Klinging to the State
February 7, 2010
Arnold Kling writes,
Does the state have necessary functions?
I believe that it does, but I am not sure. I am strongly inclined to believe that unless we agree to have an ultimate arbiter of disputes, the equilibrium is what North, Weingast, and Wallis call “the natural state,” in which a coalition of violent gangs extorts from the general public and shares the loot.
So, Arnold, you would describe our current situation as one in which there is not a coalition of violent gangs that extorts from the general public and shares the loot? I’m not so sure that it can be described as anything but that.
Our imperfect democracy, or “open-access order” in NWW’s terminology, is far from perfect, but it allows more people to have more opportunity to hold onto more of the wealth that they create.
Compared to what? Anarchy? Why?
But I want to return to the larger point Kling is making: that despite all of the other things we can somehow manage to accomplish without the state (Kling lists “education, income security, police and fire protection, etc.”), we’re likely to hit a wall when it comes to arbitration. We need a final arbiter.
I find minarchists to be more frustrating at times than more total statists because they grok the state just enough make the aspects they cling to that much more flabbergasting. At least full-on statists are consistently comfortable with forcibly maintained monopolies over functions of the legal order.
For Arnold Kling, it is the legal function of arbitration or, more specifically, the judicial function that just screams state. Roderick Long, an anarchist, sums up the complaint:
Many…have defended a stateless legal order, or “free-market anarchy,” in which such traditionally governmental services as protection of rights and adjudication of disputes are provided via market competition with no monopolistic central authority. A frequent criticism of such an arrangement is that it lacks a final authority to resolve disputes. Without such an authority, what guarantees that disagreements will be resolved peacefully rather than triggering violent conflict? And how can a dispute ever be brought to a close if there is no final court of appeal, beyond which no further appeal is possible?
But Long does more than just describe the problem; he shows why it does not convince anarchists.
The proper answer to such questions, I think, is to ask what guarantees the peaceful resolution of disputes under a government? Suppose you and I have a dispute, and the court rules in your favour. I can appeal the ruling to a higher court; but suppose I reach the highest court of appeal, and it too rules against me. Is that the end of the matter? It may or may not be, depending on what I choose to do next. I can petition the legislature to pass a law reversing the court’s decision, or to appoint judges friendlier to my point of view; or I can try to foment a revolution to overthrow the government. There are plenty of options available to me; in that sense, no legal system, whether governmental or anarchic, can guarantee absolute legal finality. To be sure, many of my options involve a lot of hard work and are unlikely to be successful, and so I probably won’t bother to pursue them; in that sense, governments can provide reasonably reliable legal finality – but now there’s no reason to suppose that anarchies can’t do so as well.
So Klings argument that we must have one is betrayed by the fact that we don’t actually have one now despite the apparent success our “imperfect democracy” has with protecting wealth. That should be enough to put this to rest but here Kling is likely to bite the bullet and remind anarchists that his complaint is not that anarchies can’t lead to “close enough” legal resolution but that it will be an undesirable – dare I say chaotic and violent – process. Indeed, his reference to “a coalition of violent gangs” seems to be making exactly this point: that there are not civilized limitations on the providers of judicial services. The implication here is that this hypothetical agreement – a constitution perhaps – will provide that necessary limitation. Again, Long is ready for that one:
Defenders of government often complain that under anarchy, providers of legal services are not themselves subject to legal limitation, whereas under a constitutional government, the monopoly provider of legal services is limited by the constitution. But presumably a mere written document is not sufficient to limit the government’s power; what’s needed are actual institutional structures. But these sorts of constitutional restraints, such as checks and balances and divided powers, do not exist in their own right, as external limitations on society as a whole; on the contrary, they exist only insofar as they are maintained in existence by human beings acting in systematic ways. Hence they are just as available under anarchy as under government – more available, in fact, since a system that allows free entry into the market for legal services is obviously going to have more effective checks and balances than a system that monopolizes such services. As the anarchist Gustav Landauer once wrote: “The state is a relationship between human beings, a way by which people relate to one another; and one destroys it by entering into other relationships, by behaving differently to one another.” When Hobbesians worry that people won’t be able to cooperate without a government, they forget that government is not some sort of automatic robot standing outside the social order it serves; its existence too depends on ongoing cooperation, both from the members of the government and from the populace it governs.
Long tells us what is going on with the opponent of anarchism that leads to this error:
The opponent of anarchy has thus fallen into the same error as the one Wittgenstein diagnoses in his rule-following paradox: the error of supposing the possibility, and/or the necessity, of a self-applying rule. Just as one may initially be thrown into intellectual vertigo by the failure to locate some mental item that all by itself guarantees its own meaning regardless of how one goes about applying it in practice, so the opponent of anarchy is thrown into vertigo at the thought of a legal system lacking any component that all by itself guarantees social order regardless of how it is applied by human agents. Just as it’s tempting to think that my grasp of a rule is something independent of my actions, something that makes me behave in a certain way, so it’s equally tempting to think that a society’s legal system is something external to that society that makes it orderly. But as the rule-following paradox shows, there couldn’t be any such self-applying entity; and since individuals do manage to follow rules pretty well most of the time – and since societies do likewise manage to maintain order pretty well most of the time – the absence of such a self-applying entity is no problem at all.
Besides showing the anarchist why he is not making this error, there are several questions that Kling must address if he is to convince the anarchist:
- What happens if you have a dispute with the state’s final arbiter?
- If the answer to that is multiple branches of government, how is that not saying that it is to the degree that the state is more anarchistic that it functions better in those cases?
- Also, to paraphrase a quip in one of Long’s lectures, how encouraged should we be if we have a dispute with the marketing department of GM only to find that the matter would be settled by GM’s legal department?
- What fundamentally makes the judicial function different from the other aspects of government that Kling has admitted can function through a market?
Kling ends his post with an open mind:
Overall, I think my views may not be far from Rothbard’s, but I am far more intellectually cautious. I am aware that I have changed my mind over the years, which suggests that I could be persuaded to do so again.
So, Arnold, if you had not seen these arguments against forcibly-maintained judicial monopoly before, are you persuaded to change your mind? If you have seen them, what keeps you from jettisoning this baggage?
A comment on Kling’s post shows another extremely lame argument against anarchy:
As much as I’m sympathetic to what anarchists would like to achieve in banishing central government, there are nonetheless reasons why central governments and countries have existed for many thousands of years. Wishing it wasn’t so won’t change things.
Really? Your argument for the state is that it is inevitable? If that is the best the supporters of the state have, the state is in bad shape indeed. Besides being the fallacy of appeal to tradition, this comment demonstrates that the author does not understand the different between a normative argument and prediction. It’s also a bit strange to think that all anarchists are doing is wishing it away. What would he have us do? Just submit, I suppose. And what are the reasons states still exist? He does not say, though he means “because anarchy does not work”. But why could it not be a host of other reasons? Here is a list of other inevitable things that nonetheless have great normative arguments against them:
- Child Abuse
Need I go on? And, no, I don’t think I’m begging the question to list things widely held as evil. I don’t have to presuppose that the state is evil to show why appeal to tradition is a fallacy.