The Rule of Law

The present controversy over the nomination of Sonia Sotomayor to the Supreme Court makes this a good time to discuss the rule of law. While I certainly have no sympathy for identity politics, I find the particular lines drawn here most peculiar. The Republicans uphold the rule of law, by which they seem to mean positive law; the democrats oppose it. This is exemplary, I believe, of an odd correlation throughout American politics.

A legal positivist, for example, ought to support the rule of law so defined. As a legal positivist, the law is not answerable to any higher standard, and so any deviation from the law, rigorously applied, can only be arbitrary. Furthermore, legal positivists tend to be communitarians, believing that the individual reaches fulfillment in the community. Correspondingly, such people should hold that the individual agents of the government reach fulfillment when acting as part of the whole, bound together by common principle: the positive law. However, this correlation does not obtain: as evidenced by the recent Supreme Court nomination, our resident population of communitarian legal positivists seems rather hostile to the rule of law in favor of identity and personality politics.

Contrapositively, one would expect those who accept natural law to oppose the rule of positive law. If the law is answerable to a higher standard, then the law should not rule except insofar as it conforms to that standard. Yet libertarians in this country seem to hope to use the law to curb the government. If the law is unjust, they appeal to the Constitution. And if the Constitution is unjust? Few libertarians have a graceful option in that circumstance. It is said that Judge Learned Hand once told Justice Holmes to “Do justice, sir, do justice”, to which Holmes replied “That is not my job. It is my job to apply the law.” And many of those who profess to support limited government support Holmes’ rejoinder. Robert Bork is a poor example, being himself a legal positivist in strange alliance with those who at least professed to support natural law, but the sentiment is widespread: Clarence Thomas holds that it is his duty to uphold the human law, whatever may be just; noted supporters of limited government Thomas Sowell and Walter Williams concur.

This definition of the rule of law does not even allow for any sensible interpretation of its common expansion, “the rule of law, not of men”, for all positive law is, by definition, made by men. Perhaps there is some benefit in having all legal decisions reference one standard, but so long as that standard is positive, the rule is still of men, merely several steps removed.

Therefore, it seems to me that the identity of the law in question must be altered from the positive law to the natural law. This law is discovered, not made, and thus its rule may be properly distinguished from that of men. It makes sense for someone who believes in the moral supremacy of natural law to support its legal supremacy as well, while it also makes sense for someone who rejects natural law to oppose its rule. Thus, interpreting the rule of law as referring to natural and not positive law explains its usage and affiliations.

Given that, however, the conclusions reached from support of the rule of law demand reconsideration. Those who support the rule of law tend to strongly oppose judicial activism. However, leaving aside activism arising from corruption or whim, I can find no fault with the judge who upholds the natural law above all human orders. Can it be consonant with the rule of law to transgress the true law on account of human fictions that aspire vainly to the title, for, as so often repeated, an unjust law is no law at all? Is not that such rule of men, and not of law? However useful human constructions may be in following the natural law, one should never bind oneself to what is not fixed. One should not bind oneself to the statutory laws, for they might be altered, and thereby made unjust. One should not bind oneself to the Constitution, for it might be amended, and thereby brought into conflict with the natural law (not to mention its myriad conflicts as it stands). One should only bind oneself to what is immutable by all human devices, the natural law.

Thus, I fail to see why Sotomayor ought to be disqualified from the Supreme Court merely because she wishes to uphold a law other than human law. The critical question, rather, should be whether she upholds the true natural law, for any other law is just as much a human invention as the laws of the US Government. However, the fact that the oath of office requires pledging allegiance to the Constitution, and not the natural law, raises difficulties perhaps insurmountable. One cannot take an oath with reservation (although signing laws with reservations seems to be working well for our presidents), so I cannot see how anyone who believes in the natural law could take the oath of office in good conscience. However, this is its own dilemma, and no fault of Sotomayor: those who are ideologically qualified to sit on the Supreme Court cannot take the oath of office in good conscience; those who are not are obviously unacceptable.

Justice without Aggression

I believe that I may finally be in a position to outline the first steps in a positive theory of agovernmental order. I here take it as granted that force in defense of property is just, and necessary to the preservation of society. This is to me a quite open question, and Tolstoy has his appeal; however, I shall here assume the typical resolution. Thus, my thesis is that the appropriate exercise of force against aggression does not itself require aggression.¹

I work, of course, within my own theory of natural rights: that the sole enforceable right is the right of property in one’s self, possessions, and land, all other supposed rights being the exercise of control over one’s property in certain ways; that force in defense of one’s property is just, and therefore not aggressive; that changes in physical possession do not change legal title, and thus that the seeking of restitution is a continuation of defensive action on behalf of that title; and that the right to defense of property inheres originally to the individual. Thus, the question is whether institutions wholly compatible with this account of justice can effectively regulate society.

From this account of rights, it should be clear what can and cannot be done to maintain order.² One can defend one’s own property, including using force to reclaim it from those who have taken it, or claiming restitution from those who have destroyed it.³ Furthermore, one may claim in restitution one’s expenses, since they are a loss imposed by the crime. One may not, however, act in preemption of a merely probabilistic harm. Just as we are to hold a defendant innocent until proven guilty beyond a shadow of a doubt, so a shadow of doubt about the immanence of a crime makes self-defense aggression. From this it naturally follows that preventing another from defending his property is aggression. Furthermore, one may not harm the property of another in defense of one’s own, including forcing another to aid one’s defense (which neatly answers the media resolution; all subpoenas are unjust).

This means that no government, as commonly conceived, can satisfy my burden. Inherent to government are, it seems to me, two things: the establishment of a coercive monopoly on force within a jurisdiction, and the coercive collection of revenues. Interference with another’s defense of his property (which extends to collection of restitution) and taxation of any kind to support the institutions of law are aggression, unjustifiable on any grounds (see https://ambulatorysesquipedalian.wordpress.com/2009/04/04/indirect-proof-and-necessary-evils/ on the nonexistence of necessary evils).

So what institutions might justly preserve order? An individual who thought his own resources insufficient for the restoration of his property could hire another who specializes in the task to do so for him, following the standard procedure of delegating rights to an agent. This cost, of course, would be the liability of the criminal (although he is bound to pay only necessary, not actual, costs). But what if the criminal resists? Would such private enforcement not lead to constant violence?

Restitution without war requires some form of nonviolent arbitration. For such arbitration to be effective, both parties must be willing to abide by its decision, for or against them. In our society, this is done by brute force: resist the government, and you tend to get the worst end of it. In a society without a monopoly on force, no one would have the power to compel the submission of any other by direct force. So how could arbitration be made binding? This question, fortunately, was very well answered by the polyarchic institutions of pre-Feudal Europe: outlawry. Rather than attempt to overwhelm a resistor of the arbitrated resolution, publically proclaim his guilt. One who has violated the duties of the law has no claim on its protection, and others would be hesitant to deal with a noncompliant criminal. In a society in which the government does not compel people to interact with others, such ostracism would be perhaps the most severe punishment of all possible. Of course, forcible restitution is still just; however, it may not always be possible, and there outlawry has its role.

The efficacy of outlawry depends, of course, on the public acceptance of the ruling. In cases of commercial contracts, the standards are fairly clear, and thus I think such public enforcement quite probable: who would wish to do business with someone who reneged on a contract and then defied justice? For a business owner, the loss of business from a boycott of other companies would probably suffice as a deterrent (and did, in the non-coercive merchant courts of the middle ages). But what of criminal law, where agreement on crimes and punishments is scarce? To analyze this problem, I think that we must alter our conception of law. In our statist age, law is a production of the state, an authoritative pronouncement of what is to be done. Clearly, no such law has a place in a society with no state. The production of law is fundamentally different in a free society: there is no lawgiver, but a law-finder, seeking to identify the relevant natural legal principle and then to justify it to others. If the lawgiver fails in this respect, the law fails to be enacted, for the law in such a society rests upon its popular acceptance for its enforcement. This was the nature of the common law: people today, I think, tend to analyze the common law in terms of our own institutions, with the judges replacing the legislature in creating a binding set of created regulations. In its prime, however, before the common law became subverted by the positive law of the state, it was not a positive law at all, but rather an application of the natural law to the case at hand. Precedent was not a binding regulation, but a guide helping the judge to find the proper application. Correspondingly, in the free society that I imagine the judges do not craft a code of law and force it upon the parties to the case; they attempt to apply the universally justifiable natural law, a law enforced not by violence, but by the conscience of all. This necessarily limits the scope of the law, but not beyond measure. Did the law not overlegislate, I suspect that disagreements would be far rarer.

But what of criminals who cannot pay their liabilities? They would live in perpetual debt, ever bound for all they owned to their creditors. Bankruptcy has no place in a free society. But should they not have borne that in their considerations of whether to commit the crime? Some, however, object in the opposite direction, that restitutive law is unfair to the victims, for they are not guaranteed restitution. To this, first I must question how this can justify the punitive sentences advocated by its advancers: if it is unjust to the victim to be payed only in correspondence to the criminal’s ability to pay, is it any more just to deny the victim all satisfaction save the pleasure he derives from the sufferings of his offender? Are we such a race of sadists that we enjoy the sufferings of others more than the albeit partial satisfaction of our own losses? But I do not think that such satisfaction need be partial. We have a very good microcosm of the form of law I discuss here in our present institutions regarding automobile accidents. There, a complex set of insurances and liabilities protect the victim against unrecompensed loss and the offender against payment beyond his means. Similarly, I believe that a system of insurance against loss and surety for liabilities would serve all necessary purposes. One could object that this will destroy the incentives against crime, if criminals gain the proceeds of their success while the burdens of their failures fall largely on their liability insurance. I must first note that for this objection to hold, automobile liability insurance and malpractice insurance are destructive of proper incentives and must be discouraged. But the Anglo-Saxons had an even better answer: instead of contracting with some impersonal insurance agency, their insurance was a group of twelve who pledged surety for each other’s liabilities. One would not enter such a contract unless one trusted the honesty of the others, and none but a monster (who would probably not be accepted into such a group anyway) would willfully exploit his friends in this manner. The Anglo-Saxons also solved the difficulty of ensuring that all had such surety by refusing to interact with those who lacked it, just as today the government (which we may take as here acting in its capacity as owner of the roads, rather than as sovereign) requires those who use the roads to have liability insurance.

And what of the poor? I hope that after this presentation that question naturally vanishes, but I fear otherwise. The poor have no worries in such a society. Victims may claim compensation for the costs of enforcement, and so one cannot be too poor to pursue justice. Favorable resolution is not certain, it is true; but if one could not bear that risk he could sell his right to the restitution to a firm, who would pursue the case then on their own behalf, guaranteeing the original victim the expected value of the award. The courts would have no incentive to rule against the poor, for the enforcement of a verdict depends on its legitimation, and so only in a society in which nearly all members of which systematically discriminate against the poor would such a biased verdict triumph. For the same reason, bribery is unlikely to be able to pervert justice; the decision is of no account in itself, but only its popular acceptance. And, lest I legitimize the nirvana fallacy, I must ask what comfort the poor have in our present society. The poor are at present wholly reliant upon the government condescending to pursue their case, which the government has shown all willingness to not do at its own pleasure. Once in court, the poor are subject to a legal code produced by a legislature highly responsive to the lobbies and donations of the wealthy. Furthermore, it is in the state that bribery comes into its own, for while in a free society the people must ratify the decision of the court, and the people are beyond bribery (save by an organization as widespread as the government), under the state the decision of the judge is itself decisive, and so bribery is of binding influence. If anything, it is not the poor but the rich who need fear the loss of the state, for it is the rich who wield disproportionate influence over the government, an influence destroyed when there is no government to subvert. The government is not an equalizer, but a lever: it magnifies whatever disparity already exists, by allowing those with considerable resources to control the disposition of resources taken from others.

Thus, I find no reason to expect that society cannot exist without aggression. Replace a coercive monopoly on force with its free use where just and crime will be discouraged, not encouraged. Replace the creators of the law with its discoverers; one would never dream of having a legislature legislate the laws of physics; why, then, have a legislature legislate the laws of morality? Replace the brute force of the law with the ostracization of the people, of no less danger to the criminal but a terror, not an aid, to the tyrant. This could not, it is true, do all that can the state. This society will never be hammered into the mold of the social engineer. It will never be conscripted into the war of the conqueror. It will never bow before the messianic tyrant. These failures I cannot avoid, for they are incompatible with freedom. But to those who think these failures virtues I commend justice without compromise.

1: I discuss coercion in an earlier \link{https://ambulatorysesquipedalian.wordpress.com/2009/03/09/freedom-and-coercion/}{post}. Most straightforwardly, force is an encouragement of another by negative incentives, and aggression is the unjust use of force.

2: By order I do not, of course, mean that society should be thought an organism that must be directed toward some unified end. Rather, an orderly society (as opposed to an organized society) is one in which people can pursue their own ends in consonance with the rights of others.

3: For the act of destruction cannot destroy the title to the property, since the aggressor has no power to dissolve the title. He must dissolve some title, however, since his action decreases the quantity of property and titles and property must remain in correspondence. It therefore follows that he must dissolve the title to his own property to the extent that he destroyed the property of the victim, which property then falls under the title of the victim. Restitution is not punishment, but defense.

Social Contract Theories of the State’s Justification

I have lately been arguing primarily over the expediency of the state, which is not, I think, where the decision among governmental systems is best made. Precise determination of the actual results of a system of governance is impossible, relying as it does on indeterminate human action, and even approximate prediction is rather difficult. By comparison, ethical determination is determinate, and easier. Consequently, I believe that we ought to compare systems first on account of their ethical rectitude.1

Here I work from the assumption that individuals have a right to their possessions and body, which implies that they also have a right to seek recompense for violations of their rights unless they alienate that right to another. Justifications of the state that deny this assumption I shall treat elsewhere.

The state I here define as an institution that maintains a coercive monopoly of compensatory justice (as opposed to a de facto monopoly arising from the unlikely event that all people turn to the same agency for protection). While many entities that meet this definition would not be considered just governments, I doubt that any would consider a state any institution that does not prohibit competition. In consequence of this definition being underspecified, I accept the burden of proving that no contractual theory can justify any states so defined. I might note in passing that nearly all states tax their citizens and most aggress against rights in many other ways; however, as social contract theory cannot justify any violation of rights, I shall consider only the minimal definition above.

In order to justify the state’s coercive monopoly in light of the above assumption, one must explain how the right transfers from the individual to the state. The recognized method of alienation of a right to another in free society is the contract; thus, all theories that I have encountered in defense of the state within a negative rights framework posit some sort of contract between the individual and the state whereby the individual alienates his right to compensatory justice to the state (the one seeming exception, IV below, does not actually accept individual rights, but as it calls itself a social contract theory and seems popular among American traditionalists who claim to recognize rights, I shall address it here).2 I shall thus consider the four theories I have encountered; if I have overlooked any that is differentiable from those following in more than name, please bring it to my attention.

I. Explicit social contract

Explicit social contract theory posits that documents such as the US Constitution constitute a contract between the people and the state, and thus that states are by contract the exclusive agents of the citizens. While such an explicit contract would justify a state, this theory cannot justify extant states for three reasons. The first is that many states generally considered legitimate have no such document (such as that of the United Kingdom). Thus, at best this theory could justify only a subset of even democratic states. The second problem is that no contract binds the descendents of the signatories.3 Consequently, for the Constitution to be binding on those not alive at its initial adoption by explicit social contract theory, they would need to somehow explicitly adopt it. Even if one believes that those who do not object to it accept it by implication (“silence is consent”), explicit social contract theory must hold that if I repudiate the state as my agent, my alienation of my rights to it ceases. Thirdly, explicit social contract theory fails to account for the fact that no Constitution has, to my knowledge, been adopted unanimously. Therefore, were the state justified by an explicit contract, it would not bind those who did not approve of its initial ratification; the state’s prohibition of their pursuit of compensatory justice by other means is unjust.

II. Majoritarian social contract

Majoritarian social contract theory attempts to solve this third problem by positing that the majority in a nation have a right to bind the minority. I would first note that this is incompatible with any theory of individual rights, except if one arbitrarily exempts certain rights from the domain of the majoritarian contract (thus positing a distinction between societal rights, at the whim of the majority, and personal rights): if the majority may justly violate the rights of the minority, can the minority be said to have any rights at all? Also, this is not actually a theory of contract, for where else is a contract binding on those not signatories? If two in a group of three decide to despoil the third, is this not robbery? Is it not also if the majority of those in a neighborhood do the same? Why, then, does a different rule apply to the nation? How does the decision of some part of the population to pursue justice in a certain manner compel me to do the same? The justification of democratic elements in a state rests on the legitimacy of the state as a whole; founding the legitimacy of the state on majoritarianism then begs the question unless one posits some principle that says that “the majority of those forming a ‘nation’, but not those forming a neighborhood, nor those in only incidental relationship, have a right to bind the minority to do the bidding of the majority.” And what proof will be raised of this notion, aside from its necessity in justifying the state? In ethical determinations, let us accept only self-evident principles and those derivable therefrom; I hardly see how majoritarianism is self-evident. Two men may no more be justly despoiled by the two than by the one; why should the principle change when the numbers rise to the millions? Finally, majoritarian social contract theory cannot justify any deviations from democracy, thus invalidating the US Constitution (for although it binds individuals, its ratification did not grant votes to the states in proportion to population), and it still cannot explain how those two centuries dead bind me today.

III. Implicit social contract

Implicit social contract theory, on the other hand, attempts to explain the first two problems with explicit social contract theory, the occasional lack of explicit founding documents and the absence of intergenerational binding, by positing that by residing in a nation one consents to its government. This, however, requires a belief that I find difficult to grant. One may make continuance upon his property subject to any conditions he might choose, but his neighbor has no right to do the same. If one should say to his neighbor that if that neighbor does not pay a certain sum per month he would extract it by force, unless the neighbor moves away, it would be robbery; the fact that the neighbor “consents” to the force by refusing to move makes no difference. Therefore, if the government should tell me that my continuance within its borders is conditional on my alienating my right to pursue justice on my own account to it, it is ultimately asserting that it, not I, holds the allodial title to my land, and I hold it as a tenant at its pleasure. How, I must ask, did it acquire this title? Not originally; one appropriates title to land by mixing it with one’s labour. When did the state stir itself to help the settlers who tamed the land? When they left, it forced them to purchase the land, to which it had contributed nothing; when they produced, it burdened them with taxes, taking from them what they earned without its aid; when they prospered, it burdened them with its regulatory fist, lest it be thought that prosperity outside the control of the state is possible. By what right, then, does the state claim the land? Perhaps it wishes to claim that it purchased most of the land from other nations. And when did those other countries acquire the ultimate right to land developed by others? How do the petty transactions of the tyrants place obligations upon me? Perhaps it wishes to claim that the allodial title was transferred at the ratification of the Constitution. But where does the Constitution say that those who consent to it sacrifice thereby the true ownership of their property? If that is the case, then our government is founded upon sheer fraud and theft. And what of those nations that have no defined beginning, no constitution? How do the actions of the warlords of centuries past bind the English citizen of today?4 Furthermore, I again raise the point that not all consented to the Constitution. How does one’s rejection of a contract bind one to its terms? One could, of course, add to implicit social contract theory the argument of majoritarian theory, that the majority, in their consent, rightfully despoiled the objecting minority. But need I say anything in reply? The government claims to be under the laws. What law permits the two to despoil the one? Furthermore, all varieties of implicit social contract prove too much. If my residence in the US justifies its government’s power over me, then surely residence in a tyranny justifies the actions of its government. Who has so little heart as to tell the starving, oppressed peasant that he invites his hardship upon himself by his continued residence? But one might say that his master compels his residence, while our state does not. But where can I go, to be free of the state? Everywhere I turn the oligarchs have claimed sovereignty. What refuge offers me an actual alternative? Choice implies no consent if all the options are unjust. Can the thief justly claim that because his victim freely chose to part with his money rather than his life he parted with his money voluntarily, and thus that the thief’s action was not unjust?

IV. Nonconsensual social contract

This is not really a theory of social contract, for a contract achieves nothing without consent. Glossing utilitarianism with the terminology of freedom does not justify the transaction. However, I shall address this theory here, in accordance with its self-proclaimed identification. The theory is that the state is a necessary evil, for rights will be violated whatever happens; a state that prevents violations of rights greater than those that it causes is justified.5 It ought to immediately strike the reader that, while phrased in the language of rights, this theory is in fact about no such thing. If I have a right to something it means not that other people must promote it (the liberal’s error), but respect it. A system of negative rights makes me responsible for the harm one does to others, but not done by others. Therefore, if one wrongs one man to help another, the wrongs for which he is responsible increase, while the reduction is in wrongs for which he is not responsible. For this theory to work, it must deny individual rights, and instead proclaim broad societal goals for which all are responsible. It then becomes nonsensical for anyone to claim his individual right to the proceeds of his labor, or to his life itself, for all is subsumed by the societal interest. But let me leave aside that argument, for I neither wish nor need to rest on the assumption of individual rights here. This justification rests on a calculation impossible in both practice and theory, for at what ratio may the state exchange life for property, or vice versa? How much may it steal from its citizens, if it should show a life saved at the end? How many may it kill to prevent a theft? Individuals may make decisions were no exchange ratio exists, for they may subjectively weigh two states of the world and choose the one which they prefer, but the state’s justification must be objective, not subjective, and thus he who wishes to justify the state on such utilitarian grounds must identify and justify his equations. Furthermore, since no such equations have been proposed, how can we claim any state as legitimate by this theory? It serves at best as a hypothetical theory that might justify some future state, but which can do nothing at present. Furthermore, theft by the US government exceeds theft by its citizens by a ratio of 150:1. Even if the demise of the government increased private theft one hundredfold, theft would diminish by one third! The expediency of the present US government is far from obvious. Finally, why is this provision, like that of majoritarianism, restricted to the state? Why is the thief who steals to feed the starving culpable, but the state not? Why do the actions of millions follow different rules than those of individuals? Furthermore, let us note that the state prohibits other means of obtaining justice. When has a monopoly ever been found to provide more of its product, and of a better quality? Yet the state establishes such a monopoly. Can it be claimed that the establishment of a monopoly on the protection of rights better protects them?

V. Generalization

I may generalize my observations: If individuals have a right to pursue justice on their own behalf, then that right, by its very definition, be taken by another without the consent of the individual. Thus, a social contract theory is only tenable insofar as it is also a private contract theory, in which each individual chooses for himself whether and to whom he may alienate his rights.6 Even if all men at some time decided to alienate their rights to a certain agency, creating a de facto monopoly, they would not be justified in preventing the creation of a new agency, or in forcing a newcomer to join the old.7 Thus, by simply positing that a contract that alienates one’s right to pursue compensatory justice to some agency must follow the same standards as any other contract, we arrive at anarcho-capitalism, with free choice of security agencies. I am a contractarian, and for that reason I find myself compelled to by an anarchist.

1 I would then apply the consistency principle and say that what is right cannot be inexpedient, although acceptance of this principle is unnecessary for acceptance of the primacy of ethics. More specifically, the consistency principle tells us that the practical and ethical determinations are both solutions to the same problem, and that, as an intuitive rule of thought, we should use the simplest approach (exempting some pedantic purpose). Actually, however, my argument is even stronger for someone who accepts the primacy of ethics but rejects the consistency principle, because then the solutions need not align and a determination of expediency is neither necessary nor sufficient (nor even relevant) for determining the proper course of action.

2 Strictly speaking, the contract would not be between the individual and the state because the state is formed by the contract, and therefore its existence is subsequent to the contract and it cannot be a signatory to it (unless one wishes to posit a powerless state predecessing the contract and then being granted its powers by the contract, but that seems counterintuitive). Thus, strictly, the contract should be among the citizens alone. However, few of these theories make sense viewed that way, for while a contract with one party being a group not all of whom consent to the contract may be plausible to some, I cannot see how a valid contract to which one signatory does not assent is plausible in the least.

3 Note that although debts may be claimed from estates, they may not be claimed from the possessions of the heirs.

4 I must here note that feudalism is legitimate (those who hold any true social contract theory cannot consistently claim any form of government lawfully contracted to be unjust); however, the feudal owners of the land in times past acquired the land over which they claimed dominion by theft, and thus they were not true owners of the property, and their nominal feudalism was invalid.

5 Alternatively, one may add the qualification that the government must minimize violations of rights to the extent possible without compromising its protections of rights, but it makes little difference. Can any right justify the slightest wrong?

6 Therein lies the distinction between the inability of choice among nations to justify the state and the ability of choice among protection agencies to justify the market: only in the latter case is there an option of abstention. No man has a right to purchase any product, but all men have a right to refrain.

7 Some might object that in this case the agency would probably not permit the split. I must agree (although I think the presence of such a de facto monopoly agency even less probable). However, even if this does occur, then we have again a coercive monopoly over the provision of justice–a state. If the possibility that anarchy would give rise to a state is the strongest argument against anarchy, then surely the certainty of a state would be worse?

Anarchy and National Defense

One of the most pressing difficulties for stateless government would seem to be national defense. While police protection can be well internalized, being primarily a service to individuals, businesses, or neighborhoods, defense against foreign enemies yields non-rival and non-excludable benefits to all, and thus would seemingly encounter a severe public-goods problem. But, in associating national defense with a military, I believe that we may be equivocating. If the nation can be made secure without the need for a military, there is no defense problem with anarchy.

I can see two reasons why one nation might invade another: preemption of threat, and ambition for land or resources. The first reason, preemption,1 need concern us little. Preemption is, by nature, against a threat; a nation that does not threaten others need not fear preemptive action against itself. If a nation has too weak an organized military to defend itself, it cannot have enough to pose a threat to another, and need not fear preemption; if it has a strong military, then concerns about its military weakness are unfounded. Therefore, in no case is defense against preemption a unique concern for an anarchal nation.

Thus, we are left with defense against territorial expansion. In this case, the aggressing nation does so with expectation of benefit; an expected cost greater than the expected benefit would suffice to deter the threat, even if it could not avert suffering if the attack were made.1 Furthermore, even conventional national defense does not prevent harms; consider England during WWII. Thus, all increases in the cost of a successful invasion equally serve national defense.

In considering this, I believe that Machiavelli’s argument from Ch. IV of The Prince is relevant: “[H]e who considers both of these states will recognize great difficulties in seizing the state of the Turk, but, once it is conquered, great ease in holding it…. But it is impossible to hold with such tranquillity states constituted like that of France. Hence arose those frequent rebellions against the Romans in Spain, France, and Greece, owing to the many principalities there were in these states, of which, as long as the memory of them endured, the Romans always held an insecure possession;” Although a decentralized state may not erect such a hard outer defense, and thus may be easier to defeat in pitched battle, it leaves no centralized mechanism with which to seize control of the country. Look at the Vichy government of France during WWII: once the military fell, the country on the whole (neglecting isolated private resistance, which would be if anything greater were occupied nation originally anarchist) served the purposes of the conquerors in subduing the country. If a decentralized nation is difficult to govern, how much more one with no institutions of government, with its people accustomed to freedom?

Iraq, too, presents a good example. Hussein’s regime should be the model of those who look to government for national defense: a centralized state lacking democratic hindrances to its warmaking and with a high military budget.2 Yet each time the United States invaded, the demoralized military of Iraq crumbled. Notably, the last time, when we sought to gain control of the government (rather than mere military defeat), a private resistance arose which we have not yet quelled, despite the support of Iraq’s government and much of the population. How much more problematic would be an invasion of a nation with no legitimacy and no domestic support on the side of the conquerors? Thus, it seems to me that far more effective at deterring invasion than a conventional military would be the assurance that an invader would have to suppress the population man by man, without support from the local state. A privately funded military is, I admit, difficult to conceive; but we must remember that a military is but a scarcely sufficient and wholly unnecessary means of achieving national defense, which could be as well or better achieved by other means under anarchy.

Thus, I think that national defense under anarchy would not consist of multi-billion dollar jets and a vast military-industrial complex, but rather the free ownership of weapons and the reluctance of free men to submit to tyrants. Even a committed minority of the population could make invasion prohibitively costly. Such a defense would be far less costly, with respect to both resources and rights. Gone would be the annual 650 billion dollar drain on our nation’s resources. Gone would be the ever-present excuse for violations of our rights that “wartime necessity” demands them. And, of course, if a group of people thought that an aircraft carrier would be a good thing to have, they would be free to fund one–but with their own money, and not, as at present, their neighbors’.

1 Exactly the same justification as for imprisonment of criminals: imprisonment does not seek to alleviate the original wrong, but seeks to alter the costs considered by the prospective criminal in order that he might not commit the crime. That imprisonment does not prevent the crime from occurring if it does occur need not influence our practical analysis of its effectiveness (although from a consideration of justice, I think that imprisonment and such defense as I describe are wholly incommensurate).

2 National defense being considerably more difficult in a democracy or under Constitutional government, why do not those who raise the objection to anarchy also raise it against limited government as a whole?

Governance without Government: Introduction

In advocating a much smaller role for the government, I have found one of the greatest points of resistance to be an inability to imagine non-government provision of certain services. Interestingly, however, in the vast majority of cases such provision has existed, at some time. Thus, as a research project for myself, and to condense this information for others, I plan to write a series of articles documenting these private provisions of allegedly public goods.

At present, I plan to address the following topics, based primarily on what I can recall having arisen in conversation; if any of my readers have suggestions for additional topics or superior classification, I would greatly appreciate them.

Protection of rights (and not rights):
Security/police protection
Judicial arbitration
Foreign aid
National defense
Civil rights/child labor
Environment

Charity:
Care for the poor
Care for Orphans
Unemployment/disability compensation
Natural disaster
Education

Infrastructure:
Public transportation
Roads
Lighthouses
Standardization

Economy:
Currency
Monopoly

I need hardly say that I do not believe such examples to be logically necessary; while it is true that without assuming the perfectibility of human nature imperfection of results of the present system does not constitute prima facie proof of the possibility of a better system, the absence of a better system in history does not constitute prima facie evidence against it. Nonetheless, I think that these articles may be of help to some who seek practical confirmation of theoretical conclusions.

More on Rational Irrationality

In response to may last post on this subject, Abigail very correctly noted that the consequences of rational irrationality are not unique to this past election, nor recurrent to every, but rather universal, reflective of society turning towards statism.  While I do not believe that this observation invalidates my previous argument (and, in fact, even strengthens it), I believe that the relationship between this general ideological shift and rationality bears closer examination.

For clarity, I would like to introduce two definitions of rationality, one practical and the other intellectual, the distinction between which is key to correctly understanding the seeming paradox of rational irrationality. Practical rationality means “pursuing the course of action with the highest expected utility”. Note that this definition does not imply action from perfect knowledge or perfect decision-making, nor does it ignore rational ignorance (intentionally remaining ignorant because expected costs of acquiring additional information exceed expected benefits from that information), but rather that, for a given set of judgements concerning the conditions of action and the expected effects of possible actions, one chooses the action expected to achieve the most-preferred distribution of future states of nature. Thus, choosing an improper means to an end while believing that they are appropriate is not prima facie irrational, while so choosing while aware of a better means is. On the other hand, intellectual rationality means “holding beliefs consistent both among each other and with their respective grounds”. Thus, to hold contradictory beliefs or to derive a belief inconsistent with its ground (in light of one’s other beliefs) manifests intellectual irrationality.

Most confusion regarding rational irrationality seems to arise from this analogical use of rationality within the term; in the first instance practical rationality is meant; in the second, intellectual. Thus, a literal expansion of “rational irrationality” would be “holding inconsistent beliefs as an appropriate means to an end”.

Such behavior is prevalent in modern society. One of my favorite examples is the “environmentally conscious” celebrity who advocates human extinction. I fail to see how someone can reconcile that belief with his own continued life, unless he holds that his life is temporarily necessary to advance the cause of death. Similarly, one frequently finds multi-millionaire celebrities who give little of their own great incomes to the poor advocating income redistribution to the point of equalitarianism, or wealthy private businessmen supporting socialism.1 If one desires socialism, is not the first step to relinquish one’s own property to the state? In each of these cases, the individual is advocating government enforcement of a certain path of behavior, while deliberately refusing to follow that path themselves. It could be argued that these behaviors manifest simple egotism, as the person advocates altruism when others bear the cost and selfishness. But why would an egotist who cares nothing for the welfare of others, or the environment, or socialism, go to any trouble to advocate them publically? And would not someone who sincerely believed such causes suffer terribly from the guilt of fortune, life, or private ownership? It seems to me that these people are sincere both in their public exhortation and private action. But then, as income redistribution and socialism are improper means to nearly all ends, why should so many who desire a certain end choose the same improper means? Thus, we must somehow explain their systematically inconsistent and mistaken beliefs. The most plausible solution I have yet encountered is that such people maintain their (intellectual) rationality because it is (practically) rational, allowing them to derive the satisfaction of altruism and the wealth of egotism.

I agree that society is being consumed by menacing ideologies, by socialism, by equalitarianism: “A spectre is haunting Europe”: the cult of the state. But this spectre is not simple concern for the poor, the environment, or state control; were that the case, the advocates of the poor would donate to charity, the advocates of human extinction would extinct themselves, and the advocates of socialism would become poor. The latter two cases would be regrettable, certainly, but not one of these actions substantially threatens society. Nor is this spectre simple bad judgement; typically, those who judge poorly quickly discover and correct their error. This spectre is terrifying because it claims the terrible power of the state; lasting because it stems from unquestionable rationality.

Rational irrationality has thus supported a rising tide of devastating ideology. What is to be done? To some, the problem seems insurmountable, for rational irrationality is inherent to the process of elections, of divided responsibility and power, of the state itself. But at the same time, the presentation of rational irrationality presents its own solution. Insofar as it is possible, make each decision powerful by itself or powerless as a whole. More generally, ensure that each decision maker reaps as many of the costs and benefits of his action as possible. Elections fail because voters do not suffer any harm, nor do they receive the material benefit, in the vast majority of situations. Political offices fail because the office holder does not benefit, or benefits only in a limited, artificial manner,2 from his good decisions. Only the competition of a free market, where the inefficient businessman suffers certain losses and the efficient gains profits, preserves as much as possible natural consequences. Thus, the lesson I draw from rational irrationality is that as many decisions as possible ought to be determined by free action, with the market coordinating interpersonal transactions.

1 Socialism, strictly speaking, refers to the state ownership of capital, and not to income redistribution. Mere support of income redistribution merits another term, which I cannot at this time remember.

2 I call artificial a consequence of an action made so only by the deliberate action of another. Thus, a performance benefit for beneficial action is an artificial benefit, while a share in the innate benefits is a natural. I do not condemn artificial benefits, as for example the deterrent function of punishment, but I hold it to be inferior to natural benefits, as natural benefit can not be distorted and artificial can.

Rational Irrationality

Election day has passed; America has a new president elect. Specifically, America has a president elect who seems completely ignorant of economics. Thus, regardless of whether one agrees with his economic objectives, he is unlikely to be able to realize those goals. Why, then, did so many vote for him?

I see several alternatives. The first is that the voters are simply bad decision makers, unable to tell what lies in their best interests. But this seems inconsistent with what we see elsewhere. The American entrepreneur is the quintessence of the type. Americans are elsewhere condemned not for their naivety, but for their excessive self-interested calculations. So Americans are not bad decision makers normally.

Perhaps Americans are simply ignorant. But how can this be, when we have been bombarded by election propaganda for over a year? There is certainly no lack of information, and one would have to expend great effort to avoid it. But perhaps this information is faulty? Perhaps the candidates are not revealing their true beliefs? But I condemn not some arcane policies of Obama, unknown to any without exhaustive research; instead I condemn that which is held with the greatest pride, his fundamental faith in government and mistrust of the market. The voters know him for whom they vote.

What, then, remains to explain Americans’ bad decisions with regard to politics? Voters are normally good decision makers, and have good knowledge of the issues at stake. Clearly, if both of these factors were true with respect to elections, voters would make a good decision. But they did not. Clearly, then, one must not hold with respect to elections. The second was proven specifically with regard to this elections. So we must change the first, holding that voters, while normally rational, make poor decisions in elections.

But nothing happens without cause. Why do normally rational voters vote poorly in light of available information? Unfortunately, I can see no means of proving one cause to be predominant in an event so complex as elections. But one fact does grab my attention: that while in business and consumption one reaps the full effects of one’s decision, both material and psychic, in voting one does not. Specifically, one’s rewards are divided, into psychic benefit inherent to voting for a candidate, which is guaranteed, and material benefit (what one gains from having the preferred candidate in office) deriving from having a better politician in office, which is achieved only if one’s vote influences the results of the election (for even if one votes for the winning candidate, if that vote was not the decisive vote, then one would have achieved the same material well-being had one voted otherwise). Thus, if psychic and material utility work in opposite directions, one could rationally vote for a candidate with harmful policies, as the low probability of one’s vote being decisive would cause that harm to be an insignificant factor in his decision. So bad voting could be rational. Why, then, should we condemn it? Because the material effects do not go away. Its lack of impact on the voting decision does not mean that people do not care. In fact, I think that most voters would rather have a president with proper policies than have any psychic utility achievable in voting by a substantial margin.1 Thus, in an election, each voter pursuing his own interests can lead to a result extremely harmful to the entirety.

How does this work? The best description I have encountered is Bryan Caplan’s term “rational irrationality”. In pursuing psychic interests, voters are acting rationally to maximize their utility. But at the same time, they are acting irrationally, for this process inevitably involves a suspension of judgements and false views of reality.

What is the general tendency of rational irrationality? Unfortunately, I think that it is towards large government. Government interference with the free market can achieve very few goals (such as the wanton exercise of power, or destruction of the economy); it cannot lead to increases in efficiency, nor can it redistribute wealth without great harm. Thus, almost everyone should want a small government, regardless of whether they wish to help the poor, protect the environment, or enrich themselves. But there is something peculiarly unsatisfying to saying “Help end poverty; vote to end welfare”. Thus, I think that someone truly interested in helping to end poverty would be much more satisfied if given the option of doing something much more concrete, particularly if he could pass off the costs through government (as opposed to doing something on his own initiative). Thus, he would derive greater psychological utility from voting for a candidate who promised to fight poverty than from an advocate of the free market (so long as he actually believes the claim of the first; his irrationality is believing this claim not because it is true but because he derives greater psychic utility from acting on it than from acting on the truth).

Voters are normally rational, but have a fit of temporary insanity in the voting booth. How else are we to account for their persistent bad decisions?

1. This is not an accusation of egotism; I do not assume that voters care only about their own interests. Rather, I am saying that candidates would like to have their goals actually realized. Thus, if one were interested in helping the poor and thus favored policies harmful to one’s private interests that could nevertheless be expected to help the poor, this would exhibit no trace of irrationality.

Government Under the Law

Government Under the Law

Most Americans, and other Westerners, claim to value a government under the law. But to what law do they refer? This law could be a law the government sets for itself, but then the statement would be meaningless: even a despotism is likely to have some standard procedures, yet no one would consider such a government to be under the law. Indeed, such a system does not strictly fit the statement, for the government would be simultaneously over and under the law, rather than purely under it. Thus, the government cannot be the source of this law.

Perhaps, then, this law is a law set by the people, yet unique to the government. But following this standard, any representative government (directly or indirectly) would be under the law, for the people in those circumstances establish a law for the government, but that law may yet be highly mutable. The Athenian admirals were executed in consonance with the laws established by the Athenians, yet few would consider the Athenian ochlarchy to be government under the law. Really, this is naught but a special case of the first instance, where the government sets the law; for in a representative, the people are the government, and thus no law alterable (or even once established and then immutable) by the people can base a government under the law.

Thus the law under which a government under the law operates comes not from the government, nor from the people. Whence else can it come? If from some external, active source, merely considering that source of law to be the government restores the objection. Thus, the law must be eternally immutable, existing outside any human agency: the natural law. A government under the law means a government under the standards of human rights established in the essential order of the universe.

Government under the law and rule by law compared

This definition of government under the law dissatisfies some, for it describes a government where the laws accord with natural law, but in which men may still rule. Should we not seek a form of government in which laws and not men rule? No, for it is impossible. Government under the law is possible, if difficult to attain and to maintain; rule of law cannot exist. Only that possessed of agency can truly rule, and agency is to God and his rational creations alone; to say that anything else rules is merely to inaccurately say that men rule in accord with laws. But they are under no necessary compulsion to do so. If a judge judges by whim, and not by law, what power has the law to punish him? Only another ruler, a man and not a law, can do so, and that ruler is either under the authority of another man or is a law unto himself. What legislator, legislating from inclination and contrary to the Constitution, has been struck by lightning emanating from the violated article? To ask the question is absurd, for parchment cannot act.

Government under the law is a condition of government, transient with each new law and each new judicial decision, and not a form of government. No form of government can assure adherence to natural law by elevating laws above men; we must only seek that form most likely to uphold natural law.

Pax Americana

Entering the term “Pax Americana” in Google produces 433,000 results. Some use the term in derision; too many in approbation. While our politicians have not endorsed the term, many have embraced the concept of a global peace enforced by the United States. Yet let us look at the antecedent of all this, the Pax Romana. Is such a hegemony a worthy goal?

The Pax Romana is a period of roughly 150 years, from 27 to 180 AD, in which the Roman Empire enjoyed a period of relative security. And for the citizens of Rome, this was certainly a period of prosperity and safety. No barbarians or wayward generals crossed the Rubicon; the emperors were, for the most part, good, at least relative to those of other times (at least if one omits consideration of Nero and Caligula). But the citizens of Rome were not the entirety of the world, and while many others shared the Roman Empire, few shared the Roman Peace and this “peace” was still a time of war and of oppression. This was the peace of Claudius’s legions as they conquered Britain; this was the peace of the one million civilian dead when Titus besieged Jerusalem; this was the peace of Boudica and the bloody suppression of her war for freedom: a time of peace for the rulers; a time of suffering for the ruled. But not even the rulers escaped unscathed, for they found it to be impossible to rule others while retaining their own virtue. For Rome this was a time of prosperity, but not the prosperity of Republican austerity: instead, this was the prosperity of “bread and circuses”, of decadence, of depravity. As the empire rose in might, as the Roman eagles spread across the world, the Romans forgot what it was to be Roman, forgot the ideals of citizen service, of governmental accountability, that had first built the prosperity of Rome, replacing them with spectacle, with handouts, with despotism. And thus, the Roman Empire fell, its foundations cut away by its final, superficial triumph.

So, what out we to expect from a Pax Americana? Peace in our time, perhaps. But not a peace of virtue, of mutual desire and mutual cooperation. Rather, a peace by war, and not even by the threat of war, but by the active use of war. And since this would a peace of force, of hegemony, let us not speak of ourselves as a global police force and of “making the world safe for democracy”. Justice is not to be found in violence, aside from the redress of specific wrongs. Furthermore, as our society comes to rely on war, the slave will become the master. Just as the Roman Republic could not grant the powers to its generals necessary for the latter to expand the empire without risking the ascension of those generals into supreme power, consummated first in the triumvirates and ultimately in the Caesars, we cannot expect to found a world order dependent on the military and still expect to retain control of that military. Let us remember that few men in the history of the world valued their form of government more highly than did the citizens of the Roman Republic, and yet the Roman Republic became the Roman Empire. Let us not feel so secure in our Constitution as to allow forces that must in time destroy that Constitution. Peace through force we may have; but if we desire a just or a lasting peace, let us look to cooperation and not antagonism.