1. In a recent
essay at Big Hollywood Mark Tapson discussed and expressed disapproval with some recent statements by filmmaker Michael Moore, who asserted all Americans share in the immorality of what he alleged were crimes committed by the American government. This is in fact, and surprisingly, similar to a philosophically-centered conversation your humble bloggers had a few months ago. The question boils down to this: what exactly is the relationship of the individual to the state? The corollary point, which is the only one discussed most of the time, is where does the responsibility for state action lie? There are a number of issues at play here so let us systematically look at them using the United States as an example.
N.B. While both of your bloggers discussed this issue recently, below are strictly my thoughts. I actually had in mind also various existential criticisms of the state, i.e. that it ought not to exist at all. Also, it is a rather preliminary investigation into these issues, presented here anyway for the purposes of promoting discussion and understanding of the questions.
I.
2. We already stated the first question, "what exactly is the relationship of the individual to the state?" We must now examine its constituent parts: the individual, the law, state institutions, and the execution of law. We must note first what is considered to be the natural state of things before any human action:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
3. Thus governments are instituted to secure man's Life, Liberty, and the pursuit of Happiness. Government's just powers are derived from the consent of the governed. Thus any body of laws should begin, "We the people, for the purposes securing Life, Liberty, and the pursuit of Happiness, establish laws, X, Y, Z, et cetera." Let us look at how the Constitution begins:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
It is not
quite what one would expect. Instead of "Life, Liberty, and the pursuit of Happiness" we have to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Logically we must assume the latter six not only to be compatible with but in fact a subset of the first three. These are those "principles. . . as to the people will seem most likely to effect their safety and happiness." Other principles we will find in the Bill of Rights and the form as we know will be a bicameral congress, judiciary, and executive.
Through the remainder of this essay for efficiency we will use simply the word
liberty to refer an individual's life and property, the protection of which is the means of effecting the above principles. (We will consider this particular point again in section eight below.)
4. But let us return to the notion of "consent of the governed." What if you withdraw your consent and refuse to be governed? You still possess the natural right to secure your "Life, Liberty, and Happiness" yourself. You would simply have a private piece of property somewhere not subject to the specific subset of laws adopted by other nations. We will call these "private men." This sounds acceptable, perhaps even preferable. However what if 10,000, or 100,000 such private individuals existed. Let us say they are free to interact with, amongst, and on the property of Americans. Should disputes arise, which law would prevail, that of the private men or the Americans? Each case involving a private man and an American would be one essentially of "international relations," i.e. highly complex. The only solution would be to say that on American territory American law prevails. This means American law is effective in certain places (still stipulating that Natural Law is effective everywhere.) What if, then, a man moves far away from American territory but still wishes to follow American law? Imagine the year is 1800 and 10,000 citizens from New York disperse to 10,000 private residences amongst the wilderness of the frontier and wish to follow American law. This is naturally impossible to carry out. They are effectively their own countries who choose to accept American law.
5. Let us look at another example. A child is born to an American family in an American city. This child as we keep saying has the same natural rights as all people. (We will not henceforth mention this.) Does he inherit the positive law also? Yet he is a child and subject to the laws of his parents too. Then let us assume he has reached the age of maturity, 18, and pose the same question. He would appear to have the choice of staying or leaving. If he leaves his choice is clear, but if he stays? May we assume consent?
What if he inherits or purchases property surrounded by "American property?" Which prevails, his right to exercise his authority over his property or the concept that an umbrella of the state exists over certain property the state claims? It would seem the man's claim, being based on natural law, ought to prevail.
6. We see in the problems from the above section five that the concept of the state, which is by definition an entity of homogeneity, is in tension with the concept of liberal natural rights. The terminology of the preamble to the Constitution demonstrates the fact the Founding Fathers were attuned to this tension. For example, it mentions forming a "more perfect union" and insuring "domestic tranquility" and passing on liberty "to our posterity." All of these phrases suggest a need for smoothing over, for harmonizing, or at least mingling, discord. The first two phrases quite obviously refer to establishing the legal homogeneity required for a state we mentioned in section five above. The phrase "to our posterity" implies some need of continuity from one generation to the next. We will revisit these principles later.
7. We looked for the natural condition of man, shall we not do so for the state? Perhaps nature will resolve or assist us in resolving the contradictions we have observed. Undoubtedly the most famous statement in this line of observation is that of Aristotle's, from Book I of his
Politics, that man "is by nature a political animal." The Philosopher reasons that the state is a natural outgrowth of the most fundamental association of all, that between man and woman. This pairing, he says, is not deliberate but natural and necessary. Such is the criterion he sets forth for associations, that "there must be a union of whose
who cannot exist without each other." Clearly he is correct in this observation regarding man and woman. Can man exist without the state? Surely he
may, theoretically, but can he in practice? Aristotle reasoned likewise that as man and woman form family, families form communities, and communities villages, and villages states. The end of a thing being its nature, man is thus said to be a political animal. Minimally we may say based on observation that lack of a state, even if such a lack is not natural, is certainly not the norm. Indeed, societies without continuous government and law can be seen to be less sophisticated.
8. A state comes into existence, as Aristotle says in the opening line of the
Politics, with a view to some good. The Preamble to the American constitution sets forth the good hoped for. The legitimate state, then, exists to bring about for the people something necessary and something attainable by no other means.
We should digress to elaborate on this notion. Namely that government should act only by design, toward its end, and not in incidental manner. Too it should not impede anything else which is necessary. Likewise it ought not to impede or promote anything contrary to its end. We see then, by this argument, that the protection of liberty, more specifically the restraining of criminals and of necessity the state
itself, from violating the rights of citizens, is the only proper role of government because it is the only goal which can be carried out without destroying another.
9. To return to our earlier statement then, that the legitimate state exists to bring about for the people something necessary and something attainable by no other means. For example, the union of man and woman exists because without such a union humanity would not continue. Is the fundamental purpose of the American constitution, then, possible, without the state?
It would seem so, especially because man is said to be "born free." If he is already free, then why does he need the state to be free? Yet is the preservation and continuation of liberty possible without a
just (recall, "deriving their
just powers") state? Clearly not, at least on one respect, for example the constitution was needed in the first place. The American colonists were free by right but not in practice. Likewise, "common protection" was deemed something only commensurate to a just state. This too is so, for while a man can defend himself from a bandit, and perhaps even a family may defend itself from bandits, it alone cannot protect itself from larger parties.
This family is then both free and not free. Though seemingly free from compulsion, it lacks the means, the force, to deter those who would initiate violence against it and deprive its members of their rights. We see then that the role of government ought to be toward restraining those who would deprive others of their rights, i.e. criminals. Non-criminals do not need to be and ought not to be controlled.
10. Lastly we may address the issue of the "posterity" clause of the preamble, which addresses the aspect of time. In fact it addresses an aspect of freedom only a continuum of some kind can fulfill. This clause makes the whole document eschew the ephemeral. Holding
generations as well as individuals at legal parity, this seemingly slight phrase prevents any law which would sacrifice the future for the benefit of the present. This posterity clause is redundant insofar as everyone has equal rights and thus the old and young have the same. It merely emphasizes that these rights must of necessity be delegated from the young to the old.
It would seem that while man is "born free" his nature being a reasoning and political animal, that is by nature he may act beside inclination and must somehow interact with others, preserving his freedom is less plain a task. Thus to be free in practice man must either be alone or establish law and order. Unless, of course, all men are virtuous and in accord.
11. Thus policing is necessary, as is an institution for it, but is it a task only a state can fulfill? Let us consider domestic policing and foreign threats separately. Of policing it is clear individuals can rightfully defend themselves, and likewise clear delegating this authority to experts is desirable so one does not have to be in fear for his property or always to defend it himself. Yet it seems a private policing agency could be effective. In order to be in accordance with law it would have to work closely with the appropriate legal agency. It would then differ only slightly from a formal, state-run police force. However if there were multiple and
changing forces the courts and legal system would be unable to coordinate with them all and produce a consistent protocol for dealing with crime.
Such would also be a problem in having multiple, dynamic, private armies: they would all need to liaison with the appropriate federal agency in order properly and consistently to carry out national defense policy. Both situations, private police and armies, would produce too many variables for the legal system.
Additionally, it being the case that the military and military operations have higher needs for unity it would be infeasible to merge or intermingle these private forces, potentially many and diverse in skill, age, and size, into a single operating force for imminent combat. As such the national force would be compromised. Also a military tradition must exist to maintain a sufficiently trained army, although should no other professional armed forces exist in foreign lands, one would then not be needed since all would be at equal advantage. Until then, one must exist in a state.
Such of course presumes a standing army and thus a need for expediency. Only an in-place institution can react swiftly to dangers. Or at least more swiftly than if the citizenry had to react to each common danger as if it were the first. For example, imagine a citizenry being threatened by a foreign power. Now imagine if they had not just to decide how to defend themselves, but first if and what sort of body, and a body of which people, ought to be convened to decide.
12. Yet these arguments are relatively slight and might conceivably be overcome given sufficient communication, planning, and efficiency. Such not being universally attainable, the above arguments must be brought forth. Most importantly, though, the administration of law must be enforceable and enforced, and for this reason some element of force must stand behind the rulings of judges and arbiters. If private enforcement agencies were instituted, they would in theory be accountable to the legislative and administrative authorities, but in practice would pose risk of faction in the realms of interpretation, jurisdiction, and administration.
Great caution must be applied in the creation of all institutions with the force to bind, since all force and power, external and internal, are potential threats to liberty. A great army to defend against external force might prove as great a threat to the citizenry as a foreign force. Precedent offers many such examples, most notably the Roman army's influence on the succession of the Caesars.
13. We see then, that a state is necessary in several respects. First is as set of laws fixed in place, something both necessary and natural. For example, there must be an objective law to turn to, otherwise even if two people can agree on a dispute, or submit to arbitration, why should a third, or fourth party be bound to the ruling? Thus they must be fixed, which is essential to be effective, i.e. to fulfill their purpose. As Aristotle says in II.viii of the Politics, that while sometimes laws do need to be changed,
. . .great caution would seem to be required. For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience. . . For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law.
Second they must be instituted, i.e. carried out by an institution, i.e. a government entity, e.g. the mechanisms of administration or enforcement. Such is because all laws, even when they are fixed, are subject to the vicissitudes of life insofar as their
administration, though not necessarily of their interpretation. Only an institution whose rulings are regarded as binding can create the objective standard needed for order. We must note, though, that an institution is not a guarantee of the end. We must stress it is itself only a
means. Government does not guarantee liberty, of course, though good government is needed to create an orderly sphere in which liberty may be lived. Yet good government itself has requirements, namely broad understanding amongst the people of the nature of democratic-republican liberal government and the desire for, and the industry to create, peace, justice, and equality of rights. It also ought to reflect and be consistent with the natural law, its positive law ought to be practical to administrate, and it ought to reflect the nature of the people. An institution of good government is, though, a necessary means as mechanism and a natural, though not complete, retardant to change because it harbors precedent.
14. Having discerned the natural need for and state of the state, let us at last return to our issues from section five. The need for a state, in order to justify its existence, to exist fixed in time in law and domain means it cannot endure a constant flux where at any given time any amount of it is in fact not of it. In other words a state needs a domain.
As such a man, though a non-American, can obtain and freely possess American land, the land must remain of American law. The law being of a fundamentally liberal, i.e. minimal, nature, this ought not seem so egregious. This also answers our question regarding citizenship, i.e. if an individual comes of age and remains in the land does he consent to its rules? If the land is inherently of the law, then yes. We must add, though, that he must be free to leave.
15. Having inquired into the fundamental natures of man and the state we can look at the more subtle aspects of their relationship. Foremost we observe that it is the preservation of liberty which naturally binds them. To stray from this end is to be destructive of it. To stray from this end is also a moral hazard, since the individual has consented to be governed only toward the end of protecting his own liberty, not toward any other. To pass laws irrelevant to this end is also a breach of the contract between the governor and governed. In such cases the fault lies with the governors and legislators. The terminology we just used, that "laws bind" should make us pause and recall that
all laws bind. Thus laws in addition only to addressing the issue of liberty, should be as few as possible.
Such demonstrates the necessity for the principle of federalism, wherein within one state there are smaller ones and still smaller ones. In a cascading effect, some laws apply to the whole land, some to smaller jurisdictions, and some only to the smallest. This has several benefits. First, people have choice amongst regional constitutions. Second, people are subjected to as few laws as possible, since people of a certain opinion can have their own town and law without trying to make a larger area, and thus likely people who disagree with them, subject to their law. Third and similarly, it is easier to pass certain laws since they will apply to fewer people and thus need a smaller consensus. Lastly, this system of cascading laws, or federalism, allows people to bind together for issues of great importance, and be free from what they do not wish to be a part of.
Jefferson made a similar plan with his system of wards, "It is by dividing and subdividing these republics from the great National one down thro' all its subordinations, until it ends in the administration of every man's farm and affairs by himself. . ." [1]
16. We see then that while life, liberty, and the pursuit of happiness naturally exist they do not naturally persist and are not always possible to act on. Even if one thinks freedom is conducive to allowing the individual to have everything he needs, it does not follow that everything (or nothing) is conducive toward effecting freedom.
The preamble to the constitution speaks of "unity, justice, defence, and securing for posterity." These are conservative points, as are the points about institutions we made above. Indeed we might do well to consider a just government an institutional of conserving liberty. A similar turn of phrase is found in Destutt de Tracy's
Commentary and Review of Montesquieu, which much influenced Jefferson [2], that a rational government will always aim at conserving "the independence of the nation, the liberty of its members, and such security for every individual as to supersede the idea of fear internal or external." [3]
The Founders were acutely aware of forces, e.g. factions and mobs besides foreign threats, which were hostile to liberty. Even after experiencing tyranny, they resolved not to protect freedom by creating a vacuum of power, one they knew would be filled by the first man or confederacy which could arouse fear and promise security, but rather by arranging it as judiciously as it has ever been, with the most specific of focuses and limits.
II.
17. We may now observe the last of our three aspects, that of the execution of the law. It is in this respect which citizens most differ amongst themselves, how to carry out the law. In a democratic society there are indeed a great variety of opinions as to what ought to be done, how, and when, even when the final end is the same. It is in these respects which the government acts contrary to the will of some of its constituents. This could only be avoided if 1) society was governed by an individual or group with absolute power, which would mean the citizens could not be blamed for the actions of the government because the citizens had no choice. Or 2) if the government only acted when 100% of the citizenry agreed, which would remove all agency of the government since such a time would effectively be never.
18. Thus we might now answer our original question. If you disagree with the fundamental laws of the government of which you are a part, (I stress government and not society) dwelling there by nature is hypocritical. Disagreeing with execution of law is a different sort of disagreement, in fact one fundamental to the concept of a liberal democracy. Yet when one disagrees one must voice dissent, and not just to one's fellow citizens, but to one's representatives in government to whom one has delegated authority. Only in doing so have you done the maximum you can to exert your single-citizen's influence over the law. You have also removed your sanction from what you consider "wrong" (let us indulge the use of this vague term here.)
19. Of course this is not some easy and delightful solution. There is a certainly-apocryphal quote[4] from George Washington that government is a “troublesome servant and a fearful master.” Indeed. Being political requires much of man. It requires diligence, reasoned consideration, and a consistent effort of keeping informed. Freedom too requires much of man, namely an active and continuous participation in government. Yet it requires still more than that, namely an understanding that politics both binds and separates, and that a man know himself, when to bind and when to stand alone. It requires a "conscious dignity becoming freemen." [5] Such is the cost of a free
society. Simply to resolve that the government is "just bad" and to exonerate yourself of its actions is as foolish and is as shameful an evasion as hyper-statism. It is likewise dishonest and false to claim a nation of democratic citizens at fault for each and every of its government's actions. These extreme approaches try to resolve a complex problem into facile answers, wherein problems are either the fault of everyone or no one.
–
[1] Letter to Joseph Cabell, Monticello, Feb. 2, 1816, M.E., XIV, 420.
[2] Koch, Adrienne.
The Philosophy of Thomas Jefferson. Columbia University Press, New York. 1957. p. 154, footnote no. 19.
[3] ibid. p.160.
[4]
http://volokh.com/2010/04/14/government-is-not-reason-it-is-not-eloquence-it-is-force/
[5] Adams, John.
Thoughts on Government.
Bibliographic Notes
After completing this essay I revisited Ayn Rand's essay "The Purpose of Government" which I had last read several years ago. I immediately became aware of many similarities between this and my essay. These were not deliberate nor did I seek to emulate, build on, or critique Rand. Nonetheless I must acknowledge the similarities and the debt.
Also
after finishing my essay I read several sections of Ludwig von Mises' "Liberalism" and there too I noted similarities to this essay. Likewise they are not deliberate and in this case I had not read
any of Mises' "Liberalism" prior to writing my essay.
Lest for any reason this essay be thought to give license to statism or a loose reading of "freedom" or "liberty" please consider my essay,
"A Libertarian Case for Free Healthcare?"
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