Can the Minimal State be Justified?

One of the major fault lines in libertarian theory runs between those who regard the state as inherently evil (the “anarcho-capitalists”) and those who contend that the minimal state, i.e. one limited essentially to the provision of national defense and  domestic law enforcement, is morally legitimate. The anarcho-capitalist indictment of the state is quite simple and straight-forward: any coercion employed against innocent persons (those not themselves engaged in aggression against others) is wrong (the “non-aggression principle”). Since the minimal state, among other things, collects taxes on a non-consensual basis to fund its activities, it is morally objectionable.

The anarchist argument will not trouble those who start with different moral presuppositions. Thus, utilitarians would simply reply that the practical advantages of the state in terms of promoting the general welfare justify coercion, at least for its “core” functions. However, since Nozick himself embraces the non-aggression principle, this avenue is unavailable to him. Rather, he tries to show in ASU that because the market for protective services is a sort of natural monopoly, the minimal state could evolve (and presumably operate) in a manner that does not  violate the rights of any party, thereby blunting the anarchist claim that states are intrinsically evil. Nozick’s effort is almost universally (and correctly I believe) regarded as a failure, so I will not discuss it further here.

Thus, we are faced with the question of whether the minimal state can be justified from Nozick’s natural rights perspective. I believe that the most promising approach to this challenge is to argue that coercion employed to fund the activities of the minimal state stands on a different moral footing than it otherwise would. This process starts with the observation that for Nozick our moral agency is the source of special normative status (see the discussion under the link “Natural Rights Libertarianism”). Accordingly, it may be possible to distinguish, from an ethical perspective, state functions that are essential for the preservation of moral agency and those that are not. Arguably, protection from foreign attack or criminal violence is a basic precondition to the exercise of our moral discretion, and thus justified by the very value that gives rise to side constraints against aggression.

So, we can pose this question by means of the imaginary case of a peace-loving island community threatened with imminent invasion by a bloodthirsty horde of barbarians who will murder many of them and enslave the rest. The islanders can successfully repel this invasion if everyone does his or her fair share through the contribution of goods and/or services. Accordingly, the islanders form a government whose sole function is to manage the defense of the island. To do so it requests donations with which to pay its new volunteer army and to make weapons.

Sadly, while most members of the community willingly give their fair share, there are hold-outs who either sincerely object to the use of force even in self-defense or who, on a calculating basis, seek to free ride on the contributions of others. Without the application of coercion against these holdouts, the defense effort will probably fail. In such circumstances is coercion by the island’s government justified? I believe it is, even against the sincere pacifists.

The basis for this conclusion rests on something like the “principle of fairness” first articulated by H.L.A. Hart.  Basically, it is simply unfair for some members of a community to reap the benefits of the efforts of others while refusing to contribute themselves, i.e. by free riding.

Although more controversial, I believe this principle even applies to the pacifists on the island who do not regard expenditures on self-defense as a benefit to them. They must enjoy life or they would have ended it; and they must enjoy their property, or they would have given it away. Thus, they benefit from the defense by others of their lives and property. Pacifists may be sincere free riders, but free riders nonetheless. Therefore, the community, acting through the state, is entitled to force them to live up to their obligations.

Interestingly, Nozick considers and then rejects the principle of fairness by proposing a counterexample. However, his case involves a trivial benefit (entertainment) provided by members of a neighborhood group, and he correctly concludes that the holdout in his case is under no obligation to contribute to the supply of this good (see ASU, 90-5). He does not analyze examples of the sort constructed above, and thus fails to refute the principle of fairness, at least when it is restricted to goods essential for the exercise of moral agency.

Accordingly, I believe the principle of fairness remains viable as a justification for state coercion in the supply of national defense, at least when the state in question is a reasonably just one faced by a realistic threat of aggression.

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14 Responses to Can the Minimal State be Justified?

  1. steven says:

    You could always flee the island instead of treating other people as if they were your property, to be used to serve your own purposes. Non-aggressing individuals don’t have any enforceable obligations to society except those that they freely consent to. The “principle of fairness” is one of the principal reasons that the power and scope of the state has grown by leaps and bounds over the past few decades.

    • Mark Friedman says:

      I agree that everyone on the island has the moral right to leave, but this idea is fully consistent with the principle of fairness. This principle claims to govern what can justly be done to those who choose NOT to leave and still don’t want to contribute to the defense effort. I claim that our moral intuitions sanction coercion when the situation of the islanders in sufficiently dire (as described in my example). Thanks for the comment.

      • steven says:

        I’m not talking about the pacifists leaving. I mean that YOU can choose to leave if you can’t defend yourself against the invaders. You can talk about the “fairness principle” until you’re blue in the face, but other people are not your property, to do with as you wish. The pacifists haven’t initiated force against you. You have no claim on them. You should deal with them on the basis of mutual consent. Period. That’s being a libertarian.

  2. Mike Mooney says:

    Another query: I was doing a routine Amazon search of other writings by Mark Friedman, and Amazon came up with some forthcoming books, one I believe was on “Assisted Suicide.” Is this a different Mark Friedman, or is it you? – Mike M.

  3. Pingback: Schools of Thought in Classical Liberalism, Part 5: Natural rights | Western Free Press

  4. Jake Lanor says:

    While the use of your “principle of fairness” seems to be just the problem of free-loading in general, I think a bigger problem you face is in the initial stage of your thought experiment.

    You state that, “The islanders form a government whose sole function…” In an aim to defend the minimal state, you grant a priori that which claims to provide the basis of coercion against individual autonomy: the legitimacy of the state.

    If they do indeed form a government, you and Nozick are no longer in the same page and you are not addressing his concerns. From your example, the state has formed out of consent, not through the invisible hand evolution of Nozick, at which point it seems unnecessary to even invoke your principle of fairness as a reason to force these pacifists to contribute.

    • Mark Friedman says:

      Hi Jake:
      Thanks for the comment, but I don’t think you really understand my argument. In response to your first comment, note that my version of the principle of fairness only applies to those public goods that are essential to the exercise of rational agency. So it differs from H.L.A. Hart’s version, which would justify coercion for any public good, e.g. basic scientific research, public arts, etc.

      Second, Nozick’s “invisible hand” justification of the minimal state is based on consent. People voluntarily join private protective agencies, that over time consolidate into one big, happy protective agency. Do you really suppose that he, a hardcore libertarian, would attempt to “justify” a state built on coercion? It’s just that his invisible hand explanation fails, as virtually everyone who has examined it agrees. I am suggesting an alternative approach which acknowledges, and justifies, the existence of coercion against free riders for the purpose of military defense and law enforcement only.

      • Jake Lanor says:

        Hi Mark:

        Thanks for the reply. It seems that we are talking past each other. I’m hoping this post will elucidate my points and help you respond more accurately.

        First, the onus is on you to provide a systemic defense of why the principle of fairness would only apply to goods that are “essential to the exercise of rational agency.” Where and how do you draw a principled line from Hart’s view?

        Second, I never denied that the invisible hand approach of Nozick involved consent. Yet, the functions of consent in your hypothetical and Nozick’s derivation differ greatly.

        In your example of the pacifists in the island, the creation of the state is via a Lockean social contract model, which is explicitly something Nozick wants to avoid. His derivation of the minimal state is an attempt to argue against the anarchist that the minimal state would inevitably and naturally form as a result of rational individuals’ actions (see: Gaus, That is also why Nozick goes to such lengths to come up with his principle of compensation — to justify how the state can legitimately compensate individuals for its prevention of their exercise of natural rights.

        Thus, your attempt to defend Nozick’s justification of state coercion in matters of security is based on an entirely different foundation from Nozick’s.

        • Mark Friedman says:

          In the OP I say, “Nozick’s effort is almost universally (and correctly I believe) regarded as a failure, so I will not discuss it further here.” So, of course, my view is entirely different from his. How did you miss this?

          Second, I do not rely on social contract theory, because there are hold-outs. My argument is a justification for using coercion against these free riders. The short argument for this is presented in the OP; the much longer and detailed version, in Chapter 4 of my book.

          From the OP: Accordingly, it may be possible to distinguish, from an ethical perspective, state functions that are essential for the preservation of moral agency and those that are not. Arguably, protection from foreign attack or criminal violence is a basic precondition to the exercise of our moral discretion, and thus justified by the very value that gives rise to side constraints against aggression.

          • Jake Lanor says:

            Thanks for the reply Mark.

            Sorry about missing your statement about intentionally not discussing Nozick’s account of the minimal state. (As an aside, “How did you miss this?” was not well-received — unnecessary adhominem, no?) I did not realize how lofty your goals were — to provide a different account of how minimal states would arise under a natural rights framework.

            I am skeptical as to how successfully you’re able to tie your principle of fairness with a natural rights perspective. With a simple hypothetical, some derivative of Hart’s principle, and some claim on the importance of moral agency, you’re trying to provide a moral foundation for natural rights that not even Nozick or Locke provided.

            Assuming the moral foundation as natural, however, I now see the appeal of your attempt to base some state functions on a different moral foothold.

            Still, I wonder how defensible your claim, that some state functions are distinguishable on the basis that they are essential to the preservation of moral agency, is. Even if you disregard Nozick’s invisible hand account of the minimal state, I find it difficult to believe that you would disregard his account of the entitlement theory. Claiming certain functions of the state to be on a moral foothold would involve some kind of pattern in its distributive functions and it seems you would have to defend why this particular pattern would be acceptable over Nozick’s rejection of any kind of pattern.

            Let me know what you think.

          • Mark Friedman says:

            Very briefly: All I am trying to do here is supply a libertarian-friendly rationale for making would-be free riders on national defense pay their fair share. If they do so, they will permit other citizens to pay only their fair share, and not more. I don’t see any redistributive aspect, nor do I see any inconsistency with Nozick’s entitlement theory, which I enthusiastically endorse. I am afraid this is all the time I have to devote to this thread.

            PS: The tone of your first two comments was not well-received on this end.

  5. Jake Lanor says:

    This will be my final comment as well.

    Firstly, it’s regretful that my first two comments were considered to have an unwelcome tone. It certainly was not my intention.

    Second, by redistributive, it simply refers to the collection of income from individuals by the state for the state functions. Whether it be for the purposes of fairplay or any reason your principle of fairness would draw from, your justification seems to be a patterned principle (in this case based on fairness). If you so enthusiastically endorse Nozick’s entitlement theory, it will serve you well to explain why this particular patterned principle is acceptable, since Nozick argues for a historical, non-patterned approach in his principle of justice.

    I enjoyed this brief exchange. Best luck to you in your future endeavors and congratulations on the forthcoming publication of your book.

    • Mark Friedman says:

      In re-reading this thread, it does now appear to me that I was overly harsh, abrupt, and combative, for which I now belatedly apologize. I must have been having a bad day.

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