Nozick on Imposing Risk
ja...@inmet.uucp
[--Paul V. Torek torek@umich]
The invitation was either to defend Nozick or improve on him.
I'll try to do the latter.
>" ... one might place [rights] as side constraints upon the actions to be
>done: don't violate constraints C. The rights of others determine the
>constraints upon your actions." (29)
Except where rights significantly overlap, as is sometimes inevitable,
as illustrated by some pollution examples.
>"Political philosophy is concerned only with *certain* ways that persons
>may not use others; primarily, physically aggressing against them. ...
>Side constraints express the inviolability of others, in the ways they
>specify." (32)
"May not" together with "political philosophy" introduces an ele-
ment of ambiguity: *morally* or *legally* may not ? Should the
immoral be always illegal? I say, definitely not. Should society
and its laws be so arranged that they make physical aggression
*impossible* ? Definitely not. It is unethical; ways of prevent-
ing it may be even more unethical.
>"A line (or hyper-plane) circumscribes an area in moral space around an
>individual.
Only in some ideal space. In life, the areas overlap. Does that
mean that demarcating them is a bad idea? Not at all, but such
demarcation is necessarily approximate, and grey areas are inev-
itable.
>... the following question arises: *Are others forbidden to
>perform actions that transgress the boundary or encroach upon the
>circumscribed area, or are they permitted to perform such actions
>provided that they compensate the person whose boundary has been crossed*?
Ethically forbidden or legally forbidden ? If the area is, with
reasonable approximation, a "white" area of one person's right,
then *ethically* encroachment is forbidden, period.
If it is a "grey" area of overlapping rights, then side constraints
don't apply, and the ethical problem is that of maximizing a fairness
functional. Usually the best solution is some constructive compromise,
something creative and completely unexpected.
Now, *legal* problems. Insofar as the law is simply for the gui-
dance of the two parties, it approximates, imperfectly, the ethi-
cal principle. The imperfection in the "grey" case is obvious as
the creative solution can't be codified (but a list of precedents
may be helpful). In the "white" case a simple "shalt not" suf-
fices; but the difficulty and the necessary imperfection lie in
classifying the case as "white", since no two situations are the
same.
So far, non-coercive law. *Enforceable* law introduces a third
party (the state, the neighbors, the godfather) which is ready,
to an extent, to side with the "right" side. This opens a danger
of rights violation far worse than those under dispute. In no
case is such a law an even approximate embodiment of ethical
principle.
At most, it can be *useful* : utilitarian considerations may
morally justify it as long as ethical principle is not violated.
E.g., boycott, consisting of actions that are in themselves
within the actors' right, violates fewer ethical constraints
than imprisonment. Even so, any *punishment* violates an ethical
constraint, being a *malicious* act, *intentionally* causing
suffering. *Prevention* of crime - e.g., knocking out a bully -
is morally far superior to punishment.
It may turn out that some ethical rules *have* to be violated, to
avoid violating even more basic rules. This admission deletes
them from the list of side constraints, turning them into mere
desiderata. But if some kind of evil is necessary, it is no rea-
son to tolerate *another* kind of evil.
The following *ethical equality* axiom is proposed: if an act is
forbidden, as a matter of principle, to one individual, it is
forbidden to any other. E.g., if I may not impose a tax on you,
neither should the Congress. But if you are allowed to protect
me from a mugger by force, so is the policeman.
This sets a limit on the activity of those who enforce the law,
and of necessity leaves some ethical principles *unenforced*. It
leaves the world imperfect. So be it.
>... Let us say that a system forbids an action to a person if it imposes
>(is geared to impose) some penalty upon him for doing the act, in addition
>to exacting compensation from him for the act's victims." (57)
Such a system is morally obnoxious. All punishment is abomina-
tion. It may be a necessary evil (though I doubt it), but the
question belongs with that of the necessity of Hiroshima.
>----------------------------------
>Alert readers will note that Nozick has changed the subject. His question
>is an ETHICAL question, but he immediately proceeds to talk about POLITICAL
>systems, and never returns to the explicitly ethical question within the
>chapter. We, however, will keep the question "what is an *individual* to
>do?" firmly in mind.
>----------------------------------
Very true. He's changed the subject, and, as stated above, did it
in a morally offensive way. I'll insist on separating the two
even more sharply than you do.
>" ... Our discussion of the first question we posed near the beginning
>of this chapter -- `Why not permit all boundary crossings provided
>compensation is paid?' -- has led us to the second question posed there --
>`Why not prohibit all boundary crossings to which the victim has not
>consented in advance?'
Permitted *by whom* ? Prohibited *by whom* ? By one's conscience ?
Or by "Society" ?
>-----------------------------------
>Nozick has given NO reason for departing ONE WHIT from the recommendation
>of his `second question' -- at least not when we consider the ethical
>question. Accidents, perhaps, should not be punished by the political
>system; but aside from them the same goes for political theory. THIS IS
>THE NOZICK WHO TELLS US THAT INDIVIDUALS ARE INVIOLATE! So to repeat his
>question (slightly rephrased to be explicitly ethical): Why *aren't* I
>prohibited from all boundary crossings to which my victim has not
>consented in advance?
>-----------------------------------
You *are* - morally - unless there is a conflict of rights - and
using reasonable approximation. You are not constrained to *more*
than that, because this is *impossible*. And, as you yourself
say, no reason has been given to demand less than that.
This does not mean *at all* that "Society" has a right, by what-
ever means it takes, to exact from you the full value of your
moral obligation. The goal - restoring violated right - may or
may not justify the means. Usually it does not.
Conclusion: Nozick is not my kind of libertarian. He is a collec-
tivist, a state fetishist and a social engineer:
--Behind all his "Should X be forbidden or permitted" stand the
"We", the consensus, forbidding or permitting (collectivism),
--delegating that function to a State with a monopoly of coer-
cion, above moral rules that individuals obey (state fetishism);
--and a perfect social system is constructed from first princi-
ples by a master engineer, to constrain the rest of us to virtu-
ous behavior.
The state, the consensus and the author are presiding in a court
where the individual sits squarely in the dock.
By sheer chance, the perfect system has less government than the
current one. Lucky us. But, as you correctly state, even that is
achieved through an inconsistency.
Jan Wasilewsky
Paul V. Torek
article is my response to Jan W.; the rest answers questions on Nozick which
probably won't interest many readers.
>>" ... one might place [rights] as side constraints upon the actions to be
>>done: don't violate constraints C. The rights of others determine the
>>constraints upon your actions." (29)
>
>Except where rights significantly overlap, as is sometimes inevitable,
>as illustrated by some pollution examples.
>>"A line (or hyper-plane) circumscribes an area in moral space around an
>>individual.
>
>Only in some ideal space. In life, the areas overlap. Does that
>mean that demarcating them is a bad idea? Not at all, but such
>demarcation is necessarily approximate, and grey areas are inev-
>itable.
>>... the following question arises: *Are others forbidden to
>>perform actions that transgress the boundary or encroach upon the
>>circumscribed area, or are they permitted to perform such actions
>>provided that they compensate the person whose boundary has been crossed*?
>
>Ethically forbidden or legally forbidden ? If the area is, with
>reasonable approximation, a "white" area of one person's right,
>then *ethically* encroachment is forbidden, period.
>If it is a "grey" area of overlapping rights, then side constraints
>don't apply, and the ethical problem is that of maximizing a fairness
>functional. Usually the best solution is some constructive compromise,
>something creative and completely unexpected.
Although you have certainly distinguished your position from Nozick's,
this leaves a lot of questions unanswered. How do you identify which
areas are "grey"? How should one deal with conflicting grey-area-rights,
i.e. what is the "fairness function" that should be maximized? I'm not
asking for a justification of the principles you would use here (though
they shouldn't be ad hoc), just a description of those principles. One
that doesn't circularly use moral terms (e.g., "you should do what's
right" obviously wouldn't cut it).
>It may turn out that some ethical rules *have* to be violated, to
>avoid violating even more basic rules. This admission deletes
>them from the list of side constraints, turning them into mere
>desiderata. But if some kind of evil is necessary, it is no rea-
>son to tolerate *another* kind of evil.
Again, certain obvious questions arise. What makes a rule more basic?
>The following *ethical equality* axiom is proposed: if an act is
>forbidden, as a matter of principle, to one individual, it is
>forbidden to any other. E.g., if I may not impose a tax on you,
>neither should the Congress. But if you are allowed to protect
>me from a mugger by force, so is the policeman.
This sounds tempting even to a nonlibertarian like me, but I think you're
ignoring the fact that institutional rules and roles can make a difference
in what act is being performed. Whether an act counts as "act X" or "act
Y", or even whether it counts as an intelligible act at all, depends on a
social context. (See Alisdair MacIntyre's _After Virtue_ for an overdose
of this point.) Of course, there may be *some* descriptions of acts
which are social-context-neutral, but I see NO REASON to suppose without
argument that these are the only descriptions which can legitimately figure
in a moral theory.
---End intersting debate. Begin boring exegesis of Nozick. Hit 'n' now!---
>>"Political philosophy is concerned only with *certain* ways that persons
>>may not use others; primarily, physically aggressing against them. ...
>>Side constraints express the inviolability of others, in the ways they
>>specify." (32)
>
>"May not" together with "political philosophy" introduces an ele-
>ment of ambiguity: *morally* or *legally* may not ?
Since the chapter I lifted this from was devoted to moral theory, I think
he means "morally may not".
>>" ... Our discussion of the first question we posed near the beginning
>>of this chapter -- `Why not permit all boundary crossings provided
>>compensation is paid?' -- has led us to the second question posed there --
>>`Why not prohibit all boundary crossings to which the victim has not
>>consented in advance?'
>
>Permitted *by whom* ? Prohibited *by whom* ? By one's conscience ?
>Or by "Society" ?
The context of the chapter suggests Nozick meant "society" there.
>Conclusion: Nozick is not my kind of libertarian. He is a collec-
>tivist, a state fetishist and a social engineer:
>--Behind all his "Should X be forbidden or permitted" stand the
>"We", the consensus, forbidding or permitting (collectivism),
>--delegating that function to a State with a monopoly of coer-
>cion, above moral rules that individuals obey (state fetishism);
These charges against Nozick, given your point of view, seem basically
fair to me.
>--and a perfect social system is constructed from first princi-
>ples by a master engineer, to constrain the rest of us to virtu-
>ous behavior.
This one doesn't. I don't think Nozick has claimed to find the perfect,
or even the best, social system. He fudges over a lot of questions and
admits it.
--Paul Torek torek@umich