The State Anthony de Jasay

Preface Author's Note Introduction

1. The Capitalist State
2. Violence, Obedience, Preference
3. Title and Contract
4. The Contours of the Minimal State
5. If States Did Not Exist, Should They Be Invented
6. Inventing the State: The Social Contract
7. Inventing the State: The Instrument of Class Rule
8. Closing the Loop by False Consciousness
9. The Adversary State
10. Repression, Legitimacy and Consent
11. Taking Sides
12. Tinker's Licence
13. The Revealed Preference of Governments
14. Interpersonal Justice
15. Unintended Effects of Producing Interpersonal Utility andJustice
16. Democratic Values
17. Liberalism and Democracy
18. Through Equality to Utility
19. How Justice Overrides Contracts
20. Egalitarianism as Prudence
21. Love of Symmetry
22. Envy
23. Redistribution
24. Fixed Constitutions
25. Buying Consent
26. Addictive Redistribution
27. Rising Prices
28. Churning

1. Towards a Theory of the State
2. State Capitalism
3. What Is to Be Done
4. The State as Class
5. On the PlantationFootnotes (Chapters 1-3) Footnotes, continued (Chapters 4-5)
    

Author: Jasay, Anthony de Title: The State Edition: 1998 Imprint: Indianapolis: Liberty Fund, Inc. First printed: 1985.

Anthony de Jasay

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Preface

Though this book leans on political philosophy, economics, and history, it leans on each lightly enough to remain accessible to the educated general reader, for whom it is mainly intended. Its central theme-how state and society interact to disappoint and render each other miserable-may concern a rather wide public among both governors and governed. Most of the arguments are straightforward enough not to require for their exposition the rigour and the technical apparatus that only academic audiences can be expected to endure, let alone to enjoy.

1. If nothing else, the vastness of the subject and my somewhat unusual approach to it will ensure that specialist readers find many parts of the reasoning in need of elaboration, refinement, or refutation. This is all to the good, for even if I wanted to, I could not hide that my object has been neither to provide a definitive statement nor to solicit the widest possible agreement.
    
2. The reader and I both owe a debt to I. M. D. Little for scrutinizing the major part of the original draft. It is not his fault if I persevered in some of my errors.
    

Paluel Seine Maritime France 1997

P.3

Author's Note

The State is about the intrinsic nature of political power, constant in the face of changing contingencies, dictating the way forms of government evolve, rather than being dictated by them.

AN.1 The logic of using political power is the same as the logic of making choices in any other field of endeavour. Rational beings have objectives they seek to attain, and they deploy their available means in the way they think will maximize the attainment of these objectives. The state has a special kind of means: power over the conduct of its subjects that when exercised in particular ways is widely accepted as legitimate. Whatever may be its objectives-whether morally commendable or not, whether good for its subjects or not-the state can attain more of them fully if it has more power rather than less. In the rational-choice paradigm that underlies the more disciplined half of the social sciences, the consumer maximizes "satisfaction," the business undertaking maximizes "profit," and the state maximizes "power."

AN.2 Imputing to the state a rational mind and objectives it tries to maximize has attracted a measure of surprise, criticism, and even incomprehension since the first edition of The State. The approach was difficult to reconcile with the more conventional notions of the prince's holding power in trust, of modern government as the agent of a winning coalition within society, or of a pack of professional politicians serving particular interests in exchange for money, fun, and fame. It left no role for the social contract and no room for the common good. Above all, it treated the state, a web of institutions, as if it were a person with a mind.

AN.3 Arguing as if this were the case, however, produces a "simulation," a sort of schematic history whose power to explain and predict complex trends by tracing the work of simple and permanent causes may perhaps justify the break with conventional theory.

AN.4 The book predicts that by relentlessly expanding the collective at the expense of the private sphere the state-as-drudge always strives to become the state-as-totalitarian-master. The years since the book first appeared have witnessed one resounding failure of this attempt, the collapse of the socialist regimes in Russia and its satellites. It is hard to say what, if anything, this collapse disproves. Must the attempt always fail in the end? I see no persuasive reason why, in one form or another, it always should. Nor does it need to go all the way for corruption and the atrophy of social virtues to set in. May we hope, though, that forewarned is forearmed?

May 1997

AN.5

Introduction What would you do if you were the state?

1. It is odd that political theory, at least since Machiavelli, has practically ceased asking this question. It has devoted much thought to what the individual subject, a class or the entire society can get out of the state, to the legitimacy of its commands and the rights the subject retains in the face of them. It has dealt with the obedience the hopeful users of the state's services owe it, the manner in which they participate in making it function and the redress the victims of its eventual malfunction can claim. These are vitally important matters; with the passage of time and the growth of the state relative to civil society, they are becoming steadily more important. Is it, however, sufficient to treat them only from the point of view of the subject, what he needs, wants, can and ought to do? Would not our understanding become more complete if we could also see them as they might look from the state's point of view?
    
2. The present book is an attempt to do this. Braving the risks of confusing institutions with persons and the difficulties of passing from the prince to his government, it chooses to treat the state as if it were a real entity, as if it had a will and were capable of reasoned decisions about means to its ends. Hence it tries to explain the state's conduct towards us in terms of what it could be expected to do, in successive historical situations, if it rationally pursued ends that it can plausibly be supposed to have.
3. The young Marx saw the state "opposing" and "overcoming" civil society. He spoke of the "general secular contradiction between the political state and civil society" and contended that "when the political state... comes violently into being out of civil society... [it] can and must proceed to the abolition of religion, to the destruction of religion; but only in the same way as it proceeds to the abolition of private property (by imposing a maximum, by confiscation, by progressive taxation) and the abolition of life (by the guillotine)."*1 In other isolated passages (notably in "The Holy Family" and the "Eighteenth Brumaire") he continued to represent the state as an autonomous entity, going its own way without, however, offering a theory of why this should result in "overcoming," "confiscation," "contradiction," why the autonomous state is an adversary of society.
    
4. As Marx moved toward system-building, he fell in with the main body of political theory whose unifying feature is to regard the state as essentially an instrument. Thus, for the mature Marx, and more explicitly still for Engels, Lenin and the socialist thought they continue to inspire, the state became a tool, subservient to the interests of the ruling class and assuring its dominance.
    
5. For non-socialist mainstream theory, too, the state is an instrument, designed to serve its user. It is seen as generally benign and helping to further the purposes of others. The shape of the instrument, the jobs it performs and the identity of the beneficiary may vary, but the instrumental character of the state is common to the major strains of modern political thought. For Hobbes, it keeps the peace, for Locke it upholds the natural right to liberty and property, for Rousseau it realizes the general will, for Bentham and Mill it is the vehicle of improving social

arrangements. For today's liberals, it overcomes the incapacity of private interests spontaneously to cooperate. It forces them to produce collectively preferred volumes of the public goods of order, defence, clean air, paved streets and universal education. Under a stretched definition of public goods, its coercion also enables society to reach for distributive justice or just plain equality.

1. There are, to be sure, less starry-eyed variants of the instrumental view. For the "non-market choice" or "public choice" school, the interaction of private choices through the instrument of the state is liable to overproduce public goods and fail in other ways to attain preferred outcomes.*2 This school deals with the unwieldiness of the tool that is the state and its potential to hurt a society that tries to wield it. Nevertheless, the state is a tool, albeit a defective one.
    
2. What, however, are defect, faulty design, inherent malfunction? And what is internal consistency? On the way from democracy to despotism, does Plato's Republic degenerate? Or is it conforming to its own purposes?
    
3. A first step to an adequate understanding of the state is to think about an environment without one. Taking our cue from Rousseau, we tend gratuitously to associate the state of nature with savage and perhaps not very bright hunters at the dawn of history. It has become our conditioned reflex to think of it as some

early, primitive stage of civilization, a more advanced stage both requiring, and being required for, the formation of a state. As a matter of empirical fact, this is as it may be. As a matter of logic, it does not follow from the sole necessary feature of the state of nature, which is that in it the participants do not surrender their sovereignty. No one has obtained a monopoly of the use of force; all keep their arms. But this condition need not be inconsistent with any given stage of civilization, backward or advanced.

Nation states are in a state of nature and show no inclination to pool sovereignty in a superstate. Yet contrary to what Hobbes is usually taken to have implied, most of them manage to avoid war a good deal of the time. They even cooperate in armed peace, most conspicuously and bravely in international trade, investment and lending, all in the face of sovereign risk. Social contract theory would predict that in these areas, there will be international thieving, default, confiscation and beggar-my-neighbour behaviour, and contracts will be worthless bits of paper. In effect, despite the lack of a superstate to enforce contracts across national jurisdictions, international cooperation is not breaking down. If anything, there is some movement the other way. International relations tend to cast doubt on the standard view of people in the state of nature as myopic simpletons clad in animal skins clubbing each other on the head. Instead, there is some reason to hold that the more civilization advances, the more viable becomes the state of nature. The fearfulness of advanced armaments may yet prove to be a more potent enforcer of abstinence from war, saving people from a "nasty, brutish and short life," than were such historic super-states as Rome, the Carolingian or the British Empire, though it may be too soon to tell.

I.10

Among men and groups of men, it is harder to judge the viability of the state of nature than among nations. Civilized men have long been the subjects of states, so we have no opportunity to observe how well they would cooperate in the state of nature. Hence we cannot even pretend empirically to assess the difference it makes to have a state. Would people honour contracts in the absence of an enforcing agent possessing the monopoly of last-resort force? It used to be held that since it is every man's interest that all other men should keep their word and that he should be free to break his, social cooperation could not be maintained on a voluntary basis. In the technical language of decision theory, a properly constructed "prisoners' dilemma" could not have a non-imposed cooperative solution. Recent contributions of mathematics and psychology to the social sciences teach us that if men confront such dilemmas repeatedly, this need not be so. Results teach them, and expected results induce them, to cooperate spontaneously. Any argument that, since the state must force them to cooperate, they would not have done so without being forced is, of course, a non sequitur.

I.11 On the other hand, the longer they have been forced to cooperate, the less likely they are to have preserved (if they ever had it) the faculty to cooperate spontaneously. "Those who can, do," but the converse, "those who do, can," is no less true, for we learn by doing. People who have been made to rely on the state never learn the art of self-reliance nor acquire the habits of civic action. One of Tocqueville's most celebrated insights (though he had more subtle ones) was in fact about English and American "government" which left both room and need for grass-roots initiatives and, by benign neglect, induced people to run their own affairs, and French "administration" which did neither. The habit-forming effects of the state, the dependence of people's values and tastes on the very political arrangements which they are supposed to bring about, is a basic motif which keeps surfacing throughout my argument.

1. Its other basic and recurrent element is the waywardness of cause and effect in social relations. State action may or may not achieve its intended effect, for its proximate incidence gives no sure clue to the ultimate one. Nearly always, however, it will also have other effects, possibly more important and longer-lasting ones. These unintended effects may, in addition, also be positively unwanted, unforeseen and, in the nature of the case, often unpredictable. This is what lends such a gooseflesh-raising quality to the bland view that politics is pluralistic vector-geometry, and that civil society governs itself and controls the state, which is just a machine to register and execute "social choices."
    
2. The argument of this book is arranged in five chapters, spanning the logical (though not the real-time) progression of the state from one limiting extreme, where its ends do not compete with the ends of its subjects, to the other where it has come to own most of their property and liberty.
    
3. Chapter 1, "The Capitalist State," first deals with the roles of violence, obedience and preference at the birth of the state. It then sets out to deduce the characteristic outline of a state which, if it existed, would not be in conflict with civil society. I call it "capitalist" to stress the decisive character of its treatment of

property and contract. Its conception of good title to property is that finders are keepers. It does not interfere in people's contracts for their own good (which also excludes its compelling them to conclude a comprehensive, omnilateral social contract designed to overcome their free-rider temptations). It does not indulge such compassion and sympathy as it may harbour for its less fortunate subjects by forcing the more fortunate to assist them. By the same token, it is also a policy-less, minimal state ("The Contours of the Minimal State").

1. It seems anomalous if not self-contradictory for the state both to have a will and to want to minimize itself. For this to be rational, its ends must lie beyond politics, and be unattainable through governing. The purpose of governing, then, is merely to keep out any non-minimal rivals (preventing revolution). There has of course never been such a state in history, though the style and overtones of one or two in the eighteenth and nineteenth centuries do faintly suggest it.
    
2. The "political hedonist" who regards the state as the source of a favourable balance in the calculus of help and hindrance, must logically aspire to a more than minimal state and would invent it if it did not exist.*3 Political hedonism on the part of the individual subject underlies the wish for a more comprehensive and less optional scheme of cooperation than the patchwork of contracts that arises from voluntary negotiation ("Inventing the State: The Social Contract"). On the part of a hypothetical ruling class, political hedonism is supposed to call for a machine assuring dominance ("Inventing the State: The Instrument of Class Rule"). Both versions of political hedonism presuppose a certain gullibility as to the risks of disarming oneself to arm the state. They involve a belief in the instrumental character of the state,

made to serve the ends of others and having none of its own. Yet in any non-unanimous society with a plurality of interests, the state, no matter how accommodating, cannot possibly pursue ends other than its own. Its manner of resolving conflicts, and the respective weights it attaches to the ends of others, constitute the satisfaction of its own ends ("Closing the Loop by False Consciousness").

1. The questions whether political hedonism is sensible, prudent, rational, whether having the state around us makes us better or worse off, whether the goods the state, acting in pursuit of its interest, chooses to produce are what we should have chosen, are addressed again in chapter 2 in relation to reform, improvement and utility, and in chapter 3 in such contexts as one-man-one-vote, egalitarianism (both as a means and as an end) and distributive justice.
    
2. While violence and preference may stand respectively at its historical and logical origins, political obedience continues to be elicited by the state through recourse to the old triad of repression, legitimacy and consent, the subject of the first section of chapter

2. Legitimacy is obeyed regardless of hope of reward and fear ofpunishment. The state cannot, except in the very long run, breed more of it at its choice. In getting itself obeyed, its alternatives are reduced to various combinations of repression and consent (though of course it will count the blessings of such legitimacy as it may enjoy). The consent of a minute fraction of society, e.g. the camp guards in a camp state, may suffice to repress the rest. Rewards, such as they are, then accrue thickly to the consenting minority; repression is spread thinly over the vast majority. A reversal of this pattern corresponds to greater reliance on consent.

1. For reasons which look valid at the time, though in retrospect they may be regretted as weak or foolish, the repressive state usually finds it opportune over time to seduce some of those it used to repress and to lean more on consent ("Taking Sides"). This process combines steps towards wider political democracy and moves to do good, with an adversary, divisive role for the state, for it is now soliciting the support of broad sections of society by offering them significant rewards to be taken from other, perhaps narrower but still substantial sections. A by-product of this process of creating gainers and losers is that the apparatus of the state grows bigger and cleverer.
    
2. It seems to me almost incontrovertible that the prescriptive content of any dominant ideology coincides with the interest of the state rather than, as in Marxist theory, with that of the ruling class. In other words, the dominant ideology is one that, broadly speaking, tells the state what it wants to hear, but more importantly what it wants its subjects to overhear. Rather than the "superstructure" of ideology being perched on the "base" of interest (as it is usual to place them), the two hold each other upright. There may well be no ruling class in a society, yet state and dominant ideology will thrive and evolve together. This view is advanced to justify the attention devoted to utilitarianism ("Tinker's Licence" and "The Revealed Preference of Governments"), an immensely powerful though now mostly subconscious influence on past and present political thought. The utilitarian operations of "mending," judging changes in

arrangements by their expected consequences, and comparing utilities interpersonally so that the state can, in evaluating a policy, deduct the harm it does to some from the greater good it does to others and strike a balance of greater happiness, lend a moral content to acts of government. The doctrine which recommends such operations represents the perfect ideology for the activist state. It provides the moral ground for policies adopted by the state when it has discretion in choosing whom to favour. However, when the question whom to favour is no longer discretionary, but is prejudged for the state by the rise of electoral competition, interpersonal comparisons are still implicit in its affirmations that what it is doing is good or just or both, rather than merely expedient for staying in power.

1. Social justice as the avowed objective, the ethical excuse for seductive policies, is seemingly a break with utilitarianism. A basic continuity between the two as criteria for justifying policies, however, results from the dependence of both on interpersonal comparisons. One compares utilities, the other deserts. Either comparison can provide a warrant for overriding voluntary contracts. In both, the role of the "sympathetic observer," of the "discerning eye" performing the informed and authoritative comparison, falls naturally to the state. Stepping into this role is as great a conquest for it as is the derivative chance to favour, among its subjects, one class, race, age-group, region, occupation or other interest over another. However, the discretion to choose whom to favour at whose expense, which the state enjoys when it first sets out to assemble a base of support by reform and redistribution, is almost bound to be short-lived. The argument of chapter 4 offers reasons why it tends to vanish with political competition and with society's progressive addiction to a given redistributive pattern.
2. A fully fledged redistributive state, at whose behest "the propertyless come to legislate for the propertied,"*4 and which in time transforms the character and structure of society in largely unintended ways, has its doctrinal counterpart, its ideological match. The development of neither can be very well conceived without the other. Chapter 3, "Democratic Values," deals with the liberal ideology which is dominant when the state, depending increasingly on consent and exposed to competition for it, overwhelms people while serving their ideals.
    
3. In agreeing to and, indeed, aiding and abetting the advent of democracy as the vehicle for moving from rule by repression to rule by consent, the state commits itself to certain procedures (e.g. one-man-one-vote, majority rule) for the award of the tenure of power. The procedures are such that the state, in search of support, must proceed by a simple headcount. Its policies must, putting it crudely, simply create more gainers than losers instead of, for example, favouring the most deserving, those it likes best, those with more clout, or some more subtle objective. "More gainers than losers" can always be more lucratively achieved by condemning to the role of losers a number of rich people than the same number of poor people. This rule is, however, merely expedient. It may not command the approval of bystanders who do not expect to gain from its application. Some of them (including many consequential utilitarians) might prefer the rule "create more gains rather than more gainers" and forget about the headcount. Others might want to add "subject to respect for natural rights" or, possibly, "provided liberty is not infringed,"

either proviso being sufficiently constricting to bring most democratic policies to a dead stop.

1. Consequently, it helps a good deal if the liberal ideology establishes a case or, to be on the safe side, a number of parallel cases, for holding that democratic policies do create democratic values, i.e. that political expediency is a reliable enough guide to the good life and to universally prized ultimate ends.
    
2. I look at four such cases. One, whose great advocates were Edgeworth (impeccably) and Pigou (more questionably), seeks to establish a strong presumption that equalizing income maximizes utility. My counter-argument ("Through Equality to Utility") is that if it makes sense at all to add different persons' utilities and maximize the sum, it is more reasonable to hold that it is any settled, time-honoured income distribution, whether equal or unequal, that will in fact maximize utility. (If there is a case for equalizing, it is probably confined to the new rich and the new poor.)
    
3. A more fashionable, if less influential, case constructed by John Rawls recommends a modified, tempered egalitarianism as corresponding to the principles of justice. I take issue on several grounds with the principles he derives from the prudential interest of people negotiating about distribution in ignorance of their selves and hence of any differences between them. I dispute the purported dependence of social cooperation, not on the terms which willing participants settle bilaterally among themselves in making actual cooperation unfold, but on the readjustment of these terms to conform to principles negotiated separately, in an "original position" of ignorance set up for the purpose. I also

question the deduction of principles of justice from democracy rather than the other way round ("How Justice Overrides Contracts"). In the section "Egalitarianism as Prudence" I challenge the alleged prudential character of a certain egalitarianism and the roles assigned to risk and probability in inducing self-interested people to opt for it. In passing, I reject Rawls's bland view of the redistributive process as painless and costless, and of the state as an automatic machine which dispenses "social decisions" when we feed our wishes into it.

1. Instead of contending, in my view unsuccessfully, that certain economic and political equalities produce final, uncontested values like utility or justice, liberal ideology sometimes resorts to a bold short cut and simply elevates equality itself to the rank of a final value, prized for its own sake because it is inherent in man to like it.
    
2. My main counter-argument ("Love of Symmetry"), for which there is perhaps unexpected support in Marx's "Critique of the Gotha Programme" and in a priceless outburst by Engels, is that when we think we are opting for equality, we are in fact upsetting one equality in making another prevail. Love of equality in general may or may not be inherent in human nature. Love of a particular equality in preference to another (given that both cannot prevail), however, is like any other taste and cannot serve as a universal moral argument.
    
3. Somewhat analogous reasons can be used against the case that democratic policies are good because, in levelling fortunes, they reduce the pain people suffer at the sight of their neighbour's better fortune ("Envy"). Very few of the countless inequalities

people are liable to resent lend themselves to levelling, even when the attack on difference is as forthright as Mao's Cultural Revolution. It is no use making everyone eat, dress and work alike if one is still luckier in love than the other. The source of envy is the envious character, not some manageable handful out of a countless multitude of inequalities. Envy will not go away once chateaux have all been burned, merit has replaced privilege and all children have been sent to the same schools.

1. Incentives and resistances, the exigencies of staying in power in the face of competition for consent and the character of the society whose consent must be elicited, should duly lead the state to adopt the appropriate pattern of policies for taking property and liberty from some and giving them to others. However, would not this pattern, whatever it was, be bound to remain hypothetical, and property and liberty inviolate, if the constitution forbade the state to touch them, or at least laid down fixed limits to what it may touch? It is to come to terms with the constitutional constraint on democratic policies that chapter 4, "Redistribution," starts with some remarks on fixed constitutions. It is suggested that the ostensible constraint of a constitution may be positively useful to the state as a confidence-building measure, but that it is unlikely to remain fixed if it does not coincide with the prevailing balance of interests in society. The prospective pay-off from amending it is available as an inducement for a coalition of the required size for passing the amendment (though this is not a sufficient condition for triggering off constitutional change).
2. The mechanics of obtaining majority support under democratic rules are first considered in a highly simplified abstract case in the section "Buying Consent." If people differ from each other only in how much money they have, and if they vote for the redistributive programme under which they gain most (or lose least), the rival programmes offered by the state and the opposition will be closely similar (one being marginally less bad for the rich than the other). Under the spur of competition for power, everything that can safely be taken from the prospective losers has to be offered to the prospective gainers, leaving no "discretionary income" for the state to dispose of. As a consequence, its power over its subjects' resources is all used up in its own reproduction, in merely staying in power.
    
3. A less abstract version ("Addictive Redistribution") where people, and hence their interests, differ in an indefinite variety of respects, and the society within which preponderant support must be obtained is not atomistic but can have intermediate group structures between man and state, yields results which are fuzzier but hardly less bleak for the state. Redistributive gains tend to be habit-forming both at the individual and the group level. Their reduction is apt to provoke withdrawal symptoms. While in the state of nature the integration of people into cohesive interest groups is held in check by (potential or actual) "free riding," the emergence of the state as the source of redistributive gains both permits and incites unchecked group formation to exact such gains. This is so in as much as state-oriented interest groups can tolerate the free riding among their members that would destroy market-oriented groups.
    

Each interest group, in turn, has an incentive to act as a free rider in relation to the rest of society, the state being the vehicle permitting this to be done without meeting serious resistance. There is no reason to expect the corporatist ideal of constituting very large groups (all labour, all employers, all doctors, all shopkeepers) and having them bargain with the state and with each other, greatly to alter this outcome. Thus, in time, the redistributive pattern becomes a crazy quilt of loopholes and asymmetrical favours along industrial, occupational or regional dimensions or for no very apparent rhyme and reason, rather than along the classic rich-to-poor or rich-to-middle dimension. Above all, the evolution of the pattern increasingly escapes the state's overall control.

1. In the section "Rising Prices" the group structure of society promoted by addictive redistribution is assumed to impart an ability to each group to resist or recover any loss of its distributive share. One symptom of the resulting impasse is endemic inflation. A related one is the complaint of the state about society becoming ungovernable, lacking any "give" and rejecting any sacrifice that adjustment to hard times or just random shocks would require.
    
2. The social and political environment resulting in large part from the state's own actions eventually calls forth a widening divergence between gross and net redistribution ("Churning"). Instead of robbing Peter to pay Paul, both Peter and Paul come to be paid and robbed on a growing variety of counts (much gross redistribution for a small and uncertain net balance); this causes turbulence and is destined to generate disappointment and frustration.
    

The state has, at this stage, completed its metamorphosis from mid-nineteenth-century reformist seducer to late twentieth-century redistributive drudge, walking the treadmill, a prisoner of the unintended cumulative effects of its own seeking after consent ("Towards a Theory of the State"). If its ends are such that they can be attained by devoting its subjects' resources to its own purposes, its rational course is to maximize its discretionary power over these resources. In the ungrateful role of drudge, however, it uses all its power to stay in power, and has no discretionary power left over. It is rational for it to do this just as it is rational for the labourer to work for subsistence wages, or for the perfectly competitive firm to operate at breakeven. A higher kind of rationality, however, would lead it to seek to emancipate itself from the constraints of consent and electoral competition, somewhat like Marx's proletariat escaping from exploitation by revolution, or Schumpeter's entrepreneurs escaping from competition by innovation. My thesis is not that democratic states "must" all end up doing this, but rather that a built-in totalitarian bias should be taken as a symptom of their rationality.

I.37 Autonomy of action in the passage from democracy to totalitarianism need not be regained in a single unbroken move, planned in advance. It is, at least initially, more like sleep-walking than conscious progress towards a clearly perceived goal. Chapter 5, "State Capitalism," deals with the cumulative policies likely to carry the state step by step along the road to "self-fulfilment." Their effect is so to change the social system as to maximize the potential for discretionary power, and to enable the state fully to realize this potential.

1. The agenda for increasing discretionary power ("What Is to Be Done?") must first address the problem of decreasing civil society's autonomy and capacity for withholding consent. The policies the democratic state managing a "mixed economy" tends to drift into will unwittingly erode a large part of the basis of this autonomy, the independence of people's livelihoods. What the Communist Manifesto calls "the winning of the battle of democracy" in order "to wrest, by degrees, all capital from the bourgeoisie, to centralize all instruments of production in the hands of the state" is the completion of this process. The socialist state thus puts an end to the historical and logical freak of economic power being diffused throughout civil society while political power is centralized. In centralizing and unifying the two powers, however, it creates a social system which is inconsistent with, and cannot properly function under, the classical democratic rules of awarding tenure of state power. Social democracy must evolve into people's democracy or the next best thing, the state now being powerful enough to enforce this development and ward off systemic breakdown.
    
2. "Systemic constants" versus the variables of the human element are considered in the context of private and state capitalism ("The State as Class") to assess the place of the managing bureaucracy. As the thesis that separation of ownership and control really means loss of control by the owner is untenable, it must be accepted that the bureaucracy has precarious tenure and its discretionary power is limited. The nice or nasty disposition of the bureaucrats manning the state, their "socio-economic origin" and whose father went to which school, are variables, the

configurations of power and dependence characterizing private and state capitalism respectively are constants; in such phrases as "socialism with a human face," the weight of the constants of socialism relative to the variables of the human face is best seen as a matter of personal hopes and fears.

1. In state capitalism more inexorably than in looser social systems, one thing leads to another and, as one inconsistency is eliminated, others emerge, calling in turn for their elimination. The final and futuristic section of this book ("On the Plantation") deals with the logic of a state which owns all capital, needing to own its workers, too. Markets for jobs and goods, consumer sovereignty, money, employee-citizens voting with their feet are alien elements defeating some of the purposes of state capitalism. To the extent that they are dealt with, the social system comes to incorporate some features of the paternalistic Old South.
    
2. People have to become chattel slaves in relevant respects. They do not own but owe their labour. There is "no unemployment." Public goods are relatively plentiful, and "merit goods" like wholesome food or Bach records, cheap, while wages are little more than pocket money by the standards of the outside world. People have their ration of housing and public transport, health care, education, culture and security in kind, rather than receiving vouchers (let alone money) and the corresponding onus of choosing. Their tastes and temperaments adjust accordingly (though not all will become addicts; some may turn allergic). The state will have maximized its discretionary power, before eventually discovering that it is facing some new predicament.
3. An agenda for a rational state gives rise, by implication, to an inverted agenda for rational subjects, at least in the sense of telling them what must be done to help or to hinder it. If they can purge any inconsistent preferences they may have for more liberty and more security, more state and less state at the same time-probably a more difficult undertaking than it sounds-they will know how far they want to assist or resist carrying out the state's agenda. On such knowledge must depend their own stand.
    
4.  

Author: Jasay, Anthony de Title: The State Anthony de Jasay Advanced Search

1. The Capitalist StateViolence, Obedience, Preference

Preferences for political arrangements depend on people's conception of their good as well as on the arrangements that are supposed to be preferred.

1. States generally start with somebody's defeat.
    
2. "The origin of the state is conquest" and "the origin of the state is the social contract" are not two rival explanations. One deals with the origin of the state in real time, the other with logical deduction. Both can be simultaneously valid. Historical investigation may establish that, to the extent that we can learn about such things, most states trace their pedigree to the defeat of one people by another; more rarely to the ascendancy of a victorious chief and his war gang over his own people; and nearly always to migration. At the same time, widely acceptable axioms will also help "establish" (in a different sense of the word) that rational people, in pursuit of their good, find it advantageous to subject themselves to a monarch, a state. Since these two types of explanation of the state deal in unrelated categories, it is no use trying to relate them or accord priority to one over the other. Nor is it sensible to infer that because states have come into being and flourished, it must have been rational for people who pursued their good to subject themselves to them-otherwise they would have put up more of a fight before doing so.
    
3. Consider in this light a well-regarded attempt at reconciling the (historically) violent origin of the state with the rational volition

of the subject which underlies the analytical type of ontologies such as the social contract.*5 In this essay, any person living in the state of nature forms an estimate of all future incomes he is likely to get in the state of nature and another estimate for all future incomes he would receive in civil society endowed with a state. The second estimate is taken to be larger than the first. The two estimates are discounted to present value. It takes time to get everybody else round to concluding the social contract that provides the passage from the state of nature to civil society. The high incomes resulting from the creation of the state are, therefore, some way off in the future and the present value of their excess over state-of-nature incomes is small. It may leave insufficient incentive for undertaking the task of getting everybody round to agree to the social contract. On the other hand, a state can be quickly created by violent means. The higher incomes engendered by the existence of the state thus begin to accrue quickly. They do not shrink so much when translated to present value. The comparison of the present value of incomes under a state formed slowly by peaceful negotiation of a social contract, with that of incomes under a state entering society by the short-cut of violence, must favour violence. If so, the income-maximizing rational person can presumably be expected either to welcome the violence done to him by whoever is bringing in the state, or himself resort to violence to organize it. The reader may either take it (though this cannot have been the author's intention) that this is the reason why most states were not created by peaceful negotiation but by violence or that, whatever was the historical cause in any particular case, this theory of rational motivation is at least not inconsistent with it.

1.1.3 Like the contractarian theories before it, this sort of theory invites the careless conclusion that because states have come into being by violence, and flourished, and because it can make sense for people serenely to submit to violence leading to the creation of the state which they desire but cannot manage to achieve, people did welcome state-creating violence after the event. The underlying assumption is that the state, regardless of its peaceful or violent origin, helps people in the pursuit of their good.

1. Astonishingly, this assumption is hardly ever cast in a more general form, for instance by allowing for algebraic sign. If it were, it should read "the state helps/hinders," with the actual balance of the expression depending on the empirical content of the terms "help" and "hindrance." More informatively, the assumption could be cast in a form like "the state helps/hinders some people, hinders/helps others and leaves the rest unaffected." The affected are helped and hindered in different ways and to different extents. Unless by a fluke the hindered set is empty (i.e. everybody is either helped or left alone), the algebraic sum is a matter of comparisons between the helped and the hindered. Running up against interpersonal comparisons so early is a sign that our reflections are at least headed in the right direction, towards the central questions of political theory.
    
2. If ever there were people in the state of nature, and as a matter of repeated historical fact it took violence to impose a state upon them, it seems pertinent to ask, Why does standard political theory regard it as a basic verity that they preferred the state? The question really breaks down into two, one "ex ante" and the other "ex post": (i) Do people in the state of nature prefer it to the state? and (ii) Do people, once in the state, prefer the state of nature to it? These questions very sensibly allow for people's preferences to be related, in some way, to the political environment in which they actually happen to live.*6 However, once they are framed in this way, they are seen to have a peculiar character. When social

scientists say that they know that Smith prefers tea to coffee because he just said so, or because he has revealed his preference by taking tea when he could have taken coffee, they deal in objects which are presumed to be both familiar and accessible to Smith. When Smith is talking about his preferences for things he can at best know from hearsay, difficulties begin to arise. They are compounded when he could not possibly translate his avowed preference into a practical act of choice, because some alternatives are simply not feasible. People who live in states have as a rule never experienced the state of nature and vice versa, and have no practical possibility of moving from the one to the other. It is often a historical anachronism and an anthropological absurdity to suppose such movement. On what grounds, then, do people form hypotheses about the relative merits of state and state of nature?*7

1.1.6 It appears that among certain South American Indians (though conceivably elsewhere, too) an increase in the size of the demographic unit is recognized as favouring the likelihood of the creation of a state, possibly because of the changed scale and kind of wars that this entails. A war chief supported by his quasi-professional warrior followers can coerce the rest of the people into durable obedience. In a book by Pierre Clastres which should prominently figure in any bibliography of the social contract,*8 it is reported that the Tupi-Guarani people used to abort this process by swarms of them seceding, going off to distant and fearsome lands on prophet-led flights from the greater dread of subjection, of the state which they identify with evil. The American Indian people studied by Clastres typically live in the state of nature, a condition which has little to do with the level of technical civilization and everything to do with political power. Their chiefs can exhort but not command, and must rely on oratory, prestige and liberal hospitality to get their way. Their prestige depends in part on seldom risking interference in a matter where their exhortation is liable to go unheeded. There is no apparatus among them for enforcing obedience and the Indians would not dream of voluntarily contracting to obey, though they may choose to agree with the chief on a case-by-case basis.

1. Theirs are, according to Clastres, true affluent societies, easily capable of producing surpluses but choosing not to do so, a two-hour working day being sufficient amply to provide for what they consider adequate subsistence. Though there is little or no production for exchange, there is private property; there could be no private hospitality, no invitations to feasts without it. There is no obvious obstacle to the division of labour and hence to capitalism, but the goods that the division of labour may provide are not prized. Work is held in contempt. Hunting, fighting, storytelling and party-going are preferred to the sort of goods labour could produce. The question is staring us in the face, Is it because of their preferences that the Indians abhor the command-obedience relation inherent in the state, and choose to stay in the state of nature? Or is it living in the state of nature which predisposes them to like, above all else, the tangibles and intangibles that typically go with it?
    
2. Marx would no doubt frown at the role tastes and preferences are allowed to play in this way of posing the question, and would presumably decide that subsistence agriculture, gathering and hunting were phenomena of existence, of the "base," while the institutions of the state were those of consciousness, of the "superstructure." It was thus the former which must have determined the latter. Clastres, for one, asserts the contrary.*9 Analytically (as distinct from historically), both views are true in the same sense as "the chicken caused the egg" and "the egg caused the chicken" are both true. My contention here is that

preferences for political arrangements of society are to a large extent produced by these very arrangements, so that political institutions are either addictive like some drugs, or allergy-inducing like some others, or both, for they may be one thing for some people and the other for others. If so, theories that people in general (Hobbes, Locke, Rousseau), or the ruling class (Marx, Engels), mount the political arrangements that suit them, need be approached with much mistrust. Conversely, the view (Max Weber's) that historical outcomes are largely unintended, deserves a préjugé favorable as the more promising approximation to many of the relations linking state and subject.

1.1.9

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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1. The Capitalist StateTitle and Contract The state is a capitalist state if it does not demand ownership to be justified, and does not interfere for his own good with a person's contracts.

1. The origin of capitalist ownership is that "finders are keepers."
    
2. This is the acknowledgement that permits the passage from possession to ownership, to good title to property, independently of its particularities, of who the title-holder may be and also of the use he may or may not make of the property. The state which recognized title to property on this ground (though it may do so on other grounds as well) fulfils one of the necessary conditions of being a "capitalist state" in the sense I am using here (a sense which will become very clear as I proceed). The title is not invalidated by scarcity, is contingent neither upon merit nor status, and entails no obligation. The reference to scarcity may need some elucidation. What I mean is that if a man can own an acre, he can own a million acres. If his title is good, it is good regardless of whether, in Locke's famous words, "enough and as good" is left for others. Ownership is not invalidated by the scarcity of the things owned nor by the non-owners' desire for it, so that in a capitalist state access to scarce goods is regulated by price and substitution and not by sovereign authority, however constituted.
    
3. Those brought up on the notions of primitive accumulation, division of labour and appropriation of surplus value as the source of continuing accumulation, might balk at this manner of approaching the origin of capital and the essence of the capitalist state. No doubt very little capital has ever been "found" and a lot has been accumulated. Moreover, to both Marxists and perhaps

most non-Marxists it might look like putting the cart before the horse to proceed from the "relations of production" (which, as Plamenatz has demonstrated, mean relations of ownership "if they are to have any identity at all")*10 to the "means of production," the things owned. Yet it is not, or at least not generally, a change in the means of production or in the techniques applied to them, that transforms them into capitalist property. Land held by any major French or German noble family down to the Thirty Years' War was owned by it in the most tenuous sense only. It was a means of production but assuredly not capitalist property in the manner of English or Italian land. Land owned by the English nobility and gentry from the sixteenth century on, can rightly be regarded as capital and has in fact served as the main springboard of English capitalism. Shipping and other mercantile accumulation of capital got off to a flying start in late Tudor and Stuart times due, in great part, to the stakes put up by landowners. Non-capitalist (I am advisedly avoiding the term "feudal") tenure of land usually originated in service and continued on the strength of a (more or less well founded and realistic) expectation of future service. This was true of the landlord who was supposed to owe service, directly or indirectly, to the sovereign, and of his serfs who owed service to him.*11 It is characteristic of English social evolution that land tenure became so rapidly unconditional, and that such (light, and unwritten) conditions as remained, concerned local justice and charity where the landlord supplanted rather than served the state.

1.2.3 The peasant in the North and Central Russian "repartitional" village held land because of who he was and because he had so many adults in his family. His title, such as it was, could be argued to have depended on status, need for and capacity to use, the land. Every so many years, when the cumulative change in the needs of his and other families in the village demanded it, the caucus of influential peasants who ran the obshchinnoe might take away his strips of land and deal him out other, inferior strips. Nobody, however, could sell out or buy into the village; if they could have done, the land would have become capital. The land the American farmer "found" on the frontier, or "proved up" under the 1862 Homestead Act, or got from somebody else who did, was capital. The premises, tools and stock of materials of a master of a craft guild, were not capital. The physically very similar premises, tools and materials of his successor, the small entrepreneur-artisan under Gewerbefreiheit were the very essence of capital.*12 Unlike his guild predecessor, he could be anybody and could run his shop the way he saw fit. It is not the scale of the undertakings nor the fact of employing the labour of others which makes the first pre-capitalist and the second capitalist. Both generated "surplus value" and enabled their owner to appropriate it. However (except perhaps in Italy north of the Papal States), the guild master's title to his business was contingent not only upon constraints on output, price and quality, but also upon who he was and how he lived.

1. Ownership which does not have to be born into, lived up to, served and atoned for, but just is, is of course no less an ideological phenomenon for that. Its recognition is a distinctive mark of the ideology defining the capitalist state, just as ownership which is contingent upon its conformity to some principle of social utility, justice, equality or efficiency and which is forfeit or at least forcibly adjusted if it does not so conform, satisfies an ideology which is variously called democratic, liberal, socialist or combinations of these words.
    
2. Unsurprisingly, the relation connecting the finders-are-keepers principle of ownership to the capitalist state runs both ways. Like

other implicit functions which mostly make up the base of the social sciences, it does not feature an independent and a dependent variable, an unmistakeable cause and an effect. The relation really asserts that it takes the capitalist state to accept and uphold such a quintessentially positivist, non-normative principle of ownership, and that it takes such a severe, contingent-upon-nothing kind of ownership to make the state a capitalist state.

1. There is a second necessary condition of capitalism, which is inevitably bound up with the first without being part of the same thing. It is the freedom of contract. When, as in most of medieval Europe, the tenure of property involved onerous obligations and was open to persons of a defined status or other defined characteristics, alienation by free contract could not have been countenanced by the sovereign. Even the marriage contract was subject to state approval and for really prominent families remained so into the eighteenth century. Property came gradually to be governed by contract rather than status, partly because servitudes in kind were commuted into money and partly because, from being the obligations of the owner, they became those of the property-of the marquisat rather than of the marquis-so that the state interest was not harmed by letting it pass into the hands of any upstart tax farmer or venal magistrate. Much the same mutation led from a man's debts, which he had to discharge or go to prison, to the no-recourse mortgage on property and to the liabilities of an undertaking which permitted its changing hands, even before formal limited liability became widespread.
    
2. Freedom of contract, as a necessary condition for the state to be a capitalist one, can be construed as the freedom of the finder not just to keep what he found, but to transfer all his rights in it to another on whatever terms he chooses, and by extension the

freedom of the latter to transfer it to yet another. The capitalist state must let freedom of contract prevail over both ideas of status and propriety, and ideas of just contracts (fair wage, just price).

1. If all the world's goods were divided up into random bundles belonging to nobody, and if everybody were blindfolded and could pick one bundle, and when the blindfolds were taken off all could see their own and anyone else's bundle, we would have a properly translucent setting for the interaction of free contracts, status and just contracts. If some of the bundles contained beaver hats, and some people liked beaver hats more than other things while for other people it was the other way round, after some scurrying about they could all end up holding what they liked best, subject of course to the constraints of feasibility fixed by the initial bundles. If (as used to be the case before the late seventeenth-century flooding of the European market with Canadian pelts), people below a certain status were then forbidden to wear beaver hats, their price in terms of other things would decline and even so a number of swaps of hats for other things would be prevented from taking place, for some people of the requisite high status but not so keen on beaver, would halfheartedly hang on to the hats they found in their bundles. If, in addition, there was an authority entitled to outlaw unjust contracts and it felt that the just price of beaver was what it has always been, the number of mutually agreeable exchanges would be further restricted, only people of the requisite status and very keen on beaver being prepared to pay the just price. A number of hats would go begging, their holders being unable either to wear or to swap them.
    
2. Analogous, though less outlandish, problems arise when we imagine bundles made up of all sorts of talents, skills, knowledge

and muscle-power, and various job opportunities, outlets for this talent, needs for that skill or muscle. As we can expect from a random distribution, there would be a hopeless mismatch within each bundle between talents and opportunities, skills and the occasions for using them. Status rules and the banning of unjust bargains, e.g. the setting of minimum wages or of a "rate for the job," would prevent at least a part of the possible matching between bundles from taking place. In this context, the capitalist state is naturally one that will not enforce status-related and justice-related rules and constraints on the freedom of contract,*13 passively allowing the ideas which gave rise to them to be eroded by the tide (when such a tide is running) of the capitalist ideology and the exigencies of capitalist business practice. The state which will actually outlaw and suppress such rules, however, may learn to like outlawing and suppressing in a general way, and may not remain a capitalist state for very long.

1.2.10 Pareto has laid down the precise sense in which the voluntary reshuffling by their owners of the contents of random bundles, results in the "best" distribution of the world's goods. If two consenting adults close a contract, and there is no independent evidence of duress (i.e. evidence other than the contract looking unfavourable to one party), we accept a prima facie case that they like the terms of this contract better than not entering into a contract with each other. (The precise condition, in fact, is that one of them prefers and the other either prefers, or is indifferent to, contracting.) There is also an (albeit weaker) case for holding that there is no other contract which these two people, given their respective situations, could have concluded instead such that it would be preferred by one of them to the contract they did conclude, while leaving the other party at worst indifferent. If, then, it cannot be shown that their contract violates the rights of a third party (it may violate his interests), no one-neither the third party, nor anyone purporting to defend his interests-has the right to hinder them in executing their contract as agreed. Overriding the contract, or forcibly amending its terms ex post, let alone insisting that, as amended, it is still binding on the parties, are the ways of "hindering" typically reserved for the state (cf. pp. 112-3).

1. The condition "it cannot be shown that their contract violates the rights of a third party" is, however, obviously neither straightforward nor easy, though it is putting the onus of proof where it belongs. Sometimes the onus is allowed to shift the other way, the contracting parties having to prove that they are not violating third-party rights. This is not an unfair characterization, for instance, of the practice of some American regulatory agencies. Norms for judging the rights of someone in relation to a contract to which he is not a party cannot be laid down independently of culture and ideology and may, even so, remain contentious. For instance, to stay safely in a realm of capitalist culture and ideology, does it violate the rights of the lowest bidder if he is not awarded the contract, assuming that the tender specified no explicit rule about accepting the lowest bid? Must the best qualified candidate for a job get it? Can land use be changed if it spoils the view for the neighbours? Different capitalist answers appear to be possible. Different capitalist jurisprudence might interpret the "third party" condition in a more or less austere manner, and careful thought may be needed before one can say that a particular state is not respecting the freedom of contract and is, on this ground, an adversary of capitalism.
    
2. What, on the other hand, is an unambiguous denial of the freedom of contract is the interdiction or forcible amendment of a contract (in order, for example, to tilt its terms in favour of one of the parties) on grounds not involving the rights of third parties.

Admission of such grounds appears to presuppose that a person, in entering into a contract, is capable of violating his own rights and it is incumbent upon the state, whose proper function is the defence of recognized rights, to prevent him from doing so. This is the key to a whole boxful of cases where it can be claimed that a person needs to be protected against himself. One oft-cited case (which involves other problems, too) is the puzzle about a man's freedom (in the sense of right) to sell himself into slavery.*14 A fundamentally different case for denying the freedom of contract arises out of the claim that, in agreeing to a certain set of terms, a person would be mistaking his own preference or interest. The ground for stopping him is no longer one of his right, and a fortiori not one of a conflict between two of his rights, but of his utility as seen from the outside by the sympathetic observer. On this ground, prohibition stops a man from buying whisky because his real (or "rational," "true," "long-term" or "unconfused" as it is sometimes called to distinguish it from plain) preference is for sobriety. The weakness-of-will argument may have to be invoked to justify the distinction between plain revealed preference for whisky and unconfused long-term preference for a sober life. However, much the same distinction must be agreed to support other applications of the principle of paternalism: the payment of wages in kind, the provision by the state of welfare services (e.g. health) in kind, compulsory insurance, education, etc., each of these in contra-distinction to giving the recipient cash in lieu, to be spent as he saw fit.

1.2.13 Another's conception of a person's good or utility, another's diagnosis of his real preference or long-term interest, is adequate ground for interfering with his freedom to enter into contracts a consenting adult partner is prepared to agree to if, and only if, it is accepted that it is a proper function of the state to use its monopoly power of coercion to enforce A's conception of B's good. Now A may be anybody, or the sympathetic observer, or the majority of voters, or the foremost socio-psycho-economic research institute, or the state itself. Different kinds of states could be distinguished according to which of these potential sources they would profess to follow. The test of the capitalist state is that it follows neither source, for it gives priority to the freedom of contract, including under it the extremely important freedom not to contract at all. Anticipating chapter 2, I might say broadly that other states profess to follow one or more of the possible sources. The choice of "sources," whose conception of the good is to be listened to, is inevitably determined by the state's own conception of the good; it will choose to be guided by congenial spirits, kindred intellects. Selection of the adviser, no less than selection of what advice to accept, is tantamount to doing what one wanted to do all along. In choosing to promote B's good, the state is in effect pursuing its own ends. This, to be sure, is a quasi-tautology; it calls for more attention to the nature of the state's ends.

1.2.14

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

Advanced Search 1. The Capitalist StateThe Contours of the Minimal State

Indifference to the satisfactions of governing gives rise to self-imposed limits on the scope of the state.

1. It is strange but not patently irrational for the state to minimize itself.
    
2. A theory, or at least an approximative definition, of the capitalist state, which requires it to respect the freedom of two parties to enter into contracts that do not violate the rights of a third, looks incomplete, as is-by customary standards-the state in question. For what are the third-party rights which the state ought to protect and what are mere pretensions which it ought to ignore? There is a virtually limitless list of potential claims which third parties could make against the terms of a given contract. Laws must be made and administered both to define the category of claims that shall be treated as justified and to reduce the area of doubt (and hence of arbitrariness) between those that shall and those that shall not be so treated. Once there is a state, it is incumbent upon it to deal with these tasks.
    
3. There is some presumption that in the state of nature a spontaneous cooperative arrangement would arise and fulfil this function, for the same general reasons which let us suppose that other functions habitually regarded as proper to the state would also be looked after, though there is neither a certitude that they

would be nor a definition of the particular shape they would take. Once a state is formed, however, at least some of these non-coercive arrangements are liable to become unworkable and may, indeed, be impossible to bring about in the first place. In the state of nature, anyone disliking the way a voluntary arrangement is working, has only two choices: to accept the way it works, or to bargain for its amendment, a breakdown in bargaining carrying the danger of the whole arrangement breaking down and its benefits being lost.*15 The risk of such an outcome provides some incentive for everyone to keep things going by reciprocal accommodation.

1. In the presence of a state, however, the dissident member of a voluntary arrangement has an added reason to be intransigent (and the other members an added reason to call his bluff), i.e. the faculty of recourse to the state. If he cannot get his way, he can still appeal to the state to uphold the justice of his case, and so can the other cooperators. Whoever wins, the voluntary arrangement is transformed into a coerced one. Turned upside down, this is the same logic as the one in Kant's argument about the subject's right to disagree with the sovereign. If there were such a right (which Kant denies), there would have to be an arbiter to whom the disagreement could be referred. The sovereign would then cease to be the sovereign, and the arbiter would take his place. Conversely, if there is a sovereign he will get disagreements referred to him, for there is less reason to yield in private compromise if an instance of appeal exists. What the state must do, to make its life and that of its less litigious subjects tolerable, is to lay down as clearly as possible the laws predicting how it would rule if cases of a given description were appealed to it (thus warding off many appeals), as well as a general description of the cases in which it would not hear an appeal at all.*16
2. Admitting, then, that if the state exists at all, it will somehow or other assume the task of sorting out disputes arising out of third-party claims, what are the guidelines the capitalist state would adopt for doing so while still remaining capitalist, an upholder of the freedom of contract? There is no question of drawing up a design, a sort of code capitaliste for the laws of such a state, the less so as it is reasonable to believe that more than one such code, containing significant variations on the same themes, could each be consistent with the basic capitalist conditions relating to unconditional property and free contract. Perhaps the most economical way of grasping the spirit common to all such possible codes, is to consider that if there is a state (which is not the same as claiming that there could really be one) which is prepared to agree to these basic conditions, it must be one which finds its satisfactions elsewhere than in governing.
    
3. Such a statement may look obscure and require a little elaboration. When we reflect about choice, we incline at least tacitly to suppose that "behind" the choice there is a purpose, an end. It used even to be said, for instance, that consumers seek satisfaction and producers seek profit, and their choices can be thought of as rational (or not) in terms of a corresponding maximization assumption. But what end or ends does the state pursue, the maximization of what can qualify its conduct as rational? Various answers of varying degrees of sincerity and seriousness could be proposed: the sum of the satisfactions of its citizens, the well-being of a particular class, the gross national product, the might and glory of the nation, the state budget, taxes, order and symmetry, the security of its own tenure of power, etc. (I address the question more seriously on pp. 267-70.) The likely maximands all seem on closer scrutiny to require that the state possess some specialized capacity, equipment to attain them. In

addition, greater rather than lesser capacity looks desirable for guiding the course of events, dominating the environment, and actively working upon the maximand (increasing the pay-off, e.g. enlarging the dominion rather than merely the power over a given dominion). Even if there are maximands which do not require a vast capacity to act for their attainment-unworldly objectives like, say, the peaceful observation of rare butterflies-would it not be pointless for the state pursuing them, voluntarily to bind its hands and renounce in advance the use of a fully-fledged apparatus for exercising power, of the richest possible set of "policy tools"? Might they not come in handy one day?

1. My definition of the capitalist state, however, requires it to opt for a sort of unilateral disarmament, for a self-denying ordinance concerning the property of its subjects and their freedom to negotiate contracts with each other. A state whose objectives needed, for their realization, a strong capacity to govern, would not willingly adopt such a self-denying ordinance. This is the sense in which we say that the ends of the capitalist state, whatever they are (we need not even seek to find their particular content) lie outside government.
    
2. What, then, is the point for the state in being a state? If it finds its satisfaction in what we could term "metagovernmental" maximands, rare butterflies or plain peace and quiet, why not resign and stop governing? The only plausible answer that suggests itself is to keep them out, to stop them from getting hold of the levers of the state and spoiling it, the butterflies, the peace and all. The very special rationale of being a minimal state is to leave few levers for the zealots to get hold of and upset things with if, by the perversity of fate or of the electorate, they manage to become the state.
3. Inheriting a strong, centralized state apparatus is part of the secret of the successes both of the Jacobin terror and of Bonaparte. In what are, perhaps, the climactic passages of L'ancien régime et la révolution (Book III, ch. VIII), Tocqueville blames the prerevolutionary French state for having set over everyone the government as "preceptor, guardian and, if need be, oppressor," and for having created "prodigious facilities," a set of egalitarian institutions lending themselves to despotic use, which the new absolutism found, all ready and serviceable, among the debris of the old.
    
4. Marx, too, is perfectly clear about the value to the revolution of the "enormous bureaucratic and military organization, with its ingenious state machinery" put in place by the regime it had overthrown. "This appalling parasitic body, which enmeshes the body of French society like a net and chokes all its pores, sprang up in the days of the absolute monarchy.... The seignorial privileges of the landowners and towns became transformed into so many attributes of the state power.... The first French Revolution... was bound to develop what the absolute monarchy had begun: centralization, but at the same time the extent, the attributes and the agents of governmental power. Napoleon perfected this state machinery."*17 Thus, it is not the state that mistrusts itself and would rather not have levers or powerful tools lest it should misuse them. It knows that it could not possibly be tempted to misuse power. It is its rivals for state power who would, by the nature of their ambition, misuse it. (The minimal state may even be aware that if it was succeeded by a rival with contestable ends in mind, the latter would need but a little time to put in place the rudiments of an apparatus of non-minimal government. However, even gaining a little time, and hence hope,

would be better than handing it a ready-made system of pulleys and levers.) Seeking, as it does, aims which positive government is incapable of promoting, and fearing its capacity for wrongdoing in profane hands, the capitalist state is rational in adopting the contours of the minimal state.

1.3.10 Recalling the regimes of Walpole, Metternich, Melbourne or Louis Philippe (only more so), with a blend of indifference, benign neglect and a liking for amenities and comforts, the capitalist state must have sufficient hauteur not to want to be bothered by petty disputes among its subjects. The more quietly they get on with their business, the better, and it may occasionally, and a little reluctantly, use a heavy hand to make them do so. Its distance from the mundane concerns of its subjects does not, on the other hand, imply the sort of heroic hauteur which a Nietzsche or a Treitschke wished to find in the state, which reaches out for some high purpose, risking in avoidable war the life and property of the subject; nor the hauteur of utilitarian ethics, which sees the subject and his property as legitimate means to a greater common good. In a seeming paradox, the capitalist state is aristocratic because remote, yet with enough bourgeois overtones to recall the governments of the July Monarchy of 1830-48 in France. At any event, it is a state which is very unlikely to be a republic. As a digression, it is worth remembering, though it may not prove much, that Alexander Hamilton was a convinced royalist. His is a good example of how little the essence of capitalism is understood by the public. If people were asked who was the most capitalist American statesman, some may be tempted to say "Grant" and think of railroad land grants, "Garfield" and think of the Gilded Age, perhaps "McKinley" and think of Mark Hanna and tariffs, "Harding" and the Teapot Dome scandal and the Ohio Gang. Such answers miss the point. These Presidents caused or condoned corruption and scandal by favouring some interests over others, which means using state power for their ends. If any American statesman was good for capitalism, which is not evident, it was Alexander Hamilton.

1. Such a state, then, will make few and simple laws and not enforce many of the laws it may have inherited. It will make it clear that it dislikes adjudicating claims against established situations resulting from people's freely negotiated contracts, will do so gingerly if it must but only as a last resort.
    
2. It will be reluctant to promote the good of society, let alone to order the more fortunate of its subjects to share their good fortune with the less fortunate, not because it lacks compassion, but because it does not consider that having creditable and honourable feelings entitles the state to coerce its subjects into indulging them. We must leave it at that, and not try to find out (nor could we if we tried) whether it is "belief in laissez faire" or some other, more subtle conviction about the proper role of the state which is holding it back, or simply indifference to the satisfactions that may be found beyond the limits of the minimal state.
    
3.  

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

Advanced Search 1. The Capitalist StateIf States Did Not Exist, Should They Be Invented?

People come to believe that because they have states, they need them.

1. Neither individual nor class interest can justify a state on prudential grounds.
    
2. We have derived some of the characteristic features of a state which would be "best" (alternatively, "least harmful") for capitalism, proceeding from the ideal conditions of capitalist ownership and exchange to how the state fulfilling these conditions might behave, and what reason it could possibly have for doing so. The image which is beginning to emerge is that of an unusual creature, bearing a relatively remote likeness to any real state that ever existed. The few real states I have alluded to in order to illustrate a point were chosen more for their style, flavour, and lack of governing zeal, than for being really close incarnations of the ideal being. The reverse procedure could, perhaps, be used to show that a less bizarre, more likely sort of state would really be more harmful to capital and capitalism, even if it was an unprincipled tool of the Two Hundred Families and

sent gendarmes or the National Guard to help grind the face of the poor.

1. The real-life states people are stuck with, more often than not because their distant ancestors were beaten into obedience by an invader, and sometimes due to Hobson's choice, to having to take one king so as to escape the threat of getting another, are not primarily "good for this" or "least harmful for that." They are not shaped to meet the functional needs of a system of beliefs, preferences, life-styles or "mode of production." This affirmation of the autonomy of the state and the separateness of its ends does not exclude all scope, over time, for some mutual adaptation whereby the state comes to conform to people's customs and preferences, just as they learn to accept and, from time to time, to enthuse about some of the state's demands upon them.
    
2. Any real state, given its de facto origin, is primarily an historical accident to which society must adapt. This is unsatisfactory to those who, by both training and inclination, see political obligation as resting either on moral duty or on prudential purpose. Instead of a trivial theory showing obedience to result from the threat of coercion, more interest will be shown in theories which derive the state from the subject's own volition, if only because it is intellectually comforting to find coherent reasons for believing that we actually need what we have.
    
3. There are, in particular, two rival theories with the identical basic thesis that if the state did not exist, we should invent it. Both, I shall argue, rest on self-delusion. One holds that it is people in general who need the state which alone can fulfil the function of turning general conflict into general harmony. People not only

need this, but are aware of their need, and by the social contract create the state and give it authority over themselves. The other theory proposes that it is the possessing class which needs the state as the indispensable instrument of class rule. The source of the state's political power is, in some fashion, the economic power which ownership confers upon the possessing class. The two powers, economic and political, complement each other in oppressing the proletariat. The purest, least ambiguous theorist of the social contract is Hobbes, and Engels is that of the instrument-of-class-oppression theory.

1. Both theories have an irreducible common core: both require people ("the people" in the one case, "the capitalist class" in the other), to abdicate a de facto faculty, the recourse to force. One and the other, each in the manner proper to it, confers a monopoly of the possession (and hence obviously of the use) of force upon Leviathan, the monarch or the class state. One's motive is fear, the other's greed; not moral but prudential reasons.
    
2. Neither provides any good ground for supposing that the state, once it has the monopoly of force will not, at times or forever, use it against those from whom it received it. Neither is a theory of the state in the proper sense, i.e. neither really explains why the state will do one thing rather than another. Why, in fact, should it stop people from killing and robbing each other rather than indulging in some robbery and, if need be, killing, on its own account? Why should it help the capitalists oppress the workers, rather than engage in the probably more rewarding pursuit of oppressing the capitalists? What maximand does the state maximize, what is its pay-off, and how does it go about getting it? The conduct of the state is assumed (it keeps the peace, it oppresses the workers) rather than derived from its rational volition.
3. The state, under either the contractarian or the Marxist hypothesis, has got all the guns. Those who armed it by disarming themselves, are at its mercy. The state's sovereignty means that there is no appeal against its will, no higher instance which could possibly make it do one thing rather than another.*18 Everything really depends on Leviathan giving no cause to people to rebel (Hobbes is assuming that it would not), or on the state oppressing only the right people, i.e. the workers.
    
4. There are certainly good reasons, both a priori and empirical, why such assumptions should, at least some of the time, be wrong. One cannot seriously expect people in general, or the capitalist class, to take such a gamble with an essentially unpredicted state for prudential reasons, though they might do so as an act of faith. The one plausible condition under which self-interest could induce rational people to take this risk is when the likely consequences of not disarming themselves in favour of the state look more dangerous still.
    
5.  

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

Advanced Search 1. The Capitalist StateInventing the State: The Social Contract

Political hedonism requires a benign state or a conformist subject. Failing both, it is a foolhardy attitude.

1. Hobbes, who could be mischievous, saw that every man has reason to fear his fellow man if they are alike.
    
2. All men, needing self-approval, seek eminence over others. If I let my fellow man seek eminence, he will invade my property, therefore I must attack his first. Self-preservation must drive both of us to fight each other, and there will be "savage war for glory." Both our lives will become "nasty, brutish and short."
    
3. While self-preservation is said to be the spring of all Hobbesian conduct, it is clear that I would not have to worry about preserving myself if my neighbour, whether to become eminent or to forestall me, did not invade my property. Is there a way of persuading the neighbour to desist? Perhaps by letting him know that I am not seeking eminence over him and he has nothing to fear? If self-preservation no longer obliged him to keep up his guard, and he lowered it, I could pounce and gain eminence over him; and so could he if I agreed to let him be and lowered my

guard. As he is like me, I have to fear him, and cannot prudently make the first step which would break the vicious circle if he were unlike me.

1. In modern decision theory, such situations are called "prisoners' dilemmas."*19 As set up, they have no spontaneous cooperative solution. Left to themselves, both "prisoners" must, if they are rational, seek to get the better of each other by "confessing" first, and both end up with a longer sentence than if they had both played "thief's honour" and refused to confess. In Hobbes, they both end up with a shorter and nastier life. Their sole escape is to abandon the state of nature and conclude a "covenant of mutual trust" whereby a designated sovereign is invested with whatever power it takes to enforce peace (or natural right). Thus nobody need fear that, by behaving trustingly, he will be taken advantage of by the others; therefore all can behave trustingly. The sovereign will, for some reason, use his absolute power only for obtaining this result. His subjects have no right to rebel but nor do they have any reason for doing so. It is not clear whether, if they did have cause, they would have a right to rebel.
    
2. The prisoners' dilemma implicit in Hobbes requires, for its proper study, the state of nature where no sovereign authority stops the participants from making themselves miserable if they are so inclined.*20 States are in a state of nature in that they retain the faculty of recourse to force against each other and do not transfer their arms and their sovereignty to a super-state.*21
    
3. I will consider, in this context, two Hobbesian dilemmas, those of war and trade. While I am at it, I will go on briefly to look at Rousseau's problem of general social cooperation also, though the

latter is quite different in nature (it is not a "prisoners' dilemma" and requires a special psychological assumption in order not to result in voluntary cooperation).

1. Let there be two sovereign countries (to borrow the language of army manoeuvres, "Blue" and "Red"). Both want "eminence" in Hobbes's sense. The order of their preferences is: (1) victory in war, (2) disarmament, (3) armed peace and (4) defeat in war. They must choose between two "strategies"-arming and disarming-without knowing what the other country chooses. The "pay-off matrix" resulting from this situation will then be as in figure 1.
    
2. Though Blue does not know whether Red will arm or disarm, he will choose to arm because by doing so he avoids defeat, gets peace at a cost as the worst-case pay-off and may get victory if Red is a sucker. Red is like Blue, and reasons similarly. He, too, chooses to arm. They end up in the southeast corner of the figure, in armed peace which is the "maximin" (the best worst-case) solution proper to hostile players. The northwest corner of costless peace is denied them, though they would both prefer it, because of their even greater preference for victory over each other. Once in the northwest corner, Blue would try to go into the southwest and Red into the northeast quadrant, i.e. the "cooperative solution" of costless peace would be unstable in the absence of a super-state enforcing disarmament.
    
3. This is, broadly, the result we actually find in the real world. States are most of the time in the southeast quadrant of the figure,

i.e. they live in costly armed peace. From time to time they slipinto the southwest or northeast quadrant and make war. Whether this is by virtue of unequal arms, a freak cause, or for another of the innumerable historical causes of war, is beyond our present concern. Despite their preference for northwest over southeast, however, they do not surrender sovereignty. We must carefully note this fact and consider it presently.

1.5.9 The dilemma of trade is formally identical to the dilemma of war. Let there be the same two countries, Red and Blue. Each wants the other's goods. Both have the same order of preferences: (1) get foreign goods for free, (2) trade home goods for foreign goods, (3) retain the home goods (no trade), and (4) forgo the home goods and get no foreign goods (total loss, confiscation, expropriation, write-off). The two countries contract to deliver goods to each other (or to lend for later repayment, or invest for a return). As there is no enforcing super-state, they can either perform the contract or default, as in figure 2.

1.5.10 Game theory would once again predict that neither trader will give the other the chance to play him for a sucker, so that "maximin" is the dominant strategy for both and they end up not trading. The structure of their preferences and the structure of the pay-offs jointly deny them the benefit of trading in the absence of a contract-enforcer. This prediction, of course, is belied by the widespread fact of trade, investment and lending across national jurisdictions, which those who engage in them find on the whole worthwhile in the face of a certain frequency of bad debts and defaults of one kind or another. States are in certain circumstances even prepared to give redress to foreign nationals and enforce performance by their own defaulting nationals; an altogether quixotic act by the standard conceptions of basic social contract theory. Equally quixotic is the voluntary submission, by medieval traders and bankers, of cases of default or disputed contract performance to the judgments of their peers appointed for the purpose but possessing no arms and commanding no police, especially when you consider the danger that the decision might have gone against them!

1. If history demonstrates that two ostensibly identical dilemmas regularly give rise to contrasting outcomes, the war dilemma resulting in armed peace (with occasional war) and the trade dilemma resulting in trade, the ostensible identity must hide some significant difference. Intuitively, war is more easily seen as a single isolated act than is trade. A war can even be fought "to end all wars," to have hegemony in peace forever after. Trade is typically an indefinite series of recurrent acts, which the participants fully intend to prolong. Everything that mathematics and psychology finds conducive to cooperative solutions in "iterated" prisoners' dilemmas applies to trade, much less of it to war. Neither dilemma and its real-world resolution, however, lends convincing support to the Hobbesian reason for inventing a state and escaping from the brutish misery of the state of nature, into its encircling arms.
    
2. Is there more force in Rousseau's thesis, that people in the state of nature are unable to organize the social cooperation necessary for the realization of their common good (the general will)? His basic statement of the problem is in the Second Discourse, and is known as the parable of the Hunting Party.*22 If (two) hunters stalk a deer, they are sure to catch it if only each one will stand faithfully

at his post. They can in this way unconsciously acquire the idea of mutual obligation (which, for Rousseau, forms the passage from the state of nature to civil society), but only if their present and palpable interest demands it. However, they lack foresight and "hardly think of the morrow." Therefore, if one sees a hare passing, he will quit the deer stalk and run off to catch it, depriving the other hunter of the deer and, indeed, of bagging anything at all. The pay-off matrix of their interaction will have the form of figure 3.*23

1. As both hunters prefer the deer, or even half of one, to a hare, neither has an incentive to "sucker" the other, leaving him standing while he runs off after the hare. Neither would, therefore, rationally opt for a "maximin" strategy (go for the hare in the southeast corner). The deer hunt, then, is critically different from the genuine, Hobbesian prisoners' dilemma. Social cooperation is not a dilemma and does not for that reason require coercion. A problem (but not a dilemma) is only created for the hunting party by the myopia of one of the hunters who cannot see that a sure deer at the end of the hunt is better than a sure hare. (If both hunters suffered from such complete lack of forethought, they might "objectively" have a prisoners' dilemma without feeling it. Neither would worry about the end-result of the party; they would not perceive the missed deer, let alone invent an arrangement, such as the social contract creating a state, enabling them to catch the deer rather than the hare, which is the only reason they would have for not letting the hunt take its course, with both hunters running off after the game, if any, they happen to see.)
    

Supposing, then, that at least the second hunter is alive to the advantage of getting the first hunter to keep his place, what solutions are available for overcoming the latter's myopia or fecklessness? The contractarian solution is to get him to become a party to the social contract, voluntarily submitting to coercion when needed. But it is difficult to see why he would see the advantage of the social contract if he does not see that of standing fast.*24 He is either shortsighted and sees neither, or he is not and the hunters don't need the social contract.

1. A more promising line of thought is to suppose that the hunters have hunted before and, as by happy chance no hare crossed their paths, they did catch the deer. The second hunter (the far-sighted one) has saved up a quarter. Next time out he dangled it before the myopic eyes of the first hunter, keeping him at his task and letting him have it at the end of the day while he kept the whole new deer they successfully caught together. (He has, of course, not forgotten once more to set aside a quarter, to maintain the "wage fund.") This, in a slightly abridged version, is the story of abstinence, capital accumulation, natural selection, the differential contributions and rewards of entrepreneurial initiative and wage labour, and in fact the organization of social cooperation and the determination of the terms on which the participants are willing to carry it on. (In "How Justice Overrides Contracts" [pp. 160-173], we will meet the claim that willing social cooperation is not a matter of the terms the participants agree, but of the terms being reasonable. If the terms that have proved capable of bringing about social cooperation need not, for that reason alone, be considered reasonable, difficulties arise about the very meaning of social cooperation. What, then, is cooperation on unreasonable terms?)
    

The story, however, does not naturally lend itself to the sort of happy ending which we have learnt to associate with the exit from the state of nature. It does not explain why rational persons, living in a state of nature, should have a preference for the state and seek to invent one (and it is silent on the civic preferences of persons who have been educated in and by the state and have never had occasion to try the state of nature).

1. Persons are in states, have been there for many generations, and would have no practical means of getting out if they wanted to. States are in the state of nature; many of them have known something approaching the security offered by the super-state when they were part of the Roman Empire, or a British colony; and if they wanted to surrender their sovereignty to a super-state, there are at least some practical steps they could take to try and organize one. They do nothing of the sort. They are quite content to listen to their own voice at the United Nations, leaving it the fatuous irrelevance that it is. Is it, then, beyond reasonable doubt that persons would rush and negotiate a social contract if, like states, they had the option not to do so?
    
2. States have known both peace and war throughout history. Some states have died as such because of war, though more states have been born. Most, however, have survived more than one war and continue to muddle through, without finding existence so "nasty and brutish" as to make life within a world state look enticing. Even the very particular prisoners' dilemma in which two nuclear superpowers are exposed to the threat of destruction and to the expense of maintaining a counter-threat, has not so far induced them to seek shelter and assured self-preservation in a Soviet-American contract.
3. On a less apocalyptic level, "beggar-thy-neighbour" policies in international trade seem to be a perfectly good practical illustration of the prisoners' dilemma as applied to states. Generally speaking, all states could be better off if, by cooperative conduct, they allowed the potential gains from trade to be fully realized, just as all prisoners would be better off if none betrayed the other by confessing. The "dominant strategy" of each state (as the "optimum tariff" argument demonstrates), however, is to engage in discriminatory trade practices, high tariffs, competitive devaluations and so forth. This strategy is "dominant" on the argument that if other states behave nicely and adopt free-trader conduct, the first state will reap advantages from its misbehaviour, while if other states misbehave, it would suffer by not also misbehaving. The supposed outcome of every state adopting its dominant strategy is an escalating trade war with everybody rapidly getting poorer and being unable to do anything about it in the absence of a super-state with powers of coercion. In actual fact, many states much of the time behave reasonably well in international trade. They either do not have a dominant strategy or, if they do, it is not to misbehave. Most states most of the time adhere to GATT rules (which stand for the "cooperative solution" in game-theory parlance). Trade wars are generally minor skirmishes, limited to a few products of a few states and instead of escalating as they should, they usually subside. Such "partial free trade" is achieved, just like "partial peace," without benefit of a state above states and the transfer of power to it. Complete free trade, like total peace, may from most points of view be more satisfactory, but the cost of the added satisfaction must appear prohibitive to the participants; states do not willingly submit to domination even if the dominant entity is to be called the Democratic Federation of Independent Peoples.
    

People, in the sense of natural persons, however, are supposed by contractarian theory to submit willingly. Unlike states in international relations, people as persons have no opportunity to contradict this supposition. For centuries, since Hobbes if not before, political theory has been assuming that people did not, in fact, very much mind the potential threat of being coerced, being too frightened of the hurt they might suffer in un-coerced "chaos" (this is the Hobbesian version of the social contract), or too interested in the beneficial results of coercion (which is the broader basis of the social contract, laid by Rousseau).*25 I believe this is how one should read the cryptic and profound observation of Leo Strauss (few others have thought more powerfully and deeply about these matters), that Hobbes "created" political hedonism, which transformed life "on a scale never yet approached by any other teaching."*26 It is a not very important detail that instead of pleasure (as hedonists are supposed to seek), Hobbes spoke of self-preservation as the end which explains action.*27 Since Hobbes, it is tacitly treated as a self-evident truth that people need, or want to have, the state because their hedonistic pain-and-pleasure calculus is ipso facto favourable to it.

1.5.21 Recent research into the prisoners' dilemma, both deductive into its logical structure and experimental into actual behaviour in such situations, has established that acceptance of coercion by the participants is not a necessary condition for their finding a "cooperative solution."*28 Some of the crucial steps toward getting this result are: (a) to admit that the dilemma can be confronted more than once (it can be an iterative or sequential "game"), so that reliance on single-stage rationality may not correctly predict the moves of rational players; (b) to make a player's move depend in part on the other player's move in a previous stage of the sequential game, or in some other game altogether (i.e. to make it depend on experience), either player taking account of the reputation established by the other for toughness or softness; (c) to make him play as he ought to if the other player were playing tit-for-tat; (d) to introduce some regard for the relative value of present and future; and (e) to let the increased pay-off of a cooperatively solved game teach people to go for the cooperative solution in subsequent games. It is intuitively plausible that in a state of nature where people do not instantly club each other to death in a single-stage noncooperative performance of the dilemma game, but where they survive for some time and have both occasion and incentive to assess and heed each other's capacity for retaliation, vengefulness, mutual protection, gratitude, fair play, etc. the prisoners' dilemma becomes both very much more complicated and loses much of its inexorability.

1. Nor need one limit the application of this result to the sole bellum omnium contra omnes. Hobbes makes people choose Leviathan to produce order out of purported chaos. But people need not have chosen Leviathan, since some kind of cooperative solution, some kind of order emerges in the state of nature, too, though it may not be the same kind of order as that produced by the state. Both qualitative and quantitative differences are possible, indeed extremely likely, though it is very hard to form sensible hypotheses about what the voluntary solution would exactly be like. Whether the voluntary product, in turn, is inferior or superior to the state product, will have to remain a matter of taste. The important thing is not to confuse the question of how we like either product, with the far more vital question of how we like the entire society in which order is state-produced, compared to the entire society (the state of nature) in which it is a voluntary arrangement.
2. What goes for order goes, by simple extension of the argument, for other public goods as well, whose production was supposed to have been altogether prevented by a rigidly interpreted prisoners' dilemma and the related, rather looser free-rider problem.*29 Once a public good, say clean air, paved streets or national defence, gets produced, people cannot be excluded from enjoying it regardless of whether they have paid their share of the cost of producing it. (We shall have occasion in chapter 4, pp. 234-6, to question what "their share," in the sense of the part of the cost that a particular person ought to bear, can possibly mean.) Therefore, many will choose not to bear "their share" and the public good will not get produced or maintained, unless the state steps in to coerce all would-be free riders to pay, at the one hit both overcoming "isolation" by making each individual act as he would if all had one common will, and providing "assurance" to each individual who pays that he is not a lone sucker, for all others pay too.*30 If the general dilemma is conceived of as a sequential game, a society's perpetual learning process, it seems obvious that it can have a solution for each intermediate stage, and arbitrary to rule out the likelihood of at least some of the solutions being cooperative, so that as a general proposition, at least some quantities of some public goods will get produced on a voluntary basis.
    
3. "Some quantities" of "some public goods" as a result of non-coercive spontaneous solutions, sounds insufficiently affirmative. The reflex reaction of capitalism's adversary may well be that, because of external economies and diseconomies, only an all-embracing compulsory arrangement, i.e. a state, can ensure that the right amount of public goods gets made. In this view, the prisoners' dilemma would represent one limiting case, that of total failure to "internalize," and the state would be the other limiting

case in which the entire benefit of an external economy gets internalized from the state's aggregative point of view. The in-between case of the voluntary association, the spontaneously formed interest group, would stop short of complete internalization and as a consequence would typically tend to fall between the two stools of the unresolved prisoners' dilemma and state provision of the right amount of the good. Nor is it, of course, always true of any and all levels of output that if the state has in fact chosen that level, it considered it (given all constraints, scarcities and competing claims) the "right" one. If the claim that the output of a public good chosen by the state is the right output, is to be more than a tautological statement of the state's "revealed preference," it must somehow be related to some independently derived standard of the optimum.

1.5.25 In the case of individually consumed goods, this standard is, by and large, the Pareto-optimum reached by equating the marginal rates of substitution and transformation between any two goods. But as it is nonsense to speak of a marginal rate of substitution between a public and a private good (a person cannot decide to give up a dollar's worth of chocolate to get a dollar's worth of clean air, law and order or paved street), this standard does not work. When the post-1981 Polish state imports one more water-cannon and reduces chocolate imports by the corresponding sum, the decision can hardly be related to the marginal Polish chocolate-eater's relative liking for law and order and chocolate. If it expresses anything, the decision must express the state's balancing of the real interests of society that it considers important, in proportion to the importance it attaches to each. The individual chocolate-eater is obviously unable to attach the proper weights to the interest of the vanguard of the working class, of the Organs, of proletarian internationalism, etc. How much tax to surrender to the state so it may buy law and order or clean air for the use of the individual taxpayer in question is not a matter of any taxpayer's choice. The state cannot buy a collective good for him.

1.5.26 A standard which will do for "collective choice" (if we must resort, for the sake of argument, to this question-begging concept) what Pareto-efficiency does for individual ones, can always be contrived by supposing either (a) that society has but one will

(e.g. a will manifested by unanimity, or possibly the general will),or (b) that the several more-or-less divergent wills (including, arguably, the will of the state itself) which are present in society can, by a system of weights attached to each, be expressed as one will (what Robert Paul Wolff disdainfully calls "vector-sum democracy").*31

1. Whoever fixes the relative weights to be attached (i.e. makes the interpersonal comparisons, or reads the general will, or whichever way the reader prefers to phrase it), fixes the "right" output of public goods with respect to the standard he has thus set up for himself. Whatever he decides, he will, therefore, always be in the proud position of having fixed the right output; for there can never be independent proof to the contrary. It is a redundant apology for the state to say "by reading the general will," "by balancing the merits of conflicting claims," "by duly considering public need against the background of its disinflationary policy," etc. it has determined the right output of public goods. For, whatever the output it chose on whichever considerations, it would not have been, according to its own lights, the wrong one, and no one can ever say that somebody else's lights would have led it to a more nearly "correct" determination.
    

It remains to add that the political hedonist who is content to sign the social contract must somehow or other have convinced himself that he is getting a good deal. The incremental pleasure he expects to derive from having the state arrange the production of the correct amount of order and other public goods, instead of relying on a possibly quite inadequate patchwork of spontaneous arrangements, must outweigh the pain of coercion he thinks he will suffer at the state's hands.

1. The obvious case where this must hold true is when he does not expect to suffer at all. He will, as a matter of fact, never be coerced if he wills what the state wills, or vice versa, if he can rely on the state to will only what he wills. He must either be the perfect conformist, or he must believe in a benign state which has the power of coercion but lets itself be controlled by those who have none.
    
2.  

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

Advanced Search 1. The Capitalist StateInventing the State: The Instrument of Class Rule

The state is autonomous and subjects the ruling class to its own conception of its interest; it "serves the bourgeoisie despite the bourgeoisie."

1. "Autonomy" and "instrument," rule and subjection are terms that yield their real meaning only to the dialectic method.
    
2. Attempting to interpret the Marxist theory of the state carries more risk than reward. The young Marx, superbly talented political journalist that he was, said incisive and original things about the state, but he did so more under the impulsion of events than in search of a general doctrine. In his later system-building periods, on the other hand, he was not very interested in the state (Engels was a little more so), presumably deflected from the subject by the very force of his theory of class domination, which may be thought implicitly to provide an understanding of the state. In any case he made little effort to make it explicit. This was consistent with his confining the determinants of social change in the "base" and allowing the state, a phenomenon of the "superstructure," either no autonomy or only an ambiguous one. This implicitness is the reason why, despite the much greater respect later Marxists (notably Gramsci and his intellectual descendants) paid the superstructure, one is reduced to speculation about what Marxist theory "must mean," what view it may hold of the forces acting upon and exerted by the state, in order to preserve logical consistency with the whole of its construction.
3. Such speculation is rendered doubly hazardous by the combination, in much Marxist writing, of the dialectic method with verbose discourse aimed at the ad hoc needs of the day. Owing to the latter, one can nearly always find, in some hallowed text, passages to support almost any stand and its contrary, so that for every "on the one hand" the adept can cite an "on the other" and a "yet we must not overlook that...." The dialectic method, in turn, enables its practitioner to nominate any one out of a pair of contradictory propositions for the role of survivor, of the third member of the triad of thesis-antithesis-synthesis. He can for instance decide, according to the requirements of his argument, that where an object is black but also white, it is in reality white (though black in appearance), or possibly vice versa. It is in this way that the relation of state and subject in Hegel,*32 and that of the state and the capitalist class in Marx, turn out to be perfectly pliable according to the needs of the moment and of the context. (This is also, in a general way, the reason why the average dialectician can virtually always devastate the average non-dialectical argument.)
    
4. Having said this, let us nevertheless venture to put forward the bare outline of an interpretation where we will remain committed, as far as possible, to a non-dialectical (hence easy to refute) meaning. It is quite legitimate to take Marxism to hold that the victory of the working class and the extinction of class antagonism means, by definition, that the state withers away. Lenin, understandably, has a strong interest in adopting the contrary interpretation. He goes to immense trouble to argue that the cessation of class conflict does not entail the withering away of the state. There are no classes but there is a (coercive) state under socialism. Only in the abundance corresponding to full

communism can the state wither away. Its doing so is not a logical implication, but a process in real historical time, about whose required length it would be naive to speculate in advance.

1. Though there will still be an apparatus for the "administration of things," there will be none for the "government of men." Close reflection is needed to grasp, if grasp one can, how it is possible to "administer things" without telling people to do this or that about them; and how telling people differs from "governing people." A tentative answer, for what it is worth, would seem to be that this becomes possible when men will do what is required of them in order for things to get administered, without being made or commanded to do so.
    
2. The classless society, then, can tentatively be defined as a state of affairs where this holds true, i.e. where men spontaneously administer things without being administered themselves. However, if men freely do what they have to do, what is the residual need for the administration of things and what is the residual non-coercive quasi-state which is said to subsist after the state proper has withered away? A necessary condition for the non-withering-away of the coercive state is the existence of more than one class. The interests of "historic," principal classes are necessarily antagonistic. The ruling class needs the state to deter the exploited class from attacking its property and breaking the contracts which provide the legal framework of exploitation. As history proceeds on its preordained course towards the victory of the proletariat and the one-class society, functionally obsolete classes fall by the wayside. The last-but-one surviving class is the bourgeoisie, which possesses all capital and appropriates the surplus value produced by labour. The state is the protector of property. If it is the bourgeoisie that possesses property, the state

cannot but serve the bourgeoisie and any state would do so. This is why such autonomy as Marxism (sometimes, not always) allows the state, is so ambiguous. The absolute monarchy, the bourgeois republic, the Bonapartist, the "English," the Bismarckian and the Czarist states which Marx and Engels admitted differed from each other, were all said to be states obliged to further the interests of the possessing class, just as the compass needle is obliged to point northwards, no matter in what exotic corner we set it down.

1. The reduction of the state to the role of blind instrument of class oppression is obviously unsatisfactory. Engels and Lenin make intellectually more exacting Marxists wince when they resort to it. Yet the concept of an autonomous state, a state with a will of its own which keeps surfacing in Marx's early political writings, is even less acceptable; to elevate the state to the rank of a subject is revisionism, Hegelian idealism, fetishism if not worse, inconsistent with the mature Marxism of the Grundrisse and of Capital. It leads to deep political pitfalls. Among them, mainstream socialism is menaced with lukewarm reformist notions of the state reconciling society's inherent contradictions, promoting worker welfare "despite the bourgeoisie," taming "crises of overproduction," etc. The proponents of planned "state monopoly capitalism" as the means to mitigate capitalist chaos, and Juergen Habermas and his Frankfurt friends with their doctrines of legitimation and conciliation, are all considered as carriers of this menace.
    
2. A synthetic solution of some elegance, elaborated mainly by modern West Berlin Marxist scholars, consists in grafting social contract theory on to the trunk of Marxism. Capital in the "fragmented" (i.e. decentralized) capitalist mode of production

consists of "individual capitals" (i.e. separate owners have separate bits of it). These "capitals" require that workers be docile, trained and healthy, that natural resources be renewed, legal relations enforced and streets paved. No individual capital, however, can profitably produce these goods for itself. A problem of "externality" and a problem of "free riding" stand in the way of capitalist reproduction and accumulation. Non-imposed cooperative solutions, sparing capital the risks involved in surrendering itself to a state, are not envisaged. There is, thus, an objective necessity for a coercive state "beside and outside society" to protect workers' health, provide infrastructures, etc. From this necessity, its form and function can be logically derived (Ableitung).*33 It leads to the state's monopoly of force, just as various other forms of political hedonism lead to it in the systems of Hobbes and Rousseau. Yet the "doubling" (i.e. splitting) of the economic and the political sphere and the Besonderung (separateness) of the state are subject to the "dialectic of appearance and essence." The state appears neutral and above classes because it must stand above "individual capitals" in order to serve general capital; it must subjugate the individual bourgeois in order to secure the interests of the bourgeoisie. Any state having the power of coercion, whether absolute monarchy, republic, democracy or despotism, seems able to fulfil this function.

1.6.8 However, the bourgeoisie must for some reason be requiring more than this, for otherwise it would not rise up in revolution, as it is supposed to do, to smash the pre-capitalist state. It is desperately important to Marxism to maintain, despite all contrary evidence, that revolutions reflect the economic requirements of the class which is called upon by the developing "forces of production" to rise to dominance, and that the contradiction between capitalist techniques and pre-capitalist relations of production must be resolved by revolution.

1.6.9 This belief is a source of difficulties and for none more so than for historians who hold it. An historian who does not, and who did more than most to dispel many of the myths that used to be spread about the French Revolution, reminds us: "neither capitalism nor the bourgeoisie needed revolutions to appear and become dominant in the main European countries of the nineteenth century," remarking drily that "nothing was more like French society under Louis XVI than French society under Louis Philippe."*34 Starting off in 1789 firmly committed to the sacredness of property, in a little over four years this revolution reached the point where property rights were to become contingent upon active support for the state of the Terror (Laws of Ventôse). Ironically it was Thermidor-the counterrevolution-which called the state to order, rescued the inviolability of property and secured the bourgeois interests which were supposedly the raison d'être of the revolution. Once it ejected the Girondins, the revolution made the purposes of the state override the security of tenure of property and, contrary to the usual excuse made for it, it continued to escalate its radicalism long after the tide of war had turned in its favour. Marx, who (notably in "The Holy Family," 1845) recognized perfectly well that the Jacobin state "became its own end," that it served only itself and not the bourgeoisie, considered this a perversion, an aberration, a departure from the norm. He diagnosed the trouble as the alienation, the detachment of the Jacobin state from its bourgeois class basis,*35 and in no wise suggested that it is far from being an aberration for the state to detach itself from its "class base," if indeed it was ever attached to it.

1.6.10

Nor is Marxist theory better served by the historical facts of other revolutions. Engels is reduced at one point to grumble that the French have had a political and the English an economic revolution-a curious finding for a Marxist-and at another juncture that the English have, in addition to their bourgeoisie, a bourgeois aristocracy and a bourgeois working class. It has been pointed out that while the view that the "big," "real" revolutions were brought about by the interest of a class, fits badly 1776 (USA), 1789 (France), 1830 (the Low Countries) and 1917 (Russia), it fits worst of all the two English revolutions of 1640-9 and 1688-the Puritan and the Glorious.*36 Nor did capitalism need a revolution to rise to dominance of a sort in the Italian city states. Moreover, Russian peasant and mercantile capitalism between the seventeenth and nineteenth century throve to such good effect that it colonized the Black Soil region and Siberia, without noticeable hindrance from Moscow, which was the seat of a decidedly pre-capitalist state.*37 (It may be, though, that such "frontier" phenomena should be regarded as exceptions, i.e. that capitalism can colonize and settle a frontier, without being helped or feeling hindered by the state.)

1.6.11 Whether with or (in deference to historical evidence) without the benefit of revolution, the capitalist class nevertheless ends up with the state serving its interest. Sometimes, in aberrant, "untypical" situations, however, the bourgeoisie does not dominate the state. The distinction is important as it admits an at least quasi-autonomy of the state in particular historical settings. Engels formulates this as follows: (The state) "in all typical periods is exclusively the state of the ruling class, and in all cases remains essentially a machine for keeping down the... exploited class."*38 We must, I think, take this to mean that there are periods (which we can thus recognize as typical) when the state is an instrument of class oppression acting at the behest of the ruling class, while at other times it escapes the control of the ruling class yet continues to act on its behalf, for its good, in its interest. The ruling class, of course, is the class which owns the means of production, whether or not it "rules" in the sense of governing.

1. Just as the weather is not unseasonable in Russia except in spring, summer, autumn and winter, so there have not been untypical periods in the history of capitalism except in the golden ages of the English, French and German bourgeoisie. In England, the bourgeoisie has purportedly never sought political power (the Anti-Corn Law League and later the Liberal Party for some reason do not count), and was content to leave the state in the hands of the landowners, who could attract atavistic popular loyalties and whose apparent even-handedness and social concern helped retard the development of proletarian class-consciousness. It is not clear whether the English state is to be regarded as autonomous-Engels speaks of the aristocracy being properly remunerated by the capitalists for governing-but no doubt is left that it represents the capitalist interest more effectively and cleverly than the politically inept bourgeoisie could have done.
    
2. In France, at the fall of the July Monarchy the bourgeoisie momentarily found itself with political power on its hands. It was unfit to wield it, parliamentary democracy (viz. the election of March 1850) unleashing popular forces which endangered the bourgeoisie more than any other group or class.*39 (Contrast Marx's diagnosis with the astonishing position taken by Lenin in "The State and Revolution" that parliamentary democracy is the ideally suited system for the requirements of capitalist exploitation.)*40 In "The Eighteenth Brumaire of Louis Bonaparte," Marx talks of the bourgeoisie abdicating power, condemning itself to political nullity; he compares the dictatorship

of Napoleon III to a Damocles sword hanging over the head of the bourgeoisie. It is not clear whether Marx thought that in abdicating, it was aware of the dangerous aspects of Bonapartism, lower-middle class populism, state parasitism, etc. He felt sure, though, that in doing so the bourgeoisie bought itself the secure enjoyment of property and order, which would suggest that the Damocles sword was not really poised over its head. Engels, as usual plainer in meaning, states that Bonapartism upholds the wider interests of the bourgeoisie even against the bourgeoisie. Like the rod for the good of the child, the autonomous state of the Second Empire was really for the good of the capitalist class even at times when the latter felt restive under it.

1. Germany, while being (as ever) a case apart, with its bourgeois revolution of 1848-9 coming much too late and miscarrying into the bargain, has nevertheless this in common with England and France; the Prussian state and, after 1871, the Reich, did what it had to do to further capitalist exploitation without being in any way under capitalist direction or control. When Engels says that Bismarck cheated both capital and labour to favour the "cabbage Junkers" (who, despite the favours, the grain tariff and the Osthilfe, stayed stubbornly poor), he is admitting the autonomy of the state (for subservience to the landed interest did not make the state class-controlled, as landowners no longer constituted a functionally real, live class-only the capitalists and the workers did that), without suggesting that this cheating gave the capitalists cause for complaint, any more than did the treacherous alliance of Bismarck with the despised Lassalle, and Bismarck's whole reformist, "social," welfare-statist drift. Solid bourgeois interests were being consistently served throughout, despite the bourgeoisie.
    

The Marxist prototype of the state, in short, allows it a good deal of autonomy outside "typical periods," i.e. virtually all the time, yet obliges it always to use this autonomy in the sole interest of the capitalist class. Nothing much is made by Marx, nor by his successors down to the present, of his original insights into the phenomenon of the state lacking a particular class base and serving its own ends, nor into bureaucracy, parasitism, Bonapartism and so forth.

1. In the end, Marx could not admit that it really mattered whether the state was or was not controlled by the ruling class. It had to act in its interest regardless. It made little odds whether the state was directed by true representatives of their class like Casimir-Périer and Guizot, Peel and Cobden, or by a classless adventurer like Louis Bonaparte, not to speak of men like Castlereagh or Melbourne in England, Roon or Bismarck in Prussia or Schwarzenberg in Austria-Hungary, who had little time for bourgeois concerns. Any state, it would seem, would do. Any state could be relied on to do what was good for capitalism.
    
2. Pursuing this logic further, we find moreover that the converse is also asserted: not only will any state do, but whatever it does turns out, on examination, to be good for capitalism. When in December 1831 Marshal Soult leads 20,000 troops against 40,000 striking silk workers in Lyons, when in June 1832 General Lobau reaps 800 dead or wounded rioters in putting down the Montmartre disorders, when in April 1834 there are 300 casualties in Lyons again while in Paris Bugeaud's troops fire into women and children, the state is helping the exploiters. When the English Combination Acts of 1799 and 1800 make it (broadly speaking) a criminal conspiracy for employees to organize, the state is an ally of capital.
3. When the 1802 and especially the 1832 English Factory Acts make it illegal to work children under eighteen the same hours in industry as on the land, the state is somehow still helping the manufacturers. When trade union organization is (to put it simply) made lawful in England in 1824, in Prussia in 1839, in France and most German states in the early 1860s, when a ten-hour day is laid down by law in much of the USA in the 1850s, the state is still acting in the capitalist interest, properly understood. (The Marxist hypothesis of the state always acting in the interest of the ruling class is as irrefutable as the vulgar Freudian one of a person's actions always being the result of his sexual drive, both when he yields to it and when he resists it. Damned if he does and damned if he doesn't.)
    
4. The sole difference between the manifestly pro-capitalist and the ostensibly anti-capitalist acts of the state is that we need the dialectic method correctly to place them in a triad of thesis-antithesis-synthesis in order to see that the latter are the same as the former. Virtual, formal, superficial, ephemeral anti-capitalist appearance will thus dissolve into basic, genuine, long-term, true pro-capitalist reality.
    
5. In fact it is hardly feasible to reconstitute what might be the Marxist theory of the state, without recourse to dialectics. The state engages in acts that harm capital and capitalists, like progressive taxation, the grant of legal immunities for trade unions, anti-trust legislation, etc. These acts are pro-capitalist. The state serves the ruling class,*41 and as these are acts of the state, they are necessarily in the ("real") interest of the ruling class. Individual members of the capitalist class may be too short

sighted to recognize their real interest, and may be restive about the state's actions, joining the John Birch Society in opposition to bourgeois democracy, but the class as such will see the identity of its interest with that of the state, for this is how Marxism defines the concepts of ruling class, class consciousness and state.

1. The same iron-clad reasoning goes today for the socialist state, the working class and proletarian class consciousness. Many (or for that matter all) workers may be individually opposed to the actions of the socialist state. These actions are, nevertheless, in the interest of the working class, for the necessary terms are so defined as to make this true. Antagonism between the socialist state and the working class is a nonsense term; empirical evidence of conflict is admitted only on condition of redefining one of the terms, for instance in the 1953 East Berlin or in the 1956 Hungarian uprising the security police becomes the working class, Russian tank crews are friendly workers, while those rising against the state are either not workers or are "manipulated." (It is hard to find a more impressive example of the two-fold function of words, the semantic and the magical.) Although all this is no doubt tediously familiar to the contemporary reader, it has the merit of being a replica of, and an aid better to appreciate, the Marxist argument about the absurdity of the capitalist state (i.e. the state which Marxists conceive of as "capitalist") turning against the capitalist class.
    
2. Turn where he may, the bourgeois as political hedonist is thus stuck in a dead end. At first blush, Marxism seems to be telling him that if the state did not exist, he ought to invent it the better to pursue his pleasure-the exploitation of the proletariat-for which the state is the appropriate instrument. On a closer look, however, the state is a peculiar instrument, for it subjects him to its

conception of his best interest and it serves its conception even despite the bourgeois. This is obviously unsatisfactory to each capitalist, taken individually. It may be satisfactory to the capitalist class if, but only if, we admit the existence of a class consciousness which is unrelated to the consciousness of the actual members of the class. Though Marxists have no difficulty admitting this, it is hardly likely to find favour with a member of the class concerned, nor is it designed to do so.

1.6.23 What, then is the capitalist to do? The state is either indispensable or just helpful to him. If it is indispensable, a necessary condition, if capitalism cannot function without it, the capitalist must invent the state, or embrace it if it has already been invented. If the state is merely a helpful instrument, the capitalist might very well prefer, if he has the choice, to pursue his interest without its help,

i.e. perhaps less effectively but also unburdened by the servitudes and constraints which the autonomous state's conception of the capitalist interest imposes on him.

1.6.24 On this choice, Marxism gives no clear guidance. The thesis that the state, if it exists at all, must necessarily further class oppression, does not entail that the state must exist if there is to be class oppression. Why not have private, small-scale, home-made, diversified oppression? Though Engels, at any rate, appears to have held that a state must arise if there is division of labour and consequently society becomes complex, he did not really imply that capitalism presupposes a state and that the exploitation of labour by capital could not take place in the state of nature. To assert that he did imply this is to ascribe to him a rigid economic determinism or "reductionism," and though it is fashionable for modern Marxists to patronize Engels, they would still be reluctant to do that. The bourgeois, wondering whether he must unquestioningly opt for the state or whether he can try and weigh up the pros and cons (always assuming that by some miracle he is given the choice), is really left to make up his own mind.

1. The historical evidence points, as is its well-known habit, every which way, leaving it very much up to the capitalist to decide whether the state, with the risk its sovereignty involves for the possessing class, is really a desirable aid for the operation of capitalism. It is revealing of such perplexities to read of how inadequate the state can be as an instrument of class oppression, and of the remedies that were sought at one time. It appears that prior to the repeal of the Combination Acts in 1825, illegal unionism was rampant in Oldham, Northampton and South Shields (and no doubt elsewhere, too, but the account in question is a local one), the Acts being poorly enforced. Through three decades to 1840, unions grow muscle, "frame rules... and inflict punishments": the state was useless, and an 1839 Royal Commission report on the county constabulary found that "the owners of manufacturing property had introduced arms for self-defence, and were considering the formation of armed associations for self-protection,"*42 in some ways a more appealing idea than paying taxes and not getting the state's help they thought they were buying.
    
2. When hiring Pinkertons to break strikes and "to protect manufacturing (and mining) property," the Pennsylvania steel industry or the Montana copper mines not only made up for the shortcomings of state and Federal "instruments of class oppression," but have done so by taking up a private instrument which they could control and which in any case did not have the attributions and the scale to control them. No doubt armed voluntary associations or Pinkertons were only resorted to (in fact

surprisingly rarely), when the state utterly failed to come to capitalism's aid as it was supposed to do. That sometimes it did fail is yet another support for the view that the political hedonist is really quite gullible in thinking that he has made a clever bargain, for there is precious little he can do to make the state keep its side of it.

1.6.27 Although there may be talk of "armed associations for self-protection" and Pinkertons may be called in to give an expert hand, these devices are essentially aimed at supplementing the services of the state which are inadequate or afflicted by momentary political cowardice and weakness of will. There is no question, except briefly in the American West, of taking the law permanently into one's hands and getting by without the state, both because the national brand of law and order is felt to be superior or safer, and because making it at home or in the village, without also producing strife and resentment, is a lost skill. This is basically the same misconception as the one identifying the state of nature with bellum omnium contra omnes and which overlooks some potent forces making for reasonably stable, peaceful cooperative solutions if, by a fluke, a learning process gets a chance to start operating. It is at any rate significant that, despite wishful gropings in this direction, there was until quite recently no good intellectual case for holding that one could give up the state without also wholly giving up certain services it renders, without which capitalism would find it awkward to function. There have since been good arguments making it plausible that the interaction of free contracts could spontaneously generate a supply of such services as contract enforcement and the protection of life and property, i.e. most of what the capitalist really wants from the state.*43 The point is not whether such voluntary arrangements are conceivable once a state is in place. Most likely they are not, if the very existence of the state breeds a civil society with a diminishing capacity for generating spontaneous civic cooperation. (It is not easy to think of any other good reason for the absence, in contemporary America, of vigilante action by desperate parents against drug-pushers in high schools.) It is, rather, that if they are conceivable and feasible ab initio, there is no compelling need for willingly subjecting oneself to the state. The capitalist who accepts coercion as being, by common knowledge, a cheap price to pay for the benefits he reaps, is suffering from "false consciousness."

1.6.28

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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1. The Capitalist StateClosing the Loop by False Consciousness False consciousness helps people adjust their preferences to what their peace of mind requires, and prepares them for supporting an adversary state.

1. The most unselfish state could not pursue other ends than its own.
    
2. The political hedonist looks to the state for "pleasure," for utility, for the furtherance of his interest. Were he to recognize that the state cannot administer things without also governing men including him, so that he is liable to be coerced and constrained, he would still expect to enjoy a positive balance between the pleasure he derives from the state's help and the pain he may suffer from being hindered by it.*44 In fact, his general idea of the state is that it is none other than the professional producer of such a positive balance. If he had a different conception, he could still be a supporter of the state but not a political hedonist.
    
3. The state is equipped with powers to pursue its own pleasure, its "maximand." Were it to be a near-minimal state, it would still have at least the latent capacity to equip itself with powers to do so. Its maximand may be a sole and supreme end or a "pluralistic" bundle of several ones, weighted more or less heavily. If the latter, it will juggle them as the feasibility of attaining each changes with circumstances, giving up some of one to get more of another, in order to reach the highest attainable index of the composite maximand. Some of these ends may, in turn, perfectly well consist of the individual maximands, pleasure-pain balances or utilities of its several subjects. In good faith, one should imagine an unselfish state which has no other ends in the bundle it seeks to maximize than several individual maximands of its subjects or of an entire class of them (e.g. the capitalists or the workers). In better faith

still, one could seek to define the state which is both unselfish and impartial as one whose composite maximand consists solely of the individual maximands of all of its subjects, great and small, rich and poor, capitalist and worker alike in a spirit of true unity and consensus. Comic as the idea may look when set out like this, it should not be laughed out of court too fast, for (set out in softer lines) it represents most people's notion of the democratic state, and as such it is a very influential one.

1. By virtue of having to weigh them-for there is no other way of fusing them into a single magnitude, an index to be maximized-the state must, its unselfishness and impartiality notwithstanding, transform its subjects' ends, assimilating them into one of its own, for the choice of weights to be applied to each subject's end is nobody's but the state's. There is a quite unwarranted belief that in democracy, the state does not choose the weights, because they are given, incorporated in some rule which the state cannot but follow as long as it stays democratic.
    
2. A typical rule of this sort would be one-man-one-vote, which assigns a weight of one to every elector whether the state likes him or not. The fallacy of this belief consists in the passage from votes to ends, maximands. The tacit assumption that a vote for a political programme or for a team in preference to another is approximately the same thing as an expression of the voter's ends, is gratuitous. The existence of a social mechanism, such as elections, for choosing one out of a severely limited set of alternatives, such as a government, must not be construed as proof that there exists, operationally speaking, a "social choice" whereby society maximizes its composite ends. This does not invalidate the simple and totally different point that being able to

express a preference for a political programme and for a person or team to wield power in the state, is a valuable end in itself.

1. If the state, in pursuit of impartiality, were to borrow somebody else's system of weights (to be applied to the several ends desired by its subjects), for instance, that of the sympathetic observer, the same problem would reappear, albeit at one remove. Instead of choosing its own weights, the state would choose the observer whose weights it was going to borrow.
    
2. None of this is new. It is merely a particular way of reiterating the well-known impossibility of aggregating individual utility functions into a "social welfare function" without somebody's will deciding how it should be done.*45 The particular approach we have chosen to get to this conclusion has the merit, however, of showing up fairly well the short-circuit going straight from the state's power to the satisfaction of its ends. If the state were its subjects' father and its sole end were their happiness, it would have to try and reach it by passing along a "loop" consisting, in some manner, of the several happinesses of the subjects. But this is made inherently impossible by the "layout" (plurality and conflict among the subjects, combined with the state's power to decide conflicts). The layout inevitably contains a short-circuit. Thus the state's end-fulfilment is quite direct, bypassing the loop going the long way round, via the social contract or via class rule and the satisfaction of the subject's ends.
    
3. The capitalist state, as I have argued (pp. 32-3) is one to which it is logically possible (but only just) to attribute some imprecisely defined maximand ("butterflies"), lying outside the realm of goals which can be attained by making its subjects do things. For the

essentially negative reason that it is best not to erect an apparatus for exerting power lest it should fall into the wrong hands, such a state would govern as little as possible. Since it would take an austere view of demands for public goods and of claims by third parties for amending, supplementing or otherwise overruling the outcomes of private contracts, there would be little common ground between it and the political hedonist who wants to get his good out of the state.

1.7.8 If a subject is to be contented, in harmony with a capitalist state, it would help him to be imbued with a certain ideology whose basic tenets are: (1) that property "is," and is not a matter of "ought" (or that "finders are keepers"); (2) that the good of the contracting parties is not an admissible ground for interfering with their contracts and the good of third parties only exceptionally so; and

(3) that requiring the state to do agreeable things for the subjectgreatly augments the probability that the state will require the subject to do disagreeable things.

1.7.9 The first tenet is quintessentially capitalist in that it dispenses with a justification for property. Some say that Locke has provided an ideology for capitalism. This seems to me off the mark. Locke taught that the finder is keeper on condition that there is "enough and as good" left for others, a condition calling out for egalitarian and "need-regarding" principles of tenure as soon as we leave the frontier and enter the world of scarcity. He also taught that the first occupier's right to his property springs from his labour which he "mixed" with it, a principle on a par with the several others which make the ownership of capital contingent upon deserts: "he worked for it," "he saved it," "il en a bavé," "he provides work for many poor people." (If he did not do any of these meritorious things, what title has he got to his capital? Already the case of "his grandfather worked hard for it" becomes tenuous because it is twice removed from such deserts.) To the extent that the rise of capitalism was accompanied by no political theory which sought to separate the right to property from notions of moral worth or social utility, let alone succeeded in doing so, it is true that capitalism never had a viable ideology. This lack, in turn, goes some way towards explaining why, in the face of an essentially adversary state and its accompanying ideology, capitalism has shown so little intellectual vigour in its own defence, and why such defences as it has managed to muster have been poor advocacy, lame compromises and sometimes offers of honourable surrender.

1. The second basic tenet of a proper capitalist ideology should affirm the freedom of contract. It must affirm it in particular against the idea that the state is entitled to coerce people for their own good. On the other hand, it would leave it ragged at the edge where it could cut into the interests of people not party to the contract whose freedom is being considered. The raggedness is due to a recognition of the indefinite variety of possible conflicts of interest in a complex society. It would leave the contract unprotected against a certain indefiniteness of right, of either too much or too little regard for the interests of those outside, yet affected by, a given contract.
    
2. This danger, however, is to some extent taken care of by the constraint arising out of the third tenet. The demand of A to have the state protect his interest which is affected by a contract between B and C, should be tempered by his apprehension of the consequential risk of finding himself under increased subjection as and when the claims of others are being attended to, for that is liable to mean that his contracts will be interfered with. These

offsetting motivations can be more formally expressed as two imaginary schedules present in people's heads. For every person A, there should be a schedule of benefits (in the widest sense) that he would expect to derive from the state's progressively increasing degrees of concern for what could be called third-party interests in the deliberately neutral vocabulary I am attempting to use in discussing contracts. Another schedule should list the negative benefits (costs) which he would fear to suffer as a result of the state's escalating solicitude for the well-being of others. It is, of course, vain to pretend to empirical knowledge about such schedules even if it is admitted that they express something which is liable to exist in the heads of rationally calculating people. However, it could be suggested that poor people (and not only poor ones), people who feel helpless, who think they usually get the worst of any bargain, would have a schedule of expected benefits from state intervention which was, at any practicable level of the latter, always higher than the corresponding schedule of expected costs. In other words, they could never get too much help from the state, and never mind the restrictions, servitude and pain that this may entail. Conversely, rich people (but not only the rich), resourceful, self-confident people who think they can shift for themselves, could be regarded as carrying in their head a sharply rising schedule of negative benefits which soon mounts above the schedule of positive benefits at any but the most minimal scale of government activity.

1.7.12 I advance no hypothesis about the scale and shape of the cost-benefit schedules which describe real people's attitudes to these questions, nor about the ones they "ought to" have if they all had the very highest order of political wisdom, insight and understanding. The implication of this duality is that the consequences of calling in the state to further one's interest are complex; they are partly unintended, and also largely unforeseen.

People endowed with the political talents that take them as close as possible to perfect foresight would, therefore, presumably have different attitudes from those who assess proximate consequences only.

1. This concept of individual costs and benefits as a function of the state's concern for third-party rights will serve for the purpose of defining adherents to the capitalist ideology as people who consider (a) that as government intervention increases, the total disadvantages they will suffer increase faster than the total advantages; and (b) that the former exceed the latter at a level of state activity which is somewhere short of the actual level, so that when living in an actual state, such people expect that they would feel better off if there were less government interference with free contracts.
    
2. This does not, of course, mean that people adhering to the capitalist ideology must seek to go all the way and attain the state of nature. It means, however, that at the margin of actual experience they would seek to restrain and "roll back" the state. It means that in terms of the direction of change, they would find congenial the capitalist state which (as we have seen) has intelligible reasons of its own to put restraints upon itself.
    
3. Such a state, it cannot be said too often, is an abstraction, an expository device. So is the person adhering to the capitalist ideology. He is not necessarily the abstract capitalist. He may be the abstract wage-earner. His identification with an ideology which (we contend) is the one par excellence conducive to the proper functioning of capitalism is not, as the Marxist theory of consciousness would have it, a necessary consequence of his role

in the prevailing "mode of production." He need not "exploit"; he may be "exploited." His consciousness with regard to the state can (if it really must!) be tautologically derived from his interest; if his personal pain-and-pleasure, cost-benefit, help-or-hindrance calculus tells him that he is better off under less government, he will be for less government. No a priori reason stops a wage-earner from reaching this conclusion, any more than it stops a real-life capitalist from wanting more government. Marxism, at least "vulgar Marxism," would condemn both for false consciousness, for failing to recognize their "real" interest which (again tautologically), is completely derived from their class situation. However, enough has been said by now to make clear that we find no convincing reason to suppose that a person is somehow making a mistake if his ideology is not the one purportedly "corresponding" to his class situation. A capitalist and a worker may both be allergic to the state they know; they often are; their reasons may well be largely the same.

1. All theories of the benign state, from divine right to social contract, carry the tacit assumption that the satisfaction or happiness of the state is for some reason and in some manner attained through the happiness of its subjects. No good reason is offered for this, nor a plausible manner in which it could take place. Therefore, there is no warrant for this rather demanding assumption, least of all when it is made tacitly. Rational action by the state links its power to its ends in a natural short-circuit, without passing along the long and winding loop which is, so to speak, the locus of the subjects' own conception of their good. With the best will in the world, no state, not even the most direct democracy or the most enlightened absolutism, can make its power run round such a loop. If it has heterogeneous subjects, it can at the very best, in the limiting case, further its own composite conception of their several goods.
2. False consciousness can, with luck, close the loop; for subjects need only believe that their ends are no different from the ends the state is in fact furthering. This, it must be supposed, is the meaning of "socialization." Such a result is promoted by the state's ability (and in particular by the role it assumes in public education) to render society relatively homogeneous. It is closely allied to the process alluded to at the beginning of this chapter whereby people's political preferences adjust to the political arrangements under which they live.*46 Instead of people choosing a political system, the political system can to a certain extent choose them. They need not with Orwell's Winston Smith, actually come to love Big Brother. If substantial numbers or perhaps a whole class of them develop sufficient false consciousness to identify their good with what the state is actually providing, and accept the collateral subjection without doubting the attractiveness of the bargain, the basis is laid for consent and harmony between the state and civil society, though the state is, inevitably, a presumptive adversary of its subjects.
    
3.  

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

Advanced Search 2. The Adversary StateRepression, Legitimacy and Consent

Reliance on consent, as a substitute for repression or legitimacy, makes the state into a democratic and divisive force.

1. To tell one sort of state from another, one should first look at how they go about getting obeyed.
    
2. In organizations that survive, a few command and the rest obey. In all, the few dispose of some means of sanctioning disobedience. The sanction may be the withdrawal of a good, like partial or total deprivation of the benefits of belonging to the organization, or it may be an outright bad like punishment. By suitably bending such terms as command, obedience, punishment, etc. this can be recognized as true for such institutions as the family, school, office, army, union, church and so forth. The sanction, to be efficient, must be suited to the nature of the offence and the institution. For the prosperity of an organization it is probably equally bad to over- and to under-punish. Usually, however, the graver the appropriate sanction, the less is the discretion of those in command to apply it.
    
3. Max Weber, in an extension of this thought, defined the state as the organization which "successfully claims the monopoly of the

legitimate use of physical force."*47 The vulnerable aspect of this famous definition is the circularity of its idea of legitimacy. The use of physical force by the state is legitimate for no more fundamental and logically prior reason than that it has successfully claimed a monopoly of it and has thus become a proper state.*48 The use of force by others is illegitimate by definition (except of course under delegation by the state). Thus doubt is cast on the existence of the state in a society where masters could in their discretion flog their servants or union militants can dissuade fellow workers from crossing picket lines by unspoken threats of unspecified revenge. A definition which might resist counter-examples rather better would lay down that the state is the organization in society which can inflict sanctions without risk of disavowal and can disavow sanctions by others. There are sanctions which, due to their inappropriateness or gravity, risk provoking appeal or need backing up by a more powerful organization. Only the state's sanctions, for lack of a more powerful dispenser of sanctions, are certain not to be appealed.

2.1.3 This statement has the merit of expressing the state's sovereignty. If there is nothing "above" it, the state's decisions must be understood as final. However, for some purposes, it is sometimes convenient to treat the state, not as a homogeneous body with a single will, but as a heterogeneous composite made up of higher-and lower- and sideways-differentiated "instances." In such a view, though appeal is impossible against the state to something beyond it, it is possible within it, against the bad local potentate to the good central bureaucracy, against the bad minister to the good king, against the axe-grinding executive to the impartial judiciary. In fact, it was the unease the very idea of sovereignty, of no further recourse, aroused in sober minds which used to set them off on the grand quest for the Holy Grail of political lore, the separation of powers, the supremacy of the legislature and the independence of the judiciary.

1. A less hopeful view of the morphology of the state sees a rub in this. Appeal from one instance of the state to another in general, and the independence of the judiciary in particular, presuppose the very conditions they are designed to ensure, like the raincoat which only keeps you dry in dry weather. Appeal within the state is fine if there are good ministers serving a good king and government is by and large benign. The judiciary is definitely a safeguard against the executive as long as the executive lets it be, but it has no powers to enforce its own independence. Like the Pope, it has no divisions, and like him, it cannot behave in temporal matters as if it had many. Its capacity to defy an executive unwilling to take defiance, is in the last analysis nothing but a dim reflection of the chances of successful popular revolt on its behalf-chances which are themselves usually the fainter the more the independence of the judiciary is waning. The 1770-1 clash between the French magistrature and the monarchy is a telling example of the point I am making. The parlements, in defying the king, had expected a broad popular clientele to stand behind them, but few would stick their necks out on their side. The magistrates, of course, actually owned their offices. They were nationalized and reimbursed. The new magistrates, chosen from among the old, became salaried officers of the king. They were assured security of tenure, presumably to ensure their independence!
    
2. The state may, of course, consider it positively useful to give its judiciary a measure of independence for ulterior reasons (cf. pp. 209-11). On the other hand, it may also do so because, its ends being quite restricted and "meta-political," it sees no particular

point in having a subservient judiciary. Seeing no such point may perhaps be a serviceable preliminary criterion of the benignity of the state. Reflection will show, however, that ultimately such a criterion is not serviceable, for while guaranteeing the rule of law, it may just guarantee the rule of bad law (and a state which is bound by its own bad laws, though better than the state that readily subordinates or adjusts law to reason-of-state, is not benign). However, at least it clarifies the relation between the independence of the judiciary and the state's purposes. The former cannot purify the latter. The judiciary cannot render the state benign to ensure and perpetuate its own independence, any more than the proverbial man can lift himself by his own bootstraps.*49

1. The separation-of-powers argument, once invoked, all too easily leads straight to the muddle of supposing the state to be benign because powers within it are separate, though causation runs the other way and only the other way; powers are genuinely separate only if the state is benign. We can, of course, tediously keep reminding ourselves that some powers are more real than others and that the test of reality is the ability of one to coerce the other, even if push never comes to shove because the latent chance of the use of force may always keep paper power in its place. Viewing the state as a plurality of instances including the caucus of the ruling party, the kitchen cabinet and the political police as well as the Weights and Measures Department, may save us from the sinful use of holistic, "systematically misleading expressions,"*50 but for our present purpose the assumption of a homogeneous body and a single directing will, to which one appeals and against which one does not, is going to obviate much wearisome repetition.
    

Any state obtains obedience in one of three ways. The most straight-forward and historically often the first way is the threat of outright punishment which is implicit in the state's superior command over means of repression. The least straightforward and transparent way is the establishment of its legitimacy. For the present purpose, legitimacy will be taken to mean the propensity of its subjects to obey its commands in the absence of either punishments or rewards for doing so.

1. A little elaboration may be called for. It will be remarked that such a definition makes legitimacy, not an attribute of the state, but a state of mind of its subjects. Depending on history, race, culture or economic organization, one people may accept a given state as legitimate while another would, if it could, reject it as a hateful tyranny. Foreign conquerors bringing progressive government to a benighted race exploited by its own ruling class, seldom have the tact and patience needed to become legitimate. There may also be some truth in the belief that some people are more governable than others, so that White Russians, with their reputation for meekness, may have recognized as legitimate, and fairly willingly obeyed, each of the successive and quite different states represented by Lithuanian, Polish and Great Russian rule. On the other hand, people on the Celtic fringes seldom feel that the state deserves their obedience no matter what it does either for them or to them. In France, where rule by divine right had a long gestation and after a period of conceptual muddle came to dominate political consciousness roughly from Henri II to Louis XIV, it was yet contested throughout by both Huguenot and Ultramontane ideologists and was twice near-fatally defied, by the League under Henri III and by the Fronde under Mazarin. If this proves anything, it is that concessions to the most potent counterforces in society, and the groping for consensus, are no recipe for breeding legitimacy.
2. Hume, who was firmly unimpressed by contractarian political theory, held that even if the fathers obeyed the state because they had become parties to a social contract, they have not bound their sons; the latter obey out of habit. Habit is probably nine parts of any good explanation of political obedience, but it does not explain much of legitimacy. Habitual obedience may itself rest on latent threats of coercion, on a dim sense of repression lurking in the background, or on the political hedonism the sons inherited in the form of "common knowledge," from their contractarian fathers and which the state continued to nurture by an economical dripfeed of rewards.
    

1. Just as we want repression to be a logical limiting case of the spectrum of possible obedience-eliciting relations between state and subject, the case where unwilling people are all the time coerced by the threat of force to do the things the state wishes them to do and which they would not otherwise do, so we want legitimacy to be the limiting case at the opposite end, where the state can make people do things without possessing much in the way of the means of physical coercion or having many rewards to dispense. Thus when, in the Peasant Revolt of 1381, the young Richard II called out to the rebels: "Sirs, will you shoot your King? I am your captain, follow me,"*51 it was the force of legitimacy which turned around the bereaved and furious bands of Wat Tyler. The King had, for the short run that alone mattered in that fateful moment, neither armed force to set against them, nor bribes for soothing their grievances, and he threw them no scapegoat. He needed neither.
    

Nothing, obviously, could suit a rational state better than to become legitimate in this sense. The only exception would be the state for which coercion, rather than being a more or less costly means to get people to obey it, would actually be an end, a satisfaction. It is no doubt tempting to view the state of a stylized Caligula, a simplified Ivan the Terrible, an unsympathetic Committee of Public Safety or a schematic Stalin in this light. In reality, even where cruelty seems gratuitous and terror both redundant and of debatable efficacy, so that the observer would ascribe it to the perverse whim of a tyrant, in the mind of the perpetrators it may well have been the indispensable laying of a groundwork for future legitimacy. A case study of how Aztec Mexico, Inca Peru and nineteenth-century Buganda attempted to legitimize their respective states in the face of a hostile and heterogeneous mass of subjects, concludes that "socialization involving benevolence and terror" were the principal ingredients of policy employed.*52 Others included the establishment of "patterns of deference-demeanour," the claiming of infallibility, the shaking up and mixing of ethnic groups and education for citizenship rather than for knowledge, so as to inculcate a liking for the state's own values.

2.1.12 Though many of the ingredients must crop up again and again, it seems doubtful whether there is really a recipe in statecraft for getting from repression to legitimacy. Certainly no obvious one seems to have a decent success ratio, for legitimacy has been rare and elusive throughout history, needing ingredients simply not available at the snap of the state's fingers. It took successful wars, prosperous peace, charismatic rulers, a great shared experience and perhaps, above all, continuity. The great value to the state of some undisputed rule of who gets the tenancy of power, like the Salic Law of dynastic succession, agreed and adhered to for some time and seen, like all good laws, to be impersonal and heedless of the merits of rival contestants, is precisely to retrieve continuity (albeit only a dynastic one) from death. It is partly for this reason that while, in general, it is no easier for a state to attain complete legitimacy than for the camel to pass through the eye of the needle, it is yet a little harder for republics than for monarchies. (Few political arrangements seem less apt to foster legitimacy than frequent elections, especially presidential ones focusing on a passing person. Every so many years, controversy is stoked up, to the effect that A would be a good and B a bad President and vice versa. After it has reached great heat, the controversy is supposed to be settled, by a possibly infinitesimal margin of votes, in favour of the good or of the bad candidate!)

2.1.13 No state relies on repression alone and none enjoys perfect legitimacy. It is trite to say that neither can really be employed without some admixture of the other, the prevailing amalgam of repression and legitimacy in any state depending, as Marxists would say, "on the concrete historical situation." However, between the poles of coercion and divine right there has always been another element which is clearly neither: consent, historically perhaps the least important type of obedience-eliciting relation between state and subject, but perhaps the most fertile of recent consequences, particularly unintended ones. In early states, one can think of consent as binding only some minute but special group of subjects to the locus of the state's will. The war gang's obedience to a tribal leader or that of the praetorian guard to the Emperor may be examples of consent which border on complicity. Whether it is augurs, priests or officers of the state security police, the obedience of such small groups of people is a condition of the state's tenure of power; like a pulley for lifting great weights by small force, it can set off the processes of repression as well as those, never assured of success, of creating legitimacy. Yet their complicity and collaboration with the state's ends derives as a rule neither from repression nor from legitimacy, but from an implicit contract with the state which sets them apart from other subjects and rewards them at the latter's expense in return for their willing obedience and consent to the state's power. Some intellectually quite intriguing, and in their effects most portentous, problems arise when the group thus set apart and rewarded, expands amoeba-like across society, with ever more people inside and less outside it, until in the theoretical limit everybody consents and everybody is rewarded for it but there is nobody left to bear the cost (cf. pp. 260-1).

1. Consent for our purpose is best defined as an accord between state and subject, revocable with little advance notice by either party, whereby the subject adopts some appropriate and favourable attitude ranging from active militant support to passive allegiance, and the state furthers the subject's specific ends up to limits which are constantly renegotiated and adjusted in the political process. It is very much less than the social contract, if only because it creates no new right or power for the state. It is not "social" because the civil party to it is never the whole of society, but merely the individual subject, group or class with motives and interests setting it apart from other individuals, groups or classes.
    
2. While the social contract treats the subject's life and property or (as in Rousseau) his general good, the contract of consent deals with his partial and piecemeal ends; both contracts attract the political hedonist, but in different ways. No continuing obligations are created by the contract of consent any more than by cash-and-carry transactions which do not bind the parties to repeat them.
    

Let us revert to the rewards of consent. When nanny and the children practise the politics of consent by agreeing that if the children will be good children this afternoon, there will be strawberry jam for tea, strawberry jam is within nanny's gift. In the short run, she can bestow it or not as she pleases. But the state has, generally speaking (and abstracting from such exotic and dated phenomena as strawberries grown on the royal domain) no rewards to bestow, no jam that is not already the jam of its subjects. Moreover, as I had occasion to point out in chapter 1, in the general case where its subjects are not unanimous in their conceptions of the good, the state can in the nature of the case only further its good which may, for all we know, be its conception of their good.

2.1.17 We have also noted that progressive assimilation of people's own ends to the ends selected and pursued by the state, i.e. the development of "false consciousness," can erode and at least in principle fully dissolve this contradiction. As Professor Ginsberg puts it in his Consequences of Consent: democratic elections "erode the adversary relationship between rulers and ruled... encourage citizens to believe that expansion of the state's power meant only an increase in the government's capacity to serve,"*53 and "modern democratic governments tend to increase their control over the public's putative means of controlling their actions."*54 However, the spread of false consciousness is neither a strong nor a sure enough mechanism for always securing the allegiance the state requires. First, it is not something the state can be confident of engendering unilaterally, at its sole volition, and certainly not over a short enough period. After all, it took almost a century from Jules Ferry's vast reforms creating universal lay state education to the emergence of a socialist electoral majority in France, and over the intervening turns and byways the ultimate result was at best only rather probable, never certain. Where an ideologically not quite inept opposition exists, it can spoil the fresh growth of false consciousness as fast as the state is promoting it. Secondly, relying heavily on false consciousness is like "doing it with mirrors." The people the least likely to be taken in could well be the tough and hard-nosed sort whose support the state most needs.

2.1.18 The common-sense perception that the state has no rewards to dispense that do not belong to its subjects anyway, so that it can only pay Paul by robbing Peter, is of course harmful for good-citizen false consciousness. By way of remedy, there stands the arguable assertion that the consent-generating transactions between state and subjects enhance social cooperation (and hence output, or harmony, or whatever good it takes social cooperation to produce) to the effect that the gains of the gainers exceed the losses of the losers. For well-rehearsed reasons, such an assertion is now generally taken to be a value judgement (it could be a statement of fact only in the special case where there are no losers, i.e. where all gains are net gains, and the latter are minor enough not to imply a significant change in the distribution of goods). It is the value judgement of the person who undertakes the adding up (with due regard to algebraic sign) of the gains and losses. No very good reason is on hand why his values should take precedence over anybody else's who might get a different sum from the same addition. Recourse to the value-judgements of the gainers and losers directly involved settles nothing, for the losers might well value their losses more highly than they do the gainers' gains, while the gainers are quite likely to do the opposite. Thus an impasse is reached. For equally well-rehearsed reasons, no gainer-to-loser compensation test seems possible which could "factually," in a wertfrei manner prove the availability of a residual surplus of gains over losses, to be applied to the greater fulfilment of the gainers' ends. Without such a surplus, however, there is no fund, created by the incremental contribution of the state to some index-number of total social end-fulfilment, out of which the state could bestow bits of end-fulfilment to selected subjects without damage to others.

1. Nor would the production of a surplus of good and its bestowal be sufficient to earn consent for the state. If a given subject came to hold that the activities of the state do generate additional end-fulfilment for him, he would for that reason alone have no interest to support the state any more than he was already doing. As far as he was concerned, the state's bounty might be falling from heaven and changing his own conduct vis-à-vis the state could not make it fall any thicker. If he became a more docile subject and a more convinced supporter of the "government party," he may have done so out of admiration for good government, or gratitude, but not out of rational self-interest in the narrow sense, on which political calculus can be based. This is possibly the abstract and general common element in the political failures of Enlightened Absolutism, the reformist good governments of Catherine the Great, the Emperor Joseph II and (less obviously) Louis XV, each of which met mainly with stony indifference and ingratitude on the part of the intended beneficiaries.
    
2. Rewards, to elicit self-interested support, must be contingent on performance. They must be embedded in implicit contracts of the "you will get this for doing thus" kind. Consequently, it is difficult to envisage the politics of consent without a type or types of political markets joining rulers and ruled, to enable bargains to be struck and revised. Democracy might be regarded as one or both of such types of markets functioning side by side. One is the majority-rule, one-man-one-vote type of pure electoral democracy, where the state at intervals engages in a competitive

auction with (actual or potential) rivals for votes. The other, much older and less formal type of market, now usually called "pluralistic" or "group interest" democracy, is an endless series of parallel bilateral negotiations between the state and what one could, vulgarly but tellingly, call the wielders of clout within civil society. Clout must be seen not only as the capacity to deliver votes, but also as any other form of support useful for maintenance of the state's power over its subjects, as a substitute for outright repression by the state itself.

1. I have no formal theory to offer which would take stock of and systematically organize the general causes inducing the state to aim at securing power more by consent and less by repression (or, what seems as yet much rarer, vice versa). Perhaps no such theory is really possible, at least not one which would deduce the state's chosen policies from the assumption that it will select the means which lead efficiently to its ends. For it is arguable that the state relies on consent basically out of short-sightedness, weakness of will and the corollary liking for the line of least resistance. It usually seems easier to give than to withhold, to extend and dilute rewards than to restrict and concentrate them, to please more rather than less and to wear a bland rather than a stern face. Repression, moreover, has in fact often involved close identification of the state with an ally in civil society, a group, stratum or (in Marxist sociology, invariably) a class such as the nobility, the landed interest, the capitalists. Rightly or wrongly, states tended to judge that close alliance with some such narrow subset of society made them a captive of class, caste or group and negated their autonomy. As kings from medieval times sought to lessen their dependence on the nobility by soliciting the support of town burghers, so did the state in more modern times emancipate itself from the bourgeoisie by enfranchising and buying the votes of successively broader masses of people.
2. Taking these democratic ways out of the predicament which repressive government represents for the state (rather like committing the moral fault by which the protagonist tries to escape his fate in a properly constructed tragedy), entails its own punishment. "Punishment" for the state comes in the form of having to put up with political competition with rivals for power, whose consequences are ultimately destructive of the very ends the state was attempting to fulfil.
    
3. One logical issue out of this dilemma is resort to what is politely called people's democracy, where the state has ample means to repress political competition yet solicits a degree of its subjects' consent by raising expectations of future rewards once the building of socialism is sufficiently advanced. Some implications of open rivalry for state power, the multi-party system and of "clout" in civil society which may oppose the state unless bought off or reduced, will be more systematically treated in chapter 4, "Redistribution," and the state's rational response, principally the reduction of civil society's clout, in chapter 5, "State Capitalism."
    
4. When it is a question of obtaining tenure of the state in the first place, or not losing it, first things come first, with any considerations of how to use power once it is secured, coming obviously second in logical order if not in value. Assembling a broad enough base of consent can both earn power, and pre-empt the political ground which a narrower base would leave dangerously vacant and open for others to invade. Whether or not the rulers of a democratic society have the acuity to foresee the ultimately frustrating character of rule-by-consent (as compared to the disciplines of rule-by-repression, and the state of grace which

is rule-through-legitimacy), the logic of their situation-drift-the politics of small steps drive them on in the democratic direction. They must deal with the immediate consequences of their previous weaknesses regardless of what the more distant future may call for, because, in the unforgettable phrase of a famous British consent-seeker, "a week is a long time in politics."

1. Some of these considerations may help explain why, contrary to the early schoolbook version of disenfranchised masses clamouring for the right to participate in the political process, the drive for widening the franchise often came as much from the ruler as from the ruled. This seems to me the realistic view to take of Necker's electoral initiatives for the French provincial estates in 1788-9, of the English reforms of 1832 and 1867 and of those of the Second Reich after 1871.
    
2. Rewards, finally, do not spontaneously grow on trees, nor are they generated and distributed to good citizens by good government. They are bargaining counters which the state acquires for distribution to its supporters by taking sides. A presumptive adversary of all in civil society, to obtain the support of some, it must become the actual adversary of others; if there were no class struggle, the state could usefully invent it.
    
3.  

Author: Jasay, Anthony de Title: The State Anthony de Jasay

Advanced Search

2. The Adversary StateTaking Sides

The rise of partisan democracy in the nineteenth century served to build both mass consent and a bigger and cleverer state apparatus.

1. In a republic of teachers, the capitalist ends up as the political underdog.
    
2. The foundations of the lay Western welfare state were probably laid in England's 1834 Poor Law, not because it was particularly good for the welfare of the poor (it was in fact bad in that it abolished outdoor relief) but because, at the same time as concerning itself with the poor, the state transferred the larger part of the administrative responsibility for them from the dilettante and independent local authorities to its own professionals in what was then starting to take shape as the civil service. The foremost author and promoter of this scheme of building state muscle and governing capacity was the great practical utilitarian Edwin Chadwick, without whose intense drive much of the intervention of the English central government in social affairs might have

taken place several decades later than it did. However, there he was, his zeal speeding up historical inevitability by twenty years or so, clearly recognizing that if the state is effectively to promote a good cause, it must not rely on the goodwill of independent intermediaries whom it does not control.*55 When subsequently he addressed his energies to public health, he obtained the creation of the General Board of Health with himself as its first Commissioner, only to have the Board peter out on his retirement in 1854, demonstrating how much depended, at that incipient stage of historical inevitability, on the commitment of a single individual. It was not till 1875 that the state got round to recreating an administrative body in the Public Health Act and in doing so, incidentally committing "the largest invasion of property rights in the nineteenth century."*56 It is surprising, in view of the authority the state was acquiring over the subject in other areas of social life, that education remained facultative until 1880.

1. On a lower level of eminence than Chadwick, the inspectors created by the first Factory Acts had a somewhat analogous role as spearheads, at one and the same time, of social reform and of the aggrandizement of the state apparatus. In supervising the observance of the successive Factory Acts, they in perfect good faith kept finding further social problems for the state to solve. As these problems were in turn tackled, they found that as an incidental by-product, their own authority and the number of their subordinates had also increased. There was, in fact, a first major wave of expansion of the state's concerns and, parallel with it, of its apparatus, from the Reform Act of 1832 to 1848, as if meant to secure the allegiance of the new voters; then followed a relative lull from 1849 to 1859, coinciding with the decade of conservative reaction on the Continent; and a rush of increasing activism ever since.
2. It has been estimated that over the period from 1850 to 1890 the number of British government employees grew by about 100 per cent and from 1890 to 1950 by another 1000 per cent; public expenditure in the nineteenth century averaged about 13 per cent of GNP, after 1920 it never fell below 24 per cent, after 1946 it was never less than 36 per cent and in our day it is, of course, just below or just above the half-way mark depending on how we count public expenditure.*57 Statistical series over longish periods are rightly mistrusted because their context is liable to change in important ways. For similar reasons of non-comparable contexts, international statistical comparisons, say, of GNPs absorbed in public sector consumption and transfers, should be treated with some reserve. Nevertheless, where the relative numbers show vast differences either over time or between nations, one can safely draw at least the modest conclusion that government in England in the last century and a half increased several times over, or that among the major industrial countries, no government leaves as much of GNP for private purposes as the Japanese. It is perhaps appropriate at this point to recall again Walpole's lack of governing zeal and relate it to the fact that his government had all of 17,000 employees, four-fifths of them engaged in the raising of the revenue.*58
    
3. I will not deal a second time with the irrefutable dialectic argument that when in a situation of conflicting class interests the state sides with the working class, it is really siding with the capitalist class, for whoever has at his command the invincible adjective "real" must win any controversy over this, as over anything else. I merely note that in areas of possible concern which the earlier English state (the Hanoverian even more resolutely than its Stuart predecessor) largely ignored, the nineteenth century saw public policy playing an increasing role

which was at least prima facie favourable to the many, the poor and the helpless. The passage from the state's absence and unconcern to its progressive predominance had (in part predictable) consequences for the freedom of contract, the autonomy of capital and how people came to view their responsibility for their own fate.

1. At least in the early part of the century, the anti-capitalist drift of the reform movement certainly did not come from some clever calculation on the part of the state that there was more support to be gained on the "left" than lost on the "right." In terms of the pre1832 electoral arithmetic, this would have been dubious reckoning anyway. Up to the 1885 electoral reform if not beyond it, the main political benefit of taking sides with the labouring poor was derived not from getting their votes, but those of the progressive professional middle class. The earliest pro-labour legislation pleased above all the squirearchy and beyond it those magnates who particularly despised the money-grubbing of the mill-owners and their unconcern for the welfare of the millhands and their families. Sadler, Oastler and Ashley (Lord Shaftesbury) were imbued with righteous animosity towards the manufacturers, Sadler's 1831-2 Select Committee on Factory Children's Labour producing one of the most virulent anti-industry tracts ever.
    
2. The capitalist defence was characteristically inept. With the passage of time, as and when state policy helped the poor at the expense of the rich, it was both to help the poor and to please some altruistic or envious third party-the concerned middle class reared on Philosophical Radicalism (and, once or twice, just a certain, inordinately influential Master of Balliol). Even when broad popular support became a more clearly recognized and avowed objective, the state may have often been pushed farther by

articulate middle- and upper-class opinion than could be warranted by the tangible political advantage to be reaped from some progressive measure. "False consciousness," a ready acceptance (bordering on gullibility) of what the articulate say about the duty of the state in matters of social justice, was seldom absent from tentative forecasts of political profit and loss. Perhaps the most intriguing feature of the relatively quick transformation of the near-minimal Georgian state into a Victorian partisan democracy, an adversary of capital, endowing itself with an autonomous bureaucracy (albeit to a more moderate extent than many other states that were, for various reasons, more powerful and autonomous to begin with), is the mute defeatism with which the capitalist class, instead of drawing confidence from the dominant ideology of the age as it was supposed to do, submitted to the role of political underdog, contenting itself with making good money. Germany had Humboldt, France had Tocqueville to think and express the thoughts that were becoming urgent about the proper limits of the state and the awesome implications of popular sovereignty. England had only Cobden, Bright and Herbert Spencer in this camp. Her major thinkers, in keeping with the utilitarian tradition, in fact prepared the ideological foundations of the adversary state. (Historical circumstance, which gave Jacobinism to France and an adulation of the nation state to Germany, was admittedly much less kind to statism in England, where its ideologists had a relatively hard row to hoe till the last third or so of the century.) Mill, despite his ringing phrases in On Liberty, his mistrust of universal franchise and his dislike of the invasion of liberty by popular government, had no doctrine of restraint upon the state. His pragmatism strongly pulled him the other way. For him, state intervention involving the violation of personal liberties and (to the extent that these are distinct) property rights, was always bad except when it was good. True to his broad utilitarian streak, he was content to judge the actions of the state "on their merits," case by case.

1. The doctrinal impotence of the capitalist interest is nicely illustrated by the course of labour law. English law regarding trade unions went round full circle between 1834 and 1906, from forbidding combinations to restrain competition in both the supply of and the demand for labour, to ultimately legalizing combinations to restrain supply and also exempting them from having to keep contracts when it was inconvenient to do so. Much the same effect favourable to labour could have been achieved in less provocative ways. Violating the principle of equality before the law between capital and labour was, one might have thought, asking for it. Yet there was no worth-while doctrinal capitalist counter-attack, no appeal to first principles, nor to the as-yet uncontested verities of political economy.
    
2. The English state, twice almost disarmed vis-à-vis civil society in 1641 and 1688, regained its predominance over private interest on the back of social reform, accomplishing its partisan anti-capitalist turn tentatively and gradually over nearly a century. In Continental Europe, civil society never disarmed the state which remained powerful, in governing apparatus and repressive capacity, even where it was standing on clay feet. The anticapitalist turn as a means of building a base of consent, came rather later in these countries, but it was accomplished more rapidly. The watershed years when capitalism became the political underdog (though very much the top dog financially, becoming acceptable socially and still capable, in the case of such eminences as the Pereira brothers, the James de Rothschilds, the Bleichröders or the J. P. Morgans, to bend back the state to serve capitalist purposes), were either side of 1859 in France, 1862 in the North German Federation and 1900 in the USA.
3. It was roughly in 1859 that Napoleon III, in his own eyes a man of the left, began really to rely on the Assembly and to practise the rudiments of parliamentary democracy, and of a particular sort at that: for Guizot and Odilon Barrot were gone from the scene, to be replaced by such men of the radical left as Jules Favre, Jules Ferry and Gambetta, with only the "despicable Thiers" representing continuity of an unlovely kind with the bourgeois monarchy. Striking became legal in 1864 and a proper charter for labour unions, with fringe measures ranging from workers' pensions to price control on bread, was legislated in 1867, Napoleon III taking a sympathetic interest in the encouragement of trade unions. Perhaps coincidentally with his shift toward the politics of consent, he showed a fine disregard for the capitalist interest in throwing open the French iron and steel, engineering and textile industries to the more efficient English and Belgian competition. Sharing the widespread illusion that a nation of shopkeepers will pay for a commercial good turn with such political support as he needed for his transalpine ambitions, in late 1859 he sent Chevalier, an ex-professor of economics with the free-trade convictions that such a calling tends to engender, to Cobden in London; it took the two kindred spirits an hour to negotiate a whole new free-trader tariff, to the furious surprise both of the Minister of Finance and the manufacturers concerned. Though perhaps of no more than anecdotal interest (anyone with a little acquaintance with tariff negotiations can at least smile at the story), the incident is characteristic of the respect the French state had, then as ever, for the interests of its industrialists.
    

2.2.10 Another facet of the adversary state which started to matter under the Second Empire and became very important in the Third Republic, was the autonomous evolution of the bureaucracy. The French professional civil service, built by the labours of Colbert, Louvois, Machault, Maupeou and, in unbroken continuity, by Napoleon, was at first closely entwined with property and enterprise, both because of the negotiability and (initially) relatively high capital value of offices, and of the dual role most of the civil service dynasties played in the royal administration and in the chief capitalist trades of the time, army contracting and tax farming. At the fall of the July Monarchy, in 1848, a regime which was less ambitious than most to dominate society, the civil service was more powerful than ever and, of course, more numerous (Marx noted, as a significant element in his characterization of the Second Empire, that there were 500,000 bureaucrats smothering civil society in addition to 500,000 soldiers), but no longer had much of a proprietorial stake in French industry and little property in general. The estrangement between capital and the bureaucracy was further accentuated in the Third Republic. While the top layer of the civil service was certainly upper-class (to Gambetta's indignation) and continued to be dynastic, such property as it had was mainly in rentes, and it had no understanding of, nor common interest with, entrepreneurial capitalism.