The State, Government, Public, Associations, Us
Libertarians are notoriously unhappy with The State. It will be well to begin by explaining why, and for this we must define a few terms, viz. the ones mentioned in the heading. Consider, first, "us." "Us" refers to you and me, and the people you and I know. It is from personal association that we get most of the evidence we have for our ideas about people, and in particular the idea of the voluntary association. In such a configuration, you are a member only if you want to be a member, and only if it wants to have you. You may want to be a member of an existing association but find yourself rejected by it. You then have the option of trying to start your own, or finding another one to the same end, and so on.
The remaining terms get us into complexities. The public is, simply, everybody; but of course 'everybody' varies from context to context. What matters for presents purposes is that there are a lot of people included in "the public", and there is only one of you or of me. What unifies this set of people? Only that we have various contacts with each other. Of course, nobody has contact with everybody. What happens is that every member has contact with an appreciable number of other members, there being no discrete, isolated subsets who have no contact with any others, though there will be subsets which have a lot less to do with others than with fellow members of that subset. (Aficionados of these matters will note the employment of a device like the famous Fregean definition of the natural numbers.) Is the "public" an association? Its members associate with each other, to be sure; but there is no unifying structure, because the public has no purpose, even though all of its members have purposes a-plenty. The public simply is. And also, it is not (especially) voluntary. You just happen to be there, rather than having joined, and while you might be able to move elsewhere, you might not (mainly because where you went would have a government which doesn't want you).
What about the State? Roughly, the State is a public with a government; and a government is a smallish subset of the public which has somehow acquired the power to rule, that is to say, to make people do the things it wants them to. Membership in the public is not voluntary, and being under the control of its government is not voluntary. Everyone must "join", whether he likes it or not, and the 'must' really means business, for the State may enforce its commands by use of outright force. John Hospers remarks on a bumper sticker to the effect that "The Government is Armed and Dangerous", saying that the message of those stickers is "tragically true".1 Certainly true, anyway; whether 'tragically' remains to be seen.) It claims, indeed, a monopoly on the use of force, in the specific sense that private uses of force must be authorized by it, whereas its own employments of force, though they too need, in the favorable cases, to be authorized, are authorized by itself. In the case of nondemocratic states, this leaves the unwitting victim (= 'citizen') completely at the mercy of the government.
In democratic States, however, the claim will be made that the State's acts are all authorized by the free and sovereign people. This is worth a few remarks. Let us first consider the idea, as expounded by Hobbes, as it applies more generally to the State. Hobbes supposes a sort of plebiscite to establish the State by everyone's simultaneously handing over their power to the person who wins the election. Of course some wouldn't like the result.
Hobbes' argument proceeds as follows. Don't these other people, it may be said, nevertheless consent to the outcome of the election, whatever it may be? Thus Hobbes: "A commonwealth is said to be instituted, when a multitude of men do agree, and covenant, every one, with every one, that to whatsoever man or assembly of men, shall be given by the major part, the right to present the person of them all, that is to say, to be their representative; everyone, as well he that voted for it, as he that voted against it, shall authorize all the actions and judgments, of that man, or assembly of men, in the same manner, as if they were his own, to the end, to live peaceably amongst themselves, and be protected against other men."2 (Hobbes' emphases.)
Hobbes' argument is obviously reconstructive. Hobbes did not go around checking to see whether everyone did in fact do what he claims they did. The social contract idea requires that every rational person would do this, and we know he would do it because he must. So what Hobbes is arguing has to be that every individual necessarily has sufficient reason to authorize a smallish body of people to act for him in the manner indicated. That good reason is, as he says, to "live peaceably amongst themselves, and be protected against other men". The good reason is what grounds the whole business. We have in the foregoing been concerned to spell out further what the fundamental normative principles of general human association are, and that is an interpretation of the reason, if any, for having government. Unlike Hobbes, we take it that this reason limits government even if it also empowers it (if it does at all). We take this because his argument that the State must be unlimited in its powers is fallacious and, indeed, incoherent. If peace consists in us all being able to do as we wish, then a government which won't let us do so is violating peace, and is therefore illegitimate if the sole justification for government is to preserve the peace.
For the record, and because it is important: What happened in Hobbes' argument is that he confused two very different things: (1) that abstract "sovereignty" which consists in something or other's being superior to any one of us or any lesser group of us, and (2) the concrete institution, consisting of human beings, which is supposed to realize, exemplify, or instantiate thse abstract properties. But in fact, what has that "abstract sovereignty", as I call it, is the fundamental laws of morality themselves, and nothing else. They are supreme because they are defined as being so: the whole point of talking about such laws consists in the sense that we need such things to solve certain human problems, viz., those which arise due to our mutual interrelations. But there is no shred of an excuse for confusing the "sovereignty" of those laws themselves with whatever powers any of us might invest in any concrete institution - in any actual person or group of persons. There needs to be an argument for investing any degree of authority in any such body, and the argument should not consist in a confusion. In particular, it should invest just so much authority as is requisite for the purpose at hand, and no more.
There would now be two questions. First, do people all, in the required sense, rationally want to live in peace? And second, is it necessary to have a State to get them to do this? We have discussed the first one already in Part II. Peace in the sense of being able to depend on others' refraining from violence which would prevent one from pursuing one's own ends can reasonably be said to be something which everyone has sufficient reason to want. These reasons stem simply from the having of those ends. Only in very special and, as we may say, exotic cases can someone think that war in the same sense is better than peace in that sense. (Perhaps those conditions obtained in some technologically primitive societies for some people at some times.) But the clincher in any case is that those who do not want peace, or want it only for others in relation to themselves rather than vice versa, are on their own and may in principle be dealt with by any degree of violence we like.
The second question is where the "action" is in this Part; and it is immensely trickier. I have already pointed out that on Hobbesian reasoning, we ought to cooperate rather than to submit to an all-powerful sovereign, wherever feasible. Moral methods dominate political ones. But we must admit that people aren't perfect and enforcement may be called for. Furthermore, that such enforcement is legitimate may be said to be true essentially by definition (of the notion of rights).
But if enforcement is legitimate, then why should the fact that the State may enforce its laws disturb us? Any number of reasons.
- The things that the State thinks threaten you are things you may not feel threatened by at all - you may instead feel threatened by the State's attempts to "protect" you from them.
- Or they will protect you quite a lot more (or, on the other hand, less) thoroughly than you would be willing to pay for if you had the choice.
- Or you will find yourself shelling out money for the protection of other people, but getting precious little yourself.In fact, the people they are protecting with your money may strike you as among the ones you need protecting from rather than needing or deserving any protection themselves.
- Or you may dislike the particular methods they use. The prospect of The Knock on the Door by uniformed men who claim to have the authority to cart you off may be sufficiently unwelcome that you'd prefer to try some other way of doing things.
This is the central libertarian complaint, but even it needs some qualifying. Drawing again from the rich, fertile fields of the American bumper sticker, some may recall one that said, "America: Love it or Leave it!" The implication at that time was that if you aren't willing to pay a whole lot of money and perhaps a son or two to enable American soldiers to go about napalming Vietnamese peasants, then you can just move to some other snivelling country, and good riddance. Now, this is the sort of thing (details apart!) that a private club can legitimately say: "If you don't like what we do here, go somewhere else and do your own thing!" But is it something a nation-State can properly say? Of course it would sometimes be false that you "could" leave it. Try getting out of the Soviet Union if you are a citizen of that country! And it's also true that if you do leave country X, you have to go to country Y, which may well not let you in. Then what?
But this is still a matter of degree, though a very great one. If there were no nation-states, then it would still be true that if you are not wanted in some area where everything is already owned by others, you must find someone else who will take you on; and it is perhaps also true that those others may use guns to keep you out. But this is such a great difference in degree that it may seem a quibble to classify it as such. For there are only a couple of hundred States in the world, whereas there are several billion people; and it is most unlikely that every last one of them wouldn't want you for a neighbor (unless you are Clifford Olson, who murdered 43 boys after molesting them - in which case it is not clear that this is a relevant counterexample.)
A Note on Democracy
In what sense did "the people" authorize any particular law in a democratic state? The short answer is that in practically all cases, they didn't. But the answer is admittedly too short. The main feature of democracies to be invoked here is that the people who did make the laws are elected; and reasonably invoked, since that is virtually the defining feature of democracy.
A brief note on the theory of democracy is in order here. Democracy is 'rule by the people', but what does this mean? It can be demonstrated that this has to mean that those who rule are elected. Why must it mean this? Here is a short demonstration. In saying that democracy is "rule by the people", what we must mean, put more precisely, is that democracy involves an equal distribution of political power among the citizens. Were it unequal, and insofar as it is unequal, we would have rule by some lesser group: those with more power would have a greater say in determining what the laws are to be. (We assume, of course, that by 'democracy' we mean a theory of government, which is to say, a theory to be applied to the case where there is in fact some political power. We could make the distribution equal in another way by simply giving everyone zero such power. This would be the theory of anarchy, not government.)
Now let the set of people to be governed be too numerous to assemble in one place or permit of substantial discussion (true in essentially all the interesting cases). Beyond that point, some kind of indirect or representational procedure is inevitable. So democracy amounts to a theory of voting procedures.
As to majority rule: consider any issue on which there is any disagreement. Let the issue be resolvable by a pass-or-defeat vote - itself not easy, but we take the most favorable case; plainly any other will make matters worse. If we set the number required for passage higher than 50% + 1, then we give more power per person to the Nays. If we set it lower, the same measure could both pass and fail, which is inconsistent. The same applies to elections of representatives. Requirement of a greater majority than 50% will give unequal power of selection to those who would otherwise be in the minority.
An elected legislator will often, and is certainly in general free to, vote contrary to the known wishes of his electorate. More usually, he has little idea what those wishes are. And in any case, he is elected only by those who voted for him. But this is by no means all. Democracy has some inherent problems highly relevant to present concerns.
The Down Side of Democracy
The justification of democracy has usually been rather narrowly drawn. First, it is argued that we have to have a State of some kind; and then it is argued that if we are going to have a State of any kind, it had better be a democratic one - democracy is the least among necessary evils. The argument is certainly very persuasive, given the premise. If we are going to have such an institution, then whoever You may be, You are certainly going to want to have it on your side if possible. So you are going to want the power to select it, insofar as it is possible to have such power. Since You is everyone, however, the conclusion will have to be that this power is to be distributed equally among all those concerned: thus, democracy.
But the premise is problematic, for one thing. Perhaps we don't need a State. But much more importantly, what is established by any argument for the State is limited by that argument's premisses. The argument for the State from liberal premisses, if it works at all, works by showing us that having a State is better for everybody than not having one. If this is indeed the argument, then the same argument should show that if a given measure would not be better for everyone if subject to majority rule, then with respect to that item, we shouldn't have majority rule.
The theory of democracy is rife with exceptions to majority rule. Nobody thinks that civil rights should be subject to it, for example: whether you or I should, for no further reason at all, be flayed in the public square at noon tomorrow is not something to be determined by majority rule. Whether Jones' tax bill should be doubled next year just because a majority dislikes Jones is not an open question on any proper theory of democracy.
It should be a matter of great interest, then, that with respect to almost every matter, there are similar arguments against majority rule, and more especially rule by representatives who have attained their office as the result of electoral procedures. James Buchanan develops some of them: "Majority voting rules for reaching collective or group decisions will produce at least some budgetary components that are inefficient in net. ... Some projects that will secure majority approval will yield less in total benefits than they cost. The minority will suffer net losses from these projects, and these losses will exceed the benefits secured for members of the majority."3 Buchanan proposes a minimal efficiency constraint on collective budgetary decisions: "the estimated value of benefits from any proposal to the members of an effective majority coalition must exceed the tax costs borne by those members. Even this minimal constraint on budgetary inefficiency is not operative, however, when logrolling can take place among divergent minorities to produce effective majority coalitions on a subgroup of budgetary items. This procedure is familiarly known as "pork barrel" legislation in the American setting."4
When we move to consideration of the effects of legislation by elected representatives, the situation is still worse: "The politician's bias .. is an additional institutional aspect of the asymmetry between the spending and taxing sides of the fiscal account. Because taxes cannot readily be lowered in a differential manner, there is a public-goods barrier which inhibits independent politician initiative toward tax reduction. By contrast ... Given his degree of freedom to influence outomes, the nonideological politician's behavior will tend to generate an exaggerated version fo the nonpolitician model analyzed earlier. ... aggregate spending will tend to be inefficiently large even if the ultimate demands of voters-taxpayers-beneficiaries could be accurately reflected in final outcomes..."5
These results and others to similar effect are familiar fare for students of public choice theory. Their general drift is that democratic methods overwhelmingly tend to be inefficient. These inefficiencies are multiplied when the collective in question gets larger. They are, in fact, inefficiencies to scale. In huge-number cases such as a modern State, they will certainly be enormous. Indeed, they are enormous!
Well, what's so great about efficiency? - it might be asked. The answer is that the concept of inefficiency employed here is that someone is needlessly worse off: that individual can be made better off without making anyone else worse off. Just assume - what will, after all, certainly be true after even a modest number of iterations - that the losing individual is you. Perhaps that will add weight to the suggestion that these results should not be ignored.
The State claims to be an omnicompetent authority. Anything you do is something that the State must allow you to do: it has authority over all and sundry matters, and the citizen shall knuckle under, thank you very much. This is the theory of government under which humankind has lived for the past several thousand years. But a few moment's thought suffice to show us that it is a fraud, an outrage, a disgrace, and a travesty which no thinking person could put up with for a moment. The democratic theory of government represents an effort to modify the inherent of authoritarianism of government to an extent which would give it some reasonable semblance of acceptability. But on the face of it, it doesn't help much, since it substitutes for the one or the few people asserting authority a mob of you fellow humans.
But authorities must be authorized, and in the end the only person who can "authorize" anyone to do anything to you is you. All the rest is a sham, varying in degrees of barefacedness.
This does not mean that nobody ever has any authority to do anything. It means, instead, that the only authority a rational person acknowledges is authority that that person has good reason to accept. And one prominent reason for accepting it would be that you gave it to someone. Example: you join organization O, which gives person P the authority to write cheques in its name. A condition of remaining in the organization is that you accept a number of things, including things which imply, given various facts which you also know about, that P is currently the treasurer and the treasurer has signing authority on O's bank account. Or if you were a member of an organization that ran the roads, and its enforcement agents stopped you for violating one of its rules, then you would have reason for accepting the authority of that individual to do so. And so on.
Authority and Co-ordination
In Part II we considered at length the decision-theoretic problem known as "Prisoner's Dilemma". There are other dilemmas, however, and one of them that is of first importance in the present context is the Co-ordination Dilemma. Here is a simple example. Assume that Ms. Column and Mr. Row would be happy to spend some time with each other, and are indifferent between doing so at the beach or the park - both places are just fine. Being at either place without the other, on the other hand, would be most unsatisfactory. So we have:
The "dilemma" label is merited only by the fact that each one, striving to get a desirable outcome which both want, may not know which way to go. In the absence of communication, and given the facts about their preferences, there is only a 50% chance that they'll end up in one of the desired situations. This is due to there being too much of a good thing: if they both preferred the beach, say, then there'd be no problem.
How do we solve a problem like this? Ultimately, by two devices: (a) an arbitrary mechanism for selecting one alternative rather than another, and (b) an agreement among the parties to be guided by that particular device. E.g., Ms. Column flips a coin and Mr. Row agrees to go wherever Ms. Column says. Or, to move to our political context, someone decides that all cars will keep to the right, and everyone agrees to drive on whichever side that person says. In the case of cars, there are not just two people, but millions. In the absence of coordination, the roads would be unusable by such vehicles as cars. Even pedestrians and bicycles may need coordination.
The central point about coordination, then, is that the outcome in which everyone acts in one way or everyone acts in another way is preferred by all to any outcome in which people act independently. The problem is only how to secure this outcome, and not on its merits, once secured. Real-life situations will usually have some aspects of each, of course, and that may further complicate matters.
The moral for politics may be that we need an authority to provide coordination. Instead of everyone looking to see what everyone else is doing, everyone simply does what the authority says to do, thus saving nuisance and effectively achieving an uncontroversially desirable result. Needless to say, we will often have situations in which this happy simplicity is not present. Then we may have to tot up the advantages of coordination against the disadvantages of the particular outcome chosen by the authority.
Are the facts about coordination any justification of the State? There are two points to consider. First, since everyone presumably desires the uniformity which it is the point of the authority in question to impose, it should not in principle be necessary to visit severe penalties on offenders. And if the outcome of the exercise of authority is not desired by all, then this justification can't be used. On the other hand, of course, there may be people who just like to cause trouble; and in any case, the amount of trouble that may be caused by deviating from the established rule may be very great - the rule of the road being an excellent case in point. But even criminals do not habitually drive on the wrong side of the road! Whether a State is needed to exercise the authority that may be required is what may be questioned from this point of view. Second, it may or may not be that efficiency is achieved by having a single centralized agency providing coordinative authority for all purposes. Most likely, however, it will not be. In any case, it is certainly not theoretically necessary. What matters is that effective coordination be achieved, and not who achieves it; in particular, it doesn't matter whether the authority achieving it in case X is the same as the authority achieving it in case Y.
Some theorists make a good deal of the coordinative function of the State. (John Finnis comes to mind.6) But it is not clear how far such considerations will take us in the direction of the State. Not, I suspect, so very far.
The Right to Protection
It is important to be clear that the right to protection that follows from our fundamentally negative right to liberty is also, therefore, fundamentally negative. Thus if by the 'right to protection' is meant the positive right that other people protect you, then it is not automatically on the libertarian agenda. What is on it is the right that others not, in various ways, molest you. If people threaten to molest you, then there is a practical question what to do about it. This may be answered by enlisting the aid of others, who may help you for various possible reasons: out of their own free wills, because they like you or perhaps because they have a touch of Wyatt Earpism and like a good fight so long as they are siding with the good guys, or in exchange for something, such as a monetary fee or because they belong to your Protection Co-operative and it's their turn. But people who protect you without (and contrary to) your permission are invading your rights, as are the original molesters. And people who not only do that, but who then charge you for it and force you at gunpoint to pay are combining the two violations. Yet that would seem to be precisely the situation of the State. It should now be clear that there is indeed a complaint.
Protection, and Nozick's Argument for the State
Is there something special about protection, which makes it peculiarly eligible for relegating to a central agency? It has generally been thought so, including by many libertarians, who favor what is called the "nightwatchman State", whose only function is to protect the citizens from force and fraud. But is there truly good reason for this? Robert Nozick's argument for the legitimacy of the "minimal state" is an attempt to underwrite this view, and is worth looking at in some detail. My examination is designed to establish two points: First, that the argument, whether or not it is successful for its intended end, clearly wouldn't establish the legitimacy of the State in its contemporary sense even insofar as it concerns the protective function alone. And second, that the argument is of a type which would, if it works at all, surely be able to establish the legitimacy of an equally state-like apparatus for other functions, contrary to Nozick's explicit intentions.
The argument assumes we begin with a Lockean-type anarchy: people accept our libertarian rights, but don't perfectly live up to them, and some of them flout them pretty badly, giving rise to the need for protection. People form protective associations, which due to the action of various plausible market forces eventuate in its being the case that in any given area, a single agency has a monopoly of protective force. The plausible market forces in question are, notice, essential to the argument. Suppose that Agency A can offer better protection at a lower price than Agency B: people will gravitate toward it. But this will enable it to offer still better protection, for more people will be its clients; like co-purchasers of automobile liability insurance from the same agency who run into each other, enabling the company to settle with itself out of court, saving immensely on collection costs, some of the savings of which it can pass on to the consumer, thus making A's package still more attractive. And then in the nature of the case, the bigger protection firm will have more "clout" if it came to a hands-down fight with firm B, and this too will make it more attractive to the consumer. A natural monopoly will, then, emerge. And the result will be - what? Well, there will be a few holdouts, perhaps. But these people will be forced to deal with A, because almost everybody has bought into A.
There are further important complications concerning the administration of the Lockean laws, in particular concerning the reliability of procedures for convicting people of violations. These terminate, again, in cases where it's the word of A against B; but if so, it becomes a question of who can make its side of the argument stick, and the answer is, of course, A, since it is by now a de facto monopoly. This will put it in the position of being able, in effect, to forbid competition. And A will have to end up underwriting the protection of those few who will still want to hold out on their own, because it must compensate them for depriving them of viable options.
Though each person has a right to act correctly to prohibit others from violating rights .... only the dominant protective association will be able, without sanction, to enforce correctness as it sees it. Its power makes it the arbiter of correctness ... not ... that might makes right. But might does make enforced prohibitions, even if no one thinks the mighty have a special entitlement to have realized in the world their own view of which prohibitions are correctly enforced
...What is the explanation of how a minimal state arises? The dominant protctive association with the monopoly element is morally required to compensate for the disadvantages it imposes upon those it prohibits from self-help activities against its clients. Voilà: the Minimal State!7
What makes it a State? The facts that (1) it has a monopoly of force (part of the definition of a State), and (2) it caters to everyone within its area, whether they like it or not, distributing the costs of doing so among its other clients in cases of inability to pay.
Nozick doesn't add what seems to me a fairly important further item: it claims to justify its monopoly by reference to principles alleged to be authorized by its citizenry; i.e., it claims legitimacy along some such lines as those enunciated by Hobbes. The States you and I know about always do this. Nozick's State doesn't and doesn't claim to, in part because the assumption is that there are some principles that are simply true, independently of anybody's decisions about anything. Perhaps it doesn't matter whether the State makes any such claim. But it would matter whether the claim were justified if it made it. Is it?
(1) Now my first point: It certainly isn't a State in the sense we know about. Everyone in the State in question retains the right to withdraw from it at any time. Any subset of citizens could get together and declare independence. They could operate internally with their own set of laws, which they enforce upon each other with their own procedures - and the surrounding "State" couldn't do a thing about it. Try this in any contemporary State and see where it gets you!
To be sure, there are States and States. If Quebec were to have a referendum in which the populace voted with a resounding majority to withdraw from Canada and form a state unto itself, leaders of the rest of Canada have made it clear that they would make no effort to stop them by force, and that verbal efforts would likely lead merely to negotiations about the precise terms of withdrawal. If New England attempted this with the United State of America, one supposes from the historical record that things would be rather different. So it goes. But Canada in turn would not tolerate withdrawal by, say, the Hutterite Community in Alberta or the Romanian minority in some obscure part of Ontario. The point is that the Nozickian minimal State retains a remarkable degree of anarchy. A State which admits it does not have the right to compel all of its citizens to conform to its laws in every particular is not what most of us would be inclined to recognize as a State; we are recognizably at the margin, where the question whether A is a state or not becomes essentially terminological.
(2) There is a certain amount of hocus-pocus in Nozick's argument, to be sure. We will not discuss it here, especially since others have done so.8 But if it works at all, the argument appears to have the following general form. (a) Legitimate Association A comes very near to having the sort of monopoly of legitimate powers which States claim to have; (b) various considerations about the particular commodity A deals in bring it about that the gap between A and a genuine State can be effectively closed by a procedure of compensation for the few individuals separating its clientele from the whole population.
If this is a fair characterization of the procedure, then it is difficult to see why it should be confined to the particular commodity of protection.9 Isn't this essentially the argument of the phone companies, the electricity boards, and the gas people? Suppose we start with competing companies in area X, an area that is ideally suited for a single system of the type in question. Companies A and B start stringing up rival lines or whatever; A offers a marginally better deal, more people buy into A, the cost of installing services by B consequently rises (its customers are farther apart, A-users being frequently interspersed among them), A ends up buying out B, and the few who don't like it very much are strung along on their B contracts at B's prices and levels of service until those contracts expire, leaving the customers with a choice of A-gas or nothing - and the customer ends up just going along. Below we shall explore the prospects of universal health insurance along broadly (but not narrowly) similar lines. What is not clear is that there is all that much in the way of structural difference between the Nozickian State and the gas company.
People in Ontario, Canada, have little inclination to think that Ontario Hydro (the provincial electric power monopoly) is denying them a bunch of fundamental rights. This, to be sure, is in part because it isn't: anybody who wants to generate his own electricity in Ontario is welcome to go right ahead, and Hydro will be happy to buy up the excess or to supply deficiencies or provide back-up or whatever, and some actually do. Some people complain because Hydro has gone into nuclear power generation in a big (and, by the relevant standards, extremely successful) way. As things are, their complaint is essentially political, sinc Hydro is indeed a Provincially chartered public corporation. But what if the subject were a giant American private-enterprise electric corporation such as Con. Edison in New York? Would the power of any small set of objectors to affect its policy be materially different? Obviously not. In New York, rivals would have the right to try to establish an alternative company to compete for Con Ed's franchise, but competition for business of this kind with a company of that size is no easier - indeed, a great deal more difficult, one would think - than organizing enough voters to force Ontario Hydro to cease utilizing nuclear generation. Neither of which will happen until one of Hydro's generators goes berserk, in which case there would be hell to pay for any company utilizing them, public or private. Which is also not very dissimilar from the case with the public's protective agencies. Corruption in the police force, if uncovered, will cause a most remarkable row in any reasonably functioning democracy.
This does not leave us with no differences, but it narrows certain gaps to a quite significant degree, as will be seen further.
Part of our idea of law is that it should be authoritative over everyone in the geographical area occupied by the society whose law it is. We should ask a few questions about this. (1) Which "geographical area"? There is no coherent principle for drawing the boundaries of nation-States in the modern sense of the term; and if we take seriously the idea that every individual has the ultimate rights and that collectives are legitimate only if they are associations rather than forced collectivities, then this purely definitional attribute of law is seen to have no interest whatever for establishing whether or not a given person should be subject to a given law. (2) And then, is geographical continuity actually necessary? If we look again at associations, what we will find is that highly discontinuous associations nevertheless have rules and regulations, and succeed sufficiently in enforcing them, the primary enforcement procedure being simple ejection from the association.
This raises the question whether a society could be fully anarchic with respect to law. Could different sets of individuals intermixed in the same geographical area be subject to very different sets of "laws"? Up to a point, there is no doubt that they can, since to a degree they actually do. Different religious communities, for instance, can interlace and yet impose very different requirements on their members
Are these actually "laws", though? They certainly have some of the characteristics of law as we understand it. Those rules have generality and authority over the groups whose laws they are. Consequently, their members can use them to settle disputes by the process of weighing claims in the light of the rules in question, with appointed judges to engage in the weighing process.
What these partial sets of laws have in common is that they lack supreme authority over all, whether the individual has volunteered for coverage by them or not. That is the feature that we associate with law in the fullest sense of the term. And it is what makes the rule of law problematic if individual rights to liberty are to serve as its foundation. Given laws having that feature, we would be able to settle disputes between any two or more people in the society. Without them, where do we go?
The anarchist has at least a partial reply to this. He can point out that as things now are, different areas have different systems of law, so that when an individual from area Q goes to visit in area R and runs into a problem, there is a jurisdictional problem needing solution. And it is in fact solved by having representatives from the different systems meet and reach an agreement regarding the case in question. What would prevent the same solution being reached in a given area with rival legal systems obtaining within its bounds?10
Obviously there could be a practicality problem, especially if there were several such systems and not just two. Presumably there might also be a problem if some individuals belonged to no system whatever. However, there would seem to be a solution for this last problem. If individual A, subscribing to no legal system, got into trouble with an individual subscribing to System L, the administrators of L would simply apply their law to A, and that would be that. A is on her own.
But what about cases in which the respective legal systems of the differing parties could not reach an agreement? It is no good insisting that this can't happen. Nor is it any good saying that they would then "have to" reach agreement. For who would make them do so? Why would they "have to"? It is when we consider this possibility that the theorist is likely to resort to an idea of "natural" law. If everyone were equipped with an intuition of what is right and wrong, then a basis for agreement would always exist. Wouldn't it?
But it is fairly pointless to suppose this to be the case. And even those who think it is, like Locke, accept the possibility that there will be insoluble differences of interpretation about how that Law applies to particular cases. We are then back to the original problem which drove Locke to embrace Civil Government as the cure for all ills. But as we have seen, any Government inherently faces the problem of legitimacy from the point of view of non-consenting individuals, and we would seem to be off and running again.
A possible solution to this kind of problem may go as follows. When individuals from rival systems run into a problem of the kind we have envisaged, and efforts to reach agreement by representatives of the respective systems fail, the parties would have two options. Either (1) they would consent to a procedure of binding arbitration, or (2) it would be "settled" by force. If it is objected that force doesn't settle anything, the reply is that that is perfectly true. All it does is to leave just one party in the field. If that isn't satisfactory, then the case for preferring binding arbitration is evidently made. And if it isn't satisfactory, then that is testimony to the truth of our guiding assumption here, that the State needs justification and that it will not be easy to supply it.
Enforcement and the Problem of Punishment
If we need to enforce laws, how do we do so? One of the most vexed areas of moral philosophy has been the theory of punishment, and we can hardly undertake a full-fledged study of the subject here. Nevertheless, there is an interesting, distinctively libertarian suggestion that is worth serious thought.
To begin, we should distinguish between 'enforcement' in the narrow sense of that term, in which it is virtually equated with 'punishment' and 'reinforcement.' Enforcement is part of a larger system which we may call 'reinforcement', and reinforcement, I have urged, has a central, or perhaps even the central role in moral philosophy. For an act to be obligatory or wrong is for it to be the case that its performance or nonperformance should be universally reinforced, positively or negatively. Positive reinforcement is reward - the carrot; negative is punishment - the stick. But the "stick" begins at home, and consists overwhelmingly of verbal reinforcement, accompanied by appropriate gestures and such.
The role of this level of reinforcement, basic to theory in my view, cannot be overemphasized in the larger context of criminal law. Studies have confirmed what common sense and Aristotle have both told us for a couple of millenia: if a child is properly brought up, he will have the disposition to cooperate and to obey reasonable rules.11 And if he is not, it is virtually certain that he won't.
This is so to the degree that one might wonder why we do not hold parents responsible for the crimes of their children, especially those committed in their 'teens. Some of libertarian persuasion will complain that this is a denial of human responsibility and basic freedom. But it is nothing of the sort. It would, on the contrary, be to hold responsible those who plainly are responsible for actions which violate our rightful liberty. The irresponsibility of children is a reflection of bad, and especially of inconsistent, upbringing by their parents. This is a correctible syndrome on the part of the parents. Needless to say, it would also be extremely and genuinely desirable for the children: faced with the choice between the kind of life generally available to the cooperative and law-abiding citizen and that led by the criminal, few will find the latter more attractive. But the basis for public concern about erring parents is not the well-being of their children, as such; it is the well-being of those who will be victims of the future criminal activities of the adults whom those children will ere long become.
Meanwhile, however, we must of course deal with those who do violate reasonably imposed requirements. Even at this level, it is clear that education is a nontrivial factor. One must wonder whether criminals genuinely believe that their crimes constitute rationally objectionable behavior, and if they do, why they continue to engage in it. The desirability, perhaps even the necessity, of effective verbal reinforcement at the adult level seems difficult in principle to deny. But we can't expect much in the way of results if this part of the job of dealing with criminal behavior is left to the likes of clerics. Criticizing rationally objectionable behavior in the light of nonrational theological doctrines is unpromising when those who engage in the behavior are rational adults rather than impressionable children.
Punishment: the Options
Still, this leaves us with the need for further responses to criminal behavior. There are three theories in the field at present, two of which are theories of punishment properly so called, and the third of which, while it can reasonably be classified as a "theory of punishment", is strictly a theory calling for a fundamentally different mode of responding to criminal acts. These are respectively those calling for retribution, deterrence/protection, and restitution or compensation. I offer a few remarks about the first two, and a little more about the third.
An important point to be born in mind throughout this discussion. Although for the sake of efficient exposition I use the term 'crime' to denote the set of actions we are concerned with here, it must be clearly understood that I am not using it in the sense of actions that are forbidden by the de facto criminal law of whatever community the acts in question take place in. Instead, we assume throughout that the acts forbidden are reasonably forbidden. The view that crime in the de facto sense ought to be punished is simply unacceptable. Bad laws should be eliminated, not enforced, and it is only slightly overly dramatic to suggest that those against whom they are enforced are the victims, those who enforce them the criminals.
Keeping this in mind, let's turn to the remarks in question, taking the three theories in order: retribution, deterrence/protection, and restitution.
So understood, our theories are in fact a mixed bag. The "retributionist" aims to visit the criminal with an amount of negative utility roughly equal to that which the criminal inflicted on his victim. This is what punishment, on his view, should attempt to bring about. But pressed for an account of the rationale of this behavior, the retributionist characteristically has little to offer. Either he produces an intuitionist response of some sort, saying that lex talionis is a basic principle of human nature or some such thing; or he produces reasons which amount to shifting over to the deterrence/protection theory.
The difference between retribution and deterrence as theories of punishment can hardly be a difference about the basic purpose of having the system at all. That the purpose of having a punishment system in general is to protect the public is, in fact, too obvious to be a fit subject of discussion, and defenders of retribution do not, as they cannot, deny it. The thought that visiting pain upon people who have visited pain upon others is a kind of interesting entertainment, a charming spectacle, or a source of existentialist drama, and in one of those ways "valuable in and of itself", is abhorrent to any retributionist. The question for retributionism has to be what the point of visiting this pain upon criminals might be, insofar as this pain is inflicted independently of what he agrees to be the point of having the criminal law system at all. And this, as I have suggested above, is really not easy to answer. It may indeed, and presumably often does, make the victims of criminal activity feel better. But it would be difficult for a retributionist to admit that this was the justification of retribution.
The Deterrence/Protection Theory
There is a great deal of confusion about the deterrence/protection view. The deterrence/protection theory has it that punishment is part of a broader social system whose purpose is to minimize crime; or rather, and much more precisely, to minimize the social costs of criminal behavior. Were there no such costs, there would be nothing to deter and nothing to exact retribution for. But, as the restitutionist will point out, if the costs were completely compensated, there would again be no obvious need for either deterrence or retribution.
This minimization of social costs has two aspects to it - not, as seems to be all but universally misunderstood, just one. No sane theory could hold that any procedure whatsoever would be completely justified if it could be shown to be reasonable to expect that it would reduce the overall probability of criminal behavior. What matters is costs, and while criminal behavior is a prominent source of such costs, it is obviously not the only one. Another obvious and major source of costs arises from the enforcement of the law, and the infliction of punishment itself. When punishments strike us as "excessive", the sense is that we lose more than we gain by reacting to the particular crimes thus punished in the particular way that that punishment constitutes. All dealings with criminal behavior are to at least some degree costly, and it is obvious that the cost may be too high. When it is, a theory of punishment proposing to justify punishment by virtue of its expected reduction in criminal behavior must, in consistency, call for a reduction in the noncriminal activities that entail those excessive costs.
Now, the punishment system is one particular way of attempting to control criminal behavior. It is a very specialized way in fact, and cannot be appropriately employed in many cases of what we may term broadly criminal conduct, such as that in which the criminal activities are due to insanity. A punishment system, in fact, is an exercise in the rational control of behavior. Recognizing the facts of prisoner's dilemma, we propose to prevent the criminal conduct by altering the values in the game-theoretic situation facing him: we attempt to attach disutilities to the outcomes in what would otherwise be the single-defect boxes by punishing the agent sufficiently to make the crime in question unattractive to him.
The proposal to do this generates further perplexities, to be sure. Nozick observes that "'the penalty for a crime should be the minimal one necessary to deter commission of it' provides no guidance until we're told how much commission of it is to be deterred. If all commission is to be deterred, so that the crime is eliminated, the pnalty will be set unacceptably high. If only one instance of the crime is to be deterred, so that there is merely less of the crime than there would be with no penalty at all, the penalty will be unacceptably low .. Where in between is the goal and penalty to be set?"12 Plainly at a minimum, it must just more than offset the gain from the proposed crime. Determination of the maximum would be set by several considerations, a main one being the concern that we not induce people to ignore the difference between lesser and greater crimes, and another the increase in risk for all when high penalties are used, due to the probability of convicting the innocent. Whether this completely answers the criticism, however, can't be determined here.
What matters is that this procedure absolutely presupposes capability of rational behavior on the part of the criminal. Nor is that all. It also absolutely presupposes that the penalties in question be must, in order for the system to function as intended, publicly attached to the acts in question. The would-be criminal, A, cannot be deterred by the threat of punishment P for crime C unless A knows ahead of time that C will get him P. A further point. C is only one crime among many others. Being concerned with crime because we are concerned with the disutility it brings, we must therefore be concerned to deter criminal activity in proportion to its expected disvalue to us. We must therefore attach greater penalties to greater crimes, since otherwise the criminal's motivation to refrain from lesser crimes will only be equal to, or perhaps greater than, his motivation to refrain from greater ones. But by definition, we are more interested in the nonperformance of greater ones than lesser ones, other things being equal.
It has not been sufficiently noticed that the result of this approach to crime and punishment is that we must attempt to bring it about that (a) nonrational persons are not to be punished, but require a different kind of response ("treatment") - to assimilate punishment to treatment has to be self-defeating; (b) the punishment must be proportionate to the crime; and (c) all and only guilty persons should be punished (or if not outrightly punished, at least apprehended, arraigned, and warned, as with a lighter punishment or suspended sentence for the first offense).
Why (c)? If we ask, what is the point of punishing any particular criminal, A, within the framework of deterrence/protection, the answer has to be twofold: (1) it renders A's repetition of the crime impossible during the period of punishment (if, as typically, it is by incarceration); (2) it hopefully decreases the probability of A's repetition when his punishment is concluded, by graphically bringing home to him what he's in for if he does repeat; and (3) it adds evidence, for the benefit of prospective criminals, to the hypothesis that crime does not pay, i.e. that if they commit C, then there is a sufficient probability of P, which by hypothesis is sufficient so that if that probability were 1.0 it would deter the rational prospective criminal from committing the crime.
The amount of misunderstanding generated on this last point in the philosophical profession is truly depressing. Indeed, the standard, text-book objection to the deterrence/protection system, found in virtually every discussion of this theory in the literature, is that it would justify punishment of the innocent, namely in those cases where punishing person B would bring it about that less crime is committed by persons A who take the punishment of B as evidence that they too will be punished. The problem here is simple: the objction depends absolutely on misperception. And if B is innocent, then there are two obvious problems: first, the point of the system is to avoid costs on law-abiding persons. (We can say, simply, to avoid costs on persons, but it is part of the logic of the deterrence-protection system that once a person has inflicted such a cost on someone else, that makes him eligible for having costs inflicted on him. The net effect is, therefore, that the point of the system is to avoid costs on law-abiding persons.) But if people are going to be punished whether or not they are guilty, why should they bother to abide by the law? To the rational person, law-abidingness if not a good in itself. It is a means, to the general end of living a better life. That B, in this case, has been done a signal injustice is entailed by the framing presupposition of a deterrance system.
And second: given that B is innocent, it follows that someone else, call him A, has in fact done the crime and that A, far from being deterred, has now been given a new incentive to continue criminal activity, since the public's action in willingly punishing innocent B despite the fact of his innocence shows A that the system doesn't work - that he, A, can commit crimes with impunity. And thus, of course, the public has not been protected - which was the whole point of the punishment system according to this theory. Punishing the innocent, and not punishing the guilty, are by definition the two ways in which a deterrence-protection-based punishment system fails.
Another view, so different as to amount to a different idea altogether about how to respond to crime, proposes that we simply junk the idea of punishment, as such. Crime, after all, consists in inflicting disutilies on someone or other. From the point of view of that person (the "victim"), this suggests a quite especially appropriate mode of response: make the criminal compensate the victim. How much? The property theory supplies the relevant basis for an answer. The criminal, C, has taken something that belongs to the victim, V, and this had a certain value, to V. Thus there is a measure of cost: the difference between the value of V's life to V had things gone on as usual and its value, reduced by the criminal act, given the occurrence of the criminal act, x. So the criminal owes the victim enough restitution, R, to restore V's life to the level it would have otherwise enjoyed.13
In simple cases, the effect is easy enough to determine. Suppose that C has deprived V of some material good, M. Obviously C owes V the return of M. This component of the restitution, then, we may call Rm. In the process of identifying C, V incurs various costs of apprehension and detection - paying detectives and lawyers, for instance. C, of course, has caused these costs as well by his criminal act, and so these too must be added to his "bill": this component is Ra. And so too must V's inability to enjoy M during the period before it is restored to him. It too has an estimable cost, compensation for lose use-time of the material good M: Ru. The total bill, then, is Ra + Rm + Ru, = R.
The idealized level of full compensation, as it is called, in the uonlikely event that it could always be met, would seem to have the fascinating feature that if it could be perfectly administered, it would render criminal activity a non-problem. In the first place, since it is all but impossible that R would be exceeded by the criminal's gain in performing the act x in the first place, the full-compensation system would probably also function as a full-deterrence system. It is unlikely that there would be any criminal activity. And in the second place, the occurrence of crime would become literally a matter of indifference to the victim, since by hypothesis, full compensation would leave the victim precisely as well off as if the crime had never occurred!
Some defenders of retribution mistakenly assimilate it to compensation. But this is an unlikely assimilation as a general hypothesis, for the psychic satisfaction to me of seeing the man who crashed my new
Lotus sitting behind bars for a year is unlikely to be equal to the satisfactions of driving and admiring it during the period of disruption. So long as the victim is left otherwise uncompensated, indeed, it would seem that she has a justifiable complaint against any punishment system. For the benefits of punishment from her point of view are generally likely to be next-to-nil. She is still without whatever it was that the criminal took from her, and what she is offered in exchange is not only virtually irrelevant but also, when you think of it, of such a kind as to reflect adversely on her taste: do we really want to be the kind of people who derive as much satisfaction from the sight of others being punished as we would have from the use and enjoyment of whatever he has taken from us? But that is what a punishment system encourages.
Obviously the problem is that there will be many criminal acts which it is impossible to compensate for. The class instance is murder, where compensation to the victim herself is out of the question, and compoensation to the others concerned likely to be problematic in the extreme. (What parent will be equally happy with several million dollars as they would have been with their murdered son or daughter?) or those which entail loss of bodily or mental powers (same question, with the examples of total loss of memory, or of both legs, or ....). And there is the further point that in the more important cases, compensation will be impossible because the criminal simply won't command the necessary resources. Life enslavement to the victim or her family, in the form of, say, 80% of his future income for life, might be considered. And here, interestingly enough, we have an example that will likely strike the upholder of the more usual punishment system as a case of gross injustice. (A smashes your Lamborghini, or he burns up your Rembrandt; the interest on the equivalent monmetary value of which would exceed A's maximum earnings in any given year.) Nevertheless, it is hard to deny that the deterrent value of required compensation, were the requirement highly likely to be fulfilled, would probably be quite enormous.
The fact that compensation would often not be forthcoming either due to inability to catch the offender or inability to pay if he is caught would motivate us to take out "crime insurance", which in turn would motivate the insurance company to catch such criminals as it profitably could. Criminals would have plenty to fear from these highly motivated companies, who of course would acquire from their clients the right to such compensation as they could exact, at least up to the level of full restitution. It would be interesting to know whether the net effect would be more satisfactory than the current system, but when you consider the all but total failure of the punishment system actually employed in, say, the USA and Canada, it is difficult to believe that it wouldn't be a major improvement.14
Everyone agrees that we have very far to go in the way of improving our system of responding to crime. It is a sobering thought that the response of getting rid of the one the most spectularly cost-ineffective systems in the history of mankind short of war is also perhaps even less likely to be seriously considered than is abolition of war.
2. Thomas Hobbes Leviathan (London, 1651), ch. 18
3. James Buchanan, The Limits of Liberty (Chicago; University of Chicago Press, 1975), p. 154
4. Buchanan, p. 155
5. Buchanan, p. 158
6. John Finnis, Natural Law and Natural Rights (Oxford, Clarendon Press, 1980)
7. Robert Nozick, Anarchy, State and Utopia (NY: Basic Books, 1974), pp. 118-119. The argument in fact occupies the opening five chapters and is exceedingly intricate.
8. Cf. the careful detective work on this argument in Robert Holmes' "Nozick on Anarchism", in Jeffrey Paul, Reading Nozick (Totawa, N.J.: Rowman and Littlefield, 1981), pp. 57-67.
9. Henry Shue advanced a criticism in "The Bogus Distinction- "Negative" and "Positive" Rights" (in Norman E. Bowie, Making Ethical Decisions (NY: McGraw-Hill, 1985), pp. 223-231 which is relevant here. I reject, of course, the thesis that the distinction is bogus. But it is essential to bear in mind that people do not have a fundamental right to protection any more than to any other service people could supply. There has to be an argument why the State should do no more if it does anything at all.
10. David Suits speculates interestingly on this in "On Locke's Argument for Government", Journal of Libertarian Studies,, Vol. 1, No. 3, 1977, pp. 195-203.
11. James Q. Wilson, [title?] Atlantic Magazine, July 1985. [Check this?]
12. Nozick, p. 61 13. Nozick, Ch. 4, esp. pp. 78-84. 14. An important thinker along these lines is Randy Barnett. See his "Restitution - A New Paradigm of Criminal Justice", Ethics, Vol. 87, No. 4, July 1977, pp 279-301.