21. “‘Triune’ Protection and its Implications for the Minimal State”


Abstract: Characterizing the libertarian ideal, Robert Nozick’s Minimal State has been a classic model wherein individual rights are taken for granted, from which state power is derivative, and legitimate only if it protects and reinforces individual rights. However, the “protection” is not so limited as it appears to be and the feedback from the state to individuals is not always positive. A microscopic analysis of the “protection” proffered by minimal state reveals three constituents (retribution, preemption and prevention or preventive restraints), with “preventive restraints” being the most controversial and extensive, and conflicting with the rights as “side-constraints”. By rejecting “utilitarianism of rights”, Nozick sets out to optimally secure rights, yet in so doing, he could hardly reconcile the clash between “constraints” and “restraints”, the inviolable rights supposed to be protected and the protective measures supposed to limit rights.