Coercion, Authority, and
Democracy
by
Grahame Booker
A thesis
presented to the University of Waterloo
in fulfillment of the
thesis requirement for the degree of
Doctor of Philosophy
in
Philosophy
Waterloo, Ontario, Canada, 2009
c Grahame Booker 2009
Author’s Declaration
I hereby declare that I am the sole author of this thesis. This is a true copy of the
thesis, including any required final revisions, as accepted by my examiners.
I understand that my thesis may be made electronically available to the public.
ii
Abstract
As a classical liberal, or libertarian, I am concerned to advance liberty and
minimize coercion. Indeed on this view liberty just is the absence of coercion or costs
imposed on others. In order to better understand the notion of coercion I discuss
Robert Nozick’s classic essay on the subject as well as more recent contributions.
I then address the question of whether law is coercive, and respond to Edmundson
and others who think that it isn’t. Assuming that the law is in fact coercive,
there is still a question,as with all coercive acts, as to whether that coercion is
justified. Edmundson thinks that this places a special burden on the state of
justifying its existence, whereas it simply places the same burden on the state
as anyone else. What I reject is the longstanding doctrine of Staatsräson, namely
that the state is not subject to the same moral rules as its subjects. With respect
to the relation of morality to law, Edmundson thought that another of the fallacies
of which philosophical anarchists were guilty was that of assuming that there was
a sphere of morality where law had no business. On the contrary, our concern is
with spheres of law which appear to have little to do with morality, which is to say
laws against wrongs of the malum prohibitum variety, as opposed to wrongs which
are malum in se.
I then turn to a matter with which Edmundson begins his study, namely how it
is that states acquire the authority to do what they do, namely coerce their subjects.
While the fact that the philosopher’s stone of political obligation has proved rather
elusive may mean that a legitimate state lacks the authority to demand obedience
pure and simple, Edmundson contends that it can at the very least demand that
we do not interfere in the administration of justice. I argue that this attempt to
sidestep the justification of the authority of the state fails and that we seem in the
end to be having to take the state’s word for it that we must do X on pain of penalty
P. Nor, as I go on to argue, is it any help to appeal to democracy to remedy a failed
justification of the authority of the state. There either is a moral justification of
state coercion in order to prevent harm to innocent subjects, or there isn’t, and
this holds,if it does, not only at the level of individuals, but also at the level of the
state, regardless of its constitutional form.
After concluding that the attempts of Edmundson and others to refute the
anarchic turn in recent political philosophy have failed, it would seem that the
withering away of the state foreseen in Marx’s eschatology is not as improbable as
maybe it once appeared.
iii
Acknowledgements
One of the benefits of leaving it till later in life to set down some thoughts about
the state is that one has a chance to listen to many eminent people who in some
way or another have influenced what I have had to say here. It also means that the
list could be very long indeed, so I shall be rather selective in those that I mention.
At least one predates my arrival in Canada 40 years ago, namely, Julius Stone
who lectured at Sydney on “States, Men and International Justice.” A decade
later, I was fortunate enough to be offered a SSHRC fellowship at Oxford where I
heard Ron Dworkin and Charles Taylor on liberalism, John Mackie on Rawls, John
Rawls himself on Sidgwick, and first learnt something about prisoners’ dilemmas
from Derek Parfitt. Dinner meetings of the Univ. Bentham Society gave me the
opportunity to meet such luminaries as A.J. Ayer, Elizabeth Anscombe, Gareth
Evans, John Finnis and Saul Kripke.
In more recent years I have attended many interesting gatherings held under
the auspices of the Social Philosophy and Policy Center at Bowling Green State,
notably “Natural Rights Liberalism from Locke to Nozick.” I was also grateful to
have the opportunity to discuss the proposal for the present work at the Austrian
Scholars Conference at the Mises Institute in 2005. I have also benefited from
discussions with visiting scholars in the Waterloo Philosophy Department such as
Daniel Shapiro, John Kekes and Russell Hardin. Indeed I am grateful to the Department for their help and encouragement when I decided to use my retirement
to pick up from where I had left off many years ago.
Special thanks are due to my supervisor, Jan Narveson, who in his own retirement still sets a pace I have a lot of trouble keeping up with. I have been greatly
influenced by his work both in Philosophy and chamber music, where his celebrated
series offers some of the best music to be heard anywhere. Thanks also to fellow
student, Ethan Wilding, who helped me overcome my rudimentary computer skills;
and to my readers Jack Sanders, Brian Orend and Colin Farrelly, who had to contend with a longer than average essay. Finally, my ever patient family who tolerated
the various research episodes I managed to fit in to my teaching career.
iv
Contents
1 Introduction
1
2 Coercion
5
2.1
2.2
2.3
Nozick on coercion . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
2.1.1
Threats v. Offers . . . . . . . . . . . . . . . . . . . . . . . .
7
2.1.2
The drug addict . . . . . . . . . . . . . . . . . . . . . . . . .
7
2.1.3
The drowning man . . . . . . . . . . . . . . . . . . . . . . .
8
2.1.4
A fair price? . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
2.1.5
Nozick’s slave case . . . . . . . . . . . . . . . . . . . . . . .
11
2.1.6
Blackmail . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
2.1.7
Threats/Warnings . . . . . . . . . . . . . . . . . . . . . . .
13
2.1.8
Rhodes on Coercion . . . . . . . . . . . . . . . . . . . . . .
14
Edmundson and the supposed non-coerciveness of the state. . . . .
17
2.2.1
Plea bargains and coercion . . . . . . . . . . . . . . . . . . .
17
2.2.2
Sea rescue and coercion
. . . . . . . . . . . . . . . . . . . .
19
2.2.3
The coerciveness of law and the presumption of liberty . . .
25
2.2.4
Malum prohibitum v. malum in se. . . . . . . . . . . . . . .
26
2.2.5
The coerciveness of the state’s monopoly on enforcement . .
28
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
3 Authority
3.1
3.2
32
Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
3.1.1
The appeal to estoppel . . . . . . . . . . . . . . . . . . . . .
37
3.1.2
Possible salvation in associative obligations . . . . . . . . . .
38
Fairness as a possible foundation of political obligation. . . . . . . .
43
v
3.2.1
3.3
3.4
3.5
From fairness to prima facie obedience. . . . . . . . . . . . .
47
Edmundson’s response to philosophical anarchism . . . . . . . . . .
49
3.3.1
Authority indistinguishable from arbitrary rule . . . . . . . .
56
3.3.2
Moral discovery as a possible source of authority . . . . . . .
58
3.3.3
Law and ethics do not necessarily overlap . . . . . . . . . . .
61
3.3.4
The morality of taxes in particular . . . . . . . . . . . . . .
62
The Public Goods’ defence . . . . . . . . . . . . . . . . . . . . . .
67
3.4.1
Public goods via decentralized coordination. . . . . . . . . .
77
3.4.2
The authoritative solution of prisoners’ dilemmas . . . . . .
95
3.4.3
The principal-agent problem . . . . . . . . . . . . . . . . . . 100
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
4 Democracy
4.1
4.2
4.3
102
Singer on Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . 102
4.1.1
Voting as quasi-consent. . . . . . . . . . . . . . . . . . . . . 108
4.1.2
Fair play as a solution to consent . . . . . . . . . . . . . . . 110
Democratic rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
4.2.1
Wollheim and the paradox of democracy . . . . . . . . . . . 115
4.2.2
The relevance of Singer’s models to large scale democracies . 118
4.2.3
Representation and authority . . . . . . . . . . . . . . . . . 120
4.2.4
Political parties . . . . . . . . . . . . . . . . . . . . . . . . . 126
4.2.5
The supposed virtues of polyarchy . . . . . . . . . . . . . . . 129
4.2.6
Rex nunquam moritur . . . . . . . . . . . . . . . . . . . . . 132
Liberalism v. Democracy; recent trends . . . . . . . . . . . . . . . . 137
4.3.1
The democratic peace . . . . . . . . . . . . . . . . . . . . . 139
4.3.2
Democracy and property . . . . . . . . . . . . . . . . . . . . 143
4.3.3
Hayek and the state . . . . . . . . . . . . . . . . . . . . . . 145
4.3.4
Democracy and redistribution . . . . . . . . . . . . . . . . . 149
4.4
Dworkin on democracy . . . . . . . . . . . . . . . . . . . . . . . . . 151
4.5
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
vi
5 The non-fallacy of anarchism
5.1
5.2
160
5.0.1
Abortion and liberalism . . . . . . . . . . . . . . . . . . . . 164
5.0.2
Private enforcement. . . . . . . . . . . . . . . . . . . . . . . 167
5.0.3
Locke on punishment. . . . . . . . . . . . . . . . . . . . . . 168
5.0.4
Nozick on punishment.
5.0.5
Blackmail revisited.
5.0.6
Anscombe on authority . . . . . . . . . . . . . . . . . . . . . 171
. . . . . . . . . . . . . . . . . . . . 169
. . . . . . . . . . . . . . . . . . . . . . 171
The appeal of anarchy . . . . . . . . . . . . . . . . . . . . . . . . . 173
5.1.1
The private production of defence. . . . . . . . . . . . . . . 176
5.1.2
Responses to Holcombe. . . . . . . . . . . . . . . . . . . . . 177
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Works Cited
181
vii
Chapter 1
Introduction
In this thesis I argue that the state is a coercive order and that much of its use of
coercion is unjustified. Many assume that the first claim that the state is coercive
is quite uncontroversial. However, William Edmundson, to whose work much of
my discussion is directed, denies this claim, holding that it is one of the fallacies
to which those like me, who favour some version of anarchism, are prone. Nor is
Edmundson alone in rejecting the coerciveness of the state. Following Raz who
thought it important not to assimilate the question of the authority of the state
to that of the justification of coercion, Green also denied that the state was essentially coercive, asserting rather that what was distinctive about the state was “its
comprehensive claim to legitimate authority”[1988, 151], which he in turn rejected.
As John Lucas once pointed out, coercion itself is a rather difficult notion
[1985,56], so I devote a fair bit of Chapter 1 to an exploration of it. As a basis
for this discussion I use what many have characterized as Nozick’s classic article,
[1997]. which as it turned out served as the prolegomenon to his much celebrated
later work. In the latter part of the chapter I take up Edmundson’s rejection of
the thesis that the law is coercive. While I have little quarrel with his rather brief
account of coercion, I fail to see why it cannot apply to law, and in fact argue that
it does.
Edmundson distinguishes two sorts of law, malum in se or those things which
morally we would likely prohibit, and malum prohibitum or those which are illegal
merely by dint of the fact that a legislature has seen fit to prohibit them. Indeed it
is the latter group which clearly illustrate the coerciveness of law, since but for the
law they would not be proscribed, and as Edmundson puts it, it is widely thought
that “until the state carries its burden of justifying them, they are presumptively
illegitimate” [1998, 110]. We of course think that the burden of proof rests with
the state to show that coercion is justified in this second class of cases, which we
will argue it fails to do.
In Chapter 2, having argued that the state is coercive, we then address the question of the state’s authority to wield the coercive power it does. Such authority has
often been thought to derive from consent of one sort or another. Although Green
1
thinks this the most promising of the reasons typically offered for acknowledging
the authority of the state “the fact that there seems no compulsive account of its
validity also means that it is not a general justification” [1988, 158, 185]. Others
such as Hart and Rawls have tried to derive an obligation to the state from a principle of fairness, such that if others have submitted to authority in some sort of
collective enterprise then one is obliged to do likewise. Again it is far from clear
how the decision of some to accept a particular authority as legitimate in any way
commits me to do likewise.
Given that a doctrine of political obligation does not appear to be immediately
forthcoming–indeed the main question about it still appears to be much as Simmons
thought it was a generation ago, namely whether there is any such thing [1979,3] —
Edmundson decides to lower the bar from an obligation to obey to an obligation not
to interfere in the lawful administration of the state. Even if our political overlords
would be satisfied with a duty of non-interference, it is still not obvious why they
are justified in demanding even that much. Edmundson thinks that there are good
reasons for acceding to authority, or at least not interfering in its proper exercise,
though in general it seems we just have to take the legislators’ word for it that they
struck the right compromise [1998,66]. Edmundson considers traffic laws a good
example of the coordination achieved by people obeying stop lights and traffic cops,
though even he has difficulty in believing that we have a duty to come to a definite
stop at a stop sign in the desert with no other traffic in sight. Another issue raised
by coordination is the fact that most of those that matter appear to have arisen
spontaneously where needed and thus antedated their being legalized.
One of the issues that goes to the heart of the supposed authority of the state is
the power to raise taxes to enable the state to do the good that it claims to be doing
for us. Whereas Athenian citizens were exempt from taxes, and while the Romans
reserved them for conquered peoples, modern states consider them to be a privilege
of citizenship.We argue with Nozick that they are on a par with forced labour
[1974, 169]and reject the claim that the supposed need for public goods in any way
justifies such takings. Indeed, the ever expanding public domain is evidence first
and foremost of official empire building, and, rather than providing much needed
benefits to the populace, brings all the shortages and inertia we have tended to
associate with centrally planned economies. In the case of state-provided medicine,
for example, it should come as no surprise that even in major urban centres 20% or
more of the Canadian population do not have a family physician, there are lengthy
waiting times for surgery, or that Canada has only 60% of the advanced diagnostic
imaging capacity of the average OECD country. Considerations of efficiency aside,
there is simply no justification for monopoly provision of health, education, welfare
or any of the other industries which the modern state has taken under its wing.
After addressing the main arguments latterly adduced in support of the state,
including the need for law and order and to prevent our succumbing to prisoner’s
dilemmas, we turn in Chapter 3 to the question as to whether democracy might be
pressed into service to provide the missing explanatory link. We argue again that
it also fails to underwrite the authority of the state, for reasons in addition to the
2
inability of consent theories to provide any such warrant. In our view democracy
is a rather superfluous sideshow which mostly serves to divert attention from the
fact that the emperor is standing on the tribune wearing nothing but a laurel
wreath. If democracy has been thought at times to be more than just a circus
for the entertainment of the masses, it is because it has often been conflated in
the popular imagination with freedom, notably the so-called freedom to elect our
rulers. According to Rose Wilder Lane, lurking behind the notion of free elections
is the “ancient Old World superstition” that “to control himself, an individual must
control the government that controls him” Of course, as Lane goes on to point out,
it really isn’t possible for me to control my controllers so instead I get a vote, a
majority of which will control the state which controls everybody. If I happen to be
in the minority, as most of us are on some issue most of the time, this is a sacrifice
I should be prepared to make “to the pagan God Demos, The Greatest Number”
The notion of a majority often proves to be “a delusion” because what amounts to
a casting vote breaks the tie. I wasn’t just in recent years where a small number
of votes decided the Presidential election; Lane reminds us that also happened in
1916 where the outcome changed when a few more votes trickled in from California.
The myth that “individuals can control a Government that can control individuals”
encourages the false belief that “Government is an Authority controlling men and
responsible for their welfare” [1993, 208-212]. If there were any way to guarantee
freedom it would be by narrowly limiting what governments are authorized to do,
since as Jasay observes “the threat to people’s liberty and property can just as
well come from the sovereign people as from the sovereign king. The danger, then,
lies in sovereign power and not in the character of the tenant who holds it” [1998,
208-209].
Not that we are attributing any great love of liberty to Joe the plumber —
Mencken warned against that years ago [1926, 44-45, 147]. What interests the
average Joe, as Jasay puts it, is which policy will give him the most money and
take away the least [ibid., 218]. Of course it is always possible that once having
voted, the state will actually take from Joe to give to Mary,1 or that he will find
himself falling victim to one of the myriad ways in which the sovereign state manages
to coerce its subjects, such as being fined for plumbing without a licence, which is
to say that licenced plumber John has been granted monopoly privileges at Joe’s
expense.
In conclusion I discuss the third of what Edmundson considers a fallacy typical
of the reigning anarchist orthodoxy in political philosophy, namely the view that
there is a sphere of morality where the law has no business. No doubt this has
an anarchic ring about it, and while the Wolfenden Report may have made noises
like this, it is not a view that I wish to spend a lot of time on. More interesting
than the possibility of what Edmundson calls “delegalized morality” is what I call
1
As Jasay again reminds us: “Neither the state nor its competitors have any money to offer
which does not already belong to somebody in civil society. Neither can, therefore, offer to civil
society a total net sum greater than zero. Yet each can offer to give some people some money by
taking away at least that much from others” [ibid., 219].
3
“demoralized legality”, or the malum prohibitum, law for law’s sake, type of legislation, which serves other ends than what is independently morally wrong. While
even under a more libertarian dispensation an individual may continue to enlist
others to enforce his justice claims, we see no reason to rule out self-help, any more
than present laws rule out self defence. The Criminal Code allows us in the case
of an unprovoked attack to repel force by force provided that the force used is no
more than is necessary to enable us to defend ourselves.
However, when it comes to its own actions, as typified by the malum prohibitum
laws, which, Edmundson admits, constitute the bulk of modern legislation, the
state has no compunction about exceeding the limits set by self-help and instead of
merely coercing the coercers of the innocent, helps itself to coercing the innocent
on a grand scale, which of course it is entirely unjustified in doing. Indeed its
ability to do so gives new meaning to Anscombe’s claim that “civil society is the
bearer of rights of coercion not possibly existent among men without a government”
[1981,147]. For this reason writers like Anscombe and Nozick will have difficulty in
showing how state coercion differs from that of the Mafia, even though they remain
convinced that there is a difference. Anscombe thinks we need governments, and our
need is what confers authority on them to employ norms not available to ordinary
mortals. The only problem with what amounts to the doctrine of Staatsr´’ason is
that it makes it hard to distinguish the Nazi state from supposedly just states,
something Edmundson and Dworkin thought it important to do.
Anscombe also seems to have overlooked the fact that the agreement to grant
authority to our would be overlords has to be worked out in the state of nature. The
question then arises whether the contract with the agent authority is self-enforcing.
If it isn’t, then we will need a meta-agent to enforce the initial contract, and a
meta-meta agent to see the agent below him performs as per the contract, which
is no doubt what Juvenal was asking in his famous question. On the other hand
if contracts are self-enforcing, it isn’t clear why we need an authority in the first
place, since as Green pointed out, it may be harder to produce than many of the
goods which supposedly cannot be produced without it [1988,149].
In fact as Cuzán argued, government does not get into an infinite regress of
meta-agents but acts as a “political anarchy, an anarchy inside power” [1979, 153].
To the extent that government operates under rules, they are mostly written by its
operatives with little or no third party oversight, and more often than not deals are
worked out anarchically behind closed doors. Such anarchic relations also extend
to many at the fringes of government, such as gangsters hired by the CIA and
police departments [ibid., 158]. Of course relations between sovereign states have
traditionally been anarchic, as Oye points out: “Nations dwell in perpetual anarchy,
for no central authority poses limits on the pursuit of sovereign interests” [1986,1].
Indeed, if we are wondering what the face of ordered anarchy looks like, and most
of us are not interested in the disordered variety, we need look no further than the
acts of the sovereign state. And if the sovereign by definition does not require an
enforcer, it is far from obvious why the sovereign individual does either.
4
Chapter 2
Coercion
In this chapter I would first like to explore the notion of coercion, since one of the
steps towards maximizing liberty is to ensure that transactions between individuals
are free and not coerced, or at the very least,one should attempt to reduce its
harmful effects [cf. Hayek, 1978,12]. Some writers such as Viminitz think that
coercion is a vacuous notion along with notions such as liberty and equality, socialist
and capitalist. In particular he claims that any attempt to produce a non-normative
definition of coercion is likely to be vacuous [Viminitz 2001]. Narveson, on the
other hand, rightly denies Viminitz’s claim about the vacuity of coercion, arguing
that we can indeed reach some agreement about the sorts of activities which are
properly described as coercive, and how it is, for example, that coercion differs
from force. According to Narveson there are three ways in which I may acquire
goods in someone else’s possession: (a) I may persuade him to exchange the item
for something I have, such as the requisite amount of coin of the realm; (b) I may
kill him and take what I want; (c) I may threaten to make him much worse off if he
doesn’t hand over the goods. It is only (c) which is properly described as coercion,
while (a) is what we’d rather have people resort to, as opposed to either (b) or (c)
[Narveson,2001].
Commentators such as Hayek, again, would concede that coercion, like liberty,
is a difficult concept, but that pace Viminitz, it is possible to decide what we are
or are not talking about, before we tackle the question as to what if anything is
wrong with it. Hayek notes further that we may be compelled by circumstances to
do X, but it takes another human being to coerce us into doing X; indeed we are
coerced where we reluctantly serve the will of another,rather than do as we would
have preferred. However,Hayek cautions us against thinking that the victim does
not actually choose a course of action, as would be the case if he were forced to
point the gun and squeeze the trigger. To be coerced is to choose what one would
rather not have chosen [Hayek,1978,133-134].
As undesirable as coercion may often be, particularly when it gets in the way of
an individual’s most effectively contributing to society [op.cit. 134], Hayek argues
that, contrary to what passes as received wisdom, market transactions are generally
5
not coercive. Even in the case of a supposedly essential service, withholding such
a service is not to be considered coercive, particularly if a competitive market can
supply an alternative source. In the case of a monopoly provider, the service would
need to be essential for the necessities of life, for the conditions under which the
supplier agrees to provide it to be possibly considered coercive. Hayek notes, of
course, that the monopoly supplier par excellence is the state, a fact which led
Trotsky to remark that the old dictum about having to work in order to eat had
been superseded by the need to obey in order to eat [ibid., 137].
For Hayek the paradigm cases of coercion are likely to be found at the hands of
conquerors, or resulting from various protection rackets, including those presided
over by a state.Nor is coercion confined to arm’s length transactions, since various
intimate relationships are known to also provide fertile grounds.But other than
perhaps ensuring that such relationships are voluntary, any more vigorous attempt
at regulation might lead to even greater coercion [ibid.,137-8]. Although in Hayek’s
view coercion admits of degrees, from an extreme such as a master slave relationship
to the one-off instance of threatening harm, it does not include all cases where our
actions may cause others to diverge from a preferred course of action.As Hayek puts
it, “Coercion implies both the threat of inflicting harm and the intention thereby
to bring about certain conduct” [ibid.,134].
2.1
Nozick on coercion
Almost a decade later, in what Wertheimer has characterized as a “seminal article,”
Nozick picks up from where Hayek left off in the exploration of what would or would
not properly count as a case of coercion. Nozick’s article is, as he puts it, “intended
as a preliminary to a longer study of liberty,whose major concerns will be the
reasons which justify making someone unfree to perform an action, and the reason
why making someone unfree to perform an action needs justifying” [“Coercion”
1969; reprinted in Socratic Puzzles [1997,15].1
Nozick offers the following list of the necessary and sufficient conditions for A
to be said to have coerced B:
1. P threatens and knows he is doing so.
2. P’s threat undermines Q’s doing A, such that A is less desirable or eligible
for A.
3. P intends to threaten Q, and the threatened punishment must worsen Q’s
doing A, a view shared by both P and Q.
1
The longer study mentioned would turn out to be Anarchy State and Utopia [1974]. Whereas
Hayek tended to equate liberty with the absence of coercion, Nozick thought that while the two
notions were connected, it was important to note cases where P could be said to have restricted
Q’s freedom to do A without it being equally correct to say that P had coerced Q into not doing
A [1997, 15]
6
4. Q does not do A.
5. Q gives P’s threat as part of the reason for not doing A.
6. Q knows that P has threatened to do C if Q does A.
7. Q believes that, and P believes that Q believes that, P’s doing C would leave
Q worse off, having done A, than if Q didn’t do A, and P didn’t bring about
C.
As well as covering most of the standard cases of coercion, such conditions will
help clarify some of the non-central cases, such as those where, for example, P is
mistakenly thought by Q to have uttered a threat, or where the supposed threat
is better construed as a warning, as in the case of the mother who says she would
have a heart attack, if her son were to do A.
2.1.1
Threats v. Offers
Although many have seen employment relationships as typically coercive, like Hayek,
Nozick considers it the exception rather than the rule that employment or salary
proposals amount to threats, which is to say that a prospective employee is not
normally coerced [1997,24]. Thus Nozick suggests a rule of thumb for distinguishing threats from offers: if what P proposes worsens the outcome of Q’s doing A,
then it is a threat, whereas if P’s action improves Q’s outcome then it is an offer.
The background against which we supposedly measure changes in Q’s outcome is
what Nozick calls the normal course of events, which is the way Q’s universe would
have unfolded absent P’s intervention.Nozick also understands the normal course
of events to include the fact that others will continue to act morally as they have
done in the past.Nozick presents the following harder cases as a way of testing his
rule of thumb:
2.1.2
The drug addict
(a) P is Q’s usual supplier of drugs, but today he refuses to sell them to Q for the
usual price of $20, telling Q that he can have them for nothing iff he beats
up R.
(b) P is a stranger who has been observing Q, and knows that Q is a drug addict.
Both know that Q’s usual supplier of drugs was arrested this morning and
that P had nothing to do with his arrest. P says that he will give Q drugs iff
Q beats up R.
Nozick considers (a) to be a threat to withhold drugs if Q does not perform the
required beating. It is a threat because Q would prefer the status quo, or as Nozick
7
would have it, the normal course of events, where he received drugs in exchange for
money, rather than now having to act as P’s enforcer. On the other hand Nozick
regards (b) as an offer, rather than a case of coercion by threat, even though Q
might again feel he had little choice but to comply. Here P is not withholding drugs
he would have supplied in the normal course of events, since he has hitherto had
no dealings with Q, though is making overtures in that direction.
If it remains unclear as to whether a proposal is a threat or an offer, this may
have to do with the fact that the notion of the normal course of events is itself
unclear, since it is supposed to address the case where P does not intervene as
well as that where morality requires that he does. Nozick admits that there may
indeed be disagreement about the normal course of events, or baseline from which
to distinguish threats from offers [ibid.,26].2
2.1.3
The drowning man
Nozick’s other celebrated test case concerns a drowning man Q and the conditions
under which P is prepared to help rescue him: Q is in the water far from shore,
nearing the end of his energy, and P approaches in his boat. Both know that there
is no other hope of rescue around, and P apparently knows that Q is honest and
will keep his promises. P proposes that he will use his boat to bring Q back to
shore if and only if Q promises to pay P $10,000 within three days of reaching shore
[ibid.,26-27].
The question then is whether the conditions under which P will rescue Q constitute an offer to rescue Q or a threat to let him drown if he refuses to meet P’s
terms. If the normal course of events is that Q would drown without P’s intervention, then P is offering to save Q, even though Q may consider P’s “salvage” fee
exorbitant, and/or well beyond his means to pay. However, if the normal course of
events is thought to imply that anyone who is able without assuming undue risk to
effect a rescue of a fellow human being in peril on the sea would “normally” do so,
then to demand compensation could be seen as a threat, if the victim is unwilling
or unable to pay the cost.
Nozick thinks that most observers would probably agree that under such circumstances P was morally obliged to render whatever assistance he could, which is
to say that to demand payment is to threaten to let Q drown. This also puts a different spin on the normal course of events understood as the baseline or status quo
where Q is prior to P’s proposed intervention. Nozick now speaks of the morally
expected course of events, as opposed to the normal course of events, to reflect the
fact that Q expects that P will now do the right or charitable thing, namely rescue
Q.
As to why Q would consider it reasonable to expect that P would do his duty,
we could reply that P might do so in the hope that others would do likewise for
2
For a clearer characterization of a baseline, see Narveson [2001,3]
8
him in similar circumstances.3 If indeed we all benefit by living in a society where
the virtue of charity is practised, it does seem a little mean spirited of P to demand
payment for helping Q in his hour of need. However, perhaps P is a paid up
subscriber to TANSTAAFL, and would fully expect to put cash on the barrelhead should he ever need rescuing.4 In fact he might even find such an alternative
preferable to Good Samaritan laws which attempt to legislate charity.On the other
hand, while Nozick thinks it clear that Q can here expect P to exercise the virtue
of charity,he can imagine cases where Q’s moral credit is sufficiently diminished for
him to be left to the mercy of the waves [ibid.,27].
2.1.4
A fair price?
In a footnote to the drowning man case Nozick pursues the question of the extent
to which price might be a factor in determining whether P’s proposal constitutes
a threat or an offer. Here we are asked to consider the case where P’s practising
his violin disturbs his neighbor Q. The cost of getting P to take his practising
elsewhere for a year is somewhere between $500, the minimum P would require
to do so, and $2000, the maximum Q would be prepared to pay to have P do so.
Nozick is inclined to say that payments at the low end constitute offers, while those
at the high end are more likely threats, though he admits such intuitions may be
hard to justify in the absence of a theory of fair pricing, if indeed any such a theory
is possible [ibid., 1997,339n.28].5 Undeterred by the lack of a theory, Hayek held
that a price increase by a monopoly supplier of water in the desert was obviously
coercive [1978, 136], a view rejected by Rothbard, who argued that the owner of a
scarce resource was free to dispose of it as he pleased. Indeed, Rothbard thought
it impossible to tell at what point a contract ceased to be fair or reasonable, and
could be considered coercive [2002, 221].
On the other hand, Coase thought that bargaining offered the best route to
a mutually satisfactory solution [1988,99], and was certainly preferable to that of
the courts, who typically found in favour of one of the parties at the expense
of the other.In his discussion of Sturges v. Bridgman, where a doctor’s practice
is affected by noise from an adjoining confectionery business, Coase favours an
agreement where the confectioner would compensate the doctor for the nuisance,
at a level which would not render his operation unprofitable, but greater than the
cost of solutions the doctor might consider, such as renovation or moving.Their
ability to strike a bargain, as Coase saw it, “depends essentially on whether the
whether the continued use of the machinery adds more to the confectioner’s income
than it subtracts from the doctor’s” [ibid.,106]. If, as Coase suggests, parties intent
on bargaining in good faith can agree on a price,we are dealing with a mutually
beneficial offer rather than a threat.
3
cf. Narveson [1988,264]
“there ain’t no such thing as a free lunch”:cf. Gwartney & Stroup [1993, 6]
5
cf.Sowell [2000,133]
4
9
Rothbard also raises the matter of Sturges v. Bridgman, but rejects Coase’s
view that property rights are less important than determining which solution produces the greater social product. According to Rothbard, Coase’s approach ignores
the subjective nature of costs, and under the guise of supposedly wertfrei social
science, imports an ethical norm of efficiency in order to determine mythical “social transaction costs.” [1997,123-125,141-142]. No doubt much of so called public
policy is founded on the belief that Coasean determinations of social efficiency are
possible, an example of which are takings under eminent domain, where governments claim the right to seize property so as to put it to more efficient uses than
the individual owners. Not only do such interventions raise questions about the
coherence of social efficiency, but also about the state’s competence to make such
determinations.
The difficulties which Rothbard rightly sees in summing individual costs to arrive at a total social product are not meant to preclude other notions of a social
good, by which societies, or institutions within societies, might be compared with
one another. In a more Pareto-efficient society, for example, as Narveson has noted,
people are able to get on with their lives, relatively free from costs imposed by others [2002, 82]. Indeed, Sturges v. Bridgman or Nozick’s musical nuisance presented
contexts where people could be said to be impeded in their pursuits by the impositions of others. In Pareto terms some people have improved their lots at the
expense of others, in which case some offset or compensation might be called for.
Unlike Coase’s no-fault scheme of social efficiency, a libertarian regime attempts to
settle such questions by reference to its basic doctrines of freedom of the individual
and that individual’s right to own property or to homestead. Rothbard reminds
us that homesteading did not come to an end in the 19th century, but that such a
notion may still be of service in deciding who is imposing on whom, or who is trespassing on whose property. For example, if we buy a house in a new development
near a long established airport, although excessive noise is a form of aggression,
the airport may be considered to have homesteaded an easement or prescriptive
property right to X amount of noise [ibid.,145-146]. While the ancient doctrine of
prescription may have much to recommend it, the courts did not allow the fact that
the doctor in Sturges v. Bridgman had come to a pre-existing nuisance to stand in
the way of his being granted the relief sought.6
Let us return to Nozick’s concern as to whether a proposal to take one’s nuisance
elsewhere for consideration was an offer or a threat. He was inclined to think that
if consideration or the price for which A buys B’s promise to perform were at the
high end of the scale it might be more of a threat, as might a hefty salvage fee for
the man in peril on the sea. If two individuals cannot reach a mutually satisfactory
agreement, perhaps because one or the other considers it coercive, or because A
thinks it unjust he should have to pay for B to take his nuisance elsewhere, or
6
cf. Coase [1988, 105]. However there are other cases where the courts have acknowledged
the doctrine of prescription, such as Bass v. Gregory, also discussed by Coase and Rothbard.
Brubaker [1995,246]. mentions a Canadian case where the court again found for the plaintiff
despite his having come to a nuisance.
10
because B believes he is entitled to Rothbard’s prescriptive easement, either or
both may seek third party intervention, ranging from simple mediation to more
complex forms of arbitration. Such interventions proceed under widely different
rules and range from the less costly and coercive to the much more costly and
coercive at the litigation end. The decision handed down in Sturges v. Bridgman
doubtless not only imposed the usual legal costs, but also substantial economic
costs of mitigating the nuisance from which the doctor sought relief, to say nothing
of further threats pursuant to non-compliance. Some have denied that the state
is a coercive order as the practice of such tribunals would suggest. We shall have
more to say about that later in the chapter. As to what it is, if anything, that
confers authority on the state to coerce its residents we shall take up in the next
chapter.
2.1.5
Nozick’s slave case
Having examined the extent to which threats can bring about changes in the normal
or expected course of events, Nozick takes up the question as to whether the normal
course of events might itself under some circumstances be threatening or coercive.
He asks us to consider the case of the master who beats his slave for good measure
every morning, but offers to refrain from doing so the next day, provided the slave
accedes to a particular request. Nozick suggests that such a proposal amounts to
a threat rather than an offer, a verdict he claims we arrive at by attending to the
morally expected rather than the normal course of events [1997,27]. Moreover, with
respect to both the slave and addict cases, Nozick holds that the normal course
of events diverges from the morally expected one. The slave would supposedly
prefer the morally expected course of events where he is not beaten, and as most
would argue as well, a situation where he is not a slave in the first place, though
this particular deliverance of morality does not appear to be currently on offer.
However, since we are not told what the master wants his slave to do for him in
lieu of a beating, the proposed change in the course of events may or may not be
preferable to the customary one.
However,the addict would prefer to continue the relatively uncomplicated purchase of his drugs, rather than beat up someone else instead, which is to say,
according to Nozick, that the addict prefers the normal to the morally expected
course of events. By “morally expected” I take it that he means that peddling drugs
is immoral, in which case if morality gained the upper hand, the addict might be
out of luck, but being an addict he prefers to continue to get his drugs and under
the conditions to which to which he has become accustomed. To the extent that the
pusher is proposing to disrupt that practice, his proposal at least from the addict’s
perspective, can be considered a threat.
By way of response to Nozick, there does seem to be something rather arbitrary about deciding whether the supposed dictates of morality or of customary
practice, assuming reasonable inferences can be drawn in either case, should act as
11
the backdrop against which a given proposal can be seen as a threat or an offer.
Nozick argues that when the two diverge, we should run with the preferences of the
recipient [ibid.,28]. assuming, it would appear, that there is some way of knowing
what the recipient prefers in a given instance. On the other hand Wertheimer, for
example, is inclined to place less faith in the sorts of intuitions on which Nozick
relies, and disagrees that when the morally expected course of events differs from
the normal or statistical course, the proper baseline is the one that the recipient B
prefers [1987,211-212].
Wertheimer proposes 3 different ways of setting B’s baseline: (1) the statistical
test, where what is “normal” in society determines whether A is making an offer
or a threat; (2) the moral test, where there is a clear moral expectation that A will
perform or refrain from performing a certain act; and (3) the phenomenological
test, which is what B rightly or wrongly believes A is likely or morally expected
to do [ibid., 207].7 Wertheimer believes that any one of the three methods of
determining B’s baseline can help us find a right answer to the question as to
whether A’s proposal is a threat or an offer, but that, Nozick notwithstanding, “we
need not assume that only one of these baselines is legitimate or that there must be
a principle for determining which test takes precedence when their results diverge”
[ibid.,212].
In his drug addict case, Nozick claimed that P was threatening to deprive Q of
his drugs if Q did not beat up Y. According to what Wertheimer calls the statistical
test or Nozick’s normal or expected course of events, P’s proposal was a threat, a
threat, that is, to disrupt Q’s normal supply, though when we apply Nozick’s moral
test, it counts as an offer, since morally one ought to discourage the use of drugs
[1997,28]. But as Wertheimer reminds us, what morality requires may not be all
that clear, since Q might claim, for example, that he has a moral right to P’s
continued assistance. If that is the case, there is also the question as to whether
the terms of the assistance can be varied without the proposal becoming a threat
rather than an offer [ibid.,210].
Indeed, Wertheimer does claim that Q has “a reasonable expectation” that P
will not hike his prices, or if he does, will not exceed the going rate, which is to say
that P’s offer amounts to a threat [ibid.,210]. But while Q may reasonably hope
that drug prices will remain stable, it isn’t clear what sort of duty Q’s expectation
imposes on P to keep them that way, such that not doing so constitutes gouging
or a threat. Wertheimer seems to acknowledge that drug selling is a rather skewed
case, since by definition the buyer is precluded from a free exchange because of his
habit. Thus such a proposal may be a “poorer offer,” rather than a threat [ibid.].8
7
See also Feinberg [1984,225]
Rothbard reminds us that the illegal nature of black markets predisposes them to lower
efficiency,poorer service, and higher prices, where any attempt at price control is only likely to
benefit the monopoly supplier. 2001,786-787
8
12
2.1.6
Blackmail
Nozick considers blackmail to be a classic example of offers that have a coercive ring
about them. He supports its prohibition on the grounds that it is an “unproductive”
exchange, since doing so would not deny any benefit to the victim, who would
be just as well off if the blackmailer had never made an offer in the first place
[1974,85]While Nozick did not want to rule out all transactions for the purpose
of non-disclosure, he thought the need to avoid a protection racket imposed strict
limits on compensation. Rothbard, on the other hand, found any such strictures
incompatible with the functioning of a free market; taking money in exchange for
silence does not involve threats to person or property [2001,443,n.49]. As to Nozick’s
claim that such exchanges do not make the buyer better off, Rothbard replies that
the purpose of the exchange is rather to prevent his being made worse off, a service
the buyer seems ready to pay for [1977,53].9
Nozick nevertheless allows as productive an agreement reached with a neighbour
to forego erecting an unsightly structure, provided that the neighbour’s intention
of doing so is genuine and not feigned, for otherwise it would be a case of offering
consideration for nothing [1974,85]. But, perhaps it is somewhat arbitrary to make
the seller’s mens rea a test of productivity, in order to head off a possible market
in abstentions, analogous to those in indulgences in earlier centuries. Interestingly,
Epstein also thinks the law is right to prohibit blackmail because of the “bargaining
complications” it shares, for example, with cases of private necessity, such as that
of Nozick’s drug addict. Courts have found that a ship’s need to escape peril on
the sea may override a dock owner’s right to exclude,and have limited the compensation owed under private necessity or salvage,as Epstein puts it, “preventing
the gameplaying that parties might otherwise engage in,given the large bargaining
range” [1993,56]. While we agree with Epstein that “The libertarian norms against
force and fraud do not require any assistance to persons in peril” [2003,100,101],
one might expect legal scrutiny of Nozick’s drowning man case to set similar limits
to any fees demanded by the rescuer.
2.1.7
Threats/Warnings
Before taking up what he considered to be examples of less central cases of coercion
under the rubric of threats/offers, Nozick briefly explored the distinction between
threats and warnings, suggesting that a mother who reminded her son that his proposed action might give her a heart attack, was best construed as a non-threatening
warning, if only because the mother lacked the ability to produce such symptoms
on demand [1997,21]. Nozick returns to this distinction towards the end of his
discussion in order to clarify the point at which an employer’s response to a union
membership drive ceases being a warning and becomes a threat.Here again Nozick
9
Similarly Rothbard holds that there is no justification for the tort prohibition on defamation
since an attack on one’s reputation is not an invasion of person or property [2001,157,443]
13
appeals to his notion of the normal course of events, which in this case is largely
a function of the employer’s expected behaviour in the face of a successful union
vote. As noted above, Nozick also sets store by the employer’s mens rea as a test of
whether his proposal amounts to a threat or not. While he does not appear to think
that the employer is obliged to stay in business if the union wins, [1997,341,n.38].
Nozick does think that the employer has a moral duty to be forthright about his real
intentions, and not make a strategic announcement about a possible plant closing
which does not reflect his considered preferences.
While there is some jurisprudence which lends support Nozick’s finding that
in some cases the employer’s behaviour threatens rather than warns the union
[1997,342,n.42], paceNozick and the courts, it is far from obvious who is threatening
whom, when a union declares its intention to sign up members in a hitherto nonunion environment. From the employer’s point of view, in the normal course of
events he would continue doing business in the way he had done prior to the arrival
of the union, an option which will no longer be available if the union vote carries.10
However,Nozick seems all too ready to concede the higher moral ground to the
unions, while other writers have noted that unions are no strangers to coercion,
both of their own members as well as employers.11 The prime underwriter of such
coercion is of course the state, without whose laws unions could not have wielded
the power that they do, and, according to one estimate, cost the U.S.economy $50
trillion over the past half century.12
Nozick concludes that while not all ways of influencing people’s decisions are
coercive,it is characteristic of a threat that one feels that one is doing the bidding
of someone else rather than what one might have chosen to do, absent the threat.
Indeed the rational individual typically welcomes offers and rejects threats, or in
terms of the status quo,is willing to move from the pre-offer to the offer, but not
from the pre-threat to the threat [1997,41]. Q can be considered to have been
coerced into not doing A where “Q’s whole reason for not doing A is to avoid or
lessen the likelihood of P’s threatened consequence”; on the other hand Q has not
been coerced, where “P’s threatened consequence is not part of Q’s reason for not
doing A” [ibid.,44].
2.1.8
Rhodes on Coercion
Rhodes’s more recent account [2000]. in a sense picks up from where Nozick’s leaves
off, seeing coercion largely as a matter of separating threats from offers. Rather
than Nozick’s approach of generating a list of symptoms for diagnosing the presence
of coercion Rhodes suggests rephrasing proposals involving either threats or offers
10
Other analyses of the normal course of events in terms of the status quo ante bellumcannot
be counted on to help us decide whose status quo is paramount,that of the union or that of the
employer; cf. Narveson [2001].
11
see Olson 1965,71
12
Woods [2004,150];see also Hospers [1971,174,178-80]; Rothbard [1995, 136-138]; Henderson
[2002,109]
14
into conjoined conditional form:if Q does A, then result R will follow & if Q does
not do A, then result R will not follow.The algorithm rules then tell us to construe a
proposal where the first conditional is an offer and the second is neutral (i.e. result
R will simply not occur) as an offer, while if the first is a threat, flowed by a neutral
proposal, the total proposal is a threat. If the first conjoined conditional is an offer,
while the second is a threat, according to Rhodes we have a mixed proposal, where
neither offer nor threat predominate [2000,372].
By way of illustration Rhodes asks us to consider a case where Quincy offers
Paul $15 for trimming a tree limb, the consequence of Paul’s not taking up the offer
being that he doesn’t get the $15. Applying the algorithm reveals this proposal
to indeed be an offer, contrary to a supposed tendency, on the part of some at
least, to construe such a proposal as a threat not to pay Paul unless he does the
work. On the other hand, the case where Quincy holds a gun to Paul’s head and
demands his wallet permits of the following conditional: If Paul surrenders the
wallet, then Quincy will not kill Paul, and if Paul does not surrender the wallet,
then Quincy will kill Paul. Since the first conditional is neutral while the second is
a threat, the proposal constitutes a threat. However, in the face of what has long
been seen as the paradigm case of coercion,13 Rhodes’s procedure borders on the
redundant.Further, construing the first conditional as “neutral” seems a bit of a
stretch, since it is contingent upon Paul’s giving up his wallet, something he would
probably rather not do.
In the last variation on this theme, Quincy offers Paul a 10% cut to launder
some of his mob money, though it’s not really an offer because Quincy will kill Paul
if he doesn’t do so. This time Rhodes’s decision machine cranks out the verdict that
the proposal is mixed, i.e., both offer and threat, though it would appear to me,
given the company that Quincy keeps, that it is mostly a threat. Indeed, as Nozick
pointed out, in contexts where people are known to resort to violence, one doesn’t
have to utter a direct threat for it to be one: “In many situations the infliction of
violence is well understood by many parties to be a threat of further infliction of
violence if there is non-compliance. Nothing need be said” [ibid., 20].
In connection with the earlier tree-trimming case, Rhodes noted that the reason
it was an offer and not a threat is that Paul would supposedly not perceive any
threat or harm associated with Quincy’s offer. It is of course anybody’s guess what
someone like Nozick’s partially described rational man, which, as he sardonically
remarked, stopped short of including most of us, [ibid.,39]. would or would not
perceive under any given circumstances. He may well perceive what he has insufficient grounds to, or fail to perceive what most others would agree there were
abundant grounds to. Such difficulties notwithstanding, Rhodes declares that: “it
is the agent’s beliefs about what is the case that motivates his choice of action or
non-action rather than what actually is the case” [2000,372].
As for the two cases which Nozick used to illustrate the less straightforward instances of coercion, Rhodes agrees with Nozick in the case of the slave,and disagrees
13
cf. Hart [1961,19]
15
in the case of the drug addict.Whereas in the slave case Nozick used what he called
the morally expected course of events to decide that the master’s proposal not to
beat the slave was in fact a threat, Rhodes resolves it into its underlying conditionals: a. If the slave does the specified action, then the master will not beat the slave
and does nothing; b. if the slave does not perform the action, then the master beats
the slave. Given that the first condition is neutral, while the second is a threat, it
is the second which carries the day, which is to say that the proposal is a threat.
With respect to the drug dealer, P, who wishes to vary the conditions under which
Q gets his supply, such that in lieu of paying cash, Q assaults R on P’s behalf, P is
also considered by Nozick to be threatening Q, while Rhodes’s conditional decision
procedure yields the result that the drug case is an offer [2000,374].14
Again, if Nozick is right that such cases are less central to a theory of coercion,15
the fact that he and Rhodes differ as to the coerciveness of a proposal need not be
particularly worrisome. Their failure to agree in the drug case, for example, will no
doubt be due in part to their rather different approaches. Nozick allows for moral
considerations to form part of the baseline for determining whether an proposal is
coercive, while Rhodes eschews baselines, holding that threat avoidance behaviour
may be sufficient to establish coercion quite independently of intention;16 questions
of morality only enter into the subsequent justification of coercion.17 So even if
different analyses of supposed instances of coercion don’t always produce the same
result, particularly in hard cases, there is substantial agreement among those of a
generally liberal temperament that coercion is to be avoided wherever possible, and
at the very least requires justification.18 William Edmundson,the legal theorist, to
whose views we shall be turning in the next section, is no exception, though we
shall take issue with his view that the state is not coercive.
14
Nozick might have also been prepared to consider a similar verdict if the terms were made
more favourable to Q, such as by providing him with better quality drugs in return for beating
up R [1997,25]
15
Nozick provides a further list of principles which might show how such non-central cases relate
to the central ones, leading to a recursive definition for “P coerces Q into doing A” [1977,22];
both the slave and addict cases are outliers to the extent that they feature incompetent market
participants: cf. Epstein [1997,82]
16
Nozick insists in his original conditions that both P and Q must be aware that P intends
to threaten Q, allowing that Q may be mistaken about being threatened, and is therefore not
coerced [1977,17-19]
17
Narveson agrees that the case for coercion is to be made out independently of its justification, but employs the the pre-proposal situation as a baseline for deciding whether the proposal
constitutes a worsening of the status quo [2001,3].
18
cf. Skoble [2008,28-29]
16
2.2
Edmundson and the supposed non-coerciveness
of the state.
Having surveyed some of the questions relating to coercion in general,let us now
address Edmundson’s treatment of coercion in particular, where his aim is to deny
the view that the state and its laws are coercive. He admits to having somewhat
of a task ahead of him, since the assumption that the law is coercive is now largely
taken as uncontroversial [1998,73]. My view that this is as it should be is not
confined to old liberals like myself but shared with the latter day variety, such as
Rawls, who states that “political power is always coercive power backed by the
government’s use of sanctions” [1993,136].
Of the various contexts which may give rise to questions of coercion, Edmundson finds his attention drawn to one where coercion is appealed to in the context
of a demand for explanation of particular conduct, [1993,78]. such as that of the
celebrated highwayman, which goes back at least to Hobbes [1909, 107].19 Edmundson contrasts the coerciveness of the highwayman with that of the state, which in
enacting a statute against highway robbery, coerces the citizenry from resorting to
coercion by threat of incarceration. He notes that, according to some, the state’s
coercion in the latter instance demands justification, in somewhat the same way
that the highwayman’s coercion did.
2.2.1
Plea bargains and coercion
Edmundson reviews Wertheimer’s two-pronged analysis of coercion claims, at least
as the courts have tended to see them, into joint choice and proposal conditions,
somewhat reminiscent of Rhodes’s analysis. For it to be a case of coercion on
Wertheimer’s view, the proposal must be wrongful, and the coercee must have had
little or no choice about going along with it: “A coerces B to do X if and only if (1)
A’s proposal creates a choice situation for B such that B has no reasonable alternative but to do X and (2) it is wrong for A to make such a proposal to B” [1987,172].
In order to test this analysis of the legal view of coercion Edmundson selects a case
where a defendant agrees to a plea of homicide in order to avoid the death penalty,
but later seeks to overturn his conviction on the grounds that he was coerced. The
defendant facing the death penalty may well have had as little choice as the traveler
under threat from the highwayman, but the second prong of Wertheimer’s analysis
requires us to settle the moral status of the proposal. According to law the district
attorney is entitled to trade the death penalty for a guilty plea, which is to say the
defendant has not been coerced, but if you consider capital punishment morally
wrong, as Edmundson does, then the proposal is coercive.
By way of brief comment on Edmundson’s assessment of this homicide case,
one might have expected someone who did not favour the thesis that the law was
19
cf, Jasay,1991,19
17
coercive, not to find that it was coercive in this case either, thus supporting Supreme
Court jurisprudence to the effect that plea bargains are not inherently coercive but
voluntary agreements liable to enforcement. We might also ask how such a case
would fare at the hands of other accounts of coercion discussed earlier, namely those
of Nozick and Rhodes. Nozick’s slave and drug addict cases show that it can be more
difficult to settle questions of coercion which take place within morally problematic
contexts such as slavery or drug addiction. As already noted, Nozick seems to have
thought that in both cases the proposal was more of a threat than an offer and
therefore coercive. As for the plea bargain case, I suspect that Nozick might have
been inclined to agree with Edmundson that it was also coercive, given that the
defendant, at least in retrospect, saw it to be so, and given Nozick’s presumption
in favour of the recipient’s preferences in such cases [1997, 28]. Nozick would
probably have also agreed with Edmundson that “the wrongfulness of the District
Attorney’s declared unilateral plan shapes our view of its coerciveness” [1998, 80].
Rhodes on the other hand thought it possible to determine the coerciveness of
a proposal independently of any moral judgment about it. We saw above that
Rhodes’s biconditional decision procedure suggested that the proposal to have the
drug addict perform an additional service for his drugs was not coercive, whereas
the master’s offer not to beat his slave in return for such service was coercive.
Putting the homicide case into the two conditionals required by Rhodes’s analysis,
we have: (1) If the defendant pleads guilty to homicide, then the DA will not seek
the death penalty and does nothing; (2) If the defendant does not plead guilty to
homicide, then the DA will seek the death penalty. The first conditional is then
neutral in Rhodes’s terms, and the second is a threat, which is to say that the
proposal as a whole is a threat, or coercive. Thus Rhodes would arrive at a similar
conclusion to Edmundson, and probably Nozick, though without incorporating at
the outset views about the wrongfulness of the DA’s proposal.
Edmundson contends that the plea bargain case raises questions about a matter
which loomed large in Nozick’s account of coercion, namely the recipient’s moral
baseline which Edmundson characterizes as “the moral rights and entitlements
against which we must judge A’s proposal” [ibid.]. Indeed, as we saw, Nozick
distinguished the morally expected course of events which supposedly reflected B’s
moral rights from the so-called normal course of events, and which was the background or baseline against which we measure whether A’s proposal constitutes an
improvement in, or worsening of B’s lot. When the moral course of events diverges
from the normal course of events, as it did in Nozick’s slave and addict cases, the
recipient’s preference will be a guide as to which course of events represents for him
an offer or a threat.
In order to clarify the importance of the moral baseline, Edmundson cites two
further cases; first, where A proposes for a significant sum to help B overcome
some transportation problems which would otherwise result in a huge loss for B.
Edmundson finds that this is a case of hard bargaining, as opposed to coercion,
since “A’s carrying out A’s unilateral plan will leave B no worse off than B had
a moral right to be” [1998,81]. He contrasts this case with an earlier one where a
18
company which had contracted to supply gears to another company attempts to
change the terms of the contract mid-stream, thus coercing the second company,
since these components were crucial for it to meet its own contractual obligations.
2.2.2
Sea rescue and coercion
Edmundson’s version of the sea rescue case largely parallels that of Nozick, who
also specified that both P and Q were aware that Q’s only hope was to accept
P’s proposal. Under these circumstances, Nozick’s concern is whether P’s proposal
constitutes an offer to rescue Q, or a threat to let him drown, if he does not agree
to P’s terms. Nozick’s “normal course of events” is the baseline from which he
makes just such a determination, but as we noted earlier it seems more reasonable
to equate the baseline with the status quo ante, ante, that is, any proposal by P.
From such a baseline it would seem easier to determine whether P’s proposal is
likely to improve Q’s situation or worsen it. As we pointed out,the notion of the
normal course of events is itself quite unclear. Q, being in the dire straits he is,
would, in at least one obvious sense of the normal course of events, drown. Now that
P has happened upon the scene, Q’s chances of rescue have improved substantially,
especially if Q can count on P’s doing what would be normal and moral under such
circumstances, namely effect a rescue if that can be done without P’s endangering
his own life. Indeed, in this case Nozick considers that the normal thing to do is
the morally expected thing, namely to rescue Q, in which case demanding payment
is wrong and amounts to a threat to let Q drown.
Edmundson agrees that part of what makes the sea rescue case difficult is that
it is not clear whether the baseline for judging P’s proposal20 includes a duty to
be a good Samaritan. Indeed the problem of deciding which duties are included in
the moral baseline appears to prevent Edmundson’s attempting to offer any final
resolution of the sea rescue case, consoling himself with the fact that Nozick has
similarly avoided doing so. However, as I suggested earlier, Nozick does tell us that
most readers are likely to believe that exacting a high price from a drowning man
is a threat.21
Although Rhodes does not discuss the sea rescue case, we should perhaps see
whether he could offer us a more definitive verdict than Edmundson, who contents
himself with the rather lame observation that any conclusion will be a function
of the facts and one’s moral convictions. As we saw, Rhodes did discuss Nozick’s
drug addict and slave cases, rejecting Nozick’s finding of coercion in the former,
but agreeing in the latter that the master’s proposal not to beat his slave was a
threat. The sea rescue case comes closer to the addict case, which Rhodes resolved
into two conditionals:
20
Or as Edmundson calls it, P’s “declared unilateral plan” [1998,81]
Nozick suggests that one way to turn it into an offer would be for Q to be the sort of moral
monster who deserves to drown [1997, 27]
21
19
If addict does base deed, then dealer gives addict drugs. (=offer)
If addict does not do base deed, then dealer does not give addict drugs. (=neutral)
According to Rhodes’s analysis the combination of offer+neutral=offer. The
sea rescue case could be similarly analyzed:
If A pays B a huge sum, A will rescue B. (=offer)
If A does not pay B a huge sum, A will not rescue B. (=neutral)
So it seems that applying Rhodes’s analysis to this case would again overturn
Nozick’s verdict, since like the drug addict case, it would be an offer not a threat. If
Rhodes’s findings differ from those of Nozick, at least in the drug addict case, and
as I have suggested, also in the sea rescue case, Rhodes believes this may have to
do with the tendency of theorists like Nozick to include background threats such as
those of drug withdrawal, or being beaten, as a baseline from which to determine
whether a proposal is a threat or an offer, rather than correctly focusing on the
relevant conditionals, as in Rhodes’s model [2000,375].
Nozick is not the only theorist to think that we need some sort of baseline in
order to decide whether the proposal constitutes an improvement or a worsening
of the status quo, which is to say, whether it amounts to a threat or an offer22 . As
Wertheimer also noted, the verdict we reach may further depend on the perspective
from which we assess the baseline. Wertheimer’s statistical test focuses on what is
normal in a given society, which might include longstanding customs about rescue
at sea. The moral test would attempt to decide whether Q has a moral right to
be rescued by P, and if so, P’s proposal is a threat [1987, 218]. Wertheimer’s
phenomenological test refers to Q’s preferences, which could rest on the mistaken
belief that P has a duty of rescue.23
Further, with respect to P’s duties in cases of private necessity and what Q may
have a right to expect, Epstein thinks it instructive to note that customs about
rescue at sea have led to admiralty courts refusing to enforce salvage contracts
where salvors have taken advantage of those in distress to drive a hard bargain
[1993,55]. Thus Nozick may be right to hold that proposal to charge a substantial
rescue fee is coercive. On the other hand Epstein does not favour enforcing a duty
of easy rescue. Most people are willing, often to the point of futility,to come to
the aid of others, while compulsion may only result in people leaving the scene to
escape liability [2003,100].24
As we saw, Edmundson does not offer any verdict about whether or not there
22
cf. Narveson, [2001]
P’s “declared unilateral plan” may rest on the belief that he is entitled to exploit his position
as a monopoly carrier.
24
Similarly, Epstein considers that tort jurisprudence may offer hope for resolving trolley problems; strict liability will prompt the trolley driver to ensure that his vehicle is in proper working
order and to take evasive action to reduce loss of life [ibid.,101-102].
23
20
is a duty of rescue in the celebrated sea rescue case. However, he does propose
a conclusion in his opening chapter on coercion which he thinks many will find
repugnant, namely that the law is not in fact coercive. He is led to this view
by two cases considered earlier in the chapter, namely the highway robbery case
and the robbery statute which provides for imprisonment upon conviction. While
Edmundson agrees that highway robbery is obviously coercive, in that it is immoral,
he denies that the statute threatening sanctions is also coercive [1998,82].25 But of
course coercive proposals are not simply those that propose immoral acts. Threats
which do seem necessary for coercion may or may not involve something immoral,
though they do introduce departures from the way events might have been expected
to unfold in the absence of the threat. According to Nozick such a course of events
might on occasion be the normal one or on the other hand the morally expected one.
However, contrary to Edmundson, we can still hold that the state acts coercively in
threatening the robber with punishment, but does not automatically act immorally
in doing so.This not to say that all uses of state coercion can be excused under the
same rubric as its attempts to prevent robbery.
Edmundson, of course, remains convinced that the cases he has presented are
a serious embarrassment for the view that the law is coercive, one of the “anarchical fallacies” to which unfortunately not only anarchists are susceptible, but also
“ACLU liberals, cultural conservatives, middle-of-the-roaders, free-marketeers, libertarians, and Marxists” [1998, 3]. As a working definition of coercion, Edmundson
offers the following: “Coercion marks the involvement of one person’s (or group’s)
will with another’s by means of a communication to the coercee that an otherwise
absent consequence will be attached to the coercee’s conduct in case the coercee
does not comply” [1998, 86]. While there is nothing particularly remarkable about
such a definition, there is nothing in it which would rule out the coerciveness of
law, something which Edmundson is supposedly anxious to do.
Although Edmundson thinks that the coerciveness of law tends to be assumed
rather than argued for, he cites an argument by Bayles to the effect that a legal
prohibition of some action is coercive since it results in our not performing an
action we might have performed prior to the enactment of the prohibition. However, Edmundson considers this a bad argument “because it assumes that whatever
makes an alternative less desirable is coercive” But it is not altogether clear what
Edmundson’s objection amounts to; coercive acts are those where P makes certain
alternatives less desirable for Q. On the other hand, as Nozick remarked: “the notion of coercion isn’t so wide as to encompass all bringing about of actions by the
bringing about of difference in relative position” Nozick thought that some ways of
getting someone to do something were coercive, namely threats, while others were
not, namely offers [1997,37-38]. Though Nozick’s point may not quite be what Edmundson had in mind either, since in his opinion,like many other eminent theorists,
“Nozick capitalizes on the popular view that the law is coercive” [1998,89].
25
Edmundson claims that the threat embodied in the robbery statute is no more coercive than
if the traveller were to repel the attempted robbery with his own weapon. Our view is that both
self defence and the statute involve coercion which may well be justified.
21
Edmundson’s possible allies
In addition to Nozick, Edmundson includes people such as Hart, Rawls and Dworkin
among the “philosophers and legal theorists too numerous to mention” who share
the popular understanding that the law is coercive, a thesis which Edmundson
insists will not stand up to serious reflection. In order to illustrate the broad
nature of this attack on law he cites MacCormick’s claim that: “The very existence
of a standing body of law defining offences and appointing penalties to offenders
marks in itself an intrinsic coercive feature of state societies. To have penalties
of any kind is to subject ourselves all and sundry to standing threats aimed at
securing our compliance with law for fear of the consequences of non-compliance”
[1982,243]. If we took this characterization at face value we might assume that
MacCormick is a proponent of the coerciveness of law, whereas in fact it turns out
that he is not, but rather holds a view similar to that of Edmundson.
Indeed, with respect to “the widely held view that positive legal orders are not
merely systems of operative social norms, but are also uniquely and distinctively
coercive systems” [ibid.,236], MacCormick’s aim is to show that it is false. In order
to do that, he first examines civil law proceedings to see in what sense they might be
considered coercive. He admits that at least at the sentencing stage, coercion may
well be evident when the defendant is ordered to prison or has his property seized
under a bench warrant, though he claims that such coercion is in the background
as opposed to being constitutive of legal orders [ibid., 238]Rather it is typical of a
civil law doctrine that it provide for reparation when rights are infringed, and as
such may give rise to disputes requiring authoritative settlement.
Similarly, in the case of criminal law, MacCormick claims that while coercion is
often present, it is not essential [ibid., 241]. Although he agrees that states are not
voluntary associations,one can imagine a world where defaulters might not have to
be coerced into accepting penalties,just as happens with club members [ibid., 242].
MacCormick’s point seems to be that if the law is coercive, as it invariably appears
to be, it is only contingently, and not necessarily, so [ibid.,244]. Perhaps, then, it
is not surprising that Edmundson did not lean more heavily on MacCormick for
support since what sounded at the outset like a strong denial of the coerciveness of
law proves on closer inspection difficult to distinguish from qualified assent.
However, given that deniers of legal coercion seem to be a distinct minority, it
should be noted that Morris also appears to share MacCormick’s view that coercion
is not essential to the definition of the state and its laws and that we can imagine an
ideal state whose citizens are only too happy to obey its just laws, with the result
that coercion is not necessary. We could of course concede the conceptual point,
since MacCormick and Morris are not the only ones to imagine that the coercive
state as we know it might in the fullness of time wither away. Morris understandably
does not want to make too much out of what we might or might not conceive, but
claims to be more concerned to determine the extent to which laws are correctly
described as coercive, even as a matter of contingent fact [2003,13]. According
to Morris, it was Hart’s critique of Austin which drew attention to fatal flaws in
22
the latter’s account of law as “coercive commands of a sovereign” Hart did indeed
question whether laws command or threaten in the way a gunman does, when he
orders his victim to hand over his money, or else. He thought that while penal
statutes came closest to the coercive model, they did not entirely fit the notion
of orders given to others because legislators were also subject to their provisions
[1961, 25,48]. Of course the fact that politicians are liable to be hoist by their own
petard need not imply that laws are any less coercive, as perhaps noted in Hart’s
reference to the “coercive framework of the law” [1961, 48]. While Hart certainly
thought that the notion of law as threats issued by a sovereign was largely limited
in its explanatory power to the fairy-tale kingdom of Rex, it nevertheless serves
as a salutory reminder to the proverbial man in the Clapham omnibus, that his
non-compliance could result in arrest and imprisonment [1961,60].
Moreover, a legal system as we know it will for Hart be characterized by primary
rules such as those restricting force and fraud, along with secondary rules which
tell us how the former “may conclusively be ascertained, introduced, eliminated,
varied and the fact of their violation conclusively determined” [1961,92]. Hart may
well be providing a more subtle and nuanced account of the coerciveness of a legal
system than Austin, but law is still very much in the business of telling us what we
or some official must do [1961,113]. Again, Hart reminds us in the first sentence
of his Preface that his aim was “to further the understanding of law, coercion and
morality” [1961,v], while in his penultimate chapter, “Law and Morals,” Hart speaks
of the forebearances common to law and morality, which consist, for example, of
prohibitions on violence towards others. While most will “co-operate voluntarily
in a coercive system,” sanctions will be required “for the coercion of those who
would then try to obtain the advantages of the system without submitting to its
obligations” [161,193] Any doubts that Edmundson was right to place Hart in the
camp of those who subscribe to the coerciveness of law should be set aside by Hart’s
later verdict that “the use of legal coercion by any society calls for justification as
something prima facie objectionable” [1963,20], and to which we,of course, are
entirely sympathetic.
However, Morris claims that his particular concern is with “the centrality of
coercion” something he takes to be evident in Rawls’s observation that “political power is always coercive power backed by the government’s use of sanctions”
[1993,136]. Morris responds to Rawls that law may be coercive but isn’t always
so, for example, the legal duties of officials [2003,17]. Again it isn’t clear why such
laws would count as examples of laws not backed by sanctions, since the duties of
officials, like any other legally imposed obligations, are at least in theory subject to
enforcement.26 Morris thinks that in emphasizing the extent to which liberal states
rely upon force and sanctions, we may overlook other resources at their disposal,
of which the principal one is authority, about which we shall have more to say in
the following chapter. States may also lead their citizens to modify their behaviour
26
Whether or not officials are actually sanctioned for their dereliction of duty is another question.
Milke suggests that much bureaucratic malfeasance passes “under the public radar” [2006,123]
23
by taxes and licensing, exemptions for charity27 or recognition for public service
[2003,23]. Such a view echoes MacCormick’s claim that many government inducements are non-coercive, or “built into the social structure of state societies, rather
than by pain and penalties alone” [1982, 246].
Although the state may have various ways of ensuring compliance, as Morris
and MacCormick suggest, that does nothing to diminish the coerciveness of its
orders. Those orders may ensure compliance without the use of force, but the
threat of force is never far away, and such threats are coercive. Non-compliance
may very well be met with various levels of force, as someone who attempts to ignore
a tax assessment, or practise medicine without a licence may very soon discover.
Nevertheless, Morris insists that the state is often in the business of offering the
proverbial carrot rather than a stick, a view for which he finds support in Mill. But
while Mill allows that government might provide advice and information, rather
than issuing commands and penalties, this is something it rarely does, if for no
other reason than that Mill thinks it improbable that government should prove a
useful repository of knowledge [1970, 305,317].
While Mill thought that government did not necessarily meddle, nor did it
trust that goods could be reliably supplied privately, it often set up a parallel arrangement, which eventually crowded out individual initiative. Thus, as Holcombe
comments, the libraries once built by Carnegie are now supplied by government
[2000, 259]. Seldon argues in a similar vein that the welfare state was primarily
a political contrivance serving the state and its employees rather than, as is often
thought, a rescue service for the working classes adrift on the sea of the Industrial
Revolution. By the early 20th century most workers were insured privately against
unemployment and sickness; it is thus a historical fiction to claim that they lacked
such benefits until the state ensured compulsory enrolment [2002, 62-63,67]. As for
other public works such as bridges and railways, for which a reasonable business
case might be made, based on the tolls or fares to be collected, Mill noted again
that compulsion is never removed entirely, because governments typically resort to
taxation to finance such projects, along with the panoply of “expensive precautions
and onerous restrictions” required to prevent tax evasion [1970,307].
Thus where government is concerned, supposed carrots look upon closer inspection to have a distinctly wooden character about them, a fact which Morris appears
to recognize towards the end of his argument, where he notes that it is reasonable
to assume that laws will be backed by sanctions to ensure compliance [2003,27].
Moreover he seems to assume that a government monopoly is required to restrain
the recalcitrant and that the preferences of such a monopoly can be equated with
the “social order” On the other hand, like MacCormick before him, Morris wants to
maintain that it is simply a contingent fact about laws that they tend to be backed
up by sanctions rather than that they are necessarily so. MacCormick doesn’t say
whether he considers it logically necessary that a legal order determine rights and
27
Holcombe argues that while charitable exemptions might look relatively benign, decisions
about awarding tax-free status are typically arbitrary and bureaucratic [2000, 247].
24
define offences for the members of a society, perhaps because that is what it means
to have a legal order, or whether that is just what as a matter of legal history it
happens to do. Nor is it clear whether he thinks some necessity attaches to the
particular rights and offences which loom large in our system, or whether they are
simply those we happen to think important. If sanctions are not exactly necessary,
Morris thinks that they are a virtually universal accompaniment of legal orders,
given that humans are the way they are, or as Raz put it, laws without sanctions
are logically possible, but humanly impossible [1990, 158-159].28
2.2.3
The coerciveness of law and the presumption of liberty
Undeterred by the fact that writers such as MacCormick and Morris offer a good
deal less than resounding support, if indeed they offer any at all, for his attack
on the coerciveness of law, Edmundson insists that the rhetorical purpose of the
received or, as he calls it, pre-reflective view, is to shift the justification of coercion onto the state and its legal apparatus. He argues that it therefore serves a
similar function to its near relative, the presumption of liberty, which has likewise
suffered from a dearth of critical scrutiny. In the hope of remedying this deficiency
as well, Edmundson asks in what sense we are entitled to make any presumption in
favour of liberty in the first place. Indeed, he considers Rawls, for example, to have
definitively rejected any such presumption. However, while supposedly not assigning any special value to liberty, Rawls claims that there is “a general presumption
against imposing legal and other restrictions on conduct without sufficient reason”
[1993,292].
Even Edmundson admits that Rawls’s formulation sounds an awful lot like a
presumption of liberty,if there were indeed any such thing [1998, 92]. As Feinberg
put it, “If a strong general presumption for freedom has been established, the
burden of proof rests on the shoulders of the advocate of coercion” [1973, 22].
Edmundson of course thinks that Rawls has simply affirmed the consequent without
having established the antecedent [ibid.]. Moreover, Edmundson takes Rawls’s
supposed failure to establish a strong presumption of freedom as indicative of the
fact that this presumption has disappeared from serious political philosophy. One
of the arguments that might be offered in support of such a presumption is that
liberty is a good, to which Edmundson responds that this would not accord priority
to liberty since it is only one good among many [1998,93]. One might contend that
liberty is at the top of the heap of goods; Rawls seems to have thought that the
golden age of liberty would eventually be ushered in, where “the desire for liberty
is the chief regulative interest that the parties must suppose they will all have in
common in due course” [1971,543]. However, since for Edmundson such arguments
have failed to clearly establish any abstract presumption of liberty, he claims that
28
Raz also goes on to point out that he considers the claim that resort to sanctions is not part
of our concept of law to be controversial [ibid.].
25
liberalism has turned to something more concrete, namely the coerciveness of law,
which will in turn prove as otiose as the presumption of liberty.
Of course, there is just no reason to think that liberty qua good is simply
one good among many. Liberty is more appropriately seen somewhat negatively,
as the absence, rather than the presence of some quality or other. Thus Lester
writes that liberty, at least of the interpersonal variety, is “the absence of imposed
cost” [2000,59]. Force and fraud typically impose such costs, as in Jasay’s robbery
example, where one is coerced into handing over the wallet one would rather keep,
which is to say the handing over of one’s wallet is imposed [1991,19]Rather than
a value in and of itself, Narveson reminds us that as “the absence of disabling
obstacles to action,” it is a precondition to doing other things we value [2002b,38].
While Edmundson claims to have shown that the truism of the coerciveness
of law should now be discounted as beneficial to political philosophy,like the presumption of liberty before it, upon closer inspection he has offered no convincing
grounds for revising the thesis that the law is coercive. For that matter, nor does
it seem that the presumption of liberty, from which such a thesis flows, has vanished from serious political philosophy. With respect to Rawls, for example,it may
be that his ideas about the priority of liberty have shifted, perhaps due to Hart’s
criticisms.29 In any case Rawls revised the first of his two principles of justice to
read: “Each person has a right to a fully adequate scheme of equal basic liberties
which is compatible with a similar scheme of liberties for all” [1993, 291].
Even in Rawls’s revised standard version it hardly seems to be the case that the
presumption of liberty has vanished, any more than it has from other writers who
are much clearer about the role of liberty than he is: Hospers thought that equal
freedom for all could only be secured by recognizing limits, so as not to violate
the freedom of others [1971,12], while Narveson speaks of a sphere of “rightful
liberty,” whose limits are determined by what would infringe upon the rights of
others [1988,7]. Dworkin also points out that he understands liberty in the negative
sense of freedom from legal constraint, particularly in matters of great importance
[2002,120]. If Dworkin’s aim is to subsume liberty under equality of resources, this
is in order to better reflect the status we accord it [ibid. 183]. As for Edmundson’s
claim that the coerciveness of law and the presumption of liberty from which it is
derived no longer have anything to offer to political philosophy, this is just false.
Rumours as to the demise of both the presumption of liberty and the coerciveness
of law appear to have been greatly exaggerated.
2.2.4
Malum prohibitum v. malum in se.
For most of his discussion of coercion Edmundson claims to have proceeded on
the assumption that the law’s proposals are not wrongful. He also argues that if
also we assume a moralized view of coercion, as Nozick does, we will find it harder
29
See Lomasky [2005,181]. Rather than despairing of establishing the priority of liberty, as
Edmundson argued, [1998,92], Hart thought that Rawls had failed to do so [1985,247]
26
to reject the conclusion that the law is not coercive.Edmundson contends that a
robbery statute, for example, will make it more difficult to adhere to the thesis that
the law is coercive, because those who think that the law should punish robbers
will not believe that such a law is coercive. We have denied all along that there
is any such difficulty, something Edmundson himself appears to recognize when he
agrees that finding the law coercive is not necessarily to condemn it [1998,106].
Moreover, he thinks that at the very least a finding of coercion places a burden of
justification upon the law, which in our view is as it should be. However, in his
final chapter on coercion, Edmundson elects to test the assumption that the law’s
proposals are not wrongful by moving away from criminal law which provides the
most plausible examples of the non-wrongfulness of law by outlawing behaviour
generally considered morally wrong, or malum in se.
Edmundson instead tests the assumption on malum prohibitum cases or those
where the act is not wrong in and of itself, or not malum in se, but wrongful, if at
all, only because illegal. Indeed, such laws constitute the bulk of modern statutes,
but are a likely source of the coerciveness of law, since their proscriptions appear
to lack any independent moral warrant and should therefore be more difficult to
justify [1998,110]. Edmundson responds to the view that there is a class of laws
which exceed their moral warrant by appealing to the “Principle of Fairness,” to
which he already had occasion to refer in his opening chapter, and which can be
traced to writers such as Hart and Rawls. According to this principle, if others
have contributed to some aspect of the common good, it is unfair of us not to do
likewise,since,as Hart points out,we benefit from restrictions others have imposed on
themselves for the general welfare [1984,85]Indeed, Edmundson claims that failing
to do one’s bit, although a malum prohibitum, is morally wrong [1998,111], which
if true, of course, appears to collapse the distinction between the two classes of
wrongs.
In fact, Edmundson assimilates the malum prohibitum cases to the rules of the
road,which are paradigmatic of those regulations necessary for coordinating the
actions of a diverse populace [1998,110]. With the benefit of hindsight,he professes
to have become persuaded of the fundamental truth of the Principle of Fairness,
when he was upbraided by a fellow pedestrian for having disobeyed a crossing light.
Although he apparently thinks this a good example of what Hart had in mind, it
remains unclear how he is supposed to have benefited at the expense of the other’s
compliance, particularly in view of his own earlier remark that jaywalking is unlikely
to herald the decline of civilization [1998,28]. Moreover, the Principle of Fairness
has been attacked, most notably perhaps by Nozick , who finds it “objectionable
and unacceptable” He asks us to consider whether we are obliged to take our turn in
providing neighbourhood public entertainment simply because others have agreed
and already done so. Nozick thinks that even if we add a rider to the effect that
the benefits accruing from the performance by others were greater than the costs
of your doing your share, it would still have to be the case that there was nothing
you would rather do than stand at the microphone on the day in question.
Edmundson responds that Nozick’s attack might be less compelling if it were to
27
involve something less frivolous, such as monitoring the city’s water supply [1998,
112, n.22]. No doubt there are many ways of managing water and sanitation,
ranging from the fully private to the socialized systems of recent years, but given
the predominance of the latter, we could respond that it was too risky to be left in
the hands of volunteers, and it wouldn’t be efficient to provide adequate training for
one day’s work. In cases where volunteer labour is something of a tradition, such
as jury duty or blood donation, possible undersupply could be met by increasing
compensation, where it is poor or non-existent, bearing in mind that others such
as lawyers and bureaucrats live quite handsomely off the avails of such industries.30
Nozick again reminds us that the fact that we live in societies and benefit from the
contributions of countless others who have gone before us does not mean that we
have amassed a debt to “society” which can be called in whenever its self-appointed
spokesmen decide [1974,90]. Thus, we would submit that Edmundson’s strategy of
showing that laws of the malum prohibitum variety turn out to be indistinguishable
from those that more clearly track morality, or malum in se, fails; the former do
indeed constitute paradigm cases of the coerciveness of law,and if wrongful,it is only
because they are illegal.They can therefore be expected to present acute difficulties
for the state’s carrying its burden of justifying them.
2.2.5
The coerciveness of the state’s monopoly on enforcement
At the end of his discussion on coercion, Edmundson takes up the question as
to whether the state’s assumption of a monopoly on punishment itself constitutes
a classic case of wrongful coercion, as some have argued. Such writers contend
that the state is acting immorally when it abridges our right to self help, to punish
those who have wronged us. Appealing to Hohfeld’s distinction between liberty and
claim rights, Edmundson contends that there is is no such right, which theorists
from Locke to Barnett have defended.31 While individuals may have a claim to
punish their wrongdoers, in respect of others they only possess a liberty, which the
state may override without prejudice to any strong rights individuals have.
In response to Edmundson, the distinction between claim rights and liberties
is not altogether clear, any more than it is clear which of the two best accounts
for a supposed natural executive right to punish. It may even be some mixture
of the two, as seems to be the case with property, where an owner’s liberty to
use a piece of property derives from a claim right to the property in the first place
involving proper transfer of title. Indeed Edmundson appeals to a property example
to clarify the right to punish, suggesting that if all you have is the liberty to use my
car on occasion, you have no right to complain if my need to use it conflicts with
yours [1998,121]. If, as Jasay points out, the basic example of a claim right is “the
30
31
cf. Rothbard [1978,90]
see Locke [1960,208]; Rothbard [2002,89-90]; Barnett [1998, 214].
28
contract of sale, lease or debt” [1991,48], those are the ways I acquire a stronger
claim right to your property, including the liberties of use or disposal.
If liberties tend to ride on the back of claim rights, at least when it comes to
property relations, Edmundson’s example doesn’t do much to explain how it is that
punishment functions differently. It seems essential to Edmundson’s account that
we be able to detach liberties from their underlying rights in order to allow for the
fact that the right to punish did not entail that others, especially the state, not
interfere in the exercise of your right. Edmundson does not seem to have noticed
that in thus removing a major obstacle to the state’s assumption of a monopoly
on punishment, it is unclear how the state itself could ever acquire more than
an unprotected liberty to punish. A central claim in Edmundson’s argument for
the authority of the state, which we shall take up in the next chapter, consists
in reducing the burden of the duty incumbent upon its subjects to one of noninterference in the administration of the law. It is not clear what the source of this
duty of non-interference is, unless the state, unlike individuals, has a claim right to
administer the law including punishing offenders.
Nevertheless, Edmundson appeals to Nozick to shore up his view that our liberty
to punish is not protected from interference by others, notably the state. Although
Nozick is inspired by Locke, who held that individuals possessed a natural executive
right to punishment [1960, 271], Nozick does in fact think that confusion and disorder, which Locke himself anticipated as an objection, would indeed follow a regime
of “open” punishment to which all hold a strong or claim right. Nozick therefore
suggested modifying Locke’s view, so that unlike compensation, punishment is not
owed to the victim, and not subject to his authority [1974, 138] Of course, as Rothbard has written, there is no reason to distinguish punishment from compensation;
punishment or compensation is owed to the victim rather than “society,” though
the victim may waive his right to punish for suitable compensation. Indeed, for
Rothbard, compensation might well amount to “two teeth for a tooth”; the thief
would be liable to restitution not only for the property wrongfully taken but for
an amount equal to the value of the property for personal distress caused to the
victim [2002, 86,89].
In fact, it may even be that double compensation falls short of the mark, a
suggestion Rothbard thanks non other than Nozick for [2002, 89,n.7]. However, the
Nozick of Anarchy State and Utopia thought that in order to avoid some of the
hazards of leaving punishment up to victims or their agents, punishment should be
a collective enterprise, which the agent chosen by the majority would eventually
come to dominate. Accumulating as it does the entitlements of its subscribers
apparently entitles the dominant protective agency to deny independents the right
to take action against its members, thus paving the way for the agency to gain a
monopoly on protection. Moreover, the prohibition of behaviour which might set
its subscribers at risk will itself call forth compensation, to the extent that such
prohibition sets the independents at a disadvantage.32
32
One suspects that this compensation may not be as generous as that supposedly suggested
29
Again, it is not clear why the protective association can only aggregate the
entitlements of its subscribers33 and not the hazards which supposedly attend individual enforcement. Moreover, the sum of what both Edmundson and Nozick
claim are unprotected liberties is still an unprotected liberty, which is to say, as
Schmidtz observed, the dominant protective agency fails to gain a claim or strong
right to punish which is not subject to interference [1991,36]. Thus, if there is a way
of demonstrating that the state’s monopoly on punishment is not wrongful,which
is what Edmundson hoped to show, neither he nor Nozick have produced it. On
the contrary, the independents do not act wrongfully if they decide to pursue their
own wrongdoers, though as Rothbard pointed out, victims will likely, even under a
libertarian dispensation, resort to other party private enforcement and adjudication
services [2002,90; also n.10].
However, Edmundson thinks that that few are likely to agree that an independent who had not surrendered his Lockean executive right could rightfully punish an
O.J. Simpson if he were found guilty of murder as charged. Indeed, not only is there
much theoretical interest in legal traditions which predate the state’s monopoly, one
suspects that the proverbial man in the Clapham omnibus might well find it preferable to exercise his natural executive right, at least on occasion, to sitting on a jury
for months on end, only to have the likes of O.J. walk away scot-free. If recent
terrorist events in London and elsewhere are any guide, the man in the bus may
have to be a good deal more proactive, since the authorities typically only arrive
in time to pick up the pieces. Self-help, subject to differing degrees of control,
goes back at least to the Twelve Tables of Roman Law dating from 450 BC, which
according to Cicero, boys learnt by heart at school. According to Nicholas, one
might punish a thief on the spot, provided one called out, or one might haul him
and his stolen property before the magistrate who would order him scourged before
handing him over to the victim [1984, 209]. In fact, Edmundson’s conclusion that
the coerciveness of law “cannot be easily sustained” [1998, 123] is somewhat less
grandiose than his earlier claim that it is a fallacy typical of those who think, for
example, that government is not entitled to a monopoly on punishment. If it were
really a fallacy to hold that the law is coercive then one wouldn’t have thought
that it could be sustained at all, but rather ought to be consigned to the trash
bin of history, along with its cousin, the presumption of liberty, as he himself also
recommended at one point. However, as I trust I have shown, it is Edmundson’s
case which is much harder to sustain than that of his opponents.
Indeed, in so doing I have responded to Edmundson’s challenge to produce
argument to support the view that the coerciveness of law requires justification,
rather than adopting it as a “ritual shibboleth.” I have argued that the law is
coercive, and that this fact does place a burden of justification upon the state and
its law. Moreover, as Benson points out, many areas of contemporary law appear
to have little justification, having begun as attempts to consolidate royal power, a
to Rothbard: cf. Nozick [1974,81-84,110-113]
33
Nozick appears to think that the sum of all the entitlements is somehow greater than the sum
of its parts [1974,140].
30
project which has continued unabated under representative democracy [1990, 87].
Although Hart was of the opinion that the simple doctrine of sovereignty could
have benefited from radical surgery, Rex still appears to be live and well: “where
there is law, there is ultimately to be found latent beneath the variety of political
forms, in a democracy as much as in an absolute monarchy, this simple relationship
between subjects rendering habitual obedience and a sovereign who renders habitual
obedience to no one” [1961, 73,49].
On the other hand, under the decentralized legal system envisaged by Benson,
there is no question of protection firms arrogating to themselves rights not held by
individuals [1990, 294], or to paraphrase Nozick, having more entitlements does not
mean being more entitled [1974, 190]. As David Friedman emphasizes: “Government is an agency of legitimized coercion” [1989, 112], a view echoed by Rothbard,
who reminds us that only the law and order provided by government legitimizes
coercion; in the absence of a state apparatus supported by coercive taxes, there
would be no levers of power for private protection agencies to seize hold of and
transform themselves into something more nearly resembling a state [1977b, 7].
2.3
Summary
We reviewed several prominent accounts of coercion, beginning with Nozick’s well
known essay, where he proceeds from the necessary and sufficient conditions for
standard cases of coercion, to the more difficult ones of distinguishing threats from
offers or warnings. In the second part we took up the question of whether the
state and its law were coercive, by way of response to Edmundson’s claim that
they weren’t. Edmundson admits to being in the minority on this view, since most
political philosophers would deny Edmundson’s contention that the coerciveness
of law is a fallacy. We introduced Edmundson’s distinction between laws that are
malum in se and the great majority of statutes and regulations that are malum
prohibitum. Having little or nothing to do with obvious moral questions, the latter
are more difficult to justify, and we reject the attempt to do so by appeal to fairness.
Finally, we reject the state’s monopoly on coercion as simply an example of the
sovereign prerogative which did not die out with absolutism, a question we return
to in the final chapter.
31
Chapter 3
Authority
I trust I have clarified somewhat the notion of coercion, if only to re-affirm that
pace Edmundson, one can coherently speak of the state as a coercive order. Some
writers who do not necessarily share my skepticism of the state and all its works,
nevertheless record the fact that modern democratic states compel uncritical obedience from their citizens [Dunn,2005,19]. Having established that the state is “a
powerful bully,” to use Edmundson’s turn of phrase, let us now turn to the question of its authority to be the bully it is. In Edmundson’s view, we should find it
worrisome that the law is nothing but a powerful bully, even if its demands largely
overlap with those of morality [1998, 34].
However, those of us who are interested in advancing liberty while constraining
coercion are probably much less concerned with the convergence between morality
and law than where there is little or no such convergence. To use Edmundson’s
terminology again, we find the class of malum prohibitum, or conduct wrong by
virtue of being prohibited, which apparently constitutes the bulk of the state’s
legal and regulatory endeavours,1 more troublesome than that of malum in se, or
what most agree to be wrongful and typically oppose at least in principle.2
Even where the state touts its intervention as some sort of moral crusade, it is
unlikely that it represents much of a departure from malum prohibitum. In the last
couple of years, for example, the US Dept of Justice has been pursuing a criminal
investigation of the Mercedes division of Daimler-Chrysler for having paid bribes as
part of its overseas operations in Africa and Latin America. What isn’t at all clear,
however, is that bribes are morally wrong. While we might all prefer a situation
where governments were not powerful enough to grant favours, various writers have
argued that bribes of one sort or another may be simply a cost of doing business
1
Newspapers regularly report such interventions, such as that of La fromagerie Boivin, a fourth
generation cheese-maker in Quebec, who fell afoul of federal regulations when they decided to
depart from time-honoured methods for ripening cheese by deep-sixing ten barrels to the bottom
of the Saguenay River. Since this technique is largely untried it lacks the requisite bureaucratic
approval [Globe and Mail, July 29, 2005].
2
cf.Epstein [2003, 57].
32
in many foreign countries.3
About malum prohibitum cases in general, Edmundson observed that: “citizens
don’t appear to be under any extralegal moral duty to conform to the dictates of
the law, and therefore it seems natural to say that the law’s proposals are coercive;
they are coercive, and until the state carries its burden of justifying them, they
are presumptively illegitimate” [1998,110]. In our view, legal orders in general are
coercive; what is peculiar to the class of malum prohibitum is that the burden
of justification will be much more difficult to discharge than those where they
incorporate an extralegal moral duty. With respect to the latter, the malum in se
class, which are directly derived from moral duties, such as refraining from force,
theft or fraud, compelling “righteous conduct,” as Edmundson puts it [1998,34], is
in fact legitimate, either on the part of the individual resorting to self-help, or as
Simmons reminds us, on the part of states to which a similar right of punishing
wrongful acts may be extended [1993, 265].
Given that the state appears to lack moral authority for much of its legal coercion, we shall return to the earlier chapters of Edmundson’s work to see what
sort of argument he is able to offer in favour of the state’s legal reach extending
far beyond the narrow band of malum in se cases. Edmundson’s opening salvo
is in fact directed against those of us who have succumbed to the siren song of
philosophical anarchism led by writers such as R.P.Wolff, in the hopes of rescuing
political philosophy from slipping once again into obscurity, as it had supposedly
done at the hands of the positivists.
In fact, Edmundson has set himself the task of explaining how we can have a
legitimate political authority, if as Wolff and other philosophical anarchists have
argued, we have no general obligation to obey the law. Edmundson finds it particularly troublesome that it has now become quite fashionable in influential centres
of learning to hold that that there is no such obligation [1998, 31-32]. Godwin, for
example, had argued that neither morality, justice nor common sense could justify doing the bidding of something calling itself the government [1976, 228-229].
More recently, Wolff has written that the authority of the state, entailing a duty of
obedience, is in direct conflict with the autonomy of the individual [1970,18].
As a prelude to showing how we might ground legitimate political authority in
the face of attacks by philosophical anarchists such as Wolff, Simmons and Green,
Edmundson begins by reviewing some of the arguments which have been deployed to
defend political authority, most of which have proved unsatisfactory for one reason
or another. Perhaps the best known of these is that found in Plato’s Crito, where
Socrates’s interlocutor, after whom the dialogue is named, encourages Socrates to
escape rather than submit to the death sentence. Socrates believes that he is obliged
to abide by the laws, rather than follow Crito’s suggestion, which Socrates considers
the sort of behaviour one might expect from a slave, rather than a citizen.Socrates
3
Rothbard [2002,129-130] holds that it is not wrong to offer bribes, though depending on one’s
employment contract, it may be wrong to take them;cf. Rockwell [1997]; Lemieux [2005]; Machan
[2002c,152]
33
believes he is beholden to the well governed city which has nourished him from
birth, and would rather suffer at its hands than bring the law into disrepute by
going into exile.4
With respect to the question of emigration from an unjust regime, Nozick asked
why that should be necessary, rather than staying and simply being able to opt
out of collective orderings [1974,173]. Socrates, of course, doesn’t think that either
option is open to him at this stage because of the contracts and agreements implied
by his long residence in Athens. However, it is not at all clear what is reasonably
required by such contracts, implied or otherwise. Socrates apparently believes that
they place us under an obligation to obey the laws, whatever they happen to be,
although he also held that injustice was an evil, he thought that fleeing would
amount to returning evil for evil. But as Narveson has rightly pointed out, while
martyrdom might be a useful way of drawing attention to injustice, it hardly seems
reasonable to think we are duty bound to follow Socrates’s example [2000c, 4].
Recent history has not lacked for unjust regimes, and among the most widely
discussed is that of Nazi Germany. Concerning the duty to obey the law, Edmundson wants to argue that indeed we have one, but unlike what Socrates was
proposing, it is at most “a prima facie rather than an absolute duty, or duty sans
phrase” As to the sort of duty residents of Nazi Germany could have been under,
for example, to report their Jewish fellow residents to the authorities, Edmundson
understands the notion of a prima facie duty to be one of obeying just laws, rather
than of obeying the law, period [1998,10-11]. The implication is that Nazi laws,
to the effect that citizens of the Reich had a duty to inform on their neighbours,
or that it was wrong of them to flee the Fatherland, are not sufficiently just as to
impose even prima facie duties, but, if anything, are plainly unjust on the face of it.
Indeed, as Dworkin remarks, those who claim that Nazi laws were just a mockery
mean that they lacked the properties of legal systems which would justify coercion
[1986, 103-4].
3.1
Consent
But even in the case of less wicked states, it is not clear in what sense we have
consented to obey the laws, as Socrates seems to have thought he did. Edmundson
notes that giving express consent can, under certain circumstances, give rise to a
duty, though he is less sure that,for example,traditional pledges of allegiance to God,
King and Country can reliably bind those they are supposed to [1998,16]As well as
forms of express consent, there are hypothetical varieties where it is supposed that
X is the sort of thing that the reasonable and informed individual would consent
to. Thus a doctor may proceed to treat an unconscious patient, believing that
the reasonable patient would consent to such treatment if he were able [1998,17].5
4
see “Crito,” Dialogues of Plato,1953, Vol. 1, 382-4
cf. Waldron [1993,49];Schmidtz[2006,98,n.39];of course,the doctor’s belief about hypothetical
consent could turn out to be mistaken, as in Malette v. Shulman (1987), 63 O.R. (2d) 243
5
34
Moreover, hypothetical consent arguments have been appealed to in justifying the
state, claiming that it would be rational to consent to the state if that is the only
alternative to the Hobbesian war of all against all. Though, as Schmidtz points out,
the proposition that the state is the only alternative is the only one doing any real
work in this argument and it is irrelevant to the justification of the state whether
rational bargainers would consent to it or not [1996, 87].6
Leslie Green considers the problem of political authority to be one of deciding
whether there are any valid reasons for wanting to bind oneself to the state [1988,
158]. Of the three sorts of reasons he thinks the most interesting, namely convention, social contract, and consent, he thinks the last is the most promising as a
source of political authority, though even here he concludes with the caveat that
in the absence of any compelling account of its validity, it will fail to provide any
general justification [ibid., 185]. Before addressing the question of the validity of
consent, Green however attempts to clarify what is or is not involved in consenting, especially the sort of consent that might be appealed to in justifying political
authority. In that context it seems that consenting is typically seen as a way of
undertaking an obligation [ibid., 162].
Plamenatz once remarked that “consent” had been used with many meanings
[1968, 1], a fact also noted by Green. We referred above to the question of consent
to medical treatment, and we might well wonder in what ways this sort of consent
is or is not like consent to the state’s authority. Raz, for example, claimed that the
fact that we readily granted authority to professionals such as doctors meant that
we were not precluded at least in principle from doing likewise with governments
[1990,12]. If the case of medical consent is unlike consent to government it is that
the former would appear to place much less onerous obligations on the consenter.
Another important feature of medical consent is that it can be withdrawn, even in
the middle of a procedure,and as Hebert points out, with the onus being on the
doctor to show that halting the procedure would cause serious harm to the patient
[1996,99-100].
However, in the case of government, Plamenatz concluded rightly that, despite
their insistence that they acted with the consent of the governed, present-day governments were more oppressive than any in history [ibid., 181]. Green also acknowledges ultimate authority which the state claims over people’s lives [ibid., 169], while
Dunn reminds us that, as we concluded in the previous chapter, coercion being the
defining characteristic of states, they have little interest in allowing their subjects
to follow their own inclinations [2000, 117-118]. Whereas doctors may well have authority over people’s lives, it is stops short of being all-encompassing and ultimate,
with obligations incumbent upon the laity mostly amounting to advice, which they
may ignore to the possible detriment of their health. We can fire our doctors, seek a
second opinion, or opt for alternative therapies, or even if we consent to treatment,
(H.C.J.), cited in Hebert [1996,28-29].
6
We might argue similarly with respect to emergency blood transfusions that the only proposition doing any work is that transfusions are the only alternative to death, in which case we could
sidestep questions about what the rational patient would or would not do.
35
we may be less than compliant. Only in cases of mental illness involving clear risk
to the patient and others can doctors order us to undergo involuntary psychiatric
assessment, which they doquaagents of the state.7
Or as Green puts it, while most of us know what counts as consent to the
use of one’s organs for transplantation, it is far from clear what counts as consent
to the authority of the state [ibid.,169]. He further argues that whereas medical
consent guarantees the patient’s say in his own well-being because of general presumptions of liberty and autonomy, political consent is largely about obedience to
higher authority [ibid.,181]. Indeed, it is typical of governments that they enforce
compliance by threats, with the result that, as Plamenatz claims, the government
of the free may not be less coercive than one of slaves [ibid., 175]. With political
consent largely in mind, Plamenatz defines consenting in terms of conferring a right
on someone, which he would not normally possess [ibid., 167]. Such a definition
could even account for the case of medical consent, where in the absence of consent,
treatment may constitute battery.8 However, Green objects to identifying consent
with its normative consequences, such as the rights or immunities it confers; in his
view, by incorporating normative consequences into the definition as Plamenatz has
proposed, we are as it were begging the question as to whether there is a satisfactory
theory of consent which would underwrite the state’s authority [ibid.,163].
While Green’s point is well taken, it perhaps should also be said that Plamenatz
has little to add to Green’s comparative study of consent. Plamenatz’s interest is a
somewhat different one, namely distinguishing what he considers the synonymous
notions of government by consent or responsible government from other types of
government [1968, 167-168]. As to the relative merits of such a form of government,
Plamenatz is of the opinion that representative, or government by consent, is better
than its alternatives, “given the conditions of industrial society and the aspirations
that men acquire inside it” [ibid.,166]. For the purposes of his particular inquiry,
Green recommends looking at consent as a way of acquiring obligations, rather than
the resulting obligations themselves. Plamenatz does not deny that one could look
at consent in the way Green suggests; it is just not relevant to the particular task
he has set himself [ibid.,172]. Simmons, on the other hand, with respect to what
he calls “consent in the strict sense,” speaks not only of the consentor’s handing
over of certain rights to act but also of agreeing not to interfere in the exercise of
such alienated rights [1979,77].9 Indeed, as we shall see later, Edmundson will argue
that the burden of political obligation need amount to nothing more than some such
special obligation not to interfere in the administration of government. Of course,
there are those who think that the duties owed to legitimate authorities are not
just negative ones of non-interference. Just how onerous those positive duties are
is partly a function of how closely consenting is seen to resemble promising. While
7
cf. Hebert [1996, 162-164]
cf. Foot’s discussion of the anthropologist who wishes to photograph for scientific purposes
an unwilling native servant [2001,48].
9
One is reminded of Stanley Baldwin’s supposed promise on giving up the premiership in 1937
not to spit on the deck or talk to the man at the wheel.
8
36
Edmundson notes, for example, that promising is a good example of how express
consent can give rise to duties [1998, 15], Simmons argues that the sort of consent
he is interested in differs from promising in a number of ways. For him the primary
function of consent is authorizing, with obligation upon the consentor playing only a
secondary role [ibid.,77]. Raz, on the other hand, thinks that political consent to the
state entails, among other possible duties, a promise to obey [1988,83]. How much
of an obligation is however quite unclear, though it is likely at most to be one of noninterference.But while Green thinks that we require actual consent of an individual
to the state’s authority [ibid. 162]. in order to become subject to any duties
flowing from the principle of pacta sunt servanda, in Raz’s view, unlike promises,
consent need not be identified with specific acts of individual consent to obligations.
Indeed, on this account there are other ways to incur duties or confer rights, short
of specifically consenting to do just that, [ibid.83],such as, after deciding to fly, one
finds oneself obliged to submit to a search and obey the cabin crew during flight.
Green still thinks that the justification for these sorts of obligation which come
by way of doing something else is different from those where we have voluntarily
assumed an obligation [ibid.,164].10
3.1.1
The appeal to estoppel
Adopting forms of non-intentional consent can give rise to an appeal to the legal
doctrine of estoppel to ground obligations to political authority, a move which Green
understandably wishes to block. According to Lord Denning in reference to Charles
Rickards v.Oppenhaim [(1950)1 KB 616], the term is “promissory estoppel,” by
which an agreed waiver to a contract may be considered binding. In the case cited
by Denning, Oppenhaim encouraged Rickards to continue working on a project,
even though it was likely to take much longer than provided for in the original
contract [1979,206,208]. Thus his conduct, if not his words, implied that he would
not enforce his rights under the contract, including refusal of delivery.
Of course, we then need to ask whether this principle has any relevance to
obligations we may or may not have to political authorities. In fact,I suspect,it
does not. As an example of estoppel, Green offers the case where by sitting down
at a restaurant, I agree to pay for any food ordered, even if I intend to leave
without paying [ibid., 163]. It would seem closer to the case cited by Denning if the
restaurant informed me, for example, that there would be some delay in my being
served, to which I responded that I was not in a hurry, thanks to my attractive
date, and had even accepted consideration in the form of free drinks while waiting.
The principle of estoppel, at least as understood by Denning, would then suggest
that that I had agreed to the revised terms of my contract with the restaurant
and would not be entitled to deny that I had done so and leave without paying.
10
Then again it seems that in contracting with an airline for their services, we contract into
a bundle of obligations with them and their regulators, as they do with us, some of which is no
doubt spelled out in the fine print. The question is whether anything like that happens with
states.
37
The case as envisaged by Green is perhaps closer to those who drive off from a
gas station without paying for which a proprietor may seek an appropriate remedy
such as a charge for theft.
In his discussion of democracy, to which we shall have occasion to refer in greater
detail in the next chapter, Singer in fact appeals to the doctrine of estoppel, at least
as it is more loosely understood, to elucidate his account of quasi consent. Singer
draws a moral lesson from that celebrated Australian cultural institution, the pub
“shout,” where those in a group take turns buying drinks for the group,and thus
oblige each to do so in turn [1974, 49]. No doubt much is to be learned from
such traditions of mateship and a “fair-go,” and perhaps less from ancient legal
principles. Someone nevertheless inclined to try his hand at free-riding, or not
giving his mates a fair-go, should doubtless place himself at the end of a large
shout, when with any luck his mates will no longer be in any position to notice
whether it was his shout or not. For that matter, nor will he, probably.
However, as to the value of any such appeal to a rather recondite legal doctrine,
we seem to have moved too far from the details of the case presented by the Master
of the Rolls for it to be at all clear how instructive it may prove in the question
of political consent. The point of the legal case was that we were not entitled to
return to the terms of the original contract when there was evidence of our having
waived them, or given our quasi-consent, as Singer would have it. In the case of the
state, assuming the initial agreement involved obeying the laws, it is not clear what
variation to that agreement the state is under estoppel now entitled to hold me to.
No doubt it will be said that this is a looser version of estoppel, which is perhaps
what Raz means when he talks of “various forms of quasi-estoppel.” In fact Raz
considers the appeal to such quasi-legal arguments misleading and pernicious, by
implying that individuals are obliged to obey even unjust laws[1979, 239, 240].
Moreover, as Green reminds us, since the state has no interests of its own, but
instead serves the interests of its citizens, an argument claiming harm to the state
or its authorities consequent upon rejection of obligations is entirely without merit.
Moreover,if any non-compliance could be shown to harm other individuals, in that
they rely on my compliance, this does not mean that I should be estopped from
not doing my bit and failing to acknowledge the state’s authority [ibid., 165]. Or as
Raz points out, the problem of basing a general obligation to obey on the supposed
harm to any individual caused by one’s non-compliance is that often one’s failure
to obey does not affect anybody, or if it does, it is not something we are necessarily
aware of.
3.1.2
Possible salvation in associative obligations
In the face of such difficulties, others, such as Dworkin, have suggested casting
the net a little wider to derive a form of obligation which might guarantee the
compliance on which it is believed others depend. Dworkin recommends taking
a second look at associative or communal obligations which in his view display
38
considerable moral complexity. These particular communal or family associations
are typically not overtly consensual, which is one of the reasons Dworkin thinks
philosophers have tended to shy away from them. Even those associations,where
there is an element of choice, such as our friends, do not in Dworkin’s view involve
the formal commitment typical of membership in a club [1986, 197].
One of the important features of such associative obligations is that they are
typically reciprocal, which should lead to a much higher degree of compliance.
Their reciprocity seems to result from their being special to a particular group,
as well as personal, with duties being owed to particular individuals, who have a
sense of what may reasonably be expected from one another [ibid.,199]. Not only
do the members of such groups evince fraternal concern for their fellow members,
but Dworkin also thinks it important that such concern be equal for all members,
which he takes to mean that no one’s life is more important than someone else’s, a
fact which will be reflected in the group’s structure [ibid., 200-201]. This equality
requirement apparently rules out, for example, caste systems, as genuine fraternal
communities.
By way of comment on Dworkin’s proposal, let us work back from the last
point about equal concern. Given the less formal nature of associations and the
relationships they give rise to, as compared with, say, contractual relationships,
I would have thought it difficult to be sure that concerns were always equal in
the requisite sense. No doubt caste systems more or less by definition consist of
groups with rather rigidly defined boundaries, but presumably within the caste itself
concern could reflect the equality Dworkin thinks is important. In that sense, castes
don’t seem very different from any other association, where personal reciprocal
relationships are confined to members rather than non-members, a fact which is
probably true of fraternal associations with which we are more familiar, such as
unions or professions.
Here Dworkin’s response seems to be that our obligations are not simply confined
to the associations we happen to consider primary, but that obligations, such as
those of reciprocity and equal treatment are owed in the end to all and sundry, since
there are manifold ways in which we are associated with the rest of the human race,
to say nothing perhaps of animals and the environment.Dworkin of course does not
wish to be so enthusiastic about associations as to ignore their downside,namely
discrimination in favour of their members, which he thinks will likely conflict with
their duties to treat non-members fairly [ibid., 202]. Dworkin has thereby produced
a deus ex machinafor ramping up obligations, beginning with those at the level
of a small association, until by a process of intertwining and ever more complex
and larger associations,we reach the polis or governing association, where anything
resembling a genuine association may well have disappeared.
Nevertheless, Dworkin insists on the hypothesis that political obligation is best
construed as associative, and that rather than trying to find a contractual basis for
collective decision making we would do better to look to the obligations generated by
our fraternal and communal associations [ibid., 206]. With regard to our obligations
39
to macro-entities such as the political community, Dworkin distinguishes what he
calls the “bare” community from the fully fraternal one which exemplifies more
ideal qualities such as reciprocity. The bare community of Canada would in the
first instance consist of the piece of real estate which standard atlases identify as the
country, along with certain minimal beliefs about the structure and functioning of
the state. Dworkin thinks that our associations may function at a higher level than
mere history and geography might suggest and that we respect the rules which
govern political outcomes. At a higher level still we understand the principles,
such as those of integrity, which underwrite those rules,with the result that our
associative community achieves moral legitimacy [ibid., 213].
Let us now look a little more closely at Dworkin’s proposal to see whether
associative obligations could offer any sort of satisfactory solution to the problem
of political authority and legitimacy, or whether he has simply side-stepped the
issue, a criticism he denies. Dworkin claims his opponents have two choices: reject
associative obligations or show why political obligation cannot be associative [ibid.,
207]. Of course, there is no reason to assume that these are the only alternatives
open to us. We first have to ask whether Dworkin has given us a satisfactory
account of associative obligations, before attempting to see whether they prove
a more fruitful source of obligations supposedly arising from collective decisions.
One important feature of associative obligations, at least as Dworkin understands
them, is that contrary to the tradition of voluntarism quite widespread in political
philosophy, they are quite often not a matter of choice. In fact, Dworkin claims
that we cannot account for associative obligations if we accept the view that the
only way we can incur obligations is by choosing to do so [ibid., 197].
So, what about the popular wisdom that, although we don’t get to choose our
family, we do at least choose our friends? Even in the case of family, there is considerable choice, such as when to leave the family into which one was born, perhaps
to follow one’s career or set up one’s own family elsewhere. Perhaps Dworkin would
not deny these choices, but as we develop a “shared history,” we assume the obligations that arise in the course of it, mostly without being aware that we have done
so. Dworkin’s organic account perhaps picks out some features of our associations
with family and friends, but says nothing about the fact that like all such associations they presumably evolve, or are shed, along with any obligations may have
been incurred in their wake. Further, one might wonder how closely many of these
familiar relationships exemplify the equal concern and reciprocity which Dworkin
seemed anxious to see in them. One suspects that some contractual relationships,
which Dworkin contrasts less favourably with associative ones, may well at times
exhibit more of the properties he considers typical of the latter.
Moreover, one would have thought that one of the more obvious features of
such familiar associations is that they presupposed emotional bonds of one sort
or another. Immigrants, including myself, have found themselves subject to what
Blainey has called the “tyranny of distance” [1966], which is to say that they are
at too great a distance to maintain much by way of reciprocal relationships with
40
families and friends at different ends of the earth.11 This still leaves the question
as to what sorts of ties remain between the black sheep of the family and his far
flung relatives, since lacking the requisite propinquity, there is little question of
authentic associative obligations. Many have thought that some sort of connection
remains, as suggested by the 1902 picture included by Blainey, bearing the caption:
“Emotional ties with Britain: Melbourne’s stock exchange had just sung the hymn
Old Hundredth on hearing that the Boer War was won” [1966, facing 293].12
While Dworkin acknowledges that emotional ties are widely thought to be important, he does not consider them to be an integral part of associative obligations,
since this would suggest, even at the level of large communities, that we had such
ties with every member, which of course we don’t [ibid, 196]. For similar reasons
Dworkin insists that in close relationships such as those with a sibling, the primary
feature is reciprocity rather than anything of an emotional sort, which just seems
wrong on the face of it, whether we are speaking of close or distant relatives. As we
saw, Dworkin had hoped to show that fraternity was a more promising source of political obligation than the domain of contracts favoured by philosophers. However,
in order to do that, he has found it necessary to give a less than plausible account
of the more familiar associative obligations, ignoring some of the fairly obvious features of their dynamic structure, such as voluntariness and emotions, in order for
them to fit the mould of any recognizable political obligation. With respect to the
dilemma presented by Dworkin, rather than denying all associative obligations, we
have suggested that his characterization of them is less than convincing.
If we are correct, we have shown that political obligation cannot be associative,
at least as understood by Dworkin. Even if he could show that political obligations
could be fashioned out of more mundane associative obligations of one sort or another, others have rightly questioned whether polities are in any important sense
associations. Rawls, for example points out that unlike the political, the associational is indeed characterized by voluntariness and affections [1993, 137]. Narveson
has also observed that in forming associations people do come together to pursue
some common goal. In the case of societies people just happen to be together, often
as an accident of birth, rather than having joined it for a purpose. This of course
has never prevented politicians from expatiating upon the purpose which society
patently doesn’t have and from ensuring that we shall never lack for guardians who
will diligently attend to its pursuit [2002a, 165]. However, Dworkin seems to think
that the virtues of the ideal association can somehow be replicated at the political
level. He asks us in fact to consider three models of society in ascending order of
virtue. At the lowest level is the one corresponding to the bare association mentioned earlier where citizens see their association as the sort of geographical and
historical accident which Narveson thought was typical of a society, as opposed to
11
Dworkin remarks that, if nothing else, distance may stand in the way of my becoming a
citizen of Fiji, since I don’t meet the bare requirements of geography which would form the basis
for richer associations [ibid., 202
12
Ties were apparently still strong enough a dozen or so years later for 60,000 of their compatriots to die for King and Country
41
an association. The next step up from this most rudimentary and inauspicious social arrangement is what Dworkin calls the “rule-book” society, which sounds much
like the political society we are familiar with, where we generally agree to abide by
the patchwork quilt of rules produced by legislative compromises [ibid.,210]What
we should be aiming at is the society of principle, rather than compromise, bearing
the hallmarks of an association whose aim is reciprocal and equal concern for its
members.
While Dworkin insists that by equal concern he stops short of asking that we
love our neighbours, this might be of little comfort, for example, to the attorney
whose reaction to a possible forced evacuation from his home in a well-to-do part of
New Orleans relatively untouched by Hurricane Katrina was that he would strongly
resist any such attempt on the part of the authorities. Instead of equal concern,
he claimed that the state owed him nothing but benign neglect, a duty which he
for his part would no doubt be only too happy to reciprocate. The fact that most
states have not reached the level of principled rather than pragmatic politics, and
as I have argued, are unlikely to ever do so, implies in Dworkin’s terms that they
lack legitimacy and represent, as he puts it, ” bare power in the name of fraternity”
[ibid., 214]. The recalcitrant lawyer from the Big Easy would probably be rightly
suspicious of the descendants of Citizen Robespierre invoking the name of fraternity,
thus rejecting any attempt to remove him from his property as nothing more than
the exercise of bare power.13
Dworkin, of course, thinks that if we could usher in the reign of a community
based on principle rather than compromise we would achieve that unanimity of
purpose which characterizes associations, though apparently we would still disagree
about justice and fairness [ibid., 214]. However, if it is true that we disagree about
justice and fairness, and I think he is probably right about that, then I am not sure
why we would agree about what it was to have an association based on principle,
even if that were possible at the level of a polity. On the other hand we find his
description of the run-of-the-mill political society all too familiar, with its welter of
“checker-board” or compromised statutes on everything from divorce to bankruptcy
drafted in response to the demands of particular interest groups. While Dworkin
thinks that by becoming an association of principle we could promote legal integrity,
Leoni thinks that we would do better to abandon politically created statutes and
return to a tradition where “law is, or was, essentially a private affair concerning
millions of people throughout dozens of generations and stretching across several
centuries” [1991, 88].14
13
Some 60 years after The Revolution, Bastiat wrote that no end of troubles resulted from
founding the law upon fraternity, genuine or otherwise, most notably the destruction of liberty
[2001, 81,39-40].
14
cf. Barnett [1998, 124]; Tamanaha [2006, 42]
42
3.2
Fairness as a possible foundation of political
obligation.
Before looking more closely at Edmundson’s account of legitimacy,let us briefly
examine another quite influential argument for political obligation, namely the argument from fairness. There is to be sure some connection between obligations
arising from some sense of fairness and Dworkin’s associational variety, characterized by equal concern and reciprocity, but which Dworkin in fact sees as improving
on obligations derived from fairness. One of the best known proponents of fairness
as a ground of political obligation was Dworkin’s predecessor at Oxford, H.L.A.
Hart, who was concerned that some might free-ride on others’ respect for the law
[1961, 213]. In the context of arguing how political obligation differs from other
right creating transactions such as consenting and promising, Hart held that those
who have obeyed the rules governing some cooperative venture have a right to expect that others similarly restrict their liberty, a right which may be enforced by
authority [1984, 85].
Hart’s formulation raises obvious questions about the sort of “joint enterprise”
he had in mind, and what the force is of its being conducted according to rules,
since considerations of fair play need not be confined to organizations with rather
formal sets of rules. Perhaps the rules determine how one becomes a member,
and what is expected of members vis--vis other members. The rules may vest
authority in officials, though one’s obligation to do one’s share may remain a moral
one over and above anything the rules may call for. Acknowledging his debt to
Hart, Rawls similarly emphasizes the moral nature of obligations of fairness which
are incumbent on all participants in a joint venture, none of whom wish their
compliance to be taken advantage of [1962, 144]. Although, as we saw, the later
Rawls claimed to distinguish the associational from the political, the fact that this
obligation applied to anyone who stood to gain from a regulated group effort would
appear to cover just about any such venture along that continuum. Rawls goes on
to explain that a paradigm case of the special prima facie duty which arises from
voluntarily accepting benefits, and which he claims to have borrowed from Hart, is
in fact political obligation. In opposition to some social contractarians, Rawls points
out that political obligation does not presuppose an actual promise or contract.
Although it may be overridden by mitigating circumstances, you cannot simply
refuse to do your duty when the time comes, but need to declare conscientious
objector status early on [ibid., 145-146].
Indeed, what Narveson calls particular rights, of which a typical example is
the right that other parties fulfil their end of a bargain [1988, 56], appear at least
initially to have something in common with Hart’s special rights. However, as we
noted, Hart seemed to think it important to show how the rights and obligations
peculiar to politics differed from those arising from promising or consenting. In
this context, I may be bound whether or not I have specifically agreed, though
Rawls apparently allows for some process of opting out, depending on the benefits
43
which have supposedly accrued under any such tacit contract. In this sense, political
obligations, although Hart contends that they are special, appear to impose general
duties on all and sundry, as suggested by his phrase “mutuality of restrictions.”15
However, to return to the question of special versus general duties, it seems that
Hart’s example of political obligation, since it is apparently incumbent on large
numbers of people, comes much closer to a general than to a special obligation.
However, Hart insists that while special rights, of the sort that supposedly give rise
to political obligation, justify an individual’s interfering with another’s freedom,
we appeal to general rights to ward off such interference [ibid.,87]. To the extent
that such general rights imply duties of non-interference on the part of all, they
amount to what are more often called negative rights, which on a libertarian view,
such as mine, constitute our fundamental moral rights. Special rights would then
be a variety of positive rights which give rise to positive duties, which you may be
coerced if necessary into performing. When we ask how it is that I acquire such
duties, it is because I have promised or contracted to perform some service to the
individual to whom it is owed, or as Hart puts it, I have “freely chosen to create
this claim” [ibid., 88].
Preferring not to be confined to promises or contracts, Hart and Rawls claimed
there was another way of acquiring such positive duties, namely “mutuality of
restrictions,”according to which those who first submitted to the necessary restrictions can insist that others do likewise. Leaving aside the question of who gets to
decide that something is a required limitation on freedom, presumably those who
first agreed chose to do so, therefore it is not clear why their choosing prevents
others from choosing not to if their priorities are different. To hold otherwise is to
say that citizens of the Third Reich had a duty to report dissidents to the Gestapo,
and that they did not have the option of choosing otherwise because that would
be unfair to those who had performed their duty. On the other hand, Narveson
reminds us that promising in fact illustrates quite well how positive duties may be
derived from more fundamental negative ones. One is not obliged to promise or
contract, but once having done so, one has a positive duty to fulfil it. Not to do so
is to interfere in the ability of others to do as they wish, since you have failed to do
what you said you would do, whereas in the case of Hart’s mutuality of restrictions
you have not agreed to anything, which is to say the restrictions are unilateral
rather than mutual [ibid., 60].
What is also clear is that Dworkin’s construing of political obligation as associative owes much to his illustrious predecessor. As observed earlier, Dworkin similarly
held that political association has it in common with other associations like family
and friendship that the more you associate the more likely you are to find yourself
collecting obligations [1986, 206-207]. Indeed, the first criterion of such associative
obligations was just as Hart saw them, they must be special to the group rather
15
Similarly, far from implying a right to do whatever you please, which as Narveson reminds
us, is tantamount to no rights at all, [1988, 45],libertarianism involves mutual restrictions on the
exercise of liberty, so much so that Freeman [2001]considers libertarianism in fact a rather illiberal
doctrine, at least in his sense of liberal.
44
than general duties owed to outsiders [ibid., 199]However, as Green pointed out,
one of the more obvious difficulties in attempting to piggy-back political obligation
onto family associations is that it suggests that the authority of the state is something akin to in loco parentis rather than a doctrine which applies to mature adults
[2004, 272]. The standard reply has been something to the effect that even mature
adults occasionally need information which only the state can provide to ensure
that decisions are taken in the public interest, a view which it is the aim of this
chapter to reject. As to the state’s ability to be uniquely placed to more efficiently
coordinate the actions of large numbers, Barnett has argued that this sort of centralized ordering of widely dispersed knowledge is largely a myth, and gives rise to
intractable difficulties [1998, 46]Even if the state could perform such wonders on
occasion, as Green observes, this would not constitute grounds for binding anyone.
Indeed a duty of obedience seems superfluous when the state’s armamentarium
already includes various weapons ranging from persuasion to coercion [ibid.].
Moreover, Green rightly reiterates his view that consent is necessary for the
obligation to obey, which is to say we cannot back into such an obligation without
really trying, as Hart and Dworkin would have us believe. If we reject the possibility
of unconsented obligations, whether they result from association or not, it may well
turn out, as Green claims, that people are under no obligation to obey, even if we
were not dealing with Stalinist Russia, but one of Dworkin’s true communities of
principle [ibid., 280]. Green further suggests that one thing we might expect a
theory of law to do is to explain how it is that law obligates. Dworkin seems to
agree that it is worthwhile to ask how law justifies state coercion, except in cases
where there are over-riding arguments,[ibid., 190]to which Green responds that it
is a bit odd to simply assume that political obligation is justified except when there
is some stronger argument against it.
In order to decide whether the law is or is not justified in using force, Dworkin
explains that we appeal to both individual rights and past political decisions [ibid.
93]. Moreover, he claimed in an earlier work that “what an individual is entitled
to have, in civil society, depends on both the practice and justice of its political
institutions” [1977, 87]. While past and present political decisions may in practice
dictate the justification of coercion and entitlement decisions, we are interested
in the normative question of how such measures ought to be justified. If they
are justified, it is because they are morally justified, a fact which may in turn be
reflected in political or legal decisions. Governments forever have decided that they
are justified in collecting taxes, and have produced mountains of law to back up
their claim. The right to tax is typically justified, according to Murphy and Nagel,
in the name of government services and distributive justice [2002, 3]. However,
following Nozick who observed famously that taxation amounted to forced labor
[1974,169], and Rothbard, that it is a coerced levy [1977b, 83], we are much less
likely to hold that taxes are a justifiable method of paying for government services,
if for no other reason than that, as Seldon points out, forced payment for such
services prevents their ever being put to the test of seeing whether those for whom
they are supposedly provided would pay for them [2002, 77]. As to how much we
45
might actually be inclined to contribute to ensure the continuance of some service
will doubtless be a function of our estimation of its importance in the light of our
financial means.16 With respect to the alleged authority to redistribute wealth,
as Nozick and Rothbard suggested, those from whom wealth is seized to give to
those whose need is greater, at least in the eyes of the Central Committee, are
condemned to slavery. Yet as Rand pointed out, “No man can have a right to
impose an unchosen obligation, an unrewarded duty or an involuntary servitude on
another man” [1967, 325]. More recently, Lester has written that “liberty is the
absence of imposed costs”[2000, 59],and, with medieval tenure now a thing of the
past, when it comes to you or your property, as Narveson puts it,”The owner is the
person you need to clear it with before you use it” [2008, 90].
We noted earlier that Dworkin’s doctrine of associative obligation owed much to
Hart’s account of political obligation, as did that of Rawls. However, it should also
be said perhaps that Dworkin claims not to be sympathetic to the popular defence
of legitimacy, such as that of Hart and Rawls, which is based on some notion
of fair play. According to Dworkin, such an argument makes the unreasonable
assumption that people can have favours and their resulting obligations thrust
upon them. Moreover, the argument from fairness is ambiguous, since it is not
clear in what sense people can be said to benefit from political organization. One
typical answer, Dworkin suggests, is that someone can be said to benefit if they
are better off under a particular regime than they would otherwise be, though
he admits measuring any supposed improvement may prove difficult [1986, 194].
Dworkin’s criticisms are reminiscent of those of Nozick who held that we should
be very careful of any attempt to premise a right to prohibit free-riding on the
supposedly joint enterprise to which Hart referred. Nozick offers a couple of reasons
for such scrutiny, first that unanimous consent to coercive government in the state
of nature appeared to be unnecessary. Second, such a joint enterprise was contrary
to Nozick’s rejection of group rights, to the effect that the sum total of individual
rights did not create new ones. Nozick then proceeds to examine the two options
open to Hart for grounding any right of enforcement, namely that it flows from
the nature of obligations in general, or from the obligation of fairness in particular,
both of which he will eventually reject [ibid., 90-91].
Hart for his part seems to have thought that in the paradigm case of promising
the right and obligation have to do with the voluntary transaction between the
parties, rather than that that there is some moral quality peculiar to promising itself
[1984, 84]. However, more important for this discussion are the special rights which
do not result from voluntary action, such as those involving mutuality of restrictions
thought essential to a joint enterprise. In this case, since the defence of voluntariness
would appear unavailable, Hart simply asserts that the initial cooperators are due
obedience by late-comers [ibid., 85]. a view which Nozick observes is notable only for
its lack of argument [ibid., 91]. Since Hart fails to show how a right of enforcement
derives from supposed non-voluntary mutual restrictions on liberty, Nozick explores
the option that such a right is a formal characteristic of all genuine obligations,
16
cf., Narveson [1988, 239]
46
finding that obligations do not invariably go hand in hand with any such right and
do not need to be understood against the background of a natural right not to be
forced to do something, as Hart argues. Indeed, as Nozick points out, I may waive
my right not to be forced to do A, which is to say that I release P or the state
from their obligation not to force me to do A, yet this does not create in me an
obligation to do A [ibid.].
Hart had claimed that the self-professed social co-operators had a right to enforce co-operation from those who might think it in their interests not to do so, but
as Nozick observes, since the converse does not hold, we may consider the obligation to do something as separate from the right to force you to do it. To illustrate
the fact that obligations are one thing and rights of enforcement another, Nozick
offers the example where A’s promising B that he will not murder anyone, while
not conveying to B the right to force A not to, since that is a right B already has,
does place A under an obligation to B [ibid., 92].
Having successfully driven a wedge between obligations and their enforceability,
Nozick also rejects as objectionable the celebrated principle of fairness.To support
this verdict Nozick, offers his equally celebrated counter-example of a joint enterprise consisting of a neighbourhood entertainment system where each listener is
supposed to take a term as DJ and do his bit to entertain his neighbours as per
the roster. However, Nozick does not think you are obliged to take your turn at
the microphone;you may prefer to do other things than get on board the neighborhood scheme, which raises the question as to how others can put you under an
obligation by setting up a venture themselves. Perhaps any such demand should
have to meet a cost benefit test in order to show whether the costs of contributing
to the community venture are outweighed by the benefits from the contributions of
others. Even if we conducted such a test, despite the fact that costs are subjective
and unmeasurable, Nozick concludes that the so-called principle of fairness would
remain objectionable as it would if you were to dump unsolicited books on people’s
doorsteps and later demand that they pay for them [ibid., 95].
3.2.1
From fairness to prima facie obedience.
Like Nozick and Dworkin, Edmundson also claims to have some reservations about
the principle of fairness touted by Hart and Rawls, since there does seem to be a
bit of a gap between a supposed natural duty to support just constitutions and a
duty to comply with the laws that happen to be on the books. As an example of
such a gap, Edmundson recalls an incident from his student days at Berkeley where
he crossed a deserted street on the outskirts of town against a “Don’t walk” signal.
Although he was not putting himself or any one else at risk by doing so, another
pedestrian waiting patiently to cross scolded him for his illegal behaviour. Although
Edmundson now finds himself occasionally thinking it unfair that he observes the
speed limit while others rocket past him on the freeway, he is still uncertain whether
he or the scolding pedestrian have any real reasons for complaint, at least any that
47
are grounded in fairness. Edmundson remarked earlier in the chapter that there
may be other grounds for complaint, if one believes as he apparently does, that
exceeding the speed limit can endanger lives. Indeed, he seems to be of the opinion
that the highway code offers much useful instruction on the question of obeying the
law, having begun his first chapter with the question of whether one had a duty to
stop at a traffic sign in the middle of the desert where there is good visibility in all
directions. In this case he considered that he had both a reason and a duty to stop
just because the law says so [1998,12]. Such a duty is to be sure prima facie rather
than absolute, which is to say that the duty to obey the law may be set aside in the
face of more weighty moral considerations, such as those that would rank refraining
from murder as more important than not jaywalking. In any case, if there is some
such prima facie duty to obey the law, various theorists have asked whether we
are to say about Germans in respect of Nazi law that they had a prima facie duty
to report the whereabouts of Jews to Nazi authorities, but that, given Nazi policy
toward the Jews, there was in fact no moral reason to comply. Edmundson modifies
his original claim of a prima facie duty to obey the law to read a prima facie duty to
obey sufficiently just laws. Since the Nazi state could not reasonably be described
as sufficiently just, it would therefore seem to follow that its citizens did not have
any such duty [1998, 111].
On the other hand Dworkin thinks that we need not deny that Nazi Germany
possessed a legal system, since it obviously did, though we can well understand
someone claiming that Nazi law was not really law, or a degenerate form of it
[1986, 103-104]. Dworkin still wants to allow that even in this context a German
judge could make a true finding, especially in a case with few political overtones.
Even in a case where statutes discriminated against a Jewish defendant, it might
be possible to justifiably, if only weakly find in favour of the Aryan plaintiff [ibid.,
106]. Edmundson, of course, does not favour Dworkin’s more nuanced approach,
believing that the case of Nazi law not only serves to clarify what it is to have a
prima facie duty to obey the law, but also that the Germans quite clearly did not
have any such duty because of the absence of justice in the Nazi state.17
With respect to the question as to whether coercion, which is supposedly justified by appeals to fairness, is prima facie wrongful or not, Edmundson suggests
asking a further question he thought relevant to determining what prima facie duties
Germans had vis-a-vis Nazi laws, namely to ask whether it would be appropriate
to feel badly about any coercion used in enforcing such laws, perhaps to the point
of awarding compensation to those on the receiving end. However,if it turns out
that Nazi or any other coercion was not justified, it isn’t clear what such a test of
remorse is supposed to accomplish- some may or may not feel remorse, regardless
of whether coercion was justified or not. Edmundson nevertheless concludes that
prima facie duties are only owed to a sufficiently just state, and not to a state
17
Perhaps Edmundson would have shared Churchill’s recently revealed opinion that Hitler merited the fate of a gangster rather than a sovereign, which is to say being put to death in the
electric chair, something Churchill apparently thought could have been arranged through Lend
Lease.
48
ruled by gangsters, where scruples about disobedience are entirely inappropriate.
Of course,he thinks it a relatively easy matter to decide what will count as a just
state, such that it may be reasonably thought to attract prima facie obligations.
No doubt Canada, or the U.S., qualifies, given a greater reluctance, for example,
to consign fellow citizens to concentration camps.18
On the other hand, Dworkin thinks we need to allow for contexts where we
find significant parts of our own law morally reprehensible, where there are only
relative differences between ourselves and the Nazi state [1986,107]. Edmundson
considers it obvious that we live in sufficiently just states, such that it is not prima
facie wrongful to coerce those who have benefited from a cooperative scheme from
doing their fair share. The question, of course, is who gets to decide that this is the
cooperative scheme we are involved in and that it is indeed fair, though it is doubtful
that that Churchill, Roosevelt and Mackenzie King worried much about it in 1943,
if only because they too probably considered the answer self evident. Among the
long list of potential candidates for calling the shots are the state, the government,
the House of Commons, whose servant, as Gilbert reports, Churchill claimed to
be [ibid., 104], the people, or some segment thereof, such as the neighbours who
have already contributed. If we are less hasty to rush to judgment, in the manner
Dworkin recommends, we might try stepping into Judge Siegfried’s shoes, which
might in turn encourage us to be more skeptical about the supposedly obvious
justice of our own states.
3.3
Edmundson’s response to philosophical anarchism
Having canvassed various skeptical views about political obligation in his opening chapter, which Edmundson admits, raise genuine doubts about any duty of
obedience[1998, 31]. he goes on to argue why any such doubts stop short of the
philosophical anarchism which is now widely thought to follow from a rejection
of political obligation. The first element in Edmundson’s account of legitimacy is
what he calls the simple correlativity thesis, namely that a state’s legitimacy only
is contingent upon its imposing on its subjects at least a prima facie duty to obey
its laws [1998, 36]. However, he agrees that the sort of skeptical views about political obligation which have become widely accepted in political philosophy in recent
years, together with his correlativity thesis, tend to undermine the claim that there
is such a thing as a legitimate state.
Since Edmundson is greatly troubled by the prospect of philosophical anarchism,
dropping the correlation between legitimacy and a duty to obey might look like a
18
Churchill, for example, declared at the 1943 Quebec conference: “Here at the gateway to
Canada, in mighty lands which have never known the totalitarian tyrannies of Hitler and Mussolini, the spirit of freedom has found a safe and abiding home” If Stalin was not added to the
list of personae non gratae, Gilbert reminds us that it was because considerations of prudence
prevented the leader of one of the Allied Powers from being added to the list of dictators [2006,105].
49
promising strategy. On the other hand, he notes that Raz, for example, holds
that having authority, de facto or otherwise, is not just a matter of influencing
people, but also one of issuing authoritative commands, since as he put it “the
justified use of coercive power is one thing and authority is another” “1990, 118].
Political authorities do indeed resort to coercion and threats, but for Raz, legitimate
authorities do more than that, since they claim to impose duties on their subjects,
and to the extent that this claim is justified, they are owed obedience. For Raz
it just seems to be a matter of our social history that “societies are governed
by institutions claiming and being acknowledged to have the right to bind their
subjects” [ibid., 118].
As to the question of justifying a claim to legitimate authority, Raz argues that
we are more likely than not to act according to right reason if we accept authoritative directives as binding rather than trying to reason things out for ourselves
[ibid., 129]. Anarchists such as Wolff were wrong in thinking that the only way to
preserve autonomy was to consent to every act of government; for Raz this is going
too far, since it rules out the possibility of legitimate authority [ibid., 11-12]. To do
so is to undercut our reliance on authority in the everyday world where we depend
on the advice of people such as doctors and financial planners. The fact that we do
delegate authority to others shows that it is beneficial to do so, since we can then
concentrate on doing what we do well. For Raz, the paradigm case of authority is
taking advice from friends or fiduciaries, and if we deny acceding to government
authority, then we shall have similar qualms about doing so in the case of other
more limited authority [ibid., 12].
By way of response to Raz, we reject the view that the authority exercised by
governments is just the authority we regularly delegate to others writ large. The
whole point about governmental authority is that we have not delegated it, we
have not consented. To the extent that others, such as a doctor, can order our
detention, they do so as agents of the state, which has almost unlimited power to
coerce and confine. This power was assumed by the medieval monarch in order
to protect his subjects, and as Hogue notes: “The doctrine of the king’s peace
gave the king a large field for the exercise of authority” [1966, 149]. Even if we
accept that rights pertaining to such a doctrine be reserved to the sovereign, the
reach of government has long since ceased to confine itself to breaches of the king’s
peace, such as murder, rape and robbery. As Higgs writes, not only is protection
much more likely to be provided privately rather than publicly, suggesting that the
sovereign has neglected his long standing duty,19 government functionaries go to
great expense to prosecute people for offences that are in no sense breaches of the
peace, such as using unapproved recreational or therapeutic drugs [2004, 104].
Another part of Raz’s response to anarchism is the claim that legitimacy enables
people to conform to right reason [ibid., 13]. Indeed, he thinks that anarchism
derives much of its popular appeal from a rejection of rule by others, whereas we
19
Benson estimates that US private sector expenditures in criminal justice are several times
greater than those of the public sector [1998,80].
50
are more likely to do what is really in our interests if we follow the directives of
legitimate authority. Hand in hand with this view is the sovereign’s claim to serve
the people, a notion perhaps captured in the royal motto ich dien and in the doctrine
of noblesse oblige. The denial of the view that the business of authorities is to serve
the governed has been typical of philosophical anarchism since Thrasymachus, who
famously held that the ruling class typically legislated in their own interest.20
Having noted, then, that Raz, for one, might not be inclined to support Edmundson’s decision to uncouple a duty of obedience from legitimacy, let us press on
with Edmundson’s case to see why he favours such a move. In so doing, of course,
he wants to be able, like Raz, to reject philosophical anarchism, which he thought
might prove irresistible, if it were true that a state’s legitimacy depended upon its
imposing a prima facie duty to obey the laws, and it were also true that there was
no such duty. According to Edmundson, a satisfactory theory of the state will include an authority thesis and a legitimacy thesis, and that the true view will avoid
the errors of philosophical anarchism by combining the appropriate version of each
thesis. To be an authority entails that one’s directives create enforceable duties of
obedience, while legitimacy is seen to impose somewhat more modest requirements,
namely that duties of obedience are reduced to duties of non-interference in the administration of justice [1998,43]The idea seems to be that while the anarchist might
quarrel with a fully fledged doctrine of political obligation he cannot really object
to a duty of non-interference. Indeed, at first sight this sounds like something that
might even appeal to a common garden variety libertarian anarchist since the only
duties owed to authorities are negative ones of non-interference. However, we need
to ask exactly what it amounts to not to interfere with the reach of the long arm
of the law, particularly when that arm reaches in our direction. Or as Edmundson
points out, it is one thing not to stop for the proverbial stop sign in the desert,
but quite another not to stop for the traffic cop who happens to be watching that
particular sign.
Edmundson considers it “an embarrassment to political philosophy that the possibility of a legitimate state is vulnerable to every worry about political obligation”
[1998, 50]. Then of course there are those of us who are more likely to find the possibility of a legitimate state an embarrassment to political philosophy. In any case,
in order to insulate the legitimate state from Edmundson’s worries, he argues that
we should instead attend to administrative prerogatives which are supposedly less
worrisome.Edmundson seems convinced there is a difference that matters between
a duty to obey the law and a duty not to interfere in its administration, but it is
far from clear why he thinks so, for even on his own account, there is considerable
overlap, since a duty of non-interference also generates obligations [ibid., 52]Edmundson claims that other considerations, such as those of utility, can be appealed
to in support of the latter, by which I take it that he is referring to the fact that
while we can ignore the stop sign in the desert with impunity, we cannot so easily
20
cf. Narveson [2000a,7];the ability of legislators to set their own remuneration and benefits,
often leading to increases well beyond the normal workplace norm is an up-to-date example of
rulers looking out for their own interests.
51
ignore the traffic cop who happens to be there to enforce it, because of the direct
consequences that are likely to follow. So in this sense it is better for all if I don’t
complicate matters by running from the police. It is less clear why I might find
myself duty bound to do so, unless he has in mind that the aim of such a directive
is to limit my options as to whether or not I choose to obey, that is, to provide me
with what Raz called exclusionary reasons to obey, where authority overrides our
right to act as we see fit [1979, 27]With reference to necessity, which Edmundson
also thought backstopped a duty of non-interference, one very clear way in which
it becomes necessary for us not only not to interfere, but even to assist with the
administration of justice is that such a duty is itself clearly expressed in law.21
Edmundson focuses his attention on resisting arrest, since that particular response to the reach of the law offers the most flagrant example of not complying
with its administrative directives,one that “is likely to betoken a much wider estrangement from civil society than simply breaking law L” [ibid.]. He further argues
that not resisting the administration of the law,as opposed to merely breaking a
law, is more “content independent.” While we have a weightier duty to avoid murder than not to jaywalk, which is to say the strength of the legal prohibition is
relative to the moral quality of the action proscribed, Edmundson holds that both
murderer and jaywalker are subject to the same duty not to resist arrest, a duty
which is in fact part of “received legal doctrine, whose practical wisdom we should
not lightly disparage” [ibid., 53].
However, Edmundson further claims that submitting without resistance isn’t
simply a counsel of practical wisdom, but is in fact a moral duty. This is evident,
he argues, from the fact that while I might run a light because I am in a hurry
to get my wife to the hospital, I have a clear duty not to ignore the police cruiser
which attempts to pull me over, as well as to explain to the officer why I was in
such a hurry. There might be other situations, such as my slipping away after
being detained by mistake, where Edmundson thinks that people’s moral intuitions
might differ as to whether I had a duty to explain myself first. As to his remark
that moral philosophy might not be of much help in sorting out such conflicting
intuitions, he himself claims to be arguing for a view which is true, [ibid., 47]. and
which suggests there is something by way of a moral argument to be given and a
correct answer to the question as to whether I have a duty to explain myself to
those charged with the administration of justice even when they make mistakes.
As for what we may or may not feel any compunction about is, as he points out, a
somewhat unreliable guide.
Edmundson also thinks that immunity from interference may extend to someone, who, for example, decides to direct traffic at an intersection after the traffic
lights have failed, though that person in turn will need to hand off the task to more
competent authorities.According to Edmundson, the latter, including those exercising de facto authority, have a de jure monopoly on administrative prerogatives,
21
e.g.,The Canadian Criminal Code prohibits not only obstruction of, but also failing to assist
a peace officer in the performance his duties. cf. Martin [1971, Sect. 118; Sect. 246]
52
underwritten by the presumptive legitimacy of the state.22 To further illustrate
the way in which he believes that the presumption of legitimacy supports a general
duty to respect administrative prerogatives, Edmundson returns to the question of
the legitimacy of the Nazi state. We are asked to imagine ourselves toward the end
of the war in Nazi Germany and to contrast the duties we would have to assist in
the apprehension of a fugitive from the American military police versus a fugitive
from the German police or from a German civilian. Edmundson trusts that if we
could somehow influence the outcome of the pursuit, we would agree that while we
have a prima facie duty not to mislead the MP, we have no similar duty not to
obstruct the German policeman or civilian. The reason is that the MP is acting on
the authority of a legitimate state, whereas the German policeman and civilian are
not [ibid., 55].
Edmundson contends that the nature of this supposed prima facie duty not
to interfere in the administrative prerogatives of a just state is especially evident
in cases of civil disobedience, e.g. the landmark case of Walker v. The City of
Birmingham, which involved an injunction prohibiting Martin Luther King and associates from holding a demonstration against segregation. After proceeding with
the rally in defiance of the injunction, King was found in contempt, a verdict later
upheld by the US Supreme Court, despite the fact that the ordinance under which
the injunction was granted was unconstitutional. Edmundson claims that his doctrine of administrative prerogative helps clarify the fact that although Dr King had
no moral duty to obey the ordinance, he did have at least a prima facie duty not to
resist the court’s administrative prerogative [1998,56]. On this matter Edmundson
finds Bentham’s remark singularly instructive, that under a government of Laws
the good citizen ought: “To obey punctually, to censure freely” [1994,10].
Edmundson contrasts his view that we have a general prima facie duty not to resist the administrative prerogatives of a just state with that of Hobbes who appears
largely to hold the opposite view, namely that I cannot be required not to resist the
imposition of force upon myself, or to incriminate myself [1909, 107, 167]. On the
other hand, we are not free to interfere in the sovereign’s attempt to bring another
to justice because the prevents the sovereign from exercising his right of protection
“and is therefore very destructive of the very essence of Government” In support of
his view that we have no duty not to resist the king’s men, Hobbes observes that
condemned men are led to the gallows by armed guards, even though they have
consented to the law, by which they are sentenced [ibid.,108]. However, Edmundson believes that rather than showing that there is no duty not to resist, Hobbes’s
condemned man example shows at most that it is understandable that we would
try to avoid long sentences or execution [1998, 61]. However, Edmundson considers
the condemned man example to be a case where not resisting is tantamount to
obeying, which is to say that the only way not to resist the order to put your head
on the block is in fact to obey it. Thus there will be cases where not interfering in
22
One is reminded here of the criminal law requirement that a citizen who arrests someone “on
reasonable and probable grounds” of having committed a criminal offence “shall forthwith deliver
the person to a peace officer”: cf. Martin [1971, Sect. 449, 359-360]; Edmundson [1998, 53, n.6]
53
administrative prerogatives amounts to obeying them, though Edmundson claims
that in the end fewer duties will be imposed than under a traditional account of
political obligation.
Thus it seems that at least sometimes the distinction between not resisting and
obeying, which Edmundson thinks so important for his case against anarchism,
is virtually non-existent. Indeed, he has thus far failed to convince us that this
distinction ever amounts to very much, and as a result it will be unable to perform
its expected function. For the proverbial man in the Clapham omnibus, obeying the
law simply amounts to obeying the endless dictates of this or that official. Rather
than worrying about some abstract duty to obey, the average citizen is more likely
to be concerned about what someone on the endless list of government officialdom
can do to him if he doesn’t comply with this or that order.
Of course, Edmundson thought that the disposition of Martin Luther King’s
civil disobedience case provided a good illustration of his distinction. While King
had no duty to obey an unconstitutional city ordinance, Edmundson thought King
had a duty to comply with the relevant administrative procedures, even if the
ordinance on which they rest is null and void [ibid., 56]But,if we are talking about
a moral duty first and foremost, it seems odd to claim that we are morally required
to do something which is a moral nullity.23 But Edmundson insists that while there
may be no legal or moral reason to comply with the unconstitutional ordinance,
there may be good reason not to resist its administration. If he thinks we have a
moral, as opposed to a legal or prudential one, it seems he has yet to tell us clearly
why he thinks so.
Indeed, one of the central problems with state enforcement is that much of the
time the state acts morally ultra vires, that is, it quite typically requires us to
perform duties which are either moral nullities or morally wrong. Simmons, for
example, cites laws which prohibit harmless behaviour, require military service, or
demand payment to finance all manner of government operations [1993, 264]. More
specific examples are not hard to come by: for example, Prairie wheat farmers
have been jailed for ignoring the Canadian Wheat Board Monopoly, and privately
selling their wheat south of the border where it could fetch a better price than in
Canada. As Epstein points out, such farmers could be forgiven for thinking that a
supposed right to farm, such as that touted by Roosevelt in 1944, implied at least
two correlative duties: (1) nobody can block one’s entry or exit from farming and
(2) one can sell produce to anyone willing to buy at whatever price can be agreed
upon [2005, 29]. However, some farmers have found a ready ear in government
for a more positive doctrine, namely a right to be insulated from the vagaries of
the market. In the case of the Wheat Board, what began in 1935 as a voluntary
marketing organization, has become a state backed monopoly with considerable
control over prices as well as insulation from commercial risks. Such state sponsored
cartels are also, as Epstein observes, immune from the scrutiny to which private
23
Aquinas held that unjust laws were more like acts of violence, and do not bind in conscience,
quoting Augustine’s view that: “A law that is not just seems to be no law at all” [1953, 72]
54
cartels are regularly subject [ibid., 32]. Nor are government prohibitions having
little or nothing to do with morality confined to big government, for as Spooner
argued, one need appeal to nothing more than the majority principle in order to
justify takings, with the majority typically being influenced by envy and ambition
[1992, 321]. Local government also offers fertile ground for the arbitrary will of a
majority, and is thus the source of many similar unwarranted curbs on individual
freedom. Bolick notes that cities frequently use powers of eminent domain not only
for public projects like roads, but also for seizing property which they consider
under-utilized, such as low income housing, but which could produce more tax
revenue if redeveloped.24
However, according to Edmundson, the fact that a particular law is void of
moral worth does not mean that we can ignore directives issued under its warrant.
In fact, as we noted, Edmundson held that just such a distinction helps explain
what otherwise might appear to be the incongruent findings in the case of Martin
Luther King, that while on the one hand he had no duty to obey the ordinance
requiring permission to hold a demonstration, he did have a duty not to disobey
an injunction upholding that ordinance. [1998, 56]. On the contrary, while we are
quite happy to leave the determination of legal sense to those who happen to make
a career out of such questions, we deny that King had any moral duty to obey
either the ordinance or the court order deriving from it. Edmundson claims that
King had a prima facie duty to obey the court order simply because it constituted
an administrative directive of a just state. One would have thought that an obvious
earmark of such a state was that it did not require obedience to laws, whose moral,
and for that matter, legal pedigrees were, in Edmundson’s words, nullities. It seems
that a state which requires such obedience has begun the descent into tyranny, which
is to say, its justness is far from a foregone conclusion. Perhaps we shouldn’t be
inclined to follow Bentham’s advice to obey punctually, not that Edmundson ever
makes it clear whether any such exhortation derives more from prudential, rather
than moral considerations. More germane, perhaps, is the celebrated dictum of
Junius, that the subject who is truly loyal to the chief magistrate will neither
advise nor consent to arbitrary measures, or, as Zakaria has written more recently,
liberty has primarily meant freedom from arbitrary authority, especially that of the
state [2003, 31-32].
Edmundson reaffirms his contention that one can somehow sidestep the anarchist’s concerns about political obligation by focusing instead on the supposedly
less demanding obligation of not interfering in the law’s administration, which, as
he puts it, “is drastically narrower and less objectionable than that of political obligation as traditionally conceived” [1998, 61]. On the contrary, I have attempted to
show that even if one could distinguish not interfering with administrative prerog24
What Bolick calls “Robin Hood in reverse”[2004,84-85]. One is reminded of the plan of the
City of Toronto to prosecute those attempting to supplement their incomes by collecting bottles
and cans from blue boxes in order to recoup cash deposits. The City considers the contents of
blue boxes to have escheated upon being placed at the curbside.With respect to eminent domain
seizures, Greenhut considers them legalized theft[2004, 190].
55
atives, as Edmundson is wont to call them, from obedience to the law in a wider
sense, it is not clear how this is going to allay the fears of those, whose enthusiasm for government is under fairly tight control. Indeed as Edmundson himself
acknowledged, those who speak of a broad consensus that there is no such duty are
not cranks but hold positions in prestigious centres of learning [ibid., 33]. However,
crank or academic, someone from the government, claiming no doubt that he is
here to help you, will tell you under C circumstances that you are required to do
A, failing which you will be subject to penalty P. Thus obeying the executioner by
putting one’s head on the block is the rule, rather than the exception, as Edmundson claimed. Obeying the sharp end of the law may constitute a narrower duty,
but it is no less objectionable than political obligation as traditionally conceived.
Nor for that matter did Edmundson’s distinction appear to be of any great use
in clarifying Martin Luther King’s treatment by the courts. Of all the administrative hurdles placed in King’s way by the supposedly just state, it isn’t clear why
disobeying the court injunction should rank as the paramount instance of such disobedience. The fact that a court thought so probably has more to do with the fact
that the bench and its jurists such as Edmundson are likely to be more sensitive to
cases of contempt than that it was morally the most egregious of King’s failures to
obey the magistrates.
3.3.1
Authority indistinguishable from arbitrary rule
Edmundson sums up his view of political authority by the formulation “Do it because I say it is good and it is better that you take my word for it” He further comments that although the political machine does not possess superior knowledge, the
populace is nevertheless better off heeding its ex cathedra pronouncements [ibid.,
63-65]. While for Edmundson political authority is not epistemic, we may recall
that Raz, for example, held that important forms of authority were in fact epistemic
and that the anarchist was guilty of overstatement to the extent that he denied this;
if we can grant authority to a professional there is nothing in principle wrong with
doing so to a government [1990,12]. However, as noted earlier, forming a contract
with some sort of professional to handle aspects of one’s affairs because of their
superior expertise or knowledge bears little resemblance to the coercive relations
most people have with government. The latter is more reminiscent of Faust’s pact
with Mephistopheles than anything else. What Raz should have said is that we
can have legitimate limited governmental authority, suggesting that we might fire
our government with the same ease that we do an accountant. The fact that we
cannot do so has forced voters to resort to other exit strategies such as escaping by
affluence, or to the underground economy.25
Of course, there are those who believe that we consent to be governed, and
that we receive a goodly measure of peace, order and good government in return.
Others, such as myself, tend to hold that mostly what we get in exchange for
25
cf.“The escapes from over-government” in Seldon [2002,Ch.3]
56
our birthright is a mess of potage, and that central government can in no way
approximate the precise knowledge held by individuals or small groups. Barnett
notes that centralized decision making could work provided that it had access to
that widely decentralized personal and local knowledge; in fact, knowledge is widely
dispersed, implying similar decision-making [1998,61]Leoni makes a similar point
about legislation, namely that its centralized production makes it impossible to
reflect local conditions and the wishes of a dispersed citizenry,[1991, 22]which would
seem to support Edmundson’s view that legislative compromises do not constitute a
superior form of cognition. While for him political authority is mostly not epistemic
in nature, it can provide good reasons for obedience, though he admits they are
often less than clear, such as the fact that many interests have been weighed in
reaching a particular legislative compromise, suggesting that we would do better to
accede to that result than not [ibid., 1966].
Apparently we have to take their word for it that whoever did the weighing
and balancing got it right, and it is best if we just obey. This sounds more like an
instance of no reasons at all than one of their being not perspicuous,thus lending
weight to Leoni’s claim that the dominant mythology of our age is political rather
than religious, whose “chief myths seem to be “representation” of the people, on
the one hand, and the charismatic pretension of political leaders to be in possession
of the truth and to act accordingly, on the other” [ibid.,23]. Of course, in other
respects such mythology is not entirely confined to the present era, since Plato also
hoped to have political leaders in possession of the truth, which would be ensured
by having only those fit by birth and philosophic training assume command of the
republic [1941, XXII, 208].26
Moreover, he argued that those who failed to acknowledge that expertise was
required to take charge of the ship of state were like sailors fighting over who should
be at the helm, while failing to understand that navigation requires special expertise
[ibid.,XXI,195-196]. Similarly, as Raz pointed out, a legislator may issue directives
though many may not approve. He may for example have reason to impose a certain
tax, and he may or may not leave some discretion as to how it is paid [1990,127].
Hobbes thought that while bees and ants could live peacefully together without
any governmental structure, mankind could not do likewise but required the great
Leviathan who would protect them from one another, as well as from foreign invasion [1909, Ch.17]. The latter justification is particularly ironical, since, as Porter
reminds us, “the state is a creature of war and the source of all the truly large scale
violence in the past half-millennium” [1994, 299]. Thus Horace’s famous line Dulce
et decorum est pro patria mori is characterized by the Great War poet, Wilfred
Owen, as “the old lie” no longer fit for the edification of children. No doubt acknowledging that dying for one’s country can be a tough sell, particularly during
an election, Roosevelt promised in 1940 that the sons of America would not be sent
26
With respect to such a doctrine Carter comments that: “The authority of the philosopher
arises from an esoteric knowledge that must be accepted on trust by the common man. The
authority of the true philosopher is then transferred to the political realm, where philosophers
become kings, or the advisers of kings” [1979, 35]
57
to fight in foreign conflicts, but as Higgs pointed out, for close to half a million who
never returned, this proved as much of a lie as the old one [2005,135].27
Other writers since Hobbes have elaborated on the doctrine of sovereignty, particularly with respect to those it supposedly protected. For example, Heinrich von
Treitschke remarks that there is a gulf fixed between rulers and ruled with the
State alone being sovereign, which in turn implies a right of arms and to resources
sufficient to pursue its self-determined interests [1963, 77,18-19]. A generation or so
later, Harold Laski observed that the authority of the state depended on its power
to coerce its opponents and force them into submission, using the armed forces
if necessary [1935, 14]. More recently, anthropologist Harold Barclay, has written
that a democracy does nothing to alter the time-honoured hierarchy between rulers,
consisting of a small elite, and ruled [2003, 23-24]. Boetie reminds us, however, that
it is not the legions at the command of the sovereign who keep him in command,
but rather a small number at the top of the hierarchy who maintain control through
iterated pyramids, the main outlines of which seem common to various command
structures [nd., 22].28 Molinari on the other hand sees the notion of governors as a
modern manifestation of the doctrine of divine right, a fiction which one would do
well to dispel, whereupon their aura of authority will disappear and the governors
will be seen to govern no better than the governed [1977, 10-11].
3.3.2
Moral discovery as a possible source of authority
Unlike Molinari, Edmundson, as we saw, has not lost faith in the authority of
government, holding that government can provide us with better solutions to coordination problems than if we were left to our own inclinations. One of the ways
in which it might do that is that the law is supposedly capable of what Hurd calls
moral discovery, where from coordinating action on relatively straightforward moral
questions it might provide solutions to questions with several right answers, and do
so in a way that is morally authoritative [1999, 174-175]. As a possible example,
Edmundson mentions a statutory rape law, which widens the definition of rape to
include cases of “innocently mistaken conduct” [1998, 65]. Of course, to the extent that such a statute proposed to enlarge upon moral prohibitions against force
and fraud, it may well risk harming the innocent, and thus represent a significant
departure from customary moral norms. Although this does not seem to be what
Hurd, for example, had in mind, she believes that law makers are uniquely placed
to develop solutions which are thought to possess considerable epistemic authority
[ibid., 176].
27
Faust has recently reminded us that foreign conflicts may pale by comparison with domestic
ones when we recall that in the case of the US: ” The number of soldiers who died between 1861
and 1865, an estimated 620,000, is approximately equal to the total American fatalities in the
Revolution, the War of 1812, the Mexican War, the Spanish-American War, World War I, World
War II, and the Korean War combined [2008, xi]”
28
cf. Grazia [1952, 116].
58
Of course there is still a question as to whether the ability of legislators to
develop yet more laws, or find ways to tweak old ones in order to please certain
constituencies really amounts to some sort of moral discovery. The minorities who
simply go along with a statute are as unlikely to feel that it represents a genuine
moral discovery as they are to believe that the solution reached by legislators possesses any authority akin to that possessed by other professionals with whom they
might have a fiduciary relationship.29 Moreover, the fact that law is able to make
some solutions both salient and widely accepted as authoritative, tells us little
about what law really ought to be doing and why it should have the authority it is
often thought to have.
While Edmundson does not think that the law on the whole offers fresh evidence
of antecedent moral obligations, he allows that it does provide for moral improvisation by making salient a solution to a coordination problem such as which side of
the highway to drive on, thus generating a rule which supposedly has moral force
because “it offers important benefits not securable otherwise” [ibid.]. While he
appears to think that traffic laws are an obvious example of the law’s facilitating
a wide range of exchanges, we saw earlier that he had some trouble convincing
himself that he really should stop at the traffic sign in the desert, where there was
no opposing traffic, or that it was wrong of him to disobey a “don’t walk” crossing
light, and that another pedestrian was entitled to reproach him for doing so. He
rightly concludes that not a lot hangs on relatively trivial cases of disobedience and
that they don’t offer great prospects as a foundation of some general duty to obey
[1998, 28,31]On the other hand Edmundson contends that the law which solves
such an important problem as which side of the street to drive on clearly has moral
import. Hardin also thinks it a compelling example of real world coordinations,
but reminds us that law only later reinforced coordinations which road users had
already worked out among themselves. Indeed what is noticeable about such a
solution is that it worked for a long time without authoritative enforcement.
This sounds like a different and more plausible tale than that told by Edmundson. According to Hardin, early road users did not need officials to tell them that
everyone could benefit by keeping to one side while going in a particular direction
[2003, 13-14]. While law did as it had always done, it did not invent the coordination, but gave expression to established custom. Nor did the law bring moral
obligation in its wake, but rather those who wished to minimize harm to themselves
and others doubtless saw the wisdom of this sort of coordination. There will no
doubt always be risk takers, just like those who run remote stop signs or disobey
pedestrian signals. Methods of enforcement range from the informal scowl of Edmundson’s critical onlooker to hefty penalties which may accompany formal law
and adjudication following the original coordinations.30
29
cf. Leoni reminds us that minorities are unlikely to mistake democracy or “the hegemonic
power of numbers” for freedom from coercion [1991, 101].
30
Not that formal law invariably follows such coordinations, even when as De Soto argues, it
might assist the development of eg., real estate capital markets in third world countries [2000,
156-157].
59
So Edmundson’s claim that it is the job of law to solve a coordination problem, if
not wrong, is an unfortunate oversimplification. He further argues that this solution
just has to be one that people accept, not necessarily the best one, morally or
otherwise [1998, 65]. One might wonder why people should adopt a solution which is
not necessarily in line with their preferences, nor is it morally the best. Perhaps that
isn’t something they should even worry about, since we saw that in Edmundson’s
view solutions were best worked out by the state, and it is best that loyal subjects
take the state’s word for it. Those of us not inclined to blind obedience can offer
a more plausible criterion of optimality, namely that suggested by Pareto, which
will allow us to make up our own minds about a proposed government intervention.
According to Pareto a social state of affairs is optimal if no further improvements
can be made to A’s lot without worsening B’s. Further, a social state of affairs, Y,
is an improvement over,or Pareto superior, to Z, if at least one person is better off
in Y than in Z.31
Edmundson, on the other hand, thinks that the most we can ask of legislative compromise is that various goals and interests are weighed in the balance and
that whatever decision is arrived at politically is better than no decision all [ibid.,
66]Governments have little interest in applying the Pareto yardstick, which sets
clear limits to what they can do.Indeed, responding as they do to all manner of
pressure groups and lobbies just about guarantees that modern governments will
not be shining examples of Pareto in action. They are only too happy to improve
A’s lot at the expense of B and countless others besides. As Tullock points out,
concentrating benefits and diffusing the costs ensures that while it will be in A’s
interest to pursue the benefits, it will not be worthwhile for B and his fellow taxpayers who bear the small individual cost to oppose the levy. Tullock cites the
interesting case of a small firm of manufacturers of violin chin rests for whom it
was worthwhile to lobby for a protective tariff, whereas for the small amount it
added to the cost of a violin, it would not have been worthwhile for a purchaser to
travel to Capitol Hill to oppose it “2002, 38].
However, as Seldon notes, one way to end the granting of favours is to remove
that power from the armamentarium of government, something “democratic government has chronically avoided or rejected” [2002, 46]. He argues that what we
need is a public philosophy which would hold that it is immoral to seek favours at
the expense of others and of our own real interests,[1990, 121]. since all producers
are ultimately consumers. Indeed, I would submit that the Pareto criterion is a
move in the right direction, since, as Narveson contends, it suggests some rough
and ready way of deciding whether a change is better for some, and no worse for
anyone [1988, 184].
31
cf. Narveson,[2002a, 79]; improvement by incremental adjustments, as suggested by Popper
[1961,65-66], perhaps sounds a little dull by comparison with many of the grand schemes touted
by politicians.
60
3.3.3
Law and ethics do not necessarily overlap
A common assumption among those interested in the interface between law and
ethics, such as Edmundson, is that both of these inquiries generally head in the
same direction.32 Indeed, as far as Edmundson is concerned, the degree of overlap
between the two is such that law can reinforce any moral requirement and thus
overcome the hazards allegedly inherent in private enforcement. Not only can it do
so, but it rightly possesses a monopoly of doing so [1998, 157]. However, as we have
pointed out in various places, there seems to be an abundance of cases where the
government has no business presuming to monopolize compulsion, which is to say
it all too often exceeds its moral warrant. In fact, as Epstein has noted, frequently
the law not only fails to improve upon customary orderings, but may have the
opposite effect, such as when the state intrudes in the workplace and undermines
such orderings [1998,60].
An example of such unwarranted government intrusion is the at-will labour
contract where one party is free to quit just as the other party is free to fire, with
no questions being asked on either side. If arbitrary behaviour is permitted on
both sides, there seems little reason to intervene in order to head off the capricious behaviour supposedly confined to management with its attendant regulation
of wages and hiring. According to Epstein the attack on at-will contract fails since
it is not plausible to think that the average employee contracts to become worse
off than he was before [2005, 44-45]. Further, Hasnas has recently shown how in
the ramping up of white-collar offences post-Enron, legal requirements can only
be met at the expense of what business ethicists had traditionally held to be the
important moral principles governing business practice. Recent US legislation has
significantly broadened the definition of white collar crime, while weakening many
of the traditional safeguards at criminal law such as the mens rea requirement, the
ban on vicarious criminal liability, the presumption of innocence, and proof beyond
reasonable doubt. In addition, new sentencing guidelines place a heavy premium
on corporations going out of their way to comply, both before and after any investigation, in order to reduce draconian fines. Although ethicists have traditionally
taught that corporations are bound by the same moral rules as the rest of us33 ,
Hasnas points out that corporations simply cannot afford, for example, to respect
promises of confidentiality, despite loss of employee trust, because of the huge liability that might result. He concludes that failure to recognize the significance
of such perverse legal incentives has rendered much contemporary business ethics
beside the point [2006a, 10,15-16,19-20].
On the one hand then, Edmundson seems to think that the law generally tracks
morality, though in providing solutions to certain coordination problems it may
32
Edmundson also assumes that coordinations backed by law typically bring moral innovation
in their wake, though as Hardin reminds us some coordinations are less than felicitous, such
as those with respect to US slavery and later Jim Crow laws [2003,14]; similarly with respect
to the Balkans, where coordination for group advantage broke down informal relations between
ethnicities [1995b, 29].
33
cf. Narveson [1998, 73].
61
give rise to further obligations having a moral as well as a legal force. On the other
hand, he also contends that such a solution may be much less than the morally
best and that we should console ourselves with the thought that the use of political
authority leads us to believe that some decision is better than no decision. However,
why the exercise of political authority gives us any such reason is far from clear,
and if Edmundson’s argument so far was intended to establish that, he has failed
to do so.34
3.3.4
The morality of taxes in particular
While, as we have seen, Edmundson believes that the law incorporates morality
into it and may often secure further benefits conveyed by rules, he also holds that a
given coordination may fail to be optimal, either with respect to individual preferences or morality, or both. For example he claims that: “It is very hard to believe,
with Hurd, that the governmental scheme of levies and expenditures – whether as a
whole or in any part - is any clue to what we would independently and antecedently
have a duty to do with our money” “1998, 65]. Well if it is so very hard to believe, one might well ask why we should believe it, unless we happen to subscribe
to Tertullian’s dictum Credo quia absurdum est. If that seems to be leading the
witness, Edmundson does actually say that “a legitimate political authority gives
citizens good reasons to believe that they ought to obey its laws, just as legitimate
scientific authorities give the laity good reasons to believe what they say about the
workings of the world” [ibid.,66]. Much of the point of our discussion is whether
there are any legitimate political authorities, at least ,morally speaking, and, contrary to Edmundson, the answer appears to be that there are not. As for any
supposed similarity between those and scientific authorities, besides the question
as to whether “legitimate” is being used the same way for both, I am not really
sure what a legitimate scientific authority amounts to, but it seems that government authorities would have much to learn from the humility of the physicist who
said about quantum theory that it was the best theory they had at the moment
and they hoped that it was approximately true. Of course, while not a lot by way
of public policy generally hangs directly on the truth of quantum theory, in the
case of climate theory, the hypothesis that there is measurable global warming has
been pressed into the service of yet another political crusade. Politicians and their
scientific lobbyists, who are convinced that such increase in global mean temperature over the past century or so as it has proved possible to record is moreover
anthropogenic, 35 can be expected to ignore Jasay’s warning and employ the full
coercive apparatus of the state to correct heresy.
With respect to our duty to render unto Caesar, however, Edmundson was of
34
Indeed, Jasay has argued just the opposite,namely that when it comes to political authority
using coercion to impose value choices on society it should be guided by the principle “when in
doubt, abstain [1997, 151].
35
Essex and McKittrick refer to this hypothesis as the Doctrine of Certainty, which in their
view is “manifestly false” [2002, 17-18]
62
the opinion that this may well be at variance with what we would probably think
was our duty to do with our money. There also appears to be little doubt in
Edmundson’s mind that the government is quite correct in asking us to hand over
tribute, which left to our own devices we may not have been inclined to do, at
least partly because we thought we had no moral duty to do so. Edmundson on
the contrary clearly thinks we have a duty to do so, paying taxes being one of
the duties the state may impose on us [1998, 157]. Taxes are doubtless one of the
least welcome of such impositions and as Bovard remarks, they serve as a continual
reminder of state paternalism [1999,21-22]. which Edmundson thought definitive
of political authority. Rothbard further noted that the government was peculiar
among human institutions in acquiring its revenues through “coercive violence,” a
fact which the “mystical trappings of sovereignty” have for the most part managed
to conceal [1978, 25-26].36
Apparently the libertarian indictment of taxes 37 is now thought to be so influential that those who favour what they style as an egalitarian redistribution of
wealth have been moved to challenge the view that all taxation is legalized theft:
thus Murphy and Nagel claim deny that anyone seriously believes that all taxation is illegitimate because it takes property without consent. According to these
writers, many people make noises that sound like this because of the wide appeal
of “everyday libertarianism,” which misleads people into thinking that they have
a moral property right in pretax income, when what they actually have is a legal
right to their net or after tax income. Murphy and Nagel claim that the belief that
we are morally entitled to our pretax incomes results from some sort of conflation
of what we are legally entitled to, namely our post tax incomes, with what we may
think we have a deeper moral claim to, namely our pretax incomes [2002, 33-34].
In response to Murphy and Nagel’s claim that no one really believes that taxation is illegitimate, I very much doubt that most people have trouble distinguishing
legal from moral claims, especially anyone who has had a friendly encounter with
the tax authorities. Presumably Murphy and Nagel are also aware that a claim
about the morality of taxation may well be true, regardless of the number of those
who do or do not believe it. As for the rhetoric about everyday libertarianism,
if the notion of strong property rights has proved harder to banish from everyday
thinking than Murphy or Nagel would like, this may be evidence that such a view
is also more widely held than they would have preferred. Nor is it obvious why
everyday libertarianism need be any more confused than the everyday equivalent
of one of Murphy and Nagel’s claims, e.g., “that an ideally fair system would give
everyone the same chance in life,” [ibid., 55]. which already bears most of the
hallmarks of your average confused platitude. In fact when Murphy and Nagel do
36
As for Canadian taxation, in 2006, according to Veldhuis and Palacios [2006], it took Canadians till June 18 to pay off their tax bill, close to 2 months later than when calculations were first
made in 1961. The OECD [2006]. found that Canada consumed a higher proportion of GDP, and
had higher corporate rates than the US or Australia, with the CTF [2007]finding that only China
had higher corporate rates.
37
Rothbard called them “legalized and organized theft on a grand scale” [ibid]
63
consider libertarian views proper, rather than their popular coinage, what we have
are fundamentally opposing views, rather than one clear and right view versus one
confused and wrong view. Although it is not a view they share, Murphy and Nagel
concede that libertarianism is one to be reckoned with, citing its defence of property
and contract, opposition to redistribution, and individual sovereignty as severely
constraining the right of government to interfere in our lives [ibid., 65-66].38
However, Murphy and Nagel argue that libertarianism, at least in its popular
manifestations, confronts a conceptual problem when it claims that taxes constitute
a taking which requires justification. On their view our income is by definition only
post-tax income, which is to say, there is no income prior to taxation. On the other
hand, if there were no pre-tax income, there is nothing on which to base taxes, and
no post tax-income either, suggesting that even popular libertarianism has little
to worry about. Indeed, as Brennan puts it: “Nothing in basic logic rules out the
gross-of-tax formulation. If this is what Murphy and Nagel think, then they are
guilty of an error– that of mistaking an arithmetic convenience for a conceptual
claim [2005, 212]”
To Nozick’s celebrated dictum that “Taxation of earnings is on a par with
forced labor” [1974,169], latter day liberals, such as Ignatieff, have responded that
“Taxation may be unpopular but hardly counts as an evil” [2004, 17]. To be sure,
Murphy and Nagel also hold that there can be no principled objection to enforcing
payment of taxes [ibid., 123]. As they argue, laws of any sort, such as criminal,
traffic or zoning laws and the myriad other forms of regulation, all constrain what
we can do. But on the libertarian view, a much narrower band of activities are
subject to enforcement, namely those that cause wrongful harms to others. Indeed
Rothbard proposes replacing the vague concept of harm with the more precise one
of invasive violence against the person or property of another [1997,127,128]. If
any taxes at all are legitimate this would only be, as Jasay reminds us, if it is
necessary to prevent the state’s subjects from harming one another, though even
here there will be some unpleasant facts of life, such as the fact that you cannot
have what I already own, which do not constitute compensable harms [1991,24, 27].
In support of his claim that taxation amounts to forced labour, Nozick argues that
the redistribution which is the rationale for much taxation results in arbitrarily
subsidizing certain individual preferences at the expense of others. Some choose to
work longer hours for more pay, while others prefer less pay and more leisure. If it
would be wrong to take leisure from the man with more of it because that would
amount to forced labour, it is not clear why we can take money from the man who
happens to have more of that good [ibid, 170].
Despite having claimed that no one really believes that taxation amounts to
state sanctioned larceny, Murphy and Nagel admit to having a hard time convincing
people that if they own anything it is only through the good graces of the state
and should not resent having a goodly portion of their pre-tax income escheat to
38
In view of Murphy and Nagel’s claim that libertarianism “has considerable appeal and exercises a real influence in political debate” one should not be surprised at its influence on everyday
thinking, something Macey [1998, 373]. found sadly lacking a decade so ago.
64
the state [ibid., 176-177].39 Graetz and Shapiro admit to similar difficulties in
understanding how the estate tax first introduced in 1916 could have been repealed
in 2001 with broad bipartisan support. They surmise that robber baron envy could
no longer be counted on to carry the day as it was in the early days of last century.
Perhaps voters had come to realize that the real robber barons are, as DiLorenzo
points out, the “political entrepreneurs and their government patrons” [2004,133].
In any case, as Citizen Gates claimed, if you work hard to set up a lucrative
business,paying taxes along the way, it is not obvious why your death generates
further tax obligations. Indeed, if Bill Gates is not seen as another Rockefeller,
despite attempts of various governments to have Microsoft suffer the same fate
as Standard Oil, maybe, as Graetz and Shapiro suggest, it is because Americans,
contrary to Marx’s predictions, rather than overthrow capitalism, have become
paid-up members as property holders and investors [2005, 8].
Thus the belief in private property may not be as much of a myth as Murphy
and Nagel would like to think. While they seek to remind us that property is a
mere convention, for Hume, convention is absolutely central to stability in possession which can only be achieved “by a convention enter’d into by all the members of
the society to bestow stability on the possession of those external goods, and leave
everyone in the peaceable enjoyment of what he may acquire by his fortune and industry [1960, 489]” Such “mere” conventions, or spontaneous ways of coordinating
divergent interests, are “fundamental laws concerning the stability of possession,
its translation by consent, and the performance of promises,” and, most notably,
“are therefore antecedent to government[ibid., 541]” Robb writes, for example, that
long after the advent of central government in France, many communities remained
beyond its reach, with the result that: ” Self-government was not an idle dream.
It was the unavoidable reality of everyday life. People who rarely saw a policemen
or a judge had good reasons to devise their own systems of justice. Hard-pressed
provincial governors had equally good reasons to turn a blind eye [2007, 34]” The
hamlet of Goust in the Pyrenees was just such a community, remaining an autonomous republic till the twentieth century, where ” there were no beggars, no
servants, and to the envious delight of the travellers who discovered this spartan
Shangri-la, no tax-payers [ibid.,19]” The residents of this rocky platform high above
the spa of Eaux-Chaudes appear to have led lives of reasonable quality and order
without the ministrations of the Republic, no doubt as the result of conventions,
such as a council of elders, about which Murphy and Nagel would have little to say,
other than perhaps noting their mere conventionality.
Moreover, with respect to the egalitarian theories of justice to which these authors seem partial, Stone remarked some years ago that the presumption of equality is beset by many hazards, not the least of which seems to be the conflation of
equality with justice, which only diverts us from the task of deciding which facts
39
As an expatriate Australian, Murphy in particular might be distressed to learn that in recent
years the Australian government has levied no tax on retirement income. There are doubtless
pensioners in that country who believe, contrary to Murphy and Nagel, that in leaving their gross
incomes intact, the government has finally acted justly.
65
of entitlement are relevant to justice [1978, 1019]. As Narveson has more recently
pointed out, once we have settled on the appropriate characteristic according to
which people are to be treated, “then a given person will get whatever degree of
treatment possession of that characteristic is supposed to call for [2002a,61]”, which
might not be the same as someone else. But, as Lucas reminded us, while we may
secure some measure of equality in some respects between some individuals, we shall
never achieve “Equality in all respects between all men for all purposes and under
all conditions” [1971, 150]. Again it is most encouraging to think that supporters of
redistribution such as Murphy and Nagel face an uphill battle in getting a hearing
in the market place for their theory of justice. Benjamin Franklin is recorded as
having famously pronounced in a letter to Jean Baptiste Le Roy in 1789 that in
this world nothing can be said to be certain except death and taxes. While death
has remained an abiding feature of the human condition, to speak of the certainty
of taxes and leave it at that is to beg the sorts of questions that we have been
raising about them and the governments which institute them. First, given that
governments in the 18th century mainly confined themselves to duties and excise
taxes on imports and exports 40 , Franklin probably did not have to spend most of
the first six months in any given year rendering unto Caesar. Second, it suggests
that like the poor taxes have been with us always, which of course is not the case.
Richard Pipes notes that “as a rule, in the Western world since classical antiquity
and until the twentieth century, regular (as distinct from emergency) direct taxation
was regarded as unlawful except for subject peoples; when imposed domestically it
carried the stigma of social inferiority” [1999, 238].
Further, according to Pipes, the US continued to meet its financial needs for the
first half of the 19th century by customs duties and sales of land. However, as Van
Creveld has written, the Civil War occasioned the imposition of the first income
tax in US history [1999,232]. The move to progressive taxation, which takes an
increasing proportion of income as income rises, appears to have been staved off for
much of the 19th century by those who protested that the only just principle was
to extract the same proportion of income from everyone.41 The first to overcome
such reservations about progressive income taxes was apparently Prussia under
Bismarck’s successor Caprivi, which in 1891 ordered the Kaiser’s subjects to render
taxes from less than one to about 4%. 42
Canada’s story on taxes is in fact worth noting, particularly because of the
determination of its leaders of the late 19th century to keep taxes low in order
to encourage immigration and investment. The first post-Confederation Liberal
Finance Minister, Sir Richard Cartright, expressed views on taxation in his 1878
budget speech unlikely to be heard from any finance minister in more recent years:
“All taxation is a loss per se. It is the sacred duty of the government to take only
from the people what is necessary to the proper discharge of the public service; and
40
cf. Milke [2002,4]
cf. Hayek [1978, 308]
42
Hayek notes that the modesty of such proposals would have rendered any attempt to oppose
them unlikely to succeed [ibid., 310].
41
66
that taxation in any other mode, is simply in one shape or another, legalized robbery” 43 Rothbard has in more recent years explained how taxes are a loss, namely
that they diminish the production base and act as a disincentive, causing people
to spend more time on leisure or take tax-supported employment [2001, 797].44
As for the myth that taxes are voluntary, and not robbery, Lysander Spooner, a
contemporary of Richard Cartright, reminds us that if, unlike a highwayman, government does not literally hold a gun to our heads, at least the highwayman, unlike
government, does not pretend that his robbery is anything else [1992, 84-85]:
Some present day politicians might still claim that deep down they agree with
such views, but believe that what has changed since the days of Cartright and
Spooner is the scope of the public service. Spooner would still reply that determining that scope is a rather one-sided business, and when the government comes
to collect its bill to meet the expenses of protecting life and property, it will not
do to say that you never asked them to do that in the first place [ibid., 85-86].
Moreover, lest we think that the promotion of life, liberty and the pursuit of happiness was more appropriate to the US than Canada, Sir Wilfred Laurier’s words
on the campaign trail in 1894 suggest that there was at least a period when there
was something distinctly liberal about the Liberal Party: “The good Saxon word,
freedom; freedom in every sense of the term, freedom of speech, freedom of action,
freedom in religious life and civil life and last but not least, freedom in commercial life” 45 However, the rejection of direct federal taxation which characterized
the first 50 years following Confederation was finally overcome in 1917, and as in
various other taxes Canada seems to have been inspired by American precedent.
Further,to Franklin’s dictum that there is nothing as certain as death and taxes,
Hospers replied that “this is no reason why we should be taxed to death” [1971,
322]. When income taxes have risen in the course of the last century from around
5% to anywhere from 20% to 70%,46 Hospers argues that the government seizure
of our means, although gradual, appears to have no limits, and simply constitutes
a transfer of wealth and power to the bureaucracy who are convinced they know
better than we, the people, how to put our money to the best use [ibid., 322-323].
3.4
The Public Goods’ defence
Again, with respect to the goods which government has come to believe it must
supply from its only source of income, namely taxes, Seldon has argued that we
need to separate those goods that are truly public from those that are not. Public
goods “proper” are “non-excludable,” meaning that those who don’t want them
43
Quoted by Milke [2002,9]
Arthur [2007, 79]. has estimated that about two thirds of the tax deduction is directly lost
to the economy before the tax contributes to any spending, from which a further 20% is lost to
government overheads and waste.
45
Quoted in Milke [2002, 10]
46
Veldhuis & Palacios “2006, 8]. report that Canadian tax rates for 2006 are around 45%
44
67
can’t be excluded from receiving them, and “non-rival,” meaning that those who
use them without paying do not reduce the supply available to those who do pay.
By this criterion, Seldon concluded that most so called public services are not
public goods proper, and thus, contrary to widespread belief and practice, do not
in fact have to be supplied by government [1990, 169, 174]. Jasay offers further
comment on the nature of public goods and why it has been traditionally thought
that the government must provide them and that they must be compulsory. On
his account such goods are characterized by similar properties to those of Seldon:
“non-rivalry” or “jointness” [greater use of the good by one user does not reduce the
benefits available to others]. and non-excludability [a member of the public cannot
be denied access to the good]. Goods having both properties are “pure” public
goods. However, according to Jasay the traditional theory also recognized that the
class of such pure public goods was small or non-existent. He cites the interesting
example of a private good such as club membership which permits a member to
make greater use of the facilities than other members at no additional cost, with
any increase in costs being spread over the whole membership [2002, 19,20].
Even though the traditional theory allowed on the one hand that there were few
if any genuine public goods, some goods having the above-mentioned properties will
fail to be produced. In order to ensure that they are, coercion is necessary, though
as Jasay rightly observes, if a good failed to be produced because it was irrational
for anyone to contribute,”it is no less irrational to contribute a little than a lot”
[ibid., 20]. On the other hand, Hayek seems to have accepted the traditional wisdom
that the government ought to supply such goods as health, sanitation and roads
because it would be difficult to charge for them “1978, 225]. Here Hayek apparently
takes himself to be following Adam Smith who wrote that it would be necessary
for the commonwealth to supply those public works which are “of such a nature
that the profit could never repay the expense to any individual or small number of
individuals, and which it therefore cannot be expected that any individual or small
number of individuals should erect or maintain” [1976,Vol.2, 723].
However, while Smith thought there might be some case for public works, he
was less convinced that any deficiencies in the private management of turnpikes,
for example, would necessarily be remedied by state management. Because toll
revenues tended to outstrip expenses there would be a strong temptation to use
them as a cash cow, as Smith found in the case of the post office [ibid., 727]. Smith
thought that one solution for “those publick works which are of such a nature that
they cannot afford any revenue for maintaining themselves,” if they were situated
in a specific locale, is for them to be placed under local or provincial, rather than
state administration. He cites the example of street lighting in London which would
not be nearly so efficiently run if it were up to Whitehall; since the inhabitants of
London are the prime beneficiaries, it makes sense to pay for them out of local taxes.
Not that Tammany Hall is immune to corruption, but Smith thinks differences of
scale are likely to minimize such problems [ibid., 731].
But, it seems, more recent writers are not as likely to share Smith’s view that
local government constitutes less of a threat. Bolick thinks that if the country
68
declares war we will know whom to blame, whereas finding out who is responsible
at the local level may be more difficult, whence the old adage: “You can’t fight
city hall” [2004, xiii]. A much criticized instrument of local government power is
eminent domain seizure, which many see as a glaring affront to property rights
and nothing more than government sanctioned theft. Greenhut reminds us that
many corporations have only been too happy to benefit from such seizures, offering
increased revenues to the city fathers in return [2004, 191].47 Perhaps it should be
noted that occasionally eminent domain has also worked against corporations, such
as when it was invoked to prevent Walmart setting up in Hercules, California, on the
grounds that the corporation was not a good fit for city “smart growth” policies.
Of course this raises the question as to whether planning should be subject to
enforcement since writers such as Jacobs were skeptical that most city governments
lacked the resources for understanding the enormous complexities of urban life
[1992, 417].
Not that governments necessarily confine themselves to planning public works
but are all too often directly involved in putting them into effect, and thus may be
directly responsible when such projects go awry. For example, a recent report of
the US Army Corps of Engineers has admitted that much of the havoc caused by
Hurricane Katrina could be attributed to poor engineering.48 On the other hand,
if past government behaviour is any guide, what we will probably never hear is
that someone has been personally held to account for policy and implementation
failures stretching back over 40 years, as in the case of the New Orleans levees, not
that government would display a similar reluctance to investigate if it involved a
non-government agency. Thus Seldon has noted: “government is itself the source of
the most far-reaching externalities and the most incorrigible, because the politician
or bureaucrat at fault is more difficult to discover and less likely to be penalized
(or rewarded) than its citizens” [1990, 176].
Even when government does reluctantly investigate, as in the case of 9/11, the
National Commission report simply records the fact that there were widespread
policy and management failures: “The US Government did not find a way of pooling intelligence and using it to guide the planning and assignment of responsibilities
for joint operations involving entities as disparate as the CIA, the FBI, the State
Department, the military and the agencies involved in homeland security” [2004,
xci, xciv]. The 9/11 Report acknowledges that many of these agencies were formed
in response to another famous surprise attack on the US, Pearl Harbor, with the
presidential biographer claiming that both events were evidence of similar problems: “The problems that led up to Pearl Harbor, and this, are in a certain sense
intractable human problems: bureaucracies, people being unwilling to share” [ibid.,
xlix].
The authors of the 9/11 Report thought it important to enter the caveat that
47
For further ramifications of eminent domain see Fitzgerald [2003, 29], Jacobs [1992, 311],
Sandefur [2006,96].
48
Cf.“Army Corps admits design flaws in New Orleans levees,” Ralph Vartabedian, LA Times,
June 2, 06.
69
they were writing “with the benefit and handicap of hindsight,” just as one commentator on Pearl Harbor found it “much easier after the event to sort the relevant
from the irrelevant signals” [ibid.,485]. In the case of the latter event, there is
now evidence to suggest that Roosevelt was aware of an impending attack on Pearl
Harbor. He ordered a build up of Red Cross resources to handle the expected casualties, explaining that American isolationism could only be brought to an end
by the direct attack his intelligence had warned of. John Denson, a US judge and
historian, thinks that the quote from Roosevelt on his monument in Washington:
“I hate war” serves only to remind us of that president’s hypocrisy and deceit [2006,
196]. But as Machiavelli pointed out, in order to preserve the state, the prince ”
often has to do things against his word, against charity, against humanity, against
religion” The prince must focus on the end result, and if that is favourable, the
masses will overlook the methods taken to achieve it [1992, 49]. Proving perhaps
that he is not one of the masses, Denson does not consider Roosevelt’s methods
particularly worthy. As a memorial to the men trapped in the partly submerged
USS Oklahoma who banged against the hull in the hope of being rescued, he suggests that: “A recording should be made to duplicate their desperate sounds and
have it played every hour at the Roosevelt Memorial to remind Americans of the
treachery of their commander-in-chief” [ibid.].
Despite its manifold failures, our habit of relying upon the omnipotent state dies
hard. As Skoble notes, we just get used to having the state do certain things and
find it hard to imagine how they might get done without the state’s help [2002, 86].
Skoble argues that if we have trouble imagining a post office not run by government,
it may be because we are concerned that this might be the end of mail service. But
although in some Commonwealth countries the monopoly government post office
was also responsible for telecommunications, most of us have gotten used to the idea
that we can now choose from various providers of such services, and that mail itself
did not become a thing of the past, once Fedex and UPS got in on the act.According
to Creveld, war provided much of the impetus for the centralization of power in
the monarch and for the expansion of services to encourage subjects to put on the
king’s uniform [1999, 336]Other writers such as Porter have also remarked on the
connection between war and the welfare state, whose foundations were laid during
the age of imperialism which preceded World War I.Those foundations continued
to be built on between the Wars with the structure of the welfare state being
completed in the aftermath of World War II [1994, 179-180].
With respect to the war economy as it were spilling over into peace time, Gilbert
has noted Churchill’s interest in harnessing the energy used to fight the Great War
to build a better Britain, including such policies as nationalizing the railways, progressive taxation and state supported housing [2006, 55, 67]One might well wonder
why Churchill, who at one time had supported free trade against protectionism,
would advocate state monopolies to remedy the supposed faults of private ones.
Mavor claims to have witnessed similar enthusiams in Ontario politicians who in
the same era advocated public ownership of Ontario Hydro, a fact which he attributed to “an attempt on the part of a small number of politicians to establish an
70
industrial monopoly and to manage this monopoly in such a way as to keep themselves in power” [1925, 240-241]. Nor would this be the last time that government
in Canada would try its hand at business. Foster reminds us, for example, of the
celebrated case of Petrocan, the main result of which has been a $10 billion increase
in the country’s debt, requiring about $1 billion a year to service, or the equivalent
of the income tax from 100,000 average families: “When government levies taxes
for social policy, it may fairly claim that there will be fewer Cadillacs so there will
be more welfare cheques. But when it creates something like Petrocan, it ensures
that there will be both fewer Cadillacs and less money for welfare” [1992, 300-301].
Thus it is not surprising that Churchill believed that the methods of the wartime
economy could be applied to peacetime, that lessons learnt in recycling spent shell
casings to overcome a shortage of brass could help create public housing. Total
war thus brought about the total ascendancy of the state, with the result that by
the end of the World War II, Creveld is able to characterize its role thus: “Making
use of tools such as statistics, taxes, the police, prison, compulsory education, and
welfare, the state had been extending its power over civil society for centuries,
imposing its own law, eradicating or at least weakening lesser institutions in which
people used to spend their lives, and building itself up until it towered over civil
society” [ibid., 354].
While the relief of civil disasters is a natural enough extension of the all encompassing role the state can be seen to have arrogated to itself, Hurricane Katrina and
other calamities have led many to question just how effective the state really is as a
relief agency. One of the problems with state intervention is that it tends to crowd
out private initiative, with the result that as Taylor argues, “positive altruism and
voluntary cooperative behaviour atrophy in the presence of the state and grow in
its absence” [1987,168]. Moreover, it is often claimed, for example, that Canada’s
social safety net is more extensive than that of the United States. However, instead
of comparing how much our respective governments are willing to redistribute to
the less fortunate, when we look at how much individuals give privately to charity, Leroy has shown that every US state with the exception of West Virginia is
considerably more charitable than Canadian provinces [2004-2005, 9-13].
Of course others have thought that the state and its tax apparatus were necessary to guarantee rights to life, liberty and the pursuit of happiness, characteristic
of a liberal society. Thus Holmes and Sunstein cite the example of the 1995 fire in
Westhampton, NY, which took three days to extinguish. The fact that there was
no loss of life and minimal property damage is attributed to the spending of upwards of $2,000,000 in public funds to achieve that outcome. Actually, I would have
thought that fire-fighting was not the most obvious example of state intervention
to prevent losses to life and property, since throughout much of its history it has
been largely voluntary. Indeed, Holmes and Sunstein themselves concede that 1500
local volunteer firefighters participated in Westhampton. Bush fires typically occur
in less densely populated areas, and are largely fought by volunteers. Volunteer
rural fire brigades are responsible for about 90% of the land mass of the state of
New South Wales, Australia, for example. The fact that paid services may add to
71
the cost of anything contributed by volunteers, as in the case of Westhampton, is
no guarantee that those services were necessary or that the money was well spent.
Indeed, Skoble cites the rebuilding of the city of Chicago largely though private
charity as evidence that government is not necessary for disaster relief [2002,88].
McChesney notes further that only about $50 million of the $200 million losses
incurred in the Chicago fire of 1871 were recouped through insurance, with many
of the insurance companies being bankrupted as a result [1986, 71]. McChesney
goes on to show how we got from fire-fighting being universally a volunteer activity
in 19th century America to the government monopolies now common in larger urban
areas. Traditional wisdom has it that direct municipal control of fire services was
occasioned by market failure, notably where competition between rival volunteer
brigades impeded efficiency. However, McChesney concludes that: “the emergence
of paid fire departments may be better explained not as a response to market
failure but as a source of political patronage” [ibid., 92]. The fact that much of
North America and Australia, for example, is still served by volunteer fire brigades
shows that government is no more necessary now than it was a century or so ago
to ensure the service, thus supporting McChesney’s argument that the reason for
municipal takeover is probably not one of public interest. It seems that in rural
areas there is less chance of Tammany Hall being confused with public interest, with
fire fighting being seen on a par with barn raising. As McChesney notes, the fact
that the most famous boss of Tammany Hall, William Tweed, whose notoriety as
one of the more aggressive volunteer fire captains seems only to have helped his later
political career,49 lends further support to the view that municipalization had little
to do with public interest and everything to do with the interests of fire-fighters,
insurance companies and politicians [ibid., 83-84, 88]In the case of the latter, public
employees offered more scope for patronage and voting influence, and it is probably
not a coincidence that the change from private to public fire departments occurred
during the era of ’machine’ or ’boss’ city government. Nor was this change confined
to protection agencies. Publically financed education arose at about the same time,
and according to West, once again was largely dictated by self interest [1967, 128].
As to why we should not be surprised that those claiming to act in the public
interest are in fact acting in their own, Jasay explains that in contractarian theories of the state, the state is not a contracting party, but rather is the agent of the
principals to the contract, with the intent being that it act impartially on behalf of
the principals [2002,51]. Jasay suggests that such an intent would acquire copious
amounts of virtue in order to be vaguely credible, if only because of a lack of any
self-enforcing structure. Of course, he doesn’t think any more than I do that there
will be sufficient virtue to go around, which would ensure that the state not only
delivered on formal equality, but that it could somehow avoid the temptation of
acting like one of the principals, and the primus inter pares. The likelihood of
its not succumbing is considerably reduced by the fact that although the government of the day may change, the state and its bureaucracy is permanent [ibid.,
50]Thus McChesney recommends that we treat the bureaucracy simply as other
49
see Ackermann [2006, 18]
72
actors or stake-holders with their own interests which would explain why “government officials might find it advantageous to define rights in themselves to establish
government, rather than private, use of resources. Even if nonoptimal socially,
public ownership would emerge when it offered greater net benefits to government
definers of rights” [ibid.,81].
On the other hand,Holmes and Sunstein claim that libertarians talk rather
glibly about the “minimal state” when the cost of policing and corrections in the
US amounted to some $13 billion in 1992. Given that much of this amount was
supposedly directed to protecting private property, then even the so-called minimal
state could run up significant coasts as it did in the Westhampton fire. In response,
it is very difficult to conclude much at all from government expenditures, as the
Auditor-General for Canada is fond of pointing out. In the case of policing and
corrections costs, we need to know whether law enforcement was directed towards
removing serious threats to life and property, which we might think should remain
the concern of even a minimal state. Browne, for example, has suggested ending the
so called war on drugs and the prosecution of other victimless crimes, allowing us
to concentrate on genuine crimes against the person and property of others [2000,
188].50 To avoid the inefficiency and corruption common to public authorities he
encourages greater use of private companies in crime detection [1995, 137]. That is
to say, the costs of law enforcement which Holmes and Sunstein thought libertarians
were so cavalier about could be reduced by about 45% by giving up the war on drugs
alone. Bergland suggests eliminating at least 17 US federal departments, including
FEMA, most recently notorious for its failures in responding to Hurricane Katrina,
in order to produce a government only a fraction of its present size and more
appropriate to its constitutional mandate [2005, 163]. In fact, Otteson argues that
the all pervasive welfare state Leviathan has exceeded its moral mandate as well,
in that its interference is incompatible with treating its citizens as persons, who
should be free to make bad choices and suffer the consequences [2006, 78-79].
Thus it seems somewhat beside the point to pronounce with Holmes and Sunstein that: “An effective liberal government, designed to repress force and fraud,
must avoid arbitrary and authoritarian tactics. Those who wield the tools of coercion must be institutionally disciplined into using it for public, not private, purposes” [1999, 64]. No doubt a government that confined its responsibilities to the
prevention of force and fraud, might be welcomed, even by some libertarians, and
it would doubtless be a good deal smaller than it is today, but as we have been
pointing out, government typically does not confine itself to those tasks. In fact
if such a prospect is not embraced by all libertarians, it is because they see little
likelihood of ever reducing the writ of government to that understood by classical
liberalism. Because the governors of the republic do not confine themselves to their
moral mandate, namely the protection of individual liberty, it becomes much harder
to avoid arbitrary and authoritarian measures. As McChesney pointed out, there is
little chance of getting officials to wield their authority in the public interest, even
50
See also Bergland [2005,88,98]; Block also foresees retailing recreational drugs in the same
way we came to sell liquor post Prohibition]
73
though most claim by definition to be doing just that, namely to be engaged in
“disinterested calculation of social welfare increases” when in actual fact they are
calculating their own expected personal gains. One of the rights which the governors reserve unto themselves, if not exactly in themselves, is that of deciding, for
example which uses of resources, such as land, are in the public interest and which
are not. Thus they reserve such rights as those of planning, zoning, or eminent domain. Whereas the latter, for example, was traditionally mostly invoked for public
works such as roads or bridges, it is now often used to assist private developers
in projects politicians favour.51 Following McChesney’s analysis, the governor is
first and foremost helping himself, by consolidating or even expanding the reach of
the state at whose trough he feeds. Other options were clearly theoretically open,
requiring little or no government action, such as leaving the developer to assemble
the required real estate by making deals with the individual owners. Respecting
the rights of individual property holders could well prove more costly, than if the
developer were subsidized by state coercion in the form of eminent domain, which
is why he will likely choose the latter method.
In his essay on the history of property Richard Pipes discusses a related assault
by government on private property undertaken in the name of affirmative action,
supposedly in order to reduce discrimination of one sort or another, especially in
the workplace. In terms of public goods, the claim is that, left to their own devices, the unregulated interactions of ordinary people will fail to produce the good
of non-discrimination. Not only is there the question whether it is anybody’s job
to produce such a good, 52 as Pipes points out, attempting to do so discriminates
against those not singled out for preferential treatment [1999, 270]. Richard Epstein
similarly notes how little anti-discrimination legislation has to do with upholding
freedom of contract and prohibitions against force and fraud. Under a liberal dispensation individuals decide with whom to do business and on what terms, while
the state’s role at most is one of securing “a zone of freedom against aggression
and fraud” for conducting such transactions [1995, 3-4]. Like the many government
interventions already mentioned, such policies rest on all manner of assumptions
which have rarely been put to any sort of empirical test. Sowell concludes after close
examination of such initiatives in a variety of countries that despite claims made in
their favour there is little or no evidence of their effectiveness [2004,198]. Moreover,
it is interesting that Sunstein himself thinks that the futility of many government
programs could be avoided by engaging in detailed cost benefit analysis, including
qualitative and quantitative estimates of expected outcomes [2002,20]. Perhaps a
cost benefit analysis might address some of the defects Sowell found with respect to
affirmative action programs in particular, though something like his retrospective
investigation is also needed to see whether a program lived up to its expectations.
Of course the politician is likely to respond that he has his own cost benefit analysis
to conduct, and it is quite unlikely his reading of the political tea leaves will bear
any resemblance to the sort of findings Sowell or Sunstein would have in mind.
51
52
Cf. Stossel [2004,149-150]
Cf. Narveson [2002a, 203-224].
74
Sunstein does indicate some awareness of the pitfalls of government regulatory policy, foremost being “exceptionally poor priority setting, with substantial resources
going to small problems and with little attention to some serious problems” [ibid.,
4]. Further he comments that: “the national legislature is in a poor position to
ensure that regulation makes overall sense and engages in sensible priority setting.
Often an initiative owes its origin to the fact that a single committee, led by one
or more powerful officials, is able to insist on it, and the technical issues are simply
too complex for others to resist” [ibid., 28].
Despite such reservations, Sunstein reports that the Office of Management and
Budget’s accounting of the costs and benefits of regulation generally show benefits to be in excess of costs. While he admits that such figures are probably
self-serving,he believes we need to start somewhere, and that on the whole in the
case of most government interventions, benefits exceed costs. In order to arrive at
the latter conclusion, he apparently takes the government’s word for it, though he
does admit that regulatory policy involves compliance costs of at least $400 billion
a year [ibid.,4]. But even here Sunstein may be underestimating compliance costs
by about 75%, since Blundell and Robinson report another study where they are
estimated at $700 billion, of which only 2% falls on the regulators. Indeed the
fact that the great bulk of estimated compliance costs are externalized explains the
great growth of regulations, whose supposed rationale was of course to overcome
externalities: “though market failure is the common reason for urging government
regulation, the institution of regulation itself leads to a different form of failure”
[2000,5-6]. Holmes and Sunstein were indeed right to qualify as “ideally conceived”
the notion that “a liberal government extracts resources from society fairly and
efficiently” to produce socially useful services. The reality of course is mostly otherwise. While the existence of taxes is one of the more obvious examples of the
government’s extracting resources, and the clearest sense in which it is liberal is
that it is liberal with other people’s money, I continue to maintain, pace Edmundson and others, that there is no warrant for its doing so. On the contrary, to the
extent that the myth of authority persists,as Mencken pointed out so aptly, it has
to do with the view that government is not a mere human institution but rather “a
transcendental organism composed of aloof and impersonal powers devoid wholly
of self-interest, and not to be measured by merely human standards.” In reality
“we almost invariably find that it is composed of individuals who are not only not
superior to the general, but plainly and depressingly inferior, both in common sense
and common decency” [1958, 179-180]. If government is not entitled to extract the
resources in the first place, then its doing so “fairly and efficiently” is of little interest, though, as Narveson points out, governments which insist on providing services
have a duty to distribute them impartially [1999, 303]. Moreover, the fact that one’s
resources are supposedly redeployed “skillfully and responsibly to produce socially
useful public goods” is also beside the point, since the taxpayer is no doubt capable
of finding his own pet projects to spend money on, rather than have them dreamed
up by the bureaucracy, whose schedule of socially useful public goods will likely
be different from that of the taxpayer. Of course, there is a good chance that Joe
75
Public’s schedule of goods will include the deterrence of theft, which is doubtless
why Holmes and Sunstein present it as a paradigm case.
On the other hand Mencken would have found it somewhat ironic that deterrence of theft should be placed in the hands of those who in his view, have about as
much public spirit as so many burglars or streetwalkers and are about as useful to
the commonwealth as an abundance of “tightrope walkers or teachers of mah jong
[ibid.,180,181]” As David Friedman reminds us, since government consists largely of
legalized theft we find the same principles operating as with private theft, notably
that “the wealth taken is mostly a net loss, not a transfer” Further,those competing for government handouts will invest close to the expected payoff in order to
secure it “just as a private thief will put in twenty dollars worth of labor to steal
twenty-five dollars worth of loot” Indeed, sa with the latter, resources are required
to minimize depredation, such as tax avoidance strategies, with the result that “in
the long run, society is probably poorer by more than the total amount stolen”
[1989, 153-154].
Not only do governments claim the authority to take possession by force, which is
to say they have the right to do what is forbidden morally and legally by others, they
similarly claim the high moral ground when dealing with fraud. The same hypocrisy
is evident here as in other government enthusiasms. As Bennett and DiLorenzo
write, governments have responded to demands for accountability by moving more
and more of their expenses off-line or off-budget. They concluded for example
that local government, the sector supposedly most responsive to its citizens: “is
largely out of control and beyond the direct scrutiny of taxpayers” [1983, 122]. In
the case of national governments, Bennett and DiLorenzo cite well publicized loan
guarantees made directly by the US Congress, such as those to New York City and
to the Chrysler Corporation. However, governments of all stripes seem to have a
knack for bailing out failing enterprises, and in the view of Bennett and DiLorenzo
substitute “inefficient and inequitable political resource allocation for the more
efficient market allocation of capital” [ibid., 142]. Canada, of course, does not lack
for similar examples which are short on economic rationale but long on political. As
Foster records there is a long list of disastrous government interventions from the
Bricklin car to Mirabel airport, to say nothing of Petrocan, which left the country
with little other than an enormous debt [1992, 297,301]. Bennett and DiLorenzo
further observe that it is not even necessary to vote appropriations to generate
funds for pet projects. Lawmakers can simply create various forms of regulation
to achieve the same effect, such as import quotas on automobiles which subsidize
local producers at the public’s expense. Another form of tariff which also restrains
trade on behalf of producers is a licensing requirement on all manner of jobs from
taxi drivers to funeral directors [ibid., 165]. Further, on the matter of regulation,
McChesney reminds us that politicians often stand to gain by merely threatening to
regulate, which he characterizes as a form of political extortion. The threat might
also involve the deregulation of hitherto cartelized industries, which can generate
large political contributions from cartels, such as the dairy or medical industries,
anxious to head off such a threat.Interestingly McChesney does not necessarily
76
oppose such “milker bills,” because politicians would find a way round any attempt
to get rid of them, and possibly inflict greater harms than the present forms of
rent extraction. In his view the obvious way to reduce the latter is to reduce “the
size of the state itself and its power to threaten, expropriate, and transfer” That
is of course exactly the solution we are proposing here, since we have the luxury of
setting aside the real world of politics, which as McChesney observes is very much
“second best” [1997, 169,170].
3.4.1
Public goods via decentralized coordination.
With respect to the normative theory of the state, as opposed to the sordid realities
of everyday politics, it has become something of a commonplace for the authority
of the state to be seen in the final analysis as one of solving both coordination
problems and prisoners’ dilemmas, of seeing that public goods are produced which
individuals left to their own devices will fail to provide. Thus Edmundson writes
that: “The acts of the state themselves are capable of changing the moral situation of citizens, for example, by solving coordination problems and prisoners’
dilemmas” [1998, 69], while Raz holds that: “The case for the legitimacy of any political authority rests to a large extent on its ability to solve coordination problems
and extricate the population from prisoner’s dilemma type situations” [1990, 132].
While Edmundson does not elaborate upon prisoners’ dilemmas, he does discuss
the matter of coordination, principally that of the necessity to coordinate on the
side of the road we drive on, a matter Hume himself had seen as relevant in the 18th
century: “They cannot even pass each other on the road without rules. Waggoners,
coachmen, and postilions have principles, by which they give the way; and these
are chiefly founded on mutual ease and convenience” Some rules are even needed
for pedestrians to prevent “jostling, which peaceable people find very disagreeable
and inconvenient” [1975, 210]. Raz for his part stressed the right of the competent
authority to back up such conventions by coercion, since ”coordination may fail
altogether if it does not enjoy a sufficient level of cooperation, and those who cooperate may face greater burdens than would be otherwise required because some
people prefer to free-ride” [1990, 15].
More recently Russell Hardin has taken up what he considers “the central mode
of social order in a complex modern society,” namely coordination. On his view
much coordination occurs spontaneously, founded no doubt like the principles of
Hume’s coachmen and postilions on “mutual ease and convenience” Such rules, as
Hume observed, may well be somewhat arbitrary like the rules of a game, rather
than something necessary for survival. Or as Hardin puts it: “Any way that would
work to coordinate the citizenry is good for our purposes. There is typically no
a priori reason for choosing one way of doing things over some other way or even
many other ways” [2003,14]. Hume in fact thought the doctrine of first possession,
“where nobody has any preceding claim and pretension,” to be also one where we
are unable to “determine any particular rule, among several, which are all equally
77
beneficial,” but where successful coordination would “prevent that indifference and
ambiguity, which would be the source of perpetual dissension” [ibid.,195-196].
As a variation on the rules of the road as the paradigm case of coordination arrived at over centuries, we could also point to more recent transportation history, in
particular to railway gauges.While so called Standard Gauge [4’8 1/2” — 1435mm].
is used in about 60% of the world’s countries, including most of North America,
narrower gauges are still to be found on this continent, as well as the occasional
wider one such as the Toronto Transit Commission [4’10 7/8” —1495mm]. which
is similar to a gauge found in the American mid-West until after the Civil War.
Another urban system, the BART in San Francisco, uses an even broader gauge
[5’6” — 1676mm], widely used in Canada till 1873. The main impetus toward
eliminating the variations typical in the 19th century, which is to say coordinating
on the gauge which became standard in Britain by the end of that century, was
economic. Interoperability allowed for much easier transfer of freight over the large
distances in North America, for example, whereas the persistence of those variations
has proved economically costly in a country such as Australia. Where territorial
boundaries have proved an obstacle to change, technological developments such as
variable gauge axles have proved useful, e.g. between France and Spain, or China
and Central Asia.
Not only do coordinations arise for the most part spontaneously, they are also
largely self-enforcing, which as Hardin points out, is different from the answer
traditionally given, namely that it is authority. We keep ourselves in order because
it is in our interest to do so, and such coordinations may just evolve, as they did with
rules of the road [ibid.]As long as we settle on a particular railway gauge for a given
system, variability between systems, as between the TTC and surrounding CN or
CP railways, need not be a problem unless we require interoperability. Ellickson also
emphasizes the fact that order often arises quite independently of the state, contrary
to the belief of statists who fail to appreciate informal ordering systems [1991, 4]. As
a result of his study of how ranchers in Shasta County, Calif., actually got along with
one another, solving various problems such as straying cattle and boundary fences,
Ellickson observes that Hobbes was a little too ready to assume that order required
government. Rules and entitlements can often arise spontaneously, supplementing
or preempting those of the state, including enforcement by gossip and occasional
resort to violence [ibid., 143].
In their study, Anderson and Hill report that cattlemen’s associations found
more productive ways of enforcing grazing limits than the range wars often depicted in film, such as excluding non-cooperators from the economic benefits of the
round up.Even the great and famous were not immune from such sanctions. When
Theodore Roosevelt expanded his herd well beyond the range rights associated with
a new ranch, another leading rancher informed him that if he did not resolve his
cattle’s trespass by acquiring additional grazing rights at a substantial premium,
he should clear out, a warning which Roosevelt apparently heeded [2004, 164-165].
Anderson and Hill conclude that while the American West provides ample illustration of the use of property rights to encourage responsible development, there are
78
other cases, such as water shortages in Oregon, to which the government responded
with fiat property assignments, which in the view of these writers dissipated rents
and failed to promote cooperation [ibid., 211-212].
As further examples of non-hierarchical processes of coordination, Ellickson
mentions language and cities. In the case of the former, he cites the English language which developed into the pre-eminent world language, shaped by millions of
speakers, without the need for any analogue to the Acadmie franaise[ibid., 5]. As
an example of a city whose development was largely managed in the absence of a
master overseer, Ellickson cites Chicago, which resulted from the coordinated efforts
of a few million people in the Midwest. Chicago’s rapid growth paralleled that of
famous medieval European cities such as Venice, Genoa and Antwerp, which historically played an important role in creating a class of citizens independent of feudal
lords. They became important centres of commerce and wealth, and as Richard
Pipes records, they were instrumental in creating a class of property owners who
possessed political, personal, economic and legal freedoms.53 Among those freedoms
were the right to self-government, the right to own and alienate property, exemption
from external taxes, and the right to due process including freedom from arbitrary
arrest and searches [1999,108-111]Finally, another institution of non-hierarchical
coordination is the free market which for example enables food to get from the
farm to the kitchen, employing thousands of people along the way, most of whom
only contribute to solving a small piece of the market puzzle;not that it would be
any benefit, to have a market czar in charge of the whole operation, since,as Ellickson points out, “undirected market processes can supply food more economically
than would an intentional hierarchy” [ibid., 5].
So the answer to the question as to who will keep us in line, is as Hardin
pointed out, that we will do so ourselves, because it will be in our interest to
follow the coordination that we have settled upon. We are all the authority that is
needed, and are quite capable of taking on the Teddy Roosevelts of the world when
required. One of the benefits of coordinating on one’s own solutions is that one can
tailor them to local conditions which may require coordinating upon different rules.
Anderson and Hill note for example that the west required a different approach to
water use from the common law tradition of landowner riparian right which held
in the east where there was no shortage of water. In the west they opted for a
prior appropriation doctrine which permitted diversions of less abundant water for
farming and mining, as well as tailoring rules to fit the conditions faced by people
such as trappers, ranchers and wagon train travellers [2004, 10]. However while
Hume clearly thought that there was a place for non-hierarchical orderings, such
as those of the waggoners, coachmen and postilions, for the appropriate use of the
road, he seems at the same time to have thought that only government and the
magistrates could ensure that justice and equity prevailed over “the allurements
of present pleasure and advantage” in order to preserve “peace and order among
mankind” [1975,205]. However, as we saw earlier, the waggoners and coachmen
53
Thus the famous slogan Stadtluft macht frei which the Nazis famously modified to suit their
own purposes.
79
apparently have “sufficient sagacity” to realize that they need rules of the road
at least for their own safety and convenience, so it is not clear why Hume thinks
we now need Whitehall’s help to do what it is plainly in our interest to do. For
he argues that the exercise of liberty in accordance with natural law was not “a
sufficient restraint,” otherwise there would have been no need for positive law.
However, customary rules of a trade are a form of positive law, so it isn’t just a
matter of choosing between positive rules handed down by government and natural
justice, as Hume implies. Non-hierarchical rules can apply the broad doctrines of
natural justice and liberty to everyday issues, such as right of way on the road,
or as Hume reminded us, avoiding “disagreeable and inconvenient” jostling on the
sidewalk.
It seems reasonable to assume that if the principles of natural liberty and justice
were just part of the human stock in trade and existed prior to government, at least
as Hume understood it, detailed rules to coordinate other human activities could
be developed by those whose mutual ease and convenience depend on them. It isn’t
clear why we need Hume’s vast apparatus of government to develop positive rules,
though one could imagine that decentralized law making might be thought to do
little to address concerns such as Dworkin’s about “checkerboard statutes,” or those
where “a community enacts and enforces different laws each of which is coherent
in itself, but which cannot be defended together as expressing a coherent ranking
of different principles of justice or fairness or procedural due process” [1986,184].
One might respond to such a claim by observing that the lack of principle and
integrity which Dworkin finds in the multitude of statutes is apparently the best,
that two or three centuries of parliamentary rule have managed to produce. Perhaps
it is time to leave “government and political society,” which Hume thought essential,
and McChesney second best, and draw upon earlier common law traditions which
seemed more faithful to principles of natural justice and liberty. Although this is
probably not what Dworkin had in mind, it is not necessarily incompatible with his
call for greater legislative integrity, since: “Integrity expands and deepens the role
individual citizens can play in developing the public standards of their community
because it requires them to treat relations among themselves as characteristically,
not just spasmodically, governed by these standards” [ibid.,189]. However, to the
extent that for Dworkin integrity implies some sort of top down uniformity of
principle, for example that government uniquely creates and enforces a property
regime [ibid., 296], as we saw in the case of riparian rights, local conditions may
dictate considerable variation in customary rules and have often developed quite
independently of government intervention.
However, it would seem that the role of citizens in developing rules for everyone,
as touted by Dworkin, has diminished with ever expanding government. Indeed as
Hazlitt wrote a generation ago, we are accustomed to “a ceaseless downpour of
laws,” with the US Congress at that time having enacted some 40,000 laws, which
Hazlitt thought could be reduced to a fraction of that number if government confined itself to “laws simply intended to prevent mutual aggression and to maintain
peace and order” [1997,41]. As Hasnas points out, those who took their disputes to
80
the early moots were simply seeking a better alternative to blood feuds, which the
moots provided by at times levying heavy fines against wrongdoers, rather than
imprisonment [2005, 128]. Further, Rothbard recommends returning to a system
where restitution is paid to the victim of crime, rather than have the victim pay
taxes to keep his attacker in prison, as at present [1978, 45-46]. Successful resolutions by the moots eventually built up a body of customary law or morality, which
as Hasnas writes, served as the basis for the English common law. Such decisions
established payments due in damages as well as rights and behaviours necessary in
a peaceful society [ibid., 129-130].
Hasnas also records an important development in customary law, namely the
Law Merchant in medieval Europe, which provided the assurance necessary for
trade both within and beyond state borders. Merchants at first devised their own
informal tribunals to settle disputes because national courts lacked expertise and
efficiency in this area. These merchant courts eventually developed into a system
of commercial courts which applied the principles of the Law Merchant throughout
Europe [ibid., 130-131]. Benson writes that one of the significant contributions of
the Law Merchant was the development of negotiable credit instruments, such as
promissory notes and bills of exchange. Merchants thus replaced what had been lost
with the fall of Rome, namely a reliable currency.54 Benson notes various features
of customary law, of which the Law Merchant was a paradigm case, such as emphasizing individual rights through voluntary cooperation, which was encouraged
in order to eliminate recourse to violence; informal sanctions provide incentives for
offenders to participate in hearings which could award restitution to victims, with
rules evolving in response to changing circumstances [1990,35-36].55
Benson goes on to address the question, if customary law, particularly as developed in the Law Merchant, proved so effective, why it was not continued to the
present day. To the extent that such traditions have been abandoned in favour of
the king’s law, it has to do with the rise of monarchies and the transition from
customary to authoritarian law. Even with the eventual transition from absolute
monarchies to popular governments of one sort or another, governments have continued to act in loco regis as the source of law and social ordering. But, as Benson
reminds us, while government institutions and laws have tended to eclipse those of
customary law, contrary to Hume, this does not mean that that they are necessary
for maintaining social order, to say nothing of the fact that authoritarian law runs
counter to the tradition of individual rights and property recognized by customary
rules [ibid.,45-46]On the other hand, royal law in fact had to coerce victims to seek
redress at criminal law from the king’s courts, since resorting to customary law offered no profit for the monarch; thus, for example,royal law penalized out of court
54
Nor would this be the last time that merchants produced their own currency: cf. Selgin’s
account of privately produced commercial money in late 18th century England [2008]and Hayek
who argued that a government monopoly in money was one way to ensure that we got bad money
[2008, 25-26].
55
Hayek found such characteristics typical of rules which originated in customary practices,
which he thought served as a reminder that,if anything, authority derived from law and not the
reverse [1975, 85,95].
81
settlements or restitution [ibid., 62]. Further, the role of public prosecution and
police was greatly enhanced by the inability to absorb into postwar economies large
numbers of demobilized veterans who had been overseas fighting the king’s wars and
found the adjustment to civvy street somewhat onerous [ibid., 64]. Again, Benson
emphasizes that: “The fact that government law has taken over as much as it has
is not a reflection of the superior efficiency of representative government in making
or enforcing law that facilitates interaction” Rather in order to transfer wealth to
the politically powerful, you need a coercive apparatus, unlike customary law which
relies on cooperation and enforcement by reciprocal incentives. Although defenders
of authoritarian law argue that it is essential for maintaining order, Benson argues
that the adversarial process of pitting givers against takers undermines order and
provides disincentives against cooperation [ibid., 77]Writing more recently, Cutler
supports the view that it was in the interests of states to juridify what had for
centuries been regulated by custom, thus eclipsing private merchant regulation and
enforcement [2003, 177].
However, it now appears that independent commercial arbitration never entirely disappeared, and that the Law Merchant has taken on a new lease of life
in what some have called the age of globalization, which in fact is not new but
has accompanied the Law Merchant since its inception. Cutler cites an observation concerning the Law Merchant to the effect that she is a venerable old lady
who has twice disappeared from the face of the earth and twice been resuscitated
[ibid., 108]. Its first renaissance was in 11th century Europe with the rebirth of
commerce. Its second reappearance from its moribund condition was in the 20th
century, where functions which the state had assumed have been returned to private organizations[ibid., 190], and according to Cutler, one area where the return
to privatization is especially noticeable is in the area of dispute resolution, a task
which was central to the Law Merchant from its very earliest days [ibid., 225]. Indeed Cutler’s claim that we have seen the revival of the medieval lex mercatoria
or Law Merchant, where private arbitration of international commercial disputes
is once again the norm, is all the more interesting since this is not something she
particularly relishes. For Cutler contends that an elite global “mercatocracy” is
responsible for this revival and expansion of private dispute resolution [ibid., 12].
The fact that it is an elite association hardly seems troubling, though perhaps the
problem is that it is a private one and not a political one which Cutler might have
some chance of influencing. However, if international business is something Cutler would rather have done, then I’m not sure what is standing in her way: the
mercatocracy apparently includes lawyers. On the other hand, as Mises wrote, “if
you prefer to the riches you may perhaps acquire in engaging in the garment trade
or in professional boxing the satisfaction you may derive from writing poetry or
philosophy, you are free to do so” [1972, 10].
But perhaps there is a more serious objection, namely that, as Cutler puts it,
in liberal mythology “Private international economic relations are depicted as the
apolitical realm of freedom, while the public sphere is depicted as the political realm
of necessary unfreedom [ibid., 69]” Indeed, liberalism, at least of the classical, or as
82
Cutler would have it, the mythological variety, does claim that to live under a liberal
dispensation is to have the right to exchange one’s property with anyone willing
to do so. As Rothbard writes, if we own something we have the right to alienate
it, and the free market rests on the right to property; and,in addition to tangible
goods, we may also exchange our labour [1978, 39-40]. Cutler also understood
liberal mythology as holding private exchange to be “natural,neutral, consensual
and efficient” [ibid.]. As for whether or not having property in the first place, and
then exchanging it for some other property which I value more and someone else
values less is natural may be hard to say, since Cutler doesn’t at least at this point
clarify what she means. But it is natural in the sense that mankind seems to have
engaged in that activity for so long that it seems a natural thing to do. Rothbard
would go a step further and say that we have a natural right to own something we
have produced or acquired by exchange, beginning with the right to own ourselves.
Or as Narveson writes: “On any reasonable accounting of the matter, the right
to property simply is part of the more general right to own one’s own life” [2006,
3]. Cutler implies that market relations are not consensual though again it is not
clear what she means. As Narveson puts it: “A has x, B has y, A believes himself
to be better off with y than x, given the choice, and B with x rather than y, given
the choice. The market enables them to exercise precisely that choice, and thus
improve their respective situations” [ibid., 4]. If it were true that such exchanges
were not consensual, they would not take place since as the old saying goes, it
takes two to tango, or as Rothbard observes, “The developed market economy, as
complex as the system appears to be on the surface, is nothing more than a vast
network of voluntary and mutually agreed-upon two-person exchanges such as we
have shown to occur between wheat and cabbage farmers, or between the farmer
and the teacher” [ibid., 40]. Rothbard’s remarks apply just as well to international
trade, though Cutler seems troubled by the prospect that a global mercatocracy,
as she calls it, is able to exercise “near hegemonic influence,” and is in the process
of “harmonizing, unifying, and globalizing merchant law” [ibid., 12].
If indeed merchants are running their own show, that is what you get to do when
you own property. It is also something they have been doing since the Middle Ages,
since as Hasnas explains, in the absence of government, merchants were forced to
step up to the plate to secure trade and handle disputes” The trial and error process by which they did so produced the Law Merchant and the system of merchant
courts that eventually established a set of commercial rights that facilitated peaceful exchange and the flow of commerce” [2005, 131]. However, now that there is a
European government, Cutler thinks that we are into a different ball-game and the
merchant hegemonists can’t quite carry on as they did before. But, as we pointed
out above, the Law Merchant not only was, but appears to be a continuing example of regulation outside of the state, and thus, as Cutler herself puts it, ”reasserts
the efficacy of merchant custom as a source of legal norms, favors the adoption of
soft over hard law and private arbitration over adjudication in national courts of
law” [ibid., 191]. Not that Cutler welcomes private regulation and adjudication,
which she considers yet another liberal myth, namely that “private regulation is
83
regarded as producing greater efficiencies by reducing transaction costs and achieving greater economies.’ ’[ibid., 237]. However, Cutler herself reports that the more
flexible nature of the Law Merchant allows it to tap into the Chinese quanxi, an
interconnected system of family and friendship networks facilitating social as well
as domestic and foreign economic relations. One would have thought it much to
be welcomed in the name of efficiency that, as she observes, “in China lex mercatoria and the old Confucian dimensions of Chinese legal culture interpenetrate”
[ibid., 235]. On the contrary, Cutler complains that the “increasing reliance on
soft, discretionary standards and privatized international commercial arbitration
is strengthening private institutions and processes, whilst weakening mechanisms
that work toward participation and democratic accountability” [ibid.].
We shall have more to say about the supposed virtues of “participation and
democratic accountability,” but suffice it to comment that the market offers, not
the sort of democracy which, as Narveson puts it, “gives everyone a hand in everyone
else’s pocket,” [2006, 4]. but one where, for example: “Those who satisfy the wants
of a smaller number of people only collect fewer votes- dollars- than those who
satisfy the wants of more people. In money-making the movie star outstrips the
philosopher; the manufacturers of Pinkapinka outstrip the composer of symphonies”
Or as Mises further reminds us, for those such as Cutler who claim to be concerned
that the mercatocratic elite will ride roughshod over the masses: “Capitalism is
essentially a system of mass production for the satisfaction of the needs of the
masses. It pours a horn of plenty on the common man. It has raised the average
standard of living to a height never dreamed of in earlier ages. It has made accessible
to millions of people enjoyments which a few generations ago were only within the
reach of a small elite” [1972, 10; 49]. Of course, the capitalist cornucopia can never
pour quite enough on everybody, it would seem, or at least not in such a way as
to satisfy those such as Cutler who complains of “economic liberalism obscuring
the distributional and even coercive foundations of private exchange” [ibid., 69].
No doubt to remedy such obscurities in Cutler’s ideal society, as Nozick famously
remarked, we “would have to forbid capitalist acts between consenting adults”
[1974, 163]Cutler’s view is similar to that characterized by Nozick where: “Each
person has a claim to the activities and products of other persons, independently
of whether the other persons enter into particular relationships that give rise to
these claims.” Nozick responds that allowing others to lay claim to what you
have produced is tantamount to making them a part-owner of you, and it doesn’t
matter whether this is achieved by taxes on wages or profits. Regardless of the
mechanism, the objection remains that “patterned principles of distributive justice
involve appropriating the actions of other people,” and thus “involve a shift from the
classical liberal’s notion of self-ownership to a notion of (partial) property rights
in other people” [ibid., 172]. Jasay has, in fact, recently questioned how much
we really need the notion of self-ownership to effectively respond to those, such
as Cutler, who think that freedom to engage in capitalist acts should be severely
circumscribed. Jasay thinks that we should dispense with the rather inelegant
notion of self-ownership and simply emphasize that we are at liberty to do whatever
84
we want with whatever we own or produce, with the onus being on someone else
to prove that for some reason, we are not at liberty to do so. Thus exchanges
of property are to be justified in similar terms to freedom of contract, where a
contract is accepted as just until evidence is produced to the effect that it was not.
In the case of property, “It is for challengers to prove that they–or the less-well-off
on whose behalf they plead– are entitled to take part or all of it away from him”
[2006, 11,13].
Cutler, to be sure, has not made any attempt to discharge such a burden of proof
other than vague references to supposed elites who make contracts under private
rules not subject to democratic oversight. However, with respect to the metaphor
of self- ownership which Jasay would be happy to do without, Narveson agrees that
many, philosophers and non-philosophers alike, are troubled by the notion that our
bodies could be considered our property. Narveson is not sure why this should come
as such a surprise, since people have been known to sell themselves to others, as
in slavery. Indeed, the libertarian objection to slavery has typically been in terms
of self-ownership, namely that we are rightful owners of ourselves and not of other
people [1988,67-68]. Jasay, for his part, might simply prefer to say that slavery did
not result from the exercise of freedom of contract, though as Hare, who served
as a POW/slave on the Burma railway, noted, “in some societies (Athens before
Solon for example), one could choose to become a slave by selling one’s person to
escape debt” [1998, 153]. While Jasay’s reluctance to speak of one’s relation to
oneself also extended to talk of disposing of parts of oneself, such as one’s labour,
there are no doubt enough examples of that to go around as well, from those in
poorer countries who sell a kidney to strangers, as well as those who donate one,
perhaps to a family member, to the man seeking amputation of a transplanted
forearm because it doesn’t feel like it belongs. Interestingly, G.A.Cohen reports
that leftists, who also have qualms about the thesis of self-ownership, at the same
time are not overly enthusiastic about the prospects of being compelled to donate
an eye to a blind person, were that technically feasible, despite the fact their having
two good eyes is a matter of luck [1995,70].
But to paraphrase Nozick, the fact that some lack the normal number of eyes,
limbs, parents, or other resources, is unfortunate rather than unfair, Cohen’s “standard leftist objections” notwithstanding. Thus Jasay asks rightly why fairness requires immunity from luck, or for that matter why justice requires fairness? [2006,
27]. The typical response is that most advantages are due to luck and therefore
undeserved. But Jasay further points out that it is wrong to assume that if something is not deserved it is therefore undeserved. There are many things neither
deserved nor undeserved and most of the advantages and disadvantages of everyday life usually ascribed to luck are in fact neutral with respect to desert [ibid.]. Or,
as Nozick observes, things do not have to be deserved “all the way down”; Rawls
may well deserve praise for A Theory of Justice regardless of whether he earned all
the assets, natural and otherwise used in its production [1974, 225].56
56
Or as Schmidtz writes, desert is “for honoring people who do what they can to be deserving
of their advantages [2006, 67]”
85
Even if we did allow that, to be fair, or to level the playing fields of Eton where
the Battle of Waterloo was supposedly won, we should attempt to correct for chance,
Jasay thinks it is still unclear why justice requires fairness, since the latter is “a
difficult and elusive notion,” as we have also had occasion to remark. Not only does
fairness dictate that we should control for chance, but it also “seems to involve
an array of conditions and norms to which games, contests, trades, exercises of
authority, and interpersonal relations must conform.” Poorly matched prizefighters
may lead to an unfair but not unjust outcome, as may stealing a good friend’s
partner. However such cases lend little or no support to the view that: “if being
lucky is unfair, it is also unjust, and the lucky therefore must share their good
fortune with the unlucky and must be made to do so by force in the name of
justice” [ibid., 28]. We appealed to the Law Merchant as an important example of
rules and conventions which grew up quite independently of the merchants’ cities
or states of residence in order to facilitate trade beyond those particular borders.
Contrary to Hume, we believe that we can have the benefit of “the twelve judges”
without “all the vast apparatus of our government” such as ” kings and parliaments,
fleets and armies, officers of the court and revenue, ambassadors, ministers and
privy-counsellors” [2003, 20]. Elsewhere, of course, Hume appears to have agreed
that while we could live without government, we could not manage without justice,
which is to say that conventions about property and contract precede government,
“and are suppos’d to impose an obligation before the duty of allegiance to civil
magistrates has once been thought of” [1960, 541].
Thus Jasay is prompted to ask, if indeed government is exogenous to society,
an effect rather than a cause of justice, that is “if agreements bind prior to the
state, how can the imperative need for it arise?” [1997, 14]. Hume’s short, and
somewhat unsatisfactory answer appears to be that “if government were totally
useless it never could have place” [1975, 205]. The evidence of history, as shown
for example in Hume’s own History of England from the Invasion of Julius Caesar to the Revolution in 1688, suggests that governments of one sort or another
have been a relatively permanent accompaniment of human society. One possible
exception is “the American tribes, where men live in concord and amity among
themselves without any establish’d government” However, in time of war they confer “a shadow of authority” on a leader, “which he loses after their return from the
field, and the establishment of peace with the neighbouring tribes” Hume claims
that such limited exercise of authority serves as a reminder of the occasional need
for government, when eventualities such as war or trade might lead them to overlook “the interest they have in the preservation of peace and justice” [1960, 540].
Indeed, there might be something to be said for resorting to government on an
ad hoc basis, which Hume thinks characteristic of the American tribes. Holcombe
points out that in the case of the Iroquois Confederacy, such a premium was put
on reaching consensus that the scope of government was limited so as to permit “a
high degree of political freedom and equality” European governments by contrast
were top down, rather than bottom up style of the Iroquois [2002, 50-51]. Hume
also had an explanation for top down governance, namely that it was best suited to
86
war, and provided a convenient model for post-war civil government to manage its
day to day crises or “fortuitous inventions” by reposing decision making in a single
individual [ibid.,541]. Thus not only do we lack the Iroquois consensus mechanism
for minimizing the costs government can impose upon its citizens, Higgs argues
that crises prove an endless source of government expansion which preclude a return to normalcy ” because the events of the crisis created new understandings
of and new attitudes toward governmental action; that is, each crisis altered the
ideological climate” [1987,59]. History was thus for Hume an important source of
experimental data about “the constant and universal principles of human nature.”
Polybius and Tacitus are as much scientists as Aristotle and Hippocrates, though
instead of studying “the nature of plants, minerals and other external objects,” the
former instead study human behaviour as revealed in “records of wars, intrigues,
factions and revolutions”[1975, 83-84]. While on the one hand Hume seems anxious
to distance himself from those philosophers who hold “that men are utterly incapable of society without government,”[1960, 539]. as well finding it remarkable how
readily the many submit to their few rulers [2003, 16], on the other hand, history
apparently teaches us that, despite a need for law and order, man has an incurable
tendency to forget his “distant interests” and succumb to the allurement of present
and possibly frivolous ones. In order to secure justice, we require obedience, and
thus appoint magistrates who “oblige men however reluctant, to consult their own
real and permanent interests” [2003,20-21].
I doubt if many classical liberals or libertarians are utopian enough to believe
that even if the state were to wither away as Marx predicted, we would not have to
deal with those who commit force and fraud against others.57 What we do assume
is that the trend to privatization of law and security, as evident in the centuries
old Law Merchant, will continue, as Benson says it has been doing in recent years,
where, it seems, the private security enforcement industry has overtaken public law
enforcement [1990,201]As for the justice which requires enforcement, Hume thought
that largely amounted to the rules of common law and morality, which more recent
writers, such as Narveson, have found encapsulated in the “general principle that we
are to refrain from inflicting harm or damage on others” [2006, 6]. Indeed Sumner
has recently argued that the Supreme Court of Canada regularly applies the test
of Mill’s harm principle, for example, to allegedly hateful or obscene publications,
where “the harms done by a particular form of expression must be balanced against
the harms that would be done by the restriction itself” [2004, 164].
While we are likely to agree with Hume’s interdiction against “fraud and violence” as being a precursor of the harm principle, we do not agree that government
or the state are necessary for maintaining moral order, because in Hume’s view, we
are more inclined to obey the magistrate than our fellow citizens [ibid., 21]. We
are of course interested in maintaining order, though we have much less interest
than Hume in having it supplied by politics. Just as the Law Merchant was able
to bring order to international trade, so it is our contention that much of society
could be privately coordinated as well, with policing, for example, being ever more
57
cf. Rothbard [1978, 234].
87
privately provided. As Rothbard commented, the extent to which this has already
happened,should dissuade us from thinking “that police protection is somehow,
by some mystic right or power, necessarily and forevermore an attribute of State
sovereignty” Not only are private agents often more effective than their overworked
public counterparts, the latter are less interested in acting as agents of the victim
than in punishing the criminal on behalf of society [ibid., 217-218].
One of the first to advocate market provision of police protection was, in fact, the
19th century French economist, Gustave de Molinari. He held that police interest
in society stemmed from a belief that they, as the most visible agents of the coercive
monopoly of governments, had the authority to remake it, which is simply Divine
Right in the garb of majority rule.As to whether security could be left to the
private market, Molinari thought the answer of most writers on government was
that a sovereign authority was required whose monopoly to remake society stemmed
directly from God [1977, 10]. Hume, on the other hand, writing several years
before the American Revolution in 1776, held as a matter of experience that order
in society is much better maintained by government. It should not be surprising
therefore that after another couple of centuries of experience, we are much less
confident than Hume was that, as Molinari put it, monopolistic governments really
possess the higher authority they say they do. On the contrary, as Rothbard argued,
it is our job to desanctify and demystify rulers as the American revolutionaries did
with the English monarch [2007, 6]. Moreover, according to Albert Jay Nock, the
early colonists shared the same realistic view of the State as their forebears, who
were beneficiaries of the merchant-State in England, or of the ancient feudal State,
namely, as Voltaire is supposed to have remarked,that the state is a device for
taking money out of one set of pockets and putting it into another [1994, 51].
While Hume seems prepared to consider the possibility that just as we can
have good and bad citizens, we could also have a magistrate who was “negligent,
or partial, or unjust in his administration,”he lacks the skepticism of his colonial
contemporaries. Hume seems to think that merely by dint of taking office, the
magistrate will avoid any temptation to partiality, and the citizenry will be more
inclined to obey an official than any of their non-official fellows. Moreover, there
is no shortage of those ready and willing to obey the dictates of government, just
as there is a ready supply of those willing to meet the apparent demand for “domination.” More often than not, would be administrators supposedly find they can
overcome their “private passions” to meet the demands of “the impartial administration of justice,” helped no doubt by the customary handsome emoluments and
perquisites of office [ibid., 21].
But, as Molinari pointed out, holding that some are fit to rule, while others
must of necessity be ruled, is just an example of the divine right fiction, namely
that rulers are appointed by the Almighty. Molinari thought that the prestige of
leadership was a function of the belief that the magistrates took orders from on high,
which led theoreticians to take great pains “to establish the superhumanity of the
races in possession of human government” [ibid., 10]. Hume certainly thought that
the governors were by definition superior to ordinary mortals,[ibid.]. something
88
another couple of centuries of democracy might have disabused him of [ibid.]. And
for those who are less persuaded of the official’s merit than he is, the former can
always resort to the use of supposedly legitimate force, on which he has a monopoly.
Towards the end of his essay “Of the Origin of Government,” Hume concedes
that government is characterized by a perpetual struggle between authority and
liberty, and although the former stops short of being absolute, it certainly requires
“a great sacrifice of liberty” [ibid.,22]Of course, we have been arguing throughout
this discussion that there appears to be no basis for political authority as such, or,
as Narveson has written,despite the fact that mankind has subscribed for millennia
to the omnicompetence of the state, “it is a fraud, and a travesty that no thinking
person could put up with for a moment” [1988,214]. Hume is right that government
requires considerable loss of liberty, and we have discussed various examples which
illustrate just that. As to the supposed struggle between authority and liberty,
while this might be true as a matter of Realpolitik, from the point of view of this
discussion authority is a non-starter. In the case of liberty, on the other hand, it is
something we all have a right to.
However, as noted above, Hume thought it unreasonable to believe that man
“following his natural liberty” could live “in entire peace and harmony with others”
Hume appeals to the longstanding notion of omnipotent government to justify his
claim that it is entitled to “abridge our native freedom,” since we cannot guarantee
that “in every instance, the utmost exertion of it is found innocent and beneficial”
[1975,205]. Of course, if Hume means by “utmost exertion” simply doing as we
please, without regard to others, then it is unlikely that acting that way will be
“innocent and beneficial.” But those such as myself, who contend that there is
a general right to liberty, and that it is in fact the only basic right there is, add
the important proviso that, as Narveson writes: “the principle of liberty says that
those whose actions do not adversely affect others are entitled, have a right, to
noninterference as far as that is so, whereas those actions that do interfere with
innocent others are, again prima facie, in the wrong, and not to be permitted”
[2002b, 40].
To be sure, something much closer to a libertarian society than we now have
would not put an end to the use of force and coercion. As Narveson further points
out, libertarianism, perhaps contrary to first impressions, is “in essence a theory
about the use of force” [1988, 50]. Or as Freeman observes: “libertarians do not
condemn all coercion or aggression, or hold that no one can be forced to act in
ways she has not chosen to. Libertarians clearly endorse the coercive enforcement
of personal and property rights and contractual agreements” [2001, 124]. Well,
indeed they do, but in doing so they are merely enforcing rights that have been
long held to exist at common law. We should also not lose sight of the fact that
most people have been brought up to respect those rights and generally manage
to avoid harming others. Thus, as Rothbard remarks, even in a large city like
New York, one does not depend on police protection but “solely on the normal
peacefulness and good will of his fellow citizens” [1978, 201].
89
In reply to Hume’s question as to why we should abridge our native freedom,
we might reply with Narveson that we do so in order to protect the liberty of
everybody else; moreover, “a universal right to unlimited liberty is nonsense”[ibid.].
However, ensuring observance of something like Mill’s no harm principle is not the
same as issuing a blank cheque for government, as Hume seems to think. We
have suggested that most of the work can readily be accomplished by ourselves,
developing spontaneous conventions over time, without the troops who are rarely
there when needed anyway. One such example is queuing, where the overwhelming
majority of people observe the first come first served rule. While the uncommon
ignoramus who tries to butt in may fly below the radar of official peacekeepers, who
are doubtless busy attending to more important matters, he may well have various
forms of opprobrium heaped upon his head for his failure to conform.
So Hume is wrong to think that the only thing keeping us from “disorder or
iniquity” is government. Moreover, the same private arrangements by which “two
neighbours may agree to drain a meadow, which they possess in common,” may
also permit of projects on a vast scale where “bridges are built; harbours open’d;
ramparts rais’d; canals form’d; fleets equip’d etc.” However, Hume persists in
believing that such endeavours involving casts of thousands are somehow “by the
care of government” exempted “in some measure” from the usual human frailties.
Perhaps if he could have witnessed the endless record of government failure noted
earlier, the failure of flood control and subsequent response in New Orleans being
one of the more recent examples, he might have realized that government was in
no measure‘”exempted from all these infirmities” [1960, 539]. On the contrary,
Hume seems convinced that “political society” provides remedies for the difficulty
of coordinating large numbers of people on a solution and for the tendency of
some individuals to avoid “the trouble and expence” and “lay the whole burden on
others” The magistrates can push the project which they believe favoured by “any
considerable part of their subjects,” and, unlike most of us, “need consult nobody
but themselves to form any scheme for the promoting of that interest” [ibid.,539539]. But as Jasay has argued, as long as we can contract into Pareto-superior
solutions to a cooperative game, and as long there are benefits which outweigh the
costs, it is not clear “why coercive arrangements requiring the maintenance of a
state are expected to be, all in all, less costly and more efficient than voluntary
ones. Whichever way we turn the various supports that have been provided for the
body of theories that explain why it is rational to have the state, only the problem
of keeping promises is crucial and indispensable” [1997,13].
Hume’s claim that bridges might not be built nor harbours opened etc has continued to be a popular argument for the political provision of so-called public or
collective goods. However, as Rothbard has observed, even if there are collective
goods, they do not have to be supplied by one agent, typically government, nor
should all be coerced into paying for them. Indeed he considers the notion of collective goods “highly dubious” since only individuals exist and have preferences. In
the case of so-called public defence, for example, not all inhabitants of a particular
area require either protection, or the same level of it [2001,883-884]In fact there
90
is a complex variety of levels of protection, determined by factors such as available manpower [1978,215-216]. According to Rothbard, the main question raised
by putative collective goods is whether everybody can be forced to pay for a good
which he may not even want; the pacifist, for example, may have as little use for
police protection as a Jehovah’s Witness for the Canadian Blood Service. As Seldon remarks, governments fail to understand that collective charging for individual
benefits is resented by non-beneficiaries [2002, 30].
For Rothbard, the collective goods argument turns out, on analysis, to reduce
to the external benefit argument [2001, 884]. While individuals may be left to their
own devices to benefit one another, positive or negative externalities which spill
over onto others are often held to constitute grounds for government intervention.
Rothbard claims that criticisms leveled against externalities are typically of two
varieties: first that A is not doing enough for B, and second that B is free-riding
on A: “Either way, the call is for remedial state action; on the one hand, to use
violence in order to force or induce A to act more in ways which will aid B; on the
other to force B to pay A for his gift” [ibid., 886-887]. However, Rothbard rightly
rejects the view that the state is in any position to remedy such transactions, which
are optimal in the sense that any free market transactions are, namely that they
are freely expressed consumer preferences, which means that: “Government interference, therefore, will necessarily and always move away from such an optimum”
[ibid., 887]When government does interfere and compel public provision of goods
to remedy such supposed market failures, as Rothbard noted, for example, with
respect to the mix of services offered by publicly supported police, government
spending is “subject to the full play of politics, boondoggling, and bureaucratic
inefficiency, with no indication at all as to whether the police department is serving the consumers in a way responsive to their desires or whether it is doing so
efficiently” [1978, 216].
Similarly, Jasay has argued that it is often simply assumed that non-excludability
or the inability to prevent free-riders is sufficient justification for a good to be supplied by government. Hayek thought that the only question to be asked about the
government’s undertaking to supply such goods was whether the benefits exceeded
the cost [1978, 222]. If indeed this is the only question, as Jasay comments, it is a
large one. Moreover, it is far from clear how to answer it;it is certainly problematical whether we should take the outcomes of politics as revealing society’s true
preferences [2002, 23]. Part of the answer to Hayek’s question as to whether or not
a good is a benefit will depend on which side of the winning political coalition an
individual is on. The winning side will skew the “product-mix” in its own favour
and against the losing side, with the result that the redistributive bag of goods is
likely to be seen as beneficial by the winners and not worth the candle by the losers.
Jasay further notes the tendency to over-provide public goods, with users having
no incentive to economize, as one typically finds in what are thought to be public
goods par excellence, namely health-care and education [ibid.,24].
With respect to overconsumption of health care, Gratzer reports that under
state provided systems patients see doctors more often and demand more tests and
91
specialized services [1999, 131]. Not that overconsumption is entirely the fault of
the consumer. High demand ensures that doctors do not have to compete and face
the prospect of lower earnings [ibid., 133]. Although greater accessibility is often
advanced as one of the justifications for supposed public goods, with respect to
publicly provided health care, such as the National Health Service, Seldon comments that they are often under-provided as well, with the result that “for many
people with the lowest incomes it has not been available when, where, or how it
was wanted. The evidence of history is that it would have been available in all
three respects if the government of democracy had allowed it to continue as private
medicine from the very beginning” [2002, 71].
In Canada the failure of central health care planning results in rationing in
the form of resource shortages and lengthy queuing for treatment, with politicians
grand-standing about their refusal to seek readily available private solutions. The
Canadian Institute for Health Information reports the average waiting time for
knee replacements in Ontario to be around 9 months from decision to treat to
surgery. CIHI reports further that this post decision waiting time only accounts
for about 60% of the total; the other 40% will be taken up with the wait from
initial referral to decision to treat [2006, 19]. As for other wait times, of 5 countries
surveyed, Canada had the highest percentage of adults who had to wait longer than
2 hours for treatment in an emergency department, and in both Canada and the
UK respondents were more likely to have experienced longer waits for specialists
than in other countries surveyed. In general CIHI concludes that the main problem
seems to be the wait for an appointment in the first place [ibid., 16-17].58
With respect to public education, at least in Britain, Seldon holds that the
only solution to poor quality public schools would be to allow parents to send their
children to schools of their own choice [ibid., 73]. In a recent research Note, the
Montreal Economic Institute has observed similar problems in various advanced
countries involving waste, bureaucracy, slow reaction to changing labour demands
and hostility to efficiency assessment. They believe that competition and decentralization are essential to improving service [2007, 4]. For Rothbard the basic
fault of public education is that, like much else under the aegis of the state, it is
compulsory. As West also comments: “it is remarkable how readily most democratic governments, especially most republican governments, have, within the last
century, resorted to the general use of police power in education” [1994, 334]. Rothbard thought that forcing children into classrooms was unjust, both to the dull as
well as to the bright, to say nothing of the parents who should have the responsibility for educating their own children, especially in the early years. The Prussian
58
The Canadian system is typically contrasted with that in the US,which is often mistakenly
thought to be a free market system:cf.Gratzer[2002,193]. But despite their differences, US shortcomings seem little different from those of Canada, namely “too much government, too much
bureaucracy, and too many regulations and mandates”: cf. Sally Pipes [2004,137]. With respect
to the US system Salerno also notes that “the irrational and labyrinthine structure of regulations
and prohibitions imposed by government on the industry has massively distorted resource allocation, restricted supply, and further driven up the costs of medical care” [Postscript to Mises
[1990,69].
92
model of compulsory education was quite influential in the US, and Rothbard considers it much to the discredit of compulsory state education that the Nazi regime
seized upon the institutional structures laid down by Imperial Germany to further
its own totalitarian objectives [1999, 34-35]. Rothbard also considers the fact that
teachers are civil servants to be a source of “tyranny and absolutism” in the schools
[ibid., 48-49].
In addition to being part of the long arm of government by being civil servants,
teachers also typically belong to powerful unions, as Lieberman points out, which
“try to eliminate wage competition, restrict entry to the occupation, increase the demand for services provided by union members, and weaken rival service providers”
[2000,30]. Not surprisingly, Lieberman finds that such powerful producer unions
with large funds at their disposal will continue to stand in the way of parents seeking
something better for their children [ibid., 282]Indeed,Rothbard argued that compulsory public education was on a par with compelling everyone to read newspapers
put out by a national chain supported by the state[ibid.,17-18]. Moreover, he is
a vigorous critic of the Rousseau-Pestalozzi-Dewey doctrine which has held sway
during the past century in American education, the net effect of which he believes
is to destroy any independent thinking in children. In the name of equality, grading is often made relative to the child’s supposed abilities, which Rothbard argues
does justice neither to the bright nor to the dull [ibid., 54]. Such “dumbing-down”
of schooling might have been avoided, if the so-called progressives had drawn the
appropriate conclusion and abandoned compulsory education for all. However, the
belief that children should be prepared for democracy is the source of yet another
hazard, namely the suppression of individuality in the interests of group solidarity
[ibid.].
More than a generation ago Milton Friedman, who favoured some minimum of
education for all, but thought there were no grounds for the nationalization of the
education industry, famously proposed his voucher system as a step towards providing greater freedom of choice in schooling, with government being restricted to
monitoring minimum standards [1962, 89]Lieberman notes that for various reasons
vouchers never caught on, among them no doubt the fact that the bureaucracy and
teacher unions saw them as a threat [ibid., 267]. With respect to the matter of
producer monopolies it is also worth noting that Friedman proposed an interesting
remedy which appears to have received even less attention than that of vouchers. He
argued that the medieval guild system was still with us in the form of occupational
licensure and that it was time we rediscovered the spirit of 19th century liberalism
according to which “men could pursue whatever trade or occupation they wished
without the by-your-leave of any governmental or quasi-governmental authority”
[ibid., 137]. Professions and trades have claimed that licensure is in the public
interest, a notion to which the state has typically appealed to expand its writ by
approving licensing authorities. While this may sound innocuous enough, Friedman
observes that the awarding of licences may often be based on considerations having
little to do with professional competence, but rather with the fashionable political
correctness of the day [ibid., 141].
93
One might be inclined to think that there is something of concern to the public
interest, when say in the case of barbers, most jurisdictions have passed licensing
regulations of one sort or another. In fact, according to Friedman, it has little to do
with supposed public interest but rather, as has been already noted, with the fact
that producers have a greater interest in matters affecting their trade and will devote
more time and energy lobbying on behalf of it than their consumers will [ibid.,143].
The social cost produced by such producer interest is that it becomes a mechanism
for that group to develop a monopoly, one which is in fact aided and abetted by
the state. What is especially interesting in Friedman’s case is that his analysis
not only applies to barbers but to the barber-surgeons, or latterly the medical
profession, where: “It is clear that licensure has been at the core of restriction of
entry and that this involves a heavy social cost, both to the individuals who want
to practice medicine but are prevented from doing so and to the public deprived of
the medical care it wants to buy and is prevented from buying” [ibid.,155]. As to
whether licensure, even in the case of medicine has been of any benefit, other than
adding to the monopoly powers of the profession and the licensing state, Friedman
concludes that it has simply been an obstacle to the beneficial practice of medicine
and should henceforth be abandoned [ibid.,158].59
However, despite serious medical manpower shortages, which according to CIHI,
result in Canada’s reporting the highest use of emergency departments, as well as
the longest wait times for such treatment [2006, 16]. Friedman’s solution is likely
to remain politically unpalatable,60 as is Rothbard’s concerning compulsory public
education. Although Friedman thought that governments might be responsible for
setting minimum standards in schools and schooling, we have argued that their
authority to do so is very much in question, and even if that matter could be
settled, schools themselves could monitor their own standards. Nor, as Rothbard
remarked, is it any help to have the state inspect private schools since this removes
their independence and also makes them creatures of the state [ibid.,16]. It is
therefore not surprising, that in the two areas where public provision has tended to
predominate, and, according to some, necessarily so, Seldon predicts that improving
incomes will enable increasing numbers of dissatisfied parents and patients escape
to private schooling and medicine [2002, 85].
With respect to the standard criteria which are thought to determine whether
or not a good is publicly, which is to say politically, supplied, Jasay argues that
they are not as straightforward as often assumed. In the case of exclusion costs, for
example, or the costs of protecting full property rights, these may range from the
fairly objective to the quite subjective: in the case of the former we a talking about a
good which could not be delivered profitably, and in the latter where political costs
59
Lest Friedman’s findings, confirmed around the same time by Arrow, be thought somewhat
dated, a more recent study by Svorny reaches similar conclusions, namely that states should
eliminate licensing because it adds nothing to safeguards provided by courts and markets, but if
anything reduces access to care and gives consumers a false sense of security [2008, 12]
60
Svorny is also aware that her recommendations might run into political difficulties, so she
suggests more gradual improvements in workforce flexibility by wider recognition of licenses and
attention to qualifications and scope of practice of non-MDs [ibid.]
94
might militate against its production [2002, 25]. In the case of the two principle
public goods we have been discussing, the main barriers to having them supplied
privately to a much greater extent would appear to be subjective costs, such as
electoral defeat, especially in the case of Canadian health care. Jasay also notes
that politicians cannot be counted on to properly assess exclusion costs, thus tilting
the balance in favour of public provision [ibid., 26]. One of the most famous examples of underestimating the case for private provision was that of the lighthouse,
which had long been seen as the paradigmatic non-excludable good. However, Mill
and Sidgwick notwithstanding, Coase famously reported that lighthouses in England and Wales were successfully privately owned and operated, financed by tolls
collected by port agents [1988, 212-213].
Jasay notes further that it has often been assumed that the provision of public goods is best seen as a prisoners’ dilemma, where the best strategy is noncontribution. But if the benefits of a particular good are high enough the benefits
to be gained by contributing, regardless of what others do, may well exceed the
cost. If this is the case we are no longer dealing with a prisoners’ dilemma where
default or non-contribution is the dominant strategy. While contributing may risk
providing a free-ride to non-contributors, not contributing also involves the risk that
others will do likewise and a valuable good will not be provided. People will no
doubt differ as to their assessment of the greater risk of the two, with the result that
we cannot rule out the private production of public goods, as in the case of Trinity
House,the private lighthouse agency, nor can we necessarily appeal to the prisoners’
dilemma as our reason for doing so. As Jasay concludes, public goods may well be
produced by voluntary cooperation, with the decision to adopt sucker or free-rider
roles being spontaneously assigned by individual risk assessment, rather than by
the government [ibid., 29].
3.4.2
The authoritative solution of prisoners’ dilemmas
Having questioned whether or not the provision of public goods is best interpreted
as some sort of prisoners’ dilemma from which we need to be rescued by authoritative fiat, Jasay goes on to examine the extent to which the authority of the state
can be thought to rest upon the existence of prisoners’ dilemmas of one sort or
another. In general he notes that strong consent to the state rests on the belief
that: “alternatives to the state are held to be unthinkable, contradicting as they
are understood to do, the iron logic of the non-cooperative “game” that in manifold social interactions, corrupts human conduct, the prisoners’ dilemma” [ibid.,
31]. We might resort to virtue to produce the necessary commitments but, as the
tale goes, virtue cannot be relied upon since it may be in short supply in large
anonymous social groups. Thus Heath writes: “Every exchange is facilitated by
either an implicit or an explicit promise to pay. And it is always in one’s interest
to make such a promise. At the same time it is almost never in one’s interest to
actually keep such a promise” [2001, 52]. Since according to the traditional story
95
virtue cannot be uniformly counted upon to deliver the goods, prudence dictates a
state to deliver us from our prisoners’ dilemmas.
Jasay thinks that two sorts of challenges are possible. With respect to the
logic of the dilemma we can ask whether it does mean what it really seems and
is widely thought to mean. Secondly we can ask what the dilemma is relevant
to, that is, whether “any important social interactions really resemble it” The
first sort of challenge involves denying that the PD, hooked up to a maximization
assumption, does in fact imply a dominant default strategy. Gauthier, for example,
proposes that the interest of both players requires that we adopt constrained rather
than straightforward maximization, which will improve the game sum as well as
individual payoffs. This supposedly has the result, pace Heath, that performance
by one player will result in performance by the other, since “those not disposed to
fair co-operation do not enjoy the benefits of any co-operation, thus making their
unfairness costly to themselves, and so irrational” [1987, 179].
In Jasay’s view such an attempt to avoid the inexorable logic of the PD is
subject to the objection that constrained maximization appears to require us to
ignore the dictates of rationality, since as he puts it, “No disposition to deviate
from rationality can be rational” [ibid., 35]. Constrained maximization, he argues,
would only make sense if we could assume “mutual clairvoyance” on the part of
the players; only thus could we transform PP into an equilibrium and break the
dominance of DD. However, to assume that both players could read one another’s
minds well enough to make PP dominant is simply change it from a prisoners’
dilemma to a cooperative game by making commitments credible [ibid., 36]. Even
if we are stuck with the “grim logic” of the one shot PD where mutual default is the
Nash equilibrium, one may legitimately ask whether that really matters and how
often we are likely to get one shot PDs in a social setting. Indeed, Jasay responds
that they are the exception rather than the rule [ibid.].
Such an exceptional case might arise if at least two conditions are met, namely
independence and irrelevance. If independence obtains, then whatever the player
plays in the present game will have no effect on how a future partner might play.
On the other hand, Jasay argues that one may run the risk of a sanction in the
form of banishment from future games, which will make the defaulter aware of his
foregone gains-something even below the security payoff of DD- thus switching on
“the well-known Folk Theorem, by which the mutual performance strategy is an
equilibrium, as is every other mutual strategy (if such exists) that lifts the present
value of both players’ payoffs above the security level” [ibid., 37-38].
If we transfer this theorem to the social situation where there are many potential players, “budget constraints” of one sort or another will send us in search of
the best games, namely those which offer payoffs above the security level. This in
turn amounts to finding the best partners to play with, such as employers, customers, spouses, and to accomplish that goal we need to build a reputation as a
reliable player. According to the independence condition, in the transition from
Gemeinschaft to Gesellschaft the Folk Theorem does not get switched on, with the
96
result that: “one can default with relative impunity, collecting the free-rider payoff
without thereby having any influence on the strategies others will choose in future
games where he participates-if indeed he is given a chance to participate at all”
[ibid., 40].
Whereas the independence condition claims that the present casts no shadow
over the future, under the irrelevance condition “the future is irrelevant if it casts no
shadow over the present” One such case would be where a player knows this is the
last game and will therefore play it as a one shot game. Similarly situated are the
fly by night operators, transient tourists and “the somewhat sad case of the Man
Without Qualities and of no substance.” The latter has so little to offer that the
most he can get from other players is a poorly paid casual employment. Although
there are such irrelevance-of-the-future cases, Jasay does not think that they would
provide good grounds for an individual to consent to “the state as ultimate enforcer
of formal or informal commitments” [ibid.,41].
As to whether independence-of-the-future offers greater promise as grounds for
strong consent to the enforcer state depends on the strength of what Jasay calls the
anonymity argument: “If anonymous players are not identified with the strategies
they employ, their future payoffs may well be independent of their present conduct:
they can default with impunity, and being rational, they will” [ibid.]. However, the
anonymity argument is, as it turns out, false, and this has to do with the fact that
in a PD “performance” can only be met by “default” if either the players’ strategies
are hidden from each other, or the game is sequential. Simultaneous performance,
coupled with at least partial transparency will produce either of two symmetrical
solutions, that is, PP or DD, since “as much as I should love to default while
you performed, you will not perform if you do not see me perform too” [ibid.].
Simultaneous performance in fact turns it from a PD into an assurance game,
whose real life analogue is the spot exchange or cash transaction. While it does
admit of anonymity, there is no free-ride option, nor will it help get a “contract
enforcing authority” off the ground, since the game is cooperative and the contract
self-enforcing [ibid., 42].
On the other hand sequential, non-simultaneous play does not support anonymous social interaction. As in a credit transaction the performance of the first player
precedes that of the second. But the first is unlikely to advance goods on credit
to an anonymous individual. Thus, as Jasay puts it, “Anonymity is tolerated by
simultaneous, but is inconsistent with sequential, play, which, unsurprisingly, spoils
much of the charm of the default strategy” [ibid.]. Hobbes’s Foole discovers that
even if there is no such thing as justice to enforce the keeping of covenants, there
are still considerations of prudence or expediency. If he breaches his covenant, the
only person likely to play with him is another fool, but as Jasay reminds us: “Foolishness is surely an inadequate source from which to draw the imperative need for
an enforcer of covenants” [ibid., 43].
However, Heath is convinced that without the enforcer we will end up with
outcome 3 in his schema, or DD, where he fails to deliver and you fail to pay.That
97
is, our natural propensity to truck and barter, of which Adam Smith so fondly
spoke, will be undermined by our tendency to free-ride. In reply of course we
can simply remind Heath that truck and barter long preceded the state, as noted
earlier in this chapter, and continues under private dispensation even today, much
to the chagrin of people like Cutler. Indeed it was noted in the aftermath of 9/11
that following the money trail was made very difficult by similar private customary
arrangements in Islamic countries. Heath’s predictions notwithstanding, we are not
confined to simultaneous exchange and much touted globalization would not have
occurred if we were.
Heath claims further that therefore “economic exchange, when it does occur,
must involve more than just self-interest; it must also involve some form of moral
or legal constraint” No doubt it must, in the sense that “some form of moral or
legal constraint” is in our interest. After all Gauthier thought that it was in our
interest to constrain our maximizing tendencies, and Jasay thought the Foole might
at least be prudent, if not moral. Besides, as Foot reminds us, prudence has its
place under the tent of practical rationality [2001, 13]. If “legal constraint” is
also necessary, we suggested that we do not need Hume’s “vast apparatus of our
government” to produce it, but that firmer rules may evolve as did the common
law or the Law Merchant. As Hasnas notes, for most people law is co-extensive
with the state, whereas in fact there are many examples of law which the state
has not produced such as bargaining and mediation, or institutional management.
The common phrase “law and order” implies that the two necessarily go together.
However, as Hasnas further explains, law is one method of producing the order we
need for a harmonious existence, though in its present incarnation it tends to be
rules generated by the state [2007, 184; 186].
However, Heath does think that the only way of getting ourselves out of the
prisoner’s dilemmas into which our self interest has led us is by handing over some
of our freedom to the state and living under its rules: “Freedom is good when some
of its consequences are good. When the consequences of freedom are not good,
then people are better off without some of that freedom” Heath assumes that the
state will somehow know what has escaped the rest of us, that is, which of the
consequences of freedom are good, and which bits of freedom we are better off
without. Again, there is little need to stand in line at some state bureaucracy in
the hope of getting an answer which is readily at hand, namely Pareto’s idea that
something constitutes an improvement if it makes at least one person better off
than she was, and no one worse off than he was.
Heath claims that following Hobbes the “rules and institutions of society” are
designed to ward off the effects of our exercising our natural liberty, including the
free-riding which “undermines all forms of economic and social cooperation” [ibid.,
53]. But as we have argued, the rules and institutions of society are many and
varied, and extend well beyond those produced by the magistrates. To the extent
that free-riding is a problem, it tends to be a self-limiting ailment, and one largely
managed without the ministrations of the state. The Pareto principle or Mill’s no
harm principle would certainly qualify as examples of the rules of society, and as
98
moral principles most people are quite capable of putting them into practice to
produce the order without which life would be even more nasty, brutish and short
than it is. Though as Jasay noted, there is something peculiar about saying that
one prefers the state to the state of nature in much the same way as one might
prefer familiar objects such as tea or coffee, since most of us have only lived under
states which by definition preclude any direct experience of the state of nature
[1998,19]Binmore makes the further point that the social contract theorist not only
needs to show how the social game differs from the state of nature game, but why
the players would feel committed to the rules of the new game [1995,118].
As we saw, considerations of prudence would dictate that even the Foole should
keep his agreements, lest he be confined to playing with fools such as himself in
future games. While this lesson may have been lost on the Volk, according to
Jasay, “the bowdlerized War of All Against All” does seem to have remained in
the public consciousness, with the result that: “The theory of the state, with a
strong consent to authority, continues to be reproduced on the basis of a prisoners’
dilemma whose social significance appears to shrink remarkably under an analytical
stare” [ibid., 43]. Though Heath is one of those who leverages his theory of the
state on the dubious significance of the prisoner’s dilemma, he admits that in his
view a prisoner’s dilemma is a one-shot game. However, as Jasay notes, it is on
the contrary “a single instance of a chain, or network, of repeated games, whose
relevant payoffs turn out to be the present values of the future payoff-streams that
the player expects to earn, thanks to, or despite, his choice of present strategy”
[ibid.].
Heath however is not consoled by the thought that there might be a series of
games, since this might just mean that people get stuck in one prisoners’ dilemma
after another [ibid., 55]. However, Binmore, like Jasay, believes that the prisoners’
dilemma does not correctly map the way societies produce cooperative solutions
and is thus not troubled by the fact that cooperation is impossible in a one shot
game.Moreover he holds that repeated games are strategically quite different because time permits players to take into consideration opponents’ past behaviour
[ibid., 114,115]. Heath insists that once people get stuck in repeated prisoners’
dilemmas, they typically go from bad to worse or what he calls a “race to the bottom” [ibid.]. However, although it sounds rather dramatic, it simply isn’t clear in
what sense the outcome supposedly gets worse and worse. The Nash equilibrium of
a prisoners’ dilemma is DD, or as Binmore prefers to call it (hawk,hawk), which is
not to say that there is no solution which would be a Pareto improvement, such as
PP, (dove, dove) which has a higher payoff than DD. If a series of Pareto inefficient
outcomes strikes Heath as somewhat worrisome, Binmore does not find it problematic that rational individuals can make choices which produce such outcomes, since
“The rules of the Prisoners’ Dilemma create an environment that is inimical for
rational cooperation and, just as one cannot reasonably expect someone to juggle
successfully with his hands tied behind his back, so one cannot expect rational
agents to succeed in cooperating when constrained by the rules of the Prisoners’
Dilemma” [ibid., 103].
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It seems as though Heath has committed what Binmore regards as the mistake
of arguing that because rational individuals sometimes fail to keep their promises,
they can never be counted on to do so. Moreover he thinks that the fact that
we find the prisoners’ dilemma somewhat bleak is indicative of the importance we
attach to developing a reputation for keeping promises as illustrated in a quote
from a New York merchant: “Sure I trust him. You know the ones to trust in this
business. The ones who betray you, bye-bye” [ibid., 112]. Jasay also emphasizes
the importance of reputation in becoming a desirable partner and enlarging the
pool of future partners. Reputation is not just one of mechanical reliablity but
that “B believes that what keeps A honest is his justified calculation that honesty
is the best policy” [ibid., 38-39]. In fact, Heath should heed Binmore’s admonition
that “the Prisoners’ Dilemma is not the right game to be studying” and that there
is no point in continuing to defend one’s position by analysing the wrong game
[ibid., 114]. Indeed, as Binmore reminds us much later in his work, “for indefinitely
repeated games, the folk theorem tells us that we do not need to rely on anything
but the enlightened self-interest of sufficiently forward-looking players to maintain
the full panoply of cooperative possibilities” [2002, 293].
3.4.3
The principal-agent problem
Having shown that the supposed existence of prisoners’ dilemmas does not provide
support for the authority of the state that Heath and others are inclined to think,
let us advert to a related issue, which Jasay argues contractarian statists have to
contend with, namely the principal-agent problem. Under such a view the principals
or parties to the social contract set up an agent state to manage the collective
choice mechanism provided for in the contract, as well as in some versions of the
theory, a sub-contract with the agent spelling out his fiduciary duties. However, as
Jasay notes, the fact that there is an agent to enforce collective decisions provides
incentives to free-ride on public enforcement. All manner of special interest groups
manage to get deals enforced from the public purse if for no other reason than that
the mere existence of the agent-state “sets up a “game” in which some principals
will, in an unstable solution, always form an alliance with the agent at the expense
of other principals” [ibid., 50- 51].
Not only is the agent-state the cause, rather than the cure of the most incorrigible free-rider problems, the prisoners’ dilemma, for which it was the much heralded
silver bullet, as Jasay puts it, now “comes back with a vengeance” wreaked upon
those who have not managed to form an alliance with the agent and lose out in the
great redistribution game. Although the typical contract is largely self-enforcing,
the social contract is not. Enforcement might in turn be contracted for, but that
contract will itself need enforcing, and so on into the afternoon, no doubt leading
Juvenal to famously ask: Quis custodiet ipsos custodes? Thus the only way out
of the infinite regress of enforcement dependence is to set up a cooperative game
where the contract is self enforcing. What we are not entitled to claim, according
to Jasay, is that although contracts or promises are incurably infected by the pris100
oners’ dilemma, the social contract itself manages to avoid contamination [ibid.,
52].
3.5
Summary.
Throughout this chapter we question the supposed need for authoritative solutions
to problems such as coordination, enforcement, and prisoners’ dilemmas of one
sort or another. As Edmundson agrees, the class of malum prohibitum laws, which
comprise the bulk of modern legislation, are a good test of the authority of the state,
which we contend is non-existent. While consent is now widely thought to offer
little hope for justifying the state’s authority, we also discuss other proposals such
as estoppel, fairness and associative obligations, which we find similarly wanting.
Although Raz thinks we should have no more difficulty accepting the authority
of the state than that of a doctor, we see no relevant similarities. Over the past
century the state has vastly increased the scope of problems thought to require
an authoritative solution, for which it imposes ever increasing taxes, supported
by coercive measures dressed up in the trappings of sovereignty. As for the public
goods which, it has been widely believed, can only be provided by the state, the two
classic cases of medical care and education exhibit all the disadvantages inherent
in central provision, such as both under and over-supply of a poor quality product.
Similarly, prisoners’ dilemmas, which have been thought to depend for their solution
on the heavy hand of the state, turn out on closer inspection to be iterated games,
where, to paraphrase Jasay, the future casts some solution over the present.
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Chapter 4
Democracy
We have thus weighed in the balance several of the more influential recent apologies
for the authority of the state and so far found them wanting. In this chapter we
shall address the question as to how democracy might or might not be a source of
the state’s authority, or as Dworkin aptly phrased it: “What can give anyone the
sort of authorized power over another that politics supposes governors have over
the governed? Why does the fact that a majority elects a particular regime, for
example, give that regime legitimate power over those who voted against it?” [1986,
191]. I have already answered the first of Dworkin’s questions, namely nothing, and
the short answer to the second is that it doesn’t, an answer I shall attempt to argue
for in the course of this chapter.
4.1
Singer on Democracy
In Democracy and Disobedience [1974], Peter Singer explores the question as to
whether the fact that a government is more democratic would lend greater moral
weight to claims that its decisions ought to be obeyed. While we shall refer to
several points that Singer makes in developing his view, we shall be less interested
in the sorts of obligations we might or might not have towards a putatively democratic order, even though Dworkin thought that his questions raised the problem
of the legitimacy of coercive power which in turn piggybacks on another, namely
political obligation [ibid.]Our concern will be rather, given what Singer has to say
about democracy, why anyone would think it had enough going for it as a way of
deciding anything to even be bothered putting a new spin on the old question about
political obligation. On the latter issue I would agree with Pateman that “Liberal
justifications for political obligation are now in tatters” [1979,194]. or with Simmons, who supports Baier’s view that the main question about political obligation
is whether there is any such thing [1979, 3].
The Byzantine workings of governing bodies at Oxford seem to have inspired
a number of interesting reflections on democratic decision making. For example,
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Black devotes the last chapter of his Theory of Committees and Elections to the
earlier work on elections of the famous 19th century Student of Christ Church, the
Rev. Charles Dodgson [aka. Lewis Carroll]. In a similar vein, Singer asks us to
contrast different ways of governing an institution within a college, in this case
a common room association. Of course he is not concerned with any particular
such association, many of which have doubtless existed, as it were, ab universitate
condita, and been governed more by tradition than written codes. As well as
having, like most governing bodies, considerably predated the advent of the present
generation of college members, they do have the virtue of being a much simpler
model of government to examine.
Singer thus asks us to consider three models of such associations. The first
apparently exemplifies the Führerprinzip, ruled as it is by a self-appointed leader
who according to oral history was installed in his present post by some sort of
coup. The leader avoided serious challenges to his authority by not only having
powerful allies within the association, but also by supposedly making good on his
promise to rule in the interests of all. Under the second model, decisions are made
in the interests of the members by that member, who according to tradition and
rule is most senior, and who apparently rules without any of the intimidation which
accompanied the accession to power of the first. Finally, in the third governance
model, decisions are taken along democratic lines, that is, by majority vote.
Singer then asks that we consider the case of a dissenting member who disagrees with the decision of the common room to subscribe to a newspaper which
he considers racist. When the dissenter sees that neither the leaders under the first
two models, nor the majority who carry the vote under the third are inclined to
change their views, he decides to take the law into his own hands and remove the
newspaper from the common room. The purpose of Singer’s thought experiment is
to explore the question as to whether there is something about the democratic way
in which decisions are taken under the third model which makes it harder to justify
the dissenter’s disobedience than in the first two models, where decisions are taken
by one man on behalf of the members. As Singer puts it, although the dissenter
flouts the customary decision procedure in each case, “If there is a special reason
(or reasons) for obeying laws in a democracy, we should be able to detect reasons
for obeying this rule of the association in the third case which do not hold in the
other two” [1974, 17].
One of the common responses from The Crito onwards to such acts of disobedience is to say that it is wrong to disobey, because even the dissenter has benefited
in some way from the organization he disobeys. As Socrates points out, the state
has nurtured us from before the time we arrived on this earth by regulating the
marriage of our parents and our subsequent education and upbringing [Plato,1953,
380]. However, Singer responds that just about any sort of state could make a similar claim on our allegiance. In the case of the governing body of the common room,
all three versions could claim to govern in the best interests of their members, a
claim which Singer thinks reasonable to take at face value. The question is whether
a democratic government of the sort envisaged by Singer’s third model, as opposed
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to the Athenian democracy which prevailed in Socrates’s time, is somehow more
deserving of our allegiance.
Singer outlines the views of other commentators since Plato who have sought
to ground our allegiance to the state on some supposedly relevant property of
democracy such as popular sovereignty or equality. Common to many of these
views is the claim that the legitimacy of popular government and of any obligations
allegedly incumbent upon its citizens is derived from some form of consent on the
part of the governed. The doctrine of consent as such goes back at least to The
Crito, where Socrates argues that if you do not agree with the way “the laws” order
your society, you may take your business elsewhere. But if you stay, you can be
considered to have accepted the deal offered by the state, and are not entitled to
ignore your obligations owed to it, even if doing so should result in your death, as
was the case with Socrates: “he who has experience of the manner in which we
order justice and administer the state, and still remains, has by so doing entered
into an implied contract that he will do as we command him” [ibid., 381].
As to the merits of Socrates’s take it or leave it principle, Nozick asks: “What
rationale yields the result that the person be permitted to emigrate, yet forbidden to
stay and opt out of the compulsory scheme of social provision?” [1974, 173]. With
respect to his third model, where members of the common room form a governing
committee with each member having an equal vote, Singer holds that its most
salient feature is that of fairness. By that he seems to mean that power is equally
divided with each person having only one vote. Such a franchise is supposed to
be fairer than, say, that proposed by Mill, who argued against extending the vote
to the illiterate or those on welfare rolls. On the other hand, those demonstrating
a superior education or station in life might have more than one vote in order to
avoid “too low a standard of political intelligence,” thus preserving “the educated
from the class legislation of the uneducated” [1958, 135,139]. Of course, Mill was
speaking of the national electorate, rather than an Oxford common room, which
by definition constitutes some sort of meritocracy.
We might still ask, however, in what respect the third model association is
fairer than the other two where one individual makes decisions on behalf of the
other members. While there may be grounds for questioning the method by which
the leader of the first association acceded to his position, it is not immediately
clear what is unfair about a rule which says that government of the association is
in the hands of the senior member, provided, one may imagine, that there is general
agreement about such a rule including the determination of seniority. Singer in fact
seems to admit that we may well be hard put to demonstrate by argument, and
may simply have to assume that the more democratic model of governance is fairer,
and that it therefore has a greater claim on our allegiance.
The question of fairness seems connected to that of legitimacy, though with
respect to the view that only popular governments can possess legitimate authority,
Singer observed that legitimacy can be notoriously difficult to agree upon. This
may have to do with Hare’s view that acknowledging a government as lawful is
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not to state any facts about it, [1967, 172] though Singer responds that even if we
agreed we should obey governments which are legitimate, “we would still have to
produce reasons for holding that certain forms of government are legitimate while
others are not,” [ibid., 23]. implying that this might be a rather tall order. Hare
himself suggests that to ascribe lawfulness to a government is simply to express one’s
allegiance to that government, which one does for moral, prudential or political
reasons, rather than legal ones. In declaring such allegiance, I agree to treat its
laws as binding, and like Socrates, will not complain if I end up in prison [ibid.,
168-169].
Actually Singer does attempt to clarify the sense in which the third model
association is fairer. It no doubt stops short of being fair in any absolute sense,
if indeed there is any such sense of fairness. Rather it is fair in the sense that a
compromise is fair, given the circumstances, as when we are forced to draw lots to
decide some outcome. A particular compromise might be less than fair, because it
results in someone doing more than her fair share, as in Singer’s case of the woman
tending her baby every week night, while the husband only does so on the weekends.
Of course, it may be that even this case is not as unfair as first appears. There
may be all sorts of reasons why in any given situation domestic chores are divided
the way they are, having possibly to do with other work, domestic and otherwise,
performed by each spouse according to their respective aptitudes. Indeed it may
well turn out to be an instance of that famous principle of fairness: “From each
according to his abilities, to each according to his needs”
Again, Singer emphasizes that the particular feature of the third association,
which supposedly makes it harder to justify disobedience is that it is founded on
a fair compromise. Moreover, he argues, the democratic alternative, where each
member has an equal say in decisions, is preferable, for example, to Malatesta’s
anarchism, whose solution to the impossibility of ever getting any agreement as to
who is going to run the show is not to bother having a show to run in the first place.
Further, with respect to Mill’s meritocracy, Singer believes that it is not so much
a question of its being unfair, but rather imprudent, because it could prove to be a
hard sell, especially to the uneducated. Indeed there is a sense in which, attempting
to fine-tune voting along Mill’s lines, amounts to pursuing an unattainable level of
fairness, the net result of which will be much political unhappiness. In that case
the compromise represented by “one man,one vote” would be preferable [ibid., 35].
Another reason why the third association is held to represent something of a fair
compromise is because “it gives no advantage to any of the parties to a dispute and
is therefore preferable to the fight to the finish that would otherwise ensue” [ibid.].
Again, it is not clear why this is necessarily superior to the second association,
where the decisions are made by the senior member, and where the basis for his
right to decide, which may pass on to others who in their turn qualify for election
by seniority, is understood and accepted as appropriate. Political differences will
arise, and the decision procedure may have little to do with heading off an all out
brawl. During a difficult period before World War I Gilbert reports that Churchill
apparently did not think that “one man one vote” would be sufficient to bridge
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the great political differences of the day and set up a regular dinner club where
members of the government and opposition could meet and settle their differences
more amicably [2006, 48].
In fact, as many have pointed out, there is often little satisfaction to be had from
being able to cast a vote, which led Churchill, for example, to seek other ways of
exploring political differences. For example, voting is known to generate paradoxes,
such as explained by Narveson, where three different voters assign different ranks
to three alternatives with the result that no clear majority results [2008, 123]. One
solution to this sort of problem is to hold some sort of backroom gathering, no
doubt reminiscent of Churchill’s Other Club where perhaps, as Narveson further
suggests those having more influence than the “one man one vote” principle might
suggest will cajole or bully a solution out of those with less influence [ibid.].
Another mechanism for managing democracy, as Mr Putin would no doubt
call it, is vote trading or logrolling which is often thought to be morally wrong
because it distorts the legislator’s true preferences, but as Tullock observes most
people know it is what goes on in the back-rooms that counts, since “the art of
legislation involves bargaining, haggling, and efforts made to sweeten deals” [2002,
30]. Nor, as Tullock reminds us, is logrolling confined to the US; some of Churchill’s
political heirs under Mrs Thatcher had to support policies they didn’t like in order
to receive party support for those they did. Indeed, according to Tullock, logrolling
is as widely used as it is morally condemned by the public [ibid., 79].
Thus when one considers the wide array of human institutions with which one
has dealings, not only does it seem that one rarely negotiates on equal terms in
the way that Singer’s fair compromise recommends, but it is also unclear why
that would necessarily be a desirable state of affairs. An airline captain could be
bound to follow the democratic wishes of his passengers, or for that matter draw
lots, which Singer thinks is the fairest decision method, but it is far from obvious
that to do so would be either practicable or sensible. If members of the second
association become dissatisfied with some aspect of rule by the senior member,
perhaps because it had led to a declining quality of decisions by people who had
stayed on past their prime, then they might be motivated to explore alternative
models of governance, one of which might be Singer’s “one man one vote.” But
it still isn’t clear why any such alternative is fairer than its predecessor, or why it
is easier to justify disobeying the rulings of the senior member, as opposed to the
majority of members in a democratic body.
Nor is it apparently sufficient for Singer that a voting structure such as that
of the third association represent what he considers a fair compromise. Not only
must we have fair or equal opportunity for participation but we must guarantee fair
outcomes as well. Minority groups within the association must not feel that they
get the short end of the stick. For example, Singer asks us to consider the case of
a common room consisting mostly of white members and a handful of non-whites.
Because a majority carries the day we have at least in theory the possibility of a
vote splitting along racial lines, with little that the non-whites could do about it
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since they are in a minority. Thus in addition to the decision procedure being a
fair compromise, there must be “no tendency or general pattern of decisions which
are unfair to a particular group” [ibid., 43].
Perhaps it is worth recalling at this point that the dissenter, whose grounds for
expressing his dissent in the way he did are supposedly diminished under a democratic dispensation, was a minority of one, who disagreed with the common room’s
decision to subscribe to a newspaper, which he claimed was prejudiced against the
black minority [ibid., 15]. If neither the dissenter, nor those who voted against him
on the newspaper issue, were to change their minds, then it is conceivable that he
would continue to be a minority of one every time this or some related matter came
to a vote, in which case he might well feel unfairly treated as a result of repeatedly
losing.
Thus, even if we could make any sense of what a fair compromise amounts to in
the first place, it is far from clear what is involved in adjudicating the fairness or
otherwise of a pattern of decisions, as Singer thinks we need to do to ensure that
what began as fair remains so. Voter paradoxes and logrolling seem to be part and
parcel of various democratic arrangements, but does that mean they count as fair
compromises, even though one of them has often been considered immoral? Who
is to decide whether or not there is, as so often claimed, some systemic unfairness,
such as voter paradoxes, or discrimination? What would it be like for a particular
claim of unfairness on the part of the dissenter or some other minority to be thought
to have merit, or not, as the case may be? If that too is decided by majority vote,
then the dissenter could lose again, and for all we know, deservedly so.
Singer admits that in in any large society, there will groups who allege unfair
treatment, a matter which will need to be adjudicated in each case. But this in
turn raises the question as to whose judgment will count, that of the minority complainant or the majority. The reason we cannot leave it to the majority, supposedly,
is that this would make the majority judge in its own cause [ibid., 44], so the cards
have to be stacked in favour of the complainant, and we may just have to hope there
aren’t too many wrong decisions. Of course, it is far from obvious why this solution
doesn’t just as easily fall afoul of the same principle of natural justice: nemo iudex
in causa sua, especially when we take account of Dahl’s observation that minorities
more often threaten majorities than the reverse [1985, 27]. Thus on the one hand
Singer thinks there is no solution to claims about overall unfairness,yet any there
are ought to be resolved in favour of the complainant, if for no other reason that
we might face endless disobedience on the part of those who consider themselves
wronged. This again reminds us of Mill’s prudential worries about a restricted franchise, or Binmore, who is one of those who favours conservative reforms because
they are less likely to destabilize society, though we need to be on our guard, since
our present standard of living depends on “society’s currently dominant but precarious system of conventions” [1995, 4-5]. However, Mises reminds us that from
the social instability of the 18th century, for example, resulting from a surplus of
people on the land, modern capitalism arose. Thus from the efforts of some of
the social outcasts of the day to provide work for themselves, industries arose to
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produce goods for the masses rather than luxuries for the few [2000, 3].
As for Singer’s view that considerations of prudence might suggest we favour
minorities, adjudicators specializing in complaints from those who claim to have
been dealt poor hands in the great crap game of life have been known on occasion
to find against a minority complainant. The Ontario Human Rights Commission
in recent years dismissed the complaints of a physics professor at the University of
Toronto that he had been unfairly passed over for a permanent post, though it took
some 6 years to reach that finding. Fairness seems never to have quite recovered
from the popular wisdom that it largely exists in the eye of the beholder. Perhaps
it is not a robust enough notion to carry the increased load which Singer places
upon it. Although we might be able to get a rough idea of the sense in which ‘one
man one vote’ might be said to be fair, for example in the sense, as Narveson puts
it, of “equality of fundamental political power” [2008, 53], it is not clear why the
dissenter can claim that the outcomes of supposedly fair voting must meet evermore
stringent tests of fairness.
4.1.1
Voting as quasi-consent.
Assuming for the present that Singer’s enthusiasm for fairness has not got the better of him, and that we can coherently talk of some sort of fair decision procedure
as being characteristic of his third model, let us then see how Singer thinks participation might be relevant to the justification of disobedience. If we participate
in the decision making of something like the third model association, we cannot
when it suits us pretend we haven’t done so, ignoring votes that may go against us,
as the dissenter claims to do. Following Socrates, obedience is seen to be required
in exchange for the benefits conferred by “the laws.” Moreover, Singer proposes
fine-tuning the doctrine of consent, the traditional source of duties of obedience,
along the lines of what he calls “quasi consent” to distinguish it from Locke’s “tacit
consent,” which he thought we could be presumed to have given to the government
of that dominion where we enjoyed life or property [1960, 347-348].
As far as the theory of tacit or unexpressed consent goes, there seems little
reason to think that it may be any more promising as a ground of obligation than
express consent, about which Simmons noted that: “The paucity of express consentors is painfully apparent” As for tacit consent, Simmons concludes that it “must
meet the same fate as express consent concerning its suitability as a ground of
political obligation. For it seems that very few of us have tacitly consented to the
government’s authority” [1979, 79, 93]. The question is whether Singer’s notion of
quasi consent is different enough from its predecessors to escape a similar fate. As
an example of this quasi, or “as if there were” consent, Singer asks us to consider
the case where we participate in a drinking party, with each round being bought by
one of the participants in turn. When it is your turn, you would be rightly thought
to have acted badly, if you simply got up and walked away. You are not bound
by any consent, acknowledged to the group or yourself, yet by participating in the
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ritual you may incur an obligation, which you cannot reject on the grounds that
you never consented [ibid., 49].
Similarly, the dissenter by participating in the decision process incurs a quasi
obligation to abide by the majority decision, and one cannot after the fact walk
away from the process and pretend that one had never participated. Indeed, the
only way one can act as if one had no obligation is to declare at the outset that one
has no intention of reciprocating [ibid.]. Similarly in the political context, one can
be presumed to have consented if one participates in the voting ritual, and doesn’t
declare that this does not signal consent [ibid., 51]. Further, Singer believes that
the legal doctrine of estoppel can help clarify the way in which quasi consent can
give rise to obligations. Estoppel is akin to a promise, and thus one is estopped
from denying that one consented: “The effect of this doctrine is to prevent someone
denying something which, by his voluntary behaviour, he led another reasonably
to believe” [ibid.].
With respect to the notion of estoppel, Green agrees that it could explain the
way in which, for example, by my sitting in a restaurant and ordering a meal, I
can reasonably be held to have consented to pay the price shown on the menu,
although I have not explicitly promised to do so, and may have no intention of
doing so. Or as Jasay puts it: “This is tantamount to a credit transaction, in legal
parlance a (partly) executory contract” [2002,42]. While Green agrees that estoppel
might help explain obligations under this sort of forward contract, thus providing
an account of one type of consent, he is less sure that it could be appealed to to
justify a duty to obey the state [1988, 164]. Singer cites Lord Birkenhead’s opinion,
to the effect that estoppel addresses the harm that B may suffer as the result of
his believing that a certain state of affairs existed as the result of A’s words and
conduct. However, according to Green, democratic theory assumes that the state
is not there to serve its own interests but rather those of its citizens [ibid.]. Or,
as Jasay put it, the state is not a party to the contract but rather an agent of the
principals who contracted with it to serve their interests; though as we saw above,
the state seems to have enormous discretion for an agent under contract, acting
more often like one of the parties, and the dominant party at that [ibid.,50-51].
Green thus rightly denies Singer’s appeal to estoppel, since, unlike the restaurant
situation, people vote without relying on the compliance of others, so there is no
reason to think that voting should be taken as a sign of consent to or acceptance
of the state’s authority [ibid., 172].
On the other hand, Plamenatz has also upheld the view that voting is tantamount to consenting where one hands over authority to those elected [1968, 170].
Simmons, however, does not think it reasonable to see voting as an act of consent
to the authority of the successful candidate. Rather he thinks that most people
are unaware of what voting supposedly commits them to. Indeed, Simmons goes
on to argue that to the extent that voting is seen as a duty, so much so that some
states make it compulsory, the duties of citizenship must be on a different footing
from any consent involved voting [1993, 224]. This divorce of political obligation
from voting is further underscored by the fact that the state does not consider our
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political obligations to be contingent upon whether we have voted or not. Thus
Simmons concludes that”the conventions governing democratic elections, and the
rhetoric surrounding them, do not establish that voting is a way of undertaking
obligations and granting authority” [ibid.]. Thus,pace Singer, voting is not an “as
if” or quasi consent, and if others act on the assumption that we have so consented,
that is their problem, or as Simmons puts it, if we later deny having consented,
nothing hangs on it as far as others are concerned.
But as Simmons points out, it is a rather odd feature of Singer’s view that our
obligations from voting are a function of the beliefs which others form on the basis
of our participation, suggesting that our obligations may be restricted to those who
happen to have those beliefs [ibid., n. 13]. Nelson adds the further point that
we do not need the notion of consent to explain the point of voting, if it has one,
as Singer seems to suggest. Given the highly structured and coercive context of
the state, people may vote because they might as well try and influence whatever
result they will be stuck with [1980,44]. Of course, as Narveson has reminded us:
“the expected value of your voting is not simply the value of G getting in, but of
that, weighted by the probability that she will if you vote- and that probability is
vanishingly small” [2008, 124-125].
As we saw earlier, Singer thought that we could avoid our obligations by clearly
announcing our non-participation at the outset. Others of course could do likewise,
in which case the prospects for voting also look rather bleak with a majority vote
leading to nothing [ibid., 55]. Unfortunately, Singer does not go on to explain why
we should shrink from a democratic meltdown if that in fact was a likely outcome.
After all, on his own account we have two other reasonably efficient governance
models to fall back on. Rather than telling us why we have reason to fear the
breakdown of democracy, Singer repeats his charge that the dissenter is free-riding
on the majority, regardless of whether he has declared his non-participation, since
if everyone did that, there would be no democracy.
4.1.2
Fair play as a solution to consent
Again, it doesn’t seem entirely clear what is or is not unfair about the dissenter’s
actions. Much of Singer’s argument is restatement of Hart’s principle of fair play
discussed earlier, namely that those who have submitted to rules governing a joint
enterprise have a right to a similar submission from other beneficiaries. We already
saw that the attempt to clothe this principle in the mantle of estoppel added nothing
of significance; as Green points out: “Even if voters are bound to obey because
failure to do so will frustrate the legitimate expectations of others, it is not a
consequence of having consented. To believe otherwise is to make the mistake of
identifying consent with its normative consequences” [ibid., 171-172].
However, as Simmons reminds us, Hart’s principle of fair play, also endorsed
by Singer, is designed to get around the difficulties posed by the consent doctrine,
which was embarrassed by a lack of subjects who had in fact consented. Fair play
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promises to provide such a general account, “Since mere acceptance of benefits
within the right context generates the obligation, one who accepts benefits within
the right context can become bound unknowingly” [1979, 117]. Thus Singer at this
point in his argument emphasizes participation rather than consent. The fact that
we participate in the decision-making process, and receive benefits thereby, makes
it harder to justify non-compliance, much harder than under the first two common
room associations where decisions are left up to a leader. To refuse to be obliged
by the deliverances of a fair democratic compromise is to take advantage of those
who accepted them.
We earlier discussed Nozick’s response to the fair play principle, where he argued
that we were not bound to cooperate with such schemes, such as a neighbourhood
entertainment system. Nozick’s PA system was put in place by “some of the people”
which might suggest from Singer’s point of view that it was less entitled to call upon
contributions from all in the neighbourhood. But if the consent doctrine faces a
paucity of consenters, then the fair play principle is going to have to explain what
sorts of things constitute cooperative schemes, and what it is to accept a benefit and
be beholden in return. In the case of public goods, or “open benefits” as Simmons
calls them, such as a PA system, Nozick is right that the principle is “objectionable
and unacceptable” [1974, 93]. Or, in Simmons’s more measured assessment, even
at the level of the neighborhood association: “participants in cooperative schemes
which produce “open” benefits will not always have a right to cooperation on the
part of those who benefit from their labors. And this does not look like a result
that either Hart or Rawls would be prepared to accept” [ibid., 136].
As we saw earlier, when we attempt to ramp up from what might or might not
be true at the level of the neighbourhood association to the larger polity, Simmons
rightly concludes that it is unreasonable to hold that actual political communities
function on anything like this basis, which is to say that any lessons which could
possibly be drawn from the association have little bearing on the political state,
which for most of us is not a cooperative enterprise in the relevant sense. Indeed,
as Simmons puts it: “it must be a rare individual who regards himself as engaged
in an ongoing cooperative venture, obeying the law because fair play demands it,
and with all of the citizens of his state as fellow participants” [ibid., 140].
So far then, neither consent nor fair play seems to have offered much promise as a
way of explaining what Singer has in mind by participation. Yet he would doubtless
reply that participating in voting in and of itself meant that we could not pretend
we had not done so, and therefore ignore the outcome. But as Green pointed
out with respect to the failure of Singer’s estoppel argument, “there is generally
no independent evidence of the meaning of voting,” Plamenatz’s conviction to the
contrary notwithstanding [1968, 171]. According to Simmons, voting is better seen
as a matter of expressing preferences rather than consenting. Voters are presented
with options, rather like condemned prisoners who may be offered a choice as to
how they are to die. Just as the prisoners could not be said to consent to either
option, since they despise both, the voter chooses the least unappealing of those
on offer. But this is only a matter of preference, not one of agreeing to hand
111
over authority to the candidate [1993, 223]. Moreover, if participation amounts to
consent, Nelson is not so sure that participation is a good thing, because it looks
like: “From a moral point of view, participants lose (or at least limit) their freedom
to reject immoral policies. The government, being founded on consent, legitimately
exercises authority whether or not it governs well [ 1980, 45]”
4.2
Democratic rules
As well as any question of unfairness to individuals who may have gone along
with the majority vote, Singer claimed that some of the unfairness resulted from
violating some rule essential to democracy. Singer’s next task then is to explain
which rules are supposedly essential to democracy, and which not, so as to determine
the proper role for disobedience within a democratic organization. We noted above
that that Singer had already observed that majority rule in and of itself was no
guarantee that a democratic compromise was as fair as it should be. Now he
proposes to clarify what sort of rights an individual has against a majority decision,
such that if those rights are infringed, there may well be grounds for disobeying
the will of the majority. In his view there are some rights which are essential to
the democratic decision procedure, such as freedom of speech, voting and assembly,
which if prejudiced by the association, could undermine its authority and make acts
of disobedience justifiable.
But even if we assume with Singer that the decision procedure is as sure a
foundation for fair government as we can hope to find, and superior to the other
models because of the degree to which it permits participation, it is not clear how
we are going to separate the rights essential to democracy from those that are not.
We are told that it will take “judgment” to discern the difference [ibid.,69], but
not the judgment of the decision procedure, it seems, since as Singer ruled in the
case of aggrieved minorities, “the fairness of the decision procedure cannot be left
to the decision procedure itself”[ibid., 68]. Since he doesn’t think that a higher
tribunal such as a supreme court is a workable solution, it will simply be up to the
judgment of the individual to decide whether a right is fundamental to democracy
and whether it has been infringed.
If indeed it is up to the individual, there seems to be nothing to prevent someone
deciding that some of the rights Singer is inclined to treat as non-essential, such as
freedom of religion or gay rights, are in their judgment essential. Indeed, it looks as
though Singer is prepared to countenance a situation where “the violation of nonessential rights may be so serious as to justify disobedience despite the democratic
reasons for obedience [ibid., 69],” a state of affairs which it will presumably also be
a matter for the individual to determine. The individual can decide, according to
Singer, whether or not she has got a fair hearing, and short of coercion, may attempt
to persuade the majority of that fact. It is a matter for individual judgement
again as to whether or not one has gotten a fair hearing, since “there seems to be
no general principle which would enable us to decide when views are getting an
112
adequate hearing” [ibid.,80]. If we think we have not, we are apparently entitled to
such disobedience as will allow us to fairly present our case.
Of course, how much disobedience is enough to do the job will presumably also
be an individual judgment call, though Singer thinks that as famous a dissenter as
Bertrand Russell can confuse acceptance of his views with getting a proper hearing
[ibid., 76]. As an example of disobedience which goes further than necessary to
protest lack of a fair hearing, Singer mentions sending in false registration papers
for military service. Even though such disobedience is non-violent, it is “an attempt
to coerce and not to persuade,” or to “fuck the system,” as the language of protest
so eloquently puts it [ibid., 83].
The reason we are not entitled to fuck the system is that if other groups in the
community did likewise there would be a breakdown in democratic decision making,
which, as we saw before, is to be avoided at all costs. I take it that, for Singer,
filing false papers counts as some sort of left wing extremism; left, because the left
is traditionally thought to oppose the draft, and extreme, because, according to
Singer, it resorts to coercion rather than persuasion.
However, it seems odd to describe not doing the bidding of the state, which
we consider the paradigm case of a coercive institution, to be itself coercive. It is
the state which threatens various and sundry unpleasantries to those who fail to
carry out its orders, even if they are not persuaded that it has any authority to
make those orders in the first place. Edmundson, for example, thought we had a
duty not to interfere with the state’s administrative directives, or in Singer’s more
colourful terms, not to fuck the system, but at no point did Edmundson suggest
that our not doing so would amount to coercion. Perhaps the source of some of
Singer’s difficulty here is that he has slipped from talking about a small association
to talking about the state, although he has yet to show that anything instructive
about the latter can be derived from the former.
Indeed, if we are talking about the state, we have already argued that Edmundson has not shown that we owe the state even as much as cooperating in its
administration, which is to say we are under no obligation to correctly register for
the draft or supply information required by the census, or whatever else the state
believes it needs to fulfil its supposed mandate. Singer is right that this sort of
interference with the functioning of the state goes beyond the persuasion he thinks
we should be engaged in. Of course he readily forgets that the state is not remotely
like the debating society model of the common room association, and while we
could attempt to persuade our local MP that we ought not to have to comply with
some directive, most of us have better things to do. No doubt Singer thinks we
should make the effort because if other groups in the community did likewise, “the
democratic decision procedure would break down, almost as surely as if they had
tried to settle issues by violence” [ibid.].
Again, Singer seems a good deal more troubled about the possibility of a democratic meltdown than I am. There is no reason to consider not complying with the
state’s directives as either coercive or verging on the violent, which is to say it is
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not on the same footing as burning down the Reichstag. Nor do I think that there
is much hope of separating democracy from the interventionist or dirigiste state,
as Mises did, which is to say that the only way to get rid of the latter may well
be to get rid of the former.1 If the left could bring democracy into disrepute by
burning their draft cards, Singer thinks that widespread disobedience might also
involve “the possibility of similar campaigns by right-wing extremists designed to
make welfare legislation unworkable” [ibid.]. Well, I suppose it might, though if he
has in mind inundating the bureaucracy with illegitimate welfare claims, I’m not
sure why such a strategy would be peculiar to the right. Libertarians, on the other
hand, can be hard to categorize as either right or left, but are likely to engage in
the sort of persuasion Singer approves of, in this case, to persuade their audiences
that welfare legislation is but another example of state interventionism, which is
to say, as Mises put it, “government interference with the market” where “all the
measures of interventionism by the government are directed toward restricting the
supremacy of consumers” [ibid., 40]. Inspired by Voltaire, Bastiat also proclaimed
that: “The state is the great fictitious entity by which everyone seeks to live at
the expense of everyone else” [1995, 144]. More recently Hazlitt has written in the
same vein that, since the government has nothing to give which it hasn’t taken
from somebody else, “all its relief and subsidy schemes are merely ways of robbing
Peter to support Paul” [1969, 209].
Thus it is not clear what one would have to do to make welfare legislation unworkable, since in the libertarian view it already is. As to what the government can
do to help the poor, according to Rothbard, it simply needs to get out of the way
in order to release the productive energies of rich and poor alike, with a resulting
enormous benefit for all [1978, 162]. Rothbard lists various ways government could
increase the welfare of the poorest, namely by removing its own regulatory roadblocks from their finding their own solutions, such as minimum wage laws, trade
union and licensing regulations. He mentions the case of Dr Thomas Matthew who
set up a multiracial hospital in the black section of Jamaica, Queens, arranging his
own bus transportation because the city system was inadequate for patients and
staff. The City of New York put his buses out of business because they did not
have a license, as they did another low cost hospital Matthew set up in Harlem,
citing fire violations.2 One can only assume that Singer sees merit in such obstacles
because they are the result of a democratic decision procedure, and any attempt
to by-pass them, as people like Dr Matthew did, will no doubt strike Singer as
misguided and no doubt coercive.
If Singer is concerned about coercion, supposedly bordering on the violent, he
need look no further than one of the above roadblocks, especially favoured by the
left, namely trade unions, whose privileges vouchsafed by government, according
1
cp. Mises,[2000,99]
University of Waterloo students, who recently tried to set up a low cost bus service, found out
that government stumbling blocks remain much as they were in 1960’s New York; such enterprises
are a privilege reserved by the state, as Dr Matthew no doubt could have told them, to inefficient
but protected monopolies.
2
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to Rothbard,”enable them to keep the poorer and minority-group workers from
productive and high wage employment” [ibid.]. As Mises also remarked, a union
is granted the right to resort to violence and disruption against entrepreneurs and
those of their own members who do not go along with a strike[2000, 67,87], which
leads Henderson to recommend removing their legal privileges, and “protect the
rights of those who wish to work for employers no matter who tries to prevent
them from working” [2002, 111]. While, according to Hazlitt, such violence is
tolerated in the name of supposed justice for workers,[1973, 142],in Mises’s view,
the only thing that will raise the standard of living is not union activity, but
increased investment [ibid., 87-88]. As we saw, Singer thinks that we need to
uphold the principle of democratic decision-making and not simply ignore it when
it results in unwarranted restrictions on individual freedom. This is not to say that
it does not have some shortcomings as a principle. According to Singer, one of
the characteristic weaknesses of democracy is that because it simply counts votes,
it is unable to take account of the intensity with which some views are held. It
might be considered a much fairer compromise if the degree of dissent could be
more accurately registered. We noted earlier that Mill thought it a good idea that
democratic voting reflect levels of education or political intelligence, a view not
favoured by Singer because he thought it might have trouble garnering popular
support. Perhaps the proposal to take into account voter intensity would run into
similar problems, to say nothing of the fact that it seems to have even less to
recommend it than Mill’s meritocracy, since political intensity, as well as perhaps
being hard to measure, may not be worth measuring in the first place.
Singer also defends his view of democracy against Russell, who claims it is essential to civil disobedience to flout the law which one believes unjust, and to suffer the
consequences, than to take the legal way out, for example, in the case of the draft
dodger, to apply for exemption as a conscientious objector. For Singer, Russell’s
position betrays a misunderstanding of democracy, in particular the democratic
decision procedure. Accepting the majority decision does not mean simply acquiescing in the law passed by the majority, as Russell thinks, but rather that one
respects the process. One may make one’s opposition to war as widely known as
possible, using all legitimate means available to change the law in question, but
actually breaking the law undermines the democratic process.
4.2.1
Wollheim and the paradox of democracy
Curiously enough, in a footnote to his claim that Russell has misunderstood the
democratic decision procedure, Singer levels a similar charge against Wollheim
with respect to the democratic paradox referred to in the latter’s well known paper.Although Wollheim does think there is something paradoxical about the fact
that when we vote for option A, the democratic machine may deliver option B as the
one favoured by the majority of voters, he spends the rest of his paper explaining
the supposed paradox away. If anything, Singer may in turn have misunderstood
Wollheim, who seems to agree with Singer on the need for maintaining the demo115
cratic decision procedure, or democratic machine, as Wollheim calls it. Wollheim
arrives at his formulation of the paradox of democracy, after having rejected the
solution that in voting for option A, the individual voter was merely expressing his
want, as opposed to recommending the best course of action: “if a man expresses a
choice for A and the machine expresses a choice for B, then the man, if he is bound
to be a sound democratic, seems to be committed to the belief that A ought to be
the case and to the belief that B ought to be the case” [1962, 78-79]. If Wollheim
had simply left us with this paradox, as one might perhaps have expected, given
the somewhat skeptical tone of his opening remarks about democracy, Singer’s
hasty dismissal might have been in order, but Wollheim does attempt to resolve
the paradox in a manner not incompatible with Singer’s position.
Again, Wollheim canvasses a couple of possibilities, first that one’s support
for A is hypothetical and contingent upon the majority read-out provided by the
machine. Wollheim rejects this explanation on the grounds that a majority vote
would only mean something if it aggregated unconditional choices, as opposed to
hypothetical ones, which could be more easily set aside in the face of an opposing
majority choice. The second possible solution is to consider the individual who
supports A as making an unequivocal moral recommendation, whereas the machine
in supporting B is simply offering a counsel of prudence, which A can then agree
to without appearing to give up on the moral convictions which led him to vote for
A in the first place.
Despite its initial plausibility, Wollheim similarly rejects the second solution to
the paradox, since for him belief in democracy amounts to more than a readiness
dictated by prudence to fall into line behind the democratic machine, should the
majority vote differently;he is in fact a “genuine believer in Democracy” [ibid.,
84]. Given that neither of the proposed solutions, which involve discounting the
force of voting for either A or B, prove satisfactory, Wollheim trots out his deus ex
machina: we can avoid a head-on clash between A and B, if we distinguish what
he calls “direct” from “oblique” moral principles. To say that murder is wrong is a
direct moral principle, whereas “what is commanded by the sovereign or people is
right” is an example of an oblique moral principle. The citizen who votes that A
ought to be enacted, and is later outvoted by the majority who support B, derives
his support of B from an oblique principle, namely the Principle of Democracy.
However, it seems that Wollheim is right that his distinction is rather unsatisfactory [ibid., 85]. Even if the voter can comfortably support both A and B because
of what Wollheim claims is an important difference in their respective derivations,
whatever B is seems always guaranteed to carry the day, since it is underwritten not
only by an oblique principle, but also one that has some prior claim on obedience,
such as the principle of democracy. To those who are not persuaded, and who are
inclined to the view that there is no way around the incompatibility of holding that
both A and B ought to be the case, Wollheim asks us, for example, to consider
the claim that Jews ought to be given privileged treatment. Such a claim can be
uttered directly, perhaps as an expression of Jewish chauvinism, or obliquely, where
it follows from some facts about Nazi Germany together with a principle that the
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persecuted merit special attention.
Wollheim is right of course that one proposition can lend itself to rather varied
interpretations, depending on context and supporting data. But even in the case of
the direct principle we have to supply a context within which it is to be understood.
The chauvinistic interpretation of the claim for special treatment of the Jews, for
example, could just as easily be the result of a majority vote, and thus result
from an institutional action, perhaps that of a Zionist group. Coupled with the
relevant facts of Jewish history, and the principle of democracy, the less favoured
or chauvinist interpretation could also be said to have an oblique derivation, if that
is what Wollheim thinks is important. In response to a second objection that one
could not coherently opt for the implementation of both A and B, knowing that
simultaneous implementation of both is impossible, Wollheim replies that voting
for A does not commit one personally to implementing A. If I am committed to
A, then I am committed to strongly advocating on A’s behalf, but once votes are
cast, I am also committed to swinging my support behind the majority vote for B,
so that for Wollheim ” it seems perfectly possible to be simultaneously committed
in these two different directions” [ibid., 87].
If there really isn’t a paradox in the theory of democracy after all, as Wollheim
claims to have shown, it isn’t clear why Singer thought that Wollheim’s discussion
was another example of Russell’s mistake of failing to understand the nature of
democracy. While Singer may have had cause to disagree with the first part of
Wollheim’s paper where he presents what he takes to be the findings of social choice
theory about democratic voting procedures, he has little reason to be concerned
with Wollheim’s proposed resolution of the paradox, which would only lend further
support to Singer’s own position. Of course Singer may well have thought that
Wollheim was wrong to suggest that there was a paradox about democracy in the
first place. In the absence of a fuller discussion by Singer, the question about
whether Wollheim was more friend than foe need not detain us, nor would it in our
view particularly redound to Wollheim’s credit, should he turn out to be the former
rather than the latter. With respect to his formulation of the paradox, as one way
to characterize what is wrong with democracy it has something to recommend it,
though his proposed solution is unconvincing.
Wollheim’s view that one’s enthusiasm for one’s own vote is always under tight
control seems to be at odds with his earlier position that there would be no point
in aggregating votes that were based on less than unconditional support. Similarly,
with respect to majority vote B, Wollheim had earlier claimed that there was a
commitment on the part of the genuine democrat to the deliverances of the democratic machine, as suggested by the dictum that “what the democratic machine
chooses ought to be enacted” But when he presents his resolution of the paradox,
support for B is also qualified in order to narrow the gap between A’s vote and
that of the majority. A need not believe that any obligation to enact the wishes
of the majority is incumbent upon him personally, but rather his obligation may
amount to no more than simply not impeding the majority vote being translated
into action. As we saw earlier, Edmundson argued in similar fashion that instead of
117
a general obligation to obey the law, we were subject only to a duty not to interfere
in the administration of laws duly passed by the majority.
4.2.2
The relevance of Singer’s models to large scale democracies
In the latter part of his essay, Singer turns from a discussion of the ideal form of
democracy as represented by the third or democratic model, to explore in more
detail whether anything that might be true of that model would also hold in something closer to real world democracies, though as we noted, some of his discussion
thus far seems to have assumed that such a transition is possible. In any case
Singer now proposes to ask whether any of the countries commonly thought to be
democracies meet the criteria characteristic of the third model, such as an equal
vote of all members, impartial procedural rules, as well as some concern that justice
not only be done to minorities, but also be seen to be done by them. Only thus,
according to Singer, could a governance association be considered to represent the
sort of fair compromise of power and participation, such that one could reasonably
expect the membership to support the outcomes of the association’s deliberations.
However, such democracies as actually do exist present significant departures
from the ideal sort of direct democracy envisaged by the third model, which according to Singer hearkens back to the Athenian democracy where “the citizens met in
a General Assembly and there, under conditions of political equality and debate,
discussed and voted on the major issues that faced the community” [1974, 106].
With respect to the origin of democracy in Greek antiquity, Wollheim further notes
that the government of the demos contrasted with a modern democracy by being
the government of a particular segment of the population, namely the populace or
poor. The names of other parallel structures referred to the section of the population which wielded power within that sphere, such as Aristocracy, or government
by the best, or Oligarchy, government by the few.
Moreover, Wollheim observes that it is a feature peculiar to modern democracies that the governing body is drawn from the citizens as a whole,[ibid.72]. a fact
which has led to democracy being no longer direct, but representative. Although
the view that democracy meant some sort of direct rule by the people seems to
have persisted until at least the 18th century, by the middle of the 19th Mill remarked that because of practical considerations direct participation was likely to
be restricted to relatively small organizations [1958, 55]. According to Dahl recent
scholars have estimated the average Greek city state to have numbered between
2000 and 10,000 full citizens, which in their view was about the right size for the
ideal polis. However, those of us who have sat on much smaller governing bodies,
say of 20, have long since realized that if every member is to talk on average for
no more than 10 minutes, we need to set aside at least 4 hours, which is already
beyond what most of us want to spend in a meeting. If we crank up the numbers to
a small town of 5000, a town hall meeting where each tried to speak for 10 minutes
118
would take over 100 working days for all to be heard, leading Dahl to remark that
“in an ideal polis of 10,000 full citizens, the time required is far beyond all tolerable
limits” [1998, 107].
Curiously enough, Singer dismisses a view such as Dahl’s to the effect that direct
democracy is only workable in very small units as a common, but false platitude
of political theory. Singer thinks that although representative systems came into
existence at a time when it was not practical for citizens to come together, given our
modern methods of communication, we are now within easy reach of government,
and it is only fashion which dictates otherwise. While Dahl would agree that
electronic meetings are possible, it is another matter for large numbers to engage
in productive electronic discussion [ibid., 105-106].
Goodin is nevertheless proof that the ingenuity of democratic enthusiasts is
not to be underestimated, with deliberative democracy being touted as one of the
more interesting developments to have appeared in recent years.3 However, as
innovative and valuable as deliberative democracy supposedly is, Goodin suggests
that because of some of the practical difficulties already alluded to we shift the
focus from group to individual reflection. Deliberating with oneself does put things
on a more manageable scale, but Goodin suspects that this modality cannot quite
replace group discussions. By setting more store by internal reflection than others
have done, Goodin hopes to improve the quality of the face to face encounters
which remain indispensable in most accounts of deliberative democracy [2003, 170171,179].
No matter how fruitful the deliberation, we will eventually have to call the
question, and Goodin considers the final vote to be the ultimate source of “democratic legitimacy” [ibid.,192]. On the other hand there may be some question as
to what the show of hands really signifies, other than the end of deliberation at
least for the time being. As we saw, Singer thought that the final decision was not
enough to confer democratic legitimacy, because a clear majority vote could still
raise questions about the fair treatment of the losers or the minority. Narveson also
acknowledges that some think it unfair that a sector of the Canadian voting public,
such as Quebec, is persistently relegated to minority status, something which no
doubt the Bloc Québecois hopes to remedy [ 2008, 127].
Singer proposed various corrective measures to cure the perceived unfairness
of being in a more or less permanent minority, as does Goodin, where they take
the form of an internal accounting of the various ways in which other parties may
be treated unfairly in the democratic process. It is also intended that internal
deliberation make up for some of the practical difficulties which Dahl thought inevitably attended large scale deliberation, as well as confer the equally important
“democratically deliberative” seal of approval; in Goodin’s words, “the more democratically deliberative our internal reflections manage to be, the less it will matter
that external-collective decision procedures can never be as directly deliberatively
democratic as we might like in large-scale mass societies” [ibid.,193].
3
cf Gibson [2003, 229]
119
So instead of recognizing with Narveson that “democracy is inherently and necessarily majoritarian” rather than just “some kind of accidental sideshow” [ibid.],
Singer and Goodin in their own different ways offer us more of the same. But, as
Harper wrote some years ago, “Decision by the test of dominant preference (majority vote, etc.) is the same operating principle as the one that might makes right”
[1949, 60], which is to say that it should come as no surprise, widespread beliefs to
the contrary, that it is inimical to individual liberty. More recently, Narveson has
also argued that it is often just assumed that democracy is morally right, rather
than just perhaps the least reprehensible;if so, we need to ask how it is we find in
favour of the former, rather than the latter [2002a, 176].
As both Harper and Narveson point out, democracy possesses moral authority
to the extent that it promotes liberty and not otherwise. Indeed, as Harper reminds
us the conflation of democracy with liberty is wholly mistaken.While the right to
vote is a liberty some think worth preserving, so much so that it is seen as a right
which cannot itself be abridged by voting, there is no guarantee that the outcome
of any vote will in turn preserve liberty [ibid., 56-57]. Moreover, to the extent that
democracies have been successful,as Narveson observes, this is because their support
of liberty has not simply been confined to that of voting, but has been written into
their constitutions, perhaps in the form of some of the standard liberal freedoms,
such as those mentioned above by Singer, and as a result influenced community
practice.
4.2.3
Representation and authority
Given that various attempts to improve democracy appear to involve our getting
more of what we don’t need, assuming of course that those who currently avoid
the ballot box like the plague will show any interest in doing the mental homework
Goodin has in mind for them, we seem to be left with some version of the sort
of representative democracy with which we are now reluctantly familiar. Singer
thus canvases some of the standard theories of representation to see in what sense
the criteria he is interested in, such as fair compromise and participation, are preserved under different versions of representative democracy. If representation is
taken rather literally, it means the representative sees himself in some straightforward sense as representing those who for various reasons couldn’t be there, as
well as taking some pains to represent the views of his electors. Although Singer
thinks that there might be circumstances where the voters would feel betrayed by
a representative who was greatly imbued with Burke’s doctrine of independence,
in general he concludes that “there are forms of representative democracy in which
reasons for obedience that hold in direct democracy would still have their full force”
[ibid., 111].
Of course, as we have been suggesting, if there are any reasons for obedience,
they are of an independent moral sort, and have nothing to do with whether a position was arrived at democratically, either directly or indirectly via representatives.
120
Further, while thus at least prima facie there is no reason to think that representative democracy would in and of itself give rise to grounds for disobedience which
would not exist under the hypothetical model association, it also remains to be seen
how closely actual representative democracies conform to any theoretical account
of them. In fact, Singer concedes that most theories of representative democracy do
not describe real political systems:”Representatives do not vote as their constituents
would have voted; nor do electors choose those whose wise judgment they can trust;
nor are representative bodies microcosms of the nation” [ibid., 112]. According to
Singer, if we have been able to revise the traditional myth of representative democracy, it is because of the work of commentators such as Schumpeter, or Dahl, who
echoed Schumpeter’s criticisms.
Indeed, Schumpeter disposes of the classical doctrine of democracy according
to which there is “an institutional arrangement for arriving at political decisions
which realizes the common good by making the people itself decide issues through
the election of individuals who are to assemble in order to carry out its will” [1950,
250]. Schumpeter holds that there is no such thing as a common good which might
be arrived at by rational discussion, if for no other reason than that in political
matters rationality is in short supply. Even if people were capable on more than
the odd occasion of forming consistent rational desires “it would not necessarily
follow that the political decisions produced by that process from the raw material
of those individual volitions would represent anything that could in any convincing
sense be called the will of the people” [ibid., 254].
Moreover, given the opposing preferences surrounding most political decisions
it is unlikely that the end result will conform in any way to what people really
want,nor pace Singer, is it a foregone conclusion that what they come away with
is some sort of fair compromise. Schumpeter thinks that something resembling a
compromise might be possible when dealing with quantitative issues, e.g., when
there is general support for a particular expenditure, but where the actual amount
may need to be decided via compromise. However, when the question turns on
qualitative or value issues, such as in Singer’s example, whether or not the common
room should subscribe to a particular newspaper, there is much less chance of
reaching what the dissenter and maybe others would consider a fair compromise.
In fact, Schumpeter contends that decisions produced under governance models
more closely resembling Singer’s non-democratic ones, at least when dealing with
the more problematic qualitative decisions, might well be received more favourably,
a point which he illustrates by an example drawn from Napoleon’s First Consulship,
a governance structure similar in some respects to Singer’s first model association.
According to Schumpeter, the ordinary citizen has trouble generating the mental energy to understand more complex domestic and foreign policy issues, or as
Narveson writes, given the vast scope of government, acquiring the relevant information is beyond most of us, and given how little our vote counts, it is not worth
our while [2008, 125]. However, ignorance has never been known to stand in the
way of citizens responding with enthusiasm to politicians’ assurances that the day
of the free lunch is not yet over, which is not quite what the classical theory had
121
in mind when it spoke of the voter seeking to promote his rational interests. As
Schumpeter observes,”it is only the short-run promise that tells politically and only
short-run rationality that asserts itself effectively” [ibid., 261]Schumpeter further
notes that when it comes to politics the typical citizen, rather than using his analytical capacities, “becomes a primitive again. His thinking becomes associative
and affective” [ibid., 262]. This means that the non-existent will of the people has
to be manufactured by the politician, who appeals to those subconscious thinking
patterns by borrowing from the techniques of advertising.
It is not surprising then, as Narveson has reminded us, that governments communicate via sound-byte how they plan to set the world aright, or for a different
audience, to have it rain beer, with the help of funds which the taxpayer has apparently been only too happy to donate to the cause. Of course the sound-byte is wholly
inadequate to properly treating just about any issue of importance, such as global
warming, a subject of considerable political enthusiasm of late, which only serves
to illustrate Schumpeter’s comment that “effective information is almost always
adulterated or selective and that effective reasoning in politics consists mainly in
trying to exalt certain propositions into axioms and put others out of court” [ibid.].
Or, as Narveson puts it: “Democracy, it seems, dooms us to mediocre government,
as dictated by easily propagated misinformation.” 4
Having shown the classical theory of democracy to be largely a myth, Schumpeter states that the role of voting in a democracy is simply to produce a government. Those who would rule must compete for the favour of the electorate,
ably assisted by an assortment of image makers and political operatives. In case we
thought that we had some control over those we elect to office, Schumpeter reminds
us that the best we can hope to do is to turf them out, if they prove incompetent,
as they generally do.5 So on Schumpeter’s view it sounds as though Wollheim,
for example, has got the modern version of democracy wrong as well, since for
him democracy implies that the people should rule “in the sense not of devising or
initiating legislation, but of choosing or controlling it” [ibid. ,73].
According to Schumpeter, while we choose the legislators in some sense or other,
we don’t control either them or their legislation, despite the fact that the number
of those, who think we do, including Wollheim, is legion. Dworkin, for example,
claims as one of his background assumptions that each citizen has a ” a roughly
equal share of control” over decisions made by legislators [1986, 178]. Shapiro
speaks of democratic justice, which is not simply procedural but: “It is concerned
with reshaping civil arrangements to ensure that those affected by collective decisions have a say in them, and wherever possible to diminish the domination they
facilitate” [1999, 89-90]. This is achieved by improving participation, perhaps by
reflection prior to voting, as suggested by Goodin, even though he himself admitted
at the outset that one individual’s vote is unlikely to make much difference [2003,
5]. Shapiro’s fine-tuning of democracy, like Goodin’s, is inspired by the view, which
4
”Government by sound-byte,” 5
Narveson also speaks of democracy as a mechanism for throwing the rascals out [“Liberalism
and Democracy,” 5b]
5
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we have already called into question, namely that democracy is correct in principle,
or in his words, “doing things more rather than less democratically is a good thing”
[ibid., 90].
As we also saw above, Singer placed Dahl in the same camp as Schumpeter who
was intent upon revising traditional democratic theory so as to make it less of a
normative account and more descriptive of actual practice. Thus Dahl states that
if we expect elections to reveal the will of the majority on various questions, we are
mistaken since that rarely happens [1956,131]. However, Dahl thinks that elections
not only install leaders along with their governments, but also provide some sort
of control over the leaders, if not over policies. While, unlike Schumpeter, Dahl
stops short of saying that political activity both at elections and in between is of
no importance for determining policy, he does hold that there is no guarantee that
policy will match majority preferences. In fact he thinks that democracy is wrongly
described as majority rule. Nor is it rule by one minority, which is more or less
what constitutes a dictatorship. It is in fact government by competing minorities
against a background of majority “acquiescence or indifference” [ibid., 133].
Thus if Singer was hoping to find some reassurance from influential commentators such as Schumpeter or Dahl that there is anything corresponding to his third
model association in the real world, he can only have been somewhat disappointed.
Dahl thinks that polyarchal democracy, or government by minorities, is preferable
to dictatorship, because he believes more people at least get in on the act under
the former regime than under the latter, and have some chance to influence leaders
and policy. While, in his view no real world governments are true democracies, polyarchies are “highly inclusive and extensively open to public contestation” [1971, 8].
Perhaps one obvious sense in which we get government by minorities is where governments are elected by around 40% of voters, in exchange for 100% of government
power, as typically happens in Canada. 6 As for the benefit of public contestation
conferred by polyarchy, for most of the voters, who even bother to vote, it means
nothing more than going to the polls every four years or so. On the question of
whether polyarchy offers us any greater influence over government than a dictatorship or monarchy might have done Gibson et.al.write that rather than being
democracies,Canadian governments are in fact “a four year elected dictatorship”
[2003, 248].
Canadian democratic enthusiasts need not immediately rend their garments,
however, since The Economist’s index of democracy lists the country in 10th place
among the 28 which qualify as “full democracies,” a category which apparently
tolerates the odd bit of dictatorship between consenting adults. Canada’s overall
score at 9.07 out of 10 perhaps reflects the fact that we still have some way to
go in achieving that rather elusive control of governments by the governed. Small
European countries such as Sweden, Netherlands and Norway are apparently closer
to the holy grail of democracy, if Kekic of The Economist has managed to measure
anything of significance, while the US is in 17th place, and the UK, home of the
6
cf.Gibson [2003, 255]
123
mother of all parliaments, is in 23rd place. It is also worth noting that the 28
full democracies only account for 16.8% of the world’s countries and 13% of its
population, suggesting that the golden age of democracy may be a long time in
coming [2007, 4-6].
Kekic’s study carries on the Schumpeter/Dahl tradition of looking democratic
practice squarely in the face, something which strikes Singer as making “virtues
out of necessity,” as Churchill perhaps also did when he famously remarked to the
Commons in 1947 that: “No one pretends that democracy is perfect or all-wise.
Indeed it has been said that democracy is the worst form of government except all
those other forms that have been tried from time to time” 7 Even if we think that
democracy, such as it is, is about as good as it gets, Singer would still want to ask
of this revised view, whether it could meet the criteria which he thought sufficient
to dissuade the dissenter from disobeying the wishes of the majority. That is to say,
whether the state of affairs proposed by the latter day revisionists constitutes the
supposed “fair compromise between all individuals and groups giving no particular
advantage to any of them.” For Singer, fairness seemed to be bound up with
the traditional model where “each member of the society has one vote, which he
allots to the candidate who he believes will best represent his views, interests or
social group, or who will make the best decisions on the major issues of the day”
[1974,116].
Singer was no doubt inspired by Plamenatz, who also thought that we might be
able to clarify the notion of a fair compromise, provided we keep to small groups
of half a dozen members, thus perhaps even smaller than Singer’s common room
association. Even within such small groups there may be on any given issue as
many opinions as there are members. One way such a group could attempt to reach
a compromise is by appointing an outside arbiter whose judgment they all trust.
They may on the other hand attempt to reach a compromise among themselves after
due consideration. Plamenatz suggests we also consider the worst case scenarios
for each modality, namely where the arbiter is less professional, or in the do-ityourself version, where a couple of members feel their views have received a less than
sympathetic hearing. While Plamenatz notes that Schumpeter is in good company
in believing that “democracy is not a matter of putting a sort of collective will, the
people’s will, into effect,” [1973, 104]. Plamenatz wants to show that there are at
least some cases, such as the two less problematic small group instances, where we
might say the decision reflected the will of the group. In both of these cases the
six members may all agree that the final proposal constitutes a fair compromise,
whereas in the two worst versions, there is less than unanimous agreement that
either the arbiter acted fairly, or that all views received a fair hearing.
Within the fair compromise subgroup, one arrived at via an arbiter and the
other via group discussion, a decision may be reached as a result of some members
siding with the majority after due deliberation. Others may stick to their original
proposals, while agreeing that the overall decision represented a fair compromise.
7
cited by Gilbert, [2006, 124]
124
Plamenatz argues that two different senses of the notion “the will of the group”
are needed to distinguish the first case where all agree with the decision arrived
at, from the second where they agree that the decision was fair, despite the fact
that their views did not coincide with the majority. While Plamenatz thinks the
first will primarily be of interest to theoreticians, the second will be more likely to
occur in practice, or if it doesn’t, is something democrats think they should aim at
[ibid., 106]. Plamenatz also thinks that the collective will may manifest itself even
in cases which some believe rest on an unfair compromise, such as where the arbiter
was less than impartial, or where they feel that their views were not given a proper
hearing.Plamenatz responds that if you have agreed to submit to an arbiter, or to
majority rule, that agreement is binding and to be considered a fair compromise,
regardless of how biased the arbitration was, or how unsatisfactory the deliberation,
since all were aware of the ground rules for a decision. However, in the case of the
former, it does sound a little like insisting that those who complained about the
notorious partiality of Nazi judges really had nothing to complain about. In the
latter, you might have good reason for complaint, if for some reason or other you
were unable to state your case, perhaps because of time constraints.
Thus despite Plamenatz’s intention of clarifying the notion of a fair compromise,
we don’t seem to be any further ahead than we were with Singer, who doesn’t even
pretend to explain it. What is really driving Plamenatz’s account is the notion of
a “collective will” which he thinks has more going for it than Schumpeter does,
and which he thinks is revealed in the sort of small group cases already mentioned,
including those supposedly involving unfair compromises, “for in these two cases,
the men affected by the decision have actually made proposals, have expressed
preferences” [ibid.]. Of course, it may be that those who complained of not getting
a fair hearing, did not in fact get a chance to express their preferences.
However, in the case of macro level decisions such as that of Napoleon’s religious
settlement, Plamenatz argues that the Concordat could not be seen as giving effect
to the will of the people, “unless the people or the group have been consulted
and have expressed their wishes, and the maker of the decision has reached what
seems to them a fair compromise” [ibid.,107]. Plamenatz incorrectly assumes that
Schumpeter was simply putting the Concordat forward as an illustration of the will
of the people, whereas he is more interested in pointing out that democracy could
almost never be counted on to deliver “anything that could in any convincing sense
be called the will of the people” [ibid., 254].
Indeed, it may well be that in complex qualitative issues, a dictatorship, such as
that of Napoleon, to say nothing of the Holy See, could take decisions which proved
acceptable to the people in the long run. This was the case with the Concordat,
a decision which Schumpeter feels could not have been reached democratically,
and yet: “If ever there was any justification at all for holding that the people
actually want something definite, this arrangement affords one of the best instances
in history” [ibid.,255]. The fact that such a non-democratic decision came as close
to being a paradigm case as anything could of such an improbable notion as the
will of the people leads Schumpeter to conclude that: “If results that prove in the
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long run satisfactory to the people at large are made the test of government for the
people, then government by the people, as conceived by the classical doctrine of
democracy, would often fail to meet it” [ibid., 256].
If Schumpeter is right, democracy does not have a monopoly on fair compromise,
since the Concordat seems to fit that bill too, if anything does. In any case Singer
thinks that the notion of a fair compromise, though it could in principle survive the
transition from direct to representative democracy, is unlikely to survive in practice,
at least as that has been characterized by the revisionists. In fact, any hope that
Singer might have had that any actual large scale democracy could replicate the
equal division of power envisaged by his model association should be finally laid to
rest by Dahl’s observation that “inequalities in power” have existed in all ages, and
democracies, at least in their latter day polyarchic manifestation, are no exception
[1989, 271]In fact he thinks that full political equality is probably “beyond the
limits of our human capacities” [2006, 119].
Of course if we agree with Narveson that “democracy is the equal division of
fundamental political power among all the governed” [2008, 115]. then what you
see is what you get. Expecting democracy to deliver something more than “one
person one vote,” as presumably implied by Dahl’s ultimate goal of “complete
political equality,” may be even more futile than the hope that one vote will really
make a difference. On the other hand the politically astute have decided that it
is equally futile to await the golden age of democracy, and have decided to make
the best of the existing version, or what Dahl calls polyarchy. While it hardly
pays the individual qua individual to vote, being part of a minority or pressure
group,if the political timing is right, can make it worth one’s while when it comes
to feeding at the political trough, where notably some animals are more equal than
others. Indeed there are endless opportunities for political enthusiasts to generate
rents as full-time politicians or government bureaucrats, both of whom can wield
disproportionate influence in their own favour. As Seldon reminds us, government
rewards go to the organized at the expense of those who lack the skills of political
organization, and thus “To speak of majoritarian democratic “rule by the people”
is a careless distortion of the English language” [2002,44].
4.2.4
Political parties
Another important feature of contemporary parliamentary democracy is the political party, which has no real counterpart in a direct democracy such as the third
model association and which probably developed after the traditional theory of
democracy had already taken hold. Perhaps because of this it seems difficult to
account for something like party discipline along the lines of the traditional model,
or for other features of parties which have struck some commentators as rather undemocratic. Michels famously remarked that: “Organization implies the tendency
to oligarchy. In every organization, whether it be a political party, a professional
union, or any other association of the kind, the aristocratic tendency manifests itself
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very clearly” [1959, 32]. As for any control over the leader, which the revisionists
thought was still to some extent a feature of democratic practice, Michels concludes
that this is largely fictitious, since the leader soon acquires the habit of making his
own decisions without consulting the rank and file [ibid., 34].
While Michels’s belief that hierarchy was essential to the functioning of a political party might strike some as dated, having been first enunciated almost a century
ago, Simpson reminds us, with reference to the Canadian parliamentary machine,
that little has changed. Although the title of prime minister suggests a first among
equals, the cabinet and party, to say nothing of the parliament itself, exercise very
little control [2001, 62]. With respect to public support for what one commentator
has called “the imperial prime-ministership,” Ibbitson points out that of the 15
majority governments Canada has enjoyed since World War I, in only 4 of those
cases did the government receive 50% of the vote. Voter turnout has also been on
the decline in recent years, with the lowest ever in the 2004 Federal election of 62%,
and since there is no guarantee that the list of voters contains all those eligible,
less than 50% may end up voting. Indeed, Ibbitson concludes that younger people
are staying away from the polls in droves,”raising questions of whether modern
liberal democracy is democratic at all” [2005, 214,215]. If this is right, perhaps it
just confirms the prognostications of Plato and Tocqueville that democracy would
degenerate into despotism.
On the other hand, there is much to suggest that democracy is just despotism
dressed up as the mythical will of the people, that Hart’s Rex never really departed,
but just exchanged the orb and scepter for a business suit. In that case we can
only hope that so-called disengagement from politics is indeed on the increase, but
rather than something to be deplored, as journalists with an appetite for politics
are fond of claiming, it is to be welcomed as an important step in the decline of
the state. As Chodorov asked himself, why bother attempting to clean up “an
institution grounded in thievery,” when every vote for good government gives more
of the same? He recommends we all do as he did many years ago and ignore election
day [1980, 205].
Michels’s view that political parties are undemocratic and ruled by oligarchies
appears to be shared by Dahl, who observes, for example, that both major US political parties are better described as “coalitions of oligarchies” [1967, 245]. However,
in later writing, Dahl held that Michels was somewhat hasty in extending his “iron
law of oligarchy” from political parties to the government as a whole. Dahl thinks
that while it is not impossible that dominant elites or minorities should rule, if
not directly then by indirect manipulation, competition between parties, as well as
Dahl’s theory of polyarchy, where a variety of minority groups have some influence,
reduce the chances of government by oligarchy. As much as anything else, Dahl
believes that theories of minority domination will fail for want of empirical evidence
in support of any such tendency. In fact, he argues that because of the vast range of
government interests a ruling elite or inner circle will be forced by circumstance to
focus on what it considers to be key issues, which means that other minorities can
have considerable influence in areas important to them and perhaps less important
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to the central committee, for example farmers on agricultural policy, or seniors on
pensions and health care. In general Dahl believes that theories like the iron law of
oligarchy “divert us from a realistic assessment of the true limits and potentialities
of democracy” [1989, 279].
As to “the true limits and potentialities of democracy,” our assessment thus
far has not proved very encouraging for those who see it as the obvious source of
the authority of the state. We certainly look forward with Marx to the eventual
withering away of the state, as a prelude to establishing a liberal rather than a
state-sponsored order, coming somewhat closer to Dahl’s “promised land of perfect
freedom,” though we are realistic enough in his sense to believe that this will more
likely be accomplished by increments than “an apocalyptic revolutionary transformation” [ibid.]. What isn’t clear is what democracy supposedly has to do with
that, since, as Narveson has observed, liberal freedoms, such as those of contract,or
speech, to the extent they have anything at all to do with democracy, are likely to
be threatened by it [2002a,172].
With respect to Dahl’s worry that we might be distracted from the grand vision
where we govern ourselves democratically as free and equal citizens, one would have
thought that, as a card-carrying revisionist, he would have long since consigned
that collection of confusions to the rubbish tip. Mueller contends, for example,
“that democracy in practice is not about equality, but rather about the freedom
to become politically unequal,” [1999,137]. while Mill famously reminded us that
“the “self-government” spoken of is not the government of each by himself, but of
each by all the rest” [1974,62]. And if it is the latter that we are really talking
about, then, as Narveson has remarked, this becomes a rather difficult exercise, if
rule is for the ruled and not the rulers, which is to say that “it is up to B to decide
whether A’s rule is for B’s good” [ibid., 172].
Moreover, with respect to Dahl’s criticism of Michels, it doesn’t strike me as too
much of an oversimplification to suggest that as the party goes, so does the government, if only because under the Westminster system, the leader of the party that
wins the election is called upon to form the government. The leader continues to
lead the party as well as heading the government as prime minister. As for evidence
of a tendency to oligarchy at all levels, there is no shortage of at least anecdotal
evidence of one sort or another attesting to dictatorial behaviour of prime ministers,
ministers, caucus members, party whips, to say nothing of the vast bureaucracies
who claim to deliver the government’s policies. Simpson writes, for example, that
“the prime minister is the Sun King around whom all revolves and to whom all
must pay varying forms of tribute” [ibid.,4]. The fact that most of us are not privy
to discussions held in the corridors of power is noteworthy in and of itself, as well
as making such events hard to document.
Further, Dahl argues that even if we agree with Michels that political parties
have a tendency to oligarchy, one of the guarantees against oligarchic government
is competition between political parties. To support this contention, Dahl offers
us an analogy with business, where although an individual firm may internally
128
be an oligarchy, competing firms set limits to its ability to control the external
environment and become a monopoly. However, in the case of Canada, the Liberal
Party governed for almost 70 years of the past century, suggesting that genuine
political competition was largely absent.
More recently Shapiro has further noted that with the small number of major
parties in countries such as Canada and the US “what we actually get is oligopolistic
competition, and it becomes clear that the sense in which parties are as attentive
to voters as firms in competitive markets are to consumers is quite attenuated”
While governments have not hesitated to prosecute firms such as Microsoft for
supposedly breaching antitrust laws, in the face of a constrained political market,
Shapiro thinks it “remarkable that public interest litigants, activists, and political
commentators (not to mention political theorists) do not argue for attempts to use
antitrust laws to attack the existing duopoly” While it is often thought to be a
good thing that individuals and parties engage in deliberation to overcome their
differences and reach consensus, Shapiro holds that “bipartisan consensus (and
the ideal of deliberative agreement that lies behind it) is really anti-competitive
collusion in restraint of democracy” [2003,204].
4.2.5
The supposed virtues of polyarchy
As for the claim that what we are really dealing with is not democracy as traditionally understood, but rather polyarchy, or competing minorities, while this may
describe an important feature of contemporary democracy, more recent critics of
democracy have correctly found this to be one of its more harmful characteristics,
including, as Seldon points out, the producer lobbies which are spawned in staple
industries such as manufacturing, transport and education [2002, 45]. The alleged
strength of polyarchy is that everybody can get on the minority bandwagon at some
point and that all minorities or lobbies have roughly equal clout and can in some
sense or other keep one another in check. The view of Seldon and more recent
critics is that democracy does not come anywhere near the fair compromise Singer
talked about, but that its deliverances are distinctly unequal, favoring as it does
the politically skilled and organized over the unskilled and unorganized [1990, 115].
No doubt the classical view of democracy would have us believe that a representative acting in the interests of all his electors might help overcome some of
these inequities. Indeed, it might, but chances are it won’t, because political considerations will likely dictate otherwise. Though, you might be in luck, according
to Tullock, if your preference on some issue is around the middle, since parties
wanting to be elected gravitate towards the position of the median voter [2006,
53]. But regardless of your preferences, shopping at the one-size-fits-all government
store, in Seldon’s view, is never a sure thing, since “In the long chain of instruction or command from voter to representative to minister to bureaucrat and back,
there is considerable room for misunderstanding of preferences, misinterpretation
of circumstances, misrepresentation of wishes, ambiguity of instructions and misdirection of effort” [1990,115]. Although escape to other suppliers is often blocked
129
by government regulation, Seldon lists a number of escapes which are becoming
increasingly popular, such as affluence, which enables people to use the schools
or medical services of their choosing, the parallel economy or black market, the
internet, and finally the world, via emigration [2002, Ch. 3].
The various escapes from over-government are doubtless prompted by the lack
of any choice between parties, which, as Tullock pointed out, are falling over themselves to govern from the centre, a centre which continually shifts, it seems, in a
statist direction, despite the pretence of some of the rulers to be interested in doing
otherwise. Indeed, this tendency for there to be little difference in the actual performance of the two governing parties is further evidence of Shapiro’s anti-competitive
collusion in restraint of democracy. Rothbard reminds us that, at least in the case
of the US, bipartisanship is not only typical of foreign policy, promoting global
intervention in the name of democracy, foreign aid and trade mercantilism, but is
equally pervasive on the domestic front, where the collectivism which might have
been advanced by Democrats has if anything been ratcheted up by Republicans
[1994, 4].8
On the question of any real competition between parties and their leaders for
the people’s vote, Schumpeter thought it was only one of potential competition.
Although elections generally preclude military coups, he also thought that they do
so at the price of actions which in the economic arena might be called unfair or
restrictive trade practices. However, being the political realist that he is, Schumpeter thought this preferable to some unattainable ideal since, “Between the ideal
case which does not exist and the cases in which all competition with the established leader is prevented by force, there is a continuous range of variation within
which the democratic method of government shades off into the autocratic one by
imperceptible steps” [ibid., 271]. As for parties and party discipline,Schumpeter
contends that if we want to understand how things work, rather than philosophize
how they might,then in a similar spirit to Michels we will realize that the party
boss and his machine are not just a sideshow but “the essence of politics,” whose
aim is to get one up on the competition just like a trade association [ibid.,283].
In any case it looks as though the realities of democratic politics as described
by seasoned observers such as Schumpeter and Dahl require much more by way
of compromise than Singer bargained for when he talked about his third model
association representing some sort of fair compromise, with the result that he is
forced to concede that there may not be much carry-over from his model democratic
community to those with which we are familiar [ibid., 128]. The latter may well be
polyarchic, but that is no guarantee that they are fair. Moreover, as he concludes:
“some groups have less than an equal share of influence, while many people are
not effectively represented by groups at all” [ibid., 134]. To be sure, those same
theorists would think that Singer’s fair and equal compromise is nowhere to be
found, and the best we can hope for is a system open to more influence, such as
8
And the situation appears no different in Canada. According to Kheiriddin and Daifallah, the
Mulroney Conservatives proved no better than the Trudeau Liberals when it came to government
expenditure, and if anything they were more profligate [2005,21]
130
Dahl’s polyarchy, rather than a hegemonic, or autocratic one, though as Dahl notes:
“Some readers will doubtless resist the term polyarchy as an alternative to the word
democracy, but it is important to maintain the distinction between democracy as
an ideal system and the institutional arrangements that have come to be regarded
as a kind of imperfect approximation of an ideal” [1971, n.4,9].
Indeed, such institutional arrangements often appear to be far from any ideal,
despite having been the source of largesse to many and sundry supplicants. Tammany Hall, which began life as a patriotic social club, eventually became synonymous with political influence, graft and vote-rigging, as well as providing a helping
hand to Irish immigrants in return for political support. Perhaps Schumpeter had
Tweed of Tammany Hall in mind when he noted the importance of the political
boss and his machine, which Ackermann sees as a way of “fitting the lofty theories of democratic government to the rough realities of life” [2006,359]. Thus
confronted with the “rough realities” of everyday democratic life, Singer, whose
particular worry is that some will fail to be adequately represented in decisionmaking, so much so, that he is less than convinced at the end of his essay that a
democratic society produces stronger reasons to obey than a non-democratic one.
If this were ever true, and Singer never really showed that it was, it did not survive
the transition from his model society to the one in which most of us live.
Moreover,in the years since Singer wrote his essay, not only have the electors
continued to vote with their feet, but more theorists are now prepared to doubt
that democracy can be the source of authority, as Singer initially hypothesized.
Even if democracy is better described as polyarchy, as Dahl thinks, Singer remains
unconvinced, and as Narveson has pointed out, to the extent that democracy has
retained any appeal, it is because it is regularly identified with certain liberal rights
which flow from the basic right of all to liberty compatible with a similar liberty
for others, and not from democracy. On the contrary,as Narveson has recently
written, democracy hardly merits the exalted position where many have placed it,
but should rather be seen for what it is, everlasting interference in individual liberty
on behalf of special interests [2008, 133]. As already noted,one of the main problems
of democracy is that it is by definition majoritarian, which means, according to
Hardin,that “almost everyone loses on almost every vote in the sense that almost
all fail to get precisely or even approximately what they want” [2003,309]. Indeed
as Toqueville famously argued, life under a reasonably benevolent monarch might
be preferable to a democratic ochlocracy which confines its despotic acts to those
in the minority on any issue [2003, 298-299].
In fact Dahl responds to Tocqueville on this very issue, namely the supposed
threat to liberty posed by majoritarian democracy with its predilection for equality. Dahl attempts to clarify in what sense Tocqueville claimed that democracy
was likely to lapse into tyranny, that is, whether the tyranny consisted in some
sort of injustice perpetrated by the majority, or whether majority tyranny per se
constituted the injustice in question. Since he doesn’t think that Tocqueville has
been sufficiently clear about what democratic tyranny amounted to, Dahl proposes
that we look first at primary political rights, such as the right to vote or freedom
131
of speech as ways of bench-marking democratic performance. In the 150 years or
so since Tocqueville penned these observations, Dahl claims there is empirical evidence to suggest that such primary rights have expanded rather than contracted,
but agrees that what we make of such data will perhaps depend on theoretical
questions about the nature of these rights and their relation to democracy. Some
favour a doctrine of prior rights according to which such primary rights are both
anterior and superior to democracy or rights against democracy [1985, 25].
However, rather than construe these primary rights as independent of democracy and therefore as yardsticks against which democracy might be measured, Dahl
prefers to think of them in a manner “more consistent with democratic ideas” He
recommends that we settle upon one basic right, namely the right to self government, from which other primary rights can be derived. One of the main advantages
of this approach from Dahl’s point of view is that it heads off a direct challenge
between liberty and democracy which was at the centre of Tocqueville’s analysis.
Moreover, such rights are inalienable in the sense that any attempt to abridge them
would be tantamount to destroying democracy, in much the same way that Singer
thought that violation of essential democratic rights could undermine democracy
and provoke disobedience. Thus in response to a concern that, if it suited them, a
majority might be able to override the rights of a minority, Dahl claims that they
could not rightfully do so and would not be acting democratically if they did. Nor
can a majority decide to quit the whole programme since such a decision would be
incoherent [ibid., 29]. To the extent that Tocqueville implied by “tyranny of the
majority” riding roughshod over the rights of minorities, or selling the democratic
farm, Dahl thinks that he failed to appreciate the significance of primary political
rights within a democracy.
4.2.6
Rex nunquam moritur
However, Tocqueville thought that the transition from monarchy to democracy
does not remove the centralizing tendency of the state but rather that it will in
fact “widen and reinforce the powers of this same authority.” In fact the “art of
despotism” is even more easily practised under a democracy, and requires one single principle, namely equality [ibid.,789]. Thus it is not surprising that in the two
centuries since the revolution handed off command from a monarch to his democratic successors, Hardin would claim that “democracy has at best been limited in
the ways that it must be in practice in any real society and it has often been virtually irrelevant” [2003,290]. Indeed, as the Romans noted quite some revolutions
ago, rex nunquam moritur, the king never dies. Or as Hobbes wrote, there is one
sovereign, who at different times assumes the various guises of monarch, aristocracy or democracy, with little to choose between them “where any one of them is
already established,” since all three possess the absolute sovereignty that belongs
to the monarch [1909, 428]. While we are more interested in general questions as to
the possible basis for sovereign authority, there is a narrower legal sense in which
the monarch is never entirely absent even in a parliamentary democracy, such as
132
Canada, where Parliament includes the Queen and both Houses, while the Executive Government is vested in the monarch, with many of her powers delegated to the
Governor General. 9 With respect to the latter powers, Evatt thought that perhaps
the most important question was whether the sovereign or his representative could
override the advice of his elected ministers, and at least with respect to legislation,
it appears that the sovereign may indeed withhold assent, a view shared by more
recent writers.10 While such constitutional oddities can serve as a reminder that
the sovereign has only disappeared behind a democratic faade, exercises of the royal
prerogative are in fact fairly rare. More recently attention has been given to the
right of the Upper House or Senate, consisting as it does of appointed rather than
elected members, to withhold assent to bills originating in the elected Commons.
Tocqueville of course does not believe that the tendency to arbitrary rule is
confined to such lapses in democracy which are a throwback to earlier days of absolute monarchy. It is rather to be found in the regular use of sovereign authority
by democratic governments to advance the cause of what Mises calls “etatism,”
which holds its citizens in “tutelage” and substitutes state initiative for that of
the individual [1985,46]. Or, Tocqueville a century or so earlier, having premised
that democracy was likely to bring in its wake forms of tyranny unknown in earlier
centuries, spoke of an immense paternal authority whose aim was to the monopoly
provider of its citizens needs and thus “to keep them in perpetual childhood” He
sees democracy as some sort of “compromise between a despotic administration
and the sovereignty of the people” whose mistake is to “think that they have sufficiently safeguarded individual freedom when they have surrendered it to a national
authority” [2003,805,807].
Of course, with the benefit of another 150 years since Tocqueville wrote, it
now seems quite clear that democracy, which traditionally has claimed to embody
the sovereignty of the people, has indeed proved the source of enslavement that
he predicted. However, Dahl responds, no doubt in a manner “more consistent
with democratic ideas,” that when we review the historical record to see whether
any actual democracies had succumbed to the despotism predicted by Tocqueville,
relatively few have done so, if we are talking about countries which began life as
democracies, but later fell off the wagon and ended up as dictatorships. Dahl concludes that with the exception of Uruguay, in countries such as Argentina, Germany
or Spain, the decline into despotism had mostly to do with the fact that democracy
was not as firmly rooted as in other countries which did not suffer a similar fate.
As we saw earlier, Dahl claimed that Tocqueville had not made it clear whether
in speaking of democracy resulting in majority tyranny he was referring to specific
injustices brought about by majority rule or to the fact that democracy per se
could be every bit as tyrannical as the hegemonies it replaced.Tocqueville, it seems,
inclines to the latter, pointing out that whether rulers are anointed by divine right
or by election, they believe that it is in the nature of things that some rule while
9
10
cf Forcese & Freeman [2005, 10]
cf. Evatt,[1967, 2,286]; McWhinney, 2005, 27]
133
others obey, and better they than others less fit. Tocqueville’s concerns about the
rule of the majority were not new when he raised them half a century or so after
the American republic had thrown off the tyranny of George III. Plato had raised
similar issues, when Thrasymachus argued in The Republic that might was right,
and that the rulers make laws in their own interest, not in the interest of those they
rule.11
Several years after Tocqueville, and within weeks of the 1848 Revolution in Paris,
Proudhon expressed little faith in the democratic dogma about the right of people
to govern themselves much celebrated by Dahl, since “there is not and can never
be legitimate representation of the People.All electoral systems are mechanisms
for defeat” 12 And as Mill famously remarked a decade later, self government is
actually a misnomer, since what we really mean is not “the government of each by
himself, but of each by all the rest”; as a result we would have to guard against
the tendency of the rest to tyrannize the minority [1988, 62]. Indeed,when it comes
to governments, democratic or otherwise, it is by their power to coerce that we
shall know them. Thus Plamenatz shared Tocqueville’s sentiment that there was
no guarantee that government by consent would be any less coercive than the
absolutism it had replaced, but rather that present day governments acting in the
name of the people have proved to be “never more often or more widely oppressive”
[1968, 175,181].
In the case of the suppression of minority opinion Mill thinks that government
can all too readily convince itself that in doing so it speaks with the voice of
the people, whereas Mill considers the right of the government to coerce to be
illegitimate, whether the majority supports it or not [1974, 76]. Similarly Bovard
rejects the view that coercion becomes acceptable because democracy permits us to
elect our coercers [2005, 225]. Indeed, the error that democracy amounts to nothing
more than the right to govern ourselves, a notion which Dahl thought we should we
should receive with enthusiasm, implying that in obeying the edicts of government
we are only obeying ourselves, can be traced back at least to Hobbes, who held
that in accusing the sovereign of wrong was tantamount to accusing oneself [1909,
136].
It is interesting to note that Singer characterizes Dahl and Schumpeter as revisionists or realists in political theory, who are largely responsible for his concluding
that any actual democratic government is but a poor reflection of his ideal common room association.However, both Singer and his mentors stop short of the more
thoroughgoing skepticism of some of the writers we have mentioned. The former
seem to have assumed that government, like the poor, is with us always, as well
as the fact that democracy is quite high on the evolutionary chain of government,
with the odd banana republic that relapses into an earlier stage being the exception
that proves the rule.
As we saw, Dahl seemed anxious to avoid putting democracy on trial and to
11
12
cf.Narveson [2000a, 17]
in Hoffman,[1970, 60]
134
avoid any suggestion from people such as Tocqueville that there might be better
ways to preserve liberty than to hitch it up to the democracy bandwagon. According to Dahl, democracy contains all things necessary to salvation, and instead
of addressing the question as to whether democracy is compatible with a right to
liberty, he offers us the right to govern ourselves, a right which Proudhon decided
long ago was largely empty. Provided we stick with the program, and refrain from
heading off into the jungle like Colonel Kurtz in “Apocalypse Now” to try our hand
at a little despotism, then all our needs will be ministered unto by Tocqueville’s
“immense and protective power.” Indeed, in one of his more recent essays, Dahl
responds to skeptics that rumours as to the demise of democracy have been greatly
exaggerated; although the institution is not in the best of health it has proved remarkably resilient [1998, 188]To such a resounding affirmation of the faith one can
only ask with Schumpeter how such a doctrine whose falsity is known to all can
have persisted to this day [ibid., 264-265].
Dahl is right that there has been no shortage of commentary to the effect that
democracy is in some sort of crisis. Harold Laski wrote 75 years ago that legislatures
were in need of much reform; as for minority governments of the sort found in
Canada of late, he found that they tended to pursue policies which they hoped
would keep them in office rather than those they actually believed in. Majorities
on the other hand condemn the opposition to years in the wilderness[1933, 77,78],
and lead to complaints about the country degenerating into a one party state. The
fact that governments have often been elected by less than a majority of the voters
leads Gibson to suggest that in fact it is the majority which is being oppressed by
the minority, particularly when parliamentary rules create a virtual dictatorship
between elections [2003, 8,13].
As for Dahl’s claim that democratic institutions once established have tended
to prove very resilient, it would appear to follow from what Hardin calls “the
marginal workings of democracy” that so called democratic institutions are simply
a sideshow, and that what is important is “a generalized background coordination
on order” [2003, 280,281]. In fact Hardin finds that “majoritarian democracy is
both conceptually and motivationally flawed” which suggests that Dahl’s supposed
resilience of democratic institutions may therefore simply be the result of what
Hardin describes as “a compromise to live within the constraints of these perverse
conclusions” [1990, 157]. We have already referred to the difficulties in deriving a
collective preference from diverse individual preferences, first formulated by Arrow,
for example, where among the three possible choices x, y, and z, we end up with the
odd result that x will be preferred over y by a majority, y over z by a majority, and
z over x by yet another majority [1967, 227]. Lest we think that such a paradox
might be merely a theoretical curiosity or perhaps peculiar to some fault in majority
voting, Arrow reminds us that its implications are so general as to render impossible
any rule for deriving social choices from a set of individual preference orderings.
Thus Hardin concludes that the belief that social choice procedures occasionally
work is not based on any very clear understanding of how they do, while plausible
instances of such choices “turn on nondemocratic, coercive and deceptive moves
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too much of the time for us to feel normatively at ease with it. Not only may
minorities get trampled, but so may majorities. Within a democratic shell even the
seemingly most democratic of modern governments may often be undemocratic”
[ibid., 164]. However, as we saw in the previous chapter, Hume thought that the
magistrates never let such quibbles stand in the way of getting things done: “Thus
bridges are built; harbours open’d; ramparts rais’d; canals form’d; fleets equipp’d;
and armies disciplin’d;” [1960, 539]. Though, Hardin rightly thinks that Hume’s
“lovely vision” of a government which miraculously escapes the manifold frailties
of the individuals who comprise it, only to shower blessings upon its subjects, is
not quite sufficient to justify overriding the wishes of those who did not necessarily
seek the largesse in the first place, or who might have benefited, had it come their
way instead. While government might overcome a collective action problem, there
is always a question as to whether it overcame the right one, and whether it is
justified in coercing those who thought that if any collective solution was needed,
this certainly wasn’t the one [ibid., 165].
Of course the reason we end up with q and s rather than p and t may be
due to any one of a number of maladies, such as those suggested, for example,
by Seldon, and to which we have already had occasion to refer, such as a voting
system which tends to frustrate voter preferences, while promoting rent seeking,
log-rolling, bureaucratic interests and the taxes necessary to pay for them [2002b,
134]. Thus Hardin comments that even assuming knowledgable voters, there is
no reason to believe that their preferences are tracked by voting outcomes [ibid.,
166]. Thus Hardin is not reassured by Churchill’s oft quoted bromide. As an a
priori claim it is of little use if, as he suspects, the doctrine of majority rule is
conceptually incoherent. Considered as an empirical claim there is the problem of
a lack of coherent principles by which to support the supposed superiority of certain
forms of government over others [ibid., 170].
On the question of basic political rights which Dahl so graciously vouchsafed
us, on the ground that to do so would not upset the democratic apple cart, Jasay
rightly notes the emptiness of any such justification: “If a move gives more power
to many and less to but a few, more will like than dislike the move. That is all
there is to it. What is the point of baptizing the simple consequence of rationality
a “liking for democratic values” [1998,134]. ” Of course we could also add that
such a move, rather than actually giving more, only has to appear to give more to
many and less to a few.
As to democratic rules, which either refer to the sorts of rights Dahl claimed
were implied by the basic right to self-government, or to ways of operationalizing
such rights, in the context of whether democracy is to be seen as a process or
end result, Jasay remarks that “the democratic rules are not such that, provided
only they are applied, reasonable men would be bound to agree that what they
produce is democracy” He notes further that the term “democratic” has become
largely devoid of meaning, having been equated in recent political discourse with
“the good life,” about which he observes that: “It also follows from the conception
of democracy as the good life, that it may be necessary and justified to violate the
136
democratic rules in the interest of the democratic result” [ibid., 139]. Someone who
loses an election might claim, for example that the rules as presently constituted
should be overridden because they were not conducive to a democratic result, having
manifestly failed to preclude unfairness, caused perhaps by an unsympathetic press,
or other ways in which the playing fields of Eton are thought to have become
notoriously uneven of late. Politicians have now taken up the prophet’s call for the
crooked to be made straight and the rough places plain, for which, as Narveson
reminds us, they do not hesitate to call on ever larger portions of private wealth to
accomplish their divinely appointed task [2002a, 175].
With respect to the concern that a majority might decide to do away with
democracy, Dahl, we may recall, offered the rather unconvincing response that
though a majority might empirically do so, logically they could not, or at least
not “rightfully.” Jasay, on the other hand, thinks the worry a genuine one, which
does not admit of any pat answer. Rather we would consider any such decision in
the light of feasible alternatives rather than resorting to simplistic pronouncements
of the “democratic because democratically arrived at” type [ibid., 138]. Indeed,
Narveson thinks that there is nothing whatever preventing a majority from doing
whatever it pleases, including throwing away the democratic scaffold by which
it ascended to power, and in this respect a majoritarian democracy is no more
trustworthy than any other form of government. Contrary to Dahl, Narveson argues
that there is at least one right logically prior and morally superior to democracy or
the right to self government, namely liberty. Like Tocqueville, there is for Narveson
a question as to whether democracy preserves liberty, and generally it doesn’t,
since it has it in common with any form of government that it is in the business of
coercion. It therefore hardly seems to place much of a constraint on democracy to
insist that it act democratically, if for no other reason than, as Jasay pointed out,
it is by no means clear what it is to make such a demand. Thus Narveson responds
that Dahl is wrong in assuming that democracy is simply to be desired for its own
sake;if we want democracy at all, it is because ends we seek are better attained
democratically than by some other means.13
4.3
Liberalism v. Democracy; recent trends
While earlier classical liberals such as Hayek and Mises would probably not have
disagreed with much of our criticism of democracy, they generally felt that democracy represented something of an improvement over absolute rule, though, as Hayek
warned us, the supposed antidote to arbitrary power, if not itself constrained by
liberal principles, might well become yet another arbitrary power [1978, 106]. Mises
for his part rejected as nonsense the view that only monarchs are evil and capricious, while the people are pure and uncorrupted; nevertheless, he thought that
democracy provided a mechanism for orderly and non-violent changes of government [1996,42]On the other hand, we have been suggesting that it is no longer clear
13
cf. “Liberalism v. Democracy,” 6
137
that democracy is as compatible with liberalism as Mises and Hayek may have
thought. As Narveson puts it, liberalism is finally incompatible with democracy,
since: “Given the choice between doing what you want, on condition that it harm
no one else, and being forced to do what a lot of your fellows want, what argument
can be adduced for generally preferring the latter” [2002a, 175].
Hoppe also holds that democracy has little to be said for it, and if we are going
to have a state at all, a real monarchy without the democratic posturings is likely
to offer both economic and moral advantages [2002, xx]. With monarchy come
the benefits of privatizing government, since the monarch is less likely to squander
the resources of the realm he owns. Similarly, Hoppe contends, he is likely to be
more moderate in the expropriation of his subjects, since to do otherwise would kill
the goose that laid the golden egg, that is, cause a decline in the productivity of
his subjects and therefore in his “parasitic monopoly of expropriation”[ibid., 19].
A democratic ruler, on the other hand, while he can and typically does use the
government to his personal advantage, does not own it, unlike the monarch. The
democratic leader is under no pressure to preserve the capital of the realm, and
even if he wished to do otherwise,”he could not, for as public property, government
resources are unsaleable, and without market prices economic calculation is impossible” The democratic steward has no incentive to moderate his expropriation,
because unlike an hereditary monarch, he is not in the business for the long haul.
He has nothing to gain from moderating his confiscation of the country’s resources,
since “for a president, unlike for a king, moderation offers only disadvantages [ibid.,
24].
To be sure, one might respond that the possibility of being turfed out at the next
election should act as a brake on the profligacy of democratic rulers. On the other
hand, as Hoppe suggests, elections may simply spur them on to seek rents while
the sun shines; or they can always appeal to the need to provide what Juvenal considered particularly close to the heart of every Roman, panem et circenses. About
the latter Narveson comments that democratic perks are typically at someone else’s
expense, a fact which political grandstanding mostly obscures [2002a, 175]. Then
again, providing bread and circuses, or their even more costly contemporary analogues, requires the raising of vast amounts, which governments typically do via
taxes or debt instruments of one sort or another. We saw in the previous chapter
that direct taxes on income, for example, were a relatively recent phenomenon, for
which there appeared to be no satisfactory justification.
But given that modern governments have also granted themselves a licence to
print money, they regularly resort to this more recondite method of financing their
pet projects. As Mises has noted, this inevitably causes inflation, since more money
for the same basket of commodities increases demand and therefore prices. This
is not to say that there aren’t some beneficiaries whenever it rains dollar bills.
Those directly involved in the project for which the new money was printed stand
to gain, e.g., materiel manufacturers during wartime, whereas those much lower
down the feeding chain, such as teachers and clergy during World War 2, were at
a disadvantage because their salaries took much longer to catch up [2000, 58,61].
138
Mises emphasizes that although some do better than others under inflation, they
can hardly be reproached for “profiteering,” since it was the government which
decided on a policy of inflation, not that it would ever call it by its real name [ibid.,
63].14 While Mises also thought that governments would be eventually forced to
abandon inflationary policies or face catastrophic currency failure, as in Germany
in 1923, or Zimbabwe in 2007, Rothbard is less sanguine, believing that the only
alternative is to replace the fiat currency of the politicians with something they
cannot so easily manipulate, such as the gold standard [1990, 111].
In the light of Hoppe’s earlier remarks we should inquire as to whether a democracy is more likely to debase the coin of the realm than a monarchy. Hoppe in fact
admits that monarchs did tend to enrich themselves by monopolizing the mint and
“coin clipping,” beginning with the foundation of the Bank of England in 1694.
Indeed, it seems that relatively few empires, with the exception of the Byzantine
from about 500-1000AD, have managed to resist the attempt, at least from time
to time, to corrupt gold or silver with base metals. However, in general not even
kings managed to establish monopoly fiat currencies,[ibid., 57]which we have had
since the US finally abandoned the gold standard in 1971.During this period the US
debt has risen from 370 billion to over 10 trillion by the fall of 2008, which Hoppe
considers to be evidence of the “present orientation” of Republican democracies, as
illustrated by Keynes’s celebrated dictum that “in the long run we are all dead,”
and which for Hoppe epitomizes the democratic ethos [ibid., 59,n.25]. Kant, for
his part, thought that the ability to rack up vast amounts of offshore debt in the
service of war, as opposed to national infrastructure, was an important stumbling
block to peace, and should be subject to international interdiction [2003,4-346].
4.3.1
The democratic peace
Having raised the subject of war, let us address another issue, which for many
has been considered at least since Kant and Tocqueville as an important article of
the democratic faith, namely that unlike war-mongering monarchs down through
the ages, democracies are slow to wage war, and typically avoid wars with other
democracies. Although Kant has been thought to favour such a view, his position is
a little more complicated, since he sharply distinguishes republican from democratic
constitutions, with the former being characterized by the separation of the executive
power from the legislative [ibid.,10-352]. The republican constitution, Kant claims,
is more conducive to perpetual peace because consent of the populace is needed
to wage war, which will allow them to fully consider the costs, including postwar
reparations. However, under a non-republican constitution it is much easier to
resort to war, since the prince is the nation’s owner rather than a citizen and is
as likely to give as much thought to opening hostilities as he might to going on a
hunt [ibid., 9-351]. Of course, with respect to the people acting as a check on their
14
Despite the government’s complicity in the present financial crisis they have kept a watchful
eye out for what they consider “profiteering,” such as executive compensation or short-selling.
139
leaders, as Radnitzky points out, this requires voters to be much better informed
about the justification and costs than they typically are [2003,178].
Interestingly, since it supports what we have argued above, Kant considers
democracy to be a form of despotism, being necessarily majoritarian and relying
upon the incoherent notion of the general will: “it sets up an executive power in
which all citizens make decisions about and, if need be, against one (who therefore
does not agree); consequently, all, who are not quite all, decide, so that the general will contradicts both itself and freedom” [ibid., 10-352]. While Kant thought
it reasonable to conduct citizen military training he thought that standing armies
were likely to cause wars and should be demobilized [ibid., 3-345]. Writing some 40
years later, Tocqueville was of the opinion that all countries, including democracies,
could find themselves at war,and therefore would require an army. However, while
the officers’ corps of old Europe had been reserved for the aristocracy, whose social
status was more important than an army career, the armies of democracies exemplify Napoleon’s dictum that: Tout soldat français porte dans sa giberne le bâton
de maréchal de France. While the nobleman was motivated by noblesse oblige, the
possibility of attaining the field marshal’s baton, facilitated by Napoleon’s principle of la carrière ouverte aux talents was what drove the soldiers of democracies.
Peace of course is not conducive to promotion since there is nothing like a war to
clear the market for officers. Thus Tocqueville reaches what he considers the rather
paradoxical conclusion that “of all armies, the ones most keen upon war are those
in democracies and that, of all the nations, the ones with the greatest attachment
to peace are democracies. What finally makes this extraordinary is that equality
produces both these conflicting results” [ibid., 753].
Hoppe agrees with Tocqueville that democratic armies may be even more bellicose than those commanded by a monarch, while drawing different conclusions
from Kant about the royal owner of the nation. In Hoppe’s view a king desirous
of expanding his realm, unlike a president, does not have war as his only option.
The former may unite kingdoms through marriage, an option not available to the
non-state owner president, whose treaties or contracts with other governments may
be revoked by his successors, if not by him when politically expedient. Moreover,
the king’s wars are much less likely to be ideologically motivated than to be over
expanding his real estate holdings [ibid.,34]. But as Howard observes the more more
popular war became, it also became more violent, whereas those, for example, of
the ancien rgime tended to be limited at the very least by cost [ 2002,33]. Hoppe
argues that the democratic-republican temper of the French Revolution found a
champion during World War I in Woodrow Wilson, who sought to use war to make
the world safe for democracy [ibid., 41]. The Wilson doctrine has been reiterated
by later presidents, including for example, Bill Clinton who claimed in his State of
the Union Address in 1994 that the US should support the advance of democracy
throughout the world because “democracies don’t attack each other,”a view which
Radnitzky claims has become a shibboleth of American foreign policy [ibid.,185].
Eland finds that paradoxically this amounts to “fighting perpetual war in the quest
for perpetual peace” [2004, 42], while Kant thought that we would do better to
140
foster trade among nations rather than war, since most people favoured the former
rather than the latter [ibid., 25-368].
Rothbard writes, however, that we are still labouring under the Wilsonian delusion that,unlike dictatorships, democracies do not start wars, and in doing so, we
falsely assume that domestic policy is a clear guide to foreign policy.t historical lesson, namely that a country’s domestic policies need not be any guide to its foreign
policies, since “many dictatorships have been passive and static in history, and,
contrariwise, many democracies have led in promoting and waging war” [1966, 2].
Because the Wilsonian myth is seen to be politically correct 15 , a president may
have a more difficult task than a dictator and therefore need to resort to greater
manipulation and subterfuge. This will typically involve the characterization of the
enemy as non-democratic, a charge which will generally not be that hard to make
out, if the The Economist Intelligence Unit’s index of democracy is right that only
13% of states are fully paid up members of the democratic club.
Moreover, a president may have to devote considerable effort to selling a war,
and in the case of the Iraq war, we never seem to have gotten beyond the sales
propaganda. As Creveld comments, we are still left guessing as to the reasons for
the Iraq War [2006, 246]. Pea claims that the war on terrorism has been subject
to “mission creep” where the Bush administration was able to sidestep the original
congressional mandate largely by ratcheting up rhetoric from WMD to the “the
axis of evil,” whereas the actual threat from either appeared to be minimal [2006,
10]. According to Radnitzky, one of the ways that a democratic president can
circumvent constitutional oversight and assume personal control of foreign policy,
much as monarchs of the ancien rgime were wont to do, is to claim that the enemy
fired the first shot [ibid., 181]. In the case of Iraq one might hold the view that
Sadam was involved with those that did, or that a preemptive strike was necessary
to prevent his firing first. In fact such a preemptive rationale for the attack on
Iraq was propounded by the US administration and has come to be known as the
Bush Doctrine, despite that fact that Clinton had authorized at least three such
actions.16
Indeed in some of the discussion prior to the Iraq war one commentator offered
yet another version of the pax democratica, namely that democracies, in particular
the US, do not fight preventive wars.17 Dershowitz responds that preemption is
somewhat of a paradox:”When it is employed successfully, we rarely can be sure
what it prevented. When it is not employed, it is difficult to assess if it could
actually have prevented the horrors that did occur” [ibid., 159]. However, at least
in the case of Nazi Germany he is inclined to say that in hindsight the democracies
should have taken preventive action against Germany. While rejecting analogies
between Hitler’s Germany and Sadam’s Iraq as flawed, he does not wish to rule
out cases where preventive action by a democracy could be justifiable [ibid., 160].
Again, Radnitzky emphasizes that while it may not be the case that democracies
15
cf.Radnitzky, ibid.,184
cf.Dershowitz [2006, 157]
17
cf.Dershowitz [ibid.,159]
16
141
are more reluctant to go to war, preventive or otherwise, a democratic president has
more legal and political hurdles to overcome than a dictator [ibid., 181]. No doubt
launching a war against Sadam when he could not have posed much of a threat
following his rout in 1991 18 required considerable political shrewdness on the part
of the Bush administration. Sometimes duplicity is used to provoke others, such as
allies or enemies, into action. Thus, according to Raico, it now appears likely that
Churchill engineered the sinking of the Lusitania in 1915 in order to bring the US
into World War I. 19 Similarly, Denson accuses Roosevelt of provoking the Japanese
attack on Pearl Harbor and withholding information which might have prevented
it [2006, 102].
As for Clinton’s version of the pax democratica that democracies do not go to
war with one another, as Radnitzky points out, it is falsified by the American civil
war itself, a war of secession between two democracies with the same currency
[ibid., 191]. Nor is there any reason to think that Wilhelmine Germany was any
less of a democracy than the UK, and indeed as welfare states go, Germany was far
ahead of Britain. Indeed President Wilson provided a demonstration of democratic
totalitarianism which the Kaiser could only wish to have emulated, instituting a
system of neighbourhood watchers who would report suspicious individuals.20 In
fact much like Tocqueville, Radnitzky sees totalitarianism as being at the very core
of democracy and particularly evident in its ability to concentrate power during
a supposed crisis. German industries under Albert Speer were for example less
tightly regulated than those in the US, with consequent reduction in US output
[ibid.,182]. According to Radnitzky such totalitarianism is supported by the quasi
religious democratic ethos which treats the results of an election “as if they contain
revealed knowledge, revealed by the new deity, the People, king Demos, the Vox
Populi ” [ibid., 188].
Thus war is undertaken as a democratic jihad which often results in prolonging
hostilities until the infidels have been wiped out or made to see the error of their
ways. Taylor informs us that those who entered World War I to make the world
safe for democracy were in no great hurry for an armistice, but were willing to fight
on until Germany offered an unconditional surrender [1964, 45]Radnitzky again
contends that since wars waged by democracies are more ideological they also tend
to be harsher and more difficult to finish than those of autocrats. Roosevelt’s
enthusiasm for democracy apparently did not get in the way of friendship with
Stalin, though like his predecessors, it probably prevented his being in a hurry to
end the war [ibid.,181, 192].
As for cruelty, democracies could more than hold their own when it came to the
bombing of civilians. American insistence on unconditional surrender prolonged
the Pacific war and resulted in the nuclear bombing of Japan. Terror-bombing of
German cities authorized by Churchill killed about 600,000 and injured another
18
cf. Creveld [ibid.,246].
”Rethinking Churchill,” in Denson [2003,332]
20
cf. Nisbet [1989, 44-46]
19
142
800,000, compared to about 70,000 killed in raids on Britain. Nevertheless, according to Gilbert, Churchill thought there were a couple of important differences
between parliament and a dictatorship, namely that the former avoided “fisticuffs”
and acted as the “controller and, if need be, the changer of the rulers of the day”
[2006, 134]. Throughout his long career Churchill appears to have relished the many
opportunities for wielding power, from First Lord of the Admiralty to Prime Minister, which according to Raico, allowed him “to live a life of drama and struggle and
endless war” Indeed, Raico’s final assessment of the great champion of parliamentary democracy is that he was “a man of blood and a politico without principle,
whose apotheosis serves to corrupt every standard of honesty and morality in politics and history”21
Talmon once claimed that there were two types of democracy, the liberal and
the totalitarian. The former is called liberal because of its emphasis on freedom,
whose essence in Talmon’s view is in “spontaneity and the absence of coercion”
Totalitarian democracy, on the other hand, he considers to have Messianic mission
in postulating as the ultimate goal of humanity “a preordained, harmonious and
perfect scheme of things.” While liberal democracy holds that we will gradually
succeed to a more harmonious state without coercion, totalitarian democracy has
a sharper vision of that ideal state, and has much less hesitation in using coercion to reach it, since it finds no conflict between coercion and the democratic
principle [1970, 1-3]. Indeed, it would appear that it is the second, or totalitarian
version which has gained the ascendancy, one whose lineage can be traced to the
“Committee of Public Safety governing in a Revolutionary manner with the help
of the Jacobin clubs, and the Babouvist Secret Directory supported by the Equals”
[ibid., 251]. Gottfried considers the central feature of the Revolution to be the
fact that people were killed in the name of democracy, a tradition which he now
finds exemplified in “the aggressive behemoth spouting therapeutic bromides that
all of us have come to recognize as the perfected version of American democracy”
This latter day descendant, which owes more to the French Revolution than the
Founding Fathers is moreover “a dangerous mixed regime, which upholds neither
liberal freedom nor democratic self-rule. It is the hegemonic ideology of the American political class, invoked to justify the seizure of power by public administrators,
privileged corporate interests, social therapists and mediacrats.” 22
4.3.2
Democracy and property
If latter day liberalism and democracy have not shrunk from war, nor have they
been averse to commandeering the resources necessary for the various wars and
crusades undertaken by the state against both internal and external threats. Thus
we should perhaps not be surprised to see a diminishing respect for property rights,
which Gottfried also recorded, and of which the Canadian Charter provides a good
21
22
cf.“Rethinking Churchill,” in Denson [2003, 360]
In Denson,[2003,426-427,429]
143
example, where protection of the life, liberty and security of the individual does
not extend to the individual’s rightfully acquired property. Even if it did, it would
doubtless be subject to the notable proviso that it be limited by what “can be
demonstrably justified in a free and democratic society,” despite the fact that, as
Jasay noted, “no majority vote can settle questions of justice” [1998,169]. In fact,
Jasay writes that private property used to be seen as reinforcing the bulwarks of
civil society against the state and therefore an important institution for both owners
and non-owners [ibid.,144]. 23 Or as the historian, Pipes, puts it, property has been
the single most effective device for ensuring both civil rights and liberties, marking
out a sphere in which the individual is sovereign [1999, 281]. Thus, according to
DeSoto, property was essential to the production of capital in the West: “the legal
property system became the staircase that took these nations from the universe of
assets in their natural state to the conceptual universe of capital where assets can
be viewed in their full productive potential” [2000, 51].
Despite the clear benefits to all of a propertarian regime, sovereign democracy
can override title in any way it sees as “demonstrably justified” 24 As observed
earlier, Rex has not departed the political scene but has simply appeared in new
finery, and as Jasay points out, about all the legum leges or constitutional charter
guarantees, is that “the threat to people’s liberty and property can just as well
come from the sovereign people as from the sovereign king. The danger, then, lies
in sovereign power and not in the character of the tenant who holds it” [ibid., 208209]. One of the chief sovereign prerogatives is what has latterly become known as
redistribution, and which appears to be derived from earlier granting of land and
privilege based on meritorious service to the monarch. According to the medieval
constitution, as mainly revealed in its land law, “All land is held of the king,” though
the king may grant tenure to his subjects, for example, for military service, or
perhaps knight service, which meant limited war service as a fully armed horseman.
There was considerable disagreement between king and barons as to the scope of the
latter, the upshot of which was that, unlike modern conscription, it did not imply
overseas service. Unlike modern democracy, medieval sovereignty was subject to
increasing limitations beginning notably with Magna Carta. 25
However, as Jasay reminded us, sovereign democracy knows no such bounds,
supported as it is by the fiction that majority rule in its various manifestations is
a direct pipeline to yet another fiction, namely the common good. Or as Salin has
put it, democratic procedures are self justifying, assuming as they do that there
is a way of ascertaining a demand for collective goods or that there is a common
good which has priority over individual rights [2000,112]. The redistributive state
possesses a vast array of goods to hand out as it sees fit to all and sundry, the most
notable feature of such transfers being that they benefit some at the expense of others, or as Jasay writes, the state robs Peter to pay Paul, being apparently unable to
23
Among the non-owners having interests are bankers, governments of one sort or another and
other suppliers of goods and services: cf. DeSoto [2000, 51].
24
cf.Jasay [ibid., 144]
25
cf. Maitland [1965, 23-26]
144
contemplate a Pareto improvement where Paul’s lot would be made better, but not
at Peter’s expense [1998, 255,149]. On the contrary,democratic competition necessarily makes some winners and others losers; benefits to one particular group are at
the expense of some other group. Indeed, as Jasay further points out, “Democracy
is a generalized and impure version of the elementary three-person pure distribution
game. In that game, the distribution of the game sum among the three players is
what any two of them agree on. This has the well-known result of producing, each
time the game is played, a coalition of two players that redistributes the available
sum in its favor, to the detriment of the third player” [2002, 110].
Of course we might ask why Pareto improvements where some gain and none
loses are preferable to non-Pareto solutions where some gain while others lose. Jasay
replies that, provided we can ignore envy, the former are “ipso facto good,” since
some have ended up better off and no none worse off, while the latter would require
an argument as to what was good about them, since some have been harmed as
a result. As for the prospects of ruling out envy, as we have already had occasion
to remark, Lucas thought that, at least for the egalitarian, they were rather dim
[1971, 150]. With respect to the frequent assimilation of inequality to injustice,
Schumpeter, in a noteworthy obiter, believes we have democratic rhetoric to thank,
which has been “instrumental in fostering the association of inequality of any kind
with “injustice” which is so important an element in the psychic pattern of the
unsuccessful and in the arsenal of the politician who uses him” [ibid., 254, n.3].
In addition to the general Pareto objection against redistribution, Jasay mentions a couple of others. First is the fact that the government’s duties to protect
rightly held property conflicts with its supposed democratic mandate to redistribute
that property to others. Further, those such as Schumpeter’s “unsuccessful” who
press their eleemosynary petitions upon the emperor, may not always find sovereign
power so beneficent since recipients of the sovereign’s favour today may fall from
grace tomorrow [2002, 84-85]Or as Milton Friedman pointed out, once you invite
the state to legislate against discrimination, the same power accorded to the state
can also be used to discriminate, as in the Nuremberg or Jim Crow laws [1962,
113].26 Thus when it claims to offer protection, the only hazard the state does
not protect against are those inflicted by itself, which, contrary to what Walzer
thought, are not confined to banana republics or “people’s democracies” [1983, 83].
4.3.3
Hayek and the state
If war is “the health of the state,” democratic or otherwise, being the citizen of one
could well prove dangerous to one’s own health. In fact the past millennium from
the Norman Conquest to the present day has proved singularly fatal to millions,
with the 20th century being the bloodiest of all. Indeed, Denson has estimated that
some 170 million were killed by governments, of whom 60 million died in the two
26
Thus the Jeffersonian principle that a government big enough to give you everything you want
is strong enough to take everything you have.
145
World Wars [2003,17]. With respect to the latest enthusiasm of the war and welfare
state, the so-called war on terror, Robin has also observed that when the war on
terrorism comes to an end we shall still be living in fear of our own governments
who will have managed to dispose of any threat except that posed by themselves
[2004,25]. Both war and welfare require the coercive redistribution which has come
to be the hallmark of the contemporary state, despite the arguments that have been
leveled against it.
Although as we mentioned at the outset, Hayek was on record as wishing to keep
coercion to a minimum, he does not think that maximizing liberty will rule out all
government activity, since there are supposedly non-coercive activities, which it
would be reasonable to support by taxation [1978, 257]. Hayek seems to think that
there is some way to determine which actions of government are coercive, and which
are not, other than by asking whether or not a proposed action would infringe upon
someone’s liberty, which we are not entitled to do unless that person threatens to
harm someone else. Government coercion could be justified on similar law and
order grounds, namely to neutralize threats from those proposing to harm others,
a justification which Sumner has, for example, reaffirmed as a reasonable approach
to regulating freedom of speech [2004, 185]. Sidgwick calls such a criterion for
government intervention by its then fashionable name of “Individualism,” according
to which others are owed only duties of non-interference, and compensation in the
case of harm [2005, 43].
However, Hayek reminds us that modern governments have never just confined
themselves itself to the “individualist minimum”[ ibid., 257],influenced perhaps by
Sidgwick’s view that individualism or libertarianism will not deliver “the attainable
maximum of social happiness” [ibid.,44]. Hayek argues that all modern governments
charged themselves with the welfare of the unfortunate, as well as with health
and education [ibid.]. To which we would respond that indeed they have, though
generally with little to show for the enormous expenditure. The political takeover of
private charity, as Seldon observes, is no exception: “Politicised collective charity
through taxation has not only diminished the charitable instinct to succour the
needy but also weakened the financial self-help of the family” [2002,86]. 27
In our view, of course, nothing whatever follows from what recent governments
have found themselves inclined to do. Similarly we reject Hayek’s claim that it
is possible to supply needs collectively without affecting liberty [ibid., 257]. Since
collective action is mostly synonymous with government action, it by definition restricts individual liberty, even though Hayek holds that “government may, usefully
and without doing any harm, assist or even lead in such endeavors” The criterion
Hayek proposes for separating the non-harmful or non-coercive functions of government from the coercive and undesirable ones is that of “the rule of law” which
means “freedom under the law” as opposed to “the absence of all government action.” Thus we can distinguish the coercive measures of government from services
27
cf. Whelan’s suggestion that if we could rediscover the motivations driving the private production of welfare before state takeover, we might be able to solve “the enormous problems which
are posed by an over-stuffed and under-performing welfare state [1996,98]”
146
such as health and sanitation, which do not involve coercion, or do so only to the
extent that taxes are required to support them. In Hayek’s view the provision of
such services only becomes coercive if the government acted as monopoly provider
[ibid., 220-223].
Working back from the last point, we argued in the previous chapter that once
government decides there is a need for it to supply a service, before long it assumes
it has an exclusive right to do so, just as it assumes it has an exclusive right to
coerce compliance. The supposed importance of the need in no way mitigates the
coerciveness of the taxation, for as Jasay writes, taking money and giving it to
others is redistribution, regardless of the motive [2002, 90]. As for the benefits of
the rule of law adduced by Hayek, where “all coercive action of government must be
unambiguously determined by a permanent legal framework” [ibid., 222], as Jasay
has pointed out recently, it is not clear the “legal framework” really acts the way
many theorists claim. According to this received view, the state ensures that we
do the right thing by providing monopoly enforcement, which we pay for, not only
because we have to, but because this is supposedly the most efficient way to stave
off social breakdown. However the monopoly is subject to the all sorts of political
restrictions, with the result that it rarely delivers what it promises. Further because
enforcement are financed by taxes they invite free-riding by individuals downloading
responsibilities onto the state that “in a well-ordered society they could and would
themselves carry on their own behalf or for neighbors, partners and peers” [2007,
1].
It should also be noted that Hayek is aware that the main concern of public
finance “ has been from the beginning to raise the largest sums with the least
resistance” This has gone hand in hand with “ an endeavour to outwit the taxpayer
and to induce him to pay more than he is aware of, and to make him agree to
expenditure in the belief that somebody else will be made to pay for it” As opposed
to the Murphy/Nagel approach discussed above, the one way to counteract the law
of growing public expenditure is not to have needs determine taxes, but the other
way round. Hayek believed government should be reformed so that we could know
what we were paying for, and get what we paid for, rather than paying for all
government services regardless of whether we use them. Majoritarian democracy is
not a recipe for rational public finance, but rather “ leads in the end to a general
attitude, which regards political pressure, and the compulsion of others, as the
cheap way for paying for most of the services one desires” [1979, 51-52].
Hayek also makes it clear that while he favours a larger public sector than
we have been advocating throughout this discussion, the concern for social justice
which drives the Murphy/Nagel enterprise has no place in his, emphasizing as it
does the spontaneous ordering of the market. Hayek argues that while it might
be tempting to consider the misfortunes of life, including the unequal distribution
of worldly goods, as unjust, no one has in fact acted unjustly towards another:
“ There is no individual and no cooperating group of people against which the
sufferer would have a just complaint, and there are no conceivable rules of just
individual conduct which would at the same time secure a functioning order and
147
prevent such disappointments [1976, 69]” The belief that in s socially just system
wealth would be equally distributed is largely responsible for the contemporary “
highly interventionist mixed economy, “ where government acts as though it could
and should level the playing field.
Again Hayek emphasizes, as we have done in discussing the Murphy/Nagel
proposals, that “ our whole system of morals is a system of rules of individual
conduct. “ In Hayek’s Great or Open market society there would be no room for
governments to chase the will-of-the-wisp of social justice, rather than performing
their sole function of providing for law and order and any collective needs which
might not be met by the market [1976, 82,83]. In his view social justice simply
consists in giving “ moral approval to demands that have no moral justification,”
whereas “ justice in the sense of just conduct is indispensable for the intercourse
of free men [ibid., 97]” In fact Hayek even thinks it possible, as we have been
intimating in this essay, “ that the spontaneous order which we call society may
exist without government “ though the rules of just conduct may require “ an
organized apparatus for their enforcement [1973, 47]” Indeed they might, though
one suspects that a private court system could prove much more efficient than the
hopelessly inefficient government counterparts we are familiar with.
It is also worth noting that in the Great Society, where we simply enforce the
rules of just conduct or laws prohibiting malum in se, much of the enterprise of law
as we presently know it would disappear, consisting as it does of malum prohibitum
or statute law. The latter would include the host of regulations by which politicians
have sought to control economic activity, for which in fact nothing more is needed
than that people avoid force and fraud, and honour contracts. As an important
step in the direction of providing capitalism withy the tools required to do its job,
Hayek recommends removing government monopoly on money, which was never
intended to be a source of good money but rather of providing government with a
licence to print it. Private monetary systems, on the other hand, will prove more
stable in purchasing power. He believes that democracy where “ every little group
can force the government to serve its particular needs, “ will never be able to give
us reliable money, but rather will resort to inflation, followed by totalitarian price
controls.28 Indeed, as Hayek wrote more than 30 years ago, it is this “ whole crazy
structure “ of a government monopoly which is “ very largely the cause of the great
fluctuations in credit, of the great fluctuations in economic activity and ultimately
of the recurring depressions” He ends with the following caution: “ At the present
moment we have of course been led by official monetary policy into a situation
where it has produced so much misdirection of resources that you must not hope
for a quick escape from our present difficulties, even if we adopted a new monetary
system [2008, 23-25, 27-28]”
28
The present recession is yet another excuse for the government to shower money on all and
sundry. But as Woods points out, “Problems caused by excessive spending and indebtedness
cannot be cured by more spending and more indebtedness” The government borrowing necessary
to fund bailouts will require “further money creation and thus the continuing debasement of the
dollar” [2009, 150-151]
148
While Hayek appears to be ready at least in principle to overlook the coerciveness of taxes in order to provide some basic goods, he also thinks it important
to distinguish laudable “aims” from the actual “methods” used to put them into
practice. Having desirable goals is one thing, but if many state welfare activities
are seen as a threat to freedom,it is because they rely on coercion to maintain the
state’s monopoly [ 1978, 258]. The paternalistic state then doles out portions of the
income it has taken from its subjects as it sees fit [ibid., 260-261]. Nor should we
think that democracy will safeguard our liberty by somehow reigning in the bureaucrats, including the highly bureaucratized professions, who consider it their job to
give us what they think we need [ibid.]. Indeed, as we have already pointed out in
the course of this chapter, democratic control is as much a myth as the public good
the nomenklatura are supposedly charged with safeguarding; as Hayek observes:
“It is inevitable that this sort of administration of the welfare of the people should
become a self-willed and uncontrollable apparatus before which the individual is
helpless, and which becomes increasingly invested with all the mystique of sovereign
authority” [ibid., 262].
4.3.4
Democracy and redistribution
The redistribution which is central to the doctrine of state sovereignty depends, as
Jasay explains, on the further notion of “an unowned pool of wealth emitting bountiful positive externalities” [2002, 100]. Such bounties typically spill over from two
party contracts, where both parties consider themselves to have given “sufficient
value for value received” The fact that a third party who is external to the contract
happens to profit in some way puts him under no obligation to the contracting
parties who undertook their contract solely to benefit one another. Thus, “If “society,” or past generations, have created that positive externality, its recipients owe
nothing for it to “society” or to contemporary heirs of past generations. Whoever
created it has already been paid in full” [ibid., 103].
Even if there was something to be recaptured from the products of past contractors, since, as Jasay observes, “Society” has no more claim on the supposed
pool of these than the individuals who contributed them do [ibid., 104]. there is no
reason to assume that the state has any authority to do so, and as we have argued,
democracy is in no position to provide such authority. On the contrary, Chodorov
points out that:”Obscurantism sets in and disguises the character of the State when
the personnel of rulership is subject to periodic change, and particularly when the
oligarchy convinces both itself and Society that it serves a noble purpose.It is in
the phrase “social service” that the true character of the State is lost” [1959, 99].
Further, as Jasay explains, the supposed unowned pool of wealth which is available for redistribution to the hungry multitude appears upon closer inspection to be
two rather different pools. The first consists of the sum of unintended consequences
of various forms of social cooperation, while the second consists of those additional
goods which we have at least metaphorically contracted with a government to supply such as defence, law, and contract enforcement. Indeed, some enthusiasts for
149
redistribution, such as Judge Posner, have gone so far as to claim that the government’s enforcement of property meant that the individual was in effect a trustee
of government property: “When I eat a potato chip I am actually eating the government’s potato chip with its permission, since it is the government that created,
recognizes and protects protects my property right in the chip” 29 What these commentators would need to explain is in what sense I could still coherently be said
under such a regime to have a property right in the chip.
If I have, as it were, contracted with government suppliers for certain goods,
there may well be positive externalities available to non-contractors, as there were
in the case of private contracts. Moreover, if the principle of ne bis in idem continues to hold, according to which someone who happens to benefit from a positive
externality, as we all do when people refrain from attacking us, or plant nice gardens, is under no obligation to pay for the benefit, contracting taxpayers are not
entitled to seek redistributive compensation from the non-taxpayers. But then, as
Jasay observes, it is not at all clear “why anyone should think that compensation
might well be due the other way, from the taxpayers who provide the beneficial
externality to the nontaxpayers who receive it (which is the usual direction of most
redistributive proposals)” [ibid., 103]Indeed,he concludes that: “Externalities that
cannot be, as it were, traced to somebody’s particular act do not, for that reason,
put us in debt to “society” any more than do the externalities we could impute to
particular persons put us in debt to those persons” [ibid., 106].
We noted earlier that democracy was a distribution game where commonly
Peter was robbed to pay Paul, but according to Jasay, redistribution often takes
the form of churning, where: “Both Peter and Paul will be paid on several counts
by robbing both of them in a variety of more or less transparent ways, with a
possibly quite minor net redistribution in favour of Paul emerging as the residual
byproduct” [1998, 261]. This is not to say that either Peter or Paul will be aware
of what their net positions are, and as Tocqueville points out, this was as true
in 18th century France as it is now. Although the nobility supposedly benefited
from tax exemptions, which caused great resentment on the part of the populace,
“the inequality, though great, was not so bad as it seemed, since the nobleman was
often affected indirectly, through his tenants, by taxes from which ostensibly he
was exempted” [1955,87].
Rather, in order to divide and conquer, the state seems intent upon keeping both
Peter and Paul, and their heirs and successors, in the dark, or as Jasay puts it:
“It is in the state’s interest to foster systematic error. The more people who think
they are gainers and the fewer who resent this, the cheaper it is crudely speaking
to split society into two moderately unequal halves and secure the support of the
preponderant half” [ibid., 261-262].30 Despite possible political benefits, there is
always the chance that Peter and Paul will tire of playing the distribution game,
as their French ancestors apparently did at the Revolution, “both because more
29
cited by Jasay [ibid., 102 n.13]
Thus the Shavian wisdom that a government which robs Peter to pay Paul can always depend
on the support of Paul.
30
150
churning takes more government, more overriding of mutually acceptable contracts
and the rights of property (which may upset one half of society), and because
of some perhaps dim, inarticulated frustration, anger and disappointment that so
much redistributive ado is at the end of the day mainly about nothing (which may
upset the other half)” [ibid., 264].
4.4
Dworkin on democracy
In the last chapter of his recent discussion of democracy, Dworkin asks whether
indeed democracy is possible, concluding much as we did earlier that the prognosis
for majoritarian democracy is in fact rather bleak. He cites the pitiful standards
of public discourse and the abysmal ignorance of the average citizen about any
matter of significance. Politicians have become so accustomed to dumbing down
their message that “truth as a gold standard has become obsolete: politicians never
seek accuracy in describing their own records or their opponent’s positions” [2006,
128]. Worse still, politics is a matter of money, with politicians spending a great
deal of their time bagging as much of it as possible by peddling their influence to
large donors.
In response to the rather pathetically pedestrian realities of everyday politics,
rather than taking the sanguine view that things were ever thus, Dworkin offers the
more serious assessment that: “our politics are now so debased that they threaten
our standing as a genuine democracy that they have begun to undermine, that
is, the legitimacy of our political order” [ibid.,130]. Curiously enough, however,
it doesn’t occur to Dworkin that democracy itself might be the problem, as we
have been suggesting. On the contrary, according to Dworkin, all of us accept the
general superiority of democracy to other forms of government, believing that “no
other form of government would have moral title to command allegiance over us”
[ibid.].31
But of course that is exactly what we have been questioning here. The fact that
a government is democratic, in some sense or other, and Dworkin admits that the
US is far from being a pure example, in our view, adds nothing whatever to its
legitimacy which it doesn’t already possess qua government. The only legitimacy
it could possess qua government is that we have contracted with it to perform certain functions on our behalf, which on the whole it appears we have not done, or
if we thought we did, this supposed agent all too often acts like a super contractor/enforcer of some sort.
However, Dworkin claims that underneath a vaguely Churchillian cheer for
democracy rests profound disagreement as to its nature. Views divide into two
31
Kekes offers a more recent version of that view: “All forms of government are imperfect, but
their imperfections can be greater or smaller. I think that the imperfections of democracies are
the smallest of all” [2008, 213]
151
main camps–majoritarian versus partnership democracy. We have already had occasion to refer to the majoritarian view of democracy, but somewhat like Singer,
Dworkin proposes his partnership view as a way of rescuing democracy from its
majoritarian errors: “democracy means that people govern themselves each as a
full partner in a collective political enterprise so that a majority’s decisions are
democratic only when certain further conditions are met that protect the status
and interests of each citizen as a full partner in that enterprise” [ibid., 131]. This
account of partnership democracy is certainly “sketchy,” as Dworkin admits, but
we have already raised objections to the notion that democracy amounts to people
governing themselves, and no qualifications either of the Singer or Dworkin variety
serve to render it any more intelligible. Once you get hooked up with a “collective political enterprise,” it is hard to avoid the absurdity noted so aptly by Rose
Wilder Lane: “To control himself, an individual must control the Government that
controls him. Isn’t that bright?” [1993, 208].
The essence of Dworkin’s partnership view is “mutual attention and respect,”
which, however, appears to be little more than “a possible aspiration,” since contemporary politics favours the simple majoritarian position. On the latter view the
majority carries the day, even if that means, according to Dworkin, having the legitimacy of our democracy threatened by our unwillingness to dig ever more deeply
into our pockets to rescue others “from hopelessly bleak and dangerous lives” Of
course, Dworkin still thinks that “wonderful redistribution programs” run by the
government are actually capable of delivering much besides rents to the politicians
and the various functionaries who administer such programs. Indeed, redistribution seems to have it in common with any form of socialist calculation, that in the
end it is impossible to make. Rather, as Salerno has pointed out, the state can
only produce welfare for some “by siphoning off the resources and destroying the
economic arrangements that support the welfare of others” 32 Nor is it any surprise
that Dworkin should be mistaken about the virtues of redistribution, since as Jasay
has observed,”the more highly developed and piecemeal is the redistributive system
and the more difficult it is to trace its ramifications, the more scope there must be
for false consciousness, for illusions and for downright mistakes by both the state
and its subjects” [1998, 262].
Of course Dworkin argues that the virtues he does see in redistribution in turn
rest upon his analysis of liberty, of what we are free to do or not do: “No one has a
right to live precisely as he wishes; no one has a right to a life dedicated to violence,
theft, cruelty, or murder” [ibid., 69]. Well, indeed one doesn’t, for as Narveson has
pointed out one’s own freedom of action is constrained by the “rightful liberty” of
others [1988, 7]. Thus one is not free to live a life of “violence, theft, murder or
cruelty,” since such actions violate the right of others to live their lives free of such
predations. Dworkin agrees with a similar limitation on one’s liberty: “I cannot
claim a right to live like Attila the Hun on a bad day, because I cannot think
that your life and property are at my disposal” However, Dworkin for some reason
believes it also follows that “we must also accept that liberty is not damaged when
32
Postscript to Mises [1990, 70]
152
government restricts freedom if it has a plausible distributive reason for doing so”
[ibid., 69-70]. What Dworkin seems to have overlooked is that restrictions upon my
liberty imply restrictions upon my ability to compel or coerce others. If I am not
at liberty to seize your property because I believe I need it more than you do, as we
have argued all along, there is no reason to believe that a government is at liberty
to do so either. As Nozick wrote: “We are not in the position of children who have
been given portions of pie by someone who now makes last minute adjustments to
rectify careless cutting. There is no central distribution, no person or group entitled
to control all the resources, jointly deciding how they are to be doled out. What
each person gets, he gets from others who give to him in exchange for something,
or as a gift” [1974, 149].
Dworkin, however, subscribes to a doctrine of Staatsräson or the view the state
may possess plausible justifications for its actions not morally available to individuals, or as he puts it: “A distributive justification appeals to some theory about the
fair allocation of resources that are available to the community as a whole” [ibid.,
170]. We have already addressed the question as to how a theory of distributive
justice depends upon a questionable notion of an unowned pool of wealth which is
supposedly not fully captured by commutative justice, but, in Jasay’s words, “must
be adjudicated by the political process that administers distributive justice” [ibid.,
101]. Further, with respect to Dworkin’s view that the state may rightfully seize
some proportion of our assets to accomplish its ends, Nagel writes that:”Taxation
therefore provides a case in which public morality is derived not from private morality, but from impersonal consequentialist considerations applied directly to public
institutions, and secondarily to action within those institutions. There is no way
of analyzing a system of redistributive taxation into the sum of a large number of
individual acts all of which satisfy the requirements of private morality” [1978, 88].
Again, if there really is such a disconnect between the morality of the state and
its institutions, and that of the private individual, as Machiavelli famously thought,
it is not clear why the individual should feel morally compelled to take any notice of
the state’s predilection for redistribution, and that although Dworkin thinks most of
us don’t in fact “count taxation as a constraint on liberty,” there is no moral reason
why we shouldn’t [ibid., 69]. In fact, Dworkin appears to recognize as much when he
suggests, in favour of his own view, that “the bare fact of majority support supplies
no reason at all why a community should adopt the policy it supports,” [ibid., 134].
and offers further criticisms of majoritarianism reminiscent of those made above.
He claims, for example, that “it is a serious mistake to think that a majority vote
is always the appropriate method of collective decision whenever a group disagrees
about what its members should do” [ibid., 139]. Accordingly, it would probably be
wrong to use a majority vote to decide who in an overcrowded lifeboat had to take
his chances with the sharks, who was to be drafted for military service, or whether
some questions of sexual behaviour might be subject to collective oversight.
In reply to the position that there might be times when a majority vote is the
only fair way to decide a collective political matter, Dworkin rightly reminds us
that: “In representative government, people’s influence over political decisions is
153
for a thousand reasons never equal; on the contrary, it must be strikingly unequal.
At any given moment many thousands of people enjoy elective and appointive office,
and the political power of even the lowliest of these will be much greater than most
of their fellow citizens who remain in private life” [ibid., 141]. The democratic race
is to the politically swift and influential, where, as Dworkin admits, “ the idea of
equal political power is a myth,” [ibid., 142]; for, as Seldon also noted, “the more
some people can organize to attract general public attention or sympathy the more
they derive advantages or concessions, benefits or subsidies from government at the
expense of those who lack the requisite skills” [2002, 44]. Being neither capable of
delivering the truth, nor of equal political power, Dworkin concludes, again happily,
that: “The majoritarian conception of democracy is defective because it cannot
explain, on its own, what is good about democracy. Mere weight of numbers, on
its own, contributes nothing of value to a political decision” [ibid., 143].
Other than thanking Dworkin for supporting many of the criticisms we had
already made about majoritarian democracy, that should be an end of the matter,
except that Dworkin thinks he has a cure for what ails democracy, namely that
we take seriously the rights of others to fair treatment, something he has been
advocating for the past 30 years. One plank in such a platform is “equal concern,”
to which we might give effect by electing officials by wide suffrage, and not from
within their unaccountable bureaucracies. Given that their number is reminiscent of
the “ten thousand times ten thousand, and thousands of thousands” gathered about
the throne in heaven, the cure for unsatisfactory elections sounds like an everlasting
dose of them. Of course, about the notion of “equal concern” in general, Jasay has
aptly remarked that it: “is devoid of any specific meaning that would make it
compelling for reasonable men to agree, with respect to how people are treated in
a given situation, either that it is violated or that it is not” [1991, 40,n.1].
Another way to give effect to “equal concern” we are told, is “by embedding
certain individual rights in a constitution that is to be interpreted by judges rather
than by elected representatives, and then providing that the constitution can be
amended only by supermajorities” [ibid., 144]. However, recent writers have shown
that the US had such a constitution, whose provisions for individual rights have
apparently been whittled away by unelected judges. Thus,according to Barnett,
instead of “islands of government power in a sea of liberty,” judicial redaction
has left us with ” islands of liberty rights in a sea of government powers” [2004,
1]. Similarly Epstein writes that whereas the Old Court cannot be accused of
playing fast and lose with the original text, the Progressives “saw in constitutional
interpretation the opportunity to rewrite a Constitution that showed at every turn
the influence of John Locke and James Madison into a different Constitution, which
reflected the wisdom of the leading intellectual reformers of their own time” [ 2006,
135-136].
Both Barnett and Epstein mention the particularly egregious instance of rewriting in favour of more expansive government powers, which we raised in the previous
chapter under the heading of eminent domain. With respect to the recent and much
discussed Kelo case, Epstein comments that “the crushing defeat in Kelo is a dis154
aster for the ordinary people who now stand to be thrown unceremoniously out
of their homes. But, more than any academic writing could, it may expose the
dangerous side of the big-government position that is the hallmark of Progressive
thought” [ibid., 134]. If constitutions have not proved the bulwark against the erosion of rights, which some had hoped they might, it was Dworkin who reminded
us years ago that rights would be trumps unless some overriding collective purpose
dictated otherwise: “Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient
justification for imposing some loss or injury upon them” [1977, xi].33 Jasay rightly
responds that about all this seems to mean is that rights are trumps except where
they are not, which is a rather odd definition of a trump; or that “some rights may
consequently prevail over some collective purpose some of the time. Nothing more
predictable and absolute(i.e. rule-like)can plausibly be read into rights-liberalism”
[ibid., 39-40].
Dworkin does attempt to clarify when a majority will have the right to impose
its will on a minority, by appealing to the notion of self-government. While it would
compromise my dignity for others to automatically assume coercive authority over
me, “my dignity is not compromised when I do take part, as an equal partner, in
those decisions” While this is apparently “a crucially important assumption” which
underwrites democratic legitimacy, it is by no means clear, as we noted above, what
would count as fulfilling it. Thus such a notion can be of no help in explaining why
“democracy means self-government” It apparently means self-government, except
when it doesn’t, just as rights are trumps, except when they aren’t, which is much of
the time. Instead of self government in any literal sense, what you get is a right with
a lower risk of abridgement than some, such as “the right to participate in political
decision, as a voter and as eligible for political office” Similarly, it seems, while some
“personally judgmental constraints are permissible,” such as those relating to the
use of seat-belts or pharmaceuticals [ibid., 73], one has a right to decide “what role
religious or comparable ethical values should play in his life,” [ibid., 146]. provided,
I imagine, that one’s religion is not, for example, a front for terrorism or female
genital mutilation.
Dworkin’s schedule, as it turns out, parallels that of the Canadian Charter
of Rights and Freedoms, which after acknowledging the “supremacy of God” in
the preamble, lists freedom of conscience and religion as the first right, including
freedom of expression and assembly, to be protected from legislative encroachment,
with the next being that of the right to vote. The Charter’s catch-all, “reasonable
limits prescribed by law as can be justified in a free and democratic society,” has
apparently permitted seat-belt and pharmaceutical legislation, no doubt as part
and parcel of the nanny state. Should that prove insufficient, parliaments can enact
33
Barnett considers allowing the defence of “public purpose” rather than “public use,” as in
the case of a road or park, to be an example of gutting a crucial limitation on the takings power
[2004,354]In Kelo et al. v. City of New London, Conn. the Supreme Court upheld the city’s
taking private houses under eminent domain so that Pfizer Inc. could redevelop the land on
which they stood and bring increased revenues to the cash-strapped city.
155
overrides to any of the earlier provisions including the schedule of legal rights, the
first of which is “the right to life, liberty, and security of the person” About this
ordering of rights, Narveson correctly notes that this latter right “could have and
should have stood as a general preamble to the whole, for it implies all of the
freedoms that actually precede it” [2002a, 236].
Thus, for example, the European Convention on Human Rights lists protection
of the right to life as the first of its 66 articles, a protection which might be diminished by the circumstances of the particular case, such as one’s having engaged in
unlawful violence, rather than by contrary legislation. The Convention also provides a right to private property [Protocol, Article 1], recently used, for example,
to roll back union dues in Sweden 34 , a right which Dworkin does not mention, and
which is notably absent from the Canadian Charter. 35
If Dworkin was hoping to escape the curse of majority rule, schedules of rights
are not handed down on tablets on the mount, but are established by committees
who very much rely on majority rule. Dworkin thought that one way to guarantee
equal concern was by listing individual rights in a constitution interpreted by judges
rather than politicians, since courts represent an “independent forum of principle,”
where “rights will be enforced in spite of the fact that no Parliament had the time
or the will to enforce them” [1985, 27,32]. However, there is no escape from majority rule either in the appointment of judges in the first place, or in the decisions
rendered by a full bench of judges. Moreover, although Dworkin admits that while
Americans have often considered lawyers to be “ scoundrels, lacking the prestige of
doctors and maybe even teachers,” they abound in government where they wield
considerable power and influence [ibid., 31-32].
We should thus not be surprised to find a widespread tendency to produce what
Robert Martin calls a “government of lawyers, by lawyers, for lawyers,” [2003,
180]. something which appears to happen in spite of their poor public image. No
doubt there is the illusion that donning the mantle of legislator, or the robes of
a judge, is able to overcome the frailties all too evident in more humble pursuits.
While politicians do not typically fare any better in the public estimation than
perhaps they did as lawyers, pace Dworkin, judges are not always held in great
esteem either. For example, Martin claims that the tenure of a recent member
of the Supreme Court of Canada, Justice L’Heureux-Dubé, was “a major national
disgrace,” since her responsibilities “transcended both her intellectual and moral
capacities” [ibid., 195].
Of course, Dworkin admits that we are a long way from “partnership democracy,” a fact which undermines any claim to democratic legitimacy. In fact we
share Dworkin’s criticism of the present state of democracy, where most notably
34
cf. Sdergren [2007, 23-25]
However, in the absence of such a provision, on the question of union membership, while the
Supreme Court of Canada has, for example, read into freedom of association under Article 2. that
one cannot be compelled to join an association, under Article 1. it has at the same time found
such compulsion “justified in a free and democratic society”;cf.Sdergren [ibid., 13]
35
156
our electoral procedures are not genuinely democratic and political disagreements
are not conducted in a respectful manner: ” Our degraded politics are not only
insulting and depressing; they are not even democratic” [ibid., 147]. While most of
Dworkin’s criticisms have already been anticipated earlier in this discussion, we fail
to share his belief that there is a genuine democracy which would be revealed if we
were to strip away the practices that have been carried on in its name over the past
couple of centuries. In our view what you see is what you get, and as with other
proposals for democratic rehabilitation, the solution is not to be found in yet more
democracy. Even if political debate could rise to the level of a mutually respectful
disagreement, we may well continue to disagree, and do so profoundly, and may well
have to resort to a vote, if there appears to be no alternative to collective action of
some sort.
Part of the problem is getting to some agreement in the first place as to what
matters, if any, will unavoidably be the subject of collective action and what won’t.
Perhaps this requires settling upon a constitution involving, as Hardin suggests,
“coordination on big issues of general structure and protections” [2003, 84]. Assuming we can agree on the matters which call out for some sort of collective
resolution, a relatively short list, on my view, we will presumably have to agree
on how those resolutions are to be taken. With respect to the US Constitution,
for example, Dworkin claims that “our government is not and was not intended
to be fully majoritarian” [ibid., 146]. Elsewhere, however, he speaks glowingly of
“the last liberal settlement,” that is, The New Deal, which he takes to have established some sort of benchmark for the latter-day liberalism which he espouses.
A principal feature of this sort of view is “that inequalities of wealth be reduced
through welfare and other forms of redistribution financed by progressive taxes.”
While favoring economic intervention, Dworkinian liberals prefer “a pragmatic and
selective intervention over a dramatic change from free enterprise,” plus a general
assortment of latter day liberal causes such as affirmative action and the protection
of civil liberties [1980, 122].
Following the example of the New Deal, the aim is for such positions to issue
in firm government policy by the usual majoritarian routes of electing a party and
president who support such causes. Of course the end result may stray considerably
from such objectives, as did Roosevelt’s first New Deal which appeared to have more
in common with Mussolini’s fascist state than the customary liberal nostrums.36
As for the claim that Roosevelt rescued the US from the Depression by government
spending, DiLorenzo comments that such strategies simply divert resources from
the private to the government sector, depressing genuine economic growth, with
the result that unemployment was higher in 1938 than in 1931. Rather than the
New Deal being of any benefit to the needy,” there is much evidence that New Deal
spending was designed with one overriding objective: to use the money to buy votes
in order to assure FDR’s re-election, regardless of regional disparities in the degree
36
cf. “While at the same time proclaiming his devotion to democracy, [Roosevelt]. adopted a
plan borrowed from the corporative state of Italy and sold it to all the liberals as a great liberal
revolutionary triumph” Flynn [1940, 83]
157
of economic hardship” [2004, 199-200].
Thus it seems rather difficult to reconcile the New Deal with Dworkin’s claim
that it embodied a political morality whose constitutive element was supposedly
treating its citizens with respect, a view reflected in his partnership conception of
democracy, which is just a more recent elaboration of the liberal package inherited
from FDR [1980, 120-121]Indeed, it is hard to see what is particularly liberal about
the first liberal settlement, for as Holcombe observes, “that era saw the growing
acceptance of democracy as a principle on which to base government policy and a
corresponding decline in the principle of liberty” [2002, 231]. Although Dworkin
claims to have avoided the errors of majoritarian democracy, his political morality,
such as it is, is clearly descended from that tradition, and despite much posturing
to the contrary, never really departs from it.
And as Spencer asked well over a century ago: “The true question is: Whence
the sovereignty? What is the assignable warrant for this unqualified supremacy
assumed by one, or by a small number, or by a large number, over the rest?”
[ 1981, 128]. The answer, as we have been suggesting, is that there is no such
warrant, and according to Spencer it is superstitious to think otherwise: “The
great political superstition of the past was the divine right of kings. The great
political superstition of the present is the divine right of parliaments. The oil of
anointing seems unawares to have dripped from the head of the one on to the heads
of the many, and given sacredness to them also and to their decrees” [ibid., 123].
Again, Chodorov reminds us that in a republic the transfer of power to representatives is “well nigh absolute,” since the supposed constitutional restraints
“can be circumvented by legal devices in the hands of the agents” Even if we vote
the incumbents out at the next election, another crowd of hopefuls step up to the
plate, with the result that “people still put the running of their community life
into the hands of a separate group, upon whose wisdom and integrity the fate of
the community rests” One way to end the eternal cycle of sovereignty is to take
ever diminishing voter turnout to its ultimate conclusion and stay away from the
polling booth: “All this would change if we quit voting. Such abstinence would be
tantamount to this notice to politicians: since we as individuals have decided to
look after our affairs, your services are no longer needed” [1980, 199-200].
Of course, we may expect a reaction from those who have most to lose by
this reductio of the state. Statists par excellence, such as Hitler, Mussolini and
Stalin still liked to see a ballot, even if there was only one party to vote for, but
politicians of every stripe are unlikely to view with equanimity losing the stamp of
legitimacy conferred by the people, and could be expected to respond by enforcing
voting, as has happened for years in Australia. Even “the seemingly disinterested”
might be expected to join in the chorus: “All the monopolists, all the couponclipping foundations, all the tax-exempt eleemosynary institutions — in short, all
the “respectables” — would join in a howling defense of the status quo.”37
37
cf.Chodorov[ibid., 202]
158
Then there are the legions who live full-time off the avails of government, from
welfare recipients to deputy ministers. With respect to those on welfare, Mill famously held: “that the receipt of parish relief should be a peremptory disqualification for the franchise. He who cannot by his labor suffice for his own support has
no claim to the privilege of helping himself to the money of others” [1958, 134].
As for the nomenklatura, Tullock thought that “because bureaucrats can vote in a
democracy, it has difficulty disciplining them,” suggesting the further restriction,
“that government employees or people who draw the bulk of their income from
government by other means should be deprived of the vote” [2002, 55,58]. Thus we
conclude with Spencer that “when it begins to be seen clearly that, in a popularly
governed nation, the government is simply a committee of management; it will
also be seen that this committee of management has no intrinsic authority. The
inevitable conclusion will be that its authority is given by those appointing it; and
has just such bounds as they choose to impose” [ibid., 161,165-166].
4.5
Summary
In order to determine how democracy might be called upon to underwrite the
authority of the state, we began with Peter Singer’s discussion [1974], where he
considers three possible modes of government for his model common room association, ranging from the autocratic to the democratic. He expects that only the
latter will generate the sort of obligations on the part of its members to support
the decision favoured by the majority. No doubt influenced by Hart’s argument
from fairness, Singer thinks the dissenter will feel constrained to go along with the
majority because he has as it were by his participation consented to the outcomes
of the democratic machine. Even if this is true of a small scale association, there
is still a question of its relevance to the republic, and as we have argued elsewhere,
we suspect the answer is very little. Indeed, if there are any reasons to obey, it
would be because they are independently morally right reasons, and not because
they were arrived at democratically.
To the extent that democracy continues to have any appeal, it is because it is
often seen to be connected in some way with liberal rights, which themselves derive
from a basic right of all to liberty. In fact democracy is inimical to individual liberty,
interfering with the latter on behalf of the special interests which constitute Dahl’s
polyarchy. Democracy is no guarantee of peace, nor of a quick end to war, any
more than it has proved a defender of that central individual right, namely private
property. Its main raison d’être is redistribution, and it serves as a reminder that
the sovereign people represent no less of a threat to individual liberty than the
ancien régime, for example. Dworkin claims to see much wrong with majoritarian
democracy, as we have done, but approves of its central tenet of redistribution; while
he touts self-government, we seem to end up with participation, which sounds like
more of the same, rather than any cure for what ails democracy.
159
Chapter 5
The non-fallacy of anarchism
The conclusion to Edmundson’s Three Anarchical Fallacies is appropriately entitled “The State for What.” Here he reviews arguments he has made in favour of
the legitimacy of the state and against the skeptical view I have been advancing.
Thus he claimed that “legitimacy entails a prima facie duty not to interfere with
the state’s administrative prerogatives” [1998, 79].However, while legitimacy might
conceivably entail such a duty, it simply begs the question as to whether there are
any such states to begin with, something we cannot tell simply by inspection of
its prerogatives.Indeed, it seems more likely that there are no such states, or as
Jasay, has put it, states are “never legitimate, and never a necessity for binding
agreements” [1997, 36].
The second skeptical fallacy which Edmundson claims to have exposed is that
of the coerciveness of law, since “If the law is essentially coercive, it would be much
harder to believe that there is a prima facie duty not to resist it” [ibid.].We have
argued that the law is indeed coercive, but whether or not that makes compliance
more difficult seems to depend less on the presence or absence of coercion, but
rather on whether coercion, by individuals or their agents, is justified in any particular case. In his attack on the third anarchical fallacy, Edmundson thought it
important to show that the “state may enforce whatever morality may” which will
in turn demonstrate that “law is least coercive where its requirements track those
of morality” [ibid.].
Moreover, “Exposing the third fallacy tells us only that the law may legitimately
reach wherever morality reaches, but it does not even begin to tell us where that
is” [ibid.]. Again, I suggested earlier that Edmundson has things the wrong way
round, since the anarchist is generally more interested in legal requirements that
appear to have little basis in morality. However, Edmundson thinks it an important
question,”whether there may be valid moral requirements that may not validly be
made requirements of law,” or as he also phrases it, whether there is “any department of conduct that morality claims as exclusively its own, and which the law has
no business penetrating” [1998, 127].There are of course occasions where this sort
of rhetoric has been used, most famously, for example, in the recommendation of
160
the Wolfenden Committee that: “Unless a deliberate attempt is made by society,
acting through the agency of the law, to equate the sphere of crime with that of
sin, there must remain a realm of private morality and immorality which is, in brief
and crude terms, not the law’s business.”1
However, as Hart points out, the principles enunciated here “are strikingly similar to those expounded by Mill in his essay On Liberty,”and as such constitute
a “general critical principle that the use of legal coercion by any society calls for
justification as something prima facie objectionable to be tolerated only for the
sake of some countervailing good” [1963, 15,20]. Lord Devlin, on the other hand,
found the approach of the Committee “wrong in principle,” since “society may use
the law to preserve morality in the same way as it uses it to safeguard anything else
that is essential to its existence” [ibid., 11]. Thus, in his view, the Committee was
mistaken in claiming that there was “a private realm of morality and immorality”
beyond the reach of the law, which could leave the vulnerable open to exploitation.Moreover, even “when all who are involved in the deed are consenting parties
and the injury is done to morals, the public interest in the moral order can be
balanced against the claims of privacy” [ibid., 19].
Hart denies that there is any such public interest which may rightfully be offended by private acts, for which offence it may demand relief at law: “Recognition
of individual liberty as a value involves, as a minimum, acceptance of the principle
that the individual may do what he wants, even if others are distressed when they
learn what it is that he does — unless of course there are other good grounds for
forbidding it” [ibid., 47]. While Hart thinks it important to avoid Devlin’s error
of legal moralism, where the law, rather than being an instrument to protect one
man from another, is deployed in a crusade against moral wickedness, he finds no
inconsistency between his enthusiasm for individual liberty and his claim that “paternalism — the protection of people against themselves — is a perfectly coherent
policy” If indeed paternalism has become more fashionable since the heady days
of Mill and laissez faire it is apparently merely a fact of social history, of which
we should duly take note, just as we should find it equally unremarkable that as a
result, for example, “the supply of drugs or narcotics, even to adults, except under
medical prescription is punishable by the criminal law” [ibid., 31-32].
In support of his claim that “The criminal law of England has from the very
first concerned itself with moral principles,” Devlin noted that the law had “never
permitted consent of the victim to be used as a defence,” [ibid., 6] implying of course
that it would be inconsistent to permit such a defence in the case of homosexual
relations. The fact that we don’t permit the defence of consent in a murder case,
however, Hart thinks is still better explained by paternalism than by appeal to
“moral principles which society requires to be observed,” as Devlin would have it.
However, Devlin is also right to wonder what the distinction between legal moralism
and paternalism actually amounts to, something which Hart does not bother to
explain [ibid.,133]. While conceding that paternalism is “a possible explanation of
1
Cited in Devlin [1975, 2]
161
such laws,” Hart appears to sidestep any question about its moral status by simply
characterizing it as “one of the commonplaces of social history”
But of course paternalism is not only a fashionable policy, it is also a moral
principle telling us that on at least some occasions we may be entitled to go further
than Mill’s non-maleficence and act as our brother’s keeper. As Hart writes: “Certainly a modification in Mill’s principles is required, if they are to accommodate
the rule of criminal law under discussion or other instances of paternalism” If we
are talking about the rule which does not permit consent as a defence to murder,
it seems a little odd to describe this as a case of paternalism since it is already too
late to speak of protecting the victim; Devlin is right to see it as a case of punishing
the wrongdoer for his immoral act. Moreover, it isn’t obvious that Mill’s principle
needs to give way — it clearly provides for coercion to be used against murderers,
and, pace Hart, is right to question paternalist legislation against drugs. As for
Hart’s claim that “euthanasia or mercy killing terminating a man’s life at his own
request is still murder” [ibid., 30], those who find Mill’s principle instructive might
well suggest modifying the criminal law as it applies to euthanasia, much as the
Wolfenden Committee did in the case of homosexuality and prostitution.
As for Edmundson’s believing that he has uncovered another of the errors of
anarchism, it seems that he has mostly been misled by rhetoric reminiscent of
Wolfenden to the effect that there are acts, which some consider still to raise moral
questions, but which ought no longer to fall under the purview of the criminal
law, and are best left up to the individual. If others participate in such acts, provided they have done so freely, there is no harm which the law need protect them
from, which is to say they raise no genuine moral questions. Curiously enough,
Edmundson admits that legal change inspired by Mill’s principle does not necessarily commit one to holding that delegalized moral requirements exist, but rather
what he, following Feinberg, calls “a perfect coincidence view,” namely that “something like Mill’s harm principle determines both what morality requires and what
law may permissibly require” [ibid., 128]. Indeed, the sort of liberalism to which
I am inclined, does suggest that the harm principle determines both the content
of morality and that of law, which is to say, it is in Hart’s words a general moral
principle “used in the criticism of actual social institutions including positive morality”[ibid., 20], though talk of law should not be taken to mean the whole edifice
of the law and state as Edmundson seems to understand it. Moreover, as we have
already had occasion to point out, the more interesting question is the one which
Edmundson doesn’t ask, namely whether there are any strongly demoralized legal
requirements of the malum prohibitum variety, as opposed to those picked out by
the harm principle as malum in se, to which we have offered a clearly affirmative
answer.
As for the “perfect coincidence view,” or the somewhat appealing view that the
harm principle determines the content of both morality and law, according to Edmundson, many liberals “are reluctant to claim that their principles circumscribe
morality as well as law because to do so would embroil liberalism in controversies
about the ultimate ground of value.Value is closely tied to religious belief for many”
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[ibid., 129]. Well, it seems that liberalism, at least in the form of it latterly called
libertarianism, as, in Narveson’s words, “a substantive moral and political theory,”
quite clearly circumscribes both morality and law. Indeed it is the view that individual liberty is paramount and that the only grounds for preventing someone from
doing what she wants is that her doing so would infringe upon the rightful liberty of
someone else: “No other reasons for compelling people are allowable:other actions
touching on the life of that individual require his or her consent” [1988, 7].
With respect to Edmundson’s concern that, for many people, value may be
connected to religion, we would simply point out that while that may be true as a
matter of historical fact, it is of no great philosophical importance. The libertarian
view is not itself dependent upon any religious view, but rather, as Narveson again
has remarked, adding a divine stamp of approval to a supposedly right action does
“nothing at all to explain what makes it right, and therefore nothing at all to help
us understand what is right. Theology is necessarily a fifth wheel in morals: it can
do no useful work” [1999, 23]. While Edmundson agrees that liberals are “officially
agnostic,” following Nagel, he thinks that prudential considerations might militate
against any overt hostility to religion. On Nagel’s account of liberalism there is of
necessity a discontinuity between political or public morality and private morality,
at least to the extent that the latter may involve religious or other views of the
good not shared by all. Thus “the legitimate exercise of political power must be
justified on more restricted grounds — grounds which belong in some sense to a
common or public domain” [1991, 158].
Such a view can probably be traced to Rawls who thought it important to
distinguish between “a political conception of justice and a comprehensive religious,
philosophical or moral doctrine” [1993, 174]. While Rawls admitted that “there
is some resemblance between the values of political liberalism and the values of
the comprehensive liberalisms of Kant and Mill,” there are “great differences in
both scope and generality between political and comprehensive liberalism” Whereas
“The liberalisms of Kant and Mill may lead to requirements designed to foster the
values of autonomy and individuality to govern much if not all of life” political
liberalism is supposedly a more limited project concerning itself with “a political
conception of justice for the main institutions of political and social life, not for the
whole of life” [ibid., 200, 175].
According to the more modest goals of Rawls’s non-comprehensive liberalism,
rather than attempting to convince the young of the virtues of autonomy and
individuality, their civic education should mainly consist in their being apprised of
their rights at positive law. However, it seems that not even Rawlsian civics will
entirely eschew the sorts of principles derived from Kant and Mill, since we are
told that children’s “education should also prepare them to be fully cooperating
members of society and enable them to be self-supporting; it should also encourage
the political virtues so that they want to honor the fair terms of social cooperation
in their relations with the rest of society” [ibid., 199-200]. As for the political
values, and the virtues conducive to them, they will “normally win out” in any
contest with “basic rights” inherited from the liberal tradition, in order to “insure
163
that all citizens have sufficient material means to make effective use of those rights”
[ibid., 157].
Indeed, although Rawls assures us that “the most reasonable political conception of justice for a democratic regime will be, broadly speaking liberal,”[ibid., 156]
though one cannot help wondering at what point such a latitudinarian view ceases
to be liberalism at all. The usual way to ensure that those who the nomenklatura
believe lack resources commensurate with their rights is to give them a right via
redistribution to the resources of others, who supposedly have more than they need,
a right we have already suggested is both non-liberal and non-existent. Rawls also
claims that his variety of liberalism, in the face of “reasonable pluralism,” “removes
from the political agenda the most divisive issues, serious contention about which
must undermine the bases of social cooperation” [ibid., 157]. Again, it is not clear
how much pluralism will count as “reasonable,” or why, though no doubt those
who claim to set the political agenda will think they have answers, just as they can
determine which items are on the agenda and which, in the interests of something
called reasonable social cooperation, must be left off. Of course, one suspects that
those things which it is supposedly reasonable to do are just those things which
Rawls’s so-called liberalism holds dear, which is to say that he has been no more
successful than either Kant or Mill before him in avoiding what he considers the
besetting sin of comprehensiveness.
5.0.1
Abortion and liberalism
Abortion is apparently one of those questions, about which there is such fundamental disagreement that, as Nagel puts it, “it is best, if possible, to remove those
subjects from the reach of political action” [ibid., 164,169]. From a survey showing
that while there is no great enthusiasm for abortion, nor is there any for regulating
it, Edmundson concludes that such results imply that there are “strongly delegalized moral requirements,” and further, that liberals such as Nagel typically hold
“that the “bracketing” of certain moral issues is what morality itself demands of
politics” As we have seen, the view of such “sophisticated liberals,” as Edmundson
characterizes them, “involves an implicit or explicit denial of the perfect coincidence view,” namely that the demands of morality coincide with those of the state
[ibid., 130]. However, although Edmundson claims to understand the attraction of
such a position to many latter-day liberals, since in the case of abortion it allows
one to hold both that “abortion is a terrible wrong and that the state may not
legitimately forbid it,” [ibid.] he does not find the language of Wolfenden congenial, namely that there is an inner sphere of morality which is not the state’s
business. On the contrary, it is Edmundson’s view that “any moral requirement
that is enforceable by private compulsion is permissibly enforceable by some legal
compulsory means” [ibid., 157]. We agree of course that moral requirements, which
attempt to curtail the class of malum in se actions, can be enforced by coercion,
wielded either by the individual affected or his allies. Customs of enforcement may
well have long since distilled into rules backed up by tribunals of one sort or an164
other, or as Edmundson puts it,”some legal compulsory means” However, we are
still a long way from Edmundson’s state with a monopoly of enforcement.
As discussed earlier, Edmundson thinks that there are reasons for monopoly
enforcement, since “the law exists, after all, to eliminate the hazards of a regime
of private enforcement, and the law achieves this end by presuming to largely
monopolize compulsory means”[ibid.]. We might well ask whether it is a case of
eliminating one set of hazards, or simply replacing one set with another, perhaps
even greater, for the king’s justice through the ages has hardly proved to be an
unqualified boon to its petitioners. Monopoly guarantees overwhelming threat,
and there is little the individual can do to counter to such disproportionate and
possibly unjustified use of the enforcement prerogative, as the case of a recent
would-be immigrant in Vancouver demonstrated.2 Nor does Edmundson think we
should attempt to do so, since he held that at a minimum there is a prima facie duty
incumbent upon all subjects not to interfere with the administration of enforcement.
Edmundson also claimed that the state may enforce requirements above and
beyond those available to the individual, which is yet another implication of the
doctrine of sovereign prerogative: “There are in fact many moral requirements that
the state and only the state may permissibly enforce by compulsion, for example,
paying taxes, ceasing public nuisances” [ibid.]. Of course, it is not surprising that
the state should insist on presiding over its personal fiefdoms, since both taxes and
public spaces are paradigmatic creatures of the state. The view that the state may
create duties and enforcements not available to individuals leads one to question
Edmundson’s support for the perfect coincidence view, according to which the harm
principle serves as both a moral and legal criterion. While noting that recent liberal
opinion was divided on the question, Edmundson opted for the coincidence view,
no doubt as a way of blocking the existence of a moral domain not amenable to
the reach of the law. The fact that there are laws beyond the reach of the moral
principles available to individuals apparently doesn’t trouble him nearly so much.
That is, as noted earlier, according to Edmundson, the law does not confine its
purview to the class of malum in se actions, as a coincidence view might suggest,
but is capable of declaring other actions to be illegal which do not meet a test of
harm to others, though the government may attempt to claim that it or “society” is
harmed by non-compliance. These are the malum prohibitum actions, those whose
wrongfulness simply derives from the fact that they fall under a state prohibition.
If indeed the state presides over an arsenal of rules and enforcement not available
to ordinary mortals, as Edmundson argues, and is able to prohibit by fiat, then it
is not clear why we have any obligation not to interfere in the administration of its
prohibitions, since in the words of Junius, the subject who is truly loyal to the chief
magistrate will neither advise, nor consent to arbitrary measures. Reminiscent of
Euthyphro, the other alternative, which I favour, is for morality to be independent
of the state, in which case, if it is a liberal state, like any individual, it will be
2
In 2009 an inquest was held into the death of Robert Dziekanski who had exhibited symptoms
of psychological distress after arrival in Vancouver airport, which led to his being tasered 5 times
by police.
165
constrained at the very least by a principle of non-maleficence. Should it have any
inclination to beneficence, following Pareto, it may improve the lot of some, and
worsen the lot of none.
Not only are there supposedly moral requirements that only the state may
enforce, Edmundson claims in support of this asymmetrical enforcement that there
are “many moral requirements whose performance may not be compelled by any
private person” [ibid.]. By way of illustration, he offers the case of a passer-by who
fails to render assistance to a blind man who has dropped his cane. While a third
party might well upbraid the passer-by for his want of charity, the observer may
not force the passer-by to retrieve the blind man’s cane, for as Epstein reminds
us: “The libertarian norms against force and fraud do not require any assistance
to persons in peril. Such assistance may be freely offered but never required” So
duties of charity by definition are not subject to enforcement by individuals or the
state, with the result that, as Epstein continues, “it is not surprising that the law
remains stubbornly close to its common law origins” [2003, 100-101].
According to Edmundson, “To grant that something is a moral requirement is to
authorize some means of social enforcement” [ibid., 176]. Perhaps we need to clarify
what we mean by “requirement” as well as what we mean by “enforcement.” With
respect to the first, Narveson recommends that we distinguish between strong moral
requirements such as non-aggression, and moral virtues, such as charity, which go
beyond what we have to do. While the pursuit of virtue is much to be commended,
including the virtue of pursuing one’s own health and well-being, “positive acts of
doing good to others are not basically required of us in the way that forbearances
from inflicting evils are required” [2000b, 316].
As for “enforcement,” Narveson suggests we distinguish that from “reinforcement” which takes the form of various forms of suasion and exhortation which stop
short of direct intervention used in enforcing rules [ibid.,318]. In any case, it is
not at all clear how Edmundson’s case of the blind man supports the view that
the state can go one better than any of us when it comes to enforcing or reinforcing a moral principle. States have generally avoided the sort of Good Samaritan
law which might compel direct assistance to those in distress, such as Edmundson
perhaps has in mind, though, of course they have had no hesitation in compelling
various forms of indirect assistance via taxation, something which on our view they
are not justified in doing. Thus to the extent that states have arrogated powers to
themselves unavailable to individuals, this is not something we should commend,
as Edmundson does, but rather declare their actions to be morally ultra vires, or
unjustified.
While a genuine moral requirement may well be backed up by social sanctions
ranging from reinforcement to enforcement, Edmundson has a distinct preference
for the latter, which is moreover “state-imposed and backed by the awesome machinery of the state.” In an age when social networks are not as strong as they
once were, “private correction can be irregular, unfair, scary, risky, and invasive”
[ibid., 170,175-176]On the other hand, according to Morgan, state intervention is a
166
source of moral hazard which encourages people to take less responsibility for themselves and their offspring, leading some to argue that the state is at least partly to
blame for “undermining self-supporting family structures” [2007, 13]In supporting
Devlin’s view that the state is is not to be excluded from the enforcement of morals,
Edmundson holds that we may on balance benefit from its oversight, though that
question cannot be settled a priori. However, he does seem to have forgotten that
morals are the paradigm instance of a privately supplied public good and are mostly
reinforced by upbringing.Where further enforcement is required, there is no reason
to think that cannot be adequately supplied privately as well.
5.0.2
Private enforcement.
With respect to the alleged deficiencies of private correction, we have offered various
arguments suggesting that state intervention would be every bit as “irregular,unfair,
scary risky and invasive,” if not more so. By way of some sort of non a priori backing
for his claims about the greater reliability of government enforcement, Edmundson
asks us to imagine a case where a citizen who is concerned about someone’s driving
pulls him over to complain about it. He suspects that, were we confronted by such
a highway vigilante, we would find it much more annoying than being pulled over
by police [1998,171]. However, our supposed negative responses hardly qualify as
an empirical account of the deficiencies of private enforcement. I suspect that for
many, reactions to police intervention are not much different, or one can imagine
such a scenario as a prelude to police involvement, such as a citizen’s arrest, the
total effect of which is humiliating and intrusive, as the use of coercion tends to be.
If private intervention is any more galling than that by public officials, it may just
be that this is not what we are accustomed to, at least on the highway.
In addition to its perhaps unusual and erratic features, Edmundson thinks that
public and private correction also differ with respect to “there being a necessary
permission on someone’s part to chastise wrongdoers and there being a claim right
on the state’s part to punish wrongdoing” Because the former is merely permissive,
a private citizen is not backed up by a right of non-interference, whereas, according
to Edmundson, those operating at the behest of the state do possess such immunity.
While we are quite aware that the state claims a right to punish, and at the very
least its subjects may have a duty of non-interference, it is just that, in our view,
Edmundson never quite managed to produce any satisfactory grounds for such a
claim. As for the protection against interference which piggy-backs on such a claim
right, the private citizen who attempts an arrest may have to be prepared to defend
himself if challenged. If so, his situation is probably no different from that of many
police officers, though his weaponry may fall short of standard police issue.
Edmundson, again, sums up what he takes to be the defining characteristics
of state, as opposed to other forms of social enforcement as, first, the right to
award an official sticker of social disapproval and to possess a monopoly on doing
so [ibid., 175]. To which we reply, that we know what it is they claim, but have
167
no idea what it is to justify such a claim. Presumably morality itself expresses the
disapproval of society as a whole, and it is unclear what officialdom has to add
to that process, other than the social cost of having yet another special producer
group, as Friedman puts it, “obtain a monopoly position at the expense of the rest
of the public” [1962, 148]. However, the anointing of authorities, if not of kings,
appears to have continued unabated, and the ancient myth of the divine right of
kings has simply been replaced with that of states. Or as Burke wrote,”the contract
of each particular state is but a clause in the great primeval contract of eternal
society,” which derives from Cicero in De Republica who thought that nothing
was more pleasing to the Supreme Ruler of the Universe than “these societies and
associations of men, cemented by law,called states” [1955, 110-111].
Edmundson seems to be of a similar mind, declaring that “a regime of private punishment cannot be coherently imagined” Besides the fact that the gods
smile kindly upon those entities called states, the right to punish, Edmundson
claims, is “irreducibly social,” which I take it is code for irreducibly statist. He
also notes approvingly that Nozick was reluctantly forced to accept a similar conclusion,[ibid.,175]given that “there seems to be no neat way to understand how the
right to punish would operate within a state of nature” [1974,139] Not that it is
surprising that Nozick should be found under the same tent as Edmundson, since
the aim of both endeavours was to subject anarchism to serious scrutiny in order to
reassert the legitimacy of the state. If the latter has commonly been characterized
by a monopoly on the use of force, including punishment, then Nozick famously
set himself the task of showing how we might get there without abridging anyone’s
rights in the process.
Of course, there would be holdouts, who refused to get on the dominant protection agency bandwagon and preferred dealing with offenders on their own terms,
enlisting the aid of allies when needed. Nozick thought that rights-preserving compensation could be offered to the non-joiners, in order to secure their participation
in the great public protection racket, commonly known as the state. But to preserve the “ultimate enforcement” characteristic of the state [ibid.,14], Nozick needs
to circumscribe the right to punish of which Locke spoke, where “every Man hath
a Right to punish the Offender, and be Executioner of the Law of Nature” To punish, or “lawfully do harm” to an offender, according to Locke, was “to retribute
to him, so far as calm reason and conscience dictates, what is proportionate to his
Transgression, which is so much as may serve for Reparation and Restraint” [1960,
II , 272].
5.0.3
Locke on punishment.
Locke admits that “this will seem a very strange Doctrine to some men,” though
he argues that the ability of the magistrates to punish aliens, or “Men without Authority,” for example, is predicated on just such a right to punish [ibid., 273] Nozick
for his part thinks the doctrine strange, unless we interpret the right to punish as
168
a liberty “rather than as a right which others may not happen to interfere with,”
a solution which he thinks “would give Locke much of what he needs” Moreover,
Nozick also claims that a distinction between punishment and compensation serves
to underscore the fact that punishment is a right of all in common: “unlike compensation, punishment is not owed to the victim (though he may be the person
most greatly interested in its being carried out), and so it is not something he has
special authority over” [ibid., 138].
Locke also speaks of two separate rights, that of “Punishing the crime for restraint, and preventing the like Offence,” or protection/deterrence, as it might now
be called, rather than “some retributive view,” as Nozick suggests [ibid.], “which
right of punishing is in every body,” and that “of taking reparation, which belongs
only to the injured party” [ibid., 273] While Locke agrees with Nozick that restitution is owed to the victim or third parties who sustain collateral damage, Locke
holds that “every one has the Executive Power of the Law of Nature.” This is to
say that “every Man in the State of Nature has a Power to kill a Murderer, both to
deter others from doing the like Injury, which no Reparation can compensate, by
the Example of the punishment that attends it from every body, and also to secure
men from the attempts of a Criminal.” Thus it is not clear what “special authority” Nozick thinks is needed over and above the power which each individual has
to respond with lethal force where necessary against someone, who has “declared
War against all Mankind, and therefore may be destroyed as a Lyon or a Tyger,
one of those wild Savage Beasts, with whom Men can have no Society nor Security”
[ibid.].
As for lesser crimes than murder, Locke allows that “Each Transgression may be
punished to that degree, and with so much Severity as will suffice to make it an ill
bargain to the Offender, give him cause to repent, and terrifie others from doing the
like” [ibid., 274] Nozick, however, thinks the devil is in the details, and that a system
of open punishment is likely to become a shambles, and thus prove an entirely
unreliable method of correction. If Nozick is concerned that leaving punishment
up to anyone who feels disposed to dish it out is “defective,” we could insist that
the victim, if willing and able, should have first crack, assisted by anyone inclined
to help. Nozick again would object that while a victim is owed compensation, he
is not owed punishment, so he has no “special right to punish or be the punisher”
[ibid.,138].
5.0.4
Nozick on punishment.
Because of the supposed difficulties in determining who has a right to punish, Nozick recommends “that all concerned (namely, everyone) jointly act to punish or
empower someone to punish,” which would in turn “require some institutional apparatus or mode of decision within the state of nature itself” [ibid.,139] Such a
suggestion would reinforce Nozick’s view that what Rothbard called the immaculate conception of the state is not prejudiced by preventing the last holdouts against
169
monopoly provision of protection services from resorting to self-help, provided that
the non-joiners are compensated for being thus disadvantaged. Requiring that all
have a right to punish, rather than just the victim or his surrogates, virtually
guarantees that there will be “no neat way to understand how the right to punish would operate within a state of nature” Of course, it also leaves Nozick with
the task of defending collective rights, something which may well prove less than
straightforward.3
However, in his enthusiasm for the minimal state, Nozick has overlooked at
least one famous chapter in legal history, namely outlawry as a mechanism for
allowing the participation of all, or at least anyone, in punishment. Nozick thought
it important that the offender not owe a duty of punishment to the victim. Maybe
so, but under the outlaw doctrine the offender is placed beyond the protection of
the law, which is to say he is subject to the same “open season” as he declared
upon his victims, and pace Nozick, appears well suited to the state of nature.
As Pollock and Maitland explain, outlawry is an ancient weapon for communities
lacking professional enforcement, where “to pursue the outlaw and knock him on
the head as though he were a wild beast is the right and duty of every law-abiding
man. ‘Let him bear the wolf’s head’: this phrase is in use even in the thirteenth
century.” [1978, 476].
With reference to Nozick’s concern about “some institutional apparatus,” Rothbard reminds us again that since law can develop quite independently of any state,
the appropriate institutions for adjudication and dispute resolution would also be
produced as needed [2002, 236] Nozick thinks that the dominant protection agency
is right to prevent hold-outs from using such “unreliable procedures for enforcing
justice,” a prohibition which in turn transforms the agency into the de facto state.
However, as Rothbard again points out, the ugly history of the state is unlikely to
inspire much confidence in its reliability. As for the right to prevent hold-outs from
engaging in the risky activity of not getting on the bandwagon, Rothbard considers
such coercion as an “impermissible aggression against the rights of others” [ibid.,
238-239].
However, Nozick insists that there is nothing untoward in coercing the holdouts,
which is to say, contrary to what I have suggested, that the protective association
is not a protection racket, because, as he puts it, “Protective services are productive and benefit their recipient, whereas the “protection racket” is not productive”
[ibid., 86]. Such a distinction supposedly allows Nozick to rule out blackmail, since
it is not productive, which is to say that “his victims would be as well off if the
blackmailer did not exist at all, and so wasn’t threatening them” [ibid., 85]. Productive exchanges, on the other hand “are those that make the purchasers better
off than if the seller had nothing at all to do with them” [ibid., 83]. An example of
the latter is neighbour A, who agrees for a fee not to go ahead with plans to put
up a structure that B would find offensive. If A did not have bona fide plans to
build anything, but attempted to cash in on the threat of doing so, this would not
3
cf. Narveson, “Collective Rights” [2002a,225ff].
170
be productive.
5.0.5
Blackmail revisited.
Blackmail is a similarly unproductive activity for Nozick though it apparently has
nothing to do with the blackmailer’s threat not being genuine. It simply has to do
with the entirely gratuitous presence of the blackmailer, such that his victims would
be better off if he had never appeared. Of course, the same could be said of the real
or imaginary neighbourhood developer, which is to say that the distinction between
productive and unproductive exchanges sounds more and more like the proverbial
distinction without a difference. If so, it will prove quite unable to do the work
Nozick had planned for it, namely to justify compensation for the coercion of holdouts against a protective monopoly/proto-state. Indeed, Rothbard and Gordon
have suggested turning Nozick’s notion of unproductive exchange back on his own
derivation of the State: “If the dominant protective agency did not exist, then
clients of the other, non-dominant agencies would be better off, since they prefer
dealing with these independent agencies.But then on Nozick’s own showing, on his
own “drop dead” principle, these clients have become the victims of a nonproductive
exchange with the dominant protective agency and are therefore entitled to prohibit
the activities of the dominant agency.”4
Since Nozick’s valiant effort to distinguish the genuine protective services of the
nascent state from those of a protection racket [ibid., 86] has amounted to nought,
we should take stock as to where this leaves us. As Narveson has recently pointed
out, there are those who want to be governed, that is, hand over their right to
protect themselves to an agency they believe can do a better job of it, and those
who don’t. While it is true that a democracy can ride roughshod over the wishes
of the minority, when it comes to contracting with a protective agency, as we have
seen, unmade contracts are nullities and give rise to no rights of enforcement, or
anything else, for that matter. Rather, as Narveson suggests, there is a question
about “the eligibility of any centralized agency to claim the right to decide about
all matters, domestic and foreign. Where would it get this right? Again, the answer
seems clear enough on the libertarian view: it has it if and only if the individuals
who participate in these “matters” give it to them” [2008b, 107].
5.0.6
Anscombe on authority
If, as we have suggested, individuals have not conferred any such right on a central
agency, then there appears much to be said for the view, as Anscombe puts it, that
“government is a refined and grandiose banditry” who “clothe themselves in the
luxurious cloak of authority” [1981, 136]. While Anscombe is to be commended for
such a characterization of the libertarian position, like Nozick, she herself holds on
4
cf. Rothbard [2002, n.35,245]
171
the contrary that the civil authority does have a right to coerce and use violence
in a way that the Mafia does not. Anscombe argues that such a right is derived
from “a human need that there should be government and laws backed by force”
[ibid.] The task of government could not be accomplished without “extensive civic
obedience,” and the right of the governors to use force. Therefore, she concludes,
“those who by right exercise the powers of government have authority in the sense
which I have argued we need” [ibid., 137].
While Anscombe’s attempt to derive the right to govern from human need appears at least prima facie to avoid the question of consent, we should press her
further on her first premise, where the need for government was thought to follow
from the fact”that some men do not leave others in peace, though these are peaceable, but will attack them and violently impede their activities and enterprises”
[ibid.,135-136] However, as we have pointed out, while the use of force against
those who do not let others live and work in peace is justifiable, Anscombe has not
shown why something called government should have a monopoly on such force, or,
as she puts it, why we need “a top decision making machinery in a large complex
society” [ibid.,153].
While not addressing the question of a monopoly, as such, Anscombe implies
that top-down decision making is by definition in the hands of the few “who by
right exercise the powers of government,” in order to coordinate the activities of
the large masses of humanity [ibid.,137] We would respond,of course, that if we
can manage, for example, to feed, house and clothe most people without the aid of
government, there is some question as to whether we really need it for any of the
activities which have historically fallen under its mandate. Anscombe, however,
believes that private coordination, or what Hayek calls “spontaneously ordering
forces” [1975, 41], cannot supply the requisite machinery in large societies, since
“only in very simple societies is custom sufficient” [ibid.].
Thus on Anscombe’s account we cannot hope to explain the right of the civil
authority to forcefully impose solutions as a customary one, derived from ways in
which communities had historically developed their own procedures. Authoritative
acts of the civil governors are not acts of self-help writ large: “The role of the civil
power in using a standing force cannot be assimilated to that of a passer-by who
sees someone set on by a thug” [ibid., 146] Contrary to the Lockean tradition which
assumes “a private right of punishment in a state of nature,” Anscombe holds that
“civil society is the bearer of rights of coercion not possibly existent among men
without a government” [ibid., 147].
In supposedly rejecting the view that civil authority arises “by a transfer of
rights already possessed by men without a state,” Anscombe is no closer to explaining how it is that the state can acquire rights sharply discontinuous with
those of ordinary mortals. Indeed she acknowledges that “the idea of civic authority, so far as it threatens coercion against any defiance of its laws (no matter what
they may be) seems to pull itself up by its own bootstraps” [ibid., 153] In this
respect the source of the authority of the state turns out to be on a par with tran172
substantiation, about which Anscombe observed that: “When we call something a
mystery, we mean that we cannot iron out the difficulties about understanding it
and demonstrate once for all that it is perfectly possible” [ibid., 109].
Pace Anscombe, we hold with Jasay that authority must indeed be generated
in anarchy, which is to say, as Green points out, it “can be provided without the
need for a higher level enforcement mechanism” [1988, 147]. If it can’t be generated
in the absence of higher level enforcement, as Anscombe suggests, then we have a
situation where “the agent itself cannot be bound by contract to any of the parties
as its principals if it is true that binding contracts require an agent for enforcement,
since the supposition of an enforcing meta-agent to make the agent fulfill its contract
would have to rely on the notorious infinite regress” [1997, 21].
Moreover, in addition to Juvenal’s ancient question: Quis custodiet ipsos custodes? coming back with a vengeance, there is also Green’s point that if authority
can be generated in the absence of higher level enforcement, why we would need to
provide political authority in the first place. With respect to taxes, for example:
“After all, if we could convince rational agents to obey laws requiring that they pay
taxes, then could we not use a similar argument to show them the rationality of
paying taxes, laws or no?” Indeed we could, given that “authority is much less likely
to be produced than are many of the first order public goods that are supposed to
justify it in the first place” [ibid.,147,149]. Thus Jasay concludes definitively that
“there is then no contractual exit from the state of nature: if the state is to be
created by contract, it cannot be created, since it is its own antecedent condition”
[ibid., 22].
5.1
The appeal of anarchy
In the course of this discussion we have repulsed Edmundson’s attack on anarchy,
though as he himself reminds us “to establish a conclusion, it is never enough to
expose the fallacious arguments for its denial” [ibid. ,180] In this respect, we have
not simply exposed Edmundson’s errors but have considered other attempts to stave
off the anarchic day of reckoning, finding them similarly wanting. So where then
does this leave the project of order without the state? At the very least, as Boettke
has observed, it continues to be a lively research program “not only valuable at
a fundamental theoretical level, but also of practical significance as well” [2005,
215-216].
Perhaps we should emphasize again that in questioning the authority of the
state, we are not questioning the need for order. Or as Hasnas has recently put it,
what we are contemplating is “a society without government, not a society without
governance. A society with no mechanism for bringing order to human existence is
oxymoronic; it is not “society” at all. Indeed, on the subject of coercion, with which
we began this discussion, Hasnas says that in order to make a case for anarchy, he
is not arguing for a society without coercion, but only one where “human beings
173
can live together successfully and prosper in the absence of a centralized coercive
authority” [2008, 112].
To those who think that government is necessary to produce the laws which will
enable us to live together in peace and harmony, Hasnas reminds us of the long
tradition of common law which preceded anything like government as we now know
it. Common law has the advantage of not being derived from political sources, but
of having grown up in the context of settling actual disputes between individuals,
creating “the rules necessary for a peaceful society with minimal infringement upon
individual liberty” [ibid., 116]. Such rules are part of the communal heritage, and
unlike much contemporary legislation, do not run counter to the ordinary moral
understandings of the proverbial man in the Clapham omnibus.
As for the courts, which Hasnas sees recovering their powers of independent
adjudication, he reminds us that “tax supported courts of general jurisdiction are
an entirely modern phenomenon” [ibid., 121]. As noted earlier, the commercial
courts continue to this day to mediate mercantile disputes, quite independent of
any government oversight, to say nothing of the myriad tribunals and systems of
private arbitration, which have burgeoned as their public counterparts have become
mired in inefficiency. Thus we would have no trouble envisaging how other bodies
might fill in the spaces left by the eventual departure of much of the machinery of
the public administration of justice.
While many have little trouble in imagining a largely private and independent
system of arbitration, which assesses fees directly on litigants, some may contend
that policing must remain a government monopoly. Again Hasnas points out that
government supported police are also a relatively recent development, beginning
with the Runners of the Bow Street Magistrates’ Court in London in the late
18th century [ibid., 122]. However, as Benson shows, the establishment of the
metropolitan police did not happen overnight, since many Britons were not anxious
to emulate the aggressive style of French policing developed under the ancien régime
[1990, 74-75]. Similar suspicions were confirmed by the arrival of police departments
in American cities around the middle of the 19th century, where as Benson notes,
they were first and foremost creatures of their political bosses. In many ways not
much has changed in the intervening century or so, since corruption is still quite
widespread, and most crime goes unreported, suggesting we may have much to gain
from a return to the “greater private sector involvement in criminal justice that
disappeared centuries ago in the face of efforts by kings to expand their revenues
and power” [1998, 224-226].
Of course, in another sense the private provision of security has never quite
died out, no doubt because many have always realized that sovereign monopoly
had little to do with individual security. Benson reminds us, for example, that
the period when public police were in the ascendant also saw the establishment
of many prominent private protection agencies which have continued to prosper,
apparently because of their ability to provide better service than their tax-supported
counterparts [ibid.] Indeed, Hasnas argues that a private system could hardly do
174
worse than a publically funded one, which requires “all members of society to pay
them regardless of the quality of service they render, and invest them with the
discretion to employ resources and determine law enforcement priorities however
they see fit subject only to the whims of their political paymasters” [ibid., 125].
While Morris seems to agree that a private security system may perform the
same functions at least as well as a public one, he reminds us that in doing so,
the private system provides “benefits that are also indivisible and nonexcludable”
suggesting that it may not be possible to efficiently provide law and order in the
absence of a state. This is the standard public goods defence of the state, to the
effect that free-riding would cause privately produced order to be underproduced,
which Morris admits “has been under attack in recent years” [1998, 61], an attack
which we have also continued to press.
However, as Hasnas points out, the fact that private policing would generate
uncompensated positive externalities in the form of deterrence is no reason to think
that such services would be underproduced. On the contrary: “The evidence that
police services and courts are not public goods is that, like lighthouses, television
and the internet, they have been supplied non-politically for most of human history”
Indeed, as Hasnas further remarks,”it is difficult to think of any useful activity that
does not produce some uncompensated positive externality” [ibid.,128,]In addition
to paying attention to such matters as personal hygiene and dress, most of us perform duties of non-maleficence, as well as the occasional duty of beneficence.Indeed,
as Hasnas reminds us time and again, if we want examples of the anarchic production of public goods they are all around us. Or as we noted earlier, schemes for
providing such goods are not dependent on “political entrepreneurs,” as Jasay calls
them, but rather there are private suppliers happy to risk being played for a sucker
because they themselves want some good badly enough. Under non-political provision people make their own choices about being sucker or free-rider, rather than
have those roles assigned via the political process.5
Although many would have little trouble seeing how we might increase the share
of the private market in protection services within a country, they may have more
trouble doing so when it comes to the defence of the country as a whole. Hasnas
admits that if we are talking about the sort of massive defence spending that now
goes on, it is hard for that to be provided without a government. What isn’t clear
of course is how much of the massive defence arsenal of a country such as the US is
really necessary to the defence of its citizens. Indeed, in view of the colossal security
failure of 9/11, it seems about as effective as the Maginot Line. Of course, in order
to decide if the US is actually in the business of protection, and not of latter-day
Caesarism, then, as Hasnas suggests, we need some reliable assessment both of the
external threat, and of the proportion of defence spending really proportional to
that threat [ibid., 33].
If Hasnas is right that it is not reasonable to expect the state to wither away
overnight, the provision of national defence may well be one of the last bastions
5
cf. Jasay [2002, 29].
175
of government to fall. While of course the best solution for all would be for all
states to disarm, leading by example is not necessarily the wisest course. Indeed,
it seems for as long as there are states, at least the threat of war may be needed
as a way of gaining concessions from a holdout state which otherwise would have
little incentive to do so. Not that this is likely to be of much comfort, since as
Jasay comments,”collective choice inspired by nationalism fails in its own purpose
and gets entrapped in irrationality,” to say nothing of the fact that it “would have
a hard time withstanding the test of morality” [2002, 70]. The reason Jasay holds
that collective choice gets entrapped in its own irrationality is that it breaks the
nexus “between benefits enjoyed and costs borne by any individual,” which is to
say “it becomes individually rational for some people to make everyone pay for
something that benefits them alone” [ibid., 70].
5.1.1
The private production of defence.
As Hoppe points out, the sovereign is no exception, in that he obtains his security
at the expense of others. The way in which he is different is that he has arrogated to
himself the office of “a compulsory territorial monopolist of protection,” with “the
power to impose taxes in order to provide security collectively” [2003,336] Of course,
the fact that the sovereign turns out to be “an expropriating property protector”
should make one wonder how it is that he is able to provide protection for his subjects that they could not provide for themselves. On the contrary, as Hoppe argues,
“collective security, it would seem, is not better than private security. Rather, it
is the private security of the state S, achieved through the expropriation,i.e., the
economic disarmament of its subjects” [ibid., 337]. Indeed, pious pronouncements
about the protection of life notwithstanding, Jasay notes that such expropriation
may also involve life and limb, “often for the good of nobody except those few
whose vanity is served” [ibid., 70], a fact no doubt obscured by what Owen called
the old lie, Dulce et decorum est pro patria mori[1987, 188-189].
However, Hoppe offers us an interesting way out of the contradictions of collective choice in the service of the nation/state by reminding us that defence is a
form of insurance [ibid., 346]. Companies which agreed to underwrite such risks
would possess the resources necessary to deal with real or imagined threats, being
part of “a network of contractual agreements of mutual assistance and arbitration
as well as a system of international reinsurance agencies, representing a combined
economic power which dwarfs that of most governments” [ibid., 347] Just as regular
insurance excludes certain misadventures initiated by the client, so defence insurance would “systematically exclude (prohibit) all provocative and aggressive action
among its own clients” [ibid., 348].
Under the present arrangement of states there is not the same disincentive to
aggressive behaviour as under an international insurance market, since a state can
externalize the costs of its aggression onto its taxpayers. Indeed, Hoppe argues
that there is a tendency for hostilities to escalate into total war, for example, of all
176
Israelis against all Palestinians, since all subjects are implicated in the wars waged
by their respective states which by definition monopolize protection and taxation.
However, in a possible post-state world, aggressors would have an incentive to
confine hostilities to their uninsured foreign counterparts, lest they provoke response
from very powerful international insurers with strong incentives to protect their
clients. Such insurers would no doubt contract out protective services in the way
states have done in recent years to the private military industry, whose ability
to wage war, like that of many other players in a great variety of endeavours on
the international scene, has, as P.W. Singer notes, “become a globalized function”
[2003, 242]. Indeed, speaking of one such firm, Scahill observes that “by 2007,
Blackwater had its forces deployed in at least nine countries. Some twenty-three
hundred private Blackwater troops were spread across the globe along with another
twenty-one thousand contractors in its database should the need for their services
arise” [2007, 377].
Moreover, Hoppe further contends that a free territory consisting only of private property owners and their insurers could exist with a state nearby, which is by
definition more aggressive, and therefore a threat to such owners and their insurers.
The latter of course have a strong incentive to neutralize threats coming both from
within and from without; thus they would expel criminals from their neighbourhood, as well as control any influx of government agents from outside. Hoppe also
argues that a nearby state might have some difficulty in convincing its agents to
attack a non-aggressive free territory, since as Hume observed, government depends
on opinion rather than on force,and “this maxim extends to the most despotic and
most military governments, as well as to the most free and most popular” [2003,
16].
Even if we think that the favourable opinion of his subjects and the possible loss
of legitimacy might not be a strong enough bulwark against unilateral aggression,
Hoppe reminds us that in a free territory its citizens would not have been disarmed
like their state counterparts and therefore more than able to defend their property,
with defence contractors supplying more sophisticated weaponry if needed. However, unlike a state, an insurance company cannot afford to allow a counterattack to
degenerate into total war, and will therefore confine itself to surgical strikes against
particular aggressors, thus minimizing collateral damage. In delivering such a precise response, they could sway public opinion against the state aggressors, perhaps
leading to the latter’s downfall, and the eventual replacement of state protection
by private profit-loss underwriters [ibid., 368] .
5.1.2
Responses to Holcombe.
After canvassing most of the common arguments in support of the state, many
of which have been discussed in one form or another above, Holcombe concludes
that “all of them have serious problems” [2007, 159]. For example, with respect
to the claim that government is necessary to produce public goods, more often
177
than not government has simply decided to offer unrestrained access to certain
goods, not that it was impossible to restrict access. Typically, state production
of such goods results in inefficiencies of overproduction- near empty transit busesor underproduction-20% of the population without a primary care physician. As
an example of a public good which the market supplies very effectively, Holcombe
cites microcomputer software, which has in practice turned out to be non-excludable
because of the ease with which it can be copied. Moreover, if Bill Gates is any sort of
paradigm case, “the characteristics of nonexcludability and collective consumption
do not rule out profitable production in the private sector” [1996, 111].
On the other hand, if the rationale for government is to control externalities,
Holcombe points out that most of those are generated by poorly defined property
rights, but rather than expedite the latter, states often place all sorts of stumbling
blocks in the way.6 Indeed as Holcombe argues, there are law and contract traditions
antedating the state which have proved much better at internalizing externalities,
whereas “government regulations often facilitate the generation of externalities,
because they can permit the creation of externalities that are protected by law”
[ibid., 155]. As for the view that it is reasonable for us to contract into a government
to solve problems which would arise in the absence of one, such a view, Holcombe
observes, “obviously does not answer the question of why we do have government,
and also falls short as a theory of why we should have government” [ibid., 156].
As we have argued above, various writers have shown that government coercion
is not necessary to establishing a cooperative order. Indeed, without cooperation we
could not establish a government in the first place. As Holcombe concludes,”while
the social contract theory of the state is grounded on a normative foundation of
unanimous agreement and Pareto improvements, the modern democratic state operates by forcibly extracting resources from some for the benefit of others” [ibid.,
157]. Although Holcombe agrees with our contention that the standard arguments
for the state do not withstand critical scrutiny, he does not think it time to abandon
the ship of state altogether. When we ask why governments actually exist, it is
because some people have forcibly imposed them on others. If anarchy is not an
appealing option, in the absence of government, albeit forcibly imposed, there will
be nothing to prevent other predatory gangs plundering from the peaceful citizenry.
Were such a Mafia to establish a monopoly in a given area, it would become the
de facto government, exchanging protection for tribute, as has been the habit of
governments throughout history.
Not only does the establishment of a monopoly enforcer bring an end to the
cycle of predation, but according to Holcombe, citizens will find it in their interest
to constrain the maximizing tendencies of their inevitable rulers by preemptively
setting up limited government. However, if governments come about because some
manage to impose them by force, then preemptively seizing the reins of government
would seem to be the exception rather than the rule. Holcombe thinks something
like this happened in the case of the United States, though he agrees, that if the
6
cf.DeSoto [2000,20].
178
purpose was to create limited government, the exercise has long since failed,[ibid.,
163] with democracy having supplanted liberty as the driving principle of American
government [2002, 250].
By arguing that we are better to govern ourselves than have someone even more
predatory do it for us, assuming we can reliably separate the more from the less
predatory, Holcombe implies that the redistributive game called democracy is a
case of governing ourselves, a view we earlier questioned. Even if we thought that
one of the good features of democracy as we know it was that it enabled us to
ride with the hunt, rather than run with the hounds, or something offering even
less opportunity for predation, as we noted above, the churning associated with
redistribution does not guarantee that it is invariably Peter who is robbed to pay
Paul.
Nevertheless, Holcombe is convinced that “anarchy is not a feasible alternative,
so the only liberty preserving option is to create a limited government” Although
he admits on the one hand that the US appears to have been much more interested
in preserving democracy rather than liberty, he still holds that “it is among the
freest places on earth,”[2007, 163] something we have also had occasion to question.
We would of course suggest to an advocate of the minimal state, such as Holcombe,
that he not only heed Thoreau’s motto, “that government is best which governs
least,” but also what Thoreau thought it implied, namely, “that government is best
which governs not at all” [1993, 1, 27]. Indeed, as Narveson concludes: “If we are
arguing on the plane of high moral theory, anarchism looks to rule the day. The
minimal stater can’t urge realism against the anarchist, since his program is just as
unrealistic; and it’s hard to see how any genuinely principled case can be made for
retaining a barely discernible government as against none at all. So the case rests”
[ 2008b, 110].
5.2
Summary
While Edmundson appears to have taken the role of democracy as a source of authority largely for granted, in our concluding discussion we pick up the thread of
his argument again, paying particular attention to the third of the fallacies which
anarchism allegedly ran afoul of, namely, by declaring an area of private morality
off limits to the state. While we have contended that the privately produced good
of morality has the ability to render most state activity redundant, our concern
has been rather that in the dominant malum prohibitum variety of law, the state
claims authority to legislate in an area which is off limits to morality. According to
Edmundson the state also rightly asserts a duty of non-interference in the administration of its laws, the failure to recognize which is another of anarchism’s supposed
fallacies. But the duty to obey laws which are moral nullities, consisting as they do
of prohibitions having no other rationale than that the state has prohibited them,
cannot be a moral one.
179
In order to respond to this difficulty, some writers such as Nagel proclaim a
discontinuity between the morality of individuals and that of the state. In our view,
however, the state does not possess moral rationales unavailable to individuals,
which is to say we reject any doctrine of raison d’tat. While Edmundson claims
to deny Nagel’s discontinuity thesis, in order to ensure that the law may reach
wherever morality does, he also holds that there are moral requirements only the
state may enforce, such as rendering aid to those in distress. Indeed the state claims
an exclusive right to enforcement, which we also reject, since it appears to have no
other foundation than the myth of the supreme ruler of the universe who smiles
kindly upon his earthly vice-regents. Anscombe also favours sharply discontinuous
state rights, which she insists are not simply rights of self-help writ large. As to
how the state pulls itself up by its bootstraps appears to be as much of a mystery
as she thought transubstantiation was.
For those of us who hold that individual morality clearly underwrites self-help,
without which, moreover, there is no exit from the state of nature, non-coercive
solutions are available to questions of both internal and external security, for both of
which the state has typically been thought essential. Hoppe proposes an insurance
model for defence which is more likely to prevent hostilities escalating than the
present statist regime. As to the possible threat posed by a state to an adjacent
non-state jurisdiction, defence insurance contracts held by members of the latter,
coupled with the fact that they would not have been disarmed by a monopoly
protection agency masquerading as a state, should mean that they could neutralize
any such threat. Indeed, if anyone is guilty of fallacies, it is statists, like Edmundson,
rather than the anarchists he attempts to call to account.
180
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