Who Said Anything About Legitimacy?: A Long-Winded Reply to Brainpolice and Michael

Over on the Polycentric Order blog, Brainpolice has written up a response to my post rejecting the simple argument that taxation is theft. In the comments section of that earlier post, a fellow identifying himself as "Michaek" (which I assume to be a typo-ed "Michael") also left some remarks in disagreement with my arguments. I wanted to offer some thoughts on what both had to say, and will do so in this post. There are a number of themes running through the commenters' responses, and I will do my best to isolate them and address them separately. They are: a) There is a double standard problem in supposing that government officials can justify doing things which no ordinary person would be justified in doing; b) My goal is to offer a blanket justification for the State; c) I do not offer a coherent account of why a government should have any claim to its territory; and d) By arguing that the government has some claim to its territory, I am presupposing that the government is a legitimate institution without offering a compelling reason for thinking this.

I. There is a double standard problem in supposing that government officials can justify doing things which no ordinary person would be justified in doing

Brainpolice started his reply with the idea that our commonsense moral beliefs would lead us to condemn many of the kinds of things done by state agents if they were done by ordinary citizens. But as collective decision making power is centralized and expanded, people come to embrace a double standard between themselves and state officials. This leads them to condone actions on the part of state officials which they would decry if performed by ordinary citizens. Brainpolice therefore explains that the libertarian position is that state officials do not gain new rights as a result of their positions, and that if these rights are to be ascribed to them, the burden of proof should be on those who are invoking new rights, and not on those who simply insist that our commonsense ethical beliefs be universally applied. He writes:

...given certain nearly universal social norms (such as the shunning of murder, theft, arson, rape and kidnapping), if one wants to be consistant with those norms then one must aknowledge the degree to which the state contradicts those norms...

Now, one possible response is discussed by Lester Hunt in his essay, "Why the State Needs to be Justified":

Of course, someone might say, there is a sense in which our intuitive, pre-theoretical use of our moral ideas clashes with our intuitive, pre-theoretical application of our political ideas. When I think about myself, my next-door neighbor, or my uncle Harry, I think that, whenever any one of us promotes his or her goals by using coercion against someone who is not bothering anybody, we are doing wrong. When I think about a tax collector or an immigration official, I think pre-reflectively that they are right to go after the tax-evader and the Mexican immigrant, even though the tax evader and the Mexican are not bothering anybody. I think of the immigration official as if they were on a different plane from me, from my neighbor, from my uncle Harry. But why isn’t each way of thinking perfectly okay, on its own plane?

Like Hunt, I do not accept this kind of argument. So up front, here it is: I acknowledge that in many instances, the agents of the state do things which are completely impermissible by any coherent moral standard. The fact that they often get a pass simply because of their position is inexcusable. I don't think anything I said in my earlier post suggests that I believe that government officials deserve different kinds of treatment, but it bears repeating that moral standards are based on treating people the way that they deserve, and they don't deserve anything less when the person on the other end is wearing a uniform.

II. My goal is to provide a blanket justification for the State

This next point appears in both commenters' counterarguments, and focuses on the idea that I'm somehow trying to offer a blanket justification for "the State" or "a State." But there's an important point to be made here: I'm not trying to "prove" that any State is legitimate. What I'm saying is that in communities where the central decision-making apparatus is widely embraced, and where libertarians have moved into those communities by their own volition, it's not clear that they have a very strong case to back up their claims that they are being robbed through taxes.

Things would be very different, I think, if the members of a community generally did not approve of its government apparatus, and wanted to dissolve it. In such a situation, I think it would be reasonable for the community to ask for separation from the overarching State system, and I think that it would be appropriate for the State to grant that separation. I think it's incompatible with the attitude of respect for others' individuality and a full recognition of the fact of reasonable pluralism to seek to control of groups of others who do not want to be associated with you. In the same way, it would be inappropriate for the State to want to follow an individual out into the forest and to demand continued participation in the face of dissent, as I suggested in my original post.

But as Brainpolice points out:

...the "love it or leave it" argument is an epic fail because it presumes the legitimacy of the territorial dominion to begin with. It does nothing to explain why the state has such an arbitrary claim and why the individual must leave the state's dominion rather than the state leaving the individual's dominion.

If I think that the State should allow communities to secede without leaving their established locations, and that the justification for this applies equally to individuals, then it would remain to be explained why I don't think that individuals should be able to secede from their communities without leaving their existing land property. And on this I concede, if an individual wanted to secede from her community, it would be inappropriate for the community to demand that she stay involved, or leave the town. However, it's important to acknowledge what this would entail. The community, I think, would be perfectly justified in insisting that their new territorial boundaries be respected, and that the seceding individual confine herself to her own property. So if someone wanted to separate from the community and to live on her own without leaving her land, the community would ostensibly be justified in confining her there. It seems much more reasonable to think that a person would be best suited by simply leaving, and trading her land to someone who would like to be a part of the community.

III. I do not offer any coherent account of why a government should have any claim to its territory

But on what basis can centrally ordered communities justify their collectivistic existences in the first place? Brainpolice argues that:

...one must put foreward at least something resembling a theory or meta-theory of property in order to examine and explain the state's territorial claim and the individual's claim, and one must put foreward a theory of how states form (and not just some mythical fantasy). How did the state really acquire all this land, or didn't it? How would and individual or group manage to acquire an entire country? Endless absurdities arise in the attempt to legitimize this territorial claim.

Is it so absurd, though, to suppose that in an incorporated town or city which was established by charter (as, it is my impression, most towns and cities are), and which is populated by people who freely acknowledge their membership in their community, that the method of governance explicitly set out in the charter by which the community was established is an acceptable way for the community to administrate its affairs? It sounds like what Brainpolice is looking for is a theory of legitimate original appropriation which would allow a town or city to be considered the just holder of its territory. But as others have pointed out, there is no bulletproof theory of legitimate original appropriation for individuals, much less groups. The specific form taken by a society's institutions ultimately must be defined by the way that people choose to live together in a given community or region. Property rights give us a tool for determining who gets the right of way with regard to the use of certain resources. They allow us to say, "This belongs to me, so leave it alone." But they also allow us to say, "This is ours, and this is how it is to be used." As David Schmidtz writes in his essay, "The Institution of Property":

Private property...is the preeminent vehicle for turning negative sum commons into positive sum property regimes. However, it is not the only way. Evidently, it is not always the best way, either. Public property is ubiquitous, and it is not only rapacious governments and mad ideologues who create it. Sometimes it evolves spontaneously as a response to real problems, enabling people to remove a resource from an unregulated commons and collectively take responsibility for its management.

It seems reasonable to me that in the case of a chartered town or city, there is a pretty clear social convention which says that when the town or city was incorporated by its original settlers, the territory on which the settlement existed was to be administered as a municipality. And that's how the people who have lived in that territory ever since have chosen to live together. Surely, as I alluded to in my earlier post, there are good reasons to question whether this is really a wise way to do things. But that doesn't eliminate the fact that it's the dominant form of social organization in our present society. And once a set of institutions becomes generally accepted as the way things are done, then that's just that. There's no mysterious "social contract," to be sure, but rather a strong and widely accepted "social convention,"established by the community's first settlers and passed down to its current constituents. It's much the same principle that says that even though in America, a lot of the land people currently live on was violently expropriated from the Native Americans, today's society is governed by a set of conventions which recognize the current holders of that land as having a rightful claim to it, and that's the end of the discussion. It's just the way things are done.

IV. By arguing that the government has some claim to its territory, I am presupposing that the government is a legitimate institution without offering a compelling reason for thinking this

It's here that Michael's main objection comes to the fore:

The way I see it, the "love it or leave it" argument is circular: if we're trying to prove the legitimacy of the State, we cannot simply assume it to be legitimate. In asserting that libertarians must leave if they don't like the government, statists are assuming that the State's claim to territory is legitimate; but this is exactly what they have to prove!

So why am I starting with the idea that governments are legitimate institutions? Precisely because most people think that they are. I ask my readers to keep in mind that I'm a libertarian, and certainly don't think that the way that most societies are run is appropriate. But a whole lot of people out there think that they live in a perfectly healthy society, and that their existing institutions are just fine. Why, then, would we want to fundamentally disturb their lives by forcing them to swallow our particular brand of freedom? Ultimately, the sense in which someone is free is at least partly impacted by what he is free to do. And for a lot of people, the best use of their freedom would be to get on with their lives and not have to deal with the radical social change that would be precipitated by the dissolution of the state. To the extent that people are generally happy with the way things are, the status quo is an acceptable way to run things.

It's when people insist that everyone live the way that they want to live that I start to object. But that goes both ways! Libertarians who insist that loyal citizens must disband their governments are in a lot of ways just as bad as the statists to whom they're responding. Statists should feel no need to control the way that libertarians want to live their lives, and so if libertarians want to go establish a community somewhere according to their own ideals, that should be totally fine -- we shouldn't have to move to Somalia to do it. But libertarians also shouldn't want to control the way that statists live their lives. If the statists want to have centrally organized communities, where rents are collected in order to sponsor public programs, they should be able to do that.

So hopefully this extremely lengthy response has been helpful and thought-provoking. If not, sorry for putting you through it. I look forward to any further comments anyone may have!