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• Literature of Liberty a Review of Contemporary Liberal Thought
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• I: Autonomy
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• V: Justice
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• VI: Property
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• Nozick, Taxes, and Property
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Nozick's Legal Code

Jethro K. Lieberman

• Legal Editor, Business Week magazine

“The Relativity of Injury.” Philosophy and Public Affairs 7 (1977): 60–73.

Robert Nozick's minimal state cannot, in fact, be limited to the functions that he prescribes for it.

This is so because the minimal state emerges before any substantive law, while at the same time it is restricted in its actions to pronouncing and enforcing judicial decisions. Without any preexisting definitions of crimes and torts provided in substantive law, Nozick's minimal state will have no definite criteria upon which to base its decisions.

Natural right—the right not be injured, according to one definition—is too empty and relative a notion to guide judicial decisions. Hence, the state will be forced to make law through interpretation without any restraint upon its powers. But only popular sovereignty can provide such a restraint. Accordingly, the state must be “controlled” democratically by those whom it governs. This is the source of its legitimacy. A priori limitations upon state activities (e.g., First Amendment rights) are justified only as instruments to protect popular sovereignty.

If this argument against Nozick is to be countered, there is a clear need for more exposition of the historical role of the common law and its significance as both an antecedent and an alternative to statutory law.