Steve Davies Is Education Director at the Institute of Economic Affairs. He has also worked for the Institute for Humane Studies in Virginia and has been a Visiting Fellow at the Social Philosophy and Policy Centre at Bowling Green State University, OH. A historian, he is a graduate of St Andrews and taught for thirty years at Manchester Metropolitan University. He has been active in the libertarian movement since his time at St Andrews in the seventies when he was a part of the early years of the turn to free market policy with people such as Michael Forsyth, Eamonn Butler, and Madsen Pirie.
By Jock Coats
In the nearly four decades since Harvard University Professor Robert Nozick wrote what is probably his best known work, “Anarchy, State and Utopia [ASU]” (1974), much of the academic debate it has generated has focussed on its role as a response to fellow Harvard political philosopher John Rawls’s “A Theory of Justice” (1971). This debate, therefore has concentrated on the second of the three distinct parts of ASU in which Nozick advances his own libertarian theory of distributive justice (Vallentyne, 2011) and on his critique of Rawls’s influential liberal, redistributive version (Meadowcroft, 2011).
However ASU can also be read as a seminal work of libertarian theory in its own right, and arguably forms a marginally more moderate response to his contemporary libertarian-anarchists’ work such as that of Murray Rothbard (1970 & 1973), David D Friedman (1973) and Morris and Linda Tannehill (1970). Nozick developed libertarian-conservative themes beginning to emerge in the mainstream American political arena in the 1960s culminating in the 1964 Republican presidential candidacy of Senator Barry Goldwater (Goldwater, 1960).
This part of the libertarian intellectual debate tends to concentrate more on the first part of ASU, in which Nozick sets out his theory of how, beginning from a “state of nature” position (1974: Ch 2), at least a minimal, or “night-watchman”, state will inevitably emerge through a natural “hidden hand” driven process of consolidation of protective services into a “dominant protective association” (Ch 3). This would eventually achieve a Weberian “monopoly of the legitimate use of physical force within a given territory” (1919: p1), a de facto state.
In this paper, then, I wish to examine Nozick’s idea that such minimal state is inevitable and that therefore the institutions and norms that will emerge should be accepted and planned for, and argue that, in fact, he doesn’t adequately justify this contention. I intend to try and demonstrate firstly that his night-watchman state is not inevitable; second, that such an outcome would be precarious in that once the monopoly of violence is attained there is nothing stopping it engrossing itself to become the larger, activist state he seeks to avoid; and third, that by contrast, free market mechanisms of competing protective associations would adequately guard against such a monopoly whilst producing better justice with more liberty.
Whilst such a task may at first seem like an exploration of an arcane obsession of a tiny libertarian-anarchist minority against the very idea of a state I believe it is a vital debate for political philosophy. As Hans-Hermann Hoppe writes, “[A]mong the most popular and consequential beliefs of our age is the belief in collective security. Nothing less significant than the legitimacy of the modern state rests on this belief” (2003: p 335). If a state cannot even be justified in Nozick’s minimal role of “protecting all its citizens against violence, theft, fraud and to the enforcement of contracts” (1974: p26) those whose theories of justice appear to require such a “basic structure” of a state, such as Rawls’s (1971: p 7), may need to examine again the kind of institutions that could achieve their aims.
The Invisible Hand or Immaculate Conception?
Nozick postulates that in a pre-political “state of nature”, because free individuals will find it inconvenient to enforce their own “natural rights”, to “bodily integrity, to freedom of movement and expression, to justly acquired property” (Miller, 2002: p 12) a variety of competing “protective associations” providing security, arbitration of disputes and enforcement of penalties, for a fee, will develop. Further, that by a “hidden hand” process, economic incentives, such as economies of scale and the postulated advantages of having arbitration dealt with under one set of procedural rules, will make customers gravitate toward the largest and most powerful firm in a given geographical area. This will find itself eventually in a position to define dominant procedural rules and to prevent its smaller competitors from enforcing judgements made under different rules that disadvantage its customers.
From this ultra-minimal state, in which, thus far, the dominant agency permits competing agencies to operate so long as they adhere to its acceptable rules, those other agencies will enter a “declining spiral” (Nozick, 1974: p 17) and the dominant agency will likely buy out the smaller agencies’ customers by compensating those agencies and their customers for restricting the market. At this point, because it can now both set the fees for everyone and use some of those fees to compensate these “independents” it has taken on all the characteristics of a minimal de facto state: it can, in other words, effectively levy tax and redistribute it to the losers in the protection market. Since nobody’s rights are violated by this free market process, or, if they are, they are justly compensated, such a minimal state is legitimate and has emerged by purely voluntary, market directed means (Miller, 2002: p 14).
Mark Friedman, however, suggests that “virtually every political theorist who has examined Nozick’s demonstration regards it…as a failure” (2011: Ch 4). Rothbard, for instance, criticises Nozick’s story on the grounds that no state in history has emerged in this benign, “immaculate conception” manner, and that on the contrary, “every state where the facts are available originated by a process of violence, conquest and exploitation” (1977: p 45). Friedman (Mark) further suggests that in denying competing agencies the right to operate under their own procedures, the dominant protection agency itself exercises a “procedural ‘imperialism’” (2011: Ch4) that is inconsistent with the assertion that the resulting minimal state fulfils Nozick’s own criteria of emerging voluntarily and without violating others’ rights.
The Precarious Protection Agency
Other criticisms of Nozick’s model contend that it is a precarious solution. On the one hand, essayist Roy Childs uses the “invisible hand” metaphor himself to show that, if it is not to violate the rights of other, emerging entrepreneurs to compete in the market, it is likely that it itself will end up devolving back into a free market of competing agencies. The dominant agency may, like other monopolies, become inefficient, with a bloated bureaucracy fuelled by its ability to dictate terms in the market such as price and services offered. New competitors will emerge, even if initially they have to operate as under Nozick’s ultra-minimal state, using the dominant agency’s approved procedures so as to be acceptable to customers choosing to remain with the dominant agency (Childs, 1977: p 26). These new competitors may spot a niche, offering a small neighbourhood a specialist service, or focussing on one part of the market such as commercial contract enforcement only, or personal security only.
On the other hand, the minimal state, if it succeeds in maintaining its monopoly, has all the economic incentives for would be exploiters to take control and expand its operations to their advantage. As Hoppe notes, such an organisation, a nascent government, “is the ultimate judge in every case of conflict, including conflicts involving itself” and has every incentive not merely to protect and resolve conflicts between its “clients” but to define and provoke conflicts that can be resolved to its own benefit. It can decide unilaterally “how much security to produce” and what to charge for it in order to maximize its income and minimize its effort (Hoppe, 2006). Over time, all the economic incentives suggest that this will far outstrip Nozick’s idea of a limited state and shift away from discovering just, emergent law into producing its own legislative law creating artificial winners and losers according to the interests of whoever comes to control the dominant agency.
Either way then, this minimal state is precarious. It can either not survive intact and will devolve again into competing free market agencies, or grow to serve particular interests in an environment in which conflict over control of the agency’s government is all but inevitable.
Acceptable Alternative Arrangements?
In the remaining part of this paper, I wish now to outline in more practical terms how the private production of law and security might operate. As I argue elsewhere (Coats, 2011), state produced law and enforcement suffers by being a monopoly, with inherent conflicts of interest between itself and both the victim and the perpetrator. Moreover, history, as Bruce Benson demonstrates, shows that state involvement in the production and enforcement of law has consistently been motivated not by a desire better to protect or provide restitution for victims on injustice, but to produce revenue for the state (Benson, 2011: Ch 3).
As long ago as 1849, Gustave de Molinari described the market principles that he suggested applied just as much to the production of security as to any other human need: “That in all cases…it is in the consumer’s best interest that labour and trade remain free, because … [they] … have as their necessary and permanent result the maximum reduction of price”; “that the interests of the consumer should always prevail over the interests of the producer”; and therefore “that the production of security should, in the interests of the consumers of this intangible commodity, remain subject to the law of free competition” (Molinari, 1849).
It is perhaps remarkable that the institutions and organisations that might effectively provide security, arbitration and enforcement have survived this long onslaught by the state. Indeed there is considerable evidence that they are in fact thriving in the face of a state apparatus that has become expensive, bureaucratic, and is riddled with incentives that lead to abuse by police, legislators, prosecutors, judges, special interest and lobby groups and those responsible for administering punishment (Benson, 2011: Ch 5 & 6).
Private security guards far outnumber government police in many countries and consumers are usually forced by the lack of restitution to victims in the system to make provision against our own losses in the form of insurance. It is common in commercial contracts, and especially in international transaction where more than one state legal jurisdiction is involved, to make provision for private, mutually agreeable arbitration of disputes, often by trade bodies, rather than state courts.
ContraNozick, actual physical conflict is expensive and often counter-productive: who would wish to be a customer of a security force that went about its business using violence? (Murphy, 2010: p 22) In arbitration services, who would agree to arbitration by a firm with a reputation for bias in favour of customers of one’s opponent’s protection agency? (p 15) Such arbitration firms would likely quickly fail in a free market.
At the same time, only those laws that customers demanded, and were prepared to pay for by patronising arbitrators that offered them, would be produced and enforced (Friedman, 1973: Ch 29). Continual negotiation between competing insurers, arbitrators and enforcers on behalf of their customers would “discover” appropriate norms to apply to different types of cases and appropriate, usually restitutive, penalties. Insurance agencies could offer packages for particular groups in a community, so that adherents of different religions, for example, could apply their religious laws when dealing with each other, but negotiate secular arbitration services when conflict arises with a non-adherent served by a different agency.
Such arrangements need not be so expensive as to exclude anyone from access to justice (even though it is evident that state enforced law disadvantages the poorest, either through non-enforcement or lack of access to quality legal representation). If you are not likely to be a criminal, in a system in which a perpetrator and his agents are the ones who rightly pay the costs while victims receive just restitution, premiums are likely to be low for mutual neighbourhood protection services. For the uninsured, entrepreneurial prosecutors, not unlike the “Associations for the Prosecution of Felons” operating in England in the 18th and early 19th centuries (Friedman, 1995), could enjoin in choses in action to prosecute on the uninsured’s behalf and take a proportion of the restitution.
Finally, modern technology tend to make all of this more efficient: databases of precedent help to ensure judgments do not stray far from established norms, but allow flexibility for those norms to develop as with customary law or Common Law. Judgments and penalties databases enable subscribers and their insurance agencies effectively to ostracise perpetrators (or adjust premiums for future insurance) who do not fulfill judgments against them, much in the way that credit reference systems operate currently.
State created and enforced law is inherently riddled with conflicts of interest, monopoly and public goods grounded incentives for abuse, and regularly fails to provide justice for victims, in the sense of restitution to make them “whole” again as far as possible. As if that were not enough, the victims, as well as other tax payers, rather than perpetrators, pay most either through increased insurance costs, or simply maintaining them in prison.
I suggest that Nozick’s minimal state is, in fact, the unattainable utopia, precariously balanced between devolving back to free market competition or growing into Leviathan. Many of the institutions needed for the private production of law and its enforcement already exist, have considerable historic grounding and are in regular and growing use, if not presently in the enforcement of domestic legislative or criminal law.
If I have been able to demonstrate even a little of the potential of a private law based society, it should be evident, for political philosophy in particular, that this common justification for the state cannot be sustained. In addition, if voluntary institutions can replace such basic human needs as security, they can also be developed to implement solutions for other needs currently assumed to be only within the power of a state to deliver, including a better distribution of economic welfare in a community (Chartier, 2013: p. 328).
Benson, B.L., 2011. The Enterprise of Law: Justice Without the State. 2nd edition, Oakland, CA: The Independent Institute. (Kindle e-book edition).
Chartier, G., 2013. Anarchy and Legal Order. Cambridge: Cambridge University Press.
Coats, J.A., 2011. Anarchy in the UK. New Law Journal. Vol. 161, No. 7467, p 746. London: LexisNexis. Also available online athttp://www.newlawjournal.co.uk/nlj/content/anarchy-uk
Molinari, G. de, 1849. The Production of Security. Trans. 1977, J Huston McCulloch, available online at http://praxeology.net/GM-PS.htm Originally published as “De la production de la sécurité,” in Journal des Economistes (Feb, 1849), pp. 277-90.
Friedman, D.D., 1973. The Machinery of Freedom. New York: Harper & Row.
Friedman, D.D., 1995. Making Sense of English Law Enforcement in the Eighteenth Century. University of Chicago Law School Roundtable. Spring/Summer 1995.
Friedman, M.D., 2011. Nozick’s Libertarian Project: an elaboration and defence. London: Continuum International (Kindle e-book edition).
Goldwater, B., 1960. The Conscience of a Conservative. New York: Hillman Books.
Hoppe, H-H., 2003. Government and the Private Production of Defense. In: H-H Hoppe ed, The Myth of National Defense: Essays on the Theory and History of Security Production. Auburn, AL: Ludwig von Mises Institute.
Hoppe, H-H., 2006. The Idea of a Private Law Society. Web page athttp://www.lewrockwell.com/hoppe/hoppe16.html
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Miller, D., 2002. The Justification of Political Authority. In D Schmidtz ed., Robert Nozick. Cambridge University Press.
Murphy, R.P., 2010. Chaos Theory: Two Essays on Market Anarchy. 2nd Ed. Auburn, AL: Ludwig von Mises Institute.
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Vallentyne, P., 2011. Nozick’s libertarian theory of justice. In: R Bader & J Meadowcroft eds, 2011. The Cambridge Companion to Nozick’s Anarchy, State, and Utopia. Cambridge University Press.
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This essay can also be read here at the author’s website.
By Eric Field
The ‘Great Authors in 10 Quotes’ is an ongoing series meant to expose libertarian-leaning readership with some of the most noteworthy thinkers in the classical liberal, libertarian, and anarchist traditions. The challenge is finding material deep enough to reflect an author’s thought, while still being accessible for a brand new reader. We encourage readers to leave comments linking to other written works and videos by the author.
Karl Hess (1923-1994) was an American political philosopher, libertarian activist, journalist, survivalist, professional welder, and speechwriter for both the Republican and Libertarian parties. Abandoned by his Pilipino colonialist father, he was raised by his strongly Catholic and classical liberal mother in a manner reminiscent to today’s unschooling movement. Hess dropped out of formal schooling at the age of 15 in order to become a professional journalist. Hess wrote the 1960 GOP platform and served as the primary speechwriter during Senator Barry Goldwater’s 1964 presidential bid. Following the purge of many prominent Goldwaterites from GOP leadership after the 1964 defeat, Hess became a libertarian anarchist under the influence of Murray Rothbard.
By Keith Preston
Whenever I write on the subject of race, I always feel compelled to include evidence of my own anti-racist credentials. Race is a subject where frank but civil discussion is all but impossible in contemporary society. I am always amused by the “hate” mail that I get from knee-jerk racist fanatics and knee-jerk anti-racist fanatics alike. One group calls me “nigger lover” while the other labels me a “fascist”. These juvenile slurs reflect the simple-mindedness of those who hurl them rather than any sort of accurate perception of my actual views.
Private property is the foundation of free market. Austrian School of Economics teaches us that every business which is in private hands works more efficiently and earns more money than any Government-owned corporation. Since economics laws are just as relentless as the gravity, any attempt to fight them must inevitably end with a disaster. It seems that this basic truth begins to crack a thick wall surrounding the Government offices. It has been announced that Royal Mail was intended for privatization. On this occasion it should be reminded why libertarians prefer privately held companies.
Margaret Thatcher knew what she was doing. Thanks to her policy of rapid privatisation, almost all Government-owned corporations were sold at the market. There are several reasons for that. First of all, it lies deep in the human nature that an individual cares more for their own property than for public goods. This is a psychological conditioning that cannot be changed by any ideology. Since people look after their own business, which is a form of property, with a greater care, it is a logical consequence that this business is usually more successful than one owned by the State. Individuals working in state-owned companies tend not to apply themselves to their work because they do not directly benefit from it. As a side effect, customers are offered poor standard of service which is never an issue in privately held companies.
Moreover, it is a physical impossibility for the State to efficiently administer hundreds of bodies and as a result appointed CEOs are usually bureaucrats with nether experience nor motivation. Therefore, privatisation is the policy we seek. Private businesses are bound to compete with one another which always results in high standard of service. What is more, free access to the market, as opposite to the sectors with the State monopolies, provides a higher level of employment. The Government role in providing services should be strictly limited to the areas where it is absolutely necessary. All the other branches should remain in private hands as only this way a full potential of the market can be used.
The bottom line is always the same – Government should stay away from the economy as far as possible. It is a widely know truth that solutions introduced by the State are usually worse than the actual problems they are designed to remedy. Accordingly, the fewer regulations constrain the market, the better it functions.
If you follow me on Facebook, you know that I support state recognition of same sex unions. I, like most people my age, have several gay friends. I also have gay friends who have been in relationships that would otherwise constitute a common law marriage, left those relationships, and subsequently found themselves facing difficult legal issues. “How do I get my spouse off the mortgage?” “My car is in his name, I make the payments, but he’s threatening to take it away. What do I do?” If my friends had been in a “normal” opposite sex marriage, their issues would have been resolved by laws governing the division and distribution of martial property. It is the lack of access to those laws that is causing a great deal of controversy.
I first read George Orwell’s classic novel 1984 in 1968, when the date he used as the title of his book still seemed far in the future. I read Orwell’s book one slow summer in the heat of central Florida. Neither we nor anyone we knew could afford air conditioning, and so I read the book outdoors in the shade of a century-old oak tree. The book affected me profoundly.
Many of the terms Orwell coined in his masterpiece such as Big Brother, doublethink, thoughtcrime, Newspeak, and memory hole, became part of our language over time. My favorite Orwellian phrase has always been “down the memory hole.” A memory hole was a garbage chute leading to an incinerator; it was used to dispose of inconvenient evidence of past events when the Party wished to erase those events from history. The Party was not a political party involved in running for office, but simply the state.
Professor and neuroscientist Dr. Carl Hart has written a book which should be of interest to anyone with an interest in drugs. Although largely an autobiography, “High Price” is not simply a personal chronicle of Hart’s difficult childhood, largely spent in a ghetto in Miami, or of his path out of poverty to become a tenured professor of psychology and psychiatry at Columbia University. The book’s subtitle promises to challenge “everything you know about drugs and society.”
The fundamental point made here with regard to drugs is that mainstream American society has consistently exaggerated their effects. Very few people in 2013 still believe that marijuana causes “insanity, criminality, and death,” or are afraid that “marijuana smoking by white women makes them want to seek sexual relations with Negroes.” Other drugs, though, have experienced a similar hyperbolic treatment more recently in much of the public discourse.