Chapter 6. Is the state legitimate?

Here are the topics in this chapter after this introductory section: Most of political philosophy so far has consisted of various top-down (aristocratic) theories of government or bottom-up (democratic) theories of government. Plato, Aristotle, Aquinas, Hobbes, Locke, Rousseau, and Kant, to name a few of the most important political and moral philosophers, all assumed that the state is necessary and proceeded from that assumption to develop their respective political theories.

The relatively small amount of anarchist literature differs from the rest of political philosophy in that it does not take for granted that the state is necessary or justifiable. Anarchists are the only ones who seriously question whether some moral agents should govern others.

The moral justification of the state is one of the fundamental issues in political philosophy. If it turns out that no state can be morally justified, then it is pointless to discuss such issues as the federal budget or how Supreme Court should interpret the U.S. Constitution. And, if all taxation is theft, it is a waste of time to debate whether a sales tax is more fair than an income tax. If the state is inherently unjust, then most of the work done by political philosophers is of no use to us as moral agents.

Political philosophy and justice both have to do with the role of brute force in society. Our theory of justice allows us to determine when it is legitimate to use brute force. Our political philosophy defines the role of the state, which is an organization that exercises brute force. For a political philosophy to be morally justified, it must rest on a logically antecedent theory of justice.

I have shown (in Chapter 4) that the right to self-defense, the right to be free from invasion, and the right to do anything peaceful are basic rights. I have also explained (in Chapter 5) how rights to private property can be legitimately acquired and lost. The way to respect these rights is to use brute force only in defense against rights violators and to act on a mutually voluntary basis with everyone else. Political philosophy must be consistent with these principles to be morally legitimate.

Before we can begin to assess its moral justification, we need a working definition of the state. The state is a man-made institution. It was deliberately created to achieve particular ends. To define it further, I shall consider the historical ends served by the state and the historical means employed by the state to achieve its ends.

The specific ends sought by those who have created the state and some of the methods they have employed have varied from country to country and have changed over time. This makes its hard to construct a universally applicable definition of the state in terms of its ends and means. Nevertheless, it is worthwhile to define the state as accurately as possible, so that I can be clear about what it is and whether it is justifiable.

What ends does the state serve?

To get a better idea of what the state is, I will begin by examining the most common services that the state provides to see which of them, if any, are essential to the definition of the state.

Military Services

One of the things we associate with the state is war. The armed forces of a country are usually a major part of the state's apparatus. The state provide offensive and defensive services. It invades foreign lands, and it defends the country from foreign invaders. By invading foreign lands, the armed forces may provide economic advantages such as a more stable climate for investments; new markets for exports; the capture of valuable raw materials, loot, and slaves; the reduction of domestic unemployment; and even the improvement of the economic system of the conquered country. Invading a foreign country may also achieve such noneconomic goals as converting the foreigners to the true faith, destroying their evil culture or race, destroying their tyrannical government, and distracting the home population from domestic problems and political scandals.

Some of these ends are clearly unjust. Others are not obviously so, but might be found to be wrong after further investigation. I will say more about war later. The question here is whether the provision of military services is essential to the definition of the state.

Although these services are usually provided by the state, and although most states provide some of these services, it is conceivable that a state (perhaps in a geographically isolated part of the world) would have no reason to provide these services. Consequently, I shall not include the provision of military services in my definition of the state. It should be easier to justify the state if we do not include war-making as one of its defining characteristics.

Police, Judicial, and Penal Services

Police services rendered by the state include every kind of law enforcement from protection of life and property to using torture to obtain confessions. It is hard to imagine a state that provides no police services. Some states allow private guards, private watchmen, and private investigators to provide some of these services, but they regulate these professions and force them to obey its rules.

Judicial and penal services are closely related to police services. After the police apprehend a suspected law breaker, they usually turn him over to the judicial system and then, in some cases, to the penal system. The judicial services provided by the state may include arbitration of disputes, subpoenaing witnesses, empaneling juries, establishing rules of testimony, interpreting the laws, determining a defendant's guilt or innocence, and assessing restitution and punishment. The state's penal "services" may include fines, imprisonment, corporal punishment, and various kinds of execution.

Police, judicial, and penal services are now provided by all states. Less civilized states may allow a single individual to be policeman, judge, and executioner. More civilized states separate these services and dignify them with elaborate protocols, civil rights, pomp, and ceremony.

If we read only the political philosophers, we would think that defining and administering laws has always been a function of the state. In fact, we would think that providing these services was a primary reason for the creation of the state. However, if we look into the history of law, we find, surprisingly, that systems of law were developed and administered privately long before it ever occurred to the state to become involved in this business.

I had included police, judicial, and penal services in my definition of the state until I found out that in England, for hundreds of years, the monarchy coexisted with private law and had no interest in the law. The international Law Merchant and English common law, upon which American law is based, were originally developed and administered privately.

When the English government got involved in the legal system, late in the Anglo-Saxon era, it was not because the private legal system wasn't working. It was because the king realized he could raise money through the king's court. In England, the state's involvement in the law business started late and on a small scale, but after a few hundred years the state began to dominate the industry.

In 1729, the British government got into the criminal investigation and prosecution business, which until then had been private.1

The government added authoritarian criminal law to the privately established civil law and changed the customary emphasis on restitution into a system of punishments that included fines, imprisonment, mutilation, execution, and transportation of felons to distant colonies. In 1829, the London police department was established, and by 1856 police departments were established in every county.2

We should not accept a definition of the state that is contrary to history. Therefore, because the British state existed as a war-making and taxing organization while law-making and law enforcement remained private enterprises, we should not include the services of law-making and law enforcement in our definition of the state. This, of course, undermines one of the favorite assumptions of political philosophers and makes their job of justifying the state nontrivial, if not impossible.

Legislative Services

Legislative services include enacting laws to regulate behavior within the country by prohibiting some activities, setting limits on others, and making still others mandatory. Legislative services also include enacting laws to define the budgets, authorities, and rules for the various departments of the government.

Undoubtedly, the desire to legislate morality is a strong motive for establishing and controlling the state. However, the state can remain neutral with regard to particular moral codes. The Roman Empire, for example, was somewhat flexible in allowing conquered groups to enforce their own cultural and religious rules. Similarly, the federal government of the United States, while not neutral about all moral issues, allows its subordinate state and local governments to enforce a variety of rules regarding moral behavior and a variety of laws defining the procedures, organization, and budgets of the inferior state and local governments.

A purely tyrannical state could function without a legislature. Its actions might be unpredictable and chaotic, but it would still be a state. Consequently, a formal legislative branch and its legislative services are not essential to the definition of the state.

Whether they have elected legislative bodies or not, all states use their power to command their subjects to behave in certain ways. This might not be regarded by all the subjects as a service, but it must be regarded as a service to the rulers. So, one of the ends of the state is to allow rulers to rule.

Control of Economic Activity

Some states try to regulate or control all the economic activity within the country. Other states intervene in relatively few business affairs and allow the free market to coordinate most economic activity. Almost all states nowadays maintain a monopoly on the minting of money, but this was not always true, so we cannot assume this is a defining characteristic of the state.

Redistribution of Wealth

Most states have a deliberate policy of redistributing wealth among their subjects in order to achieve a different distribution than would have prevailed through free exchange. Such policies are often supported by an egalitarian theory of justice or by a theory that everyone is entitled to at least a certain minimum standard of living. Other states of a more aristocratic nature redistribute wealth so that the upper class has more than they would otherwise have. Such a policy may be defended by saying that the upper class is more worthy or would use the wealth more wisely. Modern social democracies and socialist states have official policies of redistributing wealth from the working class to the needy and unofficial practices of redistributing wealth to those who have political connections.

It is not necessary for the state to have any particular policy or practice of wealth redistribution as an end in itself. Virtually all states extract wealth from some of their subjects and give it to others, but this can be thought of as a means to pay for government services rather than as an end in itself. Consequently, redistribution of wealth need not be included in defining the purpose of the state.

Other Services

The state has provided many other services at different times and in different places. Among these are mail delivery, public education, mobilizing disaster relief, and building highways, canals, aqueducts, dams, monuments, parks, pyramids, and spaceships. Not one of these services is essential to the definition of the state.

Summary of Services Essential to the State

Military services, legislative services, economic services, and other miscellaneous services frequently associated with the state are not essential to the idea of the state. Even police, judicial, and penal services are not essential to the definition of the state. It turns out that no particular service is essential to the definition of the state. The people who create and control the state, being conscious and purposeful, must have motives for doing what they do. But there are no predefined motives that they must have. Different states were created by different individuals, perhaps, for different reasons. All we can say about the services provided by the state is that they are services desired by those who create and control that state. The motives of the rulers can be self-serving or altruistic or religious or ideological or any combination of these or other motives. The state can be established to enrich and build monuments to the rulers or it can be established for the glory of God or to impose a particular ideology or to provide for the common defense or to build public works or to provide law and order or to provide "ethnic cleansing" or for many other reasons. The only end common to all states is: to allow the rulers to rule.

To accurately define the state, we must distinguish between the way the state operates and the way private individuals and private organizations operate. We must define the state in terms of its means rather than any specific ends.

What means does the state use?

What distinguishes the way the state operates from the way other enterprises operate? To answer this question we must compare the state with private enterprise with respect to how they finance their operations, how they cope with competition, and how their agents treat people.

State versus Private Financing

States have used a variety of methods to finance their operations. Some of these methods such as lotteries, borrowing, and charging fees to willing customers are available to private organizations. However, the primary method of state financing is taxation. Taxation differs from free-market pricing in that taxes are imposed upon taxpayers by brute force, whether they approve of the state's activities or not. If private individuals or organizations collected money in this manner without a special grant of privilege from the state, they would be regarded as thieves. Is there something about the state that makes this method of financing noncriminal? I will consider the moral arguments for taxation later. For now it is sufficient to note that taxation is a distinguishing characteristic of the state.

Printing money or simply creating money out of thin air and adding it to their bank accounts are other methods that modern states often use to finance their operations. If private citizens did this without special dispensation from the government, it would be called counterfeiting and would be regarded as a crime.

The clearly voluntary methods of financing, such as lotteries and usage fees, are not used by all states and are not essential to the concept of the state. Not all states create fiat money, so fiat money need not be included in the definition of the state. Taxation is the one essential method of state finance. It ought to be included in the definition of the state.

Coping with Competition

The state establishes political borders and imposes its rule on people who live within those borders. It copes with other organizations within its geographic area by either outlawing them or by regulating them and setting limits on their activities. The state enforces its mandates and prohibitions within its borders by initiating or threatening to initiate violence. A private individual or organization that attempted to obtain a ruling monopoly in this way would be regarded as criminal. The unique way the state establishes political borders and treats competitors inside those borders distinguishes it from legitimate private enterprise, so this should be included in the definition of the state.

Treatment of People

Private enterprises provide specific services for particular clients for specific prices. The clients are free to buy these services from competing companies or not buy them at all. Clients pay only for the services they hire.

The state provides its services (whatever services it chooses to supply) to whoever it chooses, and it forces the taxpayer cover the cost. As an example of the difference between the way legitimate businesses treat clients and the way the state treats its subjects, consider the difference between private and government courts. Private arbitrators are increasingly being used to settle labor disputes and other kinds of contract disputes. In private courts, the parties can freely choose to be bound by the decision of the arbitrator, and all the testimony and other evidence is voluntarily presented. In U.S. Federal courts, the government: (1) requires defendants to appear in court, (2) empanels juries by threatening them with fines and imprisonment for "contempt of court," (3) subpoenas witnesses to testify, and (4) enforces the decisions of its judges and juries without regard to the consent of the defendants. If a private individual or organization not acting on behalf of the state were to use any of these coercive procedures, that individual or organization would be recognized as criminal. For convenience, I will lump (1) through (4) together under the category of "forced labor," because each of these practices can be regarded as requiring work without consent. However, as mentioned earlier, not all states operate courts, and there is no reason why states that do operate courts have to use forced labor, so we do not need to include forced labor in the definition of the state.

Summary of the Political Means

The definitive methods used by the state that distinguish it from legitimate private businesses are: (1) taxation and (2) the use of brute force to establish and maintain a monopoly of rulership within its self-proclaimed geographic domain. These two methods are the political means. If we think of the state as a wealth distribution service, then we could say that the state is the organization of the political means of acquiring wealth, in contrast with private enterprise, which is the economic means of acquiring wealth.3

The state does not necessarily exist for the purpose of redistributing wealth (although this has been a fruitful hypothesis for historians). As I have shown, the redistribution of wealth is a necessary means of the state, but the state has no definitive purpose other that to allow the rulers to rule.

The state is the most powerful organization in its geographic area. It usually commands more resources than any other organization. It is not surprising to find highly placed people in country after country all through history using the state to amass personal wealth. Greed and aversion to work may be the real motives for political activity, but no pro-state political theory that I know of is based on this assumption. Despite all the evidence of the state originating by conquest for the purpose of plunder, it would not be fair to serious political philosophers to include this in the definition of the state.

The Definition of the State

The state, at a minimum, controls a geographic area by using the political means. The reasons for creating or using the state may include wealth redistribution and such noneconomic goals as legislating morality; providing emergency relief when disasters occur; exterminating disliked racial, ethnic, and religious groups; forcing people from different ethnic groups to live together; subsidizing the arts; punishing criminals; and so forth. Particular states may differ from each other in the services they provide, but they are alike in that they operate by using the political means. So we can define the state as follows:
The state is an organization that rules the people within a specific geographic area by imposing taxes on them and by using brute force to require all individuals and organizations within its domain to obey its commands.
Now that we have a definition of the state, we can assess the various arguments used by political philosophers to justify it.

The state is a criminal organization.

Given my definition of the state and given the principles of justice developed in Chapters 4 and 5, it is clear that all states are criminal organizations that cannot be morally justified by any conceivable argument. Our right to do anything that is peaceful means we have the right to ignore the state, to relinquish its services, and to refuse to pay for its support. Since we have the right to be free from invasion, the state has no right to take our property against our will by forcing us to pay taxes. We cannot be forced into joining a political affiliation without violating our right to be free from invasion, but we can withdraw from or refuse to enter into a political affiliation without violating anyone's rights.

The state, by definition, levies taxes and imposes its rules by brute force. When it does this to people who are not violating anyone's rights, these actions of the state are crimes. The state always does this, therefore, the state is a criminal organization. This should be all we need to know about political philosophy, but political philosophers and theologians have worked hard for centuries to distort the public perception of the state and its history. So, in Appendix C, I try to address the major political myths and show that they are false.

Go to Chapter 7. Which economic system is just?

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