George H. Smith
Anarchism is a theory of the good society, in which justice and social order are maintained without the State (or government). Many anarchists in the libertarian movement (including myself) were heavily influenced by the epistemological and moral theories of Ayn Rand. According to these anarchists, Rand’s principles, if consistently applied, lead necessarily to a repudiation of government on moral grounds.
I call this rational anarchism, because it is grounded in the belief that we are fully capable, through reason, of discerning the principles of justice; and that we are capable, through rational persuasion and voluntary agreement, of establishing whatever institutions are necessary for the preservation and enforcement of justice. It is precisely because no government can be established by means of reason and mutual consent that all Objectivists should reject that institution as unjust in both theory and practice.
Although it is sometime useful to distinguish between the meanings of “State” and “government,” such distinctions are irrelevant to the present discussion, so I shall use the terms interchangeably. Following the classic discussion of the sociologist and historian Max Weber, I shall define the “State” as a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”
The State is vested with the exclusive power to enact legislation, adjudicate legal disputes, enforce laws, etc., while forcibly preventing other individuals and associations from engaging in the same activities. The State, in other words, exercises a coercive monopoly in the enforcement of justice. This ultimate power of decision-making is known in political theory as “sovereignty.” In the words of the historian A. P. d’Entreves, “the problem of the birth of the modern State is no other than the problem of the rise and final acceptance of the concept of sovereignty.”
The concept of sovereignty is the focal point of the current debate between anarchists and minarchists (a label coined by Sam Konkin for the advocates of minimal, or “limited,” government). The fundamental problem is this: Where does the right of sovereignty come from, and how can it be justified? This is an especially difficult problem for those in the Lockeian tradition of minarchism – which, in this context, includes the followers of Ayn Rand.
John Locke (like Ayn Rand) believed that all rights belong to individuals. There are no special “group rights” that exist in addition to individual rights. The rights of all groups (including the group that calls itself a “government”) must be based on, and in some way derived from, the rights of individuals.
I call this approach political reductionism, because it maintains that the sovereign rights of a (legitimate) government are reducible to the rights of individuals. Political reductionism stands in opposition to political emergence theory, which argues that at least one right (usually the right to enforce the precepts of justice) does not originally belong to individuals, but emerges only in civil societies under government.
Now, having presented this background material, I will address several key issues in the minarchist/anarchist controversy.
AYN RAND AND THE SOCIAL CONTRACT TRADITION
According to John Locke, every person in an anarchistic state of nature would possess the “executive power” to enforce his own rights against the aggressive actions of others. But owing to various “inconveniences” (such as the likelihood of personal bias when acting as judge in one’s own case), Locke argued that rational people would unanimously agree to leave this state of nature and join a “civil society,” which would thereafter use majority rule to decide upon a particular form of government, such as constitutional monarchy, democracy, and so forth.
This “social contract” was Locke’s way of accounting for our obligation to obey the political sovereign. Beginning with the rights of individuals, Locke tried to show how the executive power to enforce these natural rights would be delegated, through a process of consent, to government. Eighteenth-century Americans were chiefly indebted to John Locke for their belief in government by consent.
Ayn Rand defends a consent doctrine in several of her essays, but she never explains how this consent should manifest itself – whether, for example, it must be explicit or merely tacit (as Locke believed). Nor does she explain precisely which rights are delegated to government and how they are transferred. Therefore, although Rand appears to fall within the social contract tradition (at least in a general way), it is unclear where she would stand on the nature and method of political consent. I sincerely hope that some of her minarchist followers can shed some light on this problem.
CONSENT THEORY VS. GOVERNMENT
Many of John Locke’s critics – such as David Hume, Josiah Tucker, Adam Smith, Edmund Burke, and Jeremy Bentham – argued that the inner logic of consent theory, if consistently applied, will land us in anarchy. As these critics pointed out, no government has ever originated in consent, and there is no reason to suppose that individuals, in full possession of their natural rights, would ever subordinate themselves voluntarily to a government.
I agree with these critics. If we accept the premise that individuals (and only individuals) possess equal and reciprocal rights, and if we insist that these individuals must consent to be ruled by a government, and if we condemn as illegitimate all governments that rule without consent – then all governments, past and present, have been illegitimate.
Furthermore, I maintain that Objectivists, if they are to remain true to the consent doctrine, must embrace this kind of “practical anarchism” and condemn all historical governments as unjust. True, Objectivists insist that government can be justified in theory – though none (that I know of) has ever spelled out the necessary criteria – but this theoretically legitimate government has never existed anywhere on this earth. Nor can it exist anywhere except in what Edmund Burke called “the fairyland of philosophy.” As Josiah Tucker (a contemporary of Burke) put it, the consent theory of government is “the universal demolisher of all governments, but not the builder of any.”
John Locke identified two fundamental problems that must be addressed by the political philosopher. First, what is the justification of the State? Second, assuming that we can justify the State in theory, what are the standards by which we can judge the legitimacy of a particular government? Too often minarchists deal only with the first question, while ignoring the second.
Suppose I am asked what could conceivably change my mind and cause me to endorse government, and suppose I give the following reply: “If I believed in the God of Christianity, and if I believed that God had dispatched a squad of angels to communicate with me personally, and if these angels told me that the State is a divine institution, ordained by God for the protection of human rights, and if these angels further informed me that anarchism would lead to widespread death and destruction – then, under these circumstances, I would abandon my anarchism in favor of minarchism.”
But consider an important feature that would be missing from my newfound justification of the State. While believing that the State is justified, qua institution, I would not possess specific standards by which to judge whether a self-professed “government” is in fact a legitimate State at all, or whether it is merely a gang of usurpers and oppressors who claim to act on behalf of that divine institution.
As a remedy for this problem, suppose the angels provide me with a clear and unmistakable standard, to wit: “You will know legitimate rulers by the visible halos over their heads. This sign, and this sign alone, will mark the agents who are authorized by God to act on behalf of the State.” Well, after looking around at the functionaries of existing governments, and after seeing no such halos, I would conclude that no one who presently claims to represent the State is morally authorized to do so. On the contrary, I would surmise that America is currently in a state of anarchy, since it contains no legitimate government – so, devoted minarchist that I am, I would dedicate my life to abolishing our wicked “government” and to exposing those Satanic politicians who fraudulently pose as functionaries of that divine institution, the State.
This is a species of the “practical anarchism” that Objectivists must logically endorse. For halos, they have substituted consent as the discernible sign of a legitimate government – and, like halos, consent is nowhere to be found in real-life governments. Hence, while defending the State in theory, these consent-minarchists should oppose all existing governments in practice. And this, I dare say, is a kind of minarchism that I can live with quite well – for we are more likely to be visited by angels than to find a government based on consent.
AYN RAND, ANARCHIST
My next point will probably cause me to be branded as a psycho-epistemological pervert, but here it is: I am convinced that Ayn Rand was essentially an anarchist in substance, if not in name. She was at most a nominal governmentalist. If the conventional meaning of a word is to count for anything at all (and it should), then Rand’s ideal “government” is in fact no government at all, but is merely a sheep in wolf’s clothing.
How can I make this outrageous claim? I base it on Rand’s moral opposition to coercive taxation. The power of coercive taxation, as Alexander Hamilton said in The Federalist Papers is the very life-blood of government. Indeed, the great debate over ratification of the United States Constitution centered on whether or not the federal government should have the power to tax. The Articles of Confederation had withheld this power from Congress, reserving it exclusively for the states. Many Anti-Federalists opposed the Constitution because they realized that the federal government, if granted the power to lay and collect taxes directly from the people, would strip the states of their sovereign authority.
If the defenders of either side in the ratification debate had encountered Rand’s argument for “voluntary taxation,” they would have assailed it, first, as a veritable contradiction in terms (which it is), and, secondly, as a rejection of sovereign government altogether (which it also is). Virtually every defender of government – from John Locke to Thomas Jefferson to Ludwig von Mises – has recognized coercive taxation to be an essential component of sovereignty, a power without which no true government can exist.
The principle of “voluntary taxation” reduces Rand’s “government” to a free-market protection agency, which, like every business, must either satisfy its customers or close up shop. What is to prevent a dissatisfied customer from withholding his money from a Randian “government,” while subscribing instead to the services of another agency? Why cannot a landowner (or combination of landowners) refuse to pay for the services of their Randian “government,” which they regard as inefficient, and take their business elsewhere?
The right to pay for services or not, according to one’s own judgment, is a characteristic of the free market; it has no relationship, either theoretically or historically, to the institution of government. There is no way a government can retain its sovereign power – its monopoly on the use of legitimate force – if it does not possess the power of compulsory taxation.
When the nineteenth-century minarchist Auberon Herbert advanced his theory of “voluntary taxation,” he was widely praised by anarchists, such as Benjamin Tucker, who embraced him as one of their own. But he was assailed by fellow minarchists, such as Herbert Spencer, who correctly pointed out that Herbert’s position was indistinguishable from anarchism. Likewise, Rand’s position on taxation places her squarely in the anarchist camp – her idiosyncratic use of the word “government” notwithstanding. We should focus in this debate on the concept of government and its essential characteristics, not on the word usage of a particular writer.
OBJECTIVE JUSTICE VS. LEGAL MONOPOLISM
I defend anarchism, or society without the State, because I believe that innocent people cannot be forced to surrender any of their natural rights. Those who wish to delegate some of their rights to a government are free to do so, provided they do not violate the rights of dissenters who choose not to endorse their government.
As Ayn Rand has said, the lives of other people are not yours to dispose of. Yet this is precisely what every government attempts to do. A government initiates physical force (or the threat of force) to prohibit other people from exercising their right to enforce the rules of justice. (Either every person has this executive power, or no one does, according to the principle of political reductionism.) A government, while engaging in certain activities which it claims are just, coercively prevents other people from engaging in those selfsame activities.
By what moral means, I ask, does a government come to possess this exclusive right? A government cannot bestow justice on an action that would be unjust if undertaken by someone else. Nor can a government, through force or arbitrary decree, render an action unjust when undertaken by someone else, if that same action is just when undertaken by government. The principles of justice are objective and therefore universal; they apply equally and without exception to every human being, as does every rational precept and procedure. A mathematical computation, for example, cannot be correct when computed by a government, and incorrect when computed by someone else. A deductive syllogism, if valid for those in government, is equally valid for those outside of government. Murder, if wrong when committed by an individual, is equally wrong when committed by a government.
Likewise, an activity, if moral when pursued by a government, is equally moral when pursued by someone else. All this should be obvious to those who agree with the principles put forth by Ayn Rand. If, therefore, the principles of justice are objective (i.e., knowable to human reason), then a government can no more claim a monopoly on the legitimate use of force than it can claim a monopoly on reason.
Those minarchists who claim that justice can prevail only under government must implicitly defend the view that justice is either subjective or intrinsic. If justice is subjective, if it varies from one person to the next, then government can be defended as necessary to establish objective rules. Likewise, if justice is intrinsic to government itself, if whatever a government decrees is necessarily just, then government is justified automatically.
If, however, justice is neither subjective nor intrinsic, but instead is objective – i.e., if it can be derived by rational methods from the facts of man’s nature and the requirements of social existence – then the principles of justice are knowable to every rational person. This means that no person, group of persons, association, or institution whether known as “government,” “State,” or by any other name – can rightfully claim a legal monopoly in matters pertaining to justice.
Rational anarchism, in short, is simply the application of Ayn Rand’s theory of objective knowledge to the realm of justice.
STATE-SOVEREIGNTY VS. SELF-SOVEREIGNTY
As far as I know, the first sustained attack on legal pluralism came from Marsilius of Padua in the fourteenth century. In his Defender of the Peace, Marsilius attacked the legal pluralism of his day – especially as it pertained to the political authority of the Church and he maintained that one authority, and one alone, should have sovereign power in a given territory.
In defense of this view, Marsilius argued that to deny the right of sovereignty leads ultimately to a logical contradiction. Someone – some person, association or institution – must have the authority to render a final verdict in order for a legal system to operate. One of Marsilius’s more interesting examples went something like this:
Suppose two “competing governments” (to use the misleading terminology of Ayn Rand) claim jurisdiction over the same territory, and suppose both have the right to issue compulsory subpoenas that require a person to appear in court on a given day. Furthermore, suppose I receive subpoenas from both agencies demanding that I appear in court at exactly the same time. Since it is impossible for me to be in two places at once, it is impossible for me to obey both governments simultaneously.
Yet this conflicts with our initial premise – that both agencies have a rightful authority to issue subpoenas – because I am logically required to disobey at least one of these governments.
I don’t know the official Objectivist position on subpoenas, but the logic of the foregoing argument can easily accommodate other examples. The important point here is the reasoning behind this “logic of sovereignty argument,” as it is sometimes called. This argument exerted considerable influence after 1576, when Jean Bodin used it to defend absolute monarchy. It was also used for the same purpose in the seventeenth century by Sir Robert Filmer (Locke’s dead adversary) and Thomas Hobbes.
It is scarcely accidental that the logic of sovereignty argument was a favorite among the defenders of absolutism, and was vigorously opposed by John Locke and other champions of limited government. For consider: If the sovereign (whether one man or group of men) is the final arbiter in all matters pertaining to justice, then how can the sovereign himself be held accountable for committing acts of injustice? The absolutists insisted that he cannot be so judged by any human authority; the sovereign was accountable to “none but God.”
Sovereign power, in this view, must be absolute (i.e., unconditional), because by definition there is no higher authority than the sovereign himself. The sovereign is therefore above the law, not under it, which means that there can exist no rights of resistance and revolution by the people. To advocate a “divided sovereignty,” according to Filmer, Hobbes and other absolutists, is to advocate anarchy.
I cannot go into the various ways that Locke and other minarchists tried to get around this logic of sovereignty argument, but I think the absolutists had the stronger philosophical case. Either a government has sovereign power, or it doesn’t. Either a government has the final authority to render and execute legal decisions, or it doesn’t. Sovereignty is an all-or-nothing affair. And if this is true, then no person has a right to resist the sovereign, however unjust his actions may appear. For who is to decide whether a law is unjust, if not the sovereign himself? Who is to decide whether a right has been violated, if not a sovereign government in its role as final arbiter?
In any dispute between a sovereign government and its subjects, the government itself must decide who is right; and, as Locke suggested, the sovereign, like everyone else, is likely to be biased in his own favor.. I would therefore like to know how those Objectivists who use the logic of sovereignty argument as a weapon against anarchism can avoid sliding down the slippery slope into absolutism.
If I am arrested for smoking pot or for reading a prohibited book (say, Atlas Shrugged) do I have a right forcibly to resist my incarceration?
If you say “no,” then you are defending absolutism. If you say “yes,” then what happened to the sovereign power of government to render final decisions in matters of law? – for in resisting the government I am clearly acting as judge in my own case.
Ayn Rand somewhere says that a government becomes tyrannical when it attempts to suppress freedom of speech and press, but who is to decide when this line has been crossed, if not the sovereign government? Surely we can’t have crazy people like Ayn Rand running around condemning some laws as unjust and calling for disobedience, because this will lead to anarchy. We cannot preach sovereignty when it suits our purpose, and then oppose it when we don’t like particular laws, for this undermines the rationale of sovereignty itself – i.e., that legal matters cannot be left to the discretion of individuals. The doctrine of natural rights, as foes of consent theory repeatedly pointed out, is inherently anarchistic. Burke called natural rights “a digest of anarchy,” while Bentham castigated them as “anarchical fallacies.”
If at any point Objectivists are willing to admit that individuals have the right to resist an unjust law or overthrow a despotic government, then they are conceding the basic premise of anarchism: namely, that true sovereignty resides in each individual, who has the right to assess the justice of a particular law, procedure or government.
There can be no (logically consistent) middle ground between state-sovereignty and self-sovereignty, between absolutism and anarchism. I defend the self-sovereignty of anarchism. If Objectivists do not understand how I can defend the individual as the “final authority in ethics,” I recommend they read Ayn Rand’s essay on that topic.
THE LOGIC OF STATE-SOVEREIGNTY VS. OBJECTIVE JUSTICE
In over twenty-five years of arguing with Randian minarchists, I have encountered few who seem even remotely aware that the logic of sovereignty argument has been a central theme in political theory for over four centuries. Those familiar with its long history will understand that it has everywhere and always been used to defend and expand the absolute power of government.
In The Federalist Papers, for example, both Madison and Hamilton repeatedly use the logic of sovereignty argument to defend extensive discretionary powers in the federal government, and to prove that no limit can logically be imposed on the taxing power of Congress. Indeed, Hamilton insists that an “unqualified” (i.e., absolute) power to tax is logically deducible from the axiom of sovereignty, and Madison defends a similar position.
As the saying goes, if you lie down with dogs, you get up with fleas. The minarchists who lie down with the logic of sovereignty argument are infested with the fleas of absolutism, but apparently they haven’t noticed or don’t care.
Our primary concern should be with the justice of a legal system – i.e., with what laws are enforced, not withwho enforces them. This justice can be ascertained by objective standards of right.
If the legal system of an agency (whether governmental or private) is truly just as evaluated by objective standards – and if, by “competition,” we mean any attempt forcibly to overturn this legal system, replacing it with an unjust system – then our agency may forcibly resist and overthrow the outlaw agency, owing to its effort to violate individual rights.
As I said, however, the right to suppress the outlaw agency has nothing to do with the alleged necessity for a final arbiter. Rather, it is simply an application of the right of every individual, whether by himself or in combination with others, to resist and repel despotism, whatever the source of that despotism may be. The pertinent issue, therefore, is not whether we need a coercive monopoly to enforce justice; but whether we can determine the justice of legal system by objective methods, and whether, having objectively condemned a given system as unjust, we can then forcibly resist any individual or agency which seeks to impose that system.
This has everything to do with the individual right of self-defense, as manifested in the libertarian rights of resistance and revolution, and has nothing whatever to do with the supposed need for a final arbiter.
Objectivists, if they are to remain true to the theory of rights defended by Ayn Rand, must agree with anarchists that the moral legitimacy of a particular government depends, not on the subjective claims of that government, but on true measure of justice in its legal system, as evaluated by objective criteria.
If a legal system is objectively just, then its enforcement agency (whether governmental or private) may properly restrain the “competition” of an unjust legal system, whether implemented by a government or by a private agency. If, however, the competitor also works within the framework of a just legal system (perhaps differing from the other agency in optional matters of procedure), then that competitor may not be forcibly restrained from entering into contractual relationships with willing customers.
The logic of sovereignty argument is valid only within a subjective theory of justice, where a coercive arbiter must prevail in the absence of reason. In an objective theory of justice, however, what appears to minarchists (mistakenly) as the logic of sovereignty – i.e., the right forcibly to eliminate unjust agencies – has in fact nothing to do with the supposed need for a final arbiter, but is instead the application of an individual’s right of self-defense.
Minarchists, after noting that an objective theory of justice can generate the right to exclude competing agencies in some cases (i.e., when the agency is unjust), erroneously conclude that this right flows from political sovereignty. But sovereignty demands the exclusion of competing agencies in all cases, even if the competitor is far more just than the sovereign itself. Sovereignty, based as it is on subjectivism, cannot logically discriminate between just and unjust legal systems, so it transforms the de facto power of an existing government into de jure sovereignty – operating, in effect, from the maxim of Alexander Pope, “Whatever is, is right.” This is why the theory of sovereignty and its attendant absolutism have always denied the rights of resistance and revolution.
A system of objective justice, on the other hand, enables us to discriminate between the initiation of force and the retaliatory use of force, thereby providing a rational method of assessing any person, agency or government which claims to use legitimate violence. Furthermore, a system of objective justice defines and sanctions the use of defensive violence, which has traditionally been expressed in libertarian theory as the rights of resistance and revolution.
These rights, which stem from the individual right of self-defense, can justify the suppression of any agency or government that seeks to impose an unjust legal system. And though this suppression of “competition” may sometimes bear a superficial resemblance to the sovereign suppression of all competition (whether just or unjust), this should not mislead Objectivists and libertarians into supposing that these two actions – one by a sovereign government, the other by a private justice agency – are based on the same mode of justification.
One (suppression by a sovereign government) is rooted in political subjectivism (or relativism), and has no relationship to the justice or injustice of the victimized agency. The other (suppression by a justice agency) is rooted in political objectivism, and is confined solely the suppression of unjust agencies and governments. The former power is justified by political sovereignty, a right that cannot be reduced to the rights of individuals. The latter power is justified by the right of self-defense, a right that is possessed equally by every individual and can be delegated (or not) to a specialized agency. The former theory leads necessarily to absolutism and cannot be reconciled with consent. The latter theory generates agencies whose power is specifically limited by the consensual delegation of rights by individuals.
As I have said before, we must ultimately choose between state-sovereignty and self-sovereignty, between absolutism and anarchy, between subjective decree and objective justice. There is no middle ground in logic. The chickens of the Law of the Excluded Middle have come home to roost. And they are fouling the minarchist nest.
LEGAL PLURALISM VS. STATE-SOVEREIGNTY IN HISTORY
The lesson here is that power is always dangerous, regardless of who wields it – be it a private protection agency or a sovereign government.
As Acton said, “Power tends to corrupt, and absolute power corrupts absolutely.” Even the rulers in an ideal Objectivist society would be likely to abuse their power, and would therefore require constant monitoring. (I ask you, who is more likely to seek power in an Objectivist society – the Howard Roarks or the Ellsworth Tooheys?) It was this concern about the abuse of power that led Thomas Jefferson and others in his tradition to favor decentralization, a system in which power is checked by other external powers.
This was the original idea behind “limited government.” A “limited government” was a government whose power was limited, or checked, by another power external to itself. Ultimately, according to Locke, Jefferson, and other minarchists, the only effective check on sovereign power is the right of the people to resist unjust laws and overthrow despotic governments. This sovereign right of the people was the external check that imposed real limits on a “limited government.”
There are very good reasons to suppose that legal pluralism would be more effective in preserving justice than legal monism. The Western legal tradition, as many historians have pointed out, was rooted in legal pluralism. Legal pluralism existed in Europe for many centuries, until it was finally destroyed by rapacious and violent monarchs. Medieval Europe had a complex network of political authorities, legal systems and overlapping jurisdictions. There existed customary law, the king’s law, feudal law, municipal law, canon law, and so forth. What some minarchists claim cannot exist, therefore, did in fact exist for many centuries.
Moreover, as Voltaire, Lord Acton and other liberal historians have argued, the Western World owes its liberty to the conflict among these competing authorities. Neither the spiritual nor the temporal authorities had libertarian intentions, but the ongoing competition between these institutions gradually led to the development of “intermediate” institutions (such as municipalities), as Pope and Prince conceded various “liberties” and “immunities” in an effort to win allies to their side. And it was these intermediate institutions, not governments, which were largely responsible for the freedom that is unique to the Western World.
A remarkable system of competing governments also existed in America for many decades prior to the War for Independence. The colonials came to regard their provincial governments as independent and autonomous institutions that were necessary to check British power. And the British government, in its turn, restrained the power of the colonial assemblies. This situation resulted in a paralysis of power (since neither government could do much) and in a great deal of personal liberty.
Later, after the countervailing power of Britain had been eliminated by a successful Revolution, the Constitution established a powerful national government – which, as Madison proudly announced during the Philadelphia Convention, was vested with greater powers than even the British Parliament against which Americans “have so lately rebelled.”
This sentiment was seconded in The Federalist Papers by Alexander Hamilton, who criticized the fundamental principles of the American Revolution, called for their repudiation by the American people, and advocated instead a Constitution and monopolistic government that were based on a newer and more sophisticated “science” of political sovereignty.
In just a few short years the decentralized legal pluralism of pre-Revolutionary America had succumbed to the logic of sovereignty and a powerful central government – those evil Siamese-twins that are largely responsible for our present unhappy condition.
Consider two of the most powerful and influential ideas in twentieth century politics: the notion of an all-powerful State that is the sole arbiter of justice, and the notion of an infallible general will that can force people to be free. The former was the brainchild of Thomas Hobbes, the latter of J.J. Rousseau. Consider also that it was these two philosophers of sovereignty who, more than anyone else, separated sovereignty from its religious roots in the divine right of kings, gave it a secular foundation, and unleashed the “mortal god” of Leviathan on the Western World.
I don’t defend anarchism because I ever expect to see an anarchist society. (An anarchist America is almost as unlikely as an Objectivist America.) But I do think we can effectively combat statism with the right intellectual ammunition, and this includes the total repudiation of political sovereignty in favor of individual rights and voluntary institutions.
(Copyright November 1997)
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