Robert Nozick’s Anarchy, State, and Utopia (1974) is the most important scholarly work of libertarian philosophy. Published just three years after John Rawls’s A Theory of Justice, it appeared at an opportune political moment. It immediately became the most prominent foil to Rawls, who was widely understood to offer a social contract theory that justified a redistributive welfare state. Nozick’s book is beautifully written and fun to read. (A lot more fun than Rawls’s dry-as-dust prose.) Its style is exciting and digressive, constantly darting off on interesting tangents. Nozick must have been marvelous in the classroom.
It is not generally understood how much Nozick owes to a far lesser-known thinker, Murray Rothbard. Tracing that connection, and particularly Nozick’s attempted deployment of Kant to shore up the holes in Rothbard’s philosophy, reveals that Anarchy, State, and Utopia is massively overrated, its claims unsalvageable.
Nozick was a social democrat when he began graduate study in philosophy at Princeton in 1959. A fellow student introduced him to libertarianism, and one evening brought him to one of the many discussion sessions in Rothbard’s Manhattan apartment.[i] The encounter made a huge impression, and continued to shape Nozick’s work after he joined the Harvard philosophy department.
The core moral principle upon which Rothbard founds his philosophy is nonaggression: “no man or group of men may aggress against the person or property of anyone else.”[ii] If one combines this with a right to private property, one can logically infer “the right of free exchange and free contract . . . the right of bequest, and . . . the entire property rights structure of the market economy.”[iii]
The nonaggression principle entails anarchy. States use force to impose taxes. The use of force to seize property is barred by the principle. It’s that simple. “Taxation is Robbery.”[iv]
Why believe in the principle? Rothbard posits that “each man may only live and prosper as he exercises his natural freedom of choice, adopts values, learns how to achieve them, etc.”[v] (This is not universally true; some people are coddled by others all their lives and like it.) From this he infers that “if someone aggresses against him to change his freely-selected course, this violates his nature; it violates the way he must function.”[vi]
That doesn’t sound nice, but it’s not clear why it would be categorically wrong. My natural freedom of choice is blocked when I’m not allowed to drive through a red light, but coercive enforcement of traffic laws might, on the whole, facilitate my capacity to live as I like. Coercion always needs justification, but that doesn’t mean that the justification will never be forthcoming. Rothbard has a few other justifications for the nonaggression principle, but they are no better.[vii]
Anarchy, State, and Utopia is in large part an attempt to stipulate Rothbard’s premises and then avoid his anarchistic conclusions, by showing how a (minimal!) state can be justified on Rothbard’s terms. It is best read as an extended footnote to Rothbard. As such, it is a complex, fascinating flop. Nozick’s argument fails on multiple levels: it does not rehabilitate the inadequately defended nonaggression principle, it does not refute the anarchist inference from that principle, and (as we saw in Chapter Two) it does not justify its conception of property.
Nozick evidently saw the problem with Rothbard’s efforts to justify the nonaggression principle, because he started from scratch with an entirely different foundation. He proposed to base the principle on Immanuel Kant’s dictum that people should always be treated as ends in themselves, never as mere means. From the Kantian premise that “there are different individuals with separate lives and so no one may be sacrificed for others,” Nozick infers a “constraint that prohibits aggression against another.”[viii]
Paraphrasing Rothbard without attribution, Nozick addresses the hypothesis that taxation, even to support minimal police protection, arguably violates rights: “when the state threatens someone with punishment if he does not contribute to the protection of another, it violates (and its officials violate) his rights.”[ix] Taxation, Nozick thinks, is a kind of forced labor, compelling citizens to work for the state.
Thus far, as in Rothbard, the implication appears to be anarchism. Nozick, however, thinks that he can show that a legitimate state could arise without violating anyone’s rights.
Recall that Rothbard thinks that in conditions of anarchy, people would voluntarily form mutual protection associations that guard the members’ persons and property. Nozick proposes that a state could evolve out of this world of protective associations. He doesn’t try to defend Rothbard’s optimism about anarchy. Instead, he aims to show that Rothbard’s world leads to a minimal state:
If one could show that the state would be superior even to this most favored situation of anarchy, the best that realistically can be hoped for, or would arise by a process involving no morally impermissible steps or would be an improvement if it arose, this would provide a rationale for the state’s existence; it would justify the state.[x]
To summarize a complex set of steps very briefly, one of those associations is likely to eventually dominate the others, because people will rationally flock to the biggest and most powerful such association. That association however cannot guarantee its members the promised security if there are some hard-to-identify nonmembers interspersed among the population. Thus it must forcibly bring them into the association, but must compensate them by providing them with protection as well.
Protection is, however, all that the state is authorized to provide. It “may not use its coercive apparatus for the purpose of getting some citizens to aid others.”[xi] Redistribution, even to prevent starvation, is categorically prohibited.
Rothbard promptly responded. Nozick, he observed, did not deny that compelling people to join the state and pay taxes violates the nonaggression principle. Compensation does not make this acceptable. Violations of rights are not excused when the transgressor is willing to pay for his fun. (Rothbard’s response is structurally identical to the Republican complaint against Obamacare – you can’t force someone to buy an unwanted product – but it was better reasoned than that complaint, because it was a sound inference from the nonaggression principle. That principle is obviously not part of the U.S. Constitution, which was enacted to prevent rather than to produce anarchy.[xii]) So Nozick has not refuted Rothbard’s claim that the nonaggression principle entails anarchism. Anyway, absent a market to set prices, there is no way to determine what the compensation for nonmembers should be.[xiii] There are many criticisms of Nozick, but this most devastating one is not well known, because political philosophers are unfamiliar with Rothbard and tend not to see how much Nozick depends on Rothbard’s implausible premises, or how unpersuasive are his inferences from those premises.
A deeper problem, if libertarianism relies on a Kantian foundation, is that Kant’s moral theory doesn’t support the nonaggression principle or anarchism. Nozick is hardly the first philosopher to try to work out a Kantian political philosophy. Someone else got there first. His name was Immanuel Kant. Kant reached the opposite conclusion: it was anarchy that failed to treat people with dignity.
Kant was a social contract theorist. Unlike Locke, however, he did not think that the social contract was based on the interests of the contractors. It was based on their moral duties. Kant’s core commitment is that people have an obligation to treat one another with respect – as ends in themselves rather than as mere means. Kant thought that this is impossible in conditions of anarchy. If I claim any rights that can coercively be enforced, I have to point to some shared source of authority.
Even if I succeed in enforcing my rights, unless there is some source of law outside my own will, this is mere brute force. If I’m going to claim a right, then I’ve already assumed that people can have rights – that it’s possible for others to have rights against me. Christine Korsgaard explains: “It is a duty of justice to live in political society. That is to say, others have the right to require this of you, because that is the form that their authority to enforce their own rights takes.”[xiv] If rights are going to be enforceable, then there must be some authority with the competence to enforce them. “[J]ustice, which is the condition in which we have guaranteed one another our rights, exists only where there is government.”[xv] People in a state of anarchy thus have an obligation to form a government and thereby bring themselves under the sway of law.
There are, of course, many unjust governments. Kant agreed with Rothbard about that. But Kant thought that since no perfectly just government is possible, we have an obligation to treat existing governments as though they were legitimate. (Kantians have since pointed out that this won’t justify obedience to a state that attacks the very idea of human dignity, as Nazi Germany or antebellum slaveholding America did.) Similarly with property claims. Respectful relations are impossible unless people have secure property titles. Therefore, absent convincing evidence to the contrary, we should treat what people have now as their property. The precise contours of property rights – and the appropriate level and objects of taxation – are appropriately left to the state to determine. So the state is entitled to the aggressive behaviors that trouble Rothbard, such as the coercive collection of taxes.
The state does not, however, have unlimited discretion to craft property rights in any way it likes. Certain arrangements are barred by the logic of Kantian respect. One of the prohibited specifications is the absolute property rights that Nozick advocates, because they jeopardize the liberty that property rights are supposed to protect. It is impermissible for the state to create a system of property rights that leave some people utterly at the mercy of the will of others for their survival. One could not consent to such relations of domination, any more than one could consent to slavery. Property exists for the sake of liberty. Liberty does not exist for the sake of property.
Kant thus thought that government is “authorized to constrain the wealthy to provide the means of sustenance to those who are unable to provide for even their most necessary natural needs.”[xvi] Kant does what Nozick thinks cannot be done: he can “accept the strongly put root idea about the separateness of individuals and yet claim that initiating aggression [by collecting taxes] is compatible with this root idea.”[xvii] If one wants a more detailed account of what kinds of property rights are just, then one must consider what terms of social cooperation would be agreed to under fair bargaining conditions. That means that the least well off must have a reason to embrace the property relations that result. It takes us where Nozick doesn’t want to go, and where libertarians hate to go: back to Rawls.
***From BURNING DOWN THE HOUSE: How Libertarian Philosophy Was Corrupted by Delusion and Greed by Andrew Koppelman. Copyright © 2022 by the author and reprinted with permission of St. Martin’s Publishing Group.***
[ii] Murray Rothbard, For a New Liberty: The Libertarian Manifesto 27 (rev. ed. 1978).
[iii] An Austrian Perspective on the History of Economic Thought: Economic Thought Before Adam Smith, vol. 1, 317 (1995).
[iv] For a New Liberty, 25.
[v] Murray Rothbard, The Ethics of Liberty 46 (NYU Press 1998).
[vi] Id., 46-47.
[vii] See my Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed 114-19 (2022).
[viii] Robert Nozick, Anarchy, State, and Utopia 33 (1974).
[ix] Id., 52.
[x] Id., 5.
[xi] Id., ix.
[xii] Rothbard was right, from the standpoint of his anarchism, to regret the ratification of the Constitution. See my The Tough Luck Constitution and the Assault on Health Care Reform (2013).
[xiii] Rothbard, Ethics of Liberty, 231-53.
[xiv] Christine M. Korsgaard, Taking the Law Into Our Own Hands: Kant on the Right to Revolution, in Reclaiming the History of Ethics: Essays for John Rawls 303 (Andrews Reath et al. eds., 1997). Kant’s view is elaborated in Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy 267-86 (2009).
[xv] Korsgaard, Taking the Law, 303.
[xvi] Immanuel Kant, The Metaphysics of Morals, in Practical Philosophy 468 (Mary J. Gregor ed. 1996).
[xvii] Anarchy, State, and Utopia, 34.