From First Principles

What is the correct size and proper function of the state?

by DETLEV SCHLICHTER

For a long time I considered myself a classical liberal – as did Ludwig von Mises who inspired much of my work. I do no longer think that this position is logically consistent. The classical liberal position, although advocating a much smaller state than today’s political consensus, still assigns too many powers to the state. Nevertheless, it offers a good starting point for the discussion. So let us start here.

Utilitarian arguments for the strictly limited state

The classical liberal position on the role of the state can approximately be described as follows: The state should stay completely out of the economy. There is no role for the state in industry, banking or money. Money is gold, or any other commodity chosen by the trading public. The supply of money is thus outside of political control, and banking and finance are entirely free market businesses with no state support, no guarantee nor any explicit or implicit backstops. 

Additionally, all means of production are privately owned and their use is directed by market prices, and by the opportunity for profit and the risk of loss. Profit and loss are essential tools for the consumers to direct the activities of private enterprise so that they conform as much as possible to the wishes of the buying public. The state is not involved in education, health care or old age provision or any other so-called social services. All these activities are organized privately for the simple reason that all these activities require the use of scarce resource, including labor, and any rational allocation of scarce resources requires market prices. Only on the basis of market prices is rational economic planning possible. Only market prices convey the urgency that the public assigns to the various competing ends to which resources can be put at each point in time. But market prices can only be determined if the resources are privately owned and traded on free markets. Private property is thus the essential tool for extensive social co-operation. Private property allows trade and the formation of market prices. This then allows the rational and efficient employment of these resources by entrepreneurs. The whole process is the only one logically possible to facilitate an extensive division of labor and the constant accumulation of capital employed in private enterprise, and it is the system of extensive division of labor and the constant accumulation of capital that makes our high living standards and any further advances in living standards possible.

An example:

Britain’s National Health Service will never deliver a satisfactory service. This is not because the people who work in it are incompetent or lazy. They could be the most motivated, devoted and well-meaning people on the planet and they could still only deliver suboptimal results and do so at considerable cost. Why? Because the NHS has to deliver health services for an entire nation without the help of true market prices and profit and loss accounting. These are the tools of capitalism that – day in and day out – allow the private sector to make informed decisions about best resource use – ‘informed’ because reflecting the preferences and wishes of the customers, the consumers.

Despite the widespread sentimental attachment to the NHS and its superficially appealing motto of delivering health care “free of charge” (obviously not true for the majority of citizens), the fundamental shortcomings of any service organized along socialist lines should be glaringly obvious to anyone: While the still fairly unrestricted private mobile phone industry in Britain delivers the latest advances in telecommunications technology to people across the entire social spectrum with remarkable speed and at constantly falling prices, the nationalized health service bureaucracy has people wait in line even for many routine and long-established procedures and provides such service at ever more staggering cost to the taxpayer.

That health service and education are too important to be left to the private market is a common prejudice that puts economic logic on its head: Because they are important they should be allowed to employ the tools of the private market.

But what does that mean for those who are too poor or for whatever reason unable to obtain the market income to afford themselves even a minimum of these services? – I am not going to evade that question. It is, of course, a standard response. I will come back to it a bit later.

What does the argument so far mean for the size and role of the state? – The state would, of course, be rather small by today’s standard. It would only have one function: to protect private property, which necessarily includes property in ourselves. The state’s role would be to protect every citizen and his or her property from aggression, whether that aggression comes from inside the country or outside the country. The state would be reduced to what the German social democrats of the late 19^th century derogatorily but still accurately called the ‘night-watchman state’. The state would provide security services, including police, army, courts and related services. Its only function would be to provide security and protection.  Those citizens who do not transgress against other peoples’ person or property or those who are not being transgressed against, would hardly ever come into contact with the state and its representatives. This would indeed be a minimal state.

Thus far, we have argued on the basis of utilitarian considerations. A prosperous society requires high degrees of division of labor and efficient resource use, which in turn require market prices, which in turn require private property. Under utilitarianism, private property is first and foremost a social convention, a means to an end. And the function of the state is to secure this means: private property, the existence of every individual’s inviolable private domain, as the basis for voluntary contractual cooperation and the spontaneous growth of society.

Ethical arguments for the strictly limited state

But such a minimal state can also be constructed on ethical grounds and considerations of justice. Every state is an institution that is based on compulsion and coercion. It can be seen as a depository of legalized, institutionalized and regulated force or threat of force. But what type of force is ethically defendable and could therefore provide an acceptable conceptual basis for institutionalized force? Only defensive or protective force fulfils that requirement.

To answer questions of ethics we need to start with the acting individual. In an otherwise peaceful, cooperative society, at what point am I justified to apply force or the threat of force when dealing with other people? Only if and when these people threaten my life, health or my property. This does not mean that any type of violent response is deemed justified in such situations, but it is clear that if force and violence can be justified at all, it must be in situations of self-defense, which include defense of property. If I am justified to defend myself from attack, I must also be allowed to defend those material goods that I have obtained through my work by applying my own body and mind. If this were not the case and if others were allowed to avail themselves of the fruits of my labor by simply taking them from me it would mean they could live off my work and thus practically enslave me, which would be equivalent to an attack on my person.

By transferring the individual’s right to self-protection and self-defense of life and property to a specialized organization that fulfils the task of looking after these rights for all members of the community, no new special rights have come into existence. It is not claimed that the state has any rights or powers that the individual citizen does not have already. In fact, the state’s legalized force would have its origin in a concept of natural rights that originate with the individual citizen and that that citizen would have even in a stateless society (although in such a society he would have to enforce these rights himself or in voluntary cooperation with others). The state could perhaps be thought of as a pooling of these individual rights to allow for their more organized, standardized and thus more predictable safeguarding.

The utilitarian case against the welfare state

We can now turn to the question of provision for poor citizens or for those who for any reason are unable to adequately support themselves. While good arguments can be made that those in society who are better off have moral obligations to give support to weaker members of society, it is clear from the reasoning above that the state should not enforce such support. Again, the state is an organization that operates through compulsion and coercion. By assuming ‘social’ responsibilities the state must redistributes income and property on an ongoing basis by application of force or the threat of force, and must thus be permanently in violation of its original mission, which was to protect rightfully gained private property from violent interference, and thus support the institution of private property that we identified as absolutely essential for any functioning society. The state cannot simply add a redistribution function to its property protection function – the former must always violate the latter. Both functions stand in logical conflict. Either the state is a property-protector or a property-re-distributor and property–re-allocator. The state cannot be both at the same time.

In the original concept of the state as organized force for the purpose of security provision, a person who rightfully obtained property through production or voluntary exchange with other members of the community should be able to rely on the state to protect his ownership from any violation by a third party. But the moment the state assumes any responsibilities for ‘social justice’ or ‘distributive justice’, the state has to become a private property invader itself, and every person has to fear that parts of their income and property – although lawfully obtained – will be taken by the state by force and reallocated to other members of the community.

It is clear that under a state that assumes ‘social’ responsibilities, any right to private property is ultimately conditional. Rights to property are only protected by the state as long as the state does not consider third parties more in need and morally more worthy of ownership of the property. Every piece of property in such a society is therefore under a cloud of uncertainty, and this stands in direct conflict to the original mission of the state. The element of uncertainty is magnified by the fact that while it is possible to lay down clear and universal rules for how property can be rightfully and legally obtained, and to therefore give every member of society clear rules that are knownbefore the act of what constitutes rightful and what constitutes unlawful attainment of property, any notion of what constitutes ‘distributive justice’ after the acts of production and trade must necessarily be arbitrary and subject to considerable change over time. It should not be surprising that all states have greatly expanded their range of redistributive policies and social legislation and regulation in recent decades. Once the state has taken it upon itself to pursue the logically non-definable goal of social equality or justice, it can ask for ever more wide-reaching powers. The idea of a minimal state has now become utterly unrealistic.

By contrast, any redistribution of property or income through acts of charity stands in no conflict to the institution of private property. The giver and the recipient of charity both know who the rightful owner of the property is. The recipient is aware that he is being supported by the generosity of others. The giver also retains control over who he wants to support and to what extent he wants to support that person. All of this changes when the state as monopolist of legal coercion becomes the middleman. The recipient does no longer consider himself dependent on the economic success and charity of others but now has a legal claim on support from the state – receiving support becomes the person’s legally enforceable right. With at least a minimum of income now secured, the incentives to change one’s behavior to regain economic independence are weakened. The original owner of property, meanwhile, has no longer control over where his money goes and will probably lose any interest in the plight of those who require support. By having been taxed by the state, he considers all duties to society’s weaker members fully discharged of.

The defenders of the welfare state will argue that it is more just to introduce an element of uncertainty into the lives of the economically independent than to keep society’s weakest members subject to the complete uncertainty that poverty and dependency on charity inevitably entail. While this is an appealing argument and probably a widely shared sentiment, it cannot dispel concerns over the fundamental conflict between securing private property on the one hand and persistently redistributing private property on the other. A welfare state is, fundamentally and conceptually, a persistent threat to the notion of private property, and private property is undeniably the economic foundation of any society. Additionally, any concept of ‘social justice’ is by definition arbitrary and will be the source of tremendous strife whenever it is supposed to guide practical politics. Furthermore, a state that concerns itself with the distribution of income and property among its citizens will never be a small state, or even a limited state.

The ethical case against the welfare state

The argument has so far been based on utilitarian considerations. But we can base it also on theories of ethics and justice. We have argued that a state that confines itself to the protection of person and property of its citizens against any unprovoked acts of aggression bases its right to legal force on the rights to such force by its individual members. The state assumes no privileged position but simply exercises the rights that the individual citizen already has but that the citizen may consider to be secured and enforced better through a state organization. This view, however, is no longer tenable when the state enforces redistribution of income and property.

While it is certainly within generally accepted principles of justice if I use proportional force to stop my neighbor from stealing or damaging my property or from inflicting injury on me or anybody in my family, it is certainly outside the established norms of justice if I decided to force my neighbor to support third parties, chosen by me, who I think are deserving of my neighbor’s support. By making ‘social justice’ its goal, the state claims a right to legal force that none of its citizens has. The state has now become a law upon itself, a ‘higher’ entity whose standards of right and wrong no longer correspond to those of its individual citizens. Any idea that the state could simply represent a convenient and efficient pooling of individual rights for the purpose of their better protection is now untenable. The state can do and does what nobody outside the state can do. The state qua state defines its own notions of morality and forces them upon its citizens.

We have now explained why any state that assumes larger responsibilities than the minimal state which confines itself to articulating, clarifying and enforcing the rights of its individual citizens to their own life and property must be in violation of its citizens’ rights to their own life and property and can no longer justify its existence on the based of any ‘social contract’, for such a contract can only ever encompass the rights that individuals already have and which they may then voluntarily transfer to the state entity as part of entering such a contract. We have also seen that a state that gets involved in the distribution of income and property among its citizens must undermine the institution of private property, which is essential for human cooperation in a market economy and the basis of any prosperous society.

From classical liberalism to anarcho-libertarianism

While such a minimal state – a pure protector of life and property of its citizens, an enforcer of laws and a provider of courts to facilitate the resolution of conflicts and the further development of the laws – would be a much better guarantor of individual liberty and of peaceful cooperation than today’s heavily interventionist, constantly meddling and increasingly authoritarian state, and while most libertarians today would be happy to see a return to this classical liberal vision of the minimal state, even this concept is still flawed for as long as the organization that calls itself a state claims to have a territorial monopoly on providing protection and security services and a monopoly of ultimate decision making in its territory (this is in fact a very good definition of the state by Hans-Hermann Hoppe). If the state not only uses legal force to protect life and property of its citizens but if the state, as all states presently do, uses force to stop citizens from voluntarily exiting the state’s framework and establishing or joining different and competing arrangements on its territory, then we will have to also reject this minimal state on the basis of the analysis above.

First, again, are utilitarian considerations. Providing security services also necessitates the use of scare resources. How many resources are to be allocated to providing security, which resources should be used and to what extent, are essential questions. Without private property, market prices and free entry into the market of security provision, the results will again be far from optimal. Even in the area of security provision market-based solutions are undoubtedly superior. This important argument was first developed by the 19^th century Belgian economist, Gustave de Molinari.

Second, we have considerations of ethics and justice. If the state claims to derive its legitimacy to use force from the individual citizen’s right to use force to defend his own life and property, this must mean that the individual’s rights are the origin of the state’s rights, and that the latter can never supercede the former. To put this differently, a state that claims a territorial monopoly on security provision and conflict resolution must argue that the individual who had the right to use force for defense of life and property in the first place has, by pooling these rights into a state-like organization, now forfeited these rights forever and is not to be permitted to reclaim these rights and enforce them by alternative means. This is logically an untenable position.

It seems fair to assume that law and security provision have a lot in common with money in that they, too, are subject to network effects. Just as the co-existence of many parallel monies is suboptimal, the co-existence of many different legal frameworks and security arrangements is inefficient. But none of this means that individuals have not the right to make alternative arrangements if they deem present arrangements to be insufficient or even a threat to their own life and property. We conclude that at a very minimum the minimal state must concede a universal and inviolable right of every individual or group of individuals to secede at any time.

A lot of what I argued above may appear to many like idle libertarian theorizing with little relevance to present political reality. But a crisis of the present state fiat money system is now inevitable. This crisis is part of a broader crisis of the welfare state and, in fact, of democracy. As these crises unfold, people will again revisit some fundamental questions about the size and role of the state and its relationship to the individual. Against this backdrop, discussions like this one could become very relevant indeed. As states everywhere go broke, as the promises of the cradle-to-grave welfare state are defaulted on, and as politicians lose control over their overstretched fiat money empires, citizens will again consider looking for and establishing more suitable and functioning alternatives to present state apparatuses.

I will finish this easy with a short extract from Lysander Spooner’s outstanding pamphlet No Treason, NO II from 1867, in which he delivers a fascinating interpretation of the American constitution that is an excellent presentation of the points I was trying to make toward the end of the above essay. Here is Spooner:

“The Constitution says:

‘We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’

The meaning of this is simply: We, the people of the United States,acting freely and voluntarily as individuals, consent and agree that we will cooperate with each other in sustaining such a government as is provided for in this Constitution.

The necessity for the consent of “the people” is implied in this declaration. The whole authority of the Constitution rests upon it. If they did not consent, it was of no validity. Of course it had no validity, except as between those who actually consented. No one’s consent could be presumed against him, without his actual consent being given, any more than in the case of any other contract to pay money, or render service. And to make it binding upon any one, his signature, or other positive evidence of consent, was as necessary as in the case of any other contract. If the instrument meant to say that any of “the people of the United States” would be bound by it, who did not consent, it was a usurpation and a lie. The most that can be inferred from the form, “We, the people,” is, that the instrument offeredmembership to all “the people of the United States;” leaving it for them to accept or refuse it, at their pleasure.

The agreement is a simple one, like any other agreement. It is the same as one that should say: We, the people of the town of A━━, agree to sustain a church, a school, a hospital, or a theatre, for ourselves and our children.

Such an agreement clearly could have no validity, except as between those who actually consented to it. If a portion only of “the people of the town of A━━,” should assent to this contract, and should then proceed to compel contributions of money or service from those who had not consented, they would be mere robbers; and would deserve to be treated as such.

Neither the conduct nor the rights of these signers would be improved at all by their saying to the dissenters: We offer you equal rights with ourselves, in the benefits of the church, school, hospital, or theatre, which we propose to establish, and equal voice in the control of it. It would be a sufficient answer for the others to say: We want no share in the benefits, and no voice in the control of your institution; and will do nothing to support it.”