An Open : ’s Utopian Project

Dissertation

Presented in Partial Fulfillment of the Requirements for the Degree

in the Graduate School of The Ohio University

By

Avery F White

Graduate Program in Political Science

The Ohio State University

2019

Dissertation Committee

MacGilvray, Eric

Neblo, Michael

Turner, Piers Norris

1

Copyrighted by

Avery F White

2019

2

Abstract

How can we help solve the dilemma between living a good life and an ethical life? Doing so will have benefits for both the person in question and those they behave ethically towards, yet most people in American society tend to pursue the material good life of consumption at the expense of their own espoused . In this project, I propose a solution premised on the utopian thought of Robert Nozick, which I suggest is a form of as espoused by , , and Gerald Gaus. Nozick’s particular approach to utopia would dissolve loci of power that currently limit choice, and prevents them from choosing the otherwise appealing forms of life that allow the good life and the ethical life to be pursued simultaneously. Furthermore, Nozick’s approach is feasible due to its ability to piggy-back on the ideological power of . Although this utopian project requires going beyond Nozick’s own , we can find the resources to do so hidden within Nozick’s own writings.

Although it is the case that full instituting Nozick’s utopia society-wide may not be worth the necessary costs, a bounded form of such a society will go some way towards dissolving the apparent conflict between the good life and the ethical life.

ii

Dedication

For Anna and Esme

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Acknowledgments

I would like to thank Eric MacGilvray, Michael Neblo, and Piers Norris Turner for their support and advice over the course of writing this dissertation. I would also like to thank

Benjamin McKean, Jennifer Mitzen, Ines Valdez, and Alexander Wendt for their support throughout my time at Ohio State. Anna Shabalov provided extensive editorial assistance.

Jose Fortou, Austin Knuppe, Reed Kurtz, Anna Meyer-Rose, and Drew Rosenberg all provided help during the dissertation writing process. Chapter Two is based on a paper that was presented at the Ohio State Political Theory Workshop and at the annual

American Political Science Association conference, and I thank the participants of both for their helpful comments. Karen Hays, Spencer White, Henry White, and Justine Borst all helped immensely at home. Finally, Anna Shabalov and Esme White put up with me while I attempted to, and sometimes succeeded in, writing this dissertation, for which I thank them profusely.

iv

Vita

Education

2006-2010...... B.A., Middlebury College

2010-2013...... J.D.,

2013-2015...... M.A., Political Science, The Ohio State University

2015-2019...... PhD Candidate, Political Science, The Ohio State University

Publications

Morrison, James Ashley and Avery F. White. 2011. “International Regimes and War.” In

The Handbook of the Political Economy of War. Edited by Christopher J. Coyne and

Rachel L. Mathers. Cheltenham: Edward Elgar: 356-378.

Neblo, Michael and Avery White. 2018. “Political in Translation: Communication between Sites in the Deliberative System.” In The Oxford Handbook of Deliberative

Democracy. Edited by Andrew Bachtinger, John S. Dryzek, Jane Mansbridge, and Mark

E. Warren. Oxford: Oxford University Press: 447-462.

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Fields of Study

Major Field: Political Science

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Table of Contents

Abstract ...... ii Dedication ...... iii Acknowledgments...... iv Vita ...... v Chapter 1: Introduction ...... 1 1: The Good Life and the Ethical Life ...... 6 2: Stuck in Consumerism ...... 14 3: The Open Society...... 22 4: Nozick’s Utopia ...... 30 5: Overview of the Argument ...... 36 Chapter Two: Overconsumption as an Adaptive Preference ...... 41 1:What Is An Adaptive Preference? ...... 45 1.1: Elster on Adaptive Preferences ...... 46 1.2 : Nozick on Rationality and Imagination ...... 50 2: What’s Wrong with Adaptive Preferences?...... 52 2.1: Imagination, Adaptive Preferences, and Libertarianism ...... 54 3: Inverse Adaptive Preferences ...... 57 3.1: Testing the Concept ...... 59 3.2: Investigating Inverse Adaptive Preferences ...... 60 4: Is Overconsumption an Adaptive Preference?...... 64 4.1: The Pursuit of Wealth as an Abundantly Available Activity ...... 65 4.2: The Rational Pursuit of Wealth ...... 66 4.3: Consumption and Adaptive Preferences ...... 71 5: Constraints of Inverse Adaptive Preferences ...... 76 Chapter Three: Nozick’s Meta-Utopia...... 83 vii

1: Nozick’s Meta-Utopia...... 84 2: Application...... 93 3: Utopia’s Inhabitants ...... 97 4: Further Considerations ...... 107 5: Conclusion ...... 113 Chapter Four: The Minimal State and the Meta-Utopia ...... 114 1: Beyond the Minimal State ...... 117 1.1: Education ...... 117 1.2: Information ...... 119 1.3: Place ...... 121 1.4: Mobility ...... 122 2: Self-Ownership and its Discontents ...... 125 2.1: Nozick and Self-Ownership ...... 126 2.2: The Debate Over Self-Ownership...... 130 2.3: Moving Forward ...... 135 3: Conclusion ...... 138 Chapter Five: The More-Than-Minimal State ...... 139 1: The Basis of a Right to Self-Ownership ...... 141 1.1: Nozick on the Source of ...... 141 1.2: The Later Nozick ...... 144 1.3: A Libertarian Good? ...... 152 2: and the Good Life ...... 159 2.1: The Substance of Leading a Good Life ...... 161 2.2: Sacrifice ...... 167 2.3: Implementation ...... 172 3: Conclusion ...... 187 Chapter 6: Conclusion...... 188 1: The Necessity of a Much-More-Than-Minimal State...... 191 1.1: Norm Diffusion and Diversity ...... 192 1.2: Norm Diffusion and Homogeneity ...... 195 1.3: Valuing New Choices ...... 199 1.4: Choosing the Ethical Good Life ...... 202

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2: The of a More-than-Minimal-State ...... 209 2.1: of Association and the Freedom to Exclude ...... 210 2.2: Universal Rules ...... 215 3: Conclusion ...... 219 Bibliography ...... 222

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Chapter 1: Introduction

On the one hand, nearly every single source of human ethics, religious and secular, describes the good life of individual human happiness as one and the same as the ethical life of actively helping others, or at least not harming them.1 The empirical validity of this notion is generally supported by findings from positive psychology. However, in

American society, we are confronted by an odd situation – most people espouse a religious or philosophical ethic that identifies the good life with the ethical life, but most of those same people behave in a way that seems to identify the good life with maximizing material consumption. This disassociation between ethics and everyday beliefs and practices is problematic for two reasons. First, many Americans’ lives are not going as well as they could, by their own standards; they would generally be happier if they engaged more directly in pro-social activities. And second, American consumption practices are responsible for needless suffering – even if we believe free markets can be a source of social progress, the current pursuit of consumption directly harms others through its unsustainable environmental effects and fails to help others who might make better use of the resources being consumed.

1 I view ethics as distinct from morality – I am interested here in individual beliefs about how one should live, as regards a way of life, rather than morality, which is both broader in that it may be viewed as more than a matter of individual subjective beliefs and narrower in that it does not concern all aspects of our way of life in the way an ethic does. 1

Can anything be done to solve this dilemma? I will focus on one core issue, which I take to be a necessary but perhaps not a sufficient cause of consumerism – we have great difficulty in imagining any alternative ways of life that are appealing or desirable. The issue is not that we cannot imagine these alternative ways of life in the abstract, but that we cannot imagine living in such a way ourselves. If we identify the good life as one of material consumption, then the ethical life will often appear to be a sacrifice of that good life; unsurprisingly, in such cases many people will choose the good life over the ethical life. We therefore seem “stuck” in consumerism, despite espousing ethics that call such practices into question, having well-founded beliefs that those ethics are empirically correct, and having rights that prevent outside interference with our pursuit of such ethics. Because we are stuck in consumerism, we view the trade-off between the good life and the ethical life as something of a natural fact. But if we could actually imagine living alternative ways of life, then it seems plausible that we might be attracted to a way of life that allowed us to pursue the good life and the ethical life simultaneously, if only out of our own self-interest in the pursuit of happiness.

The problem, then, is that we lack the real opportunity to pursue a non-consumerist way of life. This is as much a matter of psychology as of our objective environmental conditions. I will argue that the most plausible political solution, working within the constraints necessitated by our consumerist starting position, is a form of “the open society.” The open society is a form of that emphasizes the expansion of real

2 opportunity for all; it is a society in which individuals have the maximum number of live options, compatible with everyone else having the maximum number of live options as well.2 This kind of society can be traced in explicit form to Karl Popper, and in spirit to

John Stuart Mill. More recently, the idea of the open society has experienced a resurgence in the form of libertarian and classical liberal theory associated especially with Gerald Gaus, who draws on Hayek more than Mill and Popper. In all these cases, however, the open society employs two mechanisms to achieve the expansion of real opportunities. First, the open society leverages human diversity in order to increase our of possible worlds. Second, the open society emphasizes individual freedom, which allows people to pursue different possible worlds alone or in voluntary groups.

These two mechanisms are theoretically distinct, but practically identical. It is through the exercise of freedom that we discover new possible worlds, and the discovery of new possible worlds opens up new opportunities for the exercise of freedom.

While the open society offers solutions to our consumerist dilemma, it suffers from two problems. First, current forms of the open society are not described in terms that render them desirable from a consumerist perspective. In other words, if we could push a button and achieve Popper’s or Gaus’ form of the open society, we would thereby go some ways towards opening up alternative ways of life that might dissolve the choice between the good life and the ethical life. But since we lack access to such a button, we need a form

2 Maximizing live options may or may not require ensuring that everyone has access to the same live options, or at least not all the same live options. That is, people may have their number of live options maximized without everyone having the exact same live options available to them as another person does. 3 of the open society that is itself appealing to people who are currently “stuck” in consumerism. Second, and relatedly, the open society is usually described in terms that emphasize its centralizing function – experiments are conducted, but then are gathered up and disseminated through some centralizing process, whether formal or informal. The open society, in other words, still places “public reason” at the center of . This is problematic, at least in practical terms, in a society where the intensity and diversity of reasonable views makes it difficult to come to any society-wide agreement, or even for citizens to engage with one another in any critically constructive way. In this kind of society, it seems more plausible to imagine “live and let live” carrying the day much of the time, which is at odds with the kind of progress-as-convergence that theorists of the open society have heretofore emphasized.

Perhaps, then, the open society is no solution at all. If that is the case, then most other forms of liberalism also would be unworkable, beyond a mere modus vivendi. Against this pessimistic conclusion, the argument of the present project is that we can find a more plausible of the open society in the work of Robert Nozick. As I will discuss below, Nozick offers a particularly helpful view of the open society as a form of utopia, thereby rendering such a society appealing even on the grounds of material self-interest.

Nozick describes a form of “meta-utopia,” in which individuals have a right of founding to form associations that approximate their own best possible worlds, and have a right of exit to leave any community they are a member of if they believe an alternative community will be better. This form of society “leans in” to the anti-statist forces of

4 neoliberalism, and is therefore an immediately available alternative to our present society. By undoing large portions of the regulatory state (not to be confused with the ), Nozick’s utopia opens up options that are not currently available for sub- state associations. So, as a hypothetical example, Pittsburgh and Philadelphia can be socialist utopias, and Central Pennsylvania can be a conservative paradise, with people sorting themselves into their preferred community. In fact, relevant associations could be even smaller than this, and can overlap in various ways as long as membership is always voluntary. If we are right in saying that the ethical good life is both attractive and already supported by many people, albeit in a relatively abstract way that does not currently inform their everyday life, then we can expect that Nozick’s utopia makes an ethical good life as available as it possibly can be without resorting to the use of state coercion.

Nozick thereby helps us see a realistic path towards the kind of society that can take us beyond the dilemma between the good life and the ethical life.3

However, as I will argue, Nozick’s meta-utopia is unlikely to be realizable within the confines of his libertarianism as it is usually understood. Nozick views the meta-utopia as identical to his notion of a minimal state, whose only function is to prevent citizens from coercing one another unjustly (i.e. in any way that does not qualify as a form of self- defense), and ensuring redress when coercion does occur. But the meta-utopia likely will

3 Note that beneficence need not take the form of direct payments to those in poverty a la Singer. We can also reduce harm by causing less harm in the first place. We also might reduce harm by reorganizing the material world in such a way that suffering is reduced through institutional means like a guaranteed basic income rather than individual giving. 5 need a more-than-minimal state that provides the education and resources necessary to allow people the real opportunity to take advantage of rights to exit and founding that form the basis of the meta-utopia’s appeal.

1: The Good Life and the Ethical Life

No one has done more in recent times to note the divergence between the good life and the ethical life than . I will therefore use his work here as a concrete foundation for the more general dilemma of how to achieve the good life and the ethical life simultaneously within a consumer society that emphasizes a life of materialism. My point is not to show that Singer’s particular moral argument is correct, but that he identifies a way that individuals’ own espoused ethic of life diverges from their actual behavior. In other words, I am not arguing that people need to live up to Singer’s particular vision of morality. Rather, I argue that Singer allows us to clearly see both the way in which the good life and the ethical life can converge, and the fact that this convergence is disabled by a consumerist vision of the good life that many people currently hold. In particular, I will focus here on Singer’s most famous work, which concerns the reduction of poverty. However, it should be obvious how these particular arguments can be generalized to any issue in ethics where the same scarce resources can either contribute to our own pursuit of consumption or be used in moral behavior that does not improve our own material lot in life.

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In Famine, Affluence, and Morality, Singer argues “that the way people in relatively affluent countries react to a situation like that in Bengal [a refugee crisis] cannot be justified; indeed, the whole way we look at moral issues – our moral conceptual scheme – needs to be altered, and with it, the way of life that has come to be taken for granted in society” (1972, 230). What Singer has in mind is the reformulation of our beliefs about a duty of aid to those who are suffering. In particular, “if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it” (Singer 1972, 231). As Singer notes, “The uncontroversial appearance of the principle just stated is deceptive. If it were acted upon, even in its qualified form, our lives, our society, and our world would be fundamentally changed” (1972, 231).

Although many people who read Singer’s argument find it to perhaps too extreme in its demands, it is nonetheless the case that in general, we widely underperform with regards to humanitarian aid, even using our own preferences as a metric of adequacy. Singer notes, for example, that in a 2000 survey where Americans tended to say that too much spending goes to humanitarian aid, they also tend to believe that aid should constitute roughly 5-10% of the U.S. government’s budget – an amount that would actually represent a five to ten times greater magnitude than the current spending of about 1% of the budget. Nor does private giving make up the difference – in 2010, Americans gave

7 roughly 7 cents per $100 of income to humanitarian causes (Singer 2010, 35).4 In short,

Americans do not seem to live up to their own standard of beneficence, even though they do in fact have such a standard (as opposed to being purely selfish or not caring at all about the suffering of others).

Why is there such a gap? It is not simply that Americans are callous to the suffering of others. Perhaps it is a matter of akrasia, or weakness of will, but this simply pushes the question back a step – why do people need willpower in order to give more to humanitarian causes? Similarly, we might note that especially these days, it seems like money doesn’t go as far as it used to, and personal needs are difficult to meet. But we are not, at least in an American context, usually talking about needs like food, water, and shelter in their bare utilitarian forms – why, then, do Americans find that they have greater need of their incomes than those who are suffering? The answer, I think, is that giving to those who are suffering is viewed as a sacrifice, specifically a sacrifice with regard to the good life. The good life, in contemporary America, revolves to a great degree around consumerism, or the acquisition of goods and services; in particular, the

4 To perform some rough calculations: US government spending is set to be $4.4 trillion in 2019 (Congressional Budget Office 2019), so according to the 2000 survey mentioned above, Americans would support something like $220 to $440 billion in humanitarian aid spending. Government humanitarian aid in the same year will be, at best, $27.7 billion (Foreignassistance.gov 2019). This leaves a shortfall of somewhere between $192.3 to $412.3 billion. Total US personal disposable income (i.e. after income) is set to be roughly $15.9 trillion in 2019 (Bureau of Economic Analysis 2019). At a rate of 7 cents per $100 in income, Americans would give roughly $11.1 billion in private donations to humanitarian aid. This still leaves a shortfall of $181.2 to $401.3 billion, if we take Americans to generally want 5-10% of government spending to go to humanitarian aid. To make up this shortfall, Americans would have to give at a rate of around $1.20 to $2.60 per $100. American personal disposable income per capita will be roughly $48,471 in 2019 (Bureau of Economic Analysis 2019). This means that to meet their own humanitarian aid target, the average American would have to contribute privately between $582 and $1261 to humanitarian aid. This would come to around 1-2% of yearly disposable income per person. 8 issue is material consumerism, that is, the consumption of actual (as opposed to imaginary, virtual, or conceptual) goods and services.5 That America is a consumer society hardly needs much explication. And, while there is much written these days about the transition to a knowledge economy, this hardly seems to have reduced America’s interest in material consumption, at least if the US carbon footprint is any indication

(Union of Concerned Scientists).

It is, at the very least, seemingly an assumption of Singer and those who make similar arguments that what they are asking people to do is sacrifice, that is, to give up something that is valuable. Singer writes “we all spend money on things we don’t really need, whether on drinks, meals out, clothing, movies, concerts, vacations, new cars, or house renovations” (2010, 5). Peter Unger argues that “the cost is enormous” to live an ethical life. Garret Cullity, although reaching a less extreme conclusion than Singer regarding how much we should give to those in need, argues that the central question is “how much you can be required to sacrifice overall in contributing to helping the poor” (2004, 203).

His answer is that “expensive purchases that are made purely for the sake of enjoyment are morally indefensible” (2004, 183). In each case, the notion is that there is some large cost to bear in order to help the poor. Note that this is different from other possible arguments – for example, that we do not help because we are unaware of how to do so or are distracted by other events in our lives. Those arguments are compatible with aid not

5 Unless specified otherwise, I am referring to material consumerism when I use the term consumerism in this project. 9 presenting a sacrifice; but it seems to be the opinion of Singer et al. that the problem is precisely a lack of sacrifice.

The problem for an argument like Singer’s is that it is premised upon the sacrifice of the good life, at least in the eyes of many Americans.6 And, indeed, this is why there is such an apparent dilemma between rights and humanitarian aid. Individuals are unlikely to give up anything that seems integral to living a good life. As long as resources that are necessary for humanitarian aid are also necessary for leading a good life, voluntary giving to humanitarian causes is unlikely to get much higher than it currently is. And as long as this is the case, the only way to actually give as much aid to humanitarian causes as at least some think is necessary will be through coercive means, namely taxation. But the same problem of taking resources away from the good life will come up in the context of taxation, at least insofar as America is a liberal rather than some kind of benevolent dictatorship. In the latter case, the government could force individuals to live up to their own standards of morality by making an executive decision to spend more out of the government’s budget on humanitarian aid. In a , individual voters have to be persuaded that such an increase is acceptable (or at least not worth voting someone out of office over). An increase in taxation for the purposes of humanitarian aid therefore seems little more likely than an increase in

6 Singer himself certainly is aware of this problem. He writes that “[i]n a society where the narrow pursuit of material self-interest is the norm, the shift to an ethical stance is more radical than many people realize” (2000, 270-271). 10 voluntary giving; both approaches are hampered by the trade-off between the good life as enjoyment of our property and humanitarian aid.

The fact that very well off individuals might give tremendous amounts of money away (I am thinking here especially of the case of the Bill and Melinda Gates Foundation) is the exception that proves the point – at that level of wealth, it is difficult to find anything that will contribute to the good life in consumerist terms. Or, in more cynical terms, the Gates are “consuming” philanthropy.7 Unfortunately for an argument like Singer’s, the consumption of philanthropy is only really available to the very well off. Think of what philanthropy is like when one is a billionaire – it is not simply a matter of clicking a few buttons on a website and never seeing any results from one’s donation. That is, the experience of philanthropy at the level of the very well off is likely more interesting, and even more fun, than for most people who can only give the average amount cited above.

For Bill and Melinda Gates, the experience of philanthropy is more like the kinds of services that less wealthy people spend money on in pursuit of the good life than it is a sacrifice of the good life. When the question is whether our life is made better by giving money away on a website with a few clicks or spending it elsewhere, however, Singer is more apt to be disappointed.

7 If this description is correct, then we have a deep problem – the active giving of aid requires a consumer mindset, and anyone who has a consumer mindset will be unlikely to find that giving aid pays the highest dividends for their investment unless they are giving only a small amount (while still reaping the social and psychological rewards of giving) or are one of the super-rich, who have run out of other things to spend their material wealth on. This is to say, it might be the case that we cannot eliminated material consumerism without also undermining the practice of philanthropy, but if we want to retain philanthropy, we must also retain the material consumerism that leads to charitable giving never reaching desired targets, precisely because from a consumer mindset, there are better things to spend the funds on. 11

Nonetheless, the example of the very rich gives us a first clue as to the way we might dissolve the apparent dilemma between property rights and humanitarian aid, and thus between the good life and the ethical life. The behavior of the very rich suggests that the dilemma between the good life and humanitarian aid is at least not all encompassing – at some point, the two can become fellow travelers. Bill and Melinda Gates have given vastly greater quantities of their income to charity than the 1-2% of income that would be necessary to meet our subjectively preferred level of humanitarian aid, and no one thinks that this activity has diminished the quality of their lives. Of course, the Gates are hardly a model most people can copy; when one is a billionaire, one can give away much of one’s fortune and still have far more left to spend on consuming more “normal” goods and services than most people will possess in their entire lives. But the behavior of the very rich nonetheless suggests that there is at least theoretically some way to combine the enjoyment of the good life with humanitarian aid. That is, the latter need not always be a sacrifice with regard to the former.

To generalize a bit, the problem with emulating the rich is that their lifestyle is still premised on consumerism – it just so happens that at a certain point, what one wants to consume can be philanthropy. Bill and Melinda Gates still have a massive house, staff on call, and so forth. They simply became so rich that they ran out of such normal material goods and services to consume, and in their case, turned to philanthropy, as have many of the rich before them (politics is another popular choice, as Donald Trump, Michael

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Bloomberg, and the Koch brothers can attest to). We do not presently know how to have a society in which everyone is so wealthy – the dream of a post-scarcity society comes closest, but no one knows how to actually achieve such a society. Furthermore, insofar as the rich are still consumers in the normal sense, they also contribute to causing avoidable suffering. Singer focuses more on ameliorating suffering via donations in his work on humanitarianism, but he is perfectly aware of the fact that a great deal of suffering is also directly caused by consumerism – his work on in Animal Liberation being the clearest version of the argument (2009). There, he notes how our consumption of meat has profoundly negative effects on the animals we are consuming, even leaving aside their necessary deaths. Factory farming is a system of intense cruelty towards animals, and it is undergirded by American patterns of consumption and the role of consumption in the good life.8 In more humanitarian terms, however, we might note especially how consumerism is driving the progress of global climate change, which is poised to deliver immense suffering around the world in the increasingly near future. In short, becoming “super consumers” like the very wealthy does not seem to be a plausible solution to the dilemma between the good life and humanitarian aid.

8 Indeed, my argument in this project could be equally applied to the issue of animal rights – the focus on humanitarianism would simply expand beyond its “speciesist” underpinnings to incorporate sentient animals. 13

2: Stuck in Consumerism

The issue here is that there is not much in the way of an alternative to a consumerist lifestyle, certainly not since the fall of and perhaps even earlier, when the full extent of Stalinist brutality removed the luster from Marxism for many of its adherents. There are, of course, alternative ways of life in the world; but they are not really competing for the attention of those who are living a consumerist lifestyle in the way that Marxism did in the second half of the 19th century and the first half of the 20th century. Life in developed countries is essentially consumerist – there are plenty of choices of lifestyle within the bounds of consumerism, but very little choice (or, more accurately, little apparent choice) regarding whether to be a consumer or not. In short, many of us in developed countries generally cannot imagine an appealing way of life for ourselves that is not consumerist.

Our concern here is comparative – is consumerism any better than alternative ways of life that might be more compatible with the ethical life? In particular, since we cannot currently imagine any such other way of life that would be appealing, is there something inherent in an alternative to consumerism that renders it conceptually improbable? We cannot currently envision an alternative, but this could be due to either a failure of imagination or because such an alternative is impossible or at least highly implausible.

There are two reasons the latter might be the case – the first is that there might be no way to render the ethical life less sacrificial, while the second is that there might be no way to make such a way of life appealing to individuals living in a consumerist society. In either 14 case, it will not do us any good to try to find an alternative way of life; consumerism is imperfect, but it is the best we can do, or at least the only appealing way of life for those who are already ensconced in it.

Concerning the first issue, the question is whether consumption, and especially material consumption that competes with humanitarianism for resources, plays a necessary role in the good life. It is notable that the relationship between consumerism and the good life is quite fraught.9 Critical theorists of various sorts (anarchist, Marxist and postmodernist) have never been particularly keen on consumer society and continue to question its negative effects on human life. But we need not look to to any particularly foreign worldview in order to find critiques of consumerism – plenty exist even within the bounds of mainstream empirical social science. It is not quite true that money cannot buy happiness, but it is the case that most empirical accounts of the good life emerging out of positive psychology only view income as a means to ends like good human relationships and interesting challenges in life.10 And there is reasonable evidence to suggest that

9 I here examine the good life as a matter of well-being. This is, of course, a contentious claim, but not much rests on it. If consumerism cannot even prove its worth to the good life on the grounds of well-being, it is hardly likely to do so if we take a more deontological or virtue ethics approach. Furthermore, well- being has a more obvious relationship to individual motivation than right or virtue, and therefore is the most relevant aspect of the good life when we are considering the apparent dilemma between the good life and humanitarian aid. 10 Positive psychology is a large literature – for a recent overview of the field by one of its founders, see Seligman’s “Positive Psychology: A Personal History” (2019). Here Seligman discusses five components of well-being: positive emotion, engagement, relationships, meaning, and accomplishment. Consumerism can be a way of achieving some of these ends to some degree, of course, but it is not inherent to any of them. Dunn, Gilbert, and Wilson put it this way: “Money is an opportunity for happiness, but it is an opportunity that people routinely squander because the things they think will make them happy often don’t” (2009, 115).

15 consumerism, and especially an attitude of materialism (i.e. valuing material wealth), are net detractors from happiness (Ahuvia and Izberk-Bilgin 2014, 485-492).

Regarding the second issue, whether an alternative way of life that enables the ethical life can appeal to individuals currently inhabiting a consumer society, we should note that some people already lead lives that seem to be good ones, while avoiding the materialism of modern consumer society. The point here is not that these currently existing alternative ways of life are widely appealing, only to note that there is no principled reason that a less material version of the good life is impossible. In other words, I take it that the existence of at least some people who have found a non-consumerist way of life appealing from within a consumer society suggests that it is in principle possible to find a more widely appealing alternative. All that need be shown here is that the grasp of consumerism is not airtight. Peter Singer himself can be taken as an example, as can all the other people who show themselves willing to try to reduce harm even in the face of sacrifice – it seems unreasonable to think that an alternative world in which that sacrifice was rendered less burdensome would be less appealing. One can also point to the many still existing monastic orders around the world. There are also utopian communities that embody a similar anti-consumer ethos. The anti-globalization movement of the 1990s can be taken as another example, as could the Occupy movement of the late 2000s. And perhaps the best example are those millions of people who, in the course of their everyday lives, already resist consumerism in small ways: people who enjoy fixing broken things more than buying new ones, or growing their own food, or who not only

16 think vegetarianism is moral, but actually enjoyable. Again, the point here is simply that non-consumer ways of life can be appealing to those within a consumer society.

It therefore seems possible, at least in principle, that there is an alternative, non-consumer society that could decouple the ethical life from sacrifice. The problem is that people do not seem able to actually change their way of life from a consumption-focused one, despite their own beliefs and the examples put forward by other individuals. I have little doubt, for example, that Peter Singer is as happy as anyone, or at least as happy as he would be if he lived a life of consumption; this is the argument he puts forward in How

Are We To Live, if nothing else (1995).

The problem, I think, is that people lack the real opportunity to live differently. Real opportunity involves the overlap between the actual availability and perceived availability of possible worlds. That is, when a world is actually possible and we perceive it as such, we can count that as a real opportunity that is available to an individual.

Regarding actual possibility, I have in mind two sorts of limitations on the extent of which worlds are actually possible. First are the physical constraints presented by the laws of . An open society should not enable people to think that physically impossible worlds are possible. So, for example, the that global warming is a myth would be a sign that an open society is not functioning perfectly (though this might not

17 justify any particular state intervention). Purely wishful thinking is not what an open society is meant to enable.

The second kind of actual possibility that must be taken account of is social – what can an individual achieve given the existence of other people, whose own actions will often affect what is possible or impossible for that individual to do. This is not to deny the possibility of persuading others, or of coordinated action; it is merely to say that it is not always possible to organize people in such a way as to achieve a given hypothetically possible world.

Perceived possibility is not simply a matter of information, that is, of knowing that a possible world is actualizable. It is also a matter of the liveness of a given possible world, to reference William James (1992, 458). It is not that every possible world should necessarily seem attractive, but it should seem like something one could really do. This is a vague concept, but I think it aligns well with our everyday phenomenology; we can often understand intellectually that something is possible, but do not really feel that we could do it. This emotive component of perceived possibility is important in defining an open society, as without it, the of possibility will not translate into a “sense of openness.” For instance, when threatened by a mugger to hand over “your money or your life,” we understand intellectually that we could, in fact, give our lives; but we would hardly say that this is an open possibility for most people. The open society should

18 translate not only intellectually, but also emotionally, if it is to really be open in a way that can be appreciated by its inhabitants.

The reason people continue to pursue a consumerist way of life, in spite of their own beliefs and the apparent attractions of the ethical life, is that they are stuck within consumerism. They lack the real opportunity to live in a different fashion. For many people, this is a matter of actual opportunity; if someone is relatively poor, then the pursuit of material welfare is perfectly rational. But even here, there is also an issue of perceived possibility: the poor do not coordinate to demand better conditions with much frequency, especially in our neoliberal age, and this lack of organization cannot always be traced to a fully rational assessment of costs and benefits. The role of perceived possibility is even greater for those who are better off – here, there is actual opportunity to live an ethical life instead of a consumerist one, but individuals do not view this as a possibility. Only the very rich, as noted above, seem able to live a different way of life, and even then, it is likely only because they have already exhausted more material forms of consumption.

What we need, then, is a social form that undoes the stickiness of consumption, by expanding both actual and perceived possibilities. The expectation is that, given a real opportunity to do so, more people would live an ethical life than currently do. This must be our hope, at least, as forcing people to live an ethical life involuntarily is both illiberal

19 and impractical within a democracy like the , at least beyond enforcing respect for (very) basic .

Any solution to the problem of being “stuck” in a consumerist way of life must itself provide some means of overcoming that stickiness. In other words, we cannot assume away stickiness in thinking about possible solutions to that stickiness. Possible solutions themselves consist of alternative ways of life, to one degree or another, and therefore are subject to the same constraints imposed by sticky consumerism that interfere with our ability to live an ethical life in the first place. So, for instance, if the problem we are dealing with is that we inhabit an unjust society, the solution must not only describe a more just society, it must also provide some means of arriving at that more just society from our current position in an unjust society, in which power is likely distributed in a way that not only constitutes injustice, but also interferes with our ability to realize a more just society.

Similarly, in the present case, if the problem is that alternative ways of life that would dissolve the dilemma between the good life and the ethical life seem to be unavailable, then we have to account for this problem in describing any possible solution. In other words, we cannot just describe a way of life in which people can live an ethical good life, nor can we simply note that this dilemma is caused by being stuck in consumerism; we must also provide a solution to the stickiness of consumerism that is not itself foreclosed by precisely that stickiness. For instance, one solution to this problem would be to

20 provide some sort of national education that emphasizes living ethically. But our desire to fund such a program runs into precisely the same problem as living ethically does – it appears to be a sacrifice of resources that could be used for the pursuit of the material good life. In short, any solution to consumerism must also be compatible with consumerism, at least initially, even if it later leads us towards a different, non- consumerist way of life.

A full analysis of the current distribution of power in American society would span multiple works. In this particular project, I propose to focus on one particular locus of power, namely the ideology of neoliberalism, in order to see how it can provide some feasible means of overcoming sticky consumerism. It is easy to get trapped in a quagmire of semantics regarding the nature of neoliberalism – I simply take it to be a quite successful set of ideas that, in particular and in part, advocate for a society in which individual responsibility within market institutions is seen as the best means of solving a variety of inefficiencies in various spheres of life that may have excluded markets from.11 It is easy to associate consumerism with neoliberalism, and the two are certainly compatible with one another. Indeed, it is this compatibility that makes neoliberalism a good starting point for considering feasible solutions to consumerism.

But neoliberalism’s emphasis on individual responsibility within a , and general arguments in favor of expanding markets at the expense of government regulation

(though not necessarily government welfare), provide space for moving from an initially

11 For more on neoliberalism, see Harvey 2007; Brown 2017. 21 consumerist position towards alternative ways of life. To be clear, I do not think that neoliberalism is itself the solution here, but merely that a solution can “piggyback” on neoliberalism. Neoliberalism has done much of the work to enable the possibility of what

I will call an “open society,” which shares a neoliberal emphasis on and markets but emphasizes the expansion of possibility rather than improvements in efficiency.

3: The Open Society

The popularity of the term “open society” can be traced to Karl Popper’s The Open

Society and its Enemies.12 Much of Popper’s political thought in turn goes back to John

Stuart Mill’s On and has found a substantial recent expression in Gerald Gaus’

The Tyranny of the Ideal. I will define the open society somewhat abstractly as that society which aims at maximizing real opportunity for all individuals. That is to say, in an open society, individuals will perceive life as “open” to those possible worlds that are actually available. This definition allows us to distinguish the open society from conceptions of society that it can beconfused with, in particular political liberalism and neoliberalism, both of which tend to take aim at an overactive regulatory state.

How does the open society maximize opportunity? In The Tyranny of the Ideal, Gaus argues, based in particular on findings from Lu Hong and Scott Page and the work of

12 The term was first used by Bergson in Two Sources of Morality and Religion (1977). 22

Ryan Muldoon, that a diverse society is most likely to solve the general problem of our limited knowledge of possible worlds that are much different from our present, actual world (Hong and Page 2004; Muldoon 2016; Gaus 2016, 102). Although Gaus is particularly concerned with our knowledge of , his results are more widely applicable.13 He writes:

Such an Open Society will not be characterized by a shared ideal. Through

the interactions of its constituent “republican” communities it will be a

forum of contestation, disagreement, and, sometimes, mutual

incomprehension. That it will not share an ideal or even a rough roadmap

to an approximate utopia does not, however, mean that its communities

cannot come to agree on moral improvement, and point the way to more

just social relations. When networks connect diverse perspectives,

ideologies that seem entirely at odds can provide important inputs into each

other’s searches, leading to common recognition of more just social worlds

(Gaus 2016, 147-48).

The point, then, is that even groups that do not share the same basic moral foundations can learn from one another’s experience. This is due to the “modularity” of many social

13 This is true given certain conditions, specifically that the thing we are searching for exists in a set of possible worlds that are characterized by a distribution that is neither too smooth (which would make discovery simply a matter of making pairwise comparisons) nor too random (which would make discovery of one possible world totally uninformative as to other possible worlds) (Gaus 2016, 73-74). 23 problems that we might search for solutions for. Some components of another group’s experience might fit into part of our own solution to a problem, even if the other group has a different set of basic moral foundations. Similar points about the benefits of the open society for knowledge, formulated differently but with a common spirit, can be found in Mill’s On Liberty and Popper’s The Open Society and its Enemies (Mill 2002,

54; Popper 2013, 423-425).

Turning now to individualism, the open society consists of a moral rather than a methodological individualism. The entity which should be free, and feel free, to pursue different possible worlds is each individual person, as an individual.14 Again, this is not to foreclose coordination; but the entities for whose sake coordination is justified are the individual people who comprise the group, not the group itself. This is another sense in which the open society is a liberal one; it is inherently suspicious of limitations on the actuality and perceived actuality of possible worlds that are sometimes justified as necessary for the stability and longevity of groups. The open society is compatible with illiberal sub-, but only if those sub-societies operate on the basis of voluntary membership.

Finally, what does it mean to say that the open society maximizes real opportunity for all individuals? The general point is that the mechanisms of the open society operate most effectively when they are distributed in a relatively egalitarian fashion. As I will suggest

14 On the value of feeling free, see Kukathas (2018). 24 below, the mechanisms that drive the expansion of opportunity in the open society will operate most effectually if all people are free to pursue the way of life they find most attractive. The more unequal society is, the less likely it is that the mechanisms of the open society will operate effectively. In short, the means by which the open society generates opportunity will tend to distribute access to opportunity in a fairly egalitarian fashion. Overall and individual opportunity are therefore tied together in the open society in way that should be appealing to liberal egalitarians.

What does all this add up to institutionally? Abraham Singer argues that Gaus, who has provided one of the more recent sustained discussions of the open society, favors four institutions:

First, law and morality ought to be organized around moral prohibitions, not

permissions… Second, the Open Society requires that there be “jurisdictional

rights” in order to mitigate the complexity that a maximally diverse society will

necessarily engender… The third institution follows from the emphasis placed on

: markets, the institution par excellence of facilitating cooperation

without thick agreement… Fourth, though stated less explicitly, the Open Society

requires some brand of democratic politics (Singer 2018, 3)

We might wonder, at this point, how the open society actually differs from already existing liberalism. In particular, both Rawlsian political liberalism and Hayekian neoliberalism seem quite close to the open society, so much so that we might wonder if

25 the open society is just a form of old wine in new bottles (Rawls 2005; Hayek 2013). Of course, as a form of liberalism, it is true that the open society has much in common with other forms of liberal politics. In particular, the open society shares with political liberalism and neoliberalism a certain distrust of government regulation (as distinguished from government welfare programs) – in this sense, the open society makes common cause with political liberalism and neoliberalism against more interventionist forms of and social democracy. But we should not overlook the distinctiveness of the open society, which comes with the second institution that Gaus identifies with the open society, jurisdictional rights.

Jurisdictional rights are a means of dealing with the complexity of the open society, in which there are disparate and diverse perspectives (as many as there are individual people) who must nonetheless come together in support of a singular constitutional order:

This combination of heterogeneity of participants and holism of the bargain

(everyone has some claims on everyone else) renders the system highly

complex; a change in any perspective is apt to reverberate throughout, at a

limit, changing all bargains and surely the public moral constitution as well

(Gaus 2016, 199).

This complexity can be problematic, however, as there is a need for some stability of

“frameworks for interactions” so that individuals can predict the effects of their actions

(Gaus 2016, 199). Gaus notes two approaches that can help create such stability. First, we can aim at some sort of grand bargain between all the members of society. This solution, 26 however, “tends to tightly couple the social outcome to the existing sets of perspectives,” and will therefore prove deleterious to the development and dissemination of new perspectives (Gaus 2016, 199). On the other hand, “[t]he opposite approach is to decouple the perspectives, and so lessen the complexity of the system, so that changes in one do not automatically induce changes throughout” (Gaus 2016, 199). In other words, we can have a multiplicity of jurisdictions tied together with a minimal form of “grand bargain.” Changes in an individual’s perspective will then tend to change the bargain of their particular jurisdiction, rather than requiring a change in the grand bargain that is applicable to all members of the open society.

As an example, Gaus references the issue of religious diversity. One approach to accommodating religious diversity is “a bargain – each religion ran its own schools, got a share of public funds, had representation on various national councils, and so on” (Gaus

2016, 200). Such an approach will “radically increase the complexity of the moral constitution,” because it has to accommodate society-wide diversity within a singular bargain (Gaus 2016, 200). On the other hand, “jurisdictional rights to religious practice, teaching, and inquiry will be far more robust in the face of change just because, via separation, they weaken the linkages between the constituent perspectives and the common public world” (Gaus 2016, 200). Therefore, “a moral constitution employing

[jurisdictional rights] is open to a wide range of new perspectives” (Gaus 2016, 200).

Of course, both political liberalism and neoliberalism involve jurisdictional rights – they both recognize property rights, for example, which Gaus takes to be a paradigmatic

27 instance of jurisdictional rights.15 The difference is a matter of quantity rather than quality – the open society will have many more jurisdictions than either political liberalism, which still tends to emphasize relatively comprehensive society-wide bargains, or neoliberalism, which tends to aim at spreading markets into all spheres of life. Nor does the open society only care about jurisdictional rights – there is more room in Mill, Popper, and Gaus for federal government intervention than in, for instance,

Kukathas’ Liberal Archipelago, where freedom of conscience and are the only goods guaranteed at a society-wide level (Kukathas 2003). But in enabling the maximum jurisdictional rights that are compatible with the variety of goods most of us expect a national government to procure to at least some degree, the open society serves to maximize real opportunity in a way that neither Rawlsian political liberalism, nor Hayekian neoliberalism, nor Kukathasian “society as international politics” manage to (Rawls , Hayek 2013; Kukathas 2003). As Gaus writes:

A liberal framework might be good at accommodating the existing array of

perspectives because it is good at accommodating diversity per se. The

framework’s success is not so much in accommodating its current set of

diverse perspectives, but in accommodating diversity itself. Having

developed an interperspectival conception of justice that does well at

15 According to Gaus, the open society is therefore incompatible with public ownership of the means of production. However, this “does not entail that distributional questions (concerning opportunities, income, and wealth) have no place in the political life of the open society” (Gaus 2016, 201). Democratic “must beware of undermining the moral constitution that renders a shared public life among diverse perspectives possible, but it has many tasks that go beyond maintaining this general framework” (Gaus 2016, 202). 28

achieving the endorsement of diverse perspectives, additional diverse

perspectives can be relatively easily accommodated. It is so good at working

with difference that new and more difference is not a great challenge. On

this view, a society can reach a point where, having developed a diversity-

accommodative understanding of interperspectival justice, it has no

difficulty being open to further perspectives. Here the liberal society is also

an open society (Gaus 2016, 176).

We might still wonder, however, how it is that the open society is meant to help us with the dilemma between the good life and the ethical life. Indeed, given the open society’s emphasis on individual freedom, it might well seem that the dilemma will only be exacerbated.

The basic argument I want to make in this project is that the open society is precisely what is necessary in order to discover and transition to a non-consumer version of the good life, and thereby to solve the dilemma between the good life and the ethical life.

Both knowledge and individual freedom are necessary conditions for the realization of such a non-consumer society.

Knowledge, in particular the discovery of new knowledge, is necessary because of the aforementioned lack of apparent alternative ways of life to a consumer society. We do not currently know of a way of life that can appeal enough to members of a consumer society to convince them to try and leave that society behind, rather than merely

29 occasionally lament the costs of consumerism. A society that enables discovery is therefore a necessary first step towards finding a non-consumer lifestyle. If we are not willing to turn to coercion, and most likely minority-led coercion, then the majority of people will need to be persuaded to try a new way of life. Such persuasion will be enabled by having in hand more than the sometimes vague promises of utopian theory.

The more concrete the alternative way of life and the more apparent its appeal, the more likely it is to overcome the barriers of status quo bias, psychological or otherwise.

Once knowledge is gained, individual freedom provides the ability to do something with it. Unless people are free, both actually and perceptually, the most convincing persuasive attempts will come to naught. The perception of freedom is key here – one can be actually able to do something, but unless they realize that they have such an ability, that ability is irrelevant. Furthermore, as noted above, knowing that one could do something and feeling that one could really do it are equally important, but the latter does not always track the former. With regard to ethics, people need to be actually and perceptually free to take up a new, non-consumer way of life once it is discovered; otherwise, the discovery will get us nowhere.

4: Nozick’s Utopia

To demonstrate the operation of the open society, it is important to show why such a society is itself appealing to those inhabiting a consumer society. The open society as described by Mill, Popper, and Gaus has two problems in meeting this goal. First, all 30 three authors emphasize goods that do not have a necessary connection to the good life as it is perceived by members of a consumer society. In each case, the arguments in favor of the open society are unlikely to be effective. Second, in all three cases, the open society emphasizes the public nature of experimentation. Because of this emphasis, the open society will be difficult to achieve in an intensely diverse modern society, where people would rather go their own way than engage in public reason.

To begin with, our initial problem is that individuals espouse ethics that align the interests of the self with the interests of others in various ways, yet individual behavior tends to aim at consumption and thereby divide the good life from the ethical life. Any solution to this problem will have to appeal to individuals as they are currently constituted, at least initially. This means that the solution must appeal to individuals in a consumer society, and must therefore possess some persuasive power that is lacking from individuals’ own espoused ethics, the empirical research of positive psychology, and the examples provided by those like Singer who already live in a way that aligns the good life with the ethical life. What is needed is a solution that can, in concert with these already existing forces that push us towards the ethical life, create a jointly sufficient set of conditions for actually achieving such a life, and in a way that makes the good life congruent with the ethical life rather than turning people into martyrs.

However, it is not clear that the open society as formulated by Mill, Popper, or Gaus is able to play this role. All three appeal to moral values, i.e., precisely those values that are

31 already failing to motivate the ethical life in the face of consumerism. This is not necessarily a critique of those thinkers on their own terms; they are not necessarily aiming for their arguments to play the social role that interests us here. But it is nonetheless the case that, for example, Gaus’ emphasis on the open society as a means of discovering the nature of justice, or Popper’s and Mill’s emphasis on the role of the open society in discovering the more generally, is unlikely to be of much service in convincing people currently stuck in a consumerist society to make the transition to an open society. This is especially true in a society like the contemporary United States, where “truth” seems largely to be a matter of rationalizing one’s pre-existing beliefs rather than discovering any new and possibly surprising information.16 That the open society would help solve this latter problem of de-valuing real truth does not make the actual realization of such a society any more likely, unfortunate as this may be.

Another, related, problem is that Mill, Popper, and Gaus all emphasize the communal nature of inquiry in their versions of the open society. This is not to say that any of these three thinkers espouse something like government-directed experimentalism; indeed, Mill and Gaus would likely find such an approach difficult to square with their support for relatively . However, all three thinkers do advocate for something like a “society of constructive criticism,” in which ideas are brought to public attention and criticized by others so that they may thereby be improved. In Mill, it is only through

16 One must wonder whether consumerism, with its emphasis on the good life as the satisfaction of one’s preferences, is ultimately responsible for this attitude towards truth. 32 public criticism that we can really arrive at the truth, so much so that he even suggests we might need to simulate disagreement where none exists naturally (Mill 2002). Popper’s idea of “critical ” requires, unsurprisingly, that we be open to criticism of our own beliefs (Popper 2013). And Gaus’ entire system of discovery depends on different actors supplementing one another’s differing viewpoints (Gaus 2016). Thus, even if Gaus is the only one to explicitly espouse the idea of public reason, all three thinkers certainly see reason as a function of the public.

The problem is that not all societies are fit, in either practical or moral terms, for public reason, at least when the publicness of reasoning extends as far as it does for Mill and

Popper. Gaus is on somewhat firmer ground, as he is only concerned with the search for justice, which is an issue of obvious public concern. However, even here, we find an implicit belief in the unitary nature of justice. We might not know what justice is, and therefore require diversity in order to find it, but nowhere does Gaus suggest that justice itself admits of diversity or pluralism. From a practical standpoint, we might wonder whether inducing people to engage in reason publicly is itself an insurmountable impediment to the realization of the open society. Certainly, in the United States of the present, it is hard to see much room for public reason (though people seem to be quite willing to make unreasonableness public). There must be good faith and a sense of a common project in order to sustain interest in public reason. We might find these conditions in the practice of science, for instance, but I am doubtful that we will find it in the public sphere, beyond situations where coming to some public agreement is

33 unavoidable (the budget and the public debt, for example). In short, I do not believe that public reason is a practical means of overcoming the stickiness of consumerism, at least initially, as we lack the kind of common cause that would make public reason applicable to this sphere of life. Consider, for instance, the contentiousness of government funding for the arts and sciences – how can we expect much direct government support for the even more contentious project of the individual achievement of an ethical life?17

What we need is a notion of the open society that avoids the problems associated with

Mill’s, Popper’s, and Gaus’ formulations. With this task in mind, the most applicable theorist of the open society to engage with is Robert Nozick. Although he is not often thought of in such terms, due to the strident libertarianism of his most popular work, Anarchy, State and Utopia, Nozick provides a vision of the open society that primarily emphasizes its utopian nature (1974). In the last chapter of Anarchy, Nozick describes what he calls a “meta-utopia,” in which each person can come to inhabit their own best possible world, as long as that world is premised on voluntary membership. In this way, the open society is the means of achieving the best possible world for each person, incumbent only on everyone else having the same opportunity. This vision of the open society is precisely the kind that is most helpful for our purposes, as it solves the two problems associated with Mill’s, Popper’s, and Gaus’ approaches.

17 I will argue later that the government likely does have a role to play, but it is in the realm of the provision of primary goods that can be used in the pursuit of most any kind of ethical life, rather than at the level of public reason. 34

First, regarding the problem of persuasive power, the utopian nature of Nozick’s meta- utopia should render his description of the open society appealing even to those currently ensconced in a consumer society. This is because, whereas most of utopia appeal only to certain kinds of people, Nozick’s meta-utopia is meant to enable nearly any kind of substantive utopian sub-society. As we shall see in more detail later, the only kind of utopians who will find Nozick’s meta-utopia unappealing are those who seek to impose their beliefs on others through coercion. We may need to account for these individuals in practical terms; one can, within the bounds of our current American system, impose their beliefs on others through legislation as long as one does not violate the constitution in doing so, and without the support of such individuals, it may well be the case that even Nozick’s meta-utopia is practically impossible. However, this problem is not unique to Nozick’s theory – every form of liberal politics bans coercive utopias.

Thus, in Nozick’s meta-utopia, whatever kind of society one wants to live in is available, as long as one can convince others to join with them. This maximizes the persuasive power of Nozick’s form of the open society – if any description of the open society will be able to fulfill the role of supplementing the force of our espoused ethics, positive psychology, and examples of alternative ways of life, it is the one proffered by Nozick, precisely because it is agnostic with regards to what kind of society one wishes to live in while simultaneously enabling various societies to exist.

Second, regarding the practical problem of public reason, Nozick’s meta-utopia neither requires nor precludes the kind of public engagement and mutual constructive criticism

35 that other version of the open society place at the forefront. In one sense, there is less room in Nozick’s meta-utopia for formal public reason, precisely because the state has fewer functions (though perhaps more than Nozick himself acknowledges) and therefore there is less to actually reason about. However, public reason can still occur in its more informal guise – anyone who wants to engage with other sub-societies can do so, to the degree that those other sub-societies also welcome such engagement. That is to say, if a particular sub-society does not wish to have its institutions subject to public engagement and criticism within the broader society, they need not do so. Of course, one can critique other sub-societies from within one’s own sub-society as much as one likes – there is no ban on criticism in Nozick’s meta-utopia. But neither is there any requirement, informal or otherwise, to engage in public discussion about the truth or anything else, beyond the very basic functions of government like public security and (I will argue) welfare. Many sub-societies will probably want to engage in public reason with one another, at least in limited forms, as many members of American society share enough common interests to make such mutual discovery processes appealing. But for those communities that wish to go their own way, Nozick’s meta-utopia will be appealing in a way that other forms of the open society are not.

5: Overview of the Argument

In Chapter Two, I attempt to provide a more rigorous way of thinking about the

“stickiness” of consumption. In particular, I argue that we can think of problematic consumerism as an adaptive preference. I argue that at least some amount of 36 consumption is likely to be the product of inverse adaptive preferences. Such preferences are the product of the overweening ubiquity of consumerism, rather than being unable to achieve what one really wants as with normal adaptive preferences. The practical stakes of viewing consumption as a form of adaptive preference comes when we consider therapeutic interventions. Solving adaptive preferences is relatively easy and non- invasive when compared with other forms of irrationality, much less more deeply seated forms of ideology. If some amount of consumption is indeed an adaptive preference, then, we have a promising chink in the armor of consumerism that might initially enable the realization of the open society.

But what form should the open society take? I have argued in this introduction that

Nozick’s particular approach to the open society is likely to be helpful here, and in

Chapter Three, I engage closely with the text of Nozick’s chapter on utopia in Anarchy.

This portion of Nozick’s book is far less commonly read and referenced than the explicitly libertarian portions of his work. The chapter aims to provide a primer on

Nozick’s meta-utopia, and to show how it is, in fact, a form of open society, despite

Nozick not using that term himself. I also hope to provide an analysis of the merits of Nozick’s meta-utopia – its coherence and logic – before moving on to its substantive appeal in the next chapter.

We might worry that by basing the project around Nozick, we are accepting his libertarianism as well. Chapter Four takes up this issue by presenting a puzzle in the

37 current literature on Nozickian self-ownership libertarianism. To begin with, contra

Nozick’s own view, libertarianism would likely be problematic for actually achieving the open society. It seems quite plausible, as Nozick’s own critics suggest, that his appealing version of the open society will require various forms of state assistance that are incompatible with his libertarianism. However, it is the libertarian aspects of Nozick’s meta-utopia that allow us to exploit neoliberalism in order to provide a feasible solution to the problem of living an ethical good life. We are thus faced with a puzzle – on the one hand, the meta-utopia is not likely to function well if it lacks government support beyond

Nozick’s minimal state, but on the other hand, a more-than-minimal state seems to violate the kind of self-ownership libertarianism that makes Nozick’s meta-utopia a feasible solution in the first place. Unfortunately, as the second half of this chapter aims to show, the current debate over self-ownership libertarianism forces us to choose between a strong right of self-ownership and a more-than-minimal state, rather than offering some middle way that allows Nozick’s meta-utopia to be both plausible and feasible.

As an alternative to that conversation, I will argue in Chapter Five that there is room in

Nozick’s libertarianism for the kind of taxation that would be necessary to support the operation of a more open society, and more importantly, which is compatible with a strong enough notion of self-ownership to render the meta-utopia feasible. Nozick (along with other prominent self-ownership libertarians like Mack and Lomasky) bases the assignment of rights on a concept of individuals as pursuers of the good. That is, a right

38 to self-ownership is a conclusion rather than a premise in Nozick’s overall argument. I will argue that the pursuit of the good does not align perfectly with the argument against the more-than-minimal state. In particular, not all costs that a person bears constitute the kind of sacrifice that violates a right to self-ownership. Furthermore, it is increasingly plausible that we can predict which costs are and are not sacrifices due to continuing advances in positive psychology. Thus, we have the possibility of a more-than-minimal state that does not violate a strong right of self-ownership, because such a state can exist without reducing anyone’s ability to live a good life.

Finally, in Chapter Six I consider the possibility that even a well-supported Nozickian meta-utopia is unacceptably libertarian, and that what is necessary is therefore a much- more-than-minimal state that aims at not just supporting the meta-utopia, but engages in more intensive forms of regulation. There are several areas in which we might think that even if Nozick’s meta-utopia works as advertised, the consideration of other social values like justice means that more regulation is necessary. This is especially true of areas of life where Nozick’s meta-utopia does not just push us toward forgoing future regulation, but actually requires us to undo current regulation that many have a strong allegiance to, and which are heavily entrenched in current US law, like public accommodations law.

Indeed, it is likely the case that if Nozick’s meta-utopia really requires us to undo these kinds of intensely popular regulations, then even the ability to piggyback on neoliberalism will not render this form of the open society a feasible option. The question, then, is whether there is any remaining room for the operation of Nozick’s

39 meta-utopia once we carve out space for already existing and well entrenched forms of government regulation, and whether and how this remaining space can help us achieve an ethical good life.

40

Chapter Two: Overconsumption as an Adaptive Preference

In the introduction, I suggested that individuals are “stuck” in the pursuit of a consumerist good life. For these individuals, the belief that the good life is the same as the ethical life, the supporting results of positive psychology, and the examples afforded by people like Singer who are already living an ethical good life, are insufficient to produce behavioral change away from consumerism. In this case, we cannot explain individuals’ behavior by referencing self-interest, because their actions seem to align neither with subjective self-interest (they have a higher-order belief in congruence between the ethical life and the good life) nor objective self-interest (as defined by various theories of psychological well-being, none of which provide support for full-bore consumerism). We need some other explanation of why and how, precisely, individuals are “stuck.” Otherwise, we will be unable to know either what sorts of potential solutions might be effective, or what constraints the “stickiness” of consumerism entails when considering which solutions are actually possible.

To begin with, when individuals profess higher-order beliefs that are not reflected in their lower-order beliefs or behaviors, we would seem to have a case of irrationality. Although not all consumption can be viewed as irrational, it would seem that overconsumption, or the consumption of material goods in a way that does not align with our considered 41 higher-order desires or is detrimental to individual well-being, is a form of irrationality.18

In the case of overconsumption, resources are being consumed in an ineffectual pursuit of the good life that might otherwise go towards moral pursuits and thereby actually better support the good life. Irrationality, however, comes in many forms – much will therefore depend on what sort of irrationality we think is the root cause of overconsumption.

I will argue in this chapter that we can think of overconsumption as an adaptive preference. An adaptive preference exists when individuals’ expressed preferences do not reflect their considered preferences, but only what they think is feasible – for instance, an abused spouse might not express a preference to be in a non-abusive relationship, or a citizen who has resigned themselves to the corruption of politicians might not express a preference to participate in a social movement aiming at political reform. What is important is that these views of feasibility are incorrect – the abused spouse can leave, and the citizen can achieve real change as part of a social movement. By contrast, it is not irrational to settle for circumstances one actually has no power over.19

Usually, adaptive preferences exist when someone has a considered preference, but thinks that it cannot be achieved, and therefore decides that they did not really want the

18 Thus, not all consumerism is irrational- even consumerism that harms others may not be strictly irrational if it contributes to the consumer’s preference satisfaction. My approach here is not therefore pitched at solving all the harms associated with consumerism, but only with irrational overconsumption. Rational but harmful consumption is also worth study, but would take us too far afield here. 19 Though Elster might disagree, as I discuss in section 2. 42 object of their preference anyways. Although the individuals in question are wrong that they cannot achieve their aims, their adaptive preference is explained by some feature of the environment that makes it appear that the object of desire is not available. It is difficult to see how this narrative applies in the case of consumerism, however, because there is nothing obviously standing in the way of individuals pursuing an ethical good life. Indeed, the existence of examples like Peter Singer would seem to preclude the usual kind of adaptive preferences, as nothing about our environment therefore makes it seem impossible to live a non-consumerist life. It would seem, then, that some other form of irrationality might better explain consumerism. Or perhaps consumerism is not so irrational after all, and our higher-order preference for living an ethical good life is more along the lines of wishful thinking than an actual desire. However, I will argue that what we face in the context of overconsumption is not an adaptive preference in its usual form.

Instead, I suggest that overconsumption is an inverse adaptive preference, or an adaptive preference caused by the overabundance of some option in a choice set, rather than the apparent lack of some option. So, in the case of consumerism, the ubiquity of a consumerist good life makes us overlook other possible ways of life. Whereas normal adaptive preferences are produced by something like a seemingly insurmountable obstacle between us and our considered desire, in the case of inverse adaptive preferences, it is more like something that is not our considered desire exerts such a profound gravitational pull that we decide we must prefer it. We are adapting to our environment in both cases, and with the same outcome – that we do not pursue our considered preference – as a result of different mechanisms.

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One reason to hope that overconsumption is a form of adaptive preference is that neutralizing adaptive preferences is often relatively non-intrusive, simple, and effective, at least compared with trying to fix more deeply seated issues of false consciousness. An adaptive preference only exists as long as an individual thinks (incorrectly) that they cannot get what they reflectively want. If this object of true desire is made available, and the individual is made aware of this availability, then the problem more or less solves itself. There is no paternalistic “deprogramming” involved.

The chapter’s argument will proceed as follows. First, I will introduce the notion of an adaptive preference, relying on ’s canonical approach. Nozick is helpful here as well, as he provides an account of rationality that incorporates imagination, the failure of which allows us to explain the existence of adaptive preferences in the first place.

Second, I discuss what exactly is wrong with an adaptive preference relative to normal preferences. In particular, we can see adaptive preferences as problematic because they reflect a lack of autonomy. Third, I address whether overconsumption can ever be an adaptive preference. Most of the literature on adaptive preferences is concerned with individuals who are prevented from getting something they desire; overconsumption, on the other hand, by definition involves getting, or at least pursuing, what one desires.

However, I will argue that the construction of this preference could meet Elster’s criteria for an adaptive preference under certain circumstances. Fourth, I set forth why we might think overconsumption as an adaptive preference exists in well-off societies, at least from

44 the perspective of those doing the consuming. I will use results from psychology that suggest that overconsumption is indeed a plausible possibility; therefore, the question is whether the conditions for overconsumption as an adaptive preference obtain to at least some degree. Fifth, I consider, if overconsumption is indeed a form of adaptive preference, what this implies about a possible solution to overconsumption. It may be the case that adaptive preferences are often easily solved through simply informing individuals that their considered preferences can, in fact, be achieved. But this does not help as much in the case of inverse adaptive preferences, where the ubiquity of information about one particular option is itself the root cause of irrationality. A plausible solution must, therefore, somehow engage the same forces that have produced the adaptive preference in order to undo it.

1:What Is An Adaptive Preference?

Discussions of adaptive preferences often begin with Aesop’s Fable of “The Fox And

The Grapes.” Many versions of this story exist; the best I have found is in verse:

An hungry Fox with fierce attack

Sprang on a Vine, but tumbled back,

Nor could attain the point in view,

So near the sky the bunches grew.

As he went off, “They’re scurvy stuff,”

Says he, “and not half ripe enough-- 45

And I’ve more rev’rence for my tripes

Than to torment them with the gripes.”

For those this tale is very pat

Who lessen what they can’t come at (Phaedrus 1913).

The fox wishes to eat the grapes but, finding himself unable to reach them, decides that the grapes must be sour anyways, and that he therefore does not actually want to eat them.

1.1: Elster on Adaptive Preferences

This parable is the starting point for Jon Elster’s more technical examination of “adaptive preferences.” Elster describes five essential characteristics of adaptive preferences, like the fox’s newfound dislike for grapes. First, an adaptive preference is reversible; as soon as the grapes become available, the fox will no longer think they are sour and will want to eat them.

Second, an adaptive preference is caused by a restricted feasible set of options, rather than a cause of a restricted set. The fox restricts his set because he cannot get to the

46 grapes, rather than deciding he should go on a no-grape diet and then having his friend the bear put the grapes out of reach and thus out of the feasible consumption set.20

Third, the formation of an adaptive preference is endogenous to the preference-holder.

The fox decides that the grapes are sour and he doesn’t want to eat them on his own, rather than after being manipulated by some external anti-grape propaganda.

Fourth, an adaptive preference is causal, not intentional. The fox does not sit and consciously deliberate over how to modify his preference about grapes, but experiences the effect of an unconscious reaction to the restriction of the feasible set.

Fifth, adaptive preferences are about the evaluation of a situation rather than the perception of it. The fox is not misperceiving that the grapes are actually too green to eat, but re-evaluating the value of the grapes and deciding without any new perceptory input that the grapes must be sour (Elster 1982, 220-26).

In addition to these unique characteristics of adaptive preferences, Elster provides three clues as to when adaptive preferences are likely be in play. First, we can make sure that necessity does not play a role in determining my preferences: “If I want to do x, and am free to do x, and free not to do x, then my want cannot be shaped by necessity” (Elster

20 But see section 2.3 on the difference between adaptive and adapted preferences – in my argument, only adaptive preferences, which are a response to an incorrect assessment of possibilities or involve some morally problematic lack of opportunity, are of concern. 47

1982, 228). This rather confusing statement is actually a simple idea; if I want x, but find out I cannot get x, and then I still want x, it is obvious that my preference for x does not have to do with the feasibility set, because I want x whether or not it is available. Second, and paradoxically, the more things I want to do and cannot do, the less likely it is that the feasibility set is influencing my desires: “If there are many things that I want to do, but am unfree to do, then this indicates that my want structure is not in general shaped by adaptive preference formation, and this would also include the things that I want to do and am free to do, but not free not to do” (Elster 1982, 228). Taken together, “(i) the larger the feasible set and (ii) the more your wants go beyond it, the smaller the probability that your wants are shaped by it [the feasibility set]” (Elster 1982, 228). Third and finally, Elster advances a “condition of autonomy for preferences,” which essentially amounts to saying that changes in the feasible set should not lead to “complete reversals of preferences;” the fox, for instance, should not suddenly prefer apples to grapes simply because the apples are available and the grapes are not (Elster 1982, 229).

Can we glean a general conclusion from Elster’s discussion of adaptive preferences? The essential point, I think, is that adaptive preferences represent a change in expressed preferences (or even conscious preferences, like thinking grapes are sour) that is entirely due to a change in the perceived feasibility set. There is no conscious reflection or interpretation of how to react to the new feasibility set; the feasibility set “speaks for itself” to our unconscious, which itself provides new preferences to our conscious mind.

Just as importantly, there is no reflection on whether or not the feasibility set could be

48 changed; in Elster’s description, an adaptive preference takes the current situation as something like an immutable given. One of Elster’s main normative concerns, as we will discuss in more detail later, is that adaptive preferences preclude “more-than-optimal frustration,” which “may be a good thing if it is an indispensible part of autonomy”

(Elster 1982, 233). The relevant issue here is why we are not frustrated once we taken on an adaptive preference; it is because adaptive preferences produce “[s]atisfaction induced by resignation” (Elster 1982, 234).

It is useful here to state quite clearly what an adaptive preference is not. It is not a product of a lack of information; the fox is not missing some aspect of the situation like a better way to climb the vine. It is not a product of limited cognitive capacity; the fox is not lacking in IQ when he decides that he cannot get the grapes. It is not a product of socialization; the fox does not have any fox friends who are explicitly telling him that grapes are a stupid thing for a fox to want. It is not even really a product of misinterpreting the current feasibility set; it might be that the fox could work to change whether or not reaching the grapes is a feasible option, but right now it is true that it is not feasible. Adaptive preferences are entirely about our reaction to a change in the perceived feasibility set; do we react by consciously reflecting on how this new information relates to our preferences and perhaps implies new behavior, or do we unconsciously change our preferences based on the new feasibility set?

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1.2 : Nozick on Rationality and Imagination

Nozick himself does not discuss adaptive preferences in his own work on rationality in

The Nature of Rationality, though he does consider some related forms of irrationality such as weakness of will and overcoming temptation (1993, 14). However, he does provide us with a means of understanding what precisely has gone wrong vis-à-vis the rationality of someone who has an adaptive preference, namely that they are suffering from a lack of imagination.21 Imagination is not usually discussed within the literature on adaptive preferences; it is therefore worth looking into Nozick’s notion of imagination’s place within rationality.22

“Rationality of belief” Nozick writes, “is not simply a matter of applying (mechanical) rules to weigh given reasons. Imagination plays an important role” (1993, 172).

Imagination, for Nozick, is “simply the ability to think up new and fruitful possibilities,” that is, new things we might believe in or desire or whatever else our rationality considers and aims at. He suggests that imagination of this sort might consist, to begin with, of a set of heuristic devices for generating solutions to problems.23 This is, then, a pragmatic notion of imagination, one that exists as a means of solving problems rather than simply

21 Note that I do not here mean a lack of imagination in the pejorative sense of lacking the normal or expected amount of imagination. I simply mean that one does not have the imagination necessary to fully comprehend the options that are available to them, a condition we all share in but only suffer from when it produces a non-trivial adaptive preference. 22 Indeed, it is not widely discussed in the literature on rationality in general. So, for example, the word “imagination” appears only four times in the Oxford Handbook of Rationality (2004). 23 The list of heuristics is quite lengthy, having 18 entries (1993, 163-72). 50 the imagery seen by “the mind’s eye.” Imagination cannot be reduced, however, to these heuristics; instead, the successful operation of each heuristic device depends to some degree on the imagination of the subject employing the heuristic. So, for example,

“[e]vidence is presented for an hypothesis, but were all relevant variable controlled for?... imagination and ingenuity are needed to detect what unconsidered variables might plausibly play a role in generating the data” (Nozick 1993, 172). Or “[i]t is not a mechanical matter to formulate the alternative statement most worth considering – relativity theory is an alternative to Newtonian mechanics, but only Einstein managed to formulate it – or sometimes even to know that it is an alternative” (Nozick 1993, 172).

One can proceed in this fashion through all the heuristics that Nozick articulates for solving problems; in each case, imagination has some important role to play in guiding rational thinking towards the best alternative.

Although Nozick does not make this move, we can understand the failure of rationality that has occurred with regard to adaptive preferences as a failure of imagination. One thinks that an option they would actually prefer is not available, when that option either is available immediately, or there is some means of making the option available that the agent could and would pursue if they could imagine doing so. This makes the uniqueness of adaptive preferences – it is not a failure of processing power, so to speak, but of realizing what alternatives are actually available. This means, as we shall suggest later, that solving adaptive preferences is a less intrusive affair than some more deeply seated forms of irrationality. It also provides a means of understanding what is wrong with

51 adaptive preferences from a Nozickean perspective, as I will discuss in the end of the next section.

2: What’s Wrong with Adaptive Preferences?

Having come to understand what precisely is unique about an adaptive preference, and hopefully shed some light on what explains the existence of such a preference, I now turn to a discussion of what exactly is normatively bad about such preferences. The core concern that is relevant to us here is that such preferences are not really autonomous.

Elster himself is largely concerned by adaptive preferences’ non-autonomous nature. The tests he devises to discern whether adaptive preferences are at work largely have to do with making sure autonomy exists; his complaint about adaptive preferences is that they preclude autonomous frustration, which is experienced when our autonomously chosen preferences are taken out of our feasibility set. Elster quite explicitly refuses to define either autonomy or “autonomous wants,” instead identifying situations where non- autonomy is definitely not a factor (Elster 1982, 228). Some further developments by other authors provide a bit more clarity on the non-autonomy of adaptive preferences.

Colburn focuses on the process of adaptive preference formation, arguing that the “moral badness” of such preferences stems from their “covert influence (that is, explanations of which an agent herself is necessarily unaware)” (2011, 53). He uses the example of subliminal advertising – if I see a subliminal advertisement for ice cream, and thus want to go eat ice cream, my “preference” for ice cream will only survive until I am informed 52 that this preference’s cause was the subliminal advertisement. The advertisement only works as long as I am not aware of its effect on my preference for ice cream (Colburn

2011, 64-65). A non-adaptive preference change, by contrast, can be explained to the person whose preferences changed without undoing that change. As Colburn states the issue, both the third and first person perspectives on what explains a non-adaptive preference change will be the same; they will differ for an adaptive preference change, in which the third person perspective is aware of the correct explanation while the first person perspective is not (2011, 66).

Why is Colburn opposed to covert influences? He argues that such influences take away our independence, which exists when we are “in a state where [our] reflection is, or would be if it took place, free from factors which limit the extent to which we can say that she decided for herself” (Colburn 2011, 63). We aren’t really involved in the formation of an adaptive preference; the environment and our unconscious are the only entities necessary to explain such a shift. As far as our conscious self is concerned, an adaptive preference change happens to us, not because of us.

Donald Bruckner is interested in the same question of what makes an adaptive preference morally bad, but provides a different answer. Whereas Colburn focuses on the process of adaptive preference formation, Bruckner is more concerned with how we would feel about an adaptive preference were we to reflect upon it. Thus, not all adaptive preferences are “bad,” just those which we would no longer endorse if we reflected on

53 them after they have been formed. Bruckner refers to this test of good and bad adaptive preferences as “reflective endorsement” (2009, 317). Much of this approach is motivated by the concern that many of our preferences are produced via contingent causes and yet are not morally bad, i.e. happen to us rather than because of us. The moral badness comes in if our conscious self would not endorse our preference if it we had reflected on the initial formation of the preference. In essence, Bruckner argues that if a preference would have initially been formed based on rational deliberation, that preference should be morally acceptable even if we do not reflect on the decision until later. Indeed, Bruckner goes so far as to suggest that “adaptive preferences carry a presumption of normativity,” i.e., we should assume that an adaptive preference is morally good unless reflection actually occurs and the preference is rejected (2009, 318). Thus, if reflection never occurs, the adaptive preference is to be treated just like any other preference a person has.

2.1: Imagination, Adaptive Preferences, and Libertarianism

One can connect Nozick’s comments on rationality and imagination with other aspects of his work that have more to do with his libertarianism and thereby make the normative badness of adaptive preferences clear. One way to do so has to do with individuals and their capacities as value-seekers, which, as we shall see in Chapter Four, is the foundation of the respect for rights that is at the core of Nozick’s libertarianism. Irrationality is inherently problematic if we find Nozick’s notion of organic unity as value persuasive – if we are irrational, we are not really unifying the disparate elements of our life, but instead are allowing inconsistencies to continue to exist for the sake of our own of 54 mind. Perhaps even worse, we might not even try to incorporate some values, or forgo some means of performing such incorporation, because we have an irrational view of the possibilities available to us, that is, an adaptive preference. We can see this problem clearly in Nozick’s description of how value-seeking might actually operate for an individual person seeking to unite self-interest with morality and thereby achieve, at least from Nozick’s perspective, a more valuable life:

“Insights and notions also are deepened by living a certain way. This

suggests another procedure. Starting with a person’s own view of the best

life and the most moral life, transform him so that he leads this best life (in

his view) while also leading as moral a life as is compatible with this best

life; in addition, let this life include philosophical discussion of these

(initial) notions of bestness and morality. As a result of leading this

reflective life in accordance with his own notions of bestness and of

morality (insofar as this is compatible with bestness), these notions of his

might undergo change. If so, the same procedure is repeated” (1981, 505-

06).

Nozick does not really believe that most people, or even anyone, will engage in this process as described, but he does note that “Although we do not actually undergo this full iteration, we do sometimes change our conception of how we should (best or most morally live), and change accordingly (though not always fully) how we actually do live”

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(1981, 506). Of course, imagination has a key role to play here in arriving at new conceptions and figuring out what new behaviors they require of us, not to mention how to actually manage to engage in such new behaviors within the constraints of our present lives. Adaptive preferences, then, present a threat to this process of self-reflection and personal development that should be of some concern to Nozick.

The second way to connect Nozick’s arguments on rationality and imagination with the rest of his corpus is to expand our view upwards, from the individual to society as a whole. Nozick notes this societal connection in The Nature of Rationality, where he writes:

The question “What alternative novel possibilities are there?” is the first

step in human progress, in generating new theories, new inventions, new

ways of making, acting, cooperating, thinking, and living. To ask this

question requires a willingness to break with tradition, to venture out into

unknown territory. To answer requires the ability to think up new and

fruitful possibilities; that is, it requires imagination (1993, 174).

As he noted in Anarchy, Nozick does not think that this kind of imaginative progress will engage every person:“Not everyone will want to explore possibilities in all areas, and it would be inefficient for everyone to try” (1993, 174). But even though not all of us will engage in imaginative progress, and no one will engage in making such progress in all

56 areas, “We benefit from the activities of others and from the differences among us that lead others to do, and think of, what we ourselves would not” (1993, 174). Nozick cites

Kuhn and Hayek here as thinkers who have noted the social benefit of diverse and imaginative ways of thinking with regards to science and respectively. And we can connect the notions discussed here to the operation of Nozick’s own meta-utopia, where those who wish to investigate new ways of living are maximally enabled to do so, limited only by being unable to force anyone to come along for the ride. It is rationality, then, that is at the core of progress, at least once we understand the role of imagination within rationality. This gives us another reason, from a libertarian perspective, to think that the failure of imagination represented by adaptive preferences is worth investigating.

3: Inverse Adaptive Preferences

Imagine the following modified version of the Fox and the Grapes. A fox lives in a vineyard. The fox likes grapes, up to a point. But what the fox would like to do is eat grapes and apples, at least upon reflection, and he often goes over to the nearby apple orchard. At some point, though, the vineyard becomes super-abundant; the fox is just swimming in grapes. After this occurs, the fox starts eating many more grapes and many fewer apples. Sometimes his friends bring back an apple when they come back from the orchard, which the fox enjoys as much as ever. By the time the fox is fully grown, he never leaves the vineyard, simply sitting and eating grape after grape. He never takes a moment to reflect on why he now feels a desire to only eat grapes; instead, he just goes with the flow. 57

One explanation for the fox’s behavior is that he is perfectly rational. He may not have actively considered extra benefit he would receive from visiting the apple orchard occasionally and decided that the cost of making the trip wasn’t worthwhile, but if he were to think about the issue he would come to this conclusion. Another plausible explanation is that the fox, facing a situation of easily accessible abundance, has unconsciously changed his preference set to exclude any desire for apples. The grapes are available, and the fox unconsciously has become convinced that grapes satisfy him completely and that apples are worthless.

This latter scenario describes an adaptive preference, even though no option has been removed from the fox’s perceived feasibility set. Instead, the issue is that a readily available option in the feasibility set has produced an adaptation, in this case by convincing the fox that he likes all grapes, all the time, even though he used to want a mix of grapes and apples. Nonetheless, we still have the core of an adaptive preference; an unconscious change in preferences based on the nature of the feasibility set.

Furthermore, this change is not due to the fox’s lack of knowledge (he is quite aware that the apple orchard exists), or cognitive capacity (the fox may well be a genius, as foxes go), or socialization (the fox’s friends have no particular opinions on whether the fox should eat grapes or apples). The issue as I have described it is entirely that the abundance of grapes has led to the fox deciding he likes grapes more than he initially did.

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3.1: Testing the Concept

Just to make sure that the fox really is experiencing an adaptive preference, let us see how the situation comports with Elster’s five characteristics of an adaptive preference.

First, is the preference reversible? As I have described the fox’s situation, the answer must be yes. He does not actually like grapes any more than he used to, nor would he dislike consuming an apple. Instead, the fox has decided that he does not like apples simply because there are so many grapes available.

Second, is the preference caused by a restricted set of feasible options? Here, we must say no, as nothing has removed apples from the feasible set. However, given that Elster’s interest in this characteristic is to distinguish between adaptive preferences and

“deliberative restriction of the feasible set,” I think we remain true to the spirit of an adaptive preference by noting that the fox’s exclusion of apples from his preferences is caused by an expansion in the feasible set, rather than vice versa (Elster 1982, 222). After all, the main “bad” of adaptive preferences for those concerned with autonomy is that the feasibility set more or less “speaks for itself”; we have no conscious involvement in our preference formation in the case of adaptive preferences. Nothing about this “badness” requires a limitation in the feasibility set, per se. What is required is that the feasibility set alone is the cause of our preference. Furthermore, Nussbaum uses the term adaptive preferences in situations where a new feasible option has appeared and individuals do not take advantage of it, as in the case of a woman in India who could be financially 59 independent but does not seem cognizant of this fact (2001). If we are inclined to allow this sort of situation into the definition of an adaptive preference, why not allow a situation where a feasibility set is dominated by an easy and obvious option? The distinction seems fairly fine, even if one is inclined to make it.

Third, is the fox’s preference change endogenous? Certainly. No one has tried to manipulate the fox into changing his preferences; the change was entirely due to the fox’s unconscious reaction to the feasibility set.

Fourth, is the fox’s change in preferences causal rather than intentional? Definitely, as the fox has not sat and deliberated about whether only eating grapes is a good option. He has accepted the new preferences that his unconscious has presented him with at face value.

Finally, is the fox’s change in preferences an issue of perception or evaluation? It is the latter, as the fox has no misperceptions about the apple orchard ceasing to exist, or something along those lines.

3.2: Investigating Inverse Adaptive Preferences

If we allow that overconsumption could be an adaptive preference, a pressing question presents itself: how can we tell if the fox has learned that he likes grapes, or acquired a taste for grapes, rather than adapting his preferences to dismiss apples? We must be quite 60 careful in trying to assess which is the case, given that we cannot access the fox’s internal decision-making. We might begin with Elster’s three situational characteristics that affect the likelihood of adaptive preference formation, as discussed above. First, is the fox free to eat grapes and/or apples, and free not to eat grapes and/or apples? The answer, as I have described it, is yes. Nothing about the situation has rendered apples unavailable – the issue is instead that grapes are too available. Second, does the fox desire to eat grapes even though grapes are unavailable? This situational characteristic has a bit more applicability. The fox wants grapes, but they certainly are available; indeed, this availability is the source of the preference change. However, Elster’s criteria is mostly meant to identify a situation from which adaptive preference formation can be safely excluded. We cannot therefore say that since Elster’s criteria is not met, the fox’s preference for grapes must be adaptive, only that it could be.

Finally, we have Elster’s condition of autonomy for preferences, which excludes the possibility of preference reversals based on the nature of the feasibility set. This last test is, fortunately, a bit more useful for our purposes than the prior two, though we would have to modify our initial story somewhat. Imagine that later in the fox’s life, the abundance of grapes suddenly drops off. The fox could still eat enough grapes to survive, and finding grapes is still extremely easy, but the fox does have to think to himself “I’d like a grape” rather than stumbling over them wherever he goes. If the fox reacts by continuing to eat only grapes, we have some reason to view his choice as autonomous, because it is robust to a change in the feasibility set. On the other hand, if the fox starts

61 going to the orchard more in order to eat more apples, then we would have good reason to think the fox’s prior preference to only eat grapes was an adaptive preference. In other words, if the fox’s grape-only preference is something about the abundance of grapes, rather than the fox’s taste for grapes, then one way to tell is to remove the abundance.

This last test from Elster has us on the right track, but it seems a bit unworkable to only be able to test preferences when the abundance of some good happens to decrease.

Another test is to see what the fox does when presented with apples. If the fox still seems to enjoy apples as much as he used to when presented with them by his friends (as in the story), then we have some reason to think that the fox’s seeming satisfaction with grapes has to do with abundance, not taste. We must be careful, however, to make sure the issue is not one of costs – perhaps the fox likes apples but would decide the trip to the orchard is too far to justify the pleasure. We could of course alter the costs and benefits of grapes and apples in the story in order to take costs out of the picture, but this will not always be an option. A better idea might be to see what the fox does if actively reminded of the availability of apples. If the fox, when actually prompted, still goes to the orchard to eat apples, this suggests that the fox only eats grapes because they are so abundant, rather than any particular taste for them over apples. Assume, though, that reminding the fox about the orchard does not cause the fox to go. Should we accept that the fox’s preference for grapes is authentic and based on the costs of getting apples? Not necessarily; a further test might add clarity. Imagine if one of the fox’s friends convinced the fox to take a trip together to the orchard, and upon returning to the vineyard, the fox exclaims “I love the

62 orchard! Why don’t I go more often?” This would be a reasonable clue to the fox’s preferences for grapes having something to do with their abundance, rather than taste.

We now have some idea of tests that could demonstrate that abundance of a good has produced an adaptive preference. This may well be enough to show that an adaptive preference exists. However, in order to make the case stronger, it is worthwhile to provide an explanation for why abundance in and of itself might lead to preference changes, even though we have excluded issues like salience from our inquiry (adaptive preferences are not a product of cognitive limitations, remember). Most simply, and straight from Elster, we might adapt our preferences to abundance in order to avoid the possible frustrations involved in seeking out other goods. The fox knows he can eat as many grapes as he wants; he can probably go eat apples too, but what if the bridge to the orchard has been washed out, or if the trees have died, or something else of this nature?

Lest we be accused of bringing limited information back in, the questions is not whether the fox lacks information right now, but what the fox knows about the future.24 Right now the orchard may be perfectly fine and available, but the fox cannot predict the future.

Given such unpredictability, should he continue to rely on the existence of the distant

24 Note that this is different from Elster’s discussion of frustration and adaptive preferences, which focuses on avoiding immediate frustration by assuming that the present state of affairs is immutable. This difference is simply an issue of whether the adaptive preference concerns a reduced feasibility set (as in Elster) or an abundant feasibility set (as in the case of overconsumption). If I cannot currently get something I want, I will be frustrated right now; if there is something that is incredibly easy to get, I might accept it in order to avoid future frustration should I try to pursue some less abundant good and fail to obtain it. 63 orchard, or should he rely on the abundance of the vineyard that is his home and which he experiences every day? There is certainly some logic to the latter choice.

Having hopefully provided a reasonable argument for why abundance might produce adaptive preferences, we will now turn to a more grounded issue: is the consumption of material goods in well-off societies an instance of abundance producing an adaptive preference?

4: Is Overconsumption an Adaptive Preference?

It is important to make clear that I do not want to argue—because I think the position is empirically untenable—that material wealth is always pursued because of an adaptive preference. I have a less strident argument in mind; that some amount of some people’s pursuit of material wealth is due to an adaptive preference, and that distinguishing between rational and irrational consumption is an epistemological possibility. To return to the example of the fox who, upon reflection, would like some mix of grapes and apples rather than just the abundantly available grapes, many people in contemporary American society probably want, upon reflection, to live a life that entails some material consumption and some amount of more pro-social activity, rather than a life that is as heavily weighted towards the abundantly available option of consumption. I would therefore like to show three things: (1) that the pursuit of wealth is an “abundantly available” activity; (2) that people pursue wealth in ways that seem incongruent with

64 their own interests; and (3) that the seemingly “irrational” portions of the pursuit of wealth cannot be fully explained without bringing in adaptive preferences.

4.1: The Pursuit of Wealth as an Abundantly Available Activity

The first demonstration, that the pursuit of wealth is an abundantly available activity in well-off states, is I think the easiest and least controversial of the three. By abundantly available, I simply mean that the choice of maximally pursuing material wealth is hugely widespread within most well-off people’s feasibility sets of how they might spend their time. There is almost always an extremely obvious available choice to pursue material wealth. An anecdote might provide some help: When I entered into law school, I met quite a few people who intended to work in some public interest field, like human rights or criminal defense. When we were leaving law school, many people certainly went into these types of work. But about twice as many people went to work in the private sector.25

The school I attended was quite public interest oriented, as these things go, but my own subjective experience was that while public interest dominated classroom discussions, private law dominated discussions about prospects after graduation. One was frequently reminded that public interest was an option; but one was constantly reminded that the private sector was an option, so often that it can barely be described as “reminded” rather than “reinforced.” The effect of all this was not that every person who wanted to do public interest when they entered law school decided not to, or that everyone who

25 See http://www.law.yale.edu/studentlife/cdoprospectivestudents5yearemployment.htm. 65 decided to go into the private sector did so because they had been brainwashed or something to that effect. But I think that for some people, the choice to go work at a law firm wasn’t so much a rational choice as a certain kind of settling – settling for the option that was most obvious, because it was the most obvious. Whether or not this actually describes the law school I attended is of course disputable, but I hope that the anecdote at least helps to show what it might look like for the pursuit of material wealth to be an abundantly available option.

Thinkers disagree about whether the abundance of the pursuit of wealth is a thing to be praised or condemned, but the existence of that abundance itself is hard to dispute. I think many people will recognize this state of affairs quite readily. When we watch TV, are not the vast majority of ads for material goods? Is not one of the main attributes of the successful people we see on TV that they have material wealth? Do not politicians, when they tell voters that the future is bright for our children, mean that our children will be richer than their parents were?

4.2: The Rational Pursuit of Wealth

The second issue, whether the well-off pursue wealth more than seems rational in light of their own expressed or implicit interests, is far more controversial. The question is important, however; if there are good reasons to think that individuals are not pursuing their interests by pursuing wealth, then there is at least space for an adaptive preference to exist. We will focus here on various aspects of well-being, as it is discussed in positive 66 psychology; this is not Elster’s concern when he discusses adaptive preferences, but given widespread interest in achieving well-being at least some of the time, I think examining the relationship between wealth and well-being is a reasonable way to assess whether there is anything to be initially suspicious of in the pursuit of wealth.26

I certainly do not think that the pursuit of wealth is irrational all or even most of the time for most people. Material wealth has a great many uses, and it is perfectly reasonable to think in this context that the pursuit of wealth is a rational choice regardless of what one reflectively wants out of life. However, I do think that there is reasonable evidence that some pursuit of material wealth is irrational, even within the context of . There are two types of arguments here, both of which have some empirical evidence for their existence: (1) that the pursuit of wealth sometimes is not the best choice for advancing one’s interests, but still advances those interests to some degree; (2) that the pursuit of wealth is actually counter-productive, leading to a loss with regards to one’s interests.

First, is the pursuit of wealth a reasonable way to advance one’s reflective interests? That this is at least sometimes not the case is probably obvious to most people. Who does not sometimes seriously think to themselves that it would be nice to make 10% less in exchange for going home an hour earlier every day, or not having to do extra work on the

26 Lest I be accused of smuggling in some sort of here, I should note that positive psychology is quite focused on subjective preferences; their findings, for the most part, have to do with what activities research subjects report a greater or lesser preference for, rather than what makes them explicitly “happy” or some other more loaded term. Indeed, there is a large debate in positive psychology over whether and to what extent “happiness” and “well-being” are synonymous terms, centered around a debate between Subjective Well-Being and Eudaimonic Well-Being. For a review, see Ryan and Deci (2001). 67 weekends? I at least have heard such sentiments from a variety of people. Some did the extra work because they were worried about losing their entire job, but others had no worries about any larger consequences (i.e., a lawyer who is in private practice at a co- owned partnership) but nonetheless continued to work the extra time. And that the pursuit of wealth is sometimes an adaptive preference is all I wish to suggest.

There are also a variety of studies in positive psychology that suggest activities that might produce more good for most people than the pursuit of wealth. As a few examples, Wills finds that the standard of living is the single most important component of well-being, but is only slightly more impactful than health, life achievements, social relationships, and physical security (2009, 61). Tay and Diener find that while basic material needs are the largest component of life evaluation in Europe and Anglophone countries, social relationships and feeling respected are the largest components predicting positive emotion, and lack of autonomy is twice as important as basic needs in predicting negative emotion (2011, 358). King and Napa (1998) find that when evaluating the desirability of other peoples’ lives, the reported happiness and meaningfulness of that other person’s life were far more important than that other person’s income (1998, 160-62). Diener et al. find that national happiness is correlated just as highly with rights, equality, and individualism as it is with material wealth (1995, 859). Outside of positive psychology, there is the line of research stemming from the “Easterlin Paradox”: that well-being within countries has a good deal to do with actual income, but that well-being between countries, as well as over time within countries, seems largely divorced from actual income (Easterlin 1974; Easterlin 1995; Easterlin 2005). Even those who disagree with 68

Easterlin that income produces happiness largely as a mode of social comparison often suggest that while objective income produces well-being, the rate of marginal return rapidly declines at some point (Setevenson and Wolfers 2008, 25). Kahneman and

Deatonto attempt to combine both sets of arguments, suggesting that income stops producing benefits for positive emotion around $75,000, but that income past that point still serves to increase life satisfaction (2010).

This is just a smattering of results, but hopefully the general finding that things other than material wealth make important and direct contributions to well-being has come across clearly. There is, unfortunately, not a great deal of work that actually puts various types of activity “head to head” in order to see what produces the most benefit for most people when one has to choose between different sources of well-being, but the very large benefits identified in the positive psychology literature from a variety of non-material pursuits strongly suggest that more material wealth is likely not always the best choice if one has any interest in one’s own perceived well-being.

There are, of course, quite reasonable criticisms of research into the link between well- being and material wealth, especially as the basis for judgments of irrational behavior.

One of the most direct counters comes from Glaeser et al. which suggests that while working hard really does not always improve happiness, and may even decrease it relative to working less, people who work hard are nonetheless making a rational decision (2016). While the pursuit of wealth in and of itself does not produce well-being,

69 working harder produces higher wages which can then be spent on other sources of utility like taking care of one’s family (Glaser et al 2016). Whether or not this is persuasive will have a good deal to do with how important one thinks well-being is to most peoples’ interests; the King and Napa study cited above, for instance, suggests that individuals tend to value happiness and meaningfulness a great deal with regards to the desirability of a given life. And even if we think some other good is an important component of the good life (for example, status), we would then need to explain why consumption is necessarily the best means of achieving that end. For example, regarding status, we can imagine nearly any attribute humans might possess conferring status upon them.27 There is no reason why material wealth need be the thing that confers status, as opposed to, say, charitable donations or lack of carbon footprint. We are thus left with the need to examine the rationality of the pursuit of wealth relative to well-being, as status can be structured along most any set of indicators.28

However, we are faced with a further and related problem when it comes to consumption and adaptive preferences: how are we to know that a seemingly irrational decision is caused by an adaptive preference, rather than the admittedly powerful forces of cognitive

27 It may well be that the best way for some individuals to attain status is to gain material wealth. Other modes of status might not be as readily available to such a person. I am dubious that many people fall into this category, but insofar as they do, their consumerism would not be irrational. 28 We should also differentiate between status as a positional good that one can only have to the degree that others lack status, and status that can be shared equally. For instance, wealth would seem to constitute positional status, while citizenship would be an issue of equal status. It is not at all clear to me as an empirical matter that the positional kind of status is a necessary component of the good life, but this would take us quite a ways from the focus of this project. 70 limitations or socialization that we excluded from the definition of adaptive preferences above? I think distinguishing between irrational and rational losses of well-being, and distinguishing between adaptive preferences and other sources of irrational decision- making, can both be dealt with using the same set of tests.

4.3: Consumption and Adaptive Preferences

How can I argue that we are dealing specifically with a case of adaptive preferences with respect to a wildly complex area of activity like the economy, and given that I have admitted that precisely the same external behavior could be rational or irrational, and, if irrational, have been caused by any of a variety of possible mechanisms? We have some clues from the sources above, but these are pitched at the level of aggregates; how could we know that any given individual is being irrational? Some consequentialists would view the suspicion of aggregate irrationality as enough for government intervention, and I tend to agree; but here, I would like to say that we might be able to pick out in a more fine-grained way individuals, or at least sub-populations, who seem especially likely to be operating based on adaptive preferences. We need at least four tests: (1) an irrationality test; (2) a limited information test; (3) a cognitive limitations test; and (4) a socialization test. I will describe these tests to ensure the non-adaptive preference option is excluded. Any preference that “passes” the tests will necessarily be an adaptive preference, but failing one or more tests is not sufficient to prove that a preference is not an adaptive preference. In other words, these tests focus on avoiding false positives, at the expense of producing some false negatives. 71

I think one test can cover all four issues if we emphasize the common component of

“adequate reflection.” An adaptive preference would be an irrational behavior that continues even after information, cognitive capacity, and socialization have been ruled out. These determinations can only be precisely identified if we know what someone’s reflective preferences are, which I take to mean “considered and informed.”29 If a person takes some time, is provided with relevant information, and prompted to actually engage with the relevant set of decisions, then the resulting preferences are as close as we can get to reflective preferences without adding in some objective list of what people want.

How might we actually conduct such a test? One reasonable option, I think, is to combine some conception of possible preferences and then interview individuals or a sample of the sub-population of interest.30 For instance, let us say that we believe that self- employed (i.e. cannot be fired) individuals who make, say, more than $75,000 a year would probably prefer to spend most of the time spent on work past the $75,000 point with their family instead. To determine if this is true, it is not enough to just ask the interviewees if they would like to spend more time with their families – some sort of suite of options must be laid before them. The goal is to force a certain amount of reflection on

29 This notion of a reflective preference is essentially the same as that employed by Richard Thaler and Cass Sunstein in Nudge: Improving Decisions about Health, Wealth, and Happiness (2009). 30 Convincing individuals to actually experiment with other life choices might provide better evidence for rational or irrational decisions, but I think such an approach is likely too costly to employ as a test; I will return to this possibility, however, as a possible therapy for adaptive preferences once we have determined such preferences exist in a given sub-population. 72 how one’s choices relate to one’s considered preferences. So, in the present example, one might ask the interviewer to take ten minutes and rank order some set of possible preferences (income, family time, health, sex life, kid’s education, etc.). Then, ask a series of questions in which the interviewee is forced to consider trade-offs between these various preferences – how much income is each hour of family time worth? Another set of questions should access whether or to what degree the interviewee is well-informed about the possibilities available to them, and whether they feel subject to social pressures to make a certain decision. It would also have to be established whether a behavior typically was due to rash decision-making, perhaps by inquiring into how busy or stressed the person is as a general matter. Best of all would be if the interviews were repeated over time, say the course of a year, to capture the person’s considered judgments under various circumstances. This sort of test, at least if conducted at the level of sub- populations, would not be hugely expensive, but would at least provide some reasonable measure of whether a given behavior is rational according to the decision-maker. The

“reflective interview” process, because it involves active engagement rather than mere

“receivership” of expressed preferences, would hopefully also avoid some of the very issues with adaptive preferences we are trying to avoid. Nussbaum, for instance, suggests that women’s lack of desire for better hygiene in poor Indian communities was reversed once an inquiry went beyond just asking the women to list what was important to them

(2001).31 On a similar note, this test should manage to provide enough information that

31 For instance, watching empowering videos is often enough to enrich women’s sense of possibility. Nussbaum (2001 74). 73 no matter what it is about adaptive preferences, or some adaptive preferences, that we find morally wrong, we will be able to make a reasonable judgment about whether the present adaptive preference is wrong – there may be some disagreement about the moral implications of this test, but I think all the theorists discussed above would at least agree that the test is getting at the relevant information.

How would we know that there is an adaptive preference at work in the example of the well-off self-employed? Imagine that a good number of the interviewees (1) expressed a desire to spend more time with their families; (2) were shown to have a reasonable understanding of the costs and benefits of making such a decision; (3) did not seem to be overly busy and therefore subject to fast rather than slow decisions; and (4) did not perceive a great deal of social pressure at play. We would then have a reason to think that insofar as the sub-population does not spend more time with their families, they must be behaving irrationally due to an adaptive preference.

One problem here that we do not have continuous control over how much time we spend at work. That is, I cannot choose precisely down to the minute, or probably even the hour, what my job requires in general, much less on any given week or day. And finding a new job is not an easy task for most people, and any new job will present the same set of problems. People’s actual options are likely to be a choice between a limited number of jobs that each carry with them an average workweek, with greater or lesser variance around that average. So one job might average a 40 hour work week, plus or minus 5

74 hours, while another job might average a 30 hour work week, plus or minus 20 hours. If one cannot actually get a job that has the right benefits to work-time ratio, then it would seem that we have a case of an adapted preference rather than an adaptive preference.

The fact that such a person might overconsume material goods is then simply them making the best of their job options; they may as well gain back some utility via consumption, even if they would prefer to spend time away from work, if they cannot actually find a job that would provide enough money with reduced hours. If I am choosing between being a lawyer and being a freelance writer, for example, I may accurately decide that though I would really prefer to work half as much and make half the salary that the lawyer does, I am still better off as a lawyer than as a freelancer who works a quarter as much as the lawyer but also makes a quarter the salary. We therefore need some sense of the job market that is relevant to our test subjects as well; some measure of the economic situation in a person’s geographic area combined with that person’s educational background might suffice, to begin with.

Is there any prospective reason to think some subpopulation might be particularly likely to pass the above test? My initial guess is that the middle class is the likeliest source of such adaptive preferences vis-à-vis material consumption. The less well-off will have many good reasons to pursue material wealth, and will also likely be more subject to lack of information, cognitive biases due to lack of leisure time, and social pressures from a lack of economic independence. The very rich, on the other hand, have so much available time and so little need for more money that their continued pursuit of more wealth seems

75 most likely to reflect some a rational preference for that type of work. The middle class are wealthy enough that they should not be as subject to non-adaptive sources of irrationality as the poor might be, while also not having so much material wealth that all types of lifestyle are equally abundant within their feasibility set.

5: Constraints of Inverse Adaptive Preferences

The key insight that the adaptive preference approach points us to is that when overconsumption is produced by an adaptive preference, that behavior is preventing the decision-maker from pursuing their own best interests as they would perceive them after a relatively limited amount of reflection. Some sources of irrationality require us to fight against a person’s current considered preferences in favor of their long term interests or their moral responsibilities, or at the very least to provide some new and effective education to make people aware of what they should want. “Curing” an adaptive preference requires undoing the distortive effects of overabundance of the pursuit of wealth by helping people “remember” what they already know, i.e., helping people recollect their initial and now suppressed or ignored preferences for non-material pursuits.

Regarding normal adaptive preferences, I have already noted that therapy can entail something as simple as showing women in India a video describing how other women in the same position have empowered themselves (Nussbaum 2001). However, there is good reason to think that this kind of simple intervention is not possible with regard to inverse 76 adaptive preferences, especially overconsumption. The problem is identified by Singer in his critique of Nozick’s utopia:

Could a community maintain its dedication to an austere life of virtue if it

were surrounded by the flashy temptations of America [sic] capitalism?

Nozick would say that the choice between austere virtue and flashy

temptation must be left to the individual; but doesn’t this assume an ability

to make free rational choices that most people simply do not possess? Is

the free flow of information sufficient to wash away the encrusted muck of

billions of dollars worth of advertising for a style of life devoted to the

acquisition of consumer goods and the elimination of stains and odors? …

people may make choices, but they do so under given historical

circumstances which influence their choices. We do not enable people to

govern their lives by giving them a “free” choice within these limits while

refusing to do anything about the contexts in which these choices are made

(Singer 1981, 38-39).

This would seem to be quite a reasonable concern not only with regards to Nozick’s utopia, which we will investigate in the next chapter, but also with regards to the usual modes of therapy for adaptive preferences. The problem is that giving people more information about alternative ways of life will only be effective if it somehow overcomes the gravitational pull of all the information about a consumer way of life that is itself the

77 cause of the inverse adaptive preference for overconsumption in the first place.32

However, we should not think that Singer has identified a solution to this problem himself. After all, precisely the same forces that make it difficult to resist consumerism will make it difficult to change the context in which individual choices are made via institutional reform. The same powerful interests that constantly reinforce the ubiquity of consumerism are equally capable of accessing the levers of government, at least as the latter is currently constituted. Thus, although Singer argues that some form of paternalism might be justified, it is not clear where the resources to render such paternalism a plausible possibility will come from. It is no matter of mere chance that Thaler and

Sunstein’s influential form of “” avoids foundational social problems in favor of solving problems of individual choice that are more limited in scope, like picking healthy foods or encouraging organ donations (Thaler and Sunstein

2009). This is not to say that libertarian paternalism is not a helpful theory to have, merely that it has been successful precisely because it can fit into a generally consumerist society without undermining the goals of powerful interest groups. My general point is that what Singer has identified is a more general constraint on any possible solution to consumerism than even Singer seems to acknowledge. Any plausible solution for the inverse adaptive preference that underlies overconsumption will have to account for the information environment that produced the preference.

32 This is not to say that the information constitutes a form of brainwashing or anything to that effect – the impact of advertising here has less to do with tricking people into wanting a particular product than the cumulative effect advertising in general has on constituting an adaptive preference for the material good life. 78

One way of pursuing such a plausible solution is to consider whether there is any way to turn the forces employed in support of consumerism against themselves. If the relevant forces do not necessarily support consumerism – that is, if there is some separation between force and outcome – then there is room to employ the same forces that support consumerism in pursuit of a different kind of society. As an example, consider the neoliberal emphasis on individual responsibility. We can see how this ideological force supports consumerism: each individual is constructed as a center of decision-making power, which is necessary for a society of individual consumers. But individual responsibility does not necessarily lead to consumerism; it may preclude certain forms of welfare policy, but there is room within this ideology to move away from consumerism and towards alternative ways of life. Singer, for instance, emphasizes individual responsibility as much as any advocate of neoliberalism.33 Or take the emphasis on the pursuit of individual preference satisfaction within the market. Again, we can see how this ideology supports consumerism. But it is equally true that individual preference satisfaction can take a different, more pro-social form – the satisfaction of preferences will produce different results depending on what one’s preferences actually are. Indeed, as a general matter, the only ideology that necessarily supports consumerism is the vision of the good life as a matter of material consumption (Weber 2002).

33 Perhaps this is why Singer’s argument has found traction with the Davos set of international entrepreneurs and financiers. 79

The core question, then, is how to overcome the construction of individual preferences for material consumption, using the other ideological forces that currently support neoliberal consumerism but could, at least in theory, be turned against it. I noted in the

Introduction the ways that some versions of the open society fail to fulfill this role, as they require individuals already to have the kinds of preferences (for truth or justice) that can only be achieved in behavior once people are already unstuck from consumerism. In other words, the open society as described by Mill, Popper, or Gaus is not a solution to the problem of consumerism, but actually requires that this problem be solved before the open society can be realized. As a general matter, a solution to overconsumption must have some sort of narrative about how the forces that produce consumption in the first place are to be overcome. Marxist theory possess such a narrative – capitalism will produce internal contradictions that eventually produce both a consciousness in favor of a post-capitalist society and the concentration of power necessary to act on that consciousness. This may be true over some particular timeframe, but it does not seem to offer a solution to consumerism in the foreseeable future, precisely because consumerism seems to be a self-reinforcing system via the production of inverse adaptive preferences.

Another possible solution is simply to rely on the democratic process, as we have for several hundred years in the United States. It is not as though people are only consumers, after all, as evidenced by the Progressive Era, the New Deal, and the Civil Rights movement. People are able, at times, to overcome the impulses of consumerism in order to behave in pro-social ways, whether as individuals or in collectives. The problem here

80 is two-fold. First of all, the ability to occasionally overcome one’s consumerist impulses does not provide a real solution to the current divergence between the good life and the moral life. Thus, people are consumers consistently enough that they are not living a truly good life, and suffer because of it. Second, it is notable that the examples cited above can be viewed as expansions of consumerism. To the less well-off, in the case of and the New Deal, and to racial minorities in the case of the Civil Rights movement. In other words, while these movements diminished the political power of certain interest groups, they did not diminish the growth and spread of a consumerist way of life. The difficulty in achieving progress on climate change, which would seemingly require us to combat consumerism directly, is indicative of this general problem. We may happily fight against free markets in our current populist moment, but by doing so we are not really fighting against consumption. The democratic process alone therefore seems unlikely to enable people to move away from consumerism, precisely because democracy relies on those individual voters who are currently “stuck” in the pursuit of the material good life.34

The solution I will propose in the rest of this project relies not on internal contradictions within capitalism, nor on the success of normal democratic politics, but instead on the expansion of those forces within neoliberalism that do not necessarily support

34 It may well be that a more deliberative form of democracy would be better able to deal with consumerism, precisely because deliberation entails the kind of considered reflection that enables people to overcome something like an adaptive preference. My concern here is not with deliberative democracy itself, but the plausibility of implementing a more deliberative form of democracy on a national scale. Doing so would likely require changing individual preferences first, unless we could somehow make the decision to render national politics more deliberative itself a deliberative decision. 81 consumerism. In particular, the neoliberal emphasis on expanding individual choice can be mobilized to expand choice beyond consumerism. As we shall see in the next chapter, expanding choice is precisely the emphasis of Nozick’s utopian vision. It therefore offers up the possibility of undermining consumerism, despite (or rather because of) its roots in a relatively extreme form of libertarianism.

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Chapter Three: Nozick’s Meta-Utopia

This chapter is meant to show how Nozick’s utopia would solve the problem of consumerist adaptive preferences discussed in the last chapter, and thereby contribute to helping people actually live up to their own conceptions of the ethical good life. Nozick’s form of utopia is uniquely suited to our purposes because it aims to be appealing for all individuals, as long as their desires do not extend to illegitimately coercing others.35

Nozick’s utopia should therefore only be controversial among those who wish to coerce others, in principle if not in practice. This chapter tries to show that Nozick’s utopia is indeed a form of open society, as the same mechanisms of freedom and knowledge work to expand real opportunity as in Popper, Mill, and Gaus. The difference is that Nozick’s society is, in fact, hardly a singular society at all – it instead consists of many smaller associations, whose only necessary communal goal is the provision of internal and external security and ensuring rights of exit and founding so that individual citizens can pursue their own best possible world.

35 I am simply using Nozick’s own arguments as the basis for legitimacy in this chapter – legitimate coercion would then cover various forms of self-defense or the pursuit of restitution. This is not to say that this view of legitimacy is the correct one more generally, but it is helpful to employ Nozick’s terminology when discussing his philosophy. 83

The chapter proceeds in four parts. First, I aim to describe Nozick’s idealized form of utopia, which takes place as a thought experiment rather than in the real world, and involves imagining one’s best possible world and its inhabitants. Second, I discuss

Nozick’s application of his idealized model of utopia to the real world, which involves certain changes in the form of utopia that mean we are less likely to achieve fully our own best possible world, but can still try to approximate it as closely as possible without the use of coercion. Third, I examine Nozick’s discussion of Utopia’s inhabitants, in particular his argument in favor of the fact of diversity with regards to each person’s best possible world, and his typology of different sorts of utopians. Fourth, I cover various problems and concerns that Nozick himself identifies with his notion of utopia, which sets up the next chapter’s examination of whether or not Nozick’s utopia is as appealing as he suggests.

1: Nozick’s Meta-Utopia

Nozick begins his discussion of utopia by noting that his idea of the minimal state hardly seems utopian in character:

No state more extensive than the minimal state can be justified. But doesn’t

the idea, or ideal, of the minimal state lack luster? Can it thrill the heart or

inspire people to struggle or sacrifice? Would anyone man barricades under

its banner? It seems pale and feeble in comparison with, to pick the polar

84

extreme, the hopes and dreams of utopian theorists. Whatever its virtues, it

appears clear that the minimal state is no utopia (1974, 297).

Accordingly, Nozick suggests that “[w]e would expect then that an investigation into utopian theory should more than serve to highlight the defects and shortcomings of the minimal state” (1974, 297). We should hardly be surprised that his investigation has quite the opposite effect, and serves to illuminate the utopian character of the minimal state. Or so Nozick argues, at least.36 In fact, his depiction of utopia implies, as I will argue, a more than minimal state, at least with regard to redistribution. First, however, we must come to some understanding of what Nozick thinks utopia consists of. Although summaries exist of Nozick’s utopia, the text itself is so little read that I will go into some detail as to its contents.37

Nozick immediately notes a dilemma that presents itself when we consider utopia: “The totality of conditions we would wish to impose on societies which are (preeminently) to qualify as utopias, taken jointly, are inconsistent” (1974, 297). In other words, it is not possible to realize all good things at once, a “regrettable fact about the human condition,

36 Bader points out that Nozick is actually making three distinct arguments in this chapter: (1) that the minimal state is inspiring because it is utopian, (2) that the minimal state is the basis of all non-coercive utopias and therefore presents a common ground for different utopians, and (3) that the minimal state is the best means of actually realizing utopia relative to our present state (2013, 256). 37 Indeed, it is essentially possible to list the entire corpus of analysis of Nozick’s utopian arguments: Bader 2010; Bader 2013; Hailwood 1996; Hunt 2015; Kukathas 2013; Lacey 2001; Lomasky 2002; Singer 1981; Wolff 1991. None of these works describe Nozick’s meta-utopia as a form of open society, nor do they offer much in the way of detailed description of the meta-utopia beyond its general principles, as they all must analyse and evaluate Nozick’s utopian arguments within a single chapter or paper. As a result, the present chapter should be a useful addition to this literature. 85 worth investigating and bemoaning” (1974, 297). But Nozick’s concern is the “best of all possible worlds,” which means not all goods will be realized to their fullest degree all at once.38 The question, then, is “[f]or whom,” as “[t]he best of all possible worlds for me will not be that for you” (1974, 298). But “[u]topia… must be, in some restricted sense, the best for all of us; the best world imaginable, for each of us” (1974, 298). Nozick’s aim is to provide a theory of utopia that can meet this goal, without relying upon some notion of false consciousness or moral degeneracy to explain away opposition to a particular and therefore controversial best possible world.39 Somehow, each of us must, as we are, be able to realize our own best possible world, alongside everyone else, all at the same time. This is a tall order, and we shall see that Nozick does not fully achieve this

38 In a footnote, Nozick discusses what precisely he means by best possible worlds. In particular, Nozick is concerned with institutions: “Which society is the best possible? That in accordance with the “best” principles of institutional design” (1974, 298). Second, the principle that describes the best institutional design will be a minimax principle, i.e., one in which we are more concerned with avoiding the worst institutional outcomes than possibly achieving the best ones. Nozick argues that “[e]veryone who has considered the matter agrees that the maximax principle… is an insufficiently prudent principle which one would be silly to use in designing institutions. Any society whose institutions are infused with such wild optimism is headed for a fall or, at any rate, the high risk of one makes the society too dangerous to choose to live in” (Nozick 1974, 298). Bader adds to this discussion in two ways. First, he notes that the standard of best-ness appears to be subjective. That is, whatever appears best to the imaginer of the possible world defines whether or not that world is best, rather than some external, objective, or even intersubjective standard (the latter at least enters the picture later when Nozick applies his utopian model to the actual world) (2011, 258). Second, Bader notes that insofar as Nozick is focused on institutions, this leaves the non-institutional aspects of the world constant (2011, 260). Given that Nozick’s sense of institution seems to extend only to formal political institutions, this means that culture more broadly speaking is left constant. This has important ramifications vis-à-vis Peter Singer’s Marxian critique of Nozick’s utopia, which I will discuss below. 39 We must be able to tell “a short nice history” of how to get from people who oppose the utopia to people who find it to be the best possible world. Nozick writes that “[u]topia is where our grandchildren are to live. And the double generation gap is to be small enough so that we all happily realize we are part of the same family. People are not to be transformed” (1974, 298). This stipulation would remove from consideration utopias like that described in ’s Republic, where the creation of the utopia depends upon removing the next generation from their parents and thereby breaks apart their familial ties. Plato might respond that this removal is in order to create a different familial tie to the state, as he attempts to do in the mythmaking portions of The Republic. Nozick would presumably find this objectionable because it is currently existing familial ties that are to be respected, rather than the existence of any familial ties at all. 86 goal, but his attempt is worthwhile nonetheless because the people who find themselves excluded in his utopia are the same people who will find a rights-based polity unacceptable as well, and are therefore already beyond the pale of a liberal society.40

Nozick asks us to:

Imagine a possible world in which to live; this world need not contain

everyone else now alive, and it may contain beings who have never actually

lived. … The other inhabitants of the world you have imagined may choose

to stay in the world which has been created for them … or they may choose

to leave it and inhabit a world of their own imagining. If they choose to

leave your world and live in another … [y]ou may choose to abandon your

imagined world, now without its emigrants. This process goes on; worlds

are created, people leave them, create new worlds, and so on (1974, 299).41

This, then, is the place where we can find the freedom component of the open society. In particular, Nozick’s meta-utopia depends upon freedom of association. Anyone can live in any kind of community they want, as long as they can convince enough people to

40 That is not to say anything one way or the other about whether such individuals cannot be tolerated by a liberal polity, or whether they can or cannot behave illiberally in their private lives, but merely to note that their position on rights is such that they cannot enter into liberal politics except on strategic grounds. Their anti-rights approach cannot be respected, at least at the level of politics, without undermining the general rights that are the starting point for both libertarians and liberals more broadly construed. 41 Rational here meaning “those in virtue of which a being has those full rights that human beings have,” whatever those properties may be (1974, 299). 87 come along with them to make the community workable. More specifically, everyone has two rights: first, a right of exit, and second, a right of founding. What this does not entail is a right of joining – no community is under any obligation in Nozick’s meta-utopia to let any particular person, or kind of person, join. The right of founding does add a component to Nozick’s theory that is not found in the quite similar approach of Kukathas in The Liberal Archipelago, which relies on a right of exit alone (Kukathas 2003). A right of founding is an important supplement to a right of exit, because it ensures that those who are not allowed to join a given community may start their own community instead.

Without such a right of founding, we run into the potential of having “associationless” individuals in society, who will have a similar position to individuals in the real world who are “stateless.” Nozick can also be seen here as making a useful addition to Gaus’ notion of communities of inquiry by describing where such communities come from – in

Gaus, such communities are taken for granted (Gaus 2016, 147-48).

We might wonder whether any imagined possible worlds will be “stable,” that is, will satisfy “one very desirable description… namely, none of the inhabitants can imagine an alternative world they would rather live in, which (they believe) would continue to exist if all its rational inhabitants had the same rights of imagining and emigrating” (1974,

299). It will be the case that in such a stable association, there is no single person or group which could secede and thereby form a preferable stable association. There will, therefore, be no stable associations that consist of one person or group of persons exercising the powers of an “absolute monarch, exploiting all the other rational

88 inhabitants,” as those rational inhabitants would be better off in an association by themselves without exploitative monarchs (1974, 300). This point is generalizable to the notion that we will leave our current association with a given person, or refuse to allow that person to join our association, if the person costs us more than we benefit from them

– “No association will admit me if I take more from the association than I give to it: they will not choose to lose by admitting me” (1974, 301).42 Furthermore, I will not join any association that provides me with less than I give to them, as another association would thereby have an incentive to “poach” me from the first association by offering a benefit to me (or rather, a cost to the association) that is closer to the benefit I offer to the association. Therefore, “[w]e seem to have a realization of the economist’s model of a competitive market,” though we can question whether we have arrived at this point through sheer happenstance or whether Nozick has planned this outcome from the start

(1974, 302). The result is that “[m]any associations competing for my membership”—for each will become a better possible world to the degree that they benefit from my membership—“are the same structurally as many firms competing to employ me. In each case I receive my marginal contribution” (Nozick 1974, 302). So every rational being in

Nozick’s imagined world will inhabit their own best possible association, dependent on it being the best possible world for each of the other rational inhabitants of that association.

That will in turn depend on each inhabitant receiving their marginal contribution to the

42 Presumably, the costs and benefits for the association could be unevenly distributed in some way, which could in an imperfect world lead to admissions or departures that are sub-optimal. But in theory, this distribution of costs and benefits can be negotiated around, with the backstop that people can leave and form a new association if they would benefit more from that option than from whatever distribution of benefits is offered to them. 89 association and that marginal contribution being the highest it could be across the various available associations.

Here, Nozick turns for a moment to a reasonable concern we might have, which is that in designing the other members of our imagined best possible world, we might smuggle in some unacceptable attributes for those persons that undermine “equality in the exercise of rights” (Nozick 1974, 302). That is to say, “[y]ou have imagined them with certain wants, and in particular you may have imagined them as most wanting to live in a world with the precise character you have created, even though in it they are abject slaves” (Nozick

1974, 302). The problem is that such inhabitants would not want to leave for another association where they are not abject slaves, because their greatest desire is to be precisely that. One could therefore imagine a society in which one is an absolute monarch but is not exploiting one’s subjects, as they desire to be slaves. This result seems unacceptable to Nozick, and he therefore adds further restrictions to the kind of world inhabitants we can imagine. In particular, we must avoid what Nozick calls “focused wants,” or desires that are world- or person-specific rather than fulfillable to a greater or lesser extent by different persons or different worlds. So I could desire to be an abject slave, for example, but not in this particular world or enslaved by this particular person.43 This is enough to preserve the market-like structure of Nozick’s imagined set of

43 The desire to be an abject slave would be a general principle rather than a focused want. Another example of such a general principle might be that “everyone in the world… accepts a principle of equal division of product, admitting anyone to the world with an equal share” (Nozick 1974, 304). Such principles have to be accepted unanimously, because people can leave for a different association with a different principle of distribution, but the point stands that it need not be the case that everyone actually 90 best possible worlds while avoiding “the messiness of a frontal assault that describes the constraints on what people imagined are like.” That is, we do not preclude any particular desire, only the way in which desires can be satisfied. It is reasonable to think of this constraint as one on loyalty; we cannot have any sort of loyalty to particular people or worlds and still have the system produce a benefit to us equal to our marginal contribution. Of course, this would not be the case if we valued loyalty in and of itself, and thereby tried to maximize that value across communities; but in that case, it is not clear that we are actually loyal to anything in particular. Regardless, focused wants are banned in order to produce the market-structure of associations.

The possibility of a stable world actually coming to exist, even in Nozick’s theoretical realm, is enhanced by the possibility that the benefit an individual receives from membership in an association is greater than the cost to that association. In other words, although the marginal benefit to each individual from the perspective of the association is the marginal benefit they provide to the association, the worth of that benefit to the individual may be greater than it is to the community. So, “[a] major benefit to a person may come, for example, from coexisting in the world with the others and being a part of the normal social network. Giving him the benefit may involve, essentially, no sacrifice by the others” (Nozick 1974, 306). It does not cost an association anything to be an association, but that fact in and of itself could be of worth to an individual. This is

receives their marginal product, assuming that they hold some principle that provides a different standard for distribution. 91 especially true if we agree with Nozick when he writes “[n]or will a stable association consist of narcissistic persons competing for primacy along the same dimensions,” that is, individuals who all get benefit from the same thing and therefore compete for access to that thing (wealth, power, or something else). Instead, a stable association is likely to:

Contain a diversity of persons, with a diversity of excellences and talents,

each benefiting from living with the others, each being of great use or

delight to the others, complementing them. And each person prefers being

surrounded by a galaxy of person of diverse excellence and talent equal to

his own to the alternative of being the only shining light in a pool of relative

mediocrity. All admire each other’s individuality, basking in the full

development in others of aspects and potentialities of themselves left

relatively undeveloped (Nozick 1974, 306).

It is worth quoting this passage in full because it is an aspect of Nozick that is often overlooked: his view of utopia sounds positively Millian in its emphasis on the group benefits of diversity and individual genius (Mill 2002).44 Of course, we are still in an imaginative realm. Nozick has not yet applied his notion of utopia to the real world, where we must deal with real, rather than imagined, members of an association. But it is worth keeping in mind what Nozick thinks a pure utopian association would consist of,

44 Lomasky also notes this seeming similarity, though he does not make much use of the comparison (2002, 73-76). 92 and how much similarity it bears to Mill. That being said, let us now turn to Nozick’s application of his theoretical model to the actual world.

2: Application

Nozick begins his application of the model to the real world with further notes in the key of Mill:

In our actual world, what corresponds to the model of possible worlds is a

wide and diverse range of communities which people can enter if they are

admitted, leave if they wish to, shape according to their wishes; a society in

which utopian experimentation can be tried, different styles of life can be

lived, and alternative visions of the good can be individually or jointly

pursued (1974, 307).

What Nozick adds here to a generally Millian view of a flourishing society is the notion of not just diverse individuals, but diverse communities. Mill, of course, was quite aware of the power of communities over individual behavior, but tended to be suspicious of this power as a problem rather than itself part of a diverse society. Nozick is not here suggesting a form of , or at least he is not necessarily doing so. The various communities he describes are still united within a single state, albeit one of the minimal

93 variety, and do not seem to possess any particular political powers.45 But communities are the bearers of diversity as much as individuals, an interesting notion coming from a thinker often accused, along with Rawls, of ignoring the power of communities with respect to the individual.46 What Nozick recognizes is that a plurality of different communities can work as an aid to individual flourishing, rather than as an imposition to individual genius.

Nozick goes on to note various ways that the real world diverges from his theoretical model. First, “we cannot create all the people whose existence we desire.” That is, we have got the people who live in the world, and their children, and so forth, rather than imagined people who abide by general principles of our choosing. This means, for example, that “there may be a particular kind of community you wish to live in, yet not enough other actual people (can be persuaded to) wish to live in such a community so as to give it a viable population” (Nozick 1974, 307). Second, in the real world

“communities impinge upon one another, creating problems of foreign relations and self- defense and necessitating modes of adjudicating and resolving disputes between the communities” (Nozick 1974, 307). Nozick seems here to be thinking about relations

45 This likely is because Nozick associates politics with coercive power; there can literally be no politics beyond the protection of security because anything else would involve illegitimate coercion, at least for him. 46 Noting the role of association in life is not the same thing as suggesting that associations constitute individuals. After all, one is meant to evaluate and move between societies in order to find one that is preferable in Nozick’s utopia. This seems a far thing from the kind of tight communal bonds that communitarians tend to find appealing. Nonetheless, it cannot be said that Nozick thinks of individuals in the same way as, say, , in whose novels we find the sort of rugged individualism that communitarians in their more controversial moments falsely ascribe to liberals like Rawls and Nozick. 94 between states in particular, but the concern can arise for sub-state communities as well.47

Third, in the real world “there are information costs in finding out what other communities there are, and what they are like, and moving and travel costs in going from one community to another” (1974, 307). We might also add, although Nozick does not expressly do so, the psychological costs inherent to leaving behind one community and joining another, not to mention the various transaction costs involved in setting up an entirely new community rather than simply moving to an existing one. Fourth, there is the problem of illegitimate community maintenance, as “some communities may try to keep some of their members ignorant of the nature of other alternative communities they might join, to try to prevent them from freely leaving their own community to join another”

(1974, 307). We can also here consider communities that might perform a similar function by failing to prepare their members for life in other communities. For instance, someone who has grown up in an ascetic, technologically unsophisticated community will find it difficult to join a more technologically advanced community, even if they should like to do so.

Given these differences between theory and practice, does Nozick’s model serve any useful function for us who live in the real world? This question can be broken into two

47 It is interesting to consider whether the model for relations between states within the United States might more profitably be pursued on the model of foreign relations rather than as sub-state units, at least with regards to issues other than national defense. It might be preferable to leave more issues up to the states rather than have a national government that is either deadlocked or see-saws between two opposing factions every few years. However, that would also require giving up hope on the national protection of, for example, anti-hate speech legislation for the left and gun ownership for the right. Such a sacrifice might be too much to bear for either side, even if it meant the fuller achievement of their ends in certain states. 95 aspects. First is the question of whether we can and should ignore impossible or improbable but desirable social imaginaries, like Fourier’s seas of lemonade (Nozick

1974, 308). Nozick’s response is partially the standard defense of “ideal” political theory:

One should not be too quick, here or elsewhere, with such fantasies. For

they reveal much about our condition. One cannot know how satisfied we

shall be with what we achieve among our feasible alternatives without

knowing how far they diverge from our fantasied wishes: and it is only by

bringing such wishes, and their force, into the picture that we shall

understand people’s efforts toward expanding the range of their currently

feasible alternatives (1974, 308).

What Nozick adds to the standard defense here is the notion that we will not understand individual behavior without understanding individual fantasies. 1 The role of fantasy in determining an individual’s satisfaction with their current feasible alternatives would seem especially relevant in the age of Trump, where a large portion of the American population seems to be motivated by a vision of America that may never have existed and seems unlikely to come into existence in the future. In that respect, Nozick seems to be on the right track empirically when he declares that “I do not laugh at the content of our wishes that go not only beyond the actual and what we take to be feasible in the future, but even beyond the possible; nor do I wish to denigrate fantasy, or minimize the pangs of being limited to the possible” (1974, 308).

96

We must also inquire whether the less than fully realized model is still the best option relative to other less than fully realized utopias. All utopias will, of course, not be fully realized, but the ranking of fully realized utopias might not be reflected in the ranking of less than fully realized utopias. Perhaps a utopia that is second best when fully realized is nonetheless our best option in the real world – perhaps it is more fully realizable than other options, so we can come closer to the full benefits of that utopia, or perhaps more of the worth of the utopia remains relative to other utopias when it is not fully realized.

Furthermore, as Nozick points out, “[p]erhaps near misses are worse than great divergences.” Perhaps the worth of a utopia drops off so quickly as to make a radically different model more appealing in the real world, even if we could come closer to the first model. Nozick’s answer to this concern takes up the remainder of the chapter.

3: Utopia’s Inhabitants

The core reasoning in favor of even the real world version of Nozick’s utopia is its embrace of multiple utopian communities within one overall framework. It is, in that sense, a “meta-utopia” (1974, 312). The first reason in favor of such a meta-utopia has to do with the fact of human diversity with regard to what the best kind of community actually consists of.

While it is true that “in the actual operation of the framework there will be only a limited number of communities, so that for many people, no one community will exactly match 97 their values and the weighting they give them,” alternative utopias to Nozick’s meta- utopia will essentially consist of one community – one socialist community or one

Marxist community or one capitalist community or whatever (1974, 309). In Nozick’s words, “there will be no way to satisfy all of the values of more than one person, if only one set of values can be satisfied” (1974, 309). Of course, this depends upon diversity regarding the substance of the good society, which Nozick goes on to discuss.

It is simply a “fact that people are different” for Nozick: “They differ in temperament, interests, intellectual ability, aspirations, natural bent, spiritual quests, and the kind of life they wish to lead. They diverge in the values they have and have different weightings for the values they share” (1974, 309-10). Given this fact, “there is no reason to think that there is one community which will serve as ideal for all people and much reason to think that there is not” (1974, 310). Nozick offers a stirring passage in demonstration of this notion that is worth reproducing in full:

Wittgenstein, Elizabeth Taylor, , Thomas Merton, Yogi

Berra, Allen Ginsburg, Harry Wolfson, Thoreau, Casey Stengel, The

Lubavitcher Rebbe, Picasso, Moses, Einstein, Hugh Heffner, ,

Henry Ford, Lenny Bruce, Baba Ram Dass, Gandhi, Sir Edmund Hillary,

Raymond Lubitz, Buddha, Frank Sinatra, Columbus, Freud, Norman

Mailer, Ayn Rand, Baron Rothschild, Ted Williams, Thomas Edison, H.L.

Mencken, , Ralph Ellison, Bobby Fischer, Emma

98

Goldman, , you, and your parents. Is there really one kind of life which is best for each of these people? Imagine all of them living in any utopia you’ve ever seen described in detail. Try to describe the society which would be best for all of these persons to live in. Would it be agricultural or urban? Of great material luxury or of austerity with basic needs satisfied? What would relations between the sexes be like? Would there be any institutions similar to marriage? Would it be monogamous?

Would children be raised by their parents? Would there be private property?

Would there be a serene secure life or one with adventures, challenges, dangers, and opportunities for heroism? Would there be one, many, any religion? How important would it be in people’s lives? Would people view their life as importantly centered about private concerns or about public action and issues of public policy? Would they be single-mindedly devoted to particular kinds of accomplishments and work or jacks-of-all-trades and pleasures or would they concentrate on full and satisfying leisure activities?

Would children be raised permissively, strictly? What would their education concentrate upon? Will sports be important in people’s lives (as spectators, participants)? Will art? Will sensual pleasures or intellectual activities predominate? Or what? Will there be fashions in clothing? Will great pains be taken to beautify appearance? What will the attitude toward death be?

Would technology and gadgets play an important role in society? And so on

(1974, 310-11).

99

This passage demonstrates, I think, the correctness of Nozick’s assertion of human diversity as to the substance of the good, and thereby with respect to the kind of community that is best for each person to inhabit.48 This being the case, real “[u]topia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions” (1974, 312). Such a utopia “is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others” (1974, 312). Of course, even when the option is available, it will be the case that “some…may be content where they are. Not everyone will be joining special experimental communities, and many who abstain at first will join the communities later, after it is clear how they actually are working out” (1974, 312).

The second argument in favor of Nozick’s utopia is brief – even if there is only one objective good for all people, it is likely the case that individuals will differ in the way that they weigh the components of that good (or if there are multiple objective goods, how we weigh each of them).49 That being the case, “[d]ifferent communities, each with

48 However, this sort of seeming subjectivity with regards to the good contrasts with Nozick’s objective definition of the good in Philosophical Explanations and The Examined Life, as Hunt notes (2015, 208, 210-11). My own view is that we can square Nozick’s towards the good with human diversity by remembering that the good can be filled in different ways; the good consists, for Nozick, of a particular structure, rather than a substantive definition. See the last chapter’s comments on value and meaning. 49 Hunt finds this argument more persuasive because it seems to fit better with Nozick’s later objectivity regarding the good (2015). 100 a slightly different mix, will provide a range from which each individual can choose that community which best approximates his balance among competing values” (1974, 312).

And individuals can move from community to community in order to experiment with different balances, or at least learn from other communities’ experiments even if the individual stays at home.

The third argument for Nozick’s utopia requires us to understand the concepts of “design devices” and “filter devices.” The essential notion here is that “people are complex,” and,therefore, even if there is a single society that is best for everybody, it is hard to know what this society would be like (Nozick 1974, 312). One way to arrive at such a society is to use a “design device,” which “constructs something (or its description) by some procedure which does not essentially involve constructing descriptions of others of its type” (1974, 313). In other words, when we use a design device, we do not need to consider other kinds of things than the one we are designing. If we are designing a car, for example, we can do so without reference to all the other designs for cars that exist. Of course this might produce a poor design, but it will be a car nonetheless as long as it has the essential features of a car, which can be defined without reference to any other actual cars. We design the car from a set of principles. Thus, “[i]n the case of societies, the result of the design process is a description of one society, obtained by people (or a person) sitting down and thinking about what the best society is” (1974, 313). Although

Nozick does not name names, one might reference Plato’s approach to politics in The

Republic here – the description of the perfect city does not essentially rely on engaging

101 with either real cities or the perfect cities designed by other thinkers. Nozick argues that the complexity of human beings makes it “enormously unlikely that, even if there were one ideal pattern for society, it could be arrived at in this a priori (relative to current knowledge) fashion” (1974, 313). And even if some “genius did come along with the blueprint, who could have confidence that it could work well” (1974, 313)?50 Of course, the existence of such a genius is quite unlikely. We can imagine, for example, “cavemen sitting together to imagine up what, for all time, will be the best possible society and then setting out to institute it. Do none of the reasons that make you smile at this apply to us”

(313-14)?

By contrast, “[f]ilter devices involve a process which eliminates (filters out) many from a large set of alternatives” (1974, 314). The advantage of a filtering device for “designers having limited knowledge who do not know precisely the nature of a desired end product,” as is true for social designers, is that it “enables them to utilize their knowledge of specific conditions they don’t want violated in judiciously building a filter to reject the violators” (1974, 314). One can also design the filter to become more judicious over time, as the products of the filter improve with regards to the filtering mechanisms; when this is the case, “then one legitimately may expect that the merits of what will remain after long and continued operation of the process will be very high indeed” (1974, 314).51 So,

50 It is an interesting question whether there is some further by actual, living example beyond the kind of logical argumentation, thought experiments, and written examples that philosophy usually proceeds by. 51 Hunt notes that the framework itself is not a filtering device, but an enabling condition that allows individuals to behave as a filtering device via making their own choices about what sort of community they would most like to live in (2015). Communities that people choose to leave are then filtered out, and communities that people join or remain members of stay in. This means that there is no metric for filtering 102 for example, we might consider the same issue of car design. The actual practice of car design in the real world, as opposed to the kind of Platonic approach described above, is more like a filter device. The progress of car design is largely the product of consumer’s choosing which designs they find appealing and buying accordingly. Furthermore, there is some objective progress in car design over time with regards to things like fuel economy or safety features, again generated to a large extent by individual consumer behavior. Actual practices of car design are not purely a filter device – there are still people who literally sit in chairs and try to think of new designs for cars, which exemplifies a design device. But even here, car designers are taking account of the actual history and current status of the automotive industry and market, in a way that Platonic design does not. The general point, which Nozick acknowledges, is that we are unlikely to find pure design or filter devices in the real world, but that when it comes to the rules of society at the most general level, we should design the rules to enable a relatively pure filtering process.

The filter device is where the knowledge generating aspect of the open society appears in

Nozick’s meta-utopia. Again, we can see Nozick’s idea as a useful supplement to Gaus.

Gaus emphasizes the greater ability of diverse perspectives to generate knowledge of actual possible worlds when compared with a singular perspective left to its own devices.

Although Nozick does not make precisely the same argument in favor of diversity, he

beyond what individuals desire to get out of their communities, and how willing they are to bear the costs of changing from one community to another. 103 does provide plenty of room for diversity to operate, and provides strong arguments in favor of treating diversity as a natural fact of human social life. What Nozick adds is an account of how the search for new possible worlds will develop over time. Gaus does not, of course, think that the search for new possible worlds is a one-time event. However, he does not provide much commentary on how such a search might develop over time.

Nozick provides such an account, which has the useful property of not only taking time into account in an explicit way, but also describing how progress might occur over time, as some ways of life are filtered out. This notion of progress lets us link Nozick’s meta- utopia not only to Gaus, but also to Popper and Mill, who had little of the contemporary leeriness towards the concept. Importantly, Nozick provides for the possibility that previously rejected ways of life might have greater appeal in the future. Progress in

Nozick’s meta-utopia is not, therefore, necessarily monotonic, but is instead a matter of finding the best fit within any given context. Of course, the introduction of new ways of life that fit with a given context will necessarily change what the context is, and thus generate a new set of conditions that might generate further new ways of life. Nozick’s idea of progress thus has no necessary endpoint. It is not teleological, at least not beyond the immediate concerns of individuals in a particular social context.

For Nozick, it is important that “one cannot determine in advance which people will come up with the best ideas, and all ideas must be tried out (and not merely simulated on a computer) to see how they will work” (1974, 315-16). As he notes, “[f]or some writers, the most interesting points come after they think they’ve thought everything through and

104 have begun to set it down… How much greater will be the differences between a plan

(even one written down) and the working out in detail of the life of a society” (1974,

315n*)? And “[i]ff the ideas must actually be tried out, there must be many communities trying out different patterns” (1974, 316). In this setting:

Any group of people may devise a pattern and attempt to persuade others to

participate in the adventure of a community in that pattern. Visionaries and

crackpots, maniacs and saints, monks and , capitalists and

communists and participatory democrats, proponents of phalanxes

(Fourier), palaces of labor (Flora Tristan), villages of unity and cooperation

(Owen), mutualist communities (Proudhon), time stores (),

Bruderhof, kibbutzim, kundalini yoga ashrams, and so forth, may all have

their try at building their vision and setting an alluring example (1974, 316).

These attempts might succeed, or require modification, or fail, or all three at different points in time, depending on their ability to find and retain voluntary adherents. And old failures might be “retried” in different circumstances to produce new successes (1974,

317).

Who will find this kind of utopia framework or “meta-utopia” appealing? To begin with,

“[a]ny utopian will agree that our framework is an appropriate one for a society of good men. For good men, [the utopian] thinks, voluntarily will choose to live under the

105 particular pattern he favors, if they are all as rational as he and thus are able equally to see its excellence” (1974, 319). Thus, only those utopians who think that at least some people are incurably corrupt, or at least incurably corrupt without recourse to coercion, will find Nozick’s proposal problematic. That is, if the utopian is right about which society is best, the natural filtering of a Nozickian society will arrive there sooner or later.

This latter sort of utopian Nozick terms “imperialistic,” as opposed to “missionary” utopians who “hope to persuade or convince everyone to live in one particular kind of community, but will not force them to do so” or “existential” utopians, who have a favored kind of community they would like to exist in some capacity but do not particularly care if it is universally realized (1974, 319-20).

Missionary and existential utopians can join together to support the framework. The former kind of utopian will find that if they are right about there being one best community, the framework offers a path to the realization of such a society. The latter will find room to create their own preferred society without having another alternative coercively forced upon them. Imperialistic utopians will be left out, but this is true of any liberal society, not just Nozick’s utopia – forcing people to live in a particular kind of community is precisely the kind of violation of rights that (most) liberals abhor. Nozick’s framework “is compatible with all particular utopian visions, while guaranteeing none,”imperialists excluded (1974, 320). Nozick argues that “[u]topians should view this as an enormous virtue; for their particular view would not fare as well under utopian schemes other than their own” (1974, 320). In other words, unless a utopian thinks they

106 actually can coercively achieve their utopia, now and forever, they will find that their preferred form of society will fare better under Nozick’s meta-utopia. That no such utopia can be achieved coercively would seem to be well supported by various 20th century attempts to do just that. There was no thousand-year Reich, nor a permanent achievement of communism in its pure form. Even liberalism is under attack for failing in many people’s minds to deliver on its notion of the best society. Any enduring society, in other words, would seem to need to have enough appeal to its members that they voluntarily remain, at least over a long enough time horizon.

4: Further Considerations

Nozick closes his chapter with a few comments upon various concerns and questions one might have regarding his vision of a meta-utopia of diverse communities. First, there is the question of whether or not each community must itself be as libertarian as the meta- utopia itself is. Nozick writes that “[t]hough the framework is libertarian and laissez- faire, individual communities within it need not be, and perhaps no community within it will choose to be so” (1974, 320). This carries over into communities themselves, as “[i]t is not a general principle that every community or group must allow internal opting out when that is feasible” (1974, 321). That is, one cannot join a community and then force that community to let them opt out of any requirements one does not like while still remaining a member of the community. Otherwise, the libertarianism of the meta-utopia would be pervasive, and thereby undermine rather than enable the diversity of communities that Nozick argues for. What is interesting, however, is that Nozick thinks 107 such an opt-out clause should exist with regard to the nation as a whole. Indeed, the entire point of Nozick’s minimal state is that one need not participate in any nation-wide program beyond the provision of security, and even there he argues that those who do not want to participate are duly compensated (Nozick 1974, 78).52 What is the difference between the nation and the community that allows the latter to forgo opt-outs but not the former? The answer, Nozick suggests, is the face-to-face nature of community. There is some specific harm involved in having an offensive way of life thrust in one’s actual face rather than remaining relatively far away at the national level. Whatever we make of this distinction, it has two interesting ramifications. It suggests something about the nature of community in Nozick’s utopia, namely that it entails face-to-face interaction. Does this mean a large city, for instance, could not constitute a community? Additionally, the ability to preclude opt-outs in a community leads immediately to concerns about, say, a racist or sexist or homophobic community, in which the thing one might want to opt out of is a policy against miscegenation or women in the workplace or gay marriage. Nozick notes this problem himself, but writes that “[s]ince I do not see my way clearly through these issues, I raise them here only to leave them” (1974,323). We shall return to them ourselves later in this chapter.

52 This is not to say that this argument is necessarily convincing – free riders might not care if they are forced to participate within the security regime of a minimal state, but there will likely be principled holdouts who will not find the provision of free security to be true compensation for their loss. Nor is it clear as a general matter why compensation should make up for an otherwise illegitimate form of interference with a person’s rights. 108

Second, another question we might have regarding Nozick’s utopia is the issue of change.

“Suppose,” Nozick writes, “a particular community is changing in its character and becoming one of a sort an individual dislikes” (1974, 324). Nozick first considers the notion that there might be some nationwide set of rules as to the way individuals should be compensated if a community changes in a way they disapprove of. But this can be avoided, Nozick suggests, because such compensation can be incorporated into the initial contract that one signs in order to join a given community. This allows Nozick to avoid the imposition of any kind of national standard on community life while also incorporating a concern with those who find themselves members of a community in which they have “put down roots, made friends, and contributed” (Nozick 1974, 324).

This would seem to require that individuals be able to predict the kinds of changes in the community that would require them to be compensated; or at least, it requires that individuals can perform this function better than some higher power like the state could.

This does not seem entirely unreasonable, though it is certainly a high standard for individual rationality. This issue, too, we shall return to later.

Third, Nozick concerns himself with some of the common critiques of utopian thinking in general, in order to consider how his meta-utopia copes with them. Nozick groups these concerns into problems of means and problems of ends. Critics note at least four problems in connection with the means of bringing about a utopian society, namely voluntary persuasion. First, it seems unlikely that everyone who needs to be convinced to bring about a utopian society, even Nozick’s meta-utopia, can actually be convinced,

109 because some such people occupy positions of privilege in the present society. Second, even if a utopian society can be brought about without convincing persons of privilege to join, it seems probable that at least some such people will actively interfere (perhaps violently) with the creation of such a society, as it would likely bring about an end of their privilege. Third, it is difficult to imagine that a utopian experiment can survive in a hostile environment, even if that hostility is not at the level of active interference.53

Fourth, one might think that people are presently so degenerate as to preclude convincing them of participating in a utopia experiment, even if it is in their interests to do so because they do not currently occupy a position of privilege and would be better off within the utopia. Nozick rejects this last concern outright:

Believing with Tocqueville that it is only by being free that people will

come to develop and exercise the virtues, capacities, responsibilities, and

judgments appropriate to free men, that being free encourages such

development, and that current people are not close to being so sunken in

corruption as possibly to constitute an extreme exception to this, the

voluntary framework is the appropriate one to settle upon (1974, 328).

Nozick goes on to note that he does not assume that all individuals can be convinced to give up their illegitimate privileges, nor does he assume that they will acquiesce to losing

53 Nozick suggests that in a free society, it is always possible for an experiment to be tried, if its participants want to do so. He references a prior discussion in Anarchy of a worker-owned factory within a capitalist society (Nozick 1974, 254-55). 110 their privilege without putting up active resistance. He does not provide any hints as to

“what legitimately may be done and what tactics would be best in such circumstances,” but it is interesting to note that the possibility of, say, violent is not explicitly ruled out. Lest we think of Nozick as a conservative thinker, this sort of language should enter into the balance against his Lockean notions of private property and self-ownership.

As to utopian ends, there are two common critiques. First, it is thought by some that

“utopians want to make all of society over in accordance with one detailed plan, formulated in advance and never before approximated” (Nozick 1974, 328). This is, of course, precisely what Nozick means to avoid with his discussion of design and filter devices; the latter allow for social change in a way that many utopians employing design devices do not. Second, some accuse utopians of assuming that “the particular society they describe will operate without certain problems arising, that social mechanisms and institutions will function as they predict, and that people will not act from certain motives and interests” (1974, 328). Here, Nozick’s response is simply to admit that the framework is not unproblematic, even from our perspective of a society where the framework is not yet implemented. In particular, Nozick notes problems of how a central authority will be constituted and effectively regulate relations between communities, and between communities and their members in a way that respects the rights of the latter, without going beyond permissible boundaries and itself becoming a violator of rights. These problems suggest that politics will not “wither away,” as it does in many utopian schemes

111 where all problems are precluded by the application of harmonious principles (Nozick

1974, 330).

Finally, what is the relationship between Nozick’s meta-utopia and the minimal state?

Nozick writes that “[t]he framework for utopia that we have described is equivalent to the minimal state” (1974, 333). Indeed, Nozick thinks that while his argument for utopia

“starts (and stands) independently of the argument of Parts I and II [of Anarchy, State and

Utopia],” it nonetheless “converges to their result, the minimal state, from another direction” (1974, 333).54 Nozick then ends the chapter, and the book, with the following summation:

The minimal state treats us as inviolate individuals, who may not be used in

certain ways by others as means or tools or instruments or resources; it treats

us as persons having individual rights with the dignity this constitutes.

Treating us with respect by respecting our rights, it allows us, individually

or with whom we choose, to choose our life and to realize our ends and our

conception of ourselves, insofar as we can, aided by the voluntary

cooperation of other individuals possessing the same dignity. How dare any

state or group of individuals do more. Or less (1974, 334).

54 The notion that Nozick’s arguments in favor of utopia present an independent argument in favor of the minimal state is controversial, not only because many suggest that such a meta-utopia is not uniquely matched or analogous to a minimal state (a point that the next chapter develops), but also because Nozick may have to smuggle in some libertarian principles to his utopian argument to make it run correctly. See Hailwood (1996). 112

5: Conclusion

It should be clear that Nozick’s meta-utopia does indeed possess the two theoretically appealing features of an open society – it generates knowledge through the operation of a filtering device that consists of individuals choosing which communities let them best approximate their own conception of the best possible world, and it allows people the necessary freedom to to take up new ways of life when they seem preferable to their current ones. What remains, however, is to demonstrate in more detail the ways that

Nozick’s meta-utopia appeals to relevant actors. This is the task of the following two chapters.

113

Chapter Four: The Minimal State and the Meta-Utopia

If we are convinced that Nozick’s meta-utopia is appealing, then the next question is how to actually realize such a society in the real world. Nozick does take on this issue to some degree in Anarchy, but many questions remain. In particular, although Nozick argues that his meta-utopia is identical to the minimal state, many of Nozick’s interlocutors have found this claim less than persuasive. If we are similarly less than convinced, it seems likely that we need to consider the possibility that a more-than-minimal state will be necessary for the functioning of Nozick’s meta-utopia. First, some degree of regulation will likely be necessary to ensure that people have a real right of exit and founding, in addition to the enforcement of a ban on coercion that Nozick himself accounts for. And second, regardless of which particular institutions we think are required to enable rights of exit and founding, the question of how to fund those institutions will arise.

As a result, we are faced with a conundrum. Regulation and taxation may be necessary to support the meta-utopia, but according to Nozick, they amount to a form of theft, even , because they violate the rights of individuals over themselves and the things that they have justly acquired. Furthermore, this is not some mere idiosyncrasy on Nozick’s part; while Mill and Popper are open to forms of (liberal) social democracy, there is a general distrust of government intervention amongst recent proponents of the open 114 society like Gaus, Vallier, and Thrasher, though they tend not to take as extreme a stance as Nozick does. It is therefore worthwhile to examine the basis of Nozick’s argument against government interference, to see if there is perhaps some room to reconcile active government support of his meta-utopia with his libertarianism. If we can find room in

Nozick for regulation and taxation, we should be less hard pressed to do the same with the less extreme libertarianism or classical liberalism of someone like Gaus.

Unfortunately, as I argue in this chapter, the current debate concerning self-ownership libertarianism is unlikely to produce any such results, as it lacks a common ground capable of enabling productive debate.

First, I review some of the arguments as to why Nozick’s meta-utopia is likely to require a more than minimal state. In particular, I note that the operation of the meta-utopia requires education, information, physical places for associations to operate, and mobility between associations. In each case, for Nozick’s utopia to function, what is required is not simply formal rights of exit and founding, but actual ability. Enabling ability requires regulation and resources, and these are unlikely to be provided effectively by any actor other than the state. This then sets up a stark choice – if we accept Nozick’s libertarianism as he sees it, then we must forgo realizing his meta-utopia, as the meta- utopia requires illegitimate regulation and taxation to function. We can therefore either reject Nozick’s libertarianism, or attempt to find some space within it that Nozick himself does not notice for a more-than-minimal state.

115

To this end, in the second section I aim to provide a brief review of what Nozick’s form of “self-ownership” libertarianism entails. This requires engaging not only with Nozick’s own work, but also with the work of G.A. Cohen, who serves as the greatest critic of self- ownership libertarianism. I hope to show that the current debate over self-ownership libertarianism is problematic, at least for our present purposes, because it tends to jettison the core premise of that form of libertarianism, which is that no person should ever have to sacrifice for another person. This doctrine of the “separateness of persons” is what renders Nozick’s meta-utopia and its rights of exit and founding so appealing and makes it compatible with neoliberalism’s emphasis on individual responsibility. Thus, in pragmatic terms, going too far beyond a principle of self-ownership, even if only to have public ownership of natural resources as “left-libertarians” advocate for, would make

Nozick’s meta-utopia a less feasible option within the parameters of the present project.55

These practical problems with leaving behind self-ownership libertarianism lead us to the next chapter, where an alternative approach to squaring the Nozickian circle is pursued that critically examines the notion of sacrifice that rights are meant to protect individuals from.

55 We could, of course, look for a different locus of power than neoliberalism, and perhaps find a way to render a more collectivist approach more feasible – as mentioned in the Introduction, national sentiment comes to mind as a practically powerful motivation for self-sacrifice – but this would take us beyond the contours of the present project, and present its own set of worrisome problems. Nationalist mobilization has a proven track record of disastrous consequences in the 20th century, and history may well be repeating itself to some degree with the present wave of populist nationalism in the West. 116

1: Beyond the Minimal State

As noted above, Nozick himself describes certain problems with his vision of a meta- utopia. However, Nozick discusses those problems in a relatively offhand and ad hoc fashion. We can find further discussions of problems with Nozick’s utopia in the secondary literature, but here again there is not a systemic approach to realizing Nozick’s utopia. I hope to provide such an approach here. In particular, I propose that we take the perspective of a citizen of a Nozickian utopia and consider what they would require in order to make effective use of the opportunities that they are afforded within such a society to increase the value and meaning of their lives.

1.1: Education

The beginning point for any citizen in Nozick’s state will be their education, here broadly construed as their character formation as a youth. Nozick only mentions education a few times in Anarchy, and typically only in passing.56 But it seems absolutely integral to the successful operation of the meta-utopia that individuals receive at least some sort of education in how to successfully navigate the world of associations. Wolff notes this problem when he writes:

56 He does so once to note the difference between Friedman’s school vouchers and his own protection vouchers (one cannot choose who supplies the latter service, as it is the minimal state) (1974, 27n*), twice in his critique of Rawls’ Difference Principle (1974, 167, 199-201), once in discussing the basis of self- esteem and attending a prestigious college (1974, 242), once when questioning whether one utopia can be best for everyone (1974, 311), once when discussing illegitimate interference with freedom in utopia (1974, 326), and once in investigating the notion of owing a debt to one’s community (1974, 330). 117

Nozick realizes that there are problems with the framework. Children

present one such. At what age, for example, should they be able to leave?

Do they have a right to be informed in a balanced way about alternative

ways of life? If a society shares the belief that to discuss the theory of

evolution is a sin, may they indoctrinate this belief in their children? If so,

how can their children make free choices? If not, how is this to be regulated

(1991, 135)?

One solution to this problem is to simply let parents do as they will vis-à-vis their children’s education. This would avoid any need for public education, and the necessary to support it. But this approach seems problematic, especially from a

Nozickean perspective. In particular, the appeal of Nozick’s utopia is premised upon the ability of people to achieve the closest approximation of the best possible world. But if individuals lack the necessary education in autonomy that would make such movement between associations possible, then there is no reason to think that a right of exit will enable people to reach their own best possible world. In other words, the only people who will find Nozick’s meta-utopia appealing in the context of an uneducated public are those who believe that the association they happen to have been born into is the best possible world. This will appeal to some people, of course, but probably not enough to make the meta-utopia broadly appealing. Furthermore, it is hard to see how the filtering device in

Nozick’s meta-utopia will operate if people lack the education to render movement between associations possible. At a minimum, individuals need to be able to perform

118 basic cost-benefit analysis regarding staying in their own association versus moving to another. In short, it is hard to see how Nozick’s meta-utopia can function well without some kind of mandatory education, and any mandatory education scheme will need some kind of public funding, if only to ensure compliance from parents, but likely also to actually provide education itself in the case that parents are unwilling or unable to do so.

1.2: Information

Education gives individuals a certain character and a certain set of capabilities, but these attributes are not helpful without fuel (or ammunition, depending on our predilections) to drive them. That is, character and capabilities need something to be used with, and it is here that information or knowledge enters the picture.57

Bader acknowledges the problem of information explicitly, with particular attention to the question of community success. It is one thing to know that a community exists, and how it operates, but whether or not a community is successful is harder to know. He writes:

Given that a utopian association is understood not as the best possible

association but the best possible association believed to be stable, there

seems to be room for epistemic mistakes (that do not rely on value

57 This issue is mentioned as a “mine left undefused,” but not developed further, by Lacey (2001, 69). 119

judgments), if someone judges an association not be the best possible stable

association even though there is another association that that person judges

to be better but mistakenly considers to be unstable, then one ends up with

a sub-optimal equilibrium, that is, a stable yet non-utopian situation (Bader

2011, 280).

This issue is exacerbated by another problem that Bader notes, namely the issue of coordination. Bader argues that “[a] sub-optimal equilibrium can arise if we have a situation that is stable, not because no improvements are possible, but because coordination problems prevent people from moving to an intrinsically better stable situation” (Bader 2011, 280). That is, it might be the case that a community would be stable if both you and I joined it, but if it is difficult for us to coordinate, then it may be that we both mistakenly think the community is hopelessly unstable.

We can turn to Mill in On Liberty for an initial solution to this problem. He writes that

“[w]hat the State can usefully do, is to make itself a central depository, and active circulator and diffuser, of the experience resulting from many trials. Its business is to enable each experimentalist to benefit by the experiments of others” (2002, 306). One can imagine something like the CIA World Factbook, except regarding communities within the state.58

If we are concerned that such information is presented in too dry a fashion, such a repository could offer more videos or interactive approaches to its information. The point

58 https://www.cia.gov/library/publications/the-world-factbook/. 120 of such a repository would be to make as clear as possible not simply facts about a community, but what it is like to inhabit such a place, as that is the real basis of the decision whether or not to move there. New communities that are created would be added to the repository, and failed communities could remain there as they continue to be useful sources of information for other communities even after they have ceased to exist. Such a repository would not, however, be able to operate for free. Again, it seems as though some kind of taxation to support the creation and maintenance of the repository will be necessary.

1.3: Place

We have so far established the importance of education and knowledge, but knowledge of what? The obvious answer is different associations and their ways of life. But these associations need places in which to exist. In particular, a right to found new communities will be merely formal if there is no physical space in which such new communities can come to exist. A merely formal right of founding, in turn, will render

Nozick’s meta-utopia less appealing and the filter device less effective, as the success of a community will no longer simply depend upon persuading others to join in. Even if we are considering non-total associations like clubs, a meeting space will be required. And the requirements only increase if we are considering more total communities like . How can we guarantee the availability of such space? Some sort of basic income, or more specifically “space vouchers,” could serve as a way to enable access to space while still allowing the operation of market forces to determine a fair cost for access. But either option would require some kind of taxation revenue to support it. 121

In the United States, at least, there is the possibility of providing places for new communities to come into existence on federally owned land. Even if we exclude those lands given over to conservation efforts, this leaves the 248.3 million acres that are overseen by the Bureau of Land Management, and which are currently used for

“sustained yields of the multiple uses, including recreation, grazing, timber, watershed, wildlife and fish habitat, and conservation” (Vincent et al. 2017, 4).59 Given that the number of people who actually want to try to create new communities is likely to be a small percentage of the overall population, some of this land could be turned over to such usage while still giving those who currently rely on access to public lands, like ranchers, the needed resources. But again, maintaining public lands is not free, and ensuring access for all who are interested in exercising their right of founding will require subsidization.

1.4: Mobility

Once we know of a community we might join, or have conceived of a community that we might like to create, we run into the problem of how to get where we are going, that is, the problem of mobility. If individuals cannot actually move from association to association, then the rights of exit and founding are merely formal.

59 https://fas.org/sgp/crs/misc/R42346.pdf 122

Wolff raises one issue relating to mobility, namely the possibility of some choices being irreversible and thereby preventing a return to a prior way of life. He writes that “[i]f the members of our little self-sufficient rural communist community decide to sell up to try their hands as corporate raiders they may find that when they decide to return to their former style of life, land prices – owing, say, to the explosion of the ‘Gold Village’ style of utopia – are beyond their reach” (1991, 135).60 Over time, “we may find the framework regulated by the law of the survival of the economically most fit and so we would expect to see a development not of diversity but of homogeneity” (1991, 135). In other words, if the decision to join a more economically fit community tends to be irreversible, but the decision to join a less economically fit community is not, then over time we might expect the more economically fit communities to grow and the less economically fit communities to shrink. However, to some degree (indeed a very large degree), this concern is ameliorated by the public provision of places for community experimentation.

Bader notes one form that undesirable immobility can take—the various transaction costs associated with movement. He writes, “[w]hile imagining worlds involves minimal costs, creating and switching associations can be highly costly” (2011, 262).61 The problem

60 Of course, this implies that old communists make poor corporate raiders, or they would be able to afford increased land prices. 61 Note that this is true even if a place is provided where a new community can be created; the work of creation still remains to be done in such a situation. One must still attract followers and perform the physical work required to build the infrastructure necessary for community life. Perhaps the very basics might already exist (shelter and access to water, for example), but the maintenance of the community will at least have to be performed by the community itself even if that is the case. 123 with transaction costs is that they create the possibility of multiple equilibria within society regarding which communities people are members of or try to create. And “In the presence of transaction costs, stability per se does not suffice for the utopian property”

(2011, 263). This is because:

When in a sub-optimal equilibrium, the reason why people do not switch

associations is not because they consider the association they are in to be

the best possible association. Instead, they do not switch because the process

of switching to an association they consider to be better would be too costly

to make it worthwhile. The stability that obtains in such a situation is simply

the result of transaction costs and the result of utopia, that is, the absence of

possible improvements (2011, 263).

We also can use this analysis as a response to Kukathas’ concern that “the obvious question … is how much mobility is desirable[.] If the state is to determine how easy exit is to be, how easy should it make it” (2011, 299)? The answer would seem to be simply that exit should be as easy as it would be without transaction costs. This cuts off

Kukathas’ worry that the determination of how easy it is to exit a community cannot help but be resolved in an ad hoc way.

The reduction of transaction costs would seem to be relatively easy to solve, at least if such costs can be determined with any accuracy. The physical costs of moving are likely 124 the easiest to calculate, and could be offset by something resembling a “mobility subsidy.” Just as private enterprises will sometimes offer to cover a new employee’s moving expenses, so too could the state offer funds to assist individuals or groups who want to move from one community to another. But it is hard to imagine a solution to transaction costs that is not itself costly – again, there is a need for taxation.

The general point of this section is not to argue in favor of any particular institutions, but merely to show that some institutions above and beyond the minimal state would seem to be necessary for Nozick’s meta-utopia to have the appealing features that he argues in favor of. The central issue is that the appeal of the meta-utopia depends not on formal rights of exit and founding, but the ability to actually act on those rights. Merely formal rights render the good life practically out of reach and reduce the ability of the filter device to generate knowledge of new possible worlds.

2: Self-Ownership and its Discontents

So far, all I have attempted to show is that Nozick’s meta-utopia requires a more-than- minimal state in order to operate effectively. But even if I have been successful, this does not mean that a more-than-minimal state is actually justified. It may just be the case that

Nozick’s utopia is an appealing but illegitimate society. And, indeed, if we accept

Nozick’s libertarianism on its face, the meta-utopia will appear to be out of reach. It is therefore necessary to examine whether there is in fact some hidden room within

Nozick’s libertarianism for going beyond the minimal state for the sake of his meta- utopia. In this section, therefore, I aim to investigate Nozick’s self-ownership 125 libertarianism, as well as common criticisms of it. My argument is that this debate, as it is currently constituted, does not share a common ground in the concern for the separateness of persons, which is the foundation of self-ownership libertarianism and an important source of its practical appeal. But first, we need to understand what precisely self-ownership is. For this purpose, I turn to G. A. Cohen’s analysis of Nozick’s libertarianism.

2.1: Nozick and Self-Ownership

When discussing Nozick as a self-ownership libertarian, we are immediately met with a problem: Nozick himself does not use the term self-ownership to describe himself or his theory in Anarchy, State and Utopia. It is through the work of later theorists, especially

G.A. Cohen, that the term self-ownership has come to describe Nozick’s libertarianism.

But this is not to say that Cohen has missed anything about Nozick; the notion of self- ownership libertarianism was developed precisely to describe Nozick’s approach, and is well founded within the text.

Nozick begins Anarchy, State and Utopia with a simple statement: “Individuals have rights, and there are things no person or group may do to them (without violating their rights)” (1974, ix). From this premise, Nozick argues that “a minimal state, limited to the narrow functions of protection against force, theft, fraud, and so on, is justified,” while

“any more extensive state will violate person’s rights not to be forced to do certain things, and is unjustified” (1974, ix). In making this argument, Nozick proceeds through a great 126 many topics, often in quite short order. I will not here review the entirety of his argument, as many such reviews exist already.62 What we are particularly interested in here, however, is his commentary on self-ownership, as Cohen calls it.

Self-ownership, according to Cohen, “says that each person is the morally rightful owner of his own person and powers, and, consequently, that each is free (morally speaking) to use those powers as he wishes, provided that he does not deploy them aggressively against others” (Cohen 1995, 67). This notion comes from several places in Anarchy, but largely revolves around Nozick’s rather strident comments on the nature of slavery. It is worth investigating these portions of Anarchy, as their controversial nature will serve a role in my own critique of the self-ownership debate as a whole.

Cohen uses two portions of Anarchy as the basis for his argument that Nozick is a self- ownership libertarian first and foremost. The first of these textual sources comes in

Nozick’s commentary on distributive justice, where he critiques end-state or “patterned” theories of justice like that of utilitarians or Rawls, in favor of Nozick’s own preferred approach of “historical” justice, as expressed via his entitlement principles of just acquisition and transfer (ASU 149-231). The particular passage Cohen draws our attention is part of this critique of patterned theories of justice. Nozick writes that:

62 See, e.g., Bader 2010, Lacey 2001, Wright 1994, Wolff 1991. 127

Whether it is done through taxation on wages or on wages over a certain

amount, or through seizures of profits, or through there being a big social

pot so that it’s not clear what’s coming from where and what’s going where,

patterned principles of distributive justice involve appropriating the actions

of other persons. Seizing the results of someone’s labor is equivalent to

seizing hours from him and directing him to carry on various activities. If

people force you to do certain work, or unrewarded work, for a certain

period of time, they decide what you are to do and what purposes your work

is to serve apart from your decisions. This process whereby they take this

decision from you makes them part-owner of you; it gives them a property

right in you. Just as having such partial control and power of decision, by

right, over an animal or inanimate object would be to have a property right

in it.

End-state and most patterned principles of distributive justice institute

(partial) ownership by others of people and their actions and labor. These

principles involve a shift from the classical liberals’ notion of self-

ownership to a notion of (partial) property rights in other people (ASU 172).

The implication, of course, is that redistributive justice as we usually think of it, that is, as coercively taking some resources from the well off and giving them to the worse off, is a form of slavery. Nozick makes this notion even clearer in later portions of Anarchy.

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In Anarchy, Nozick considers whether and how a “more-than-minimal” state might be derived without violating anyone’s rights. This section is replete with the language of self-ownership. To begin with, Nozick imagines that we might get to a more-than- minimal state through a process of selling shares in ourselves to others, presumably to raise funds for some reason or another (ASU 282). This progresses through various steps until stock ownership in others is both intensive (people sell a great many of their rights to others) and dispersed (everybody owns a bit of everybody, more or less) (ASU 282-

85). The final outcome is a sort of universal corporation, which people can either gain membership in by selling rights in themselves or leave for some other territory, perhaps on another planet (ASU 289). In his own words, Nozick suggests that “we have arrived at a democratic state,” democratic insofar as it consists of “ownership of the people, by the people, and for the people” (ASU 290). We have, then, another description of self- ownership, and with it a rather unique vision of what a legitimate democracy must entail

– the state can only legitimately come to have a right to ownership of a person if that person explicitly contracts away that right to the state.

Nozick, we gather, is somewhat dubious about the that such a rise of a legitimate democratic state would ever come to pass. Thus, he also tells a different story, called the “Tale of the Slave,” in which a slave moves from being “completely at the mercy of his brutal master’s whims” to a situation in which the wider population deigns to “throw your [the slave’s] vote in with theirs” when they make decisions, in light of the slave’s perspicacity (ASU 290-92). The point, as Nozick puts it, is to consider “which

129 transition from case 1 [brutal individual slavery] to case 9 [having one’s vote counted] made it no longer the tale of a slave” (ASU 292)? The inference is obvious – it is the tale of a slave the whole way through, even though in the end the slave can vote. The point for our purposes, however, is that we are again seeing democracy through Nozick’s eyes as a matter of who owns rights in whom, and how those rights came to be owned.

We have, then, the textual bases for Cohen’s description of Nozick as a self-ownership libertarian. The next section aims to show what sort of discussion this view has engendered.

2.2: The Debate Over Self-Ownership

Logically, there are three kinds of response to Nozick’s notion of self-ownership: (1) acceptance, (2) modification, and (3) full rejection. The first position is taken up by full- bore libertarians like Eric Mack. The second position characterizes the work of so called

“left-libertarians,” who modify the notion of just acquisition while still maintaining some form of self-ownership. The third position is taken up by Cohen himself, who sees the left-libertarian approach as appealing but unworkable. My own aim in briefly looking through these three positions is to note the lack of overlap between their fundamental assumptions, which will form the basis of my own critique of this literature in the next section.

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The left-libertarian approach consists of the notion “that agents are full self-owners and that natural resources are owned in some egalitarian manner” (Vallentyne 2000, 1). In other words, Nozick’s usual notion of just acquisition (his “”), in which we must simply either leave “as much and as good” of a resource as would have been available in the or compensate an individual for their loss, no longer holds.

Instead, we should utilize a notion of joint-ownership over or equal shares in natural resources, in which every individual has some sort of ownership right over some egalitarian-distributed amount of natural resources, and the use of such resources therefore requires the payment of some kind of tax to be used in compensating those who did not actually exploit their ownership over said resource (Vallentyne 2000, 5-10). The funds from these taxes can then be distributed in an egalitarian fashion, though what precisely this means will differ from thinker to thinker (Vallentyne 2000, 10-11).

Although it is initially appealing to suggest that we can jettison Nozick’s particular idea of just acquisition in favor of joint ownership over the natural world, and thereby preserve self-ownership, Cohen provides a fairly convincing argument that do so is to render self-ownership a merely formal theory, with no particular substantive effect in the world; we can say that we affirm self-ownership, but it will not mean much of anything, certainly not by the standards of Nozick or other self-ownership libertarians. Take a situation where two people, Able and Infirm, inhabit a society. Their names reflect their personal endowments, and they jointly own the natural resources of their society. Either the natural resources are so poor that neither or only Able can survive, or there will be some surplus production that Able produces and Able and Infirm will bargain over its

131 distribution. In the case of non-abundance, self-ownership does not perform any work, because there are no surplus resources. In the case of abundance, self-ownership also does no work, because joint ownership encourages bargaining at the point of resources acquisition and therefore distribution occurs before property is acquired.

Some left-libertarians, in particular Michael Otsuka, have attempted to reply to Cohen’s charge. Otsuka asks us to consider a different version of the story of Able and Unable, in which Able is not only able-minded and bodied but also an ascetic who has no wish but to survive and Unable is so disabled as to be unable to perform any productive labor whatsoever. The only way for acquisition of natural resources to produce equal access to welfare in such a situation is for Able to work for Unable, as otherwise Unable has no means of producing welfare from their environment. To ensure Able would work for

Unable, Unable would have to be granted enough of the island that Able could not survive on their own share and would need to rely on Unable to provide access to the resources necessary to survival. This situation seems problematic, Otsuka argues, and would be prevented by a right of self-ownership. In this extreme case, that right would not have merely formal outcomes; it would prevent the de facto enslavement of Able to

Unable, though it might thereby also lead directly to Unable’s total lack of welfare and even death (Otsuka 2000, 160).63

63 Otsuka further develops his reasoning vis-à-vis Nozick in his updated version of this essay (2003), but drops his engagement with Cohen’s critique of left-libertarianism, which is more interesting for our purposes. 132

Does this answer Cohen’s real concern? Otsaku himself seems unsure, as he notes that either outcome seems a “pyrrhic victory” for one side or the other. Indeed, Otsaku is more concerned with “ordinary circumstances,” in which he says the seeming opposition between self-ownership and equality can be “virtually” eliminated because welfare for each individual is, in fact, typically valuable and therefore each person’s share of the natural world can at least provide them with a minimal level of welfare, unlike in the case of Able and Unable (Otsaku 2000, 161-62). The problem is that Cohen acknowledges this possibility, noting that non-coerced is possible when resources are sufficiently abundant, though less so than in a Marxist utopia (Cohen 1995, 136). But

Cohen thinks such a situation will only hold when “citizens disbelieve in self-ownership and willingly follow a law (or practice) which reflects that disbelief” (Cohen 1995, 129).

This is because in a situation of reasonable but not great abundance, conflicts of interests will still arise, but will “generate a need for coercion only when at least one party to the conflict is unwilling to either modify what he wants or to forebear from pursuing it, unless he is forced to do so” (Cohen 1995, 128). In other words, the population cannot believe in self-ownership and also come to the necessary unforced, egalitarian resolutions of conflicts of interest. It seems to me that Otsuka is stuck between accepting the mere formality of self-ownership, because it can be negotiated around, or presuming precisely the level of resources that Cohen excludes as utopian in order to avoid this outcome.

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There are other responses to self-ownership that are not couched in left-libertarians’ concern with just acquisitions, though these alternative approaches are united only in their desire to see some limitation placed on self-ownership and do not, therefore, unite into anything like a coherent approach in the way left-libertarianism does. Kymlicka, for example, argues that self-determination is more fundamental than self-ownership, and that some forms of redistribution are compatible with formal self-ownership anyways

(though as Cohen notes, formal self-ownership does not get us very far at all) (Kymlicka

2000 319). Arenson notes that the “no harm to others” portion of self-ownership would seem to preclude a great many forms of acquisition of property that Nozick supports

(Arenson 2000, 327-340). Christman distinguishes between “control” of property and

“benefit” from property, with the former seeming more important than the latter but the latter being the aspect of property that supports taxation for redistribution (Christman

2000, 346-47). And Fried suggests that self-ownership is too obscure a term to generate strong conclusions, while also suggesting that left-libertarianism in its more convincing forms is so close to liberal egalitarianism as to be indistinguishable (Fried 2004, 70).64

The general point of all these approaches is to critique self-ownership more directly, a la

Cohen, rather than attempting to rescue it like left-libertarians do.

Perhaps what is more important is to note what Cohen and left-libertarians share, which is a strong egalitarian concern. Egalitarianism lies at the root of both left-libertarians’

64 This initial article led to a response by Valentyne, Steiner, and Otsuka (2005) and a subsequent response by Fried (2005). 134 attempts to argue in favor of joint ownership over natural resources, and Cohen’s rejection of that solution as impossible or inadequate to the demands of egalitarianism.

Those who find Nozick more convincing, however, simply do not seem to care much about egalitarianism. Instead, they have rendered more sophisticated versions of self- ownership theory that do more to improve upon Nozick and respond to the more technical points made by his left-leaning critics, rather than responding to the core egalitarian concern that motivates those critics in the first place. The concern of theorists like Eric Mack is not whether or how libertarianism can accommodate egalitarian (or humanitarian) concerns, but whether or not libertarianism is true, and if it is true, what the implications of its essential are (Mack 2002a; Mack 2002b). So, for example, in

Mack’s two-part response to Cohen, he is concerned not with whether the self-ownership thesis is inegalitarian; indeed, he actually actively defends the “anti-egalitarian” implications of the self-ownership thesis (Mack 2002b).

2.3: Moving Forward

We have thus far described and delineated the current conversation regarding the right to self-ownership in libertarianism. This discussion is both illuminating and important, but we have not really moved much past the initial disagreement between Nozick and Cohen at the level of the our core concerns – we can choose to either privilege the libertarian impulse of Nozick or the egalitarian impulse of Cohen. The compromise of left- libertarianism seems either unpersuasive or too far towards liberal egalitarianism to convince many others beyond avowed left-libertarians themselves. There seems to be 135 little common ground, and no principled way of getting closer to some kind of consensus position.

One particular problem is that critics of Nozick and other self-ownership libertarians tend not to capture the libertarian arguments regarding the basis of self-ownership.65 Cohen explicitly treats self-ownership as the fundamental foundation of Nozick’s argument.

Cohen suggests that “I am denying that [Nozick] thinks that freedom comes first and that people qualify as self-owners because lack of self-ownership means lack of freedom. For

Nozick gives us no independent purchase on freedom which would enable us to derive self-ownership from it” (Cohen 1995, 67). He goes on: “Nozick’s real view is that the scope of nature of the freedom that we should enjoy is a function of our self-ownership: self-ownership, not freedom, is the point of departure for generating the rights over our bodies and our powers on which he insists” (Cohen 1995, 67-68). It is important to understand this aspect of Cohen because it is from this premise that Cohen makes his critique of Nozick, i.e., that “[i]t is because self-ownership is basic for Nozick, and freedom (independently conceived) is not, that he does not regard the apparent unfreedom of the propertyless proletarian as a counter-example to his view that freedom prevails in a capitalist society” (Cohen 1995, 68). This approach is a reasonable reading of Nozick, but it is not, perhaps, the most helpful approach, precisely because it immediately throws us into a fundamental disagreement regarding the kind of example

65 Kymlicka is something of an exception here, though he does not go into much detail. He at least does not dismiss as mere rhetoric Nozick’s invocations of autonomy and freedom as the basis of his theory, rather than self-ownership (Kymlicka 2000, 310). 136

Cohen has given, that of the person in need of (and perhaps deserving in some obligatory way of) aid from others who are disinclined to give it as a matter of private action. That is to say, if we begin from a strong right of self-ownership as defined by someone like

Nozick, then there is no common ground between self-ownership libertarians and their critics.

A lack of common ground is not in and of itself problematic. On some subjects, reasonable, intelligent, and well-informed people simply do lack such common ground.

However, if that is the case here, then Nozick’s meta-utopia is likely to fall victim to either the Scylla of lacking the necessary government support to function effectively or the Charybdis of unfeasibility within the constraints of our current society. In the former case, we can stick with a strong right of self-ownership as it is articulated by Nozick, but we will then be unable to support the kind of government programs that are likely to be necessary for the meta-utopia to function. In the latter case, we can give up a strong right of self-ownership in favor of a more collectivist approach, but this will come at the expense of the feasibility of realizing the meta-utopia in a consumer society by piggy- backing on the power of neoliberalism. Collective ownership is difficult to square with either neoliberalism or consumerism, at least as they are currently conceived. It is certainly not impossible to imagine transitioning from a consumer society to a more collectivist society, especially in the present political moment, but it does seem relatively unlikely when compared with the approach premised on neoliberalism that I have espoused here. Thus, the current conversation over self-ownership libertarianism is not

137 only unlikely to make much headway beyond sharpening the substance of arguments with incompatible premises. The discussion as it stands is also unlikely to illuminate a way to provide the necessary resources to actually found a Nozickian meta-utopia, either due to a lack of government support or a lack of feasibility within the constraints of a consumer society.

3: Conclusion

For our purposes, another approach to self-ownership libertarianism, one that takes more seriously Nozick’s “rhetoric of freedom,” may be more appealing (Cohen 1995, 67).

Regardless of what Nozick himself believed, he left plenty of room for such a reading in

Anarchy, and this approach is made more persuasive when we also engage with Nozick’s later work in Philosophical Explanations and The Examined Life. In particular, if we take self-ownership not as a premise but as a derivative conclusion, an approach that Nozick in fact provides the textual resources for, it raises the possibility of some overlapping concern at the basis of both libertarianism and its critics. That concern could undergird a conversation more productive than the current status quo of fundamental disagreement. It might also allow us to navigate the waters between government support for the meta- utopia and feasibility within a consumer society. Articulating this argument is the aim of the next chapter.

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Chapter Five: The More-Than-Minimal State

The previous chapter suggested that the current conversation regarding self-ownership libertarianism forces us into a dilemma between either a more-than-minimal state that can support the meta-utopia or the self-ownership libertarianism that renders the meta-utopia a feasible option. I argue in this chapter that by investigating a different area of Nozick’s libertarianism, namely the basis upon which he founds a right of self-ownership, we can resolve this dilemma. We will find that Nozick provides only a little guidance in Anarchy itself, but seems to suggest that the basis for rights has something to do with individuals as seekers of value. More is necessary to understand how this basis for rights relates to the substance of rights that Nozick describes. That is, the foundation of rights has implications for what rights actually entail, but there is not enough information in

Anarchy to draw out such implications.

However, if we look beyond Anarchy to the rest of Nozick’s corpus, we can find relevant commentary on the normative basis of rights. Specifically, Nozick posits that individuals have an interest in leading a good life that requires respecting their autonomy and protecting that autonomy through a right to self-ownership. However, once we have established that leading a good life lies at the foundation of rights, it becomes possible to argue that there is a place for government action that aims precisely at facilitating a good 139 life. This, in turn, is congruent with support for Nozick’s meta-utopia. While this argument may not convince ardent libertarians, it at least engages with self-ownership libertarianism on its own terms, at a fundamental level of analysis, and provides a more feasible basis for funding a more-than-minimal state than left-libertarians or Cohen do.

Therefore, first, I examine the normative basis of a right to self-ownership – what is it about persons that means we should assign them such a right? Perhaps in performing such an investigation, we can uncover some common ground regarding self-ownership.

Nozick provides suggestive, although often-overlooked, comments on this question in

Anarchy that he further develops in his later works. Those comments all point to the ability to lead a good life as playing a fundamental role in justifying a strong right of self- ownership.

The second section argues that Nozick’s particular conceptualization of leading a good life opens him up to the argument that not all aspects of a person’s life contribute to the things that make a life worth living (meaning and value in particular). My aim is not to show, as others have argued, that there is something unappealing about self-ownership itself, but instead that respect for people’s ability to lead good lives affects our concept of sacrifice and therefore of what kind of interference actually violates rights. Some things in life do not reach a de minimis standard of actually impacting our ability to lead a good life, once that concept is more carefully considered. I also discuss various concerns regarding the actual implementation of such a standard; it is all well and good in principle

140 to argue that not all costs are sacrifices, but quite another to actually turn this idea into some practical institution.

1: The Basis of a Right to Self-Ownership

One question we might immediately have when reading Nozick is where the powerful right to self-ownership that he identifies comes from, and why human beings specifically possess the right while other entities (perhaps all non-humans, but certainly things like rocks) do not. This question is important because the source of rights will determine the content of rights, that is, different sources produce different substantive rights. For example, if the source of rights is God, then rights consist of whatever God says they are.

The content of rights matters a great deal, because that content determines what sort of state, if any, is justifiable and legitimate. In particular, we might wonder whether any kind of coercive social justice, by which I mean mandatory state redistribution of power from the relatively powerful to the relatively powerless, is justifiable. Nozick that the answer is no, and his reason for this answer is his identification of the rights that people have. The question, then, is whether the source of rights that Nozick identifies supports his argument in favor of a minimal state.

1.1: Nozick on the Source of Rights

Initially, in Anarchy, Nozick identifies neither the source nor the content of rights in his argument. Both are made clear later. As far as content is concerned, Nozick argues in

141 favor of a general right against physical non-aggression. By this, he means any physical coercion that is not a response to some prior physical coercion, directed against one’s person or one’s justly acquired property (Nozick 1974, 10). In other words, the use of physical force is never justified unless it is response to, proportionate to, and aimed at rectifying some prior use of force. This general right against aggression is, according to

Nozick, a product of human beings’ “separate existences” (Nozick 1974, 33). My conscious experience is distinct from your conscious experience, and there is no way of fusing them together in order to forge some sort of superorganism to which we both have experiential access. Because of this separateness of persons, there is no collective good beyond that experienced by an individual that can compensate that individual for their sacrifices. There is no such thing as “moral balancing,” unlike in utilitarianism.

It is one thing to note the separateness of persons as an empirical fact. It is another to suggest that this fact in some way produces a right against aggression, as Nozick argues it does. His comments on this connection between separateness and rights are brief but helpful. There are, he suggests, five attributes of persons related to their separateness that are meant to invest them with rights: (1) sentience and self-consciousness; (2) rationality;

(3) ; (4) moral agency; and (5) having a soul (Nozick 1974, 48).66 However, excluding the possession of a soul, Nozick argues that none of these attributes are individually sufficient to produce a right against aggression. Some further attribute of

66 Of course, I earlier suggested we should forgo a rationality requirement in assigning a right to autonomy. Perhaps it is more accurate to suggest that we should simply assume that people are being rational, at least insofar as we are deciding whether they are worthy of having their autonomy respected as a person and citizen. Note that this is perfectly compatible with questioning people’s rationality in other contexts, where we are not considering coercive interventions. 142 persons, M, must be identified that can warrant, either individually or jointly, assigning such a right to persons. Nozick identifies M as “the ability to regulate and guide its life in accordance with some overall conception it chooses to accept” (Nozick 1974, 49).67 In conjunction with rationality, free will, and moral agency, Nozick argues that the ability to have an overall conception of one’s life, and the ability to compare this conception with how one’s life is actually going and employ it in making decisions, justifies assigning a right against aggression to persons. Why is this the case?

One argument in favor of protecting persons via a right against aggression might be purely pragmatic; we can learn things from observing others’ lives that can assist us in living our own life better. But Nozick thinks that this argument is too weak to support such a right in the face of the many good, pragmatic reasons we might have to interfere with an individual. Instead, Nozick suggests that the ability to have and employ an overall conception of one’s life is worth protecting because it is what allows a person to have a meaningful life. He suggests that a “person’s shaping his life in accordance with some overall plan is his way of giving meaning to his life; only a being with the capacity to so shape his life can have or strive for a meaningful life” (Nozick 1974, 50). This, he thinks, is a more compelling basis for assigning a right against aggression to human beings.

67 Larmore makes a persuasive argument that this sort of “life plan” approach misses the important role of serendipity in making a life valuable (1999). Nozick would seem to be utilizing a life plan approach, given his use of terms like “long-term planning,” “regulate and guide,” and “goals.” I, however, do not emphasize this component of Nozick’s argument, nor do I think his argument in favor of a right against aggression, and therefore his libertarianism, relies upon it. 143

Unfortunately for his readers, Nozick has little else to say on how a meaningful life ultimately justifies the assignation of rights. He leaves us with a long list of questions that would need to be answered by a more complete theory and suggests that he “hope[s] to grapple with these and related issues on another occasion” (Nozick 1974, 51). And, indeed, Nozick finds such occasion in his later work.

1.2: The Later Nozick

Nozick considers the basis of rights in two of his later works, Philosophical Explanations and The Examined Life. In particular, in Philosophical Explanations we find an extended discussion of rights and their relation to value, as well as the relationship of value and meaning.68 These comments are given something of a further gloss in The Examined Life, though Nozick’s aim in there is to appeal to a public audience rather than one of professional and so is of less analytic rigor.69 I will therefore focus largely on Philosophical Explanations, with a few references to The Examined Life interspersed throughout.

68 This connection is noted in passing by Wolff (1991, 33) and Lacey (2001, 26). 69 Furthermore, on the topic of value and meaning, The Examined Life largely summarizes Philosophical Explanations in a more accessible fashion. 144

In Philosophical Explanations, we find an admittedly short section devoted entirely to the issue of rights (Nozick 1981, 498-504). One important thing to note is that Nozick comments directly on Anarchy in a footnote, where he writes:

In Anarchy, State and Utopia, I presented a based upon

a certain view of the content of rights but did not (as I said there) present

any moral foundations for that view. One might attempt to provide such a

foundation either by working back from the view, step by step, or by starting

at the very foundations of moral philosophy and working forward. If this

latter course, pursued without too much glancing ahead, does succeed in

linking up with the specified rights, then it will provide them with

independent support. There also is the risk, however, that this forward

motion from the foundations will lead to a completely different view, as the

construction of a transcontinental railroad starting from both coasts could

fail to link up, instead leading to two full railroad lines. We do not pursue

the construction here extensively enough in the direction of political

philosophy to be able to see if there are two lines or one (Nozick 1981, 499).

This passage is, I think, extremely revealing. First of all, Nozick suggests that he is not, in fact, attempting to provide moral foundations for his view of rights in Anarchy. It seems more likely that he means he did not provide the kind of well worked out account

145 of ethics that he does over the course of hundreds of pages in Philosophical

Explanations. More importantly, it suggests that Nozick sees himself as providing the moral foundation of rights in Philosophical Explanations, though he does not connect up this account of rights with a wider political philosophy. Indeed, he does not provide a particular definition of rights in Philosophical Explanations at all, though he makes some suggestive comments, as we shall see.

After some comments regarding the nature of a right and the distinction between rights and duties, which we can safely pass over for present purposes, Nozick provides the following relevant commentary:

One view would be the following. It is important and valuable that a person

have a range of autonomy, a range or domain of action where he may choose

as he wishes without outside forcing. Recognizing and respecting such a

domain of autonomy is a response to the person as a value-seeking self so

we ought to recognize such a domain. This point does not fix the extent of

or content of the domain. It is important that various people recognize the

same domain, though. If I will not force someone about one choice but will

about another, while you will not force about the other but will about the

first, then although we each respect some domain or other of autonomy,

there is not one domain that we both respect. So that person has no domain

of autonomy within which he is without forcing or threats of

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force by anyone. Part of responding to another as a value-seeking self is to

coordinate our specification of the respected domain with others, so that the

person does have a generally recognized domain of autonomy, and also to

publicly avow our respect for this domain, so that he knows he is

autonomous within it and can count on that (Nozick 1981, 500).

We here come across a different notion than that which undergirds rights in Anarchy – we have moved from meaning to value. The nature of value takes up much of

Philosophical Explanations. Nozick’s general notion is that value consists of “organic unity,” or the more or less cohesive bringing together of more or less diverse parts into a whole (Nozick 1981, 415). This, then, is an objective notion of value, though it is obviously also admitting of supervenience – many different things can achieve value in different ways, though all through showing some degree of organic unity.70

Of particular interest to us are four arguments of Nozick regarding value. The first has to do with the relationship of ethics to value, where Nozick argues that ethical behavior increases the value of a person and their life. This is not, of course, a matter of the beliefs of the person in question, but of the objective value of the life in question: “The immoral life is a less valuable life than the moral one, the immoral person is a less valuable being than the moral one” (Nozick 1981, 409). In short, “it is better and lovelier to be moral”

(Nozick 1981, 410). What Nozick does not do is explicitly show us why this should be

70 Lest we find it too idiosyncratic that Nozick employs an objective definition of value, note that Mack does so as well, though not to the same ends of showing the connection between immorality and disvalue (Mack 1983). 147 the case, given that we are here defining value as organic unity. The best we can do is infer that it has to do with the internal irrationality of immorality, in Kantian terms of being unable to universalize one’s immoral behavior toward others, and the subsequent lack of cohesion in one’s person and one’s life and the necessary deficit in one’s relationship to (internally consistent) truth.

The second interesting component of value for persons is that it is bifurcated into two areas: (1) the person and (2) the life they lead. It will not do, Nozick suggests, to merely have one or the other, nor will it do to have them as a matter of pure luck. It must be the case, for the best kind of life, that one is “leading the most valuable life, or living it”

(Nozick 1981, 413). This is to say, “[w]e want to be the most valuable kind of person, to have the most valuable kind of life, and moreover, to have that life stem (in the right way) from our being that kind of person” (Nozick 1981, 412). This gives a particular gloss to what it means to protect individuals as value-seekers. People need the ability not only to be good, but for being good to translate into leading a good life in the proper, authorial way.

Third, Nozick provides some comments on the nature of value and society as a whole.

What does Nozick posit as the most valuable kind of society? He writes:

Is the most valuable a tightly organized centrally controlled hierarchical

society of fixed hereditary status, termed by some theorists an “organic

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society”? Although it would have a high degree of unity, it would not

encompass the same vast diversity as a free and open society. A far-flung

system of voluntary cooperation unifies diverse parts in an intricate

structure of changing equilibria, and also unifies these parts in a way that

takes account of their degree of organic unity. Enlisting a person’s voluntary

cooperation or participating takes account of his degree of organic unity to

a greater extent than commanding him (Nozick 1981, 421).

We have here an interesting commentary on what makes the kind of society described in

Anarchy particularly valuable – it would maximize the amount of a certain sort of voluntariness in society. Of course, this would be unlikely to convince Cohen. Indeed,

Cohen would likely say that his own socialist approach is far more likely to recognize individuals’ organic unity than Nozick’s . The question as stated here would presumably come down to balancing the “good” of each individual’s organic unity with the “bad” of commanding some people to aid others, a solution that seems unlikely to placate either Nozick or Cohen.

Fourth, and finally, is the relationship of value to meaning, the latter of which is the basis of rights in Anarchy, to the extent Anarchy sets out such a basis. Where value is a matter of internal organic unity, Nozick argues, meaning is a matter of connecting with the outside world. It is much easier to understand Nozick’s argument here if we turn to The

Examined Life. He suggests, “[v]alue is not the only evaluative dimension. We also want

149 our lives and our existence to have meaning. Value involves something being integrated within its own boundaries, while meaning involves its having some connection beyond these boundaries” (Nozick 1989, 166).71 We can gain meaning through connections with things outside of ourselves. But in order for those connections to be meaningful, the things outside ourselves must themselves have some worth, for example by having value.

Furthermore, the linkage must be of the correct sort: “I cannot give meaning to my life by saying I am linked to advancing justice in the world, where this means that I read the newspapers every day or week and thereby notice how justice and injustice fare. That is too insubstantial and trivial a link” (Nozick 1989, 168). In a reciprocal fashion, “[t]he tighter the connection with value, the greater the meaning. This tightness of connection means that you are interrelated with the value in a unified way; there is more of an organic unity between you and the value. Your connection with the value, then, is itself valuable; and meaning is gotten through such a valuable connection with value” (Nozick

1989, 168). The general point is that the two evaluative criteria are quite closely connected; we should not, therefore, read too much into Nozick’s move from meaning as the basis of rights to value as the basis of rights. As a general matter, we might think of people as “worth-seekers,” and identify this as the basis of rights.

71 Indeed, we might also want other things, like importance (“to count in the world and make a difference to it”) and weight (“internal substantiality and strength”) (Nozick 1989, 170, 178). Nozick goes on to note that we can continue generating evaluative criteria, perhaps ad infinitum, but notes that we can encompass all of these evaluative criteria by placing them under the rubric of “closeness to reality” (Nozick 1989, 181). This takes us down a road towards polyhedral maps of evaluative criteria generated by reality, a topic too complex for the present work. The most I will say is that I do not think adding these further evaluative criteria would have much impact on my argument here, although keeping in mind that other evaluative criteria are available is good practice in our discussion of value and meaning. 150

Our digression into value now finished, we turn to Nozick’s remarks on the content of the domain of autonomy:

If respecting a domain of autonomy is to be an apt response to a person as

a value-seeking self, then this domain must include a range of important and

significant choices (such as religious practice, place of residence, choice of

mate and lifestyle, choice of occupation), as well as a vast range of trivial

choices which go to make up the daily texture of our lives. The choices that

are viewed as significant and central to a person’s life and self-definition

may vary from culture to culture – we can imagine science fiction situations

where others view as trivial other choices we hold as centrally important,

while viewing other choices (trivial to us) as of great significance. In that

society, the domain of autonomy might appropriately be demarcated

differently (Nozick 1981, 501-02).

This last notion, that the domain of autonomy might vary from society to society, seems quite surprising coming from the same person who wrote Anarchy. Is self-ownership culturally specific, not only empirically but also normatively? Of course, Nozick could simply say, with Rawls or Rorty, that he is describing American or Western society; it is perhaps telling that Nozick’s example of an alternative society comes from science fiction rather than some place on Earth.

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1.3: A Libertarian Good?

What are we to make of these arguments of Nozick regarding rights, meaning, and value?

For some, the answer is “not much.” Indeed, there are those that ignore Nozick's comments entirely, like , who argues that Nozick has provided us with

"Libertarianism without Foundations" (Nagel 1981). One can understand Nagel’s frustrations, but it is simply not the case that Nozick offers no foundations for his view, even if we confine ourselves to Anarchy alone. Indeed, one could read Nozick as an early proponent of the kind of cultural particularism that Rawls would later take on in Political

Liberalism and The Law of Nations. (Rawls 1999, Rawls 2001). In a somewhat similar vein, Hunt argues that “[Nozick] is not saying we can derive ethical content from the notion of a meaningful life” (Hunt 2015, 29). Hunt makes an alternative argument regarding the point of Nozick’s M, which is that it serves to “shed explanatory light on the rationality of having constraints at all” (Hunt 2015, 29). However, I think this interpretation is obviated by Nozick’s unacknowledged argument that the content of rights is, in fact, informed by the basis of rights in Philosophical Explanations, Nozick’s own protestations to the contrary.

Others take a different view of Anarchy, though they rarely incorporate the further comments Nozick provides in Philosophical Explanations and The Examined Life.72

72 Partially this may be because much of the interest in Anarchy came before the publication of Philosophical Examinations or The Examined Life. Furthermore, neither Philosophical Explanations nor The Examined Life are works of political philosophy, at least at first glance, and therefore they can fall through the cracks for political philosophers with limited time. Finally, it might simply be the case that 152

Wolff agrees with Hunt that Nozick is working in a Kantian vein in this portion of

Anarchy, in an explicit moment of non-Lockeanism. Locke, as Wolff points out, may have been responding to the explicitly Biblical arguments of Filmer in his Two Treatises on Government. But Locke is no less overtly religious, insofar as the is also

God’s law, and the reason to accord human beings rights is because “we are God’s property, sent into the world by God, and ‘made to last during his ... pleasure.’

Accordingly, ‘no-one ought to harm another in his Life, health, Liberty, or Possession’”

(Wolff 1991, 26).But as Wolff notes, Nozick does not wish to provide a theological argument for the existence of rights, and must therefore move away from the Lockeanism that is otherwise so prevalent in Anarchy. Furthermore, as Wolff also argues, “if the foundation of rights is the general preservation of mankind, then the content of these rights cannot be Nozickian. For, first, preservation rights would, in some cases, generate positive rights to survive... Second, having a maximizing principle of ‘preservation as much as possible’ it appears that Locke ought to endorse a ‘utilitarianism of rights’ view, not a side-constraint view” (Wolff 1991, 27). Nozick turns, instead, to Kant, arguing in this portion of Anarchy, “[s]ide-constraints upon action reflect the underlying Kantian principle that individuals are ends and not merely means” (Nozick 1974, 30-1). Wolff, however, is unsure that Nozick’s Kantianism and the notion of a “meaningful life” are adequate to support libertarian rights, especially if we think that meaning consists in some important way of “attachments to others” and even that life might be “lived for

interest in Nozick has waned as the philosophical conversation moved away from Rawls’ early work and into the response to and the development of political liberalism. 153 others” (Wolff 1991, 29). If that is the case, then Wolff suggests that “an entirely different view of rights might well spring forth - one involving duties to aid others as well as the right to receive aid” (Wolff 1991, 29). To prevent this being the case, Nozick must do two things: “First, he must show that the self-shaping life requires rights to non- interference. Second, he must show that such a life requires these [rights to non- interference] to be inviolable, and, in particular, that it rules out enforceable duties to aid other people" (Wolff 1991, 30). Wolff thinks that the latter task is the more difficult one, though this does not necessarily mean that Nozick has succeeded at the first task, merely that it seems more facially plausible that a meaningful life requires the kind of ”self- government” that libertarian rights are meant to protect from interference. Regarding the second task, Wolff writes:

If people have only negative rights, then there is no guarantee that many

individuals will, in fact, be in a position to lead lives worth living. Perhaps

in such a society many people will have to endure unrelieved poverty. Some

may starve, and others lead menial lives. In other words, the cost of creating

a world in which talented people, with luck on their side, live a life of great

meaning, might be that a significant section of the population can do little

better than strive to secure their day-to-day survival (Wolff 1991, 31).

The core question, then, is whether “if we grant welfare rights to all then it will become either impossible or extremely difficult for anyone to lead the most meaningful life,

154 according to Nozick’s conception of the meaningful life” (Wolff 1991, 32). That is to say, does some enforceable duty of aid interfere to such a degree with the ability to lead a meaningful life that we should accept the potential costs implicit in a Nozickian world?

As Wolff notes, although Nozick comments further regarding the basis of rights in

Philosophical Explanations, “little he says goes any way to settling the problems just raised” (Wolff 1991, 33).

Scheffler takes a similarly dim view of Nozick’s moral basis for rights, though he, like

Wolff, does think that Nozick is at least gesturing towards such a thing in Anarchy.

Scheffler, however, argues in favor of an “alternative conception” of natural rights:

According to the alternative conception, every person has a natural right to

a sufficient share of every distributable good whose enjoyment is a

necessary condition of the person’s having a reasonable chance of living a

decent and fulfilling life, subject only to the following qualification. No

person has a natural right to any good which can only be obtained by

preventing someone else from having a reasonable chance of living a decent

and fulfilling life (Scheffler 1983, 153).

The question, then, is whether Nozick’s posited basis for natural rights in Anarchy supports the self-ownership thesis or Scheffler’s alternative conception. I think Scheffler

155 does not take Nozick’s own position quite as seriously as he should, but the analysis of

Nozick is nonetheless quite edifying. Scheffler argues:

If the capacity to live a meaningful life is a uniquely valuable characteristic,

and if we say that beings with this characteristic have rights, in virtue of

which there are constraints on the way others must behave, then presumably

the function of the rights is to safeguard the ability of beings with this

valuable characteristic to develop it. To say that the valuable capacity to live

a meaningful life is the basis of rights, is presumably to suggest that the

moral protections and guarantees which rights assign to people may be

understood as jealous of people’s ability to actually live meaningful lives

(Scheffler 1983, 159).

“But,” Scheffler goes on, “then it seems clear that the alternative conception of rights is a much more accurate specification than the Lockean conception of the rights which people actually have” (Scheffler 1983, 159). His reasoning is that the goods undergirding a meaningful life are presumably the same, to at least some extent, as those which constitute a “decent and fulfilling life.” At the very least, his alternative conception of rights will perform better than the Lockean conception, “which denies peoples’ rights to goods like food and medical care which are certainly necessary for living a meaningful life” (Scheffler 1983, 159). Indeed, Scheffler goes so far as to suggest that the only way

Nozick’s view is not fully irrational is if “one could not succeed in providing sufficient

156 shares of all necessary distributable goods to all people,” an empirical question which

Scheffler finds unlikely to be answered in Nozick’s favor (Scheffler 1983, 160). In short,

“[i]f the is our concern, then starvation, not taxation, is our worthy foe”

(Scheffler 1983, 160).

We are, I think, getting somewhere with Wolff and Scheffler that we were not with the left-libertarians and Cohen. The practical outcome is similar, insofar as both Wolff and

Scheffler find greater support for egalitarian politics than Nozick does. But the basis of their arguments takes Nozick’s own starting point and uses it against him. The fact that libertarians like Nozick and Mack have not packed up their bags and changed their tunes to a more egalitarian key, however, suggests either obstinacy or that we have missed something.

A detailed and friendly account of the basis of rights in Nozick comes from Mack (2018).

Mack’s principle concern is to show both that Nozick shares the same basis for rights as

Rawls and that Nozick’s further libertarian arguments are a better response to that shared moral foundation than Rawls’ liberal egalitarianism. But for our purposes, Mack is instructive as to what Wolff and Scheffler miss about Nozick’s position. As we saw earlier, Nozick shares Rawls’ concern that utilitarianism “does not take seriously the distinction between persons” (Rawls 1999, 27). What is of greater interest here is Mack’s description of how Rawls and Nozick differ in their further arguments. Nozick, as we know, develops a self-ownership form of libertarianism. Rawls, by contrast, argues that

“we cannot know what principles govern our interactions until we figure out what

157 principles (if any) all rational individuals would agree to within the circumstances that we identify as appropriate for such agreement” (Mack 2018, 53). In other words, whereas

Nozick moves from the separateness of persons to self-ownership, Rawls sees the separateness of persons as requiring us to place ourselves in the behind the veil of ignorance, and then consider what follows. The problem, says Mack, is similar to that of utilitarianism:

We should not expect the principles that govern interactions among

individuals to specify any common end or hierarchy of ends, the promotion

of which is taken to justify the imposition of sacrifices upon individuals. If

the nature of society is that it is an association of distinct persons who quite

properly seek to promote their discrete systems of ends, we should expect

that the basic regulative principles for society are… end-independent

principles (Mack 2018, 54).

In other words, we should not expect an end-state, patterned theory of justice à la either utilitarianism or Rawls to be the outcome of respecting the separateness of persons. There is, I think, something to this concern, at least from the libertarian standpoint. As Mack notes, Rawls essentially collapses separate people into a singular point of view behind the veil of ignorance, as no one behind the veil has enough information to be a distinct person and, therefore, possibly disagree with the resulting liberal egalitarian society described by Rawls’ two principles of justice. Furthermore, as Mack also notes, Rawls

158 does not provide any stipulations for natural rights that precede the original position, instead generating rights from within that standpoint. This is, perhaps unsurprisingly, a problematic approach for Mack, as it is for Nozick, both of whom stipulate the priority of rights to any kind of like that of the original position.

Regardless of whether we agree with Mack or not, it is obvious that libertarians are not entirely convinced by the argument that some sacrifices are worthwhile requirements if we want to protect meaningful lives. Furthermore, libertarians have good reasons, at least by their own lights, to remain unconvinced; it does not appear that critics like Wolff and

Scheffler are taking the separateness of persons seriously, or at least not seriously in the same way that Nozick and Mack do. I would, therefore, like to pursue a different tact, as a supplement, which should weaken the self-ownership libertarian position further. My goal is to critique Nozick not on the basis of rights, but instead to turn our attention to the notion of sacrifice and how it relates to protecting individuals as separate seekers of value/meaning. Making this critique is the aim of the next section.

2: Government and the Good Life

What Wolff and Scheffler show us is that Nozick is presenting a political vision of a good life. That is, from the perspective of us as citizens, the basis for our respect for the autonomy of other citizens is their ability to live a meaningful life.73 This would seem to

73 That is to say, if we think other citizens have rights, the reason we think this is because we respect other citizens as meaning/value-seekers. The acceptance that other citizens have some kind of rights is a necessary premise. I will not, therefore, present an argument as to why we should respect other citizens as 159 present us with a means of evaluating, also as citizens, whether another person’s life is going well, again as a citizen. In this case, a good life is one that is meaningful. We can think of this as the liberal good life. So far, this does not justify us doing anything in particular; it is merely to note that respect for persons’ autonomy, premised on their status as meaning/value-carrying beings, would seem to imply a vision of what a good life entails, without recourse to any other moral principles other than respect for autonomy. If we think we should respect people’s search for meaning/value, then it seems we also must think that it is a good thing when that search for meaning is successful, and a bad thing when that search for meaning fails.

While many theorists ask whether we actually have the rights that Nozick suggests we do, I focus here on a different issue: whether there is any way to foster meaning/value without thereby violating the very rights that meaning/value undergird. This is a unique approach in that it brings into question not the rights Nozick identifies (at least at the level of self-ownership), but the notion of sacrifice. That is to say, I think it is the case that some kinds of interference (read: some level of taxation for humanitarian aid, defined here as fostering meaningful/valuable lives) are not, in fact, harmful, and therefore do not constitute a sacrifice. If there is no sacrifice, there is no rights violation, at least in

Nozick’s worldview. The problem is protecting people from having to sacrifice for others, but when we understand sacrifice as a cost to our ability to live a

value/meaning-seekers, but merely take it, as Nozick does, as a starting point. My aim is to convince even libertarians, or those with libertarian leanings, that we should allow some kind of state humanitarian aid. Libertarians, by definition, already believe in rights, and therefore it is not necessary to argue in favor of them here. 160 meaningful/valuable life (as Nozick would have us do), we realize that not all costs have this specific character.

2.1: The Substance of Leading a Good Life

To begin with, we must examine Nozick’s own notion of what leading a good life actually entails. What does it mean, in more concrete terms, to say that a valuable life has organic unity, or that a meaningful life has connections that go past the limits of the self?

Nozick provides some interesting comments in Philosophical Investigations and The

Examined Life on this subject, and so I shall now turn to the relevant passages. The general aim of this section is to show that Nozick considers both meaning and value to be quantities that exist to varying degrees, but also that not every aspect of our life determines the quantity of value and meaning that our life has. This is important because it removes one possible basis for my argument that would be available if Nozick employed a different approach, in particular a conception of value and meaning as thresholds to be reached rather than quantities that can exist to a greater or less extent. It would be simple to say that if meaning and value are thresholds, then we can protect the worth of a life while interfering as much as we like with a person after they have met the necessary thresholds. That is to say, we could take all the resources a person has in excess of what they need to meet the meaning and value thresholds that constitute leading a good life. If, as is the case in Nozick, meaning and value are continuous rather than binary variables, my task will be more difficult.

161

Let us consider meaning first, since it appears early in Nozick’s corpus. We can see a suggestion that meaning is quantifiable or a matter of degree in Anarchy when he asks

“why not replace ‘happiness’ with ‘meaningfulness’ within utilitarian theory, and maximize the total ‘meaningfulness’ score of the persons of the world” (1974, 50). This initial suggestion is not conclusive, as Nozick here leaves open the possibility that we should not become “meaning-tarians” because meaning cannot be quantified in the way utility can be. However, there are more conclusive statements elsewhere. In particular, in

The Examined Life, Nozick writes that “[t]he greater the link [between myself and some valuable thing] the closer, the more forceful, the more intense and extensive it is, the greater the meaning gotten. The tighter the connection with value, the greater the meaning” (1989, 168). Furthermore, in Philosophical Investigations, Nozick argues that meaning can be thought of as “the value of the realm of value … It is a measure of the degree of organic unity his life brings to the realm of value” (1981, 611). And later,

“unethical behavior… reduces the meaning of the agent’s life … The life of the ethical person will have greater value or meaning” (1981, 612).

Turning now to value, Nozick provides us with further hints in Philosophical

Investigations. To calculate value as organic unity, “[t]he simplest function will be additive: the value of X will be the sum of the value of X’s parts and the degree of organic unity of X” (Nozick 1981 423). The value of X’s parts will themselves be the product of the same function, i.e., the degree of organic unity of that part plus the value of the part’s parts, and so on down until we reach parts that do not have any value in and

162 of themselves, i.e., exhibit no organic unity. Notably, this function produces quantities of value.74 It is left unclear what kind of numerical representation we should use for value

(Integers? Decimals?), but it does seem clear enough that value is quantifiable. Not only that, it seems that value is essentially a quantity; it is not that we then take the product of the value function and perform some further step that translates the quantity into qualitative terms.

We find a similar approach when we consider specifically the matter of leading a valuable life. In particular, Nozick discusses both the value of persons and the value of the life a person leads (which together constitute “leading a good life” when related to one another in the proper way) in terms of “most-ness”: “We can ask what is the best or most valuable kind of person, what is the best way for a person to be… Or we can ask what is the best or most valuable (kind of) life, what is the best way to life” (1981, 411).75

Again, we can note that Nozick is not saying “a” valuable person or “the” good life, but

74 In Nozick’s terms, value is a matter of degree – the term degree appears throughout Nozick’s chapter on value. For example, in just a few pages: “On the view of value as (degree of) organic unity” (1981, 424); “The musical relations among tones may yield a high degree of unification and thus of organic unity in the musical realm, whereas the ‘corresponding’ spatial relations exhibited by the grooves do not give the record an especially high degree of organic unity as a physical object” (1981 425); “This emphasizes how measures of degree of organic unity are relative to a background selection and weighting of relationships” (1981 425-426); “We have spoken of which relationships are saliently weighted so as to contribute to the degree of unification of the material, and also of the content that gets unified, its degree of diversity (where the degree of organic unity is a function both of the degree of diversity and the degree of unifiedness)” (1981 426). 75 There are many references to this “most valuable” or “best” person and life. For example: “whether the most valuable life is not merely another sort of possession”; “what is most valuable for us is the best way we can be” (1981, 412); “Being the best person is not the sole concern”; “Should we swing back, then, to having the best or most valuable life? Yet, just as misfortune can prevent the best person having the best life, cannot good fortune give the best life to someone who is far from being the best kind of person? Certainly it would give him all the passive goods of the best life”; “What we want is both: (a) to be the best kind of person, and (b) to have the best kind of life” (1981, 412). 163 the “most” or “best” of each. This would seem to admit of, if not formal or explicit quantification, at least rendering leading a good life a matter of degree. That is, we want to lead the “best” life or the “most good” life, and there are therefore presumably also

“worst” and “least” forms of life and personal value, as well as various options in between those two poles.76

Unfortunately, Nozick does not match his commentary on the quantifiability of value and meaning with equal attention to how, in practical terms, meaning or value can be attained. This is problematic, because it means we cannot easily ascertain what kinds of activities he thinks enter into the calculations of value and meaning. We saw earlier the reference to one not being able to attain meaning via a connection with justice by simply reading the newspaper. And there also are numerous instances we have seen in which

Nozick suggests that ethical behavior increases, and unethical behavior decreases, the value of one’s life. But in the absence of an actually worked out theory of what it actually means to behave ethically, simply saying that ethics is tied to value is of little concrete help. And this is a general theme in both Philosophical Explanations and The Examined

76 It is interesting to note one way that Nozick does not quantify leading a good life, which is with regards to when a “good life” takes place. In the literature on subjective well-being, for example, there is a concept of “life satisfaction” that is a subject analogue to leading a good life in Nozick. But life satisfaction can be assessed at any time, and thereby quantified over time in addition to being quantifiable as a degree at a particular point in time. Nozick, by contrast, seems to suggest that a life is a singular entity, that can perhaps only be assessed once it is complete: “To make this question [of the best kind of life] primary is to assume that what you should most want to have is the most valuable kind of extended life over time. Why that? We need never occupy the standpoint of looking at our whole life, even at its end. So this standpoint is not adopted in order to have an experience of taking in our life as a whole. However, a theory of value will not hold that all value depends on felt experiences, so a whole life still could be the crucial bearer of value” (1981, 411). 164

Life – we see almost nothing in the way of concrete examples of how to attain value and meaning.

The best we can do, I think, is look to Nozick’s comments in Philosophical Explanations on the extent of autonomy. It is here that he ties autonomy directly to individuals as value-seekers, in a way he does not in Anarchy. Recall that Nozick’s notion is “[i]f respecting a domain of autonomy is to be an apt response to a person as a value-seeking self, then this domain must include a range of important and significant choices (such as religious practice, place of residence, choice of mate and lifestyle, choice of occupation), as well as a vast range of trivial choices which go to make up the daily texture of our lives” (1981, 501). He notes further that what counts as a significant choice will vary culturally, though he uses an example from science fiction rather than the real world.

What can we glean from this passage about what actually produces value? The first answer is that choice seems to play a large role, unsurprisingly since we are here discussing autonomy. Pointing to choices over significant aspects of our lives is also unsurprising; I do not think many of Nozick’s critics would disagree that these areas of life should be the domain of personal autonomy.

The interesting part of Nozick’s comments here have to do with the idea that we need to respect “the vast range of trivial choices which go to make up the texture of our lives”

(1981, 501). This is Nozick and his critics clash; the latter tend to want individuals to pay a cost not in the significant areas of their life, but in terms of their “trivial choices.” That

165 is to say, none of Nozick’s critics are proposing that we force individuals to follow a particular religion, or have a particular job, or marry a particular person. They usually are simply suggesting a taxation scheme and, with the exception perhaps of Cohen, not the sort of taxation scheme that would impinge upon the “significant” choices of our life, in

Nozick’s terms. But does this mean that the cost itself is trivial too? Not necessarily.

The key, I think, is the notion of “texture”; it is the way our day-to-day choices tie together and fill up our lives, allowing us to have something resembling organic unity as persons or in our lives. Each choice in and of itself is, in Nozick’s own terms, trivial. To remove our ability to make a particular trivial choice would, presumably, also be trivial, or at least have the potential to be trivial depending upon how the choice is removed. A trivial choice removed through non-trivial means would no longer represent us paying a trivial cost.77 So, for example, if I am robbed of a dollar, the cost is trivial but the means by which that cost was imposed on me are not. The texture of my life will certainly be affected by the fear of being robbed again, and there is the chance of psychological or physical damage as well, even though in some sense only a dollar was lost. The core question is when and how trivial choices or their absence constitutes the “texture” of our lives, the glue that binds together our various choices into something that has value and meaning. In short: can any choice be removed in a trivial fashion?

77 This leads to an interesting point: it might be that a state could levy taxes legitimately, but not punish non-payers in a way that affects those people’s quality of life, which prison or a particularly large fine likely would. However, I do not think this point is of great interest, as a state could simply withhold access to public goods instead. The question, then, is whether enough people would voluntarily pay taxes to support the creation of public goods valuable enough to convince recalcitrant people to pay their taxes. 166

2.2: Sacrifice

The question of whether trivial choices can be removed in a trivial fashion is of exceeding importance, although it may not appear to be. If trivial choices can be removed in a trivial fashion, then it seems incorrect to refer to what has occurred as a sacrifice.

And if that is the case, then we suddenly seem to have found room for at least some level of state regulation and redistribution of resources, as Nozick’s entire program depends upon the argument that no one should have to sacrifice for anyone else. In short,

Nozickian rights defend people from sacrifice, not from trivial interference, and if the government limits itself to such trivial interference, then we should not think that anyone’s rights have been violated in the process.

Can coercive regulation of behavior ever be trivial in the necessary sense? As a general matter, the answer would seem to be “yes.” Take a few easy cases to start – deciding which side of the road people should drive on, or ensuring that businesses must meet certain standards regarding the production of food, or requiring that people wear seatbelts. All of these regulations might certainly be annoying at times, but it would be harder to argue that they impact anyone’s ability to lead a good life. There are also regulations that obviously violate this Nozickian standard for most people. Enforcing a national dress code or a national religious observance, for instance, would certainly interfere with choices that many people view as key to leading a good life (self- expression and religious expression, respectively). In both cases, there is unlikely to be

167 much controversy in practical terms about whether the government can or cannot regulate without imposing sacrifice on individuals.78

In the middle region, there are regulations like public accommodations law, for example, that would seem to potentially have a fairly large impact on certain people’s ability to lead a good life, but not on others. If a person’s livelihood is making cakes but they think that doing so for a gay person violates their religious standards, or if a person believes conversely that serving religious people at their restaurant violates their own atheistic beliefs, then it seems that for those people at least, their ability to lead a good life is being diminished by public accommodations law. 79 Of course, for the people not being served, their ability to lead their own good lives might well be affected – but the Nozickian standard is not meant to maximize the ability to lead a good life separate from a right against sacrificing for others, and we might therefore think that those who are going unserved must (unfortunately) go without.80 Or take free speech, which is often thought of as a lack of regulation but certainly does not appear that way to those who view some kinds of speech as (non-coercively) harmful. In this case, the government will still step in

78 I will discuss issues of practical implementation further in the next section. 79 Though public accommodations law is commonly thought of as a progressive goal that conservatives are (sometimes and in some cases) opposed to, we must not overlook that such a law is not inherently progressive. It prevents progressive communities from regulating themselves as they see fit, just as it prevents conservative communities from doing so. In both cases, the law prohibits an unfairnes that seems justified to the local community. 80 Although I lack to space to do so here, one could argue that actually we have a case of conflicting rights – the right of the cake maker to decide who to make cakes for and the right of the cake buyer to buy cakes from the same places that people with different identities can. Libertarians do not think the later sort of right exist, but I am not so sure. 168 to enforce coercively certain behavior in a way that will interfere with some people’s ability to lead a good life. These sorts of regulations are more difficult to come to terms with in a Nozickian framework, but perhaps still not impossible to implement in some fashion, as I will discuss in the next section.

Turning to taxation, let us imagine the most trivial form of state redistribution we can imagine. For example, let us posit that the state charges a one-dollar tax to all individuals, that then goes into a pot of money which is paid out equally to every person living below the poverty line. In the United States, with a population of around 330 million people, this would amount to 330 million dollars, redistributed to the approximately 43 million people living in poverty at a rate of around $7.60 a head (or really $6.60, since the poor had to pay a dollar in to the pot as well). The question is, has anyone sacrificed anything?

More specifically, has anyone given up something that contributed in some way to the value or meaning of their person or their lives? I think the intuitive answer is that no, no sacrifice has been made. If someone complained to me about paying a one-dollar tax, I would not set much store by their concerns. Someone might feel like they had made a sacrifice; perhaps they are a hardcore libertarian, and feel such things keenly. But as

Nozick himself notes, experience is not the be-all and end-all of value, and I simply cannot imagine that a reasonable person would think of giving up a dollar as a sacrifice.

And, from another perspective, consider that the $6.60 we are giving to the American poor certainly seems trivial from the perspective of those in need. Indeed, it is almost insulting. Yet this is true of a quantity that is more than six times as large as that which

169 was lost. Even if we feel losses more keenly than gains, and think that such feelings are not irrational, it would be hard to say that a loss is six times worse than a gain is good.

And in this case, even the gain is still trivial, so the loss would presumably have to actually be more than six times as bad as the gain to not count as trivial itself.

The problem for Nozick and other libertarians who are inclined to premise their theories on something like leading a valuable life, is that once we have poked this hole in their argument, the floodgates are poised to open. The question is, how much cost can someone bear, and of what kind, before a point is reached where a sacrifice is being made? In the abstract, this point will come either when the cost affects a person’s ability to make a significant choice, or when the reduction in trivial choices is enough to affect the quality of the “texture” of the person’s life. I will be bold here and suggest that something like a 10% flat tax on yearly income of any kind would not meet this standard.

This would amount to around $2000 per person falling below the poverty line, children included, if we just use U.S. GDP in 2018 as the starting figure (1,015,200 million /43 million x .10). Furthermore, it seems plausible that we could increase the tax percentage in a progressive fashion, again without affecting the quality of the texture of any reasonable persons’ life.81 If someone earns ten million dollars a year, and the state takes

2 million or 3 million, have we affected the value or meaning of that person’s life? Again,

81 Making the tax more progressive might also mean eliminating the tax in lower income brackets. There, even though one would “make back” the tax paid in welfare, one might be unable to make the tax payment in the first place. This issue also could be solved by coordination the taxation and welfare systems, such that someone who ultimately receives a refund would not be required to make any initial tax payment. See Van Parijs (1995). 170

I think the answer is no, especially given that everyone else making that much money will also have to pay a similar tax and therefore we will not have problems of envy.

Just as with regulation, there is undoubtedly a point where taxes become so heavy as to constitute a decrease in the quality of the texture of one’s life. But this point is probably relatively high. Of course, I do not think libertarians like Nozick are likely to follow me to this point. One would hardly become a libertarian unless they thought sacrifice entailed something less stringent than I am suggesting here, even though I have tried to utilize

Nozick’s own theory of the good. But I do think some damage has been done to their argument, and in a novel fashion. I have not questioned the extent of rights but the nature of sacrifice, using Nozick’s own notion of what justifies defending people via rights in the first place. I would like to conclude by noting that basing rights on any other good will probably lead to similar results. That is, I do not think there is a good in life that is so sensitive to resources at every level of wealth as to make any redistribution of that wealth whatsoever a sacrifice by the people being taxed. In a certain way, I am following Parfit in denying that something like a exists (Parfit 1984). There is no human being, at least, whose ability to attain whichever good we pick is affected by every penny and dollar that they have, no matter how many pennies and dollars they have overall.

Unless, of course, we think greed is the good that justifies rights, but I am not aware of any rights-oriented libertarian who makes this argument.82 The general point here is that

82 Such an argument would be distinct from the libertarian notion that greed is instrumentally useful in helping to grow the economy. 171 we can likely provide funding for the kind of institutional supports that Nozick’s meta- utopia requires without violating anyone’s rights, even if we want to retain a Nozickian approach to rights as self-ownership in a more than formal sense. That is to say, even if we reject the left-libertarian position that natural resources are to be owned in common, or Cohen’s more expansive argument in favor of on the basis of freedom, we still have reason to support the more-than-minimal state. What remains, however, is the question of how to actually implement this neo-Nozickian principle of legitimate government interference.

2.3: Implementation

The question remains whether anything can be done in practice vis-à-vis government regulation and taxation to support the meta-utopia without violating someone’s rights. In theory, the government could simply provide an opt-out clause for any regulation or taxation that it performs: “[i]f this government activity interferes with your ability to lead a good life, you do not need to follow/pay the regulation/tax.” Perhaps if all individuals were virtuous, rational, and knowledgeable, this approach would work. But people are often venal, irrational, and ignorant, so it is not clear how such an opt-out approach could function well. If people are not virtuous, then they will be tempted to lie about whether or not a given form of government interference actually affects their ability to lead a good life. After all, I am not arguing that interference is not costly, merely that it is trivially so relative to leading a good life. If people are irrational, they may incorrectly identify the substance of leading a good life and thereby reject government programs they should 172 accept or accept government programs they should reject. Similarly, if people lack knowledge of what leading a good life entails, which seems especially likely as one considers one’s life farther and farther into the future, then one will also accept or reject government interference inappropriately. Any of the three conditions of venality, irrationality, or ignorance will be enough to sink an opt-out approach, and in fact, all three are likely to be in play in the real world.

Another solution, favored by libertarians, is to simply say that because we cannot correctly calibrate government interference, we should simply forgo it. This logic follows the same form as the notion in the law that it is better for ten guilty people to go free than for one innocent person to be imprisoned. In other words, if a government program might violate anyone’s rights, then we should forgo that government program. We could expand the example out by orders of magnitude and the logic would still seem to hold – better that a hundred or a thousand guilty people go free than one innocent person go to prison, better that a hundred or a thousand people be unable to lead a good life than one person be forced to sacrifice a component of their own pursuit of the good life for someone else.

Of course, Nozick does allow for the possibility of such an extreme scenario that this logic no longer holds; but in practical terms, libertarians believe that the right against sacrifice trumps the needs and desires of others (Nozick 1974, 29n*). However, if this is the case, then Nozick’s meta-utopia will be impossible to achieve. First, it is hard to see how we will convince the many Americans who currently rely on government welfare and regulation to give up these programs. Second, even if we could convince people to

173 move to Nozick’s meta-utopia, once it is in place people likely will still need government support for the utopia to function in a way that makes it appealing. In other words, it is likely that we could neither achieve Nozick’s meta-utopia, nor maintain it once achieved, without the kind of government support via regulation and welfare that libertarians inveigh against. There is no truly libertarian form of the open society that manages to preserve the things that make such a society appealing in the first place.

Is there any other approach that we might take to distinguish between costs and sacrifices in the real world and thereby enable the meta-utopia? Nozick himself provides one such possibility in the notion of “compensation” that he uses to justify the minimal state in the face of hold-outs who wish to remain in the state of nature and handle their security themselves (Nozick 1974). Compensation also lies at the basis of Nozick’s approach to the initial acquisition of property – it is acceptable to not leave “as much and as good” of the resource in question if the acquisition expands the options of others by way of compensation (Nozick 1974). The general notion here is that if someone is compensated for their loss, then that loss can be justified even if it otherwise violates a person’s rights.

This is a controversial portion of Nozick’s argument amongst his fellow libertarians, as it would seem to justify things like taxes for the sake of producing public goods that then benefit everyone, including those who were taxed (Lomasky 1987, 143; Gaus 1991). Any such tax might have to incorporate some kind of cap, as people might eventually pay more in taxes than they receive in benefits. But this does not preclude the redistribution of wealth, especially in those areas where the wealthy might benefit more from

174 redistribution than those they are redistributing to. Relatively wealthy people benefit more from fast internet or efficient airports, for example, both of which could be provided or regulated by government action rather than the private sector (or through some combination of the two).

However, a principle of compensation does not take us very far towards a more-the- minimal state. For one thing, not all forms of redistribution that are necessary for the effective operation of Nozick’s meta-utopia are likely to be compensable. Even if we incorporate compensation for historical wrongs, as Nozick admits we might in Anarchy, this still will be a poor substitute for the kind of universal, practically available rights of exit and founding that render Nozick’s utopia appealing. It is probably the case that it is not Pareto efficient to move from our current society to Nozick’s meta-utopia; some people, and not only the rich, will likely bear costs that cannot be compensated without undoing the necessary redistribution of resources. In other words, we cannot afford to compensate everyone who will bear costs in the transition to Nozick’s meta-utopia.

Furthermore, it is likely that compensation will be better able to justify welfare programs than regulation, insofar as the former tends to deal with wealth and therefore compensation is easy to implement. In the case of the baker who does not wish to bake cakes for people with a certain identity, for example, it is less clear what compensation would actually entail, as the interference of a public accommodations law is difficult to translate into pecuniary terms. This goes for many forms of government regulation,

175 especially if it touches upon individuals’ deeply held beliefs. Unfortunately for the libertarian position, however, it is not always clear that we can respect everyone’s rights in these situations. Gun control is a good example. Pro-gun individuals do not see it as being anyone else’s business whether or not they own a gun, as they believe they are, by and large, responsible adults who treat their guns in a reasonable fashion that is unlikely to hurt themselves or, more importantly, anyone else. Anti-gun individuals think that, no matter how responsible any individual gun owner might be, a society of gun owners increases the incidence of violence, which is precisely what even a libertarian state is meant to prevent. Thus, we have a disagreement here not about the nature of rights – both sides are employing a negative rights approach that says individuals should not coerce others except in self-defense – but over the application of those rights. Abortion is a similar issue. For pro-choice individuals, abortion is a matter of personal autonomy and privacy that is no one’s business other than the pregnant woman’s. Pro-life individuals, on the other hand, view abortion as killing a human being, and therefore a textbook case of coercion. Again, the disagreement is not over the nature of rights, but their application.

Finally, consider education: do we allow parents to control their children’s’ education, or do we find that this approach entails a form of coercion by the old against the young that can only be overcome through mandatory public education? Thus, even though regulation makes compensation difficult, we cannot avoid having to pass regulations, at least in some important and controversial situations. Although Nozick might prefer it to be otherwise, in each of these cases it seems like someone is going to be coerced.

176

Still, perhaps (compensable government action) + (government resolution of conflicts over the application of rights) = (the limits of government activity). This still probably would leave us short of the necessary government support to render Nozick’s meta-utopia possible and functional. Subsidizing mobility or a universal basic income, both of which are plausibly necessary institutions to make the meta-utopia function well, seem to fall outside of either compensable costs or a conflict between rights. Even the more affordable option, direct subsidies for movement, seems unlikely to be the kind of cost that taxpayers are themselves compensated for fully. The wealthier one is, the more likely it is that one is paying more into the subsidy fund than one is getting out of it, and it is difficult to see how the social benefit of enabling more people to overcome the dilemma between the good life and the moral life helps those individuals who are already wealthy enough to have overcome such concerns.83

The implementation of the Nozickian principle would therefore seem to require some further basis for discriminating between trivial and non-trivial costs. Perhaps the answer lies with research into human happiness, as referenced in the Introduction, which has given us a better understanding of how precisely human happiness functions. Contrary to

Hayek, it is in fact increasingly possible to predict what will make people happy, perhaps even more accurately than those people could predict themselves. Whether or not this justifies paternalistic policies, it may well serve as a means of discerning where to draw

83 As I noted in Chapter One, it is likely that the very wealthy already have the wherewithal to align their ethics with their pursuit of the good life. 177 the line between legitimate and illegitimate forms of government intervention into people’s lives for the purposes of supporting the open society.84 For instance, there is reason to believe that emotional well-being begins to level out for most people vis-à-vis wealth once one earns a certain amount of income per year (something around $75,000)

(Kahneman and Deaton 2010). While relying on this finding to tax earnings above

$75,000 would be premature, it does at least suggest that high taxes above this point will tend to have minimal effects on emotional well-being over the long term.85 Or, since we know that spending money on “experiences” tends to produce more happiness than spending money on material objects, we might tax the latter kind of consumption more than the former kind, without affect overall happiness too much.86 The general point is that we are starting to know enough about human psychology to make a persuasive argument, using the rigorous standards of the scientific community, to decide which sorts of government interventions are likely to interfere with leading a good life.87

84 This runs the opposite direction of many of the current applications of positive psychology to policymaking, which tend to focus on how the government might help people be happier, rather than what the government can do without making people unhappy. See, e.g., Brooks 2008; Diener et al. 2009; Bartolini et al. 2016. It may well be that the latter is an easier task than the former, given the evidence for the existence of a “hedonic treadmill,” i.e., that most people’s happiness tends to return to baseline after both positive and negative experiences (Diener, Lucas, and Scollon 2009). 85 It is an intensely interesting question how we should measure the good life, and one that must be answered for my account to be fully satisfying. Nozick, however, does not provide us with the necessary resources to do so, such that answering the question would take us too far from our present subject. 86 This of course relies on the inverse of the finding being true – that diminishing one’s ability to buy physical things reduces happiness less than diminishing one’s ability to buy experiences. This is by definition true if we use how happy one would have been had they acquired the particular thing or experience as the relevant baseline. 87 The recent replication crisis in psychology suggests that we should not be too quick to base sweeping policy changes on the findings of positive psychology, but this suggests caution rather than total forbearance (Kahneman 2010). 178

One problem with relying on psychological findings for determining how to implement the Nozickian principle is that the results are at the population level. There are, that is, exceptions to every rule that psychology suggests can be applied to most people, most of the time. This is not to attack psychology, but it does mean that we should carefully consider the experiences of outliers when designing public policy. The core questions are how to identify the existence of such outliers, and whether their existence (or probable existence) is enough to render any related government interference illegitimate. On

Nozick’s terms, it would seem that any reduction in anyone’s ability to lead a good life would be defined as a sacrifice and therefore render any government interference that would produce such a sacrifice illegitimate. This means that even if only a few outliers exist, they could prevent a program from being implemented. Of course, if we could actually identify such outliers specifically, the program would be easier to implement; people with outlier characteristics would be excluded from the program, or duly compensated. The notion of there being exceptions to rules is not unreasonable in and of itself, and we are still closer to the “true” impact of government policy on the ability to lead a good life if we employ psychological findings than if we simply rely on compensation alone.

Another problem has to do with the difference between Nozick’s notion of leading a good life and the way positive psychology tends to operationalize the concept of human happiness. Although Nozick has a seemingly objective account of what leading a good life consists of, it is pitched at a very abstract level. There is more room within Nozick’s

179 notion of leading a good life for individual differences in how to conceive of what a good life is than there is in positive psychology. After all, psychological research requires the operationalization of abstract concepts into concrete terms. We might worry, then, that some ways of life that Nozick would recognize as leading a good life would not appear that way in psychological research. This is a perfectly reasonable worry, and serves as another speedbump in the over-eager implementation of psychologically informed government policies. However, we should not take this concern too far. The standard operationalization of subjective well-being, for example, consists of assessing positive emotion, negative emotion, and overall life satisfaction (Diener 1984). Each of these measures largely relies on self-report, which is helpful here because it allows individuals to premise their happiness on different foundations. We might be more concerned with objective list approaches to happiness, but here again the operationalizations are usually fairly capacious, involving things like having high-quality relationships with others or feeling challenged by one’s work (Ryan and Deci 2001). In short, while there are likely differences around the margins that we need to account for, it seems unlikely that findings from psychology employ an operationalization of happiness that is so at odds with Nozick’s concept of leading a good life as to be irrelevant.

Even if I am right so far, and the implementation of Nozick’s principle is practically possible, this does not yet mean that it is feasible. It still involves imposing costs, many of which will be borne by those with the resources to access political power and thereby prevent such costs from being imposed. Of course, we could avoid this situation by

180 keeping the costs of supporting the meta-utopia lower than the costs necessary to oppose it – lobbying is not cheap! – but there is no reason to think that this will allow for adequate funding of the meta-utopia.88 The wealthy are a minority by definition, but they wield outsized political influence. We need some way of neutralizing this influence, either by convincing the wealthy not to resist redistribution or by overcoming the ability of the wealthy to use their resources to persuade the majority of non-wealthy citizens either to oppose redistribution or to not involve themselves in politics.

The more cynical response here, without falling into full-on pessimism, is that what is on offer with the open society is a concrete program for a different form of politics that will only really become available when support for our current system diminishes. That is, we must wait for some opportunity to implement the open society, as we may have had with the 2008 financial crisis. The effects of climate change, if nothing else, will likely force us to change our political and social institutions, and such opportunities always open up possibilities beyond any single option. That is, what will be obvious is that our present system is not working, rather than what the alternative should be. It is in such circumstances that a concrete description of an alternative society is most useful. Here, the open society is likely to be more appealing than some of socialist or communitarian alternatives, at least to an American audience that still tends to respond to the ideals of individualism, and has been constructed to do so by years of neoliberal governance. We should not overestimate these advantages, however. It is not as though the Libertarian or

88 Perhaps the case would be different if the wealthy thought that their resources would otherwise be taken from them more violently and in greater quantities by some sort of Marxist revolution, but this seems unlikely, especially in an American context. 181 the Green parties in the United States, which the open society perhaps has more in common with than with the politics as usual of the Republican and Democratic parties, attract much interest, even at the local level. Nonetheless, the open society, as realized in a well-functioning and well-supported Nozickian meta-utopia, seems to solve several of the problems with our current society in a way that should be appealing across a wide range of political beliefs.

A more optimistic response to the issue of plausibility is to note that the features of

Nozick’s meta-utopia that make it appealing to an American audience can be mobilized even outside of the kind of opportunity afforded by “big events” like 9/11 or the 2008 financial crisis. For one thing, Nozick’s meta-utopia need not be realized all at once. The logic of the meta-utopia pushes us toward various forms of regulatory and welfare reform that might be realized in piecemeal fashion. We must be careful here to attend to our institutional context – some policies or programs that would be reasonable in a fully operational Nozickian meta-utopia may well be dysfunctional if implemented in our present society. For instance, it would be unreasonable to pursue a program of reducing the size of the federal government without a concomitant increase in the support for the rights of exit and founding that make the open society appealing when compared with the regulatory state. This is one of the dangers of identifying the open society too closely with standard libertarian policies, as Nozick clearly does with his meta-utopia and Gaus,

Thrasher, and Vallier occasionally suggest in less explicit terms in connection with their versions of the open society (Gaus 2015; Thrasher and Vallier 2018).

182

One area where moving towards Nozick’s meta-utopia is rather plausible is the devolution of power from the federal government to the states. Given that both major political parties in the United States have recent experience with a federal government that is not to their liking, we might think that allowing states more control over regulation and welfare might be appealing across the political spectrum. Nozick’s meta-utopia would likely operate more effectively at a sub-state level, given that American states are the size of some countries, but it is still more likely that individuals will be able to find a society that satisfies their preferences if the states have more control. This would require some combination of increased state power and decreased federal power – the goal in

Nozick’s meta-utopia is less a polyarchy of overlapping jurisdictions than a of different and distinct ones (Cohen and Sabel 1997). Polyarchy is still relevant, as there is still a need for federal programs beyond the provision of national security, as the rights of exit and founding must be provided for every citizen. The means enabling these rights, however, could be up to the states, within certain boundaries. There is no reason to think that experimentation with and diversity in how to enable these rights is any less relevant than for other policy programs. But in general, the point is for the states to be able to have different laws rather than for them to serve as laboratories of democracy whose findings are then taken up and coercively enforced by the central federal government. That is,

Nozick’s meta-utopia entails a notion of progress, but it is one that relies on the choices of individuals rather than the actions of the federal government, and which does not, therefore, necessarily converge towards any universal standards (national security, inter- state conflict, and the rights of exit and founding excepted).

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To take a current example, it is probable that in Nozick’s meta-utopia, the Affordable

Care Act would be seen as illegitimate. This is not because Nozick is opposed to socialized healthcare in and of itself, but because the decision to have such healthcare should not be made by the federal government. We might argue that healthcare is integral to enabling rights of exit and founding – mobility in the United States, for example, is limited by the fact that many people get their health insurance through their particular employer.89 But if we are not persuaded by such an argument, the logic of Nozick’s meta- utopia suggests that it would be better if it was left up to each state whether or not to have universal healthcare; Massachusetts can have such a program, while Kansas forgoes it.

Each state would need to pay for its own healthcare system, which of course would require that each state have the taxation powers necessary to do so. Another issue that might be better settled at the state level than the federal one is gun ownership, though here again we might think that moving decision-making to the county or municipal level would be better still.

We might wonder, here, whether or not people would actually sort themselves by ideological preference into different communities, or whether they would simply “follow the money” and go to where work can be found. There is nothing in Nozick’s meta-utopia that de-legitimates the latter strategy. It is probably part of most people’s conception of the best possible world that they have a job, or at least this is true of the approximations

89 This was pointed out to me by Anna Shabalov in conversation. 184 of the best possible world we can actually realize in the real world. Furthermore, there are plenty of interesting decisions to be made even within the realm of economics. Do we prefer a pro or anti-union state, for example, or do we prefer a state with more or less corporate regulation? At the extremes, we might even be able to choose between a capitalist and socialist economy. But it would certainly decrease the appeal of a

Nozickian society if decisions had to be made based on economic reason alone, with no room for sorting based on other preferences. This is a real concern, but we should note that there are still ideological choices to be made even if finding work is a necessary condition for movement. California and Texas have two of the largest and fastest growing economies in the United States, for instance, but differ from one another quite drastically along various ideological lines. Thus, even if people are driven primarily by the need to find work, there is still ample room for sorting along their other preferences.

A final point – one might question whether my argument in favor of the legitimacy and plausibility of a more-than-minimal state actually undermines the need for the open society in the first place. If we can justify the kind of regulations and welfare policies that

I have tried to argue in favor of here, then why do we need Nozick’s meta-utopia in order to undo the dilemma between the good life and the moral life? Why not just have the state use its power to eliminate immoral situations like poverty and violence? In that case, not only will peoples’ pursuit of the good life not conflict with the moral life, but they also will not have to worry about behaving morally at all – the state will take care of it for them as long as they pay their taxes and follow the law.

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One response is to note that while this chapter has argued in favor of a more-than- minimal state, this still probably entails a smaller and less activist state than that of the present United States. The only kinds of government actions that are justified are those that aim at enabling the good life, and that can do so without interfering with anyone’s current pursuit of the good life. While this still might allow higher taxes than we currently have in the United States, at least with regards to the rich, the things the government can do with those taxes is more limited and more technocratic than many current programs of the U.S. federal government. In some cases, like those of violence or poverty, the state can likely act, but in other cases, like public accommodations or the

Affordable Care Act, the state will have to give up its power to voluntary associations.

Military spending would also likely decrease – there is little room in the more-than- minimal state for the kind of activist foreign policy that tends to justify American military spending, as it is not clear how such a foreign policy relates to enabling good lives for

Americans.

A second response here has to do with the nature of the ethical life and what makes a such a life valuable. If the ethical life is the same for every person, then it seems more reasonable for the federal government to simply enable that kind of life by acting to reduce immorality in society. And if there is no necessary connection between individual choice and the ethical life, then it is perfectly reasonable for the government to “be moral for us,” so that we do not need to worry about behaving ethically ourselves. As a general matter, both of these approaches may be correct and legitimate; but they are problematic

186 when considering the behavior of the state. That is to say, it is perfectly reasonable for a voluntary group to view the ethical life in singular terms, or to take on the responsibility of ethics instead of leaving it up to each individual member to do so. The problem is not so much that these approaches are controversial. After all, supporting the rights of exit and founding may well require controversial policies, even if such support does not violate anyone’s rights. Reasonable controversy need not track the violation of rights.

The problem is that implementing any particular view of ethics would not actually achieve an ethical life for all those people who disagree with the state’s view of ethics.

And even if the state does implement an individual’s particular view of ethics, the state

“doing ethics” so that people do not have to worry about it does not allow people to achieve the good life that is dependent on direct engagement in pro-social pursuits. The point, in short, is not directly or solely to create a more ethical world, but to enable individuals to themselves live more ethical lives by their own standards of ethics.

3: Conclusion

This chapter has attempted to provide a means of squaring Nozick’s emphasis on a right to self-ownership with the necessary government support for his meta-utopia. Even if I have been successful in this effort, however, we still need to consider how to actually transition to Nozick’s version of the open society. Some degree of taxation may be legitimate, but it is unlikely to be popular. Nor are changes in the current regulatory and welfare policies of the state likely to be met with much enthusiasm, even if Nozick’s meta-utopia places the good life front and center. 187

Chapter Six: Conclusion

I have pursued a fairly libertarian approach in this project so far, though I have gone beyond pure libertarianism in advocating for a more-than-minimal state. In this chapter, though, we will consider a much-more-than-minimal state, in which we not only move past the minimal state in order to support the meta-utopia in necessary ways, but actually limit the scope of the meta-utopia itself in the face of a plurality of important and relevant values.

I have argued so far that certain forms of regulation or welfare might interfere with the

Nozickian meta-utopia, and therefore should be given up. But perhaps we are not ready to do so. Perhaps we think achievements at the level of the federal government regarding things like public accommodations and gay marriage should not be undone for the sake of instituting an open society. Or perhaps we do not want to foreclose future progress at the federal level, even though progressives currently find themselves in the position of resisting much of the federal government’s activities rather than supporting them.

Perhaps we simply believe that the open society as Nozick describes it is implausible or unrealistic and does not itself meet the feasibility constraints that this project has assumed to obtain. 188

In this concluding chapter, I would like to examine some of those places where we can push on Nozick’s utopia in ways that may limit its scope to something less than society as a whole. It may well be that Nozick’s meta-utopia is a good description of how we should organize some spheres of social life, but not others, in seeking to dissolve the dilemma between the good life and the ethical life. Furthermore, there are social goods other than enabling individuals to live an ethical good life – justice, equality, freedom, and so forth.

Even where Nozick’s meta-utopia is a poor fit, his arguments force us to consider the real costs of forgoing the meta-utopia in favor of a less open society, in which there is more room for government coercion. These costs may be worth bearing in light of multiple competing values.

First, we might think that a much-more-than-minimal state is necessary for the meta- utopia to function at all. It could well be the case that devolving power from the federal level to the states or even to smaller sub-units would simply allow individuals to radicalize into separate communities that have so little to do with one another, and this might obviate the appeal of Nozick’s meta-utopia as a method of social experimentation with different ways of life. Or, the same devolving of power to sub-state units might enable greater homogenization around a consumerist way of life, as the state will no longer be able to put up resistance to other loci of power. And even if Nozick’s meta- utopia does enable new forms of life as live options, people may not value these options, and therefore will be unwilling to pay the costs associated with making those options

189 available. Finally, even if new ways of life are made available, and some of them are valued, these new valued options might not consist of instantiations of the ethical good life, thus undermining the normative thrust of this project even if it is freedom-enabling.

Second, we might think that even if the meta-utopia would function without a much- more-than-minimal state, giving up our present society with its much-more-than-minimal state is too costly. In particular, Nozick’s meta-utopia interprets freedom of association as incorporating the ability to exclude others from one’s association. This is why something like public accommodation law seems to conflict with the meta-utopia. Many will find this quite problematic, even if we note that the right to exclude others means that leftists can exclude those people who they find distasteful or immoral just as well as the usual, conservative opponents of public accommodations can. Furthermore, even if we place boundaries on the right to exclude, we might worry more generally that by foreclosing the ability of the federal government to enforce moral rules coercively, we are giving up too much. In the meta-utopia, many kinds of law that currently enforce certain visions of morality above and beyond the prevention of coercion will be rendered illegitimate. We may be unwilling to give up these laws, or the future possibility of such laws, even if in doing so we leave open the possibility that those we disagree with use the same levers of power to institute their vision of society.

All of these concerns point us toward a more limited form of Nozick’s meta-utopia, in which the open society is circumscribed by a much-more-than-minimal state that is

190 powerful enough to enforce moral rules and resist other loci of power, while also serving to ensure that the ethical life is a live option for citizens. In such a society, we can maintain the attractive features of our present much-more-than-minimal state, while also instantiating the meta-utopia to the extent that it is possible. This may reduce the ability of the meta-utopia to enable the ethical good life, but allows us to pursue other important social goods like justice.

1: The Necessity of a Much-More-Than-Minimal State

First of all, we might find my argument in the previous chapter implausible. That is, we might think that the level of support and regulation required for the meta-utopia to operate effectively will go beyond imposing costs on people and into the realm of imposing actual sacrifices, especially if what we are interested in is experimentation that helps people live an ethical good life. Perhaps we simply cannot tax people at a high enough rate, or regulate their behavior to a high enough degree, to achieve the meta- utopia without violating people’s rights of self-ownership. If that is the case, and if I was right to suggest that jettisoning self-ownership would unacceptably reduce the feasibility of the meta-utopia, then we would have to limit the scope of the meta-utopia to those areas that we could effectively support without imposing sacrifices on anyone. Why might the kind of resources and regulations available to a more-than-minimal state be inadequate? I consider four possibilities here: (1) that the meta-utopia will be too diverse,

(2) that it will be too homogenous, (3) that people will not value the new options

191 presented by the meta-utopia, and (4) that individuals will not tend to choose the ethical good life even when the option exists to do so. In each case, for the meta-utopia to function in a way that maintains its initial appeal, the state must engage in behaviors that would impose actual sacrifices on citizens.

1.1: Norm Diffusion and Diversity

One question regarding the generation of knowledge is whether the open society allows such extreme voluntary organizations to exist as to make it less likely that one can persuade someone from a different community to change their way of life. Perhaps it is easier to convince a closeted communist of something than one who is able to give full rein to their desires. The diffusion of norms therefore might be reduced in the open society relative to our current, more homogenous society. If norms cannot diffuse easily, then the knowledge-generating effect of the open society will be undermined. Each experiment in living will occur in something of a vacuum, rather than being taken up and investigated further in diverse locales and contexts.

While it may be the case that a decentralized society is better than a centralized one when it comes to the acquisition of knowledge about possible worlds, Michael Bennet argues that it may also be the case that a decentralized society is worse at actually achieving those possible worlds (2016). This is based on a simple but powerful observation. It is typically the case in a centralized state that we need only convince a majority of the

192 population that a certain policy is worthwhile for that policy to be applied to everyone via state regulation. But in a decentralized state, where policies beyond anti-coercive measures rely on voluntary uptake, universal application would require universal agreement on the worthiness of a given way of life.90 Therefore, while the decentralized state will perhaps discover good policies more readily than the centralized state, the former will be unable to implement those policies as easily as the latter. The majority is less free in the open society than in a centralized regulatory state to realize their vision of the good society.

In response, we might note that while it may be the case that universal change is more difficult in the open society than in the centralized regulatory state, piecemeal change is in fact easier. Individuals, whether alone or in groups, can enact their preferred version of the good society right now, rather than waiting for the state to take up their cause.

Therefore, up until we reach a majority of society that supports a given way of life, we should expect that a meta-utopia will prove superior at both discovery and application.

This may be enough to justify the open society with regards to enabling ethicality, depending upon how pessimistic we are about the possibilities of finding a way of life that is both appealing and reduces harm. If we think it unlikely that we find a way of life that is appealing to the majority of people while also reducing harm, then there is little reason to be concerned about whether or not the majority could implement universally

90 This of course depends upon the rules governing agreement within each association – given that at least some associations will not require universal agreement, norms could spread throughout society more easily than in the extreme case I am discussing here. 193 applicable policies in a centralized regulatory state. If we are more hopeful, however, then we still might support the meta-utopia, as without discovering new ways of life, we will never have a majority supporting ethical behavior in the first place. It may be tragic, then, that we will not be able to universally apply such a way of life, but this still brings us out ahead; at least a majority of people will be engaged in the ethical life, rather than the much smaller number of people who, like Singer, currently are.

We might also worry, in the case of a centralized state, whether or not the majority is durable. It could be the case that over time, the fortunes of ways of life that tend to enable ethical behavior wax and wane. If a centralized regulatory state passes laws that reflect majority opinion, this could lead to the interruption or suspension of policies that are meant to enable ethicality. It is difficult to plan for the future, not to mention a source of deep anxiety, when one inhabits a precarious position. In a meta-utopia, these fluctuations likely would be ameliorated. A reduction of support for a given way of life that reduces harm could go from 51% to 49% of the population without causing a massive swing in overall outcomes. Thus, while the maximum reduction of harm may be less if we employ a meta-utopia rather than a centralized state, the minimum harm reduction may well be higher. Is the use of such a minimax principle appropriate here?

Perhaps it depends, again, on how likely we are to see majority support for policies that enable ethical behavior. As already stated, such majority support seems less likely if we do not employ the open society in the first place.

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1.2: Norm Diffusion and Homogeneity

We can also take the opposite view – perhaps within an open society, the persuasive force of some groups will be so great as to render society homogenous. If this is the case, the open society undermines diversity rather than protecting it. We can think of this concern as a version of the issues dealt with in multiculturalism regarding the rights of minority groups, and whether or not such groups need special rights and representation in order to maintain their existence in the face of a majority culture.91 This logic can be expanded beyond cultures to ways of life more generally. The open society respects and protects diversity by enabling individual freedom of association. This is different from actually promoting diversity, much less enforcing it. That is to say, if people do not want to experiment with new ways of life, and instead desire to voluntarily join a homogenous, all-encompassing society that has the same population and geographic contours as the state itself, this is perfectly compatible with the open society. While it is true that in

Nozick’s meta-utopia, people would be voluntarily joining the dominant way of life rather than being forced into it, it still reduces the appeal of the open society for someone like Singer, as a lack of diversity would undermine the knowledge-generating feature of such a society.92

91 For relevant discussion of special rights and representation, see Kymlicka 1996 and Young 2011. 92 Note that this is the case even if we ignore the problem of human irrationality with regards to choice – I will discuss this further issue in the next chapter, as we are here only concerned with a well-functioning version of Nozick’s meta-utopia. 195

Indeed, Singer himself offers a compelling critique of the meta-utopia in this vein, as referenced in Chapter 2.93 The issue here is that Nozick does not offer an adequate account of what a free choice actually consists of. He eliminates only formal political sources of constraint on choice, without dealing with other forms of influence that many find to be undesirable. But many solutions to these undesirable sources of influence will likely take us well beyond the more-than-minimal state. Singer himself notes that his argument “smacks of paternalism and has unpleasant totalitarian associations,” which is suggests what Nozick’s own libertarian response to Singer’s objections likely would entail. But as Singer goes on to note, “[w]hat if the choice lies not between paternalism and freedom, but between making a deliberate attempt to control the circumstances under which we live and allowing those circumstances to develop haphazardly, permitting only an illusory sense of individual liberty” (Singer 1974, 39).

Singer’s argument can be seen as an anticipation of more recent work in behavioral economics, as exemplified in the popular mind by Thaler and Sunstein’s notion of

“libertarian paternalism” (Thaler and Sunstein 2009). However, Singer goes a step further than Thaler and Sunstein, who limit their suggestions largely to aspects of private, rather than public, life. Indeed, Thaler and Sunstein explicitly note that they are not suggesting a form of political paternalism. They are interested in “health, wealth, and happiness,” and do not discuss issues like voter behavior or–of greater interest here–behavior in (Thaler and Sunstein 2009). But, as Singer was already aware in the 1970s, there

93 Page 77. 196 is no reason to think that human irrationality and ignorance are confined to decisions about what food to eat or whether to take up smoking. We use the same mental equipment to decide broader questions about our way of life, and while the momentousness of such decisions sometimes might cause us to employ our more reflective cognitive capabilities, we oftentimes still end up living a particular way through a series of small decisions rather than a single decisive one. Furthermore, Singer is going beyond the issue of irrationality and into the phenomenon of social construction.

I emphasized the role of adaptive preferences in overconsumption, but we could also make an argument that many people are constructed as consumers. In other words, they are behaving rationally in pursuit of their reflective preferences, but we can offer a story about where those preferences come from that throws their legitimacy into question. The general point is that there are forces in society beyond those of formal politics that bound the scope of choice for individuals–whether irrationality, ignorance, or the actual construction of preferences–in ways that we might well find normatively problematic. In the present case, the normative problem is that these various social forces will keep society stuck in the pursuit of a material good life even if we institute Nozick’s meta- utopia using a more-than-minimal state.

What would it take to open up choice in light of Singer’s critique? And in line with the concerns of this project, what solutions are actually feasible? Many possible solutions seem infeasible in light of the problem itself; we are unlikely to ban the way advertising works in our society, for instance, precisely because the same kinds of advertising that

197 work to sell us consumer goods are also used to convince people to vote for politicians who support advertising companies (Herman and Chomsky 2002). Supreme Court decisions like Citizens United that interpret money spent on advertising as an exercise of free speech similarly make it unlikely that we can do much to undo the “muck” with which Singer is concerned. The real question, then, is whether Nozick’s meta-utopia is more likely to exacerbate or ameliorate the power of these undesirable influences on individual choice, especially with regards to consumerism. Answering this question would require more space that we have here, but we should at least note that Nozick’s meta-utopia seems to require giving up even those limited forms of government intervention that push back against the intellectual hegemony of consumerism. We also must be concerned that the government is itself a locus of power that is accessible to those entities that support consumerism, and thereby the state itself may contribute to the stickiness of consumerism. Finally, we also should not underestimate what kind of regulation is possible within a more-than-minimal state, especially if regulations proceed slowly over time so that relevant actors can adapt without being forced to make the kinds of sacrifices that a more immediate shift would require. So, for example, it is possible that we could impose costs on certain forms advertising and thereby encourage changes in advertiser behavior over time, perhaps eventually arriving at a full ban on some approaches, without imposing the kinds of sacrifices that an immediate ban would entail.

Imposing costs over time is also a means of rendering such policies more feasible; it is easier to mobilize the necessary political power to tax advertising than to fully ban it, and it is easier to ban advertising in some areas rather than ban it all together.

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1.3: Valuing New Choices

Another problem may be that real people do not adequately value the new choices that they would have access to in an open society like Nozick’s meta-utopia. Even if we assume away the problem of irrationality and ignore problematic forms of the social construction of preferences, there is still a real possibility that our current society fulfills to a reasonable extent most peoples’ considered and normatively legitimate desires. If this is the case, then the losses that are associated with any political transition, the one to the open society included, will not seem to be worth paying. We should not, after all, overestimate the horrors a neoliberal consumer society. As one heuristic, while millions of Americans do indeed suffer from depression, they only account for around 7% of the

U.S. population (National Institute of Mental Health). Furthermore, it is certainly possible for many people in the U.S. to “check out” of consumer life, but few people pursue this possibility. Those communes that do exist are not often viewed as real options for people living successful lives in mainstream society. But there are plenty of alternative ways of life that people engage in already, many of which are in fact aimed at the ethical life – for instance, voluntary , Ecovillages, tiny houses, minimalism, mindful consumption. Why do we need an open society, then, if people already seem to have plenty of opportunities to experiment with different and new ways of life?

Nozick argues this point himself in his essay “Who Would Choose Socialism?” (1997).

There, he notes that even in Israel, where kibbutzism is a respected and successful way of 199 life, only 3.5% of the Israeli population participates (1997, 277-78). Thus, he writes that

“[i]t seems fair to say that the major reason for an Israeli’s not living in a kibbutz is that he just doesn’t want to live that way” (1997). Of course, we can question Nozick’s description of barriers to entry into kibbutz life – no doubt status quo bias has some role to play– but he seems correct that such barriers are not particularly high. Would a move to the open society, then, not really appeal to individuals currently inhabiting a consumer capitalist society, or at least not to anyone who is not already living an alternative way of life? What exactly is it that people want to do that they cannot already do in present-day

America, beyond becoming even richer and consuming even more? After all, just because we can show that there is dissatisfaction within capitalist society, does not mean that people would actually prefer to live in a different kind of society, or that capitalist society prevents people from withdrawing and living a different kind of life.

The answer, I think, must be a matter of intellectual humility. Individuals do not really know if their current way of life is the best approximation of the conception of the best world unless there are other options to choose from, and these options are actually being tried out in the world rather than existing as theoretical entities. Kibbutzism is one particular form of non-capitalist life, one that we should not expect to appeal to everyone.

Indeed, the whole point of Nozick’s meta-utopia is to enable more experimentation with what people want, and therefore generate more appealing options for life than kibbutzism, which still operates on a more classical model of the sacrifice of the good life as most people conceive of it. This is not to say that kibbutzism is not appealing once one

200 takes up such a way of life, only that it still appears as a sacrifice to those currently ensconced in mainstream consumer society.

The problem is that even if the open society is the most likely form of society to generate new and appealing ways of life, we cannot assign a specific probability to such an outcome or an exact value to a new way of life. This is problematic given that the transition to the open society will force people to endure real costs, as any social transition does. The rules we have come to rely on to make decisions will change; even if the new rules are superior, there will be losses due to having made plans based on a now defunct set of rules. Of course, it may be the case that optimism bias will overcome this problem, but we are, for now, assuming that individuals are rational. How is a rational individual, then, to make a decision about whether to favor the open society or not, given that the open society is more likely to generate more appealing ways of life, but we are unable to assign specific probabilities or benefits to those outcomes?

One way to approach this question is to employ the idea of a minimax principle. In conditions of deep uncertainty, as Rawls points out, it can be rational to choose the option that maximizes the value of the worst possible outcome (Rawls 1999). In the present case, this would require ensuring that life in the meta-utopia is at least as good as life in our present society. If this is the case, then the increased probability of happening upon a better life in the meta-utopia will recommend it over our present society. Some of the institutions that would ensure that the meta-utopia operates effectively can contribute

201 here; things like public education and a universal basic income make trying out a different form of life less risky. However, funding the kind of social safety net that would render the meta-utopia no worse than our present society might take us from the more- than-minimal-state into a much-more-than-minimal state. Much will depend on how much taxation can be imposed on the population before costs become sacrifices, and I have no good answer as to where precisely this point is. Moreover, other aspects of the meta-utopia are likely to prove costly relative to our current society and will not be ameliorated by a more robust social safety net. Eliminating something like public accommodation law, for example, will expose people (especially minorities) to costs of prejudice and segregation that they do not currently face, and which something like a universal basic income does not fix.

1.4: Choosing the Ethical Good Life

It is helpful here to remember what it is that we are trying to discover, namely a way of dissolving the apparent dilemma between the good life and the ethical life. Thus, even if people do in fact value some of the choices that are enabled by the meta-utopia, we still have not achieved our initial goal. What is required, I suggest, is finding an alternative way of life that is not only appealing, but that also renders material things of less importance. We need a version of the good life that can appeal to people as they are, but which is not premised on material goods to the same degree as the average American life is today. There are two different ways we could approach this search process. On the one hand, we can try out different ways of life that seem likely to be ethical, and hope to 202 stumble upon one that also has the feature of being widely appealing – call this “the heuristic of ethicality.” On the other hand, we can try out different ways of life that seem appealing in terms of the good life, and hope to stumble upon one that also enables ethical behavior – call this “the heuristic of appeal.”94 This latter approach is exemplified by Nozick’s meta-utopia, in which people are motivated to find better approximations of their own best possible world. This may, at times, mean people are attempting to live ethical lives (Singer’s best possible world, for instance, no doubt aims at the ethical life), but this will not always, or even often, be the case. In considering which approach to take, we are presented with a trade-off. If we experiment with ethical ways of life in order to find an appealing one, we likely are limiting the amount of experimentation that will occur, either directly (as many people will not want to engage in such experiments for the same reason they currently do not give as much to charity as they think they should) or indirectly (as people will be unwilling to fund the subsidization of such experiments). If we instead experiment with appealing ways of life, there will be more experimentation, as by definition such ways of life are appealing, but fewer of these experiments will have results that enable the ethical life. We would then seem to be faced with an empirical question as to which, on balance, produces more knowledge about appealing ways of life that also enable ethical behavior. Is there any reason, in principle, to choose one approach over the other?

94 Of course, if we already have in mind a way of life that is both appealing and ethical, it should be tried first. The lack of an obvious candidate for such a way of life, however, makes it a less than helpful heuristic for deciding on which possible worlds to experiment with. 203

An initial answer might be that in employing the heuristic of appeal à la Nozick rather than the heuristic of ethicality, we are less likely to actually cause suffering via our search process. If anything is an unalloyed ethical bad, it is human suffering. We would therefore likely be undermining the ethical life if our actions actually lead to an increase in suffering. If people experiment with ethicality but find out that the way of life they are attempting is in fact not appealing, they might well experience suffering themselves, thus exacerbating the problem we are trying to solve. For example, a utopian community that fails spectacularly might end up causing enough suffering for its inhabitants that overall suffering increases rather than decreases. If we are experimenting using appeal as a heuristic, however, this seems less likely. Less likely, but not impossible – appeal and well-being are not the same thing, and do not always go hand in hand. One might find a way of life appealing but still suffer because of it; indeed, this is precisely the critique of neoliberalism that many make (Lane 2001). Furthermore, it is perfectly plausible that the appealing way of life one is experimenting with causes more suffering to others.

Nozick’s meta-utopia only limits coercion, which he defines in terms that require one to actively aim to limit someone else’s choice set.95 Thus, one could cause suffering without coercing anybody. Global climate change, for example, is not a matter of coercion on

Nozick’s terms, but we can certainly argue that it is caused by the (collective) behavior of individuals, and that different behavior would thereby produce less suffering. In short,

95 The formal definition is: (1) P aims to keep Q from choosing to perform action A; (2) P communicates a claim to Q; P’s claim indicates that if Q performs A, then P will bring about some consequence that would make Q’s A-ing less desirable to Q than Q’s not A-ing; P’s claim is credible to Q; Q does not do A; Part of Q’s reason for not doing A is to lessen the likelihood that P will bring about the consequence announced in (3) (Nozick 1969, 441–445). 204

Nozick’s meta-utopia is compatible with an increase in impersonally and unintentionally caused suffering.96 What, then, is appealing about it relative to experiments guided by the heuristic of ethicality?

We might point out that it is hard to imagine a more harmful way of life than the one that most people in a consumer society currently engage in, at least without going over into actual coercion. It is hard to imagine that the open society would give rise to more material consumption than we already see. And it is the patterns of consumption that people engage in, as well as the production of things to be consumed, that cause much of the non-coercive suffering in the world we currently inhabit.97 It is hard to imagine that individuals could somehow engage in more extreme exploitation of the Earth’s material resources than they already do, and therefore hard to imagine that the outcome of the open society would be an increase in non-coercively caused suffering.

96 Nozick seems to think that negative externalities will be compensated, as such externalities will affect other people’s property and therefore become a matter of state interest (1974, 280). However, this does not tell us how to deal with issues of collective responsibility like global climate change. Who is on the hook for paying compensation? Furthermore, how can we even prove that any particular event is the product of climate change? We know that the incidence of catastrophic weather is likely to increase, but this does not translate into knowing that any particular instance of catastrophic weather is the product of global warming. There may be room in Nozick, then, for dealing with negative externalities, but he does not provide us with the theoretical tools to do so. 97 This does account for coercive suffering, which is covered by Nozick’s account of meta-utopia. However, insofar as coercion can be caused non-coercively (i.e., the reasons for violence might themselves be the product of non-coercive actions), phenomena like war might qualify as a product of neoliberalism as well. So, for example, if a war is fought over scarce food resources, and the lack of food is itself caused by climate change, then we are justified in tracing the harm of the war (at least in part) to the non-coercive actions of those who are collectively causally responsible for climate change. 205

However, even if it is true that there is no more harmful way of life available than the one many of us already engage in, we might worry that the outcome of withdrawal from material consumerism would lead to more suffering because of a reduction in the size of the global economy. Within the open society, it is possible that such a large number of people find a non-consumer way of life appealing that the global engine of growth that is capitalism grinds to a halt. This seems empirically unlikely, given how proficient capitalist institutions are at appealing to consumers. It seems more likely that the open society opens up alternatives for a few individuals and groups whose efforts might bear fruit over the long term. But a slowdown of global growth is nonetheless something to take seriously, though we must subtract out the suffering caused by climate change and the other costs of such growth first. We might note here the ongoing wave of automation in the production of consumer goods and services (Carr 2015; West 2018; Frey 2019). To the degree that we can automate production, the withdrawal of individuals from the economy will have less impact. However, notions of a more fully automated society are still in their infancy, and we need to therefore be careful about employing automation as a solution to economic problems.98 As a general matter, we must perhaps rely on individuals in the meta-utopia to find an ethical reason to drive economic growth, even if they lose their interest in consumption as a matter of pursuing the material good life. That is, we should have to hope that enough people view growing society’s wealth as a part of an ethical life that they continue to pursue economic growth even when material gains are no longer as large a part of the good life.

98 For work in such a futurist vein, see Srnicek and Williams (2016) and Bastani (2019) 206

We still have not shown why the heuristic of appeal should be employed over the heuristic of ethicality. To understand the advantage of the heuristic of appeal, we first need to understand that the two heuristics are not actually in opposition. If what appeals to someone is the ethical life, then there is nothing stopping them from engaging in experiments that aim directly at ethicality. Therefore, the application of the heuristic of appeal in Nozick’s utopia may not actually see a reduction in the level of experimentation aimed at ethicality, unless current levels of such experimentation are a product not of voluntary choices but of government coercion. If the government supports experimentation that aims directly at ethicality using resources taken from individuals who do not wish to support such experiments, then it is possible that the amount of such experimentation would be reduced in the open society. However, given the paucity of current government spending for this purpose relative to people’s own claims about the proper levels of such spending, I find it hard to believe that we are actually in this situation. There are certainly contexts in which a reduction in government spending might reduce direct experimentation with ways of life that enable ethical behavior, but empirically speaking, it seems unlikely to be the case with the contemporary U.S. government. Support for experiments in ethicality seems more likely to come from the super-rich and those like Peter Singer than the government, at least at present.

If it is the case that we are already engaged in the most harmful way of life available short of coercing others, and the use of the heuristic of appeal does not undermine the

207 potential of using the heuristic of ethicality, then it seems that the use of the heuristic of appeal is reasonable. By using this heuristic, we add to those who are experimenting with ethicality directly all those people who are interesting in experimenting with more appealing ways of life. Because these more appealing ways of life are unlikely to cause more harm than our current way of life, they will not undermine the project of ethicality and may well come upon means of enabling ethicality as a positive externality of pursuing what is appealing.

Even if we think it makes more sense to focus on experimentation by the heuristic of appeal rather than ethicality, the question remains as to whether Nozick’s meta-utopia or a more centrally directed program of experimentalism is more effective in producing knowledge. However, this charge is easier to answer if we believe that the heuristic of appeal is likely to be more effective than the heuristic of ethicality, at least at the level of society as a whole. This essentially adds up to favoring Nozick’s meta-utopia, which is premised upon the heuristic of appeal. Once we accept the heuristic of appeal, it is difficult to resist Nozick’s argument – it seems quite clear that individuals do indeed have knowledge about what is and is not appealing to which the government will not have access (namely their own interior preferences), and that we are more likely to have effective experimentation using the heuristic of appeal if we enable individuals to do so, rather than employing some form of central planning.

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2: The Value of a More-than-Minimal-State

It is also reasonable that we should think that the value of realizing Nozick’s meta-utopia is not worth the costs of giving up government policies like public accommodation law or the Affordable Care Act.99 In short, we might think that the state should engage in coercion on moral grounds, rather than simply preventing coercion and only imposing costs in order to support the meta-utopia. The progressive history of the United States, insofar as there is such a thing, seems to revolve around such uses of the government’s coercive power. The Civil Rights movement is a case in point. Nozick’s meta-utopia essentially suggests that “separate but equal,” or even “separate and unequal,” is perfectly compatible with a just and legitimate polity, as long as a given voluntary association decides on such a rule. The story is complicated somewhat when it comes to public institutions like public schools or voting rights, but it is certainly the case that private businesses could be “whites only.” To point out that areas could also be “blacks only” would be to miss relevant facts about the distribution of power between whites and minorities; the same issue holds with regards to gender and sexual orientation. Nozick sees nothing necessarily wrong with these imbalances of power. His meager suggestion of the possibility of just reparations for past injustice hardly seems adequate to the problem, given that it is not just a matter of material resources but also the institutions

99 Even if we think Nozick’s meta-utopia is worth the costs ourselves, we might think that such a society is not a feasible option. In particular, for all its ideological power, neoliberalism has not managed to fully instantiate itself in American society. Piggy-backing on neoliberalism is not therefore some guarantee of feasibility, even if it is a way of rendering a given social project more feasible than it would be if it did not have any means of exploiting the current distribution of power in our society. Because we are interested in Nozick’s meta-utopia as a means of dissolving the dilemma between the ethical life and the good life, rather than as an end in and of itself, any problems with regard to feasibility may prove decisive. 209 governing both public and private society, not to mention the inequalities generated simply by being a member of a minority culture rather than the majority. We can identify two particular problems. First, there is the conception of freedom of association as incorporating a right of exclusion. Second, the pursuit of Nozick’s meta-utopia, even in light of the previous chapter’s arguments in favor of a more-than-minimal state, forces us to forgo the coercive state enforcement of universal moral rules.

2.1: Freedom of Association and the Freedom to Exclude

One area of concern here is the sort of freedom of association that Nozick’s meta-utopia embodies. Unlike Kukathas, Nozick does at least employ a universally applicable anti- coercion principle that all societies must follow and thereby excludes some of the more physical forms of oppression like beating one’s children or spouse. Nonetheless, there is still plenty of room in the meta-utopia for what we might describe as asocial or even unethical behavior. The meta-utopia seems incompatible, for example, with a universally applicable public accommodation law. One could refuse serve or lodging to anyone for any reason, including racism, sexism, or queerphobia. Of course, one also could refuse to serve or lodge anyone for being racist, sexist, or queerphobic – but it is easier to pretend to hold a different set of ideas than to present a different set of physical or behavioral characteristics. That is to say, it is easier to hide one’s racism than one’s skin color, easier to hide one’s sexism than one’s sex, and easier to hide queerphobia than one’s body or one’s romantic partner. Why should we give up already existing protections like a universally applicable public accommodation law in order to enable people to more easily 210 live racist, sexist, or queerphobic lives? The logic is a general one – our society has, in many ways, taken firm stands on various kinds of prejudice and discrimination, so why undo this progress to allow prejudice and discrimination more room to flourish? To be sure, actual violence is banned in Nozick’s meta-utopia, but why allow belief systems that can lead to violence, and which even when they are peaceful can seem to many people to be a form of oppression in and of themselves?

If our only interest is in justifying the open society on its own terms, we could perhaps point to some issue of regarding ethical beliefs, or to the role of tolerance in a society that respects individual conscience. This is, for example, the approach that

Kukathas takes in The Liberal Archipelago, and which leads him to accept the possibility of deeply illiberal communities within a liberal state. But we are trying to justify the open society to someone like Singer, who does not share this kind of foundational interest in fallibilism or tolerance or respect for persons. Why should someone like Singer, then, accept the contours of Nozick’s meta-utopia, when it seems to provide the necessary freedom to not behave ethically, to behave unethically, indeed, even to behaved less ethically than in our present society?

One answer is that by enabling discriminatory communities to exist, we can still gain from those areas of life in which such communities produce helpful results. That is to say, there is nothing about being racist that precludes a community from developing some interesting and productive way of life that can be separated from their racism and

211 deployed elsewhere. So, for instance, American and Soviet scientists were aided after

World War II by former high-ranking Nazis. Of course, this does not justify the horrors of the Holocaust and World War II – it is merely to point out that even one of the most evil communities in the history of humanity can produce helpful results in certain spheres. If we contain the violence of such groups, and only allow them to express their beliefs within their own communities, we likely can avoid the major social problems associated with prejudice and discrimination while still utilizing the helpful innovations such communities might produce.

The question, then, is whether allowing discrimination to exist (beyond the practical issue that it is hard to root out) enables the social contributions such communities might make if they are allowed to exist, and whether those benefits are likely to outweigh the costs of making such an allowance. In other words, does something like a public accommodation law actually hinder the operation of the open society in a way that makes the overall achievement of ethical behavior more difficult than it is in our present society?

Perhaps the contributions of “outlaw” communities can be increased, and their harms decreased, via the meta-utopia. We should expect, in such a society, that people who feel strongly about some ethically suspect way of life will tend to leave communities that do not enable them to live as they wish (after all, there is nothing saying that communities themselves cannot have something like a public accommodation law). When such individuals are allowed to gather together in their own communities, there are two

212 effects. First, they remove themselves from their prior communities, which should lower the random incidence of prejudice or discrimination within those communities. That is to say, if there are less racists spread through society at random, one can feel more confident that one’s own community does not contain them. Second, when racists or other ethically suspect individuals move to their own communities, they are less likely to be ostracized

(self or otherwise) and thereby to avoid participating in the development and maintenance of the community’s way of life. In the latter case, it is unlikely that the ethically suspect person will make much of a contribution to the ongoing experiment that each community represents. They will instead be something like hermits, feeling little attachment to their community and little interest in its communal life. However, communities of outlaws instead will promote the active participation of their members, and therefore are more likely to generate the kinds of innovations that other, non-outlaw communities might also find useful.

In short, there will be communities where certain kinds of people are not welcome in the open society, and there is nothing anyone can do to force those communities to change.

We will know where these communities are, and who is not welcome. They will only be part of our large society in the loosest sense. One does not have to do business with these communities, or visit them, or do more than (maybe) drive past them on the highway.

Such communities will concentrate ethically suspect individuals, thus leaving those individuals’ old communities less ethically suspect than before. But we will, nonetheless, have situations where (for example) a queer person is born in a community that does not

213 accept them, and forces them to leave when it becomes clear that they violate the rules of the community. This is not only lamentable. It is, I think, a good reason to be suspect of

Nozick’s meta-utopia. I am not therefore suggesting, as Nozick might and Kukathas certainly would, that if we could simply press a button and eliminate intolerance painlessly in people’s sleep, we should not push it (Kukathas 2003; Nozick 1974). But in the absence of such an option, the real choice is between a society in which intolerance is distributed throughout society, and may at times capture some (perhaps large) portion of the state’s power to do its bidding, or a society in which intolerance is concentrated in pockets, and therefore is less present in mainstream communities.100 I am uncertain as to which is preferable, isolated but more intensely radical communities or more evenly distributed and thereby less radical ones. I would note, however, that we seem to have the worst of both worlds in our present society: intolerance seems to be widely distributed and increasingly intense. It is at least worth considering that isolating such individuals may be better than our present situation, unpalatable as it may be relative to a currently

(perhaps perpetually) infeasible society of universal tolerance.

100 Of course, even mainstream communities are intolerant to some degree. But I am concerned here with forms of intolerance that the mainstream has decided are themselves intolerable. Forms of intolerance that the mainstream still accepts will be difficult to abolish, no matter what we do via government policy, without also engaging in a campaign of persuasion or undermining the legitimacy of the government by using coercive force on anti-majoritarian grounds. 214

2.2: Universal Rules

Another way the open society might fail to appeal to the desires of real people is that people are not only self-interested. In particular, people have preferences about the conduct of other people. Singer, for instance, does not think that it is simply a matter of personal taste whether or not one should give more to charity; it is, instead, a universally applicable ethical rule that should govern our behavior regardless of what we have to say about it. Of course, for Singer this does not justify coercively enforcing such a rule, but many others do not share his compunction. Furthermore, our problem here is less normative and more pragmatic – will individuals find the appeal of greater choice of lifestyle to be offset by the fact that lifestyles that they find abhorrent are also available as a choice? For example, will adherents of a pro-life or pro-choice view be willing to accept that they cannot universally enforce that view? In the current, centralized regulatory state, there is at least the possibility of universal enforcement. In the decentralized, open society, such an option is taken off the table, excepting the universal enforcement of anti-coercive measures.

We should note that individuals are not precluded in Nozick’s meta-utopia from attempting to persuade others to their own point of view. Nor is anyone forced into interacting with those they find to be ethically objectionable. In this way, Nozick’s meta- utopia does not foreclose the possibility of anyone’s particular vision of ethical progress.

The only issue is when we come to coercive measures. In the United States, for example, gay marriage and immigration are issues of ethical controversy, and the state coercively 215 enforces a particular position on them.101 No sub-state actor can ban gay marriage or have their own immigration policy vis-à-vis people from other states. In the open society, by contrast, these sorts of laws would reflect an overreach by the state into affairs that should be governed by sub-state associations.102 The choice, then, is between universal or local law governing issues of ethical controversy. But most individuals do not see their own position in ethical controversies in detached or self-reflective terms; they believe that they are right and that the other side is wrong. This viewpoint suggests that universal application is the only acceptable outcome – pockets of non-believers should not be allowed to continue to behave unethically. Much of the time, we cannot do anything to act on this idea, as the exigencies of political power prevent universalizing our individual ethical codes. But as gun ownership and gay marriage show, this is not always the case.

Sometimes, we can successfully universalize our ethical preferences. Why should we accept a state in which this opportunity never arises except via the (im)possibility of universal persuasion?

There are pragmatic reasons why we might prefer the meta-utopia to government by a much-more-than-minimal state. One is that for any particular side in the “culture wars,”

101 I do not mention abortion here for a specific reason: both pro-choice and pro-life advocates see abortion as precisely an issue of coercion. Either mothers are coerced into carrying a child to term, or the fetusitself is coerced via abortion. This kind of political disagreement still requires universal resolution in Nozick’s meta-utopia, because it concerns coercion, and the one universal rule of the meta-utopia is that no one shall be coerced. In this way, abortion provides a good example of Nozick’s argument that politics will not disappear in the meta-utopia, despite the fact that the state seems like it regulates very few aspects of life. 102 Regarding marriage, the state simply should not be involved in marrying people. Regarding immigration, see Carens (1987) for an argument as to why a libertarian like Nozick should support open state borders. 216 victory seems as probable as defeat. This is especially true over time, as the victories of one side generate a backlash, as we are seeing now with abortion. It is not the case, then, that a particular ethical principle is permanently achieved once its universal applicability has been established under law. Gun ownership may seem more secure due to its status as a constitutional amendment, but we should note that the reinterpretation of the 2nd amendment is hardly impossible, and probably a more likely route in the long term to gun control than an actual constitutional amendment. Regardless, we often will be faced with a choice of see-sawing between different universally applicable laws or having more robust laws within our various sub-state associations that are not universally applicable.

And there is no guarantee those universal laws that are more robust will be ones that we favor. All that being said, even those who favor universal rules may find about as much to gain from moving to a system of local rules as they stand to lose, and those who are not in favor of coercive universal rules (beyond non-coercion) will find the local system much preferable.

Another practical point to make is that one’s ideals likely will be achieved more intensely under a system of local rules rather than universal ones. Universal rules always will face at least some level of dissent when they are applied in a society with tens or hundreds of millions of people, but the same is not necessarily true of smaller communities.

Furthermore, actually passing universal laws usually will require compromise, especially when the rules are the product of legislation rather than judicial decisions. Thus, the

Affordable Care Act does not really exhibit the virtues of a universal healthcare system,

217 because it was the product of extensive political compromise. If we really believe in the universal applicability of socialized medicine, we might think that there is a greater possibility of fully achieving that goal if it is intensely implemented in certain localities, so that its true benefits and costs can be perceived by other localities and (if it is as appealing as its proponents say) taken up by them. Once we are cognizant of this dimension of the intensity of realization, we can see that even universally applicable rules might be better achieved through local rules and persuasion, rather than compromised universal rules that are imposed on dissenters.

Furthermore, it is important to note that the geographic size of groups in the meta-utopia will have a large effect on the impact of local rules on life. If the relevant groups are the size of, say, American states, then local rules may well create major hardships. Even if we ignore the transaction costs of movement, switching groups would then require one to move far away from one’s family and friends. But if groups are smaller than this – and there is no reason to think that this will not be the case, given the way major cultural divisions in the United States play out geographically – movement may be more along the lines of going from a rural area to the nearest city, or vice versa. This reduces the cost of exit quite drastically relative as compared to state-sized communities, as a person who has left a given community will have a shorter and less costly trip to return for a visit.

This, of course, depends on the possibility of return.

218

The rules governing return to a community once someone has left it for another way of life will therefore be of some importance in determining the costs of exit. For instance, one might leave a community that bans guns for one that allows them, but this need not mean that the person in question cannot return to their old community to visit their friends and family. Similarly, one might leave a community that does not recognize gay marriage (or even any marriage at all) for one that does, (or vice versa) but unless the prior community actually bans gay people or people with some other identity completely, a person who has left may still return. In general, the costs of exit, and therefore of local rule, will depend to a large degree on whether return (temporary or permanent) is possible. The easier it is to return, the less problematic local rules are relative to universal rules, as there is little cost to leaving one place in order to find a set of rules that fit one’s personal preferences. Fewer people, in other words, will be “stuck” in a place that does not reflect their desired way of life as the ability to return becomes easier.

3: Conclusion

Although I have done my best to defend Nozick’s meta-utopia from critique in this chapter, I have admitted throughout that I find many critiques of the meta-utopia to be both serious and convincing. Especially if we consider more than just the problem of living an ethical life (as important a problem as it is), I think it is difficult to maintain that the meta-utopia should be fully realized throughout all of society. The logic of the meta- utopia non-withstanding, I am not willing to give up policies like public accommodations that interfere with the meta-utopia. Nor am I willing to forego the pursuit of future 219 coercive state action along these lines, even though this opens up the field of play to reactionary or antisocial elements as much as progressive and humanitarian ones. I am, perhaps, excessively Whiggish in this regard. However, as I have noted above, this still leaves open the possibility that we can instantiate the meta-utopia within a more limited sphere. The general features of the meta-utopia – its appeal to individual interest in the good life, and its enablement of individual mobility within a society of voluntary associations via rights of exit and founding – can exist within bounds, rather than covering society as a whole, and thereby still enable a greater ability to live an ethical good life than our current society does.

If I have been at all successful in this project, we will have gone at least some ways toward achieving Singer’s goal of a world where the good life and the ethical life are one and the same. I therefore close with his call to action:

We have to take the first step. We must reinstate the idea of living an ethical

life as a realistic and viable alternative to the present dominance of material

self-interest. If a critical mass of people with new priorities were to emerge,

and if these people were seen to do well, in every sense of the term – if their

cooperation with each other brings reciprocal benefits, if they find joy and

fulfillment in their lives – then the ethical attitude will spread, and the

conflict between ethics and self-interest will have been shown to be

overcome, not by abstract reasoning alone, but by adopting the ethical life

220 as a practical way of living and showing that it works, psychologically, socially, and ecologically (Singer 2000, 272).

221

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