Phil 122 – Anderson
Supplementary Notes – Nozick’s
Conception of Basic Rights
Everyone has basic rights to life, liberty and property. Nozick maintains they are
inviolable; there are no justifiable grounds for violating them. He does allow for the
possibility of exceptions to avoid “catastrophic moral horror” (30), but does not specify
what such a catastrophe might be. This is an extreme position on rights. He gives three
reasons in support.
1. Basic political rights are always negative, never positive. What does this mean? All
such rights involve correlative duties. Your rights to life, liberty, etc. imply that everyone
else is under certain corresponding duties not to violate your rights. The difference
between negative and positive rights has to do with the sorts of duties people have.
Negative rights involve duties of non-interference only. As long as I do not deliberately
try to kill you (or cause bodily harm) or act in ways that put your life in jeopardy, I am
fulfilling my duty to respect your right to life. Positive rights, on the other hand, involve
duties that go beyond mere non-interference. If your right to life is a positive right, and
you are at risk of dying, I may have to devote some of my own time, effort or resources
towards keeping you alive. Just how much I may have to do can be a matter of debate,
but the point is I am morally obligated to do something, it is not optional like charity. To
take an oversimplified example: if rights are positive and you are starving and I have
extra food to spare, I am obligated to give you some food. If rights are merely negative,
it is my option whether to share some of my food with you and I can refuse to help
without being guilty of any wrongdoing.
It should be noted that the negative rights position need not be as callous as it may
appear. Nozick is well-aware that any normal human being has many positive
obligations toward others. His concern however is that whatever positive duties one has
toward others must rest on one’s prior consent. Personal autonomy is the paramount
value for Nozick.
2. Rights are side-constraints on our actions. What does this mean? Grant, for the sake
of argument, that all basic rights are negative. They still might sometimes conflict in
such a way that respecting one person’s right would require violating someone elses’
right. That would be fatal to Nozick’s theory that rights are inviolable. One likely area of
conflict can occur when responding to a deliberate violation of someone’s rights.
Suppose terrorists have hijacked an airliner with 100 passengers and crew on board.
They threaten to kill everyone on board unless authorities hand over to them some state
official whom they have been trying to kill for some time. Some persons will argue that
he ought to be turned over on the grounds that a loss of one life is obviously less
damaging than the loss of 100 lives; in essence, the overall consequences would be better.
Nozick disagrees. It is a mistake to regard the observance of rights as some kind of
abstract goal that can be quantitatively maximized. So one innocent persons’ rights
cannot be deliberately violated in order to avoid the violation (by others) of a larger
number of rights of some other innocent persons. This approach (which is shared by
many ethical theorists) is called nonconsequentialism.
3. In political contexts, basic rights are the only enforceable moral concerns. We value
other things besides the basic rights of persons, such as the aesthetic, historical or
environmental characteristics of things, but they cannot override basic rights. So, for
example, if the U.S. government sold the Grand Canyon to the highest bidder, who
proceeded to dam the canyon as a money-making venture, it would be a violation of his
basic property rights to try to stop him. Obviously Nozick needs a very strong argument
to show that property rights are as inviolable as this. The matter is addressed in Part II of
his work.
That basic rights are inviolable follows from points 1, 2, and 3 above.
Nozick also maintains that basic rights are natural rights. What does this mean? The
follow two characteristics are generally thought to be necessary, though perhaps not
sufficient, for classifying a right as natural:
(a) A natural right is a right all persons have as long as they are capable of choice. In
other words, they have it because they are human beings, not because they belong to
some privileged class or meet some other special qualification.
(b) A natural right is not created or conferred by certain voluntary acts of persons the way
promises and contracts are created. In effect, this is saying natural rights are neither manmade laws nor social conventions.
In contemporary philosophy, the question whether there are such things as natural rights
is controversial. Most ethical theorists make a place for rights, but not necessarily at the
most fundamental level in the way Nozick favors. What is Nozick’s argument for the
existence of natural rights to life, liberty and property as the most basic moral values?
One line of interpretation appears to be this: Nozick builds on Kant’s second formulation
of the categorical imperative: Never treat a person merely as a means; always treat them
as ends-in-themselves. This calls upon us always to treat people as rational, autonomous
beings who are capable of acting on principle. We fail to respect persons as ends-inthemselves when our actions impinge on them in important ways without first obtaining
their informed, rational consent. Thus the principle forbids, among other things,
coercion, manipulation and deceit.
Kant’s categorical imperative does not, it should be noted, force us to the conclusion that
the only rights people have are negative rights. How does Nozick get to that conclusion?
He elaborates on the kantian conception of persons as rational, autonomous beings. It is
an implication of this conception that persons have the capacity to form long-term plans
for their life, to pursue goals that matter greatly to them and that give their life meaning
(even if some of those goals aren’t successfully achieved). A meaningful life is a “selfshaping” life. (48-51) Nozick apparently believes – he does not really argue for it – that a
self-shaping life is impossible outside of a libertarian system of basic, strictly negative
rights.