Anarchy, State and Utopia

Chapter 2

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Perhaps a few words should be said about pollution-the dumping of negative effects upon other people"s property such as their houses, clothing, and lungs, and upon unowned things which people benefit from, such as a clean and beautiful sky. I shall discuss only effects on property. It would be undesirable, and is not excluded by anything I say below, for someone to channel all of his pollution effects high above anyone"s property volume, making the sky a murky grey-green. Nothing is gained by trying to transform the second type of case into the first by saying, for example, that someone who changes the way the sky looks dumps effects on one"s eyes. What follows in this note is incomplete in that it does not treat the second type of case.

Since it would exclude too much to forbid all polluting activities, how might a society ( (socialist or capitalist) decide which polluting activities to forbid and which to permit? Presumably, it should permit those polluting activities whose benefits are greater than their costs, decide which polluting activities to forbid and which to permit? Presumably, it should permit those polluting activities whose benefits are greater than their costs, including within their costs their polluting effects. including within their costs their polluting effects. The most feasible theoretical test of this net benefit is whether the activity The most feasible theoretical test of this net benefit is whether the activity could could pay its way, whether those who benefit from it would be willing to pay enough to cover the costs of compensating those ill affected by it. pay its way, whether those who benefit from it would be willing to pay enough to cover the costs of compensating those ill affected by it. ( (Those who favor any worthy activity that fails this test can make charitable donations to it. ) ) For example, certain modes of airplane service impose noise pollution on homes surrounding airports. In one way or another For example, certain modes of airplane service impose noise pollution on homes surrounding airports. In one way or another ( (through lower resale value, lower rent obtainable for apartments, and so on), the economic value of these homes is diminished. Only if the benefits to air pa.s.sengers are greater than these costs to airport neighbors should the noisier mode of transportation service go on. A society must have some way to determine whether the benefits do outweigh the costs. Secondly, it must decide how the costs are to be allocated. It can let them fall where they happen to fall: in our example, on the local homeowners. Or it can try to spread the cost throughout the society. Or it can place it on those who benefit from the activity: in our example, airports, airlines, and ultimately the air pa.s.senger. The last, if feasible, seems fairest. If a polluting activity is to be allowed to continue on the ground that its benefits outweigh its costs (including its polluting costs). then those who benefit actually should compensate those upon whom the pollution costs are initially thrown. The compensation might encompa.s.s paying for the costs of devices to lessen the initial pollution effects. In our example, airlines or airports might pay for soundproofing a house and then pay compensation for how much less the economic value of that house is than the value of the original unsoundproofed house in the neighborhood as it was without the additional noise. the economic value of these homes is diminished. Only if the benefits to air pa.s.sengers are greater than these costs to airport neighbors should the noisier mode of transportation service go on. A society must have some way to determine whether the benefits do outweigh the costs. Secondly, it must decide how the costs are to be allocated. It can let them fall where they happen to fall: in our example, on the local homeowners. Or it can try to spread the cost throughout the society. Or it can place it on those who benefit from the activity: in our example, airports, airlines, and ultimately the air pa.s.senger. The last, if feasible, seems fairest. If a polluting activity is to be allowed to continue on the ground that its benefits outweigh its costs (including its polluting costs). then those who benefit actually should compensate those upon whom the pollution costs are initially thrown. The compensation might encompa.s.s paying for the costs of devices to lessen the initial pollution effects. In our example, airlines or airports might pay for soundproofing a house and then pay compensation for how much less the economic value of that house is than the value of the original unsoundproofed house in the neighborhood as it was without the additional noise.

When each of the victims of pollution suffers great costs, the usual system of tort liability (with minor modifications) suffices to yield this result. Enforcing other people"s property rights will, in these cases, suffice to keep pollution in its proper place. But the situation is changed if individual polluters have widespread and individually minuscule effects. If someone imposes the equivalent of a twenty-cent cost on each person in the United States, it will not pay for any one person to sue him, despite the great total of the cost imposed. If many persons similarly impose tiny costs on each individual, the total costs to an individual then may be significant. But since no single source significantly affects one individual, it still will not pay any individual to sue any individual polluter. It is ironic that pollution is commonly held to indicate defects in the privateness of a system of private property, whereas the problem of pollution is that high transaction costs make it difficult to enforce the private property rights of the victims of pollution. One solution might be to allow group suits against polluters. Any lawyer or law firm may act for the general public and sue, being required to distribute a proportion of the amount collected to each member of the included public who claims it from them. (Since different people are differently affected by the same polluting acts, the lawyers might be required to distribute different amounts to those in different specified groups. suffices to yield this result. Enforcing other people"s property rights will, in these cases, suffice to keep pollution in its proper place. But the situation is changed if individual polluters have widespread and individually minuscule effects. If someone imposes the equivalent of a twenty-cent cost on each person in the United States, it will not pay for any one person to sue him, despite the great total of the cost imposed. If many persons similarly impose tiny costs on each individual, the total costs to an individual then may be significant. But since no single source significantly affects one individual, it still will not pay any individual to sue any individual polluter. It is ironic that pollution is commonly held to indicate defects in the privateness of a system of private property, whereas the problem of pollution is that high transaction costs make it difficult to enforce the private property rights of the victims of pollution. One solution might be to allow group suits against polluters. Any lawyer or law firm may act for the general public and sue, being required to distribute a proportion of the amount collected to each member of the included public who claims it from them. (Since different people are differently affected by the same polluting acts, the lawyers might be required to distribute different amounts to those in different specified groups.) The lawyers" income would come from those who do not write in to claim their due, and from earnings of the money of those who do not claim promptly. Seeing some receiving great income in this way, others would go into business as "public"s agents, " charging a yearly fee to collect and turn over to their clients all the pollution payments to which they were ent.i.tled. Since such a scheme gives great advantage to a lawyer who acts fast, it insures that many would be alert to protect the interests of those polluted. Alternative schemes might be devised to allow several to sue simultaneously for distinct sets of persons in the public, It is true that these schemes place great weight on the court system, but they should be as manageable as the operation of any government bureaucracy in determining and distributing costs. The lawyers" income would come from those who do not write in to claim their due, and from earnings of the money of those who do not claim promptly. Seeing some receiving great income in this way, others would go into business as "public"s agents, " charging a yearly fee to collect and turn over to their clients all the pollution payments to which they were ent.i.tled. Since such a scheme gives great advantage to a lawyer who acts fast, it insures that many would be alert to protect the interests of those polluted. Alternative schemes might be devised to allow several to sue simultaneously for distinct sets of persons in the public, It is true that these schemes place great weight on the court system, but they should be as manageable as the operation of any government bureaucracy in determining and distributing costs.z

To arrive at an acceptable principle of compensation, we must delimit the cla.s.s of actions covered by the claim. Some types of action are generally done, play an important role in people"s lives, and are not forbidden to a person without seriously disadvantaging him. One principle might run: when an action of this type is forbidden to someone because it might might cause harm to others and is especially dangerous when he does it, then those who forbid in order to gain increased security for themselves must compensate the person forbidden for the disadvantage they place him under. This principle is meant to cover forbidding the epileptic to drive while excluding the cases of involuntary Russian roulette and the special manufacturing process. The idea is to focus on important activities done by almost all, though some do them more dangerously than others. Almost everyone drives a car, whereas playing Russian roulette or using an especially dangerous manufacturing process is not a normal part of almost everyone"s life. cause harm to others and is especially dangerous when he does it, then those who forbid in order to gain increased security for themselves must compensate the person forbidden for the disadvantage they place him under. This principle is meant to cover forbidding the epileptic to drive while excluding the cases of involuntary Russian roulette and the special manufacturing process. The idea is to focus on important activities done by almost all, though some do them more dangerously than others. Almost everyone drives a car, whereas playing Russian roulette or using an especially dangerous manufacturing process is not a normal part of almost everyone"s life.

Unfortunately this approach to the principle places a very great burden on the scheme used to cla.s.sify actions. The fact that there is one one description of a person"s action that distinguishes it from the acts of others does description of a person"s action that distinguishes it from the acts of others does not not cla.s.sify it as unusual and so outside the sphere of application of the principle. Yet it would be too strong to say, on the other hand, that any action falling under some description which almost every other person also instantiates is thereby shown to be usual and to fall within the compa.s.s of the principle. For unusual activities also fall under cla.s.sify it as unusual and so outside the sphere of application of the principle. Yet it would be too strong to say, on the other hand, that any action falling under some description which almost every other person also instantiates is thereby shown to be usual and to fall within the compa.s.s of the principle. For unusual activities also fall under some some descriptions that cover actions people normally do. Playing Russian roulette is a more dangerous way of "having fun," which others are allowed to do; and using the special manufacturing process is a more dangerous way of "earning a living." Almost any two actions can be construed as the same or different, depending upon whether they fall into the same or different subcla.s.ses in the background cla.s.sification of actions. This possibility of diverse descriptions of actions prevents easy application of the principle as stated. descriptions that cover actions people normally do. Playing Russian roulette is a more dangerous way of "having fun," which others are allowed to do; and using the special manufacturing process is a more dangerous way of "earning a living." Almost any two actions can be construed as the same or different, depending upon whether they fall into the same or different subcla.s.ses in the background cla.s.sification of actions. This possibility of diverse descriptions of actions prevents easy application of the principle as stated.

If these questions could be clarified satisfactorily, we might wish to extend the principle to cover some unusual actions. If using the dangerous process is the only way that that person can earn a living (and if playing Russian roulette on another with a gun of 100,000 chambers is the only way person can earn a living (and if playing Russian roulette on another with a gun of 100,000 chambers is the only way that that person can have any enjoyment at all-I grant these are both extravagant suppositions), then perhaps this person should be compensated for the prohibition. By having person can have any enjoyment at all-I grant these are both extravagant suppositions), then perhaps this person should be compensated for the prohibition. By having the the only way he can earn a living forbidden to him, he is disadvantaged as compared to the normal situation, whereas someone is not disadvantaged relative to the normal situation by having his most profitable alternative forbidden to him. A disadvantage as compared to the normal situation differs from being made worse off than one otherwise would be. One might use a theory of disadvantage, if one had it, in order to formulate a "Principle of Compensation": those who are only way he can earn a living forbidden to him, he is disadvantaged as compared to the normal situation, whereas someone is not disadvantaged relative to the normal situation by having his most profitable alternative forbidden to him. A disadvantage as compared to the normal situation differs from being made worse off than one otherwise would be. One might use a theory of disadvantage, if one had it, in order to formulate a "Principle of Compensation": those who are disadvantaged disadvantaged by being forbidden to do actions that only by being forbidden to do actions that only might might harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others. If people"s increased security from a contemplated prohibition would benefit them less than those prohibited would be disadvantaged, then potential prohibitors will be unable or unwilling to make sufficiently great compensatory payments; so the prohibition, as is proper in this case, will not be imposed. harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others. If people"s increased security from a contemplated prohibition would benefit them less than those prohibited would be disadvantaged, then potential prohibitors will be unable or unwilling to make sufficiently great compensatory payments; so the prohibition, as is proper in this case, will not be imposed.

The principle of compensation covers the cases falling under our earlier statement which involved messy problems about cla.s.sifying actions. It does not avoid completely similar questions concerning the circ.u.mstances under which someone is especially disadvantaged. But as they arise here, the questions are easier to handle. For example, is the manufacturer who is prevented from pursuing his best alternative (though having other profitable alternatives) especially disadvantaged if everyone else may pursue their best alternatives, which happen not to be dangerous? Clearly not.

The principle of compensation requires that people be compensated for having certain risky activities prohibited to them. It might be objected that either you have the right to forbid these people"s risky activities or you don"t. If you do, you needn"t compensate the people for doing to them what you have a right to do; and if you don"t, then rather than formulating a policy of compensating people for your unrightful forbidding, you ought simply to stop it. In neither case does the appropriate course seem to be to forbid and then compensate. But the dilemma, "either you have a right to forbid it so you needn"t compensate, or you don"t have a right to forbid it so you should stop," is too short. It may be that you do have a right to forbid an action but only provided you compensate those to whom it is forbidden.

How can this be? Is this situation one of those discussed earlier, in which a border crossing is permitted provided that compensation is paid? If so, there would be some boundary line that delimits forbidding people to do certain risky acts, which it would be permissible to cross if the party trespa.s.sed upon were compensated. Even if so, since in the cases under discussion we can identify in advance the particular persons being forbidden, why are we not required instead to negotiate a contract with them whereby they agree not to do the risky act in question? Why wouldn"t we have to offer them an incentive, or hire them, or bribe them to refrain from doing the act? In our earlier discussion of border crossing we noted the absence of any compelling theory of just price or compelling reason why all of the benefits of voluntary exchange should go to one of the parties. Which of the admissible points on the contract curve was to be selected, we said, was a question appropriately left to the parties involved. This consideration favored prior negotiation over posterior payment of full compensation. In the present subcla.s.s of cases, however, it does does seem appropriate uniformly to select one extremity of the contract curve. Unlike exchanges in which both parties benefit and it is unclear how these benefits are to be divided, in negotiations over one party"s abstaining from an action that will or might endanger another person, all the first party need receive is full compensation. (The payment the first party could negotiate for abstaining, were he allowed to perform the action, is seem appropriate uniformly to select one extremity of the contract curve. Unlike exchanges in which both parties benefit and it is unclear how these benefits are to be divided, in negotiations over one party"s abstaining from an action that will or might endanger another person, all the first party need receive is full compensation. (The payment the first party could negotiate for abstaining, were he allowed to perform the action, is not not part of his loss due to the prohibition for which he must be compensated.) part of his loss due to the prohibition for which he must be compensated.)

PRODUCTIVE EXCHANGE.

If I buy a good or service from you, I benefit from your activity; I am better off due to it, better off than if your activity wasn"t done or you didn"t exist at all. (Ignore the complication that someone once might sell a bona fide good to another person he generally harms.) Whereas if I pay you for not harming me, I gain nothing from you that I wouldn"t possess if either you didn"t exist at all or existed without having anything to do with me. (This comparison wouldn"t do if I deserved deserved to be harmed by you.) Roughly, to be harmed by you.) Roughly, productive activities productive activities are those that make purchasers better off than if the seller had nothing are those that make purchasers better off than if the seller had nothing at all at all to do with them. More precisely, this provides a necessary condition for an unproductive activity, but not a sufficient condition. If your next-door neighbor plans to erect a certain structure on his land, which he has a right to do, you might be better off if he didn"t exist at all. (No one else would choose to erect that monstrosity.) Yet purchasing his abstention from proceeding with his plans will be a productive exchange. to do with them. More precisely, this provides a necessary condition for an unproductive activity, but not a sufficient condition. If your next-door neighbor plans to erect a certain structure on his land, which he has a right to do, you might be better off if he didn"t exist at all. (No one else would choose to erect that monstrosity.) Yet purchasing his abstention from proceeding with his plans will be a productive exchange.16 Suppose, however, that the neighbor has no desire to erect the structure on the land; he formulates his plan and informs you of it solely in order to sell you his abstention from it. Such an exchange would not be a productive one; it merely gives you relief from something that would not threaten if not for the possibility of an exchange to get relief from it. The point generalizes to the case where the neighbor"s desire does not focus only upon you. He may formulate the plan and peddle his abstention around to several neighbors. Whoever purchases it will be "served" unproductively. That such exchanges are not productive ones, and do not benefit each party, is shown by the fact that if they were impossible or forceably prohibited so that everyone knew they couldn"t be done, one of the parties to the potential exchange would be no worse off. A strange kind of productive exchange it would be whose forbidding leaves one party no worse off! (The party who does not give up anything for the abstention, or need not because the neighbor has no other motive to proceed with the action, is left better off.) Though people value a blackmailer"s silence, and pay for it, his being silent is not a productive activity. His victims would be as well off if the blackmailer did not exist at all, and so wasn"t threatening them. Suppose, however, that the neighbor has no desire to erect the structure on the land; he formulates his plan and informs you of it solely in order to sell you his abstention from it. Such an exchange would not be a productive one; it merely gives you relief from something that would not threaten if not for the possibility of an exchange to get relief from it. The point generalizes to the case where the neighbor"s desire does not focus only upon you. He may formulate the plan and peddle his abstention around to several neighbors. Whoever purchases it will be "served" unproductively. That such exchanges are not productive ones, and do not benefit each party, is shown by the fact that if they were impossible or forceably prohibited so that everyone knew they couldn"t be done, one of the parties to the potential exchange would be no worse off. A strange kind of productive exchange it would be whose forbidding leaves one party no worse off! (The party who does not give up anything for the abstention, or need not because the neighbor has no other motive to proceed with the action, is left better off.) Though people value a blackmailer"s silence, and pay for it, his being silent is not a productive activity. His victims would be as well off if the blackmailer did not exist at all, and so wasn"t threatening them.aa And they would be no worse off if the exchange were known to be absolutely impossible. On the view we take here, a seller of such silence could legitimately charge only for what he forgoes by silence. What he forgoes does not include the payment he could have received to abstain from revealing his information, though it does include the payments others would make to him to reveal the information. So someone writing a book, whose research comes across information about another person which would help sales if included in the book, may charge another who desires that this information be kept secret (including the person who is the subject of the information) for refraining from including the information in the book. He may charge an amount of money equal to his expected difference in royalties between the book containing this information and the book without it; he may not charge the best price he could get from the purchaser of his silence. And they would be no worse off if the exchange were known to be absolutely impossible. On the view we take here, a seller of such silence could legitimately charge only for what he forgoes by silence. What he forgoes does not include the payment he could have received to abstain from revealing his information, though it does include the payments others would make to him to reveal the information. So someone writing a book, whose research comes across information about another person which would help sales if included in the book, may charge another who desires that this information be kept secret (including the person who is the subject of the information) for refraining from including the information in the book. He may charge an amount of money equal to his expected difference in royalties between the book containing this information and the book without it; he may not charge the best price he could get from the purchaser of his silence.ab Protective services are productive and benefit their recipient whereas the "protection racket" is not productive. Being sold the racketeers" mere abstention from harming you makes your situation no better than if they had nothing to do with you at all. Protective services are productive and benefit their recipient whereas the "protection racket" is not productive. Being sold the racketeers" mere abstention from harming you makes your situation no better than if they had nothing to do with you at all.

Our earlier discussion of dividing the benefits of voluntary exchange, thus, should be narrowed so as to apply only to those exchanges where both parties do benefit in the sense of being the recipients of productive activities. Where one of the parties does not so benefit and is unproductively "served," it is fair that he merely barely compensates the other, if if any compensation is due the other party at all. What of those cases where only the first condition of unproductive exchange is satisfied, not the second: any compensation is due the other party at all. What of those cases where only the first condition of unproductive exchange is satisfied, not the second: X X is no better off as a result of the exchange than if is no better off as a result of the exchange than if Y Y didn"t exist at all, but didn"t exist at all, but Y Y does have some motive other than selling abstention. If from does have some motive other than selling abstention. If from Y Y"s abstention from an activity X X gains only a lessened probability of having his own border crossed (a crossing whose intentional performance is prohibited), then gains only a lessened probability of having his own border crossed (a crossing whose intentional performance is prohibited), then Y Y need be compensated only for the disadvantages imposed upon him by the prohibition of only those activities whose risk is serious enough to justify prohibition in this manner. need be compensated only for the disadvantages imposed upon him by the prohibition of only those activities whose risk is serious enough to justify prohibition in this manner.

We have rejected the view that the prohibition of risky activities is illegitimate, that through prior agreements and open negotiations people must be induced to agree voluntarily to refrain from the activities. But we should not construe our case merely as compensation for crossing a border that protects another"s risky action, with the requirement of prior negotiation obviated by the special nature of the case (it doesn"t involve any productive exchange). For this does not explain why all are not returned to the indifference curve they would occupy were it not for the prohibition; only those disadvantaged disadvantaged by a prohibition are to be compensated, and they are to be compensated by a prohibition are to be compensated, and they are to be compensated only only for their disadvantages. If a prohibition of risky acts had two separate effects on someone, the first making him worse off though not disadvantaged as compared to others and the second disadvantaging him, the principle of compensation would require compensation to be paid only for the second. Unlike an ordinary border crossing, the compensation in these cases need not raise the person to the position he was in before he was interfered with. In order to view the compensation under the principle of compensation as ordinary compensation for a border crossing, one might try to redefine or relocate the border so that it is crossed only when someone is disadvantaged. But it is more perspicuous not to distort our view of this compensation situation by a.s.similating it to another one. for their disadvantages. If a prohibition of risky acts had two separate effects on someone, the first making him worse off though not disadvantaged as compared to others and the second disadvantaging him, the principle of compensation would require compensation to be paid only for the second. Unlike an ordinary border crossing, the compensation in these cases need not raise the person to the position he was in before he was interfered with. In order to view the compensation under the principle of compensation as ordinary compensation for a border crossing, one might try to redefine or relocate the border so that it is crossed only when someone is disadvantaged. But it is more perspicuous not to distort our view of this compensation situation by a.s.similating it to another one.

That it is not to be a.s.similated to the border-crossing sort of compensation situation does not, of course, foreclose deriving the principle of compensation from deeper principles. For our purposes in this essay we need not do this; nor need we state the principle exactly. We need only claim the correctness of some principles, such as the principle of compensation, requiring those imposing a prohibition on risky activities to compensate those disadvantaged disadvantaged through having these risky activities prohibited to them. I am not completely comfortable presenting and later using a principle whose details have not been worked out fully, even though the undeveloped aspects of the principle do not appear to be relevant to the issues upon which we shall wield it. With some justice, I think, I could claim that it is all right as a beginning to leave a principle in a somewhat fuzzy state; the primary question is whether something like it will do. This claim, however, would meet a frosty reception from those many proponents of another principle scrutinized in the next chapter, if they knew how much harder I shall be on their principle than I am here on mine. Fortunately, they don"t know that yet. through having these risky activities prohibited to them. I am not completely comfortable presenting and later using a principle whose details have not been worked out fully, even though the undeveloped aspects of the principle do not appear to be relevant to the issues upon which we shall wield it. With some justice, I think, I could claim that it is all right as a beginning to leave a principle in a somewhat fuzzy state; the primary question is whether something like it will do. This claim, however, would meet a frosty reception from those many proponents of another principle scrutinized in the next chapter, if they knew how much harder I shall be on their principle than I am here on mine. Fortunately, they don"t know that yet.

CHAPTER 5.

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 punishing an innocent person or overpunishing 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 punishing 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 shifting 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 punishing 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 punishing 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 punishing an innocent person, for example, by conjoining to it a roulette procedure whe

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