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.