At the base of most conceptions of the State — indeed of all government by authority — is the idea that the “strong should rule.”
The “might makes right” notion, after all, possesses a certain plausibility. It basically doubles down on one element of everyday reality: the strongest do rule. So they should! In some sense. And that is where it gets tricky. “Whatever is, is right” is hardly a motto to endorse. It is an abdication of anything like ethics. And any ethic which merely restates an is isn’t an ethic really at all. So, between the question of who does rule and who should rule there lies a vast chasm. Logically, anyway. And what has historically bridged it has been a series of maneuvers designed to minimize careful, philosophical thought. The fact that the strong can easily rule the weak in no way suggests that whatever the strong do or say is right. The notion to the contrary, at heart in common sense cynicism — the very tempting position of Callicles in the Gorgias — does not get to the heart of the matter. The basic nature of political governance, and with it the authority of The State, is a matter of convenience, of accommodation to threat, bluster, and brute force. The strong should rule because the weak do not want to risk much, and it is easier for we, the weak many, to comfort ourselves in a hierarchy of sovereign and subject. This is “just the way it is.” So ran the ancient sophistry.
But why? This is the eternal question, an anarchical one — anarchical because it does more than merely suggest that right and might can be totally separate, it marshals that breathtaking thought, that might (perish the thought!) does not make right.
The mere existence and general condemnation of criminals shows that this is indeed the case. The Pirate’s Challenge, as related by St. Augustine in Book IV of The City of God Against the Pagans, makes this very clear:
Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity. Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, “What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor.”
So all attempts to justify the state on might-makes-right grounds begs the question. Sure, it may seem convenient to grant authority to the powerful, for that is mere acceptance of the powerful’s gambits’ likeliest real-world result. And so there is the constant calculus, a settling into hierarchy. Coupled with concerns for the acceptance of a level of force in our lives. Should I rule, or the big guy next door? He could clobber me, so . . . just accept the inevitable. What he says goes.
There is no doubt that the very idea of ruling is a question of force. While it is certainly possible for individuals and families to repel others’ trespass or aggression, this can become quite risky, especially if one has not studied the arts of conflicts and war. While defense comes down to force in the end, hiring off one’s defense to stronger others puts one in a very similar situation to that of the victim of the trespassers and aggressors — easily abused by the strong. While when questions of coercion are put out of our minds, the terms upon which we make deals (trade and hire others) are simple, peaceful matters of negotiating.
But the bargaining situation is muddier when hiring a protector, for the protector relies upon force, and, himself, is tempted to add force to his bargaining position. How much should he ask? Well, what do you have? This becomes a prime question of rulership: who decides the terms of the allocation of the goods being protected — and allowed to accumulate, because of the settling of the rules and rulership? Not, in practice, both bargainers equally. And not by mere market forces, nudging us to an equilibrium price. It becomes unilateral because the added bargaining chip is one of threat. Who decides on the booty, er, wages of the hired? Why, those most prominent in the defense occupation, those professionals who are . . . strongest.
This is the situation in early civilization, where tribes and wanderers came together. The strongest physically were anointed — usually they anointed themselves — as rulers, and then accumulated around them others who were strong. As Augustine related. (The full story is sadder, alas, since most states began by conquest, which is basically just the sad spectacle of the most naked and brutal force imaginable.)
But, as we have learned over time, much of that strength does not remain merely muscle and brevert. Some of it is cleverness and rhetoric and religion and . . . a whole batch of ideas, compromises, protocols, and rites that are often said not merely to justify the rulers’ rules, but constitute justice itself.
The decision-making process in a modern quasi-democracy is not very different. Of course, the traditions of sovereignty that evolved over the eons of civilization led to elaborate systems of domination. When modern republics were formed out of the contests that circumscribed the powers of the monarchs, first by the lords, then the business and professional classes, and finally by the audacious upstarts (revolutionaries), the nature of those traditions that kept the idea of sovereignty alive were altered.
And a few old ideas were revived in novel ways — even evolving into radically new justifications for rulership, congealing around notions that, ultimately, come down to one solid and easily transmittable idea: it is the people who rule. And as David Hume demonstrated, this, too, was a question of might makes right, for no rule of the people does not depend upon the accommodations of those very same people. They are many, and save for problems of co-ordination, could easily swarm (“mob” is what some otherwise-peaceful animals do, against their predators, when they work up their nerve) the few who, by muscle and brainpower, say they should rule. (I wrote about this in the introduction to the Laissez Faire Books edition of the relevant Hume essays.) The ideas that began the modern era, of popular sovereignty, were merely the adoption of a more sophisticated idea of who is strong, and why.
Yes, the very idea of democracy, that decisions should be based on some procedures based on popular opinion, is a matter of strength. In most cases, democrats hold to the notion of “majority rules.” The strength here relies upon numbers. Numbers of people, whose power is added together. The numbers are counted up, the simplest addition of one to an even count is said to be enough to justify some rule or ruler over some other option. And there can be no doubt that the nature of this strength is also based on force. But like the ideas of sovereignty in the early epochs of kingship and oligarchy, there is a sort of idealization of force based on other concepts, concepts that are brought in to make the decision about who decides easier. Some of them were utterly ridiculous, like religious sanction, based on fictional deities and cooked-up myths from the class of smooth-talking layabouts that I am most familiar with today. The majoritarian notion is just the simplest — indeed, in the democratic view, the crudest — form of rarefied strength.
For yes, democracies have indeed used other mechanisms besides the majority vote. Such a vote is not the only way to obtain popular consent by participation of the population itself. The most interesting of these alternate methods is probably sortition: the use of chance, or lotteries, to select spokespeople, or judges — or, in the sole modern institutional case, juries. But other preference voting procedures are worth considering. Supermajority procedures, for instance.
Swedish economist Knut Wicksell thought that the only rational way to decide public policy issues was by supermajority vote, where a decision occurs only upon 55, 60, 75, 80 or 90 percent agreement. Mere majority voting, Wicksell argued, makes it too easy to encourage and accept bad (poorly-thought-out and even evil) rulers and policies. Requiring more agreement than 50 percent plus one means that electors and legislators would have to settle for only those limited programs that a broad number of citizens might likely agree to, were it up to them. Supermajoritarianism is not, of course, widely espoused or advanced as a needful reform — but it is in operation in some public decision-making processes in the United States and elsewhere, especially among legislative bodies.
One reason for supermajority procedures can be summed up in the desire to prevent what Tocqueville called “the tyranny of the majority.” The point is obvious. Majoritarianism gains most of its plausibility from the ease with which it can be grasped. It requires only the simplest arithmetic. Even the unlearned can understand it. But the consequences of its long-term practice can be devastating for individuals and minority groups. And, in the end, for the whole of society, which veers away from sustainable policies in the absurd demand for each to live at the expense of all (or some) others. The results is not merely the institutions that we euphemize as the “welfare state,” it is better understood in the manner advanced by Anthony de Jasay, as the churning state. This is the advanced condition of a state in which there are few sure limits to power, where interests are routinely traded off against each other in a grab bag of shifting alliances, with so much intervention into voluntary society that, under its full development, it becomes impossible to tell who are the losers and who are the winners. We all lose in the mad rush to seek advantage, and the State balloons to huge proportions, beyond measure and reason, justified only by insane political myths and crackpot economic theory.
Of course, these United States also sport many election processes where a mere plurality vote decides an election. The madness that results from this can be reflected in the current presidential contest, still not technically over.
But the problem of all rulership becomes clear when the exercise of authority of one person over another turns into a kind of tyranny. Micro-tyranny. And deciding questions of “who rules” by some variant of the “strongest wins” — no matter how rarefied and idealized — seems ludicrous on the face of it. The only reason most people accept it so easily is that they were once children, ruled by adults, and in the maturation process, their general education consisted of heavy doses of propaganda . . . marshaled, not coincidentally, to encourage submission. Even to moral monsters and master criminals.
But it is not just education, propaganda, and inertia: any acceptance of someone else’s authority mirrors the basic “moral deal.” All universalizable ethical notions basically offer a “deal” to each person: you give up some means of advancement (theft, fraud, murder of competition) for the greater benefits of widespread coöperation that is enabled by the mere settlement of the “who rules” problem.
We all know, on some level, that the very salience of ethics rests on the reciprocal acceptance of certain sacrifices to obtain many greater, if vaguer, rewards. Accepting someone else’s rule looks very similar. And it prepares us to accept what may very well be a raw deal, a deal skewed to others’ interests, not our own — and not even, most likely, the interests of that blessed power-mob, the Majority.
But the similarity between authorization of a ruler and the basic moral deal is neither an identity nor an equality. In law we know that contracts are voided by the coercive element brought to the fore of the negotiation — this is understood as duress. And these “social contracts” that make up modern scenarios for Leviathan’s authority sure do look, in practice, like ominous “offers we cannot refuse.”
Besides, we realize that rulers are not the same, just as policies are not the same. Some work better than others. So, in the very idea of democracy lies the seeds of its own evanescent plausibility. For it is not a special procedure that justifies a deal authorizing the defense of persons and properties, but the extent to which persons and property are defended. As Augustine wrote, “Justice being taken away” undermines all authority; justice added presumably is the only arguable authority.
So our argument takes us back to persons and their rightful property. Mechanisms to ensure their protection must be judged on those very grounds. And what is unjust must first be fought off.
Indeed, it is in the fight against the great harms, the most obvious evils, that constitutes the surest clues to actual morality, as Bernard Gert repeatedly explained.* This was, in fact, the great advancement of Hobbes into the modern world as we know it: morality (universalizable justice, anyway) only makes sense in suppressing the bad, not in achieving the supreme good, the summum bonum. The realm of justice is the realm of obligation (coercible conduct), but achieving great goods, the highest ideals, the magnificent achievements — these all belong to a different realm of ethical thought, the realm Lon Fuller called “the morality of aspiration.” It is the business of the State to prevent the greatest harms, not promote the greatest goods. This is all that justice requires, all it allows.
And this follows neatly from the basic epistemically problem: How do we know what is just? Well, we look to the long traditions of sorting out the greatest injustices. What we know of justice we have learned in the long years of legal and moral contest, in communities and courts, upon breaches of the peace. Not from the procedures of governance, and governors’ excuse-making. It must all come back to the ideas of justice we glean through the course of actual adjudications of disputes. And these evolved traditions tend to point in one direction, so long as we keep in mind the Pirate’s Challenge: towards a severe limitation of the authority of the State.
Sovereignty belongs to the people, sure: not to just a few. But sovereignty belongs not to the people as a whole, but to individual human beings. (A point first coherently advanced by Josiah Walker, and developed explicitly by John Stuart Mill†.) And we have found no way of determining what separates crime from innocent conduct than in the general features of human interaction. We take as rights claims to be free of initiated coercion. And the wrongness of such aggression justifies self defense, as well as the acquisition of property apart from the claims of envious individuals and mobs. And any regime, no matter how constituted, must be judged by how that regime defends these rights. Crime is the abridgment of those rights. And states are criminal when they engage in plunder, in any form. Indeed, through the contest of partisan democracy, modern states encourage gross evils, encouraging by mass rituals (elections) people’s consolidation into warring camps, each seeking to gain an advantage over the other.
The question of who is strong? evolves away from considerations of brute force and naked, imminent threat to considerations of idealized combat, and the who shifts from a few to the many, and then to the many considered not as groups but considered as individuals. The procedures of adjudication, instantiated in legal evolution — especially when operating apart from the commands of “sovereigns” — provide us huge and salient clues as to what justice is, and they provide the standards by which to judge claims of particular regimes and regimens to rule.
In the end, it is individuals who must rule themselves, and find ways to defend selves and others without criminalizing their relationships with others in the very act. The evolution of civilization is this very process, of moving, as Plato said, from Force to Persuasion.‡
Who should rule? You should rule you; I should rule me. When we collide and squabble and wander off the path of peace, descending into discord, strife, our complaints should be adjudicated publicly, according to procedures that do not — if at all possible — depend on criminal acts of initiated force and compliance by duress.
* See Bernard Gert’s The Moral Rules: A New Rational Foundation for Morality (1966) and especially Morality: Its Nature and Justification (2005), page 8.
† See my introduction to J. S. Mill’s On Liberty (Laissez Faire Books, 2015), currently unavailable, unfortunately.
‡ See Plato’s Republic. But for the basic idea expanded upon, consult Alfred North Whitehead, Adventures of Ideas (1933), Chapter Five, “From Force to Persuasion.”