Response to Nicole’s Comments

by Roderick T. Long

Nicole raises an interesting question about the point of empirical case studies: while historical examples of successful anarchies show that anarchy doesn’t guarantee a bad outcome, and historical examples of unsuccessful anarchies show that anarchy doesn’t guarantee a good outcome, neither one shows which outcome is most likely.

That’s true enough, but let me make a couple of points in response. First, the empirical literature on successful stateless societies is much broader than just a handful of case studies; see, for example, Tom Bell’s 1992 bibliographical essay on polycentric law (and a lot more has been done in the sixteen years since). Second, the case for the viability of anarchism does not depend on case studies alone; such studies are used as an illustrative supplement to predictions derived from the application of economic and social theory.

Now let me turn to Nicole’s specific argument for why libertarians should be welfare liberals – or, as I would prefer to say, welfare-state liberals, since I think libertarians are welfare liberals already. (I’m a welfare-anarchist liberal.)

I note in passing that Nicole uses the term “libertarian” specifically to mean “non-anarchist libertarian” – which is not how the term is generally used. Since I think non-anarchist libertarianism is incoherent, I suppose it does entail welfare-state liberalism, since an incoherent position entails anything.

Nicole seems to assume that under libertarian principles, consent could justify a state. I don’t think so. I accept the Rothbard-Barnett argument that contracts can transfer only alienable rights – i.e., rights to external property, not rights to personal services. Contracts for personal services, therefore, can be enforced only via restitution and money damages (alienable), not via specific performance (inalienable). Hence a contract cannot give any agency the powers of enforcement necessary to constitute a state. You can sign a contract agreeing to obey my orders in exchange for $50; but if you later decide to break the contract, by Rothbardian principles I can’t force you to obey – all I can force you to do is to pay me back $50 plus damages.

Of course, not all libertarians accept the idea of inalienable rights; Robert Nozick and Walter Block don’t, for example. So I agree that by their principles, libertarians could contract their way into a state. (If into chattel slavery, then a fortiori into a garden-variety state.) But I think libertarian rights depend on a) the rights-holder’s moral duty to protect her own autonomy, and b) the moral duty of others to refrain from interfering with the rights-holder’s autonomy – and I don’t see how the rights-holder’s consent can relieve either herself or others of either of these duties.

Moreover, even if we grant that everyone in a territory could alienate their rights over to an aspiring state, that would give the state no rights over third-party newcomers (including both noncitizen visitors and the next generation of citizens), and so it wouldn’t be a territorial monopoly, and so not a state. Now this problem could be gotten around by having the contract require – on pain of loss of their land – a) that all land within the state’s territory be owned either by the state or by the state’s citizens, and b) that landowners not allow anyone (including their own children past the age of majority) on their land unless they sign the contract. But who in their right mind would sign such a contract?

But let’s grant for the sake of argument that minarchist libertarianism is coherent, and see whether Nicole’s argument shows that minarchists should be welfare-state liberals. (I’ve reworded her argument to avoid any misleading terminology.)

1) [Actual-consent minarchists] agree that any existing states must be legitimate and some states should exist.
2) [Actual-consent minarchsts] hold that for any existing state to be legitimate it must only exercise coercive force over (rights-respecting) individuals to protect these individuals’ liberty.
3) [Actual-consent minarchists] should agree that for states to be legitimate, they must secure their subjects’ autonomous consent.
4) For states to secure their subjects’ autonomous consent, they must do what they can to enable their subjects to secure sufficient autonomy to autonomously consent to their rules.
5) To secure this autonomy most people (in all states) must be able to secure some minimal amount of healthcare, food, water, and shelter.
6) So, [actual-consent minarchists should agree that] states must do what they can to enable most of their subjects to secure some minimal amount of healthcare, food, water, and shelter.
7) If [actual-consent minarchists] must agree that states must do what they can to enable most of their subjects to secure some minimal amount of healthcare, food, water, and shelter, they must be welfare[-state] liberals.
8) [Therefore: actual-consent minarchists should be welfare-state liberals.]

Let’s consider the premises in turn. (1) is fine. But what about (2)? Do minarchists – actual-consent or otherwise – really believe that coercive force is legitimate to protect the liberty of the coerced? Maybe some do; but most think coercive force is legitimate only to protect the liberty of others, against the coerced. Minarchists argue, for example, that the refusal to submit to the minimal state’s monopoly authority represents an unjust threat to others. I think they’re wrong about that, but still, that’s their view.

Still, this doesn’t exactly make (2) turn out false, since (2) says “only if” rather than “if” In any case, (2) doesn’t seem to play any actual role in the argument. (8) follows from (6) and (7); (6) is meant, I think, to follow from (1), (3), (4), and (5); and (2) is idle.

(3) is okay; what about (4)? (4) seems backwards to me; I don’t see how an institution can satisfy a precondition for its legitimacy by working to bring about that condition, since a precondition is by definition something that must already be satisfied before the institution can legitimately do anything at all.

I’m also not sure what’s included in the scope of “what they can.” Unless libertarian rights are included among the relevant constraints, this phrase would be a second objection to (4).

Now maybe the answer to both objections is supposed to be that the state (or state-aspirant) taxes those whose have already (autonomously) consented in order to provide the conditions for autonomy to those who haven’t yet signed up – to enable them to become competent to sign up. But the state-aspirant presumably can’t make the provision of such aid conditional on their signing up, since that would by Nixole’ standards be an illegitimate contract. And if the aid is unconditional, what incentive do the recipients have to sign up? (If they don’t sign up, the state-aspirant doesn’t acquire a monopoly and so doesn’t become a state.)

What about (5)? If (5) is claiming that no contracts are legitimate if one party to the contract lacks adequate subsistence, I worry that such a claim unduly infantilises the needy. For example, it would prevent the needy from making legitimate contracts with each other, and so legally disallowing mutual-aid associations and the like.

So I don’t buy most of the premises. Still, suppose we grant them. Then (6) seems to follow, at least with my bracketed addition. But what about (7)?

This also seems false to me. First, if libertarian rights are included in the restraints on what states “can” do, then becoming a liberal welfare-state is not one of the things the libertarian state “can” do. Second, even leaving this aside, if libertarian economic and social theory is correct, the informational and incentival perversities inherent in monopoly guarantee that states will do a worse job than markets of providing “healthcare, food, water, and shelter” – in which case the state’s putative duty to “do what they can to enable most of their subjects to secure some minimal amount of healthcare, food, water, and shelter” will generate, not a duty to become a welfare state, but a duty not to become a welfare state – indeed, I would argue, a duty to cease being a state at all. (Hassoun thinks the assumption that voluntary means will be insufficient is “minimal,” but in light of the extensive libertarian literature on ways in which the state systematically interferes with voluntary measures to relieve poverty, the assumption is not going to seem minimal to her target audience.)

Roderick T. Long
Philosophy, Auburn University