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Robert Nozick and the Immaculate Conception of the State*

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Robert Nozick and the Immaculate Conception of the State* ROBERT NOZICK AND THE IMMACULATE CONCEPTION OF THE STATE* MURRAY N. ROTHBARD Deparmenr of Social Sciences, Polylechnic Imlitute of New York Robert Nozick's Anarchy, State, and Utopia Common Sense, on the origin of kings and of (New York: Basic Books, 1974) is an "invisible the State: hand" variant of a Lockean contractarian "could we take off the dark covermg of antiquity and attempt to justify the State, or at least a minimal trace them to their first rise, we should find the first of State confined to the functions of protection. them nothing better than the principal ruffian of some restless gang; whose savage manners or preeminence Beginning with a free-market anarchist state of in subtilty obtained him the title of chief among nature, Nozick portrays the State as emerging, plunderas; and who by inaeasing in power and extending by an invisible hand process that violates no his depredations, overawed the quiet and defenceless to purchase their safety by frequent contributions""' one's rights, first as a dominant protective agency, then to an "ultra-minimal state," and Note that the "contract" involved in Paine's then finally to a minimal state. account was of the nature of a coerced "protec- Before embarking on a detailed critique of tion racket" rather than anything recognizable the various Nozickian stages, let us consider to the libertarian as a voluntary agreement. several grave fallacies in Nozick's conception Since Nozick's justification of existing States- itself, each of which would in itself be sufficient provided they are or become minimal - rests to refute his attempt to justify the State. on their alleged immaculate conception, and First, despite Nozick's attempt (6-9) to cover since no such State exists, then none of them his tracks, it is highly relevant to see whether can be justified, even if they should later become Nozick's ingenious logical construction has ever minimal.To go further, we can say that, at kt, indeed occurred in historical reality: namely, Nozick's model can only justify a State which whether any State, or most or all States, have indeed did develop by his invisible hand method. in fact evolved in the Nozickian manner. It is a Therefore it is incumbent upon Nozick to join grave defect in itself, when discussing an anarchists in calling for the abolition of all institution all too well grounded in historical existing States, and then to sit back and wait for reality that Nozick has failed to make a single his alleged invisible hand to operate. The only mention or reference to the history of actual minimal State, then, which Nozick at best can States. In fact, there is no evidence whatsoever justify is one that will develop out of a future that any State was founded or developed in the anarcho-capitalist society. Nozickian manner. On the contrary, the Secondly, even if an existing State had been historical evidence cuts precisely the other way: immaculately conceived, this would still not for every State where the facts are available justify its present existence. A basic fallacy is originated by a process of violence, conquest endemic to all social contract theories of the and exploitation: in short, in a manner which State, namely, that any contract based on a Nozick himself would have to admit violated promise is binding and enforceable. If, then, individual rights. As Thomas Paine wrote in everyone -in itself of course a heroic assump- tion - in a state of nature surrendered all or 'The origin* version of this paper was delivered at the Third some of his rights to a State, the social contract Libertarian Scholars Conference, October 1975. New York City. A condensed version was presented at the Annual theorists consider this promise to be binding Meeting of the Western Economic Association, June forevermore. A correct theory of contracts, 1976, at San Francisco. however, termed by Williamson Evers the "title- 46 MURRAY N. ROTHBARD transfer" theory, states that the only valid (and "attempts in good faith to act within the limits therefore binding) contract is one that surrend- of Locke's law of nature" (17). ers what is, in fact, philosophically alienable, First, Nozick assumes that each protective and that only specific titles to property are so agency would require that each of its clients alienable, so that their ownership can be ceded renounce the right of private retaiiation to someone else. While, on the contrary, other against aggression, by refusing to protect them attributes of man: specifically, his self-ownership against counter-retaliation. (15) Perhaps, perhaps over his own will and body, and the rights to not. This would be up to the various protection person and property which stem from that self- agencies, acting on the market, and is certainly ownership, are "inalienable" and therefore not self-evident. It is certainly possible if not cannot be surrendered in a binding contract. If probable that they would be outcompeted by no one, then, can surrender his own will, his other agencies that do not restrict their clients body, or his rights in an enforceable contract, in that way. a fortiori he cannot surrender the persons or the Nozick then proceeds to discuss disputes rights of his posterity. This is what the Founding between clients of different protection agencies. Fathers meant by the concept of rights as being He offers three scenarios, on how they might "inalienable", or, as George Mason expressed proceed. But two of these scenarios (and part of it in his Virginia Declaration of Rights: the third) involve physical battles between the "...all men are by nature equally free and independent, agencies. In the first place, these scenarios and have certain inherent natural rights, of which contradict Nozick's own assumption of good- when they enter into a state of society, they cannot, by faith, non-aggressive behavior by each of his any compact, deprive or divest their posterity""'. agencies, since, in any combat, clearly at least Or, as Evers writes, "all philosophical defenses one of the agencies would be committing of human rights to life, liberty, and estates ... aggression. Furthermore, economically, it would are founded upon the natural fact that each be absurd to expect that the protective agencies human is the proprietor of his own will. To would battle each other physically; such take rights like those of property and contrac- warfare would alienate clients and be highly tual freedom that are based on a foundation of expensive to boot. It is absurd to think that, on the absolute self-ownership of the will and then the market, protective agencies would fail to to use those derived rights to destroy their own agree in advance on private appeals courts or foundation is philosophically invalid""'. arbitrators whom they would turn to, in order Thus, we have seen (1) that no existing State to resolve any dispute. Indeed, a vital part of the has been immaculately conceived - quite the protective or judicial service which a private contrary; (2) that therefore the only minimal agency or court would offer to its clients would State that could possibly be justified is one that be that it had agreements to turn disputes over would emerge after a free-market anarchist world to a certain appeals court or a certain abritrator had been established; (3) that therefore Nozick, or group of arbitrators. on his own grounds, should become an anarchist Let us turn then to Nozick's crucial scenario and then wait for the Nozickian invisible hand 3, in which he writes that "the two agencies ... to operate afterward, and finally (4) that even if agree to resolve peacefully those cases about any State had been founded immaculately, the which they reach differing judgments. They fallacies of social contract theory would mean agree to set up, and abide by the decisions of, that no present State, even a minimal one, wuld some third judge or court to which they can be justified. turn when their respective judgments differ. Let us now proceed to examine the Nozickian (Or they might establish rules determining stages, particularly the alleged necessity as well which agency has jurisdiction under which as the morality of the ways in which the various circumstances.)" (16) So f?r so good. But then stages develop out of the preceding ones. Nozick comes a giant leap: "Thus emerges a system of begins by assuming that each anarchist protective appeals courts and agreed upon rules ...Though agency acts morally and non-aggressively, that is, different agencies operate, there is one unified , , ROBERT NOZICK AND THE IMMACULATE CONCEPTION OF THE STATE 47 federal judicial system of which they are all why? Nozick is here making statements about components." 1 submit that the "thus" is the economics of a protection market which are totally illegitimate, and that the rest is a non totally unsupported. Why is there such an sequitur. The fact that every protective agency "economy of scale" in the protection business will have agreements with every other to submit that Nozick feels will lead inevitably to a near- disputes to particular appeals courts or arbitra- natural monopoly in each geographical area? tors does not imply "one unified federal judicial This is scarcely self-evident. On the contrary, all system". On the contrary, there may well be, the facts - and here the empirical facts of and probably would be, hundreds, even contemporary and past history are again directly thousands, of arbitrators or appeals judges who relevant - cut precisely the other way. There would be selected, and there is no need to con- are, as was mentioned above, tens of thousands sider them part of one "judicial system." There of professional arbitrators in the U.S.; there are is no need, for example, to envision or to also tens of thousands of lawyers and judges, establish one unified Supreme Court to decide and a large number of private protection upon disputes.
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