Chapter 4: Living in Society: Government As Association

Chapter 4: Living in Society: Government As Association

Chapter Objectives

After reading this chapter you should understand:

• 1. Several ways in which the diagram of associations resembles the periodic table of the chemical elements.

• 2. The three distinct meanings often expressed by the word law, and the three words we will use for these meanings.

• 3. How to distinguish private, compound, and public associations.

• 4. The basic distinctions among the six aspects of government: governmentas-bandit, legislator, trustee (I and II), and contractor (I and 11).

• 5. The sense in which government is basically an involuntary association.

• 6. Four functions performed by government.

• 7. The similarities and differences in outlook toward government of anarchists, social contract theorists, and Marxists.

• 8. The justification of government urged by the present text, and how support for the value of the "rule of law" can be found in a famous statement of Mao Tse-tung.

Key Terms

anarchy
government-as-contractor (bodres)
two-dimensional classification
associational isotope
govemment-as-legislator (laws)
types of association: private, compound, public
government-as-bandit (pseudolaws)
govemment-as-trustee
the "rule of law"
social contract theory

[I]f it is desirable for subgroups within a society to be organized in accordance with the principle of voluntary associations, it seems inconsistent entirely to deny the value of that principle for the organization of a given society as a whole.*

As we have seen, families are hard to analyze politically because they incorporate two types of association. In thinking about government, we encounter similar but more difficult problems. Analyzing government requires us to distinguish six types of association: To identify these six types we must extend our analysis into a new dimension, exploring how government acts as a different kind of association in differing circumstances.

CLASSIFYING ASSOCIATIONS

Any set of objects can be classified in more than one way. For example, the people in a room can be classified into groups in terms of the following characteristics: those who wear glasses and those who do not; male and female; political orientation: Democrat, Republican, Independent, Libertarian, Socialist, and so forth; income per year; height. It is clear that classifying associations as involuntary, trusts, or voluntary does not begin to exhaust the possibilities; nor need we assume that only one approach to classifying associations is important or useful. We shall now examine new ways to make these classifications.

Long-Term or Short-Term

An association may last only for a moment. When we buy something from a vending machine, our association with its proprietor is fleeting. We consent to an exchange by inserting coins and pushing appropriate buttons. The proprietor has consented by programming the machine to respond in certain ways to our initiatives. After we have taken our action and the machine-as-agent for the proprietor has taken its action, there is no continuing action and no continuing association. There are continuing consequences of the brief association, however; we have less money and more of something else, and the proprietor has more money and less inventory.

Other associations may be permanent, or at least as permanent as human mortality permits. Such associations are literally, in the words of the marriage ceremony, "till death us do part." If the association is also an organization, it could theoretically last forever.

How Associations Are Ended. Between these extremes many associations continue for a limited time. An involuntary association may be ended by the person who unilaterally established it, or his victim may escape. Trusts may end when their beneficiary becomes old enough to make his own decisions. Voluntary associations end according to rules established, implicitly or explicitly, when their parties consented to establish them. In the absence of specific agreements or contexts implying otherwise, voluntary associations can be ended by unilateral decision of any one party. The normal employment relationship, accordingly, can be ended either by the employee's unilateral resignation or by the employer's equally unilateral dismissal.

Other voluntary associations can end only by their parties' mutual consent. A valid contract for exchanging goods or services, for example, cannot be rescinded by buyer alone or seller alone, except under certain circumstances specified by law. However, one party may agree to cancel a contract at the other's request even when the law does not require this.

Sometimes the terms of a voluntary association may allow one party, but not the other, to pull out unilaterally. Thus a federal judge or a tenured college professor can resign, but his employer cannot dismiss him without at least going through complicated impeachment or tenure-breaking procedures. Arrangements leaving employees free to quit but protecting them from being fired may appear ideal to workers and may even appeal to some employers. A college president may find it easier to argue for academic freedom, and for faculty tenure as a means to this end, than to defend the individual merits of professors who come under public attack.

Some voluntary associations cannot be dissolved even by consent of both parties. The classical example is the husband- wife association; to protect the interests of any children, government's consent is also required. At the other extreme, some voluntary associations may also be ended without either party's consent. One of the parties may die or be made unavailable by an involuntary association created by action of a third party. During military conscription, a worker can be removed from a job which he prefers to keep and from which the employer has no desire to fire him.

Gemeinschaft or Gesellschaft

Human associations may take place in the context of basic Gemeinschaft or Gesellschaft relationships between the parties. All six types of association constituting or involving government are, as we shall see, Gesellschaft: People generally regard them as means to other, more important, ends, rather than finding them intrinsically important.

Private or Public

Associations are also commonly classified as public or private. But modern conditions have made this simple dichotomy nearly useless and we must convert it into a trichotomy. We will call "private" any association with both of the following characteristics:

1. None of its parties is a government
2. The association itself is not a government

Governments, hence, are not private, nor is any association between one government and another private. But the association between husband and wife is private because neither of them is a government (1) and their marriage does not constitute a government (2).

Associations with any one of the following three characteristics we will call "public":

1. If the association is an organization that imposes sanctions on people who have violated general rules of action laid down in advance (that is, if it is a government)
2. If the association is between a government and the public (all individuals subject to its jurisdiction)
3. If all of the parties to the association are governments

The United States government qualifies as public under (1). Some of its laws are general rules of action in the sense that they apply to anyone who takes the prohibited action. And the available punishments--deprivations of "life," "liberty," or "property"-- are clearly sanctions. The United Nations, on the other hand, qualifies as public under (3) even though it is not a government. Its Charter is a multilateral treaty or contract between a number of governments.

Problems with an unrefined private/public classification emerge when we consider associations in which one party is a government and one is an individual or private association. The U.S. government may purchase jet fighters from a private corporation or hire an individual to work for the Department of Justice. The resulting association is not private; since one of its parties is a government, it violates (1) in the definition of a private association. But the association is also, as the definitions stand, not public; although one of its parties is a government, the association is not a government. And the other party--say the Boeing Corporation--is neither the public nor another government.

There are only three alternatives here. First, we can change our definition of public or private to remove this example from limbo. Second, we can define a third category of association, in addition to public and private, into which the awkward example fits. Or third, we can abandon the private/public distinction and make no further use of these categories.

Abandoning these terms would be very costly. They have generally understood meanings and point to a useful distinction. The usual solution is to expand the definition of "public" so the association between Boeing and the U.S. government falls within that category. The reasoning here is: the U.S. government is "public"; it is a party to the association with Boeing; therefore that association is public. This logic sounds plausible until we apply it the other way around: Boeing is a private association; it is a party to the association with the U.S. government; therefore this association between the two is private.

The same logic produces two conflicting answers: the association between the U.S. and Boeing is both private and public! Only by assuming that "public is dominant" can we get the necessary single answer. But there are strong reasons not to make this assumption. Its implication that politics is fundamentally important in human life must be rejected by objective observers.

So we are left with the second option, which has never been methodically explored: define a third category of associations that includes all which are neither public nor private. Such associations--defined as one in which at least one party is a government and at least one is not --can be called "compound." The contract between the U.S. government and Boeing thus creates a compound association.

A Two-Dimensional Classification of Associations

We have examined several criteria for classifying associations, but there is no reason why only one classification can be used at a time. Two-dimensional classifications are in fact quite common. For example, locations on the earth's surface are described in terms of two numbers, one representing classification by latitude and one indicating classification by longitude. The roomful of people mentioned earlier can also be grouped on the basis of more than one consideration. For example, its individuals can be classified both in terms of gender and in terms of whether they are wearing glasses. Four categories of people are thus created. It is always possible, of course, that no members of a possible subgroup may be found in a particular population we are classifying. For example, only bespectacled males may be present, so that in mathematical terms the category "males not wearing glasses" would be the "empty set."

A famous scientific example of a two-dimensional classification is the periodic table of the chemical elements. First put forward by the Russian scientist Dmitri Mendelyeev, the initial two dimensions in the periodic table were physical properties and ranges of atomic weights. This table produced one of the great breakthroughs in human understanding of the physical universe: Data collected in terms of categories suggested by the table allowed systematic analysis of basic chemical reactions and even suggested the existence of new elements that were, in fact, then discovered. This textbook is based on the premise that the same kind of breakthrough is now possible in studying human associations.

The Diagram of Associations

The basic system of concepts employed in this textbook rests upon a two-dimensional classification of associations. The vertical dimension of this classification incorporates the distinction between private, compound, and public associations established above. The horizontal dimension incorporates the distinction between involuntary, trust, and voluntary associations introduced in Chapter 3. Just as we get four types of people when we combine two dichotomies, so we get nine types of association when we combine two trichotomies. For example, we have a private-involuntary association (Type 1) when sanctions are unilaterally imposed by a nongovernment on a nongovernment.

              Involuntary       Trusts          Voluntary
          _________________________________________________
          |               |             |                 |
          |               |             |                 |
 Private  | 1.robber-vict.| 2.parents-  |  3.husband-wife |
          |               |    children |                 |
          |_______________|_____________|_________________|
          |               |             |                 |
 Compound |   pseudolaws  |             |      bodres     |
          | 4.Govt-as-    | 5.Govt-as   |  6.Govt-as-     |
          |     bandit    |    trustee I|     contractor I|
          |_______________|_____________|_________________|
 Public   |               |             |                 |
          |     laws      |             |      bodres     |
          | 7.Govt-as-    | 8.Govt-as   |  9.Govt-as-     |
          |    legislator |   trustee II|    contractor II|
          |_______________|_____________|_________________|

Two associations classified into the same compartment on this diagram are not necessarily the same in all respects any more than two glasses-wearing males are identical. In chemistry the periodic table categories generally contain several isotopes, atoms chemically the same but with different atomic weights. Like all classification systems, the diagram of associations concentrates on some similarities and differences and ignores others.

Associations of One Type May Differ. One possible difference between two associations of the same type lies in their direction. An association's direction depends on which party acts and which sustains changed satisfaction. For example, a cornpound-involuntary association can be produced two ways. First, a government can select a particular non-governmental party and impose sanctions on it. A bill of attainder falls into this category: Congress passes an act naming a particular person--say the current ambassador to France--requiring that he be deprived of life, liberty, or property without any judicial ado. (Incidentally, we might recall that bills of attainder are prohibited by the Constitution, Article 1, Sections 9 and 10.) Second, a non-government can impose sanctions on a government. For example, terrorists may kidnap someone or hijack an airliner and threaten to kill hostages unless a government releases their allies from jail. This compound-involuntary association is opposite in direction to the Bill of Attainder, because here the non-government is the actor. The Bill of Attainder and the political hijacking are associational isotopes.

Associations of Different Types May Share Characteristics. Examples of involuntary associations, trusts, and voluntary associations in the previous chapter were mainly private. The example of a dramatic involuntary association--robber-victim-- has strong connotations of being private. Most robbers and most victims are not governments, though of course governments can and sometimes do play both of these roles. Likewise, in America our example of a subtle involuntary association--air-pollution-- generally evokes images of private polluters. Again, this is not inherent. In fact, considerable pollution is produced by government facilities, and this has been harder to control than that coming from private sources. (See, for example, the U.S. Supreme Court's decision in Hancock v. Train exempting federal facilities from obtaining pollution permits required by a Kentucky law which had been passed to comply with federal clean air standards. 426 U.S. 167.) Countries like the U.S.S.R. and China where private enterprise is illegal have extremely serious pollution problems. Footnote 1

Our previous example of small-scale voluntary associations- those between husband and wife-was obviously private. In America, corporations--our example of large scale voluntary associations--are also ordinarily private, although governmental corporations deserve more attention than the prevailing political paradigm gives them. Likewise, the parent-child relationship, our chief example of a trust, is private.

Thus, we have already considered examples of three out of nine types of association. These are associations that are not governments and to which government is not a party. Of course, each of the parties to a private association is subject to a government and regulated by a government. For reasons discussed later, government is inevitable; all actions and all other associations therefore take place in the context of a government. But the fact that each party's actions are subject to government regulation does not make government itself a party to every association that they enter into. We are using "party" as it is used in the language contracts. The "party of the first part" agrees to sell something to the "party of the second part." Both are subject to law, but unless the party of the first part or the party of the second part is a government, government is not referred to as a party to the agreement.

If "private" were defined to refer to associations in which none of the parties had anything to do with a government, then of course the concept would be useless, inherently pointing to the empty set. We should neither eviscerate nor abandon a term whose common meaning approximates a definition to which we would want to attach some word.

THE SIX FACES OF GOVERNMENT

Politicians are often called "two faced" because they try to be all things to all people. There is an old joke about a candidate who was asked about his position on a controversial issue. "Well," he said, "some of my friends are for this proposal, and some of them are against it. And me? I am for my friends!" Government, however, is even harder than politicians to understand. It is not just two-faced but six-faced, like the surfaces of a cube. There are six aspects of government with which we may come into contact, represented by the three types of compound associations and the three types of public associations in our diagram. The general failure of political analysts to sort out the six aspects of government has produced great confusion. Conclusions about "government" made in one context may have little relevance in the other five. Constitutional rules, for example, may be appropriate restrictions on one aspect of government but totally inappropriate in others. Sophisticated thinking about politics requires us to stop thinking that "government" means only one thing. Even a simple word like "door" can point to two widely different concepts, the opening in a wall through which one can go out, and the object used to block up such an opening so one cannot go through. Is it any wonder that a more abstract term, "government," might give us a lot of trouble?

Government as an Organization

An organization is an association whose individual parties occupy continuing roles or offices that exist independently of their immediate occupants. Every organization can therefore be examined at two levels: as a set of relations among offices, and as a set of interactions among officers. Government is clearly an organization. Its officers play roles that are more or less continuing ones, and there are enduring patterns of interactions among their offices. Already, we have noted the distinction between president and presidency.

Governments cannot act or speak for themselves, since actions and words can only come from individuals. All governmental actions are therefore taken by individuals acting for the organization. The governmental sword is brandished, the governmental purse is opened, and the governmental pen is employed by individuals. There is always some danger that individual officers may use their official powers for personal purposes. The policeman bribed not to arrest a speeder and the government purchasing agent dealing with firms in which he has an interest are considered typical examples of corruption. Since corruption is a basic political concept, the distinction between man and office is an essential part of modern government. As Max Weber noted:

In principle, the modern organization of the civil service separates the bureau from the private domicile of the official, and, in general, bureaucracy segregates official activity as something distinct from the sphere of private life. Public monies and equipment are divorced from the private property of the official. This condition is everywhere the product of a long development. Nowadays, it is found in public as well as in private enterprises. Footnote 2

Some of Richard Nixon's problems resulted from failure to distinguish between his individual capacity as owner of Casa Pacifica in San Clemente, California, and his official capacity as president. The government paid for expensive improvements on Nixon's house. Nixon's claims that the improvements were made for security purposes and hence were legitimate government expenditures did not convince everyone. He only defused the resulting criticism by promising to will the property to the government.

Government as an Involuntary Association

The importance of government sanctions is emphasized by the United States Constitution, which twice prohibits government from depriving anybody of "life, liberty, or property" without "due process" of law. Sanctions are found only in involuntary associations, so when wielded by government they must produce either a cornpound-involuntary (Type 4) or a public-involuntary (Type 7) association. Types 2, 3, 5, 6, 8, and 9 cannot be produced by government sanctions because trusts and voluntary associations involve only inducements. And government sanctions cannot produce private-involuntary associations (Type 1) because a government cannot be a party to these.

Although government sanctions can produce both Type 4 and Type 7 associations, the differences between these are fundamental. Sanctions may be brandished either against people in general or against selected people. A government may threaten a given sanction against anyone deliberately taking the life of another, and another against anyone failing to pay 26% of his income to the Internal Revenue Service. In these cases government is not selecting particular people to threaten with sanctions. The threat applies to anyone who violates the rule. Specific individuals against whom sanctions are actually applied are not singled out by government, but by their own actions. Government merely draws a line and proclaims that it will do certain things to those who step across it; each individual is free to refrain from crossing the line and, hence, to remain in the category of people against whom the government does not apply sanctions.

What is A Law? When government threatens sanctions against those who act in a certain way, we will call its actions laws. A law is a general rule of action enforceable by sanctions. The government action of notifying people that it will impose a sanction against those taking certain action is legislation. Laws are made and enforced by government-as-legislator, and this aspect of government clearly produces public-involuntary (Type 7) associations. The associations are involuntary because they involve sanctions or threatened sanctions; they are public because the sanctions are threatened, not against selected persons, but against "those who. . . ."

Government also frequently imposes sanctions on selected individuals. For example, the Nazi regime operated a large- scale extermination campaign against Jews in Germany and German- occupied countries during World War II. The actions of the German government against the Jews must be considered sanctions; hence we define the association between the German government and the Jews as involuntary. Since the sanctions did not apply to everyone, or even to everyone who acted in certain ways, the associations are considered compound rather than public.

What Is A Pseudo-Law? Although the government decrees creating compound-involuntary associations are often called laws, they are very different from laws as we have defined them. Separate terms for these two things can emphasize the distinction and help us avoid confusing them. Accordingly, we will call those government decrees imposing or threatening sanctions other than against people violating general rules of action pseudo-laws, or "laws." Employing the same word indicates that these "laws" have something in common with laws, the sanction or threatened sanction. Adding the term pseudo or the quotation marks remind us that there are also important differences.

Pseudo laws, creating compound-involuntary associations, are enacted by government-as-bandit, a term suggested by St. Augustine's famous observation: "Justice being taken away, then, what are kingdoms but great robberies?" [Footnote 3] The only difference between a compound-involuntary association and a private-involuntary one is that government is a party to the former. In both, individuals are arbitrarily singled out and sanctions imposed or threatened against them. If anything, government-as-bandit is less tolerable than private robbers, for it wields the resources of the whole community and one cannot seek government protection from it.

Pseudo-laws are not found only under totalitarian dictatorships. Military conscription, a prominent part of the American scene on and off ever since the Civil War, has never operated by general rules of action. Sanctions have not been imposed upon anyone not joining the army, but only on people who are singled out and told to join. Excluded from those to join have been women, old men, very young men, ministers, college students, men in "critical" occupations, men whose number did not come up in a lottery, and so forth.

Much of the current American economy is regulated by government-as-bandit.

Typical is the Supreme Court's decision in New Orleans v. Dukes. [Footnote 4] A city ordinance required people wishing to vend food in the streets of the New Orleans French Quarter to obtain a license. It also prohibited giving licenses to people who had not already been in that business there for at least eight years. A woman who had been in business only two years was thus deprived of liberty and run out of business. She had violated no law, but the Supreme Court upheld the constitutionality of the "law."

Government As A Voluntary Association

The organization called government also confers inducements. Hence it can be a party to voluntary associations (mutual consent to the exchange or transfer of inducements) and to trusts (inducements conferred unilaterally). We will call these aspects of government that enter into voluntary associations government-as-contractor. The other party may be either a non- government (Type 6) or another government (Type 9).

Government As Contractor I. Government-as-contractor I enters voluntary associations with non-governmental parties, which may be individuals or associations. The relationship between government-as-contractor I and an individual employee of the Department of the Interior is a compound-voluntary association. It is compound because one party is a government and one is not; it is voluntary because it is established by mutual consent of the parties to the exchange of inducements. The inducement conferred by the worker on the government is the services he performs, say, as an accountant. The inducement conferred by the government on the worker is his salary. When government-as- contractor I buys jet bombers from a private corporation, the other party to the resulting compound-voluntary association is itself an association.

Government as Contractor, II. Government-as-contractor II enters voluntary associations with other governments. The two governments may be coequals, or they may have a superior- inferior arrangement. Treaties are examples of voluntary associations between coequal governments. The treaties may be bilateral, as in a treaty between the U.S. and Canada providing for joint construction of a gas pipeline from Alaska to the rest of the United States. Or they may be multilateral, as in the Treaty of Rome establishing the European Common Market, or the U.N. Charter.

Within the United States, public-voluntary associations often exist between two or more states. These parties are equal and independent of each other, but subject to the national government in Washington. The Constitution requires that such "interstate compacts" go into effect only with congressional consent. Neighboring states often agree to relieve people living in one state and working in the other from double state taxation. Thinly populated western states sometimes agree to grant "in-state" status to each other's professional school students. Students save the extra tuition otherwise paid by those from out-of-state; states save by not operating schools in all professional fields. Forestry is a specialty in the university of one state, dentistry in another. The Port of New York Authority was established by an interstate compact between New Jersey and New York.

Governments also enter into voluntary associations with governments inferior or superior to themselves in a formal power arrangement. Many federal dollars are given each year to state and local governments in the United States. Some of the money comes from special funds. The Highway Trust Fund, for example, is financed by gasoline taxes and pays 90 percent of the cost of building federally approved sections of the interstate highway network. Other grants come from the general U.S. treasury, but are given to lower units of government only for specific purposes such as building water purification plants or operating educational programs for disadvantaged children. Still other money in a general "revenue sharing" program can be spent as local authorities see fit.

Since the federal government has no constitutional duty to give money to anybody, it can make its grants-in-aid to lower units of government contingent on their doing certain things. For example, in the 1930s Congress enacted welfare legislation to cope with the Depression. Instead of administering the new programs itself, the federal government agreed to fund-partially- qualified state welfare agencies. This technique minimized conservative fears of a "bloated" federal bureaucracy and shifted part of the responsibility for financing the new programs to other levels of government. At the same time, however, Congress feared that federal money might increase the leverage of local politicians, who often lived by appointing people to lucrative government jobs in return for help at election time. Had the new programs been directly administered by the United States, there would have been no spoils problem. The federal government had implemented a merit civil service system beginning in 1883, partly in response to President James Garfield's assassination by a deranged would-be beneficiary of the federal spoils system. The central government, however, has no constitutional power to require state governments to adopt civil service reform. But it undeniably does have the power not to spend money. States were merely informed that unless organizations administering the new welfare programs were staffed by civil servants chosen for merit, no federal money would be given to them. Local politicians' desire for "free" money from Washington then produced amazing enthusiasm for state civil service reform, at least in the various welfare departments.

Since the 1930s the federal power of the purse has become increasingly powerful. Congress has enacted many rules requiring the federal government to withdraw from voluntary associations if the other party violates them. These rules are enacted by procedures which are generally identical to those for laws and pseudo-laws. Indeed, these rules are often called laws. But they are sufficiently different to deserve a name of their own. For reasons indicated below, we will call them bodres.

Bodres. Laws are enacted by government-as-legislator and enforced by the application of sanctions. "Laws," decreed by government-as-bandit, are also enforced by sanctions. Bodres are formulated by government-as-contractor and enforced by withdrawn inducements. The word "bodre" is an acronym based on the expression "board of directors' resolution." When Congress determines the terms on which and with whom the U.S. government is willing to enter a voluntary association, it is doing a job similar to that performed by the board of directors of any private corporation. Since there is nothing distinctively governmental about this function, it is confusing to refer to such decisions with a word which implies uniquely governmental power. Hence, we will use the term bodre here instead of law.

Bodres apply both to compound-voluntary and to public- voluntary associations. Examples of bodres applying to compound associations include portions of the Bacon Davis Act, the Hatch Act, and the Philadelphia Plan. The Bacon-Davis Act prohibits the federal government from making contracts with private firms paying their employees less than prevailing wages as determined by the Secretary of Labor for each occupation and region of the country. The Hatch Act prohibits the federal government from retaining civil servants who engage in certain types of politicking, including addressing a political rally or holding office in a political party. (Any law prohibiting such actions and enforced by sanctions would clearly violate the First Amendment; the Supreme Court, however, has twice upheld the Hatch Act, which is enforced by withdrawn inducements. [Footnote 5] Under the Philadelphia Plan the federal government contracts only with private construction firms that agree to hire at least a certain percentage of minority employees. The Plan is an effort to overcome racial discrimination by the powerful building trades unions, acquiesced in by employers.

Bodres applying to public associations include the Hickenlooper Amendment and the enactment producing the 55 miles per hour national speed limit. The Hickenlooper Amendment cuts off foreign aid to any country that nationalizes property owned by U.S. citizens without paying them fair compensation. It tries, via the power of the U.S. government purse, to extend the protection against uncompensated seizures provided by the Eminent Domain Clause of the Constitution. When President Nixon proposed a national speed limit during the 1973 Arab oil embargo, Congress lacked constitutional authority to enact a law requiring people to drive more slowly. The state governments had the power to enact such laws but were not disposed to do so. Acting on Nixon's proposal, Congress merely enacted a bodre cutting off all federal highway funds to any state which did not enact a law making the speed limit 55 or less. If any state had refused to comply, its action would not have been illegal; it would merely have been unbodaceous! But the states, sometimes with great reluctance, knuckled under unanimously-few local politicians are willing to climb off the federal gravy train.

Government As Trustee

Trusts are associations in which inducements are transferred unilaterally rather than by mutual consent. Government can be a party to two different types of trusts: compound and public. In a compound-trust, government acts as a trustee for particular individuals or associations. In a public-trust, government acts as a trustee for everyone.

Government as Trustee I. Government-as-trustee I enters into compound-trusts. It acts as residual trustee for children whose parents have abused their responsibilities as trustees or who are seeking a divorce. Parents who abuse their children to the extent that they convert their association from a private-trust to a private-involuntary association may find themselves dealing with government-as-trustee I. In extreme cases of "battered children," the government may take them away from their parents. If criminal sanctions are also imposed on the parents this is done by government-as-legislator, for government-as-trustee wields no sanctions.

Government-as-trustee I also presides over Indian reservations. Supreme Court decisions frequently speak of government's role as a trustee for Indians. Unfortunately there is no residual trustee in case government, abusing its responsibilities, converts its association with Indians into a compound-involuntary one. Given the opportunities for abuse, government trusteeship for identifiable groups of people should probably be regarded as a temporary means of cushioning cultural shock when people at vastly different stages of development come into contact.

Government as Trustee II. Government-as-trustee II enters into a public trust, acting on behalf of everyone. Unfortunately, there are no historical examples of government-as- trustee II. This face of government has yet to show itself. However the possibility of government-as-trustee for the public is indicated by the diagram of associations, just as the possibility of new chemical elements was suggested by the early periodic table. And we will see in due course that government- as-trustee II will probably be an intrinsic part of the solution to problems posed by the creation of property and by the necessity for and dangers of governmental regulation of the economy.

THE BASIC NATURE, FUNCTIONS, AND JUSTIFICATION OF GOVERNMENT

Our Relationship with Government

Our basic relationship with government is an involuntary association, and in this sense we are justified in saying that government is an involuntary association. Actually, as we have seen, people are associated with the organization called government in many different ways. Some of our associations with government are voluntary, others are trusts, and still others are involuntary. But the involuntary associations are fundamental.

Through involuntary associations, government obtains most of the resources enabling it to induce people into voluntary associations with it. The policeman is hired by government-as- contractor I; as an employee, his relationship with government is a compound-voluntary association. But government obtains the money used for his salary via the power of the sword. People who refuse to pay taxes are forcibly deprived of liberty or property, though not, in the current United States, of life.

The idea that government is basically an involuntary association is neither new nor generally rejected. True, social contract theorists have argued that government is a voluntary association, is as if it were a voluntary association, or ought to be a voluntary association. Social contract theory has been influential in America ever since the "Mayflower Compact." However, contract theorists have always foundered on the fact that not everybody subject to a government consents, or has consented, to be governed by it. A contract, like any other voluntary association, requires mutual consent of all the parties, not just a majority of them. But when government imposes sanctions it does not require unanimity. To hang a man in the U.S. requires unanimity of the jurors and judge but not the unanimity of all parties, which would include the defendant!

Various philosophies recognize that government is essentially an involuntary association. Mao Tse-tung, Chinese Communist leader, wrote that "All political power grows out of the barrel of a gun." Anarchists, assuming that all involuntary associations are bad and seeing that governments are involuntary associations, conclude that there should be no government. St. Augustine, quoted earlier, bears repeating: "Justice being taken away, then, what are kingdoms but great robberies?"

The Four Functions of Government

The belief that all involuntary associations are bad is hard to refute. For most people the general undesirability of private-involuntary associations (robber-victim, air polluter- victim) and of compound-involuntary ones (the Nazi extermination campaign against Jews, military conscription, arbitrary economic regulations) is implicit in the examples we have adduced. One is tempted to tidy things up and conclude that public-involuntary associations are bad too. Before jumping to rash conclusions, however, let us think briefly about four functions or services provided by government:

1. minimizing private sanctions
2. facilitating private-voluntary associations
3. allocating scarce natural resources
4. protecting citizens from other governments

Minimizing Private Sanctions. First, government protects us from private-involuntary associations. Through law, government attaches artificial side effects to private actions constituting such associations, thus making them less attractive options. Drunk driving carries the risk of accident, injury, property loss, and death. Government increases the risks by threatening fines, imprisonment, and license revocation. The existence of law presumes that people are less likely to commit murder if the side effect of such action will be the electric chair.

Law can also be regarded as a price system calculated to run private-involuntary associations off the "market" by making them too "expensive."

Of course, laws are not entirely successful. Sanctions provided for violators may be inadequate to discourage the prohibited action--mere "slaps on the wrist." If the chance that a sanction will actually be imposed is low, people may discount its severity by its very improbability. Indeed, increasing the required sanction for breaking a law may reduce the likelihood it will ever be imposed: electrocution deters no jaywalkers if juries refuse to convict flagrant violators because they find the punishment excessive.

No legal system can eliminate all crime. The only way to put a complete end to crime would be to repeal all laws. This "solution" does not have much appeal. Thus government's function is not to eliminate private-involuntary associations but to minimize them. While repealing all laws would be counterproductive, "decriminalizing" some actions may be desirable if costs of outlawing them outweigh the benefits. As St. Thomas Aquinas noted many centuries ago, it is impossible for government to outlaw all sins. Government should not spread its limited enforcement capabilities too thin, neglecting to enforce more important laws while prosecuting less important ones. "Decriminalization" is most frequently discussed in the context of personal drug use, sexual activity, and so forth, which supposedly concern only the "consenting adults" involved.

Facilitating Private-Voluntary Associations. A second function of government is to facilitate private-voluntary associations. A contract is a legally enforceable agreement, and government encourages private-voluntary associations chiefly through laws regarding contracts. Of course, not all private agreements are enforceable. A coed agreeing to go out on a date with her boyfriend, for example, cannot be compelled to do so by a court if she tries to back out. Nor will any court order her to pay money damages to her friend even if, relying on her company, he obtains theater tickets or rents an automobile. But the fact that some agreements are legally enforceable increases our options, as Gordon Tullock explains:

It is clear that situations in which making such an enforceable promise is desirable are fairly frequent. I wish to buy a house and do not have enough money to do so. Borrowing the money will improve my satisfaction, but in order to borrow I have to convince the lender that I will repay. Perhaps I can get away with an unenforceable promise, but for most people such loans are only possible if there is some mechanism to enforce the repayment. Footnote 6

Government not only makes enforceable agreements possible but it provides neutral judges to resolve disputes about such agreements. Some parties bypass the judge by jointly sending disputes to an arbitrator, but the courts are always available when less extreme measures fail. Without government, terms of voluntary associations would only be enforceable by the parties and their private associates, a messy and inefficient process at best. Government thus allows voluntary associations on a scale otherwise impossible. It is therefore no exaggeration to say that private enterprise rests on public foundations.

Allocating Natural Resources. The third function served by government is allocating scarce natural resources. This function can only become more important as population increases while raw materials-at best-remain constant. Once something is someone's property, the usual rules of contract can be used to determine whether it has been duly transferred to somebody else. But endless problems arise regarding how something becomes somebody's property to begin with. How do resources become the property of their first owner? The philosopher Pierre Joseph Proudhon answered this question with his famous aphorism: "Property is theft!" Somebody simply assumes ownership of the resources and it is his property as long as he can hang on to it. There are many terms for this process of creating ownership-"conquest," "squatting," "claiming," "staking out," and so forth. Nor are government claims to own property any different from private ones in this respect. A property right exists when government imposes sanctions on anyone except the owner who uses something without the owner's consent. But government-as-legislator can employ sanctions only against people violating general rules of action, and a general rule must apply to anybody without any exceptions. If a rule exempts government-as-contractor (the only aspect of government which can own things), then it does not threaten sanctions against "all those who" and cannot emanate from government-as-legislator. The Communist solution to the problem of property is therefore just as much an example of government-as-bandit as that generally employed in "Capitalist" countries.

The property problem as it stands to date can be summarized as follows: Government-as-legislator cannot own anything; it merely has "jurisdiction" to enforce laws in a certain area. And there is no way that government-as-legislator can make original allocations of property in accordance with general rules of action. Government-as-contractor can own things. But it is no more inherently the owner of given natural resources than General Motors is, or you are. Government-as-trustee I is trustee only for particular people or groups of people. Since determining which people shall own property is the problem here, not the solution, government-as-trustee I is no help. As we will see in a later chapter, government-as-trustee II could provide a very neat solution to the property issue. But government-as-trustee II is, so far, unheard of, and unknown solutions do not get implemented. Therefore, since government cannot avoid dealing with property rights, the job has been relegated historically to government-as-bandit, and property remains a major problem for every government on the planet.

Protecting Citizens from Other Governments. A fourth governmental function is to protect us from other governments. One part of this function, defense against external attacks, may not always be necessary. If there were a world government, external defense would be unnecessary. But the fourth function would remain, for it includes defense against potential governments that might try to replace a current one.

It is quite possible for two or more governments to rule over the same area at the same time. In the United States at least three governments usually legislate for any one place: the federal government, a state government, and a city or county government. Often, there are many more than three. During revolutions several governments generally exercise some control over the same area. In 1918 Russia was governed from February to October both by the Provisional Government under Alexander Kerensky and by the Petrograd Soviet, dominated by Lenin. Both centers of authority issued orders that were obeyed to some extent. Likewise, large areas of South Vietnam were under both the Saigon regime and that of the Vietcong during much of the time the United States was involved in the war there. In many villages it was said that Saigon ruled by day, the Vietcong by night.

Subjection to more than one government is tolerable, however, only if there is a clear pecking order among them, as in the United States. When one government makes an action illegal and another in the same place makes avoiding that action illegal, their subjects are damned if they do and if they don't. They cannot protect themselves against sanctions by obeying the law, for obeying one law requires violating the other. The Supremacy Clause of the U.S. Constitution is designed to avoid placing citizens in exactly this predicament:

This Constitution and the laws of the United States which shall be made in persuance thereof and all treaties made . . . under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. (Article VI, Section 2)

A government unable to protect its subjects from the sanctions of other or would-be governments is, to say the least, not a completely viable one.

Justification of Government

The dilemma faced by those seeking to justify existence of government can be summarized as follows: It is not unreasonable to assume that all involuntary associations are bad; and government is basically an involuntary association. There are, of course, many schools of thought. Some social contract theorists assert that government is, after all, a voluntary association. If true, this would simply make the assumption that all involuntary associations are bad irrelevant in evaluating government. But there is no historical evidence of an "original" contract, and even a hypothetical original contract could not bind later generations. As George Sabine notes:

Empirically the two things are different; no government actually asks its subjects to consent or fails to distinguish between political subjection and the obligation of contract. Footnote 7

Other social contract theorists, following Rousseau, argue that government ought to be a voluntary association. But this does not justify existing governments, which are not voluntary associations. Rousseau's ideas were highly revolutionary, for no government could meet his test and still remain government. None of the four governmental functions discussed here could be performed by an organization that enters only into voluntary associations.

Another possible way out of the dilemma is to capitulate and say that governments being bad, none should exist. The anarchists take this position, sometimes in the strongest possible way: there should be no government, period, now or ever. Says Benjamin Tucker:

Protection they look upon as a thing to be secured, as long as it is necessary, by voluntary association and cooperation for self-defence, or as a commodity to be purchased, like any other commodity, of those who offer the best article at the lowest price. Footnote 8

Classical Marxists also conclude that government--"the state"- -is unjustifiable. But they believe that it is neither desirable nor possible to get rid of it immediately. Rather, there must be a revolution in which the tables are turned and the previously exploited workers (proletariat) grab control of the state away from the capitalists (bourgeoisie). During a transitional period, the "dictatorship of the proletariat," the bourgeoisie is gradually "liquidated"--an ambiguous term which might mean anything from physical extermination of its members to their absorption into the ranks of the proletariat. Only when this process is finished is there no longer any need for the state, which can then "wither" away and disappear. The "justification" given by ruling Marxists for their government is therefore similar to defending a war on the grounds that it will end war: Their rule is said to be hastening the day when government will no longer be necessary. The more negative one's view of government, therefore, the more defensible is the government whose leaders claim they are seeking to destroy government.

Our analysis of associations suggests that governments are justifiable for reasons similar to those used by ruling Marxists. Rather than denying that involuntary associations are always bad or that governments are involuntary associations, we need merely recognize that a world without any involuntary associations is impossible. And this fact is not just temporary, as the Marxists would have it, but permanent. One function of government is to minimize private-involuntary associations. Without government, these private-involuntary associations would proliferate. Even Tucker's proposed "voluntary association" for securing protection would have to impose sanctions in order to protect its clients. If the worst that could be done to a robber were to boycott him (withdrawn inducements) and denounce him (power of pen), the price of robbery would not be high enough to deter it. Tucker's proposed organization would therefore produce involuntary associations, violating the anarchists' own rule that there should be no such associations in a decent society.

Anarchists, of course, might reply that these involuntary associations--produced in protecting people from robbers--are not as bad as those that would otherwise be produced by the robbers. But this argument lets the cat out of their philosophical bag. Once one admits that a society without any involuntary associations is impossible, and that all involuntary associations are not equally bad, then the premise that all involuntary associations are bad does not automatically lead to the conclusion that government is unjustifiable. Government may then be justified as a lesser evil than the private-involuntary associations that would otherwise multiply.

Government is justifiable only as a lesser evil! This conclusion may border on praising government with faint damnation, but we need not regard it as derogatory or unpatriotic. Lesser evils are rather standard political logic, for circumstances often exist where the best thing we can do is to do the least bad thing possible. When President Truman had to choose between ordering the use of the A-bomb or invading Japan to end World War II, neither alternative had many positive attractions. Both would cause large numbers of fatalities. Winston Churchill once said that "democracy is the worst form of government, except for all the others that have been tried from time to time." Madison, speaking of the "auxiliary precautions" built into the U.S. Constitution, admitted that

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. (Federalist Number 51)

Least of all can this conclusion be regarded as unpatriotic or subversive. There is no such thing as a subversive fact! And the conclusion applies not only to the American government but to all governments. It says nothing distinguishing one government from another, but points out a characteristic that all have in common.

Actually, justification of government may be time wasted on a question with no practical importance. It appears in fact that we have no choice in the matter and that government is inevitable. As Reinhold Niebuhr has indicated:

There is a peculiar pathos in the social contract theories of government, which dominate the thought of the seventeenth and eighteenth centuries. They all attribute a more absolute freedom to man in history than the obvious facts of history justify . . . . Footnote 9

H. S. Harris puts it this way:

[T]he political community does not . . . present to its members the aspect of a club that they need not join, and can always resign from. The State is the necessary association because it is the locus of those powers of compulsion without which no human group could maintain itself against the differing compulsions of natural impulses in its members. Footnote 10

The alternative to one government in a given region appears to be, not anarchy, but more than one government.

For more than 2000 years, philosophers have tried to find a satisfying positive justification for government. To the last man, they have failed. We can now see the reason for this failure: no such justification is even conceivable.

THE RULE OF LAW

What Can We Do About Government-As-Bandit?

If all political power grows out of the barrel of a gun, this can only heighten our concerns about how that power is organized and employed. Government is a system for keeping the lid on problems posed by private-involuntary associations. Government- as-bandit can be seen as a problem of the solution. Government- as-bandit imposes sanctions on people in an unprincipled way, and all of the arguments against private-involuntary associations apply even more strongly when the bandit is government itself. There can certainly be no assurance, when government can single out some people and impose sanctions on them, that the power will not be abused. Madison noted that "If angels were to govern men, neither external nor internal controls on government would be necessary." (Federalist Number 51) But angels do not govern. It is clear, therefore, that good government requires elimination of government-as-bandit.

To conclude that government-as-bandit must be eliminated in order to have good (i.e., the least bad possible) government implies a principle of good government: sanctions can be legitimately applied by government only for violations of laws. The only generally defensible involuntary associations are the public ones created by government-as-legislator. This idea, similar to one normally called "the rule of law," has inspired American government from its very beginnings and English government before that.

The United States Constitution and its official interpretations are the result of nearly two centuries of groping for certain ideals, including the rule of law. The resulting government has been a mixed success, as we will see. As we now proceed to concentrate directly upon specific American institutions, let us remember to ask ourselves: How could things be rearranged here to achieve the rule of law more completely?

SUMMARY

We have classified associations into nine basic types, six of which involve government. Government's roles as legislator, bandit, trustee, and contractor differ so radically that generalizations about "government" will usually be incorrect. Likewise, we have urged that the present ambiguous usage of the word law hinders systematic thinking. Sorting out three different meanings of law in terms of the categories provided by the diagram of associations, we have pinned each to a different word: laws--general rules of action enforceable by sanctions, pseudo-laws--sanctions imposed for any reason other than violation of a law, and bodres--statements of the terms on which and with whom government will enter into a voluntary association.

Government is basically an involuntary association. Even inducements persuading people to associate voluntarily with government-as-contractor are obtained at the point of a tax- collector's gun. This fact has upset social contract theorists, infuriated anarchists, and been exploited by Marxists promising to preside over a gradual "withering away" of the state. This chapter has argued that government is a lesser evil than the alternative: an unlimited flourishing of private-involuntary associations. But government must be limited in order to be tolerable. One such essential limit is the rule of law-- government must impose sanctions only on people duly convicted of violating a general rule of action laid down in advance.

QUESTIONS FOR DISCUSSION

• 1. Which kinds of power can create an association? What kinds of association can result from each kind of power?

• 2. What is the difference between a private-voluntary association and a compound-involuntary one? Could the same person be a party to both of these? Give an example to justify your answer.

• 3. What kind of association is:
  a. the Catholic Church
  b. the NAACP
  c. the Common Market
  d. the government of your state (basically)
  e. "organized crime"
  f. the American Football League
  g. a jury, members of which were forced to serve on pain of fine or imprisonment

• 4. According to the classifications of associations we have studied in this chapter, what kind of association is one to which all of the parties are compound associations-private or public? Does the answer to this question strike you as odd?

• 5. Describe an "isotope" of the association between parents and their young children.

• 6. Discuss the possible advantages and disadvantages of extending the term "bodres" to private voluntary associations.

• 7. Whose laws do you violate by driving faster than 55 miles per hour on U.S. highways?

• 8. What kinds of association are alluded to in the following doggerel commenting on graduated ("progressive") tax rates? What message is being conveyed?

Theft by government still is theft
And it matters not how much the victim has left.
Goodbye liberty, farewell rules;
Taxes which discriminate are dangerous tools.

• 9. James J. Kilpatrick, commenting on the Public Works Employment Act of 1977, said:

The law mandates racism, pure and simple. This is what it says: "No grant shall be made under this act for any local public works project unless the applicant gives satisfactory assurances to the secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprise." (Toledo Blade, January 1, 1978)

Is this a law? Is it racist? What are its advantages and disadvantages?

• 10. What inferences do you think you can draw about the author's political orientation from the statement that the Communist solution to the problem of property is just as much an example of government-as-bandit as that generally employed in capitalist countries? Are these inferences compatible with other evidence available to you?

• 11. ". . . [Ilt may very well be conceded that if the General Assembly of the Presbyterian Church should undertake to try one of its members for murder, and punish him with death or imprisonment, its sentence would be of no validity in a civil court or anywhere else." (U.S. Supreme Court in Watson v. Jones) We all recognize that this statement is true. But why should it be true?

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Footnotes

* H. S. Harris, in J. R. Pennock and J. W. Chapman (eds.) Nomos XI: Voluntary Associations (Chicago: Aldine-Atherton, 1969), p. 51.

1. See Time, January 29, 1973, p. 62; New York Times, August 23, 1970.

2. H. H. Gerth and C. Wright Mills, From Max Weber.- Essays in Sociology, New York: Oxford University Press, 1958, p. 197.

3. St. Augustine, City of God Bk. IV.

4. New Orleans v. Dukes, 427 U.S. 297 (1976).

5. United Public Workers v. Mitchell, 330 U.S. 75 (1947); U.S. Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973).

6. Gordon Tullock, The Logic of the Law, New York: Basic Books, 1971, p. 36.

7. George Sabine, A History of Political Theory, New York: Henry Holt & Co., 1950, p. 603.

8. Benjamin Tucker, "State Socialism and Libertarianism," in Irving L. Horowitz, ed., The Anarchists, New York: Dell, 1964, p. 181.

9. Reinhold Niebuhr (1941), p. 91.

10. H. S. Harris, in J. R. Pennock and J. W. Chapman (eds.) Voluntary Associations (Nomos XI), Chicago: Aldine-Atherton, 1969, P. 5 1.