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.

'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.

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)?

-----------------------------------------------------
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.

Rediscovering the US Constitution

Tibor R. Machan

Professor Randy Barnett’s new book, Restoring the Lost Constitution, The Presumption of Liberty (Princeton University Press, 2004), is excellent and a vital contribution to jurisprudence. It argues, in essence, that the best way to read the US Constitution is as a libertarian legal document, one that presupposes the existence of natural rights and assigns to government the task of their protection, period. Barnett makes out this thesis in a very readable yet completely scholarly fashion, as well as in a tone that is wonderfully civil.

Barnett’s treatment of the relationship between inalienable (or unalienable) and natural rights is, however, somewhat odd and worth considering even if only very briefly. He suggests that whether we are talking about natural or inalienable rights concerns levels of generality. In other words, whereas inalienable rights are taken by Barnett to be the most universal, abstract principles of proper social organization (as per the Declaration of Independence’s reference to them) as well as what constitutions should be based upon ultimately, natural rights are the particular rights inalienable rights imply for everyday living, such as the right to read or turn out one’s nightlight or wear black if that is what one wants to do. And these particular rights, Barnett argues, can be alienated, as when one joins a gated housing community and submits to rules and regulations which disallow one to paint one’s home as one might wish.

Barnett may be making a small but significant mistake about rights theory here. “Natural rights” refers to the fact that some rights are ours because of our human nature – it is thus a qualifier about the source of rights to call them "natural" (and in this it is akin to natural right, a topic Barnett broaches very briefly, a la Leo Strauss & Co., where they are talking about something being right because of human nature; same with natural law, which means something being a law in virtue of human nature).

In contrast, in-(or un-)alienability has to do with the fact that the rights we have (because of our nature) cannot be lost, forfeited, taken away, or otherwise estranged from us unless our nature changes or is lost (i.e., if we were to lose our humanity somehow, as when we become brain dead).

So, it seems to follow that joining a gated community where we need to agree to accept various rules does not involve losing our natural rights. We remain human in all such cases, ergo those rights are still ours. We do however agree not to exercise certain rights – like painting our homes the color we alone choose – but this itself is the result of our having exercised the right to agree to certain terms of association with others, not of the loss or giving up of any rights. Similarly, we have the right to property and this implies to our car but we can sell the car without losing our right to property. We sell the car, not our right to it, and this we can do because we do have the right to sell it.

Barnett’s discussion of consent is also very provocative. He basically dismisses the idea of everyone’s needing to explicitly consent to the constitution, as per the critique of one of his heroes, Lysander Spooner. He holds, instead, that given a certain content of the constitution – such as basic liberty principles that will need to be protected – such universal consent, which at any rate is impossible and would render constitutional law illegitimate from the get go, needs to be given up. Despite this, a liberty based constitution can be fully legitimate, valid, binding on all within its jurisdiction, because no one needs another’s consent to be defended from that other’s aggression or rights violations.

My own account of this – in my paper "Individualism & the Problem of Political Authority,” The Monist, Vol. 66 (1983), pp. 500-516 (now part of Individuals and Their Rights [1989]) – relies on implicit consent theory. That is, by interacting with others who have rights, we implicitly consent to their defending themselves if we attack them, including via a proper liberty based constitution. Thus consent of the governed, while impossible to secure explicitly, can be secured implicitly. (Consider, for example, how a restaurant owner who places ashtrays on tables implicitly but rarely explicitly consents to our smoking there, or how, when you are invited to dinner, implicit in this is the consent to your using the bathroom.)

These are small differences within libertarian theories, perhaps not very consequential and reflective, mainly, of how we all stand up for liberty in slightly different, even idiosyncratic ways.

It is, in any case, extremely gratifying to see Barnett’s – shall we call it revisionist – treatment of the US Constitution (at least its basic form and content, though by no means every one of its provisions) as a liberty-preserving legal instrument. The full resurrection of the Ninth Amendment in the book might make up for decades of neglect of that most important constitutional instrument.

The rule of law –
In classical liberalism & libertarianism

Tibor R. Machan

Classical liberals and libertarians, especially those who admire the works of the famous legal theorists and economist F. A. Hayek, are fond of pointing out that a free society requires the rule of law. Others, critical of this political tradition, note, however, that laws rule most societies, many of them quite tyrannical, so the rule of law has no bearing on a society’s being free.

What might be the source of the close relationship alleged between free societies and the rule of law is that the only laws that can be applied uniformly and universally in society are the very few that aim to keep us free. Other so called laws are really just edicts from rulers, not bona fide laws, since they apply selectively, not equally to us all.

This goes back, in part, to natural law theory which is itself related to the role of laws in the natural world. Laws regulate everything of a certain kind, not just some such things. The laws of motion apply to all things movable; the laws of photosynthesis to all things that can undergo that organic chemical process. And so on and so forth.

The difference is that with natural laws as applied to human beings, laws do not automatically apply but serve as guidelines to choose successful actions and institutions. That is because we humans possess free will and can attempt to circumvent the laws that we ought to follow so as to succeed, live right as human beings. But otherwise these are still laws, only moral, ethical or political laws, not biological, chemical or physiological ones.

Apart from this aspect of laws that guide human conduct, namely, that they regulate voluntary action, such laws, too, need to be universal, applicable to all humans. Only those qualify as bona fide laws that apply universally, to all humans, not just to some based on certain peculiarities of the law maker(s) or those intended to be ruled by the edict(s).

But there are very few laws that really apply to us all – they are the ones mainly concerned with protecting our basic rights. The rule of law is then evident where very few such laws are upheld, where government is, therefore, limited to upholding them. That is what connects the rule of law so closely with the free society.

For example, no one ought to murder, rob, kidnap, or assault another person. These are universal principles of human conduct. They are, to use Kant’s terminology, categorically true for guiding human interaction, anytime, anywhere. However, that seatbelts ought to be worn is not universally true – there can be plenty of circumstances in which that is false. Or again that 40% of one’s earnings ought to be paid to the legal authorities – that, too, lacks universality by a long shot, if it is ever true at all.

So, when such edicts are made into laws, despite the appearance that’s based on pomp and circumstance – being “signed into law,” “entered into law books,” etc. – they fail to amount to bona fide laws. They are bogus laws and will be widely resisted by those who realize this, know that the edicts do not apply to them. These edicts will, thus, violate the principle of the rule of law.

As a result of the proliferation of pseudo laws, all bona fide laws, those that really ought to be obeyed by everyone, tend to lose their credibility. When the legal order treats drug or alcohol prohibition, or affirmative action mandates, along lines it treats the prohibition against murder and rape -- when it equivocates between these two categories of edicts by calling both of them laws -- it is natural for people to begin to see them both as merely conventional, just something those in power happen to wish to prohibit or mandate, not as something that ought to be obeyed.

One virtue of the classical liberal, libertarian idea of law is that it preserves the coherent, even reverent meaning of the concept “law” and does not water it down, thereby weakening its reputation and undermining its binding force.

“But Americans Aren’t Getting the New Jobs”

Tibor R. Machan

For me the hate filled outcry that jobs are leaving the country – however convoluted that concept really is – has always called to mind the fact that many who voice it are also supposed to be humanitarians. I have in mind the likes of Ralph Nader and Dick Gephardt, champions of the downtrodden, enemies of big corporations, you name it. Those on the Left, at least, who worry about jobs are ideologically committed to liberating the workers of the world, not the workers of Detroit or Fresno, USA.

And, indeed, if one is concerned about lack of jobs, it makes little sense to decry that condition only for Americans. Why are Americans so special that they, but people around the globe do not, deserve jobs?

Fact is, the more jobs that get to be exported, the better off the world is becoming, which also means fewer people will wish to come here to find jobs, which has been the routine for about two centuries and which has upset some folks, mostly with the same mindset as the ones who fret about the loss of jobs. Too many immigrants are flooding our shores! Too many aliens are coming here! So, OK, if you don’t like this, making work available abroad should delight you.

There is also something economically amiss with thinking of the creation of jobs abroad as some kind of zero-sum game – as if the folks abroad never bought anything that is made by the folks here. We know that the bulk of the world goes to American movies, for example, buys music made by Americans, buys American made or assembled cars, etc., and so forth.

In fact the very idea of lining up all the American made stuff on one side and the foreign made stuff on the other has become impossible because nearly everything is composed of a bunch of parts that are made all over the place, with no way to tell anymore where and who made them. It is difficult to imagine people going to Wal-Mart or Macys or any other shop to pick up socks, TVs, PCs, shirts, blouses or gloves and making sure that these were made at home.

And if they were made “at home,” suppose they were made in another state – would the customers then be traitors to their own states, counties or cities for buying the stuff not made where they live? Oh, my God, what nonsense!

If there is a sphere of human life that’s in principle truly without borders, it’s commerce. And that has been true of not just centuries but over nearly all of human history. Commerce has, indeed, been mostly responsible for much of the peaceful exploration of the globe, for seeking out new regions where to buy and sell stuff. Very different from conquest!

Even just the thought of trying to restrict the benefits of commerce to any area of it whatsoever galls, since no one can tell what exactly would need to be done – the only wasteful job-creation that would entail is more police and military who would engage in an utterly futile, hopeless effort to keep jobs local.

Often I am eager to seek out the line of reasoning that might have led folks to reach conclusions other than those I reach about things, because I might, miracle of miracles, be wrong and, in any case, I do like to learn of honest differences in viewpoints. But this line of thinking – America first in jobs – disgusts me to no end, considering, especially, that this country perhaps more than any other is filled with people who or whose ancestors were anything but Americans not all that long ago. I find it difficult to fathom, in any kind of dispassionate, charitable way, that thoughtful Americans could think along such lines, begrudging foreigners their chance at a decent life. This kind of “If they get a job, we must lose a job” thinking is so Neanderthal, so out to lunch, especially in this era of modern economic theory – starting not even with Adam Smith but with many before him who knew well and good that in trade all the parties involved are winners – that my little hope that the world might advance a step or two toward reason and peace and justice is nearly shattered and I am very tempted to turn into a misanthrope. Problem with that is that what such absence of reason, peace and justice hurts most is millions and millions of human beings, the very ones who often do such thick headed non-thinking.

Alas, I suppose one needs to just push on and rebuff this stuff day in and out.

Misguided Honor for Politicians

Tibor R. Machan

When my son was in elementary school, once they had some kind of special event, celebrating the achievements of various students – I can’t recall just what the festivities were all about. What I do recall vividly is that the principal had invited a local politician to head up the feast, to make a key note address, some kind of inspirational speech for the kids.
Not being one who stands idly by when rank malfeasance is rife around me, I went home after the event and wrote to the principal protesting the invitation of the politician I noted that it would have been far more appropriate and useful for the students had she invited a local artist, engineer, merchant or scientist to make the address. I wrote, “What is the reason you selected a politician to stand before your students? Do you believe politicians these days are the best role model for encouraging young people to succeed in life? Please reconsider this belief – politicians are leaches, mostly, and our kids need productive role models.” Or something along these lines.
Needless to say, my letter was ignored, although at least my child didn’t seem to have suffered any averse repercussions.
I was reminded of this episode when I was watching my favorite television program the other night, Law & Order. This show always begins with the discovery or commission of a crime, followed by the detectives figuring out who is the most likely suspect and then the assistant DA and staff going about mounting the prosecution. In this episode someone had shot up City Council in New York City, killing and injuring two politicians. When the detectives come to the scene of the crime, they see one member of council dead and ask whether the injured victim, by now taken off to the hospital, is also member of council. In response the investigating officer says, “No, thank God, it was some civilian,” or words to that effect.
OK, perhaps this isn’t much to get bent out of shape about but my tentacles are very, very sensitive and I noticed how the writers snuck in this odd tip of the hat to politicians, suggesting that it is much worse to have injured such an individual than a “mere” civilian.
There is an interesting, even challenging issue afoot here, actually. In a society in which public officials are involved in the honorable task of securing the rights of citizens, they are a bit like good soldiers, standing guard against criminals and others who would undermine civil society. That is perhaps one reason why even after the sorry record of governments throughout history, there is still some kind of honor attached to the term “statesman.”
The idea is that some folks in law enforcement and administration may actually be performing a noble task, standing up to defend the citizenry against barbarians, those who would wreak havoc against peace and justice. That is one reason many people have a certain degree of native respect for police officers and soldiers, especially in a relatively free society, or for the sheriff in the so called Wild West. That is why in the famous movie, The Man Who Shot Liberty Valance, Jimmy Stewart’s character, the man who brings law and order to Western town, is taken to be a hero, along with the character played by John Wayne, a decent but very tough ruffian who fights the evil bloke, a robber and murderer, played by Lee Marvin. In the idealized American context, champions of law and order are seen as good guys, unlike, say, in Nazi Germany or the Soviet Union – and, if one is realistic about it, in much of contemporary America.
Sadly, in the country that America is today – or may in fact have always been when we take a closer look – it is entirely gratuitous to cast politicians and bureaucrats as heroes. Members of council, especially in major cities such as New York, Chicago, Los Angeles and San Francisco, are as a rule undeserving of special respect. They do not hold honorable professions. They are, essentially, power brokers and wielders, not professionals standing up for peace and justice. Therefore their deaths or injuries at the hands of criminals certainly don’t deserve special lament, as against the deaths or injuries of ordinary citizens.
The writers of this Law & Order episode ought to get real – people in politics today don’t merit special consideration, even in fiction, let alone in real life.

Gay Marriage Hysteria

Tibor R. Machan

After the Massachusetts Supreme Court legally validated the idea of a gay marriage for that state – but as a matter of Constitutional law, for any state in the USA – conservatives like Rush Limbaugh had a conniption fit.
First there came to feigned shock – reminiscent of Claude Rains in Casablanca vis-à-vis gambling going on at Rick’s – with the court’s making law. As if this were the first time that happened and, more importantly, as if conservative justices didn’t indulge in judicial activism big time, whenever they get the chance. (For my money it is high time some of them do a bit more judicial activism in some areas, such as restoring the right to private property to its proper position in Constitutional law!)
Next we see all the hand wringing about the tearing apart of our country’s moral fabric – as if what really troubled our society has anything at all to do with a bunch of gay unions gaining the designation “marriage.” Preventing that will surely stop people cheating on their test at Annapolis or harassing female cadets at the Air Force Academy, defrauding their employees at various big corporations, faking news reports at major papers and magazines! Yes, stopping gay folks from marrying will be the ticket to moral rejuvenation for sure. How gullible can folks get.
There is just no reason for the fuss. To start with, the tradition of freedom of speech should inform us that we are all free to call our unions by whatever word we choose, however this may ultimately square with good sense. Related to this is also the peculiar idea, which is due for serious challenge, that the government somehow is in the business of determining what a marriage is all about. This is hokum – state bureaucrats, even judges, have no special expertise about this at all. Marriage is an age old institution that will either survive intact because it’s a good idea, or it will bite the dust because there is something strange about it – maybe because we now live much longer than when it was invented, or perhaps because with the rise of individualism and pluralism, let alone multiculturalism, the one-size-fits-all approach to how human beings should work out their romantic plans is obsolete.
Yes, of course, in line with traditional Christianity marriages are made in heaven. But does anyone really know this? Has anyone been there to check it out? At most the idea is revered based on faith and as such in a free country it is wrong for the legal authorities to impose it on everyone. Indeed, it is interesting how easily the fundamentalist case against gay sex falls apart on the very biblical grounds on which it is supposed to rest. As one friend of mine has noted in a recent missive of his, is it not odd that the Bible says not a thing about lesbian unions? And if it doesn’t shouldn’t fundamentalists confine their worries to gay male sex alone? And doesn’t such a Biblical doctrine then come off as arbitrary and capricious? It sure does.
It always amazes me how Left and Right tend to unite on some basic fronts without even being aware they are doing it. The Left wants desperately to control how we deal with the economic aspects of our lives – they love to extort money from everyone so they alone can then determine how it is used. They hate the right to private property because it stands as an obstacle to this imperial goal. The spirit of the American legal system is, after all, capitalist, despite what Justice Oliver Wendell Holmes, Jr., maintained, unfortunately very influentially, in his dissenting opinion in Lochner v. New York (1905). Yes, the conservatives are eager to get some judicial activists on the courts to reverse the Holmesian influence, and in this case for very good reasons. But this kind of activism the Left hates, which is why liberal Democrats in Congress have been so vehemently opposed to George W. Bush’s nomination of Janice Brown (currently Chief Justice of the California Supreme Court) to the United States Court of Appeals, District of Columbia Circuit, because of her opinions involving, e. g., property rights and parental authority.
But the Right is also itching to control us on numerous fronts and using the law as their weapon. They want to call the shots when it comes to how we think, what we believe, whom we worship, what religious edicts we declare official – as well as with whom and how we associate and what we call these associations. So, they hate it when those on the Left are making use of certain provisions of the U.S. Constitution, such as the Ninth Amendment, so as to identify basic principles such as the right to privacy, a right that if protected pretty much shuts the state out of deciding the various voluntary unions among people that may occur and whether they may be called “marriage.”
At the heart of all the frantic nauseating blabber about gay marriage is the desire to control people, to refuse to let them be, as if something truly insidious were to be unleashed by not invalidating their unions. Nothing is at stake in this prohibitionist effort other than the blatant prejudice of people on the Right against those who do not share their view of who may bond with whom. Sorry Limbaugh & Co., this is still America, not Iran.

Socialism, Bush Style

Tibor R. Machan

Compassionate conservatism always was a fraud but just how straightforward a fraud it is can be seen from recent statements from Bush Administration officials.
Why was it a fraud to start with? Because government cannot – yes, literally, cannot – be compassionate toward people with other people’s money. You, I, our friends and neighbors can be compassionate, in the sense that we can consider some people’s misfortune, even bad choices, and reach out to them with our help, be this money or some service we could offer. That’s compassion. But when we see such misfortune and go out to rob a neighbor and hand over the loot to those in need, that isn’t compassion, conservative, liberal or any other kind! It is criminal – maybe we ought to dub it “criminal ‘compassion’”!
In recent days the Bush Administration has been making plans to spend other people’s hard earned – or what if simply luckily obtained – money on, as Wade F. Horn, Ph.D., Assistant Secretary, Administration of Children and Families (Department of Health and Human Service), refers to it in a letter to my local newspaper, “to support couples in their desire to form and sustain healthy marriages.” Some people around the country have criticized this measure as yet another robbing-Peter-to-pay-Paul scheme that is plainly immoral. In this instance, however, we have the good fortune of Dr. Horn telling us why the Bush Administration believes in this program.
He tells us first that troubled couples, and their children, can very well benefit from receiving professional help from counselors. This is true enough, although he gives no evidence for it. Still, perhaps that is simply common sense – if professionals really know their stuff, they can give some helpful advice. Of course, it is still up to those getting the advice to apply it, and there is no guarantee for that. So, despite such help, people may still mess up their lives.
But let that go. Dr. Horn adds that people who lack sufficient funds may not be able to obtain the help the need from professionals. True enough – another reason that many people should wait with getting hitched and, especially, with producing children. One has the responsibility to prepare for such things, including economically. If you cannot afford to bring in professional help when you need it, you should wait until you can afford it or do without.
But then Dr. Horn goes on to line up the Bush Administration with out and out socialism. He tells us, “Don’t low-income couples deserve the same chance to build and sustain healthy marriages as more affluent ones?” So, government must provide, no?
This is a devious question. “Deserve” can mean this: “Would it not be something valuable to them to have such help?” Yes, it would. But it doesn’t follow from that that other people may be coerced to provide the help to them. There are zillions of things that would be valuable for people they just cannot afford and in order to get these things they are not justified to rob others.
But perhaps “deserve” means, “Should these folks not be receiving help from others?” Well, here the answer isn’t that easy. Some might – if they did everything reasonable to gain the funds themselves and lost it, say, in an earthquake. But say they lost it gambling? Or overspending? Or they never earned enough to start with but decided to get married and have children anyway? Do they deserve the help? Perhaps, in rare case, but generally not. And what about their children? Their lot, first of all, is the fault of the parents, not the taxpayers of the USA. And there are charitable organizations to turn to for help to children. Unless special considerations apply, leave the parents fend for themselves – they made their rickety marriage bed, now they must lie in it.
Of course, even when they do deserve help, it is not from government they deserve it, but from friends and relatives and voluntary agencies established to provide such help with the support of those who give of their own free will. That is being compassionate, not what the Bush folks and Dr. Horn propose, which is phony compassion and criminal, to boot.
More generally, there are inequalities all over the world, as well as at home, that simply may not be erased by force of arms. I am less handsome than Robert Redford – but don’t I deserve a happy love life, too? Alas, if I am unable to attract the ladies as Robert does, shouldn’t the government make sure this imbalance is fixed? No. What about vacations or schools to which our kids go – the better off can afford those while the less well off cannot. Is it the role of government to even all this out?
No, not any more than it is the role of the referees at athletic contest to make sure everyone comes in at the finish line together, or that no team ever beats another.
Law enforcement agencies exist to make sure we do things peacefully, without trampling on each other’s rights, not so as to try to make sure everything turns out to everyone’s full satisfaction. The resulting all powerful state will soon manage not to satisfy anyone at all -- just recall what happened in the good old Soviet Union.

A Libertarian Quarrel

Tibor R. Machan

Within the USA there has always been a relatively strong libertarian voice, in contrast to most other countries. And within the libertarian movement two strands have quarreled in a civil but not altogether gentle tone.
I have in mind the argument between those who believe in limited government – usually called minarchists – versus those who want to government at all – called anarchists. (This last, however, does not, akin to classical anarchists, reject all laws and their enforcement.)
Before discussing these two positions, it will help to place libertarianism in perspective. Throughout human intellectual history there have always been a few voices raised against statism, the belief that in human communities sovereignty rests with the government. This is embraced in monarchy, socialism, fascism, communism, and theocracies. Government is seen either as God-on-earth or the-will-of-the-people (as a whole). In all these statist outlooks the individual members of society are taken to be subservient, lowly beings, or simply cells in the body of the society, which is the locus of value.
Now and then statist views have been challenged but since power has been concentrated in the state, they rarely got sufficient airing. When government owns the presses, forums of discussion such as universities, or parks where speeches may be given, it is no wonder those who support one or another version of the powerful state stand in the limelight, with the few opposite voices basically marginalized if not killed off outright.
After a while, though, governments proved to be so corrupt, so unruly, and so capricious that too many folks began to see it as a threat and the ruse that it is. The lie that it’s God’s representative on earth or it expresses the will of the people just could not be made believable enough to suppress all the opposition. The power of monarchs – tsars, pharaohs, and such – began to be questioned and in time contained. The idea that royals aren’t anything special, after all – that all the self-important ministers and their favored nobility were just pretending to be endowed with special rights (divine rights, it used to be called) – began to catch on.
Eventually, certain thinkers who studied these heretical thoughts developed solid arguments and got published somehow and the notion of the sovereignty of human individuals, as opposed to states, became palatable enough to inspire influential and clever people to translate them into law and public policy. The American Founders were the most successful of these people, managing to declare to the world that it is individual human beings who have unalienable rights to their lives, to their liberties and to the pursuit of their happiness. However much or little they succeeded in curtailing the powers of the state, the idea that this may well be a good idea could no longer be kept out of circulation.
Unfortunately, bad habits are difficult to shed, so the actual legal order they forged didn’t fully recognize and protect unalienable individual human rights. And many elements of the old system were kept intact, such as taxation, conscription, secondary citizenship for various groups, and so even slavery. But the cat was out of the bag, intellectually – as Abe Lincoln somewhat duplicitiously put it, “No man is good enough to govern another man without that other's consent.”
The result was the eventual development of the libertarian alternative to all varieties of statism. This development, however, didn’t resolve one of the questions that has always been on the minds of political thinkers, namely, whether government of any type is evil, a criminal organization disguised as something necessary for society or the germ of legitimacy to the institution, only it has been twisted by power hungry rulers and their apologists to serve corrupt ends.
Libertarians, unlike old line anarchist, recognize the value of law and even law enforcement. What some of them argued is that any law enforcement agency must itself be deprived of its monopoly status, be competitive, so it is subject to a repeated cleansing process. Just like other things people want or need, law, too, must be possible to be offered by many agents who can provide it.
Those libertarians who think government has merit, provided it is kept within proper bounds, disagree with this but only to a relatively minor degree. They think that in some ways law enforcement will always be monopolistic, but not different from, say, how an apartment house or department store is monopolistic – namely, only one can exist in one geographical spot. If you want to get to a competing agency, you need to move there.
Most libertarians do not see this as a deal-breaking dispute. They are mainly concerned with the central point: Who is to rule our lives? Is it to be individuals, within their own delimited sphere, wherein no one may enter who hasn’t obtained permission, where no governing may occur unless consent of the governed has been given? Or is it to be some self-selected persons or groups, people who either rule others on their own initiative or who claim to speak for everyone and impose their (majority, minority) plans on all, never mind consent.
The libertarian alternative is still marginalized. This is perhaps analogous to how the idea of equal standing under the law for women is marginalized across the globe. Both of these ideas, of course, deserve a serious hearing and, as best as I can tell, ultimate success.

Self and Inconsistency

Tibor R. Machan

Many more years ago than I like to admit I read a wonderful little book, Prescott Lecky’s Self-Consistency: A Theory of Personality (New York: Island Press, 1945). (I note, happily, its having been reissued in 1994.) This work argued, in essence, that human beings seek, for the most part, to hold beliefs and carry out actions that are all mutually consistent. There is supposed to be a psychological reward for doing so – and that seems pretty much common sense. We often take pride in being consistent, in not contradicting ourselves.

Moreover, whenever we are discussing ideas or the larger issue of how we live our lives, it seems clear enough that we insist on consistency. Certainly in an election year we can see how journalists try to hold the feet of politicians to the standard of consistency. If they fail this test, they are open to all kinds of charges – having lied, lacking integrity, and so forth. And if witnesses at a trial contradict themselves, all their credibility has been lost!

In short, there is this idea that not only must things make sense to us, come off coherently, otherwise there is something amiss, but we ourselves need to make sense in what we believe. That is, basically, the point of Lecky’s little treatise: a healthy personality is one that’s integrated, has it all together, as opposed to being in constant conflict and out of kilter.

Yet, of course, this standard is one to which few of us manage to live up. And an example stares me right here in the face – I detest ending sentences in prepositions, yet that one, right before this one, does just that and is exactly right for it. What a drag! But this is perhaps a minor inconsistency. What is much worse is the major inconsistencies that people allow within their lives.

Take the people living in Newport Beach, California, about 30 miles south of where I do. John Wayne Airport is located there and the city’s officials, backed by many citizens, have enacted an ordinance that prohibits planes from taking off and landing before 7 AM and after 10 PM. Moreover, every plane that takes off has to proceed like one of those Blue Angel F/A-18 Hornets does, shoot nearly straight up so as to spare the dear Newport Beach residents the trouble of having to hear it climb slowly into the sky. (The pilot makes an announcement of this on nearly every flight, just so as not to scare the passengers to death when his machine immediately turns upward at about a 45 degree angle.)

Now the fact that the citizens of Newport Beach, California, benefit a great deal from the flying done by all the people who use this airport – all those folks traveling to conferences, business meetings and other venues at which many of the affairs that benefit these residents are conducted – doesn’t seem to occur to them at all. They do not even consider the inconvenience they produce for these folks who are probably actively engaged, day in and day out, in serving them all in various capacities – doctors, dentists, CPAs, engineers, professors, actors, athletes and the rest. Never mind that – we just need some quiet in the air in our town, even though the noise that we suppress would be made by the folks who do us a world of good. and it isn't a big deal at any rate. (They should live in Manhattan, next to a fire station!)

This same kind of thing happens when drivers of cars express their anger at drivers of eighteen wheeler trucks, most of which are carrying wares the drivers of the small vehicles depend upon and use constantly. Damn it, why are those big things out there? Or, why do these trains going by make so much noise? Why don’t they all go away and leave us in peace?

Never mind that if all these nuisances disappeared, the dear residents and all those annoyed drivers wouldn’t have hardly any of the goodies and services they dearly love to have around. Do they think about how all those grocery stores get filled up with fruits, vegetables, milk, meat and the rest? Without those trucks and trains they would never get there. Nor would much of the business, entertainment, and whatever else comprises the neighborhood culture exist if the airport were to shut down.

It is these little inconsistencies that I find fascinating, since the people who hold onto them aren’t dumb. They just want to both have their cakes and eat them, too, hoping they can get away with that. Many of them hate developments but they love the people living in the homes that developers build – and they beef, too, a lot about escalating home prices! They do not want anyone to come live in their canyons but they wouldn’t themselves move out in a million years. They cherish all creatures, great and small, accept they have no problem living in their homes which have displaced and keep away zillions of creatures from the spot of ground where the home was built and now stands.

What Professor Lecky said about people wishing to be self-consistent is, sadly, just part of the story. They also often want to have it all ways, however inconsistent that may be – like the politicians who criticize their opponents for lack of integrity but then turn around and champion flexibility and pragmatism – that is, abandonment of integrity, the embrace of compromise – in how public policies should be shaped!

Arguments versus Fallacies

Tibor R. Machan

In nearly all colleges and universities today courses are taught in basic reasoning, introductory logic, and clear thinking, courses most undergraduates are required to take. Some of these actually prepare students to move on to upper division logic courses and seminars, where they are taught formal reasoning, complicated proofs and various rather technical symbolic machinations use mainly in advanced scientific research. But in the bulk of such courses they are simply supposed to learn how to argue a point, the relationship between premises and conclusions and the method by which to insure that the latter actually follow from the former and aren’t simply asserted without support.

There are also many informal fallacies that are discussed in these courses, ones that are a definite no-no when it comes to discussing issues rationally, with the aim of getting things right. Among these informal fallacies appeals to emotions, argument by authority, reliance on popularity, pleading one’s case (which is to say, never looking at contrary evidence), the genetic fallacy (which means, considering where someone comes from who argues a point), begging the question (that is, assuming a conclusion before one has argued for it) and ad hominems (attacking the person) are the most widely studied.

The idea is that whatever topic is worth considering or trying to understand, there will be no headway to that end by indulging in such fallacious thinking. One should abandon all such phony methods and try to reason things out, debate issues based on getting the premises right and then arguing from those premises in a reasonable fashion, by means of valid, logical steps.

Of course, it would be too much to expect students to always follow the principles of good argumentation taught to them in colleges and universities. They will be tempted often, and yield to those temptations, to resort to the fallacious methods because, in part, those methods are a kind of short cut and offer quick fixes as opposed to requiring one to do hard work. So, if I can just invoke some famous person who impresses my audience in support of what I believe, why bother to make the case, which would take study and careful reasoning? Or if the popularity of my views clinches my point with gullible people, again, why bother doing the hard and often tedious work of laying out a serious argument? Or, if I can smear someone’s reputation with whom I disagree, I may win against the adversary without any further effort.

Political electioneering and debates about public policy are perhaps the context that most often tempt people to argue fallaciously, although they find themselves used in personal disputes as well. Candidates are bent on disparaging the character of those they want to unseat or those who challenge them, spread the idea that they are liars, cheats, lack integrity, are bought off, and so forth. This promises that they will never really have to argue their case competently, with the facts laid out as they understand them and the case made by way of valid reasoning. And so no one can actually test how good a case they have for their ideas and policies.

The fallacy of ad hominems is resorted to by countless people in these contests, even ones who could often make their case stick quite rationally. Another approach favored in political races and public policy debates, one that also violates the standards of rational argumentation, is to question an opponent’s motives. It is claimed that they aren’t interested in a good solution to problems but merely try to serve backers such as big corporations, agribusiness, labor unions, the educational lobby or whatever. Here, too, the focus isn’t on whether the policy being proposed is a sound one but rather on something entirely irrelevant. For, clearly, even if a candidate is getting backing from some group, that’s not what matters. Is the policy recommendation good, that’s what counts.

For my money, I simply assume that those who support views and policies I find wrong actually believe that those views and policies are sound ones. They are wrong, I am convinced. And my job, if I care to get involved in the discussion, is to show they are wrong – not that my view is more popular, that they are crooks, or that their motives are suspect. None of that matters, really, except if it’s been shown, already, that they are wrong and then one might wish to learn why they are wrong. But whether they are or are not wrong about any of their ideas or policies has absolutely nothing to do with such fallacious charges.

Sadly, a lot of people with whom I agree rely upon these kinds of methods of attacking their opponents. I am chagrined about being in their company, actually, because it tends to discredit the sound views we share. If people resort to fallacious reasoning in support of a view that is solid, that solidity is implicitly called into question. For example, the real issue is, was war with Iraq justified, not whether Bush lied or was misled or whatever. The real issue is whether gay marriages may exist in a free society, not whether gays are trying to corrupt the young. The real issue is whether prescription drugs ought to be funded by the federal government, not whether big drug firms like this or not.

Why won’t people stick to topic? Go figure.