Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

Vol. 9, No. 2; Summer 2003

Freedom or Slavery

On Nozick. By Edward Feser. Thomson-Wadsworth, 2003. 95 pgs.

Almost all academics, unless libertarians themselves, associate libertarianism with one person: the philosopher Robert Nozick. What better way, then, to arouse interest among students of ethics and political thought in this way of thinking, than to provide a forceful defense of Nozick's brand of libertarianism? Edward Feser uses his considerable abilities of exposition and argument to accomplish exactly this task.

Feser emphasizes a vital fact, which plays a key role in the thought not only of Nozick but also of Murray Rothbard. Once one considers the matter, it seems obvious that each person owns his or her own body: to deny self-ownership is to justify slavery. "It is almost universally acknowledged nowadays that slavery is a very great evil. But why is it, exactly? It cannot be for the reason that slaves are often treated badly. For slaves are sometimes treated very well by their masters. . . yet surely, it is still seriously wrong for even a 'kindhearted' master to keep a slave .The only way to explain why this is so is that in making someone a slave, a slave owner simply violates the slave's property rights in himself. No one else can properly own you, because you already own yourself."(p. 33)

Feser has conveyed the force of self-ownership very well; and as we shall soon see, the principle leads to radical results. But at one point I think that our author has not correctly stated Nozick's view. As he rightly says, some libertarian philosophers have not been satisfied with an appeal to the intuitive force of self-ownership. They seek to imbed this basic libertarian principle within a larger philosophical framework, often of an Aristotelian sort.

For Feser, these attempts are fully Nozickian in spirit, although he readily acknowledges that Nozick did not himself pursue this path. "Though Nozick himself does not give a specifically Aristotelian defense of his position, there are aspects of his work that suggest that such a defense harmonizes well with it."(p.50) Feser points in support to the fact that Nozick thinks that an individual cannot lead a flourishing life unless others respect his rights.

True enough, but it does not follow from the fact that others must respect your rights, if you are to flourish, that you have an obligation to respect their rights. You may well have such an obligation, but more than an appeal to the conditions of your own flourishing is needed to show this. So, at any rate, Nozick maintained; and in his article "On the Randian Argument" he rejected the Aristotelian defense, not just "the specifically Randian approach to defending natural rights."(p.50. The discussion of "ethical pull" and "ethical push" in Philosophical Explanations is of great relevance here.) I venture to suggest that Feser has been misled by his own sympathy for the Aristotelian position. His sympathy is well placed, but the view is not Nozick's.

But philosophical niceties must not distract us. Once given self-ownership, robust rights of property soon follow. If you own yourself, do you not acquire the right to acquire unowned property by mixing your labor with it? "Until someone does something with a resource. . . it seems obvious that there can be no question of anyone, either collectively or privately, owning it. There lies the intuitive plausibility of the Lockean theory that property results from someone 'mixing his labor' with an unowned resource. Ownership of any sort can only get going when someone makes it happen, by doing something with a resource, with what is otherwise just an inert bit of stuff."(p. 82, emphasis removed)

The argument just presented did not gain Nozick's full approval. He thought that initial acquisition of property needed to meet a stricter requirement, the so-called Lockean proviso. Under its terms, acquiring property must make no one worse off. As Feser notes, this requirement is readily met: "But given the practical benefits of the institution of private property. . . people's situation is in general vastly better as a result of some people's initially acquiring natural resources."(pp. 83-84)

Because the proviso imposes so weak a demand, it in effect drops out of the picture, and Nozick's theory reduces to a straightforward Rothbardian one. Feser seems entirely right in his contention that the proviso imposes no serious limits to acquisition, but at one point he goes too far. He agrees with the contention of David Schmidtz that the "Lockean Proviso thus not only allows for the acquisition of unowned resources; in many cases it actually requires it!"(p.84)

Schmidtz and Feser note, with entire correctness, that people are often worse off if a resource in common use remains unowned. In such a circumstance, no one has an incentive to use the resource efficiently. But the proviso does not, owing to the "tragedy of the commons", require that people remove land from the commons for their own more efficient use. It limits property acquisition: it is not a general principle of benevolence.

Feser suggests that the proviso be dropped altogether. If someone has acquired unowned land, what rights of others does he violate? By hypothesis, the land is unowned; how then can anyone claim that the appropriator has acted unjustly toward him? If it is said in reply that the appropriator has by his act interfered with a prior practice of common use of the land he now secures for himself, Feser stands ready with a rejoinder. "For if B, C, D, and E were already using the. . .[resource] in common, it seems to me that we should say that they had together already appropriated it themselves, in which case A would not be initially appropriating it, but stealing it. Many cases of resources existing 'in the commons' are, I [Feser] would argue, mischaracterized; they are in fact cases where appropriation has taken place, just not by a single individual."(p.87, emphasis removed)

Here our author seems to me entirely on the right, that is to say Rothbardian, lines. But I wonder whether his account of the principle of initial acquisition is entirely satisfactory.  "It is, in short," he tells us, "the tendency of labor mixing significantly to alter a resource or bring it under one's control that turns it into property."(p.83) Shall we say, then, that someone who ruins unowned land by that act acquires it? Can one say, e.g., to someone who seeks to homestead land, "You can't build here. I started a forest fire in this neighborhood last year."?

Feser, with characteristic insight, has adopted another Rothbardian doctrine: all rights are property rights. Like Rothbard, he asks: to what does the right of free speech amount, beyond the right to use certain physical resources? But from the fact that this analysis of rights is a good idea, and the further fact that Nozick had many good ideas, it does not follow that Nozick adopted it. I am at a loss to understand why Feser says, "on Nozick's conception, all rights turn out to be nothing other than property rights."(p.36) Nozick countenances, although he never fully commits himself to, procedural rights---rights not to be subject to risky decision procedures. It is not at once evident how these can be accommodated within the analysis that our author favors.1

If at times, as it seems to me, Feser elides the differences between Nozick and Rothbard, this by no means indicates his own full adherence to the Rothbardian camp. Quite the contrary, he accepts Nozick's view that a system of competing protection agencies, of the sort that Rothbard favored, would develop by steps that violated no one's rights into a minimal state.

Suppose that Nozick is right. It by no means follows that a minimal state is preferable to a system of Rothbardian anarchy. One can readily imagine cases in which people end up in very bad conditions, as a result of steps that violate no rights. Imagine that all readers of The Mises Review transferred all their assets to me. Though I think this an idea of outstanding merit, honesty compels me to admit it would make my readers far worse off than they are now. Yet no one's rights are violated by this scheme. In like fashion, Nozick's derivation requires extra steps besides those Feser has specified. It must be shown that each stage of the derivation of the minimal state benefits those who undertake it. Of this necessity, Nozick was fully aware.2

But is Nozick right? Will anarchy lead to the minimal state, in a way that fully respects rights? The derivation has been much controverted, and Feser gives a succinct and accurate account of the principal issues. One step in Nozick's account strikes me as especially questionable, although it has not occupied the center of discussion.

As everyone knows, Nozick thinks that a dominant protection agency may prohibit independents from imposing risky decision procedures on its clients. If it does so, it must compensate them, by providing these independents with its own protective services. "It may charge an independent for providing these services to him, but only an amount the independent would have had to spend anyway in protecting himself. . ."(p.59)

Is this not a peculiar sort of compensation? The dominant agency first cripples the ability of independents to protect themselves. It then "makes it up to them" by graciously allowing them to become its paying clients. You do not want my protection; but when I sell it to you, under conditions you will find hard to refuse, you have been "compensated". This is more than a little Orwellian.

Further, what limits the dominant agency when it prohibits "risky" decision procedures? May it ban whatever displeases it? Nozick's discussion gives us no firm limits. It is this that lies at the heart of Rothbard's criticism of his views on risk. I think that Feser has read Rothbard uncharitably, though he quotes him accurately, in attributing to him a general denial "that any behavior risky to others can ever legitimately be prohibited."(p.62) The "risk" that concerns Rothbard in the passage Feser cites is, I think, restricted to cases where Nozickian dominant agencies act without limits. But readers must judge for themselves.

This book perfectly illustrates the old maxim, "multum in parvo," and to my mind the best of the many fine things in it is Feser's brilliant defense of the view that taxation amounts to forced labor. The programs of the welfare state entail that "the state and its beneficiaries have an entitlement or enforceable claim to, and thus a partial property right in, your labor, and thus of you. They are, in short, part-owners of you. The egalitarian welfare state thus amounts to a system of slavery—less onerous than full slavery, to be sure, but partial slavery is still slavery."(p.79).

1 Feser argues effectively that procedural rights are negative rights to respect persons’ rights to self-ownership. (p.60) But this does not make them property rights. Nozick in conversation rejected the "all rights are property rights" view; he also did not think that all rights stem from self-ownership.

2 Once more, I am indebted to conversations with Nozick.


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