The Case for the Minimal State; H. Hazlitt

existing political arrangement or its operation. We may distinguish at least three major political problems, which have existed since the beginning of time: 1. Should there be a government at all, and if so, exactly what should be the extent and nature of its per mitted powers? Should these powers be precisely specified and limited, or is there an indeterminate area be tween certain minimum and maximum powers that may safely be left to popular choice? 2. Once the proper limits to the province and powers of the state have been decided upon, how can we stop the politicians in office from using their existing powers to ex tend and increase their powers? 3. By what method should the holders of office and power be cho665 666 THE FREEMAN November sen? For what terms, and so forth? How should their individual powers be allotted and delimited; and what provision should be made to assure that they responsibly execute those powers and no others?

It will be noticed that the political problem is twofold. It is not only to find what the best arrangements would be for choosing or changing political leaders or their powers, but for assuring that these arrange ments are adhered to. This is one of the chief reasons (if not the chief) why the political problem has al most nowhere been better than tem porarily solved. The ambition of men :for political power has im memorially led them not only to demagoguery and deceit, but to force, war and murder, to achieve and increase it. It is because of this that I have elsewhere raised the question whether the principal prob lems of politics are in fact solvable. eCls Politics Insoluble?" Modern Age, Fall 1976.) This is not on its face an encourag ing quest. But the answer is so im portant for the future of mankind (let alone the immediate future of our own country) that we are bound to extend every effort to try to get as near to a workable solution as we can.

One promising procedure is to ex amine the answers that have been offered historically by the great political thinkers ofthe past to try to determine where they went wrong or what .important problems they neglected to answer. We could do this chronologically beginning with the earlier answers, but I think it would be more interesting if we began with one of the latest answers and tried to find whether it satisfied us, and if not, why. So I shall begin by examining the answer offered by Professor Robert Nozick of Harvard in 1974 in his book Anarchy, State, and Utopia. This book has attracted more atten tion than any other in the last five years that attempted to solve the problem ofthe proper province ofthe state. It won the National Book Award in 1975. Away from Anarchy Not least interesting about it is that it begins with a patient and open-minded discussion of an archy-of the possibility of get ting along with no government at all. It considers the suggestion of the New Anarchists, for example, that honest and peaceable citizens could solve the problem of protecting their property and persons by joining and paying dues to private protective associations. Nozick shows how there would tend to grow up compet ing protective associations, that some of these might be little better than gangster associations, that some would be stronger than others, that it would not give anyone 1979 THE CASE FOR'rHE MINIMAL STATE 667 adequate protection to become a member of one of the weaker associ ations, and that in time one associa tion would tend to establish a monopoly. But if such an association had the power of excluding some people from membership, or failed to act with complete morality and im partiality, it would be intolerable.

Hence society would be forced to adopt a ((minimal" state. Nozick announces his main con clusions on the very first page of his Preface: nour main conclusions about the state are that a minimal state, liml ited to the narrow functions of pro tection .against force, theft, fraud, enforcement of contracts,and so on, I is justified; that any more extensive ,state will violate persons' rights not to be forced to do certain things, and is unjustified; and that the minimal state is. inspiring as well as right. Two noteworthy implications are that the state may not use its coer cive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protee tion." Now, this conclusion, though :it would be regarded as extreme not only by popular opinion but by the great majority of political writers in every country today, is one that has a respectable history, and will be regarded sympathetically by a large number of declared libertarians.

But I am troubled, most of the time, by the kind of arguments by which Nozick reaches his conclu sion. Going a little further, I am fre quently troubled by Nozick's style. It seems at times almost deliber ately obscure. It is interrupted by diversions, digressions, paren theses, involutions, excessive foot notes-by a sort of self-heckling. He constantly confronts us with log ic-chopping, with technicalities, and with abstractions without any help ful concrete references or illustra tions. Natural Law Coming to problems of substance, I am bothered by his explicit rejec tion of any form of utilitarianism, and his attempt to substitute ((natu rallaw" justifications of his position. Here he seems to have been influ enced by his Harvard colleague John Raw Is-though he rejects Rawls' conclusions in many other respects. But as not only Nozick but an astonishing number of young libertarians have recently been tak ing this natural-law position, it is worth examining in some detail.

Nozick dismisses utilitarianism because his conception of it, like that of Rawls and others, is essen tially a caricature. He sees the utilitarian as a fellow who judges conduct by its immediate effect on the balance of pain and pleasure, and makes a mechanical pain668 THE FREEMAN November pleasure calculus of the results of a particular action, without consider ing (Justice" and other values. One or two of the older utilitarians may have been guilty of giving such an impression, but this has little to do with the doctrine in its modern form. I have suggested in my book, The Foundations of Morality (1964, 1972), not only that the utilitarian ism of Bentham, and even of Mill and Sidgwick, has been in impor tant respects superseded, but that it would increase clarity of thought to abandon the old term entirely. I have recommended substituting the term Hrule-utilitism" because it comes much closer to describing a satisfactory moral system.

We should not take or judge an action in accordance with what we think would be its consequences considered as an isolated act. Not only can we never be certain what such consequences would be, but with such a moral code (or lack of code) we would never be able to depend on each other's conduct, and we would fall far short of that social cooperation by which we most fully promote our own and each other's ends. Moral action, for the most part, is action in accordance with accepted principles or rules. It is only when each of us can be de pended upon to act consistently in accordance with such principles or rules that we can depend on each other. It is only when we can rely on each other to keep our promises, to tell the truth, to refrain from theft, fraud and violence, and to help each other in emergencies, that we can best promote that social cooperation so essential to attain ing our individual ends.

These moral rules evolved dur ing the centuries, long before they were explicitly formulated or codified, and certainly long before any moral philosopher explicitly formulated any single rationale or test by which good rules could be distinguished from bad ones or the best from the second best. But the doctrine of utility, first put forward by David Hume and later elaborated by Bentham, Mill, Sidgwick, and others, was the first test that unified and clarified the whole area of mor als. The Pleasure-Pain Balance An Unsolved Problem The first attempts to generalize the proper aim of all moral rules such as rules conducive to promot ing ((the greatest happiness of the greatest number," proved to have some awkward shortcomings. Was the goal of ((pleasure" or ((happiness" sufficiently inclusive? Or suffi ciently noble? And when a~ action promoted one man's happiness~r even a hundred men's happiness-but at the cost of another man's pain or misery, by what kind of moral 1979 THE CASE FOR 'fHE MINIMAL STATE 669 arithmetic could we determine thE~ net balance? The utilitarians have never satisfactorily solved this problem-but neither has anybody else. Fortunately, because an ac, ceptable moral code prescribes prin ciples or rules of action rather than particular acts, there are very few occasions when the need for such moral arithmetic seriously arises.

More important than this, rule utilitists are not necessarily bound by any pain-pleasure principle, or even any happiness-maximizing principle. They can simply accept as the principles of moral action those rules that would lead to the most satisfactory or desirable results for society, without trying to be more explicit as to the exact. way of measuring such results. Anti utilitists, rejecting such a criterion, would then be obliged to contend that their substitute criterion should be -applied instead, even though it admittedly prescribed moral rules that would lead to less satisfactory or less desirable results for society. Justice and Utility One favorite contention of some anti-utilitists is that the utilitist cri terion must be abandoned because it does not include c)ustice." That this contention is being seriously pressed today is odd historically, because John Stuart Mill devoted the whole last third of his famous essay Utilitarianism in 1863 to discussing uThe Connection Between Justice and Utility." He concluded that: CtJusticeis a name for certain moral requirements, which, regarded. col lectively, stand higher in the scale of social utility, and are therefore of more paramount obligation, than any others."

But those who make t)ustice" the supreme if not the sole criterion of moral judgment regard it as a re quirement that must be met for its own sake, regardless of what conse quences it may lead to. The motto of these people is: Fiat justitia,. ruat caelum: HLet there be justice, though the heavens fall." But the real reason for insisting on justice is to prevent the heavens from falling. Those who insist that justice is solely an end in itself, and never a means to social peace and coopera tion or other· ends beyond itself, are also nearly always those who take a simplistic view of it. Everybody is supposed to know what tJustice" is: it is simply ttfairness", and we all know what is ufair." But through the centuries it has been the main func tion of thousands of legislators and jurists to decide what is justice both in abstract types of cases and in particular cases and circumstances.

Most of the non-utilitists and anti-utilitists in the past have been champions of Natural Law. The doc trine of Natural Law, it is true, has a very respectable history. It was 670 THE FREEMAN November promulgated or accepted by Plato and Aristotle, by the Stoics, by St. Thomas Aquinas, by Hugo Grotius and Samuel Pufendorf, by John Locke, by Jean-Jacques Rousseau, and by some of the Founding Fathers when they drafted or de fended the American Constitution. But it has always owed a large part of its appeal to its ambiguity. The physical laws of nature, of cause and effect, determine everything, includ ing, in one sense, human action. But this is something quite different from ((natural laws" that are sup posed to prescribe how men should conduct themselves. A Nebulous Concept The central difficulty with Natu ral Law is that no two of its votaries seem to have been able to agree regarding precisely what it enjoins.

For Aristotle it sanctioned the sub ordination of women to men and of slaves to Athenian citizens. For the Stoics it prescribed equalitarianism. For many it meant the plain dic tates of ((right reason," though no body could quite agree regarding what right reason prescribed. For others it meant the (tdivine will", with even more disagreement re garding what this commanded. Still others derived Natural Law from the law that existed in a Ustate of nature." But for some this meant savagery and for others a sort of Garden of Eden. According to the Declaration of Independence Uthe Laws of Nature" made certain uuna lienable" rights ttself-evident." Finally, Jeremy Bentham, toward the end of the Eighteenth Century, was moved to exclaim that Natural Law was unonsense on stilts." In his Principles ofMorals and Legislation (1780), he wrote (Ch. 2): uA great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so Ip.any chapters and sections of the Law of Nature."

This is not too unfair a description of those who are trying to revive the doctrine of Natural Law even today. They try to deduce its prescriptions from certain moral ttaxioms" taken from Locke or of their own devising. A typical one goes: UEvery man owns himself; therefore " It is also clear that some of the rules that the natural-law champions udeduce" are, in fact,disguised or crypto-utilitist rules. Thus John Rawls, an avowed anti-utilitarian, in trying to deduce the principles of justice (in his A Theory of Justice), begins by assuming a society of per sons uwho in their relations to one another recognize certain rules of conduct as binding;" and ttthese rules specify a system of cooperation designed to advance the good of those taking part in it (p. 4)." He 1979 THE CASE FOR 1~HE MINIMAL STATE 671 goes on to remark thattesocial coop·· eration makes possible a better life for all than any would have if each were to live solely by his own ef.· forts" and so on. But rules designed to ((advance the good". and make possible tea better life for all" arE~ precisely utilitist rules. The ideal of justice is an inherent part of rule utilitism, not a separate or compet ing concept.

No Firm Foundation The great difficulty with Natural Law, on the other hand, is not only that there is no agreed-upon code, but no agreement on the principles upon which such a code could be constructed. The greater part of th«~ Natural Law votaries are really in tuitionists in their moral philoso phy. I apologize for having given so much space to a seemingly irrele vant discussion of the relative merits of utilitist versus Natural Law standards. But it is not only Nozick who explicitly rejects utilitist tests in favor of Natural Law, but an increasing number of young libertarians who h~ve appar ently been influenced by him. So far practically all I have writ ten on Nozick's book has been nega. tive. Why, then, am I discussing his book at all? I do this because, while I think that Nozick often fails to base his reasoning on genuine first principIes, and while his logic often seems to me unduly technical or irrele vant, he more than makes up for this by many brilliant arguments on special points. I shall cite a few of these.

Nozick is especially good in analyzing the rhetorical nonsense behind many of the leftists' recent objections to capitalism. A fashion. able objection today is that workers lose their self-esteem by being fre quently ordered about, under the authority of others unselected by them, and by having to work at tasks that they do not regard as Hmeaningful." Nozick points out that even members of a symphony orchestra are constantly ordered about by their conductor, and not consulted about the overall inter pretation of their work, but nevertheless retain a high self esteem. More seriously, he points out that fragmentation and specialization of tasks are not problems peculiar to capitalist modes of production, but would go with any industrial soci ety. The reason is that they tend to lead to the lowest costs and the highest efficiency and production. Suppose (which is most probable) that dividing a firm's work force into Hmeaningful" segments, rotating the workers into different tasks, and so on, could only be accomplished at the cost of less efficiency and pro duction (as judged by market 672 THE FREEMAN November criteria)? Would the workers be will ing to accept lower pay in order to do this more umeaningful" labor? Or would consumers be willing to pay higher prices for the same goods, or get less of them, in order that this more ttmeaningful" work could be provided? Who would be willing to pay for such a reform, and how much? Would a socialist govern ment forbid ttnonmeaningful" work?

Labor Theory Refuted As a more important example, let us take Nozick's refutation (on pages 253 to 262) of Marx's labor theory of value and his general exploitation theories. Similar refu tations have been made before, not ably by Boehm-Bawerk, but Nozick's is an especially compact one. Marxist theory, he concedes, ttdoes not hold that the value of an object is proportional to the number of simple undifferentiated labor hours that went into its production; rather, the theory holds that the value of an object is proportional to the number of simple undifferen tiated socially necessary labor hours that went into its production." But then, it turns out (though Marx himself never got around to seeing or acknowledging this clearly) that the amount of labor that really is ttsocially necessary" is determined by the utility and value of the particular commodity that is made! As Nozick concludes: "What is socially necessary, and how much of it is, will be determined by what happens on the market! There is no ionger any labor theory of value; the central notion of socially necessary labor time is itself defined in terms of the processes and exchange ratios of a competitive market! . . . One might be left with the view that Marxian exploitation is the exploi tation of people's lack of understand ing of economics."

"Distributive Justice" I come to my final example. This is Nozick's theory of t(entitlements." He has argued that ((the minimal state is the most extensive state that can be justified," and that (tany state more extensive violates people's rights." He then addresses himself to the argument that a more exten sive state is justified in order to achieve (tdistributive. justice." One trouble with this whole con ception, he points out, is that it im plicitly assumes that goods have al ready been ((distributed" by some central source or according to some single principle, and that the duty of the state is to redistribute them ac cording to some other Upatterned" principle. But this overlooks the whole history of how the present udistribution" of goods came about. UThings come into the world already attached to people having entitle ments over them. From the point of view of the historical entitlement 1979 THE CASE FOR THE MINIMAL STATE 673 conception of justice in holdings, those who start afresh to complete ~to each according to his ' treat objects as if they appeared from nowhere, out of nothing."

How did the existing ~(distribu tion" of things come about? It came about because some people made the things they now hold, or because they were paid their marginal con tribution to output in wages, or be cause they inherited property, or the objects (or money) were given to them by their parents, their spouses, or their friends. So even if the state made some (~patterned" redistribu tion of wealth-(~to each according to his needs," or to each equally-that pattern would very quickly be upset by some people continuing to create more than others, or some people giving freely to others, or some peo ple voluntarily paying well for cer tain services, or to see or hear a particular professional athlete or performer, and so on. As Nozick sums up: HThe socialist society would have to forbid capitalist acts between consenting adults." The system of entitlements is de fensible, he argues, ((when consti tuted by the individual aims ofindi vidual transactions. No overarching' aim is needed, no distributional pat tern is required."

He goes on later to contend per-· suasively that: ((Taxation of earn ings from labor is on a par with. forced labor (p. 169)." Unfinished Arguments But in spite of many excellences, Nozick's argument for his minimal state is in the end not quite convinc ing. A good part of the reason for this is revealed in his own descrip tion of his procedure in his Preface: (~Part Ijustifies the minimal state; Part II contends that no more exten sive state can be justified. I proceed by arguing that a diversity of rea sons which purport to justify a more extensive state, don't. Against the claim that such a state is justified in order to achieve or produce distribu tive justice among its citizens, I de velop a theory of justice (the enti tlement theory) which does not re quire any more extensive state, and use the apparatus of this theory to dissect and criticize other theories of distributive justice which do envis age a more extensive state. . . .

Other reasons that some might think justify a more extensive state are criticized, including equality, envy, workers' control, and Marxian theories of exploitation." But his book, he goes on, is not cca political tract" but a ccphilosophical exploration." It does not pretend to be ((a finished, complete, and elegant whole," but cc a less complete work, containing unfinished presenta tions, conjectures, open questions and problems, leads, side connec tions, as well as a main line of ar gument. There is room for words on subjects other than last words."

674 THE FREEMAN No doubt there is. But it is pre cisely because Nozick has elected to write a book with a rambling and Hunfinished" argument, with so many digressions, that many read ers will find it unsatisfying and even occasionally irritating, that they will lose the thread of the main argument, and though finding it often persuasive, will in the end not find it quite conclusive. I am not saying that it could not have been made so. Nozick does con vincingly make his argument against anarchy. Others before him have advocated precisely his mini mal state, Ulimited to the narrow functions of protection against force, theft, fraud, enforcement of con tracts, and so on." It is an attractive ideal. But it has never been held by more than a tiny minority. If its appeal is ever to be widened to reach an effective number of thought lead ers it must be by a broadly under standable but orderly chain of rea soning, without confusing digres sions and without serious missing links, that makes its conclusion seem inescapable. , IDEAS ON UBERTY General Rules of Peace and Order ALL the laws of nature which regulate property as well as all civil laws are general and regard alone some essential circumstances of the case, without taking into consideration the characters, situations, and con nections of the person concerned or any particular consequences which may result from the determination of these laws in any particular case which offers. They deprive, without scruple, a beneficent man of all his possessions if acquired by mistake, without a good title, in order to bestow them on a selfish miser who has already heaped up immense stores of superfluous riches. Public utility requires that property should be regulated by general. inflexible rules; and though such rules are adopted as best serve the same end of public utility, it is impossible for them to prevent all particular hardships or make beneficial conse quences result from every individual case. It is sufficient if the whole plan or scheme be necessary to the support of civil society and if the balance of good, in the main, do thereby preponderate much above that of evil.

DAVID HUME, An Inquiry Concerning the Principles of Morals Anna Dillenberg WELFARISM THE UNITED STATES is moving with ever-increasing speed down the path at the end of which each indi vidual is just one small part of an all-important government. One of the greatest shifts in philosophy in this century has been away from the idea that what a man earned was his own, to spend or save at his own discretion. Now, the individual no longer works for himself, but for the horde of tax collectors and bureau crats ((running" the country. The reason is simple-people no longer pay for their own housing, educa tion, medical care; they ((charge it to Uncle Sam." How delightful-if the govern ment were an inexhaustible foun tain of wealth. But this is not the case. What the government spends, it must first take out of the pockets of its beneficiaries, by taxing and/or inflating the money supply. As Fred eric Bastiat put it, the public is under the spell of ((the great fiction, by means of which everyone· hopes to Miss Dillenberg Is a recent graduate (12th grade) of the Fairfax Christian SChool In Virginia.