The government with Only One Law
by Ronn Neff: part three
The government with only One Law
In 1952, James C. Ingebretsen in an essay, "A Libertarian's Platform," recently reprinted by the Future of Freedom Foundation wrote: "The platform of the libertarian candidate is simple. It has only one plank in it: No special privilege for anyone."
He continued: "Government, limited to the defense of the life and livelihood of all citizens equally, has no special privilege within its power to grant. A government cannot grant anything to anyone which it does not take from someone else." And: "Libertarians [do not] grant to an agency government in any of its forms any rights which they themselves do not possess." And so: "He [the Libertarian candidate] reasons that he cannot correct uncivilized man by becoming uncivilized himself."
Similarly, Clarence Manion: "Government does not create liberty; on the contrary, government is the persisting danger to human liberty." And: "This role of government as the enemy of liberty was well understood by the Founding Fathers of the Republic." (Clarence Manion, "Cause of Corrupt Government," speech to the National Small Businessmen's Association in Washington, D.C., in 1952. Reprinted in Freedom Daily, May 2001, pp. 33-34.)
I might have found a similar quotation from almost any period, but I have picked two that stand at the very brink of modern libertarianism (Frederick Hayek's Road to Serfdom was published in 1944, Ayn Rand's Atlas Shrugged in 1956, and Murray Rothbard's Man, Economy, and State in 1962) to draw attention to this fact: for the entire history of their movement, modern libertarians have understood that government is the enemy of liberty. Yet with few exceptions most notably Rothbard they have continued to accept a "limited" government as the defender of liberty. Their acceptance has not been grudging: they have shown themselves energetically and positively willing to entrust to it the defense of liberty, to assert without argument that it is the only possible defender of liberty. All this in full awareness that a minority among them have presented formidable arguments against employing that enemy, arguments which most modern libertarians make no effort to refute or even to grapple with.
Let me merely summarize those arguments: it makes no sense for a recognized enemy of liberty to be entrusted with its defense. It makes much more sense to be looking among institutions and agencies that are friendly to liberty, indeed, to be looking among institutions and agencies that might depend on liberty for their own well-being and survival. Broadly speaking, this is why I am a free-market anarchist: the free market depends on the existence and continuance of liberty. It can more certainly be depended on to generate agencies or institutions to defend liberty than liberty's recognized enemy can be.
That said, let me turn to the One Law argument. If there were a state, it goes, in which there were only one law, and it were a just law let us say, a law against murder could I not support or at least settle for such a state? The point of the argument is that once I settle for the state with One Law, why not settle for a state in which all of the laws are objective and just? And since the Libertarian Party purposes to achieve such a state, does it not make sense to join forces with it to achieve that end?
Again we see a failure of the imagination. Yes, we can postulate the existence of such a state, just as we can postulate the existence of The Emerald City. We can even postulate roads between here and there. But it does not follow that any of those roads can be built.
How did that One Law get passed? It was passed by a legislature composed, presumably, of elected officials. Some procedure of majority rule was enlisted to determine how to pass such a law, and some procedure of ratification was also in place.
Both the procedure of majority rule (whether simple majority or super majority) and the procedure of ratification represent two laws already existing. Even before we get to the One Law, there were two pre-existing laws. Where did those laws come from?
There is more. Where did the legislators come from? Someone by some rule determined how a person might become a participant in the proceedings that would produce the One Law. That determination is at least one other law. Moreover that law not only names some as legislators but excludes others from exercising legislative power. That law created a legislative elite.
In short, in order to get the One Law (or any other so-called just law) on the books, there must already exist dozens and dozens perhaps hundreds and hundreds of procedures, all with the force of law, allowing some men to pass the One Law and forbidding others to pass it. By the very nature of things, there cannot be just One Law. It is an epistemological absurdity.
But cannot the procedures all be just? If each of the procedures is just, and the One Law is passed in accordance with them, and it itself is just, is not the governmental system just?
Here we find ourselves at the heart of all the flaws in all the arguments for the state. It is at this level that we see at last that the One Law argument and, indeed, every argument for government fails because it has not kept its eye on the ball. Looking all over the field for new plays, counterarguments, and logical subterfuges, government's supporters have lost sight of the ball.
The ball is legitimate authority.
To pass any law the One Law or the procedures that have the force of law there must exist a body holding authority to enact those procedures and excluding others from enacting them. And where will that authority come from? How will it sprint into existence?
It is conceivable that a given population will choose unanimously to follow certain procedures for producing legislation. The first dissident, the first new birth into that community, the first change of heart, destroys the unanimity. But why talk about unanimity at all? We know perfectly well that no case for limited government has ever postulated it, has ever proposed it, has ever recognized its necessity.
Every argument for limited government recognizes at the outset that no constitution will ever enjoy the real legitimacy that would come from original unanimity. And failing to obtain original unanimity, it has no legitimacy and can never create it for itself. Just as true legitimacy reproduces itself in the consequences that flow from its operation, so illegitimacy reproduces itself in the procedures it settles on and in the legislation that flows from them.
Special interests. Legitimacy is not the only failing of the Government with Only One Law. It lacks objectivity in making decisions. All action requires material. And all material is either owned or it is unowned. All government even a government determined to be limited to a few functions and not intrude itself into the market requires a fair amount of material to be at its disposal: shelter, chairs, utilities, paper, lighting, transportation. The list is practically endless. And where will the government get that material? Will it rent it? Will it purchase it?
Let's just consider the building in which our worthy legislators Ron Pauls, all of them will debate the First Law. Who owns it? Was it an empty building that the government has rented? Was it an existing building it bought? Or was it built for the purpose? The answer does not matter, because any answer starts us on a realization that this government with One Law, this government with only just laws, will necessarily and unavoidably be guilty of arbitrary intrusions into the market. The services of some real-estate entrepreneur or some contractor must be engaged for the legislature even to meet somewhere. And that entrepreneur or contractor will then enjoy a nonmarket advantage.
I say "nonmarket advantage" because the actor in this case is not a market entity. It is the government, which did not emerge from market procedures and which does not operate in accordance with market principles. A government that aims at justice is thwarted at the very outset because it has no objective basis on which to make any decisions whatever. As soon as it attempts to own or manage property, it intervenes in the market. If it makes bad choices, it will not go out of business. It cannot be driven out of business even if merchants or suppliers or contractors do business exclusively with its competitor, because it has no competitors.
The whole point of arguments for government is the assertion that the market cannot produce laws or justice. But though government does not arise from the market, it must act in the market. It must make decisions that affect the market for better or worse. There are no market rules for it to follow, so all its decision-making will be done arbitrarily. Even if it devises a set of decision-making protocols, they will not be market-based. They will be essentially arbitrary: can it hire the brother-in-law of a popular legislator to build the building? Why not? If I am building a used-book shop, I can certainly hire my brother-in-law as the contractor. If I rent an existing shop, I am free to rent it even if the landlord is a friend who charges higher-than-market rates. Is the government to be prohibited from making similar decisions? Must government exclude favoritism as a basis for making choices? On what basis must favoritism be excluded?
Perhaps contractors and lessors must submit proposals and the government will make its decision on the basis of ... of what? Whatever basis it chooses will favor one market actor rather than another. It will advance one entrepreneur's fortunes and not those of another. It cannot help it. And because the government cannot be subject to the requirements of profit and loss, the laws of the market do not apply to it. (I am, of course, speaking metaphorically, for it is government officials who make the decisions, not "the government" itself.)
The same is true for hiring workers to take care of the property. If the Government with Only One Law has a bureaucracy of any sort no matter how small; perhaps someone just to transcribe the One Law and to proofread its promulgation on what basis can it hire? A businessman may make his decision on any basis he likes. Can a government? May the government make racist hiring choices? The free-market businessman can. May the government make nepotism a guide to hiring? The free-market businessman can. Should the government hire the elderly, who will not become an entrenched bureaucracy? or should it hire the young, who will become experienced and build an inventory of familiarity with the proper procedures? Should it pay much in order to attract the best-qualified? or should it pay little to attract only the most civic-minded?
Again, it does not matter. All its decisions will be arbitrary. And all will interfere with the market. After all, it will be drawing its labor force out of the market.
But our limited-government libertarians had all intended not to interfere with the market. They had all intended to support the free market. But they cannot. They are going to buy uniforms, weapons, vehicles. They are going to occupy buildings. They are going to engage employees. Someone must build their naval bases; someone must build their ships; someone must maintain them. Who? and how will that agency be chosen? These are all the actions of a major participant in the market.
It affects the market in other ways. Anyone who might want to deal with the government to supply its needs will necessarily configure his business to those needs. The government wants its employees to compose their memos in Word Perfect? Software suppliers who want that business will have to stock up on Word Perfect, to the detriment of Microsoft Word, and to the detriment of applications created only for the Macintosh or for Linux operating systems. Secretaries will have to be sure they are fully conversant with Word Perfect if they want to get jobs in the minimal state or with agencies that supply contract services to it.
Will there be bathrooms in the buildings where the Legislature of 50 Ron Pauls debates and passes its One Just Law? Will there be changing tables in them? Will there be feminine-hygiene products? What brands will be chosen? What suppliers of those brands? Will there be paper towels, and if so, what brands and what suppliers? Or will there be instead hot-air driers? What brands and what suppliers?
Can we stop there? We cannot. How will the state pay for any of these goods and services? I am not concerned here with the question of taxation, which is vexatious enough for the so-called limited government. Rather I am asking about the raw mechanics of payment. Money? Checks? Drawn on what bank? Where will the government's money be stored? Will it draw interest, will it be invested in securities of some sort, will it simply sit in a box and be "hoarded"? The minute the government begins to act, it has invaded the financial markets. As well, the minute it chooses not to act, it affects the financial markets.
And every time it acts, it creates a special interest.
Government is the sine qua non of special interests; those interests cannot exist without it. As champions of the free market, Libertarians have always understood that. But what those who support the existence of a government have not understood is that the very existence of government calls forth special interests. Ingebretsen wrote, "Government, limited to the defense of the life and livelihood of all citizens equally, has no special privilege within its power to grant." But as we have seen, no government can be limited to the defense of the life and livelihood of all citizens equally. It has to act to maintain its infrastructure, and when it acts, it will be acting in the marketplace. It cannot help creating interests dependent on it. Because it is dependent on them.
Is that surprising? Not at all. Government itself is an entity defined by special privilege, claiming special privilege, and exercising special privilege the special privilege, the monopoly privilege of supplying the defense that Ingebretsen named. It has in its gift nothing to offer but special privilege. It seized it from those it purposes to govern, and it has nothing of value to offer anyone else in exchange for anything it might need. And once any market actors have received its privileges, government must either protect them with its continued economic patronage, or it must overthrow them and so create openings for new special interests to seek them.
In Dark Suits and Red Guards, Nicholas Strakon observes that any regulation by government must benefit some business interest. Suppressing nuclear power benefited the oil interests. Regulating the oil interests benefits the coal interests. It must happen even if the beneficiary has nothing to do with the legislation. To regulate one industry is to benefit another.
Similarly, to engage one business for any service or product is to benefit it to the exclusion of its competitors.
Government must be seen as the supply side of special interests. Special interests demand a government, and it supplies their need. The only way to keep special interests and privileges from arising is for there to be no agency that supplies their needs, so that they remain stillborn.
I cannot emphasize strongly enough that it doesn't matter what answers are given to any of the questions I asked above. The outcome is the same: the government cannot help but function in the marketplace. It cannot help but give business to some merchants and not to others. And its choices will not be market choices because it is not a market entity. When the state does business with a merchant, that merchant enjoys a special privilege, exactly what the one plank of Ingebretsen's libertarian candidate forbade. The state may attempt to diffuse its special privileges to avoid creating a monopoly in the field of government goods-providers or government service-providers. But even there it is not acting as a market entity. Does a book publisher have to diffuse its paper purchases? Of course not. His decisions will be market-based. Or they will be based on his aesthetics. Or they will be based on his family dynamics and what he must do to keep his wife happy. It does not matter in his case that is, it does not matter to us because he is making choices about his own property.
As long as there are governments there will perforce be government contracts. And where there are government contracts, government intrudes into the marketplace and invites special interests, special privileges, and corruption. There will always be a Brown and Root, a Northrop Grumman, an IBM to spend government money. I do not say that corruption is inevitable, though it is virtually certain. But corruption is not the point. The existence of the special interests and the privileges they enjoy are the point, and they are logically certain.
See it then, this government, this institution in which we are to place so much hope, in which we are to entrust our liberties: It has no authority. All its choices must be arbitrary. It interferes in the economy. It gives rise to special interests, it holds out the promise of special privileges, and is dependent on the existence of special interests. And all before its personnel have held even one debate to pass the One Law.
To the next part: "Getting ahead of ourselves."
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