Part 3 (1/2)

If each individual acts rationally, unlimited by moral constraints, (B, B' B') will emerge. How will things differ, if at all, with the addition of moral constraints? It might be thought that moral considerations require allowing another to do whatever you do; since the situation is symmetrical some symmetrical solution must be found. To this the fishy reply might be made that (B, B' B') is symmetrical, and hence someone performing a B-ish action recognizes that the other will do likewise. But recognizing that another will do likewise is not the same as allowing allowing him to do this. A person performing a him to do this. A person performing a B B-ish action is trying to impose a (B, C' C') solution. What moral right does he have to impose impose this asymmetry, to this asymmetry, to force force others not to behave as he does? But before accepting this strong counterreply as conclusive, we should ask whether each person faces or views himself as facing a symmetrical situation? Each person knows more about himself than he does about the other; each can be surer of his own intentions not to aggress against the other if he finds himself in the dominant power position, than he can be of the others' similar intentions. (Following Acton, we might wonder whether any of us can be sure, or even reasonably confident.) Given this asymmetry of each knowing more about his own intentions than about those of the other party, others not to behave as he does? But before accepting this strong counterreply as conclusive, we should ask whether each person faces or views himself as facing a symmetrical situation? Each person knows more about himself than he does about the other; each can be surer of his own intentions not to aggress against the other if he finds himself in the dominant power position, than he can be of the others' similar intentions. (Following Acton, we might wonder whether any of us can be sure, or even reasonably confident.) Given this asymmetry of each knowing more about his own intentions than about those of the other party,4 isn't it reasonable for each to pursue the isn't it reasonable for each to pursue the B B-ish action? Rather, since it's individually rational, does this asymmetry serve to rebut the argument from symmetry for the (A, A' A') solution and against the (B, B' B') solution? Clearly, things become very messy.

Rather than focusing on the total situation, it would be more promising to ask whether something special about the B B-ish actions excludes them as morally permissible. Does some moral prohibition rule out B? B? If so, we must distinguish the If so, we must distinguish the B B actions from those other prohibitings of actions on the grounds of the risk they present, which we have already held to be legitimate. What distinguishes prohibiting others from joining another protective agency, or forcibly acting to prevent another agency from getting more powerful than your own or yourself from an agency's forbidding others to punish its clients except by a reliable procedure (and punis.h.i.+ng those who disobey this prohibition even should it turn out that the clients did wrong these others and were not innocent)? Let us first consider cases which commonly actions from those other prohibitings of actions on the grounds of the risk they present, which we have already held to be legitimate. What distinguishes prohibiting others from joining another protective agency, or forcibly acting to prevent another agency from getting more powerful than your own or yourself from an agency's forbidding others to punish its clients except by a reliable procedure (and punis.h.i.+ng those who disobey this prohibition even should it turn out that the clients did wrong these others and were not innocent)? Let us first consider cases which commonly are are distinguished. distinguished.

PREEMPTIVE ATTACK.

According to usual doctrine, under some circ.u.mstances a country X X may launch a preemptive attack, or a preventive war, upon another country may launch a preemptive attack, or a preventive war, upon another country Y; Y; for example, if for example, if Y Y is itself about to launch an immediate attack upon is itself about to launch an immediate attack upon X X, or if Y Y has announced that it will do so upon reaching a certain level of military readiness, which it expects to do some time soon. Yet it is not accepted doctrine that one nation has announced that it will do so upon reaching a certain level of military readiness, which it expects to do some time soon. Yet it is not accepted doctrine that one nation X X may launch a war against another nation may launch a war against another nation Y Y because because Y Y is getting stronger, and (such is the behavior of nations) might well attack is getting stronger, and (such is the behavior of nations) might well attack X X when it gets stronger still. Self-defense plausibly covers the first sort of situation but not the second. Why? when it gets stronger still. Self-defense plausibly covers the first sort of situation but not the second. Why?

It might be thought that the difference is merely a matter of greater or lesser probability. When a nation is about to launch an attack, or has announced that it will when and if it reaches a certain level of readiness, the probability is very high that it will attack. Whereas the probability is not as great that any nation getting stronger will attack when it attains greater strength. But the distinction between the cases does not depend upon such probability considerations. For however low the probability, estimated by the ”experts” of neutral countries, of Y Y's launching an attack on X X (in the second case) within the next ten years (0.5, 0.2, 0.05), we can imagine alternatively that Y now is about to wield a super-device fresh out of its scientific laboratories that, with (in the second case) within the next ten years (0.5, 0.2, 0.05), we can imagine alternatively that Y now is about to wield a super-device fresh out of its scientific laboratories that, with that that probability, will conquer probability, will conquer X; X; while with one minus that probability, it will do nothing. (Perhaps this probability is the probability of the device's working, or perhaps the device itself is probabilistic.) The device is set to be wielded within one week; while with one minus that probability, it will do nothing. (Perhaps this probability is the probability of the device's working, or perhaps the device itself is probabilistic.) The device is set to be wielded within one week; Y Y is committed to use it, the timetable is being followed and a countdown has begun. Here is committed to use it, the timetable is being followed and a countdown has begun. Here X X, in self-defense, may attack, or issue an ultimatum that if the device is not dismantled within two days it will attack, and so on. (And what if, though the timetable doesn't call for it, the device can can be used the next day or immediately?) If be used the next day or immediately?) If Y Y were spinning a roulette wheel and with probability 0.025 the damage of war would be inflicted on were spinning a roulette wheel and with probability 0.025 the damage of war would be inflicted on X X, X X could act in self-defense. But, in the second case even when the probability is equal, could act in self-defense. But, in the second case even when the probability is equal, X X may not so act against may not so act against Y Y's arming. Therefore, the issue is not merely a matter of how high the probability is. Upon what, then, if not the magnitude of the probability, does the distinction between the first type of case and the second type rest?

The distinction depends on how the harm, if it eventuates, is related to what Y Y already has done. For some actions that yield various outcomes with various probabilities, nothing more need be done by the agent (after the action is performed) to produce an outcome which, when it eventuates, is something he did or brought about or caused to happen, and so on. (In some cases, further actions of already has done. For some actions that yield various outcomes with various probabilities, nothing more need be done by the agent (after the action is performed) to produce an outcome which, when it eventuates, is something he did or brought about or caused to happen, and so on. (In some cases, further actions of others others might be needed, for example, soldiers obeying a commander's orders.) If such an action yields a high enough probability of a dangerous ”border crossing,” another may prohibit it. On the other hand, some processes might lead to certain possible consequences, but only if further decisions are made by the people engaging in them. Processes might, as in the cases we are considering, place people in a better position to do something, and so make it more likely that they will decide to do it. These processes involve further significant decisions by the persons and the border crossings depend upon might be needed, for example, soldiers obeying a commander's orders.) If such an action yields a high enough probability of a dangerous ”border crossing,” another may prohibit it. On the other hand, some processes might lead to certain possible consequences, but only if further decisions are made by the people engaging in them. Processes might, as in the cases we are considering, place people in a better position to do something, and so make it more likely that they will decide to do it. These processes involve further significant decisions by the persons and the border crossings depend upon these these decisions (made more likely by the process). It is permissible to prohibit the former actions where the person need do nothing more, but not to prohibit the latter processes. decisions (made more likely by the process). It is permissible to prohibit the former actions where the person need do nothing more, but not to prohibit the latter processes.af Why? Why?

Perhaps the principle is something like this: an act is not wrong and so cannot be prohibited if it is harmless without a further major decision to commit wrong (that is, if it would not be wrong if the agent was fixed unalterably against the further wrong decision); it can only be prohibited when it is a planned prelude to the further wrong action. So stated, the principle would protect actions that merely facilitate others' wrongdoing if the acts are harmless in themselves-for example, publis.h.i.+ng the plans of the alarm systems of banks. The act would be tolerated were it known that others would not decide to do wrong. Among such actions, the clearest candidates for prohibition are those which, it is thought, could be done for no reason other than to facilitate wrongdoing. (Even here, can't one always imagine an eccentric with legitimate though odd reasons?) We may avoid this question of whether such actions so clearly intended only to aid the wrongdoing of others may be prohibited. All the actions we are concerned with could be done for perfectly legitimate and respectable reasons (for example, self-defense), and they require further decision to commit wrong by the agent himself, if wrong is to occur.

A stringent principle would hold that one may prohibit only the last wrong decision necessary to produce the wrong. (Or, the last act necessary to an alternative in a set, any one of which is necessary.) More stringent yet would be a principle holding that one may prohibit only the pa.s.sing of the last clear point at which the last wrong decision necessary to the wrong can be reversed. More lat.i.tude is given to prohibition by the following principle (hence it is a weaker principle against prohibition): Prohibit only only wrong decisions and actions on them (or dangerous actions requiring no further wrong decisions). One may wrong decisions and actions on them (or dangerous actions requiring no further wrong decisions). One may not not prohibit actions which are not based on decisions that are wrong, merely on the grounds that they facilitate or make more likely the agent himself later making wrong decisions and doing the wrong actions which follow from them. Since even this weaker principle is sufficient to prohibit actions which are not based on decisions that are wrong, merely on the grounds that they facilitate or make more likely the agent himself later making wrong decisions and doing the wrong actions which follow from them. Since even this weaker principle is sufficient to exclude exclude prohibiting others from strengthening their protective agency or joining another one, we need not decide here which principle is most appropriate. (The two stronger principles, of course, also would exclude such prohibitions.) prohibiting others from strengthening their protective agency or joining another one, we need not decide here which principle is most appropriate. (The two stronger principles, of course, also would exclude such prohibitions.) It might be objected that the principles adumbrated should not be applied to hold impermissible some group A' A's forcibly intervening in the process of B B's strengthening their protective agency. For that process is a special one; if it is successful, A A will be in a far weaker position, if not unable, to enforce the prohibition on wrong when finally will be in a far weaker position, if not unable, to enforce the prohibition on wrong when finally A A is ent.i.tled to do so. How can is ent.i.tled to do so. How can A A be asked to refrain from prohibiting the earlier stages when it knows that any wrongs will be done later when it is unable to oppose them as effectively? But if the early stages of be asked to refrain from prohibiting the earlier stages when it knows that any wrongs will be done later when it is unable to oppose them as effectively? But if the early stages of B B's process involve no commitment to any later wrong, and if B B has good (nonaggressive) reasons for its actions, then it is not absurd to hold that others may not interfere with the earlier and in themselves (supposing certain continuations) harmless stages, even though this abstention will put them in a less strong position later. has good (nonaggressive) reasons for its actions, then it is not absurd to hold that others may not interfere with the earlier and in themselves (supposing certain continuations) harmless stages, even though this abstention will put them in a less strong position later.5 We have found a distinction, which appears theoretically significant, that distinguishes a protective agency's forbidding others from using unreliable or unfair procedures to exact justice on its clients from other prohibitions-such as forbidding others to form another protective agency-which might be thought to be allowable if the first is. For our purposes in this essay we need not provide the theory which underlies this distinction and explains its significance, even though investigating these issues promises to lead very quickly to fundamental questions. It is enough to have reb.u.t.ted the charge we imagined earlier that our argument fails because it ”proves” too much, in that it provides a rationale not only for the permissible rise of a dominant protective a.s.sociation, but also for this a.s.sociation's forcing someone not to take his patronage elsewhere or for some person's forcing others not to join any a.s.sociation. Our argument provides no rationale for the latter actions and cannot be used to defend them.

We have put forth a principle which excludes prohibiting actions not wrong in themselves, actions that merely facilitate or make more likely the commission of other wrongs dependent upon other wrong decisions the agent has not made (yet). (This statement is intentionally ambiguous so as to encompa.s.s the strong and the weak principles.) This principle does not not claim that no one may be held responsible or be punished for attempting to get others to do wrong because to succeed the attempt requires the decision of claim that no one may be held responsible or be punished for attempting to get others to do wrong because to succeed the attempt requires the decision of others others to do wrong. For the principle focuses on whether the thrust toward wrong already has been made and is now out of to do wrong. For the principle focuses on whether the thrust toward wrong already has been made and is now out of that person's that person's hands. It is hands. It is a further a further question whether and to what extent any decisions of others can eliminate his responsibility for the result of his original attempt. Prime candidates for responsibility continuing are attempts to get others to do some wrong, which attempt succeeds (not by accident and in the manner intended, and so forth) in getting them to decide and act wrongly. (In this case, isn't the original act wrong itself, and so question whether and to what extent any decisions of others can eliminate his responsibility for the result of his original attempt. Prime candidates for responsibility continuing are attempts to get others to do some wrong, which attempt succeeds (not by accident and in the manner intended, and so forth) in getting them to decide and act wrongly. (In this case, isn't the original act wrong itself, and so not not protected from prohibition under the conditions of the principle?) protected from prohibition under the conditions of the principle?) The contrasting view holds that the further decisions of others eliminate the responsibility of someone who succeeds in his attempt to get them to act in a certain way; though he persuades them or convinces them or whips them up to do it, they could have chosen to refrain. The following model might underlie this view. For each act, so the model runs, there is a fixed amount of responsibility; this might be measured by how much punishment there is to be for the act. Someone persuaded by another to do something may be punished fully for his action; he may be punished as much as someone who decides all by himself to do the same action. Since all of the punishment for that action is used up, so is all of the responsibility for it; there is no more responsibility or punishment for that action left over to place on another person. So, the argument concludes, a person who persuades another to decide to do something cannot be held responsible for or at all punished for the consequences of the other's action. But this model of a fixed amount of responsibility for an act is mistaken. If two persons each cooperate in murdering or a.s.saulting a third, then each a.s.saulter or murderer may be punished fully. Each may receive the same punishment as someone acting alone, n n years say. They need not each be given years say. They need not each be given n n/2. Responsibility is not a bucket in which less remains when some is apportioned out; there is not a fixed amount of punishment or responsibility which one uses up so that none is left over for the other. Since this model or picture of how responsibility operates is mistaken, a major prop is removed from the view that no one may be punished for persuading another responsible individual to do something.6

BEHAVIOR IN THE PROCESS.

We have argued that even someone who foresees that a protective a.s.sociation will become dominant may not forbid others to join up. But though no one may be forbidden to join up, might not everyone choose choose to stay out, in order to avoid the state at the end of the process? Might not a population of anarchists realize how individual efforts at hiring protection will lead, by an invisible-hand process, to a state, and because they have historical evidence and theoretical grounds for the worry that the state is a Frankenstein monster that will run amuck and will not stay limited to minimal functions, might not they each prudentially choose not to begin along that path? to stay out, in order to avoid the state at the end of the process? Might not a population of anarchists realize how individual efforts at hiring protection will lead, by an invisible-hand process, to a state, and because they have historical evidence and theoretical grounds for the worry that the state is a Frankenstein monster that will run amuck and will not stay limited to minimal functions, might not they each prudentially choose not to begin along that path? 7 7 If told to anarchists, is the invisible-hand account of how the state arises a self-defeating prophecy? If told to anarchists, is the invisible-hand account of how the state arises a self-defeating prophecy?

It will be difficult for such concerted effort to succeed in blocking the formation of the state, since each individual will realize that it is in his own individual interests to join a protective a.s.sociation (the more so as some others join), and his joining or not will not make the difference as to whether or not the state develops. (The B B actions of the earlier matrices are dominant.) However, it must be admitted that other individuals with special motivations would not behave as we have described: for example, people whose religion prohibits purchasing protection or joining with others in protective ventures; or misanthropes who refuse to cooperate with or hire any other persons; or personal pacifists who refuse to support or partic.i.p.ate in any inst.i.tution that uses force, even for their own self-defense. We must restrict our claim that a state would arise from a state of nature, so as to exclude these special psychologies which thwart the operation of the invisible-hand process we have described. For each special psychology, we may insert a specific clause in the claim to exclude it. Thus: in a territory containing rational individuals who also are willing to use force in self-defense and are willing to cooperate with others and to hire them, ... actions of the earlier matrices are dominant.) However, it must be admitted that other individuals with special motivations would not behave as we have described: for example, people whose religion prohibits purchasing protection or joining with others in protective ventures; or misanthropes who refuse to cooperate with or hire any other persons; or personal pacifists who refuse to support or partic.i.p.ate in any inst.i.tution that uses force, even for their own self-defense. We must restrict our claim that a state would arise from a state of nature, so as to exclude these special psychologies which thwart the operation of the invisible-hand process we have described. For each special psychology, we may insert a specific clause in the claim to exclude it. Thus: in a territory containing rational individuals who also are willing to use force in self-defense and are willing to cooperate with others and to hire them, ...

At the close of Chapter 5, we argued that a territory with a dominant protective agency contains a state. Would Locke agree that in such a territory there was a state or civil society? If so, would he say it had been created by a social compact? Clients of the same protective agency are in a state of civil society with respect to each other; clients and independents have exactly the same rights vis-a-vis each other as any two persons in a state of nature, and hence are in a state of nature with respect to each other (Two Treatises of Government, II, sect. 87). But does the fact that the independents yield before the superior power of the dominant protective agency and II, sect. 87). But does the fact that the independents yield before the superior power of the dominant protective agency and don't don't act as executioners of the law of nature against its clients (despite having a right to) mean that they are not in a Lockean state of nature with respect to the clients? Should one say they are in a act as executioners of the law of nature against its clients (despite having a right to) mean that they are not in a Lockean state of nature with respect to the clients? Should one say they are in a de jure de jure state of nature but not a state of nature but not a de facto de facto one? Would Locke use some notion of political or civil society under which there could be a civil society in an area even if not one? Would Locke use some notion of political or civil society under which there could be a civil society in an area even if not every every two people in that area stood in a civil-society relations.h.i.+p with respect to each other? One also would want this notion to be of political interest; if merely two of the many individuals in an area stand in a civil-society relations.h.i.+p with respect to each other, this should be insufficient for there to be civil society in that area. two people in that area stood in a civil-society relations.h.i.+p with respect to each other? One also would want this notion to be of political interest; if merely two of the many individuals in an area stand in a civil-society relations.h.i.+p with respect to each other, this should be insufficient for there to be civil society in that area.8 We have described a process whereby individuals in an area separately sign up for personal protection with different business enterprises which provide protective services, all but one of the agencies being extinguished or all coming to some modus vivendi, modus vivendi, and so on. To what degree, if any, does this process fit what Locke envisioned as individuals ”agreeing with other men to join and unite into a community,” consenting ”to make one community or government” (sect. 95), compacting to make up a commonwealth (sect. 99)? The process looks nothing like unanimous joint agreement to create a government or state. No one, as they buy protective services from their local protective agency, has in mind anything so grand. But perhaps joint agreement where each has in mind that the others will agree and each intends to bring about the end result of this is not necessary for a Lockean compact. and so on. To what degree, if any, does this process fit what Locke envisioned as individuals ”agreeing with other men to join and unite into a community,” consenting ”to make one community or government” (sect. 95), compacting to make up a commonwealth (sect. 99)? The process looks nothing like unanimous joint agreement to create a government or state. No one, as they buy protective services from their local protective agency, has in mind anything so grand. But perhaps joint agreement where each has in mind that the others will agree and each intends to bring about the end result of this is not necessary for a Lockean compact.9 I myself see little point to stretching the notion of ”compact” so that each pattern or state of affairs that arises from the disparate voluntary actions of separately acting individuals is viewed as arising from a I myself see little point to stretching the notion of ”compact” so that each pattern or state of affairs that arises from the disparate voluntary actions of separately acting individuals is viewed as arising from a social compact, social compact, even though no one had the pattern in mind or was acting to achieve it. Or, if the notion is so stretched, this should be made clear so that others are not misled as to its import. It should be made clear that the notion is such that each of the following arises from a social compact: the total state of affairs const.i.tuted by who is married to, or living with, whom; the distribution on a given evening in a given city of who is in what movie theater, sitting where; the particular traffic pattern on a state's highways on a given day; the set of customers of a given grocery store on a given day and the particular pattern of purchases they make, and so on. Far be it from me to claim that this wider notion is of no interest; that a state can arise by a process that fits this wider notion (without fitting the narrower one) is of very great interest indeed! even though no one had the pattern in mind or was acting to achieve it. Or, if the notion is so stretched, this should be made clear so that others are not misled as to its import. It should be made clear that the notion is such that each of the following arises from a social compact: the total state of affairs const.i.tuted by who is married to, or living with, whom; the distribution on a given evening in a given city of who is in what movie theater, sitting where; the particular traffic pattern on a state's highways on a given day; the set of customers of a given grocery store on a given day and the particular pattern of purchases they make, and so on. Far be it from me to claim that this wider notion is of no interest; that a state can arise by a process that fits this wider notion (without fitting the narrower one) is of very great interest indeed!

The view we present here should not be confused with other views. It differs from social compact views in its invisible-hand structure. It differs from views that ”de facto ”de facto might makes state might makes state (legal) right” in holding that enforcement rights and rights to oversee this enforcement exist independently and are held by all rather than confined to one or a small group, and that the process of acc.u.mulating sole effective enforcement and overseeing power may take place without anyone's rights being violated; that a state may arise by a process in which no one's rights are violated. Shall we say that a state which has arisen from a state of nature by the process described has replaced the state of nature which therefore no longer exists, or shall we say that it exists within a state of nature and hence is compatible with one? No doubt, the first would better fit the Lockean tradition; but the state arises so gradually and imperceptibly out of Locke's state of nature, without any great or fundamental breach of continuity, that one is tempted tempted to take the second option, disregarding Locke's incredulousness: ”... unless any one will say the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm” (sect. 94). to take the second option, disregarding Locke's incredulousness: ”... unless any one will say the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm” (sect. 94).

LEGITIMACY.