William Thomas on Government

By George H. Smith

According to Mr. Thomas, it is "absurd to criticize the existing governments for being 'coercive'," because "the purchase of legal services cannot occur in the context of the law….After all, what one is purchasing IS the law." Thus: "Any legal system, even a system of competing agencies, will arise through a process that will involve the exertion of coercive power. If your agency isn't prepared to be coercive toward people who violate their rights, then you'll need a new agency."

Given a government that is truly engaged in the business of protecting rights, that government would logically be compelled to prohibit any competitor within its sphere of jurisdiction. Why? Because any such competitor, in order to qualify as authentic competitor, must be peddling an alternative legal system; and the only alternative to a just legal system is a system that is unjust. And this is something that a just government could never tolerate.

What else could our ideal government do, asks Mr. Thomas, except coercively suppress its would-be competitor in the name of justice? After all, in stamping out this competitor, the ideal government is shielding its citizens from the invasive actions of a renegade agency, which was attempting to implement despotic measures under cover of law. The ideal government, therefore, is protecting the rights of its citizens, no less than if it had eliminated a roving gang of thieves and murderers. And thus does this government pass the Randian test of legitimacy. And thus does Mr. Thomas contend that every law-enforcement agency, even those in a free market, must necessarily seek to monopolize the use of legitimate force within its territory.

The pertinent question to ask Mr. Thomas about his ideal government is this: How has he determined that its legal system is in fact just? More specifically, has he employed OBJECTIVE or SUBJECTIVE criteria?

By "objective criteria," I mean principles of justice, such as individual rights, that are derived by reason and knowable to every rational person. By "subjective criteria," I mean the claim of the government in question that its rules and procedures are just.

If Mr. Thomas has used objective criteria to assess the justice of his ideal government, this means that the legal system of the competing agency can objectively be condemned as unjust. In this case, the right of the government to eliminate its competitor has nothing to do with the need for a monopolistic final arbiter, but rather is grounded in the right of every individual to resist (by violence if necessary) the unjust use of force.

If, on the other hand, Mr. Thomas has used subjective criteria to assess the justice of his government – if, that is, the subjective claim of government itself constitutes sufficient warrant to eliminate competitors – then every government, past and present, no matter how brutal or despotic, is likewise warranted in stamping out alternative legal systems, regardless of how libertarian those systems may be.

Let's tinker with the initial assumptions in Mr. Thomas's argument and see where we end up. Suppose the government in question is not a reformed U.S. government, but the totalitarian regime of China. In our new case, Mr. A. Narch is a Chinese libertarian who attempts to set up a justice agency on the Chinese mainland, one that operates according to libertarian principles.

Of course, we know what the Chinese despots would actually do in this case, but the interesting question is what they SHOULD do, according to the moral perspective of Mr. Thomas. Should they smash the fledgling justice agency of Mr. A. Narch, in an effort to enforce their sovereignty? If Mr. Thomas says "yes," then he and I have profound disagreements that run far deeper than this debate topic. But I am reasonably certain that Mr. Thomas would side with Mr. A. Narch in this instance, rather that with the sovereign despots. But why?

Well, Mr. Thomas might claim that the Chinese government is illegitimate, since it is involved in the wholesale violation of human rights. And if this is true, then the bogus Chinese government cannot rightfully enforce a coercive monopoly in an effort to exclude a legal system that is truly just. If this (or any similar) argument is employed by Mr. Thomas, then the fundamental issue involved here is not the monopolistic power of government per se, but rather the JUSTICE OF THE LAWS that are enforced by that government. Moreover, in condemning the Chinese government as unjust, Mr. Thomas has conceded that we needn't accept the subjective (and self-serving) rationale of a particular government, but may instead assess the justice of that government by objective standards.

If Mr. Thomas is willing to concede these two points, then the anarchist has all the ammunition he needs to rebut the arguments of Mr. Thomas himself. These points are as follows: (1) Our primary concern should be with the justice of a legal system – i.e., with WHAT laws are enforced, not with WHO enforces them. (2) This justice can be ascertained by OBJECTIVE standards of right. If the legal system of an agency (whether governmental or private) is truly just as evaluated by objective standards -- and if, by "competition," we mean any attempt forcibly to overturn this legal system, replacing it with an unjust system -- then our agency may forcibly resist and overthrow the outlaw agency, owing to its effort to violate individual rights.

As I said, however, this right to suppress the outlaw agency has nothing to do with the alleged necessity for a final arbiter. Rather, it is simply an application of the right of every individual, whether by himself or in combination with others, to resist and repel despotism, whatever the source of that despotism may be. The pertinent issue, therefore, is not whether we need a coercive monopoly to enforce justice; but whether we can determine the justice of legal system by objective methods, and whether, having objectively condemned a given system as unjust, we can then forcibly resist any individual or agency which seeks to impose that system. This has everything to do with the individual right of self-defense, as manifested in the libertarian rights of resistance and revolution, and has nothing whatever to do with the supposed need for a final arbiter.

If, to escape this interpretation, Mr. Thomas shifts from an objective to a subjective point of view – if, that is, he stresses not what is objectively just, but what a particular government subjectively CLAIMS to be just – then every government will necessarily exclude competitors in the name of justice. This, after all, is nothing more than the "logic of sovereignty argument" that governments have used since time immemorial.

But this subjective version of the sovereignty argument "proves" way too much for the minarchist, because it imparts moral legitimacy to every government, no matter how murderously tyrannical it may be. It would, for example, justify the crushing of Mr. A. Narch by the totalitarian regime in China, because that regime, like every government, lays claims to subjective legitimacy.

Objectivists, if they are to remain true to the theory of rights defended by Ayn Rand, must agree with anarchists that the moral legitimacy of a particular government depends, not on the subjective claims of that government, but on true measure of justice in its legal system, as evaluated by objective criteria.

If a legal system is objectively just, then its enforcement agency (whether governmental or private) may properly restrain the "competition" of an unjust legal system, whether implemented by a government or by a private agency. If, however, the competitor also works within the framework of a just legal system (perhaps differing from the other agency in optional matters of procedure), then that competitor may not be forcibly restrained from entering into contractual relationships with willing customers.

I therefore ask the same questions of Mr. Thomas that I have asked of many minarchists, viz.: Do you believe that the justice of a legal system can be determined by reason and objective procedures, or do you believe that justice is ultimately subjective? If you believe justice to be objective, then why cannot individuals contract with any agency they choose, so long as that agency enforces objective principles of justice, as determined by your standards? If, on the other hand, you believe that justice is subjective, then why should we not regard the Chinese government and all similar regimes as legitimate, and uphold their right forcibly to resist the incursion of libertarian agencies into their sovereign territories?

The logic of sovereignty argument is valid only within a subjective theory of justice, where a coercive arbiter must prevail in the absence of reason. In an objective theory of justice, however, what appears to minarchists eliminate unjust agencies – has in fact nothing to do with the supposed need for a final arbiter, but is instead the application of an individual's right of self-defense.

Minarchists, after noting that an objective theory of justice can generate the right to exclude competing agencies in SOME cases (i.e., when the agency is unjust), erroneously conclude that this right flows from political sovereignty. But sovereignty demands the exclusion of competing agencies in ALL cases, even if the competitor is far more just than the sovereign itself. Sovereignty, based as it is on subjectivism, cannot logically discriminate between just and unjust legal systems, so it transforms the de facto power of an existing government into de jure sovereignty – operating, in effect, from the maxim of Alexander Pope, "Whatever is, is right." This is why the theory of sovereignty and its attendant absolutism have always denied the rights of resistance and revolution.

A system of objective justice, on the other hand, enables us to discriminate between the initiation of force and the retaliatory use of force, thereby providing a rational method of assessing any person, agency or government which claims to use legitimate violence. Furthermore, a system of objective justice defines and sanctions the use of defensive violence, which has traditionally been expressed in libertarian theory as the rights of resistance and revolution.

These rights, which stem from the individual right of self-defense, can justify the suppression of any agency or government that seeks to impose an unjust legal system. And though this suppression of "competition" may sometimes bear a superficial resemblance to the sovereign suppression of all competition (whether just or unjust), this should not mislead Objectivists and libertarians into supposing that these two actions – one by a sovereign government, the other by a private justice agency – are based on the same mode of justification.. One (suppression by a sovereign government) is rooted in political subjectivism (or relativism), and has no relationship to the justice or injustice of the victimized agency. The other (suppression by a justice agency) is rooted in political objectivism, and is confined solely the suppression of unjust agencies and governments. The former power is justified by political sovereignty, a right that cannot be reduced to the rights of individuals.