So far in this book, we have developed a theory of liberty and property rights, and have outlined the legal code that would be necessary to defend those rights. What of government, the State? What is its proper role, if any?

Most people, including most political theorists, believe that once one concedes the importance, or even the vital necessity, of some particular activity of the State — such as the provision of a legal code — that one has ipso facto conceded the necessity of the State itself.

The State indeed performs many important and necessary functions: from provision of law to the supply of police and fire fighters, to building and maintaining the streets, to delivery of the mail. But this in no way demonstrates that only the State can perform such functions, or, indeed, that it performs them even passably well.

Suppose, for example, that there are many competing cantaloupe stores in a particular neighborhood. One of the cantaloupe dealers, Smith, then uses violence to drive all of his competitors out of the neighborhood; he has thereby employed violence to establish a coerced monopoly over the sale of cantaloupes in a given territorial area.

Does that mean that Smith's use of violence to establish and maintain his monopoly was essential to the provision of cantaloupes in the neighborhood? Certainly not, for there were existing competitors as well as potential rivals should Smith ever relax his use and threat of violence; moreover, economics demonstrates that Smith, as a coercive monopolist will tend to perform his service badly and inefficiently.

Protected from competition by the use of force, Smith can afford to provide his service in a costly and inefficient manner, since the consumers are deprived of any possible range of alternative choice.[1] Furthermore, should a group arise to call for the abolition of Smith's coercive monopoly there would be very few protesters with the temerity to accuse these "abolitionists" of wishing to deprive the consumers of their much desired cantaloupes.

And yet, the State is only our hypothetical Smith on a gigantic and all-encompassing scale. Throughout history groups of men calling themselves "the government" or "the State" have attempted — usually successfully — to gain a compulsory monopoly of the commanding heights of the economy and the society. In particular, 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.

Control of land and transportation has long been an excellent method of assuring overall control of a society; in many countries, highways began as a means of allowing the government to move its troops conveniently throughout its subject country. Control of the money supply is a way to assure the State an easy and rapid revenue, and the State makes sure that no private competitors are allowed to invade its self-arrogated monopoly of the power to counterfeit (i.e., create) new money. Monopoly of the postal service has long been a convenient method for the State to keep an eye on possibly unruly and subversive opposition to its rule.

In most historical epochs, the State has also kept a tight control over religion, usually cementing a comfortable, mutually supportive alliance with an Established Church: with the State granting the priests power and wealth, and the Church in turn teaching the subject population their divinely proclaimed duty to obey Caesar. But now that religion has lost much of its persuasive power in society, the State is often willing to let religion alone, and to concentrate on similar if looser alliances with more secular intellectuals. In either case, the State relies on control of the levers of propaganda to persuade its subjects to obey or even exalt their rulers.

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. Control of the police and the army is particularly important in enforcing and assuring all of the State's other powers, including the all-important power to extract its revenue by coercion.

For there is one crucially important power inherent in the nature of the State apparatus. All other persons and groups in society (except for acknowledged and sporadic criminals such as thieves and bank robbers) obtain their income voluntarily: either by selling goods and services to the consuming public, or by voluntary gift (e.g., membership in a club or association, bequest, or inheritance). Only the State obtains its revenue by coercion, by threatening dire penalties should the income not be forthcoming. That coercion is known as "taxation," although in less regularized epochs it was often known as "tribute." Taxation is theft, purely and simply even though it is theft on a grand and colossal scale which no acknowledged criminals could hope to match. It is a compulsory seizure of the property of the State's inhabitants, or subjects.

It would be an instructive exercise for the skeptical reader to try to frame a definition of taxation which does not also include theft. Like the robber, the State demands money at the equivalent of gunpoint; if the taxpayer refuses to pay his assets are seized by force, and if he should resist such depredation, he will be arrested or shot if he should continue to resist.

It is true that State apologists maintain that taxation is "really" voluntary; one simple but instructive refutation of this claim is to ponder what would happen if the government were to abolish taxation, and to confine itself to simple requests for voluntary contributions. Does anyone really believe that anything comparable to the current vast revenues of the State would continue to pour into its coffers? It is likely that even those theorists who claim that punishment never deters action would balk at such a claim. The great economist Joseph Schumpeter was correct when he acidly wrote that "the theory which construes taxes on the analogy of club dues or of the purchase of the services of, say, a doctor only proves how far removed this part of the social sciences is from scientific habits of mind."[2]

It has been recently maintained by economists that taxation is "really" voluntary because it is a method for everyone to make sure that everyone else pays for a unanimously desired project. Everyone in an area, for example, is assumed to desire the government to build a dam; but if A and B contribute voluntarily to the project, they cannot be sure that C and D will not "shirk" their similar responsibilities. Therefore, all of the individuals, A, B, C, D, etc., each of whom wish to contribute to building the dam, agree to coerce each other through taxation. Hence, the tax is not really coercion. There are, however, a great many flaws in this doctrine.

First is the inner contradiction between voluntarism and coercion; a coercion of all-against-all does not make any of this coercion "voluntary." Secondly, even if we assume for the moment that each individual would like to contribute to the dam, there is no way of assuring that the tax levied on each person is no more than he would be willing to pay voluntarily even if everyone else contributed. The government may levy $1000 on Jones even though he might have been willing to pay no more than $500. The point is that precisely because taxation is compulsory, there is no way to assure (as is done automatically on the free market) that the amount any person contributes is what he would "really" be willing to pay.

In the free society, a consumer who voluntarily buys a TV set for $200 demonstrates by his freely chosen action that the TV set is worth more to him than the $200 he surrenders; in short, he demonstrates that the $200 is a voluntary payment. Or, a club member in the free society, by paying annual dues of $200, demonstrates that he considers the benefits of club membership worth at least $200. But, in the case of taxation, a man's surrender to the threat of coercion demonstrates no voluntary preference whatsoever for any alleged benefits he receives.

Thirdly, the argument proves far too much. For the supply of any service, not only dams, can be expanded by the use of the tax-financing arm. Suppose, for example, that the Catholic Church were established in a country through taxation; the Catholic Church would undoubtedly be larger than if it relied on voluntary contributions; but can it therefore be argued that such Establishment is "really" voluntary because everyone wants to coerce everyone else into paying into the Church, in order to make sure that no one shirks this "duty"?

And fourthly, the argument is simply a mystical one. How can anyone know that everyone is "really" paying his taxes voluntarily on the strength of this sophistical argument? What of those people — environmentalists, say — who are opposed to dams per se? Is their payment "really" voluntary? Would the coerced payment of taxes to a Catholic Church by Protestants or atheists also be "voluntary"? And what of the growing body of libertarians in our society, who oppose all action by the government on principle? In what way can this argument hold that their tax payments are "really voluntary"? In fact, the existence of at least one libertarian or anarchist in a country is enough by itself to demolish the "really voluntary" argument for taxation.

It is also contended that, in democratic governments, the act of voting makes the government and all its works and powers truly "voluntary." Again, there are many fallacies with this popular argument. In the first place, even if the majority of the public specifically endorsed each and every particular act of the government, this would simply be majority tyranny rather than a voluntary act undergone by every person in the country.

Murder is murder, theft is theft, whether undertaken by one man against another, or by a group, or even by the majority of people within a given territorial area. The fact that a majority might support or condone an act of theft does not diminish the criminal essence of the act or its grave injustice. Otherwise, we would have to say, for example, that any Jews murdered by the democratically elected Nazi government were not murdered, but only "voluntarily committed suicide" — surely, the grotesque but logical implication of the "democracy as voluntary" doctrine.

Secondly, in a republic as contrasted to a direct democracy, people vote not for specific measures but for "representatives" in a package deal; the representatives then wreak their will for a fixed length of time. In no legal sense, of course, are they truly "representatives" since, in a free society, the principal hires his agent or representative individually and can fire him at will. As the great anarchist political theorist and constitutional lawyer, Lysander Spooner, wrote:

they [the elected government officials] are neither our servants, agents, attorneys, nor representatives … [for] we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody.[3]

Furthermore, even on its own terms, voting can hardly establish "majority" rule, much less of voluntary endorsement of government. In the United States, for example, less than 40 percent of eligible voters bother to vote at all; of these, 21 percent may vote for one candidate and 19 percent for another. Twenty-one percent scarcely establishes even majority rule, much less the voluntary consent of all. (In one sense, and quite apart from democracy or voting, the "majority" always supports any existing government; this will be treated below.)

And finally how is it that taxes are levied on one and all, regardless of whether they voted or not, or, more particularly, whether they voted for the winning candidate? How can either nonvoting or voting for the loser indicate any sort of endorsement of the actions of the elected government?

Neither does voting establish any sort of voluntary consent even by the voters themselves to the government. As Spooner trenchantly pointed out:

In truth, in the case of individuals their actual voting is not to be taken as proof of consent…. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money renders service, and foregoes the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he uses the ballot, he may become a master, if he does not use it, he must become a slave. And he has no other alternative than these two. In self-defense, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man attempts to take the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot — which is a mere substitute for a bullet — because, as his only chance of self-preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers….

Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot would use it, if they could see any chance of meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to.[4]

If, then, taxation is compulsory, and is therefore indistinguishable from theft, it follows that the State, which subsists on taxation, is a vast criminal organization far more formidable and successful than any "private" Mafia in history. Furthermore, it should be considered criminal not only according to the theory of crime and property rights as set forth in this book, but even according to the common apprehension of mankind, which always considers theft to be a crime.

As we have seen above, the nineteenth-century German sociologist Franz Oppenheimer put the matter succinctly when he pointed out that there are two and only two ways of attaining wealth in society:

1. by production and voluntary exchange with others — the method of the free market; and
2. by violent expropriation of the wealth produced by others.

The latter is the method of violence and theft. The former benefits all parties involved; the latter parasitically benefits the looting group or class at the expense of the looted. Oppenheimer trenchantly termed the former method of obtaining wealth, "the economic means," and the latter "the political means." Oppenheimer then went on brilliantly to define the State as "the organization of the political means."[5]

Nowhere has the essence of the State as a criminal organization been put as forcefully or as brilliantly as in this passage from Lysander Spooner:

It is true that the theory of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other….

But this theory of our government is wholly different from the practical fact. The fact is that the government, like a highwayman, says to a man: "Your money, or your life." And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a "protector," and that he takes men's money against their will, merely to enable him to "protect" those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful "sovereign," on account of the "protection" he affords you. He does not keep "protecting" you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.[6]

It is instructive to inquire why it is that the State, in contrast to the highwayman, invariably surrounds itself with an ideology of legitimacy, why it must indulge in all the hypocrisies that Spooner outlines. The reason is that the highwayman is not a visible, permanent, legal, or legitimate member of society, let alone a member with exalted status. He is always on the run from his victims or from the State itself. But the State, in contrast to a band of highwaymen, is not considered a criminal organization; on the contrary, its minions have generally held the positions of highest status in society. It is a status that allows the State to feed off its victims while making at least most of them support, or at least be resigned to, this exploitative process.

In fact, it is precisely the function of the State's ideological minions and allies to explain to the public that the Emperor does indeed have a fine set of clothes. In brief, the ideologists must explain that, while theft by one or more persons or groups is bad and criminal, that when the State engages in such acts, it is not theft but the legitimate and even sanctified act called "taxation." The ideologists must explain that murder by one or more persons or groups is bad and must be punished, but that when the State kills it is not murder but an exalted act known as "war" or "repression of internal subversion." They must explain that while kidnapping or slavery is bad and must be outlawed when done by private individuals or groups, that when the State commits such acts it is not kidnapping or slavery but "conscription" — an act necessary to the public weal and even to the requirements of morality itself. The function of the statist ideologists is to weave the false set of Emperor's clothes, to convince the public of a massive double standard: that when the State commits the gravest of high crimes it is really not doing so, but doing something else that is necessary, proper, vital, and even — in former ages — by divine command. The age-old success of the ideologists of the State is perhaps the most gigantic hoax in the history of mankind.

Ideology has always been vital to the continued existence of the State, as attested by the systematic use of ideology since the ancient Oriental empires. The specific content of the ideology has, of course, changed over time, in accordance with changing conditions and cultures. In the Oriental despotisms, the Emperor was often held by the Church to be himself divine; in our more secular age, the argument runs more to "the public good" and the "general welfare." But the purpose is always the same: to convince the public that what the State does is not, as one might think, crime on a gigantic scale, but something necessary and vital that must be supported and obeyed.

The reason that ideology is so vital to the State is that it always rests, in essence, on the support of the majority of the public. This support obtains whether the State is a "democracy," a dictatorship, or an absolute monarchy. For the support rests in the willingness of the majority (not, to repeat, of every individual) to go along with the system: to pay the taxes, to go without much complaint to fight the State's wars, to obey the State's rules and decrees. This support need not be active enthusiasm to be effective; it can just as well be passive resignation. But support there must be. For if the bulk of the public were really convinced of the illegitimacy of the State, if it were convinced that the State is nothing more nor less than a bandit gang writ large, then the State would soon collapse to take on no more status or breadth of existence than another Mafia gang. Hence the necessity of the State's employment of ideologists; and hence the necessity of the State's age-old alliance with the Court Intellectuals who weave the apologia for State rule.

The first modern political theorist who saw that all States rest on majority opinion was the sixteenth-century libertarian French writer, Etienne de la Boetie. In his Discourse on Voluntary Servitude, de la Boetie saw that the tyrannical State is always a minority of the population, and that therefore its continued despotic rule must rest on its legitimacy in the eyes of the exploited majority, on what would later come to be called "the engineering of consent." Two hundred years later, David Hume — though scarcely a libertarian — set forth a similar analysis.[7]

The counter-argument that, with modern weapons, a minority force can permanently cow a hostile majority ignores the fact that these weapons can be held by the majority and that the armed force of the minority can mutiny or defect to the side of the populace. Hence, the permanent need for persuasive ideology has always led the State to bring into its rubric the nation's opinion-molding intellectuals. In former days, the intellectuals were invariably the priests, and hence, as we have pointed out, the age-old alliance between Church and State, Throne and Altar. Nowadays, "scientific" and "value-free" economists and "national security managers," among others, perform a similar ideological function in behalf of State power.

Particularly important in the modern world — now that an Established Church is often no longer feasible — is for the State to assume control over education, and thereby to mould the minds of its subjects. In addition to influencing the universities through all manner of financial subventions, and through state-owned universities directly, the State controls education on the lower levels through the universal institutions of the public school, through certification requirements for private schools, and through compulsory attendance laws. Add to this a virtually total control over radio and television — either through outright State ownership, as in most countries — or, as in the United States, by the nationalization of the airwaves, and by the power of a federal commission to license the right of stations to use those frequencies and channels.[8]

Thus, the State, by its very nature, must violate the generally accepted moral laws to which most people adhere. Most people are agreed on the injustice and criminality of murder and theft. The customs, rules, and laws of all societies condemn these actions. The State, then, is always in a vulnerable position, despite its seeming age-old might. What particularly needs to be done is to enlighten the public on the State's true nature, so that they can see that the State habitually violates the generally accepted injunctions against robbery and murder, that the State is the necessary violator of the commonly accepted moral and criminal law.

We have seen clearly why the State needs the intellectuals; but why do the intellectuals need the State? Put simply, it is because intellectuals, whose services are often not very intensively desired by the mass of consumers, can find a more secure "market" for their abilities in the arms of the State. The State can provide them with a power, status, and wealth which they often cannot obtain in voluntary exchange.

For centuries, many (though, of course, not all) intellectuals have sought the goal of Power, the realization of the Platonic ideal of the "philosopher-king." Consider, for example, the cry from the heart by the distinguished Marxist scholar, Professor Needham, in protest against the acidulous critique by Karl Wittfogel of the alliance of State-and-intellectuals in Oriental despotisms: "The civilization which Professor Wittfogel is so bitterly attacking was one which could make poets and scholars into officials." Needham adds that "the successive [Chinese] emperors were served in all ages by a great company of profoundly humane and disinterested scholars."[9] Presumably, for Professor Needham, this is enough to justify the grinding despotisms of the ancient Orient.

But we need not go back as far as the ancient Orient or even as far as the proclaimed goal of the professors at the University of Berlin, in the nineteenth century, to form themselves into "the intellectual bodyguard of the House of Hohenzollern." In contemporary America, we have the eminent political scientist, Professor Richard Neustadt, hailing the President as the "sole crownlike symbol of the Union." We have national security manager Townsend Hoopes writing that "under our system the people can look only to the President to define the nature of our foreign policy problem and the national programs and sacrifices required to meet it with effectiveness."

And, in response, we have Richard Nixon, on the eve of his election as President, defining his role as follows: "He [the President] must articulate the nation's values, define its goals and marshal its will." Nixon's conception of his role is hauntingly similar to the scholar Ernst Huber's articulation, in the Germany of the 1930s, of the Constitutional Law of the Greater German Reich. Huber wrote that the head of State "sets up the great ends which are to be attained and draws up the plans for the utilization of all national powers in the achievement of the common goals … he gives the national life its true purpose and value."[10]

Thus, the State is a coercive criminal organization that subsists by a regularized large-scale system of taxation-theft, and which gets away with it by engineering the support of the majority (not, again, of everyone) through securing an alliance with a group of opinion-moulding intellectuals whom it rewards with a share in its power and pelf.

But there is another vital aspect of the State that needs to be considered. There is one critical argument for the State that now comes into view: namely, the implicit argument that the State apparatus really and properly owns the territorial area over which it claims jurisdiction. The State, in short, arrogates to itself a monopoly of force, of ultimate decision-making power, over a given territorial area — larger or smaller depending on historical conditions, and on how much it has been able to wrest from other States.

If the State may be said to properly own its territory, then it is proper for it to make rules for anyone who presumes to live in that area. It can legitimately seize or control private property because there is no private property in its area, because it really owns the entire land surface. So long as the State permits its subjects to leave its territory, then, it can be said to act as does any other owner who sets down rules for people living on his property.

(This seems to be the only justification for the crude slogan, "America, love it or leave it!," as well as the enormous emphasis generally placed on an individual's right to emigrate from a country.)

In short, this theory makes the State, as well as the King in the Middle Ages, a feudal overlord, who at least theoretically owned all the land in his domain. The fact that new and unowned resources — whether virgin land or lakes — are invariably claimed as owned by the State (its "public domain") is an expression of this implicit theory.

But our homesteading theory, outlined above, suffices to demolish any such pretensions by the State apparatus. For by what earthly right do the criminals of the State lay claim to the ownership of its land area? It is bad enough that they have seized control of ultimate decision-making for that area; what criterion can possibly give them the rightful ownership of the entire territory?

The State may therefore be defined as that organization which possesses either or both (in actual fact, almost always both) of the following characteristics:

1. it acquires its revenue by physical coercion (taxation); and
2. it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area.

Both of these essential activities of the State necessarily constitute criminal aggression and depredation of the just rights of private property of its subjects (including self-ownership). For the first constitutes and establishes theft on a grand scale; while the second prohibits the free competition of defense and decision-making agencies within a given territorial area — prohibiting the voluntary purchase and sale of defense and judicial services.[11] Hence the justice of the vivid critique of the State by the libertarian theorist Albert Jay Nock: "The State claims and exercises the monopoly of crime" in a given territorial area. "It 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."[12]

It must be emphasized that the State does not merely use coercion to acquire its own revenue, to hire propagandists to advance its power, and to arrogate to itself and to enforce a compulsory monopoly of such vital services as police protection, firefighting, transportation, and postal service. For the State does many other things as well, none of which can in any sense be said to serve the consuming public. It uses its monopoly of force to achieve, as Nock puts it, a "monopoly of crime" — to control, regulate, and coerce its hapless subjects. Often it pushes its way into controlling the morality and the very daily lives of its subjects. The state uses its coerced revenue, not merely to monopolize and provide genuine services inefficiently to the public, but also to build up its own power at the expense of its exploited and harassed subjects: to redistribute income and wealth from the public to itself and to its allies, and to control, command, and coerce the inhabitants of its territory.

In a truly free society, a society where individual rights of person and property are maintained, the State, then, would necessarily cease to exist. Its myriad of invasive and aggressive activities, its vast depredations on the rights of person and property, would then disappear. At the same time, those genuine services which it does manage badly to perform would be thrown open to free competition, and to voluntarily chosen payments by individual consumers.

The grotesquerie of the typical conservative call for the government to enforce conservative definitions of "morality" (e.g., by outlawing the alleged immorality of pornography) is therefore starkly revealed. Aside from other sound arguments against enforced morality (e.g., that no action not freely chosen can be considered "moral"), it is surely grotesque to entrust the function of guardian of the public morality to the most extensive criminal (and hence the most immoral) group in society — the State.

The Inner Contradictions of the State (Listen to the MP3)

A major problem with discussions of the necessity of government is the fact that all such discussions necessarily take place within a context of centuries of State existence and State rule — rule to which the public has become habituated. The wry coupling of the twin certainties in the popular motto "death and taxes" demonstrates that the public has resigned itself to the existence of the State as an evil but inescapable force of nature to which there is no alternative.

The force of habit as the cement of State rule was seen as early as the sixteenth-century writings of de la Boetie. But, logically, and to cast off the scales of habit, we must not merely compare an existing State with an unknown quantity, but begin at the social zero point, in the logical fiction of the "state of nature," and compare the relative arguments for the establishment of the State with those on behalf of a free society.

Let us assume, for example, that a sizeable number of people suddenly arrive on Earth, and that they must now consider what sort of social arrangements to live under. One person or group of persons argues as follows (i.e., the typical argument for the State): "If each of us is allowed to remain free in all aspects, and particularly if each of us is allowed to retain weapons and the right of self-defense, then we will all war against each other, and society will be wrecked. Therefore, let us turn over all of our guns and all of our ultimate decision-making power and power to define and enforce our rights to the Jones family over there. The Jones family will guard us from our predatory instincts, keep social peace, and enforce justice." Is it conceivable that any one (except perhaps the Jones family itself) would spend one moment considering this clearly absurd scheme? The cry of "who would guard us from the Jones family, especially when we are deprived of our weapons?" would suffice to shout down such a scheme. And yet, given the acquisition of legitimacy from the fact of longevity given the longtime rule of the "Jones family" this is precisely the type of argument to which we now blindly adhere. Employing the logical model of the state of nature aids us in casting off the fetters of habit to see the State plain — and to see that the Emperor, indeed, wears no clothes.

If, in fact, we cast a cold and logical eye on the theory of "limited government," we can see it for the chimera that it really is, for the unrealistic and inconsistent "Utopia" that it holds forth. In the first place, there is no reason to assume that a compulsory monopoly of violence, once acquired by the "Jones family" or by any State rulers, will remain "limited" to protection of person and property.

Certainly, historically, no government has long remained "limited" in this way. And there are excellent reasons to suppose that it never will. First, once the cancerous principle of coercion — of coerced revenue and compulsory monopoly of violence — is established and legitimated at the very heart of society, there is every reason to suppose that this precedent will be expanded and embellished. In particular, it is in the economic interest of the State rulers to work actively for such expansion. The more the coercive powers of the State are expanded beyond the cherished limits of the laissez-faire theorists, the greater the power and pelf accruing to the ruling caste operating the State apparatus. Hence, the ruling caste, eager to maximize its power and wealth, will stretch State power — and will encounter only feeble opposition, given the legitimacy it and its allied intellectuals are gaining, and given the lack of any institutional free-market channels of resistance to the government's monopoly of coercion and the power of ultimate decision-making.

On the free market, it is a happy fact that the maximization of the wealth of one person or group redounds to the benefit of all; but in the political realm, the realm of the State, a maximization of income and wealth can only accrue parasitically to the State and its rulers at the expense of the rest of society.

Advocates of a limited government often hold up the ideal of a government above the fray, refraining from taking sides or throwing its weight around, an "umpire" arbitrating impartially between contending factions in society. Yet why should the government do so? Given the unchecked power of the State, the State and its rulers will act to maximize their power and wealth, and hence inexorably expand beyond the supposed "limits."

The crucial point is that in the Utopia of limited government and laissez faire, there are no institutional mechanisms to keep the State limited. Surely the bloody record of States throughout history should have demonstrated that any power, once granted or acquired, will be used and therefore abused. Power corrupts, as the libertarian Lord Acton so wisely noted.

Furthermore, apart from the absence of institutional mechanisms to keep the ultimate decision-maker and force-wielder "limited" to protection of rights, there is a grave inner contradiction inherent in the very ideal of a neutral or impartial State. For there can be no such thing as a "neutral" tax, a taxing system that will be neutral to the market as it would have been without taxation. As John C. Calhoun trenchantly pointed out in the early nineteenth century, the very existence of taxation negates any possibility of such neutrality. For, given any level of taxation, the least that will happen will be the creation of two antagonistic social classes: the "ruling" classes who gain by and live off taxation, and the "ruled" classes who pay the taxes. In short, conflicting classes of net tax-payers and net tax-consumers. At the very least, the government bureaucrats will necessarily be net tax-consumers; other such will be those persons and groups subsidized by the inevitable expenditures of government. As Calhoun put it:

[T]he agents and employees of the government constitute that portion of the community who are the exclusive recipients of the proceeds of the taxes. Whatever amount is taken from the community in the form of taxes, if not lost, goes to them in the shape of expenditures and disbursements. The two — disbursement and taxation — constitute the fiscal action of the government. They are correlatives. What the one takes from the community under the name of taxes is transferred to the portion of the community who are the recipients under that of disbursements. But as the recipients constitute only a portion of the community, it follows, taking the two parts of the fiscal process together, that its actions must be unequal between the payers of the taxes and the recipients of their proceeds. Nor can it be otherwise; unless what is collected from each individual in the shape of taxes shall be returned to him in that of disbursements, which would make the process nugatory and absurd….

The necessary result, then, of the unequal fiscal action of the government is to divide the community into two great classes: one consisting of those who, in reality, pay the taxes, and, of course, bear exclusively the burden of supporting the government; and the other, of those who are the recipients of their proceeds through disbursements, and who are, in fact, supported by the government; or, in fewer words, to divide it into tax-payers and tax-consumers.

But the effect of this is to place them in antagonistic relations in reference to the fiscal action of the government — and the entire course of policy therewith connected. For the greater the taxes and disbursements, the greater the gain of the one and the loss of the other, and vice versa…. The effect, then, of every increase is to enrich and strengthen the one, and impoverish and weaken the other.[13]

Calhoun goes on to point out that a Constitution will not be able to keep the government limited; for given a monopoly Supreme Court selected by the self-same government and granted the power of ultimate decision-making, the political "ins" will always favor a "broad" or loose interpretation of the wording of the Constitution serving to expand the powers of government over the citizenry; and, over time, the "ins" will inexorably tend to win out over the minority of "outs" who will argue vainly for a "strict" interpretation limiting State power.[14]

But there are other fatal flaws and inconsistencies in the concept of limited, laissez-faire government. In the first place, it is generally accepted, by limited-government and by other political philosophers, that the State is necessary for the creation and development of law. But this is historically incorrect. For most law, but especially the most libertarian parts of the law, emerged not from the State, but out of non-State institutions: tribal custom, common-law judges and courts, the law merchant in mercantile courts, or admiralty law in tribunals set up by shippers themselves.

In the case of competing common-law judges as well as elders of tribes, the judges were not engaged in making law, but in finding the law in existing and generally accepted principles, and then applying that law to specific cases or to new technological or institutional conditions.[15] The same was true in private Roman law. Moreover, in ancient Ireland, a society existing for a thousand years until the conquest by Cromwell, "there was no trace of State-administered justice"; competing schools of professional jurists interpreted and applied the common body of customary law, with enforcement undertaken by competing and voluntarily supported tuatha, or insurance agencies. Furthermore, these customary rules were not haphazard or arbitrary but consciously rooted in natural law, discoverable by man's reason.[16]

But, in addition to the historical inaccuracy of the view that the State is needed for the development of law, Randy Barnett has brilliantly pointed out that the State by its very nature cannot obey its own legal rules. But if the State cannot obey its own legal rules, then it is necessarily deficient and self-contradictory as a maker of law. In an exegesis and critique of Lon L. Fuller's seminal work The Morality of Law, Barnett notes that Professor Fuller sees in the current thinking of legal positivism a persistent error: "the assumption that law should be viewed as a … one-way projection of authority, originating with government and imposing itself upon the citizen."[17]

Fuller points out that law is not simply "vertical" — a command from above from the State to its citizens, but also "horizontal," arising from among the people themselves and applied to each other. Fuller points to international law, tribal law, private rules, etc. as pervasive examples of such "reciprocal" and non-State law. Fuller sees the positivist error as stemming from failure to recognize a crucial principle of proper law, namely that the lawmaker should itself obey its own rules that it lays down for its citizens, or, in Fuller's words, "that enacted law itself presupposes a commitment by the government authority to abide by its own rules in dealing with its subjects."[18]

But Barnett correctly points out that Fuller errs significantly in failing to apply his own principle far enough: in limiting the principle to the procedural "rules by which laws are passed" rather than applying it to the substance of the laws themselves. Because of this failure to carry his principle to its logical conclusion, Fuller fails to see the inherent inner contradiction of the State as maker of law. As Barnett puts it,

Fuller fails in his attempt because he has not followed his own principle far enough. If he did, he would see that the state legal system does not conform to the principle of official congruence with its own rules. It is because the positivists see that the State inherently violates its own rules that they conclude, in a sense correctly that State-made law is sui generis.[19]

However, Barnett adds, if Fuller's principle were carried forward to assert that the "lawmaker must obey the substance of his own laws," then Fuller would see "that the State by its nature must violate this commitment."

For Barnett correctly points out that the two unique and essential features of the State are its power to tax — to acquire its revenue by coercion and hence robbery — and to prevent its subjects from hiring any other defense agency (compulsory monopoly of defense).[20] But in doing so, the State violates its own laws that it sets down for its subjects. As Barnett explains,

For example, the State says that citizens may not take from another by force and against his will that which belongs to another. And yet the State through its power to tax "legitimately" does just that…. More essentially, the State says that a person may use force upon another only in self-defense, i.e. only as a defense against another who initiated the use of force. To go beyond one's right of self-defense would be to aggress on the rights of others, a violation of one's legal duty. And yet the State by its claimed monopoly forcibly imposes its jurisdiction on persons who may have done nothing wrong. By doing so it aggresses against the rights of its citizens, something which its rules say citizens may not do.

The State, in short, may steal where its subjects may not and it may aggress (initiate the use of force) against its subjects while prohibiting them from exercising the same right. It is to this that the positivists look when they say that the law (meaning State-made law) is a one-way, vertical process. It is this that belies any claim of true reciprocity.[21]

Barnett concludes that, interpreted consistently, Fuller's principle means that in a true and proper legal system, the lawmaker must "follow all of its rules, procedural and substantive alike." Therefore, "to the degree that it does not and cannot do this it is not and cannot be a legal system and its acts are outside the law. The State qua state, therefore, is an illegal system."[22]

Another inner contradiction of the theory of laissez-faire government deals again with taxation. For if government is to be limited to "protection" of person and property, and taxation is to be "limited" to providing that service only, then how is the government to decide how much protection to provide and how much taxes to levy? For, contrary to the limited government theory, "protection" is no more a collective, one-lump "thing" than any other good or service in society.

Suppose, for example, that we might offer a competing theory, that government should be "limited" to supplying clothing free to all of its citizens. But this would scarcely be any sort of viable limit, apart from other flaws in the theory. For how much clothing, and at what cost? Must everyone be supplied with Balenciaga originals, for example? And who is to decide how much and what quality of clothing each person is to receive? Indeed, "protection" could conceivably imply anything from one policeman for an entire country, to supplying an armed bodyguard and a tank for every citizen — a proposition which would bankrupt the society posthaste.

But who is to decide on how much protection, since it is undeniable that every person would be better protected from theft and assault if provided with an armed bodyguard than if he is not? On the free market, decisions on how much and what quality of any good or service should be supplied to each person are made by means of voluntary purchases by each individual; but what criterion can be applied when the decision is made by government? The answer is none at all, and such governmental decisions can only be purely arbitrary.

Secondly, one searches in vain in the writings of laissez-faire theorists for a cogent theory of taxation: not only how much taxation is to be levied, but also who is to be forced to pay. The commonly adopted "ability to pay" theory, for example, is, as the libertarian Frank Chodorov pointed out, the philosophy of the highway robber to extract as much loot from the victim as the robber can get away with — scarcely a cogent social philosophy, and at total variance, of course, from the system of payment on the free market. For if everyone were forced to pay for every good and service in proportion to his income, then there would be no pricing system at all, and no market system could work. (David Rockefeller, for example, might be forced to pay $1million for a loaf of bread.)[23]

Next, no laissez-faire writer has ever provided a theory of the size of the State: if the State is to have a compulsory monopoly of force in a given territorial area, how large is that area to be? These theorists have not given full attention to the fact that the world has always lived in an "international anarchy," with no one government, or compulsory monopoly of decision-making, between various countries. And yet, international relations between private citizens of different countries have generally functioned quite smoothly, despite the lack of a single government over them. Thus, a contractual or a tort dispute between a citizen of North Dakota and of Manitoba is usually handled quite smoothly, typically with the plaintiff suing or placing charges in his court, and the court of the other country recognizing the result. Wars and conflicts usually take place between the governments, rather than the private citizens, of the various counties.

But more profoundly, would a laissez-fairist recognize the right of a region of a country to secede from that country? Is it legitimate for West Ruitania to secede from Ruritania? If not, why not? And if so, then how can there be a logical stopping-point to the secession? May not a small district secede, and then a city, and then a borough of that city, and then a block, and then finally a particular individual?[24] Once admit any right of secession whatever, and there is no logical stopping-point short of the right of individual secession, which logically entails anarchism, since then individuals may secede and patronize their own defense agencies, and the State has crumbled.

Finally there is a crucial inconsistency in the proffered criterion of laissez faire itself: limiting the government to protection of person and property. For, if it is legitimate for a government to tax, why not tax its subjects to provide other goods and services that may be useful to consumers: why shouldn't the government, for example, build steel plants, provide shoes, dams, postal service, etc.? For each of these goods and services is useful to consumers. If the laissez-fairists object that the government should not build steel plants or shoe factories and provide them to consumers (either free or for sale) because tax-coercion had been employed in constructing these plants, well then the same objection can of course be made to governmental police or judicial service.

The government should be acting no more immorally from the laissez-faire point of view, when providing housing or steel than when providing police protection. Government limited to protection, then, cannot be sustained even within the laissez-faire ideal itself, much less from any other consideration. It is true that the laissez-faire ideal could still be employed to prevent such "second-degree" coercive activities of government (i.e., coercion beyond the initial coercion of taxation) as price control or outlawry of pornography; but the "limits" have now become flimsy indeed, and may be stretched to virtually complete collectivism, in which the government only supplies goods and services, yet supplies all of them.

The Moral Status of Relations to the State (Listen to the MP3)

If the State, then, is a vast engine of institutionalized crime and aggression, the "organization of the political means" to wealth, then this means that the State is a criminal organization, and that therefore its moral status is radically different from any of the just property-owners that we have been discussing in this volume. And this means that the moral status of contracts with the State, promises to it and by it, differs radically as well. It means, for example, that no one is morally required to obey the State (except insofar as the State simply affirms the right of just private property against aggression). For, as a criminal organization with all of its income and assets derived from the crime of taxation, the State cannot possess any just property.

This means that it cannot be unjust or immoral to fail to pay taxes to the State, to appropriate the property of the State (which is in the hands of aggressors), to refuse to obey State orders, or to break contracts with the State (since it cannot be unjust to break contracts with criminals). Morally, from the point of view of proper political philosophy, "stealing" from the State, for example, is removing property from criminal hands, is, in a sense, "homesteading" property, except that instead of homesteading unused land, the person is removing property from the criminal sector of society — a positive good.

Here a partial exception can be made where the State has clearly stolen the property of a specific person. Suppose, for example, that the State confiscates jewels belonging to Brown. If Green then steals the jewels from the State, he is not committing a criminal offense from the point of view of libertarian theory. However, the jewels are still not his, and Brown would be justified in using force to repossess the jewels from Green. In most cases, of course, the State's confiscations, taking place in the form of taxation, are mixed into a common pot, and it is impossible to point to specific owners of its specific property. Who, for example, properly owns a TVA dam or a post-office building? In these majority cases, then, Green's theft or "homesteading" from the State would be legitimate as well as noncriminal, and would confer a just homesteading property title upon Green.

Lying to the State, then, also becomes a fortiori morally legitimate. Just as no one is morally required to answer a robber truthfully when he asks if there are any valuables in one's house, so no one can be morally required to answer truthfully similar questions asked by the State, e.g., when filling out income tax returns.

All this does not mean, of course, that we must counsel or require civil disobedience, nonpayment of taxes, or lying to or theft from the State, for these may well be prudentially unwise, considering the force majeure possessed by the State apparatus. But what we are saying is that these actions are just and morally licit. Relations with the State, then, become purely prudential and pragmatic considerations for the particular individuals involved, who must treat the State as an enemy with currently prevailing power.

Many libertarians fall into confusion on specific relations with the State, even when they concede the general immorality or criminality of State actions or interventions. Thus, there is the question of default, or more widely, repudiation of government debt. Many libertarians assert that the government is morally bound to pay its debts, and that therefore default or repudiation must be avoided.

The problem here is that these libertarians are analogizing from the perfectly proper thesis that private persons or institutions should keep their contracts and pay their debts. But government has no money of its own, and payment of its debt means that the taxpayers are further coerced into paying bondholders. Such coercion can never be licit from the libertarian point of view. For not only does increased taxation mean increased coercion and aggression against private property, but the seemingly innocent bondholder appears in a very different light when we consider that the purchase of a government bond is simply making an investment in the future loot from the robbery of taxation. As an eager investor in future robbery, then, the bondholder appears in a very different moral light from what is usually assumed.[25]

Another question to be placed in a new light is the problem of breaking contracts with the State. We have explained above our contention that since enforceable contracts are properly title-transfers and not promises, that therefore it would be legitimate in the free society to resign from an army despite the signing of a voluntary contract for a longer term of enlistment. But regardless of which theory of contract we adopt, such considerations apply only to private armies in the free market. Since State armies are criminal aggressors — both in their actions as well as their means of revenue — it would be morally licit to leave the State's army at any time, regardless of the terms of enlistment. It is morally the individual's right to do so, although again whether such an action is prudential or not is another matter entirely.

Let us consider in this light the question of bribery of government officials. We saw above, that, in a free society or free market, the briber is acting legitimately, whereas it is the bribee who is defrauding someone (e.g., an employer) and therefore deserves prosecution. What of bribery of government officials? Here a distinction must be made between "aggressive" and "defensive" bribery; the first should be considered improper and aggressive, whereas the latter should be considered proper and legitimate. Consider a typical "aggressive bribe": a Mafia leader bribes police officials to exclude other, competing operators of gambling casinos from a certain territorial area. Here, the Mafioso acts in collaboration with the government to coerce competing gambling proprietors. The Mafioso is, in this case, an initiator, and accessory, to governmental aggression against his competitors. On the other hand, a "defensive bribe" has a radically different moral status. In such a case, for example, Robinson, seeing that gambling casinos are outlawed in a certain area, bribes policemen to allow his casino to operate — a perfectly legitimate response to an unfortunate situation.

Defensive bribery, in fact, performs an important social function throughout the world. For, in many countries, business could not be transacted at all without the lubricant of bribery; in this way crippling and destructive regulations and exactions can be avoided. A "corrupt government," then, is not necessarily a bad thing; compared to an "incorruptible government" whose officials enforce the laws with great severity, "corruption" can at least allow a partial flowering of voluntary transactions and actions in a society. Of course, in neither case are either the regulations or prohibitions, or the enforcement officials themselves, justified, since neither they nor the exactions should be in existence at all.[26]

In some areas, a radical distinction between private persons and government officials is acknowledged in existing law and opinion. Thus, a private individual's "right to privacy" or right to keep silent does not and should not apply to government officials, whose records and operations should be open to public knowledge and evaluation. There are two democratic arguments for denying the right to privacy to government officials, which, while not strictly libertarian, are valuable as far as they go: namely

Another area where the law now distinguishes between private citizens and public officials is the law of libel. We have maintained above that libel laws are illegitimate. But, even given laws against libel, it is important to distinguish between libeling a private citizen and a government official or agency. By the nineteenth century, we had fortunately gotten rid of the pernicious common law of "seditious libel," which had been used as a club to repress almost any criticisms of government. Currently libel laws have now been fortunately weakened when applied, not merely to government per se, but also to politicians or government officials.

Many anarchist libertarians claim it immoral to vote or to engage in political action — the argument being that by participating in this way in State activity, the libertarian places his moral imprimatur upon the State apparatus itself. But a moral decision must be a free decision, and the State has placed individuals in society in an unfree environment, in a general matrix of coercion. The State — unfortunately — exists, and people must necessarily begin with this matrix to try to remedy their condition. As Lysander Spooner pointed out, in an environment of State coercion, voting does not imply voluntary consent.[27] Indeed, if the State allows us a periodic choice of rulers, limited though that choice may be, it surely cannot be considered immoral to make use of that limited choice to try to reduce or get rid of State power.[28]

The State, then, is not simply a part of society. The brunt of this part of the present volume, in fact, is to demonstrate that the State is not, as most utilitarian free-market economists like to think, a legitimate social institution that tends to be bumbling and inefficient in most of its activities. On the