Limited government as antipropertarian idealism

Nick Szabo, with his usual panache and aplomb, appears in the comments (why doesn’t Blogger have permalinks on individual comments? Is there any conceivable justification for this bizarre lacuna? Or is the Googlocracy already succumbing to its great doom of Actonization? Or perhaps a corollary, in which wealth enervates, and absolute wealth enervates absolutely?), and elucidates the turbulent history of state and sovereignty in England.

Nick, again like all philosophers who are not actually SS officers, is a fan of limited government. This may have something to do with the fact that he’s a scholar in the Anglo-American legal tradition, which (except for one man, Hobbes) has always stressed the rights of the many against the few. This is a noble tradition, both figuratively and literally, and when we point the rifles of reason in its direction we must experience some Burkean tremors.

Nonetheless, I have sworn the gran rifiuto and I am not about to repent. So it’s worth asking: does limited government actually work? Does it aim at a desirable purpose? If so, should we expect it to achieve this purpose? As usual, I’ll work praxeologically and consider any so-called “evidence” only after I’ve reached my conclusion.

Fortunately, these questions are easy to answer. The answers are “no,” “yes,” and “no.”

By limited government I mean juridically self-limited government. A juridically self-limited government defines its own powers, which may in practice approach those of Fnargl, with a legal constitution interpreted by a judicial branch.

There are two classes of limitation to consider: positive (enumerated powers, unenumerated rights—every power not explicitly granted to the state is proscribed) or negative (unenumerated powers, enumerated rights—every power not explicitly proscribed is granted).

Like Nick, I prefer the former. I am a stubborn and independent person. I have no interest in allowing the State to manage the contents of my intestines. The fact that it insists on doing so is a horrendous perversion and a source of continuing amazement. The fact that, though many have remarked on the great weirdness of the whole trend, the growth continues, is a source of some concern. It suggests that many people who oppose this trend may have chosen to resist it with remedies that either do not work, or in fact exacerbate the condition. I think it’s at least worth wondering whether juridically self-limited government is such a remedy.

Both positive and negative limited government have the same problem. The problem is that they rest on a magical ideal which does not in fact exist. First, there is no such thing as an independent judiciary. Second, if any such unicorn could be found, it itself would be the sovereign power.

Therefore, any system of limited government makes the state a judge in its own case.

The result is predictable. Limited government is a recipe for corrupting the judiciary. In adaptive terms, a political context of delimitationism will select against limitationist judges.

Worse, the judicial behavior most favorable to the health of the state is to remove limitations in fact, while maintaining them in theory. This deception may be wafer-thin, but however thin it is, it’s more useful than no deception at all. Any pretense of legal continuity makes life harder for political forces whose goal it is to maintain or restore limited government. The result is an environment that selects for pseudo-judges who operate a deceptive system of pseudo-law.

If the resulting pseudoformalist state respects any limits, it is probably in its interest to do so. As we saw in our discussion of Fnargl, the most absolute and amoral of powers can have good reasons to restrict its own actions and obey its own restrictions. To the extent that there still is such a thing as “constitutional law,” it is probably best explained by such interests.

For example, Fourth Republic (1933-) constitutional law maintains a negative theory of limited government. It enumerates rights such as freedom of the press, and guards them jealously. So jealously, in fact, that actions which would be criminal if undertaken by non-press actors are in practice legal for the press.

One could take this as a sign of the Fourth Republic’s profound commitment to freedom. Or one could take it as a sign that the modern press is in practice a branch of government—effectively the “intelligence bureau” Walter Lippmann proposed in Public Opinion.

Of course, free speech in the Fourth Republic is not (at least at present) restricted to the Press. Anyone can say whatever the heck he wants, as I am doing now. However, this is not at all inconsistent with the interests of the state. It makes it harder for us to notice how much the combination of mainstream media, public education, and accredited universities resembles a comprehensive official information system. Or how little the whole system would have to change if it was in fact reorganized as a single Department of Knowledge.

In fact, what’s so striking about the Fourth Republic is how much it resembles the kingdom of Fnargl. The enumerated freedoms it upholds, like freedom of speech, are conducive to its health. Those it has discarded, like freedom of contract or freedom of arms, are distinctly unsalutary. And like Fnargl, the Fourth Republic is a revenue maximizer, recently converted (under the flag of “neoliberalism”) to the merits of shearing, not butchering, its sheep. Such fresh worthies as the Cato Institute now stand ready to assist it in the important and delicate task of distinguishing between wool and mutton. Presumably in the future we will all, like Markos Moulitsas, be “libertarian Democrats.”

I have no objection at all to this trend. Like Deng Xiaoping, I don’t care if the cat is black or white. My view is that any proposed revision of the Fourth Republic is unlikely to succeed if it implies any substantial reduction, or even reallocation, of that entity’s revenue stream. This is why I favor converting the Fourth Republic into a formal company whose tenants and serfs are its present taxpayers, and whose shareholders and creditors are its present beneficiaries.

What I do object to are the lies. Fnargl ruled by the power of death. The Fourth Republic has the power of death, as well, but this is not the principal force by which it rules. Principally, it rules by tricking its subjects into believing that it exists to serve their interests. No serious person can defend this absurd proposition, but many accept it as an unconsidered assumption.

Reformalization—converting taxpayers into tenants, and beneficiaries into noteholders—is best seen as a kind of “truth and reconciliation” response to the series of coups against the law that saddled us with the Fourth Republic. It is in the Fourth Republic’s interest because the Fourth Republic’s information monopoly, which is the root of its power, is not sustainable in a world of peer-to-peer networks. It is in our interest because most of the Fourth Republic’s abuses are the result not of its unlimited powers, but of the inefficiencies and conflicts that are inevitable attributes of an organization of unprecedented size and wealth which cannot identify or distinguish between its owners, its customers and its employees.

As we’ve seen, it is not difficult at all to refute the idea of limited government. There is no deductive reason to think that this design should work. There are no historical cases in which it has worked. The idea simply makes no sense at all. Yet all believe in it.

Where have we seen this phenomenon before? Hm.

What I suggest is that limited government is a form of idealism, rooted like all Western idealisms in Christianity. Specifically, it is a member of the antipropertarian family of idealisms.

Antipropertarianism is a very natural idealism that has been reinvented probably more times than anyone can count. Once you admit that all humans are spiritually equal, and a duke is no better than a beggar, it’s pretty hard not to ask yourself why the duke is a duke and the beggar is a beggar. If the answer is that the duke was born a duke, whereas the beggar was a farmer until his crop failed last year, anyone who has even the slightest shred of interest in building God’s kingdom on earth can see that there’s a small problem here.

If you are disposed to any species of antipropertarianism, almost the first abuse you’ll think of is the idea that one man, or one family, can own an entire country. (Or even the people in it—as, for example, the US alone among nations claims the right to tax its expatriate serfs.) Therefore, you will try to come up with some design in which the country is owned or controlled in some sense by its residents. You will make it not a kingdom but a community.

It is impossible to argue with the ethics of antipropertarianism. Clearly the estate of the newborn duke is arbitrary and not, in any conceivable moral sense, deserved. The reason I believe in property is simply that property prevents violence, and I hate violence. In my world, the estate goes to the duke because it is the only way to keep everyone from fighting over it.

Since the ideal of limited government—that is, the idea that sovereignty cannot be the rightful property of anyone, individual, family or corporation—has become general, we have seen an extraordinary level of violence, which appears to be connected to the question of who should control and receive the revenues of sovereignty. Law has declined and sovereignty has become much more absolute. And its behavior is often pointlessly burdensome in ways which do not seem related to maximizing revenue, and do seem related to the struggle for power.

I do not regard this as a good outcome. And I note that this result is very similar to what we get whenever any antipropertarian idealism gains currency. Property does not actually disappear. It becomes murky. It is the source of constant tension. It is informalized. It seeps deep into committees whose workings are obscured even to their members. When we ask who controls the United States, the only possible answer is that it’s very complicated. The same answer applies to, say, the Gambino family.

Nick’s short overview of English legal history is actually, I think, good evidence for the problems that result from poorly-formalized power structures.

By right of conquest, William I claimed allodial rights to all England—total ownership. As the commander of the conquering army, he personally approached the powers of Fnargl. It might be an overstatement to say there was no one in England who lived if William wanted him dead, but it was presumably not too much of an overstatement.

But William did not have the Finger-Snap of Death. His power was political, not physical. It was based on mastery of an organization, a mastery that was inherently informal. It certainly was not automatically inherited by his descendants.

The result was that, over time, the (informal) political powers and (formal) legal rights of the Crown diminished in a rather interesting fashion. Both political powers and legal rights decreased, broadly if not monotonically, to at least the Tudor era. As Nick points out, the Crown granted many formal attributes of sovereignty—such as franchises for private law enforcement—to various barons and other subcontractors. Ultimately such delegations are the (formal) source of our rights to, for example, defend our property against trespassers.

The problem with this process, and I would say the general reason for the demise of the whole intricate structure of medieval law, is that it became unclear whether these grants were mere delegations of power—existing so long as they served the sovereign’s desires—or whether they were irrecoverable alienations, as if the Crown had, say, sold Wales to France.

In other words, a disparity arose between political and formal reality. Did the King continue to respect the rights he had granted because he wanted to, or because the grantees had become powerful enough to protect themselves against him? This went back and forth quite a few times. It was frequently submitted to the test of arms. In the end, of course, the Crown preserved its symbolic status in exchange for de facto abdication and expropriation.

The situation now is of course different. As both Nick and Kuehnelt-Leddihn note, today’s “democratic” governments are far more absolute than any monarchy in history, and they brook no hint of physical opposition. This is in large part the result of changes in military reality.

I am a decentralist. I would prefer not to live in a global Fnargocracy. I would much prefer a world of tens or hundreds of thousands of absolutely-sovereign states, each competing avidly for my business.

But the facts of life is that if, in this world, all these states decide to merge into a Fnargocracy, there is nothing to stop them. No popular rebellion can succeed against a determined modern military force (colonial wars may seem to refute this proposition, but they don’t—I will discuss this at great length later). The era of cobblestones and brickbats is over.

Therefore, it strikes me that the era of expropriating governments is also over. And I blame the failure of the various libertarian movements on their failure to realize this, and their insistence on trying instead for some kind of repeat of the American Revolution. The reality is that if the American colonies had somehow made it to the age of the telegraph and the machine-gun, we would be ruled by Tony Blair and his Eurocrat henchmen, now and forever.

If this is true, revenue-maximizing government is not a medieval atrocity from the past, but a permanent feature of human history whose rare exceptions are unstable and undesirable. This does not mean we have to live with the mindless, appalling institutions that rule us at present—quite the contrary. What it means is that any plan for rationalizing these institutions should avoid the fatal mistake of trying to create a vacuum of power, an error into which all systems of juridically self-limited government inevitably fall.