We discussed Nozick’s claim that rights are what he calls “side-constraints,” meaning that they constrain actions: no one can do anything that would violate another person’s rights.
Nozick’s first point was that we don’t treat rights as goals. I illustrated this with one of the stylized examples that are used to raise objections to utilitarianism: suppose the town sheriff can execute one innocent person to save ten innocents from dying in a riot that will happen if the innocent person is not executed.
On the face of it, utilitarianism has a quick answer: the sheriff should execute the innocent man. However, it will rarely be that easy. There could be many consequences of doing so that might have outweighed the ten innocent lives.
There is another point that utilitarians could make. The orphans are innocent too and, if they are really genuinely honestly cornered into making a choice between one innocent life and ten innocent lives, they are comfortable with using an old standby: arithmetic. The choice is terrible, but if it’s forced on you, it’s better to lose one life than it is to lose ten.
What if you still think it’s worse to kill one innocent than it is to allow ten innocents to die? Then Julian asked you to keep adjusting the numbers until the decision looks absurd: one vs. seven billion, say. At some point, you’re going to give in.
Still, Nozick pointed out that this is not the way we think about rights. We do not think that whether someone’s rights are to be respected or not depends on calculating the effects of doing so. And we are not willing to engage in the kinds of trade-offs that the utilitarians claim are sensible. (Which is not to say that we are right to resist making those trade-offs, just that we do so.)
He thought this showed that we do not treat rights as goals, where we would try to maximize achievement of the goal. Instead, we treat rights as what he called side-constraints.
Nozick’s attempts to explain why we have rights with this feature took him through several long and interesting digressions. He took it for granted that our rights must be based on some natural features that we all share and he went on a search for those features.
Nozick and Mill endorse quite similar principles. Mill’s harm principle holds that individuals should be left free to do anything that does not harm others:
“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection” (On Liberty, ch. 1, par. 9).
Similarly, Nozick holds that “there is no justified sacrifice of some of us for others” and that there is “a libertarian side constraint that prohibits aggression against another” (p. 33).
However their understandings of the state are quite different. Nozick thinks the state is limited to protecting rights. Mill has to think it is committed to maximizing overall utility, even if this comes at the cost of rights. Furthermore, Nozick maintains that individual rights are derived from features of the individuals themselves and thatone person’s rights cannot be balanced against another’s. Mill, on the other hand, derives individual rights from overall utility. If protecting individual liberty were not the best way of promoting the social good, Mill would have to reject it.