1 See, for example, Lyons, David B., “Rights against Humanity”, The Philosophical Review 85 (04 1976), 208–215,CrossRefGoogle Scholar especially 210–211 where Lyons offers a compelling case against the idea that individuals in a state of nature have a general right to punish. Lyons is one of the few commentators who marks out clearly how Nozick's derivation of the minimal state is thoroughly dependent on Locke's doctrine of punishment. Wolff, Robert Paul, “Robert Nozick's Derivation of the Minimal State”, Arizona Law Review 19 (1977), 7–30Google Scholar also nicely shows the role of individuals' supposed right to punish in his schematic outline of Nozick's argument for the minimal state. Note especially 8–9.

2 Here, and throughout, the notion of a Lockean state-of-nature theory is used in a way that follows Nozick's reading: that any and every right that a state justifiably possesses must have been transferred from the rights individuals have in a natural condition.

3 Numbers imbedded in the text preceded by “N” refer to Nozick, Robert, Anarchy State and Utopia (New York: Basic Books, 1974).Google Scholar Those preceded by “L” refer to numbered sections of Locke's, John “Second Treatise” in Two Treatises of Government, ed. Cook, T. (New York: Hafner, 1947)Google Scholar.

4 Following Nozick the shorthand expression of a “general right to punish” shall be understood to refer to the right to punish any and every wrongdoer irrespective of particular ties between individuals, the right of all to punish all. The label “specific right to punish” refers to the right one might have to punish those who harm oneself or wrong individuals with whom one is closely related, e.g. family and friends.

5 The precise reckoning of the boundaries of this specific right is not at issue here: for convenience we adopt the not unnatural idea that fellowship and blood ties might be used to stake out the limits of this right. Perhaps someone else would choose other devices for restricting the scope of the right to punish (e.g. ethnic origins, geography and so on). But this debate is best left for another place. Again: the sole point of considering the specific right to punish is that it has a range that is strictly limited in contrast to that general right of Locke and Nozick.

6 To be sure, how near unity the threat of harm must be before the specific rights of all the members of the community can be invoked will be (as we say) a matter of judgment. Reckoning will depend on factors such as the size of the population and the kind of crime. For example, a single assault in a community of five individuals might well be sufficient to make the claim of threat rational and non-neurotic. In a community the size of New York City a reasonable claim of threat will, of course, require evidence of repeated serious transgression.

7 This social dimension of punishment is cogently captured by Feinberg, Joel in “The Expressive Function of Punishment”, in his Doing and Deserving (Princeton: Princeton University Press, 1970), 95–118Google Scholar.

8 This substitition of “duty” for “right” can appear to be entirely arbitrary until one appreciates Laslett's note to L 10: “Elrington [the editor of the 1798 edition of the Second Treatise] comments that throughout the whole of this treatise Locke's ‘zeal for liberty has very frequently led him to speak of men's duties as rights which they may exercise or renounce at pleasure‘”, Two Treatises of Government, ed. Laslett, P. (Cambridge: Cambridge University Press, 2nd ed., 1967), 291nGoogle Scholar.

9 This point is deftly established in Thomas Cook's note to section 9 of the “Second Treatise”, 125n.

10 However, in fairness to Nozick, it should be noted that he does say of a similar case that “As time passes, the likelihood increases that others would have come across the substance; upon this fact might be based a limit to one's property right in the substance …” (N 181).

11 See the completely commanding case by Held, Virginia, “John Locke on Robert Nozick”, Social Research 43 (Spring 1976), 169–195,Google Scholar especially 169–175.

12 The anonymous referee for Dialogue provided a number of valuable criticisms of an earlier draft. Assistance from the Social Sciences and Humanities Research Council of Canada and the University of Lethbridge Research Committee is gratefully acknowledged.