Friday, March 26, 2004

The Great Divorce, Part 2
By Roderick Long

In The Great Divorce, Part 1, I criticised Tibor Machan’s position that the difference between minarchism and Market Anarchism is “only apparent.”

Dr. Machan has now posted two replies: Some Initial Replies to Dr. Long’s Critique of “Anarchism and Minarchism: A Rapprochement” and ‘Government’ vs. ‘State’. In what follows I quote excerpts from Dr. Machan’s posts along with my replies:
This is confusing: “he would be justified in using coercive measures to eject these trespassers...” What it should say is that “he would be justified in using forcible measures to eject these trespassers....” Coercion is by definition the use of force that violates rights, especially within the framework of libertarianism. Force, on the other hand, may or may not.

Along similar lines, then, “justified coercion” is an oxymoron – it means “justified initiated force against another.”
Not in my dictionary (or any dictionary I’ve ever looked at). The word “coercion” means any kind of force or compulsion, whether initiatory or not. The word for initiatory force is “aggression” or “invasion,” not “coercion.”
Dr. Long says, “In other words, the idea seems to be that competing protection agencies are likely to violate rights in the course of offering their protection, and so government is justified in prohibiting them.” That is wrong; he is jumping to conclusions I did not endorse, that government may ban other governments. My point is that a bunch of us have good, ethical reasons for instituting government qua due-process-observing-agency. There is no mention here about banning anything, none at all.

Since however such an agency must have geographical contiguity – which is the nature-based option – so as not to generate routine (though at times in human history temporarily and luckily avoidable) problems of border crossing, such a government as one bunch shall institute will naturally – not only as a matter of consumer preference – involve a sort of monopoly within a given area. But those not liking it can always go next door, just as those who don't like the services offered by, say, the local electrical company can move to the one serving the other neighborhood. (The big difference is that electrical companies do not go around rounding up people called criminals!)
I take it, then, that Dr. Machan’s position is this: the agency he calls “government” should not prohibit competition, but it will not need to; because government is a natural monopoly, no competitors – except in a few unusual situations – will in fact be able to compete with it for long (within the same geographical territory).

Obviously I disagree with Dr. Machan’s judgment that government is a natural monopoly. But so long as he does not favour the actual prohibition of competitors, our disagreement is about matters of fact, not about ethics or rights. (For whether we still disagree about rights also, see later below.)

On the subject of “matters of fact,” however, I must point out how pessimistic Dr. Machan’s conclusion is. The fact that a monopoly is natural rather than coercive doesn’t exempt it from the informational and incentival problems that the coercive sorts of monopolies face. If government really is a natural monopoly as Dr. Machan argues, then it follows that the provision of legal services is doomed to be more inefficient and abusive than other types of service. In short, Dr. Machan’s position implies that in the field of law, market failure is inevitable. I think both theoretical and historical considerations show otherwise.

To my historical evidence Dr. Machan replies as follows:
Dr. Long writes: “But of course we know historically that the answer to that question [whether legal jurisdictions can overlap] is yes. Surely the existence, and therefore a fortiori the possibility, of competing jurisdictions within the same territory is an established historical fact. (See Tom Bell’s bibliographic essay Polycentric Law, as well as the various links on the Molinari Institute’s anarchist resources page.)”

This I take to be the kind of argument that states, “Look here and there in the world criminals turn around and confess their crimes and turn themselves in, so there really is no need for arresting officers in the criminal law system.” One swallow – or even a few them – do not a springtime make, to quote a favorite philosopher of both of us!

In other words, some cases of maintaining, administering and protecting law exist that are dispersed over a crisscross region. I call this good fortune – the result of unusually cooperative people who do not have the misfortune of a lot of resistance to the operations of the law. But in most cases this would be unlikely, given the vast difference between people from different religions, cultures, philosophical orientations. That such a smooth operation existed in ancient Ireland and a few other places does not demonstrate that that is what most places would enjoy. Much more reasonable is it to assume that there will be ample recalcitrance and so homogeneity is a more efficient approach to uphold the law than the crisscross alternative.
I suspect few readers of the sagas would be inclined to describe the inhabitants of medieval Ireland or Iceland as “unusually cooperative people”; on the contrary, they seem an unusually ornery and contentious people whose combative instincts were gradually tamed and disciplined by semi-anarchistic institutions.

But in any case overlapping jurisdictions have succeeded in much larger and more heterogeneous cultures than ancient Ireland and Iceland. The medieval system of competing royal, manorial, ecclesiastical, and merchant courts united all of western Europe. Moreover, the tu quoque argument applies: if the relative scarcity of successful anarchies counts against anarchy, why doesn’t the relative scarcity of successful minarchies count against minarchy?
It is interesting that when Roy A. Childs, Jr., witnessed the debacle of competing governments within the same territory in Afghanistan, he gave up his Rothbardian beliefs. I believe he saw the practical, routine, results of competing legal orders within the same territory.
Here again I invoke tu quoque: if Afghanistan counts as an argument against anarchy, why doesn’t Nazi Germany count as an argument against government? Ayn Rand once write that “the root of all philosophical errors” is “to substitute for an abstraction one of the concrete applications of that abstraction, and at the same time make that concrete contradict and invalidate the abstraction.” (Journals of Ayn Rand, p. 640.) Discrediting the abstraction anarchy by equating it with its undesirable instance Afghanistan is no more legitimate than discrediting the abstraction government by equating it with its undesirable instance Nazi Germany.

Why do critics of anarchism make this mistake so often? I think it’s because while they recognise that governments can have different sorts of political structures, with very different outcomes, they think of all anarchies as being alike in having no structure – and so one unsuccessful anarchy refutes all anarchies. The misconception of anarchy as lacking political structure is one I’ve tried to rebut in my critique of Bidinotto, where I argue that anarchy is actually a constitutional system of checks and balances taken to its logical conclusion.
At the end of his comment Dr. Long puts the following questions to me:
· What is your precise definition of “state”?
· What is your precise definition of “government”?
· Do you think the competitive provision of legal services wihin a single territory is impossible?
· or possible but unjust?
· or possible and just but otherwise undesirable?
· Do you think [your] ideal minarchic government should or should not attempt to ban any attempt to compete with it (within the same territory)?
Here are my answers:

Since I do not use the term “state” (and if I ever did in the distant past I meant by it no more than “government”), and since the form of government I consider justified is non-coercive although possibly a natural monopoly by natural (but not logical) necessity, I do not want to respond to this request. Perhaps Dr. Long ought to ask a Marxist and Hegelian, not a libertarian.
I find this response odd, for two reasons. First, if Dr. Machan doesn’t say what he means by “state,” on what grounds can he object to having his favoured form of government called one? Second, I don’t see anything especially Hegelian or Marxist about the term “state”; the term is widely used by writers of all political persuasions, including libertarians (of both the anarchist and the minarchist variety). In political theory, the closest thing to a canonical definition of “state” is Max Weber’s, and that definition is hardly Marxist or Hegelian.
Government is the institution in human communities that administers, maintains and protects the legal order. A just government does all this without any coercion (use of rights-violating force). (Like marriage or medicine, the concept of government does not preclude malpractice – in this case, unjust operations. Neither does it require that all governments be unjust.)
This definition is ambiguous. Does the phrase “the institution” have to mean a single agency, or could it apply equally to a plurality of agencies?
I think that, as a rule, competitive provision of legal services within a single territory is impossible on a long term basis, with some exceptions due to very similar people involved in both the provision and the demand for those services. As noted, just because here and there such a system can function, it doesn’t follow that it is a generally functional system. Mostly, when powerful disagreements reign between the citizens of different providers (governments), then crisscrossing services will be unstable, although not for every single instance of adjudication.
This is true as far as it goes – but it’s a mistake to think of these disagreements as purely exogenous. We both shape our institutions and are shaped by them. Since neighbouring territories, under conditions of free trade and free migration, are likely to undergo considerable cultural assimilation to one another, these “powerful disagreements” are likely to decrease over time. In any case, I maintain that such political disagreements as do exist are far more intractable under a monopoly than under a competitive system, because under the latter system customers must themselves foot the bill for their favoured laws.
No one should attempt to ban any peaceful activity. However, where borders have been voluntarily established, and contracts (constitutions) establish the relationship between provider and recipient, entry past those borders would amount to invasion from outside. Jurisdictional regions may not be intruded upon by those with whom no contract for services are in force.
Here I begin to worry. On libertarian principles as I understand them (see here and here), service contracts may legitimately be enforced only via money damages and not specific performance. Hence the customers of Dr. Machan’s monopoly agency must be free to discontinue their relationship with that agency without relocating to a different territory. (If they are not so free, then Dr. Machan’s monopoly is a coercive one after all.) They may have to pay a fee for early termination of service, but they cannot be held as customers against their will. But if they are free to change service, then a rival service provider may legitimately step in as soon as its services are requested. Hence these “borders” are not and cannot be analogous to the borders of a coercively monopolistic state, which can be changed only with the state’s permission. The only case where the borders could not be altered at the decision of the customer would be in a proprietary community where the provider of legal services is also the owner (or under contract to the owner) of the community’s entire territory; this approach, while consistent with libertarian principles, has certain drawbacks which I’ve discussed previously.

It is this passage that makes me unsure whether Dr. Machan and I are disagreeing merely about a matter of fact (i.e., what the results of free entry in the market for legal services would likely be) or also about rights. If he holds that his monopoly agency would be justified on contractual grounds in forbidding its customers to switch service providers without leaving the territory, then we do disagree about rights; in that case I would call his favoured agency a “government,” and I would call any community possessing such an agency a “state.” Otherwise not.
Within libertarianism ... the concept “government” is still unstable. Anarcho-libertarians, who argue for something they dub “competing legal systems” “or competing defense organizations,” claim that the concept “government” means, essentially, “a monopoly of legal services over a given territory.” This isn’t as clear cut as one might wish. Are they talking about legally protected monopolies or monopolies plain and simple, which could mean very competitive organizations, indeed – for example, a department store sitting on a large piece of private property that has no competitor right then and there but is amply competed with by stores in the nearby vicinity? Yet where it stands, it’s a monopoly, in a sense. Or an apartment house – it too stands alone and to rent a competitor’s dwellings, one needs to move.
Dr. Machan writes as though the department store and the apartment house are “monopolies plain and simple” rather than “legally protected monopolies.” This puzzles me. The reason that these cases are territorial monopolies is that they are private property. The absence of competitors is neither a consumer choice nor a fact of nature; rather, competitors are kept out by force of law, and rightly so. This is a case of justified coercion (by which I mean force per se, not necessarily initiatory force).

I don’t think it’s mysterious what most libertarians mean by “government.” They mean a territorial monopoly maintained by force. The difference between anarchists and minarchists is that minarchists think this is one of the justified uses of force while anarchists do not. As I noted in my original post, although not all libertarians use the term this way, government is understood as compulsorily monopolistic by an overwhelming majority of both anarchists and minarchists.
There are libertarians called minarchists, with whom I am usually linked – along with Ayn Rand, John Hospers, the late Robert Nozick and during the last few years of his life, Roy A. Childs, Jr. (although he also penned a famous piece, “The Contradiction in Objectivism,” back in 1968, for Rampart Journal, in which he announced his dissent from Rand’s minarchist position). I disagree that governments may not compete and may coerce anyone. To be fair, neither did Ayn Rand agree that governments may coerce anyone – she, for example, denied that taxation is permissible while also claiming government is, thus disowning the characterization of government by perhaps the most famous anarcho-libertarian, Murray N. Rothbard.
It’s true that Rand’s ideal government lacks the power to tax. But I don’t think it’s true that Rand’s ideal government is non-coercive; I don’t see any way to read her essay “The Nature of Government” except as calling for a prohibition of competitors in legal services.

It is also true that Rothbard includes both coercive territorial monopoly and taxing power in his definition of government. My own definition would include the first but not the second. I don’t think Rothbard’s definition is as question-begging as it looks, however, for the second condition is a plausible inference from the first. Any agency possessing a coercive territorial monopoly is going to have a very strong incentive to engage in taxation; and the monopoly profits it reaps by prohibiting competitors already differ little in principle from taxes.
But as Gallie’s point makes clear, this debate as to what is the most sensible, reasonable definition of “government” is likely to continue for a long time, if not indefinitely. In my own view, for example, the institutions anarcho-libertarians support are governments in every important respect – they are administrators, maintainers, and protectors of bona fide law within human communities. What critics claim is that such administration, maintenance and protection do not require contiguous spheres of jurisdiction but could work as a sort of crisscross system.

From a few historical cases, in which such a system had been in place – in ancient Iceland, for example – these disputants conclude that as a general rule governments could operate quite happily, smoothly, with no judicial failures – such as inability to arrest prosecute criminals or to render effective service when citizens (or clients) seek police protection – serving crisscross localities. OK, so this is an interesting debate and worthy of pursuit. Either way we could get to government, however.
If we mean by “government” what Dr. Machan means by it, yes. But I think his use of that term is far more idiosyncratic than he realises.
My one beef with many who reject this idea is that they refuse to admit that “government” need not involve coercion at all. They could just as easily dispute that the crisscross system involves law, properly understood, only, perhaps, various rules or edicts or policies. And even more problematic is their all too frequent use of the concept “state” as a substitute for government.

For example, in a recent letter to Liberty magazine, Professor Roderick Long of Auburn University sets out to take issue with Bruce Ramsey’s claim that Hernando “de Soto’s work ... shows that a healthy economy crucially depends on property titles, identity records, and other institutions of formal law” and is thus “a standing refutation of libertarian anarchism.”

As Long proceeds in his letter, however, an interesting switch takes place. He contends that “as the research of scholars like Bruce Benson, Tom Bell, and others has shown, history is filled with examples of legal systems that were perfectly formal – complete with official procedures, court records, and the rest – and yet private, competitive, and non-governmental.” He states that “in late medieval Europe ... the commercial law known as the Law Merchant outcompeted the government legal system ....” And then, from this, he jumps to the following conclusion: “Hence the state is not necessary for formal law.”

I don’t know about Bruce Ramsey, but I certainly would not conclude from de Soto’s work that the state is necessary for anything, although I would agree that governments may well be. Because what Long and all those other scholars show, as far as I am able to discern, is that in medieval Europe there were different kinds of governments, some of them coercive and others not.
In my response to Bruce Ramsey I used “state” and “government” interchangeably because that is what Ramsey did in his original letter. According to Ramsey, chaos ensues when “the state absents itself.” He is clearly using “state” as the name for a kind of institution he favours – as do most minarchists. Robert Nozick, after all, defended the “minimal state.” Charles Dunoyer and Frédéric Bastiat used the term “état” for the libertarian political order they advocated. Ayn Rand spoke interchangeably of “the government – the state” and described capitalism as “a limitation on the power of the state.” Ludwig von Mises and Leonard Peikoff both use “state” and “government” interchangeably (and both incidentally describe their favoured agency as holding a monopoly of coercion). While there are exceptions, it is simply a fact that most minarchists would happily describe themselves as favouring the existence of a state (as did I, during my twelve years as a minarchist).
OK, so what’s wrong with this conclusion? I assume critics would now claim that I am twisting the concept “government” to suit my goals, namely, to defend governments as quite possibly a just institution administering, maintaining and protecting bona fide law. I dispute this – I claim that they are wrongly claiming that governments must be unjust and so the concept ought to be abandoned by all right thinking folks. But one way they support this is by equivocating between “government” and “state.”

It is well known that the concept “state,” especially as it figured in the writings of Hegel and Marx, is not the same as “government.” It is, instead, the entire organized community, akin to what Aristotle meant by “polis.” The state does, then, call to mind, quite sensibly, a fully coercive leviathan, a pyramid-shaped, top down system of coercive regimentation of nearly all facets of human community life (apart from those deemed not essential, although even those would be subject to regimentation if the agents of the state so chose).
I don’t think it can possibly be “well known” that state and government differ, since, as we’ve seen, most libertarians – be they minarchists or anarchists – do use the terms equivalently. And so, for the most part, do non-libertarian political therists, particularly in response to Weber’s influence. When the concepts do differ, the difference is fairly slight: government means an institution possessing a coercive territorial monopoly of force, and state means a society governed by such an institution. Most people certainly do not use the terms “state” and “totalitarian state” interchangeably.
Now I am not going to resolve any of the main disputes here but I wish to make just one little final point. To equivocate between “government” and “state” is wrong and even dirty pool. It would be similar dirty pool if those critical of anarcho-libertarians referred to what the latter advocate as “chaos,” recalling not the arguably esoteric conception of anarchy individualist and libertarian anarchists have been developing but the position of those old fashioned, classical anarchists who meant by the term “lawless society.”
If most anarchists called themselves proponents of chaos, it would not be unfair for their critics to call them proponents of chaos too. But most minarchists do call themselves proponents of a state; hence I see nothing unfair about calling minarchists proponents of a state. The use of “state” and “government” as equivalent or near-equivalent terms is not a clever rhetorical device the anarchists cooked up; it is common usage among nearly all parties to this debate. (As for the “old fashioned, classical anarchists,” I don’t think it’s fair to describe most of them as advocates of a “lawless society.” Who does Dr. Machan have in mind?)
Of course, when emotions run high – as they tend to be in discussions among people who are nearly in full agreement and know that they are more likely to be able to land a blow at those in close range than at those who don’t even pay attention to their views – it’s tempting to engage in hyperbole.

Labeling an allegedly “near pure” libertarian opponent a “supporter of the state” or “a statist” does carry a painful sting. One would hope, however, that just this temptation is resisted by serious scholars.
I would not ordinarily call minarchists “statists.” But I would certainly call them “advocates of a state,” because that is what nearly all of them call themselves – and given what nearly everybody means by “state,” that is indeed what they are.
PS: After I have penned the above and informed Dr. Rod Long that I did, he proceeded to pen yet another missive on his blog using the term “state” instead of “government” to characterize what folks such as I support. So, just to be very clear, I do not champion any kind of state whatever but I believe a non-coercive, limited government in the Lockean classical liberal tradition is a good idea.
The post Dr. Machan is referring to was simply my original response to Bruce Ramsey. This was not something new I “penned,” since I had written it months earlier; I posted it as soon as it appeared in Liberty. In that letter I used the term “state” to characterise, not what Dr. Machan supports (for reasons explained above, I remain unsure what exactly he supports), but what Bruce Ramsey supports. And I was surely justified in doing so, because, as I’ve mentioned, Ramsey uses the term “state” himself.

I’m worried at Dr. Machan’s closing remark that he favours a “limited government in the Lockean classical liberal tradition.” That tradition has for the most part favoured an agency that forbids competitors. Locke in particular argues for irrevocable, no-exit contracts of submission to political society. This leaves me wondering once again exactly what sorts of contractual relationships Dr. Machan favours between his “government” and its customers/citizens.

Finally, several readers have asked me why I titled my reply to Dr. Machan “The Great Divorce.” I was thinking of C. S. Lewis’ book The Great Divorce, and particularly of its opening paragraphs.


Machan’s Reply:
I have only a little more time and a few more words to devote to this topic for now. Here it goes.
In your new blog you uses this language: "their favored agency as holding a monopoly of coercion," and also this language: "government means an institution possessing a coercive territorial monopoly of force." An agency that has a monopoly of coercion--or, in my terminology, of force--need not have a coercive monopoly of coercion (or force)--the monopoly may be natural, not coercive. So it is different from the way your second use describes government, "an institution possessing a coercive territorial monopoly." I hold to the former but not the latter characterization of the libertarian conception of government. Whether the crisscross or the homogeneous variety is the best sort is important but that's not about whether libertarianism can embrace government and also fully, consistently reject the use of coercive force (e.g., for banning competition). Government may be involved in disallowing the breach of freely assumed, consensual, constitutional obligations but this is so also with the legal service institutions anarchist libertarians prefer when they forcibly arrest someone who refuses to heed their legally backed edicts--these would fall under the category of "defensive or retaliatory uses of force" as would the disallowing the breach of freely assumed, consensual, constitutional obligations. (Does arresting someone impose specific performance on them? I would think so--they have no option to bolt and just pay up!)
In my view it is best to avoid using "state" to speak of governments within the libertarian framework, however much others may not hold to this idea. I also think that defense agencies, justice agencies, or, to use Block's term, defense-insurance agencies are, by all reasonable assessment, governments of a certain type, namely, limited governments (limited to using defensive and retaliatory force only). Classical liberals such as Locke may have failed to work it out fully that governments may not coercively prohibit emigration, just as you claim, but here we witness perhaps a case of philosophical advance, so that modern libertarians have realized that the use of coercive force is categorically wrong and not even governments may deploy it. (In my view the hint in the liberal tradition of law that this was pretty much anticipated is the importance of due process, namely, governmental conduct that eschews all rights violations.)
Finally, I am not sure what all hinges on dissing the use of "government" when there are so many different types of governments (or even states) in the history of political philosophy and theory. Why is it necessary to insist that "government" must be something unjust, something that necessarily violates individual rights, when we have qualifiers to alert folks that we are talking about governments limited in certain specific ways, in the case of libertarians, limited to using only defensive and retaliatory force? I think it is perfectly evident to most people who think about these issues that when it is a libertarian legal authority--call it government, call it defense-insurance agency, call it whatever--it may not get involved in rights violation, period. So the dispute on whether government can be libertarian or not is, I think, largely moot. But perhaps I missing some of the issues that guide your and other anarcho-libertarians' thinking here. I really think the difference is about the crisscross versus homogeneous jurisdiction, not about anything else.

Thursday, March 18, 2004

'Government' vs. 'State'

by Tibor R. Machan

Concepts such as that of “government,” like those of “democracy,” “law,” “justice,” “freedom” and “love,” to cite just a few, is what W. B. Gallie, called “essentially contestable” (see his "Essentially Contested Concepts", Proceedings of the Aristotelian Society, Vol. 56 [1955-56]). I heard the characterization from Alasdair McIntyre back in the mid-70s at the Creighton Club, the New York State philosophical society, although not applied to “government” but to a slew of other concepts that are constantly being debated.

Of course, from within specific philosophical positions these concepts are pretty firmly defined, so that, say, in classical liberalism “freedom” is usually defined to mean “absence of coercive force” or “not being subject to initiated force” while from within Marxism it’s taken to mean “absence of necessity.”

Within libertarianism, though, the concept “government” is still unstable. Anarcho-libertarians, who argue for something they dub “competing legal systems” “or competing defense organizations,” claim that the concept “government” means, essentially, “a monopoly of legal services over a given territory.” This isn’t as clear cut as one might wish. Are they talking about legally protected monopolies or monopolies plain and simple, which could mean very competitive organizations, indeed—for example, a department store sitting on a large piece of private property that has no competitor right then and there but is amply competed with by stores in the nearby vicinity? Yet where it stands, it’s a monopoly, in a sense. Or an apartment house—it too stands alone and to rent a competitor’s dwellings, one needs to move.

There are libertarians called minarchists, with whom I am usually linked—along with Ayn Rand, John Hospers, the late Robert Nozick and during the last few years of his life, Roy A. Childs, Jr. (although he also penned a famous piece, “The Contradiction in Objectivism,” back in 1968, for Rampart Journal, in which he announced his dissent from Rand’s minarchist position). I disagree that governments may not compete and may coerce anyone. To be fair, neither did Ayn Rand agree that governments may coerce anyone—she, for example, denied that taxation is permissible while also claiming government is, thus disowning the characterization of government by perhaps the most famous anarcho-libertarian, Murray N. Rothbard.

But as Gallie’s point makes clear, this debate as to what is the most sensible, reasonable definition of “government” is likely to continue for a long time, if not indefinitely. In my own view, for example, the institutions anarcho-libertarians support are governments in every important respect—they are administrators, maintainers, and protectors of bona fide law within human communities. What critics claim is that such administration, maintenance and protection do not require contiguous spheres of jurisdiction but could work as a sort of crisscross system.

From a few historical cases, in which such a system had been in place—in ancient Iceland, for example—these disputants conclude that as a general rule governments could operate quite happily, smoothly, with no judicial failures—such as inability to arrest prosecute criminals or to render effective service when citizens (or clients) seek police protection—serving crisscross localities. OK, so this is an interesting debate and worthy of pursuit. Either way we could get to government, however.

My one beef with many who reject this idea is that they refuse to admit that “government” need not involve coercion at all. They could just as easily dispute that the crisscross system involves law, properly understood, only, perhaps, various rules or edicts or policies. And even more problematic is their all to frequent use of the concept “state” as a substitute for government.

For example, in a recent letter to Liberty magazine, Professor Roderick Long of Auburn University sets out to take issue with Bruce Ramsey’s claim that Hernando “de Soto’s work . . . shows that a healthy economy crucially depends on property titles, identity records, and other institutions of formal law” and is thus “a standing refutation of libertarian anarchism.”

As Long proceeds in his letter, however, an interesting switch takes place. He contends that “as the research of scholars like Bruce Benson, Tom Bell, and others has shown, history is filled with examples of legal systems that were perfectly formal—complete with official procedures, court records, and the rest—and yet private, competitive, and non-governmental.” He states that “in late medieval Europe . . . the commercial law known as the Law Merchant outcompeted the government legal system . . . .” And then, from this, he jumps to the following conclusion: “Hence the state is not necessary for formal law.”

I don’t know about Bruce Ramsay, but I certainly would not conclude from de Soto’s work that the state is necessary for anything, although I would agree that governments may well be. Because what Long and all those other scholars show, as far as I am able to discern, is that in medieval Europe there were different kinds of governments, some of them coercive and others not.

OK, so what’s wrong with this conclusion? I assume critics would now claim that I am twisting the concept “government” to suit my goals, namely, to defend governments as quite possibly a just institution administering, maintaining and protecting bona fide law. I dispute this—I claim that they are wrongly claiming that governments must be unjust and so the concept ought to be abandoned by all right thinking folks. But one way they support this is by equivocating between “government” and “state.”

It is well known that the concept “state,” especially as it figured in the writings of Hegel and Marx, is not the same as “government.” It is, instead, the entire organized community, akin to what Aristotle meant by “polis.” The state does, then, call to mind, quite sensibly, a fully coercive leviathan, a pyramid-shaped, top down system of coercive regimentation of nearly all facets of human community life (apart from those deemed not essential, although even those would be subject to regimentation if the agents of the state so chose).

Now I am not going to resolve any of the main disputes here but I wish to make just one little final point. To equivocate between “government” and “state” is wrong and even dirty pool. It would be similar dirty pool if those critical of anarcho-libertarians referred to what the latter advocate as “chaos,” recalling not the arguably esoteric conception of anarchy individualist and libertarian anarchists have been developing but the position of those old fashioned, classical anarchist who meant by the term “lawless society.”

Of course, when emotions run high—as they tend to be in discussions among people who are nearly in full agreement and know that they are more likely to be able to land a blow at those in close range than at those who don’t even pay attention to their views—it’s tempting to engage in hyperbole.

Labeling an allegedly “near pure” libertarian opponent a “supporter of the state” or “a statist” does carry a painful sting. One would hope, however, that just this temptation is resisted by serious scholars.

PS: After I have penned the above and informed Dr. Rod Long that I did, he proceeded to pen yet another missive on his blog using the term "state" instead of "government" to characterize what folks such as I support. So, just to be very clear, I do not champion any kind of state whatever but I believe a non-coercive, limited government in the Lockean classical liberal tradition is a good idea.

Monday, March 15, 2004

This is an exchange between me (Tibor Machan) and Dr. Roderick Long on the iissue of whether libertarianism supports anarchy or minarchy in the sphere of law. I had written a long paper in which I contend that both camps really support the same thing and the only difference between them has to do with whether lawenforcement needs to be done by the same agency within a given region or territory or can there be crisscrossing jurisdictions. Dr. Long's opening salvo is a reply and is followed by my response.
Tibor R. Machan
------------------------------
The Great Divorce

By Roderick Long

As readers of this web journal know, I have long defended the anarchist version of libertarianism against its minarchist critics. Tibor Machan, however, has recently argued (in “Anarchism and Minarchism: A Rapprochement,” Journal des Économistes et des Études Humaines 12, no. 4 (December 2002), pp. 569-588) that the opposition between anarchism and minarchism represents a false dichotomy. Dr. Machan maintains that both “the individualist anarchists and the so-called minarchists – those who support a properly limited government – are right and their differences are only apparent.” In this post I assess Dr. Machan’s arguments.

Dr. Machan’s strategy is to argue that while government does indeed represent a monopoly, just as anarchists claim, it does not represent the sort of monopoly that anarchists justly complain of, and so the general libertarian critique of monopolies does not apply to government.

I have some difficulty determining exactly what sort of monopoly Dr. Machan takes government to be, however. His remarks appears susceptible of three different interpretations. These are:
a) Government’s monopoly rests not on coercion but on consumer preferences. (Call this view Market-Based Monopoly.)
b) Government’s monopoly rests neither on coercion nor on consumer preferences, but on facts of nature outside of anyone’s control. (Call this view Nature-Based Monopoly.)
c) Government’s monopoly does indeed rest on coercion, but the coercion is justified. (Call this view Justice-Based Monopoly.)
Dr. Machan suggests Market-Based Monopoly when he writes as though government is merely a de facto monopoly, existing not by force but by “overwhelming customer support.” (He here draws an analogy with Microsoft, claiming that “Microsoft’s dominance in the software industry is not coercive.” I think this is an unfortunate analogy, since by my lights Microsoft’s dominance does stem in large part from governmental injustice; see François-René Rideau’s analysis in Government and Microsoft: A Libertarian View on Monopolies. But that’s an issue for another day.) Of course if government were that sort of monopoly, no free-market anarchist would have any objection to it. Suppose a single protection agency permitted competitors to enter the field, but any who tried to do so immediately failed because customers voluntarily continued to support the one protection agency. That would be just fine with the anarchists; under Austrian economic theory, competition exists so long as rivals are permitted to enter the market, whether or not they do so.

On the Market-Based Monopoly reading, Dr. Machan favours a protection agency that permits competitors (and so he counts as an anarchist), but he predicts and/or advocates lack of customer interest in such competitors (and so he counts as a minarchist). If that’s his reconciliation of minarchism with anarchism, then I grant that his solution successfully reconciles the two positions – though I would disagree with the prediction and/or advocacy of no-actual-competitors, and so Dr. Machan’s solution would not be one I could personally endorse.

But things are a bit more complicated. For Dr. Machan does not consistently appear to maintain that government’s monopoly will rest on consumer preferences. Sometimes his words suggest the Nature-Based Monopoly Interpretation instead, as when he notes that “it is impossible that during a flight from LA to NY one could enjoy the benefits of both competent service and instant change of the service provider.” Here the idea is that while airline passengers are en route their airline enjoys a temporary monopoly, not because its customers are too contented to switch, but because there is no feasible way of switching. Presumably if there were a feasible way of switching airlines in midflight, then the airline would have no right to hold its customers captive.

Here too the anarchist can agree with Dr. Machan that the situation as described involves no violation of libertarian rights. It is not any decision on the airline’s part, but rather the impossibility of midair competition, that limits the customers’ options. I note, however, that interpreting government as a Nature-Based Monopoly is incompatible with interpreting it as a Market-Based Monopoly. If governmental monopoly is the only possible legal system, then government does not owe its monopoly to consumer preferences – just as the absence of perpetual-motion machines (real ones, not just purported ones) is not due to a lack of consumer interest.

While on the one hand Dr. Machan draws an analogy between government and monopolies that do not rest on coercion (the cases we’ve just been considering), on the other hand he also draws an analogy betweeen government and monopolies that rest on legitimate coercion – Justice-Based Monopoly. For example, Machan notes:
A privately owned apartment house is a de facto monopoly in the same way as any particular ownership constitutes such a monopoly, especially to someone else who wants just that item but cannot have it since it is now owned by another.
Now since there are limits to how many people can physically occupy the same dwelling, a private residence is in part a Nature-Based Monopoly. But only in part. Most buildings can hold more people than they actually hold; a gang of armed thugs could in principle burst their way in Dr. Machan’s home and take up residence there. But he would be justified in using coercive measures to eject these trespassers, because he has a right to defend his monopolistic control over his private property. Coercive monopoly is always justified when what someone is “monopolising” is her own property.

This analogy will not work to defend governmental monopoly, however, since it makes no sense to talk of government legitimately owning the market for protection services. If protection services are legitimate, anyone can legitimately offer them, since all human beings have equal rights; one cannot own a market in legitimate services without owning other people’s labour.

But Dr. Machan offers other reasons for thinking that governmental monopoly rests on justified coercion. He suggests, for example, that it
would be ethical to establish government instead of leaving the task of rights-protection to individuals and businesses that lack the training to protect rights properly, that is, via due process, without violating rights in the process of this protection.
In other words, the idea seems to be that competing protection agencies are likely to violate rights in the course of offering their protection, and so government is justified in prohibiting them. This is essentially Robert Nozick’s argument against anarchy. But forbidding an enterprise to operate because it might violate rights seems to run afoul of the principle “innocent until proven guilty.” (Anarchists argue not merely that governments are likely to violate rights – though they do make this argument inter alia, for familiar informational and incentival reasons – but rather that governments, understood as coercive monopolies, are essentially rights-violating.)

While it is unclear which of the three views on monopoly – Market-Based, Nature-Based, or Justice-Based – Dr. Machan means to defend, all three rest on the claim that jurisdictional competition within the same territory is not feasible. If we read “not feasible” as “impossible” we get the Nature-Based interpretation; if we read “not feasible” as “possible, bur so undesirable as to scare away customers,” we get the Market-Based interpretation; if we read “not feasible” as “possible, but so undesirable as to be unjust,” we get the Justice-Based interpretation.

Dr. Machan seems to be making the Nature-Based feasibility claim in the following passage:
One might put the question another way: Could there be legal service provisions without countries? Could legal service provisions overlap, be delivered to citizens without their having to move and even divided into various parts where some agency offers police service, another prisons, and yet another adjudication?
But of course we know historically that the answer to that question is yes. Surely the existence, and therefore a fortiori the possibility, of competing jurisdictions within the same territory is an established historical fact. (See Tom Bell’s bibliographic essay Polycentric Law, as well as the various links on the Molinari Institute’s anarchist resources page.)

It’s hard to know what to make, then, of Dr. Machan’s claim that govenrment is “a pre-market institution ... required for the maintenance, elaboration and protection of individual, including private property, rights.” In any case, apart from the historical counter-evidence, there is a conceptual error involved in the claim “that market institutions, such as corporations, partnerships, private businesses and even plain, ordinary one shot trade, presuppose a background of some kind of law-enforcement, including protection of property rights and the integrity of contracts.” I’ve analysed that conceptual error in detail in my debate with Robert Bidinotto (see here, here, and here), so I won’t repeat those arguments now. But I think this conceptual error is the most important mistake that opponents of anarchism make, so I urge anyone interested in this issue to consult the links I just gave.

Dr. Machan argues that free-market anarchism is impracticable because
the type of service being provided involves a long term commitment to having one’s rights protected and innumerable activities conducted within the framework of such protection, something that requires on-going mutual access to courts, police services, and so on.

This answer disputes the viability, at least until the availability of transporter type machines familiar from Star Track [sic], of crisscrossing jurisdictions in criminal law, that is, the predominantly Swiss-cheese conception of governments. It is arguable that such a way of providing legal services runs the serious risk of generating in principle irresolvable legal conflicts. For example, a criminal could run off to a more favorable competing court after being convicted by one. Such a prospect would defeat the very point of law, namely, the resolution of a dispute.
Dr. Machan is aware, of course, that there is a standard anarchist answer to this worry: namely, that market incentives would lead competing agencies to set up mutual agreements as to how to handle such cases. To this he responds:
Even if in time the various courts would see the utility of adhering to common standards, at any given time they may well not do so, and this would be an obstacle to justice that is supposed to be swift and efficient for individual citizens.
Certainly competing agencies might not provide adequate justice at all times. But likewise a governmental monopoly, even one that was designed to be a minarchy, might not provide adequate justice at all times. The question then becomes: which one is more likely to go wrong – a justice system that is subject to the discipline of market incentives, or one that is insulated from them? If anything we know about economics is right, the answer is surely the latter.

Dr. Machan is skeptical about the reliability of inter-agency agreements because he is unimpressed by the success of international law:
Different countries hold different standards of justice and reciprocity is often resisted. … And these are only the more visible cases. Thousands of others where international cooperation in criminal adjudication is absent understandably go unnoticed. Those, I think, may be deemed failures of the enterprise of law or at least the model of law as a sort of competitive enterprise.
The point Dr. Machan neglects here, however, is that the examples he points to are failures of successful cooperation between territorial monopolies. If you’re a citizen of Ruritania and you don’t like the way your nation handles international agreements, you can’t switch to a different service provider without physically relocating, which is rarely worth the effort. Hence the government of Ruritania enjoys an effective monopoly, and does its job – including international arbitration – about as well as one would expect a monopoly to do anything.

The example I would point to is the contrast between the way the private Law Merchant system handled international disputes and the way government courts during the same period handled such disputes. Part of the motivation for forming the Law Merchant in the first place was precisely the fact that the governments of different nations had inadequate incentives to standardise and reconcile their legal practices, so the market had to step in.

Dr. Machan complains that anarchists “attempt to reduce all politics to economics” – but surely economics, as a universally valid science of human action, is applicable to the actions of government if it is applicable anywhere. The informational and incentival defects of monopoly do not suddenly vanish when the monopoly concerns legal services.

Dr. Machan does not discuss the information problem that monopolies face. (And note that the information problem applies whether or not the monopoly was achieved legitimately.) As for the incentive problem, Dr. Machan offers the following brief comment:
I dispute that this [= abuse of power] is a necessary feature of public service in any type of political order. It is, of course, typical behavior of public servants in what economists call a “rent seeking” welfare state. However, in a free, libertarian government such servants may well carry out their oath of office to defend the constitution because the constitution does not sanction special interest legislation and regulation.
In other words, Dr. Machan’s solution to the incentive problem, apparently, is to write prohibitions on “special interest legislation and regulation” into the government’s constitution. In light of the history of the United States, this seems optimistic. Who’s going to be in charge of interpreting those constitutional requirements, if not the “public servants” themselves? The way to prevent abuse of power is not to insert more paper prohibitions, but to have a legal system of checks and balances that gives the providers of legal services an incentive to restrain one another’s ambition; and as I’ve argued in my debate with Bidinotto, anarchy is the logical conclusion of the checks-and-balances approach.

I’m not convinced, then, by Dr. Machan’s arguments for the undesirability of an anarchist legal system. Suppose, however, that he turns out to be right, and such a system is indeed undesirable. My question then would be: what kind of undesirability is it? Is it so undesirable as to be unjust? that is, does Dr. Machan think the government should prohibit any attempt to offer legal services comeptitive with its own within the same geographical territory? If he does, he is a minarchist; if he doesn’t, he is an anarchist. There is no “rapprochement”: tertium non datur.

Let me close with a few brief remarks about terminology.

The terms “state” and “government” are used with a variety of meanings; sometimes these terms are treated as synonymous, sometimes not. In Europe the term “government” is often used to mean what Americans call “administration,” namely, not the state apparatus as such, but rather the particular political faction currently in charge of that apparatus. In other contexts “government” does mean the state apparatus, while “state” means a society with such an apparatus. In both cases, however, while government and state are distinct they go together, and both maintain their territorial monopolies by force. And most libertarians, whether they are anarchists or minarchists, use the terms “government” and “state” either synonymously or at least in such a way that government and state are two inseparable sides of one and the same coercively monopolistic phenomenon. Admittedly some libertarian theorists, such as Albert J. Nock, have tried to make “government” the virtue term and “state” the vice term; and Gustave de Molinari, for example, uses “government” in such a way as not to imply monopoly. Such usage is uncommon, however. My own preference has been to lump “government” and “state” together as terms implying coercive monopoly, and to use “law” as the term that doesn’t imply coercive monopoly.

In the end I don’t think too much hangs on these terminological issues, but I mention them because Dr. Machan has definite terminological preferences. He dislikes the term “state” because “usually it means a society conceived as an organic whole.” This may have been true once but I don’t think it’s true any longer; my impression is that most political theorists now use “state” in the Weberian sense, as a territorial monopolist of force, or at least as a territorial monopolist of the authorisation of force. As Dr. Machan points out, this standard definition does not explicitly specify whether the monopoly is coercive or merely de facto; but I think coercive monopoly is what’s generally meant.

Dr. Machan distinguishes between a state, which he takes to be “a human community of a certain type,” and a government, which he takes to be “an institution within such a community.” So far this might sound as though nothing counts as a government unless it occurs in a state, but this seems not to be Dr. Machan’s position, since he advocates government but seems reluctant to advocate the state.

He initially defines government as “a legal service institution the actions or policies of which are backed by allegedly justified physical force and its threat.” Now if that is his definition, then government, so defined, is something to which anarchists have no objection. This definition makes no reference to monopoly, however. But Dr. Machan goes on to claim that “government is only a monopoly, not a coercive monopoly.” I’m not sure whether he means to define government as monopolistic, though not coercively so; or whether he instead wants to leave any reference to monopoly out of the definition of government, but to argue that in practice any successful legal service provider will have to be a (non-coercive) monopoly.

I am left, then, with the following questions about Dr. Machan’s article:
· What is his precise definition of “state”?
· What is his precise definition of “government”?
· Does he think the competitive provision of legal services wihin a single territory is impossible?
· or possible but unjust?
· or possible and just but otherwise undesirable?
· Does he think his ideal minarchic government should or should not attempt to ban any attempt to compete with it (within the same territory)?

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Some initial replies to Dr. Long’s critique of “Anarchism and Minarchism: A Rapprochement”

Tibor R. Machan


These will be brief replies to some of Dr. Roderick Long’s welcome comments on my essay from Journal des Economistes et des Etudes Humaines, Vol. 12, No. 4 (December 2002), pp. 569-588.

This is confusing: "he would be justified in using coercive measures to eject these trespassers..." What it should say is that "he would be justified in using forcible measures to eject these trespassers...." Coercion is by definition the use of force that violates rights, especially within the framework of libertarianism. Force, on the other hand, may or may not.

Along similar lines, then, "justified coercion" is an oxymoron--it means "justified initiated force against another."

Dr. Long says, "In other words, the idea seems to be that competing protection agencies are likely to violate rights in the course of offering their protection, and so government is justified in prohibiting them." That is wrong; he is jumping to conclusions I did not endorse, that government may ban other governments. My point is that a bunch of us have good, ethical reasons for instituting government qua due-process-observing-agency. There is no mention here about banning anything, none at all.
Since however such an agency must have geographical contiguity—which is the nature-based option—so as not to generate routine (though at times in human history temporarily and luckily avoidable) problems of border crossing, such a government as one bunch shall institute will naturally—not only as a matter of consumer preference—involve a sort of monopoly within a given area. But those not liking it can always go next door, just as those who don't like the services offered by, say, the local electrical company can move to the one serving the other neighborhood. (The big difference is that electrical companies do not go around rounding up people called criminals!)

Dr. Long writes, "If we read ’not feasible’ as ‘impossible’ we get the Nature-Based interpretation; if we read ‘not feasible’ as ‘possible, but so undesirable as to scare away customers,’ we get the Market-Based interpretation; if we read ‘not feasible’ as ‘possible, but so undesirable as to be unjust,’ we get the Justice-Based interpretation."

Although there is nothing wrong with having several reasons for supporting a conclusion, I mainly support a nature based than merely market based interpretation. Because, however, of the constraints of this nature based interpretation, the market based one will also apply -- people will prefer that which is possible to that which isn't. The last one doesn't apply because of your misuse of the term "coercion."

Dr. Long writes: "But of course we know historically that the answer to that question is yes. Surely the existence, and therefore a fortiori the possibility, of competing jurisdictions within the same territory is an established historical fact. (See Tom Bell’s bibliographic essay Polycentric Law, as well as the various links on the Molinari Institute’s anarchist resources page.) "

This I take to be the kind of argument that states, "Look here and there in the world criminals turn around and confess their crimes and turn themselves in, so there really is no need for arresting officers in the criminal law system." One swallow--or even a few them--do not a springtime make, to quote a favorite philosopher of both of us!

In other words, some cases of maintaining, administering and protecting law exist that are dispersed over a crisscross region. I call this good fortune—the result of unusually cooperative people who do not have the misfortune of a lot of resistance to the operations of the law. But in most cases this would be unlikely, given the vast difference between people from different religions, cultures, philosophical orientations. That such a smooth operation existed in ancient Ireland and a few other places does not demonstrate that that is what most places would enjoy. Much more reasonable is it to assume that there will be ample recalcitrance and so homogeneity is a more efficient approach to uphold the law than the crisscross alternative.

It is interesting that when Roy A. Childs, Jr., witnessed the debacle of competing governments within the same territory in Afghanistan, he gave up his Rothbardian beliefs. I believe he saw the practical, routine, results of competing legal orders within the same territory.

At the end of his comment Dr. Long puts the following questions to me:
"What is your precise definition of “state”?
"What is your precise definition of “government”?
"Do you think the competitive provision of legal services within a single territory is impossible? or possible but unjust? or possible
and just but otherwise undesirable?
"Do you think his ideal minarchic government should or should not
attempt to ban any attempt to compete with it (within the same
territory)?"

Here are my answers:

Since I do not use the term “state” (and if I ever did in the distant past I meant by it no more than “government”), and since the form of government I consider justified is non-coercive although possibly a natural monopoly by natural (but not logical) necessity, I do not want to respond to this request. Perhaps Dr. Long ought to ask a Marxist and Hegelian, not a libertarian.

Government is the institution in human communities that administers, maintains and protects the legal order. A just government does all this without any coercion (use of rights-violating force). (Like marriage or medicine, the concept of government does not preclude malpractice—in this case, unjust operations. Neither does it require that all governments be unjust.)

I think that, as a rule, competitive provision of legal services within a single territory is impossible on a long term basis, with some exceptions due to very similar people involved in both the provision and the demand for those services. As noted, just because here and there such a system can function, it doesn’t follow that it is a generally functional system. Mostly, when powerful disagreements reign between the citizens of different providers (governments), then crisscrossing services will be unstable, although not for every single instance of adjudication.

No one should attempt to ban any peaceful activity. However, where borders have been voluntarily established, and contracts (constitutions) establish the relationship between provider and recipient, entry past those borders would amount to invasion from outside. Jurisdictional regions may not be intruded upon by those with whom no contract for services are in force.

To put this simply, the optimal situation will be wherein different regions across the globe are served by different governments, all equally committed to maintaining, etc., law non-coercively, with no prohibition for citizens to leave one region and move to another provided all terms of contract have been met. That will involve the kind of competition between governments that a system of liberty requires, without destroying the agency’s capacity to function effectively over a considerable period of time. Which means, we have government, we have stability, we have liberty and we have competition as well.