A Few Comments On The Opening Sentence of Robert Nozick’s Preface To His Anarchy, State, And Utopia

7/20/18

On this statement by Robert Nozick in his  opening sentence to his Preface to Anarchy, State, and Utopia, which book I’ll cop to having stared at more than read, though I’ve read and listened to things about it. 

... ....Individuals have rights, and there are things no person or group may do to them (without violating their rights)...

I wrote this to a libertarian friend of mine:

......There are a lot of things you’ve said but at least for now I’ll piece off one of them, perhaps aptly because it seems the fundamental starting point for you.

On Nozick’s prefatory statement, and at the sure risk of me not getting the depth and breadth of his arguments, why isn’t it too bald? 

My thought is that the issue of natural rights as against rights by social conferral is *somewhat* like nature against nurture. That’s a stale debate and that issue is better understood in their dynamic and inextricable relation. Except that there is something more innate, irreducible  and invariable in the nature of one’s nature than in the idea of of an irreducible core of natural rights. 

In the former, one’s nature, very little will improve (say) given intellectual capacity or athletic ability or other kinds of basic talents. But rights can be taken away at the flick of a switch on some (good or bad) notion of the public good. That, as I remember it, was Meiklejohn’s argument against natural rights: the many instances of their curbing and, more rarely, evisceration speak to their vulnerability and how they can stand in fear and trembling before the power of the state. The idealization and the pure privileging of rights as such owe themselves to the existence of the necessary minimum of social consensus, the necessary glue, for any relatively free society.  Just as Richard Posner argues “the constitution is not a suicide pact.” 

So that’s one critique of Nozick’s statement. And it might be called an empirical critique based on the totality of all these many instances. 

Another is the theoretical attenuation inherent in isolating either rights from social conferral or conversely social conferral from liberty. Nature without nurture is the child raised by wolves, a lesser nurture I guess, an unsocialized zombie. Of course wiithout nature, there’s nothing to nurture. So the emphasis on natural rights taken to an extreme is fetishized individualism that cuts against what binds a state, a consensus sufficient enough to allow highly diverse individuals, diverse in all manner of ways, to live together safely. And, more obviously, the overemphasis on social conferral, the collective good, the overall interest over the individual interest and individual liberty leads to some form of autocracy, bending towards totalitarianism. 

So that  might be called an analytical critique. 

The analytical answer to that critique might be a model that sees rights and conferral, liberty and the common good (which is separable from equality, but might be located under equality just as a shorthand), the individual and the collective, as in constant never-to-be-finally-resolved tension, each with its necessary claims on the other, each always seeking to encroach on the other, with resolution being a series of case by adjusting and balancing. (I think this is Isaiah Berlin’s argument on rights—in which essay I can’t remember, that the assertion or imposition of some rights come at the expense or weakening of others, which goes hand in hand with his student Michael Ignatieff’s formulation of social policy as often a choice between the lesser evil in recognition of our fallibility and limited horizon for wisdom.) 

So maybe the the analytical critique raises what might be called a pragmatic critique.

I tried to get at some of these points by a different path in my note on what may be a contradiction in Nozick’s account insofar as that account was explained to me in the lectures I listened to a few years ago.....

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This is my note on what might be a contradiction in Nozick’s account:

..... ....Either this is a telling argument against Nozick’s  libertarianism or I'm missing or mistaking things.

Nozick argues that independents are to be forcibly incorporated into society. Even if their rejection of it is their right, they pose a danger to what they reject (thus on a utilitarian basis decreasing the happiness of those accepting society by increasing their fear.) They can live in society obeying its laws or be dealt with by the monopolizer of force if their rejection leads to law breaking and worse. Since ought entails can, there is no moral duty to do the impossible. On this basis, the state does not lose legitimacy by that forcible incorporation: it is impossible to deal with the independents otherwise. In one way of understanding this, that incorporation comes down to the sheer power of the state compared to the relative powerlessness of the independents. 

�Now, to take this one step further, what if a majority in the state want national health insurance. (Getting it increases their happiness.) What position can the minority take who oppose but are perforce required to help fund it through their taxes, or, even more pervasive, take the example of the welfare state? Does the state lose its legitimacy by forcing those opposed to these policies to support them by making the opposers pay their taxes? Does the reasoning for the forcible incorporation of the independents without sacrificing legitimacy lose its force in relation to forcing dissenters from welfarism without, the argument is, by analogy, losing legitimacy? I'd think that those who oppose welfarism would continue to insist on their opposition but would do so conceding legitimacy. 

�So if Nozick is:

�as I understand he is, a social contract theorist;

�and if he agrees that the basis of social contract theory is consent;

�and if he rejects any proposition, as I understand he does, advanced by some that since unanimous consent in any state is impossible the state, any state premised on deep individual pluralism, is therefore necessarily illegitimate;

�then his notions of consent and legitimacy necessarily brook majorities that hold to policies that he stands fundamentally against.

�If so, then what exactly is the core of his notion of  legitimacy, and what does that core do to the illegitimacy of the welfare project some argue against? Arguments pro and con specific policies on the basis of legitimacy run up against the concession of legitimacy to the state even as majority policies breach libertarians' central thesis of deep pluralism not to be trenched upon. And so, finally, arguments against say welfare policy can cite that central thesis, but can't with consistency, I don't think, assert the illegitimacy of that policy. Or can they?

�No doubt there are frailties in this reasoning. I'd be happy to see that set out...
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