Life of Liberty
Robert Nozick, R.I.P.
By Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law, the University of Chicago & Peter and Kirsten Bedford Senior Fellow, the Hoover Institution
January 24, 2002 10:20 a.m.
The bulletin on the Harvard University website reported Wednesday today the death at age 63 of Robert Nozick. The release goes on to write what everyone who knew Nozick would confirm. As teacher, friend, and colleague in no particular order, he was a restless intellectual capable of enlivening every discussion with a bewildering blitz of questions that always left you one step behind. In one sense, it might be possible for each of us to think of many people with the intelligence and enthusiasm of Robert Nozick. But a short tribute to Nozick on the website of the National Review is appropriate for yet another reason. He counts, along with Friedrich Hayek, as one of the two most important voices for individual liberty, private property, and limited government in the twentieth century.
The similarities and contrasts with Hayek were briefly noted on the Harvard website, but they are worth some further elaboration here. Hayek was an economist by training who wrote against the backdrop of the failed experiment of European socialism. He championed the decentralized systems of decision-making and rebelled against the planned economy that rested on dubious social calculations. Hayek was not a believer in the power of reason to think our way to sound social conclusions. He believed that markets worked well because prices allowed people to signal to each other as to the value they attached to certain resources, without having to give lengthy explanations as to the uses to which those resources were put. Private information did not have to be pooled in order to be used. Hayek's overall attitude was to be suspicious of large constructivist schemes that sought to impose a rational order on the world, and to rely on a mix between custom and spontaneous evolution to explain the emergence of those private practices and public institutions that survived.
Nozick's great work, Anarchy, State and Utopia, was published in 1974, when he was about 35 years old, to instant critical acclaim. It shows some influence of the Hayekian strands, but in many ways takes off in a very different direction. Nozick did not start his great intellectual journey with homage to custom of past practices. Rather, he gravitated to the rational analysis of which Hayek disapproved. For Nozick the point of departure was that great trope of political and legal philosophy, "state of nature theory." He asked, as had others before him, the first hard question, which is why it is that there should be governments to which ordinary individuals owe any allegiance at all? In contrast to the strong collectivist urges of his time, Nozick pursued a fiendishly clever excursus into just about every corner of the world. Just recently, I have been working on some questions of animal rights, and sure enough, Anarchy, State and Utopia has some wise words of caution about efforts to disregard the interests of animals in dealing with philosophical pursuits.
These intermittent journeys down intellectual byways, however, had large payoffs both for political and legal philosophy. Nozick was, as far as I know not trained as a lawyer (although his daughter Emily is a graduate of the University of Chicago Law School, Class of 1991), but his ceaseless curiosity and imagination allowed him to develop by intuition a theory of justice in holdings that followed closely on the legal approach to these problems. Anarchy, State and Utopia hit the streets only three years after John Rawls published his magisterial Theory of Justice which was then (and to some extent still is) read as a plea for the redistribution of wealth from those who have it to those who do not. Nozick's own view of justice was well summarized by his famous remark that liberty upsets patterns. For him justice was not simply the some ideal end state, but a process by which people entered into transactions and made their way into the world.
Starting with this perspective, Nozick quickly reached the conclusion that all individuals begin life with a system of self-ownership, which is then extended into the world by a principle of justice in acquisition whereby unowned things in the natural world received single owners. These owners in turn are allowed by virtue of the principle of justice in transfer allowed to convey the property to someone else who in turn inherits all the rights of the owner. No other moves are allowed in the game. This system of acquisition and voluntary transfers is then protected against people who wish by force or threats to secure property already held by others.
Once this system was in place, Nozick was able to show two key points. First, the repeated applications of these principles allowed for the creation of complex legal and social arrangements. Nothing dictates that a transfer be made on an out-and-out basis. All sorts of arrangements of divided ownership are possible as well, and from these can emerge our law of partnerships, loans, leases and gifts. So much of the ordinary stuff of life becomes intelligible by the systematic use of a small set of core principles. Second, Nozick showed that these principles of justice were constantly at war with efforts to impose some fixed, ostensibly just, distribution of wealth, goods, services or whatever, among individuals. His famous illustration involved the succession of transactions that made Wilt Chamberlain rich. Each person who paid to see a game in which he played gave money to the team which in turn transferred it to him. Each of the links in the chain of transfer was secure, and so too the ultimate distribution of wealth that derived from those arrangements. His techniques of analysis were vastly different from those of Hayek; yet two great minds came by quite different routes to the conclusion about the proper system of justice among ordinary individuals.
The impact that Nozick had on my own thinking was profound. When I first read his work in the mid-1970s I was struggling as a youthful common lawyer to figure out how the various pieces of property, contracts and torts fit into a single coherent whole. The key to many of the quandaries that I faced were found in the rich pages of Anarchy, State and Utopia. His analytical powers allowed him to short-circuit the usual practice of trial and error to see patterns overlooked by people who are steeped in the particulars of the legal system.
In writing Anarchy, State and Utopia, Nozick followed the pattern of inquiry adopted by many great legal and political writers from Hobbes to the present day. His exploration into the theories of private rights and duties was done in order to give us purchase on the grand question of why it was that any ordinary individual owed allegiance to the state. On this question, I think it's fair to say that Nozick was not quite able to close the circle. He ingeniously was able to show how individuals for security would become members of extended protective organizations. He was less successful in showing how these repeated voluntary maneuvers were able to generate a single protective association that would exercise the monopoly power over force that marks the distinctive role of the state. In my case, his influence was again profound, because it made it necessary to find the missing piece of the puzzle to explain why principles of justice in acquisition and transfer were not quite enough, even with their repeated application, to create the state. Nozick himself resisted the use of hypothetical or social contracts, claiming that these were not worth the paper they weren't written on. My own solution, put forward first in Takings in 1985 was to argue that we had to rely on these tricky strategies in order to explain why each person could be compelled to surrender his rights to liberty and receive in exchange the security that only a well-constructed state could provide. Forced exchanges, which he ruled categorically out of bound, were the key, so long as they worked for the benefit of those subject to the coercion.
On this occasion, however, the important point is not that Nozick did not close the circle, but rather that he single-handedly revived the classical liberal tradition. In so doing it became clear that he was not a social conservative, much less a friend of privilege, but was in fact a committed academic maverick working against the grain, doing what academics are supposed to do best: taking a thread and working it through to its maximum intellectual advantage. For his labors, he was attacked mightily and often in the philosophical literature. I can vaguely recall one such attack that accused him of having the moral sensibilities of a filling-station attendant in some midwestern state. But the frequency and severity of the attacks on Anarchy, State, and Utopia only provide further evidence of his richness and profundity. If the book had been refuted but once, it would have counted for little. That it has been "refuted" countless times proves that he is the author of one of the enduring classics of the political philosophy. To be a Nozickian stands for something. His influence on his own profession, on collateral social disciplines, and on the law has been enormous. In his later years he refused to go back in print to the issues raised in Anarchy, State and Utopia, but instead directed his endless energy to more purely philosophical inquiries. Doubtless under Harvard's influence, he even expressed some communitarian doubts about some of the sharp individualist conclusions that he articulated and defended so ably in Anarchy, State and Utopia.
It seems fair to say that he will not be remembered or praised for these latter recantations, nor even his later work in other disciplines. But he will long be remembered for what he did best when he was young: To take up arms against the conventional wisdom in favor of big government and extensive political power, and in so doing to secure for himself a place as one of the great political philosophers of the twentieth century. Harvard was the stronger for having him. Those of us who knew him will miss him. Everyone on all sides of the political spectrum will benefit, under a principle of justice in intellectual transmission, from his spirited intellectual legacy in the service of liberty.
(c) 2010 Maya Chilam Foundation