The State by Anthony de Jasay (11 page)

essentially negative reason that it is best not to erect an apparatus for exerting power lest it should fall into the wrong hands, such a state would govern as little as possible. Since it would take an austere view of demands for public goods and of claims by third parties for amending, supplementing or otherwise overruling the outcomes of private contracts, there would be little common ground between it and the political hedonist who wants to get his good out of the state.

1.7.8
If a subject is to be contented, in harmony with a capitalist state, it would help him to be imbued with a certain ideology whose basic tenets are: (1) that property "is," and is not a matter of "ought" (or that "finders are keepers"); (2) that the good of the contracting parties is not an admissible ground for interfering with their contracts and the good of third parties only exceptionally so; and

(3)
that requiring the state to do agreeable things for the subjectgreatly augments the probability that the state will require the subject to do disagreeable things.

1.7.9 The first tenet is quintessentially capitalist in that it dispenses with a justification for property. Some say that Locke has provided an ideology for capitalism. This seems to me off the mark. Locke taught that the finder is keeper on condition that there is "enough and as good" left for others, a condition calling out for egalitarian and "need-regarding" principles of tenure as soon as we leave the frontier and enter the world of scarcity. He also taught that the first occupier's right to his property springs from his labour which he "mixed" with it, a principle on a par with the several others which make the ownership of capital contingent upon deserts: "he worked for it," "he saved it," "il en a bavé," "he provides work for many poor people." (If he did not do any of these meritorious things, what title has he got to his capital? Already the case of "his
grandfather worked hard for it" becomes tenuous because it is twice removed from such deserts.) To the extent that the rise of capitalism was accompanied by no political theory which sought to separate the right to property from notions of moral worth or social utility, let alone succeeded in doing so, it is true that capitalism never had a viable ideology. This lack, in turn, goes some way towards explaining why, in the face of an essentially adversary state and its accompanying ideology, capitalism has shown so little intellectual vigour in its own defence, and why such defences as it has managed to muster have been poor advocacy, lame compromises and sometimes offers of honourable surrender.

1. The second basic tenet of a proper capitalist ideology should affirm the freedom of contract. It must affirm it in particular against the idea that the state is entitled to coerce people for their own good. On the other hand, it would leave it ragged at the edge where it could cut into the interests of people not party to the contract whose freedom is being considered. The raggedness is due to a recognition of the indefinite variety of possible conflicts of interest in a complex society. It would leave the contract unprotected against a certain indefiniteness of right, of either too much or too little regard for the interests of those outside, yet affected by, a given contract.
   
 

2. This danger, however, is to some extent taken care of by the constraint arising out of the third tenet. The demand of A to have the state protect his interest which is affected by a contract between B and C, should be tempered by his apprehension of the consequential risk of finding himself under increased subjection as and when the claims of others are being attended to, for that is liable to mean that his contracts will be interfered with. These
   

offsetting motivations can be more formally expressed as two imaginary schedules present in people's heads. For every person A, there should be a schedule of benefits (in the widest sense) that he would expect to derive from the state's progressively increasing degrees of concern for what could be called third-party interests in the deliberately neutral vocabulary I am attempting to use in discussing contracts. Another schedule should list the negative benefits (costs) which he would fear to suffer as a result of the state's escalating solicitude for the well-being of others. It is, of course, vain to pretend to empirical knowledge about such schedules even if it is admitted that they express something which is liable to exist in the heads of rationally calculating people. However, it could be suggested that poor people (and not only poor ones), people who feel helpless, who think they usually get the worst of any bargain, would have a schedule of expected benefits from state intervention which was, at any practicable level of the latter, always higher than the corresponding schedule of expected costs. In other words, they could never get too much help from the state, and never mind the restrictions, servitude and pain that this may entail. Conversely, rich people (but not only the rich), resourceful, self-confident people who think they can shift for themselves, could be regarded as carrying in their head a sharply rising schedule of negative benefits which soon mounts above the schedule of positive benefits at any but the most minimal scale of government activity.

1.7.12
I advance no hypothesis about the scale and shape of the cost-benefit schedules which describe real people's attitudes to these questions, nor about the ones they "ought to" have if they all had the very highest order of political wisdom, insight and understanding. The implication of this duality is that the consequences of calling in the state to further one's interest are complex; they are partly unintended, and also largely unforeseen.

People endowed with the political talents that take them as close as possible to perfect foresight would, therefore, presumably have different attitudes from those who assess proximate consequences only.

1. This concept of individual costs and benefits as a function of the state's concern for third-party rights will serve for the purpose of defining adherents to the capitalist ideology as people who consider (a) that as government intervention increases, the total disadvantages they will suffer increase faster than the total advantages; and (b) that the former exceed the latter at a level of state activity which is somewhere short of the actual level, so that when living in an actual state, such people expect that they would feel better off if there were less government interference with free contracts.
   
 

2. This does not, of course, mean that people adhering to the capitalist ideology must seek to go all the way and attain the state of nature. It means, however, that at the margin of actual experience they would seek to restrain and "roll back" the state. It means that in terms of the direction of change, they would find congenial the capitalist state which (as we have seen) has intelligible reasons of its own to put restraints upon itself.
   
 

3. Such a state, it cannot be said too often, is an abstraction, an expository device. So is the person adhering to the capitalist ideology. He is not necessarily the abstract capitalist. He may be the abstract wage-earner. His identification with an ideology which (we contend) is the one par excellence conducive to the proper functioning of capitalism is not, as the Marxist theory of consciousness would have it, a necessary consequence of his role
   

in the prevailing "mode of production." He need not "exploit"; he may be "exploited." His consciousness with regard to the state can (if it really must!) be tautologically derived from his interest; if his personal pain-and-pleasure, cost-benefit, help-or-hindrance calculus tells him that he is better off under less government, he will be for less government. No a priori reason stops a wage-earner from reaching this conclusion, any more than it stops a real-life capitalist from wanting more government. Marxism, at least "vulgar Marxism," would condemn both for false consciousness, for failing to recognize their "real" interest which (again tautologically), is completely derived from their class situation. However, enough has been said by now to make clear that we find no convincing reason to suppose that a person is somehow making a mistake if his ideology is not the one purportedly "corresponding" to his class situation. A capitalist and a worker may both be allergic to the state they know; they often are; their reasons may well be largely the same.

1. All theories of the benign state, from divine right to social contract, carry the tacit assumption that the satisfaction or happiness of the state is for some reason and in some manner attained through the happiness of its subjects. No good reason is offered for this, nor a plausible manner in which it could take place. Therefore, there is no warrant for this rather demanding assumption, least of all when it is made tacitly. Rational action by the state links its power to its ends in a natural short-circuit, without passing along the long and winding loop which is, so to speak, the locus of the subjects' own conception of their good. With the best will in the world, no state, not even the most direct democracy or the most enlightened absolutism, can make its power run round such a loop. If it has heterogeneous subjects, it can at the very best, in the limiting case, further its own composite conception of their several goods.
   
2. False consciousness can, with luck, close the loop; for subjects need only believe that their ends are no different from the ends the state is in fact furthering. This, it must be supposed, is the meaning of "socialization." Such a result is promoted by the state's ability (and in particular by the role it assumes in public education) to render society relatively homogeneous. It is closely allied to the process alluded to at the beginning of this chapter whereby people's political preferences adjust to the political arrangements under which they live.*46 Instead of people choosing a political system, the political system can to a certain extent choose them. They need not with Orwell's Winston Smith, actually come to love Big Brother. If substantial numbers or perhaps a whole class of them develop sufficient false consciousness to identify their good with what the state is actually providing, and accept the collateral subjection without doubting the attractiveness of the bargain, the basis is laid for consent and harmony between the state and civil society, though the state is, inevitably, a presumptive adversary of its subjects.
   
 

 

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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2. The Adversary StateRepression, Legitimacy and Consent

Reliance on consent, as a substitute for repression or legitimacy, makes the state into a democratic and divisive force.

1. To tell one sort of state from another, one should first look at how they go about getting obeyed.
   
 

2. In organizations that survive, a few command and the rest obey. In all, the few dispose of some means of sanctioning disobedience. The sanction may be the withdrawal of a good, like partial or total deprivation of the benefits of belonging to the organization, or it may be an outright bad like punishment. By suitably bending such terms as command, obedience, punishment, etc. this can be recognized as true for such institutions as the family, school, office, army, union, church and so forth. The sanction, to be efficient, must be suited to the nature of the offence and the institution. For the prosperity of an organization it is probably equally bad to over- and to under-punish. Usually, however, the graver the appropriate sanction, the less is the discretion of those in command to apply it.
   
 

3. Max Weber, in an extension of this thought, defined the state as the organization which "successfully claims the monopoly of the
   

legitimate use of physical force."*47 The vulnerable aspect of this famous definition is the circularity of its idea of legitimacy. The use of physical force by the state is legitimate for no more fundamental and logically prior reason than that it has successfully claimed a monopoly of it and has thus become a proper state.*48 The use of force by others is illegitimate by definition (except of course under delegation by the state). Thus doubt is cast on the existence of the state in a society where masters could in their discretion flog their servants or union militants can dissuade fellow workers from crossing picket lines by unspoken threats of unspecified revenge. A definition which might resist counter-examples rather better would lay down that the state is the organization in society which can inflict sanctions without risk of disavowal and can disavow sanctions by others. There are sanctions which, due to their inappropriateness or gravity, risk provoking appeal or need backing up by a more powerful organization. Only the state's sanctions, for lack of a more powerful dispenser of sanctions, are certain not to be appealed.

2.1.3 This statement has the merit of expressing the state's sovereignty. If there is nothing "above" it, the state's decisions must be understood as final. However, for some purposes, it is sometimes convenient to treat the state, not as a homogeneous body with a single will, but as a heterogeneous composite made up of higher-and lower- and sideways-differentiated "instances." In such a view, though appeal is impossible against the state to something beyond it, it is possible within it, against the bad local potentate to the good central bureaucracy, against the bad minister to the good king, against the axe-grinding executive to the impartial judiciary. In fact, it was the unease the very idea of sovereignty, of no further recourse, aroused in sober minds which used to set them off on the grand quest for the Holy Grail of political lore, the
separation of powers, the supremacy of the legislature and the independence of the judiciary.