The State by Anthony de Jasay (31 page)

1. The essential point to grasp is that when chateaux burn and heads roll, when the rich are expropriated and the privileged get their come-uppance, the envious may feel elated that justice is being done, that their "relative deprivation" is being redressed. They may draw satisfaction from a single act (expropriation), or possibly a protracted process, though the manifestation of change is less dramatic than in the act (take the erosion of historic great fortunes through taxation). The reverse should also be true. If B wins the lottery, or marries his daughter to a desirable catch, A's feelings (if any) of envy would be provoked by the event, the stroke of luck, the undeserved windfall accruing to B, even if after the windfall B is still the poorer man of the two. On the other hand, a state of affairs (a given inequality) may (or may not) engender envy independently of the sensation engendered by the event, act or process which brought it about.
   
 

2. The burning of the chateau, the breaking up of great fortunes, or the taking of the rich man's money and its transfer to the poor man will quite likely engender satisfaction in the envious, but only while the drama of the move from one state of affairs to another lasts. Once the chateaux have all been burned, they cannot be burnt again. While the hovel-dweller may have been envious of the chatelain, he now has cause to feel envious of the Jacobin lawyer, his airs and the former Church property he managed to buy for funny money ("assignats"), and nothing permits us to
   

suppose that his envy has become less intense as its trigger has changed. But if the inequality is a mere trigger and envy's source lies in enviousness, what is the point in fighting inequalities which will yield to levelling, when there are always many more which will not?

1. Regardless of the breadth of levelling measures, any conceivable real-life situation must still contain a sufficiency of inequalities which are impervious to levelling, compensating and which resist any other practical remedy too. Envy is provoked by a person comparing his situation with the situation of certain others and perceiving inequalities. If one perceived inequality is eliminated, and the person is a comparing sort, his antennae are soon bound to make a half-turn and perceive another inequality (in terms of which he is "relatively deprived"), out of the countless ones which might catch his eye, because such scanning is inherent in his need to see his situation in relation to that of others-or else he is immune to envy.
   
 

2. Demands for narrowing and, at the limit, removing certain inequalities, supported by the promise that envy will decrease as a result, do not seem to have a more compelling claim to being granted than demands which are supported by recourse to utility, justice, liberty, or demands which come uncluttered by any supporting moral argument. The promise of relief from envy is a redundant appeal to liberal credulity. The liberal does not need the promise. He is predisposed to approve such demands anyway. He has an "existential" need to adhere to his own ideology and to recognize in the redistributive policies of the state the production of incontrovertible social value.
   
 

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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4.
Redistribution"Fixed" Constitutions

Self-imposed limits on sovereign power can disarm mistrust, but provide no guarantee of liberty and property beyond those afforded by the balance between state and private force.

1. With its key always within reach, a chastity belt will at best occasion delay before nature takes its course.
   
 

2. In the state of nature, people use their life, liberty and property for purposes adopted by themselves. A long tradition of political thought holds that this sets them at cross-purposes, leading to loss of life, insecurity of property and inability to produce the
   

"optimal" assortment of public goods. The extreme form of this view, i.e. that in the state of nature no public goods can be produced, is probably no longer widely held. The state of nature is coming to be viewed as capable and likely to produce some public goods, but not as many and perhaps not as much as civil society endowed with a coercive state.*1 The presumption is that endowed with a state, society is enabled to make the sort of choices which lead to more resources being devoted to public and less to private goods. The modern idea that the state is a device whereby society can more nearly approximate the resource allocation which it really prefers, implies a much older belief that the "general will," or social preference, or collective choice (or whichever species of the genus is invoked) has some ascertainable meaning.

1. In coercing them to realize the general will or to give effect to collective choice, the state is competing with its subjects for the use of the scarce resource that is the liberty and property of each. It restrains them in what they may or not not do and forces them to devote part of their efforts and goods to the state's purposes rather than to their own. The same long tradition of political thought suggests that in doing this, the state is in fact forcing them to be happier (or better off) than they would otherwise be, for without at least latent coercion they could not resolve the notorious state-of-nature dilemmas of non-cooperation and free riding. At the same time, competition between the state (which successfully maintains the monopoly of force) and its subjects (whose one strong recourse is rebellion-usually risky, costly and hard to organize) is prima facie so lopsided, so grotesquely unequal, that if the state stops anywhere short of enslaving its subjects, cogent reasons are needed to explain why.
   
 

It is hard to formulate anything more crucial to political theory than this question, which has been implicitly answered each time historians have given a satisfying account of the fall of despotism, of stalemate and accord between a king and his barons, or of how a given state has ruled by custom and law, which constrained its choices, rather than by its own discretionary reason which did not.

1. This chapter is mainly devoted to the largely unintended consequences of securing political consent by redistribution. The pattern of redistribution develops as a result of both the state and its subjects pursuing, "maximizing" their ends, interacting with each other to produce redistributive outcomes. These must be such that neither party can for the time being further improve his position within them. Broadly speaking, they have to reflect the balance of forces and interests concerned. Formal agreements between the state and its subjects, such as laws and constitutions under which the state is supposed to be restrained from maximizing its ends, either reflect this balance or they do not. If they do, the limits of state encroachment on the private rights of liberty and capital are naturally set by the power of the owners of these rights and a constitution or other formal agreement merely proclaims accomplished facts. If they do not, any such agreement is precarious. In abiding by it, the state is not in equilibrium. Its needs and ambitions will eventually lead it to circumvent, reinterpret, amend or simply disobey laws and constitutions. The better to clarify their role, or rather the reasons for their conspicuous absence from the subsequent argument, I start this chapter with what may seem a digression about the rule of law and constitutions, considered as binding agreements limiting the state's discretion to dispose of its subjects' liberty and property as and when its best interest dictates.
   
 

Montesquieu thought, oddly, that freedom could be defined as a state of affairs where man's actions were constrained by law only. Such a definition, besides other weaknesses, seems to rest on some implicit belief in the quality, the specific content of law. Unlike rules in general, characterized by their source and enforcement (By whom? Under what sanctions?), to be consistent with freedom law must also have some particular content-for instance it could be thought of as good, benign or perhaps just. Bad law either must not be called law, or it must be agreed to have the redeeming feature that at least it replaces arbitrariness and disorder by a rule. In the political domain, law-even bad law-has from time immemorial been prized as restraint on the sovereign, as the subject's shield from the despot's caprice. Impartial even when unjust, general and predictable, it provides some sense of security against the random use of state power. Significantly, the distinction republicans since Titus Livius have drawn between tyranny and freedom, runs not between good and bad law, but between government by men and the government of law. Hence the much too trusting definition of freedom in the Spirit of Laws. Subjection of the state to law, even to law of its own devising, has strangely enough been felt to be sufficient for disarming its tyrannical potential. Not till after the Jacobin experience did political theorists of the calibre of Humboldt, Guizot,*2 and J. S. Mill think of the possibility of the clever state creating self-serving laws which it could safely obey, while retaining its capacity to override the purposes of individuals in favour of its own.

4.1.6 If the rule of mere law is not a sufficient condition for an acceptable reconciliation of conflicting claims upon the subject's liberty and possessions and for protecting him from the powerful appetite inherent in the adversary nature of the state, one cannot aim at less than the rule of good law. Historically, two kinds of
solutions have been pursued to the problem of how to get good law. One was not only to oblige the sovereign to obey his own laws, but to constrain his law-giving powers by getting him to agree to what republican Rome called legum leges-a super-law or constitution which can effectively make bad laws "illegal." The other, more direct solution was to secure adequate participation by all concerned in the design of laws. Either solution, "constitutional monarchy" with the state alone making laws but only within the bounds fixed by the constitution,*3 and democracy with the state striking ad hoc bargains with its subjects over legislation, is designed to ensure "fair and equal" competition between conflicting public and private ends. The latter ad hoc solution is roughly the one England stumbled into in 1688, liking it and pushing it to its logical fulfilment in 1767; since then, a majority in Parliament has been sovereign-it can make any law and govern any way it sees fit. Its sole constraint on law-making is a cultural one. This confluence of the constitutional and the democratic solution corresponds by and large to the American one, designed by the Founding Fathers with a rare combination of erudition and worldly wisdom, crowned by an astonishingly long run of success in which design must have played some part beside luck, and since copied in some of its features by many other states.

1. The point about having both belt and braces, i.e. a "fixed" constitution in a democratic state, where laws are in any case the outcome of negotiated bargains between it and civil society, is the relatively subtle one that the threat to people's liberty and property can just as well come from the sovereign people as from the sovereign king. The danger, then, lies in sovereign power and not in the character of the tenant who holds it.
   
 

For obvious reasons, a sovereign assembly, a demos or its representatives, and a sovereign monarch or dictator tend to present rather different kinds of dangers. Which is worse is at root a matter of personal taste. The view that the assembly is liable to be more unjust than the king was quite prevalent at the Philadelphia Convention disgusted by Westminster, and in the secessionist South rebelling against a Northern majority. Ordinarily, however, it is easier to conjure up the image of a personal tyrant than Pitt's "tyranny of the majority." Liberal thought cannot readily reconcile its faith in the benignity of popular sovereignty with approval of constitutional devices which would shackle it, hamper it in doing good and in some cases in doing anything very much at all. No wonder that in the USA, for some decades now, there has been a tendency for the separation of powers to be overcome by reciprocal swaps of functions and attributions, if not by their unilateral usurpation. Thus the executure is making a great deal of administrative law, the legislature is making foreign policy in addition to running the economy, while the judiciary shapes social policy and directs the struggles of classes and races. If the three separate branches of the American federal government were finally all merged into the Harvard Law School, much of this might be performed in a less roundabout manner. (Paradoxically, that day might conceivably mark the beginning of the end of the ascendancy of lawyers over American society.)

4.1.9 There is something threatening and basically "unfair" in the very notion of the sovereign state competing with its subjects for the use of their resources-"unfair" in the simple, everyday sense of an almost obscene disproportion of size and force. No single person has much of a leg to stand on, while the idea of banding together to tame the state promptly raises one of the first questions in statecraft, Why ever should the state let them band together? With
the odds looking so blatantly unfavourable to anyone the least bit mistrustful, it is as plausible to predict despair and pre-emptive rebellion by people likely to find themselves in the minority as to expect them peacefully to submit, under the democratic rules, to the appetite of the prospective majority.