Frank van Dun, "Philosophical Statism"

From Hayek Revisited, edited by Boudewijn Bouckaert and Annette Godart-van der Kroon, Edward Elgar Publishing, 2000, 89-108.

Introduction

Is the welfare state neutral to personal morality?”² In today’s welfare states one can find numerous life-styles existing side by side. These indicate a wide scope for “personal moralities,”³ but do not prove that the welfare state is “neutral” to them. Welfare states interfere in more or less onerous ways with the business of (private) life with police checks, administrative controls and a vast arsenal of regulatory, penal and/or fiscal regimes. Some of the regulations may be more or less reasonable attempts to minimize the risk of one person inflicting irreparable damage on others or their property, but a great many are not. It is not too difficult to see the hand of special (economic, ideological, even sectarian) interests in the bulk of the rules and regulations on the books.⁴

The state’s non-neutrality is often an unintended outcome, but not always. Officials introduce new regulations with proud declarations of their intention to enforce particular “moral choices,” to treat one thing as a “merit good” and another as an evil. They also justify intrusive policies with blatantly paternalistic arguments—remember their promise, or was it a threat, to take care of us “from the cradle to the grave”—with self-congratulatory references to an unspecified “responsibility of the government.” There is no more direct negation of the role of private morality than the claim that one discharges one’s own responsibility by depriving others of the opportunity to exercise theirs. As far as protection against onerous interference is concerned, the presumption of innocence—which is the linchpin of the rule of law—counts for very little. One delinquent person or business entity is often enough to let loose the regulatory juggernaut on everybody in the same group or category. In short, the question, whether the welfare state is neutral to personal morality, is largely rhetorical and academic.

Behind the question there is the presupposition that the welfare state should be neutral to personal morality. This presupposition, of central importance to liberal political thought, is much more interesting than the question itself. It is equivalent to the idea that the state should protect liberty, and consequently should not interfere with it unless it does so, occasionally and exceptionally, to meet some clear” and imminent threat to life or liberty itself. As Locke defined it, liberty consists in a general respect for the rights of all to “order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.”⁵ Liberty is neutral to personal moralities, i.e., to the ways in which people order their actions within the bounds of Natural Law. Given the uncertainty and the diversity of conditions they have to face, and given the fact that they cannot fall back on infallible “innate ideas,” human beings need liberty to cope with life as well as they can. This liberty is not freedom from obligation or responsibility. It is freedom from obligations unilaterally imposed by others. Or, to put it positively, it is freedom to assume obligations and responsibilities for oneself. The state, as a protector of liberty, has no business interfering with how people cope with life, only to see to it that they do so without failing in their natural and self-contracted obligations towards others. The state should be neutral to personal morality.

The liberal thesis that neutrality is a necessary condition of legitimacy of the state, raises a number of questions. I shall begin with a short discussion of the neutrality thesis itself, and then air some misgivings about the idea of a liberal state. The bulk of this paper will be devoted to what I call “the philosophy of statism.” By “statism” I mean the idea that the state is at once a necessary condition for the existence of society and the form of its perfection. As we shall see, statism is radically opposed to the idea of a neutral or impartial attitude towards personal moralities, even to the point of denying that a personal morality is of any value to man.

Liberalism (as I understand it⁶) is not primarily a theory of the state. It is a theory of social existence, of its basic structures (law) and techniques for maintaining these (justice), and its dynamic aspects (the continuous exchange of goods, services and ideas—the “economy”—and communication of signs of approval and disapproval, sympathy and antipathy—“morality”). Its political theory, or theory of government, addresses the problems of maintaining a general respect for law, and of providing for the elucidation, administration and enforcement of rules of justice. “Law” refers to the bonds or requirements of social existence. Without law, or justice, there is no social mode of existence, hence no society.⁷ To understand this statement, the reader should keep in mind that the term “society” is notoriously ambiguous. It is often used to refer to particular organised or exclusive groups, clubs or companies (associations or organisations with well-defined sets of leaders officials: directors, managers, governors—and members, a common goal and strategy, a stock of “social” capital).⁸ In liberal political philosophy, however, “society” should be understood in an inclusive sense, i.e., as referring to a mode of coexistence and interaction.⁹ The requirements of (inclusive) society are freedom, peace or friendship. Each of these terms denotes the same phenomenon: relations are friendly to the extent that no one of those involved poses a threat to the person or the possessions of another, people are free to the extent that no other by force or threat prevents them from being masters of their own life or property, and they live in peace to the extent that not one of them engages in actions that threaten another’s person or his possessions. The presupposition of each of these concepts is that people are separate beings, capable of independent action and judgement, yet vulnerable and interested in one another, and therefore dependent on one another. Moreover, it is also presupposed, that human relations are not necessarily based on force or physical conditioning. They can and do rest also on speech, i.e., they are to some extent logical or rational. The traditional expression of this presupposition is that society rests on ius, i.e., a bond originating in solemn speech (iurare) by which one person obliges himself to another who in turn obliges himself to the first. Obviously, speech (the whole process of coming to a mutual understanding and agreement by questions and answers) presupposes the physical aspect of the separateness of persons, of their actions and words (the physical aspect of law). In this way, the idea of natural law refers to the fact that it is in principle always possible to identify persons and their work (what they do and say), while the idea of ius refers to the fact that there is a way of rearranging these natural boundaries between persons by agreement, without violence.¹⁰ Justice (iustitia, i.e., the ability and willingness to act according to ius) translates these natural facts into rules of conduct that is compatible with the requirements of (inclusive) society. The institutions of property, contract and personal liability reflect the separateness of persons in a direct manner; and so does liberal politics (organising for mutual protection and negotiating solutions in cases of disagreement and conflict according to the requirements of justice).

The neutrality thesis is a direct implication of the liberal concern with law or justice. The requirements of society are the same regardless of the particular circumstances that may prevail at one time or another, in one place or another. They are also the same regardless of the ends, values, preferences, needs, ambitions, beliefs, expectations, and so on, of the people engaged in an interaction. They are, in this very precise sense, neutral to the many ways in which people try to cope with life, as long as they do so in a friendly, peaceful manner, without threatening the freedom of others. Each person needs a “personal morality” because each has to go through a life that is uniquely his own,¹¹ but law refers directly to the social mode of existence, and only indirectly to the life of any person. A person “needs” law only if he wishes to live in society.

Academic philosophers often make fun of the liberal notion of neutrality and the corresponding idea that what is lawful is an entirely different matter from what is moral. The fun comes mostly from the fact that the thesis seems to invite the application of a favourite stock-in-trade of academic philosophy: a dialectical argument that seeks to defeat a thesis by showing that it contradicts its own presupposition(s). Concerning liberal neutrality, it has been said that it is a myth because in order to establish the value of neutrality in the first place, one must deploy reasoning that ends up undermining the moral/legal distinction on which neutrality rests. For to adhere to the value of neutrality is patently to take a moral position: it is to say that it is better for the law to allow people to do what is “morally wrong” than to force them to do what is morally right.”¹²

The suggestion is that we have to “establish the value of neutrality of law” by “moral reasoning,” and that we cannot consequently deny that the neutrality of law is merely a moral value. I reject the suggestion. As we have seen, neutrality is a characteristic of law, and law reflects the objective, factual, requirements of social existence. To establish just what these requirements are, no moral reasoning is needed. From this natural law perspective, the law is what it is, and the question, whether it is better for law to be or do this or that simply does not arise. The question makes sense only when “law” is equated with “legislated commands,” but this equation refers not to the law-as-ius: it refers to law-as-lex.¹³

Clearly, then, the argument quoted above obfuscates the issue—and not just with its unwarranted question-begging supposition that things are morally right or wrong regardless of context, regardless of the persons involved in a situation. Note the use of the phrases “the law allows” and “the law forces.” It may make sense to discuss what the law allows or does not allow (since actions may be compatible with or according to law, or not); but to say that the law forces does not make any literal sense at all. If it is merely a way of saying that the ruling authorities use force, the question is whether what they enforce is that people act according to law (ius), or whether it is merely their own rulings (leges). It is one thing to ask whether it is better (for whom?) that the rulers allow people to do what the rulers consider to be morally wrong than that they force people to do what they decree to be morally right. It is another thing to ask whether the requirements of society allow people to have different moral convictions or not. Only the latter question is relevant to our discussion. The answer does not depend on “moral reasoning.”¹⁴

Besides, is to adhere to the value of neutrality really a matter of saying that it is better (again: for whom?) that the rulers behave in one way rather than another? It seems to me that to adhere to the value of neutrality is to say that, even if one has the power to do otherwise, one intends to honour the requirements of society and not to impose one’s own ideas about what is better on law-abiding people. It is only after I have been given assurance that another will not impose his views on me, that I can be receptive to moral reasoning in a meaningful sense: reasoning that can stand the test of being spoken out loud in the presence of independent, unintimidated critical minds. But then it is obvious that we establish that a position is moral by showing that it recognises the priority of law over anyone’s convictions concerning what is good, better or best. To say that we establish the value of neutrality by moral reasoning is to put the cart before the horse.

To see the point more clearly, let us consider the case of one who refuses to adhere to the value of neutrality, who intends to force us to comply with his convictions. Let him rant as much as he wants about our alleged moral deficiencies, are we going to take his ranting for moral reasoning? No. Are we going to assume that his willingness to use force, is proof of the truth of his convictions? No. If he persists and actually begins to move on us, we should see him for what he is—an outlaw or enemy—and act accordingly. The meaning of his actions is that it is better for him to make war than to live peacefully in society with us, and, because it takes two to tango, that it is better for us to make war on him than to pretend that he is in society with us. As Democritus said some twenty-five centuries ago: “If a thing (i.e., beast or man) does injury contrary to right it is needful to kill it. This covers all cases. If a man does so, he shall partake in a greater portion of right and security in any social order.”

It seems to me that the liberal neutrality thesis stands firm. However, note that it refers to law, not to the state. In fact, nothing in the preceding arguments refers to the state. It is of course true that the state should be neutral, if we assume that the state is merely an organisation for maintaining law. However, if this assumption were correct, the state would have to be organised strictly according to law-as-ius. No historical state satisfies this requirement, and—this will be the argument of the following pages—the idea of the state was constructed precisely to undercut the claim that there is or can be such a thing as law, or peaceful, friendly and free co-existence, unless it is imposed by the state. It is time, then, to turn our attention to the state, that dominant political institution of modern times.

Liberal State?

A state typically holds a sovereign legislative power as well as a virtual monopoly of the means of violence (its executive power), the power of the sword as well as the power of the purse, the power to tax as well as the power to spend. The characteristic feature of the state, in theory and in practice, is its claim to legislative sovereignty. The state distinguishes itself from other systems of rule by its claim to be above the law in the very specific sense of being the supreme or only source of law itself (and not just of its administration and enforcement): Quod principi placet, legis habet vigorem. This is a far more radical “principle” than the traditional rule that the king or ruler is not bound by his own commands: Princeps legibus solutus. The latter maxim means that the king’s laws (leges) cannot be invoked against the king himself, and perhaps also that he enjoys immunity with respect to the sanctions for transgressing the law. It does not say anything about his having a lawful right to bind anyone by his mere commands (leges), when these are not founded on justice (i.e., designed to maintain or restore adherence to law).

It should be clear that there is a clear tension, perhaps an outright contradiction, between the liberal view of society as an order of law on the one hand, and the idea of a state on the other. The contradiction is most evident when the liberal view is restated in terms of natural rights and the requirement of consent. A natural right (in a naturalistic interpretation of the term) is merely the exercise of a natural power in a way that is compatible with the requirements of society. Except in the unlikely event that a large multitude of people consents to transfer all their real estate to a single organisation,¹⁵ nothing like a territorial state could lawfully emerge from society. It is far more unlikely still that people do so without stipulating as a condition for the transfer that they should be given some control over the organisation in the form, say, of voting rights or direct access to its decision-making organs, and a clear and unambiguous option of exiting from the organisation. It is equally unlikely, that they consent to give it an unlimited power to tax and to spend, to regulate contracts to which it is not a party, or to exact services from them. What we may expect is that over time a great variety of service organisations emerge, reflecting the infinite possibilities of contractual arrangements: teams, clubs, charities, leagues, and so on. In fact, this is what did and does happen day in and day out. While some of these organisations (companies or particular exclusive societies) may manage an enormous amount of capital, they are still under the law. They are not states.

The idea of the state having a lawful origin is doubtful if not silly.¹⁶ Yet that was the idea John Locke proposed to the world in his still widely read Second Treatise of Government. We may assume that Locke’s foremost ambition was to rescue the concept of the state from the clutches of royalism¹⁷by a requirement of formal representation and institutional checks on the executive power. However, Locke’s strategy of justifying the state, while at the same time denying any validity to its then current form (royal absolutism), relied on a framework developed by Hobbes, the great modern theorist of royal absolutism. Hobbes had built his theory on the notion that natural rights are actions that are compatible with the natural human condition—but he had then argued that the natural condition of mankind is one of universal war. Locke avoided a direct confrontation with Hobbes, but attempted to get round him by means of revisiting the state of nature. Finding it in peaceful condition—in other words, the Lockean state of nature is simply society itself—Locke could then redefine the natural rights of men as rights people have when in society. In this way, he could suppose that the state arises within the bosom of society and subject to its law, in response to a perceived problem of inefficient law enforcement, rather than as an all or nothing alternative to the destructions of war. Consequently, the Lockean state was not tainted with the violence and fear from which the Hobbesian state had sprung. However, it was a state, complete with a sovereign legislative power over its territory and everyone in it. Locke never explained the great mystery why rational men, living in society, but facing a problem of inefficiency, should freely agree to submit to a monolithic, territorially delimited, permanent organisation of rule like the modern state. Modern political liberalism tried to find a solution in minimizing the role of the state, by assuming that people in natural society only needed an organisation to deal with the problems of elucidating, administering and enforcing justice in accordance with natural law. Admittedly, this interpretation has a strong basis in the texts of Locke; but it does not solve the mystery. Why should the solution to the problems of uncertain justice be the state, an organisation that by its very design and constitution cannot be held to lawful conduct?

The mystery disappears if we drop the Lockean pretence and return to Hobbes: the state was designed not to assist society, but to survive a breakdown of society or state of war.¹⁸ When there is a breakdown of law-based order, the prospects for survival and for a speedy return to normalcy may depend on the form lawlessness takes in the mean time. In this way, and perhaps only in this way, liberalism can be reconciled with the state—by confining the role of the state to large scale emergencies and disasters. This solution recalls the Roman theory of dictatorship: in times of war people have to give up the attempt to live according to law and to enforce the rules of justice; instead a dictatorship is installed, in the form of the temporary emergency rule of a supreme commander or warlord. Unfortunately, in the modern world law became hostage to the state, when the state claimed rulership in times of peace as well as war.

Next: The Philosophy of Statism

Posted November 8, 2007

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