Part 2 (2/2)

The State

PROHIBITING PRIVATE ENFORCEMENT OF JUSTICE.

AN independent might be prohibited from privately exacting justice because his procedure is known to be too risky and dangerous-that is, it involves a higher risk (than another procedure) of punis.h.i.+ng an innocent person or overpunis.h.i.+ng a guilty one-or because his procedure isn't known not to be risky. (His procedure would exhibit another mode of unreliability if its chances were much greater of not punis.h.i.+ng a guilty person, but this would not be a reason for prohibiting his private enforcement.) Let us consider these in turn. If the independent's procedure is very unreliable and imposes high risk on others (perhaps he consults tea leaves), then if he does it frequently, he may make all fearful, even those not his victims. Anyone, acting in self-defense, may stop him from engaging in his high-risk activity. But surely the independent may be stopped from using a very unreliable procedure, even if he is not a constant menace. If it is known that the independent will enforce his own rights by his very unreliable procedure only once every ten years, this will not not create general fear and apprehension in the society. The ground for prohibiting his widely intermittent use of his procedure is not, therefore, to avoid any widespread uncompensated apprehension and fear which otherwise would exist. create general fear and apprehension in the society. The ground for prohibiting his widely intermittent use of his procedure is not, therefore, to avoid any widespread uncompensated apprehension and fear which otherwise would exist.

If there were many independents who were all liable to punish wrongly, the probabilities would would add up to create a dangerous situation for all. Then, others would be ent.i.tled to group together and prohibit the add up to create a dangerous situation for all. Then, others would be ent.i.tled to group together and prohibit the totality totality of such activities. But how would this prohibition work? Would they prohibit of such activities. But how would this prohibition work? Would they prohibit each each of the individually non-fear-creating activities? Within a state of nature by what procedure can they pick and choose which of the totality is to continue, and what would give them the right to do this? No protective a.s.sociation, however dominant, would have this right. For the legitimate powers of a protective a.s.sociation are merely the of the individually non-fear-creating activities? Within a state of nature by what procedure can they pick and choose which of the totality is to continue, and what would give them the right to do this? No protective a.s.sociation, however dominant, would have this right. For the legitimate powers of a protective a.s.sociation are merely the sum sum of the individual rights that its members or clients transfer to the a.s.sociation. No new rights and powers arise; each right of the a.s.sociation is decomposable without residue into those individual rights held by distinct individuals acting alone in a state of nature. A combination of individuals may have the right to do some action of the individual rights that its members or clients transfer to the a.s.sociation. No new rights and powers arise; each right of the a.s.sociation is decomposable without residue into those individual rights held by distinct individuals acting alone in a state of nature. A combination of individuals may have the right to do some action C. C. which no individual alone had the right to do, if which no individual alone had the right to do, if C C is identical to is identical to D D and and E E, and persons who individually have the right to do D D and the right to do and the right to do E E combine. If some rights of individuals were of the form ”You have the right to do A provided 51 percent or 85 percent or whatever of the others agree you may,” then a combination of individuals would have the right to do combine. If some rights of individuals were of the form ”You have the right to do A provided 51 percent or 85 percent or whatever of the others agree you may,” then a combination of individuals would have the right to do A A. even though none separately had this right. But no individual's rights are of this form. No person or group is ent.i.tled to pick who in the totality will be allowed to continue. All All the independents might group together and decide this. They might, for example, use some random procedure to allocate a number of (sellable?) rights to continue private enforcement so as to reduce the total danger to a point below the threshold. The difficulty is that, if a large number of independents do this, it will be in the interests of an individual to abstain from this arrangement. It will be in his interests to continue his risky activities as he chooses, while the others mutually limit theirs so as to bring the totality of acts including his to below the danger level. For the others probably would limit themselves some distance away from the danger boundary, leaving him room to squeeze in. Even were the others to rest adjacent to the line of danger so that his activities would bring the totality across it, on which grounds could the independents might group together and decide this. They might, for example, use some random procedure to allocate a number of (sellable?) rights to continue private enforcement so as to reduce the total danger to a point below the threshold. The difficulty is that, if a large number of independents do this, it will be in the interests of an individual to abstain from this arrangement. It will be in his interests to continue his risky activities as he chooses, while the others mutually limit theirs so as to bring the totality of acts including his to below the danger level. For the others probably would limit themselves some distance away from the danger boundary, leaving him room to squeeze in. Even were the others to rest adjacent to the line of danger so that his activities would bring the totality across it, on which grounds could his his activities be picked out as the ones to prohibit? Similarly, it will be in the interests of any individual to refrain from otherwise unanimous agreements in the state of nature: for example, the agreement to set up a state. Anything an individual can gain by such a unanimous agreement he can gain through separate bilateral agreements. Any contract which really needs almost unanimity, any contract which is essentially joint, will serve its purpose whether or not a given individual partic.i.p.ates; so it will be in his interests not to bind himself to partic.i.p.ate. activities be picked out as the ones to prohibit? Similarly, it will be in the interests of any individual to refrain from otherwise unanimous agreements in the state of nature: for example, the agreement to set up a state. Anything an individual can gain by such a unanimous agreement he can gain through separate bilateral agreements. Any contract which really needs almost unanimity, any contract which is essentially joint, will serve its purpose whether or not a given individual partic.i.p.ates; so it will be in his interests not to bind himself to partic.i.p.ate.

”THE PRINCIPLE OF FAIRNESS”

A principle suggested by Herbert Hart, which (following John Rawls) we shall call the principle of fairness, principle of fairness, would be of service here if it were adequate. This principle holds that when a number of persons engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission. would be of service here if it were adequate. This principle holds that when a number of persons engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission.1 Acceptance of benefits (even when this is not a giving of express or tacit undertaking to cooperate) is enough, according to this principle, to bind one. If one adds to the principle of fairness the claim that the others to whom the obligations are owed or their agents may Acceptance of benefits (even when this is not a giving of express or tacit undertaking to cooperate) is enough, according to this principle, to bind one. If one adds to the principle of fairness the claim that the others to whom the obligations are owed or their agents may enforce enforce the obligations arising under this principle (including the obligation to limit one's actions), then groups of people in a state of nature who agree to a procedure to pick those to engage in certain acts will have legitimate rights to prohibit ”free riders.” Such a right may be crucial to the viability of such agreements. We should scrutinize such a powerful right very carefully, especially as it seems to make the obligations arising under this principle (including the obligation to limit one's actions), then groups of people in a state of nature who agree to a procedure to pick those to engage in certain acts will have legitimate rights to prohibit ”free riders.” Such a right may be crucial to the viability of such agreements. We should scrutinize such a powerful right very carefully, especially as it seems to make unanimous unanimous consent to coercive government in a state of nature consent to coercive government in a state of nature unnecessary! unnecessary! Yet a further reason to examine it is its plausibility as a counterexample to my claim that no new rights ”emerge” at the group level, that individuals in combination cannot create new rights which are not the sum of preexisting ones. A right to enforce others' obligation to limit their conduct in specified ways might stem from some special feature of the obligation or might be thought to follow from some general principle that all obligations owed to others may be enforced. In the absence of argument for the special enforcement-justifying nature of the obligation supposedly arising under the principle of fairness, I shall consider first the principle of the enforceability of all obligations and then turn to the adequacy of the principle of fairness itself. If either of these principles is rejected, the right to enforce the cooperation of others in these situations totters. I shall argue that Yet a further reason to examine it is its plausibility as a counterexample to my claim that no new rights ”emerge” at the group level, that individuals in combination cannot create new rights which are not the sum of preexisting ones. A right to enforce others' obligation to limit their conduct in specified ways might stem from some special feature of the obligation or might be thought to follow from some general principle that all obligations owed to others may be enforced. In the absence of argument for the special enforcement-justifying nature of the obligation supposedly arising under the principle of fairness, I shall consider first the principle of the enforceability of all obligations and then turn to the adequacy of the principle of fairness itself. If either of these principles is rejected, the right to enforce the cooperation of others in these situations totters. I shall argue that both both of these principles must be rejected. of these principles must be rejected.

Herbert Hart's argument for the existence of a natural right 2 2 depends upon particularizing the principle of the enforceability of all obligations: someone's being under a special obligation to you to do A (which might have arisen, for example, by their promising to you that they would do depends upon particularizing the principle of the enforceability of all obligations: someone's being under a special obligation to you to do A (which might have arisen, for example, by their promising to you that they would do A A) gives you, not only the right that they do A, but also the right to force them to do A. Only against a background in which people may not force you to do A A or other actions you may promise to do can we understand, says Hart, the or other actions you may promise to do can we understand, says Hart, the point point and purpose of special obligations. Since special obligations do have a point and purpose, Hart continues, there is a natural right not to be forced to do something unless certain specified conditions pertain; this natural right is built into the background against which special obligations exist. and purpose of special obligations. Since special obligations do have a point and purpose, Hart continues, there is a natural right not to be forced to do something unless certain specified conditions pertain; this natural right is built into the background against which special obligations exist.

This well-known argument of Hart's is puzzling. I may release someone from an obligation not to force me to do A A. (”I now release you from the obligation not to force me to do A. A. You now are free to force me to do You now are free to force me to do A A.”) Yet so releasing them does not not create in me an obligation to them to do create in me an obligation to them to do A. A. Since Hart supposes that my being under an obligation to someone to do Since Hart supposes that my being under an obligation to someone to do A A gives him (entails that he has) the right to force me to do gives him (entails that he has) the right to force me to do A, A, and since we have seen the converse does not hold, we may consider that component of being under an obligation to someone to do something over and above his having the right to force you to do it. (May we suppose there is this distinguishable component without facing the charge of ”logical atomism”?) An alternative view which rejects Hart's inclusion of the right to force in the notion of being owed an obligation might hold that this additional component is the and since we have seen the converse does not hold, we may consider that component of being under an obligation to someone to do something over and above his having the right to force you to do it. (May we suppose there is this distinguishable component without facing the charge of ”logical atomism”?) An alternative view which rejects Hart's inclusion of the right to force in the notion of being owed an obligation might hold that this additional component is the whole whole of the content of being obligated to someone to do something. If I don't do it, then (all things being equal) I'm doing something wrong; control over the situation is in his hands; he has the power to release me from the obligation unless he's promised to someone else that he won't, and so on. Perhaps all this looks too of the content of being obligated to someone to do something. If I don't do it, then (all things being equal) I'm doing something wrong; control over the situation is in his hands; he has the power to release me from the obligation unless he's promised to someone else that he won't, and so on. Perhaps all this looks too ephemeral ephemeral without the additional presence of rights of enforcement. Yet rights of enforcement are themselves merely without the additional presence of rights of enforcement. Yet rights of enforcement are themselves merely rights; rights; that is, permissions to do something and obligations on others not to interfere. True, one has the right to enforce these further obligations, but it is not clear that including that is, permissions to do something and obligations on others not to interfere. True, one has the right to enforce these further obligations, but it is not clear that including rights rights of enforcing really sh.o.r.es up the whole structure if one a.s.sumes it to be insubstantial to begin with. Perhaps one must merely take the moral realm seriously and think one component amounts to something even without a connection to enforcement. (Of course, this is not to say that this component of enforcing really sh.o.r.es up the whole structure if one a.s.sumes it to be insubstantial to begin with. Perhaps one must merely take the moral realm seriously and think one component amounts to something even without a connection to enforcement. (Of course, this is not to say that this component never never is connected with enforcement!) On this view, we can explain the point of obligations without bringing in rights of enforcement and hence without supposing a general background of obligation not to force from which this stands out. (Of course, even though Hart's argument does not demonstrate the existence of such an obligation not to force, it may exist nevertheless.) is connected with enforcement!) On this view, we can explain the point of obligations without bringing in rights of enforcement and hence without supposing a general background of obligation not to force from which this stands out. (Of course, even though Hart's argument does not demonstrate the existence of such an obligation not to force, it may exist nevertheless.) Apart from these general considerations against the principle of the enforceability of all special obligations, puzzle cases can be produced. For example, if I promise to you that I will not murder someone, this does not give give you the right to force me not to, for you already have this right, though it does create a particular obligation you the right to force me not to, for you already have this right, though it does create a particular obligation to you. to you. Or, if I cautiously insist that you first promise to me that you won't force me to do A before I will make my promise to you to do Or, if I cautiously insist that you first promise to me that you won't force me to do A before I will make my promise to you to do A A, and I do receive this promise from you first, it would be implausible to say that in promising I give you the right to force me to do A. (Though consider the situation which results if I am so foolish as to release you unilaterally from your promise to me.) If there were cogency to Hart's claim that only against a background of required nonforcing can we understand the point of special rights, then there would seem to be equal cogency to the claim that only against a background of permitted permitted forcing can we understand the point of forcing can we understand the point of general general rights. For according to Hart, a person has a general right to do rights. For according to Hart, a person has a general right to do A A if and only if for all persons if and only if for all persons P P and and Q Q, Q Q may not interfere with may not interfere with P P's doing A A or force him not to do or force him not to do A, A, unless unless P P has acted to give has acted to give Q Q a special right to do this. But not every act can be subst.i.tuted for ” a special right to do this. But not every act can be subst.i.tuted for ”A”; people have general rights to do only particular types of action. So, one might argue, if there is to be a point to having general rights, to having rights to do a particular type of act A A, to other's being under an obligation not to force you not to do A A, then it must be against a contrasting background, in which there is no obligation on people to refrain from forcing you to do, or not to do, things, that is, against a background in which, for actions generally, people do not not have a general right to do them. If Hart can argue to a presumption against forcing from there being a point to particular rights, then it seems he can equally well argue to the absence of such a presumption from there being a point to general rights. have a general right to do them. If Hart can argue to a presumption against forcing from there being a point to particular rights, then it seems he can equally well argue to the absence of such a presumption from there being a point to general rights.3 An argument for an enforceable obligation has two stages: the first leads to the existence of the obligation, and the second, to its enforceability. Having disposed of the second stage (at least insofar as it is supposed generally to follow from the first), let us turn to the supposed obligation to cooperate in the joint decisions of others to limit their activities. The principle of fairness, as we stated it following Hart and Rawls, is objectionable and unacceptable. Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to inst.i.tute a system of public entertainment. They post a list of names, one for each day, yours among them. On his a.s.signed day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people have have put themselves out. But must you answer the call when it is your turn to do so? As it stands, surely not. Though you benefit from the arrangement, you may know all along that 364 days of entertainment supplied by others will not be worth your giving up put themselves out. But must you answer the call when it is your turn to do so? As it stands, surely not. Though you benefit from the arrangement, you may know all along that 364 days of entertainment supplied by others will not be worth your giving up one one day. You would rather not have any of it and not give up a day than have it all and spend one of your days at it. Given these preferences, how can it be that you are required to partic.i.p.ate when your scheduled time comes? It would be nice to have philosophy readings on the radio to which one could tune in at any time, perhaps late at night when tired. But it may not be nice enough for you to want to give up one whole day of your own as a reader on the program. Whatever you want, can others create an obligation for you to do so by going ahead and starting the program themselves? In this case you can choose to forgo the benefit by not turning on the radio; in other cases the benefits may be unavoidable. If each day a different person on your street sweeps the entire street, must you do so when your time comes? Even if you don't care that much about a clean street? Must you imagine dirt as you traverse the street, so as not to benefit as a free rider? Must you refrain from turning on the radio to hear the philosophy readings? Must you mow your front lawn as often as your neighbors mow theirs? day. You would rather not have any of it and not give up a day than have it all and spend one of your days at it. Given these preferences, how can it be that you are required to partic.i.p.ate when your scheduled time comes? It would be nice to have philosophy readings on the radio to which one could tune in at any time, perhaps late at night when tired. But it may not be nice enough for you to want to give up one whole day of your own as a reader on the program. Whatever you want, can others create an obligation for you to do so by going ahead and starting the program themselves? In this case you can choose to forgo the benefit by not turning on the radio; in other cases the benefits may be unavoidable. If each day a different person on your street sweeps the entire street, must you do so when your time comes? Even if you don't care that much about a clean street? Must you imagine dirt as you traverse the street, so as not to benefit as a free rider? Must you refrain from turning on the radio to hear the philosophy readings? Must you mow your front lawn as often as your neighbors mow theirs?

At the very least one wants to build into the principle of fairness the condition that the benefits to a person from the actions of the others are greater than the costs to him of doing his share. How are we to imagine this? Is the condition satisfied if you do enjoy the daily broadcasts over the PA system in your neighborhood but would prefer a day off hiking, rather than hearing these broadcasts all year? For you to be obligated to give up your day to broadcast mustn't it be true, at least, that there is nothing you could do with a day (with that day, with the increment in any other day by s.h.i.+fting some activities to that day) which you would prefer to hearing broadcasts for the year? If the only way to get the broadcasts was to spend the day partic.i.p.ating in the arrangement, in order for the condition that the benefits outweigh the costs to be satisfied, you would have to be willing to spend it on the broadcasts rather than to gain any any other available thing. other available thing.

If the principle of fairness were modified so as to contain this very strong condition, it still would be objectionable. The benefits might only barely be worth the costs to you of doing your share, yet others might benefit from this this inst.i.tution much more than you do; they all treasure listening to the public broadcasts. As the person least benefited by the practice, are you obligated to do an equal amount for it? Or perhaps you would prefer that all cooperated in inst.i.tution much more than you do; they all treasure listening to the public broadcasts. As the person least benefited by the practice, are you obligated to do an equal amount for it? Or perhaps you would prefer that all cooperated in another another venture, limiting their conduct and making sacrifices for venture, limiting their conduct and making sacrifices for it. it. It is true, It is true, given given that they are not following your plan (and thus limiting what other options are available to you), that the benefits of their venture that they are not following your plan (and thus limiting what other options are available to you), that the benefits of their venture are are worth to you the costs of your cooperation. However, you do not wish to cooperate, as part of your plan to focus their attention on your alternative proposal which they have ignored or not given, in your view at least, its proper due. (You want them, for example, to read the Talmud on the radio instead of the philosophy they are reading.) By lending the inst.i.tution (their inst.i.tution) the support of your cooperating in it, you will only make it harder to change or alter. worth to you the costs of your cooperation. However, you do not wish to cooperate, as part of your plan to focus their attention on your alternative proposal which they have ignored or not given, in your view at least, its proper due. (You want them, for example, to read the Talmud on the radio instead of the philosophy they are reading.) By lending the inst.i.tution (their inst.i.tution) the support of your cooperating in it, you will only make it harder to change or alter.4 On the face of it, enforcing the principle of fairness is objectionable. You may not decide to give me something, for example a book, and then grab money from me to pay for it, even if I have nothing better to spend the money on. You have, if anything, even less reason to demand payment if your activity that gives me the book also benefits you; suppose that your best way of getting exercise is by throwing books into people's houses, or that some other activity of yours thrusts books into people's houses as an unavoidable side effect. Nor are things changed if your inability to collect money or payments for the books which unavoidably spill over into others' houses makes it inadvisable or too expensive for you to carry on the activity with this side effect. One cannot, whatever one's purposes, just act so as to give people benefits and then demand (or seize) payment. Nor can a group of persons do this. If you may not charge and collect for benefits you bestow without prior agreement, you certainly may not do so for benefits whose bestowal costs you nothing, and most certainly people need not repay you for costless-to-provide benefits which yet others others provided them. So the fact that we partially are ”social products” in that we benefit from current patterns and forms created by the mult.i.tudinous actions of a long string of long-forgotten people, forms which include inst.i.tutions, ways of doing things, and language (whose social nature may involve our current use depending upon Wittgensteinian matching of the speech of others), does not create in us a general floating debt which the current society can collect and use as it will. provided them. So the fact that we partially are ”social products” in that we benefit from current patterns and forms created by the mult.i.tudinous actions of a long string of long-forgotten people, forms which include inst.i.tutions, ways of doing things, and language (whose social nature may involve our current use depending upon Wittgensteinian matching of the speech of others), does not create in us a general floating debt which the current society can collect and use as it will.

Perhaps a modified principle of fairness can be stated which would be free from these and similar difficulties. What seems certain is that any such principle, if possible, would be so complex and involuted that one could not combine it with a special principle legitimating enforcement enforcement within a state of nature of the obligations that have arisen under it. Hence, even if the principle could be formulated so that it was no longer open to objection, it would not serve to obviate the need for other persons' within a state of nature of the obligations that have arisen under it. Hence, even if the principle could be formulated so that it was no longer open to objection, it would not serve to obviate the need for other persons' consenting consenting to cooperate and limit their own activities. to cooperate and limit their own activities.

PROCEDURAL RIGHTS.

Let us return to our independent. Apart from other nonindependents' fear (perhaps they will not be so worried), may not the person about to be punished defend himself? Must he allow the punishment to take place, collecting compensation afterwards if he can show that it was unjust? But show to whom? If he knows he's innocent, may he demand compensation immediately and enforce his rights to collect it? And so on. The notions of procedural rights, public demonstration of guilt, and the like, have a very unclear status within state-of-nature theory.

It might be said that each person has a right to have his guilt determined by the least dangerous of the known procedures for ascertaining guilt, that is, by the one having the lowest probability of finding an innocent person guilty. There are well-known maxims of the following form: better m m guilty persons go free than guilty persons go free than n n innocent persons be punished. For each innocent persons be punished. For each n n, each maxim will countenance an upper limit to the ratio m/n. m/n. It will say: better It will say: better m m, but not better m m + I. (A system may pick differing upper limits for different crimes.) On the greatly implausible a.s.sumption that we know each system of procedures' precise probability of finding an innocent person guilty, + I. (A system may pick differing upper limits for different crimes.) On the greatly implausible a.s.sumption that we know each system of procedures' precise probability of finding an innocent person guilty,5 and a guilty person innocent, we will opt for those procedures whose long-run ratio of the two kinds of errors comes closest, from below, to the highest ratio we find acceptable. It is far from obvious where to set the ratio. To say it is better that any number of guilty go free rather than that one innocent person be punished presumably would require and a guilty person innocent, we will opt for those procedures whose long-run ratio of the two kinds of errors comes closest, from below, to the highest ratio we find acceptable. It is far from obvious where to set the ratio. To say it is better that any number of guilty go free rather than that one innocent person be punished presumably would require not not having any system of punishment at all. For any system we can devise which sometimes does actually punish someone will involve some appreciable risk of punis.h.i.+ng an innocent person, and it almost certainly will do so as it operates on large numbers of people. And any system having any system of punishment at all. For any system we can devise which sometimes does actually punish someone will involve some appreciable risk of punis.h.i.+ng an innocent person, and it almost certainly will do so as it operates on large numbers of people. And any system S S can be transformed into one having a lower probability of punis.h.i.+ng an innocent person, for example, by conjoining to it a roulette procedure whe

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