Nozick's Argument for the Minimal State

0:00All right, I'm going to discuss with you this afternoon Robert Nozick's argument for the minimal state, which came out in his famous book, Anarchy, State, Utopia. I remember buying the book when it first came out near the end of 1974. It's hard to believe that that's nearly 32 years ago, but it is. What Nozick attempts to do in the book is to argue on the basis of the same natural rights that anarchist libertarians hold to be the ones that individuals possess, says that a minimal state is justifiable in what he claims that by what he calls an invisible hand process, people in an anarchist state of nature would find it by a series of steps in their interests, in their rational self-interest to establish what he calls sometimes a state-like Entity. Now, I think what I'm going to be doing is to offer, go through the steps of his argument and try to give some criticism. To anticipate the ending, I don't think his argument succeeds. I hope I'm not, for those of you who like suspense, I hope I'm not ruining

1:43Now, there are available, as you know, quite enormous literature on this Nozick's argument, which is the first part of his, of Anarchy State Utopia, part one of Anarchy State Utopia. We could mention, for example, the volume one, number one of the Journal of Libertarian Studies, which contains a well-known article by Roy Childs, and also has Murray Rothbard's article, The Immaculate Conception of the State, which has been reprinted in Rothbard's Ethics of Liberty. But what I intend is more of an internal criticism of Nozick's argument, Rather than use various views that are external to it and say that Nozick is wrong because he uses such and such an unacceptable principle, what I want to do is examine the argument just as he gives it.

2:49Now, I want to mention a few things about the starting point of his argument. The first question we have to consider is why is he taking the anarchist starting point? We could say, well, if the argument succeeds, then he would have shown that anarchists have a reason to support the state, that that isn't itself a justification state unless the anarchist starting point is correct. Of course, remember, he did think the anarchist starting point was correct. He is a libertarian, so he's not rejecting libertarian natural rights. He's arguing on that basis that we can support the state. Now, there's a very important passage here on page five where he gives his starting point.

3:40This is crucial, I think, to understanding the argument. He said, more to the point, especially for deciding what goals one should try to achieve would be to focus on a non-state situation which people generally satisfy moral constraints and generally act as they ought. Such an assumption is not wildly optimistic. It does not assume that all people act exactly as they should. So what he's starting with is a situation in which people generally observe the correct moral conduct as the libertarian theory demands. Not everyone does, but most people do. Now, when he argues, one point that also needs to be understood to grasp this argument, is that it isn't enough, and he's well aware of this, to show that there's a series of steps from this starting point of libertarian and Natural Rights, by which one could arrive at a state where these steps would violate no one's rights.

4:51We could readily conceive of situations where people start off in a certain situation and then do things that violate no one's rights, but we wouldn't think that this is a good argument for the result. For example, supposing all of you donated all your money to me, this would violate no one's rights. Each of you is free to do that if you or she wants, but it would probably, from everyone's point of view except for mine, not be a very good idea. So if Nozick's argument were just that there's some set of permissible steps by which we could come up with a state from a libertarian anarchist starting point, that wouldn't be sufficient.

5:41We could come up, say, with a more extreme case. I don't accept this view myself, but Nozick holds that, at least he held at the time this book was written, that the people could sell themselves into slavery, I mentioned this in 331, I think. So supposing everyone in the starting point sold himself into slavery, then we'd have a justification for the state that wouldn't violate anybody's rights according to Nozick, but again, this wouldn't be a good argument for the state. Nozick thinks he can do much better than that. He thinks he can show that by a series of steps, each of which is in people's self-interest and rational for them to take, each step will be an improvement on the previous step, but they'll wind up with a mistake.

6:39Now, there's one other preliminary. I mentioned that Nozick has an invisible, what he calls an invisible hand justification state here, following Adam Smith's famous metaphor, or if Mark Thornton is correct, it's really Kantian's metaphor of the invisible hand. What he means is that people aren't consciously setting out to establish a state, he just thinks this is what they're going to come up with, they don't have to consciously aim at it, but I don't think, contrary to what some people have claimed, that the invisible hand mechanism is integral to the justification, to his argument for the justification, it isn't that, it's because it's an invisible hand mechanism and nobody has planned it, in this, that that's part of the reason for thinking the state is morally alright. He just thinks that's just a feature of his explanation. That in itself doesn't add, in his view, to the moral weight of the argument. It's just a feature of his argument.

7:47So the argument, his argument has three main stages, and the first of these is where he, what he says is, again we're starting from the anarchist starting point, we start trying to get to a dominant agency. So what he says in here is, again, we're starting off just as, say, Murray Rothbard would, with people have libertarian natural rights. So one thing they can do, and they probably will do, is establish private protection agencies. So we'll have in a free society various private protection agencies in competition with one One another each will be trying to attract customers and he's assuming these are all in a particular territory. He doesn't say exactly how large the territories he has in mind are. We can assume he means something like a temporary nation. He doesn't really specify exactly how large the territories he has in mind are.

9:05Now, then he says, well, what's going to happen if, say, let's imagine, say, I steal something from, let's say I find some books in the library here that I like, so I take them and steal them, And then the authorities here find out about it and they go to their protection agency and try to get some sort of action against me. I suppose I'm in a different protection agency. What's going to happen? Well, one thing that can happen, suppose the agencies don't agree on whether I'm guilty of theft. Say, my agency finds me innocent and won't agree that I should pay any penalty, and the other group says, no, I was guilty, then one thing that can happen is that the agencies will simply fight it out, and Nozick thinks that, and this is one assumption that some people have challenged, it's certainly a controversial one, he thinks that if agencies disagree or If people disagree and they can't resolve a dispute, then they're free to use force to impose their own view of the matter.

10:30They don't have to settle matters. It might well be that it's more to their advantage to come to some sort of agreement, and Ludwig has thought of this point and will come to what he says about that shortly. In the first part, he's thinking that the agencies will clash because they can't resolve a dispute. Now, he thinks that it's likely that some agencies will tend to win disputes of that kind. So, what happens if that's true? Say, there's an agency that tends to win disputes over other agencies.

11:18Then, he says, well, customers who will want to shift to that agency because they want it to be the case that if they're in a dispute with someone, If they get a verdict against someone, then the verdicts that they get will be enforced. They won't want it to be the case that, say, they get a judgment against someone and nothing can be done about it. They'll tend to congregate to the agency that is able to win conflicts over the other agencies. So what we'll develop is what kind of spiraling effect by where more and more people will join the agency that tends to win fights with other agencies and this will further increase that agency's power because Nozick tends to assume a model where the more people are in an agency, the more clients have, the more it will be able to win fights with other agencies.

12:25I think he's just sort of a simplified assumption, but probably there's something to it, so it'll come out that one agency, if he's right, one agency will emerge as the dominant one in given territory. So, here he's making a distinction, as you know, between this particular good, mainly private protection, and other economic goods. As you know, one of the standard arguments against the free market is that there's a There's a tendency toward monopoly on the free market because of economies of scale.

13:17Large firms will tend to be much more efficient than firms that aren't very big and they'll take over, they'll be able to put these smaller firms out of business and then that will make them get even, they'll be even larger when they capture more of the market and they'll be able to expand further. So the result will be that one or a few firms will control most industries. This is very much the same kind of structure as Nozick's argument. Of course, we know that in the economic market for most goods, this isn't valid at all, that there's no general tendency for a monopoly to develop on the free market. You might monopoly a single seller of a good as far as economies of scale are concerned.

14:02This just depends on the conditions of the particular industry. Now Nozick is well aware of this and he mentions himself that this isn't true, this process of monopolization isn't true for most, for economic goods generally, he thinks though this is an exception because each agency is directly in rivalry with the other agencies He says that one agency's strength is determined by the other's weakness, so he thinks that the spiraling effect will take place in protection agencies, although not in other goods. He accepts the free market view for other goods, but he says this is an exception.

14:49His argument has something too, but it assumes, though there is a problem, it assumes that, in the first step, that there is some agency that will tend to win out in conflicts over other agencies. Then it goes from there and says, well, once this happens, then you'll get a spiraling effect. But what if it's not the case that one agency tends to win out in the first place? So he hasn't shown that he's right. There's this inevitable tendency that, even for his to take place, even in his argument, is right that once an agency tends to, well, establishes itself in some sort of primacy over others, there'll be a spiraling effect, continuing to favor that agency, he hasn't shown that the first step will always eventuate.

15:55Now, you probably noticed I left an important possibility out. I mentioned this at the first, but I didn't go on with it. This is the one I intended to, as I said, I would discuss later. What if the agencies don't fight it out at all? What if they settle their disputes or say, what if they establish some sort of procedure that in case of dispute between agencies, And there has to be some sort of, they established an appeals process to settle that. Murray Rothbard has this explicitly as a feature of the system he advocates in Ethics of Liberty, that there would be an appeals process. In fact, one might hold the view that an agency shouldn't or is obligated not to immediately resort to forcing conflict with another agency, that ought to try to settle the matter peaceably. Now Nozick, as I say, is very well aware of this. He said, well, you could have a situation where all the agencies have resolved on an

17:02appeals process. So you have, instead of having disputes between one another, you just have a number of different agencies and some particular model for some particular setup by which the agencies resolve their disputes through an appeals court. But what Nozick does, and this is, I think, a rather questionable move, is that he just says, well, he wants to consider that, the whole thing, namely all the agencies together, Plus, including the appeals process, the network of connected agencies, he considers that the single dominant agency. So he said, well, even if they all get together in this case, there's no one agency that always wins out and thus attracts nearly everyone in the territory as their customers, then we still have a dominant agency so you really so he is as I say he can whether is even if you I think he's probably wrong to call it a domination it really doesn't affect the argument all that much because the question the The key part of this argument is what can the dominant agency, regardless of what the internal structure of that agency, do to other agencies, protection agencies, or people who aren't in protection agencies in an attempt to defend their rights by themselves.

18:45This is the rest of the argument. Now, there is, however, one problem with this first stage of this dominant agency is that the argument could succeed too well. By that I mean, what we have to ask first, what is Nozick trying to, what is the conclusion that Nozick wants to come up with after I get, in other words, When we're supposing his argument is completely successful, when I've gone through the three stages, he wants to establish a state, or as he called it, a state-like entity. What is it that he wants to, what does he need, in his view, to have a state-like entity? Now, he says, in a state, the state has the monopoly of legitimate use of force. Only if there is use of force in the society, it must be authorized by the state.

19:47Say, we imagine a society in which, say, people are enforcing rights or protecting rights. If there's a state, this must be done with the permission of the state. It isn't that people will be enforcing rights just as they wish on their own. It's only with the state giving them permission. This doesn't have to be some sort of legal requirement, it just has to work out that way, that in practice they need the state's permission in order to enforce rights. So this is one feature that he wants to come up with, but not that the state can prevent other people from enforcing their rights without its permission.

20:39Now, the second feature, which I think is the one that's relevant to the point I want to make about maybe starting to go too far, is this. He says that the state or state-like entity will differ from a private protection agency in the free market, in that in a private protection agency, people pay for their protection. protection, you just get the protection you pay for, there's a market price for protection, you buy what you want according to the market rate, but in a state, the state is really providing protection for everybody and what it charges, what you pay in taxes, is not determined purely by the value of the protection to you, but the prices also will cover protection for other people as well. Everybody in society will be covered by the protection, so the price isn't a purely market price. And then we have also the not entirely unimportant feature that under state people have to pay. Your taxes are not a price that you choose to pay.

21:56the price that you choose to pay, you must pay this or you'll suffer various penalties. So in Nozick's system, it doesn't have, as you'll see, it doesn't have this feature of taxes, although people will be put in a situation where it's very unlikely they will not buy some of the protection services. But the feature that he does have in this state-like entity is that there's what he calls a redistributive part of the prices, the prices for protection aren't purely market prices. So this is where the problem I'm referring to comes up is, when I say the argument might go too far, supposing everybody joins the dominant agency, of Money, The Theory of Money and State, The Theory of Money and State, The Theory Part of the cost of protection. Everybody will be paying a market price for protection. So unless it turns out that the dominant agency doesn't cover everybody, then the rest of Nozick's process won't establish what he himself considers a state, because it won't have this redistributive aspect to its cost of protection.

23:47So he has to be careful that the argument, the first step doesn't succeed too well. Now supposing though we do get to the dominant agency just in the way he says, now we come to what I think is the most interesting part of the argument, how do you get from the dominant Agency to the State. Now here, this is unfortunately the case that the key part of Nozick's argument is in the fourth chapter called Prohibition, Compensation and Risk, and this is unfortunately because this is the most difficult chapter in the book, and Nozick was, when he wrote, he would not tend to write very systematically. He was someone who would continually throw out ideas of one sort or another. He would very often develop them in an extremely intricate way and then move on to something else. One reason for this, as Thomas Nagel pointed out in a very good article, it was actually a eulogy given for Nozick, Nozick was someone of immense critical power, perhaps the best of any philosopher among 20th century philosophers, certainly near the top.

25:19In his ability to find fault with arguments, he could always come up with a relevant counterexample. There was always a danger with him that he couldn't come up with theories that he himself wouldn't be able to destroy by his own counter examples. So what he tended to do, he was aware of that, so he tended just to stop at what he thought was an interesting structural argument and go on to something else. Because he knew that he himself would be able to come up with, if he would examine the matter In his book, Philosophical Explanations, he says, well, what he tries to do is come up to some interesting point and then stop.

26:09He doesn't carry the argument through in a very systematic way because nothing could really withstand his critical power. It's very hard to come up with counterarguments to his views that he himself hasn't thought of already and at least had some sort of response to even if you disagree with what he says. So now, but let's go on to the second step stage of the argument. argument. Now, what Nozick starts with is a topic that Rodrik was dealing with in his lecture this afternoon on punishment. Now he says, what is the appropriate, what we do when people commit certain crimes? Well, one obvious thing is we compensate the person who's the victim of the crime. Say, if someone has had something stolen from them, then he has to have the goods returned. So we have compensation is the obvious first thing we would think of in thinking of how crime is to be dealt with. But Nozick thinks this isn't a completely adequate solution. Now he has

27:37has various arguments against compensation as the total solution, one sort of, I'll just mention kind of as a side argument, it's a very interesting one, it's not the main argument that he uses in the justification state, he said, well, why couldn't I say something like, suppose I said, well let me give you an example where this applies to a quite practical problem, suppose the government says to someone, we're going to Take your house. We need this for some highway project. But we guarantee that we'll give you enough compensation for this so you'll feel exactly equivalent, at least as good as you did before. So if we take your house, we'll get you a new house that you yourself will say is good or maybe even slightly better than the house we took. Would this be all right? Well, Nozick points out No, it wouldn't be because one thing you could do if you, if the government didn't do that, you could hold out, you could, why shouldn't you get the full market value of your property?

28:49Why shouldn't anyone who wants to take your property have to pay you what you would be, what you could get for it in the market? It isn't that just leaving someone as well off as he was before, not counting this transaction, is sufficient, so you can't just do anything you want and then say, well I'm compensating the person, I'm leaving them no worse off than they were before. Nozick uses this whole apparatus that Austrians reject to have been difference curves. Nozick was one of the few who thought you could measure interpersonal utility, but that really is a side issue, So I say, Nozick has a very good point against full compensation, but the central point for the justification state is something else.

29:40Here he asks the question, in certain kinds of cases he says, why can we have a higher penalty than just compensation? Let us say that a system forbids an action to a person if it imposes some penalty upon him for doing the act, in addition to exacting compensation from him for the act's victims. This is not its definition of prohibition or forbidding someone, it's just a sufficient condition for forbidding. But it's very important, this is often this one, because people think, well, what knows it can ask the question, why can we prohibit certain activities?

30:30You'll say, well, isn't it obvious if you have a right to something, then you can prohibit violations of that right, where they prohibit just to mean stop people from interfering with your right, but this isn't the main thing Nozick means by prohibition. Prohibition just means this extra penalty besides compensation. So he said, why can't we, why in some cases can we prohibit crime to not just require compensation? So what he says there is, in In certain crimes, compensation seems enough. Supposing I told you that I was going to smash your car with a sledgehammer, but I guarantee you, you would get full compensation for it and get a completely new car plus costs for all your inconvenience so that you would not be worse off. Well, remember by his earlier argument, it wouldn't be all right for me to do that, but if I did that, say, that was a penalty for, say I had the penalty for theft, that I just had to restore what the person, or damaging property, that I had to restore what I'd taken, then the person wouldn't feel, who was convinced that he would get what he was, full compensation, wouldn't

32:04If you feel anxious about this, say if you knew that there were thieves about, but you'd always get your full compensation, you wouldn't get upset about that. You would just feel, well, you'd wind up no worse off than you were in the first place. But no, there's some crimes that aren't at all like that. Supposing, he gives this example, supposing someone were to tell you he was going to break your arm tomorrow, but you get enough compensation so that afterwards you'd feel as well off as you were before you had your arm broken.

32:50You would feel anxious about this, even though you knew you'd get full compensation. You'd feel certain kinds of activity, certain kinds of threats, arouse fear. It isn't only, though he doesn't confine this to physical fear, he mentioned this passage, I think, at page 70, he says here, But one should not leap to the conclusion that when it is known that compensation will be paid, only physical injury or pain is feared in view with apprehension. Despite knowing that they will be compensated if it occurs, people also may fear being humiliated, shamed, disgraced, embarrassed, and so on. Elsewhere he mentions, say, this will come in later, say if someone knew he was going to jail or might be subject to hard labor to pay off a debt, that might arouse this kind of fear.

33:49So Nozick suggests, well, because of this kind of fear, we would be justified in having an additional penalty besides compensation. would be justifying his use in prohibiting certain kinds of crimes that arouse these fears. Now, there's an obvious response to this that, of course, he's aware of, is, well, if certain crimes arouse this kind of fear, why couldn't that be included in part of the compensation, so that the person wouldn't be compensated for whatever fear he felt, as well as the material damage to him done by the crime. So, Nozick says, oh, there's a problem here.

34:36Supposing that, say, you know that there are murderers or people who are apt to commit violence who are in the particular area. And supposing you also knew that if someone committed violence

35:25No one considers, as he typical with embarrassed complication dislike, maybe anyone who was afraid could get claims against a particular person, but there'd be problems with that, is that some of the fear would stem not from one identifiable or few identifiable suspects, but from the general fact that there were a number of people who were likely to commit crimes. So you wouldn't be able to trace fear to particular people and demand that they pay for causing this fear. So, Ludwig said, well, this justifies for certain crimes having a certain penalty that these penalties that will try to prevent these, deter these crimes, will themselves arouse, are supposed, designed to arouse fear among the prospective perpetrators of crime.

36:26Say, if you know, for example, that you're going to be put in jail for a very long time or possibly executed for committing murder, that might make you fearful of doing it, so you wouldn't do it. Now, you might say, well, what does all this have to do with deriving the state? And it's this last part that is where you have a justification for the extra penalties that Raoult's fear is where the key is the key point in his second step derivation of what he calls ultra-minimal state.

37:11all right now you remember from what happened I didn't didn't work wait I did some which one oh good it worked I actually got something right I can't All right, so you remember from, I mentioned he's assuming that most people observe the moral constraints. So we'll know that each agency that applies these punishments to people will use a reliable decision procedure in trying people for crimes.

38:07Crimes, say, we won't find cases, say, where, supposing someone's committed murder, we won't find cases, say, where a protection agency will say, well, we're going to read tea leaves to say who, whether the suspect is guilty. We'll have, each agency will follow a reliable procedure and there'll be some, there'll be some general consensus on what the reliable Reliable Procedure. However, here's the crucial point. Nozick thinks there can be differences of opinion on what reliable procedure is. Some people, say, one agency might say, just as an example, this is not one he gives, some agencies might think, say, you should have A jury that has only 9 out of 12 people required, juries required for conviction, others might demand a unanimous verdict, so say the jury where you have only 9 out of 12 will be more likely to convict people than otherwise.

39:18So what Nozick suggests is that if an agency uses a procedure it considers reliable, but say, other people don't, other people regard it as unreliable, then this will arouse fear among people that they might be unjustly convicted of one of these crimes and subject to one of these punishments. Now, because if an agency uses an unreliable procedure, then remember it's an unreliable procedure from the point of view of not from the point of view of the agency appliance, from the point of view of clients of another agency, then there's a risk that some action that will generate fear of the kind I've already described.

40:17So because agencies might use unreliable procedures in this special sense, then we have extra fear generated. So what happens then? What Nozick thinks that, and remember, anyone has the right to prohibit someone else from applying a risky decision procedure to himself or if it's an agency to its clients. Remember what Nozick, and one thing that is crucial in Nozick's derivation, he isn't He isn't assuming that anyone has special rights that other people don't have. He isn't going to say, well, the dominant agency has more rights than other agencies or other people.

41:08Say, sometimes you get philosophers who do it in the most common, say, way of justifying the state by non-libertarians, will be to postulate special rights for the state. For example, Elizabeth Anscombe in a famous essay said, well, we need in a society to have some agency to settle disputes, and the need generates rights to that agency that other people don't have to settle the dispute. No, it has nothing like this. It says everyone has the right to prohibit unreliable decision procedures, but there's a catch to it. Other people don't have to accept your view of what an unreliable decision procedure is.

41:58So you could have a situation in which, and you will, according to Nozick, have a situation in which, say, supposing an agency that is not part of the dominant agency, not one of the dominant agency, uses a procedure the dominant agency considers unreliable. The dominant agency will prohibit that agency from using that procedure. From its own point of view, that agency will say, no, the procedure is perfectly reliable, but each agency can rely on its own view of the matter. So the dominant agency, since it is the agency that wins fight, will be able to prevent these These other agencies from using unreliable decision procedures on its clients, so according to Nozick then this will, when the agency does that, it will prohibit, it will turn out that it emerges as the only agency that will be able to deal with its own clients.

43:10Other agencies won't be able to try clients of that agency without getting the approval of the dominant agency for what doing so. Because the agency is dominant, its decisions on what the risky decision, what procedures are unduly unreliable will be the ones that dominate. So it will come about that there will be only a single agency that's really in effect controlling everything because no one else can apply decision procedures that that agency, that dominates the things that are unreliable.

44:00I think there are some problems with this. First of all, Nozick himself says that if an agency uses a procedure that's in what he calls in the neighborhood of the reliable procedure that the other agency had, the first agency couldn't prohibit it. It's just that the decision procedures have to be markedly unreliable from that agency's point of view to justify prohibition. But Nozick hasn't given us any reason to think that there'll be such a divergence of opinion on what are the reliable decision procedures, why should we just take for granted that all Other agencies besides the dominant agency will use unreliable decision procedures from the standpoint of the dominant agency.

45:03This is, unless it turned out that way, they wouldn't be able to prohibit these procedures. So what Nozick has done is just come up with a particular case in which, except if one accepts his assumptions, The dominant agency will be able to stop other agencies from applying unreliable decision procedures to its clients, but there's no reason to think that that's going to be a likely case, so I would think if you have to have a justification for the state, you have to come up with not just some bare possibility in which you could have a state arising through rational self-interest.

45:50by Observing Libertarian History, you'd have to think this is somewhat likely to happen. You wouldn't take a case where there's just some remote chance this could happen from ... You wouldn't say you've justified the state just because you could show there's some remote chance you could have a situation that Nozick suggests. Now, here's a further and perhaps more serious problem is that all that Nozick's argument would show is that if it works is that the dominant agency would be able to stop other agencies from applying unreliable decision procedures to its clients.

46:40It wouldn't stop the agencies from applying reliable decision procedures, taking reliable to mean ones that the dominant agency accepted as reliable to the clients of the dominant agency. It's just a restriction on procedures that the non-dominant agency could use. Nozick, I think, really gives away his whole argument on 104, where he says here, considering a case where a non-dominant agency has applied a penalty to a client's dominant agency, he says, less straightforward is the protective agency, meaning the dominant agency, appropriate Action After a Penalty Has Been Inflicted. If the punishers procedure was a reliable one, the agency does not act against the punisher.

47:38So he's admitting there that as long as the non-dominant agency uses a procedure that's on the list of the ones the dominant agency considers reliable, The dominant agency can't stop it from acting, so there's no reason what happens if, say, the non-dominant agency uses a more reliable procedure than the dominant agency does. There's no particular reason to think that the dominant agency will always have, from its point of view, the most reliable procedure. In fact, we could come up with an argument to the contrary that people who thought they might be victims of violent crime would want defendants, people who have been accused to have a good chance of conviction, they wouldn't want procedures that were the safest possible for the ones who were accused of these crimes.

48:47They might want one's procedures that would, if they were assaulted or victimized, they would find that the ones who had committed the crimes would be likely to be put away or dealt with. And as you see, this whole raises a related problem for the argument, is that when this This whole Nozick is assuming, when he says, well, these risky decision procedures, the possibility of unreliable decision procedures, will arouse fear. There's a risk of fear being that, just when he says there's a risk of fear, this justifies prohibition.

49:34We have to ask, who is going to be feeling the fear of possibly being, say, being caught in one of these unreliable decision procedures? It would be only people who thought they might be accused of one of these violent crimes, which we would suspect is not all that many people, most people, even in systems where So we have an unjust court system, a court system that uses unreliable decision procedures, don't fear being hauled before the court and being subject to some kind of unjust punishment. Punishment will arouse fear.

50:20These kinds of punishments, remember, just come up with these special crimes of violence. So, probably people wouldn't feel the sort of, generally wouldn't feel the sort of fear that Nozick is relying on as a reason for an agency prohibiting others from using unreliable decision procedures. Remember, he's assuming, which I think perhaps he hasn't taken all together seriously as he should in this stage of the writing, that most people observe the correct moral principles, So we won't have all that many crimes of violence to begin with in the situation he's postulating. Now one thing when he points out is, in the way he's considering this prohibition of unreliable decision procedure, he said, well, he thinks that what happens if, say, an agency does apply an unreliable decision procedure, then if it turns out that the person is innocent, say the person is retried by the dominant agency, comes out innocent, then of course the person who is the innocent person will get compensation and the non-dominant agency

51:40that applied the unreliable procedure will be punished, but knows it goes further. He said, well, what happens if the person is guilty, and he's tried by an unreliable decision procedure? Some people think that if you're guilty, well, then you really don't have any rights to be tried in a particular way. But Nozick thinks that still the dominant agency can prohibit the non-dominant agency from applying the procedure, get this extra penalty, even if it turns out that the person turns out to be guilty. In part, this is because knowing that people know this procedure is going to be applied, this will generate this kind of risk that I've taught about people become fearful.

52:38Remember, I've challenged that, but he thinks people become fearful. But he thinks even if it doesn't, say the non-dominant agency punishes guilty people only very rarely, and you don't have this kind of fear, he thinks the dominant agency could still punish the non-dominant agency for this particular kind of punishment just as a deterrent against it supplying it the punishment if people turn out to be innocent.

53:23Well, I'm not finding the passage I want, but take my word for it. It's there. Just one point here is important. When Nozick arrives at all these principles on when you can punish appropriately, what about risk, he's operating on a largely intuitive basis.

54:11He has certain kinds of intuitive judgments on what seems to be plausible. He doesn't have any kind of general theoretical argument. These are the correct principles. There are sometimes people who have interpreted differently, for example, Eric Mack in a very good article on Nozick's notion of unproductive exchange thinks that the reason the dominant agency can punish these other agencies for applying unreliable decision procedures has This has something to do with a particular section of the book called productive and unproductive exchange, but it really doesn't. This is just a notion that goes off on side issues very readily.

54:59This really isn't relevant. The productive and unproductive exchange section, although it's very important in other contexts, isn't really a crucial part of the argument here. Now, there's, however, so we have an ultra-minimal state. Now, is this a state by what knows it standards? Well, no, it isn't, because in it, everybody's paying, who is a client of the agency, pays for protective services, is just paying a market price for protection, whatever the agency charges. and the agencies prohibiting other people from enforcing their, using unreliable decision procedures, but it isn't extending them any protection, so we don't have any kind of this redistributive feature that I mentioned before as part of the concept of the state that knows it's attempting to justify, but there's a third step, and this is where we get to the middle, Now, remember, in the ultra-minimal state, the dominant agency is prohibited.

56:26People are not parts of the agency from other agencies and independence from using unreliable

57:06procedure, legitimate activity, namely protecting themselves or their clients. So what Nozick suggests is that if there's a situation where someone is conducting risky activity as part of some other activity that's justified, then the person whose activity is Prohibited has to be compensated in some way if he's disadvantaged. Say the person who can't use these risky decision procedures, then the person is left unprotected. Now supposing the person can't afford to buy protection from the dominant agency at the rates it's Charging, and the person is at a disadvantage because he can't protect himself, so the agency then has to offer him sort of a cut rate policy, and when it does that, it will charge its regular clients more to pay for the cost, so you have then this redistributive feature, you get to the state, you had previously the ultra-minimal state, you had the feature where the Domineer Agency is really the only agency able to protect other people. No one can use force without its permission, but it has to, now, if it's disadvantaged people, it has to compensate them by giving them a cut-rate policy, and you see, although they don't have to take it, they can refuse to pay for the cut-rate policy, it'd be very much their advantage to

58:57take it because otherwise they won't be protected, so we have sort of the equivalent of taxes. I think there are some severe problems with this step is that you remember what the compensation is for is just for not being able to use unreliable decision procedures. That doesn't, as I mentioned before, it doesn't prevent people from protecting themselves. They can use procedures that are reliable according to the dominant agency. So it's not clear that people would have to be compensated at all, so you wouldn't get to this minimal state at all from the ultra-minimal state, because the independents would still will be able to protect themselves even against clients of the dominant agency as long as they use a reliable procedure.

1:00:00So Nozick really hasn't established a case for compensation, and if that's right, the argument fails. Now, I think Nozick tends here a bit to confuse prohibiting a risky decision procedure from Prohibiting something altogether. He seemed to take it as if the particular decision procedures in agency were somehow essential to the agency, so that if you ban those, you're banning the whole agency, but I see no reason to think that's true. Now, one point also, and this he was well aware of, that if, say, the system worked the way it wanted, you had an ultra-minimal state, then clients of one independent agency could still act against clients of another agency, non-dominant agency.

1:00:58The state wouldn't be able to stop even one non-dominant agency from dealing with another non-dominant agency. So you could say, well, it doesn't have a monopoly of force, so it doesn't work on those grounds. But Nozick's answer to that, and remember he practically always has an answer, Every state should follow that policy, as long as people want to settle disputes among themselves, why shouldn't they be able to do so, and I think he makes a good case for that, but I think there's one point he's overlooked, is that if his argument is right, then one independent agency could try to ban what it considers the unreliable decision process, and the procedures of another independent agency. So we could have, if this argument succeeds, we could have more than one state-like entity emerging in the same territory, and that one of these, say, you have three agencies, dominant agencies, or the second agency, one that's least in power, so the second agency might be able to exercise state-like functions over the third one, and then this would seem like Nozick

1:02:19So he didn't really have the sort of monopoly system that he wants, that the second agency would also be able to exercise state-like functions against the third one, although, of course, not against the dominant agency. I see I'm a bit out of time now, and I would just conclude, although I just agree very much with the argument, I think this is definitely one of the great works of 20th century philosophy, so everyone should try to study it closely. Thank you very much.