A Quick Argument against Nozick

Nozick argues against the legitimacy of a state on the basis of his rejection of two principles; the first regarding enforceability and the second fairness. We shall argue that his challenge to the principle of enforceability is ineffective.

We begin by noting that the argument against the principle of enforceability is itself a critique of Hart’s argument for the existence of a natural right. We start by reconstructing Hart’s reasoning as it appears in Nozick’s Anarchy, State and Utopia.

Hart’s Argument from Intelligibility

Consider the principle:

For all particular obligations owed, the debtor may be forced by their creditor to fulfill said obligation.

Hart asks us to note that the very idea of a particular obligation is only intelligible against a background assumption that other people may not in general force us to fulfill the debts they imagine us to hold. Since particular obligations are intelligible and do serve a point, there must be such an operative background assumption that our individual freedoms cannot be justly restricted by force of another. In other words, you are already obligated not to force me to perform any particular act; that’s why my promise to you is significant. This reasoning underwrites the claim that we all have a natural right to be free from interference of others.

The Argument(s) against Hart

Objection: The picture painted in this description of how obligations work entails that since the general obligation of non-interference holds, I can also, by means of special permission, release you from this obligation with respect to myself, thereby (it would seem) become your willing slave.  Nozick objects, that this is simply false. Even if I were to release you from your obligation of non-interference, it would not follow that I was in turn obliged to comply with your directions which I am performing. I may perform them under duress. While you would be free to instruct and force me to behave at your whim, I need not confess to any feeling of obligation to perform as directed. Hence there must be something more to the creation of an obligation than granting permission of enforcement.

Response: The objection is good as far as it goes, however it does not go to the heart of issue. Even supposing there was an extra component to generating a sense of obligation, we need not suspect that such a component makes a functional difference in the structure of the societal relations, and hence the questions of enforcement. For instance if the particular psychology of a “genuine” debtor is the missing component for the generation of a sense of obligation, then whatever psychological quirks you require to achieve such a state are irrelevant to Hart’s argument. We still have a functional characterization of how obligations work in society. The fact that the intuitive notion seems to have been inadequately captured need not damage the argument – the issues turn entirely on how you define the “extra” component. With no proposal forthcoming Hart’s argument remains sound as it stands,  and arguably consistent with any candidate proposal.

Objection: The “puzzle case” of redundant permissions. If I promise not to murder your sister, then (by Hart’s picture) you have the permission to force me not to.However, I have not given you this right – you already possessed it!

Response: This is not a real problem. Analogously if I lecture a dentist about the importance of brushing their teeth, I have not imparted any new information; i have simply committed a social faux pas and transgressed some Gricean maxims. The oddity of promising not to murder your sister stems from the fact that I am presumed to already be obligated not seek the murder of another. This is only a problem of etiquette, not definition.

Similarly the issue of promises with forgiveness clauses does not invalidate the picture of obligations which Hart has elaborated. If I promise to do A, and have asked that you not force me to do A, I have either (i) not made a promise by definition or (ii) shown that their are shades of sincerity to any promise. An obligation inducing promise does not come with a forgiveness clause. Nothing about the possibility of such a tentative promise presents an issue to the general picture, or the argument for the presumption of non-interference.

Objection:  Hart argues that the intelligibility of particular obligations stems from the presumption of non-interference, hence we should conclude that there is a natural law of non-interference and so a general obligation to behave accordingly.  Nozick responds that if the intelligibility of particular obligations stems from the background  presumption of non-interference, then (equally) the intelligibility of general obligations stems from a background presumption of permitted interference. These two claims suggest a tension at best and a flat contradiction at worst since both particular obligations and general rights are surely intelligible. So there must a contrasting unfixed background against which rights are instituted at whim depending only on dynamic presumptions – hence there is no obligation on anyone to do anything when we live under the presumption “in which there is no obligation on people to refrain from forcing you to do, or not do things.”

Response: The issue is resolved if we consider the time at which both particular obligations and general rights are instituted. On the one hand, a particular obligation may be instituted at any point; even in the state of nature where the presumption of non-interference (with respect to myself) may be live despite it’s naivety. Strictly speaking at this point, there is no general obligations at all. The institution of a particular obligation is always given by one individual to another. On the other hand, the institution of general rights cannot be given by an individual, rather they are bestowed by a state on its citizens – the primary obligation of a state to its citizens is to bestow each with the right of non-interference. It’s presumption is now factive, whereas in the state of nature it was simply naive. General obligations are intelligible as soon as the state is intelligible. The institution of the right of non-interference makes the poignance of a particular obligations no less remarkable than in the state of nature. But observe that a state can continue to bestow general rights on its citizens after the initial establishment of the right of non-interference. This falsifies the latter claim that the intelligibility of general rights implies the presumption of interference, and so resolves the tension.

More formally, this argument can be seen to be defective from the beginning. Is Nozick entitled to the claim that one can equally well argue from (i) the intelligibility of particular obligations to the presumption of non-interference to (ii) that the intelligibility of general obligations implies a presumption of interference? To say something is intelligible is minimally to say that it would be (epistemically) possible to believe, and a presumption is simply a belief. So construed (i) can be modeled on a Hintikka (epistemically) possible worlds semantics as: Allow, just for the sake of argument, that the notions of particular obligation and general obligation are dual, so that we can represent (ii) as: Taking the standard semantics:

we can ask if (i) holds must (ii) hold also? The answer no. Let (i) hold because there is a epistemically possible state z such that it’s intelligible that and it is believable that because it’s also true that . Must (ii) hold? No, grant the antecedent, then there is a epistemically possible state z* in which it is intelligible that , but it’s not necessarily true that z* is maximally plausible or that is true on any maximally plausible world. Informally, we demonstrated this above by the example of future general rights instituted by the state in a time of stability where the presumption of non-interference is active. The conceptual integrity of (i) is a much better claim, since as we argued above the belief (perhaps naive belief) of (local) non-interference is rendered extremely plausible under any circumstance where you envision the point (intelligibility) of making a promise. So on almost any faithful model of this reasoning (i) is close to an analytic truth, whereas (ii) is simply false. Although to demonstrate this precisely, we would have to unpack the structure of respectively.

Nozick’s Argument against Principles of Enforcement:

Nozick argues that:

An argument for enforceable obligation has two stages: the first leads to the existence of the obligation, the second to it’s enforceability. (pg 93, ASU)

and he claims to have disposed of the second since he’s shown that on Hart’s picture no obligations can exist against a shifting background. Hence if they don’t exist, they’re certainly not enforceable. In response we have argued that his discussion of Hart’s notion of obligation is misguided as it does not distinguish between the institution of particular obligations and general rights. Appropriate attention to the latter shows that there is no tension with the idea that obligations can exist between both individuals and a state and its citizens. The institution of obligations is time sensitive, but their existence is not in doubt – and this is no surprise to anyone who has ever missed an appointment.

Our argument leaves Hart’s claim about a natural right of non-interference a little damaged in so far as we concede that no such global presumption need hold in the state of nature, however we have also shown that Nozick’s case against principles of enforceability is incredibly weak. We might think to argue for Hart’s claim to have discovered a natural right which must (inevitably) be boot-strapped into existence by the inescapable presumption of “local” principles of non-interference for increasingly large clusters of individuals who (a) grant the principle with respect to themselves, and (b) come to grant it about others in their expanding sphere on pain of paranoia and angst.