It is clear, in this Bicentennial year, that we no longer enjoy the fruits of the great libertarian movement, which attained its finest hour in the American Revolution. The Revolution's goal was freedom. Today we are governed. This is our essential political condition. Proudhon rehearses the features of that condition.
To be GOVERNED is to be watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, controlled, checked, estimated, valued, censured, commanded, by creatures who have neither the right nor the wisdom nor the virtue to do so. To be GOVERNED is to be at every operation, at every transaction noted, registered, counted, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, prevented, forbidden, reformed, corrected, punished. It is, under pretext of public utility, and in the name of the general interest, to be placed under contribution, drilled, fleeced, exploited, monopolized, extorted from, squeezed, hoaxed, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, vilified, harrassed, hunted down, abused, clubbed, disarmed, bound, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and to crown it all, mocked, ridiculed, derided, outraged, dishonored. [Quoted in Nozick, Anarchy, State and Utopia New York: Basic, 1974), p. 11.]
Are we free of any of these?
The history of the last 200 years in this country is largely a tale of the transformation of a society of free people into a governed mass. There are ideological reasons for this transformation, for this loss of our Revolutionary heritage—among them a neglect of natural rights theory and a failure to distinguish between society and the State. This neglect and this failure are not, of course, the full story. But if we are to again find freedom, and perhaps a fuller and more secure freedom, we must attend to natural rights, to the distinction between society and the State, and to the relation between the two.
People have written often and eloquently of the antagonism between society and the State. Spencer, Oppenheimer, Nock, and Rothbard have all emphasized that the State's "political" mode of operation is incompatible with the "economic" or "industrial" or "social" means of free cooperation. Mises and Hayek have emphasized that it is impossible for the inherently ignorant "political" means to generate, or even sustain, the rich, complex social and economic order that freedom and free association produces. Furthermore, in recent years there has been a powerful renewal of interest in natural rights theory among libertarian and other political theorists.
Here my primary focus is on the radical distinction between society, a complex network of free relationships among individuals and freely formed groups, and the State, a coercive entity that directs people's actions, associations, and lives. But rather than develop this distinction in economic or sociological terms, I do so in terms of natural rights and related political/philosophical concepts. It is crucial to draw such a fundamental line between society and the State in order to dispel the harmful idea (often unstated) that it is to the State that we must look and it is the State that we must thank for our social existence. Just the opposite is true.
A preface to my main points is necessary to avoid the possibility of confusion. I will be focusing at times on the importance of rejecting any belief in a preordained Just Order of Things in accord with which the State is supposed to mold society. That rejection should not be confused however with a lack of concern for justice in other senses. In this essay itself, for instance, I emphasize (though not in these words) the demand of justice that people be left free. But I do not here consider justice in the sense of people getting what they personally deserve. Nor do I consider the many other values, such as autonomy and self-respect, with which libertarian theory must be concerned at some point. The expression and development of these concerns is a task for another day.
The notion of natural rights, in the form crucial to libertarian political philosophy, was put on the philosophical map by John Locke. With hindsight we can see that in numerous ways Locke's views were nonlibertarian and confused. But the terminology he created remains the best and most natural for stating the libertarian position and for indicating the fundamental anti-State logic of this position—a logic that Locke, unfortunately, did not fully appreciate.
According to Locke, individuals share a common nature and are therefore morally equal. This means that no person is morally subordinate to any other. Each is a morally independent being. No person may treat another as if he were made for the first party's purposes. Each person is an end-in-himself and not a means at the disposal of others. In his own words, "Sharing all in one Community of Nature, there cannot be supposed any subordination among us, that may Authorize us to destroy one another, as if we were made for one another's uses…" (Second Treatise on Government, par. 4). To murder someone, to bind him, to take his labor, is, Locke perceived, to treat him as if he were merely an unclaimed resource at one's disposal. But persons are ends-in-themselves. No one is morally subordinate to anyone else in a way that would justify such disposal. For this reason, any act in which an individual is deprived of his life or his liberty or his property (the property being acquired by a type of infusion of labor) is unjustified. Everyone has a right against such aggressive actions.
Since the only obligation people have in their natural moral state is the obligation to refrain from aggression, everyone is morally free to do anything whatsoever that is not aggressive. Everyone, then, possesses a right to life, to liberty, and to the property into which he has nonaggressively infused his labor. Individuals possess these rights by nature—that is, in virtue of their respective natures as morally equal and independent beings who are not made for one another's purposes. In short, by nature all men are morally in "a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they see fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man" (Locke, par. 4). Moreover, everyone possesses "the power to execute the law of nature," by which Locke means that people also possess the right to defend what is theirs by right and the right to take countermeasures against violators of rights.
The importance here of such "Lockean rights" is threefold: (1) It is by means of such a notion crucial to a precise characterization of natural society, that we can accurately make the distinction between society and the State. (2) Society will turn out to be just what is produced when Lockean rights are exercised on an ongoing basis. The State can have no role in, and indeed is necessarily antithetical to, the existence and growth of society. (3) Lockean rights alone provide the moral philosophical barrier against the State's encroachment upon society.
Initially, I spoke of society as a complex of voluntary relationships and institutions. This description will do as a rough characterization. But ultimately we must turn to the notion of Lockean rights to explain what is meant by "voluntary."
Consider whether an employee acts voluntarily when he unhappily accepts employment at less compensation than he had hoped for. Although he acts unhappily or unwillingly, if he accepts the job his act is nonetheless in some sense voluntary. It is voluntary in the sense that no right of his was violated in procuring his employment.
Consider next the aggressor who is required to cease aggressing and to make restitution. He is not a voluntary subject of defense or retaliation. If society were strictly and literally a complex of only voluntary relationships, then it could not include defensive and retaliative acts.
Following Locke, then, socially legitimate acts are not to be specified as just those that involve voluntary relationships, but rather as just those that violate no one's Lockean rights. Acts of inducing people to accept employment and acts of defense and restitution are legitimately social just because they do not violate such rights. The conception of society whereby it is initially characterized as a network of voluntary acts, relations, institutions, etc., must be made more precise: it is a network of acts, relations, and institutions that do not involve the violation of Lockean rights.
Since society is merely this network of nonviolating acts and associations, no State decrees, no State planning, no State good wishes, and no State metaphysical hocus-pocus is necessary for society's existence. Society is the exercising, and the modes and means of exercising, individual rights. In exercising these rights people acquire and define property, enter into contracts, and forge associations of all sorts.
Individuals may even create institutions designed to help them to protect and exercise their Lockean rights. But such institutions are, at most, tools. They are not needed to work any essential transformation of the network of legitimate actions and relationships. These institutions merely secure freedom and peace by securing the natural rights of the individual.
It is historically unfortunate that Locke himself envisioned the universal compact that he thought creates the State as also creating civil society (par. 87). For this blurs the distinction between the State and society. On this particular issue Hegel was far clearer than Locke, both verbally and philosophically. Hegel recognized the fundamental divide between (1) the complex of those voluntary relations and institutions through which people exercise their individual rights and whatever further institutions they freely create to protect these rights and voluntary relations and (2) that institution that presents itself as non-optional and nonbeneficial to the individual and his private well-being and as demanding systematic obedience and sacrifice.
Hegel, rightly, considered everything involved in (1) to be part of civil society, while (2) is the State.
If the state is confused with civil society, and if its specific end is laid down as the security and protection of property and personal freedom, then the interest of individuals as such becomes the ultimate end of their association, and it follows that membership of the state is something optional. But the state's relation to the individual is quite different from this. [The Philosophy of Right, par. 258.]
It is false to maintain that the foundation of the state is something at the option of all its members.…The great advance of the state in modern times is that nowadays all citizens have one and the same end, an absolute and permanent end; it is no longer open to individuals…to make private stipulations in connection with it.…[par. 75.]
A State must transcend the voluntary and beneficial institutions of civil society. If an institution is freely created and merely protects individual rights, then, according to Hegel, it lacks the Divinity attributed to the State.
Hegel, of course, favored the State just because it encroaches upon the individual, his freedom, and his property. We should nevertheless applaud his perception that if an institution is merely voluntary and merely protective of rights, then it cannot be a State—it is merely an arm of civil society.
Many critics of the State—for instance, Nock—say that either one has natural (Lockean) rights or the State's declarations determine what rights one has. But there are more alternatives. There are other proffered justifications of the State besides the view that the State itself determines rights. It is important to see what these alleged justifications are, to see how they require offenses against society as we have understood it, and to see how the theory of natural rights provides the grounds for opposing this offensive. Merely to hold that it rules out the State as the determinant of rights is to give too little credit to natural rights theory.
Rather than holding that the State is, by its very nature, the authoritative source of rights, most pro-State philosophers have advocated the State as the tool for implementing some purported Just or Right Order of Things. (The most recent and sophisticated argument for this is made by John Rawls in A Theory of Justice. An already classic response is provided by Nozick, chapter 7.)
The view of such pro-State theorists is that there is some Just or Right Order of Things, that this order must be implemented deliberately, and that the State is the institution charged with that task. The Just or Right Order may be envisioned as that in which there is the greatest happiness for the greatest number, or that in which there is equality, or that in which goods are distributed according to height, or that in which left-handed people are twice as well off as right-handed people.
All these conceptions have a common feature. Each presumes that there is some pattern or distribution of the good things of life among the members of a given society that as such is Just or Right. Each presumes that to understand justice is to understand what pattern of goods, liberties, or prestige should exist among individuals. Each presumes a patterned conception of justice. Almost all pro-State philosophers have based their advocacy of the State, not on the claim that whatever the State does is right, but rather on some patterned conception of justice.
Why does belief in any patterned conception of justice involve advocacy of the State? Because the realization of any patterned conception, the creation and maintenance of any favored allocation, always will require State intervention. It will be necessary whenever the ideal is a pattern because the result of the free exercise of Lockean rights, that is, the result of societal processes, is nonpatterned. There is no preidentifiable, prespecifiable, pattern of goods or prestige or happiness when the distribution of these things is merely the product of each individual freely exercising his Lockean rights. Hence when the ideal is a specified allocation, it can only be attained by interfering with the free exercise of Lockean rights.
As Nozick puts it, liberty upsets any pattern. Thus, the institution of any favored, allegedly Just or Right, pattern requires the curtailment of liberty and hence of society. When some allegedly Just or Right Order of Things is the ideal, (at least) the partial destruction of society is the necessary means. When the State appears as the standard-bearer of any Just or Right Order of Things, it necessarily appears as the enemy of society.
Of course, the defender of the State thinks that if society is (merely) the complex of voluntary actions, relations, etc., then it should be sacrificed on the altar of the Just or Right Order of Things. The theorist who holds that there is some ordained pattern demanded by justice recognizes no rights but the right to the ordained pattern. His is a pattern-dependent conception of rights. For instance, if equality is deemed the Just Order of Things, he will say that everyone possesses a right to equality—and only this right. Nothing that might be done to an individual in effectively creating a pattern of equality would violate any right he possesses.
This pattern-dependent conception of rights, therefore, legitimates whatever is done to persons by the State in efficiently creating the worshipped pattern. We see, then, that a belief in a given, ordained Just Order of Things requires an offensive against natural society and also carries with it a view of rights (the pattern-dependent view) that legitimates that very offensive against society.
We might simply oppose the State's coercive campaign for the Just or Right Order of Things by claiming that such a campaign would violate individuals' natural rights and by pointing out that the State could not have the right to violate them. A more profound objection is available, however—one directed at the very conception of rights that is involved in the Just Order defense of the State. As we have seen, this defense of the State presumes that some ordained pattern of Things is primary and that whatever rights individuals have flow from their (potential) place in the sanctified Order. In contrast, on the Lockean conception, rights flow from individuals and not from any sanctified patterns. Individuals possess rights in virtue of being human persons who are moral ends-in-themselves. Rights inhere in the individual and are independent of, not a function of, any alleged Just or Right Order.
On the view that rights flow from individuals, there is no room for the conception of a preordained Just Order of Things upon which people's rights depend. The dependency relation is reversed. Individuals have rights, and the exercise of their rights creates various social distributions, patterns, orders, and structures. And whatever distributions, dispersals, structures, etc. are created in the exercise of these rights are legitimate. (To say they are legitimate is to say that no one has the right to forcibly alter them. It is not to say that whatever results from the exercise of rights is good or noble. Legitimacy is, here, a political, not a moral, concept.)
The totality of orders, structures, etc., resulting from the exercise of individual rights is nothing but society. Natural society is sanctified by the view that whatever results from the exercise of rights is legitimate. And, of course, to legitimate natural society is to condemn the State.
Imagine a small group of people who, finding themselves on the proverbial desert island, are about to form systems of relationships and association. Imagine that they fix on some Order of Things as ordained by Justice. If they do, they must immediately establish a State charged with intervening in the natural, that is, voluntary, development of society. For such intervention will be necessary to create and maintain any predesignated Order. Of course, they would be wise, instead, to refuse to endorse any Order as the Just. They would then simply allow and protect the exercise of society-generating Lockean rights.
Now consider the subsequent relationships between two members, A and B, of this State-less group. A and B are free to decide how they are to relate to one another. Perhaps the rational, optimal, thing for A and B to do would be to continue to exercise their natural individual rights to liberty and property, to enter into limited trade agreements only—in short, to establish or maintain between them a mini-laissez-faire, capitalist, sub-society. On the other hand, they might agree (rationally or irrationally) to a complete communalization of their talents, productivity, goods. Or they might agree to a system in which A would be B's servant for a week, then B would be A's servant for a week, and so on.
A and B may be so psychologically constituted that they would be better off with some arrangement between them other than mini-capitalism. But the point here is that any one of these social sub-orders would be legitimate if it came about, as we are supposing it might, through the legitimate processes of A and B exercising their respective rights, including their rights to enter into various agreements.
The moral of this example is that in rejecting the notion of a preordained Just or Right Order of Things, we are accepting a type of pluralism about what orders can exist legitimately. Any arrangement, be it over a whole society or among certain members of that society, will be legitimate as long as the process that produces it is legitimate. And, essentially, a process is legitimate if it is voluntary.
The corollary, then, of the libertarian defense of the individual and society against the pattern-producing State is, to resurrect a fine old term, "voluntaryism." Capitalism, when it is voluntary, when persons are not forbidden to form noncapitalist relationships among themselves, is legitimate simply because it is voluntary. It is the system of voluntary relations that exists among persons who (at least for the most part) retain and exercise, rather than voluntarily forgo, their natural Lockean rights. But voluntaryism would also give its stamp of legitimacy to any other system or sub-system (recall the case of A and B) voluntarily chosen by those it encompasses. The rejection of pro-State political philosophies requires nothing less than this full-fledged voluntaryism.
Emphasis on this clears the air of any suggestion that libertarianism is an apology for any particular group of persons or for any particular lifestyle. This emphasis makes explicit the common ground of all non-coercionists, whatever their particular tastes in forms of association. And this emphasis makes explicit the fundamental differences between libertarianism and all traditional (coercionist) political movements. It points to the distinguishing aspects of our Revolutionary orientation: the recognition of and respect for each individual's rights and the sense that society is the product of the freely coordinated exercise of these rights.
Finally, the emphasis on voluntaryism reinforces our insight that society as such has no preordained goal; there is no order or pattern with which it must comply. Society is merely the product and the tool of individuals' free pursuit of their own goals and purposes. To ascribe a goal to society as such, a goal that overrules the individual's free pursuit of his own goals and purposes, is not to elevate society. Rather it is to pave the way for the State and for the destruction of natural society.
Eric Mack teaches philosophy at Newcomb College, Tulane University. His papers have appeared in Ethics, Southwestern Journal of Philosophy, the Personalist, Reason Papers, and the Canadian Journal of Philosophy. He is a veteran contributor to REASON.