argument for property rights. Locke argued that as I have a right to my labour, if I mix my labour with unowned land by working on it I then come to have rights over that land.
Although Locke’s natural rights arguments seem highly congenial to a libertarian position, Nozick subjects Locke to rigorous and apparently devastating criticism. Nozick’s strongest counter-argument is the point that if I mix my labour with something unowned we might just as well view this as a way of losing my labour rather than - with Locke - as a way of gaining the other thing. A natural reading of Nozick on property is that he takes himself to have refuted Locke, although I must concede that the position is not clear.
However, Nozick does explicitly acknowledge that one point from Locke appears correct. Locke argues that one may permissibly appropriate from nature only if one leaves ‘enough and as good for others’. This is the Lockean proviso, which Nozick subsequently weakens to: ‘you must not make anyone worse off by your appropriation’. This is an attempt to head off the criticism that one person’s appropriation can have a detrimental effect on another’s liberty. Now although the Lockean proviso initially qualifies only first appropriations, Nozick recognises that subsequent transfers of holdings can in extreme cases have adverse effects on those not party to the transfer: most notably where someone acquires a monopoly in some vital good. (Suppose, for example, one individual managed to purchase a country’s entire water supply.) Accordingly Nozick introduces the idea of a ‘historical shadow’ on the Lockean proviso. This, I think, should be read roughly as the principle that ‘the system of individual private property must not make anyone worse off than they would have been in a situation where all individuals have legitimate access to all natural goods’.
After this detour I can now make my point. If someone is starving in the minimal state, yet in a ‘no-ownership’ world they would have been in a more advantageous position, then they do, in fact, have rights to compensation against all property holders (although not against the state) under the principle of justice in rectification. The Lockean proviso, or rather its historical shadow, would have been violated. Nozick seems to be of the view that in a free market system this would, in fact, rarely, if ever apply. Who, after all, would do better in the state of nature than they would be able to do under modern capitalism? We might ask, of course, whether we can make much sense of the question. But if we can, the consequences of the principle are largely a matter of conjecture, and some have even argued that very extensive welfare rights can be defended on this basis. The main point is that there are conceivable cases where the starving can have a right to food, even if they are not the victims of direct theft, and so on.
A different type of response is to concede that often the poor may find themselves without entitlement to food, but this does not mean that they will starve, because good-natured wealthier people will chose to help them. Here we must develop a distinction that is vital to libertarian thinking of Nozick’s kind: the distinction between enforceable rights, on the one hand, and what is morally required on the other. There are many cases where we might think that someone acted entirely within their rights, but nevertheless acted wrongly. To put this the other way round, we are often prepared to condemn someone’s action on moral grounds, yet concede that they should not have been forced by the state to act differently. The most obvious type of example concerns duties of emergency aid. If I see a fellow citizen collapse in the street then it would be very wrong of me not to go to her aid. Yet do we want to argue that this moral duty should be legally enforced? In most countries it is not, although, perhaps some people will argue that it should be, so for them let us consider another example. Suppose I promise to meet you for a night out, but at the last minute I receive a conflicting invitation which, I calculate, has a greater chance of advancing my career. In letting you down I act very badly, but would it really be right for you to have the right to sue?
Those still unconvinced might reject this distinction between the morally right and the rightfully enforceable, but for those who accept it, the only question is what falls on either side. For Nozick we draw the distinction at the bounds of the minimal state: we have enforceable duties not to interfere with each other and this is the boundary of our rights and thus enforceable duties. We may have many more positive moral duties of charity, humanity and aid, but these are a matter of personal discretion, just as, ultimately, it is a matter of personal discretion whether I keep my social promises. To break a promise might show contempt or disregard, but most people think should not be to break a law. Nozick relies on the same argument concerning aid to the starving. For the rich to refuse aid might be morally unspeakable, but to do so violates no ones rights. Hence the state has no place to enforce policies of welfare. And indeed in modern liberal democracies, we will only have those policies of welfare that the majority are prepared to endorse. But if the majority are happy to allow some of their earnings to go to help the needy then what is the problem? Why do we even need enforcement? These people can make voluntary donations. Hence the poor will not starve.
There are, of course, many reasons why we might want a system of tax and welfare benefits even in a society of the charitable. But the main point is that libertarianism is consistent with extensive philanthropy: indeed defenders of the free market often cite the rise of the welfare state as the cause of the death of large-scale philanthropic activity, as was experienced in the nineteenth century. On the other hand, it might well have been that there would have been no calls for the development of the welfare state had private philanthropy been adequate. Note, though, that for Nozick this empirical dispute misses the point. Whether or not the welfare state does better at eliminating poverty, the fact is, for a libertarian, the welfare state is morally wrong and should be dismantled.
But why, exactly? It is worth contrasting Nozick’s position on this with three other common libertarian arguments. The crudest is a consequentialist argument: that the overall consequences of the minimal state are better than any alternative. This relies on tremendous faith in the free market and the idea that any interference at all will disrupt its smooth and efficient functioning, with generally disadvantageous consequences. It is, though, hard to justify such faith.
Slightly more subtle is a libertarianism based on value-subjectivism. Here the idea is that there are no objective values: ultimately all that exists in the realm of value are individual subjective preferences. Against this assumption it is then claimed to be wrong to inflict one person’s preferences on another. Now as my belief that the poor should be fed is, on this view, only a subjective preference which you might not share, it would be wrong for me to try to get the state to enforce my preference for everyone. This would be an unjust use of state power: state coercion for redistributive purposes on this view, can have no justification. The coherence of this view can be questioned, as can its founding, subjectivist, assumption, although here is not the place to do so.
Finally I should mention a libertarianism based on Kant’s distinction between acting for the sake of duty and acting in accordance with duty. For Kant an action has moral worth only if I freely choose to do it: only if I act for the sake of duty. However once we institutionalise duties of charity we take away the option of choosing to act in that way. We are forced to act in accordance with duty but find ourselves unable to act for the sake of duty. Thus, on this view, the extensive state diminishes the possible scope of virtue and so impoverishes us all from a moral point of view.
What is interesting from the point of view of this discussion is that Nozick does not offer any of these arguments. Essentially his argument against the more than minimal state is that each person has the right to dispose of his or her own person, and, particularly his or her property, however he or she wishes, provided that the similar rights of others are respected. The more-than-minimal state, it is argued by Nozick, violates these rights. What grounds and justifies such rights? On this Nozick is largely silent.
Should we, then, criticise Nozick for advocating the minimal state, and with it a type of pure capitalism which, in principle whether or not in practice, can do great harm to the relatively disadvantaged. But in response, it is important to understand the difference between what libertarianism permits and what it requires. Although libertarianism is obviously intended to permit unrestrained capitalism it does not recommend it, for it recommends nothing. People are free to make whatever arrangements they wish. Thus Nozick says ‘in this laissez-faire system it could turn out that although they are permitted, there are no actually functioning ‘capitalist’ institutions’ (321). In fact there are important aspects of contemporary capitalism which would actually appear inconsistent with libertarianism. Nozick discusses the question of whether the minimal state could allow limited liability. But what about corporate personality? And provision and regulation of the money supply? Each of these seem essential to capitalism as we now know it, but it is far from clear that they are consistent with libertarian principles.
Be this is it may, however, the main point is that libertarianism does not require capitalism. Libertarianism is concerned, essentially, with what people may claim from each other as of right, and this comes to non- interference with self and property. But superimposed upon this structure of rights Nozick envisages that many different forms of voluntary association may flourish. Within these associations individuals may undertake commitments to each other which go far beyond those than those one has in the minimal state. Voluntary communities may enforce regulations that the state may not. Some communities will make membership of that community conditional upon their special regulations, perhaps enforcing positive obligations to others, or regulating religious, sexual or intellectual practice.
Within the minimal state, then, there is room for utopia: not a single vision but a pluralist utopia. Indeed the idea that any single version of utopia could possibly suit all is one that Nozick challenges. How, he asks, would one design a single society that would be best for ‘Wittgenstein, Elizabeth Taylor, Bertrand Russell, Thomas Merton, Yogi Berra, Allen Ginsburg, Harry Wolfson, Thoreau, Casey Stengel, The Lubavicher Rebbe, Picasso, Moses, Einstein, Hugh Heffner, Socrates, Henry Ford, Lenny Bruce ... you and your parents.’ (310). Thus we begin the see the motivation for the idea of the framework for utopia.
The idea of the framework for utopia is to provide a description of a background against which it is possible to design and build your own utopia -- provided you can find enough people similarly motivated to populate and pay for it with you. In the minimal state one group could create a communist village in which all resources are shared, whilst another group creates a perfectionist society in which material comforts are spurned in the search for high culture. A third might try to set up a model free market, and so on. In the minimal state, then, groups of individuals may voluntarily create various sub-states. There need be no argument about whether society should be organised on socialist or capitalist lines. Those who favour capitalism can live in a capitalist sub-state; those who favour socialism a socialist one.
It is not easy to see how a more extensive state could provide such a neutral framework as this. Those, for example, who wish to live in a certain style of rugged self-sufficiency may find that property taxes to supply goods for which they have no desire makes it impossible for them to live out their dream. In general the more extensive the obligations people have to the state, the more difficult it will be for them to live certain simple sorts of lives. Furthermore, many non-minimal states have historically prohibited certain social, sexual and economic practices, and thereby rule out styles of lives thought desirable by some of their citizens.
Thus a non-minimal state, it appears, will rule out the possibility of living in certain sorts of communities. Of course, even in the minimal state it may be hard to find enough other people who have the inclination and resources to live out a particular utopian fantasy. But although it may be hard, it is unlikely to be illegal, or ruled out by one’s obligations to the state, as it may be in a non-minimal state. It is this hyper-liberalism that we need to bear in mind when we are told that the minimal state is inspiring as well as right.
But is it attainable? In particular what would cause particular communities to flourish or die? Peter Singer raises the question: ‘could a community that wanted a lot of redistribution survive the departure of the wealthy members whose moral principles are weaker than their desire for wealth? Could it withstand the pressure of applications to join from down- and-outs left to starve in neighbouring communities run by ruthless capitalists?’
There are several related points to be made here. The first is one of practical organisation. If a community bases itself on some moral principle of equality and humanity it will be hard to find principled reasons to refuse applications from poor outsiders who will wish to join. Aside from the fact that this will dilute any community assets it also makes the community prey to exploiting free-riders, who will seek the benefits without shouldering the burdens. Secondly, if the community believe that there really is a moral duty, binding on all, to help the poor, it is hard to see why they should allow wealthy people to leave simply because they are tired of living in a form of society that redistributes their wealth. However let us leave such moral issues aside. The question at the moment is whether we can predict some sort of development in Nozick’s utopia. Suppose we imagine a situation in which we have a large diversity of communities, just as Nozick envisages. Now suppose we let people come and go as they choose. What will tend to happen to the diversity?
Our first point is that those that allow people to exit taking their property and which practice extensive redistribution will soon get into difficulties, especially if they allow those without property to join. No such community could survive for long. Restrictions on ‘ capital flight’ would be essential, as would immigration controls, and both policies may undermine the ethos which would have led people to join in the first place.
A related point is that some choices will be irreversible. If the members of our little self-sufficient farming community decide to sell up in order to try their hands as corporate raiders they may find if they attempt to return to their former lifestyle that land prices have risen as a result of other people’s choices and so their former style of life is no longer available.
Taking this observation further we see how - despite Nozick’s denial - the free market will entirely permeate the framework for utopia. To exist at all communities must own land and other property, whether as a voluntary collective or as individuals. Ownership will pass from person and person, and some will be tempted by offers from outsiders for their property. If a community’s property is sold to an outsider then it is likely that the community will dissolve.
Ultimately communities will compete for existence just as firms do in the market. Some will find a niche, but in general we can expect a law which favours the economically most fit: those with the most purchasing power. Just as many people now bemoan the fact that every city centre contains broadly the same types of shops and the same range of services, we are likely to see a drift towards homogeneity among communities within Nozick’s framework for utopia. This need not be because anyone wants homogeneity: possibly no one does. The argument is that it is likely that some sort of ‘invisible hand’ will lead the framework in a single direction. There is absolutely no reason to believe that we will be able to retain a wide diversity of communities, and plenty of reason to think that successful market-based models will increase in size and power at the expense of those that try to embody alternative values. If the rich can flee with their property at any time, it is hard to see how we will avoid ending up with something like a barely regulated free market economy with rather haphazard voluntary philanthropy: nineteenth century capitalism. And this, of course, is just the result that Nozick’s critics warned us of. It is not that Nozick is a direct advocate of such a system, but that it is to this that the system he does advocate is likely to lead.
This is a pity. In one way Nozick is right: superficially at least, the idea of the framework for utopia is inspiring. But if, as I have argued, the diversity it appears to offer will largely collapse into an out-dated form of market economy it will fail to inspire for long.
In principle not only is Nozick’s system is compatible with a very wide range of social and economic conditions, it is compatible with the thought that many conflicting types of conditions may exist at the same time, ultimately under the auspices of the minimal state. Nevertheless we must conclude that any actually existing diversity is not likely to remain for long, and in all probability will collapse into an unregulated free market in which the poor will generally have to rely on the arbitrary philanthropy of the rich, rather than any rights to assistance. Thus although Anarchy, State, and Utopia is not a direct argument for a particular type of free market, this is what Nozick’s libertarianism will deliver.
Department of Philosophy
University College London
Many of the arguments of this paper are drawn from, and developed in more detail in, my Robert Nozick: Property, Justice and the Minimal State (Cambridge: Polity, 1991). An Italian translation of this paper appeared as ‘Libertarismo e utopia nel pensiero di Robert Nozick’, Studia Perugina , 1 1996 pp. 85-98.
Robert NOZICK, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974).
Page references in the text refer to this work.
Herbert SPENCER, Social Statics (London: Chapman, 1851), p. 132. The chapter in which Spencer argued this was removed from later editions of the book.
John LOCKE, Second Treatise on Civil Government, section 26
see, for example, David LYONS, ‘The New Indian Claims and Original Rights to Land’ in J. PAUL ed. Reading Nozick, (Oxford: Basil Blackwell, 1982), pp. 355-79.
I. KANT, Groundwork of the Metaphysics of Morals, in H.J. PATON (ed.) The Moral Law (London: Hutchinson, 1948).
Peter SINGER, ‘The Right to be Rich or Poor’, in J. PAUL (ed.) Reading Nozick, p. 38.
Webbed with permission from the author.