Part 1 (2/2)

IF the state did not exist would it be necessary to invent it? Would one be needed, needed, and would it have to be and would it have to be invented? invented? These questions arise for political philosophy and for a theory explaining political phenomena and are answered by investigating the ”state of nature,” to use the terminology of traditional political theory. The justification for resuscitating this archaic notion would have to be the fruitfulness, interest, and far-reaching implications of the theory that results. For the (less trusting) readers who desire some a.s.surance in advance, this chapter discusses reasons why it is important to pursue state-of-nature theory, reasons for thinking that theory would be a fruitful one. These reasons necessarily are somewhat abstract and metatheoretical. The best reason is the developed theory itself. These questions arise for political philosophy and for a theory explaining political phenomena and are answered by investigating the ”state of nature,” to use the terminology of traditional political theory. The justification for resuscitating this archaic notion would have to be the fruitfulness, interest, and far-reaching implications of the theory that results. For the (less trusting) readers who desire some a.s.surance in advance, this chapter discusses reasons why it is important to pursue state-of-nature theory, reasons for thinking that theory would be a fruitful one. These reasons necessarily are somewhat abstract and metatheoretical. The best reason is the developed theory itself.

POLITICAL PHILOSOPHY.

The fundamental question of political philosophy, one that precedes questions about how the state should be organized, is whether there should be any state at all. Why not have anarchy? Since anarchist theory, if tenable, undercuts the whole subject of political political philosophy, it is appropriate to begin political philosophy with an examination of its major theoretical alternative. Those who consider anarchism not an unattractive doctrine will think it possible that political philosophy philosophy, it is appropriate to begin political philosophy with an examination of its major theoretical alternative. Those who consider anarchism not an unattractive doctrine will think it possible that political philosophy ends ends here as well. Others impatiently will await what is to come afterwards. Yet, as we shall see, archists and anarchists alike, those who spring gingerly from the starting point as well as those reluctantly argued away from it, can agree that beginning the subject of political philosophy with state-of-nature theory has an here as well. Others impatiently will await what is to come afterwards. Yet, as we shall see, archists and anarchists alike, those who spring gingerly from the starting point as well as those reluctantly argued away from it, can agree that beginning the subject of political philosophy with state-of-nature theory has an explanatory explanatory purpose. (Such a purpose is absent when epistemology is begun with an attempt to refute the skeptic.) purpose. (Such a purpose is absent when epistemology is begun with an attempt to refute the skeptic.) Which anarchic situation should we investigate to answer the question of why not anarchy? Perhaps the one that would exist if the actual political situation didn't, while no other possible political one did. But apart from the gratuitous a.s.sumption that everyone everywhere would be in the same nonstate boat and the enormous unmanageability of pursuing that counterfactual to arrive at a particular situation, that situation would lack fundamental theoretical interest. To be sure, if that nonstate situation were sufficiently awful, there would be a reason to refrain from dismantling or destroying a particular state and replacing it with none, now.

It would be more promising to focus upon a fundamental abstract description that would encompa.s.s all situations of interest, including ”where we would now be if.” Were this description awful enough, the state would come out as a preferred alternative, viewed as affectionately as a trip to the dentist. Such awful descriptions rarely convince, and not merely because they fail to cheer. The subjects of psychology and sociology are far too feeble to support generalizing so pessimistically across all societies and persons, especially since the argument depends upon not not making making such such pessimistic a.s.sumptions about how the pessimistic a.s.sumptions about how the state state operates. Of course, people know something of how actual states have operated, and they differ in their views. Given the enormous importance of the choice between the state and anarchy, caution might suggest one use the ”minimax” criterion, and focus upon a pessimistic estimate of the nonstate situation: the state would be compared with the most pessimistically described Hobbesian state of nature. But in using the minimax criterion, this Hobbesian situation should be compared with the most pessimistically described possible state, including operates. Of course, people know something of how actual states have operated, and they differ in their views. Given the enormous importance of the choice between the state and anarchy, caution might suggest one use the ”minimax” criterion, and focus upon a pessimistic estimate of the nonstate situation: the state would be compared with the most pessimistically described Hobbesian state of nature. But in using the minimax criterion, this Hobbesian situation should be compared with the most pessimistically described possible state, including future future ones. Such a comparison, surely, the worst state of nature would win. Those who view the state as an abomination will not find minimax very compelling, especially since it seems one could always bring back the state if that came to seem desirable. The ”maximax” criterion, on the other hand, would proceed on the most optimistic a.s.sumptions about how things would work out-G.o.dwin, if you like that sort of thing. But imprudent optimism also lacks conviction. Indeed, no proposed decision criterion for choice under uncertainty carries conviction here, nor does maximizing expected utility on the basis of such frail probabilities. ones. Such a comparison, surely, the worst state of nature would win. Those who view the state as an abomination will not find minimax very compelling, especially since it seems one could always bring back the state if that came to seem desirable. The ”maximax” criterion, on the other hand, would proceed on the most optimistic a.s.sumptions about how things would work out-G.o.dwin, if you like that sort of thing. But imprudent optimism also lacks conviction. Indeed, no proposed decision criterion for choice under uncertainty carries conviction here, nor does maximizing expected utility on the basis of such frail probabilities.

More to the point, especially for deciding what goals one should try to achieve, would be to focus upon a nonstate situation in which people generally satisfy moral constraints and generally act as they ought. Such an a.s.sumption is not wildly optimistic; it does not a.s.sume that all people act exactly as they should. Yet this state-of-nature situation is the best anarchic situation one reasonably could hope for. Hence investigating its nature and defects is of crucial importance to deciding whether there should be a state rather than anarchy. If one could show that the state would be superior even to this most favored situation of anarchy, the best that realistically can be hoped for, or would arise by a process involving no morally impermissible steps, or would be an improvement if it arose, this would provide a rationale for the state's existence; it would justify the state.a This investigation will raise the question of whether all the actions persons must do to set up and operate a state are themselves morally permissible. Some anarchists have claimed not merely that we would be better off without a state, but that any state necessarily violates people's moral rights and hence is intrinsically immoral. Our starting point then, though nonpolitical, is by intention far from nonmoral. Moral philosophy sets the background for, and boundaries of, political philosophy. What persons may and may not do to one another limits what they may do through the apparatus of a state, or do to establish such an apparatus. The moral prohibitions it is permissible to enforce are the source of whatever legitimacy the state's fundamental coercive power has. (Fundamental coercive power is power not resting upon any consent of the person to whom it is applied.) This provides a primary arena of state activity, perhaps the only legitimate arena. Furthermore, to the extent moral philosophy is unclear and gives rise to disagreements in people's moral judgments, it also sets problems which one might think could be appropriately handled in the political arena.

EXPLANATORY POLITICAL THEORY.

In addition to its importance for political philosophy, the investigation of this state of nature also will serve explanatory purposes. The possible ways of understanding the political realm are as follows: (1) to fully explain it in terms of the nonpolitical; (2) to view it as emerging from the nonpolitical but irreducible to it, a mode of organization of nonpolitical factors understandable only in terms of novel political principles; or (3) to view it as a completely autonomous realm. Since only the first promises full understanding of the whole political realm,1 it stands as the most desirable theoretical alternative, to be abandoned only if known to be impossible. Let us call this most desirable and complete kind of explanation of a realm it stands as the most desirable theoretical alternative, to be abandoned only if known to be impossible. Let us call this most desirable and complete kind of explanation of a realm a fundamental a fundamental explanation of the realm. explanation of the realm.

To explain fundamentally the political in terms of the nonpolitical, one might start either with a nonpolitical situation, showing how and why a political one later would arise out of it, or with a political situation that is described nonpolitically, deriving its political features from its nonpolitical description. This latter derivation either will identify the political features with those features nonpolitically described, or will use scientific laws to connect distinct features. Except perhaps for this last mode, the illumination of the explanation will vary directly with the independent glow of the nonpolitical starting point (be it situation or description) and with the distance, real or apparent, of the starting point from its political result. The more fundamental the starting point (the more it picks out basic, important, and inescapable features of the human situation) and the less close it is or seems to its result (the less political or statelike it looks), the better. It would not increase understanding to reach the state from an arbitrary and otherwise unimportant starting point, obviously adjacent to it from the start. Whereas discovering that political features and relations were reducible to, or identical with, ostensibly very different nonpolitical ones would be an exciting result. Were these features fundamental, the political realm would be firmly and deeply based. So far are we from such a major theoretical advance that prudence alone would recommend that we pursue the alternative of showing how a political situation would arise out of a nonpolitical one; that is, that we begin a fundamental explanatory explanatory account with what is familiar within political philosophy as state-of-nature theory. account with what is familiar within political philosophy as state-of-nature theory.

A theory of a state of nature that begins with fundamental general descriptions of morally permissible and impermissible actions, and of deeply based reasons why some persons in any society would violate these moral constraints, and goes on to describe how a state would arise from that state of nature will serve our explanatory purposes, even if no actual state ever arose that way. even if no actual state ever arose that way. Hempel has discussed the notion of a potential explanation, which intuitively (and roughly) is what would be the correct explanation if everything mentioned in it were true and operated. Hempel has discussed the notion of a potential explanation, which intuitively (and roughly) is what would be the correct explanation if everything mentioned in it were true and operated.2 Let us say that a Let us say that a law-defective law-defective potential explanation is a potential explanation with a false lawlike statement and that potential explanation is a potential explanation with a false lawlike statement and that a fact-defective a fact-defective potential explanation is a potential explanation with a false antecedent condition. A potential explanation that explains a phenomenon as the result of a process potential explanation is a potential explanation with a false antecedent condition. A potential explanation that explains a phenomenon as the result of a process P P will be defective (even though it is neither law-defective nor fact-defective) if some process will be defective (even though it is neither law-defective nor fact-defective) if some process Q Q other than other than P P produced the phenomenon, though produced the phenomenon, though P P was capable of doing it. Had this other process Q not produced it, then P would have. was capable of doing it. Had this other process Q not produced it, then P would have.b Let us call a potential explanation that fails in this way actually to explain the phenomenon Let us call a potential explanation that fails in this way actually to explain the phenomenon a process-defective a process-defective potential explanation. potential explanation.

A fundamental fundamental potential explanation (an explanation that would explain the whole realm under consideration were it the actual explanation) carries important explanatory illumination even if it is potential explanation (an explanation that would explain the whole realm under consideration were it the actual explanation) carries important explanatory illumination even if it is not not the correct explanation. To see how, in principle, a the correct explanation. To see how, in principle, a whole realm whole realm could fundamentally be explained greatly increases our understanding of the realm. could fundamentally be explained greatly increases our understanding of the realm.c It is difficult to say more without examining types of cases; indeed, without examining particular cases, but this we cannot do here. Fact-defective fundamental potential explanations, if their false initial conditions ”could have been true,” will carry great illumination; even wildly false initial conditions will illuminate, sometimes very greatly. Law-defective fundamental potential explanations may illuminate the nature of a realm almost as well as the correct explanations, especially if the ”laws” together form an interesting and integrated theory. And process-defective fundamental potential explanations (which are neither law-defective nor fact-defective) fit our explanatory bill and purposes almost perfectly. These things could not be said as strongly, if at all, about nonfundamental explanation. It is difficult to say more without examining types of cases; indeed, without examining particular cases, but this we cannot do here. Fact-defective fundamental potential explanations, if their false initial conditions ”could have been true,” will carry great illumination; even wildly false initial conditions will illuminate, sometimes very greatly. Law-defective fundamental potential explanations may illuminate the nature of a realm almost as well as the correct explanations, especially if the ”laws” together form an interesting and integrated theory. And process-defective fundamental potential explanations (which are neither law-defective nor fact-defective) fit our explanatory bill and purposes almost perfectly. These things could not be said as strongly, if at all, about nonfundamental explanation.

State-of-nature explanations of the political realm are are fundamental potential explanations of this realm and pack explanatory punch and illumination, even if incorrect. We learn much by seeing how the state could have arisen, even if it didn't arise that way. If it didn't arise that way, we also would learn much by determining why it didn't; by trying to explain why the particular bit of the real world that diverges from the state-of-nature model is as it is. fundamental potential explanations of this realm and pack explanatory punch and illumination, even if incorrect. We learn much by seeing how the state could have arisen, even if it didn't arise that way. If it didn't arise that way, we also would learn much by determining why it didn't; by trying to explain why the particular bit of the real world that diverges from the state-of-nature model is as it is.

Since considerations both of political philosophy and of explanatory political theory converge upon Locke's state of nature, we shall begin with that. More accurately, we shall begin with individuals in something sufficiently similar to Locke's state of nature so that many of the otherwise important differences may be ignored here. Only when some divergence between our conception and Locke's is relevant to political political philosophy, to our argument about the state, will it be mentioned. The completely accurate statement of the moral background, including the precise statement of the moral theory and its underlying basis, would require a full-scale presentation and is a task for another time. (A lifetime?) That task is so crucial, the gap left without its accomplishment so yawning, that it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his philosophy, to our argument about the state, will it be mentioned. The completely accurate statement of the moral background, including the precise statement of the moral theory and its underlying basis, would require a full-scale presentation and is a task for another time. (A lifetime?) That task is so crucial, the gap left without its accomplishment so yawning, that it is only a minor comfort to note that we here are following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise. Second Treatise.

CHAPTER 2.

The State of Nature INDIVIDUALS in Locke's state of nature are in ”a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or dependency upon the will of any other man” (sect. 4).1 The bounds of the law of nature require that ”no one ought to harm another in his life, health, liberty, or possessions” (sect. 6). Some persons transgress these bounds, ”invading others' rights and... doing hurt to one another,” and in response people may defend themselves or others against such invaders of rights (chap. 3). The injured party and his agents may recover from the offender ”so much as may make satisfaction for the harm he has suffered” (sect. 10); ”everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation” (sect. 7); each person may, and may only ”retribute to [a criminal] so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint” (sect. 8). The bounds of the law of nature require that ”no one ought to harm another in his life, health, liberty, or possessions” (sect. 6). Some persons transgress these bounds, ”invading others' rights and... doing hurt to one another,” and in response people may defend themselves or others against such invaders of rights (chap. 3). The injured party and his agents may recover from the offender ”so much as may make satisfaction for the harm he has suffered” (sect. 10); ”everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation” (sect. 7); each person may, and may only ”retribute to [a criminal] so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint” (sect. 8).

There are ”inconveniences of the state of nature” for which, says Locke, ”I easily grant that civil government is the proper remedy” (sect. 13). To understand precisely what civil government remedies, we must do more than repeat Locke's list of the inconveniences of the state of nature. We also must consider what arrangements might be made within a state of nature to deal with these inconveniences-to avoid them or to make them less likely to arise or to make them less serious on the occasions when they do arise. Only after the full resources of the state of nature are brought into play, namely all those voluntary arrangements and agreements persons might reach acting within their rights, and only after the effects of these are estimated, will we be in a position to see how serious are the inconveniences that yet remain to be remedied by the state, and to estimate whether the remedy is worse than the disease.d In a state of nature, the understood natural law may not provide for every contingency in a proper fas.h.i.+on (see sections 159 and 160 where Locke makes this point about legal systems, but contrast section 124), and men who judge in their own case will always give themselves the benefit of the doubt and a.s.sume that they are in the right. They will overestimate the amount of harm or damage they have suffered, and pa.s.sions will lead them to attempt to punish others more than proportionately and to exact excessive compensation (sects. 13, 124, 125). Thus private and personal enforcement of one's rights (including those rights that are violated when one is excessively punished) leads to feuds, to an endless series of acts of retaliation and exactions of compensation. And there is no firm way to settle settle such a dispute, to such a dispute, to end end it and to have both parties know it is ended. Even if one party it and to have both parties know it is ended. Even if one party says says he'll stop his acts of retaliation, the other can rest secure only if he knows the first still does not feel ent.i.tled to gain recompense or to exact retribution, and therefore ent.i.tled to try when a promising occasion presents itself. Any method a single individual might use in an attempt irrevocably to bind himself into ending his part in a feud would offer insufficient a.s.surance to the other party; tacit agreements to stop also would be unstable. he'll stop his acts of retaliation, the other can rest secure only if he knows the first still does not feel ent.i.tled to gain recompense or to exact retribution, and therefore ent.i.tled to try when a promising occasion presents itself. Any method a single individual might use in an attempt irrevocably to bind himself into ending his part in a feud would offer insufficient a.s.surance to the other party; tacit agreements to stop also would be unstable.2 Such feelings of being mutually wronged can occur even with the clearest right and with joint agreement on the facts of each person's conduct; all the more is there opportunity for such retaliatory battle when the facts or the rights are to some extent unclear. Also, in a state of nature a person may lack the power to enforce his rights; he may be unable to punish or exact compensation from a stronger adversary who has violated them (sects. 123, 126). Such feelings of being mutually wronged can occur even with the clearest right and with joint agreement on the facts of each person's conduct; all the more is there opportunity for such retaliatory battle when the facts or the rights are to some extent unclear. Also, in a state of nature a person may lack the power to enforce his rights; he may be unable to punish or exact compensation from a stronger adversary who has violated them (sects. 123, 126).

PROTECTIVE a.s.sOCIATIONS.

How might one deal with these troubles within a state of nature? Let us begin with the last. In a state of nature an individual may himself enforce his rights, defend himself, exact compensation, and punish (or at least try his best to do so). Others may join with him in his defense, at his call.3 They may join with him to repulse an attacker or to go after an aggressor because they are public spirited, or because they are his friends, or because he has helped them in the past, or because they wish him to help them in the future, or in exchange for something. Groups of individuals may form mutual-protection a.s.sociations: all will answer the call of any member for defense or for the enforcement of his rights. In union there is strength. Two inconveniences attend such simple mutual-protection a.s.sociations: (1) everyone is always on call to serve a protective function (and how shall it be decided who shall answer the call for those protective functions that do not require the services of all members?); and (2) any member may call out his a.s.sociates by saying his rights are being, or have been, violated. Protective a.s.sociations will not want to be at the beck and call of their cantankerous or paranoid members, not to mention those of their members who might attempt, under the guise of self-defense, to use the a.s.sociation to violate the rights of others. Difficulties will also arise if two different members of the same a.s.sociation are in dispute, each calling upon his fellow members to come to his aid. They may join with him to repulse an attacker or to go after an aggressor because they are public spirited, or because they are his friends, or because he has helped them in the past, or because they wish him to help them in the future, or in exchange for something. Groups of individuals may form mutual-protection a.s.sociations: all will answer the call of any member for defense or for the enforcement of his rights. In union there is strength. Two inconveniences attend such simple mutual-protection a.s.sociations: (1) everyone is always on call to serve a protective function (and how shall it be decided who shall answer the call for those protective functions that do not require the services of all members?); and (2) any member may call out his a.s.sociates by saying his rights are being, or have been, violated. Protective a.s.sociations will not want to be at the beck and call of their cantankerous or paranoid members, not to mention those of their members who might attempt, under the guise of self-defense, to use the a.s.sociation to violate the rights of others. Difficulties will also arise if two different members of the same a.s.sociation are in dispute, each calling upon his fellow members to come to his aid.

A mutual-protection a.s.sociation might attempt to deal with conflict among its own members by a policy of nonintervention. But this policy would bring discord within the a.s.sociation and might lead to the formation of subgroups who might fight among themselves and thus cause the breakup of the a.s.sociation. This policy would also encourage potential aggressors to join as many mutual-protection a.s.sociations as possible in order to gain immunity from retaliatory or defensive action, thus placing a great burden on the adequacy of the initial screening procedure of the a.s.sociation. Thus protective a.s.sociations (almost all of those that will survive which people will join) will not follow a policy of nonintervention; they will use some procedure to determine how to act when some members claim that other members have violated their rights. Many arbitrary procedures can be imagined (for example, act on the side of that member who complains first), but most persons will want to join a.s.sociations that follow some procedure to find out which claimant is correct. When a member of the a.s.sociation is in conflict with nonmembers, the a.s.sociation also will want to determine in some fas.h.i.+on who is in the right, if only to avoid constant and costly involvement in each member's quarrels, whether just or unjust. The inconvenience of everyone's being on call, whatever their activity at the moment or inclinations or comparative advantage, can be handled in the usual manner by division of labor and exchange. Some people will be hired to perform protective functions, and some entrepreneurs will go into the business of selling protective services. Different sorts of protective policies would be offered, at different prices, for those who may desire more extensive or elaborate protection.4 An individual might make more particular arrangements or commitments short of turning over to a private protective agency all functions of detection, apprehension, judicial determination of guilt, punishment, and exaction of compensation. Mindful of the dangers of being the judge in his own case, he might turn the decision as to whether he has indeed been wronged, and to what extent, to some other neutral or less involved party. In order for the occurrence of the social effect of justice's being seen to be done, such a party would have to be generally respected and thought to be neutral and upright. Both parties to a dispute may so attempt to safeguard themselves against the appearance of partiality, and both might even agree upon the same same person as the judge between them, and agree to abide by his decision. (Or there might be a specified process through which one of the parties dissatisfied with the decision could appeal it.) But, for obvious reasons, there will be strong tendencies for the above-mentioned functions to converge in the same agent or agency. person as the judge between them, and agree to abide by his decision. (Or there might be a specified process through which one of the parties dissatisfied with the decision could appeal it.) But, for obvious reasons, there will be strong tendencies for the above-mentioned functions to converge in the same agent or agency.

People sometimes now do take their disputes outside of the state's legal system to other judges or courts they have chosen, for example, to religious courts.5 If all parties to a dispute find some activities of the state or its legal system so repellent that they want nothing to do with it, they might agree to forms of arbitration or judgment outside the apparatus of the state. People tend to forget the possibilities of acting independently of the state. (Similarly, persons who want to be paternalistically regulated forget the possibilities of contracting into particular limitations on their own behavior or appointing a given paternalistic supervisory board over themselves. Instead, they swallow the exact pattern of restrictions a legislature happens to pa.s.s. Is there really someone who, searching for a group of wise and sensitive persons to regulate him for his own good, would choose that group of people who const.i.tute the members.h.i.+p of both houses of Congress?) Diverse forms of judicial adjudication, differing from the particular package the state provides, certainly could be developed. Nor do the costs of developing and choosing these account for people's use of the state form. For it would be easy to have a large number of preset packages which parties could select. Presumably what drives people to use the state's system of justice is the issue of ultimate enforcement. Only the state can enforce a judgment against the will of one of the parties. For the state does not If all parties to a dispute find some activities of the state or its legal system so repellent that they want nothing to do with it, they might agree to forms of arbitration or judgment outside the apparatus of the state. People tend to forget the possibilities of acting independently of the state. (Similarly, persons who want to be paternalistically regulated forget the possibilities of contracting into particular limitations on their own behavior or appointing a given paternalistic supervisory board over themselves. Instead, they swallow the exact pattern of restrictions a legislature happens to pa.s.s. Is there really someone who, searching for a group of wise and sensitive persons to regulate him for his own good, would choose that group of people who const.i.tute the members.h.i.+p of both houses of Congress?) Diverse forms of judicial adjudication, differing from the particular package the state provides, certainly could be developed. Nor do the costs of developing and choosing these account for people's use of the state form. For it would be easy to have a large number of preset packages which parties could select. Presumably what drives people to use the state's system of justice is the issue of ultimate enforcement. Only the state can enforce a judgment against the will of one of the parties. For the state does not allow allow anyone else to enforce another system's judgment. So in any dispute in which both parties cannot agree upon a method of settlement, or in any dispute in which one party does not trust another to abide by the decision (if the other contracts to forfeit something of enormous value if he doesn't abide by the decision, by what agency is anyone else to enforce another system's judgment. So in any dispute in which both parties cannot agree upon a method of settlement, or in any dispute in which one party does not trust another to abide by the decision (if the other contracts to forfeit something of enormous value if he doesn't abide by the decision, by what agency is that that contract to be enforced?), the parties who wish their claims put into effect will have no recourse permitted by the state's legal system other than to use that very legal system. This may present persons greatly opposed to a given state system with particularly poignant and painful choices. (If the state's legal system enforces the results of certain arbitration procedures, people may come to agree-supposing they abide by this agreement-without any actual direct contact with what they perceive to be officers or inst.i.tutions of the state. But this holds as well if they sign a contract that is enforced only by the state.) contract to be enforced?), the parties who wish their claims put into effect will have no recourse permitted by the state's legal system other than to use that very legal system. This may present persons greatly opposed to a given state system with particularly poignant and painful choices. (If the state's legal system enforces the results of certain arbitration procedures, people may come to agree-supposing they abide by this agreement-without any actual direct contact with what they perceive to be officers or inst.i.tutions of the state. But this holds as well if they sign a contract that is enforced only by the state.) Will protective agencies require require that their clients renounce exercising their right of private retaliation if they have been wronged by nonclients of the agency? Such retaliation may well lead to counterretaliation by another agency or individual, and a protective agency would not wish that their clients renounce exercising their right of private retaliation if they have been wronged by nonclients of the agency? Such retaliation may well lead to counterretaliation by another agency or individual, and a protective agency would not wish at that late stage at that late stage to get drawn into the messy affair by having to defend its client against the counterretaliation. Protective agencies would refuse to protect against counterretaliation unless they had first given permission for the retaliation. (Though might they not merely charge much more for the more extensive protection policy that provides such coverage?) The protective agencies need not even require that as part of his agreement with the agency, a client renounce, by contract, his right of private enforcement of justice against its to get drawn into the messy affair by having to defend its client against the counterretaliation. Protective agencies would refuse to protect against counterretaliation unless they had first given permission for the retaliation. (Though might they not merely charge much more for the more extensive protection policy that provides such coverage?) The protective agencies need not even require that as part of his agreement with the agency, a client renounce, by contract, his right of private enforcement of justice against its other clients. other clients. The agency need only refuse a client The agency need only refuse a client C, C, who privately enforces his rights against other clients, any protection against counterretaliation upon him by these other clients. This is similar to what occurs if who privately enforces his rights against other clients, any protection against counterretaliation upon him by these other clients. This is similar to what occurs if C C acts against a nonclient. The additional fact that acts against a nonclient. The additional fact that C C acts upon a client of the agency means that the agency will act toward acts upon a client of the agency means that the agency will act toward C C as it would toward any nonclient who privately enforced his rights upon any one of its clients (see Chapter 5). This reduces intra-agency private enforcement of rights to minuscule levels. as it would toward any nonclient who privately enforced his rights upon any one of its clients (see Chapter 5). This reduces intra-agency private enforcement of rights to minuscule levels.

THE DOMINANT PROTECTIVE a.s.sOCIATION.

Initially, several different protective a.s.sociations or companies will offer their services in the same geographical area. What will occur when there is a conflict between clients of different agencies? Things are relatively simple if the agencies reach the same decision about the disposition of the case. (Though each might want to exact the penalty.) But what happens if they reach different decisions as to the merits of the case, and one agency attempts to protect its client while the other is attempting to punish him or make him pay compensation? Only three possibilities are worth considering: 1. In such situations the forces of the two agencies do battle. One of the agencies always wins such battles. Since the clients of the losing agency are ill protected in conflicts with clients of the winning agency, they leave their agency to do business with the winner.6 2. One agency has its power centered in one geographical area, the other in another. Each wins the battles fought close to its center of power, with some gradient being established. 2. One agency has its power centered in one geographical area, the other in another. Each wins the battles fought close to its center of power, with some gradient being established.7 People who deal with one agency but live under the power of the other either move closer to their own agency's home headquarters or s.h.i.+ft their patronage to the other protective agency. (The border is about as conflictful as one between states.) People who deal with one agency but live under the power of the other either move closer to their own agency's home headquarters or s.h.i.+ft their patronage to the other protective agency. (The border is about as conflictful as one between states.)In neither of these two cases does there remain very much geographical interspersal. Only one protective agency operates over a given geographical area.3. The two agencies fight evenly and often. They win and lose about equally, and their interspersed members have frequent dealings and disputes with each other. Or perhaps without fighting or after only a few skirmishes the agencies realize that such battling will occur continually in the absence of preventive measures. In any case, to avoid frequent, costly, and wasteful battles the two agencies, perhaps through their executives, agree to resolve peacefully those cases about which they reach differing judgments. They agree to set up, and abide by the decisions of, some third judge or court to which they can turn when their respective judgments differ. (Or they might establish rules determining which agency has jurisdiction under which circ.u.mstances.) 8 8 Thus emerges a system of appeals courts and agreed upon rules about jurisdiction and the conflict of laws. Though different agencies operate, there is one unified federal judicial system of which they all are components. Thus emerges a system of appeals courts and agreed upon rules about jurisdiction and the conflict of laws. Though different agencies operate, there is one unified federal judicial system of which they all are components.

In each of these cases, almost all the persons in a geographical area are under some common system that judges between their competing claims and enforces enforces their rights. Out of anarchy, pressed by spontaneous groupings, mutual-protection a.s.sociations, division of labor, market pressures, economies of scale, and rational self-interest there arises something very much resembling a minimal state or a group of geographically distinct minimal states. Why is this market different from all other markets? Why would a virtual monopoly arise in this market without the government intervention that elsewhere creates and maintains it? their rights. Out of anarchy, pressed by spontaneous groupings, mutual-protection a.s.sociations, division of labor, market pressures, economies of scale, and rational self-interest there arises something very much resembling a minimal state or a group of geographically distinct minimal states. Why is this market different from all other markets? Why would a virtual monopoly arise in this market without the government intervention that elsewhere creates and maintains it? 9 9 The worth of the product purchased, protection against others, is The worth of the product purchased, protection against others, is relative: relative: it depends upon how strong the others are. Yet unlike other goods that are comparatively evaluated, maximal competing protective services cannot coexist; the nature of the service brings different agencies not only into compet.i.tion for customers' patronage, but also into violent conflict with each other. Also, since the worth of the less than maximal product declines disproportionately with the number who purchase the maximal product, customers will not stably settle for the lesser good, and competing companies are caught in a declining spiral. Hence the three possibilities we have listed. it depends upon how strong the others are. Yet unlike other goods that are comparatively evaluated, maximal competing protective services cannot coexist; the nature of the service brings different agencies not only into compet.i.tion for customers' patronage, but also into violent conflict with each other. Also, since the worth of the less than maximal product declines disproportionately with the number who purchase the maximal product, customers will not stably settle for the lesser good, and competing companies are caught in a declining spiral. Hence the three possibilities we have listed.

Our story above a.s.sumes that each of the agencies attempts in good faith to act within the limits of Locke's law of nature.10 But one ”protective a.s.sociation” might aggress against other persons. Relative to Locke's law of nature, it would be an outlaw agency. What actual counterweights would there be to its power? (What actual counterweights are there to the power of a state?) Other agencies might unite to act against it. People might refuse to deal with the outlaw agency's clients, boycotting them to reduce the probability of the agency's intervening in their own affairs. This might make it more difficult for the outlaw agency to get clients; but this boycott will seem an effective tool only on very optimistic a.s.sumptions about what cannot be kept secret, and about the costs to an individual of partial boycott as compared to the benefits of receiving the more extensive coverage offered by an ”outlaw” agency. If the ”outlaw” agency simply is an But one ”protective a.s.sociation” might aggress against other persons. Relative to Locke's law of nature, it would be an outlaw agency. What actual counterweights would there be to its power? (What actual counterweights are there to the power of a state?) Other agencies might unite to act against it. People might refuse to deal with the outlaw agency's clients, boycotting them to reduce the probability of the agency's intervening in their own affairs. This might make it more difficult for the outlaw agency to get clients; but this boycott will seem an effective tool only on very optimistic a.s.sumptions about what cannot be kept secret, and about the costs to an individual of partial boycott as compared to the benefits of receiving the more extensive coverage offered by an ”outlaw” agency. If the ”outlaw” agency simply is an open open aggressor, pillaging, plundering, and extorting under no plausible claim of justice, it will have a harder time than states. For the state's claim to legitimacy induces its citizens to believe they have some duty to obey its edicts, pay its taxes, fight its battles, and so on; and so some persons cooperate with it voluntarily. An openly aggressive agency could not depend upon, and would not receive, any such voluntary cooperation, since persons would view themselves simply as its victims rather than as its citizens. aggressor, pillaging, plundering, and extorting under no plausible claim of justice, it will have a harder time than states. For the state's claim to legitimacy induces its citizens to believe they have some duty to obey its edicts, pay its taxes, fight its battles, and so on; and so some persons cooperate with it voluntarily. An openly aggressive agency could not depend upon, and would not receive, any such voluntary cooperation, since persons would view themselves simply as its victims rather than as its citizens.11

INVISIBLE-HAND EXPLANATIONS.

How, if at all, does a dominant protective a.s.sociation differ from the state? does a dominant protective a.s.sociation differ from the state? Was Locke wrong in imagining a compact necessary to establish civil society? As he was wrong in thinking (sects. 46, 47, 50) that an ”agreement,” or ”mutual consent,” was needed to establish the ”invention of money.” Within a barter system, there is great inconvenience and cost to searching for someone who has what you want and wants what you have, even at a marketplace, which, we should note, needn't become a marketplace by everyone's expressly agreeing to deal there. People will exchange their goods for something they know to be more generally wanted than what they have. For it will be more likely that they can exchange this for what they want. For the same reasons others will be more willing to take in exchange this more generally desired thing. Thus persons will converge in exchanges on the more marketable goods, being willing to exchange their goods for them; the more willing, the more they know others who are also willing to do so, in a mutually reinforcing process. (This process will be reinforced and hastened by middlemen seeking to profit in facilitating exchanges, who themselves will often find it most expedient to offer more marketable goods in exchange.) For obvious reasons, the goods they converge on, via their individual decisions, will have certain properties: initial independent value (else they wouldn't begin as more marketable), physically enduring, non-perishable, divisible, portable, and so forth. No express agreement and no social contract fixing a medium of exchange is necessary. Was Locke wrong in imagining a compact necessary to establish civil society? As he was wrong in thinking (sects. 46, 47, 50) that an ”agreement,” or ”mutual consent,” was needed to establish th

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