A detailed libertarian critique of electoral voting is long overdue. Political libertarians (i.e., those who support the effort to elect libertarians to political office) are usually silent on the moral implications of electoral voting. When challenged, they typically dismiss moral objections out of hand, as if the voluntaryist (i.e., anti-voting) case deserved nothing more than a cursory reply.
This situation will probably change in the near future. The issues raised in voluntaryist arguments are far too important to be discarded without careful consideration, even if one ultimately rejects voluntaryist conclusions. This is especially true for those political anarchists (if I may use that curious phrase) who support the Libertarian Party. If it is at least comprehensible why minarchists (advocates of minimal government) support a political party, the spectacle of political anarchists is far more perplexing. Hence this essay (to be continued in subsequent issues of The Voluntaryist ) is directed primarily at political anarchists, though some of the material is relevant to minarchists as well.
The purpose of this essay is to explore the moral implications of libertarians (especially anarchists) holding political office, running for political office, or assisting those who do — primarily through the vote. The ethics of voting cannot be divorced from the key question of what one is voting for. And this, as I shall argue, cannot be divorced from the institutional framework in which the voting occurs.
This essay is directed to fellow libertarians who are familiar with the standard debates in contemporary libertarianism, such as that between minarchism and anarchism. I must also assume that the reader is generally familiar with the basic approach of voluntaryism. (if not, my essay Party Dialogue should be consulted, along with the other essays in “The Voluntaryist Series.”) Moreover, standard terms in the libertarian lexicon — e.g., “invasion” and “aggression” (which I use synonymously) — are not defined in this essay. Here again standard libertarian works should be consulted, such as various books and essays by Murray Rothbard. A term that may generate some confusion is “electoral voting.” This means voting for the purpose of placing someone in a political office. It does not refer to other kinds of political voting, such as voting on particular issues in a referendum. (This requires a somewhat different analysis.) Hereafter, unless otherwise noted, the simple term “voting” shall be used to mean “electoral voting.”
Since this essay is to appear in installments, I must beg reader’s pardon if some problems remain unsolved atthe conclusion of each part. The theory of voting has been so neglected that it is difficult to explore its moral implications without first laying a good deal of preliminary groundwork. Some pro-voting arguments are based on different premises and actually clash with each other when employed by the same person. Other pro-voting arguments appear decisive, but they retain this appearance at the expense not only of voluntaryism, but of principles common to all libertarian theories (especially anarchism). These “kamikaze arguments” attack voluntaryism by undercutting the foundations of libertarian political analysis, thus exploding political arguments later.) For one libertarian to use a kamikaze argument against another libertarian is somewhat indelicate, to say the least.
The theory of voting should be investigated within a broad framework of political and legal theory. This plunges us into complex and troublesome areas, like principal-agent relationships, accessories before the fact, aiders and abettors of crime, and so forth. I do not presume to have solved the problems these concepts create for libertarian theory, but libertarianism undeniably depends on some notion of accountability for persons other than those directly involved in criminal (i.e., aggressive) acts.
Libertarians generally agree that the driver of a getaway car is liable for a bank robbery, even if he did not personally wield a gun or threaten force. Similarly, we hold legislators accountable for their unjust laws, political executives accountable for their unjust directives, and judges accountable for their unjust decisions. We do not exonerate these individuals just because they legitimize their actions under the “mask of law.” Yet political and bureaucratic personnel rarely participate in law enforcement; they do not strap on guns and apprehend violators. This is left to the police.
Clearly, therefore, the libertarian (anarchist) condemnation of the State as a criminal gang rests on the view that criminal liability can extend beyond the person who uses, or threatens to use, invasive force. Most of the individuals in government, though not directly involved in aggression, nevertheless “aid and abet” this process. Libertarian theory would be irreparably crippled without this presumption. If criminal accountability is restricted only to direct aggressors, then the vast majority of individuals in the State apparatus, including those at the highest levels of decision-making, must be considered nonaggressors by libertarian standards and hence totally innocent. We could not even regard Hitler or Stalin as aggressors, so long as they did not personally enforce their monstrous orders. The only condemnable persons would be in the police, military, and in other groups assigned to the enforcement of state decrees. All others would be legally innocent (though we might regard them as morally culpable).
Few libertarians are willing to accept this bizarre conclusion, but it automatically follows if we refuse to incorporate within libertarian theory some idea of “vicarious liability” defined by Black’s Law Dictionary as “indirect legal responsibility; for example, the liability of … a principal for torts and contracts of agents”).
Libertarian theorists have virtually ignored vicarious liability in three respects: first, they have rarely acknowledged it as an implicit underpinning in the libertarian (especially anarchist) analysis of the State; second, they have neglected to provide a thorough study and justification of it; third (and most relevant to this discussion), they have not examined its implications for the theory of voting.
I shall not attempt to defend a theory of vicarious liability here, despite the crucial need for such a defense. Because I am addressing fellow libertarians — most of whom accept some version of this principle — I shall accept vicarious liability as a given within libertarian theory and proceed from this foundation. ibertarian theory in general, and anarchist theory in particular, would tread perilously close to incoherence without this presumption. Given this fact, it follows that voters, in some cases at least, are deemed accountable by libertarians for the results of their votes (e.g., legislators who vote for victimless crime laws). And this liability attaches despite the fact that the voters do not directly engage in aggression or explicit threats of aggression. It is incongruous, therefore, for a political libertarian to profess bewilderment that even a prima facie case against voting may exist, on the ground that voting is obviously a nonaggressive act. If voting per se is deemed nonaggressive, if the voter is never accountable for what occurs afterwards, then this attack on vicarious liability succeeds in smashing voluntaryism at the considerable expense of rendering incoherent the libertarian analysis of the State. Thus do kamikaze arguments “succeed”.
The libertarian who seriously believes that voting is always nonaggressive — “How,” he asks, “can pulling a lever in a voting booth constitute aggression?” — is led by his own logic to conclude that voting for any candidate is permissible by libertarian standards, regardless of what the aspiring politician promises to do while in office. A candidate might promise to imprison all redheads in slave labor camps, or to order the execution of all Catholics on sight. But on a strict nonaccountability theory of voting, the voters who placed these politicians in office are in no way liable for their criminal acts. And since — as political libertarians like to remind us — libertarian theory forbids only aggressive acts, there would be nothing inconsistent in a libertarian voting for these power-seekers, because all voting, by definition, is nonaggressive.
Moreover, the successful libertarian politician would find it impossible, qua office holder, to violate libertarian principles while in office. If voting is never aggressive, then the libertarian legislator can never be aggressive (and hence unlibertarian) regardless of what he votes for. Would a libertarian legislator who voted for a draft be regarded by members of the Libertarian Party as having acted contrary to libertarian principle? Most certainly. But if libertarianism forbids aggressive acts only, and if voting can never be an aggressive act, then in no sense can the pro-draft legislator be accused of behaving in an anti-libertarian fashion.
Political libertarians who endorse a non-accountability theory of voting will have to grapple with its many paradoxes. After its implications are understood, it is unlikely to find many defenders. Some political libertarians already concede that a voter may be accountable. For example, Jeff Hummel, a prominent anarchist and supporter of the LP, maintains that “any legislator who votes for an unjust law is … in fact one of the actual aggressors!” (Free Texas, Fall, 1981). Does this argument extend a step further back? Do voters who place these politicians in power share liability for the resulting injustice? Unfortunately, this is one crucial question among many on which political libertarians remain silent.
I have argued briefly that the voluntaryist case against political voting cannot be dismissed as prima facie absurd by political libertarians. This is because political libertarians share with voluntaryists a theory of vicarious liability on which the case against voting is built. (see p. 7 of manuscript) Deny vicarious liability … and political libertarians will be hard-pressed to retrieve their own theory from the wreckage strewn about by their kamikaze attack.
Of course, to establish the prima facie possibility of the voluntaryist case does not cinch the argument. Many more arguments and principles need to be considered. But we have at least cleared a path along which the rest of this article may travel.
2. The Burden of Proof
Before proceeding to an analysis of electoral voting and the arguments pro and con, it may prove helpful to establish some procedural guidelines. Foremost in any argument is the burden of proof. Who assumes the burden of proof in a given dispute? Which side must produce the preponderance of evidence and/or arguments in order to resolve the case? Most important, if the responsible party fails to meet the burden of proof, then what is the status of the dispute?
In the voting debate, it is usually assumed that the burden of proof rests with the voluntaryist, i.e., the opponent of voting. If the voluntaryist claims that voting is inconsistent with libertarianism or anarchism, then he must substantiate his claim. He must show that electoral voting actually falls within the category of actions known as “Invasive” or “aggressive.” Failure to accomplish this acquits the political libertarian, or the political anarchist, of all charges.
This procedure seems reasonable. To condemn voting as improper is a serious charge, after all, and it appears that the voluntaryist should assume the burden of proof if he expects to be taken seriously. We see a parallel in legal theory, where a man is presumed innocent until this presumption is “defeated,” i.e., until the defendant is proven guilty beyond a reasonable doubt. The legal presumption of innocence determines where the burden of proof rests. Failure to provide sufficient proof means that the presumption remains where it began: the defendant is innocent.
The legal analogy is accurate in one respect. It points out that the burden of proof is fixed according to the basic presumption of an argument. If, as we have seen, an accused man is presumed innocent, then the onus falls upon his accuser to defeat this presumption. A presumption functions as the starting point in a dispute.
From the legal analogy, however, it does not follow automatically that the political libertarian is analogous to the defendant, and thus it does not follow that the burden of proof lies entirely upon the voluntaryist. Indeed, in dealing with anarchism – the principled rejection of the State — I maintain that there is a presumption against political office-holding and therefore a presumption against voting for political office. Thus the political anarchist is the one who must defeat the basic presumption. When two anarchists debate the ethics of voting, it is the political anarchist who assumes the major burden of proof. It is the political anarchist who must demonstrate to the voluntaryist why voting — an overt participation in the political process — is not a violation of their common anarchist principles. Let us examine this claim in more detail.
Voluntaryists are more than libertarians; they are libertarian anarchists. They reject the institution of the state totally, and it is this element that is not contained (explicitly, at least) within libertarianism. Libertarian theory condemns invasive (rights-violating) acts and says that all human interaction should be voluntary. All libertarians, whether minarchists or anarchists, accept this. It is the defining characteristic of a libertarian.
Libertarian anarchism professes not only the nonaggression principle, but the additional view that the State is necessarily invasive and should thus stand condemned. Libertarian anarchism combines the libertarian principle of nonaggression with a particular analysis of the State — an analysis not shared by libertarian minarchists. It is the premise of nonaggression, coupled with an institutional analysis of the State, that leads to the rejection of the State by the anarchist as inconsistent with libertarian principles.
The above reference to “institutional analysis” is critical. One cannot progress from libertarianism to anarchism without an intervening argument. A principled rejection of the State does not necessarily follow from the nonaggression principle, unless one can also show that the State is necessarily aggressive. This latter point — the anarchist insight into the nature of the State — is the minor premise required to justify anarchism:
Major premise: Libertarian theory condemns all invasive acts. Minor premise: All States commit invasive acts. Conclusion: Libertarian theory condemns all States (or governments — I use the terms interchangeably).
This syllogism illustrates the difference between simple libertarianism (articulated in the major premise) and libertarian anarchism (articulated in the conclusion). The transition to anarchism is realized through the anarchist insight (articulated in the minor premise). This insight is what all libertarian anarchists share with fellow anarchists. It is also what distinguishes libertarian anarchists from their minarchist cousins.
Minarchists qualify as authentic libertarians so long as they believe it possible for their minimal State to remain nonaggressive. The minarchist, like the anarchist, accepts the nonaggression principle; but the minarchist does not accept the anarchist view of the State. This controversy over the minor premise leads to different applications of the nonaggression principle to the State. (Whether this stems from a definitional dispute or from something more substantial need not concern us here.)
The minarchist issues a challenge to all libertarian anarchists, political and voluntaryist alike: “Prove that all governments are invasive. Demonstrate that the State, by its very nature, must violate individual rights.” The anarchist responds, as indicated earlier, with an institutional analysis of the State. He avers that institutional features of the State, such as the claim of sovereign jurisdiction over a given geographical area, render the State invasive per se. This invasive trait persists regardless of who occupies positions of power in the State or what their individual purposes may be. The anarchist insight, in order words, is not arrived at inductively. The anarchist does not investigate every employee of every State, determine each individual to be an aggressor, and then generalize from the individual to the institution. On the contrary, the State is assessed first, qua institution, according to constant structural features inhering in all governments. This institutional analysis leads to the anarchist insight, after which particular individuals within the State are considered to be part of a “criminal gang” owing to their participation in the exercise of State power.
To put it another way: for anarchism, the individual does not taint the institution; rather, the institution taints the individuals who work within it. It is because the nature of the State as an institution renders it irredeemably invasive that we condemn particular offices within the State apparatus, and hence particular individuals who occupy those offices. Such individuals “aid and abet” State injustice, even though they may not personally commit aggressive acts.
It is necessary to understand that the institutional analysis sketched here is vital to all theories of anarchism, including political anarchism. This kind of institutional analysis must be valid if anarchism is to have a solid footing. It is simply impossible for anarchists to derive anarchism from the inductive method described above. It is patently impossible to examine the personal motives and goals of all individuals who comprise “the State” before we can pass judgment on the State itself. In addition, if this research were undertaken, we would find that the vast majority of State employees never intend to aggress against others, nor do they participate directly in aggressive acts. The inductive method never permits us to bridge the gap between individuals and institutions. Indeed, from a purely inductive perspective, there is no “State.” Only individuals exist and act; there are no institutions. The State, then, is a fiction, and it is nonsense to refer to the “State” as “invasive” or “aggressive.” Only individuals can invade or aggress; and although some individuals within that organization we call the “State” may personally aggress, the vast majority do not. To condemn the State per se, therefore, as the anarchist wishes to do — and by implication to condemn all individuals within the State — is flagrantly unjust. It is to besmirch the good names of innumerable State employees who never personally engage in aggression.
This methodological objection to anarchism is important, and anarchists, as I have indicated, will be unable to respond adequately unless they defend the approach I have described as institutional analysis. The coherence of anarchism as a theory hangs on this kind of analysis.
Why is this relevant to the debate over voting? Because it illustrates that the presumption, and therefore the burden of proof, varies according to whether the voluntaryist addresses a minarchist or a political anarchist. Since the minarchist need not adopt an institutional analysis, he will not view the fact that an individual is an agent of the State as even prima facie evidence of improper conduct. There is, for the minarchist, no moral “curse” on the State as such, which then filters down to individuals within the State. Working for the State, in other words, does not constitute a presumption of guilt. The individual is presumed “innocent” until proven otherwise, despite his institutional affiliations.
This is why the minarchist is a difficult convert to voluntaryism. Usually the minarchist must be brought first to anarchism, which requires that he accept an institutional analysis of the State, and only then to voluntaryism. The procedural chasm dividing voluntaryists from minarchists is so wide that this intermediate step is ordinarily required. The burden of proof falls upon the anarchist to establish the soundness of this intermediate step.
But the situation changes when the voluntaryist addresses a political anarchist. Here the anarchist insight — the recognition of the State per se as an invasive institution — is agreed upon by all parties before the argument over voting even commences. Both disputants utilized institutional analysis in order to arrive at their current positions. It is plainly inconsistent, therefore, for the political anarchist to reject voluntaryism because it employs institutional analysis. It borders on hypocrisy for the political anarchist to fall back upon the personal intentions of his favorite politicians in order to save them from the anarchist curse, when he has traveled merrily down the anarchist road without ever having regarded personal intentions as significant before this point. If an institutional analysis of the State is good enough to get us to anarchism, then it is good enough to get us to voluntaryism. Institutional analysis is not a bridge that can be conveniently burned by the political anarchist after he has used it to cross over to anarchism.
It is because of their common acceptance of the anarchist insight that the initial presumption shifts in favor of the voluntaryist. The voluntaryist and the political anarchist agree that the State is inherently aggressive. From this it follows that anyone who voluntarily joins the State — who campaigns for office, receives a salary, swears allegiance to the State, and so forth — is at least highly suspect from an anarchist point of view. There is a presumption, a prima facie case, against the political office-holder in anarchist theory (and thus against voting for a political office). The burden then falls not upon the voluntaryist to show how this office-holder participates in aggression — for both disputants already agree that the State is inherently aggressive and both accept vicarious liability — but upon the political anarchist to show how his favorite office-holder constitutes a valid exception to the general condemnation (the anarchist curse) of the State and its agents.
Anarchists agree that the State is necessarily aggressive, which is why they commonly use terms like “criminal gang” and “ruling class” to describe the State. But anarchists also realize that the State is not a disembodied entity. Institutions are not individuals; they cannot act in any fashion, much less act aggressively. Thus, if the anarchist analysis of the State is to have meaning, it must refer to individuals who work within the structure of the State apparatus. Individuals and their actions, considered within a broader institutional framework (prescribed goals, rules, and procedures), combine to form what anarchists mean by the State. Particular offices within the State, and the individuals who occupy those offices, are assessed according to their importance in directing, supporting, and furthering the institutionalized goals of State power.
It is because anarchists regard the State as inherently aggressive that there exists a presumption among anarchists that anyone who joins the State participates in this aggression. The anarchist curse — the presumption of evil — descends from the condemned institution to the individuals who are necessary to maintain the life of that institution. The institution is the skeleton, in effect, which requires the flesh and blood of real people to operate. These people are highly suspect in anarchist eyes, even if they do not personally aggress, because they are the components required to translate the institutional aggression of the State into concrete reality.
The anarchist presumption against agents of the State, like all presumptions, is defeasible. It may be that the political anarchist can argue for a valid exception to the general rule. He may be able to explain why we should regard all politicians as members of a criminal gang, except those politicians with “good” (i.e., libertarian) intentions. Personal intentions were not previously considered relevant to the anarchist analysis of the State, but the political anarchist may have uncovered new information that will convince his voluntaryist colleague. The political anarchist may thus be able to overcome the presumption, the anarchist curse, that makes his case seem initially implausible. (The idea of an “anarchist politician” does seem counter-intuitive at best.)
In our dispute between the voluntaryist and the political anarchist, therefore, the presumption is on the side of voluntaryism, and the political anarchist assumes the burden of proof. Anarchists of all persuasions have traditionally rejected electoral politics, and with good reason. This seems, after all, to be an essential part of what anarchism means. This is why I wrote in Party Dialogue (“The Voluntaryist Series,” no. 1) that “libertarianism must stand firm against all Senators, all Presidents, and so forth, because these offices and the legal power they embody are indispensable features of the State apparatus. After all, what can it possibly mean to oppose the State unless one opposes particular offices and institutions in which State power manifests itself? ”
With the preceding introduction material, we are now able to undertake a systematic analysis of voting. Some of the issues discussed thus far raise problems far too complex to be resolved without further discussion. These will be addressed in more detail in subsequent parts of this essay.
3. Institutional Analysis
I have argued that institutional analysis is essential not only to the voluntaryist critique of electoral voting, but to anarchist theory generally. Anarchism combines the nonaggression principle with an institutional view of the State, resulting in the principled rejection of the State on libertarian grounds. For the concept of “anarchism” to be meaningful, the concept of the “State” must also be meaningful. Anarchism presupposes that the State can be defined in theory and identified in practice. The State must possess distinctive features which enable us to differentiate it from other kinds of human association; and there must be criteria by which we can distinguish members from nonmembers (a significant issue, as we shall see).
In addition, the anarchist rejection of the State is usually based on moral arguments. This carries institutional analysis from the descriptive realm to the normative realm, for we are now concerned with how moral evaluation applies within an institutional framework. If, as anarchists claim, the State is invasive per se and therefore inherently unjust, then what does this moral condemnation of an institution imply concerning those individuals who voluntarily become “members” of the State? Few anarchists restrict liability for the State’s criminal acts to direct aggressors only, i.e., to law enforcement personnel. Few anarchists exonerate dictators because they do not personally enforce their decrees. Indeed, anarchists often impute greatest liability to the highest levels of political decision-making (presidents, legislators, etc.), even though these levels are far removed from physical enforcement. (There were more condemnations of President Johnson during the Vietnam War than of individual bomber pilots.) This kind of moral analysis is understandable only within an institutional framework, where individuals are assessed according to their role in sustaining and implementing State injustice, however distant they may be from actual enforcement. Individual acts, in other words, are not judged in isolation, but within a broader context. Inevitably, as, I argued in Part One, this will entail some theory of vicarious liability. Anarchists must present a theory to explain how persons other than direct aggressors can be held accountable for criminal acts. We must explain, moreover, where liability ends and why.
These are not easy problems to solve, and they have been virtually ignored in libertarian literature, The result has been some rather wide gaps in anarchist theory, in which political anarchists have found it convenient to hide when under attack. When institutional analysis is used against the political anarchist, he will often object to this procedure as such (rather than to its particular application in his case) on the ground that institutional analysis, whether descriptive or normative, violates the time-honored libertarian principles of methodological individualism, value subjectivism, individual responsibility, and so forth. The political anarchist, of course, does not examine what these kamikaze arguments would do to his own profession of anarchism. He does not care to explain how, if institutional analysis is ruled out of court, it is possible even to state coherently what anarchism is, much less defend it. Even anarchists are afflicted with a strange blindness when they stoop to defend political power.
It is not my intention to argue for the use of institutional analysis within anarchist theory. I submit that it is already used extensively by political anarchists and voluntaryists alike, but that it usually lurks in the shadows, as if we are embarrassed to expose it to the light of day. It has a suspicious ancestry, this institutional analysis. It smacks of sociology, collectivism, holism, and other things generally repugnant to libertarians. Fear of contamination leads to a failure of nerve — there is, after all, the haunting possibility that anarchism itself will collapse if it rests on institutional analysis — so we go merrily about denouncing the “State” without specifying precisely which individuals constitute the State or how it is possible to pass moral judgment on an institution. (We have been somewhat fortunate that minarchist critics of anarchism have generally overlooked these vulnerable spots — but it is possible that they, too, succumb to institutional analysis.)
4. Describing Institutions
It is important to understand that institutional analysis, as here employed, does not contradict methodological individualism. It does not deny that only individuals act or that social phenomena are reducible to individual actions. One can speak meaningfully of institutions, associations, organizations, and so forth, without implying that these social phenomena enjoy an existence apart from individuals. Methodological individualists are not required to purge their vocabulary of terms like “family,” “church,” “state,” and “corporation.”
Indeed, staunch methodological individualists have used institutional analysis extensively as an explanatory tool. This is evident among Austrian economists who, despite their commitment to methodological individualism and value subjectivism, eagerly analyze free-market institutions (such as money) that result from human action but not from human design. “Institution,” an elusive term at best, is used here in a broad sense to designate a widely recognized and stabilized method of pursuing a social activity (exchange, in the case of money). It is possible conceptually to isolate some feature of social interaction and to study it abstracted from the particular individuals involved. Individual actors are presupposed in this procedure, but their specific identities are irrelevant to the outcome. Individual actors, within institutional analysis, are anonymous. The reason for this, as F.A. Hayek has argued, is because intentional actions have unintended consequences.
“The problems which (the social sciences) try to answer arise only in so far as the conscious action of many men produce undesigned results, in so far as regularities are observed which are not the result of anybody’s design. If social phenomena showed no order except in so far as they were consciously designed, there would indeed be no room for theoretical sciences of society and there would be, as is often argued, only problems of psychology. It is only in so far as some sort of order arises as a result of individual action but without being designed by any individual that a problem is raised which demands a theoretical explanation.”
(The Counter-Revolution of Science, Free Press, 1955, p. 39.)
It is possible to interpret Hayek to mean that only institutions which are themselves the product of spontaneous order are the proper subject of social theory. This would rule out designed institutions (often called associations), such as business organizations, fraternal clubs, and (most relevant to our purpose) modern States. But even these designed institutions exhibit many unintended consequences internally. An automobile factory is designed; its internal division of labor does not emerge spontaneously. The overall purpose guiding the design of an automobile factory is the efficient production of cars. But this may not be the purpose of many (or even most) factory workers. The machinist, the welder, the fitter, the warehouse foreman — these specialized roles can be filled even if the individuals concerned know or care very little about the overall product to which their labor contributes. The structure of a factory is designed, so we may speak of a factory’s “purpose” (i.e., the purpose of its designers). Yet the furtherance of this purpose may, from the perspective of the individual worker, be unintended. This is why it is perfectly correct to say that an individual (the factory worker) may contribute unintentionally to an institutional end (the production of cars).
The need for specialization leads to a division of labor, and this may be undesigned (as in society generally) or designed (as in business organizations). The division of labor in designed institutions (which I shall hereafter refer to as “associations”) leads to the institutionalization of labor or “roles,” to use a term common among sociologists. If a factory needs another welder, it seeks out a qualified individual to fill that role. It is possible to discuss the importance of the welder role in the overall production process without referring to any specific welder. We know, of course, that the disembodied role of welder does not actually weld anything; we always presuppose a flesh-and-blood human being who functions in that capacity. But the specific identity of the welder (his religion, personal characteristics, etc.) and his personal intentions (why he took the job) are immaterial to the successful accomplishment of the institutional end, so long as the welder satisfies the requirements of the role (i.e., “does his job”). This is what I mean when I say that the individual functioning in a role is presupposed but anonymous.
An institutional analysis of an automobile factory would examine roles within the factory, the efficient ordering of roles in relation to each other (which job should be done first? where is the best location within the plant for a particular job?), and the relation of these roles to the desired outcome (does the addition of a tape deck as standard equipment add too much to the car’s price?). We can speak meaningfully of the production process, the production result , and the contribution of roles to both process and result — even if these are unintended from the standpoint of individual workers. The welder may insist that his intention is to contribute to the building of boats — he may adamantly denounce cars as dangerous and swear his eternal hostility to them — but insofar as he fulfills the institutional role of automobile welder, we will insist that he does, in fact, contribute to the building of cars. This may be an unintended consequence of his actions, but it is a consequence nonetheless. (And we should keep in mind that “unintended” does not mean “unforeseeable.”)
Thus, institutional analysis examines individual actions not in isolation, but within the broader context of institutional roles. We can give a purely physical description of the welder’s actions; this is one kind of description. We can also give an institutional description of the welder’s actions; this is another kind of description — one that attempts to link the isolated action to a broader chain of actions performed by others within an association.
Many common terms cannot be grasped using physical descriptions. Such terms, including many political terms, must be defined institutionally. They can be understood only by relating them to the roles and procedures of an association. “Voting” is a pertinent example. Suppose that, in preparation for election day, I construct a “voting booth” in my backyard that is physically identical (within reason) to authorized voting booths located around the city. On election day I enter my booth and pull the appropriate levers. But have I voted? Obviously not. At most I have expressed a preference in a rather bizarre fashion. Unless a voting booth is authorized by the State, whatever goes on in the booth is not described as voting. The physical similarity between my action and real voting is irrelevant. What counts is the institutional framework in which the physical activity occurs. (We shall return to this in more detail in a later installment.)
Institutional analysis also permits us to understand the continuity of associations. The U.S. State, since is formal inception in 1789 (ratification of the Constitution), has undergone many turnovers in personnel. Moreover, it has expanded territorially and has experienced tremendous growth in its laws, regulations, and bureaucracy. But we still refer to it as the same State, and correctly so. This is because the basic structure of the State, including its Constitution, has remained fundamentally unchanged.
Before applying institutional analysis (descriptive) to the State in more detail, let us anticipate somewhat and touch on a problem created for ethical theory by institutional analysis.
5. Division of Labor and Moral Responsibility
The division of labor within associations creates an interesting and often frustrating problem of determining responsibility. We see this in modern States which, as they expand the range and intensity of their political power, have evolved complex and highly specialized internal functions. Attributing responsibility is especially difficult in democratic States, where locating the center(s) of power keeps political “scientists” busy arguing with each other. On the one side are defenders of “elite” theories, who see political power resting in the hands of a small group, or class. This class may be defined economically (e.g., Marxists) or politically (e.g., followers of Mosca and Pareto). On the other side are democratic pluralists (e.g., Robert Dahl) who believe there are many foci of power distributed throughout a democratic State. And there are defenders of various shades in between. (We may be thankful that few sophisticated theorists maintain any longer that political power rests in the hands of “the people.”)
Ralf Dahrendorf addresses the problem of responsibility and its connection to the division of labor in Class and Class Conflict in Industrial Society (Stanford, 1959, p. 297). “Like the division of labor in industrial production,” Dahrendorf notes, the division of labor in political power “has led to the creation of numerous specialist positions, every one of which bears but slight traces of the process of which it is a part.”
“Who produces the car in an automobile factory? The director? The fitter? The foreman? The typist? Every one of these questions has to be answered in the negative, and one might therefore be tempted to conclude that nobody produces the car at all. Yet the car is being produced, and we can certainly identify people who do not participate in its production.”
Dahrendorf applies this same reasoning to the pinpointing of responsibility in a bureaucracy:
“Nobody in particular seems to exercise ‘the authority’ and yet authority is exercised, and we can identify people who do not participate in its exercise. Thus the superficial impression of subordination in many minor bureaucratic roles must not deceive us. All bureaucratic roles are defined with reference to the total process of the exercise of authority to which they contribute to whatever small extent.”
Dahrendorf makes a point of great significance. It may be impossible in some cases to attribute exact responsibility for the exercise of political power. But the difficulty in apportioning responsibility within an association (the State, in this case) does not hinder our ability to separate those who are responsible from those who are not. We can discriminate, in other words, between association members and nonmembers. We can distinguish factory workers from nonworkers.
Similarly, we can usually distinguish members of the State from nonmembers. The President is obviously a member of the State; the factory worker is not. Between these extremes there are shades of gray. What about the executives of a munitions firm that survives entirely from government contracts? What about a mail carrier for the United States Postal Service? Such examples could be multiplied endlessly, and they pose even more problems when we examine totalitarian governments where the private sector is virtually nonexistent (except for the black market).
I shall address some of these problems at a later time. For now we should recognize that the presence of gray does not negate the existence of black and white. To ascertain a precise cutoff point may be troublesome, but this does not mean that the extremes are any less clear. Since the dispute within libertarianism concerns the election of libertarians to significant political offices at various levels, the determination of a cutoff point is not crucial to this analysis. We must first decide whether anarchists can in good conscience become overt members of the State congressmen, etc.); then we can attempt to clear up the fuzzy areas (working for the post office, state universities, etc.).
6. The Modern State
“To really understand the State,” wrote the anarchist Peter Kropotkin, one must “study it in its historical development” (The State: Its Historic Role, Haldeman-Julius, 1947, p. 7). This historical perspective teaches us that the State is a designed institution; it was forcibly imposed to accomplish specific objectives. By understanding these objectives, which have since become institutionalized, we are better able to understand the structure and internal functioning of States existing today. When we examine the division of labor within a factory, it helps to know what the factory was designed to produce. Similarly, when we examine the State, it is vital to know the purpose(s) that generated this complex and massive association. States have varied considerably in their structure and jurisdiction, but all of them fit the description by Franz Oppenheimer in The State (Vanguard, 1926). Oppenheimer distinguishes two basic methods of acquiring wealth: the economic means (labor and voluntary exchange) and the political means (“the unrequited appropriation of the labor of others”). This leads to a succinct description: “The state is an organization of the political means” (p. 27).
The State, for Oppenheimer, is organized theft — a method of systematic plunder. This is true but incomplete. The State is a union of thieves, but not all such unions are States. State theft is distinguished by being legitimized, i.e., its coercive actions are generally regarded by the subject population as morally and/or legally proper. This feature is emphasized by Max Weber in his classic discussion of the modern State:
“A ruling organization will be called ‘political’ insofar as its existence and order is continuously safeguarded within a given territorial area by the threat and application of physical force on the part of the administrative staff. A compulsory political organization with continuous operations will be called a ‘state’ insofar as its administrative staff successfully upholds the claim to the monopoly of the legitimate use of physical force in the enforcement of Its order”
(Economy and Society, Univ. of California Press, 1978, 1, p. 54).
This harmonizes with the notion of the State employed by libertarians in the debate between minarchism and anarchism. For example, Ayn Rand — perhaps the foremost proponent of minarchism — defines “government” as “an institution that holds the exclusive power to enforce certain rules of social conduct in a given geographical area ” (The Virtue of Selfishness, New American Library, p. 107).
“A given geographical area — this allusion to territorial sovereignty recurs throughout the libertarian debates on the legitimacy of government. Although this is important, it is usually overlooked that territorial jurisdiction is a feature not of all States (or governments) throughout history, but of what historians refer to as “the modern State.” This does not mean that such States did not exist before the modern era: the ancient Greek city-states exercised territorial sovereignty, as did the Han Empire of China and the Roman Empire. But the modern States of Western Europe, which were to become models of State-building throughout the world (England and France were especially influential), were not extensions of the ancient world; they developed from the successful, and often brutal, centralization of power by monarchs during the sixteenth and seventeenth centuries. (The origin of this trend can be traced back even further — perhaps to 1100, according to Joseph Strayer, On the Medieval Origins of the Modem State, Princeton, 1970.)
Historians generally regard the sixteenth century as pivotal in the development of the modern State. It was during this period that monarchs began to dominate rival claimants to power (especially the nobility and church). The march to territorial sovereignty accelerated its bloody pace. “The state-makers,” as Charles Tilly notes, “only imposed their wills on the populace through centuries of ruthless effort.”
“The effort took many forms: creating distinct staffs dependent on the crown and loyal to it; making those staffs (armies and bureaucrats alike) reliable, effective instruments of policy; blending coercion, co-optation and legitimation as means of guaranteeing the acquiescence of different segments of the populations; acquiring sound information about the country, its people and its resources; promoting economic activities which would free or create resources for the use of the state . . . Ultimately, the people paid”
(The Formation of National States in Western Europe, ed. Charles Tilly, Princeton, 1975, p. 24)
The American State was also designed, though under different conditions than those in Europe. As part of the British Empire, the colonies were subject to colonial administration. Under the aegis of Robert Walpole, however, the colonies enjoyed a lengthy period of “salutary neglect” wherein mercantilist regulations were loosely enforced, if at all. When this lax policy ended in 1763 — owing to the crushing financial burden incurred by Britain during the Seven Years War — the English found enforcement to be extremely difficult. Lax policies, plus the difficulty of governing from thousands of miles away, had permitted the colonists to evolve their own systems of local government which hindered centralization. A system of “competing governments” arose which prevented either side from attaining complete domination.
This changed with the successful completion of the American Revolution. Revolutions, however just, have unintended consequences of considerable magnitude. Two consequences of the American Revolution are important here: first, debts incurred during the war convinced many of the need for a centralized government with taxing power; second, with the British eliminated, there was no effective brake on the formation of a national State. The major competitor had been kicked out, and the field was clear for those who desired a State, provided it was not the British State.
But a new State (especially one born in revolution against monarchy) faced the considerable problem of legitimacy. A solution was readily found in a written Constitution authorized by “the people.” (We needn’t examine that fraud here.) Thus came into being one of the first modern “power maps” or “manifestoes of nationalism,” to use the apt phrases of Ivo Duchacek (Power Maps: Comparative Politics of Constitutions, American Bibliographic Center, 1973).
The national government maintained its territorial sovereignty (over a growing amount of territory) without serious internal challenge until the Civil War. Sectional conflict between the North and South had erupted long before this, of course, but the political dominance of the Democratic Party (which enjoyed support from both sides) prevented an open break. This unified support disintegrated, however, in the 1850s, largely thanks to Stephen Douglas and his support of the Kansas-Nebraska Act.
A badly divided Democratic Party lost the presidency to the Republicans in 1860; and the deep South seceded in response to the ascension of a sectional candidate to the presidency. Lincoln, an ex-Whig, was thoroughly imbued with nationalist doctrines; and this president who would not have made war to liberate slaves was — nonetheless willing to wage war in order to “preserve the union.” (“Secession,” as Lincoln correctly said, “is the essence of anarchy.”) The Fort Sumter incident provoked other southern states to join the Confederacy, and thus began the bloodiest conflict in American history. Some 600,000 people lost their lives in this titanic struggle between two States, each attempting to establish sovereignty. The most significant chapter in American State-building was written with the blood of thousands.
We see that, however modern States differ in the details of their origin, and however they differ in the extent of their power, all share a common design. All were explicitly intended to establish territorial sovereignty. All insist that they are the final arbiters in matters pertaining to law within a given geographical area. (The scope of the law varies dramatically, of. course, from State to State.) All States proclaim compulsory jurisdiction : a person is regarded as subject to the State, with or without his consent, as long as he resides in or is passing through a certain area (land, sea, or air). This territorial sovereignty is the foundation of all other State activities.
This historical digression is an important ingredient in developing an institutional analysis of the State. The State is a designed institution, forcibly imposed. State-builders had specific objectives in mind, foremost of which was to secure territorial sovereignty. The internal structure of the State was dictated (and continues its evolution today) with sovereignty foremost in mind. Virtually all functions of government — a standing army, an internal police, a monopolistic judiciary, a ruthless taxing power, public schools, etc. — may be seen as supports for the monopolization of power.
After we understand the purpose for which the State was designed, we are able to undertake an institutional analysis similar to the automobile factory discussed earlier. There we discussed how the overall product (the car) may be unintended from the perspective of specialized workers. We also examined the importance of roles in the production process. It is thus possible to refer to an institutional product and process being integral to the factory’s structure. The worker, in filling a role (doing his job), participates in the process and contributes to the product, quite apart from his personal intentions and goals.
Similarly, we may examine the “State-factory,” the institution designed to monopolize power and thereby sustain territorial sovereignty. Sovereignty is the “product” of this association (or the most fundamental among many); a monopoly on legitimized coercion is the “process.” But roles in the State apparatus, like roles in the factory, need human beings to fill them. There are increasing specialization and division of labor as the State expands its power and jurisdiction. Many of the individuals in specialized roles may have little knowledge of, or interest in, the institutionalized process and product to which their labor contributes. Their contribution, in this sense, may be unintended. (But, to repeat an earlier point, unintended does not mean unforeseeable.)
This is what I mean by institutional analysis. And this is what I believe to be implicit throughout much of the writing by libertarian anarchists. I have attempted to show what it means to say that an anarchist politician contributes to State injustice merely by filling a role (i.e., holding political office). I have attempted to show why the intentions of the politician are irrelevant to the process and product of the “State-factory” he has willingly joined. Political offices are indispensable roles in the State apparatus; and I submit that anyone who fills these roles contributes, however inadvertently, to the State process (monopoly of power) and product (sovereignty). The continuance of State power rests, not on the intentions of those who hold political offices, but on the complex structure of the State apparatus, each part of which contributes to the maintenance of State supremacy.
Thus the anarchist politician is like the auto worker who claims to be building a boat, and who professes surprise when a car comes out anyway against his wishes. And is he to blame? Not at all. True, he did voluntarily take on a job at an auto factory. True, he did get paid for it. True, he did show up for work and do the things that an auto worker is supposed to do. But what do such inconvenient facts count against his desire to build a boat?
And so our political anarchist. He gets a job with a political power factory and expects to produce freedom. He may even claim to be a clever saboteur (forgetting that authentic saboteurs never announce the fact). He goes to work, does political things (votes, etc.), receives a State salary, and even swears allegiance to the State. Because of this the voluntaryist suggests that he is in fact contributing to State power, despite his best intentions.
In Part Two of this article I sketched a theory of institutional analysis whereby individuals, filling institutional roles, contribute unintentionally to the goals of an association (i.e., a designed institution). Institutional analysis does not violate the principles of methodological individualism. On the contrary, anarchist theory relies on institutional analysis for its coherence. Anarchists who defend political office-holding and electoral voting cannot reasonably do so by opposing institutional analysis as such. Unless political libertarians are willing to purge their vocabulary of all institutional terms (“State,” “society,” the “market,” etc.) and all institutional propositions (e.g., “the State is invasive per se”), then their objections to voluntaryist arguments will reek of insincerity.
Of course, it is possible to accept institutional analysis and yet object to its particular application in the case against office-holding and voting. This is the only viable approach open to political Anarchists. Unfortunately, we possess no body of libertarian theory which treats institutional analysis in detail, so a discussion of the institutional features of voting requires considerable preliminary groundwork. Having discussed some procedural issues in Part One and institutional analysis in Part Two, I shall now explore how institutional analysis applies specifically to the State and to offices in the State. Then I shall move from institutional analysis considered descriptively to the normative or moral implications of institutional analysis. To what extent are those individuals who work within an association morally and/or legally responsible for the institutional products of that association? This thorny area is undoubtedly the most complex and controversial aspect of institutional analysis, yet it must be addressed if the moral implications of electoral voting are to be flushed out. Anarchist theory will never advance beyond a rudimentary level so long as this issue remains unresolved.
Modern States, I have argued, are designed institutions. They did not emerge spontaneously from the unplanned coordination of individuals pursuing disparate goals (such as in social division of labor). The State resembles a business organization; it was designed and established to achieve specific goals, and it has developed a sophisticated division of labor which furthers these goals.
This does not mean that all features of the modern State are designed. Economists point out that even rigidly structured business organizations and political bureaucracies exhibit signs of spontaneous order, often caused by internal competition for positions of prestige and power. Nevertheless, there are crucial differences between undesigned and designed institutions. Associations (designed institutions) coordinate individual actions to further homogeneous and predetermined goals. An auto factory, for instance, does not assemble workers, allow them to do as they please, and then accept whatever results from their unplanned interaction. Associations impose a structure of internal organization, a division of labor, to achieve particular goals. Any spontaneous order within the association is subordinated to these goals.
Modern States, far from evolving spontaneously, arose from the desire of political rulers to establish territorial sovereignty. The State’s spontaneous order occurs within these parameters. A State cannot allow developments that weaken its territorial sovereignty; it reacts quickly and decisively against all threats. The spontaneous order in society generally, on the contrary, operates under no such constraints. Social institutions may change drastically or die altogether without the interposition of force to prevent these changes. A similar hands-off policy is unthinkable for States.
8. “Invasive Per Se”: The Minarchist-Anarchist Debate
The core of anarchism is the claim that the State is necessarily invasive, or invasive per se. This is also the point of contention between anarchism and minarchism. If the basic institutional purpose of the State is one which could be accomplished by voluntary means, then the State is not necessarily invasive. If one were to argue (however implausibly) that the institutional purpose of the State is to deliver mail, then the fact that existing States use invasive means (taxation and a coercive monopoly) to provide this service would have no direct bearing on the theoretical question of whether invasive means must be employed to accomplish this goal. A totally voluntary mail service could be established; and if mail delivery is the defining characteristic of the State, then we have the theoretical possibility of a “voluntary State.” In this view, one could push for the elimination of the invasive aspects of the current government until it is pared down to its “proper” function of mail delivery. If we substitute “defense of individual rights” for “mail delivery” (one is as arbitrary as the other), we have the minarchist argument for the possibility of a non-invasive State.
The anarchist rejects the argument that the basic institutional purpose of the State is one which could theoretically be achieved by voluntary means. The anarchist considers the fundamental purpose of the State to be territorial sovereignty, and this is inherently invasive. Beginning with the libertarian prohibition of invasive acts, the anarchist adds the insight that the State is invasive per se — i.e., it must commit invasive acts to fulfill its basic purpose. When the nonaggression premise is applied to this view of the State, the consequence is a total rejection of the State on libertarian grounds. Thus, as I argued in Part One, anarchism is more than libertarianism. Anarchism is the nonaggression axiom combined with a particular view of the State — a view that relies on institutional analysis.
The minarchist-anarchist debate revolves around the essential (or defining) purpose of government. Minarchists assert that the “proper” function of government is defense of individual rights, broadly conceived (police, military, and judicial system). But it is unclear what “proper” means here. If it means “morally proper” — i.e., the State cannot legitimately exceed these boundaries — then no anarchist will disagree. No institution, by whatever name we call it, may properly violate rights. But why the State should be the focus of defense remains a puzzle. Minarchists must show that States were designed (in a substantial number of cases) with the defense of rights as a fundamental purpose. Unfortunately for them, history does not smile on this thesis. Territorial sovereignty was clearly the purpose leading to the organization and consolidation of modern States. This required a monopoly of legitimized coercion to eliminate potential competitors or those opposed to sovereignty altogether. The State’s monopoly on the means of coercion left it little choice but to provide a semblance of defense for its subject. The provision of these “services” plays an important role in legitimizing State rule (to preserve “law and order”), without which mass compliance would be difficult to achieve.
The anarchist thesis — that the State is invasive per se is an institutional judgment. It attributes an invasive purpose not to every person who joins the State but to the institution itself. Most of the State’s members may not personally care care about,or even know of, arcane subjects like territorial sovereignty. They may work for the State just to make a living. Others may find satisfaction in wielding power, and still others may have the sincere desire to accomplish something worthwhile. Political libertarians usually fall in the latter category. They see themselves as harbingers of freedom. When it is pointed out that their personal intentions — why they choose to join the State — are an issue distinct from their objective role within the State apparatus; and when it is argued that, insofar as they fulfill their roles as political office-holders, they thereby contribute to the institutional goals of the State, they protest that they do not personally aggress against anyone. Short of catching them with a smoking revolver, they claim exemption from the anarchist curse of the State and its agents. (Never mind that the smoking revolver test would exonerate the vast majority of State employees from personal liability; such inconvenient details are passed over by the political anarchist.)
The political anarchist professes to “hate the State” while avoiding a clear identification of who, or what, constitutes “the State.” Understandably, he does not wish to agonize over how to exempt libertarian members of the State from his supposed disdain. The political anarchist “hates” the State but seems to “love” the political offices that comprise the State. How the State is anything more than the combination of these offices acting in concert to attain institutional goals, is yet another mystery. If consistency is too much to expect of political anarchists, they might at least explain what they mean when they say that the State is invasive per se.
9. A Moral Problem
Political anarchists sometimes speculate on which governmental jobs they may consistently hold. They frequently distinguish between jobs which are necessarily invasive (tax collection, conscription) and jobs which, though financed coercively at present, would be permissible in a free society (mail delivery, school teaching). This dichotomy presumably answers the question of when libertarians may work for the State. A libertarian could work for the post office, for example, since mail delivery is not inherently invasive; but a libertarian could not work for the Internal Revenue Service. In deciding whether a libertarian could hold a political office, therefore, we should determine to which of these categories the office belongs.
I have heard this argument many times, though it has not received much attention in print. But the proposed criterion — distinguishing State offices which are invasive per se creates serious difficulties for the political anarchist.
Consider the argument that anarchists should not work for the Internal Revenue Service because tax collection is “invasive per se.” Note how this assertion immerses us in institutional analysis. For what does it mean to say that the I.R.S. is “invasive per se”? It does not mean that theft is the personal goal of every I.R.S. employee. Nor does it mean that every I.R.S. employee personally aggresses. The secretary, the file clerk, the accountant, the computer programmer — these and similar I.R.S. jobs do not require aggression or threats of aggression.
Clearly, when the political anarchist says that the I.R.S. is invasive per se, he means that the institutional purpose of the I.R.S. — the end to which lesser roles contribute — is invasive per se. So if it is impermissible for anarchists to work for the I.R.S., this is because institutional roles (jobs) in the I.R.S. contribute to its invasive purpose of theft — even though the roles themselves, considered in isolation, do not require personal aggression by all employees.
The same argument applies to employment with the Selective Service, drug enforcement agencies, and so forth. Only a minority of their employees personally aggress. Yet it is generally assumed by political anarchists that working for these invasive agencies violates libertarian principles.
This line of reasoning has devastating implications for political anarchism. An anarchist, it is said, cannot work for the I.R.S. or the Selective Service because these agencies are “invasive per se.” Yet we have seen that the essence of anarchism lies in the claim that the State itself is invasive per se. If the invasive nature of the I.R.S. precludes anarchists working for it, then why doesn’t the invasive nature of the State preclude anarchists working for it as well? If anarchists may not hire themselves out to the I.R.S. even if they avoid personal acts of aggression, then neither may they hire themselves out to the State in general — which is also invasive per se — even if they likewise avoid personal acts of aggression.
The political anarchist cannot have it both ways. He cannot invoke the “invasive per se” test with tax collection, conscription, drug enforcement, etc., and yet disregard it for the State in general. The political anarchist has two options: (1) He may deny that the State is invasive per se, thus defining himself out of anarchism; or (2) he may concede that an anarchist may properly work for an agency that is invasive per se, so long as the anarchist does not personally aggress. Neither of these options is very palatable. The first strips the political anarchist of his anarchist credentials, while the second opens a Pandora’s Box of job opportunities for anarchists. If the political anarchist seriously wishes to defend the propriety of anarchists working for the I.R.S., Selective Service, drug enforcement, the C.I.A. — the list goes on and on — then let him make his case.
The political anarchist is thus caught on the horns of a dilemma. He cannot reject the “invasive per se” criterion for the State while using it for particular agencies in the State. He cannot deny institutional objections to political office-holding, invoking the smoking revolver test instead, while advancing institutional objections against particular State agencies, thereby discarding the smoking revolver test when it suits his fancy.
Thus, either the political anarchist must become a voluntaryist, or he must introduce new (and hitherto undreamed of) employment opportunities for “anarchists.” Either he must abandon the case for political office-holding, or he must champion the legitimacy of anarchist employment in a wide variety of repulsive agencies. The latter is the only option short of capitulation.
10. Office-Holding and State Membership
The State, like all associations, has an identifiable membership. The institutionalized power of the State is a scarce resource; not everyone can benefit from its use simultaneously. The fierce competition thus generated for the control of State power necessitates membership criteria to restrict entry.
Membership criteria vary according to the form of government. An accident of birth may qualify one for membership in hereditary monarchies and aristocracies. Some forms of aristocracy encouraged the sale of political offices (“venal offices”), which then could be transferred like private property.
State membership in a democracy is theoretically bestowed by popular election, or by appointment authorized by a duly elected official.
Whatever the membership requirements, an office-holder acquires special privileges (legal rights) denied to the public at large. On the lower levels of State employment, this privilege may be nothing more than a claim on tax revenue in the form of a regular paycheck. As we ascend the hierarchy of power, however, the privileges become more extensive. Higher level office-holders enjoy considerable discretion in the exercise of power.
This power may be unlimited, as in despotism, or restricted in some fashion, as in a constitutional republic. But the privileges conferred by State offices always entail legal rights denied to nonmembers.
Political office bestows power on the occupant of that office. Bertrand de Jouvenal (The Pure Theory of Politics, Cam. bridge Univ. Press, 1963, p.118) makes this point in an interesting way:
In the museum at Corinth there are two statues, artistically worthless, which testify to the fashion under Roman rule of setting up in a place of vantage the standing figure of the governor. The sculptor has reproduced, with uninspired exactitude, every detail of the military costume borne upon occasions of state by the representative of the civitas imperans. Only the head is lacking, nor is it by accident: a hollow between the shoulders reveals grooves designed for the fitting of a removable head upon the massive body. Thus were the citizens spared the expense of putting up a new statue to honour a new governor: the old face was taken down and a new face was set in its stead. This can serve to symbolize established Authority. The statue has been set up at some previous time and lasts through many generations; but the face must be that of a living and active magistrate. The end of a life, or of a term, removes the transient head from the enduring shoulders. There is now a void to be filled, an opportunity for a new man to lift his head on to the shoulders of the statue … A complex political system comprises many statues, and the procedures for lifting heads on to them are diverse.
The legal rights of high political offices in the United States are determined primarily by the Constitution (including judicial interpretations of the Constitution). We needn’t engage in a lengthy argument to show that political privileges thus acquired run contrary to the principle of nonaggression. A reading of the Constitution alone is sufficient. Art. I, Sect. 10, for example, vests in Congress the power “To lay and collect taxes, duties, imposts, and excises … To regulate commerce with foreign nations … To coin money … To establish post offices and build roads … To declare war … To provide for calling forth the militia to execute the laws of the Union,” and so forth. To say, as does Art. I, Sect. I, that these “powers” are “vested in” Congress means that the physical might of the State will be used to back up Congressional decisions in these areas should any citizens disobey or resist. Some members of the State, in other words, will call on other members of the State (police, military, etc.) to enforce their will.
Members of Congress have immense power; their decisions are backed by the physical coercion of the State. If my neighbor decides to rob me, it is unlikely that he can enlist the power the State to assist him. But if a Senator decides to rob me (by voting for a tax bill), the full weight of the State will fall on me should I resist.
Members of the State are thus allied in a common cause; they share an enforcement mechanism whereby their decisions will be enforced at the point of a gun. An office-holder has objective power commensurate with his legal rights. The more privileges he enjoys, the more power he wields. This power exists independently of what he decides to do with it. It exists prior to any action he may take in office, because it is inherent in the office. By the fact that an individual qualifies for an office, he acquires the legal rights of that office.
Legal rights — privileges enforced by the State — exist apart from their exercise, just as natural rights do. A man has a natural right, say, to purchase an aardvark, even though he may never actually purchase an aardvark in his life. The right exists whether he exercises it or not.
Similarly, the office-holder acquires special legal rights which exist independently of their exercise. The Senator, for example, has the legal right to pass tax laws — meaning that the State will back him up if he does so. A particular Senator (e.g., a libertarian) may never actually vote for a tax bill, but he has the legal right nonetheless. The privilege resides in the office.
A person elected to high political office allies himself with the power of leviathan. He voluntarily seeks and successfully achieves the privileges of political office which permit him to aggress against his neighbors — privileges enforced by the State.
Such a person is a dangerous threat to innocent persons everywhere. Not only has he captured a position of immense power, but he also swears an oath of allegiance to the Constitution and accepts payment (i.e., stolen money) for “services rendered.” When a person voluntarily seeks and attains invasive power, swears to enforce the rules that maintain his power, and receives a handsome salary to boot, the conclusion is inescapable: this person has become a full-fledged member of the State. He accepts its privileges, pledges his loyalty, and reaps its rewards. The protest of the libertarian office-holder — that he intends to use his power for beneficent ends — is beside the point. His actions speak louder than words. He has joined the “ruling class.”
11. The Ruling Class
In the tradition of Mosca and Pareto, libertarian anarchists embrace a theory of the ruling class based on political, rather than economic, criteria. Those who hold positions of significant political power, according to this view, are members of the “ruling class.”
Political anarchists are hard-pressed to reconcile their ruling class theory with their advocacy of political action. Political criteria for the ruling class will include libertarian politicians in their purview. The specific behavior of politicians does not determine whether they are part of the ruling elite. (A congressman does not leave the ruling class when he votes correctly and re-enter when he votes incorrectly.) Rather, those who hold significant positions of power in the State belong to the ruling class, regardless of what they do with their power. This includes libertarian office-holders.
Ruling class theory is just one of many areas where the political anarchist dodges the implications of his own theories. Sooner or later these issues must be confronted. Is the libertarian congressman objectively a member of the ruling class? If not, why not? If so, then presumably a “ruling class” is not necessarily evil or undesirable by anarchist standards. This, too, requires some explaining.
12. The Paradox of Liability
In the earlier parts of this essay I touched on an important subject without examining it in detail. Why is it, I asked, that “anarchists often impute greatest liability to the highest levels of political decision-making (presidents, legislators, etc.). even though these levels are far removed from physical enforcement”? I suggested that such judgments occur within an institutional framework, according to the role played by political offices in sustaining State power. We are now able to expand on this insight.
We are addressing what I call the “paradox of liability.” As we ascend the hierarchy of political offices we become more distant from the enforcement arms of government. But we also come closer to those persons who are, in a sense, most responsible for the State’s invasive activities. (As I pointed out in Part Two, “There were more condemnations of President Johnson during the Vietnam War than of individual bomber pilots.”)
Perhaps ascribing liability to high political offices is a mistake. Perhaps anarchists should blame only those who literally use physical violence (which would exonerate Hitler, Stalin, and others of their ilk). This approach causes more problems than it solves, however, not the least of which is the gutting of anarchist theory. It is safe to assume that most anarchists subscribe to some version of the liability paradox.
But does this paradox make sense? Should not the person who actually commits a crime be more liable than the politician who authorizes or commands it? In a sense, yes. A soldier who kills innocent civilians is guilty of murder, pure and simple. He is fully liable for his action. But the invasion of the individual soldier is relatively limited in scope. He may murder, but he does not determine the policy that authorizes murder on a vast scale. This is a privilege reserved for high political office (in most cases).
In a war crimes trial, President Johnson would not be as liable for a particular murder as the person who physically committed the act. But Johnson shares some liability for a vast number of similar acts. His degree of liability for a particular murder may be less, but his range of liability is far greater.
Consider another example: the tax agent who physically expropriates the property of a tax resister or drags him off to jail. Would congressmen who support taxes be as culpable as the tax agent who actually commits the foul deed? Probably not. They would be accomplices rather than principals. But the congressmen are accomplices to many such invasive acts — far more than can be perpetrated by a single agent. Although the degree of liability may be less for the congressmen than for the perpetrator, the scope of liability is far greater.
This is only a suggestion. A libertarian theory of liability awaits more work before any solution to the liability paradox can hope to be securely grounded. But I think my suggestion is a plausible step in the right direction. Its two components may be summarized as follows:
First, high political offices possess greater power (more privileges and wider discretion to dispense power) than enforcement personnel. Fundamental decisions are made at this level; this is where invasive policies originate.
Second, because the decisions of political office-holders are more fundamental, they are also more general in scope than the decisions of enforcement personnel. Their applicability is broader, because political decisions reverberate throughout the State and throughout the territory over which it claims sovereignty. Thus, when we say that President Johnson was “more responsible” for murders than individual bomber pilots, we mean:
(1) President Johnson, utilizing the power of his office, made fundamental decisions that set the State apparatus in motion.
(2) President Johnson was responsible, to whatever degree, for a broader range of casualties (a greater number of murders) than any individual bomber pilot.
13. Political Offices as the Manifestation of Sovereignty
The paradox of liability helps us to understand how political offices bolster State sovereignty. High offices are distinguished by their fundamentality and scope. Therefore, we may reasonably expect territorial sovereignty — the fundamental goal of the State — to be embodied in the most powerful offices. This is indeed what we find. The guardianship of State sovereignty is the most significant institutional role of high offices. They are designed to preserve and promote that sovereignty; and this purpose is served regardless of who occupies the office, so long as the occupant meets the demands of his job. (See the discussion of the auto worker in Part Two.)
E.T. Hiller, in A Study in Principles of Sociology (Harper and Row, 1947, pp.581-6), describes the relation between offices and the association they comprise:
Various functions are required to maintain an association and promote its aims. These functions, when standardized, constitute statuses which are usually referred to as offices. An office consists of the delegated administrative, executive, supervisory, and ceremonial functions belonging to an association (whether public or private, official or voluntary). It comprises prescribed, institutionalized duties and, comparable rights and privileges … The office is an expression of the special aim or aims of the association … In each type of association the authority of an office is derived from the aim to which the association is committed, the authority proceeding from the higher to the lower ranking positions … An office … is an established system of social relations which constitutes a part of the social organization. By entering [an office] the incumbent is required to play the specified part in maintaining the given social structure.
The highest legislative, executive, and judicial offices are the incarnation of sovereignty. This was obvious to the framers of the Constitution, even if it escapes many political libertarians. Assertions of sovereignty precede the enumeration of powers for each branch of government. To wit:
Art.I, Sect.I: “All legislative powers herein granted shall be vested in a Congress of the United States .. .”
Art.II, Sect.I: “The executive power shall be vested in a President of the United States of America.”
Art.III, Sect.I: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
Note well the wording. “All legislative powers,” “The executive power,” “The judicial power.”
An absolute monopoly of these functions is proclaimed at the outset — a monopoly enforced at the point of a gun. No competition can ever be permitted at this level. The State could abandon its monopoly on virtually every “public service” and yet remain a sovereign entity. But it cannot surrender its monopoly of political decision-making without surrendering its sovereign lifeblood.
Major political offices thus embody the basic claim of sovereignty: that members of the State have the sole legal right to rule a certain territory. If power reflects a spirit of arrogance — the impertinence that one person has the right to tell another person how to live — then political office is the body in which that spirit dwells.
Suppose a libertarian Senator votes against every piece of invasive legislation. Can he be held accountable for that legislation, if it passes despite his opposition? No. But that Senator is responsible for sustaining State power on a more fundamental, if less obvious, level. In filling his role as Senator — taking his oath of office, exercising his monopoly privilege to decide how we shall be ruled, etc. — he furthers the basic institutional goal of the State: territorial sovereignty. By accepting the framework in which the State operates, by capitulating to its conditions and demands, by voluntarily joining the “ruling class,” thereby acquiring legal privileges backed by leviathan — in a myriad of ways does the libertarian politician do all that the State requires of him.
The libertarian politician, brimming with good intentions. believes that he will use the State to further his ends. The sad truth is that the State will use the libertarian politician to further its ends.
More from George H. Smith:
- A Biography of Thomas Hodgskin
- The Success of America’s Public School System
- The Moral Right to Resist Authority
- Neoconservatism Versus Libertarianism
- Thomas Jefferson on Public Education
- Natural Rights and the Moral Foundations of Libertarianism