A moral dilemma from the popular TV show “Breaking Bad” illustrates a critique Amartya Sen made of Robert Nozick’s Anarchy, State, and Utopia and the reason why the refutation fails. In On Ethics and Economics, Sen makes the following critique of Nozick’s libertarian philosophy (heavily paraphrased because the book has yet to be unpacked, and Google Books was no help):
Suppose A knew that C was about to murder D, but needed a car to try to stop the murder. B is nearby in a car. On Nozick’s theory, it would be permissible for A to try to stop the murder without violating anyone else’s rights, but impermissible for A to to try to stop the murder by commandeering B’s car.
Sen seems to think that Nozick’s view is incoherent or at least implausible. Nozick’s theory forbids minor rights violations to prevent major ones. Of course, the theory is incoherent only if one adopts the premise that whatever is morally good must be maximized, a premise that Sen leaves implicit. Sen’s critique suggests a “consequentialism of rights”: always act so as to minimize the number of rights violations.
But the central plot twist of the “Breaking Bad” series shows us why consequentialism of rights is less plausible than a strict deontological view. In this plot twist (writing vaguely to avoid spoilers), the two main characters of the show murder an innocent man because: 1) they know a third person is about to murder them, and 2) they know this third person will not murder them if and only if the innocent man they kill is dead. Both act-utilitarianism and consequentialism of rights ratify their decision: they murdered one innocent in order to save two innocent (let’s suppose) lives from murder.
Intuitively, however, what they did was wrong. Murdering one innocent person to prevent two murders does not seem justifiable. The deontological, Nozickian view is more plausible.
A moderate rights-consequentialist might respond by revising the theory so that rights violations can never be justified to prevent rights violations “of the same kind or lesser.” This revision seems ad hoc and unlikely to work in such a way as both to salvage the theory and to distinguish it from non-absolutist deontology of the sort that Nozick favored. What counts as a “lesser” rights violation? Is rape justified to prevent murder? Armed robbery to prevent murder? Simple assault to prevent murder? As Locke noted in the Second Treatise, any aggression on a person’s body or immediate property poses a threat of murder and legitimate retaliation. After all, once the armed robber (or whatever) has you in his power, what is to prevent him from murdering you? So in the end the theory seems to collapse to something like “petty theft, fraud, embezzlement, and like offenses without risk of a physical encounter may be justified to prevent bodily assaults.”
But this position still doesn’t seem plausible in many cases. E.g., “I’m going to steal thousands of dollars from my employer so that I can hire a bodyguard because I’m afraid that someone, somewhere might assault me.” That doesn’t seem right. And where the position yields conclusions that accord with intuition — “It’s OK to break into a closed gun store to grab a weapon to defend my family who are currently being assaulted” or “It’s OK to steal a megaweapon from a mad scientist to fend off an alien invasion” — non-absolutist deontology can also yield the intuitive conclusion by resort to concepts such as situational monopoly (discussed extensively in Anarchy, State, and Utopia under the rubric of the Lockean Proviso) or hypothetical consent (no owner could reasonably deny emergency access, so long as compensation is provided).
In summary, a strict but flexible “side constraints” morality like Nozick’s provides more intuitive solutions to moral dilemmas across the board than does either utilitarianism or consequentialism-of-rights.