Since at least as far back as Plato, many of the world's great minds have devoted themselves to the problems of politics. But they have not come up with any answers that have satisfied more than a narrow and transient majority in some country here or there. Today there are about 150 national governments in the world; but no two operate on exactly the same principles. If a free expression of opinion could be obtained in any one country, it would probably be found that at least a substantial minority was unhappy with some important part of the existing political arrangement or its operation.

We may distinguish at least three major political problems, which have existed since the beginning of time:

1. Should there be a government at all, and if so, exactly what should be the extent and nature of its permitted powers? Should these powers be precisely specified and limited, or is there an indeterminate area between certain minimum and maximum powers that may safely be left to popular choice?

2. Once the proper limits to the province and powers of the state have been decided upon, how can we stop the politicians in office from using their existing powers to extend and increase their powers?

3. By what method should the holders of office and power be chosen? For what terms, and so forth? How should their individual powers be allotted and delimited; and what provision should be made to assure that they responsibly execute those powers and no others?

It will be noticed that the political problem is twofold. It is not only to find what the best arrangements would be for choosing or changing political leaders or their powers, but for assuring that these arrangements are adhered to. This is one of the chief reasons (if not the chief) why the political problem has almost nowhere been better than temporarily solved. The ambition of men for political power has immemorially led them not only to demagoguery and deceit, but to force, war and murder, to achieve and increase it. It is because of this that I have elsewhere raised the question whether the principal problems of politics are in fact solvable. ("Is Politics Insoluble?" Modem Age, Fall 1976)

This is not on its face an encouraging quest. But the answer is so important for the future of mankind (let alone the immediate future of our own country) that we are bound to extend every effort to try to get as near to a workable solution as we can.

One promising procedure is to examine the answers that have been offered historically by the great political thinkers of the past to try to determine where they went wrong or what important problems they neglected to answer. We could do this chronologically beginning with the earlier answers, but I think it would be more interesting if we began with one of the latest answers and tried to find whether it satisfied us, and if not, why.

So I shall begin by examining the answer offered by Professor Robert Nozick of Harvard in 1974 in his book Anarchy, State, and Utopia. This book has attracted more attention than any other in the last five years that attempted to solve the problem of the proper province of the state. It won the National Book Award in 1975.

Away from Anarchy

Not least interesting about it is that it begins with a patient and open-minded discussion of an anarchy -- of the possibility of getting along with no government at all. It considers the suggestion of the New Anarchists, for example, that honest and peaceable citizens could solve the problem of protecting their property and persons by joining and paying dues to private protective associations. Nozick shows how there would tend to grow up competing protective associations, that some of these might be little better than gangster associations, that some would be stronger than others, that it would not give anyone adequate protection to become a member of one of the weaker associations, and that in time one association would tend to establish a monopoly. But if such an association had the power of excluding some people from membership, or failed to act with complete morality and impartiality, it would be intolerable. Hence society would be forced to adopt a "minimal state."

Nozick announces his main conclusions on the very first page of his Preface:

Our main conclusions about the state are that a minimal state, limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; that any more extensive state will violate persons' rights not to be forced to do certain things, and is unjustified; and that the minimal state is inspiring as well as right. Two noteworthy implications are that the state may not use its coercive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protection.

Now, this conclusion, though it would be regarded as extreme not only by popular opinion but by the great majority of political writers in every country today, is one that has a respectable history, and will be regarded sympathetically by a large number of declared libertarians. But I am troubled, most of the time, by the kind of arguments by which Nozick reaches his conclusion. Going a little further, I am frequently troubled by Nozick's style. It seems at times almost deliberately obscure. It is interrupted by diversions, digressions, parentheses, involutions, excessive footnotes -- by a sort of self-heckling. He constantly confronts us with logic -- chopping, with technicalities, and with abstractions without any helpful concrete references or illustrations.

Natural Law

Coming to problems of substance, I am bothered by his explicit rejection of any form of utilitarianism, and his attempt to substitute "natural law" justifications of his position. Here he seems to have been influenced by his Harvard colleague John Rawls -- though he rejects Rawls' conclusions in many other respects. But as not only Nozick but an astonishing number of young libertarians have recently been taking this natural-law position, it is worth examining in some detail.

Nozick dismisses utilitarianism because his conception of it, like that of Rawls and others, is essentially a caricature. He sees the utilitarian as a fellow who judges conduct by its immediate effect on the balance of pain and pleasure, and makes a mechanical pain pleasure calculus of the results of a particular action, without considering "justice" and other values. One or two of the older utilitarians may have been guilty of giving such an impression, but this has little to do with the doctrine in its modern form.

I have suggested in my book, The Foundations of Morality (1964, 1972), not only that the utilitarianism of Bentham, and even of Mill and Sidgwick, has been in important respects superseded, but that it would increase clarity of thought to abandon the old term entirely. I have recommended substituting the term "rule-utilitism" because it comes much closer to describing a satisfactory moral system.

We should not take or judge an action in accordance with what we think would be its consequences considered as an isolated act. Not only can we never be certain what such consequences would be, but with such a moral code (or lack of code) we would never be able to depend on each other's conduct, and we would fall far short of that social cooperation by which we most fully promote our own and each other's ends. Moral action, for the most part, is action in accordance with accepted principles or rules. It is only when each of us can be depended upon to act consistently in accordance with such principles or rules that we can depend on each other. It is only when we can rely on each other to keep our promises, to tell the truth, to refrain from theft, fraud and violence, and to help each other in emergencies, that we can best promote that social cooperation so essential to attaining our individual ends.

These moral rules evolved during the centuries, long before they were explicitly formulated or codified, and certainly long before any moral philosopher explicitly formulated any single rationale or test by which good rules could be distinguished from bad ones or the best from the second best. But the doctrine of utility, first put forward by David Hume and later elaborated by Bentham, Mill, Sidgwick, and others, was the first test that unified and clarified the whole area of morals.

The Pleasure-Pain Balance -- An Unsolved Problem

The first attempts to generalize the proper aim of all moral rules -- such as rules conducive to promoting "the greatest happiness of the greatest number," proved to have some awkward shortcomings. Was the goal of "pleasure" or "happiness" sufficiently inclusive? Or sufficiently noble? And when an action promoted one man's happiness -- or even a hundred men's happiness -- but at the cost of another man's pain or misery, by what kind of moral arithmetic could we determine the net balance? The utilitarians have never satisfactorily solved this problem -- but neither has anybody else. Fortunately, because an acceptable moral code prescribes principles or rules of action rather than particular acts, there are very few occasions when the need for such moral arithmetic seriously arises.

More important than this, rule utilitists are not necessarily bound by any pain-pleasure principle, or even any happiness-maximizing principle. They can simply accept as the principles of moral action those rules that would lead to the most satisfactory or desirable results for society, without trying to be more explicit as to the exact way of measuring such results. Anti-utilitists, rejecting such a criterion, would then be obliged to contend that their substitute criterion should be applied instead, even though it admittedly prescribed moral rules that would lead to less satisfactory or less desirable results for society.

Justice and Utility

One favorite contention of some anti-utilitists is that the utilitist criterion must be abandoned because it does not include "justice." That this contention is being seriously pressed today is odd historically, because John Stuart Mill devoted the whole last third of his famous essay Utilitarianism in 1863 to discussing "The Connection Between Justice and Utility." He concluded that: "Justice is a name for certain moral requirements, which, regarded collectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others."

But those who make "justice" the supreme if not the sole criterion of moral judgment regard it as a requirement that must be met for its own sake, regardless of what consequences it may lead to. The motto of these people is: Fiat justitia, ruat caelum: "Let there be justice, though the heavens fall." But the real reason for insisting on justice is to prevent the heavens from falling.

Those who insist that justice is solely an end in itself, and never a means to social peace and cooperation or other ends beyond itself, are also nearly always those who take a simplistic view of it. Everybody is supposed to know what "justice" is: it is simply "fairness", and we all know what is "fair". But through the centuries it has been the main function of thousands of legislators and jurists to decide what is justice both in abstract types of cases and in particular cases and circumstances.

Most of the non-utilitists and anti-utilitists in the past have been champions of Natural Law. The doctrine of Natural Law, it is true, has a very respectable history. It was promulgated or accepted by Plato and Aristotle, by the Stoics, by St. Thomas Aquinas, by Hugo Grotius and Samuel Pufendorf, by John Locke, by Jean-Jacques Rousseau, and by some of the Founding Fathers when they drafted or defended the American Constitution. But it has always owed a large part of its appeal to its ambiguity. The physical laws of nature, of cause and effect, determine everything, including, in one sense, human action. But this is something quite different from "natural laws" that are supposed to prescribe how men should conduct themselves.

A Nebulous Concept

The central difficulty with Natural Law is that no two of its votaries seem to have been able to agree regarding precisely what it enjoins. For Aristotle it sanctioned the subordination of women to men and of slaves to Athenian citizens. For the Stoics it prescribed equalitarianism. For many it meant the plain dictates of "right reason," though nobody could quite agree regarding what right reason prescribed. For others it meant the "divine will," with even more disagreement regarding what this commanded. Still others derived Natural Law from the law that existed in a "state of nature." But for some this meant savagery and for others a sort of Garden of Eden. According to the Declaration of Independence "the Laws of Nature" made certain "unalienable rights" self-evident.

Finally, Jeremy Bentham, toward the end of the eighteenth century, was moved to exclaim that Natural Law was "nonsense on stilts." In his Principles of Morais and Legislation (1780), he wrote (Ch. 2):

"A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters and sections of the Law of Nature."

This is not too unfair a description of those who are trying to revive the doctrine of Natural Law even today. They try to deduce its prescriptions from certain moral "axioms" taken from Locke or of their own devising. A typical one goes: "Every man owns himself, therefore ____." It is also clear that some of the rules that the natural-law champions "deduce" are, in fact, disguised or crypto-utilitist rules. Thus John Rawls, an avowed anti-utilitarian, in trying to deduce the principles of justice (in his A Theory of Justice), begins by assuming a society of persons "who in their relations to one another recognize certain rules of conduct as binding;" and "these rules specify a system of cooperation designed to advance the good of those taking part in it" (p. 4). He goes on to remark that "social cooperation makes possible a better life for all than any would have if each were to live solely by his own efforts" and so on. But rules designed to "advance the good" and make possible "a better life for all" are precisely utilitist rules. The ideal of justice is an inherent part of rule utilitism, not a separate or competing concept.

No Firm Foundation

The great difficulty with Natural Law, on the other hand, is not only that there is no agreed-upon code, but no agreement on the principles upon which such a code could be constructed. The greater part of the Natural Law votaries are really intuitionists in their moral philosophy.

I apologize for having given so much space to a seemingly irrelevant discussion of the relative merits of utilitist versus Natural Law standards. But it is not only Nozick who explicitly rejects utiitist tests in favor of Natural Law, but an increasing number of young libertarians who have apparently been influenced by him.

So far practically all I have written on Nozick's book has been negative. Why, then, am I discussing his book at all?

I do this because, while I think that Nozick often fails to base his reasoning on genuine first principles, and while his logic often seems to me unduly technical or irrelevant, he more than makes up for this by many brilliant arguments on special points. I shall cite a few of these.

Nozick is especially good in analyzing the rhetorical nonsense behind many of the leftists' recent objections to capitalism. A fashionable objection today is that workers lose their self-esteem by being frequently ordered about, under the authority of others unselected by them, and by having to work at tasks that they do not regard as "meaningful." Nozick points out that even members of a symphony orchestra are constantly ordered about by their conductor, and not consulted about the overall interpretation of their work, but nevertheless retain a high self-esteem.

More seriously, he points out that fragmentation and specialization of tasks are not problems peculiar to capitalist modes of production, but would go with any industrial society. The reason is that they tend to lead to the lowest costs and the highest efficiency and production. Suppose (which is most probable) that dividing a firm's work force into "meaningful" segments, rotating the workers into different tasks, and so on, could only be accomplished at the cost of less efficiency and production (as judged by market criteria)? Would the workers be willing to accept lower pay in order to do this more "meaningful" labor? Or would consumers be willing to pay higher prices for the same goods, or get less of them, in order that this more "meaningful" work could be provided? Who would be willing to pay for such a reform, and how much? Would a socialist government forbid "non-meaningful" work?

Labor Theory Refuted

As a more important example, let us take Nozick's refutation (on pages 253 to 262) of Marx's labor theory of value and his general exploitation theories. Similar refutations have been made before, notably by Böhm-Bawerk, but Nozick's is an especially compact one. Marxist theory, he concedes "does not hold that the value of an object is proportional to the number of simple undifferentiated labor hours that went into its production; rather, the theory holds that the value of an object is proportional to the number of simple undifferentiated socially necessary labor hours that went into its production."

But then, it turns out (though Marx himself never got around to seeing or acknowledging this clearly) that the amount of labor that really is "socially necessary" is determined by the utility and value of the particular commodity that is made! As Nozick concludes: "What is socially necessary, and how much of it is, will be determined by what happens on the market! There is no longer any labor theory of value; the central notion of socially necessary labor time is itself defined in terms of the processes and exchange ratios of a competitive market!  ... One might be left with the view that Marxian exploitation is the exploitation of people's lack of understanding of economics".

"Distributive Justice"

I come to my final example. This is Nozick's theory of "entitlements." He has argued that "the minimal state is the most extensive state that can be justified," and that "any state more extensive violates people's rights." He then addresses himself to the argument that a more extensive state is justified in order to achieve "distributive justice."

One trouble with this whole conception, he points out, is that it implicitly assumes that goods have already been "distributed by some central source or according to some single principle," and that the duty of the state is to redistribute them according to some other "patterned principle." But this overlooks the whole history of how the present "distribution of goods" came about."Things come into the world already attached to people having entitlements over them. From the point of view of the historical entitlement conception of justice in holdings, those who start afresh to complete to each according to his needs treat objects as if they appeared from nowhere, out of nothing."

How did the existing "distribution of things" come about? It came about because some people made the things they now hold, or because they were paid their marginal contribution to output in wages, or because they inherited property, or the objects (or money) were given to them by their parents, their spouses, or their friends. So even if the state made some "patterned redistribution of wealth" -- to each according to his needs, or to each equally -- that pattern would very quickly be upset by some people continuing to create more than others, or some people giving freely to others, or some people voluntarily paying well for certain services, or to see or hear a particular professional athlete or performer, and so on. As Nozick sums up: "The socialist society would have to forbid capitalist acts between consenting adults."

The system of entitlements is defensible, he argues, "when constituted by the individual aims of individual transactions. No overarching aim is needed, no distributional pattern is required."

He goes on later to contend persuasively that: "Taxation of earnings from labor is on a par with forced labor" (p. 169).

Unfinished Arguments

But in spite of many excellences, Nozick's argument for his minimal state is in the end not quite convincing. A good part of the reason for this is revealed in his own description of his procedure in his Preface:

"Part I justifies the minimal state; Part II contends that no more extensive state can be justified. I proceed by arguing that a diversity of reasons which purport to justify a more extensive state, don't. Against the claim that such a state is justified in order to achieve or produce distributive justice among its citizens, I develop a theory of justice (the entitlement theory) which does not require any more extensive state, and use the apparatus of this theory to dissect and criticize other theories of distributive justice which do envisage a more extensive state.... Other reasons that some might think justify a more extensive state are criticized, including equality, envy, workers' control, and Marxian theories of exploitation."

But his book, he goes on, is not "a political tract" but a "philosophical exploration." It does not pretend to be "a finished, complete, and elegant whole," but "a less complete work, containing unfinished presentations, conjectures, open questions and problems, leads, side connections, as well as a main line of argument. There is room for words on subjects other than last words."

No doubt there is. But it is precisely because Nozick has elected to write a book with a rambling and "unfinished" argument, with so many digressions, that many readers will find it unsatisfying and even occasionally irritating, that they will lose the thread of the main argument, and though finding it often persuasive, will in the end not find it quite conclusive.

I am not saying that it could not have been made so. Nozick does convincingly make his argument against anarchy. Others before him have advocated precisely his minimal state, "limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on." It is an attractive ideal. But it has never been held by more than a tiny minority. If its appeal is ever to be widened to reach an effective number of thought leaders it must be by a broadly understandable but orderly chain of reasoning, without confusing digressions and without serious missing links, that makes its conclusion seem inescapable.

Notes

*  From the November 1979 issue of The Freeman.

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