A good example of what I’m calling the “soft” argument would be this:
“I think that the person who makes this argument is already assuming that the government has some legitimate jurisdiction over this territory. And then they say, well, now, anyone who is in the territory is therefore agreeing to the prevailing rules. But they’re assuming the very thing they’re trying to prove – namely that this jurisdiction over the territory is legitimate. If it’s not, then the government is just one more group of people living in this broad general geographical territory. But I’ve got my property, and exactly what their arrangements are I don’t know, but here I am in my property and they don’t own it – at least they haven’t given me any argument that they do – and so, the fact that I am living in “this country” means I am living in a certain geographical region that they have certain pretensions over – but the question is whether those pretensions are legitimate. You can’t assume it as a means to proving it.” — Roderick Long, Libertarian Anarchism: Responses to 10 Objections
This is a valid argument. The person that is claiming that the state is legitimate because one implicitly consents to the rules established within its claimed territory is presupposing the legitimacy of the state’s territorial claim to begin with, and this is something that they must prove. There is a burden of proof for the legitimacy of any territorial ownership claim. In the absence of a standard for the legitimacy for territorial ownership claims and in the absence of proof that a given claim meets that standard, an “implicit consent” or “love it or leave it” argument inherently fails. This inherently begs the question of what the standard is for the legitimacy of territorial ownership claims.
But this argument is “soft” for a number of reasons. For one thing, it leads to a meta-debate about the criteria for legitimate ownership, and the state can be either justified or unjustified depending on what criteria one uses. But, more importantly, I don’t think that it adequately expresses what the problem with the state is. It gives the impression that if the state did meet the criteria for legitimate ownership, all of its powers would indeed be justified. In other words, it appears to unduly reduce the question of the state to one of legitimacy in land aquisition. But the problem with the state isn’t simply that it doesn’t legitimately own the territory that it claims power over, but extends further to the fact that there is something wrong with the arbitrary or unqualified kind of authority that it claims and exersizes in general. The “soft” argument is still functioning within a certain paradigm of “legitimacy” that is relative to “who is the owner?”.
The “hard” argument against the state goes further than this: even if we do presume, for the sake of argument, that a given individual or group is a “legitimate” owner, this still would not justify the kind and scope of power of a state. There isn’t only a burden of proof for the legitimacy of an ownership claim, but there is a burden of proof for the legitimacy of authority claims derived from ownership. This approach to the question inherently increases the burden of proof and implies a conceptual limit on “property rights”, particularly as it relates to land, because it declares that the ownership of land in and of itself does not justify absolute, unqualified authority over other people. In constrast, the “soft” argument is open to being turned on its head as a re-legitimization of the state, dependant only on a norm for the legitimacy of property aquisition.
An analogy to a more small-scale context may drive the point home. For the sake of argument, let’s presume that I legitimately own a home. Would it make sense for me to claim that by virtue of the fact that I own my home, anyone that visits must do literally whatever I tell them, and that I am justified in doing whatever I want to anyone that happens to occupy it at any given moment? Such a claim would be laughed out of court as a ridiculous propertarian justification for slavery and murder. But the state is just a large-scale embodyment of this. The members of the political class constitute the defacto “owners” of the territory that the state has jurisdiction over, and at the end of the day they have ultimate authority over the lives of everyone else within the territory. Asking “who is the legitimate owner?” isn’t enough. One has to ask “what kind of authority should an owner really have?”.
In short, the problem with the state is really just an application of a more general criticism of authoritarianism, and the state just happens to be a case of authoritarianism that is applied to the largest geographical area. This constitutes a certain form of “thickness” in which anti-statism is really just a part of a broader social philosophy. The burden of proof for an authority claim is higher than the “soft” anti-state argument suggests, since it is not simply relative to who is an owner. The “strong” anti-state argument proposes that it isn’t a question of who has the authority, but a more general question about the rational limits of authority, and that “consent” is impossible in a context in which options are limited by the circumstances and assorted inherited power structures.
This also inherently raises the bar for what the necessary and sufficient conditions of a free society are. A free society isn’t simply dependant on the right norm of property aquisition and a narrow, vague sense of “voluntaryism”. “Voluntaryism” is effectively neutralized by the dominance of pre-existing authority structures and a social atmosphere that leaves little choice other than one of asqueisance. I don’t think that the formula for a free society reduces to a redistribution of ownership claims while the general rubric of authoritarian norms that can be derived from ownership claims remain relatively unchallenged. An overly simplistic sense of propertarianism and voluntaryism seems to contain the seeds of its own dissolution, because it doesn’t contain sufficient checks to avoid the re-justification and ultimately the re-emergence of the state from within its formula.
With this in mind, I urge libertarians to think more critically about their own arguments and be open to the prospect that there may be holes that need to be filled in order to avoid the possibility of their own concepts being used as justifications for precisely what they hopefully intend to be countering. We need a lot more ammunition than “but they didn’t homestead this land!”, and we should be cognizant of the dangers of certain overly zealous tendencies that exist within. There is much that can be done to strengthen our case and make us more internally consistent. I think that it’s time to harden the arguments and steer clear of laying the foundation for one’s own failure.
[Note: To be clear, none of this is particularly intended as an attack on Roderick Long, even though I quoted him as my example of the “soft” argument. I have a lot of respect for Roderick Long. I’m quite certain that, as exemplified in various other writtings of his, Roderick Long tends to have certain tendencies towards “thickness” that strengthen his anti-statism. However, I do think that the kind of argument that he presented in the quote is insufficient and open to valid objections by soft propertarians and anti-propertarians for the reasons gone into above.]