Some Comments on Nicole’s Paper(s)

by Jan Narveson

1. Consent theory

“Finally, some libertarians also accept actual consent theory. They believe that states are legitimate if and only if they secure their subjects’ autonomous consent.”

This is a large and tricky topic. There is, above all, what constitutes giving consent in the relevant sense? Consenting to the state is a pretty exotic commodity. We have a naturalization procedure for immigrants coming up for citizenship (I went through it), and it no doubt includes somewhere some kind of statement amounting to a claim that one consents to the Canadian government. Consent? I of course did nothing of the sort, really, but no doubt I raised my hand on the appropriate occasion, and yep, I got my citizenship! Maybe under false pretenses, but aren’t those just about the only kind?

Now: I suggest that what we can have and all we can possibly need along this line is: the individual’s actually accepting (would say “yes” to questions of the form, “Do you suppose that p?”) a bunch of premises which, taken all together, imply that this person thinks the state is legitimate. This is what there should be to the notion that the person should think it so, whether he says so or not.

Obviously that makes it a dialectical slugfest whether most people or even anybody does in fact consent. Moreover, it does not involve another filter, which would winnow down the available beliefs to true, or even plausible, ones. [cf. “If a state cannot secure the consent of its subjects because its subjects have irrational or immoral preferences, one might suggest, this does not undercut that state’s legitimacy.” But we must split a difference: irrational preferences should be accepted; immoral ones, in the very narrow sense of preferences inconsistent with the libertarian principle, should not. That A consents to the bludgeoning of B for the sake of C does not make it legitimate for the state to do so. But of course, that’ll be because B doesn’t consent to being bludgeoned...]

[note: this agrees, in short, with your good point, “Why should states be able to coerce even the irrational, mean, or deluded as long as they are not violating others’ rights?”]

Surely the libertarian holds that people should not consent to their state unless it meets our proposed condition (viz., that its government doesn’t coerce except to defend people against coercion). The above rendering at least gives some manageable content to that criterion.

Now follows three points about autonomy:

2. Autonomy (i): “To secure sufficient autonomy most people (in all states) must be able to secure some minimal amount of food, water, shelter, education, health care, social and emotional goods.”

Whatever, the consent criterion requires that it not be coerced. But when do we say it was coerced? Your welfare state argument, it seems to me, allows that a person might be relevantly nonautonomous even though nobody in fact coerces them. Surely people might be at a low level in respect of all those things even though nobody else has coerced them into being so.

Independently, I am puzzled at the thesis that people who are cold and hungry etc. are not autonomous. They’re in tough shape, and it won’t be a bit surprising if they resort to theft, e.g., in their efforts to improve their situations. But why should that be nonautonomous? If my brain is controlled by electrodes from somebody’s mad-science machine, that would suggest non-autonomy indeed. But if it’s connected to the rest of me in the usual way and it’s just that I’m really hungry, I don’t quite see that that’s nonautonomous. In any case, it’s not due to coercion on the part of some other human. Life can be tough.

3. Autonomy (ii): ‘States doing what they can to enable autonomy’:
“To be legitimate, states must do what they can to enable their subjects to secure sufficient autonomy to autonomously consent to their rules (henceforth sufficient autonomy).”

This is the first and major premise of the “Commitment Argument.” But it is not acceptable. Consider the wording – that states must “do what they can” for this purpose. Does this mean, do whatever they can? Any socialist would be delighted to hear that!

Or did she mean, as she must, if this is to be an internal criticism of the libertarian view, that states are to do whatever they can without coercing anybody? If so, then the trouble is that that, surely, is: nothing. Unless she perhaps meant this: protect the free market and free n.g.o. activities which will then go to work and see to it that everybody meets the threshold specs for autonomy. But it is not clear that a state is needed for that, and very clear that states’ efforts toward that end (rare as they are) are characteristically perverse. State methods of this kind will almost certainly violate the rights of some, who will be coercively enlisted to support those institutions. (Central banks are usually an example.)

I suggest, at any rate, that libertarians, on the sheer face of it, cannot accept Nicole’s argument for the welfare state. Libertarians are funny folk. They do not accept this:

“sometimes, the best that a state can be is imperfectly legitimate. Sometimes a state’s being imperfectly legitimate is better than the alternative.”

If the alternative is being perfectly legitimate, that seems a dubious preference on the face of it.

She could modify her view considerably in a way that would make it much more agreeable to libertarians, and much more plausible. Thus, in a crisis, we should all pitch in and help. Those who don’t can be left behind – we don’t need to use force, because the weather, or whatever, is doing plenty of that anyway. The state could, at some point, be viewed as simply organizing a relief effort rather than coercing people into helping out. It could be “viewed as” doing that if, that is, it actually was doing that. Of course, states never do that anyway, as witness the American government’s sorry doings re Katrina. Better to leave helping to people who actually want to be helpful ....

4. Autonomy (iii): In any case, it is a fallacy to go from: [i] states are legitimate only if they are autonomously consented to, to [ii] we may therefore be compelled to bring it about that certain human organisms not currently autonomous but capable of becoming so are so, in the interests of legitimizing the state. As she herself says, “In order for someone to actually autonomously consent to a state that person must be able to do so.” Well – and if she is not able to do so? Then she doesn’t participate in the poll, and that’s that. If some nice people want to enable her to do so as well, that’s fine. But there’s nothing in the idea of a state that compels expanding its reach. (Or does Nicole want to be accused of imperialism, on top of the socialism that I’ve already half-facetiously tarred her with?)

[To explain further: the claim that this group of people (those designated as “the government”) has jurisdiction over everybody – autonomous or no – within area X – is question-begging. Until that institution is shown to be legitimate, it cannot just go ahead and do as it will with all those bodies. Now, suppose that 97% of those bodies (above some threshold age) actually manage to “consent,” somehow to this group of what would otherwise appear to be bullies: are those bullies now entitled to coerce the citizens into helping the nonautonomous among them to become autonomous? Why? That those bodies, once autonomous, might also join in this (mindless?) game hardly justifies us in bringing them to that condition. That being autonomous is a good thing is, of course, plausible and arguable. But it has been denied all along that we are obligated to do something for A just because it would be good for A if we did it!

5. This seems quite puzzling: “If anything subjects freely consent to is legitimate, even basic libertarian rights can be legitimately violated. Subjects can legitimize non-minimal states by free consent.”

This idea of Nicole’s seems unintelligible on the face of it. For the only libertarian right, it seems, is to have one’s liberty respected. If I freely consent to x being done to me, then it is respected. I can’t “freely consent to not having my liberty respected,” since it is respected when you do what I agree to, whatever it is. Nicole imagines a society with horrific practices – but remember, they are all voluntary. All those gladiators and galley slaves are self-enlisted for those very purposes. Nicole ends up thinking this would be legitimate, and it’s impossible not to agree with her. It’s also impossible to imagine any real society being like that. All the slaves, gladiators, and so on that we know were coerced into doing those things.

For that reason, minimalism and consensualism plausibly coincide. What we call ‘the state’ is an institution that can, and does, force people to do all sorts of things; if people do those things anyway, then what they have is a very odd society, but not a state. And the state is what we are talking about. What makes a state “minimal” is its confining itself to defending rights (if – as we anarchically inclined ones are inclined to deny – it can even do that without violating somebody’s rights while it’s at it.) What the people are doing within those rights is beside the point. The modern welfare state, etc., goes beyond the minimal state because it compels people who do not want to participate in this to do so anyway. A society in which 100% of the people had health insurance with the same company would be astonishing, but it would not thereby exemplify a non-minimal state. It might well not exemplify statehood at all.

6. Significantly, she says: “The obligation for states to do what they can to enable subjects to secure sufficient autonomy is a remedial obligation; there would be no such obligation were states to ceased exercising a monopoly on the use of coercive force. But then there would be no states.”

To this we might just say: Amen, brothers! [We do not show that an argument has been reduced to absurdity by showing that it leads to the illegitimacy of the state.]

7. “if all states had such welfare systems many of the 18 million people who die every year of easily preventable poverty related causes might survive.”

This is indeed familiar argument from opponents of libertarianism. Such opponents believe that coercion is superior to freedom: The bad guys – the capitalists and non-union workers and so on – are too heartless or too poor to rectify poverty, which is conceived as being something like a disease. Self-evidently, poverty is such a bad thing that if the only way to “prevent” it is by wholesale theft, then of course we should do that.

But why do we have to buy such bad economics along with our bad morals? If poor people are allowed to work, and work will enable them to get less poor, most of them will indeed work. If jobs are not “available” – well, why aren’t they? Are the services that the jobless could offer worth nothing? (If they are, why must we be compelled to pay them for doing nothing? Should not those of us who sympathize with such people help them out?) Employment – that is to say, useful employment, employment that is worth buying at the available rates, because it is of benefit to the somebody who pays for it – is the general solution to poverty – not welfare states. Indeed, there is reason to think that turning states into welfare states will promote poverty rather than cure it. Welfare states think there’s an “easy cure” for poverty: just take a lot of other people’s money and give it to the needy. There is reason to think this is a cure that’s at least as bad as the disease.

8. In her reply to one objection, to the effect that her argument doesn’t show that the state is obliged to improve the autonomy of those it has not undermined, she says: “the objection does not provide a reason why states are not obligated to help those whose autonomy they have not undermined.”

But I suggest that’s because the argument is so easy: if our only duty is to refrain from violating liberty, then there is, prima facie, no reason why anybody, and thus states, would be obligated to help persons whose rights they have not violated. Of course we could form an organization devoted to improving the autonomy of the currently nonautonomous (if such a thing makes sense), and those hired by the organization to do that might indeed have a duty to promote autonomy of people whose autonomy they have done nothing to undermine. But we don’ derive this duty from the duty not to undermine it in the first place. We derive it, instead, from the terms of their contracts with the nice people who set out to do this laudable thing.

9. “At least non-libertarian actual consent theorists can accept the claim that, all things considered, it may be better to have peace and coercion than war.”

Well, coercion is, in its small way, a sort of war. Now, if it is employed against aggressors, then it is Just War. But just war is war. It’s better than unjust war, and it would be better still if there was, simply, peace. But how do you get simply peace by coercing a lot of people who are doing no harm to anyone? That’s the problem!

Jan Narveson
Philosophy, University of Waterloo