Front Page Titles (by Subject) 2.: The Adversary State - The State
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
2.: The Adversary State - Anthony de Jasay, The State 
The State (Indianapolis: Liberty Fund, 1998).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Adversary State
Repression, Legitimacy and Consent
Reliance on consent, as a substitute for repression or legitimacy, makes the state into a democratic and divisive force.
To tell one sort of state from another, one should first look at how they go about getting obeyed.
In organizations that survive, a few command and the rest obey. In all, the few dispose of some means of sanctioning disobedience. The sanction may be the withdrawal of a good, like partial or total deprivation of the benefits of belonging to the organization, or it may be an outright bad like punishment. By suitably bending such terms as command, obedience, punishment, etc. this can be recognized as true for such institutions as the family, school, office, army, union, church and so forth. The sanction, to be efficient, must be suited to the nature of the offence and the institution. For the prosperity of an organization it is probably equally bad to over- and to under-punish. Usually, however, the graver the appropriate sanction, the less is the discretion of those in command to apply it.
Max Weber, in an extension of this thought, defined the state as the organization which “successfully claims the monopoly of the legitimate use of physical force.”1 The vulnerable aspect of this famous definition is the circularity of its idea of legitimacy. The use of physical force by the state is legitimate for no more fundamental and logically prior reason than that it has successfully claimed a monopoly of it and has thus become a proper state.2 The use of force by others is illegitimate by definition (except of course under delegation by the state). Thus doubt is cast on the existence of the state in a society where masters could in their discretion flog their servants or union militants can dissuade fellow workers from crossing picket lines by unspoken threats of unspecified revenge. A definition which might resist counter-examples rather better would lay down that the state is the organization in society which can inflict sanctions without risk of disavowal and can disavow sanctions by others. There are sanctions which, due to their inappropriateness or gravity, risk provoking appeal or need backing up by a more powerful organization. Only the state’s sanctions, for lack of a more powerful dispenser of sanctions, are certain not to be appealed.
This statement has the merit of expressing the state’s sovereignty. If there is nothing “above” it, the state’s decisions must be understood as final. However, for some purposes, it is sometimes convenient to treat the state, not as a homogeneous body with a single will, but as a heterogeneous composite made up of higher- and lower- and sideways-differentiated “instances.” In such a view, though appeal is impossible against the state to something beyond it, it is possible within it, against the bad local potentate to the good central bureaucracy, against the bad minister to the good king, against the axe-grinding executive to the impartial judiciary. In fact, it was the unease the very idea of sovereignty, of no further recourse, aroused in sober minds which used to set them off on the grand quest for the Holy Grail of political lore, the separation of powers, the supremacy of the legislature and the independence of the judiciary.
A less hopeful view of the morphology of the state sees a rub in this. Appeal from one instance of the state to another in general, and the independence of the judiciary in particular, presuppose the very conditions they are designed to ensure, like the raincoat which only keeps you dry in dry weather. Appeal within the state is fine if there are good ministers serving a good king and government is by and large benign. The judiciary is definitely a safeguard against the executive as long as the executive lets it be, but it has no powers to enforce its own independence. Like the Pope, it has no divisions, and like him, it cannot behave in temporal matters as if it had many. Its capacity to defy an executive unwilling to take defiance, is in the last analysis nothing but a dim reflection of the chances of successful popular revolt on its behalf—chances which are themselves usually the fainter the more the independence of the judiciary is waning. The 1770-1 clash between the French magistrature and the monarchy is a telling example of the point I am making. The parlements, in defying the king, had expected a broad popular clientele to stand behind them, but few would stick their necks out on their side. The magistrates, of course, actually owned their offices. They were nationalized and reimbursed. The new magistrates, chosen from among the old, became salaried officers of the king. They were assured security of tenure, presumably to ensure their independence!
The state may, of course, consider it positively useful to give its judiciary a measure of independence for ulterior reasons (cf. pp. 209-11). On the other hand, it may also do so because, its ends being quite restricted and “meta-political,” it sees no particular point in having a subservient judiciary. Seeing no such point may perhaps be a serviceable preliminary criterion of the benignity of the state. Reflection will show, however, that ultimately such a criterion is not serviceable, for while guaranteeing the rule of law, it may just guarantee the rule of bad law (and a state which is bound by its own bad laws, though better than the state that readily subordinates or adjusts law to reason-of-state, is not benign). However, at least it clarifies the relation between the independence of the judiciary and the state’s purposes. The former cannot purify the latter. The judiciary cannot render the state benign to ensure and perpetuate its own independence, any more than the proverbial man can lift himself by his own bootstraps.3
The separation-of-powers argument, once invoked, all too easily leads straight to the muddle of supposing the state to be benign because powers within it are separate, though causation runs the other way and only the other way; powers are genuinely separate only if the state is benign. We can, of course, tediously keep reminding ourselves that some powers are more real than others and that the test of reality is the ability of one to coerce the other, even if push never comes to shove because the latent chance of the use of force may always keep paper power in its place. Viewing the state as a plurality of instances including the caucus of the ruling party, the kitchen cabinet and the political police as well as the Weights and Measures Department, may save us from the sinful use of holistic, “systematically misleading expressions,”4 but for our present purpose the assumption of a homogeneous body and a single directing will, to which one appeals and against which one does not, is going to obviate much wearisome repetition.
Any state obtains obedience in one of three ways. The most straight-forward and historically often the first way is the threat of outright punishment which is implicit in the state’s superior command over means of repression. The least straightforward and transparent way is the establishment of its legitimacy. For the present purpose, legitimacy will be taken to mean the propensity of its subjects to obey its commands in the absence of either punishments or rewards for doing so.
A little elaboration may be called for. It will be remarked that such a definition makes legitimacy, not an attribute of the state, but a state of mind of its subjects. Depending on history, race, culture or economic organization, one people may accept a given state as legitimate while another would, if it could, reject it as a hateful tyranny. Foreign conquerors bringing progressive government to a benighted race exploited by its own ruling class, seldom have the tact and patience needed to become legitimate. There may also be some truth in the belief that some people are more governable than others, so that White Russians, with their reputation for meekness, may have recognized as legitimate, and fairly willingly obeyed, each of the successive and quite different states represented by Lithuanian, Polish and Great Russian rule. On the other hand, people on the Celtic fringes seldom feel that the state deserves their obedience no matter what it does either for them or to them. In France, where rule by divine right had a long gestation and after a period of conceptual muddle came to dominate political consciousness roughly from Henri II to Louis XIV, it was yet contested throughout by both Huguenot and Ultramontane ideologists and was twice near-fatally defied, by the League under Henri III and by the Fronde under Mazarin. If this proves anything, it is that concessions to the most potent counterforces in society, and the groping for consensus, are no recipe for breeding legitimacy.
Hume, who was firmly unimpressed by contractarian political theory, held that even if the fathers obeyed the state because they had become parties to a social contract, they have not bound their sons; the latter obey out of habit. Habit is probably nine parts of any good explanation of political obedience, but it does not explain much of legitimacy. Habitual obedience may itself rest on latent threats of coercion, on a dim sense of repression lurking in the background, or on the political hedonism the sons inherited in the form of “common knowledge,” from their contractarian fathers and which the state continued to nurture by an economical dripfeed of rewards.
Just as we want repression to be a logical limiting case of the spectrum of possible obedience-eliciting relations between state and subject, the case where unwilling people are all the time coerced by the threat of force to do the things the state wishes them to do and which they would not otherwise do, so we want legitimacy to be the limiting case at the opposite end, where the state can make people do things without possessing much in the way of the means of physical coercion or having many rewards to dispense. Thus when, in the Peasant Revolt of 1381, the young Richard II called out to the rebels: “Sirs, will you shoot your King? I am your captain, follow me,”5 it was the force of legitimacy which turned around the bereaved and furious bands of Wat Tyler. The King had, for the short run that alone mattered in that fateful moment, neither armed force to set against them, nor bribes for soothing their grievances, and he threw them no scapegoat. He needed neither.
Nothing, obviously, could suit a rational state better than to become legitimate in this sense. The only exception would be the state for which coercion, rather than being a more or less costly means to get people to obey it, would actually be an end, a satisfaction. It is no doubt tempting to view the state of a stylized Caligula, a simplified Ivan the Terrible, an unsympathetic Committee of Public Safety or a schematic Stalin in this light. In reality, even where cruelty seems gratuitous and terror both redundant and of debatable efficacy, so that the observer would ascribe it to the perverse whim of a tyrant, in the mind of the perpetrators it may well have been the indispensable laying of a groundwork for future legitimacy. A case study of how Aztec Mexico, Inca Peru and nineteenth-century Buganda attempted to legitimize their respective states in the face of a hostile and heterogeneous mass of subjects, concludes that “socialization involving benevolence and terror” were the principal ingredients of policy employed.6 Others included the establishment of “patterns of deference-demeanour,” the claiming of infallibility, the shaking up and mixing of ethnic groups and education for citizenship rather than for knowledge, so as to inculcate a liking for the state’s own values.
Though many of the ingredients must crop up again and again, it seems doubtful whether there is really a recipe in statecraft for getting from repression to legitimacy. Certainly no obvious one seems to have a decent success ratio, for legitimacy has been rare and elusive throughout history, needing ingredients simply not available at the snap of the state’s fingers. It took successful wars, prosperous peace, charismatic rulers, a great shared experience and perhaps, above all, continuity. The great value to the state of some undisputed rule of who gets the tenancy of power, like the Salic Law of dynastic succession, agreed and adhered to for some time and seen, like all good laws, to be impersonal and heedless of the merits of rival contestants, is precisely to retrieve continuity (albeit only a dynastic one) from death. It is partly for this reason that while, in general, it is no easier for a state to attain complete legitimacy than for the camel to pass through the eye of the needle, it is yet a little harder for republics than for monarchies. (Few political arrangements seem less apt to foster legitimacy than frequent elections, especially presidential ones focusing on a passing person. Every so many years, controversy is stoked up, to the effect that A would be a good and B a bad President and vice versa. After it has reached great heat, the controversy is supposed to be settled, by a possibly infinitesimal margin of votes, in favour of the good or of the bad candidate!)
No state relies on repression alone and none enjoys perfect legitimacy. It is trite to say that neither can really be employed without some admixture of the other, the prevailing amalgam of repression and legitimacy in any state depending, as Marxists would say, “on the concrete historical situation.” However, between the poles of coercion and divine right there has always been another element which is clearly neither: consent, historically perhaps the least important type of obedience-eliciting relation between state and subject, but perhaps the most fertile of recent consequences, particularly unintended ones. In early states, one can think of consent as binding only some minute but special group of subjects to the locus of the state’s will. The war gang’s obedience to a tribal leader or that of the praetorian guard to the Emperor may be examples of consent which border on complicity. Whether it is augurs, priests or officers of the state security police, the obedience of such small groups of people is a condition of the state’s tenure of power; like a pulley for lifting great weights by small force, it can set off the processes of repression as well as those, never assured of success, of creating legitimacy. Yet their complicity and collaboration with the state’s ends derives as a rule neither from repression nor from legitimacy, but from an implicit contract with the state which sets them apart from other subjects and rewards them at the latter’s expense in return for their willing obedience and consent to the state’s power. Some intellectually quite intriguing, and in their effects most portentous, problems arise when the group thus set apart and rewarded, expands amoeba-like across society, with ever more people inside and less outside it, until in the theoretical limit everybody consents and everybody is rewarded for it but there is nobody left to bear the cost (cf. pp. 260-1).
Consent for our purpose is best defined as an accord between state and subject, revocable with little advance notice by either party, whereby the subject adopts some appropriate and favourable attitude ranging from active militant support to passive allegiance, and the state furthers the subject’s specific ends up to limits which are constantly renegotiated and adjusted in the political process. It is very much less than the social contract, if only because it creates no new right or power for the state. It is not “social” because the civil party to it is never the whole of society, but merely the individual subject, group or class with motives and interests setting it apart from other individuals, groups or classes.
While the social contract treats the subject’s life and property or (as in Rousseau) his general good, the contract of consent deals with his partial and piecemeal ends; both contracts attract the political hedonist, but in different ways. No continuing obligations are created by the contract of consent any more than by cash-and-carry transactions which do not bind the parties to repeat them.
Let us revert to the rewards of consent. When nanny and the children practise the politics of consent by agreeing that if the children will be good children this afternoon, there will be strawberry jam for tea, strawberry jam is within nanny’s gift. In the short run, she can bestow it or not as she pleases. But the state has, generally speaking (and abstracting from such exotic and dated phenomena as strawberries grown on the royal domain) no rewards to bestow, no jam that is not already the jam of its subjects. Moreover, as I had occasion to point out in chapter 1, in the general case where its subjects are not unanimous in their conceptions of the good, the state can in the nature of the case only further its good which may, for all we know, be its conception of their good.
We have also noted that progressive assimilation of people’s own ends to the ends selected and pursued by the state, i.e. the development of “false consciousness,” can erode and at least in principle fully dissolve this contradiction. As Professor Ginsberg puts it in his Consequences of Consent: democratic elections “erode the adversary relationship between rulers and ruled... encourage citizens to believe that expansion of the state’s power meant only an increase in the government’s capacity to serve,”7 and “modern democratic governments tend to increase their control over the public’s putative means of controlling their actions.”8 However, the spread of false consciousness is neither a strong nor a sure enough mechanism for always securing the allegiance the state requires. First, it is not something the state can be confident of engendering unilaterally, at its sole volition, and certainly not over a short enough period. After all, it took almost a century from Jules Ferry’s vast reforms creating universal lay state education to the emergence of a socialist electoral majority in France, and over the intervening turns and byways the ultimate result was at best only rather probable, never certain. Where an ideologically not quite inept opposition exists, it can spoil the fresh growth of false consciousness as fast as the state is promoting it. Secondly, relying heavily on false consciousness is like “doing it with mirrors.” The people the least likely to be taken in could well be the tough and hard-nosed sort whose support the state most needs.
The common-sense perception that the state has no rewards to dispense that do not belong to its subjects anyway, so that it can only pay Paul by robbing Peter, is of course harmful for good-citizen false consciousness. By way of remedy, there stands the arguable assertion that the consent-generating transactions between state and subjects enhance social cooperation (and hence output, or harmony, or whatever good it takes social cooperation to produce) to the effect that the gains of the gainers exceed the losses of the losers. For well-rehearsed reasons, such an assertion is now generally taken to be a value judgement (it could be a statement of fact only in the special case where there are no losers, i.e. where all gains are net gains, and the latter are minor enough not to imply a significant change in the distribution of goods). It is the value judgement of the person who undertakes the adding up (with due regard to algebraic sign) of the gains and losses. No very good reason is on hand why his values should take precedence over anybody else’s who might get a different sum from the same addition. Recourse to the value-judgements of the gainers and losers directly involved settles nothing, for the losers might well value their losses more highly than they do the gainers’ gains, while the gainers are quite likely to do the opposite. Thus an impasse is reached. For equally well-rehearsed reasons, no gainer-to-loser compensation test seems possible which could “factually,” in a wertfrei manner prove the availability of a residual surplus of gains over losses, to be applied to the greater fulfilment of the gainers’ ends. Without such a surplus, however, there is no fund, created by the incremental contribution of the state to some index-number of total social end-fulfilment, out of which the state could bestow bits of end-fulfilment to selected subjects without damage to others.
Nor would the production of a surplus of good and its bestowal be sufficient to earn consent for the state. If a given subject came to hold that the activities of the state do generate additional end-fulfilment for him, he would for that reason alone have no interest to support the state any more than he was already doing. As far as he was concerned, the state’s bounty might be falling from heaven and changing his own conduct vis-à-vis the state could not make it fall any thicker. If he became a more docile subject and a more convinced supporter of the “government party,” he may have done so out of admiration for good government, or gratitude, but not out of rational self-interest in the narrow sense, on which political calculus can be based. This is possibly the abstract and general common element in the political failures of Enlightened Absolutism, the reformist good governments of Catherine the Great, the Emperor Joseph II and (less obviously) Louis XV, each of which met mainly with stony indifference and ingratitude on the part of the intended beneficiaries.
Rewards, to elicit self-interested support, must be contingent on performance. They must be embedded in implicit contracts of the “you will get this for doing thus” kind. Consequently, it is difficult to envisage the politics of consent without a type or types of political markets joining rulers and ruled, to enable bargains to be struck and revised. Democracy might be regarded as one or both of such types of markets functioning side by side. One is the majority-rule, one-man-one-vote type of pure electoral democracy, where the state at intervals engages in a competitive auction with (actual or potential) rivals for votes. The other, much older and less formal type of market, now usually called “pluralistic” or “group interest” democracy, is an endless series of parallel bilateral negotiations between the state and what one could, vulgarly but tellingly, call the wielders of clout within civil society. Clout must be seen not only as the capacity to deliver votes, but also as any other form of support useful for maintenance of the state’s power over its subjects, as a substitute for outright repression by the state itself.
I have no formal theory to offer which would take stock of and systematically organize the general causes inducing the state to aim at securing power more by consent and less by repression (or, what seems as yet much rarer, vice versa). Perhaps no such theory is really possible, at least not one which would deduce the state’s chosen policies from the assumption that it will select the means which lead efficiently to its ends. For it is arguable that the state relies on consent basically out of short-sightedness, weakness of will and the corollary liking for the line of least resistance. It usually seems easier to give than to withhold, to extend and dilute rewards than to restrict and concentrate them, to please more rather than less and to wear a bland rather than a stern face. Repression, moreover, has in fact often involved close identification of the state with an ally in civil society, a group, stratum or (in Marxist sociology, invariably) a class such as the nobility, the landed interest, the capitalists. Rightly or wrongly, states tended to judge that close alliance with some such narrow subset of society made them a captive of class, caste or group and negated their autonomy. As kings from medieval times sought to lessen their dependence on the nobility by soliciting the support of town burghers, so did the state in more modern times emancipate itself from the bourgeoisie by enfranchising and buying the votes of successively broader masses of people.
Taking these democratic ways out of the predicament which repressive government represents for the state (rather like committing the moral fault by which the protagonist tries to escape his fate in a properly constructed tragedy), entails its own punishment. “Punishment” for the state comes in the form of having to put up with political competition with rivals for power, whose consequences are ultimately destructive of the very ends the state was attempting to fulfil.
One logical issue out of this dilemma is resort to what is politely called people’s democracy, where the state has ample means to repress political competition yet solicits a degree of its subjects’ consent by raising expectations of future rewards once the building of socialism is sufficiently advanced. Some implications of open rivalry for state power, the multi-party system and of “clout” in civil society which may oppose the state unless bought off or reduced, will be more systematically treated in chapter 4, “Redistribution,” and the state’s rational response, principally the reduction of civil society’s clout, in chapter 5, “State Capitalism.”
When it is a question of obtaining tenure of the state in the first place, or not losing it, first things come first, with any considerations of how to use power once it is secured, coming obviously second in logical order if not in value. Assembling a broad enough base of consent can both earn power, and pre-empt the political ground which a narrower base would leave dangerously vacant and open for others to invade. Whether or not the rulers of a democratic society have the acuity to foresee the ultimately frustrating character of rule-by-consent (as compared to the disciplines of rule-by-repression, and the state of grace which is rule-through-legitimacy), the logic of their situation—drift—the politics of small steps drive them on in the democratic direction. They must deal with the immediate consequences of their previous weaknesses regardless of what the more distant future may call for, because, in the unforgettable phrase of a famous British consent-seeker, “a week is a long time in politics.”
Some of these considerations may help explain why, contrary to the early schoolbook version of disenfranchised masses clamouring for the right to participate in the political process, the drive for widening the franchise often came as much from the ruler as from the ruled. This seems to me the realistic view to take of Necker’s electoral initiatives for the French provincial estates in 1788-9, of the English reforms of 1832 and 1867 and of those of the Second Reich after 1871.
Rewards, finally, do not spontaneously grow on trees, nor are they generated and distributed to good citizens by good government. They are bargaining counters which the state acquires for distribution to its supporters by taking sides. A presumptive adversary of all in civil society, to obtain the support of some, it must become the actual adversary of others; if there were no class struggle, the state could usefully invent it.
The rise of partisan democracy in the nineteenth century served to build both mass consent and a bigger and cleverer state apparatus.
In a republic of teachers, the capitalist ends up as the political underdog.
The foundations of the lay Western welfare state were probably laid in England’s 1834 Poor Law, not because it was particularly good for the welfare of the poor (it was in fact bad in that it abolished outdoor relief) but because, at the same time as concerning itself with the poor, the state transferred the larger part of the administrative responsibility for them from the dilettante and independent local authorities to its own professionals in what was then starting to take shape as the civil service. The foremost author and promoter of this scheme of building state muscle and governing capacity was the great practical utilitarian Edwin Chadwick, without whose intense drive much of the intervention of the English central government in social affairs might have taken place several decades later than it did. However, there he was, his zeal speeding up historical inevitability by twenty years or so, clearly recognizing that if the state is effectively to promote a good cause, it must not rely on the goodwill of independent intermediaries whom it does not control.9 When subsequently he addressed his energies to public health, he obtained the creation of the General Board of Health with himself as its first Commissioner, only to have the Board peter out on his retirement in 1854, demonstrating how much depended, at that incipient stage of historical inevitability, on the commitment of a single individual. It was not till 1875 that the state got round to re-creating an administrative body in the Public Health Act and in doing so, incidentally committing “the largest invasion of property rights in the nineteenth century.”10 It is surprising, in view of the authority the state was acquiring over the subject in other areas of social life, that education remained facultative until 1880.
On a lower level of eminence than Chadwick, the inspectors created by the first Factory Acts had a somewhat analogous role as spearheads, at one and the same time, of social reform and of the aggrandizement of the state apparatus. In supervising the observance of the successive Factory Acts, they in perfect good faith kept finding further social problems for the state to solve. As these problems were in turn tackled, they found that as an incidental by-product, their own authority and the number of their subordinates had also increased. There was, in fact, a first major wave of expansion of the state’s concerns and, parallel with it, of its apparatus, from the Reform Act of 1832 to 1848, as if meant to secure the allegiance of the new voters; then followed a relative lull from 1849 to 1859, coinciding with the decade of conservative reaction on the Continent; and a rush of increasing activism ever since.
It has been estimated that over the period from 1850 to 1890 the number of British government employees grew by about 100 per cent and from 1890 to 1950 by another 1000 per cent; public expenditure in the nineteenth century averaged about 13 per cent of GNP, after 1920 it never fell below 24 per cent, after 1946 it was never less than 36 per cent and in our day it is, of course, just below or just above the half-way mark depending on how we count public expenditure.11 Statistical series over longish periods are rightly mistrusted because their context is liable to change in important ways. For similar reasons of non-comparable contexts, international statistical comparisons, say, of GNPs absorbed in public sector consumption and transfers, should be treated with some reserve. Nevertheless, where the relative numbers show vast differences either over time or between nations, one can safely draw at least the modest conclusion that government in England in the last century and a half increased several times over, or that among the major industrial countries, no government leaves as much of GNP for private purposes as the Japanese. It is perhaps appropriate at this point to recall again Walpole’s lack of governing zeal and relate it to the fact that his government had all of 17,000 employees, four-fifths of them engaged in the raising of the revenue.12
I will not deal a second time with the irrefutable dialectic argument that when in a situation of conflicting class interests the state sides with the working class, it is really siding with the capitalist class, for whoever has at his command the invincible adjective “real” must win any controversy over this, as over anything else. I merely note that in areas of possible concern which the earlier English state (the Hanoverian even more resolutely than its Stuart predecessor) largely ignored, the nineteenth century saw public policy playing an increasing role which was at least prima facie favourable to the many, the poor and the helpless. The passage from the state’s absence and unconcern to its progressive predominance had (in part predictable) consequences for the freedom of contract, the autonomy of capital and how people came to view their responsibility for their own fate.
At least in the early part of the century, the anti-capitalist drift of the reform movement certainly did not come from some clever calculation on the part of the state that there was more support to be gained on the “left” than lost on the “right.” In terms of the pre-1832 electoral arithmetic, this would have been dubious reckoning anyway. Up to the 1885 electoral reform if not beyond it, the main political benefit of taking sides with the labouring poor was derived not from getting their votes, but those of the progressive professional middle class. The earliest pro-labour legislation pleased above all the squirearchy and beyond it those magnates who particularly despised the money-grubbing of the mill-owners and their unconcern for the welfare of the millhands and their families. Sadler, Oastler and Ashley (Lord Shaftesbury) were imbued with righteous animosity towards the manufacturers, Sadler’s 1831-2 Select Committee on Factory Children’s Labour producing one of the most virulent anti-industry tracts ever.
The capitalist defence was characteristically inept. With the passage of time, as and when state policy helped the poor at the expense of the rich, it was both to help the poor and to please some altruistic or envious third party—the concerned middle class reared on Philosophical Radicalism (and, once or twice, just a certain, inordinately influential Master of Balliol). Even when broad popular support became a more clearly recognized and avowed objective, the state may have often been pushed farther by articulate middle- and upper-class opinion than could be warranted by the tangible political advantage to be reaped from some progressive measure. “False consciousness,” a ready acceptance (bordering on gullibility) of what the articulate say about the duty of the state in matters of social justice, was seldom absent from tentative forecasts of political profit and loss. Perhaps the most intriguing feature of the relatively quick transformation of the near-minimal Georgian state into a Victorian partisan democracy, an adversary of capital, endowing itself with an autonomous bureaucracy (albeit to a more moderate extent than many other states that were, for various reasons, more powerful and autonomous to begin with), is the mute defeatism with which the capitalist class, instead of drawing confidence from the dominant ideology of the age as it was supposed to do, submitted to the role of political underdog, contenting itself with making good money. Germany had Humboldt, France had Tocqueville to think and express the thoughts that were becoming urgent about the proper limits of the state and the awesome implications of popular sovereignty. England had only Cobden, Bright and Herbert Spencer in this camp. Her major thinkers, in keeping with the utilitarian tradition, in fact prepared the ideological foundations of the adversary state. (Historical circumstance, which gave Jacobinism to France and an adulation of the nation state to Germany, was admittedly much less kind to statism in England, where its ideologists had a relatively hard row to hoe till the last third or so of the century.) Mill, despite his ringing phrases in On Liberty, his mistrust of universal franchise and his dislike of the invasion of liberty by popular government, had no doctrine of restraint upon the state. His pragmatism strongly pulled him the other way. For him, state intervention involving the violation of personal liberties and (to the extent that these are distinct) property rights, was always bad except when it was good. True to his broad utilitarian streak, he was content to judge the actions of the state “on their merits,” case by case.
The doctrinal impotence of the capitalist interest is nicely illustrated by the course of labour law. English law regarding trade unions went round full circle between 1834 and 1906, from forbidding combinations to restrain competition in both the supply of and the demand for labour, to ultimately legalizing combinations to restrain supply and also exempting them from having to keep contracts when it was inconvenient to do so. Much the same effect favourable to labour could have been achieved in less provocative ways. Violating the principle of equality before the law between capital and labour was, one might have thought, asking for it. Yet there was no worth-while doctrinal capitalist counter-attack, no appeal to first principles, nor to the as-yet uncontested verities of political economy.
The English state, twice almost disarmed vis-à-vis civil society in 1641 and 1688, regained its predominance over private interest on the back of social reform, accomplishing its partisan anti-capitalist turn tentatively and gradually over nearly a century. In Continental Europe, civil society never disarmed the state which remained powerful, in governing apparatus and repressive capacity, even where it was standing on clay feet. The anti-capitalist turn as a means of building a base of consent, came rather later in these countries, but it was accomplished more rapidly. The watershed years when capitalism became the political underdog (though very much the top dog financially, becoming acceptable socially and still capable, in the case of such eminences as the Pereira brothers, the James de Rothschilds, the Bleichröders or the J. P. Morgans, to bend back the state to serve capitalist purposes), were either side of 1859 in France, 1862 in the North German Federation and 1900 in the USA.
It was roughly in 1859 that Napoleon III, in his own eyes a man of the left, began really to rely on the Assembly and to practise the rudiments of parliamentary democracy, and of a particular sort at that: for Guizot and Odilon Barrot were gone from the scene, to be replaced by such men of the radical left as Jules Favre, Jules Ferry and Gambetta, with only the “despicable Thiers” representing continuity of an unlovely kind with the bourgeois monarchy. Striking became legal in 1864 and a proper charter for labour unions, with fringe measures ranging from workers’ pensions to price control on bread, was legislated in 1867, Napoleon III taking a sympathetic interest in the encouragement of trade unions. Perhaps coincidentally with his shift toward the politics of consent, he showed a fine disregard for the capitalist interest in throwing open the French iron and steel, engineering and textile industries to the more efficient English and Belgian competition. Sharing the widespread illusion that a nation of shopkeepers will pay for a commercial good turn with such political support as he needed for his transalpine ambitions, in late 1859 he sent Chevalier, an ex-professor of economics with the free-trade convictions that such a calling tends to engender, to Cobden in London; it took the two kindred spirits an hour to negotiate a whole new free-trader tariff, to the furious surprise both of the Minister of Finance and the manufacturers concerned. Though perhaps of no more than anecdotal interest (anyone with a little acquaintance with tariff negotiations can at least smile at the story), the incident is characteristic of the respect the French state had, then as ever, for the interests of its industrialists.
Another facet of the adversary state which started to matter under the Second Empire and became very important in the Third Republic, was the autonomous evolution of the bureaucracy. The French professional civil service, built by the labours of Colbert, Louvois, Machault, Maupeou and, in unbroken continuity, by Napoleon, was at first closely entwined with property and enterprise, both because of the negotiability and (initially) relatively high capital value of offices, and of the dual role most of the civil service dynasties played in the royal administration and in the chief capitalist trades of the time, army contracting and tax farming. At the fall of the July Monarchy, in 1848, a regime which was less ambitious than most to dominate society, the civil service was more powerful than ever and, of course, more numerous (Marx noted, as a significant element in his characterization of the Second Empire, that there were 500,000 bureaucrats smothering civil society in addition to 500,000 soldiers), but no longer had much of a proprietorial stake in French industry and little property in general. The estrangement between capital and the bureaucracy was further accentuated in the Third Republic. While the top layer of the civil service was certainly upper-class (to Gambetta’s indignation) and continued to be dynastic, such property as it had was mainly in rentes, and it had no understanding of, nor common interest with, entrepreneurial capitalism.
Moreover, when in 1906 the emoluments of a député were nearly doubled, the profession of legislator became overnight quite attractive as a living. Till then, whatever was the social and economic background of the civil service, at least on the legislative side, capital, industry and land were strongly represented. From then onward, however, the republic of notables rapidly became, in Thibaudet’s oft-cited phrase, a “republic of teachers” which, to judge by the occupational backgrounds of successive French legislatures, it has remained ever since.
Unlike France, Germany did not have its “bourgeois” revolution (not that it is altogether evident how its history would have been different if it had). Nor did it have its July Monarchy, cheering on the German bourgeoisie to enrich themselves, though (despite their late start around the mid-century) they did not fail to do so for all that. Under the romantic anti-capitalism of Frederick William IV (i.e. till 1858), the Prussian state, while resisting the national liberal ideas imported from the Rhineland, nonetheless cleared up much of the administrative clutter and pointless interference which used to encumber enterprise. This relative economic liberalism was an (albeit minor) enabling cause of the spate of new enterprise which characterized the 1850s. When Bismarck gained the highest office in 1862, the National Liberals had definitely to give up any serious hope of shaping state policy. If it is not too crude to regard them as the party of capital, one can say that their subsequent conduct really signified the acceptance by the capitalist interest of a politically quite subordinate role.
Both directly, and indirectly by harnessing William I’s obsession with the army, Bismarck ensured that absolute priority be given to all-German and foreign affairs, almost regardless of the consequent tax burden on industry. The schematic explanation of his freedom of manoeuvre is, of course, his ably managed truce, at times amounting to a downright alliance, with the mainstream of the Social Democrats. A simple, but not for that reason wrong, way to grasp Bismarck’s policy is that his remarkably advanced social security and welfare legislation was the price he compelled German capital to pay, to have the domestic calm and consent he needed for the effective pursuit of his priority objectives in foreign policy. The latter was of mixed benefit to German industry and finance. Perhaps more accurately, one might judge that German manufacturing, technically and commercially riding the crest of the wave, could have derived some benefit from almost any feasible foreign policy of passable competence and continuity, whether active or passive, at least as long as it produced the German customs union. It did not really need more to prosper. Achieving much more than that in foreign policy probably cost it more than it was worth.
Bismarck’s fundamental bargain with a vital part of the socialist left and the fiscal exigencies of his foreign policy, however, were not the sole causes of the Prussian state, and later the Second Reich, turning a stern mien to capital. Another reason was the intellectual grip which Kathedersozialismus (“socialism of the professorial chair” and “teachers’ socialism” seem equally inadequate renderings)—took upon some of the most ambitious and devoted elements in the civil service, both through formal education and through the influence of the research done within the Verein für Sozialpolitik. If this Verein was more potent, and won its influence sooner, than the Fabians in Britain, its greater initial impact on legislation and regulation was in large part due to the excellence and policy-making latitude of the German civil service. It had a strong tradition, going back to Stein, of not only serving but of actually defining, interpreting the good of the state, and no false modesty about “merely executing” the will of its political masters. If we remember, in addition, that it tended to have little or no fortune and its family roots were mainly in the austere East while those of the representative German capitalist were more to the West or North, we have enough elements for appreciating the Reich’s adversary relationship to capital in the era of its greatest organizational and technical success. The breach with Russia, William II’s febrile foreign policy and the collision with France and England in 1914 were the culmination of a half-century of policy choices, rational and competently executed at the outset and progressively less so as time went by, in which the narrower interests of German capital were unhesitatingly sacrificed to the state’s own conception of the global national good. This was accomplished with the support of the bulk of social democracy and the labour union movement.
The reason, if ever there is a good reason for trying precisely to date historical turnings, for calling Theodore Roosevelt’s accession to the Presidency the start of the adversary relation between American government and capital, is mainly that any earlier starting date would include the McKinley years at the White House, about the most obvious antithesis to the thesis I am putting forward. The McKinley-William Jennings Bryan contest was the last time that money alone, against all odds, could get its candidate elected. The closing years of the nineteenth century saw the executive power of the state depending for support, in a way never since seen, on the capitalist interest rather than on the popular appeal of its conduct of affairs. The political colour of Theodore Roosevelt’s two terms is all the more of a contrast. His anti-trust, anti-railroad and anti-utility accomplishment is as wide by past standards as it is puny by those of most of his successors. It may be true that his bark was more fierce than his bite, that his true element was demagogy rather than unostentatious achievement, and that his administration in fact represented less of a populist and pro-union tilt, less of a stealing of the Democrats’ clothes, than one would judge from its bluster. However, his bark was in the short run perhaps as effective as any bite could have been, to put distance between himself and big business in the eye of the public and to mobilize national support for his purposes.
It is probably fair to say that there has never been an American administration which did not almost exclusively rely on consent to get itself obeyed, unlike some British and Continental European regimes which did not rely on it or did so only a little. Lincoln’s administration, having to take on in civil war the minority, might not otherwise have retained the consent of the majority (which is precisely Acton’s point about the potentially tragic implications of democracy in a non-homogeneous society). Consent was either votes or clout. Champions of the people tended to rely directly on votes. Others relied in the first place on the clout of those concentrations of private power, be they men or organizations, which stand between the state and the amorphous mass of the citizenry and provide society with structure.13 The alternance between the two types of organizing consent, the direct and the indirect, used to play much the same role in American political life as did (and do) the alternance of ideologically marked tendencies, conservative and progressive, Christian and lay, monarchist and republican parties in other societies. With Theodore Roosevelt, alternance in this sense ended in the USA; two parties subsist but both have become champions of the people. If one is less of an adversary of capital and readier to make use of sheer clout than the other, the difference is but of slight degree, especially as clout is no longer well correlated with capital.
The American example, where material inequalities were for a long period more admired than resented and rich-to-poor and rich-to-middle-class redistribution has only recently become the central tool of consent-building, lends itself poorly to clarifying the relation of consent by vote to consent by clout. Take instead any “country” which is perfectly repressive to begin with, say a concentration camp. For its successful functioning according to the purposes of its commandant, the allegiance or support of its cowed and emaciated inmates is immaterial, no matter how numerous they are; that of the less numerous band of well-fed trusties is relatively more important; and that of the handful of well-armed guards is essential. Even if he could, the camp commandant would be ill-advised to try and win over the inmates by promising to give them the guards’ rations. The subset of camp society containing the commandant and the guards is essentially a pure electoral democracy in that, with all the guards about equally well armed, the commandant must find the support of a majority of them, and it is the headcount that matters (even if there is no formal voting). If a larger subset including the trusties were carved out, the greater clout of the guards would have to be used to sway the “vote” of the trusties and secure the consent of their majority to the commandant’s way of running the camp. The implicit threat of throwing dissenters to the inmates would normally suffice. If, for some reason, the democratic subset were to be further enlarged and the rule of consent extended to the inmates, they would have to be divided and the support of one part obtained (if that was at all possible) by promising them the rations of another part. The less the clout of the guards and trusties or the less use one could make of it, the more the whole camp would approximate pure electoral democracy giving consent by headcount, with the majority getting the minority’s rations.
It seems to be a strange confusion, and one suffered by many states no less than by their subjects, to want to have the state rely on consent and to be everybody’s state, standing above classes and group interests, beholden to no group and impartially realizing its conception of society’s greatest good.
When the state takes sides, not only is it building the required base of consent. Perhaps unconsciously and unwittingly, it is also “learning by doing.” With every measure it takes to favour a subject or group of subjects, to modify the system of rewards and obligations which derives from past custom or voluntary contracts, to change social and economic arrangements that would prevail but for its intervention, it acquires more knowledge of its subjects’ affairs, a better and bigger administrative apparatus and, hence, an added capacity both to imagine and to carry out further measures. Two channels of unanticipated causation are dug in this manner, and end by forming a self-sustaining circuit. One leads from intervention to capacity for intervention, as physical labour leads to bigger muscle. The other leads from a larger state apparatus to an altered balance of interests in society, tilted in favour of more state intervention; for by self-aggrandizement the state increases the activist constituency.
These channels run within the state apparatus and not between it and civil society. Another and probably more potent circuit runs from state benefactions to a condition of dependence or addiction in civil society, calling for further benefactions. It is easier to grasp the mechanics of such circuits than to have confidence in their stability, in the capacity of built-in regulators ultimately to prevent them from getting out of control.
Utilitarianism favours activist government mainly because it is constructed to ignore a whole class of reasons for hastening slowly.
Judging things on their merits with an open mind fatefully attracts open minds.
It would be unhistorical and worse to imply that the state will in general just up and do whatever most efficiently ensures its political survival and the fulfilment of such other ends as it may have. On the contrary, it is, time and again, liable to choose relatively inefficient means to its ends, and even retard or hinder their attainment, for its feasible choices are to some extent pre-set for it by the Zeitgeist, the ethos of time and place. It cannot, without endangering the often delicate compound of repression, consent and legitimacy which it is aiming at worst to maintain and at best to strengthen, resort to actions for which it has, as it were, no ideological licence.
At the same time, in one of the chicken-and-egg sequences which seem to govern much of social life, ideology will sooner or later providentially issue the licence for precisely the sort of action which it is efficient for the state to undertake. Thus when we speak of “an idea whose time has come” (the development of the “base” producing the corresponding “dominant ideology”), we must also bear in mind the equally interesting inverted version, i.e. that the time has come because the idea has called it forth (the “superstructure” bringing about a corresponding development of the “base”). This preliminary is offered to help put in perspective the reciprocal relations of the adversary state and utilitarianism.
It is fairly conventional practice to discern three stages in the evolution of the state’s functions (though they are better regarded as heuristic rather than as historical, real-time stages). In the first, a vaguely Hobbesian state resolves a basic prisoners’ dilemma by enforcing respect for life and property, such enforcement being taken to include protection against a foreign state also. When political theory is handled as if it were economics, such a first-stage state can be assimilated to the single-product monopolistic firm making one public good, e.g. “order.” The second or Benthamite sort of state would then resemble a multi-product firm which provides a diversified range of goods or services whose profitable free-enterprise production runs up against some prisoners’ dilemma or at least a “free-rider” problem, and consequently requires coercion to cover its costs. (Voluntary arrangements lacking coercion would by assumption produce either distant substitutes, or different, possibly smaller, quantities of close substitutes of such goods.) What additional goods or services the state shall provide, or what additional functions it should undertake, is to be decided on their merits. In the third stage of the evolution of its functions, the state will undertake to produce the range of public goods thus selected and social justice as well.
There is no such dividing line between these stages as there is between the state of nature and the state. Each stage contains all of the “preceding” ones and is recognizable by the upsurge of one type of function without the abandonment of the others. When the balance of consent-seeking political advantage is in favour of the state restricting hours of factory work and laying down rules of safety, providing road signs, lighthouses and air-traffic controls, building sewers, inspecting abattoirs, obliging travellers to be inoculated, running schools and ordering parents to make their children attend them, teaching peasants how to farm and sculptors how to sculpt, adjusting a practice, reforming a custom, imposing a standard, the licence for undertaking these piecemeal improvements is provided by utilitarian doctrine. Its operation, by now often an unconscious habit of thought, is best understood as a sort of two-stroke argument, whose first stroke is a rejection of a priori conservatism, an implicit denial that existing arrangements contain a presumption in their own favour. Utilitarians reason, to pick up one of the pearls Michael Oakeshott is in the open-handed habit of casting before his readers,
as if everything could and should be looked at with an open mind, with a view to deciding whether it shall be tinkered with or not.
The second stroke of the argument (which could be so formulated as to subsume the first)15 is that actions are good if their consequences are good. (“Act-utilitarianism” gets to this result directly, “rule-utilitarianism” indirectly.) Therefore, we ought to alter any arrangement which would be improved thereby. Despite his non-interventionist reputation, this was precisely J. S. Mill’s position. He held that a departure from laissez faire involving an “unnecessary increase” in the power of government was a “certain evil” unless required by “some great good”—greater than the evil in order that the balance of good and bad consequences should be good. He at least had the virtue of making it explicit that the general form of the argument for tinkering must provide for the offsetting of a possible bad consequence (if only as an “empty box”), a form which makes advocacy of reforming an arrangement a somewhat more exacting task, for the good consequence had then better be very good.
Judging actions by their consequences is a difficult and peculiar rule, as is easily seen by considering the intrinsic nature of consequences. If we do not know what consequences an action will bring, the rule means that we cannot tell a good action from a bad one until after its consequences have been duly produced. Apart from the absurd moral implications, such an interpretation renders the doctrine quite unhelpful. On the other hand, if we know, or even think we know, “for certain” what the consequences are, we do so because we think they must surely, predictably follow from the particular action. If so, they are functionally inseparable from it like death is from beheading. In such a case, if we were to say “this action is good because its consequence is good,” we would really be saying no more than the action is good because, taken as a whole, it is good. This would be tantamount to recommending those reforms which improve arrangements—a wholly empty rule.
Utilitarianism does not, however, allow us to consider an action (say giving alms) to be good if its consequence (the beggar gets drunk on the money and is crippled by a passing car) is bad. Conversely, it requires us to approve an action if we would approve of its consequence. Between the limiting cases of not knowing the consequence at all and of knowing it for sure, lies the huge problem area where utilitarianism is bound up with questions of imperfect foresight. Over this area, policies appear to have several alternative chains of consequences (“ex ante”), though only one of the alternative chains can materialize (“ex post”). The ex ante consequences appear to have greater or lesser probabilities. The proper guide to political action is thus no longer “maximize utility,” but “maximize the expected value of utility.” The instant we say this, however, we let loose an avalanche of problems, each of which is insoluble except by recourse to authority.
Each alternative consequence can perfectly well appear to have different probabilities to different persons. These persons, in turn, may be (a) well- or ill-informed, and (b) astute or stupid in converting such information as they have into a probability assessment. Given the (Bayesian) nature of the probability in question, does it make any sense to say that they use the wrong probability assessment in valuing uncertain consequences?
On the other hand, it must seem hard to accept that a policy should be judged in terms of the possibly ill-informed, illusory, naive or biased probability assessments of the persons who are to enjoy or suffer its consequences. What if they have been misled by propaganda? And if several persons are affected by a policy, whose subjective probabilities should be used to value the alternative consequences? Should each person value the consequence to him by his assessment of its probability? It is obviously tempting to discard some of these probability judgements, retain the “best” or calculate some weighted average of the several best ones, and use it in maximizing expected utility.16 Whoever has authority to choose the “best” judgement, or the method for calculating a composite one, is in effect implicitly choosing his own.
Moreover, as each alternative consequence is capable of affecting several persons, “maximizing expected utility” would be an unhelpful rule even if the problems arising out of the term “expected” were taken to have been resolved by resort to authority. The meaning of “utility” must be resolved, too, so that it is agreed to represent a summation (no weaker method of ranking will go far) of the utilities of all the persons liable to be affected. In the language of the trade, it must be interpersonally integrated, “social” utility. Interpersonal integration of utility is no less problematical than interpersonal probability. Some aspects of it are treated in the next section in order to show that it, too, depends on authority for its resolution.
When Bentham in the Fragment on Government defined “the measure of right or wrong” as the happiness of the greatest number, he was manifestly conducting a discourse not on what was ethically right, but on how to choose between one action and another in the mundane business of legislation and government, and if such a distinction is on scrutiny hard to uphold, it is one practical men readily fall in with. (We may also recall, though it is perhaps no excuse, that Bentham wrote the Fragment in great part in order to fight Blackstone’s doctrine of legislative inaction, which he saw as an apology for complacency and sloth.)
The utilitarian prescription, then, which the state and its leading servants made their own, was to investigate existing arrangements, to report upon them to Parliament and public opinion, and to prepare reforms from which good consequences would ensue. The proposed change would be either one for which “effective demand” was already perceptible (though not always or mainly on the part of the prospective beneficiaries), or one for which such demand could be generated. It would seem that the more governments came to rely on popular support (in England in the last third of the nineteenth century), the more willing they became to arouse demands for change instead of letting sleeping dogs lie. (Neither the wholly repressive nor the fully legitimate state has a rational interest in waking up sleeping dogs.)
The piecemeal improving approach, which ceaselessly inspects arrangements of society, finds one that could be usefully “mended,” gains support first for and then from mending it and, with added strength, proceeds to the next one, is, as it were, purpose-built to isolate the proximate consequences of each action from the cumulative consequences of a series of them.17 Though the sum of the trees is the wood, the tree-by-tree approach is notorious for its built-in bias to lose sight of the wood. One of the pitfalls of judging actions by their consequences is that the latter, properly considered, form a virtually never-ending chain most of whose length stretches into an indefinite future. In human society, perhaps even more hopelessly than in less labyrinthine universes, ultimate consequences are in general unknowable. In this lies the innocence, both touching and dangerous, of the standard utilitarian advocacy of active government.
Take, in this context, the textbook injunction regarding state action to deal with “externalities”: “the presence of externalities does not automatically justify government intervention. Only an explicit comparison of benefits and costs can provide reasonable grounds for such a decision.”18 The statement is impeccably cautious and disarming. What could be more innocuous, more unexceptionable than to refrain from intervening unless the cost-benefit comparison is favourable? Yet it treats the balancing of benefits and costs, good and bad consequences, as if the logical status of such balancing were a settled matter, as if it were technically perhaps demanding but philosophically straightforward. Costs and benefits, however, stretch into the future (problems of predictability) and benefits do not normally or exclusively accrue to the same persons who bear the costs (problems of externality). Therefore, the balancing intrinsically depends both on foresight and on interpersonal comparisons. Treating it as a pragmatic question of factual analysis, one of information and measurement, is tacitly taking the prior and much larger questions as having been somehow, somewhere resolved. Only they have not been.
If it is as good as impossible to foresee all or the ultimate consequences of actions upon very complex social matter, while the proximate consequences are set out in a lucid piece of explicit cost-benefit analysis, the outcome of arguments is prejudged by their form. Advocacy of the action is conducted in the language of rational argument by open minds to open minds. If the visible good consequences are found to outweigh the visible bad, it is reason itself which calls for “improving intervention.” Opposition to it has few precise facts, little positive knowledge to marshal. It is reduced to uneasy premonitions, vague surmises of roundabout side-effects, dark mutterings about the undefined threat of state omnipresence, creeping collectivism and where will it all end? Its argument, in short, will bear the odious marks of obscurantism, political superstition and irrational prejudice. Thus will the open-minded utilitarian sheep be separated from the intuitionist goat along progressive-conservative, rational-instinctual, articulate-inarticulate cleavages.
These are quite unintended and slightly absurd consequences of the state needing, as it were, a licence to tinker, a rational justification for the piecemeal gathering of votes and clout. They nonetheless supply a perfectly possible answer (though there are others) to the puzzle of why, for the last two centuries or so, most brainy people having (or at least being trained to have) an open mind, have felt more at home on the political left, though it is easy to think of some a priori reasons why they might prefer to congregate on the right instead.
An object lesson in unintended and unforeseen effects is the fate of Bentham himself. He meant to provide a charter for individualism, and he fought in the name of liberty against a sluggish, obscurantist and, to his mind, despotic civil service (which regarded him as a crank and a nuisance). Yet Dicey, for whom the period from the Reform Bill to about 1870 was still the phase of Benthamism and individualism, calls the last third of the century the phase of collectivism and makes a chapter title out of “The Debt of Collectivism to Benthamism.”19 Incontestably, at least in English-speaking countries, Bentham has a stronger claim than the founding fathers of socialism to be the intellectual progenitor of the progress (as roundabout and occult as his parenthood of it was unintended) towards state capitalism.
The intellectual case for political utilitarianism rests on two planks. One, set lengthwise to link present action to future consequences, is the assumption of sufficient predictability. As a matter of day-to-day political judgement, the assumption of predictability tends to be replaced by the simple exclusion of the distant and the long term. Practical consideration is given to readily visible proximate consequences only (“a week is a long time in politics”). Of course, if the future does not matter, not dealing with it is as good as having perfect foresight and dealing with it. The second plank is, as it were, placed crosswise and lets one person’s utility be balanced against that of another person. To this balancing we must now turn.
The Revealed Preference of Governments
Nothing distinguishes interpersonal comparisons of utility to determine the best public action from the government “revealing its preference” for certain of its subjects.
When the state cannot please everybody, it will choose whom it had better please.
While deriving the goodness of an action from that of its consequences is the feature that most visibly sets utilitarianism apart from explicitly intuitionist moral philosophies, I would argue that even this apartness is only virtual and that at the end of the day utilitarianism is swallowed up by intuitionism. The steps in this argument lead once more to the realm of unintended effects. The nominal priority accorded to individual values leads, through the subordination of the lesser utility of some persons to the greater utility of others, to the exercise of state “intuition” to compare utilities, and to the enhancement of state power.
Defining good actions as those which have good consequences defers the question and asks at one remove, Which consequence is a good one? The received answer is partly dross: the word useful (utile) has pedestrian, mundane and narrowly hedonistic connotations which indicate a value system lacking nobility, beauty, altruism and transcendence. Some utilitarians, not least Bentham himself, bear the guilt for letting this false understanding get into the textbooks. Strictly, however, it ought to be discarded. In a suitably general form, utilitarianism tells us to regard a consequence as good if it is liked, no matter whether it is “pushpin or poetry” and no matter why; certainly not exclusively, and perhaps not at all, because it is useful. The liked consequence is synonymous with the satisfaction of a desire as well as with the fulfilment of an end, and it is “the measure of right or wrong.” The subject whose liking, desire or end qualifies a consequence, is always the individual. Arguments aimed at the good of the family, the group, the class or the whole society must first somehow satisfy individual criteria—they have to be derived from the several goods of the persons composing these entities. The individual person is sovereign in his likes and dislikes. No one chooses his ends for him and no one has a brief to dispute his tastes (although many utilitarians choose to restrict the domain of utility, in effect postulating that ends must be worthy of rational and moral man). Moreover, as it is clearly possible for individuals to like liberty, justice or, for that matter, divine grace, their attainment is productive of utility in the same way as, say, food and shelter. It is, therefore, possible to treat utility as a homogeneous resultant, a general index of end-attainments in which their plurality is in some unspecified manner synthesized in the individual mind. Such a view presupposes that there are no absolute priorities, that for each person every one of his ends is continuous, and suitably small bits of it can be traded off at some rate against bits of any other end. Though convenient, this treatment is somewhat arbitrary and possibly wrong. Besides, merging such ends as liberty or justice into an index of universal utility would conjure away some of the important questions political theory wants to ask.
(With the pretentiousness which makes the language of the social sciences sometimes so tiresome, “liking” is invariably transformed into its derivative “preference.” Texts on “social choice” usually talk of preferring, even when they do not mean liking better. This usage is now a fait accompli and I will conform to it as long as I do not also have to say “betters” when I mean “goods.” It would be a relief, though, if accepted practice did not oblige us to employ the comparative where the simple affirmative would suffice.)
Private actions, often, and public ones nearly always, have consequences for several persons, typically for entire societies. Since the unit of reference is the individual, the measure of their goodness is the algebraic sum of the utilities which they cause to accrue to each individual they affect. (Vaguer rankings of goodness can serve for very limited purposes only.) We are, in other words, dealing with the sum of the utilities gained by the gainers less that lost by the losers. If the public good is to be maximized, the choice between mutually exclusive public policies must favour the one which causes the greater net positive utility. How do we tell?
The two easy cases, where we can simply ask all concerned and take their answer (or watch what they do in order to read off the preferences they reveal), are unanimity and so-called Pareto-superior choices, the latter being cases where at least one of the people concerned prefers (the consequences of) policy A and none prefers policy B. In all other cases the choice, whatever it is, could be disputed either because some of the people concerned would opt for A and others for B or—doubly open to dispute and more realistic as a description of political life—because there is no practicable way of reliably consulting everybody even on the most important choices that would affect them, nor of causing each person to reveal his preference in other convincing ways. Let me stress again in passing that the unit of reference is still the individual; he alone has desires to satisfy and hence preferences to reveal.
To consign utilitarianism as a political doctrine to the oubliette, we can take the position that disputes arising out of conflicting views about the net balance of utility, are matters for knocking heads together, for there are no intellectually more acceptable means for resolving them. Consequently, unless some other doctrine is agreed for justifying its taking sides, the state ought to lean over backwards to avoid putting itself in a position where it must make choices pleasing some of its subjects and displeasing others. This leaning over backwards is, of course, the stance of the capitalist state which we have derived, from quite different premises, in chapter 1 (pp. 31-5).
The adversary state, on the contrary, positively needs occasions for taking sides, for reducing the satisfactions of some people, as this is the available coin with which to buy the support of others. To the extent that state policy and dominant ideology must advance more or less in step, dropping utilitarianism in the oubliette could have left the democratic state temporarily out on a limb, to be rescued eventually by the rise of substitute doctrines. It is not altogether clear whether this has, in fact, happened. Many strains of political thought, while protesting to have broken with utilitarianism, reason by what amounts to all practical purposes to the utilitarian calculus. Perhaps only properly trained socialists (who do not deal in satisfactions), are not unconscious “closet utilitarians.” Many, if not most, liberals abjure interpersonal comparisons, yet advocate actions by the state on quintessentially interpersonal utility-maximizing grounds.
The uncompromising view of interpersonal comparisons that would deny the least place to political utilitarianism, is that to add one man’s quiet contentment to the exuberant joy of another, to deduct a woman’s tears from another woman’s smile, is a conceptual absurdity which will not bear examination but, once stated, collapses of its own. When children learn that they must not try to add apples to pears, how can grown-ups believe that, if only they are performed carefully enough and buttressed by modern social research, such operations could serve as the guide to the desirable conduct of the state, to what is still fondly called “social choice”?
A revealing private confession by Bentham himself about the honesty of the procedure has been discovered in his private papers by Elie Halévy. Ruefully, Bentham declares, “’Tis in vain to talk of adding quantities which after the addition will continue as before, one man’s happiness will never be another man’s happiness... you might as well pretend to add twenty apples to twenty pears... This addibility of the happiness of different subjects... is a postulatum without the allowance of which all practical reasoning is at a stand.”20 Amusingly, he was prepared to admit both that the “postulatum of addibility” is logical wickedness and that he could not do without it. This might have caused him to pause and reflect on the honesty or otherwise of the “practical reasoning” he wished to promote. However, there could be no question of letting “practical reasoning come to a stand.” He accepted pretence, intellectual opportunism “pour les besoins de la cause,” rather in the manner of the atheist priest or the progressive historian.
Conceding that the utilities of different persons are incommensurate, so that utility, happiness, well-being cannot be interpersonally integrated is, at the same time, an admission that social science operating with utilitarian premises cannot be invoked to validate claims about one policy being “objectively” superior to another (except in the rare and politically almost insignificant case of “Pareto-superiority”). Utilitarianism then becomes ideologically useless. If policies still need rigorous intellectual advocacy, they have to be argued for in some other, less convenient and less seductive doctrinal framework.
Against this intransigent position, three stands rehabilitating interpersonal comparisons can be discerned. Each is associated with the names of several distinguished theorists, some of whom in fact straddle more than one position. It is as arbitrary to confine them to a single stand as it is sharply to demarcate one stand from another. Partly for this reason, and partly to avoid giving offence through what can be little better than vulgarized capsules unfit to contain the whole of a subtle and complex treatment, I will refrain from attributing specific positions to particular authors. The informed reader will judge whether or not the resulting roman à clef represents fairly the thinly disguised real characters involved.
One stand restoring to utilitarianism its role of judging policy, is that interpersonal comparisons are obviously possible since we are making them all the time. Only if we denied “other minds” could we rule out comparisons between them. Everyday linguistic usage proves the logical legitimacy of such statements as “A is happier than B” (level-comparison) and, at a pinch, presumably also “A is happier than B but by less than B is happier than C” (difference-comparison). A degree of freedom is, however, left to interpretation, which vitiates this approach. For these everyday statements can, for all their form tells us, just as well be about facts (A is taller than B) as about opinions, tastes or both (A is more handsome than B). If the latter, it is no use linguistic usage telling us that interpersonal comparisons are “possible” (they do not grate on the ear), because they are not the comparisons utilitarianism needs to provide “scientific” support for policies. An equally crucial ambiguity surrounds the piece of linguistic testimony that tends to be invoked in direct support of redistributive policies: “a dollar makes more difference to B than to A.” If the statement means that the incremental utility of a dollar to B is greater than it is to A, well and good. We have successfully compared amounts of utilities of two persons. If it means that a dollar affects B’s utility more than A’s, we have merely compared the relative change in B’s utility (“it has been vastly augmented”) and in A’s (“it has not changed all that much”), without having said anything about B’s utility-change being absolutely greater or smaller than A’s (i.e. without demonstrating that the utilities of two persons are commensurate, capable of being expressed in terms of some common homogeneous “social” utility).
Another integrationist stand confronts the issue of heterogeneity, as it were, head on, by proposing what I would call conventions for getting rid of it, rather as if Bentham had announced that he was going to feel free to call both apples and pears “fruit” and perform additions and subtractions in terms of “fruit-units.” These conventions can be regarded as non-empirical, not-to-be verified postulates introduced to round out a non-empirical circle of argument. It is, for instance, said that the utilities of “isomorphic” persons, who are identical in all but one variable (e.g. income, or age) can be treated as homogeneous quantities, and it is further proposed to treat certain populations for certain purposes as isomorphic. A different convention would have us regard everybody’s utility as inextricably bound up with everybody else’s via a relation of “extended sympathy.” Yet another approach transforms (roughly speaking) the utility functions of different people into linear transformations of one and the same function, by taking out of the parameters of preferences everything that makes them different, and putting back the differences “into the objects of the preferences.” There is also a proposal (which I personally find disarming), to put in place of people’s actual preferences the “moral” preferences they would have if they all identified themselves with society’s representative individual. A somewhat comparable convention is to regard different persons as “alternative selves” of the observer.
These and related conventions are an sich harmless and acceptable alternative statements of what would suffice to legitimize the integration of different persons’ utilities, happinesses or well-beings. They can be paraphrased to read: “The welfares of different individuals can be added into a social welfare function if they are agreed not to be different individuals.” Such conventions may well command agreement as to the sufficient condition which would make the summation of personal utilities legitimate. They are, however, not to be mistaken for ways to legitimize the summation if it was not legitimate to begin with.
A (to my mind) diametrically opposed stand is fully to accept that individuals are different, but to deny that this must render social welfare judgements arbitrary and intellectually unclean. This stand, like the “linguistic” one, seems to me to suffer from the ambiguity that the judgements it makes and the decisions it recommends (these being possibly two distinct functions) may be either questions of fact or matters of taste, without their form necessarily telling us which they are. If they are matters of taste—even if it is “taste” educated by practice and enlightened by information—there is little else to be said. We are manifestly in the hands of the sympathetic observer and all depends on who has the power to appoint him. Claims that one policy is better for society than another will rest upon authority.
On the other hand, if they are to be understood as verifiable, refutable matters of fact, interpersonal comparability must mean that any difficulties we may have with adding up are technical and not conceptual; they are due to the inaccessibility, paucity or vagueness of the required information. The problem is how to get at and measure what goes on inside people’s heads and not that the heads belong to different persons. Minimal, widely accessible information about Nero, Rome and fiddling, for example, is sufficient for concluding that, for a fact, there was no net gain of utility from the burning of Rome while Nero played the fiddle. Progressively richer, more precise information allows progressively more refined interpersonal findings. Thus we move forward from the non-addibility resulting from sheer lack of specific data to an at least quasi-cardinal utility and its at least partial interpersonal comparison.21 At least ostensibly, the contrast with proposals to ignore specificity and strip individuals of their differences, could not be more complete. The proposal here seems to be to start from admitted heterogeneity and approach homogeneity of individuals by capturing as many of their differences as possible in pairwise comparisons, as if we were comparing an apple and a pear first in terms of size, sugar content, acidity, colour, specific weight and so on through n separate comparisons of homogeneous attributes, leaving uncompared only residual ones which defy all common measure. Once we have found the n common attributes and performed the comparisons, we have n separate results. These must then be consolidated into a single result, the Comparison, by deciding their relative weights.
Would, however, the admission that this procedure for adding up utilities is intellectually coherent, suffice to make it acceptable for choosing policies? If the procedure were to be operated, a host of debatable issues would first have to be somehow (unanimously?) agreed by everybody whose utility gain or loss was liable to be compared in the operation. What distinguishing traits of each individual (income, education, health, job satisfaction, character, spouse’s good or bad disposition, etc.) shall be pairwise compared to infer utility levels or utility differences? If some traits can only be subjectively assessed, rather than read off from Census Bureau statistics, who shall assess them? What weight shall be given to each characteristic in inferring utility, and will the same weight do for people of possibly quite different sensibilities? Whose values shall condition these judgements? If some “equitable” way were unanimously agreed for delegating powers for taking comparative readings and setting the weights, the delegate would either go insane, or would just produce whatever result looked right to his intuition.22
The long and short of it is that objective and procedurally defined interpersonal comparisons of utility, even if they are modestly partial, are merely a roundabout route all the way back to irreducible arbitrariness, to be exercised by authority. At the end of the day, it is the intuition of the person making the comparison which decides, or there is no comparison. If so, what is the use of making intuitive interpersonal comparisons of utility so as to determine the preference ranking of alternative state policies? Why not resort directly to intuition for telling that one policy is better than the other? Intuitively deciding what had best be done is the classic role assigned to the sympathetic observer who has listened to the arguments, looked at the facts and then for better or worse exercised his prerogative. Who else is he, albeit at one remove, if not the state?
Failing unanimity on how exactly to perform interpersonal comparisons, different descriptions of the choice of policy are simultaneously possible. It can be said that the state, marshalling its statistical resources, its knowledge, sympathy and intuition, constructed measures of its subjects’ utilities, enabling them to be added to and deducted from each other. On this basis, it calculated the effect of each feasible policy upon total utility, and chose the one with the best effect. Alternatively, the state can be said to have simply chosen the policy which it thought was the best. The two descriptions are mutually consistent and one cannot contradict or refute the other.
In an analogous manner, the two statements “the state found that increasing group P’s utility and decreasing that of group R would result in a net increase in utility” and “the state chose to favour group P over group R” are descriptions of the same reality. Nothing empirical distinguishes the two operations they refer to. Whichever description is employed, by its choice the state will have “revealed its preference.” This is not to try and argue that all inquiry must stop at this point, for it is not done to question the causes of a preference. It is, however, a plea not to explain the state’s partiality by some futile hypothesis which can, by virtue of the irreducible arbitrariness of interpersonal comparisons, never be falsified.
Property and the freedom of contract (to be upheld) produce unjust distributive shares (to be redressed).
Free contracts are unfree if they are unfair.
In sketching the posture of the state consistent with letting people sort out among themselves the bundles of goods they would rather have (pp. 25-9), I described the capitalist state as one which, subject only to the non-violation of third-party rights, respects contracts entered into by consenting adults regardless of their status and of the fairness of the terms agreed. This does not in the least imply that such a state is impervious to ideas of fairness or justice or that it lacks compassion for those whose lot, such as it emerges from the interaction of contracts, is unhappy. It does imply, though, that the state does not feel entitled to indulge its or anybody else’s ideas of fairness and feelings of compassion.
The liberal doctrine justifying the adversary state, on the other hand, affirms (though at the outset it used to make relatively heavy weather of the grounds for any such affirmation) that it is entitled to do so; that over a wide area of contractual relations it has licence and indeed an express mandate to do so; and that its moral entitlement and its political mandate are the twin sources of its right to employ the coercion without which the aims of fairness and compassion cannot be attained. This, in effect, is the ideology which calls upon the state to do what it would be induced to do anyway in the normal course of building and maintaining consent to its rule, “dispensing distributive justice” being one way of describing such actions, “buying votes, buying clout,” another.
The progression from the Benthamite agenda of piecemeal improvements in social arrangements and additions to the range of public goods produced, to the liberal programme of doing distributive justice, is unbroken. In retrospect, once it is granted that a net interpersonal balance of good is not conceptual gibberish and special pleading, and that it can be brought about by promoting the (greater) good of some people at the expense of the (lesser) good of others, there is no difference in kind between forcing rich taxpayers to pay for prison reform, the eradication of cholera or a literacy campaign, and forcing them to supplement the standard of life of the poor (or, for that matter, of the less rich) in more comprehensive ways. As a matter of historical sequence, of course, there were differences of timing. The arguments for utilitarian tinkering with, say, public health or education were different, too, from those postulating the subordination of property rights to social justice or more generally to some conception of the greatest good of society. On the level of political practice, however, once the state, in a context of electoral democracy on a broad franchise, had made a habit of rewarding support, it was just a matter of cumulative consequences before relatively innocuous piecemeal tinkering proved inadequate for continuing political survival. Tenure of state power in competition with rivals came to require a progressively more systematic and consistent interference with contracts.
Interference can be of two broad kinds: constraint, which limits some of the terms which contracts are allowed to have (e.g. price control), and overriding, which retroactively undoes the effect of contracts (e.g. redistributive taxes and subsidies).
When I say “contracts,” I am especially interested in their role as instruments in bringing about a certain pattern of social cooperation and the corresponding distribution of incomes. In the state of nature (in which social cooperation takes place without help or hindrance by the state), the freedom to contract has the effect that production and people’s shares in the product are simultaneously determined by causes subsumed under such categories as the state of the art, tastes for goods and leisure, capital and people’s capacities for various types of effort. (The reader is no doubt alert to the fact that this account of distribution glosses over formidable problems. Enterprise, what Alfred Marshall called “organization,” and labour are all put in the pot labelled “capacities for various types of effort.” Explicit mention of the supply of labour and, above all, of the conceptually treacherous “stock of capital” is avoided, as is that of the production function, though covertly both continue to lurk in the wings. Happily, the course of our argument does not oblige us to face these difficulties.) People in the state of nature “get what they produce,” more precisely they get the value of the marginal product of whatever factor of production they contribute. Instead of “contribute,” it is often more instructive to think of the factor they “could but do not withdraw.” Either expression must be supplemented to allow for the quantity of the factor contributed or “not withheld.” The capitalist, then, gets the marginal product of capital in proportion to the capital he owns. The entrepreneur, the doctor and the machine-minder get the marginal products of their various kinds of effort in proportion to their exertions. If under a regime of free contracts, all potential contracting parties follow their interest (or if those who do not—the rational altruists or the simply irrational—do not weigh too heavily), factor prices will be bid up or down to marginal value-products (and the nearer each market approaches perfect competition, the more closely will they correspond to the values of their marginal physical products).
But once we leave the state of nature, we confront an irreducible complication. The state, to live, takes a share of the total final product. Hence, outside the state of nature, marginal productivity theory can at best determine the pre-tax incomes of its subjects. Post-tax distribution becomes in part some function of the pre-tax one and in part that of the political process, the latter determining what the state shall get from each of us.
In particular, distribution will be shaped by two major activities of the state: its production of public goods (understood, broadly, to include law and order, public health and education, roads and bridges, etc.), and its production of social justice through income redistribution. On some definitions, the production of social justice becomes part of the production of public goods; this gives rise to difficulties we can safely and advantageously leave on the side. (There is a not too far-fetched sense in which the production of any public good at public expense is ipso facto redistributive, if only because there is no unique, “right” way of apportioning the total cost to be borne, among members of the public according to the benefit derived by each from a given public good. Some can always be said to get a bargain, a subsidy, at the expense of others. Thus, the distinction between the production of public goods and explicit redistribution must be a matter of arbitrary convention.) Even the pre-tax pattern of distribution is, however, upset by the feedback effect which the post-tax one exercises upon it. Factors of production will, in general, be more or less readily supplied according to the price they can command and the situation of their owners (technically, the price- and income-elasticities of supply), so that if one or both are changed by taxes, there should be repercussions on output and on marginal products.
Apart from recognizing their logical possibility and indeed their likely importance, I have nothing specific to say on these repercussions. (In any case, they are difficult to come to grips with empirically.) I would, nevertheless, note a plausible a priori supposition regarding capital. Capital, once it has been accumulated and embodied in capital goods, cannot quickly be withdrawn. It takes time to “decumulate” (what Sir Dennis Robertson liked to call “disentangle”) it by the non-replacement of capital goods as they lose value due to physical wear and obsolescence. The short-period supply of capital goods must, therefore, be rather insensitive to the taxation of rent, interest and profit. The suppliers of effort may or may not “retaliate” against taxes on earned income by withholding their efforts. The suppliers of capital cannot, in the short period, retaliate against the taxation of unearned income, and it is the short period that is relevant to short-tenure politics. No immediate harm, then, is done to the economy by such measures as an excess profits tax, or rent control—an apartment block, once built, will not readily get unbuilt. It will fall down only after many years of non-maintenance. Though its neighbours might wish that it did so sooner, the resulting urban decay is at a politically safe distance away in the future.
Thus while the state can take the side of the many against the few and of the poor against the rich on the strength of arguments about the balance of total happiness or social justice, it can also favour labour over capital on grounds of economic expediency. It can, on the same ground, find arguments for favouring capital over labour as well. The availability of a diversified set of reasons for taking sides, even when some of them cancel each other out, is a great comfort to the state in assembling the system of rewards for consent upon which reposes its tenure of power. While these reasons may be regarded as mere excuses, as pretexts for doing what has to be done anyway to obey the imperatives of political survival, I think it would be wrong to suppose that for the rational state, they must be pretexts. The ideological commitment of the state may be perfectly sincere. In any case, it does not matter in the least whether it is or not, and there is no way of telling, as long as the ideology is the right one—by which is simply meant that it tells the state to do what the attainment of its ends calls for.
Classes which adopt an ideology telling them to do things contrary to their interest are said to be in a condition of “false consciousness.” It is, in principle, quite possible for this to happen to the state as well, and historical examples can be found where the condition of the state fits this description. “False consciousness” is, in particular, liable to mislead a state to relax repression in the illusory belief that it can obtain a sufficiency of consent instead, such misjudged relaxation being probably a frequent source of revolutions. Were it not for false consciousness or ineptitude or both, governments would probably last forever, states might never lose tenure. Plainly the broader, the more flexible and the less specific is an ideology, the less likely it is that false consciousness will bring to grief the state adhering to it. The liberal ideology with its malleability and plurality of ends is, from this point of view, a wonderfully safe one, in that adherence to it will rarely call for the state to stick its neck out and adopt a thoroughly risky line of conduct for its political survival. It is an ideology which typically offers many diverse “options,” each about as liberal as every other.
Reverting, after this digression about the concordance of ideology and rational interest, to the distributive shares which people, in entering into contracts, award to each other, there is of course no presumption for shares arrived at in this manner to be equal. The presumption for equality arises precisely out of the absence of valid reasons for inequality. If there are no reasons why people’s shares should be such and such, or if we deny these reasons (so goes the egalitarian argument based on symmetry, on the avoidance of randomness), then they should all have equal shares. Theories of distribution, such as the marginal productivity theory, however, are coherent sets of such reasons. It is a very awkward condition for an ideology to incorporate both a positive theory of distribution and a postulate of equal shares.
Early liberal ideology, invented by T. H. Green and Hobhouse and mass-marketed by John Dewey, had not at first broken either with natural right (involving respect for existing relations of property for no other reason than that they were lawfully arrived at) or with classical and neo-classical economics (involving a disposition to consider wages and profits as any other price, a proximate effect of supply and demand). By and large, it accepted as both empirically true and morally valid, a set of reasons why the material well-being of various persons was what it was. At the same time, it was developing the thesis that relative (if not absolute) material well-being was a question of justice; that its actual distribution could be unjust; and that the state had somehow obtained a mandate to ensure distributive justice. The “ought” was obviously destined to override the “is.”
As it matured, the liberal ideology progressively emancipated itself from its early respect for the reasons that make distributive shares unequal. If these reasons are invalid, they cannot constrain distributive justice. Its doctrine can go where it will in all freedom. At the outset, however, this was far from being accomplished. Liberal thought sought both to accept the causes of relative well-being and to reject their effect. This tour de force was performed by T. H. Green, with his doctrine of a contract capable of being apparently free but really unfree.23
There are, in the marginal contribution type of theories of distribution, three reasons why one person’s material well-being is different from another’s. One is capital: some people, as a matter of historical fact, own, and contribute to the productive process, more of it than others.24 Another is personal endowments, whether innate or acquired by education, self-improvement and experience.25 A third is work, effort measured in some way which can distinguish between various kinds of it. “Organization” (in Marshall’s sense), “enterprise” (in Schumpeter’s) might fit into the “effort” category, though perhaps not very comfortably, while the reward for risk-taking must accommodate itself alongside the reward of the capital that is being risked. Taking these in reverse order, liberal thought even today (let alone a short century ago), does not strongly contest the justice of unequal shares due to unequal efforts, provided this is understood in the sense of “hard work,” carrying a connotation of pain. “Hard work” in the sense of fun, or of passionate dedication, on the other hand, is a very much disputed ground for higher than average rewards.26
Personal endowments are a yet more controversial matter, for there has always been a strain of thought which implied that God-given talents, grace and beauty or the poise and assurance derived from a privileged background, were undeserved while advantages acquired by dint of application were deserved. By and large, however, earlier liberal thought did not seek to deny that people owned their qualities (though everybody was said to be entitled to equal opportunity to acquire at least those that education makes accessible to the ordinary plodder; there could be different views on what opportunities ought in equity to be provided for the brilliant person who gets more benefit out of the “same” education—should he be taught less?—but those were relatively peripheral doubts). Their differential qualities, if they owned them, had to be reflected in differential rewards if marginal productivity theory, implying equal rewards to equal contributions, was to make sense. Finally, capital merited its remuneration, and though vast incomes accruing to the owners of vast amounts of capital were hard to swallow, it seemed harder yet at first to say that property is inviolable when you have only a little of it but can be violated when you have a great deal.27 The temptation to gnaw at the edges of the principle of property’s inviolability could not long be resisted. Property had to be socially responsible, it had to provide work for people, its fruits (let alone the principal!) ought not to be dissipated in extravagant spending. T. H. Green himself rather approved of industrial capital while detesting landed property, and many liberals were inclined to feel that though capital was owned by particular individuals, it was really held in trust to society, a feeling seldom offended by the archetypal turn-of-the-century capitalist who saved and reinvested all but “the interest on the interest.”
Capital and personal endowments were thus, albeit grudgingly, admitted as legitimate causes for one person ending up with a bigger bundle of goods than another; yet the justness or otherwise of the relative bundles nevertheless became subject to public review, with the state legitimately proceeding to the adjustments deemed appropriate from such review. However, it was not the legitimate causes of inequality that produced the injustice—this would have been a patent absurdity—but the fact that some apparently free contracts were in reality (in T. H. Green’s phrase) “instruments of disguised oppression,” hence their terms were capable of producing unjust distributive shares.
How to pin down this Hegelian distinction? At first sight, it looks as if it referred to the unequal status of the contracting parties. A contract between the strong and the weak is not really free. Reflection shows, though, that this will not do. When is a worker weaker than a capitalist? He must surely be weaker when he is unemployed and badly needs a job? Does it then follow that when there is a severe labour shortage, it is the capitalist who badly needs workers who is weaker? If this is the wrong symmetry to employ, what else can we say but that the worker is always weaker than the capitalist? Employment contracts are thus always unequal and it is always wages that are too low and profits that are too high.
As liberal thought did not really mean this, however, what did it mean? The more we try permutations of economic and social status, bargaining power, market conditions, the business cycle and so forth, the clearer it becomes that the operative distinction between “strong” and “weak” contracting parties is that the person making such distinction considers the terms agreed as too good for the one and not good enough for the other. No other ground is available for this diagnosis than his sense of justice. The injustice of a contract, in turn, serves as sufficient evidence that it was entered into by unequal parties, that it was an unequal contract. If it was unequal, it was unjust, and so we go around in circles.
When, then, is a contract unfree, an “instrument of disguised oppression”? It is no good answering “when it produces unjust distributive shares,” i.e. when profits are excessive and wages are inadequate. This would stop us from saying “distributive shares are unjust when they are produced by unfree contracts.” If we are to escape circularity we must find an independent criterion either for unfree contracts (so we can spot unjust shares) or for unjust shares (so we can identify unfree contracts). Pursuing the early liberal approach calls for the former, for an independent definition of the unfreedom of contracts, so we can argue from unfreedom to injustice.
The tautological criterion of the unfreedom of a contract is that it was agreed to under duress. But for such a contract to pass as apparently free, the duress must be unseen. If everybody could spot it, it would not be “disguised oppression,” it could not be mistaken for free. It takes a discerning eye to detect it.
The next best criterion for disguised duress, then, is that the discerning eye recognizes it as such. This, however, only defers our difficulties, for now we need an agreed independent criterion for identifying whose eyes are discerning. Who, in other words, shall have the quality of judging that a contract involves disguised duress, i.e. that it is really unfree? It is this kind of conundrum which arose in national socialist Germany over the muddled attempts in the Nuremberg laws to define who is or is not Jewish, and which Hitler is reputed to have cut through by declaring: “Wer ein Jude ist, das bestimme ich!” (I shall decide who is a Jew!).28
It would seem, therefore, that for lack of independent criteria, interpersonal justice relies on the same intuitionist solution as interpersonal utility. Whoever commands power for mending the arrangements of society, and uses it, may be deemed to have assessed the effects on the utilities of all concerned, compared them and chosen the arrangement maximizing his estimate of interpersonal utility. It is meaningless to assert that he has not done so, or that he has falsified his own estimate, finding one result and acting on another. His choice will “reveal his preference” in two equivalent senses: putting it simply, his preference for the gainers over the losers; putting it more awkwardly, his assessment of the utilities of the prospective gainers and of the prospective losers respectively, and his way of comparing the two.
This account of the finding of the balance of utilities goes, mutatis mutandis, for the discovery of distributive justice by finding the balance of interpersonal deserts. Whoever is using coercion to put constraints upon the terms contracts are allowed to have, and to tax and subsidize so as to correct contractual outcomes according to the just deserts of the parties, can be deemed to have sympathetically observed contracts, to have detected the instances of disguised oppression of the weak and, in overriding such really unfree contracts, to have given effect to deserts and maximized justice as much as was politically feasible. It is futile to deny that he has done so, as it is to argue that he was not led by his true conception of justice. The standard liberal view is that the state which behaves as if it acted on interpersonal comparisons of utility or deserts or both, should be doing so in a framework of democratic rules so that there should be a popular mandate for its coercing the losers.
It is always comforting to ascribe coercion to a popular mandate, for everybody tends to approve more easily of a choice if “the people wanted it” than if “the despot wanted it.” There are, however, morally more ambiguous possibilities. Instead of the state’s interpersonal preferences being the result of popular mandate, causation can be thought to run the other way. In a political system resting mainly on consent of the “headcount” (electoral democracy) type, it is plausible to think of the state as organizing a popular mandate for its tenure of power by manifesting interpersonal preferences and promising to act in favour of selected people, groups, classes, etc. If it is successful in so doing, it can obviously be seen as balancing interpersonal utility or deserts and dispensing distributive justice along lines yielding the required result.
The attempt to tell which way round things “really” work can hardly be subjected to empirical test. One could perhaps tentatively suggest that in “the people’s mandate directs the state” version, it is the subjects’ sense of justice the state must satisfy, while in “the state bribes people to get their mandate” it is their interest. But few people consciously believe that their interest is unjust. Unless they do, their interest and sense of justice will coincide and be satisfied by the same actions. Hurting their interest will strike them as an injustice. There will be no litmus test for telling apart a state pursuing social justice from one playing “end-of-ideology,” “pluralist” interest-group politics.
If the state is “merely obeying orders,” carrying out the democratic mandate, responsibility for its actions lies with “the people” whose tool it is. More precisely, it is the majority (of voters, wielders of clout, or a blend of the two, depending on the way the particular democracy works) which is responsible for the harm done to the minority. Things become more complicated if we must take the view that the state engineers a popular mandate and bears the same sort of responsibility for it as does the “pusher” for his customers’ demand for a habit-forming substance. The addict then becomes as much a victim as the person he mugs in order to feed his habit.
Obviously, if all contracts had been really free with no one made to accept unjust terms under disguised duress, the question of distributive justice would not have arisen, or at any rate not while property was still held inviolable. It was just as well for the muscular development of the democratic state that this was not found to be the case.
Unintended Effects of Producing Interpersonal Utility and Justice
The constraints imposed on people by the state do not merely replace private constraints.
If people must always be bossed about and put upon, does it matter who does the bossing?
Whether it is conceived as pursuing interpersonal utility or distributive justice, the state provides a good for some of its subjects. Stretching words a little, it can be said that this good is the intended effect the latter were aiming at when lending their support to its policies. In the process of helping some (perhaps most) people to more utility and justice, the state imposes on civil society a system of interdictions and commands. This operation has inherent self-feeding characteristics. People’s conduct will get adjusted, habits will be formed in response to the state’s aids, interdictions and commands. Their adjusted behaviour and new habits create a demand for additional aids, needs for commands and so on, in a presumably endless iteration.29 The system becomes progressively more elaborate and requires an increasing apparatus of enforcement in the widest sense. Regularly or spasmodically, the power of the state over civil society will increase.
Incremental power accruing to the state in this way is a kind of second growth, over and above the accretion of state power engendered by its expanding role as the producer of more putative interpersonal utility and justice. These servitudes impinging to varying degrees on all subjects, and the enfeebled relative position of civil society as a whole, are the unintended effects of the state promoting the good of its subjects.30
This observation is not original, the less so as the rise of state power, the modification of people’s behaviour towards it (and towards each other) and the mutually reinforcing character of some of these developments belong to that momentous class of unintended effects which are not wholly unpredictable, yet remain largely unforeseen. The process is typically one within which prophecy has every chance of being disbelieved. Tocqueville saw it before any of it really happened, and Acton saw it about as soon as it started to gather momentum. When it was going strong, the liberal ideology had to find a place for it.
It did so by nurturing three separate strands of argument. The first basically denied that anything untoward was going on, that there were large and possibly ominous unintended effects piling up both in front and in the wake of social progress. The truth of this argument is an empirical question, the answer to it seems to me tediously evident and I do not propose to discuss it.
The second is that the hypertrophy of the state, while possibly real, is not malignant, at least not per se. It is what the state does with its increased weight and power that should condition our judgement of it. The view that great state power is intrinsically bad because it magnifies the harm individual subjects, or all of civil society, would suffer if the state chose for whatever reason to use it harmfully, is arbitrary and biased. The correct liberal view must be that democracy ensures that state power will not be used in ways harmful to the people. As the source of the increase in state power is precisely the extension of democracy, the very mechanism which breeds the unintended effects the reactionaries pretend to fear also breeds the safeguard against their purported dangers.
A priceless instance of this argument, unearthed by Friedrich von Hayek, figures in an 1885 speech by the very liberal Joseph Chamberlain: “Now government is the organised expression of the wishes and wants of the people and under these circumstances let us cease to regard it with suspicion. Now it is our business to extend its functions and to see in what ways its operations can be usefully enlarged.”31 The validity of this argument, like all arguments using the idea of a popular mandate, depends on the proposition that the state securing the consent of enough people to its tenure of power is tantamount to the people having instructed the state to do what it found expedient, necessary or desirable to do. If someone can see the popular mandate as corresponding to this equivalence, he can at least hold that democracy is a safeguard against the state’s power harming its own supporters, say the majority, whose will and wish it was that it should act in certain ways and adopt certain policies.
The corollary of this is that the greater is state power, the more exacting the demands of the majority can become and the greater the harm the state may have to do to the minority in conforming to the popular mandate. Along this route, we thus finally reach a perfectly Actonian conclusion about the morality of majority rule, with which liberals could not possibly agree.32 This is perhaps why the argument about democracy being the ipso facto safeguard against the dangers of overmighty government is not, as a rule, pressed too hard.
The third liberal argument in defence of the state doing interpersonal good despite unintended effects which may be bad, is more viable but also more sombre. It does not seek to deny that liberal policies do cause a continuous increase of the state, of its bulk, power and penetration of many aspects of the life of civil society. Nor does it contest that being surrounded by the state on all sides can be a bad, a disadvantage to some or to all to varying degrees, primarily in terms of lost liberty but, at least for some, in terms of utility or justice, too. It would assert, though, that this ought not to deter us from soliciting the state to maximize “total,” “social” utility or justice or both. For the loss of liberty, utility and justice which is its unintended side-effect is not a net loss.
The interpersonal balances of utility and of justice produced by state intervention are ex hypothesi positive, after all effects are duly accounted for, if they are being maximized; all the losses, including unintended ones, must be outweighed by the gains if the hypothesis of the state producing interpersonal good is to hold. But if liberty is a distinct end, separate from, say, utility, its loss may not be taken care of by the maximization of utility. It may also be that unintended effects are by their nature ill-adapted to be included in any utilitarian calculus (cf. pp. 101-2), because they always have a dimension of unpredictedness. Be that as it may, it would be foolish to deny that some liberty may be lost through the multiplication of the state’s commands, its widening coercive intervention in arrangements people reach among themselves and its substitution of just terms for negotiated ones in their contracts.
What the more sophisticated versions of the liberal ideology intimate is that this is not really the replacement of freedom by unfreedom. It is, instead, the substitution of rational and systematic interference for the arbitrary, random interference with people’s lives occasioned by “the social Darwinist sweepstakes that masquerade as a free market-place.” The saving difference is that while the “social sweepstakes” occasion interferences “inadvertently,” the state causes them “intentionally” which, it is implied, is for some reason less bad.33
Some care is needed in handling this argument, which is less transparent than it looks. It would be invalid if it meant that because people are being bossed about anyway, a bossy state cannot be all that objectionable. This would be like saying that since people keep getting killed in road accidents, we might as well retain or restore the death penalty (which is at least intentional). It may be valid, however, if it means that by submitting to systematic state interference (say, the death penalty for careless driving), people escape from chance-directed private interference (say, road accidents). Three conditions must be used to make it valid.
One is empirical. Greater state interference must, as a matter of fact, lead to lesser interference by the forces of unplanned chance. Enlisting as a soldier, with all found, for instance, must mean that in the barracks one is really less exposed to the accident of circumstance and the whim of others than if one were picking up a living in the bazaar. Those who hold that this is in fact so usually have, in the forefront of their minds, the pursuit by the partisan state of diverse egalitarian objectives, whose realization reduces the material risks and rewards of life relative to what would prevail in the state of nature, or in my hypothetical “policyless” capitalist state.
The second condition is that people should effectively prefer systematic interference by the state to random interference by the chance interaction of circumstances and other people’s whim, provided they know both from equal experience. This must be so in order to ensure that life has not biased their preferences, inducing addiction or allergy to the situation they know better. Plainly, this condition is rarely if ever satisfied, for soldiers know the soldier’s life and street traders know that of the street trader, but seldom each other’s. If one prefers the barracks and the other the bazaar, we might want to say that each would have preferred the other place if only they had had a broader experience. Similarly, if the welfare state breeds people dependent on state welfare, and if given the chance they ask for more of the same (which seems to be a standard finding of contemporary opinion surveys), we might contend “dialectically” that they never had the chance to develop their “real” preferences.
Finally, the “if we must be interfered with, better let the state do it” argument must meet a third condition. Granted that state interference can replace and relieve private interference, the rate at which it can accomplish this must (in some widely acceptable sense) be “cheap,” a favourable one. If it takes a crushing system of state coercion to get rid of a mildly irritating dose of private arbitrariness, the state coercion would not be worth accepting, almost regardless of people’s preferences between a safely regimented and a chance-ridden life. The converse is obviously the case if the rate of substitution works the other way. A formal bit of theory could be made to rest upon this condition, along “diminishing returns” lines borrowed from economics. At the start of the liberal state, a “small amount” of public constraint could liberate people from a “large” private one, with the rate of exchange between regular and irregular constraints steadily worsening as more and more private arbitrariness and accidents of circumstance were eliminated by the state’s pursuit of interpersonal utility and distributive justice until, with every nook and cranny of social relations combed for arbitrary inequalities, the unintended effects of the state doing good became excessively large and only a tiny amount of further private servitudes and unfreedoms could be got rid of at the cost of a large extension of public constraints. At some point, the “amount” of additional public constraint needed to replace a marginal “amount” of private constraint would, as a matter of social and historical fact, become equal to the “amount” with which a given individual would only just be prepared to put up, in order to be relieved of a marginal “amount” of private constraint. We might, for a guilty moment, suppose that the individual in question was representative of his whole society. Feeling by definition more comfortable at this point of the liberal evolution than at a more (or less) “advanced” point, society would choose to stop awhile. Such a point would stand for the stage of social progress where we would wish the state to pause, the equilibrium “mix” between public direction and private liberty, public goods and private consumption, mandatory price and income “policy” and free bargaining, public and private ownership of the “means of production” and so forth. (Cf. also pp. 264-6 on rolling back the state.)
Before investing the least mental effort in thinking in terms of such a construction, one would have to feel confident in assuming that people really have some substantive choice in the matter. The idea of “stopping the state” at the equilibrium point, or anywhere else for that matter, must be a practical one. On both theoretical and empirical grounds, it looks sheer fancy instead. However, if it were a practical possibility, one would have to give up the artifice of a representative man standing for society (which corresponds to the very special case of unanimity). We should have to admit the general case where at a given time some people want a more- and others a less-extensive state. Failing unanimity, what do we make of the amount of state bossiness which “people” are only just prepared to accept in exchange for reduced private arbitrariness, especially since some people are liable to get more of the relief and others to bear more of the cost?
Like any other attempt to construct a collective choice theory on the back of heterogeneous preferences and interests, the problem has no spontaneous solution. It requires the assignation, by some sovereign authority, of weights to the diverse preferences in place, to enable an interpersonal balance to be struck. There we go round and round, falling back upon the state (or an authority very much like it) to decide how much state would suit people best.
Whichever way the resultant of these arguments is taken to point, there is always a fallback position which would simply maintain that since people differ, no advice can be tendered on whether “on balance” they feel better or less put upon in the barracks than in the bazaar; hence, if there is something in the very mechanics of consent to state power which makes their life progressively more like the barracks and less like the bazaar, so be it.
There is, nevertheless, room here for a prior consideration, on which prudential advice may not be out of place. The problem of putting up with the unintended effects discussed here bears some analogy with the problem of the intentional bargain the political hedonist, seeking to escape alleged Hobbesian lawlessness, concludes in entering into the social contract (cf. p. 47). Mutatis mutandis, it also resembles the abdication of power by the capitalist class to the state for a more efficient oppression of the proletariat (cf. pp. 58-60). In either case, the contracting party is relieved of conflict with his like, man with man and class with class; his conflict is assumed, his battle is fought by the state instead. In exchange, the political hedonist, whether a person or a class, is disarmed and in this helpless condition is exposed to the risk of conflict with the state itself.
In conflict with his own kind, he would have the faculty of appeal, of recourse to a superior instance. Freedom from conflict of like with like, however, puts him in potential conflict with the higher instance. In opting for the latter, the possibility of recourse is given up. The state cannot be seriously expected to arbitrate conflicts to which it is an interested party, nor can we invoke its help in our quarrels with it. This is why accepting private interference, no matter how much it resembles “Darwinist sweepstakes,” is a risk of a different order from that of accepting state interference. The prudential argument against putting public in place of private constraints is not that one hurts more than the other. It is the somewhat indirect but no less powerful one that doing so makes the state unfit to perform the one service for civil society which no other body can render—that of being the instance of appeal.
[1. ]Max Weber, Essays in Sociology, 1946, p. 78.
[2. ]An application of this particular principle to the special case of the legitimacy of the use of force between states is Machiavelli’s doctrine that war is legitimate when it is necessary, the state itself being the only possible judge of necessity. For illuminating remarks on the enforcement by states of the monopoly of war-making in the fifteenth and sixteenth centuries, cf. Michael Howard, War in European History, 1976, pp. 23-4.
[3. ]It may be reasonable to suppose that there is some probabilistic feedback from an independent judiciary yesterday to good government and hence the toleration of an independent judiciary today, a virtuous cycle running counter to the vicious circle, if there is one, of state power changing society and the changed society providing the state with yet more power over itself. Clearly, however, the virtuous cycle has little stability; if it is interrupted by bad government for whatever reason, the independence of the judiciary is soon taken care of.
[4. ]Gilbert Ryle’s famous term for referring to the whole when we mean the part, as in “The Russian occupation forces raped your sister.”
[5. ]The Oxford History of England, vol. V, Mary McKisack, The Fourteenth Century, 1959, p. 413.
[6. ]Donald V. Kurtz, “The Legitimation of Early Inchoate States,” in Henri J. M. Claessen and Peter Skalnik (eds), The Study of the State, 1981.
[7. ]Benjamin Ginsberg, The Consequences of Consent, 1982, p. 24, his italics.
[8. ]Ibid., p. 26, my italics, cf. also pp. 215-6.
[9. ]Chadwick did not think that he and his fellow civil servant pioneers were empire-building, promoting their own pet policies, fulfilling their own (selfless) ends or working for the (selfish) interests of a self-serving bureaucracy. No doubt sincerely, he felt that they were neutrally administering the law and thus, but only thus, serving the public. He did not see that they were largely making the law. In fact, he considered attacking a civil servant to be like hitting a woman—the analogy presumably residing in their common defencelessness!
[10. ]Sir Ivor Jennings, Party Politics, 1962, vol. III, p. 412.
[11. ]The estimates are those of G. K. Fry in his The Growth of Government, 1979, p. 2.
[12. ]Ibid., p. 107.
[13. ]Leszek Kolakowski, the philosopher and eminent student of Marx’s thought, holds that civil society cannot have structure without private ownership of the means of production (Encounter, Jan. 1981). If so, the democratic drive (noted by Tocqueville) to break down structure, bypass intermediaries and appeal to one-man-one-vote, and the socialist drive to abolish private ownership of capital, are more closely related than is apparent.
[14. ]Michael Oakeshott, “Political Education,” in Peter Laslett (ed.), Philosophy, Politics and Society, 1956, p. 2.
[15. ]For example, it could be stipulated that no arrangement must be tinkered with unless doing so produced a greater gain in utility than the loss, if any, entailed in the act of tinkering, where utility would include the value that one may attach to the mere non-disturbance of an existing arrangement in addition to its utility in the customary, narrower sense.
[16. ]Frank Hahn, “On Some Difficulties of the Utilitarian Economist,” in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond, 1982, pp. 195-8, has a particularly lucid exposition of this question. Cf. also P. J. Hammond, “Utilitarianism, Uncertainty and Information,” in the same volume.
[17. ]It is only fair to remind the reader that Sir Karl Popper, in his Poverty of Historicism, 2nd edn, 1960, approves of piecemeal (at least as opposed to large-scale) “social engineering” on the grounds that the piecemeal approach allows being “always on the look-out for the unavoidable unwanted consequences” (p. 67). Being on the look-out is certainly the proper attitude. It is effective when the consequences are easy to identify and quick to appear; it is not when they are not.
[18. ]William J. Baumol, Welfare Economics and the Theory of the State, 2nd edn, 1965, p. 29.
[19. ]A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, 1905.
[20. ]Elie Halévy, The Growth of Philosophical Radicalism, p. 495, quoted by Lord Robbins, Politics and Economics, 1963, p. 15; my italics.
[21. ]A rigorous exposition of the types of interpersonal comparisons required for various types of “social welfare functions” is provided by K. C. Basu, Revealed Preference of Governments, 1980, ch. 6.
[22. ]A non-unanimous (e.g. majority) agreement to perform interpersonal utility comparisons in certain ways, would confer the same logical status upon the utility-maximizing quality of the public action selected on the basis of such comparison, as upon those directly selected, without benefit of any interpersonal comparisons, by any sort of non-unanimous agreement (vote, acclamation or random choice).
[23. ]In the Liberal Legislation and Freedom of Contract, 1889, Green takes off from ground next door to the Manchester School, and lands on the Hegelian cloud. Property arises out of the conquest of nature by unequal individuals, hence it is rightly unequal. It is owed to society because without the latter’s guarantee it could not be possessed. All rights derive from the common good. There can be no property rights, nor any other rights, against the common good, against society. The general will recognizes the common good.
[24. ]“Owning” plainly excludes “possessing de facto but unlawfully,” and “usurping.”
[25. ]I find “personal endowments” better to use than the “natural assets” employed among others by Rawls, because it begs no unintended question of how a person has come by his endowments, “naturally” or not—whether he was born with them, worked for them or just picked them up as he went. In my scheme, personal endowments differ from capital only in that they are not transferable; “finders are keepers” rules out questions about their deservedness and “provenance.”
[26. ]Cf. Brian Barry, The Liberal Theory of Justice, 1973, p. 159, for the suggestion that there are enough people who enjoy, or would enjoy, doing professional and managerial jobs to enable the pay of these jobs to be brought down to that of teachers and social workers.
[27. ]It is tempting to ascribe the early liberal respect for property to the Lockean tradition in Anglo-American political thought, with its close identification of property and (political) liberty. In a different culture, a different explanation would have to be found: why did the Abbé de Sieyès, a liberal in the Dewey mould who did not care a fig about Locke, think that everything should be equal except property?
[28. ]It is a gross fallacy to suppose that the rule “it is public opinion, or the majority of voters, who shall determine whether somebody is a Jew” is morally or rationally of a superior order to the apocryphal Hitler rule. Note, however, that “the majority of voters shall determine whether a contract is free, and whether distributive shares are just” is widely accepted by the general public.
[29. ]I am indebted to I. M. D. Little for the suggestion that “endless iteration” is not the unavoidable fate of this social process. Convergence towards a state of rest is logically just as possible. Nor is there an a priori presumption that endless iteration is more likely to be the case. However, the historical experience of actual societies supports the hypothesis of endless iteration and does not support that of convergence towards an equilibrium where no new state commands, prohibitions and aids are forthcoming.
[30. ]The reader may think that between the above lines there lurks a dim shadow of some “social trade-off between justice and liberty” which, side by side with the other trade-offs between pairs of society’s plural ends, is at the base of “pluralist” political theory. No such shadow is intended. As I fail to see how a society can be thought of as “choosing,” I would object to a social trade-off intruding its woolly head here.
[31. ]F. A. Hayek, The Constitution of Liberty, 1960, p. 444, my italics. The quotation repays study. First, we learn that what may have been true then is not true now that we control the state. Second, we are encouraged to embrace unintended effects, to make them into intended ones, positively to will second, third and nth rounds of state expansion and deliberately to push along the process of iteration engendered by the self-feeding feature of these effects. Used as we are to the contemporary state being overwhelmed by demands for “extending its functions” and “enlarging its operations” to help deserving interests, it may well strike us as funny that Joe Chamberlain saw a need for whetting people’s appetites for the state’s benefactions.
[32. ]The corollary could, for example, take this form: “The stronger the blows it can deliver to smash the class enemy, the better the state of the dictatorship of the proletariat can fulfil its historic function.” Needless to say, the liberal ideology is quite unready to accept a corollary of this sort.
[33. ]Benjamin R. Barber, “Robert Nozick and Philosophical Reductionism,” in M. Freeman and D. Robertson (eds), The Frontiers of Political Theory, 1980, p. 41.