Nozick and Process-Defective Fundamental Explanations
You want some real criticism of Robert Nozick? Here, let me show you how it’s done.
Part one of Anarchy, State, and Utopia proposes to justify the minimal state — the one that grants security of persons and property against external assaults while doing nothing more in the way of social welfare or public works. Later sections discuss these add-ons, but I’m going to set them aside for now, because section one completely fails on its own terms.
In summary, here’s Nozick’s argument:
Out of anarchy, pressed by spontaneous groupings, mutual-protection associations, division of labor, market pressures, economies of scale, and rational self interest there arises something very much resembling a minimal state or a group of geographically distinct minimal states. Why is this market different from all other markets? Why would a virtual monopoly arise in this market without the government intervention that elsewhere creates and maintains it? The worth of the product purchased, protection against others, is relative: it depends upon how strong the others are. Yet unlike other goods that are comparatively evaluated, maximal competing protective services cannot coexist; the nature of the service brings different agencies not only into competition for customers’ patronage, but also into violent conflict with each other. Also, since the worth of the less than maximal product declines disproportionately with the number who purchase the maximal product, customers will not stably settle for the lesser good, and competing companies are caught in a declining spiral (AS&U pp 16–17).
In this account, the state emerges out of anarchy and competing private protection agencies via an invisible-hand process. The protection market is unusual because in it, my purchase of good A makes your purchase of competing good B less valuable. If you’re anything close to rational, you’ll switch to A at the slightest sign that B is weakening — and A thereby becomes even more preferable. One minimal state emerges.
Now, this is a fascinating idea. But does it track what happened historically? Nozick argues, disarmingly, that it doesn’t matter:
A theory of a state of nature that begins with fundamental general descriptions of morally permissible and impermissible actions, and of deeply based reasons why some persons in any society would violate these moral constraints, and goes on to describe how a state would arise from that state of nature will serve our explanatory purposes, even if no actual state ever arose that way… Let us say that a law-defective potential explanation is a potential explanation with a false lawlike statement and that a fact-defective potential explanation is a potential explanation with a false antecedent condition. A potential explanation that explains a phenomenon as the result of a process P will be defective (even though it is neither law-defective nor fact-defective) if some process Q other than P produced the phenomenon, though P was capable of doing it. Had this other process Q not produced it, then P would have. Let us call a potential explanation that fails in this way actually to explain the phenomenon a process-defective potential explanation (AS&U, p 8, emphasis in original — as if Nozick needed more emphatics!).
In other words, our invisible hand explanation for the state might not be law-defective, because it contains laws of human behavior that we find plausible. It might not be fact-defective, because it yields a thing we’d call a state. But maybe it just didn’t happen that way.
Fatal? Nope! Nozick writes:
A fundamental potential explanation (an explanation that would explain the whole realm under consideration were it the actual explanation) carries important explanatory illumination even if it is not the correct explanation. To see how, in principle, a whole realm could fundamentally be explained greatly increases our understanding of the realm (ibid, again emphasis in the original).
Here’s where I’d stick the knife in, because process-defective fundamental explanations are perversely deficient in moral force: If a successful neurosurgeon took up pickpocketing, we wouldn’t excuse him for saying, “Well, I could have earned that money.” If the state is similarly situated, then we have failed to justify it. What we want is not explanation at all, but justification, and process-defective accounts obviously don’t cut it. Indeed, they get more horrible the longer you think about them (“She could have consented”).
It’s also little short of astonishing to see Robert Nozick of all people defending process-defective fundamental explanations. As the League has recently discussed, in the section of AS&U on distributive justice, Nozick argues in favor of historical principles of justice — that is, principles that do pay attention to process, even to the exclusion of some fairly severe emergent patterned effects, like disparities in wealth or social station.
It is odd in the extreme, then, that a state’s holdings of political power should be justified by what amounts to a pattern principle with a bit of vestigial imaginary history tacked on: Pattern P is just because it could have arisen through process Q, even if it didn’t do so in the real world. So if we have pattern P, we have justice, and never mind how we got there!
This is especially absurd when we remember the true history of state formation. It was largely a process, as Mancur Olson notes, of bandits growing more sedentary over time. Olson’s is not a new insight, by the way; David Hume was saying much the same in the eighteenth century:
Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any presence of a fair consent or voluntary subjection of the people. When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing, sometimes violence, sometimes false presences, to establish his dominion over a people a hundred times more numerous than his partisans. He allows no such open communication, that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those who are the instruments of his usurpation may wish his fall; but their ignorance of each other’s intention keeps them in awe, and is the sole cause of his security. By such arts as these many governments have been established; and this is all the original contract which they have to boast of.
The state was not the product of a rational and mostly peaceful coordination process by unconstrained, reasonably informed actors. In detail, state formation was a lot more like what James C. Scott has described, notably in Seeing Like a State and The Art of Not Being Governed. In Scott’s account, the state was produced in answer to the demand for a tractable, docile, legible population of individuals who would submit to banditry without the bandits having to work too hard. This population would yield taxes and a killable surplus of young men to use on the battlefield. These were the state’s real incentives, the ones in response to which it actually formed. The entity that got the most favorable sum total of both would grow stronger, while rivals would grow weaker, but it all depended on extracting relatively more effectively from the population at hand. Statecraft is populationcraft.
So the state emerged from a wide variety of social institutions, some innocuous, some even possibly beneficial, but all having the effect of making wealth- and conscript-extraction easier for those who were so inclined. Contributors to state formation thus include things like religion, wet-rice cultivation, literacy, maps, compulsory education, the census, property records, paid civil service, the use of money, the legal profession, and even at times the medical and mental health professions.
Can it really be that a process elaborated for the purpose of stationary brigandage (via the forced efforts of others!) yields exactly the same fact pattern as a group of rational, Nozickian actors in the state of nature, behaving on the whole reasonably and peacefully? I find this extraordinarily difficult to believe. But if we reject this equivalence, then Nozick’s explanation is both process-defective and, in his terms, fact-defective — because Scott’s state is a very different creature from Nozick’s. If only we had had Nozick’s process, and Nozick’s result, and not the ones we actually got!
Is there anything left of Nozick’s account? If we walk back the grand claims made about process-defective fundamental explanations, we’re still left with a fairly strong albeit counterfactual argument against anarcho-capitalism. Because anarcho-capitalism is itself a counterfactual claim, I’ll go out on a limb and say that I think it probably works, in this narrow sense at least: Set up an anarcho-capitalism, and the very best you can hope for is the spontaneous emergence of a minimal state, à la Nozick.
We might also have, as I’ve argued in the past, not an explanation that exonerates past behavior, but one that prescribes appropriate future behavior: The state may only properly act as if it were the product of the Nozickian process (with, perhaps, some add-ons for social welfare and public works, if you can justify them). It must not exceed these bounds. I’ve said similar things about social contract theory in the past; although no social contract really happened, or if it did, you didn’t personally agree to it, still we should proceed as if the government were indeed so bound — it’s better than nothing, and it’s possibly the best we can do.
But this is still tenuous for two reasons. First, it’s not clear that this prescriptive advice is the right advice to give. After all, we can’t just tell the neurosurgeon-pickpocket to spend his money thoughtfully and do good with it. Second, even if it is wise advice — because we are forced to declare, summarily, that some past wrongs are too far gone to correct — can we really expect the heirs of stationary brigandage to behave as if they were the heirs of Nozick’s much more admirable process? Is there anything in their training, their environment, or their incentive structure that would elicit such behavior? No. Not really.
 I do not mean here to condemn these things in themselves or in all cases. But surely we should condemn their cynical use for purposes of mere wealth extraction.