A more limited government
By RONALD N. NEFF
Mr. Neff is senior editor of The Last Ditch
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Limited-government libertarians, who regard government as a necessity, if not a good, generally take a common view: that its purpose is to provide police services, a court system, and defense against foreign attacks.
Even when they acknowledge that society can make use of private security services and private arbitration services, they regard government, with a monopoly on the use of force, as necessary. In her defense of the necessity of government, Ayn Rand wrote, "Suppose Mr. Smith, a customer of Government A, suspects that his next-door neighbor, Mr. Jones, a customer of Government B, has robbed him; a squad of Police A proceeds to Mr. Jones' house and is met at the door by a squad of Police B, who declare that they do not accept the validity of Mr. Smith's complaint and do not recognize the authority of Government A. What happens then? You take it from there." ("The Nature of Government," 1963.)
In particular, they will argue that a government is necessary to hold a kind of monopoly on the use of force and to be the "final authority" in disputes. These arguments, of course, show a great confidence in the ability of government to oversee matters, to make sure that private security companies do not get out of line, to make sure that court procedures are fair and follow certain procedures deemed necessary or good for reaching just decisions, and so on.
The libertarians who embrace the idea of limited government are perforce saddled with all sorts of difficulties pertaining to how a government should be structured and how it raises money, along with questions about its personnel, the details of housing it, bureaucracy the list is almost endless. (Should a head of state be paid a lot to encourage those who could not afford to leave a market job? Or should he be paid little so that only sincere men who had the good of the country at heart would be attracted to the job?) I dealt with many of these questions in "The government with only One Law," and anyone with a bit of imagination can certainly expand the list he finds there.
Then there is the government's constitution. Is it to be modeled on the U.S. Constitution with the Bill of Rights? Or must a completely new one be written ("A new constitution for a new country")? Has the libertarian movement given us such a Solon?
We must remember that the advocates of limited government must, in the nature of things, have a fairly high confidence in government's ability to do the things they want it to do, and to refrain from doing the things they do not want it to do. They must have a fairly high confidence in their own ability (or someone's) to write a constitution that will "work" and not be subverted in any major way over a long period of time.
In many of my writings, I have attempted to show how ill-placed such a confidence is. But for my present purpose, I will not look at that. For my purpose here, I shall assume that government is every bit as capable in making prudent judgments as its advocates say it is. And, mirabile dictu! I am here to help them craft a limited government.
You read me correctly. I am going to help them craft a government limited, and limited even more than they seem ever to have imagined. For it seems to me that they have all been working entirely too hard on this question. There is a simplification available to them, a way to limit government far beyond the usual program. And if they are serious about limiting the scope and role of government in society, they may even consider the possibility that I am on to something here. After all, the conventional wisdom on this subject is that the less power a state has, i.e., the greater degree to which it can be limited in scope, the less of a threat to liberty it poses.
I suspect that my proposal, in its narrow construction, cannot be adapted to deal with protection from foreign invasion. But I shall have something to say about that later. For now, my proposal deals only with the police services and court system.
My proposal for government police services and court systems is simple: do away with them. Completely. It has already been argued often enough that the market is perfectly capable of providing those services. A market unregulated by the state functions according to natural laws, and there is no reason to suppose that the economic natural law is different from other natural laws. To follow Gustave de Molinari on this point, there is no reason that a monopoly on the use of force is necessary to operate the market for police services or court services, no reason to suppose that these economic services are somehow exempt from the natural law.
But as we know, this paradigm makes our limited-government friends nervous, and they imagine that they have produced an inventory of arguments to show that the absence of such a monopoly on the use of force would be devastating for society.
Very well, let us allow them their monopoly. It does not follow that it needs to be a monopoly that finds expression in police forces or court systems.
I propose that the new and more limited government configure itself, rather, as a licensing bureau.
After all, even now, private-enterprise security systems and arbitration systems must meet government standards. My proposal is: let that be the end of it.
Let all security services operate under a license issued by the state. Let the requirements for being licensed be as strict as the limited-government advocates may wish them to be. Compel the services (on pain of losing their license) to agree to follow whatever procedures the state now requires of its own forces. Put in place whatever protocols the limited government advocates want included.
And let a similar course be followed with respect to the court system.
This is not so very far-fetched. Consider that in most states, the government does not provide alcoholic beverages. Rather it regulates them. It requires the suppliers to function according to some pretty well-defined rules. And there is plenty of free-market competition among them. Or at least competition that resembles free-market competition. I am not suggesting that alcoholic beverages be licensed. What I am suggesting is that the current system for licensing a particular market can inform the writers of a new constitution for a new country about how they can configure their state.
There will be plenty of competition, then, among the many licensed entities. Probably there will arise certification societies and professional associations (competing ones, at that) that will help to educate police and court services about the latest techniques, the latest thinking, even the latest regulations.
With this system, virtually every question of just how to constitute a limited government vanishes. Clearly the problem of financing it is solved: the licensing and fees (including the all-important renewal fees) will have to be set at a level sufficient to keep the licensing offices in business.
And what of "gypsy" police services and "rogue" court systems? Nothing could be simpler to deal with. Part of the licensing may require that the "official" services and systems will bring their influence and force to bear in putting an end to that competition, uniting in the effort, if necessary. The licensing provisions could even spell out how such alliances are to be operated. There is no reason for the state to be hands-on in this matter. It had already deputized private industry to address such matters when it drew up the licensing (and, again and equally important, license-renewal) documents.
But what if the licensed entities refuse to abide by the terms of the license? What if so many of them refuse that there are too few loyal ones to enforce the terms of the license?
Well, in that case, what you have is a revolution against the state. And that can happen whether the state is merely a licensing agent or a police state (interesting term) under Fearless Leader or Duvalier or someone.
The system I am proposing, I submit, answers every need of government that limited government advocates advance, with the advantage that government itself lacks the means of directly committing acts of tyranny. To be sure, nothing prevents corruption in the licensing process, but there is nothing distinctive about this problem. Even the most ardent defender of limited government will surely not assert that government itself is free from corruption. Indeed, every objection that might be leveled against this system would merely be a special case of an objection that a free-market anarchist might level against a more-traditional limited government. Or, for that matter, that an advocate of limited government might level against a government with much wider powers.
It cannot even be argued that the state could not possibly function as a licensing bureau, for it already does. All the duties of the U.S. Licensing Bureau of America are already prefigured in its current dealings with police and courts. And if the state truly cannot be expected to design competent and justice-seeking oversight provisions for licensed police services and courts and write them into its requirements for licensing, it perforce cannot be expected to run them itself.
As to protection from foreign invasion, if the limited-government advocates are confident that society really cannot do without a more traditional-looking government to deal with the problem, I propose that they go ahead and design a government to their liking that will address that problem. And do nothing else. That is, their foreign-protection government will not involve itself in any of the licensing activities of the Licensing Bureau, and the Licensing Bureau will not involve itself in any of the foreign-protection activities. The limited-government advocates like separation of powers. Let them separate them. Really separate them. Radically separate them. And it would be wise if the Licensing Bureau should include in the provisions of licensing that if the Foreign Affairs government should begin to step outside its area of expertise (and legitimacy? no, we shall not get into that), the licensed agencies must take swift and decisive action.
Under all present suggestions, the police and courts are an arm of the diplomacy and war-making branch of government. Separation of these functions real separation of them, radical separation of them will make collusion, not impossible, I suppose, but not quite as easy. After all, under all present suggestions, it is the same people who are involved to some extent in all three functions of government. It can scarcely be easier for the Licensing Bureau and Foreign Affairs government to collude under the system that I am imagining than it is under any existing system or will be under any proposed new government.
I leave it to minds richer in imagination than mine to work out a means consistent with a principle of non-aggression for financing the Foreign Affairs government, but surely that undertaking poses no greater difficulty than that which the advocates of limited government must already confront.
So I put it to advocates of limited government ... you have your reasons for thinking a state is necessary. But what reasons can you give for it not to limit itself to the function of licensing providers of police services and court systems, and for making the entity that licenses them completely and radically separate from the foreign affairs government? Ω
March 3, 2016
Published in 2016 by WTM Enterprises.
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