A forward of an interesting paper by Tibor Machan.
B.
From: Tibor_R._Machan@link.freedom.com (Tibor R. Machan)
To: LibProfs-l@genius.ucsd.edu
Date: Tue, 19 Oct 1999 17:49:01 -0700
A Positive Libertarian View of Government
[A version of this essay appeared in The Navigator, Nov. 1998.]
The Target: Minimalist Government
In recent times, when libertarians have been making some headway in getting their ideas aired in various prominent forums and published by respectable houses, both modern liberals and conservatives have been taking potshots at their conception of government. William Kristol and David Brooks, two Republican intellectuals who write for The Weekly Standard, have been especially keen on denigrating the libertarian idea of a government with properly circumscribed powers and scope. They have complained, also, that such a view is not sufficiently inspiring and that citizens cannot rally around the libertarian idea of society in which government has a restricted role. How would such a society fare in case it needed to be defended from foreign enemies? How could it function as a world power?
In essence the critics make the point that a minimalist government, looked upon with suspicion to start with -- that is, thought of as “a necessary evil” -- simply hasnt a chance of survival, let alone flourishing. Governments must generate sufficient devotion, reverence and respect so as to garner the support needed to govern.
Government a la Libertarianism
But these critics fail to have a clear understanding of, let alone full appreciation for what the libertarian view of government really comes to. Indeed, they fail even to have a clear understanding of what a conservative is committd to in the American political context, which, when fully grasped, would be the vision of government articulated by the American Founders.
In fact, libertarianism does have a positive, upbeat but frankly demanding view of government, spelled out by the American Founders. It is "to secure these rights [to life, liberty and the pursuit of happiness that] governments are instituted among men, deriving their just powers from the consent of the governed." That is the essence of te libertarian view of government. And how glorious that vision is -- for starters, consider its source!
The Just Powers of Government
So what are the just powers of government? Whatever is needed to secure the rights in question, no more, no less. And that is a large and honorable enough order for any institution!
Libertarians invoke nothing less than the Declaration of Independence as their rallying cry against those paternalistic conservatives who have no idea what it is that they wish to conserve from the American political tradition. Libertarians do: they want to preserve the Declaration's positive vision of government as the great, honorable, and properly understood guardian of our rights. Its moral virtues are vigilance, valor, honor, and, most of all, integrity. What if politicians in our time -- those professionals who have taken an oath to administer our government -- actually possessed these moral virtues? Would that not be inspiring? Would it not earn them respect from the citizenry? Certainly more so than would a state spread perilously thin from meddling in peoples various non-political concerns, with all the attendant mishaps to degrade it, to give it the lowest standing American government has ever had (according to today's news).
The crucial point to be made to those who belittle limited government is exactly the above. Another is that government is disliked today, especially by libertarians, not in the role sketched above but as the monolithic leviathan it has become. What many people hate about government isn't its virtues but its vices that necessarily arise from its lack of integrity, lack of sticking to its duties.
Government in its Proper Perspective
One should also add that it is reductionist to think of political theory and public policy as needing to forge a vision for all of society -- society being a huge and diverse group of individuals intertwined in innumerable complicated ways with various goals and purposes suited to these individuals in their innumerable groupings and united by a common sense of civility, of respect for the rights of everyone. It is imperialistic to attempt to generalize the goals of one individual or a special group of them to that of others, apart from the very general purposes of seeking to live a fulfilled, happy, honorable life. To secure the right to do this is part of what makes government itself an honorable institution, when clearly understood and kept uncorrupted.
What the libertarian bemoans is the absence of a government deserving of proper respect and honor. He asks that we all subscribe to a substantial, exacting but properly delimited vision of politics. Even those among libertarians who have, often through exasperation, rejected the very idea of government -- actually, most of them prefer using the Hegelian idea of “the State” when they articulate their anarchism -- can give support to the limited conception outlined above. All of them are committed to some sortof institutional defense of individual rights, be that a competing government, a defense agency, a justice agency or whatnot. For most of us that means that some version of government as an agency dedicated to doing a conscientious job of guarding individual rights merits support from libertarianism. At this stage of the discussion it seems we are talking semantics, not substance. What should we call that unique agency of society that has as its duty to secure our rights? Whatever we do call it, it will be taken to be the instrument that other political theories tend to want to elevate to a place of not simply government but regimentation, rule, regulation -- in short, coercion.
How could anyone seriously believe that a form of government that resists becoming coercive and carries out its job in accordance with due process -- the requirements of justice -- could not inspire the citizenry of the society in which it operates far more than does the degrading spectacle calling itself government today? Only folks who mistakenly expect government to be something it should never become, a parental authority.
Some Anarchist Worries
I do not wish to leave the impression that libertarians are all comfortable with the idea of government. Actually, those who doubt the merits of this institution tend to speak of the state and remain largely committed to some integrated legal authority.
Still, it will serve the spirit of full disclosure to briefly discuss some of the concerns certain libertarians express about government.
Law as Enterprise?
Among scholars who have been studying the structure of a free legal system there are several who model the nature of all law on enterprise.
Bruce Benson's book stands out as a clear example, with its title, The Enterprise of Law (San Francisco: Pacific Research Institute for Public Policy, 1990). The subtitle of Benson's book, "Justice without the State," provides a clue to the difficulty with the idea of law as enterprise.
The alternative Benson poses is that between freedom of enterprise and statism. Others, such as Randy Barnett, seem also to pose this choice. Yet there is a third option. Free enterprise within the framework of law that protects the right to freedom.
The concept of "state" is a complex one in political and legal theory but usually it means a society conceived as an organic whole. Hegel and Marx both worked with such a meaning of "state," as do many others who advocate a powerful authoritarian political system.
The concept that seems to be the best candidate for a more benign substitute without losing certain distinctive political components is not "enterprise" but "government." There are some fairly clear-cut reasons why the enterprise model of law has problems.
First, enterprises presuppose property rights. In order to invest, trade, hire, fire, contract and do all those things enterprises are likely to do, those who embark upon an enterprise must have their right to private property clearly enough defined and well enough protected so as to carry on with their tasks. And the definition and protection of private property rights within a complex society requires law. So there is a serious threat of an institutional infinite regress if law itself is understood as just one more form of enterprise. There is your barbershop, your auto factory, farm, insurance agency, and brokerage firm and next on the block is your adjudicating institution.
Whereas with the others there can be several on the same block, almost literally, with the adjudicating agency several will pose a problem.
Suppose one is hired by the barbershop, another by the factory and a third by the insurance agent. And suppose some of these come into potential legal conflict with one another. How is the adjudication to ensue? Will the plaintiff be able to secure the presence of the defendant in the same courtroom? Not if the defendant refuses to deal with the same adjudicating agency as the plaintiff.
More importantly, suppose there is a dispute between the adjudicating agency and some other enterprise regarding contract violation or property rights. Who will adjudicate this dispute? And how will jurisdiction over the parties be determined?
Benson & Co. have some answers to these questions, mainly along lines of interagency contractual agreements. This solution resembles international law. In the international arena we have no binding court of last resort, yet often the World Court and similar bodies function quite successfully as adjudicators of disputes between parties with different citizenship and, indeed, between different countries. Why so? Because there are various motivations that impel the parties to come to a resolution, usually involving business disputes.
But there are also some serious problems with the international adjudication process, especially where criminal law is concerned. Here compliance is not so readily come by. Different countries hold different standards of justice and reciprocity is often resisted. When Yugoslav President Slobodan Milosevic was indicated by one of the international courts, compliance wasn't forthcoming because Yugoslavia does not grant authority of the court within its jurisdiction. In order to secure the presence of ex-Chilean dictator Augusto Pinochet in the Spanish courts, he had to be captured in England when there for medical treatment. Chile would probably not have cooperated with the Spanish authorities. And when Bertrand Russell and Jean-Paul Sartre established the international court in which the United States of America was indicted and, if I recall correctly, convicted of war crimes in Vietnam, the US government refused to respond.
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.
On the other hand, one can embrace the enterprise model with some modifications that will leave intact the idea that systems of adjudication need to be broadly integrated in order for them to be functional. If we consider, say, the USA, Canada, Mexico, New Zealand, Australia, Japan and all other countries as forums of dispute adjudication, the possibility of changing one's residence or citizenship affords one something akin to benefiting from competition. Even within countries with a substantial federalist political organization there is the opportunity for benefiting from competition. New York versus New Jersey, Pennsylvania, and so on, all the states compete for customers of their adjudication services. Certainly we see such competition functioning vis-ŕ-vis taxation, which in this context could be viewed as court fees. They vary and parties to potential disputes will shop to find the most efficient process at the lowest cost.
In this scenario, however, the forums wherein adjudication can proceed are large habitations, with thousands or millions of potential disputants signed up within the same homogeneous system. They are usually committed fairly long-term and may leave only if they have a clean record and no adjudication pending that involves them. Moreover, within the system various layers of authority operate, so that the appeal process is integrated and there is in principle a court of last resort.
In this sense adjudication services resemble some other business enterprises wherein one signs up for the long haul. Insurance services are like this, as are apartment rentals, car leasing and, yes, marriages. Midway through the duration of the long-term contract the option to exit does not exist or exists only at great cost. And this is because the very idea underlying these kinds of relationships, between customers and service providers or trading partners, is that reliable, ongoing and predictable arrangements are of benefit to all of the parties.
So in one sense the idea of the enterprise of law is a mistake -- if it is modeled on the shopping mall, where one can conduct trade fast and furious and switch trading partners without much loss. The "enterprise" of law will normally involve commitments over the long haul, known as citizenship. Other enterprises presuppose the existence of the adjudication forum. So there is something basically different between law and enterprise. (Of course, there is the further non-negligible difference that the customers of most other enterprises tend to be willing to deal when the important processes of the enterprise ensue, whereas in law half the customers would usually not be involved in the deal at all.)
In other sense the enterprise of law is the norm. Different legal jurisdictions are already offering different services and so there exists competition. Sadly, of course, much of the competition is between adjudicating agencies that offer not just different levels of efficiency and competence but, actually, fundamentally different goods.
Some are in the business of providing what is pretty close to a just adjudicative and punitive service, while others are offering subjective, arbitrary decisions and services. But we can easily imagine this to be different, so that the competition involved ensues among agencies that could well all be aiming for just resolutions.
So it seems that what we have in the enterprise of law approach to the nature of a legal order is either flawed or redundant.
Whats Left of Government?
Political theorists, as other scholars, tend to speak without much passion, at least not in their scholarly works. So it would be difficult to point to patriotism in libertarian political writings, not unlike in the works of socialists or conservatives. Feelings are usual expressed and detected in rhetorical and polemical presentations, not in scholarship.
Still, if one considers that legal orders served by a particular legal administration, a government, can command loyalty and even admiration for example, because of the constitution that underlies it and its excellent leadership -- patriotism could be a well deserved attitude toward it. But, as noted earlier, there is no room in libertarian politics for attitudes expressed by slogans such as “Ask not what your country can do for you -- ask what you can do for your country.” No, just the reverse is our imperative as citizens. Just consider admonishing patients, “Ask what you doctor can do for you -- ask what you can do for your doctor.”
Yet, the loyalty, gratitude and admiration due those who serve one would by no means be diminished. They would simply be resting on more candid grounds.