The Problem of Security: Historicity of the State and “European Realism”
[The State] forbids private murder, but itself organizes murder on a colossal scale. It punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or alien.
—Albert Jay Nock, 1928, On Doing the Right Thing
LIBERTARIANISM AND THE STATE: A CRITICAL ASSESSMENT
Libertarianism has proved to be a force in almost every field of contemporary social debate. The doyens of social science can no longer dismiss the arguments produced by the leading scholars—dead and alive—of this intellectual tradition. Much of what is being discussed in this volume, being a specific libertarian contribution to the problem of “security,” is part of a broader dispute on crime, punishment, and the State that belongs also to orthodox (i.e., statist) social science.
However, certain tenets of libertarianism—which, after all, is also a moral doctrine—render the handling of such issues very different from what is common in mainstream social analysis. While the latter does not question the idea that the State must be the sole supplier of law and order, libertarians take quite the opposite road, as they are ready to explore any alternative to coercion and monopoly in the production of security.
Central to the libertarian framework, in fact, are the concepts of the “State” and the “free market” as two opposite poles of human experience. Rothbard nicely states this position in Power and Market: “On the market … there can be no such thing as exploitation. But … a conflict of interest [arises] … whenever the State or any other agency intervenes.… On the market all is harmony.”1
The market is the subject of thousands of publications of libertarian inclination—with Austrian economics as one of the most important traditions—and our understanding of free markets, competition, and their benefits to society and individuals has been increasing enormously, but when it comes to the other pole of the dichotomy, the State, libertarians seem to be less sophisticated.
It is our contention that one of the greatest mistakes of many libertarians has been to follow a simplistic scheme of power: to call “State” every form of political aggregation and to believe in the perennial nature of this human artifact. Commenting on a much-welcomed book dealing specifically with the modernity of the State, David Gordon, the semiofficial reviewer of the libertarian community, notices: “By ‘state,’ our author means something more limited than do contemporary libertarians (and Max Weber).”2 This general lack of perception of the State as a historically shaped institution is understandable in light of the fact that contemporary libertarianism has developed mostly in America, a country plagued only recently and often inadvertently by statehood.
Some views on the origins of the State, however, are bound to backfire against the general theory of libertarianism. If the State is nothing else than “political power,” if it has accompanied human communities since the beginning of history, how are we going to see the end of such a massive coercive apparatus? In other words, if the State is inherently part of the human experience, why should a defender of freedom bother to become libertarian? Ultimately, if the State is as old as mankind, then libertarianism is just another form of utopia, though of no criminal nature.
One of the central axioms of libertarianism is the idea that the same morality applies to every person, whether acting on behalf of a public apparatus or in his individual capacity. Society and individuals must be judged as a whole: if something is morally unacceptable, it should be so for everybody. In Human Action, Mises affirms that the most weighty revolt against reason can be found in the idea that “there is no such thing as a universally valid logic.”3 Mises calls this polylogism: “Marxian polylogism asserts that the logical structure of mind is different with the members of various social classes. Racial polylogism differs from Marxian polylogism only insofar as it ascribes to each race a peculiar logical structure of mind.”4 The rise of the State brought about a different kind of polylogism, whose paramount importance for the general theory escapes no one: the division between the mass of subjects and the elite of political rulers.
We can distinguish between three different concepts: politics, coercion, and State. Not all politics are coercive, and not all coercive political orders can be called “States.” Libertarian theory is destructive, not of politics qua politics, but of certain peculiar orders based on a monopoly of violence (or of “legitimate” force). The most relevant example of the latter is the political order that won preeminence in Europe during modern times, the one that we call the State. In fact, the moral separation between the rulers and the subjects is a by-product of the rise of modern politics, that is, the State. During modern times, the State has emerged because of many diverse and unique historical circumstances, but one single “moral” doctrine has been crucial for its materialization. It is the belief according to which the ruling class is legitimized to act by any means necessary, while the people at large are bound by a set of laws created by the rulers (as well as commonsense morality).
The State is indeed a very “peculiar institution,” having a uniqueness that must be appreciated from the historical point of view. It was in fact only during the rise of the State that the previously unheard-of idea of “raison d’etat” gained ground, both intellectually and practically. Although quite correctly the name of Niccolò Machiavelli is to be associated with such a break between politics and morality, the Florentine was only the first of several political theorists who worked to furnish the ruling class its morally invulnerable position. In particular, Giovanni Botero, in his 1589 book La Ragion di Stato, was the first to openly argue that, for the safety of the State, men may legitimately perform actions that would be considered crimes were they committed with other purposes or by people not empowered by such a noble institution.
During previous times, however brutal they may have been, the viciousness of a double morality—one limited to those acting in the name of the State and the other suitable for the general public—simply did not exist. For libertarians not to grasp this historical fact would be a mistake of great import. In fact, since the birthmark of modern politics (political modernity being synonymous with the State) is the double standard libertarians so explicitly fight against, they would be missing a chance to give a sound historical foundation to their own theory.
What gives libertarianism a great intellectual appeal, as well as a watertight foundation, is the very historicity of the State. It is useful to borrow the words of a historian, certainly not a libertarian, to grasp immediately the consequences of a clear, precise, and scientific perception of the State:
The State is not an eternal and unchanging element in human affairs. For most of its history, humanity got by (whether more happily or not) without a State. For all its universality in our times, the State is a contingent (and comparatively recent) historical development. Its predominance may also prove to be quite transitory. Once we have recognized that there were societies before the State, we may also want to consider the possibility that there could be societies after the State.5
The fortune of Marxism as an intellectual force relied heavily on the fact that the socialists rarely advanced a model society. Karl Marx devoted a mere fraction of his intellectual productivity to fantasizing about the “socialist ideal society,” and his followers focused rather on a never-ending critique of “capitalism.”6 In contrast, libertarians have concentrated much of their efforts toward envisioning a future society based on nonaggression, voluntary relations, property rights, and free-market exchanges, sometimes at the expense of reflections on strategy (how to get from here to there). As for the libertarian critique of existing restrictions on the free markets, we may rely on Austrian economics, or other traditions, depending on one’s tastes. But when it comes to the evaluation of the State, one has to rely on the past. It is, in fact, in the medieval political and juridical order that existed in Europe prior to the rise of the State that one could find suggestions for a libertarian future.
Before we briefly explain what we consider to be the sound interpretation of the origins of the State—the key to a realistic treatment of the problem of security—let us briefly review the all-too-fashionable schools that still command respect from academic quarters. In particular, two related approaches are unsatisfactory: the sociological and the anthropological views of the genesis of the State.
One should be very suspicious of anthropological studies of the birth of the State for various reasons. First, because although non-European cultures deserve all the scholarly attention they may get (at least as an antidote for many centuries of racism) anthropologists have a tendency to fall in love with the cultures they study and to make too much of them. We owe respect to every human being and his or her heritage. However, statements like the following—typical of a certain stream of cultural relativism—are quite unwarranted: “When one is reading descriptions of those who lived in ancient Buganda or ancient Polynesia, images of the Italian Renaissance or Athens in the fifth century B.C. come to mind.”7
But this could be considered a venial sin in light of what the anthropological school has to say about the hard issues. To Eli Sagan, “the state may be defined as that form of society in which nonkinship forms of social cohesion are as important as kinship forms.”8 In fact, “state building was the process of kingship triumphing over kinship.”9 While it seems difficult to grasp the different stages of institutional development from this vantage point, the complete absence of historical perception underlining such a postulate must be noted. It may be true that tribal and blood relations must be overcome in order to approach an institutionalized system of command. This simple truth, however, is unable to account for the complexity of modern juridical organizations.
Moreover, the timeless nature of the anthropological analysis could be helpful to comprehend some perennial features of human societies, but it proves futile when applied to transient, peculiarly European institutional realities such as the State. One of the pioneers of this tradition, James George Frazer, asserted:
The continuity of human development has been such that most, if not all, of the great institutions which still form the framework of civilized Society have their roots in savagery, and have been handed down to us in these later days through countless generations, assuming new outward forms in the process of transmission, but remaining in their inmost core substantially unchanged.10
Although rarely given full credit, the whole construction of the anthropological school follows the same line of reasoning drawn by Ludwig Gumplowicz and Max Weber a century ago.
Gumplowicz was one of the leading exponents of the sociological tradition. He gave the following account of the origins of the State:
The state is a social phenomenon consisting of social elements behaving according to social laws. The first step is the subjection of one social group by another and the establishment of sovereignty; and the sovereign body is always the less numerous. But numerical inferiority is supplemented by mental superiority and greater military discipline.11
One element of this definition, the anchorage to European realism (the idea that the disorganized mass will always be ruled by an organized elite), is still persuasive, but his portrayal of the human condition appears simplistic, ignoring largely the complexity of different institutional orders and political cultures. It seems to entail the existence of a process of subjugation going on since the beginnings of time. Let us notice, however, that Gumplowicz employs the word “sovereignty,” invented by Jean Bodin in 1576. The sociologists spoke of organizations, power politics, domination, and so on, but they actually had in mind the State, i.e., political modernity. Instead of projecting a semibarbaric and timeless condition on Western institutions (as the anthropologists do), the sociologists cast the State image on the hordes and tribes of all continents.
This is also the most important ambiguity of Max Weber. On one side, he is one of the authors who characterizes the State model in a totally unhistorical fashion; at the same time, however, he appears to be very much aware of the specifically modern character of State institutions. For Weber,
the basic functions of the “state” are: the enactment of law (legislative function); the protection of personal safety and public order (police); the protection of vested rights (administration of justice); the cultivation of hygienic, educational, social-welfare, and other cultural interests (the various branches of administration); and, last but not least, the organized armed protection against outside attack (military administration). These basic functions are either totally lacking under primitive conditions, or they lack any form of rational order. They are performed, instead, by amorphous ad hoc groups, or they are distributed among a variety of groups such as the household, the kinship group, the neighborhood association, the rural commune, and completely voluntary associations formed for some specific purpose.12
Weber tries to characterize the universal features of the State, but it becomes palpable that only some specific institutions can be traced back to such a political order, and that the family, the parental group, the union of the neighbors, the rural commune, and the like are not among such institutions.
It is true that Weber tries to connect State and coercion (we hold that every State involves coercion, but not every kind of coercion makes a State). However, Weber seems to be well aware of the genuinely modern nature of the State when he tries to depict its emergence:
The spread of pacification and the expansion of the market thus constitute a development which is accompanied, along parallel lines, by (1) that monopolization of legitimate violence by the political organization which finds its culmination in the modern concept of the state as the ultimate source of every kind of legitimacy of the use of physical force; and (2) that rationalization of the rules of its application which has come to culminate in the concept of the legitimate legal order.13
The book on the State that has probably had the most lasting impact on libertarians is Oppenheimer’s. Albert J. Nock and Murray Rothbard, arguably the most important libertarian thinkers of the last century, have taken directly from the German sociologist the famous dichotomy between economic means and political means.
Libertarians are usually talented—at least Rothbard was—in making use of an array of different thinkers of Marxist, socialist, collectivist persuasions for their own purposes. However, Oppenheimer is in such a chaotic web of intellectual traditions that, perhaps, he is of no use at all. He considered himself a “social liberal” and put himself in very good company:
Only a small fraction of social liberals, or of liberal socialists, believe in the evolution of a society without class dominion and class exploitation which shall guarantee to the individual, besides political, also economic liberty of movement, within of course the limitations of the economic means. That was the credo of the old social liberalism, of pre-Manchester days, enunciated by Quesnay and especially by Adam Smith, and again taken up in modern times by Henry George and Theodore Hertzka [sic].14
Nonetheless, the author of Der Staat must be judged for what he has to say on his topic:
The State, completely in its genesis, essentially and almost completely during the first stages of its existence, is a social institution, forced by a victorious group of men on a defeated group, with the sole purpose of regulating the dominion of the victorious group over the vanquished, and securing itself against revolt from within and attacks from abroad. Teleologically, this dominion had no other purpose than the economic exploitation of the vanquished by the victors.15
The claim is that the State came out of conquest and force. As appealing as this may sound for libertarians, this vision is off the mark. In another passage, Oppenheimer hints that the dawn of the State must be recognized in the division of labor— the simple fact that some people were endowed by nature with a warrior character and physical ability.
The peasants become accustomed, when danger threatens, to call on the herdsmen, whom they no longer regard as robbers and murders, but as protectors and saviors.… The herdsman has learned to “capitalize.”16
In other words, it was not only direct conquest but also failed assaults that gave birth to the State. The best defenders discovered that they could do nothing and be nurtured by the population until the next wave of assailants came by. The warriors were thus the soul of the rising State. Needless to say, to defend and protect other people is a perfectly legitimate function, and if some people are very good at it, they deserve all the idleness they may get. The birth of the State, in Oppenheimer’s enthusiastic conjecture, is contradictory: plunder (definitely illegitimate) on the one side and the division of labor (clearly legitimate) on the other.
Nation and State were born together and are indistinct in the German scholar’s imagination:
The moment when first the conqueror spared his victim in order permanently to exploit him in productive work, was of incomparable historical importance. It gave birth to nation and state, to right and the higher economics, with all the developments and ramifications which have grown and which will hereafter grow out of them.17
Oppenheimer is one of the leading sociologists to have paved the way for a fusionist socio-anthropological model.18 Countless quotations from Friedrich Ratzel add an exotic flavor to the book. We are thus brought into a world where social organizations of the Ovambo, Wahuma, and other primitive cultures should teach us something about the State and its specific features.
THE RISE OF THE SOVEREIGN STATE: THE BORDERS FOR LAW AND ORDER
The first myth one has to debunk in order to assess the relationship between the provision of law and order and the rise of the (modern) State is that this political institution is merely a natural and organic outgrowth of political power, as old as the history of mankind or of organized society. Actually, it would be wise to dispose of the qualifier “modern”: only the State is modern.19 Whether we see its cradle in the Italian system of States after the Peace of Lodi (1454), or in western Europe (Spain, France, and England) in the 1600s, one thing is clear: the State “gradually emerged in the course of the fifteenth and sixteenth centuries and found its first mature form in the seventeenth.”20
After a summary of the chief traits of the State—organization, sovereignty, coercive control of the population, centralization, etc.—Gianfranco Poggi affirms: “strictly speaking the adjective ‘modern’ is pleonastic. For the set of features listed above is not found in any large-scale political entities rather than those which began to develop in the early-modern phase of European history.”21
Oakeshott seemed to be conscious of this peculiarity of the State when he affirmed that
[t]he somewhat novel association of human beings which came to be called the states of modern Europe emerged slowly, prefigured in earlier European history, but not without some dramatic passages in their emergence … for the most part, the territories of modern states were newly delineated. They were the outcome of movements of consolidation in which local independencies were destroyed and movements of disintegration in which states emerged from the break-up of medieval realms and empires.22
The second myth we must dispose of is the belief, shared by most historians, that the rise of the State contributed to the general cause of human liberty. In other words, that it has been a “progressive factor” in the history of mankind. Instead, it must be seen as a revolution that upset the old order, granting privileges, immunities, and rents to some and obliterating them for the rest of society. As Charles Tilly put it,
the European State-makers engaged in the work of combining, consolidating, neutralizing, manipulating a tough, complicated, and well-set web of political relations.… They had to tear or dissolve large parts of the web, and to face furious resistance as they did so.23
The history of liberty is rather to be found in the attempts to restrain the powers of the State, from the fight to preserve “medieval freedoms” and community privileges, to the struggle against the concentrations of power in a given center (whether a king or a parliament).
Liberty, as well as law and order, was secured, and in some cases much better, at different stages of European history, when a monopoly of violence over a given territory was simply out of reach. Although we are primarily concerned here with the State provision of law and order, one must not forget that the self-governing communities of the Middle Ages, in northern Italy and central Europe, offer significant examples of a completely different way of guaranteeing peace and security.
In the golden age of communal liberty (which lasted in most parts of Europe until the sixteenth century, but in certain areas, like Switzerland, much longer), merchants and citizens formed their own statutes regulating passage, immigration, and exchange: in short everything related to peaceful and noncoercive self-government. During these times, there was no clear-cut definition of power over a given territory, as there were no borders in the modern sense. An institutionalized power always had an antagonistic counterpower claiming allegiance from the same subjects. The result was that every medieval command was actually nothing more than a claim, subject to be opposed and constrained by an institutional network of competing counterclaims.
In Freedom and the Law, Bruno Leoni stated that
an early medieval version of the principle, “no taxation without representation,” was intended as “no taxation without the consent of the individual taxed,” and we are told that in 1221, the Bishop of Winchester, “summoned to consent to a scutage tax, refused to pay, after the council had made the grant, on the ground that he dissented, and the Exchequer upheld his plea.” We know also from the German scholar, Gierke, that in the more or less “representative” assemblies held among German tribes according to Germanic law, “unanimity was requisite” although a minority could be compelled to give way.24
It was not only what has been simplistically called “medieval pluralism” that guaranteed the impossibility of any state-like organizations, but rather the forms of the juridical relations between individuals and rulers. In medieval society the lives and properties were not readily “accessible” to the king and nobles. As Charles H. McIlwain pointed out:
This property which a subject had of legal right in the integrity of his personal status, and the enjoyment of his lands and goods, was normally beyond the reach and control of the King.… At the opening of the fourteenth century John of Paris declared that neither Pope nor King could take a subject’s goods without his consent.25
It seems quite difficult to conceive of a State without the attributes of a State—that is, the possibility of disposing at free will over the lives and properties of its subordinates. Clearly, what was beyond the reach of king and nobles during the Middle Ages is now available to democratic majorities, and the whole “story” of the State is how we got from there to here.
Prior to the birth of the State, the predatory effects of political power on individuals were minimal (compared to other areas of the globe or to what happened later on the same continent), and in any case the citizens always retained their exit right. This right kept a check on political power and is singled out by many authors as one of the primary causes for the development of a “limited territorial predator” in the West.
Meanwhile, there was no single source of law and order: the production of security was never considered a distinct institutional affair, but rather a concern of the whole community. For several centuries, customs, traditions, and ancient Roman laws worked together in assuring a juridical order. Law in the Middle Ages was a way of resolving conflicts, but it was kept a more or less private business. There was no organic conception of the “social body,” and thus crime remained a private matter to be taken care of with well-defined rules. In other words, crime was never considered a social problem, a wound inflicted on the collective body. This, in turn, implied that the victims were the center of any lawsuit; redress was done from the point of view of the victims, never of a supposedly wounded collectivity. Even when feuds broke out, which was quite often, the families involved were asked to reestablish the public peace, but very seldom were the perpetrators of crimes punished once peace was restored.
In a peculiar sense, words, as crystallized ideas, have consequences: the medieval period was definitely over when, at the end of a long gestation, the word “State” was used in the modern sense by Niccolò Machiavelli. The Florentine asserted right at the beginning of his most famous work, The Prince: “All the states, all the dominions under whose authority men have lived in the past and live now have been and are either republics or principalities.”26 And the emergence, in political theory, of the cluster of ideas associated with the State is largely a Machiavellian legacy. As George Sabine put it:
Machiavelli more than any other political thinker created the meaning that has been attached to the state in modern political usage. Even the word itself, as the name of a sovereign political body, appears to have been made current in the modern languages largely by his writings.27
However, in Machiavelli we find little concern for the public peace, tranquility and security of the citizens. When the word security (sicurtà) is used, it is always in reference to the Prince’s possessions: “Among kingdoms which are well organized and governed, in our own time, is that of France: it possesses countless valuable institutions, on which the king’s freedom of action and security depend.”28 For our purposes, Machiavelli is important, because, although a “republican” at heart, he saw the king and the kingdom as the protagonists of a new era.
From the sixteenth century, it was left to monarchical absolutism to develop the notion of the organization of power through an artificial person, the State. The novelty of such a political creature was that the entire political reality was reshaped through offices, entities, and laws. The new body politic transcended individuals as well as sovereign. It did not represent anybody; it simply existed and was nurtured by myths produced by historians as well as politicians, first and foremost the myth of having always existed.29 As Luhmann has noted: “Following the proclamation of the sovereign State, especially in France during the second half of the sixteenth century, historians went to work. The present needs a past adaptable to it.”30
In this context of political modernity, the problem of law and order arose as a specific State problem. The first and foremost duty of the State toward its subjects became the provision of security. Or, to be less naïve,
the State has arrogated to itself a compulsory monopoly over police and military services, the provision of law, judicial decision-making, the mint and the power to create money, unused land (“the public domain”), streets and highways, rivers and coastal waters, and the means of delivering mail.… But, above all, the crucial monopoly is the State’s control of the use of violence: of the police and armed services, and of the courts—the locus of ultimate decision-making power in disputes over crimes and contracts.31
MODERN POLITICAL THINKERS: SOVEREIGNTY AS SECURITY
The rise of the centralized State apparatus that practically claimed a monopoly of the use of force within a given territory went hand in hand with the intellectual pursuit of describing such a novelty.
The plenitudo potestatis became the goal towards which the kings moved consciously. To reach it, a
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